Mandatory(?) Minimums: R v Nasogaluak
Friday’s equivocal Supreme Court of Canada (“SCC”) decision in R v Nasogaluak, 2010 SCC 6 [Nasogaluak], can be viewed both as upholding mandatory minimum sentences and as “a noteworthy chink in the previously impenetrable wall” of mandatory minimums. The Court held that, despite conclusive evidence of a Charter violation emanating from police violence, the sentencing judge had no discretion to reduce the accused’s sentence below the statutorily mandated minimum. However, the Court also noted that for some “particularly egregious” forms of state misconduct, sentence reduction below a mandatory minimum may be appropriate under s. 24(1) of the Charter.
On May 12, 2004, after receiving a tip about an intoxicated driver in Leduc, Alberta, the RCMP engaged in a high-speed pursuit of Mr. Lyle Nasogaluak, a 24-year-old male of Inuit and Dene descent. Once the pursuit concluded, Mr. Nasogaluak refused to comply with the police officers’ orders to exit the car and resisted arrest. The police had to forceably remove him from his car and in doing so, one of the officers punched him twice in the head and wrestled him to the ground. Mr. Nasogaluak continued to resist arrest. He was punched in the head a third time by the same police officer. He refused to offer up his arms to be handcuffed. Another officer punched him twice in his upper back to free his arms and handcuff him.
From the scene of the arrest, Mr. Nasogaluak was taken to a police detachment to provide breath samples. Although there were no visible signs of injury, Lyle was crying and expressing pain and stated the he couldn’t breathe on at least two occasions. The police gave him no medical attention. He was released the next morning and checked himself into the hospital where it was determined that he had suffered two broken ribs as a result of the police violence, which further caused a punctured and collapsed lung and required immediate emergency surgery.
No video recordings of either the arrest or the happenings at the police detachment were made. The officers on the scene did not mention any use of force or drawing of weapons in their written reports, nor did they provide their colleagues anything beyond minimal information about the circumstances of the arrest.
Mr. Nasogaluak entered a guilty plea for impaired driving under s. 253(a) and evading police under s. 249.1(1) of the Criminal Code, RSC 1985, c C-46. At sentencing at the Alberta Court of the Queen’s Bench, the accused moved to stay the proceedings on grounds of police conduct in breach ss.7, 11(d), and 12 of the Charter. The trial judge made a finding of fact that the RCMP had used excessive force during the accused’s arrest. He held that the actions violated the accused’s s. 7 rights.
The trial judge noted that the typical sentence for impaired driving and evading the police is 6 to 18 months of incarceration. However, as remedy for the Charter breach, the judge relied on s.24(1) of the Charter to grant the accused a conditional discharge from both offences and a one-year driving prohibition.
The majority of the Court of Appeal allowed the Crown’s appeal on the grounds that a sentencing judge has no discretion to reduce a sentence below the mandatory minimum. The Court of Appeal upheld the judge’s finding of fact that excessive force was used by the police, that the accused’s s.7 rights were violated, and that the sentence could be reduced under s. 24(1) of the Charter. The Court of Appeal set aside the conditional discharge and entered a conviction for impaired driving with the statutory minimum fine of $600 for a first offence. Since evading a police officer has no mandatory minimum, the Court of Appeal did not interfere with the trial judge’s conditional discharge on that count.
The unanimous SCC judgment, delivered by Justice Lebel, upheld the Court of Appeal’s decision. The Court cursorily rejected the Crown’s submissions that the Court of Appeal erred in upholding the trial finding of fact and the finding of a violation of s. 7:
[A Charter] breach is easily made out on the facts of this case. The substantial interference with Mr. Nasogaluak’s physical and psychological integrity that occurred upon his arrest and subsequent detention clearly brings this case under the ambit of s.7 (at para 38).
Discretionary Sentencing under the Criminal Code
The SCC parted with the lower courts in the choice of procedure adopted when dealing with Charter breaches at the sentencing phase of a trial. According to Justice Lebel, considering Charter breaches when determining the appropriate sentence “may be accomplished without resort to s.24(1) of the Charter, given the court’s broad discretion under ss. 718 to 718.2 of the Criminal Code to craft a fit sentence that reflects all the factual minutiae of the case” (at para 47). He further noted that courts have discretion to lower sentences even where state misconduct does not rise to the level of a Charter violation.
This discretion, however, does not go to the extent that a court could reduce a sentence below a statutorily mandated minimum sentence, even in the presence of the Charter violation. The sentencing discretion available under the Criminal Code must be exercised within the confines of that Code. Courts must respect the legislative intent inherent in mandatory minimums and in other statutory provisions that restrict sentencing.
Sentence Reduction Under s. 24(1)
Moving on to the question of sentence reduction as a remedy under s. 24(1), Justice Lebel briefly reviewed the conflicting case law on whether this is an appropriate use of s. 24(1). He concluded that “the judgments relying on s. 24(1) appear to have been concerned about instances of abuse of process or misconduct by state” which are appropriate factors to take into consideration under the sentencing provisions of the Criminal Code, without relying on s. 24(1) (para 63). To this extent, it appears that Nasogaluak overturns the long-standing approach to sentence reduction under s. 24(1) coined in R v Glykis (1995), 24 OR (3d) 803 (CA)).
However, in a very short closing paragraph, the Court left open the possibility that “in some exceptional cases” s.24(1) could be used to grant a sentence reduction that went outside legislative bounds. In these exceptional cases, a court could also use its “just and appropriate” discretion to disregard the statutorily mandated minimum and allot a sentence lower than the mandatory minimum.
Judicial Discretion & (Non)Mandatory Minimums
The judgment is welcome in its affirmation of broad judicial discretion in sentencing without the need to resort to the Constitution. The Code provides an effective framework of sentencing principles which sentencing judges can use to craft the most proportionate and appropriate penalty given the circumstances of the case. Even state misconduct that does not rise to the level of a Charter violation can be a factor in discretionary sentence reduction.
The parting paragraph of Justice Lebel’s judgment also re-opens the possibility of constitutional exemptions to mandated minimum sentences for egregious Charter violations. According to Professor Kent Roach, this aspect of the judgment is inconsistent with the Court’s earlier decision in R v Ferguson, 2008 SCC 6 [Ferguson] (see TheCourt.ca’s summary and analysis of that case). In Ferguson, the Court strongly rejected the possibility of sentencing below the mandatory minimum, even under s.24(1) and even where a violation of s.12 (cruel and unusual punishment) has been established.
Nasogaluak is not simply a reversal of Ferguson, but indicates a clarification of the overall sentencing framework. It opens the door to constitutional interference with mandatory minimums but simultaneously establishes the threshold at which the constitutional remedy is engaged at a much higher level than previously envisaged. What exactly constitutes an “exceptional case” of “some particularly egregious form” of Charter violation that is worse than the violations in Nasogaluak will probably (but sadly) be resolved by the Court in a future case.