Top court bucks tough-on-crime trend


Taking flexible approach, Supreme Court of Canada rules in favour of reduced sentences for defendants abused by police

The Supreme Court of Canada building in Ottawa. Sean Kilpatrick 2008

Kirk Makin

From Saturday's Globe and Mail


In a decision that bucks the trend toward tough-on-crime sentences, the Supreme Court of Canada has spoken in favour of reducing prison terms for defendants who were abused by police.

The 9-0 ruling in the case of an Alberta man who was beaten by police after a car chase also created a noteworthy crack in the previously impenetrable wall of mandatory minimum sentences.

The court said that a mandatory minimum can be ignored in a case that shows a “particularly egregious form of misconduct by state agents in relation to the offence and to the offender.”

The ruling endorsed a flexible approach to lightening sentences when the state trampled the rights of an accused, even if the abuse was not so excessive that it amounted to a Charter violation.

Besides police brutality, other examples of state abuses include unreasonable trial delays and unwarranted strip searches.

Kent Roach, a University of Toronto law professor, said that the ruling runs counter to a tough-on-crime approach that has dominated Parliament in recent years.

“This is an affirmation of a fairly flexible and rich view of sentencing that is quite different than the view of sentencing that animates most of the mandatory minimum proposals,” Prof. Roach said.

“The approach to sentencing here is much more flexible and much more discretionary than is currently in vogue in Parliament.”

Nonetheless, the court upheld a mandatory minimum sentence for Lyle Marcellus Nasogaluak – a drunk driver who was beaten by police after a high-speed chase on May 12, 2004.

On Friday, however, a spokeswoman for federal Justice Minister Rob Nicholson denied that the ruling runs against its tough-on-crime approach.

“On the contrary, the Supreme Court’s decision is based on the specific facts of the case before it in which it upheld the Alberta Court of Appeal’s decision, therefore confirming that mandatory minimums do have a role in our justice system,” said the spokeswoman, Pamela Stephens.

Policed pulled Mr. Nasogaluak, now 30, from his car, wrestled him to the ground and punched him several times, breaking some of his ribs.

Mr. Nasogaluak pleaded guilty to impaired driving and fleeing police. His trial judge ruled that, since police had breached Mr. Nasogaluak’s right to life, liberty and security, he would not be subject to the mandatory minimum sentence – a $600 fine. Instead, he was given a conditional sentence involving probation.

The Alberta Court of Appeal disagreed and imposed the mandatory minimum fine. The Supreme Court upheld that decision yesterday.

“The broader context here is that sentencing reductions are a very practical, one-stop shopping remedy for an accused who has been treated badly in the criminal process,” Prof. Roach said.

He said that the ruling represents a subtle retreat from a 2007 Supreme Court ruling in R v. Ferguson, where the court strongly upheld the inviolability of mandatory minimum sentences.

“This decision does not sit very well with Ferguson,” Prof. Roach said. “There seems to be an inconsistency in the court’s approach.”