A chink in mandatory minimums

As mandatory sentences are becoming more common and with Bill C-25 limiting credit for time served in remand, such thresholds are being seen as steadily eroding judicial discretion. The most notable wave washing ashore on judicial benches was seen in the Conservatives’ Tackling Violent Crime Act (Bill C-2 passed in 2008). The government is rationalizing mandatory minimums as the public’s desire to see more uniformity in sentencing practices. But the price of such sentencing “fits,” more solidly entrenched in the U.S., is taking its own toll on the Canadian justice system.

The issue has triggered debate over just how solid the mandatory minimum rule is. The Supreme Court of Canada’s R. v. Nasogaluak ruling has become a focal point as it tries to answer that question in the context of judicial discretion and how upholding mandatory sentencing may collide with the Charter of Rights and Freedoms.

Yet, Nasogaluak tackles only one of three key areas affected by mandatory minimums. It sheds light on where judicial discretion lies as judges are faced with crafting remedies and applying sentences that attempt to “fit” the crime, meet societal expectations, the Criminal Code’s sentencing requirements, and Parliament. It does little to answer questions such as how they affect the accused held in remand centres and the impact on the convicted individual after the trial.

Supreme Court Justice Louis LeBel reasons in Nasogaluak that: “A relatively new phenomenon in Canadian law, the minimum sentence is a forceful expression of governmental policy in the area of criminal law.” Government intrusion, forceful or not, has drawn sharp criticism from the legal community. In 2007, retired Quebec justice John Gomery called the Conservative government’s move to improve mandatory minimums for drug offences (bill C-15) a “slap in the face” to judges, suggesting they cannot craft their own remedies for individual cases. The comments are not far off the mark of those of Toronto criminal and civil rights lawyer Clayton Ruby, an intervener for the Criminal Lawyers’ Association in Nasogaluak. “We have a government that does not like judges and does not trust judges,” he says.

Nasogaluak, though, also draws attention since it deals with mandatory sentences and constitutional issues over sentence reductions due to state transgressions. Nasogaluak stems from the May 12, 2004 Leduc, Alta., arrest of Lyle Nasogaluak, a young Inuit and Dene male stopped by RCMP for impaired driving after a high-speed chase. He resisted arrest and was punched in the head and the lower back before being taken to the police station for a breathalyzer. Although crying, expressing pain, and stating he couldn’t breath, he was given no medical attention until his release the next morning when he entered a hospital and doctors found he had a perforated and collapsed lung requiring immediate surgery.

At trial, Nasogaluak entered guilty pleas on both counts but argued his rights under ss. 7, 1(d), and 12 of the Charter had been violated. The Court of Queen’s Bench ruled excessive force had violated his s. 7 rights. The trial judge deviated from the standard six- to 18-month jail sentence normally given for the two offences, sentencing him to a conditional discharge and a one-year driving suspension.

On the Crown’s appeal, the Alberta Court of Appeal stated the trial judge could not go below the mandatory minimum on the impaired charge and did not allow the discharge. However, it upheld the finding for excessive force and imposed a statutory minimum fine of $600 for a first offence. The appeal court held that since there wasn’t a mandatory minimum for evading a police officer, it wouldn’t interfere with the trial judge’s sentence.

The Supreme Court unanimously upheld the appeal decision despite the Crown arguing the court erred in upholding findings of fact and finding a violation under s. 7. LeBel’s reasons clarified main areas that judges consider when crafting a “fit” in sentencing or devising a remedy. The first was straying from what is a normal or average sentence given out versus a set mandatory minimum threshold. “Sentencing judges, while they can order a sentence outside the general range set by case law as long as it is in accordance with the principles and objectives of sentencing, cannot override a clear statement of legislative intent and reduce a sentence below a statutory mandated minimum, absent a declaration that the minimum sentence is unconstitutional,” he reasoned. “Although in some exceptional cases a sentence reduction outside statutory limits may be possible under s. 24(1) of the Charter as the sole effective remedy for egregious misconduct by state agents,” he wrote, but he did not believe Nasogaluak fell into this category.

The ruling is seen as a chink in barriers imposed by mandatory minimums. Ruby maintains it sets out for the first time that in “narrow circumstances” relating to Charter application “the minimum is not evoked.” “It’s only a framework, no more than a framework and in narrow and unusual circumstances, you can go below the minimum,” says Ruby.

Nasogaluak is seen as extending 2000’s R. v. Ferguson, which maintained that letting sentencing fall below the mandatory minimums would be unlawful interference with the role of Parliament. Nasogaluak essentially provides balance in that the Charter is the overriding document against all laws set forward by parliamentarians or legislators and must be measured.

Graham Johnson, the Edmonton defence lawyer who argued the appeals in Nasogaluak with senior partner Laura Stevens, says the ruling thwarts the Crown’s attempt to lock down mandatory minimums as firm barriers. “The courts in their deliberating have decided that they do not want to close the door to the idea that you can never go below the mandatory minimum as a Charter remedy,” he says.

Johnson notes another element that has come out of Nasogaluak — seeking redress or remedy for a state or police transgression outside the Charter. “Where there has been inappropriate contact by the state, a sentence can be dramatically reduced without a cumbersome Charter application,” he says.

LeBel based his reasons not on s. 24(1) but on the Criminal Code. “Section 718.2(a) of the Code provides that a court should reduce a sentence ‘to account for any relevant . . . mitigating circumstances relating to the offence or the offender.’ It would be absurd to suggest that simply because some facts also tend to suggest a violation of the offender’s Charter rights, they could no longer be considered relevant mitigating factors in the determination of a fit sentence.”

LeBel’s ruling says the Charter’s “overarching values and principles” provide a proper sentencing application. “I do not foreclose, but do not need to address in this case, the possibility that, in some exceptional cases, sentence reduction outside statutory limits, under s. 24(1) of the Charter, may be the sole effective remedy for some particularly egregious form of misconduct by state agents in relation to the offence and to the offender. In that case, the validity of the law would not be at stake, the sole concern being the specific conduct of those state agents.”

Nasogaluak is not a victory for the Crown as it clearly indicates the courts can weigh the state’s conduct as much as the accused in forging a “fit” sentence. Nathan Whitling of Parlee McLaws LLP in Edmonton, representing the Criminal Trial Lawyers’ Association, calls it an “excellent” decision clarifying several aspects of the law. “The court confirmed that when a prisoner’s rights are violated in the course of his arrest, the courts can take that into account and reduce the sentence as a remedy for those violations,” says Whitling, adding it has been done in the courts in the past, but not been affirmed at the SCC level. The 1995 Ontario Court of Appeal ruling in R. v. Glykis originally set “severe restrictions on such a remedy” while Nasogaluak “did away with those,” he says. In the past, addressing such state transgressions might simply have resulted in an increase in the time credited in remand or awaiting sentencing.

Whitling says “one of the interesting parts about this case” is when excessive use of force by the state can be seen as a Charter violation. “That issue is not crystal clear and is still not crystal clear,” but it is clear that it can result in a Charter violation.

B.C. defence lawyer Marvin Stern is quick to pick up on the impact Nasogaluak lends to client cases. “The door is open,” he says, to going below the mandatory minimum. “How wide it has been opened — that was not determined in the case.” But Nasogaluak does allow lawyers to lean inward hoping for entry. Stern gives an example of an individual who was charged with an offence where there was no mandatory minimum. The case was adjourned for lack of court time and before it began again, the Crown added a second charge with a mandatory minimum. “I foresee making a charge that is an abuse of process,” says Stern, adding the remedy might be a sentence reduction extending into or beyond the mandatory minimum.

Despite new boundaries created on and off the bench by mandatory minimums, many lawyers see problems with mandatory minimums that attempt uniformity in sentencing. “Not everyone [convicted] has the same degree of moral culpability,” says Johnson. He maintains that more accused who might have entered a guilty plea with consideration for the circumstances are now fighting a charge, especially if there is associated jail time or loss of driving privileges. “They feel they have nothing to lose,” he says. “You are spending a ton of time on appeals” and what may once have been a short court appearance is now magnified into a longer trial and/or appeal, further clogging the court system.

Johnson points to another difficulty. “It changes a justice system,” he says. With the judge’s discretionary ability removed there is more pressure on attempts to plea bargain around a mandatory minimum. Ruby puts it more succinctly: “It’s a right-wing American trend that snatches power from the judges and gives it to the prosecutors.” Johnson states, “Mandatory minimums don’t work, there is clear evidence of that. Instead, they serve a political purpose.”

Yet, mandatory minimums continue to creep into Canadian law, limiting how judges can deal with individuals. The newly passed Bill C-25 now limits the amount of time judges can credit to accused held in detention prior to sentencing. Under the new system, judges will credit time on a one-to-one basis with some flexibility to increase that to one-and-half times in exceptional cases. The former ratio was two-to-one, with the ability to increase to a three-to-one ratio. Crediting the prisoner extra time prior to sentencing was seen as a reflection of lack of facilities and according to the federal justice material, a means of reducing inmate populations.

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