R. v. Nasogaluak, 2010 SCC 6, [2010] 1 SCR 206

                                                 SUPREME COURT OF CANADA

Between:

Her Majesty The Queen in Right of the Province of Alberta

Appellant / Respondent on cross‑appeal

and

Lyle Marcellus Nasogaluak

Respondent / Appellant on cross‑appeal

‑ and ‑

Director of Public Prosecutions of Canada, Attorney General

of Ontario, Attorney General of Manitoba, Canadian Civil

Liberties Association, Criminal Lawyers’ Association

(Ontario) and Criminal Trial Lawyers’ Association

Interveners

Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

______________________________

R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206

Her Majesty The Queen in Right

of the Province of Alberta                                                    Appellant/Respondent on cross‑appeal

v.

Lyle Marcellus Nasogaluak                                                Respondent/Appellant on cross‑appeal

and

Director of Public Prosecutions of Canada, Attorney General

of Ontario, Attorney General of Manitoba, Canadian Civil

Liberties Association, Criminal Lawyers’ Association

(Ontario) and Criminal Trial Lawyers’ Association                                                       Interveners

Indexed as:  R. v. Nasogaluak

2010 SCC 6

File No.:  32423.

2009:  May 20; 2010:  February 19.

Present:  McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

on appeal from the court of appeal for alberta

Constitutional law — Charter of Rights  — Right to life, liberty and security of person — Police abuse — Whether police officers used excessive force during accused’s arrest — If so, whether police conduct amounted to violation of accused’s rights under s. 7  of Canadian Charter of Rights and Freedoms .

Constitutional law — Charter of Rights  — Remedy — Sentence reduction — Police abuse — Breaches of accused’s constitutional rights during arrest and detention — Whether sentence reduction can be just and appropriate remedy under s. 24(1)  of Canadian Charter of Rights and Freedoms  for breach of accused’s constitutional rights — Whether breaches of accused’s constitutional rights should be addressed through sentencing process under Criminal Code  — Limits on sentencing judge’s discretion to reduce sentence as Charter  remedy.

Criminal law — Sentencing — Sentence reduction — Breach of accused constitutional rights — Police officers using force during accused’s arrest — Whether police officers used excessive force — If so, whether police conduct amounted to breach of accused’s constitutional rights — Whether sentencing judge can take police misconduct into account to reduce accused’s sentence — Limits on sentencing judge’s discretion to reduce sentence pursuant to sentencing provisions of Criminal Code  or s. 24(1)  of Canadian Charter of Rights and Freedoms  — Whether accused’s sentences lawfully reduced.

The RCMP received a tip about an intoxicated driver which led to a high speed pursuit of the accused.  When the accused’s car finally came to a stop, the police had to remove him forcibly.  He resisted.  One officer, C, punched him twice in the head while wrestling him out of the car.  Once the accused was out of the car, he continued to resist.  C yelled at the accused to stop resisting and gave him a third hard punch in the head.  The accused was pinned face down on the pavement with C straddling his back and another officer kneeling on his thigh.  He refused to offer up his hands to be handcuffed, so a second officer, D, punched him twice in the back, breaking the accused’s ribs, which ultimately led to a punctured lung.

At the police detachment following the arrest, the accused provided breath samples that placed him over the legal blood alcohol limit.  The officers did not report the force they had used during the arrest and provided little to no information about the incident.  The accused had no obvious signs of injury and did not expressly request medical assistance and no attempts were made to ensure that the accused received medical attention.  He, however, twice told an officer that he was hurt.  As well, he was observed crying, was heard to say that he could not breathe, and was observed leaning over and moaning.  The accused was released the following morning and checked himself into a hospital.  He was found to have suffered broken ribs and a collapsed lung that required emergency surgery.

The accused entered a guilty plea to charges of impaired driving and flight from police.  At sentencing, the trial judge held that the police had used excessive force in arresting the accused and breached his rights, inter alia, under s. 7  of the Canadian Charter of Rights and Freedoms .  As a remedy under s. 24(1)  of the Charter , he reduced the accused’s sentence below what he otherwise would have imposed and he ordered a 12‑month conditional discharge on each count, served concurrently, with a one‑year driving prohibition.

The majority of the Court of Appeal held there was sufficient evidence to support the trial judge’s conclusion that the officers used excessive force in breach of s. 7  and upheld the decision to grant reduced sentences under s. 24(1) .  They added, however, that a sentencing judge has no discretion to reduce a sentence below a statutorily mandated minimum sentence.  The majority thus set aside the conditional discharge on the impaired driving offence, entered a conviction, and ordered the minimum fine for a first offence mandated by s. 255(1)  of the Criminal Code .  They did not interfere with the conditional discharge for the offence of evading a police officer.

Held:  The appeal and cross‑appeal should be dismissed.

While police officers may have to resort to force in order to complete an arrest or to prevent an offender from escaping their custody, the allowable degree of force is constrained by the principles of proportionality, necessity and reasonableness.  Under s. 25(1) of the Criminal Code , the use of force to effect a lawful arrest is justified if the police officer believes on reasonable and probable grounds that it is necessary and if only as much force as necessary is used.  Further, under s. 25(3) , force intended or likely to cause death or grievous bodily harm is prohibited unless the officer has an objectively reasonable belief that the amount of force used is necessary for self‑protection or for the protection of another person.  In this case, the Court of Appeal did not err in upholding the trial judge’s findings that the police used excessive force and breached s. 7  of the Charter .  The accused was pinned beneath C at the time of D’s punches which were forceful enough to break two of the accused’s ribs.  D did admit at the sentencing hearing that he did not believe that C’s third punch was necessary.  The arresting officers’ failed to report the extent of the accused’s injuries and failed to ensure that he received medical attention.  Their conduct was a substantial interference with the accused’s physical and psychological integrity and security of the person.  The breach of the accused’s s. 7  rights was not in accordance with any principle of fundamental justice.

As regards the accused’s sentences, the principle of proportionality is central to the sentencing process set out in the Criminal Code  and requires that a sentence must speak out against the offence but may not exceed what is just and appropriate given the moral blameworthiness of the offender and the gravity of the offence.  The determination of a fit sentence is, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case.  No one sentencing objective trumps the others and the relative importance of any mitigating or aggravating factors will push a sentence up or down the scale of appropriate sentences for similar offences.  The sentencing judges’ discretion to craft a sentence which is tailored to the nature of the offence and the circumstances of the offender, while broad, is not without limits.  His discretion is limited by case law, which sets down general ranges of sentences for particular offences which are to be used as guidelines in order to encourage consistency between sentencing decisions.  It is also limited by statutes through the general sentencing principles and objectives enshrined in the Criminal Code  and through legislated restrictions on the availability of certain sanctions for certain offences.  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.

Where the police or state misconduct relates to the circumstances of the offence or the offender, the sentencing judge may properly take the relevant facts into account in determining a fit and proportionate sentence, without having to resort to s. 24(1)  of the Charter .  The circumstances of an alleged Charter  breach which align with the circumstances of the offence or the offender such that they are pertinent to the sentencing regime may be relevant mitigating factors warranting a reduced sentence.  This is true as well for state misconduct which does not amount to a Charter  breach but which impacts the offender.  As a general rule, it is neither necessary nor useful to invoke s. 24(1)  of the Charter  to effect an appropriate reduction of sentence to account for any harm flowing from unconstitutional acts of state agents consequent to the offence charged.  Focusing on whether impugned acts constitute Charter  breaches and relying on s. 24(1)  as the authority to reduce a sentence misapprehends the flexible and contextual nature of the sentencing process.  The sentencing provisions of the Criminal Code , on their own, provide remedial protection to individuals whose rights have been infringed.  The broad discretion of the sentencing judge, however, must be exercised within the parameters of the Code.  The sentence must respect statutory minimums and other provisions which prohibit certain forms of sentence available in the case of specific offences.  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, this is not such a case.

Cases Cited

Considered:  R. v. Glykis (1995), 84 O.A.C. 140; R. v. Munoz, 2006 ABQB 901, 69 Alta. L.R. (4th) 231; R. v. Pigeon (1992), 73 C.C.C. (3d) 337; R. v. Panousis, 2002 ABQB 1109, 329 A.R. 47, rev’d 2004 ABCA 211 (CanLII); R. v. Kirzner (1976), 14 O.R. (2d) 665; R. v. Charles (1987), 61 Sask. R. 166; R. v. Carpenter, 2002 BCCA 301, 168 B.C.A.C. 137; referred to:  R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Ferguson, 2006 ABCA 261, 397 A.R. 1, aff’d 2008 SCC 6, [2008] 1 S.C.R. 96; R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455; Chartier v. Greaves, [2001] O.J. No. 634 (QL); R. v. Bottrell (1981), 60 C.C.C. (2d) 211; R. v. Morgentaler, [1988] 1 S.C.R. 30; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; R. v. Solowan, 2008 SCC 62, [2008] 3 S.C.R. 309; R. v. Wilmott (1966), 58 D.L.R. (2d) 33; R. v. M. (C.A.), [1996] 1 S.C.R. 500; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Hamilton (2004), 72 O.R. (3d) 1; R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Bill (1998), 13 C.R. (5th) 125; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90; R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; R. v. McDonnell, [1997] 1 S.C.R. 948; R. v. Shropshire, [1995] 4 S.C.R. 227; R. v. McKnight (1999), 135 C.C.C. (3d) 41; R. v. Bosley (1992), 18 C.R. (4th) 347; R. v. Leaver (1996), 3 C.R. (5th) 138; R. v. Steinberg, [1967] 1 O.R. 733; R. v. Cooper (No. 2) (1977), 35 C.C.C. (2d) 35; R. v. Simon (1975), 25 C.C.C. (2d) 159; R. v. Parisien (1971), 3 C.C.C. (2d) 433; R. v. Burke, [1968] 2 C.C.C. 124; R. v. Fairn (1973), 12 C.C.C. (2d) 423; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Bear (1988), 72 Sask. R. 99; R. v. S.L.L., 2002 SKQB 425, 229 Sask. R. 96; R. v. Foulds, [1998] S.J. No. 560 (QL); R. v. Dennison (1990), 109 N.B.R. (2d) 388; R. v. MacPherson (1995), 166 N.B.R. (2d) 81; R. v. Zwicker (1995), 169 N.B.R. (2d) 350; Carlini Bros. Body Shop Ltd. v. R. (1992), 10 O.R. (3d) 651; R. v. Grenke, 2004 ONCJ 121, 7 M.V.R. (5th) 89; Québec (Procureur général) v. Chabot, [1992] R.J.Q. 2102; R. v. Mater (1988), 47 C.R.R. 351; R. v. Pasemko (1982), 17 M.V.R. 247; R. v. Grimes (1987), 70 Nfld. & P.E.I.R. 11; R. v. MacLean, [1988] O.J. No. 2515 (QL); R. v. Pelletier (1986), 42 M.V.R. 67.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 7 , 8 , 9 , 10 (b), 11 (d), 12 , 15 , 24(1) .

Criminal Code, R.S.C. 1985, c. C‑46, ss. 25 , 27 , 249.1(1) , 253 (a), 255(1) (a)(i), 718  to 718.2 , 730 , 731 , 732 , 734 , 742.1 .

Authors Cited

Manson, Allan.  “Charter Violations in Mitigation of Sentence” (1995), 41 C.R. (4th) 318.

Roberts, Julian V., and David P. Cole.  “Introduction to Sentencing and Parole”, in Julian V. Roberts and David P. Cole, eds., Making Sense of Sentencing.  Toronto:  University of Toronto Press, 1999, 3.

APPEAL and CROSS‑APPEAL from a judgment of the Alberta Court of Appeal (Côté, McFadyen and Martin JJ.A.), 2007 ABCA 339, 84 Alta. L.R. (4th) 15, 422 A.R. 222, 415 W.A.C. 222, 229 C.C.C. (3d) 52, 53 C.R. (6th) 382, 162 C.R.R. (2d) 332, [2008] 2 W.W.R. 387, 54 M.V.R. (5th) 199, [2007] A.J. No. 1217 (QL), 2007 CarswellAlta 1502, allowing in part an appeal by the Crown from conditional discharges on charges of impaired driving and evading a police officer. Appeal and cross‑appeal dismissed.

Susan D. Hughson, Q.C., for the appellant/respondent on cross‑appeal.

Laura K. Stevens, Q.C., and Graham Johnson, for the respondent/appellant on cross‑appeal.

Kevin Wilson and Moiz Rahman, for the intervener the Director of Public Prosecutions of Canada.

Benita Wassenaar, for the intervener the Attorney General of Ontario.

Cynthia Devine, for the intervener the Attorney General of Manitoba.

Andrew K. Lokan and Danny Kastner, for the intervener the Canadian Civil Liberties Association.

Clayton Ruby and Gerald Chan, for the intervener the Criminal Lawyers’ Association (Ontario).

Nathan J. Whitling, for the intervener the Criminal Trial Lawyers’ Association.

The judgment of the Court was delivered by

LeBel J. —

I.       Introduction

[1]     This is a sentencing appeal from the Court of Appeal of Alberta that raises important issues in respect of constitutional remedies. The respondent, Mr. Lyle Marcellus Nasogaluak, had his sentences for the offences of impaired driving and flight from police reduced to conditional discharges as a remedy for the breaches of the Canadian Charter of Rights and Freedoms  that he endured at the time of his arrest and detention.  The main issue is whether his sentences were lawfully reduced as a remedy for the excessive force used by police.

[2]     The parties have focussed their submissions on the question of whether a court may grant a sentence reduction under s. 24(1)  of the Charter  to remedy a Charter  breach by state actors. Framing the issue in those terms presupposes that Charter  breaches can only be effectively remedied in the context of a separate and distinct Charter  application.  However, that is clearly not so.  As all statutes and the common law must be Charter  compliant, it should come as no surprise that an effective remedy for a proven wrong, which also happens to be a Charter  breach, may well be crafted within the confines of a statutory or common law regime.  The statutory sentencing regime under ss. 718  to 718.2  of the Criminal Code, R.S.C. 1985, c. C-46 , is one example.

[3]     As we shall see, the sentencing regime provides some scope for sentencing judges to consider not only the actions of the offender, but also those of state actors.  Where the state misconduct in question relates to the circumstances of the offence or the offender, the sentencing judge may properly take the relevant facts into account in crafting a fit sentence, without having to resort to s. 24(1)  of the Charter .  Indeed, state misconduct which does not  amount to a Charter  breach but which impacts the offender may also be a relevant factor in crafting a fit sentence.

[4]     Where the state misconduct does not relate to the circumstances of the offence or the offender, however, the accused must seek his or her remedy in another forum.  Any inquiry into such unrelated circumstances falls outside the scope of the statutory sentencing regime and has no place in the sentence hearing.  Likewise, a reduction of sentence could hardly constitute an “appropriate” remedy within the meaning of s. 24(1)  of the Charter  where the facts underlying the breach bear no connection to the circumstances of the offence or the offender.

[5]     As a general rule, therefore, it is neither necessary nor useful to invoke s. 24(1)  of the Charter  to effect an appropriate reduction of sentence to account for any harm flowing from unconstitutional acts of state agents consequent to the offence charged.  When acting within the boundaries of the statutory sentencing regime, of course, the sentencing judge must exercise his or her discretion within the parameters of the Criminal Code . The judge must impose sentences complying with statutory minimums and other provisions which prohibit certain forms of sentence in respect of the offence.

[6]     Save in exceptional cases, these constraints also apply where the remedial power of the court under the Charter  is invoked.  A sentence reduction outside statutory limits does not generally constitute an “appropriate” remedy within the meaning of s. 24(1) , unless the constitutionality of the statutory limit itself is challenged.  However, the remedial power of the court under s. 24(1)  is broad.  I therefore do not foreclose the possibility that, in some exceptional cases, a sentence reduction outside statutory limits may be the sole effective remedy for some particularly egregious form of misconduct by state agents in relation to the offence and the offender.  However, this is not such a case.

[7]     On the facts of this case, the Court of Appeal did not err in upholding the trial judge’s finding of excessive force by police in arresting Mr. Nasogaluak.  The police officers’ excessive use of force amounted to a violation of the respondent’s right to life, liberty and security of the person under s. 7  of the Charter .  The sentencing judge committed no error of law or principle in choosing to take this conduct into account as a factor tending toward a reduced sentence.  However, he erred in ordering a sentence that fell below the statutory minimum in the Code.  The Court of Appeal correctly substituted the order of a conditional discharge on the offence of impaired driving with the statutorily mandated minimum fine.

[8]     For these reasons, I would dismiss both the Crown’s appeal and the respondent’s cross-appeal.

II.      Background

[9]     The trial judge conducted an extensive review of the facts, both at the initial sentencing hearing on October 7, 2005 ([2005] A.J. No. 1740 (QL)) and when delivering sentence on November 24, 2005 ((2005), 90 Alta. L.R. (4th) 294).  The Court of Appeal disagreed with some of his findings, but did not go so far as to conclude that the trial judge had made any palpable and overriding errors.  The following factual overview reflects, to the greatest possible extent, those facts that are undisputed.

[10] In the early morning hours of May 12, 2004, the Leduc RCMP received a tip about an intoxicated driver.  This tip led to a high-speed pursuit of Mr. Nasogaluak, a then 24-year-old male of Inuit and Dene descent, by Constable Dlin.  After attempting to evade the police cruisers and dangerously reversing his car toward Cst. Dlin’s vehicle, Mr. Nasogaluak came to an abrupt stop.  By that point, Constables Olthof and Chornomydz had arrived on the scene.  Mr. Nasogaluak opened the car door and swung his feet out of the vehicle, which prompted Cst. Dlin to point his revolver and a flashlight toward Mr. Nasogaluak, and to order him to get out of the vehicle with his hands up.  Mr. Nasogaluak did not comply and instead placed his feet back inside the vehicle.  Cst. Chornomydz, at the ready, grabbed Mr. Nasogaluak — who was clutching onto the steering wheel and door frame at the time — and punched him in the head.  He testified that this was to prevent Mr. Nasogaluak from driving away and striking Cst. Olthof, who was standing in front of the vehicle. Mr. Nasogaluak let go of the steering wheel and reached out to Cst. Chornomydz, who then struck him in the head with his fist a second time, pulled him out of the car, and wrestled him onto the ground. 

[11] Cst. Chornomydz yelled at Mr. Nasogaluak to stop resisting and gave him a third hard punch in the head.  Mr. Nasogaluak was pinned face down on the pavement with Cst. Chornomydz straddling his back.  When Mr. Nasogaluak refused to offer up his hands to be handcuffed, Cst. Dlin punched Mr. Nasogaluak in the back, twice.  These blows were strong enough to break Mr. Nasogaluak’s ribs, which later punctured one of his lungs.  Cst. Olthof was kneeling on Mr. Nasogaluak’s thigh throughout this brief struggle.

[12] Eventually, Mr. Nasogaluak was taken to the police detachment.  Mr. Nasogaluak provided two breath samples that placed him well over the legal blood alcohol limit.  No record was made of the force used during the arrest, of Cst. Dlin’s drawing of a weapon, or of Mr. Nasogaluak’s injuries.  The officers provided their colleagues and superiors at the station with little to no information about the incident, and no attempts were made to ensure that Mr. Nasogaluak received medical attention.  Although Mr. Nasogaluak had no obvious signs of injury and did not expressly request medical assistance, he did tell Cst. Olthof on two occasions that he was hurt and was observed by Cst. Dlin crying and saying: “I can’t breathe.”  Corporal Deweerd, the supervisor on duty, testified that he noticed Mr. Nasogaluak leaning over and moaning as if in pain.  However, Mr. Nasogaluak had replied in the negative to the question of whether he was injured.  Even if the police cruisers and the RCMP detachment were outfitted with video cameras, no recordings were made or produced of any transactions involving Mr. Nasogaluak. Indeed, the trial judge seems to have had serious suspicious and concerns about the absence of videotapes and may have drawn from it some negative inferences about the nature of the police conduct in this case.

[13] Mr. Nasogaluak was released the following morning and checked himself into the hospital, on his parents’ insistence.  He was found to have suffered broken ribs and a collapsed lung that required emergency surgery.  As a result of these injuries, he lost his job as a roughneck on the oil rigs but obtained similar employment a few months later.

III.    Judicial History

A.     Alberta Court of Queen’s Bench, Sirrs J.

[14] The respondent entered a guilty plea to the charges of impaired driving under s. 253 (a) of the Criminal Code  and flight from police under s. 249.1(1) of the Code.  At the sentencing hearing, the respondent requested a stay of proceedings on the grounds that the excessive force used by police upon his arrest, their failure to properly report his injuries, and their failure to obtain medical assistance for those injuries breached ss. 7 , 11 (d) and 12  of the Charter .  In the alternative, he sought a reduced sentence to remedy the Charter  breaches. 

[15] The trial judge held that the evidence was insufficient to make out a s. 12  breach, but found that the police actions constituted a violation of ss. 7  and 11 (d) of the Charter .  He held that the officers’ inadequate reporting concerning the use of force constituted a threat to the respondent’s life, liberty and security of the person under s. 7  and, somewhat surprisingly, to the presumption of innocence under s. 11 (d).  According to the trial judge, the failure by police to take Mr. Nasogaluak to the hospital was another factor to consider in deciding whether Mr. Nasogaluak’s s. 7  rights were breached, but he did not state definitively whether his finding of a s. 7  breach was influenced by the lack of medical attention.

[16] Regarding the allegation of excessive force by police, Sirrs J. concluded that Cst. Chornomydz’s first punch was necessary to remove Mr. Nasogaluak from the vehicle and to prevent him from driving away or causing harm to Cst. Olthof.  He  found that the second punch was lawful, given Mr. Nasogaluak’s non-compliance with the police orders and the need to subdue him and force him to the ground.  However, in his opinion, Cst. Chornomydz’s third punch to the head and Cst. Dlin’s two punches to Mr. Nasogaluak’s back were unwarranted and therefore excessive:

. . . after taking two hard punches to the head, it is not surprising to me that Mr. Nasogaluak was both stunned and reluctant to offer up his hands to be handcuffed.  He was face down on the ground most of the time.  It was obvious that he neither had weapons nor passengers.  The safety of the police was no longer in issue. Mr. Nasogaluak was no longer a flight risk. . . . I am satisfied that an adrenaline rush overcame cool heads resulting in an additional punch to Mr. Nasogaluak’s head and the two punches that broke his ribs.

(Judgment of October 7, 2005, at para. 27)

Sirrs J. also held that Cst. Dlin’s punches in particular were of excessive force, as they were strong enough to break Mr. Nasogaluak’s ribs and puncture his lung.

[17] As a remedy for the Charter  breaches, Sirrs J. granted Mr. Nasogaluak a reduced sentence.  He noted that offences such as fleeing from police and impaired driving would typically be punished by incarceration of 6 to 18 months, in accordance with the paramount goals of individual deterrence and denunciation.  However, Sirrs J. was satisfied that those principles were met by Mr. Nasogaluak’s “life-altering experience” with the Leduc RCMP (judgment of November 24, 2005, at para. 24).  Furthermore, he considered the breaches to be “so egregious as to justify taking Mr. Nasogaluak from the realm of cases that require incarceration” (para. 25).  Since sentence reduction was an available and appropriate remedy in the circumstances of the case, he refused Mr. Nasogaluak’s application for a stay of proceedings, holding that this was not one of the “clearest of cases” in which a stay was necessary to remedy the prejudice to trial fairness arising from the breach (R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297; R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 68).

[18] Acting under s. 24(1)  of the Charter , Sirrs J. granted Mr. Nasogaluak a 12‑month conditional discharge on both counts, served concurrently, with a one‑year driving prohibition.  He held that this sentence best reflected the seriousness of the Charter  breaches and Mr. Nasogaluak’s strong employment record, young age, and lack of criminal record.

B.      Alberta Court of Appeal, 2007 ABCA 339, 84 Alta. L.R. (4th) 15

(1)   Majority: McFadyen J.A., Martin J.A. Concurring

[19] The majority of the Court of Appeal rejected the Crown’s argument that the trial judge had erred in finding that the RCMP officers’ use of force was excessive.  It held that, although the trial judge had made several erroneous findings of fact regarding the police officers’ use of force, there was sufficient evidence on the record to support his conclusion:

Although the sentencing judge did not specifically refer to the provisions of the Criminal Code  or precedent governing the use of force by police officers in the process of making an arrest and preventing the commission of further offences, it appears that he considered all the circumstances.  While this is not a finding we would have made, nonetheless we cannot say that the sentencing judge committed a palpable and overriding error in concluding that Dlin used excessive force.  There is some support for the sentencing judge’s finding. [para. 27]

According to the majority, the trial judge had considered all relevant factors and was alive to the fact that the events happened quickly and that Mr. Nasogaluak was uncooperative and intoxicated.  The majority did not interfere with the trial judge’s finding that the officers’ excessive use of force and subsequent failure to report Mr. Nasogaluak’s injuries and obtain medical care amounted to a s. 7  breach.

[20] The majority also dismissed the Crown’s submission that the trial judge had erred in granting Mr. Nasogaluak a reduced sentence as a Charter  remedy under s. 24(1) .  Writing for the majority, McFadyen J.A. acknowledged the court’s broad discretion under s. 24(1)  to order any remedy that is “appropriate and just in the circumstances”.  After reviewing the divided jurisprudence in this area, she concluded that the Ontario Court of Appeal had correctly decided the matter in R. v. Glykis (1995), 84 O.A.C. 140, when it held that sentence reduction was available to remedy a Charter  breach in two circumstances: if the breach somehow mitigated the seriousness of the offence, or if it imposed additional punishment or hardship on the accused.  Since Mr. Nasogaluak had clearly suffered hardship in the form of broken ribs and a punctured lung, the sentence could be reduced pursuant to s. 24(1)  of the Charter .  McFadyen J.A. could not point to any palpable or overriding error committed by the trial judge in concluding that sentence reduction was warranted in the circumstances of the case.

[21] The majority was careful, however, not to overstate the breadth of the trial judge’s remedial authority under s. 24(1) :

While we find that a reduction in sentence is an available remedy under s. 24(1)  in some circumstances, it is a remedy to be used sparingly and as a last resort in extraordinary cases.  This interpretation respects the provisions in the Criminal Code  which set out the objectives and principles of sentencing. [para. 38]

Likewise, the majority held that a sentence falling below a statutorily mandated minimum sentence could not be ordered as it would constitute an unlawful interference with the role of Parliament, citing the court’s recent decision of R. v. Ferguson, 2006 ABCA 261, 397 A.R. 1 (this Court released its reasons in R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, after the Court of Appeal heard the present appeal). 

[22] The majority therefore set aside the trial judge’s order for a conditional discharge in respect of the impaired driving offence, given the minimum fine of $600 for a first offence mandated by s. 255(1) (a)(i) of the Criminal Code .  Instead, it entered a conviction and ordered Mr. Nasogaluak to pay the minimum fine.  Since the offence of evading a police officer does not prescribe a minimum punishment, the majority did not interfere with the conditional discharge ordered on that offence.

[23] The majority concluded that, although the sentence imposed for the offence of evading the police was unfit having regard to the seriousness of the offence, the trial judge had committed no error in law or principle in reducing the sentence below the punishment that would ordinarily be imposed for that type of offence.  It dismissed the appeal against the discharge for evading the police, and allowed the appeal with respect to the conditional discharge on the impaired driving offence.

(2)   Dissent: Côté J.A.

[24] In dissenting reasons, Côté J.A. accepted the majority’s conclusions regarding the excessive force used by police, and its articulation of the principles of law concerning sentence reduction under s. 24(1) .  In particular, he agreed that while sentence reduction may be available in some circumstances to remedy a Charter  breach, a sentence cannot be reduced below a statutory minimum.  Accordingly, he would have substituted the minimum fine for the offence of impaired driving, as the majority did.

[25] However, he took a more cautious approach to the Charter  remedy of sentence reduction.  He held that Sirrs J. had erred in not considering or applying the test for sentence reduction from Glykis and in failing to provide any adequate explanation for the sentence he had ordered.  In his opinion, such an explanation was necessary in light of the “patchy evidence and brief and contradictory fact findings” (para. 62), which did not point conclusively to sentence reduction as the appropriate remedy. Indeed, he held that while there was no statutory minimum penalty for the offence of evading a police officer, the jurisprudential and sentencing guidelines for that offence are akin to a minimum penalty below which Charter  relief should be “slow to drop” (para. 59).  Given the trial judge’s preference for the police officers’ testimony over that of Mr. Nasogaluak, Côté J.A. had difficulty accepting that the Charter  breaches were so egregious that they warranted the remedy of a conditional discharge. Côté J.A. refused to uphold the trial judge’s order as his reasons were simply too inadequate and incomplete to withstand appellate scrutiny. As a result, Côté J.A. would have re-sentenced Mr. Nasogaluak for the offence of evading the police, allowing counsel to submit further written arguments concerning the proper sentence including any reduction to remedy the Charter  breach.

IV.    Issues on Appeal and Cross-Appeal

[26] This appeal raises a number of questions that can be addressed by reference to the following two issues: 

(1)               Did the Court of Appeal err in upholding the trial judge’s conclusion that the police had used excessive force to arrest Mr. Nasogaluak, and that the circumstances of Mr. Nasogaluak’s arrest and detention amounted to a violation of s. 7  of the Charter ?

(2)               Was the Court of Appeal wrong in deciding that sentence reduction can be a just and appropriate remedy for an established Charter  breach under s. 24(1)  of the Charter ? May breaches of fundamental rights be addressed through the sentencing process under the Criminal Code ?  If the Court of Appeal did not err, then what, if any, limitations may circumscribe a judge’s discretion to reduce a sentence as a Charter  remedy?

[27] The Crown argues that, first, the Court of Appeal applied an incorrect standard of review to the trial judge’s findings regarding excessive force.  It submits that the trial judge made a number of material errors of law that should have been reviewed on the correctness standard and overturned on appeal.  In particular, the Crown points to Sirrs J.’s failure to assess the degree of force used by police against the legal standard articulated in ss. 25  and 27  of the Criminal Code  and in the relevant case law.  The Crown argues that the Court of Appeal, having found that the trial judge made several contradictory findings of fact and that he did not refer to the relevant legal principles, erred in upholding Sirrs J.’s conclusions on excessive force. 

[28] The Crown also challenges the Court of Appeal’s conclusion regarding the use of sentence reduction as a Charter  remedy.  While conceding that sentence reduction might be appropriate when the Charter  breach results in an additional form of punishment for the offender, the Crown submits that s. 24(1)  should not be used to circumvent the statutory and common law principles of sentencing.  It argues that a sentence reduced pursuant to s. 24(1)  must still fall within the range of appropriate sentences for that offence.  According to the Crown, the discretion to reduce a sentence below this range would undermine the principles of proportionality and parity. It would also impermissibly shift the focus of the sentencing process away from the culpability of the offender and the gravity of the offence to the conduct of state officials.

[29] Finally, the Crown contests the legality and the fitness of the particular sentence that was ordered.  In respect of the impaired driving conviction, it submits that the conditional discharge is an illegal sentence because such a sentence is not available at law, as the Criminal Code  provides for a minimum sentence. In the case of the flight from police conviction, it argues that, although legal, the sentence is completely inadequate and, therefore, unfit. Nevertheless, given the particular circumstances of the case, the Crown indicated that it would be satisfied, for the sake of principle, with a token one-day sentence on this offence. It submits that a conditional discharge can be ordered only in exceptional circumstances, none of which was present in this case.  The Crown points to the seriousness of the offences, the deliberate nature of Mr. Nasogaluak’s flight from police, and the public interest in holding the respondent responsible for his actions to suggest that the conditional discharge was “wholly inappropriate” and “demonstrably unfit” (Appellant’s Factum, at para. 116).  Even if sentence reduction had been an appropriate remedy in these circumstances, the Crown argues that the Court of Appeal should have intervened to increase the quantum of the sentence to, at the very least, a period of incarceration.  The Crown asks that the matter be sent back to the sentencing court for reconsideration.

[30] The respondent Mr. Nasogaluak submits that the Court of Appeal correctly reviewed and applied the legal principles on excessive force and asks this Court to uphold its finding of a s. 7  Charter  breach.  He also asks this Court to affirm the availability of sentence reduction as a s. 24(1)  Charter  remedy.  He argues that the sentencing principles in the Criminal Code  should not impede an individual’s exercising a right to a meaningful Charter  remedy. He asks this Court to adopt a broad interpretation of s. 24(1)  that would allow for the reduction of sentences below the regular range of appropriate sentences in order to remedy a Charter  breach.

[31] In a cross-appeal, Mr. Nasogaluak submits that the Court of Appeal erred in substituting a $600 fine for the conditional discharge on the offence of impaired driving. In his opinion, the court’s broad discretion under s. 24(1)  permits it to reduce a sentence below the statutory minimum when necessary to provide effective Charter  relief.  He analogizes his case to that of R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, in which this Court held that a mandatory minimum sentence could be reduced to credit the offender’s time spent in pre-trial custody.  In his opinion, the only constraint on the court’s power to order a reduced sentence is the constitutional division of powers between the federal Parliament and the provincial legislatures.  Accordingly, Mr. Nasogaluak asks this Court to restore the conditional discharge for the offence of impaired driving.

V.     Analysis

A.     Excessive Use of Force by Police

(1)   The Legal Standard

[32] The Crown emphasized the issue of excessive force in its submissions to this Court, arguing strenuously that the police officers had not abused their authority or inflicted unnecessary injuries on Mr. Nasogaluak.  But police officers do not have an unlimited power to inflict harm on a person in the course of their duties.  While, at times, the police may have to resort to force in order to complete an arrest or prevent an offender from escaping police custody, the allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness.  Courts must guard against the illegitimate use of power by the police against members of our society, given its grave consequences.

[33] The legal constraints on a police officer’s use of force are deeply rooted in our common law tradition and are enshrined in the Criminal Code . This case engages s. 25 of the Code, the relevant portions of which are reproduced below:

25. (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

. . .

(b)       as a peace officer or public officer,

. . .

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

. . .

(3)       Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self‑preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm.

(4)       A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if

(a)       the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested;

(b)       the offence for which the person is to be arrested is one for which that person may be arrested without warrant;

(c)       the person to be arrested takes flight to avoid arrest;

(d)       the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm; and

(e)       the flight cannot be prevented by reasonable means in a less violent manner.

[34] Section 25(1) essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances.  That is not the end of the matter.  Section 25(3) also prohibits a police officer from using a greater degree of force, i.e. that which is intended or likely to cause death or grievous bodily harm, unless he or she believes that it is necessary to protect him- or herself, or another person under his or her protection, from death or grievous bodily harm.  The officer’s belief must be objectively reasonable.  This means that the use of force under s. 25(3) is to be judged on a subjective-objective basis (Chartier v. Greaves, [2001] O.J. No. 634 (QL) (S.C.J.), at para. 59).  If force of that degree is used to prevent a suspect from fleeing to avoid a lawful arrest, then it is justified under s. 25(4), subject to the limitations described above and to the requirement that the flight could not reasonably have been prevented in a less violent manner.

[35] Police actions should not be judged against a standard of perfection.  It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies.  Their actions should be judged in light of these exigent circumstances.  As Anderson J.A. explained in R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

(2)   Application to This Case

[36] I do not believe that the Court of Appeal erred in upholding the trial judge’s finding that the police used excessive force in arresting Mr. Nasogaluak.  The court correctly stated the legal principles involved in deciding whether the force was excessive and held that the trial judge had adhered to those principles, regardless of whether he had cited the relevant case law and provisions of the Criminal Code .  The court reached this conclusion despite rejecting several of the trial judge’s findings of fact: specifically, that Mr. Nasogaluak was subdued by the time Cst. Chornomydz threw his third punch and that Cst. Dlin knew when he punched Mr. Nasogaluak in the ribs that the suspect was unarmed (paras. 25-26).  However, the court was persuaded that there was sufficient evidence to support the trial judge’s finding of excessive force (para. 27).  It noted that Sirrs J. had properly considered the fact that Mr. Nasogaluak was pinned beneath Cst. Chornomydz at the time of Cst. Dlin’s punches, and had taken into account Cst. Dlin’s own admission at the hearing that he did not think his colleague’s third punch was necessary.  In light of these circumstances, the court held that it was not unreasonable for the trial judge to view the amount of force used as excessive. 

[37] One should not forget the force of these blows: the trial judge found that Cst. Chornomydz was a “powerful man who would pack a mean punch” (judgment of October 7, 2005, at para. 24).  Cst. Dlin’s punches were forceful enough to break two of Mr. Nasogaluak’s ribs, and ultimately led to a punctured lung.  Even taking into account the fact that these events occurred over a very brief period of time and that the police had to make hasty decisions to respond to the situation at hand, in my opinion, the Court of Appeal did not err when it found that the police had used more force than was necessary in the circumstances.

[38] The next question is whether the Court of Appeal correctly upheld the trial judge’s finding that the officers’ conduct at the time amounted to a violation of s. 7  of the Charter .  Section 7  provides:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Although the Crown contested the finding of excessive force, neither party made submissions to this Court concerning the s. 7  breach, and I do not propose to engage in a lengthy s. 7  analysis.  I leave for another day the question of whether police officers may have an affirmative duty to obtain medical assistance for persons under their care. It is enough to say, for the purposes of the present appeal, that I accept the Court of Appeal’s determination that the trial judge had made no palpable and overriding error in his findings that the police had used excessive force at the time of Mr. Nasogaluak’s arrest.  Further, I believe that a 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  (R. v. Morgentaler, [1988] 1 S.C.R. 30; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519). The excessive use of force by the police officers, compounded by the failure of those same officers to alert their superiors to the extent of the injuries they inflicted on Mr. Nasogaluak and their failure to ensure that he received medical attention, posed a very real threat to Mr. Nasogaluak’s security of the person that was not in accordance with any principle of fundamental justice.  On that evidence and record, we may assume that there was a breach of s. 7  and that there was no limit prescribed by law justifying such a breach. The conclusion that s. 25  was breached, in that excessive, unnecessary force was used by the police officers at the time of the arrest, confirms it.

B.      Sentence Reduction to Remedy a Charter  Breach

(1)   The Principles of Sentencing

[39] The central issue in this appeal concerns the possibility of reducing an offender’s sentence to take account of a violation of his or her constitutional rights. Our Court must determine whether a s. 24(1)  remedy is necessary to address the consequences of a Charter  breach or whether this can be accomplished through the sentencing process. In addressing this issue, it is necessary first to review the principles that guide the sentencing process under Canadian law.  The objectives and principles of sentencing were recently codified in ss. 718  to 718.2  of the Criminal Code  to bring greater consistency and clarity to sentencing decisions.  Judges are now directed in s. 718  to consider the fundamental purpose of sentencing as that of contributing, along with crime prevention measures, to “respect for the law and the maintenance of a just, peaceful and safe society”. This purpose is met by the imposition of “just sanctions” that reflect the usual array of sentencing objectives, as set out in the same provision: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation, and a recent addition: the promotion of a sense of responsibility in the offender and acknowledgement of the harm caused to the victim and to the community. 

[40] The objectives of sentencing are given sharper focus in s. 718.1, which mandates that a sentence be “proportionate to the gravity of the offence and the degree of responsibility of the offender”.  Thus, whatever weight a judge may wish to accord to the objectives listed above, the resulting sentence must respect the fundamental principle of proportionality.  Section 718.2  provides a non-exhaustive list of secondary sentencing principles, including the consideration of aggravating and mitigating circumstances, the principles of parity and totality, and the instruction to consider “all available sanctions other than imprisonment that are reasonable in the circumstances”, with particular attention paid to the circumstances of aboriginal offenders.  

[41] It is clear from these provisions that the principle of proportionality is central to the sentencing process (R. v. Solowan, 2008 SCC 62, [2008] 3 S.C.R. 309, at para. 12).  This emphasis was not borne of the 1996 amendments to the Code but, rather, reflects its long history as a guiding principle in sentencing (e.g. R. v. Wilmott (1966), 58 D.L.R. (2d) 33 (Ont. C.A.)).  It has a constitutional dimension, in that s. 12  of the Charter  forbids the imposition of a grossly disproportionate sentence that would outrage society’s standards of decency.   But what does proportionality mean in the context of sentencing? 

[42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence.  In this sense, the principle serves a limiting or restraining function.   However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the “just deserts” philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused (R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 81; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at pp. 533-34, per Wilson J., concurring).  Understood in this latter sense, sentencing is a form of judicial and social censure (J. V. Roberts and D. P. Cole, “Introduction to Sentencing and Parole”, in Roberts and Cole, eds., Making Sense of Sentencing (1999), 3, at p. 10). Whatever the rationale for proportionality, however, the degree of censure required to express society’s condemnation of the offence is always limited by the principle that an offender’s sentence must be equivalent to his or her moral culpability, and not greater than it.  The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.

[43] The language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion to craft a sentence that is tailored to the nature of the offence and the circumstances of the offender.  The determination of a “fit” sentence is, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case (R. v. Lyons, [1987] 2 S.C.R. 309; M. (C.A.); R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.)).  No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case.  The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences.  The judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law. 

[44] The wide discretion granted to sentencing judges has limits.  It is fettered in part by the case law that has set down, in some circumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions in accordance with the principle of parity enshrined in the Code.  But it must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules.  A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit.  Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred.

[45] The discretion of a sentencing judge is also constrained by statute, not only through the general sentencing principles and objectives enshrined in ss. 718  to 718.2  articulated above but also through the restricted availability of certain sanctions in the Code.  For instance, s. 732  prohibits a court from ordering that a sentence of imprisonment exceeding 90 days be served intermittently.  Similar restrictions exist for sanctions such as discharges (s. 730 ), fines (s. 734 ), conditional sentences (s. 742.1 ) and probationary terms (s. 731 ).  Parliament has also seen fit to reduce the scope of available sanctions for certain offences through the enactment of mandatory minimum sentences.  A relatively new phenomenon in Canadian law, the minimum sentence is a forceful expression of governmental policy in the area of criminal law.  Certain minimum sentences have been successfully challenged under s. 12  of the Charter  on the basis that they constituted grossly disproportionate punishment in the circumstances of the case (R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Bill (1998), 13 C.R. (5th) 125 (B.C.S.C.)), while others have been upheld (R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90).  Absent a declaration of unconstitutionality, minimum sentences must be ordered where so provided in the Code.  A judge’s discretion does not extend so far as to override this clear statement of legislative intent.

[46] Appellate courts grant sentencing judges considerable deference when reviewing the fitness of a sentence.  In M. (C.A.), Lamer C.J. cautioned that a sentence could only be interfered with if it was “demonstrably unfit” or if it reflected an error in principle, the failure to consider a relevant factor, or the over-emphasis of a relevant factor (para. 90; see also R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 14-15; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 123-26; R. v. McDonnell, [1997] 1 S.C.R. 948, at paras. 14-17; R. v. Shropshire, [1995] 4 S.C.R. 227).  As Laskin J.A. explained in R. v. McKnight (1999), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 35, however, this does not mean that appellate courts can interfere with a sentence simply because they would have weighed the relevant factors differently:

To suggest that a trial judge commits an error in principle because in an appellate court’s opinion the trial judge gave too much weight to one relevant factor or not enough weight to another is to abandon deference altogether.  The weighing of relevant factors, the balancing process is what the exercise of discretion is all about.  To maintain deference to the trial judge’s exercise of discretion, the weighing or balancing of relevant factors must be assessed against the reasonableness standard of review.  Only if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably should an appellate court interfere with the sentence on the ground the trial judge erred in principle.

Given the breadth of the sentencing judge’s discretion, the question remains: What role should the facts alleged to constitute a Charter  breach play in the determination of a fit sentence?  It is to this issue that I now turn.

(2)   The Role of Charter  Breaches in the Regular Sentencing Process

[47] The sentencing principles described above must be understood and applied  within the overarching framework of our Constitution.  Thus it may, at times, be appropriate for a court to address a Charter  breach when passing sentence.  This 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 Code to craft a fit sentence that reflects all the factual minutiae of the case.  If the facts alleged to constitute a Charter  breach are related to one or more of the relevant principles of sentencing, then the sentencing judge can properly take those facts into account in arriving at a fit sentence.  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.   

[48] Indeed, the sentencing regime under Canadian law must be implemented within, and not apart from, the framework of the Charter .  Sentencing decisions are always subject to constitutional scrutiny.  A sentence cannot be “fit” if it does not respect the fundamental values enshrined in the Charter .  Thus, incidents alleged to constitute a Charter  violation can be considered in sentencing, provided that they bear the necessary connection to the sentencing exercise.  As mitigating factors, the circumstances of the breach would have to align with the circumstances of the offence or the offender, as required by s. 718.2 of the Code.  Naturally, the more egregious the breach, the more attention the court will likely pay to it in determining a fit sentence.

[49] This is consistent with the communicative function of sentencing. A proportionate sentence is one that expresses, to some extent, society’s legitimate shared values and concerns.  As Lamer C.J. stated in M. (C.A.):

Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code . [para. 81]

A sentence that takes account of a Charter  violation is therefore able to communicate respect for the shared set of values expressed in the Charter .  In the words of Professor Allan Manson:

The communicative function of sentencing is all about conveying messages.  The messages are directed to the community.  They are about the values which ought to be important to the community.

(“Charter Violations in Mitigation of Sentence” (1995), 41 C.R. (4th) 318, at p. 323)

Indeed, s. 718 of the Criminal Code  describes the fundamental purpose of sentencing as that of contributing to “respect for the law and the maintenance of a just, peaceful and safe society”.  This function must be understood as providing scope for sentencing judges to consider not only the actions of the offender, but also those of state actors.  Provided that the impugned conduct relates to the individual offender and the circumstances of his or her offence, the sentencing process includes consideration of society’s collective interest in ensuring that law enforcement agents respect the rule of law and the shared values of our society.

[50] The conclusion that the circumstances of alleged Charter  breaches can be considered during sentencing, when they are relevant to the offender and to the offence, is consistent with much of the sentencing jurisprudence.  In several cases, courts have reduced a sentence to reflect the prejudice caused to the accused by the incident giving rise to a Charter  violation, without invoking s. 24(1) .  For instance, in R. v. Munoz, 2006 ABQB 901, 69 Alta. L.R. (4th) 231, an offender’s overall sentence was reduced to take account of the breach of his s. 7  and s. 12  rights by police guards.  While awaiting trial for serious offences including robbery and aggravated assault, the accused was subject to acts of physical violence by the guards and was forced to wear a degrading prisoner uniform called a “baby doll”.  Writing for the court, Wilkins J. described the accused’s treatment at the hands of the police as “grossly disproportionate to the punishment that was appropriate” (para. 77).  He held that a fit sentence, notwithstanding the Charter  breaches, would have been seven years’ imprisonment, on the high end of the scale for those particular offences.  Taking the breaches into account, and after ordering an enhanced credit of 33 months for time served in the remand facility, he ordered a sentence of two years less a day in jail.  The court did not cite s. 24(1)  of the Charter  as authority for the sentence reduction.

[51] Perhaps more instructive to the current appeal is R. v. Pigeon (1992), 73 C.C.C. (3d) 337 (B.C.C.A.), which illustrates the court’s authority to address police violence within the context of ordinary sentencing principles.  The offender was a Chilcotin man who had fled from police after committing a break and enter.  After an officer fired a shot into the air, Mr. Pigeon returned from whence he had fled — unarmed and unaggressive — with the intent to surrender.  The officer grabbed Mr. Pigeon by the hair and threw him onto the pavement.  Rather than handcuff the accused at this point, the officer lifted him back up and dragged him by the hair to where the other officer was stationed.  He threw him onto the ground again and, with the other officer’s foot firmly placed on the accused’s neck, handcuffed him.  Mr. Pigeon did not resist arrest or attempt to escape at any time.

[52] The accused was convicted and sentenced to nine months’ imprisonment followed by 18 months’ probation.  The trial judge acknowledged the injuries suffered by Mr. Pigeon during his arrest, but concluded that the officer’s use of force was irrelevant to the offender’s sentence:

Although you deserve some sympathy on account of that ill treatment, it is not a factor that I am prepared to take into consideration.  You have a civil remedy.

After releasing those reasons, the trial judge filed a formal report to the Court of Appeal recommending a reduced sentence of six months’ imprisonment.  He wrote:

I refused to take into account the assaults that the accused had suffered at the hands of the police, and told him that he had a civil remedy for that.

On reflection I am of the view that effect ought to have been given to the assaults. Had I considered it appropriate to do so I would have further reduced the term of imprisonment by three months to six months.

. . .

I am respectfully of the view that it is not in the public interest that police constables should be perceived as “getting away” [with] ill treating aboriginal people, and I am no longer of the view that a civil remedy is the proper form of redress.

On appeal, Carrothers J.A. accepted the trial judge’s findings that the degree of force used by police was unwarranted and excessive.  He noted that, although the court is “not sitting in judgment of the police”, it is within the ambit of the appellate court’s review of the fitness of the sentence to consider all that is known about the offender and the offence, along with the “realities and complexion of the community . . . which are relevant to and bear upon the public perception of justice” (p. 343).  In light of these considerations, Carrothers J.A. ordered a reduced sentence of six months’ imprisonment, falling to the low end of the scale of sentences for similar offences.

[53] It is important to note that a sentence can be reduced in light of state misconduct even when the incidents complained of do not rise to the level of a Charter  breach.  In Pigeon, the court did not need to determine whether the accused’s s. 7  rights had been violated, as there was sufficient scope within the regular sentencing process to address the impropriety of the police officers’ actions.  Likewise, the Ontario Court of Appeal held in R. v. Bosley (1992), 18 C.R. (4th) 347, that the trial judge had properly considered excessive but not unconstitutional delay as a mitigating factor in his determination of a fit sentence (see also R. v. Leaver (1996), 3 C.R. (5th) 138 (Ont. C.A.)).  And in R. v. Panousis, 2002 ABQB 1109, 329 A.R. 47, the Alberta Court of Queen’s Bench treated the delay in the proceedings as a relevant mitigating factor that led to a reduced sentence for the offence of trafficking in cocaine.  Although the delay did not amount to a s. 11 (b) violation, the court held that it had caused prejudice to the accused that was relevant and probative to the sentencing process.  The majority of the Alberta Court of Appeal, in brief oral reasons (2004 ABCA 211 (CanLII)), reversed the trial judge’s decision and imposed a sentence of incarceration of two years less a day and a heavy fine.  The majority did not state whether it disagreed with the trial judge’s finding that delay was a relevant mitigating circumstance, but it is notable that its final sentence went below the trial judge’s appreciation of the usual sentences for serious drug offences.

[54] To be certain, the concept of recognizing harm or prejudice caused to the offender as a mitigating circumstance upon sentencing did not originate with the Charter .  In the pre-Charter  case of R. v. Kirzner (1976), 14 O.R. (2d) 665, the Ontario Court of Appeal reduced a sentence for drug offences to reflect the police force’s role in exposing the offender to the opportunity to commit the offences for which he was convicted.  The RCMP had used the offender, who was addicted to heroin, as an informer to infiltrate and gain information about the drug trade in Montreal.  The court found that, although the defence of entrapment was not available to the accused, the police were sufficiently implicated in the offender’s actions to warrant a reduction of his sentence.  Likewise, the Ontario Court of Appeal reduced a sentence in the pre-Charter  context to mitigate the effects of an unlawful search of the accused’s premises in R. v. Steinberg, [1967] 1 O.R. 733.  Excessive delay attributable to the prosecution or police has also been considered a mitigating factor in a number of pre-Charter  cases (R. v. Cooper (No. 2) (1977), 35 C.C.C. (2d) 35 (Ont. C.A.); R. v. Simon (1975), 25 C.C.C. (2d) 159 (Ont. C.A.)).  Likewise, delay arising out of strategically delayed charges in respect of contemporaneous offences has led to reduction of the sentences (R. v. Parisien (1971), 3 C.C.C. (2d) 433 (B.C.C.A.); R. v. Burke, [1968] 2 C.C.C. 124 (Ont. C.A.); R. v. Fairn (1973), 12 C.C.C. (2d) 423 (N.S. Co. Ct.)).

[55] Thus, a sentencing judge may take into account police violence or other state misconduct while crafting a fit and proportionate sentence, without requiring the offender to prove that the incidents complained of amount to a Charter  breach.  Provided the interests at stake can properly be considered by the court while acting within the sentencing regime in the Criminal Code , there is simply no need to turn to the Charter  for a remedy.  However, if a Charter  breach has already been alleged and established, a trial judge should not be prevented from reducing the sentence accordingly, so long as the incidents giving rise to the breach are relevant to the usual sentencing regime.  Of course, as we shall see, as a general rule, a court cannot reduce a sentence below a mandatory minimum or order a reduced sentence that is not provided for by statute.  That said, circumstances of a Charter  breach or other instances of state misconduct, in exceptional circumstances, do allow a court to derogate from the usual rules to which its decisions are subject.

(3)   Section 24(1)  of the Charter  and the Sentencing Process

[56] Much of the discussion in this appeal turned on the reduction of sentences for acts that might also be Charter  breaches.  But this intense debate reflects a misapprehension of the flexibility and contextual nature of the sentencing process in Canada. It is true that a substantial strand of jurisprudence, emanating from several provinces, has granted reductions of sentences under s. 24(1)  as Charter  remedies, in order to impose a just and appropriate punishment in specific cases. This jurisprudence may not have been completely mindful that events which justify findings of Charter  breaches may also be circumstances which can legitimately form part of the analytical process leading to a fit sentence under the provisions of the Criminal Code .  On their own, without the need to fall back upon the Charter , these provisions can generally provide remedial protection to individuals whose rights have been infringed. With this in mind, I will now briefly review these cases.

[57] In the early days of the Charter , La Forest J. recognized sentence reduction as falling along the range of potential s. 24(1)  remedies in Mills v. The Queen, [1986] 1 S.C.R. 863, at p. 974. Since then, the disagreements in the jurisprudence about whether sentence reduction is prima facie available as a Charter  remedy have centred more on the types of limits that should constrain a court’s resort to this remedy than on the availability of such a remedy.

[58] In a number of cases, courts have adopted a contextual and flexible approach to sentence reduction under s. 24(1) , and have not imposed any strict limits on its use.  In R. v. Charles (1987), 61 Sask. R. 166, the Saskatchewan Court of Appeal dismissed an appeal against the trial judge’s order of a reduced sentence for a man convicted of assaulting his wife.  The trial judge found that the accused’s s. 9  rights were violated when he was arbitrarily held in custody for 12 additional hours.  As a s. 24(1)  remedy, the judge ordered a suspended sentence with a one-year probationary period.  The Court of Appeal concluded that a substantial reduction in the usual penalty that would be imposed for such an offence was appropriate in the circumstances of the case.  Subsequent cases from Saskatchewan have reduced sentences in order to remedy breaches of s. 9  (R. v. Bear (1988), 72 Sask. R. 99 (Prov. Ct.); R. v. S.L.L., 2002 SKQB 425, 229 Sask. R. 96) and s. 12  (R. v. Foulds, [1998] S.J. No. 560 (QL) (Prov. Ct.)) of the Charter . 

[59] The New Brunswick Court of Appeal has also employed the remedy of sentence reduction fairly liberally in a number of Charter  cases.  Most notably, the court in R. v. Dennison (1990), 109 N.B.R. (2d) 388, reduced a sentence for attempted murder from 12 to 9 years’ imprisonment following the trial judge’s failure to allow the accused to speak to his sentence. Similarly, it halved a six-month jail sentence as a remedy for the accused’s arbitrary detention (R. v. MacPherson (1995), 166 N.B.R. (2d) 81), and reduced a sentence from 12 months’ imprisonment to time served, to remedy the s. 7  breach arising from counsel’s dual representation of the Crown and the accused (R. v. Zwicker (1995), 169 N.B.R. (2d) 350).

[60] Courts in other jurisdictions have followed the trend of ordering a reduced sentence as an appropriate and just remedy for breaches of s. 7  (Carlini Bros. Body Shop Ltd. v. R. (1992), 10 O.R. (3d) 651 (Gen. Div.)); s. 8  (R. v. Grenke, 2004 ONCJ 121, 7 M.V.R. (5th) 89); s. 9  (Québec (Procureur général) v. Chabot, [1992] R.J.Q. 2102 (C.A.); R. v. Mater (1988), 47 C.R.R. 351 (Ont. Dist. Ct.)); s. 10 (b) (R. v. Pasemko (1982), 17 M.V.R. 247 (Alta. Prov. Ct.); R. v. Grimes (1987), 70 Nfld. & P.E.I.R. 11 (Nfld. S.C.T.D.); R. v. MacLean, [1988] O.J. No. 2515 (QL) (Prov. Ct.)); and even s. 15  (R. v. Pelletier (1986), 42 M.V.R. 67 (Ont. Prov. Ct.)) of the Charter .

[61] Other courts have approached the use of sentence reduction as a Charter  remedy with greater hesitation.  In Glykis, the Ontario Court of Appeal held that the trial judge should not have compensated for improper police action by reducing the offenders’ sentences.  The two accused were apprehended at Pearson airport when they admitted to smuggling drugs into the country under their clothing.  They were informed of their right to counsel but were denied the right to consult with a lawyer until after they had been searched.  As a result, their consultation was delayed by approximately two hours.  Writing for the court, Dubin C.J.O. upheld the trial judge’s finding of a s. 10 (b) breach but concluded that sentence reduction should only be afforded as a Charter  remedy if the breach somehow mitigates the seriousness of the offence, or if it constitutes a form of additional punishment or hardship for the accused.  Despite his concerns with the trial judge’s reasoning, Dubin C.J.O. upheld the 12-month concurrent sentences ordered at trial.

[62] These two limits on the use of sentence reduction to remedy a Charter  breach from Glykis were  mentioned by the B.C. Court of Appeal in R. v. Carpenter, 2002 BCCA 301, 168 B.C.A.C. 137.  In that case, the court delivered a fairly scathing criticism of sentence reduction as a s. 24(1)  remedy.  The accused in Carpenter was convicted for importing heroin into Canada and appealed his conviction and his sentence based on the ss. 8  and 10 (b) breaches he suffered at the time of his arrest.  Newbury J.A., for the majority, held that sentence reduction under s. 24(1)  was problematic in that it would offend the principles and objectives of sentencing in ss. 718  to 718.2  of the Criminal Code , it would impermissibly shift the focus of the inquiry from the offender and the offence to the conduct of state officials, and it would stretch “judicial resources to their limit” (para. 28).  Her ruling essentially foreclosed the possibility of ever reducing a sentence to remedy a Charter  violation.  In dissenting reasons, Donald J.A.  relied on Glykis and concluded that the Charter  breaches imposed hardship on the offender that was relevant to his punishment.  To “credit” the offender for the penalty of the breaches, Donald J.A. would have reduced the sentence from six to five years’ imprisonment.

[63] The judgments relying on s. 24(1)  appear to have been concerned about instances of abuse of process or misconduct by state agents in the course of the events leading to an arrest, to charges or to other criminal procedures.  But, inasmuch as they relate to the offender and the offence, those facts become relevant circumstances within the meaning of the sentencing  provisions of the Criminal Code .  As such, they become part of the factors that sentencing judges will take into consideration in order to determine  the proper punishment of the offender, without a need to turn to s. 24(1) . Factors unrelated to the offence and to the offender will remain irrelevant to the sentencing process and will have to be addressed elsewhere. In addition, the discretion of the sentencing judge will have to be exercised within the parameters of the Criminal Code . The judge must impose sentences respecting statutory minimums and other provisions which prohibit certain forms of sentence in the case of specific offences.

[64] A few final comments about the position of the Charter  in relation to the sentencing process are in order.  Like other legal processes, the sentencing system remains subject to the scrutiny of the Charter  and its overarching values and principles.  Although, as we have seen above, the proper interpretation and application of the sentencing process will allow courts to effectively address most of the situations where Charter  breaches are alleged, there may be exceptions to this general rule.  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.

[65]        In the present case, I agree that the acts of the police officers are serious.  Although the Court of Appeal did not need to rely on s. 24(1)  of the Charter , it crafted a fit and appropriate sentence which addressed the circumstances of the accused, while remaining within the statutory parameters of the Criminal Code .

VI.    Conclusion

[66] For these reasons, I would dismiss the appeal and the cross-appeal.

Appeal and cross‑appeal dismissed.

Solicitor for the appellant/respondent on cross‑appeal:  Attorney General of Alberta, Edmonton.

Solicitors for the respondent/appellant on cross‑appeal:  Dawson Stevens & Shaigec, Edmonton.

Solicitor for the intervener the Director of Public Prosecutions of Canada:  Public Prosecution Service of Canada, Toronto.

Solicitor for the intervener the Attorney General of Ontario:  Attorney General of Ontario, Toronto.

Solicitor for the intervener the Attorney General of Manitoba:  Attorney General of Manitoba, Winnipeg.

Solicitors for the intervener the Canadian Civil Liberties Association:  Paliare, Roland, Rosenberg, Rothstein, Toronto.

Solicitors for the intervener the Criminal Lawyers’ Association (Ontario):  Ruby & Shiller, Toronto.

Solicitors for the intervener the Criminal Trial Lawyers’ Association:  Parlee McLaws, Edmonton.