Criminal Law


About Site

About Jim

Contact Us


GoTo   |  Sentencing |  Home  


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

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.

Jim O'Neil, LL.B.

GoTo   | Sentencing  | Home |