Law Times

Law Times • may 30, 2016 Page 9 www.lawtimesnews.com Principle in Nasogaluak used in 'creative ways' Sentencing credits granted by Ontario judges BY YAMRI TADDESE Law Times Y ears after the Supreme Court of Canada decid- ed to give a sentence re- duction to a defendant who suffered abuse at the hands of police, judges in Ontario are using that precedent to grant sentencing credits for a number of reasons. In R. v. Nasogaluak, the top court allowed sentence reduc- tion for improper state conduct because the accused received several punches to the head while resisting arrest on the sus- picion of drinking and driving. The sentencing credit principle in Nasogaluak is now being used "in a number of creative ways to get around many of the obstacles that exist . . . in sen- tencing," says criminal lawyer Daniel Brown. Brown says those obstacles include mandatory minimum sentences, the lack of availabil- ity of conditional sentences for many offences, and the absence of tools to give expanded credit for time spent in harsh pre-trial custody conditions. "These are all things that judges had a lot more discretion to do before because judges used to be able to give conditional sentences, there wasn't a man- datory [minimum] penalty, and judges could credit people for harsh prison conditions," Brown adds. "In the last 10 years, all these pieces of legislation came saying, 'No, no, no, now we're going to have to tell you how you sentence the offender.'" The surge in the use of Nas- ogaluak is as a response to atro- cious jail conditions and judg- es' inability to give offenders more than 1.5 days of credit for every day spent in remand, says Meaghan Thomas, criminal law- yer at Bayne Sellar Boxall. "The language in [Nasog- aluak] is incredibly powerful, but the first few years after it was released, we seemed to only be using it or relying on it quite sparingly," Thomas says. "The recent decisions reinforce the importance of Nasogaluak as a sentencing tool in response to a myriad of issues that have become more prevalent in the world of sentencing right now." In R. v. Doyle, a case involv- ing a man accused of carrying an illegal weapon in a public park, an Ontario Court of Jus- tice judge used the principle in Nasogaluak to give the accused sentencing credit for harsh re- mand conditions. "In short, and irrespective of any claim to compensation for lost remission, the offender's pre-trial detention was qualita- tively oppressive and medically compromising," Melvyn Green said. "Given his personal vul- nerabilities, I find that the re- mand hardships and privations endured by this offender were substantially more onerous than those typically experienced by remand inmates." Before the Truth in Senten- cing Act, judges had discretion to give credit on a 2:1 or even 3:1 basis for every day spent in remand custody. With that op- tion no longer available for the accused in Doyle, Green re- sorted to the Nasogaluak credit and reduced the total sentence for the accused to 22 months before applying the 1.5:1 ratio for pre-trial custody credit. A total sentence of 22 months is a lower-than-standard sentence for the offences in Doyle, ac- cording to Brown. "Applying the principle of totality, and factoring in the additional mitigation I attribute to the personally harsh condi- tions endured by the offender during his pre-trial custody, a fit global sentence is here one of 22 months, concurrent, for each of his two offences," Green said. "Applying the compensatory metric of 1.5:1 to each of the 325 days the offender spent in de- tention, some 16 months is sub- tracted from this total," he said, arriving at a six-month sentence for the accused. Typically, judges who want to give a credit larger than 1.5:1 for pre-trial custody have to do so with a Charter applica- tion before them, says Brown, but Nasogaluak established that an accused person doesn't have to bring a formal Charter application in order to receive some credit for harsh treatment. Thomas expects criminal law- yers will use Doyle often to ob- tain similar sentence reductions going forward. In another case, R. v. Williams, a judge also used the Nasogaluak credit to reduce a sentence due to police misconduct. "I do find that the Charter breaches, particularly that of searching the pockets of Mr. Williams prior to his arrest, is state misconduct that war- rants a reduction in the sentence to be imposed on Mr. Williams," the judge in that case said. While it's good that judges have a way to acknowledge im- proper police conduct in some form, Brown says the availability of the Nasogaluak credit could mean judges being more reluc- tant to throw out evidence alto- gether due to state misconduct. "It's good that you're getting some sort of credit; it would have been better to get the more sig- nificant acknowledgement of a Charter violation [with] the remedy of excluding evidence," he says. "In my mind, it can sometimes be a dangerous pre- cedent because even though in a lot of ways it can be used appro- priately, it may also lead to fewer judges excluding evidence be- cause they know there's another way they can compensate an ac- cused person." In the past, Nasogaluak has also been used to get around mandatory minimum senten- ces. In R. v. Donnelly, a 2014 case, Justice Ian Nordheimer or- dered a conditional sentence in- stead of a mandatory minimum sentence to be served in prison because of Charter breaches against the defendant, whose mental health deteriorated due to those breaches. "I have, therefore, concluded that this is one of those excep- tional cases that requires, in order to provide Mr. Donnelly with an effective remedy under s. 24(1) for the breaches of his Charter rights, to override the mandatory minimum term of imprisonment and, instead, im- pose a sentence that permits Mr. Donnelly to serve his sentence in the community," Nordheimer said in that case. He added: "While I am aware that the reference in Nasogalu- ak was to 'sentence reduction,' I do not see any reason in prin- ciple why the form of sentence cannot be altered, as opposed to reduced, as an equally effective remedy. Indeed, to some extent, permitting the sentence to be served in a different manner, rather than imposing a reduc- tion in the sentence, is more faithful to Parliament's objective of requiring a minimum length of sentence." LT FOCUS Meghan Thomas says she expects criminal lawyers will use the Doyle ruling to obtain sentence reductions. Every time you refer a client to our firm, you are putting your reputation on the line. It is all about trust well placed. TRUST Thomson, Rogers Lawyers YOUR ADVANTAGE, in and out of the courtroom. TF: 1.888.223.0448 T: 416.868.3100 www.thomsonrogers.com Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. Moreover, we are exceptionally fair when it comes to referral fees. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. DAVID TENSZEN | DAVID NEILL | STACEY STEVENS Untitled-3 1 2016-05-25 3:59 PM These are all things that judges had a lot more discretion to do before because judges used to be able to give conditional sentences, there wasn't a mandatory [minimum] penalty, and judges could credit people for harsh prison conditions. Daniel Brown

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