R. v. Nasogaluak (L.M.), (2007) 422 A.R. 222 (CA)

• Judge: Côté, McFadyen and Martin, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: November 14, 2007
• Citations: (2007), 422 A.R. 222 (CA);2007 ABCA 339

R. v. Nasogaluak (L.M.) (2007), 422 A.R. 222 (CA);

      415 W.A.C. 222

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. NO.047

Her Majesty The Queen (appellant) v. Lyle Marcellus Nasogaluak (respondent)

(0503-0383-A; 2007 ABCA 339)

Indexed As: R. v. Nasogaluak (L.M.)

Alberta Court of Appeal

Côté, McFadyen and Martin, JJ.A.

November 14, 2007.

Summary:

The accused pleaded guilty to impaired driving and evading police. Police used what the sentencing judge considered excessive force, which resulted in the accused suffering broken ribs and a punctured lung, which required emergency surgery. The judge ruled that the excessive force, combined with the police failure to document or disclose the force used and the failure to provide medical treatment, violated the accused's right to life, liberty and security of the person (Charter, s. 7). Although impaired driving mandated a minimum sentence of a $600 fine for a first offence and evading police usually resulted in imprisonment, the police conduct was so egregious as to warrant a reduction in sentence as an appropriate and just remedy under s. 24(1) of the Charter. Accordingly, the judge imposed a 12 month conditional discharge in lieu of convictions. The Crown appealed, submitting that a reduced sentence was not available and, even if it was, a conditional discharge was not warranted.

The Alberta Court of Appeal, Côté, J.A., dissenting in part, allowed the appeal in part. The court affirmed the conditional discharge for evading police, but substituted the minimum fine of $600 for impaired driving. The court held that "a reduction in sentence may be granted as a remedy for a Charter breach where the breach mitigates the seriousness of the offence, or imposes some form of punishment on the individual that should be factored in calculating the sentence". The court stated that "while we do not necessarily agree with the fact findings made by the sentencing judge or his choice of remedy, this court can only interfere if convinced that the sentencing judge committed an error of law or principle. We are unable to concluded that he committed such a reversible error".

Civil Rights - Topic 8373

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Variation of sentence - The Alberta Court of Appeal stated that "a reduction in sentence may be granted as a remedy for a Charter breach where the breach mitigates the seriousness of the offence, or imposes some form of punishment on the individual that should be factored in calculating the sentence. Generally, reductions in the sentence imposed should not be used as a means of punishing or sending a message to the police. 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. ... In the circumstances, it is unnecessary for us to decide whether a sentence reduction would be an appropriate remedy where the Charter breach falls short of mitigating the seriousness of the offence, or imposing a punishment or hardship on the offender, and we leave that question for another day." - However, if an offence was subject to a mandatory minimum sentence (e.g., $600 fine for first impaired driving offence), it was not open to a sentencing judge to impose a lesser sentence (e.g., conditional discharge) as a Charter remedy, as there was no jurisdiction to provide an individual constitutional exemption from a mandatory minimum sentence - See paragraphs 38 to 44.

Civil Rights - Topic 8373

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Variation of sentence - The accused pleaded guilty to impaired driving and evading police - Police used what the sentencing judge considered excessive force, which resulted in the accused suffering broken ribs and a punctured lung, which required emergency surgery - The judge ruled that the excessive force, combined with the police failure to document or disclose the force used and the failure to provide medical treatment, violated the accused's right to life, liberty and security of the person (Charter, s. 7) - Although impaired driving mandated a minimum sentence of a $600 fine for a first offence and evading police usually resulted in imprisonment, the police conduct was so egregious as to warrant a reduction in sentence as an appropriate and just remedy under s. 24(1) of the Charter - Accordingly, the judge imposed a 12 month conditional discharge - The Crown appealed, submitting that a reduced sentence was not available and, even if it was, a conditional discharge was not warranted - The Alberta Court of Appeal, Côté, J.A., dissenting, allowed the appeal in part - The court affirmed the conditional discharge for evading police, but substituted the minimum fine of $600 for impaired driving - A reduced sentence was available as a remedy for a Charter breach, but could not exempt an accused from a mandatory minimum sentence - Although the court would not have imposed the sentence imposed by the judge, the court could not interfere absent an error in law or principle, neither of which was present - There was no palpable and overriding error in finding that a sentence reduction was warranted - The court stated that "consecutive sentences do not apply where there is a conviction and a fine for one offence, and a conditional discharge for another" - See paragraphs 1 to 53.

Civil Rights - Topic 8544

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Appropriate and just remedy - [See first Civil Rights - Topic 8373 ].

Criminal Law - Topic 4431

Procedure - Verdicts - Discharges and dismissals - Conditional discharge in lieu of conviction - [See second Civil Rights - Topic 8373 ].

Criminal Law - Topic 5803

Sentencing - General - Consecutive sentences - [See second Civil Rights - Topic 8373 ].

Criminal Law - Topic 5805

Sentencing - General - Statutory range mandatory (incl. mandatory minimum sentence) - [See first Civil Rights - Topic 8373 ].

Criminal Law - Topic 5846.6

Sentencing - Considerations on imposing sentence - Violation of accused's rights - [See first Civil Rights - Topic 8373 ].

Criminal Law - Topic 5865.2

Sentence - Failure to stop a motor vehicle pursued by police (flight or evading police) - [See second Civil Rights - Topic 8373 ].

Criminal Law - Topic 5886

Sentence - Impaired driving - [See second Civil Rights - Topic 8373 ].

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court (incl. standard of review) - [See second Civil Rights - Topic 8373 ].

Cases Noticed:

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 13].

R. v. Roberts (R.N.) (2005), 361 A.R. 149; 339 W.A.C. 149; 2005 ABCA 11, refd to. [para. 14].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 17].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 18].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 18].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 18].

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education) et al., [2003] 3 S.C.R. 3; 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311; 2003 SCC 62, refd to. [para. 19].

Crampton v. Walton et al. (2005), 363 A.R. 216; 343 W.A.C. 216; 2005 ABCA 81, refd to. [para. 21].

Bolianatz et al. v. Edmonton Chief of Police Service et al. (2002), 313 A.R. 73; 2002 ABQB 284, refd to. [para. 22].

R. v. Bottrell (1981), 60 C.C.C.(2d) 211 (B.C.C.A.), refd to. [para. 22].

R. v. Mulligan (D.) (2000), 128 O.A.C. 224; 142 C.C.C.(3d) 14 (C.A.), refd to. [para. 22].

Anderson v. Smith et al., [2000] B.C.T.C. 596; 2000 BCSC 1194, refd to. [para. 22].

Levesque v. Zanibbi, [1992] O.J. No. 512 (Gen. Div.), refd to. [para. 22].

R. v. 974649 Ontario Inc. et al., [2001] 3 S.C.R. 575; 279 N.R. 345; 154 O.A.C. 345; 2001 SCC 81, refd to. [para. 29].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81, refd to. [para. 29].

R. v. Carpenter (J.D.) (2002), 168 B.C.A.C. 137; 275 W.A.C. 137; 165 C.C.C.(3d) 159; 4 C.R.(4th) 115; 95 C.R.R.(2d) 158; 2002 CarswellBC 1057; 2002 BCCA 301, refd to. [para. 31].

R. v. Stannard (1989), 79 Sask.R. 257; 52 C.C.C.(3d) 544 (C.A.), refd to. [para. 34].

R. v. Charles (1987), 61 Sask.R. 166; 36 C.C.C.(3d) 286 (C.A.), refd to. [para. 34].

R. v. Dennison (1990), 109 N.B.R.(2d) 388; 273 A.P.R. 388; 60 C.C.C.(3d) 342 (C.A.), leave to appeal refused (1991), 132 N.R. 320; 111 N.B.R.(2d) 90; 277 A.P.R. 90, refd to. [para. 34].

R. v. MacPherson (N.H.) (1995), 166 N.B.R.(2d) 81; 425 A.P.R. 81; 100 C.C.C.(3d) 216; 1995 CarswellNB 15 (C.A.), refd to. [para. 34].

R. v. Glykis (E.) and Mangal (A.) (1995), 84 O.A.C. 140; 41 C.R.(4th) 310; 100 C.C.C.(3d) 97; 24 O.R.(3d) 803; 31 C.R.R.(2d) 85; 1995 CarswellOnt 128 (C.A.), refd to. [para. 35].

R. v. Collins (L.) et al. (1999), 172 Nfld. & P.E.I.R. 1; 528 A.P.R. 1; 133 C.C.C.(3d) 8 (Nfld. C.A.), refd to. [para. 36].

R. v. Pigeon (C.) (1992), 14 B.C.A.C. 139; 26 W.A.C. 139; 73 C.C.C.(3d) 337 (C.A.), refd to. [para. 37].

R. v. Ferguson (M.E.) (2006), 397 A.R. 1; 384 W.A.C. 1; 2006 ABCA 261, leave to appeal granted (2007), 364 N.R. 395 (S.C.C.), refd to. [para. 44].

R. v. MacFarlane (1977), 55 A.R. 222; 3 Alta. L.R.(2d) 341 (C.A.), refd to. [para. 45].

R. v. Prymak (J.J.) (2005), 384 A.R. 350; 367 W.A.C. 350; 2005 ABCA 377, refd to. [para. 47].

R. v. Hirnschall (J.) (2003), 173 O.A.C. 5; 176 C.C.C.(3d) 311 (C.A.), refd to. [para. 50].

R. v. Weaver (T.J.) (2005), 363 A.R. 253; 343 W.A.C. 253; 194 C.C.C.(3d) 350; 2005 ABCA 105, refd to. [para. 57].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 65].

Counsel:

S.D. Hughson, Q.C., for the appellant;

L.K. Stevens, Q.C., for the respondent.

This appeal was heard on January 11, 2007, before Côté, McFadyen and Martin, JJ.A., of the Alberta Court of Appeal.

The judgment of the Court of Appeal was delivered on November 14, 2007, when the following opinions were filed:

McFadyen, J.A. (Martin, J.A., concurring) - see paragraphs 1 to 53;

Côté, J.A., dissenting in part - see paragraphs 54 to 67.