Sentence Reductions

• Author: Matthew Asma/Matthew Gourlay
• Pages: 123-146

123

Sentence

Reductions

4

I. Introduction .................................................... 

II. Key Concepts in This Chapter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

III. When Is Sentence Reduction an Appropriate and Just Remedy? .......... 

A. The Leading Case: Nasogaluak ............................... 

B. The Appropriateness of a Sentence Reduction Can Usually

Be Determined Under General Sentencing Principles ............ 

C. Sentence Reduction Is Only Appropriate if State Misconduct Is

Related to the Oence and the Oender ....................... 

D. Sentence Reduction May Be Available Even Where No Evidence

Was Obtained in a Manner That Breached the Charter ........... 

E. Sentence Reduction May Be Available Even Where an Application

for Exclusion of Evidence Under Section() Was Denied ....... 

F. Good Faith and Non-Intrusive Breaches Are Unlikely to Justify

Reduction of Sentence ..................................... 

IV. Sentence Reductions Below a Mandatory Minimum .................... 

V. Enhanced Credit for Pre-sentence Custody in Excess of . to  .......... 

VI. Sentence Reductions for Specic Types of Charter Breach ............... 

A. Mistreatment by Police or Correctional Ocials . . . . . . . . . . . . . . . . . 

B. Over-Holding ............................................. 

C. Conditions of Detention .................................... 

D. Breach of Right to Counsel .................................. 

E. Illegal Searches ........................................... 

F. Abuse of Process Not Meriting a Stay ......................... 

G. Unreasonable Delay of Trial and Sentencing .................... 

H. Miscellaneous ............................................ 

VII. Procedure and Timing ............................................ 

© 2023 Emond Montgomery Publications. All Rights Reserved.

124 Charter Remedies in Criminal Cases

I. Introduction

A reduction in sentence may be an “appropriate and just” remedy for a Charter

breach that was not accorded a remedy at an earlier stage in the trial process. How-

ever, the impact of a Charter breach on the accused can often be accounted for under

the ordinary principles of sentencing, rendering recourse to section 24(1) unneces-

sary and inappropriate.

Less commonly, a Charter breach that is unrelated to any recognized principle of

sentencing may be a basis for invoking section 24(1) to lower what would otherwise

be a it sentence for the oence and oender. Only in exceptional circumstances will

it be appropriate to use section 24(1) to impose a sentence below an otherwise valid

mandatory minimum. Just what amounts to such exceptional circumstances has not

yet been satisfactorily fleshed out by appellate courts.

Developing jurisprudence in Ontario holds that unreasonable delay in the sentenc-

ing process after conviction can be addressed by a reduction of sentence as a section

24(1) remedy.

II. Key Concepts in This Chapter

• A Charter breach may be a mitigating factor on sentence; if so, it is generally

unnecessary to invoke section 24(1) because the ordinary principles of sentenc-

ing under the Criminal Code1 will do all of the work.

• When an accused suers physical mistreatment at the hands of police or cor-

rectional ocials, this will likely merit a sentence reduction without recourse

to section 24(1).

• Sentence reduction is nonetheless available as a section 24(1) remedy and may

be especially useful as a fallback remedy when a stay is unwarranted (or when

exclusion of evidence is unwarranted or unavailable) but the breach is nonethe-

less serious enough to demand some redress.

• Cases in which accused have been held in custody by police for an unreasonable

period of time prior to release (“over-holding”) are often promising candidates

for sentence reduction, as are cases in which accused are subject to unconsti-

tutional searches that do not yield any relevant evidence. Unreasonable delay

during the sentencing process also seems to be a good candidate for a section

24(1) remedy that reduces the otherwise appropriate sentence.

• Sentence reductions below a mandatory minimum are available only in excep-

tional cases.

1 RSC 1985, c C-46 [the Code].

© 2023 Emond Montgomery Publications. All Rights Reserved.