Right to Liberty and Security and the Police Use of Force: Excessive Use of Force Results in Reduction of Sentence

R v Nasogaluak, 2010 SCC 6 (19 February 2010)

The Canadian Supreme Court has held that the excessive use of force by police officers in conducting an arrest was a breach of the accused’s right to security of the person and warranted a reduction of his sentence.


In May 2004, the Royal Canadian Mounted Police arrested Nasogaluak for driving whilst intoxicated.  While attempting to arrest the defendant, the police officers pointed a gun at him, punched him three times in his head, and then twice in his back whilst he was pinned to the ground and resisting arrest.  The last two blows were strong enough to break the defendant’s ribs, puncturing his lungs.  The defendant was found to be over the legal blood alcohol limit and after release checked himself into hospital where he required emergency surgery to treat his broken ribs and collapsed lung.  Nasogaluak subsequently lost his job as a result of the injuries.

At trial, the defendant pleaded guilty to the charges of impaired driving and flight from police. Canadian Charter matters were raised in relation to sentencing.  The case was appealed to the Alberta Court of Appeal by the Crown, and then to the Supreme Court of Canada by both parties.

Trial judge’s decision

The trial judge found that although there had not been any breach of s 12 of the Canadian Charter (relating to cruel and unusual punishment), the police actions breached s 11(d) (right to the presumption of innocence) and s7 (right to life, liberty and security of the person). The trial judge also found that there had been a use of excessive force in apprehending the defendant.

As a remedy for the Charter breaches, the trial judge granted a reduced sentence.  The trial judge held that the breaches were ‘so egregious as to justify taking Mr Nasogaluak from the realm of cases that require incarceration’.

Court of Appeal’s decision

The Crown appealed to the Alberta Court of Appeal, where the majority upheld the trial judge’s findings as to the use of excessive force.  The Court of Appeal also upheld that s 24(1) of the Canadian Charter can validly can be used to reduce sentences, referring to the Ontario Court of Appeal case in R v Glykis (1995) 84 O.A.C. 140, where the court held that where the breach of the Charter mitigated the seriousness of the offence or imposed additional hardship or punishment on the accused, then the Charter may be used to reduce sentences.


The Supreme Court held that the process of sentencing allows a large degree of discretion, and that although judges may weigh sentencing objectives in the tailoring of a decision, no single sentencing objective trumps the others.  This process enables the court to balance and blend sentencing goals ‘up or down the scale of appropriate sentencing […] subject to the overarching guidelines and principles in the [Criminal] Code and in the case law’.

In this particular case, impaired driving prescribed a minimum sentence.  Whilst certain minimum sentences have been successfully challenged for gross disproportionality (under s12 of the Charter), absent a declaration of unconstitutionality, minimum sentences must be given where prescribed by the Criminal Code.  The trial judge was therefore held to have erred in his decision to reduce the sentence below the minimum prescribed.

This issue was separate to the matter of the use of s 24(1) of the Canadian Charter to reduce sentences.  This Charter remedy does not actually have to be invoked for Charter breaches to be taken into account in sentencing, with breaches forming part of the normal factors judges are able to take into account when sentencing.

The Supreme Court outlined the circumstances where a Charter based remedy may be used in the sentencing process, as distinct from the normal sentencing factors that can be taken into account.  The Supreme Court concluded that where factors are unable to be taken into account in mitigation of sentencing (that is, that the breaches do not relate to the offence itself), then Courts may use s 24(1) of the Charter to address factors unrelated to the offence and the offender.  This would include circumstances such as abuse of process, misconduct by state agents, charges or other criminal procedures.

Relevance to the Victorian Charter

Unlike the Canadian Charter, the Victorian Charter does not possess a remedy provision.  Further, although there is no express capacity for a court to award ‘any remedy it seems fit’ for a Charter breach, Victorian courts may deem unlawful any act by a public authority that is incompatible with a human right, or any decision that fails to give proper consideration to human rights (s 38(1)).

Section 39 of the Victorian Charter also provides the ability for a person to seek any relief or remedy on the basis of the unlawfulness of s 38(1). Given the dominant focus of the Victorian Charter on assessing the compatibility of acts of Parliament or acts by public authorities, the scope of s 24(1) of the Canadian Charter is not replicated.  This case is useful, however, in analogising police officers’ excessive use of force, and circumstances that may amount to unlawfulness under the Victorian Charter.  Whilst a person is unable to seek damages under the Victorian Charter and courts are not given the power to remedy Charter breaches as in Canada, it may have applicability within the general sentencing provisions in Victoria as a mitigating factor as discussed by the Supreme Court of Canada, or as a basis of relief under s 39(1).

The decision is available at www.canlii.org/en/ca/scc/doc/2010/2010scc6/2010scc6.html.

Alexandra Phelan, Law Graduate, Mallesons Stephen Jaques Human Rights Law Group