Nasogaluak: Foregone Opportunities in an Unduly Restrained Sentencing Decision
Response or Comment
Abuse of Power, Police, R v Nasogaluak, Supreme Court of Canada, Charter of Rights and Freedoms s 24(2), Aboriginal Accused, Criminal Code s 718.2(e), Justice
While Nasogaluak' usefully restates the role of the courts in guarding "against the illegitimate use of power by the police against members of our society, given is grave consequences," this unanimous decision is often so restrained that it fails to assert this responsibility with the resonance that its circumstances re-quire. The Supreme Court had opportunities to reinvigorate the use of s. 24(1) of the Canadian Charter of Rights and Freedoms in the sentencing process, to capitalize on the communicative function of sentencing to sternly condemn police misconduct and to re-emphasize the need to be vigilant regarding the obligations of s. 718.2(e) of the Criminal Code regarding Aboriginal accuseds. Despite its development of some positive themes, the decision is disappointing in each domain. Nasogaluak unnecessarily leaves vital issues to posterity for clarification and invigoration without adequate guideposts as to the orientation of the Supreme Court. In Tessling, the "midnight knock on the door" conjured up "the nightmare image of the police state," while Nasogaluak, despite its disturbing qualities for some minority Canadian arrestees, did not summon the same imagery. The case suggests that Thucydides conscience needs to be reinvoked by the Canadian judiciary: "Justice will not come to Athens until those who are not injured are just as indignant as those who are injured."
H Archibald Kaiser, "Nasogaluak: Foregone Opportunities in an Unduly Restrained Sentencing Decision" (2010) 72 CR (6th) 29.