State and Police Misconduct as a Sentencing Factor

From Criminal Law Notebook

This page was last substantively updated or reviewed January 2019. (Rev. # 94472)

General Principles

See also: Sentencing Factors Relating to the Offence

A sentence may “be reduced in light of state misconduct even when the incidents complained of do not rise to the level of a Charter breach.”[1]

Section 7 of the Charter includes "a right to be secure against arbitrary force, especially physical force, by state actors."[2]

  1. R v Nasogaluak, 2010 SCC 6 (CanLII), [2010] 1 SCR 206, per LeBel J, at para 53
  2. R v Tran, 2010 ONCA 471 (CanLII), 257 CCC (3d) 18, per Epstein JA, at para 48

Police Misconduct

See also: Acting in Authority

Police misconduct during an investigation can play a factor in sentencing.[1] This includes having a mitigating factor where an accused's Charter rights have been breached.[2]

However, conduct amounting to basic violation of a procedural right under the charter will not usually result in a reduction where the breach does not invoke s. 24(1) of the Charter. [3]

In exceptional cases, the charges may be stayed.[4]

Use of Force by Peace Officers
Protection of persons acting under authority

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(a) as a private person,
(b) as a peace officer or public officer,
(c) in aid of a peace officer or public officer, or
(d) by virtue of his office,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.


(2) Where a person is required or authorized by law to execute a process or to carry out a sentence, that person or any person who assists him is, if that person acts in good faith, justified in executing the process or in carrying out the sentence notwithstanding that the process or sentence is defective or that it was issued or imposed without jurisdiction or in excess of jurisdiction.

When not protected

(3) Subject to subsections (4) [protection of persons acting under authority – when protected] and (5) [protection of persons acting under authority – power in case of escape from penitentiary], a person is not justified for the purposes of subsection (1) [protection of persons acting under authority] in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm.

When protected

(4) A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if

(a) the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested;
(b) the offence for which the person is to be arrested is one for which that person may be arrested without warrant;
(c) the person to be arrested takes flight to avoid arrest;
(d) the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm; and
(e) the flight cannot be prevented by reasonable means in a less violent manner.

R.S., 1985, c. C-46, s. 25; 1994, c. 12, s. 1.


Note up: 25(1), (2), (3), and (4)

Where a peace officer uses force that is not covered by s.25, a possible violation of the accused’s section 7 Charter rights arises.[5]

There is a violation of the “security of the person” in the context of a criminal prosecution where there is “state interference with bodily integrity and serious state-imposed psychological stress”[6]

Peace officers are expected to use force to effect an arrest or prevent flight from custody. This power is constrained by proportionality, necessity, and reasonableness.[7]

Use of force under s.25(3) is determined on a subjective and objective basis.[8]

Police should not be judged on a standard of perfection. It should be expected that they will be reacting quickly in emergency situations.[9]

Abuse by police may also give rise to a claim of civil damages.[10]

Reasonableness Factors for Police Action

When considering reasonableness of police actions, factors can be considered including:[11]

(a) the nature and seriousness of the offence for which the arrest is being made (one does not engage a bulldozer when a flyswatter is sufficient).
(b) the certitude of the fact of the offence which is the basis of the arrest having taken place (Persons are presumed to be innocent until proven guilty. The more that is known about the circumstances that establish guilt, the more thorough the inquiry, the more complete the objective evidence and the more reasonable the grounds upon which the arrest is made are important considerations which govern necessity and reasonableness).
(c) the need for detention as an aspect of intervention;
(d) the protection of the officers and other persons from violence;
(e) the prospect of flight/escape;
(f) the likelihood of continuation/resumption of offending conduct;
(g) the apparent physical condition of the person being arrested and/or alleged victims;
(h) police modules and training affecting the use of force;
(i) the prospect of escalation and retaliation;
(j) knowledge of the identity and access to the person to be arrested; (A person who is to be arrested does not, of necessity, have to be arrested at that time and place if use of force is contemplated when it is reasonable that this can be accomplished on another occasion without violence or with less violence.);
(k) the nature and extent of the force reasonably contemplated as likely to be necessary;
(l) other exigent circumstances.
Racialized Contexts

In a racialized used of force context, such as where white police officers are using force on a black suspect, it has been suggested that it is even more important for courts to denounce police conduct by making a measurable sentencing reduction in order to restore reacialized groups' respect for the law.[12]

  1. R v Pigeon, 1992 CanLII 869 (BC CA), 73 CCC (3d) 337, per Carrothers JA
  2. R v Nasogaluak, 2010 SCC 6 (CanLII), [2010] 1 SCR 206, per LeBel J
  3. eg. R v Charanek, 2011 ABPC 374 (CanLII), per Fradsham J
  4. R v Tran, 2010 ONCA 471 (CanLII), 257 CCC (3d) 18, per Epstein JA
  5. Section 7 of the Canadian Charter of Rights and Freedoms states that “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
  6. R v Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 SCR 30, per Dickson CJ
  7. Nasogaluak, supra, at para 32
  8. R v Chartier v Greave, [2001] OJ No 634 (ONSC)(*no CanLII links) at 29
  9. Nasogaluak, supra, at para 35
  10. Crampton v Walton, 2005 ABCA 81 (CanLII), 194 CCC (3d) 207, per Fruman JA
  11. R v Magiskan, 2003 CanLII 859 (ONSC), OJ No 4490, per Zelinski J
    R v Tang, 2011 ONCJ 525 (CanLII), per Reinhardt J, at para 81
    Crampton, supra, at para 6 (the officer must demonstrate that (i) was required or authorized by law to perform an action in the administration or enforcement of the law; (ii) acted on reasonable grounds in performing that action; and (iii) did not use unnecessary force.)
  12. R v Acheampong, 2018 ONCJ 798 (CanLII), per Burstein J, at para 59 - resulted in a 2 year reduction on a 7.5 year sentence

See Also