Top court to rule on Harper’s tough-on-crime sentencing act

A worker raises a Canadian flag in front of the Supreme Court in Ottawa March 21, 2014.
A worker raises a Canadian flag in front of the Supreme Court in Ottawa March 21, 2014. REUTERS/Chris Wattie

Sentence appeals don’t make it to the Supreme Court that often but when they do, they raise interesting legal debates.

In September of 2014, the Ontario Court of Appeal struck down a few provisions of Harper’s Truth in Sentencing Act that had to do with how much credit judges can give for pre-trial custody. Next week, on November 4, 2015, the Supreme Court will hear the Crown’s appeal. Both sides will present oral arguments as to whether these provisions are unconstitutional.

The Truth in Sentencing Act was enacted by the Conservative government in 2009 as part of its “tough-on-crime” agenda. The act added a provision to the Criminal Code, now under s. 719(3.1), that prohibits a judge from giving more than one-for-one credit for pretrial custody if the accused was denied bail due to previous convictions. In other words, the judge is not allowed to give one and a half days credit if the accused was denied bail because of his/her previous record.

The case before the top court involves Hamidreza Safarzadeh-Markhali, who was charged with multiple counts of possession of marijuana and firearms. He went before a justice of the peace for bail. The justice of the peace denied bail and wrote down he was denied because of his prior criminal convictions. He was convicted in 2011 and s. 719(3.1) of the Criminal Code prohibited his trial judge from giving him one and one-half days credit because he was denied bail due to his criminal record.

The accused’s lawyers asked the trial judge to strike down s. 719 (3.1) of the code. They called it a violation of the accused’s’ right to life, liberty and security of person under section 7 of the charter. The judge struck down the provision and gave Safarzadeh-Markhali one and a half day credit for each day spent in jail awaiting his trial. The Crown appealed the decision to the Ontario Court of Appeal.

The Ontario Court of Appeal dismissed the appeal and sided with the trial judge. The court felt the provision in question would create disparity in sentences for similar situations. The court was also concerned this provision would encourage vulnerable individuals not to apply for bail for fear of being denied and having to spend more time in prison after their conviction. The court of appeal found the provision too broad, resulting in “unfairness, discrimination and ultimately unjust sentences.” The Crown appealed this to the top court.

Next week, the Crown (appellant) will appear before the Supreme Court to say limiting the judge’s discretion in allocating “enhanced” credit of 1.5:1 to the accused is not a violation of section 7 of the charter. Why? The Crown says potential disparity in sentence is not “grossly disproportionate” to the objective of the legislation.

The Crown will also argue s.719 (3.1) of the Code is saved under section 1. Generally, a piece of legislation may offend a charter right but can be saved under section 1 of the charter if the Crown shows it has a pressing objective and the chosen means are proportional to this objective.

The Crown says there is a “pressing objective” at hand. Specifically, “imposing restrictions on the availability of enhanced credit for pre-sentence custody was to enhance public safety by increasing the likelihood that repeat offenders, and those who breach the conditions of their bail, will serve a greater portion of their sentence in post-sentence custody with access to rehabilitative programs that are typically unavailable in remand facilities.

The Crown also feels the means are not too excessive. Here, the Crown’s position is s. 719(3.1) of the code has benefits that outweigh its bad effects. The argument is this provision doesn’t go after just anyone who was denied bail. Instead, it targets those who were denied bail primarily because of their previous convictions, which speaks to their propensity to re-offend.

Safarzadeh-Markhali and his lawyers will be the respondents before the top court on November 4th arguing against the Crown. Their argument remains this provision is a violation of the charter and should be struck down. The judges should be able to use their discretion, when appropriate, to give one and a half days credit for every day spent in pre-trial custody regardless of the reasons for a bail denial.

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