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R. v. Safarzadeh-Markhali

The issue in this case is whether individuals who have been denied bail as a result of prior convictions should be able to receive credit for time they served in jail prior to sentencing.

In the normal course, a person denied bail may receive up to 1.5 days of credit for each day spent in pre-sentence custody. The reasons for this practice reflect the often harsh conditions in pre-sentence custody and the lack of access to rehabilitative and other programming. However, under an amendment to sentencing law made by the Truth in Sentencing Act, 2009, a person denied bail primarily because of a previous conviction is ineligible for enhanced credit, and credit for pre-sentence custody is limited to 1:1.

The BCCLA intervened at the Supreme Court of Canada to argue that denying offenders enhanced credit for time served in pre-sentence custody can result in grossly disproportionate sentences that violate the Charter and amount to cruel and unusual punishment.

The BCCLA argued that these provisions create a sub-class of offenders who are punished more harshly than similarly situated offenders.  This additional punishment does not flow from the offender’s moral blameworthiness or other relevant factors, but is triggered by a decision of the bail court made when little is known about the offender, his or her circumstances, or the offence. Disadvantaged minorities and the poor will overwhelmingly comprise the sub-class affected by the law, as they are less likely to have a support system (i.e., family or friends who can pledge money, serve as sureties, or provide accommodations), and are thus more likely than other Canadians to be denied bail and detained pending trial.

Sentences are required by law to fulfill certain objectives, including denunciation, deterrence and rehabilitation. The BCCLA argued that the addition of extra punishment for offenders denied bail on the basis of a previous conviction furthers none of the goals of sentencing and improperly fetters the sentencing judge’s discretion to craft a just and proportionate sentence.

The Supreme Court of Canada issued its ruling in this case on April 15, 2016. In a unanimous decision, the Court held that the denial of enhanced credit for pre‑sentence custody to offenders who are denied bail primarily because of a prior conviction is overbroad, contrary to principles of fundamental justice. The law is overbroad because it catches people in ways that have nothing to do with the legislative purpose, which is to enhance public safety and security. Thus the law violates s. 7 of the Charter.

The BCCLA is represented by Nader Hasan and Gerald Chan of Stockwoods LLP.

The Supreme Court of Canada’s decision is available here.