Media Advisory: BC Civil Liberties Association at Supreme Court of Canada in criminal sentencing case

For immediate release

Ottawa – Tomorrow, the Supreme Court of Canada will hear arguments in R. v. Safarzadeh-Markhali. The Court will consider 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 is intervening 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 will argue 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 will argue 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 BCCLA is represented by Nader Hasan and Gerald Chan of Stockwoods LLP.

The BCCLA’s argument in this case is available here.

What: Supreme Court of Canada to hear arguments in R. v. Safarzadeh-Markhali

When: Oral arguments will begin on Wednesday, November 4, 2015 at 9:30 a.m. (EST) / 6:30 a.m. (PST)

Where: Supreme Court of Canada (Ottawa, Ontario)

Who: Representatives of the BCCLA available for comment