Criminal Law

SCC to rule on case dealing with pre-trial custody credit

The Supreme Court of Canada is expected to hand down a decision Friday in Toronto criminal lawyer Jill Presser’s case — the latest legal matter to challenge a key pillar of the former Conservative government’s tough-on-crime agenda, the Truth in Sentencing Act.

At issue in Her Majesty the Queen v. Hamidreza Safarzadeh-Markhali is a provision in the legislation that prohibits a trial judge from giving more than one-for-one pre-trial credit if a Justice of the Peace denies bail to a person because of the accused’s prior criminal record. The Truth in Sentencing Act, passed in 2009, removed a judge’s discretion to give enhanced credit for time spent in pre-trial custody in this circumstance.

Presser argues that the provision violates s. 7 of the Charter.

“The problem with this prohibition on enhanced credit for pre-trial custody is that it doesn’t give a judge any discretion on how to formulate that portion of the sentence to make it sensitive to the individual offender and the offence,” she tells

“What it basically means is that the trial judge has to accept whatever was decided by a Justice of the Peace at a bail hearing that was held sometimes months or years earlier. The JP is making a decision in relation to bail factors, which aren’t the same as sentencing factors.”

Presser says it is often vulnerable people who are detained in pre-trial custody and middle-class white people who are released. So when the sentencing judge, the judge apprised of the most information about the offence and the offender, goes to decide on the appropriate sentence, the judge can't give credit for time served before sentencing for those who were denied bail.

"This means that two offenders charged with the same offence, same criminal record and same sentence will serve different amounts of time in custody if one gets bail and the other doesn’t," she says. "The offender who got bail because he had a family and a job and owned a home will serve less time than someone who was denied bail because he did not have those resources or roots in the community. The provision at issue punishes people who are determined to be not bailworthy, which are not factors that should lead to punishment. The provision allows for greater punishment based on being marginal or vulnerable, not based on blameworthiness or need for punishment."

Hamidreza Safarzadeh-Markhali of Pickering was arrested in November 2010 on possession of marijuana and eight firearms offences. A JP denied him bail because of his prior criminal record. Safarzadeh-Markhali was convicted of all counts but one firearms offence.

Prior to sentencing, Safarzadeh-Markhali applied for a declaration that ss. 719(3) and 719(3.1) of the Criminal Code, as applied in this case for pre-trial custody credit, breach his right to liberty protected by s. 7 of the Charter.

Judge Michael Block agreed and held that a portion of s. 719(3.1) of the Criminal Code violates s. 7 of the Charter and is of no force and effect. He granted enhanced credit to Safarzadeh-Markhali of 1.5 days for each day he spent in pre-trial custody.

The Court of Appeal in R. v. Safarzadeh-Markhali, 2014 ONCA 627 (CanLII), upheld the trial judge’s ruling.

In its decision, the OCA said “one effect of s. 719(3.1) will be that the most vulnerable members of society – the poor, those without a support network and aboriginal people – may be reluctant to exercise their bail rights out of concern that the denial of bail will result in a s. 515(9.1) endorsement and a greater proportion of their sentence being served in custody.”

Writing for the panel, Chief Justice George R. Strathy said, “In my view, s. 719(3.1) is a structural impediment to the determination of a proportionate sentence and therefore to a just sentence. It skews the sentencing process, by making the outcome of the bail process a determinant of the length of the custodial portion of the sentence. But the bail process, and the considerations that go into granting or denying bail, are markedly different from the sentencing process.”

The Crown appealed the OCA ruling and the matter went to the SCC.

Presser says it’s important to note that the OCA affirmed there is a Charter right to a sentence that is not only constitutional, but the process to determine the sentence must also be constitutional.

“The court said that because the prohibition on enhanced credit in this context is absolute, it means that a trial judge has no discretion whatsoever — the trial judge’s hands are bound by operation of the law and there is no process through which the propriety of giving enhanced credit can be measured or weighed by a judge,” she says.

“And so, there is an absence of process to ensure justice in the particular situation. And the OCA said that absence of process leads to disproportionate sentences because the judge can’t ensure that sentences are proportional, fit and just in each circumstance. There’s no mechanism to ensure that each sentence is tailored."

Presser says if the high court upholds the OCA decision, the SCC will strike down the portion of the Truth in Sentencing Act that prohibits judges from using their discretion to give enhanced credit in cases where bail is denied.

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