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SCC rulings dismantle key elements of tough-on-crime agenda: Presser

Toronto criminal lawyer Jill Presser says the Supreme Court of Canada’s rulings Friday that aspects of two tough-on-crime laws are unconstitutional dismantle key parts of the former Conservative government’s justice policy legacy and could trigger a wave of sentence appeals by inmates. Toronto Star Edmonton Sun Globe and Mail Huffington Post Lawyers Weekly

Presser was counsel in one of the cases, R. v. Safarzadeh-Markhali, 2016 SCC 14, which dealt with the Truth in Sentencing Act.

“This ruling potentially affects thousands of inmates who will serve less time in jail — by as much as years going forward,” she says. “The SCC decision strikes down a significant chunk of the Truth in Sentencing Act; it is a landmark decision and an excellent result.”

In Safarzadeh-Markhali, the central issue was whether s. 719(3.1) of the Criminal Code infringes s. 7 of the Charter. The provision 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 argued the prohibition violates s. 7 of the Charter. 

In a unanimous decision, the high court agreed with her and dismissed the appeal by the Crown.

“The denial of enhanced credit for pre-sentence custody to offenders who are denied bail primarily because of a prior conviction is overbroad because it catches people in ways that have nothing to do with the legislative purpose of s. 719(3.1) of the Code, which is to enhance public safety and security. Section 719(3.1) thus violates s. 7 of the Charter,” writes Justice Beverley McLachlin.

“It is clear that s. 719(3.1) limits liberty. Its effect is to require offenders who come within its ambit to serve more time in prison than they would have otherwise. Laws that curtail liberty in a way that is overbroad do not conform to the principles of fundamental justice.”

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, and later, Safarzadeh-Markhali was convicted of all counts but one firearms offence. 

Prior to his 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.

The judge granted enhanced credit to Safarzadeh-Markhali of 1.5 days for each day he spent in pre-trial custody. The judge 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. 

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

The other SCC decision, R. v. Lloyd, 2016 SCC 13, strikes down a mandatory minimum sentence and says that, going forward, mandatory minimums are constitutionally vulnerable, says Presser.

Lloyd could trigger a wave of constitutional challenges to mandatory minimum sentences across the country,” she says. “In this decision, the SCC has effectively invited Parliament to reconsider whether it wants to maintain mandatory minimum sentences at all. And, if it does, the court has effectively invited Parliament to re-imagine them, so as to narrow their reach and/or to allow for greater judicial discretion even where there are mandatory minimums.”

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