R v. Safarzadeh-Markhali The Supreme Court of Canada recently ruled the Criminal Code provision regarding pre-sentence or remand custody is unfair, in R v. Safarzadeh-Markhalit, 2016 SCC 14. The law that offenders from getting ‘enhanced credit’ is no longer valid.
The Criminal Code provisions stem from the Truth in Sentencing Act which was designed to restrict how much credit a person could receive after having been arrested and denied bail due.
What this means in practice is that the law constraining judges from giving people enhanced credit is no longer valid. It’s a sensible decision: any time spent in custody before conviction should count for at least as much credit as the offender would be otherwise be eligible for. If you get arrested and then get kept in jail before being convicted, that remand time in custody becomes part of any sentence you would get if you get convicted.
It was historically credited at a ratio of 2:1 (2 days credit for every day spent inside) in part to recognize that remand conditions tend to be more harsh, with fewer programs, than if you had been convicted snd sentenced. The Truth in Sentencing Act capped remand credit at 1.5:1 (the goal being a more somehow more transparent process and with a view to stopping offenders to stretch out the time spent in a remand centre in order to minimize their sentence.
The Act also provided that if someone was denied bail, primarily because they had a criminal record or had been arrested while already on bail, then any remand credit they might be entitled to was capped at 1:1. This obviously limited the discretion judges had when they sentenced someone. It also presupposes the presumption of guilt, when the golden rule is the presumption of innocence.
Another problem with the restrictions is that it means two people who happen to face the same sentence for the same crime are treated differently: in other words, somebody got released on bail would effectively get a lower overall sentence than the offender who was denied bail because jails release inmates for good behaviour (approximately 2/3 of their sentence in the provincial jail system and federal inmates are generally eligible for parole even sooner).
The Supreme Court ruled that the law violated the section of the Charter of Rights & Freedoms that guarantees life, liberty and security. In effect, the court said that the law should not impact anyone’s liberty in a way that is unfair or unreasonable and struck down this law. The court examined the legislative purpose behind the law along with comments made by the Justice Minister that the law was intended to promote public safety by imposing longer sentences and in turn increasing an inmates exposure to rehabilitative programs while in custody.
The Court found that the law, as written, was overly broad because it catches people who might be detained just because of their criminal record. For example, people with long criminal records for things like breaching bail or probation were being detained (and denied credit). They weren’t violent offenders or people that needed to be locked up longer to protect the community or because they needed to take advantage of rehabilitative programs while they were in prison. In short, they didn’t pose a danger to society.
The court suggested that a better idea was to leave it to a justice at a bail hearing to consider a the prisoner’s criminal record in conjunction with the availability of rehabilitative programs and whether the person’s behaviour was the underlying reason to limit whatever credit he or she might deserve for pre-sentence custody.
