The Ontario Court of Appeal Rejects Harper Attempt to Remove Decision Making From Justices.

Update:

The Ontario Court of Appeal ruled a Harper government tough-on-crime law unconstitutional because, among other things, it could create sentencing disparities for similarly placed offenders. On September 10, 2014 the Ontario Court of Appeal released its' decision in R. v. Safarzadeh-Markhali, 2014 ONCA 627 which struck down strike down the provision the Conservative government enacted in 2009 — specifically Section 719(3.1) of the Criminal Code — that eliminated the court’s discretion to give more than one day credit for each day spent in pretrial custody.
The Ontario Court of Appeal ruled a Harper government tough-on-crime law unconstitutional because, among other things, it could create sentencing disparities for similarly placed offenders. On September 10, 2014 the Ontario Court of Appeal released its’ decision in R. v. Safarzadeh-Markhali, 2014 ONCA 627 which struck down the provision that the Harper Conservative government enacted in 2009 — specifically Section 719(3.1) of the Criminal Code — that eliminated the court’s discretion to give more than one day credit for each day spent in pre-trial custody.This ruling from the  means that if an offender spent time in jail while awaiting his trial (“dead time”), the Judge or Justice of the Peace, is still allowed to exercise his/her discretion and decide what passage of time will be deducted from the sentence (“credit for pre-trial custody”) based on the amount of “dead time” that was spent in pre-trial custody. The Canadian Criminal Code states that similar crimes should get similar sentences. Credit for dead time ensures that those convicted of a crime and held in pre-trial custody get similar sentences to those who are released on bail. The Ontario Court of Appeal rejected the Harper Conservative’s “Truth in Sentencing Act“.

The Ontario Court of Appeal ruled a Harper government tough-on-crime law unconstitutional because, among other things, it could create sentencing disparities for similarly placed offenders.

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The Harper government’s tough-on-crime agenda took another hit Wednesday when Ontario’s top court struck down provisions that limit pretrial sentencing credit.

In its decision, the Court of Appeal ruled the law unconstitutional because, among other things, it could create sentencing disparities for similarly placed offenders.

“Both the offender and the public must have confidence in the fairness of the sentencing process and in the results,” the court ruled.

“Public confidence in the criminal justice system would be undermined by an artificial distinction that results in longer jail terms for some offenders.”

At issue is part of the Truth in Sentencing Act. The provision prohibits a trial judge from giving more than one-for-one pretrial credit if a justice of the peace denies bail to the person because of a previous conviction.

The situation occurred in the case of Hamidreza Safarzadeh-Markhali, of Pickering, who was arrested in November 2010 on drug and weapons charges.

At a bail hearing, the justice of the peace noted his previous convictions as the reason for his ongoing detention.

The sentencing “discount” had evolved to recognize that pre-trial custody in a remand jail is hard time, in overcrowded conditions with no access to treatment or rehabilitative programs. It is also “dead time” that doesn’t count toward any eventual parole or early release eligibility. The Criminal Code allowed sentence credits of 2-to-1 for each day in pre-trial custody, sometimes even rising to 3-to-1 in exceptional circumstances.
The sentencing “discount” had evolved to recognize that pre-trial custody in a remand jail is hard time, in overcrowded conditions with no access to treatment or rehabilitative programs. It is also “dead time” that doesn’t count toward any eventual parole or early release eligibility.
The Criminal Code allows sentence credits of 2-to-1 for each day in pre-trial custody, sometimes even rising to 3-to-1 in exceptional circumstances. This recent decision by the Ontario Court of Appeal will allow Justices to continue to exercise their discretion.

Following Safarzadeh-Markhali’s conviction in 2011, his lawyers called on the trial judge to strike down the provision the Conservative government enacted in 2009 — specifically Section 719(3.1) of the Criminal Code — that eliminated the court’s discretion to give more than one day credit for each day spent in pretrial custody.

Ontario Court of Justice Judge Michael Block agreed, and awarded Safarzadeh-Markhali 1.5 days credit for each day he spent in custody awaiting trial.

Among other things, Block found the law gave too much say to a justice of the peace in determining credit for pre-sentence custody. He also found it had a disproportionate effect on equally-placed offenders.

The Crown appealed, arguing Block had made legal errors. The law, the Crown said, aimed to target offenders with long criminal histories.

In siding with Block, the Appeal Court noted that three offenders with the same criminal records and given the same sentence could effectively end up serving substantially different amounts of time depending on whether they received bail.

In fact, the court found, a person who does not even apply for bail and is therefore not listed as detained because of a criminal record could end up with a shorter sentence than someone explicitly denied bail. The Appeal Court called that clearly unfair.

One effect, the court found, is that the most vulnerable members of society could be reluctant to exercise their bail rights out of concern that denial of bail could mean more time spent in custody.

“Like many attempts to replace the scalpel of discretion with a broadsword, its application misses the mark and results in unfairness, discrimination and ultimately unjust sentences,” the Appeal Court said.

The Conservative government’s attempt to crack down on crime has run afoul of the courts on several occasions.

Earlier this year, the Supreme Court affirmed the long-standing principle that offenders can receive extra credit for time spent in custody before sentencing. It has also struck down retroactive changes to parole eligibility, while other courts have refused to apply a new mandatory victim surcharge.

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