R. v. Safarzadeh-Markhali (H.), (2016) 347 O.A.C. 1 (SCC)

• Judge: McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 15, 2016
• Jurisdiction: Canada (Federal)
• Citations: (2016), 347 O.A.C. 1 (SCC);2016 SCC 14

R. v. Safarzadeh-Markhali (H.) (2016), 347 O.A.C. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2016] O.A.C. TBEd. AP.045

Her Majesty the Queen (appellant) v. Hamidreza Safarzadeh-Markhali (respondent) and Attorney General of Canada, British Columbia Civil Liberties Association, Criminal Lawyers' Association (Ontario), John Howard Society of Canada, West Coast Prison Justice Society and Aboriginal Legal Services of Toronto Inc. (interveners)

(36162; 2016 SCC 14; 2016 CSC 14)

Indexed As: R. v. Safarzadeh-Markhali (H.)

Supreme Court of Canada

McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ.

April 15, 2016.

Summary:

The accused was convicted of drug and firearms offences. He was sentenced to six years' imprisonment, before credit for pre-sentence custody. He ppealed his conviction, alleging that the trial judge erred in finding that he was not unlawfully detained in breach of his rights under s. 9 of the Canadian Charter of Rights and Freedoms. The Crown requested leave to appeal sentence. The Crown sought to appeal the trial judge's finding that s. 719(3.1) of the Criminal Code violated the Charter, and his decision to credit the accused with pre-sentence custody on a 1.5 to 1 basis.

The Ontario Court of Appeal, in a decision reported at 325 O.A.C. 17, dismissed the conviction appeal. The court granted leave to appeal the sentence, but dismissed the sentence appeal. The Crown appealed.

The Supreme Court of Canada dismissed the appeal.

Civil Rights - Topic 681

Liberty - Principles of fundamental justice - General - [See Criminal Law - Topic 5801.1 ].

Civil Rights - Topic 686

Liberty - Principles of fundamental justice - Deprivation of - What constitutes - Through the Truth in Sentencing Act, Parliament amended the Criminal Code to remove a sentencing court's discretion to give any enhanced credit to offenders for pre-sentence custody, if they were denied bail primarily on the basis of their criminal record (s. 719(3.1)) - The Supreme Court of Canada held that the denial of any enhanced credit for pre-sentence custody to persons to whom bail was denied primarily because of a prior conviction violated s. 7 of the Charter - The purpose of the section was to enhance public safety and security by increasing violent and chronic offenders' access to rehabilitation programs - Its effect was to impose longer periods of custody on all persons who received an endorsement indicating they were denied bail primarily on the basis of a previous conviction - The section was unconstitutionally overbroad, thereby violating a principle of fundamental justice and s. 7 of Charter, because: (1) its ambit captured people it was not intended to capture: offenders who did not pose a threat to public safety or security; and (2) the limited availability of judicial review meant that persons wrongly tagged with an endorsement would be without recourse to have the error remedied - The section was not justified under s. 1 of the Charter - While it was rationally connected to its purpose of enhancing public safety and security, it was neither minimally impairing nor proportionate in the balance it achieved between salutary and deleterious effects - It made any person with a criminal record, even for missed court dates, a potential target for restriction of enhanced credit - See paragraphs 7 to 66.

Civil Rights - Topic 3107.2

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Overbreadth principle (incl. arbitrariness) - [See Civil Rights - Topic 686 ].

Civil Rights - Topic 3140

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to bail - [See Civil Rights - Topic 686 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 686 ].

Criminal Law - Topic 5801.1

Sentencing - General - Proportionality - The Ontario Court of Appeal held that "the principle of proportionality in sentencing - a principle expressed in the [Criminal] Code itself and rooted in Canada's legal tradition - is a principle of fundamental justice" - The Supreme Court of Canada disagreed - The court stated that "To say that proportionality is a fundamental principle of sentencing is not to say that proportionality in the sentencing process is a principle of fundamental justice for the purpose of determining whether a deprivation of liberty violates s. 7 of the Charter ... The principles and purposes for determining a fit sentence, enumerated in s. 718 of the Criminal Code and provisions that follow - including the fundamental principle of proportionality in s. 718.1 - do not have constitutional status. Parliament is entitled to modify and abrogate them as it sees fit, subject only to s. 12 of the Charter. Parliament can limit a sentencing judge's ability to impose a fit sentence, but it cannot require a sentencing judge to impose grossly disproportionate punishment. ... The standard imposed by s. 7 with respect to sentencing is the same as it is under s. 12: gross disproportionality." - See paragraphs 67 to 72.

Criminal Law - Topic 5801.1

Sentencing - General - Proportionality - [See Civil Rights - Topic 686 ].

Criminal Law - Topic 5842

Sentencing - Considerations on imposing sentence - Previous criminal offences - [See Civil Rights - Topic 686 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - [See Civil Rights - Topic 686 ].

Cases Noticed:

R. v. Summers (S.) (2014), 456 N.R. 1; 316 O.A.C. 349; 2014 SCC 26, refd to. [para. 1].

Bedford et al. v. Canada (Attorney General), [2013] 3 S.C.R. 1101; 452 N.R. 1; 312 O.A.C. 53; 2013 SCC 72, refd to. [para. 22].

R. v. Moriarity (2015), 477 N.R. 356; 2015 SCC 55, appld. [para. 24].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 28].

Carter et al. v. Canada (Attorney General) et al., [2015] 1 S.C.R. 331; 468 N.R. 1; 366 B.C.A.C. 1; 629 W.A.C. 1; 2015 SCC 5, refd to. [para. 57].

Hutterian Brethren of Wilson Colony et al. v. Alberta, [2009] 2 S.C.R. 567; 390 N.R. 202; 460 A.R. 1; 462 W.A.C. 1; 2009 SCC 37, refd to. [para. 27].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 58].

R. v. Ipeelee (M.), [2012] 1 S.C.R. 433; 428 N.R. 1; 288 O.A.C. 224; 318 B.C.A.C. 1; 541 W.A.C. 1; 2012 SCC 13, refd to. [para. 70].

R. v. Anderson (F.), [2014] 2 S.C.R. 167; 458 N.R. 1; 350 Nfld. & P.E.I.R. 289; 1088 A.P.R. 289; 2014 SCC 41, refd to. [para. 70].

R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, refd to. [para. 72].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 515(9.1) [para. 11]; sect. 719(3), sect. 719(3.1) [para. 10].

Counsel:

Roger A. Pinnock, for the appellant;

Jill R. Presser, Andrew Menchynski and Timothy J. Lutes, for the respondent;

Sharlene Telles-Langdon and Kathryn Hucal, for the intervener, the Attorney General of Canada;

Nader R. Hasan and Justin Safayeni, for the intervener, the British Columbia Civil Liberties Association;

Ingrid Grant, for the intervener, the Criminal Lawyers' Association (Ontario);

Andrew S. Faith and Jeffrey Haylock, for the intervener, the John Howard Society of Canada;

Greg J. Allen and Kenneth K. Leung, for the intervener,  the  West  Coast  Prison  Justice Society;

Jonathan Rudin and Emily Hill, for the intervener, the Aboriginal Legal Services of Toronto Inc.

Solicitors of Record:

Attorney General of Ontario, Toronto, Ontario, for the appellant;

Presser Barristers, Toronto, Ontario; Timothy J. Lutes, Toronto, Ontario, for the respondent;

Attorney General of Canada, Winnipeg, Manitoba, for the intervener, the Attorney General of Canada;

Stockwoods, Toronto, Ontario, for the intervener, the British Columbia Civil Liberties Association;

Russel Silverstein & Associate, Toronto, Ontario, for the intervener, the Criminal Lawyers' Association (Ontario);

Polley Faith, Toronto, Ontario, for the intervener, the John Howard Society of Canada;

Hunter Litigation Chambers, Vancouver, British Columbia, for the intervener, the West Coast Prison Justice Society;

Aboriginal Legal Services of Toronto, Toronto, Ontario, for the intervener, the Aboriginal Legal Services of Toronto Inc.

This appeal was heard on November 4, 2015, by McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ., of the Supreme Court of Canada.

On April 15, 2016, McLachlin, C.J.C., delivered the following decision for the court in both official languages.