



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Safarzadeh-Markhali, 2014 ONCA 627

DATE: 20140910

DOCKET: C55986 & C55910

Rosenberg, Watt and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

(Appellant on Sentence Appeal)

and

Hamidreza Safarzadeh-Markhali

Appellant

(Respondent on Sentence Appeal)

Roger A. Pinnock, for the Crown

P. Andras Schreck and Andrew Menchynski, for Hamidreza
    Safarzadeh-Markhali

Heard: May 5, 2014

On appeal from the conviction entered by Justice Michael
    Block of the Ontario Court of Justice on July 28, 2011 and the sentence imposed
    on July 25, 2012, with reasons on sentence reported at 2012 ONCJ 494.

Strathy J.A.:

A.

INtroduction

[1]

These appeals stem from Mr. Safarzadeh-Markhalis convictions for drug
    and firearms offences for which he received a six year sentence, before credit
    for pre-sentence custody. He appeals his conviction, alleging 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
.

[2]

The Crown requests leave to appeal sentence. It does not challenge the
    appropriateness of the sentence, but seeks to appeal the trial judges finding
    that s. 719(3.1) of the
Criminal Code
, R.S.C. 1985, c. C-46 violates
    the
Charter
and his grant of credit for pre-sentence custody on a 1.5
    to 1 basis.

B.

THE CONVICTION APPEAL

(1)

The facts

[3]

Mr. Safarzadeh-Markhali was driving along a busy street in Pickering,
    Ontario, in the curb lane. Cst. Lewis was driving a marked police car in the passing
    lane, about two car-lengths behind him. Both were travelling about 60
    kilometres an hour. The windows of the police car were open and Cst. Lewis
    claimed he detected a very strong odour of marijuana coming from Mr.
    Safarzadeh-Markhalis car. He pulled up beside the drivers side. He testified
    that he observed the driver, whom he described as an Arabic male, smoking
    something that he held in the thumb-and-forefinger grip associated with
    marijuana. The man immediately removed the cigarette from his mouth, moved it
    down in front of his body, and stared straight ahead.

[4]

Cst. Lewis activated the lights on his cruiser and directed Mr.
    Safarzadeh-Markhali to stop. He smelled an overwhelming odour of freshly burnt
    marijuana on approaching the car. He asked Mr. Safarzadeh-Markhali to get out
    of the car and arrested him for possession of marijuana. Cst. Lewis advised Mr.
    Safarzadeh-Markhali of his right to counsel and he asked to speak with his
    lawyer.

[5]

Cst. Lewis discovered a loaded 22 calibre pistol when he searched Mr.
    Safarzadeh-Markhali.

[6]

Another officer, Cst. Richer, arrived on the scene to assist with the
    search. He testified that when he opened the passenger door of the car, he
    detected an obvious odour of burnt marijuana. He saw Cst. Lewis discover a
    half-burnt and apparently recently-smoked marijuana roach between the seats.

[7]

Mr. Safarzadeh-Markhali was charged with possession of marijuana and
    eight separate firearms-related offences, including possession of a loaded
    prohibited firearm, careless storage of a firearm and possession of a firearm
    while prohibited from doing so.

(2)

The trial judges reasons

[8]

At his trial, Mr. Safarzadeh-Markhali alleged that his rights under ss.
    8, 9 and 10(b) of the
Charter
had been violated and sought exclusion
    of the loaded handgun found in his possession after his arrest. Because the
    Crown decided not to tender certain inculpatory statements Mr.
    Safarzadeh-Markhali made after his arrest, the sole issue was whether he had
    been unlawfully detained in violation of s. 9. It was conceded that if the
    detention was lawful, the search was incidental to the arrest. Mr.
    Safarzadeh-Markhali did not contest the nature of the substance found in the
    roach and he acknowledged that there was no issue he lacked the appropriate
    licences for the firearm.

[9]

The trial judge described the evidence of Cst. Lewis as unsatisfactory
    in several respects. He was uneasy about the officers evidence that he was
    able to trace the marijuana odour to Mr. Safarzadeh-Markhalis car, because
    they were both driving at some speed on a busy road. He also found that the
    officers note-taking was not consistent with proper practice and his
    reluctance to admit his mistakes made him reckless towards his duty to assist the
    truth-finding process. The trial judge was skeptical of the officers
    testimony that he determined Mr. Safarzadeh-Markhali was smoking a marijuana
    joint based on its hand-rolled appearance and the manner in which it was held.
    He thought it unlikely that the officer could identify a hand-rolled cigarette
    while travelling at a speed of 60 kilometers per hour. It was more likely that
    the manner in which the cigarette was smoked alone confirmed the hunch that the
    content was marijuana and not tobacco. He accepted that while the
    thumb-and-index-finger, palm-forward grip described by the officer might not
    be exclusive to marijuana smoking, it was a reasonable sign of it.

[10]

The
    judge observed that while he might have some difficulty with Cst. Lewis
    evidence on its own, it was corroborated by the evidence of Cst. Richer, who
    saw the recently-smoked roach in the car and smelled the strong odour of
    freshly-burnt marijuana.

[11]

The
    trial judge found there was no evidence to suggest that Mr.
    Safarzadeh-Markhalis ethnicity influenced the officers belief that he was
    smoking marijuana. He noted there was no evidence of any practice of
    stereotyping of Arabic-looking males as lawbreakers or marijuana smokers.

[12]

The
    trial judge concluded:

On the evidence as a whole, I find it likely that Constable
    Lewis smelled a burning joint while driving behind the defendant. He
    investigated his hunch that the smell originated from the defendants vehicle
    by pulling up beside it. Lewis then observed him smoking in the manner usually used
    with marijuana joints.

[13]

He
    found the stop was an appropriate exercise of police authority and there was no
Charter
breach associated with the stop, the arrest or the search
    incidental to arrest.

(3)

Analysis

[14]

Mr.
    Safarzadeh-Markhali asserts two errors. First, in considering whether the
    detention was arbitrary, the trial judge erred by relying on the evidence of
    Cst. Richer as after-the-fact justification for Mr. Safarzadeh-Markhalis
    detention and further erred in taking judicial notice of the manner in which he
    was holding the cigarette as characteristic of marijuana smoking.

[15]

Second,
    he says that the trial judge erred in concluding there was no evidence of
    racial profiling.

[16]

I
    do not regard Cst. Richers evidence as impermissible after-the-fact
    justification for the detention, nor did the trial judge use it for that
    purpose. Cst. Richers evidence was corroborative of Cst. Lewis evidence. His
    confirmation of the odour of marijuana in the car and his description of Cst.
    Lewis discovery of what appeared to be a recently-smoked joint, served to
    corroborate Cst. Lewis evidence that: there was a strong odour of
    freshly-smoked marijuana in the vehicle; he had observed Mr.
    Safarzadeh-Markhali smoking something in a manner consistent with marijuana;
    and Mr. Safarzadeh-Markhali had attempted to hide the item when the police
    cruiser pulled up beside him.

[17]

Nor
    did the trial judge base his conclusion on judicial notice. In describing the
    circumstances that led to his decision to stop Mr. Safarzadeh-Markhalis
    vehicle, Cst. Lewis referred not only to his observation of the smell of
    marijuana, but also to the fact that Mr. Safarzadeh-Markhali was smoking; that
    he was holding the object between his right thumb and index finger and smoking
    it from his lips; that he observed a puff of smoke from Mr. Safarzadehs mouth;
    and that when Mr. Safarzadeh-Markhali saw him, he removed the cigarette from
    his mouth, lowered it out of sight and started staring straight ahead. It is
    apparent that the manner in which Mr. Safarzadeh-Markhali was holding the joint
    was simply one of several circumstances that informed the officers decision to
    detain him.

[18]

The
    trial judges conclusions, which were based on his appreciation of all the
    evidence, were available to him. I would not give effect to this ground of
    appeal.

[19]

As
    to the second alleged error, Mr. Safarzadeh-Markhali contends that there are
    two indications of racial profiling. First, Cst. Lewis gave an unconvincing
    explanation for his description of Mr. Safarzadeh-Markhali as Arabic. Second,
    he gave a reason for the detention (that he smelled marijuana coming from the
    vehicle) which the trial judge found to be false.

[20]

In
    the leading case of
R. v. Brown
(2003), 64 O.R. (3d) 161 (C.A.),
    Morden J.A. observed at para. 44 that racial profiling can seldom be proven by
    direct evidence. No officer would admit to being influenced by racial stereotyping
    in exercising his or her discretion to stop a motorist. As a result, racial
    profiling must usually be proven based on inferences from circumstantial
    evidence. The absence of objective grounds for detention, or the fabrication of
    grounds, can lead to an inference that the detention was racially-motivated.

[21]

In
    this case, the officer said that the use of Arabic was simply a descriptor
    indicating that Mr. Safarzadeh-Markhali had lighter-coloured skin and was
    neither white nor black. Mr. Safarzadeh-Markhali submits that in the absence of
    any other descriptors, the use of this single term is evidence of racial
    profiling.

[22]

The
    trial judge found there was no evidence to suggest that Mr.
    Safarzadeh-Markhalis ethnicity influenced the officers belief that he was
    smoking marijuana. Moreover, unlike cases where the absence of evidence to
    justify the detention leads to an inference of racial profiling, the trial
    judge found that the evidence, including Cst. Lewis evidence that he smelled
    marijuana while following the car, gave grounds for detention and did not give
    rise to any inference that it was racially-motivated.

[23]

I
    see no basis on which to interfere with the trial judges conclusion and would
    not give effect to this ground of appeal.

(4)

Conclusion

[24]

For
    these reasons, I would dismiss the conviction appeal.

C.

the sentence appeal

[25]

The
    sentence appeal challenges the trial judges finding that s. 719(3.1) of the
Code
is inconsistent with the
Charter
and of no force and effect in the
    proceeding. The effect of s. 719(3.1), in combination with s. 515(9.1), is that
    a person denied bail primarily because of a previous conviction is ineligible
    for enhanced credit for pre-sentence custody.

[26]

Section
    719(3.1) was introduced by the
Truth in Sentencing Act
, S.C. 2009, c.
    29 (
TISA
). That statute replaced s. 719(3) of the
Code
with
    the following:

(3) In determining the sentence to be imposed on a person
    convicted of an offence, a court may take into account any time spent in
    custody by the person as a result of the offence but the court shall limit any
    credit for that time to a maximum of one day for each day spent in custody.

(3.1) Despite subsection (3), if the circumstances justify
    it, the maximum is one and one-half days for each day spent in custody
unless
    the reason for detaining the person in custody was stated in the record under
    subsection 515(9.1) or the person was detained in custody under subsection
    524(4) or (8)
.

(3.2) The court shall give reasons for any credit granted
    and shall cause those reasons to be stated in the record.

(3.3) The court shall cause to be stated in the record and
    on the warrant of committal the offence, the amount of time spent in custody,
    the term of imprisonment that would have been imposed before any credit was
    granted, the amount of time credited, if any, and the sentence imposed.

(3.4) Failure to comply with subsection (3.2) or (3.3)
    does not affect the validity of the sentence imposed by the court. [Emphasis
    Added.]
[1]

[27]

The
TISA
also amended s. 515 of the
Code
, which is contained in
    the group of sections in Part XVI dealing with judicial interim release. The
    new section, s. 515(9.1), stipulates that where bail is denied primarily
    because of a previous conviction of the accused, the presiding justice must
    state that reason, in writing, in the record. The effect of s. 719(3.1) is that
    where such an endorsement has been made, credit for pre-sentence custody is
    limited to 1:1, as provided in s. 719(3), as opposed to 1.5:1, permitted under
    s. 719(3.1).

[28]

Before
    discussing s. 719(3.1) in more detail, I will describe Mr.
    Safarzadeh-Markhalis bail hearing and the trial judges reasons on his
Charter
application and sentencing.

(1)     The bail hearing

[29]

Mr.
    Safarzadeh-Markhali was arrested on November 3, 2010. He appeared before a
    justice of the peace for a bail hearing on November 15, 2010. Due to the nature
    of the charges, he was responsible for showing cause for his release.

[30]

Some
    evidence was presented at the hearing, but before it had been completed, Mr.
    Safarzadeh-Markhali consented to his detention, presumably because he realized
    he was unlikely to obtain bail.

[31]

After
    hearing submissions on whether the information should be endorsed pursuant to
    s. 515(9.1), the justice of the peace made the endorsement. His reasons were
    brief:

Okay. After listening to both the submissions in regards to
    515(9.1) and given the criminal record that is one before the court, certainly
    the court is going to endorse the information in regards to 515(9.1) for the
    purpose that detention to the court even though he's already agreed to a
    consent order to consent to his own detention. It's not necessarily the fact
    that he has consented that the court has to look at by not endorsing the
    515(9.1). We're looking at what is put towards the court in regards to the
    previous convictions. Certainly the court is of the position that once you
    endorse it, given its requirement under the
Criminal Code
.

[32]

Mr.
    Safarzadeh-Markhali therefore remained in custody pending his trial. As a
    result of the endorsement, the time he spent in pre-sentence custody would be
    eligible for credit on sentencing at a ratio of only 1:1.

(2)     The trial judges reasons

[33]

Mr.
    Safarzadeh-Markhali was tried on June 14 and 17, 2011 and convicted on July 28,
    2011. Sentencing was scheduled for December 9, 2011. On December 1, 2011, defence
    counsel, who had not represented Mr. Safarzadeh-Markhali at the bail hearing,
    learned of the s. 515(9.1) endorsement and brought an application asserting
    that s. 719(3.1) violated s. 7 of the
Charter
.

[34]

Argument
    on the
Charter
application was heard April 24, 2012. The judge
    rendered his decisions on both the
Charter
application and sentence on
    July 25, 2012.

[35]

The
    trial judge found that Mr. Safarzadeh-Markhalis liberty interest had been
    violated by s. 719(3.1). He found the limitation of credit for pre-sentence
    custody to 1:1 was of no force and effect in this proceeding.

[36]

The
    trial judge found that the intent of the
TISA
was to address
    perceptions that accused persons in custody were manipulating enhanced credit
    to achieve shorter sentences than might otherwise be imposed, and that the
    sentencing process was not transparent regarding credit for pre-sentence
    custody.

[37]

The
    trial judges primary concern was that the legislation had the effect of
    removing a vital part of sentencing  the determination of credit for
    pre-sentence custody  from the trial judge and putting it in the hands of the
    justice of the peace. Unlike a trial judge at a sentencing hearing, the justice
    of the peace would have little information about the character of the offender
    and the nature of the offence and would have no information about the
    offenders ultimate diligence in achieving a speedy passage through the
    criminal justice system (para. 28). The provision had the effect of putting
    the least-informed justice in a position where they can fetter the discretion
    of the trial judge on sentence (para. 19).

[38]

The
    trial judge found that the provision had a disproportionate effect on equally-placed
    offenders. An identically-placed accused who was detained in custody pending
    trial, but for whom there was no endorsement, or an accused who was released on
    bail, would benefit from statutory remission, either directly or through the
    receipt of 1.5:1 credit; whereas an accused who was denied bail and received
    only 1:1 credit would not benefit from remission on the portion of his/her
    sentence served prior to sentencing.

[39]

The
    trial judge also found that the provision had the effect of doubly penalizing a
    person like Mr. Safarzadeh-Markhali for his previous convictions  once by
    taking away any recognition of the significance of pre-sentence custody and
    again in the actual sentencing, where his prior record and breaches of firearms
    prohibitions would be regarded as aggravating factors. The provision also had
    the effect of reducing the burden on the Crown to prove aggravating factors
    beyond a reasonable doubt.

[40]

The
    trial judge concluded:

The impugned portion of s. 719(3.1) has a disproportionate
    effect on equally placed offenders, injects into sentencing a lower burden of
    proof for aggravating factors, has no rational connection to the stated aims of
    the legislation and has the oblique purpose of increasing sentences in a manner
    outside the sentencing process.

The inescapable conclusion is that the liberty interest of the
    subject, a constitutionally protected right under s. 7 of the
Charter
,
    is violated by the impugned portion of s. 719(3.1). The appropriate remedy is
    to apply the remedy suggested in
Smickle
,
2012 ONSC
    602
. Pursuant to the provisions of s. 52 (1) of the
Constitution
    Act 1982
, I find that the portions of s. 719(3.1) which strip the
    determination of credit for pre-sentence custody from the trial court are
    inconsistent with the
Charter
and are of no force and effect in this
    proceeding.

[41]

In
    addressing the appropriate sentence, the trial judge noted that Mr.
    Safarzadeh-Markhalis record dated back to 2002, and included convictions for
    uttering threats, assault, aggravated assault, possession of a restricted
    firearm, possession of marijuana and possession of marijuana and cocaine for
    the purpose of trafficking. He was subject to a lifetime firearms prohibition
    under s. 109 of the
Code
. He had not been deterred from criminal
    conduct by the significant reformatory sentences he had previously received.

[42]

Mr.
    Safarzadeh-Markhali was 29 years old. He had come to Canada from Iran as a
    teenager. His father deserted the family shortly after they arrived. His
    younger sister died in a traffic accident and he had some psychiatric issues
    stemming from his family challenges (para 35).

[43]

The
    trial judge concluded that the primary sentencing objectives in Mr.
    Safarzadeh-Markhalis case were general deterrence and protection of the
    public. A significant penitentiary sentence was required to deter others. Two
    of the counts were for flagrant breaches of lifetime firearms prohibitions
    and there was a five year minimum sentence for a second conviction for
    possession of a loaded prohibited firearm.

[44]

The
    trial judge found that a global sentence of six years would be appropriate.

[45]

The
    trial judge noted that one purpose of s. 719(3.1) was to preclude enhanced
    credit in circumstances where persons in custody were manipulating the system
    by obtaining shorter sentences than might otherwise be imposed. In his view,
    the corollary was that persons who establish they had been diligent in bringing
    their cases to trial should be able to discharge the burden of establishing
    circumstances justifying enhanced credit.  Mr. Safarzadeh-Markhali had served
    20 months and 22 days of pre-sentence custody. The trial judge concluded that
    due to the persistent diligence of counsel in bringing the matter to trial,
    it was appropriate to award credit at 1.5:1, with the result that Mr.
    Safarzadeh-Markhali was entitled to credit of 31 months for pre-sentence
    custody.

(3)     The positions of the
    parties on the sentence appeal

[46]

The
    Crown submits the trial judge did not conduct a full analysis under s. 7 and s.
    1 of the
Charter
. He failed to apply the tests in
R. v. White
,
    [1999] 2 S.C.R. 417 to determine whether there had been a violation of s. 7 and
    in
R. v. Oakes
, [1986] 1 S.C.R. 103 to determine whether any breach
    was justified under s. 1.

[47]

The
    Crown asserts the trial judge erred in finding that s. 719(3.1) violates s. 7
    of the
Charter
. The Crown submits that, assuming, without conceding,
    that the provision affects Mr. Safarzadeh-Markhalis liberty interest,
    proportionality is not a principle of fundamental justice and s. 7 can only be
    violated if the conduct is grossly and excessively disproportionate, which it
    says is not the case here.

[48]

If
    the provision does breach s. 7, the Crown submits it does so in a manner
    demonstrably justified in a free and democratic society and it is therefore
    saved by s. 1.

[49]

Mr.
    Safarzadeh-Markhali submits the impugned provision engages his liberty interest
    and violates the principles of fundamental justice, discussed below. He says
    the Crown has not discharged its burden under s. 1.

(4)     Analysis

(a)

The Truth in Sentencing Act

[50]

The
Bail Reform Act
, S.C. 1970-71-72, c. 37 amended the
Criminal Code
to give judges discretion to take pre-sentence custody into account in
    sentencing.

[51]

In
    the application of the legislation, courts recognized that it is unfair to
    treat a day in custody prior to sentencing as equivalent to a day in custody
    after sentencing. There are two reasons. First, time in a remand centre
    awaiting trial does not count towards parole eligibility, earned remission or
    statutory release. Second, conditions on remand are often harsh, overcrowded
    and dangerous and rehabilitation programs are unavailable:
R. v.  Rezaie
(1996), 31 O.R. (3d) 713 (C.A.), at p. 721;
R. v. Summers
, 2014 SCC
    26, at para. 2;
R. v. Carvery
, 2012 NSCA 107, at paras. 15-19, affd
    2014 SCC 27.

[52]

As
    a result, sentencing judges generally granted enhanced credit of two days for
    every day in pre-sentence custody, or even more in exceptional cases:
Summers
,
    at para. 3;
R. v. Wust
, 2000 SCC 18, at para. 45.

[53]

The
TISA
reflected Parliaments concern that sentences were too lenient,
    that allowances for pre-sentence custody were overly generous and that the
    method of calculating sentences was opaque and failed to explain how credit was
    being given for time spent in custody prior to sentence: see
Summers,
at paras. 52, 53;
Carvery
(NSCA), at para. 83.

[54]

Another
    concern was that some accused persons were gaming the system, by deliberately
    prolonging their time in pre-sentence custody, in order to increase the credit
    they received, thereby reducing the overall length of the custodial part of
    their sentences. As a result, the remand population was increasing, putting
    pressure on provincial and territorial jails.
[2]
With credit for pre-sentence custody limited to 1.5:1, or even more so 1:1,
    there would be no incentive for an accused to prolong the time spent in
    pre-sentence custody.

[55]

Another
    objective of the legislation, which the impugned provision specifically
    reflects, was to enhance public safety by keeping repeat offenders and those
    who violated their bail conditions in custody for longer periods, thereby
    punishing them for their conduct and making rehabilitative programs available
    to them while in jail.
[3]

(b)

Judicial interpretation of the
TISA  R. v. Summers


[56]

The
    issue in
Summers
was whether the loss of eligibility for parole and
    early release for the time spent in pre-sentence detention can continue to
    justify enhanced credit under s. 719(3.1). This court upheld the trial judges
    decision that it can. Justice Cronk, giving the judgment of the court, held
    that the circumstances need not be exceptional and can include lost eligibility
    for early release and parole, if those would likely have been available to the
    accused. On the other hand, an accused who deliberately delays the proceedings
    may not be entitled to credit beyond 1:1. Nor would an accused who was unlikely
    to receive early parole or remission.

[57]

The
    Supreme Court of Canada dismissed the appeal, substantially agreeing with the
    decision of this court and with the Nova Scotia Court of Appeal in
Carvery
,
    the companion case. The appeal was decided on the basis of statutory
    interpretation and it was not necessary to determine whether the legislation
    complied with the
Charter
.

[58]

Nevertheless,
    Karakatsanis J. added that it is necessary to interpret s. 719(3.1) in a manner
    consistent with the principles and fundamental purposes of sentencing set out
    in s. 718 of the
Code
and as part of a coherent, consistent and
    harmonious statutory scheme. She noted, in particular, the requirements that a
    sentence be proportionate to the gravity of the offence and the degree of
    responsibility of the offender (s. 718.1) and that it take into account the
    parity principle  that it should be similar to sentences imposed on similar
    offenders for similar offences committed in similar circumstances (s. 718.2).

[59]

Justice
    Karakatsanis agreed with this court and with the Nova Scotia Court of Appeal in
Carvery
that an interpretation of ss. 719(3) and (3.1) that does not
    account for the loss of eligibility for early release and parole while in
    pre-sentence custody would be incompatible with the parity principle. Offenders
    who do not receive bail would receive longer sentences than otherwise identical
    offenders who are granted bail. She stated at para. 63 that, a rule that
    creates structural differences in sentences, based on criteria irrelevant to
    sentencing, is inconsistent with the principle of parity.

[60]

Justice
    Karakatsanis also endorsed this courts treatment of the proportionality
    principle. She said, at paras. 65 and 66,

[I]t is difficult to see how sentences can reliably be
    "proportionate to the gravity of the offence and the degree of
    responsibility of the offender" (s. 718.1) when the length of
    incarceration is also a product of the offender's ability to obtain bail, which
    is frequently dependent on totally different criteria.

Judicial interim release requires the judge to be confident
    that, amongst other things, the accused will neither flee nor reoffend while on
    bail. When an accused is able to deposit money, or be released to family and
    friends acting as sureties (who often pledge money themselves), this can help
    provide the court with such assurance. Unfortunately, those without either a
    support network of family and friends or financial means cannot provide these
    assurances. Consequently, as the intervener the John Howard Society submitted,
    this means that vulnerable and impoverished offenders are less able to access
    bail.

[61]

She
    added at para. 67:

For example, Aboriginal people are more likely to be denied
    bail, and make up a disproportionate share of the population in remand custody.
    A system that results in consistently longer, harsher sentences for vulnerable
    members of society, not based on the wrongfulness of their conduct but because
    of their isolation and inability to pay, can hardly be said to be assigning
    sentences in line with the principles of parity and proportionality. Accounting
    for loss of early release eligibility through enhanced credit responds to this
    concern. [Footnote omitted.]

(c)

Section 7 of the
Charter

[62]

Section
    7 of the
Charter
states:

Everyone has the right to life, liberty and security of the
    person and the right not to be deprived thereof except in accordance with the
    principles of fundamental justice.

[63]

The
    s. 7 analysis asks two questions: (a) Does the impugned law result in a real or
    imminent deprivation of life, liberty or security of the person, or a
    combination thereof? (b) If so, does the deprivation accord with the principles
    of fundamental justice? See
White
, at para. 38;
Canada (Attorney
    General) v. Bedford
, 2013 SCC 72, at paras. 58 and 93. The second question
    requires a determination whether a principle of fundamental justice is engaged
    and whether the deprivation was in accordance with that principle.

[64]

The
    applicant bears the onus of establishing a s. 7 violation on the balance of
    probabilities.

[65]

If
    a violation of s. 7 is established, the analysis moves to s. 1. The burden then
    shifts to the Crown to prove, in accordance with
Oakes
, that: (a) the
    legislation has a pressing and substantial objective; (b) the legislation is
    rationally connected to the objective; (c) the legislation impairs the
Charter
right as little as possible to achieve that objective; and (d) the deleterious
    effects of the legislation are proportionate to the results.

[66]

While
    the Crown does not concede that the impugned provision engages a protected
    interest, a convicted persons liberty interest is clearly affected by a
    statutory provision that has the effect of increasing the proportion of his or
    her sentence to be served in jail: see
R. v. Malmo-Levine
, 2003 SCC 7,
    [2003] 3 S.C.R. 571, at paras. 84, 89;
Rezaie
, at p. 721.

[67]

The
    analysis therefore turns to the identification of the applicable principle(s)
    of fundamental justice and whether the deprivation of liberty is in accordance
    with those principles. Although the trial judge found that Mr.
    Safarzadeh-Markhalis liberty interest had been breached, he did not expressly
    undertake an analysis of the principles of fundamental justice before
    concluding that the impugned provision was of no force and effect.

[68]

In
Canadian Foundation for Children, Youth and the Law v. Canada (Attorney
    General)
, 2004 SCC 4, [2004] 1 S.C.R. 76, at para. 8, McLachlin C.J.
    described three characteristics of a principle of fundamental justice. I
    summarize those as follows:

(a)

it
    must be a legal principle;

(b)

there
    must be sufficient consensus that the principle is vital or fundamental to our
    societal notion of justice; and

(c)

the
    principle must be capable of being identified with precision and applied to
    situations in a manner that yields predictable results.

A principle of fundamental justice must be identified
    with sufficient precision to yield a manageable standard against which to
    measure deprivations of life, liberty or security of the person:
R. v.
    D.B.
, 2008 SCC 25, [2008] 2 S.C.R. 3, at para. 46.

[69]

The
    Chief Justice described the principles of fundamental justice in
Bedford
,
    at para. 94, as the minimum requirements that a law that negatively impacts on
    a persons life, liberty, or security of the person must meet. She summarized
    the concept at para. 105:

The overarching lesson that emerges from the case law is that
    laws run afoul of our basic values when the means by which the state seeks to
    attain its objective is fundamentally flawed, in the sense of being arbitrary,
    overbroad, or having effects that are grossly disproportionate to the
    legislative goal. To deprive citizens of life, liberty, or security of the
    person by laws that violate these norms is not in accordance with the
    principles of fundamental justice.

[70]

The
    principles are grounded in Canadas legal traditions and understandings of how
    the state must deal with its citizens. They are regarded as essential to the
    administration of justice:
Canadian Foundation for Children, Youth and the
    Law
, at para. 8.

[71]

While
    a laws arbitrariness, overbreadth or gross disproportionality are frequently
    regarded as violations of the principles of fundamental justice, it is clear that
    these are instances, rather than limits, of the principles of fundamental
    justice. Courts have found that the principles of fundamental justice include:

·

prohibition of the interrogation of a youthful prisoner without
    access to counsel:
Canada (Prime Minister) v. Khadr
, 2010 SCC 3,
    [2010] 1 S.C.R. 44;

·

procedural fairness:
Canada (Citizenship and Immigration) v.
    Harkat
, 2014 SCC 37;
Charkaoui v. Canada (Citizenship and Immigration)
,
    2007 SCC 9, [2007] 1 S.C.R. 350;

·

the concept that only voluntary conduct should attract criminal
    liability
: R. v. Ruzic
, 2001 SCC 24, [2001] 1 S.C.R. 687;
R. v.
    Ryan
, 2013 SCC 3, [2013] 1 S.C.R. 14;

·

the principle that no one may be convicted or punished for an act
    or omission that is not clearly prohibited by law:
R. v. Levkovic
,
    2013 SCC 25, [2013] 2 S.C.R. 204;
Canadian Foundation for Children, Youth
    and the Law
; and

·

the presumption that children have diminished moral
    blameworthiness and culpability when they commit an offence:
R. v. D.B
.

[72]

Mr.
    Safarzadeh-Markhali asserts that the impugned provision offends four principles
    of fundamental justice: (a) the principle of proportionality in sentencing; (b)
    the principle that a sentence cannot be grossly disproportionate to the
    offence; (c) the principle of trial fairness, including the requirement that
    aggravating factors on sentence be proved beyond a reasonable doubt; and (d)
    the principle requiring a rational connection between the objects of a law and
    its effect  i.e., that the law must not be arbitrary.

[73]

In
    my view, the principle of proportionality in sentencing  a principle expressed
    in the
Code
itself and rooted in Canadas legal tradition  is a
    principle of fundamental justice. That principle is understood and endorsed by
    all Canadians and is applied in our courts on a daily basis. It was described
    as a principle of fundamental justice by LeBel J. in
R. v. Ipeelee
,
    2012 SCC 13, at para. 36. He added, at para. 37:

The fundamental principle of sentencing (i.e., proportionality)
    is intimately tied to the fundamental purpose of sentencing -- the maintenance
    of a just, peaceful and safe society through the imposition of just sanctions.
    Whatever weight a judge may wish to accord to the various objectives and other
    principles listed in the Code, the resulting sentence must respect the
    fundamental principle of proportionality. Proportionality is the
sine qua
    non
of a just sanction. First, the principle ensures that a sentence
    reflects the gravity of the offence. This is closely tied to the objective of
    denunciation. It promotes justice for victims and ensures public confidence in
    the justice system.

Second, the principle of proportionality ensures that a
    sentence does not exceed what is appropriate, given the moral blameworthiness
    of the offender. In this sense, the principle serves a limiting or restraining
    function and ensures justice for the offender. In the Canadian criminal justice
    system, a just sanction is one that reflects both perspectives on
    proportionality and does not elevate one at the expense of the other.

See also
R. v. Anderson
, 2014 SCC 41, at para.
    21.

[74]

Canadians
    understand that a sentence must be fair, in all its aspects. The punishment
    must fit the offence and must fit the offender. The concept of a just
    sanction is enshrined in the
Code
.  Section 718 declares that the
    purpose of sentencing is to contribute to respect for the law and the
    maintenance of a just, peaceful and safe society by imposing just sanctions
    that have one or more of several objectives, including the traditional
    objectives of denunciation, deterrence and rehabilitation.

[75]

The
    principle of proportionality is also set out in the
Code
, under the
    heading, Fundamental Principle:

Fundamental Principle

718.1. A sentence must be proportionate to the gravity of the
    offence and the degree of responsibility of the offender.

[76]

In
Sentencing
, 8th ed. (Markham: LexisNexis, 2012), at p. 30, Clayton C.
    Ruby states that [o]ur basic notion of fairness demands that every sentence be
    primarily and essentially appropriate to the offence committed, having regard
    to the nature of the crime and the particular circumstances in which it was committed.
    Proportionality is fundamentally connected to the general principle of
    criminal liability, which holds that the criminal sanction may be imposed only
    on those actors who possess a morally culpable state of mind.

[77]

The
    proportionality principle is informed by other sentencing principles in the
Code
,
    notably the parity principle in s. 718.2(b), which states that a sentence
    should be similar to sentences imposed on similar offenders for similar
    offences committed in similar circumstances.

[78]

In
R. v. Arcand
, 2010 ABCA 363, at para. 61, the majority described the
    parity principle as an indispensable element of the proportionality principle.
    It added that to diminish or ignore the importance of parity in sentencing is
    to effectively undercut the proportionality principle mandated by Parliament.

[79]

Proportionality
    fits the test under
Canadian Foundation for Children, Youth and the Law
for
    a principle of fundamental justice.

[80]

Indeed,
    the proportionality principle is routinely applied in sentencing for the very
    purpose of obtaining just and predictable results. It is integral to a just
    sentence and to public confidence in the sentencing process.

[81]

The
    Crown relies on
Malmo-Levine
in support of the proposition that the
    applicable standard is gross disproportionality, whether the punishment is
    challenged under s. 12 or s. 7. In that case, the Supreme Court observed, at
    para. 160:

To find that gross and excessive disproportionality of
    punishment is required under s. 12 but a lesser degree of proportionality suffices
    under s. 7 would render incoherent the scheme of interconnected "legal
    rights" set out in ss. 7 to 14 of the
Charter
by attributing
    contradictory standards to ss. 12 and 7 in relation to the same subject matter.
    Such a result, in our view, would be unacceptable.

[82]

I
    agree with Mr. Safarzadeh-Markhali that
Malmo-Levine
is
    distinguishable, because it dealt with the constitutionality of a
punishment
.
    I accept his submission that the principle of proportionality governs the
    sentencing
process
, while the standard of gross disproportionality
    applies to the
result
. An offender is entitled to a
process
directed at crafting a just sentence.

[83]

Proportionality
    is not to be confused with unfettered discretion. Parliament is entitled to
    enumerate considerations relevant to the determination of a proportionate
    sentence. The principles in s. 718.2, for example, are directed at determining
    the gravity of the offence and the degree of responsibility of the offender.
    These include: the parity principle, which I have already discussed; the
    principle that a sentence should be increased or reduced with reference to the
    aggravating or mitigating circumstances of the offence and the offender; the
    totality principle; and the requirement that the sentencing judge give specific
    consideration to the circumstances of aboriginal offenders.

[84]

As
    the Supreme Court observed in
Ipeelee
, at para. 37, the objectives of
    sentencing enumerated in the
Code
are also intimately bound up with
    the principle of proportionality. Parliament may provide, as it has in ss.
    718.01 and 718.02, that certain of these objectives may be more or less
    relevant depending on the offence. Parliament is also entitled to enact
    mandatory minimum sentences. If challenged under ss. 7 or 12 of the
Charter
,
    these fall to be reviewed on a standard of gross disproportionality.

[85]

However,
    the principle of proportionality prevents Parliament from making sentencing
    contingent on factors unrelated to the determination of a fit sentence. In this
    sense, the principle of proportionality is closely associated with the
    established principle that a law that violates life, liberty or security of the
    person cannot be arbitrary.

[86]

The
    principle of proportionality in sentencing is therefore distinct from the
    principle that the means used to achieve a legislative goal must be
    proportionate to the effects. Both are principles of fundamental justice and
    both can come into play in the same circumstances, including this case. Mr.
    Safarzadeh-Markhali argues both that s. 719(3.1) prevents sentencing judges
    from considering proportionality when giving credit for pre-sentence custody,
    and that the provision results in significantly longer sentences for repeat
    offenders who receive the endorsement.

[87]

I
    therefore turn to the third question  whether the deprivation of Mr.
    Safarzadeh-Markhalis liberty by the extension of the custodial portion of his
    sentence was in accordance with the principle of proportionality.

[88]

The
    motion judge found that the impugned provision had a disproportionate effect on
    equally-placed offenders. The Crown submits s. 719(3.1) does not draw a
    distinction between equally-situated offenders. Rather, it targets offenders
    with lengthy criminal histories, who will seldom be similarly situated with
    other offenders. Its effects are not grossly disproportionate because credit at
    a rate of 1:1 is still available to offenders who receive the endorsement.

[89]

In
Summers
, Karakatsanis J. noted at paras. 61 and 65 that the imposition
    of a longer sentence because the offender was unable to obtain bail can offend
    both the proportionality principle and the parity principle. See also the
    observations of the Nova Scotia Court of Appeal in
Carvery
, at paras.
    72-77.

[90]

In
    this case, the impugned provision offends the proportionality principle, and
    the parity principle which is a vital part of it, by subjecting identically
    placed offenders to different periods of incarceration, depending on whether
    they are able to obtain bail, for reasons that are irrelevant to sentencing. It
    also produces effects that are grossly disproportionate.

[91]

This
    is readily illustrated by the following examples, which I draw from Mr.
    Safarzadeh-Markhalis own circumstances and the examples given by his counsel.

[92]

Take
    the case of three identically-placed accused who commit exactly the same offences
    and have the same criminal record. Each is convicted and receives a sentence of
    six years in jail. One is released on bail, while two are denied bail. One of
    the two denied bail is subject to an endorsement under s. 515(9.1):

Accused X
has strong ties to the community and his
    sureties are substantial.  He is granted bail and released.

Accused Y
(i.e., Mr. Safarzadeh-Markhali) is denied
    bail and detained in custody primarily on account of his record and the justice
    makes the endorsement under s. 515(9.1). He spends 18 months in pre-trial
    custody. He is convicted and receives the maximum 1:1 credit permitted by s.
    719(3.1) as a result of the endorsement.

Accused Z
does not apply for bail, or is denied bail,
    but no endorsement is made. He receives 1.5:1 credit.

[93]

The
    consequences are illustrated by the following table:



Accused

(Credit Ratio)

Credit
          Given for 18 months pre-sentence custody

(months)

Sentence in addition to pre-sentence custody

(months)

Sentence served (including parole and warrant expiry)

(months)

Overall time in custody

(months)















X (Bail)

0

72

24-48

24-48



Y 
          Mr. Safarzadeh-Markhali  (No bail, endorsement)

(1:1)

18

54

18-36

36-54



Z (No bail, no
          endorsement)

(1.5:1)

27

45

15-30

33-48



[94]

The
    result in these examples is that Mr. Safarzadeh-Markhali, and others similarly
    situated, could serve up to an additional 12 months in custody due to their
    inability to obtain bail. The greater the time spent in pre-sentence custody,
    the greater the disparity will be. These examples refute the Crowns submission
    that the impugned provision does not distinguish between equally placed
    offenders.

[95]

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.

[96]

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. As Cronk J.A. observed in this courts
    decision in
Summers
, at para. 103, the test for bail and the
    determination of a fit sentence are conceptually and functionally different.
    The granting of bail involves a host of considerations relating to the
    likelihood the offender will attend court, whether he or she will re-offend
    while on bail, and whether detention is necessary to maintain confidence in the
    administration of justice. These considerations are not at play in a sentencing
    hearing. Moreover, the decision whether to grant bail to an accused person with
    previous convictions is a nuanced one, which may involve the balancing of that
    circumstance against others, such as the offenders ties to the community and
    the adequacy of his or her sureties. See e.g.
R. v. Janes
, 2011 NSCA
    10. These are not necessarily factors in a sentencing hearing.

[97]

Whether
    or not an offender was released on bail is entirely irrelevant to the
    determination of a fit sentence. An offender denied bail is entitled to the
    same sentence as an equally placed offender who has been released on bail.

[98]

By
    preventing this result, s. 719(3.1) interferes with parity, which is an
    essential ingredient of proportionality. While parity is not a straitjacket
    requiring equal sentences, it does require that any differences between
    sentences for similar offences in similar circumstances be rationally
    explicable:
Sentencing
, at pp. 36-38. To return to the observation of
    Karakatsanis J. in
Summers
, by creating structural differences in
    sentencing based on irrelevant criteria, the impugned provision is inconsistent
    with parity.

[99]

As
    mentioned above, Parliament may enumerate mitigating and aggravating factors
    relevant to the determination of a fit sentence. The Crown submits that
    Parliament has merely exercised its discretion to limit the application of a
    mitigating factor by removing certain assumptions about pre-sentence custody in
    relation to repeat offenders: that there is no programming available to the
    offender while in remand; that if there were, the offender would avail him or
    herself of it; and that the accused is an appropriate candidate for early
    release.

[100]

Again, this argument
    ignores the distinction drawn between repeat offenders who receive the
    endorsement under s. 515(9.1) and those who do not. It is arbitrary to remove
    these assumptions in relation to a subset of repeat offenders based on an
    irrelevant distinction. The absence of programming will impact equally on all
    repeat offenders detained in custody, regardless of the reason. There is no
    reason to think that offenders who do not receive the endorsement are more
    likely to avail themselves of whatever programming exists. While those released
    on bail may ultimately prove to be better candidates for parole, one cannot
    make the same distinction between repeat offenders denied bail because of a
    prior conviction and repeat offenders detained for other reasons. Moreover, offenders
    who receive the endorsement are unlikely to find conditions in remand any less
    harsh than those who do not.

[101]

This is not to
    say that the legislative purpose of s. 719(3.1)  increasing the custodial
    terms of repeat offenders  is not an appropriate objective. Nor is it to say
    that it cannot be achieved in accordance with the principles of fundamental
    justice. Unfortunately, however, 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. Instead of ensuring
    that repeat offenders serve a greater portion of their custodial sentences, the
    law targets only those denied bail due to their previous convictions.

[102]

As I find the
    impugned provision breaches s. 7, I must consider whether it is saved by s. 1.

(d)

Section 1 of the
Charter

[103]

Section 1 of the
Charter
states:

The
Canadian Charter of Rights and Freedoms
guarantees
    the rights and freedoms set out in it subject only to such reasonable limits
    prescribed by law as can be demonstrably justified in a free and democratic
    society.

[104]

In
R. v.
    Oakes
, Dickson C.J., who gave the majority judgment, described s. 1 as a
    stringent standard, which must be understood having regard to the
    constitutionally-guaranteed rights and freedoms in the
Charter
and the
    values and principles of a free and democratic society, which are their
    genesis. The onus of proof, on a civil standard, rests on the person invoking
    s. 1, who must bring himself/herself within the exceptional criteria that
    justify the right being limited.

[105]

The Chief
    Justice explained a test for the section 1 analysis, which can be summarized as
    follows:

(a)

the
    objective of the impugned law must be of sufficient importance to warrant
    overriding a constitutionally protected right or freedom;

(b)

the
    means chosen must be reasonable and demonstrably justified  this is a form of
    proportionality test which will vary in the circumstances, but requires a
    balancing of the interests of society with the interests of individuals and
    groups and has three components:


(i)

the measures must be rationally connected to the objective, designed to
    achieve the objective and not arbitrary, unfair or based on irrational
    considerations;


(ii)

the means chosen should impair the
Charter
right or freedom as
    little as possible; and


(iii)

there must be proportionality or balance between the benefits of the
    measure and its deleterious effects.

(at paras. 69 and 70).

[106]

In
Bedford
,
    at para. 125, McLachlin C.J. pointed out that s. 1 and s. 7 ask different
    questions. While s. 7 is concerned with the narrower question of whether the
    impugned law infringes individual rights in such a way that the negative
    effect is grossly disproportionate to the law's purpose, the question under s.
    1 is different. The issue there is,

[W]hether the negative impact of a law on the rights of
    individuals is proportionate to the pressing and substantial goal of the law in
    furthering the public interest. The question of justification on the basis of
    an overarching public goal is at the heart of s. 1, but it plays no part in the
    s. 7 analysis.

[107]

She added, at
    para. 126:

As a consequence of the different questions they address, s. 7
    and s. 1 work in different ways. Under s. 1, the government bears the burden of
    showing that a law that breaches an individual's rights can be justified having
    regard to the government's goal. Because the question is whether the broader
    public interest justifies the infringement of individual rights, the law's goal
    must be pressing and substantial. The "rational connection" branch of
    the s. 1 analysis asks whether the law was a rational means for the legislature
    to pursue its objective. "Minimal impairment" asks whether the
    legislature could have designed a law that infringes rights to a lesser extent;
    it considers the legislature's reasonable alternatives. At the final stage of
    the s. 1 analysis, the court is required to weigh the negative impact of the
    law on people's rights against the beneficial impact of the law in terms of
    achieving its goal for the greater public good. The impacts are judged both
    qualitatively and quantitatively. Unlike individual claimants, the Crown is
    well placed to call the social science and expert evidence required to justify
    the law's impact in terms of society as a whole.

[108]

I turn then to
    the features of the s. 1 analysis.

Pressing and substantial
    objective

[109]

The Crown
    submits that the primary objective of s. 719(3.1) is public safety. It makes
    recidivist groups  repeat offenders and those who were released on bail and
    later incarcerated due to a breach of their release conditions  ineligible for
    enhanced credit. Enhanced credit, the Crown submits, frequently results in
    members of these recidivist groups serving time served or short sentences,
    thereby depriving them of access to rehabilitative programs, and increasing the
    danger to the public.

[110]

I am prepared to
    accept that the objectives of s. 719(3.1) are pressing and substantial: to
    prevent manipulation of credit for pre-sentence custody and to enhance public
    safety by increasing the likelihood that repeat offenders, and those who breach
    the conditions of their bail, will serve part of their sentence in
    post-sentence custody with access to the rehabilitative programs that would be unavailable
    in remand centers.

[111]

I turn to the
    question whether the means chosen to effect these objectives are reasonable and
    demonstrably justified under the three headings identified in
Oakes
.

Rational connection

[112]

The Crown
    submits that the provision is rationally connected to the objectives referred
    to above.

[113]

I would not find
    a rational connection. To show a rational connection, the government must show
    a causal connection between the
infringement
and the benefit sought on
    the basis of reason or logic (emphasis added):
RJR-MacDonald Inc. v.
    Canada (Attorney General)
, [1995] 3 S.C.R. 199, at para. 153;
Alberta
    v. Hutterian Brethren of Wilson Colony
, 2009 SCC 37, [2009] 2 S.C.R. 567,
    at para. 48.

[114]

Here, Mr.
    Safarzedeh-Markhalis s. 7 right is infringed by an arbitrary distinction
    between offenders with criminal records depending on whether they seek bail or
    not and whether, if denied bail, they receive an endorsement under s. 515(9.1).
    The effect is that an accused with a serious criminal record may opt not to
    seek bail, thereby preserving the ability to obtain enhanced credit: see
R.
    v. Nadli
, 2014 NWTSC 47 at para. 119. Thus, the legislation may promote
    the very manipulation the
TISA
was designed to prevent. It may also
    undermine the accuseds constitutional right to bail.

Minimal impairment

[115]

The Crown says
    that s. 719(3.1) minimally impairs the
Charter
right, because credit
    at 1:1 is always a possibility. Moreover, it only affects an offender if the
    sentencing judge determines that the offender requires both a custodial
    sentence and a sentence longer than the time spent in remand.

[116]

The standard for
    minimal impairment is deferential because [t]he tailoring process seldom
    admits of perfection. The law need only fall within a range of reasonable
    alternatives:
RJR-MacDonald
at para. 160. In particular, the courts
    must accord a measure of deference to the legislature on complex social
    issues:
Hutterian Brethren
at para. 53.

[117]

I do not view
    the issue of credit for pre-sentence custody as a particularly complex social
    issue. Nor can I conclude that the means chosen by Parliament fall within a
    range of reasonable alternatives. The means chosen  an
ex ante
determination of an important aspect of the offenders sentence based on the
    outcome of a bail hearing  result in harsher sentences for offenders who spend
    excessive time in pre-sentence custody due to circumstances beyond their
    control, when compared with those who deliberately prolong their time in
    custody but, for any one of several reasons, do not receive an endorsement
    under s. 515(9.1) of the
Code
. Repeat offenders who would benefit from
    rehabilitative programs, but do not seek bail, or who consent to their
    detention, or whose records are not endorsed, or who obtain bail, may receive
    either enhanced credit or statutory remission.

[118]

By removing
    discretion from the sentencing judge and basing credit on a determination of
    the bail justice  whose function is wholly unrelated to sentencing 
    Parliament has not minimally impaired the
Charter
right.

[119]

There is a range
    of reasonable alternatives by which Parliament could achieve its objectives. I
    do not agree, however, with Mr. Safarzadeh-Markhalis submission that it could
    be done by capping credit across the board at 1.5:1, as this would not ensure
    that recidivists who require rehabilitation will serve longer custodial terms
    than those who are not repeat offenders.

[120]

It is
    unnecessary to delineate the precise content of a legislative provision that
    would fall within the range of reasonable alternatives that would minimally
    impair the
Charter
right. Simply by way of example, however, it would
    be possible to provide that in considering whether to grant credit in excess of
    1:1 in any particular case, a court must consider: (a) the offenders criminal
    record; (b) the availability of rehabilitative programs and the desirability of
    giving the offender access to such programs; and (c) whether the offender was
    responsible for prolonging the time spent in pre-sentence custody.

Proportionality between negative
    impact and beneficial effects

[121]

The final stage
    of the Oakes test involves a broader assessment of whether the benefits of the
    impugned law are worth the cost of the rights limitation, with reference to
    the values underlying the
Charter
:
Hutterian Brethren
, at
    para. 77. The Crown submits that the benefits of the provision outweigh any
    deleterious effects. Offenders who have a propensity to reoffend are more
    likely to receive access to rehabilitative programs. If the provision results
    in gross disproportionality in individual cases, those offenders may appeal
    their sentences.

[122]

The provision
    will undoubtedly keep some repeat offenders in custody longer. This may give
    those offenders greater access to rehabilitative programs. However, for
    rehabilitation and the other sentencing objectives to achieve their goals, both
    the offender and the public must have confidence in the fairness of the
    sentencing process and in the results. In my view, public confidence in the
    criminal justice system would be undermined by an artificial distinction that
    results in longer jail terms for some offenders. The benefits of the impugned
    law, which are at best unevenly distributed, cannot justify the limitation on
Charter
rights.

D.

Conclusion and order

[123]

For these
    reasons, I would dismiss the appeal as to conviction. I would grant leave to
    appeal the sentence but would dismiss the sentence appeal.

[124]

The words the
    reason for detaining the person in custody was stated in the record under
    subsection 515(9.1) or in s. 719(3.1) of the
Code
violate s. 7 of the
Charter
and are not saved by s. 1. Those words are declared to be of
    no force and effect pursuant to s. 52(1) of the
Constitution Act, 1982
.
    Accordingly, the Crowns appeal is dismissed. The validity of the references to
    ss. 524(4) and (8) in s. 719(3.1) is not before us and it is not appropriate to
    make any declaration in relation to their validity.

G.R. Strathy J.A

I agree M. Rosenberg
    J.A.

I agree David Watt
    J.A.

Released: September 10, 2014





[1]
The references in s. 719(3.1) to ss. 524(4) and (8), which are not applicable
    in this case, have the effect of limiting credit to 1:1 for offenders who are
    detained in custody because they violated the terms of their release or
    re-offended while on bail.



[2]
Comments by the Minister of Justice during the second reading of the Bill,
Official Report of Debates (Hansard)
,
    40th Parl., 2nd Sess., No. 41 (20 April 2009), at 1205-1225, 1230-1235.



[3]
See testimony of the Minister of Justice before the House Standing Committee on
    Justice and Human Rights,
Evidence of the
    Standing Committee on Justice and Human Rights
, 40th Parl., 2nd Sess.,
    (6 May 2009) at 1630.


