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Credit where credit is due: The Constitutionality of Pre-sentence Custody

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Last week, in R v. Safarzadeh-Markhali, the Supreme Court of Canada struck down with a specific provision of the Criminal Code that stemmed from the Conservative government's Truth in Sentencing Act. The act limited pre-sentence custody for people who were detained awaiting trial primarily because of their criminal records. This means that the law that limited people from getting enhanced credit in this situation is no longer valid. 

If someone is arrested and held in jail prior to being convicted, then that time in custody is attributed to their sentence. Historically, it was credited at a rate of 2:1, to recognize that the conditions in remand were generally harsher than once someone was serving a sentence. The Truth in Sentencing Act capped it at 1.5:1 with the goal of being more transparent and not allowing individuals to 'game' the system by stretching out the time before their conviction in order to minimize their sentence. The bill then went further to say that if someone was kept in jail following a bail hearing, primarily because they had a criminal record, then their pre-sentence custody would be capped at 1:1.

The difficulty with this math is that it puts two people facing the same sentence in different positions. In other words, somebody who was granted bail would end up facing a lower overall sentence, because generally provincial jails release inmates after serving two thirds of their sentence (and federal inmates can be eligible for parole even earlier).

The court found that the law violated s. 7 of the Charter which guarantees life, liberty and security of the person. Obviously the law impacts people's liberty, but it must do so in a way that is not overbroad. Here, the Court found that it was too broad and was ultimately punishing people it wasn't intended to punish.

But who was this law intended to affect? To decide this, the court went back to look at the law itself. There is not explicit 'legislative purpose' attached to the bill, so they then examined comments made by then Minister of Justice Peter McKay, who stated that the purpose of the law was to promote public safety by imposing longer sentenced and increasing exposure to rehabilitative programs.

The Court found that the law catches people who might be detained because of a criminal record but aren't violent. This is not unusual, as we often see individuals with long criminal records for breaches of probation or bail detained because the court feels that they can't follow court orders. Does this mean that they are violent? No. The court found that the endorsement of detention because of a criminal record does not necessarily reflect whether or not they pose a danger to society. The court suggested that a more effective scheme would allow a justice of the peace at a bail hearing to consider a criminal record along with the availability of rehabilitative programs and also consider whether the individual had been responsible for extending his pre-sentence custody.

I'd like to think that it is simply common sense that limiting pre-sentence custody on the basis of a criminal record is arbitrarily punishing because of their previous records, which. To me, it's simply a matter of math to make time spent in custody before a conviction be at least equal to the calculation of a sentence post-conviction.

I was surprised to see that there was no discussion as to whether or not the rehabilitative services that ground the law actually exist in provincial jails. They are certainly difficult, if impossible, to access at Ottawa Carleton's detention centre, which makes the reasoning behind the bill completely meaningless. And while the court was not overly critical in its language, it sent a clear message that laws much be much more carefully drafted and connected to the purpose they are meant to serve in order to be held up by the Charter. Still, it is another positive step towards dismantling 'Tough on Crime' policies that do not necessarily serve to make our communities any safer.

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