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-Markhali’s 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 judge’s 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-Markhali’s car. He pulled up beside the driver’s 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 judge’s 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 officer’s evidence that he was able to trace the marijuana odour to Mr. Safarzadeh-Markhali’s car, because they were both driving at some speed on a busy road. He also found that the officer’s 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 officer’s 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-Markhali’s ethnicity influenced the officer’s 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 defendant’s 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-Markhali’s 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. Richer’s evidence as impermissible after-the-fact justification for the detention, nor did the trial judge use it for that purpose. Cst. Richer’s 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-Markhali’s 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. Safarzadeh’s 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 officer’s decision to detain him.

[18] The trial judge’s 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-Markhali’s ethnicity influenced the officer’s 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 judge’s 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 judge’s 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.]

[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-Markhali’s bail hearing and the trial judge’s 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 judge’s 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-Markhali’s 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 judge’s 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 offender’s 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-Markhali’s 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-Markhali’s 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-Markhali’s 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, aff’d 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 Parliament’s 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. 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.

(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 judge’s 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 court’s 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 person’s 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-Markhali’s 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 person’s 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 Canada’s 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 law’s 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 Canada’s 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-Markhali’s 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-Markhali’s 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 Crown’s 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 court’s 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 offender’s 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-Markhali’s 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 accused’s 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 offender’s 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-Markhali’s 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 offender’s 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 Crown’s 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