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News and Views | Milligan’s Criminal Law Advisor

News and Views | Milligan’s Criminal Law Advisor

Restriction on enhanced credit under Truth in Sentencing Act violates principle of proportionality in sentencing



Milligan’s Criminal Law Advisor



By Jeffrey Milligan



The Supreme Court of Canada struck down as unconstitutional s. 719(3.1) of the Criminal Code, which provided that enhanced credit was not available to persons who were detained without bail primarily because of a criminal conviction

In 2009 Parliament enacted amendments to the Criminal Code that restricted the credit sentencing judges could give for pre-sentence custody.

The Truth in Sentencing Act amended the Criminal Code to provide generally that persons were entitled to one day of credit for each day spent in pre-sentence custody and, if the circumstances justified it, enhanced credit of no more than one and one half days for each day spent in pre-sentence custody. Pursuant to s. 719(3.1) of the Criminal Code, enhanced credit was not available if the offender was denied bail primarily because of a criminal conviction.

A judge of the Ontario Court of Justice held that that provision was unconstitutional and the Crown’s appeal to the Court of Appeal was dismissed. The Court of Appeal held that the restrictions on enhanced credit in s. 719(3.1) were unconstitutional because they violated the principle of proportionality in sentencing, which, they held, was enshrined in s. 7 of the Charter.

The Crown appealed to the Supreme Court of Canada which dismissed the appeal. The Supreme Court of Canada unanimously held that s. 719(3.1) was unconstitutional in that it was overbroad and thus it violated s. 7 of the Charter. They held that the Court of Appeal erred in principle in their finding that proportionality is a fundamental principle of justice under s. 7 of the Charter. Proportionality is a key principle of the law of sentencing but it is not a principle of fundamental justice under s. 7.

R. v. Safarzadeh-Markhali (2016), 2016 CarswellOnt 5652, 2016 CarswellOnt 5653, 2016 SCC 14, 2016 CSC 14 (S.C.C.)
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