SUPREME
COURT OF CANADA
Citation: R. v. Safarzadeh-Markhali, 2016 SCC 14, [2016] 1
S.C.R. 180
|
Appeal
heard: November 4, 2015
Judgment
rendered: April 15, 2016
Docket: 36162
|
Between:
Her
Majesty The Queen
Appellant
and
Hamidreza
Safarzadeh-Markhali
Respondent
- and -
Attorney
General of Canada,
British
Columbia Civil Liberties Association,
Criminal
Lawyers’ Association (Ontario),
John
Howard Society of Canada,
West
Coast Prison Justice Society and
Aboriginal
Legal Services of Toronto Inc.
Interveners
Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis,
Wagner, Gascon, Côté and Brown JJ.
Reasons
for Judgment:
(paras. 1 to 74)
|
McLachlin C.J. (Abella, Cromwell,
Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ. concurring)
|
R. v. Safarzadeh‑Markhali, 2016 SCC 14,
[2016] 1 S.C.R. 180
Her Majesty The Queen Appellant
v.
Hamidreza Safarzadeh‑Markhali Respondent
and
Attorney General of Canada,
British Columbia Civil Liberties Association,
Criminal Lawyers’ Association (Ontario),
John Howard Society of Canada,
West Coast Prison Justice Society and
Aboriginal Legal Services of
Toronto Inc. Interveners
Indexed as: R. v.
Safarzadeh‑Markhali
2016 SCC 14
File No.: 36162.
2015: November 4; 2016: April 15.
Present: McLachlin C.J. and Abella, Cromwell, Moldaver,
Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
on appeal from the court of appeal for ontario
Constitutional
law — Charter of Rights — Fundamental justice — Overbreadth — Sentencing
— Credit for pre‑sentence custody — Criminal Code denying enhanced credit
in certain circumstances — Whether denial of enhanced credit for pre‑sentence
custody to offenders who are denied bail primarily because of prior conviction
is overbroad in violation of s. 7 of Canadian Charter of Rights and
Freedoms — If so, whether infringement justifiable under s. 1 of Charter —
Criminal Code, R.S.C. 1985, c. C‑46, ss. 515(9.1) , 719(3.1) .
Constitutional
law — Charter of Rights — Fundamental justice — Sentencing — Whether
proportionality in sentencing process a principle of fundamental justice under
s. 7 of Canadian Charter of Rights and Freedoms .
Sentencing
courts have historically given enhanced credit for time spent in pre‑sentence
custody, typically at a rate of two days for every day of detention. The Truth
in Sentencing Act amended the Criminal Code to provide a general
expectation of one day of credit for every day spent in pre‑sentence
custody and, if the circumstances justify it, enhanced credit to a maximum of
one and a half days. Pursuant to s. 719(3.1) of the Code, enhanced
credit is not available if the person was denied bail primarily because of a
prior conviction. M was arrested, charged with several offences and consented
to his detention. At his bail hearing, the bail judge concluded that
s. 515(9.1) required her to make an endorsement that M’s detention was
warranted primarily because of M’s criminal record. The endorsement made M
ineligible to receive enhanced credit for pre‑sentence custody. The
sentencing judge found the restrictions on enhanced credit in s. 719(3.1)
of the Code unconstitutional. The Ontario Court of Appeal agreed and
concluded that the challenged portion of s. 719(3.1) is of no force and
effect.
Held:
The appeal should be dismissed.
The
denial of enhanced credit for pre‑sentence custody to offenders who are
denied bail primarily because of a prior conviction is overbroad because it
catches people in ways that have nothing to do with the legislative purpose of
s. 719(3.1) of the Code, which is to enhance public safety and
security. Section 719(3.1) thus violates s. 7 of the Charter .
It
is clear that s. 719(3.1) limits liberty. Its effect is to require
offenders who come within its ambit to serve more time in prison than they
would have otherwise. Laws that curtail liberty in a way that is overbroad do
not conform to the principles of fundamental justice.
The
first step in the overbreadth analysis is to ascertain the purpose of the
challenged law. To determine a law’s purpose, courts look to statements of
purpose in the legislation, if any; the text, context, and scheme of the
legislation; and extrinsic evidence such as legislative history and evolution.
In presenting the Truth in Sentencing Act to Parliament, the Minister of
Justice explained that denial of enhanced credit was aimed at promoting public
safety and public confidence in the justice system, by imposing longer
sentences on violent and repeat offenders and increasing their exposure to
rehabilitative programming. Based on the text, context and scheme of the
legislation, coupled with the Minister’s statements of purpose, the animating
social value behind the denial of enhanced credit is enhancing public
confidence in the justice system. The legislative purpose of the total denial
of enhanced credit for pre‑sentence custody to offenders who are denied
bail because of a prior conviction is to enhance public safety and security by
increasing violent and chronic offenders’ access to rehabilitation programs.
The means for achieving the legislative purpose is the challenged provision
itself and the effect of the provision is to impose longer periods of custody
on all persons who receive an endorsement under s. 515(9.1) of the Code.
It
is a principle of fundamental justice that a law that deprives a person of
life, liberty, or security of the person must not do so in a way that is
overbroad. The law must not go further than reasonably necessary to achieve its
legislative goals. The provision in issue captures people it was not intended
to capture: offenders who do not pose a threat to public safety or security.
Section 515(9.1) does not specify or even broadly identify the offences that
warrant an endorsement and limited availability of judicial review means that persons
wrongly tagged with an endorsement will be without recourse to have the error
remedied.
The
infringement of s. 7 of the Charter is not justified under
s. 1 . While the challenged provision is rationally
connected to its purpose of enhancing public safety and security, it is neither
minimally impairing nor proportionate. Alternative and more reasonable means of
achieving its purposes were open to Parliament. The benefit to public safety by
increasing access to rehabilitation programs is not trivial but the law’s
overbreadth means that offenders who have neither committed violent offences
nor present a risk to public safety will be unnecessarily deprived of liberty.
The
Court of Appeal erred in holding that proportionality in the sentencing process
is a principle of fundamental justice under s. 7 of the Charter .
The principles and purposes for determining a fit sentence, enumerated in
s. 718 of the Code and provisions that follow — including the
fundamental principle of proportionality in s. 718.1 — do not have
constitutional status. The constitutional dimension of proportionality in
sentencing is the prohibition of grossly disproportionate sentences in
s. 12 of the Charter . The standard imposed by s. 7 with
respect to sentencing is the same as it is under s. 12 .
Cases Cited
Applied:
R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485; referred to: R.
v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575; Canada (Attorney General)
v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; RJR‑MacDonald Inc.
v. Canada (Attorney General), [1995] 3 S.C.R. 199; Carter v. Canada
(Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; Alberta v.
Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; R.
v. Oakes, [1986] 1 S.C.R. 103; R. v. Ipeelee, 2012 SCC 13,
[2012] 1 S.C.R. 433; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; R. v. Malmo‑Levine, 2003 SCC 74,
[2003] 3 S.C.R. 571.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms,
ss. 1 , 7 , 12 .
Constitution Act, 1982, s. 52 .
Criminal
Code, R.S.C. 1985, c. C‑46, ss. 515(9.1) , 520(1) , 521(1) ,
524(4) , (8) , 718 , 718.1 , 718.2 (b), 719(3) , (3.1) .
Truth in Sentencing Act, S.C. 2009,
c. 29 .
Authors Cited
Canada. House of Commons. House of Commons Debates,
vol. 144, No. 41, 2nd Sess., 40th Parl., April 20, 2009,
pp. 2417‑18 and 2432.
Canada. House of Commons. Standing Committee on Justice and Human
Rights. Evidence, No. 20, 2nd Sess., 40th Parl., May 6, 2009,
pp. 11-12 and 15.
APPEAL
from a judgment of the Ontario Court of Appeal (Rosenberg, Watt and Strathy
JJ.A.), 2014 ONCA 627, 122 O.R. (3d) 97, 316 C.C.C. (3d) 87, 325 O.A.C. 17, 13
C.R. (7th) 30, 319 C.R.R. (2d) 36, [2014] O.J. No. 4194 (QL), 2014
CarswellOnt 12258 (WL Can.), affirming a sentencing decision of Block J.,
2012 ONCJ 494, 265 C.R.R. (2d) 32, [2012] O.J. No. 3563 (QL), 2012
CarswellOnt 9292 (WL Can.). Appeal dismissed.
Roger A.
Pinnock, for
the appellant.
Jill R.
Presser, Andrew Menchynski and Timothy J. Lutes, for the respondent.
Sharlene Telles‑Langdon and Kathryn Hucal, for the intervener the
Attorney General of Canada.
Nader R.
Hasan and Justin Safayeni, for the intervener the British
Columbia Civil Liberties Association.
Ingrid Grant, for the intervener the
Criminal Lawyers’ Association (Ontario).
Andrew S.
Faith and Jeffrey Haylock, for the intervener the John
Howard Society of Canada.
Greg J.
Allen and Kenneth K. Leung, for the intervener the West
Coast Prison Justice Society.
Jonathan Rudin and Emily Hill, for the intervener the
Aboriginal Legal Services of Toronto Inc.
The judgment
of the Court was delivered by
The Chief Justice —
I.
Introduction
[1]
A person charged with a crime is held in custody
pending trial unless released on bail. If found guilty at trial, an issue
arises: In calculating the sentence, how much credit should the person receive
for the time already spent in custody? A credit of one day for every day of
pre-sentence custody will almost never put the person on equal footing with
offenders released on bail, because the time spent in pre-sentence custody does
not count for purposes of parole eligibility, earned remission and statutory
release: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, at para. 26. A
one-for-one credit, in other words, results in longer incarceration for
offenders detained in pre-sentence custody than for offenders released on bail.
On account of this discrepancy and the reality that pre-sentence custody is
generally more onerous than post-sentence custody, sentencing courts have
historically given “enhanced” credit for time spent in pre-sentence custody.
[2]
Parliament revised this regime in 2009. It did
not do away with enhanced credit, but it capped that credit at one and a half
days for each day of pre-sentence custody. Parliament also — which brings us to
the issue in this case — removed a sentencing court’s discretion to give any
enhanced credit to offenders for pre-sentence custody, if they were denied bail
primarily on the basis of their criminal record. The question is whether this
law violates the right to liberty guaranteed by s. 7 of the Canadian Charter
of Rights and Freedoms .
[3]
For the reasons that follow, I conclude that the
provision infringes s. 7 of the Charter , and is not justified
under s. 1 of the Charter .
II.
Background
[4]
The respondent, Hamidreza Safarzadeh-Markhali,
was arrested and charged with several offences in November 2010. Because of the
nature of some of the charges against him, Mr. Safarzadeh-Markhali bore the
burden of justifying his release on bail. At his bail hearing, he initially
sought to show cause for his release, but later made clear that he consented to
his detention. Notwithstanding this consent, the bail judge concluded that s.
515(9.1) of the Criminal Code, R.S.C. 1985, c. C-46 , required her
to make an endorsement that Mr. Safarzadeh-Markhali’s detention was warranted
primarily because of his criminal record. Under s. 719(3.1) of the Code,
this endorsement made Mr. Safarzadeh-Markhali ineligible to receive enhanced
credit for the pre-sentence custody that followed.
[5]
The sentencing judge and the Ontario Court of
Appeal held that the removal of discretion to award enhanced credit for
pre-sentence custody in s. 719(3.1) is unconstitutional. The Crown
appeals.
[6]
Mr. Safarzadeh-Markhali has been deported to Iran.
While the appeal is moot as to him, counsel agree that the issue of whether the
relevant portion of s. 719(3.1) of the Criminal Code is constitutional
is of importance throughout Canada, and that we should decide it.
III.
The Challenged Legislation
[7]
The challenged legislation relates to the
practice of granting enhanced credit for pre-sentence custody.
[8]
Enhanced credit serves two purposes. First, it
ensures that an offender detained in pre-sentence custody — which is not
subject to parole and early release provisos — does not spend more time behind
bars than an identically situated offender released on bail. Second, it
compensates for factors such as overcrowding, inmate turnover, and labour
disputes that make pre-sentence custody more onerous than post-sentence
custody: Summers, at para. 28. For these reasons, sentencing courts have
long followed a practice of granting offenders enhanced credit — typically at a
rate of two for one, but occasionally higher or lower depending on an
offender’s particular circumstances — for time in pre-sentence custody.
[9]
Parliament sought to change this practice by
enacting the Truth in Sentencing Act, S.C. 2009, c. 29 , which amended
the Criminal Code to provide (1) a general expectation of one day of
credit for every day spent in pre-sentence custody; (2) the possibility of
enhanced credit, capped at one and a half days of credit for every day of
pre-sentence custody, “if the circumstances justify it”; (3) a cap of one
day (i.e., no enhanced credit) if the offender was denied bail primarily on the
basis of a prior conviction as certified under s. 515(9.1) , or if the offender’s
bail was revoked under s. 524(4) or (8) of the Code.
[10]
These provisions are found in ss. 719(3) and
719(3.1) of the Criminal Code :
(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) .
This appeal is concerned
only with the underlined portion of s. 719(3.1) of the Criminal Code .
[11]
The denial of enhanced credit in s. 719(3.1)
relevant here is triggered by an endorsement made by a bail judge under s.
515(9.1) of the Criminal Code :
(9.1)
Despite subsection (9), if the justice orders that the accused be detained in
custody primarily because of a previous conviction of the accused, the justice
shall state that reason, in writing, in the record.
[12]
No one disputes that a s. 515(9.1) endorsement
is, in some circumstances, unreviewable. The review provisions of the Criminal
Code, ss. 520(1) and 521(1) , do not refer to endorsements under s.
515(9.1) . In oral argument, the Crown took the position that if a reviewing
judge vacates an accused’s detention order, the endorsement is also necessarily
vacated. As a matter of statutory interpretation, it is not obvious that this
is so. In any event, the Crown concedes that a s. 515(9.1) endorsement is unreviewable
where the reviewing judge determines that an accused’s detention is justified,
even if the reviewing judge believes that the bail judge erred in making the
endorsement. Nor, it appears, would the sentencing judge have discretion to
vacate an endorsement based, for example, on a clerical error, or on a
conviction that was later reversed.
IV.
Judicial History
[13]
At his bail hearing, Mr. Safarzadeh-Markhali
consented to detention pending trial and argued that the bail judge should
therefore not make a s. 515(9.1) endorsement. The judge rejected this argument
and concluded that an endorsement was required. This made Mr.
Safarzadeh-Markhali ineligible
for enhanced credit for pre-sentence custody.
[14]
Mr. Safarzadeh-Markhali was tried on June 14 and
17, 2011, and convicted on July 28, 2011. His sentencing was initially
scheduled for December 9, 2011, but on December 1, newly retained counsel
learned of the endorsement, and brought an application asserting that s.
719(3.1) of the Criminal Code violates s. 7 of the Charter .
[15]
The sentencing judge, Block J., found the
restrictions on enhanced credit in s. 719(3.1) of the Criminal Code unconstitutional,
and credited Mr. Safarzadeh-Markhali with 31 months of pre-sentence custody
based on a rate of one and a half for one, to be deducted from his sentence of
six years (2012 ONCJ 494, 265 C.R.R. (2d) 32). He held that the purposes of the
statute that added s. 719(3.1) to the Code, the Truth in Sentencing
Act , are to repress manipulation of pre-sentence custody to achieve a lower
sentence than would otherwise be served, and to provide transparency in this
aspect of the sentencing process. He went on to hold that s. 719(3.1) : (1)
problematically binds the discretion of the sentencing judge; (2) has a
disproportionate effect on equally placed offenders; (3) creates arbitrariness
because the deprivation of liberty effected has no rational connection to
either of the statute’s stated aims; (4) leads to double-counting and double
penalization; (5) improperly lowers the burden of proof for sentencing; and (6)
has the oblique purpose of increasing sentences outside the sentencing process.
[16]
The Court of Appeal (Rosenberg, Watt and Strathy
JJ.A. (now Strathy C.J.O.)) agreed that the challenged portion of s. 719(3.1)
of the Criminal Code is inconsistent with s. 7 of the Charter (2014
ONCA 627, 122 O.R. (3d) 97). While it is open to Parliament to set markers to
guide judges in sentencing, Strathy J.A. concluded that restricting credit for
time served to a one-for-one ratio in this manner infringes s. 7 , because it
deprives affected persons of liberty in a manner inconsistent with the
principle of proportionality in sentencing. This principle, which Strathy J.A.
identified as a principle of fundamental justice under s. 7 of the Charter ,
prevents Parliament from making sentencing contingent on factors unrelated to
the determination of a fit sentence. The challenged provision offends that
principle because it subjects identically placed offenders to periods of
incarceration of varying lengths for irrelevant reasons. Increasing the
custodial terms of repeat offenders may be an appropriate objective. Strathy
J.A. found, however, that Parliament’s attempt to give effect to that objective
through ss. 515(9.1) and 719(3.1) of the Criminal Code misses the mark,
and results in unfairness, discrimination, and unjust sentences.
[17]
The Court of Appeal held that the breach of s. 7
is not justified as a reasonable measure under s. 1 of the Charter . It
held that the objectives of the denial of enhanced credit — which, at this
stage, Strathy J.A. articulated as preventing manipulation of credit for
pre-sentence custody and enhancing public safety by increasing the likelihood
that repeat offenders and those who breach their bail conditions will serve
part of their sentence in post-sentence custody with access to rehabilitative
programs unavailable in remand centres — are pressing and substantial. However,
the denial of enhanced credit for pre-sentence custody in s. 719(3.1) of the Criminal
Code is not rationally connected to these purposes, because it draws
distinctions between offenders with criminal records on arbitrary grounds —
whether they seek bail and whether, if denied bail, they receive an endorsement
under s. 515(9.1) of the Criminal Code . Nor does the provision minimally
impair the right to liberty, since Parliament could have achieved its
objectives through less intrusive measures. Finally, the benefit secured by the
provision — keeping some offenders in jail longer and thus increasing their
access to rehabilitative programs — is outweighed by the detriment flowing from
an artificial distinction that undermines public confidence in the justice
system. The court therefore dismissed the Crown’s appeal and concluded that the
challenged portion of s. 719(3.1) is unconstitutional and of no force and
effect.
V.
Analysis
[18]
The central issue on this appeal is whether s.
719(3.1) of the Criminal Code infringes s. 7 of the Charter . If
it does, we must ask whether the limitation is justified under s. 1 of the Charter .
[19]
Section 7 of the Charter provides the
following:
7. 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.
[20]
It is clear that s. 719(3.1) limits liberty. Its
effect is to require offenders who come within its ambit to serve more time in
prison than they would have otherwise. The only issue under s. 7 is whether
this deprivation of liberty comports with the principles of fundamental
justice.
[21]
The Court of Appeal based its analysis on the
principle of proportionality in the sentencing process, which it found to be a
principle of fundamental justice. The Crown argues that, while proportionality
is an important principle of sentencing, it should not be treated as a
principle of fundamental justice under s. 7 . I agree with the Crown.
Proportionality in the sentencing process, as distinct from the well-accepted
principle of gross disproportionality under s. 7 , is not a principle of
fundamental justice.
[22]
However, I conclude that the portion of the Truth
in Sentencing Act challenged in this appeal — the denial of any enhanced
credit for pre-sentence custody to persons to whom bail is denied primarily
because of a prior conviction — violates s. 7 of the Charter for another
reason: it is overbroad. Laws that curtail liberty in a way that is arbitrary,
overbroad or grossly disproportionate do not conform to the principles of
fundamental justice: Canada (Attorney General) v. Bedford, 2013 SCC 72,
[2013] 3 S.C.R. 1101, at para. 105. Mr. Safarzadeh-Markhali contends that the
challenged provision violates all three of these principles. For the reasons
that follow, I conclude that the challenged law is unconstitutionally
overbroad, because its effect is to deprive some persons of liberty for reasons
unrelated to its purpose. This conclusion makes it unnecessary to address
whether the law is arbitrary or grossly disproportionate.
[23]
The first step in the overbreadth analysis is to
ascertain the purpose of the law. I turn to that now.
A.
The Purpose of Section 719(3.1)
[24]
Whether a law is overbroad within the meaning of
s. 7 turns on the relationship between the law’s purpose and its effect: R.
v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485, at para. 24. It is
critically important, therefore, to identify the purpose of the challenged law
at the outset of the s. 7 inquiry.
[25]
Moriarity
summarizes the considerations that guide the task of properly characterizing
Parliament’s purpose in a s. 7 analysis into overbreadth.
[26]
First, the law’s purpose is distinct from the
means used to achieve that purpose: Moriarity, at para. 27. A law’s
means may be helpful in determining its objective, but the two must be treated
separately.
[27]
Second, the law’s purpose should be
characterized at the appropriate level of generality, which “resides between
the statement of an ‘animating social value’ — which is too general — and a
narrow articulation” that amounts to a virtual repetition of the challenged
provision, divorced from its context: Moriarity, at para. 28.
[28]
Third, the statement of purpose should be both
precise and succinct: Moriarity, at para. 29. Precision requires that
courts focus on the purpose of the particular statutory provision subject to
constitutional challenge: ibid.; see also RJR-MacDonald Inc. v.
Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 144.
[29]
Fourth, the analysis is not concerned with the
appropriateness of the legislative purpose. The court must take the legislative
objective “at face value” and assume that it is appropriate and lawful: Moriarity,
at para. 30. The appropriateness of a legislative objective may be relevant to
its constitutionality under other Charter provisions. But it has no
place in the s. 7 analysis of overbreadth.
[30]
With these propositions in mind, I turn to the
task at hand: to formulate a statement of purpose for s. 719(3.1) ’s denial of
enhanced credit to persons denied bail primarily because of a prior conviction.
[31]
To determine a law’s purpose for a s. 7
overbreadth analysis, courts look to (1) statements of purpose in the
legislation, if any; (2) the text, context, and scheme of the legislation; and
(3) extrinsic evidence such as legislative history and evolution: Moriarity,
at para. 31.
[32]
The first source of purpose is statements of
purpose in the legislation. The Truth in Sentencing Act does not contain
explicit statements of legislative purpose. The title of the statute suggests
that the evil to which it is directed is opaqueness in the sentencing process.
Beyond this, however, the statute is silent as to its purposes. More to the
point, it contains no explicit statement of the specific purpose of denying
enhanced credit to offenders denied bail primarily on the basis of a prior
conviction.
[33]
I turn next to the text, context and scheme of
the legislation. These provide the contextual matrix in which the challenged
portion of s. 719(3.1) ’s denial of enhanced credit is embedded.
[34]
Part of the contextual matrix is this Court’s
decision in Summers, which considered, as a matter of statutory
interpretation, the one-and-a-half-for-one cap on enhanced credit for
pre-sentence custody. The Court there said that the broad purposes of the
legislative scheme were to enhance public confidence in the justice system and
make the process of granting enhanced credit more transparent: Summers,
at paras. 52-53. Summers suggests a broad over-arching purpose for the
1.5:1 limit on enhanced credit for pre-sentence custody — enhancing confidence
in the justice system. This purpose is pitched at a high level of generality
and underlies the other objectives of the scheme and the challenged provision.
In the words of Moriarity, enhancing confidence in the justice system is
more of an “animating social value” than a statement of purpose.
[35]
Turning to the text of the provision, s.
515(9.1) of the Criminal Code requires a bail justice to make a written
endorsement if the accused is detained “primarily because of a previous
conviction”. The language in this section is very broad. A lengthy record is
not necessary, nor is a particular type of conviction required. Any previous
conviction could theoretically lead to an endorsement. Section 515(9.1) tells
justices only that they must make the endorsement if detention is ordered
“primarily” for this reason. In short, the breadth of the section does not provide
much guidance in determining Parliament’s purpose, beyond indicating that
Parliament intended to target accused persons with criminal records.
[36]
This brings us to the third source of
legislative purpose — extrinsic evidence of legislative history and evolution.
We have little evidence of the legislative evolution of the challenged
provision. However, we do have the statements of the Minister who introduced
it. Statements of purpose in the legislative record may be rhetorical and
imprecise. Yet providing information and explanations of proposed legislation
is an important ministerial responsibility, and courts rightly look to it in
determining the purpose of a challenged provision.
[37]
In presenting the Truth in Sentencing Act
to Parliament and the House of Commons Standing Committee on Justice and Human
Rights, the Minister of Justice explained that denial of enhanced credit was
aimed at promoting public safety and public confidence in the justice system,
by imposing longer sentences on violent and repeat offenders and increasing
their exposure to rehabilitative programming. He said:
The
practice of awarding generous credit erodes public confidence in the
integrity of the justice system. It also undermines the commitment of the
government to enhance the safety and security of Canadians by keeping violent
or repeat offenders in custody for longer periods. [Emphasis added.]
(House
of Commons Debates, vol. 144, No. 41, 2nd Sess., 40th Parl., April 20, 2009
(“Debates”), at p. 2418)
The Minister’s reference
to “violent or repeat offenders” suggests that the challenged provision is
targeted at two groups: (1) dangerous persons, who have committed crimes of
violence or threatened violence; and (2) chronic offenders, whether convicted
of violent crimes or not.
[38]
The Minister also linked longer periods in
custody to rehabilitation:
As
a result of [the challenged provision], a greater number of offenders would now
serve a federal sentence of two or more years, and there will be an increased
number of federal offenders spending time in federal custody.
This
time [in] the federal system will present the opportunity for longer-term
programming that may have a positive effect on the offender. [Emphasis
added.]
(Standing
Committee on Justice and Human Rights, Evidence, No. 20, 2nd Sess., 40th
Parl., May 6, 2009 (“Evidence”), at pp. 11-12)
[39]
The Minister referred to other goals. One was
the goal of adequate or fit punishment, in a retributive sense. On this, he
said:
Not
only does [enhanced credit] deprive offenders of the prison programs that might
help to keep them out of jail in the future, it also fails to punish them
adequately for the deeds that led to their convictions in the first place.
[Emphasis added.]
(Debates,
at p. 2418)
[40]
The Minister coupled the desire for adequate
punishment with the idea that enhanced credit gives repeat offenders a
“benefit” they do not deserve: “You shouldn’t get any benefit for being
detained if there are legitimate reasons for you not to make bail” (Evidence,
at p. 15). Although the Minister erred in characterizing enhanced credit as a
“benefit” (see Summers, at paras. 23-27), it is clear that he wanted to
ensure “adequate” periods of incarceration for repeat offenders — a “final
sentence [that] reflects the seriousness of the crime”: Evidence, at p.
11.
[41]
Do the Minister’s comments on achieving adequate
sentences for repeat offenders reflect the central purpose of denying any
enhanced credit for pre-sentence custody to offenders denied bail because of a
prior conviction? I think not. Those comments must be considered in context.
The weight of the legislative record suggests that the challenged provision was
geared towards promoting public safety and security, not retribution. Achieving
adequate punishment is not, in the s. 7 analysis, a purpose of the challenged
provision.
[42]
Finally, the Minister referred to the goals of
making the system more transparent and preventing offenders from manipulating
the system: see e.g. Debates, at p. 2417. Once again, it is difficult to
see these goals as the purpose of a total denial of enhanced credit for
pre-sentence custody to persons denied bail primarily because of a prior
conviction.
[43]
The challenged provision — the denial of
enhanced credit to repeat offenders who receive a s. 515(9.1) endorsement — is
difficult to relate to a desire to make the system clearer or easier to
understand. While requiring a bail judge to make a written notation that the
primary basis for denying bail is a prior conviction may enhance transparency
in the bail system, it cannot be said that the actual deprivation of liberty
imposed by s. 719(3.1) seeks to further transparency.
[44]
Similarly, the challenged provision, by its
words and how it operates, is not directed at preventing offenders’
manipulation of the system. The Minister expressed concern that under the old
system, offenders were prolonging pre-sentence custody to take advantage of
enhanced credit that would shorten their total time in custody. While this goal
is reflected in the one-and-a-half-for-one cap on enhanced credit, which
removes the incentive to extend the period of pre-sentence custody, it is not
related to the challenged provision.
[45]
In summary, examined in the light of Moriarity,
the text, context and scheme of the legislation, coupled with the
Minister’s statements of purpose, lead me to the following conclusions.
[46]
First, the animating social value behind
the denial of enhanced credit for pre-sentence custody in s. 719(3.1) is
enhancing public confidence in the justice system.
[47]
Second, the legislative purpose of the
total denial of enhanced credit for pre-sentence custody to offenders who are
denied bail because of a prior conviction is to enhance public safety and
security by increasing violent and chronic offenders’ access to rehabilitation
programs. To be sure, the Minister referred to other legislative purposes —
providing adequate punishment, increasing transparency in the pre-sentence
credit system, and reducing manipulation. But these are peripheral, for the
reasons discussed above.
[48]
Third, the means for achieving the
purpose of enhancing public safety and security is the challenged provision
itself — the denial of enhanced credit for pre-sentence custody to persons
refused bail primarily on the basis of their existing criminal record.
[49]
Finally, the effect of the provision is
to impose longer periods of custody on all persons who receive an endorsement
indicating they were denied bail primarily on the basis of a previous
conviction.
B.
Is the Law Overbroad?
[50]
It is a principle of fundamental justice that a
law that deprives a person of life, liberty, or security of the person must not
do so in a way that is overbroad. In other words, the law must not go further
than reasonably necessary to achieve its legislative goals: Bedford, at
para. 101.
[51]
The Court explained the substance of the
principle against overbreadth in Bedford, at paras. 112-13:
Overbreadth
deals with a law that is so broad in scope that it includes some conduct
that bears no relation to its purpose. In this
sense, the law is arbitrary in part. At its core, overbreadth addresses
the situation where there is no rational connection between the purposes of the
law and some, but not all, of its impacts. . . .
Overbreadth
allows courts to recognize that the law is rational in some cases, but that it
overreaches in its effect in others. Despite this recognition of the scope of
the law as a whole, the focus remains on the individual and whether the effect
on the individual is rationally connected to the law’s purpose. For example,
where a law is drawn broadly and targets some conduct that bears no relation to
its purpose in order to make enforcement more practical, there is still no
connection between the purpose of the law and its effect on the specific
individual. Enforcement practicality may be a justification for an
overbroad law, to be analyzed under s. 1 of the Charter . [Underlining
added.]
[52]
The denial of enhanced credit for pre-sentence
custody to offenders who are denied bail primarily because of a prior
conviction is overbroad because it catches people in ways that have nothing to
do with enhancing public safety and security.
[53]
First, the provision’s ambit captures people it
was not intended to capture: offenders who do not pose a threat to public
safety or security. Section 515(9.1) is broadly worded. It catches any person
denied bail primarily for a criminal record, without specifying or even broadly
identifying the nature or number of offences that would warrant a s. 515(9.1)
endorsement. The section may therefore ensnare persons whose imprisonment does
not advance the purpose of the law. For example, a person with two or three
convictions for failing to appear in court might be subject to a s. 515(9.1)
endorsement, even though he or she did not pose any real threat to public
safety or security. And even if such a person receives greater access to
rehabilitative programming and benefits from it, the consequence is not
necessarily to improve public safety and security. In short, a s. 515(9.1)
endorsement is an inexact proxy for the danger that an offender poses to public
safety and security. The Crown says the law casts the net broadly because
targeting all offenders with a criminal record is a more practical option than
attempting to identify only offenders who pose a risk to public safety and
security. But practicality is no answer to a charge of overbreadth under s. 7 : Bedford,
at para. 113.
[54]
Second, regardless of the types of offenders the
challenged provision was meant to capture, the provision suffers from
overbreadth because, as the intervener the Criminal Lawyers’ Association
(Ontario) notes, the limited availability of judicial review means that persons
wrongly tagged with an endorsement will be without recourse to have the error
remedied. There is dispute about precisely when if ever review for an
endorsement is available. But the Crown concedes that if the reviewing judge
finds that the detention order was properly made, he or she is powerless to
vacate an endorsement and that the sentencing judge has no choice under the
challenged provision but to give effect to an endorsement in computing an
offender’s sentence. This absence of review and discretion renders the
challenged provision overbroad for at least two categories of individuals: (1)
persons who erroneously received the endorsement because their detention is not
warranted primarily because of their criminal record, and (2) persons who,
during the period between the bail hearing and sentencing, successfully appeal
the conviction that drew the endorsement. In both cases, the effect of the
provision is to strip persons of liberty even though their detention does not
obviously advance public safety and security.
[55]
I conclude that the challenged provision seeks
to advance the objective of enhancing public safety and security in a manner
that is overbroad.
C.
Is the Infringement Justified Under Section 1 of
the Charter ?
[56]
The Crown contends that if the challenged
provision violates s. 7 of the Charter , the infringement is justified
under s. 1 . I cannot accept this submission.
[57]
It is difficult, but not impossible, to justify
a s. 7 violation under s. 1. Laws that deprive individuals of liberty contrary
to a principle of fundamental justice are not easily upheld. However, a law may
be saved under s. 1 if the state can point to public goods or competing social
interests that are themselves protected by the Charter : Carter v.
Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 95.
Courts may accord deference to legislatures under s. 1 for breaches of s. 7
where, for example, the law represents a “complex regulatory response” to a
social problem: Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC
37, [2009] 2 S.C.R. 567, at para. 37.
[58]
An infringement of the Charter is
justified under s. 1 where the law has a “pressing and substantial object and .
. . the means chosen are proportional to that object”: Carter, at para.
94. A law is proportionate where the means adopted are rationally connected to
the law’s objective, minimally impairing of the right in question, and the
law’s salutary effects outweigh its deleterious effects: R. v. Oakes,
[1986] 1 S.C.R. 103.
[59]
The main objective of the challenged provision
in this case is, as noted, enhancing public safety and security with longer and
more rehabilitative sentences for violent and chronic offenders. This objective
is pressing and substantial.
[60]
The real issue is whether the means chosen here
are proportionate to this objective. For reasons much the same as those
discussed in the overbreadth analysis, I conclude that this has not been
established.
[61]
The challenged provision is rationally connected
to its purpose of enhancing public safety and security. The denial of enhanced
credit gives rise to longer periods of custody. It is therefore likely to
increase the opportunities of some offenders to access rehabilitative programs.
[62]
However, the law is neither minimally impairing
nor proportionate in the balance it achieves between salutary and deleterious
effects.
[63]
To establish minimal impairment, the Crown must
show the absence of less drastic means of achieving the objective in a “real
and substantial manner”: Carter, at para. 102. The Crown has not
discharged that burden. Alternative and more reasonable means of achieving its
purposes were open to Parliament. Strathy J.A. provided one example — a law
requiring the sentencing judge to consider whether to grant enhanced credit for
pre-sentence custody based on (i) the offender’s criminal record, (ii) the
availability of rehabilitative programs and the desirability of giving the
offender access to those programs, and (iii) whether the offender was
responsible for prolonging his or her time in pre-sentence custody. Such a
regime would achieve the goal of promoting public safety and security through
rehabilitation, without catching chronic or other offenders who pose no risk to
public safety.
[64]
The Crown argues that the provision is
reasonably tailored to its objective because it “applies to a relatively narrow
class of offenders, focusing on the most serious recidivists”: A.F., at para.
62. But the law plainly does the opposite: it makes any person with a criminal
record, even for missed court dates, a potential target for restriction of
enhanced credit. In my view, the challenged provision is not minimally
impairing of the right to liberty.
[65]
Finally, I agree with Court of Appeal that the
Crown has failed to establish benefits that outweigh the detrimental effect of
the challenged provision on the right to liberty. The benefit to public safety
by increasing access to rehabilitation programs is not trivial. But the law’s
overbreadth means that offenders who have neither committed violent offences
nor present a risk to public safety will be unnecessarily deprived of liberty.
The Crown has failed to meet that high bar required to justify such a
deprivation.
[66]
I conclude that the challenged provision is not
saved under s. 1.
D.
The Court of Appeal’s Reliance on
Proportionality of Process
[67]
The Court of Appeal held that proportionality in
the sentencing process is a principle of fundamental justice under s. 7 of the Charter ,
and that the denial of enhanced credit for pre-sentence custody in s. 719(3.1)
offends that principle. The court erred in doing so. Proportionality in the
sentencing process is not a principle of fundamental justice under s. 7 .
[68]
The content of the principle the Court of Appeal
recognized is not entirely clear. Strathy J.A. stated that the principle of
proportionality already finds expression in s. 718.1 of the Criminal Code :
“A sentence must be proportionate to the gravity of the offence and the degree
of responsibility of the offender.” He also noted that the principle of
proportionality “is informed by other sentencing principles in the Code” (para.
77), including the parity principle, found at s. 718.2 (b): “a sentence should
be similar to sentences imposed on similar offenders for similar offences
committed in similar circumstances”. These statements suggest that the Court of
Appeal viewed proportionality in sentencing as a comparative concept, concerned
with the relationship between the seriousness of the offence committed and the
sentence imposed.
[69]
At the same time, Strathy J.A. emphasized that
proportionality is about the sentencing process, not its result. As he put it, proportionality
in sentencing entitles an offender “to a process directed at crafting a
just sentence” and “prevents Parliament from making sentencing contingent on
factors unrelated to the determination of a fit sentence”: paras. 82 (emphasis
in original) and 85. Proportionality in this sense is more concerned with what
considerations properly belong in the sentencing process, and less with the
magnitude of the sentence ultimately imposed.
[70]
Proportionality in the sense articulated at s.
718.1 of the Code — that a sentence be proportionate to the gravity of
an offence and an offender’s degree of responsibility — is a fundamental
principle of sentencing. As LeBel J. stated for a majority of the Court in R.
v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37, proportionality
is “the sine qua non of a just sanction”. It is grounded in elemental
notions of justice and fairness, and is indispensable to the public’s
confidence in the justice system. LeBel J. went so far as to opine that
“proportionality in sentencing could aptly be described as a principle
of fundamental justice under s. 7 of the Charter ”: para. 36 (emphasis
added); see also R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at
para. 21. LeBel J. also, however, recognized that the “constitutional
dimension” of proportionality in sentencing is the prohibition of grossly
disproportionate sentences in s. 12 of the Charter : para. 36.
[71]
To say that proportionality is a fundamental
principle of sentencing is not to say that proportionality in the sentencing
process is a principle of fundamental justice for the purpose of determining
whether a deprivation of liberty violates s. 7 of the Charter ,
notwithstanding the obiter comment of LeBel J. in Ipeelee. The
principles and purposes for determining a fit sentence, enumerated in s. 718 of
the Criminal Code and provisions that follow — including the fundamental
principle of proportionality in s. 718.1 — do not have constitutional status.
Parliament is entitled to modify and abrogate them as it sees fit, subject only
to s. 12 of the Charter . Parliament can limit a sentencing judge’s
ability to impose a fit sentence, but it cannot require a sentencing judge to
impose grossly disproportionate punishment. It follows, then, that the Court of
Appeal erred in declaring proportionality in the sentencing process to be a
principle of fundamental justice under s. 7 .
[72]
This conclusion accords with precedent. In R.
v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571, at para. 160, a majority
of this Court squarely rejected the proposition that there is “a principle of
fundamental justice embedded in s. 7 that would give rise to a constitutional
remedy against a punishment that does not infringe s. 12 ”. The standard
imposed by s. 7 with respect to sentencing is the same as it is under s. 12 : gross
disproportionality.
[73]
I see no reason to depart from that holding
here. Proportionality, as expressed in s. 718.1 of the Criminal Code , is
a foundational principle of sentencing. But the constitutional standard against
which punishment is measured is and remains gross disproportionality.
Proportionality in the sentencing process is not a principle of fundamental
justice under s. 7 .
VI.
Conclusion
[74]
I would dismiss the Crown’s appeal. The
challenged portion of s. 719(3.1) violates s. 7 of the Charter , and the
Crown has not justified that infringement under s. 1 . It is therefore declared
to be of no force and effect under s. 52 of the Constitution Act, 1982 .
Appeal
dismissed.
Solicitor
for the appellant: Attorney General of Ontario, Toronto.
Solicitors
for the respondent: Presser Barristers, Toronto; Timothy J. Lutes,
Toronto.
Solicitor
for the intervener the Attorney General of Canada: Attorney General of
Canada, Winnipeg.
Solicitors
for the intervener the British Columbia Civil Liberties
Association: Stockwoods, Toronto.
Solicitors
for the intervener the Criminal Lawyers’ Association (Ontario): Russel
Silverstein & Associate, Toronto.
Solicitors
for the intervener the John Howard Society of Canada: Polley Faith,
Toronto.
Solicitors
for the intervener the West Coast Prison Justice Society: Hunter
Litigation Chambers, Vancouver.
Solicitor for the
intervener the Aboriginal Legal Services of Toronto Inc.: Aboriginal Legal
Services of Toronto, Toronto.