In a recent decision, R. v. Safarzadeh-Markhali, 2014 ONCA 627, the Court of Appeal for Ontario invalidated yet another piece of the federal government “tough on crime” legislative programme, namely subs. 719(3.1) of the Criminal Code, which has the effect of preventing judges from granting enhanced credit for pre-sentence imprisonment to offenders who are not released on bail primarily due to past convictions. (A separate provision of the Criminal Code requires a judge who denies bail to an accused based on his or her criminal history to produce an endorsement to this effect.) Mr. Safarzadeh-Markhali argued that this rule infringed s. 7 of the Charter because it arbitrarily deprived him of liberty. The trial judge agreed, and the Crown appealed, arguing that a mere lack of proportionality did not infringe s. 7, that denials of enhanced credit due to past convictions were not grossly disproportionate, and that in any event they were justified under s. 1 of the Charter.
Writing for the unanimous Court of Appeal, Justice Strathy (as he was at the time of the hearing ― he is now the Chief Justice of Ontario), started by observing that the purposes of the impugned provision and, more generally, of the Truth in Sentencing Act (TISA) of which it was a part were to limit the credit which offenders received for pre-sentence custody, partly to punish them more harshly and partly to remove a perceived incentive to prolong proceedings so as to increase the credit to which they would be entitled, and also to make the process of granting credit more transparent. Justice Strathy also discussed the Supreme Court’s decision in R. v. Summers, 2014 SCC 26 (which I blogged about here), where the Supreme Court held that the TISA had to be interpreted in accordance with the general principles and purposes of sentencing as set out in the Criminal Code, including proportionality (between the offence and the sentence) and parity (of sentences between similarly situated offenders); the Supreme Court specifically referred to the injustice of sentences for similar offences varying depending on whether an offender had been able to obtain bail which, in turn, is often a function of criteria unrelated to the purposes of sentencing.
Turning to the s. 7 analysis, Justice Strathy finds it obvious that subs. 719(3.1) deprives those subject to it of liberty, since it results in longer terms of incarceration. The Crown, remarkably, purported not to concede that point, but the real issue is whether the deprivation of liberty is in accordance with the principles of fundamental justice. The relevant one, he says, is “proportionality in sentencing” (par. 73). It is, he argues,
understood and endorsed by all Canadians and is applied in our courts on a daily basis. … Canadians understand that a sentence must be fair, in all its aspects. The punishment must fit the offence and must fit the offender. (Par. 73-74)
Furthermore, the principle of proportionality in sentencing includes that of parity, the idea that similarly situated offenders should receive similar punishment.
The Crown argued that the relevant principle is not proportionality tout court, but “gross disproportionality.” Indeed, the Supreme Court seemed to suggest as much in R. v. Malmo‑Levine; R. v. Caine, 2003 SCC 74,  3 S.C.R. 571. But Justice Strathy finds that this case is distinguishable, the difference being one between process and result:
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. (Par. 82)
What this means is that
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. (Par. 85)
Justice Strathy concludes that the denial of enhanced credit to those offenders whose criminal history prevented them from being released on bail infringes the principle of proportionality in sentencing, in that it makes the length of an offender’s imprisonment contingent on factors not relevant at a sentencing stage. He points out that even of two accused persons with identical criminal histories, one may be granted bail while the other will be denied it if the former has stronger community ties or better sureties than the latter. Alternatively, an accused who doesn’t apply for bail in the first place (including because he knows that he couldn’t get it because of his criminal history!) would not actually be denied bail based on his criminal history, and would thus be entitled to enhanced credit. As Justice Strathy points out,
[o]ne 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 greater proportion of their sentence being served in custody. (Par. 95)
In short, subs. 719(3.1)
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. (Par. 96)
This interference with the sentencing process infringes s .7 of the Charter. While Parliament can choose to impose harsher sentences on repeat offenders, it has gone about it the wrong way:
like many attempts to replace the scalpel of discretion with a broadsword, [subs. 719(3.1)] misses the mark and results in unfairness, discrimination and ultimately unjust sentences. (Par. 101)
As for justifying this infringement of s. 7 under s. 1, Justice Strathy holds that it is not rationally connected to the objective of preventing manipulation of the pre-trial process, since it will prompt accused persons to avoid seeking bail, thus engaging in “the very manipulation the TISA was designed to prevent” (par. 114). Nor is it minimally impairing of offenders’ right to liberty; nor do its (dubious) benefits exceed its real harms.
Needless to say, I like this result. And I think it reflects sound legal principles. As Justice Strathy shows, the denial of enhanced credit to offenders on the basis of a denial of bail results in similarly situated people being punished differently for reasons that have nothing to do with their culpability or the principles of sentencing more broadly, and if that’s not contrary to “principles of fundamental justice”, then it’s hard to imagine what is. At the same time, I wonder about the specifics of Justice Strathy’s reasoning. This is a criticism not of him (or his colleagues on the panel), but of the Supreme Court’s jurisprudence which forced him to engage in some legal contortionism.
It seems to me that the best description of the substantive constitutional problem with subs. 719(3.1) is actually that it is a breach of equality under the law, of the principle that like cases ought to be treated alike. Someone unfamiliar with the Supreme Court’s Charter jurisprudence might think that the natural way of addressing this problem is by invoking s. 15(1) of the Charter, which after all provides that “[e]very individual is equal before and under the law.” But since the Supreme Court has read s. 15(1) as only a protection against discrimination on a fairly narrow category of prohibited grounds, that straightforward argument is foreclosed, and the courts have to import equality under the law through the back door of s. 7 (which limits its applicability to situations where life, liberty, or security of the person are stake).
And then, in the s. 7 jurisprudence, there this concept of “gross disproportionality,” eerily reminiscent of the now-defunct “patent unreasonableness” in administrative law. To get out of the difficulty posed by the fact that some administrative decisions were deeply disturbing without quite appearing “patently unreasonable,” the Supreme Court tried introducing the concept of “reasonableness simpliciter” ― before realizing that the distinction between the two sorts of (un)reasonableness was conceptually bizarre and practically unworkable.
Justice Strathy seems to be trying to do something similar here, being boxed in by the wording of “gross disproportionality” but unwilling to leave an arbitrary law standing. But I’m not persuaded by his distinction between the process and result in sentencing. Does it even make sense to speak of proportionality in relation to process? (In civil litigation, a procedure is said to be proportional or not depending, roughly, on whether the time and resources it requires are proportional to its benefit for the truth-finding process, but here we’re not speaking of the same thing at all ― we’re not asking about extra hearings or something like that.) The distinction seems to be a workaround that allows Justice Strathy to escape an unfortunate but binding precedent, but it only adds to the conceptual complexity of an already messy area of the law.
Given its track record (and its uncompromising position in this case), we can expect the federal government to appeal. And, given in its growing track record in “tough on crime” cases, we can expect the Supreme Court to reject this appeal. I certainly hope it will do so. But I also hope that it will use the opportunity for some clarification of the law.
UPDATE: Michael Spratt comments on the Court of Appeal’s decision ― and points out that there is more of the same to come from the government.