Sentencing Courts Have Given Enhanced Credit For Time Spent On Pre Custody

1411 Words May 31st, 2016 6 Pages
Facts
In the past, sentencing courts have given enhanced credit for time-spent in pre-custody, which is usually at a rate of two days for every day of detention, however, “enhanced credit is not available if the person was denied bail primarily because of a prior conviction” (R. v. Safarzadeh‑Markhali, 2016 SCC 14 (CanLII)). In November 2010, Hamidreza Safarzadeh-Markhali “was arrested and charged with several offences” (R. v. Safarzadeh‑Markhali, 2016 SCC 14 (CanLII), par. 4). The bail judge made an endorsement for Mr. Safarzadeh-Markhali on the basis of his criminal record, and therefore this made him unentitled to receive enhanced credit for the pre-custody that would come after (R. v. Safarzadeh‑Markhali, 2016 SCC 14 (CanLII), par. 4);
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124).
Issues
Does s. 719(3.1) of the Criminal Code infringes s. 7 of the Charter, and if s. 719(3.1) does infringe s. 7 of the Charter; then is the limitation justified under s. 1 of the Charter (R. v. Safarzadeh‑Markhali, 2016 SCC 14 (CanLII), par. 22)?
Decision
The SCC decided that the appeal be dismissed, since the challenged portion of s. 719(3.1) violates s. 7 of the Charter, however, the Crown did not justify that infringement under s. 1 (R. v. Safarzadeh‑Markhali, 2016 SCC 14 (CanLII), par. 74). Therefore, it was “declared to be of no force and effect under s. 52 of the Constitution Act, 1982” and the appeal was dismissed(R. v. Safarzadeh‑Markhali, 2016 SCC 14 (CanLII), par. 74).
Reasons for Decision To begin with, the court finds that the Truth Sentencing Act of violates s. 7 of the Charter, for the reason of it being overboard “because its effect is to deprive some persons of liberty for reasons unrelated to its purpose” (R. v. Safarzadeh‑Markhali, 2016 SCC 14 (CanLII), par. 22). The law’s purpose is to be precise and succinct, a level of generality, and for the laws mean to be helpful in determining the objective (R. v. Safarzadeh‑Markhali, 2016 SCC 14 (CanLII), par. 26-29). Hence, the denial of enhanced credit is to promote public safety and concern, but this is an unfair violation of the s. 7 since the law is overboard. As stated by the court, it warrants a person an s. 515(9.1) endorsement without identifying the nature of
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