Michael Dyck | Criminal Law

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Supreme Court of Canada Series: R. v. Safarzadeh-Markhali (Pre-Sentence Custody Credit)

Michael Dyck

On April 15, 2016, the Supreme Court of Canada released a decision on credit that judges can give when a person has spent time in custody before he/she has plead guilty in R. v. Safarzadeh-Markhali, 2016 SCC 14. Most people would agree that if you spend time in jail before you plead guilty, that the time spent could be used towards a sentence when you plead guilty. In most cases, sentencing judges do give credit for time already served or time in custody, commonly called "TIC" by defence lawyers. However, the Criminal Code does not requires judges to give credit for time served:

Section 719(1):  A sentence commences when it is imposed, except where a relevant enactment otherwise provides.

Where this issue becomes controversial is what amount of credit should a person get for the time in custody. A day for a day? Double credit? A day and a half for a day? A few years ago, it was fairly common for judges to give people double credit for the time spent in custody. That changed when the government enacted the Truth in Sentencing Act in 2009. The new law limited the amount of credit a judge could give a person for time served to a day for a day but enhanced credit of a day and a half for a day could be given "if the circumstances justify it."

The Truth in Sentencing Act has been challenged at the Supreme Court before. In 2014, it released its decision in R. v. Summers, 2014 SCC 26 which held that losing out on earned remission or parole was a circumstance that could justify enhanced credit. The logic is that once a sentence is imposed, prisoners are entitled to earned remission in provincial jail (early release for good behaviour) and parole in federal prisons (reintegration to the community).

For example, Aaron and Brock are both charged with theft under $5,000, both are detained in custody, and both want to plead guilty. Aaron pleads guilty at his first appearance in bail court and receives a sentence of 30 days custody. As long as he of good behaviour in custody, he would be released after he serves two thirds of his sentence, or 20 days. Brock's defence lawyer arranges the earliest sentencing date he can, but they can only book a time 30 days later. At that point, Brock is sentenced to 30 days of time served. On paper, both Aaron and Brock's sentences indicate 30 days of custody, but Aaron only spent 20 days in jail whereas Brock spent 30. Enhanced credit of a day and a half for a day is designed to level the playing field to take into account that while you are waiting to be sentenced in custody you are not eligible for earned remission or parole.

The Truth in Sentencing Act also prevented some individuals from EVER getting enhanced credit. If you were on a previous form of release for another charge or if a judge denied you bail primarily because of your criminal record, you were then disentitled to receive enhanced credit. Once again, this part of the act created unfairness. If you were charged with robbery and released on bail and then re-arrested for a second robbery, you were disentitled to enhanced credit, even if the second robbery charge was dropped because you were not actually involved at all.

Very recently, the Manitoba Court of Appeal heard two cases together from Manitoba about these two scenarios where a person could be denied enhanced credit in R. v. Kovich (GW), 2016 MBCA 19. You can check out the previous decisions in these cases as well: 

The court decided that this section of the Truth in Sentencing Act is unconstitutional and deleted those portions from the law at paragraph 162:

Viewed in that manner, I have concluded that the two exemptions constitute an unjustifiable infringement of section 7 of the Charter for two reasons.  First, the exemptions subject identically-placed offenders to different periods of imprisonment (depending on whether they are able to obtain bail) for reasons that are not relevant to the determination of a proportionate sentence, thereby interfering with the principle of proportionality in the sentencing process, which is a principle of fundamental justice.  Second, the exemptions go too far in that they overreach in their effect; they target those who commit crimes while out on bail or violent offenders but in reality, they capture offenders who are unable to get bail because of socio-economic reasons, not because of their conduct.

However, the Manitoba Court of Appeal only has jurisdiction over this province. The Supreme Court has jurisdiction over the entire country and it decided in R. v. Safarzadeh-Markhali that one of these exceptions was unconstitutional - individuals who are denied bail because of their record. This case is also important because it is just another example of how the Stephen Harper Conservative Government created laws that the Supreme Court later determined to be unconstitutional. The rest of the Canada will have to wait to see if either Parliament changes the law or if another case makes it to the Supreme Court of Canada that deals with the second reason to deny enhanced credit though.

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About the author

Michael Dyck is a partner at Rees & Dyck Criminal Defence. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients. To read more of his articles, please visit his partner's website TomRees.ca.