TORONTO - The Harper government's tough-on-crime agenda took another hit Wednesday when Ontario's top court struck down provisions that limit pre-trial sentencing credit.
In its decision, the Court of Appeal ruled the law unconstitutional because, among other things, it could create sentencing disparities for similarly placed offenders.
"Both the offender and the public must have confidence in the fairness of the sentencing process and in the results," the court ruled.
"Public confidence in the criminal justice system would be undermined by an artificial distinction that results in longer jail terms for some offenders."
At issue is part of the Truth in Sentencing Act. The provision prohibits a trial judge from giving more than one-for-one pre-trial credit if a justice of the peace denies bail to the person because of a previous conviction.
The situation occurred in the case of Hamidreza Safarzadeh-Markhali, of Pickering, Ont., who was arrested in November 2010 on drug and weapons charges.
At a bail hearing, the justice of the peace noted his previous convictions as the reason for his ongoing detention.
Following Safarzadeh-Markhali's conviction in 2011, his lawyers called on the trial judge to strike down the provision the Conservative government enacted in 2009 — specifically Section 719(3.1) of the Criminal Code — that eliminated the court's discretion to give more than one day credit for each day spent in pre-trial custody.
Ontario court of justice Judge Michael Block agreed, and awarded Safarzadeh-Markhali 1.5 days credit for each day he spent in custody awaiting trial.
Among other things, Block found the law gave too much say to a justice of the peace in determining credit for pre-sentence custody. He also found it had a disproportionate effect on equally-placed offenders.
The Crown appealed, arguing Block had made legal errors. The law, the Crown said, aimed to target offenders with long criminal histories.
In siding with Block, the Appeal Court noted that three offenders with the same criminal records and given the same sentence could effectively end up serving substantially different amounts of time depending on whether they received bail.
In fact, the court found, a person who does not even apply for bail and is therefore not listed as detained because of a criminal record could end up with a shorter sentence than someone explicitly denied bail. The Appeal Court called that clearly unfair.
One effect, the court found, is that the most vulnerable members of society could be reluctant to exercise their bail rights out of concern that denial of bail could mean more time spent in custody.
"Like many attempts to replace the scalpel of discretion with a broadsword, its application misses the mark and results in unfairness, discrimination and ultimately unjust sentences," the Appeal Court said.
The Conservative government's attempt to crack down on crime has run afoul of the courts on several occasions.
Earlier this year, the Supreme Court affirmed the long-standing principle that offenders can receive extra credit for time spent in custody before sentencing. It has also struck down retroactive changes to parole eligibility, while other courts have refused to apply a new mandatory victim surcharge.