Pubdate: Thu, 11 Sep 2014
Source: Globe and Mail (Canada)
Copyright: 2014 The Globe and Mail Company
Contact:  http://www.theglobeandmail.com/
Details: http://www.mapinc.org/media/168
Author: Sean Fine
Page: A8

TORIES' CRIME AGENDA TAKES ANOTHER HIT

Ontario court strikes down part of Truth in Sentencing Act to protect
judges' discretion in awarding credit for pre-trial
incarceration

In a strong defence of judicial discretion, the Ontario Court of
Appeal has struck down part of the Truth in Sentencing Act, a
centrepiece of the Conservative government's tough-on-crime agenda.

The ruling, which directly affects only Ontario, could mean shorter
jail terms for hundreds of prisoners. Adding insult to injury for the
government, the 3-0 ruling was written by the court's new chief
justice, George Strathy, appointed by federal Justice Minister Peter
MacKay in June after the government left the position vacant for an
unprecedented six months.

The government had accused judges of sullying the justice system's
reputation by granting generous credit to offenders who had spent time
behind bars before their trials began. Since the early 1970s, judges
had routinely given those offenders two days in jail for every day
served before sentencing - in recognition of the near-automatic
reduction of jail terms by one-third that offenders receive after 
sentencing.

With the 2010 Truth in Sentencing Act, the government set one day
credit for each day served as the general rule, and 1.5 days credit
where circumstances justify it. But for offenders who were denied bail
primarily because of their criminal record, the act says they must not
be given any extra credit.

The court said this bar to extra credit was unconstitutional because
it could mean that offenders like the man before the court, Hamidreza
Safarzadeh-Markhali, spend nearly a year longer in jail than others
who committed a similar crime. Some of those offenders may have been
denied bail because they lacked the social supports to persuade a
justice of the peace that they should be released, Chief Justice
Strathy wrote.

"Canadians understand that a sentence must be fair, in all its
aspects," Chief Justice Strathy wrote. "Public confidence in the
criminal justice system would be undermined by an artificial
distinction that results in longer jail terms for some offenders."

Mr. Safarzadeh-Markhali, who was convicted of smoking marijuana while
he drove and carrying a loaded gun, received six years in prison. He
served nearly 21 months in custody before his sentencing; the trial
judge ordered that he be given 31 months credit for that time. The
Ontario government had appealed that ruling.

The appeal court's ruling was a second devastating blow to the Truth
in Sentencing Act. In April, the Supreme Court ruled unanimously that
judges could routinely give 1.5 days credit for each day in pre-trial
custody, in spite of the government's argument that the general rule
should be one day counts as one day.

Both the earlier ruling, and this one, were important tests of how far
the government could go to limit judges' discretion in sentencing.
Chief Justice Strathy made it clear that he took no issue with the
government's wish to make repeat offenders serve longer periods in
jail.

"Unfortunately, however, 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.
Instead of ensuring that repeat offenders serve a greater portion of
their custodial sentences, the law targets only those denied bail due
to their previous convictions."

A spokesman for the Ontario Attorney-General's department said it was
too early to say whether the government would try to appeal the ruling
to the Supreme Court.

Chief Justice Strathy said the law violated the principle of
proportionality at the heart of the Charter of Rights and Freedoms'
Section 7, which protects security of the person.

"That principle is understood and endorsed by all Canadians and is
applied in our courts on a daily basis," he wrote.

A press secretary for Mr. MacKay said the government was reviewing the
decision. "Canadians expect violent criminals to serve sentences which
reflect the severity of their crimes," Clarissa Lamb said. "We will
continue moving forward with our tough on crime agenda and support
victims of crime despite the opposition parties' efforts to stand in
our way."
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MAP posted-by: Matt