Court File and Parties
Court File No.: 2811 998 Date: July 25, 2012
Ontario Court of Justice (Central East Region)
Between:
Her Majesty The Queen
Mr. M. Gillen, appearing for Mr. N. Trebojevic, Counsel for the Crown
- and -
Hamidreza Safarzadeh-Markhali
Ms. L. Saunders, appearing for Counsel Mr. A. Schreck for Mr. Safarzadeh-Markhali
Heard: April 24, 2012
Judgment on Constitutional Challenge and Sentence
The Facts of the Case
[1] In the middle of the afternoon of November 3, 2010, Mr Hamidreza Safarzadeh-Markhali drove his car on a busy major street while smoking a joint. This attracted the attention of the constabulary. He was stopped, arrested and searched. In addition to a hot marijuana roach, he was found to possess a loaded .25 calibre pistol in a fanny pack strapped to his body.
He was charged with:
(1) Possession of a controlled substance (marijuana), contrary to s. 4(5) of the Controlled Drugs and Substances Act;
(2) Possession of a loaded prohibited firearm, contrary to s. 95(2) of the Criminal Code;
(3) Unauthorized possession of a firearm, contrary to s. 91(1) of the Criminal Code;
(4) Possession of a firearm knowing its possession is unauthorized, contrary to s. 92(1) of the Criminal Code;
(5) Unauthorized possession of a firearm in a motor vehicle, contrary to s. 94(1) of the Criminal Code;
(6) Possession of a weapon obtained by the commission of an offence, contrary to s. 96(1) of the Criminal Code;
(7) Careless storage of a firearm, contrary to s. 86(2) of the Criminal Code;
(8) and (9) Possession of a weapon contrary to a prohibition order, contrary to s. 117.01 of the Criminal Code;
[2] On November 15, 2010, Mr Safarzadeh-Markhali appeared before a justice of the peace for a bail hearing. The hearing commenced but concluded quickly after the applicant determined that he no longer wished to show cause as to why he should be released and consented to his detention.
[3] The justice of the peace then addressed the issue of whether the Information should be endorsed pursuant to s. 515(9.1) of the Criminal Code. After hearing submissions, she ruled thus:
"Okay. After listening to both the submissions in regards to 515(9.1) and given the criminal record that is one before the court, certainly the court is going to endorse the information in regards to 515(9.1) for the purpose that detention to the court even though he's already agreed to a consent order to consent to his own detention. It's not necessarily the fact that he has consented that the court has to look at by not endorsing the 515(9.1). We're looking at what is put towards the court in regards to the previous convictions. Certainly the court is of the position that once you endorse it, given its requirement under the Criminal Code."
Transcript of the evidence, November 15, 2010 page 81
[4] After detention, counsel received disclosure, conducted a judicial pre-trial conference, elected trial before the Ontario Court of Justice and, on January 28, 2011, set what was then the earliest possible trial date for October 2011. The trial ultimately took place on June 14 and 17, 2011 after counsel sought yet earlier dates. Mr Safarzadeh-Markhali was convicted on July 28, 2011 of all counts. On April 24, 2012, I entered an acquittal on consent on count 6. The Court notes that the trial was conducted in an efficient manner. Counsel, Mr Schreck, restricted the scope of argument to Charter issues based on the facts of the case. The result of the trial was not a foregone conclusion.
[5] Following his conviction, Mr Safarzadeh-Markhali set a date for sentence of December 9, 2011. The delay was caused by the Court's other commitments. I find that counsel acted with commendable diligence in obtaining the quickest possible trial. The period of delay following trial requires additional comment. Mr Safarzadeh-Markhali aborted his bail hearing and chose not to show cause. Mr Schreck was not counsel at the bail hearing. In the circumstances, it was reasonable for him to assume that the information reflected no endorsement as contemplated in s.719(3.1). On December 1, 2012, counsel learned of the above endorsement by the justice of the peace under s. 515(9.1) and, on December 12, 2011, brought this application. Argument took place on April 24, 2012, although an initial date was set of February 21, 2012. The adjournment from that date to April 24, 2012 was the responsibility of the Crown. I find that the entire period from Mr Safarzadeh-Markhali's arrest until this day reflects a will to achieve a speedy result.
Order Sought
[6] In his application, Mr Safarzadeh-Markhali asks for an order under s. 7 of the Canadian Charter of Rights and Freedoms that s. 719(3) and s. 719(3.1) are of no force and effect in this proceeding. In submissions on April 24, 2012, counsel modified his request to ask that I find of no force and effect the portion of s. 719(3.1) that eliminates the discretion of the trial judge to award 1.5:1 credit for pre-sentence custody. Assuming I rule as requested, he asks me to adopt an interpretation of the sections that would permit me to grant 1.5:1 credit in respect of Mr Safarzadeh-Markhali's pre-sentence custody.
Relevant Sections of the Criminal Code
515(9.1) Despite subsection (9), if the justice orders that the accused be detained in custody primarily because of a previous conviction of the accused, the justice shall state that reason, in writing, in the record.
719(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.
719(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).
(Impugned portion, emphasis of Block J)
Interpretation of the Phrase "if the Circumstances Justify It" in s. 719(3.1)
[8] The interpretation of the above-noted sections of the Criminal Code is central to the determination of both forms of relief sought by Mr Safarzadeh-Markhali. The court must interpret legislative intent and, unless faced with a constitutional challenge, adopt a meaning that is compatible with the goals of the legislation. This approach to statutory interpretation was approved by the Supreme Court in Bell Express Vu Limited Partnership, 2002 SCC 42, at paragraphs 26, 27:
[26] In Elmer Driedger's definitive formulation, found at p. 87 of his Construction of Statutes (2nd ed. 1983):
"Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
Driedger's modern approach has been repeatedly cited by this Court as the preferred approach to statutory interpretation across a wide range of interpretive setting: … I note as well that, in the federal legislative context, this Court's preferred approach is buttressed by s. 12 of the Interpretation Act, R.S.C. 1985, c. I-21, which provides that every enactment "is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects".
[27] The preferred approach recognizes the important role that context must inevitably play when a court construes the written words of a statute.
[9] The Supreme Court has held that Hansard and the minutes of parliamentary committees are of some limited use in constitutional review. See Re Section 94(2) of the Motor Vehicle Act, [1985] 2 S.C.R. 486. In cases where statutory interpretation rather than Charter legitimacy is the judicial focus, appellate courts have been more willing to rely on legislative history to determine legislative intention. See Tschritter v. Alberta (Children's Guardian for Alberta), 1989 ABCA 83, 57 D.L.R. (4th) 579. The speeches of individual public figures have been held to be admissible by the Supreme Court in the determination of the true object and purpose of legislation when the court must assess its constitutional legitimacy. See Re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297 per Justice McIntyre at p.318.
[10] I am aware of the principle, cited in Sullivan and Driedger's Construction of Statutes, Fourth Edition, at page 395, that legislation is presumed not to vary established law.
[11] I am also aware of the venerable rule in Marcotte v. Canada (Deputy A.G.), [1976] 1 S.C.R. 108, R v. McLaughlin, [1980] 2 S.C.R. 331 and R v. McIntosh, [1995] 1 S.C.R. 686 that penal statutes must be interpreted in favour of the accused where there is any ambiguity in their meaning.
[12] Parliament clearly drafted the legislation to address a perception that persons in custody were manipulating enhanced credit for pre-sentence custody to achieve shorter sentences than might be imposed otherwise. It also sought to address a perception that the process by which credit for pre-sentence custody is determined is not transparent. Parliament made these aims clear through the short title of the legislation, The Truth in Sentencing Act, in the extensive discussions in the House of Commons Standing Committee on Justice and Human Rights including submissions by the Minister of Justice and his counsel and in official publications on the issue.
[13] In respect of the phrase "if the circumstances justify it", the intention of Parliament is clear: accused persons are to be granted 1:1 credit for pre-sentence custody unless they can demonstrate that the "circumstances" of a particular defendant and a specific case merit awarding up to a maximum of 1.5:1 credit. The phrase suggests both that the defendant faces a low burden and that a broad spectrum of evidence will satisfy it.
[14] Justice Casey Hill, in his contribution to the April 2010 Law Society of Upper Canada "6 Minute Criminal Judge" educational program entitled; "Pre-Sentence Custody: A New Era", cites the proceedings of the House of Commons Standing Committee on Justice and Human Rights of May 9, 2009 for comments by Minister of Justice Rob Nicholson for the examples of circumstances which would justify the award of 1.5:1 credit. These would include, inter alia, "when the trial is unnecessarily delayed by factors not attributable to the accused".
(Emphasis of Block J)
[15] In my view Parliament intended that the burden would be discharged by diligent conduct by the defendant in reaching a speedy conclusion to the case. The measurement of the defence attitude to delay must not be according to the exacting standards of Charter s.11(b) jurisprudence. There is a heavy onus on the defendant to prove unreasonable delay. The court must assign responsibility for every portion of delay and assess prejudice. In my view, the conduct of this defendant during the over-all period from charge to sentence discharges the onus implied in the section under review.
The Constitutionality of Removing Sentencing Discretion from the Trial Judge
[16] No precedent exists wherein the justice of the peace at a bail hearing can bind the discretion of the trial judge in the matter of sentence.
[17] It is well-settled law that the sentencing process is part of the trial. As stated by the Supreme Court in R. v. Wust, 2000 SCC 18, 143 C.C.C. (3d) 129, "The goal of a sentencing order must be to impose a just and fit sentence, responsive to the facts of the individual offender and the particular circumstances of the commission of the offence." Aggravating features must be proved beyond a reasonable doubt. Until the enactment of the Truth in Sentencing Act, the trial judge calculated credit for pre-sentence incarceration as part of the sentencing process. The trial judge has the full facts of the offence, has more complete information about the circumstances of the offender than any other judicial official and alone has a complete view of the conduct of the accused as he makes his way through the administration of criminal justice.
[18] The justice of the peace at the bail hearing makes a determination in respect of an innocent person. The focus of the bail hearing is the release or detention of the defendant, not moral culpability for a proven crime. Submissions in respect of the circumstance of the alleged offence are generally very brief in the interest of accommodating the busy lists that are a factor of everyday life in the bail courts. Submissions in respect of the defendant are of necessity less informative and less informed than at the end of a trial.
[19] The amputation of a vital part of sentence adjudication from the trial and its re-assignment to the justice conducting the bail hearing puts the least-informed justice in a position where they can fetter the discretion of the trial judge on sentence.
[20] There has been a great deal of appellate instruction to the trial courts on the factors which can suggest credit for pre-sentence custody at a lower rate than the presumptive 2:1 standard which preceded the enactment of the statute under discussion. These factors are summarized by Justice Hill in Pre-Sentence Custody: A New Era, supra, at pages 9-10 and include;
(a) the existence of some rehabilitative programs at the remand centre with the opportunity to participate.
(b) a history of disobedience of court orders.
(c) the unlikelihood that the offender would be parole-eligible and deserving of statutory remission.
(d) deliberate delay, malfeasance, abuse of legal process.
[21] Factors "a" and "c" are extraordinarily unlikely to be in evidence at the bail hearing and would greatly magnify the length and complexity of the proceeding if they were.
[22] Factor "b" could be apparent to the justice of the peace presiding at the bail hearing on review of the defendant's criminal record. It would be relevant to the calculation of credit for pre-trial custody only if the "disobedience of court orders" took place in relation to the matter before the court or had a direct influence on the defendant's progress to the outcome of the case. Factor "d" refers to the defendant's conduct during the whole of the process from first appearance to sentence. Both of these factors, of course, can only be assessed in hindsight at the conclusion of the defendant's journey through the criminal justice system.
[23] It is impossible to repair the inadequacy of the bail hearing in respect of the determination of credit for pre-trial custody. The factors which must be considered in this process are either unknowable to the justice presiding or would fundamentally change the nature of the proceeding.
[24] As others, notably Justice Hill and Justice Green in R. v. Johnson, 2011 ONCJ 77, [2011] O.J. No.822, have commented, the 719(3.1) limitation on the discretion of the sentencing judge would survive a determination that the bail justice had erred. It is apparently unreviewable, even in the instant circumstance, where the defendant did not seek to show cause, and the detention order was a product of the defendant's waiver and not a determination of the merits of bail.
[25] Almost all inmates are subject to mandatory remission. The operation of the above section as it stands creates a disproportionate result as an accused person subject to an imposed 1:1 regime does not benefit from the 1/3 remission for the portion of sentence served prior to judgment on sentence. The identically placed accused entitled to 1 1/2:1 or at liberty pending sentence will benefit from mandatory remission or its equivalent. The longer the period of pre-sentence custody the worse the imbalance created. This result has no relation to either of the stated aims of the statute, the need to repress the manipulation of pre-sentence custody to achieve a lower sentence than that which would be otherwise served and the need for transparency in this aspect of the sentencing process.
[26] The criminal record of the accused is always a relevant consideration unless it is highly dated or reflects crimes utterly dissimilar to those before the court. Mr Safarzadeh-Markhali has a cognate criminal record and has breached several firearms prohibitions which arose from his prior crimes. Binding appellate authority requires me to find his record to be a significant aggravating feature on sentence. The operation of s.719(3.1), as presently worded, together with the s.515(9.1) endorsement, require that I restrict Mr Safarzadeh-Markhali to 1:1 credit for his pre-sentence incarceration. The combined operation of common law and the impugned portion of the statute require me to penalize the applicant twice for his previous criminal convictions.
[27] The burden on the crown in respect of s. 524 is the balance of probabilities test. A determination under s.524 (4) and 524 (8) at the bail hearing requires the sentencing judge to credit pre-sentence custody at a maximum of 1:1. The operation of this part of the scheme reduces the burden on the crown to prove aggravating factors on sentence beyond a reasonable doubt and reduces the trial judge's calculation of credit for pre-sentence custody to an administrative process.
[28] The instant case is a living illustration of the lack of transparency in the operation of the legislation under review. An important part of the sentencing was removed from the discretion of the justice benefiting from full submissions on the character of the offender, full knowledge of the proven crime and complete hindsight of the offender's diligence in achieving a speedy passage through the criminal justice system. The determination of credit for pre-sentence custody was reduced to an almost casual finding by the justice most poorly placed to know the first two of the above features and, necessarily, absolutely uninformed about the last. This significant finding was made 20 months before the actual sentence hearing in a separate proceeding.
[29] I am not surprised that counsel did not anticipate an endorsement under s. 515 (9.1). Where, as in the instant case, the defendant is required to show cause and declines, it is reasonable to expect that there will be no evidence-based finding on the record. A process which surprises learned counsel must be a complete muddle to the non-legally trained, well-informed citizen.
[30] What factors could have compelled Parliament to remove the determination of pre-sentence custody credit from the sentencing court?
[31] A clue to Parliament's real intention is provided in the comments of Minister of Justice Rob Nicholson to the House Committee on Justice and Human rights extensively quoted at footnote 40 on page 19 of Justice Hill's paper, supra,:
The 'practice of awarding generous credit …. undermines the commitment of the government to enhance the safety and security of Canadians by keeping violent or repeat offenders in custody for longer periods" ….the current system "fails to punish adequately for deeds that led to their convictions in the first place …especially …those offenders who have been denied bail and sent to a remand centre because of their past criminal records or because they violated their bail conditions"…" as a result of this initiative, a greater number of offenders would now serve a federal sentence of two or more years."
(Emphasis of Block J.)
[32] There it stands. The impugned portion of s.719 (3.1) has a disproportionate effect on equally placed offenders, injects into sentencing a lower burden of proof for aggravating factors, has no rational connection to the stated aims of the legislation and has the oblique purpose of increasing sentences in a manner outside the sentencing process.
[33] The inescapable conclusion is that the liberty interest of the subject, a constitutionally protected right under s.7 of the Charter, is violated by the impugned portion of s. 719(3.1). The appropriate remedy is to apply the remedy suggested in Smickle, 2012 ONSC 602. Pursuant to the provisions of s. 52 (1) of the Constitution Act 1982, I find that the portions of s. 719(3.1) which strip the determination of credit for pre-sentence custody from the trial court are inconsistent with the Charter and are of no force and effect in this proceeding.
The Appropriate Sentence for Mr Safarzadeh-Markhali
[34] Mr Safarzadeh-Markhali has a criminal record which includes the following convictions:
2002: Uttering threats (suspended sentence one year probation 5 days pre-sentence custody), Assault (1 day 66 days pre-sentence custody 2 years probation)
2004: Aggravated Assault (8 months jail 266 days pre-sentence custody and 2 years probation s.109 for life, Possession of Restricted Firearm (8 months concurrent)
2005: Possess Marijuana (Cond. Discharge 12 months probation)
2010: Possession Marijuana for the Purpose of Trafficking and Possession Cocaine for the purpose of Trafficking (5 months Conditional Sentence and 12 months probation)
He has not been deterred from criminal conduct by significant reformatory sentences.
[35] Counsel has related to me aspects of Mr Safarzadeh-Markhali's life. He is 29 and emigrated from Iran as a teenager. His father deserted the family soon after arrival. His younger sister died in a traffic accident. He has had some psychiatric issues stemming from his family challenges. He gained skills and worked to support his family.
[36] The crimes for which I must sentence Mr Safarzadeh-Markhali suggest his readiness to use deadly force. Despite my sympathy for Mr Safarzadeh-Markhali's family circumstances, I am compelled to the obvious conclusion that his personal rehabilitation is of little importance when crafting the appropriate sentence. A significant penitentiary sentence is required to deter other persons who might carry loaded restricted firearms and breach lifetime firearm prohibitions. The primary objective in sentencing Mr. Safarzadeh-Markali must be general deterrence and protection of the public.
[37] A word in respect of several of the counts. Count 2, Possession of a loaded prohibited firearm requires a minimum sentence of three years in these circumstances. A minimum sentence for this count is not appropriate when a very closely-related prior conviction is indicated and s.95(2) (a)(ii) provides for a 5 year minimum when there is a previous conviction for the same offence. Counts 8 and 9 are flagrant breaches of lifetime firearms prohibitions. Those crimes are aimed directly at the administration of criminal justice and must attract a special measure of deterrence. I must also bear in mind the principle of totality so that the overall sentence is not merely the sum of all of the potential sentences but is tailored to the circumstances of the defendant. I judge a sentence of 6 years prison to be appropriate.
[38] Mr Safarzadeh-Markhali has served an actual 20 months and 22 days of pre-sentence custody. I have already indicated that the persistent diligence of counsel permits me to find that circumstances exist appropriate to a calculation of 11/2 to 1 pre-sentence custody to post sentence custody. I calculate pre-sentence custody at a total of 31 months.
[39] These are the individual sentences taking account of pre-sentence custody:
Count 1: Possession of a controlled substance (marijuana), C.D.S.A. s. 4(5);
- $500 fine
Count 2: Possession of a loaded prohibited firearm, Criminal Code s. 95(2);
- 4 years composed of 31 months pre-sentence custody and 17 months remainder consecutive to all other sentences.
Count 3: Unauthorized possession of a firearm, Criminal Code s. 91(1);
- 1 year concurrent
Count 4: Possession of a firearm knowing its possession is unauthorized, CC s. 92(1);
- 1 year concurrent
Count 5: Unauthorized possession of a firearm in a motor vehicle, Criminal Code s. 94(1);
- 1 year concurrent
Count 7: Careless storage of a firearm, Criminal Code s. 86(2);
- 1 year concurrent
Count 8 and Count 9: Possession of a weapon contrary to a prohibition order, Criminal Code s. 117.01;
- 2 years concurrent on each count and consecutive to all other counts
Totality of prison sentence imposed: 31 months pre-sentence custody and 41 months to be served.
A DNA sample is to be taken
A Life-time s.109 C.C.C. order is hereby imposed
Michael Block, Justice