Ontario Court of Appeal Strikes Down Federal “Tough-On-Crime” Legislation: R v Safazadeh-Markhali

In R v Safarzadeh-Markhali, 2014 ONCA 627, the Court of Appeal for Ontario struck down the legislative scheme surrounding sentencing and the credits granted for pre-sentence custody.

Facts and Judicial History

Mr. Safarzadeh-Markhali was pulled over by a police officer who testified that he had smelled marijuana while driving behind and observed him holding an object “in the thumb-and-forefinger grip associated with marijuana.” After being arrested, a firearm was also discovered and he was charged with the possession of marijuana and various firearm offences.

At trial, Mr. Safarzadeh-Markhali unsuccessfully argued that the search was unlawful and that it was a violation of his right not to be arbitrarily detained or imprisoned under section 9 of the Charter. He also claimed that the decision to pull him over was racially motivated. While the trial judge felt that the officer’s evidence was “unsatisfactory in several respects,” another officer corroborated the evidence and there was nothing to suggest that the actions were racially motivated. As such, the trial judge found that there was no Charter breach.

The Crown Appeals the Sentence

Justice Strathy writing for the Court quickly disposed of the Mr. Safarzadeh-Markhali’s conviction appeal. He found no reason to interfere with the trial judge’s findings, as discussed above.

Cross-appealing on the sentence, the Crown challenged the trial judge’s decision that recent amendments to the Criminal Code, RSC 1985, c C-46, contained in the Truth in Sentencing Act, SC 2009, c 29, violated section 7 of the Charter and are of no force or effect. In short, sections 719(3.1) and 515(9.1) of the Criminal Code disqualified those who were not granted bail from any additional credit for pre-sentence custody (only 1:1 credit instead of a maximum of 1.5:1). The amendments were aimed at addressing the concerns of leniency and the problem of individuals lengthening the duration of their pre-sentence custody to take advantage of enhanced credit.

In the trial judge’s view, the provisions had a “disproportionate effect on equally-placed offenders” and “had the effect of doubly penalizing” someone for prior convictions, as this is already an aggravating factor taken into account during sentencing. As such, he held that there was a section 7 Charter violation. On appeal, the Crown argued that the trial judge did not complete a thorough section 7 analysis and made an error in law.

Conducting a judicial interpretation of the amendments, the Court of Appeal took into account Justice Karakatsanis’ comments in the recent Supreme Court of Canada decision R v Summers, 2014 SCC 26 (commentary from TheCourt.ca can be found on that decision here). In that case, the Supreme Court held that enhanced credit for pre-sentence custody may be granted if the “circumstances justify it.” Justice Karakatsanis also noted that sentencing must take into account the values laid out in section 718 of the Criminal Code. These include proportionality between an offence and the sentence, and the parity of sentences between similar offences and offenders.

Section 7 of the Charter

The Court of Appeal noted that to prove a section 7 Charter violation, an applicant has the burden of proving a deprivation of life, liberty, or security of the person and that this deprivation does not accord with the principles of fundamental justice (PFJs). If successful, the state has the onus of justifying the Charter infringement under section 1 and the Oakes test.

While it was clear that Mr. Safarzadeh-Markhali’s liberty interests were at stake, Justice Strathy noted that the trial judge did not explicitly discuss the PFJs. He stated that: “The principles are grounded in Canada’s legal traditions and understandings of how the state must deal with its citizens.” After citing examples such as procedural fairness, he further held that: “In my view, the principle of proportionality in sentencing – a principle expressed in the [Criminal] Code itself and rooted in Canada’s legal tradition – is a principle of fundamental justice” (at para 73).

In support of this proposition, a distinction was made between the gross proportionality of a sentence and the sentencing process (the latter being the issue of this appeal). In Justice Strathy’s view: “[T]he principle of proportionality prevents Parliament from making sentencing contingent on factors unrelated to the determination of a fit sentence. In this sense, the principle of proportionality is closely associated with the established principle that a law violates, life, liberty, or security of the person cannot be arbitrary” (at para 85).

All in all, the Court found a violation of this PFJ as the Criminal Code amendments provided a “structural impediment to the determination of a proportionate sentence and therefore to a just sentence.” In other words, the decision to grant bail has a large impact on an offender’s sentence, which is problematic as the decisions are “markedly different.” Further, the Court held: “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” (at para 101). Lastly, the Court found that the rights deprivation could not be saved under section 1 of the Charter. The Court upheld the trial judge’s decision rendering the legislation of no force and effect.


This case is notable section 7 Charter case that follows Canada (Attorney General) v Bedford, [2013] 3 SCR 1101, as the Court of Appeal cements the “proportionality of sentencing” as a PFJ. This is also another example of a piece of legislation created by the Harper government that has been struck down by the courts. For instance, in R v Nur, 2013 ONCA 677 (leave to SCC granted), the Ontario Court of Appeal struck down mandatory minimum sentences in regards to firearm offences.

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