Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Charter of Rights and Freedoms - Liberty - Criminal law - Sentencing - Credit for pre-trial custody - In determining length of a sentence, a court may credit the convicted offender one day for each day spent in custody as a result of the offence - If circumstances justify it, enhanced credit of one and one-half days for each day spent in custody may be available - Enhanced credit not available if accused was denied bail and justice presiding over bail hearing stated in the record that the reason was the accused’s prior criminal record - Whether limitation on the availability of enhanced credit for time spent in custody infringes s. 7 of the Charter - If so, whether limitation is saved by s. 1 of the Charter - Truth in Sentencing Act, S.C. 2009, c. 29 - Criminal Code, R.S.C. 1985, c. C-46, ss. 719(3), 719(3.1).
Mr. Safarzadeh-Markhali was charged with possession of marijuana and eight firearms offences. On November 15, 2010, he appeared before a justice of the peace for a bail hearing. He consented to detention and did not wish to show cause as to why he should be released. The justice of the peace denied bail and endorsed the Information, stating that bail was denied because of Mr. Safarzadeh-Markhali’s prior criminal record. Mr. Safarzadeh-Markhali was convicted of all counts but an acquittal was entered, on consent, on one firearms offence. Section 719(3) of the Criminal Code, R.S.C. 1985, c. C-46, limits credit in sentencing for time spent in pre-trial custody to one day for each day spent in custody. Section 719(3.1) sets out in part that, if circumstances justify it, enhanced credit of one and one-half days may be available but not if bail was denied and the justice presiding over the bail hearing stated in the record that the reason for denying bail was the accused’s prior criminal record. Section 719(3.1) also sets out other limitations on the availability of enhanced credit. Before sentencing, Mr. Safarzadeh-Markhali applied for a declaration that ss. 719(3) and 719(3.1), as applied in this case, breach the right to liberty protected by s. 7 of the Canadian Charter if Rights and Freedoms. The sentencing judge held that a portion of s. 719(3.1) of the Criminal Code violates s. 7 of the Charter and is of no force and effect. He granted enhanced credit to Mr. Safarzadeh-Markhali. The Court of Appeal dismissed an appeal.