IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           H.S.S. has pleaded guilty to the following charges:

[2]           H.S.S. was initially arrested on January 21, 2015.  He was released on a cash deposit Recognizance of Bail for the initial charge on January 26, 2015. 

[3]           On July 31, 2015, he was arrested as a result of failing to comply with conditions of his judicial interim release which form the basis of the breach charges. 

[4]           Section 524(8) provides that a judge shall detain an accused who, while already on interim release, is arrested as a result of a contravention of an undertaking or recognizance unless the accused shows cause why his detention is not justified.

[5]           On August 4, 2015 he was detained under that section. 

[6]           On January 21, 2016, following his preliminary inquiry, H.S.S. reapplied for but was denied bail.

[7]           On February 17, 2016, H.S.S. entered guilty pleas to the aforementioned charges.

[8]           The initial sentencing hearing began on May 26, 2016.  Crown counsel submits that the appropriate sentence for the sexual assault offence is between three and three and one half years.

[9]           Defence counsel submits that one year followed by two years of probation is a fit sentence.

[10]        An issue arose during the sentencing hearing as to the amount of pre-sentence credit that should be given to H.S.S..  His counsel submitted that he should receive 1½ days for each day in custody.

[11]        Crown cited s. 719(3.1) in support of his submission that credit is only one day for each day spent in custody.  Under s. 719(3.1), enhanced credit of one and one-half days for each day spent in custody can be given unless the person was detained in custody pursuant to s. 515(9.1) because of a previous conviction or pursuant to s. 524(4) or (8) - where the person has committed an indictable offence while on bail or breached a term of a release document.

[12]        Defence counsel asks this Court to apply the analysis and decision in R. v. Safarzadeh-Markhali, 2016 SCC 14 (CanLII), 2016 S.C.C. 14 to this case and find that s. 719(3.1) as it relates to s. 524(4) and (8) of the Criminal Code is unconstitutional as it is contrary to s. 7 of the Charter and not saved by s. 1 of the Charter.

[13]        She also seeks a declaration that the words “unless the reason for detaining the person in custody was stated on the record under subsection 515(9.1) or the person was detained in custody under s. 524(4) or (8)” in s. 719(3) are of no force and effect, pursuant to s. 52 of the Constitution Act, 1982.

[14]        The substantive offence occurred in H.S.S.’s home on the [deleted for publication] Reserve in [deleted for publication].  The circumstances of the offence are that the victim, who was 15 years old at the time, saw her Aunt and Uncle - D.S and H.S.S. - in [deleted for publication].  She was homeless at the time and the S’s took her to their home in [deleted for publication].

[15]        When they arrived home, D.S. and D.S.’s son O. was also home.  The group played cards and were drinking.  X.J. went to bed after H.S.S. and D.S.  X.J. woke up to find her pants pulled down and H.S.S. on top of her engaging in sexual intercourse with her.  She told him to get off then blacked out.

[16]        Around this time, the telephone rang and when D.S. got up to answer it, saw H.S.S. get out of the bed where X.J. was.  H.S.S.’s pants were down around his ankles and his penis exposed.

[17]        D.S. called the police and H.S.S. was arrested.  H.S.S.’s DNA was found inside and on the victim.  H.S.S. was 47 years of age at the time.

[18]        H.S.S. had been drinking large amounts of alcohol before the offence and doesn’t have a clear recollection of what happened after he went to bed with his wife.  He recalls hearing the telephone ring and jumping out of bed when D.S. came into the room. 

[19]        Following his arrest, H.S.S. was released on bail with conditions that he abide by a curfew and not possess or consume alcohol.  He was not allowed to be within 30 km of [deleted for publication] except for work purposes and as approved by his bail supervisor.  He was not to attend the [deleted for publication] Reserve.  As a result of the latter conditions, he could not go home and instead was staying at a Shelter in [deleted for publication]. 

[20]        On July 7, 2015, the RCMP attended at the Shelter to conduct a curfew check.  H.S.S. had checked out of the shelter and had not been seen since.  H.S.S. admits he left the Shelter but explains that he did so to work as a forest fire fighter, explaining that he was in [deleted for publication] for two weeks.  He explains that he thought he could do so as long as he didn’t work in [deleted for publication].  However, I note that in late June, 2015, he applied to vary a condition of his bail conditions so he could work without having to provide a schedule in advance to his bail supervisor but that application was denied.  These are the events resulting in the second charge.

[21]        On his return to [deleted for publication], he found out that the police were looking for him and he admits he drank alcohol to escape the pressure he was feeling.

[22]        On July 31, 2015, the RCMP attended the Shelter for a curfew check and were told by staff that H.S.S. had been evicted around 11 p.m. that night due to intoxication and causing a disturbance.  He was located, arrested and charged with the third offence.

[23]        As indicated previously, he was denied bail on August 4, 2015 and has remained in custody since that time.

[24]        In preparation for sentencing, I had the benefit of a Gladue report, an assessment and report by Dr. Darcangelo, Registered Psychologist with Forensic Psychiatric Services Commission, as well as a Pre-Sentence Report. 

[25]        When he was asked about how this may have affected X.J., he indicated that it must have affected her in many ways although he was uncertain as to how she may have been impacted.

[26]        This was a serious assault upon X.J.  This incident has divided their family, and unfortunately has removed some of her family support.  She has more difficulty attending and concentrating on school and it clearly has taken a tremendous emotional toll upon her.  She feels uncomfortable around older men and has difficulty trusting them.  She describes anxiety when thinking about the assault and it makes her feel like crying and withdrawing.  It is well recognized that sexual assault on children and underage girls has lasting negative consequences.

[27]        H.S.S. expressed regret for his actions and attributed the sexual assault to his alcohol misuse.  He advised Dr. Darcangelo that “without alcohol, I’m a way better person.  I don’t get into trouble with the law.”

[28]        H.S.S. has a prior criminal record.  His prior convictions date back to 1991 and he has three convictions for assault, one for uttering threats and one s. 810 recognizance pursuant to s. 810.  Most, if not all, relate to domestic violence involving D.S.  He has three impaired driving charges, six breaches of probation or undertaking convictions; and two possession of controlled substance convictions.  This is his first conviction for sexual assault.  The biggest contributing factor to these convictions is alcohol misuse.

[29]        H.S.S. is from the [deleted for publication] Nation and a member of the [deleted for publication] First Nation in [deleted for publication].  This nation was one of the earliest nations to have contact with the European explorers.  Historically, they were located in [deleted for publication] which means [deleted for publication].  The community has suffered the devastating consequences of colonization, including relocations, banning of the potlatch and theft of important cultural artefacts; and the residential school system.

[30]        Many of H.S.S.’s family, including his parents and six of his eight siblings, attended the [deleted for publication] Residential School located in [deleted for publication].

[31]        As a child, H.S.S. witnessed significant domestic violence and alcohol abuse in his home.  In his words, it occurred “behind closed doors but we lived through it.  We had no choice but to live through it.”

[32]        H.S.S. married D.S. and they have seven children and five grandchildren.  The pattern of domestic violence and alcohol abuse continued in his own home.  When he is drinking, H.S.S. is described by his children as a “Dr. Jekyll and Mr. Hyde, two different personalities.  When he’s drunk he’s loud and obnoxious...it’s him but it’s not him.  We got used to it when we were drinking.”

[33]        H.S.S. has made numerous attempts to stop drinking, having attended numerous residential treatment programs from 1985 to 2009.  He has taken the Substance Abuse Management Program while in custody.  While in custody for the current offences, H.S.S. has completed the Substance Abuse Education Module of Essential Skills to Success, The Violence Prevention Program and has seen an addiction counsellor, Mr. Steven Kelly.

[34]        Mr. Kelly provided a letter dated May 4, 2016 in which he makes the following comments about his observations of H.S.S.’s attitude:

[35]        H.S.S. has also attended a weekly Healing Circle and has taken on responsibility as the recreation area cleaner on his unit.  He has gained new insight by recognizing the role of trauma in his addiction.

[36]        H.S.S.’s community suffers from high levels of substance abuse and this presents tremendous challenges for H.S.S. who expresses the desire to maintain a life of sobriety.  Previous government policies and residential schools have had far reaching effects, extending into H.S.S.’s home and community.

[37]        Pierre Murray, probation officer, in his Pre-Sentence Report says:

[38]        I must determine a sentence that is appropriate, taking into consideration the purpose and objectives of sentencing including denunciation, deterrence, separation from society when necessary, rehabilitation of and promotion of responsibility in the offender, reparation for harm done to victims and the community.  I also must consider mitigating and aggravating factors as well as the individual circumstances of H.S.S. and his community.

[39]        A sentence must reflect the gravity of the offence and the moral blameworthiness of the offender.  It must not be unduly harsh.

[40]        Crown counsel provided a number of cases to support his position.  A number of those cases involved sexual offences that were more violent in nature or where the offender felt no remorse for the offence and had little insight into the harm caused to the victim.

[41]        Counsel for H.S.S. also provided cases to support her position.  Those cases involved offenders who have undergone extensive rehabilitation prior to sentencing or, in one case, an extensive delay between the offence and the laying of the charges.

[42]        As a starting point, I accept that the usual range of sentence for sexual assault involving intercourse is two to six years: R. v. Pouce Coupe, 2014 BCCA 255, @ para.31; R. v. G.M., 2015 BCCA 165 @ para. 22.

[43]        I am mindful that the range is only a guideline and that sentencing is a highly individualized process.

[44]        Sexual assault of girls under the age of eighteen years is a serious offence.  The consequences of sexual assault upon a victim are often lifelong.  In the circumstances of this offence, I adopt the words of Smith J.A. in R. v. R.R.M. 2009 BCCA 578 @ para. 22 (referring to the observations of Lambert J.A. in R. v. S.G.N. 1999 BCCA 738 @ para 41):

[45]        And also her views at para. 23 and 24:

[46]        The mitigating circumstances are H.S.S.’s guilty plea and his expression of regret and remorse for his actions.  He was not able to articulate how X.J. may have been affected but I do not take from that that he lacks remorse.  H.S.S. has undertaken programs while in custody and has expressed a willingness to undergoing treatment to address the issues related to past trauma and that may be contributing significantly to his alcohol misuse.  He does not have a record for sexual offences.

[47]        I also acknowledge that during the time he was on bail, he was prohibited from living in his home and community.

[48]        There are also a number of aggravating factors.  H.S.S. is X.J.’s uncle and she was a vulnerable young girl who had been taken into their home because she was homeless and needed shelter and protection.  X.J. was only 15 years of age and was asleep at the time of the sexual assault.  H.S.S., as her uncle, was in a position of trust towards X.J. and assaulted her in the very home where she was to be protected.

[49]        Denunciation and deterrence must be given paramount consideration: s. 718.01. 

[50]        Considering all the circumstances, the law, as well as mitigating and aggravating circumstances, I am of the view that the appropriate sentence in this case is two years.

[51]        Counsel for H.S.S. seeks a ruling that a certain portion of s. 719(3.1) of the Criminal Code, as highlighted below, is unconstitutional as it is contrary to s. 7 of the Charter and not justified under s. 1.

[52]        I set out the relevant sections of the Criminal Code below:

[53]        I also set out the relevant provisions of the Canadian Charter of Rights and Freedoms below:

[54]        Crown counsel relied on R. v. Chambers for authority that the legislation at issue does not violate H.S.S.’s s. 7 rights.  Furthermore, he emphasizes that this decision should be followed by courts in this province.  The decision of the Yukon Court of Appeal was written by the Chief Justice of British Columbia and concurred in by Donald J.A., another BC Court of Appeal Justice, as well as Justice Cooper of Nunavut.

[55]        Chambers dealt with the constitutionality of s. 719(3.1) and the denial of enhanced credit following bail revocation under s. 524(8). 

[56]        The first issue decided by the court was that Mr. Chambers had been detained under s 524(8) although he had remained in custody by consent and had not proceeded with a bail hearing.  The court then embarked upon the challenge to the constitutionality of s. 719(3.1).  In framing the analysis, the court summarized the values reflected by s. 7 of the Charter:

[57]        The court in Chambers agreed with the sentencing judge that the provision was not arbitrary.  It considered whether s. 719(3.1) was overbroad and at para. 96 the court identified the purpose or objective of the provision:

[58]        The court goes on to examine whether the provision is overbroad and at para.102 refers to the following guidelines established in Bedford:

[59]        Quoting from debates in the House of Commons when the legislation was introduced, the court accepted that the purpose of the provision is to enhance public confidence in the integrity of the justice system and to enhance the safety and security of Canadians by keeping violent or repeat offenders in custody for longer periods.

[60]        Other related purposes include more available programing to offenders and to provide adequate punishment for the offences committed, especially in the case of offenders who have violated their bail conditions: para 105.

[61]        Based on this analysis, the court was not able to conclude that there was “no connection, in whole or in part, between its effects and its purpose”: para 104.  In other words, the legislation was not overbroad.

[62]        The court also considered whether the legislation was grossly disproportionate to the law’s objective, summarizing the test set out in Bedford:

[63]        The focus at this stage of inquiry was on the sentencing judge’s conclusion that the impugned section, if applied to Aboriginal offenders, would result in punishment in breach of the “fundamental principle of proportionality and therefore render a sentence grossly disproportionate.”

[64]        In concluding that the legislation was not grossly disproportionate, the court said the following:

[65]        The court cited a passage in R. v. Summers, 2014 SCC 26 (CanLII), 2014 S.C.J. No. 26 in which the Supreme Court of Canada recognized that Aboriginal people are more likely to be denied bail and that a system that resulted in longer, harsher sentences that was not based on their conduct but on their isolation and inability to pay, would not be in line with sentencing principles of parity and proportionality.  The court in Summers was of the view that providing enhanced credit for loss of early release eligibility responded to that concern.

[66]        After referring to this passage in Summers, Bauman C.J.B.C., in Chambers, was of the view that s. 718(3.1) was based upon the “wrongfulness of this subset of offenders’ conduct while on judicial interim release ... not ... on offenders’ isolation and inability to pay” and resulting inability to obtain bail.

[67]        After Chambers was written but before publication, the decision of the Ontario Court of Appeal in R. v. Safarzadeh-Markhali, 2014 ONCA 627 was released.  The Ontario Court of Appeal found that a portion of s. 719(3.1) - denial of enhanced credit when the reason for detaining a person in custody is due to a previous record under s. 515(9.1) and endorsed on the record - unjustifiably infringed upon the s. 7 rights of offenders. 

[68]        Bauman, C.J.B.C., was of the view that it did not affect his conclusions in Chambers and distinguished Safarzadeh-Markhali on the basis that the concern there was the disparity in length of custody between offenders, otherwise similarly situated, due to their inability to obtain bail and between those who receive an endorsement due to their prior record and those who do not.  In his view, all ss. 524(4) and (8) offenders are treated similarly: para 134.  [Emphasis added]

[69]        The Chambers judgment was released on October 7, 2014.  It was appealed to the Supreme Court of Canada but Mr. Chambers was deceased by that time and leave to appeal was denied.

[70]        On April 15, 2016, the decision of the Supreme Court of Canada in R. v. Safarzadeh-Markhali was released.  The court was asked to consider whether an individual denied bail primarily because of prior convictions was overbroad and violated the right to liberty guaranteed by s. 7 of the Charter.

[71]        It found that the portion of 719.1(3.1) which denied enhanced credit for pre-sentence custody to an offender denied bail because of a prior record pursuant to s. 515(9.1) was overbroad and unjustifiably infringed s. 7 of the Charter.

[72]        No ruling was made on the constitutionality of the remaining portion of s. 719.1(3.1) which denies enhanced credit for pre-sentence custody if there are reasonable grounds to believe the offender had committed an indictable offence after release on a summons, appearance notice, promise to appear, undertaking or recognizance or the offender is denied bail because of a potential or actual failure to comply with conditions of the aforementioned release documents.

[73]        Chief Justice McLachlin recognized that enhanced credit serves two purposes.  First, it ensures that an offender detained in pre-sentence custody - which is not subject to parole and early release provisos - does not spend more time behind bars than an identically situated offender released on bail.  Second, it compensates for factors such as overcrowding, inmate turnover, and labour disputes that make pre-sentence custody more onerous than post-sentence custody: para. 8.

[74]        Parliament enacted the Truth in Sentencing Act, S.C. 2009, c. 29 which amended the Criminal Code to provide that an accused who was denied bail primarily because of a previous conviction as certified under s. 515(9.1) or if the offender’s bail was revoked under ss. 524(4) or (8) of the Code was ineligible for enhanced credit and was limited to 1:1.

[75]        For a unanimous court, McLachlin, C.J. ruled that the previous conviction segment of s. 719(3.1) is unconstitutionally overbroad “because its effect was to deprive some persons of liberty for reasons unrelated to its purpose”: para. 22.

[76]        The first step in the overbreadth analysis first requires the court to assess the relationship between the law’s purpose and its effect: R. v. Moriarity, 2015 SCC 55.  Although the decision in Safarzadeh-Markhali was confined to the previous conviction segment of s. 719(3.1), the court considered the purpose of the enacting legislation that removed the ability to obtain enhanced credit in both circumstances - s. 515(9.1) or s. 524(4) and (8).  Accordingly, this analysis applies equally to the portion of s. 719(3.1) that is before me.

[77]        Citing Moriarity, the court summarized the considerations that guided it in properly characterizing Parliament’s purpose in a s. 7 analysis into overbreadth:

[78]        The court examined the legislation, the text and context of the legislation as well as the history of the legislation, including statements made by the Minister of Justice during his presentation to parliament, that the denial of enhanced credit was aimed at promoting public safety and public confidence in the justice system, by imposing longer sentences on violent and repeat offenders and increasing their exposure to rehabilitative programming.

[79]        The court reached the following conclusions:

[80]        The law must not go further than reasonably necessary to achieve its legislative goals: Bedford, para. 101.

[81]        A unanimous court concluded that denying enhanced credit to offenders who are denied bail primarily because of a prior conviction is overbroad because “it catches people in ways that have nothing to do with enhancing public safety and security.”  Accordingly, the impugned provision infringes s. 7 of the Charter.

[82]        The court pointed out that s. 515(9.1) is broadly worded and applies to any person denied bail primarily because of a previous conviction.  It does not specify or even broadly identify the nature or number of offences that would warrant a denial of bail based on a criminal record.  The court cites as examples people charged with failing to appear in court charges who may be caught by the provision: para. 53.

[83]        Furthermore, the court considered that there is limited availability of judicial review of the endorsement under s. 515(9.1) and someone denied bail on that basis would be without recourse to have the error remedied. 

[84]        Ultimately, McLachlin, C.J. found that while the provision is rationally connected to its purpose of enhancing public safety and security, it was not minimally impairing nor proportionate in balancing between salutary and deleterious effects, and the infringement of the s. 7 right, was not justified under s. 1 of the Charter: para 61, 62.

[85]        The following words of McLachlin, C.J. are apposite in the case before me:

[86]        Counsel for H.S.S. submits that the analysis and ultimate finding in Safarzadeh-Markhali is equally applicable to the s. 719(3.1) as they relate to s. 524(4) and (8) and also submits that this court can decline to follow binding precedent when a new legal issue is raised as a consequence of significant developments in the law, or if there is a significant change in the circumstances or evidence that fundamentally shifts the parameters of the debate: R. v. Bedford, 2013 SCC 72 (CanLII), [2013] 3 S.C.R. 1101, para 42.

[87]        As McLachlin, C.J. stated in Bedford at para 43 and 44:

[88]        This passage was cited again with approval in Carter v. Canada (Attorney General), 2015 SCC 5 and at para. 44 the unanimous court said this:

[89]        Counsel for H.S.S. also argues that the Chambers decision was ultimately decided on a point of statutory interpretation, namely, whether Mr. Chambers was detained within the meaning of s. 524(8) although he consented to remain in bail and did not have a bail hearing.  Accordingly, she submits that as it was not strictly necessary to the decision in Chambers to embark on the Charter analysis, and as that portion of the judgment is technically obiter, it is not precedential.  Given the decision I have reached, I do not need to consider this argument.

[90]        Crown counsel forcefully submits that the decision by the Yukon Court of Appeal ought to be followed in British Columbia and, secondly, based upon the principle of comity, I should also follow a decision by Judge Ritchie in R. v. Romanchych, 82309-1, Abbotsford Registry (September 9, 2016) in which she felt that it would be improper for her to ignore the ruling in Chambers as she was “virtually bound” by that authority. 

[91]        Chambers was referred to in R. v. Rutley, 2015 YKCA 8 and because the Chambers was binding authority in that jurisdiction and the accused did not raise a constitutional issue at his sentencing, leave to raise a new Charter issue regarding s. 524 (8) on appeal was not granted.

[92]        Crown counsel also submits that Chambers has been followed in three other decisions in British Columbia.  I have reviewed those and in my view those decisions dealt with narrow issues such as when a person is considered detained under s. 524(8): R. v. Vinepal, 2015 BCCA 349; R. v. EMQ, 2015 BCSC 201, para. 157; or there was no constitutional issue raised regarding s. 719(3.1): R. v. Porter 2015 BCPC 84.  I also note that in none of the cases was there any analysis of the Chambers decision.  Furthermore, all the cases were decided prior to the Supreme Court of Canada decision in Safarzadeh-Markhali.

[93]        I have reviewed R. v. Dominic, 2009 BCPC 145 where, at para. 68, Judge Woods after having been asked to consider a decision from the Yukon Territory Court of Appeal said the following:

[94]        Crown counsel argues that Dominic is distinguishable because he argues there is no conflict in the case before me.  With respect I disagree.

[95]        The provisions at issue in Chambers and in the case before me both relate to denial of enhanced credit as a result of a decision made by a judge at the bail stage.  They were both enacted as a consequence of The Truth in Sentencing Act and the analysis of the overall context and the purpose of the law would, in my view, be virtually identical.

[96]        Furthermore, the court in Chambers identified the purpose of the legislation as restricting a specific population - those who are back in custody due to their own misconduct on bail - from obtaining enhanced credit and went on to conclude that the effect of the law was connected to its purpose. 

[97]        In Safarzadeh-Markhali, the court identified the purpose of the legislation perhaps more broadly, but importantly, found that the effect of s. 719 (3.1) caused longer periods of custody for all persons denied bail because of a previous conviction and that this caught persons “in ways that have nothing to do with enhancing public safety and security”:  para. 52.

[98]        The effect of a denial of bail because of a breach of a condition of release also causes the person to remain in custody for a longer period of time.  I must consider whether, the provision at issue in the case before me is overbroad for the same reasons.

[99]        Like the situation faced by Judge Woods in Dominic, I am unable to reconcile the decisions in Chambers and Safarzadeh-Markhali.  A decision from the Yukon Territorial Court is persuasive but I am bound by the Supreme Court of Canada in Safarzadeh-Markhali.

[100]     Even if I am wrong about this approach, following the guidance of the Supreme Court of Canada in Bedford, in my view the ruling in the Safarzadeh-Markhali decision is a major development in the law as it relates to the constitutionality of s. 719(3.1).  The principle of stare decisis is fundamental to stability but in narrow circumstances, including when there has been a major development in the law and the authority is from the highest court in Canada, lower courts are not “strait-jacketed” to following precedent.

[101]     The portion of s. 713(3.1) relating to s. 524(4) and (8) was found to be an infringement of s. 7 on the basis that it was overbroad and not justified under s. 1 in R. v. Bittern, 2016 MBCA 19 and R. v. Cote, 2016 SKQB 249.

[102]     Bittern dealt with two sentence appeals (Ms. Bittern and Mr. Kovich).  Ms. Bittern had her bail revoked pursuant to ss 524(4) or (8) because of alleged misconduct while out on bail.  Mr. Kovich was denied bail primarily because of his prior criminal record pursuant to s. 515(9.1).

[103]     For the court, Steel, J.A. considered both exemptions together and was of the view that there was no distinction between them for the purpose of constitutional analysis.  In her view, both cases dealt “with the issue of allowing the outcome of a bail decision to dictate the length of the custodial portion of an offender’s sentence”: para. 147.

[104]     She found both exemptions an unjustifiable infringement of s. 7 because “they both interfere with the fundamental principle of proportionality in the sentencing process, and because the linkage of the granting or refusal of bail to the issue of enhanced credit in the sentencing process is both arbitrary and overbroad.”

[105]     Her rationale is summarized in the following passage at para. 148-149:

[106]     This reasoning was followed in R. v. Cote, 2016 SKQB 249.  This decision was released following the Supreme Court of Canada decision in Safarzadeh-Markhali.

[107]     Mr. Cote had been charged in connection with the death of another man.  He was released on bail for that charge but while out on bail committed another offence for which he was sentenced to a period of custody.  Following that, he applied for but was denied bail pursuant to s. 524 (8).

[108]     After referring to the passage from Bittern I have just quoted above, and in concluding that the impugned provision of s. 719(3.1) was constitutionally overbroad and an unjustified violation of s. 7, Allbright J. stated at para. 54:

[109]     Turning back to H.S.S., he was denied bail pursuant to s. 524(8) because he had been charged with breaching two conditions of his bail: two charges relate to being outside his residence after his curfew time, and one charge is a breach of the condition that he not possess or consume any alcohol.

[110]     H.S.S. was homeless at the time, because he was not allowed to be in his home community - The [deleted for publication] Reserve in [deleted for publication].  He was living in a shelter in [deleted for publication].  H.S.S. is an alcoholic and has struggled with alcohol addiction for many years.

[111]     H.S.S. is not a man of financial means; he had no other place to live or person to live with and was simply unable to present an adequate release plan when he applied for bail on both occasions.  H.S.S.’s subsequent charges were not violent offences.

[112]     As a result, compared to a similarly situation individual charged with a breach of a release document but with the means to post a large cash bail, or have someone suitable act as a surety or otherwise present an adequate release plan, because of the exemption denying him the enhanced credit, H.S.S. would spend more time in custody.

[113]     For the reasons previously stated, I am of the view that Chambers is not binding upon me.  Furthermore, the decision was given before the Supreme Court of Canada decision in Safarzadeh-Markhali and the court did not have the benefit of the analysis and conclusions of the Chief Justice. 

[114]     I have previously set out the conclusions of the court in Safarzadeh-Markhali in relation to the purpose of s. 719(3.1).  I accept those conclusions as directly applicable to this case. 

[115]     The court in Safarzadeh-Markhali did not deal with the situation where someone is detained in custody pursuant to s. 524(4) or (8) and was denied enhanced credit.

[116]     The decision of the Manitoba Court of Appeal in Bittern is not binding upon me but like Allbright, J. in Cote, I consider it persuasive when combined with the analysis of McLachlin, C.J. in Safarzadeh-Markhali.

[117]     The impugned provision catches a person who is in custody because of a breach condition and who is detained because of an inability to put forward an adequate release plan.  That may relate to socio-economic factors, employment, financial status, residence or access to suitable sureties.  This provision catches those persons who are from the most vulnerable populations in our communities, including First Nations.  It catches a person such as H.S.S. who is charged with a breach of curfew and abstention condition of his bail conditions but for a variety of reasons - which have nothing to do with enhancing public safety and security - was not able to show cause why he should be released.

[118]     I conclude that the impugned provision of s. 719(3.1) is unconstitutionally overbroad as it deprives some persons of their liberty for reasons unrelated to its purpose.

[119]     The provision is not minimally impairing or proportionate.  H.S.S., if denied enhanced credit, would spend considerably more time in custody when compared to a similar person with a good release plan who was able to show cause why they should be released.  For the reasons set out by the Supreme Court in Safarzadeh-Markhali, I find that the provision is a violation of s. 7 of the Charter and the infringement is not justified under s. 1.

[120]     I do not have jurisdiction to make formal declarations that a law is of no force and effect and can go no further than find that the law is invalid: R. v. Lloyd 2016 SCC 13 (CanLII), 2016 S.C.J. No. 13, para. 15. 

[121]     H.S.S. is entitled to enhanced credit of 1.5 to 1.

[122]     His sentence is as follows:

[123]     H.S.S.’s total sentence is 760 days (2 years and 1 month).

[124]     He will have credit for pre-sentence custody based on 513 actual days in custody for a total credit of 760 days.

[125]     On Information 39497-2-C there will be the following ancillary orders:

[126]     Probation will follow for a period of two years.