In 2016, the respondent Ms. Sharma, an Indigenous woman, pled guilty to importing two kilograms of cocaine, contrary to s. 6(1) of the Controlled Drugs and Substances Act (“CDSA”). Ms. Sharma sought a conditional sentence of imprisonment, and challenged the constitutional validity of the two-year mandatory minimum sentence under s. 6(3)(a.1) of the CDSA and of ss. 742.1(b) and 742.1(c) of the Criminal Code, which make conditional sentences unavailable in certain situations. The sentencing judge found that the two-year mandatory minimum sentence under s. 6(3)(a.1) of the CDSA violated s. 12 of the Charter and could not be saved under s. 1. The judge therefore declined to address the constitutional challenge to s. 742.1(b), and he dismissed the s. 15 challenge to s. 742.1(c). Ms. Sharma was sentenced to 18 months’ imprisonment, less one month for pre-sentence custody and other factors. Ms. Sharma appealed and, with the Crown’s consent, also brought a constitutional challenge to s. 742.1(e)(ii) of the Criminal Code. A majority of the Court of Appeal allowed the appeal. Sections 742.1(c) and 742.1(e)(ii) were found to infringe both ss. 7 and 15(1) of the Charter, and the infringement could not be justified under s. 1. The majority held that the appropriate sentence would have been a conditional sentence of 24 months less one day, but as the custodial sentence had already been completed, a sentence of time served was substituted. Miller J.A., dissenting, would have dismissed the appeal and upheld the sentence of imprisonment.

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