R. v. Sharma puts SCC's commitment to facing injustice against Indigenous people to the test

The Supreme Court of Canada, through its decisions in cases like Gladue, Ipeelee, and Evert, has forced the justice system and all Canadian society to face the devastating and generational impacts of colonialism, racism, and discrimination toward Indigenous people.

On Mar. 23, the Supreme Court of Canada heard the Crown appeal in Sharma. We will soon see if the court is willing to back up its words with action.

Sharma was a young Indigenous woman who pleaded guilty to importing two kilograms of cocaine. She had no criminal record and a tragic personal history that is all too common for Indigenous offenders. She was a single mother living in poverty when she committed her offence. Her grandmother was a victim of residential schools. Sharma had experienced sexual violence, was taken into foster care and had limited educational opportunities. She was a survivor who made a mistake but had turned her life around to make a good home for her family.

Federal prosecutors were insistent on the imposition of a crushing jail sentence, which would have inevitably separated Sharma from her community, culture, and family, continuing a tragic cycle of trauma.

Unfortunately for Sharma, jail seemed to be the only sentencing option available until the Ontario Court of Appeal found the federal law that precluded the non-jail sentence of house arrest unconstitutional.

The federal government appealed that decision. As the Supreme Court considers the case, let’s revisit how we found the government pulling out all the stops to incarcerate a young Indigenous woman.

In 1999 the Supreme Court of Canada, in the case of Gladue, declared that there was a crisis in the Canadian criminal justice system. Indigenous people were dramatically overrepresented in prison — the non-Indigenous rate of imprisonment was 98.6 per 100,000, but the Indigenous rate was 510 per 100,000 (about 12 percent of all federal inmates).

In a powerful judgement, which acknowledged the centuries of racism, violence, discrimination, and state-sponsored abuse inflicted on Indigenous people, the court recognized the resulting intergenerational trauma, poverty, substance abuse, and marginalization.

Speaking with a unified voice, the Supreme Court said that although the justice system was poorly situated to remedy many of the systemic social problems faced by Indigenous people, sentencing judges have an important role in remedying injustice. These judges determine if an offender will go to jail or whether other sentencing options can be used.

The court talked about conditional sentences, the same issue it is considering in Sharma.

A conditional sentence is a jail sentence that an offender can serve in the community, most commonly through house arrest of up to two years. But conditional sentences are far from a get-out-of-jail-free card.

The Supreme Court has repeatedly confirmed that conditional sentences provide significant denunciation and deterrence. The sentences can be quite restrictive and punitive, but they are also rehabilitative. Unlike traditional jail, conditional sentences come with strings attached. Offenders may be required to take counselling, seek employment, perform community service, and make reparations to the victims of their offence.

Unlike traditional jail sentences, the offender is monitored by a conditional sentence supervisor. Offenders may even have to attend before the sentencing judge throughout their sentence, giving the court an almost unheard-of ability to finetune the conditions or even send the offender to real jail to ensure that the sentencing principles are best achieved.

In 2012, in the case of Ipeelee, the Supreme Court noted that since the Gladue decision in 1999, Indigenous admissions to custody had increased by 3 percent while non-Indigenous admissions declined by 22 percent. 

That same year the Harper government passed the Safe Streets and Communities Act, which restricted the availability of conditional sentences for many deserving offenders, including Sharma.

So, it should come as no surprise that today the situation is worse than ever, with Indigenous Canadians accounting for 31 percent of admissions to provincial custody and 29 percent of admissions to federal custody.

In 1999, Indigenous Canadians were five times more likely to be imprisoned than non-Indigenous Canadians. Today, Indigenous Canadians are almost nine times more likely to be detained than non-Indigenous Canadians.

If Indigenous incarceration was a crisis in 1999, there are no words to describe the current state of affairs.

In its intervention in the Sharma case, Aboriginal Legal Services said: “There can be no question that what Indigenous Canadians are now experiencing is mass incarceration. This phenomenon is not a crisis because that term implies something both exceptional and transitory and what is occurring to Indigenous people is neither.”

The current federal government says that no relationship is more important than that with Indigenous Canadians. It introduced legislation to roll back the Conservative’s conditional sentence restrictions, first in February 2021 and then again following the election in December 2021.

But the first bill died on the order paper when Trudeau called the election, and the new legislation was only recently referred to committee and could take months to wind its way towards becoming law.

In 2012 Justin Trudeau, then the MP for Papineau, voted against the Harper government’s restrictions on conditional sentences availability.

Now, his lawyers are fighting to maintain those laws in the Supreme Court, while the legislation that would have made the Crown appeal moot plods through parliament.

Sharma is now before Canada’s highest court, which over two decades ago said that sentencing judges have an important role in remedying injustice against Indigenous people. Now that same court can make sure sentencing justices have the tools to do just that.