SCC finds Criminal Code provisions denying conditional sentences for certain crimes constitutional

A majority of the Supreme Court of Canada has found that Criminal Code provisions prohibiting conditional sentences for certain offences did not infringe an Indigenous woman’s equality rights, because the provisions do not disproportionately impact Indigenous offenders.

The 5-4 ruling in R. v. Sharma was released Friday morning. In the majority, Justices Russell Brown, Malcolm Rowe, Richard Wagner, Suzanne Côté, and Michael Moldaver found that ss. 742.1(c) and 742.1(e)(ii) of the Criminal Code did not violate Cheyenne Sharma's s. 7 and s. 15 Charter rights. The provisions deny a conditional sentence to those convicted of offences carrying a maximum sentence of at least 14 years or those with a maximum sentence of 10 years which involve the import, export, trafficking or production of drugs.

“The biggest difference between the majority and the dissent in this case is that the majority seems blissfully unaware of the crisis of over-incarceration of Indigenous people that exists in this country today,” says Nader Hasan, counsel for Sharma.

“Indigenous women account for 50 percent of the jail and prison population, even though they are less than 5 percent of the population, at large, in this country.”

Under s. 15, Canadians are guaranteed equality under the law, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. The court assessed Sharma’s s. 15 claim in a two-step process. First, they looked at whether the provisions create a distinction between Indigenous and other offenders. Second, the court asked whether that distinction imposed a burden or denied a benefit in a manner that reinforced, perpetuated, or exacerbated a disadvantage.

The majority said that it did not need to consider the second step, because Sharma had not satisfied her burden in the first. “While the crisis of Indigenous incarceration is undeniable, [Sharma] adduced no statistical information to demonstrate that the impugned provisions create or contribute to increased imprisonment of Indigenous offenders, relative to non‑Indigenous offenders,” said Justices Brown and Rowe, who wrote the reasons for the majority.

For the minority, ss. 742.1(c) and 742.1(e)(ii) infringe s. 15 because of their impact on ss. 718.2(e) and 742.1. In 1996, Parliament enacted s. 718.2(e), which directed courts to consider “all available sanctions other than imprisonment” for all offenders, “with particular attention to the circumstances of aboriginal offenders.” Parliament also introduced conditional sentences at that time with s. 742.1.

According to the minority, the impugned provisions impaired an accommodation: “the remedial function of s. 178.2(e).” Sections 718.2(e) and 742.1 “provided an ameliorative measure” which facilitated the “substantive equality mandate” in s. 718.2(e) and the reduction of Indigenous overincarceration. Prohibiting the use of conditional sentences for Indigenous offenders undermines the “different sentencing methodology that was animated by their unique needs and circumstances.” Mixed with 718.2(e) and 742.1, ss. 742.1(c) and 742.1(e)(ii) “necessarily impact Indigenous offenders differently.”

Under s. 7 of the Charter, Canadians are guaranteed the right not to be deprived of life, liberty and security of the person, except in accordance with the principles of fundamental justice. While provisions requiring her to serve a sentence in prison rather than in the community clearly limit Sharma’s liberty interests, the question for the court was whether they do so in a manner aligned with the principles of fundamental justice. At the Ontario Court of Appeal, the majority had found that they did not, that they were arbitrary and overbroad relative to their purpose.

In their s. 7 analysis, the majority and minority disagreed on whether the provisions’ use of maximum sentences as the gauge for the seriousness of an offence created a disconnect between the impact of the provisions and their purpose. The majority found that maximum sentences are an appropriate proxy for an offence’s seriousness. For the minority, maximum sentences are flawed – they “only show that an offence is potentially serious, not that it is necessarily so.”

The majority found that there was an obvious connection between the provisions’ purpose – to “enhance consistency in the conditional sentencing regime by making imprisonment the typical punishment for certain serious offences” – and their effect: offenders convicted of those offences serving their sentences in jail. The minority found the provisions overbroad for exceeding their purpose by applying to offences on the lowest range of severity, constituting a prima facie infringement of s. 7.

The SCC’s majority agreed with the Crown that Indigenous over-incarceration was a “pre-existing disadvantage,” and that the law “has nothing to do with that disadvantage,” says Hasan, who acted for Sharma with Stephen Aylward. Both are litigators at Stockwoods LLP, one of The Top Litigation Firms in Canada.

“But of course, it's the law, it's the state, that created this disadvantage, through colonialism, through residential schools,” he says. “The conditional sentence and the Gladue framework were aimed at remedying that disadvantage.”

“For the majority to say that the disadvantage that Indigenous folks face in the criminal justice system is not created by the law, that really seems to be devoid of the context of reality.”

Noah Wernikowski, counsel for an intervenor, the Attorney General of Saskatchewan, says that the SCC’s s. 15 analysis addresses questions opened by Fraser v Canada (2020 SCC 28), “the seminal case on adverse effect discrimination claims.”

“It helps bring clarity to a notoriously tricky corner of constitutional law. It may come to stand alongside Andrews, Law, Kapp, Alliance and Fraser as one of the most important Supreme Court cases on s. 15.”

The Sharma decision is consistent with existing jurisprudence, he says.

“The Supreme Court has consistently held that Parliament has a legitimate role to play in the sentencing process. For example, it has centred the s. 12 inquiry on the highly deferential concept of gross disproportionality and has rejected proportionality as a principle of fundamental justice in the context of s.7. It has refused to constitutionalize unfettered judicial discretion at sentencing and has said that Parliament’s choices with respect to sentencing policy must be shown deference by reviewing courts.”

“The main issue in this case was not whether conditional sentence orders should be legally available for certain offences, but whether the constitution prevents Parliament from making them unavailable,” says Wernikowski. “The Court decided ss. 7 and 15 do not bind Parliament in this way.”

In many ways, the court’s blocs were dealing with different issues, says Jonathan Rudin, counsel for Aboriginal Legal Services, which has been an intervenor in the case since the Superior Court level.

“The minority decision grounded itself in realities of Indigenous mass incarceration, and the majority didn't really mention that at all,” he says. “It was striking to see those two gaps. From our perspective, the only way the majority could come to the conclusions that they came to was to ignore the realities that were before them in the case and are before them every day in the newspapers.”

Rudin adds that Moldaver, who was among the majority, has now retired. With a new court, some of the issues contested in Sharma, including the s. 15 analysis, have not been laid to rest for good.

The majority suggests that on occasions where the legislation prevents judges from ordering a conditional sentence, that they should consider using suspended sentences, says Rudin. That was an “odd suggestion” because the SCC has been “fairly clear” in the past that the two serve different purposes, he says.

“It's now incumbent on defence counsel, if your client would have been eligible for a conditional sentence but can't get one, to pitch a suspended sentence,” says Rudin. “Then we're going to have to see those cases wind their way up through the courts, as crowns appeal and say that this is an improper use of suspended sentences.”

Sharma, an Ojibwa woman and member of the Saugeen First Nation, was caught with 1.9 kg of cocaine in her suitcase when she arrived at Toronto Pearson Airport from South America in 2015. Sharma was 20 years old at the time, had no prior criminal record, and said that her partner had promised to pay her $20,000 to smuggle the drugs. At the time, she said, she was two months behind on rent, facing eviction, and as a single mother she agreed to the scheme to avoid homelessness.

Sharma’s pre-sentence Gladue report said her grandmother was a residential school survivor, her mother had been in foster care, and she had been sexually assaulted and dropped out of school because of financial difficulties.

At trial, Sharma sought a conditional sentence, which, under s. 742.1 of the Criminal Code, allows offenders to serve their sentences at home, under surveillance, rather than in prison. But the 2012 amendments, which were enacted through former Prime Minister Stephen Harper’s Safe Streets and Communities Act, prevented her from receiving one. Her sentencing judge found a conditional sentence was unavailable, dismissed her Charter challenges, and gave her an 18-month sentence. She appealed, and a 2-1 majority of the Ontario Court of Appeal found ss. 742.1(c) and 742.1(e)(ii) discriminate against Indigenous offenders on the basis of race and are arbitrary and overbroad relative to their purpose.