R. v. Sharma, 2020 ONCA 478

CONDITIONAL SENTENCES - S. 7 CHARTER - S. 15 CHARTER - INDIGENOUS OFFENDERS

What you need to know:

The ONCA has struck down two Criminal Code provisions, s. 742.1(c) and s. 742.1(e)(ii), which removed the availability of conditional sentences for particular types of offences for violating sections 7 and 15 of the Charter. The Court of Appeal held that neither violation was saved under s. 1 of the Charter.

TERMINOLOGY

Conditional Sentence

A conditional sentence is a term of imprisonment served in the community rather than in a custodial setting.

Gladue Principle

The “Gladue Principle” refers to the directive in s. 718.2(e) of the Criminal Code that courts pay particular attention to the circumstances of Indigenous people when sentencing Indigenous offenders. This amendment to the Code was enacted to address the overincarceration and overrepresentation of Indigenous people in the Canadian legal system. Its purpose (as well as the breadth of its application) was affirmed in the landmark case R v Gladue from which the principle now takes its name.

BACKGROUND

The Appellant, Cheyenne Sharma, is a Canadian Indigenous woman who was charged under s. 6(1) of the Controlled Drugs and Substances Act after importing cocaine into Canada from Surinam. Ms. Sharma pleaded guilty and was sentenced to 17 months imprisonment. Section 6(1) of the CDSA carries a mandatory minimum sentence of 2 years.

At her sentencing hearing, Ms. Sharma successfully challenged the constitutionality of the mandatory minimum. The sentencing judge held that it constituted cruel and unusual punishment contrary to s. 12 of the Charter.

Ms. Sharma also challenged the constitutionality of s. 742.1(c) and s. 742.1(e)(ii) on the basis that they violated her section 7 and 15 Charter rights. The sentencing judge dismissed these two issues.

RELEVANT LEGISLATIVE PROVISIONS

Conditional sentences came into force in 1996 as a way to encourage restorative justice and to reduce use of prison sentences where appropriate. When first enacted there were 3 conditions circumscribing the availability of conditional sentences:

  • offence did not carry a mandatory minimum sentence

  • sentence imposed was less than 2 years; and

  • serving the sentence in the community would not pose a danger to the community

In 2012, the Safe Streets and Communities Act, SC 2012 c 1, was enacted amending s. 742.1 of the Criminal Code to make conditional sentences unavailable for offenders convicted of certain categories of offences:

  • Subsection 742.1(c) removes the availability of conditional sentences for offences that carry a maximum term of imprisonment of 14 years or life.

  • Meanwhile, subsection 742.1(e)(ii) removes the availability of conditional sentences for offences “involv[ing] the import, export, trafficking or production of drugs” that have a maximum term of imprisonment of 10 years.

ISSUES ON APPEAL

On appeal, Ms. Sharma raised the following issues concerning s. 742.1(1)(c) and s. 742.1(e)(ii):

  • They violate the s. 15 rights of Indigenous offenders by discriminating on the basis of race;

  • They violate her s. 7 liberty rights because they were overbroad and arbitrary.

  • The infringements cannot be saved under s. 1

SECTION 15

Section 15 is focused on substantive equality, its focus is on “laws that draw discriminatory distinctions, that is, distinctions that have the effect of perpetuating arbitrary disadvantage based on an individual’s membership in an enumerated or analogous group” (See Kahkewistahaw First Nation v. Taypotat at para 18).

 

The analysis under s. 15 is two-fold (as most recently set out in Taypotat):

(1)  Does the impugned law, on its face or in its impact, create a distinction on the basis of an enumerated or analogous ground?

(2)  Does the impugned law fail to respond to the actual capacities and needs of the members of the group and instead imposes burdens or denies benefits in a manner that has the effect of reinforcing, perpetuating or exacerbating their disadvantage?

 The onus on the claimant is to “demonstrate that the law at issue has a disproportionate effect on the claimant based on his or her membership in an enumerated or analogous group.”

 The Court of Appeal held that the impugned provisions:

(1)  Created a distinction on the basis of an enumerated or analogous ground; and

(2)  Denied Ms. Sharma a benefit which had the effect of reinforcing, perpetuating, and exacerbating her disadvantage as an Indigenous person.

The overincarceration of Indigenous people is a manifestation of substantive inequality which prompted Parliament to create community-based sentencing alternatives such as conditional sentences. The conditional sentence was a mechanism by which Parliament was redressing the inequalities Indigenous people face in sentencing. The impugned provisions circumscribe the availability of this mechanism thereby creating a distinction between Indigenous and non-Indigenous offenders.

Prior to the 2012 amendments, Ms. Sharma would have been a prime candidate for a conditional sentence: her tragic personal background, her lack of criminal record, her need to care for her young child, her guilty plea. Canadian courts have long taken judicial notice of the historic disadvantages faced by Indigenous people in Canada and their overrepresentation in the justice system. There is significant evidence of how legacies of colonialism and racism leads to victimization of Indigenous women which in turn leads to criminal acts, particularly drug crimes.

Conditional sentences play a crucial role in reducing the overincarceration of Indigenous people in Canada. The effect of removing the availability of conditional sentences is to give judges fewer tools in sentencing Indigenous offenders and to undermine the purpose of the principles enshrined in Gladue and s. 718.2(e) thereby exacerbating and perpetuating the discriminatory disadvantages faced by Indigenous offenders in the sentencing process.

SECTION 7

All parties agree that Ms. Sharma’s liberty has been deprived as she was sentenced to jail. The issue is whether this deprivation was in accordance with the principles of fundamental justice. Ms. Sharma’s argues that the deprivation is both arbitrary and overbroad.

Arbitrariness asks whether there is a direct connection between the purpose of the law and the impugned effect on the individual, in the sense that the effect on the individual bears some relation to the law’s purpose. There must be a rational connection between the object of the measure that causes the s. 7 deprivation, and the limits it imposes on life, liberty, or security of the person. A law that imposes limits on these interests in a way that bears no connection to its objective arbitrarily impinges on those interests.

 Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose. In this sense, the law is arbitrary in part. At its core, overbreadth addresses the situation where there is no rational connection between the purposes of the law and some, but not all, of its impacts.

The majority concluded that the purpose of the two impugned provisions was to maintain the integrity of the justice system by ensuring that offenders who commit serious offences receive prison sentences.

The Court of Appeal disagreed that the provisions were arbitrary. Parliament’s objective in circumscribing the availability of conditional sentences was to ensure that offenders who commit serious offences receive jail sentences. The effect of removing aa conditional sentence option is not arbitrary because it coincides with Parliament’s purpose of substituting prison sentences where conditional sentences were previously available.

The Court, however, did find the impugned provisions to be overbroad, holding that there was no rational connection between the impugned provisions’ purpose and some of their perhaps unintended effects. While the purpose is to ensure that serious offences always attract a custodial sentence, the provisions, in effect, capture a broad ambit of offences and underlying conduct that range from low to high in terms of seriousness. For example, offences like price-fixing, false advertising, and deceptive telemarketing all carry a maximum sentence of 14 years.

Additionally, the court found that the “practical impact” of the provisions was to alter the sentencing landscape most directly for those offenders convicted of an offence with a high maximum penalty who deserved penalties at the low end of the sentencing range by denying them the availability of conditional sentences.

SECTION 1

The Court concluded that neither violation was saved under section 1 of the Charter.

CONCLUSION

As a result, the majority of Court of Appeal struck down both s. 742.1(c) and s. 742.1(e)(ii). The Court concluded it is up to Parliament to determine to what extent, if at all, to re-enact these provisions in compliance with the Charter.

The Court set aside Ms. Sharma’s sentence of 17 months and imposed a conditional sentence of 24 months.

Read the full decision here.

Note: This summary was co-written by Ariel Wyse & Sara Little. Ariel Wyse is a 2L student at Windsor Law. Her primary areas of interest are criminal law, immigration law and civil litigation. This post was copy-edited by Sara Little.

Sara Little