R v Sharma: SCC to Determine whether Restrictions on Conditional Sentences Violate the Equality Rights of Indigenous Offenders
“The figures are stark and reflect what may fairly be termed a crisis.” Justices Iacobucci and Cory wrote these words in response to statistics on the overrepresentation of Indigenous people in the criminal justice system in 1999 (see R v Gladue,  1 SCR 688 [Gladue], para 64). Thirteen years later, Justice LeBel observed, “[T]he overrepresentation and alienation of Aboriginal peoples in the criminal justice system has only worsened” (R v Ipeelee, 2012 SCC 13 [Ipeelee], para 61). Ten years to the day on which Ipeelee was released, the Supreme Court of Canada was again called upon to consider this crisis in R v Sharma (Docket Number 39346, heard on 23 March 2022 [Sharma]).
Today, Indigenous people account for over 30% of federally-sentenced inmates while making up about 5% of Canada’s population. Indigenous women account for nearly 50% of those in women’s facilities. In the words of Jonathan Rudin, counsel for Aboriginal Legal Services (“ALS”), “This phenomenon is not a crisis because that term implies something both exceptional and transitory and what is occurring to Indigenous people is neither” (Factum of the Intervener, ALS, para 12).
In Sharma, the Supreme Court of Canada (“the Court”) will decide whether restrictions on the availability of non-custodial sentences for certain criminal offences violate Indigenous offenders’ constitutional rights under the Charter of Rights and Freedoms [Charter]. This case comment canvasses the parties’ submissions on the framework for proving violations of equality rights under s. 15(1), and the implications this decision may have for Parliament’s power to set criminal law policy in the future.
Criminal Justice Reform in 1996
Parliament introduced the principles of sentencing to the Criminal Code, RSC 1985, c C-46 as part of a major reform bill in 1996. Section 718.1 of the amended Criminal Code establishes that the fundamental principle of sentencing is proportionality to the seriousness of the offence and the degree of responsibility of the offender. Section 718.2(e) further provides that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders” (emphasis added). Three years later, the Court concluded that the aim of s. 718.2(e) is to reduce the overrepresentation of Indigenous people in the prison system, with a fundamental purpose of “treat[ing] aboriginal offenders fairly by taking into account their difference” (Gladue, para 87). Through its interpretive guidance on s. 718.2(e), the Court helped establish what is sometimes referred to as the “Gladue framework.”
Parliament also used the 1996 bill to introduce conditional sentencing orders (“CSOs”). These sanctions allow offenders to serve out their sentence in the community on certain conditions (Criminal Code, s. 742.1). Originally, CSOs were available provided the offence did not carry a mandatory minimum offence, the sentence was for two years or less, and the offender did not endanger the community. In practice, CSOs have been applied in sentencing decisions concerning Indigenous offenders, allowing the offender to access culturally relevant supports in their community.
Restrictions on the Availability of CSOs in 2012
The Harper administration introduced new restrictions on the availability of CSOs through the Safe Streets and Communities Act, SC 2012, c 1, s 34 [SSCA 2012]. This bill introduced the impugned provisions at issue in Sharma. As amended, s. 742.1(c) prohibits the use of CSOs for offences carrying a maximum prison term of 14 years or life. Section 742.1(e)(ii) prohibits them for offences carrying a maximum term of 10 years that also involve the import, export, trafficking or production of drugs.
Factual and Procedural Background
In 2016, Cheyenne Sharma pled guilty to transporting two kilograms of cocaine contrary to s. 6(1) of the Controlled Drugs and Substances Act, SC 1996, c 19 [CDSA]. This offence imposes a minimum sentence of two years and a maximum of life (s 6(3)(a.1), thus engaging the prohibitions under ss 742.1(c) and (e)(ii).
Ms. Sharma’s life story is at the heart of this case. She is a member of Saugeen First Nation. Her father was deported to Trinidad when she was young, leaving her in the care of her mother and grandmother, the latter of whom was a residential school survivor. Ms. Sharma experienced sexual assault as a teenager. She struggled with poverty and mental health and eventually resorted to sex work to get by. At the time of the offence, Ms. Sharma was 20 years old and a single mother on the brink of eviction. In these circumstances, she accepted an offer to transport drugs into Canada in exchange for $20,000 (R v Sharma, 2020 ONCA 478, paras 6-10 [Sharma 2020]).
At her sentencing hearing, Ms. Sharma argued that she should be entitled to a conditional sentence based on an appropriate consideration of the Gladue framework. She alleged that the inability to consider this option pursuant to the SSCA 2012 amendments discriminates against her on the enumerated grounds of race, contrary to s. 15(1) of the Charter. Section 15(1) protects every individual’s right to equality before and under the law and equal protection and benefit of the law without discrimination.
The sentencing judge rejected Ms. Sharma’s argument, but he did find that the mandatory minimum sentence under s. 6(1) of the CDSA violated her right to protection against cruel and unusual punishment pursuant to s. 12 of the Charter. After striking down the mandatory minimum, he entered a custodial sentence of 17 months (Sharma 2020, paras 21, 26). Ms. Sharma successfully appealed her sentence before the Ontario Court of Appeal (“ONCA”), where a majority of the ONCA held that the impugned provisions were unjustified infringements of both sections 15(1) and 7 of the Charter. The majority and dissenting reasons are explored in more detail in this post by Priyanka Sharma.
The Attorney General of Canada appealed the ONCA’s decision to the Supreme Court of Canada.
The Framework for Adjudicating Claims under s. 15(1)
Sharma will be the first major case decided under s. 15(1) since Justice Abella’s retirement. A stalwart champion of equality rights throughout her career, Justice Abella’s influence in this area of law is unmistakable, having authored or co-authored most of the Court’s s. 15 decisions in the last decade. Sharma will test her legacy. In particular, it will test the success of her efforts in Fraser v Canada, 2020 SCC 28 [Fraser] to clarify the analysis under s. 15(1) and fairly distribute the work that claimants and governments should expect to do in claims of adverse effects discrimination.
In Fraser, the Court confirmed that to prove a prima facie violation of s. 15(1), a claimant must demonstrate that the impugned law or state action:
- Creates a distinction based on enumerated or analogous grounds, on its face or in its impact; and
- Imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage (Fraser, para 27).
Canada and the intervening provincial Attorneys General argue Ms. Sharma has done too little at the first stage of the analysis to prove the impugned provisions create a distinction based on race. Justice Karakatsanis pushed Canada on this, noting that the first stage is meant to be a low bar. The Attorneys General also submitted that the ONCA erred by relying on the pre-existing disadvantage of Indigenous people (i.e., their overrepresentation in the prison system) at both stages of the s. 15(1) test in order to satisfy the requirements to show both a distinction and a discriminatory effect. Justice Brown was evidently perturbed by this, asking at various points throughout the hearing what work was then left for the claimant to do at stage 2 if Indigenous peoples’ pre-existing disadvantage was relevant at stage 1.
The Court could look to several interveners in shaping its guidance on this point. For instance, the Queen’s Prison Law Clinic (“QPLC”) urged the Court to attend to the material impacts of prison on Indigenous offenders. The QPLC explained that Indigenous offenders are more likely to receive higher security classifications, spend more time in segregation, serve more of their sentence behind bars, and be involved in use of force incidents (Factum of the Intervener, QPLC, para 4). The distinction created by the impugned provisions, they suggest, is not simply that more Indigenous offenders are likely to be incarcerated in the absence of CSOs, but that an Indigenous person’s qualitative experience of prison is itself measurably worse.
With respect to the second stage of the s. 15(1) test, both the Native Women’s Association of Canada (“NWAC”) and the Ontario Native Women’s Association (“ONWA”) insisted on applying a wider lens. The NWAC linked together the dual crises of Indigenous overrepresentation in both prison and foster care. It submitted that ever since the residential school system there has been a “child-welfare-to-prison pipeline” in this country that perpetuates an intergenerational cycle of state-enforced separation for Indigenous communities. The NWAC submitted that the ability to serve out sentences in the offender’s community was important for reconciliation, and that access to rehabilitative customs and traditions is an Aboriginal right under s. 35(1) of the Constitution Act, 1982 (Factum of the Intervener, NWAC, paras 19, 23-24). The ONWA offered that it is necessary to consider the impugned laws’ impact on Indigenous legal orders, and on the roles and responsibilities Indigenous women hold within these traditions. According to the ONWA, any negative interference would constitute the exacerbation of a disadvantage, satisfying stage 2 of the s. 15(1) test.
The Scope of Parliament’s Power to Set Criminal Law Policy
Justices Rowe, Moldaver, Brown (and expect Côté) seem unpersuaded by, even hostile to, the arguments for limits on Parliament’s right to punish. Task will be assuring the other 5 that the sky won’t fall. #Sharma— Debra Parkes (@DebraParkes) March 23, 2022
With respect to the Respondent’s submissions, the main concern from the bench was the potential implications that upholding the ONCA decision could have on Parliament’s ability to make criminal law policy in the future. A key question was whether the Respondent is seeking to constitutionalize the Gladue framework by mandating access to CSOs.
The David Asper Centre for Constitutional Rights (“DACCR”) argued that while the state bears no obligation to fix inequality at large, it does have a responsibility to ensure the operation of its laws does not create or exacerbate inequality (Factum of the Intervener, DACCR, para 8). The DACCR then referenced Justice Rowe’s comments at paragraph 145 of R v Chouhan, 2021 SCC 226 where the Justice observed that modifying or repealing statutory provisions can “give rise to unconstitutional effects” without the provisions themselves being constitutionally entrenched. On these facts the DACCR argued that the limitation on CSOs pursuant to the SSCA 2012 modifies the Gladue framework by restricting judicial discretion in the meting out of proportionate sentences. This has an adverse effect on the substantive equality of Indigenous offenders and gives rise to the unconstitutional effect the Court is here compelled to remedy.
The Canadian Bar Association (“CBA”) directly argued that s. 718.2(e) has quasi-constitutional status because it gives effect to substantive equality, just as quasi-constitutional human rights and privacy legislation give effect to Charter rights. The CBA posited that these kinds of laws demonstrate the role of legislatures as partners in the security, protection and promotion of Charter rights (Factum of the Intervener, CBA, para 9). It suggested that Parliament could maintain the impugned provisions and make criminal law more stringent without violating s. 15 if it built in more residual judicial discretion. One way of doing this would be to make custodial sentences a presumption for serious offences, but one rebuttable through things like an offender’s Gladue factors (Factum of the Intervener, CBA, para 23).
The Respondent’s position comes down to this: Parliament can stay onside of s. 15(1) as long as it ensures that the integrity of the Gladue methodology—and judicial discretion to craft a proportionate, non-custodial sentence —remain intact. Both parties agreed at different points that s. 718.2(e) guarantees a process, not an outcome. In this way, the CSO provisions could be repealed entirely, provided that Parliament scrutinize and remedy any adverse effects the repeal could have on substantive equality in the sentencing process.
If the Respondent succeeds on this point, I would be curious to see if there is any impact on the Charter statements the Minister of Justice is required to table in respect of every Government bill, including criminal law bills, pursuant to the Department of Justice Act, RSC 1985, c J-2. In addition, the Canadian government is now required to review its laws for consistency with the minimum international human rights standards set out in the United Nations Declaration on the Rights of Indigenous Peoples (“Declaration”). Some commentators have recommended amending the Department of Justice Act to impose a new duty on the Minister of Justice to issue statements on government bills’ compliance with the Declaration, just as it does with the Charter.
Listening to the arguments on Parliament’s power to make criminal law policy, I found myself thinking about the case of Canada v PHS Community Services Society, 2011 SCC 44 [PHS]. At issue in PHS was the Minister of Health’s decision not to renew a Vancouver supervised injection site’s exemption from possession and trafficking offences under the CDSA. The Court unanimously held that had the Minister’s decision not been restrained by an interim order at trial, it would have prevented users from safely accessing critical services at PHS, threatening their health and lives (PHS, para 136). This constituted a violation of users’ s. 7 right not to be deprived of life, liberty and security of the person. Given some Justices’ discomfort with wading into policy decisions in Sharma, it is notable that to remedy the rights infringement in PHS, the Court went beyond issuing a declaration and actually ordered the Minister to grant an exemption.
The issue of addiction is, like Indigenous overincarceration, complex and one that intersects with many forms of pre-existing disadvantage. PHS will likely continue to limit future decisions of the Minister of Health for as long as addiction persists, assuming drugs remain criminalized and supervised injection sites continue to be among the most effective forms of harm reduction. As ALS aptly put it, the Attorneys’ General complaint of “forever restrictions” on Parliament’s authority assumes that Indigenous mass incarceration is here to stay. “We refuse to believe that is the case,” Mr. Rudin stated emphatically in oral submissions. “Once systemic discrimination vanishes from the criminal justice system, then Parliament is free to do whatever it wants. But asking that Parliament [and] the legislation not exacerbate existing systemic discrimination against Indigenous people … is [until then] not too much to ask.”
It remains to be seen whether Parliament will take up Bill C-5 before the Court hands down their decision in Sharma. The bill is currently at First Reading, but if passed, clause 14 will replace or repeal the impugned provisions in this case. One positive indicator is that in his mandate letter to the Minister of Justice, the Prime Minister singled out the passage of Bill C-5 as a priority for this government. Though not a substitute for any constitutional obligation the Court may find in Sharma, Bill C-5 suggests that Parliament is engaging in a good faith dialogue with the courts on the issue of Indigenous overincarceration.
(Photo: “Prison inner court” by x1klima is marked with CC BY-ND 2.0.)