“Unsolicited, unnecessary, and contrary to stare decisis“: Dissent Criticizes SCC’s Majority Opinion in R v Sharma
In R v Sharma, 2022 SCC 29 [“Sharma”], the Supreme Court of Canada [“SCC”/”the Court”] upheld the constitutionality of provisions that restricted the availability of conditional sentences. This decision marks a break from the SCC’s recent trend of overturning amendments to the Criminal Code, RSC 1985, c C-46 [“Code”] made during the Harper era.
Conditional sentencing allows offenders who satisfy relevant statutory criteria to serve their sentences under surveillance in their communities. The impugned provisions make conditional sentences unavailable for certain offences, including those with a maximum sentence of 14 years or life and those with mandatory minimum prison sentences. In the case at hand, an Indigenous woman plead guilty to one such offence.
Two weeks after the Court’s 5-4 split decision in Sharma, the Senate passed Bill C-5 [“Bill”]. The Bill repeals a third of Canada’s mandatory minimum prison sentences, making the provisions challenged in Sharma inapplicable. The Bill was intended to enable judges to make sentencing decisions that can account for the impact of systemic racism.
This development renders the Court’s decision in Sharma moot, at least insofar as it pertains to the constitutionality of the challenged provisions. What will leave a lasting impact is the Court’s s. 15 analysis, which is likely to throw the equality rights jurisprudence–which has gone through numerous iterations already–into further uncertainty.
Ms. Sharma, then a 20-year-old member of the Saugeen First Nation, was found with 1.97 kg of cocaine in her suitcase when she arrived in Toronto on an international flight in June 2015. She told police her partner had promised her $20,000 to travel with the suitcase. Two months behind on rent, facing eviction, and concerned for her infant daughter, she agreed.
Ms. Sharma was charged with importing a prohibited substance, contrary to s. 6(1) of the Controlled Drugs and Substances Act, SC 1996, c 19 [“CDSA”]. She had no prior criminal record.
Ms. Sharma’s Gladue report detailed how she was sexually assaulted and dropped out of school due to financial hardship. At age 17, she became a single mother. Her experiences are burdened by intergenerational trauma—Ms. Sharma’s grandmother was a residential school survivor, and her mother was in foster care for a time.
Contextualizing the Case
Indigenous women account for almost half of the incarcerated female population in federal prisons, despite Indigenous people making up less than five percent of the general population. Indigenous incarceration rates have not dropped despite a fall in the proportion of non-Indigenous offenders, partly because Indigenous people are less likely to be granted parole or conditional release. The proportion of Indigenous offenders convicted of crimes carrying mandatory minimum penalties also increased over the last decade.
The Court called the over-incarceration of Indigenous people “a crisis” in 1999—a sentiment it reiterated in Sharma (paras 3, 142). But as the Aboriginal Legal Services stated in its intervener’s factum, the term “implies something both exceptional and transitory and what is occurring to Indigenous people is neither” (para 12). Mass incarceration of Indigenous people is a symptom of the institutionalization of racism that is part of Canada’s colonial history.
Ms. Sharma brought Charter challenges against s. 6(3)(a.1) of the CDSA, which mandates a minimum two-year prison sentence, and ss. 742.1(c) and 742.1(e)(ii) of the Code, which made conditional sentences unavailable in her case. The Crown opted to disregard the minimum sentence and recommended an 18-month sentence.
Despite this, the sentencing judge held that the CDSA provision was grossly disproportionate and violated s. 12 of the Charter, which guarantees the right not to be subjected to cruel and unusual punishment. The judge sentenced Ms. Sharma to 18 months imprisonment. Ms. Sharma appealed the decision and sought a 24-month conditional sentence instead.
A majority of the Court of Appeal for Ontario [“ONCA”] held that the provisions infringed ss. 7 and 15 of the Charter, which, respectively, guarantee the right to life, liberty, and security of the person and the right to equal protection and benefit of the law. The ONCA held that the provisions breached s. 15 by impeding the operation of s. 718.2(e) of the Code. Section 718.2(e) provides a legal benefit by requiring judges to review reasonable alternatives to imprisonment for all offenders, paying particular attention to the circumstances of Indigenous offenders. In restricting the availability of conditional sentences, the impugned provisions override a remedial provision and exacerbate the systemic disadvantages that Indigenous offenders face.
The ONCA also held that the provisions were overbroad and violated s. 7. Contrary to Parliament’s intention of ensuring prison terms for offenders who committed serious offences, the provisions captured those whose conduct did not fall into that category.
The issues on appeal to the SCC were whether the impugned provisions breached ss. 7 and 15 of the Charter.
The SCC’s Decision
A slim majority of the SCC upheld the constitutionality of ss. 742.1(c) and 742.1(e)(ii) of the Code, while the dissent held that both provisions violated ss. 7 and 15.
The majority held that maximum sentences are a reasonable proxy for determining a crime’s seriousness. Therefore, the provisions were not overbroad and did not breach s. 7. On the s. 15 challenge, the majority held that Ms. Sharma had not adduced statistical evidence showing that the provisions created or exacerbated a disproportionate impact on Indigenous offenders relative to non-Indigenous offenders. They noted that s. 718.2(e) of the Code does not guarantee a non-carceral sentence to Indigenous offenders, but simply directs judges to consider Indigenous offenders’ circumstances.
Writing for the dissent, Justice Karakatsanis agreed with the ONCA that the provisions breached s.7. She also found that the provisions violated s. 15 by impairing a benefit provided by s. 718.2(e), exacerbating historical disadvantages imposed on Indigenous people.
The dissent was particularly searing in its response to the majority’s treatment of the s. 15 analysis, and found that the majority needlessly “dislodge[d] foundational premises of the existing jurisprudence” (Sharma, para 206). According to the dissent, the majority’s opinion revises the s. 15 test by raising the threshold required for claimants to make successful claims. The dissent also criticized the majority for, among other things, preemptively precluding the possibility of positive constitutional obligations on the state to remedy social inequalities and diminishing the role of interveners.
In landmark decisions like R v Gladue  1 SCR 688, and R v Ipeelee 2012 SCC 13, the SCC emphasized the judiciary’s role in employing sentencing as a remedial tool to ameliorate historical and ongoing injustices inflicted on Indigenous people in Canada. Sharma represented an opportunity for the Court to consider the impact of mandatory minimum prison sentences on Indigenous offenders and its Charter implications.
Regrettably, the majority opinion reveals a reluctance to scrutinize the constitutionality of sentencing laws to allow judges to craft fit sentences. Instead, the SCC claimed that Parliament is not bound by past policy decisions and is entitled to deference in passing sentencing laws.
Scrutinizing Sentencing Laws With Deference
It is disappointing to see the majority use deference to Parliament as a reason to uphold the impugned provisions when it has rightly struck down provisions that similarly had the effect of impeding courts’ ability to deliver fit sentences in the past. A week before Sharma, in R v Ndhlovu 2022 SCC 38 (Ndhlovu), the Court found that provisions which removed judicial discretion in determining whether to require registration of sex offenders violated s. 7.
For the majority, the distinction between the two cases may be that the impugned provisions in Ndhlovu removed judicial discretion entirely, while those in Sharma only eliminate the availability of conditional sentences leaving the option of lesser custodial sentences open to judges. But as the dissent notes, this fails to account for the fact that non-custodial sentences are particularly important in the context of sentencing Indigenous offenders. In fact, reducing the over-representation of Indigenous people in Canadian prisons was the impetus behind s. 718.2(e), which requires judges to consider alternatives to imprisonment when sentencing Indigenous offenders. Permitting conditional sentences also accommodates Indigenous conceptions of justice that emphasize restorative justice over retribution.
The majority criticizes the dissent’s consideration of s. 718.2(e), noting that doing so elevates a legislative provision to the status of a constitutional imperative. But s. 718.2(e) itself need not be a constitutional imperative for the removal of its benefit to disproportionately impact a protected group in a manner that impairs equality rights–a constitutional right under the Charter. Moreover, as the dissent notes, reconciliation is a constitutional imperative, and courts should be permitted to consider the impact of sentencing laws on inequalities affecting Indigenous offenders where reasonable.
Therefore, the majority does not adequately respond to the dissent’s statement that “there is nothing novel, unwieldy, or unsound” about courts considering the constitutionality of legislation relating to crime and punishment (Sharma, para 177). As in Ndhlovu, the Court would have been justified in finding that Parliament failed to employ constitutionally sound methods to achieve its policies, for instance, by retaining judicial discretion to allow conditional sentencing where reasonable. Parliament’s choice to impose harsh punishment should not be owed deference if it is a decision made contrary to the constitution.
(Substantive) Equality Rights Jurisprudence in Disarray
The majority’s s. 15 analysis reiterates current jurisprudence but applies it in a manner that imposes a greater burden on the claimant than is required by the cited precedents.
In canvassing the case law, the majority stated that the claimant’s evidentiary burden in the first step need not be onerous. Ideally, evidence about the full context of the group’s situation and outcomes of the impugned law should be adduced. However, proving this and the causal connection may be satisfied by a reasonable inference and, if obvious, does not require evidence. In the second step, courts must examine a broad range of harms to protected groups, including the impact of colonialism on Indigenous incarceration. Again, courts may make inferences based on historical and present-day realities.
It is puzzling, then, that the majority holds that the s. 15 claim turns on the fact that Ms. Sharma did not adduce specific evidence when the over-incarceration of Indigenous people and its disproportionate impact is widely known and accepted by courts. The majority criticizes the ONCA for accepting broad evidence of historical disadvantage despite the fact that the case practically calls out for courts to do precisely that. The majority also held that, in considering the discriminatory effect of removing s. 718.2(e) benefits for a protected group, the ONCA erred in failing to delineate Ms. Sharma’s evidentiary burden at each step of the test. The majority goes so far as to insist that the evidentiary burden requires Ms. Sharma to show that the impugned provisions themselves would have a disproportionate impact on Indigenous offenders.
But a genuine commitment to substantive equality requires judicial notice of the background statistics of over-incarceration of Indigenous people. Against the backdrop of the current s. 15 jurisprudence, there is nothing controversial or unreasonable about making an inference that removing alternatives to imprisonment would only exacerbate Indigenous over-incarceration, which undermines equality rights.
The majority opinion appears more conducive to a formal equality conception of s. 15 rights, one that the Court has rejected since its first s. 15 decision in 1989. If, in cases involving Indigenous offenders, the s. 15 test is not permitted to accommodate considerations of the broader context and how challenged provisions interact with other remedial provisions, its ability to promote substantive equality is called into question yet again.