Ottawa, ON (unceded Algonquin Anishnaabeg Territory) The BC Civil Liberties Association (BCCLA) is disappointed in today’s Supreme Court of Canada decision in R v Sharma, a case that considered the constitutionality of sentencing provisions in the Criminal Code that restrict the ability of judges to impose a conditional sentence for certain offences. In a 5-4 decision, a majority of the Supreme Court upheld the laws, ruling that they fulfilled Parliament’s aim of enhancing consistency in the sentencing regime and therefore could not be said to violate s.7 of the Charter. The majority also held that the defendant had failed to prove that the laws have a discriminatory impact, and so s. 15 of the Charter was likewise not infringed.
The BCCLA intervened in this case and is disheartened that the court has reverted to a technical and impoverished view of s.15 of the Charter by placing an undue burden on Indigenous defendants to prove what has already been recognized time and time again: the lasting legacy of colonialism in the criminal justice system has directly resulted in the overrepresentation of Indigenous people in prisons.
Conditional sentences allow an offender to serve their sentence of imprisonment in the community. Introduced in 1996, conditional sentences in part reflect Parliament’s specific emphasis of reducing the overincarceration of Indigenous people.
The appeal concerns the sentencing of Cheyenne Sharma, a single mother of Ojibwe ancestry and a member of the Saugeen First Nation. In 2015, she pleaded guilty to importing cocaine, an offence she agreed to carry out in exchange for $20,000 so that she could pay rent and maintain housing for her and her daughter. An intergenerational survivor of residential schools, Ms. Sharma endured a tumultuous childhood with a history of foster care, sexual violence, alcohol and drug use, poverty and lack of education, and time spent as a sex worker. These intersecting factors would have made her the ideal candidate for a conditional sentence, were it not for laws enacted in 2012 that removed these sentences from the judge’s toolbox of available options.
The BCCLA had urged the court to recognize that the laws prohibiting sentencing judges from imposing conditional sentences in otherwise appropriate cases are arbitrary, overbroad, and discriminatory. We argued that restricting the availability of conditional sentences must be viewed in a wider legal and historical context that accounts for enduring colonial legacies. Considered in this way, the laws are inconsistent with the broader purposes of prioritizing restorative justice and providing meaningful alternatives to reduce the use of prison, especially for Indigenous people. Further, we pushed the court to acknowledge that the laws perpetuate, reinforce and exacerbate disadvantages in a way that fails to recognize the full impact of the laws as a reflection of Canada’s colonial foundations. Instead, the Supreme Court’s decision ignored those realities in favour of entrenching and reverting to the disappointing status quo.
Vincent Larochelle, counsel for the BCCLA, states:
“It’s a disappointing decision, certainly not one that the BCCLA was hoping for. The decision marks a sad day for Indigenous defendants and the slow path to reconciliation. More generally, the decision represents a significant set back in s.15 jurisprudence for equality-seeking groups by an undue insistence on proving causality, amongst other things. It is particularly unfortunate given that groups subject to discrimination are already at a significant jurisprudential disadvantage when it comes to access to justice. The Supreme Court of Canada was not yet ready to open the doors of justice fully to equality-seeking groups. We keep our hearts in the present and our gaze to the future.”