SCC upholds constitutionality of denying conditional sentences for serious offences

In 2015, Ms. Sharma, an indigenous woman, pleaded guilty to importing 1.97 kilograms of cocaine worth around $130,000. She confessed that her partner had promised to pay her $20,000 to bring the substance into Canada in her suitcase. She was arrested and charged with importing over one kilogram of a prohibited substance. By way of background, she was 20 years old at the time, with no criminal history. She was a single mom and faced the possibility of homelessness, so she agreed to import the drugs. Her grandmother was a residential school survivor and her mother had spent time in foster care. Ms. Sharma had been sexually assaulted and had dropped out of school for financial difficulties.

Ms. Sharma sought a conditional sentence under s. 742.1 of the Criminal Code. This section allows offenders to serve their sentences under surveillance in their communities, rather than in jail. She also challenged several provisions under the Criminal Code that made conditional sentences unavailable in certain situations. In 2012, the government had amended the conditional sentencing regime to make these sentences unavailable for certain serious offenses. Specifically, conditional sentences were made unavailable for any offence with a maximum jail term of 14 years or life, including the one that Ms. Sharma plead guilty to. Conditional sentences were also made unavailable for offenses having a maximum jail term of 10 years and involving the import, export, trafficking or production of drugs.

In considering whether a conditional sentence is appropriate, the court must have regard to the principles of sentencing including those set out in s. 718.2(e) which states 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.”

The sentencing judge held that a conditional sentence was unavailable to Ms. Sharma and dismissed her Charter challenges. The sentencing judge imposed an 18-month jail term.

Ms. Sharma appealed the decision. The Ontario Court of Appeal held that sections 742.1(c) and 742.1(e)(ii) of the Criminal Code which denied conditional sentences for certain serious offences were overbroad under s. 7 of the Charter and discriminated against indigenous offenders under section 15(1). The Court of Appeal allowed the appeal and struck down the provisions and sentenced Ms. Sharma to time served.

The Crown appealed the decision of the Ontario Court of Appeal. In a decision dated November 4, 2022, the 5-4 majority at the Supreme Court of Canada held that the Court of Appeal decision should be set aside and restored the sentence imposed in the first instance. The majority held that sections 742.1(c) and 742.1(e)(ii) are constitutional and do not limit Ms. Sharma’s s. 15(1) Charter rights. In paragraph 3, the majority held that “while the crisis of indigenous incarceration is undeniable, Ms. Sharma did not demonstrate that the impugned provisions created or contributed to a disproportionate impact on Indigenous offenders, relative to non‑Indigenous offenders, as she must show at the first step of the s. 15(1) analysis.” The majority also held that the provisions do not limit Ms. Sharma’s s. 7 Charter rights with respect to her liberty interests. The Court found that the purpose of the amendments to the conditional sentencing regime was to increase consistency by removing the availability of conditional sentences for certain offenses.

In dissent, the minority held that the conditional sentencing provisions are unconstitutional and upheld the decision of the Court of Appeal. The minority held that the conditional sentencing provisions infringe s. 7 of the Charter because they deprive some individuals of their liberty in a manner that is overbroad. The provisions also infringe s. 15(1) of the Charter because they negatively effect the remedial nature of s. 718.2(e) which directs judges to consider alternatives to imprisonment “with particular attention the circumstance of Aboriginal offenders”.

Notably, in the introduction of their dissent decision, the minority states:

[114] The overrepresentation of Indigenous people in Canada’s prisons is a present-day product of this country’s colonial past. As Indigenous incarceration rates have climbed, and those of Indigenous women have soared, some have compared Canadian correctional facilities to residential schools (see Truth and Reconciliation Commission, The Final Report of the Truth and Reconciliation Commission of Canada, vol. 5, The Legacy (2015), at p. 219). Like residential schools before it, this overincarceration is an ongoing source of intergenerational harm to families and communities. It is a striking sign of the discrimination that Indigenous peoples experience in “all parts of the criminal justice system” (Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165, at para. 57). And it remains a poignant obstacle to realizing the constitutional imperative of reconciliation.

[115] Sentencing law cannot erase this country’s colonial past. Nor can it remove the causes behind an offender’s crime. But it is uniquely positioned to ameliorate — or aggravate — the racial inequalities in our criminal justice system. Ensuring that Canadian sentencing provisions are consistent with the liberty and equality guarantees under the Canadian Charter of Rights and Freedoms is therefore essential. This case requires us to do so.