R. v. Sharma: Conditional Sentencing in Canada

• R. v. Sharma (2022 SCC 39) addresses the constitutionality of amendments to the conditional sentencing regime.

Conditional Sentences

• Conditional sentences allow offenders to serve their punishment in the community.
• Parliament created this sentencing regime in 1996.
• Amendments in 2012 made conditional sentences unavailable for certain serious offenses.

Ms. Sharma's Case

• In 2015, Ms. Sharma imported 1.97 kilograms of cocaine into Canada.
• She pleaded guilty but sought a conditional sentence.
• Amendments from 2012 made conditional sentences unavailable for offenses with a maximum imprisonment of 14 years or life or offenses involving drug import/export/trafficking with a maximum term of imprisonment of 10 years.
• A sentencing judge ruled conditional sentence unavailable and dismissed challenges under ss. 7 and 15(1) of the Canadian Charter of Rights and Freedoms.
• Ms. Sharma appealed, and the Court of Appeal for Ontario determined the provisions were overbroad under s. 7 and discriminated against Indigenous offenders like Ms. Sharma under s. 15(1).
• The Crown appealed this decision.
• The appeal would be allowed, restoring the sentencing judge's order because the impugned provisions don't limit Ms. Sharma's s. 15(1) rights.
• It was determined Ms. Sharma didn't prove the provisions disproportionately impacted Indigenous offenders relative to non-Indigenous offenders.
• The provisions enhance consistency by making imprisonment typical for specific serious offenses.
• Maximum sentences are a proxy for offense seriousness.
• The provisions don't deprive individuals of liberty without connection to their objective.

Facts of the Case

• In June 2015, Ms. Sharma, of Ojibwa ancestry and a member of the Saugeen First Nation, arrived in Toronto on an international flight.
• Her suitcase contained 1.97 kilograms of cocaine.
• She confessed to the RCMP that her partner promised $20,000 to bring the suitcase to Canada.
• Ms. Sharma was 20, two months behind on rent, and facing eviction with no prior record.
• Ms. Sharma pleaded guilty to importing a controlled substance.
• Her sentencing was contested, leading to a Gladue report.
• The report revealed hardship and intergenerational trauma, including becoming a single mother at 17, limited support, and risk of homelessness.
• Ms. Sharma's grandmother was a residential school survivor, her mother spent time in foster care and experienced sexual assault, and she dropped out of school due to financial difficulties.

Legislative Framework

• Conditional sentences are provided for under s. 742.1 of the Criminal Code, allowing offenders to serve sentences under surveillance.
• Parliament legislated conditional sentences in 1996.
• The Act significantly reformed sentencing law, including purpose and principles of sentencing, the conditional sentencing regime, and s. 718.2 considerations for judges.
• Parliament's objectives were to reduce imprisonment sentences and expand restorative justice.
• Offenders were ineligible for conditional sentences if their offense had a minimum term of imprisonment, a term of more than two years, would endanger the community, or be inconsistent with the fundamental principles of sentencing.
• In 2007, conditional sentences were unavailable for offenders convicted of a “serious personal injury offense” or specific other crimes.

Imposing Conditional Sentences

• Section 742.1 outlines when a court may order an offender to serve a sentence in the community.
• Prerequisites for a conditional sentence include the offender not being convicted of listed offenses, a sentence of imprisonment of fewer than two years, and the community's safety not being endangered.
• Ms. Sharma challenged the constitutionality of s. 742.1(c) and s. 742.1(e)(ii)
• The majority held that Ms. Sharma was "affected by both preclusions”.

Section 15 of the Charter

• Section 15(1) of the Charter guarantees equality before and under the law without discrimination. A two-step test assesses a s. 15(1) claim:
  • Showing the law creates a distinction based on enumerated grounds.
  • Showing the law imposes a burden or denies a benefit that reinforces disadvantage.
• Adverse impact discrimination occurs when a seemingly neutral law disproportionately impacts protected groups.

Addressing Uncertainties in the s. 15(1) Framework

• Addressing 3 uncertainties:
  • Whether the claimant must prove the law caused the disproportionate impact.
  • Whether the entire legislative context is relevant.
  • Whether s. 15(1) imposes a positive obligation on the legislature.
• The Court's jurisprudence answers these questions, clarifying and bringing predictability to its application for Charter challenges and legislators.
• Section 15(1) is described as the most conceptually difficult provision: with an analytical framework that is “daunting”

Guidance on the Section 15(1) Framework

• Ms. Sharma didn't meet her burden by not demonstrating the impugned provisions increased imprisonment of Indigenous offenders.
• While statistical disparity evidence was optional, the sentencing judge found Ms. Sharma hadn't met the evidentiary burden and that no such evidentiary burden need be met.
• Substantive equality is regarded as the “animating norm” of s. 15, specifically protecting substantive equality.

Guidance on the Section 15(1) Framework-Proving the Law

• Two Questions arise from claimants trying to prove the law has a disparate impact:
  • What is the standard by which courts should measure impact?
  • How may claimants prove impact?
• Claimants must demonstrate a disproportionate impact on a protected group.
• Equality functions as a comparative concept.

Key Confirmations of Claims

• Claimants must establish a link or nexus between the impugned law and the discriminatory impact.
• The Court confirmed a long line of s. 15 jurisprudence: the claimant must establish a link or nexus between the impugned law and the discriminatory impact.
• Claimants need not show the impugned law was the only or the dominant cause, only that it contributed.
• Courts should carefully scrutinize scientific evidence

Examining Step Two

• The question becomes, what does it mean to reinforce, perpetuate, or exacerbate disadvantage?
• Courts assess the historical or systemic disadvantage
• Factors assisting a judge in determining whether claimants have met their burden:
  • Arbitrariness
  • Prejudice
  • Stereotyping
• These factors are not mandatory: "[t]hey may assist in showing that a law has negative effects on a particular group, ... they ‘are neither separate elements of the Andrews test, nor categories into which a claim of discrimination must fit"

Legislative Context in Assessing Discrimination

• Legislative context should be factored when determining whether a distinction is discriminatory under the second step.
• Considerations for analysis include:
  • Objects of the scheme
  • Whether lines are considerately drawn
  • Policy design to benefit a number of different groups

Scope of the State's Obligations to Remedy Social Inequalities

• When considering the questions raised , it is important to confirm two principles related to the government's obligations under s. 15(1):
  • S. 15(1) does not impose a general, positive obligation to remedy social inequalities
  • When the state does legislate to address inequality, it can do so incrementally

Application to the Impugned Provisions

• The Court believed that Ms. Sharma's claim failed at step one, that the provisions do not create or contribute to impact on Indigenous offenders.
• The sentencing judge rejected Ms. Sharma's s. 15(1) claim and because Ms. Sharma adduced “no statistical information”.
• The Court believed that the Court of Appeal collapsed both steps of the process by using broad evidence of disadvantage.
• The Court also believed that the Court of Appeal addressed "the wrong question at step one, focusing on the link between colonial policies and overincarceration of Indigenous peoples".

Final Conclusion of the Case

• Ms. Sharma's argument could not be accepted, and the Court of Appeal did depart from its proper role and misapplied the jurisprudence of this Court.
• The Court stated that "the availability of conditional sentences for certain offences, disproportionately impacts Indigenous offenders" could not be accepted
• It is clear that 718.2(e) is still meaningfully operable, as it was given effect in this case.
• While the court is sympathetic to Indigenous people in prisons, they believed to follow what Parliament's intent is.
• Concluded with setting aside the order of the Court of Appeal, and restore the sentence imposed at first instance.
• As Ms. Sharma has served her sentence, no further orders are required.

Dissent

• Dissent written by Karakatsanis J writing (Martin, Kasirer and Jamal JJ. agreeing).
• Cheyenne Sharma, owing 2 months rent agreed to bring cocaine for partner.
• Ms. Sharma pleaded guilty, but challenged several provisions of the CDSA and the Criminal Code, R.S.C. 1985, c. C-46, under ss. 7, 12 and 15(1) of the Charter.
• 742.1(c) of the Criminal Code -precluded him from imposing a community sentence.
• 742.1(c) and 742.1(e)(ii) as violating ss. 7 and 15(1) of the Charter.

Indigenous Overview

• MS. Sharma belongs to First Nation is of Objibwa ancestry.
• Her grand mother survived residential schooling.
• The story Ms. Sharma intersects with are a product of circumstances with:
  • Colonialism
  • rising rates of Indigenous incarceration
  • Parliamentary and judicial responses to the sentencing

A Reminder of The Charter

• The Charter provides equality by understanding, “of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment".
• There is the matter of not giving light to issues such as higher unemployment, incarceration and incarceration for Aboriginal peoples.
• Prison has become for many Aboriginal people what residential schools used to be:
  • An isolating experience that removes Aboriginal people from their families and communities.
  • A cycle of a violent place that often results in greater criminal.

Legislative Review of Sentencing

• Among its 94 “calls to action", the Commission called for eliminating" the overrepresentation.
• Key Act the 1995 law, which came into force the following year, created Part XXIII of the Criminal Code, marking the “first codification and significant reform of sentencing principles in the history of Canadian criminal law”.
• Bill C-41 introduced measures for imprisonment to Indigenous sentencing consideration by:
  • Expanding to which offered could be served in community.
  • 718(2) -“Aboriginal circumstances”.

More On Past Cases on the Charter

• 19-year older Cree had pleaded guilty to manslaughter in the Gladue case.
• She was to sentenced to 3 years imprisonment because of the lack of application and lived not living on reserve.
• 718(2) directs "undertake the process of sentencing aboriginal offenders differently” (para. 33).

Analysis of Ms. Sharma in the Present Case

• Ms. Sharma has satisfied both stages of the s. 15(1) test.
• Ss. 742.1(c) and 742.1(e)(ii) distinguish and reinforce, perpetuate.
• Provisions was designed to specifically benefit Indigenous offenders, who face pre- existing disadvantages in the Canadian justice system.

Distinction on the Basis of Race.

• The first question is whether ss. 742.1(c) and 742.1(e)(ii), distinguished discrimination based on analogues facts - such as one pertaining an Indigenous person.

Key Provision

• Ms. Sharma states replies to the provisions impair a accommodation —- the remedial function of the Gladue framework
• Removes conditional sentences has to has impact on judges fulfilling the framework
• In seek to improve justice. Judges were give a different method in sentencing from pasts case law.

Indigenous Context Facts

• They called and were told that if they should "abandon[ing] the presumption that all offenders and all communities share the same values when it comes to sentencing".
• A unit form would prove to improve upon equality to sentencing in the courts.
• The indigenous framework is "calls upon judges to undertake the process of sentencing".

Final Analysis

• Indigenous peoples can seek the to ensure more equal protection and benefit under the law, in conclusion.
• In the end, what matters is "effect those had on the law" with respect to legislative rights.
• The dissent concluded that the state had not met its burden.