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Conditional Sentences Unavailable for Serious Drug Offences—For Now

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By Joseph Neuberger

The Supreme Court of Canada recently overturned the Court of Appeal for Ontario’s decision in R. v Sharma, 2022 SCC 39. Once again, conditional sentences—sentences that are served in the community rather than a prison—are once again unavailable for certain categories of serious drug offences. The impact of this decision will be felt more in its interpretation of constitutional rights than in terms of its immediate impact in the law, given that the provisions in question are set to be removed from the Criminal Code by the currently pending Bill C-5. Regardless, this decision says important things about just how the government may go about classifying offences as “serious”, and in terms of its impact on how rights claimants may demonstrate that the law treats them unequally.

Ms. Cheyenne Sharma admitted to importing just under 2 kilograms of cocaine into Canada in her suitcase and pleaded guilty to Importing a Schedule I Substance under the Controlled Drugs and Substances Act. She sought a conditional sentence. However, under 2012 amendments to the Criminal Code passed by the Harper government, conditional sentences were made unavailable for any offence that had a maximum term of 14 years imprisonment or life, as well as certain drug offences with a maximum term of 10 years or more where the Crown prosecutes by indictment. Ms. Sharma challenged the legislation as contrary to sections 7 and 15 of the Canadian Charter of Rights and Freedoms.

The Court dealt first with Ms. Sharma’s section 15 argument. Section 15 of the Charter guarantees that everyone has the right to equal protection and equal benefit of the law. Ms. Sharma herself is a woman of Ojibwa descent, and a member of the Saugeen First Nation. In Canadian law, ever since the Supreme Court of Canada’s decision in R v Gladue, [1999] 1 SCR 688, First Nations offenders have been entitled to consideration of their Indigenous background in sentencing. Section 718.2(e) of the Code specifically requires that courts consider all available alternatives to custodial sentences, “with particular attention to the circumstances fo Aboriginal offenders.” Canada has a serious problem with the overincarceration of Indigenous people—when Gladue was decided in 1999, Indigenous people, despite making up only 3% of the Canadian population, accounted for 17% of the prison population. The problem has only gotten worse since then—a government report from earlier this year noted that Indigenous people now accounted for 32% of the Federal prison population. Looking at only female inmates, Indigenous woman accounted for just under 50% of the prison population. While Canada is a wonderful country in many respects, these statistics make clear that Canada’s mistreatment of Indigenous people is not simply a historical footnote.

Ms. Sharma argued that the denial of a conditional sentence under the 2012 amendments was a violation of her s. 15 right to equality. In Ms. Sharma’s submission, because the government made unavailable a remedy that was specifically put in place to address the problem of Indigenous overincarceration, her s. 15 rights had been violated. The Supreme Court majority rejected this argument because Ms. Sharma failed to demonstrate a causal connection between the challenged provisions and the problem of Indigenous overincarceration, in such a way that it would demonstrate a disproportionate impact on Indigenous people. They noted that she did not need to call a particular kind of evidence, but that there was an onus on her to put forth some evidence that supported the two provisions in question having a disproportionate impact on Indigenous offenders. Not having done so, her s. 15 claim failed.

Ms. Sharma also challenged the legislation under s. 7 of the Charter. Section 7 establishes the right of everyone in Canada not to be deprived of life, liberty, or security of the person except for in accordance with the [principles of fundamental justice. Here, Ms. Sharma said that the challenged legislation would deprive her of her liberty in a manner that was overboard and arbitrary. A law is arbitrary and violates s. 7 of the Charter where it deprives a person of their life, liberty, or security of the person in manner that bears no connection to the purpose of the law, and it is overbroad where it limits a person’s life, liberty or security of the person in a way that is not rationally connected to the law’s purpose.

Here, the Court characterized the law’s purpose as enhancing consistency in the conditional sentencing regime by making imprisonment the typical punishment for certain serious offence and categories of offences. The majority disagreed with the Court of Appeal, that had held that it was inappropriate to use maximum sentence as a proxy for seriousness, and thus that the law was overbroad as capturing offenders who had not committed a serious offence. The majority pointed to a number of decisions from the Supreme Court that had used maximum sentence as a proxy for seriousness. The majority also pointed out that it was for Parliament, not the courts, to determine the relative seriousness of an offence.

The Court also dismissed Ms. Sharma’s arbitrariness argument. The purpose of the law is to deny conditional sentences for certain serious offences and categories of offences, and it does just that. It is rationally connected to the purpose for which it was enacted, and thus is not arbitrary.

Four justices dissented, led by Justice Karakatsanis. She began by detailing the sordid Canadian history of the criminal justice system’s adverse impact on Indigenous persons and their communities. She then went on to consider the constitutionality of the challenged provisions. She makes the important point that maximum sentence is a poor proxy for seriousness, because maximum sentences are necessarily rare — using the example of the offence of break and enter, which, when committed in a dwelling house carries a maximum sentence of life, but which the data indicates the average sentence imposed on most offenders was under a year in custody, if custody was imposed at all.

With respect to section 15, Justice Karakatsanis criticized the majority for departing from an earlier decision of the Court that specifically stated that neither expert evidence nor evidence of statistical disparity were required for a s. 15 claim to succeed. In her view, given the relationship between s. 718.2(e), which directs courts to consider the circumstances of Aboriginal offenders, and the challenged provisions which deny conditional sentences, was clear on its face.

Having found this disproportionate impact, she went on to consider whether the law denies a benefit in a manner that had the effect of exacerbating disadvantage. Justice Karakatsanis again detailed the history of discrimination against Indigenous people, and Indigenous women, in the Canadian criminal justice system. She concluded that the government’s singling out of certain offences and effectively removing them from the Gladue regime constituted the denial of a benefit in such a manner as to perpetuate disadvantage and would have struck down the law on that basis in addition to its unconstitutionality under s. 7.

Justice Karakatsanis would have held that the provisions could not be justified under s. 1 of the Charter and would have held them to be of no force or effect.

As mentioned above, to some extent, this case is nearly moot: Bill C-5, currently in the Senate as of the date of this blog, would repeal both of the impugned provisions amongst other sections that have the effect of denying conditional sentences to certain offenders. This legislation is likely to pass in the new year, ensuring that people in situations analogous to Ms. Sharma’s will have conditional sentences available to them.

Still, this case’s impact will be felt in Canadian law for some time, particularly with respect to equality jurisprudence. As pointed out by Justice Karakatsanis’s dissent, the majority decision seems to raise the evidentiary bar on equality claimants when they are seeking to demonstrate a violation based on a law that is facially neutral but has an adverse impact on a disadvantaged group. In the s. 7 context, the holding that maximum sentence is an appropriate proxy for seriousness is also troubling and opens the door for other distinctions based on maximum sentence even when the offence in question captures a broad range of potentially criminal conduct.

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