Criminal Law: Conditional Sentencing; CharterR. v. Sharma, 2020 ONCA 478 (CanLII)
Keywords: conditional sentence; ss. 742.1(c) and 742.1(e)(ii) of the Criminal Code; ss. 7 and 15 of the Charter
Ms. Cheyenne Sharma, a 20-year-old Canadian woman of Ojibwa ancestry (and a member of the Saugeen First Nation) agrees to fly to Surinam and retrieve drugs in exchange for $20,000 from her boyfriend. She’s behind on rent and facing eviction. She does so to avoid homelessness for herself and for her daughter. She has no prior criminal record. Ms. Sharma lands at Toronto Pearson International Airport. In her suitcase: 1971.5 grams of cocaine (an estimated street value of $130,000). She confesses to RCMP and pleads guilty to importing cocaine contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. See paras. 8-10 re significant personal hardship. The Sentencing Judge characterizes Ms. Sharma as “an intergenerational survivor of the government’s residential school effort to eradicate the cultural heritage of her people”. (See para. 9). However, the Sentencing Judge rejects Ms. Sharma’s application for a conditional sentence and imposes a custodial sentence.
The issue in this case is whether Ms. Sharma should be entitled to the option of receiving a conditional sentence. Under previous iterations of the Criminal Code, such a sentence would have been available. However, in 2012, the law is changed to restrict the availability of conditional sentences for certain offences. At her sentencing hearing, Ms. Sharma asks the Court to strike down s. 742.1(c) (one of the provisions removing the availability of a conditional sentence for offences, prosecuted by indictment, where the maximum penalty is 14 years or life in prison). She makes this argument pursuant to s. 15 of the Charter, arguing the effect of s. 742.1(c) is to discriminate against Aboriginal offenders on the basis of race.
On appeal, Ms. Sharma renews and expands her argument. She asks the Court to strike down s. 742.1(c) and s. 742.1(e)(ii) on the basis of both s. 15 and s. 7. The s. 7 argument is that the impugned provisions are arbitrary and overbroad in relation to their purpose. A Majority of the Court of Appeal agrees with these arguments, and finds the sections of the Code not saved by s. 1. For the Majority, the appropriate sentence is 24 months less a day, to be served conditionally. As Ms. Sharma has served her custodial sentence, the Majority substitutes a sentence of time served. (See para. 4). Miller J.A., in dissent, writes inter alia that the Majority’s use of s. 15 of the Charter inappropriately “results in constitutionalizing ordinary legislation”. (See para. 188).
The Majority noted that conditional sentencing provisions were introduced, in part, out of recognition for “the significant problem of overrepresentation of Aboriginal people in prisons in Canada”. (See para. 33). For the Majority, conditional sentences “allow a sentencing judge to impose a sentence to fit the circumstances of the offender and further the goals of denunciation and deterrence, but permit the offender to serve that sentence in the community on conditions including a form of house arrest”. (See para. 30). The Majority summarized the legislative context of this appeal at paras. 28-55. The original text of s. 742.1 read as follows:
742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court
(a) imposes a sentence of imprisonment of less than two years, and
(b) is satisfied that serving the sentence in the community would not endanger the safety of the community,
the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s complying with the conditions of a conditional sentence order made under section 742.3.
This language was subsequently amended by Parliament to eliminate the availability of a conditional sentence for certain offences, including those committed by Ms. Sharma. (See paras. 53-54). Following the introduction of the Safe Streets and Communities Act in 2012, the relevant sections now read as follows:
742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if
(c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life; [and]
(e) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that
(ii) involved the import, export, trafficking or production of drugs[.]
The question for the Court of Appeal was whether these amendments offend ss. 15 and 7. The Majority says “yes”, Miller J.A. says “no” (to speak plainly, more like “Heck no”); or, may same be reasonably interpreted as an invitation to the S.C.C. to revisit the area?
With respect to s. 15, the Majority references Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30 (which Marie-France and I argued at the Supreme Court of Canada) as having provided the most recent restatement of the test summarized at paras. 64-65. First, a court must determine whether, on its face or in its impact, a law creates a distinction on the basis of an enumerated or analogous ground. At the second stage, the court must ask whether an impugned law “fails to respond to the actual capacities and needs of the members of the group and instead imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating their disadvantage”. (See at para. 65; See Taypotat, at para. 20). Applying this test, the Majority concludes as follows:
I would answer the two parts of the Taypotat analysis by holding, first, that the impugned provisions, in their impact on Aboriginal offenders including Ms. Sharma, create a distinction on the basis of race; and, second, that the provisions deny Ms. Sharma a benefit in a manner that has the effect of reinforcing, perpetuating, and exacerbating her disadvantage as an Aboriginal person. (See para. 67).
With respect to s. 7, the Majority summarizes its approach to the analysis at paras. 139-141. Citing Canada (Attorney General) v. Bedford, 2013 SCC 72 at paras. 111-112, the Court summarizes the principles against arbitrariness and overbreadth at para. 140. The Majority conducts a detailed analysis as to the purpose of the Safe Streets and Communities Act at paras. 142-148; arbitrariness at paras. 150-152; and overbreadth at paras. 153-174.
Although the Majority finds the amendments to s. 742.1 not arbitrary, as they appropriately coincide with Parliament’s purpose (see para.152), the Majority finds that they, nonetheless, fail the s. 7 test for overbreadth: “the impugned provisions are contrary to s. 7 of the Charter because they resulted in the deprivation of Ms. Sharma’s liberty in a manner that was not in accordance with the principle of fundamental justice of overbreadth. There is no rational connection between the impugned provisions’ purpose and some of their effects.” (See para. 174).
In its brief s. 1 analysis, the Majority determines “[t]here is also no basis to find that the deleterious effects of the impugned provisions on Aboriginal people are outweighed by the salutary effect of the provisions. The deleterious effects are serious. These provisions as enacted take no account of the special circumstances of Aboriginal offenders and the need to address their disadvantage based on race that has resulted in the overincarceration of Aboriginal people.” (See para. 179).
In the result, the Majority strikes down ss. 742.1(c) and 742.1(e)(ii) “with immediate effect”, adding “it is for Parliament to determine to what extent, if any, it may re-enact these provisions, bearing in mind the position of other offender groups potentially affected.” (See para. 180). The Majority then sets aside Ms. Sharma’s sentence of 17 months’ imprisonment, and declares the appropriate sentence would have been a conditional sentence of 24 months less a day. For Ms. Sharma this means “no further time is to be served”. (See para. 187).
In dissent, Miller J.A. expresses serious concerns about the Majority’s analysis and conclusions. For Miller J.A., this was a matter of defending the “bedrock constitutional principle that a Parliament cannot bind its successor”. (See para. 188). He also took issue with the Majority’s interpretation of contemporary s. 15(1) Charter doctrine:
If s. 15(1) operates as my colleague sets out – immunizing ordinary legislation from amendment or repeal, subject only to s. 1 – something has gone seriously wrong with s. 15(1) doctrine. What that problem is, and how to fix it, is at the heart of this appeal. In short, the problem is a new and reductive conception of discrimination articulated in Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30,  2 S.C.R. 548, breaking from the long history of s. 15(1) doctrine since its emergence in Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC),  1 S.C.R. 143. On this new conception, the imposition or maintenance of a burden of any kind is stipulated as sufficient basis for establishing an infringement of s. 15(1), without regard to the essential question of whether that burden has resulted from any sort of wrong – whether intentional or not – on the part of the legislature. This question, which requires that the claim of discrimination be assessed within the decision-making context, must remain if s. 15(1) analysis is to be a substantive inquiry into wrongful discrimination. (See para. 189).
It remains to be seen whether the Supreme Court of Canada will have a chance to resolve this juridical debate on the scope and application of the Charter to redress historical injustice via legislative scrutineering. If the Majority’s decision is upheld, one wonders what other provisions of the Code may be affected. For example, might these same s. 7 and 15 arguments be applied to the Government’s recent amendments concerning firearms?
We are now given some answers. But there are still some questions. The law is now different in certain jurisdictions – the Sask. C.A. rejected the same challenge in R v Neary. Will provinces who haven’t decided the issue follow Neary or Sharma? Might A.G. Can. feel compelled to appeal because of that “circuit split”? Section 742.1 is now an odd provision in Ontario: because of the provisions struck down, you can now theoretically get a conditional sentence for aggravated sexual assault but not for sexual assault simpliciter (which is still caught by subs. (f)); and you can get a conditional sentence for serious drug trafficking offences but not for criminal harassment. Are either of those other provisions low hanging constitutional fruit for the next challenge, or will Parliament have to rewrite the law? Qui vivra, verra.
Counsel for the appellant: Nader Hasan and Stephen Aylward (Stockwoods LLP Barristers, Toronto)
Counsel for the respondent: Kevin Wilson (Public Prosecution Service of Canada, Toronto)
Counsel for the interveners HIV & AIDS Legal Clinic Ontario and Canadian HIV/AIDS Legal Network: Khalid Janmohamed and Robin Nobleman (HIV & AIDS Legal Clinic Ontario, Toronto)
Counsel for the intervener Aboriginal Legal Services Legal Clinic: Jonathan Rudin and Emily R. Hill (Aboriginal Legal Services of Toronto, Toronto)
Counsel for the intervener Native Women’s Association of Canada: Adam Bond (Native Women’s Association of Canada, Ottawa)
Counsel for the intervener the Criminal Lawyers’ Association (Ontario): Promise Holmes Skinner (Promise Holmes Skinner Barrister and Solicitor, Toronto) and Samara Secter (Addario Law Group LLP) Toronto
Counsel for the interveners Women’s Legal Education and Action Fund Inc. and the David Asper Centre for Constitutional rights: Adriel Weaver and Jessica Orkin (Goldblatt Partners LLP, Toronto)
Thank you: Kevin Wilson and Nader Hasan for suggestions (all accepted) re an earlier draft.