Supreme Court upholds conditional sentence limits

Parliament Hill and the Supreme Court of Canada are shrouded in fog in Ottawa on November 4.Sean Kilpatrick/The Canadian Press

The federal government does not have to try to reduce the disproportionate incarceration rates of Indigenous people when passing crime laws, the Supreme Court of Canada has ruled.

The court split 5-4, with the majority saying Indigenous peoples have no constitutional right to special treatment in the criminal justice system. The dissent argued that the excessive incarceration of First Nations stands in the way of reconciliation, which it called a constitutional necessity.

The case of Cheyenne Sharma, an Ojibway single mother facing deportation who was caught bringing two kilograms of cocaine to Canada in exchange for a $20,000 payment, touched on what may be the deepest flaw in the tribunal: how to define what the protection of equality in the Charter of Rights and Freedoms requires of the government.

Over 30% of federal inmates are Indigenous, although First Nations make up only 5% of the population. A 1996 law passed by a Liberal government requires that the circumstances of Aboriginal offenders be considered in sentencing. And Ms. Sharma certainly had special circumstances. Her grandmother was a residential school survivor, her mother was in foster care, and she herself was an abuse survivor.

The same Liberal government in 1996 also created conditional or community sentences as an alternative to imprisonment. But in 2012, Stephen Harper’s Conservative government imposed strict limits on the use of conditional sentences.

The question for the Supreme Court of Canada was whether conditional sentence limits discriminate against Indigenous offenders, by reducing the discretion of judges to give them the special consideration required by law.

The Crown initially requested six years in prison for Ms. Sharma. His lawyers requested a community sentence. But such sentences didn’t seem possible, in part because drug-related crimes like the one she committed didn’t allow them under the Harper government’s 2012 changes.

The Supreme Court majority, in a judgment co-authored by Justice Russell Brown and Justice Malcolm Rowe, cautioned against giving judges a power that rightly belongs to Parliament. Referring to the 1996 law which requires special consideration for Aboriginal offenders, they wrote: “It is a statutory provision, not a constitutional imperative, and it is open to Parliament to change it, although this restricts the circumstances in which it applies. They said they had seen no evidence that the provision in question widened the incarceration gap.

The dissenters, in an opinion written by Judge Andromache Karakatsanis, said no such evidence was necessary. It was enough for Harper’s limitations to prevent judges from applying the framework of the 1996 law. … And it remains a poignant obstacle to realizing the constitutional imperative of reconciliation.

Nader Hasan, a lawyer for Ms Sharma, said the court failed to deliver on the promise of the 1999 ruling known as Gladue, which applied the Special Considerations Act 1996 in sentencing. The majority “seem blissfully oblivious to the crisis of mass Indigenous incarceration in this country and the role that conditional sentencing and the Gladue framework can play in helping to address that crisis,” he said.

Adam Bond, a lawyer for the Native Women’s Association of Canada, said the decision undermines the Gladue framework and will increase the representation of Indigenous women in prisons.

The Sharma ruling echoed the court’s bitter divisions two years ago in a case called Fraser, in which the RCMP created a job-sharing plan for its employees but excluded contributors to the pension plan. The court had ruled 6 to 3 that the job-sharing scheme discriminated against women by perpetuating a history of financial disadvantage.

In the current case, involving Ms Sharma, two of the Fraser majority justices – Chief Justice Richard Wagner and Justice Michael Moldaver – went from supporting the equality claim to opposing it.

The result: The court split almost entirely by nominating party, a common trend over the past two and a half years. All of the majority appointees, with the exception of Justice Rowe, were chosen by a Conservative Prime Minister, Mr. Harper. All of the dissenters, with the exception of Justice Karakatsanis, were chosen by the Liberal Prime Minister, Justice Trudeau.

“The majority and the minority each say they firmly follow previous court rulings, but only one can be correct in that assertion,” said Jonathan Rudin, Intervenor Counsel, Aboriginal Legal Services.

Judge Moldaver retired at the end of August, but has six months to complete the cases he has heard. His replacement, the court’s first Indigenous member, Justice Michelle O’Bonsawin, could now hold the deciding vote on equality issues.

Ms. Sharma’s first hurdle had been a mandatory minimum sentence of two years. In 2018, Ontario Superior Court Judge Casey Hill overturned that decision as grossly disproportionate. But he said he had not been shown evidence that limits on conditional or community sentences had a greater impact on Indigenous offenders than on non-Indigenous offenders. He sentenced Ms. Sharma to 17 months in prison.

The Ontario Court of Appeal, in a 2-1 decision in 2020, overturned conditional sentence limits and said Ms Sharma deserved community punishment. (By then, she had already served her 17 months.)

The Liberals in power introduced a bill in Parliament that would allow greater use of conditional sentences. But the broader principle established by the Supreme Court may survive the current government.

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