THE NECESSITY OF CONDITIONAL SENTENCES TO ACHIEVE SUBSTANTIVE EQUALITY

BROOKE JOHNSON

Another Harper-era “tough on crime” law has bit the dust.

In 2012, Parliament enacted the Safe Streets and Communities Act (the “Act”), which included the amendment to section 742.1 of the Code to eliminate the availability of a conditional sentence for a broad array of offences. The accused in R v Sharma, 2020 ONCA 478 (“Sharma”) successfully challenged two of these conditional sentence prohibitions.

The accused was sentenced to seventeen months’ imprisonment after pleading guilty to importing two kilograms of cocaine, contrary to section 6(1) of the Controlled Drugs and Substances Act. At the time of the offence, the accused was a twenty year old single mother to her three year old daughter. She had no prior criminal record. She found herself in desperate financial circumstances and was facing eviction. In an effort to avoid homelessness for herself and her daughter, she agreed to transport cocaine from South America to Canada for her boyfriend in exchange for $20,000. The accused was a member of the Saugeen First Nation and had endured a constellation of Gladue factors. She was characterized by the sentencing judge as an “intergenerational survivor of the government’s residential school effort to eradicate the cultural heritage of her people.” Despite the sympathetic facts of her case, a conditional sentence was not available to Ms. Sharma due to sections 742.1(c) and 742.1(e)(ii) of the Code. Ms. Sharma appealed her seventeen month custodial sentence and requested that the court strike down sections 742.1(c) and 742.1(e) (ii) of the Code on the basis that they contravene two sections of the Charter:

1) they contravene section 15 of the

Charter because their effect is to discriminate against Aboriginal offenders on the basis of race; and

2) they contravene section 7 of the

Charter because they are arbitrary and overbroad in relation to their purpose.

The Ontario Court of Appeal decided in a 2-1 majority that legislation which prevented drug traffickers from receiving conditional sentences is unconstitutional. More specifically, the court in Sharma concluded that the prohibition of conditional sentences for offences which carry a maximum penalty of fourteen years or life in prison and offences which include the importation of a drug and have a maximum penalty of ten years imprisonment violate sections 7 and 15 of the Charter and cannot be saved by section 1.

The majority determined that while the intent of the Act is to incarcerate convicted offenders of certain offences, the reality is that the Act will result in more Indigenous offenders serving their sentences in custody rather than in their communities. In enacting the Act, the Parliamentary debates reveal that no consideration was given to the potential effect of the amendments on Aboriginal offenders. The majority in Sharma acknowledged that the conditional sentence is a central tool provided to sentencing judges to apply Gladue factors and that by restricting the availability of the conditional sentence, the impugned amendments deprive the court of an important means to redress systemic discrimination against Aboriginal people when considering an appropriate sanction. Resultantly, sections 742.1(c) and 742.1(e)(ii) were found to be contrary to section 15 of the Charter as the benefit of a conditional sentence is denied in a manner that has the effect of reinforcing, perpetuating, or exacerbating the disadvantage of Aboriginal offenders.

The majority concluded that the impugned provisions of the Code are contrary to section 7 of the Charter because they resulted in the deprivation of the accused’s liberty in a manner that was not in accordance with the principle of fundamental justice of overbreadth. The court concluded that there was no rational connection between the purpose and some of the effects of sections 742.1(c) and 742.1(e)(ii).

The Sharma decision underscores the pivotal importance of tailoring sentences to the situational and contextual reality of individual offenders, rather than to what the maximum sentence is for a given offence. Many offences within the Code have substantial maximum sentences. However, very few offenders actually receive the maximum

sentence. This is likely because the maximum sentence of an offence is rarely a measure of the severity of the offence. One’s degree of moral blameworthiness can be committed under a vast array of circumstances. Because of this, it does not make sense to stymie a sentencing judge’s discretion or blunt an important tool within their sentencing toolkit to determine appropriate sentences for individual offenders with specific and unique circumstances. An appropriate sentence for a specific offender should not be unavailable due to a codified maximum penalty. The Sharma case is a perfect example of this.

Perhaps most importantly, this decision acts as a necessary reminder that Gladue sentencing principles are the aspiration and conditional sentencing is a tool that is provided to sentencing judges to put the aspirations of Gladue into effect. The availability of the conditional sentence has the ability to achieve substantive equality to disadvantaged and marginalized offenders and is necessary to achieve the promise of Gladue.

Despite the considerable discussion of Gladue factors within the decision, Sharma does not simply declare sections 742.1(c) and 742.1(e)(ii) of the Code inapplicable only to Aboriginal offenders. Instead Sharma struck down the two provisions entirely. While the Sharma decision is only binding in Ontario courts, it does provide a thorough framework for challenging sections 742.1(c) and 742.1(e)(ii) of the Code in other Canadian jurisdictions.

CONTINUED FROM PAGE 7 • Do we think of what we are doing as a vehicle for social change rather than just a job or a means to our own aggrandizement? • Are we using our well-developed research skills to examine the roots of disadvantage and inequity? • Are we thinking creatively about possible ways to reduce inequality rather than writing off all ideas as impractical? This Black Lives Matter moment has renewed attention to issues that have been raised before, and that have never been adequately addressed. Our protestations that we are going to get around to addressing them eventually have been rightly characterized as lacking credibility and commitment. It is to be hoped that we do not squander another chance to place a higher priority on the calls for justice that are so eloquently being made.