Supreme Court upholds Harper-era rule denying conditional sentences for serious crimes

The Supreme Court of Canada is shown in Ottawa on Oct. 20, 2022.  (Sean Kilpatrick/The Canadian Press - image credit)
The Supreme Court of Canada is shown in Ottawa on Oct. 20, 2022. (Sean Kilpatrick/The Canadian Press - image credit)

The Supreme Court of Canada has ruled that sentencing an Indigenous person to a jail term instead of a conditional sentence does not violate the Constitution in cases of crimes involving maximum sentences of at least 14 years in prison, or 10 years in drug-related cases.

The ruling stems from the 2016 case of Cheyenne Sharma, a young Indigenous woman who pleaded guilty to importing two kilograms of cocaine in exchange for $20,000 from her boyfriend — a task she said she carried out to avoid seeing her and her daughter evicted.

Sharma had asked the court to give her a conditional sentence that would allow her to serve her time in the community, but the court rejected that request on the grounds that she pleaded guilty to a crime carrying a maximum sentence that made her ineligible for a conditional sentence.

In February 2018, she was sentenced to 18 months in custody. The Ontario Court of Appeal found the Criminal Code provision denying Sharma the right to a conditional sentence violated the Charter of Rights and Freedoms because it discriminated against Indigenous offenders.

The Court of Appeal sentenced Sharma to time already served and the Crown appealed the case to the Supreme Court of Canada.

The case hinges on a part of the Criminal Code — enacted in 2012 under then-prime minister Stephen Harper — which bans community-based sentences for crimes that carry maximum penalties of at least 14 years in prison, or 10 years for crimes related to importing, exporting, trafficking or the production of drugs.

In a 5-4 split, justices Richard Wagner, Suzanne Côté, Russell Brown, Malcolm Rowe and retired justice Michael Moldaver ruled that upholding the Harper-era sentencing provision did not violate the Charter of Rights. The court set aside the Court of Appeal's decision, restoring the initial sentence.

"While the crisis of Indigenous incarceration is undeniable, Ms. Sharma did not demonstrate that the impugned provisions created or contributed to a disproportionate impact on Indigenous offenders, relative to non‑Indigenous offenders," said the majority. "Nor do the impugned provisions limit Ms. Sharma's rights.

"Maximum sentences are a reasonable proxy for the seriousness of an offence and, accordingly, the provisions do not deprive individuals of their liberty."

The will of Parliament and the electorate

The Supreme Court said maximum sentences are designed to signal that a particular crime is serious and warrants consistency in sentencing, regardless of the offender.

"Reasonable people may disagree about which offences are 'serious' enough to warrant jail sentences. These are judgment calls, and there is no obvious reason to prefer one or the other," the majority decision said.

"Ultimately, as this court has maintained, the call rests not with the preferences of judges, but with those collectively expressed by Parliament as representatives of the electorate."

The court said that while Sharma's decision to traffic drugs across international borders to avoid being evicted was "tragic," it does not make her crime "any less serious." The court noted that the Crown initially wanted a six-year sentence but that Sharma's personal circumstances resulted in a sentence of just 18 months.

"Where a sentencing judge determines that a jail sentence is warranted, offenders convicted of those offences will serve their sentences in jail, rather than in the community," the ruling said.

"While [the law] limits Ms. Sharma's liberty interests, it does so in a manner that accords with the principles of fundamental justice."

Dissenting decision

In their dissenting opinion, justices Andromache Karakatsanis, Sheilah L. Martin, Nicholas Kasirer and Mahmud Jamal said they would have allowed the appeal and the disqualification of the conditional sentencing option in this case did violate Sharma's constitutional rights.

The justices said that conditional sentences are sometimes the only tool that judges can use to apply restorative justice principles and craft fair sentences for Indigenous peoples.

They said ruling out conditional sentences in cases involving an Indigenous offender prevents judges from following sentencing guidelines in the Criminal Code requiring them to consider alternatives to imprisonment "with particular attention to the circumstances of Aboriginal offenders."

The dissenting justices also said assigning maximum sentences to specific crimes does not demonstrate that they are "necessarily serious" but only that they are "potentially serious."

"Maximum sentences are a flawed proxy for the gravity of offences which can be committed in circumstances ranging in severity, from the relatively more serious to the relatively less serious," the ruling said.

The dissenting justices said that while maximum sentences can provide "general guidance" on the gravity of an offence, courts should weigh each sentencing decision on its merits.

"The question is always: for this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code?" the ruling said.