Conditional Sentences: R. v. Sharma

The Supreme Court of Canada recently released its decision in R. v. Sharma, 2022 SCC 39, in which the highest court in the land has ruled that banning conditional sentences for certain offences is constitutional. This article provides a brief overview of the Supreme Court’s decision.

The Offender:

In 2015, a woman, with no criminal record, arrived in Toronto on an international flight with close to two kilograms of cocaine in her suitcase. She confessed to the police that her partner promised her a sum of money in exchange for bringing the suitcase to Canada. She plead guilty to importing cocaine.

Gladue Report:

The Offender’s sentencing was contested. Because the Offender was a member of the indigenous community, the court requested a Gladue report. The report revealed intergenerational trauma and hardship. It mentioned that the Offender became a single mother with little support when she was 17; her grandmother was a residential school survivor; and her mother had been in foster care. The Gladue report also noted that the Offender is a victim of sexual assault, she dropped out of school, and the prospect of homelessness for her child motivated her to agree to her partner’s request.

A Gladue report is a pre-sentencing report produced in criminal cases for indigenous offenders. It is named after the Supreme Court’s 1999 decision in R. v. Gladue, which requires sentencing judges to consider systemic and background factors of aboriginal offenders, and the types of sentencing procedures and sanctions that are appropriate in the circumstances. The report provides information on the unique circumstances of an aboriginal offender, which will support a judge in making an appropriate decision in that aboriginal person’s case.

Conditional Sentencing:

At her sentencing, the Offender asked for a conditional sentence, but the sentencing judge found her to be ineligible because she pled guilty to an offence covered by section 742.1(c) of the Criminal Code, which carried a maximum prison sentence of 14 years or life.

A conditional sentence is a form of punishment that lets criminal offenders serve their sentences within their communities, instead of prison. In 2012, Parliament amended the criminal law to abolish conditional sentences for offences listed in ss.742.1(b) to (f) of the Criminal Code of Canada.

The following 3 requirements must be satisfied for an offender to be eligible for a conditional sentence:

(1) the offender must not have been convicted of any of those offences listed in ss.742.1(b) to (f);

(2) a court would otherwise impose a prison sentence of less than two years; and

(3) the safety of the community would not be endangered by the offender serving the sentence in the community.

If an offender meets these requirements, a judge will determine whether a conditional sentence is an appropriate sentence, and whether it is consistent with the fundamental principles of sentencing. This will include an analysis of section 718.2(e) of the Criminal Code, which directs courts to consider alternatives to imprisonment, with particular attention to the circumstances of aboriginal offenders.

Charter Challenge:

The Offender challenged the constitutionality of ss. 742.1(c) and 742.1(e)(ii). The sentencing judge dismissed her challenges under ss. 7 and 15 of the Charter of Rights and Freedoms. Section 7 guarantees everyone the right to life, liberty and security of the person, and s. 15 guarantees everyone the right to equal treatment before the law. With respect to s. 15, the sentencing judge found that the Offender had adduced “no statistical information” on the impact of removing conditional sentences for various offences on indigenous offenders. The sentencing judge decided to impose an 18-month prison sentence.

The Offender appealed the decision and the dismissal of her charter challenges to the Court of Appeal for Ontario. The Court of Appeal allowed the appeal, and ruled that ss. 742.1(c) and 742.1(e)(ii) violated s. 7 because they were too broad, and had violated s. 15 because they discriminated against indigenous offenders. The Court of Appeal sentenced the Offender to time served.

The Crown appealed the Court of Appeal’s decision to the Supreme Court of Canada. The Supreme Court allowed the Crown’s appeal.

742.1(c) & 742.1(e)(ii) of the Criminal Code are Constitutional:

The majority of the Supreme Court found that that ss. 742.1(c) and 742.1(e)(ii) are constitutional.

The Supreme Court ruled that there is no s. 15 charter violation. The majority noted that, although the crisis of indigenous incarceration is undeniable, the Offender did not show that the impugned provisions created or contributed to a disproportionate impact on indigenous offenders, compared to non‑indigenous offenders. The Offender needed to demonstrate this disproportionate effect as a first step under the Charter’s s. 15 analysis.

The majority of the Supreme Court also noted that there is no s. 7 charter violation because the impugned provisions achieve their purpose, which is to enhance consistency in the conditional sentencing regime by making imprisonment the typical punishment for certain serious offences and categories of offences. The majority added that maximum sentences are a reasonable proxy for the seriousness of an offence, and accordingly, the provisions do not deprive individuals of their liberty in circumstances that are unconnected to their objective. The Supreme Court restored the initial 18-month prison sentence. Because the Offender already served time in prison, no further order was made.

If you have questions about criminal sentences and are facing criminal charges, contact a criminal defence lawyer in your jurisdiction as soon as possible. Fahd Ahmed is a criminal defence lawyer based in Toronto, ON and defends against all criminal charges.

Blog posts are not legal advice.

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