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mercredi 14 octobre 2020

Discrimination and Overbreadth, why the ONCA struck down Criminal Code provisions in R v. Sharma

Jasmine Razavi, McGill University law student

Laurent-Alexandre Duclos-Bélanger, lawyer

A recent Ontario’s Court of Appeal decision could change the circumstances in which a Court can authorize a conditional sentence for an accused, despite the verbatim content of the Criminal Code. Indeed, the Court in R v. Sharma invalidated provisions of the Criminal Code that make conditional sentencing unavailable for offenders who are guilty of the import, export, trafficking or production of drugs. With much consideration of the unique treatment of Aboriginal offenders in the Canadian penal system by Feldman J.A., who wrote the majority decision, R. v. Sharma provides for a very interesting read.



On June 27, 2015, Ms. Sharma arrived at the Toronto Pearson International Airport after taking a trip to Surinam with a suitcase containing 1971.5 grams of cocaine. She had agreed to retrieve the drugs in exchange for $20,000 from her boyfriend to avoid homelessness for herself and for her daughter. She pleaded guilty to the Royal Canadian Mounted Police’s charges under s. 6(1) of the Controlled Drugs and Substances Act (CDSA), which condemns importing and exporting substances under the Act[1]. 


Ms. Sharma, who was 20 at the time of the offence and had no prior criminal record, is of Ojibwa ancestry and is a member of Saugeen First Nation. She suffered significant personal hardship growing up, which was taken into consideration, and was deemed to be an intergenerational survivor of the government’s residential school system, an effort meant to eradicate her people’s cultural heritage[2].



Pursuant to ss. 6(3)(a.1) and 8 of the CDSA, importing more than one kilogram of cocaine attracts a mandatory minimum sentence of two years’ imprisonment[3]. Section 718.2(e) of the Criminal Code specifically instructs courts to consider whether to impose a conditional sentence, namely a sentence served in the community under strict conditions for the sentencing of an Aboriginal offender[4]. However, the Safe Streets and Communities Act, which is an amendment to the Criminal Code, modifies s. 742.1 of the Criminal Code to make conditional sentences unavailable for offenders convicted of certain categories of offences, under which Ms. Sharma falls[5]. Feldman J.A. specifies that “[c]onditional 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”[6]. The enactment of conditional sentence provisions was a tool served to address the overrepresentation of Aboriginal peoples in Canadian prisons[7].        


Ms. Sharma, in this appeal, contests the constitutionality of ss. 742.1(c) and 742.1(e)(ii) of the Criminal Code. These provisions allow a conditional sentence only if the offence is not indictable, in which case the maximum term of imprisonment is 14 years, and if the offence did not involve, notably, the import, export, trafficking or production of drugs[8]. She alleged that these provisions are unconstitutional for violating the Canadian Charter of Rights and Freedoms because (1) they infringe the s. 15 rights of Aboriginal offenders by discriminating on the basis of race, (2) they infringe her s. 7 liberty rights because they are overbroad and arbitrary, (3) neither infringement can be saved by s. 1[9].


For the provisions to violate Ms. Sharma’s s. 15 rights, they must have created a distinction on the basis of enumerated or analogous ground, and they must fail to respond to the actual capacities and needs of the members of the group and instead impose burdens or deny a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating their disadvantage. The Court found that these conditions were fulfilled.


The provisions created a distinction on the basis of race, due to their impact on Aboriginal offenders, who suffer from substantive inequality in the criminal justice system. The conditional sentence, a means of redressing the inequality Aboriginal people face in sentencing, loses its purpose if its availability is limited, perpetuating the already existing disadvantage of systemic overincarceration of Aboriginal offenders[10]. The provisions also provide a blow to the remedial policy of the Criminal Code, allocating these remedies in a discriminatory fashion and reinforcing the disadvantage of Aboriginal offenders[11]. Feldman J.A. notably emphasizes the evidence brought forward by the defense, regarding the relationship between the historic disadvantage endured by Aboriginal people in Canada and their overrepresentation in the criminal justice system[12]. Given the circumstances, Ms. Sharma would have been a prime candidate for a conditional sentence, had it been made available to her.


The Court also found that ss. 742.1(c) and 742.1(e)(ii) deprived Ms. Sharma of her right to liberty under s.7 of the Charter due to the provisions’ overbreadth, relative to the legislative intent of the Criminal Code. The purpose of the specific Criminal Code provisions is to maintain the integrity of the justice system by granting incarceration sentences to serious offenders[13]. The provisions were deemed poorly tailored to the purpose of the legislation, since the only offenders who were denied a conditional sentence were those whose circumstances would ordinarily grant them a sentence at the lower end of the spectrum[14]. The degree of responsibility of the offender in carrying out the crime is highly contextual, which should play a critical role in determining the seriousness of the offence, without which the sentence is disproportionate. Maximum penalties, in jurisprudence, are rarely ever imposed[15]. The Court did not find that the provisions were arbitrary.


Finally, the Crown was unable to justify the provisions’ infringement of Charter rights under s. 1. The Court therefore declared invalid ss. 742.1(c) and 742.1(e)(ii) of the Criminal Code. Ms. Sharma should have received a conditional sentence of 24 months less a day, but seeing as she had served her custodial sentence, no further time was imposed.


B.W. Miller J.A., dissenting, found that the provisions violate neither s. 7 nor s. 15(1) of the Charter. The distinction that the Criminal Code provisions created, under the Andrews methodology, did not constitute wrongful discrimination according to s. 15 of the Charter[16]. In deciding not to carve out an exemption for Aboriginal offenders after having debated the question, Parliament expressed that these provisions did not widen the gap between non-Aboriginal offenders and Aboriginal offenders charged with the same offence[17]. Parliament rather accepted the side-effect that additional Aboriginal offenders would be incarcerated as a result of the adoption of these provisions, in face of the provisions’ importance for society[18]. B.W. Miller J.A wrote that “Parliament’s legislative decision may be harsh. It may even be mistaken or unwise. But it is not for any of these reasons discriminatory”.[19] An analysis under s. 1 was also conducted, although unnecessary, in support of s. 15. The dissent as well disagreed on the finding of overbreadth under s.7.



This Ontarian case is interesting, as it contradicts the finding of another recent appellate case from Saskatchewan. In his trial,  Mr. Neary was convicted of possession of marijuana for the purpose of trafficking under s. 5(2) of the CDSA, trafficking in marijuana in an amount exceeding three kilograms contrary to s. 5(1) of the CDSA, and possession of proceeds obtained by a crime contrary to ss. 354(1) and 355(b) of the Criminal Code. The appellant also pled guilty to possession of psilocybin contrary to s. 4(1) of the Act[20].

Mr. Neary had no criminal record or history of violence. He had volunteered in the past, had received a university scholarship to play football and an academic scholarship, had graduated as class valedictorian in high school, maintained good grades and had great community and family support[21]. But for the Act, Mr. Neary would have been a candidate for conditional sentence. Mr. Neary argued that the Act breached ss. 7 and 12 of the Charter as they are overbroad and infringe his life, liberty or security interests, violating the principles of fundamental justice in a way that is not saved by s. 1 of the Charter.[22] The Saskatchewan Court of Appeal dismissed these claims and stated that the impressive personal circumstances of Mr. Neary did not outweigh the seriousness of the offence and the level of moral culpability[23]. While aggravating and mitigating circumstances were taken into account, the Court must implement the Act’s objectives of deterrence and denunciation and could not rely on the federal government’s statement of intent to “legalize marijuana” to relax the application of the law[24].


The strong substantive value of the dissent, the important consequences of the majority decision, as well as contradictory decisions from different jurisdictions suggest that this case will likely be appealed to and reviewed by the Supreme Court of Canada. This could potentially lead to an amendment of the Criminal Code, affecting all Canadian provinces and territories.


The full decision can be found here.

[1] R. v. Sharma, 2020 ONCA 478 at paras 5-7 [Sharma].

[2] Ibid at paras 7-10.

[3] Ibid at para 13.

[4] Ibid at para 14.

[5] Ibid at para 15.

[6] Ibid at para 30.

[7] Ibid at paras 33, 38.

[8] Ibid at para 27; Criminal Code, RSC 1985, c C-46, s 742.1(c), 742.1(e)(ii).

[9] Sharma, supra note 1 at para 27.

[10] Ibid at paras 67, 70, 85.

[11] Ibid at paras 130-132.

[12] Ibid at paras 90-105.

[13] Ibid at para 148.

[14] Ibid at para 161.

[15] Ibid at para 167.

[16] Ibid at paras 218- 260.

[17] Ibid at para 258.

[18] Ibid at para 259.

[19] Ibid at para 260.

[20] R v. Neary, 2017 SKCA 29 at para 1.

[21] Ibid at para 5.

[22] Ibid at para 23.

[23] Ibid at para 53.

[24] Ibid at para 50.

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