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

Par Jasmine Razavi, McGill University law student

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.

Context

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].

Decision

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.

Commentary

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.

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[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.