Supreme Court to examine limits on conditional sentencing

The Supreme Court of Canada will examine the constitutionality of a law that prevented a judge from allowing an offender to avoid jail by imposing a conditional sentence for certain crimes.

The top court has agreed to review an Ontario Court of Appeal ruling that found the Criminal Code provisions violated the charter because of their effect on Indigenous offenders.

In 2016, Cheyenne Sharma, a young Indigenous woman, pleaded guilty to importing two kilograms of cocaine in exchange for $20,000 from her boyfriend, a task she carried out to avoid eviction for herself and her daughter.

Because Sharma is of Ojibwa ancestry and a member of the Saugeen First Nation, the trial court took her background of trauma into account for sentencing, as required by the Criminal Code since 1999 under the so-called “Gladue principles.”

However, another part of the Code — enacted in 2012 under then-prime minister Stephen Harper — bars community-based sentences for offences such as drug-trafficking that carry maximum penalties of at least 10 years in prison.

Sharma challenged the provisions — along with another that called for a two-year mandatory minimum sentence — as an infringement of her constitutional rights.

In February 2018, then-Superior Court justice Casey Hill, who sentenced her to 17 months in custody, declared the mandatory minimum rule unconstitutional but dismissed Sharma’s challenge to the ban on a conditional sentence.

Sharma contested Hill’s decision and the Court of Appeal found the Criminal Code sections violated the charter, saying they discriminated against Indigenous offenders on the basis of race and were overbroad in relation to their purpose.

“The provisions deny Ms. Sharma a benefit in a manner that has the effect of reinforcing, perpetuating and exacerbating her disadvantage as an Aboriginal person,” Justice Kathryn Feldman wrote for the Appeal Court.

As usual, the Supreme Court gave no reasons for agreeing to hear the Crown’s appeal of the Court of Appeal decision.

No date has been set for the high court hearing, which could take place as early as this year.  

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