The Supreme Court of Canada is pictured in Ottawa on Tuesday Sept. 6, 2022. In a 5-4 decision issued Nov. 4, 2022, the court ruled against a lower court’s decision regarding conditional sentences and Indigenous offenders. THE CANADIAN PRESS/Sean Kilpatrick

The Supreme Court of Canada is pictured in Ottawa on Tuesday Sept. 6, 2022. In a 5-4 decision issued Nov. 4, 2022, the court ruled against a lower court’s decision regarding conditional sentences and Indigenous offenders. THE CANADIAN PRESS/Sean Kilpatrick

OPINION: Supreme Court decision a setback for justice for Indigenous offenders

‘A sad day for Indigenous defendants and the slow path to reconciliation’ – BC Civil Liberties Association

Seven years ago, Cheyenne Sharma flew from the South American country of Surinam to Trinidad with a final destination of Toronto.

The single mother of Ojibwe ancestry had with her a suitcase, the lining of which contained a little under two kilograms of cocaine with an estimated street value of $130,000.

The then 20-year-old pleaded guilty to importing cocaine. Because of her Indigenous heritage and as a member of the Saugeen First Nation, a Gladue report was prepared. Gladue refers to the 1999 Supreme Court of Canada ruling, which establishes factors that courts must take into account when sentencing Indigenous offenders.

Sharma’s grandmother attended residential school. Her mother spent time in foster care, and when Sharma was five years old she witnessed her father be handcuffed and returned to Trinidad where he was convicted of murder.

Her teen years included being raped at 13 by two men, working as a prostitute at 15, and attempted suicide, and a pregnancy at 17.

At age 20 with a young daughter, Sharma was behind on the rent and desperate to stave off homelessness. Her boyfriend offered her $20,000 to take the “vacation.”

“I said OK because I didn’t have any way to get the money to pay off my bills and it needed to be paid or else me and my daughter would have gone homeless and I couldn’t let that happen,” she told a Gladue caseworker.

Her lawyer asked for a conditional sentence, a type of sentencing introduced in 1996 that allow offenders to serve their time in the community under strict conditions.

That 1996 law listed several charges where conditional sentences are not eligible, including cocaine importation.

Her lawyer also put forth Charter challenges under sections 7 and 15. Section 7 guarantees everyone the right to life, liberty and security of the person, while section 15 guarantees the right to equal treatment before the law.

The Ontario Superior Court judge agreed that Sharma was not eligible for a conditional sentence and rejected the Charter challenges. She appealed, and the Court of Appeal for Ontario granted her appeal, finding the sentencing judge erred in his rejection of the section 15 argument.

“The impugned provisions denied the benefit of a conditional sentence in a manner that had the effect of reinforcing, perpetuating or exacerbating the disadvantage of Aboriginal offenders, and were therefore contrary to section 15 of the Charter,” the appeal court found.

Good news for Sharma, right? Not so fast. Crown appealed that decision to the Supreme Court of Canada, and in a split 5-4 decision issued last Friday (Nov. 4), the majority overturned the appeal court decision and reinstated the 18-month sentence.

Writing for a majority of the judges, Justices Russell Brown and Malcolm Rowe said there was no section 15 Charter violation.

“The majority noted that although the crisis of Indigenous incarceration is undeniable, Ms. Sharma did not demonstrate that the challenged provisions created or contributed to a disproportionate impact on Indigenous offenders, compared to non‑Indigenous offenders,” according to an SCC summary of the case.

All court decisions are precedents for the future, particularly Supreme Court of Canada ones, so this is an important decision related to Indigenous offenders and the charter.

The BC Civil Liberties Association (BCCLA) intervened in the case and in a press release issued the same day as the decision, expressed disappointment.

In particular, the five SCC justices put the burden of proof regarding equal treatment before the law on Indigenous offenders.

“The decision marks a sad day for Indigenous defendants and the slow path to reconciliation,” said Vincent Larochelle, counsel for the BCCLA. “More generally, the decision represents a significant setback in section 15 jurisprudence for equality-seeking groups by an undue insistence on proving causality, amongst other things. It is particularly unfortunate given that groups subject to discrimination are already at a significant jurisprudential disadvantage when it comes to access to justice.

“The Supreme Court of Canada was not yet ready to open the doors of justice fully to equality-seeking groups. We keep our hearts in the present and our gaze to the future.”

Prison is a necessary evil for many offenders, but it’s not a helpful place if anything more than punishment is what we want.

Rehabilitation and reconciliation should be the goal in Canada, but this decision flies in the face of that.

RELATED: Orange Shirt Day Society calls on Conservatives to support a National Day of Reconciliation

RELATED: Federal Justice minister tours B.C. residential school site with First Nations leaders


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