The case, being heard on March 23, involves Cheyenne Sharma, a woman of Ojibwa ancestry and member of the Saugeen First Nation who, according to court documents, pleaded guilty to illegally importing cocaine into Canada.
According to the Court of Appeal for Ontario ruling in R. v. Sharma, 2020 ONCA 478, Sharma was arrested June 2015 after authorities found almost two kilograms of cocaine in her luggage upon her return from a trip to South America.
The Appeal Court decision explains that Sharma had agreed to fly to the country of Suriname “to retrieve the drugs in exchange for $20,000 from her boyfriend to avoid homelessness for herself and for her daughter.”
Sharma, then aged 20, confessed to RCMP officers that she had been paid to transport the drugs, which had a street value of around $130,000.
She had no previous criminal record.
At the time, Sharma was in a desperate situation: She was months behind on her rent, feared the eviction of herself and her young daughter and lacked money to pay the bills.
The Appeal Court noted that she had endured “significant personal hardship growing up” — teenage pregnancy, depression, rape, poverty and attempted suicide.
Due to the nature of the crime, Sharma’s sentence would be subject to a section of the Controlled Drugs and Substances Act, which puts in place a mandatory minimum sentence of imprisonment for importing more than one kilogram of illegal drugs.
She was also subject to the Safe Streets and Communities Act — modifications made in 2012 to s. 742.1 of the Criminal Code which makes conditional sentences unavailable for those convicted of certain offences.
At sentencing, Sharma argued the two-year mandatory minimum “infringed her [Charter] right to be free from cruel and unusual punishment” and that the restriction on conditional sentences violated her Charter rights to liberty and equality.
She also said the Criminal Code calls for “all available sanctions, other than imprisonment” be considered — particularly for Indigenous offenders.
The sentencing judge granted Sharma’s first argument, striking down the two-year minimum, but “declined to rule on the constitutionality of s. 742.1(b), the provision denying conditional sentences to offenders convicted of offences that attract a mandatory minimum penalty.”
He acknowledged the 2012 Criminal Code changes that restricts the availability of conditional sentences, and felt he was unable to had down such a sentence in this case.
As a result, Sharma was sentenced to 18 months in prison (less one month for her time in pre-sentence custody and other factors).
But Ontario’s Appeal Court allowed her appeal, with the majority finding that her Charter rights had been violated, and that a conditional sentence of 24 months less a day would have been more appropriate.
Now, Sharma’s case is before the Supreme Court.
Despite Sharma coming from outside the territory, Nunavut Legal Aid will appear before the court to argue for the importance of conditional sentences for Nunavummiut offenders.
Madeleine Redfern, Nunavut Legal Aid
Redfern told The Lawyer’s Daily that the watershed Supreme Court cases of R. v. Gladue [1999] 1 S.C.R. 688 and R. v. Ipeelee, 2012 SCC 13 made it so judges must consider the historical and life circumstances of Indigenous offenders in sentencing.
“We will be bringing our territorial perspective on the effect of the Safe Streets and Communities Act, which has effectively removed the judge’s discretion on being able to consider conditional sentences for certain offences,” said Redfern. “We’re a unique territory, where 85 per cent of the population are Inuit. … Gladue and Ipeelee requires … judges to consider not only the individual’s historical circumstances but that of the society that they are from. Previously to the enactment of the legislation, judges did have that discretion, and depending on the circumstances of the context of the individual, conditional sentences were sometimes the most appropriate for the individual, the family and the community.”
Redfern called Nunavut unique in that most offenders are sent outside the territory to serve their prison sentences, far from the place they know.
“It means that those individuals are removed from their families, from their friends, from their communities, their culture during that period of incarceration,” she said. “It’s been shown time and time again that the need to assist an individual to be able to rehabilitate and reintegrate back into the community, they need programming, they need support, and, ideally, that ultimately we need to be aware of the effects of completely removing an individual even out of the territory.”
She said many Inuit in Nunavut cannot afford to visit loved ones jailed outside the territory.
“It is important to understand the cost of an airline ticket,” she said. “Kimmirut, which is just our nearest community from Iqaluit, which is approximately a 15, 20-minute airplane journey, can cost anywhere from $800 to $1,200. To go from Iqaluit to Ottawa is an additional $1,200 to $2,000, depending on the time of year that you travel, [and] whether a seat sale is available. When you’re talking about a community such as Grise Fjord, where there is only two flights coming in and out of the territory, that ticket from Grise Fjord to Ottawa is easily over $5,000 for one person, which then requires them to overnight in Resolute Bay at a cost of almost $300 a night; [and] possibly overnight in Iqaluit — again, which is $300 a night.”
Then there is the matter of the time and money it takes to get to the prison, itself — be it in Ontario, Alberta or Manitoba.
According to LSB’s factum to the Supreme Court, Nunavut has the highest incarceration rate in the country: 667 per 100,000, compared to the national rate of 127 per 100,000.
“Parliament’s decision to limit the availability of conditional sentences in the Safe Streets and Communities Act (SSCA) has had a concrete and material impact on Inuit Nunavummiut,” it states.
It goes on to detail that before the SSCA came into force, an average of 357 Nunavummiut were sentenced to prison every year. Since then, that average has increased to almost 477.
Nader Hasan, Stockwoods
When asked for comment, Sharma’s lawyer, Nader Hasan, spoke of the impact on Indigenous offenders, generally.
“Canada suffers from [a] crisis of over-incarceration of Indigenous persons,” said Nader, a partner with Stockwoods in Toronto. “Conditional sentences are a direct and necessary tool to combat that over-incarceration and break the cycle of community dislocation and family separation. The Safe Streets and Communities Act put conditional sentences out of reach for far too many people. That law did not make us safer but resulted merely in more people being locked up in prison who did not need to be there.”
Crown Jennifer Conroy said “[t]he appeal engages an important issue of whether restrictions on conditional sentences are constitutional.”
“In this case, the Supreme Court of Canada will provide important guidance for Parliament and Canada’s courts.”
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