CONSTITUTIONAL ISSUES - Canadian Charter of Rights and Freedoms - Equality rights - Equal protection of the law - Legal rights

Law360 Canada (November 4, 2022, 12:27 PM EDT) -- Appeal by the Crown from a decision of the Ontario Court of Appeal that struck down ss. 742.1(c) and 742.1(e)(ii) of the Criminal Code as unconstitutional. In 2015, Sharma, a then 20-year-old Indigenous woman, imported almost two kilograms of cocaine after her partner promised to pay her $20,000. She pled guilty to importation. Sharma had no prior record. She was a single mother facing eviction and was motivated to import the drugs by her impending homelessness. A Gladue report indicated Sharma’s grandmother was a residential school survivor, her mother had been in foster care and Sharma had been sexually assaulted and had dropped out of school due to financial difficulties. The sentencing judge found a conditional sentence was unavailable to Sharma and dismissed her Charter challenges against ss. 742.1(c) and 742.1(e)(ii) of the Criminal Code, which made conditional sentences unavailable for certain offences. Sharma was sentenced to 18 months’ imprisonment. A majority of the Court of Appeal found the impugned provisions were overbroad under s. 7 of the Charter and discriminated against Indigenous offenders under s. 15(1). It struck down the provisions and sentenced Sharma to time served....
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