SCC takes ‘step backward’ in Indigenous sentencing decision

By John L. Hill

Law360 Canada (November 7, 2022, 10:35 AM EST) --
John Hill
John Hill
Last week, the Supreme Court of the United States has heard argument that affirmative action programs practised at some universities like Harvard are unconstitutional. Defenders of affirmative action argue that historically deprived groups deserve special treatment.

Relaxing the rules for disadvantaged group members will strengthen the concept of inclusivity and go a long way to discontinue the effects of their previous wrongful treatment. The media has analyzed snippets of questioning from conservative judges on the court suggesting that the days of affirmative action in the United States may be drawing to a close. Doesn’t equality mean that everyone has an equal chance? Doesn’t special treatment for a few undermine those principles of equality and parity?

In Canada, we have s. 15(2) of the Charter ensuring the continuation of affirmative action programs. However, that does not mean that we are continuing to give preferential treatment to minorities that have suffered historically from mistreatment. In Canada that minority includes the Indigenous population. Members of Indigenous communities have been deprived of their land and their culture, have suffered mistreatment in residential schools and the Indigenous population is grossly overrepresented in our prison populations.

One would have expected that Indigenous offenders might expect more lenient treatment from our courts now that the historical wrongs have been graphically portrayed. We have been taking great strides forward in recognizing and reshaping our relationship with the Aboriginal population. That is, until last week, when the Supreme Court of Canada took a step backward in the R. v. Sharma [2022] S.C.J. No. 39 decision.

On June 27, 2015, Cheyenne Sharma, a 20-year-old Indigenous woman without a criminal record landed at the Pearson International Airport on a Caribbean Airline flight from Surinam via Port of Spain, Trinidad. While undergoing inspection at the border, her suitcase was unlocked, and emptied of its contents, an incision into the siding of the luggage revealed a white powdery substance. Two bags containing drugs were concealed in the lining of the suitcase.

A NIC test disclosed the substance to be cocaine. Sharma was arrested believing that she could be tried “in a native court.” Subsequently, the offender provided a videotaped statement to the RCMP confessing to her role in the unlawful importation and disclosing that she was to be paid $20,000 for bringing drugs into Canada. The plane tickets were purchased for her — “They organized everything. I just did — I just do what I was told.” 

She pleaded guilty to importing two kilograms of cocaine, contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19. The offence carried a mandatory minimum sentence of two years’ imprisonment. The Crown initially served notice that it intended to seek the mandatory minimum, but subsequently withdrew the notice and instead sought a sentence of 18 months in light of the personal hardship the appellant had endured. The sentencing judge determined that an appropriate sentence was 18 months’ imprisonment, reduced to 17 months to take account of the appellant’s presentence detention and lengthy periods on bail. Would a conditional discharge or a suspended sentence have been more reasonable instead of mandatory imprisonment given the accused’s impoverishment and native background? The appellant appealed her sentence on the ground that s. 742.1(c) and (e)(ii) of the Criminal Code were unconstitutional because they contravened s. 15 of the Charter because their effect was to discriminate against Indigenous offenders on the basis of race, and infringed on her s. 7 liberty rights because they were over broad and arbitrary.

In a strongly worded dissent, Ontario Court of Appeal Justice Bradley Miller considered Parliament’s reasoning was categorical: offenders who chose to engage in drug trafficking crimes — whether they did so from circumstances of poverty or riches — inflicted harm on their communities, and thus upset the balance of benefits and burdens in a way that could only be restored through a focus on deterrence and denunciation, and the imposition of the more extreme deprivation of liberty coming with incarceration (R. v. Sharma] 152 O.R. (3d) 209).

The Supreme Court of Canada bought into the argument. In a Nov. 4 article in The Lawyer’s Daily, Aboriginal Legal Services director Jonathan Rudin is quoted as saying: It’s a 5-4 decision, and it reads like almost two completely different decisions,” noting that there is “hardly any mention in the majority decision about the realities of Indigenous ‘mass incarceration.’”

In a fashion similar to the conservative bent of the U.S. Supreme Court, our top court is signalling a reliance on the principles of deterrence and denunciation when it was open to consider the more culturally sensitive sentencing principle of restraint. But there is light. Senate Bill C-5 hopes to remedy the situation by repealing certain mandatory minimum penalties and allow greater use of conditional sentences.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at

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s firm, its clients, The Lawyer’s Daily, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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