An Ontario senator says it’s a sad day for Indigenous women behind bars after a Supreme Court of Canada decision Friday.
“I’m very disappointed in the majority decision,” said Kim Pate (Ind.)
“It feels like they’ve got their heads in the sand and it’s some nice academic arguments, but misses the totality of the inequality that exists, particularly for poor Indigenous women with past histories of abuse and especially when they’re single moms trying to survive abject poverty.”
The Supreme Court upheld the constitutionality of provisions that prevent an offender from avoiding jail by serving their sentence in the community, finding no evidence they had a disproportionate effect on Indigenous people.
In a 5-4 decision Friday, the top court overturned an Ontario Court of Appeal ruling that found the Criminal Code provisions violated the Charter of Rights and Freedoms.
Adam Bond, a lawyer with the Native Women’s Association of Canada, said it is amazing the Supreme Court failed to fully account for the historic injustices Indigenous women face and why they end up in incarceration.
“But the majority said that, interestingly, that Ms. Sharma should have produced something more,” he said. “Some more evidence, perhaps, expert evidence to prove that the impugned provisions do cause this distinction on the basis of race.”
The decision comes in the case of Cheyenne Sharma, a young Indigenous woman who pleaded guilty in 2016 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.
Sharma successfully challenged a Criminal Code provision that called for a two-year mandatory minimum sentence.
However, a judge rejected her constitutional challenge of another provision that disallowed a conditional sentence for offences that can entail a stiff prison term.
Ultimately, she received a term of 18 months in custody, less one month for pre-sentence detention and time on bail.
Sharma contested the decision and the Ontario Court of Appeal ruled that two Criminal Code sections relevant to her case violated the Charter, saying they discriminated against Indigenous people on the basis of race and were overbroad in relation to their purpose.
Under the Criminal Code sections in question, a conditional sentence could not be imposed when an accused person was convicted of an offence prosecuted by way of indictment with a maximum term of 14 years or life, or an offence prosecuted by indictment involving the import, export, trafficking or production of drugs, where the maximum penalty is 10 years in prison.
“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 a majority of the Court of Appeal in 2020.
No criminal record
Sharma was 20 years old, with no criminal record, when she brought the cocaine into Canada.
The Court of Appeal noted the woman of Ojibwa ancestry, a member of the Saugeen First Nation, had a particularly difficult upbringing and has struggled with depression and anxiety.
As a child, Sharma and her family moved in with her grandmother after her father was arrested and deported to Trinidad.
Sharma was raped by two men while walking home at age 13. She was engaged in sex work by age 15. At 17, she became a single mother.
Her grandmother attended two residential schools as a child, prompting the sentencing judge to describe Sharma as “an inter-generational survivor of the government’s residential school effort to eradicate the cultural heritage of her people.”
The Court of Appeal found a conditional sentence of 24 months less a day should have been imposed.
Conditional sentences were introduced in the mid-1990s, allowing a judge to have the offender serve time in the community, including through a form of house arrest with strict conditions attached. The measures were aimed at encouraging principles of restorative justice and reducing reliance on time behind bars.
A conditional sentence could be imposed if the offence did not carry a minimum sentence, the sentence handed down was less than two years, and serving the sentence in the community did not pose a danger.
An additional provision instructed sentencing judges to consider alternatives to prison for all offenders, with particular attention to the circumstances of Indigenous people.
The Safe Streets and Communities Act, introduced by the Conservative government of Stephen Harper, was passed by Parliament in 2012, eliminating the availability of a conditional sentence in various circumstances, including those in Sharma’s case.
In its decision Friday, a majority of the Supreme Court said Sharma did not show that the Criminal Code provisions in question created or contributed to a disproportionate effect on Indigenous offenders, relative to non-Indigenous ones, as she must do to demonstrate a violation of the Charter guarantee of equality under the law.
The court also found the provisions are not arbitrary or overbroad, and therefore do not breach the Charter requirement that a law must respect the principles of fundamental justice if interfering with life, liberty or security of the person.
Bond said Canada’s top court has now basically thrown the issue back to Parliament and left it up to MPS to determine how conditional sentences be best applied to Indigenous women who find themselves on the wrong side of the law.
“It’s very important, not that just that Parliament move forward with these Bill C-5 amendments but they do a lot more,” said Pate. “Parliament needs to act because the Gladue framework is in crisis. It’s been damaged, it’s not working.
“It was never intended to be the one kind of solution to the over representation of Indigenous people. It is just one tool. Now it’s been harmed. So, we can be sure that the issues are going to get worse. That the over representation is going to get worse.”
The Trudeau government has put forward legislation that would do away with mandatory minimum sentences for some crimes, but Pate and others in the Senate want to amend Bill C-5 so that conditional sentences can be more broadly applied and recognize the disadvantages Indigenous women currently face.
She said now is the time for legislators to rise to the challenge.
“We have not finished with Bill C-5 yet, and knowing this is the message that the court is sending to us that if we want to see something different, then we better act. So, let’s act.”
In an emailed statement, a spokesperson for Justice Minister David Lametti said: “It is important to remember that this decision only looked at the constitutionality of the existing restrictions on Conditional Sentencing Orders (CSO) and did not weigh in on whether it is desirable for judges to have more discretion to impose a CSO in a wider range of scenarios.
“The Government believes that providing judges with greater discretion at sentencing will produce fairer and more effective outcomes for everyone, without undermining public safety,” the statement continued.
“That is why Bill C-5 proposes reforms that would provide judicial discretion to impose sentences that reflect the seriousness of the offence and that maintain public safety while addressing the obvious and damaging over-representation Indigenous people, Black people and marginalized communities in the criminal justice system. We hope Senators take this opportunity to do the right thing and finally pass this important Bill so that CSO discretion gets enshrined immediately.”
With files by The Canadian Press