The Native Women’s Association of Canada (NWAC) is applauding an Ontario court ruling Friday that strikes down a law that bars a judge from imposing conditional sentences for certain offences.
“Our young women are over-represented in the prisons across this country, largely as a result of the legacy of historical wrongs committed against our people,” said NWAC President Lorraine Whitman in a statement. “The courts must be given options to keep them out of the correctional system whenever possible.”
In a 2-1 ruling, the Ontario Court of Appeal found the provisions of the Criminal Code run afoul of the charter because of their impact on Indigenous offenders.
“The impugned amendments deprive the court of an important means to redress systemic discrimination against Aboriginal people when considering an appropriate sanction,” the court said. “The reality is that the act will result in more Indigenous offenders serving their sentences in jail rather than in their communities.”
The decision comes in the case of Ojibwa mother Cheyenne Sharma, 25, and member of Saugeen First Nation. In 2015 Sharma was caught smuggling almost two kilograms of cocaine into Canada from South America.
Evidence presented at trial was that Sharma was a first-time offender, in desperate financial straits and faced eviction from her home.
The trial court took her background of trauma into account on sentencing as required by the Criminal Code since 1999 in what are known as Gladue principles.
However, another part of the code, enacted in 2012 by the Conservative government under ex-prime minister Stephen Harper, bars community-based sentences, or conditional sentences for offences such as drug-trafficking that carry maximum penalties of at least 10 years in prison.
Sharma challenged the provisions, along with another that called for a two-year mandatory minimum sentence, as an infringement of her constitutional rights.
In February 2018, then-Superior Court Justice Casey Hill, who sentenced her to 17 months in custody, declared the mandatory minimum rule unconstitutional but dismissed Sharma’s challenge to the ban on a conditional sentence.
Sharma appealed, and various organizations intervened on her behalf. They argued that systems of discrimination based on gender, race, socioeconomic status and colonialism shape the experiences of Indigenous women.
Barring Indigenous people from conditional sentences as an alternative to prison time stops judges from fully applying the Gladue principles and denies offenders the full benefit, the groups said. The result, they argued, was that the provisions magnified the injustices the Gladue framework was intended to address.
The majority on the Appeal Court agreed.
“The impugned provisions, in their impact on Aboriginal offenders including Ms. Sharma, create a distinction on the basis of race,” Justice Kathryn Feldman said for the court. “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.”
Friday’s ruling, which the court refused to put on hold, applies to all offenders.
“This is a watershed moment in the law,” Sharma’s lawyer Nader Hasan said. “This decision will make sentencing more just for a significant number of people. It means that sentencing judges who want to dampen the effects of systemic discrimination will have another tool in their toolkit.”
The Appeal Court set aside Sharma’s prison sentence, saying a conditional term of 24 months less a day would have been appropriate. However, given that she had already served her custodial time, the Appeal Court substituted a sentence of time served.
In a lengthy dissenting opinion, Justice Bradley Miller said he found no charter breach and would have upheld the provisions. Parliament, he said, had the right to mandate prison time for offences such as drug-trafficking, regardless of who commits them.
-With files from the Canadian Press