Canada supreme court rules limits on conditional sentencing for Indigenous Canadians constitutional
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Canada supreme court rules limits on conditional sentencing for Indigenous Canadians constitutional

The Supreme Court of Canada Friday ruled 5-4 that banning conditional sentences for some offenses is constitutional. The case was brought by 20-year-old Cheyenne Sharma, who was arrested in a Toronto airport with over four pounds of cocaine in a suitcase. Because Sharma is of Indigenous descent, the court requested a Gladue report, which is a pre-sentencing report for Indigenous offenders.

Section 718.2(e) of the Canadian Criminal Code permits judges who are imposing a sentence to consider “all available sanctions, other than imprisonment” for Aboriginal offenders. Gladue was the first case to challenge section 718.2(e) of the criminal code, and the case established the factors that courts must take into account when sentencing Indigenous offenders.

Conditional sentencing allows offenders to serve their sentences under surveillance in their communities, rather than in jail.

Three requirements must be met before a conditional sentence can be imposed:

  1. The offender must not have been convicted of certain offences;
  2. A court would have otherwise imposed a prison sentence of less than two years; and
  3. The safety of the community would not be endangered by the offender serving the sentence in the community.

In 2012, Parliament changed the law to eliminate conditional sentences for certain offenses, such as offenses which carry a maximum sentence of over 10 years and involves drugs. Sharma, who is of Ojibwa descent and a member of the Saugeen First Nation, sought a conditional sentence.

Sharma challenged Section 742.1(e)(ii) and 742.1(c) of the criminal code as unconstitutional, because (e)(ii) suspends conditional sentences for offenses which carry a sentence of over 10 years and involve drug trafficking, and because (c) suspends conditional sentences for cases for which the maximum term of imprisonment is over 14 years. Sharma alleged these laws violated section 7 and section 15 of the Canadian Charter of Rights and Freedoms.

The court found the limits constitutional because, in the present case,  they did not exacerbate a “historical or systemic disadvantage”, and did not violate section 7 or section 15 of the charter. The court explained that “although the crisis of Indigenous incarceration is undeniable,” Sharma did not demonstrate “that the challenged provisions created or contributed to a disproportionate impact on Indigenous offenders, compared to non‑Indigenous offenders.”