The Supreme Court of Canada’s 5-4 decision in Sharma has left many in the legal community disappointed with its interpretation of Section 15 Charter rights and in addressing the impact of mandatory minimum sentences on Indigenous people, women in particular. Still, there is reason for optimism that the federal government’s Bill C-5, currently before the Senate, will mark an extra step towards removing some of them from the Criminal Code.
“The outcome is really frustrating,” says Kyla Lee, a criminal defence lawyer with Acumen Law Corporation and the vice-chair of the CBA’s criminal justice section. “There is obviously a significant conflict between Sharma and previous Section 15 decisions, which talks about where the burden lies in proving that something is discriminatory.”
In Sharma, the majority allowed an appeal by the Crown that restored the accused’s sentence of imprisonment, thereby affirming the constitutionality of provisions that restrict the availability of conditional sentences for certain Criminal Code offences — in the case at hand, for importing cocaine.
Lee takes issue with the majority’s view that it needs statistical and academic evidence showing that eliminating conditional sentencing orders contributes to the over-incarceration of Indigenous people. It should have been able to draw the inference, she says.
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