Native Women’s Association of Canada says SOC decision undermines Gladue framework and perpetuates overincarceration of Indigenous women

The following are remarks by Adam Bond (Nov. 4), Manager of Legal Services for the Native Women’s Association of Canada (NWAC), following the release of the decision of the Supreme Court of Canada in the case of His Majesty the King in Right of Canada v. Cheyenne Sharma, to which NWAC was an intervenor:

The Supreme Court of Canada today released its decision in the case of R v Sharma. The majority’s reasons in the split (5:4) decision allowed the appeal, determining that the 2012 Safe Streets and Communities Act’s (SSCA) limitations on the availability of community-based sentencing options are constitutional.

This decision upholds provisions of the Criminal Code that seriously undermine the Gladue framework and will very likely further perpetuate the overincarceration of Indigenous people in Canada. The damage these provisions cause to the Gladue framework also impedes reconciliation processes by exacerbating intergenerational family separation cycles and denying Indigenous governing bodies their rights and jurisdiction over justice, rehabilitation, and healing.

It is absolutely imperative that Parliament act immediately to implement reforms to preserve and improve the Gladue framework, and to work with Indigenous peoples to ensure their rights and jurisdiction in these areas are respected.

In 2015, Ms. Sharma, a 20-year-old Indigenous woman, confessed to importing a Schedule I substance (cocaine) into Canada. She was a single mother facing eviction from her home and had no prior criminal record. She pled guilty and sought a conditional (community-based) sentence under s. 742.1 of the Criminal Code; however, the sentencing judge determined that the 2012 SSCA amendments to the conditional sentence provisions made such an option unavailable to her.

Ms. Sharma challenged the provisions limiting the availability of conditional sentences as unconstitutional because they discriminated on the basis of race. The sentencing judge dismissed this challenge and Ms. Sharma brought an appeal to the Ontario Court of Appeal (ONCA).

A majority for the ONCA accepted that the impugned provisions violated section 7 liberty rights and section 15 equality rights under the Charter and struck them down. The majority for that Court determined that using the maximum available sentence to deprive the availability of a conditional sentence was over-broad as it treats both the least and the most serious criminal conduct the same.

The majority for the ONCA also found that the impugned provisions violated s. 15 because of the direct link between the s. 718.2(e) Gladue framework and the s. 742.1 conditional sentencing provisions. The Gladue framework operates to ensure Indigenous offenders are treated equally in sentencing by specifically instructing sentencing judges to consider alternatives to incarceration, giving particular attention to the circumstances of Indigenous peoples.

By constraining the availability of the alternatives to sentencing under the s. 742.1 conditional sentence provisions, the impugned provisions directly impaired the Gladue framework. This resulted in a disproportionate effect on Indigenous offenders that rely on the Gladue framework to obtain fair and proportionate sentences.

The fundamental principle of sentencing, as set out in the sentencing provisions of the Criminal Code, is that sentences must be proportionate to both the gravity of the offence and the degree of responsibility of the offender.

While non-Indigenous offenders do not rely on the Gladue framework to obtain a proportionate sentence, Indigenous offenders do. This is because failing to take into account the circumstances of Indigenous peoples in sentencing ignores the role of colonization, residential schools, and systemic discrimination in the degree of responsibility of Indigenous offenders.

Canada appealed the ONCA decision to the Supreme Court of Canada (SCC).

Despite recognizing the link between the Gladue framework and the conditional sentence provisions, the majority for the SCC refused to acknowledge a disproportionate impact of the impugned provisions on Indigenous peoples, as required under the first step of the s. 15 test. The majority determined that Ms. Sharma was required to provide something more to prove the differential treatment, such as expert evidence or statistical data.

Writing for the dissent, Karakatsanis, J determined that the impugned provisions do infringe s. 15 of the Charter because their restrictions on the availability of conditional sentence options perpetuate the disadvantage suffered by Indigenous offenders.

Importantly, the majority’s reasons provide no guidance on the extent to which Parliament can constrain or eliminate the provisions of the Criminal Code that give practical effect to the Gladue framework. While Karaktsanis, J explained that courts cannot give proper effect to s. 718.2(e) without the tool of community-based sentencing options, the majority’s reasons suggest that, in the absence of expert or statistical evidence that differential treatment is caused to Indigenous peoples by diminishing alternatives to incarceration, limitations on these sentencing options are Charter-compliant.

While the Gladue framework alone has not single handedly curbed the rising tide of overincarceration of Indigenous peoples in Canada, the undermining of this framework will almost certainly serve to exacerbate the representation of Indigenous women in prisons, perpetuate intergenerational cycles of family separation, and impede reconciliation.

Parliament must act immediately to address this worsening crisis. While there is currently a bill before Parliament that will address the specific limitations on conditional sentences at issue in the Sharma case, much greater efforts are needed to restore and improve the Gladue framework.