Stockwoods Succeeds in Constitutional Challenge to Law Barring Conditional Sentences

On Friday, the Ontario Court of Appeal struck down a provision of the Criminal Code barring conditional sentences in R. v. Sharma, 2020 ONCA 478. The case involved a 20-year old Indigenous woman who committed a drug crime in circumstances of financial desperation. She would have been entitled to house arrest but for a 2012 law barring conditional sentences for a wide range of offences. As a result, she was separated from her two year old daughter and sentenced to 18 months in prison. The Court of Appeal ruled that the law violated Ms. Sharma’s equality rights under s. 15 of the Charter and was overly broad under s. 7 because the law’s effects had “no rational connection” to some of its effects.

Ms. Sharma was represented by Stockwoods lawyers Nader Hasan and Stephen Aylward. They were supported by the interveners, Aboriginal Legal Services Toronto, the Native Women’s Association of Canada, the Criminal Lawyers’ Association, the Asper Centre, the Legal Education and Action Fund, the Canadian HIV/AIDS Legal Network, and the HIV & AIDS Legal Aid Clinic Ontario.

Conditional sentences were introduced in 1995 as a restorative justice alternative to prison to combat the Indigenous overincarceration crisis in Canada. In 2012, Parliament restricted the availability of conditional sentences for a wide range of offences. In doing so, Feldman J.A. wrote for the majority of the Court, Parliament ignored evidence of the impact of this measure on the Indigenous overincarceration crisis. By limiting the tools available to judges to account for the legacy of colonialism in the sentencing process, the law had a discriminatory impact on Indigenous offenders.

“We are grateful to our client, Ms. Sharma, for her sacrifice in bringing this case forward”, said Mr. Hasan. Ms. Sharma will not personally benefit from the ruling as she had served her prison term prior to the court’s decision being rendered. “She is grateful this decision will assist others in the future.”

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Paul Le Vay

Brian Gover

Luisa Ritacca

Brendan van Niejenhuis

Samuel M. Robinson

Andrea Gonsalves

Gerald Chan

Nader R. Hasan

Edward (Ted) Marrocco

Justin Safayeni

Fredrick Schumann

Carlo Di Carlo

Stephen Aylward

Caitlin Milne

Gillian Moore

Dragana Rakic

Spencer Bass

Zachary Al-Khatib

Ephry Mudryk