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SENTENCING - Controlled drugs and substances - Importing or exporting - Conditional sentence

Thursday, September 03, 2020 @ 6:10 AM  

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Appeal by the accused from a sentence of 17 months’ imprisonment for importing cocaine. The sentencing judge dismissed the appellant’s application to strike down s. 742.1(c) of the Criminal Code which removed the availability of a conditional sentence for offences prosecuted by indictment, where the maximum penalty was 14 years or life in prison, under s. 15 of the Canadian Charter of Rights and Freedoms (Charter) because its effect was to discriminate against Aboriginal offenders based on race. The appellant now sought an order also striking down s. 742.1(e)(ii) of the Criminal Code which removed a conditional sentence for an offence prosecuted by indictment involving the import, export, trafficking or production of drugs, where the maximum term of imprisonment was 10 years. The appellant argued these provisions violated ss. 7 and 15 of the Charter. The appellant, 25, was a First Nation member and a single mother. She imported the cocaine because she was behind on rent and facing eviction. She had no prior record and pleaded guilty. The sentencing judge characterized her as an intergenerational survivor of the residential school system. The appellant was raped at age 13. She attempted suicide more than once and struggled with depression and anxiety.

HELD: Appeal allowed. Sentence was reduced to time served. The impugned provisions contravened both ss. 7 and 15 of the Charter and were not saved by s. 1. The impugned provisions, in their impact on Aboriginal offenders including the appellant, created a distinction on the basis of race and denied the appellant a benefit in a manner that had the effect of reinforcing, perpetuating, and exacerbating her disadvantage as an Aboriginal person. Because the impugned provisions limited the availability of the conditional sentence, a significant remedial tool in the Gladue framework, their effect is to draw a distinction on the basis of race. By removing the ability to impose a conditional sentence instead of a prison sentence for an offence, the effect on an Aboriginal offender was to undermine the purpose and remedial effect of s. 718.2(e) in addressing the substantive inequality between Aboriginal and non-Aboriginal people manifested in overincarceration within the criminal justice system, which was acknowledged by Parliament and the courts as requiring redress. For a female Aboriginal offender whose background and circumstances, when considered under the Gladue framework, would have pointed toward a conditional sentence had it been available, the effect of the impugned provisions was to exacerbate her disadvantage as an Aboriginal person by removing the one remedy that would have allowed the sentencing judge to give effect to the mandate of s. 718.2(e). The provisions also violated her s. 7 liberty rights because they were arbitrary and overbroad relative to the legislative purpose. The purpose of the two impugned provisions was to maintain the integrity of the justice system by ensuring that offenders who committed serious offences received prison sentences. This was accomplished by removing the availability of a conditional sentence for offences where the maximum penalty was 14 years or life or 10 years in the case of offences involving the import, export, trafficking or production of drugs. The impugned provisions breached s. 7 of the Charter because they resulted in the deprivation of the appellant’s liberty in a manner that was not in accordance with the principle of fundamental justice of overbreadth. There was no rational connection between the impugned provisions’ purpose and some of their effects. The provisions identify seriousness by focusing on the maximum sentence for an offence and consequently captured a broad spectrum of offences and underlying criminal conduct that could range from the low to the high end of seriousness or gravity. Using a high maximum sentence as a proxy for the seriousness of the offence and the crime was not reasonable and resulted in overbreadth. Sentence: Time served.

R. v. Sharma, [2020] O.J. No. 3183, Ontario Court of Appeal, K.N. Feldman, E.E. Gillese and B. Miller JJ.A., July 24, 2020. Digest No. TLD-August312020008