Supreme Court to rule if legislation that limits use of conditional sentences infringes on Indigenous rights

The Supreme Court of Canada will be weighing the arguments it heard March 23 to determine whether the inability to make conditional sentencing available in some cases amounts to systemic racism for Indigenous offenders, infringing on their Charter rights.

In 2012, the Criminal Code was amended through the Safe Streets and Communities Act to add mandatory minimum incarceration terms for certain offences. Mandatory minimums do not allow for conditional sentences.

The nine justices heard arguments from legal counsels for the federal government and provinces of British Columbia and Saskatchewan about why restrictions on conditional sentences do not infringe on the Charter rights of Indigenous peoples.

Interveners representing a number of organizations, including Indigenous and women’s groups, argued that the inability of trial judges to fully consider Gladue reports on all charges and thus the inability to use all forms of sentencing – including conditional sentencing – was a restriction that impacted on those Constitutional rights.

Gladue principles, implemented through Gladue reports, were introduced in the Criminal Code in 1996 in response to the over-representation of Indigenous people in the justice system. When imposing sentences, judges are required to take into consideration the personal impact colonialism has had on Indigenous offenders, which is outlined in the reports.

But Safe Streets made it difficult for judges to implement what they learn through Gladue reports for sentencing and therefore limited the court’s access to remedy the over-incarceration of Indigenous Canadians, said Eva Tache-Green, counsel with Nunavut Legal Aid, first time intervener at the Supreme Court.

“For us, the issues on this appeal are not abstract or theoretical.”

Eighty-five per cent of the Nunavut population is Inuit, she said, and a large percentage are involved in the legal system with the court imposing sentences.

“To do so fairly, Nunavut judges must apply Gladue,” she said. “Yet our court’s ability to do this is often undermined by limits to the conditional sentencing regime that are on issue of this appeal. Since the Safe Streets and Communities Act passed into law the percentage of sentences in Nunavut that are custodial have increased by five per cent, while the percentage of sentences that are conditional has decreased by nearly the same amount.”

Geographical limitations mean Inuit must serve jail time far away from home and do not have access to Elders, cultural counselling opportunities or community support, said Tache-Green.

“Against this background, the Legal Services Board of Nunavut asks this honourable court to affirm the importance of conditional sentences to the Gladue framework,” she said. “Additionally for those of us standing where the rubber meets the road on Gladue, it’s time for stronger direction from this court.”

While the battle at the Supreme Court level is for a decision that will have a broad impact, it began with the specific case of Cheyenne Sharma, an Ojibwe woman and a Saugeen First Nation member.

In 2016 Sharma pled guilty to smuggling two kilograms of cocaine into Canada. Because of the Safe Streets legislation and Sharma’s offence, she was not eligible for a conditional sentence although a comprehensive Gladue report indicated a young life impacted by incredible hardships, which included the colonial impact of residential schools.

Sharma was raised by her mother and grandmother, who was a residential school survivor. Sharma served 18 months in jail, separating her from her daughter.

By the time the Ontario Court of Appeal (ONCA) heard Sharma’s appeal and ruled that conditional sentence restrictions infringed upon Sharma’s Charter rights, Sharma had completed her incarceration. The majority of judges said that Sharma should have received an 18-month conditional sentence.

It is the ONCA’s ruling (one judge dissented) that is being argued at the Supreme Court.

Legal counsel for the three governments, interveners and the Supreme Court justices all agreed that there was an over-representation of Indigenous people in the justice system and in jails.

However, legal counsel for Canada, BC and Saskatchewan all argued that the Charter of Rights and Freedoms had not been infringed upon and as such this was not a Constitutional issue.

While they held conditional sentencing was integral to the Gladue framework, they also held that mandatory minimum jail time did not single out one class of people or create a race-based distinction that impacted only Indigenous people.

“If we accept…Indigenous offenders are hugely over-represented in prison, for women up to 50 per cent, given the extent of that over-representation, why would it not logically follow that a restriction for the availability of conditional sentence has a differential impact on Indigenous offenders, especially women?” asked Justice Andromache Karakatsanis.

Legal counsel for the Federation of Indigenous Sovereign Nations (Saskatchewan) and the Assembly of Manitoba Chiefs argued that Indigenous people had their own systems of justice well before colonial courts took over. They said Gladue reports and conditional sentences were an important part of a Canadian system of justice that continued to ignore and undermine First Nations laws.

“While the Assembly of Manitoba Chiefs does not wish to conflate restorative justice with First Nations legal responses to harm or to suggest that First Nations legal responses to crime must only result in a conditional sentence, the Assembly of Manitoba Chiefs submits that conditional sentences are a very important means of implementing First Nations laws and perspectives as they may assist in restoring peace and equilibrium,” said legal counsel Carly Fox.

“Without this particular tool of restorative justice to promote healing and reintegration in a culturally appropriate way, the justice system will continue to fail Indigenous people. There will be a continuing gross incarceration of Indigenous people in Canadian jails and correctional centres,” said legal counsel Eleanore Sunchild.

“FSIN submits that this honourable court has a very real opportunity here to protect and strengthen the ability of sentencing judges to achieve restorative justice because conditional sentence are one of the only alternatives to incarceration to combat high rates of Indigenous people ending up in facilities.”

The Supreme Court will deliver its decision at a later unspecified date.

Local Journalism Initiative Reporters are supported by a financial contribution made by the Government of Canada.