Provisions of the Safe Streets and Communities Act struck down by Court of Appeal A look at R. v. Sharma

BY NANA ADJEI-POKU

On March 13^th, 2012, Prime Minister Stephen Harper passed the Safe Streets and Communities Act (SSCA). The Act was intended to be tough on crime by amending the Criminal Code of Canada to remove the availability of a conditional sentence where the crime committed had a maximum penalty of life in prison.

On July 24^th, 2000, Court of Appeal struck down sections 742.1(c) “the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life” and 742.1 (e) (ii) “the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that involved the import, export, trafficking or production of drugs.” These two sections removed the availability of conditional sentences as an alternative to custodial sentences for certain offences and were challenged under section 7 and 15 of the Canadian Charter of Rights and Freedoms.

Section 7 of the Charter states, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”  Section 15(1) of the Charter states, “15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on: race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

In R. v. Sharma, the Court of Appeal struck down these two sections.  At the original trial in 2015, Cheyenne Sharma (“C.S.”),  a 25-yr-old indigenous woman, plead guilty to importing 2 kgs of cocaine with an estimated street value of $130,000.  Ms. Sharma had no prior criminal record.  At the trial, the Judge noted that C.S. would have been a candidate for a conditional sentence, due to the fact that she was a young single mother with no previous criminal record but was not able to hand down such a sentence due to the 2012 legislation.

Counsel for C.S. stated that the two sections denied her the opportunity to seek a conditional sentence and were contrary to her Charter rights. She was not being able to seek a conditional sentence due to the fact that the offence she plead guilty to had a maximum incarceration sentence of ten years as they involved the trafficking of drugs.  C.S.’ counsel also stated that a conditional sentence is a “necessary element of the remedial framework that was enacted to achieve equality through sentencing” and that the SSCA violated s. 15 of the Charter in this regard.

Well, on July 24^th, 2020, the Court of Appeal agreed with C.S. and held that the provisions under the Act discriminated against indigenous people who are convicted of crimes and struck them down effective immediately. The Court stated that, “restricting conditional sentences violated Section 15 by perpetuating the disproportionate incarceration of indigenous people in Canada which was contrary to the Supreme Court of Canada decision in R. v. Gladue wherein the courts were directed to prioritize alternatives to jail sentences when it comes to indigenous offenders.” Conditional sentences are key for sentencing judges to apply the Gladue factors when dealing with indigenous accused.

The Court also found that section 7 of the Charter was violated, because the two sections of the criminal code were overbroad in addressing Parliament’s stated purpose of ensuring jail time for serious crimes and the Charter clearly states that one must not be deprived except in accordance with the principles of fundamental justice. These two sections went over and beyond that. This argument pertaining to s.7 will also apply to non-indigenous individuals who are convicted of an offence in the SSCA. This is seen as a victory as the two provisions were struck down immediately, and now provides the availability to individuals who would not have had access to a conditional sentence where they would have qualified to seek one.