Parliament Hill and the Supreme Court of Canada are shrouded in fog in Ottawa on Nov 4.Sean Kilpatrick/The Canadian Press
The federal government doesn’t have to try to reduce the disproportionate incarceration rates of Indigenous peoples when it passes crime laws, the Supreme Court of Canada has ruled.
The court split 5-4, with the majority saying Indigenous peoples do not have a constitutional right to special treatment in the criminal-justice system. The dissent argued that over-incarceration of First Nations stands in the way of reconciliation, which it called a constitutional necessity.
The case of Cheyenne Sharma, an Ojibway single mother facing eviction, and caught bringing two kilograms of cocaine into Canada for a $20,000 payment, touched on what may be the court’s deepest fault line: how to define what the equality protection in the Charter of Rights and Freedoms requires of government.
More than 30 per cent of federal prisoners are Indigenous, though First Nations make up just 5 per cent of the population. A 1996 law passed by a Liberal government requires that the circumstances of aboriginal offenders be taken into account in sentencing. And Ms. Sharma certainly had special circumstances. Her grandmother was a residential school survivor, her mother was in foster care and she herself was an abuse survivor.
The same Liberal government in 1996 also created conditional or community-based sentences as an alternative to jail. But in 2012, the Conservative government of Stephen Harper put strict limits on the use of conditional sentences.
The question for the Supreme Court of Canada was whether the limits on conditional sentences discriminated against Indigenous offenders, by reducing the discretion of judges to give them the special consideration required by law.
The Crown initially sought six years in prison for Ms. Sharma. Her lawyers sought a community-based sentence. But no such sentences appeared possible, partly because drug crimes like the one she committed did not allow for them under the 2012 changes from the Harper government.
The Supreme Court majority, in a judgment co-written by Justice Russell Brown and Justice Malcolm Rowe, warned against giving judges power that properly belongs to Parliament. Referring to the 1996 law that requires special consideration for Indigenous offenders, they wrote: “It is a legislative provision, not a constitutional imperative, and it is open to Parliament to amend it, even if to narrow the circumstances in which it applies.” They said they had seen no evidence that the provision in question widened the incarceration gap.
The dissenters, in an opinion authored by Justice Andromache Karakatsanis, said no such evidence was needed. It was enough that the Harper limits blocked judges from applying the framework of the 1996 law. “The overrepresentation of Indigenous people in Canada’s prisons is a present-day product of this country’s colonial past. … And it remains a poignant obstacle to realizing the constitutional imperative of reconciliation.”
Nader Hasan, a lawyer for Ms. Sharma, said the court had not lived up to the promise of the 1999 ruling known as Gladue, which applied the 1996 law on special considerations in sentencing. The majority “seems blissfully unaware of the crisis of mass incarceration of Indigenous people in this country and the role that conditional sentences and the Gladue framework can play in helping to remedy that crisis,” he said.
Adam Bond, a lawyer for the Native Women’s Association of Canada, said the ruling undermined the Gladue framework and would increase the representation of Indigenous women in jails.
The Sharma judgment echoed the bitter divisions on the court two years ago in a case called Fraser, in which the RCMP created a job-sharing plan for their employees but excluded the job-sharers from contributing to the pension plan. The court had ruled 6-3 that the job-sharing program discriminated against women by perpetuating a history of financial disadvantage.
In the current case, involving Ms. Sharma, two of the judges from the Fraser majority – Chief Justice Richard Wagner and Justice Michael Moldaver – switched from supporting the equality claim to opposing it.
The result: The court split almost entirely by party of appointment, a common trend over the past 2½ years. All appointees in the majority, except for Justice Rowe, were picked by a Conservative prime minister, Mr. Harper. All the dissenters except for Justice Karakatsanis were chosen by Liberal Prime Minister Justice Trudeau.
“The majority and minority each say they are firmly following the court’s previous decisions but only one can be correct in that assertion,” said Jonathan Rudin, a lawyer for an intervenor, Aboriginal Legal Services.
Justice Moldaver retired at the end of August, but has six months to complete the cases he heard. His replacement, the court’s first Indigenous member, Justice Michelle O’Bonsawin, may now hold the deciding vote on equality matters.
Ms. Sharma’s first hurdle had been a mandatory minimum sentence of two years. In 2018, Ontario Superior Court Justice Casey Hill struck that down as grossly disproportionate. But he said he had not been shown evidence that the limits on conditional or community-based sentences caused a greater impact on Indigenous than non-Indigenous offenders. He sentenced Ms. Sharma to 17 months in jail.
The Ontario Court of Appeal, in a 2-1 ruling in 2020, struck down the limits on conditional sentences and said Ms. Sharma deserved a community-based punishment. (By then, she had already served her 17 months.)
The governing Liberals have a bill before Parliament that would allow for greater use of conditional sentences. But the broader principle established by the Supreme Court may outlive the current government.