This week’s top three summaries: R v Sharma, 2020 ONCA 478, R v Lugela, 2020 ABCA 261, and R v Oakes, 2020 SKPC 23.
R v Sharma, 2020 ONCA 478
[July 24, 2020] Charter s.15 - Provisions Removing Availability of Conditional Sentences on the Basis of Maximum Sentence Available Found Unconstitutional due to Disproportionate Effect on Indigenous Peoples, s.7 - Same Provisions Found Overbroad [Majority Reasons by Feldman J.A. with Gillese J.A. concurring, Dissent by Miller J.A]
AUTHOR’S NOTE: With immediate effect in Ontario, significant provisions of the so-called "Safe Streets and Communities Act" restricting the availability of Conditional Sentence Orders were struck down. The route to the ruling is as impressive as the ruling itself. Section 15 of the Charter has been one of the least useful provisions of the Charter for criminal defence lawyers due to its usually onerous requirements of evidence showing differential outcomes based on a protected characteristic. Here, Section 15 was the driving force of the decision despite the lack of statistical evidence supporting differential outcomes of the unavailable of conditional sentences for Indigenous Peoples. In what is perhaps an incremental expansion of the role of judicial notice the majority noted that: "the sentencing judge was entitled to take judicial notice of the phenomenon of overincarceration of Aboriginal offenders and the fact that systemic discrimination is recognized as a direct cause of that phenomenon in Canada." This statement goes further than the recognition that the residential school system was a cultural genocide with lasting implications on generations of Indigenous Peoples. This statement recognised that the overincarceration of Indigenous Peoples is not a vestige of a colonial past, but has a current systemic cause. Now that judicial notice of this may be taken, counsel may seek to identify an ameliorate sections of the Criminal Code or other provisions that have similar effect. The only limitation appears to be that the amending act must must limit the availability of remedial measures aimed at the group (Indigenous Peoples). Here, it was established the conditional sentence regime enacted in 1996 was such legislation which was subsequently limited by the Safe Streets and Communities Act.
Overview
[3] On this sentence appeal, Ms. Sharma asks the court to strike down s. 742.1(c), and a similar provision in s. 742.1(e)(ii),[1] on the basis that they contravene two sections of the Charter: they contravene s. 15 of the Charter because their effect is to discriminate against Aboriginal offenders on the basis of race, and they contravene s. 7 of the Charter because they are arbitrary and overbroad in relation to their purpose. While the s. 7 challenge was initially raised before the sentencing judge, it was withdrawn at the submission stage after all the evidence was heard and he did not rule on it. This court allowed Ms. Sharma to raise the s. 7 challenge on the appeal.
[4] I agree with Ms. Sharma that the impugned provisions contravene both ss. 7 and 15 of the Charter and are not saved by s. 1. I would allow the appeal and strike down the provisions. I would set aside Ms. Sharma’s custodial sentence. As submitted by Ms. Sharma, the appropriate sentence would have been 24 months less a day, to be served conditionally. However, as Ms. Sharma has served her custodial sentence, I would substitute a sentence of time served.
[2] At her sentencing hearing, Ms. Sharma asked the court to strike down s. 742.1(c) of the Criminal Code, which removes the availability of a conditional sentence for offences, prosecuted by indictment, where the maximum penalty is 14 years or life in prison, under s. 15 of the Charter of Rights and Freedoms, because its effect is to discriminate against Aboriginal offenders on the basis of race. The sentencing judge rejected the application and imposed the custodial sentence.
Background of the Offender
[5] Ms. Sharma is a 25-year-old Canadian woman of Ojibwa ancestry and is a member of the Saugeen First Nation.
[6] On June 27, 2015, Ms. Sharma returned from a trip to Surinam, landing at Toronto Pearson International Airport with a suitcase containing 1971.5 grams of cocaine. She needed money because she was behind on rent and facing eviction. She agreed to fly to Surinam to retrieve the drugs in exchange for $20,000 from her boyfriend to avoid homelessness for herself and for her daughter. After she was apprehended, she confessed to the RCMP that she had been paid to transport the cocaine, which had an estimated street value of roughly $130,000. She was 20 years old when she imported the drugs, and she had no prior criminal record.
[7] After pleading guilty to importing two kilograms of cocaine contrary to s. 6(1) of the CDSA, Ms. Sharma described her personal circumstances to a case worker in the following terms, as part of a report of Ms. Sharma’s personal history filed pursuant to R. v. Gladue, [1999] 1 S.C.R. 688:
Well around the time it happened, I was two months behind in rent and I was about to be evicted and I had other bills to pay. The guy who I was dating at the time said he could help me out with the money but I would have to do something for him. He said I would have to take a vacation and do a few things for him down there. I said okay because I didn’t have any way to get the money to pay off my bills and it needed to be paid or else me and my daughter would have gone homeless and I couldn’t let that happen because I didn’t bring life into this would to be raised like that – without a home. I wanted to raise my daughter better than I was raised. I wanted to be independent and take care of her and when I got behind in rent I didn’t know what to do but I knew I had to do something about it. I was in a very bad place – a low point in my life.
I remember the day I had to leave I was freaking out. I didn’t want to do it but he said I had to do it and he reminded me about how I was gonna be evicted. I remember crying outside the airport smoking cigarettes before I had to go and check in.
[8] Ms. Sharma endured significant personal hardship growing up.
[10] When Ms. Sharma was 13 years old, she was raped by two men while she was walking home. She left school, ran away from home, and by age 15, she started working as a sex worker. At 16, she enrolled in high school but dropped out because she could not afford the $400 uniform. She is a single mother who gave birth to her daughter at age 17. Over the years, she has attempted suicide more than once and has struggled with depression and anxiety.
Legislation
[15] Third, a package of Criminal Code amendments from 2012, enacted as part of the Safe Streets and Communities Act, S.C. 2012, c. 1, shaped the sentencing landscape for Ms. Sharma by modifying s. 742.1 to make conditional sentences unavailable for offenders convicted of certain categories of offence. These amendments are at the crux of Ms. Sharma’s appeal.
Trial Proceedings
[21] The sentencing judge struck down the two-year mandatory minimum sentence in s. 6(3)(a.1) of the CDSA, as it would have constituted cruel and unusual punishment when applied to Ms. Sharma and a number of reasonable hypothetical offenders. The Crown has not appealed that declaration of invalidity.
[24] The sentencing judge rejected Ms. Sharma’s s. 15 challenge to s. 742.1(c). Although he acknowledged that s. 742.1(c) rendered offenders like Ms. Sharma ineligible for conditional sentences, he found that she had not met her onus of showing discriminatory impact because of a lack of statistical information before the court on the impact of the provision on Aboriginal offenders. Because conditional sentences remain available for a majority of offences, the sentencing judge held that he was unable to determine whether the law created a “distinction” based upon Aboriginal status and, if so, whether that distinction gave rise to unconstitutional discrimination.
Grounds of Appeal
[27] Ms. Sharma argues that ss. 742.1(c) and 742.1(e)(ii) of the Criminal Code are unconstitutional because:
- They infringe the s. 15 rights of Aboriginal offenders by discriminating on the basis of race.
- They infringe her s. 7 liberty rights because they are overbroad and arbitrary....
Legislative Context
[29] Conditional sentences came into force in 1996 in s. 742.1 of the Criminal Code as part of major sentencing reforms intended to encourage the application of principles of restorative justice in sentencing and to reduce overincarceration and the use of prison sentences, where appropriate.
[32] At the time the reforms were adopted, the Minister of Justice explained to the House of Commons Standing Committee on Justice and Legal Affairs that alternatives to incarceration were necessary given the reality that Aboriginal offenders were overrepresented in prisons, as quoted at para. 47 of Gladue....
[34] In its landmark 1999 decision in Gladue, the Supreme Court identified s. 718.2(e) as a “watershed”, not merely a restatement of existing principles of restraint in sentencing: at para. 39. The court stated, at para. 40, that the purpose of s. 718.2(e) was remedial, particularly given the concurrent introduction of the conditional sentence in s. 742.1:
The availability of the conditional sentence of imprisonment, in particular, alters the sentencing landscape in a manner which gives an entirely new meaning to the principle that imprisonment should be resorted to only where no other sentencing option is reasonable in the circumstances. The creation of the conditional sentence suggests, on its face, a desire to lessen the use of incarceration. The general principle expressed in s. 718.2(e) must be construed and applied in this light.
[37] Importantly, the court in Gladue rejected the suggestion that sentences that prioritize restorative justice principles are more lenient than sentences that impose a term of imprisonment. Rather, they reflect Aboriginal justice concepts and enable a sentencing judge to impose a sentence that will better serve the purposes of sentencing for an Aboriginal offender, as the court recognized at para. 74 of Gladue:
[O]ne of the unique circumstances of aboriginal offenders is that community-based sanctions coincide with the aboriginal concept of sentencing and the needs of aboriginal people and communities. It is often the case that neither aboriginal offenders nor their communities are well served by incarcerating offenders, particularly for less serious or non-violent offences. Where these sanctions are reasonable in the circumstances, they should be implemented. In all instances, it is appropriate to attempt to craft the sentencing process and the sanctions imposed in accordance with the aboriginal perspective.
[40] By 2012, courts in Canada had had 13 years to implement the Supreme Court’s directions in Gladue. However, in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, the majority of the Supreme Court reported that “overrepresentation and alienation of Aboriginal peoples in the criminal justice system ha[d] only worsened” since Gladue and the 1996 Criminal Codeamendments: at para. 62. The majority accepted that the failure to alleviate the situation could be the result of ongoing misunderstanding and misapplication of s. 718.2(e) and the Gladuedecision. Writing for the majority, LeBel J. sought to provide additional guidance. He recognized, at para. 65, that overincarceration of Aboriginal people could be caused or contributed to by two circumstances: either Aboriginal people commit a disproportionate number of crimes, or they are the victims of a discriminatory justice system.
[42] It is the second circumstance, however, that is the focus of s. 718.2(e). The role of sentencing judges, “as front-line workers in the criminal justice system”, is to ensure that systemic factors do not inadvertently produce discriminatory sentencing results: Ipeelee, at para. 67. Factors such as employment status, family support, and education influence whether a person goes to jail in a borderline case. The court accepted that because social, political, and economic forces cause many Aboriginal people to experience instability in these areas, they are sentenced to jail more often, reflecting systemic discrimination: Ipeelee, at para. 67.
[45] The court also strongly rejected the suggestion that treating Aboriginal offenders differently in sentencing violates the parity principle, codified in s. 718.2(b) of the Criminal Code. That suggestion ignores the impact of the history of Aboriginal peoples in Canada, given that “[t]he overwhelming message emanating from the various reports and commissions on Aboriginal peoples’ involvement in the criminal justice system is that current levels of criminality are intimately tied to the legacy of colonialism”: at para. 77.
[46] Finally, LeBel J. identified two major errors that sentencing courts had made following Gladue that had the effect of both “significantly curtail[ing] the scope and potential remedial impact” of s. 718.2(e) as well as “thwarting what was originally envisioned by Gladue”: Ipeelee, at para. 80.
[47] The first error was requiring offenders to prove a causal link between the systemic and background factors referred to in s. 718.2(e) and the commission of the offence. Requiring a causal link is an error because it is well recognized that Aboriginal people have suffered from systemic discrimination in Canada, the effects of which are interconnected and complex....
[49] The second error LeBel J. highlighted in sentencing decisions since Gladue related to the applicability of Gladue principles to serious or violent offences. Courts had picked up on one comment from Gladue, at paras. 33 and 79, that suggested that for such offences, Aboriginal offenders and other offenders would likely receive similar jail sentences. In Ipeelee, at paras. 86-87, LeBel J. clarified that the Gladue framework was obligatory in every case and that the sentencing court has a duty to apply s. 718.2(e), including for serious and violent offences:
Trying to carve out an exception from Gladue for serious offences would inevitably lead to inconsistency in the jurisprudence due to “the relative ease with which a sentencing judge could deem any number of offences to be ‘serious’”...
[54] Finally, in 2012, Parliament enacted the Safe Streets and Communities Act, which included the amendment to s. 742.1 to eliminate the availability of a conditional sentence for a broad array of offences, including the ones applicable to Ms. Sharma, in ss. 742.1(c) and 742.1(e)(ii)...
Section 15 Challenge
The Principles
[62] Section 15(1) of the Charter provides the following guarantee:
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.
[63] The test for determining whether a law contravenes this guarantee has evolved since the Supreme Court’s decision in Kapp. It was most recently restated by the Supreme Court in Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548, and that restatement was confirmed by the majority in Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17, [2018] 1 S.C.R. 464. In Taypotat, the court repeated that s. 15 protects substantive equality, and that its focus is “on laws that draw discriminatory distinctions — that is, distinctions that have the effect of perpetuating arbitrary disadvantage based on an individual’s membership in an enumerated or analogous group” (emphasis in original): at para. 18.
[64] There are two parts to the analysis. First, the court must determine whether, on its face or in its impact, a law creates a distinction on the basis of an enumerated or analogous ground: Taypotat, at para. 19; Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18, [2018] 1 S.C.R. 522, at para. 22. In Quebec v. Alliance, at para. 26, the court elaborated on the purpose and scope of the first step of the analysis: it is neither a preliminary merits screening, nor an onerous hurdle designed to weed out claims on technical bases. Instead, “its purpose is to ensure that s. 15(1) of the Charter is accessible to those whom it was designed to protect”, and “to exclude claims that have ‘nothing to do with substantive equality’”: Quebec v. Alliance, at para. 26, citing Taypotat, at para. 19.
[65] The second part of the analysis focuses on arbitrary or discriminatory disadvantage and asks whether the impugned law “fails to respond to the actual capacities and needs of the members of the group and instead imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating their disadvantage”: Taypotat, at para. 20; Centrale, at para. 22. The onus on the claimant is to “demonstrate that the law at issue has a disproportionate effect on the claimant based on his or her membership in an enumerated or analogous group”: Taypotat, at para. 21. However, at this second stage of the analysis, the specific evidence required “will vary depending on the context of the claim” and “‘evidence that goes to establishing a claimant’s historical position of disadvantage’ will be relevant”: Taypotat, at para. 21, citing Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396, at para. 38. In Quebec v. Alliance, the majority clarified that at the second step, “the focus is not on ‘whether a discriminatory attitude exists’, or on whether a distinction ‘perpetuates negative attitudes’ about a disadvantaged group, but rather on the discriminatory impact of the distinction” (emphasis in original): at para. 28.
Analysis
[66] The effect of the Safe Streets and Communities Act’s amendment resulting in ss. 742.1(c) and 742.1(e)(ii) is to preclude sentencing judges from imposing a conditional sentence on an offender convicted of an offence prosecuted by indictment where the maximum term of imprisonment is 14 years or life, or an offence prosecuted by indictment involving the import, export, trafficking or production of drugs, where the maximum term of imprisonment is 10 years. Ms. Sharma is affected by both preclusions.
[67]... I would answer the two parts of the Taypotat analysis by holding, first, that the impugned provisions, in their impact on Aboriginal offenders including Ms. Sharma, create a distinction on the basis of race; and, second, that the provisions deny Ms. Sharma a benefit in a manner that has the effect of reinforcing, perpetuating, and exacerbating her disadvantage as an Aboriginal person.
(a) Distinction on the Basis of an Enumerated or Analogous Ground
[70] Aboriginal offenders start from a place of substantive inequality in the criminal justice system. The overincarceration of Aboriginal people is one of the manifestations of that substantive inequality, which prompted Parliament to create the community-based conditional sentence and direct sentencing judges to consider that sanction, along with all others that do not involve imprisonment, when determining an appropriate punishment for Aboriginal offenders. The conditional sentence is one means of redressing the substantive inequality of Aboriginal people in sentencing. It is certainly the case that conditional sentences are available to all offenders, not just Aboriginal offenders. However, the legislative history and jurisprudence demonstrate that conditional sentences take on a unique significance in the context of Aboriginal offenders by conferring the added benefit of remedying systemic overincarceration. By removing that remedial sentencing option, the impact of the impugned provisions is to create a distinction between Aboriginal and non-Aboriginal offenders based on race.
[74] The Crown argues that similarly in this case, the removal of the conditional sentence option does not create any distinction between Aboriginal and other offenders – that distinction already exists because of the social circumstances of Aboriginal people.
[75] I reject this argument and the analogy to the Nur decision. I do so for three reasons.
[77] Parliament’s purpose in enacting s. 718.2(e), together with the conditional sentence, was to address the issue of overincarceration generally and in particular, the overincarceration of Aboriginal offenders in Canada....
[79] The distinction that is created by the impact of the impugned provisions relates to the overincarceration of Aboriginal offenders, not their overrepresentation in the criminal justice system. By removing the ability to impose a conditional sentence instead of a prison sentence for an offence, the effect on an Aboriginal offender is 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 has been acknowledged by Parliament and the courts as requiring redress. I therefore reject the contention that any finding of a breach of s. 15 in this case will thereby open all penal provisions to a similar s. 15 attack.
[82] The Supreme Court has made clear that the first part of the analysis was not intended to foreclose legitimate claims based on technicalities: Quebec v. Alliance, at para. 26. It was intended to ensure that the claim was based on an enumerated or analogous ground. In referring to the creation of a distinction, the first part of the analysis merely asks whether the legislation created a differential impact on the basis of a protected ground.
[83] Where a law establishes a new benefit, but does so in a discriminatory manner, that law will “create” a distinction. But where, as here, a law removes a remedial provision that was put in place to alleviate the discriminatory effect of other laws, then the removal of that remedial provision may not create a new distinction, but it will reinforce, perpetuate, or exacerbate the discriminatory effect that was intended to be alleviated by the remedial provision. As Abella J. explained in Quebec v. Alliance, at paras. 33-36, 42, provisions enacted to alleviate a discriminatory impact are not unchangeable, and can be modified, but any modifications must be constitutionally compliant in their effect, and must not cause a discriminatory impact.
[85] Similarly here, as I discuss further in my reasons below, the effect of the impugned provisions that restrict the availability of the remedial conditional sentence option is to perpetuate the already existing disadvantage suffered by Aboriginal offenders of being sentenced to jail more consistently than other offenders. I note that this important explanation by Abella J. also answers the criticism raised by Miller J.A. in his dissenting reasons, at paras. 188-89 and 242-43.
[86] The third reason I would reject the analogy to Nur is that Nur did not involve discrimination against an Aboriginal offender. As Ms. Sharma states in her factum, the Supreme Court and Parliament (through s. 718.2(e)) have recognized that Aboriginal offenders “face a unique legacy of dislocation caused by government policies of cultural genocide through colonial expansion and residential schools.”....
(b) Reinforcing, Perpetuating, or Exacerbating Disadvantage
[87] The second part of the Taypotat analysis asks whether the impugned law has the effect of reinforcing, perpetuating, or exacerbating the disadvantage of the claimant. In this case, the question is whether the law has that effect on Ms. Sharma because she is Indigenous.
[88] Leading up to her commission of the offence at age 20, Ms. Sharma, an Indigenous woman, had a tragic personal history, which I have already described earlier in these reasons. While the sentencing judge did not state directly that he would have given Ms. Sharma a conditional sentence had he not been precluded from doing so by the Safe Streets and Communities Act, he acknowledged that “offenders in Ms. Sharma’s position, for approximately a 16-year period, would have been eligible for, and did in appropriate cases, receive a conditional sentence disposition”: at para. 242. Based on Ms. Sharma’s personal background and current circumstances, including her guilty plea, lack of prior convictions, and need to care for her very young child, Ms. Sharma was a prime candidate for a conditional sentence.
[89] But the Safe Streets and Communities Act denied her the availability of this community-based sanction. In doing so, for the reasons that follow, ss. 742.1(c) and 742.1(e)(ii) have the effect of reinforcing, perpetuating, or exacerbating the disadvantage that Ms. Sharma faces as an Indigenous person.
[91] Dr. Carmela Murdocca, an associate professor of sociology at York University, provided expert evidence at the sentencing hearing regarding the relationship between colonialism, racism, and the criminalization of Indigenous women. The sentencing judge stated, at para. 20:
The expert witness’ evidence discussed the linkage of colonialism and racism to criminalization in particular of indigenous women. In the context of systemic cultural genocide of our country’s First Nations peoples, the colonialism process has had a direct impact on disproportionate involvement of these persons with the criminal justice system. The witness described the legacies of colonialism including systemic racism, educational challenges, lack of employment opportunities, loss of and disruption to cultural transmission processes, as well as social and economic and property disenfranchisement, and other resultant factors leading to disproportionate contact with the criminal justice system. The legacies of colonialism and overt racism have resulted in “intergenerational trauma for families and communities”.
[92] Dr. Murdocca described how one of the legacies of colonialism and racism in Indigenous women’s lives is victimization and how that leads to criminal acts.
[95] Other statistical evidence referred to by the interveners, Women’s Legal Education and Action Fund Inc. and the David Asper Centre for Constitutional Rights, in their factum on the appeal, puts the issue of overrepresentation of Indigenous women in jail quite starkly. According to data from the Office of the Correctional Investigator, the interveners highlight that between March 2009 and March 2018, the number of Indigenous women sentenced federally increased by 60 percent, such that by the end of that period, 40 percent of all federally incarcerated women were Indigenous: Canada, Office of the Correctional Investigator, Annual Report 2017-2018 (Ottawa: O.C.I., 2018), at p. 61. Directly relevant to the potential effect of conditional sentences, which are only available where the appropriate prison sentence is less than two years and would be served in a provincial institution, Indigenous persons represented 4 percent of the adult population of Canada in 2017-18 but accounted for 30 percent of admissions to provincial or territorial jails compared to 21 percent in 2007-08: Statistics Canada, Adult and youth correctional statistics in Canada, 2017/2018, by Jamil Malakieh, Catalogue No. 85-002-X (Ottawa: Statistics Canada, 2019), at p. 5. And over the same period, the increase in male Indigenous admissions to provincial or territorial institutions was 28 percent while the female increase was 66 percent: Adult and youth correctional statistics, at p. 5.
[96] These interveners also provided significant additional information about the effect of incarceration on Indigenous women, particularly single mothers and their communities, quoting from the reports of numerous commissions of inquiry, the most recent being the final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls. One example is the impact on the children. When bail is denied or a custodial sentence is imposed on Indigenous women, their children may be placed in foster care, where Indigenous children are already overrepresented, accounting for 48% of children in foster care in Canada: Canada, Reclaiming Power and Place: Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, vol. 1a (Ottawa: N.I.M.M.I.W.G., 2019), at p. 637. Documented effects of foster care on Indigenous children in non-Indigenous homes are loss of culture, language and identity, as well as the increased risk of involvement in the youth criminal justice system, a process known as the “child-welfare-to-prison pipeline”: Ontario Human Rights Commission, Interrupted childhoods: Over-representation of Indigenous and Black children in Ontario child welfare (Toronto: O.H.R.C., 2018), at pp. 27-28. The interveners conclude, fairly, that “[t]he overincarceration of Indigenous women thus perpetuates the effects of intergenerational trauma and the disruption of Indigenous families and communities.”
(ii) The Evidentiary Onus
[100] In my view, the sentencing judge’s reliance on Ms. Sharma’s failure to lead statistical evidence to prove discriminatory impact constitutes an error of law as well as a misapprehension of the available evidence on this critical issue.
[101] First, with respect to the error of law, the Supreme Court instructed in Taypotat that while the onus remains on the claimant to establish disproportionate and discriminatory effect, “the specific evidence required will vary depending on the context of the claim, but ‘evidence that goes to establishing a claimant’s historical position of disadvantage’ will be relevant”: Taypotat, at para. 21, citing Withler, at para. 38. This principle follows the direction in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, that if direct evidence is not available, courts may rely on logical inferences and judicial notice: at para. 77. In this case, it was not necessary to lead statistical evidence to establish that removing the conditional sentence option would disproportionately impact Aboriginal offenders. It was therefore an error of law to require that evidence.
[102] In respect of the available evidence, first there was the direct evidence of Dr. Murdocca on the link between systemic discrimination and overrepresentation of Aboriginal people in the criminal justice system in general, and female Aboriginal offenders in particular, because of their specific challenges. Dr. Murdocca also provided direct evidence of the same link to the participation by Aboriginal women in the crime of importing drugs. Second, the sentencing judge was entitled to take judicial notice of the phenomenon of overincarceration of Aboriginal offenders and the fact that systemic discrimination is recognized as a direct cause of that phenomenon in Canada. These matters are beyond any serious controversy, as reflected in the jurisprudence of the Supreme Court. [Emphasis by Author]
(iii) Applying Part Two of the Taypotat Analysis
[107] Before this court, the Crown argued that even without the availability of conditional sentences, sentencing judges can give effect to the Gladue framework by fixing a prison sentence of an appropriate length. In my view, this submission reflects a misunderstanding of the remedial purpose of s. 15. It is not disputed that the imposition of a prison sentence can reflect the proper balancing of the sentencing objectives of denunciation, deterrence, and rehabilitation. The Gladue framework does not undermine that fundamental premise. Rather, it asks sentencing judges to consider imposing a community-based sanction that also balances the sentencing objectives but carries with it the added benefit of redressing the problem of overrepresentation of Aboriginal offenders in Canada’s prisons. It is the denial of this benefit that is at issue in this appeal, not the respective fitness of custodial and conditional sentences.
[117] More importantly, the types of factors required for a suspended sentence effectively exclude many, if not most, marginalized offenders, including Aboriginal offenders and especially Aboriginal women.
[118] First, courts have viewed circumstances arising from systemic discrimination as commonplace and therefore not exceptional, thereby treating the most sympathetic circumstances as ineffective in the calculus of qualification for a suspended sentence: see, e.g., R. v. McIvor, 2019 MBCA 34, at para. 64; Clunis, at paras. 23, 26.
[119] Second, because Indigenous people are disproportionately denied bail and are less likely to be rehabilitated in custody, as the court in Gladue acknowledged at paras. 65 and 68, they are less likely to meet the exceptional circumstances criteria. For example, in the 59 cases that were identified by the intervener where a suspended sentence was requested, the offender received such a sentence in 27 cases, and in each one, the offender was on bail and consequently able to overcome addiction, attend rehabilitative programs, obtain employment, or engage in other productive activities.
[120] Third, the requirements for employment and lack of a criminal record again effectively exclude marginalized people whose circumstances of unemployment and criminal activity are affected by racism and systemic discrimination. Simply put, the determination of the appropriateness of a suspended sentence differs in important respects from the conditional sentencing calculus and often works to the disadvantage of Aboriginal offenders.
[123] In my view, the position of the Crown, the analysis of the sentencing judge, and the result in this case provide the clearest indication of why a suspended sentence cannot be viewed as an available alternative to a conditional sentence.
[124] The sentencing judge specifically declined to impose a suspended sentence for Ms. Sharma, given the gravity of the offence of importing cocaine.
[125] As part of the justification for the 18-month sentence, the sentencing judge referred to Ms. Sharma’s intergenerational survival of the residential school regime, together with the following eight specific factors that would militate in favour of a sentence more focused on rehabilitation, at para. 266:
(1) Ms. Sharma is a first offender
(2) she was aged 20 when the offence was committed
(3) a guilty plea was entered
(4) as the single mother of a 2-year-old child, the offender’s motivation to commit the offence arose in desperate financial circumstances where she was unemployed and facing imminent eviction from her home
(5) the offender confessed to the RCMP on the date of her arrest
(6) the offender has been on judicial interim release for over 2 ½ years and has relocated to Christian Island
(7) incarceration of the offender will separate her from her daughter – while family can care for the child, the offender’s incarceration perpetuates a generational pattern of separation from family
(8) the offender is a low risk to reoffend and has made rehabilitative efforts since arrest.
[127] ....Contrary to the Crown’s submission, this case demonstrates that 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 is 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).
[132] The intent of the Act is to incarcerate offenders convicted of certain offences. The reality is that the Act will result in more Indigenous offenders serving their sentences in jail rather than in their communities. Thus, I conclude that ss. 742.1(c) and 742.1(e)(ii) deny the benefit of a conditional sentence in a manner that has the effect of reinforcing, perpetuating or exacerbating the disadvantage of Aboriginal offenders, and is therefore contrary to s. 15 of the Charter.
Section 7
[133] Ms. Sharma also asks this court to find the impugned provisions to be contrary to s. 7 of the Charter and not saved by s. 1. Ms. Sharma argues that ss. 742.1(c) and 742.1(e)(ii) violate her s. 7 liberty rights because they are arbitrary and overbroad relative to the legislative purpose. I agree.
[140] These two principles were explained by the Supreme Court in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paras. 111 and 112, as follows:
Arbitrariness asks whether there is a direct connection between the purpose of the law and the impugned effect on the individual, in the sense that the effect on the individual bears some relation to the law’s purpose. There must be a rational connection between the object of the measure that causes the s. 7 deprivation, and the limits it imposes on life, liberty, or security of the person ([Hamish Stewart, Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms, 1st ed.(Toronto: Irwin Law, 2012)], at p. 136). A law that imposes limits on these interests in a way that bears no connection to its objective arbitrarily impinges on those interests. Thus, in [Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791], the law was arbitrary because the prohibition of private health insurance was held to be unrelated to the objective of protecting the public health system.
Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose. In this sense, the law is arbitrary in part. At its core, overbreadth addresses the situation where there is no rational connection between the purposes of the law and some, but not all, of its impacts. For instance, the law at issue in [R. v. Demers, 2004 SCC 46, [2004] 2 S.C.R. 489] required unfit accused to attend repeated review board hearings. The law was only disconnected from its purpose insofar as it applied to permanently unfit accused; for temporarily unfit accused, the effects were related to the purpose. [Emphasis in original.]
[143] A number of courts have already opined on the purpose of the Safe Streets and Communities Act. In Neary, at para. 35, the Court of Appeal for Saskatchewan identified four broad purposes of the Act:
a) providing consistency and clarity to the sentencing regime;
b) promoting of public safety and security;
c) establishing paramountcy of the secondary principles of denunciation and deterrence in sentencing for the identified offences;
d) treating of non-violent serious offences as serious offences for sentencing purposes.
[161] Sections 742.1(c) and 742.1(e)(ii) are even less precisely tailored to their purpose than the legislation at issue in Safarzadeh-Markhali. As discussed, in a practical sense, the only offenders who face an altered sentencing regime by virtue of the Safe Streets and Communities Act amendments are those whose circumstances would ordinarily militate in favour of a sentence at the lower end of the spectrum. While there will be cases where eliminating the availability of a sentence served in the community and mandating a sentence of imprisonment could meet Parliament’s purpose of incarcerating those who commit serious crimes, there will be many other cases where, as in Safarzadeh-Markhali, the impugned provisions will impact people they were not intended to capture.
[164] Parliament’s chosen proxy for assessing the seriousness of an offence is its maximum sentence. There are, however, a number of problems with that analogy.
[165] The Crown’s submission that this court’s reasoning in Hamilton provides a foundation for the use of maximum penalties as a proxy for an offence’s seriousness is inconsistent with this court’s reasoning in that case and misconceives the sentencing process. In Hamilton, the issue was the determination of a fit sentence for the offence of importing cocaine. In setting out the analytical framework, Doherty J.A. considered the proportionality requirement under s. 718.1 of the Criminal Code, which provides that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” He stated, at para. 90, that the gravity of the offence is a product of both the potential penalty imposed and the specific features of the commission of the crime:
The “gravity of the offence” refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence. For example, in drug importation cases, the nature and quantity of the drug involved will impact on the gravity of the offence. Some of the factors which increase the gravity of the offence are set out in s. 718.2(a). [Emphasis added.]
[166] He continued, at para. 91, by explaining that “the degree of responsibility of the offender” addresses the offender’s role in carrying out the crime, as well as “any specific aspects of the offender's conduct or background that tend to increase or decrease the offender’s personal responsibility for the crime.”
[174] I conclude that the impugned provisions are contrary to s. 7 of the Charter because they resulted in the deprivation of Ms. Sharma’s liberty in a manner that was not in accordance with the principle of fundamental justice of overbreadth. There is no rational connection between the impugned provisions’ purpose and some of their effects.
Section 1
[178] Even if the Crown could establish that the provisions have a pressing and substantial objective, in my view, the s. 1 justification fails at the minimal impairment stage of the analysis. The Crown argues that the provisions are minimally impairing of Ms. Sharma’s rights because they “only remove one sentencing option of many”. As discussed above, they remove the only sentencing alternative to imprisonment that could have been available for this crime and for this offender. As in the game of musical chairs, when the chairs are removed, there is no place left to sit down.
[179] There is also no basis to find that the deleterious effects of the impugned provisions on Aboriginal people are outweighed by the salutary effect of the provisions. The deleterious effects are serious. These provisions as enacted take no account of the special circumstances of Aboriginal offenders and the need to address their disadvantage based on race that has resulted in the overincarceration of Aboriginal people. The breach of s. 15 is not saved by s. 1.
I. REMEDY
[180] I would strike down ss. 742.1(c) and 742.1(e)(ii) of the Criminal Code....
R v Lugela, 2020 ABCA 261
[July 10, 2020] Bail Pending Appeal - General Principles and Release When Appellant not Previously On Bail [Madam Justice Jo'Anne Strekaf]
AUTHOR’S NOTE: This decision provides a good overview of the principles in bail pending appeal. Also, the factual circumstance provides an example where bail is granted for someone that did not have judicial interim releasee prior to trial and was convicted of a serious criminal offence.
Law of Bail Pending Appeal
[2] Prior to trial, the onus is on the Crown (except in some statutorily defined circumstances) to establish that an accused person should be detained: R v Oland, 2017 SCC 17 at para 35 [Oland]. Following conviction, the onus shifts to the person seeking to appeal his conviction to demonstrate that he should not be detained pending appeal: Oland at para 35. Section 679(3) provides that a judge of the Court of Appeal may order that an applicant be released pending the determination of his conviction appeal if the applicant establishes: (i) that the appeal is not frivolous; (ii) that he will surrender himself into custody in accordance with the terms of the order; and (iii) that his detention is not necessary in the public interest.
a. Not frivolous
[3] The requirement that an appeal is not frivolous is not a high bar. It simply requires the applicant to establish that the grounds of appeal will not necessarily fail and that there is some basis in the record for an applicant’s legal argument(s): R v Passey (1997), 1997 ABCA 343 (CanLII), 209 AR 191 at paras 7-8, 56 Alta LR (3d) 317 (CA).
[4] The applicant submits (1) the reasons for judgment were insufficient because the trial judge did not overtly address the defense theory of the victims being willing participants in a scheme to obtain ransom money in his reasons or explain why it was rejected; (2) the trial judge relied on inadmissible hearsay evidence to make important findings of fact – such as when the status of the victims changed and their freedom was terminated; and (3) the verdict was unreasonable because complicit extortion was a reasonable alternative.
[5] The applicant has met the low bar of establishing that the appeal is not frivolous.
b. Will surrender
[6] When considering the second factor, a court can consider the applicant’s past history in appearing or failing to appear, including their history as it relates to other offences: R v Benn (1993), 141 AR 293 at para 6 (CA).
[7] The applicant submits that he is not a flight risk. He is 25 years of age and a permanent resident of Canada. He does not have a foreign passport, has no ties outside of Canada, has not left Canada since age 10, and does not have the financial means to leave the country.
[8] The applicant has a limited criminal record, consisting of one conviction for failing to attend court contrary to section 145(2) of the Criminal Code, in 2014, and four convictions between October 2013 and November 2016 for failing to comply with a recognizance, contrary to section 145(3) of the Criminal Code.
[9] As the applicant has been detained in custody since his arrest on January 29, 2017 on the charges that gave rise to this appeal, there is no history of him complying with his release terms. That said, I am satisfied that he will surrender himself into custody when required to do so.
c. Public Interest
[10] The third factor, the public interest criterion, has two components: public safety and public confidence in the administration of justice.
[11] The public safety component is “related to the protection and safety of the public and essentially [tracks] the familiar requirements of the so-called ‘secondary ground’ governing an accused’s release pending trial”: Oland at para 24. The issue is whether there is a substantial likelihood that the applicant will commit a criminal offence or interfere with the administration of justice if he is released: R v Fuhr, 2017 ABCA 266 at para 36. The applicant has the limited record outlined above. He has no conviction for any offences involving violence or firearms, other than the ones that are the subject of this appeal. I am satisfied that he has met the requirement of demonstrating that he is not a public safety risk.
[12] The key question on this application is whether the applicant can satisfy the public confidence component of the public interest test. It involves weighing two competing interests, enforceability and reviewability. The enforceability interest favours denying bail to reflect the need to respect the general rule of the immediate enforceability of judgments. Public safety or lingering flight concerns that fall short of the substantial risk which would preclude a release order may also be relevant. The absence of such risks attenuates the enforceability interest: Oland at para 39.
[13] The reviewability interest favours granting bail to reflect society’s acknowledgement that the justice system is not infallible and that persons who challenge the legality of their conviction should be entitled to a meaningful review process. It also ensures “fairness in the appeal process, to avoid the prospect of the applicant serving a sentence [if] the appeal is ultimately allowed”: R v Sidhu, 2015 ABCA 308 at para 6, citing R v McNaughton, 2010 ABCA 97 at para 12.
[14] The enforceability interest in this case is high. The gravity of the crime plays an important role in assessing the enforceability interest. The applicant was convicted of kidnapping two individuals using a firearm, possession of a weapon for a dangerous purpose, and pointing the firearm at one of the individuals, which are serious offences. He was sentenced to a lengthy prison term of 10 years.
[15] The strength of the grounds of appeal play a central role in assessing the reviewability interest (Oland at para 44) as it requires:... a more pointed assessment of the strength of an appeal, [where] appellate judges will examine the grounds identified in the notice of appeal with an eye to their general legal plausibility and their foundation in the record. For purposes of this assessment, they will look to see if the grounds of appeal clearly surpass the minimal standard required to meet the “not frivolous” criterion … [C]ategories and grading schemes should be avoided.
[16] When conducting the final balancing of factors that inform public confidence, “appellate judges should keep in mind that public confidence is to be measured through the eyes of a reasonable member of the public. This person is someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values”: Oland at para 47, citing R v St-Cloud, 2015 SCC 27 at paras 74-80.
[19] The public confidence assessment of the public interest test involves a delicate balancing exercise. I have taken the following factors into account when considering this aspect of the application:
1. The applicant was convicted of serious crimes and sentenced to 10 years of incarceration, which is a significant sentence that reflects judicial recognition of the seriousness of the offences and the applicant’s degree of moral culpability.
2. The applicant has a limited criminal record with no previous convictions for weapons or violent offences.
3. I have conducted the “more pointed assessment of the strength of an appeal” contemplated in Oland. However, as this matter will ultimately be considered by a full panel, it is neither necessary nor helpful for me to set out my analysis in greater detail beyond stating that I am satisfied that the grounds of appeal clearly surpass the “not frivolous” standard.
4. The applicant was denied bail pending trial while presumed innocent and now seeks bail after conviction. However, there was no information provided of the reasons for that denial, or what release plan was under consideration at the time.
5. The applicant’s release plan contemplates that he would live with his older sister who is on maternity leave and would be able to monitor him closely. She is prepared to pledge $4000, which is a substantial sum in her financial circumstances. He is prepared to accept strict release conditions.
6. The appeal record has been filed, but the appeal will not be heard until 2021.
7. The applicant has been in custody since his arrest on January 29, 2017. His appeal will not be heard until sometime in 2021, by which time he will have spent more than four years in custody, and he will have served (with credit) more than half his sentence. When factoring in his statutory release date after serving two thirds of his sentence, he will likely have served most of his custodial sentence by the time his appeal is decided. He is also seeking to appeal his sentence, and that appeal will not be heard, even if his conviction appeal is dismissed, until after the conviction appeal is decided.
[20] After taking into account all of the above considerations, I am satisfied that the public interest in reviewability outweighs enforceability in this case as a well-informed member of the public would recognize the need for non-illusory appellate procedures: R v Sidhu at para 5.
[21] As a result, I am prepared to release the applicant pending his appeal on the conditions that counsel have agreed to, which are set out in the attached schedule.
R v Oakes, 2020 SKPC 23
[June 22, 2020] – Section 7 Application for Disclosure & Definition of Records in 278.1 - Sexual Assault Kit is Not a Record for the Purpose of the Mills Regime [D. Kovatch J.]
AUTHOR’S NOTE: The fine details of the Ghomeshi amendments to the criminal code continue to be ironed out in the lower courts. Here the Crown took the position that it did not have to disclosure the results of a sexual assault kit examination claiming it was a private medical record and not disclosure. The Court found in favour of the Accused and ordered disclosure.
Overview
[8] The Crown argued that the sexual assault kit and forensic analyses of any samples seized were pieces of personal information created with a reasonable expectation of privacy. Further, that sections 278.1 to 279.95 are applicable. The Crown submits that in the absence of an application pursuant to these sections, the Court does not have the jurisdiction to direct disclosure of the records.
[10] For the following reasons, I am of the view that the prior policy of the Crown, to routinely disclose the results of the sexual assault kit, pursuant to Stinchcombe and the common law, was the proper and legal practice. The change in practice, as seen in this case, was not proper in that the results of the sexual assault kit and any forensic analyses are not medical records within the meaning of section 278.1 of the Code. The Crown remains obligated to disclose the results of the sexual assault kit pursuant to Stinchcombe and the common law that has developed since then. In this case, there may have to be some editing, redaction or other revision of the disclosure package to eliminate any disclosure of “medical records”. But the disclosure of the sexual assault kit must be made. There will be an order accordingly.
Analysis
[13] I go through all of this to make the point that the sexual assault kit and the analyses from that kit does not neatly fit within the description of the documents described above. On the night of September 7 and in the early morning hours of September 8, a sexual assault kit was completed at Regina General Hospital. These samples were not obtained for medical diagnoses or treatment of the Complainant. The sexual assault kit and all samples obtained were immediately turned over to police. In my view, the medical professionals were not creating medical records on the Complainant by completion of the sexual assault kit. Rather, they were acting as agents of the police and gathering evidence for the police to assist in their investigation and this prosecution. They took the samples, as opposed to the police, because they have the training and position to insure the samples are taken properly and professionally. The simple fact that medical people took the samples, does not make these samples or the records medical records. They remain an essential part of the police investigation.
[16] ... With all due respect, the Crown effectively ignores the definition of record contained in section 278.1 of the Code, and ignores the fundamental threshold question of whether the sexual assault kit is a medical record. Section 278.1 reads as follows:
278.1 For the purposes of sections 278.2 to 278.92, “record” means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence. [emphasis added]
[18] The underlined portion of section 278.1 clearly indicates that “records made by persons responsible for the investigation or prosecution of the offence” are not a record so that section 278.2 would have no application to them. The general occurrence report quoted at length above, clearly states that the nurse practitioner performed the sexual assault kit and that the entirety of the sexual assault kit was immediately turned over to Cst. Stregger of the Fort Qu’Appelle RCMP. It is my understanding (from another case) that the Police prepare and provide the sexual assault kits to the hospitals. Medical personnel complete the kits and turn them over to the Police. I do not know how it could be contended that this sexual assault kit was not prepared for a person responsible for the investigation or prosecution of this offence.
[19] I believe I am supported in this interpretation of the legislation by the case law. I refer firstly to R v McNeil, 2009 SCC 3 (CanLII), [2009] 1 SCR 66. The Court referred to the “fruits of the investigation”. It clearly concluded that the “fruits of the investigation” were to be disclosed pursuant to Stinchcombe.
[20] R v Quesnelle, 2014 SCC 46, [2014] 2 SCR 390, also involved a sexual assault prosecution. ...
[46] Even records that give rise to a reasonable expectation of privacy are not covered by the Mills regime if they fall into the exemption contained in s. 278.1:
278.1 … “record’ … does not include records made by persons responsible for the investigation or prosecution of the offence…
…
[55] The definition of “record” in s. 278.1 serves a gatekeeping function within the regime. The reasonable expectation of privacy test sweeps in records that merit the protection afforded by the Mills regime. The exemption further contributes to the gatekeeping role of the section by bypassing the balancing process for records that Parliament recognized should always be produced.
[56] Records created in the investigation of the offence are presumptively relevant to an issue at trial and it is in the interests of justice for the case against the accused to be disclosed to the defence. There is no need to consider such records under the second step of Mills because they will always be produced anyway -- the exemption is eminently logical…
[29] There will be an Order that the Crown shall forthwith make available to defence counsel, the records regarding the sexual assault kit and the forensic analyses of any samples taken. This does not include personal or medical records not obtained for this investigation. Such information shall be redacted or otherwise removed from the disclosure package.
