Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter.

Hi, here’s what you need to know about the Supreme Court of Canada this week in 7 minutes.

Latest Cases

  1. On Friday, Nov. 4, 2022, the SCC is releasing its decision in R. v. Sharma. At issue is the constitutionality of provisions that restrict the availability of conditional sentences (aka house arrest) for serious crimes (e.g., importing drugs).
  2. 2022 SCC 37 was released onOct. 27, 2022. In a 7:2 split, the Court dismissed the appeal. A sentencing judge can impose a harsher sentence than what the Crown has proposed, but they should notify the parties and give them an opportunity to make further submissions.
  3. 2022 SCC 38 was released on Oct. 28, 2022. In a 5:4 split, the Court allowed the appeal and ruled that provisions requiring mandatory and lifetime registration on the national sex offender registry are unconstitutional.

Head over to Fantasy Courts to lock in your predictions for this week’s decisions or read more about the cases below.

Restricting Availability of Conditional Sentences

Appeal by leave from R. v. Sharma, 2020 ONCA 478

View the SCC webcast & read the factums

What Happened?

At trial: The respondent, an Indigenous woman, pled guilty to importing two kilograms of cocaine, contrary to s. 6(1) of the Controlled Drugs and Substances Act (“CDSA”). Sharma sought a conditional sentence of imprisonment, and challenged the constitutional validity of the two‑year mandatory minimum sentence under s. 6(3)(a.1) of the CDSA and of ss. 742.1(b) and 742.1(c) of the Criminal Code, which make conditional sentences unavailable in certain situations. The sentencing judge found that the two‑year mandatory minimum sentence under s. 6(3)(a.1) of the CDSA violated s. 12 of the Charter and could not be saved under s. 1. The judge therefore declined to address the constitutional challenge to s. 742.1(b), and he dismissed the s. 15 challenge to s. 742.1(c). Sharma was sentenced to 18 months’ imprisonment, less one month for pre‑sentence custody and other factors.

At the Court of Appeal: Sharma appealed and brought a constitutional challenge to s. 742.1(e)(ii) of the Criminal Code. A majority of the Court of Appeal allowed the appeal. Sections 742.1(c) and 742.1(e)(ii) were found to infringe both ss. 7 and 15(1) of the Charter, and the infringement could not be justified under s. 1. The majority held that the appropriate sentence would have been a conditional sentence of 24 months less one day, but as the custodial sentence had already been completed, a sentence of time served was substituted. Miller J.A., dissenting, would have dismissed the appeal and upheld the sentence of imprisonment.

What Was Argued at the SCC?

Appellant: The Crownargued that the Court of Appeal’s decision unduly fetters the legislative process and essentially only permits Parliament to make the law more lenient rather than more strict. The respondent here was sentenced to 17 months in prison and this was already well below the established range of six to eight years for this type of offence. Parliament created conditional sentences in an attempt to address overincarceration, but intended that they would only apply to less serious offences. Judges, however, started using them for more serious offences. This prompted Parliament to amend the conditional sentence provisions several times to bring the legislation in line with its intended purpose. This was a policy choice for Parliament to make.

Respondent: Sharma endured a tough life or what the sentencing called “a constellation of classic Gladue factors.” If their availability wasn’t limited by legislation, she was a good candidate for a conditional sentence. The conditional sentence gives sentencing judges the discretion to order that a jail sentence be served in the community and acts as a middle ground between probation and jail. Restrictions on conditional sentences are overbroad and do not achieve the objective intended by Parliament. The restrictions also infringe s. 15 of the Charter as they strike at the core of the Gladue framework and leave Indigenous offenders exposed to discrimination.

What Else Should You Know Before Making a Prediction?

There has been a diverse composition of dissents in the latest SCC decisions, making it particularly difficult to figure out who will end up where in this one. I wouldn’t be surprised if we had a repeat of last week’s 5:4 split. I’m leaning towards appeal dismissed, but that’s assuming Moldaver J. can’t pull together a majority.

Last SCC Decisions

R. v. Nahanee

On Oct. 27, 2022, the SCC released R. v. Nahanee, 2022 SCC 37. In a 7:2 split, the SCC dismissed Nahanee’s appeal and upheld his eight-year prison sentence, which was two years higher than the Crown’s proposed sentencing range.

Held: The public interest test adopted in R. v. AnthonyCook, 2016 SCC 43, which instructs judges not to depart from a joint sentencing submission unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest, only applies to joint submissions. It does not apply to contested sentencing hearings following a guilty plea. However, if a sentencing judge wants to impose a harsher sentence than what the Crown has proposed, they should notify the parties and give them an opportunity to make further submissions.

Key Points:

  • The public interest test set out in AnthonyCook protects a specific agreed‑upon sentence proposed by the Crown and the defence to a judge in exchange for an accused’s guilty plea. It is designed to protect the unique benefits that flow from joint submissions.
  • Contested sentencing hearings are characterized by a lack of agreement on a specific sentence, and therefore cannot offer the same degree of certainty as joint submissions.
  • The sentencing judge’s failure to provide notice and the opportunity for further submissions is not a breach of procedural fairness but an error in principle that will only justify appellate intervention where it appears from the judge’s decision that such an error had an impact on the sentence.
  • 92% correctly predicted the outcome of this appeal.

R. v. Ndhlovu

On Oct. 28, 2022, the SCC released its decision in R. v. Ndhlovu, 2022 SCC 38. In a 5:4 split, the Court allowed Ndhlovu’s appeal and ruled that provisions requiring mandatory and lifetime registration on the national sex offender registry are unconstitutional.

Held: Sections 490.012 and 490.013(2.1) of the Criminal Code infringe s. 7 of the Charter, and cannot be saved by s. 1. The provisions are therefore declared of no force or effect under s. 52(1) of the Constitution Act, 1982. The declaration in respect of s. 490.012 is suspended for one year and applies prospectively. However, the accused is exempted from the suspension of the declaration. As for s. 490.013(2.1), the declaration is immediate and applies retroactively.

Key Points:

  • Mandatory registration under s. 490.012 is overbroad as it leads to the registration of offenders who are not at an increased risk of committing a future sex offence. Registering such offenders bears no connection to the purpose of capturing information about offenders that may assist police in preventing and investigating sex offences.
  • Lifetime registration of those convicted of more than one sexual offence is also overbroad. The purpose of the measure is to give police a longer period of access to information on offenders at a greater risk of reoffending. Yet, expert evidence shows that committing more than one offence without an intervening conviction is not associated with an enhanced recidivism risk. As such, the measure captures some offenders who are not at a relatively greater risk of reoffending.
  • The 5:4 split made this one difficult to predict. Only 20% got it right.

-Tom Slade

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