“In 2015, S, a woman of Ojibwa ancestry and a member of the Saugeen First Nation, arrived in Toronto on an international flight. Her suitcase was found to contain 1.97 kilograms of cocaine. She confessed that her partner had promised to pay her $20,000 to bring the suitcase to Canada, and pleaded guilty to importing a Sch. I substance contrary to s. 6(1) of the Controlled Drugs and Substances Act. At the time, S was 20 years old, with no prior criminal record, and was two months behind on rent and facing eviction. S had become a single mother at 17, had few supports, and the prospect of homelessness for her child motivated her to agree to import the drugs. A pre‑sentence (Gladue) report also noted that S’s grandmother was a residential school survivor, S’s mother had spent time in foster care, S had been sexually assaulted, and she had dropped out of school due to financial difficulties.
S sought a conditional sentence. Conditional sentences are a type of incarceration, provided for under s. 742.1 of the Criminal Code, that permit offenders who meet statutory criteria to serve their sentences under strict surveillance in their communities, rather than in jail. In 2012, Parliament amended the conditional sentencing regime to make such sentences unavailable for certain serious offences. Three prerequisites must be met before a conditional sentence can be imposed: the offender must not have been convicted of one of the offences listed at paragraphs 742.1(b) through (f) of the Criminal Code; a court would have otherwise imposed a sentence of imprisonment of fewer than two years; and the safety of the community would not be endangered by the offender serving the sentence in the community. Where these prerequisites are met, a court must consider whether a conditional sentence is appropriate, having regard to the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. In particular, s. 718.2(e) provides that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders”.
The 2012 amendments to the Criminal Code prevented S from receiving a conditional sentence. In particular, s. 742.1(c) made conditional sentences unavailable for any offence with a maximum term of imprisonment of 14 years or life, such as the offence to which S pleaded guilty. S brought Charter challenges against s. 742.1(c) and against s. 742.1(e)(ii), which made conditional sentences unavailable for offences, prosecuted by indictment, having a maximum term of imprisonment of 10 years and involving the import, export, trafficking, or production of drugs. The sentencing judge held that a conditional sentence was unavailable to S, dismissed her Charter challenges under ss. 7 and 15, and imposed a sentence of 18 months’ imprisonment. A majority of the Court of Appeal held that ss. 742.1(c) and 742.1(e)(ii) were overbroad under s. 7 and discriminated against Indigenous offenders like S under s. 15(1). It struck down the provisions and sentenced S to time served.”
The SCC (5:4) allowed the appeal and restored the sentence imposed at first instance.
Justices Brown and Rowe wrote as follows (at paras. 3-4, 76-77, 79-81, 108):
“…The impugned provisions do not limit Ms. Sharma’s s. 15(1) rights. While the crisis of Indigenous incarceration is undeniable, Ms. Sharma did not demonstrate that the impugned provisions created or contributed to a disproportionate impact on Indigenous offenders, relative to non‑Indigenous offenders, as she must show at the first step of the s. 15(1) analysis.
Nor do the impugned provisions limit Ms. Sharma’s s. 7 rights. Their purpose is to enhance consistency in the conditional sentencing regime by making imprisonment the typical punishment for certain serious offences and categories of offences. And that is what they do. Maximum sentences are a reasonable proxy for the seriousness of an offence and, accordingly, the provisions do not deprive individuals of their liberty in circumstances that bear no connection to their objective.
In short, the Court of Appeal erred by removing Ms. Sharma’s evidentiary burden at step one. This is inconsistent with the sentencing judge’s finding that Ms. Sharma failed to establish a distinction on the basis of a protected ground (para. 257). The Court of Appeal improperly substituted its own view of the matter. In this case, while Ms. Sharma was not required to adduce a specific type of evidence, she had to demonstrate that the impugned provisions created or contributed to a disproportionate impact. Ms. Sharma, for example, could have presented expert evidence or statistical data showing Indigenous imprisonment disproportionately increased for the specific offences targeted by the impugned provisions, relative to non‑Indigenous offenders, after the SSCA came into force. Such evidence might establish that the removal of conditional sentences created or contributed to a disproportionate impact on Indigenous offenders.
By overturning the sentence, the Court of Appeal not only departed from its proper role but misapplied the jurisprudence of this Court. In light of the sentencing judge’s findings, Ms. Sharma’s argument before this Court ⸺ that the impugned provisions “necessarily impac[t] Indigenous offenders differently” ⸺ cannot be accepted.
It is undisputed that the sentencing judge must take account of the particular circumstances of Indigenous offenders, as that is what Parliament has directed in s. 718.2(e). How this is to be done may take various forms and the Criminal Code provides judges broad discretion to craft a proportionate sentence, given the offender’s degree of responsibility, the gravity of the offence and the specific circumstance of each case (R. v. Lacasse, 2015 SCC 64,  3 S.C.R. 1089, at para. 58). For instance, sentencing judges may consider other non‑carceral options such as suspended sentences and probation. They may also reduce sentences below the typical range.
It is true that suspended sentences are “primarily a rehabilitative sentencing tool”, whereas conditional sentences “address both punitive and rehabilitative objectives” (Proulx, at para. 23). Suspended sentences are not irrelevant to applying s. 718.2(e). Proulx does not prohibit judges from using suspended sentences “to endeavour to achieve a truly fit and proper sentence in the particular case” (Gladue, at para. 33). Where conditional sentences are unavailable, judges may give effect to s. 718.2(e) by considering suspended sentences with openness and flexibility. In any event, and as we say, it is clear that s. 718.2(e) was given effect in the circumstances of this case. The judge sentenced Ms. Sharma to 18 months’ incarceration, taking into account her experience as an Indigenous person under the Gladue framework, which was well below the established range for similar offences (sentencing reasons, at para. 80). As a reminder, s. 718.2(e) does not guarantee that Indigenous offenders will not receive carceral sentences.
Finally, to the extent the Court of Appeal pointed to Ms. Sharma’s circumstances as demonstrative of Parliament’s overreach, it collapsed the concept of seriousness of the offence into the concepts of circumstances of the offender and particulars of the crime. On this point, we endorse the sentencing judge’s comments: “[Ms. Sharma] committed a serious offence in importing cocaine ⸺ a reality undisturbed by her personal culpability or mitigating factors” (para. 141 (emphasis added)). The Court of Appeal for Saskatchewan made a similar point in R. v. Neary, 2017 SKCA 29,  7 W.W.R. 730: “The gravity and seriousness of the offences are not attenuated by the personal circumstances of the accused” (para. 39). We accept entirely that the circumstances which led Ms. Sharma to import drugs are tragic and that her moral culpability was thereby attenuated (which was reflected in a sentence of 18 months rather than the six years initially proposed by the Crown). But those facts do not make importation of a Sch. I substance, particularly in the quantity she carried, any less serious.”