Asper Centre Public Interest Lunch – Substantive Equality in Sentencing

The Asper Centre recently intervened in two cases before the Ontario Court of Appeal involving the criminal sentencing of marginalized people. Despite the Supreme Court of Canada’s aspirations in Gladue, Indigenous people in Canada continue to be criminalized and incarcerated at alarming rates. In particular, the over representation of Indigenous women in prisons has increased substantially over the past 10 years. Though their historical circumstances are different, Black Canadians also experience significant systemic discrimination and bias when dealing with police, in the courts, and in corrections.

In R v Sharma, the Asper Centre and the Women’s Legal Education and Action Fund (LEAF) jointly intervened on a constitutional challenge to ss. 742.1(c) and (e)(ii) of the Criminal Code, which eliminates conditional sentences for certain offences. Ms. Sharma is an Indigenous biracial woman who was convicted of a drug importation offence who, but for these provisions, would have been a suitable candidate for a conditional sentence.

In R v Morris, the Asper Centre intervened to suggest a framework for how to consider systemic factors in sentencing for Black Canadians. Mr. Morris was convicted of possession of illegal firearms. Upon sentencing, the judge was mindful of the social context in which Morris committed the offence with reference to reports from psychologists and social scientists with expertise on Black racism in Canada. 

The Morris and Sharma cases illustrate how the overarching principle of substantive equality can illuminate sentencing decisions in cases involving marginalized people. Substantive equality is a constitutional imperative that requires courts to analyze the potentially discriminatory impact of laws with regard to their social, political, and legal context. Substantive equality plays a vital role in the criminal justice system, including at the sentencing stage. These cases suggest that sentencing judges should be mindful of systemic discrimination at all stages of the process and the ways in which that discrimination might have impacted the individual or their circumstances.

On January 22, 2020, the Asper Centre will convene a panel discussion about these two interventions in which the panelists will discuss to what extent historical disadvantage can be considered in sentencing and more broadly in the criminal justice system, in order to achieve substantive equality for marginalized groups. 

The panelists will include Jessica Orkin (Goldblatt Partners, counsel for Asper Centre in Sharma), Nader Hasan (Stockwoods LLP, counsel for Asper Centre in Morris) and Emily Hill (Aboriginal Legal Services, Intervener in Sharma and Morris). 

Read the Asper Centre’s intervener facta in Sharma and Morris.

For further information, contact tal.schreier@utoronto.ca

-light lunch will be provided-