Asper Centre granted intervener status in 2 upcoming Ontario Court of Appeal cases and seeks standing in a third one

City of Toronto v. Attorney General of Ontario et al

On September 10, 2018, Ontario Superior Court Judge Edward Belobaba in City of Toronto et al v. Ontario (Attorney General), 2018 ONSC 5151 declared that the province of Ontario had “substantially interfered” with the Charter section 2(b) freedom of expression rights of both the municipal ward election candidates and City of Toronto voters and struck down the province’s Bill 5 (which reduced the number of City of Toronto wards from 47 to 25) as unconstitutional.

The province appealed the decision to the Ontario Court of Appeal, which on September 19, 2018 stayed the order of the Superior Court pending the appeal, and thus allowed the election to proceed with the reduced number of wards.

The appeal of the lower court decision will be heard on June 10-11, 2019. The Asper Centre has been granted intervener status in this appeal, with its arguments focusing on the role that section 2(b) of the Charter plays “in ensuring a stable and protected election framework which is necessary to foster full engagement in the democratic process.”  Read the Asper Centre’s Intervener Factum here.

R v. Sharma

Ms. Sharma is a bi-racial Indigenous woman, whose ex-boyfriend used her as a drug mule and she was charged and convicted with importing just under 2kgs of cocaine. She would have been a suitable candidate for a conditional sentence but for the prohibition preventing drug importers from receiving a conditional sentence.

Based on a s.12 Charter argument advanced by Ms. Sharma that 2 years in jail would be grossly disproportionate and thus cruel and unusual punishment, the judge in R. v. Sharma, 2018 ONSC 1141, found that the mandatory minimum sentence of 2 years under the Act was unconstitutional and unjustified under section 1 of the Charter.  This aspect of the decision was not appealed.

Ms. Sharma also advanced a s.15 Charter argument that s.742.1(b) and (c) of the Criminal Code disproportionately affects Indigenous women as it removes the ability to serve their sentences as conditional sentences. The judge did not address (b) since he had already found the mandatory minimum to be unconstitutional. As for (c), the judge held that there is no reason to believe that the prohibition on conditional sentences, on the record before it, created an adverse effect such that it can qualify as a distinction based on Aboriginal status. This claim was dismissed.

Ultimately, the judge determined 18 months incarceration to be just, and reduced it by only 1 month given Gladue factors.

Ms. Sharma appealed her sentence to the Ontario Court of Appeal and the Asper Centre jointly with LEAF (the Women’s Legal Education and Action Fund) were granted intervener status in this appeal.

R v. Morris

Mr. Morris is a black male who was charged with multiple offences including possession of illegal firearms and assaulting a police officer. He was convicted only of the firearms offences.

Upon sentencing, the judge considered Mr. Morris’ personal social context, based on reports from psychologists and social scientists with an expertise on black racism in Canada. The Crown sought 4-4.5 years while the defence sought 1 (before Charter breaches were accounted for). In his decision the judge mentions that reports, such as the ones he was presented with, are not new to the law given Gladue reports for Indigenous offenders. He ultimately, in light of  Mr. Morris’s upbringing and social context (among the other mitigating and aggravating factors), sentenced him to 15 months, reduced to 12 months for Charter breaches.

The Crown appealed the sentence stating that the sentencing judge erred by imposing an unfit sentence, erred in his treatment of social context evidence and erred in his treatment of aggravating/mitigating factors.

The Asper Centre has applied for intervener status in this case. The motion is scheduled to be heard on June 13th.