asper centre case

Asper Centre takes part in the Vote16 Summit in Ottawa

Posted on by Tal Schreier

By Vlad Mirel and Kate Shackleton

On May 29, 2024, academics, parliamentarians, and youth activists from across the globe gathered in Ottawa for Canada’s first-ever national Vote16 Summit. The event was organized by Vote16 Canada – a national campaign dedicated to lowering the voting age to 16 – and hosted by Senator Marilou McPhedran. 

To kick off the event, numerous experts presented evidence in favour of lowering the voting age to 16. Panelist Samantha Reusch (Executive Director, Apathy is Boring) stressed that the declining civic engagement Canada is experiencing presents a direct threat to the efficacy of its democracy. She emphasized that although youth feel alienated from the democratic process, they remain interested in politics. Sabreena Delhon illustrated how the pandemic negatively impacted civic engagement by removing students from schools and thus reducing their interaction with civic education. Lastly, Dr. Jan Eichhorn (Senior Lecturer/Research Director, University of Edinburgh) spoke about Scotland’s experience with lowering the voting age to 16, highlighting that Scottish youth became more politically-engaged than their UK peers who were not enfranchised. 

In the subsequent Q&A session, the panelists addressed audience concerns about social media and misinformation along with the partisan dimension of the voting age debate. The panelists expressed that many of the concerns that social media may unduly influence youth voting are already true for older generations. Furthermore, Professor Eichhorn outlined the non-partisan nature of the lowered voting age in Germany. 

Dr. Jan Eichhorn, Samantha Reusch, and Sabreena Delhon answer audience questions

Next up was the “Vote16 in Court” panel, featuring Sage Garrett and Caeden Tipler from Make It 16 New Zealand, Jacob Colatosti and Catherine He, who are two of the youth litigants involved in the ongoing voting age Charter challenge, and the Asper Centre’s Executive Director Cheryl Milne. 

Garrett and Tipler shared how Make It 16 New Zealand challenged the voting age based on the New Zealand Bill of Rights, which prohibits age discrimination against persons 16 years of age and older. They took their case all the way up to the Supreme Court, where the court held that the voting age was indeed inconsistent with the Bill of Rights. Although New Zealand’s parliamentary supremacy means that the government is not bound by the Court’s decision, Garrett and Tipler underscored that the case played a major role in raising awareness about their campaign. 

Next, Milne provided an update on the Canadian Charter challenge (led by the Asper Centre and Justice for Children and Youth). She explained that the government’s evidence has been reviewed and preparations for cross-examinations are underway. Colatosti and He also described how they got involved in the case and why youth voting is important to them. Colatosti was motivated to join the case when he was 16 due to his dissatisfaction with the rate of reform within Canadian politics. Meanwhile, He – who joined the litigation at 15 – voiced her support for enfranchising youth based on their position as “citizens, driving the future of change.”  

All five panelists then answered questions from the audience and noted some of the frequent questions they face. The panelists pointed out that Canada’s political cycle often results in the minimum voting age differing from when people actually get their first voting opportunity, with 19-year-old Colatosti still waiting to cast his first vote. In response to concerns that youth are too extreme or radical to vote, Garrrett stressed that no one should ever be disenfranchised based on their political opinions. Colatosti and He emphasized that parental influence is also not a persuasive counterargument, observing that youth are equally capable of influencing their parents. 

Panelists Caeden Tipler, Sage Garrett, Catherine He, Jacob Colatosti, and Cheryl Milne discuss the court challenges in New Zealand and Canada

The final panel – “Building Our Movement” – was composed of youth activists from across Canada (from various Vote16 chapters, the Fédération de la jeunesse franco-ontarienne, and the Francophone Youth Council) and international advocates like Bethania Lima from Brazil and Dr. Andrew Wilkes, who is the Chief Policy & Advocacy Officer of Generation Citizen in New York. The speakers encouraged those interested in advocating for legislative change to focus on drawing attention to their campaign and to reach out to local politicians. 

Bethania Lima (at far left) discusses how Brazil increased youth voter registration for the 2022 election

The Summit concluded with a symposium of more than 25 speakers who gave concise presentations on why they believed youth should be able to vote. Elder Verna McGregor welcomed the attendees. She analogized her dreamcatcher’s interwoven net to society itself, emphasizing how we are all interconnected and thus every voice must be heard in elections.  Several parliamentarians then expressed their support for lowering the voting age, such as Senators Robert Black, Kim Pate and Bernadette Clement as well as MPs Elizabeth May and Taylor Bachrach. Notably, Bachrach credited the youth litigants in the Charter challenge with inspiring the Private Member’s Bill to lower the voting age that he brought forward in 2021. MP Yves Perron of the Bloc-Quebecois outlined the important habit-forming impact voting at 16 would have. He stressed that youth voting is important not just for young people, but for the overall health of our democracy. Katie Yu and Amelia Penney-Crocker spoke on behalf of the youth litigants, with Yu commenting that lowering the voting age is about “treating young people as people.” 

MP Bachrach with the youth litigants (from left to right: Amelia Penney-Crocker, Katie Yu, Jacob Colatosti, and Catherine He)

Katie Yu and Amelia Penney-Crocker speak during the symposium portion of the Summit

Overall, the Vote16 Summit was an informative and inspiring event that promises to make important contributions to the movement for extending the vote to young people. By bringing together this diverse group of people with differing lived experiences and expertise, the Vote16 Summit provided its attendees with an incredibly enriching conversation surrounding youth voting. In addition to the ongoing Charter challenge, legislative change may be on the horizon thanks to Bill S-201 (introduced by Senator McPhedran). The bill is expected to go to Second Reading in the Senate in the near future, and to ensure the bill passes, interested individuals and organizations are encouraged to contact their provincial senators to express their support. A list of senators for each province as well as a statement in support of S-201 can be found on the Vote16 website. 

Emily Chan (Lawyer, Justice for Children and Youth), Mary Birdsell (Executive Director, Justice for Children and Youth), Katie Yu, Amelia Penney-Crocker, Jacob Colatosti, Catherine He (Youth Litigants), and Cheryl Milne (Executive Director, Asper Centre) 

Vlad Mirel and Kate Shackleton are rising 2L students at the Faculty of Law and are the current Summer Research Assistants at the Asper Centre.

Asper Centre Intervenes in Climate Change Case at ONCA

Posted on by Tal Schreier

by Chelsea Gordon, Daniel Kiesman and Sang Park

On January 15, 2024, the Asper Centre intervened before the Ontario Court of Appeal in Mathur v Ontario. The Asper Centre’s Constitutional Litigator in Residence Ewa Krajewska acted as counsel for the Asper Centre in this intervention. As students in the Asper Centre Clinic course this past term, we had the opportunity to contribute to the intervention by conducting research and drafting versions of the factum as part of our clinic coursework.

Mathur is a significant case because it is the first time that substantive legal issues of a constitutional challenge to insufficient government action to address climate change has been before an appellate court in Canada. Furthermore, this case is also one of the first s. 15(1) Charter cases to reach an appellate court since the Supreme Court modified its approach to s. 15(1) in R v Sharma.[1]

Background

The appellants are a group of seven young Ontarians. The appellants challenge a 2018 decision by the Government of Ontario to lower the province’s greenhouse gas emissions target to 30% below 2005 levels by 2030. Ontario set this target despite scientific research showing that to prevent serious adverse consequences in relation to health, food security, and human security, greenhouse gas emissions would need to be reduced by 52% below 2005 levels by 2030. As a result, the appellants argue that this emissions target violates s. 7 of the Charter by allowing a level of emissions that will lead to serious adverse consequences and put the lives of Ontarians at risk. The appellants also argue that the emissions target violates s. 15(1) of the Charter because young people and future generations will disproportionately bear the burdens and face the adverse effects of inadequate climate change policy.

The Superior Court of Ontario held that the appellants’ challenge was justiciable but dismissed the appellants’ Charter claims.[2] The Asper Centre also intervened at the Superior Court, read the factum here.

With regard to s. 7 the application judge appeared open to the idea that climate change could be the kind of issue area where a positive s. 7 obligation on government could arise and assumed without deciding that a positive obligation arose here.[3] However, the application judge held that the emissions target did not infringe any principles of fundamental justice and therefore did not infringe s. 7.[4] Regarding s. 15(1) the application judge, applying Sharma, held that the claim must fail at the first step of the test as causation cannot be established. The application judge held that causation could not be established because the “disproportionate impact is caused by climate change and not the [emissions] target.”[5]

The Asper Centre’s Intervention at the Court of Appeal

The Asper Centre’s intervention at the Court of Appeal is focused on two issues. First, that the application judge erred by adopting a formalistic approach to causation that has consistently been rejected by the s. 15(1) jurisprudence. Second, given the complexities and the novelty of climate change, should the Court of Appeal find a Charter infringement it ought to go beyond declaratory relief to craft an appropriate and just remedy under s. 24(1) of the Charter.

Read the Asper Centre’s factum here.

In its submissions relating to causation in the s. 15(1) analysis, the Asper Centre traces the history of equality jurisprudence to underscore that substantive equality drives the s. 15(1) analysis and that the application judge erred by abandoning a substantive approach and adopting a formalistic analysis of causation. The Asper Centre notes that from the start, in the first s. 15(1) case Andrews v Law Society of British Columbia, the Supreme Court recognized that a seemingly neutral law may create an unequal impact on a particular group and as a result the s. 15(1) analysis must focus on the impact of the law on a particular group.[6] This approach has been repeatedly affirmed in subsequent Supreme Court decisions. Most recently the importance of substantive equality was reaffirmed in Sharma where the Supreme Court stated it is an “animating norm” of s. 15(1).

Furthermore, the intervention seeks to emphasize that the proper approach to causation must be flexible and contextual. Such an approach does not require that an impugned law be the only cause of an adverse impact. Rather, to establish causation a claimant need only show that a law is a cause. To support this approach the Asper Centre highlights cases such as Fraser v Canada (Attorney General) where an RCMP job-sharing program, which was not in and of itself the root cause of wage inequality, was found to infringe s. 15(1) because it furthered the economic disadvantages women face in society.[7]

Despite these precedents, the application judge adopted a formal and rigid approach to causation, holding that the emissions target did not infringe s. 15(1) because the harms to youth are caused by climate change. This approach harkens back to the rejected approach to equality taken under the Canadian Bill of Rights wherein a provision which restricted access to employment insurance to pregnant women was allowed to stand because the discriminatory impact on pregnant women was not caused by the legislation, but by the fact that the women were pregnant. This approach also departs from the decades of precedent which instruct a flexible and contextual approach that centres substantive equality at the heart of s. 15(1).

Should the Court of Appeal find a Charter infringement the Asper Centre’s submission encourages the Court to be creative and utilize its remedial discretion under s. 24(1) of the Charter to forge an appropriate and just remedy. Declaratory relief will be insufficient in this case as the impacts of climate change, stemming from government inaction present complex and novel issues for the legal system. Faced with novel issues the Supreme Court, in cases such as Ontario v G[8] and Doucet-Boudreau v Nova Scotia (Minister of Education),[9] has crafted unique remedies under s. 24(1). Furthermore, as the Asper Centre notes in its factum, courts in other jurisdictions, such as the German Constitutional Court[10] and the Supreme Court of the Netherlands,[11] which have confronted the issue of inadequate government climate policies have crafted creative remedies aimed at addressing the complexities of climate change.

Chelsea Gordon, Daniel Kiesman and Sang Park are JD Candidates at the Faculty of Law and were Asper Centre clinic students in Fall 2023.

[1] R v Sharma, 2022 SCC 39.

[2] Mathur v Ontario, 2023 ONSC 2316

[3] Mathur v Ontario, 2023 ONSC 2316 at para 82.

[4] Mathur v Ontario, 2023 ONSC 2316 at para 142.

[5] Mathur v Ontario, 2023 ONSC 2316 at para 178.

[6] Andrews v Law Society of British Columbia, [1989] 1 SCR 143 at 164.

[7] Fraser v Canada (Attorney General), 2020 SCC 28 at paras 92-107, 113.

[8] Ontario (Attorney General) v G, 2020 SCC 38.

[9] Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62.

[10] 1 BvR 2656/18 (2021).

[11] C-565/19 P, C/09/456689 / HA ZA 13-1396.

Asper Centre intervenes in Mathur et al v His Majesty the King in Right of Ontario

Posted on by Tal Schreier

On January 15, 2024, the Asper Centre will be intervening in the case of Mathur et al v His Majesty the King in Right of Ontario at the Ontario Court of Appeal, generously represented by our counsel and recent Constitutional Litigator in Residence Ewa Krajewska of Henein Hutchison Robitaille LLP.

This case, which commenced in 2019, involves a Charter challenge to the Ontario government’s legislative response to climate change, more specifically its adoption of weaker greenhouse gas emissions reduction targets with the passing of the Cap and Trade Cancellation Act, 2018, S.O. 2018, c. 13. It is the first Charter challenge in Ontario against government actions taken related to climate change to reach a full hearing on its merits.

The Appellants are a group of 7 youth climate justice activists and their guardians, who assert that the dangers and existential risks posed by climate change violate the Section 7 and 15 Charter rights of Ontario youth and future generations.

Although the court at first instance found that the issues in the application were justiciable, it decided that the appellants had not established any violation of Charter sections 7 or 15.  

The Asper Centre is intervening on two issues in this appeal: the proper interpretation and application of the causation requirement in s. 15(1) of the Charter, and how the remedies available under s. 24(1) of the Charter can meaningfully vindicate the rights and freedoms of vulnerable claimant groups.

You can read our factum at the ONCA appeal here. The Asper Centre previously intervened in this case at the Ontario Superior Court of Justice. You can find our factum in that court here.

In Mathur v Ontario Court Rejects Charter Challenge to Ontario’s Emissions Target  

Posted on by Tal Schreier

by Daniel Kiesman

In Mathur v Ontario[1] the Ontario Superior Court of Justice rejected the constitutional challenge to the greenhouse gas emissions target set by Government of Ontario under s. 3(1) of the Cap and Trade Cancellation Act (“CTCA”).[2]

Background

In 2018, the Government of Ontario through s. 3(1) of the CTCA set an emissions reduction target at 30% below 2005 levels by 2030. However, scientific research showed that to prevent serious adverse consequences in relation to health, food security, and human security, greenhouse gas emissions would need to be reduced by 52% below 2005 levels by 2030.  The Applicants, a group of young Ontarians, argued the target set by Ontario was too low, failing to adequately address climate change and leading to adverse future consequences for young people and for future generations.

The Applicants advanced two Charter arguments. First, by failing set the target high enough Ontario was authorizing and creating a level of emissions that will lead to serious adverse consequences and put the lives of Ontarians at risk, violating s. 7 of the Charter. Second, the Applicants argued the CTCA violates s. 15 of the Charter because it distinctly encumbers young people and future generations who will endure most of the impacts of climate change. In so doing, the Applicants argued the CTCA perpetuated a disadvantage since young people and future generations lack political decision making power and their interests are often ignored.

Justiciability

The judge found the challenges regarding the emissions target set by Ontario to be justiciable.[3] This is notable because the Federal Court found a past challenge to government climate action to be non-justiciable. In La Rose v Canada, the Federal Court held that a constitutional challenge of the Federal Government’s greenhouse gas emissions target was non-justiciable because the challenge was not focused on specific government action or legislation but rather focused on the Federal Government’s overarching policy positions regarding climate change.[4] The La Rose case was similarly brought by a group of young people concerned about the impacts of climate change and the decision in that case is currently under appeal to the Federal Court of Appeal. Nevertheless, the ruling in Mathur signifies that Charter challenges to government climate action can be justiciable when they are focused on a specific government action, which in this case was the target set under s. 3(1) of the CTCA.

Section 7

Under the s. 7 analysis the judge characterised the Applicants’ complaint as being that the emission target set by Ontario was not high enough. Therefore, the judged interpreted the Applicants’ s. 7 claim as a positive right claim, suggesting the Applicants were seeking a declaration that Ontario has a positive obligation to prevent the impacts of climate change from posing a threat to young people’s security of the person.[5] While noting in Gosselin v Quebec (Attorney General) the Supreme Court rejected the idea s. 7 creates a general positive obligation on governments to ensure citizens have the benefits of life, liberty and security of the person, the judge highlighted that Gosselin left open the possibility of positive obligations under s. 7 in certain unique circumstances.[6] The judge found that, “the Applicants make a compelling case that climate change and the existential threat that it poses to human life and security of the person present special circumstances that could justify the imposition of positive obligations under s. 7 of the Charter.”[7] The Court appeared open to the idea that the impacts of climate change could be special enough to for a court to impose a positive obligation but noted that if such a positive obligation were to be found there would likely be a different s. 7 analytical framework used in such cases. Ultimately, the judge assumed without deciding that a positive obligation under s. 7 arose in this case but went on to reject the s. 7 claim on the grounds that Ontario, in setting the emissions target, did not violate any principles of fundamental justice.[8]

While the result of the s. 7 analysis in this case may be disappointing to those concerned about the effects of climate change and government inaction, the Court’s analysis in Mathur presents a potentially important pathway forward for climate change focused constitutional litigation. The decision shows that courts may be open to imposing positive obligations on governments under s. 7. The decision is also notable for recognizing the unique and pressing challenges climate change posses to Canadian society such that climate change can be considered a special circumstance as articulated in Gosselin which may give rise to a positive obligation under s. 7. Furthermore, this decision adds to a growing chorus of courts across Canada which have expressed openness to the possibility that there may be a positive obligation on governments to adequately combat climate change. In La Rose the Federal Court did not foreclose the possibility that such positive obligations could exist.[9] In Kreishan v Canada (Citizenship and Immigration) the Federal Court of Appeal cautioned that s. 7 should not remain simply “frozen in time”[10] and expressly listed climate rights as a domain in which positive obligations under s. 7 could arise.[11] These decisions show that future litigation may be able to persuade a court that there are positive obligations on governments, under s. 7, to adequately combat climate change.

Section 15

With respect to the Applicants’ s. 15 claim, the Court applied the s. 15 test following the guidance given recently by the Supreme Court in R v Sharma.[12] At the first step of the test the judge accepted that young people are disproportionately affected by climate change.[13] However, the judged stressed that any disproportionate impact is caused by climate change itself and not by emissions targets set by Ontario through s. 3(1) of the CTCA.[14] As such, the Applicants’ claim failed to show Ontario’s actions created or contributed to the disproportionate affects of climate change faced by young people. While the emissions target is not high enough to thwart the impacts of climate change, the emissions target itself does not cause or contribute to the adverse effects of climate change that young people will face. Given the requirements set out in Sharma for claimants to show causation at the first stage of the s. 15 analysis, the judge concluded the s. 15 must fail because the requisite causation could not be established in this case.[15]

The judge, echoing the Supreme Court in Sharma, also noted there is no positive obligation of governments to address inequalities through remedial legislation.[16] The emission target is part of a remedial scheme aimed at addressing climate change. The Supreme Court stated that when a government chooses to address inequality it can legislate incrementally and leave gaps between members of protected groups who may be affected by such legislation and members of non-protected groups unaffected by such legislation.[17] The emissions target in question were viewed by the Court as incremental and remedial legislation Ontario chose to enact to address the issue of climate change. Therefore, any gap the CTCA creates does not in itself infringe s. 15.[18]

The Applicants also advanced a s. 15 argument claiming that since the impacts of climate change will only get worse over time, young people and future generations will face the brunt of impacts of climate change since they will live longer into the future. The judge also rejected this argument. The Court again noted that a claim relating to the effects of climate change on future generations fails to meet the causal burden at the first step of the s. 15. The more impactful future effects of climate change are not caused by Ontario’s emissions target but caused by climate change.[19] Furthermore, the judge appeared skeptical that the Applicants could even advance a s. 15 claim on behalf of future generations. Since everyone who lives into the future will be affected by climate change, this is not a distinction based on age because people of all ages will face the impacts of climate change in the future. Therefore, the judge held the Applicant’s claim is based solely on a temporal distinction and cannot succeed because such a distinction is not an enumerated or analogous ground.[20] Even if future generations could be considered to fall under the enumerated ground of age, or recognized as an analogous ground itself, the judge held that the claim would still fail. Citing Sharma, the judge noted that the disproportionate effects felt by future generations, would be a “gap” which already existed and was left unaffected by emissions target set by Ontario and therefore would not infringe s. 15.[21]

Mathur illustrates the impact of the decision in Sharma on s. 15 claims. The evidentiary burden on claimants to show a government action “creates or contributes to a disproportionate impact,”[22] at the first stage s. 15 test and the Supreme Court’s assertion that it does not infringe s. 15 to leave gaps between different groups so long as government action did not cause those gaps are important developments which drive the judge’s s. 15 analysis in this case.[23] This guidance in Sharma may prove to be difficult hurdles to climb for litigants bringing s. 15 challenges to government climate actions. Governments do not create or cause climate change. While governmental inaction will not abate the adverse consequences of climate change, it may prove difficult to show inadequate government action independently cause the impacts of climate change to worsen. Furthermore, as the judge accepted, young people already bear the brunt of the impacts of climate change. However, the gap between young people and other groups in society in relation to the adverse effects of climate change is again created by climate change. Government actions which will fail to remedy the issue of climate change will simply leave these gaps unaffected and therefore, per Sharma would not infringing s. 15.

Looking Forward

Mathur was the first case to substantively tackle a constitutional challenge to a government climate change policy and there are important takeaways to consider moving forward. First, constitutional challenges to government climate actions need to be aimed at specific government actions or legislation in order to be justiciable. Simply pointing to a broad constellation of government policies or positions on climate change will likely be viewed by courts as non-justiciable. Second, courts appear to be open to entertain arguments that climate is a special domain in which positive obligations on governments could potentially arise under s. 7. Given the right case with the right facts this could prove to be an exciting area for significant development of the law and advance climate activists’ cause. Third, the decision in Mathur illustrates that, given the majority decision in Sharma, s. 15 challenges to government climate actions will likely prove difficult to successfully make out. Overall, while the result in Mathur may be discouraging for individuals concerned about climate change, the decision shows there remain potentially viable avenues for future successful constitutional challenges to government climate actions.

Daniel Kiesman is a 1L JD candidate at the Faculty of Law and is an Asper Centre Summer Research Assistant

[1] Mathur v Ontario, 2023 ONSC 2316 [Mathur].

[2] Cap and Trade Cancellation Act, 2018, SO 2018, c 13, s 3(1).

[3] Mathur, supra note 1 at para 106.

[4] La Rose v Canada, 2020 FC 1008 at paras 40—41 [La Rose].

[5] Mathur, supra note 1 at paras 122, 124, 132.

[6] Ibid at paras 125, 137 citing Gosselin v Quebec (Attorney General), 2002 SCC 84 at paras 81—83.

[7] Ibid at para 138.

[8] Ibid at paras 142.

[9] La Rose, supra note 4 at paras 69—72.

[10] Kreishan v Canada (Citizenship and Immigration), 2019 FCA 223 at para 139.

[11] Ibid.

[12] R v Sharma, 2022 SCC 39 [Sharma].

[13] Mathur, supra note 1 at para 178.

[14] Mathur, supra note 1 at para 178.

[15] Ibid citing Sharma, supra note 12 at para 42.

[16] Mathur, supra note 1 at para 178 citing Sharma, supra note 12 at paras 40, 63.

[17] Sharma, supra note 12 at paras 40, 63—64.

[18] Mathur, supra note 1 at para 178.

[19] Ibid at para 179.

[20] Ibid at para 180.

[21] Ibid at para 182.

[22] Sharma, supra note 12 at para 42.

[23] Ibid at paras 40, 42; Mathur, supra note 1 at para 178.

R v Sharma: Supreme Court of Canada upholds legislation limiting conditional sentences despite Indigenous over-incarceration concerns

Posted on by Tal Schreier

by Kailyn Johnson

In a 5-4 split, the Supreme Court of Canada upheld the constitutionality of sections 742.1(c) and 742.1(e)(ii) of the Canadian Criminal Code (R v Sharma, 2022 SCC 39 at paras 2-4 [Sharma]). These sections of the Criminal Code, which were amended in 2012, limit access to conditional sentences for certain classes of offences.[1] 

Ms. Cheyenne Sharma challenged the constitutionality of the two provisions under sections 7 and 15(1) of the Canadian Charter of Rights and Freedoms (the Charter). She argued that the provisions were unconstitutional under section 7 of the Charter because they arbitrarily and overbroadly limit the freedom of offenders (Sharma at para 85). Additionally, she asserted that the legislation was unconstitutional under section 15(1) of the Charter because it disproportionately and negatively affects Indigenous offenders (Sharma at para 72). This, she contended, violates the right to equality before the law, derived from section 15(1). Ms. Sharma is of Ojibwa ancestry and a member of the Saugeen First Nation (Sharma at para 5). 

In 1996, Parliament introduced section 742.1 of the Criminal Code, creating the framework of the conditional sentence. The bill also included section 718.2(e) of the Criminal Code which instructed courts to consider alternatives to imprisonment, appropriate under the circumstances, “with particular attention to the circumstances of Aboriginal offenders” (Sharma at para 130). Both these provisions were designed to address Indigenous over-incarceration in Canadian prisons. The 2012 amendments, however, reduced judges’ discretion in limiting prison sentences for Indigenous offenders. 

Background on the case 

In 2015, Ms. Sharma was caught smuggling nearly 2 kilograms of cocaine into a Toronto airport. Ms. Sharma pleaded guilty to importing a controlled substance and was sentenced to 18 months in prison (Sharma at para 81). Ms. Sharma seemed to be an ideal candidate for a conditional sentence (Sharma at para 224). She had no previous criminal record. At only 20 years old, Ms. Sharma was her child’s sole provider. At the time of the offence, Ms. Sharma had little support and no financial resources. She was on the verge of eviction. She had smuggled the drugs after her then-partner offered her $20,000 to transport them from Suriname to Toronto, where she was apprehended (Sharma at para 5-6, 116). 

Furthermore, a Gladue report revealed that Ms. Sharma was subject to tremendous intergenerational trauma.[2] Her grandmother was a residential school survivor. Her mother had been placed in foster care. Ms. Sharma herself had been assaulted, forced to drop out of school, and struggled with substance abuse (Sharma at para 6, 121). At the time of sentencing, Ms. Sharma had moved to reserve lands and was receiving help for her substance use issues while working towards her high school diploma (Sharma at para 121). Ms. Sharma’s circumstances and the Indigenous over-incarceration crisis were a few of many compelling reasons for Ms. Sharma to complete her sentence in the community rather than in prison. 

Procedural History 

The trial judge determined that Ms. Sharma was ineligible for a conditional sentence due to the 2012 amendment, 742.1(c). This amendment prohibits offenders who are convicted of offences which carry maximum prison terms of 14 years or life, from receiving conditional sentences, even if the offender themselves receives a much shorter term. Ms. Sharma challenged the constitutionality of this provision and also 742.1(e)(ii), which prohibits offenders convicted of certain offences, including drug trafficking, from receiving a conditional sentence if the maximum penal term for the crime is 10 years or more. The trial judge dismissed her constitutional challenge under section 15 of the Charter (Sharma at para 20). At the time, Ms. Sharma did not include her section 7 challenges in oral arguments (Sharma at para 15). Ms. Sharma appealed this verdict and her sentence. 

At the Ontario Court of Appeal, Ms. Sharma renewed her challenge to the legislation under both section 7 and section 15 of the Charter. The majority of the court struck down the provisions as unconstitutional (Sharma at para 21). They held that both provisions were overbroad under section 7 of the Charter and impermissible under section 15(1) because they discriminated against Indigenous offenders (Sharma at paras 22-23). The Crown appealed to the Supreme Court of Canada. 

Majority at the Supreme Court of Canada 

The majority of the Supreme Court of Canada held that sections 742.1(c) and 742.1(e)(ii) are constitutional under section 7 of the Charter. While the amendments do inhibit “the right to life, liberty, and security of the person” guaranteed by section 7, through imprisonment, they do so in “accordance with the principles of fundamental justice” (Sharma at para 85). The statutes are neither arbitrary nor overbroad. 

The majority also upheld sections 742.1(c) and 742.1(e)(ii) as constitutional under section 15 of the Charter. Section 15(1) guarantees: 

  1. (1) 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. 

The majority concluded that Ms. Sharma failed to meet the evidentiary burden required for a successful section 15 challenge. To succeed, Ms. Sharma would need to show 1) that the legislation disproportionately affected Indigenous people and 2) the disproportionate effects of the legislation reinforce, exacerbate, perpetuate, or create disadvantage. The Court found that Ms. Sharma failed to produce evidence which showed the legislation disproportionately impacts Indigenous offenders (Sharma at para 67, 76). The majority found that “historic or systemic disadvantage” alone was not enough to establish the disproportionate impact of this specific legislation on Indigenous offenders (Sharma at para 71). The analysis emphasizes a requirement to show causation through evidence that the impugned law “created or contributed to” the disproportional impact on the claimant group (Sharma para 45). Both amendments were upheld under section 15 because the arguments failed step one of the test due to the lack of evidence of causation. 

Dissent at the Supreme Court of Canada 

Four justices of the Supreme Court dissented to the majority holding in Sharma. Karakatsanis J., writing for the dissent, found both provisions unconstitutional, breaching both section 7 and section 15(1) of the Charter. Section 7 was breached because the revisions are overbroad (Sharma at para 118). By using the maximum sentence of a crime as a proxy for its seriousness, the legislation captures not only serious offenders but also offenders whose crimes were only potentially serious (at para 164). For example, if two offenders are convicted of the same crime, both will share the same maximum sentence. Yet the offender sentenced to only 1 year in prison has only committed a potentially serious crime, while the offender sentenced to 14 years imprisonment has committed a serious crime. Despite the differences in severity and actual penal term, both are barred from conditional sentencing by the same provision. Thus, the legislation captures offenders outside its intended scope (serious crimes) and is therefore overbroad. 

The dissent also held that both 742.1(c) and 742.1(e)(ii) are unconstitutional under section 15(1). The dissent recognizes that Indigenous over-incarceration is a result of Canada’s colonial history (Sharma at para 114). While sentencing laws cannot change this past or heal the social issues leading to over-incarceration, they are uniquely positioned to address or exacerbate the effects. 

The dissent applies the same test as the majority but states that the majority’s clarification “seek[s] to revise the test” and “resurrect[s] their rejected arguments in Alliance and Fraser” contrary to stare decisis” (Sharma at para 204). The dissent observes that facially equal treatment under the law may lead to unequal results (Sharma at para 187). The Gladue framework was specifically designed to combat this issue. By considering Indigenous circumstances during sentencing decisions, the courts were working towards achieving substantive equality. The amendments to section 742, however, limit access to conditional sentences and other remedial tools. While the legislation applies to all offenders, it distinguishes by race because it prevents Indigenous offenders from using the Gladue framework (Sharma at para 233). The legislation thus compels judges to give harsh prison sentences to Indigenous offenders where a lesser sentence may otherwise have been appropriate because of Gladue principles. Only Indigenous offenders are impacted in this way and imposing prison sentences exacerbate historic and systemic disadvantages (Sharma at para 237). Therefore, the dissent finds that the statutes are unconstitutional under section 15 of the Charter. 

Impacts of the Sharma decision 

There were 21 interveners in the Sharma case at the Supreme Court of Canada level.  In its factum, the David Asper Centre for Constitutional Rights (“Asper Centre”) argued that, because the criminal justice system plays a causal role in the disadvantage of Indigenous peoples, section 15 of the Charter imposes a positive remedial duty (Factum of the Intervener the David Asper Centre for Constitutional Rights at para 1). The majority of the Court dismissed this argument, finding that “15(1) does not impose a general, positive obligation on the state to remedy social inequalities or enact remedial legislation” (Sharma at para 63). Chris Rudnicki, a criminal lawyer and lecturer at Lincoln Alexander School of Law, called this particular result “profoundly disappointing.”[3] 

In their factum at the Court of Appeal, the Women’s Legal Education and Action Fund (“LEAF”) and the Asper Centre submitted evidence from Statistics Canada and government reports of the growing rates of over-incarceration of Indigenous people in Canada. From 2007/2008 to 2017/2018, admissions of Indigenous men to prison increased 28%. Admission of Indigenous women to custody increased 60%. Indigenous incarceration rates are also grossly disproportionate. Indigenous people make up only 4% of the Canadian adult population, yet they account for 30% of all admissions to provincial and territorial custody (Factum of the Interveners Women’s Legal Education and Action Fund and the David Asper Centre for Constitutional Rights at para 8). The statistical evidence included in the intervening submissions confirms the conclusions of the Ontario Court of Appeal about the over-incarceration of Indigenous women.  

The majority at the Supreme Court of Canada had serious concerns about the intervening parties’ submissions. “Interveners creating a new evidentiary record at the appellate level undermines the trial process” they concluded (Sharma at para 75). However, the majority of the Supreme Court failed to identify why they found it objectionable to include the intervening submissions in the evidentiary record. The decision to diminish the role of interveners, thus largely dismissing their evidence, was heavily critiqued by the dissent. This was one of the reasons the dissent found that “My colleagues’ revisions are not only unsolicited, unnecessary, and contrary to stare decisis; they would dislodge foundational premises of our equality jurisprudence. This is not “clarification”; it is wholesale revision” (Sharma at paras 205-206). Overall, LEAF feels the Sharma decision “will make future equality rights claims more difficult.”[4]  

The decision has serious repercussions on Indigenous peoples, as the dissent observed. The impugned provisions force the hands of judges to impose harsher sentences on Indigenous offenders than they may have otherwise (Sharma at 238). These prison sentences are often contrary to Indigenous principles of justice such as community healing, reconciliation, and reintegration of the offender (Sharma at para 214, 240). They also remove Indigenous people from their community, family, and culture, thereby stripping them of their support (Sharma at para 240). The decision fails to realize the objectives of section 718.2(e), to consider sentences alternative to prison terms, “with particular attention to the circumstances of Aboriginal offenders.” Sharma fails to meaningfully address Indigenous over-incarceration. The continued enforcement of 742.1(c) and 742.1(e)(ii) may reinforce cycles of intergenerational trauma. 

While reactions to the Court’s decision were largely negative,[5] Ms. Sharma’s lawyer, Nader Hasan, LEAF, and many others are using this as a rallying cry to pass Bill C-5.[6] If enacted, Bill C-5 would amend both the Criminal Code and the Controlled Drugs and Substances Act, repealing mandatory minimum sentences for a variety of offences. This would allow for greater judicial discretion when assessing the individual circumstances of offenders during sentencing as well as to increase the usage of conditional sentences. These proposed changes are designed to curb the over-incarceration of Black and Indigenous people in Canadian prisons.[7] 

Kailyn Johnson is a 1L JD candidate at the Faculty of Law and is a member of the Asper Centre’s Consent and Constitution student working group. 

[1] Conditional sentences are an alternative to serving a term in prison. Instead, individuals who meet legislative criteria and are not deemed a safety threat to their communities can serve their sentence in the community, under surveillance, with specific requirements. 

[2] Gladue reports collect relevant personal information on Indigenous offenders during the sentencing stage of a trial. These reports are used to tailor a prison sentence to suit both the individual circumstances of the offender as well their community. This may include information on the individual’s family history, culture, hereditary laws, and values. Reintegration, reconciliation, and community healing may be special considerations when sentencing Indigenous offenders (Gladue at para 214). 

[3] Chris Rudnicki, [@chrisrudnicki], ““There is no general, positive obligation on the state to remedy social inequalities or enact remedial legislation, nor is the legislature bound to its current policies.” A profoundly disappointing result in R v Sharma, 2022 SCC 39,” Twitter, 4 Nov 2022 

[4] Women’s Legal Education and Action Fund, “Supreme Court decision fails to address the mass incarceration of Indigenous women and makes equality rights claims more difficult,” 4 Nov 2022, https://www.leaf.ca/news/supreme-court-decision-fails-to-address-the-mass-incarceration-of-indigenous-women-and-makes-equality-rights-claims-more-difficult/. 

[5] Lisa Kerr [@coleenlisa], “This is a hard one to report. R v. Sharma. In a 5:4 decision, majority holds that Criminal Code sections that prevent conditional sentences do not limit s. 7 or s. 15 rights,” Twitter, 4 Nov 2022, Nader Hassan, [@Nader_Hassan_law], “ While today’s decision in #Sharma is beyond disappointing, the policy justification for #BillC5 is just as sound as ever. Parliament needs to address Indigenous mass incarceration,” Twitter, 4 Nov 2022, 

[6] Nader Hasan, [@Nader_Hasan_law], “While today’s decision in #Sharma is beyond disappointing, the policy justification for #BillC5 is just as sound as ever. Parliament needs to address Indigenous mass incarceration,” Twitter, 4 Nov 2022; Criminal Lawyers Association, [@ClaOntario], “Today’s @SCC_eng decision in R v. Sharma drives home the importance of Bill C-5. We call on the @SenateCA to pass C-5 quickly so that judges once again have discretion to craft fit sentences that take into account experiences with #systemicracism,” Twitter, 4 Nov 2022, 

[7] Department of Justice Canada, “Bill C-5: Mandatory Minimum Penalties to be repealed,” 7 Dec 2021, https://www.canada.ca/en/department-justice/news/2021/12/mandatory-minimum-penalties-to-be-repealed.html.