asper centre case

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. 

News Statement: Young Canadians File Court Challenge to Lower Federal Voting Age – Calling it Unconstitutional

Posted on by Tal Schreier

TORONTO, Dec. 1, 2021 – A group of Canadian children and youth are set to make history, opening the possibility that they and their peers may be able to cast a ballot in the next federal election. The 13 young people range in age between 12 to 18 years old and hail from coast to coast to coast, including Nunavut, British Colombia, Alberta, Saskatchewan, Ontario, Quebec, and Nova Scotia. They have filed an application at the Ontario Superior Court of Justice to challenge the voting age in Canada, and are arguing that the Canada Elections Act, which prevents citizens under the age of 18 from voting in federal elections, is in violation of Sections 3 and 15 of the Charter of Rights and Freedoms and is therefore unconstitutional.

Section 3 of the Canadian Charter of Rights and Freedoms states that all Canadian citizens have a right to vote in federal and provincial/territorial elections, and section 15 states that everyone is equal before and under the law without discrimination based on age. Additionally, the Supreme Court of Canada, in the case Frank v Canada, made it clear that any limit on Canadians’ right to vote must be clearly justified. Children represent nearly one quarter of Canada’s population, yet they remain the only disenfranchised citizens in our society.

The move comes days after Senator Marilou McPhedran introduced BILL S-201 in the Senate to lower the voting age from 18 years to 16. The bill calls for a referendum to amend the Canada Elections Act and the Regulation Adapting the Canada Elections Act.

“Youth are the future. But as it stands, we can’t vote for who gets to shape that future – and particularly in this unprecedented climate crisis, lack of youth voting rights might mean that we don’t have a future at all,” says Amelia Penney Crocker, a youth litigant from Halifax.

The court challenge is being supported by Justice for Children and Youth (JFCY) and the David Asper Centre for Constitutional Rights at the University of Toronto (Asper Centre).

“Decision-makers tend to cite outdated factors when denying young people access to the polls. They are the same factors historically used to deny other groups the right to vote,” say the lawyers at Justice for Children and Youth. “We have seen a continued rise in young people’s efforts to be heard — millions marching on issues that have a direct impact on their lives and the world in which they live, yet they still can’t vote.”

Already, four of Canada’s federal political parties permit those under 18 to vote for party leadership. The Liberal Party of Canada, Conservative Party of Canada, and Green Party of Canada allow members as young as 14. The federal New Democratic Party does not set out a minimum age for membership, but its provincial and territorial NDPs typically require members to be 14 or older. The Ontario NDP accepts 13-year-olds as full voting members.

“As children and youth, we deserve to speak for ourselves on the issues that matter to us and affect our lives, such as climate change and mental health. Our voices should not be ignored, as we know what actions are needed to address these issues and better the world for future generations, and we are already making change in many ways—we’re hoping that gaining the right to vote will be the next step,” says Katie Yu, a 15-year-old litigant from Iqaluit.

The fight to lower the voting age is also happening at municipal and provincial levels across the country. In June, the city of Vancouver officially endorsed lowering the voting age to 16 in municipal elections across B.C. Meanwhile, the P.E.I. provincial parliament struck down a similar attempt in April.

“Making the kinds of decisions that people make when voting is often called cold decision making – you have information and time to consider alternatives and make choices,” say the lawyers at JFCY.  “We know from brain science research, from direct experience, and from international examples that people under 18 are equally capable as those over 18 of making voting decisions. We also know that including voters under age 18 improves democracy.”

According to the Universal Declaration of Human Rights: “everyone has the right to take part in the government of his country, directly or through freely chosen representatives.” The United Nations Convention on the Rights of the Child further requires countries to “assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child” in accordance “with the age and maturity of the child.”

Other countries and international jurisdictions that have lowered their voting age to 16 include Argentina, Austria, Brazil, Ecuador, Germany, Scotland and Wales.

Media inquiries:

Andrea Chrysanthou

Director, NATIONAL Public Relations

achrysanthou@national.ca

416-797-8194

Youth litigants in the court challenge include:

  • Amelia Penney-Crocker, aged 16, Halifax, NS
  • Parker Boot-Quackenbush, aged 16, London, ON
  • Khadijat Folasayo Dairo, aged 16, Fort McMurray, AB
  • Catherine He, aged 16, Angus, ON
  • Tharan D’Silva, aged 12, Richmond, ON
  • Katie Yu, aged 15, Iqaluit, NU
  • Diego Christiansen-Barker, aged 17, Campbell River, BC
  • Lachlan Brown, aged 18, Halifax, NS
  • Zoey Purves, aged 17, Ottawa, ON
  • Jacob Colatosti, aged 16, Hamilton, ON
  • Milan Rozotto-Lagos, aged 13, Saskatoon, SK
  • Oswaldo Paz Flores, aged 16, Montreal, QC
  • Lauren Handley, aged 18, Peterborough, ON

Legal Counsel:

  • Cheryl Milne, Executive Director of the David Asper Centre for Constitutional Rights at the University of Toronto
  • Mary Birdsell, Executive Director, Justice for Children and Youth
  • Emily Chan, Staff Lawyer, Justice For Children & Youth

 

R v Chouhan: The Supreme Court of Canada finds room for disagreement

Posted on by Student

 

By Wei Yang

On June 25, 2021, the Supreme Court of Canada (SCC) released its reasons for judgement in R v Chouhan,1 a case that the Asper Centre intervened in last year.

Background

Mr Chouhan was charged with first-degree murder and was thus entitled to a trial by jury. His trial date was scheduled for September 19, 2019, the same day that legislation eliminating peremptory challenges and substituting the trial judge as the trier for challenges for cause took effect.2 Prior to the new law, a limited number of peremptory challenges were available for both the accused and the Crown to dismiss potential jurors without cause.3 Challenges for cause used to be heard by lay triers instead of the trial judge.4

The federal government introduced this legislation in response to the trial of Gerald Stanley, who was charged with murder in the death of Colten Boushie, an Indigenous man. Mr Stanley was acquitted by a jury composed of zero Indigenous persons – a result of Mr Stanley’s peremptory challenges against five Indigenous prospective jurors.5

Mr Chouhan argued before his trial that the elimination of peremptory challenges violated his ss. 7, 11(d), and 11(f) Charter rights.6 If the amendments were constitutional, Mr Chouhan argued that they applied prospectively and not to his trial.7 The trial judge determined that there were other sufficient jury selection protections and the amendments were purely procedural.8 Therefore, the law was constitutional and applied to all trials after entering into force, including Mr Chouhan’s; neither party was entitled to peremptorily challenge any prospective jurors. Mr Chouhan was convicted.

At appeal, the Court of Appeal for Ontario rejected Mr Chouhan’s constitutional arguments, echoing the trial judge’s finding that other jury-related protections such as representative jury rolls, judicial excusals, and challenges for cause sufficiently preserved Mr Chouhan’s ss. 11(d) and 11(f) rights.9 However, the Court of Appeal held that his substantive right to peremptory challenges was nevertheless affected.10 Therefore, the amendments applied prospectively and Mr Chouhan was entitled to peremptory challenges.11

At the Supreme Court of Canada

The Crown appealed on the temporal applicability issue and Mr Chouhan cross-appealed on the constitutional question.12 The Supreme Court of Canada released its decision from the bench: Wagner CJ declared that a majority of the Court believed that the amendments were constitutional and purely procedural. The appeal was allowed, the cross-appeal was dismissed, and the conviction was restored.

The SCC released its divided reasons eight months later. Writing the joint reasons for judgement (alongside four other sets of reasons) Wagner CJ, Moldaver and Brown JJ held that s. 11(d) does not entitle anyone to a particular jury process.13 The question to be asked on a s. 11(d) challenge is “whether a reasonable person, fully informed of the circumstances, would consider that the new jury selection process gives rise to a reasonable apprehension of bias so as to deprive accused persons of a fair trial before an independent and impartial tribunal”, citing Valente v The Queen.14 They agreed with the lower courts that representative jury rolls, the randomness of jury selection, unlimited challenges for cause, and the judge’s power to excuse (or stand aside) prospective jurors protect the independence and impartiality of the tribunal and thus the amendments were constitutional.15 In addition, the changes were purely procedural and applied retrospectively.16 The justices found that abolishing peremptory challenges will likely increase the representativeness of the jury.17 The justices specifically noted, however, that jury diversity is not constitutionally required.18

Wagner CJ, Moldaver and Brown JJ proceeded to define the scope of the existing protections. First, trial judges should consider issuing jury charges and instructions to militate against unconscious bias.19 With challenges for cause, jurors should be asked relevant questions related to circumstances of the case and whether they can set aside compromising beliefs.20 However, the questions must respect juror privacy.21The judge can exercise their discretion to exclude prospective jurors since it is unlikely that individuals will openly admit to their biases.22 Judges can also stand aside prospective jurors if doing so would uphold public confidence.23

Karakatsanis, Martin and Kasirer JJ agreed with the final disposition and the need for robust jury instructions, but cautioned against Wagner CJ, Moldaver and Brown JJ’s description of the scope of the existing jury procedures.24 They opined that it should be left for the lower courts to decide how to interpret and apply the new amendments.25 In addition, one must not rely too heavily on the randomness of jury selection since random selection within an “unequal society” does not eliminate systemic bias.26

Rowe J, in another separate concurring opinion, agreed with the disposition but cautioned against interpreting this judgement as constitutionalizing these jury selection procedures.27 Interpreting these statutes as constitutional requirements would create the absurd consequence of eliminating Parliament’s ability to repeal their own laws, undermining the principle of parliamentary sovereignty.28

Abella J agreed that the amendments were constitutional but dissented on its temporal applicability. In opposition to Wagner CJ, Moldaver and Brown JJ’s more conservative approach, Justice Abella held that as long as judges “vigorously exercise their authority” by using their stand aside power to increase jury diversity and jurors are asked more probing questions when challenged for cause, the accused’s s. 11 rights are sufficiently protected.29 However, the abolition of peremptory challenges still affected a substantive right; the ability for an accused to participate in the empanelment of a jury they themselves view as representative and impartial is a substantive right even if it is not a constitutional one.30 The amendment, therefore, was not purely procedural and did not apply to Mr Chouhan’s trial.31

Côté J, in dissent, claimed Wagner CJ, Moldaver and Brown JJ attempted to create a new jury regime to disguise the fact that the existing one is inadequate.32 The abolition of peremptory challenges creates a gap in the system, violating Mr Chouhan’s s. 11(f) Charter right.33 Stand asides do not sufficiently preserve impartiality because they do not completely eliminate the possibility that the prospective juror will be empanelled.34 Jury rolls are not necessarily representative: when they are sourced from municipal assessment rolls, it prevents some Indigenous persons from being selected.35 Those who have committed certain provincial and criminal offences are also omitted from the jury roll, which excludes many Indigenous and Black persons who are disproportionally represented in the criminal justice system.36 Finally, without peremptory challenges, there is no assurance that jurors will share similar life experiences to the accused, affecting the common sense, competence, and fact finding ability of the jury.37 This infringement cannot be saved under s. 1 of the Charter: it is not rationally connected to the objective of combatting jury discrimination and promoting jury diversity, nor is it minimally impairing (peremptory challenges ought to have been regulated, not eliminated).38 In the alternative, the abolition applied prospectively.39

Implications

The Asper Centre is pleased to see that a majority of the Court shared our view that the amendments were constitutional. The majority of the Court also recognised the reality of unconscious bias, as we stated in our submissions, in addition to affirming the Asper Centre’s argument that peremptory challenges were only one component of a jury selection system that otherwise provides sufficient protections for an accused person.40 However, we recognize the differing views on peremptory challenges in relation to jury representativeness.

Nader Hasan, co-counsel for the Canadian Muslim Lawyers Association and the Federation of Asian Canadian Lawyers (and adjunct professor at UofT Law and Asper Centre’s Fall 2020 constitutional litigator-in-residence), who intervened to support Mr Chouhan’s cross-appeal, lauded Côté J’s dissent.41 Despite the Court’s disposition, Hasan noted that this decision will empower defence counsel to more aggressively challenge for cause prospective jurors.42

R v Chouhan continues the Supreme Court of Canada’s pattern of divided opinions.43 Although the judgements on the constitutional question and temporal applicability were relatively clear, this decision nevertheless produced five distinct sets of reasons, none of which represented a plurality or majority of the Court. This division likely reflects the diverse views on the effectiveness of peremptory challenges on jury representativeness, as demonstrated by the parties’ submissions. Ultimately, however, this outcome leaves Canadians and lower courts with a clear conclusion but without decisive directions.

Wei Yang is an incoming 2L JD student at the Faculty of Law and is currently one of the Asper Centre’s summer research assistants.

Footnotes:
1. R v Chouhan, 2021 SCC 26 [Chouhan].
2. Ibid at para 1, citing Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, 1st Sess, 42nd Leg, 2019, c 25.
3. Chouhan, supra note 1 at paras 10, 13.
4. Ibid at para 27.
5. Ibid at para 41.
6. Ibid at para 3.
7. Ibid.
8. Ibid at para 4.
9. Ibid at paras 6, 35.
10. Ibid at para 6.
11. Ibid.
12. Ibid at para 7.
13. Ibid at para 31.
14. Ibid, citing Valente v The Queen, [1985] 2 SCR 673, 1985 CanLII 25.
15. Ibid at paras 33–36.
16. Ibid at para 90.
17. Ibid at para 41.
18. Ibid at paras 43, 74 (citing Abella J at para 164), 79.
19. Ibid at para 49.
20. Ibid at para 64.
21. Ibid at para 66.
22. Ibid at para 67.
23. Ibid at paras 70–71.
24. Ibid at paras 109–111.
25. Ibid at paras 111–112.
26. Ibid at para 114.
27. Ibid at para 126.
28. Ibid at paras 141–142.
29. Ibid at paras 159–161, 165.
30. Ibid at paras 167, 189, 194, 204–205.
31. Ibid at paras 165, 220.
32. Ibid at para 267.
33. Ibid at paras 260, 267.
34. Ibid at para 269.
35. Ibid at para 272.
36. Ibid.
37. Ibid at paras 275–277.
38. Ibid at paras 288–291.
39. Ibid at para 293.
40. Ibid (Asper Centre’s factum at paras 2, 3, 20).
41. Nader Hasan, “The Côté J dissent in #Chouhan is [three consecutive fire emojis]. The lead decision, on the other hand, suggests that we can deal with potentially racist jurors with a mid-trial instruction ‘don’t be racist’. [Quote Tweet]” (25 June 2021 at 11:10), online: Twitter <https://twitter.com/Nader_Hasan_law/status/1408442578501001216>.
42. Nader Hasan, “On the plus side, the Chouhan decision as a whole is a clarion call to defence counsel to be aggressive with their challenge-for-cause and stand-aside applications. There is at least some recognition that an important tool has been lost with the abolition of peremptory challenges [Reply Tweet]” (25 June 2021 at 11:10), online: Twitter <https://twitter.com/Nader_Hasan_law/status/1408442579977490435>.
43. Cristin Schmitz, “Supreme Court of Canada Hits Record Low 40% Unanimity Rate in 2019; Many Appeals Came from Quebec” (20 January 2020), online: The Lawyer’s Daily <https://www.thelawyersdaily.ca/articles/17529/supreme-court-of-canada-hits-record-low-40-unanimity-rate-in-2019-many-appeals-came-from-quebec> (last modified 21 January 2020).

LEAF and the Asper Centre welcome the Ontario Court of Appeal’s Decision in R. v. Sharma

Posted on by Student

 

A majority of the Ontario Court of Appeal has struck down Criminal Code provisions which made conditional sentences unavailable for certain offences. The ruling comes in response to Cheyenne Sharma’s constitutional challenge to these provisions, and explicitly acknowledges and draws on the arguments and information provided by LEAF and the Asper Centre in their joint intervention.

Ms. Sharma – a young Indigenous woman, an intergenerational residential school survivor, and a single mother – faced financial hardship and potential eviction for her and her young daughter. She acted as a drug courier, importing 2 kg of cocaine into Canada, and then pleaded guilty to importing drugs.

As an Indigenous person, Ms. Sharma is entitled to the use of the Gladue framework. The Gladue framework is an individualized approach to sentencing that requires judges to consider the impact of systemic factors such as intergenerational trauma of residential schools and the harms of colonial oppression, and to consider alternatives to incarceration when sentencing Indigenous offenders. These options include conditional sentences, a community-based alternative to a custodial sentence.

However, 2012 amendments to the Criminal Code made conditional sentences unavailable for offences with a maximum penalty of 14 years or life in prison, and for offences involving the import, export, trafficking, or production of drugs, with a maximum penalty of 10 years in prison. As a result, Ms. Sharma was not eligible for a conditional sentence. Ms. Sharma argued that the provisions violated her rights under section 15 of the Charter, but the trial judge did not accept these arguments and imposed a custodial sentence.

LEAF and the Asper Centre intervened before the Ontario Court of Appeal to argue that the constitutionality of the provisions needed to be assessed in the context of systemic discrimination against Indigenous people, especially Indigenous women, in the administration of criminal justice.

This discrimination is clearly evident in the overwhelming overincarceration of Indigenous people, particularly Indigenous women, in Canada. In 2017/2018, Indigenous persons represented approximately four percent of the adult population in Canada, but accounted for 30 percent of admissions to provincial or territorial custody, and 28 percent of admissions to federal custody. The crisis of overincarceration has worsened over time. Between 2007/2008 and 2017/2018, for example, the number of admissions of Indigenous women to provincial/territorial custody increased by 66 percent.

The majority’s decision means that conditional sentences will now be an available option for trial judges to consider in sentencing Indigenous offenders for a wide variety of offences, provided other requirements are also met (including that the sentence is less than two years, and serving the sentence in the community will not endanger the community).

Ms. Sharma will not get to see the direct benefit of her victory, having already served her jail sentence before the appeal. The decision, however, will help to ensure that, moving forward, Indigenous offenders receive the benefit of the different approach to sentencing enshrined in the Gladue framework. It will also serve as a small step towards reducing the overincarceration of Indigenous people and in particular Indigenous women.

The majority’s decision represents an important articulation of substantive equality under section 15 of the Charter. Section 15, despite its potential for advancing equality, remains complex and under-applied. The majority’s analysis provides a clear example of how to apply section 15 where an applicant argues that a law appearing neutral on its face is discriminatory in its effect – and illustrates the potential of section 15 to be used as tool for addressing the overincarceration of Indigenous people, and Indigenous women in particular.

“We are extremely pleased with the decision in R. v. Sharma,” said Cheryl Milne, Executive Director of the David Asper Centre for Constitutional Rights. “The Court’s decision affirms our position that substantive equality requires a different approach to criminal justice for Indigenous people. Allowing judges to consider conditional sentences in these cases should help contribute, incrementally, to reducing the overincarceration of Indigenous people.”

“This decision is a breakthrough in how courts think about section 15 of the Charter and criminal law, and affirms the substantive equality rights of Indigenous women in the criminal justice context.” said Megan Stephens, Executive Director and General Counsel of LEAF. “The majority decision is remarkable for both its analytical rigor and its compassion concerning the devastating consequences of the overincarceration of Indigenous women, and the ongoing intergenerational harms to Indigenous women caused by colonialism, sexism, and racism.”

Case Committee and Counsel

LEAF and the Asper Centre’s arguments were informed and supported by a case committee composed of academics and practitioners with expertise in the relevant issues. The committee members for this intervention are (in alphabetical order): Emma Cunliffe (Allard School of Law, University of British Columbia), Gillian Balfour (Department of Sociology, Trent University), Martha Shaffer (University of Toronto Faculty of Law), Mary Eberts OC, Naiomi Metallic (Schulich School of Law, Dalhousie University), Rakhi Ruparelia (Faculty of Law – Common Law Section, University of Ottawa), and Renée Pelletier (Olthius Kleer Townshend LLP).

We are grateful to pro bono counsel Adriel Weaver and Jessica Orkin of Goldblatt Partners LLP, who acted for LEAF and the Asper Centre in this important case.

About Women’s Legal Education and Action Fund (LEAF)

The Women’s Legal Education and Action Fund (LEAF) works to advance the substantive equality rights of women and girls through litigation, law reform, and public education. Since 1985, we have intervened in landmark cases that have advanced equality in Canada—helping to prevent violence, eliminate discrimination in the workplace, provide better maternity benefits, ensure a right to pay equity, and allow access to reproductive freedoms.

To support our work to protect the equality rights of women and girls, please consider donating today.

About David Asper Centre

The David Asper Centre for Constitutional Rights is devoted to realizing constitutional rights through advocacy, research and education. The Centre aims to play a vital role in articulating Canada’s constitutional vision to the broader world. The cornerstone of the Centre is a legal clinic that brings together students, faculty and members of the bar to work on significant constitutional cases and advocacy initiatives. The Centre was established through a generous gift from U of T law alumnus David Asper (LLM ’07). For more information please visit www.aspercentre.ca.

For media inquiries, contact:

Megan Stephens, Executive Director & General Counsel
Women’s Legal Education and Action Fund (LEAF)
T: 416-317-4440
E: m.stephens@leaf.ca

Cheryl Milne, Director
The David Asper Centre for Constitutional Rights
T: 416-540-7619
E: cheryl.milne@utoronto.ca

Supreme Court of Canada Affirms Asper Centre’s Position on Charter Damages 

Posted on by Student

The Supreme Court of Canada heard this appeal in Treaty One Territory (Winnipeg, Manitoba). This was the Court’s first time sitting outside of Ottawa. 

by Amy Chen

On June 12, 2020, the Supreme Court of Canada released its judgment on Conseil scolaire francophone de la Colombie-Britannique v. British Columbia. The primary issue was whether the Province of British Columbia  failed to adequately fund its French-language school board, therefore violating the board’s  s. 23 minority-language Charter rights. The secondary issue was whether the Province owed the school board damages for said violations under s. 24(1) of the Charter. The Asper Centre’s intervention focused on the scope of the government’s qualified immunity from Charter damages. The SCC affirmed the Asper Centre’s position – the government may only have qualified immunity from Charter damages if its actions are authorized by statute, not policy.

Background

The Conseil scolaire francophone de la Colombie‑Britannique (“CSF”) is the only French‑language school board in British Columbia. It submitted multiple s. 23 Charter claims against the Province, including, among other things, the Province freezing its funding for school transportation. The CSF sought a significant amount of damages under s. 24(1) of the Charter.

Damages may be awarded under s. 24(1) for a Charter breach where it is “appropriate and just” from the perspective of the claimant and the state (Vancouver (City) v. Ward [Ward]). The government may use its qualified immunity to oppose a damages award if it can prove that there are concerns of “good governance” or that alternate remedies are available. This qualified immunity was first established in Mackin v. New Brunswick [Mackin]: “absent conduct that is clearly wrong, in bad faith or an abuse of power, the courts will not award damages for the harm suffered as a result of the mere enactment or application of a law that is subsequently declared to be unconstitutional”. The immunity allows public officials to carry out their duties without fear of liability, in the event that the statute is later struck down (Ward).

The trial judge found that the Province’s freeze on transportation funding constituted an infringement of s. 23, and awarded CSF $6 million in damages. She concluded that the Province was not immune to damages in this case, as she did not foresee any chilling effects to good governance or government decision-making.

On appeal, the British Columbia Court of Appeal (BCCA) set aside the $6 million remedy, endorsing a broader reading of Mackin. A government can utilize its qualified immunity when fulfilling its legislative or policy-making function, excepting any conduct found to be “clearly wrong, in bad faith or an abuse of power”. The BCCA found precedent for this interpretation in the 2006 Ontario Court of Appeal case Wynberg v Ontario [Wynberg], which rejected a distinction between legislative and policy-making functions regarding the Mackin immunity. The trial judge was found to be in error for considering chilling effects and “overriding” the Province’s qualified immunity in the present case. The Province acted in good faith pursuant to policy, and therefore the CSF was not entitled to any damages.

The Asper Centre’s Position

The Asper Centre, as represented by Professor Kent Roach and Anisha Visvanatha (Norton Rose Fulbright Canada), opposed the BCCA’s extension of the scope of qualified immunity. In its factum, the Asper Centre stated that the BCCA erred in considering Wynberg, an outdated case that ignored the distinctions between s. 24(1) of the Charter and s. 52(1) of the Constitutional Act, 1982. Ward clearly limited the scope of the government’s qualified immunity to government actions taken under statutes, an approach which is principled, democratic, and based on the rule of law.

The Asper Centre further argued that an extension of the qualified immunity would place an unfair burden on Charter claimants. After establishing the existence of a Charter violation and a functional need for damages, claimants would still have to prove that the government acted in bad faith. Meanwhile, the government would have an incentive to argue that its impugned actions were authorized by policy. Since the definition of “policy” is so vague, excessive amounts of preliminary litigation would likely be required to determine the nature of the government action. Overall, an extension of the qualified immunity would restrict access to justice and access to remedies. It would place a significant evidentiary and financial burden on Charter claimants.

The Supreme Court Judgment

The Supreme Court held that the Province unjustifiably breached CSF’s s. 23 Charter rights in two instances: first, when they  denied CSF adequate funding for school transportation; second, when they denied  CSF an Annual Facilities Grant. The lower courts interpreted s. 23 too narrowly, without fully considering the section’s remedial purpose.

While a significant portion of the judgment concerned the interpretation of s. 23, the Majority adopted all of the Asper Centre’s arguments concerning remedies. They recognized that Ward was the appropriate authority and that the qualified immunity should only apply to state actions authorized by legislation. They agreed that it was appropriate for government immunity to apply “in respect of a well-defined instrument such as a law”, but not in respect of “undefined instruments with unclear limits, such as government policies”. It was also recognized that the extension would allow the government to avoid liability by claiming that their unlawful actions were authorized by policy, which would in turn restrict access to justice. The Majority restored the $6 million remedy and added a further $1.1 million remedy for the second s. 23 breach.

The Dissent stated that there was no principled basis to limit the application of Mackin to legislation. The question to be asked is not what the vehicle of state action was, but under what circumstances should the state be liable for damages. As Professor Roach comments, the dissent’s approach would still allow the government to insulate themselves from damages by claiming that their actions were authorized by policy.

Overall, Professor Roach is very satisfied with the outcome of this case. The Asper Centre has once again helped set a new precedent on Charter remedies and has provided significant input  at the Supreme Court level.

Amy (Jun) Chen is a 1L JD Candidate at the Faculty of Law and is the Asper Centre’s 2020 summer research assistant.