Substantive equality in sentencing: Interventions in R v Morris and R v Sharma

By Teodora Pasca

This fall, the Asper Centre is intervening in two cases before the Ontario Court of Appeal (ONCA) whose outcomes could significantly impact the province’s approach to sentencing marginalized people.

In R v Morris, the ONCA will consider the appropriate manner in which systemic factors should shape the sentencing framework for Black Canadians. Morris was convicted of possession of illegal firearms and received a sentence of 12 months, reduced from 15 months for Charter breaches. Among other factors, the sentencing judge was mindful of the social context in which Morris committed the offence with reference to reports from psychologists and social scientists with expertise on Black racism in Canada.

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

Despite the Supreme Court’s aspirations in Gladue, Indigenous people in Canada continue to be criminalized and incarcerated at alarming rates. In particular, the overrepresentation of Indigenous women in prisons has increased substantially over the past 10 years. The criminal justice system in Canada is designed in a manner incompatible with Indigenous laws and conceptions of justice, which can be deeply alienating.

Though their historical circumstances are different, Black Canadians also experience significant systemic discrimination and bias when dealing with police, in the courts, and in corrections. Nationally, the rate of incarceration for Black Canadians is three times greater than their representation in the overall population, and the overrepresentation is even more pronounced for Black women.

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

Since the Gladue decision came down in 1999, courts have been constitutionally mandated to consider the role that historical disadvantage, discrimination, and alienation play in cases involving Indigenous offenders. More broadly, the principle of restraint in s 718.2(e) of the Criminal Code requires courts to consider all sanctions other than imprisonment that are reasonable in the circumstances; though it is particularly vital for Indigenous people, this provision applies to all offenders in all cases.

It is settled that systemic factors such as historical disadvantage can be considered in sentencing cases involving Black Canadians. The question is how. The Crown’s position in Morris is that contextual factors should be considered only if the offender can establish a causal link between those factors and the offence. The Supreme Court in R v Ipeelee previously rejected the “causal link” requirement in the context of Indigenous sentencing. The Asper Centre argues it is unfair to ask marginalized people to demonstrate their life circumstances “caused” their crime — a burden even experts struggle to meet — and has put forward more robust guidelines for considering these factors that is informed by substantive equality principles.

In Sharma, conversely, the ONCA will consider whether eliminating conditional sentences for certain offences is incompatible with the Gladue framework. The potentially discriminatory effect of ss 742.1(c) and (e)(ii) is to deprive Indigenous people of a reasonable alternative to jail, despite the firm conclusions in Gladue and Ipeelee that alternatives to imprisonment must be prioritized. Asper and LEAF argue that the constitutionality of the provisions must be assessed in light of systemic discrimination against Indigenous people — especially Indigenous women, who are alarmingly over-represented both as offenders and as victims. Alternatives to incarceration are particularly essential when the system criminalizes acts that Indigenous women often turn to for survival, due to factors such as high levels of poverty, food insecurity, and overcrowded housing, as well as extremely high rates of physical and sexual abuse.

Collectively, Morris and Sharma acknowledge that consideration of historical and social context can be invaluable to the sentencing process for marginalized people. Requiring sentencing judges to at least turn their mind to these factors allows them to make a more informed decision about what is best for the individual and for society looking forward. While imposing a “fit” sentence is already the goal of sentencing, requiring that substantive equality shapes the analysis can make that goal a reality.

The Asper Centre’s intervener facta can be found at this linkSharma will be argued on November 20 and Morris will be argued TBD.

Teodora Pasca is a 2L JD Student at the Faculty of Law

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

City of Toronto v. Attorney General of Ontario et al

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

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

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

R v. Sharma

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

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

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

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

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

R v. Morris

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

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

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

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

R v Bird: Do Not “Breach First, Challenge Later”

by Sahil Kesar

Spencer Bird (“Bird”), a long-term offender, was charged with breaching the conditions of a community supervision order prescribed by the Parole Board. At the criminal proceeding, he sought to use the defence that the order which imposed his parole conditions was unconstitutional as they violated Section 7 of the Charter. He argued that the condition that he reside in a facility that was designated a penitentiary for the community portion of his sentence breached his right to liberty. At trial, Bird was successful only to have the decision overturned and to be convicted on appeal on the basis that he could not collaterally attack the parole condition in this manner. The Supreme Court of Canada (“SCC”) drew upon the doctrine of collateral attack based on the approach developed in R v Consolidated Maybrun Mines Ltd and R v Al Klippert Ltd to determine its applicability when the constitutionality of an administrative order is challenged collaterally, rather than appealed or judicially reviewed directly.

The majority dismissed the appeal on the basis that Bird was precluded from collaterally attacking the long-term supervision order (“LTSO”) prescribed by the Parole Board. Analyzing the factors of the Maybrun framework, Moldaver J determined that Parliament could not have intended to let offenders “breach first” and “challenge later” the LTSO conditions imposed on them by the Parole Board. Further, the availability of other options for Bird to pursue his constitutional rights favoured not allowing the collateral attack especially since Parliament intended to defer to the judgment of the Parole Board, given the wording of the legislative scheme. Moldaver J did find, however, that the final factor of the Maybrun framework favoured allowing the collateral attack; however, after weighing all the factors of the Maybrun framework, Moldaver J concluded that Parliament did not intend to have LTSO conditions collaterally attacked in the case at hand and dismissed the appeal.

Martin J, in a concurring opinion, also dismissed the appeal but on the basis that the LTSO conditions did not violate the Charter, concluding that Bird could collaterally attack the LTSO conditions imposed by the Parole Board in his defence. Martin J differed in her approach to the factors enumerated in the Maybrun framework. She was of the view that allowing a collateral attack does not amount to a “breach first, challenge later” approach since breaching LTSO conditions is not a strategic plan, especially since it could potentially lead to an additional 10-year sentence. Martin J also found that none of the options listed by the majority, which Bird could have sought instead of breaching his LTSO conditions, were adequate and intended by Parliament to use in this specific legislative scheme, particularly habeas corpus. She also found that the fifth factor weighed in favour of allowing the collateral attack.

Looking at the Charter arguments, Martin J dismissed the Section 9 and 11 arguments on the basis that this was not an exceptional case where she should hear Charter arguments not previously raised. On the Section 7 argument, Martin J disagreed with Bird’s arguments that the residency condition imposed on him was arbitrary. She found that the broad definition of penitentiary does not amount to him being forced to serve an arbitrary extension of his carceral sentence. She also found that the distinctions between other parolees and long-term offenders do not indicate that long-term offenders were not to be housed where Bird was being forced to reside. Ultimately, Bird’s residency condition was within the ability of the Parole Board to impose and was based on his particular circumstances.

The Asper Centre intervened in this appeal. The Centre made four submissions:

  1. First, the Asper Centre’s sought to have constitutional considerations made explicit in the Maybrun This was based on two assertions. First, Maybrun was not a constitutional case but the jurisprudence it drew on provided for the balancing of legislative intent against constitutional considerations. Particularly, the US jurisprudence points towards the idea that courts should not ignore a defendant’s constitutional rights or the practical availability of prescribed remedies when deciding whether to permit a collateral attack on an administrative order. Second, the Maybrun framework implicitly permits constitutional considerations. Since the framework is intended to protect the rule of law by determining the legislature’s intended forum for relief, it must do so in a way that encourages compliance with the constitution because the principle of constitutionalism requires state action to comply with the constitution. Divorcing Charter rights from the Maybrun framework creates a perverse situation where an administrative decision is neither rooted in law nor constitutionally compliant.
  2. Second, the Asper Centre sought to have the repute of the administration of justice included as an enumerated factor under the Maybrun Denying a collateral attack when Charter rights are at stake would bring the administration of justice into disrepute, as shown in certain other examples.
  3. Third, with emphasis on seeking judicial review in Federal Court, the Asper Centre sought to have access to justice considered in the Maybrun Judicial review in Federal Court is not timely or accessible for three reasons: 1) the requirement to exhaust complex and ineffective internal reviews; 2) the difficulty in obtaining deadline extensions in Federal Court; and 3) the protracted time period required to obtain judicial review.
  4. Fourth, allowing collateral attacks does not prejudice the Crown. There is no impact on the standard of review. The Crown asserted that allowing the collateral attack would distort the standard of review since constitutional questions would be considered under correctness instead of reasonableness. However, reasonableness would be applied under Dore, not correctness as they assert.

Moldaver J for the majority, asserted that the two principles that underlie the approach to collateral attacks on court orders are accounted for in the Maybrun framework for administrative orders. The framework adequately balances legislative intent with ensuring effective means for recourse to individuals challenging administrative orders. As such, this rejects the notion that constitutional considerations or the repute of the administration of justice (submissions one and two of the Asper Centre) need to be explicitly included since the framework already accounts for the rule of law and the repute of the administration of justice.

Moldaver J made reference to the Asper Centre’s third submission at paragraph 57. He accepted that there are realistic concerns over timeliness and accessibility of relief in Federal Court and that efficiency and timeliness are of greater importance when liberty is concerned. However, he held that Bird received notice of the Parole Board’s decision to impose residency conditions five months before his long-term supervision commenced, therefore giving him ample time to seek judicial review. Moldaver J stated that concerns about timeliness of judicial review was speculation and that Parliament might want to consider whether the procedures in place governing judicial review could be modified to provide more timely and accessible relief. However, he did not make access to justice a consideration in the Maybrun framework. Martin J, in her concurring opinion also accepted that Bird would have been unlikely to have the resources to secure counsel or self-represent himself for the purpose of navigating judicial review proceedings. She did consider the access to justice issues that this raises as the absence of an internal appeal process cannot mean Parliament intends individuals to navigate Federal Court.

Neither the majority nor the concurrence directly addressed the Asper Centre’s fourth submission.

Read the Asper Centre’s Factum in the Bird Appeal here.

Sahil Kesar is a 3L JD Candidate at the University of Toronto Faculty of Law and is currently the Asper Centre half-time Clinic student

Supreme Court Moves Voting Rights into Globalization Era in Frank Decision

by Jasmit de Saffel

In its first decision of the year, the Supreme Court of Canada sided with Canadian ex-pats in a case about their voting rights. Chief Justice Wagner held that “citizenship, not residence, defines our political community and underpins the right to vote” (para 35).

Frank v Canada had been initiated by two Canadians living in the United States after they were denied the right to vote in the 2011 federal election. Dr. Gill Frank and Mr. Jamie Duong live in the United States for work and educational purposes but maintain close ties to Canada. The impugned provisions of the Canada Elections Act held that citizens who had resided outside of Canada for more than five consecutive years were not able to vote in federal elections until they resumed residence in Canada. This provision was recently repealed by the government, and the Supreme Court decision has made the residence limitation on voting rights unconstitutional.

The application judge sided with the applicants in 2014, finding that the residence requirement infringes section 3 of the Charter and was not saved under section 1. On appeal to the Court of Appeal, the Attorney General of Canada conceded that the provision breached section 3 but argued that it was a justified infringement for the sake of the Canadian “social contract.” The appeal was allowed.

In his reasons Wagner CJ, writing for a 5-2 majority, emphasized that any intrusions on the core democratic right to vote must be reviewed on the basis of a stringent justification standard (para 25). He found that residence is not mentioned in the section 3 guarantee or established as essential to the right to vote in the jurisprudence. “The Charter tethers voting rights to citizenship, and citizenship alone” (para 29).

Under the section 1 analysis, Wagner CJ dismissed the Attorney General’s social contract argument as a vague and ill-suited objective to withstand the rigours of a section 1 justification. He quotes the Asper Centre’s factum in laying out the argument’s analytical failings, holding that using the social contract as an objective collapses any distinction between legislative means and ends (para 53).

The real downfall of the government’s case was at the minimal impairment stage. The Court held that the limit was over-inclusive and that no correlation had been shown between time lived abroad and subjective commitment to Canada. The Court held that we live in a globalized society and that the ability of citizens living abroad to remain connected to Canada is “unprecedented.” Non-residents, like the applicants, are able to maintain deep “political, familial, financial or cultural” roots in Canada (para 69). The limit was held to undermine, rather than promote, the underlying objective of electoral fairness in Canada. The Court found that our democracy is “manifestly strengthened” by the demonstration of civic commitment of Canadian citizens abroad voting via special ballot (para 75). Denying non-residing citizens the right to vote was understood as coming at the expense of their dignity and self-worth.

In a concurring judgement, Rowe J held that the residency requirement is not trivial and is firmly rooted in Canada’s representative democracy model (para 90). While finding that the limit on section 3 was not justified in this case, Rowe J held that the possibility of voting limits based on residence should not be entirely ruled out.

In their dissent, Cote and Brown JJ held that the decision is regressive and undoes a long-standing Westminster tradition of privileging local connections in electing local representatives.

Jasmit de Saffel  is a 1L JD Candidate at the Faculty of Law and is the current Asper Centre work-study student