The Assembly of Manitoba Chiefs is disappointed with the majority of the Supreme Court of Canada’s decision in R. v. Sharma
November 5, 2022
Treaty One Territory, Manitoba
Treaty One Territory, Manitoba – The Assembly of Manitoba Chiefs (AMC) is disappointed with the decision of the Supreme Court of Canada released on November 4, 2022, in R v Sharma, which allowed Canada’s appeal and restored the sentence of Ms. Sharma, which she has already served.
In 2015, Ms. Sharma, a woman of Ojibwa ancestry and a citizen of the Saugeen First Nation was charged with trafficking cocaine. At the time, she was a twenty-year-old mother, and the prospect of homelessness for her child motivated her to agree to import drugs for her boyfriend. Ms. Sharma sought a conditional sentence, which permits offenders to serve their sentences under strict surveillance in their communities, rather than in jail. However, in 2012, amendments to the Criminal Code added mandatory minimum sentencing provisions and removed the availability of conditional sentences for certain offences, including the one Ms. Sharma was charged with. Ms. Sharma brought a Charter challenge against the restriction on conditional sentencing.
The majority of the Supreme Court found that the challenged provisions of the Criminal Code are constitutional and do not limit Ms. Sharma’s Charter rights. In making its decision, the Supreme Court found that Ms. Sharma did not demonstrate that these provisions of the Criminal Code created or contributed to a disproportionate impact on Indigenous offenders relative to non-Indigenous offenders, nor do they limit Ms. Sharma’s s. 7. Charter rights.
A four-panel minority of the Supreme Court of Canada would have declared the limitations on conditional sentencing unconstitutional. The minority would have found that the challenged provisions deny offenders a sentencing option that better accords with First Nations’ visions of justice and removes the tool to craft a fair sentence, which perpetuates cultural loss, dislocation and societal fragmentation for First Nations.
The AMC, represented by Carly Fox of Fox Fraser LLP, participated as an intervener at the hearing of this matter on March 23, 2022. The AMC argued that the removal of conditional sentencing perpetuates the discrimination faced by First Nations and their citizens and removes an important means of giving effect to Gladue principles. The AMC’s position is that the consideration of Gladue principles is one of the limited ways that the Canadian justice system considers First Nations laws and perspectives as First Nations pursue the restoration and revitalization of their own justice systems, jurisdictions and laws.
The minority decision aligned with the AMC’s submissions and cited the AMC’s submissions for the principle that “many Indigenous approaches to sentencing often share common principles, including community healing, reconciliation and the reintegration of the offender.”
Grand Chief Cathy Merrick stated, “there is an ongoing justice crisis affecting First Nations citizens in Manitoba, particularly with regard to the over-incarceration of First Nations offenders. This crisis is directly related to the ongoing destructive impacts of colonization. In this case, the Supreme Court of Canada had the opportunity to engage with First Nations laws and perspectives on justice to inform the sentencing of First Nations citizens but has failed to do so and instead has focused on consistency by upholding maximum sentences. The majority’s decision reflects how imperative it is to establish First Nations justice systems, as the Canadian justice system consistently fails First Nations citizens and ignores First Nations laws. The AMC, as directed by the Chiefs-in-Assembly at the recent Assembly, will be focusing on the revitalization of First Nations laws and justice systems as part of First Nations’ inherent right to self-determination.