Removal of Judicial Discretion in the use of Conditional Sentences for Drug Offences
Author: Caylene Foley
This blog focuses on how, in this author’s opinion, section 15 of the Canadian Charter of Rights and Freedoms (Charter) is violated when one combines sections of the Controlled Drugs and Substances Act (CDSA) and sections of the Criminal Code of Canada (Code); specifically section 742.1(c) and section 742.1(ii)(e). This infringement is caused by the removal of conditional sentences as a sentencing option for Aboriginal offenders. The removal of judicial discretion in sentencing Aboriginal offenders limits the remedial purpose of section 718.2(e) of the Code, which was introduced to address the issue of over-incarceration of Aboriginal people in Canadian corrections facilities. Aboriginal offenders start from a place of disadvantage in the Canadian judicial system, which is further perpetuated by removing judicial discretion in Aboriginal sentencing options that are alternatives to incarceration.
Statutory Provisions and Their Meaning
The main statutory provisions referred to within this blog include section 5 (1) of the CDSA which states, “No person shall traffic in a substance included in Schedule I, II, III, IV or V or in any substance represented or held out by that person to be such a substance.” Section 718.2(e) of the Code mandates, “A court that imposes a sentence shall also take into consideration the following principles: all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.”
Section 742.1 provides: “If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if ….”
742.1(c) limits the use of a conditional sentence if the offence is prosecuted by way of indictment, for which the maximum term of imprisonment is fourteen years or life. Section 742.1(e)(ii) limits the use of conditional sentences if the offence is prosecuted by way of indictment, for which the maximum term of imprisonment is ten years and involved the import, export, trafficking, or production of drugs.
As well, section 15 of the Charter provides: “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.” Other statutory provisions mentioned in this blog are of secondary importance and are either cited in the cases discussed herein or are used for reference purposes.
Sharma and the Section 15 Charter Argument
This author uses the case of R v Sharma as an example of how a section 15 Charter violation can be found in the combined effect of the CDSA and the Code. In Sharma, the court found section 7 and 15 violations of the offender’s Charter rights. This blog focuses on the section 15 violation, not the section 7 violation, and focuses on section 5(1) of the CDSA instead of section 6.1 like Sharma does. Section 6.1 of the CDSA deals with the import and export of illegal drugs into and out of Canada. This blog focuses on section 5(1) of the CDSA, as trafficking encompasses a broader range of criminality; from one-time offenders and “dial-a-dealer” operations all the way up to large criminal drug organizations. Section 15 of the Charter is focused on in this blog, not only for brevity, but also because it is an area this author is passionate about. This author suggests that if the Supreme Court of Canada upholds the Sharma decision, it will be a step towards reconciliation; towards addressing some of the calls to action from the Truth and Reconciliation Commission from 2015. This will be discussed below in more detail.
On March 23, 2022, the Supreme Court of Canada will hear arguments in the appeal of R v Sharma from the Ontario Court of Appeal. The issue the Justices will be addressing is: does section 6.1 of the CDSA, when combined with section 742.1 (c) and section 742.1 (e)(ii) of the Code, violate section 7 and 15 of the Charter? This case was first heard in 2018 when Justice Hill of the Ontario Superior Court ruled that there was a violation under section 12 of the Charter, but did not find a violation of the offender’s rights under section 7 or 15.The offender appealed the decision to the Ontario Court of Appeal where a section 7 and section 15 violation were found and the Code provisions were struck down. The Ontario Court of Appeal’s decision has brought about what some are calling “Sharma” applications; said applications challenge the constitutionality of these Code provisions.
Using the appeal decision as a backdrop, this author argues that the combination of sections 742.1(c) and 742.1(e)(ii) of the Code and section 5(1) of the CDSA creates a violation under section 15 of the Charter when it comes to Aboriginal offenders in Canada. This combination of legislation removes the availability of a conditional sentence as a viable sentencing option, thereby undermining the remedial component of section 718.2(e). In summary, the combined impact of these sections is the severe curtailment of a tool that helps to address the overrepresentation of Aboriginal people in Canadian jails.
Section 718.2(e) was added to the Code in 1996 as a remedial provision aimed at alleviating Aboriginal over-incarceration through sentencing. This provision was interpreted first in Gladue, followed by Wells, and then again in 2012 in Ipeelee.This section of the Code asks sentencing judges to look at all reasonable alternatives to incarceration with special consideration to Aboriginal people. This provision of the Code is not a race-based discount, but instead asks judges to look at the unique circumstances of Aboriginal people and the effects that colonization has played in bringing Aboriginal offenders into the justice system. The government-run program of Residential Schools (part of colonization) has had detrimental, lasting effects on Aboriginal people such as lower education, poverty, substance abuse, loss of culture and identity, and the breakdown of the family unit.
The amendments to the Code in 1996 included the addition of conditional sentences. A conditional sentence is an imprisonment sentence that is served outside of jail under strict, jail-like conditions. Conditional sentences recognize a unique mode of sentencing: they allow a sentencing judge to impose a sentence to fit the circumstances of the offender, which furthers the goals of denunciation, deterrence and also arguably rehabilitation. Prior to 2012 and the introduction of the Safe Streets and Communities Act (SSCA), a conditional sentence was available where there was no mandatory minimum, the sentence imposed was under two years, and serving the sentence in the community would not pose a danger to the community. When the SSCA was enacted, new rules were added to section 742.1 that restricted the use of conditional sentences for certain types of offences. In particular, there is no possibility of a conditional sentence if the offences are for a term of imprisonment where the maximum is 14 years or life (section 742.1(c)), or where the offence is prosecuted by way of indictment for which the maximum term of imprisonment is 10 years or more and involves the import, export, trafficking, or production of drugs (section 742.1(e)(ii)). The purpose of the Safe Streets and Communities Act has been considered by numerous courts; the Saskatchewan Court of Appeal in R v Neary identified four broad purposes of the Act:
(a) providing consistency and clarity to the sentencing regime;
(b) promoting public safety and security;
(c) establishing paramountcy of the secondary principles of denunciation and deterrence in sentencing for the identified offences;
(d) treating non-violent serious offences as serious offences for sentencing purposes.
All the purposes outlined above, with specific attention to denunciation and deterrence, can be met with a sentence other than incarceration. The combined effect of section 5(1) of the CDSA and section 742.1 (c) or 742.1(e)(ii) of the Code is to remove the sentencing judge’s ability to construct a sentence which is fit and proper given the offence itself, the facts of the offence, and the offender’s background. Removing discretion in sentencing has the effect of putting all drug traffickers into the same category and does not take into account the specific facts of the offence, the unique circumstances of the individual, or the actual risk to the public.
These amendments removed judicial discretion in the sentencing process. They limited a judge’s ability to consider exceptional circumstances, cases where the offender’s moral culpability is relatively low due to Gladue factors, and mental disabilities. Cases that, prior to the amendments to s. 742.1, would have allowed for a conditional sentence are no longer eligible where sentencing objectives can be met by a community-based sentence. Removing judicial discretion of the use of conditional sentences further contributes to the over-representation of Aboriginal people in the Canadian justice system, which this author argues is a violation of section 15 (1) of the Charter.
Section 15 (1) of the Charter guarantees substantive equality.  Its focus is on “laws that draw distinctions that have the effect of perpetuating arbitrary disadvantage based on an individual’s membership in an enumerated or analogous group.” The amendments to the Code, on their face, apply equally to all offenders. However, it is the effect that creates the distinction for Aboriginal offenders. Aboriginal offenders within the Canadian criminal justice system start from a place of substantive inequality. By removing the option of conditional sentences, one of the means for addressing this inequality, a distinction is created between Aboriginal and non-Aboriginal offenders.” The effect of these provisions denies Aboriginal offenders equal benefit of the law by discriminating based on race; by removing a remedial sentencing provision and thus undermining section 718.2(e) of the Code. This removal has the effect of reinforcing, perpetuating, and exacerbating disadvantages of Indigenous people who are involved in the criminal justice system.
The purpose of section 718.2(e) and the addition of conditional sentences to the Criminal Code in 1996 was to address the issue of over-incarceration generally and, in particular, the overincarceration of Aboriginal offenders in Canada. The amendments to section 742.1 and the removal of conditional sentences based on offences that involve drugs or have a maximum sentence of 14 years or life reinforces and perpetuates the discriminatory effect that was intended to be alleviated by the remedial provision. Thus, there is perpetuation of the already-existing disadvantage suffered by Aboriginal offenders in being sentenced to jail more consistently than other offenders. It could be argued that suspended sentences are still an option for judges and that the amendments to the Code only remove one sentencing option. The error of this argument is that a suspended sentence is not available once incarceration has been decided, so the removal of a conditional sentence prevents the only sentencing option aside from incarceration when incarceration is the sentence.
In Sharma, the court stated at para 130:
The relationship between section 718.2(e) and 742.1 in the Criminal Code in sentencing is well established. The conditional sentence is a central tool given to sentencing judges to apply Gladue factors. By restricting the availability of the conditional sentence, the impugned amendments deprive the court an important means to redress systemic discrimination against Aboriginal people when considering an appropriate sanction. Section 742.1(e)(ii) of the Criminal Code undermines the purpose of the Gladue framework, exacerbating and perpetuating the discriminatory disadvantage of Aboriginal offenders in the sentencing process.
Sharma Cases Overview
This author argues that the reality of sections 742.1 (c) and 742.1(e)(ii) results in more Aboriginal offenders serving their sentence in jail rather than in the community. These sections deny the benefit of a conditional sentence in a manner that is contrary to section 15 of the Charter, as they remove a remedial sentencing option originally introduced to help address the over-representation of Aboriginal people in Canadian jails.
R v Sharma 2020 (Sharma) illustrated how the amendments to section 742.1 can lead to a violation of section 15 of the Charter for Aboriginal offenders in Canada who are charged with offences under the CDSA. Ms. Sharma is of Ojibwa ancestry; she had a daughter at the age of 17 and, by all accounts, had a hard life. Ms. Sharma imported 197.5 grams of cocaine into Canada from Surinam. She needed the money to pay for her rent so she and her young daughter would not be evicted. She was 20 years old at the time and had no criminal record. Ms. Sharma’s grandmother was a Residential School survivor, and it appears that her grandmother struggled as a result of her time in Residential Schools. Ms. Sharma was sexually assaulted when she was 13 years old; at the age of 15, she left home and started working as a sex worker. She came before the justice system already disadvantaged due to colonization and the attempted eradication of Aboriginal people in Canada through systems such as Residential Schools and the Sixties Scoop. Ms. Sharma made a decision out of desperation. Amendments to the Code meant she had to serve her sentence incarcerated away from her child, whereas prior to the amendments to the Code, she could have been eligible for a conditional sentence. In circumstances such as Ms. Sharma’s, is justice really served by sending someone to prison when they are not a danger to the community and their offence, while serious, is reduced due to their moral culpability?
When section 718.2(e) and section 742.1 of the Code were added, it was because Parliament recognized the significant problem of overrepresentation of Aboriginal people in prisons in Canada and enacted both a directive and a tool to address the problem. When the tool created was limited by SSCA, it created a violation of section 15 (1) of the Charter because it disproportionally affects Aboriginal offenders by removing one of the only sentencing options available outside of incarceration. It has often been the case that “neither Aboriginal offenders nor their communities are well served by incarcerating offenders.” Removal of an offender from the community is not part of Aboriginal justice concepts and goes against the idea of restorative justice. Incarceration is just another product of colonization and should be used as a last resort for all offenders, but with particular consideration for Aboriginal offenders and their lived experiences in Canada.
In Sharma 2020, the Ontario Court of Appeal found that the impugned provision, in its impact on Aboriginal offenders, creates a distinction based on race. Second, it was found that the provisions deny a benefit in a manner that has the effect of reinforcing, perpetuating, and exacerbating disadvantage to an Aboriginal person. On their face, the provisions treat everyone equally, but it is the effect that creates the distinction. This is due to the fact that Aboriginal people start from a place of substantive inequality in the criminal justice system, such as overincarceration; this inequality can be addressed by a conditional sentence. By removing this remedial sentencing option, the impact creates a distinction between Aboriginal and non-Aboriginal offenders based on race. The remedial provision was put in place to alleviate the discriminatory effect of other laws; its removal reinforces and perpetuates the discriminatory effect that was to be alleviated by the remedial provision. In Ms. Sharma’s case, had it not been for the addition of section 742.1 (c) and 742.1(ii)(e), she would have been a prime candidate for a conditional sentence. Expert evidence provided in the case discussed the effect of colonization on woman offenders and how aspects of Indigenous women’s social, economic, and cultural experiences often inform their participation in serious offences such as the drug trade. These crimes are often committed as crimes of survival and often under conditions of duress. The removal of conditional sentences in cases like Sharma disproportionally affects Indigenous women and, thus, it arguably infringes section 15 (1) of the Charter. The remedial purpose of section 718.2(e) within the Gladue framework asks sentencing judges to consider imposing a community-based sanction that also balances the sentencing objectives, but carries with it the added benefit of redressing the problem of overrepresentation of Aboriginal offenders in Canada’s prisons. It is the denial of this benefit that is at issue.
TRC Calls to Action
In 2015, the Truth and Reconciliation Commission of Canada (TRC) made 94 calls to action. Calls to action 25 to 42 are all directed towards reconciliation and justice. Call to action 30 asks that the federal, provincial, and territorial governments commit to eliminating the overrepresentation of Aboriginal people in custody over the next decade. Call to action 31 asks that sufficient and stable funding be provided for the implementation and evaluation of community sanctions; done in a manner that will provide realistic alternatives to imprisonment for Aboriginal offenders and respond to the underlying causes of offending. Call to action 32 asks for amendments to the Code that include the ability for sentencing judges to depart from mandatory minimum sentences and restrictions on conditional sentences. Finding that a combination of section 5(1) of the CDSA and sections 742.1(c) and 742.1(ii)(e) of the Code violates section 15 of the Charter could be a step on the path to reconciliation. The TRC came out in 2015; it is now 2022 and Aboriginal incarceration rates have not declined. In 2021, Aboriginal women represented almost 50% of all federally sentenced women in Canada, despite representing less than five percent of the total population of women in Canada. Aboriginal people make up 32% of the entire prison population. In the last 10 years, the overall Aboriginal inmate population has increased by 18.1%, while non-Aboriginal rates have dropped by 28.26%. The changes to the Code due to the SSCA were enacted in 2012; 10 years later, with a removal of conditional sentences for drug offences and offences that carry a minimum of 14 years or life, the number of Aboriginal people incarcerated has risen, while non-Aboriginal rates have decreased substantially. This author does not have statistical proof that the above phenomenon is because of the amendments to the Code, but it would be an interesting study to perform; to see if there is a correlation with the amendments and rising incarceration rates for Aboriginal people and to determine why rates are dropping for non-Aboriginal people. The TRC calls to action have not yet been implemented; however, the Supreme Court of Canada, when they decide R v Sharma, has the chance to walk the road towards reconciliation. This is a potential watershed moment.
In R v Heimbecker, the accused pled guilty to two counts of possession of cocaine for the purpose of trafficking. Ms. Heimbecker was 18 at the time of the offence; she is Aboriginal, had no criminal record, and is a mother to an infant son. When arrested, she had $730.00 worth of cocaine on her person. Originally, the Crown was seeking a three-year custodial sentence; however, the Crown’s position evolved to a joint recommendation for a 3-year suspended sentence.
The Crown submitted that this case presents a watershed moment -- a moment in which the Crown can walk the road to reconciliation with Indigenous people through a robust application of Gladue factors. The road to reconciliation is not easy to discern but it is clear on the case of Ms. Heimbecker. The time has come … to embark upon the journey to reconciliation.
This journey to reconciliation recognizes that there need not be a causal link between Aboriginal background and the commission of an offence. The harm that has been done to Aboriginal people trickles down through the generations and calls for a robust application of Gladue factors. Due to the unavailability of a conditional sentence, the Crown was left with only incarceration if a custodial sentence was wanted; once custody is on the table a suspended sentence is no longer an option. In Heimbecker, the Crown chose the path towards reconciliation but had to do so through a suspended sentence, which is usually only granted if there are exceptional circumstances. Not all Aboriginal offenders can establish such circumstances, given the exceptionally high bar.
The combination of parts of the CDSA with sections 742.1 (c) and 742.1(ii)(e) of the Code removes judicial discretion and removes the remedial purpose of section 718.2(e). This removal of the remedial options creates a violation of section 15 of the Charter for Aboriginal people in Canada. This is due to the fact that Aboriginal offenders in Canada start from a place of disadvantage, which is perpetuated by the removal of conditional sentences. It is the effect of this removal that creates the violation, not the law itself. The Canadian justice system is on a precipice where it can choose to walk the path towards reconciliation and start implementing the Calls to Action put forth by the TRC in 2015. This author feels that if Canadian Parliament and the Judiciary are truly committed to reconciliation, they will take action; the Supreme Court of Canada will uphold the Ontario Court of Appeals decision in Sharma and Parliament will make amendments to reinstate the more liberal use of conditional sentences for Aboriginal offenders.
 The author uses the term “Aboriginal” throughout the paper as this is the term used in the legislation. Aboriginal will be used for consistency instead of “Indigenous.”  Controlled Drug and Substances Act, SC 1996, c 19, s 5(1) [CDSA].  Criminal Code, RSC 1985, c C-46, s 718(2)(e) [CC].  Ibid, s 742(1)(c).  Ibid, s 742(1)(e)(ii).  Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982 c 11.  CDSA, supra note 2, s 6(1).  R v Sharma, 2018 ONSC 1141 [Sharma1].  R v Sharma, 2020 ONCA 478 [ Sharma2]; CC, supra note 3, ss 742(1)(c), 742(1)(e)(ii) were the provisions struck down on appeal. Leave to appeal at SCC heard on March 23, 2022.  Personal experience from submitting an application to the court and it being referred to by supervising lawyer and others as a Sharma application.  CC, supra note 3, s 718(2)(e).  Department of Justice, “Spotlight on Gladue: Challenges, Experiences, and Possibilities in Canada’s Criminal Justice System” (last modified 16 October 2018), online: Department of Justice <www.justice.gc.ca/rp-pr>.  R v Gladue,  1 SCR 688, 171 DLR (4th) 385 [Gladue].  R v Wells, 2000 SCC 10.  R v Ipeelee, 2012 SCC 13.  Ibid. Found at headnote and throughout the decision.  The Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Ottawa: Truth and Reconciliation Commission of Canada, 2015); “Calls to Action”, online (pdf): The Truth and Reconciliation Commission of Canada <trc.ca/assets/pdf/Calls_to_Action_English2.pdf> [TRCCA].  “Conditional sentences”, online: Canadian Criminal Justice Association <www.ccja-acjp.ca/positions>.  “Conditional sentence (House Arrest)”, online: Legal Aid Ontario <legalaid.on.ca/faq/conditional>.  CDSA, supra note 2, s 742(1).  Ibid.  Sharma2, supra note 9 at para 143; R v Neary, 2017 SKCA 29.  Sharma2, supra note 9 at para 143.  Charter, supra note 6, s 15(1).  Kahkewistahaw First Nation v Taypotat, 2015 2 SCR at para 18 [Taypotat]; see also Sharma2, supra note 9 at para 63.  Sharma2, supra note 9 at paras 69-71.  Ibid at para 67.  Ibid at paras 83, 85.  Ibid at para 130.  Ibid at para 6.  Ibid at para 12.  Ibid at para 10.  Ibid at para 33.  Gladue, supra note 13 at para 74.  Rupert Ross, Returning to the Teachings, (Toronto: Penguin Canada, 1996).  Sharma2, supra note 9 at para 67.  Ibid at para 69.  Ibid at para 70.  Ibid at para 83.  Ibid at para 88.  Ibid at paras 91-95.  Ibid at para 107.  TRCCA, supra note 17 at no 30.  Ibid at no 31.  Jacob Cardinal, “Report: Incarceration Rates For Canadians Drop While Indigenous Incarceration Rates Rise” (23 December 2021), online: Toronto Star <www.thestar.com/news/canada/2021/12/23/report-incarceration-rates-for-canadians-drop-while-indigenous-incarceration-rates-rise>.  Ibid.  R v Heimbecker, 2020 SKQB 304 at para 88.  Ibid at para 76.  R v Sharma, 2022 SCC (Factum of Appellant).