Dr. Carmela Murdocca

The offender, who was 18 years old at the time of the offences, was sentenced for attempted murder, conspiracy to commit forcible confinement, unauthorized possession of a loaded firearm, possession of a firearm while prohibited, and trafficking in a controlled substance.

The court considered the offender's cognitive impairments, background of poverty, and harsh presentence custody conditions as mitigating factors against the serious aggravating factors of the offences, which included a home invasion and the use of a firearm.

Applying the totality principle, the court imposed a global sentence of 14 years, which was reduced to 8 years and 3 months after applying credit for presentence custody.

The Crown appealed from a Court of Appeal decision striking down Criminal Code provisions (ss. 742.1(c) and 742.1(e)(ii)) that made conditional sentences unavailable for certain serious offences, as applied to an Indigenous offender convicted of importing cocaine.

The majority (5-4) allowed the appeal, restoring the 18-month custodial sentence, holding that the respondent failed to satisfy step one of the s. 15(1) Charter analysis by not demonstrating that the impugned provisions created or contributed to a disproportionate impact on Indigenous offenders relative to non-Indigenous offenders.

The majority also held the provisions were not overbroad under s. 7 because maximum sentences are a reasonable proxy for offence seriousness.

The dissent would have dismissed the appeal, finding the provisions both overbroad under s. 7 and discriminatory against Indigenous offenders under s. 15(1) by impairing the remedial Gladue framework.

The appellant, a young Indigenous woman, pleaded guilty to importing cocaine.

The sentencing judge rejected her s. 15 Charter challenge to s. 742.1(c) of the Criminal Code, which precluded a conditional sentence for her offence, and imposed a 17-month custodial sentence.

On appeal, the appellant argued that s. 742.1(c) and (e)(ii) violated ss. 7 and 15 of the Charter.

The Court of Appeal allowed the appeal, finding that the provisions violated s. 15 by discriminating against Aboriginal offenders and s. 7 by being overbroad.

The provisions were struck down, and a sentence of time served was substituted.