Her Majesty the Queen v. Sharma

[Indexed as: R. v. Sharma]

Ontario Reports

Court of Appeal for Ontario

K.N. Feldman, Gillese and Miller JJ.A.

July 24, 2020

152 O.R. (3d) 209 | 2020 ONCA 478

Case Summary

Charter of Rights and Freedoms — Appeals — Raising Charter issue first time on appeal — Aboriginal appellant pleading guilty to importing offence carrying a mandatory minimum sentence of two years' imprisonment — Crown not seeking mandatory minimum — Sentencing judge rejecting appellant's s. 15 Charter challenge and imposing 17 months' imprisonment — Appellant arguing breach of ss. 7 and 15 on appeal — In interests of justice to decide s. 7 issue on appeal — Impugned provisions struck down and sentence appeal allowed — Canadian Charter of Rights and Freedoms, ss. 7, 15 — Criminal Code, R.S.C. 1985, c. C-46, s. 742.1(c), (e) (ii).

Charter of Rights and Freedoms — Equality rights — Aboriginal peoples — Discrimination — Enumerated or analogous grounds — Aboriginal appellant pleading guilty to importing offence carrying a mandatory minimum sentence of two years' imprisonment — Crown not seeking mandatory minimum — Sentencing judge rejecting appellant's Charter challenge and imposing 17 months' imprisonment — Impugned sentencing provisions precluded imposition of conditional sentence, thereby increasing overincarceration of Aboriginal offenders and discriminating on basis of race and infringing on liberty rights by being overbroad — Provisions struck down and sentence appeal allowed — Canadian Charter of Rights and Freedoms, ss. 7, 15 — Criminal Code, R.S.C. 1985, c. C-46, s. 742.1(c), (e)(ii).

Charter of Rights and Freedoms — Fundamental justice — Overbreadth — Aboriginal appellant pleading guilty to importing offence carrying a mandatory minimum sentence of two years' imprisonment — Crown not seeking mandatory minimum — Sentencing judge rejecting appellant's Charter challenge and imposing 17 months' imprisonment — Impugned sentencing provisions precluded imposition of conditional sentence, thereby increasing overincarceration of Aboriginal offenders and discriminating on basis of race and infringing on liberty rights by being overbroad — Provisions struck down and sentence appeal allowed — Canadian Charter of Rights and Freedoms, ss. 7, 15 — Criminal Code, R.S.C. 1985, c. C-46, s. 742.1(c), (e)(ii).

Charter of Rights and Freedoms — Remedies — Declaration of invalidity — Sentence reduction — Aboriginal appellant pleading guilty to importing offence carrying a mandatory minimum sentence of two years' imprisonment — Crown not seeking mandatory minimum — Sentencing judge rejecting appellant's Charter challenge and imposing 17 months' imprisonment — Impugned sentencing provisions precluded imposition of conditional sentence, thereby increasing overincarceration of Aboriginal offenders and discriminating on basis of race and infringing on liberty rights by being overbroad — Provisions struck down and sentence appeal allowed — Canadian Charter of Rights and Freedoms, ss. 7, 15 — Criminal Code, R.S.C. 1985, c. C-46, s. 742.1(c), (e) (ii). [page210]

Criminal law — Sentencing — Aboriginal offenders — Conditional sentence — Importing narcotics — Aboriginal appellant pleading guilty to importing offence carrying a mandatory minimum sentence of two years' imprisonment — Crown not seeking mandatory minimum — Sentencing judge rejecting appellant's Charter challenge and imposing 17 months' imprisonment — Impugned sentencing provisions precluded imposition of conditional sentence, thereby increasing overincarceration of Aboriginal offenders and discriminating on basis of race and infringing on liberty rights by being overbroad — Provisions struck down and sentence appeal allowed — Canadian Charter of Rights and Freedoms, ss. 7, 15 — Criminal Code, R.S.C. 1985, c. C-46, s. 742.1(c), (e)(ii).

The appellant was a young Indigenous woman who pleaded guilty to importing two kilograms of cocaine, contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19. The offence carried a mandatory minimum sentence of two years' imprisonment. The Crown initially served notice that it intended to seek the mandatory minimum, but subsequently withdrew the notice and instead sought a sentence of 18 months in light of the personal hardship the appellant had endured. Notwithstanding the Crown's position, the sentencing judge heard the appellant's challenge under s. 12 of the Canadian Charter of Rights and Freedoms and struck down the mandatory minimum as cruel and unusual punishment. The appellant also challenged portions of s. 742.1 of the Criminal Code, which made conditional sentences unavailable for offenders convicted of certain categories of offence. That challenge initially was based on both ss. 7 and 15 of the Charter, but the s. 7 argument was withdrawn. The challenge was unsuccessful and the sentencing judge determined that an appropriate sentence was 18 months' imprisonment, reduced to 17 months to take account of the appellant's presentence detention and lengthy periods on bail. The appellant appealed her sentence on the ground that s. 742.1(c) and (e)(ii) of the Criminal Code were unconstitutional because they contravened s. 15 of the Charter because their effect was to discriminate against Aboriginal offenders on the basis of race, and infringed on her s. 7 liberty rights because they were overbroad and arbitrary.

Held, the appeal should be allowed.

Per K.N. Feldman and Gillese JJ.A.: The sentencing judge erred in his conclusion and analysis in rejecting the appellant's s. 15 argument. Under s. 742.1(c) and (e)(ii), sentencing judges were precluded from imposing a conditional sentence on an offender convicted of an offence prosecuted by indictment where the maximum term was 14 years or life, or an offence prosecuted by indictment involving the import, export, trafficking or production of drugs, where the maximum term was ten years. The appellant was affected by both preclusions. The impugned provisions created a distinction on an enumerated or analogous ground, being race. The distinction related to the overincarceration of Aboriginal offenders, not their overrepresentation in the criminal justice system. The impugned law had the effect of reinforcing, perpetuating, or exacerbating the disadvantage that the appellant faced as an indigenous person. The sentencing judge's reliance on the appellant's failure to lead statistical evidence to prove discriminatory impact constituted an error of law as well as a misapprehension of the available evidence on a critical issue. By restricting the availability of the conditional sentence, the impugned amendments deprived the court of an important means to redress systemic discrimination against Aboriginal people when considering an appropriate sanction. The impugned provisions denied the benefit of a conditional sentence in a manner that had the effect of reinforcing, perpetuating or exacerbating the disadvantage of Aboriginal offenders, and were therefore contrary to s. 15 of the Charter. [page211]

Although the s. 7 issue had not been argued in the court below, in the circumstances it was in the interest of the administration of justice for the issue to be decided on appeal. The effect of removing the conditional sentence option was not arbitrary because it coincided with Parliament's purpose in maintaining the integrity of the justice system by ensuring that offenders committing serious offences would receive jail sentences. However, the impugned provisions were overbroad. Parliament's chosen proxy for assessing the seriousness of an offence was its maximum sentence, but sentencing was not an abstract inquiry and could not be divorced from the circumstances of the commission of the crime. The impugned provisions were contrary to s. 7 of the Charter because they resulted in the deprivation of the appellant's liberty in a manner that was not in accordance with the principle of fundamental justice of overbreadth. There was no rational connection between their purpose and some of their effects.

The infringements were not justified under s. 1 of the Charter. With respect to the s. 7 breach, the Crown advanced no substantive arguments for justification. With respect to s. 15, even if the Crown could prove a pressing and substantial objective, the justification failed at the minimal impairment stage of the analysis. There was also no basis to find that the serious deleterious effects of the impugned provisions on Aboriginal people were outweighed by their salutary effect. The remedy was to strike down s. 742.1(c) and (e)(ii) of the Criminal Code with immediate effect and to set aside the sentence of 17 months' imprisonment. A conditional sentence of 24 months less a day should have been imposed, but since the appellant had served her custodial sentence, no further time was to be served.

Per B.W. Miller J.A. (dissenting): With respect to s. 15, the law created a distinction based on an enumerated or analogous ground, but it was not discriminatory. In legislating as it did, and accepting the side-effect that additional Aboriginal offenders would be incarcerated as a result, Parliament did not treat Aboriginal persons as undeserving of the concern, respect and consideration owed to all members of the political community. Parliament's reasoning was categorical: offenders who chose to engage in drug trafficking crimes -- whether they did so from circumstances of poverty or riches -- inflicted harm on their communities, seized advantages for themselves, and thus upset the balance of benefits and burdens in a way that could only be restored through a focus on deterrence and denunciation, and the imposition of the more extreme deprivation of liberty coming with incarceration. That policy rationale obtained irrespective of whether the offender was Aboriginal or a member of any other community in Canadian society. Parliament's legislative decision may have been harsh, or even mistaken or unwise, but it was not for any of those reasons discriminatory. With respect to s. 7, the legislation was neither arbitrary nor overbroad. The purpose of the impugned provisions was to ensure that offenders committing serious crimes receive fit sentences, deemed to include a period of incarceration. Parliament sought to make the law determinant by reference to offences punishable by maximum periods of incarceration of ten years and 14 years.

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Statutes referred to

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Competition Act, R.S.C. 1985, c. C-34

Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 6(1), (3)(a.1), 8

Corrections and Conditional Release Act, S.C. 1992, c. 20

Criminal Code, R.S.C. 1985, c. C-46, ss. 95 [as am.], 515(9.1), 718 [as am.], 718.1 [as am.], 718.2 [as am.], (b), (e) [as am.], 719(3.1) [as am.], 731(1), 732.1 [as am.], 732.2 [as am.], 742.1 [as am.], (b) [as am.], (c) [as am.], (e) [as am.], (ii), 742.3(1), (2) [as am.]

Immigration Act, 1976, S.C. 1976-77, c. 52 [rep.]

Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 36(1)(a)

Pay Equity Act, C.Q.L.R., c. E-12.001

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Youth Criminal Justice Act, S.C. 2002, c. 1

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Webber, Grégoire, "Rights and Persons" in G. Webber, et al., eds., Legislated Rights: Securing Human Rights through Legislation (Cambridge: Cambridge University Press, 2018)

APPEAL from the custodial sentence imposed by C. Hill J., sitting without a jury, [2018] O.J. No. 909, 44 C.R. (7th) 341, 2018 ONSC 1141 (S.C.J.).

Nader Hasan and Stephen Aylward, for appellant.

Kevin Wilson, for respondent.

Khalid Janmohamed and Robin Nobleman, for intervenors HIV & AIDS Legal Clinic Ontario and Canadian HIV/ AIDS Legal Network.

Jonathan Rudin and Emily R. Hill, for intervenor Aboriginal Legal Services Legal Clinic.

Adam Bond, for intervenor Native Women's Association of Canada.

Promise Holmes Skinner and Samara Secter, for intervenor the Criminal Lawyers' Association (Ontario).

Adriel Weaver and Jessica Orkin, for intervenors Women's Legal Education and Action Fund Inc. and the David Asper Centre for Constitutional rights.

K.N. FELDMAN J.A. (Gillese J.A. concurring): —

Sentencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system. They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime.

(R. v. Gladue, [1999] 1 S.C.R. 688, [1999] S.C.J. No. 19, at para. 65)

A. Overview

1Ms. Sharma is a young Indigenous woman who pleaded guilty to importing a significant quantity of cocaine, contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 ("CDSA"), and received a sentence of 17 months' incarceration.

2At her sentencing hearing, Ms. Sharma asked the court to strike down s. 742.1(c) of the Criminal Code, R.S.C. 1985, c. C-46, which removes the availability of a conditional sentence for offences, prosecuted by indictment, where the [page216] maximum penalty is 14 years or life in prison, under s. 15 of the Canadian Charter of Rights and Freedoms, because its effect is to discriminate against Aboriginal offenders on the basis of race. The sentencing judge rejected the application and imposed the custodial sentence.

3On this sentence appeal, Ms. Sharma asks the court to strike down s. 742.1(c), and a similar provision in s. 742.1(e)(ii),¹ on the basis that they contravene two sections of the Charter: they contravene s. 15 of the Charter because their effect is to discriminate against Aboriginal offenders on the basis of race, and they contravene s. 7 of the Charter because they are arbitrary and overbroad in relation to their purpose. While the s. 7 challenge was initially raised before the sentencing judge, it was withdrawn at the submission stage after all the evidence was heard and he did not rule on it. This court allowed Ms. Sharma to raise the s. 7 challenge on the appeal.

4I agree with Ms. Sharma that the impugned provisions contravene both ss. 7 and 15 of the Charter and are not saved by s. 1. I would allow the appeal and strike down the provisions. I would set aside Ms. Sharma's custodial sentence. As submitted by Ms. Sharma, the appropriate sentence would have been 24 months less a day, to be served conditionally. However, as Ms. Sharma has served her custodial sentence, I would substitute a sentence of time served.

B. The Offender and the Offence

5Ms. Sharma is a 25-year-old Canadian woman of Ojibwa ancestry and is a member of the Saugeen First Nation.

6On June 27, 2015, Ms. Sharma returned from a trip to Surinam, landing at Toronto Pearson International Airport with a suitcase containing 1971.5 grams of cocaine. She needed money because she was behind on rent and facing eviction. She agreed to fly to Surinam to retrieve the drugs in exchange for $20,000 from her boyfriend to avoid homelessness for herself and for her daughter. After she was apprehended, she confessed to the RCMP that she had been paid to transport the cocaine, which had an estimated street value of roughly $130,000. She was 20 years old when she imported the drugs, and she had no prior criminal record. [page217]

7After pleading guilty to importing two kilograms of cocaine contrary to s. 6(1) of the CDSA, Ms. Sharma described her personal circumstances to a case worker in the following terms, as part of a report of Ms. Sharma's personal history filed pursuant to R. v. Gladue, supra:

Well around the time it happened, I was two months behind in rent and I was about to be evicted and I had other bills to pay. The guy who I was dating at the time said he could help me out with the money but I would have to do something for him. He said I would have to take a vacation and do a few things for him down there. I said okay because I didn't have any way to get the money to pay off my bills and it needed to be paid or else me and my daughter would have gone homeless and I couldn't let that happen because I didn't bring life into this would to be raised like that -- without a home. I wanted to raise my daughter better than I was raised. I wanted to be independent and take care of her and when I got behind in rent I didn't know what to do but I knew I had to do something about it. I was in a very bad place -- a low point in my life.

I remember the day I had to leave I was freaking out. I didn't want to do it but he said I had to do it and he reminded me about how I was gonna be evicted. I remember crying outside the airport smoking cigarettes before I had to go and check in.

8Ms. Sharma endured significant personal hardship growing up.

9As a child, Ms. Sharma, her mother and her siblings moved in with her grandmother, after her father was arrested for murder and deported to Trinidad. Her grandmother attended two residential schools between the ages of four and 16. Given her background, the sentencing judge characterized Ms. Sharma as "an intergenerational survivor of the government's residential school effort to eradicate the cultural heritage of her people": at para. 266.

10When Ms. Sharma was 13 years old, she was raped by two men while she was walking home. She left school, ran away from home and by age 15, she started working as a sex worker. At 16, she enrolled in high school but dropped out because she could not afford the $400 uniform. She is a single mother who gave birth to her daughter at age 17. Over the years, she has attempted suicide more than once and has struggled with depression and anxiety.

C. Sentencing Proceedings

11The sentencing proceedings below involved a number of legislative provisions and Charter challenges by Ms. Sharma. [page218]

(1) Relevant legislation

12I begin with the regime that governed the sentencing of Ms. Sharma.

13First, the offence of importing more than one kilogram of a Schedule I substance attracted a mandatory minimum sentence of two years' imprisonment, pursuant to s. 6(3) (a.1) of the CDSA, subject to the following proviso, in s. 8:

8. The court is not required to impose a minimum punishment unless it is satisfied that the offender, before entering a plea, was notified of the possible imposition of a minimum punishment for the offence in question and of the Attorney General's intention to prove any factors in relation to the offence that would lead to the imposition of a minimum punishment.

14Second, among the general sentencing principles contained within ss. 718, 718.1 and 718.2 of the Criminal Code, s. 718.2(e) was notably relevant to the sentencing of an Aboriginal offender like Ms. Sharma. That provision codifies the principle that "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". The Supreme Court has held that s. 718.2(e) specifically instructs courts to consider whether to impose a conditional sentence, namely a sentence served in the community under strict conditions, pursuant to s. 742.1 of the Criminal Code: Gladue, at para. 40.

15Third, a package of Criminal Code amendments from 2012, enacted as part of the Safe Streets and Communities Act, S.C. 2012, c. 1 shaped the sentencing landscape for Ms. Sharma by modifying s. 742.1 to make conditional sentences unavailable for offenders convicted of certain categories of offence. These amendments are at the crux of Ms. Sharma's appeal.

16The relevant parts of s. 742.1, including the amendments, read as follows:

742.1 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

(b) the offence is not an offence punishable by a minimum term of imprisonment;

(c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life; [and] [page219]

(e) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that

(ii) involved the import, export, trafficking or production of drugs[.]

(2) Constitutional issues on sentencing

17Through the intervenor, Aboriginal Legal Services, Ms. Sharma raised a number of constitutional challenges at the sentencing hearing.

18First, she argued that the two-year mandatory minimum in s. 6(3)(a.1) of the CDSA infringed her right to be free from cruel and unusual punishment, contrary to s. 12 of the Charter.

19On the day of Ms. Sharma's arrest, the Crown served a notice pursuant to s. 8 of the CDSA, indicating its intent to seek the two-year mandatory minimum sentence. In fact, during the two years that followed Ms. Sharma's arrest, the Crown sought a sentence in the six-year range. That position changed to three years and six months in the Crown factum filed on sentencing in September 2017, on the basis of balancing the seriousness of the offence with the Gladue factors codified in s. 718.2 of the Criminal Code. One week later, the Crown withdrew the notice pursuant to s. 8 of the CDSA and instead sought a sentence of 18 months in light of the personal hardship Ms. Sharma had endured.

[20] The issue then arose whether the court should hear the s. 12 Charter challenge to the two-year mandatory minimum, which had been rendered moot by the Crown's changed position. The sentencing judge accepted Ms. Sharma's submission that he should hear the s. 12 challenge along with the s. 15 challenge. Evidence relevant to the s. 12 issue had already been heard, Aboriginal Legal Services had been granted leave to intervene, Ms. Sharma was represented, and all parties were prepared for the argument.

21The sentencing judge struck down the two-year mandatory minimum sentence in s. 6(3)(a.1) of the CDSA, as it would have constituted cruel and unusual punishment when applied to Ms. Sharma and a number of reasonable hypothetical offenders. The Crown has not appealed that declaration of invalidity.

22Second, Ms. Sharma initially challenged the constitutionality of the restriction on the availability of conditional sentences in s. 742.1(b) and (c) of the Criminal Code on the basis [page220] that they violated her liberty rights under s. 7 and her equality rights under s. 15 of the Charter.

23While Ms. Sharma's pleadings and notice of constitutional question at trial raised both ss. 7 and 15, the intervenor, whose counsel had carriage of the Charter arguments, abandoned but did not concede the s. 7 issue at the conclusion of the evidence. The parties thus only argued the s. 15 issue.

24The sentencing judge rejected Ms. Sharma's s. 15 challenge to s. 742.1(c). Although he acknowledged that s. 742.1(c) rendered offenders like Ms. Sharma ineligible for conditional sentences, he found that she had not met her onus of showing discriminatory impact because of a lack of statistical information before the court on the impact of the provision on Aboriginal offenders. Because conditional sentences remain available for a majority of offences, the sentencing judge held that he was unable to determine whether the law created a "distinction" based upon Aboriginal status and, if so, whether that distinction gave rise to unconstitutional discrimination.

25As he had struck down the mandatory minimum sentence that would have applied to Ms. Sharma, the sentencing judge declined to rule on the constitutionality of s. 742.1(b), the provision denying conditional sentences to offenders convicted of offences that attract a mandatory minimum penalty.

26In the result, the sentencing judge determined that an appropriate sentence for Ms. Sharma was 18 months' imprisonment, reduced to 17 months to take account of her presentence detention and lengthy periods on bail.

D. Issues on Appeal

27Ms. Sharma argues that s. 742.1(c) and (e)(ii) of the Criminal Code are unconstitutional because

(1) they infringe the s. 15 rights of Aboriginal offenders by discriminating on the basis of race;

(2) they infringe her s. 7 liberty rights because they are overbroad and arbitrary;

(3) the infringements of ss. 7 or 15 cannot be saved by s. 1.

E. The Legislative Context

28Before turning to the substantive issues in this appeal, it is necessary first to provide some context for the impugned provisions and their legislative history. [page221]

29Conditional sentences came into force in 1996 in s. 742.1 of the Criminal Code as part of major sentencing reforms intended to encourage the application of principles of restorative justice in sentencing and to reduce overincarceration and the use of prison sentences, where appropriate.

30When they were introduced, conditional sentences represented a unique mode of sentencing. Conditional sentences allow a sentencing judge to impose a sentence to fit the circumstances of the offender and further the goals of denunciation and deterrence, but permit the offender to serve that sentence in the community on conditions including a form of house arrest. The statutory scheme sets out certain mandatory conditions in s. 742.3(1) and confers discretion on the sentencing judge to impose further conditions in s. 742.3(2). When first enacted, a conditional sentence could be imposed where three conditions were met: the offence did not carry a mandatory minimum sentence; the sentence imposed was less than two years; and serving the sentence in the community would not pose a danger to the community.

31As part of the same reform initiative, Parliament also enacted s. 718.2(e). That provision instructs sentencing judges to consider all available sanctions other than imprisonment for "all offenders, with particular attention to the circumstances of aboriginal offenders".

32At the time the reforms were adopted, the Minister of Justice explained to the House of Commons Standing Committee on Justice and Legal Affairs that alternatives to incarceration were necessary given the reality that Aboriginal offenders were overrepresented in prisons, as quoted at para. 47 of Gladue:

[T]he reason we referred specifically [in s. 718.2(e)] to aboriginal persons is that they are sadly overrepresented in the prison populations of Canada. I think it was the Manitoba justice inquiry that found that although aboriginal persons make up only 12% of the population of Manitoba, they comprise over 50% of the prison inmates. Nationally aboriginal persons represent about 2% of Canada's population, but they represent 10.6% of persons in prison. Obviously there's a problem here.

What we're trying to do, particularly having regard to the initiatives in the aboriginal communities to achieve community justice, is to encourage courts to look at alternatives where it's consistent with the protection of the public -- alternatives to jail -- and not simply resort to that easy answer in every case.

33In other words, Parliament recognized the significant problem of overrepresentation of Aboriginal people in prisons in Canada, and enacted both a directive to sentencing judges in s. [page222] 718.2(e) and, most importantly, a real tool to address the problem in s. 742.1: the conditional sentence.

34In its landmark 1999 decision in Gladue, the Supreme Court identified s. 718.2(e) as a "watershed", not merely a restatement of existing principles of restraint in sentencing: at para. 39. The court stated, at para. 40, that the purpose of s. 718.2(e) was remedial, particularly given the concurrent introduction of the conditional sentence in s. 742.1:

The availability of the conditional sentence of imprisonment, in particular, alters the sentencing landscape in a manner which gives an entirely new meaning to the principle that imprisonment should be resorted to only where no other sentencing option is reasonable in the circumstances. The creation of the conditional sentence suggests, on its face, a desire to lessen the use of incarceration. The general principle expressed in s. 718.2(e) must be construed and applied in this light.

35In its analysis of the purpose of s. 718.2(e) as it relates specifically to Aboriginal people, the court discussed at length the "serious problem of aboriginal overrepresentation in Canadian prisons": Gladue, at para. 59. The court observed that this problem is well documented and only one manifestation of the broader issue of Aboriginal overrepresentation in the criminal justice system, noting, at para. 61:

Not surprisingly, the excessive imprisonment of aboriginal people is only the tip of the iceberg insofar as the estrangement of the aboriginal peoples from the Canadian criminal justice system is concerned. Aboriginal people are overrepresented in virtually all aspects of the system. As this Court recently noted in R. v. Williams, [1998] 1 S.C.R. 1128, at para. 58, there is widespread bias against aboriginal people within Canada, and "[t]here is evidence that this widespread racism has translated into systemic discrimination in the criminal justice system".

36The court then addressed the limited but important role that sentencing judges could play in remedying injustice against Aboriginal people, at para. 65 of Gladue:

It is clear that sentencing innovation by itself cannot remove the causes of aboriginal offending and the greater problem of aboriginal alienation from the criminal justice system. The unbalanced ratio of imprisonment for aboriginal offenders flows from a number of sources, including poverty, substance abuse, lack of education, and the lack of employment opportunities for aboriginal people. It arises also from bias against aboriginal people and from an unfortunate institutional approach that is more inclined to refuse bail and to impose more and longer prison terms for aboriginal offenders. There are many aspects of this sad situation which cannot be addressed in these reasons. What can and must be addressed, though, is the limited role that sentencing judges will play in remedying injustice against aboriginal peoples in Canada. Sentencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system. They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which [page223] will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime.

(Emphasis added)

37Importantly, the court in Gladue rejected the suggestion that sentences that prioritize restorative justice principles are more lenient than sentences that impose a term of imprisonment. Rather, they reflect Aboriginal justice concepts and enable a sentencing judge to impose a sentence that will better serve the purposes of sentencing for an Aboriginal offender, as the court recognized, at para. 74 of Gladue:

[O]ne of the unique circumstances of aboriginal offenders is that community-based sanctions coincide with the aboriginal concept of sentencing and the needs of aboriginal people and communities. It is often the case that neither aboriginal offenders nor their communities are well served by incarcerating offenders, particularly for less serious or non-violent offences. Where these sanctions are reasonable in the circumstances, they should be implemented. In all instances, it is appropriate to attempt to craft the sentencing process and the sanctions imposed in accordance with the aboriginal perspective.

38On the issue of the relationship between s. 15 of the Charter and s. 718.2(e), the court stated, at para. 87 of Gladue:

There is no constitutional challenge to s. 718.2(e) in these proceedings, and accordingly we do not address specifically the applicability of s. 15 of the Charter. We would note, though, that the aim of s. 718.2(e) is to reduce the tragic overrepresentation of aboriginal people in prisons. It seeks to ameliorate the present situation and to deal with the particular offence and offender and community. The fact that a court is called upon to take into consideration the unique circumstances surrounding these different parties is not unfair to non-aboriginal people. Rather, the fundamental purpose of s. 718.2(e) is to treat aboriginal offenders fairly by taking into account their difference.

39However, the court also explained that the remedial nature of s. 718.2(e) does not require an automatic reduction in sentence for all Aboriginal offenders. Rather, the court held at para. 88, sentencing continues to reflect the full circumstances of the offender and the offence, including the factor set out in s. 718.2(e):

[Section 718.2(e)] is one of the statutorily mandated considerations that a sentencing judge must take into account. It may not always mean a lower sentence for an aboriginal offender. The sentence imposed will depend upon allthe factors which must be taken into account in each individual case. The weight to be given to these various factors will vary in each case. At the same time, it must in every case be recalled that the direction to consider these unique circumstances flows from the staggering injustice currently experienced by aboriginal peoples with the criminal justice system. The provision reflects the reality that many aboriginal people are alienated from this system which frequently does not reflect their needs or their understanding of an appropriate sentence. [page224]

(Emphasis in original)

40By 2012, courts in Canada had had 13 years to implement the Supreme Court's directions in Gladue. However, in R. v. Ipeelee (2012), 113 O.R. (3d) 320, [2012] 1 S.C.R. 433, [2012] S.C.J. No. 13, 2012 SCC 13, the majority of the Supreme Court reported that "overrepresentation and alienation of Aboriginal peoples in the criminal justice system ha[d] only worsened" since Gladue and the 1996 Criminal Code amendments: at para. 62. The majority accepted that the failure to alleviate the situation could be the result of ongoing misunderstanding and misapplication of s. 718.2(e) and the Gladue decision. Writing for the majority, LeBel J. sought to provide additional guidance. He recognized, at para. 65, that overincarceration of Aboriginal people could be caused or contributed to by two circumstances: either Aboriginal people commit a disproportionate number of crimes, or they are the victims of a discriminatory justice system.

41LeBel J. explained that the sentencing process can address both phenomena. Specifically, sentencing judges can address the first circumstance by imposing just sentences that meet the needs of Aboriginal offenders and their communities, thereby deterring criminality and rehabilitating offenders: Ipeelee, at para. 66.

42It is the second circumstance, however, that is the focus of s. 718.2(e). The role of sentencing judges, "as front-line workers in the criminal justice system", is to ensure that systemic factors do not inadvertently produce discriminatory sentencing results: Ipeelee, at para. 67. Factors such as employment status, family support, and education influence whether a person goes to jail in a borderline case. The court accepted that because social, political and economic forces cause many Aboriginal people to experience instability in these areas, they are sentenced to jail more often, reflecting systemic discrimination: Ipeelee, at para. 67.

43The remedy available to sentencing judges is to impose just sanctions that do not operate in a discriminatory manner. At para. 72, LeBel J. instructed sentencing judges to consider

(1) the unique systemic and background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (2) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection. Both sets of circumstances bear on the ultimate question of what is a fit and proper sentence.

44In Ipeelee, the court emphasized and repeated the principles from Gladue, that Aboriginal communities traditionally [page225] have different conceptions of just punishment. By crafting a sentence to be served with appropriate conditions in the community that takes those views into account, the sentence imposed may be viewed as more just and may therefore be more effective in achieving the objectives of sentencing.

45The court also strongly rejected the suggestion that treating Aboriginal offenders differently in sentencing violates the parity principle, codified in s. 718.2(b) of the Criminal Code. That suggestion ignores the impact of the history of Aboriginal peoples in Canada, given that "[t] he overwhelming message emanating from the various reports and commissions on Aboriginal peoples' involvement in the criminal justice system is that current levels of criminality are intimately tied to the legacy of colonialism": at para. 77.

46Finally, LeBel J. identified two major errors that sentencing courts had made following Gladue that had the effect of both "significantly curtail[ing] the scope and potential remedial impact" of s. 718.2(e) as well as "thwarting what was originally envisioned by Gladue": Ipeelee, at para. 80.

47The first error was requiring offenders to prove a causal link between the systemic and background factors referred to in s. 718.2(e) and the commission of the offence. Requiring a causal link is an error because it is well recognized that Aboriginal people have suffered from systemic discrimination in Canada, the effects of which are interconnected and complex. At para. 83 of Ipeelee, LeBel J. quoted with approval the Aboriginal Justice Inquiry of Manitoba's conclusion that

Cultural oppression, social inequality, the loss of self-government and systemic discrimination, which are the legacy of the Canadian government's treatment of Aboriginal people, are intertwined and interdependent factors, and in very few cases is it possible to draw a simple and direct correlation between any one of them and the events which lead an individual Aboriginal person to commit a crime or to become incarcerated.

48Moreover, s. 718.2(e) does not require proof of causation: Ipeelee, at para. 83. The background factors are not an excuse for committing the crime, but are instead the context for assessing and imposing an appropriate sentence: at para. 83.

49The second error LeBel J. highlighted in sentencing decisions since Gladue related to the applicability of Gladue principles to serious or violent offences. Courts had picked up on one comment from Gladue, at paras. 33 and 79, that suggested that for such offences, Aboriginal offenders and other offenders would likely receive similar jail sentences. In Ipeelee, at paras. 86-87, LeBel J. clarified that the Gladue framework was obligatory in every case and that the [page226] sentencing court has a duty to apply s. 718.2(e), including for serious and violent offences:

Trying to carve out an exception from Gladue for serious offences would inevitably lead to inconsistency in the jurisprudence due to "the relative ease with which a sentencing judge could deem any number of offences to be 'serious'" ([R. Pelletier, "The Nullification of Section 718.2(e): Aggravating Aboriginal Over-representation in Canadian Prisons" (2001), 39 Osgoode Hall L.J. 469], at p. 479). It would also deprive s. 718.2(e) of much of its remedial power, given its focus on reducing overreliance on incarceration. A second question arises: Who are courts sentencing if not the offender standing in front of them? If the offender is Aboriginal, then courts must consider all of the circumstances of that offender, including the unique circumstances described in Gladue. There is no sense comparing the sentence that a particular Aboriginal offender would receive to the sentence that some hypothetical non-Aboriginal offender would receive, because there is only one offender standing before the court.

The sentencing judge has a statutory duty, imposed by s. 718.2(e) of the Criminal Code, to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. As these reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamental principle of proportionality. Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender, including breach of [a long-term supervision order], and a failure to do so constitutes an error justifying appellate intervention.

50In Gladue and Ipeelee, the Supreme Court made clear that when sentencing Aboriginal offenders, sentencing judges must consider all available sanctions other than imprisonment that are reasonable in the circumstances of the case. Section 718.2(e) is "focus[ed] on reducing overreliance on incarceration": Ipeelee, at para. 86. A significant alternative to incarceration is the conditional sentence, which Parliament created in s. 742.1.

51Section 742.1 read as follows, as originally enacted:

742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court

(a) imposes a sentence of imprisonment of less than two years, and

(b) is satisfied that serving the sentence in the community would not endanger the safety of the community,

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 offender's complying with the conditions of a conditional sentence order made under section 742.3.

52An important clarification was added in 1997, modifying the language of s. 742.1(b) to ensure that a conditional sentence would only be imposed when it would be consistent with the purposes and principles of sentencing in ss. 718-718.2: [page227]

742.1(b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2,

53In 2007, Parliament amended the section to provide some further restrictions on the availability of the conditional sentence. The amended version provided:

742.1 If a person is convicted of an offence, other than a serious personal injury offence as defined in section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, 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 offender's compliance with the conditions imposed under section 742.3.

54Finally, in 2012, Parliament enacted the Safe Streets and Communities Act, which included the amendment to s. 742.1 to eliminate the availability of a conditional sentence for a broad array of offences, including the ones applicable to Ms. Sharma, in s. 742.1(c) and (e)(ii):

742.1 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

(c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life; [and]

(e) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that

(ii) involved the import, export, trafficking or production of drugs[.]

55In enacting the Safe Streets and Communities Act, the parliamentary debates reveal that no consideration was given to the potential effect of the amendments on Aboriginal offenders. The issue was raised by opposition members and in the Senate, but no response was made. [page228]

F. Section 15

56Ms. Sharma argues that s. 742.1(c) and (e)(ii) violate the s. 15 equality rights of Aboriginal persons. I would give effect to this ground of appeal.

(1) Reasons of the sentencing judge rejecting the s. 15 challenge

57The sentencing judge framed the impact of s. 742.1(c) on Ms. Sharma at para. 242 of his reasons as follows:

Prior to enactment of the [Safe Streets and Communities Act] in 2012, offenders in [Ms. Sharma's] position, for approximately a 16-year period, would have been eligible for, and did in appropriate cases, receive a conditional sentence disposition. Now, because s. 742.1(c) of the Code eliminates such a sanction for offences carrying a maximum sentence of life imprisonment, a sentencing court has no resort to the option of imposing imprisonment on a conditional basis.

58The sentencing judge began the analysis of the constitutionality of this provision by setting out the two-part test from R. v. Kapp, [2008] 2 S.C.R. 483, [2008] S.C.J. No. 42, 2008 SCC 41, at para. 248 of his reasons: "(1) does the impugned law create a distinction based on an enumerated or analogous ground?, and (2) does such a distinction so found create a disadvantage by perpetuating prejudice or stereotyping?"

59The sentencing judge held that the s. 15 argument failed on the first prong. For most crimes, a conditional sentence remains available, and in the absence of a statistical record demonstrating a differential impact on Indigenous offenders, the sentencing judge concluded that the legislation did not create a distinction.

60He held that the absence of the option of a conditional sentence for certain offences did not impair his "broad discretion to do justice in individual cases including the imposition of less punitive sanctions for serious offences": at para. 258. Among those less punitive sanctions, sentencing judges could impose suspended sentences or probation, or fix a reformatory sentence at an appropriate length for the circumstances of the offender. Finally, the sentencing judge noted that the continued availability of parole and temporary absence permits attenuates the adverse impact of a custodial sentence.

[61] As a result, he dismissed Ms. Sharma's s. 15 Charter application. [page229]

(2) The legal principles

62Section 15(1) of the Charter provides the following guarantee:

15(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.

63The test for determining whether a law contravenes this guarantee has evolved since the Supreme Court's decision in Kapp. It was most recently restated by the Supreme Court in Kahkewistahaw First Nation v. Taypotat, [2015] 2 S.C.R. 548, [2015] S.C.J. No. 30, 2015 SCC 30, and that restatement was confirmed by the majority in Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, [2018] 1 S.C.R. 464, [2018] S.C.J. No. 17, 2018 SCC 17. In Taypotat, the court repeated that s. 15 protects substantive equality, and that its focus is "on laws that draw discriminatory distinctions -- that is, distinctions that have the effect of perpetuating arbitrary disadvantage based on an individual's membership in an enumerated or analogous group" (emphasis in original): at para. 18.

64There are two parts to the analysis. First, the court must determine whether, on its face or in its impact, a law creates a distinction on the basis of an enumerated or analogous ground: Taypotat, at para. 19; Centrale des syndicats du Québec v. Quebec (Attorney General), [2018] 1 S.C.R. 522, [2018] S.C.J. No. 18, 2018 SCC 18, at para. 22. In Quebec v. Alliance, at para. 26, the court elaborated on the purpose and scope of the first step of the analysis: it is neither a preliminary merits screening, nor an onerous hurdle designed to weed out claims on technical bases. Instead, "its purpose is to ensure that s. 15(1) of the Charter is accessible to those whom it was designed to protect", and "to exclude claims that have 'nothing to do with substantive equality'": Quebec v. Alliance, at para. 26, citing Taypotat, at para. 19.

65The second part of the analysis focuses on arbitrary or discriminatory disadvantage and asks whether the impugned law "fails to respond to the actual capacities and needs of the members of the group and instead imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating their disadvantage": Taypotat, at para. 20; Centrale, at para. 22. The onus on the claimant is to "demonstrate that the law at issue has a disproportionate effect on the claimant based on his or her membership in an [page230] enumerated or analogous group": Taypotat, at para. 21. However, at this second stage of the analysis, the specific evidence required "will vary depending on the context of the claim" and "'evidence that goes to establishing a claimant's historical position of disadvantage' will be relevant": Taypotat, at para. 21, citing Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396, [2011] S.C.J. No. 12, 2011 SCC 12, at para. 38. In Quebec v. Alliance, the majority clarified that at the second step, "[t]he focus is not on 'whether a discriminatory attitude exists', or on whether a distinction 'perpetuates negative attitudes' about a disadvantaged group, but rather on the discriminatory impact of the distinction" (emphasis in original): at para. 28.

(3) Analysis

66The effect of the Safe Streets and Communities Act's amendment resulting in s. 742.1(c) and (e)(ii) is to preclude sentencing judges from imposing a conditional sentence on an offender convicted of an offence prosecuted by indictment where the maximum term of imprisonment is 14 years or life, or an offence prosecuted by indictment involving the import, export, trafficking or production of drugs, where the maximum term of imprisonment is ten years. Ms. Sharma is affected by both preclusions.

67The sentencing judge rejected Ms. Sharma's submission that the impugned provisions contravene s. 15 of the Charter because their effect is to deny Ms. Sharma the equal benefit of the law by discriminating against her on the basis of race. In my view, he erred in his conclusion and in his analysis. I would answer the two parts of the Taypotat analysis by holding, first, that the impugned provisions, in their impact on Aboriginal offenders including Ms. Sharma, create a distinction on the basis of race; and, second, that the provisions deny Ms. Sharma a benefit in a manner that has the effect of reinforcing, perpetuating and exacerbating her disadvantage as an Aboriginal person.

(a) Distinction on the basis of an enumerated or analogous ground

68The first question is whether the impugned provisions create a distinction on an enumerated or analogous ground, either on their face or in their impact. Limiting claims to enumerated or analogous grounds screens out claims having nothing to do with substantive equality: Taypotat, at para. 19. [page231]

69Section 742.1(c) and (e)(ii) are facially neutral. On their face, they apply equally to all offenders. However, it is in their effect that they create a distinction.

70Aboriginal offenders start from a place of substantive inequality in the criminal justice system. The overincarceration of Aboriginal people is one of the manifestations of that substantive inequality, which prompted Parliament to create the community-based conditional sentence and direct sentencing judges to consider that sanction, along with all others that do not involve imprisonment, when determining an appropriate punishment for Aboriginal offenders. The conditional sentence is one means of redressing the substantive inequality of Aboriginal people in sentencing. It is certainly the case that conditional sentences are available to all offenders, not just Aboriginal offenders. However, the legislative history and jurisprudence demonstrate that conditional sentences take on a unique significance in the context of Aboriginal offenders by conferring the added benefit of remedying systemic overincarceration. By removing that remedial sentencing option, the impact of the impugned provisions is to create a distinction between Aboriginal and non-Aboriginal offenders based on race.

71An analogy can be drawn between the Safe Streets and Communities Act amendments in this appeal and the legislation at issue in Quebec v. Alliance. In that case, a majority of the court struck down sections of the Quebec Pay Equity Act, C.Q.L.R., c. E-12.001, a remedial framework designed to redress gender discrimination in the workplace, because the impugned provisions maintained pay inequities for a period of time and, in that way, perpetuated the pre-existing disadvantage of women in the workplace. The provisions therefore had the effect of drawing a distinction on the basis of gender.

72Similarly, because the impugned provisions of the Safe Streets and Communities Act limit the availability of the conditional sentence, a significant remedial tool in the Gladue framework, their effect is to draw a distinction on the basis of race.

73The Crown's position is that the claim fails on the first part of the test. The Crown analogizes the claim in this case to the s. 15 argument that was rejected by the trial judge in R. v. Nur, [2011] O.J. No. 3878, 2011 ONSC 4874, 275 C.C.C. (3d) 330 (S.C.J.), and upheld by this court: (2013), 117 O.R. (3d) 401, [2013] O.J. No. 5120, 2013 ONCA 677.² In Nur, the appellant argued that the mandatory minimum sentence for [page232] a firearms offence would affect black offenders disproportionately because they are overrepresented in the criminal justice system. Code J. held, at para. 82, that the mandatory minimum sentence for the firearms offence did not draw a race-based distinction against black offenders because it did not cause any discriminatory effect; rather, that effect existed independently of the provision. In reaching this conclusion, Code J. endorsed the reasoning of Green J. in R. v. Johnson, [2011] O.J. No. 822, 2011 ONCJ 77, 268 C.C.C. (3d) 423, at para. 130, which he quoted, at para. 81, as follows:

The Bill C-25 amendments, as I read them, do not create a distinction based on race. The impugned provisions apply to all offenders. While a disproportionate number of black and native persons may be captured by the amendments, they do not distinguish the Applicant from other offenders on the basis of his heritage, either in intent or effect. . . . [T]he current demographic evidence relating to pretrial custody suggests that detention orders are correlated with considerations such as attenuated community ties, unemployment and a history of prior criminality. These factors may disproportionately characterize members of the black and Aboriginal community, but they are present in all racial and ethnic groups and are far from universal or defining features of persons sharing either of the Applicant's ancestries. Further, the Applicant's argument, logically pursued, renders much of criminal law -- or, at minimum, those statutory instruments bearing on penal sanctions -- vulnerable to s. 15 challenge on the same footing. This hardly seems tenable.

(Emphasis added)

74The Crown argues that similarly in this case, the removal of the conditional sentence option does not create any distinction between Aboriginal and other offenders -- that distinction already exists because of the social circumstances of Aboriginal people.

75I reject this argument and the analogy to the Nur decision. I do so for three reasons.

76The first reason relates to the final observation raised by Code J. in Nur, that the s. 15 argument amounted to the claim that because black offenders are disproportionately represented in the criminal justice system, then any penal provision will have a disproportionate effect on that community and will therefore be vulnerable to a s. 15 challenge. In this case, the Crown presented a similar "floodgates" argument, namely that Ms. Sharma's claim amounted to saying that s. 742.1(c) created a distinction based on race because it was part of a discriminatory criminal justice system. In my view, the sentencing judge erred in accepting this argument and in characterizing Ms. Sharma's claim in this way.

77Parliament's purpose in enacting s. 718.2(e), together with the conditional sentence, was to address the issue of [page233] overincarceration generally and, in particular, the overincarceration of Aboriginal offenders in Canada. In Gladue, the court stated, at paras. 50 and 51:

The parties and interveners agree that the purpose of s. 718.2(e) is to respond to the problem of overincarceration in Canada, and to respond, in particular, to the more acute problem of the disproportionate incarceration of aboriginal peoples.

[O]n the above points of agreement the parties and interveners are correct. A review of the problem of overincarceration in Canada, and of its peculiarly devastating impact upon Canada's aboriginal peoples, provides additional insight into the purpose and proper application of this new provision.

78In Gladue, the court drew a direct connection between ss. 718.2(e) and 742.1, observing that "[t]he general principle expressed in s. 718.2(e) must be construed and applied" in light of the desire, reflected in the creation of the conditional sentence, to reduce the use of incarceration: at para. 40; see, also, R. v. Proulx, [2000] 1 S.C.R. 61, [2000] S.C.J. No. 6, 2000 SCC 5, at para. 92. The court acknowledged that overincarceration was part of the larger issue of overrepresentation of Aboriginal people within the criminal justice system, and the role that systemic discrimination played in causing and contributing to the circumstances that allowed that problem to develop. However, while the remedial sentencing provisions are aimed at addressing the larger issue indirectly through restorative justice in the context of sentencing, their direct focus is on reducing the number of Aboriginal offenders sentenced to jail.

79The distinction that is created by the impact of the impugned provisions relates to the overincarceration of Aboriginal offenders, not their overrepresentation in the criminal justice system. By removing the ability to impose a conditional sentence instead of a prison sentence for an offence, the effect on an Aboriginal offender is to undermine the purpose and remedial effect of s. 718.2(e) in addressing the substantive inequality between Aboriginal and non-Aboriginal people manifested in overincarceration within the criminal justice system, which has been acknowledged by Parliament and the courts as requiring redress. I therefore reject the contention that any finding of a breach of s. 15 in this case will thereby open all penal provisions to a similar s. 15 attack.

80Second, based on Nur, the Crown argues that the impugned provisions did not "create" the distinction of overincarceration of Aboriginal offenders, which already existed. This submission effectively relates to the second part of the [page234] analysis: the extent to which the law does or does not reinforce, exacerbate or perpetuate disadvantage for the affected group. Therefore, this submission properly belongs within the analysis under the second part. I nevertheless address it briefly here in response to the Crown's submission.

81While the Supreme Court in Taypotat, at para. 19, used the word "creates" in the articulation of the first part of the analysis, creating a distinction as opposed to perpetuating it was not intended to make the first part more onerous.

82The Supreme Court has made clear that the first part of the analysis was not intended to foreclose legitimate claims based on technicalities: Quebec v. Alliance, at para. 26. It was intended to ensure that the claim was based on an enumerated or analogous ground. In referring to the creation of a distinction, the first part of the analysis merely asks whether the legislation created a differential impact on the basis of a protected ground.

83Where a law establishes a new benefit, but does so in a discriminatory manner, that law will "create" a distinction. But where, as here, a law removes a remedial provision that was put in place to alleviate the discriminatory effect of other laws, then the removal of that remedial provision may not create a new distinction, but it will reinforce, perpetuate, or exacerbate the discriminatory effect that was intended to be alleviated by the remedial provision. As Abella J. explained in Quebec v. Alliance, at paras. 33-36, 42, provisions enacted to alleviate a discriminatory impact are not unchangeable, and can be modified, but any modifications must be constitutionally compliant in their effect, and must not cause a discriminatory impact.

84At para. 33, Abella J. described the analytical framework for determining the constitutionality of amendments to a remedial scheme, with reference to the amended pay equity regime at issue in that case:

I do not share the unions' view that once Quebec adopted ss. 40 to 43, it was constitutionally required to keep them on the books, so that any modification in the type or extent of protection afforded by those provisions would amount to a constitutional violation. To accept that submission in these circumstances would constitutionalize the policy choice embodied in the first version of the Act, improperly shifting the focus of the analysis to the form of the law, rather than its effects. Instead, there is a discriminatory impact because, assessed on their own and regardless of the prior legislative scheme, the impugned provisions perpetuate the pre-existing disadvantage of women.

(Italics in original; underlining added)

85Similarly here, as I discuss further in my reasons below, the effect of the impugned provisions that restrict the availability of the remedial conditional sentence option is to perpetuate [page235] the already existing disadvantage suffered by Aboriginal offenders of being sentenced to jail more consistently than other offenders. I note that this important explanation by Abella J. also answers the criticism raised by Miller J.A. in his dissenting reasons, at paras. 188-89 and 242-43.

86The third reason I would reject the analogy to Nur is that Nur did not involve discrimination against an Aboriginal offender. As Ms. Sharma states in her factum, the Supreme Court and Parliament (through s. 718.2(e)) have recognized that Aboriginal offenders "face a unique legacy of dislocation caused by government policies of cultural genocide through colonial expansion and residential schools". In Ipeelee, at para. 60, the Supreme Court affirmed:

To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples.

(b) Reinforcing, perpetuating, or exacerbating disadvantage

87The second part of the Taypotat analysis asks whether the impugned law has the effect of reinforcing, perpetuating, or exacerbating the disadvantage of the claimant. In this case, the question is whether the law has that effect on Ms. Sharma because she is Indigenous.

88Leading up to her commission of the offence at age 20, Ms. Sharma, an Indigenous woman, had a tragic personal history, which I have already described earlier in these reasons. While the sentencing judge did not state directly that he would have given Ms. Sharma a conditional sentence had he not been precluded from doing so by the Safe Streets and Communities Act, he acknowledged that "offenders in [Ms. Sharma's] position, for approximately a 16-year period, would have been eligible for, and did in appropriate cases, receive a conditional sentence disposition": at para. 242. Based on Ms. Sharma's personal background and current circumstances, including her guilty plea, lack of prior convictions and need to care for her very young child, Ms. Sharma was a prime candidate for a conditional sentence.

89But the Safe Streets and Communities Act denied her the availability of this community-based sanction. In doing so, for the reasons that follow, s. 742.1(c) and (e)(ii) have the effect of reinforcing, perpetuating, or exacerbating the disadvantage that Ms. Sharma faces as an Indigenous person. [page236]

(i) Evidence of historic disadvantage

90The sentencing judge had the benefit of an extensive evidentiary record detailing the relationship between the historic disadvantage endured by Aboriginal people in Canada and their overrepresentation in the criminal justice system.

91Dr. Carmela Murdocca, an associate professor of sociology at York University, provided expert evidence at the sentencing hearing regarding the relationship between colonialism, racism and the criminalization of Indigenous women. The sentencing judge stated, at para. 20:

The expert witness' evidence discussed the linkage of colonialism and racism to criminalization in particular of indigenous women. In the context of systemic cultural genocide of our country's First Nations peoples, the colonialism process has had a direct impact on disproportionate involvement of these persons with the criminal justice system. The witness described the legacies of colonialism including systemic racism, educational challenges, lack of employment opportunities, loss of and disruption to cultural transmission processes, as well as social and economic and property disenfranchisement, and other resultant factors leading to disproportionate contact with the criminal justice system. The legacies of colonialism and overt racism have resulted in "intergenerational trauma for families and communities".

92Dr. Murdocca described how one of the legacies of colonialism and racism in Indigenous women's lives is victimization and how that leads to criminal acts. The sentencing judge quoted part of her evidence, at para. 23:

Aspects of Indigenous women's social, economic and cultural experiences often inform their participation in serious offences. Research reveals that episodic or sustained victimization is a significant contextual factor in the commission of offences. There is much evidence to support the position that women's criminality is disproportionately a result of systemic disempowerment and violence.

In short, "victimization cannot be named as the cause of crime," however, experiences of victimization can assist in contextualizing why some Indigenous women experience constrained and limited life choices in light of racialized and gendered discrimination which strains access to social structures, resources and alternative options of economic support.

(Emphasis in original)

93Dr. Murdocca also explained that victimization and the legacies of colonialism and racism are connected to Indigenous women's participation in drug crimes. She described drug crimes as "survival crimes" that, in most cases involving women, are executed under conditions of duress.

94With respect to the impact of the Safe Streets and Communities Act provisions dealing with conditional sentences, Dr. [page237] Murdocca highlighted research showing that a significant number of Aboriginal women who had received conditional sentences in the past would have been precluded from receiving the same sentences if the new provisions had applied at the time of their sentencing:

Limiting, removing or restricting the conditional sentence option "removes one tool previously available to courts to mitigate the over-incarceration of Indigenous people." I quote [Ryan] Newell's article ["Making Matters Worse: The Safe Streets and the Ongoing Crisis of Indigenous Over-Incarceration" (2013) 51:1 Osgoode Hall L.J. 199] at length here to demonstrate some of the potential implications of restricting the use of conditional sentences for Indigenous women.

Research by Elspeth Kaiser-Derrick offers a stark illustration of the impact the [Safe Streets and Communities Act] will have on the availability of conditional sentences to Indigenous offenders. Kaiser-Derrick reviewed ninety-one cases of Indigenous women offenders to assess the ways that courts account for the Gladue factors. Of the ninety-one cases that Kaiser-Derrick analyzed between 1999 and 2011, thirty-one resulted in conditional sentences. She came to the following startling conclusion about how these thirty-one cases would be decided in the wake of the [Safe Streets and Communities Act]:

["]Following the 2012 s. 742.1 amendments, 29 of those 31 conditional sentence orders would no longer be possible. That bears repeating: either immediately on the law, or because on the facts the Crown proceeded by indictment for a hybrid offence now excluded by s. 742.1, 29 of the 31 Aboriginal women that received conditional sentence orders in my research would no longer be eligible for conditional sentences for the same offences/facts today. For one further case, I was unable to determine whether that offender would remain eligible for a conditional sentence, because the answer hinged on whether the Crown proceeded by indictment or summarily, which is unclear in the judgment. I only found one decision of the 31 that actually resulted in a conditional sentence order that would continue to be eligible for a conditional sentence order after the 2012 amendments. To be clear, that means that those 29 (possibly 30, depending on the answer for the judgment I could not conclusively settle) criminalized Aboriginal women would likely have been sent to prison instead under the current 2012 law (although perhaps in limited cases a strict probationary term may have been ordered). This regressive turn in sentencing law is deeply troubling, and threatens to further exacerbate the ongoing problem of overrepresentation.["]

(Footnotes omitted)

95Other statistical evidence referred to by the intervenors, Women's Legal Education and Action Fund Inc. and the David Asper Centre for Constitutional Rights, in their factum on the appeal, puts the issue of overrepresentation of Indigenous women in jail quite starkly. According to data from the Office of the Correctional Investigator, the intervenors highlight that between March 2009 and March 2018, the number [page238] of Indigenous women sentenced federally increased by 60 per cent, such that by the end of that period, 40 per cent of all federally incarcerated women were Indigenous: Government of Canada, Office of the Correctional Investigator, Annual Report 2017-2018 (Ottawa: O.C.I., 2018), at p. 61. Directly relevant to the potential effect of conditional sentences, which are only available where the appropriate prison sentence is less than two years and would be served in a provincial institution, Indigenous persons represented 4 per cent of the adult population of Canada in 2017-18 but accounted for 30 per cent of admissions to provincial or territorial jails compared to 21 per cent in 2007-08: Statistics Canada, Adult and youth correctional statistics in Canada, 2017/ 2018, by Jamil Malakieh, Catalogue No. 85-002-X (Ottawa: Statistics Canada, 2019), at p. 5. And over the same period, the increase in male Indigenous admissions to provincial or territorial institutions was 28 per cent while the female increase was 66 per cent: Adult and youth correctional statistics, at p. 5.

96These intervenors also provided significant additional information about the effect of incarceration on Indigenous women, particularly single mothers and their communities, quoting from the reports of numerous commissions of inquiry, the most recent being the final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls. One example is the impact on the children. When bail is denied or a custodial sentence is imposed on Indigenous women, their children may be placed in foster care, where Indigenous children are already overrepresented, accounting for 48 per cent of children in foster care in Canada: Canada, Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, vol. 1a (Ottawa: N.I.M.M.I.W.G., 2019), at p. 637. Documented effects of foster care on Indigenous children in non-Indigenous homes are loss of culture, language and identity, as well as the increased risk of involvement in the youth criminal justice system, a process known as the "child-welfare-to-prison pipeline": Ontario Human Rights Commission, Interrupted childhoods: Over-representation of Indigenous and Black children in Ontario child welfare (Toronto: O.H.R.C., 2018), at pp. 27-28. The intervenors conclude, fairly, that "[t]he overincarceration of Indigenous women thus perpetuates the effects of intergenerational trauma and the disruption of Indigenous families and communities".

97The opinion and statistical evidence reinforces the findings of numerous commissions on the plight of Indigenous [page239] peoples in Canada as well as numerous judicial pronouncements by the Supreme Court on the link between colonialism and racism and discrimination against Indigenous people, and their circumstances of poverty, lack of education and overrepresentation within the criminal justice system, as well as discrimination in the prison system and in sentencing: see, as a recent example, Ewert v. Canada, [2018] 2 S.C.R. 165, [2018] S.C.J. No. 30, 2018 SCC 30, at para. 57.

(ii) The evidentiary onus

98Before addressing the merits of the s. 15 claim, I wish to address the evidentiary onus on Ms. Sharma in challenging the impugned provisions.

99One of the reasons the sentencing judge rejected the s. 15 claim was that he observed, at para. 257, that the court had no statistical information, and found that the record before him did not identify "the real measure and likely or established impact" of any adverse effect in order to determine whether it would qualify as a distinction based on Aboriginal status. He also stated that restricting the availability of conditional sentences for crimes with a maximum sentence of 14 years or life and for certain drug offences would have a minimal impact on Aboriginal offenders, and that only in "a very few cases" would Aboriginal offenders be incarcerated where a conditional sentence would also have been appropriate: at para. 256.

100In my view, the sentencing judge's reliance on Ms. Sharma's failure to lead statistical evidence to prove discriminatory impact constitutes an error of law as well as a misapprehension of the available evidence on this critical issue.

101First, with respect to the error of law, the Supreme Court instructed in Taypotat that while the onus remains on the claimant to establish disproportionate and discriminatory effect, "the specific evidence required will vary depending on the context of the claim, but 'evidence that goes to establishing a claimant's historical position of disadvantage' will be relevant": Taypotat, at para. 21, citing Withler, at para. 38. This principle follows the direction in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, [1999] S.C.J. No. 12, that if direct evidence is not available, courts may rely on logical inferences and judicial notice: at para. 77. In this case, it was not necessary to lead statistical evidence to establish that removing the conditional sentence option would disproportionately impact Aboriginal offenders. It was therefore an error of law to require that evidence. [page240]

102In respect of the available evidence, first there was the direct evidence of Dr. Murdocca on the link between systemic discrimination and overrepresentation of Aboriginal people in the criminal justice system in general, and female Aboriginal offenders in particular, because of their specific challenges. Dr. Murdocca also provided direct evidence of the same link to the participation by Aboriginal women in the crime of importing drugs. Second, the sentencing judge was entitled to take judicial notice of the phenomenon of overincarceration of Aboriginal offenders and the fact that systemic discrimination is recognized as a direct cause of that phenomenon in Canada. These matters are beyond any serious controversy, as reflected in the jurisprudence of the Supreme Court.

103Third, even if statistics had been available regarding how many Aboriginal offenders would have received conditional sentences had the impugned provisions not been enacted, they would not have presented a useful picture. A worthwhile set of statistics would have identified the population of Aboriginal offenders who were incarcerated when they otherwise would have been eligible for a conditional sentence. That population of offender would have had to receive a sentence of less than two years, an eligibility criterion for conditional sentencing: Criminal Code, s. 742.1. However, Ms. Sharma was convicted of an offence that attracted a mandatory minimum of two years' imprisonment: CDSA, s. 6(3)(a.1).

104As a consequence, before the trial judge struck down the mandatory minimum sentence in s. 6(3)(a.1) of the CDSA, there would have been no other similarly situated offenders who were incarcerated for fewer than two years, subject to the limited exception in s. 8 of the CDSA. Statistics would accordingly have been unable to capture the impact of the impugned provisions on Aboriginal offenders, as it would be difficult to identify the population that was specifically deprived of a conditional sentencing option.

105The point is that, even in the absence of statistics, the effect of the impugned provisions is to exacerbate the disadvantage experienced by an Aboriginal offender whose background and circumstances, when considered under the Gladue framework, weighed in favour of a conditional sentence had one been available. As the impugned provisions remove an important tool that would have allowed the sentencing judge to give effect to the mandate of s. 718.2(e), this is one of the cases foreseen in Taypotat in which direct statistical evidence was not required to prove Ms. Sharma's claim. [page241]

(iii) Applying part two of the Taypotat analysis

106The Crown's position, which was accepted by the sentencing judge, is that the removal of the conditional sentence for the affected offences does not have the effect of exacerbating the condition of overincarceration of Indigenous offenders and therefore does not implicate substantive equality considerations, because sentencing judges retain the discretion to order other sentencing options such as a suspended sentence and probation. The Crown argues that judges are not prevented from giving effect to the remedial objective of s. 718.2(e) and their role as directed by Gladue and Ipeelee. To quote from the Crown's factum: "Judges are still perfectly able to take on that role. They simply have one less tool at their disposal in specified circumstances."

107Before this court, the Crown argued that even without the availability of conditional sentences, sentencing judges can give effect to the Gladue framework by fixing a prison sentence of an appropriate length. In my view, this submission reflects a misunderstanding of the remedial purpose of s. 15. It is not disputed that the imposition of a prison sentence can reflect the proper balancing of the sentencing objectives of denunciation, deterrence and rehabilitation. The Gladue framework does not undermine that fundamental premise. Rather, it 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 in this appeal, not the respective fitness of custodial and conditional sentences.

The sentencing landscape in the wake of the Safe Streets and Communities Act

108First, I observe that the Crown's suggestion that courts replace conditional sentences with suspended sentences appears to fly in the face of Parliament's stated purpose in enacting the Safe Streets and Communities Act, which was to ensure that offenders go to jail for the affected offences because they represent serious crimes, as I discuss in my analysis under s. 7.

109In any event, I disagree with the Crown's characterization of the sentencing landscape in the wake of the Safe Streets and Communities Act amendments, and with its premise that the continued availability of suspended sentences lessens any adverse impact of the impugned [page242] legislation. The Crown's position fails to acknowledge that suspended sentences and probation differ in important respects from conditional sentences, and that those sanctions are rarely available for the affected offences.

110In Proulx, the Supreme Court explained that a conditional sentence, unlike a suspended sentence, is a jail sentence but served in the community. It serves the functions of deterrence and denunciation: Proulx, at paras. 41, 67. Indeed, conditional sentences may be available even in cases where deterrence and denunciation are the paramount sentencing objectives: R. v. Wells, [2000] 1 S.C.R. 207, [2000] S.C.J. No. 11, 2000 SCC 10, at para. 35. A suspended sentence, on the other hand, is intended to promote rehabilitation and is normally imposed where deterrence and denunciation are not needed for the particular offender in the particular circumstances, or where there are exceptional circumstances: Proulx, at paras. 32-36; see Criminal Code, ss. 731(1), 732.1 and 732.2.

111In support of its position, the Crown placed significant weight on its contention that in the ordinary course, sentencing judges would be unlikely to impose conditional sentences for serious offences like those captured by s. 742.1(c) and (e)(ii). Of course, a conditional sentence was never available where the appropriate sentence in all the circumstances of the case was two years' imprisonment or more. It is only in cases where the appropriate sentence is less than two years that a conditional sentence is available. Therefore, it is only in cases where the offence is one included in the ambit of the two impugned sections, but the circumstances of the commission of the offence do not call for a penitentiary-length sentence that the impugned provisions have removed the option of a conditional sentence. The issue whether all the included offences are "serious" is discussed below in the context of s. 7.

112However, to the extent that the included offences are considered to be serious offences, in Ipeelee, the Supreme Court made clear that Gladue principles must be applied in every case, irrespective of the seriousness of the offence. Failure to do so would "deprive s. 718.2(e) of much of its remedial power, given its focus on reducing overreliance on incarceration": Ipeelee, at para. 86. The duty of the sentencing judge is to consider the unique circumstances of Aboriginal offenders in every case, including serious ones, to ensure a fit and proportionate sentence. [page243]

The limited availability of suspended sentences

113Furthermore, even if conditional and suspended sentences were equivalent sanctions, the case law demonstrates that suspended sentences are far more difficult to obtain than conditional sentences for Aboriginal and other marginalized offenders.

114The intervenor the Criminal Lawyers' Association ("CLA") points out that where a conditional sentence is unavailable, courts are resorting to a prison sentence, even when it is not required. It cites as examples R. v. Castelein, [2018] M.J. No. 57, 2018 MBQB 37; R. v. Diabikulu, [2016] B.C.J. No. 2622, 2016 BCPC 390; and R. v. Clunis, [2018] O.J. No. 1627, 2018 ONCJ 194. In those cases, jail sentences were imposed on a single mother with no prior criminal record who took significant steps toward rehabilitation after her arrest for drug offences, on a 23-year-old black man with no adult record, and on a young marginalized first offender, all because a conditional sentence in the community was not an available sentence.

115Moreover, the CLA explains that sentencing judges rarely and inconsistently find exceptional circumstances warranting suspended sentences and that such sentences are disproportionately unavailable for marginalized offenders, because the effects of discrimination are viewed as "common" rather than "rare", exceptional circumstances are very difficult to demonstrate from custody, and exceptional circumstances ignore racism and stereotyping.

116On this issue, the CLA identified and assessed 59 cases where an offender asked for a suspended sentence based on exceptional circumstances, in order to determine what types of circumstances have qualified. These included significant rehabilitation, overcoming addiction, youthfulness, lack of criminal record, gainful employment, remorse, character reference letters, education, familial and community support, compliance with bail conditions and guilty pleas. However, according to the CLA, these factors are applied in an unpredictable manner, making the availability of a suspended sentence unreliable as an alternative to incarceration.

117More importantly, the types of factors required for a suspended sentence effectively exclude many, if not most, marginalized offenders, including Aboriginal offenders and especially Aboriginal women.

118First, courts have viewed circumstances arising from systemic discrimination as commonplace and therefore not exceptional, thereby treating the most sympathetic [page244] circumstances as ineffective in the calculus of qualification for a suspended sentence: see, e.g., R. v. McIvor, [2019] M.J. No. 90, 2019 MBCA 34, at para. 64; Clunis, at paras. 23, 26.

119Second, because Indigenous people are disproportionately denied bail and are less likely to be rehabilitated in custody, as the court in Gladue acknowledged, at paras. 65 and 68, they are less likely to meet the exceptional circumstances criteria. For example, in the 59 cases that were identified by the intervenor where a suspended sentence was requested, the offender received such a sentence in 27 cases, and in each one, the offender was on bail and consequently able to overcome addiction, attend rehabilitative programs, obtain employment, or engage in other productive activities.

120Third, the requirements for employment and lack of a criminal record again effectively exclude marginalized people whose circumstances of unemployment and criminal activity are affected by racism and systemic discrimination. Simply put, the determination of the appropriateness of a suspended sentence differs in important respects from the conditional sentencing calculus and often works to the disadvantage of Aboriginal offenders.

121In concluding his analysis for dismissing the s. 15 application, the sentencing judge nevertheless found suspended sentences to be an acceptable alternative to conditional sentences, stating, at para. 262:

In the aftermath of the [Safe Streets and Communities Act's] restriction on the availability of conditional sentences, various courts have accepted that a suspended sentence and probation, as opposed to incarceration, is an appropriate alternative in the absence of the conditional imprisonment option -- see, for example, [R. v. Neary, [2017] S.J. No. 147, 2017 SKCA 29, 37 C.R. (7th) 95, leave to appeal to S.C.C. refused [2017] S.C.C.A. No. 254; R. v. Dickey, [2016] B.C.J. No. 815, 2016 BCCA 177, 335 C.C.C. (3d) 478; R. v. Voong, [2015] B.C.J. No. 1335, 2015 BCCA 285, 325 C.C.C. (3d) 267; and R. v. Elliott, [2017] B.C.J. No. 1101, 2017 BCCA 214, 349 C.C.C. (3d) 1].

122In some of these cases, the judges were indeed able to find exceptional circumstances in order to impose a suspended sentence. However, I would respectfully disagree with the sentencing judge that those courts found a suspended sentence to be an alternative to a conditional sentence. In R. v. Voong, [2015] B.C.J. No. 1335, 2015 BCCA 285, the Court of Appeal for British Columbia expressly acknowledged that it is a legal error to simply substitute a suspended sentence for a conditional sentence, as the two types of sentence are governed by different principles: at para. 62. [page245]

Conclusion on the limited availability of suspended sentences

123In my view, the position of the Crown, the analysis of the sentencing judge, and the result in this case provide the clearest indication of why a suspended sentence cannot be viewed as an available alternative to a conditional sentence.

124The sentencing judge specifically declined to impose a suspended sentence for Ms. Sharma, given the gravity of the offence of importing cocaine. He stated, at paras. 264-65:

The gravity of the offence of importing cocaine requires a sentencing court to impose a disposition proportionate to the seriousness of the crime. A sentencer's consideration of factors personal to an offender, including her degree of responsibility, moral blameworthiness and particular mitigating circumstances cannot be allowed to diminish recognition of the gravity of the offence to the point of unwarranted imbalance where principles of denunciation and deterrence are reduced to hollow talking points only.

A suspended sentence and probation, an intermittent sentence of imprisonment, or a sentence of less incarceration than a global sentence of 18 months would not amount to a fit sentence.

125As part of the justification for the 18-month sentence, the sentencing judge referred to Ms. Sharma's intergenerational survival of the residential school regime, together with the following eight specific factors that would militate in favour of a sentence more focused on rehabilitation, at para. 266:

(1) [Ms. Sharma] is a first offender;

(2) she was aged 20 when the offence was committed;

(3) a guilty plea was entered;

(4) as the single mother of a two-year-old child, the offender's motivation to commit the offence arose in desperate financial circumstances where she was unemployed and facing imminent eviction from her home;

(5) the offender confessed to the RCMP on the date of her arrest;

(6) the offender has been on judicial interim release for over two and one-half years and has relocated to Christian Island;

(7) incarceration of the offender will separate her from her daughter -- while family can care for the child, the offender's incarceration perpetuates a generational pattern of separation from family; [page246]

(8) the offender is a low risk to reoffend and has made rehabilitative efforts since arrest.

126But these factors, which included many that have been found to constitute exceptional circumstances in other cases, were not sufficient for the sentencing judge to impose a suspended sentence instead of a jail term. Critically, consideration of Ms. Sharma's circumstances as an Aboriginal offender and the Gladue principles did not overcome the prominence of the sentencing principles of denunciation and deterrence because of the sentencing judge's view of the seriousness of the offence in this case.

127The Crown argues that in this case, because prison was the appropriate sentence for Ms. Sharma after applying the Gladue and Ipeelee frameworks, the fact that a conditional sentence was not available did not worsen the crisis of overrepresentation. This submission ignores the fact that after considering the Gladue factors, the sentencing judge found, as submitted to him by the Crown, that a suspended sentence was not available, and therefore he had to impose a custodial sentence. Contrary to the Crown's submission, this case demonstrates that for a female Aboriginal offender whose background and circumstances, when considered under the Gladue framework, would have pointed toward a conditional sentence had it been available, the effect of the impugned provisions is to exacerbate her disadvantage as an Aboriginal person by removing the one remedy that would have allowed the sentencing judge to give effect to the mandate of s. 718.2(e).

The Crown's overarching position

128The Crown's overarching opposition to the s. 15 application is its "floodgates" position that Ms. Sharma's argument amounts to saying that, "because of Indigenous overrepresentation in the criminal justice system, any Parliamentary enactment of general application that makes the criminal law more stringent necessarily violates s. 15" (emphasis in original), and, as a consequence, Parliament can never make the criminal law more stringent, only more lenient. For example, a Criminal Code amendment increasing a maximum sentence for a given offence would risk running afoul of s. 15 if this court accepted Ms. Sharma's arguments.

129I would strongly reject this contention. It is based on a misunderstanding of Ms. Sharma's position and of the s. 15 analysis. As the Supreme Court explained in Gladue, the purpose of s. 718.2(e) is to address the issue of Aboriginal [page247] overincarceration by providing a sentencing directive of restraint, a mandate to consider in every case the circumstances of an Aboriginal offender because they arise in part from the history of systemic discrimination, and an available remedy in s. 742.1 of a conditional sentence to be served in the community, where appropriate in all the circumstances. By reducing overincarceration, these provisions are intended to also affect the larger issue of Aboriginal overrepresentation in the criminal justice system. But the provisions are focused directly on sentencing.

130The relationship between ss. 718.2(e) and 742.1 in sentencing is well established. The conditional sentence is a central tool given to sentencing judges to apply the Gladue factors. By restricting the availability of the conditional sentence, the impugned amendments deprive the court of an important means to redress systemic discrimination against Aboriginal people when considering an appropriate sanction. Criminal Code amendments that make the criminal law more stringent or that increase a maximum sentence for an offence would not have the same effect. Section 742.1(c) and (e)(ii) undermine the purpose of the Gladue framework, exacerbating and perpetuating the discriminatory disadvantage of Aboriginal offenders in the sentencing process.

131Accordingly, for all of these reasons, I cannot accept the Crown's contention that the impugned provisions of the Safe Streets and Communities Act do not impair the ability of sentencing judges to consider alternatives to imprisonment when sentencing Aboriginal offenders. To the contrary, the Act deals a significant blow to the remedial policy that Parliament enacted in s. 718.2(e) of the Criminal Code. When amending remedial policies, Parliament must not do so in a discriminatory fashion: Alliance, at paras. 36-37.

132The intent of the Act is to incarcerate offenders convicted of certain offences. The reality is that the Act will result in more Indigenous offenders serving their sentences in jail rather than in their communities. Thus, I conclude that s. 742.1(c) and (e)(ii) deny the benefit of a conditional sentence in a manner that has the effect of reinforcing, perpetuating or exacerbating the disadvantage of Aboriginal offenders, and is therefore contrary to s. 15 of the Charter.

G. Section 7

133Ms. Sharma also asks this court to find the impugned provisions to be contrary to s. 7 of the Charter and not saved by s. 1. Ms. Sharma argues that ss. 742.1(c) and (e)(ii) violate her s. [page248] 7 liberty rights because they are arbitrary and overbroad relative to the legislative purpose. I agree.

(1) Argument raised for the first time on appeal

134As discussed above, although Ms. Sharma's constitutional challenge before the sentencing judge involved both ss. 7 and 15, following the presentation of evidence, counsel for Aboriginal Legal Services, who had carriage of the Charter arguments for Ms. Sharma, advised the sentencing judge that s. 7 was not being pursued. Before this court, Ms. Sharma again raised the issue of s. 7 in her notice of appeal, and the material filed on the appeal by all parties, including by the intervenors, addresses s. 7.

135Because the Crown's initial position was that this court should not hear the s. 7 challenge for the first time on appeal, the court heard argument on that issue at the opening of the appeal, retired to consider the issue, and announced its decision to entertain the s. 7 argument, with reasons to follow.

136In Guindon v. Canada, [2015] 3 S.C.R. 3, [2015] S.C.J. No. 41, 2015 SCC 41, at paras. 20 and 22, the Supreme Court gave guidance to appellate courts on how to deal with this issue. An appellate court has discretion to hear a new issue on appeal, including a constitutional issue, but the test for doing so is a stringent one, and the court's discretion should not be exercised routinely or lightly: at para. 22. The court set out, at para. 20, the factors that will influence a court's discretion to hear a new constitutional issue on appeal:

Whether to hear and decide a constitutional issue when it has not been properly raised in the courts below is a matter for the Court's discretion, taking into account all of the circumstances, including the state of the record, fairness to all parties, the importance of having the issue resolved by this Court, its suitability for decision and the broader interests of the administration of justice.

137We were satisfied that these considerations weighed in favour of hearing the s. 7 challenge in this appeal. Importantly, during oral argument, the Crown conceded that it would suffer no prejudice from an adjudication of the s. 7 issue. The parties built the evidentiary record at trial on the basis that the s. 7 issue would proceed. Similarly, on this appeal, the parties all submitted materials to this court to be used if the s. 7 challenge went forward. They addressed s. 7 in their written material and prepared to make oral submissions. We had the benefit of knowledgeable intervenors representing affected stakeholders to assist with all aspects of the issue. The court also prepared to hear the issue, which was ripe for decision on a rich evidentiary [page249] record, together with the s. 15 challenge. We concluded, therefore, that it was in the interest of the administration of justice for the court to proceed to hear and decide the issue.

(2) The legal principles

138Section 7 of the Charter guarantees that:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

139Both parties agree that Ms. Sharma has suffered a deprivation of liberty because she was sentenced to jail. The issue is whether that deprivation of liberty was in accordance with the principles of fundamental justice. Ms. Sharma submits that the deprivation was not in accordance with the principles against arbitrariness and overbreadth.

140These two principles were explained by the Supreme Court in Canada (Attorney General) v. Bedford (2013), 128 O.R. (3d) 385, [2013] 3 S.C.R. 1101, [2013] S.C.J. No. 72, 2013 SCC 72, at paras. 111 and 112, as follows:

Arbitrariness asks whether there is a direct connection between the purpose of the law and the impugned effect on the individual, in the sense that the effect on the individual bears some relation to the law's purpose. There must be a rational connection between the object of the measure that causes the s. 7 deprivation, and the limits it imposes on life, liberty, or security of the person ([Hamish Stewart, Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms, 1st ed. (Toronto: Irwin Law, 2012)], at p. 136). A law that imposes limits on these interests in a way that bears no connection to its objective arbitrarily impinges on those interests. Thus, in [Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, [2005] S.C.J. No. 33, 2005 SCC 35], the law was arbitrary because the prohibition of private health insurance was held to be unrelated to the objective of protecting the public health system.

Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose. In this sense, the law is arbitrary in part. At its core, overbreadth addresses the situation where there is no rational connection between the purposes of the law and some, but not all, of its impacts. For instance, the law at issue in [R. v. Demers, [2004] 2 S.C.R. 489, [2004] S.C.J. No. 43, 2004 SCC 46] required unfit accused to attend repeated review board hearings. The law was only disconnected from its purpose insofar as it applied to permanently unfit accused; for temporarily unfit accused, the effects were related to the purpose.

(Emphasis in original)

141I note at the outset that the Supreme Court has held that challenges to sentencing legislation from the perspective of proportionality ought generally to rely on the gross disproportionality standard that developed in the jurisprudence under s. 12, the Charter's guarantee against cruel and unusual [page250] punishment: R. v. Lloyd, [2016] 1 S.C.R. 130, [2016] S.C.J. No. 13, 2016 SCC 13, at paras. 40-42. Nevertheless, sentencing legislation remains vulnerable to a s. 7 challenge on the basis of overbreadth or arbitrariness, as the court accepted in a decision released on the same day as Lloyd: R. v. Safarzadeh-Markhali (2016), 141 O.R. (3d) 35, [2016] 1 S.C.R. 180, [2016] S.C.J. No. 14, 2016 SCC 14. As Ms. Sharma's appeal raises issues of overbreadth and arbitrariness, it is fit for adjudication under s. 7.

(3) The purpose of the impugned legislation

142In order to assess whether a law is either arbitrary or overbroad, the first step is to determine the purpose of the law, because both tests involve an analysis of the relationship between the law's effects and its legislative objective. In Safarzadeh-Markhali, at para. 31, the court set out the three sources for determining an impugned law's purpose for the overbreadth analysis: statements of purpose in the legislation; the text, context and scheme of the legislation; and extrinsic evidence such as legislative history and evolution.

143A number of courts have already opined on the purpose of the Safe Streets and Communities Act. In R. v. Neary, [2017] S.J. No. 147, 2017 SKCA 29, leave to appeal to S.C.C. refused [2017] S.C.C.A. No. 254, at para. 35, the Court of Appeal for Saskatchewan identified four broad purposes of the Act:

(a) providing consistency and clarity to the sentencing regime;

(b) promoting of public safety and security;

(c) establishing paramountcy of the secondary principles of denunciation and deterrence in sentencing for the identified offences;

(d) treating of non-violent serious offences as serious offences for sentencing purposes.

144The parties have accepted this statement of the purposes of the Act in this appeal. However, it is up to this court to determine the purpose of the specific impugned provisions, using the three tools identified by the Supreme Court.

145Turning to those tools, in March 2012, the Safe Streets and Communities Act received royal assent as an omnibus bill which amended several Acts, including the CDSA; the Criminal Code; the State Immunity Act, R.S.C. 1985, c. S-18; the Corrections and Conditional Release Act, S.C. 1992, c. 20; the Youth Criminal Justice Act, S.C. 2002, c. 1; and the Immigration and Refugee Protection Act, S.C. 2001, c. 27. These amendments [page251] included the conditional sentence amendments relevant to this appeal, at s. 34. With respect to the conditional sentence amendments, the Safe Streets and Communities Act summarizes the changes in its preamble as follows:

Part 2 amends the Criminal Code to

(e) eliminate the reference, in section 742.1, to serious personal injury offences and to restrict the availability of conditional sentences for all offences for which the maximum term of imprisonment is 14 years or life and for specified offences, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years.

146The Minister of Justice and his Parliamentary Secretary at the time explained to Parliament the purpose of the changes to s. 742.1 of the Criminal Code in a number of speeches before the House of Commons. On September 21, 2011, at second reading, Mr. Robert Goguen, the Parliamentary Secretary, stated that in drafting the Safe Streets and Communities Act, "This government is addressing the concerns of Canadians who no longer want to see conditional sentences used for serious crimes, whether they are violent crimes or property crimes": House of Commons Debates, 41-1, vol. 146, No. 17 (21 September 2011), at 1755. On October 6, 2011, the Minister stated, House of Commons, Standing Committee on Justice and Human Rights, Evidence, 41-1, No. 4 (October 6, 2011), at 0910:

[A]s you can see by the bill before you, the bill is very specific that with the most serious offences within the Criminal Code, you will not be eligible to go home afterward. There are and will continue to be serious consequences.

Again, I think this helps people's confidence in the criminal justice system. We all have a stake in seeing that people have confidence in our justice system, and also in our political system.

(Emphasis added)

147Subsequently, on March 6, 2012, during consideration of Senate amendments to the bill, the Minister expressed the purpose of the legislation in the House of Commons in the following terms, House of Commons Debates, 41-1, vol. 146, No. 90 (March 6, 2012), at 1025, 1035:

As Minister of Justice and Attorney General of Canada, it is my responsibility to maintain the integrity of the justice system. We need legislation that is responsive to what is happening on our streets and meets the expectations of Canadians in the 21st century. The proliferation of drugs and violent crime is, unfortunately, a reality in this day and age and it is our job as parliamentarians to deal with criminals, to protect society and do whatever we can to deter crime.

. . . . . [page252]

The bill deals also with conditional sentences, usually referred to as house arrest. Our legislation would ensure that serious crimes such as sexual assault, kidnapping and human trafficking would not result in house arrest. Conditional sentences would continue to be unavailable for any offence with a mandatory minimum penalty. In addition, a conditional sentence would never be available for offences with a maximum of 14 years or life imprisonment; or for offences with a maximum penalty of 10 years that result in bodily harm or involve the import, export, trafficking or production of drugs or involve the use of a weapon; nor for a range of other offences including kidnapping, theft over $5,000 or motor vehicle theft. Our act would ensure that serious offences, including serious property offences like arson, would also not result in house arrest. This would ensure that jail sentences for such offences are served in jail.

(Emphasis added)

148The specific provisions in s. 742.1(c) and (e)(ii) remove two groups of offences from the offences for which a conditional sentence may be imposed. From the context of the amendments and statements by the Minister about the intent and purpose of the legislation, I discern that the purpose of the two impugned provisions is to maintain the integrity of the justice system by ensuring that offenders who commit serious offences receive prison sentences. The means by which the legislation implements Parliament's purpose is by removing the availability of a conditional sentence for offences where the maximum penalty is 14 years or life or ten years in the case of offences involving the import, export, trafficking or production of drugs.

149Maintaining the distinction between the objective of the law and the means chosen to achieve it is significant in the s. 7 analysis: R. v. Moriarity, [2015] 3 S.C.R. 485, [2015] S.C.J. No. 55, 2015 SCC 55, at para. 27. While the means chosen can shed light on the purpose of the law, a narrow articulation of the purpose amounting to a virtual repetition of the challenged provision risks eroding the distinction between ends and means and may "effectively foreclose any separate inquiry into the connection between them": Moriarity, at para. 28; see, also, Safarzadeh-Markhali, at para. 27.

(4) Arbitrariness

150Ms. Sharma argues that the impugned provisions are arbitrary because they create a gap in the sentencing range available for the covered offences by removing the middle of the range, thereby forcing judges to impose a sentence that is either too high or too low. She refers to the conditional sentence as the "missing middle", which she equates with the sentencing gap in Nur, and relies on a comment by Moldaver J. in his dissenting reasons in that case. I would reject this argument. [page253]

151In Nur, the firearms offence in s. 95 of the Criminal Code carried a mandatory minimum sentence of three years if prosecuted by indictment as a first offence, but a maximum sentence of one year if prosecuted summarily. The result was a sentencing gap of two years for the same offence, depending on the prosecutorial route chosen. While the majority struck down the provision under s. 12 of the Charter and thus found it unnecessary to consider whether it also violated s. 7, Moldaver J., in his dissenting reasons, would have upheld the provision under both ss. 7 and 12 of the Charter. He declined to find the two-year sentencing gap arbitrary for the purposes of s. 7 because he was satisfied that prosecutorial discretion would be used appropriately to cure any potential arbitrary effect. However, he did not "gainsay the possibility that, in other circumstances, this type of gap might raise s. 7 concerns": at para. 191.

152In my view, even if the purported "missing middle" in this case could be equated to the sentencing gap that existed in s. 95 of the Criminal Code, this submission fails the test for arbitrariness. Parliament's objective was to maintain the integrity of the justice system by ensuring that offenders who commit serious offences receive jail sentences: where a conditional sentence would have been available and imposed in the circumstances, sentencing judges will now substitute a prison sentence. To the extent that Parliament would view a conditional sentence as the middle of the sentencing range, its purpose was to remove that middle option with the intent that judges will impose a more stringent, denunciatory and deterrent sentence. The effect of removing the conditional sentence option is not arbitrary because it coincides with Parliament's purpose.

(5) Overbreadth

153Ms. Sharma also submits that the impugned provisions violate s. 7 of the Charter because they are overbroad. Although the purpose of the amendments was to ensure that serious offences would always attract a custodial sentence, the provisions identify seriousness by focusing on the maximum sentence for an offence (14 years or life imprisonment, or ten years for drug offences involving importing, exporting, trafficking or production) and consequently capture a broad spectrum of offences and underlying criminal conduct that can range from the low to the high end of seriousness or gravity. In other words, Ms. Sharma submits that the maximum sentence for an offence is not an appropriate proxy for its seriousness.

154Ms. Sharma argues that the purpose of providing a significant maximum sentence for many offences in the Criminal [page254] Code is to have that sentence available for egregious cases and circumstances that could arise. It does not indicate that the underlying prohibited conduct is always or even most often going to call for such a sentence. As a result, using a high maximum sentence as a proxy for the seriousness of the offence and the crime is not reasonable and results in overbreadth.

155Ms. Sharma suggests that there are a number of effective and reasonable methods that could have been used to identify serious offences. For instance, a constitutionally valid mandatory minimum is one indicator of the seriousness of an offence: even where the circumstances are particularly sympathetic, the offence is so serious that the minimum sentence is not inappropriate. Another method that Parliament has used is to classify an offence, such as theft, assault and sexual assault, by tiers of severity, thereby subjecting conduct at the serious end of the spectrum to its own sentencing regime. A third method is for Parliament to designate certain aggravating features, such as terrorism, as always serious.

156However, by using the maximum sentence to designate serious offences that require a custodial sentence, Ms. Sharma submits that the legislation includes a number of offences which, while by no means trivial, often attract a low sentence. Counsel for Ms. Sharma researched sentences imposed for five offences for which a conditional sentence is no longer available because they are punishable by a maximum term of 14 years' imprisonment -- forging a passport and possession of counterfeit money contrary to the Criminal Code, and price-fixing, false advertising and deceptive telemarketing contrary to the Competition Act, R.S.C. 1985, c. C-34 -- and found that the longest sentence imposed for any of them was two years (for deceptive telemarketing). The breadth of the sentencing range available for the included offences and the sentences actually imposed for such offences show that they are not always the type of serious offence that the impugned provisions were intended to affect.

157The Crown's position is that Parliament's purpose was to remove the conditional sentence option for serious offences and that the impugned provisions are therefore rationally connected to the amendments' purpose. As discussed in the previous section, however, that position conflates the purpose of the legislation, to maintain the integrity of the justice system by ensuring that offenders who commit serious offences receive jail sentences, with the means used to accomplish it, which is the removal of the conditional sentence option for offences punishable by high maximum penalties. [page255]

158Nevertheless, on the issue of defining which offences are serious, the Crown argues that Parliament was entitled to use the maximum sentence to determine the seriousness of the offence in a generic sense, referring to R. v. Hamilton (2004), 72 O.R. (3d) 1, [2004] O.J. No. 3252 (C.A.), at para. 90, regardless of the underlying conduct of any particular offender. I would reject this submission.

159Since the inception of conditional sentences, this mode of punishment has been subject to two internal limits: the offence must not have attracted a mandatory minimum sentence, and the sentencing judge must have determined that a fit sentence for the offender would be less than two years in prison. On the surface, the Safe Streets and Communities Act amendments purport to restrict the availability of conditional sentences for certain classes of offences. However, the practical impact of the legislation is to alter the sentencing landscape most directly for those offenders convicted of an offence with a high maximum penalty who nevertheless deserved penalties at the low end of the sentencing range, by denying those offenders the availability of a conditional sentence. For more serious offenders who would ordinarily have received a prison sentence exceeding two years, the Safe Streets and Communities Act has no effect on the sentencing landscape, as those offenders could not have received conditional sentences to begin with.

160In this respect, the impact of s. 742.1(c) and (e)(ii) is similar in scope to the impact of the impugned legislation in Safarzadeh-Markhali. That case concerned s. 719(3.1) of the Criminal Code, which denied enhanced sentencing credit for days spent in pre-trial detention to an offender who was refused bail because of previous convictions, and that was endorsed on the offender's record pursuant to s. 515(9.1). Writing for a unanimous court, McLachlin C.J.C. found that the legislative purpose of s. 719(3.1) was "to enhance public safety and security by increasing violent and chronic offenders' access to rehabilitation programs" (emphasis omitted): at para. 47. At para. 53, she held that the law was overbroad because it applied to offenders in circumstances that did not further the legislative purpose:

First, the provision's ambit captures people it was not intended to capture: offenders who do not pose a threat to public safety or security. Section 515(9.1) is broadly worded. It catches any person denied bail primarily for a criminal record, without specifying or even broadly identifying the nature or number of offences that would warrant a s. 515(9.1) endorsement. The section may therefore ensnare persons whose imprisonment does not advance the purpose of the law. For example, a person with two or three convictions for failing to appear in court might be subject to a s. 515(9.1) endorsement, even though he or she did not pose any real threat to public [page256] safety or security. And even if such a person receives greater access to rehabilitative programming and benefits from it, the consequence is not necessarily to improve public safety and security. In short, a s. 515(9.1) endorsement is an inexact proxy for the danger that an offender poses to public safety and security. The Crown says the law casts the net broadly because targeting all offenders with a criminal record is a more practical option than attempting to identify only offenders who pose a risk to public safety and security. But practicality is no answer to a charge of overbreadth under s. 7: Bedford, at para. 113.

161Section 742.1(c) and (e)(ii) are even less precisely tailored to their purpose than the legislation at issue in Safarzadeh-Markhali. As discussed, in a practical sense, the only offenders who face an altered sentencing regime by virtue of the Safe Streets and Communities Act amendments are those whose circumstances would ordinarily militate in favour of a sentence at the lower end of the spectrum. While there will be cases where eliminating the availability of a sentence served in the community and mandating a sentence of imprisonment could meet Parliament's purpose of incarcerating those who commit serious crimes, there will be many other cases where, as in Safarzadeh-Markhali, the impugned provisions will impact people they were not intended to capture.

162The Crown responds that Parliament's intent was to impose jail sentences on offenders convicted of the designated offences, whether or not the circumstances of the crime made their conduct serious criminal conduct. In other words, the consequence applies to serious offences in the abstract, regardless of whether the offence, as committed in any particular case, involves serious criminality.

163I would reject this submission. It is belied by the review of the sources for determining Parliament's intent, as discussed above, which was to ensure that offenders convicted of serious crimes serve their sentences in prison. The intent of the amendments was to promote the integrity of the administration of justice and the public's confidence in it by ensuring that serious crimes are punished with a sufficiently strong sentence, which Parliament deems to be a sentence of incarceration.

164Parliament's chosen proxy for assessing the seriousness of an offence is its maximum sentence. There are, however, a number of problems with that analogy.

165The Crown's submission that this court's reasoning in Hamilton provides a foundation for the use of maximum penalties as a proxy for an offence's seriousness is inconsistent with this court's reasoning in that case and misconceives the sentencing process. In Hamilton, the issue was the determination of a fit sentence for the offence of importing cocaine. In setting out [page257] the analytical framework, Doherty J.A. considered the proportionality requirement under s. 718.1 of the Criminal Code, which provides that "[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender". He stated, at para. 90, that the gravity of the offence is a product of both the potential penalty imposed and the specific features of the commission of the crime:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence. For example, in drug importation cases, the nature and quantity of the drug involved will impact on the gravity of the offence. Some of the factors which increase the gravity of the offence are set out in s. 718.2(a).

(Emphasis added)

166He continued, at para. 91, by explaining that "the degree of responsibility of the offender" addresses the offender's role in carrying out the crime, as well as "any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime".

167When read in context, Doherty J.A.'s acknowledgement that the maximum penalty for an offence can reflect its seriousness in a generic sense was tempered significantly by his concurrent observation that the actual circumstances in which a specific offender committed a specific offence will play a critical role in the determination of seriousness. This description is consistent with the sentencing framework in the Criminal Code and Ms. Sharma's submission that the seriousness of a crime is not determined solely by the maximum penalty, viewed in isolation. Sentencing is not an abstract inquiry and cannot be divorced from the circumstances of the commission of the crime, which will reduce or increase the level of seriousness of the offence in any particular case. Furthermore, I observe that the jurisprudence reflects that while maximum penalties are not reserved for some abstract conception of the worst possible offender, they are nevertheless rarely imposed: R. v. Cheddesingh (2004), 85 O.R. (3d) 78, [2004] 1 S.C.R. 433, [2004] S.C.J. No. 15, 2004 SCC 16, at para. 1; R. v. M. (L.), [2008] 2 S.C.R. 163, [2008] S.C.J. No. 31, 2008 SCC 31, at para. 20.

168Ms. Sharma sought to distinguish the case of Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711, [1992] S.C.J. No. 27, in which the Supreme Court found that a provision of the Immigration Act, 1976, S.C. 1976-77, c. 52, did not violate the principles of fundamental [page258] justice by using conviction of an offence with a maximum penalty of five years or more as a proxy for "serious criminality", so as to prevent a permanent resident from remaining in Canada. I agree that that decision is distinguishable. First, the parties in Chiarelli did not frame their submissions with reference to the principles of fundamental justice that have since crystallized in the jurisprudence and that are raised in this appeal. The court therefore did not address the issue in terms of comparing the purpose of the law with the scope of its impugned effects. Second, that case turned on the proposition that Parliament was entitled to adopt an immigration policy to regulate non-citizens' rights to enter and remain in Canada, and that it was not unfair to deport a person for a crime punishable by five years in prison when that was a known condition for remaining in Canada: at pp. 733-34 S.C.R.

169I note, further, that the relevant immigration legislation, in its modern form, includes as grounds of inadmissibility not only the maximum penalty for an offence, but also the length of the prison term actually imposed on the permanent resident or foreign national: see Immigration and Refugee Protection Act, s. 36(1)(a). The latter measure is intended as a proxy for serious criminality: see Tran v. Canada (Public Safety and Emergency Preparedness), [2017] 2 S.C.R. 289, [2017] S.C.J. No. 50, 2017 SCC 50, at para. 25.

170Finally, the Crown also submits that the legislation is not overly broad in respect of the offence in issue in this appeal to which Ms. Sharma pleaded guilty, importing cocaine, or the offence of aggravated sexual assault, which was specifically addressed by the intervenors HIV & AIDS Legal Clinic Ontario and Canadian HIV/AIDS Legal Network. In respect of importing cocaine, the Crown argues that the need for denunciation and deterrence justifies the removal of the conditional sentence option. In the case of aggravated sexual assault, which the intervenors argue can be committed by non-disclosure of HIV even where the accused takes precautions to prevent transmission and transmission does not occur, the Crown submits that the lesser sentences of a suspended sentence, an intermittent sentence and a fine are still available for less blameworthy cases.

171With respect, in making that argument, the Crown mischaracterizes the conditional sentence as a form of punishment that carries no deterrent or denunciatory effect. Even in cases where deterrence and denunciation are the paramount sentencing objectives, a conditional sentence may be appropriate, depending on "the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the [page259] offender and the community in which the conditional sentence is to be served": Proulx, at para. 114; see, also, Wells, at para. 35. These principles apply equally to the offences of drug importation and aggravated sexual assault.

172Moreover, even if accepted, these submissions do not assist the Crown where the impugned provisions are overbroad in respect of any of the included offences. In Bedford, the court stated that the s. 7 analysis regarding arbitrariness, overbreadth and gross disproportionality is qualitative, not quantitative, and that "a grossly disproportionate, overbroad, or arbitrary effect on one person is sufficient to establish a breach of s. 7": at para. 123.

173In Lloyd, where the Supreme Court struck down the one-year mandatory minimum sentence for a controlled substances offence because it applied in situations where the sentence amounted to cruel and unusual punishment under s. 12 of the Charter, the court suggested two paths to insulate such provisions from Charter non-compliance: at paras. 35-36. Similar paths could apply, with appropriate modification, to the impugned provisions of the Safe Streets and Communities Act. One is to narrow the reach of the law. The other is to provide a residual judicial discretion for exceptional cases. There no doubt are other methods as well. None were applied to the provisions at issue in this appeal.

174I conclude that the impugned provisions are contrary to s. 7 of the Charter because they resulted in the deprivation of Ms. Sharma's liberty in a manner that was not in accordance with the principle of fundamental justice of overbreadth. There is no rational connection between the impugned provisions' purpose and some of their effects.

H. Section 1

175As I have determined that s. 742.1(c) and (e) infringe ss. 7 and 15 of the Charter, the onus falls on the Crown to justify those infringements under s. 1 of the Charter.

176Dealing first with the s. 7 breach, in its written submissions, the Crown recognizes that infringements of s. 7 are "difficult, but not impossible" to justify under s. 1, based on Bedford, at paras. 125-129, and advances no substantive arguments to justify the alleged s. 7 infringement. As a result, I conclude that the s. 7 infringement is not saved under s. 1.

177Turning next to the s. 15 breach, the Crown argues that the provisions meet the four elements of the test set out in R. v. Oakes, [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7, as subsequently restated in Canada (Attorney General) v. Hislop, [page260] [2007] 1 S.C.R. 429, [2007] S.C.J. No. 10, 2007 SCC 10. Although the onus is on the Crown to prove each of these elements, the Crown filed no evidence to substantiate a s. 1 argument.

178Even if the Crown could establish that the provisions have a pressing and substantial objective, in my view, the s. 1 justification fails at the minimal impairment stage of the analysis. The Crown argues that the provisions are minimally impairing of Ms. Sharma's rights because they "only remove one sentencing option of many". As discussed above, they remove the only sentencing alternative to imprisonment that could have been available for this crime and for this offender. As in the game of musical chairs, when the chairs are removed, there is no place left to sit down.

179There is also no basis to find that the deleterious effects of the impugned provisions on Aboriginal people are outweighed by the salutary effect of the provisions. The deleterious effects are serious. These provisions as enacted take no account of the special circumstances of Aboriginal offenders and the need to address their disadvantage based on race that has resulted in the overincarceration of Aboriginal people. The breach of s. 15 is not saved by s. 1.

I. Remedy

180I would strike down s. 742.1(c) and (e)(ii) of the Criminal Code. The Crown did not ask the court to declare the provisions inapplicable only to Aboriginal offenders if it found a breach. In my view, it is for Parliament to determine to what extent, if any, it may re-enact these provisions, bearing in mind the position of other offender groups potentially affected.

181In oral argument, the Crown requested a suspended declaration of invalidity. The Crown has not met the high standard of showing that a declaration with immediate effect would pose a danger to the public or imperil the rule of law: R. v. Boudreault, [2018] 3 S.C.R. 599, [2018] S.C.J. No. 58, 2018 SCC 58, at para. 98. Accordingly, I would apply the declaration of invalidity with immediate effect.

182As for Ms. Sharma, she asks this court to set aside her sentence and substitute a conditional sentence of imprisonment of 24 months less a day, although she has served her sentence of 17 months in prison. The Crown submits that the sentence imposed was a fit sentence and is entitled to deference.

183Having found the provisions that precluded the imposition of a conditional sentence to be in breach of ss. 7 and 15, this court may consider whether a conditional sentence is the appropriate sentence for Ms. Sharma. No deference is owed to the [page261] decision to impose a sentence of imprisonment, as the sentencing judge erred in concluding that a conditional sentence was not available.

184Taking into account Ms. Sharma's personal circumstances as a single mother, her guilty plea, her lack of criminal record, together with the Gladue factors which address her personal history, including her grandmother's attendance at residential school, her survival of sexual violence, her experience in foster care, her lack of education and poverty, as well as her determination to re-educate herself and work to make a good home for her daughter and to maintain her cultural identity, a conditional sentence served in the community would have been an appropriate sentence to achieve the sentencing objectives of s. 718.2(e).

185As a conditional sentence is served in the community, it is often appropriate that it be a somewhat longer sentence to achieve the objectives of deterrence and denunciation as well as rehabilitation. I would therefore set aside the sentence of 17 months in prison and substitute a conditional sentence of 24 months less a day, as suggested by the appellant. However, as Ms. Sharma has completed her sentence of incarceration, further time spent subject to a conditional sentence is not in the interests of justice in light of the time spent in prison.

J. Disposition

186For all of these reasons, I would allow the appeal and declare that ss. 742.1(c) and (e)(ii) of the Criminal Code unjustifiably infringe ss. 7 and 15 of the Charter and are, therefore, of no force or effect.

187I would set aside Ms. Sharma's sentence of 17 months' imprisonment, declare that a conditional sentence of 24 months less a day should have been imposed, but as she has served her custodial sentence, no further time is to be served.

188B.W. MILLER J.A. (dissenting): -- If Parliament enacts legislation expected to benefit an historically disadvantaged group -- legislation it had no obligation to enact -- can a later Parliament amend or repeal it, having concluded the legislation was misconceived? The immediate answer is yes, according to the bedrock constitutional principle that a Parliament cannot bind its successor: Reference re Bowater's Newfoundland Pulp and Paper Mills Ltd., [1950] S.C.R. 608, [1950] S.C.J. No. 26, at p. 640 S.C.R., per Rand J. (concurring), and at p. 657 S.C.R., per Estey J. (concurring). Ordinary legislation is never immune from amendment or repeal. An [page262] interpretation of s. 15(1) of the [Canadian Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-