Supreme Court of Canada

Appeal Heard: March 23, 2022 Judgment Rendered: November 4, 2022 Docket: 39346

Between: His Majesty The King in Right of Canada — Appellant

and

Cheyenne Sharma — Respondent

— and —

Attorney General of British Columbia, Attorney General of Saskatchewan, Aboriginal Legal Services Inc., Federation of Sovereign Indigenous Nations, British Columbia Civil Liberties Association, Queen's Prison Law Clinic, HIV & AIDS Legal Clinic Ontario, HIV Legal Network, Canadian Bar Association, Women's Legal Education and Action Fund Inc., Legal Services Board of Nunavut, Criminal Lawyers' Association (Ontario), Canadian Civil Liberties Association, Native Women's Association of Canada, David Asper Centre for Constitutional Rights, Ontario Native Women's Association, Assembly of Manitoba Chiefs, Canadian Association of Elizabeth Fry Societies, John Howard Society of Canada, Criminal Trial Lawyers' Association and Association québécoise des avocats et avocates de la défense — Interveners

Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

Joint Reasons for Judgment: (paras. 1 to 113) Brown and Rowe JJ. (Wagner C.J. and Moldaver and Côté JJ. concurring)

Dissenting Reasons: (paras. 114 to 260) Karakatsanis J. (Martin, Kasirer and Jamal JJ. concurring)

Indexed as: R. v. Sharma

2022 SCC 39

File No.: 39346.

2022: March 23; 2022: November 4.

Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

on appeal from the court of appeal for ontario

Constitutional law — Charter of Rights — Right to equality — Discrimination based on race — Right to liberty — Fundamental justice — Sentencing — Aboriginal offenders — Conditional sentences — Aboriginal offender pleading guilty to importing cocaine and seeking conditional sentence — Offender challenging constitutionality of Criminal Code provisions making conditional sentences unavailable for certain serious offences and categories of serious offences — Sentencing judge holding conditional sentence unavailable for offender and dismissing Charter challenge — Court of Appeal striking down impugned provisions on basis that they are overbroad and discriminate against Aboriginal offenders — Whether unavailability of conditional sentence infringes offender's Charter‑protected rights — Canadian Charter of Rights and Freedoms, ss. 7, 15(1) — Criminal Code, R.S.C. 1985, c. C‑46, ss. 718.2(e), 742.1(c), 742.1(e)(ii).

In 2015, S, a woman of Ojibwa ancestry and a member of the Saugeen First Nation, arrived in Toronto on an international flight. Her suitcase was found to contain 1.97 kilograms of cocaine. She confessed that her partner had promised to pay her $20,000 to bring the suitcase to Canada, and pleaded guilty to importing a Sch. I substance contrary to s. 6(1) of the Controlled Drugs and Substances Act. At the time, S was 20 years old, with no prior criminal record, and was two months behind on rent and facing eviction. S had become a single mother at 17, had few supports, and the prospect of homelessness for her child motivated her to agree to import the drugs. A pre‑sentence (Gladue) report also noted that S's grandmother was a residential school survivor, S's mother had spent time in foster care, S had been sexually assaulted, and she had dropped out of school due to financial difficulties.

S sought a conditional sentence. Conditional sentences are a type of incarceration, provided for under s. 742.1 of the Criminal Code, that permit offenders who meet statutory criteria to serve their sentences under strict surveillance in their communities, rather than in jail. In 2012, Parliament amended the conditional sentencing regime to make such sentences unavailable for certain serious offences. Three prerequisites must be met before a conditional sentence can be imposed: the offender must not have been convicted of one of the offences listed at paras. 742.1(b) through (f) of the Criminal Code; a court would have otherwise imposed a sentence of imprisonment of fewer than two years; and the safety of the community would not be endangered by the offender serving the sentence in the community. Where these prerequisites are met, a court must consider whether a conditional sentence is appropriate, having regard to the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. In particular, s. 718.2(e) provides 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 2012 amendments to the Criminal Code prevented S from receiving a conditional sentence. In particular, s. 742.1(c) made conditional sentences unavailable for any offence with a maximum term of imprisonment of 14 years or life, such as the offence to which S pleaded guilty. S brought Charter challenges against s. 742.1(c) and against s. 742.1(e)(ii), which made conditional sentences unavailable for offences, prosecuted by indictment, having a maximum term of imprisonment of 10 years and involving the import, export, trafficking, or production of drugs. The sentencing judge held that a conditional sentence was unavailable to S, dismissed her Charter challenges under ss. 7 and 15, and imposed a sentence of 18 months' imprisonment. A majority of the Court of Appeal held that ss. 742.1(c) and 742.1(e)(ii) were overbroad under s. 7 and discriminated against Indigenous offenders like S under s. 15(1). It struck down the provisions and sentenced S to time served.

Held (Karakatsanis, Martin, Kasirer and Jamal JJ. dissenting): The appeal should be allowed and the sentence imposed at first instance restored.

Per Wagner C.J. and Moldaver, Côté, Brown and Rowe JJ.: Sections 742.1(c) and 742.1(e)(ii) are constitutional. They do not limit S's s. 15(1) Charter rights; S did not demonstrate that the impugned provisions created or contributed to a disproportionate impact on Indigenous offenders, relative to non‑Indigenous offenders, as she must show at the first step of the s. 15(1) analysis. Nor do they limit S's s. 7 Charter rights. Their purpose is to enhance consistency in the conditional sentencing regime by making imprisonment the typical punishment for certain serious offences and categories of offences, and that is what they do. Maximum sentences are a reasonable proxy for the seriousness of an offence and, accordingly, the provisions do not deprive individuals of their liberty in circumstances that bear no connection to their objective.

The two‑step test for assessing a s. 15(1) claim requires the claimant to demonstrate that the impugned law or state action a) creates a distinction based on enumerated or analogous grounds, on its face or in its impact; and b) imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage. This framework also applies in cases of adverse impact discrimination, which occurs when a seemingly neutral law has a disproportionate impact on members of groups protected on the basis of an enumerated or analogous ground. However, uncertainty in the evidentiary burden in adverse impact cases has arisen when courts collapse the two steps of analysis into one. The two steps are not watertight compartments or impermeable silos, since each step considers the impact of the impugned law on the protected group. While there may be overlap in the evidence at each step, the two steps ask fundamentally different questions. As such, the analysis at each step must remain distinct from the other. While Karakatsanis J. stresses the "touchstone" of substantive equality, a court's focus must ultimately be directed to the two‑step test. Where, applying that test, the claimant's burden at either step of s. 15(1) is not met, there is no infringement of s. 15 and therefore no substantively unequal outcome.

The first step for assessing a s. 15(1) claim examines whether the impugned law creates or contributes to a disproportionate impact on the claimant group based on a protected ground. The disproportionate impact requirement necessarily introduces comparison into the first step, and causation is a central issue. The claimant must establish a link or nexus between the impugned law and the discriminatory impact, but does not need to show why the law being challenged has that impact. Two types of evidence are helpful: evidence about the full context of the claimant group's situation, and evidence about the outcomes that the impugned law or policy has produced in practice. Ideally, claims of adverse impact discrimination should be supported by both. To give proper effect to the promise of s. 15(1), however, a claimant's evidentiary burden cannot be unduly difficult to meet. Courts should bear in mind that: no specific form of evidence is required; the claimant need not show the impugned law or state action was the only or the dominant cause of the disproportionate impact; the causal connection may be satisfied by a reasonable inference; scientific evidence of causation should be carefully scrutinized; and novel scientific evidence should be admitted only if it has a reliable foundation.

The second step asks whether that impact imposes burdens or denies benefits in a manner that has the effect of reinforcing, perpetuating, or exacerbating a disadvantage. Not every distinction is discriminatory. Courts must examine the historical or systemic disadvantage of the claimant group. Leaving the situation of a claimant group unaffected is insufficient to meet the step two requirement: a negative impact or worsened situation is required. Several factors may assist in determining whether claimants have met their burden at step two: arbitrariness, prejudice, and stereotyping. Concerning arbitrariness, a distinction that is based on an individual's actual capacities will rarely be discriminatory; but a distinction that fails to respond to the actual capacities and needs of the members of the group will often be discriminatory. Stereotyping or prejudice can play a critical role if the impugned law furthers stereotypes and prejudicial notions or stigmatizing ideas about members of a protected group, and, in so doing, perpetuates the disadvantage they experience. With regard to the evidentiary burden at step two, the claimant need not prove that the legislature intended to discriminate, a court may take judicial notice of notorious and undisputed facts, and courts may infer that a law has a discriminatory effect, where such an inference is supported by the available evidence.

In addition, to determine whether a distinction is discriminatory under the second step, courts should consider the broader legislative context. Relevant considerations include: the objects of the scheme, whether a policy is designed to benefit a number of different groups, the allocation of resources, particular policy goals sought to be achieved, and whether the lines are drawn mindful as to those factors. A contextual approach is particularly significant when analyzing the constitutionality of sentencing regimes. As for the scope of the government's obligation under s. 15(1), there is no general, positive obligation on the state to remedy social inequalities or enact remedial legislation, nor is the legislature bound to its current policies. Furthermore, when the state does legislate to address inequality, it can do so incrementally.

In the instant case, S has not satisfied her burden at the first step, and thus there is no need to consider step two. Section 15(1) is not infringed. The impugned provisions do not create or contribute to a disproportionate impact on S as an Indigenous offender. While the crisis of Indigenous incarceration is undeniable, S adduced no statistical information to demonstrate that the impugned provisions create or contribute to increased imprisonment of Indigenous offenders, relative to non‑Indigenous offenders. The sentencing judge was required to, and did, take account of the particular circumstances of Indigenous offenders, and that is what Parliament has directed in s. 718.2(e). However, this provision does not guarantee that Indigenous offenders will not receive carceral sentences. While it sets out an important policy, it is a legislative provision, not a constitutional imperative.

With respect to s. 7, the impugned provisions limit S's liberty interests; the question is whether they do so in a manner that accords with the principles of fundamental justice — i.e., whether they are arbitrary or overbroad. As the law's purpose is the principal reference point, its proper identification is crucial. It is important to characterize this purpose at the appropriate level of generality, and the framing of purpose must be precise and succinct. The most significant and reliable indicator would be a statement of purpose within the subject law, but courts can also look to the text, context, and scheme of the legislation, and extrinsic evidence. Extrinsic evidence should be used with caution: statements of purpose in the legislative record may be rhetorical and imprecise, or poor indicators of purpose. What is to be identified is Parliament's purpose, not the purposes of its individual members. Courts should strive to arrive at a precise and succinct statement that faithfully represents the legislative purpose. Overly broad statements can artificially make impugned provisions unassailable to arguments of overbreadth or arbitrariness. In the instant case, it is clear, from the text, context, scheme and extrinsic evidence, that the purpose of the amendments was to enhance consistency in the conditional sentencing regime by making imprisonment the typical punishment for certain serious offences. The means by which Parliament achieved this purpose was to remove the availability of a conditional sentence for those offences. The effect of the amendments is to reduce the number of sentences served in the community.

A law is overbroad when it imposes limits in a manner that is not rationally connected to the purpose of the law. Given the impugned provisions' purpose, they are not overbroad. First, maximum sentence is a suitable proxy for offence seriousness. Second, the definition of a serious offence is a normative assessment for which Parliament must be granted significant leeway. Finally, the seriousness of an offence should not be confused with the circumstances of an offender; while the circumstances which led S to import drugs are tragic and attenuate her moral culpability, those facts do not make her offence any less serious.

As for arbitrariness, it exists where there is no connection between the effect of a provision and its purpose. The impugned provisions are not arbitrary. Their purpose is to enhance consistency in the conditional sentencing regime by making imprisonment the typical punishment for certain serious offences. Where a sentencing judge determines that jail is warranted, offenders convicted of those offences will serve their sentences in jail, rather than in the community. There is an obvious connection between the effect of the provisions and their purpose, and S's rights are thus not limited arbitrarily.

Per Karakatsanis, Martin, Kasirer and Jamal JJ. (dissenting): In 1999, the Court called Indigenous overincarceration a crisis in the Canadian criminal justice system. Since then, Indigenous incarceration rates have climbed and those of Indigenous women have soared. Overincarceration is an ongoing source of intergenerational harm to families and communities and a striking sign of the discrimination that Indigenous peoples experience in the criminal justice system. Sentencing law is uniquely positioned to ameliorate the racial inequalities in Canada's criminal justice system. Ensuring that Canadian sentencing provisions are consistent with the liberty and equality guarantees under the Charter is therefore essential. The Court is required to do so in the instant case.

The appeal should be dismissed. Sections 742.1(c) and 742.1(e)(ii) are unconstitutional. They infringe s. 7 because they deprive some individuals of their liberty in a manner that is overbroad: by using maximum sentences as a proxy for the seriousness of an offence, capturing the most and the least serious criminal conduct, they overstep their aim of punishing more serious offences with incarceration. They also infringe s. 15(1) because they impair the remedial effect of s. 718.2(e) — which directs judges to consider alternatives to imprisonment "with particular attention to the circumstances of Aboriginal offenders" — in a manner that creates a distinction on the basis of race, and that reinforces, perpetuates, and exacerbates the historical disadvantages of Indigenous people.

Cases Cited

By Brown and Rowe JJ.

Considered: R. v. Gladue, [1999] 1 S.C.R. 688; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; R. v. C.P., 2021 SCC 19, [2021] 1 S.C.R. 679; Fraser v. Canada (Attorney General), 2020 SCC 28, [2020] 3 S.C.R. 113; Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396; Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17, [2018] 1 S.C.R. 464; referred to: R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; Symes v. Canada, [1993] 4 S.C.R. 695; Weatherley v. Canada (Attorney General), 2021 FCA 158; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Ontario (Attorney General) v. G, 2020 SCC 38, [2020] 3 S.C.R. 629; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; Vriend v. Alberta, [1998] 1 S.C.R. 493; Thibaudeau v. Canada, [1995] 2 S.C.R. 627; Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657; Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61; R. v. Safarzadeh‑Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180; R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424; R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Neary, 2017 SKCA 29, [2017] 7 W.W.R. 730; R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754; R. v. M. (C.A.), [1996] 1 S.C.R. 500; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; R. v. Heywood, [1994] 3 S.C.R. 761; Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392; R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579; R. v. Serov, 2016 BCSC 636, 353 C.R.R. (2d) 264; R. v. Chen, 2021 BCSC 697; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Schachter v. Canada, [1992] 2 S.C.R. 679; Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429; R. v. Morgentaler, [1993] 1 S.C.R. 462; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388; R. v. St‑Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328.

By Karakatsanis J. (dissenting)

Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; R. v. Gladue, [1999] 1 S.C.R. 688; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485; R. v. Neary, 2017 SKCA 29, [2017] 7 W.W.R. 730; R. v. Safarzadeh‑Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366; R. v. Laberge (1995), 1995 ABCA 196, 165 A.R. 375; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90; R. v. Cheddesingh, 2004 SCC 16, [2004] 1 S.C.R. 433; R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Luxton, [1990] 2 S.C.R. 711; R. v. Turtle, 2020 ONCJ 429, 467 C.R.R. (2d) 153; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396; Fraser v. Canada (Attorney General), 2020 SCC 28, [2020] 3 S.C.R. 113; Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17, [2018] 1 S.C.R. 464; Ontario (Attorney General) v. G, 2020 SCC 38, [2020] 3 S.C.R. 629; Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61; R. v. Turpin, [1989] 1 S.C.R. 1296; R. v. Chouhan, 2021 SCC 26, [2021] 2 S.C.R. 136; Miron v. Trudel, [1995] 2 S.C.R. 418; Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18, [2018] 1 S.C.R. 522; R. v. C.P., 2021 SCC 19, [2021] 1 S.C.R. 679; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692; Inglis v. British Columbia (Minister of Public Safety), 2013 BCSC 2309, 298 C.R.R. (2d) 35; Vriend v. Alberta, [1998] 1 S.C.R. 493; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66, [2004] 3 S.C.R. 381; R. v. Oakes, [1986] 1 S.C.R. 103; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567.

Statutes and Regulations Cited

Act to amend the Criminal Code (conditional sentence of imprisonment), S.C. 2007, c. 12, s. 1.

Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22, s. 6.

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

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Criminal Code, R.S.C. 1985, c. C‑46, ss. 57(1), 231(5), 236, 320.13(3), 320.21, 348(1), 450(b), Part XXIII [repl. 1995, c. 22, s. 6], 718 to 718.2, 730(1), 732(1), 742.1 [repl. 2007, c. 12, s. 1; repl. 2012, c. 1, s. 34], 752.01.

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Indian Act, R.S.C. 1985, c. I‑5.

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APPEAL from a judgment of the Ontario Court of Appeal (Feldman, Gillese and Miller JJ.A.), 2020 ONCA 478, 152 O.R. (3d) 209, 390 C.C.C. (3d) 1, 465 C.R.R. (2d) 81, 65 C.R. (7th) 1, [2020] O.J. No. 3183 (QL), 2020 CarswellOnt 10511 (WL), setting aside a decision of Hill J., 2018 ONSC 1141, 405 C.R.R. (2d) 119, 44 C.R. (7th) 341, [2018] O.J. No. 909 (QL), 2018 CarswellOnt 2566 (WL). Appeal allowed, Karakatsanis, Martin, Kasirer and Jamal JJ. dissenting.

Jennifer Conroy and Jeanette Gevikoglu, for the appellant.

Nader R. Hasan and Stephen Aylward, for the respondent.

Micah B. Rankin, for the intervener the Attorney General of British Columbia.

Noah Wernikowski, for the intervener the Attorney General of Saskatchewan.

Jonathan Rudin, for the intervener the Aboriginal Legal Services Inc.

Eleanore Sunchild, K.C., and Michael Seed, for the intervener the Federation of Sovereign Indigenous Nations.

Vincent Larochelle, for the intervener the British Columbia Civil Liberties Association.

Chris Rudnicki and Theresa Donkor, for the intervener the Queen's Prison Law Clinic.

Robin Nobleman and Ryan Peck, for the interveners the HIV & AIDS Legal Clinic Ontario and the HIV Legal Network.

Chantelle van Wiltenburg and Eric V. Gottardi, K.C., for the intervener the Canadian Bar Association.

Alisa Lombard and Aubrey Charette, for the intervener the Women's Legal Education and Action Fund Inc.

Eva Tache‑Green, for the intervener the Legal Services Board of Nunavut.

Promise Holmes Skinner and Andrew Bigioni, for the intervener the Criminal Lawyers' Association (Ontario).

Michelle M. Biddulph and David M. Humphrey, for the intervener the Canadian Civil Liberties Association.

Laura Ezeuka, for the intervener the Native Women's Association of Canada.

Jessica Orkin and Adriel Weaver, for the intervener the David Asper Centre for Constitutional Rights.

Alana Robert and Connor Bildfell, for the intervener the Ontario Native Women's Association.

Carly Fox, for the intervener the Assembly of Manitoba Chiefs.

Emilie Taman, for the intervener the Canadian Association of Elizabeth Fry Societies.

Emily Young and Andrew Max, for the intervener the John Howard Society of Canada.

Kathryn Quinlan, for the intervener the Criminal Trial Lawyers' Association.

Maxime Raymond and Emmanuelle Arcand, for the intervener Association québécoise des avocats et avocates de la défense.

Joint Reasons for Judgment

The judgment of Wagner C.J. and Moldaver, Côté, Brown and Rowe JJ. was delivered by

Brown and Rowe JJ. —

I. Introduction

[ 1 ] Conditional sentences are a form of punishment that allow offenders to serve their sentences in the community, rather than in jail. Parliament created the conditional sentencing regime in 1996. In 2012, it amended the regime to make conditional sentences unavailable for certain serious offences and categories of serious offences. This appeal addresses the constitutionality of certain of those amendments.

[ 2 ] In 2015, Ms. Sharma brought into Canada 1.97 kilograms of cocaine. She pleaded guilty to importing a Sch. I substance contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 ("CDSA"), and sought a conditional sentence. However, the 2012 amendments to the Criminal Code, R.S.C. 1985, c. C-46, made conditional sentences unavailable for offences with a maximum term of imprisonment of 14 years or life (s. 742.1(c)) and for offences, prosecuted by indictment, having a maximum term of imprisonment of 10 years and involving the import, export, trafficking, or production of drugs (s. 742.1(e)(ii)). The sentencing judge held that a conditional sentence was unavailable, and dismissed Ms. Sharma's challenges under ss. 7 and 15(1) of the Canadian Charter of Rights and Freedoms. Ms. Sharma appealed. A majority of the Court of Appeal for Ontario held that the impugned provisions (ss. 742.1(c) and 742.1(e)(ii)) were overbroad under s. 7, and that they discriminated against Indigenous offenders like Ms. Sharma under s. 15(1). The Crown appeals from the Court of Appeal's decision.

[ 3 ] We would allow the appeal and restore the sentencing judge's order. The impugned provisions do not limit Ms. Sharma's s. 15(1) rights. While the crisis of Indigenous incarceration is undeniable, Ms. Sharma did not demonstrate that the impugned provisions created or contributed to a disproportionate impact on Indigenous offenders, relative to non‑Indigenous offenders, as she must show at the first step of the s. 15(1) analysis.

[ 4 ] Nor do the impugned provisions limit Ms. Sharma's s. 7 rights. Their purpose is to enhance consistency in the conditional sentencing regime by making imprisonment the typical punishment for certain serious offences and categories of offences. And that is what they do. Maximum sentences are a reasonable proxy for the seriousness of an offence and, accordingly, the provisions do not deprive individuals of their liberty in circumstances that bear no connection to their objective.

II. Facts

[ 5 ] In June 2015, Ms. Sharma, a woman of Ojibwa ancestry and a member of the Saugeen First Nation, arrived in Toronto on an international flight. Upon inspection, her suitcase was found to contain 1.97 kilograms of cocaine. She confessed that day to the RCMP that her partner had promised to pay her $20,000 to bring the suitcase to Canada. At the time, she was two months behind on rent and facing eviction. Ms. Sharma was 20 years old, with no prior criminal record.

[ 6 ] Ms. Sharma pleaded guilty to importing a Sch. I substance contrary to s. 6(1) of the CDSA. Her sentencing was contested, and the judge ordered a Gladue report. This report revealed a life of significant hardship and intergenerational trauma. She had become a single mother at 17, had few supports, and the prospect of homelessness for her child motivated her to agree to her partner's request. The Gladue report noted that Ms. Sharma's grandmother was a residential school survivor, that Ms. Sharma's mother had spent time in foster care, and that Ms. Sharma had been sexually assaulted and had dropped out of school due to financial difficulties.

III. Legislative Framework

[ 7 ] Conditional sentences are a type of incarceration provided for under s. 742.1 of the Criminal Code. Such sentences permit offenders who meet statutory criteria to serve their sentences under strict surveillance in their communities, rather than in jail.

[ 8 ] Parliament legislated conditional sentences in 1996 in the Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22. The Act significantly reformed sentencing law (R. v. Gladue, [1999] 1 S.C.R. 688, at para. 39), by including an express statement of the purposes and principles of sentencing, by providing for the conditional sentencing regime itself, and by enacting s. 718.2, which sets out considerations for judges to have regard to when determining a fit sentence. In particular, s. 718.2(e) provides 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".

[ 9 ] Parliament's principal objectives in enacting this legislation were to reduce sentences of imprisonment and to expand the use of restorative justice principles in sentencing (Gladue, at para. 48; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 15). Section 718.2(e) and the conditional sentencing regime in s. 742.1 were aimed at achieving these goals (Proulx, at paras. 21, 90 and 127; Gladue, at para. 40; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 31).

[ 10 ] The Court first considered s. 742.1 in Proulx. Under the legislation at that time, offenders were not eligible for a conditional sentence if (1) their offence was punishable by a minimum term of imprisonment; (2) the court would impose a term of imprisonment of more than two years; (3) imposing a conditional sentence would endanger the safety of the community; or (4) imposing a conditional sentence would be inconsistent with the fundamental purposes and principles of sentencing.

[ 11 ] In 2007, Parliament amended s. 742.1 to provide that conditional sentences would also not be available to offenders convicted of a "serious personal injury offence" as defined in s. 752.01, or for offenders convicted of other specific crimes (An Act to amend the Criminal Code (conditional sentence of imprisonment), S.C. 2007, c. 12).

[ 12 ] Parliament again amended s. 742.1 in 2012 in the Safe Streets and Communities Act, S.C. 2012, c. 1, s. 34 ("SSCA"), resulting in the current version of s. 742.1. It reads as follows:

Imposing of conditional sentence

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

(a) the court 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;

(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;

(d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more;

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

(i) resulted in bodily harm,

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

(iii) involved the use of a weapon; and

(f) the offence is not an offence, prosecuted by way of indictment, under any of the following provisions:

(i) section 144 (prison breach),

(ii) section 264 (criminal harassment),

(iii) section 271 (sexual assault),

(iv) section 279 (kidnapping),

(v) section 279.02 (trafficking in persons — material benefit),

(vi) section 281 (abduction of person under fourteen),

(vii) section 333.1 (motor vehicle theft),

(viii) paragraph 334(a) (theft over $5000),

(ix) paragraph 348(1)(e) (breaking and entering a place other than a dwelling‑house),

(x) section 349 (being unlawfully in a dwelling‑house), and

(xi) section 435 (arson for fraudulent purpose).

[ 13 ] While there have been various amendments, the structure of s. 742.1 remains substantially the same as that described in Proulx. In particular, three prerequisites must be met before a conditional sentence can be imposed:

(1) the offender was not convicted of one of the offences listed at paras. 742.1(b) through (f) ("exclusionary provisions");

(2) a court would otherwise impose a sentence of imprisonment of fewer than two years (see Proulx, at paras. 49‑61); and

(3) the safety of the community would not be endangered by the offender serving the sentence in the community (see Proulx, at paras. 62‑76).

[ 14 ] Where these prerequisites are met, a court must consider whether a conditional sentence is appropriate, having regard to the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 (Proulx, at paras. 77‑78).

IV. Judicial History

A. The Sentencing Decision: Ontario Superior Court of Justice, [2018 ONSC 1141](https://www.canlii.org/en/on/onsc/doc/2018/2018onsc1141/2018onsc1141.html), 405 C.R.R. (2d) 119

[ 15 ] Ms. Sharma's sentencing was contested. The Crown provided Ms. Sharma notice of the mandatory minimum sentence (as required by s. 8 of the CDSA) and sought a sentence of six years' imprisonment. Ms. Sharma sought a conditional sentence and community service. Three legislative barriers stood in her way: s. 6(3)(a.1) of the CDSA, which set out a mandatory minimum sentence of two years' imprisonment; s. 742.1(b) of the Criminal Code, which made conditional sentences unavailable for any offence with a mandatory minimum term of imprisonment; and s. 742.1(c) of the Criminal Code, which made conditional sentences unavailable for any offence with a maximum term of imprisonment of 14 years or life. Ms. Sharma brought Charter challenges against all three provisions, alleging that s. 6(3)(a.1) violates s. 12 and that ss. 742.1(b) and 742.1(c) violate ss. 7 and 15 (although she abandoned her s. 7 arguments during oral submissions).

[ 16 ] In light of these constitutional challenges, the Crown unilaterally rescinded the s. 8 CDSA notice (so that the mandatory minimum sentence would not apply to Ms. Sharma). The Crown recommended a sentence of 18 months' imprisonment. While this left the constitutionality of s. 6(3)(a.1) moot, the sentencing judge chose to decide the issue, concluding that it violated s. 12 of the Charter and could not be saved under s. 1. As the mandatory minimum sentence did not apply in the circumstances, the constitutionality of s. 742.1(b) was also moot and was not decided.

[ 17 ] The sentencing judge heard testimony from one expert witness: Dr. Carmela Murdocca. Dr. Murdocca is an Associate Professor in the Department of Sociology at York University and studies "racialization, criminalization and social exclusion of Indigenous and racialized peoples in Canada" (para. 18). Dr. Murdocca's report indicated that "[a]spects of Indigenous women's social, economic and cultural experiences often inform their participation in serious offences" (para. 23). She further opined that "specific indicators", such as economic disadvantage and poverty, may render some Indigenous women "more vulnerable to being conscripted into drug couriering" (para. 25). In this way, Dr. Murdocca's testimony connected drug‑related offences committed by Indigenous women to "the legacies of colonia[l] racism" (para. 25).

[ 18 ] Dr. Murdocca also testified about the unavailability of conditional sentences for certain drug offences. The introduction of mandatory minimum sentences for drug trafficking crimes, together with the removal of conditional sentences for any offence with a mandatory minimum, impeded the sentencing regime's capacity to account for the "contextual and intersectional factors that render Indigenous women vulnerable to [committing] drug crimes" (para. 26).

[ 19 ] The sentencing judge held that the mandatory minimum sentence required by s. 6(3)(a.1) of the CDSA was grossly disproportionate in Ms. Sharma's circumstances, and infringed s. 12. A fit sentence was 18 months' imprisonment. The Crown did not appeal this ruling.

[ 20 ] Addressing s. 15, and having regard to the evidence before him, the sentencing judge dismissed Ms. Sharma's challenge to s. 742.1(c). Ms. Sharma had adduced "no statistical information" on the impact of removing conditional sentences for various offences (para. 257). He questioned whether such impact existed, noting that sentencing judges "maintai[n] a broad discretion to do justice in individual cases including the imposition of less punitive sanctions for serious offences" (para. 258). The length of sentence remains within the discretion of a sentencing judge, and other alternatives to imprisonment remain, including suspended sentences and probation.

B. Court of Appeal for Ontario, [2020 ONCA 478](https://www.minicounsel.ca/oca/2020/478), 152 O.R. (3d) 209

[ 21 ] Ms. Sharma appealed her sentence and the dismissal of her s. 15 challenge to s. 742.1(c); she sought a 24‑month conditional sentence. The Court of Appeal also allowed Ms. Sharma to challenge, for the first time, the constitutionality of s. 742.1(e)(ii). Further, the Court of Appeal allowed Ms. Sharma to renew her s. 7 challenge to s. 742.1(c). The majority allowed Ms. Sharma's appeal, holding that the impugned provisions infringed both ss. 7 and 15, and sentenced her to time served.

[ 22 ] As to s. 15, the majority held that the impugned provisions, while facially neutral, created a distinction between Indigenous and non‑Indigenous offenders. The constitutionality of s. 742.1 could not be determined without understanding s. 718.2(e). As s. 718.2(e) was introduced to address "substantive inequality" in the criminal justice system, undermining its operation by restricting the availability of conditional sentences had the effect of perpetuating substantive inequality (paras. 70 and 79). 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. The effect of the impugned provisions was to exacerbate the disadvantage faced by Indigenous offenders. This was apparent even in the absence of statistical evidence. In the majority's view, it was an error in law for the sentencing judge to require Ms. Sharma to lead statistical evidence to show this.

[ 23 ] With respect to s. 7, the majority found that the impugned provisions' purpose was to "maintain the integrity of the justice system by ensuring that offenders who commit serious offences receive prison sentences" (para. 148). In light of this purpose, the legislation was not arbitrary, but it was overbroad. Parliament intended to ensure offenders who committed serious crimes went to jail, but the impugned provisions jailed offenders "regardless of the underlying conduct of any particular offender" (para. 158). Parliament could have narrowed the reach of the provisions or provided for judicial discretion in exceptional cases, but did not. The Crown advanced no arguments to justify the s. 7 breach under s. 1. Accordingly, the majority struck down the provisions.

[ 24 ] The dissenting judge held that the impugned provisions did not infringe Ms. Sharma's ss. 7 or 15 rights. On s. 15(1), he observed that the proper analytical framework was the subject of controversy. The dissenting judge agreed with the majority that Ms. Sharma's claim met the first step. However, the majority's application of the test would have the effect of "immunizing ordinary legislation from amendment or repeal" (para. 189). This was impermissible. Parliament had no constitutional obligation to establish the conditional sentencing regime and, therefore, must be allowed to repeal it. In his view, Ms. Sharma failed to demonstrate that the impugned provisions were arbitrary or unfair, a necessary element under the second step of the s. 15(1) framework. The legislation did not infringe her s. 15 rights.

[ 25 ] On s. 7, the dissenting judge generally agreed with the majority's characterization of the legislation. Contrary to the majority, he held that the impugned provisions are not overbroad, as Parliament's decision to use maximum sentences as a "rough indicia of seriousness" was appropriate (para. 283).

V. Analysis

[ 26 ] As a preliminary point, we note that, at the Court of Appeal, Ms. Sharma challenged the constitutionality of s. 742.1(c) and s. 742.1(e)(ii). The majority held that Ms. Sharma was "affected by both preclusions" (para. 66). We do not see Ms. Sharma as being affected by s. 742.1(e)(ii), as it applies only to offences for which the maximum term of imprisonment is 10 years. That said, as the majority of the Court of Appeal considered s. 742.1(e)(ii), and as the parties made submissions on it before this Court, we will address its constitutionality.

A. Section 15

[ 27 ] Section 15(1) of the Charter states:

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.

[ 28 ] The two‑step test for assessing a s. 15(1) claim is not at issue in this case. It requires the claimant to demonstrate that the impugned law or state action:

(a) creates a distinction based on enumerated or analogous grounds, on its face or in its impact; and

(b) imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage (R. v. C.P., 2021 SCC 19, [2021] 1 S.C.R. 679, at paras. 56 and 141; Fraser v. Canada (Attorney General), 2020 SCC 28, [2020] 3 S.C.R. 113, at para. 27; Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548, at paras. 19‑20).

[ 29 ] While this framework is set out in the above‑cited cases, its proper application and the burden of proof at each step is not clear. That is particularly so in cases of adverse impact discrimination, which "occurs when a seemingly neutral law has a disproportionate impact on members of groups protected on the basis of an enumerated or analogous ground" (Fraser, at para. 30; see also Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396, at para. 64; Taypotat, at para. 22). Rather than explicitly singling out members of the protected group for differential treatment, the law does so indirectly (Fraser, at para. 30). This is the allegation here: that, while facially neutral, the impugned provisions disproportionately impact Ms. Sharma, as an Indigenous woman.

[ 30 ] Uncertainty in the evidentiary burden in adverse impact cases has arisen when courts collapse the two steps of analysis into one, as the majority at the Court of Appeal did here (see para. 83). The two steps are not watertight compartments or "impermeable silos" (Fraser, at para. 82), since each step considers the impact of the impugned law on the protected group. While there may be overlap in the evidence that is relevant at each step, the two steps ask fundamentally different questions. As such, the analysis at each step must remain distinct from the other.

[ 31 ] The first step examines whether the impugned law created or contributed to a disproportionate impact on the claimant group based on a protected ground. This necessarily entails drawing a comparison between the claimant group and other groups or the general population (Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at p. 164). The second step, in turn, asks whether that impact imposes burdens or denies benefits in a manner that has the effect of reinforcing, perpetuating, or exacerbating a disadvantage. The conclusion that an impugned law has a disproportionate impact on a protected group (step one) does not lead automatically to a finding that the distinction is discriminatory (step two).

[ 32 ] Deciding the issues raised in this appeal requires us to resolve three particular uncertainties associated with the s. 15(1) framework:

(a) whether the claimant must prove that the impugned law or state conduct caused (in the sense of created or contributed to) the disproportionate impact on the claimant;

(b) whether the entire legislative context is relevant to the s. 15(1) inquiry; and

(c) whether s. 15(1) imposes a positive obligation on the legislature to enact remedial legislation, and relatedly, whether the legislature can incrementally address disadvantage.

[ 33 ] On a careful reading, this Court's jurisprudence answers these questions. In so saying, we do not alter the two‑step test for s. 15(1). Rather, we seek to bring clarity and predictability to its application, with a view to assisting parties to Charter challenges, judges adjudicating them, and legislators seeking to further s. 15's equality guarantee.

[ 34 ] We add that it should not be surprising that clarification is necessary. This Court has described s. 15(1) as the Charter's "most conceptually difficult provision" (Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, at para. 2). The development of its analytical framework is "daunting" (B. McLachlin, P.C., "Equality: The Most Difficult Right" (2001), 14 S.C.L.R. (2d) 17, at p. 17), and it has gone through multiple formulations since 1989 (A. Puchta, "Quebec v A and Taypotat: Unpacking the Supreme Court's Latest Decisions on Section 15 of the Charter" (2018), 55 Osgoode Hall L.J. 665, at p. 665). Academics have criticized the current framework from various perspectives, the common thread being that it is unclear and, thus, leads to inconsistent application (see, e.g., J. Koshan and J. Watson Hamilton, "Meaningless Mantra: Substantive Equality after Withler" (2011), 16 Rev. Const. Stud. 31, at p. 61; M. Young, "Unequal to the Task: 'Kapp'ing the Substantive Potential of Section 15" (2010), 50 S.C.L.R. (2d) 183, at p. 185; R. Moon, "Comment on Fraser v Canada (AG): The More Things Change" (2021), 30:2 Const. Forum 85).

[ 35 ] Our analysis proceeds in two parts. First, we provide guidance on the application of both steps of the s. 15(1) framework, with a preliminary point about the relationship between substantive equality and the two‑step test. Under the first step, we discuss causation and its relationship with the evidentiary burden to establish disproportionate impact. Under the second step, we discuss three key issues: (1) the claimant's evidentiary burden to establish that a distinction is discriminatory; (2) the role of legislative context; and (3) the scope of the state's obligations to remedy social inequalities. Second, we apply the s. 15(1) framework to the impugned provisions.

[ 36 ] We conclude that Ms. Sharma has not satisfied her burden at the first step. She has not demonstrated that the impugned provisions create or contribute to increased imprisonment of Indigenous offenders for the relevant offences, relative to non‑Indigenous offenders. The sentencing judge found that Ms. Sharma adduced no statistical information showing that the law creates such a distinction. While evidence of statistical disparity may not have been required to advance her s. 15 claim, the sentencing judge was correct to find that Ms. Sharma had not met her evidentiary burden at the first step based on the record presented. The Court of Appeal erred by interfering with the sentencing judge's finding of fact, and compounded this error by saying that no such evidentiary burden need be met.

(1) Guidance on the Section 15(1) Framework

(a) Preliminary Point About Substantive Equality

[ 37 ] Several recent decisions of this Court refer to substantive equality as the "animating norm" of s. 15 (Fraser, at para. 42, citing Withler, at para. 2; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, at paras. 15‑16; Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17, [2018] 1 S.C.R. 464, at para. 25). In these decisions, the Court stated that s. 15 of the Charter specifically protects substantive equality.

[ 38 ] The means by which substantive equality is protected is the application of the two-step test, as set out within each of these decisions (Fraser, at para. 27; Withler, at para. 30; Kapp, at para. 17; Alliance, at para. 25). This test has been affirmed repeatedly at this Court. While our colleague stresses the "touchstone" of substantive equality, a court's focus must ultimately be directed to the test, as stated by the jurisprudence. And where, applying that test, the claimant's burden at either step of s. 15(1) is not met, there is no infringement of s. 15 (and, therefore, no substantively unequal outcome).

(b) Step One: Proving the Law, on its Face or in its Impact, Creates or Contributes to a Distinction on the Basis of a Protected Ground

[ 39 ] Two questions arise. First, what is the standard by which courts should measure impact? And secondly, how may claimants prove impact?

[ 40 ] We start with the difference between impact and disproportionate impact. All laws are expected to impact individuals; merely showing that a law impacts a protected group is therefore insufficient. At step one of the s. 15(1) test, claimants must demonstrate a disproportionate impact on a protected group, as compared to non‑group members. Said differently, leaving a gap between a protected group and non‑group members unaffected does not infringe s. 15(1).

[ 41 ] The disproportionate impact requirement necessarily introduces comparison into the first step. As McIntyre J. explained in Andrews: "[Equality] is a comparative concept, the condition of which may only be attained or discerned by comparison with the condition of others in the social and political setting in which the question arises" (p. 164; see also Fraser, at para. 55). This Court no longer requires a "mirror comparator group" (Withler, at paras. 55‑64; Fraser, at para. 94). However, Withler confirms that comparison plays a role at both steps of the s. 15(1) analysis. At the first step, the word "distinction" itself implies that the claimant is treated differently than others, whether directly or indirectly (Withler, at para. 62, cited in Fraser, at para. 48).

[ 42 ] As we have explained, in adverse impact cases, the law appears facially neutral. At step one, the claimant must present sufficient evidence to prove the impugned law, in its impact, creates or contributes to a disproportionate impact on the basis of a protected ground (Fraser, at para. 60, citing Taypotat, at para. 34; Alliance, at para. 26; Symes v. Canada, [1993] 4 S.C.R. 695, at pp. 764-65). Causation is thus a central issue. In Withler, the Court observed:

In other cases, establishing the distinction will be more difficult, because what is alleged is indirect discrimination: that although the law purports to treat everyone the same, it has a disproportionately negative impact on a group or individual that can be identified by factors relating to enumerated or analogous grounds. . . . In that kind of case, the claimant will have more work to do at the first step. [para. 64]

[ 43 ] Since the Charter's adoption, "claimants have been required to demonstrate, through evidence, some sort of nexus between a particular action of the state, such as legislation, and an infringement of a Charter right or freedom" (Weatherley v. Canada (Attorney General), 2021 FCA 158, at para. 42, citing RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at pp. 447 and 490; Symes, at pp. 764‑65; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 60; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paras. 73‑78; Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176, at paras. 126 and 131‑34; R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398, at paras. 251‑53).

[ 44 ] This is confirmed by a long line of s. 15 jurisprudence: the claimant must establish a link or nexus between the impugned law and the discriminatory impact. In Symes, the Court stressed the importance of distinguishing between adverse impacts "caused" or "contributed to" by the impugned law and those which "exist independently of" the impugned provision or the state action (p. 765). As Abella J. explained in Taypotat:

. . . intuition may well lead us to the conclusion that the provision has some disparate impact, but before we put the [government] to the burden of justifying a breach of s. 15 . . ., there must be enough evidence to show a prima facie breach. While the evidentiary burden need not be onerous, the evidence must amount to more than a web of instinct. [para. 34]

[ 45 ] The causation requirement between the impugned law or state action and the disproportionate impact is recognized in the jurisprudence through the words "created" or "contributed to". Section 15(1) claimants must demonstrate that the impugned law or state action created or contributed to the disproportionate impact on the claimant group at step one (Symes, at p. 765). Both terms ⸺ "created" and "contributed to" ⸺ describe cause. "Contributed to" merely recognizes that the impugned law need not be the only or the dominant cause of the disproportionate impact.

[ 46 ] This is consonant with Fraser. In that case, Abella J. confirmed that once a claimant demonstrates that the impugned law or state action creates or contributes to the disproportionate impact on a group, they need not go further and show exactly why the law being challenged has that impact (Fraser, at paras. 63 and 70; Weatherley, at paras. 66‑75).

[ 47 ] Two examples illuminate Abella J.'s reasoning from Fraser and the associated burden of proof on a claimant at step one. In Fraser, the claimants had to demonstrate that the pension plan created or contributed to an adverse impact on the enumerated ground of sex. Said differently, the claimants had to prove that state action (the legislated restrictions to the pension plan) created or contributed to the impact (disproportionately reduced pensions) for individuals who were part of a protected group (women). The Court, however, imposed no further burden of demonstrating that being part of a protected group caused the impact: the claimants did not have to prove they were unable to acquire full‑time pension credit because they were women.

[ 48 ] For the Court, Abella J. relied on Griggs v. Duke Power Co., 401 U.S. 424 (1971), to illustrate her reasoning. In Griggs, the claimant did not have to show that he was denied employment opportunities because he was African American. However, the claimant did have to establish that the high school education requirement created or contributed to the adverse effect of disqualifying African Americans for those jobs as compared to other applicants. Demonstrating that a law created or contributed to a disproportionate impact on a protected group is sufficient for step one.

[ 49 ] In confirming the claimant's causation burden at step one, we are mindful of the evidentiary hurdles and the asymmetry of knowledge (relative to the state) that many claimants face. In Fraser, Abella J. referred to two types of evidence that are helpful in proving that a law has a disproportionate impact: evidence about the "full context of the claimant group's situation" (Withler, at para. 43, cited in Fraser, at para. 57) and evidence about "the outcomes that the impugned law or policy . . . has produced in practice" (Fraser, at para. 58). Ideally, claims of adverse impact discrimination should be supported by both (para. 60). To give proper effect to the promise of s. 15(1), however, a claimant's evidentiary burden cannot be unduly difficult to meet. In that regard, courts should bear in mind the following considerations:

(a) No specific form of evidence is required.

(b) The claimant need not show the impugned law or state action was the only or the dominant cause of the disproportionate impact ⸺ they need only demonstrate that the law was a cause (that is, the law created or contributed to the disproportionate impact on a protected group).

(c) The causal connection may be satisfied by a reasonable inference. Depending on the impugned law or state action at issue, causation may be obvious and require no evidence. Where evidence is required, courts should remain mindful that statistics may not be available. Expert testimony, case studies, or other qualitative evidence may be sufficient. In all circumstances, courts should examine evidence that purports to demonstrate a causal connection to ensure that it conforms with standards associated to its discipline.

(d) Courts should carefully scrutinize scientific evidence (see National Judicial Institute, Science Manual for Canadian Judges (2018); see also National Research Council and Federal Judicial Center, Reference Manual on Scientific Evidence (3rd ed. 2011)).

(e) If the scientific evidence is novel, courts should admit it only if it has a "reliable foundation" (R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 33; see also R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239, at para. 36).

[ 50 ] In summary, the first step asks whether the impugned provisions create or contribute to a disproportionate impact on the claimant group based on a protected ground as compared to other groups. If a claimant establishes that the law or state action creates or contributes to a disproportionate impact, the court should proceed to the second step. But to be clear, while the evidentiary burden at the first step should not be undue, it must be fulfilled. The particular evidentiary burden on claimants will depend on the claim. What remains consistent is that there is a burden on claimants at step one.

(c) Step Two: Proving the Law Imposes Burdens or Denies Benefits in a Manner That Has the Effect of Reinforcing, Perpetuating, or Exacerbating Their Disadvantage

(i) Evidentiary Burden

[ 51 ] It has never been the view of this Court that every distinction is discriminatory (Andrews, at p. 182). Hence the importance of the second step of the s. 15(1) test, requiring the claimant to establish that the impugned law imposes burdens or denies benefits in a manner that has the effect of reinforcing, perpetuating, or exacerbating the group's disadvantage. The question becomes, what does it mean to reinforce, perpetuate, or exacerbate disadvantage?

[ 52 ] Courts must examine the historical or systemic disadvantage of the claimant group. Leaving the situation of a claimant group unaffected is insufficient to meet the step two requirements. Two decisions of this Court demonstrate this point. In Fraser, Abella J. observed: "The goal is to examine the impact of the harm caused to the affected group", which may include economic exclusion or disadvantage, social exclusion, psychological harms, physical harms or political exclusion (para. 76 (emphasis added), citing C. Sheppard, Inclusive Equality: The Relational Dimensions of Systemic Discrimination in Canada (2010), at pp. 62‑63). In Withler, this Court explained that a negative impact or worsened situation was required:

Whether the s. 15 analysis focusses on perpetuating disadvantage or stereotyping, the analysis involves looking at the circumstances of members of the group and the negative impact of the law on them. The analysis is contextual, not formalistic, grounded in the actual situation of the group and the potential of the impugned law to worsen their situation. [para. 37]

[ 53 ] This Court has outlined several factors that may assist a judge in determining whether claimants have met their burden at step two: arbitrariness, prejudice, and stereotyping. These factors are not necessary components; while "[t]hey may assist in showing that a law has negative effects on a particular group, . . . they 'are neither separate elements of the Andrews test, nor categories into which a claim of discrimination must fit'" (Fraser, at para. 78, citing Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61, at para. 329). Nonetheless, courts may usefully consider whether these factors are present:

(a) Stereotyping or prejudice: These factors played a critical role at step two in Ontario (Attorney General) v. G, 2020 SCC 38, [2020] 3 S.C.R. 629. There, the Court held that the impugned law had a discriminatory impact because it furthered stereotypes and "prejudicial notions" about persons with disabilities (para. 62), reinforced "the stigmatizing idea that those with mental illness are inherently and permanently dangerous" and, in so doing, perpetuated the disadvantage they experienced (para. 65).

(b) Arbitrariness: A distinction that does not withhold access to benefits or impose burdens, or that is based on an individual's actual capacities, will rarely be discriminatory (Andrews, at pp. 174‑75). Abella J. described the role that arbitrariness can play in the analysis in both Quebec v. A (at paras. 221 and 331) and Taypotat (at paras. 16, 18, 20, 28 and 34). Taypotat focused on "arbitrary — or discriminatory — disadvantage, that is, 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" (para. 20 (emphasis added)).

[ 54 ] Again, Fraser is illustrative. To recall, at step one, the claimants had to demonstrate that the pension plan created or contributed to a disproportionate impact on the enumerated ground of sex. Once that requirement was met, at step two they had to show that the disproportionate impact imposed burdens or denied benefits in a manner that had the effect of reinforcing, perpetuating or exacerbating the historic or systemic disadvantage against that group. Since pension plans have been historically designed "for middle and upper‑income full‑time employees with long service, typically male" (para. 108, citing Report of the Royal Commission on the Status of Pensions in Ontario (1980), at p. 116), the state action "perpetuate[d] a long‑standing source of economic disadvantage for women" (para. 113). Thereby, the second step was satisfied.

[ 55 ] In light of that test, it is helpful to underline three points regarding the evidentiary burden at step two:

(a) The claimant need not prove that the legislature intended to discriminate (Fraser, at para. 69; Ontario v. G, at para. 46, citing Eldridge, at para. 62; Andrews, at p. 173).

(b) Judicial notice can play a role at step two. As this Court recognized in Law, "a court may take judicial notice of notorious and undisputed facts, or of facts which are capable of immediate and accurate demonstration, by resorting to readily accessible sources of indisputable accuracy" (para. 77, citing J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (1992), at p. 976). Of note here, the Court has taken judicial notice of the history of colonialism and how it translates into higher levels of incarceration for Indigenous peoples (R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 60).

(c) Courts may infer that a law has the effect of reinforcing, perpetuating, or exacerbating disadvantage, where such an inference is supported by the available evidence (Law, at para. 75). One must bear in mind, however, that inference is not mere assertion; nor is it a priori reasoning.

(ii) Legislative Context

[ 56 ] To determine whether a distinction is discriminatory under the second step, courts should also consider the broader legislative context.

[ 57 ] Such an approach is well‑supported in our jurisprudence. In Vriend v. Alberta, [1998] 1 S.C.R. 493, this Court held "[t]he comprehensive nature of the Act must be taken into account in considering the effect of excluding one ground from its protection" (para. 96). Similarly, in Withler, the analysis was said to entail consideration of "the full context of the claimant group's situation and the actual impact of the law on that situation" (para. 43). Where the impugned provision is part of a larger legislative scheme (as is often so), the Court explained, that broader scheme must be accounted for (para. 3), and the "ameliorative effect of the law on others and the multiplicity of interests it attempts to balance will also colour the discrimination analysis" (para. 38 (emphasis added)). In Taypotat, Abella J. harboured "serious doubts" that the impugned law imposed arbitrary disadvantage, particularly after considering the context of the relevant legislation "as a whole" (para. 28).

[ 58 ] Most recently, in C.P., the constitutionality of s. 37(10) of the Youth Criminal Justice Act, S.C. 2002, c. 1 ("YCJA") was at issue. The impugned provision did not provide young persons an automatic right of appeal to this Court where an appellate judge below dissents on a question of law, as the Criminal Code provides to adult offenders. Chief Justice Wagner, writing for four members of this Court, explicitly and carefully considered the entire legislative scheme, observing that the YCJA is designed to balance multiple goals — not only enhanced procedural protections, but also timely intervention and prompt resolution (para. 146). He further explained that an "approach requiring line‑by‑line parity with the Criminal Code without reference to the distinct nature of the underlying scheme of the YCJA would indeed be contrary to the contextual approach" (para. 145). In choosing not to provide young persons with an automatic right to appeal, he concluded "Parliament did not discriminate against them, but responded to the reality of their lives" (para. 162). Therefore, step two was not satisfied. We would endorse this approach, as it is consistent with Withler, Taypotat, and Vriend.

[ 59 ] Relevant considerations include: the objects of the scheme, whether a policy is designed to benefit a number of different groups, the allocation of resources, particular policy goals sought to be achieved, and whether the lines are drawn mindful as to those factors (Withler, at para. 67; see also paras. 3, 38, 40 and 81).

[ 60 ] A contextual approach is particularly significant when analyzing the constitutionality of sentencing regimes. Here, the impugned provisions cannot properly be considered in a manner that is divorced from the broader context of sentencing law as provided for in Part XXIII of the Criminal Code. Part XXIII reflects a balance or interaction among the statutory principles set out in s. 718 of the Criminal Code, including rehabilitation, denunciation and deterrence, reparations to victims, separation from society, and the principle of restraint in s. 718.2(e). Also relevant to the legislative context is the internal limit contained in s. 718.2(e). The provision instructs courts to consider for all offenders "all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community . . ., with particular attention to the circumstances of Aboriginal offenders" (see Proulx, at paras. 94‑101).

[ 61 ] Parliament has the exclusive authority to legislate in matters of sentencing policy. There is no constitutional right to any particular sentence, including a conditional sentence (R. v. Serov, 2016 BCSC 636, 353 C.R.R. (2d) 264, at para. 35; R. v. Chen, 2021 BCSC 697, at para. 212). Parliament had no positive obligation to create the conditional sentence regime. This Court stated in Proulx that Parliament could "have easily excluded specific offences" from the conditional sentencing regime when it came into force in 1996 (para. 79). It chose to do so later, and may choose to do so in the future. That is inherent in the role of Parliament, informed by experience and by the wishes of the electorate. As we explain in greater detail below, Parliament is not bound by its past policy choices, and sentencing legislation must be assessed on its own to determine whether it is constitutionally compliant, without having regard to the prior legislative scheme (Alliance, at para. 33). In the context of equality claims regarding criminal sentencing policy, an area of law that involves multi-faceted and complex policy considerations, the s. 15(1) analysis must be conducted with sensitivity and due regard to the present legislative scheme.

(iii) The Scope of the State's Obligations to Remedy Social Inequalities

[ 62 ] Given the questions raised in this appeal, it is important to confirm two principles related to the government's obligations under s. 15(1).

[ 63 ] First, s. 15(1) does not impose a general, positive obligation on the state to remedy social inequalities or enact remedial legislation (Thibaudeau v. Canada, [1995] 2 S.C.R. 627, at para. 37; Eldridge, at para. 73; Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657, at para. 41; Alliance, at para. 42). Were it otherwise, courts would be impermissibly pulled into the complex legislative domain of policy and resource allocation, contrary to the separation of powers. In Alliance, this Court struck down amendments to Quebec's pay equity legislation that "interfere[d] with access to anti‑discrimination law" by undermining existing legislative pay equity protections (para. 39). But in so doing, Abella J. expressly declined to impose a "freestanding positive obligation on the state to enact benefit schemes to redress social inequalities" (para. 42). The Court further affirmed that s. 15(1) does not bind the legislature to its current policies:

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. [Emphasis added; emphasis in original deleted; para. 33.]

[ 64 ] Secondly, this Court in Alliance confirmed that, when the state does legislate to address inequality, it can do so incrementally:

The result of finding that Quebec's amendments breach s. 15 in this case is not, as Quebec suggests, to impose a freestanding positive obligation on the state to enact benefit schemes to redress social inequalities. Nor does it undermine the state's ability to act incrementally in addressing systemic inequality. [Emphasis added; para. 42.]

[ 65 ] Incrementalism is deeply grounded in Charter jurisprudence. In R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, the Court accepted that the state may implement reforms "one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind" (p. 772 (emphasis added)). Expanding on the passage in Edwards Books, La Forest J. confirmed in McKinney v. University of Guelph, [1990] 3 S.C.R. 229, that a legislature "must be given reasonable leeway to deal with problems one step at a time, to balance possible inequalities under the law against other inequalities resulting from the adoption of a course of action, and to take account of the difficulties, whether social, economic or budgetary, that would arise if it attempted to deal with social and economic problems in their entirety" (p. 317). He also emphasized that, generally, courts "should not lightly use the Charter to second‑guess legislative judgment as to just how quickly it should proceed in moving forward towards the ideal of equality" (p. 318). See also Schachter v. Canada, [1992] 2 S.C.R. 679; Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429; and Auton, at paras. 61‑62.

(2) Application to the Impugned Provisions

[ 66 ] For the reasons that follow, we are of the view that Ms. Sharma's claim fails at the first step of the s. 15(1) analysis. The impugned provisions do not create or contribute to a disproportionate impact on Ms. Sharma as an Indigenous offender.

[ 67 ] The sentencing judge rejected Ms. Sharma's s. 15(1) claim, concluding that there was "difficulty on this record" identifying an impact that he would classify as a distinction (para. 257). He held that Ms. Sharma adduced "no statistical information" demonstrating that the legislation caused a distinction (ibid.).

[ 68 ] The Court of Appeal disagreed with the sentencing judge's conclusion on the first step, relying on the observation that "Aboriginal offenders start from a place of substantive inequality in the criminal justice system" (para. 70). Since the impugned provisions removed a remedial provision designed to address overincarceration of Indigenous offenders, the effect was to "exacerbate the discriminatory effect" (para. 83).

[ 69 ] The Court of Appeal collapsed the two‑step s. 15(1) framework into a single step. In doing so, it erred in two ways. First, it failed to clearly delineate Ms. Sharma's evidentiary burden at each step of analysis, using broad evidence of historic disadvantage to satisfy the causation burden at both steps:

The 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. [Emphasis added; para. 79.]

[ 70 ] Secondly, when analyzing Ms. Sharma's evidence at the first step, the court erred by using the second‑step s. 15(1) requirements:

Where 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. [Emphasis added; para. 83.]

[ 71 ] To recall, the focus at the first step is on a disproportionate impact, not historic or systemic disadvantage. The Court of Appeal addressed the wrong question at step one, focusing on the link between colonial policies and overincarceration of Indigenous peoples. While the situation of the claimant group is relevant at step one (see Fraser, at paras. 56‑57), it is not sufficient on its own to establish disproportionate impact. Nor is it enough to show that the law restricts an ameliorative program.

[ 72 ] To explain this point, we must directly address Ms. Sharma's argument before this Court. Ms. Sharma submits that "conditional sentences are inextricably connected with s. 718.2(e), which does draw a race‑based distinction, by expressly identifying Indigenous offenders as requiring particular consideration in the sentencing process. Any modification to the Gladue framework necessarily impacts Indigenous offenders differently than non‑Indigenous offenders" (R.F., at para. 63 (emphasis in original)). She further submits that "[w]hile the Impugned Provisions apply to both Indigenous and non‑Indigenous offenders, the undermining of the Gladue framework affects only Indigenous offenders" (para. 63). Our colleague adopts this argument, saying the distinction flows "from the combined effect of ss. 718.2(e) and 742.1" (para. 211).

[ 73 ] We accept that there is a link between the Gladue framework relating to s. 718.2(e) and the conditional sentence regime. Both were adopted as part of the same legislation aimed at reducing the use of prison as a sanction and expanding the use of restorative justice principles in sentencing (Gladue, at para. 48; Proulx, at paras. 15 and 18‑21; Wells, at para. 6). However, Ms. Sharma's burden at step one was to demonstrate that the specific provisions she challenged created or contributed to a disproportionate impact on Indigenous offenders. While she did not have to prove that the impugned provisions removed access to a conditional sentence because she was Indigenous or that the impugned provisions were the only or the dominant cause of the disproportionate impact, she did have to demonstrate a causal connection.

[ 74 ] The sentencing judge did not accept that the impugned provisions disproportionately impact Indigenous offenders, for good reason. Dr. Murdocca testified that it was "unknown if recent statutory amendments that have restricted the use of conditional sentences may affect Aboriginal offenders disproportionately compared to non‑Aboriginal offenders" (A.R., vol. II, at pp. 86‑90 (emphasis added)). In light of all the evidence, the sentencing judge determined Ms. Sharma failed to satisfy step one. While the Court of Appeal overturned the sentencing judge's conclusion, it failed to identify any evidence supporting Ms. Sharma's argument that the impugned provisions created or contributed to a disproportionate impact on Indigenous offenders (see paras. 68‑89). In saying this, we recognize that the Court of Appeal relied on fresh evidence, adduced by interveners, and expert evidence from Dr. Murdocca. It examined this evidence, however, at step two of its analysis (see paras. 90‑105).

[ 75 ] We note here, in passing, our serious concern with interveners supplementing the record at the appellate level. As stated in R. v. Morgentaler, [1993] 1 S.C.R. 462, "[t]he purpose of an intervention is to present the court with submissions which are useful and different from the perspective of a non-party who has a special interest or particular expertise in the subject matter of the appeal" (p. 463, cited in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at paras. 52‑53). Interveners must, however, accept the record as defined by the parties in first instance (Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388; R. v. Marshall, [1999] 3 S.C.R. 533, at para. 9; R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at para. 59). Interveners creating a new evidentiary record at the appellate level undermines the trial process. That is not how our system of justice, including constitutional adjudication, is designed to work.

[ 76 ] In short, the Court of Appeal erred by removing Ms. Sharma's evidentiary burden at step one. This is inconsistent with the sentencing judge's finding that Ms. Sharma failed to establish a distinction on the basis of a protected ground (para. 257). The Court of Appeal improperly substituted its own view of the matter. In this case, while Ms. Sharma was not required to adduce a specific type of evidence, she had to demonstrate that the impugned provisions created or contributed to a disproportionate impact. Ms. Sharma, for example, could have presented expert evidence or statistical data showing Indigenous imprisonment disproportionately increased for the specific offences targeted by the impugned provisions, relative to non‑Indigenous offenders, after the SSCA came into force. Such evidence might establish that the removal of conditional sentences created or contributed to a disproportionate impact on Indigenous offenders.

[ 77 ] By overturning the sentence, the Court of Appeal not only departed from its proper role but misapplied the jurisprudence of this Court. In light of the sentencing judge's findings, Ms. Sharma's argument before this Court ⸺ that the impugned provisions "necessarily impac[t] Indigenous offenders differently" ⸺ cannot be accepted.

[ 78 ] Ms. Sharma argued that removing the availability of conditional sentences undermined a trial judge's ability to give effect to s. 718.2(e). She alleges that the removal of one "accommodation", the availability of conditional sentences for certain offences, disproportionately impacts Indigenous offenders. We do not accept this argument. It is clear that s. 718.2(e) is still meaningfully operable, as it was given effect in this case. As long as judges retain broad discretion to impose a range of available sentences, we query whether altering a single sentencing provision could undermine s. 718.2(e) in the manner Ms. Sharma suggests.

[ 79 ] It is undisputed that the sentencing judge must take account of the particular circumstances of Indigenous offenders, as that is what Parliament has directed in s. 718.2(e). How this is to be done may take various forms and the Criminal Code provides judges broad discretion to craft a proportionate sentence, given the offender's degree of responsibility, the gravity of the offence and the specific circumstance of each case (R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 58). For instance, sentencing judges may consider other non‑carceral options such as suspended sentences and probation. They may also reduce sentences below the typical range.

[ 80 ] It is true that suspended sentences are "primarily a rehabilitative sentencing tool", whereas conditional sentences "address both punitive and rehabilitative objectives" (Proulx, at para. 23). Suspended sentences are not irrelevant to applying s. 718.2(e). Proulx does not prohibit judges from using suspended sentences "to endeavour to achieve a truly fit and proper sentence in the particular case" (Gladue, at para. 33). Where conditional sentences are unavailable, judges may give effect to s. 718.2(e) by considering suspended sentences with openness and flexibility.

[ 81 ] In any event, and as we say, it is clear that s. 718.2(e) was given effect in the circumstances of this case. The judge sentenced Ms. Sharma to 18 months' incarceration, taking into account her experience as an Indigenous person under the Gladue framework, which was well below the established range for similar offences (sentencing reasons, at para. 80). As a reminder, s. 718.2(e) does not guarantee that Indigenous offenders will not receive carceral sentences.

[ 82 ] As a final point, although our colleague assures us that "[r]epealing or amending s. 742.1, or even s. 718.2(e), will not automatically contravene s. 15(1)" (para. 244), the logical conclusion of her reasons suggests the contrary. While s. 718.2(e) sets out an important policy, it is a legislative provision, not a constitutional imperative, and it is open to Parliament to amend it, even if to narrow the circumstances in which it applies. Viewed in this light, our colleague's proposition is novel and its implications are profound and far-reaching. Parliament would be prevented from repealing or amending existing ameliorative policies in many cases, unless courts are persuaded that such changes are justified under s. 1. This would amount to a transfer of sentencing policy-making from Parliament to judges. Such an outcome would be contrary to the separation of powers, at odds with decades of our jurisprudence stressing Parliament's latitude over sentencing within constitutional limits, and must be rejected.

[ 83 ] Given the above, there is no need to consider step two. Section 15(1) is not infringed.

B. Section 7

(1) Introduction

[ 84 ] Section 7 states:

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.

[ 85 ] The parties agree that the impugned provisions limit Ms. Sharma's liberty interests. The question that follows is whether they do so in a manner that accords with the principles of fundamental justice. Ms. Sharma argued before the Court of Appeal that the impugned provisions are arbitrary and overbroad. The majority agreed that the impugned provisions were overbroad, but not arbitrary. In our view, the impugned provisions are neither.

[The majority's s. 7 analysis continues at paragraphs 86–113, addressing the purpose of the impugned provisions — characterized as enhancing consistency in the conditional sentencing regime by making imprisonment the typical punishment for certain serious offences — and concluding the provisions are neither overbroad nor arbitrary, as maximum sentences are a reasonable proxy for offence seriousness. The appeal is allowed and the sentence of 18 months' imprisonment restored.]

Dissenting Reasons

Karakatsanis J. (Martin, Kasirer and Jamal JJ. concurring) —

I. Introduction

[ 114 ] In 1999, the Court called Indigenous overincarceration a crisis in the Canadian criminal justice system. Since then, Indigenous incarceration rates have climbed and those of Indigenous women have soared. Overincarceration is an ongoing source of intergenerational harm to families and communities and a striking sign of the discrimination that Indigenous peoples experience in the criminal justice system. Sentencing law is uniquely positioned to ameliorate the racial inequalities in Canada's criminal justice system. Ensuring that Canadian sentencing provisions are consistent with the liberty and equality guarantees under the Charter is therefore essential. The Court is required to do so in the instant case.

[The dissent's full analysis at paragraphs 114–260 addresses: the s. 7 overbreadth analysis (paras. 150–180), concluding the provisions are overbroad because maximum sentences are a flawed proxy for offence gravity; the s. 15(1) analysis (paras. 181–249), concluding the provisions draw a race-based distinction by impairing the Gladue framework and reinforce, perpetuate and exacerbate Indigenous disadvantage; and s. 1 justification (paras. 251–259), concluding the limitations are not demonstrably justified as the provisions are not minimally impairing. The dissent would dismiss the appeal.]

Appeal allowed, Karakatsanis, Martin, Kasirer and Jamal JJ. dissenting.

Solicitors

Solicitor for the appellant: Public Prosecution Service of Canada, Toronto.

Solicitors for the respondent: Stockwoods, Toronto.

Solicitor for the intervener the Attorney General of British Columbia: Ministry of Attorney General of British Columbia — Criminal Appeals and Special Prosecutions, Victoria.

Solicitor for the intervener the Attorney General of Saskatchewan: Attorney General of Saskatchewan — Ministry of Justice Saskatchewan, Regina.

Solicitor for the intervener the Aboriginal Legal Services Inc.: Aboriginal Legal Services Inc., Toronto.

Solicitors for the intervener the Federation of Sovereign Indigenous Nations: Sunchild Law, Battleford, Sask.

Solicitor for the intervener the British Columbia Civil Liberties Association: Larochelle Law, Whitehorse.

Solicitors for the intervener the Queen's Prison Law Clinic: Rudnicki & Company, Toronto.

Solicitor for the interveners the HIV & AIDS Legal Clinic Ontario and the HIV Legal Network: HIV & AIDS Legal Clinic Ontario, Toronto.

Solicitors for the intervener the Canadian Bar Association: Peck and Company, Vancouver.

Solicitors for the intervener the Women's Legal Education and Action Fund Inc.: Lombard Law, Saskatoon; Aubrey Charette, Ottawa.

Solicitor for the intervener the Legal Services Board of Nunavut: Nunavut Legal Aid, Iqaluit.

Solicitors for the intervener the Criminal Lawyers' Association (Ontario): Promise Holmes Skinner Barrister & Solicitor, Toronto; Daniel Brown Law, Toronto.

Solicitors for the intervener the Canadian Civil Liberties Association: Greenspan Humphrey Weinstein, Toronto.

Solicitor for the intervener the Native Women's Association of Canada: Native Women's Association of Canada, Ottawa.

Solicitors for the intervener the David Asper Centre for Constitutional Rights: Goldblatt Partners, Toronto.

Solicitors for the intervener the Ontario Native Women's Association: McCarthy Tétrault, Toronto.

Solicitors for the intervener the Assembly of Manitoba Chiefs: Fox Fraser, Calgary.

Solicitors for the intervener the Canadian Association of Elizabeth Fry Societies: Champ and Associates, Ottawa.

Solicitors for the intervener the John Howard Society of Canada: Polley Faith, Toronto.

Solicitors for the intervener the Criminal Trial Lawyers' Association: Dawson Duckett Garcia & Johnson, Edmonton.

Solicitors for the intervener Association québécoise des avocats et avocates de la défense: Le Groupe Campeau Raymond Inc., Montréal.