R v Sharma

Sharma, an Indigenous woman, challenged Criminal Code restrictions on conditional sentences for offences punishable by 14 years or more. She argued the restrictions violated ss.7 and 15 by limiting Gladue alternatives. A 5-4 majority upheld the restrictions; the dissent would have struck them down.

Sharma, a young Indigenous mother, was convicted of importing cocaine. She sought a conditional sentence under s.742.1, but the offence fell within statutory exclusions for offences punishable by 14 years or more.

Do ss.742.1(c) and 742.1(e)(ii) violate ss.7 or 15(1) of the Charter?

5-4 No. Restrictions upheld.

Statutory limits on sentencing options that have a disproportionate impact on Indigenous offenders are not, without more, contrary to s.15 absent a discriminatory purpose. Section 7 is not violated where the legislation otherwise provides for proportionate sentencing.

The majority (Brown and Rowe JJ) held that adverse effects do not automatically establish s.15 infringement; the law must reinforce, perpetuate, or exacerbate disadvantage. The dissent (Karakatsanis and Martin JJ) would have found infringement based on the legislation's effect on Indigenous over-incarceration.

Controversial and closely divided. The dissent has been widely cited in subsequent litigation. Continues the contested terrain at the boundary of substantive equality and legislative choice.

R v Sharma, 2022 SCC 39, [2022] 3 SCR 1.

Wagner CJ, Moldaver J, Karakatsanis J, Côté J, Brown J, Rowe J, Martin J, Kasirer J, Jamal J