{"id":11409,"date":"2019-07-17T15:27:27","date_gmt":"2019-07-17T19:27:27","guid":{"rendered":"https:\/\/www.leaf.ca\/?p=11409"},"modified":"2020-11-20T11:20:34","modified_gmt":"2020-11-20T16:20:34","slug":"intervener-factum-r-v-sharma","status":"publish","type":"news","link":"https:\/\/www.leaf.ca\/fr\/news\/intervener-factum-r-v-sharma\/","title":{"rendered":"LEAF and the Asper Centre file an Intervener Factum in R v Sharma Case"},"content":{"rendered":"\n
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LEAF and the Asper Centre have filed their intervener factum in a case challenging the constitutionality of Criminal Code<\/em> provisions that eliminate the option of a conditional sentence for an Indigenous woman convicted of importing drugs<\/strong><\/p>\n\n\n\n

On Monday July 15, 2019, the Women\u2019s Legal Education and Action Fund (LEAF) and the David Asper Centre for Constitutional Rights (the Asper Centre) filed their intervener factum with the Ontario Court of Appeal in R v Sharma<\/em>, a case challenging the constitutionality of Criminal Code provisions (ss 742.1(c) and (e)(ii)) which eliminate conditional sentences for certain offences.<\/p>\n\n\n\n

LEAF and the Asper Centre intervene to submit that the constitutionality of the provisions must be assessed in the context of systemic discrimination against Indigenous people, especially Indigenous women, in the administration of criminal justice. Their submissions focus on the proper interpretation and application of s 15 of the Charter<\/em> and the need to consider Indigenous women\u2019s substantive equality rights at sentencing.<\/p>\n\n\n\n

The Facts<\/h3>\n\n\n\n

Cheyenne Sharma, the appellant, is a young Indigenous woman, an intergenerational residential school survivor, and a single mother. Facing financial hardship and the potential of eviction for her and her two-year-old daughter, Ms. Sharma acted as a drug courier and imported 2 kg of cocaine into Canada. She was convicted of importing drugs.<\/p>\n\n\n\n

As an Indigenous person, Ms. Sharma is entitled to the use of the Gladue<\/em> framework in her sentencing (under s 718.2(e) of the Criminal Code<\/em>). This individualized and contextualized framework requires judges to consider alternatives to incarceration when sentencing Indigenous offenders. One such alternative is a conditional sentence, a community-based alternative to a custodial sentence. However, because Ms. Sharma was convicted of importing drugs, an offence with a maximum sentence of 14 years, both ss 742.1(c) and (e)(ii) of the Criminal Code<\/em> render a conditional sentence of imprisonment unavailable.<\/p>\n\n\n\n

The sentencing judge acknowledged that, prior to the 2012 enactment of these provisions, Ms. Sharma would have been eligible for, and would have received, a conditional sentence. He did not accept, however, that the provisions barring him from imposing such a sentence infringed either her ss 7 or 15 Charter<\/em> rights.<\/p>\n\n\n\n