© Reuters. Fencing was brought up around the Supreme Court of Canada ahead of Canada Day celebrations and anti-authoritarian protests in Ottawa, Ontario, Canada June 29, 2022. REUTERS/Blair Gable
By Anna Mehler Paperny and Ismail Shakil
TORONTO (Reuters) – The divided Canada’s Supreme Court on Friday ruled limits on conditional sentences as constitutional, a setback for indigenous rights advocates who say that the provisions discriminate against Indigenous peoples, who are over-represented in the country’s prisons.
Lawyers for Cheyenne Sharma, a First International woman, did not demonstrate that the terms limiting her eligibility for the conditional sentence “created or contributed to cause a disproportionate impact on indigenous offenders” and the restrictions were consistent with the government’s goals, the majority wrote.
Sharma challenged the constitutionality of legal provisions that made her ineligible for a conditional sentence after pleading guilty to importing cocaine. The then 20-year-old single mother, fearful of being evicted from her home, imported nearly 2 kilograms for $20,000 Canadian dollars.
The 2012 law prevents judges from giving conditional sentences to defendants for certain crimes. The Ontario Court of Appeal found these provisions violated Sharma’s rights to human life, liberty and security, and to equal treatment under the law.
According to the Canadian Correctional Investigator, Indigenous people, especially Indigenous women, make up a disproportionate share of Canada’s prison population.
Indigenous women make up half of the women in Canada’s prisons and 65% of women incarcerated are rated maximum security despite making up less than 5% of the country’s female population.
Conditional sentences, delivered in the community under close scrutiny and strict rules, are supposed to help resolve this disparity.
The Canadian government appealed the Court of Appeal’s ruling, arguing that it would effectively prevent the government from “enacting or amending criminal law – unless it wants to make it more lenient”. The government argues that limiting the application of criminal sanctions does not cause the historical disadvantage that indigenous offenders face.
But the government itself also introduced legislation, now before the Senate, that would have the same effect on the terms interfered with.
Lawyers told Reuters a victory for Sharma and her allies would likely open the door to future lawsuits arguing that even seemingly neutral laws can have ramifications. discriminatory actions that make them unconstitutional.