CCLA Argues Against Discriminatory, Overly Punitive Criminal Code Provisions at the Supreme Court

Indigenous people are dramatically over-represented in Canada’s criminal justice system. The legacy of colonialism and ongoing colonial practices and discrimination has led to the mass incarceration of Indigenous persons. While the number of non-Indigenous people in federal prisons has continued to decrease, the number of Indigenous people held behind bars as continued to grow. As of December 2021, nearly half of the women held in Canada’s federal prisons were Indigenous.

While these trends are the result of a long list of societal failures, there are also specific laws on the books that directly contribute to these discriminatory and unfair outcomes.

Many parts of our criminal law sweep too many people into punitive regimes, creating adverse impacts for Indigenous people and preventing courts from imposing proportionate sentences that take into account systemic discrimination. On March 29, the Supreme Court of Canada considered the case of R v Sharma and the constitutionality of two of these legal provisions—two Criminal Code sections that prevent judges from imposing conditional sentences that can be served in the community. The Ontario Court of Appeal had found that these provisions violate ss. 7 and 15(1) of the Charter.

CCLA’s counsel appeared alongside over a dozen other parties to argue that these provisions are unconstitutional. Our submissions focused on the inappropriateness of using maximum sentencing ranges to determine sentencing options, and the importance of deciding both the section 7 and section 15 issues.

Read CCLA’s legal arguments before the Supreme Court here.

Many thanks to Michelle Biddulph and David Humphrey for their excellent pro bono representation.