Ban on conditional sentences ruled constitutional by Supreme Court

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Ban on conditional sentences ruled constitutional by Supreme Court

< p class="styled__StyledLegend-sc-v64krj-0 cfqhYM">The Supreme Court of Canada.

In a split decision of five judges to four, the Supreme Court of Canada rules that the he ban on conditional sentences of imprisonment for certain offences, as currently stated in the Criminal Code, is constitutional.

This judgment reverses the decision of the Ontario Court of Appeal which declared unconstitutional in July 2020 a law adopted in 2012 by the Conservative government of Stephen Harper which prohibits a judge from imposing a sentence suspended sentences for certain offenses carrying maximum penalties of more than 10 years in prison.

Introduced in 1996, the conditional prison sentence allows a qualified offender to serve their sentence outside the prison walls under strict conditions established by the court. But in 2012, the federal government restricted the conditions for obtaining it based on the seriousness of the crimes committed.

In that case, the lawyers for Cheyenne Sharma, a mother of Ojibway descent from the Saugeen Nation – sentenced to 17 months in prison in 2018 for attempting to smuggle nearly two kilos of cocaine into the country – argued that the provision of the 2012 Criminal Code was contrary to the Canadian Charter of Rights and Freedoms due to its impact on Indigenous offenders.

According to Ms. Sharma and the organizations that support her, the sentence she received also violated the principles of the Supreme Court of Canada's decision in 1999 in R. v. Gladue, which sets out factors to be considered by courts when sentencing Aboriginal offenders.

Prohibiting conditional sentences for certain crimes would, they say, conflict with the principles of restorative justice practiced among First Nations, in addition to depriving the courts of an important means of remedying systemic discrimination. against Aboriginal people, said the Ontario Court of Appeal.

However, in its decision handed down Friday, the Supreme Court upheld the constitutionality of the ban on conditional sentences, which in its view does not limit Ms. Sharma's rights guaranteed by the Canadian Charter of Rights and Freedoms.

According to the highest court in the land, Ms. Sharma has not shown that the impugned provisions create a disproportionate effect on Aboriginal offenders compared to non-Aboriginal offenders or that they contribute to such an effect.

The Court also stated that these provisions of the Criminal Code reinforce the consistency of the conditional sentencing scheme by making imprisonment the usual sentence for certain offenses and classes of serious offences.

Arrested in 2015 for attempting to smuggle nearly two kilos of cocaine into the country from South America, Cheyenne Sharma was sentenced in February 2018 to 17 months in prison by the judge Casey Hill of the Ontario Superior Court.

Mother of a young girl, she pleaded guilty, explaining that she agreed to smuggle the drugs for her boyfriend in exchange for $20,000 to avoid being evicted from her accommodation because of her situation. desperate financial.

Ms. Sharma, who challenged the Criminal Code provision that provides for a mandatory minimum sentence of two years in prison, won her case, but the judge dismissed her challenge to the provision on conditional sentences.

The woman appealed the judgment and various activist groups intervened on her behalf. They argued that systemic discrimination based on gender, ethnicity, socioeconomic status, and colonialism shape the experience of Indigenous women.

The fact of & #x27;prohibiting conditional sentences for Indigenous offenders prevents judges from fully applying the Gladue principle, they argued.

The Court of Appeals agreed in July 2020 and overturned Ms. Sharma's prison sentence, saying a suspended sentence of 24 months less a day would have been appropriate in her case. Since she had already served her prison sentence at the time of the judgment, the Court of Appeal sentenced her to the time already spent behind bars.

As the decision of the Court of Appeal was reversed, the sentence imposed at first instance against Ms. Sharma is therefore restored, specifies the decision of the Supreme Court.

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