Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


R. v. SHARMA, 2022 SCC 39, NOVEMBER 4, 2022.

FACTS:  The accused pleaded guilty to importing a controlled substance contrary to section 6(1) of the Controlled Drugs and Substances Act.  A conditional sentence was statutorily barred by sections 742.1(c) [offences with a maximum term of imprisonment of 14 years or life] and 742.1(e) [offences, prosecuted by indictment, having a maximum term of imprisonment of 10 years and involving the import, export, trafficking, or production of drugs]. 

The sentencing judge imposed a period of incarceration as required.  However, the Ontario Court of Appeal held that the two provisions were overbroad and discriminatory, thereby violating sections 7 and 15(1) of the Charter. The Court of Appeal imposed a sentence of ‘time served”. The Crown appealed.

HELD: The appeal was allowed and the period of incarceration imposed by the sentencing judge was restored. The Supreme Court concluded as follows (at paragraphs 3 and 4):

…The impugned provisions do not limit Ms. Sharma’s s. 15(1) rights. While the crisis of Indigenous incarceration is undeniable, Ms. Sharma did not demonstrate that the impugned provisions created or contributed to a disproportionate impact on Indigenous offenders, relative to non‑Indigenous offenders, as she must show at the first step of the s. 15(1) analysis.

Nor do the impugned provisions limit Ms. Sharma’s s. 7 rights. Their purpose is to enhance consistency in the conditional sentencing regime by making imprisonment the typical punishment for certain serious offences and categories of offences. And that is what they do. Maximum sentences are a reasonable proxy for the seriousness of an offence and, accordingly, the provisions do not deprive individuals of their liberty in circumstances that bear no connection to their objective.