Skip to Main Content

Conservative get-tough on crime initiative violates the Charter, says Court of Appeal

July 27, 2020

Ontario Court of Appeal strikes down limits on conditional sentencing

On July 24, 2020, the Ontario Court of Appeal struck down two sections of the Criminal Code that removed the availability of conditional sentences, as an alternative to custodial sentences, for certain offences. This is an important victory that gives effect to the sentencing principles of Gladue and breathes new life into section 15 of the Charter.


One of Stephen Harper’s get tough on crime initiatives was to amend the Criminal Code to remove the availability of a conditional sentence for someone who committed an offence where the maximum penalty is 14 years or life in prison.

Cheyenne Sharma challenged these provisions of the Code under the section 15 equality provisions of the Canadian Charter of Rights and Freedoms. She argued that they contravened section 15 of the Charter because their effect is to discriminate against Aboriginal offenders on the basis of race.

The trial judge rejected this argument, and Ms. Sharma appealed to the Ontario Court of Appeal.

At the Court of Appeal, Ms. Sharma argued that the trial judge had erred in failing to strike down the provisions as a violation of section 15 of the Charter. She also challenged the provisions under section 7 of the Charter, which requires that laws that interfere with life, liberty and security of the person conform to the principles of fundamental justice. She argued that the Code provisions were arbitrary and overbroad in relation to their purpose.

Adriel Weaver and Jessica Orkin represented the intervenors David Asper Centre for Constitutional Rights and the Women’s Legal Education and Action Fund in support of Ms. Sharma.

The Court of Appeal’s decision

A majority of the Court of Appeal agreed with Ms. Sharma.  It held that the impugned provisions discriminated against Indigenous people convicted of crimes, contrary to both sections 7 and 15 of the Charter.

Writing for the majority, Justice Feldman concluded that restricting conditional sentences violated section 15 by perpetuating the disproportionate incarceration of Indigenous peoples in Canada. This ran contrary to the Supreme Court of Canada’s direction to prioritize alternatives to imprisonment for Aboriginal offenders in R. v. Gladue and R. v. Ipeelee.  In these cases, the Supreme Court held that judges should use a different framework of analysis for sentencing Aboriginal offenders, taking into consideration “the distinct situation of aboriginal peoples in Canada” including the unique systemic or background factors which may have played a part in bringing a particular Aboriginal offender before the courts and the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection.

In this case, Justice Feldman held, in part, that section 15 of the Charter was breached because:

The conditional sentence is a central tool given to sentencing judges to apply the Gladue factors. By restricting the availability of the conditional sentence, the impugned amendments deprive the court of an important means to redress systemic discrimination against Aboriginal people when considering an appropriate sanction … [The impugned provisions] undermine the purpose of the Gladue framework, exacerbating and perpetuating the discriminatory disadvantage of Aboriginal offenders in the sentencing process.

Justice Feldman also found that the impugned provisions violated section 7 because they were overbroad in addressing Parliament’s stated purpose of ensuring jail time for serious crimes.

Neither infringement was saved by section 1 of the Charter, which provides that the rights and freedoms set out in the Charter are subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Among other things, the majority held that the provisions took no account of the special circumstances of Aboriginal offenders and the need to address their disadvantage based on race that has resulted in the over incarceration of Aboriginal people.

The Court struck down the provisions, effective immediately. Read the Court’s decision here.

Adriel and Jessica’s submissions were relied on by Justice Feldman (paras. 95-97).  Their factum can be read here. In addition, the majority cited an article written by GP’s Ryan Newell in its judgment (para. 94).


Jessica Orkin, Adriel Weaver

Practice Areas

Aboriginal Law, Appeals & Judicial Review, Constitutional Law