His Majesty The King in Right of Canada Appellant v. Cheyenne Sharma, 2022 SCC 39

SUPREME COURT OF CANADA Citation: R. v.

Sharma, 2022 SCC 39 Appeal Heard: March 23, 2022 Judgment Rendered: November 4, 2022 Docket: 39346 Between: His Majesty The King in Right of Canada Appellant and Cheyenne Sharma Respondent - and - Attorney General of British Columbia, Attorney General of Saskatchewan, Aboriginal Legal Services Inc., Federation of Sovereign Indigenous Nations, British Columbia Civil Liberties Association, Queen’s Prison Law Clinic, HIV & AIDS Legal Clinic Ontario, HIV Legal Network, Canadian Bar Association, Women’s Legal Education and Action Fund Inc., Legal Services Board of Nunavut, Criminal Lawyers’ Association (Ontario), Canadian Civil Liberties Association, Native Women’s Association of Canada, David Asper Centre for Constitutional Rights, Ontario Native Women’s Association, Assembly of Manitoba Chiefs, Canadian Association of Elizabeth Fry Societies, John Howard Society of Canada, Criminal Trial Lawyers’ Association and Association québécoise des avocats et avocates de la défense Interveners Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

Joint Reasons for Judgment : (paras. 1 to 113) Brown and Rowe JJ. (Wagner C.J. and Moldaver and Côté JJ. concurring) D issenting R easons : (paras. 114 to 260) Karakatsanis J. (Martin, Kasirer and Jamal JJ. concurring)

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports . His Majesty The King in Right of Canada Appellant v.

Cheyenne Sharma Respondent and Attorney General of British Columbia, Attorney General of Saskatchewan, Aboriginal Legal Services Inc., Federation of Sovereign Indigenous Nations, British Columbia Civil Liberties Association, Queen’s Prison Law Clinic, HIV & AIDS Legal Clinic Ontario, HIV Legal Network, Canadian Bar Association, Women’s Legal Education and Action Fund Inc., Legal Services Board of Nunavut, Criminal Lawyers’ Association (Ontario), Canadian Civil Liberties Association, Native Women’s Association of Canada, David Asper Centre for Constitutional Rights, Ontario Native Women’s Association, Assembly of Manitoba Chiefs, Canadian Association of Elizabeth Fry Societies, John Howard Society of Canada, Criminal Trial Lawyers’ Association and Association québécoise des avocats et avocates de la défense Interveners Indexed as: R. v.

Sharma 2022 SCC 39 File No.: 39346. 2022: March 23; 2022: November 4.

Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. on appeal from the court of appeal for ontario Constitutional law — Charter of Rights — Right to equality — Discrimination based on race — Right to liberty — Fundamental justice — Sentencing — Aboriginal offenders — Conditional sentences — Aboriginal offender pleading guilty to importing cocaine and seeking conditional sentence — Offender challenging constitutionality of Criminal Code provisions making conditional sentences unavailable for certain serious offences and categories of serious offences — Sentencing judge holding conditional sentence

unavailable for offender and dismissing Charter challenge — Court of Appeal striking down impugned provisions on basis that they are overbroad and discriminate against Aboriginal offenders — Whether unavailability of conditional sentence infringes offender’s Charter -protected rights — Canadian Charter of Rights and Freedoms, ss. 7 , 15(1) — Criminal Code, R.S.C. 1985, c. C-46, ss. 718.2 (e), 742.1 (c), 742.1 (e)(ii). In 2015, S, a woman of Ojibwa ancestry and a member of the Saugeen First Nation, arrived in Toronto on an international flight. Her suitcase was found to contain 1.97 kilograms of cocaine.

She confessed that her partner had promised to pay her $20,000 to bring the suitcase to Canada, and pleaded guilty to importing a Sch. I substance contrary to s. 6(1) of the Controlled Drugs and Substances Act . At the time, S was 20 years old, with no prior criminal record, and was two months behind on rent and facing eviction. S had become a single mother at 17, had few supports, and the prospect of homelessness for her child motivated her to agree to import the drugs.

A pre-sentence ( Gladue ) report also noted that S’s grandmother was a residential school survivor, S’s mother had spent time in foster care, S had been sexually assaulted, and she had dropped out of school due to financial difficulties. S sought a conditional sentence. Conditional sentences are a type of incarceration, provided for under s. 742.1 of the Criminal Code , that permit offenders who meet statutory criteria to serve their sentences under strict surveillance in their communities, rather than in jail.

In 2012, Parliament amended the conditional sentencing regime to make such sentences unavailable for certain serious offences. Three prerequisites must be met before a conditional sentence can be imposed: the offender must not have been convicted of one of the offences listed at paragraphs 742.1 (

b) through (

f) of the Criminal Code ; a court would have otherwise imposed a sentence of imprisonment of fewer than two years; and the safety of the community would not be endangered by the offender serving the sentence in the community. Where these prerequisites are met, a court must consider whether a conditional sentence is appropriate, having regard to the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 . In particular, s. 718.2 (

e) provides that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders”. The 2012 amendments to the Criminal Code prevented S from receiving a conditional sentence. In particular, s. 742.1 (

c) made conditional sentences unavailable for any offence with a maximum term of imprisonment of 14 years or life, such as the offence to which S pleaded guilty. S brought Charter challenges against s. 742.1(

c) and against s. 742.1(e)(ii), which made conditional sentences unavailable for 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 held that a conditional sentence was unavailable to S, dismissed her Charter challenges under ss. 7 and 15 , and imposed a sentence of 18 months’ imprisonment. A majority of the Court of Appeal held that ss. 742.1 (

c) and 742.1 (e)(ii) were overbroad under s. 7 and discriminated against Indigenous offenders like S under s. 15(1) . It struck down the provisions and sentenced S to time served. Held (Karakatsanis, Martin, Kasirer and Jamal JJ. dissenting): The appeal should be allowed and the sentence imposed at first instance restored. Per Wagner C.J. and Moldaver, Côté, Brown and Rowe JJ.: Sections 742.1 (

c) and 742.1 (e)(ii) are constitutional. They do not limit S’s s. 15(1) Charter rights; S 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 they limit S’s s. 7 Charter 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. The two-step test for assessing a s. 15(1) claim requires the claimant to demonstrate that the impugned law or state action

a) creates a distinction based on enumerated or analogous grounds, on its face or in its impact; and

b) imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage. This framework also applies in cases of adverse impact discrimination, which occurs when a seemingly neutral law has a disproportionate impact on members of groups protected on the basis of an enumerated or analogous ground. However, uncertainty in the evidentiary burden in adverse impact cases has arisen when courts collapse the two steps of analysis into one.

The two steps are not watertight compartments or impermeable silos, since each step considers the impact of the impugned law on the protected group. While there may be overlap in the evidence at each step, the two steps ask fundamentally different questions. As such, the analysis at each step must remain distinct from the other. While Karakatsanis J. stresses the “touchstone” of substantive equality, a court’s focus must ultimately be directed to the two-step test.

Where, applying that test, the claimant’s burden at either step of s. 15(1) is not met, there is no infringement of s. 15 and therefore no substantively unequal outcome. The first step for assessing a s. 15(1) claim examines whether the impugned law creates or contributes to a disproportionate impact on the claimant group based on a protected ground. The disproportionate impact requirement necessarily introduces comparison into the first step, and causation is a central issue.

The claimant must establish a link or nexus between the impugned law and the discriminatory impact, but does not need to show why the law being challenged has that impact. Two types of evidence are helpful: evidence about the full context of the claimant group’s situation, and evidence about the outcomes that the impugned law or policy has produced in practice. Ideally, claims of adverse impact discrimination should be supported by both. To give proper effect to the promise of s. 15(1) , however, a claimant’s evidentiary burden cannot be unduly difficult to meet.

Courts should bear in mind that: no specific form of evidence is required; the claimant need not show the impugned law or state action was the only or the dominant cause of the disproportionate impact; the causal connection may be satisfied by a reasonable inference; scientific evidence of causation should be carefully scrutinized; and novel scientific evidence should be admitted only if it has a reliable foundation. The second step asks whether that impact imposes burdens or denies benefits in a manner that has the effect of reinforcing, perpetuating, or exacerbating a disadvantage.

Not every distinction is discriminatory. Courts must examine the historical or systemic disadvantage of the claimant group. Leaving the situation of a claimant group unaffected is insufficient to meet the step two requirement: a negative impact or worsened situation is required. Several factors may assist in determining whether claimants have met their burden at step two: arbitrariness, prejudice, and stereotyping.

Concerning arbitrariness, a distinction that is based on an individual’s actual capacities will rarely be discriminatory; but a distinction that fails to respond to the actual capacities and needs of the members of the

group will often be discriminatory. Stereotyping or prejudice can play a critical role if the impugned law furthers stereotypes and prejudicial notions or stigmatizing ideas about members of a protected group, and, in so doing, perpetuates the disadvantage they experience. With regard to the evidentiary burden at step two, the claimant need not prove that the legislature intended to discriminate, a court may take judicial notice of notorious and undisputed facts, and courts may infer that a law has a discriminatory effect, where such an inference is supported by the available evidence.

In addition, to determine whether a distinction is discriminatory under the second step, courts should consider the broader legislative context. Relevant considerations include: the objects of the scheme, whether a policy is designed to benefit a number of different groups, the allocation of resources, particular policy goals sought to be achieved, and whether the lines are drawn mindful as to those factors. A contextual approach is particularly significant when analyzing the constitutionality of sentencing regimes.

As for the scope of the government’s obligation under s. 15(1) , there is no general, positive obligation on the state to remedy social inequalities or enact remedial legislation, nor is the legislature bound to its current policies. Furthermore, when the state does legislate to address inequality, it can do so incrementally. In the instant case, S has not satisfied her burden at the first step, and thus there is no need to consider step two. Section 15(1) is not infringed. The impugned provisions do not create or contribute to a disproportionate impact on S as an Indigenous offender.

While the crisis of Indigenous incarceration is undeniable, S adduced no statistical information to demonstrate that the impugned provisions create or contribute to increased imprisonment of Indigenous offenders, relative to non-Indigenous offenders. The sentencing judge was required to, and did, take account of the particular circumstances of Indigenous offenders, and that is what Parliament has directed in s. 718.2 (e). However, this provision does not guarantee that Indigenous offenders will not receive carceral sentences.

While it sets out an important policy, it is a legislative provision, not a constitutional imperative. With respect to s. 7 , the impugned provisions limit S’s liberty interests; the question is whether they do so in a manner that accords with the principles of fundamental justice — i.e., whether they are arbitrary or overbroad. As the law’s purpose is the principal reference point, its proper identification is crucial. It is important to characterize this purpose at the appropriate level of generality, and the framing of purpose must be precise and succinct.

The most significant and reliable indicator would be a statement of purpose within the subject law, but courts can also look to the text, context, and scheme of the legislation, and extrinsic evidence. Extrinsic evidence should be used with caution: statements of purpose in the legislative record may be rhetorical and imprecise, or poor indicators of purpose. What is to be identified is Parliament’s purpose, not the purposes of its individual members. Courts should strive to arrive at a precise and succinct statement that faithfully represents the legislative purpose.

Overly broad statements can artificially make impugned provisions unassailable to arguments of overbreadth or arbitrariness. In the instant case, it is clear, from the text, context, scheme and extrinsic evidence, that the purpose of the amendments was to enhance consistency in the conditional sentencing regime by making imprisonment the typical punishment for certain serious offences. The means by which Parliament achieved this purpose was to remove the availability of a conditional sentence for those offences. The effect of the amendments is to reduce the number of sentences served in the community.

A law is overbroad when it imposes limits in a manner that is not rationally connected to the purpose of the law. Given the impugned provisions’ purpose, they are not overbroad. First, maximum sentence is a suitable proxy for offence seriousness. Second, the definition of a serious offence is a normative assessment for which Parliament must be granted significant leeway.

Finally, the seriousness of an offence should not be confused with the circumstances of an offender; while the circumstances which led S to import drugs are tragic and attenuate her moral culpability, those facts do not make her offence any less serious. As for arbitrariness, it exists where there is no connection between the effect of a provision and its purpose. The impugned provisions are not arbitrary. Their purpose is to enhance consistency in the conditional sentencing regime by making imprisonment the typical punishment for certain serious offences.

Where a sentencing judge determines that jail is warranted, offenders convicted of those offences will serve their sentences in jail, rather than in the community. There is an obvious connection between the effect of the provisions and their purpose, and S’s rights are thus not limited arbitrarily. Per Karakatsanis , Martin, Kasirer and Jamal JJ. (dissenting) : In 1999, the Court called Indigenous overincarceration a crisis in the Canadian criminal justice system. Since then, Indigenous incarceration rates have climbed and those of Indigenous women have soared.

Overincarceration is an ongoing source of intergenerational harm to families and communities and a striking sign of the discrimination that Indigenous peoples experience in the criminal justice system. Sentencing law is uniquely positioned to ameliorate the racial inequalities in Canada’s criminal justice system. Ensuring that Canadian sentencing provisions are consistent with the liberty and equality guarantees under the Charter is therefore essential. The Court is required to do so in the instant case. The appeal should be dismissed. Sections 742.1(

c) and 742.1(e)(ii) are unconstitutional. They infringe s. 7 because they deprive some individuals of their liberty in a manner that is overbroad: by using maximum sentences as a proxy for the seriousness of an offence, capturing the most and the least serious criminal conduct, they overstep their aim of punishing more serious offences with incarceration.

They also infringe s. 15(1) because they impair the remedial effect of s. 718.2 (e) — which directs judges to consider alternatives to imprisonment “with particular attention to the circumstances of Aboriginal offenders” — in a manner that creates a distinction on the basis of race, and that reinforces, perpetuates, and exacerbates the historical disadvantages of Indigenous people. With respect to s. 7 of the Charter , incarceration would deprive S of her liberty.

The question is whether the deprivation conforms to the principles of fundamental justice, including the principle that a law that deprives a person of life, liberty or security must not be overbroad. Overbreadth occurs where there is no rational connection between the law’s purposes and some of its impacts. This requires identifying the purpose and the scope of the law to determine whether it goes too far by sweeping conduct into its ambit that bears no relation to its objective. The first step is to determine the purpose of the challenged provisions.

The purpose’s framing should focus on the ends of the legislation rather than on its means, be at an appropriate level of generality and capture the main thrust of the law in precise and succinct terms. Discerning the purpose requires considering the stated objective in the legislation, if any; the text, context and scheme of the legislation; and extrinsic evidence. In the instant case, Parliament’s purpose was to ensure offenders who commit more serious offences serve prison time. This purpose strikes the appropriate balance between precision and generality, without conflating the means

with the ends, nor amounting to a virtual repetition of the provisions. The second step asks whether the law goes further than reasonably necessary to achieve its legislative goals. The ultimate question is whether the law violates basic norms because there is no connection between its purpose and an effect. In the instant case, Parliament used maximum sentences as the gauge of the seriousness of an offence. But maximum sentences only show that an offence is potentially serious, not that it is necessarily so.

Maximum sentences are a flawed proxy for the gravity of offences, which can be committed in circumstances ranging in severity. While maximum sentences provide general guidance, and can assist in setting sentencing ranges, that guidance only goes so far in individual cases. A fit sentence is always defined by the totality of circumstances. As well, the s. 7 analysis cannot simply defer to Parliament’s choices about crime and punishment. There is nothing novel, unwieldy, or unsound about subjecting sentencing law to constitutional scrutiny. Sections 742.1(

c) and 742.1(e)(ii) are overbroad and constitute prima facie infringement of s. 7 of the Charter . They exceed their purpose in applying to offences committed at the lowest range of severity, and in having some effects that bear no relation to their aim. They target more serious offences through the proxy of maximum sentences, yet they capture conduct for which the maximum sentence would far overshoot the offence’s gravity. This impact bears no connection to the provisions’ purpose. Since the provisions are overbroad, it is unnecessary to address whether they are also arbitrary.

To succeed under s. 15(1) , a claimant must show that the law or state action, on its face or in its impact, creates a distinction based on enumerated or analogous grounds, and imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage. While distinct, the two steps may overlap; the same facts that illustrate a distinction may also illustrate its discriminatory character. The evidentiary requirements vary with the context. When a law creates a facial distinction, the test can be satisfied by reading the relevant text.

But claimants in adverse impact cases must show that although the law purports to treat everyone the same, it has a disproportionately negative impact that can be identified by factors relating to enumerated or analogous grounds. For both steps, courts may take judicial notice of social facts where appropriate. The first step is not a preliminary merits screen, nor an onerous hurdle designed to weed out claims on technical bases; it is aimed at ensuring that those who access the protection of s. 15(1) are those it is designed to protect.

The test makes clear that step one only requires a distinction based on a protected ground. Although a distinction can be proven in different ways, evidence of the situation of the claimant group and the physical, social, cultural or other barriers they face, and evidence about the outcomes that the impugned law or policy has produced in practice, are particularly helpful. Ideally, adverse impact claims should be supported by both kinds of evidence, but both are not always required. And while evidence of statistical disparity and of broader group disadvantage may assist, neither is mandatory.

The second step considers the impact of the distinction, asking whether the law has the effect of reinforcing, perpetuating, or exacerbating disadvantage. Claimants may, but need not, prove that the distinction is arbitrary or perpetuates prejudicial or stereotypical attitudes. And while a challenged law may satisfy step two by widening a group’s disadvantage, a law may discriminate without aggravating that disadvantage. What matters is the claimant group’s situation and the actual impact of the law on that situation.

This means the state’s intentions are not decisive — the state can discriminate without intending to. Nor is the absence of differential treatment decisive — discrimination may also arise from a failure to take into account the true characteristics of a disadvantaged group. In practice, true equality may sometimes demand differential treatment, and not every distinction is discriminatory. Even where legislative amendments do produce discriminatory effects, the Charter invites the state to justify rights limitations under s. 1 . Section 15(1) is not a complete code; it must be read together with s. 1 .

The fault-line of the division between them is justification, which falls to the state. A fair burden on claimants is only to show that there is a discriminatory impact. The state then bears the burden of justifying its choices and goals. The majority seeks to revise this framework.

The thrust of its revisions is to raise the bars at each step of the test: by renewing focus on causation, which adds nothing to the existing framework and recalls rejected pre- Charter approaches; by eschewing the test’s language of “create a distinction” for more ambiguous “created or contributed to a disproportionate impact”; by claiming that leaving the situation of a claimant group unaffected is insufficient to meet step two of the test; by importing elements of state justification into step two; by pre-emptively foreclosing the possibility of general, positive obligations on the state to remedy social inequalities or enact remedial legislation; by asserting, without support, that it is not enough to show that the law restricts an ameliorative program at step one; and by diminishing the role of interveners.

These revisions are unsolicited, unnecessary, and contrary to stare decisis , and would dislodge foundational premises of the existing jurisprudence. In the instant case, S has satisfied both stages of the s. 15(1) test. The first question is whether ss. 742.1 (

c) and 742.1 (e)(ii), on their face or in their impact, create a distinction based on enumerated or analogous grounds. The provisions impair an accommodation — the remedial function of s. 718.2 (e) — in a manner that differentially impacts Indigenous offenders. This flows not from the mere existence of historical disadvantage, but from the combined effect of ss. 718.2 (

e) and 742.1 . Conditional sentences under s. 742.1 benefitted a specific sector of Indigenous offenders: those for whom probation was too lenient, but prison too harsh. They allowed courts to integrate Indigenous visions of justice into community-based sanctions. Together with s. 718.2 (e), they provided an ameliorative measure that was intended to facilitate the substantive equality mandate under s. 718.2 (

e) and reduce the overrepresentation of Indigenous offenders in prison. While s. 718.2(

e) does not specifically instruct courts to consider a conditional sentence for an Indigenous offender, excluding conditional sentences from its ambit would greatly diminish its remedial purpose. Prohibiting the use of conditional sentences for some Indigenous offenders undermined the specific accommodation offered by s. 718.2(e): that is, a different sentencing methodology that was animated by their unique needs and circumstances. Given the relationship between s. 718.2(

e) and ss. 742.1 (

c) and 742.1 (e)(ii), the challenged provisions necessarily impact Indigenous offenders differently; a distinction arises from the interaction of these provisions, against a backdrop of facts of which courts must take judicial notice. Further evidence is not required because the distinction is plain. The next question is whether the law imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage.

The claimant group’s historical position of disadvantage in the instant case is a matter of judicial notice and the vast overrepresentation of Indigenous peoples in prisons is well-established. This position of disadvantage is worse still for Indigenous women, many of whom continue to face multiple and compounding forms of discrimination. Conditional

sentences were never meant to be a catch-all solution. But by impairing the Gladue framework, the challenged provisions removed anaccommodation capable of ameliorating, to some degree, these historical disadvantages for S and other Indigenous offenders, whichreinforces, perpetuates, and exacerbates their disadvantage. First, the impugned provisions logically require sentencing judges to imposemore prison sentences than they otherwise would. For Indigenous offenders whose background conditions make them especially unfitfor prison, this only compounds their disadvantage.

Second, the provisions deny offenders a sentencing option that better accords withIndigenous visions of justice, as conditional sentences better facilitate activities that reflect sacred connection between Indigenous peopleand the natural world. By leaving no other realistic option but prison, ss. 742.1(

c) and 742.1(e)(ii) remove an important tool, andsometimes the only tool, for judges to realize restorative justice principles necessary to craft a fair sentence for Indigenous offenders.This not only perpetuates overrepresentation, but perpetuates cultural loss, dislocation, and community fragmentation. Substantiveequality demands a different approach — one that considers the types of sentencing sanctions which may be appropriate in thecircumstances for the offender because of their Aboriginal heritage or connection. The limitations on ss. 7 and 15(1) are not justified under s. 1.

The Crown must demonstrate that the legislative objective ispressing and substantial, and that the means chosen are proportional to that objective, in that: (1) they are rationally connected to thatobjective; (2) they are minimally impairing of the right; and (3) there is proportionality between the deleterious and salutary effects ofthe law.

While the provisions at issue serve a pressing and substantial objective, and while there is a rational connection betweenensuring serious crimes are punished by incarceration and removing the possibility of conditional sentences for certain offences, theprovisions are not minimally impairing. The state must show that there is no less drastic means of achieving the objective; but the Crownhas not shown this in respect of either breach. Nor are the provisions’ salutary effects proportionate to their deleterious effects.

TheCrown has led no evidence to suggest that the benefits to incarcerating those offenders who were formerly eligible for a conditionalsentence outweigh the costs to their liberty. And the costs to the equality interests of Indigenous peoples are still more profound, sincethey may include separation from one’s community, work or family — harms only exacerbated in the case of young single mothers —while contributing to the continued overrepresentation of Indigenous offenders in prison. The state has not met its burden under s. 1. Cases Cited By Brown and Rowe JJ. Considered: R. v.

Gladue, (SCC), [1999] 1 S.C.R. 688; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; R.v. C.P., 2021 SCC 19; Fraser v. Canada (Attorney General), 2020 SCC 28; Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30,[2015] 2 S.C.R. 548; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396; Quebec (Attorney General) v. Alliancedu personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17, [2018] 1 S.C.R. 464; referred to: R. v. Wells,2000 SCC 10, [2000] 1 S.C.R. 207; Andrews v.

Law Society of British Columbia, (SCC), [1989] 1 S.C.R. 143; Law v.Canada (Minister of Employment and Immigration), (SCC), [1999] 1 S.C.R. 497; R. v. Kapp, 2008 SCC 41, [2008] 2S.C.R. 483; Symes v. Canada, (SCC), [1993] 4 S.C.R. 695; Weatherley v. Canada (Attorney General), 2021 FCA 158;RWDSU v. Dolphin Delivery Ltd., (SCC), [1986] 2 S.C.R. 573; Operation Dismantle Inc. v. The Queen, (SCC), [1985] 1 S.C.R. 441; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; Canada(Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Kazemi Estate v.

Islamic Republic of Iran, 2014 SCC 62, [2014] 3S.C.R. 176; R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398; Griggs v. Duke Power Co., 401 U.S. 424 (1971); R. v. J.-L.J., 2000SCC 51, [2000] 2 S.C.R. 600; R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239; Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1S.C.R. 61; Ontario (Attorney General) v. G, 2020 SCC 38; Eldridge v. British Columbia (Attorney General), (SCC),[1997] 3 S.C.R. 624; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; Vriend v. Alberta, (SCC), [1998] 1 S.C.R. 493;R. v. Serov, 2016 BCSC 636, 353 C.R.R. (2d) 264; R. v.

Chen, 2021 BCSC 697; Thibaudeau v. Canada, (SCC), [1995]2 S.C.R. 627; Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657; R. v. EdwardsBooks and Art Ltd., (SCC), [1986] 2 S.C.R. 713; McKinney v. University of Guelph, (SCC), [1990] 3S.C.R. 229; Schachter v. Canada, (SCC), [1992] 2 S.C.R. 679; Gosselin v. Quebec (Attorney General), 2002 SCC 84,[2002] 4 S.C.R. 429; R. v. Morgentaler, (SCC), [1993] 1 S.C.R. 462; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579;Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388; R. v.

Marshall, (SCC), [1999] 3 S.C.R. 533; R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089;Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; R. v. Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180;R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485; Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R.248; Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392; R. v. Heywood, (SCC), [1994] 3 S.C.R.761; R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754; R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500; R. v.

Friesen,2020 SCC 9; R. v. Parranto, 2021 SCC 46; R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328; Chiarelli v. Canada (Minister ofEmployment and Immigration), (SCC), [1992] 1 S.C.R. 711; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; R. v.Neary, 2017 SKCA 29, [2017] 7 W.W.R. 730. By Karakatsanis J. (dissenting) Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433; R. v. Gladue, (SCC), [1999] 1 S.C.R. 688; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; R. v. Moriarity,2015 SCC 55, [2015] 3 S.C.R. 485; R. v.

Neary, 2017 SKCA 29, [2017] 7 W.W.R. 730; R. v. Safarzadeh-Markhali, 2016 SCC 14,[2016] 1 S.C.R. 180; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; R. v. Parranto, 2021 SCC 46; R. v.Laberge (1995), 1995 ABCA 196 , 165 A.R. 375; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90; R. v. Sinclair (1980), (MB CA), 3 Man. R. (2d) 257; R. v. Cheddesingh, 2004 SCC 16, [2004] 1 S.C.R. 433; R. v. L.M., 2008 SCC 31, [2008] 2S.C.R. 163; R. v. Friesen, 2020 SCC 9; R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500; R. v. Luxton, (SCC), [1990] 2 S.C.R. 711; R. v. Turtle, 2020 ONCJ 429, 467 C.R.R. (2d) 153; R. v.

Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; Hunter v.Southam Inc., (SCC), [1984] 2 S.C.R. 145; Andrews v. Law Society of British Columbia, (SCC), [1989] 1S.C.R. 143; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396; Fraser v. Canada (Attorney General), 2020 SCC28; Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17,[2018] 1 S.C.R. 464; Ontario (Attorney General) v. G, 2020 SCC 38; Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2S.C.R. 548; Eldridge v.

British Columbia (Attorney General), (SCC), [1997] 3 S.C.R. 624; Law v. Canada (Minister ofEmployment and Immigration), (SCC), [1999] 1 S.C.R. 497; Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1

S.C.R. 61; R. v. Turpin, (SCC), [1989] 1 S.C.R. 1296; R. v. Chouhan, 2021 SCC 26; Miron v. Trudel, (SCC), [1995] 2 S.C.R. 418; Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18, [2018] 1 S.C.R. 522; R. v.C.P., 2021 SCC 19; Bliss v. Attorney General of Canada, (SCC), [1979] 1 S.C.R. 183; R. v. Spence, 2005 SCC 71,[2005] 3 S.C.R. 458; R. v. Lavallee, (SCC), [1990] 1 S.C.R. 852; Moge v. Moge, (SCC), [1992] 3 S.C.R.813; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692; Inglis v.

British Columbia (Minister ofPublic Safety), 2013 BCSC 2309, 298 C.R.R. (2d) 35; Vriend v. Alberta, (SCC), [1998] 1 S.C.R. 493; R. v. Lloyd, 2016SCC 13, [2016] 1 S.C.R. 130; Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66, [2004] 3 S.C.R. 381; R. v. Oakes, (SCC), [1986] 1 S.C.R. 103; McKinney v. University of Guelph, (SCC), [1990] 3 S.C.R. 229; Weatherall v.Canada (Attorney General), (SCC), [1993] 2 S.C.R. 872; Egan v. Canada, (SCC), [1995] 2 S.C.R.513; Lavoie v. Canada, 2002 SCC 23, [2002] 1 S.C.R. 769; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2S.C.R. 567.

Statutes and Regulations Cited Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22, s. 6. Act to amend the Criminal Code (conditional sentence of imprisonment), S.C. 2007, c. 12, s. 1. Bill C-16, Ending House Arrest for Property and Other Serious Crimes by Serious and Violent Offenders Act, 3rd Sess., 40th Parl., 2010. Canadian Charter of Rights and Freedoms, ss. 1, 7, 12, 15. Constitution Act, 1982, s. 52(1). Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 6(1), (3)(a.1), 8. Corrections and Conditional Release Act, S.C. 1992, c. 20.

Criminal Code, R.S.C. 1985, c. C-46, ss. 57(1), 231(5), 236, 320.13(3), 320.21, 348(1), 450(b),

Part XXIII [repl. 1995, c. 22, s. 6], 718to 718.2, 730(1), 732(1), 742.1 [repl. 2007, c. 12, s. 1; repl. 2012, c. 1, s. 34], 752.01. Criminal Law Improvement Act, 1996, S.C. 1997, c. 18, s. 107.1. Criminal Records Act, R.S.C. 1985, c. C-47, s. 4(2)(b). Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 36(1)(a). Indian Act, R.S.C. 1985, c. I-5. Safe Streets and Communities Act, S.C. 2012, c. 1, s. 34. State Immunity Act, R.S.C. 1985, c. S-18. Youth Criminal Justice Act, S.C. 2002, c. 1, s. 37(10). Authors Cited Canada. House of Commons. House of Commons Debates, vol.

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Adult and youth correctional statistics in Canada, 2018/2019, by Jamil Malakieh. Ottawa, December 2020. Canada. Truth and Reconciliation Commission. Calls to Action. Winnipeg, 2015. Canada. Truth and Reconciliation Commission. The Final Report of the Truth and Reconciliation Commission of Canada, vol. 5,Canada’s Residential Schools: The Legacy. Montréal: McGill-Queen’s University Press, 2015.

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Substantive Equality, Systemic Discrimination and Pay Equity at the Supreme Court of Canada” (2020), 94 S.C.L.R. (2d) 301 . Jackson, Michael. “Locking Up Natives in Canada” (1989), 23 U.B.C. L. Rev. 215. Kerr, Lisa. “How Sentencing Reform Movements Affect Women”, in David Cole and Julian Roberts, eds., Sentencing in Canada: Essays in Law, Policy, and Practice . Toronto: Irwin Law, 2020, 250. Koshan, Jennifer. “Intersections and Roads Untravelled: Sex and Family Status in Fraser v Canada ” (2021), 30:2 Const. Forum 29.

Koshan, Jennifer, and Jonnette Watson Hamilton. “Meaningless Mantra: Substantive Equality after Withler ” (2011), 16 Rev. Const. Stud. 31. Manitoba. Public Inquiry into the Administration of Justice and Aboriginal People. Report of the Aboriginal Justice Inquiry of Manitoba , vol. 1, The Justice System and Aboriginal People . Winnipeg, 1991. McLachlin, Beverley. “Equality: The Most Difficult Right” (2001), 14 S.C.L.R. (2d) 17 . Miller, Kayliah. “Canada’s Mother-Child Program and Incarcerated Aboriginal Mothers: How and Why the Program is Inaccessible to Aboriginal Female Offenders” (2018), 37 C.F.L.Q. 1.

Moon, Richard. “Comment on Fraser v Canada (AG) : The More Things Change” (2021), 30:2 Const. Forum 85. National Judicial Institute. Science Manual for Canadian Judges . Ottawa, 2018. National Research Council and Federal Judicial Center. Reference Manual on Scientific Evidence , 3rd ed. Washington, D.C.: National Academies Press, 2011. Plecas, Darryl, et al. Do Judges Take Prior Record into Consideration? An Analysis of the Sentencing of Repeat Offenders in British Columbia . Abbotsford: University of the Fraser Valley, 2012.

Puchta, Alicja. “ Quebec v A and Taypotat : Unpacking the Supreme Court’s Latest Decisions on

Section 15 of the Charter ” (2018), 55 Osgoode Hall L.J. 665. Roberts, Julian V., and Ronald Melchers. “The Incarceration of Aboriginal Offenders: Trends from 1978 to 2001” (2003), 45 C.J.C.C.J. 211. Rudin, Jonathan. “Aboriginal Over-representation and R. v. Gladue : Where We Were, Where We Are and Where We Might Be Going” (2008), 40 S.C.L.R. (2d) 687 . Rudin, Jonathan. Aboriginal Peoples and the Criminal Justice System . Toronto: Government of Ontario, 2005. Sharpe, Robert J., and Kent Roach. The Charter of Rights and Freedoms , 7th ed. Toronto: Irwin Law, 2021. Sheppard, Colleen.

Inclusive Equality: The Relational Dimensions of Systemic Discrimination in Canada . Montréal: McGill-Queen’s University Press, 2010. Sullivan, Ruth. The Construction of Statutes , 7th ed. Toronto: LexisNexis, 2022. Young, Margot. “Unequal to the Task: ‘Kapp’ing the Substantive Potential of

Section 15” (2010), 50 S.C.L.R. (2d) 183 . APPEAL from a judgment of the Ontario Court of Appeal (Feldman, Gillese and Miller JJ.A.), 2020 ONCA 478 , 152 O.R. (3d) 209, 390 C.C.C. (3d) 1, 465 C.R.R. (2d) 81, 65 C.R. (7th) 1, [2020] O.J. No. 3183 (QL), 2020 CarswellOnt 10511 (WL), setting aside a decision of Hill J., 2018 ONSC 1141 , 405 C.R.R. (2d) 119, 44 C.R. (7th) 341, [2018] O.J. No. 909 (QL), 2018 CarswellOnt 2566 (WL). Appeal allowed, Karakatsanis, Martin, Kasirer and Jamal JJ. dissenting. Jennifer Conroy and Jeanette Gevikoglu , for the appellant. Nader R. Hasan and Stephen Aylward , for the respondent.

Micah B. Rankin , for the intervener the Attorney General of British Columbia. Noah Wernikowski , for the intervener the Attorney General of Saskatchewan. Jonathan Rudin , for the intervener the Aboriginal Legal Services Inc. Eleanore Sunchild , K.C. , and Michael Seed , for the intervener the Federation of Sovereign Indigenous Nations.

Vincent Larochelle , for the intervener the British Columbia Civil Liberties Association. Chris Rudnicki and Theresa Donkor , for the intervener the Queen’s Prison Law Clinic. Robin Nobleman and Ryan Peck , for the interveners the HIV & AIDS Legal Clinic Ontario and the HIV Legal Network. Chantelle van Wiltenburg and Eric V. Gottardi , K.C. , for the intervener the Canadian Bar Association. Alisa Lombard and Aubrey Charette , for the intervener the Women’s Legal Education and Action Fund Inc. Eva Tache-Green , for the intervener the Legal Services Board of Nunavut.

Promise Holmes Skinner and Andrew Bigioni , for the intervener the Criminal Lawyers’ Association (Ontario). Michelle M. Biddulph and David M. Humphrey , for the intervener the Canadian Civil Liberties Association. Laura Ezeuka , for the intervener the Native Women’s Association of Canada. Jessica Orkin and Adriel Weaver , for the intervener the David Asper Centre for Constitutional Rights. Alana Robert and Connor Bildfell , for the intervener the Ontario Native Women’s Association. Carly Fox , for the intervener the Assembly of Manitoba Chiefs.

Emilie Taman , for the intervener the Canadian Association of Elizabeth Fry Societies. Emily Young and Andrew Max , for the intervener the John Howard Society of Canada. Kathryn Quinlan , for the intervener the Criminal Trial Lawyers’ Association. Maxime Raymond and Emmanuelle Arcand , for the intervener Association québécoise des avocats et avocates de la défense. The judgment of Wagner C.J. and Moldaver, Côté, Brown and Rowe JJ. was delivered by Brown and Rowe JJ. — I.

Introduction [ 1 ] Conditional sentences are a form of punishment that allow offenders to serve their sentences in the community, rather than in jail. Parliament created the conditional sentencing regime in 1996. In 2012, it amended the regime to make conditional sentences unavailable for certain serious offences and categories of serious offences. This appeal addresses the constitutionality of certain of those amendments. [ 2 ] In 2015, Ms. Sharma brought into Canada 1.97 kilograms of cocaine. She pleaded guilty to importing a Sch.

I substance contrary to s. 6(1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 (“ CDSA ”), and sought a conditional sentence. However, the 2012 amendments to the Criminal Code , R.S.C. 1985, c. C-46 made conditional sentences unavailable for offences with a maximum term of imprisonment of 14 years or life ( s. 742.1 (c)) and for offences, prosecuted by indictment, having a maximum term of imprisonment of 10 years and involving the import, export, trafficking, or production of drugs ( s. 742.1 (e)(ii)). The sentencing judge held that a conditional sentence was unavailable, and dismissed Ms.

Sharma’s challenges under ss. 7 and 15(1) of the Canadian Charter of Rights and Freedoms . Ms. Sharma appealed. A majority of the Court of Appeal for Ontario held that the impugned provisions ( ss. 742.1 (

c) and 742.1 (e)(ii)) were overbroad under s. 7 , and that they discriminated against Indigenous offenders like Ms. Sharma under s. 15(1) . The Crown appeals from the Court of Appeal’s decision. [ 3 ] We would allow the appeal and restore the sentencing judge’s order. 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. [ 4 ] 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. II. Facts [ 5 ] In June 2015, Ms. Sharma, a woman of Ojibwa ancestry and a member of the Saugeen First Nation, arrived in Toronto on an international flight. Upon inspection, her suitcase was found to contain 1.97 kilograms of cocaine. She confessed that day to the RCMP that her partner had promised to pay her $20,000 to bring the suitcase to Canada.

At the time, she was two months behind on rent and facing eviction. Ms. Sharma was 20 years old, with no prior criminal record. [ 6 ] Ms. Sharma pleaded guilty to importing a Sch. I substance contrary to s. 6(1) of the CDSA . Her sentencing was

contested, and the judge ordered a Gladue report. This report revealed a life of significant hardship and intergenerational trauma. She hadbecome a single mother at 17, had few supports, and the prospect of homelessness for her child motivated her to agree to her partner’srequest. The Gladue report noted that Ms. Sharma’s grandmother was a residential school survivor, that Ms. Sharma’s mother had spenttime in foster care, and that Ms. Sharma had been sexually assaulted and had dropped out of school due to financial difficulties. III.

Legislative Framework [7] Conditional sentences are a type of incarceration provided for under s. 742.1 of the Criminal Code. Such sentencespermit offenders who meet statutory criteria to serve their sentences under strict surveillance in their communities, rather than in jail. [8] Parliament legislated conditional sentences in 1996 in the Act to amend the Criminal Code (sentencing) and otherActs in consequence thereof, S.C. 1995, c. 22. The Act significantly reformed sentencing law (R. v.

Gladue, (SCC),[1999] 1 S.C.R. 688, at para. 39), by including an express statement of the purposes and principles of sentencing, by providing for theconditional sentencing regime itself, and by enacting s. 718.2, which sets out considerations for judges to have regard to whendetermining a fit sentence. In particular, s. 718.2(

e) provides that “all available sanctions, other than imprisonment, that are reasonable inthe circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, withparticular attention to the circumstances of Aboriginal offenders”. [9] Parliament’s principal objectives in enacting this legislation were to reduce sentences of imprisonment and toexpand the use of restorative justice principles in sentencing (Gladue, at para. 48; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, atpara. 15).

Section 718.2(

e) and the conditional sentencing regime in s. 742.1 were aimed at achieving these goals (Proulx, at paras. 21,90 and 127; Gladue, at para. 40; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 31). [10] The Court first considered s. 742.1 in Proulx.

Under the legislation at that time, offenders were not eligible for aconditional sentence if (1) their offence was punishable by a minimum term of imprisonment; (2) the court would impose a term ofimprisonment of more than two years; (3) imposing a conditional sentence would endanger the safety of the community; or (4) imposinga conditional sentence would be inconsistent with the fundamental purposes and principles of sentencing. [11] In 2007, Parliament amended s. 742.1 to provide that conditional sentences would also not be available to offendersconvicted of a “serious personal injury offence” as defined in s. 752.01, or for offenders convicted of other specific crimes (An Act toamend the Criminal Code (conditional sentence of imprisonment), S.C. 2007, c. 12). [12] Parliament again amended s. 742.1 in 2012 in the Safe Streets and Communities Act, S.C. 2012, c. 1, s. 34 (“SSCA”),resulting in the current version of s. 742.1.

It reads as follows: Imposing of conditional sentence 742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, forthe purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community,subject to the conditions imposed under

section 742.3, if (

a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would beconsistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2; (

b) the offence is not an offence punishable by a minimum term of imprisonment; (

c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life; (

d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximumterm of imprisonment is 10 years or more; (

e) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that (

i) resulted in bodily harm, (ii) involved the import, export, trafficking or production of drugs, or

(iii) involved the use of a weapon; and (

f) the offence is not an offence, prosecuted by way of indictment, under any of the following provisions: (

i) section 144 (prison breach), (ii)

section 264 (criminal harassment), (iii)

section 271 (sexual assault), (iv)

section 279 (kidnapping), (

v) section 279.02 (trafficking in persons — material benefit), (vi)

section 281 (abduction of person under fourteen), (vii)

section 333.1 (motor vehicle theft), (viii) paragraph 334( a ) (theft over $5000), (ix) paragraph 348(1)( e ) (breaking and entering a place other than a dwelling-house), (

x) section 349 (being unlawfully in a dwelling-house), and (xi)

section 435 (arson for fraudulent purpose). [ 13 ] While there have been various amendments, the structure of s. 742.1 remains substantially the same as that described in Proulx . In particular, three prerequisites must be met before a conditional sentence can be imposed: (1) the offender was not convicted of one of the offences listed at paras. 742.1(

b) through (f) (“exclusionary provisions”); (2) a court would otherwise impose a sentence of imprisonment of fewer than two years (see Proulx , at paras. 49-61 ); and (3) the safety of the community would not be endangered by the offender serving the sentence in the community (see Proulx , at paras. 62-76 ). [ 14 ] Where these prerequisites are met, a court must consider whether a conditional sentence is appropriate, having regard to the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 ( Proulx , at paras. 77-78 ). IV. Judicial History A.

The Sentencing Decision: Ontario Superior Court of Justice, 2018 ONSC 1141 , 405 C.R.R. (2d) 119 [ 15 ] Ms. Sharma’s sentencing was contested. The Crown provided Ms. Sharma notice of the mandatory minimum sentence (as required by s. 8 of the CDSA ) and sought a sentence of six years’ imprisonment. Ms. Sharma sought a conditional sentence and community service. Three legislative barriers stood in her way: s. 6(3) ( a.1 ) of the CDSA , which set out a mandatory minimum sentence of two years’ imprisonment; s. 742.1 (

b) of the Criminal Code , which made conditional sentences unavailable for any offence with a mandatory minimum term of imprisonment; and s. 742.1 (

c) of the Criminal Code , which made conditional sentences unavailable for any offence with a maximum term of imprisonment of 14 years or life. Ms. Sharma brought Charter challenges against all three provisions, alleging that s. 6(3) ( a.1 ) violates s. 12 and that ss. 742.1(

b) and 742.1(

c) violate ss. 7 and 15 (although she abandoned her s. 7 arguments during oral submissions).

[ 16 ] In light of these constitutional challenges, the Crown unilaterally rescinded the s. 8 CDSA notice (so that the mandatory minimum sentence would not apply to Ms. Sharma). The Crown recommended a sentence of 18 months’ imprisonment. While this left the constitutionality of s. 6(3) ( a.1 ) moot, the sentencing judge chose to decide the issue , concluding that it violated s. 12 of the Charter and could not be saved under s. 1 . As the mandatory minimum sentence did not apply in the circumstances, the constitutionality of s. 742.1 (

b) was also moot and was not decided. [ 17 ] The sentencing judge heard testimony from one expert witness: Dr. Carmela Murdocca. Dr. Murdocca is an Associate Professor in the Department of Sociology at York University and studies “racialization, criminalization and social exclusion of Indigenous and racialized peoples in Canada” (para. 18). Dr. Murdocca’s report indicated that “[a]spects of Indigenous women’s social, economic and cultural experiences often inform their participation in serious offences” (para. 23).

She further opined that “ specific indicators”, such as economic disadvantage and poverty, may render some Indigenous women “more vulnerable to being conscripted into drug couriering” (para. 25). In this way, Dr. Murdocca’s testimony connected drug-related offences committed by Indigenous women to “the legacies of colonia[l] racism” (para. 25). [ 18 ] Dr. Murdocca also testified about the unavailability of conditional sentences for certain drug offences.

The introduction of mandatory minimum sentences for drug trafficking crimes, together with the removal of conditional sentences for any offence with a mandatory minimum, impeded the sentencing regime’s capacity to account for the “contextual and intersectional factors that render Indigenous women vulnerable to [committing] drug crimes” (para. 26). [ 19 ] The sentencing judge held that the mandatory minimum sentence required by s. 6(3)(a.1) of the CDSA was grossly disproportionate in Ms. Sharma’s circumstances, and infringed s. 12 . A fit sentence was 18 months’ imprisonment.

The Crown did not appeal this ruling. [ 20 ] Addressing s. 15, and having regard to the evidence before him, the sentencing judge dismissed Ms. Sharma’s challenge to s. 742.1 (c). Ms. Sharma had adduced “no statistical information” on the impact of removing conditional sentences for various offences (para. 257). He questioned whether such impact existed, noting that sentencing judges “maintai[n] a broad discretion to do justice in individual cases including the imposition of less punitive sanctions for serious offences” (para. 258).

The length of sentence remains within the discretion of a sentencing judge, and other alternatives to imprisonment remain, including suspended sentences and probation. B. Court of Appeal for Ontario, 2020 ONCA 478 , 152 O.R. (3d) 209 [ 21 ] Ms. Sharma appealed her sentence and the dismissal of her s. 15 challenge to s. 742.1 (c); she sought a 24-month conditional sentence. The Court of Appeal also allowed Ms. Sharma to challenge, for the first time, the constitutionality of s. 742.1 (e)(ii). Further, the Court of Appeal allowed Ms. Sharma to renew her s. 7 challenge to s. 742.1 (c). The majority allowed Ms.

Sharma’s appeal, holding that the impugned provisions infringed both ss. 7 and 15, and sentenced her to time served. [ 22 ] As to s. 15, the majority held that the impugned provisions, while facially neutral, created a distinction between Indigenous and non-Indigenous offenders. The constitutionality of s. 742.1 could not be determined without understanding s. 718.2(e). As s. 718.2(

e) was introduced to address “substantive inequality” in the criminal justice system, undermining its operation by restricting the availability of conditional sentences had the effect of perpetuating substantive inequality (paras. 70 and 79). Where, as here, a law removes a remedial provision that was put in place to alleviate the discriminatory effect of other laws, then the removal of that remedial provision may not create a new distinction, but it will reinforce, perpetuate, or exacerbate the discriminatory effect that was intended to be alleviated by the remedial provision.

The effect of the impugned provisions was to exacerbate the disadvantage faced by Indigenous offenders. This was apparent even in the absence of statistical evidence. In the majority’s view, it was an error in law for the sentencing judge to require Ms. Sharma to lead statistical evidence to show this. [ 23 ] With respect to s. 7 , the majority found that the impugned provisions’ purpose was to “maintain the integrity of the justice system by ensuring that offenders who commit serious offences receive prison sentences” (para. 148). In light of this purpose, the legislation was not arbitrary, but it was overbroad.

Parliament intended to ensure offenders who committed serious crimes went to jail, but the impugned provisions jailed offenders “regardless of the underlying conduct of any particular offender” (para. 158). Parliament could have narrowed the reach of the provisions or provided for judicial discretion in exceptional cases, but did not. The Crown advanced no arguments to justify the s. 7 breach under s. 1 . Accordingly, the majority struck down the provisions. [ 24 ] The dissenting judge held that the impugned provisions did not infringe Ms. Sharma’s ss. 7 or 15 rights.

On s. 15(1), he observed that the proper analytical framework was the subject of controversy. The dissenting judge agreed with the majority that Ms. Sharma’s claim met the first step. However, the majority’s application of the test would have the effect of “immunizing ordinary legislation from amendment or repeal” (para. 189). This was impermissible. Parliament had no constitutional obligation to establish the conditional sentencing regime and, therefore, must be allowed to repeal it. In his view, Ms.

Sharma failed to demonstrate that the impugned provisions were arbitrary or unfair, a necessary element under the second step of the s. 15(1) framework. The legislation did not infringe her s. 15 rights. [ 25 ] On s. 7, the dissenting judge generally agreed with the majority’s characterization of the legislation. Contrary to the majority, he held that the impugned provisions are not overbroad, as Parliament’s decision to use maximum sentences as a “rough indicia of seriousness” was appropriate (para. 283). V. Analysis [ 26 ] As a preliminary point, we note that, at the Court of Appeal, Ms.

Sharma challenged the constitutionality of s. 742.1 (

c) and s. 742.1 (e)(ii). The majority held that Ms. Sharma was “affected by both preclusions” (para. 66). We do not see Ms. Sharma as being affected by s. 742.1 (e)(ii), as it applies only to offences for which the maximum term of imprisonment is 10 years. That said, as the majority of the Court of Appeal considered s. 742.1 (e)(ii), and as the parties made submissions on it before this Court, we will address its constitutionality.

A.

Section 15 [27] Section 15(1) of the Charter states: 15

(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law withoutdiscrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental orphysical disability. [28] The two-step test for assessing a s. 15(1) claim is not at issue in this case. It requires the claimant to demonstrate thatthe impugned law or state action: (

a) creates a distinction based on enumerated or analogous grounds, on its face or in its impact; and (

b) imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage (R. v.C.P., 2021 SCC 19, at paras. 56 and 141; Fraser v. Canada (Attorney General), 2020 SCC 28, at para. 27; Kahkewistahaw First Nationv. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548, at paras. 19-20). [29] While this framework is set out in the above-cited cases, its proper application and the burden of proof at each step isnot clear.

That is particularly so in cases of adverse impact discrimination, which “occurs when a seemingly neutral law has adisproportionate impact on members of groups protected on the basis of an enumerated or analogous ground” (Fraser, at para. 30; seealso Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396, at para. 64; Taypotat, at para. 22). Rather than explicitlysingling out members of the protected group for differential treatment, the law does so indirectly (Fraser, at para. 30). This is theallegation here: that, while facially neutral, the impugned provisions disproportionately impact Ms.

Sharma, as an Indigenous woman. [30] Uncertainty in the evidentiary burden in adverse impact cases has arisen when courts collapse the two steps ofanalysis into one, as the majority at the Court of Appeal did here (see para. 83). The two steps are not watertight compartments or“impermeable silos” (Fraser, at para. 82), since each step considers the impact of the impugned law on the protected group. While theremay be overlap in the evidence that is relevant at each step, the two steps ask fundamentally different questions.

As such, the analysis ateach step must remain distinct from the other. [31] The first step examines whether the impugned law created or contributed to a disproportionate impact on the claimantgroup based on a protected ground. This necessarily entails drawing a comparison between the claimant group and other groups or thegeneral population (Andrews v. Law Society of British Columbia, (SCC), [1989] 1 S.C.R. 143, at p. 164). The second step,in turn, asks whether that impact imposes burdens or denies benefits in a manner that has the effect of reinforcing, perpetuating, orexacerbating a disadvantage.

The conclusion that an impugned law has a disproportionate impact on a protected group (step one) doesnot lead automatically to a finding that the distinction is discriminatory (step two). [32] Deciding the issues raised in this appeal requires us to resolve three particular uncertainties associated with thes. 15(1) framework: (

a) whether the claimant must prove that the impugned law or state conduct caused (in the sense of created or contributed to) thedisproportionate impact on the claimant; (

b) whether the entire legislative context is relevant to the s. 15(1) inquiry; and (

c) whether s. 15(1) imposes a positive obligation on the legislature to enact remedial legislation, and relatedly, whether the legislaturecan incrementally address disadvantage. [33] On a careful reading, this Court’s jurisprudence answers these questions. In so saying, we do not alter the two-steptest for s. 15(1). Rather, we seek to bring clarity and predictability to its application, with a view to assisting parties to Charterchallenges, judges adjudicating them, and legislators seeking to further s. 15’s equality guarantee. [34] We add that it should not be surprising that clarification is necessary.

This Court has described s. 15(1) as theCharter’s “most conceptually difficult provision” (Law v. Canada (Minister of Employment and Immigration), (SCC),[1999] 1 S.C.R. 497, at para. 2). The development of its analytical framework is “daunting” (B. McLachlin, P.C., “Equality: The MostDifficult Right” (2001), 14 S.C.L.R. (2d) 17, at p. 17), and it has gone through multiple formulations since 1989 (A. Puchta, “Quebec v Aand Taypotat: Unpacking the Supreme Court’s Latest Decisions on

Section 15 of the Charter” (2018), 55 Osgoode Hall L.J. 665, atp. 665). Academics have criticized the current framework from various perspectives, the common thread being that it is unclear and,thus, leads to inconsistent application (see, e.g., J. Koshan and J. Watson Hamilton, “Meaningless Mantra: Substantive Equalityafter Withler” (2011), 16 Rev. Const. Stud. 31, at p. 61; M. Young, “Unequal to the Task: ‘Kapp’ing the Substantive Potential of Section15” (2010), 50 S.C.L.R. (2d) 183, at p. 185; R. Moon, “Comment on Fraser v Canada (AG): The More Things Change” (2021), 30:2Const.

Forum 85). [35] Our analysis proceeds in two parts. First, we provide guidance on the application of both steps of the s. 15(1)framework, with a preliminary point about the relationship between substantive equality and the two-step test. Under the first step, wediscuss causation and its relationship with the evidentiary burden to establish disproportionate impact. Under the second step, we discussthree key issues: (1) the claimant’s evidentiary burden to establish that a distinction is discriminatory; (2) the role of legislative context;and (3) the scope of the state’s obligations to remedy social inequalities.

Second, we apply the s. 15(1) framework to the impugnedprovisions. [36] We conclude that Ms. Sharma has not satisfied her burden at the first step. She has not demonstrated that theimpugned provisions create or contribute to increased imprisonment of Indigenous offenders for the relevant offences, relative tonon-Indigenous offenders. The sentencing judge found that Ms. Sharma adduced no statistical information showing that the law createssuch a distinction. While evidence of statistical disparity may not have been required to advance her s. 15 claim, the sentencing judge

was correct to find that Ms. Sharma had not met her evidentiary burden at the first step based on the record presented. The Court ofAppeal erred by interfering with the sentencing judge’s finding of fact, and compounded this error by saying that no such evidentiaryburden need be met.

(1) Guidance on the Section 15(1) Framework (

a) Preliminary Point About Substantive Equality [37] Several recent decisions of this Court refer to substantive equality as the “animating norm” of s. 15 (Fraser, atpara. 42, citing Withler, at para. 2; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, at paras. 15-16; Quebec (Attorney General) v.Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17, [2018] 1 S.C.R. 464, at para. 25).

Inthese decisions, the Court stated that s. 15 of the Charter specifically protects substantive equality. [38] The means by which substantive equality is protected is the application of the two-step test, as set out within each ofthese decisions (Fraser, at para. 27; Withler, at para. 30; Kapp, at para. 17; Alliance, at para. 25). This test has been affirmed repeatedlyat this Court. While our colleague stresses the “touchstone” of substantive equality, a court’s focus must ultimately be directed to the test,as stated by the jurisprudence.

And where, applying that test, the claimant’s burden at either step of s. 15(1) is not met, there is noinfringement of s. 15 (and, therefore, no substantively unequal outcome). (

b) Step One: Proving the Law, on its Face or in its Impact, Creates or Contributes to a Distinction on the Basis of a ProtectedGround [39] Two questions arise. First, what is the standard by which courts should measure impact? And secondly, how mayclaimants prove impact? [40] We start with the difference between impact and disproportionate impact. All laws are expected to impactindividuals; merely showing that a law impacts a protected group is therefore insufficient. At step one of the s. 15(1) test, claimants mustdemonstrate a disproportionate impact on a protected group, as compared to non-group members.

Said differently, leaving a gap betweena protected group and non-group members unaffected does not infringe s. 15(1). [41] The disproportionate impact requirement necessarily introduces comparison into the first step. As McIntyre J.explained in Andrews: “[Equality] is a comparative concept, the condition of which may only be attained or discerned by comparisonwith the condition of others in the social and political setting in which the question arises” (p. 164; see also Fraser, at para. 55). ThisCourt no longer requires a “mirror comparator group” (Withler, at paras. 55-64; Fraser, at para. 94).

However, Withler confirms thatcomparison plays a role at both steps of the s. 15(1) analysis. At the first step, the word “distinction” itself implies that the claimant istreated differently than others, whether directly or indirectly (Withler, at para. 62, cited in Fraser, at para. 48). [42] As we have explained, in adverse impact cases, the law appears facially neutral.

At step one, the claimant mustpresent sufficient evidence to prove the impugned law, in its impact, creates or contributes to a disproportionate impact on the basis of aprotected ground (Fraser, at para. 60, citing Taypotat, at para. 34; Alliance, at para. 26; Symes v. Canada, (SCC), [1993]4 S.C.R. 695, at pp. 764-65). Causation is thus a central issue.

In Withler, the Court observed: In other cases, establishing the distinction will be more difficult, because what is alleged is indirect discrimination: that although the lawpurports to treat everyone the same, it has a disproportionately negative impact on a group or individual that can be identified by factorsrelating to enumerated or analogous grounds. . . .

In that kind of case, the claimant will have more work to do at the first step. [para. 64] [43] Since the Charter’s adoption, “claimants have been required to demonstrate, through evidence, some sort of nexusbetween a particular action of the state, such as legislation, and an infringement of a Charter right or freedom” (Weatherley v. Canada(Attorney General), 2021 FCA 158, at para. 42 , citing RWDSU v. Dolphin Delivery Ltd., (SCC), [1986] 2 S.C.R.573; Operation Dismantle Inc. v. The Queen, (SCC), [1985] 1 S.C.R. 441, at pp. 447 and 490; Symes, at pp. 764-65;Blencoe v.

British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 60; Canada (Attorney General) v.Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paras. 73-78; Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R.176, at paras. 126 and 131-34; R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398, at paras. 251-53). [44] This is confirmed by a long line of s. 15 jurisprudence: the claimant must establish a link or nexus between theimpugned law and the discriminatory impact.

In Symes, the Court stressed the importance of distinguishing between adverse impacts“caused” or “contributed to” by the impugned law and those which “exist independently of” the impugned provision or the state action(p. 765). As Abella J. explained in Taypotat: . . . intuition may well lead us to the conclusion that the provision has some disparate impact, but before we put the [government] to theburden of justifying a breach of s. 15 . . ., there must be enough evidence to show a prima facie breach.

While the evidentiary burdenneed not be onerous, the evidence must amount to more than a web of instinct. [para. 34] [45] The causation requirement between the impugned law or state action and the disproportionate impact is recognized inthe jurisprudence through the words “created” or “contributed to”. Section 15(1) claimants must demonstrate that the impugned law orstate action created or contributed to the disproportionate impact on the claimant group at step one (Symes, at p. 765).

Both terms ⸺“created” and “contributed to” ⸺ describe cause. “Contributed to” merely recognizes that the impugned law need not be the only orthe dominant cause of the disproportionate impact. [46] This is consonant with Fraser.

In that case, Abella J. confirmed that once a claimant demonstrates that the impugnedlaw or state action creates or contributes to the disproportionate impact on a group, they need not go further and show exactly why thelaw being challenged has that impact (Fraser, at paras. 63 and 70; Weatherley, at paras. 66-75). [47] Two examples illuminate Abella J.’s reasoning from Fraser and the associated burden of proof on a claimant at step

one. In Fraser , the claimants had to demonstrate that the pension plan created or contributed to an adverse impact on the enumerated ground of sex. Said differently, the claimants had to prove that state action (the legislated restrictions to the pension plan) created or contributed to the impact (disproportionately reduced pensions) for individuals who were part of a protected group (women).

The Court, however, imposed no further burden of demonstrating that being part of a protected group caused the impact: the claimants did not have to prove they were unable to acquire full-time pension credit because they were women. [ 48 ] For the Court, Abella J. relied on Griggs v. Duke Power Co. , 401 U.S. 424 (1971), to illustrate her reasoning. In Griggs , the claimant did not have to show that he was denied employment opportunities because he was African American.

However, the claimant did have to establish that the high school education requirement created or contributed to the adverse effect of disqualifying African Americans for those jobs as compared to other applicants. Demonstrating that a law created or contributed to a disproportionate impact on a protected group is sufficient for step one. [ 49 ] In confirming the claimant’s causation burden at step one, we are mindful of the evidentiary hurdles and the asymmetry of knowledge (relative to the state) that many claimants face.

In Fraser , Abella J. referred to two types of evidence that are helpful in proving that a law has a disproportionate impact: evidence about the “full context of the claimant group’s situation” ( Withler , at para. 43 , cited in Fraser , at para. 57 ) and evidence about “the outcomes that the impugned law or policy . . . has produced in practice” ( Fraser , at para. 58 .) Ideally, claims of adverse impact discrimination should be supported by both (para. 60). To give proper effect to the promise of s. 15(1), however, a claimant’s evidentiary burden cannot be unduly difficult to meet.

In that regard, courts should bear in mind the following considerations: (

a) No specific form of evidence is required. (

b) The claimant need not show the impugned law or state action was the only or the dominant cause of the disproportionate impact ⸺ they need only demonstrate that the law was a cause (that is, the law created or contributed to the disproportionate impact on a protected group). (

c) The causal connection may be satisfied by a reasonable inference. Depending on the impugned law or state action at issue, causation may be obvious and require no evidence. Where evidence is required, courts should remain mindful that statistics may not be available. Expert testimony, case studies, or other qualitative evidence may be sufficient. In all circumstances, courts should examine evidence that purports to demonstrate a causal connection to ensure that it conforms with standards associated to its discipline. (

d) Courts should carefully scrutinize scientific evidence (see National Judicial Institute, Science Manual for Canadian Judges (2018); see also National Research Council and Federal Judicial Center, Reference Manual on Scientific Evidence (3rd ed. 2011)). (

e) If the scientific evidence is novel, courts should admit it only if it has a “reliable foundation” ( R. v. J.-L.J. , 2000 SCC 51 , [2000] 2 S.C.R. 600, at para. 33 ; see also R. v. Trochym , 2007 SCC 6 , [2007] 1 S.C.R. 239, at para. 36 ). [ 50 ] In

summary, the first step asks whether the impugned provisions create or contribute to a disproportionate impact on the claimant group based on a protected ground as compared to other groups. If a claimant establishes that the law or state action creates or contributes to a disproportionate impact, the court should proceed to the second step. But to be clear, while the evidentiary burden at the first step should not be undue, it must be fulfilled. The particular evidentiary burden on claimants will depend on the claim. What remains consistent is that there is a burden on claimants at step one. (

c) Step Two: Proving the Law Imposes Burdens or Denies Benefits in a Manner That Has the Effect of Reinforcing, Perpetuating, or Exacerbating Their Disadvantage (

i) Evidentiary Burden [ 51 ] It has never been the view of this Court that every distinction is discriminatory ( Andrews , at p. 182). Hence the importance of the second step of the s. 15(1) test, requiring the claimant to establish that the impugned law imposes burdens or denies benefits in a manner that has the effect of reinforcing, perpetuating, or exacerbating the group’s disadvantage. The question becomes, what does it mean to reinforce, perpetuate, or exacer

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