Canada - Law barring conditional sentences for some offences is unconstitutional, court rules

S.J.B.

S.J.B.

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Law barring conditional sentences for some offences is unconstitutional, court rules
Colin Perkel
CBC
July 24th, 2020
A law that bars a judge from imposing a conditional sentence for certain offences was struck down as unconstitutional on Friday in a decision likely to find its way to the country's top court.

In a 2-1 ruling, the Ontario Court of Appeal found the provisions of the Criminal Code run afoul of the the Canadian Charter of Rights and Freedoms because of their impact on Indigenous offenders.

"The impugned amendments deprive the court of an important means to redress systemic discrimination against Aboriginal people when considering an appropriate sanction," the court said. "The reality is that the act will result in more Indigenous offenders serving their sentences in jail rather than in their communities."

The decision came down in the case of Cheyenne Sharma, an Indigenous woman and mother of a small child who was caught in 2015 smuggling almost two kilograms of cocaine into Canada from South America.

Evidence indicated the first-time offender was in desperate financial straits and faced eviction from her home.
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Read the full story here.
 
In Canada, a conditional sentence usually consists of house arrest and/or a curfew.
 
I'm no expert but the court's reasoning is bullshit. A ban on conditional sentences for certain offences won't only result in more Indigenous people serving sentences in prison, but in more of all types of people serving sentences in prison. I understand that their reasoning is that conditional sentences being available to certain ethnic groups (how is that not another form of discriminatory bollocks?) is the constitutional right of those groups so as to avoid discrimination based on ethnicity.

But then, discrimination based on ethnicity thrives in environments where certain ethnic groups are chosen for special treatment.

Stupid reasoning, but I'll take the result.
 
SunriseChampion said:
I'm no expert but the court's reasoning is bullshit. A ban on conditional sentences for certain offences won't only result in more Indigenous people serving sentences in prison, but in more of all types of people serving sentences in prison. I understand that their reasoning is that conditional sentences being available to certain ethnic groups (how is that not another form of discriminatory bollocks?) is the constitutional right of those groups so as to avoid discrimination based on ethnicity.

But then, discrimination based on ethnicity thrives in environments where certain ethnic groups are chosen for special treatment.
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You'll have to take it up with the Supreme Court I'm afraid, the principle that Native American people in this country are more likely to end up committing crimes due to generations of mistreatment and that these circumstances should be taken into consideration in sentencing is enshrined quite deeply in Canadian criminal law (the Gladue principle). Moreover, the focus of this case on the sentences given Native Americans has to do with the fact that the offender in this case was Native American and when considering the constitutionality of a law a court will assess the narrow situation of the offender first. Since the court found that making conditional sentences unavailable to Native American offenders was unconstitutional -- as the defence framed their argument in the context of the Gladue principle -- it was unnecessary to consider the case of offenders more broadly. This doesn't mean that the court is saying that it is only unconstitutional because of how it affects Native American offenders.
 
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