Aboriginal Legal Services launches charter challenge on mandatory minimum sentence
OTTAWA – The Liberal government is taking so long to unveil its promised sentencing reforms that a Toronto legal agency has decided it would be irresponsible to delay a charter challenge for a young woman facing a mandatory minimum penalty.
“We had hoped that was coming, but it’s not here yet,” said Jonathan Rudin, program director at Aboriginal Legal Services of Toronto.
The charitable organization is intervening in the case of Cheyenne Sharma, a 21-year-old Indigenous woman who pleaded guilty to importing cocaine and is facing a mandatory minimum sentence of two years in prison.
The Liberals have promised legislative changes to mandatory minimum penalties, including at least some of the dozens the Conservatives either brought in or increased over the decade they were in power as part of their tough-on-crime agenda.
Supporters of mandatory minimum penalties argue they help ensure consistency in sentencing, while critics say they deprive judges of the ability to use their discretion in imposing a punishment that fits the crime and the life circumstances of the offender.
Justice Minister Jody Wilson-Raybould, who said earlier this summer about half the charter challenges her officials are tracking involve mandatory minimum penalties, is expected to introduce legislation this fall.
Rudin said she has waited long enough.
“She’s due to be sentenced and she can’t wait,” Rudin said of Sharma, whose case is being heard at the Ontario Superior Court in Brampton, Ont., next week.
“If the government introduces legislation in November and she’s been sentenced to a mandatory minimum sentence of two years, it’s not like people go back and say, ‘Okay, sorry, we don’t mean it’,” he said.
Sharma was arrested in June 2015 at Pearson International Airport with 1.7 kilograms of cocaine – worth $120,000 – inside her suitcase, according to court documents.
The documents say Sharma expected to be paid $20,000 for transporting the bag, and while she was never told specifically it contained drugs, she had an idea.
Sharma said she was behind on rent and facing eviction when the man she was dating said he could help her out with the money – in exchange for taking a vacation and doing a favour for him. Sharma said she needed the money to pay bills and prevent her and her daughter from being rendered homeless, the documents say.
She is a First Nations woman whose grandmother was a residential school survivor, and, according to the court documents, has suffered the effects of intergenerational trauma that has made for a difficult and challenging life.
Aboriginal Legal Services and the lawyer representing Sharma are asking the court to rule that the mandatory minimum sentence would violate section 12 of the Charter of Rights and Freedoms, which protects against cruel and unusual punishment.
They are also arguing that a corresponding restriction on conditional sentences, also known as house arrest, violates the equality rights guaranteed under section 15 of the charter because it has a disproportionate impact on Indigenous offenders.
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The Conservatives brought in both the mandatory minimum penalty and the prohibition against conditional sentences in 2012 as part of the omnibus crime bill known as the Safe Streets and Communities Act.
The Crown says in its written response that the conditional sentence Sharma is seeking is “very far removed” from the conventional range of six to eight years for a crime such as hers.
The Crown acknowledged the mitigating circumstances, but said they cannot be the only thing to consider.
“The reason given by the applicant for committing this offence may attract empathy and, to some extent, mitigate personal culpability,” the Crown argued. “Yet her crime is extremely serious.”
The Crown is recommending a sentence of three and a half years.
Wilson-Raybould said it would be inappropriate to comment on a case before the courts, but repeated her commitment to the ongoing review of the Conservative reforms, including mandatory minimum penalties.
“Our government believes it is important to ensure that all of our laws, including mandatory minimums, promote public safety, are effective in meeting their objectives, and are consistent with our constitutionally protected rights,” she said in a statement.
She also noted the Truth and Reconciliation Commission recommended the federal government amend the Criminal Code to allow trial judges to depart from both mandatory minimum penalties and restrictions on conditional sentences, and that the Liberals had promised to implement them all.
© 2017 The Canadian Press