The top court has agreed to review an Ontario Court of Appeal decision that found the Criminal Code provision violated the Charter of Rights because of its impact on aboriginal offenders. In 2016, Cheyenne Sharma, a young Indigenous woman, pleaded guilty to importing two kilograms of cocaine in exchange for $20,000 from her boyfriend, a project she did to avoid eviction for herself and her daughter. “She was between a proverbial rock and a hard place and took the only path available to her to save herself and her daughter,” Sharma’s lawyer, Nader Hasan, told the CBC. Because Sharma is of Ojibway descent and a member of the Saugeen First Nation, the trial court considered her trauma history in sentencing — as required by the Criminal Code since 1999 under the so-called “Gladue principles.” But another part of the Code — enacted in 2012 under then-prime minister Stephen Harper — prohibits community-based sentences for offenses such as drug trafficking that carry maximum sentences of at least 10 years in prison. Sharma challenged that sentencing rule — along with another that called for a mandatory two-year minimum sentence — arguing that it violated her constitutional rights. In February 2018, then-Superior Court Judge Casey Hill, who sentenced her to 17 months in prison, declared the mandatory minimum rule unconstitutional, but rejected Sharma’s challenge to bar the conditional sentence. Sharma challenged Hill’s decision. The Court of Appeal found that the Criminal Code section breached the charter by discriminating against Aboriginal offenders on the basis of race and was too broad for its purpose. Adam Bond is a lawyer for the Native Women’s Association, intervening in the case. He said the 2012 law had a negative impact on indigenous communities. “It also deprives indigenous peoples of their right to self-determination, including their customs and traditions in terms of rehabilitation and healing,” he said. Sharma further challenged the detention time, making the Supreme Court’s decision irrelevant to her case. Hassan said Sharma continued to fight the case to ensure others did not share her experience. “She has taken this case on her back and is fighting for the rights of all Canadians,” he said.
