COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sharma, 2020 ONCA 478

DATE: 20200724

DOCKET: C66390

Feldman, Gillese and Miller
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Cheyenne Sharma

Appellant

Nader Hasan and Stephen Aylward for the
    appellant

Kevin Wilson for the respondent

Khalid
    Janmohamed and Robin Nobleman for the interveners HIV & AIDS Legal Clinic
    Ontario and Canadian HIV/AIDS Legal Network

Jonathan
    Rudin and Emily R. Hill for the intervener Aboriginal Legal Services Legal Clinic

Adam Bond
    for the intervener Native Womens Association of Canada

Promise
    Holmes Skinner and Samara Secter for the intervener the Criminal Lawyers
    Association (Ontario)

Adriel Weaver and Jessica Orkin for the
    interveners Womens Legal Education and Action Fund Inc. and the David Asper
    Centre for Constitutional rights

Heard: November 20, 2019

On appeal from the sentence imposed on February
    20, 2018 by Justice Casey Hill of the Superior Court of Justice, sitting
    without a jury, with reasons reported at 2018 ONSC 1141, 44 C.R. (7th) 341

Feldman J.A.:

Sentencing judges are among those decision‑makers
    who have the power to influence the treatment of aboriginal offenders in the
    justice system. They determine most directly whether an aboriginal offender
    will go to jail, or whether other sentencing options may be employed which will
    play perhaps a stronger role in restoring a sense of balance to the offender,
    victim, and community, and in preventing future crime.

R. v.
    Gladue
, [1999] 1 S.C.R. 688, at para. 65

A.

Overview

[1]

Ms. Sharma is a young Indigenous woman who pleaded
    guilty to importing a significant quantity of cocaine, contrary to s. 6(1) of
    the
Controlled Drugs and Substances Act
, S.C. 1996, c. 19, and
    received a sentence of 17 months incarceration.

[2]

At her sentencing hearing, Ms. Sharma asked the
    court to strike down s. 742.1(c) of the
Criminal Code
, which removes
    the availability of a conditional sentence for offences, prosecuted by
    indictment, where the maximum penalty is 14 years or life in prison, under s.
    15 of the
Charter of Rights and Freedoms
, because its effect is to
    discriminate against Aboriginal offenders on the basis of race. The sentencing
    judge rejected the application and imposed the custodial sentence.

[3]

On this sentence appeal, Ms. Sharma asks the
    court to strike down s. 742.1(c), and a similar provision in s. 742.1(e)(ii),
[1]
on the basis that they
    contravene two sections of the
Charter
: they contravene s. 15 of the
Charter
because their effect is to discriminate against Aboriginal offenders on the
    basis of race, and they contravene s. 7 of the
Charter
because they
    are arbitrary and overbroad in relation to their purpose. While the s. 7
    challenge was initially raised before the sentencing judge, it was withdrawn at
    the submission stage after all the evidence was heard and he did not rule on it.
    This court allowed Ms. Sharma to raise the s. 7 challenge on the appeal.

[4]

I agree with Ms. Sharma that the impugned
    provisions contravene both ss. 7 and 15 of the
Charter
and are not saved
    by s. 1. I would allow the appeal and strike down the provisions. I would set
    aside Ms. Sharmas custodial sentence. As submitted by Ms. Sharma, the
    appropriate sentence would have been 24 months less a day, to be served
    conditionally. However, as Ms. Sharma has served her custodial sentence, I
    would substitute a sentence of time served.

B.

The Offender and the Offence

[5]

Ms. Sharma is a 25-year-old Canadian woman of
    Ojibwa ancestry and is a member of the Saugeen First Nation.

[6]

On June 27, 2015, Ms. Sharma returned from a trip
    to Surinam, landing at Toronto Pearson International Airport with a suitcase
    containing 1971.5 grams of cocaine. She needed money because she was behind on
    rent and facing eviction. She agreed to fly to Surinam to retrieve the drugs in
    exchange for $20,000 from her boyfriend to avoid homelessness for herself and
    for her daughter. After she was apprehended, she confessed to the RCMP that she
    had been paid to transport the cocaine, which had an estimated street value of
    roughly $130,000. She was 20 years old when she imported the drugs, and she had
    no prior criminal record.

[7]

After pleading guilty to importing two kilograms
    of cocaine contrary to s. 6(1) of the
CDSA
, Ms. Sharma described her
    personal circumstances to a case worker in the following terms, as part of a
    report of Ms. Sharmas personal history filed pursuant to
R. v. Gladue
,
    [1999] 1 S.C.R. 688:

Well around the time it happened, I was two
    months behind in rent and I was about to be evicted and I had other bills to
    pay. The guy who I was dating at the time said he could help me out with the
    money but I would have to do something for him. He said I would have to take a
    vacation and do a few things for him down there. I said okay because I didnt
    have any way to get the money to pay off my bills and it needed to be paid or
    else me and my daughter would have gone homeless and I couldnt let that happen
    because I didnt bring life into this would to be raised like that  without a
    home. I wanted to raise my daughter better than I was raised. I wanted to be
    independent and take care of her and when I got behind in rent I didnt know
    what to do but I knew I had to do something about it. I was in a very bad place
     a low point in my life.

I remember the day I had to leave I was
    freaking out. I didnt want to do it but he said I had to do it and he reminded
    me about how I was gonna be evicted. I remember crying outside the airport
    smoking cigarettes before I had to go and check in.

[8]

Ms. Sharma endured significant personal hardship
    growing up.

[9]

As a child, Ms. Sharma, her mother, and her
    siblings moved in with her grandmother, after her father was arrested for
    murder and deported to Trinidad. Her grandmother attended two residential
    schools between the ages of 4 and 16. Given her background, the sentencing judge
    characterized Ms. Sharma as an intergenerational survivor of the governments
    residential school effort to eradicate the cultural heritage of her people: at
    para. 266.

[10]

When Ms. Sharma was 13 years old, she was raped
    by two men while she was walking home. She left school, ran away from home, and
    by age 15, she started working as a sex worker. At 16, she enrolled in high
    school but dropped out because she could not afford the $400 uniform. She is a
    single mother who gave birth to her daughter at age 17. Over the years, she has
    attempted suicide more than once and has struggled with depression and anxiety.

C.

Sentencing Proceedings

[11]

The sentencing proceedings below involved a number
    of legislative provisions and
Charter
challenges by Ms. Sharma.

(1)

Relevant Legislation

[12]

I begin with the regime that governed the
    sentencing of Ms. Sharma.

[13]

First, the offence of importing more than one
    kilogram of a Schedule I substance attracted a mandatory minimum sentence of
    two years imprisonment, pursuant to s. 6(3)(a.1) of the
CDSA
, subject
    to the following proviso, in s. 8:

8
The
    court is not required to impose a minimum punishment unless it is satisfied
    that the offender, before entering a plea, was notified of the possible
    imposition of a minimum punishment for the offence in question and of the
    Attorney Generals intention to prove any factors in relation to the offence
    that would lead to the imposition of a minimum punishment.

[14]

Second, among the general sentencing principles
    contained within ss. 718, 718.1, and 718.2 of the
Criminal Code
, s.
    718.2(e) was notably relevant to the sentencing of an Aboriginal offender like
    Ms. Sharma. That provision codifies the principle 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 Supreme Court has held that s. 718.2(e) specifically
    instructs courts to consider whether to impose a conditional sentence, namely a
    sentence served in the community under strict conditions, pursuant to s. 742.1
    of the
Criminal Code
:
Gladue
, at para. 40.

[15]

Third, a package of
Criminal Code
amendments from 2012, enacted as part of the
Safe Streets and Communities
    Act
, S.C. 2012, c. 1, shaped the sentencing landscape for Ms. Sharma by
    modifying s. 742.1 to make conditional sentences unavailable for offenders
    convicted of certain categories of offence. These amendments are at the crux of
    Ms. Sharmas appeal.

[16]

The relevant parts of s. 742.1, including the
    amendments, read as follows:

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, for the purpose of supervising the offenders behaviour in the community,
    order that the offender serve the sentence in the community, subject to the
    conditions imposed under section 742.3, if

(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;
    [and]

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

(ii)
involved the import, export, trafficking
    or production of drugs[.]

(2)

Constitutional Issues on Sentencing

[17]

Through the intervener, Aboriginal Legal
    Services, Ms. Sharma raised a number of constitutional challenges at the
    sentencing hearing.

[18]

First, she argued that the two-year mandatory
    minimum in s. 6(3)(a.1) of the
CDSA
infringed her right to be free
    from cruel and unusual punishment, contrary to s. 12 of the
Charter
.

[19]

On the day of Ms. Sharmas arrest, the Crown
    served a notice pursuant to s. 8 of the
CDSA
, indicating its intent to
    seek the two-year mandatory minimum sentence. In fact, during the two years
    that followed Ms. Sharmas arrest, the Crown sought a sentence in the six-year
    range. That position changed to three years and six months in the Crown factum
    filed on sentencing in September 2017, on the basis of balancing the
    seriousness of the offence with the
Gladue
factors codified in s.
    718.2(e) of the
Criminal Code
. One week later, the Crown withdrew the
    notice pursuant to s. 8 of the
CDSA
and instead sought a sentence of
    18 months in light of the personal hardship Ms. Sharma had endured.

[20]

The issue then arose whether the court should
    hear the s. 12
Charter
challenge to the two-year mandatory minimum,
    which had been rendered moot by the Crowns changed position. The sentencing
    judge accepted Ms. Sharmas submission that he should hear the s. 12 challenge
    along with the s. 15 challenge. Evidence relevant to the s. 12 issue had
    already been heard, Aboriginal Legal Services had been granted leave to
    intervene, Ms. Sharma was represented, and all parties were prepared for the
    argument.

[21]

The sentencing judge struck down the two-year
    mandatory minimum sentence in s. 6(3)(a.1) of the
CDSA
, as it would
    have constituted cruel and unusual punishment when applied to Ms. Sharma and a
    number of reasonable hypothetical offenders. The Crown has not appealed that
    declaration of invalidity.

[22]

Second, Ms. Sharma initially challenged the
    constitutionality of the restriction on the availability of conditional
    sentences in ss. 742.1(b) and 742.1(c) of the
Criminal Code
on the
    basis that they violated her liberty rights under s. 7 and her equality rights
    under s. 15 of the
Charter
.

[23]

While Ms. Sharmas pleadings and notice of constitutional
    question at trial raised both ss. 7 and 15, the intervener, whose counsel had
    carriage of the
Charter
arguments, abandoned but did not concede the s.
    7 issue at the conclusion of the evidence. The parties thus only argued the s.
    15 issue.

[24]

The sentencing judge rejected Ms. Sharmas s. 15
    challenge to s. 742.1(c). Although he acknowledged that s. 742.1(c) rendered
    offenders like Ms. Sharma ineligible for conditional sentences, he found that
    she had not met her onus of showing discriminatory impact because of a lack of
    statistical information before the court on the impact of the provision on Aboriginal
    offenders. Because conditional sentences remain available for a majority of
    offences, the sentencing judge held that he was unable to determine whether the
    law created a distinction based upon Aboriginal status and, if so, whether that
    distinction gave rise to unconstitutional discrimination.

[25]

As he had struck down the mandatory minimum
    sentence that would have applied to Ms. Sharma, the sentencing judge declined
    to rule on the constitutionality of s. 742.1(b), the provision denying conditional
    sentences to offenders convicted of offences that attract a mandatory minimum
    penalty.

[26]

In the result, the sentencing judge determined
    that an appropriate sentence for Ms. Sharma was 18 months imprisonment,
    reduced to 17 months to take account of her presentence detention and lengthy
    periods on bail.

D.

Issues on Appeal

[27]

Ms. Sharma argues that ss. 742.1(c) and 742.1(e)(ii)
    of the
Criminal Code
are unconstitutional because:

1.

They infringe the
    s. 15 rights of Aboriginal offenders by discriminating on the basis of race.

2.

They infringe her
    s. 7 liberty rights because they are overbroad and arbitrary.

3.

The infringements
    of ss. 7 or 15 cannot be saved by s. 1.

E.

The Legislative Context

[28]

Before turning to the substantive issues in this
    appeal, it is necessary first to provide some context for the impugned
    provisions and their legislative history.

[29]

Conditional sentences came into force in 1996 in
    s. 742.1 of the
Criminal Code
as part of major sentencing reforms
    intended to encourage the application of principles of restorative justice in
    sentencing and to reduce overincarceration and the use of prison sentences,
    where appropriate.

[30]

When they were introduced, conditional sentences
    represented a unique mode of sentencing. Conditional sentences allow a sentencing
    judge to impose a sentence to fit the circumstances of the offender and further
    the goals of denunciation and deterrence, but permit the offender to serve that
    sentence in the community on conditions including a form of house arrest. The
    statutory scheme sets out certain mandatory conditions in s. 742.3(1) and
    confers discretion on the sentencing judge to impose further conditions in s.
    742.3(2). When first enacted, a conditional sentence could be imposed where
    three conditions were met: the offence did not carry a mandatory minimum
    sentence; the sentence imposed was less than two years; and serving the
    sentence in the community would not pose a danger to the community.

[31]

As part of the same reform initiative,
    Parliament also enacted s. 718.2(e). That provision instructs sentencing judges
    to consider all available sanctions other than imprisonment for all offenders,
    with particular attention to the circumstances of aboriginal offenders.

[32]

At the time the reforms were adopted, the
    Minister of Justice explained to the House of Commons Standing Committee on
    Justice and Legal Affairs that alternatives to incarceration were necessary
    given the reality that Aboriginal offenders were overrepresented in prisons, as
    quoted at para. 47 of
Gladue
:

[T]he reason we referred specifically [in s.
    718.2(e)] to aboriginal persons is that they are sadly overrepresented in the
    prison populations of Canada. I think it was the Manitoba justice inquiry that
    found that although aboriginal persons make up only 12% of the population of
    Manitoba, they comprise over 50% of the prison inmates. Nationally aboriginal
    persons represent about 2% of Canadas population, but they represent 10.6% of
    persons in prison. Obviously theres a problem here.

What were trying to do, particularly having
    regard to the initiatives in the aboriginal communities to achieve community
    justice, is to encourage courts to look at alternatives where its consistent
    with the protection of the public  alternatives to jail  and not simply
    resort to that easy answer in every case.

[33]

In other words, Parliament recognized the
    significant problem of overrepresentation of Aboriginal people in prisons in
    Canada, and enacted both a directive to sentencing judges in s. 718.2(e) and,
    most importantly, a real tool to address the problem in s. 742.1: the
    conditional sentence.

[34]

In its landmark 1999 decision in
Gladue
,
    the Supreme Court identified s. 718.2(e) as a watershed, not merely a
    restatement of existing principles of restraint in sentencing: at para. 39. The
    court stated, at para. 40, that the purpose of s. 718.2(e) was remedial,
    particularly given the concurrent introduction of the conditional sentence in
    s. 742.1:

The availability of the conditional sentence
    of imprisonment, in particular, alters the sentencing landscape in a manner
    which gives an entirely new meaning to the principle that imprisonment should
    be resorted to only where no other sentencing option is reasonable in the
    circumstances. The creation of the conditional sentence suggests, on its face,
    a desire to lessen the use of incarceration. The general principle expressed in
    s. 718.2(e) must be construed and applied in this light.

[35]

In its analysis of the purpose of s. 718.2(e) as
    it relates specifically to Aboriginal people, the court discussed at length the
    serious problem of aboriginal overrepresentation in Canadian prisons:
Gladue
,
    at para. 59. The court observed that this problem is well documented and only
    one manifestation of the broader issue of Aboriginal overrepresentation in the
    criminal justice system, noting, at para. 61:

Not surprisingly, the excessive imprisonment
    of aboriginal people is only the tip of the iceberg insofar as the estrangement
    of the aboriginal peoples from the Canadian criminal justice system is
    concerned. Aboriginal people are overrepresented in virtually all aspects of
    the system. As this Court recently noted in
R. v. Williams
, [1998] 1
    S.C.R. 1128, at para. 58, there is widespread bias against aboriginal people
    within Canada, and [t]here is evidence that this widespread racism has
    translated into systemic discrimination in the criminal justice system.

[36]

The court then addressed the limited but
    important role that sentencing judges could play in remedying injustice against
    Aboriginal people, at para. 65 of
Gladue
:

It is clear that sentencing innovation by
    itself cannot remove the causes of aboriginal offending and the greater problem
    of aboriginal alienation from the criminal justice system. The unbalanced ratio
    of imprisonment for aboriginal offenders flows from a number of sources,
    including poverty, substance abuse, lack of education, and the lack of
    employment opportunities for aboriginal people. It arises also from bias
    against aboriginal people and from an unfortunate institutional approach that
    is more inclined to refuse bail and to impose more and longer prison terms for
    aboriginal offenders. There are many aspects of this sad situation which
    cannot be addressed in these reasons.
What can and must be addressed,
    though, is the limited role that sentencing judges will play in remedying
    injustice against aboriginal peoples in Canada. Sentencing judges are
    among those decision‑makers who have the power to influence the treatment
    of aboriginal offenders in the justice system. They determine most
    directly whether an aboriginal offender will go to jail, or whether other
    sentencing options may be employed which will play perhaps a stronger role in
    restoring a sense of balance to the offender, victim, and community, and in
    preventing future crime.
[Emphasis added.]

[37]

Importantly, the court in
Gladue

rejected
    the suggestion that sentences that prioritize restorative justice principles are
    more lenient than sentences that impose a term of imprisonment. Rather, they
    reflect Aboriginal justice concepts and enable a sentencing judge to impose a
    sentence that will better serve the purposes of sentencing for an Aboriginal offender,
    as the court recognized at para. 74 of
Gladue
:

[O]ne of the unique circumstances of
    aboriginal offenders is that community-based sanctions coincide with the
    aboriginal concept of sentencing and the needs of aboriginal people and
    communities. It is often the case that neither aboriginal offenders nor their
    communities are well served by incarcerating offenders, particularly for less
    serious or non-violent offences. Where these sanctions are reasonable in the
    circumstances, they should be implemented. In all instances, it is appropriate
    to attempt to craft the sentencing process and the sanctions imposed in
    accordance with the aboriginal perspective.

[38]

On the issue of the relationship between s. 15
    of the
Charter
and s. 718.2(e), the court stated, at para. 87 of
Gladue
:

There is no constitutional challenge to s. 718.2(e)
    in these proceedings, and accordingly we do not address specifically the
    applicability of s. 15 of the
Charter
. We would note, though, that the aim
    of s. 718.2(e) is to reduce the tragic overrepresentation of aboriginal people
    in prisons. It seeks to ameliorate the present situation and to deal with the
    particular offence and offender and community. The fact that a court is called
    upon to take into consideration the unique circumstances surrounding these
    different parties is not unfair to non‑aboriginal people. Rather, the
    fundamental purpose of s. 718.2(e) is to treat aboriginal offenders fairly by
    taking into account their difference.

[39]

However, the court also explained that the
    remedial nature of s. 718.2(e) does not require an automatic reduction in
    sentence for all Aboriginal offenders. Rather, the court held at para. 88,
    sentencing continues to reflect the full circumstances of the offender and the
    offence, including the factor set out in s. 718.2(e):

[Section 718.2(e)] is one of the statutorily
    mandated considerations that a sentencing judge must take into account. It may
    not always mean a lower sentence for an aboriginal offender. The sentence
    imposed will depend upon
all
the factors which must be taken into
    account in each individual case. The weight to be given to these various
    factors will vary in each case. At the same time, it must in every case be
    recalled that the direction to consider these unique circumstances flows from
    the staggering injustice currently experienced by aboriginal peoples with the
    criminal justice system. The provision reflects the reality that many
    aboriginal people are alienated from this system which frequently does not
    reflect their needs or their understanding of an appropriate sentence. [Emphasis
    in original.]

[40]

By 2012, courts in Canada had had 13 years to
    implement the Supreme Courts directions in
Gladue
. However, in
R.
    v. Ipeelee
, 2012 SCC 13, [2012] 1 S.C.R. 433, the majority of the Supreme
    Court reported that overrepresentation and alienation of Aboriginal peoples in
    the criminal justice system ha[d] only worsened since
Gladue
and the
    1996
Criminal Code
amendments: at para. 62. The majority accepted that
    the failure to alleviate the situation could be the result of ongoing
    misunderstanding and misapplication of s. 718.2(e) and the
Gladue
decision. Writing for the majority, LeBel J. sought to provide additional
    guidance. He recognized, at para. 65, that overincarceration of Aboriginal
    people could be caused or contributed to by two circumstances: either Aboriginal
    people commit a disproportionate number of crimes, or they are the victims of a
    discriminatory justice system.

[41]

LeBel J. explained that the sentencing process
    can address both phenomena. Specifically, sentencing judges can address the first
    circumstance by imposing just sentences that meet the needs of Aboriginal offenders
    and their communities, thereby deterring criminality and rehabilitating
    offenders:
Ipeelee
, at para. 66.

[42]

It is the second circumstance, however, that is
    the focus of s. 718.2(e). The role of sentencing judges, as front-line workers
    in the criminal justice system, is to ensure that systemic factors do not
    inadvertently produce discriminatory sentencing results:
Ipeelee
, at
    para. 67. Factors such as employment status, family support, and education
    influence whether a person goes to jail in a borderline case. The court
    accepted that because social, political, and economic forces cause many Aboriginal
    people to experience instability in these areas, they are sentenced to jail
    more often, reflecting systemic discrimination:
Ipeelee
, at para. 67.

[43]

The remedy available to sentencing judges is to
    impose just sanctions that do not operate in a discriminatory manner. At para.
    72, LeBel J. instructed sentencing judges to consider:

(1) the unique systemic and background factors
    which may have played a part in bringing the particular Aboriginal offender
    before the courts; and (2) 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. Both sets of circumstances
    bear on the ultimate question of what is a fit and proper sentence.

[44]

In
Ipeelee
, the court emphasized and
    repeated the principles from
Gladue
, that Aboriginal communities traditionally
    have different conceptions of just punishment. By crafting a sentence to be
    served with appropriate conditions in the community that takes those views into
    account, the sentence imposed may be viewed as more just and may therefore be
    more effective in achieving the objectives of sentencing.

[45]

The court also strongly rejected the suggestion
    that treating Aboriginal offenders differently in sentencing violates the
    parity principle, codified in s. 718.2(b) of the
Criminal Code
. That suggestion
    ignores the impact of the history of Aboriginal peoples in Canada, given that
    [t]he overwhelming message emanating from the various reports and commissions
    on Aboriginal peoples involvement in the criminal justice system is that
    current levels of criminality are intimately tied to the legacy of
    colonialism: at para. 77.

[46]

Finally, LeBel J. identified two major errors
    that sentencing courts had made following
Gladue
that had the effect
    of both significantly curtail[ing] the scope and potential remedial impact of
    s. 718.2(e) as well as thwarting what was originally envisioned by
Gladue
:
Ipeelee
, at para. 80.

[47]

The first error was requiring offenders to prove
    a causal link between the systemic and background factors referred to in s.
    718.2(e) and the commission of the offence. Requiring a causal link is an error
    because it is well recognized that Aboriginal people have suffered from
    systemic discrimination in Canada, the effects of which are interconnected and
    complex. At para. 83 of
Ipeelee
, LeBel J. quoted with approval the
    Aboriginal Justice Inquiry of Manitobas conclusion that:

Cultural oppression,
    social inequality, the loss of self-government and systemic discrimination,
    which are the legacy of the Canadian governments treatment of Aboriginal
    people, are intertwined and interdependent factors, and in very few cases is it
    possible to draw a simple and direct correlation between any one of them and
    the events which lead an individual Aboriginal person to commit a crime or to
    become incarcerated.

[48]

Moreover, s. 718.2(e) does not require proof of
    causation:
Ipeelee
, at para. 83. The background factors are not an
    excuse for committing the crime, but are instead the context for assessing and
    imposing an appropriate sentence: at para. 83.

[49]

The second error LeBel J. highlighted in sentencing
    decisions since
Gladue
related to the applicability of
Gladue

principles to serious or violent offences. Courts had picked up on one
    comment from
Gladue
, at paras. 33 and 79, that suggested that for such
    offences, Aboriginal offenders and other offenders would likely receive similar
    jail sentences. In
Ipeelee
, at paras. 86-87, LeBel J. clarified that
    the
Gladue
framework was obligatory in every case and that the
    sentencing court has a duty to apply s. 718.2(e), including for serious and
    violent offences:

Trying to carve out an exception from
Gladue
for serious offences would inevitably lead to inconsistency in the
    jurisprudence due to the relative ease with which a sentencing judge could
    deem any number of offences to be serious ([
R.
    Pelletier, The Nullification of Section 718.2(e): Aggravating Aboriginal
    Over-representation in Canadian Prisons (2001), 39 Osgoode Hall L.J. 469]
,
    at p. 479). It would also deprive s. 718.2(e) of much of its remedial power,
    given its focus on reducing overreliance on incarceration. A second question
    arises: Who are courts sentencing if not the offender standing in front of them?
    If the offender is Aboriginal, then courts must consider all of the
    circumstances of that offender, including the unique circumstances described in
Gladue
. There is no sense comparing the sentence that a particular
    Aboriginal offender would receive to the sentence that some hypothetical
    non-Aboriginal offender would receive, because there is only one offender
    standing before the court.

The sentencing judge has a statutory duty,
    imposed by s. 718.2(e) of the
Criminal Code
, to consider the unique
    circumstances of Aboriginal offenders. Failure to apply
Gladue
in any
    case involving an Aboriginal offender runs afoul of this statutory obligation.
    As these reasons have explained, such a failure would also result in a sentence
    that was not fit and was not consistent with the fundamental principle of
    proportionality. Therefore, application of the
Gladue
principles is
    required in every case involving an Aboriginal offender, including breach of [a
    long-term supervision order], and a failure to do so constitutes an error
    justifying appellate intervention.

[50]

In
Gladue
and
Ipeelee
, the
    Supreme Court made clear that when sentencing Aboriginal offenders, sentencing
    judges must consider all available sanctions other than imprisonment that are
    reasonable in the circumstances of the case. Section 718.2(e) is focus[ed] on
    reducing overreliance on incarceration:
Ipeelee
, at para. 86. A
    significant alternative to incarceration is the conditional sentence, which
    Parliament created in s. 742.1.

[51]

Section 742.1 read as follows, as originally
    enacted:

742.1
Where a person is convicted of an offence, except an offence that is punishable
    by a minimum term of imprisonment, and the court

(a)
imposes a sentence of imprisonment of less than two years, and

(b)
is satisfied that serving the sentence in the community would not
    endanger the safety of the community,

the court may, for the purpose of
    supervising the offenders behaviour in the community, order that the offender
    serve the sentence in the community, subject to the offenders complying with
    the conditions of a conditional sentence order made under section 742.3.

[52]

An important clarification was added in 1997,
    modifying the language of s. 742.1(b) to ensure that a conditional sentence
    would only be imposed when it would be consistent with the purposes and principles
    of sentencing in ss. 718-718.2:

742.1(b)
is satisfied that serving the sentence in the community would not
    endanger the safety of the community and would be consistent with the
    fundamental purpose and principles of sentencing set out in sections 718 to
    718.2,

[53]

In 2007, Parliament amended the section to
    provide some further restrictions on the availability of the conditional
    sentence. The amended version provided:

742.1
If a person is convicted of an offence, other than a serious
    personal injury offence as defined in section 752, a terrorism offence or a
    criminal organization offence prosecuted by way of indictment for which the
    maximum term of imprisonment is ten years or more or an offence punishable by a
    minimum term of imprisonment, and the court imposes a sentence of imprisonment
    of less than two years and is satisfied that the service of the sentence in the
    community would not endanger the safety of the community and would be
    consistent with the fundamental purpose and principles of sentencing set out in
    sections 718 to 718.2, the court may, for the purpose of supervising the
    offenders behaviour in the community, order that the offender serve the
    sentence in the community, subject to the offenders compliance with the
    conditions imposed under section 742.3.

[54]

Finally, in 2012, Parliament enacted the
Safe
    Streets and Communities Act
, which included the amendment to s. 742.1 to
    eliminate the availability of a conditional sentence for a broad array of
    offences, including the ones applicable to Ms. Sharma, in ss. 742.1(c) and 742.1(e)(ii):

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, for the purpose of
    supervising the offenders behaviour in the community, order that the offender
    serve the sentence in the community, subject to the conditions imposed under
    section 742.3, if

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

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

(ii)
involved the import, export, trafficking or production of drugs[.]

[55]

In enacting the
Safe Streets and Communities
    Act
, the Parliamentary debates reveal that no consideration was given to
    the potential effect of the amendments on Aboriginal offenders. The issue was
    raised by opposition members and in the Senate, but no response was made.

F.

Section 15

[56]

Ms. Sharma argues that ss. 742.1(c) and 742.1(e)(ii)
    violate the s. 15 equality rights of Aboriginal persons. I would give effect to
    this ground of appeal.

(1)

Reasons of the Sentencing Judge Rejecting the s. 15 Challenge

[57]

The sentencing judge framed the impact of s.
    742.1(c) on Ms. Sharma at para. 242 of his reasons as follows:

Prior to enactment of
    the [
Safe Streets and Communities Act
] in 2012, offenders in Ms.
    Sharmas position, for approximately a 16-year period, would have been eligible
    for, and did in appropriate cases, receive a conditional sentence disposition.
    Now, because s. 742.1(c) of the
Code
eliminates such a sanction for
    offences carrying a maximum sentence of life imprisonment, a sentencing court
    has no resort to the option of imposing imprisonment on a conditional basis.

[58]

The sentencing judge began the analysis of the
    constitutionality of this provision by setting out the two-part test from
R.
    v. Kapp
,
2008 SCC 41, [2008] 2 S.C.R. 483, at para. 248 of his
    reasons:
(1) does the impugned law
    create a distinction based on an enumerated or analogous ground?, and (2) does
    such a distinction so found create a disadvantage by perpetuating prejudice or
    stereotyping?

[59]

The sentencing judge held that the s. 15 argument
    failed on the first prong. For most crimes, a conditional sentence remains
    available, and in the absence of a statistical record demonstrating a
    differential impact on Indigenous offenders, the sentencing judge concluded
    that the legislation did not create a distinction.

[60]

He held that the absence of the option of a conditional
    sentence for certain offences did not impair his broad discretion to do
    justice in individual cases including the imposition of less punitive sanctions
    for serious offences: at para. 258. Among those less punitive sanctions,
    sentencing judges could impose suspended sentences or probation, or fix a
    reformatory sentence at an appropriate length for the circumstances of the
    offender. Finally, the sentencing judge noted that the continued availability
    of parole and temporary absence permits attenuates the adverse impact of a
    custodial sentence.

[61]

As a result, he
    dismissed Ms. Sharmas s. 15
Charter

application.

(2)

The Legal Principles

[62]

Section 15(1) of the
Charter
provides
    the following guarantee:

Every individual is equal before and
    under the law and has the right to the equal protection and equal benefit of
    the law without discrimination and, in particular, without discrimination based
    on race, national or ethnic origin, colour, religion, sex, age or mental or
    physical disability.

[63]

The test for determining whether a law
    contravenes this guarantee has evolved since the Supreme Courts decision in
Kapp
.
    It was most recently restated by the Supreme Court in
Kahkewistahaw First
    Nation v. Taypotat
, 2015 SCC 30, [2015] 2 S.C.R. 548,

and that
    restatement was confirmed by the majority in
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. In
Taypotat
, the court
    repeated that s. 15 protects substantive equality, and that its focus is on
    laws that draw
discriminatory

distinctions
 that is, distinctions that have the effect of
    perpetuating arbitrary disadvantage based on an individuals membership in an
    enumerated or analogous
group (emphasis in original): at para. 18.

[64]

There are two parts to the analysis. First, the
    court must determine whether, on its face or in its impact, a law creates a
    distinction on the basis of an enumerated or analogous ground:
Taypotat
,
    at para. 19;
Centrale des syndicats du Québec v. Quebec (Attorney General)
,
    2018 SCC 18, [2018] 1 S.C.R. 522, at para. 22. In
Quebec v. Alliance
, at
    para. 26, the court elaborated on the purpose and scope of the first step of
    the analysis: it is neither a preliminary merits screening, nor an onerous
    hurdle designed to weed out claims on technical bases. Instead, its purpose is
    to ensure that s. 15(1) of the
Charter
is accessible to those whom it
    was designed to protect, and to exclude claims that have nothing to do with
    substantive equality:
Quebec v. Alliance
, at para. 26, citing
Taypotat
,
    at para. 19.

[65]

The second part of the analysis focuses on
    arbitrary or discriminatory disadvantage and asks whether the impugned law fails
    to respond to the actual capacities and needs of the members of the group and
    instead imposes burdens or denies a benefit in a manner that has the effect of
    reinforcing, perpetuating or exacerbating their disadvantage:
Taypotat
,
    at para. 20;
Centrale
, at para. 22. The onus on the claimant is to
    demonstrate that the law at issue has a disproportionate effect on the
    claimant based on his or her membership in an enumerated or analogous group:
Taypotat
,
    at para. 21. However, at this second stage of the analysis, the specific evidence
    required will vary depending on the context of the claim and evidence that
    goes to establishing a claimants historical position of disadvantage will be
    relevant:
Taypotat
, at para. 21, citing
Withler v. Canada
    (Attorney General)
, 2011 SCC 12, [2011] 1 S.C.R. 396, at para. 38. In
Quebec
    v. Alliance
, the majority clarified that at the second step, the focus is
    not on whether a discriminatory attitude exists, or on whether a distinction
    perpetuates negative attitudes about a disadvantaged group, but rather on the
    discriminatory
impact
of the distinction (emphasis in original): at
    para. 28.

(3)

Analysis

[66]

The effect of the
Safe Streets and
    Communities Act
s amendment resulting in ss. 742.1(c) and 742.1(e)(ii) is
    to preclude sentencing judges from imposing a conditional sentence on an
    offender convicted of an offence prosecuted by indictment where the maximum
    term of imprisonment is 14 years or life, or an offence prosecuted by
    indictment involving the import, export, trafficking or production of drugs,
    where the maximum term of imprisonment is 10 years. Ms. Sharma is affected by
    both preclusions.

[67]

The sentencing judge rejected Ms. Sharmas
    submission that the impugned provisions contravene s. 15 of the
Charter
because their effect is to deny Ms. Sharma the equal benefit of the law by
    discriminating against her on the basis of race. In my view, he erred in his
    conclusion and in his analysis. I would answer the two parts of the
Taypotat
analysis by holding, first, that the impugned provisions, in their impact on Aboriginal
    offenders including Ms. Sharma, create a distinction on the basis of race; and,
    second, that the provisions deny Ms. Sharma a benefit in a manner that has the
    effect of reinforcing, perpetuating, and exacerbating her disadvantage as an Aboriginal
    person.

(a)

Distinction on the Basis of an Enumerated or Analogous Ground

[68]

The first question is whether the impugned provisions
    create a distinction on an enumerated or analogous ground, either on their face
    or in their impact. Limiting claims to enumerated or analogous grounds screens out
    claims having nothing to do with substantive equality:
Taypotat
, at
    para. 19.

[69]

Sections 742.1(c) and 742.1(e)(ii) are facially
    neutral. On their face, they apply equally to all offenders. However, it is in
    their effect that they create a distinction.

[70]

Aboriginal offenders start from a place of
    substantive inequality in the criminal justice system. The overincarceration of
    Aboriginal people is one of the manifestations of that substantive inequality,
    which prompted Parliament to create the community-based conditional sentence
    and direct sentencing judges to consider that sanction, along with all others
    that do not involve imprisonment, when determining an appropriate punishment
    for Aboriginal offenders. The conditional sentence is one means of redressing
    the substantive inequality of Aboriginal people in sentencing. It is certainly
    the case that conditional sentences are available to all offenders, not just
    Aboriginal offenders. However, the legislative history and jurisprudence demonstrate
    that conditional sentences take on a unique significance in the context of
    Aboriginal offenders by conferring the added benefit of remedying systemic
    overincarceration. By removing that remedial sentencing option, the impact of
    the impugned provisions is to create a distinction between Aboriginal and non-Aboriginal
    offenders based on race.

[71]

An analogy can be drawn between the
Safe
    Streets and Communities Act
amendments in this appeal and the legislation
    at issue in
Quebec v. Alliance
. In that case, a majority of the court
    struck down sections of the Quebec
Pay Equity Act
, C.Q.L.R., c.
    E-12.001, a remedial framework designed to redress gender discrimination in the
    workplace, because the impugned provisions maintained pay inequities for a
    period of time and, in that way, perpetuated the pre-existing disadvantage of
    women in the workplace. The provisions therefore had the effect of drawing a
    distinction on the basis of gender.

[72]

Similarly, because the impugned provisions of
    the
Safe Streets and Communities Act
limit the availability of the
    conditional sentence, a significant remedial tool in the
Gladue

framework,
    their effect is to draw a distinction on the basis of race.

[73]

The Crowns position is that the claim fails on
    the first part of the test. The Crown analogizes the claim in this case to the
    s. 15 argument that was rejected by the trial judge in
R. v. Nur
, 2011
    ONSC 4874, 275 C.C.C. (3d) 330, and upheld by this court: 2013 ONCA 677, 117
    O.R. (3d) 401.
[2]
In
Nur
, the appellant argued that the mandatory minimum sentence for a
    firearms offence would affect black offenders disproportionately because they
    are overrepresented in the criminal justice system. Code J. held, at para. 82,
    that the mandatory minimum sentence for the firearms offence did not draw a
    race-based distinction against black offenders because it did not cause any
    discriminatory effect; rather, that effect existed independently of the
    provision. In reaching this conclusion, Code J. endorsed the reasoning of Green
    J. in
R. v. Johnson
, 2011 ONCJ 77, 268 C.C.C. (3d) 423, at para. 130,
    which he quoted at para. 81 as follows:

The Bill C-25 amendments, as I read them, do not
    create a distinction based on race. The impugned provisions apply to all
    offenders. While a disproportionate number of black and native persons may be
    captured by the amendments, they do not distinguish the Applicant from other
    offenders on the basis of his heritage, either in intent or effect. [] [T]he
    current demographic evidence relating to pretrial custody suggests that
    detention orders are correlated with considerations such as attenuated
    community ties, unemployment and a history of prior criminality. These factors
    may disproportionately characterize members of the black and Aboriginal
    community, but they are present in all racial and ethnic groups and
are far
    from universal or defining features of persons sharing either of the Applicants
    ancestries.

Further, the Applicants argument, logically pursued,
    renders much of criminal law  or, at minimum, those statutory instruments
    bearing on penal sanctions  vulnerable to s. 15 challenge on the same footing.
    This hardly seems tenable. [Emphasis added.]

[74]

The Crown argues that similarly in this case,
    the removal of the conditional sentence option does not create any distinction
    between Aboriginal and other offenders  that distinction already exists
    because of the social circumstances of Aboriginal people.

[75]

I reject this argument and the analogy to the
Nur
decision. I do so for three reasons.

[76]

The first reason relates to the final
    observation raised by Code J. in
Nur
, that the s. 15 argument amounted
    to the claim that because black offenders are disproportionately represented in
    the criminal justice system, then any penal provision will have a
    disproportionate effect on that community and will therefore be vulnerable to a
    s. 15 challenge. In this case, the Crown presented a similar floodgates
    argument, namely that Ms. Sharmas claim amounted to saying that s. 742.1(c)
    created a distinction based on race because it was part of a discriminatory
    criminal justice system. In my view, the sentencing judge erred in accepting
    this argument and in characterizing Ms. Sharmas claim in this way.

[77]

Parliaments purpose in enacting s. 718.2(e),
    together with the conditional sentence, was to address the issue of
    overincarceration generally and in particular, the overincarceration of Aboriginal
    offenders in Canada. In
Gladue
, the court stated at paras. 50 and 51:

The parties and interveners agree that the
    purpose of s. 718.2(e) is to respond to the problem of overincarceration in
    Canada, and to respond, in particular, to the more acute problem of the
    disproportionate incarceration of aboriginal peoples.

[O]n the above points of agreement the parties
    and interveners are correct. A review of the problem of overincarceration in
    Canada, and of its peculiarly devastating impact upon Canadas aboriginal
    peoples, provides additional insight into the purpose and proper application of
    this new provision.

[78]

In
Gladue
, the court drew a direct
    connection between ss. 718.2(e) and 742.1, observing that [t]he general
    principle expressed in s. 718.2(e) must be construed and applied in light of
    the desire, reflected in the creation of the conditional sentence, to reduce
    the use of incarceration: at para. 40; see also
R. v. Proulx
, 2000 SCC
    5, [2000] 1 S.C.R. 61, at para. 92. The court acknowledged that
    overincarceration was part of the larger issue of overrepresentation of Aboriginal
    people within the criminal justice system, and the role that systemic
    discrimination played in causing and contributing to the circumstances that
    allowed that problem to develop. However, while the remedial sentencing
    provisions are aimed at addressing the larger issue indirectly through
    restorative justice in the context of sentencing, their direct focus is on
    reducing the number of Aboriginal offenders sentenced to jail.

[79]

The distinction that is created by the impact of
    the impugned provisions relates to the overincarceration of Aboriginal
    offenders, not their overrepresentation in the criminal justice system. By
    removing the ability to impose a conditional sentence instead of a prison sentence
    for an offence, the effect on an Aboriginal offender is to undermine the
    purpose and remedial effect of s. 718.2(e) in addressing the substantive
    inequality between Aboriginal and non-Aboriginal people manifested in overincarceration
    within the criminal justice system, which has been acknowledged by Parliament
    and the courts as requiring redress. I therefore reject the contention that any
    finding of a breach of s. 15 in this case will thereby open all penal
    provisions to a similar s. 15 attack.

[80]

Second, based on
Nur
, the Crown argues that
    the impugned provisions did not create the distinction of overincarceration
    of Aboriginal offenders, which already existed. This submission effectively
    relates to the second part of the analysis: the extent to which the law does or
    does not reinforce, exacerbate or perpetuate disadvantage for the affected
    group. Therefore, this submission properly belongs within the analysis under
    the second part. I nevertheless address it briefly here in response to the
    Crowns submission.

[81]

While the Supreme Court in
Taypotat
, at
    para. 19, used the word creates in the articulation of the first part of the analysis,
    creating a distinction as opposed to perpetuating it was not intended to make
    the first part more onerous.

[82]

The Supreme Court has made clear that the first
    part of the analysis was not intended to foreclose legitimate claims based on
    technicalities:
Quebec v. Alliance
, at para. 26. It was intended to
    ensure that the claim was based on an enumerated or analogous ground. In
    referring to the creation of a distinction, the first part of the analysis merely
    asks whether the legislation created a differential impact on the basis of a
    protected ground.

[83]

Where a law establishes a new benefit, but does so
    in a discriminatory manner, that law will create a distinction. But 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. As Abella J. explained in
Quebec v. Alliance
,
    at paras. 33-36, 42, provisions enacted to alleviate a discriminatory impact are
    not unchangeable, and can be modified, but any modifications must be constitutionally
    compliant in their effect, and must not cause a discriminatory impact.

[84]

At para. 33, Abella J. described the analytical
    framework for determining the constitutionality of amendments to a remedial
    scheme, with reference to the amended pay equity regime at issue in that case:

I do not
    share the unions view that once Quebec adopted ss. 40 to 43, it was
    constitutionally required to keep them on the books, so that any modification
    in the type or extent of protection afforded by those provisions would amount
    to a constitutional violation. To accept that submission in these circumstances
    would constitutionalize the policy choice embodied in the first version of the
Act
,
    improperly shifting the focus of the analysis to the
form
of the law,
    rather than its effects.
Instead, there is a discriminatory impact because,
    assessed on their own and regardless of the prior legislative scheme, the
    impugned provisions perpetuate the pre-existing disadvantage of women.
[Italics
    in original; underlining added.]

[85]

Similarly here, as I discuss further in my
    reasons below, the effect of the impugned provisions that restrict the
    availability of the remedial conditional sentence option is to perpetuate the
    already existing disadvantage suffered by Aboriginal offenders of being
    sentenced to jail more consistently than other offenders. I note that this
    important explanation by Abella J. also answers the criticism raised by Miller
    J.A. in his dissenting reasons, at paras. 188-89 and 242-43.

[86]

The third reason I would reject the analogy to
Nur
is that
Nur
did not involve discrimination against an Aboriginal
    offender. As Ms. Sharma states in her factum, the Supreme Court and Parliament
    (through s. 718.2(e)) have recognized that Aboriginal offenders face a unique
    legacy of dislocation caused by government policies of cultural genocide
    through colonial expansion and residential schools. In
Ipeelee
, at
    para. 60, the Supreme Court affirmed:

To be clear, courts must take judicial notice
    of such matters as the history of colonialism, displacement, and residential
    schools and how that history continues to translate into lower educational
    attainment, lower incomes, higher unemployment, higher rates of substance abuse
    and suicide, and of course higher levels of incarceration for Aboriginal
    peoples.

(b)

Reinforcing, Perpetuating, or Exacerbating Disadvantage

[87]

The second part of the
Taypotat
analysis
    asks whether the impugned law has the effect of reinforcing, perpetuating, or
    exacerbating the disadvantage of the claimant. In this case, the question is
    whether the law has that effect on Ms. Sharma because she is Indigenous.

[88]

Leading up to her commission of the offence at
    age 20, Ms. Sharma, an Indigenous woman, had a tragic personal history, which I
    have already described earlier in these reasons. While the sentencing judge did
    not state directly that he would have given Ms. Sharma a conditional sentence
    had he not been precluded from doing so by the
Safe Streets and Communities
    Act
, he acknowledged that offenders in Ms. Sharmas position, for
    approximately a 16-year period, would have been eligible for, and did in
    appropriate cases, receive a conditional sentence disposition: at para. 242. Based
    on Ms. Sharmas personal background and current circumstances, including her
    guilty plea, lack of prior convictions, and need to care for her very young
    child, Ms. Sharma was a prime candidate for a conditional sentence.

[89]

But the
Safe Streets and Communities Act
denied her the availability of this community-based sanction. In doing so, for
    the reasons that follow, ss. 742.1(c) and 742.1(e)(ii) have the effect of reinforcing,
    perpetuating, or exacerbating the disadvantage that Ms. Sharma faces as an
    Indigenous person.

(i)

Evidence of Historic Disadvantage

[90]

The sentencing judge had the benefit of an
    extensive evidentiary record detailing the relationship between the historic
    disadvantage endured by Aboriginal people in Canada and their
    overrepresentation in the criminal justice system.

[91]

Dr. Carmela Murdocca, an associate professor of
    sociology at York University, provided expert evidence at the sentencing
    hearing regarding the relationship between colonialism, racism, and the
    criminalization of Indigenous women. The sentencing judge stated, at para. 20:

The
    expert witness evidence discussed the linkage of colonialism and racism to
    criminalization in particular of indigenous women. In the context of systemic
    cultural genocide of our countrys First Nations peoples, the colonialism
    process has had a direct impact on disproportionate involvement of these
    persons with the criminal justice system. The witness described the legacies of
    colonialism including systemic racism, educational challenges, lack of
    employment opportunities, loss of and disruption to cultural transmission
    processes, as well as social and economic and property disenfranchisement, and
    other resultant factors leading to disproportionate contact with the criminal
    justice system. The legacies of colonialism and overt racism have resulted in
    intergenerational trauma for families and communities.

[92]

Dr. Murdocca described how one of the legacies
    of colonialism and racism in Indigenous womens lives is victimization and how
    that leads to criminal acts. The sentencing judge quoted part of her evidence,
    at para. 23:

Aspects of Indigenous womens social, economic
    and cultural experiences often inform their participation in serious offences.
    Research reveals that episodic or sustained victimization is a significant
    contextual factor in the commission of offences. There is much evidence to
    support the position that womens criminality is disproportionately a result of
    systemic disempowerment and violence.

In short, victimization cannot be named as
the
cause of crime, however, experiences of victimization can assist in
    contextualizing why some Indigenous women experience constrained and limited
    life choices in light of racialized and gendered discrimination which strains
    access to social structures, resources and alternative options of economic
    support. [Emphasis in original.]

[93]

Dr. Murdocca also explained that victimization
    and the legacies of colonialism and racism are connected to Indigenous womens
    participation in drug crimes. She described drug crimes as survival crimes
    that, in most cases involving women, are executed under conditions of duress.

[94]

With respect to the impact of the
Safe Streets
    and Communities Act
provisions dealing with conditional sentences, Dr.
    Murdocca highlighted research showing that a significant number of Aboriginal
    women who had received conditional sentences in the past would have been
    precluded from receiving the same sentences if the new provisions had applied
    at the time of their sentencing:

Limiting, removing or restricting the
    conditional sentence option removes one tool previously available to courts to
    mitigate the over-incarceration of Indigenous people. I quote [Ryan] Newells
    article [Making Matters Worse: The Safe Streets and the Ongoing Crisis of
    Indigenous Over-Incarceration (2013) 51:1 Osgoode Hall L.J. 199] at length
    here to demonstrate some of the potential implications of restricting the use of
    conditional sentences for Indigenous women.

Research by Elspeth Kaiser-Derrick offers a
    stark illustration of the impact the [
Safe Streets and Communities Act
]
    will have on the availability of conditional sentences to Indigenous offenders.
    Kaiser-Derrick reviewed ninety-one cases of Indigenous women offenders to
    assess the ways that courts account for the
Gladue
factors. Of the
    ninety-one cases that Kaiser-Derrick analyzed between 1999 and 2011, thirty-one
    resulted in conditional sentences. She came to the following startling
    conclusion about how these thirty-one cases would be decided in the wake of the
    [
Safe Streets and Communities Act
]:

[]Following the 2012 s. 742.1 amendments,
    29 of those 31 conditional sentence orders would no longer be possible. That
    bears repeating: either immediately on the law, or because on the facts the
    Crown proceeded by indictment for a hybrid offence now excluded by s. 742.1, 29
    of the 31 Aboriginal women that received conditional sentence orders in my
    research would no longer be eligible for conditional sentences for the same
    offences/facts today. For one further case, I was unable to determine whether
    that offender would remain eligible for a conditional sentence, because the
    answer hinged on whether the Crown proceeded by indictment or summarily, which
    is unclear in the judgment. I only found one decision of the 31 that actually
    resulted in a conditional sentence order that would continue to be eligible for
    a conditional sentence order after the 2012 amendments. To be clear, that means
    that those 29 (possibly 30, depending on the answer for the judgment I could
    not conclusively settle) criminalized Aboriginal women would likely have been
    sent to prison instead under the current 2012 law (although perhaps in limited
    cases a strict probationary term may have been ordered). This regressive turn
    in sentencing law is deeply troubling, and threatens to further exacerbate the
    ongoing problem of overrepresentation.[] [Footnotes omitted.]

[95]

Other statistical evidence referred to by the
    interveners, Womens Legal Education and Action Fund Inc. and the David Asper
    Centre for Constitutional Rights, in their factum on the appeal, puts the issue
    of overrepresentation of Indigenous women in jail quite starkly. According to
    data from the Office of the Correctional Investigator, the interveners
    highlight that between March 2009 and March 2018, the number of Indigenous
    women sentenced federally increased by 60 percent, such that by the end of that
    period, 40 percent of all federally incarcerated women were Indigenous: Canada,
    Office of the Correctional Investigator,
Annual Report 2017-2018
(Ottawa:
    O.C.I., 2018), at p. 61. Directly relevant to the potential effect of
    conditional sentences, which are only available where the appropriate prison sentence
    is less than two years and would be served in a provincial institution, Indigenous
    persons represented 4 percent of the adult population of Canada in 2017-18 but accounted
    for 30 percent of admissions to provincial or territorial jails compared to 21
    percent in 2007-08: Statistics Canada,
Adult and youth correctional
    statistics in Canada
, 2017/2018
, by Jamil Malakieh, Catalogue No.
    85-002-X (Ottawa: Statistics Canada, 2019), at p. 5. And over the same period,
    the increase in male Indigenous admissions to provincial or territorial
    institutions was 28 percent while the female increase was 66 percent:
Adult
    and youth correctional statistics
, at p. 5.

[96]

These interveners also provided significant
    additional information about the effect of incarceration on Indigenous women,
    particularly single mothers and their communities, quoting from the reports of
    numerous commissions of inquiry, the most recent being the final report of the
    National Inquiry into Missing and Murdered Indigenous Women and Girls. One
    example is the impact on the children. When bail is denied or a custodial
    sentence is imposed on Indigenous women, their children may be placed in foster
    care, where Indigenous children are already overrepresented, accounting for 48%
    of children in foster care in Canada: Canada,
Reclaiming Power and Place:
    Final Report of the National Inquiry into Missing and Murdered Indigenous Women
    and Girls
,

vol. 1a (Ottawa: N.I.M.M.I.W.G., 2019), at p. 637.
    Documented effects of foster care on Indigenous children in non-Indigenous
    homes are loss of culture, language and identity, as well as the increased risk
    of involvement in the youth criminal justice system, a process known as the
    child-welfare-to-prison pipeline: Ontario Human Rights Commission,
Interrupted
    childhoods: Over-representation of Indigenous and Black children in Ontario
    child welfare
(Toronto: O.H.R.C., 2018), at pp. 27-28. The interveners
    conclude, fairly, that [t]he overincarceration of Indigenous women thus
    perpetuates the effects of intergenerational trauma and the disruption of
    Indigenous families and communities.

[97]

The opinion and statistical evidence reinforces
    the findings of numerous commissions on the plight of Indigenous peoples in
    Canada as well as numerous judicial pronouncements by the Supreme Court on the
    link between colonialism and racism and discrimination against Indigenous
    people, and their circumstances of poverty, lack of education, and
    overrepresentation within the criminal justice system, as well as
    discrimination in the prison system and in sentencing: see, as a recent example,
Ewert v. Canada
, 2018 SCC 30, [2018] 2 S.C.R. 165, at para. 57.

(ii)

The Evidentiary Onus

[98]

Before addressing the merits of the s. 15 claim,
    I wish to address the evidentiary onus on Ms. Sharma in challenging the
    impugned provisions.

[99]

One of the reasons the sentencing judge rejected
    the s. 15 claim was that he observed, at para. 257, that the court had no
    statistical information, and found that the record before him did not identify
    the real measure and likely or established impact of any adverse effect in
    order to determine whether it would qualify as a distinction based on Aboriginal
    status. He also stated that restricting the availability of conditional
    sentences for crimes with a maximum sentence of 14 years or life and for certain
    drug offences would have a minimal impact on Aboriginal offenders, and that only
    in a very few cases would Aboriginal offenders be incarcerated where a
    conditional sentence would also have been appropriate: at para. 256.

[100]

In my view, the sentencing judges reliance on
    Ms. Sharmas failure to lead statistical evidence to prove discriminatory
    impact constitutes an error of law as well as a misapprehension of the available
    evidence on this critical issue.

[101]

First, with respect to the error of law, the
    Supreme Court instructed in
Taypotat
that while the onus remains on
    the claimant to establish disproportionate and discriminatory effect, the
    specific evidence required will vary depending on the context of the claim, but
    evidence that goes to establishing a claimants historical position of
    disadvantage will be relevant:
Taypotat
, at para. 21, citing
Withler
,
    at para. 38. This principle follows the direction in
Law v. Canada
    (Minister of Employment and Immigration)
, [1999] 1 S.C.R. 497, that if
    direct evidence is not available, courts may rely on logical inferences and
    judicial notice: at para. 77. In this case, it was not necessary to lead
    statistical evidence to establish that removing the conditional sentence option
    would disproportionately impact Aboriginal offenders. It was therefore an error
    of law to require that evidence.

[102]

In respect of the available evidence, first
    there was the direct evidence of Dr. Murdocca on the link between systemic
    discrimination and overrepresentation of Aboriginal people in the criminal
    justice system in general, and female Aboriginal offenders in particular,
    because of their specific challenges. Dr. Murdocca also provided direct evidence
    of the same link to the participation by Aboriginal women in the crime of
    importing drugs. Second, the sentencing judge was entitled to take judicial
    notice of the phenomenon of overincarceration of Aboriginal offenders and the
    fact that systemic discrimination is recognized as a direct cause of that
    phenomenon in Canada. These matters are beyond any serious controversy, as
    reflected in the jurisprudence of the Supreme Court.

[103]

Third, even if statistics had been available
    regarding how many Aboriginal offenders would have received conditional
    sentences had the impugned provisions not been enacted, they would not have
    presented a useful picture. A worthwhile set of statistics would have
    identified the population of Aboriginal offenders who were incarcerated when
    they otherwise would have been eligible for a conditional sentence. That
    population of offender would have had to receive a sentence of less than two
    years, an eligibility criterion for conditional sentencing:
Criminal Code
,
    s. 742.1. However, Ms. Sharma was convicted of an offence that attracted a
    mandatory minimum of two years imprisonment:
CDSA
, s. 6(3)(a.1).

[104]

As a consequence, before the trial judge struck down the mandatory minimum
    sentence in s. 6(3)(a.1) of the
CDSA
, there would have been no other
    similarly situated offenders who were incarcerated for fewer than two years,
    subject to the limited exception in s. 8 of the
CDSA
. Statistics would
    accordingly have been unable to capture the impact of the impugned provisions
    on Aboriginal offenders, as it would be difficult to identify the population
    that was specifically deprived of a conditional sentencing option.

[105]

The point is that, even in the absence of
    statistics, the effect of the impugned provisions is to exacerbate the
    disadvantage experienced by an Aboriginal offender whose background and
    circumstances, when considered under the
Gladue
framework, weighed in
    favour of a conditional sentence had one been available. As the impugned
    provisions remove an important tool that would have allowed the sentencing
    judge to give effect to the mandate of s. 718.2(e), this is one of the cases
    foreseen in
Taypotat
in which direct statistical evidence was not
    required to prove Ms. Sharmas claim.

(iii)

Applying Part Two of the
Taypotat
Analysis

[106]

The Crowns position, which was accepted by the
    sentencing judge, is that the removal of the conditional sentence for the
    affected offences does not have the effect of exacerbating the condition of
    overincarceration of Indigenous offenders and therefore does not implicate
    substantive equality considerations, because sentencing judges retain the
    discretion to order other sentencing options such as a suspended sentence and
    probation. The Crown argues that judges are not prevented from giving effect to
    the remedial objective of s. 718.2(e) and their role as directed by
Gladue
and
Ipeelee
. To quote from the Crowns factum: Judges are still
    perfectly able to take on that role. They simply have one less tool at their
    disposal in specified circumstances.

[107]

Before this court, the Crown argued that even
    without the availability of conditional sentences, sentencing judges can give
    effect to the
Gladue

framework by fixing a prison sentence of
    an appropriate length. In my view, this submission reflects a misunderstanding
    of the remedial purpose of s. 15. It is not disputed that the imposition of a
    prison sentence can reflect the proper balancing of the sentencing objectives
    of denunciation, deterrence, and rehabilitation. The

Gladue
framework does not undermine that fundamental premise. Rather, it asks
    sentencing judges to consider imposing a community-based sanction that also
    balances the sentencing objectives but carries with it the added benefit of
    redressing the problem of overrepresentation of Aboriginal offenders in
    Canadas prisons. It is the denial of this benefit that is at issue in this
    appeal, not the respective fitness of custodial and conditional sentences.

The Sentencing Landscape in the Wake of the
Safe Streets and Communities
    Act

[108]

First, I observe that the Crowns suggestion
    that courts replace conditional sentences with suspended sentences appears to
    fly in the face of Parliaments stated purpose in enacting the
Safe Streets
    and Communities Act
, which was to ensure that offenders go to jail for the
    affected offences because they represent serious crimes, as I discuss in my
    analysis under s. 7.

[109]

In any event, I disagree with the Crowns characterization
    of the sentencing landscape in the wake of the
Safe Streets and Communities
    Act
amendments, and with its premise that the continued availability of suspended
    sentences lessens any adverse impact of the impugned legislation. The Crowns
    position fails to acknowledge that suspended sentences and probation differ in
    important respects from conditional sentences, and that those sanctions are
    rarely available for the affected offences.

[110]

In
Proulx
, the Supreme Court explained
    that a conditional sentence, unlike a suspended sentence, is a jail sentence
    but served in the community. It serves the functions of deterrence and
    denunciation:
Proulx
, at paras. 41, 67. Indeed, conditional sentences
    may be available even in cases where deterrence and denunciation are the
    paramount sentencing objectives:
R. v. Wells
, 2000 SCC 10, [2000] 1
    S.C.R. 207, at para. 35. A suspended sentence, on the other hand, is intended
    to promote rehabilitation and is normally imposed where deterrence and
    denunciation are not needed for the particular offender in the particular
    circumstances, or where there are exceptional circumstances:
Proulx
,
    at paras. 32-36; see
Criminal Code
, ss. 731(1), 732.1, and 732.2.

[111]

In support of its position, the Crown placed significant
    weight on its contention that in the ordinary course, sentencing judges would
    be unlikely to impose conditional sentences for serious offences like those
    captured by ss. 742.1(c) and 742.1(e)(ii). Of course, a conditional sentence
    was never available where the appropriate sentence in all the circumstances of
    the case was two years imprisonment or more. It is only in cases where the
    appropriate sentence is less than two years that a conditional sentence is
    available. Therefore, it is only in cases where the offence is one included in
    the ambit of the two impugned sections, but the circumstances of the commission
    of the offence do not call for a penitentiary-length sentence that the impugned
    provisions have removed the option of a conditional sentence. The issue whether
    all the included offences are serious is discussed below in the context of s.
    7.

[112]

However, to the extent that the included
    offences are considered to be serious offences, in
Ipeelee
, the
    Supreme Court made clear that
Gladue

principles must be applied
    in every case, irrespective of the seriousness of the offence. Failure to do so
    would deprive s. 718.2(e) of much of its remedial power, given its focus on
    reducing overreliance on incarceration:
Ipeelee
, at para. 86. The
    duty of the sentencing judge is to consider the unique circumstances of Aboriginal
    offenders in every case, including serious ones, to ensure a fit and
    proportionate sentence.

The Limited Availability of Suspended
    Sentences

[113]

Furthermore, even if conditional and suspended
    sentences were equivalent sanctions, the case law demonstrates that suspended
    sentences are far more difficult to obtain than conditional sentences for Aboriginal
    and other marginalized offenders.

[114]

The intervener the Criminal Lawyers Association
    points out that where a conditional sentence is unavailable, courts are
    resorting to a prison sentence, even when it is not required. It cites as
    examples
R. v. Castelein
, 2018 MBQB 37;
R. v. Diabikulu
, 2016
    BCPC 390; and
R. v. Clunis
, 2018 ONCJ 194. In those cases, jail
    sentences were imposed on a single mother with no prior criminal record who took
    significant steps toward rehabilitation after her arrest for drug offences, on a
    23-year-old black man with no adult record, and on a young marginalized first offender,
    all because a conditional sentence in the community was not an available
    sentence.

[115]

Moreover, the CLA explains that sentencing
    judges rarely and inconsistently find exceptional circumstances warranting
    suspended sentences and that such sentences are disproportionately unavailable
    for marginalized offenders, because the effects of discrimination are viewed as
    common rather than rare, exceptional circumstances are very difficult to
    demonstrate from custody, and exceptional circumstances ignore racism and
    stereotyping.

[116]

On this issue, the CLA identified and assessed
    59 cases where an offender asked for a suspended sentence based on exceptional
    circumstances, in order to determine what types of circumstances have
    qualified. These included significant rehabilitation, overcoming addiction,
    youthfulness, lack of criminal record, gainful employment, remorse, character
    reference letters, education, familial and community support, compliance with
    bail conditions, and guilty pleas. However, according to the CLA, these factors
    are applied in an unpredictable manner, making the availability of a suspended
    sentence unreliable as an alternative to incarceration.

[117]

More importantly, the types of factors required
    for a suspended sentence effectively exclude many, if not most, marginalized
    offenders, including Aboriginal offenders and especially Aboriginal women.

[118]

First, courts have viewed circumstances arising
    from systemic discrimination as commonplace and therefore not exceptional,
    thereby treating the most sympathetic circumstances as ineffective in the
    calculus of qualification for a suspended sentence: see, e.g.,
R. v. McIvor
,
    2019 MBCA 34, at para. 64;
Clunis
, at paras. 23, 26.

[119]

Second, because Indigenous people are
    disproportionately denied bail and are less likely to be rehabilitated in
    custody, as the court in
Gladue
acknowledged at paras. 65 and 68, they
    are less likely to meet the exceptional circumstances criteria. For example, in
    the 59 cases that were identified by the intervener where a suspended sentence
    was requested, the offender received such a sentence in 27 cases, and in each
    one, the offender was on bail and consequently able to overcome addiction,
    attend rehabilitative programs, obtain employment, or engage in other
    productive activities.

[120]

Third, the requirements for employment and lack
    of a criminal record again effectively exclude marginalized people whose
    circumstances of unemployment and criminal activity are affected by racism and
    systemic discrimination. Simply put, the determination of the appropriateness
    of a suspended sentence differs in important respects from the conditional
    sentencing calculus and often works to the disadvantage of Aboriginal
    offenders.

[121]

In concluding his analysis for dismissing the s.
    15 application, the sentencing judge nevertheless found suspended sentences to
    be an acceptable alternative to conditional sentences, stating, at para. 262:

In the
    aftermath of the [
Safe Streets and Communities Act
s] restriction on the
    availability of conditional sentences, various courts have accepted that a
    suspended sentence and probation, as opposed to incarceration, is an
    appropriate alternative in the absence of the conditional imprisonment option
    see, for example, [
R. v. Neary
, 2017 SKCA 29, 37 C.R. (7th) 95, leave to
    appeal refused, [2017] S.C.C.A. No. 254;
R. v. Dickey
, 2016 BCCA 177, 335
    C.C.C. (3d) 478;
R. v. Voong
, 2015 BCCA 285, 325 C.C.C. (3d) 267; and
R.
    v. Elliott
, 2017 BCCA 214, 349 C.C.C. (3d) 1].

[122]

In some of these cases, the judges were indeed able
    to find exceptional circumstances in order to impose a suspended sentence. However,
    I would respectfully disagree with the sentencing judge that those courts found
    a suspended sentence to be an alternative to a conditional sentence. In
Voong
,
    the Court of Appeal for British Columbia expressly acknowledged that it is a
    legal error to simply substitute a suspended sentence for a conditional
    sentence, as the two types of sentence are governed by different principles: at
    para. 62.

Conclusion on
    the Limited Availability of Suspended Sentences

[123]

In my view, the position of the Crown, the
    analysis of the sentencing judge, and the result in this case provide the
    clearest indication of why a suspended sentence cannot be viewed as an
    available alternative to a conditional sentence.

[124]

The sentencing judge specifically declined to
    impose a suspended sentence for Ms. Sharma, given the gravity of the offence of
    importing cocaine. He stated, at paras. 264-65:

The
    gravity of the offence of importing cocaine requires a sentencing court to
    impose a disposition proportionate to the seriousness of the crime. A
    sentencers consideration of factors personal to an offender, including her degree
    of responsibility, moral blameworthiness and particular mitigating
    circumstances cannot be allowed to diminish recognition of the gravity of the
    offence to the point of unwarranted imbalance where principles of denunciation
    and deterrence are reduced to hollow talking points only.

A suspended sentence
    and probation, an intermittent sentence of imprisonment, or a sentence of less
    incarceration than a global sentence of 18 months would not amount to a fit
    sentence.

[125]

As part of the justification for the 18-month
    sentence, the sentencing judge referred to Ms. Sharmas intergenerational
    survival of the residential school regime, together with the following eight specific
    factors that would militate in favour of a sentence more focused on
    rehabilitation, at para. 266:

(1)

Ms. Sharma is a first offender

(2)

she was aged 20 when the offence was committed

(3)

a guilty plea was entered

(4)

as the single mother of a 2-year-old child, the offenders
    motivation to commit the offence arose in desperate financial circumstances
    where she was unemployed and facing imminent eviction from her home

(5)

the offender confessed to the RCMP on the date of her arrest

(6)

the offender has been on judicial interim release for over 2 ½ years
    and has relocated to Christian Island

(7)

incarceration of the offender will separate her from her daughter
    while family can care for the child, the offenders incarceration perpetuates a
    generational pattern of separation from family

(8)

the offender is a low risk to reoffend and has made rehabilitative
    efforts since arrest.

[126]

But these factors, which included many that have
    been found to constitute exceptional circumstances in other cases, were not
    sufficient for the sentencing judge to impose a suspended sentence instead of a
    jail term. Critically, consideration of Ms. Sharmas circumstances as an Aboriginal
    offender and the
Gladue
principles did not overcome the prominence of
    the sentencing principles of denunciation and deterrence because of the
    sentencing judges view of the seriousness of the offence in this case.

[127]

The Crown argues that in this case, because
    prison was the appropriate sentence for Ms. Sharma after applying the
Gladue
and
Ipeelee
frameworks, the fact that a conditional sentence was not
    available did not worsen the crisis of overrepresentation. This submission
    ignores the fact that after considering the
Gladue
factors, the
    sentencing judge found, as submitted to him by the Crown, that a suspended
    sentence was not available, and therefore he had to impose a custodial
    sentence. Contrary to the Crowns submission, this case demonstrates that for a
    female Aboriginal offender whose background and circumstances, when considered
    under the
Gladue
framework, would have pointed toward a conditional
    sentence had it been available, the effect of the impugned provisions is to
    exacerbate her disadvantage as an Aboriginal person by removing the one remedy
    that would have allowed the sentencing judge to give effect to the mandate of
    s. 718.2(e).

The Crowns Overarching Position

[128]

The Crowns overarching opposition to the s. 15
    application is its floodgates position that Ms. Sharmas argument amounts to
    saying that, because of Indigenous overrepresentation in the criminal justice
    system,
any
Parliamentary enactment of general application that makes
    the criminal law more stringent
necessarily
violates s. 15 (emphasis
    in original), and, as a consequence, Parliament can never make the criminal law
    more stringent, only more lenient. For example, a
Criminal Code
amendment increasing a maximum sentence for a given offence would risk running
    afoul of s. 15 if this court accepted Ms. Sharmas arguments.

[129]

I would strongly reject this contention. It is
    based on a misunderstanding of Ms. Sharmas position and of the s. 15 analysis.
    As the Supreme Court explained in
Gladue
, the purpose of s. 718.2(e)
    is to address the issue of Aboriginal overincarceration by providing a
    sentencing directive of restraint, a mandate to consider in every case the
    circumstances of an Aboriginal offender because they arise in part from the
    history of systemic discrimination, and an available remedy in s. 742.1 of a
    conditional sentence to be served in the community, where appropriate in all
    the circumstances. By reducing overincarceration, these provisions are intended
    to also affect the larger issue of Aboriginal overrepresentation in the
    criminal justice system. But the provisions are focused directly on sentencing.

[130]

The relationship between ss. 718.2(e) and 742.1
    in sentencing is well established. 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.
Criminal Code
amendments that make the criminal law more stringent or that increase a maximum
    sentence for an offence would not have the same effect. Sections 742.1(c) and 742.1(e)(ii)
    undermine the purpose of the
Gladue
framework, exacerbating and
    perpetuating the discriminatory disadvantage of Aboriginal offenders in the
    sentencing process.

[131]

Accordingly, for all of these reasons, I cannot
    accept the Crowns contention that the impugned provisions of the
Safe
    Streets and Communities Act

do not impair the ability of sentencing
    judges to consider alternatives to imprisonment when sentencing Aboriginal
    offenders. To the contrary, the Act deals a significant blow to the remedial
    policy that Parliament enacted in s. 718.2(e) of the
Criminal Code
.
    When amending remedial policies, Parliament must not do so in a discriminatory
    fashion:
Alliance
, at paras. 36-37.

[132]

The intent of the Act is to incarcerate
    offenders convicted of certain offences. The reality is that the Act will
    result in more Indigenous offenders serving their sentences in jail rather than
    in their communities. Thus, I conclude that ss. 742.1(c) and 742.1(e)(ii) deny
    the benefit of a conditional sentence in a manner that has the effect of reinforcing,
    perpetuating or exacerbating the disadvantage of Aboriginal offenders, and is
    therefore contrary to s. 15 of the
Charter
.

G.

Section 7

[133]

Ms. Sharma also asks this court to find the
    impugned provisions to be contrary to s. 7 of the
Charter
and not
    saved by s. 1. Ms. Sharma argues that ss. 742.1(c) and 742.1(e)(ii) violate her
    s. 7 liberty rights because they are arbitrary and overbroad relative to the
    legislative purpose. I agree.

(1)

Argument Raised for the First Time on Appeal

[134]

As discussed above, although Ms. Sharmas
    constitutional challenge before the sentencing judge involved both ss. 7 and
    15, following the presentation of evidence, counsel for Aboriginal Legal
    Services, who had carriage of the
Charter
arguments for Ms. Sharma,
    advised the sentencing judge that s. 7 was not being pursued. Before this court,
    Ms. Sharma again raised the issue of s. 7 in her notice of appeal, and the
    material filed on the appeal by all parties, including by the interveners, addresses
    s. 7.

[135]

Because the Crowns initial position was that
    this Court should not hear the s. 7 challenge for the first time on appeal, the
    court heard argument on that issue at the opening of the appeal, retired to
    consider the issue, and announced its decision to entertain the s. 7 argument, with
    reasons to follow.

[136]

In
Guindon v. Canada
, 2015 SCC 41, [2015]
    3 S.C.R. 3, at paras. 20 and 22, the Supreme Court gave guidance to appellate
    courts on how to deal with this issue. An appellate court has discretion to
    hear a new issue on appeal, including a constitutional issue, but the test for
    doing so is a stringent one, and the courts discretion should not be exercised
    routinely or lightly: at para. 22. The court set out, at para. 20, the factors
    that will influence a courts discretion to hear a new constitutional issue on
    appeal:

Whether to hear and decide a constitutional
    issue when it has not been properly raised in the courts below is a matter for
    the Courts discretion, taking into account all of the circumstances, including
    the state of the record, fairness to all parties, the importance of having the
    issue resolved by this Court, its suitability for decision and the broader
    interests of the administration of justice.

[137]

We were satisfied that these considerations weighed
    in favour of hearing the s. 7 challenge in this appeal. Importantly, during
    oral argument, the Crown conceded that it would suffer no prejudice from an
    adjudication of the s. 7 issue. The parties built the evidentiary record at
    trial on the basis that the s. 7 issue would proceed. Similarly, on this
    appeal, the parties all submitted materials to this court to be used if the s. 7
    challenge went forward. They addressed s. 7 in their written material and
    prepared to make oral submissions. We had the benefit of knowledgeable interveners
    representing affected stakeholders to assist with all aspects of the issue. The
    court also prepared to hear the issue, which was ripe for decision on a rich
    evidentiary record, together with the s. 15 challenge. We concluded, therefore,
    that it was in the interest of the administration of justice for the court to proceed
    to hear and decide the issue.

(2)

The Legal Principles

[138]

Section 7 of the
Charter
guarantees
    that:

Everyone has the right to life, liberty and
    security of the person and the right not to be deprived thereof except in
    accordance with the principles of fundamental justice.

[139]

Both parties agree that Ms. Sharma has suffered
    a deprivation of liberty because she was sentenced to jail. The issue is
    whether that deprivation of liberty was in accordance with the principles of
    fundamental justice. Ms. Sharma submits that the deprivation was not in
    accordance with the principles against arbitrariness and overbreadth.

[140]

These two principles were explained by the
    Supreme Court in
Canada (Attorney General) v. Bedford
, 2013 SCC 72,
    [2013] 3 S.C.R. 1101, at paras. 111 and 112, as follows:

Arbitrariness asks whether
    there is a direct connection between the purpose of the law and the impugned
    effect on the individual, in the sense that the effect on the individual bears
    some relation to the laws purpose. There must be a rational connection between
    the object of the measure that causes the s. 7 deprivation, and the limits it
    imposes on life, liberty, or security of the person ([Hamish Stewart,
Fundamental
    Justice: Section 7 of the Canadian Charter of Rights and Freedoms
, 1st ed.

(Toronto: Irwin Law, 2012)], at p. 136). A law that imposes limits on these
    interests in a way that bears
no connection
to its objective arbitrarily
    impinges on those interests. Thus, in [
Chaoulli v. Quebec (Attorney General)
,
    2005 SCC 35, [2005] 1 S.C.R. 791], the law was arbitrary because the
    prohibition of private health insurance was held to be unrelated to the
    objective of protecting the public health system.

Overbreadth deals with a
    law that is so broad in scope that it includes
some
conduct that bears
    no relation to its purpose. In this sense, the law is arbitrary
in part
.
    At its core, overbreadth addresses the situation where there is no rational
    connection between the purposes of the law and
some
, but not all, of its
    impacts. For instance, the law at issue in [
R. v. Demers
, 2004 SCC 46,
    [2004] 2 S.C.R. 489] required unfit accused to attend repeated review board
    hearings. The law was only disconnected from its purpose insofar as it applied
    to permanently unfit accused; for temporarily unfit accused, the effects were
    related to the purpose.
[Emphasis in original.]

[141]

I note at the outset that the Supreme Court has
    held that challenges to sentencing legislation from the perspective of
    proportionality ought generally to rely on the gross disproportionality
    standard that developed in the jurisprudence under s. 12, the
Charter
s
    guarantee against cruel and unusual punishment:
R. v. Lloyd
, 2016 SCC
    13, [2016] 1 S.C.R. 130, at paras. 40-42. Nevertheless, sentencing legislation
    remains vulnerable to a s. 7 challenge on the basis of overbreadth or
    arbitrariness, as the court accepted in a decision released on the same day as
Lloyd:
    R. v. Safarzadeh-Markhali
, 2016 SCC 14, [2016] 1 S.C.R. 180. As Ms.
    Sharmas appeal raises issues of overbreadth and arbitrariness, it is fit for
    adjudication under s. 7.

(3)

The Purpose of the Impugned Legislation

[142]

In order to assess whether a law is either
    arbitrary or overbroad, the first step is to determine the purpose of the law,
    because both tests involve an analysis of the relationship between the laws
    effects and its legislative objective. In

Safarzadeh-Markhali
,
    at para. 31, the court set out the three sources for determining an impugned
    laws purpose for the overbreadth analysis: statements of purpose in the
    legislation; the text, context, and scheme of the legislation; and extrinsic
    evidence such as legislative history and evolution.

[143]

A number of courts have already opined on the
    purpose of the
Safe Streets and Communities Act
. In
Neary
, at
    para. 35, the Court of Appeal for Saskatchewan identified four broad purposes
    of the Act:

a)

providing consistency and clarity to the sentencing regime;

b)

promoting of public safety and security;

c)

establishing paramountcy of the secondary principles of denunciation
    and deterrence in sentencing for the identified offences;

d)

treating of non-violent serious offences as serious offences for
    sentencing purposes.

[144]

The parties have accepted this statement of the purposes of the Act in
    this appeal. However, it is up to this court to determine the purpose of the
    specific impugned provisions, using the three tools identified by the Supreme
    Court.

[145]

Turning to those tools, in March 2012, the
Safe Streets and
    Communities Act
received royal assent as an omnibus bill which amended several
    acts, including the
CDSA
; the
Criminal Code
; the
State
    Immunity Act
,

R.S.C. 1985, c. S-18;

the
Corrections and
    Conditional Release Act
, S.C. 1992, c. 20;

the
Youth Criminal
    Justice Act
, S.C. 2002, c. 1; and the
Immigration and Refugee
    Protection Act
, S.C. 2001, c. 27. These amendments included the
    conditional sentence amendments relevant to this appeal, at s. 34. With respect
    to the conditional sentence amendments, the
Safe Streets and Communities
    Act

summarizes the changes in its preamble as follows:

Part 2 amends the
Criminal Code

to

(e) eliminate the reference, in
    section 742.1, to serious personal injury offences and to restrict the
    availability of conditional sentences for all offences for which the maximum
    term of imprisonment is 14 years or life and for specified offences, prosecuted
    by way of indictment, for which the maximum term of imprisonment is 10 years.

[146]

The Minister of Justice and his Parliamentary Secretary at the time
    explained to Parliament the purpose of the changes to s. 742.1 of the
Criminal
    Code

in a number of speeches before the House of Commons. On September
    21, 2011, at second reading, Mr. Robert Goguen, the Parliamentary Secretary, stated
    that in drafting the
Safe Streets and Communities Act
, This
    government is addressing the concerns of Canadians who no longer want to see
    conditional sentences used for serious crimes, whether they are violent crimes
    or property crimes:
House of Commons Debates
, 41-1, vol. 146, No. 17
    (21 September 2011), at 1755. On October 6, 2011, the Minister stated:

[A]s you can see by the bill before you, the
    bill is very specific that with the most serious offences within the
Criminal
    Code
,
you will not be eligible to go home afterward.
There are and
    will continue to be serious consequences.

Again, I think this helps peoples confidence
    in the criminal justice system. We all have a stake in seeing that people have
    confidence in our justice system, and also in our political system. [Emphasis
    added.] (House of Commons, Standing Committee on Justice and Human Rights,
Evidence
,
    41-1, No. 4 (6 October 2011), at 0910)

[147]

Subsequently, on March 6, 2012, during
    consideration of Senate amendments to the bill, the Minister expressed the
    purpose of the legislation in the House of Commons in the following terms:

As Minister of Justice and Attorney General of
    Canada, it is my responsibility to maintain the integrity of the justice
    system. We need legislation that is responsive to what is happening on our
    streets and meets the expectations of Canadians in the 21st century. The
    proliferation of drugs and violent crime is, unfortunately, a reality in this
    day and age and it is our job as parliamentarians to deal with criminals, to
    protect society and do whatever we can to deter crime
.

The bill deals also
    with conditional sentences, usually referred to as house arrest. Our
    legislation would ensure that serious crimes such as sexual assault, kidnapping
    and human trafficking would not result in house arrest. Conditional sentences
    would continue to be unavailable for any offence with a mandatory minimum
    penalty. In addition, a conditional sentence would never be available for
    offences with a maximum of 14 years or life imprisonment; or for offences with
    a maximum penalty of 10 years that result in bodily harm or involve the import,
    export, trafficking or production of drugs or involve the use of a weapon; nor
    for a range of other offences including kidnapping, theft over $5,000 or motor
    vehicle theft.
Our act would ensure that serious
    offences, including serious property offences like arson, would also not result
    in house arrest.
This would ensure that jail sentences for such offences are
    served in jail
.
[Emphasis added.]
(
House of Commons Debates
, 41-1, vol.
    146, No. 90 (6 March 2012), at 1025, 1035)

[148]

The specific provisions in ss. 742.1(c) and 742.1(e)(ii) remove two
    groups of offences from the offences for which a conditional sentence may be
    imposed. From the context of the amendments and statements by the Minister
    about the intent and purpose of the legislation, I discern that the purpose of
    the two impugned provisions is to maintain the integrity of the justice system
    by ensuring that offenders who commit serious offences receive prison sentences.
    The means by which the legislation implements Parliaments purpose is by
    removing the availability of a conditional sentence for offences where the
    maximum penalty is 14 years or life or 10 years in the case of offences
    involving the import, export, trafficking or production of drugs.

[149]

Maintaining the distinction between the objective of the law and the
    means chosen to achieve it is significant in the s. 7 analysis:
R. v.
    Moriarity
, 2015 SCC 55, [2015] 3 S.C.R. 485, at para. 27. While the means
    chosen can shed light on the purpose of the law, a narrow articulation of the
    purpose amounting to a virtual repetition of the challenged provision risks
    eroding the distinction between ends and means and may effectively foreclose any
    separate inquiry into the connection between them:
Moriarity
, at
    para. 28; see also
Safarzadeh-Markhali
, at para. 27.

(4)

Arbitrariness

[150]

Ms. Sharma argues that the impugned provisions are arbitrary because
    they create a gap in the sentencing range available for the covered offences by
    removing the middle of the range, thereby forcing judges to impose a sentence
    that is either too high or too low. She refers to the conditional sentence as
    the missing middle, which she equates with the sentencing gap in
Nur
,
    and relies on a comment by Moldaver J. in his dissenting reasons in that case. I
    would reject this argument.

[151]

In
Nur
, the firearms offence in s. 95 of the
Criminal
    Code
carried a mandatory minimum sentence of three years if prosecuted by
    indictment as a first offence, but a maximum sentence of one year if prosecuted
    summarily. The result was a sentencing gap of two years for the same offence,
    depending on the prosecutorial route chosen. While the majority struck down the
    provision under s. 12 of the
Charter
and thus found it unnecessary to
    consider whether it also violated s. 7, Moldaver J., in his dissenting reasons,
    would have upheld the provision under both ss. 7 and 12 of the
Charter
.
    He declined to find the two-year sentencing gap arbitrary for the purposes of
    s. 7 because he was satisfied that prosecutorial discretion would be used
    appropriately to cure any potential arbitrary effect. However, he did not
    gainsay the possibility that, in other circumstances, this type of gap might
    raise s. 7 concerns: at para. 191.

[152]

In my view, even if the purported missing middle in this case
    could be equated to the sentencing gap that existed in s. 95 of the
Criminal
    Code
, this submission fails the test for arbitrariness. Parliaments
    objective was to maintain the integrity of the justice system by ensuring that
    offenders who commit serious offences receive jail sentences: where a
    conditional sentence would have been available and imposed in the
    circumstances, sentencing judges will now substitute a prison sentence. To the
    extent that Parliament would view a conditional sentence as the middle of the
    sentencing range, its purpose was to remove that middle option with the intent
    that judges will impose a more stringent, denunciatory, and deterrent sentence.
    The effect of removing the conditional sentence option is not arbitrary because
    it coincides with Parliaments purpose.

(5)

Overbreadth

[153]

Ms. Sharma also submits that the impugned provisions
    violate s. 7 of the
Charter

because they are overbroad. Although
    the purpose of the amendments was to ensure that serious offences would always
    attract a custodial sentence, the provisions identify seriousness by focusing
    on the maximum sentence for an offence (14 years or life imprisonment, or 10
    years for drug offences involving importing, exporting, trafficking or
    production) and consequently capture a broad spectrum of offences and
    underlying criminal conduct that can range from the low to the high end of
    seriousness or gravity. In other words, Ms. Sharma submits that the maximum
    sentence for an offence is not an appropriate proxy for its seriousness.

[154]

Ms. Sharma argues that the purpose of providing a
    significant maximum sentence for many offences in the
Criminal Code
is
    to have that sentence available for egregious cases and circumstances that
    could arise. It does not indicate that the underlying prohibited conduct is
    always or even most often going to call for such a sentence. As a result, using
    a high maximum sentence as a proxy for the seriousness of the offence and the
    crime is not reasonable and results in overbreadth.

[155]

Ms. Sharma suggests that there are a number of effective
    and reasonable methods that could have been used to identify serious offences. For
    instance, a constitutionally valid mandatory minimum is one indicator of the
    seriousness of an offence: even where the circumstances are particularly
    sympathetic, the offence is so serious that the minimum sentence is not
    inappropriate. Another method that Parliament has used is to classify an
    offence, such as theft, assault and sexual assault, by tiers of severity,
    thereby subjecting conduct at the serious end of the spectrum to its own
    sentencing regime. A third method is for Parliament to designate certain
    aggravating features, such as terrorism, as always serious.

[156]

However, by using the maximum sentence to designate
    serious offences that require a custodial sentence, Ms. Sharma submits that the
    legislation includes a number of offences which, while by no means trivial,
    often attract a low sentence. Counsel for Ms. Sharma researched sentences
    imposed for five offences for which a conditional sentence is no longer
    available because they are punishable by a maximum term of 14 years
    imprisonment  forging a passport and possession of counterfeit money contrary
    to the
Criminal Code
, and price-fixing, false advertising, and
    deceptive telemarketing contrary to the
Competition Act
, R.S.C. 1985,
    c. C-34  and found that the longest sentence imposed for any of them was two
    years (for deceptive telemarketing). The breadth of the sentencing range
    available for the included offences and the sentences actually imposed for such
    offences show that they are not always the type of serious offence that the
    impugned provisions were intended to affect.

[157]

The Crowns position is that Parliaments
    purpose was to remove the conditional sentence option for serious offences and
    that the impugned provisions are therefore rationally connected to the
    amendments purpose. As discussed in the previous section, however, that
    position conflates the purpose of the legislation, to maintain the integrity of
    the justice system by ensuring that offenders who commit serious offences
    receive jail sentences, with the means used to accomplish it, which is the
    removal of the conditional sentence option for offences punishable by high
    maximum penalties.

[158]

Nevertheless, on the issue of defining which
    offences are serious, the Crown argues that Parliament was entitled to use the
    maximum sentence to determine the seriousness of the offence in a generic
    sense, referring to
R. v. Hamilton
(2004), 72 O.R. (3d) 1 (C.A.), at
    para. 90, regardless of the underlying conduct of any particular offender. I
    would reject this submission.

[159]

Since the inception of conditional sentences,
    this mode of punishment has been subject to two internal limits: the offence
    must not have attracted a mandatory minimum sentence, and the sentencing judge
    must have determined that a fit sentence for the offender would be less than
    two years in prison. On the surface, the
Safe Streets and Communities Act
amendments purport to restrict the availability of conditional sentences for
    certain classes of offences. However, the practical impact of the legislation
    is to alter the sentencing landscape most directly for those offenders
    convicted of an offence with a high maximum penalty who nevertheless deserved penalties
    at the low end of the sentencing range, by denying those offenders the
    availability of a conditional sentence. For more serious offenders who would
    ordinarily have received a prison sentence exceeding two years, the
Safe
    Streets and Communities Act
has no effect on the sentencing landscape, as
    those offenders could not have received conditional sentences to begin with.

[160]

In this respect, the impact of ss. 742.1(c) and
    742.1(e)(ii) is similar in scope to the impact of the impugned legislation in
Safarzadeh-Markhali
.
    That case concerned s. 719(3.1) of the
Criminal Code
, which denied
    enhanced sentencing credit for days spent in pre-trial detention to an offender
    who was refused bail because of previous convictions, and that was endorsed on
    the offenders record pursuant to s. 515(9.1). Writing for a unanimous court, McLachlin
    C.J. found that the legislative purpose of s. 719(3.1) was to to enhance
public safety and security by increasing violent and
    chronic offenders access to rehabilitation programs
 (emphasis omitted): at para. 47. At para. 53, she held
    that the law was overbroad because it applied to offenders in circumstances
    that did not further the legislative purpose:

First, the provisions
    ambit captures people it was not intended to capture: offenders who do not pose
    a threat to public safety or security. Section 515(9.1) is broadly worded. It
    catches any person denied bail primarily for a criminal record, without
    specifying or even broadly identifying the nature or number of offences that
    would warrant a s. 515(9.1) endorsement. The section may therefore ensnare
    persons whose imprisonment does not advance the purpose of the law. For
    example, a person with two or three convictions for failing to appear in court
    might be subject to a s. 515(9.1) endorsement, even though he or she did not
    pose any real threat to public safety or security. And even if such a person
    receives greater access to rehabilitative programming and benefits from it, the
    consequence is not necessarily to improve public safety and security. In short,
    a s. 515(9.1) endorsement is an inexact proxy for the danger that an offender
    poses to public safety and security. The Crown says the law casts the net
    broadly because targeting all offenders with a criminal record is a more practical
    option than attempting to identify only offenders who pose a risk to public
    safety and security. But practicality is no answer to a charge of overbreadth
    under s. 7:
Bedford
, at para. 113.

[161]

Sections 742.1(c) and 742.1(e)(ii) are even less
    precisely tailored to their purpose than the legislation at issue in
Safarzadeh-Markhali
.
    As discussed, in a practical sense, the only offenders who face an altered
    sentencing regime by virtue of the
Safe Streets and Communities Act
amendments are those whose circumstances would ordinarily militate in favour of
    a sentence at the lower end of the spectrum. While there will be cases where eliminating
    the availability of a sentence served in the community and mandating a sentence
    of imprisonment could meet Parliaments purpose of incarcerating those who
    commit serious crimes, there will be many other cases where, as in
Safarzadeh-Markhali
,
    the impugned provisions will impact people they were not intended to capture.

[162]

The Crown responds that Parliaments intent was
    to impose jail sentences on offenders convicted of the designated offences,
    whether or not the circumstances of the crime made their conduct serious
    criminal conduct. In other words, the consequence applies to serious offences
    in the abstract, regardless of whether the offence, as committed in any
    particular case, involves serious criminality.

[163]

I would reject this submission. It is belied by the
    review of the sources for determining Parliaments intent, as discussed above,
    which was to ensure that offenders convicted of serious crimes serve their
    sentences in prison. The intent of the amendments was to promote the integrity
    of the administration of justice and the publics confidence in it by ensuring
    that serious crimes are punished with a sufficiently strong sentence, which
    Parliament deems to be a sentence of incarceration.

[164]

Parliaments chosen proxy for assessing the
    seriousness of an offence is its maximum sentence. There are, however, a number
    of problems with that analogy.

[165]

The Crowns submission that this courts
    reasoning in
Hamilton
provides a foundation for the use of maximum
    penalties as a proxy for an offences seriousness is inconsistent with this
    courts reasoning in that case and misconceives the sentencing process. In
Hamilton
,
    the issue was the determination of a fit sentence for the offence of importing
    cocaine. In setting out the analytical framework, Doherty J.A. considered the
    proportionality requirement under s. 718.1 of the
Criminal Code
, which
    provides that [a] sentence must be proportionate to the gravity of the offence
    and the degree of responsibility of the offender. He stated, at para. 90, that
    the gravity of the offence is a product of both the potential penalty imposed
    and the specific features of the commission of the crime:

The gravity of the offence refers to the
    seriousness of the offence in a generic sense as reflected by the potential
    penalty imposed by Parliament and
any specific features of the commission of
    the crime
which may tend to increase or decrease the harm or risk of harm
    to the community occasioned by the offence. For example, in drug importation
    cases, the nature and quantity of the drug involved will impact on the gravity
    of the offence. Some of the factors which increase the gravity of the offence
    are set out in s. 718.2(a). [Emphasis added.]

[166]

He continued, at para. 91, by explaining that the degree of
    responsibility of the offender addresses the offenders role in carrying out
    the crime, as well as a
ny specific
    aspects of the offender's conduct or background that tend to increase or
    decrease the offenders personal responsibility for the crime.

[167]

When read in context, Doherty J.A.s acknowledgement that the
    maximum penalty for an offence can reflect its seriousness in a generic sense
    was tempered significantly by his concurrent observation that the actual
    circumstances in which a specific offender committed a specific offence will
    play a critical role in the determination of seriousness. This description is
    consistent with the sentencing framework in the
Criminal Code

and
    Ms. Sharmas submission that the seriousness of a crime is not determined solely
    by the maximum penalty, viewed in isolation. Sentencing is not an abstract inquiry
    and cannot be divorced from the circumstances of the commission of the crime,
    which will reduce or increase the level of seriousness of the offence in any
    particular case. Furthermore, I observe that the jurisprudence reflects that while
    maximum penalties are not reserved for some abstract conception of the worst
    possible offender, they are nevertheless rarely imposed:
R. v. Cheddesingh
,
    2004 SCC 16, [2004] 1 S.C.R. 433, at para. 1;
R. v. L.M.
, 2008 SCC 31,
    [2008] 2 S.C.R. 163, at para. 20.

[168]

Ms. Sharma sought to distinguish the case of
Canada (Minister of
    Employment and Immigration) v. Chiarelli
, [1992] 1 S.C.R. 711, in which the
    Supreme Court found that a provision of the
Immigration Act
, 1976
, S.C. 1976‑77, c. 52,
did not violate the principles of fundamental justice by using
    conviction of an offence with a maximum penalty of five years or more as a
    proxy for serious criminality, so as to prevent a permanent resident from
    remaining in Canada. I agree that that decision is distinguishable. First, the parties
    in
Chiarelli
did not frame their submissions with reference to the principles
    of fundamental justice that have since crystallized in the jurisprudence and
    that are raised in this appeal. The court therefore did not address the issue
    in terms of comparing the purpose of the law with the scope of its impugned
    effects. Second, that case turned on the proposition that Parliament was
    entitled to adopt an immigration policy to regulate non-citizens rights to
    enter and remain in Canada, and that it was not unfair to deport a person for a
    crime punishable by five years in prison when that was a known condition for
    remaining in Canada: at pp. 733-34.

[169]

I note, further, that the relevant immigration legislation, in its
    modern form, includes as grounds of inadmissibility not only the maximum
    penalty for an offence, but also the length of the prison term actually imposed
    on the permanent resident or foreign national: see
Immigration and Refugee
    Protection Act
, s. 36(1)(a). The latter measure is intended as a proxy for
    serious criminality: see
Tran v. Canada (Public Safety and Emergency
    Preparedness)
, 2017 SCC 50, [2017] 2 S.C.R. 289, at para. 25.

[170]

Finally, the Crown also submits that the legislation is not overly
    broad in respect of the offence in issue in this appeal to which Ms. Sharma pleaded
    guilty, importing cocaine, or the offence of aggravated sexual assault, which
    was specifically addressed by the interveners HIV & AIDS Legal Clinic
    Ontario and Canadian HIV/AIDS Legal Network. In respect of importing cocaine,
    the Crown argues that the need for denunciation and deterrence justifies the
    removal of the conditional sentence option. In the case of aggravated sexual
    assault, which the interveners argue can be committed by non-disclosure of HIV
    even where the accused takes precautions to prevent transmission and
    transmission does not occur, the Crown submits that the lesser sentences of a
    suspended sentence, an intermittent sentence, and a fine are still available
    for less blameworthy cases.

[171]

With respect, in making that argument, the Crown mischaracterizes the
    conditional sentence as a form of punishment that carries no deterrent or
    denunciatory effect. Even in cases where deterrence and denunciation are the
    paramount sentencing objectives, a conditional sentence may be appropriate,
    depending on the nature of the conditions imposed, the duration of the
    conditional sentence, and the circumstances of the offender and the community
    in which the conditional sentence is to be served:
Proulx
, at para.
    114; see also
Wells
, at para. 35. These principles apply equally to
    the offences of drug importation and aggravated sexual assault.

[172]

Moreover, even if accepted, these submissions do not assist the
    Crown where the impugned provisions are overbroad in respect of any of the
    included offences. In
Bedford
, the court stated that the s. 7 analysis
    regarding arbitrariness, overbreadth, and gross disproportionality is qualitative,
    not quantitative, and that a grossly disproportionate, overbroad, or arbitrary
    effect on one person is sufficient to establish a breach of s. 7: at para.
    123.

[173]

In
Lloyd
, where the Supreme Court struck down the one-year mandatory
    minimum sentence for a controlled substances offence because it applied in
    situations where the sentence amounted to cruel and unusual punishment under s.
    12 of the
Charter
, the court suggested two paths to insulate such provisions
    from
Charter
non-compliance: at paras. 35-36. Similar paths could
    apply, with appropriate modification, to the impugned provisions of the
Safe
    Streets and Communities Act
. One is to narrow the reach of the law. The
    other is to provide a residual judicial discretion for exceptional cases. There
    no doubt are other methods as well. None were applied to the provisions at
    issue in this appeal.

[174]

I conclude that the impugned provisions are contrary to s. 7 of the
Charter
because they resulted in the deprivation of Ms. Sharmas liberty in a manner
    that was not in accordance with the principle of fundamental justice of
    overbreadth. There is no rational connection between the impugned provisions
    purpose and some of their effects.

H.

Section 1

[175]

As I have determined that ss. 742.1(c) and 742.1(e) infringe ss. 7
    and 15 of the
Charter
, the onus falls on the Crown to justify those
    infringements under s. 1 of the
Charter
.

[176]

Dealing first with the s. 7 breach, in its written submissions, the
    Crown recognizes that infringements of s. 7 are difficult, but not impossible
    to justify under s. 1, based on
Bedford
, at paras. 125-29, and
    advances no substantive arguments to justify the alleged s. 7 infringement. As
    a result, I conclude that the s. 7 infringement is not saved under s. 1.

[177]

Turning next to the s. 15 breach, the Crown argues that the
    provisions meet the four elements of the test set out in
R. v. Oakes
,
    [1986] 1 S.C.R. 103, as subsequently restated in
Canada (Attorney General)
    v. Hislop
, 2007 SCC 10, [2007] 1 S.C.R. 429. Although the onus is on the
    Crown to prove each of these elements, the Crown filed no evidence to
    substantiate a s. 1 argument.

[178]

Even if the Crown could establish that the provisions have a
    pressing and substantial objective, in my view, the s. 1 justification fails at
    the minimal impairment stage of the analysis. The Crown argues that the
    provisions are minimally impairing of Ms. Sharmas rights because they only
    remove one sentencing option of many. As discussed above, they remove the only
    sentencing alternative to imprisonment that could have been available for this
    crime and for this offender. As in the game of musical chairs, when the chairs
    are removed, there is no place left to sit down.

[179]

There is also no basis to find that the deleterious effects of the
    impugned provisions on Aboriginal people are outweighed by the salutary effect
    of the provisions. The deleterious effects are serious. These provisions as
    enacted take no account of the special circumstances of Aboriginal offenders
    and the need to address their disadvantage based on race that has resulted in the
    overincarceration of Aboriginal people. The breach of s. 15 is not saved by s.
    1.

I.

Remedy

[180]

I would strike down ss. 742.1(c) and 742.1(e)(ii) of the
Criminal
    Code
. The Crown did not ask the court to declare the provisions
    inapplicable only to Aboriginal offenders if it found a breach. In my view, it
    is for Parliament to determine to what extent, if any, it may re-enact these
    provisions, bearing in mind the position of other offender groups potentially
    affected.

[181]

In oral argument, the Crown requested a suspended declaration of
    invalidity. The Crown has not met the high standard of showing that a
    declaration with immediate effect would pose a danger to the public or imperil
    the rule of law:
R. v. Boudreault
, 2018 SCC 58, [2018] 3 S.C.R. 599,
    at para. 98. Accordingly, I would apply the declaration of invalidity with
    immediate effect.

[182]

As for Ms. Sharma, she asks this court to set aside her sentence and
    substitute a conditional sentence of imprisonment of 24 months less a day,
    although she has served her sentence of 17 months in prison. The Crown submits
    that the sentence imposed was a fit sentence and is entitled to deference.

[183]

Having found the provisions that precluded the imposition of a
    conditional sentence to be in breach of ss. 7 and 15, this court may consider
    whether a conditional sentence is the appropriate sentence for Ms. Sharma. No
    deference is owed to the decision to impose a sentence of imprisonment, as the
    sentencing judge erred in concluding that a conditional sentence was not
    available.

[184]

Taking into account Ms. Sharmas personal circumstances as a single
    mother, her guilty plea, her lack of criminal record, together with the
Gladue
factors which address her personal history, including her grandmothers
    attendance at residential school, her survival of sexual violence, her
    experience in foster care, her lack of education and poverty, as well as her
    determination to re-educate herself and work to make a good home for her
    daughter and to maintain her cultural identity, a conditional sentence served
    in the community would have been an appropriate sentence to achieve the
    sentencing objectives of s. 718.2(e).

[185]

As a conditional sentence is served in the community, it is often appropriate
    that it be a somewhat longer sentence to achieve the objectives of deterrence
    and denunciation as well as rehabilitation. I would therefore set aside the
    sentence of 17 months in prison and substitute a conditional sentence of 24
    months less a day, as suggested by the appellant. However, as Ms. Sharma has completed
    her sentence of incarceration, further time spent subject to a conditional
    sentence is not in the interests of justice in light of the time spent in
    prison.

J.

Disposition

[186]

For all of these reasons, I would allow the
    appeal and declare that ss. 742.1(c) and 742.1(e)(ii) of the
Criminal Code
unjustifiably infringe ss. 7 and 15 of the
Charter
and are, therefore,
    of no force or effect.

[187]

I would set aside Ms. Sharmas sentence of 17
    months imprisonment, declare that a conditional sentence of 24 months less a
    day should have been imposed, but as she has served her custodial sentence, no
    further time is to be served.

K. Feldman
    J.A.

I agree.
E.E. Gillese J.A.

B.W. Miller J.A. (Dissenting):

[188]

If Parliament enacts legislation expected to
    benefit an historically disadvantaged group  legislation it had no obligation
    to enact  can a later Parliament amend or repeal it, having concluded the
    legislation was misconceived? The immediate answer is yes, according to the
    bedrock constitutional principle that a Parliament cannot bind its successor:
Reference
    re Bowaters Pulp & Paper Mills Ltd.
, [1950] S.C.R. 608, at p. 640,
per
Rand J. (concurring), and at p. 657,
per

Estey J. (concurring).
    Ordinary legislation is never immune from amendment or repeal. An
    interpretation of s. 15(1) of the
Charter
that results in
    constitutionalizing ordinary legislation  permanently locking in any
    legislation perceived as remedial of disadvantage  is unsound.

[189]

The effect of my colleagues reasons runs to the
    contrary: that contemporary s. 15(1)
Charter
doctrine operates to lock
    in place a statute intended to benefit an historically disadvantaged group. If
    s. 15(1) operates as my colleague sets out  immunizing ordinary legislation
    from amendment or repeal, subject only to s. 1  something has gone seriously
    wrong with s. 15(1) doctrine. What that problem is, and how to fix it, is at
    the heart of this appeal. In short, the problem is a new and reductive
    conception of discrimination articulated in
Kahkewistahaw First Nation v.
    Taypotat
, 2015 SCC 30, [2015] 2 S.C.R. 548, breaking from the long history
    of s. 15(1) doctrine since its emergence in
Andrews v. Law Society of
    British Columbia
, [1989] 1 S.C.R. 143. On this new conception, the
    imposition or maintenance of a burden of any kind is stipulated as sufficient
    basis for establishing an infringement of s. 15(1), without regard to the
    essential question of whether that burden has resulted from any sort of wrong
    whether intentional or not  on the part of the legislature. This question,
    which requires that the claim of discrimination be assessed within the
    decision-making context, must remain if s. 15(1) analysis is to be a
    substantive inquiry into wrongful discrimination.

A.

Introduction

[190]

Parliament was under no obligation to establish
    a conditional sentencing regime. It did so in the expectation that such a
    regime would allow for criminal punishments that would be more conducive to
    reform of the offender, benefitting both the offender and the community. This
    reform was undertaken simultaneously with another: a statutory direction to
    sentencing judges to prioritize alternatives to incarcerating all offenders,
    and particularly Aboriginal offenders.

[191]

Parliament vested judges with the discretion to
    determine which offenders could benefit from conditional sentences, and what
    the terms of such sentences should be. However, this grant of discretion, like
    all grants of discretion, is bounded. The legislation provides that for some
    offences and some offenders, a conditional sentence will not be an available
    option.

[192]

The legislation at issue in this appeal removed
    some of the discretion previously exercised by sentencing judges. Parliament
    determined that for some offences, justice will require incarceration, a more
    complete deprivation of the offenders range of freedom, regardless of what a
    sentencing judge may otherwise have concluded. This legislation is an exercise
    of one of Parliaments most important functions  setting the boundaries of the
    adequate and necessary penalties for crimes.

[193]

This court is asked to examine the
    constitutionality of that legislative decision through the lenses of s. 15(1)
    and s. 7 of the
Charter
. The doctrines elaborating these
    constitutional provisions are complex bodies of law. In order to be guided by
    these doctrines, it is inadequate to simply take a snapshot of doctrine as it
    has been formulated in the most recent judgments of the Supreme Court. As later
    judgments build on or modify propositions established in earlier cases,
    contemporary doctrine in this area of law cannot be properly understood without
    attention to the course of doctrinal development. Accordingly, I begin with a
    brief doctrinal history of s. 15(1), including its interaction with s. 1. I
    then apply that doctrine to the issues on this appeal, before turning finally
    to s. 7.

[194]

In the result, I disagree with my colleague on
    each rights claim, as I have concluded that the impugned legislation violates
    neither s. 15(1) nor s. 7. I would dismiss the appeal.

B.

Section 15  A brief Doctrinal History

[195]

Section 15 of the
Charter of Rights and
    Freedoms
provides:

(1) Every individual is equal before
    and under the law and has the right to the equal protection and equal benefit
    of the law without discrimination and, in particular, without discrimination
    based on race, national or ethnic origin, colour, religion, sex, age or mental
    or physical disability.

(2) Subsection (1) does not preclude
    any law, program or activity that has as its object the amelioration of
    conditions of disadvantaged individuals or groups including those that are
    disadvantaged because of race, national or ethnic origin, colour, religion,
    sex, age or mental or physical disability.

[196]

Since the Supreme Court first established a methodology
    for the interpretation of s. 15(1) in
Andrews
, the doctrine has
    undergone continual change. Doctrinal innovations have been adopted, then
    discarded. Appeals to architectonic concepts such as dignity and autonomy,
    first thought to provide greater clarity and direction, were abandoned as
    unhelpful and burdensome distractions.

[197]

None of this would have surprised the
Andrews
court. That court was especially clear-minded that the meaning of s. 15s key
    concepts  equality and discrimination  are contested. These concepts were
    left undefined in the text of s. 15(1), and as a political community we
    disagree not only about the meaning of these concepts, but about the criteria
    to be used in determining whether they have been respected. With respect to
    equality in particular, McIntyre J. remarked that it is an elusive concept
    [that], more than any of the other rights and freedoms guaranteed in the
Charter
,
    [] lacks precise definition: at p. 164. Ten years later, Iacobucci J. wrote
    that s. 15 is perhaps the
Charter
s most conceptually difficult
    provision:
Law v. Canada (Minister of Employment and Immigration)
,
    [1999] 1 S.C.R. 497, at para. 2.

[198]

The history of s. 15(1) doctrine suggests that
    we not be overconfident that its development has reached a terminus. To
    contribute to the development of s. 15(1) doctrine, understanding what is
    stable and what requires further refinement requires a preliminary discussion
    of the key concepts of equality and discrimination. It also requires attention
    to the subtle but significant changes in methodology that occurred between
Andrews

in 1989 and
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, and in
Centrale des syndicats du Québec v. Quebec
    (Attorney General)
, 2018 SCC 18, [2018] 1 S.C.R. 522. What follows, then,
    is a brief discussion of the purpose or foundational principle underlying s.
    15(1), before attending to the two principal concepts through which s. 15(1)
    doctrine has been articulated: substantive equality and discrimination. From
    there I will provide a brief overview of how these concepts have been worked
    into the s. 15(1) test, which is intended to guide the reasoning of judges and
    others who are guided by law.

(1)

Foundations of
    Equality

[199]

Section 15(1) begins with the declaration that
    [e]very individual is equal before and under the law, a principle that lies
    at the heart of constitutionalism and the rule of law. The whole of s. 15  and
    the whole of the
Charter
and the Canadian constitutional order  is
    premised on the radical equality of persons and the rejection of natural
    hierarchies. The animating purpose of s. 15, as articulated by LeBel J. in
Quebec
    (Attorney General) v. A
, 2013 SCC 5, [2013] 1 S.C.R. 61, is to safeguard
    the shared commitment to the principle that all human beings have equal worth:
    at paras. 136-38. Or as stated equivalently in
Law
, the purpose is to
    recognize all persons, notwithstanding their great disparities in abilities and
    needs, as human beings or as members of Canadian society, equally capable and
    equally deserving of concern, respect and consideration: at para. 51.

(a)

Substantive Equality

[200]

The Supreme Court of Canada has specified that
    s. 15(1) is premised on a particular conception of equality, which it has
    called substantive equality. Unfortunately, the court has never provided an
    account of this concept suited to the central role it is supposed to play in s.
    15(1) reasoning. Of late, the concept has no obvious analytical function, and has
    been deployed mainly as a rhetorical flourish, with substantive either
    serving as an intensifier, or meaning real as opposed to merely apparent:
    see e.g.
Taypotat
, at paras. 17, 19;
Quebec v. Alliance
, at
    paras. 25-27.

[201]

In earlier jurisprudence, the court expounded
    the concept by way of contrast with the ancient concept of formal equality
    as, for example, in
Withler v. Canada (Attorney General)
, 2011 SCC 12,
    [2011] 1 S.C.R. 396, at para. 39:

Substantive equality, unlike formal equality,
    rejects the mere presence or absence of difference as an answer to differential
    treatment. It insists on going behind the facade of similarities and
    differences. It asks not only what characteristics the differential treatment
    is predicated upon, but also whether those characteristics are relevant
    considerations under the circumstances.

[202]

However, as many legal scholars have attested,
[3]
this conception of substantive
    equality is not readily distinguishable from the concept of formal equality,
    associated with Aristotle, that the court intended to use as a contrast. The
    difference between the two is either merely terminological, or is rooted in a
    misunderstanding of formal equality. As explained below, the
Andrews
court erred in its supposition that formal equality precluded assessment of the
substance
of a legislative provision, and was concerned only with the
    question of whether legislation  whatever its justice or injustice  was
applied
impartially. Substantive equality was proposed by the Supreme Court as a
    corrective: to direct that the substance of legislation should also be subject
    to scrutiny. But this is a proposition that formal equality never denied. Once
    this erroneous understanding of formal equality is cleared away, substantive
    equality can simply be understood as formal equality at full stretch.

[203]

Formal equality is the proposition that things
    that are alike should be treated alike, while things that are unalike should be
    treated unalike in proportion to their unalikeness:
Andrews
, at p.
    166, quoting from Aristotles
Nicomachean Ethics
. As H.L.A. Hart noted
    in
The Concept of Law
, although [t]reat like cases alike and
    different cases differently is a central element in the idea of justice, it is
    by itself incomplete and, until supplemented, cannot afford any determinate
    guide to conduct: 3rd ed. (Oxford: Oxford University Press, 2012), at p.159.
    That is, and as also noted in the passage from
Withler
quoted above,
    until it is established what resemblance and differences are relevant, Treat
    like cases alike must remain an empty form. To fill it we must know when, for
    the purposes in hand, cases are to be regarded as alike and what differences
    are relevant: Hart, at p. 159.

[204]

Thus, as a critical tool for assessing the
    wrongness of discrimination, the principle of formal equality can only ever be
    a beginning. It is a form or framework for analysis. It invites but cannot
    answer the question: what is a relevant basis for discriminating among persons,
    for treating equals differently? The criterion for this additional inquiry can
    only be supplied by external, normative judgments about what persons and groups
    are owed.

[205]

These judgments have been supplied, in part, by
    the prohibited grounds enumerated in s. 15(1), and grounds that are analogous
    to these: race, national or ethnic origin, colour, religion, sex, age, and
    mental or physical disability. These prohibited grounds partially fill in the
    form. In the case of direct discrimination, they are grounds that can seldom be
    a relevant basis for treating persons differently. In the case of indirect
    discrimination, they can seldom be a relevant basis for accepting negative
    side-effects of government action to be imposed on others. More contextual
    information is of course needed to determine whether a distinction drawn (or permitted)
    on these grounds is reasonable. In the language of
Withler
, the
    question is whether the characteristics the different treatment is predicated
    upon [] are relevant considerations under the circumstances: at para. 39.
    This analysis of whether distinctions respect equality and are reasonable, or
    do not respect equality and are unreasonable, was set out in the
Andrews
test, largely carried out using the vocabulary of discrimination.

(b)

Discrimination

[206]

All legislation inevitably draws some
    distinctions and ignores others. When is it wrong to do so? This problem was
    identified by McIntyre J. in
Andrews
, at pp. 168-69:

It is not
    every distinction or differentiation in treatment at law which will transgress
    the equality guarantees
of

s
. 15 of the
Charter
.
    It is, of course, obvious that legislatures may  and to govern effectively
    must treat different individuals and groups in different ways. Indeed,
    such distinctions are one of the main preoccupations of legislatures. The
    classifying of individuals and groups, the making of different provisions
    respecting such groups, the application of different rules, regulations,
    requirements and qualifications to different persons is necessary for the
    governance of modern society. As noted above, for the accommodation of
    differences, which is the essence of true equality, it will frequently be
    necessary to make distinctions. What kinds of distinctions will be acceptable
    under s. 15(1) and what kinds will violate its provisions?

[207]

Section 15(1) doctrine is intended to provide a
    framework for identifying wrongful discrimination. That doctrine, as it was
    formulated in
Andrews
, presupposes a distinction between direct and
    indirect discrimination. This appeal turns on a question of indirect
    discrimination. As explained below, assessing legislation for indirect
    discrimination brings added complexity.

[208]

To treat like cases alike and different cases
    differently requires keen differentiation between like and unalike, and between
    different sorts of differences. It requires an account of what sorts of
    differences can be relevant in particular contexts. Distinctions drawn in
    legislation ought never to be based on grounds that are irrelevant to the
    benefit the legislation seeks to achieve, and the benefit to be achieved must
    never be premised on a denial of the equality of persons.

[209]

Andrews
recognized both limbs of discrimination: (i) direct discrimination, which looks
    entirely at the decision-makers intentions or grounds for making decisions;
    and (ii) indirect discrimination, which considers the unintended side-effects
    of the ends and means that were chosen.

[210]

Legislation is directly discriminatory (in the
    pejorative sense) wherever a forbidden distinction is made either in the
    proposal adopted in the legislation or in the reasoning that led to the
    adoption of the proposal: John Finnis, Equality and Differences (2011) Am. J.
    Juris. 17, at p. 28. The prohibition on direct discrimination is intended to
    banish certain considerations from the minds of decision-makers in most
    contexts. Although all legislation operates by drawing distinctions, not all
    distinctions, even those drawn on enumerated or analogous grounds, are
    impermissible. Although there is no hierarchy of the prohibited grounds, direct
    discrimination on some grounds, such as race, is more likely to be
    constitutionally suspect than distinctions drawn on other grounds such as age:
    consider the many paternalistic legislative provisions singling out children
    for different treatment.

[211]

As should be expected in a basically decent
    society, wrongful direct discrimination is rare:
Quebec v. A
, at para.
    420,
per

McLachlin C.J. (concurring). Much more common  and
    more difficult to assess  is indirect discrimination. Indirect discrimination
    focuses on the unintended impact of legislation rather than its intended ends
    and the means chosen to obtain them. As explained by Professor Sophia Moreau,
    in The Moral Seriousness of Indirect Discrimination in H. Collins & T.
    Khaitan, eds.,
Foundations of Indirect Discrimination Law

(Portland:
    Hart Publishing, 2018) 123, at p. 125:

[P]olicies that are indirectly discriminatory
    are often adopted in the service of perfectly innocent or even commendable
    goals, but end up having unfortunate side effects on groups that share a
    protected characteristic. A practice or a rule is treated as indirect
    discrimination under the law if it disadvantages those who share a particular
    protected characteristic, but disadvantages them only in an indirect way[.]

[212]

Professor Moreau highlights that legislation
    with commendable aims  not premised on a prejudicial or stereotypical view of
    anyone  can nevertheless be wrongful. It is often appropriate to hold
    decision-makers to account not only for what they intend, but for what they allow
    to happen: see Sophia Moreau, What is Discrimination? (2010) 38:2 Philosophy
    & Public Affairs 143, at pp. 158-60. The prohibition of indirect
    discrimination is intended to require legislatures to give careful attention to
    the distinctions drawn (or not drawn) in legislation and to attend to the
    potential diffuse impacts of proposed legislation.

[213]

The wrong that is committed by legislative
    decision-makers in indirect discrimination is in unfairly accepting the
    side-effects of a legislative course of action that may be otherwise
    constitutionally sound. This decision-making can be culpable even if the
    disadvantageous effect was neither desired nor foreseen. There need not be any
    discriminatory intention, or contempt, or animus toward the affected group. It can
    simply be a matter of overlooking their interests, or failing to give their
    interests the significance rightly due to the interests of equals.

[214]

Determining culpability for indirect
    discrimination is more complex than for direct discrimination, which focuses
    primarily on the presence or absence of an intention to discriminate. Properly
    understood, indirect discrimination is no less serious, categorically, than
    direct discrimination. Its wrongfulness, however, turns on a contextual
    analysis of what is required to treat persons as equals in particular
    decision-making contexts where governments have an obligation to legislate for
    the common good.

[215]

Indirect discrimination is not established
    automatically by the finding that legislation has negatively (or even disproportionately)
    affected the interests or well-being of persons belonging to a protected
    category. This standard of culpability would make indirect discrimination akin
    to absolute liability. Indirect discrimination is better understood as a
    failure either to notice the impact of its actions on others, or to accord that
    impact sufficient weight in its deliberations. The analysis requires attention
    to the public good to be achieved through the legislation, and whether it can
    fairly be said that the legislature  in accepting the unintended side-effects
    of the legislation on the claimant group  thereby failed to treat them as
    persons, equally capable and equally deserving of concern, respect and
    consideration:
Law
,

at para. 51. It bears repeating that where
    the complaint of indirect discrimination is based on the legislature failing to
    give appropriate weight to the interests of an historically disadvantaged
    group, the argument cannot be assessed without attending carefully to the full
    legislative context: the balance of burdens and benefits the legislation seeks
    to establish throughout the political community.

[216]

The requirement that all be recognized as
    equally
deserving
of concern does not mean that all are entitled to the
    same treatment, or to have their interests equally prioritized. The point is
    elaborated by McIntyre J. in several places in
Andrews
, such as at p.
    164: every difference in treatment between individuals under the law will not
    necessarily result in inequality. The obligation to recognize others as equals
    can co-exist with governmental choices that prioritize the immediate needs of
    some over others:
Finnis
, at p. 22, n. 15.

[217]

When differential treatment is permitted, when
    it is required, and when it constitutes wrongful discrimination are not
    straightforward questions, and depend enormously on context. The
Andrews
test, as elaborated in
Law
and subsequent cases, provides a framework
    intended to direct courts to the relevant contextual factors. That framework,
    as I explain later, has been left in shadow, if not expressly abandoned, in more
    recent decisions.

(2)

The
Andrews
Methodology

[218]

The winding history of the development of s.
    15(1) doctrine has been canvassed in many places, and perhaps best by LeBel J.
    in
Quebec v. A.
As LeBel J. recounted in his reasons, the analytical
    approach to establishing a
prima facie
case of discrimination first
    established in
Andrews
is now expressed in two steps:
Quebec v. A
,
    at paras. 177-84.

[219]

The first step has remained relatively stable:
    does the law create a
distinction
based on a ground enumerated in the
    text of s. 15(1), or a ground analogous to these?

[220]

The formulation of the second step has changed
    frequently, though sometimes subtly. It remains the subject of significant
    disagreement. This inquiry, stated at its highest degree of abstraction, is
    whether the distinction identified in the first step is
discriminatory
.
Law

provided the most ambitious and analytically sophisticated framework to
    identify what makes a distinction discriminatory. It recast the second inquiry,
    at para. 88, as:

Does the differential
    treatment discriminate, by imposing a burden upon or withholding a benefit from
    the claimant in a manner which reflects the stereotypical application of
    presumed group or personal characteristics, or which otherwise has the effect
    of perpetuating or promoting the view that the individual is less capable or
    worthy of recognition or value as a human being or as a member of Canadian
    society, equally deserving of concern, respect, and consideration?

[221]

The imposition of a burden or withholding of a
    benefit were not understood in
Law
to be sufficient to establish
    wrongful discrimination.
Law
directed courts to consider the
manner
in which a burden was imposed or a benefit withheld. To that end, it identified
    four contextual factors relevant to the identification of wrongful
    discrimination, at para. 88: (1) the existence of pre-existing disadvantage,
    stereotyping, prejudice, or vulnerability experienced by the individual
    claimant as a member of a discrete and insular minority; (2) correspondence
    between the distinction drawn by the law and the complainants actual needs,
    capacities, or circumstances; (3) whether the purpose of the impugned law was
    to ameliorate the condition of a more disadvantaged group; and (4) the nature
    and scope of the interest affected by the impugned law.
[4]
These factors are intended to
    help structure the inquiry into whether the imposition of a burden or the
    withholding of a benefit is discriminatory.

[222]

In
R. v. Kapp
, 2008 SCC 41, [2008] 2
    S.C.R. 483, the Supreme Court reaffirmed that discrimination, whether direct or
    indirect, does not turn on the decision-makers
attitudes
toward the
    claimant group, whether prejudicial or otherwise. It reaffirmed the importance
    of the impact on the group:
Kapp
, at para. 23. The impact may be the
    perpetuation of prejudice or false stereotyping, but it need not:
Quebec v.
    A
, at para. 325,
per

Abella J. (dissenting, but not on
    this point). Although prejudice and stereotyping remain markers of wrongful
    discrimination, they are not necessary elements of discrimination that the
    claimant must establish in all cases.

[223]

In
Taypotat
, s. 15(1) doctrine took a
    reductive turn. The previous emphasis on the perpetuation of stereotyping and
    prejudice was replaced with the broader category of disadvantage, at para. 20:
    whether the impugned law fails to respond to the actual capacities and needs
    of the members of the group and instead imposes burdens or denies a benefit in
    a manner that has the effect of reinforcing, perpetuating or exacerbating their
    disadvantage.

[224]

As I explain below, this broad conception of
    disadvantage  potentially any setback to a persons interests  is ill-suited
    to an assessment of indirect discrimination. It appears to rule out any
    consideration of the broader social context in which legislative decisions are
    made, including any regard for the responsibilities the legislature has to
    promote and preserve the public good. Without considering the impact on the
    public good, it becomes impossible to determine whether the legislature was
    wrong to have accepted the side-effects imposed on the group members in pursuit
    of that good. This goes to the heart of the s. 15(1) analysis  whether
    legislation is discriminatory  and is not something that can be pushed off to
    s. 1 analysis.

[225]

To postpone contextual considerations to s. 1
    (or to fail to address them at all) ruptures the great continuity in equality
    jurisprudence (
Law
, at para. 42) and embraces an approach expressly
    rejected in
Andrews
: at p. 181. The doctrinal innovations of
Taypotat
are irreconcilable with
Andrews
, which has never been overturned, and
    to which every s. 15(1) judgment to date has expressly remained committed.

C.

Section 15  Application to the Facts

[226]

As my colleague aptly summarizes it, the
Safe
    Streets and Communities Act
, S.C. 2012, c. 1, precludes sentencing judges
    from imposing a conditional sentence on an offender convicted of an offence
    prosecuted by indictment where the maximum term of imprisonment is 14 years or
    life, or an offence prosecuted by indictment involving the import, export,
    trafficking or production of drugs, where the maximum term of imprisonment is
    10 years: at para. 66.

[227]

This legislation is premised on a judgment by
    Parliament that conditional sentences had been imposed in circumstances where
    they were not fit and proper given the serious nature of the offences. In such
    circumstances, Parliament concluded, nothing short of incarceration could
    appropriately further the objectives of deterrence and denunciation. Parliament
    determined that custodial sentences were, as a rule, warranted for these
    offences, and thus that it would be a failure of justice to allow conditional
    sentences to be imposed for the commission of these offences. The means for
    carrying out this intention was to direct sentencing judges to no longer impose
    conditional sentences for these offences.

(1)

Does the law create
    a distinction on the basis of an enumerated or analogous ground?

[228]

No one suggests that the legislation
    discriminates directly. Race, in particular, plays no role in the proposal that
    Parliament intended to pursue through the legislation, nor in the legislative
    means chosen to pursue it. So the legislation does not draw a distinction in
    that sense. Instead, the claim is that the legislation has a differential
    impact on the interests of Aboriginal offenders, and because of this, it treats
    Aboriginal offenders differently.

[229]

The distinctions drawn in the legislation were
    made on the basis of particular offences and the maximum penalties that they
    can attract. There was expert evidence at trial that Aboriginal women, such as
    the appellant, who experience great economic insecurity and dependency are,
    because of the exigencies of their circumstances, particularly at risk of
    recruitment into drug trafficking: see para. 25. However, there is no
    suggestion that the offences are so closely related to race that they serve as
    proxies for race.

[230]

The appellants primary argument is that the
    restriction on the availability of conditional sentences, although facially
    neutral, treats Aboriginal offenders differently than others because the
    legislation impairs the operation of another legislative provision, s. 718.2(e)
    of the
Criminal Code
, that is intended to reduce overincarceration
    both generally and with specific reference to Aboriginal offenders.

[231]

In
Quebec v. Alliance
, the Supreme
    Court explained that the first step of s. 15(1) analysis is not intended to
    assess the merits of the claim, but simply to frame the analysis and weed out
    claims obviously not based on enumerated or analogous grounds: at para. 26. The
    difficult work is meant to be undertaken at the second step. On that basis, I
    can agree with my colleague that the claim meets the first step.

(2)

Is the distinction
    discriminatory?

[232]

My colleague concludes that, [b]y 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: at para. 130. The
    systemic discrimination in issue is said to be the overincarceration of
    Aboriginal persons.

[233]

At the second stage of the
Andrews

test,
    something more is needed than a determination that a person or group has
    suffered a setback to their interests as a result of a government action. There
    must be a determination that the legislative decision, considered in context,
    is
wrongful
. In the case of this claim of indirect discrimination, the
    legislative decision is that some set of offences ought to be punished by
    incarceration. The means to accomplish this end is to provide that offenders
    convicted of (in the appellants case) drug offences prosecuted by indictment
    would not be eligible for conditional sentences. A side-effect of this
    decision, given that some offenders would inevitably be Aboriginal, is that the
    number of incarcerated Aboriginal offenders would therefore be higher than it
    would otherwise be. I do not agree with my colleague that the relevant impact
    of the
Safe Streets and Communities Act
lies in having deprive[d] the
    court of an important means to redress systemic discrimination against
    Aboriginal people when considering an appropriate sanction: at para. 130. To
    formulate the matter in this way erroneously suggests that the courts rights
    have been infringed, and that the courts have some constitutional priority over
    Parliament (outside of the operation of s. 12) in setting the bounds of a fit
    and proper sentence. This would be contrary to recent Supreme Court
    jurisprudence on the respective roles of Parliament and the courts in
    establishing norms of punishment:
R. v. Lloyd
, 2016 SCC 13, [2016] 1
    S.C.R. 130, at para. 43.

[234]

How do we determine whether it was wrong for
    Parliament to have accepted this side-effect? I would reject the use of the
    bare criterion of perpetuating disadvantage. As I argue below, the adoption of this
    criterion as sufficient for the purposes of s. 15(1) analysis denatures,
    destabilizes, and trivializes equality rights jurisprudence. Second, I will
    argue that an analysis of the concept of overincarceration yields the
    conclusion that there has been no wrongful discrimination.

(a)

The Constitutional Ratchet

[235]

When the conditional sentencing regime was first
    established by the
Criminal Code
, it was not made available
    indiscriminately. Rather, Parliament decided to discriminate among types of
    offences. Eligibility for conditional sentences was restricted to offenders
    convicted of, among other things, offences that do not attract a mandatory
    minimum, and are sentenced to imprisonment of less than two years.

[236]

This discrimination among offences raises
    difficult questions for this appeal. As canvassed above, the restriction on
    drug trafficking offences took effect through the
Safe Streets and
    Communities Act
. But it is worth considering a counterfactual scenario in
    which this restriction had been part of the original legislation that created
    the conditional sentencing regime.

[237]

In creating the conditional sentencing regime in
    the mid-1990s, it was open to Parliament to conclude that it would be wrong
    an unfair distribution of benefits and burdens, and an injustice to the
    community  to make conditional sentences available for drug trafficking
    offences. Had it done so and excluded drug trafficking offences from the
    regime, would it have thereby failed to respect anyones right to equal
    protection and benefit of the law without discrimination?

[238]

The answer is clearly no.

[239]

That being so, can it be said that there is a
    constitutionally relevant distinction between creating a conditional sentencing
    regime that excluded drug trafficking offences
ab initio
, and a regime
    that was later amended to exclude drug trafficking offences? Again, the answer
    must be no. These are two means to the same end. Either way, the availability
    of conditional sentences to Aboriginal offenders would be less than it would
    have otherwise been. It would result in greater incarceration. Unless there is a
    constitutionally relevant distinction between enacting legislation and amending
    it  something that would in any event be invisible to an analysis focused
    solely on the creation or perpetuation of disadvantage  treating these two
    means to the same end differently would be putting form over substance:
Quebec
    v. Alliance
, at para. 33.

[240]

Suppose I am mistaken and Parliament could not
    have excluded drug trafficking offences from the conditional sentencing regime
ab
    initio
. A further set of difficulties must be confronted. The conditional
    sentencing regime, as it was originally enacted and as it remains, is not
    available universally. Most prominent among its restrictions is that
    conditional sentences are not available for any offence that attracts a
    mandatory minimum sentence or where the court imposes a sentence of
    imprisonment of two years or more. Undoubtedly, there are many Aboriginal
    offenders who, but for these restrictions, would receive conditional sentences
    instead of incarceration. Do these, and many other, restrictions on the
    availability of conditional sentences also limit the s. 15(1) rights of
    Aboriginal offenders?

[241]

It might be objected that this court is not
    asked to resolve these broader questions of constitutionality. That is true,
    but the problem of the two-year sentence limitation is illustrative of a
    problem of principle that cannot be avoided. On the logic of
Taypotat
,
    it would seem there could be
no
constitutionally permissible
    restrictions on the availability of conditional sentences whatsoever. Every
    conceivable restriction would exclude some offenders, and necessarily some
    Aboriginal offenders. Every Aboriginal offender who would be denied a
    conditional sentence because of the operation of a statutory restriction would
    contribute to overincarceration, constituting a disadvantage and an
    infringement of s. 15(1). Nothing short of unlimited availability of
    conditional sentences for all Aboriginal offenders, for all offences, would
    suffice. I struggle to square this outcome with the fact that Parliament was
    under no constitutional obligation to establish a conditional sentence regime
    in the first place.

[242]

Moreover, this principle, like all legal
    principles, is universalizable and cannot logically be contained by the facts
    of the instant case. The problem, for the
Taypotat

test, caused
    by the creation of limits on conditional sentences would similarly obtain
    wherever there are limits defining the boundaries of legislative schemes that
    benefit a disadvantaged group. A scheme, once adopted, could never be amended
    without infringing s. 15(1).

[243]

The broad
Taypotat
methodology
    inevitably leads to the phenomenon of the constitutional ratchet: remedial
    legislation can never be amended or repealed unless replaced by something more
    beneficial to the disadvantaged group.

[244]

As I argued above, for s. 15(1) doctrine to
    provide guidance to judges, it must not stop at the determination that a group
    has been simply disadvantaged, in the sense that there has been a setback to
    the interests of its members. The analysis must address the further question of
    whether a person or group has suffered wrongful discrimination, in the sense of
    not being treated with the concern and respect that is owed to equals. This is
    necessarily a contextual inquiry that must extend beyond the preliminary issue
    of whether anyone has been disadvantaged. This contextual analysis is central
    to the application of the principle of substantive equality  the concept of
    what it means to treat others as equals and not draw distinctions using irrelevant
    criteria. To avoid this analysis  and move straight to s. 1 and the
    proportionality analysis required by
R. v. Oakes
, [1986] 1 S.C.R. 103
     would denature the right to equal protection and equal benefit of the law
    without discrimination.

[245]

The division of reasoning between s. 15(1) and
    s. 1 is largely technical and artificial. The court in
Andrews

was
    preoccupied with establishing clear analytical roles for s. 15(1) and s. 1, and
    the lines drawn may be proving unstable. But it would be a mistake to respond
    to this instability, as
Taypotat

has, by decontextualizing s.
    15(1) analysis and either leaving questions of context to s. 1 analysis  where
    they have no obvious home  or, more likely, setting them aside entirely. For
    not all contextual considerations relevant to a discrimination analysis will
    re-emerge under the
Oakes
test. That test is intended to assess how
    other principles proper to a free and democratic society interact with
    equality. The contextual component of a discrimination claim is either assessed
    at the s. 15(1) stage or not at all.

(b)

A Contextual Review of the Legislation and
    Concept of Overincarceration

[246]

The difficult questions canvassed above, and the
    inability of the
Taypotat
test to provide the resources to resolve
    them, suggest that there is something missing in the
Taypotat
test: a
    contextual inquiry into whether an instance of discrimination  understood from
Taypotat
, at para. 20, as the simple determination that some
    government action has widen[ed] the gap and set back the interests of a group
    identified by an enumerated or analogous ground  is wrongful.

[247]

With this critique of
Taypotat
in mind,
    I will explain why I disagree with my colleagues conclusion that the appellant
    has been disadvantaged on the basis that the
Safe Streets and Communities
    Act
undermines the
Criminal Code
s efforts to remedy
    overincarceration.

[248]

My colleague identifies the relevant
    disadvantage as overincarceration of Aboriginal offenders. General
    overincarceration is the normative judgment that the state (both as a result of
    legislation and judicial sentencing decisions) has historically over-used
    incarceration as a sanction, and that its use should be reduced:
R. v.
    Gladue
, [1999] 1 S.C.R. 688, at paras. 52-57. Parliament intended to
    remedy general overincarceration with the requirement in s. 718.2(e) of the
Criminal
    Code
that all available sanctions [] that are reasonable in the
    circumstances should be considered in priority to imprisonment. This is a
    provision of broad application, but it also has specific language separately
    addressing the situation of Aboriginal offenders: sentencing judges are
    required to pay particular attention to the circumstances of Aboriginal
    offenders.

[249]

It is important to note at the outset that s.
    718.2(e), although it is remedial  meaning that its enactment was intended to
    effect a change in the law and not merely codify the law as it existed  does
    not therefore have constitutional status. Just as the state of the law was
    changed through the enactment of s. 718.2(e) and its interpretation in
Gladue

and subsequent cases, these propositions of law are themselves subject to
    change through subsequent legislative enactments such as the
Safe Streets
    and Communities Act
.

[250]

The reference in s. 718.2(e) to all
available
sanctions, other than imprisonment (emphasis added) is not a reference to a
    fixed category. What was an available sanction prior to the adoption of the
Safe
    Streets and Communities Act
became an unavailable sanction. The effect of
    the Acts amendments was an increase in incarceration for both Aboriginal and
    non-Aboriginal offenders. The salient question is whether these changes are
    contrary to the
Charter
. I disagree with my colleague over the
    proposition that legislation that restricts the application of a remedial
    regime is inherently discriminatory and wrongful.

[251]

The concept of Aboriginal overincarceration has
    two dimensions. One is the normative judgment underlying s. 718.2(e): courts
    have over-relied on incarceration generally and, as a requirement of justice,
    should use alternatives where available. Although overincarceration in this
    sense is an injustice, it is not the specific injustice of discrimination or
    failure to respect equality.

[252]

A second type of Aboriginal overincarceration is
    comparative and does invite discrimination-based scrutiny. It is based on the
    empirical observation that Aboriginal offenders as a group have tended to
    receive more and longer custodial sentences than non-Aboriginal offenders for
    the same offences. Redressing this type of overincarceration has been a
    priority for both Parliament and the judiciary. In
Gladue
and in
R.
    v. Ipeelee
, 2012 SCC 13, [2012] 1 S.C.R. 433, the Supreme Court directed
    sentencing judges to be alive to systemic discrimination in sentencing,
    particularly the problem that facially neutral sentencing criteria themselves
    may systemically disadvantage Aboriginal offenders. One contributor to
    Aboriginal overincarceration has been the disproportionate difficulty faced by
    Aboriginal offenders in satisfying the material and other conditions necessary
    for conditional sentences.

[253]

My colleague draws the conclusion that because
    the appellant would likely have received a conditional sentence had one been
    available prior to the enactment of the
Safe Street and Communities Act
,
    but was instead incarcerated, her incarceration exacerbated the overall
    phenomenon of Aboriginal overincarceration, which constitutes disadvantage and
    is therefore an infringement of s. 15(1).

[254]

I cannot agree. Statistical overincarceration,
    of course, is profoundly suggestive of injustice. Where some group of offenders
    consistently receives harsher treatment than others, something is wrong. But
    further analysis is required to determine what that wrong is. The wrong is not
    in the
number
of incarcerated offenders, such that every addition to
    that number is itself a wrong, or any subtraction an amelioration of the wrong.
    Consider: legislation directing that all Aboriginal offenders should
    automatically receive conditional sentences if they satisfy some arbitrary
    criteria, such as being left-handed, would
reduce
the absolute numbers
    of Aboriginal offenders incarcerated. In an attenuated sense it would reduce
    overincarceration. But given that it would do nothing to address the
    identification and remediation of the actual wrongs committed at the sentencing
    stage  wrongs evidenced by statistical overincarceration  it would not
    address overincarceration in a substantive sense. It would be an error to
    conclude from a bare statistic  a change in the absolute numbers incarcerated
     that the legislative change producing that consequence is either ameliorative
    or productive of wrongful discrimination.

[255]

Some instances of incarceration are justifiable
    and others are not. What is at issue in this appeal is whether Parliament is
    entitled to decide, in categorical terms, that
some offences
, by their
    nature, will always merit a term of incarceration, no matter who commits them
    or in which circumstances. Whether this decision limits s. 15(1) rights is not
    established by the fact that more Aboriginal offenders, in absolute terms, will
    therefore be incarcerated than would otherwise have been the case.

[256]

The decision to remove the availability of
    conditional sentences for drug importation and trafficking offences
    unquestionably has a negative impact on the appellants interests and the
    interests of all Aboriginal persons convicted of these offences. The appellant
    loses the benefit of a more lenient sentence, which may have better assisted
    her reintegration into the community.

[257]

The salient question is, in intending that
    persons who commit these drug trafficking offences be ineligible for
    conditional sentences, and in knowing that Aboriginal persons would also commit
    these offences and therefore also be ineligible for conditional sentences, and that
    the numbers of Aboriginal offenders incarcerated would therefore also rise, did
    the legislature treat Aboriginal offenders as though they were not the equals
    of others  that their interests did not count, or were less important than the
    interests of others?

[258]

It did not. It could not have escaped
    Parliaments knowledge that Aboriginal persons would be so impacted. It was
    even put to Parliament in committee and in debates in Parliament. My colleague
    objects that no answer was received: at para. 55. But the answer was the
    legislation. Parliament was under no duty to consult or to provide reasons. In
    deciding not to carve out any exemption for Aboriginal offenders, Parliament
    made the decision that for these and other serious offences, justice required
    that all offenders receive a sentence of incarceration. Nothing in this
    decision widens the gap between the appellant and any other offender charged
    with the same offences, treats the appellant as a means to an end, or treats
    the appellant in a manner that denies her agency or equality. The unfortunate
    reality is that many persons in Canada have suffered wrongs and deprivations
    similar to those suffered by the appellant. Many have been confronted with
    terrible options. But not all persons, and not all Aboriginal persons, have
    made the choice to participate in a scheme of drug importation.

[259]

In legislating as it did, and accepting the
    side-effect that additional Aboriginal offenders would be incarcerated as a
    result, Parliament did not treat Aboriginal persons as undeserving of the
    concern, respect, and consideration owed to all members of the political
    community. Parliaments reasoning is categorical: offenders who choose to
    engage in drug trafficking crimes  whether they do so from circumstances of
    poverty or riches  inflict harm on their communities, seize advantages for
    themselves, and thus upset the balance of benefits and burdens in a way that
    can only be restored through a focus on deterrence and denunciation, and the
    imposition of the more extreme deprivation of liberty that comes with
    incarceration. This policy rationale obtains irrespective of whether the
    offender is Aboriginal or a member of any other community in Canadian society.

[260]

Parliaments legislative decision may be harsh.
    It may even be mistaken or unwise. But it is not for any of these reasons
    discriminatory.

D.

Section 1

[261]

Although I have concluded that the s. 15(1)
    rights of the appellant have not been limited by the legislation, I will
    nevertheless proceed to a s. 1 analysis in the event that the preceding
    analysis is mistaken.

[262]

The Supreme Court mandated in
Oakes

that
Charter
rights analysis should follow a two-step inquiry. The first
    step, an inquiry into whether an exercise of a right or freedom has been
    limited by state action, may result in a provisional conclusion that invites
    the second inquiry: is the limit identified demonstrably justified in a free
    and democratic society?

[263]

It is important to be clear about the nature of
    the analysis at both stages. The first-stage analysis is not directed toward
    the determination of whether a right has been
violated
, and the second
    stage is not a matter of justifying or excusing violations of rights:
Bracken
    v. Fort Erie (Town)
, 2017 ONCA 668, 137 O.R. (3d) 161, at para. 61;
Bracken
    v. Niagara Parks Police
, 2018 ONCA 261, 141 O.R. (3d) 168, at para. 33.
    Were it otherwise, courts would be in the scandalous position of being invited
    to sanction rights violations. Canadian legislatures, in carrying out even the
    most ordinary and banal functions ordering the exercises of expression or
    liberty would thereby be chronic and deliberate violators of rights. They
    would even in many cases  as with the case of criminal prohibitions on making
    child pornography  be morally obligated to violate rights: Grégoire Webber,
    Rights and Persons in G. Webber, ed.,
Legislated Rights: Securing Human
    Rights through Legislation
(Cambridge: Cambridge University Press, 2018)
    27, at pp. 37-39. Such a conception of s. 1 reasoning would distort our
    understanding of the nature of rights, and how to reason using rights.

[264]

It is only possible to determine that a
    claimants
Charter

rights have been violated after considering
    whether the limit placed on the exercise of a
Charter

right is
    justified:
McKitty v. Hayani
, 2019 ONCA 805, 439 D.L.R. (4th) 504, at
    para. 81. Although the Supreme Court uses the language of infringement (and
    violation), it has explained that it does not use these terms in their
    ordinary, pejorative sense, but intends them to be understood as synonymous
    with limit:
Frank v. Canada (Attorney General)
, 2019 SCC 1, [2019] 1
    S.C.R. 3, at para. 40. The use of this artificial vocabulary is not necessarily
    fatal to sound reasoning, provided that it is understood that  whatever
    vocabulary one adopts  the conclusion of the first-stage analysis is
not
a determination that anyones
Charter
rights have been violated.
    However, I agree with Côté and Brown JJ., dissenting in
Frank
, that
    the use of the language of infringement and violation in this context is a
    serious impediment to clear
Charter
reasoning and for that reason
    ought to be avoided:
Frank
, at para. 122. As they noted, [i]t
    distorts our constitutional discourse, and our understanding of rights and of
    the legitimate boundaries of state action, to speak of individuals having
    rights which may be justifiably violated by the state:
Frank
, at
    para. 122.

[265]

The result of the first stage of
Charter
analysis is only ever provisional. It can only ever be provisional, because the
    rights claim has not yet been considered in full context  placed within a
    society of other persons and groups, each with their own needs and claims
    against governments and each other. As I stated in
Bracken v. Fort Erie
,
    at para. 61:

The violation of a
Charter
right is [] established at the conclusion of the s. 1 analysis, after
    taking into account the reasons for the limit imposed by government, responding
    to the needs and circumstances of others living in community in a free and
    democratic society: Régimbald and Newman,
The Law of the Canadian
    Constitution
, 2nd ed. (Markham: LexisNexis Canada, 2017), at p. 546-47; see
    also Webber,
The Negotiable Constitution
.

(1)

Pressing and
    Substantial Legislative Objective

[266]

Following the
Oakes
framework, the
    preliminary inquiry is an identification of the purpose of the legislation, and
    an assessment of whether it is pressing and substantial.

[267]

My colleague provides an initial
    characterization of the purpose of the legislation, at para. 148: to maintain
    the integrity of the justice system by ensuring that offenders who commit
    serious offences receive prison sentences. That characterization is
    supplemented at para. 163: to promote the integrity of the administration of
    justice and the publics confidence in it by ensuring that serious crimes are
    punished with a sufficiently strong sentence, which Parliament deems to be a
    sentence of incarceration.

[268]

I prefer a simpler formulation, which is
    nevertheless entirely consistent with my colleagues: Parliaments purpose in
    enacting the legislation was to ensure that offenders who commit serious crimes
    do not receive what Parliament has determined to be an excessively lenient
    sentence. Stated positively, it is that offenders who commit serious crimes
    receive fit sentences.

[269]

Although my colleague does not express an
    opinion on the question in her s. 1 analysis, I cannot see any basis for
    judging this objective to be other than pressing and substantial. Justice can
    be equally served by legislation that prevents overly lenient punishment as
    well as overly harsh punishment.

[270]

Once a law has been found to have a pressing and
    substantial objective, the framework involves a proportionality analysis that
    has been usefully summarized in
R. v. K.R.J.
, 2016 SCC 31, [2016] 1
    S.C.R. 906, at para. 58:

A law is proportionate if (1) there is a
    rational connection between the means adopted and the objective; (2) it is
    minimally impairing in that there are no alternative means that may achieve the
    same objective with a lesser degree of rights limitation; and (3) there is
    proportionality between the deleterious and salutary effects of the
    law. The proportionality inquiry is a normative and contextual one, which
    requires courts to examine the broader picture by balanc[ing] the interests of
    society with those of individuals and groups. [Citations omitted.]

(2)

Rational Connection

[271]

There is no serious dispute that the legislation
    is rationally connected to its purpose.

(3)

Minimal Impairment

[272]

My colleague finds that the s. 1 analysis is
    resolved at the minimal impairment stage. She rightly rejects the Crowns
    argument that the legislation is minimally impairing because sentencing judges
    retain the option of providing a suspended sentence. That argument is indeed
    unimpressive, for the reasons given by my colleague. That does not, however,
    dispose of the minimal impairment issue.

[273]

Minimal impairment is intended to be a technical
    inquiry rather than a normative one. Holding the objective of the legislation
    constant, could that objective be realized by more efficient (in this case,
    less restrictive) means?

[274]

The objective of the legislation, on both my
    colleagues characterization and my own, is to prevent persons who have
    committed certain offences from receiving a type of sentence judged
    categorically to be unfit for that offence. However, the legislation is
    premised on the normative judgment that for some offences, imposing a
    conditional sentence would be a failure of justice  that nothing less than a
    period of incarceration would suffice. The reasoning is categorical, and does
    not admit of exceptions. It maintains that there are no details about the
    circumstances of the offence or of the offender  no personal circumstances
    that could be relevant to the determination that persons who engage in the
    specified offences must receive at least some minimal period of incarceration.

[275]

Parliament is permitted to make categorical
    determinations of this sort. The minimal impairment inquiry does not create an
    indefeasible requirement that every rule have exceptions. Arguments that rules
ought
to have exceptions are not technical ends-means inquiries of the sort that the
    minimal impairment inquiry is equipped to handle: Francisco J. Urbina,
A
    Critique of Proportionality and Balancing
(Cambridge: Cambridge University
    Press, 2017), at pp. 36-38. They are normative arguments that properly belong
    to the final inquiry  whether the legislation, all things considered,
    constitutes a reasonable limit on rights.

(4)

Overall
    proportionality

[276]

At this stage, what is required is an inquiry
    into the reasonableness of the balance struck between the salutary and
    deleterious effects of the impugned legislation. It is important to keep in
    mind that at this stage of the analysis there has been no finding that anyones
Charter
rights have been violated, and the s. 1 inquiry is not as to
    whether the state was justified in violating a
Charter
right.

[277]

The deleterious effect of the legislation on the
    appellant is that she has been more thoroughly deprived of her liberty than she
    would have been had she received a conditional sentence. The effects include
    the attendant social and economic harms that necessarily result from
    incarceration. The effects do not include any negative stereotyping or
    prejudice.

[278]

To understand the salutary effects of the
    legislation requires an assessment of its function in maintaining a social
    order. Benefits that are common to all in a society necessarily appear more
    abstract and intangible  less real  than the immediate effects on a
    particular individual. But they are not, for that reason, any less real or
    significant in the analysis.

[279]

The normative foundation of the impugned
    legislative provisions is the judgment that persons who commit certain offences
    ought to be punished by means of incarceration. It is a judgment about what
    justice requires, taking into account (with respect to drug trafficking and
    importing) the enormous financial incentives and the incalculable human misery
    caused by those who facilitate drug addiction. It is a judgment that individual
    circumstances, including indigeneity, are irrelevant to the determination that
    a fit and proper sentence for such offences include some term of incarceration.
    Although addressing race-based disadvantage has itself been identified by
    Parliament as an important legislative objective, it is not the only objective
    to which Parliament must have regard, and it is subject to limits. I cannot
    find that in limiting the reach of conditional sentences in the way that it
    did, for the purposes that it did, Parliament acted unreasonably.

[280]

My colleague faults the Crown for not having
    provided evidence in support of its position on s. 1: at para. 177. I am not
    clear about what the nature of such evidence would be. As McLachlin C.J. noted
    in
R. v. Sharpe
, 2001 SCC 2, [2001] 1 S.C.R. 45  echoing Aristotles
    injunction in Book 1 of
Nicomachean Ethics

to look for
    precision in each class of things just so far as the nature of the subject
    admits  the courts cannot hold Parliament to a higher standard of proof than
    the subject matter admits of: at para. 89. The legislation at issue in this
    appeal is based on a normative proposition, not an empirical one: that
    conditional sentences are too freely available for offences that require a more
    severe punishment. Reasonable people may disagree as to whether this is a good
    policy judgment or a poor one. That is to be expected. This disagreement may
    give rise to further legislative change. But the question is for Parliament,
    not the court. Even if the law is in some ways misguided, it is not on the
    basis of a failure to respect anyones right to equal treatment and equal
    benefit of the law, which is what frames both the s. 15(1) analysis and the
    analysis of whether the limit defining that particular right is justified.

[281]

I would not allow the appeal on this ground.

E.

Section 7

[282]

I am substantially in agreement with my
    colleagues framing of the s. 7 analysis and, as explained above, her
    characterization of the objective of the legislation. I also agree with her
    analysis and conclusion that the impugned legislation is not arbitrary and does
    not, for that reason, deprive the appellant of liberty in a manner that does
    not accord with principles of fundamental justice.

[283]

However, I do not agree with my colleagues
    conclusion that the impugned legislation offends the principle of overbreadth.
    An overbroad law is one that is so broad in scope that it includes
some
conduct that bears no relation to its purpose (emphasis in original):
Canada
    (Attorney General) v. Bedford
, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para.
    112. The purpose of the impugned provisions is to ensure that offenders who
    commit serious crimes receive fit sentences, deemed to include a period of
    incarceration. What constitutes a serious crime is of course debatable. But
    Parliament has sought to make the law determinant by reference to offences
    punishable by maximum periods of incarceration of 10 years and 14 years. It
    adopts, as the rough indicia of seriousness, the classifications previously
    made by Parliament in assigning maximum sentences. I would not subordinate
    Parliaments assessment of the seriousness of these offences to my own.

F.

Disposition

[284]

The impugned legislation does not limit the
    appellants rights under either s. 15(1) or s. 7. I would dismiss the appeal.

Released: K.F. July 24, 2020

B.W Miller J.A.

[1]

By oversight, Ms. Sharma did not ask the sentencing judge to
    strike down s. 742.1(e)(ii). With the consent of the Crown, that section is
    included in the constitutional challenge on the appeal.

[2]
The parties abandoned the s. 15 arguments before the Supreme Court
    of Canada: 2015 SCC 15, [2015] 1 S.C.R. 773.

[3]

See Dale Gibson,
The Law of the Charter:
    Equality Rights
(Toronto: Carswell, 1990), at pp. 70-81; Patrick J.
    Monahan, Byron Shaw, Padraic Ryan,
Constitutional Law
, 5th ed.

(Toronto:
    Irwin Law, 2017), at pp. 462-65; David M. Beatty, The Canadian Conception of
    Equality (1996) 46:3 U.T.L.J. 349, at pp. 350-53; Charles-Maxime Panaccio,
    Section 15 and Distributive Underinclusiveness: Aristotles Revenge (2018)
    38:1 N.J.C.L. 125.

[4]

Law
also relied heavily on the concept of human dignity, which has traditionally
    grounded the concept of equality: see paras. 51-54. The concept of human
    dignity that
Law
advanced, however, was idiosyncratic and highly
    subjective. The resulting conception of discrimination was a function of how
    legislation impacted a claimants dignity, with dignity defined as feelings
    of self-respect and self-worth: at para. 53. This inquiry into human dignity as
    feelings of self-respect and self-worth was expressly rejected, in
R. v.
    Kapp
, as a misconceived abstract and subjective notion ill-suited to
    forming the basis for a legal test: 2008 SCC 41, [2008] 2 S.C.R. 483, at paras.
    21-22.
Kapp
nevertheless affirmed, at para. 21, that the protection of
    all rights under the
Charter
has as its lodestar the promotion of human
    dignity, and the other aspects of s. 15(1) doctrine articulated in
Law
,
    grounded in
Andrews
, have never been overturned.