Sentencing in Canada : Essays in Law, Policy, and Practice edited by David Cole and Julian Roberts
“A unique collection of essays that explore all key aspects of sentencing. The volume is not simply a statement of the law—instead, the chapters examine the wider context in which sentencing and parole decisions are taken. The volume also incorporates findings from the latest empirical research into sentencing policy and practice in Canada, including important issues such as sentencing Indigenous persons.”
Financial Skills for Professionals by Vern Krishna
“This book uses clear, concise explanations and simple numerical examples of what lawyers and professional persons need to know to understand financial law and statements.”
The Law of Evidence – 8th ed. by David Paciocco, Palma Paciocco, and Lee Stuesser
“Canada’s leading text in evidentiary law in both criminal and civil cases. In this newest edition of this frequently cited book, the authors continue the practice of organizing, explaining, and illustrating the law of evidence clearly, simply, and practically. The Law of Evidence, 8e, provides authoritative analyses of new cases, and portions of the book have been rewritten or reorganized to enhance discussion of the most important topics in evidentiary law.”
Canadian Family Law – 8th ed. by Julien D. Payne and Marilyn A. Payne
“The eighth edition of Canadian Family Law is a companion volume to Payne and Payne, Child Support Guidelines in Canada, 2020. Previous editions of both of these texts have been cited in hundreds of judicial decisions across Canada, including the Supreme Court of Canada and appellate courts from coast to coast. Canadian Family Law has also been adopted as required reading in family law courses presented by several colleges and universities across Canada.”
Substantive Law
Administrative Law
Bell Canada v. British Columbia Broadband Association, 2020 FCA 140: Appeals of order issued by the CRTC retroactively setting final rates that large telephone and cable companies can charge for aggregated wholesale high speed access services. While the appeal is consolidated, the telephone companies and the cable companies have different arguments. Telephone companies argue that the CRTC erred in law or jurisdiction; cable companies argue the CRTC committed one or more legal jurisdictional errors. Respondents represent or are independent internet service providers. Analysis of the legislative framework of the Telecommunications Act. Appeals dismissed.
… On this issue, two common law apex courts have recently divided: the United Kingdom Supreme Court taking one view, the High Court of Australia a very different view. …
Civil Litigation
Bent v. Platnick,2020 SCC 23: Appeal concerning s.137.1 of the Courts of Justice Act, R.S.O. 1990, c. C-43. Appellant sent an email to members of the OTLA listserv naming the respondent and alleging that he altered doctors’ reports and changed a doctor’s decision. Respondent commenced a lawsuit in defamation. Appellant filed a motion under s.137.1 of the CJA to dismiss; motion judge allowed, appeal court set it aside and remitted defamation claim to the Superior Court for consideration. Held: Appeals should be dismissed. Per Wagner C.J. and Moldaver, Côté, Brown and Rowe JJ: Claim in defamation should be allowed to continue. It deserves to be adjudicated on its merits. Appellant has met her threshold burden that her email constitutes an expression relating to a matter of public interest; respondent has also discharged his burden that the proceeding has substantial merit. Abella, Karakatsanis, Martin and Kasirer JJ. dissent.
1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22: Litigation on same section of the Courts of Justice Act, different conclusion. Appellant brought action against respondent in breach of contract; respondent moved to rely on s.137.1 to have action dismissed. Respondent opposed a proposed subdivision development by the appellant and testified at a hearing of the Ontario Municipal Board. Significant analysis of statutory interpretation. Appeal dismissed. Côté J. (Wagner C.J. and Abella, Moldaver, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ. concurring).
Reference re Section 6 of the Time Limits and Other Periods Act (COVID-19) (CA), 2020 FCA 137: Response to Attorney General regarding meaning and application of s.6 in order to reduce uncertainty. Attorney General submits that s.6 suspends retroactively all time limits established by or under an Act of Parliament between March 13 and September 13, 2020. Court issues a direction under Rule 54 to clarify.
John Deere Financial Inc. v. Macdonald (Rural Municipality), 2020 MBCA 90: Respondent municipality appealed an order declaring the applicant the lawful owner of seized property and requiring it to be returned. The RM seized two front-end loaders leased from the applicant by the owner of property in a land-use dispute. Appeal dismissed.
Rylaarsdam v. Balcaen, 2020 MBCA 91: Appeal by respondent of decision appointing applicant (her brother) as sole attorney for Arie Jacob Rylaarsdam, requiring him to provide an annual accounting to her and an accounting to the Master every two years. Respondent raised numerous grounds of appeal relating to the conduct of the hearing and the decision itself. Appeal dismissed.
Carlson v. Dunn et al,2020 MBCA 85: Defendants’ appeal of finding of liability in personal injury decision. Plaintiff suffered severe injuries falling off the roof of the defendants’ garage while inspecting work done by one of the defendants. Defendants argue that trial judge made errors in factual findings, findings of negligence and order of costs. Appeal partially allowed, setting aside judge’s finding of liability against Dunn.
Evans v. Norway House Fisherman’s Co-op Ltd. et al,2020 MBCA 83: Appeal of denial of application for judicial review. Applicant’s membership in the Co-op was terminated. Applicant claims application judge should have ruled on his claim that the Co-op breach his right to procedural fairness. Application judge ordered a trial of the oppression claim against respondent Saunders. Appeal dismissed.
Winnipeg (City) v. Caspian Projects Inc. et al.,2020 MBQB 129: Series of contested motions: defendants’ motion to strike the plaintiff’s statement of claim; defendants’ motion for further and better particulars (argued in the alternative to their motion to strike the statement of claim); plaintiff’s motion to amend its statement of claim; motion brought by the “Sheegl defendants” for severance; and a motion brought by the “Sheegl defendants” to strike the cross-claim brought by the “Consultant Defendants”. Summary of determinations: defendants’ motion to strike the City’ s statement of claim is dismissed; defendants’ motion for further and better particulars is dismissed; City’s motion to amend its statement of claim is granted; Sheegl Defendants’ motion to sever is granted; Sheegl Defendants’ motion to strike the cross-claim of the Consultant Defendants is dismissed.
Vale v. Schwartz et al.,2020 MBQB 127: Motion for summary judgement. Plaintiff alleges that some defendants stole nickel from the plaintiff’s mining operation and unlawfully converted it to nickel; other defendants bought the stolen nickel and sold it. Motion is successful; damages will be argued later.
Michael A. Skene, Dirk Laudan. Canadian Construction Law Reform: A Survey of Recent Developments in Builders Liens, Prompt Payment, Interim Adjudication and Mandatory Construction Bonding. 2020 J. Can. C. Construction Law 93. (WLNC – request a copy.)
Corporate & Commercial Law
Fire Sky Energy Inc. v. EverGro Energy Corporation, 2020 MBQB 133: Both parties claim a leasehold interest in petroleum located near Virden. Plaintiff claims defendant’s lease expired January 2016 and theirs came in to effect in February 2017. Defendant contends its interpretation of the lease is that it remains valid. Lessor agrees with plaintiff. Analysis of the terms of the lease. Plaintiff is successful but no damages awarded.
R. v. McDonald, 2020 MBCA 92: Appeal of conviction for first degree murder. He is seeking a manslaughter verdict or a new trial. Ground of appeal is that it is unreasonable; accused argues that trial judge’s decision was based on two key findings not supported by the evidence. Steel, JA found that the trial judge carefully reviewed and evaluated all the evidence and provided reasons for what he accepted. Trial judge’s reasons are entitled to deference. Appeal dismissed.
R. v. Contois, 2020 MBCA 89: Appeal of conviction for second degree murder and request for leave to appeal the sentence for that offence. Main issue is narrow – whether the accused should have known that when he discharged a firearm, death would be the result. Analysis of s.229(c) of the Criminal Code and the assessment of the subjective knowledge of the accused. Appeal dismissed.
R. v D.T., 2020 MBCA 88: Appeal of conviction for sexual assault. Accused argues that trial judge misapprehended the medical evidence. Court cites R. v. Morrissey and R. v. J.A.W. as authority on test for determining whether there was a misapprehension of evidence amounting to a miscarriage of justice. Appeal dismissed.
R. v. Thorassie,2020 MBCA 87: Motion by accused for an extension of time to file an appeal regarding his convictions and an extension to file an application for leave to appeal his sentence. Accused was convicted of offences of aggravated assault endangering life, possession of a knife, and carrying a concealed weapon. Burden is on applicant to show why he should receive an extension. Difficulties with completing the application for appeal on time appeared to be administrative, and grounds for appeal had merit; both motions allowed.
R. v J.G.H.W.,2020 MBCA 86: Request for appeal by the Crown re probationary sentence received by young person for sexual offences. Crown had recommended two years custody followed by one year probation; defence asked for two years supervised probation. Sentencing judge concluded there were alternatives to custody and sentenced him to probation. CA determined that sentencing judge erred in principle in imposing a sentence holding the young person accountable through meaningful consequences and added a period of incarceration. At time of hearing, accused had been compliant with the terms of his supervised probation for several years. Sentence was varied, adding a 12-month custody and probation order, which was then stayed.
R. v. Thomas,2020 MBCA 84: Decision adjourning an appeal. Accused pleaded guilty to second degree murder in 2011 and was sentenced to life imprisonment. A year later she filed a motion for an extension of time to appeal the conviction, which was heard in 2016, making a claim of “ineffective assistance of counsel”. Very little movement on file since then. Appeal adjourned until later date in fall.
R. v. Okemow,2020 MBQB 128: Sentencing decision for conviction of second degree murder. Plain language decision from Martin, J. taking into account a Gladue report, presentence report and various psychiatric fitness reports as well as victim impact statements. Delivered at God’s Lake Narrows First Nation. Also considers whether harsh nature of RCMP cells during trial should be taken into account in mitigation. Accused given sentence of life in prison, serving 16 years before asking for release, reduced by two months.
Leila Gaind. A Rose by Any Other Name: Well-Being Checks, a New Manifestation of Discriminatory Policing? (2020) 25 Appeal 3.
… Across jurisdictions, the data reveals that street checks disproportionately target Black, Indigenous, and other racialized and marginalized persons. … Now, street checks are a way for officers to check in on the “well-being” of marginalized community members. In Vancouver, the VPD has framed this practice as promoting a social good, but this article contends that well-being checks are another manifestation of arbitrary street checks.
Don Stuart. Labillois: The New Power to Demand an ASD without Reasonable Suspicion: What of Section 8?(2020) 63 C.R. (7th) 243. (WLNC – request a copy.)
Family Law
Michel v. Graydon, 2020 SCC 24: Retroactive variation of child support order under provincial legislation. Further clarification of the rule in D.B.S. Per the summary, “a court must analyze the statutory scheme in which the application was brought, and the different policy choices made by the federal and provincial governments must be respected.” Respondent father had understated his income for child support purposes; mother was dependent on social assistance and assigned her rights to receive child support to the Minister. Minister never authorized an application to review child support. In 2015 mother applied to retroactively vary child support (terminated in 2012). Delay was reasonable – father had engaged in blameworthy conduct by failing to accurately disclose his income. Appeal allowed. Majority reasons (Moldaver, Côté, Brown, Rowe and Kasirer, J.J.) delivered by Brown, J. (paras. 1-37); concurring reasons of Wagner, C.J. and Martin, J. delivered by Martin, J. (paras. 38-135); further concurring reasons of Abella and Karakatsanis, JJ., delivered by Abella, J. (para. 136).
Rachel Birnbaum. Virtual Parent-Child Contact Post-Separation: Hearing from Multiple Perspectives on the Risks and Rewards. (2020) 39 C.F.L.Q. 75 (WLNC – request a copy.)
The Manitoba government is seeking feedback from the public on proposed measures to combat rural crime and metal theft through a new online questionnaire
A social impact bond is a social policy tool that brings together government, the private sector, not-for-profits and other stakeholders to deliver effective and prevention-focused solutions. Private investment is used to fund the programs initially, and then is repaid if social outcomes and cost savings are realized. These types of programs allow the government to explore more innovative solutions without financial risk, with the ultimate goal of delivering better outcomes for Manitobans.
In the newest addition to our Legal Ease Guides, we provide you with a helpful summary and quick tutorial of tracing the legislative history of federal and provincial acts.
Discover how to track changes to an act, find amendments, and discover the originating acts of current statutes.
New Online Titles
Information and Privacy Law in Canada by Barbara von Tigerstrom ”Explores how we can access information held by public bodies, what governments and other organizations can do with information about us, and how we can use the courts or other mechanisms to hold others accountable when they violate our privacy or misuse our personal information.”
Mergers, Acquisitions and Other Changes of Corporate Control – 3rd ed. by Christopher C. Nicholls “This book offers a succinct and insightful discussion of the principal laws governing mergers and acquisitions transactions conducted in Canada. This third edition discusses the implications of a host of recent legal and regulatory developments since the publication of the second edition, including, in particular, the ground-breaking changes introduced by National Instrument 62-104 in 2016.”
The Canadian Investor: Challenge and Change in Canadian Capital Markets by Anita Indira Anand “This book examines all aspects of the many different institutions, programs, actors, and laws that affect investors’ rights. A detailed and accessible analysis of the Canadian landscape that explores securities commissions and other regulatory institutions through a contemporary lens, The Canadian Investor is currently unique in Canada.”
Criminal Procedure — 4th ed. by Steve Coughlan “This book sets out and examines the law governing criminal procedure in Canada. This fourth edition updates the law in all areas of criminal procedure. Most notably, it incorporates significant discussion of Bill C-75, which has made changes to a great many areas of the Criminal Code. In addition, it includes discussion of significant new SCC cases.”
Anatomy of an Election: Canada’s Federal General Election of 2019 Through the Lens of Political Law by Gregory Tardi “Anatomy of an Election takes a comprehensive and interdisciplinary look at Canada’s 2019 federal election as an example of a democratic election. This book is unique in its explanation of elections and electioneering. It sets the scene by enumerating the foundational elements of Canada’s electoral system, focusing on the constitutional principles, the legislation, and the major court judgments.”
Substantive Law
Administrative Law
Brown v. Canada (Citizenship and Immigration), 2020 FCA 130: Challenge to the enforcement of removal orders by the Canada Border Services Agency on behalf of the Immigration Division of the Immigration and Refugee Board of Canada. Appellant was found to be inadmissible to Canada on the basis of criminal convictions. He was held in correction facilities for five years before being deported. Appellant challenged constitutionality of detention under ss. 57 and 58 of IRPA, claiming it violates ss. 7, 9, 12 and 15 of The Charter. Although appellant had been removed from Canada and thus the challenge was moot, Federal Court exercised its discretion to hear the application in the public interest. FC dismissed the Charter challenge. Appeal is based on the following certified question:
Does the [Charter] impose a requirement that detention for immigration purposes not exceed a prescribed period of time, after which it is presumptively unconstitutional, or a maximum period, after which release is mandatory?
Decision is a further examination of Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9. Appeal is dismissed.
The College of Pharmacists of Manitoba v. Jorgenson, 2020 MBCA 80: Plaintiff applies for security for costs for defendant’s appeal and leave to serve its motion electronically and retroactively. This was an issue of defamation which had been decided for the plaintiff under summary judgment. Defendant claimed financial impecuniosity, but provided no evidence. Motion allowed; defendant ordered to pay security for costs in the amount of $5,000.
The Civilian Director of the Independent Investigation Unit v. The Winnipeg Police Service,2020 MBQB 125: Application for an order of mandamus requiring WPS to provide notes made by Cadets at an incident IIU is investigating. Order of mandamus is an extraordinary remedy granted only in exceptional circumstances. Analysis considers the legislative interpretation of “Cadet”. Neither the Independent Investigations Regulation nor The Police Services Act mention cadets. Grammond, J. concludes that IIU is entitled to product of cadet notes made relative to the incident being investigated.
Enns v. Rosenort Housing Corp. Inc. et al., 2020 MBQB 124: Motion by defendant for summary judgment. Claim for damages under The Occupiers’ Liability Act for a slip and fall on an icy driveway resulting in a broken ankle. Claim against R.M. of Morris and Cousin’s Gravel & Surfacing was dropped. Defendant Rosenort Housing must meet standard of reasonable care as imposed by the Act. Plaintiff feels there is a genuine issue for trial, Bond, J. disagrees. Summary judgment granted.
Winnipeg (City) v. Caspian Projects Inc. et al., 2020 MBQB 120: Plaintiff’s motion for non-party production pursuant to QB Rule 30.10 and defendants’ motion to strike significant portions of plaintiff’s supporting affidavits. Further to redevelopment of former Canada Post Building to use as WPS headquarters. City wants possession of documents that are in the possession of the RCMP. Legal framework includes the test applicable to a s.490(15) of the Criminal Code as articulated by Bond, J. in Canada Post Corporation v. Canada (A.G.), 2018 MBQB 87 at para. 17. Defendants’ motion to strike dismissed; City is entitled to the production order.
Corporate & Commercial Law
Desrochers v. Desrochers, 2020 MBQB 123: Reference to the Master for accounting and valuation of assets of a farming partnership. Parties had not documented in writing material agreements. Primary issue is disposition of three half sections of farmland which will be resolved by trial. Parties agree on value; plaintiff wishes to purchase defendant’s share, defendant wishes to purchase some or all or plaintiff’s share or an order for partition and sale. Reference evaluates contested secondary issues.
R. v. Poperechny, 2020 MBCA 81: Appeal of summary conviction reinstating charges that had been stayed due to delay in which delay was actually under the presumptive 18 month ceiling. Onus is on accused to establish that s.11(b) Charter Rights were infringed. Second level appeal pursuant to s.839 of the Criminal Code. Standard of review is correctness. LeMaistre, JA did not endorse appeal judge’s reasoning but agreed that the motion judge made a legal error and her decisions is not owed deference. CA conducted its own analysis of the delay and dismissed the appeal.
R. v. Slotta, 2020 MBCA 79: Request for leave to appeal and appeal of an eight year sentence of incarceration as a result of a guilty plea for one charge of importing fentanyl. Companion case to R. v. Petrowski. Accused requests a reduction in sentence, Crown asks that Court set sentencing ranges of double to triple the amount established in R. v. Rocha, 2009 MBCA 26. Appeal dismissed; Court also declined to set sentencing ranges.
R. v. Petrowski, 2020 MBCA 78: Similar to R. v. Slotta, request for leave to appeal and appeal of 10 year sentence of incarceration for charge of importing fentanyl. Accused argues that sentence is unfit and asks for reduction; Crown argues sentence should be longer due to the dangerousness of fentanyl. Both appeals dismissed.
R. v. Fisher, 2020 MBCA 75: Accused seeks to set aside a deemed abandonment of his appeal and to extend the time to file his motion. Accused filed notice of appeal of his conviction and sentence but due to issues with legal aid and the pandemic, was unable to respond in time. Crown has no objection to an extension. Accused bears onus to establish that he had a continuous intention to hear the appeal. Motion granted by appeal dismissed. LeMaistre, JA found no arguable error.
R v. E. Moar, 2020 MBQB 121: Sentencing hearing for accused who pled guilty to one count of manslaughter in the death of his mother. Aggravating factors include a recent criminal record, brutal and vicious assault leading to victim’s death, assault witnessed by victim’s young children, accused is assessed at a very high risk to reoffend. Mitigating factors include guilty plea (at the last minute), Gladue factors, family support. Crown seeks 14 years less time in custody, defence asks for go forward sentence of two years, taking into account time in custody. Sentence of incarceration of 8 years with a credit of 47 months for time in custody.
R. v. McIvor, 2020 MBQB 117: Appropriate sentence for conviction of intentionally discharging a firearm. Two accused involved; different sentences recommended. Crown argues that this accused has a higher moral culpability as well as a more substantial record, therefore his sentence should be longer. Defence argues for parity with other accused. Judge sentences accused to a year longer than co-accused.
R. v. Russell, 2020 MBQB 41: Trial where accused is charged with sexual assault. Events took place in 2006, when complainant was 12 years old. Toews, J. analyses the evidence using the three-step test set out in R. v. W.(D.). Accused is convicted.
R. v. Tarapaski, 2020 MBPC 36: Trial for charges of uttering threats, mischief, possession someone else’s identity documents, possession a firearm and more. Police found an “alleged makeshift firearm”. Discussion of interpretation of “possession” of the firearm as well as what is a firearm. Accused is found guilty of some of the counts and not guilty of others.
R. v. Bohemier, 2020 MBPC 33: Sentencing reasons for arson, assault, and assaulting a police officer. Accused is a vulnerable adult under the care of the Manitoba Trustee. On the night of the offence he was in a psychotic state brought about by schizophrenia. Analysis of principle of proportionality when crafting a sentence as well as other relevant sentencing principles. Accused was sentenced to two years for arson, concurrent sentence of six months for assault less time currently spent in custody.
Family Law
Van Easton v. Wur, 2020 MBCA 82: Appeal of charge of criminal contempt. Petitioner (mother) initiated a civil contempt proceeding based on father’s disobedience of a custody order. Court issued a criminal contempt proceeding due to father’s interaction with motion judge during the civil contempt proceeding. CA concluded that rules of natural justice had not been followed and quashed the criminal contempt charge.
CFS Western MB v. C.D.C. and W.D.V. et al.,2020 MBQB 118: Application by agency for an order for summary judgment to place child with paternal grandparents. Mother is opposed, arguing that the child should be returned to her care. Father of child has consented to the order placing the child with his parents. Concern relates to mother’s addiction issues and ability to parent the child. Analysis of whether summary judgment is fair and just in this situation; Abel, J. finds that it is. Agency’s motion is granted, with a guardianship order for six months.
WRCFS v. R.V.S. and D.D.T.,2020 MBPC 32: Due to previous involvement with the Agency, child was apprehended at birth. Issue is whether the Agency had reasonable and probable grounds to believe that the child was in need of protection. Court found that the Agency based its decision on speculation of harm. No direct caselaw on how to interpret serious harm in a non-emergency situation. Significant analysis of K.L.W. v. Winnipeg Child and Family Services,
Waraich v. Director of Employment Standards, 2020 MBCA 76: Motion for leave to appeal a decision of Small Claims Court. Leave can only proceed on a question of law or jurisdiction. Claimant had been issued five payment-of-wages orders. She referred two to the Manitoba Labour Board but not the other three. Director filed certificates under the Employment Standards Code making them enforceable as judgments of the court and collected the amounts by a third-party demand on the claimant’s bank. Director argued that trial judge erred in law in disposing of the payment-of-wages orders. Motion to appeal is allowed but only on the question of whether the trial judge applied the correct legal test in quashing two of the orders.
Klassen v. Rosenort Cooperative Limited, 2020 MBQB 116: Action for wrongful dismissal. Employment terminated for breach of confidentiality by providing a local manufacturer with an internal pricelist. Plaintiff is successful, and was awarded damages in lieu of notice, as well as aggravated and punitive damages.
Wills, Trusts & Estates
Preston et al v. Wachniak, 2020 MBCA 77: Motion by respondent seeking an extension of time to file a factum. Applicant held power of attorney for her mother, who moved in to a personal care home. Applicant applied for a writ of possession for her mother’s home, where the respondent (brother) resided, in order to sell it to fund her mother’s care. Writ of possession was granted, but stayed for 90 days in order for respondent to find new accommodations. Mother passed away and the writ of possession was set aside. Mother’s will divided her assets equally between all her children. New order for writ of possession was issued, and not appealed, making original appeal moot. Appeal dismissed.
Legislation
Federal
43rd Parliament, 1st Session (Parliament has been prorogued)
If you practice impaired driving law, you may want to review this decision from Saskatchewan Provincial Court on the constitutional validity of mandatory roadside breath tests as implemented by Bill C-46.
In R. v. Morrison, 2020 SKPC 28, M.M. Baniak, J. delivers a discerning judgment on a variety of issues: notice for delay, a voir dire re Charter challenges blended into the trial itself, analysis of s. 320.27(2) of the Criminal Code including a discussion of Parliament’s legislative intent by analysing the words of the preamble to Bill C-46, and a discussion of the judicial meaning of “immediately”.
…
[172] Obviously, s. 320.27(2) also has a deleterious effect. Every person in a free and democratic society should, to the greatest extent possible, be free from a warrantless search or seizure especially when no grounds or reasonable suspicion exist. This becomes even more concerning when that search or seizure incriminates the person.
[173] However, the new provision, even though it eliminates the reasonable suspicion requirement, is grounded to an extent on the premise that it is a supplemental investigative tool that is not determinative of a person’s guilt and is subject to judicial review. The search is restricted to provision of breath samples. It does not extend to a person’s belongings or his living space.
Even if it’s not applicable in Manitoba, I think it’s a good example of all the elements that can be considered in a decision.
The Ontario Court of Appeal issued a significant decision striking down some restrictions on conditional sentences. One of the arguments in R. v. Sharma, 2020 ONCA 478 concerned s. 15 of the Charter.
[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. …[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. Sharma’s 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.
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