ONCA on s. 15 of the Charter

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.

Additional commentary:

Some conditional sentence restrictions struck down in first successful Charter challenge”, (The Lawyer’s Daily)

WE scandal and an interview with Nader Hasan, (counsel for the appellant Ms. Sharma) (The Docket podcast; interview starts at 33:36)

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