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)

Decisions of the Week – Sentencing

We get many requests for decisions on sentencing, particularly where parties are aware of a particular sentence, however, often the decision is not reported. Last month the Provincial Court of Manitoba published several sentencing decisions, some of which are highlighted here.

R. v. Alcantara, 2019 MBPC 67 challenged the constitutionality of the mandatory minimum sentence for the offence of luring.

[1]          …. Counsel agree that the Court should first determine the fit and appropriate range of sentence, given this offender’s personal circumstances and need not examine the constitutional issue if the Court determines that the fit and appropriate sentence is within the range set out by the mandatory minimum. On the other hand, if the Court determines that a one year sentence is grossly disproportionate for Mr. Alcantara, the constitutionality of the sentencing provision is engaged, and the Court must determine if one year in jail amounts to cruel and unusual punishment for Mr. Alcantara.

R. v. Alcantara (Rolston, P.J.)

R. v. Little, 2019 MPBC 60 concerns the appropriateness of a joint sentencing submission. Along with a pre-sentence report, the Court ordered a supplementary Gladue-style appendix for further consideration of the offender’s circumstances.

[45]        … I am therefore, given his youth, his vulnerability and his Gladue and s. 718.2(e) factors (which apply to all offenders), of the view that the jointly proposed sentence should not be confirmed, that something less will be adequate and purposeful in the offender’s unique and most unfortunate circumstances. …

R. v. Little (Corrin, P.J.)

R. v. Goodman, 2019 MBPC 77 describes the difficulty of arriving at an appropriate sentence when the offender, with a diagnosis of Fetal Alcohol Spectrum Disorder commits a serious offence.

[1]            Sentencing is often described as more of an art than a science.  This is because although the Criminal Code sets out sentencing principles, the Court must still balance them in light of the circumstances of the offence and the offender. 

R. v. Goodman (L.M. Martin, P.J.)

All of these decisions offer significant analysis in their reasons and guidance for future sentences. The library also has other resources available for finding sentencing decisions, in print and e-book format. Please don’t hesitate to contact us for help crafting your submissions on sentencing.

Gladue Reports Database Update

Way back in May 2018, I wrote about a project out of Saskatchewan to create a database for researching Gladue principles. This resource was going to operate under a subscription model, but has just received funding to make it open access. Content is from Saskatchewan, however, researchers in other jurisdictions will likely find it a useful starting point. It would be even better if other jurisdictions found a way to add on to it.

For now, congratulations to the Law Society of Saskatchewan, Legal Aid Saskatchewan and the Ministry of Corrections and Policing for having the foresight to develop and fund this resource.

H/t to The Lawyers’ Daily: Creators of novel Gladue database hope it becomes widely used after free access

Decision of the Week: Sexual Offences Sentencing

The following decision was granted leave to appeal to the Supreme Court of Canada: R. v. Friesen, 2018 MBCA 69. As summarized in Supreme Advocacy Letter #11 (2019):

Mr. Friesen met the mother through an online dating website. The mother brought Mr. Friesen to her home. On the date of the offence, the mother’s children were sleeping and were being cared for by the mother’s friend in the mother’s house. Mr. Friesen asked the mother to bring the child into the bedroom. The mother’s friend was awoken by the child’s screams, entered the bedroom and took the child out of the bedroom. Mr. Friesen demanded the mother retrieve the child and threatened her if she did not comply with his demand.  Mr. Friesen entered guilty pleas to sexual interference and attempted extortion. The sentencing judge imposed a sentence of six years’ incarceration concurrent on both charges. The C.A. granted leave to appeal sentence. The C.A. allowed the appeal and reduced the sentence from six to four and one-half years’ incarceration for the sexual interference conviction and reduced the sentence from six years to 18 months incarceration concurrent for the attempted extortion conviction. “The motion for an extension of time to serve and file the response to the application for leave to appeal is granted. The application for leave to appeal…is granted.”

Decision of the Week

This week’s decision is the first reported provincial court decision for 2019: R. v. Osnach, 2019 MBPC 1.


[1]              …  The main issue to be addressed is whether the mandatory minimum one-year driving prohibition imposed under s. 259(1) of the Criminal Code may be reduced on account of time spent under a three-month provincial administrative suspension.

The issue of whether the three month administrative suspension could be included in the one year driving prohibition was likened to credit for time in custody. Choy, P.J. did not agree.


[17]         I also do not accept the defence submission that the situation is analogous to credit for time in custody.  In that regard, the case R. v. Wust, [2000] 1 S.C.R. 455 was relied upon by defence.  I find that the leap from pre-sentence custody credit to credit for provincially mandated driving suspension cannot be made.  Depriving a person of their liberty is not the same as a person being inconvenienced by the inability to operate a motor vehicle.  Liberty is a fundamental individual right, whereas driving is a privilege which is earned.