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Judge strikes mandatory minimum sentence in drug case involving Indigenous woman

Last Updated Feb 22, 2018 at 1:00 pm EDT

An Ontario judge has struck down a mandatory minimum sentence for a drug smuggling offence, ruling that two years in prison would be a “grossly disproportionate” punishment for an Indigenous single mother who ran away from home at age 13.

Advocates welcoming the ruling say the case highlights the need to strike down dozens of mandatory minimums that remain in place despite contradicting Supreme Court guidelines for sentencing Indigenous offenders.

Cheyenne Sharma, a 23-year-old single mother living in poverty at the time of her crime, was sentenced to 17 months in jail after pleading guilty to bringing under two kilograms of cocaine into Canada from Surinam in the lining of her suitcase.

The mandatory minimum penalty of two years in prison would have violated Canada’s Charter of Rights and Freedoms, Justice Casey Hill determined.

“Reasonable and right-thinking Canadians fully informed of the offender’s particular circumstances and the nature of the sentencing function including the unique history of the Aboriginal peoples … (would) conclude that such a sentence would outrage standards of decency,” Hill wrote in his decision.

The ruling means people convicted of importing more than one kilogram of a “Schedule I” drug — including cocaine and heroin — into Canada will no longer face the mandatory minimum sentence, said Jonathan Rudin, program director for Aboriginal Legal Services, which intervened on Sharma’s behalf in the case.

But there are still many other mandatory minimum punishments in Canadian law contributing to the overrepresentation of Indigenous people in prisons, Rudin said, calling on the federal government to act on the issue.

“The answer has to be that the federal government do what they said they were going to do and legislate away these mandatory minimums or legislate in an escape clause (for judges),” he said.

Justice Minister Jody Wilson-Raybould said the prime minister has called for a “broad review” of changes to the criminal justice system that have taken place over the past decade, including mandatory minimums.

“The examination of mandatory minimum penalties is included in this review (and) that work is ongoing,” she said in a statement. “The courts have made it clear that mandatory minimum penalties present serious challenges from a constitutional perspective.”

The Supreme Court of Canada has ruled that when sentencing Indigenous offenders, judges must take into account that person’s individual circumstances and how they may have been affected by societal issues such as racism, poverty, substance abuse and “family or community breakdown.”

These guidelines, referred to in law as the Gladue principles, force judges to recognize that Indigenous people do not always have the same access to justice as non-Indigenous Canadians, lawyer Josephine De Whytall said.

In sentencing Sharma, Hill noted that her maternal grandmother was a survivor of the residential school system who became pregnant at age 15 and was involved in bootlegging and prostitution.

When Sharma was five, her father was deported to Trinidad, where he was convicted of murder and sentenced to 12 years in prison, Hill wrote in his decision.

Sharma ran away from home in her early teens and began drinking every day, Hill wrote. She said she was sexually assaulted as a teen, was working as a prostitute by age 15 and gave birth to her daughter at age 17, he wrote. Sharma has attempted suicide more than once, Hill wrote.

Sharma was two months behind on rent and was facing eviction when the man she was dating said she could make $20,000 by picking up a suitcase in Surinam, Hill wrote. She agreed, afraid she and her two-year-old daughter would otherwise end up homeless, the judge noted.

Normally, mandatory minimums don’t allow a judge any leeway to take that type of information into consideration, De Whytall said.

“Rather, it’s an arbitrary recognition that anybody who does this (crime) must get this sentence, and that just doesn’t work for Indigenous people because there are so many complex societal issues at play,” she said.

Mandatory sentences can only be eliminated on a case-by-case basis, through a long and costly legal process, Rudin said, noting that judges can only strike them down when a defendant successfully makes a charter challenge arguing the sentence would constitute “cruel and unusual punishment.”

“The reality is that mandatory minimums have been falling fairly regularly across the country when they have been challenged,” he said. “But we can’t solve this by taking on each mandatory minimum one at a time.”

Aboriginal Legal Services helped Sharma’s defence launch its Charter challenge, calling York University sociologist Carmela Murdocca as an expert witness to testify about the historical challenges faced by Indigenous people and the vulnerability and financial hardship experienced by many racialized women convicted of drug crimes.

The entire case took over two years.

Not all offenders can afford the time and resources these challenges require, Rudin said. In some cases, the time it would take to go through the process of challenging the minimum sentence is longer than the sentence itself, he said.

There were 29 offences carrying a mandatory minimum sentence of imprisonment as of 2015, according to the Department of Justice, and several more that carry mandatory minimum punishments that do not include prison time.