Reader in International Human Rights Law
University of Birmingham
Which context matters in determining a breach of the right to equality? The aims of the state in punishing crime or the painful impact of colonialism on the lives of Indigenous women? The Canadian Supreme Court was divided on this question when evaluating whether removing the possibility of conditional sentences for certain crimes was unconstitutionally discriminatory on the basis of race. The majority decision myopically focuses on the legislative context in restricting sentencing options and marks a dangerous turn in Canadian equality law.
In R v Sharma, Sharma was convicted of importing drugs. She is an Indigenous single mother, who lives in poverty and suffers inter-generational trauma from residential schools. In recognition of the over-representation of Indigenous people in the criminal justice system, s718.2 of the Criminal Code requires judges to consider all available sanctions other than imprisonment when sentencing Indigenous offenders. However, s 742.1 pulls in the opposite direction. It prohibits the use of conditional sentences in a range of circumstances. Sharma argued restricting the use of conditional sentences violated s15, the equality guarantee in the Canadian Charter, as the prohibition disproportionately impacted Indigenous people.
The equality law framework in Canada requires the claimant to demonstrate that:
- the law, on its face or on impact, draws a distinction on the basis of race; and
- the distinction reinforces, perpetuate, or exacerbates disadvantage.
The majority decision determined that she has not meet the first step. There are many worrying aspects in Sharma on proving indirect discrimination, but this post focuses on the second step of the equality framework. Pinpointing ‘what does it mean to reinforce, perpetuate or exacerbate disadvantage?’ has proven challenging for the Court. While there is agreement that determining the law’s relationship to disadvantage is a contextual assessment, there are deep fissures on identifying the relevant context.
The Majority: The State’s Good Purposes
The aims of the state in restricting conditional sentences, according to the majority, are the necessary, and seemingly only, context to determine if the law breaches the right to equality. Whether a distinction contributes to racial disadvantage entails examining, inter alia, the objects of the scheme and the policy goals to be achieved .
The heart of the equality analysis becomes an assessment of the state’s purposes. Implicit in this reasoning is that when a state has a salutary or ameliorative purpose there is no breach of the right to equality. A law cannot perpetuate disadvantage when the law has a salutary purpose. In Sharma, the reasons the goals of the carceral state in limiting conditional sentences would be dispositive of whether the law reinforced disadvantage against Indigenous peoples. Sharma lays the foundation for a narrow understanding of equality, and it would be consistent with Justices Brown and Rowe’s past jurisprudence.
Drawing such a tight relationship between the goals of the state and disadvantage will be devastating for the future of equality rights in Canada. The concept of equality under the majority’s reasoning is poised to become meaningless, as the aims of the law are seen as the only relevant context. Moreover, the Court is inappropriately collapsing the right to equality into an assessment of whether the state would be justified in pursing a law that perpetuates inequality. The analysis of the state’s purpose is the starting point for evaluating whether it is permissible to limit equality rights under s1 of the Charter. Identifying the state’s goals is analytically irrelevant for determining whether the law breaches Indigenous peoples’ right to substantive equality.
The Dissent: Centring Indigenous Women
Zoning in on the legislative context pushes any understanding of the lives of Indigenous women out of the s15 analytical frame. Justice Karakatsanis in her dissent, correctly focuses not on the goals of the state rather on the lives of Indigenous women. Adopting an intersectional lens, she centres the context on the history and contemporary oppression of Indigenous women.
Law and policies have created multiple, compounding, and intersectional forms of discrimination against Indigenous women. The residential school system, the overrepresentation of Indigenous children in state care, the continued disenfranchisement of the Indigenous women under The Indian Act, forced sterilization, negative stereotypes and ongoing epidemic of violence all grossly undermine the equality of Indigenous women.
This context is highly relevant to understanding why the prohibition on conditional sentences reinforces disadvantage against Indigenous women. Restricting conditional sentences forces judges to place Indigenous women, who are overrepresented in prison due to the context identified above, in prison when their ‘background conditions make them especially unfit’ for a custodial sentence . Limiting conditional sentences for Indigenous people also undermines Indigenous visions of justice . Requiring Indigenous offenders to serve custodial sentences ‘perpetuates overrepresentation…cultural loss, dislocation and community fragmentation.’ . In Sharma, substantive equality demands a sentencing regime that is cognizant of Indigenous heritage and connection.
Merely examining the legislative context under the second stage of the equality frameworks reveals nothing regarding the legacies and patterns of systemic disadvantage nor does it grasp how those legacies and patterns interact with the impugned law. By elevating the state’s goals under s15, the majority preserved a status quo that has perpetuated substantive inequalities against Indigenous women.