Reconciliation and Sentencing Law: Spending some time with Sharma?

The Supreme Court of Canada released its reasons in R v. Sharma on November 3, 2022.

Here is the case history provided by the SCC:

In 2016, the respondent Ms. Sharma, an Indigenous woman, pled guilty to importing two kilograms of cocaine, contrary to s. 6(1) of the Controlled Drugs and Substances Act (“CDSA”). Ms. Sharma sought a conditional sentence of imprisonment, and challenged the constitutional validity of the two-year mandatory minimum sentence under s. 6(3)(a.1) of the CDSA and of ss. 742.1(b) and 742.1(c) of the Criminal Code, which make conditional sentences unavailable in certain situations. The sentencing judge found that the two-year mandatory minimum sentence under s. 6(3)(a.1) of the CDSA violated s. 12 of the Charter and could not be saved under s. 1. The judge therefore declined to address the constitutional challenge to s. 742.1(b), and he dismissed the s. 15 challenge to s. 742.1(c). Ms. Sharma was sentenced to 18 months’ imprisonment, less one month for pre-sentence custody and other factors.

Ms. Sharma appealed and, with the Crown’s consent, also brought a constitutional challenge to s. 742.1(e)(ii) of the Criminal Code. A majority of the Court of Appeal allowed the appeal. Sections 742.1(c) and 742.1(e)(ii) were found to infringe both ss. 7 and 15(1) of the Charter, and the infringement could not be justified under s. 1. The majority held that the appropriate sentence would have been a conditional sentence of 24 months less one day, but as the custodial sentence had already been completed, a sentence of time served was substituted. Miller J.A., dissenting, would have dismissed the appeal and upheld the sentence of imprisonment.

The outcome of the case is that the majority (Brown, Rowe, Wagner, Moldaver, and Coté) found there to be no violation of either s.7 or s.15(1) of the Charter. The dissenters (Karakatsanis, Kasirer, Martin and Jamal) came to the opposite position, finding violations of both.

The case is likely to generate lots of discussion, given the quite stark differences in how the majority and dissent (5-4 split) understood the challenges in front of them. Perhaps this will come as no surprise, given the number of interventions in the case (here is a link to the 23 facta filed in the case – Facta on Appeal). There is some powerful written and oral advoacy in this case, and there is much in here that could be profitably drawn into the law school classroom. Here is a quick link to the webcast of the case: Webcast of hearing in Sharma)

On November 7, there was a “Pop-Up Conversation on Sharma” at UVic law, with Professors David Milward, John Borrows, Patricia Cochran, Patricia Barkaskas and Rebecca Johnson, and Sentator Kim Pate and UVic law student Michael Davidson (2L in the JD/JID program). The point was to provide an introduction to the case, followed by a series of short (3-5 minute) interventions, attempting to start a conversation about the case, and about how to understand next steps forward in terms of addressing the crisis of over-incarceration. [On that front, here is a news item on the report of Correctional Investigator Ivan Zinger, released mere days before Sharma.]

For the purposes of #ReconciliationSyllabus, we gather here some of the resources from that event, to share with folks who are trying to figure out how to be responsive to the TRC Calls to Action in engaging with both the majority and dissent in this case.

First, here is a link to an audio recording of the Pop-up-Panel.

Rebecca Johnson (Introduction to the Case)00:00
David Milward09:15
John Borrows12:20
Patricia Cochran18:00
Kim Pate22:45
Patricia Barkaskas28:15
Michael Davidson 36:30
Questions & Conversation39:15

Second, here is a link to the handout prepared for the conversation.

Third, here is a link to the background powerpoint prepared by Rebecca Johnson for use in the Criminal Law classroom [it is open access, so feel free to use, modify, change, as you will…. and to disagree!]

The audience also took up the relationships between litigating and legislating for change, pointing to Bill C-5, which attempts to reduce the number of ‘excluded offences’ in order to create the discretion needed to build sentencing practices that respond to the TRC calls to incorporate Indigenous centred approaches to justice.

There is so much to be said about this case, particularly the majority and dissent engage in quite different ways with the challenges ahead of responding to and reversing the complete crisis of Indigenous over-incarceration in Canada, and particularly the over-incarcernation of Indigenous Women.

We know there are many resources out there to help us, in our law schools, engage with the challenges ahead. We would love for folks to attach to this post any additional resources (articles, links, teaching materials, ideas) in order to begin changing either the discourse, or the legislative framework or the shape of our conversations (both in our classrooms, and in the broader public).

Finding Resources Close to my Shuswap (Secwepmc) Home

By Rebecca Johnson

TRC Recommendation #28 says:

We call upon law schools in Canada to require all law students to take a course in Aboriginal people and the law, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.

I have been thinking about how to develop curriculum that addresThe view from my mom's Shuswap homeses this recommendation, and in doing so, have been thinking about how to make this recommendation more ‘personal’.  That is, I have been thinking about ways the recommendation could be rooted in my own sense of “home”.  What would it mean to find resources that speak to my own embedding, as a Settler-Canadian, in these histories?  What would it mean to see MYSELF in this history?  And so, I started to think about resources that are linked to my ‘heart-home’:  the Shuswap Lake.

Here are some pieces I have been thinking might work together as a pod of resources, one which is located in BC (given my location here), and which is located in the Shuswap (Secwepmc territory)  where I spend my summers.

I thought it a good place to start because I have spent so much of my life there, I deeply love the land there, and grew up (like many Settler Canadians) knowing NOTHING of the real history of the place, or of the law of the Secwepmc, or of this history of Setter/Secwepmc interactions.

Partly, I wonder if one way for many of us in law schools to start doing this work is to start it from the place that we are AT.  That is, to try to gather together the resources that might enable us to really teach our students in the spaces that they learn… so they begin to see how the various stories of law are all around them in a very concrete way.

I do not, of course, think that is the ONLY way to approach the work, but I do wonder about the ways the work might feel if we take seriously the ways in which we too (i am presuming a settler ‘we’ here, but am open to conversation on that point) are living on particular places, and might benefit from taking seriously the histories and resources of those places.

And so, here is a first intervention, and I REALLY welcome ideas and feedback about resources, stories, documents that might work together to think about law school curricula linked to Secwepmc territory.

so… a starting place might be basic information about the territory, told from the perspective of current indigenous political communities.  As a starting place, it might involve some attention to using the names indigneous communities use for themselves.  So… if not ‘drop’ the Shuswap, then at least think about also usins Secwepmc (or at least beginning the discussions of naming).  And so, maybe begin with some links to how the communities describe themselves and their lands.  Maybe a link like this?

Might be useful to start with questions about land and governance.

  • Memorial, to Sir Wilfred Laurier, From the Chiefs of the Shuswap, Okanagan and Couteau Tribes of British Columbia. Presented at Kamloops, B.C. August 25, 1910

Then, what about histories of residential schools?  In this case, we have a wonderful memorie written by a student who attended the Williams Lake residential school.

  • They-called-me-number-one-250x386 Bev Sellars, They Called Me Number One.

This book came highly recommended by friends.  I just finished it last weekend.  So much in there to talk about and discuss.  Here is a link to a short review of it:

The book is full of material that could link in easily to any number of courses and topics.  It deals with language, parenting, land, education, torts, crime, politics, policing, governance, religion, hope, despair, etc.

There are some very obvious links to mainstream curriculum.  For example, the Principal at the Williams Lake Residential School was Archbishop O’Connor (familiar in the criminal law curriculum with respect to the right of an accused to have access to the private counselling records of a ‘complainant’ in a sexual assault case).   I found it interesting to re-think/teach the story of O’Connor against the context of the work done in Bev Sellar’s memoire.

  •  R v. O’Connor

Another recourse to link in could be this:

  • Report on the Caribou-Chilcotin Justice Inquiry 1993

Here, there is a chance to look at the Report of an Inquiry, and in this case, a fairly short report.  Nicely, Bev Sellars was involved in the Inquiry, so her memoire provides an occasion to ask questions about what does or does not end up in the Report of the Inquiry itself.

  • Links to the present might include exploration of the 2010 BCLA intervention in on-going conflict between RCMP and the Williams Lake Community (which gives an opportunity to explore how contemporary moments of conflict find roots in the deeper histories)

Well… this is just a start.  Would love to hear ideas from others about how these pieces might be pulled together (or substituted with others) in the interests of moving towards TRC2015 Recommendation #28