Abstract
Sections 7 and 15 of the Canadian Charter of Rights and Freedoms both play a critical role in protecting members of disadvantaged groups from the harms of state action. In R. v. Sharma, released in November 2022, a 5-4 majority of the Supreme Court of Canada dismissed arguments under both sections in a claim that raised the impact on Indigenous offenders of a 2012 law that restricted the availability of conditional sentences. Our focus in this paper is on the doctrinal implications of the majority and dissenting opinions in Sharma for future section 15 and section 7 claims. We discuss four key section 15 issues raised by the majority and dissent’s differing approaches: (1) the role of substantive equality as the purpose of section 15; (2) the test for section 15 breaches, including three purported “clarifications” made by the majority related to causation, context and positive obligations; (3) the application of the section 15 test to adverse effects discrimination claims that are quantitative and qualitative; and (4) grounds and intersectionality. We also examine several issues that arose with respect to the section 7 claim in Sharma: (1) the role of various principles of fundamental justice; (2) the characterization of the purpose of the impugned law when applying those principles; and (3) the majority’s failure to consider the impact of the impugned law on Cheyenne Sharma. We conclude by exploring the interplay between sections 15 and 7 and the important issues that interplay raises for claims going forward.
Citation Information
Watson Hamilton, Jonnette and Koshan, Jennifer.
"Sharma: The Erasure of Both Group-Based Disadvantage and Individual Impact."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
115.
(2024).
DOI: https://doi.org/10.60082/2563-8505.1448
https://digitalcommons.osgoode.yorku.ca/sclr/vol115/iss1/6
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