R. v. Sharma: Reckoning with Destabilizing Truths in Constitutional Equality Adjudication

Authors

Debra Parkes, Peter A. Allard School of Law, University of British Columbia
Sonia Lawrence, Osgoode Hall Law School of York University

Abstract

The Supreme Court of Canada’s 2022 decision in R. v. Sharma provides a window on contemporary but divergent judicial approaches to systemic racism in the criminal legal system and how these inform equality challenges based on race. The Sharma majority follows a trend identified by Efrat Arbel in recognizing the “crisis” of Indigenous mass incarceration using language which diffuses the causes of the crisis and does not generate urgent redress. However, in some cases, including in the Sharma dissent, recognition by judges can be an acceptance of accountability as part of the system which has produced these effects. We then argue that claims like Sharma’s can be profoundly destabilizing in a variety of ways — these claims implicate judges as key players in the criminal legal system, they challenge doctrinal and philosophical commitments to individual culpability and blame, and they also create anxiety about the appropriate institutional roles of courts and judges. The Sharma dissent might also, in a contradictory way, restabilize by bringing some radical claims about the criminal legal systems into the embrace of doctrine. We ask how the courts have reckoned with the reality of systemic racism in the criminal legal system and Indigenous mass incarceration as equality matters, noting that section 15 has been avoided in some cases and evaded through evidentiary issues in others. However, we suggest that in the contemporary context, to completely avoid the issue might cause legitimacy problems for courts. While litigation and courts are not likely to be the vehicle for eliminating either Indigenous mass incarceration or systemic racism in our criminal legal system, they can be part of wider shifts in discourse and policy which show greater promise for lasting change.

Citation Information

Parkes, Debra and Lawrence, Sonia. "R. v. Sharma: Reckoning with Destabilizing Truths in Constitutional Equality Adjudication." The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 115. (2024).
DOI: https://doi.org/10.60082/2563-8505.1449
https://digitalcommons.osgoode.yorku.ca/sclr/vol115/iss1/7

Creative Commons License

This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

References

1 We use the term "criminal legal system" or "criminal punishment system" rather than "criminal justice system" to challenge the assumption that Canadian criminal law, procedures and punishment actually delivers justice. See, generally, Alec Karakatsanis, Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System (United States: The New Press, 2019). For a thoughtful analysis of the turn away from "criminal justice system" see Benjamin Levin, "After the Criminal Justice System" (March 7, 2023), Washington Law Review, Forthcoming, University of Colorado Law Legal Studies Research Paper No. 23-6, Available at SSRN: .

2 Special Investigations Unit, Stephen Lewis, "Report on the advisor on race relations to the Premier of Ontario, Bob Rae" (June 9, 1992), online: https://www.siu.on.ca/pdfs/report_of_the_advisor_on_race_relations_to_the_premier_of_ontario_bob_rae.pdf; Aboriginal Justice Implementation Commission, "Report of the Aboriginal Justice Inquiry of Manitoba/A.C. Hamilton, commissioner, C.M. Sinclair, commissioner" (Winnipeg: Public Inquiry into the Administration of Justice and Aboriginal People, 1991); Government of Canada, "The Report of the Royal Commission on Aboriginal Peoples/Mary C. Hurley & Jill Wherrett" (Ottawa: Parliamentary Research Branch, 1999), online: https://publications.gc.ca/collections/Collection-R/LoPBdP/EB-e/prb9924-e.pdf; Correctional Service of Canada, Canadian Association of Elizabeth Fry Societies, "Creating Choices: The Report of the Task Force on Federally Sentenced Women" (Ottawa: 1990), online: https://www.csc-scc.gc.ca/women/092/002002-0001-en.pdf.

3 R. v. Parks, [1993] O.J. No. 2157 at para. 369, 84 C.C.C. (3d) 353 (Ont. C.A.).

4 R. v. Williams, [1998] S.C.J. No. 49, [1998] 1 S.C.R. 1128 (S.C.C.). https://doi.org/10.1016/S0013-7952(98)00013-1

5 R. v. Gladue, [1999] S.C.J. No. 19 at para. 65, [1999] 1 S.C.R. 688 (S.C.C.).

6 R. v. Parks, [1993] O.J. No. 2157, 84 C.C.C. (3d) 353 (Ont. C.A.); R. v. Williams, [1998] S.C.J. No 49, [1998] 1 S.C.R. 1128 (S.C.C.); R. v. Spence, [2005] S.C.J. No. 74, [2005] 3 S.C.R. 458, (S.C.C.); R. v. Chouhan, [2020] S.C.J. No. 101, 2021 SCC 26 (S.C.C.).

7 R. v. Gladue, [1999] S.C.J. No. 19, [1999] 1 S.C.R. 688 (S.C.C.); R. v. Ipeelee, [2012] S.C.J. No. 13, 2012 SCC 13 (S.C.C.); R. v. Morris, [2021] O.J. No. 5108, 2021 ONCA 680 (Ont. C.A.); R. v. Anderson, [2021] N.S.J. No. 334, 2021 NSCA 62 (N.S.C.A): expanding sentencing analysis to anti-Black racism.

8 R. v. Le, [2019] S.C.J. No. 34, 2019 SCC 34, [2019] 2 S.C.R. 692 (S.C.C.) https://doi.org/10.18356/53c4139e-fr; R. v. Ahmad, [2020] S.C.J. No. 11, 2020 SCC 11, [2020] 1 S.C.R. 577 (S.C.C.).

9 David Tanovich, "The Charter of Whiteness: Twenty-Five Years of Maintaining Racial Injustice in the Canadian Criminal Justice System" (2008) 40 S.C.L.R. (2d) 655 at 657. "Racial justice has not had a chance to grow over the last 25 years because there has been a significant failure of trial and appellate lawyers to engage in race talk in the courts and a failure of the judiciary to adopt appropriate critical race standards when invited to do so." The furor surrounding a Black judge's simple acknowledgment that "police officers do overreact, particularly when they are dealing with non-white groups" - going all the way to the Supreme Court of Canada in 1997 on an allegation of bias - illustrates the extent to which white judges could (and to some extent still do) deny the existence of racism in the Canadian criminal legal system. See R. v. S. (R.D.), [1997] S.C.J. No. 84 at para. 6, [1997] 3 S.C.R. 484 (S.C.C.); and Constance Backhouse, Reckoning with Racism: Police, Judges, and the "RDS" Case (Vancouver: University of British Columbia Press, 2022).

10 We conducted a simple search of the word "racism" in the Supreme Court of Canada Lexum case database and found 40 cases in which that word appeared. Virtually all of the substantive mentions of racism (beyond the word racism appearing in a party name, for example) were found in criminal cases. There were 22 such cases, with 10 of them in the last eight years: R. v. Hills, [2023] S.C.J. No. 2, 2023 SCC 2 (S.C.C.); R. v. Sharma, [2022] S.C.J. No. 39, 2022 SCC 39 (S.C.C.) https://doi.org/10.1016/B978-0-323-99907-6.00009-8; R. v. Lafrance, [2022] S.C.J. No. 32, 2022 SCC 32 (S.C.C.) https://doi.org/10.21570/BUL-202202-7; R. v. Bissonnette, [2022] S.C.J. No. 23, 2022 SCC 23 (S.C.C.); R. v. Chouhan, [2020] S.C.J. No. 101, 2021 SCC 26 (S.C.C.); R. v. Ahmad, [2020] S.C.J. No. 11, 2020 SCC 11 (S.C.C.) https://doi.org/10.1155/2020/8885861; R. v. Le, [2019] S.C.J. No. 34, 2019 SCC 34 (S.C.C.) https://doi.org/10.18356/b43659f7-fr; R. v. Barton, [2019] S.C.J. No. 33, 2019 SCC 33 (S.C.C.) https://doi.org/10.1111/1365-2435.13435; R. v. Boutilier, [2017] S.C.J. No. 64, 2017 SCC 64 (S.C.C.) https://doi.org/10.1080/0449010X.2017.1311609; R. v. Kokopenace, [2015] S.C.J. No. 28, 2015 SCC 28 (S.C.C.). Other cases, such as Ewert v. Canada, [2018] S.C.J. No. 30, [2018] 2 S.C.R. 165 (S.C.C) did not appear in this list, but there the Court frankly acknowledged discrimination experienced by Indigenous people in federal prisons: Ewert v. Canada, [2018] S.C.J. No. 30 at para. 63, [2018] 2 S.C.R. 165 (S.C.C). Most of the earlier cases used the word "racism" to refer to individual acts, e.g., R. v. Keegstra, [1990] S.C.J. No. 13, [1990] 3 S.C.R. 697 (S.C.C.), rather than systemic or institutional racism as observed in the more recent cases.

11 Racial logics play a key role in the subordination of Indigenous peoples. See, generally, Eve Tuck & Wayne Yang, "Decolonization is not a metaphor" (2012) 1:1 Decolonization: Indigeneity, Education & Society 1; Aileen Moreton-Robinson, "Terra Nullius and the Possessive Logic of Patriarchal Whiteness: Race and Law Matters" in Mary Keyes, Changing Law: Rights, Regulation and Reconciliation (London: Routledge, 2019); Brenna Bhandar, Colonial Lives of Property: Law, Land and Racial Regimes of Ownership (Durham: Duke University Press, 2018); Sonia Lawrence, "R v Kapp" (August 2018) 30:2 C.J.W.L. 268, online: https://www.utpjournals.press/doi/abs/10.3138/cjwl.30.2.04 at 273 ("Settler colonialism racializes Indigenous peoples as a technique of dispossession. Their position as internal colonized nations, and questions of rights and sovereignty based on pre-existing legal and political orders, are effaced by this racialization. Through racialization, Indigenous peoples are linked to a diverse group of other non-white peoples within the settler state. Processes of racialization blend together pre-existing nations and this larger group of racialized peoples. Settler colonialism relies on these processes to solidify shaky claims to land and legitimate rule" (citations omitted).) At the same time, race as a ground of discrimination does not fully capture the range of colonial harms, nor the need for Indigenous laws and self-determination to ground the analysis of rights and justice claims. See, e.g., Ardith Walpetko We'dalx Walkem, Expanding Our Vision: Cultural Equality & Indigenous Peoples' Human Rights, British Columbia Human Rights Tribunal (January 15, 2020), online: http://www.bchrt.bc.ca/shareddocs/indigenous/expanding-our-vision.pdf (calling for the addition of Indigenous identity as a protected ground of discrimination in the B.C. Human Rights Code, among other fundamental reforms to human rights adjudication). See also Sébastien Grammond, "Disentangling 'Race' and Indigenous Status: The Role of Ethnicity" (2008) 33 Queen's L.J. 487 at 490.

12 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter "Charter"].

13 Jonnette Watson Hamilton & Jennifer Koshan, "Sharma: The Erasure of Both Group-Based Disadvantage and Individual Impact", in this volume.

14 See, generally, Paul Millar & Akwasi Owosu-Bempah, "Whitewashing Criminal Justice in Canada: Preventing Research through Data Suppression" (2011) 26:3 Can. J.L. & Soc. 653; and Mai Phan, "Race-based Data in the Criminal Justice System", Maytree (August 18, 2012), online: https://maytree.com/publications/race-based-data-in-the-criminal-justicesystem/. https://doi.org/10.3138/cjls.26.3.653

15 R. v. Gladue, [1999] S.C.J. No 19 at para. 64, [1999] 1 S.C.R. 688 (S.C.C.). "These findings cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it. The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system."

16 R. v. Gladue, [1999] S.C.J. No 19 at para. 58, [1999] 1 S.C.R. 688 (S.C.C.), citing Solicitor General of Canada, Consolidated Report, Towards a Just, Peaceful and Safe Society: The Corrections and Conditional Release Act - Five Years Later (1998) at 142‑155.

17 R. v. Sharma, [2022] S.C.J. No 39 at para. 124, 2022 SCC 39 (S.C.C.), citing Statistics Canada, Adult and youth correctional statistics in Canada, 2018/2019 (December 2020) at 5.

18 R. v. Sharma, [2022] S.C.J. No 39 at para. 125, 2022 SCC 39 (S.C.C.), citing Office of the Correctional Investigator, Annual Report 2020-2021 (2021) at 41.

19 Patrick White, "'Shocking and Shameful': For the first time, Indigenous women makeup half the female population in Canada's federal prisons", The Globe and Mail (May 5, 2022), online: https://www.theglobeandmail.com/canada/article-half-of-all-women-inmatesare-indigenous/.

20 Office of the Correctional Investigator Annual Report 2021-2022, online: https://ocibec.gc.ca/en/content/office-correctional-investigator-annual-report-2021-2022 at 96-97.

21 Debra Parkes, "The Punishment Agenda in the Courts" (2014) 67 S.C.L.R. (2d) 589 at 592 (Legislative changes included the passing of new and longer mandatory minimum sentences, the abolition of accelerated early parole for first-time non-violent offences, and the law at issue in Sharma, radically limiting the availability conditional sentences to be served in the community under strict conditions.)

22 For example, when questioned in Parliament about a damning report from the Office of the Correctional Investigator (ombudsperson for federal corrections) about the growing numbers of Indigenous people in federal prisons, Prime Minister Stephen Harper responded "It is important to note that prisoners are people who were found guilty of criminal acts by independent courts.": Terry Pedwell, "Canada is failing Aboriginal Peoples who wind up behind bars", The Canadian Press (March 7, 2013), online: https://kitchener.citynews.ca/2013/03/07/canada-is-failing-aboriginal-peoples-who-wind-up-behind-bars-report-says/.

23 Canada, Department of Justice Canada, Statement by Minister Lametti on Royal Assent of legislation that addresses systemic racism and discrimination in the criminal justice system (Ottawa: Department of Justice Canada, 2022) online: https://www.canada.ca/en/departmentjustice/news/2022/11/statement-by-minister-lametti-on-royal-assent-of-legislation-that-addressessystemic-racism-and-discrimination-in-the-criminal-justice-system.html. Many argue thatthe Bill is a too-modest step that will not meaningfully check the growing influx ofIndigenous and Black people into Canadian prisons. See, e.g,, Brett Forester, "Former TRCchair criticizes Liberal bill to end some mandatory minimum sentences", CBC News (October20, 2022), online: https://www.cbc.ca/news/indigenous/former-trc-chair-criticizes-liberalbill-to-end-some-mandatory-minimum-sentences-1.6623506.

24 Government of Canada, "Indigenous Justice Strategy" (last modified November 11, 2022), online: https://www.justice.gc.ca/eng/csj-sjc/ijr-dja/ijs-sja/index.html.

25 Government of Canada, "Canada's Black Justice Strategy" (last modified February 15, 2023), online: https://www.justice.gc.ca/eng/cj-jp/cbjs-scjn/index.html.

26 Bill C-48, An Act to amend the Criminal Code (bail reform), 44th Parliament, 1st session, first reading May 16, 2023, online: .

27 Efrat Arbel, "Rethinking the 'Crisis' of Indigenous Mass Imprisonment" (2020) 34:3 Can. J.L. & Soc. 437. https://doi.org/10.1017/cls.2019.37

28 R. v. Sharma, [2022] S.C.J. No. 39 at para. 3, 2022 SCC 39 (S.C.C.), per Brown and Rowe JJ.

29 R. v. Sharma, [2022] S.C.J. No. 39 at para. 3, 2022 SCC 39 (S.C.C.). "We would allow the appeal and restore the sentencing judge's order. The impugned provisions do not limit Ms. Sharma's s. 15(1) rights. While the crisis of Indigenous incarceration is undeniable, Ms. Sharma did not demonstrate that the impugned provisions created or contributed to a disproportionate impact on Indigenous offenders, relative to non‑Indigenous offenders, as she must show at the first step of the s. 15(1) analysis."

30 R. v. Sharma, [2022] S.C.J. No. 39 at paras. 62-65, 2022 SCC 39 (S.C.C.), per Brown and Rowe JJ.

31 R. v. Sharma, [2022] S.C.J. No 39 at para. 142, 2022 SCC 39 (S.C.C.). "In 1999, this Court called the situation a 'crisis in the Canadian criminal justice system' (Gladue at para. 64). Thirteen years later, citing Professor Rudin, it asked: 'If Aboriginal overrepresentation was a crisis in 1999, what term can be applied to the situation today?' (Ipeelee at para. 62, citing J. Rudin, "Addressing Aboriginal Overrepresentation Post‑Gladue: A Realistic Assessment of How Social Change Occurs" (2009) 54 Crim. L.Q. 447, at p. 452). Words failed then, and they fail now. The time for mere concern has long since passed. Put simply: we must do better."

32 Efrat Arbel, "Rethinking the 'Crisis' of Indigenous Mass Imprisonment" (2020) 34:3 Can. J.L. & Soc. 437 at 452 ("On a rhetorical level, the language of 'crisis' is both inappropriate and misleading, in that crises, by definition, do not persist ... Common to these definitions is some measure of transience, and a tipping point. In the case of Indigenous mass imprisonment, neither holds true. Indigenous people have been imprisoned in mass numbers for decades, long before Gladue. The problem has not reached its highest point, and shows no signs of decisive change, turning point, culmination, or juncture ... The language of 'crisis' suggests that Indigenous mass imprisonment is somehow exceptional or temporary, as crises are. Whereas in fact, like colonialism, Indigenous mass imprisonment is embedded in the Canadian legal system.") https://doi.org/10.1017/cls.2019.37

33 See, e.g., Efrat Arbel, "Rethinking the 'Crisis' of Indigenous Mass Imprisonment" (2020) 34:3 Can. J.L. & Soc. 437 https://doi.org/10.1017/cls.2019.37; Vicki Chartrand, "Unsettled Times: Indigenous Incarceration and the Links between Colonialism and the Penitentiary in Canada" (2019) 61:3 Can. J. Criminol. Crim. Justice 67. In the Australian context, see Andrew Leigh, "The Second Convict Age: Explaining the Return of Mass Imprisonment in Australia" (2020) CESifo Working Paper No. 8163, online at SSRN: https://ssrn.com/abstract=3555590.

34 Robert Nichols, "The Colonialism of Incarceration" (2014) 17:2 Rad. Phil. Rev. 435 at 437. Nichols argues that critiques of mass incarceration have "insufficiently attended to the centrality of colonialism to the origins, scope, scale, and legitimation techniques of carceral power in North America". Cited in Efrat Arbel, "Rethinking the 'Crisis' of Indigenous Mass Imprisonment" (2020) 34:3 Can. J.L. & Soc. 437 at 453. See also Vicki Chartrand, "Unsettled Times: Indigenous Incarceration and the Links between Colonialism and the Penitentiary in Canada" (2019) 61:3 Can. J. Criminol. Crim. Justice 67.

35 Jonnette Watson Hamilton & Jennifer Koshan, "Sharma: The Erasure of Both Group-Based Disadvantage and Individual Impact", in this volume.

36 Ezra Rosser, "Destabilizing Property" (2015) 48 U. Conn. L. Rev. 397 at 404.

37 Robert Cover, "Foreword: Nomos and Narrative" (1983) 97 Harv. L. Rev. 4.

38 Robert Cover, "Violence and the Word" (1986) 95 Yale. L.J. 1601. https://doi.org/10.2307/796468

39 In Robert Cover, "Violence and the Word" (1986) 95 Yale. L.J. 1601, Cover insists on recognition of the violence that seemingly bloodless acts of legal interpretation work and rely on (". . . the relationship between legal interpretation and the infliction of pain remains operative even in the most routine of legal acts. The act of sentencing a convicted defendant is among these most routine of acts performed by judge" (at 1607)).

40 In the complex and rich "Foreword: Nomos and Narrative" (1983) 97 Harv. L. Rev. 4, Cover considers judicial acts of constitutional interpretations as acts of jurisgenesis which must also be jurispathic - legal meanings must be destroyed if others are to be raised up (at 39).

41 See, e.g., Kallie S. Klein & Susan R. Klein, "A Racially Biased Obstacle Course: Apprendi Transformed the Federal Sentencing Guidelines into a Series of Judicial Obstacles; Can Shame Reduce the Racial Disparities?" (2021) 99:5 N.C. L. Rev. 1391, online: https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=6833&context=nclr. (This article proposes the possibility of using transparency to shame judges into ending racial disparities in sentencing.) As suggested earlier by our use of the phrase "hard time", there are many ways that punishments increase or decrease post-sentence and statistics show Indigenous people disproportionately experience these harms.

42 R. v. Gladue, [1999] S.C.J. No. 19, [1999] 1 S.C.R. 688 (S.C.C.). https://doi.org/10.1097/00004694-199909000-00027

43 R. v. Ipeelee, [2012] S.C.J. No. 13, 2012 SCC 13 (S.C.C.).

44 R.S.C. 1985, c. C-46.

45 R. v. Morris, [2021] O.J. No. 5108, 2021 ONCA 680 (Ont. C.A.).

46 R. v. Anderson, [2021] N.S.J. No. 334, 2021 NSCA 62 (N.S.C.A.).

47 R. v. Ipeelee, [2012] S.C.J. No. 13 at paras. 73-74, 2012 SCC 13 (S.C.C.), per LeBel J. https://doi.org/10.1109/MMM.2012.2191742

48 R. v. Gladue, [1999] S.C.J. No. 19 at para. 65, [1999] 1 S.C.R. 688 (S.C.C.), per Cory J.

49 R. v. Ipeelee, [2012] S.C.J. No. 13 at para. 67, 2012 SCC 13 (S.C.C.), per LeBel J.

50 See Marie Minakis, "Recognizing State Blame in Sentencing: A Communicative and Relational Framework" (2022) 81:2 Cambridge L.J. 294 (arguing that taking account of (partial) state responsibility in sentencing is consistent with communicative theories of punishment that include a responsive understanding of censure and a relational account of responsibility). See also Sarah Jane Nussbaum, "Judicial Depictions of Responsibility and Risk: The Erasure of State Accountability in Canadian Sentencing Judgments Involving Indigenous People" (Ph.D. Dissertation, York University, 2021), online: https://yorkspace.library.yorku.ca/xmlui/bitstream/handle/10315/39157/Nussbaum_Sarah_J_2021_PhD.pdf?sequence=2&isAllowed=y, pointing to the problematic erasure in most sentencing decisions of the role of the state in the criminalization of Indigenous people and in the construction of Indigenous people as "risky". Like Minakis, Nussbaum draws on relational theory to argue for allocating responsibility to the state as part of sentencing Indigenous people and goes further, calling for decarceral approaches rooted in greater recognition of state blame for the criminalization of Indigenous people. https://doi.org/10.1017/S0008197322000198

51 Sarah Jane Nussbaum, "Judicial Depictions of Responsibility and Risk: The Erasure of State Accountability in Canadian Sentencing Judgments Involving Indigenous People" (Ph.D. Dissertation, York University, 2021), online: https://yorkspace.library.yorku.ca/xmlui/bitstream/handle/10315/39157/Nussbaum_Sarah_J_2021_PhD.pdf?sequence=2&isAllowed=y. See also Carmela Murdocca, "Ethics of Accountability: Gladue, Race, and the Limits of Reparative Justice" (2018) 30:3 C.J.W.L. 522. https://doi.org/10.3138/cjwl.30.3.008

52 Carmela Murdocca, "Ethics of Accountability: Gladue, Race, and the Limits of Reparative Justice" (2018) 30:3 C.J.W.L. 522 at 526. Murdocca draws on Sherene Razack's ethics of accountability, further arguing that it "helps to reveal how, despite good intentions, restorative approaches in sentencing fall short when operationalized through discourses of racial/human difference" (at 526). https://doi.org/10.3138/cjwl.30.3.008

53 See, e.g., Sarah Jane Nussbaum, "Judicial Depictions of Responsibility and Risk: The Erasure of State Accountability in Canadian Sentencing Judgments Involving Indigenous People" (Ph.D. Dissertation, York University, 2021); Kelly Hannah-Moffat & Paula Maurutto, "Re-Contextualizing Pre-Sentence Reports: Risk and Race" (2010) 12:3 Punishment & Soc. 262; David Milward & Debra Parkes, "Colonialism, Systemic Discrimination, and the Crisis of Indigenous Over-incarceration: Challenges of Reforming the Sentencing Process" in Elizabeth Comack, ed., Locating Law: race/class/gender/sexuality connections, 3d ed. (Halifax: Fernwood, 2020). https://doi.org/10.1177/1462474510369442

54 See, e.g., Patricia Monture, "Standing Against Canadian Law: Naming Omissions of Race, Culture, and Gender" in Elizabeth Comack, ed., Locating Law: race/class/gender/ sexuality connections, 3d ed. (Halifax: Fernwood, 2020); Carmela Murdocca, To Right Historical Wrongs: Race, Gender, and Sentencing in Canada (Vancouver: University of British Columbia Press, 2013); Jillian Rogin, "Gladue and Bail: the Pre-Trial Sentencing of Aboriginal People in Canada" (2017) 95:2 Can. Bar Rev. 325.

55 It is perhaps not surprising that Derrick J.A. might be on the forefront of judicial recognition of anti-Black racism in this context. Before being appointed to the bench, Derrick J.A. was involved in racial justice advocacy. Together with Rocky Jones, Black lawyer and activist, she was famously sued for defamation by a Halifax police officer for saying in a press conference that three African Nova Scotian girls (suspects in relation to a petty theft) would not have been strip searched had they been white. The jury's finding of liability and the $240,000 damages award were overturned by the Nova Scotia Court of Appeal: Campbell v. Jones, [2002] N.S.J. No. 450, 2002 NSCA 128 (N.S.C.A.).

56 R. v. Anderson, [2021] N.S.J. No. 334 at para. 159, 2021 NSCA 62 (N.S.C.A.).

57 R. v. Morris, [2021] O.J. No. 5108 at para. 149, 2021 ONCA 680 (Ont. C.A.).

58 The choice of words is worth noting: "Although we reject the claim that societal complicity in anti-Black racism diminishes the need to denounce and deter serious criminal conduct, we accept wholeheartedly that sentencing judges must acknowledge societal complicity in systemic racism and be alert to the possibility that the sentencing process itself may foster that complicity. A frank acknowledgement of the existence of, and harm caused by, systemic anti-Black racism, combined with a careful consideration of the kind of evidence adduced in this case, will go some distance toward dissociating the sentencing process from society's complicity in anti-Black racism." R. v. Morris, [2021] O.J. No. 5108 at para. 86, 2021 ONCA 680 (Ont. C.A.) (emphasis added).

59 R. v. Anderson, [2021] N.S.J. No. 334 at para. 146, 2021 NSCA 62 (N.S.C.A.) (footnote omitted): "The moral culpability of an African Nova Scotian offender has to be assessed in the context of historic factors and systemic racism, as was done in this case. The African Nova Scotian offender's background and social context may have a mitigating effect on moral blameworthiness. In Ipeelee, the Supreme Court of Canada recognized this principle in relation to Indigenous offenders. It should be applied in sentencing African Nova Scotians. Sentencing judges should take into account the impact that social and economic deprivation, historical disadvantage, diminished and non-existent opportunities, and restricted options may have had on the offender's moral responsibility."

60 Efrat Arbel, "Rethinking the 'Crisis' of Indigenous Mass Imprisonment" (2020) 34:3 Can. J.L. & Soc. 437 at 439. https://doi.org/10.1017/cls.2019.37

61 Nicola Lacey, "Criminal Justice and Social (In)Justice", London School of Economics Law School and International Inequalities Institute, Working Paper 84 (October 2022), online: https://eprints.lse.ac.uk/116949/1/Lacey_criminal_justice.pdf.

62 Sauvé v. Canada (Chief Electoral Offıcer), [2002] S.C.J. No. 66, 2002 SCC 68 (S.C.C.) [hereinafter "Sauvé"].

63 Debra Parkes, "A Prisoners' Charter? Reflections on Prisoner Litigation Under the Canadian Charter of Rights and Freedoms" (2007) 40:2 U.B.C. L. Rev. 629 at 629, 640-641.

64 Sauvé v. Canada (Chief Electoral Offıcer), [2002] S.C.J. No. 66 at paras. 195, 197, 2002 SCC 68 (S.C.C.).

65 See, e.g., R. v. Safarzadeh‑Markhali, [2016] S.C.J. No. 14, [2016] 1 S.C.R. 180 (S.C.C.) (certain limits on the availability of pre-trial credit in sentencing violated s. 7). Many mandatory minimum sentences have been found to violate s. 12. See, e.g., R. v. Nur, [2015] S.C.J. No. 15, [2015] 1 S.C.R. 773 (S.C.C.); R. v. Lloyd, [2016] S.C.J. No. 13, [2016] 1 S.C.R. 130 (S.C.C.); R. v. Smith, [1987] S.C.J. No. 36, [1987] 1 S.C.R. 1045 (S.C.C.). Generally, see Rosemary Cairns Way, "An Opportunity for Equality: Kokopenace and Nur at the Supreme Court of Canada" (2014) 61:4 Crim. L.Q. 465.

66 See, e.g., R. v. Boudreault, [2018] S.C.J. No. 58, 2018 SCC 58 (S.C.C.).

67 The s. 7 principles of fundamental justice against arbitrary, overbroad or grossly disproportionate laws can be understood as protecting the Rule of Law and its assumptions about fair and equal application of the (criminal) law being the norm, with aberrations rooted out by the courts.

68 See, e.g., British Columbia Civil Liberties Assn. v. Canada (Attorney General), [2019] B.C.J. No. 1151 at para. 272, 2019 BCCA 228 (B.C.C.A.), finding that the law governing the imposition of solitary confinement in federal prisons was procedurally unfair. The court also found that the law violated the s. 12 prohibition of cruel and unusual punishment.

69 See, e.g., R. v. Nur, [2015] S.C.J. No. 15, [2015] 1 S.C.R. 773 (S.C.C.); R. v. Lloyd, [2016] S.C.J. No. 13, [2016] 1 S.C.R. 130 (S.C.C.); R. v. Smith, [1987] S.C.J. No. 36, [1987] 1 S.C.R. 1045 (S.C.C.).

70 R. v. Bissonnette, [2022] S.C.J. No. 23, 2022 SCC 23 (S.C.C.).

71 The phrase is the title of a 1989 article, which we cite to further illustrate a very long history of academic recognition of the colonial dynamics of dispossession and marginalization driving increasing levels of Indigenous incarceration at the federal and provincial level. Michael Jackson, "Locking Up Natives in Canada" (1989) 23:2 U.B.C. L. Rev. 215.

72 The Supreme Court of Canada has candidly acknowledged that "[d]oubts concerning the effectiveness of incarceration as a deterrent have been longstanding": R. v. Nur, [2015] S.C.J. No. 15 at para. 113, 2015 SCC 15 (S.C.C.). Yet it is a sentencing principle relied on every day in criminal courtrooms across Canada to sentence people to prison.

73 See discussion of R. v. Anderson, [2021] N.S.J. No. 334, 2021 NSCA 62 (N.S.C.A.), above.

74 See, e.g., R. v. Adamo, [2013] M.J. No. 302, 2013 MBQB 225 (Man. Q.B.), involving the sentencing on a firearms offence of a man who was living with a significant cognitive impairment and experienced psychosis as a result of traumatic brain injury. His disability contributed to a diminished moral blameworthiness and to increased vulnerability to harm in prison. The court also found "systemic failures" in that Mr. Adamo had received no treatment or support for his disability, despite "almost continuous involvement in the justice system" after he sustained the brain injury. All of these factors contributed to the court finding the mandatory sentence of three years' imprisonment unconstitutional, yet this reasoning could apply to many people who are in prison. See, generally, Mental Health Commission of Canada, "The Mental Health Needs of Justice-Involved Persons: A Rapid Scoping Review of the Literature" (2020), online: https://www.mentalhealthcommission.ca/wp-content/uploads/drupal/2021-01/Justice_Scoping_Review_eng.pdf.

75 See, e.g., R. v. Ellis, [2022] B.C.J. No. 1509, 2022 BCCA 278 (B.C.C.A.), in which the sentencing range for fentanyl trafficking was challenged as inappropriate and unjust for street-level trafficking where the dealer is also a user. The sentencing judge ruled that the principles of denunciation and deterrence were not grounded in the reality of subsistence-based drug dealing and therefore did not justify incarceration. She accepted the evidence that incarceration is counter-productive: it exacerbates poverty, homelessness and overdose, particularly upon release. While the particular non-custodial sentence imposed on Tanya Ellis was upheld on appeal, the Court of Appeal for British Columbia overturned on the question of the sentencing range, holding that it continues to apply to those convicted of subsistence-based drug trafficking. See Caitlin Shane, "A mixed ruling from the BC Court of Appeal in R v Ellis" (September 4, 2022), online: https://www.pivotlegal.org/a_mixed_ruling_from_the_bc_court_of_appeal_in_r_v_ellis.

76 Fraser v. Canada (Attorney General), [2020] S.C.J. No. 28, 2020 SCC 28 (S.C.C.). A majority of the Supreme Court found that the Royal Canadian Mounted Police pension plan violated s. 15 on the basis of sex in its treatment of job sharing.

77 Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, [2018] S.C.J. No. 17, 2018 SCC 17 (S.C.C.). A majority of the Court found that amendments to Quebec's Pay Equity Act, CQLR, c. E-12.001 violated s. 15 on the basis of sex.

78 See, e.g., Employment and Social Development Canada, "Understanding Systems: The 2021 report of the National Advisory Council on Poverty" (2021): "Certain populations, including Black Canadians, racialized Canadians, immigrants, refugees, Indigenous people, persons with disabilities, and 2SLGBTQ individuals, all face higher rates of poverty", online: https://www.canada.ca/content/dam/esdc-edsc/documents/programs/poverty-reduction/nationaladvisory-council/reports/2021-annual/advisory-council-poverty-2021-annual(new).pdf at 3.

79 Washington v. Davis, 1976 U.S. LEXIS 154 at para. 30, 426 U.S. 229 [hereinafter "Washington"].

80 See Richard Moon, "Discrimination and Its Justification: Coping with Equality Rights under the Charter" (1988) 26 Osgoode Hall L.J. 673 at 679: "If the Canadian courts do adopt the view that section 15 of the Charter includes a prohibition of effects discrimination, they will have a difficult time defining the scope of the right and enforcing it in a way that does not undermine their institutional legitimacy." https://doi.org/10.60082/2817-5069.1803

81 Fraser v. Canada (Attorney General), [2020] S.C.J. No. 28 at para. 144, 2020 SCC 28 (S.C.C.).

82 We recognize that other arguments were raised against the majority position in Alliance and Fraser, including some focusing on the evidence illustrating adverse impact. Here we are making a particular point about the way that the scope and nature of the impact of recognition was raised as a reason not to recognize. See Sonia Lawrence, "Critical Reflections on Fraser: What Equality Are We Seeking?" (2021) 30:2 Constitutional Forum constitutionnel 43 at 47-50. https://doi.org/10.21991/cf29421

83 Long-term followers of sentencing and social context may be interested to know that the judge at the trial level in Sharma was Hill J. Based in the Brampton courthouse, this former Crown Attorney has heard many cases with facts like those in Sharma, cases in which young women, usually young women of colour, are caught at Toronto's Pearson International Airport having swallowed or otherwise transported illegal drugs across the border. It was Hill J. who wrote the R. v. Hamilton trial decision ([2003] O.J. No. 532, 172 C.C.C. (3d) 114 (Ont. S.C.J.)), in which he similarly attempted to find less carceral solutions for the accused women in a cocaine importation case, and similarly, although not in a constitutional context, attempted to account for the impact of race and racism in making his decision. See Sonia Lawrence & Toni Williams, "Swallowed Up: Drug Couriers at the Borders of Canadian Sentencing" (2006) 56:4 U.T.L.J. 285, online: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1597780.

84 R. v. Sharma, [2020] O.J. No. 3183 at para. 128, 2020 ONCA 478 (Ont. C.A.), per Feldman and Gillese JJ.A.

85 R. v. Sharma, [2020] O.J. No. 3183 at para. 234, 2020 ONCA 478 (Ont. C.A.), per Miller J.A., dissenting (emphasis added).

86 See, e.g., R. v. Sharma, [2022] S.C.J. No. 39 at para. 65, 2022 SCC 39 (S.C.C.) ("Incrementalism is deeply grounded in Charter jurisprudence.").

87 See, e.g., Christy Somos, "Foster care replaced residential schools for Indigenous children, advocates say", CTV News (June 7, 2021), online: https://www.ctvnews.ca/canada/foster-care-replaced-residential-schools-for-indigenous-children-advocates-say-1.5459374#:~:text=The%20residential%20school%20system%20has,Indigenous%20children%20in%20foster%20care.

88 These topics often feature in mainstream media stories. See, e.g., Nancy MacDonald, "Canada's prisons are the new residential schools", Maclean's (February 18, 2016), online: https://macleans.ca/news/canada/canadas-prisons-are-the-new-residential-schools/; Melissa Nakhavoly, "The history of Black Lives Matter Toronto and its momentous fight for change", City News Everywhere (February 4, 2021), online: https://toronto.citynews.ca/2021/02/04/the-history-of-black-lives-matter-toronto/.

89 See, e.g., Claire L' Heureux Dubé, "The Dissenting Opinion: Voice of the Future?" (2000) 38 Osgoode Hall L.J. 495 https://doi.org/10.60082/2817-5069.1499; Henrik Litleré Bentesen, "Dissent, Legitimacy, and Public Support for Court Decisions: Evidence from a Survey-Based Experiment" (2019) 53:2 L. & Soc'y Rev. 588. https://doi.org/10.1111/lasr.12402

90 See, e.g., R. v. Kokopenace, [2015] S.C.J. No. 28, 2015 SCC 28 (S.C.C.).

91 See, e.g., Symes v. Canada, [1993] S.C.J. No. 131, [1993] 4 S.C.R. 695 (S.C.C.); but see Fraser v. Canada (Attorney General), [2020] S.C.J. No. 28, 2020 SCC 28 (S.C.C.).

92 See, e.g., Eaton v. Brant County Board of Education, [1996] S.C.J. No. 98, [1997] 1 S.C.R. 241 (S.C.C.).

93 In fact, there were only two successful adverse impact discrimination claims before Fraser, despite the category of adverse impact discrimination having been recognized in the very first s. 15 case, Law Society of British Columbia v. Andrews, [1989] S.C.J. No. 6, [1989] 1 S.C.R. 143 (S.C.C.). The successful cases are Eldridge v. British Columbia (Attorney General), [1997] S.C.J. No. 86, [1997] 3 S.C.R. 624 (S.C.C.) and Vriend v. Alberta, [1998] S.C.J. No. 29, [1998] 1 S.C.R. 493 (S.C.C.). A fair amount of scholarly writing tracks this ongoing failure. See, e.g., Jonnette Watson Hamilton & Jennifer Koshan, "Adverse Impact: The Supreme Court's Approach to Adverse Effects Discrimination under Section 15 of the Charter" (2015) 19:2 Rev. Const. Stud. 191.

94 Sonia Lawrence, "'The Admittedly Unattainable Ideal': Adverse Impact and Race Under Section 15" in The Law Society of Upper Canada Special Lectures 2017 (Toronto: Irwin Law, 2018) at 547.

95 Joshua Sealy-Harrington, "The Charter of Whites: Systemic Racism and Critical Race Equality in Canada" (2023) Toronto Metropolitan University, in Emmett Macfarlane & Kate Puddister, eds., Constitutional Crossroads Reflections on Charter Rights, Reconciliation, and Change, (Vancouver: UBC Press, forthcoming) at 235. https://doi.org/10.59962/9780774867931-015

96 See, e.g., the Sharma intervener factums of the Ontario Native Women's Association, Native Women's Association of Canada, and Women's Legal Education and Action Fund. See also "Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls" chapter 8, "Deeper Dive: Criminalizing and Incarcerating Indigenous Women", online: https://www.mmiwg-ffada.ca/wp-content/uploads/2019/06/Final_Report_Vol_1a-1.pdf at 635-647.

97 Debra Parkes, "Women in Prison: Liberty, Equality and Thinking Outside the Bars" (2016) 12 J.L. & Equal. 127, at 140-141, 144. https://doi.org/10.2139/ssrn.3072726

98 Grace Ajele & Jena McGill, Intersectionality in Law and Legal Contexts (Women's Legal Education and Action Fund, 2020), online: https://www.leaf.ca/wp-content/uploads/2020/10/Full-Report-Intersectionality-in-Law-and-Legal-Contexts.pdf at 44.

99 Grace Ajele & Jena McGill, Intersectionality in Law and Legal Contexts (Women's Legal Education and Action Fund, 2020), online: https://www.leaf.ca/wp-content/uploads/2020/10/Full-Report-Intersectionality-in-Law-and-Legal-Contexts.pdf at 8.

100 See, e.g., Abella J.'s majority opinion in Fraser finding that a public pension plan discriminated on the basis of sex: "a robust intersectional analysis of gender and parenting - as this case shows - can be carried out under the enumerated ground of sex" (Fraser v. Canada (Attorney General), [2020] S.C.J. No. 28 at para. 116, 2020 SCC 28 (S.C.C.)).

101 See, e.g., Eaton v. Brant County Board of Education, [1996] S.C.J. No. 98, [1997] 1 S.C.R. 241 (S.C.C.).

102 See, e.g., Fraser v. Canada (Attorney General), [2020] S.C.J. No. 28, 2020 SCC 28 (S.C.C.).

103 See, e.g., Withler v. Canada (Attorney General), [2011] S.C.J. No. 12, [2011] 1 S.C.R. 396 (S.C.C.).

104 R. v. Sharma, [2022] S.C.J. No. 39 at para. 115, 2022 SCC 39 (S.C.C.), per Karakatsanis J.

105 R. v. Sharma, [2022] S.C.J. No. 39 at para. 61, 2022 SCC 39 (S.C.C.), per Brown and Rowe JJ.

106 Ewert v. Canada, [2018] S.C.J. No. 30, [2018] 2 S.C.R. 165 (S.C.C).

107 See, most recently, the Report of the Auditor General of Canada, online: https://www.oag-bvg.gc.ca/internet/English/parl_oag_202205_04_e_44036.html: "4.14 Overall, we found that Correctional Service Canada failed to address and eliminate the systemic barriers that persistently disadvantaged certain groups of offenders in custody that we identified in previous audits. It also failed to develop a plan for its workforce to better reflect the diversity of the offender population. As a result, Indigenous and Black offenders faced greater barriers to a safe and gradual reintegration into society than other incarcerated groups. 4.15 Disparities are present from the moment offenders enter federal institutions. The process for assigning security classifications - including the use of the Custody Rating Scale and frequent overrides of the scale by corrections staff - results in disproportionately high numbers of Indigenous and Black offenders being placed in maximum security institutions. While the majority of offenders were released on parole before the end of their sentences, Indigenous and Black offenders remained in custody longer and at higher levels of security before release."

108 Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 4(g).

109 Ewert v. Canada, [2018] S.C.J. No. 30 at para. 80, [2018] 2 S.C.R. 165 (S.C.C).

110 Ewert v. Canada, [2018] S.C.J. No. 30 at para. 53, [2018] 2 S.C.R. 165 (S.C.C).

111 British Columbia Civil Liberties Assn. v. Canada (Attorney General), [2019] B.C.J. No. 1151, 2019 BCCA 228 (B.C.C.A.).

112 British Columbia Civil Liberties Assn. v. Canada (Attorney General), [2018] B.C.J. No. 53, 2018 BCSC 62 (B.C.S.C.).

113 British Columbia Civil Liberties Assn. v. Canada (Attorney General), [2019] B.C.J. No. 1151 at para. 272, 2019 BCCA 228 (B.C.C.A.).

114 British Columbia Civil Liberties Assn. v. Canada (Attorney General), [2019] B.C.J. No. 1151 at para. 276, 2019 BCCA 228 (B.C.C.A.). In addition, a separate decision of the Ontario Court of Appeal in a case raising similar issues concluded that the imposition of solitary confinement (defined as administrative segregation in the law at the time) over 15 consecutive days violated the s. 12 guarantee against cruel and unusual punishment. See Canadian Civil Liberties Assn. v. Canada (Attorney General), [2019] O.J. No. 1537, 2019 ONCA 243 (Ont. C.A.).

115 Bill C-83: An Act to amend the Corrections and Conditional Release Act and another Act, S.C. 2019, c. 27, which received Royal Assent on June 21, 2019, creating a regime of Structured Intervention Units. For detailed, critical analysis drawing on records provided by the Correctional Service of Canada, see Jane Sprott & Anthony Doob, "Solitary Confinement, Torture, and Canada's Structured Intervention Units" (February 23, 2021), online: https://www.crimsl.utoronto.ca/sites/www.crimsl.utoronto.ca/files/Torture%20Solitary%20SIUs%20%28Sprott%20Doob%2023%20Feb%202021%29.pdf.

116 British Columbia Civil Liberties Assn. v. Canada (Attorney General), [2018] B.C.J. No. 53 at paras. 464-489, 2018 BCSC 62 (B.C.S.C.).

117 R. v. Turtle, [2020] O.J. No. 4259, 2020 ONCJ 429 (Ont. C.J.).

118 Turtle relied significantly on the Ontario Court of Appeal decision in Sharma, which in turn relied on Fraser. While Sharma does not overturn Fraser, it clearly provides a different s. 15 template for future decisions.

119 In a similar vein, a number of interveners in Sharma saw the arguments about unconstitutionality as interconnected with calls for Indigenous self-determination over justice issues. See factum of the Native Women's Association of Canada in R. v. Sharma at para. 18, online: https://www.scc-csc.ca/WebDocuments-DocumentsWeb/39346/FM120_Intervener_Native-Women's-Association-of-Canada.pdf; factum of the Assembly of Manitoba Chiefs factum in R. v. Sharma at paras. 8, 16, online: https://www.scc-csc.ca/WebDocuments-DocumentsWeb/39346/FM190_Intervener_Assembly-of-Manitoba-Chiefs.pdf.

120 As stated in R. v. Lloyd, [2016] S.C.J. No. 13 at para. 15, 2016 SCC 13 (S.C.C.), "Provincial court judges are not empowered to make formal declarations that a law is of no force or effect under s. 52(1) of the Constitution Act, 1982; only superior court judges of inherent jurisdiction and courts with statutory authority possess this power. However, provincial court judges do have the power to determine the constitutionality of a law where it is properly before them."

121 See Sonia Lawrence & Debra Parkes, "R v Turtle: Substantive Equality Touches Down in Treaty 5 Territory" (2021) 66 C.R. (7th) 430.

122 On incarceration as state violence, see, generally, Phil Scraton & Jude McCulloch, The Violence of Incarceration (London: Routledge, 2012).

123 Marie-Andrée Denis-Boileau & Marie-Ève Sylvestre, "'Ipeelee' and the Duty to Resist" (2018) 51:2 U.B.C. L. Rev. 548 at 603.

124 Sonia Lawrence & Debra Parkes, "R v Turtle: Substantive Equality Touches Down in Treaty 5 Territory" (2021) 66 C.R. (7th) 430 at 431.

125 Alana Robert, "How the Dissent in Sharma Opens the Door to Indigenize the Section 15(1) Charter Analysis", in this volume.

126 Emily Hill & Jessica Wolfe, "Ewert v. Canada: Shining Light on Corrections and Indigenous People" (2020) 94 S.C.L.R. (2d) 391 at 413, citing Ewert v. Canada, [2018] S.C.J. No. 30 at para. 53, [2018] 2 S.C.R. 165 (S.C.C).

127 Jonnette Watson Hamilton & Jennifer Koshan, "Sharma: The Erasure of Both Group-Based Disadvantage and Individual Impact", in this volume.

128 Factum of the Canadian Association of Elizabeth Fry Societies in R. v. Sharma, online: https://www.scc-csc.ca/WebDocuments-DocumentsWeb/39346/FM220_Intervener_Canadian-Association-of-Elizabeth-Fry-Societes.pdf: "We have come far enough in our understanding of governments' multi-generational complicity in the marginalization of Indigenous people that CAEFS submits there should be a presumption that any legislative measure which risks exacerbating their relative disadvantage ought to be considered in the Court's analysis pursuant to s. 7 of the Charter, given the additional implication of the right to life, liberty and security of the person." (at para. 11).

129 See, e.g., Brigitte Pellerin, "Tough on Crime a Failed Approach" Canadian Bar Association (April 26, 2022), online: https://nationalmagazine.ca/en-ca/articles/cba-influence/submissions/2022/tough-on-crime-a-failed-approach.

130 See Sarah Runyon, "Correctional Afterthought: Offences against the Administration of Justice and Canada's Persistent Savage Anxieties Criminal Law Edition" (2020) 43:5 Man. L.J. 1, online: https://heinonline.org/HOL/P?h=hein.journals/manitob43&i=1292. https://doi.org/10.29173/mlj1221

131 Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act, S.C. 2022, c. 15.

132 An example of this kind of rethinking can be found in a paper commissioned by the Department of Justice in the early days of the Trudeau government: Marie-Ève Sylvestre, "Moving Towards a Minimalist and Transformative Criminal Justice System: Essay on the Reform of the Objectives and Principles of Sentencing", Research and Statistics Division, Department of Justice Canada (August 5, 2016), online: https://www.justice.gc.ca/eng/rppr/jr/pps-opdp/pps-opdp.pdf ("I am proposing that criminal law be applied with extreme moderation and with due regard for fundamental rights and human dignity. The purposes and principles of sentencing should be substantially amended in order to prioritize the following values: conflict resolution, pardon and reconciliation, reparations for harm caused, individual and collective responsibility and the transformation of communities. These objectives require us to completely rethink our conception of crime, punishment and responsibility and how justice is served."). See also Prisoners' Legal Services, "Decarceration Through Self- Determination: Ending the Mass Incarceration of Indigenous People in Canada" (April 2023), online: https://prisonjustice.org/wp-content/uploads/2023/04/Decarceration-through-Selfdetermination-w.pdf at 9 ("Prisoners' Legal Services recommends that Canada shift $1 billion each year away from CSC to Indigenous governments and communities, representing the amount of money CSC receives to incarcerate Indigenous people (who represent 32% of people in federal prisons). These funds could be used to for a wide range of alternatives to prison, as well as for autonomous, independent Indigenous services for Indigenous people in prison and on conditional release").