In a 5-4 split decision, the majority of the high court upheld a prison sentence for Cheyenne Sharma, a 20 year old Indigenous offender with no prior criminal record. The majority of the Justices held that the provisions of the Criminal Code, which prevented Ms. Sharma from receiving a conditional sentence (not served in prison) did not contribute to a disproportionate impact on Indigenous offenders relative to non-Indigenous offenders. This, despite the fact that Indigenous offenders make up 32% of people incarcerated in Canada, while Indigenous People make up only 5% of the general Canadian population.

The minority of the Court (four Justices) recognized that in 1999 the Court called Indigenous over-incarceration a “crisis in the Canadian criminal justice system”. Since then, Indigenous incarceration rates have climbed and those of Indigenous women have soared.

“We are disappointed in the November 4th ruling of the Supreme Court of Canada in the matter of R. v. Sharma,” said MCPEI Executive Director Kateri Coade.

“While Bill C-5 is currently making its way through Parliament, and if enacted would remove minimum sentences and provisions preventing conditional sentences, it is imperative that our judges take an expansive view of the law that is consistent with reconciliation. The administration of justice must be undertaken in a progressive manner designed to stem the tide of the gross over-representation of Indigenous People in the criminal justice system. The inherent systemic racism, which is a direct result of colonization, cannot be remedied with inflexible legislation that does not allow for thoughtful consideration of the unique circumstances of Indigenous offenders.”