Potentially discriminatory predictive policing has been in the news recently leading some to express concerns that such methods disproportionately target marginalized communities. Any aspect of the justice system that has the potential to exacerbate existing inequalities is of obvious concern.

That leads to a discussion of Conditional Sentence Orders (CSO). Trust me this will all tie together.

CSO’s were added to the Criminal Code in 1996. When you hear about someone receiving house arrest as a sentence that means they received a CSO. CSO’s were introduced as government sought to reduce overincarceration and the use of prison sentences, where appropriate. The Criminal Code was also amended to add a requirement for sentencing judges to consider all available sanctions aside from prison for all offenders, with particular attention to the circumstances of aboriginal offenders.

CSO’s are a jail sentence that is served in the community. That means they will usually include restrictions on liberty like house arrest or a curfew. It also means that if the terms are breached a person will be returned to custody and there will be a hearing about what should happen with the time left on the CSO. The starting point when a breach occurs is that the time left on the CSO will be spent in jail. 

Seen this way CSO’s serve an important role in being a significant consequence but not requiring an individual go to jail and have their life completely interrupted. The prerequisites for a CSO to be imposed are that the sentence of imprisonment be of less than two years; that serving the sentence in the community would not endanger the safety of the community; and that a conditional sentence would be consistent with the fundamental purpose and principles of sentencing.

The Safe Streets and Communities Act (the Act) passed by the Harper Government in 2012 drastically reduced the offences for which CSO’s could be imposed.  In enacting this Act, no consideration was given to the potential effect of the amendments on aboriginal offenders. 

In R. v. Sharma the Ontario Court of Appeal has ruled those provisions unconstitutional. In a 2-1 decision the majority found that the sections of the Code breached sections 7 and 15 of the Charter. S. 7 provides that every Canadian has the right to life, liberty and security of the person and not to be deprived thereof except in accordance with the principles of fundamental justice. S. 15 provides that every individual is equal before and under the law. 

As usual the facts of the case are important. Ms. Sharma was an Indigenous woman and mother of a small child who was caught in 2015 smuggling almost two kilograms of cocaine into Canada from South America. She was a young first-time offender who was in a desperate financial situation and faced eviction from her home.

In relation to s. 15 the court found that while the intent of the Act is to incarcerate offenders convicted of certain offences. The reality is that the Act will result in more Indigenous offenders serving their sentences in jail rather than in their communities. Thus, the Act denies the benefit of a conditional sentence in a manner that has the effect of reinforcing, perpetuating or exacerbating the disadvantage of Aboriginal offenders, and is therefore contrary to s. 15.

While on their face the provisions apply equally to all offenders, in practice they create a distinction on the basis of race. The court explained:

Aboriginal offenders start from a place of substantive inequality in the criminal justice system. The overincarceration of Aboriginal people is one of the manifestations of that substantive inequality, which prompted Parliament to create the community-based conditional sentence and direct sentencing judges to consider that sanction, along with all others that do not involve imprisonment, when determining an appropriate punishment for Aboriginal offenders…conditional sentences take on a unique significance in the context of Aboriginal offenders by conferring the added benefit of remedying systemic overincarceration. By removing that remedial sentencing option, the impact of the impugned provisions is to create a distinction between Aboriginal and non-Aboriginal offenders based on race.

In relation to s. 7 the court found that the Act was overbroad. Briefly that means that the law went further than it needed to meet its objective. In other words the provisions will impact people they were not intended to capture. The court suggested this problem could be fixed by narrowing the reach of the law or providing judges with some discretion for exceptional cases like that of Ms. Sharma. 

Given that there was a dissent it seems likely that the Supreme Court of Canada will weigh in. In the meantime, sentencing judges may have more tools in their sentencing toolbox to craft an appropriate sentence in their cases and hopefully make progress towards reducing the number of Indigenous offenders serving jail sentences. 

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