Reflections on the Supreme Court of Canada's Decision in R. v. Sharma


  • Colton Fehr



The criminal law has been criticized for failing to engage with the right to equality when delineating its permissible scope. While these criticisms are forceful, they must also be tempered by the structure of judicial review. The Supreme Court’s recent decision in R. v.Sharma is illustrative. Despite an avid dissent, a narrow majority found that Parliament’s decision to amend a prior sentencing law that conferred a benefit to a minority group could not by itself sustain a violation of the right to equality. This approach is principled as any other interpretation would undermine the constitutional framework for punishment under the Canadian Charter of Rights and Freedoms. This follows as the essence of the constitutional challenge in Sharma concerned whether refusing to permit a conditional sentence order for select offences would result in an unconstitutional punishment. By finding a violation of the right to equality, the minority circumvented the gross disproportionality standard required to declare a punishment unconstitutional under section 12 of the Charter. In its place, the minority would have imposed a mere proportionality standard under section1 for any punishment laws that retract a previously granted benefit to a minority group. Such an approach might be justifiable if there were no other means to consider equality interests when determining the constitutionality of sentencing laws. However, that is not the case as the reasonable hypothetical offender analysis under section 12 can ensure that the equality considerations implicit in the criminal law are given due weight. While conducting the analysis under section 12 does not change the result in Sharma, it upholds the principle underlying that provision requiring the scope of sentencing policy to remain reasonably broad to account for differing political opinions about the appropriate use of punishment.