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Case of Indigenous drug smuggler puts mandatory minimum sentences on trial

Jonathan Rudin, program director for Aboriginal Legal Services, an intervenor in Cheyenne Sharma’s case, is seen on Tuesday. He calls it ‘shameful’ that the government has not yet moved to limit mandatory minimum sentences.

Fred Lum/The Globe and Mail

She is Indigenous, a sex worker and from a background of extreme poverty. She was caught bringing $128,000 worth of cocaine into Canada from the Caribbean. And she is at the heart of the latest battle over mandatory minimum jail sentences in Canada.

Cheyenne Sharma, 22, faces an obligatory prison term of at least two years, according to federal prosecutors. Prosecutors say the usual sentence for someone who imports as much as she did is six to eight years. Given her difficult circumstances and Indigenous background, they are seeking three and a half years in prison.

Globe editorial: You don't need a poll to know mandatory minimum sentences are bad

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Ms. Sharma's lawyers are challenging the constitutionality of the mandatory minimum sentence. They say that, given her personal circumstances and her attempts to turn around her life, the mandatory sentence is cruel and unusual punishment, and has an outsized effect on individuals with Indigenous backgrounds.

"To subject a poor, uneducated, drug-addicted aboriginal person whose role was little more than that of a 'drug mule' to the same mandatory minimum sentence as a career drug trafficker without those same disadvantages is not only unfair, but prevents their equal treatment before the law," her lawyer, Robert Christie, says in a filing with the Ontario Superior Court of Justice in Brampton, Ont.

The mandatory minimum sentences are a Conservative legacy, part of a toughening of crime laws bequeathed to the Liberal government – and halfway through its mandate, left mostly untouched, even though Prime Minister Justin Trudeau put a review of Conservative sentencing changes in his Justice Minister's mandate letter.

That letter contained an explicit direction to reduce the incarceration rate among Indigenous peoples.

Most of the 60 mandatory minimum sentences passed by the former Conservative government address gun, drug, impaired driving and sex offences against children, and some Liberal caucus members want to maintain at least some of them.

Even as federal prosecutors fight Ms. Sharma in court, Justice Minister Jody Wilson-Raybould denounced mandatory minimum penalties (MMP) in an e-mail to The Globe and Mail. But she did not provide a timeline for changing them, or even make an explicit promise of change.

"There is absolutely no doubt that MMPs have a disproportionate effect on Indigenous people, as well as other vulnerable populations," she said. "The data are clear. The increased use of MMPs over the past decade has contributed to the overrepresentation in our prison system of Indigenous people, racialized communities and female offenders. Judges are well-equipped to assess the offender before them and ensure that the punishment fits the crime."

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She also said mandatory sentences are not necessary to keep Canadians safe and do not have a deterrent effect, except in rare circumstances such as repeat impaired-driving cases. She said she has held "14 roundtables with justice stakeholders" to solicit opinions on this issue, among others, and she acknowledged that her review of Conservative sentencing changes has taken longer than some people expected.

Last fall, Ms. Wilson-Raybould promised action. "Examination and reform of the current use of mandatory minimum penalties is a priority for me," she said in the annual John Sopinka address to the Criminal Lawyers Association in Toronto on Oct. 28. Later that week, she told The Globe that she would introduce legislation "certainly in the early part of next year" – meaning early in 2017. Judges, she said, will be given the "appropriate discretion to be able to impose sentences, engage and understand – as they do better than anybody else – the individual that is before them."

The current legal challenge is far from the first – the Supreme Court has already ruled two mandatory minimums unconstitutional (three years for gun possession, one year for drug traffickers with a previous offence) and said many more could fall. The provinces also want changes. At an emergency session on delay in the criminal-justice system, provincial justice ministers drafted a consensus statement last April with Ms. Wilson-Raybould calling for federal legislative action on the obligatory minimums. The penalties are believed to contribute to delay because they leave little room for a plea bargain and cases are therefore more likely to go to trial.

Ms. Sharma's challenge to sentencing laws comes as new figures show the representation of Indigenous peoples in federal custody intensifying under the Liberals. In 2016-17, the proportion has reached 26.83 per cent, according to the Office of the Correctional Investigator. When the Liberals came to power in 2015, the figure was 25 per cent.

"Every day that nothing happens, people are being sentenced to mandatory minimums," says Jonathan Rudin, program director of Aboriginal Legal Services, which is an intervenor in the Sharma case. "It's shameful, frankly."

So frustrated are those who oppose most mandatory minimums that Senator Kim Pate, a former prisoners' advocate whom the Liberals appointed last November, has drafted a bill that she intends to introduce in the Senate, unless Ms. Wilson-Raybould moves soon in the House.

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The bill would not remove the mandatory minimums, but would give judges the discretion to reduce sentences below the prescribed minimum where they feel appropriate, as long as they provide a written explanation.

"When I came to the Senate, I was concerned that there did not yet appear to have been any movement on the issue, so I advised the Minister of Justice that I was keen to assist in this regard," she said in an e-mail to The Globe. She said she offered her bill to the government to sponsor, "and it has not been picked up."

In Ms. Sharma's case, the Public Prosecution Service of Canada, which operates independent of Ms. Wilson-Raybould, argues that there is no evidence linking minimum penalties for drug traffickers to the overrepresentation of Indigenous women in custody.

The prosecutors said removing the penalties could have a terrible, unintended effect.

"Imposing very lenient sentences on vulnerable female Aboriginal drug couriers may counterproductively serve to increase their utility to drug importers," prosecutors John North, Lisa Csele and Sarah Egan say in their court filing.

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