Ontario Native Women's Association intervenes in Supreme Court of Canada appeal concerning the constitutionality of Criminal Code provisions
November 04, 2022
On November 4, 2022, McCarthy Tétrault represented the intervenor, the Ontario Native Women’s Association (“ONWA”), in R. v. Sharma, 2022 SCC 39, an appeal concerning the constitutionality of Criminal Code provisions that eliminate the availability of non-custodial sentences for some offences.
ONWA argued that the removal of Indigenous women from their homes and communities by the Criminal Code provisions interferes with their sacred roles, rights, and responsibilities under Indigenous laws and denies them meaningful non-carceral alternatives. ONWA argued that this violates Indigenous women’s right to equality under s. 15(1) of the Canadian Charter of Rights and Freedoms.
While a 5:4 majority of the Court upheld the Criminal Code provisions, the dissent engaged directly with ONWA’s submissions on the serious impacts of incarceration on Indigenous women, who may experience personal losses to their cultural identity and spiritual well-being. The dissent also acknowledged ONWA’s submissions on the “profound and ongoing impact” of their absence from their communities.
On November 17, 2022, Parliament passed Bill C-5, which amends the challenged Criminal Code provisions to expand the availability of conditional sentences in some circumstances. These amendments are expected to better protect Indigenous women's ability to fulfill their inherent and sacred roles in their communities and help to address the over-incarceration of Indigenous people in Canada.
McCarthy Tétrault represented ONWA with a team led by Alana Robert that included Connor Bildfell and Adam Goldenberg.