The Supreme Court of Canada released joint reasons today in the criminal sentencing appeals of two Aboriginal persons, Manasie Ipeelee and Frank Ralph Ladue (cited together as R. v. Ipeelee, 2012 SCC 13). This case is a positive decision for criminal law involving Aboriginal offenders. And we have to admit, we’re excited that the Court relied on an article by OKT’s managing partner, Renée Pelletier!
Section 718.2(e) of the Criminal Code requires judges to take “the circumstances of aboriginal offences” into account in sentencing, especially to look at “all available sanctions other than imprisonment that are reasonable in the circumstances”. The Supreme Court laid out principles for this section in R. v. Gladue,  1 S.C.R. 688. Judges were directed to look at alternative sentencing options, and were directed to consider broad systemic and background factors that affect Aboriginal people generally and the offender in particular. Judges must “judicial notice” of certain factors, and a case-specific report (a “Gladue Report”) must also be prepared.
In Ipeelee, the Supreme Court reaffirms the importance of Gladue, and confirms that it applies in all contexts, including when sentencing a long-term offender for breach of a Long-Term Supervision Order.
Notably, the Supreme Court identifies two errors that courts had been making in cases since Gladue:
1. Error 1, paras. 81-83: “[S]ome cases erroneously suggest that an offender must establish a causal link between background factors and the commission of the current offence before being entitled to have those matters considered by the sentencing judge”. An example of this approach is R. v. Poucette, 1999 ABCA 305.
The Supreme Court held that such an approach “displays an inadequate understanding of the devastating intergenerational effects of the collective experiences of Aboriginal peoples. It also imposes an evidentiary burden on offenders that was not intended by Gladue.” The interconnections between background factors and the individual’s offence are “too complex” to draw the exact lines from A to B.
2. Error 2, paras. 84-87: The second error, “perhaps [the] most significant issue”, is the “irregular and uncertain application of the Gladue principles to sentencing decisions for serious or violent offences”. An example of this approach is R. v. Carrière (2002), 164 C.C.C. (3d) 569 (Ont. C.A.), but the Supreme Court notes that “numerous cases” have made this mistake.
The Supreme Court emphasized that “sentencing judges have a duty to apply s. 718.2(e)”, in “every case involving an Aboriginal offender”; failure to do so is an error that should be corrected by an appeal judge.
In discussing this second error, the Supreme Court quoted one of OKT’s lawyers, Renée Pelletier:
 In addition to being contrary to this Court’s direction in Gladue, a sentencing judge’s failure to apply s. 718.2(e) in the context of serious offences raises several questions. First, what offences are to be considered “serious” for this purpose? As Ms. Pelletier points out: “Statutorily speaking, there is no such thing as a ‘serious’ offence. The Code does not make a distinction between serious and non-serious crimes. There is also no legal test for determining what should be considered ‘serious’” (R. Pelletier, “The Nullification of Section 718.2(e): Aggravating Aboriginal Over-representation in Canadian Prisons” (2001), 39 Osgoode Hall L.J. 469, at p. 479). Trying to carve out an exception from Gladue for serious offences would inevitably lead to inconsistency in the jurisprudence due to “the relative ease with which a sentencing judge could deem any number of offences to be ‘serious’” (Pelletier, at p. 479). It would also deprive s. 718.2(e) of much of its remedial power, given its focus on reducing overreliance on incarceration. A second question arises: who are courts sentencing if not the offender standing in front of them? If the offender is Aboriginal, then courts must consider all of the circumstances of that offender, including the unique circumstances described in Gladue. There is no sense comparing the sentence that a particular Aboriginal offender would receive to the sentence that some hypothetical non-Aboriginal offender would receive, because there is only one offender standing before the court.
In terms of the factual background, both Mr. Ipeelee and Mr. Ladue had serious substance abuse problems and a history of committing crimes, including assaults and sexual assaults, while intoxicated. Mr. Ipeelee was from Nunavut, but was living in Ontario. Mr. Ladue was from the Yukon, but was living in BC. In both cases, their Long-Term Supervision Order required that they not drink or do drugs. They did. In each case, they were sentenced at trial to 3 years for drinking or doing drugs in breach of their Long-Term Supervision Order. At the provincial courts of appeal, Mr. Ladue’s sentence was to one year, but Mr. Ipeelee’s was not. The Supreme Court granted Mr. Ipeelee’s appeal and reduced his sentence to one year, and dismissed the appeal in Ladue.
In the Ipeelee decision, the Supreme Court recognizes with sadness that despite Gladue, “section 718.2(e) of the Criminal Code has not had a discernible impact on the overrepresentation of Aboriginal people in the criminal justice system.” In fact, “statistics indicate that the overrepresentation and alienation of Aboriginal peoples in the criminal justice system has only worsened” (paras. 62-63). The facts of this case are a reminder of this grim reality.
No court case will solve this problem. But, we are glad to see that Canada’s highest court is continuing to take a more considerate and principled approach to Aboriginal sentencing.
By Judith Rae