Releasing its ruling in R. v. Ipeelee, a pair of cases that explore the issue of differential treatment for Aboriginal offenders highlighted by the court in Gladue, the Supreme Court found factors like cultural oppression, poverty, and a history of abuse in the residential school system must factor heavily into sentencing Aboriginal offenders.
Courts have, at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society (see, e.g., R. v. Laliberte, 2000 SKCA 27, 189 Sask. R. 190),” the Supreme Court of Canada ruled in a 6-1 majority. “To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel.”
According to the Supreme Court, Gladue, a 1998 precedent-setting decision that was designed to take factors such as poverty and residential school abuse into consideration in sentencing and shift a disproportionate number of Aboriginal offenders out of prison, has failed to take hold in Canada’s justice system.
“Over a decade has passed since this Court issued its judgment in Gladue. As the statistics indicate, 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,” the Supreme Court ruled. “Granted, the Gladue principles were never expected to provide a panacea. There is some indication, however, from both the academic commentary and the jurisprudence, that the failure can be attributed to some extent to a fundamental misunderstanding and misapplication of both s. 718.2(e) and this Court’s decision in Gladue.”
Ipeelee involved appeals by two separate Aboriginal offenders who were declared long-term offenders and had long-term supervision orders imposed. The central issue in each appeal involved the determination of a fit sentence for a breach of a long-term supervision order in the case of an Aboriginal offender, particularly in determining whether or not the principles of Gladue had any effect.
Manasie Ipeelee, a 39-year-old Inuk man, is decribed in the SCC decision as a lifelong alcoholic involved in a laundry list of thefts, assaults, and sexual assaults. He began drinking alcohol when he was 11 years old, his mother froze to death when he was five years old, and he has been out of jail or in detention since 1985.
Ipeelee was sentenced to six years for a recent sexual assault and a subsequent ten years with a long-term offender designation. The designation meant he could be returned to prison for breaching the designation’s terms.
“In my view, the courts below made several errors in principle warranting appellate intervention. First, the courts reached the erroneous conclusion that protection of the public is the paramount objective when sentencing for breach of an LTSO and that rehabilitation plays only a small role,” the Supreme Court ruled. “As discussed, while protection of the public is important, the legislative purpose of an LTSO as a form of conditional release set out in s. 100 of the CCRA is to rehabilitate offenders and reintegrate them into society. The courts therefore erred in concluding that rehabilitation was not a relevant sentencing objective.”
Frank Ralph Ladue, 49, a member of a small community in the Yukon Territory was 5 when he was sent to a residential school where he was allegedly physically, sexually, emotionally, and spiritually abused, was the appellant in the other case.
After Ladue was released from residential school, he began using drugs and drinking heavily, according to the Supreme Court’s decision. Ladue also amassed 40 criminal convictions, including a number of sexual assaults, and was sentenced to three years in prison for breaking and entering and committing sexual assault.
Ladue was released in 2006 from that sentence and has been jailed for several breaches of his long-term offender order since then.
“The sentencing judge has a statutory duty, imposed by s. 718.2(e) of the Criminal Code, to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. As these reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamental principle of proportionality,” the Supreme Court ruled. “Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender, including breach of an LTSO, and a failure to do so constitutes an error justifying appellate intervention.”
The Supreme Court ultimately allowed Ipeelee’s appeal but dismissed Ladue’s appeal. Ipeelee was sentenced to one year in prison, while Ladue’s sentence of one year in prison was left untouched.