In Ipeelee, the Supreme Court of Canada again considered the Gladue Principles.
Over a decade has passed since this Court issued its judgment in Gladue. As the statistics indicate, s. 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 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.R v Ipeelee, 2012 SCC 13 at para 63
In the last column, we described the Supreme Court of Canada Gladue decision from 1999. This decision impacts sentencing of Aboriginal persons for the crimes they commit. The race-based Gladue Principles require Canadian judges to consider several mitigating factors for Aboriginal offenders, apparently to reduce their prison sentences. This special sentencing approach is not available to reduce incarceration for non-Aboriginal offenders who have suffered equally (or more) challenging childhoods.
Gladue added bureaucratic and delay burdens to an already overloaded justice system. The ambiguous Principles lead to inconsistent judicial application and outcomes. Gladue did not curb Aboriginal incarceration rates in Canada – charges, convictions and imprisonments involving Aboriginal persons have increased.
It was predictable that the Supreme Court of Canada would re-visit the issue of Aboriginal sentencing under section 718.2(e) of the Criminal Code. This section requires “particular attention to the circumstances of aboriginal offenders” when sentencing using “all available sanctions other than imprisonment that are reasonable in the circumstances.” This opportunity came up thirteen years after Gladue in the two unrelated cases of Manasie Ipeelee and Frank Ladue. Both were Aboriginal men charged with violating Long Term Supervision Orders. The Supreme Court of Canada heard the cases together and released one decision, recorded as R v Ipeelee.
Manasie Ipeelee was a lifetime criminal, having collected some three dozen convictions as a youth and dozens more convictions as an adult. He blamed alcoholism from a young age and lack of parental guidance. The court designated him a habitual offender in 1999, after sexually assaulting and causing bodily harm to a homeless woman. For that crime, he was sentenced to six years in prison. After release from prison and still a high risk to re-offend, he became subject to a ten-year Long Term Supervision Order (LTSO). Breaching a LTSO is an indictable offence punishable by up to ten years’ imprisonment. Ipeelee was caught violating it four times in the first year.
He breached the condition to abstain from alcohol in August 2008 when he was found intoxicated in public and in possession of two bottles of alcohol in Kingston, Ontario. Ipeelee pleaded guilty. The sentencing judge observed that “Mr. Ipeelee’s aboriginal status had already been considered during sentencing for the 1999 offence”. Given the threat Ipeelee posed to the public, his Aboriginal status was of “diminished importance” (para 15). The Ontario Court of Appeal dismissed the sentence appeal, concluding that “the appropriate sentence will … not differ as between Aboriginal and non-Aboriginal offenders” (para 17). Ipeelee appealed his three-year prison sentence to the Supreme Court of Canada.
Frank Ladue similarly grew up in the north, was a child of a broken home, and was surrounded by alcoholism. After more than forty criminal convictions, an LTSO was signed. He quickly and often breached the order and was sentenced to three years in jail for doing so. The judge acknowledged that although Ladue’s past was tragic, that should not have any impact on this sentence.
The British Columbia Court of Appeal ruled that the sentencing judge did not properly consider Ladue’s Aboriginal background according to Gladue and section 718.2(e). It reduced the imprisonment to one year. The Crown appealed.
Supreme Court of Canada
The Supreme Court of Canada considered how the Gladue Principles applied to figure out a fit sentence for an Aboriginal person’s breach of an LTSO. The Court repeated the purpose of “overrepresentation of Aboriginal people in the Canadian criminal justice system” (para 58). It called on sentencing judges to “take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society” (para 60). ‘Taking notice’ is code to reduce imprisonment beyond what they would sentence similar non-Aboriginal offenders.
The Court acknowledged:
statistics indicate that the overrepresentation and alienation of Aboriginal peoples in the criminal justice system has only worsened. In the immediate aftermath of [the reforms], Aboriginal admissions to custody increased by 3% while non-Aboriginal admissions declined by 22%. From 2001 to 2006, there was an overall decline in prison admissions of 9%. During that same time period, Aboriginal admissions to custody increased by 4%. As a result, the overrepresentation of Aboriginal people in the criminal justice system is worse than ever. Whereas Aboriginal persons made up 12 percent of all federal inmates in 1999 when Gladue was decided, they accounted for 17 percent of federal admissions in 2005. As Professor Rudin asks: “If Aboriginal overrepresentation was a crisis in 1999, what term can be applied to the situation today?”Ipeelee at para 62.
The Supreme Court of Canada conceded that its “decision in Gladue were not universally well received” (para 64), which we suggest is the greatest understatement in the decision. Therefore, it embraced Ipeelee to resolve the “misunderstandings, clarify certain ambiguities and provide additional guidance so that courts can properly implement this sentencing provision” (para 63).
The Court identified three criticisms of Gladue:
(1) sentencing is not an appropriate means of addressing overrepresentation; (2) the Gladue principles provide what is essentially a race-based discount for Aboriginal offenders; and (3) providing special treatment and lesser sentences to Aboriginal offenders is inherently unfair as it creates unjustified distinctions between offenders who are similarly situated, thus violating the principle of sentence parity.Ipeelee at para 64.
It then batted these objections away, stating all “these criticisms are based on a fundamental misunderstanding of the operation of s. 718.2(e) of the Criminal Code.” The Court simply reaffirmed that Gladue Principles are “required in every case involving an Aboriginal offender” (para 87).
The Court allowed the lower one-year prison sentences imposed on both Ipeelee and Ladue – the lowest sentence option – because they were Aboriginal offenders with difficult childhoods. This was one-tenth of the maximum sentence for serious offences.
The Supreme Court of Canada continues to be obsessed with racial proportionality in prisons, which we suggest it was not appointed to bring about and is not equipped to maintain. The Court’s role is not to guarantee equality of outcomes along racial lines. It refuses to contemplate that crime is, by definition, a matter of personal and individual will and choice.
This reaffirmation of Gladue was puzzling. The Court sought to reduce expectations it had set earlier and disregarded serious concerns. It directed judges to ‘just keep doing what we told you to do and we’ll hope for better outcomes.’ Moreover, this occurred in the context of long-term offenders where the paramount consideration is not racial quotas in prisons but the protection of society.
Judges must explicitly contemplate and delineate the vague notion of “Aboriginal background.” This must be accepted as the first and most indefinite victimhood in the crime being addressed. “Aboriginal background” serves as a mitigating factor – a form of excuse or explanation for committing crimes. It may outweigh the injury claimed by the offenders’ victims. Regardless whether “Aboriginal background” has any connection to the current offence – especially when it is tied to the notion of Aboriginal over-representation in prison – Gladue and Ipeelee can have only one result: to favour non-custodial sentences or custodial sentences of shorter duration than for offenders of other races.
We have seen this is not working to reduce Aboriginal incarceration. The Court refuses to consider the logical possibility that the Gladue Principles might even increase Aboriginal incarceration in the long-term.
The Court accused its detractors and Canada’s sentencing judges of “fundamental misunderstanding and misapplication” in their criticism of Gladue and its approach to section 718.2(e). The Gladue race-based sentencing approach has failed. Aboriginal incarceration rates are increasing. Yet in Ipeelee, the Supreme Court of Canada merely doubled down on Gladue.
The next column will feature the last of this trilogy of cases describing criminal sentencing for Aboriginal offenders. How effective have section 718.2(e) and the Gladue Principles been?
The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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