FAMOUS CASES | Criminal Sentencing of Aboriginal Offenders: Ipeelee.

• Author: Bowal, Peter

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.

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...