AuthorDenis-Boileau, Marie-Andree

On 7 April 2015, nearly three years to the day following the ruling by the Supreme Court of Canada in R v Ipeelee, (1) the Manitoba Court of Appeal upheld the seven-year prison sentence meted out to John Charlette. (2)

John Charlette is a 30-year old Cree man. Born in Flin Flon, Manitoba, he ran away from home at age six to Winnipeg. There, he was picked up and taken in by youth protection services, which placed him in several foster homes. He had no contact with his Indigenous culture as he was growing up. He exhibited suicidal tendencies at several stages of his life. (3)

On the evening of the tragedy, the accused, armed with a knife, took a taxi and travelled several kilometres. He made two stops at automatic teller machines in an attempt to withdraw money but was unsuccessful. At the second stop, the taxi driver called the police and asked Charlette to pay the fare. The accused refused and forced the driver to hand over his money by threatening him with his knife. The taxi driver managed to flee and Charlette sought refuge in an alley where he was chased down by two police officers who had arrived on the scene. He threatened them with his knife on several occasions by moving towards them. He told them that he would not surrender and that they would be forced to kill him. One of the police officers shot twice at the accused, who survived.

After a trial in which he stated that he intended to commit suicide by lunging at the police officers that evening ("a suicide by cop" (4)), Charlette was ultimately found guilty of robbery, of two counts of assault with a weapon against a peace officer and possession of a weapon for a dangerous purpose. The judge would have given him a total sentence of eight years' imprisonment, but, applying the totality principle and the Gladue factors, he reduced the sentence to seven years. Although Charlette had already been criminally convicted 41 times, he had never been sentenced to the penitentiary.

Canadian colonization and the implementation of government policies providing for expulsion from home territory, herding into reservations, and assimilation had devastating consequences for Indigenous peoples. The Canadian residential school policy, initiated in the 19th century and lasting until the mid-1980s, dictated that Indigenous children be separated from their families and sent to residential schools, (5) which inflicted profound multigenerational trauma on Indigenous communities. (6) This trauma was due to their uprooting from their families but also due to the mistreatment and physical, psychological, and sexual abuse inflicted on the children from these generations. The colonial policies contributed to the perpetration of a "cultural genocide", namely the "destruction of those structures and practises that allow the group to continue as a group". (7) Hence, they created a significant rift in the imparting of Indigenous law by rendering Indigenous legal systems invisible and denying their existence, (8) which diminished the self-tegulatory ability of Indigenous societies and increased their dependence on the state justice systems. (9)

Classical studies in legal pluralism allow for a description and an understanding of the interactions and entanglements between State law and Indigenous law. (10) These interactions can be considered and represented on a continuum, with one end representing separation, characterized by the closed-ended nature and complete independence of the legal systems, and the other end representing merger or subordination, which in fact reflects an imperialist intent to reject the existence of any non-State system and does not amount to true pluralism. (11) Between these two extremes, one finds various processes of internormativity of varying scopes, depending on whether they reveal the existence of a "facade of pluralism" or a strictly colonial one, or a true acknowledgement of legal otherness. (12) These interactions between the systems are neither permanent nor static. Santos speaks of "contact zones", at the outer teaches of which symbolic universes, types of knowledge and disctete prescriptive principles meet and compete. (13) These contact zones are areas of great conflict whete the various legal systems, and their representatives, wage a continuous battle in order to maintain or redefine their respective positions. (14) However, this struggle is not one of opponents vying on equal terms. This is especially the case in a post-colonial setting where there is a power imbalance between the parties. The role played by the actors within each of these legal systems therefore takes on crucial significance.

On this chessboard of legal pluralism, Canada has generally taken an imperial, subordinating position in criminal matters, whereby Canada imposed its justice system and denied the existence of the various Indigenous legal systems with a view to assetting its sovereignty over the territory. (15) However, this domination was never absolute. At times it was tempered by resistance by Indigenous peoples and, on other occasions, by some concessions or accommodations on the part of the State, through an adjustment in the State's criminal law practice or as a result of the incorporation of certain elements of Indigenous justice into the State's criminal justice system. One must acknowledge that these manifestations of legal pluralism were often no more than expressions of a facade of pluralism. However, must things necessarily be so? And what is the role played by actors within these systems? Are they doomed to repeat the exclusive hegemonic logic of the State criminal justice system or is it possible for them to resist and to innovate by acknowledging and incorporating Indigenous legal systems?

It is against this backdrop that we propose to take a critical look at subsection 718.2(e) of the Criminal Code ("CC"). (16) This subsection states that, the sentencing judges should take into consideration "all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the hatm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders". (17) In particular, we intend to focus on the interpretation this provision has received from Canadian courts since the Supreme Court of Canada's tuling in Ipeelee. (18) Subsection 718.2(e) forms part of a series of measures taken by the State with a view to minimizing the impact of the imposition of Canadian law on Indigenous people, to the same extent, for example, as the provision of interpretation and legal support services, (19) the establishment of specialized courts in certain provinces, (20) the implementation of sentencing circles and alternative measures programs developed pursuant to section 717. (21)

We suggest that the interpretation proposed by the Court in Ipeelee and followed by certain provincial court judges represents a form of resistance by the judiciary. This resistance is directed at excessive sentences and at the overrepresentation of Indigenous people in the criminal justice system, and also at legal monism and state hegemony. It is not the only form of resistance within the state system but is nevertheless an inescapable standard-bearer thereof. (22) We will then demonstrate that this innovative approach is, however, being strongly resisted by judges. Based on our exhaustive analysis of 635 trial and appellate decisions handed down aftet the ruling in Ipeelee between 23 March 2012 and 1 October 2015, we will discuss the very limited impact of the proposed approach in the sentencing of Indigenous offenders. (23) In other words, and the Charlette case is a prime illustration of this point, subsection 718.2(e) continues to be a resounding failure in this country, despite a few isolated acts of judicial courage. (24)

We will then attempt to identify the main practical and epistemological hurdles that may explain this state of affairs and that emerge from our analysis of these decisions and of the literature. We will ultimately put forth that the resistance to innovation expressed by an overwhelming majority of judges is also more generally part of a resistance by the legal system to pluralism and a challenge to the monopoly of the Canadian State in matters of punishment.

This resistance could be overcome, in part, by supporting the efforts by certain creative judges, as well as those by Indigenous communities involved in the revitalization of their legal orders, allowing Indigenous peoples to manage the conflicts afflicting them and better coordinate these efforts with the justice system. (25) In other words, in our opinion, subsection 718.2(e) and the interpretation thereof have created a contact zone within which the legal systems can intersect with a view to achieving greater internormativity. Judges have a ctucial role to play in this respect. The ultimate goal we seek to achieve is to bring about a dialogue between the state legal system and Indigenous nations in ordet to provide them both with the tools they need to innovate and better resist state punitiveness and the denial of Indigenous laws.


    The ruling in Ipeelee by the SCC was handed down nearly fifteen years after its forerunners, Gladue (26) and Wells. (27) In this case, Justice LeBel, speaking for the majority, took stock of the fact that the Gladue decision and subsection 718.2(e) did not have the anticipated impact within the Canadian ctiminal justice system, specifically with respect to the representation of the Indigenous population in the prison population. Instead, the situation has worsened. (28)

    Justice LeBel first confirmed the analysis propounded in Gladue. A sentencing judge must focus his or her attention on two sets of circumstances in which Indigenous offenders find themselves, and that...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT