R. v. Ipeelee (M.), (2012) 428 N.R. 1 (SCC)

JudgeMcLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella and Rothstein, JJ.
CourtSupreme Court (Canada)
Case DateMarch 23, 2012
JurisdictionCanada (Federal)
Citations(2012), 428 N.R. 1 (SCC);2012 SCC 13;288 OAC 224;[2012] 1 SCR 433;[2012] CarswellOnt 4375;318 BCAC 1;[2012] 2 CNLR 218;99 WCB (2d) 642;EYB 2012-204040;JE 2012-661;428 NR 1;[2012] SCJ No 13 (QL);AZ-50841754;[2012] EXP 1208;91 CR (6th) 1;280 CCC (3d) 265

R. v. Ipeelee (M.) (2012), 428 N.R. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2012] N.R. TBEd. MR.033

Manasie Ipeelee (appellant) v. Her Majesty The Queen (respondent) and Director of Public Prosecutions and Aboriginal Legal Services of Toronto Inc. (intervenors)

(33650)

Her Majesty The Queen (appellant) v. Frank Ralph Ladue (respondent) and British Columbia Civil Liberties Association and Canadian Civil Liberties Association (intervenors)

(34245; 2012 SCC 13; 2012 CSC 13)

Indexed As: R. v. Ipeelee (M.)

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella and Rothstein, JJ.

March 23, 2012.

Summary:

The 37 year old aboriginal accused (Ipeelee) was sentenced to six years' imprisonment followed by a long-term supervision order after being designated a long-term offender. Ipeelee was an alcoholic with a history of offending violently when intoxicated. Alcohol was a major factor in the risk of him re-offending. He was released after serving the full six years. Seventeen months later, Ipeelee committed an offence while severely intoxicated, contrary to the alcohol abstention condition of his supervision order. He was convicted of breaching the supervision order and was sentenced to 30 months' imprisonment, in addition to the six months' pre-trial custody. Ipeelee appealed his sentence, submitting that, inter alia, the sentence was demonstrably unfit, enhanced credit was not given for pre-trial custody, and the sentencing judge failed to adequately consider his aboriginal status.

The Ontario Court of Appeal, in a judgment reported (2009), 264 O.A.C. 392, dismissed the appeal. The sentence was not demonstrably unfit, given Ipeelee's criminal history while intoxicated and the predominant concern for public protection. There was no error in refusing enhanced credit for pre-trial custody. The time under a long-term supervision order continued to run while Ipeelee was in pre-trial custody and a significant reason for enhanced credit (credit towards early release) was not relevant where he was unlikely to be granted early release. Finally, even if the sentencing judge did not reduce the sentence because of Ipeelee's aboriginal status, this was a case where the appropriate sentence would be the same for an aboriginal or non-aboriginal offender. Ipeelee appealed.

The accused (Ladue) was a long-term offender. He breached a condition of his long-term supervision order by consuming intoxicants and was sentenced to three years' additional imprisonment. Ladue appealed that sentence on the basis that the sentencing judge considered disputed evidence, failed to give effect to his circumstances as an aboriginal offender, and imposed a sentence that was demonstrably unfit.

The British Columbia Court of Appeal, in a judgment reported (2011), 302 B.C.A.C. 93; 511 W.A.C. 93, allowed the appeal and reduced Ladue's sentence to one year. Chiasson, J.A., dissenting would have allowed the appeal and reduced the sentence to two years. The Crown appealed. The appeals were heard together. In both appeals, the central issue was how to determine a fit sentence for an aboriginal offender breaching a long-term supervision order and whether (and how) the Gladue principles applied to these sentencing decisions.

The Supreme Court of Canada, Rothstein, J., dissenting in part, allowed Ipeelee's appeal and reduced his sentence to one year's imprisonment, and dismissed the Crown's appeal, affirming Ladue's one year sentence.

Criminal Law - Topic 5801.1

Sentencing - General - Proportionality - The Supreme Court of Canada stated that "the fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing - the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. ... Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender." - See paragraph 37.

Criminal Law - Topic 5806.1

Sentencing - General - Sentence parity - General - [See second Criminal Law - Topic 5846.1 ].

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - The Supreme Court of Canada discussed whether, and how, the Gladue principles applied to sentencing an aboriginal offender for breaching a long-term supervision order - The court stated that "s. 718.2(e) of the Code is a remedial provision designed to ameliorate the serious problem of overrepresentation of Aboriginal in Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing ... It does more than affirm existing principles of sentencing; it calls upon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders. ... When sentencing an Aboriginal offender, a judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection ... Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report." - See paragraph 59.

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - The Supreme Court of Canada discussed whether, and how, the Gladue principles applied to sentencing an aboriginal offender for breaching a long-term supervision order - The court stated that "section 718.2(e) does not create a race-based discount on sentencing. The provision does not ask courts to remedy the overrepresentation of Aboriginal people in prisons by artificially reducing incarceration rates. Rather, sentencing judges are required to pay particular attention to the circumstances of Aboriginal offenders in order to endeavour to achieve a truly fit and proper sentence in any particular case. This has, and continues to be, the fundamental duty of a sentencing judge. Gladue is entirely consistent with the requirement that sentencing judges engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them. Gladue affirms this requirement and recognizes that, up to this point, Canadian courts have failed to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process. Section 718.2(e) is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful to Aboriginal peoples. ... Courts must ensure that a formalistic approach to parity in sentencing does not undermine the remedial purpose of s. 718.2(e)." - See paragraphs 75, 79.

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - The Supreme Court of Canada discussed whether, and how, the Gladue principles applied to sentencing an aboriginal offender for breaching a long-term supervision order - The court noted errors in applying s. 718.2(e) of the Criminal Code in post-Gladue cases - Contrary to those cases, an aboriginal accused need not 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 - Requiring proof of a causal link imposed an evidentiary burden on aboriginal offenders that was not intended by Gladue - The court stated that "the second and perhaps most significant issue in the post-Gladue jurisprudence is the irregular and uncertain application of Gladue principles to sentencing decisions for serious or violent offences." - The court rejected the principle that "the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for Aboriginals and non-Aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing." - The court repeated that "the generalization drawn in Gladue to the effect that the more violent and serious the offence, the more likely as a practical matter for similar terms of imprisonment to be imposed on aboriginal and non-aboriginal offenders, was not meant to be a principle of universal application" - See paragraphs 80 to 85.

Criminal Law - Topic 5898.2

Sentence - Breach of long-term supervision order - The Supreme Court of Canada discussed the principles and objectives of imposing a fit sentence for breaching a long-term supervision order - The two specific objectives of long-term supervision as a form of conditional release were "(1) protecting the public from the risk of re-offence, and (2) rehabilitating the offender and integrating him or her into the community" - The court stated that "unfortunately, provincial and appellate courts have tended to emphasize the protection of the public at the expense of the rehabilitation of offenders. This, in turn, has affected their determination of what is a fit sentence for breaching a condition of an LTSO. ... it would be contrary to reason to conclude that rehabilitation is not an appropriate sentencing objective and should therefore play 'little or no role' ... This is not to say that rehabilitation will always be the foremost consideration when sentencing for breach of an LTSO. ... The foregoing merely demonstrates that there is nothing in the provisions of the Criminal Code or the CCRA to suggest that any of those principles or objectives will not apply to the breach of an LTSO. As with any sentencing decision, the relative weight to be accorded to each sentencing principle or objective will vary depending on the circumstances of the particular offence. ... The lengthy maximum penalty certainly indicates that Parliament views the breach of an LTSO differently (and more seriously) than the breach of a probation order. However, it would be too much to suggest that the mere existence of a high statutory maximum penalty dictates that a significant period of imprisonment should be imposed for any breach of an LTSO. Breaches can occur in an infinite variety of circumstances. Parliament did not see fit to impose a mandatory minimum sentence. Where no minimum sentence is mandated by the Criminal Code, the entire range of sentencing options is open to a sentencing judge, including non-carceral sentences when appropriate" - See paragraphs 40 to 55.

Criminal Law - Topic 5898.2

Sentence - Breach of long-term supervision order - The 37 year old aboriginal accused (Ipeelee) was sentenced to six years' imprisonment followed by a long-term supervision order after being designated a long-term offender - The accused was an alcoholic with a history of offending violently when intoxicated - Alcohol was a major factor in the risk of him re-offending - Ipeelee was released after serving the full six years - Seventeen months later, he committed an offence while severely intoxicated, contrary to the alcohol abstention condition of his supervision order - Ipeelee was convicted of breaching the supervision order and was sentenced to 30 months' imprisonment, in addition to the six months' pre-trial custody - Ipeelee appealed, submitting that, inter alia, the sentencing judge failed to reduce his sentence on account of his aboriginal status - The Ontario Court of Appeal dismissed the appeal - The sentence was not demonstrably unfit, given Ipeelee's criminal history while intoxicated and the predominant concern for public protection - Finally, even if the sentencing judge did not reduce Ipeelee's sentence because of his aboriginal status, this was a case where the appropriate sentence would be the same for an aboriginal or non-aboriginal offender - The Supreme Court of Canada allowed Ipeelee's sentence appeal and reduced the three year sentence to one year - Both courts overemphasized protection of the public while erring in finding that rehabilitation played only a small role - Insufficient consideration was given to Ipeelee's aboriginal status, as required by s. 718.2(e) of the Criminal Code - The Court of Appeal erred in finding that this was the kind of offence where the sentence would not differ between aboriginal and non-aboriginal offenders - Focussing on the actual incident giving rise to the breach (being intoxicated, not being intoxicated and engaging in violence), and the fact that this was Ipeelee's first breach of the supervision order (18 months into it), one year's imprisonment was sufficient - See paragraphs 88 to 93.

Criminal Law - Topic 5898.2

Sentence - Breach of long-term supervision order - In 2003, Ladue, an aboriginal, was sentenced to three years' imprisonment for breaking into a dwelling house and committing sexual assault - It was Ladue's fourth conviction for similar sexual offences, all involving the consumption of alcohol or drugs - His criminal record included 40 prior convictions - The Crown sought a long-term offender designation, which was conceded by Ladue - The trial judge imposed a seven-year long-term supervision order - Ladue was released on his long-term supervision order in December 2006 - In June 2007, he was convicted of two counts of breaching the order and sentenced to six months on each count (concurrent), with credit for four and one half months of pre-sentence custody - In June 2008, he was convicted of a third breach of his long-term supervision order and sentenced to one day in custody, with credit for one year of pre-sentence custody - All three breaches were violations of the condition that he abstain from the consumption of intoxicants - Ladue's supervision order was suspended a number of times in 2008 and 2009 - He was released from custody in August 2009 - He expected to be sent to Linkage House in Kamloops, B.C., a residential halfway house where he anticipated receiving considerable support - However, he was instead placed in Belkin House in downtown Vancouver, which put him back into a milieu where he was tempted by drugs - He tested positive more than once for morphine and cocaine - He pled guilty to breaching his long-term supervision order and was sentenced to an additional three years' imprisonment - Ladue appealed that sentence - The British Columbia Court of Appeal allowed the appeal and reduced the sentence to one year - The sentencing judge made two errors which led her to impose a demonstrably unfit sentence - The first was the failure to give sufficient weight to Ladue's circumstances as an aboriginal offender - The second was her overemphasis on isolation or separation from the community and her failure to give sufficient emphasis to the principles of rehabilitation and proportionality - The sentence of three years was not proportionate to the gravity of the offence and the degree of responsibility of Ladue, when one considered his background and how he arrived at Belkin House instead of Linkage House - The Supreme Court of Canada dismissed the Crown's sentence appeal and affirmed the one year sentence - The Court of Appeal properly analyzed and applied the Gladue principles respecting the sentencing of aboriginal offenders - See paragraphs 94 to 97.

Cases Noticed:

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, appld. [para. 1].

R. v. Wilmott (1966), 58 D.L.R.(2d) 33 (Ont. C.A.), refd to. [para. 36].

R. v. Solowan (K.S.T.), [2008] 3 S.C.R. 309; 381 N.R. 191; 261 B.C.A.C. 27; 440 W.A.C. 27; 2008 SCC 62, refd to. [para. 36].

R. v. Nasogaluak (L.M.), [2010] 1 S.C.R. 206; 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 36].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 37].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 38].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 41].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 47].

R. v. H.P.W. (2003), 327 A.R. 170; 296 W.A.C. 170; 175 C.C.C.(3d) 56; 18 Alta. L.R.(4th) 20 (C.A.), disagreed with [para. 49].

R. v. Nelson, [2007] O.J. No. 5704 (C.J.), disagreed with [para. 49].

R. v. Deacon (S.) (2004), 193 B.C.A.C. 228; 316 W.A.C. 228; 2004 BCCA 78, refd to. [para. 55].

R. v. Laliberte (M.R.) (2000), 189 Sask.R. 190; 216 W.A.C. 190; 2000 SKCA 27, refd to. [para. 60].

R. v. Wells (J.W.), [2000] 1 S.C.R. 207; 250 N.R. 364; 250 A.R. 273; 213 W.A.C. 273; 2000 SCC 10, refd to. [para. 71].

R. v. Vermette (I.M.) (2001), 156 Man.R.(2d) 120; 246 W.A.C. 120; 2001 MBCA 64, refd to. [para. 71].

R. v. Skani (J.E.) (2002), 331 A.R. 50; 2002 ABQB 1097, refd to. [para. 73].

R. v. Poucette (M.) (1999), 250 A.R. 55; 213 W.A.C. 55; 1999 ABCA 305, disagreed with [para. 81].

R. v. Gladue (W.R.), [1999] A.R. Uned. 347; 46 M.V.R.(3d) 183; 1999 ABCA 279, refd to. [para. 81].

R. v. Andres (A.J.) (2002), 223 Sask.R. 121; 277 W.A.C. 121; 2002 SKCA 98, refd to. [para. 81].

R. v. Collins (S.) (2011), 277 O.A.C. 88; 2011 ONCA 182, refd to. [para. 82].

R. v. Jack (K.E.) (2008), 261 B.C.A.C. 245; 440 W.A.C. 245; 2008 BCCA 437, refd to. [para. 82].

R. v. Carrière (P.J.) (2002), 158 O.A.C. 36; 164 C.C.C.(3d) 569 (C.A.), refd to. [para. 84].

R. v. Kakekagamick (M.R.) (2006), 214 O.A.C. 127 (C.A.), refd to. [para. 85].

R. v. Jensen (M.) (2005), 196 O.A.C. 119 (C.A.), refd to. [para. 85].

R. v. Abraham (C.H.) (2000), 261 A.R. 192; 225 W.A.C. 192; 2000 ABCA 159, refd to. [para. 85].

Authors and Works Noticed:

Brodeur, Jean-Paul, On the Sentencing of Aboriginal Offenders: A Reaction to Stenning and Roberts (2002), 65 Sask. L. Rev. 45, p. 49 [para. 78].

Canada, Department of Justice, Strategies for Managing High-Risk Offenders: Report of the Federal/Provincial/Territorial Task Force on High-Risk Violent Offenders (1995), generally [para. 43].

Canada, Hansard, House of Commons Debates (1st Sess., 35th Parl.) (Sept. 1994), vol. 133, p. 5876 [para. 70].

Canada, Hansard, Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, No. 62 (1st Sess., 35th Parl.) (Nov. 17, 1994), p. 15 [para. 56].

Canada, Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada (1996), p. 309 [para. 57].

Carter, Mark, Of Fairness and Faulkner (2002), 65 Sask. L. Rev. 63, p. 71 [para. 78].

Jackson, Michael, Locking Up Natives in Canada (1988-1989), 23 U.B.C. L. Rev. 215, pp. 215, 216 [para. 57].

Manitoba, Public Inquiry into the Administration of Justice and Aboriginal People, Report of the Aboriginal Justice Inquiry of Manitoba, The Justice System and Aboriginal People (1991), vol. 1, pp. 110, 111 [para. 69]; 394 [para. 57].

Pelletier, Renée, The Nullification of Section 718.2(e): Aggravating Aboriginal Over-representation in Canadian Prisons (2001), 39 Osgoode Hall L.J. 469, p. 479 [para. 86].

Quigley, Tim, Some Issues in Sentencing of Aboriginal Offenders, in Richard Gosse, James Youngblood Henderson and Roger Carter, eds., Continuing Poundmaker and Riel's Quest: Presentations Made at a Conference on Aboriginal Peoples and Justice (1994), pp. 275, 276 [para. 67]; 286 [para. 79].

Roach, Kent, One Step Forward, Two Steps Back: Gladue at Ten and in the Courts of Appeal (2008-2009), 54 Crim. L.Q. 470, p. 472 [para. 84].

Roberts, Julian V., and Melchers, Ronald, The Incarceration of Aboriginal Offenders: Trends from 1978 to 2001 (2003), 45 Can. J. Crim. & Crim. Just. 211, p. 226 [para. 62].

Rudin, Jonathan, Aboriginal Over-representation and R. v. Gladue: Where We Were, Where We Are and Where We Might Be Going, in Jamie Cameron and James Stribopoulos, eds., The Charter and Criminal Justice: Twenty-Five Years Later (2008), p. 701 [para. 62].

Rudin, Jonathan, Addressing Aboriginal Overrepresentation Post-Gladue: A Realistic Assessment of How Social Change Occurs (2008-2009), 54 Crim. L.Q. 447, p. 452 [para. 62].

Rudin, Jonathan, and Roach, Kent, Broken Promises: A Response to Stenning and Roberts "Empty Promises" (2002), 65 Sask. L. Rev. 3, p. 20 [para. 66].

Stenning, Philip, and Roberts, Julian V., Empty Promises: Parliament, the Supreme Court, and the Sentencing of Aboriginal Offenders (2001), 64 Sask. L. Rev. 137, pp. 158 [para. 76]; 160 [para. 68]; 162 [para. 72]; 167 [para. 65].

Counsel:

Fergus J. (Chip) O'Connor, for the appellant, Manasie Ipeelee;

Gillian E. Roberts, for the respondent, Her Majesty the Queen;

Susanne Boucher and François Lacasse, for the intervenor, Director of Public Prosecutions;

Jonathan Rudin and Amanda Driscoll, for the intervenor, Aboriginal Legal Services of Toronto Inc;

Mary T. Ainslie, for the appellant, Her Majesty the Queen;

Hovan M. Patey, Laurence D. Myers, Q.C., and Kristy L. Neurauter, for the respondent, Frank Ralph Ladue;

Written submissions only by Kent Roach and Kelly Doctor, for the intervenor, British Columbia Civil Liberties Association;

Written submissions only by Clayton C. Ruby, Nader R. Hasan and Gerald J. Chan, for the intervenor, Canadian Civil Liberties Association.

Solicitors of Record:

Fergus J. (Chip) O'Connor, Kingston, Ontario, for the appellant, Manasie Ipeelee;

Attorney General of Ontario, Toronto, Ontario, for the respondent, Her Majesty the Queen;

Public Prosecution Service of Canada, Iqaluit, Nunavut, for the intervenor, Director of Public Prosecutions;

Aboriginal Legal Services of Toronto Inc., Toronto, Ontario, for the intervenor, Aboriginal Legal Services of Toronto Inc.;

Attorney General of British Columbia, Vancouver, B.C., for the appellant, Her Majesty the Queen;

Myers, McMurdo & Karp, Vancouver, B.C., for the respondent, Frank Ralph Ladue;

University of Toronto, Toronto, Ontario, for the intervenor, British Columbia Civil Liberties Association;

Ruby, Shiller, Chan, Toronto, Ontario, for the intervenor, Canadian Civil Liberties Association.

These appeals were heard on October 17, 2011, before McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella and Rothstein, JJ.

On March 23, 2012, the judgment of the Court was delivered in both official languages and the following opinions were filed:

LeBel, J. (McLachlin, C.J.C., Binnie, Deschamps, Fish and Abella, JJ., concuring) - see paragraphs 1 to 98;

Rothstein, J., dissenting in part - see paragraphs 99 to 157.

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    • Canada
    • Irwin Books Mental Disorder and the Law. A Primer for Legal and Mental Health Professionals
    • 24 Junio 2017
    ...NJ No 89 (CA) ....................................................................................................... 318 R v Ipeelee, [2012] 1 SCR 433 ..................................................................................... 340 R v Isaac (2009), 250 CCC (3d) 565 (Ont Ct J)…… .......
  • Table of Cases
    • Canada
    • Irwin Books The Law Society of Upper Canada Special Lectures 2017
    • 24 Junio 2021
    ...R v Imperial Tobacco Canada Ltd, 2011 SCC 42 ......................................................41 R v Ipeelee, 2012 SCC 13 ............................................................................................ 111 R v Jackson, 2015 ONCA 832 ..............................................
  • IPEELEE AND THE DUTY TO RESIST.
    • Canada
    • 1 Agosto 2018
    ...Certain Public Services. ([double dagger]) SJD, Full Professor, Faculty of Law (Civil Law Section), University of Ottawa. (1) R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433 (2) R v Charlette, 2015 MBCA 32 , 2015 CarswellMan 163 . (3) Ibid at para 13. (4) Ibid at para 3. (5) The official goa......
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