TEN YEARS LATER AND LIMITED EVIDENCE OF PROGRESS: AN EMPIRICAL ANALYSIS OF THE EFFECT OF R VIPEELEE ON THE SENTENCING OF INDIGENOUS OFFENDERS CONVICTED OF MANSLAUGHTER.

• Author: CA'ta, David

I INTRODUCTION 162 II THE HISTORY OF BILL C-41, GLADUE AND 164 IPEELEE A. Bill C-41 and R v Gladue: The First Attempt 164 B. The Failure of the Gladue Principles 165 C. R v Ipeelee: The Court's Second Try 166 D. Reason to Believe that Little Has Changed 166 III METHODS 167 A. Study Design 167 B. Unpacking a Segmented Linear Regression Analysis 169 C. Justifying the Chosen Control Variables 171 IV RESULTS 172 A. Primer on the Results of a Regression Analysis 172 B. Sentence Length 173 C. Sentence Type 176 V DISCUSSION & IMPLICATIONS 177 A. Understanding Why Ipeelee Has Not Changed 177 Sentencing Practices B. Limitations 183 C. Next Steps 184 VI CONCLUSION 185 VII APPENDIX: CASES INCLUDED IN THE ANALYSIS 186 I INTRODUCTION

The over-incarceration of the Indigenous peoples of Canada is one of the country's oldest and most vexing human rights issues. Indigenous people make up 32% of the population in Canadian correctional institutions, (1) despite only constituting 5% of the general population. (2) This level of over-representation, reported in December 2021, is the highest in recorded history. (3)

In 1996, the federal government notoriously attempted to address this issue by adding section 718.2(e) to the Criminal Code. Section 718.2(e) directs judges to consider alternative (i.e., non-imprisonment) sentences for Indigenous offenders. (4) Three years later, in R v Gladue, the Supreme Court of Canada set out several criteria to guide judges regarding the culturally sensitive application of section 718.2(e). (5) Unfortunately, both section 718.2(e) and the instructions in Gladue (hereinafter, the "Gladue principles") were nearly unanimously deemed failures. The rates of Indigenous incarceration continued to rise, and courts applied the Gladue principles inconsistently. In 2012, the Supreme Court in R v Ipeelee acknowledged these failures and sought to clarify how the Gladue principles should be applied. (6) In doing so, the Court aspired to help remedy the problem of Indigenous over-incarceration.

Whether sentencing practices changed after Ipeelee remains poorly understood. The goal of this paper is to assess whether there has been any change in sentence length and type imposed on Indigenous offenders in Canada post-Ipeelee. To answer this question, I review all manslaughter cases involving Indigenous offenders since the Gladue decision was released and compare sentence lengths and types given to offenders before and after Ipeelee using a segmented regression analysis.

Manslaughter was chosen as the proxy to begin understanding the effects of Ipeelee for two main reasons. First, manslaughter does not carry any mandatory minimum or maximum sentence (unless committed with a firearm; then, the offence carries a minimum 4 years of imprisonment). (7) Mandatory minimum and/or maximum sentences could obfuscate an analysis of post-Ipeelee sentencing practices because they require judges to impose certain sentences, irrespective of one's particular characteristics or circumstances. Sentencing for offences with no mandatory minimum or maximum imprisonment is highly discretionary and leaves room for the application of the Gladue principles. Second, as described below, Ipeelee clarified that the Gladue principles are to be applied in cases involving serious offences, such as manslaughter. Thus, studying manslaughter provides an opportunity to understand if Ipeelee successfully changed post-Gladue sentencing practices as regards serious offences.

In brief, I find no statistically significant difference in sentence length and type given to Indigenous offenders post-Ipeelee, controlling for the effects of time, the gender of the offender, the gender of the victim, whether the victim and offender had an intimate partner relationship, whether a Gladue report was provided for the offender, whether the offender had a prior criminal record, whether the offender used a firearm, whether the offender used a non-firearm weapon, and whether the offender entered a guilty plea. I also find no statistically significant difference in sentence length and type given to Indigenous offenders who had Gladue reports, compared to those who did not have Gladue reports, adjusted for the same control variables.

I begin my analysis in Section II by reviewing the history of section 718.2(e), Gladue and Ipeelee. In Section III, I describe the methodology I employed to study this question. In Section IV, I report the results of my analysis. In Section V, I discuss how my results shed light on possible reasons why courts may be failing to implement Ipeelee and the Gladue principles. Finally, in Section V, I explore the limitations of this work and recommend steps for future research.

II THE HISTORY OF BILL C-41, GLADUE AND IPEELEE

1. BILL C-41 AND R V GLADUE: THE FIRST ATTEMPT

   In 1996, the federal government passed Bill C-41, adding section 718.2(e) to the Criminal Code. Section 718.2(e) directs courts to consider "all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community with particular attention to the circumstances of Aboriginal offenders." (8) Parliament explicitly referred to "Aboriginal offenders," according to then-Minister of Justice Allan Rock, because they are "sadly overrepresented in the prison populations of Canada." (9)

   Three years later, in Gladue, the Supreme Court of Canada provided insight on how judges should apply section 718.2(e). (10) The Court recognized that they could not fix the entire over-incarceration problem through sentencing. (11) Instead, they aimed to ensure courts imposed the most appropriate sentence for each offender. (12) By determining an appropriate sentence, courts could determine the sanction that could meaningfully deter and denounce crime to the offender and their community. (13) Justices Cory and Iacobucci, writing for the court, explained that when sentencing Indigenous offenders, judges must pay particular attention to two factors:

   "(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." (14) The Court encouraged judges to focus on community-based sanctions and apply a restorative justice approach which seeks to heal the offender, the victims, and their community. (15) If, however, an alternative to incarceration could not be provided, then judges were directed to carefully consider the length of the sentence being imposed. (16) The Court qualified this rule by noting that section 718.2(e) applies to all offences, but "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." (17)

2. THE FAILURE OF THE GLADUE PRINCIPLES

   In the following years, the Gladue principles did not have their intended effect. (18) As pointed out by the Court in Ipeelee, the problem was only getting worse:

   In the immediate aftermath of Bill C-41, from 1996 to 2001, Aboriginal admissions to custody increased by 3 percent while non-Aboriginal admissions declined by 22 percent [...]. From 2001 to 2006, there was an overall decline in prison admissions of 9 percent. During that same time period, Aboriginal admissions to custody increased by 4 percent [...] 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. (19) Interestingly, during this period, there were few empirical analyses conducted regarding the effect of Gladue. (20) Rather, criticisms of Gladue were almost exclusively based on the number of Indigenous people in prison as compared to the general population.

   There are three general explanations for the failure of the Gladue principles. First, some courts rejected the instructions of the Supreme Court and neglected to take account of an Indigenous offender's circumstances. (21) Second, many courts believed that the Gladue principles only became applicable when Indigenous offenders could prove a causal connection between their Indigenous background and the crime they committed; this evidentiary burden was very hard to overcome and, hence, many offenders did not receive the benefits of section 718.2(e). (22) Third, several courts declined to apply the Gladue principles to violent offences, relying heavily on the Supreme Court's words from Gladue 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." (23)

3. R V IPEELEE: THE COURT'S SECOND TRY

   In Ipeelee, based on the statistics cited above, the Supreme Court recognized that the Gladue principles had no "discernible impact on the overrepresentation of Indigenous people in the criminal justice system." (24) Thus, in Ipeelee, the Court tried to clarify the Gladue principles and resolve their limitations. Justice Lebel, writing for the majority, began by reaffirming Gladue and explained that judges must consider the two principles described above when sentencing an Indigenous offender. (25) The Court maintained their position that appropriate sentencing can help remedy over-incarceration "by imposing sentences that effectively deter criminality and rehabilitate offenders." (26)

   The Court then addressed the three causes of the failure of Gladue identified above. First, they explained that a sentencing judge does not have any discretion in choosing whether or not to apply the Gladue principles and section 718.2(e); whether they agree with it or not, it is their duty. (27) Second, they declared that a causal link is not necessary...