R. v. Ipeelee

Supreme Court of Canada – [2012] 1 S.C.R. 433


Nunavut Criminal law
Summary

This decision determines the principles to be taken into account with regards to sentencing Aboriginal offenders for breach of long-term supervision orders (LTSOs).

In order for a sentencing decision made with regards to an Aboriginal offender to be upheld by a higher court, it must take into account his or her special circumstances as mandated by s. 718.1(e) of the Criminal Code.

Quote

The sentencing judge has a statutory duty, imposed by s. 718.2(e) of the Criminal Code, to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. (para. 87 of the decision)

Issue

  1. What are the principles governing the sentencing of Aboriginal offenders?
  2. How do those principles apply to the breach of an LTSO?
  3. Are the sentences imposed on either Mr. Ipeelee or Mr. Ladue unfit or made in error?

Decision

The sentencing judge must consider the background factors which may have brought the Aboriginal offender before the courts and decide which sanctions may be appropriate in the circumstances. This obligation applies to all offences, including breaches of LTSOs.

 In Ipeelee’s case, the sentencing judge failed to take into consideration his special circumstances, and so the sentence must be reduced. In the case of Mr. Ladue, his history was taken into consideration and so the sentence imposed was appropriate (6 against 1).

Parties

Between: Manasie Ipeelee

And: la Couronne du Canada

Interveners: Director of Public Prosecutions and Aboriginal Legal Services of Toronto Inc.

 

Between: la Couronne du Canada

And: Frank Ralph Ladue

Interveners: British Columbia Civil Liberties Association and Canadian Civil Liberties Association

Facts

Ipeelee

Ipeelee is an Inuk. His mother passed away when he was five years old. He was raised by his grandparents, who are now deceased. He began drinking at 11 years of age. He became involved with the criminal justice at age 12, accumulating a total of roughly three dozen convictions on his youth record. His adult record contains 24 convictions, for crimes mostly related to property.

Between 1992 and 1994, Ipeelee pleaded guilty to three separate charges of assault causing bodily harm and was sentenced to incarceration. He was under the influence of alcohol during the commission of the three offences. Three weeks after his early release in 1995, he sexually assaulted a woman while under the influence of alcohol. He was sentenced to two years’ imprisonment. Corrections Canada found him to be a high risk to reoffend, and so he remained in custody until 1999.

In August, 1999, Mr. Ipeelee committed sexual assault while intoxicated, this time causing bodily harm.

He was diagnosed as having both an antisocial personality disorder and a severe alcohol abuse disorder. He was then designated a long-term offender with a substantial risk of reoffending and was sentenced to six year’s imprisonment and a 10-year LTSO.

In 2008, Ipeelee was charged with a breach of his LTSO for driving erratically while intoxicated and in possession of alcohol. He subsequently pleaded guilty.

Ladue

Ladue is a member of River Ross Dena Council Band. His parents were both alcoholics and died when he was very young. He was raised by his grandparents.

He attended a residential school from when he was five to when he was nine. Upon his return, he could no longer communicate with his grandparents as a result of having forgotten his language. He then began to drink heavily.

Since turning 16, Ladue has accumulated more than 40 convictions, 10 of which were on his youth record. These crimes were related to property, alcohol, assault and sexual assault. He was a heavy drinker his entire life, excluding 6 years of sobriety in which he had no convictions. He began to consume heroine, morphine and cocaine during his incarceration in a federal penitentiary.

In 1987 and 1997, Ladue committed sexual assault while intoxicated. In 1998, he was interrupted in what was seemingly another attempt at sexual assault. There was no conviction.

In 2002, Ladue was convicted of breaking and entering and sexual assault. He was diagnosed as a sexual sadist and as having an antisocial personality disorder and was designated a long-term offender with a substantial risk of reoffending. He was sentenced to three years’ imprisonment and a 7-year LTSO.

In 2009, he was released from prison. Due to an administrative error by Crown officials, he was sent to Belkin House instead of the Linkage House, where he was supposed to receive support from an Aboriginal elder. Two urine samples taken after Mr. Ladue was transferred to the Belkin House tested positive for cocaine. He was charged with breaching a condition of his LTSO and pleaded guilty in early 2010.

Arguments

Ipeelee and Ladue: The lower courts erred in neglecting to consider the offenders’ special circumstances as Aboriginals. The sentences must therefore be diminished.

 The Crown of Canada: The sentences are reasonable and therefore should not be modified by the Court.

Decision of the lower courts

Ipeelee

The Ontario Court of Justice: Ipeelee is sentenced to three years’ imprisonment. The protection of the public is of paramount importance, and so the objective of rehabilitation is secondary.

The Ontario Court of Appeal: Agreed that Ipeelee committed a serious breach of a vital condition of the LTSO. The Aboriginal status of Ipeelee should not affect the sentence.

Ladue

The Provincial Court of British Columbia: Ladue is sentenced to three years’ imprisonment. Isolation is the most sentencing important objective in this case. Ladue’s history should not impact the sentence.

The Court of Appeal for British Columbia: Ladue’s sentence is reduced to one year of imprisonment. More weight should have been given to the sentencing objective of rehabilitation and to the background of Ladue.

Reasons for Judgement

Jury

McLachlin, Binnie, LeBel, Deschamps, Fish, Abella

Reason

The key principle when it comes to sentencing is that the sentence must be proportionate to both the gravity of the offence and the level of moral responsibility of the offender.

As set out by the Criminal Code, a person who is at a substantial risk of reoffending is designated a long-term offender and sentenced to at least two years’ imprisonment with an LTSO not exceeding 10 years. Ultimately, the goal of the LTSO is both to protect society and to rehabilitate the offender and reintegrate him or her in the community.

Sentencing according to the Gladue case

Pursuant to s. 718.2(e) of the Criminal Code, sentencing judges must take into consideration an offender’s Aboriginal status when determining the sentence. This provision was adopted in order to redress the problem of overrepresentation of Aboriginal people in prisons.

The sentencing 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.

These factors provide the context for understanding and evaluating the cases of Aboriginal offenders, without forcibly justifying a different sentence.

The correct application of Gladue

There no need to establish a causal link between background factors and the offence committed, as they do not serve as a justification or an excuse.

Secondly, the principles of sentencing for Aboriginals, as set out in Gladue, apply to serious offences. Sentencing judges have the duty to apply s. 718.2(e) and consider the unique circumstances of Aboriginal offenders in every case involving an Aboriginal offender, although they reserve the discretion to determine the sentence.

Ipeelee and Ladue

It is erroneous to make protection of the public the most important sentencing objective, to the detriment of the objective of rehabilitation. A suitable sentence for Ipeelee would therefore be that of one year.

The unique circumstances of Ladue as an Aboriginal offender make it clear that rehabilitation is an important objective, accordingly to the sentencing judge’s conclusion. An appropriate sentence would therefore be that of one year.

Impact

This case reaffirmed the sentencing judge’s duty to take into account the circumstances of Aboriginal offenders in all cases, regardless of the offence committed. Furthermore, the Court holds sentencing judges accountable for correcting the discrimination in the criminal justice system that has resulted in the over-representation of Aboriginals in Canadian prisons. However, Crown attorneys retain their discretion as to with which charge to proceed, and their decisions are not subject to review.

This judgement comes at a time when the discretion of sentencing judges is limited more than ever, as a result of legally imposed minimum sentences. This decision did not address whether s. 718.1(e) takes precedence over minimum sentences or vice versa. Certain authors anticipate an incoming deluge of Charter challenges of these sentences, as they can be found to violate the right to life and liberty (s. 7), the right not to be subjected to cruel or unusual punishment (s. 12), and, more particularly in the case of Aboriginal offenders, the right to equality (s. 15(1)). The argument can be made that the imposition of minimum sentences exacerbates the already dire situation of Aboriginal over-representation in Canadian prisons as a result of discrimination.

The Court was categorical that the Aboriginal defendant does not have the burden of proving a “causal link” between background factors and the commission of the offence. However, the Court did make mention of a “tie” between the two, without defining what that means in concrete terms. It remains to be seen how much evidence is necessary to support a “tie” without having to prove causation.

Related Cases

Applies and clarifies the principles set out in: R. v. Gladue, [1999] 1 S.C.R. 688


Sources

Quayat, David and Shannon O’Connor. 2012. “The unfinished work in aboriginal sentencing.” The Lawyers Weekly 32 (23).

Rudin, Jonathan. 2012. “Looking Backward, Looking Forward: The Supreme Court of Canada’s Decision in R. v. Ipeelee.” Supreme Court Law Review 57 (2d).

Sewrattan, Christopher. 2013. “Apples, Oranges, and Steel: The Effect of Mandatory Minimum Sentences for Drug Offences on the Equality Rights of Aboriginal Peoples.” University of British Columbia Law Review 46: 121-155.

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