R. v. Ipeelee: Correction, Conviction and Culture
R. v. Ipeelee, 2012 SCC 13 [Ipeelee], is a difficult case. As with most criminal cases, the facts of the case are difficult to stomach: a dizzying confluence of alcohol and drugs and then bursts of violence, particularly against women. Raised without parental guidance in an abusive home, the two defendants, both of whom are of Aboriginal descent, endured a difficult upbringing. Thus, the sentencing decision that the Court has to make becomes impossibly difficult.
Facing the harsh reality that men and women of Aboriginal descent are more likely to end up in prison than any other group in Canada, six justices on the Supreme Court of Canada reiterated the need to fully acknowledge the oppressive environment faced by Aboriginals from the day they are born in Canada. Thus, the lower courts need to implement more lenient, more creative solutions that are in line with the distinct culture of the defendants (i.e. consultations with an Aboriginal Elder). Even though this may seem novel, the Court argues that they are merely reaffirming the 1999 decision in R v. Gladue,  1 SCR 688 [Gladue] ; Gladue held that the Court must hand down sentences that recognize the unique histories of these Aboriginal offenders. Furthermore, Section 718.2(e) of the Criminal Code, RSC 1985, c C-46, directs judges to use a different method of analysis in determining the most appropriate sentence. Justice Rothstein, the lone dissenter in this case, provides a counterargument: the safety of the public is of paramount importance.
However, to view this case as a balancing act between the right to special treatment of Aboriginal men and women in Canada against the right to public safety is to distort the real issue. The Court is carving out a space for Aboriginal offenders that does not only accord with their heritage, but also with our strong commitment to justice for everyone.
A Spotty Record:
One of the reasons why the decision in R. v. Ipeelee was not readily embraced by the court of public opinion is that the two defendants had seriously disturbing criminal records. One of the defendants, Manasie Ipeelee, is a 39-year-old Inuk from Iqaluit. His alcoholism started at the age of 12 after his alcoholic mother died when he was a child. By his 19th birthday, he had 36 convictions, most of which were fueled by his alcoholism. One conviction was for sexual assault; he sexually assaulted a homeless woman while punching her in the face. The other defendant, Frank Ladue, is a 50-year-old man from Ross River Dena Council, a community north of Whitehorse. Sent to residential school since the age of five, he began drinking at nine, followed quickly by hard drugs. His crime record includes numerous sexual assaults against women who were typically drunk or unconscious. The main focus of the case before the Supreme Court of Canada, however, was their long-term supervision order (“LTSO”), which followed their earlier convictions. Both men, however, broke the terms of the LTSO, so the judge had to resentence them. The judge subsequently sentenced them to three years’ imprisonment, less a certain number of months at a certain credit rate. More narrowly, then, the issue in the case
“is how to determine a fit sentence for a breach of an LTSO in the case of an Aboriginal offender in particular” (para 34).
The majority of the justices emphasize that sentencing is more of an art than a formula. Sure, there are provisions in the Criminal Code that help judges in deciding if and how to weigh certain factors, such as previous convictions:
“The Criminal Code goes on to list a number of principles to guide sentencing judges. The fundamental principle of sentencing is that the sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender” (para 36).
The designation of long-term offender, coupled with the long-term supervision order, helps to fulfill the purpose of sentencing set out in Section 718. The LTSO, as a form of conditional release, furthers
“the maintenance of a just, peaceful and safe society by facilitating the rehabilitation and reintegration of long-term offenders” (para 47).
A breach of the LTSO is regarded more gravely by the state; a lengthy maximum sentence usually follows.
This degree of severity, however, should be tempered by a contextual approach to sentencing Aboriginal offenders.
“Section 718.2(e) of the Criminal Code directs that ‘all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders [underlining in the original] (para 56),’”
begins Justice LeBel. One of the reasons for the introduction of this provision in 1996 is the sad reality that Aboriginal inmates account for 10% of the prison population, while only 2% of the greater population in Canada. (My colleague, Ajit Singh, provides an insightful commentary on Section 718.2(3) here.)
With the Gladue case, the Court finally had the opportunity to assess how the provision should be applied in terms of sentencing Aboriginal offenders. Section 718.2(e) of the Code is more than a remedial provision designed to ameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons. It encourages sentencing judges to have recourse to a restorative approach to sentencing (para 93); “it calls upon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders” (para 59), Justice Lebel summarizes. He continues, citing the judgment in Gladue:
“Section 718.2(e) directs sentencing judges to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non-Aboriginal offenders” (para 37).
What Gladue specifically entails is as follows:
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 (para 66).
What is further emphasized in Gladue is the fact that judges must weigh additional case-specific information, in addition to taking judicial notice of broad systemic and background factors (paras 83-84).
This ambitious enterprise, laid out in Section 718.2(e) of the Criminal Code and then in Gladue, has not achieved its goals, regrettably. The majority of the justices in Ipeelee note that overrepresentation and alienation of Aboriginal people in prison has only worsened in the years following Gladue. Lead by Justice LeBel, this is a call for action.
Application to the Case:
After surveying decisions in which the Gladue principle was misapplied, and even considering the multitude of reasons as to why Aboriginal sentencing is misunderstood in Canada, the Court reiterates the need to uphold their earlier decision in R. v. Gladue.
Applying Gladue, the Court replaces the three-year sentence handed down by the Court of Appeal to Ipeelee with a one-year sentence. They note that there were few culturally-relevant support systems in place in Kingston, Ontario, where he was residing at the time he violated his LTSO. As well, given the fact that Ipeelee had started abusing alcohol at such an early age, one relapse eighteen-months into his LTSO should not be seen as so grave. The one-year sentence would give him enough time to get back on track in his alcohol treatment, while continuing to emphasize the need to abstain from drinking after his prison sentence. In the case of Ladue, the Court agrees with the appellate court that he should serve a one-year sentence for breaking the conditions of his LTSO. The Supreme Court of Canada underlines the benefits of treatment that would allow Ladue access to “culturally-relevant programming and the resources of an Elder” (para 96).
Not about Balance, but Justice:
Justice Rothstein voices his dissatisfaction with the majority opinion. Essentially, he regards the project before the Court as one of balancing interests:
“In my opinion, Parliament has said that protection of society is the paramount consideration when it comes to such sentencing. Elevating rehabilitation and reintegration into society to a more significant factor diverts the sentencing judge from adhering to the expressed intention of Parliament” (para 100).
He, therefore, sets the interests of public safety and the interests of rehabilitating and reintegrating into society Aboriginal offenders on a crash course. Conceptualized as such, it becomes almost impossible to tip the scales in favour of the Aboriginal offenders.
But that is not the point. The overarching goal of Section 718 of the Criminal Code and the Gladue decision are not to separate Canadians into two camps with two competing interests, but rather to unite them together with the shared goal of “a just, peaceful and safe society.” In the same way that it is not just Aboriginals who benefit from a safer society, it is not just non-Aboriginals who deserve justice in Canada. Given the history of colonialism and systematic abuses suffered by Aboriginal Canadians, the Supreme Court of Canada had the opportunity to meaningfully recognize these unique hardships and, more importantly, to continue the arduous task of remedying them.