Spotlight on Gladue: Challenges, Experiences, and Possibilities in Canada’s Criminal Justice System

2. Statistical Overview on the Overrepresentation of Indigenous Persons in the Canadian Correctional System and Legislative Reforms to Address the Problem

2.1 Statistical Overview

The overrepresentation of Indigenous persons in Canadian prisons began at the end of the Second World War (Rudin 2008) and remains a well-documented reality based on abundant scientific and statistical documentation (Department of Justice Canada 2017). A quick look at the recent statistical data shows that the measures taken to combat this reality have not yet produced the desired results. Compared to all other categories of accused persons, Indigenous people continue to be jailed younger, denied bail more frequently, granted parole less often and hence released later in their sentence, over-represented in segregation, overrepresented in remand custody, and more likely to be classified as higher risk offenders. They are more likely to have needs in categories like employment, community integration, and family supports (Parkes 2012; Green 2012).

Although Indigenous adults represent only about 3% of the adult population in Canada, they are overrepresented in admissions to provincial and territorial correctional services; in 2015-2016, they accounted for 26% of admissions (Statistics Canada 2016). Among women, 38% of those admitted to provincial and territorial sentenced custody were Indigenous, while the comparable figure for men was 26% of admissions identified as Indigenous (ibid.). In the federal correctional services, Indigenous women accounted for 31% of female admissions to sentenced custody, while Indigenous men accounted for 23% of admissions (ibid.).

The discrepancies between Indigenous and non-Indigenous incarceration rates are more pronounced in certain jurisdictions than in others (see Table 1). For example, while the proportion of Indigenous persons sentenced to imprisonment is double their representation in the Québec population, in Saskatchewan the proportion of Indigenous inmates is roughly seven times higher than their representation in the provincial population. Although the problem of overrepresentation of Indigenous adults in corrections is a general problem in most jurisdictions, particularly for remand and sentenced custody, the problem is more pronounced in the Western provinces.

Table 1: Indigenous AdultsFootnote 4 as a Proportion (%) of Admissions to Remand, Provincial or Territorial Sentenced Custody, Probation and Conditional Sentences, by Jurisdiction, 2013-2014Footnote 5
Provinces/Territories Sentenced Custody Remand Other Temporary Detention

Newfoundland and Labrador

23.2%

30.3%

3%

Prince Edward Island

1.7%

6%

--

Nova Scotia

10%

12.2%

12.8%

New Brunswick

9%

10.5%

10%

Québec

3.5%

5.2%

1.3%

Ontario

12%

13.3%

6.7%

Manitoba

77%

74.6%

69.3%

Saskatchewan

78%

76%

62.4%

Alberta

--

--

--

British Columbia

32.6%

29.6%

18%

Yukon

75.6%

73.3%

55%

Northwest Territories

89%

88%

0%

Nunavut

98%

96%

0%

The situation is not very different for Indigenous youth. Although Indigenous youth between the ages of 12-17 comprise only 7% of all adolescents in the general population, in 2014-2015, about 35% of youth admitted to correctional services were Indigenous (Statistics Canada 2017). Indigenous girls accounted for 44% of female youth admitted, and Indigenous boys accounted for 29% of male adolescents admitted. Although the Youth Criminal Justice Act mandates that the Court must consider alternatives to custody for Indigenous youth, in 2015/2016, 54% of Indigenous youth in correctional services were admitted to custody whereas the comparable figure for non-Indigenous youth was 44% (ibid.). The proportion of Indigenous youth admissions to custody has grown over time: in 2011-2012, 48% of Indigenous youth involved in the correctional system were admitted to custody; in 2014/2015, the number had grown to 52% (ibid.).

Overall, the percentage of both Indigenous youth and adults in correctional services significantly exceeded their representation in the general population (see Table 2).

Table 2: Percentage of Indigenous Adults and Youth Admitted to Correctional ServicesFootnote 6
Correctional Services AdultsFootnote 7 YouthFootnote 8

Canadian population

3%

7%

Remand

25%

36%

Federally sentenced custody

25%

33%

Community sentence

24%

29%

2.2 Legislative Reforms to Address the Problem of Indigenous Overrepresentation in the Prison System

In 1996, Bill C-41 introduced significant reforms to sentencing, a culmination of more than a decade of federal government review of the criminal justice system (BCCLA 2014). The new Criminal Code provisions codified objectives and principles of sentencing, recognizing the significant increase in the general incarceration rates in Canada and the disproportionate levels in the number of Indigenous persons in penal institutions (Daubney and Parry 1999). Among the new provisions, two are particularly noteworthy: (1) the introduction of conditional sentences and (2) the special reference to sentencing Indigenous offenders. Section 718.2(e) of the Criminal Code states that sentencing courts must take into consideration the following principle:

(e) 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.

These amendments were, to some extent, a response to the high incarceration rates for non-violent crimes and the frequent use of custodial sentences for Indigenous individuals (Daubney and Parry 1999). However, Bill C-41 did not provide judges with specific sentencing guidelines. Parliament left it up to the courts to clarify both the use of conditional sentences and the application of s. 718.2(e):

… the Courts of Appeal will consider the reasons in support of sentences and their relation to the statement of principles and purposes of lower courts and that over a period of time, the development of the appellant jurisprudence would provide the guidelines that were being sought by those advocating numerical sentencing guidelines. (Daubney and Parry 1999, 45)

Section 718.2(e) began having an impact on judicial decisions after the Supreme Court interpreted it for the first time in 1999 in Gladue. The landmark decision reviewed the sentence of imprisonment for an Indigenous woman who was convicted of manslaughter of her common-law spouse.

2.3 The Gladue Decision

Jamie Tanis Gladue was born in McLennan, Alberta, of a Cree mother and a Métis father. On September 16, 1995, Jamie was celebrating her 19th birthday in the company of her common-law spouse, Reuben Beaver, her friends, and members of her family. During the celebrations, she and her guests drank beer. Jamie suspected her spouse of having an affair with her older sister, Tara. She voiced her suspicions and her desire for revenge to her friends.

When Tara Gladue left the party, she was followed by Mr. Beaver. Jamie Gladue was visibly angry at Mr. Beaver and also left the party to find him. According to the witnesses, she threatened to kill him. She eventually located Mr. Beaver and Tara Gladue as they were leaving Tara’s apartment.

When they returned to their home, Jamie Gladue and Mr. Beaver quarreled, and she attacked him with a knife, causing his death. At the time of the stabbing, Jamie had a blood-alcohol content of between 155 and 165 mg of alcohol in 100 ml of blood, indicating that she was highly intoxicated.

2.3.1 Mitigating Factors

At the time of sentencing, the judge took into consideration a number of mitigating factors:

  1. The accused was a young mother.
  2. She had no criminal record apart from an impaired driving conviction.
  3. Her family was supportive.
  4. While on bail, she attended alcohol abuse counselling and upgraded her education.
  5. She had been provoked by the victim’s insulting behaviour and remarks.
  6. At the time of the offence, she had a hyperthyroid condition (which can cause overreaction to emotional situations).
  7. She showed signs of remorse.
  8. She entered a plea of guilty.

2.3.2 Aggravating circumstances

  1. The accused stabbed the deceased twice, the second time after he had fled in an attempt to escape.
  2. From the remarks she made before and after the attack, it was clear that the accused intended to harm the victim.
  3. She was not afraid of the victim.

The trial judge sentenced Ms. Gladue to three years of incarceration, noting in particular the seriousness of the offence, the importance of the principles of denunciation and general deterrence. As Ms. Gladue and her spouse lived in an urban area (not “within the aboriginal community as such”, Gladue,para 18), the judge found that there were no special circumstances arising from their Indigenous status that he should take into consideration. Noting the very serious nature of the offence, the judge sentenced her to three years’ imprisonment with a ten-year weapons prohibition.

2.3.3 Court of Appeal for British Columbia

Ms. Gladue appealed her sentence of three years’ imprisonment but not the ten-year weapons prohibition. Among the four grounds of appeal, only one was directly relevant, namely “whether the trial judge failed to give appropriate consideration to the appellant’s circumstances as an aboriginal offender” (Gladue,para 19). The appellant also sought to adduce fresh evidence regarding her efforts since the killing to maintain links with her Indigenous heritage (notably, she had taken steps to become full status Cree).

The Court of Appeal unanimously concluded that the judge had erred in finding that s. 718.2(e) did not apply because Ms. Gladue was not living in an Indigenous community. However, the three judges of the Court of Appeal did not reach a consensus on whether the sentence was fit. Two judges dismissed the appeal, agreeing with the trial judge that the crime had been sufficiently serious to justify imprisonment. They also refused to consider the appellant’s fresh evidence. The third judge (dissenting) analyzed parliamentary reports on s. 718.2(e) and spoke favourably about the steps the appellant had taken to maintain her links with Indigenous culture. In the view of the dissenting judge, a three-year sentence was excessive because an alternative method to advance the appellant’s rehabilitation could have been crafted (for example, a period of supervised probation). Ultimately, the appeal was dismissed by a majority of the B.C. Court of Appeal.

2.3.4 Supreme Court of Canada

The Supreme Court of Canada considered whether the sentence of three years of imprisonment was a correct application of s. 718.2(e). At the outset, the Supreme Court recognized both “[t]he systematic use of the sanction of imprisonment in Canada” (Gladue,para 53) and “the magnitude and gravity of the problem” of the overrepresentation of Indigenous peoples in Canadian prisons (Gladue, para 64). Gladue also states:

The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system. The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem (para 64).

In writing the decision, the Supreme Court aimed to establish “a framework for the sentencing judge to use in sentencing an aboriginal offender” (Gladue,para 28). The framework it set out is as follows (Gladue, para 93):

  1. 718.2(e) is a remedial provision aimed at addressing the over incarceration of aboriginal people. Sentencing judges have a statutory duty to give force to the provision and are encouraged to use restorative approaches to sentencing.
  2. 718.2(e) should be read with other provisions in Part XXIII of the Criminal Code, which state the purpose and principles of sentencing, and which places emphasis on decreasing the use of incarceration.
  3. Sentencing is an individual process. Judges should ask, what is a fit sentence for this accused for this offence in this community? For aboriginal offenders, this requires a different method of analysis which considers:
    1. Unique systemic or background factors that have played a part in bringing the aboriginal offender before the court, and;
    2. Types of sentencing procedures/sanctions appropriate in the circumstances for the offender because of his/her aboriginal heritage or connection.
  4. In determining an appropriate sentence for an aboriginal accused,
    1. Judges should take judicial notice of systemic and background factors, and the priority given to restorative approaches in Indigenous approaches to justice.
    2. Pre-sentence reports should provide information pertaining to (a) and (b) above, unless this requirement is waived by the aboriginal offender. Counsel has duty to assist in gathering this information.
    3. Incarceration should be seen as a sanction of last resort; if there are no alternatives to incarceration, length of term must be carefully considered.
  5. 718.2(e) applies to all aboriginal offenders regardless of whether they live on- or off- reserve. The relevant “aboriginal community” is to be defined broadly, and an aboriginal offender in an urban centre not having networks for support does not relieve the sentencing judge of the obligation to find an alternative to imprisonment. Absence of alternative sentencing programs specific to an aboriginal community does not eliminate the ability of a judge to craft a sentence that takes into account the principles of restorative justice, and the needs of the parties involved.
  6. While the application of 718.2(e) may mean that an aboriginal offender may have a shorter jail term than a non-aboriginal offender for the same offence, the provision should not be considered an automatic reduction of sentence. The use of alternatives to imprisonment should not be considered a more lenient sentence. As the traditional sentencing goals of deterrence, denunciation and separation are still relevant, it is likely that the more serious or violent the crime, the more likely that terms of imprisonment will be the same for offences and offenders whether aboriginal or not.

With regard to Jamie Gladue, the Supreme Court found that the sentencing judge had erred in limiting the application of s. 718.2(e) to Indigenous offenders living on-reserve or in rural areas. The judge did not consider the background or systemic factors that may have been involved in the circumstances of the crime, and counsel did not assist in providing this information.

Moreover, the Court of Appeal judges should have reviewed the fresh evidence added at trial and, if necessary, should have remitted the matter to the trial judge with instructions to obtain information on the circumstances of the appellant as an Indigenous offender.

The Court also determined that the aggravating factors of the offence must be taken into account, as they would be for any offender. For Ms. Gladue, a sentence of three years’ imprisonment was deemed reasonable.

Finally, the Supreme Court noted that Ms. Gladue was granted day parole after serving six months in prison. The conditions imposed were that she reside with her father, take alcohol and substance abuse counselling and comply with the Electronic Monitoring Program. Six months later, the appellant was granted full parole with the same conditions as the ones applicable to her release on day parole. The Court found that the results of the sentence were in the interests of the appellant and society and that, therefore, a new sentencing hearing to canvass the appellant’s circumstances as an Indigenous offender would not be necessary. The appeal was dismissed.

2.3.5 Reactions to the Supreme Court’s Decision

The Supreme Court’s decision in Gladue was praised by many for recognizing the ways that the criminal justice system has failed Indigenous people (Haslip 2000; Nowlin 2004; Roach and Rudin 2000; Roach 2009), and the need for culturally appropriate sanctions and sentences (Drummond 1997; Proulx 2005). In particular, it recognized that systemic and background factors should be considered in sentencing Indigenous persons living off-reserve or without status (Roach and Rudin 2000; Proulx 2005). Many responded favourably to what they saw as a recognition of the relevance of social context in determining an appropriate sentence (Williams 2008, Cameron 2008, Ozkin 2012). Gladue recognized the cumulative effects of colonialism on Indigenous communities, as well as “how widespread racism has translated into systemic discrimination in the criminal justice system” (para 61).

However, as s. 718.2(e) was controversial when it was enacted by Parliament, the Gladue decision also faced political backlash. Political and subsequent media critique were generally of the view that Gladue was unfair for non-Indigenous offenders because it was a “race-based discount” on sentencing. Closely linked is the critique that Gladue would be inconsistent with the principle of sentencing parity (s. 718.2(b)). During parliamentary debates, Bloc Québécois and Reform Members of Parliament critiqued the section on formal equality grounds, questioning the differential treatment of Indigenous offenders.Footnote 9 In one news story, in which a drunk driver who was Indigenous received a conditional sentence, the step parent of the child who was killed complained that “a treaty card is like a get out of jail free card” (Roach and Rudin 2000). Another editorial columnist wrote: “we believe that no one should get special treatment before the courts based on their skin colour” (Roach and Rudin 2000).

While as the independent third branch of government, the court does not base its decisions on political criticism, public opposition of Gladue could undermine the progress made by the decision. Public criticism grounded in formal equality points, perhaps, to the need for more education and information on the concept of substantive equality on which constitutionally entrenched equality rights are based. As explained in the next section, in R v Ipeelee, the Court addresses these critiques and explains that differential treatment is at times needed to achieve true equality.

Roach and Rudin (2000) point out that while 718.2(e) is a remedial provision rooted in the concept of substantive equality, the Court is “sending messages about the need for both different and similar treatment of aboriginal offenders” (p. 381). Gladue recognizes that overrepresentation is an indication that the criminal justice system is discriminatory towards Indigenous peoples. Hence, a different methodology that considers different factors is needed in sentencing Indigenous offenders. Yet, the Court also states that even after these factors are considered, Indigenous offenders may receive the same sentence, especially in cases of serious or violent crimes. For Roach and Rudin, the most ambiguous section of Gladue is whether the same principles applied to serious and violent crimes.

Other academic and political critique question why s. 718.2(e) focuses on ethnic background instead of proportionality, a fundamental principle in sentencing (Anand 2000; Stenning and Roberts 2001); as well as if sentencing is the appropriate place to address overrepresentation (LaPrairie 1990; Rudin 2005). These critiques are addressed by the Supreme Court in R v Ipeelee.

2.4 Subsequent Jurisprudence

2.4.1 R v Ipeelee

Thirteen years after the Gladue decision, two cases of breaches of Long-Term Supervision Orders (LTSOs) were appealed to the Supreme Court. The cases of Manasie Ipeelee and Frank Ladue were addressed together in the 2012 R v Ipeelee decision, in which the Court examined the issue of whether s. 718.2(e) was applicable to breaches of LTSOs.

Facts of the Case
Ipeelee

Manasie Ipeelee was a 39-year-old Inuk man born and raised in Iqaluit, Nunavut living in Kingston, estranged from his family. His mother was an alcoholic and died when he was young. He began drinking at 11 and became an alcoholic; he was first involved with the criminal justice system at 12 years old. His adult criminal record “shows a consistent pattern of… administering gratuitous violence against vulnerable, helpless people while he is in a state of intoxication” (para 9). He was designated a Long Term Offender in 1999, when he sexually assaulted a homeless woman, causing bodily harm. On August 20, 2008, he was found publically intoxicated in Kingston, a breach of his LTSO condition to abstain from alcohol.

Mr. Ipeelee pled guilty to the breach. His Inuit status was not given significant weight during sentencing. On appeal, the Ontario Court of Appeal acknowledged that his Inuit status should have been considered, but found the sentence of three years imprisonment to be appropriate.

Ladue

Frank Ralph Ladue was 49 years old and a member of the Ross River Dena Council Band, a small community in the Yukon. Both of his parents were alcoholics and died when he was very young. At five years old, he was sent to residential school for four years, where he alleges that he suffered serious physical, sexual, emotional, and spiritual abuse. Upon returning to his community at 9 years old, he could no longer speak his traditional language to communicate his experiences with his family; as a result, he began drinking and acting out. With the exception of a six-year period of sobriety in the 1990s, during which he had no criminal convictions, Mr. Ladue drank heavily throughout his life and also began using illicit drugs while in a federal penitentiary.

Mr. Ladue was first convicted of an offence when he was 16 years old. He had a series of sexual offences, which led to his characterization as a “serial sex offender.” He was designated a Long Term Offender when he broke into a woman’s home and sexually assaulted her. After his sentence, he was supposed to be released to a halfway house in Kamloops where he would have received support from an Indigenous elder. However, he was instead arrested and detained for the duration of an outstanding DNA warrant – an administrative error by Crown officials. As a result, he was released to a different halfway house in downtown Vancouver, despite concerns that drugs were accessible both at the residence and in the surrounding neighbourhood. Mr. Ladue breached his LTSO condition when he was asked for a urine sample and it tested positive for cocaine.

The Supreme Court’s Decision

In a strong majority decision, the court held that s. 718.2(e) applied to breaches of LTSO conditions, affirming and clarifying the principles set out in Gladue, as well as addressing a number of critiques. Mr. Ipeelee’s sentence was reduced to one year, and the BC Court of Appeal’s decision to reduce Mr. Ladue’s sentence to one year was upheld.

The court articulated the principles of sentencing which were codified in 1996. Sentencing is an individual process that assesses all relevant factors and circumstances of the offender. The fundamental principle is that sentences must be proportional to both (1) the gravity of the offence and (2) the degree of responsibility of the offender. As a long standing principle central to the sentencing process, proportionality is consistent with s. 12 of the Charter and can also be described as a principle of fundamental justice. The court clarified that Gladue does not set out an alternative sentencing method disregarding proportionality, but rather, judges must take Gladue factors into consideration in order to craft a just sentence that is proportional to the gravity of the offence and to the degree of responsibility of the offender.

In other words, until s. 718.2(e) was enacted, sentences for Indigenous offenders were often not consistent with the proportionality principle, because they did not consider the factors set out in Gladue. If Gladue recognized the extent of the Indigenous over incarceration problem (Ipeelee, para 58), Ipeelee is an explicit acknowledgement of Canada’s complicity in creating this problem and contributing to its perpetuation. The Court acknowledges that the Canadian criminal justice system has “failed the Aboriginal peoples of Canada” (para 57), a recognition of both the culturally inappropriate nature and the systemic discrimination of the criminal justice system. It was also made clear that judges have a duty to take judicial notice of systemic and background factors, including: the history of colonialism, displacement, residential schools and how that continues to translate to lower educational attainment, lower income, higher unemployment, higher rates of substance abuse and suicide, and higher rates of incarceration (para 60).

Justice Lebel addressed what he called “a fundamental misunderstanding and misapplication of both s. 718.2(e) and this Court’s decision in Gladue” (para 63). In particular, the Court responded to the following related criticisms:

(1) Sentencing is not an appropriate means for addressing overrepresentation

While the issue of overrepresentation is complex, the roots of which extend far beyond the criminal justice system, judges, as front-line workers, have a limited, but important role to play (para 69). As judges have discretionary power and can significantly impact an offender’s experience in the criminal justice system, they can endeavor to reduce crime rates in Indigenous communities, rehabilitate offenders, and ensure that systemic factors do not lead to discrimination in sentencing.

The purpose of sentencing is to promote a just, peaceful, and safe society through imposing just sanctions that are consistent with the principle of proportionality, and a just sanction is one that does not “operate in a discriminatory manner” (para 68). Gladue factors are not “hijacking the sentencing process in pursuit of other goals” (para 68); rather, they ensure that sentences for Indigenous offenders are not discriminatory, ensuring that sentencing fulfills its fundamental purpose.

(2) Gladue principles are a “race-based” discount on sentencing

The Gladue decision had stated explicitly that s. 718.2(e) is not an automatic reduction of a sentence; but even still, there have been critiques that the likely outcome is that an Indigenous offender will either not be sentenced to incarceration, or be given shorter sentences. The Court’s response to this was two-fold.

First, it is necessary to consider systemic and background factors for Indigenous offenders to ensure that sentences are proportional to the degree of responsibility of the offender. As criminal liability follows from voluntary conduct, the reality that Indigenous offenders have been restrained by their systemic and background circumstances may diminish their level of moral culpability. Failing to take such factors into account would mean that sentences are not proportional to the degree of responsibility of the offender. Such circumstances may also mean that “a sanction that takes account of the underlying causes of the criminal conduct may be more appropriate than one only aimed at punishment per se” – in other words, restorative justice approaches may be more appropriate.

Additionally, directing judges to find more culturally appropriate sanctions will more effectively achieve the objectives of sentencing. Gladuefactors address the fact that Indigenous people are less likely to be “rehabilitated” by imprisonment, because prisons are often culturally inappropriate and rampant with racial discrimination. Ipeelee recognizes that not all offenders and all communities share the same world view “with respect to such elemental issues as the substantive content of justice and the process of achieving justice” (para 74); and these differences must be considered if the criminal justice system is to be effective.

(3) Gladue violates the principle of sentencing parity (as articulated in s. 718.2(b)) because it creates unjustified distinctions between offenders who are otherwise similarly situated

The sentencing parity critique is premised on the argument that Indigenous offenders are similarly situated to non- Indigenous offenders when their circumstances and history are, in fact, unique. Indeed, “poverty and other incidents of social marginalization may not be unique, but how people get there is. No one’s history in this country compares to Indigenous people’s” (para 77). In addition, background and systemic factors are also taken into account for non-Indigenous offenders (para 77).

The Court cautioned that a formalistic approach to sentencing parity should not undermine the remedial purpose of s. 718.2(e): “to treat aboriginal offenders fairly by taking into account their difference” (Roach and Rudin 2000, p. 380). As Canada is a diverse society that is far from achieving perfect equality, the same treatment will have differential impact on different individuals. It is for this reason that s.15 Charter jurisprudence takes a substantive, rather than a formal approach to equality; and that affirmative action programs are constitutionally protected in s. 15(2) of the Charter. As no two offenders appearing before the courts will have the same circumstances, s. 718.2(b) does not require that there is no disparity in sentencing, but rather that disparity in sentences are justified (para 79). For Indigenous offenders, differences are justified based on unique systemic and background factors.

In addition, the Court clarified that offenders are not required to establish a causal link between systemic and background factors and the offence itself. Factors like intergenerational trauma and the legacy of colonialism are not seen as excuses for criminal conduct, but rather considerations for an appropriate sentence. Finally, s. 718.2(e) and Gladue factors apply to all Indigenous offenders, regardless of the seriousness of their offence. Failing to apply Gladue would be failing a statutory obligation, and would result in an unfit sentence that is inconsistent with the fundamental principles of proportionality.

2.4.2 Commentary on the Ipeelee Decision

The Ipeelee decision was seen as a reaffirmation and expansion of the Court’s decision in Gladue. Rudin (2012) writes, “the decision goes beyond Gladue in its analysis, its acknowledgement of the realities of colonialism and its strong defence of the need to sentence Aboriginal offenders differently” (para 2). In the thirteen years since Gladue, as the Indigenous prison population has continued to rise, Ipeelee is seen as a call to action for criminal justice system participants to meaningfully adhere to Gladue principles (Green 2012; Parkes et al. 2012). The decision renewed interest in s. 718.2(e), creating momentum for programs, tools, and resources.Footnote 10

Proportionality as a principle of fundamental justice

Beyond addressing the criticisms of Gladue, some authors found the Court’s discussion of proportionality to be significant, particularly as a potential basis for future Charter challenges to mandatory minimum sentences (Roach 2012). Justice Lebel writes,

“This principle was not borne out of the 1996 amendments to the Code but, instead, has long been a central tenet of the sentencing process… It also has a constitutional dimension, in that s. 12 of the Canadian Charter of Rights and Freedoms forbids the imposition of a grossly disproportionate sentence that would outrage society’s standards of decency. In a similar vein, proportionality in sentencing could aptly be described as a principle of fundamental justice under s. 7 of the Charter” (para 36, emphasis added).

Some view this as the constitutional entrenchment of the proportionality principle by a majority of the Supreme Court. For some authors, Ipeelee gives judicial discretion in the sentencing process constitutional status, which provides a more substantial basis to Charter challenges to mandatory minimum sentence cases (Sylvestre 2013). Roach (2012) also notes that proportionality may have been introduced as a principle of fundamental justice; however, it is still unclear whether Lebel’s statement is a legally binding portion of the decision.

Recognizing social context in sentencing

Roach (2012) views Ipeelee as a “more contextual and offender-sensitive vision of proportionality” (p. 231). The fundamental principle of proportionality is that sentences must be proportionate to both the gravity of the offence and the degree of responsibility of the offender. Courts have typically focused on assessing the former, and have not significantly developed the latter. With Ipeelee, Sylvestre (2013) argues that the Court is moving towards a concept of shared or collective responsibility for crime grounded in the notion of “degree of responsibility of the offender.”

While criminal theory has traditionally been based on individual responsibility, Sylvestre suggests that courts have “created some space for considering social, economic, and political aspects of crime” (p. 22). In R v Nasogaluak, in which an Inuk man was violently arrested and detained, the Court clarified that state misconduct was a relevant mitigating factor in sentencing. Sylvestre argues that Ipeelee moves beyond individual instances of state misconduct in Nasogaluak to consider the role of the state in the perpetration of the crime as it relates to the degree of responsibility of the offender:

“Most specifically, the Court examines the role of the criminal justice system itself, as well as that of the state more generally, in violating fundamental human rights and creating conditions of social and economic deprivation that may create conflicts that are criminalized… Such a discussion is grounded in the concept of ‘degree of responsibility’” (p. 7-8).

The decision not only notes that Correctional Services Canada’s administrative error caused Mr. Ladue to be placed in an environment in which he would be vulnerable to breaching his LTSO, but also that his breach is directly connected to his addiction to opiates, which he began using in a federal penitentiary (paras 27-30). This, according to Sylvestre, acknowledges the responsibility of the criminal justice system itself in the perpetration of crime. In addition, the Court’s reasoning that background and systemic factor affects the offender’s level of blameworthiness, and hence the degree of responsibility of the offender, implies a broader understanding of crime and responsibility. Specifically,

“a conception of responsibility that socializes individual choice, emphasizes the collectivization of risk and draws moral condemnation to the social, economic and political order in which societal conflicts are embedded” (p. 9).

In other words, the Court’s reasoning in Ipeelee appears to be moving towards a conception of criminal responsibility in which an individual’s degree of responsibility is reduced by the social, economic, and political circumstances that informed the offence.Footnote 11 Sylvestre supports extending the use of social context in sentencing to other offenders “undergoing state violence and systemic discrimination such as poor and homeless people, immigrants and racial minorities” (p. 10). However, Ipeelee’s contextual approach has not been widely adopted outside of the Indigenous offender context (Ozkin 2012). For example, while the Ontario Court of Appeal in R v Borde accepted that “systemic and background factors relating to African-Canadians might be taken into account in sentencing if the factor played a role in the commission of the offence”, it held that judges did not need to take judicial notice of systemic and background factors for African-Canadian offenders.

Nevertheless, Ipeelee further enunciates the proportionality principle, and is clear that “proportionality must not only denounce crimes and reflect concerns for victims, but also ensure justice for the offender” (Roach 2012, p. 230).

2.4.3 Notable Application of Gladue by Courts of Appeal across Canada

Beyond the application of s. 718.2(e) to sentencing criminal offences, Gladue factors have been applied whenever an Indigenous person’s liberty is at stake. As stated in Gladue, relevant factors should be considered by all decision-makers who have the power to influence the treatment of Indigenous offenders in the justice system.”Footnote 12 Some notable cases include:

R v Sim 2005 CanLII 37586 Ont CA

Gladue factors were relevant to a Review Board disposition of an Indigenous person found not criminally responsible.

R v Jenson 2005 CanLII 7649 Ont CA

Gladue factors are relevant to determinations of period of parole ineligibility in sentencing, even if the offender receives a life sentence.

Frontenac Ventures Corporation v Ardoch Algonquin 2008 ONCA 534

In sentencing Indigenous individuals found in civil contempt of Court for engaging in a peaceful protest, Gladue factors were applicable.

R v Sutherland 2009 BCCA 534

Gladue factors were considered in the decision to modify s. 161 orders prohibiting the offender from attending a community centre where there were culturally appropriate rehabilitation programs.

United States v Leonard, 2012 ONCA 622

In an extradition case involving an Indigenous person, it was held that Gladue factors were relevant to a determination of whether an individual’s personal circumstances would make extradition contrary to s. 7 of the Charter.

Gladue factors should also be considered when prosecutorial discretion is exercised about whether to prosecute domestically or to extradite.

R v Kokopenace 2013 ONCA 273

Gladue factors were considered in determining whether the State made reasonable efforts to ensure representative inclusion of Indigenous people in jury selection.

Twins v Canada (Attorney General) 2016 FC 537 (CanLII)

Parole Board of Canada and its Appeal Division must consider Gladue factors when making decisions.