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ABORIGINAL OFFENDERS

R. v. Ipeelee, 2012 SCC 13 (CanLII)

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                 These two appeals involve Aboriginal offenders with long criminal records.  Both Aboriginal offenders were declared long-term offenders and had long-term supervision orders (“LTSO”) imposed.  The offender I is an alcoholic with a history of committing violent offences when intoxicated.  He was sentenced to six years’ imprisonment followed by an LTSO after being designated a long-term offender.  After his release from prison, I committed an offence while intoxicated thereby breaching a condition of his LTSO.  He was sentenced to three years’ imprisonment, less six months of pre-sentence custody at a 1:1 credit rate.  The Court of Appeal dismissed the appeal brought by I.  The offender L is addicted to drugs and alcohol and has a history of committing sexual assaults when intoxicated.  L was sentenced to three years’ imprisonment followed by an LTSO after being designated a long-term offender.  After his release from prison, he failed a urinalysis test; thereby breaching a condition of his LTSO.  L was sentenced to three years’ imprisonment, less five months of pre-sentence custody at a 1.5:1 rate.  A majority of the Court of Appeal allowed L’s appeal and reduced the sentence to one year’s imprisonment.


                   Held (Rothstein J. dissenting in part):  The appeal should be allowed in Ipeelee.  The appeal should be dismissed in Ladue.


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


                   The central issue in these appeals is how to determine a fit sentence for a breach of an LTSO in the case of an Aboriginal offender in particular.  Trial judges enjoy a broad discretion in the sentencing process.  A sentencing judge has a duty to apply all of the principles mandated by ss. 718.1 and 718.2 of the Criminal Code in order to devise a fit and proper sentence which respects the well-established principles and objectives of sentencing set out in Part XXIII of the  Criminal Code.  Proportionality is the sine qua non of a just sanction.  Proportionality, the fundamental principle of sentencing, is intimately tied to the fundamental purpose of sentencing — the maintenance of a just, peaceful and safe society through the imposition of just sanctions.  An appellate court must be satisfied that the sentence under review is proportionate to both the gravity of the offence and the degree of responsibility of the offender.


                   The purpose of an LTSO is two-fold: to protect the public and to rehabilitate offenders and reintegrate them into the community.  It is the sentencing judge’s duty, adopting a contextual approach, to determine which sentencing options will be proportionate to both the gravity of the offence and the degree of responsibility of the offender.  Sentencing is an individual process.  The severity of a given breach will ultimately depend on all of the circumstances, including the nature of the condition breached, how that condition is tied to managing the particular offender’s risk of re-offence, and the circumstances of the breach.


                   Section 718.2(e) of the Criminal Code is a remedial provision designed to ameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing.  Courts must ensure that a formalistic approach to parity in sentencing does not undermine the remedial purpose of s. 718.2(e).  Section 718.2(e) 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.  The enactment of s. 718.2(e) is a specific direction by Parliament to pay particular attention to the circumstances of Aboriginal offenders during the sentencing process because those circumstances are unique and different from those of non-Aboriginal offenders.  To the extent that current sentencing practices do not further the objectives of deterring criminality and rehabilitating offenders, those practices must change so as to meet the needs of Aboriginal offenders and their communities.  Sentencing judges, as front-line workers in the criminal justice system, are in the best position to re-evaluate these criteria to ensure that they are not contributing to ongoing systemic racial discrimination.  Just sanctions are those that do not operate in a discriminatory manner.


                   When sentencing an Aboriginal offender, a judge must consider the factors outlined in R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688:  (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.  Systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness.  Failing to take these circumstances into account would violate the fundamental principle of sentencing — that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.  The Gladue principles direct sentencing judges to abandon the presumption that all offenders and all communities share the same values when it comes to sentencing and to recognize that, given these fundamentally different world views, different or alternative sanctions may more effectively achieve the objectives of sentencing in a particular community.  The principles from Gladue are 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.


                   When sentencing an Aboriginal offender, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples.  These matters provide the necessary context for understanding and evaluating the case-specific information presented by counsel.  However, these matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders.  Furthermore, there is nothing in the Gladue decision which would indicate that background and systemic factors should not also be taken into account for other, non-Aboriginal offenders.  The parity principle which is contained in s. 718.2(b) means that any disparity between sanctions for different offenders needs to be justified.  To the extent that the application of the Gladue  principles lead to different sanctions for Aboriginal offenders, those sanctions will be justified based on their unique circumstances — circumstances which are rationally related to the sentencing process.  Counsel has a duty to bring individualized information before the court in every case, unless the offender expressly waives his right to have it considered.  A Gladue report, which contains case-specific information, is tailored to the specific circumstances of the Aboriginal offender.  A Gladue report is an indispensable sentencing tool to be provided at a sentencing hearing for an Aboriginal offender and it is also indispensable to a judge in fulfilling his duties under s. 718.2(e) of the Criminal Code.


                    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.  If the sentencing judge fails to apply the Gladue principles in any case involving an Aboriginal offender this would run afoul of this statutory obligation.  Furthermore, the failure to apply the Gladue principles in any case would also result in a sentence that is not fit and is not consistent with the fundamental principle of proportionality.  Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender, including the breach of an LTSO, and a failure to do so constitutes an error justifying appellate intervention.


                   In the instant case of I, the courts below made several errors in principle warranting appellate intervention.  The courts below erred in concluding that rehabilitation was not a relevant sentencing objective.  As a result of this error, the courts below gave only attenuated consideration to I’s circumstances as an Aboriginal offender.  A sentence of one years’ imprisonment should be substituted.  In the instant case of L, the decision of the majority of the Court of Appeal is well founded and adequately reflects the principles and objectives of sentencing.  The appeal is dismissed and the sentence of one years’ imprisonment is affirmed.


                   Per Rothstein J. (dissenting in part):  In sentencing for the breach of a condition of a LTSO, which is central to the risk of the long-term offender violently reoffending, the protection of the public, more so than the rehabilitation or reintegration of the offender, must be the dominant consideration of the sentencing judge in the determination of a fit and proper sentence.  The majority in this case, does not specifically address the issue of the sentencing of Aboriginal offenders who have been found to be long-term offenders and have been found guilty of breaching a condition of a LTSO.  They have not taken account of the difference between the objectives and requirements of LTSOs for long-term offenders who abide by the conditions of their LTSO and the objectives and requirements of sentencing long-term offenders who have breached a condition of their LTSO.


                    The breach of a LTSO raises serious concerns that rehabilitation and reintegration are not being achieved and calls into doubt whether, despite supervision, the long-term offender has demonstrated that the substantial risk of reoffending in a violent manner in the community by the long-term offender can be adequately managed.  Section 753.3(1) of the Criminal Code provides that a breach of a LTSO constitutes an indictable offence, as opposed to a hybrid offence, with a maximum sentence of ten years.  The maximum term is for the breach of the LTSO exclusively and is not dependant on the long-term offender having been found guilty of another substantive offence, violent or otherwise.  The necessary implication is that Parliament viewed breaches of LTSOs as posing such risk to the protection of society that long-term offenders may have to be separated from society for a significant period of time.  Where a breach is central to the substantial risk of reoffending, such as where alcohol or substance consumption has been found to be the trigger for violent offences by the long-term offender, the breach must be considered to be very serious.


                    Section 718.2(e) of the Criminal Code requires a sentencing judge to consider background and systemic factors in crafting a sentence, and all available sanctions other than imprisonment that are reasonable in the circumstances for all offenders, with particular attention to  Aboriginal offenders, including long-term Aboriginal offenders.  As with all sentencing, this must be done with regard to the particular individual, the threat they pose, and their chances of rehabilitation and reintegration.  Evaluating these options lies within the discretion of the sentencing judge.  In the case of long-term offenders, the paramount consideration is the protection of society.  This applies to all long-term offenders, including Aboriginal long-term offenders who have compromised the management of their risk of reoffending by breaching a condition of their LTSO.


                    Once an Aboriginal individual is found to be a long-term offender, and the offender has breached one or more conditions of his or her LTSO, alternatives to a significant prison term will be limited.  The alternatives to imprisonment must be viable and the sentencing judge must be satisfied that they are consistent with protection of society.  Alternatives may include returning Aboriginal offenders to their communities.  However, as in all cases, this must be done with protection of the public as the paramount concern; Aboriginal communities are not a separate category entitled to less protection because the offender is Aboriginal.  Where the breach of a LTSO goes to the control of the Aboriginal offender in the community, rehabilitation and reintegration into society will have faltered, if not failed.  In such case, the sentencing judge may have no alternative but to separate the Aboriginal long-term offender from society for a significant period of time.  Nevertheless, during the period of incarceration, the Aboriginal status of the long-term offender should be taken into account for the purpose of providing appropriate programs that are intended to rehabilitate the offender so that upon release, the substantial risk of re-offending may be controlled.


                   In this case, it has not been shown that the sentence imposed on the offender I was demonstrably unfit and the appeal should be dismissed.  The sentencing judge’s findings demonstrate a thorough appreciation of the circumstances.  He properly recognized that protection of the public was the paramount concern in breaches of LTSOs.  As a long-term offender, I has been found to show a pattern of repetitive behaviour with a likelihood of causing death or physical or psychological injury or a likelihood of causing injury, pain or other evil to other persons in the future through failure to control his sexual impulses.  His alcohol consumption is central to such behaviour.


                    With respect to the offender L, one year imprisonment was a fit and proper sentence and the appeal should be dismissed.  The sentencing judge did not err in focussing on protection of society as the paramount consideration in her sentencing decision.  The sentencing judge found that the only way to protect the community, given L’s high risk of re-offending sexually and moderate to high risk of re-offending violently, was to emphasize the objective of isolation.  She noted that even if L did not commit a substantive offence, his breach was serious.  But this was a case where there was a realistic opportunity for rehabilitation that was denied L because of a “bureaucratic error”.  The sentencing judge does not appear to have considered that it was this error that caused L to be sent to a residential halfway house, which apparently tolerates serious drug abusers and does not provide programs for Aboriginal offenders.  This failure meant that L’s moral blameworthiness was not properly assessed.

Jim O'Neil, LL.B.

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