[7] While the Supreme Court was clear with respect to sentencing judges being under a positive duty to consider the background circumstances of Indigenous Peoples before the courts, some have called into question the effectiveness of the current regime as directed by section 718.2(e) of the Criminal Code as Indigenous Peoples continued to be over-represented in the criminal justice system, despite the decision in Gladue being decided over twenty years ago.
[11] Parliament enacted this remedial provision aimed at alleviating the over-incarceration rates of Indigenous offenders through sentencing.
While the sentencing process is individualized, the offender is understood to exist within the context of the collective experience[16] of Indigenous Peoples in what is now called Canada.
This includes recognition of “unique background and systemic factors which may have played a part in bringing the particular offender before the courts.”[17] These changes to section 718.2 recognized that crimes could not be separated from the effects of residential schools and damage done to Indigenous Peoples, which lead to a dramatic over-representation in prison populations.
Second, the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the person before the court because of their particular aboriginal heritage or connection.
[22] The court noted his mother was an alcoholic who froze to death when Mr. Ipeelee was only five years old, and he was subsequently raised by his maternal grandparents.
His record also included two counts of assault causing bodily harm and these convictions provided the basis for his designation as a long-term offender.
[29] Justice LeBel noted the Gladue decision and section 718.2(e) of the Criminal Code has not had the anticipated impact, specifically with respect to the rates of over-incarceration of Indigenous People.
[31] R v Ipeelee reaffirmed a sentencing judge’s statutory duty to take into account an Aboriginal offender’s circumstances, no matter what offence was committed.
Importantly, the court held: “The sentencing judge has a statutory duty, imposed by section 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.”[32] The two issues before the Supreme Court of Canada were as follows: 1.
[34] Importantly, Justice LeBel finds the consideration of the background and systemic factors as directed in the first prong of a Gladue analysis forms an inherent part of the proportionality principle (meaning sentences must be comparable to both the gravity of the offence and the responsibility of the offender[35]).