New & Notable: Gladue Reloaded!

Sentencing is a difficult if not enigmatic beast.  Perhaps not surprisingly given the myriad of considerations together with the uniqueness of every offence and every offender.  The recent cases of Ipeelee and Ladue illustrate this point: R v Ipeelee, 2012 SCC 13.  Both were aboriginal offenders; both were sentenced for breach LTSOs; both received 3 year sentences at first instance; Ipeelee appealed to the Ontario Court of Appeal unsuccessfully; Ladue successfully appealed to the British Columbia Court of Appeal (reducing his sentence to 1 year).  The Supreme Court held that one year sentences were appropriate for both.

LeBel J (writing for the majority) began with a review of general sentencing principles [paras 34-39].  LeBel J then turned to the specific offence, noting that this was the first time the Court has addressed it he set out the following guidance: 

...[the] two specific objectives of long-term supervision as a form of conditional release [are]: (1) protecting the public from the risk of re offence, and (2) rehabilitating the offender and reintegrating him or her into the community.  The latter objective may properly be described as the ultimate purpose of an LTSO as indicated by s. 100 of the CCRA, though it is inextricably entwined with the former.  Unfortunately, provincial and appellate courts have tended to emphasize the protection of the public at the expense of the rehabilitation of the offenders.  This, in turn, has affected their determination of what is a fit sentence for breaching a condition of an LTSO [para 48].

LeBel J cautioned, however, that this is not to say that rehabilitation will always be foremost [para 51].  In the end, LeBel J held that sentencing in these cases should be approached in the same way it is for any offecne:

Breach of an LTSO is not subject to a distinct sentencing regime or system.  In any given case, the best guides for determining a fit sentence are the well-established principles and objectives of sentencing set out in the Criminal Code [para 55].

LeBel J then turned to aboriginal offenders.  LeBel J noted that section 718.2 is a remedial section "designed to ameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judge to have recourse to a restorative approach to sentencing" [para 59].

LeBel J then undertook a thorough review of Gladue and post-Gladue sentencing and noted that it "reveals several issues with the implementation of the provision [section 718.2].  These errors have significantly curtailed the scope and potential remedial impact of the provision, thwarting what was originally envisioned by Gladue" [para 80].

In the end LeBel J held that the Gladue principles are applicable to every sentencing of an Aboriginal offender - including LTSO breaches and failure to apply it constitutes error.


DG Mack