Manasie Ipeelee Appellant v. Her Majesty The Queen, 2012 SCC 13

SUPREME COURT OF CANADA Citation: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 Date: 20120323 Docket: 33650, 34245 Between: Manasie Ipeelee Appellant and Her Majesty The Queen Respondent - and - Director of Public Prosecutions and Aboriginal Legal Services of Toronto Inc. Interveners And Between: Her Majesty The Queen Appellant and Frank Ralph Ladue Respondent - and - British Columbia Civil Liberties Association and Canadian Civil Liberties Association Interveners Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Rothstein JJ.

Reasons for Judgment: (paras. 1 to 98): Reasons Dissenting in Part: (paras. 99 to 157): LeBel J. (McLachlin C.J. and Binnie, Deschamps, Fish and Abella JJ. concurring) Rothstein J.

R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 Manasie Ipeelee Appellant v. Her Majesty The Queen Respondent and Director of Public Prosecutions and Aboriginal Legal Services of Toronto Inc. Interveners - and - Her Majesty The Queen Appellant v. Frank Ralph Ladue Respondent and British Columbia Civil Liberties Association and Canadian Civil Liberties Association Interveners Indexed as: R. v. Ipeelee 2012 SCC 13 File Nos.: 33650, 34245. 2011: October 17; 2012: March 23.

Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Rothstein JJ. on appeal from the courts of appeal for ontario and british columbia Criminal law — Sentencing — Aboriginal offenders — Breach of condition of long-term supervision order — Principles governing sentencing of Aboriginal offenders — Whether principles outlined in R. v. Gladue apply to breach of long-term supervision order — Criminal Code, R.S.C. 1985, c. C-46, s. 718.2 (e). These two appeals involve Aboriginal offenders with long criminal records.

Both Aboriginal offenders were declared long-term offenders and had long-term supervision orders (“LTSOs”) 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 thecommunity. It is the sentencing judge’s duty, adopting a contextual approach, to determine which sentencing options will beproportionate to both the gravity of the offence and the degree of responsibility of the offender. Sentencing is an individual process. Theseverity of a given breach will ultimately depend on all of the circumstances, including the nature of the condition breached, how thatcondition is tied to managing the particular offender’s risk of reoffence, and the circumstances of the breach.

Section 718.2(

e) of the Criminal Code is a remedial provision designed to ameliorate the serious problem ofoverrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorativeapproach to sentencing. Courts must ensure that a formalistic approach to parity in sentencing does not undermine the remedial purposeof 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 ofanalysis in determining a fit sentence for Aboriginal offenders. The enactment of s. 718.2(

e) is a specific direction by Parliament to payparticular attention to the circumstances of Aboriginal offenders during the sentencing process because those circumstances are uniqueand different from those of non-Aboriginal offenders. To the extent that current sentencing practices do not further the objectives ofdeterring criminality and rehabilitating offenders, those practices must change so as to meet the needs of Aboriginal offenders and theircommunities.

Sentencing judges, as front-line workers in the criminal justice system, are in the best position to re-evaluate these criteriato ensure that they are not contributing to ongoing systemic racial discrimination. Just sanctions are those that do not operate in adiscriminatory manner. When sentencing an Aboriginal offender, a judge must consider the factors outlined in R. v. Gladue, (SCC), [1999] 1 S.C.R. 688: (

a) the unique systemic or background factors which may have played a

part in bringing the particularAboriginal offender before the courts; and (

b) the types of sentencing procedures and sanctions which may be appropriate in thecircumstances for the offender because of his or her particular Aboriginal heritage or connection. Systemic and background factors maybear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness. Failing to takethese circumstances into account would violate the fundamental principle of sentencing — that the sentence must be proportionate to thegravity of the offence and the degree of responsibility of the offender.

The Gladue principles direct sentencing judges to abandon thepresumption that all offenders and all communities share the same values when it comes to sentencing and to recognize that, given thesefundamentally different world views, different or alternative sanctions may more effectively achieve the objectives of sentencing in aparticular community. The principles from Gladue are entirely consistent with the requirement that sentencing judges engage in anindividualized assessment of all of the relevant factors and circumstances, including the status and life experiences, of the personstanding before them.

Gladue affirms this requirement and recognizes that, up to this point, Canadian courts have failed to take intoaccount the unique circumstances of Aboriginal offenders that bear on the sentencing process.

Section 718.2(

e) is intended to remedythis 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, higherunemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples.

Thesematters 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 theGladue 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 differentoffenders needs to be justified. To the extent that the application of the Gladue principles lead to different sanctions for Aboriginaloffenders, those sanctions will be justified based on their unique circumstances — circumstances which are rationally related to thesentencing process. Counsel has a duty to bring individualized information before the court in every case, unless the offender expresslywaives his right to have it considered.

A Gladue report, which contains case-specific information, is tailored to the specificcircumstances of the Aboriginal offender. A Gladue report is an indispensable sentencing tool to be provided at a sentencing hearing foran 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 uniquecircumstances of Aboriginal offenders. If the sentencing judge fails to apply the Gladue principles in any case involving an Aboriginaloffender this would run afoul of this statutory obligation. Furthermore, the failure to apply the Gladue principles in any case would alsoresult in a sentence that is not fit and is not consistent with the fundamental principle of proportionality.

Therefore, application of theGladue principles is required in every case involving an Aboriginal offender, including the breach of an LTSO, and a failure to do soconstitutes an error justifying appellate intervention. In the instant case of I, the courts below made several errors in principle warranting appellate intervention. The courtsbelow erred in concluding that rehabilitation was not a relevant sentencing objective. As a result of this error, the courts below gave onlyattenuated consideration to I’s circumstances as an Aboriginal offender. A sentence of one year’s 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 andobjectives of sentencing. The appeal is dismissed and the sentence of one year’s imprisonment is affirmed. Per Rothstein J. (dissenting in part): In sentencing for the breach of a condition of an LTSO, which is central to the risk ofthe 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 casedoes not specifically address the issue of the sentencing of Aboriginal offenders who have been found to be long-term offenders and havebeen found guilty of breaching a condition of an LTSO. They have not taken account of the difference between the objectives andrequirements of LTSOs for long-term offenders who abide by the conditions of their LTSOs and the objectives and requirements ofsentencing long-term offenders who have breached a condition of their LTSOs.

The breach of an LTSO raises serious concerns that rehabilitation and reintegration are not being achieved and calls intodoubt whether, despite supervision, the long-term offender has demonstrated that the substantial risk of reoffending in a violent mannerin the community by the long-term offender can be adequately managed.

Section 753.3(1) of the Criminal Code provides that a breachof an LTSO constitutes an indictable offence, as opposed to a hybrid offence, with a maximum sentence of 10 years. The maximum termis for the breach of the LTSO exclusively and is not dependent 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 tothe protection of society that long-term offenders may have to be separated from society for a significant period of time. Where a breachis central to the substantial risk of reoffending, such as where alcohol or substance consumption has been found to be the trigger forviolent 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 asentence, and all available sanctions other than imprisonment that are reasonable in the circumstances for all offenders, with particularattention to Aboriginal offenders, including long-term Aboriginal offenders. As with all sentencing, this must be done with regard to theparticular individual, the threat they pose, and their chances of rehabilitation and reintegration. Evaluating these options lies within thediscretion of the sentencing judge.

In the case of long-term offenders, the paramount consideration is the protection of society. Thisapplies to all long-term offenders, including Aboriginal long-term offenders who have compromised the management of their risk ofreoffending by breaching a condition of their LTSOs. Once an Aboriginal individual is found to be a long-term offender, and the offender has breached one or more conditions ofhis or her LTSO, alternatives to a significant prison term will be limited. The alternatives to imprisonment must be viable and thesentencing judge must be satisfied that they are consistent with protection of society.

Alternatives may include returning Aboriginaloffenders 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 ofan 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 societyfor a significant period of time.

Nevertheless, during the period of incarceration, the Aboriginal status of the long-term offender shouldbe taken into account for the purpose of providing appropriate programs that are intended to rehabilitate the offender so that uponrelease, the substantial risk of reoffending 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 shouldbe dismissed. The sentencing judge’s findings demonstrate a thorough appreciation of the circumstances.

He properly recognized thatprotection of the public was the paramount concern in breaches of LTSOs. As a long-term offender, I has been found to show a patternof repetitive behaviour with a likelihood of causing death or physical or psychological injury or a likelihood of causing injury, pain orother evil to other persons in the future through failure to control his sexual impulses. His alcohol consumption is central to suchbehaviour. With respect to the offender L, one year’s 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. Thesentencing judge found that the only way to protect the community, given L’s high risk of reoffending sexually and moderate to high riskof reoffending violently, was to emphasize the objective of isolation. She noted that even if L did not commit a substantive offence, hisbreach 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 aresidential halfway house, which apparently tolerates serious drug abusers and does not provide programs for Aboriginal offenders. Thisfailure meant that L’s moral blameworthiness was not properly assessed. Cases Cited By LeBel J. Applied: R. v. Gladue, (SCC), [1999] 1 S.C.R. 688; referred to: R. v. Wilmott (1966), (ON CA), 58 D.L.R. (2d) 33; R. v. Solowan, 2008 SCC 62, [2008] 3 S.C.R. 309; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206; ReB.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486; R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500; R. v.Lyons, (SCC), [1987] 2 S.C.R. 309; R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163; R. v. W. (H.P.), 2003 ABCA 131, 18Alta. L.R. (4th) 20; R. v. Nelson, [2007] O.J. No. 5704 (QL); R. v. Deacon, 2004 BCCA 78, 193 B.C.A.C. 228; R. v. Laliberte, 2000SKCA 27, 189 Sask. R. 190; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207; R. v. Vermette, 2001 MBCA 64, 156 Man. R. (2d) 120; R.v. Skani, 2002 ABQB 1097, 331 A.R. 50; R. v. Poucette, 1999 ABCA 305, 250 A.R. 55; R. v. Gladue, 1999 ABCA 279, 46 M.V.R. (3d)183; R. v. Andres, 2002 SKCA 98, 223 Sask. R. 121; R. v.

Collins, 2011 ONCA 182, 277 O.A.C. 88; R. v. Jack, 2008 BCCA 437, 261B.C.A.C. 245; R. v. Carrière (2002), (ON CA), 164 C.C.C. (3d) 569; R. v. Kakekagamick (2006), (ON CA), 214 O.A.C. 127; R. v. Jensen (2005), (ON CA), 196 O.A.C. 119; R. v. Abraham, 2000 ABCA 159,261 A.R. 192. By Rothstein J. (dissenting in part) R. v. W. (H.P.), 2003 ABCA 131, 18 Alta. L.R. (4th) 20; R. v. Gladue, (SCC), [1999] 1 S.C.R. 688; R. v.M. (C.A.), (SCC), [1996] 1 S.C.R. 500; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206. Statutes and Regulations Cited Act to amend the Criminal Code, S.C. 1947, c. 55, s. 18.

Act to amend the Criminal Code (high risk offenders), the Corrections and Conditional Release Act, the Criminal Records Act, thePrisons and Reformatories Act and the Department of the Solicitor General Act, S.C. 1997, c. 17. Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22, s. 718. Canadian Charter of Rights and Freedoms, ss. 7, 12. Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 3, 4, 100, 101, 134.1, 134.2, 135.1(1).

Corrections and Conditional Release Regulations, SOR/92-620, s. 161. Criminal Code, R.S.C. 1985, c. C-46,

Part XXIII, ss. 718, 718.1, 718.2,

Part XXIV, 753.1, 753.2(1), 753.3(1). Criminal Law Amendment Act, 1977, S.C. 1977, c. 53, s. 14. Authors Cited Brodeur, Jean-Paul. “On the Sentencing of Aboriginal Offenders: A Reaction to Stenning and Roberts” (2002), 65 Sask. L. Rev. 45. Canada. Department of Justice. Strategies for Managing High-Risk Offenders: Report of the Federal/Provincial/Territorial Task Forceon High-Risk Violent Offenders. Ottawa: The Department, 1995. Canada. House of Commons. House of Commons Debates, vol. 133, 1st Sess., 35th Parl., September 20, 1994, p. 5876. Canada. House of Commons.

Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, No. 62, 1stSess., 35th Parl., November 17, 1994, p. 15. Canada. Royal Commission on Aboriginal Peoples. Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justicein Canada. Ottawa: The Commission, 1996. Canada. Royal Commission to Investigate the Penal System of Canada. Report of the Royal Commission to Investigate the Penal Systemof Canada (Archambault Commission). Ottawa: King’s Printer, 1938. Carter, Mark. “Of Fairness and Faulkner” (2002), 65 Sask. L. Rev. 63.

Jackson, Michael. “Locking Up Natives in Canada” (1988-1989), 23 U.B.C. L. Rev. 215. Manitoba. Public Inquiry into the Administration of Justice and Aboriginal People. Report of the Aboriginal Justice Inquiry ofManitoba, vol. 1, The Justice System and Aboriginal People. Winnipeg: The Inquiry, 1991. Pelletier, Renée. “The Nullification of

Section 718.2(e): Aggravating Aboriginal Over-representation in Canadian Prisons” (2001), 39Osgoode Hall L.J. 469. Quigley, Tim. “Some Issues in Sentencing of Aboriginal Offenders”, in Richard Gosse, James Youngblood Henderson and RogerCarter, eds., Continuing Poundmaker and Riel’s Quest: Presentations Made at a Conference on Aboriginal Peoples and Justice. Saskatoon: Purich Publishing, 1994, 269. Roach, Kent. “One Step Forward, Two Steps Back: Gladue at Ten and in the Courts of Appeal” (2009), 54 Crim. L.Q. 470.

Roberts, Julian V., and Ronald Melchers. “The Incarceration of Aboriginal Offenders: Trends from 1978 to 2001” (2003), 45 Can. J.Crim. & Crim. Just. 211. Rudin, Jonathan. “Aboriginal Over-representation and R. v. Gladue: Where We Were, Where We Are and Where We Might Be Going”,in Jamie Cameron and James Stribopoulos, eds., The Charter and Criminal Justice: Twenty-Five Years Later. Markham, Ont.: LexisNexis Canada, 2008, 687. Rudin, Jonathan. “Addressing Aboriginal Overrepresentation Post-Gladue: A Realistic Assessment of How Social Change Occurs”(2009), 54 Crim. L.Q. 447.

Rudin, Jonathan, and Kent Roach. “Broken Promises: A Response to Stenning and Roberts’ ‘Empty Promises’” (2002), 65 Sask. L. Rev.3. Stenning, Philip, and Julian V. Roberts. “Empty Promises: Parliament, The Supreme Court, and the Sentencing of AboriginalOffenders” (2001), 64 Sask. L. Rev. 137. APPEAL from a judgment of the Ontario Court of Appeal (Laskin, Sharpe and Cronk JJ.A.), 2009 ONCA 892, 99 O.R. (3d)419, 264 O.A.C. 392, [2009] O.J. No. 5402 (QL), 2009 CarswellOnt 7783, affirming a sentence imposed by Megginson J., [2009] O.J.No. 6413 (QL), 2009 CarswellOnt 7864. Appeal allowed, Rothstein J. dissenting.

APPEAL from a judgment of the British Columbia Court of Appeal (Levine, Chiasson and Bennett JJ.A.), 2011 BCCA 101,302 B.C.A.C. 93, 511 W.A.C. 93, 271 C.C.C. (3d) 90, [2011] 2 C.N.L.R. 277, [2011] B.C.J. No. 366 (QL), 2011 CarswellBC 428,varying a sentence imposed by Bagnall Prov. Ct. J., 2010 BCPC 410 , [2010] B.C.J. No. 2824 (QL), 2010 CarswellBC 3822. Appeal dismissed. Fergus J. (Chip) O’Connor, for the appellant Manasie Ipeelee. Gillian Roberts, for the respondent Her Majesty The Queen. Susanne Boucher and François Lacasse, for the intervener the Director of Public Prosecutions.

Jonathan Rudin and Amanda Driscoll, for the intervener the Aboriginal Legal Services of Toronto Inc. Mary T. Ainslie, for the appellant Her Majesty The Queen.

Hovan M. Patey, Lawrence D. Myers, Q.C., and Kristy L. Neurauter, for the respondent Frank Ralph Ladue. Kelly Doctor, for the intervener the British Columbia Civil Liberties Association. Written submissions only by Clayton C. Ruby, Nader R. Hasan and Gerald J. Chan, for the intervener the Canadian CivilLiberties Association. The judgment of McLachlin C.J. and Binnie, LeBel, Deschamps, Fish and Abella JJ. was delivered by LeBel J. — I. Introduction [1] These two appeals raise the issue of the principles governing the sentencing of Aboriginal offenders for breaches oflong-term supervision orders (“LTSOs”).

Both appeals concern Aboriginal offenders with long criminal records. They provide anopportunity to revisit and reaffirm the judgment of this Court in R. v. Gladue, (SCC), [1999] 1 S.C.R. 688. I propose toallow the offender’s appeal in Ipeelee and to dismiss the Crown’s appeal in Ladue. II. Manasie Ipeelee A. Background and Criminal History [2] Mr. Manasie Ipeelee is an Inuk man who was born and raised in Iqaluit, Nunavut. His life story is far removed fromthe experience of most Canadians. His mother was an alcoholic. She froze to death when Manasie Ipeelee was five years old.

He wasraised by his maternal grandmother and grandfather, both of whom are now deceased. Mr. Ipeelee began consuming alcohol when hewas 11 years old and quickly developed a serious alcohol addiction. He dropped out of school shortly thereafter. His involvement withthe criminal justice system began in 1985, when he was only 12 years old. [3] Mr. Ipeelee is presently 39 years old. He has spent a significant proportion of his life in custody or under someform of community supervision. His youth record contains approximately three dozen convictions.

The majority of those offences wereproperty-related, including breaking and entering, theft, and taking a vehicle without consent (joyriding). There were also convictions forfailure to comply with an undertaking, breach of probation, and being unlawfully at large. Mr. Ipeelee’s adult record contains another 24convictions, many of which are for similar types of offences. He has also committed violent crimes. His record includes two convictionsfor assault causing bodily harm and one conviction each for aggravated assault, sexual assault, and sexual assault causing bodily harm.

Iwill describe these offences in greater detail, as they provided the basis for his eventual designation as a long-term offender. [4] In December 1992, Mr. Ipeelee pleaded guilty to assault causing bodily harm. He and a friend assaulted a man whowas refusing them entry to his home. Mr. Ipeelee was intoxicated at the time. During the fight, he hit the victim over the head with anashtray and with a chair. He was sentenced to 21 days’ imprisonment and one year’s probation. [5] In December 1993, Mr. Ipeelee again pleaded guilty to assault causing bodily harm.

The incident took placeoutside a bar in Iqaluit and both Mr. Ipeelee and the victim were intoxicated. Witnesses saw Mr. Ipeelee kicking the victim in the face atleast 10 times, and the assault continued after the victim lost consciousness. The victim was hospitalized for his injuries. At the time ofthe offence, Mr. Ipeelee was on probation. He received a sentence of five months’ imprisonment. [6] In November 1994, Mr. Ipeelee pleaded guilty to aggravated assault. The incident involved another altercationoutside the same bar in Iqaluit. Once more, both Mr. Ipeelee and the victim were intoxicated.

During the fight, Mr. Ipeelee hit and kickedthe victim. After the victim lost consciousness, Mr. Ipeelee continued to hit him and stomp on his face. The victim suffered a broken jawand had to be sent to Montréal for treatment. Mr. Ipeelee was once again on probation at the time of the offence. He was sentenced to 14months’ imprisonment. [7] Mr. Ipeelee received an early release from that sentence in the fall of 1995. Approximately three weeks later, whilestill technically serving his sentence, he committed a sexual assault. The female victim had been drinking in her apartment in Iqaluit withMr.

Ipeelee and others, and was passed out from intoxication. Witnesses observed Mr. Ipeelee and another man carrying the victim intoher room. Mr. Ipeelee was later seen having sex with the unconscious woman on her bed. Mr. Ipeelee was sentenced to two years’imprisonment. He remained in custody until his warrant expiry date in February 1999, as Corrections Canada officials deemed him to bea high risk to reoffend. [8] After serving his sentence, Mr. Ipeelee moved to Yellowknife. He began drinking within one half-hour of hisarrival and was arrested for public intoxication that evening, and again 24 hours later.

In the six months leading up to his nextconviction, he was arrested at least nine more times for public intoxication. [9] On August 21, 1999, Mr. Ipeelee committed another sexual assault, this one causing bodily harm, which led to hisdesignation as a long-term offender. Mr. Ipeelee, while intoxicated, entered an abandoned van that homeless persons frequented. Inside,a 50-year-old woman was sleeping. She awoke to find Mr. Ipeelee removing her pants. She struggled and Mr. Ipeelee began punchingher in the face. When she called out for help, he told her to shut up or he would kill her. He then sexually assaulted her.

The victim wasfinally able to escape when Mr. Ipeelee fell asleep. He was arrested and the victim was taken to the hospital to be treated for herinjuries. [10] At the sentencing hearing for this offence, Richard J. of the Northwest Territories Supreme Court noted that Mr.Ipeelee’s criminal record “shows a consistent pattern of Mr. Ipeelee administering gratuitous violence against vulnerable, helpless peoplewhile he is in a state of intoxication” (R. v. Ipeelee, 2001 NWTSC 33, [2001] N.W.T.J. No. 30 (QL), at para. 34). The expert evidenceproduced at the sentencing hearing indicated that Mr.

Ipeelee did not suffer from any major mental illness and had average to aboveaverage intelligence. However, he was diagnosed as having both an antisocial personality disorder and a severe alcohol abuse disorder.

The expert evidence also indicated that Mr. Ipeelee presented a high-moderate to high risk for violent reoffence, and a high-moderate riskfor sexual reoffence. After evaluating all of the evidence, Richard J. concluded that there was a substantial risk that Mr. Ipeelee wouldreoffend and designated him a long-term offender under s. 753.1(1) of the Criminal Code, R.S.C. 1985, c. C-46. Mr. Ipeelee wassentenced to six years’ imprisonment for the sexual assault, to be followed by a 10-year LTSO. B. The Current Offence [11] Mr.

Ipeelee was detained until his warrant expiry date for the 1999 sexual assault causing bodily harm. His LTSOcame into effect on March 14, 2007, when he was released from Kingston Penitentiary to the Portsmouth Community CorrectionalCentre in Kingston. One of the conditions of Mr. Ipeelee’s LTSO is that he abstain from using alcohol. [12] Mr.

Ipeelee’s LTSO was suspended on four occasions: from June 13 to July 5, 2007, for deteriorating performanceand behaviour, and attitude problems; from July 23 to September 14, 2007, for sleeping in the living room and the kitchen, contrary tohouse rules; from September 24 to October 24, 2007, for being agitated and noncompliant, and for refusing urinalysis; and from October25, 2007, to May 20, 2008, as a result of a fraud charge being laid against him (the charge was subsequently withdrawn). Mr. Ipeeleeserved those periods of suspension at the Kingston Penitentiary. [13] On August 20, 2008, the police found Mr.

Ipeelee riding his bicycle erratically in downtown Kingston. He wasobviously intoxicated and had two bottles of alcohol in his possession. He was charged with breaching a condition of his LTSO, contraryto s. 753.3(1) of the Criminal Code. Mr. Ipeelee pleaded guilty to that offence on November 14, 2008. C. Judicial History

(1) Ontario Court of Justice, [2009] O.J. No. 6413 (QL) [14] On February 24, 2009, Megginson J. of the Ontario Court of Justice sentenced Mr. Ipeelee to three years’imprisonment, less six months of pre-sentence custody at a 1:1 credit rate. He emphasized the serious nature of the offence, stating: On its facts, this was a serious and not at all trivial breach of a very fundamental condition of the offender’s [LTSO]. Itis a very central and essential condition, because alcohol abuse was involved, not only in the “predicate” offence, but also in most of theoffences on the offender’s criminal record.

On his history, Mr. Ipeelee becomes violent when he abuses alcohol, and he was assessed asposing a significant risk of re-offending sexually. Defence counsel argued that the facts of the present breach disclose no movementtoward committing another sexual offence, but I think that is beside the point. [para. 10] [15] Megginson J. held that, when sentencing an offender for breach of an LTSO, the paramount consideration is theprotection of the public and rehabilitation plays only a small role. With that in mind, he addressed the requirement imposed by s. 718.2(e)of the Criminal Code that he consider Mr.

Ipeelee’s unique circumstances as an Aboriginal offender. He began by noting that Mr.Ipeelee’s Aboriginal status had already been considered during sentencing for the 1999 offence giving rise to the LTSO. He went on toconclude that, when protection of the public is the paramount concern, an offender’s Aboriginal status is of “diminished importance”(para. 15).

(2) Ontario Court of Appeal, 2009 ONCA 892, 99 O.R. (3d) 419 [16] Mr. Ipeelee appealed his sentence on the grounds that it was demonstrably unfit, and that the sentencing judge didnot give adequate consideration to his circumstances as an Aboriginal offender. The Court of Appeal dismissed the appeal. [17] Sharpe J.A., writing for the court, was not convinced that the sentence was demonstrably unfit. He agreed with thesentencing judge’s characterization of the offence as a serious breach of a vital condition of the LTSO. Sharpe J.A. found that, despite thesentencing judge’s comments, Mr.

Ipeelee’s Aboriginal status had not factored into the sentencing decision. He did not, however, thinkthis was an error: It is not at all clear to me, however, that in the circumstances of this case, consideration of his aboriginal status shouldlead to a reduction in his sentence for breach of the long-term offender condition. The appellant’s commission of violent offences and therisk he poses for re-offending when under the influence of alcohol make the principles of denunciation, deterrence and protection of thepublic paramount.

This is one of those cases where “the appropriate sentence will . . . not differ as between aboriginal and non-aboriginaloffenders”: R. v. Carrière, (ON CA), [2002] O.J. No. 1429, 164 C.C.C. (3d) 569 (C.A.), at para. 17. As theappellant has been declared a long-term offender, “consideration of restorative justice and other features of aboriginal offendersentencing . . . play little or no role”: R. v. W. (H.P.), 2003 ABCA 131 , [2003] A.J. No. 479, 327 A.R. 170 (C.A.), at para. 50. [para. 13] [18] Sharpe J.A. did concede that Mr.

Ipeelee’s Aboriginal background and the disadvantages he had suffered providedsome insight into his repeated involvement with the criminal justice system. He concluded, however, that these considerations should notaffect the sentence. He ended his reasons with a plea to correctional authorities to make every effort to provide Mr. Ipeelee withappropriate Aboriginal-oriented assistance. III. Frank Ralph Ladue A. Background and Criminal History [19] Mr.

Frank Ralph Ladue, now 49 years old, is a member of the Ross River Dena Council Band, a small community ofapproximately 500 people located 400 kilometres northeast of Whitehorse in the Yukon Territory. Mr. Ladue’s parents had severealcohol abuse problems, so he was raised by his grandparents. His mother and father both died when Mr. Ladue was still very young, andrecords indicate that his mother may have been murdered. When Mr. Ladue was five years old, he was removed from his community andsent to residential school, where he alleges he suffered serious physical, sexual, emotional and spiritual abuse.

[20] When Mr. Ladue was nine years old, he returned to Ross River to resume living with his grandparents. The effects ofhis residential school experience were readily apparent. He could no longer speak his traditional language, having been forbidden to doso in residential school. Unable to communicate his painful experiences to his family, he began drinking and acting out. Before long, hewas living with foster families and spending time in juvenile detention. Mr.

Ladue continued to drink heavily throughout his life (withthe exception of a six-year period of sobriety in the 1990s which coincided with a period free from criminal convictions). Mr. Ladue alsobegan using heroin, cocaine and morphine while in a federal penitentiary. [21] Mr. Ladue’s life experiences may seem foreign to most Canadians, but they are all too common in Ross River. Thecommunity suffered a number of abuses in the 1940s when the United States Army was building a pipeline through the region. Therewere reports of community members being assaulted or raped by members of the army.

The community was further traumatized throughthe residential school experience. The effects of that collective experience continue to be evident in the high rates of alcohol abuse andviolence in the community. [22] The first offence on Mr. Ladue’s criminal record occurred in 1978 when he was 16 years old. His record lists over40 convictions since that time, approximately 10 of which were as a young offender. Some of the offences are property-related, includingtaking a vehicle without consent, mischief, breaking and entering, and theft. Mr.

Ladue also has a series of alcohol-related offences andconvictions for failure to comply with various court orders. His violent offences include robbery convictions in 1978 and 1980, andcommon assault convictions in 1979 and 1982. Mr. Ladue has also been convicted of a number of sexual assaults. These sexual assaultswill be described in some detail, as they ultimately led to his designation as a long-term offender. [23] In 1987, Mr. Ladue entered a woman’s bedroom following a party. He sexually assaulted the victim while she waseither sleeping or passed out from intoxication. In 1997, Mr.

Ladue sexually assaulted another woman who was passed out fromintoxication. When she awoke, the bottom half of her clothing was removed and Mr. Ladue was sexually assaulting her. Another incidenttook place in 1998, although it did not lead to a conviction for sexual assault. Mr. Ladue entered the home of a woman who was sleepingand placed a sleeping bag over her head and shoulders. He was interrupted by the woman’s daughter and he fled the residence.Mr. Ladue’s sentences for these convictions ranged from four months’ imprisonment (for the 1998 offence) to 30 months’ imprisonment. [24] Mr.

Ladue committed the offence giving rise to his LTSO on October 6, 2002. On that date, he entered a dwellinghouse without permission from the occupants. The 22-year-old victim had passed out from alcohol consumption and was lying in theliving room. She awoke to find Mr. Ladue touching her breasts over her clothing and attempting to unbutton her pants. She was unable toresist due to her state of intoxication. Fortunately, other residents of the house were awakened by what was going on and Mr. Ladue fledfrom the home. Mr.

Ladue was convicted of breaking and entering and sexual assault. [25] At the sentencing hearing (2003 YKTC 100 ), Judge Faulkner of the Yukon Territorial Court noted thesimilarity surrounding the circumstances of each sexual assault. The psychological assessment prepared for the court indicated thatMr. Ladue was incapable of refraining from the use of alcohol and was unable to control his sexual impulses. He was also diagnosed as asexual sadist and as having an antisocial personality disorder. Faulkner Terr. Ct.

J. nevertheless concluded that there was some prospectfor eventual management in the community, given Mr. Ladue’s lengthy period of successful sobriety in the 1990s, which coincided witha period free from criminal activity. Defence counsel conceded that the requirements of s. 753.1 of the Criminal Code were met, and Mr.Ladue was designated as a long-term offender. Faulkner Terr. Ct. J. sentenced Mr. Ladue to three years’ imprisonment for breaking andentering and committing sexual assault, after taking into account the 14 months he had spent in custody prior to sentencing. He alsoimposed a seven-year LTSO. B.

The Current Offence [26] Mr. Ladue’s LTSO began on December 1, 2006, when he was released from prison for the 2002 offence giving riseto the LTSO. The LTSO has been suspended on numerous occasions. In addition, Mr. Ladue’s criminal record includes two previousconvictions for breaching a condition of the LTSO. On June 5, 2007, he was convicted of two counts of breaching the condition in theLTSO that he abstain from intoxicants. He received concurrent six-month sentences of imprisonment with credit for four and a halfmonths of pre-sentence custody.

On June 19, 2008, he was convicted of breaching the same condition and was sentenced to one day ofimprisonment after being credited for one year of pre-sentence custody. [27] On August 12, 2009, Mr. Ladue was released from prison following a suspension of his LTSO. He was supposed tobe released to Linkage House in Kamloops, British Columbia, where he anticipated receiving considerable culturally relevant supportfrom an Aboriginal Elder. Instead, Mr. Ladue was arrested at the prison gate on an outstanding DNA warrant.

The warrant had beenordered months earlier but, as a result of an administrative error by Crown officials, it was not executed during Mr. Ladue’s period ofdetention. Furthermore, the warrant may have been superfluous as it appears Mr. Ladue had already provided his DNA under a previouswarrant. Mr.

Ladue was detained until the warrant was executed and, as a result of that delay, he lost his placement at Linkage House.Instead, he was released to Belkin House in downtown Vancouver, despite his concerns over the propriety of the placement due to theaccessibility of drugs both in the residence and in the neighbourhood. Once at Belkin House, Mr. Ladue began associating with anotheroffender who was a known drug user. Mr. Ladue was asked to provide a urine sample on August 19. On August 24, he advised the staffthat the urinalysis would come back positive for cocaine, which it did. Mr.

Ladue provided a second urine sample on August 27, whichalso returned positive for cocaine. He was charged with breaching a condition of his LTSO, contrary to s. 753.3(1) of the Criminal Codeand pleaded guilty to that offence on February 10, 2010. C. Judicial History

(1) Provincial Court of British Columbia, 2010 BCPC 410 [28] At the sentencing hearing, the Crown requested a sentence in the range of 18 months to two years. Bagnall Prov. Ct.J. concluded that this range was inadequate in the circumstances. She emphasized the serious nature of the offence: Once released from custody, even under close supervision, Mr. Ladue’s pattern is to relapse very quickly back into drug oralcohol use. He cannot be managed, nor can he manage himself in the community at the present time. The harm that is likely for another

member of the community, or members of the community, if Mr. Ladue consumes intoxicants is very serious. This can be seen from thehistory that I have detailed. [para. 31] Bagnall Prov. Ct. J. therefore held that isolation was the most important sentencing objective in the circumstances and imposed a three-year term of imprisonment, less five months of pre-sentence custody at a 1.5:1 credit rate. Bagnall Prov. Ct. J. referred to the tragicaspects of Mr. Ladue’s history, but apparently concluded that they should not impact on his sentence.

(2) Court of Appeal for British Columbia, 2011 BCCA 101, 302 B.C.A.C. 93 [29] Mr. Ladue appealed his sentence on the grounds that the sentencing judge failed to adequately consider hiscircumstances as an Aboriginal offender, and that the ultimate sentence was unfit. The majority of the Court of Appeal allowed hisappeal and reduced the sentence to one year’s imprisonment. Chiasson J.A., dissenting, would have allowed the appeal and imposed atwo-year sentence. [30] Bennett J.A., writing for the majority, began by reviewing the principles and objectives of sentencing set out in theCriminal Code. She discussed, in detail, s. 718.2(

e) of the Code and this Court’s decision in Gladue. Bennett J.A. concluded that,although the sentencing judge was alive to Mr. Ladue’s unique circumstances as an Aboriginal offender, she did not give any tangibleconsideration to those circumstances in determining the appropriate sentence. As a result, the sentencing judge had overemphasized theobjective of isolation of the offender at the expense of rehabilitation and failed to meet the requirements of s. 718.2(e): “If effect is to begiven to Parliament’s direction in s. 718.2(e), then there must be more than a reference to the provision.

It must be given substantiveweight, which will often impact the length and type of sentence imposed” (para. 64). [31] Bennett J.A. concluded that a three-year sentence was not proportionate to the gravity of the offence and the degreeof responsibility of the offender, especially considering Mr. Ladue’s background and how he came to be at Belkin House. At para. 63,she states: Mr. Ladue desires to succeed, as exhibited by his request not to be sent to Belkin House. However, he is addicted to drugsand alcohol, which can directly be related to how he was treated as an Aboriginal person.

He has not reoffended in a manner whichthreatens the safety of the public. He will ultimately be released into the community without supervision. Unless he can manage hisalcohol and drug addiction in the community he will very likely be a threat to the public. Repeated efforts at abstinence are not unusualfor those dealing with addiction. Indeed, Mr. Ladue demonstrated that he is capable of abstinence as shown by his conduct a number ofyears ago.

Bennett J.A. therefore reduced the sentence to one year’s imprisonment. [32] Chiasson J.A. would have allowed the appeal and reduced the sentence to two years’ imprisonment. He did notagree with the majority that the sentencing judge had erred in her consideration of Mr. Ladue’s Aboriginal circumstances. However, inChiasson J.A.’s view, the sentencing judge had been wrong in failing to consider that the present breach did not place Mr. Ladue on thepath to reoffending. In Chiasson J.A.’s view, a sentence of two years was a sufficient step-up from Mr. Ladue’s previous sentence toreflect the severity of the offence.

Imposing a sentence of three years, on the other hand, would risk placing Mr. Ladue beyond hope ofredemption. IV. Issues [33] These two appeals raise issues concerning the application of the principles and objectives of sentencing set out inPart XXIII of the Criminal Code. Specifically, the Court must determine the principles governing the sentencing of Aboriginal offenders,including the proper

interpretation and application of this Court’s judgment in Gladue, and the application of those principles to thebreach of an LTSO. Finally, given those principles, the Court must determine whether either of the decisions under appeal contains anerror in principle or imposes an unfit sentence warranting appellate intervention. V. Analysis A. The Principles of Sentencing [34] The central issue in these appeals is how to determine a fit sentence for a breach of an LTSO in the case of anAboriginal offender.

In particular, the Court must address whether, and how, the Gladue principles apply to these sentencing decisions.But first, it is important to review the principles that guide sentencing under Canadian law generally. [35] In 1996, Parliament amended the Criminal Code to specifically codify the objectives and principles of sentencing(An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22 (Bill C-41)). According to s.718, the fundamental purpose of sentencing is to contribute to “respect for the law and the maintenance of a just, peaceful and safesociety”.

This is accomplished by imposing “just sanctions” that reflect one or more of the traditional sentencing objectives:denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation to victims, and promoting a sense ofresponsibility in offenders and acknowledgment of the harm done to victims and to the community. [36] The Criminal Code goes on to list a number of principles to guide sentencing judges.

The fundamental principle ofsentencing is that the sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender.As this Court has previously indicated, this principle was not borne out of the 1996 amendments to the Code but, instead, has long been acentral tenet of the sentencing process (see, e.g., R. v. Wilmott (1966), (ON CA), 58 D.L.R. (2d) 33 (Ont. C.A.), and,more recently, R. v. Solowan, 2008 SCC 62, [2008] 3 S.C.R. 309, at para. 12, and R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, atparas. 40-42).

It also has a constitutional dimension, in that s. 12 of the Canadian Charter of Rights and Freedoms forbids the impositionof a grossly disproportionate sentence that would outrage society’s standards of decency. In a similar vein, proportionality in sentencingcould aptly be described as a principle of fundamental justice under s. 7 of the Charter.

[37] The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose ofsentencing — the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge maywish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamentalprinciple of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects thegravity of the offence. This is closely tied to the objective of denunciation.

It promotes justice for victims and ensures public confidencein the justice system. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, (SCC), [1985] 2S.C.R. 486, at p. 533: It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit”sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender “deserved” thepunishment he received and feel a confidence in the fairness and rationality of the system.

Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness ofthe offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadiancriminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense ofthe other. [38] Despite the constraints imposed by the principle of proportionality, trial judges enjoy a broad discretion in thesentencing process.

The determination of a fit sentence is, subject to any specific statutory rules that have survived Charter scrutiny, ahighly individualized process. Sentencing judges must have sufficient manoeuvrability to tailor sentences to the circumstances of theparticular offence and the particular offender. Appellate courts have recognized the scope of this discretion and granted considerabledeference to a judge’s choice of sentence. As Lamer C.J. stated in R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para.90: Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriatefactors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. Parliamentexplicitly vested sentencing judges with a discretion to determine the appropriate degree and kind of punishment under the CriminalCode. [Emphasis in original.] [39] There are limits, however, to the deference that will be afforded to a trial judge.

Appellate courts have a duty toensure that courts properly apply the legal principles governing sentencing. In every case, an appellate court must be satisfied that thesentence under review is proportionate to both the gravity of the offence and the degree of responsibility of the offender. I will now turnto an assessment of these factors as they pertain to the present appeals. B. The Offence — Sentencing for Breach of a Long-Term Supervision Order [40] These two appeals involve persons designated as long-term offenders who are charged with breaching a condition oftheir LTSOs.

This is the first time the Court has had the opportunity to discuss this particular offence. In order to weigh the variousprinciples and objectives of sentencing and reach a conclusion regarding a fit sentence, it is important to understand the long-termoffender regime. [41]

Part XXIV of the Criminal Code sets out the process for designating offenders as either dangerous or long-termoffenders. Special provisions to deal with the unique circumstances of habitual repeat offenders have existed in Canada since the firsthalf of the twentieth century. In 1938, the Archambault Commission recommended that legislation be enacted to provide for theindeterminate detention of hardened criminals (Report of the Royal Commission to Investigate the Penal System of Canada).

The purposeof this detention, according to the Commission, was to be “neither punitive nor reformative but primarily segregation from society” (citedin R. v.

Lyons, (SCC), [1987] 2 S.C.R. 309, at pp. 321-22). [42] In 1947, Canada acted on the recommendations of the Archambault Commission and introduced its first piece oflegislation authorizing the indeterminate detention of “habitual criminals” (An Act to amend the Criminal Code, S.C. 1947, c. 55, s. 18).Amendments made in 1977 narrowed the scope of the provision to specifically target “dangerous offenders” — those convicted ofserious personal injury offences (Criminal Law Amendment Act, 1977, S.C. 1977, c. 53, s. 14).

La Forest J. described the rationale of thelegislation in Lyons, at p. 329: It is thus important to recognize the precise nature of the penological objectives embodied in

Part XXI [now PartXXIV]. It is clear that the indeterminate detention is intended to serve both punitive and preventive purposes. Both are legitimate aims ofthe criminal sanction. Indeed, when society incarcerates a robber for, say, ten years, it is clear that its goal is both to punish the personand prevent the recurrence of such conduct during that period. Preventive detention in the context of

Part XXI, however, simplyrepresents a judgment that the relative importance of the objectives of rehabilitation, deterrence and retribution are greatly attenuated inthe circumstances of the individual case, and that of prevention, correspondingly increased.

Part XXI merely enables the court toaccommodate its sentence to the common sense reality that the present condition of the offender is such that he or she is not inhibited bynormal standards of behavioural restraint so that future violent acts can quite confidently be expected of that person. In suchcircumstances it would be folly not to tailor the sentence accordingly. [Emphasis in original.] [43] The rationale for the dangerous offender designation can be contrasted with that of the long-term offenderprovisions, which were not introduced to the Criminal Code until 1997. That year, extensive amendments were made to

Part XXIV ofthe Criminal Code by Bill C-55 (An Act to amend the Criminal Code (high risk offenders), the Corrections and Conditional Release Act,the Criminal Records Act, the Prisons and Reformatories Act and the Department of the Solicitor General Act, S.C. 1997, c. 17). Theseamendments, following the recommendations of the Federal/Provincial/Territorial Task Force on High-Risk Violent Offenders (“TaskForce”), introduced the long-term offender designation and the availability of LTSOs.

The Task Force noted that a lacuna existed in thelaw whereby serious offenders were denied the support of extended community supervision, except through the parole process. LTSOswere designed to fill this gap and supplement the all-or-nothing alternatives of definite or indefinite detention (Report of theFederal/Provincial/Territorial Task Force on High-Risk Violent Offenders, Strategies for Managing High-Risk Offenders (1995)).

[ 44 ]

Section 753.1(1) of the Criminal Code now directs when a court may designate an offender as a long-term offender. The

section states: 753.1

(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that (

a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (

b) there is a substantial risk that the offender will reoffend; and (

c) there is a reasonable possibility of eventual control of the risk in the community. If the court finds an offender to be a long-term offender, it must impose a sentence of two years or more for the predicate offence and order that the offender be subject to long-term supervision for a period not exceeding 10 years ( Criminal Code , s. 753.1(3)). [ 45 ] LTSOs are administered in accordance with the Corrections and Conditional Release Act , S.C. 1992, c. 20 (“ CCRA ”). LTSOs must include the conditions set out in s. 161(1) of the Corrections and Conditional Release Regulations , SOR/92-620.

In addition, the National Parole Board (“NPB”) may include any other condition “that it considers reasonable and necessary in order to protect society and to facilitate the successful reintegration into society of the offender” ( CCRA , s. 134.1(2)). A member of the NPB may suspend an LTSO when an offender breaches any of the LTSO conditions, or where the NPB is satisfied that suspension is necessary and reasonable to prevent such a breach or to protect society ( CCRA , s. 135.1(1)). Offenders serve the duration of the period of suspension in a federal penitentiary.

Failure or refusal to comply with an LTSO is also an indictable offence under s. 753.3(1) of the Criminal Code , punishable by up to 10 years’ imprisonment. [ 46 ] According to the CCRA , “[t]he purpose of conditional release is to contribute to the maintenance of a just, peaceful and safe society by means of decisions on the timing and conditions of release that will best facilitate the rehabilitation of offenders and their reintegration into the community as law-abiding citizens” ( s. 100 ). The CCRA also sets out a number of principles that shall guide the NPB in achieving the purpose of conditional release.

These include, inter alia , “that the protection of society be the paramount consideration in the determination of any case” and “that parole boards make the least restrictive determination consistent with the protection of society” ( CCRA , ss. 101(

a) and 101( d )). These principles are intended to guide the NPB in its decision making, whereas courts must adhere to the principles set out in the Criminal Code when sentencing for breach of an LTSO. [ 47 ] The legislative purpose of an LTSO, a form of conditional release governed by the CCRA , is therefore to contribute to the maintenance of a just, peaceful and safe society by facilitating the rehabilitation and reintegration of long-term offenders. This direction is consistent with this Court’s discussion at para. 42 of R. v.

L.M. , 2008 SCC 31 , [2008] 2 S.C.R. 163, on the distinction between the dangerous offender designation (which does not include a period of conditional release) and the long-term offender designation. Although they both contribute to assuring public safety, the dangerous offender and long-term offender designations have different objectives. Unlike a dangerous offender (s. 753 Cr.

C. ), who will continue to be deprived of liberty, since such offenders are kept in prison to separate them from society ( s. 718.1 ), a long-term offender serves a sentence of imprisonment of two years or more and is then subject to an order of supervision in the community for a period not exceeding 10 years for the purpose of assisting in his or her rehabilitation ( s. 753.1(3) Cr. C. ).

This measure, which is less restrictive than the indeterminate period of incarceration that applies to dangerous offenders, protects society and is at the same time consistent with [ translation ] “the principles of proportionality and moderation in the recourse to sentences involving a deprivation of liberty” (Dadour, at p. 228). [Emphasis in original.] [ 48 ] Reading the Criminal Code , the CCRA and the applicable jurisprudence together, we can therefore identify two specific objectives of long-term supervision as a form of conditional release: (1) protecting the public from the risk of reoffence, 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 offenders. This, in turn, has affected their determinations of what is a fit sentence for breaching a condition of an LTSO. [ 49 ] R. v. W. (H.P.) , 2003 ABCA 131 , 18 Alta. L.R. (4th) 20, is the leading appellate court decision to consider the matter.

In that case, the Alberta Court of Appeal canvassed the purpose of the long-term offender regime and how it bears on the sentencing process for breach of an LTSO. Ritter J.A. summarized the view of the court, at para. 46, stating: Because the protection of society is the paramount goal when sentencing an offender who has breached a condition of his long-term offender supervision order, sentencing principles respecting specific and general deterrence together with separation of the offender from the community are called into play.

Rehabilitation has a limited role to play as the status of long-term offender is such that rehabilitation has already been determined to be extremely difficult or impossible to achieve. Subsequent provincial and appellate court cases have generally adhered to this approach. For example, in R. v. Nelson , [2007] O.J.

No. 5704 (QL) , Masse J. of the Ontario Court of Justice held, at paras. 14 and 21, that “[t]he main consideration in sentencing these offenders is the protection of the public” and that “significant sentences must be imposed even for slight breaches of a long-term supervision order”. [ 50 ] The foregoing characterization of the long-term offender regime is incorrect. The purpose of an LTSO is two-fold: to protect the public and to rehabilitate offenders and reintegrate them into the community.

In fact, s. 100 of the CCRA singles out rehabilitation and reintegration as the purpose of community supervision including LTSOs. As this Court indicated in L.M. , rehabilitation is the key feature of the long-term offender regime that distinguishes it from the dangerous offender regime. To suggest, therefore, that rehabilitation has been determined to be impossible to achieve in the long-term offender context is simply wrong. Given this context, it would be contrary to reason to conclude that rehabilitation is not an appropriate sentencing objective and should therefore

play “little or no role” (as stated in W. (H.P.) , at para. 50 ), in the sentencing process. [ 51 ] This is not to say that rehabilitation will always be the foremost consideration when sentencing for breach of an LTSO. The duty of a sentencing judge is to apply all of the principles mandated by ss. 718.1 and 718.2 of the Criminal Code in order to devise a sentence that furthers the overall objectives of sentencing.

The foregoing simply demonstrates that there is nothing in the provisions of the Criminal Code or the CCRA to suggest that any of those principles or objectives will not apply to the breach of an LTSO. As with any sentencing decision, the relative weight to be accorded to each sentencing principle or objective will vary depending on the circumstances of the particular offence.

In all instances, the sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender. [ 52 ] It would be imprudent to attempt to determine in the abstract the gravity of the offence of breaching a condition of an LTSO. 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 reoffence, and the circumstances of the breach.

However, a few comments may be instructive. [ 53 ] Breach of an LTSO is an indictable offence punishable by up to 10 years’ imprisonment. This can be contrasted with breach of probation which is a hybrid offence with a maximum sentence of either 18 months or two years’ imprisonment. In each of the present appeals, the Crown places significant emphasis on this distinction, suggesting that the high maximum penalty indicates that breach of an LTSO is a particularly serious offence warranting a significant sentence.

My colleague, Rothstein J., reiterates this point at para. 123, concluding that 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”. [ 54 ] The lengthy maximum penalty certainly indicates that Parliament views the breach of an LTSO differently (and more seriously) than the breach of a probation order.

However, it would be too much to suggest that the mere existence of a high statutory maximum penalty dictates that a significant period of imprisonment should be imposed for any breach of an LTSO. Breaches can occur in an infinite variety of circumstances. Parliament did not see fit to impose a mandatory minimum sentence. Where no minimum sentence is mandated by the Criminal Code , the entire range of sentencing options is open to a sentencing judge, including non-carceral sentences where appropriate.

In its recommendations, the Task Force specifically stated that a key factor to the success of a long-term offender regime is “a speedy and flexible mechanism for enforcing the orders which does not result in lengthy re-incarceration in the absence of the commission of a new crime” (p. 19 (emphasis added)). [ 55 ] It is the sentencing judge’s duty to determine, within this open range of sentencing options, which sentence will be proportionate to both the gravity of the offence and the degree of responsibility of the offender.

The severity of a particular breach of an LTSO will depend, in large part, on the circumstances of the breach, the nature of the condition breached, and the role that condition plays in managing the offender’s risk of reoffence in the community. This requires a contextual analysis. As Smith J.A. states in R. v. Deacon , 2004 BCCA 78 , 193 B.C.A.C. 228, at para. 51 , “the gravity of an offence under s. 753.3 must be measured with reference not only to the conduct that gave rise to the offence, but also with regard to what it portends in light of the offender’s entire history of criminal conduct”.

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 . C. The Offender — Sentencing Aboriginal Offenders [ 56 ]

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 ”. This provision was introduced into the Code as part of the 1996 Bill C-41 amendments to codify the purpose and principles of sentencing.

According to the then-Minister of Justice, Allan Rock, “the reason we referred specifically there to aboriginal persons is that they are sadly overrepresented in the prison populations of Canada” (House of Commons, Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs , No. 62, 1st Sess., 35th Parl., November 17, 1994, at p. 15). [ 57 ] Aboriginal persons were sadly overrepresented indeed. Government figures from 1988 indicated that Aboriginal persons accounted for 10 percent of federal prison inmates, while making up only 2 percent of the national population.

The figures were even more stark in the Prairie provinces, where Aboriginal persons accounted for 32 percent of prison inmates compared to 5 percent of the population. The situation was generally worse in provincial institutions. For example, Aboriginal persons accounted for fully 60 percent of the inmates detained in provincial jails in Saskatchewan (M. Jackson, “Locking Up Natives in Canada” (1989), 23 U.B.C. L. Rev. 215, at pp. 215-16). There was also evidence to indicate that this overrepresentation was on the rise.

At Stony Mountain penitentiary, the only federal prison in Manitoba, the Aboriginal inmate population had been climbing steadily from 22 percent in 1965 to 33 percent in 1984, and up to 46 percent just five years later in 1989 (Commissioners A. C. Hamilton and C. M. Sinclair, Report of the Aboriginal Justice Inquiry of Manitoba , vol. 1, The Justice System and Aboriginal People (1991), at p. 394).

The foregoing statistics led the Royal Commission on Aboriginal Peoples (“RCAP”) to conclude, at p. 309 of its Report, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada (1996): The Canadian criminal justice system has failed the Aboriginal peoples of Canada — First Nations, Inuit and Métis people, on-reserve and off-reserve, urban and rural — in all territorial and governmental jurisdictions.

The principal reason for this crushing failure is the fundamentally different world views of Aboriginal and non-Aboriginal people with respect to such elemental issues as the substantive content of justice and the process of achieving justice. [ 58 ] The overrepresentation of Aboriginal people in the Canadian criminal justice system was the impetus for including the specific reference to Aboriginal people in s. 718.2 ( e ). It was not at all clear, however, what exactly the provision required or how it would affect the sentencing of Aboriginal offenders.

In 1999, this Court had the opportunity to address these questions in Gladue . Cory and Iacobucci JJ., writing for the unanimous Court, reviewed the statistics and concluded, at para. 64: These findings cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it. 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. It is reasonable to assume that Parliament, in singling out aboriginal offenders for distinct sentencing treatment in s. 718.2 ( e ), intended to attempt to redress this social problem to some degree. The provision may properly be seen as Parliament’s direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process. [ 59 ] The Court held, therefore, that s. 718.2(

e) of the 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 ( Gladue , at para. 93). It 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.

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 ( Gladue , at para. 37). 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 ( Gladue , at para. 66).

Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report ( Gladue , at paras. 83-84). [ 60 ] Courts have, at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society (see, e.g., R. v. Laliberte , 2000 SKCA 27 , 189 Sask. R. 190).

To be clear, 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, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel.

Counsel have a duty to bring that individualized information before the court in every case, unless the offender expressly waives his right to have it considered. In current practice, it appears that case-specific information is often brought before the court by way of a Gladue report, which is a form of pre-sentence report tailored to the specific circumstances of Aboriginal offenders.

Bringing such information to the attention of the judge in a comprehensive and timely manner is helpful to all parties at a sentencing hearing for an Aboriginal offender, as it is indispensable to a judge in fulfilling his duties under s. 718.2 (

e) of the Criminal Code . [ 61 ] It would have been naive to suggest that sentencing Aboriginal persons differently, without addressing the root causes of criminality, would eliminate their overrepresentation in the criminal justice system entirely. In Gladue , Cory and Iacobucci JJ. were mindful of this fact, yet retained a degree of optimism, stating, at para. 65: It is clear that sentencing innovation by itself cannot remove the causes of aboriginal offending and the greater problem of aboriginal alienation from the criminal justice system.

The unbalanced ratio of imprisonment for aboriginal offenders flows from a number of sources, including poverty, substance abuse, lack of education, and the lack of employment opportunities for aboriginal people. It arises also from bias against aboriginal people and from an unfortunate institutional approach that is more inclined to refuse bail and to impose more and longer prison terms for aboriginal offenders. There are many aspects of this sad situation which cannot be addressed in these reasons.

What can and must be addressed, though, is the limited role that sentencing judges will play in remedying injustice against aboriginal peoples in Canada. Sentencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system.

They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime. [ 62 ] This cautious optimism has not been borne out. In fact, statistics indicate that the overrepresentation and alienation of Aboriginal peoples in the criminal justice system has only worsened.

In the immediate aftermath of Bill C-41, from 1996 to 2001, Aboriginal admissions to custody increased by 3 percent while non-Aboriginal admissions declined by 22 percent (J. V. Roberts and R. Melchers, “The Incarceration of Aboriginal Offenders: Trends from 1978 to 2001” (2003), 45 Can. J. Crim. & Crim. Just. 211, at p. 226). From 2001 to 2006, there was an overall decline in prison admissions of 9 percent. During that same time period, Aboriginal admissions to custody increased by 4 percent (J.

Rudin, “Addressing Aboriginal Overrepresentation Post- Gladue : A Realistic Assessment of How Social Change Occurs” (2009), 54 Crim. L.Q. 447, at p. 452). As a result, the overrepresentation of Aboriginal people in the criminal justice system is worse than ever. Whereas Aboriginal persons made up 12 percent of all federal inmates in 1999 when Gladue was decided, they accounted for 17 percent of federal admissions in 2005 (J. Rudin, “Aboriginal Over-representation and R. v. Gladue : Where We Were, Where We Are and Where We Might Be Going”, in J. Cameron and J.

Stribopoulos, eds., The Charter and Criminal Justice: Twenty-Five Years Later (2008), 687, at p. 701). As Professor Rudin asks: “If Aboriginal overrepresentation was a crisis in 1999, what term can be applied to the situation today?” (“Addressing Aboriginal Overrepresentation Post- Gladue ”, at p. 452). [ 63 ] Over a decade has passed since this Court issued its judgment in Gladue . As the statistics indicate, s. 718.2 (

e) of the Criminal Code has not had a discernible impact on the overrepresentation of Aboriginal people in the criminal justice system. Granted, the Gladue principles were never expected to provide a panacea. There is some indication, however, from both the academic commentary and the jurisprudence, that the failure can be attributed to some extent to a fundamental misunderstanding and misapplication of both s. 718.2(

e) and this Court’s decision in Gladue . The following is an attempt to resolve these misunderstandings, clarify certain ambiguities, and provide additional guidance so that courts can properly implement this sentencing provision.

(1) Making Sense of Aboriginal Sentencing [ 64 ]

Section 718.2 (

e) of the Criminal Code and this Court’s decision in Gladue were not universally well received. Three interrelated criticisms have been advanced: (1) sentencing is not an appropriate means of addressing overrepresentation; (2) the Gladue principles provide what is essentially a race-based discount for Aboriginal offenders; and (3) providing special treatment and lesser sentences to Aboriginal offenders is inherently unfair as it creates unjustified distinctions between offenders who are similarly situated, thus violating the principle of sentence parity. In my view, these criticisms are based on a fundamental misunderstanding of the operation of s. 718.2(

e) of the Criminal Code .

[ 65 ] Professors Stenning and Roberts describe the sentencing provision as an “empty promise” to Aboriginal peoples because it is unlikely to have any significant impact on levels of overrepresentation (P. Stenning and J. V. Roberts, “Empty Promises: Parliament, The Supreme Court, and the Sentencing of Aboriginal Offenders” (2001), 64 Sask. L. Rev. 137, at p. 167). As we have seen, the direction to pay particular attention to the circumstances of Aboriginal offenders was included in light of evidence of their overrepresentation in Canada’s prisons and jails.

This overrepresentation led the Aboriginal Justice Inquiry of Manitoba to ask in its Report: “Why, in a society where justice is supposed to be blind, are the inmates of our prisons selected so overwhelmingly from a single ethnic group? Two answers suggest themselves immediately: either Aboriginal people commit a disproportionate number of crimes, or they are the victims of a discriminatory justice system” (p. 85; see also RCAP, at p. 33). The available evidence indicates that both phenomena are contributing to the problem (RCAP). Contrary to Professors Stenning and Roberts, addressing these matter

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