High court ponders aboriginal sentencing guidelines

TERESA SMITH
Postmedia News

To what degree should the history of aboriginal people in Canada factor into how courts sentence violent offenders?

That’s the complex question that will be addressed March 23 as the Supreme Court of Canada weighs in on the controversial Gladue principle with two precedent-setting cases.

The principle, a directive from Parliament, asks judges to recognize that a history of colonization, residential schools and cultural repression has affected generations of indigenous men and women, leading to a severe over-representation of aboriginal people in Canada’s prisons.

Up to now, judges have seemingly been confused as to how the Gladue principle applies in serious and violent criminal cases, such as sexual assault and murder, said Jonathan Rudin of Aboriginal Legal Services of Toronto, which is an intervener in one of the cases.

This has led to sentencing inconsistencies across the country, he said.

He said some judges consider an offender’s background only for lesser convictions while sentencing them as harshly as non-aboriginals for murder or rape.

Other judges, said Rudin, use the principle in every case involving an aboriginal offender.

Rudin said the purpose of Gladue is not to “give aboriginals a break.”

Instead, he said, “if you look at the circumstances of the offender, you may understand the underlying reasons for the offending behaviour better and also you’ll understand what might work from a rehabilitation perspective, leading, hopefully, to a more appropriate sentence for the individual — which could be less than someone else.”

The issue stems from two very similar cases, one in British Columbia and one in Ontario, which the court decided to consider at the same time.

Both involved men with lengthy criminal records who had been designated as long-term offenders for sexual offences. Both were released from jail after serving their sentences and, as a condition of their status as long-term offenders, were subject to regular monitoring.

They also were ordered not to consume drugs or drink alcohol, as impairment of that kind was thought to have contributed to their earlier crimes.

Both men were sent back to jail after they broke that rule — Frank Ralph Ladue from Ross River, Yukon, whose cocaine and morphine use was revealed in a routine urine test; and Manasie Ipeelee from Iqaluit, who was caught riding a bike up the main street in Kingston, Ont., while severely intoxicated.

In its ruling, the Ontario court set aside Gladue because Ipeelee’s original crime was serious and violent and, by consuming alcohol, he had breached the terms of his long-term supervision.

The judge — who gave Ipeelee three years in prison — said sentences shouldn’t differ between aboriginals and non-aboriginals for breach of a long-term supervision order.

His lawyer, Fergus J. O’Connor, said that term was harsh for anyone, but was “particularly harsh for an Inuit offender who had a very deprived background.”

The B.C. court, where Ladue was sentenced, also gave him three years behind bars but, upon appeal, a majority at the B.C. Appeals court reduced the sentence to one year, noting the lower court judge “failed to properly consider the respondent’s aboriginal heritage and failed to properly emphasize rehabilitation.”

O’Connor said he hopes the B.C. Appeals court decision will be upheld and the Ontario court decision will be overturned.

“If you’re going to remedy past wrongs, then you have to sentence an aboriginal person taking into account all the hardships they’ve been put through as a culture,” he said.