Sentencing Rule Causing Consternation But Supported by Aboriginal Leaders

A recent Supreme Court of Canada decision mandating that aboriginal background be used in sentencing on violation of long-term supervision orders for sexual offenders is causing consternation about public safety, although its goal is to reduce the disporportionate numbers of aboriginals in prisons

A court decision that requires aboriginal background to be considered when sentencing even violent offenders on violation of court-supervision orders is causing ripples of consternation throughout the public safety community even as it receives support from aboriginal leaders.

The March 23 decision by the Supreme Court of Canada addressed the 2008 cases of two violent offenders who had violated the terms of their release by ingesting intoxicants. Manasie Ipeelee, 39, was found to be publicly intoxicated, and Frank Ladue, 40, failed a urinalysis test at a halfway house in Vancouver. Both men were found to be in violation of their long-term supervision orders (LTSO), the supervision and support of sex offenders after they’ve completed their prison sentences.

They had each served time for sexual assault. Ipeelee was released in 1999 and Ladue in 2002. In 2008, Ipeelee received a three-year prison sentence for his LTSO breach, which the Ontario court of appeal upheld. In 2009, Ladue received a three-year prison sentence for his breach, which the B.C. Court of Appeal reduced to one year.

The sentences were then referred to the Supreme Court of Canada to determine whether the principles outlined in the precedent-setting Regina versus Gladue decision apply to breaches of long-term supervision orders. Jamie Gladue was an aboriginal woman sentenced to three years in prison after pleading guilty to manslaughter for killing her common-law husband. The court decision on her case directed sentencing judges to consider background factors that brought aboriginal offenders to court and then to render culturally sensitive and appropriate sentences.

This latest supreme court decision overturns the Ontario Court of Appeal’s decision with Ipeelee, whose sentence was reduced to one year. Ladue’s reduced sentence stands.

“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,” Justice Louis LeBel wrote in his decision. “These matters provide the necessary context for understanding and evaluating the case-specific information presented by counsel.”

The goal is to keep the disproportionate number of aboriginal inmates down by seeking alternative, remedial measures for offenders. Aboriginal adults make up 30 percent of Canada’s prison population but only 2.7 percent of the country’s population, according to Canada’s Office of the Correctional Investigator.

But critics warn that public safety takes a back seat to such sentences. Giving undue weight to the aboriginal background of offenders sends the wrong message to sentencing judges and isn’t consistent with parliamentary intent, dissenting judge Marshall Rothstein wrote.

“Protection of society is the paramount consideration when it comes to such sentencing,” Rothstein noted. “The risk the aboriginal offender poses in the community is substantial, and the management of that risk has been compromised.”

Ipeelee is an Inuk whose mother died when he was a child. An alcoholic by age 12, he started breaking the law as an early teen, his crimes escalating to public intoxication, assault and sexual assault as he became an adult. Ladue, a member of the Ross River Dena Council outside Whitehorse, Yukon, is an orphaned child of alcoholics. Sent to residential school at age five, he was drinking alcohol by age nine. He has 40 criminal convictions for robbery, assault and sexual assault.

Such histories are the stuff of which violent offenders are made, and aboriginal violent offenders and incarceration rates are the product of residential schools, colonization and mass child apprehension policies, said Stewart Phillip, president of the Union of B.C. Indian Chiefs.

“We are still the most deeply traumatized people in Canadian society,” Phillip said. “This essentially is the reality that the Supreme Court took into consideration.”