A Gladue report is an indispensable sentencing tool to be provided at a sentencing hearing for an Aboriginal offender and it is also indispensable to a judge

R. v. Ipeelee, 2012 SCC 13 dealing with sentencing of Aboriginal offenders was released today. The case is of great importance for any counsel dealing with criminal matters.

The central issue in these appeals is how to determine a fit sentence for a breach of an Long Term Supervision Order 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 the community.  It is the sentencing judge's duty, adopting a contextual approach, to determine which sentencing options will be proportionate to both the gravity of the offence and the degree of responsibility of the offender. 

Sentencing is an individual process.  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 re-offence, and the circumstances of the breach.

Section 718.2(e) of the Criminal 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.  Courts must ensure that a formalistic approach to parity in sentencing does not undermine the remedial purpose of 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 of analysis in determining a fit sentence for Aboriginal offenders.  The enactment of s. 718.2(e) is a specific direction by Parliament to pay particular attention to the circumstances of Aboriginal offenders during the sentencing process because those circumstances are unique and different from those of non-Aboriginal offenders.  To the extent that current sentencing practices do not further the objectives of deterring criminality and rehabilitating offenders, those practices must change so as to meet the needs of Aboriginal offenders and their communities. 

Sentencing judges, as front-line workers in the criminal justice system, are in the best position to re-evaluate these criteria to ensure that they are not contributing to ongoing systemic racial discrimination.  Just sanctions are those that do not operate in a discriminatory manner.

When sentencing an Aboriginal offender, a judge must consider the factors outlined in R. v. Gladue, [1999] 1 S.C.R. 688:  (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.  Systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness.  Failing to take these circumstances into account would violate the fundamental principle of sentencing — that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.  The Gladue principles direct sentencing judges to abandon the presumption that all offenders and all communities share the same values when it comes to sentencing and to recognize that, given these fundamentally different world views, different or alternative sanctions may more effectively achieve the objectives of sentencing in a particular community.  The principles from Gladue are entirely consistent with the requirement that sentencing judges engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them.  Gladue affirms this requirement and recognizes that, up to this point, Canadian courts have failed to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process.  Section 718.2(e) is intended to remedy this 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, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples.  These matters 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 the Gladue 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 different offenders needs to be justified.  To the extent that the application of the Gladue  principles lead to different sanctions for Aboriginal offenders, those sanctions will be justified based on their unique circumstances — circumstances which are rationally related to the sentencing process.  Counsel has a duty to bring individualized information before the court in every case, unless the offender expressly waives his right to have it considered.  A Gladue report, which contains case-specific information, is tailored to the specific circumstances of the Aboriginal offender.  A Gladue report is an indispensable sentencing tool to be provided at a sentencing hearing for an 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 unique circumstances of Aboriginal offenders.  If the sentencing judge fails to apply the Gladue principles in any case involving an Aboriginal offender this would run afoul of this statutory obligation.  Furthermore, the failure to apply the Gladue principles in any case would also result in a sentence that is not fit and is not consistent with the fundamental principle of proportionality.  Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender, including the breach of an LTSO, and a failure to do so constitutes an error justifying appellate intervention.