R. v. Ipeelee

R. v. Ipeelee
Collection
Supreme Court Judgments
Date
2012-03-23
Neutral citation
2012 SCC 13
Report
[2012] 1 SCR 433
Case number
33650, 34245
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Rothstein, Marshall
On appeal from
British Columbia
Subjects
Criminal law
Notes
SCC Case Information: 34245, 33650
Decision Content
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 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 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 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.
In the instant case of I, the courts below made several errors in principle warranting appellate intervention. The courts below erred in concluding that rehabilitation was not a relevant sentencing objective. As a result of this error, the courts below gave only attenuated 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 and objectives 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 of the 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 case does not specifically address the issue of the sentencing of Aboriginal offenders who have been found to be long‑term offenders and have been found guilty of breaching a condition of an LTSO. They have not taken account of the difference between the objectives and requirements of LTSOs for long‑term offenders who abide by the conditions of their LTSOs and the objectives and requirements of sentencing 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 into doubt whether, despite supervision, the long‑term offender has demonstrated that the substantial risk of reoffending in a violent manner in the community by the long‑term offender can be adequately managed. Section 753.3(1) of the Criminal Code provides that a breach of an LTSO constitutes an indictable offence, as opposed to a hybrid offence, with a maximum sentence of 10 years. The maximum term is 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 to the protection of society that long‑term offenders may have to be separated from society for a significant period of time. Where a breach is central to the substantial risk of reoffending, such as where alcohol or substance consumption has been found to be the trigger for violent 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 a sentence, and all available sanctions other than imprisonment that are reasonable in the circumstances for all offenders, with particular attention to Aboriginal offenders, including long‑term Aboriginal offenders. As with all sentencing, this must be done with regard to the particular individual, the threat they pose, and their chances of rehabilitation and reintegration. Evaluating these options lies within the discretion of the sentencing judge. In the case of long‑term offenders, the paramount consideration is the protection of society. This applies to all long‑term offenders, including Aboriginal long‑term offenders who have compromised the management of their risk of reoffending 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 of his or her LTSO, alternatives to a significant prison term will be limited. The alternatives to imprisonment must be viable and the sentencing judge must be satisfied that they are consistent with protection of society. Alternatives may include returning Aboriginal offenders 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 of an 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 society for a significant period of time. Nevertheless, during the period of incarceration, the Aboriginal status of the long‑term offender should be taken into account for the purpose of providing appropriate programs that are intended to rehabilitate the offender so that upon release, 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 should be dismissed. The sentencing judge’s findings demonstrate a thorough appreciation of the circumstances. He properly recognized that protection of the public was the paramount concern in breaches of LTSOs. As a long‑term offender, I has been found to show a pattern of repetitive behaviour with a likelihood of causing death or physical or psychological injury or a likelihood of causing injury, pain or other evil to other persons in the future through failure to control his sexual impulses. His alcohol consumption is central to such behaviour.
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. The sentencing judge found that the only way to protect the community, given L’s high risk of reoffending sexually and moderate to high risk of reoffending violently, was to emphasize the objective of isolation. She noted that even if L did not commit a substantive offence, his breach 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 a residential halfway house, which apparently tolerates serious drug abusers and does not provide programs for Aboriginal offenders. This failure meant that L’s moral blameworthiness was not properly assessed.
Cases Cited
By LeBel J.
Applied: R. v. Gladue, [1999] 1 S.C.R. 688; referred to: R. v. Wilmott (1966), 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; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Lyons, [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, 18 Alta. 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, 2000 SKCA 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, 261 B.C.A.C. 245; R. v. Carrière (2002), 164 C.C.C. (3d) 569; R. v. Kakekagamick (2006), 214 O.A.C. 127; R. v. Jensen (2005), 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, [1999] 1 S.C.R. 688; R. v. M. (C.A.), [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 , the Prisons 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 Force on 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, 1st Sess., 35th Parl., November 17, 1994, p. 15.
Canada. Royal Commission on Aboriginal Peoples. Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada. Ottawa: The Commission, 1996.
Canada. Royal Commission to Investigate the Penal System of Canada. Report of the Royal Commission to Investigate the Penal System of 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 of Manitoba, 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), 39 Osgoode Hall L.J. 469.
Quigley, Tim. “Some Issues in Sentencing of Aboriginal Offenders”, in Richard Gosse, James Youngblood Henderson and Roger Carter, 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 Aboriginal Offenders” (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 (CanLII), [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 Civil Liberties 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 of long-term supervision orders (“LTSOs”). Both appeals concern Aboriginal offenders with long criminal records. They provide an opportunity to revisit and reaffirm the judgment of this Court in R. v. Gladue, [1999] 1 S.C.R. 688. I propose to allow 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 from the experience of most Canadians. His mother was an alcoholic. She froze to death when Manasie Ipeelee was five years old. He was raised by his maternal grandmother and grandfather, both of whom are now deceased. Mr. Ipeelee began consuming alcohol when he was 11 years old and quickly developed a serious alcohol addiction. He dropped out of school shortly thereafter. His involvement with the 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 some form of community supervision. His youth record contains approximately three dozen convictions. The majority of those offences were property-related, including breaking and entering, theft, and taking a vehicle without consent (joyriding). There were also convictions for failure to comply with an undertaking, breach of probation, and being unlawfully at large. Mr. Ipeelee’s adult record contains another 24 convictions, many of which are for similar types of offences. He has also committed violent crimes. His record includes two convictions for assault causing bodily harm and one conviction each for aggravated assault, sexual assault, and sexual assault causing bodily harm. I will 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 who was refusing them entry to his home. Mr. Ipeelee was intoxicated at the time. During the fight, he hit the victim over the head with an ashtray 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 place outside a bar in Iqaluit and both Mr. Ipeelee and the victim were intoxicated. Witnesses saw Mr. Ipeelee kicking the victim in the face at least 10 times, and the assault continued after the victim lost consciousness. The victim was hospitalized for his injuries. At the time of the 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 altercation outside the same bar in Iqaluit. Once more, both Mr. Ipeelee and the victim were intoxicated. During the fight, Mr. Ipeelee hit and kicked the victim. After the victim lost consciousness, Mr. Ipeelee continued to hit him and stomp on his face. The victim suffered a broken jaw and 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 14 months’ imprisonment.
[7] Mr. Ipeelee received an early release from that sentence in the fall of 1995. Approximately three weeks later, while still technically serving his sentence, he committed a sexual assault. The female victim had been drinking in her apartment in Iqaluit with Mr. Ipeelee and others, and was passed out from intoxication. Witnesses observed Mr. Ipeelee and another man carrying the victim into her 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 be a high risk to reoffend.
[8] After serving his sentence, Mr. Ipeelee moved to Yellowknife. He began drinking within one half-hour of his arrival and was arrested for public intoxication that evening, and again 24 hours later. In the six months leading up to his next conviction, 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 his designation 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 punching her 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 was finally able to escape when Mr. Ipeelee fell asleep. He was arrested and the victim was taken to the hospital to be treated for her injuries.
[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 people while 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 evidence produced at the sentencing hearing indicated that Mr. Ipeelee did not suffer from any major mental illness and had average to above average 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 risk for sexual reoffence. After evaluating all of the evidence, Richard J. concluded that there was a substantial risk that Mr. Ipeelee would reoffend 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 was sentenced 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 LTSO came into effect on March 14, 2007, when he was released from Kingston Penitentiary to the Portsmouth Community Correctional Centre 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 performance and behaviour, and attitude problems; from July 23 to September 14, 2007, for sleeping in the living room and the kitchen, contrary to house rules; from September 24 to October 24, 2007, for being agitated and noncompliant, and for refusing urinalysis; and from October 25, 2007, to May 20, 2008, as a result of a fraud charge being laid against him (the charge was subsequently withdrawn). Mr. Ipeelee served 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 was obviously intoxicated and had two bottles of alcohol in his possession. He was charged with breaching a condition of his LTSO, contrary to 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]. It is a very central and essential condition, because alcohol abuse was involved, not only in the “predicate” offence, but also in most of the offences on the offender’s criminal record. On his history, Mr. Ipeelee becomes violent when he abuses alcohol, and he was assessed as posing a significant risk of re-offending sexually. Defence counsel argued that the facts of the present breach disclose no movement toward 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 the protection 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 to conclude 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 did not 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 the sentencing judge’s characterization of the offence as a serious breach of a vital condition of the LTSO. Sharpe J.A. found that, despite the sentencing judge’s comments, Mr. Ipeelee’s Aboriginal status had not factored into the sentencing decision. He did not, however, think this was an error:
It is not at all clear to me, however, that in the circumstances of this case, consideration of his aboriginal status should lead to a reduction in his sentence for breach of the long-term offender condition. The appellant’s commission of violent offences and the risk he poses for re-offending when under the influence of alcohol make the principles of denunciation, deterrence and protection of the public paramount. This is one of those cases where “the appropriate sentence will . . . not differ as between aboriginal and non-aboriginal offenders”: R. v. Carrière, [2002] O.J. No. 1429, 164 C.C.C. (3d) 569 (C.A.), at para. 17. As the appellant has been declared a long-term offender, “consideration of restorative justice and other features of aboriginal offender sentencing . . . play little or no role”: R. v. W. (H.P.), [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 provided some insight into his repeated involvement with the criminal justice system. He concluded, however, that these considerations should not affect the sentence. He ended his reasons with a plea to correctional authorities to make every effort to provide Mr. Ipeelee with appropriate 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 of approximately 500 people located 400 kilometres northeast of Whitehorse in the Yukon Territory. Mr. Ladue’s parents had severe alcohol abuse problems, so he was raised by his grandparents. His mother and father both died when Mr. Ladue was still very young, and records indicate that his mother may have been murdered. When Mr. Ladue was five years old, he was removed from his community and sent 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 of his residential school experience were readily apparent. He could no longer speak his traditional language, having been forbidden to do so in residential school. Unable to communicate his painful experiences to his family, he began drinking and acting out. Before long, he was living with foster families and spending time in juvenile detention. Mr. Ladue continued to drink heavily throughout his life (with the exception of a six-year period of sobriety in the 1990s which coincided with a period free from criminal convictions). Mr. Ladue also began 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. The community suffered a number of abuses in the 1940s when the United States Army was building a pipeline through the region. There were reports of community members being assaulted or raped by members of the army. The community was further traumatized through the residential school experience. The effects of that collective experience continue to be evident in the high rates of alcohol abuse and violence 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 over 40 convictions since that time, approximately 10 of which were as a young offender. Some of the offences are property-related, including taking a vehicle without consent, mischief, breaking and entering, and theft. Mr. Ladue also has a series of alcohol-related offences and convictions for failure to comply with various court orders. His violent offences include robbery convictions in 1978 and 1980, and common assault convictions in 1979 and 1982. Mr. Ladue has also been convicted of a number of sexual assaults. These sexual assaults will 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 was either sleeping or passed out from intoxication. In 1997, Mr. Ladue sexually assaulted another woman who was passed out from intoxication. When she awoke, the bottom half of her clothing was removed and Mr. Ladue was sexually assaulting her. Another incident took place in 1998, although it did not lead to a conviction for sexual assault. Mr. Ladue entered the home of a woman who was sleeping and 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 dwelling house without permission from the occupants. The 22-year-old victim had passed out from alcohol consumption and was lying in the living room. She awoke to find Mr. Ladue touching her breasts over her clothing and attempting to unbutton her pants. She was unable to resist due to her state of intoxication. Fortunately, other residents of the house were awakened by what was going on and Mr. Ladue fled from the home. Mr. Ladue was convicted of breaking and entering and sexual assault.
[25] At the sentencing hearing (2003 YKTC 100 (CanLII)), Judge Faulkner of the Yukon Territorial Court noted the similarity surrounding the circumstances of each sexual assault. The psychological assessment prepared for the court indicated that Mr. Ladue was incapable of refraining from the use of alcohol and was unable to control his sexual impulses. He was also diagnosed as a sexual sadist and as having an antisocial personality disorder. Faulkner Terr. Ct. J. nevertheless concluded that there was some prospect for eventual management in the community, given Mr. Ladue’s lengthy period of successful sobriety in the 1990s, which coincided with a 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 and entering and committing sexual assault, after taking into account the 14 months he had spent in custody prior to sentencing. He also imposed a seven-year LTSO.
B. The Current Offence
[26]