Ipeelee in the Courts of Appeal: Some Progress but Much Work Remains

Abstract

This article updates my previous work that examined how Courts of Appeal were applying Gladue. Many Courts of Appeal have decided over 30 cases applying Ipeelee. Courts of Appeal continue to take to different approaches to the sentencing of Indigenous offenders. The Alberta and Saskatchewan Courts of Appeal have provided the most sustained analysis of how background circumstances can reduce moral blameworthiness while making only modest reductions in sentences on such basis. More recently, the BC , PEI and the Quebec Courts of Appeal appear more willing to make significant reductions of the type seen in Ipeelee on the basis that Gladue factors have reduced moral blameworthiness. The Manitoba and New Brunswick Courts of Appeal emerge as those that have been the most resistant to applying Gladue in serious cases. None of the Courts of Appeal have systemically related background factors to the effectiveness of deterrence, denunciation or incapacitation in responding to offending. This suggests that judicial engagement with how Gladue factors can affect moral blameworthiness has been generally superficial and many Courts of Appeal including the Ontario and Newfoundland and Labrador Courts of Appeals continue to stress the rehabilitative purposes of sentencing in their considerations of Gladue. Although consistent with the Supreme Court’s original message in Gladue, this discounts the Court’s recognition in Ipeelee that background factors can reduce moral blameworthiness and may lessen the use of Gladue in more serious cases where courts will stress the punitive purposes of sentencing. Finally, almost none of the Court of Appeal decisions applying Ipeelee dealt with creative alternatives to imprisonment involving victims and communities. This does not mean that such sentences are never used especially in cases where the Crown supports alternatives to imprisonment, but it does mean that Crowns and trial judges have not received positive signals from their Courts of Appeal to encourage such experimentation.Overall, the findings presented here are mixed but run to the negative, something that may be expected given the failure of Gladue to decrease Indigenous over-representation in prison. On the one hand, the increasing willingness among some Courts of Appeal to relate Gladue background factors to an offender’s moral blameworthiness follows from the Court’s clear signal in Ipeelee and is in my view a positive development.