Supreme Court



Courts are to take judicial notice of factors impacting aboriginal offenders in arriving at fit sentence

Sentencing for breach of long-term supervision orders. Two accused, L. and I., sentenced to three year sentences respectively for breaching long-term supervision orders (“LTSO”) by consuming intoxicants. Each accused Aboriginal offender, having significant personal histories of community alienation, family dysfunction and substance abuse. Accused designated long-term offenders due to histories of committing violent offences while intoxicated. Second accused breaching LTSO by consuming alcohol. Sentencing judge considering protection of public paramount concern in second accused’s case, holding breach was serious, separation of offender paramount objective in arriving at three year sentence for second accused. Court of appeal dismissing second accused’s appeal from sentence. Court of appeal holding sentencing judge erred by giving insufficient weight to second accused’s Aboriginal background, but sentence still fit due to gravity of breach, need to protect public. First accused breaching LTSO by consuming opiates. Sentencing judge finding separation of first accused paramount concern. Court of appeal varying first accused’s sentence to one year, finding sentencing judge failed to recognize failure to provide culturally relevant treatment for first accused undermined rehabilitation, resulting in first accused’s breach of LTSO. Further appeal by second accused allowed, sentence varied to one year. Crown appeal from court of appeal decision varying first accused’s sentence dismissed. Principles embodied by s. 718.2(e) of Criminal Code apply to sentencing Aboriginal offenders for breaches of LTSOs. It is incumbent on judges sentencing Aboriginal offenders to consider systemic, background factors which may have played role in bringing offender before courts. Sentencing courts are also to consider types of sentencing procedures, sanctions that may be appropriate because of offender’s Aboriginal heritage. Section 718.2(e) of Criminal Code signaled intention of Parliament that judges pay particular circumstances of Aboriginal offenders during sentencing process. Courts are to take judicial notice of particular background factors impacting Aboriginal offenders in arriving at fit sentence. Because purpose of LTSO is both protection of public and rehabilitation of offender, necessary to consider particular factors that may have caused Aboriginal offenders to breach LTSO in arriving at fit sentence. Such sentencing approach is consistent with fundamental principle of parity, as difference in sentences may reflect lower moral blameworthiness of Aboriginal offenders due to link between background, systemic factors and culpability. Sentencing judge, court of appeal erred in principle by giving attenuated consideration to second accused’s circumstance as Aboriginal offender, after finding public protection paramount objective. Sentence of one year properly reflected impact of second accused’s circumstances as Aboriginal offender on gravity of second accused’s breach of LTSO. Court of appeal’s decision to vary first accused’s sentence to one year adequately reflected principles, and objectives of sentencing.

R. v. Ipeelee; R. v. Ladue

(Mar. 23, 2012, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Abella and Rothstein JJ., File No. 33650; 34245) Decision at 85 W.C.B. (2d) 953 reversed and 97 W.C.B. (2d) 56 affirmed. Consolidated from two lower courts. 99 W.C.B (2d) 642 (103 pp.).

cover image


Subscribers get early and easy access to Law Times.

Law Times Poll

Law Times reports that there is no explicit rule that lawyers in Ontario must be competent in the use of technology. Do you think there should be explicit rules spelling out the expectations of lawyers’ in terms of tech use in their practice?