The Circumstances of the Offence: The Post-Ipeelee Sentencing of Indigenous Offenders for Manslaughter in the Superior Courts
Abstract
Precisely how section 718.2(e) of the Criminal Code – the so-called Gladue provisions – is meant to apply to the sentencing of serious and violent crimes has remained an open question for two decades. This paper utilizes a comparative analysis of the sentencing of Indigenous and non-Indigenous offenders for manslaughter in the superior courts of Ontario, western Canada and the territories in an attempt to answer that question. It compares the outcomes for Indigenous and non-Indigenous offenders sentenced for manslaughter in the six years following the Supreme Court of Canada’s decision in Ipeelee to determine whether there is a different sentencing regime in operation for Indigenous offenders with respect to this offence and, if so, what outcomes that regime produced. The central conclusion of this paper is that a beneficial outcome attributable to the operation of the Gladue provisions occurred primarily in manslaughter offences where the intoxication of the offender played a central role. This suggests that sentencing judges found their way to applying the Gladue provisions most frequently where the offences themselves fit a pattern aligning with prevailing views around Indigenous offending and the consumption of alcohol or other intoxicants.