Master of Laws
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.
Summary for Lay Audience
There is perceived to be a crisis of over-representation among Indigenous people in Canada’s prison population. In the mid-1990s, Parliament added section 718.2(e) to the Criminal Code in an attempt to address this by encouraging alternatives to incarceration for Indigenous offenders. This section of the Criminal Code is commonly referred to as the Gladue provisions, after the Supreme Court of Canada decision that first interpreted its application. How the provisions are meant to apply to offenders sentenced for serious and violent offences has remained an open question for sentencing judges. This paper attempts to answer that question by comparing sentencing decisions for manslaughter between Indigenous and non-Indigenous offenders over a six-year period following the Supreme Court of Canada’s most recent decision related to the provisions in R v Ipeelee. This research examined superior court decisions to determine if Indigenous offenders were treated differently at sentencing and, if so, what differences in sentence outcome arose as a result. The central conclusion of this paper is that Indigenous offenders are most likely to see a beneficial outcome result from the application of the provisions where intoxication played a central role in the commission of the offence. This suggests that sentencing judges applied the provisions most frequently where the offences themselves aligned with prevailing views around Indigenous offending and the consumption of alcohol or other intoxicants.
Calvert, Conal, "The Circumstances of the Offence: The Post-Ipeelee Sentencing of Indigenous Offenders for Manslaughter in the Superior Courts" (2020). Electronic Thesis and Dissertation Repository. 7022.