03/23/2012 10:05 EDT | Updated 05/23/2012 05:12 EDT

Supreme Court says native background must be a factor in sentences

OTTAWA - The Supreme Court of Canada has ruled that an aboriginal's troubled background must take precedence when sentencing violent offenders who have breached long-term supervision orders.

In a landmark 6-1 decision, the justices ruled on a pair of cases involving two violent and deeply scarred men who had been placed on long-term supervision and were sentenced after violating the terms of those orders.

Both men were addicts and had lengthy, violent criminal histories that included sexual assaults.

The long-anticipated ruling marked the first time the high court has ruled on how the Gladue principles — rules set by Parliament on aboriginal sentencing — are to be applied in cases involving long-term, violent offenders.

The justices said the issue of aboriginal background must be considered even in cases where the accused have been placed under long-term supervision by the courts.

"To be clear, 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," Justice Louis LeBel wrote for the majority.

"Failing to take these circumstances into account would violate the fundamental principle of sentencing."

Those Criminal Code provisions are not a "race-based discount on sentencing," LeBel wrote.

They are 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."

Friday's ruling pointedly remarked that the courts have not done enough to take into account the new aboriginal sentencing requirements that flow from the Supreme Court's 1999 ruling in the Gladue case.

"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."

In one of the cases, a man who breached an order to abstain from alcohol and was sentenced to three years for the breach had his sentence cut to one year.

Manasie Ipeelee, a 39-year-old Inuk man originally from Iqaluit, is the son of an alcoholic mother who froze to death when he was five. By age 11, Ipeelee had developed his own alcohol addiction and would find himself before the courts for the first time a year later.

Ipeelee would go on to rack up a long criminal record as an adult that contained 24 convictions, including sexual assault.

In August 1999, Ipeelee committed the offence that would lead to his designation as a long-term offender. While drunk, he sexually assaulted a 50-year-old woman, who was sleeping in an abandoned van used by homeless people.

"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," Friday's ruling stated.

The courts deemed Ipeelee a substantial risk to reoffend. He was sentenced to six years in prison for the attack, to be followed by a 10-year supervision order.

Ipeelee breached that order when he was caught cycling drunk in Kingston, Ont., in August 2008. He pleaded guilty to the breach and received a three-year sentence, which was upheld by the Ontario Court of Appeal. It was overturned Friday by the Supreme Court and reduced to one year.

In the other case, the justices rejected a Crown appeal which sought a stiffer sentence for an offender who was caught using cocaine and morphine at a halfway house in British Columbia.

Yukon-born Frank Ladue, 49, was uprooted from his family at age five and sent to a residential school, "where he alleges he suffered serious physical, sexual, emotional and spiritual abuse," said Friday's ruling.

He would go to develop addictions to alcohol as well as hard drugs — heroin, cocaine and morphine — while racking up more than three dozen convictions, including robbery and sexual assault.

In October 2002, Ladue entered a house and attacked a 22-year-old woman, who was passed out drunk.

He was convicted of sexual assault and breaking and entering and sentenced to three years in prison. He was also placed on a seven-year supervision order.

In 2009, he breached that order, when he tested positive for drugs. He was sentenced to three years in prison, but the B.C. Court of Appeal reduced the sentence to one year — a decision the Supreme Court upheld on Friday.

The Supreme Court's lone dissenter in Friday's ruling, Justice Marshall Rothstein, argued that the protection of the public should take precedence over the aboriginal sentencing considerations.

The courts must consider breaches of long-term supervision orders as "very serious" in cases involving alcohol or substance abuse, he wrote.

"Such a breach demonstrates that management of the offender in the community has been less than effective and the substantial risk of a violent reoffence is heightened," said Rothstein.

"Therefore, in sentencing for the breach of a condition ... 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."

Rothstein said he would have upheld the three-year sentence that Ipeelee was handed. He agreed, however, that the one-year term given to Ladue was proper.

Shawn Atleo, national chief of the Assembly of First Nations, said the ruling is important because with the recent passage of the Conservative government's new crime bill, more First Nations will find themselves facing jail time because of the law's mandatory custody provisions.

He said he's written to Justice Minister Rob Nicholson seeking sentencing alternatives to mandatory incarceration.

"We remain hopeful that today's Supreme Court decision will be fully applied to First Nation offenders in all criminal matters and will advocate strongly that the decision by Canada's highest court will be respected," Atleo said.

"First Nations are the youngest and fastest growing population in Canada, the future of this country, yet right now they are more likely to go to jail than graduate from high school. This situation requires a national commitment to reconciliation including a more fair and balanced approach to Aboriginal people in the justice system."