The Supreme Court of Canada’s decision in March 2012 in R. v. Ipeelee confirmed that the Court remained committed to the principles it set out in the 1999 decision of R. v. Gladue with respect to addressing the causes of Aboriginal over-representation in prison through the sentencing process. The Court made it clear that the Gladue analysis must be carried out in every case regarding an Aboriginal offender regardless of severity and that it is not necessary for there to be a nexus between the circumstances of the particular offender and the offence itself. The Court also stated that: The principles of proportionality in sentencing accommodates taking into account the particular circumstances of Aboriginal offenders; the causes of Aboriginal over-representation are not simply demographic but arise from the impact of colonial practices and systemic discrimination in the justice system; and that sentencing judges have a particular role to play as front-line workers in the justice system to address Aboriginal over-representation. at the same time as Ipeelee was decided, Parliament passed Bill C-10, legislation that has meant that unreviewable decisions by Crown attorneys as to what charges to prosecute in a specific case may well effectively tie the hands of the sentencing judges and render the m unable to give true consideration to the direction from the Supreme Court. This development will likely lead to challenges to mandatory minimums based not on section 7 of the Charter, as most prior cases have been, but rather on section 15 and the disproportionate impact on Aboriginal offenders that these unreviewable decisions will have.
"Looking Backward, Looking Forward: The Supreme Court of Canada’s Decision in R. v. Ipeelee."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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