Ipeelee and the Pursuit of Proportionality in a World of Mandatory Minimum Sentences

Abstract

The law of sentencing in Canada is being pulled in opposing directions: Parliament regularly legislates new mandatory sentences that limit judicial discretion while the Supreme Court strongly affirms the “highly individualized” nature of sentencing. Mandatory sentences have proliferated in recent years, contrary to overwhelming social science evidence that they do not deliver on their promises of deterrence and crime control, and largely unimpeded by the Charter. However, the recent decision in R v Ipeelee arguably puts the principles relevant to the sentencing of Aboriginal people on a collision course with the substantial limits on judicial discretion that are central to mandatory minimum sentences. In this brief article, I first outline some of the key holdings in Ipeelee, arguing for their robust application at a time when judicial discretion in sentencing is being limited. I then move on to discuss the extent to which mandatory sentences have a disproportionate impact on Aboriginal people in a way that should attract Charter scrutiny.

Keywords: Sentencing, Indigenous Peoples