Ipeelee and the Duty to Resist

UBC Law Review vol. 51(2) 548-611

64 Pages Posted: 31 Aug 2018  

Marie-Eve Sylvestre

University of Ottawa - Civil Law Section

Marie-Andrée Denis-Boileau

University of Ottawa - Faculty of Law

Date Written: August 24, 2018

Abstract

In this article, the authors take a critical look at s. 718.2(e) of the Criminal Code and how courts have interpreted it after Ipeelee from a legal pluralism standpoint. They suggest that the interpretation given by the Court opens the way to a form of resistance from the judiciary against the problem of Indigenous over-representation in the criminal justice system and the hegemonic approach of the Canadian state with respect to Indigenous legal orders. However, based on a thorough analysis of 635 decisions rendered after Ipeelee by trial and appellate courts between 2012 and 2015, the authors conclude that this innovative approach was, in turn, met with significant resistance by judges. The authors finally address the main practical and epistemological hurdles that can explain the limited impact of that approach in sentencing and suggest that this resistance could be overcome by promoting judicial innovation as well as the revitalization of Indigenous legal systems.

Suggested Citation

Sylvestre, Marie-Eve and Denis-Boileau, Marie-Andrée, Ipeelee and the Duty to Resist (August 24, 2018). UBC Law Review vol. 51(2) 548-611. Available at SSRN: https://ssrn.com/abstract=3237898

Marie-Eve Sylvestre (Contact Author)

University of Ottawa - Civil Law Section ( email )

57 Louis Pasteur Dr
Ottawa
Canada

Marie-Andrée Denis-Boileau

University of Ottawa - Faculty of Law ( email )

57 Louis Pasteur St
Ottawa, Ontario K1N6N5
Canada

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