Chapter 11 Moral Culpability and Addiction Sentencing Decisions Two Decades After R. v. Gladue

Part I: Sentencing Law Reforms in Canada: From Bill C-41 to R. v. Gladue

Canadian sentencing laws have been the subject of serious legal and political debate since the mid 1960s. Starting with the Ouimet Report (1969), the work of the now disbanded Law Reform Commission of Canada (Hartt 1976), the Canadian Sentencing Commission (Bisson 1987), and culminating with the Daubney Report (Daubney 1988), various recommendations have been made to address the overuse of incarceration and unwarranted disparity in sentencing. At the same time, there is also the demand for “truth in sentencing” by victim’s rights groups seeking more accountability through harsher punishment. These seemingly irreconcilable aims of constraining the use of incarceration but not the independence of the judiciary to punish, has culminated in the drafting of expansive sentencing law reforms. In 1995, Bill C-41 set out for the first time in Canadian law the overarching purpose of sentencing, sentencing objectives, and sentencing principles. The purpose of sentencing someone convicted of a crime is to foster “respect for law and the maintenance of a just, peaceful, and safe society by imposing just sanctions” (An Act to Amend the Criminal Code [Sentencing] 1995, SC c. 22, s. 6, amending s. 718 of the Criminal Code).

According to the Criminal Code (ss. 718.1 and 718.2), the fundamental principle to guide the crafting of a sentence is proportionality: the sentence must be proportional to the gravity of the offence and the moral responsibility of the offender. Other principles that are to inform a proportional sentence include:

• • consideration of aggravating and mitigating factors
• • parity across similar offenders convicted of similar offences under similar circumstances
• • in cases of consecutive sentences for multiple offences, total sanction not excessive
• • least restrictive sanctions imposed whenever appropriate
• • restraint in the use of imprisonment, particularly with regard to Indigenous offenders

Under the 1995 amendments to the Criminal Code, judges retained their autonomy and discretionary authority to craft a sentence that considers the objectives such as denunciation, deterrence, rehabilitation, incapacitation, reparation of harm, and recognition of harm done to the victim and community.

Bill C-41 also included a new sentencing option: conditional sentences. Conditional sentences are a non-carceral sanction that could be handed down in cases where the criminalized person could be sentenced to up to two years in custody. A conditional sentence allows for them to serve their prison term in the community under various conditions. The intent of conditional sentences is to reduce the over-reliance on incarceration as a sentencing option, to encourage a restorative justice approach to sentencing by enabling criminalized people to remain in their communities, and to address the harms caused by their offence (Roberts and Roach 2003). Since 1996, conditional sentences have been criticized on several fronts. First, such sanctions are viewed as a form of “cheap justice,” especially in cases of intimate partner violence wherein men convicted of sexual or domestic assault can be supervised in their communities with little concern for the victims (Cameron 2006; Coker 2006; Balfour and DuMont 2012). Second, conditional sentences extend rather than constrain the reach of the carceral state. Roach (2000) argues that criminalized people who would have been sentenced to a term of probation with no risk of incarceration are rendered more vulnerable to being incarcerated under this so-called progressive sentencing provision. Finally, other legal scholars have referred to conditional sentences as a penal paradox, given that a person who is judged as deserving of incarceration is nonetheless returned to the community to serve their sentence (Gelsthorpe and Morris 2002).

Politically, conditional sentences have proven to be controversial for austere law and order governments who have clawed back community resources, especially for the “criminalized other” (Garland 2012), leaving few supports available for effective supervision and reintegration. Ideologically, conditional sentences are often used as evidence of that state being “soft on crime.” In 2007, the Conservative federal government tabled Bill-C9 to amend section 742.1 of the Criminal Code to severely limit the types of offences wherein a conditional sentence could be handed down (An Act to Amend the Criminal Code [Conditional Sentence of Imprisonment], SC 2007, c. 12). These amendments have had far-reaching effects on sentencing outcomes, in seeming contravention of the potential of section 718.2(e) to restrain the use of incarceration for Indigenous people. Judges are empowered on one hand to address the unique circumstances of Indigenous peoples’ lives through non-carceral sanctions, yet on the other hand are constrained from doing so through conditional sentencing.

Despite the progressive potential of Bill C-41, with regards to section 718.2(e) to consider the special circumstances that are unique to Indigenous peoples, and the opportunity for conditional sentences served in the community rather than imprisonment, there has been a steady increase in the overrepresentation of Indigenous women in provincial and federal prisons. As reported by Department of Justice:

In 2017/2018, Indigenous adult men accounted for 28% of the men admitted to custody in the provinces and territories. Indigenous women made up a greater proportion of custody admissions than their male counterparts, accounting for 42% of the women admitted to custody. Compared to 2007/2008, the number of admissions of Indigenous men to provincial/territorial custody increased 28% while the number of admissions of Indigenous women increased 66% in the provinces and territories. (Malakieh 2019, 4)

An often undertheorized aspect of Indigenous women’s overincarceration is how their imprisonment intersects with the staggering rates of gender-based violence and femicide perpetrated against them. This victimization-criminalization-punishment continuum builds on earlier pathways model espoused by some feminists to explain individual women’s criminal behaviour because of the effects of trauma (see Comack 1996; 2018; Bloom 2003). For example, the pathways model is rooted in an understanding of women’s own violence or dependency on alcohol or illicit drugs as being linked to the impacts of their earlier experiences of sexual and physical abuse. The effects of these traumas result in ongoing psychological distress such as post-traumatic stress disorder, depression, self-harm, and suicide ideation, placing them at high risk for addiction to drugs, the use of violence to survive or resist ongoing victimization, and involvement in exploitative relationships. Thus, women with high rates of sexual or physical victimization are more likely to be criminalized (Covington 2007; Covington and Bloom 2007).

In contrast, I suggest the continuum model is more useful because it exposes ways in which criminal justice processes link Indigenous women’s victimization to how they are policed, how their moral culpability is established, and ultimately how their level of risk and degree of securitization are assessed once imprisoned (Balfour 2013). Indigenous women experience three times the rates of violent victimization than non-Indigenous women. According to Statistics Canada (Mahony, Jacob and Hobson 2017), based on the 2014 General Social Survey results, the rate of violent victimization of Indigenous women is 160 incidents per 1,000 whereas for non-Indigenous women the rate is 75 incidents per 1,000. In turn, Indigenous women are more likely to be charged with, and imprisoned for, violent offences than non-Aboriginal women. In 2017, Statistics Canada reported that the proportion of Aboriginal females accused of homicide (4.33 per 100,000 population) was higher than for non-Aboriginal females (0.14 per 100,000 population).

In earlier studies of sentencing decisions in cases of Indigenous women criminalized for violent offences, I argued that it is the gendered conditions of endangerment in their own communities that foreground violence experienced and perpetrated by women (Balfour 2008, 2013). Conditions of endangerment include overcrowded and unsafe housing, high unemployment rates, the effects of residential schooling on family systems, and the displacement of Indigenous women from their traditional leadership roles. These conditions are compounded by colonial systems of child welfare as well as police indifference and brutality (Amnesty International 2006; Rhoad 2013; Oppal 2012). In the words of women who addressed the National Inquiry into Missing and Murdered Indigenous Women and Girls (2019, 510), “violence is as constant presence . . . threats of sexual violence made by family and friends reveal how Indigenous women live with those who commit violence. And women and girls devise ways of creating safety as violence is an expected part of their lives.” An important question that drives this scholarship is how then does the law attend to the “constant presence” of violence in the lives of criminalized Indigenous women?

R. v. Gladue

Despite the legislated provisions of section 718 that set out numerous sentencing principles and objectives, the meaning and implications of section 718.2(e) specifically for sentencing of Indigenous people has been the most contentious. The constitutional decision with regards to sentencing under the provision of section 718.2(e) was the case of R. v. Gladue (1999). Jamie Lynn Gladue is a young Indigenous woman who, at that time, was convicted of manslaughter in the death of her common law husband after years of documented domestic violence. In that case, she was initially sentenced to three years in prison, but on appeal her defence counsel argued the lower court had not applied 718.2(e) or section 742.1 in her sentencing and failed to consider her status as an Indigenous person simply because she did not live on a reserve. On appeal, the Supreme Court of Canada upheld the appeal but set aside the non-carceral sentence sought by the defence and imposed instead a three-year sentence due to the seriousness of the offence, and the need for denunciation and deterrence. Importantly, for the purposes of this chapter, the Supreme Court established that judges and lawyers must consider the “the background factors which figure prominently in the causation of crime by aboriginal offenders”:

Years of dislocation and economic development have translated for many aboriginal peoples, into low incomes, unemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation. These and other factors contribute to a higher incidence of crime and incarceration. (R. v. Gladue, at para. 67)

It is important to note, however, that the lower court decisions and the Supreme Court of Canada together did not recognize gender-based violence as a systemic or background factor that may contribute to Indigenous women’s criminalization.

In my earlier research, I explored fifteen years of sentencing decisions following Gladue to discern how sentencing decisions in cases of Indigenous women convicted of violent offences made sense of gender-based violence under section 718.2(e) (Balfour 2013). Case law reviewed at that time indicated that sentencing judges appear to minimize the continuum, resulting in the imprisonment of Indigenous women whose lives are dramatically shaped by the threat of and lived experiences of sexual and physical violence. Gender-based violence appears to be unrecognizable under section 718.2(e) as special circumstances of Indigenous women’s lives to be considered at sentencing. How then are the legal narratives in sentencing decisions constructed in cases of criminalized Indigenous women like Jamie Lynn? Despite the evidence of gender-based violence in her life as the context for her own use of violence, the focus of the sentencing court’s decision appeared to focus on the interpretation of section 718.2(e) against other sentencing objectives such as deterrence and denunciation, especially in serious personal injury offences. As stated here by the Supreme Court justices in Gladue:

In describing the effect of s. 718.2(e) in this way, we do not mean to suggest that as a general practice aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice, and less weight to goals such as deterrence, denunciation, and separation. It is unreasonable to assume that aboriginal peoples themselves do not believe in the importance of these latter goals, and even if they do not, that such goals must not predominate in appropriate cases. Clearly there are some serious offences and some offenders for which and for whom separation, deterrence, and denunciation are fundamentally relevant.

Yet, even where an offence is considered serious, the length of the term of imprisonment must be considered. In some circumstances the length of the sentence of an aboriginal offender may be less and in others the same as that of any other offender. Generally, the more violent and more serious the offence the more likely that it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing. (R. v. Gladue, at paras. 78–79)

Since 1999, Gladue has been cited in over two thousand common and civil law cases before the Supreme Court of Canada and various provincial courts of appeal. In addition to its significant doctrinal impact, this decision has influenced the creation of specialized legal advocacy services. For example, Aboriginal Legal Services, in Toronto, provides specialized legal advocacy including specially trained Gladue Report writers who can support Indigenous men and women who have admitted guilt and are facing at least 90 days of incarceration. Today there are over twenty satellite offices of the Aboriginal Legal Services throughout Ontario that are staffed with Gladue Report writers. Other specialized courts have been developed in other provinces and territories following the Gladue decision to implement the objectives set down in section 718.2(e). There are seven alternative courts: four in BC, one in Alberta and Saskatchewan, and a fully integrated Criminal and Indigenous court in Nunavut. Each of these specialized courts utilize Gladue Reports as sentencing tools intended to bring “holistic culturally situated assessments” (Hannah-Moffat and Maurutto 2010, 274) into the sentencing decision-making process. For example, personal experiences of alcohol dependency and interpersonal violence are contextualized in the devastating intergenerational effects of abuse experienced in residential schools. After a lengthy interview process and consultation with the Indigenous person’s community to determine how best to meet her needs as an Indigenous person outside of the carceral context, the Gladue Report writer proposes sentencing options. These reports are intended to augment the pre-sentence reports used by the court to inform their understanding of the accused’s personal circumstances. Legal scholars however have pointed to the problematic implementation of the Gladue Report process. Milward and Parkes (2011) for example, point out how pre-sentence reports remain the standard format through which judges are apprised of the Indigenous person’s lived experiences. Gladue Reports are often appended to pre-sentence reports, which are structured in a manner that prevents a robust analysis of complex socio-cultural factors.

Despite this precedent-setting decision handed down by the Supreme Court in Gladue, and the evolution of Gladue Reports and specialized courts, sentencing judges can rely on standardized pre-sentence reports generated by probation officers often using the LSI-R (Level of Security Inventory-Revised). The LSI-R is an actuarial assessment tool that calculates an individual’s risk to reoffend, their criminogenic and dynamic needs, and their responsivity to learning. This “risk need responsivity” model predicts the likelihood of recidivism as well as treatment and supervision need that should be considered in the determination of an appropriate sentence. The shift toward actuarial sentencing is cast as “smarter sentencing” that is evidence-based to prevent disparate (excessive or lenient) outcomes (Hannah-Moffat 2013). Critics of these actuarial or statistical sentencing methods assert that the way risk is constituted on the basis of aggregate data can lead to an individual’s inflated risk score and thus more punitive sentencing (Hannah-Moffat and Maurutto 2010). For example, most criminalized people are marginalized by poverty, lack of education, and familial breakdown and violence; these structural conditions are restated through an actuarial logic as predictors of individual risk to reoffend. In this way LSI-R risk assessments sidestep important legal questions such as: should LSI-R generated pre-sentenced reports be entered as evidence, and as such should they be subject to legal scrutiny and cross-examination; is the LSI-R as a risk/needs assessment tool valid in cases of racialized men and women, given its reliance on aggregate population-based data? As explained by Hannah-Moffat and Maurutto (2010, 275):

[There is] little guidance on how probation officers ought to reconcile their assessments of the offender with the policy’s emphasis on criminogenic risk/need. The result is Aboriginal offenders continue to be characterized as high risk and high need. PSR [pre-sentence report] policy is thus limited. Its effect is to situate race within a broader actuarial risk framework with no clear direction on how to reconcile the embedded contradictions. Race is identified as a “special consideration” for Aboriginal offenders, but simply adding race as an addendum does not sufficiently address the situational context of the Aboriginal person, nor the theoretical and methodological difficulties associated with the use of conventional risk/need assessment instruments on non-white and Aboriginal populations.

These authors argue that Gladue Reports tend to obfuscate race when merged with LSI-R pre-sentence reports in the final risk/need assessment and sentencing recommendations. As a tool devised to predict the likelihood of recidivism based on offender and offence characteristics, the LSI-R is grounded in a gender-blind model of risk–need responsivity. According to advocates of the LSI-R scale, men and women share similar risk and criminogenic need factors that allow for prediction of recidivism as well as the type of interventions required. Men and women only differ based on how they acquire risk factors (such as peer groups or family members) and their responsivity to treatment.

For Indigenous women, the LSI-R obscures the effects of both gender and race, resulting higher risk–need scores, and lower responsivity to treatment. As documented by various government and Indigenous led inquiries, gender-based violence is intergenerational and rooted in intersecting colonial forces of systemic racism (Chartrand and Whitecloud 1999; National Inquiry into Missing and Murdered Indigenous Women and Girls 2019; Oppal 2012). Indigenous women are more vulnerable to predatorial harm with few means for maintaining safety and well-being. In the context of violence, precarity, and endangerment, Indigenous women are at higher risk of criminalization for the use of defensive violence, substance abuse, robbery, or theft. Thus, implications of the LSI-R scoring of Indigenous women’s risk–need level as a part of the sentencing process are dire. The pre-sentence report and LSI-R scoring is typically accepted by the court as a matter of fact, rather than as evidence for closer scrutiny in terms of its validity. In 2009, Hannah-Moffat argued that the use of LSI-R in pre-sentence reports is legally problematic as it relies on grounds that in human rights laws are protected from discriminatory use—such as age, mental or physical disability, gender, race, in its calculus of risk and need, and therefore conditions and duration of detention. The alchemy of risk factors and Gladue factors that comprise pre-sentence reports in the sentencing of Indigenous men and women, is considered more deeply in the next section wherein I explore two cases that resulted in very different sentencing outcomes.

Part II: R. v. Ipeelee and R. v. Moostoos

Sentencing decisions are an important site of empirical study for critical legal scholars seeking to understand how the state reproduces carceral strategies, especially those that imprison the most marginalized and disadvantaged. Critical legal inquiry also exposes the limits of law as a strategy of transformational justice. I conceptualize sentencing decisions as a nexus of legal rationalism (sentencing objectives and principles) and the discretionary authority of justice professionals such as Crown attorneys, defence counsel, and judges. My interest is in the legal narrative contained within sentencing decisions; the stories that law tells us about crime and punishment, and the criminalized. In this chapter, I juxtapose two recent sentencing decisions: R. v. Ipeelee (2012) and R. v. Moostoos (2017) to discern the gendered framing of moral blameworthiness. The legal arguments in both cases turn on the sentencing principles of proportionality: a just sanction is that which balances the gravity of the offence with the moral responsibility of the offender. It is the determination of moral responsibility or blameworthiness of Indigenous women that interests me here: Does the racial and gendered disadvantage reframe moral blameworthiness through the application of section 718.2e?

Part III: Moral Culpability and Addiction

The outcome of these cases rests on the disappearance of the gendered conditions of endangerment and the hypervisibility of “self-induced intoxication” and addiction in the formulation of a just and proportional sanction. In Ipeelee, the sentencing principle of rehabilitation is recognized as fundamental to a just sanction to allow the offender to receive treatment for his chronic alcoholism, which is identified as a pathway to violent behaviour. In Moostoos, the matter of addiction plays heavily in the determination of Candace Moostoos’s moral blameworthiness and the need for incapacitation, rather than rehabilitation despite her life history of “tragic familiarity.” Maniece Ipeelee’s moral responsibility is mitigated somewhat by his lived experience of disadvantage, “a life story removed far from the experience of most Canadians.” Indeed, the Supreme Court Justices in Ipeelee state: “the reality is that their constrained circumstances may diminish their moral culpability” (477). How do we understand the gendered reframing of addiction in the lives of an Indigenous woman in Moostoos other than as evidence of her moral blameworthiness? In Moostoos, Barrington-Foote, J. dismisses the relevance of Gladue and sidesteps the statutory requirement to consider all alternatives to incarceration and the unique circumstances of Indigenous offenders.

Sentencing decisions signal the completion of the criminalization process, but judicial reasons for sentence and the use of LSI-R scores become a part of the carceral treatment of the prisoner and inform her risk/need profile once imprisoned. Indigenous women are significantly overrepresented at maximum security (42%) and segregation placements (50%) but underrepresented at minimum security (26%) (Webster and Doob 2004). In 2020, the Globe and Mail released a series of articles stemming from an exhaustive investigation of the discriminatory outcomes of risk assessments used by prison authorities to determine the correctional plans and security classifications. Data showed how Indigenous (and BIPOC) prisoners are systemically classified/profiled as high risk based on classification regimes that link social disadvantage and victimization with a need for intensive supervision and maximum security (Cardoso 2020). Correctional Service Canada research shows that when comparing federal custodial classifications between Indigenous and non-Indigenous women, Indigenous women are more likely to have their initial classification changed from medium to maximum security. Security classifications are comprised of custody rating scales and offender security level assessments. Between 2010 and 2022, data indicate that custody rating scales are overridden by a secondary measure of offender security level assessments performed by correctional authorities once admitted to custody (Motiuk and Keown 2021). The annual report of the Office of the Correctional Investigator (Zinger 2022) reports 64% of women classified as maximum security are Indigenous, and over half are serving sentences of less than four years. Thus, Indigenous women in maximum security are not confined there due to the seriousness of their admitting offence, but rather due to their offender security level assessment determined by correctional professionals. In that same report, the Office of the Correctional Investigator indicates that 82% of Indigenous women prisoners are assessed as high risk and high need, and 69% are under the age of 30 (Zinger 2022). Correctional Service Canada now applies an Indigenous Social History tool to classify and assess the risk levels of Indigenous offenders. The stated purpose of the tool is to “examine the direct and indirect social and historical factors that have impacted the individual and contributed to their involvement in the criminal justice system. The assessment is intended to ensure the unique circumstances of Indigenous prisoners are deliberated and that culturally appropriate/restorative options are considered and provided” (Zinger 2022). A review of those assessments, however, reveals the persistence of the individualized narratives of criminogenic factors such as substance abuse, violence, family dysfunction, exposure to criminal and violent behaviour, and negative peers (Zinger 2022). This retrenchment of individualized criminogenic risk through the trope of Indigenized correctional practices, removes the colonial violence that underpins criminalization and incarceration.

In a similar fashion, sentencing of Indigenous women such as Candace Moostoos continues to retrench individualized and decontextualized assertions of moral blameworthiness that obfuscate gendered colonial harms. Decades of research has documented the profound impacts of colonial violence and intergenerational trauma: staggering levels of gender-based and sexualized violence experienced by criminalized Indigenous women, destitution, homelessness, feminicide, and addiction (see Comack 2018; Dell and Kilty 2013; Smith and LaDuke 2015; Statistics Canada 2006; 2011; 2017). Gladue Reports are intended to capture the impacts of these experiences on the lives of criminalized Indigenous people to provide context to judges in their determination of an appropriate sentence. As shown in Moostoos, Gladue Reports can be sidestepped and thereby eliding the colonial harms that frame the conditions of Candace Moostoos’s life.

Razack’s analysis of coroner’s inquests into the deaths of Indigenous people either in hospitals or police holding cells provides a frame for us to better recognize how the state disposes of Indigenous bodies in a manner that “cannot be connected to the violence of ongoing colonialism” (Razack 2011, 352). Drawing on Mbembe’s (2008) theorizing of necropolitics, Razack sees Indigenous people who are addicted or alcoholic as existing in a death world where they are severed from care and humanity. Moreover, the state’s response to those in need of care are purposefully disconnected from colonial violence. The overincarceration of Indigenous peoples—especially women—is a disposal of unwanted bodies. Razack exposes how medical systems and public policing reproduces the deaths of Indigenous peoples through neglect and failure to care or protect. Through a critical examination of coroner’s inquiries into deaths of Indigenous people brought to emergency rooms or confined in holding cells, Razack shows how the “drunken Indian’s” diseased body (fatty liver, tremors, slurred speech, incontinence) is discursively untethered from the ravages of colonization, and instead police and doctors and nurses work with impunity as they deny treatment, drag bodies in and out of cells, or leave them at the city limits in winter. This discursive or text-based “untethering” of Indigenous bodies from socio-political and historical violence through bureaucratized and professional state agencies is what interests me here. Through the narratives of legal experts, such as lawyers and judges, the sentencing of Indigenous women under the terms of section 718.2(e) appears to untether the lived experience of victimization from the lived experience of addiction. Alcoholism, drug dependency, and violence appear naturalized, and the state’s neglect and failure to exercise care or take precautions is obfuscated by a complicated narrative of addiction as a lifestyle choice that demonstrates a measure of inferiority. Addiction, not gender-based state and interpersonal violence, is seen as the root cause of Indigenous women’s “criminal choices.”

The criminalization and imprisonment of Indigenous bodies through puritan or medicalized discourses of addiction is evident in throughout colonial history. Early settlers used alcohol in their treaty negotiations with Indigenous leaders, and as motivation for an eventual strategy of confinement onto “dry reserves” for their own good under the terms of the Indian Act (Thatcher 2004). Consumption of alcohol criminalized and regulated as public drunkenness, has been grounds for policing, detention, and child apprehension. Today, the use of alcohol or drugs is framed as a metric of criminogenic risk, warranting longer terms of incarceration. Kaiser-Derrick’s (2019, 117) review of 175 sentencing decisions in cases involving Indigenous women reported between 1999 and 2015 exposes a “language of predictability” within legal narratives, specifically with regards to how “tragedy and trauma have led to, not surprisingly substance abuse.” This understanding of addiction and violence as both inevitable and criminogenic are neoliberal narratives that individualize and decontextualize gendered conditions of endangerment through actuarial logics of risk assessment. As I discussed above, Candace Moostoos’s fear of sexual assault by a man who had previously raped her and abused other family members was lost in a legal narrative of excessive violence, which the judge felt justified a sentence promoting denunciation and deterrence. Her own use of violence when grabbed painfully by the crotch and dragged across the floor was denounced as evidence of her (im)moral culpability. Barrington-Foote, J. did not request a Gladue Report. Rather, he relied on previous decisions that established guidelines for sentencing in cases of “stabbing deaths over drugs” (para. 31). None of the case law cited in his reasons for sentence involved Indigenous women. Instead, Moostoos’s lived experiences are quantified through a calculus of criminogenic risk:

Ms. Moostoos was assessed using the Saskatchewan Primary Risk Assessment, which is designed to predict the risk of general criminal recidivism if the offender’s risk factors are not addressed. Risk factors include criminal history, residence stability, education and employment, financial situation, family and marital relationships, peers, substance abuse and self-management awareness. Ms. Moostoos was assessed as being at a high risk to reoffend, with only 4% of Saskatchewan offenders having more risk factors. (para. 21)

The actuarial logic of risk assessment is used in this case to circumvent the statutory requirements set out in section 718 and the decisions in Gladue and Ipeelee, which require judges to seek the least restrictive sanction wherever possible, and to consider the circumstances of Indigenous peoples, regardless of the seriousness of the offence. In efforts to explain the reified practice of locking up Indigenous bodies, I am drawn to Razack’s analysis of how the state disposes of those whose “annihilation is at the core of the colonial project” (2016, 307). Razack (2016) theorizes the death of Cindy Gladue who was brutally assaulted by a man and left to bleed to death from puncture wounds to her vaginal wall, as evidence of Indigenous women’s disposability at the hands of white men, as well as the eroticization or affect of the mutilated Indigenous woman’s body. Razack writes of the scopic regime used at trial to visualize the disembodied specimen of Cindy Gladue’s severed vaginal wall as a form of terrorism used against all Indigenous women. I extend her logic to argue that incarceration is a form of corporeal disposability of Indigenous women. In the earlier case of Jamie Lynn Gladue, relapses into addiction and the inability to control her drinking were understood as context for her violence against an abusive common law partner. Similarly, Candace Moostoos’s violence against a sexually abusive family friend is cast as blameworthy. The reframing of Indigenous women’s resistive violence as gratuitous violence fuelled by alcohol and drug use seems to be a way that imprisonment is used to dispose of Indigenous women through their containment. This scholarship presents the ways the subversive stories of the “the unrelenting victimization histories of criminalized Indigenous women” (Kaiser-Derrick 2019, 88) and the ways these narratives of white brutality threaten the legitimacy of racial governance as a pressing matter (Murdocca 2009). Risk logics of addiction and trauma constitute a legal narrative of Indigenous women’s predictive violence, justifying the further use of imprisonment.

Conclusion

In the two decades since the Supreme Court decision of R. v. Gladue, where the court ruled on the responsibility of sentencing court judges to take into consideration the special circumstances of Indigenous peoples’ lives and to seek out non-carceral sentences whenever possible, rates of incarceration of Indigenous women have steadily increased and now outpace the rate of men’s incarceration. In this chapter, I explored two recent key decisions since Gladue to discern the gendered differences in sentencing methodologies. In Ipeelee, an Indigenous man with a lengthy criminal record for violence and history of chronic alcoholism was provided with access to treatment in the community for his addiction. He was not returned to prison for breaching a condition of his long-term supervision order. This decision was welcomed by defence lawyers for its affirmation of proportionality in sentencing and the relevance of Gladue, regardless of offence. Five years later, in Moostoos, the relevance of Gladue and Ipeelee were both dismissed in favour of deterrence and denunciation given the seriousness of the offence. I argue here that we need to consider how risk logics of actuarial assessments embedded in pre-sentence reports enable a necropolitics of disposability for Indigenous women. The reality of overincarceration and vulnerability to personal violence that is too often lethal that faces Indigenous women exposes a naturalized victimization to incarceration continuum wherein the state is immune from sanction.

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Cases and Legislation Cited

1. An Act to Amend the Criminal Code (Conditional Sentence of Imprisonment), RSC 1995, c. C-46
2. An Act to Amend the Criminal Code (Conditional Sentence of Imprisonment), SC 2007, c. 12
3. An Act to Amend the Criminal Code (Criminal Procedure, Language of the Accused, Sentencing and Other Amendments), SC 2008, c. 18
4. Bill C-41, An Act to Amend the Criminal Code (Sentencing), SC 1995, c. 22
5. R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 SCR 688
6. R. v. Ipeelee, 2012 SCC 13 (CanLII), [2012] 1 SCR 433
7. R. v. LaBerge, 1977 CanLII 186 (SCC), [1978] 1 SCR 1007
8. R. v. Moostoos, 2017 SKQB 12 (CanLII)