Supreme Court Sets New Sentencing Framework for Cases Involving Indigenous Offenders and Victims

The Supreme Court of Canada has set out a new approach to sentencing in cases involving Indigenous offenders and Indigenous victims, saying judges must apply the relevant protections and obligations together rather than treating them as competing rules.

The decision in R. v. Cope, released Friday, October 9, arose from a Nova Scotia case in which a Mi’kmaw man, Harry Arthur Cope, pleaded guilty to aggravated assault against his intimate partner, a Mi’kmaw woman from Sipekne’katik First Nation. The court divided five to four.

What happened in the case
Cope, who has severe mental health challenges, punched his partner and threw her to the ground on a Halifax sidewalk in 2021, causing serious injuries, according to reporting by Canadian Lawyer and The Deep Dive. The sentencing judge imposed a five-year prison term. A majority of the Nova Scotia Court of Appeal reduced the sentence to three years, finding the trial judge had not properly connected his mental illness and addictions to his Indigenous background and degree of responsibility. The Supreme Court dismissed the Crown’s appeal, leaving the three-year sentence in place.

The three steps
Justice Michelle O’Bonsawin, writing for the majority with Justices Andromache Karakatsanis, Sheilah Martin, Nicholas Kasirer and Mary Moreau, described a three-step process. Judges must first assess the seriousness of the offence and the offender’s responsibility, taking into account the Indigenous circumstances of both the offender and the victim. They must then identify the objectives of the sentence, giving primary consideration to denunciation and deterrence, according to a Canadian Lawyer’s account of the ruling. Finally, they must choose a proportionate sentence in light of the Indigenous context.

Two obligations, one decision
The framework responds to two problems recognized in Canadian law: the disproportionate imprisonment of Indigenous people and the disproportionate violence experienced by Indigenous women and girls. O’Bonsawin called them “two intertwined social crises.” She wrote that viewing the Criminal Code provisions that address them as conflicting “misrepresents their goals,” and that “the obligations must be applied together.” The majority said denunciation and deterrence do not necessarily require a longer jail term in every case, and described reconciliation as “an important lodestar” in applying the rules. Sentencing circles, the court said, should serve as a bridge to Indigenous justice models, “not an exercise in performative tokenism.”

The dissent
Chief Justice Richard Wagner and Justices Malcolm Rowe, Mahmud Jamal and Suzanne Côté dissented. They would have allowed the Crown’s appeal and restored the original five-year sentence. The narrow division underscores the difficulty of reconciling principles that respond to different, related harms.

Reaction from Indigenous lawyers
APTN News reported views from two Indigenous lawyers who followed the case. Christa Big Canoe, legal director of Aboriginal Legal Services, said the Gladue approach “is not a list” and that “jail’s not working.” Donald Worme, a Cree lawyer and founding member of the Indigenous Bar Association, said: “It is clear that there must be denunciation of violence against Indigenous women in this country.” The two comments show how differently people experience the same legal problem.

What the ruling does and does not do
The ruling does not create an automatic sentence reduction for Indigenous offenders, and it does not diminish the obligation to consider violence against Indigenous women. Sentencing remains an assessment of the offence, the people involved and the evidence before the court. Trial judges now have a more explicit sequence for explaining how they considered both. The next test will be how lower courts apply that guidance to cases with different facts, especially where public safety, rehabilitation and the need to denounce serious violence pull in different directions.