The Supreme Court of Canada ruled 5-4 on Oct. 9 that judges sentencing an Indigenous offender for violence against an Indigenous woman partner must apply the principles for Indigenous offenders and for victims of crime together, upholding a three-year prison term in a Nova Scotia assault case.
The Canadian Press reported that the court called for the two sets of principles to be applied “in a harmonious way.” The court said Indigenous people are disproportionately and excessively imprisoned, and that Indigenous women and girls face unacceptably high levels of violence and abuse. It said both problems are shaped by colonization and that addressing them together is central to reconciliation.
The case, identified by The Deep Dive as R. v. Cope, involved a Mi’kmaw man with severe mental health challenges who pleaded guilty to aggravated assault against his Mi’kmaw partner. The Canadian Press reported that a sentencing judge imposed five years in prison. A majority of the Nova Scotia Court of Appeal reduced that to three years, and the Supreme Court’s decision leaves the three-year sentence in place.
The ruling settles a tension that has run through Canadian sentencing law for years. One part of the Criminal Code, section 718.2(e), directs judges to consider all available sanctions other than prison, with particular attention to the circumstances of Indigenous offenders. Another, section 718.04, tells courts to give primary weight to denunciation and deterrence when the victim is vulnerable, including Indigenous women. Defence lawyers and Crown prosecutors have often argued that the two pull in opposite directions.
According to The Deep Dive, Justice Michelle O’Bonsawin wrote for the majority, joined by Justices Andromache Karakatsanis, Sheilah Martin, Nicholas Kasirer and Mary Moreau. Justices Malcolm Rowe and Mahmud Jamal, joined by Chief Justice Richard Wagner and Justice Suzanne Côté, would have allowed the Crown’s appeal. The vote breakdown and the names come from that outlet alone, and the Canadian Press report does not name the justices. The dissenting reasons were not described in the coverage reviewed.
The Deep Dive reported that the majority said tougher sentencing directions do not automatically mean longer prison terms, and that denunciation and deterrence can be served by other sanctions depending on the case. It said judges should 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, then identify the purposes of sentencing, and then decide what punishment is fair overall.
The same outlet reported that an Indigenous sentencing circle had recommended treatment and community-based measures rather than further jail time, and that the original sentencing judge gave those recommendations too little weight. That account has not been confirmed by a second outlet.
The decision matters beyond Nova Scotia. Indigenous women are over-represented among victims of intimate partner violence in Canada, and Indigenous men are over-represented in federal and provincial custody. Advocates for Indigenous women have long warned that sentencing rules built around the offender can leave victims feeling that their safety counts for less. Advocates for Indigenous offenders have warned that tougher sentences for crimes against Indigenous women can deepen the incarceration crisis in the same communities. The 5-4 split shows how closely the court itself was divided on where that balance falls.
No reaction from Indigenous organizations, victim services groups or the federal government had been published at the time of writing. The full judgment, listed by the court as decision 21699, was not available to this newsroom, so the framework described here should be read as developing until it is checked against the text.
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Via The Canadian Press (CP24) and The Deep Dive.
