Supreme Court creates new sentencing test for Indigenous offenders and victims

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In cases where an offender and a victim are Indigenous, the Supreme Court of Canada says judges must consider the circumstances of both.

In a 5-4 decision, the majority set up a three-part test to resolve the conflict between sentencing provisions that consider the circumstances of  Indigenous offenders and the sentencing considerations aimed at denunciation and deterrence when the victims are Indigenous women and girls, as well as their vulnerability.

The case involves Harry Arthur Cope, a Mi’kmaw man with significant mental health and substance abuse issues, who pleaded guilty to aggravated assault against his intimate partner, who is also Mi’kmaw. The sentencing judge participated in a sentencing circle, which felt that more incarceration would not help Cope, given his physical and mental well-being. Instead, it recommended a “holistic approach to address the harm that was committed,” including inpatient treatment programming.

The judge acknowledged Cope’s inter-generational trauma and mental illness, and found his moral culpability was less than that of someone without those factors. However, she also considered the victim’s Indigeneity and felt the court must give primary consideration to deterrence and denunciation. She sentenced Cope to five years in prison, in part because she could not say that he wasn’t a danger to society.

The majority of the Nova Scotia Court of Appeal found that the sentencing judge had erred in her handling of the mental health issues, as well as her “underemphasis of the connection between the [respondent’s] mental illness, his drug abuse, and Gladue factors.” Cope’s sentence was reduced to three years, less an 18-month remand credit. 

The Crown appealed to the Supreme Court of Canada, which dismissed the appeal and upheld the Court of Appeal’s sentence.

Not a mathematical formula

Writing for the majority, Justice Michelle O’Bonsawin laid out a three-part test for these situations, beginning with an evaluation of the gravity of the offence and the offender’s moral blameworthiness, using existing Gladue or Ipeelee assessments. 

Second, the sentencing judge must identify the relevant sentencing objectives and give primary consideration to denunciation and deterrence while still considering other sentencing objectives. 

Finally, the sentencing judge must consider the types of procedures and sanctions that may be appropriate, given the offender's Indigeneity and their community's perspective, including sentencing circles.

O’Bonsawin said the methodology isn’t a mathematical formula, but a guide for judges when faced with the difficult task of considering the Indigenous offenders’ circumstances, as set out in section 718.2(e) of the Criminal Code, and the vulnerability of Indigenous women and girls to abuse and intimate partner violence, as highlighted in sections 718.04 and 718.201. 

“The appropriate balancing will inevitably vary depending on the specific circumstances of the offence,” she wrote.

The dissenting judges disagreed with the Court of Appeal’s assessment of the sentencing judge’s considerations and felt that they did not offer sufficient deference to her analysis and would have restored the original five-year sentence.

Kyla Lee of Acumen Law in Vancouver and a past chair of the CBA’s criminal justice section, describes the majority’s decision as “great.” She says it’s a good example of the reconciliation work the Court is meant to be doing in the wake of the Truth and Reconciliation Report and the findings of the national inquiry into Missing and Murdered Indigenous Women and Girls.

“The Court really recognizes and takes seriously its obligation to do that reconciliation,” she says. 

“It gives more meaning to the ‘braiding’ of Indigenous legal traditions and our western traditions that is hinted at in other decisions.”

When considering the situations of both sides in this case, Lee says the Court had to strike a “fine balance,” and landed on a well-articulated test for sentencing judges about how to apply the Glaude factors. 

“The fact that there is now a very clear roadmap for judges, especially when it comes to Indigenous sentencing traditions, is really helpful.”

It will be important to see how the test is applied and how the law develops from here, Lee says. 

She’s cautiously optimistic that this will lead to a reduction in the length and number of incarcerations and that greater consideration will be given to Indigenous sentencing factors, as well as to recommendations from sentencing circles and First Nations courts and communities. 

“It’s also instructive to lawyers about our competencies and what we need to be doing when we’re representing Indigenous clients, and how we need to be working to get our clients into those systems, and to try and stream them out of the traditional Western sentencing places.”

Lee says sentencing judges are not doing their jobs correctly if they are not actually taking the community’s feedback.

Sentencing an individualized process

Dylan Leiper, an associate with Addario Law Group LLP in Toronto who represented the Canadian Civil Liberties Association as an intervenor, was pleased the majority made clear that denunciation and deterrence are not necessarily achieved only through prison time.

“Lots of sanctions can achieve those same objectives,” she says.

The decision makes clear that the objectives of denunciation and deterrence are not necessarily about separating the person from society, even though that’s traditionally what has happened. Instead, O’Bonsawin said that a fact-specific inquiry is required, as the facts differ from offender to offender and their specific communities.

Lee says the Court has previously recognized that restrictive probation conditions or significant rehabilitative conditions can send the same kind of denunciation and deterrence message as traditional incarceration.

Leiper says the majority picked up on the CCLA’s arguments on how sentencing circles and community-based sentencing processes provide a unique and important perspective. Given their proximity to the community, they can provide a sentencing court with more accurate or effective sanctions to achieve denunciation and deterrence. Further, she notes the protection of Indigenous women and girls isn’t necessarily achieved through incarceration.

Maija Martin, lead counsel for Martin Barristers, which represented the Criminal Lawyers Association as intervenors, says the Court underscored the fact that sentencing is an individualized process by declining to increase sentences across the board for Indigenous offenders who have committed violent offences against Indigenous women.

Further, the majority stated that courts should not “unconditionally rely on Friesen” to suggest there must be harsher sentences where Indigenous women and girls are the victims. That’s an opportunity for defence counsel to consider alternative punishments besides jail.

“That takes a lot of work, like we saw done by counsel for Mr. Cope in this case,” Martin says. 

“But the Supreme Court has let everybody know that courts should be open to considering sentences other than jail that could still meet the principles of denunciation and deterrence.”

That can include developing a treatment plan to address the root causes of crime, which she says would be welcome at a sentencing hearing.