Supreme Court split over sentencing when the offender and the victim are both Indigenous

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Driscoll considered Cope’s background, as Canadian courts must do when sentencing an Indigenous offender, known as Gladue factors. She also weighed special factors from the perspective of the victim — that the assault was violence against a vulnerable Indigenous woman.

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Driscoll rejected the proposal for a conditional sentence by the sentencing circle and sentenced Cope to five years’ imprisonment. Nova Scotia’s Court of Appeal then reduced his sentence to three years.

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It was the Crown’s appeal of that appeal that took Cope’s case to the Supreme Court, where its contentiousness remained over two days of hearings last December, after which the justices reserved their decision.

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A slim majority of Supreme Court judges — Andromache Karakatsanis, Nicholas Kasirer, Michelle O’Bonsawin, Mary T. Moreau, and the now-retired Sheilah Martin — upheld the appeal decision of a reduced sentence for Cope. Dissenting justices Chief Justice Richard Wagner, Suzanne Côté, Malcolm Rowe and Mahmud Jamal would have restored the trial judge’s five-year sentence.

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In the Supreme Court, majority rules.

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The majority presented a workflow for judges to keep paying special attention to Indigenous offenders in the Gladue process while incorporating newer provisions to account for vulnerable victims and Indigenous females that followed recommendations by the Missing and Murdered Indigenous Women and Girls inquiry.

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“In cases where an Indigenous offender commits an offence against his intimate partner who is an Indigenous woman, a sentencing judge must apply the principles related to both Indigenous offenders and victims of crime, and do so harmoniously to arrive at a just and proportionate sentence,” the majority opinion says.

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The court found the sentencing judge should have more keenly linked mental-health factors to the offender’s moral blameworthiness and more meaningfully engaged with the sentencing circle’s input.

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“The lessons of the sentencing circle are more than just a source of factual information relevant to a fit sentence, but are key to understanding the Indigenous perspective on sentencing…. What is required is that a sentencing judge reasonably engage with the perspectives expressed in the sentencing circle in crafting a fit and appropriate sentence.”

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The majority opinion said the sentencing circle process “will be relevant both to understand the availability of alternative sentencing options that may exist in the community, as well as the community perspective on the sentence that will best achieve the relevant sentencing objectives.”

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The minority of justices said the original five-year sentence should be restored, writing that the sentencing judge appropriately considered the nature of the crime and the victim’s particular vulnerabilities. She also properly considered the circumstances of the offender, the Gladue factors, and his mental illness.

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“The majority’s proposed sentencing framework fails to reflect Parliament’s direction to sentencing judges… to prioritize denunciation and deterrence, and to generally impose harsher sentences for the abuse of vulnerable victims, including Indigenous women and girls,” the minority opinion says.

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Philippe Boucher, a PhD student in Legal Studies at Carleton University and criminology lecturer at Université de Montréal, has been studying the Cope case and said the division on the court shows an evolution in opinion.