Top court sets sentencing framework for cases involving Indigenous offenders, victims

OTTAWA – The Supreme Court of Canada says in cases where an Indigenous offender commits an offence against an intimate partner who is an Indigenous woman, a judge must apply sentencing principles related to both Indigenous offenders and victims of crime in a harmonious way.

In a 5-4 judgment Friday, the top court provided guidance and set out a new framework for determining an appropriate sentence in such cases.

The court said Indigenous people are disproportionately and excessively imprisoned, while Indigenous women and girls suffer from unacceptably high levels of violence and abuse.

“Both of these pressing issues have been shaped by the experiences of colonization, and addressing them together is central to the ongoing process of reconciliation,” Justice Michelle O’Bonsawin wrote on behalf of the majority.

Parliament has tried to address both concerns through the criminal sentencing process, the top court noted.

In light of the phenomenon of Indigenous over-incarceration, a Criminal Code provision that took effect in the 1990s directs judges to consider sanctions other than prison that are reasonable in the circumstances. The court pointed out particular attention is to be paid to the circumstances of Indigenous offenders.

The court also underscored the importance of two provisions added to the Criminal Code more recently. One requires a sentencing judge to squarely consider the objectives of denunciation and deterrence when the offence involves the abuse of a person who is vulnerable because, for example, they are an Indigenous woman or girl.

Another section directs a judge sentencing an offender for abuse of their intimate partner to consider the increased vulnerability of women and girls, and to pay particular attention to those who are Indigenous, the court noted.

Sentencing circles may include participants such as the offender, lawyers, the sentencing judge, Elders, the victim or their proxy and community members with knowledge of the offender. The top court said information gleaned from a circle can help the sentencing judge properly apply the principles specific to Indigenous offenders and victims.

The court said although the sentencing provisions invite engagement with distinct Indigenous perspectives on crime and punishment, they do not create a parallel regime for Indigenous offenders, and the consideration of Indigenous perspectives cannot displace a sentencing judge’s authority and responsibility under the Criminal Code.

The court said the sentencing judge must take three specific steps in such cases.

First, the judge must assess the gravity of the offence and the degree of responsibility of the offender in light of the Indigenous backgrounds of the parties.

Second, the judge must sensitively identify the relevant criminal sentencing objectives, emphasizing denunciation and deterrence, while still considering other relevant sentencing objectives.

Third, the judge must select the proportionate and just sentence in light of the Indigenous context, given that Parliament has expressly directed sentencing judges to consider all available sanctions other than imprisonment. 

The top court added that the sentencing circle process can be relevant to understanding the availability of alternative sentencing options in the community, as well as the community’s perspective on the sentence that would best achieve the objectives.

The court said the sentencing methodology in such cases is not a mathematical formula but a guide to help judges take into account the circumstances of Indigenous offenders and the vulnerability of Indigenous women and girls to abuse and violence.

“Proportionality requires due attention to the circumstances of the offender and of the victim in light of relevant sentencing objectives,” O’Bonsawin wrote. “The appropriate balancing will inevitably vary depending on the specific circumstances of the offence.”

The ruling comes in the case of Harry Arthur Cope, a Mi’kmaq man with severe mental health challenges who was sentenced to five years in prison after pleading guilty in 2022 to aggravated assault against his partner, a Mi’kmaq woman.

The Nova Scotia Court of Appeal reduced the sentence to three years. The Supreme Court ruled Friday the three-year sentence should stand.

The top court found the sentencing judge did not recognize that the offender’s mental illness contributed to the commission of the aggravated assault and did not consider the effect of that illness on the relevant sentencing objectives.

The sentencing judge would have settled on a shorter prison term had she properly considered the offender’s significant mental health issues, particularly when viewed in light of a sentencing circle’s recommendations in the case, the Supreme Court said.

The four dissenting Supreme Court judges said the Crown’s appeal should be allowed and the original sentence imposed by the sentencing judge restored.

They said the majority’s 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.

This report by The Canadian Press was first published Oct. 9, 2026.