Supreme Court ruling highlights NWT gap in Indigenous-led sentencing

A Supreme Court of Canada decision has stressed the importance of Indigenous-led sentencing processes.

In a split five-four decision in R v Cope issued earlier this month, the court found judges must consider the circumstances of both Indigenous offenders and Indigenous victims during sentencing in cases involving intimate partner violence.

Writing for the majority, Justice Michelle O’Bonsawin set out a three-part sentencing approach for such cases.

In that approach, judges must:

• consider the gravity of the offence and degree of responsibility of the offender, given the Indigenous background of both the offender and victim;
• identify what the sentence is meant to achieve, with primary consideration given to denouncing and deterring the offence; and
• consider appropriate sentencing procedures and sanctions, given the offender’s Indigeneity and the perspective of their community.

Across Canada, Indigenous people are overrepresented in the criminal justice system. Indigenous women and girls face disproportionately high levels of violence.

A provision added to the Criminal Code in 1996 – intended to address the overincarceration of Indigenous people – requires judges to consider all available sanctions other than imprisonment that are reasonable in the circumstances, with particular attention to the circumstances of Indigenous offenders.

The Criminal Code also contains provisions introduced by Parliament in 2019 directing judges to do more to protect vulnerable victims of intimate partner violence, particularly Indigenous female victims, by imposing strong denunciatory and deterrent sentences.

The Supreme Court of Canada decision in R v Cope comes after calls for clarity on how sentencing judges should apply those provisions in cases in which both an offender and victim are Indigenous.

“Viewing these provisions as conflicting misrepresents their goals,” Justice O’Bonsawin wrote.

“The sentencing judge’s task is to impose a proportionate and individualized sentence that gives due consideration to both the needs of Indigenous offenders and Indigenous victims. Reconciliation must serve as an important lodestar in applying these provisions together.”

Implications in the NWT

Nicola Langille, a defence lawyer based in Toronto who also practises in the NWT, represented intervener Queen’s Prison Law Clinic in the case.

She told Cabin Radio in an email that the Supreme Court of Canada’s decision contains two things of “particular importance” to the territory.

First, Langille said, while the court found judges need to give primary consideration to denunciation and deterrence when sentencing an Indigenous offender for committing a violent crime against an Indigenous woman or girl, the court said judges must still consider other sentencing factors.

“Sentencing judges do not need to reflexively increase the severity of sentence where the victim is an Indigenous woman or girl in response to Parliament’s changes,” Langille wrote. “Instead, sentencing judges still must consider all relevant sentencing objectives to arrive at a just and proportionate sentence.”

Second, Langille noted the court highlighted the importance of Indigenous-led sentencing processes such as sentencing circles, saying they “present an opportunity to braid Indigenous law” with non-Indigenous legal traditions.

“The courts must take seriously Parliament’s direction to incorporate Indigenous perspectives into the sentencing process,” she wrote.

Langille said it is “unfortunate” that, unlike other jurisdictions, the NWT has no established program to facilitate Indigenous-led sentencing processes.

“It means that a valuable, community-led perspective is simply unavailable in this jurisdiction when the courts impose sentence on an Indigenous offender,” she wrote.

It is not unusual in the NWT, which has a majority-Indigenous population, for both the offender and victim to be Indigenous in criminal cases.

As in other parts of Canada, Indigenous people are overrepresented in the NWT’s justice system and Indigenous women and girls face high rates of violence.

According to a 2023 report from the NWT Bureau of Statistics, the territory had the second-highest rate of intimate partner violence in Canada behind Nunavut.

The latest annual report from the NWT corrections service states that in 2024-25, 81 percent of men and 95 percent of women incarcerated in the territory were Indigenous.

‘Sentencing circles are an important tool’

Cabin Radio requested comment from Blair McPherson, an NWT-based Crown lawyer who represented another intervener, the Public Prosecution Service of Canada, in R v Cope.

Alessia Bongiovanni, a spokesperson for the prosecution service, responded with a written statement that “prosecutors are still reviewing the judgment to assess any potential next steps.”

In its written argument to the court, the prosecution service had highlighted the importance of Indigenous offenders getting help and rehabilitation in a culturally relevant environment to break the cycle of abuse.

The prosecution service stated that sentencing circles can assist in rehabilitation, help foster a sense of accountability in the offender, give a voice to victims and communities, and assist judges in learning more about an offender, victim, community and available culturally appropriate programming.

In R v Cope, the prosecution service said, the court could provide guidance on sentencing circles for the first time.

“Sentencing circles are an important tool in helping the sentencing judge to properly apply the principles specific to Indigenous offenders and victims of crime,” the Supreme Court of Canada concluded.

The court said while it is ultimately up to judges to determine if and how to incorporate a sentencing circle as part of a sentencing process – and decide the sentence – they are required to reasonably engage with the perspectives expressed in a sentencing circle.

The court said factors judges should consider include the availability of an appropriate sentencing circle program and the willingness of affected people and community members to participate in the process.

Decision comes from Nova Scotia case

The Supreme Court of Canada decision stems from a Nova Scotia case in which a Mi’kmaw man with severe mental health and substance abuse issues pleaded guilty to the aggravated assault of his intimate partner, a Mi’kmaw woman.

The provincial court ordered an Indigenous background report and held a sentencing circle at which members of the community recommended a more holistic sentence, including treatment rather than further jail time. The judge ultimately sentenced the man to five years in prison.

The Nova Scotia Court of Appeal reduced that sentence to three years, finding the sentencing judge had not adequately considered the connection between the man’s mental illness, substance abuse and Indigenous background when deciding how responsible he was for the offence.

In its recent majority decision, the Supreme Court of Canada dismissed the Crown’s appeal, finding the lower appeal court was correct in reducing the sentence to ensure it properly reflected the sentencing circle process and the role of the man’s mental illness in the offence.

The four justices who dissented said they would have allowed the appeal and restored the original sentence, finding the sentencing judge had properly weighed all relevant factors.