Supreme Court sets new sentencing framework for Indigenous intimate partner violence

OTTAWA · The Supreme Court of Canada has ruled that judges must harmonize sentencing principles for Indigenous offenders and Indigenous victims when sentencing an Indigenous person for assaulting an Indigenous intimate partner. In a 5-4 judgment released Friday, the court provided a new three-step framework for such cases. Justice Michelle O'Bonsawin, writing for the majority, said both Indigenous over-incarceration and violence against Indigenous women are shaped by colonization. The court noted Parliament has tried to address both issues through the Criminal Code.

The framework first requires a judge to assess the offence's gravity and the offender's responsibility in light of the parties' Indigenous backgrounds. Second, the judge must sensitively identify sentencing objectives, emphasizing denunciation and deterrence while considering others. Third, the judge must select a proportionate sentence, considering all sanctions other than imprisonment as directed by law. "Proportionality requires due attention to the circumstances of the offender and of the victim in light of relevant sentencing objectives," O'Bonsawin wrote.

The court said the sentencing methodology is a guide, not a formula, to help judges account for Indigenous offenders' circumstances and the vulnerability of Indigenous women and girls. The ruling clarifies that while sentencing provisions invite engagement with Indigenous perspectives, they do not create a parallel regime and cannot displace a judge's authority. The court also showed the potential relevance of sentencing circles, which can include Elders and community members, to inform the process. The decision came in the case of Harry Arthur Cope, a Mi'kmaq man with severe mental health challenges who pleaded guilty in 2022 to aggravated assault against his Mi'kmaq partner. He was originally sentenced to five years in prison, but the Nova Scotia Court of Appeal reduced it to three years. The Supreme Court upheld the three-year sentence, finding the original sentencing judge failed to recognize how the offender's mental illness contributed to the assault and did not consider its effect on sentencing objectives. The court said the sentencing judge would have settled on a shorter term had she properly considered the mental health issues, especially in light of a sentencing circle's recommendations. In dissent, four judges argued the Crown's appeal should have been allowed, restoring the original five-year sentence. They said the majority's framework fails to reflect Parliament's direction to prioritize denunciation and deterrence and impose harsher sentences for abusing vulnerable Indigenous victims.

With files from The Canadian Press, The Globe and Mail and CBC News