On June 14, the Nova Scotia Court of Appeal released its decision in R. v. Cope, a case in which Aboriginal Legal Services had intervened by providing written and oral submissions. ALS was pleased with the decision that recognized the important role of Gladue factors in sentencing, provided guidance about the recommendations of sentencing circles and highlighted that sentencing judges need to consider how Indigenous women continue to be over-represented as victims of violence.
The majority decision concluded that the judge who had first sentenced Mr. Cope failed to properly consider the connections between his mental health and addictions and his experiences as an Indigenous person. A failure to consider such factors is contrary to the direction the Supreme Court in the case of R. v. Gladue which held that addressing the unique circumstances of Indigenous people at sentencing is one way to address the crisis of Indigenous mass incarceration in Canadian jails.
The appeal decision also addressed the importance of the sentencing circle that had been facilitated by Mi’kmaw Legal Support Network and had provided recommendations that were not followed by the sentencing judge. The two appeal judges explained that often established sentencing principles are not in “alignment with traditional Indigenous approaches to criminal offending” and that courts can do better by ensuring they discuss the circle’s recommendations in their written decisions. The decision says that by doing so, courts demonstrate respect toward the community that produced the report and enhance confidence in the justice system.
Another important part of the decision was its discussion of the failure of the Canadian justice system to protect Indigenous women and girls from violence. As a result of changes to the Criminal Code made following the final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, judges are required to give primary consideration to the sentencing principles of denunciation and deterrence. In R. v. Cope, the majority made clear that this is not intended to undermine Gladue principles. The majority decision quoted from ALS’ written submissions and said that judges instead need to balance, “two aspects of the ongoing legacy of colonialism in the Canadian criminal justice system: the mass incarceration of Indigenous people and the failure to protect Indigenous women and girls from violence.”
This decision shows the importance of ALS’ daily work to ensure that Indigenous people have access to alternatives to the mainstream justice system such as diversion programs and sentencing circles and that all community members, including victims of violence, can access culturally-focused support.
If you would like the read the decision, it is available here: https://decisia.lexum.com/nsc/nsca/en/item/522462/index.do
Emily Hill
Senior Staff Lawyer