|
Criminal - Indigenous (Gladue) (5). R. v. Cope [sentencing]
In R. v. Cope (SCC, 2026) the Supreme Court of Canada canvasses the recent history of CCC statutory amendments to address indigenous criminal sentencing [esp CCC 718.2(e) 'Other sentencing principles']:B. Addressing the Overincarceration of Indigenous People (Section 718.2(e))
(1) Overincarceration of Indigenous People
[38] The Canadian criminal justice system has struggled to address the overincarceration of Indigenous people. The Canadian Corrections Association observed as early as 1967 that Indigenous people were overincarcerated at a rate between three to five times their proportion of the population in some regions (Indians and the Law: A Survey Prepared for The Honourable Arthur Laing (1967), at pp. 22-23). By 1988, the Canadian Bar Association reported that nearly 10 percent of the federal penitentiary population was Indigenous (M. Jackson, “Locking Up Natives in Canada” (1989), 23 U.B.C. L. Rev. 215, at p. 215).
[39] Despite the problem of Indigenous overincarceration having been documented for decades, and despite attempts to address it, Indigenous overincarceration has significantly worsened in recent years (TRC Final Report, at pp. 217-19; see MMIWG Report, vol. 1a, at p. 719). This is a sad but true reality. In 1996, Indigenous people were five times more likely than non-Indigenous people to be imprisoned (J. B. Sprott, C. M. Webster and A. N. Doob, “Criminal Justice Reform and the Mass Imprisonment of Indigenous People in Canada”, in K. M. Campbell and S. Wellman, eds., Justice, Indigenous Peoples, and Canada: A History of Courage and Resilience (2024), 177, at p. 182). In 2015, the Truth and Reconciliation Commission of Canada called on governments to commit to eliminating the overrepresentation of Indigenous people in custody over the next decade. That decade having elapsed, recent statistics suggest Indigenous people are more than 10 times more likely to be imprisoned that non-Indigenous people (Statistics Canada, “Overrepresentation of Indigenous and Black adults in provincial and federal custody”, in The Daily, January 14, 2026 (online)). As observed in 2024, the number of federally incarcerated Indigenous people had reached a historic high, constituting over 35 percent of Canada’s inmate population (Office of the Correctional Investigator, Annual Report 2023-2024 (2024), at p. 100). The state of “crisis” this Court identified in 1999 (Gladue, at para. 64) has significantly worsened in the intervening years.
[40] The overincarceration of Indigenous women is specifically acute. Indigenous women are overincarcerated in the system at rates even higher than Indigenous men. In the 2023-2024 reporting year, of the women in federal custody, 49 percent were Indigenous women, despite Indigenous people representing just five percent of the overall Canadian population (Correctional Service Canada, Indigenous Corrections Accountability Framework: Annual Report 2023 to 2024 (2024), at p. 5).
[41] Not only is the overincarceration of Indigenous people a growing problem, but incarcerated Indigenous people can expect to spend significantly more years incarcerated than non-Indigenous people (A. Owusu-Bempah et al., “Years of life lost to incarceration: inequities between Aboriginal and non-Aboriginal Canadians” (2014), 14:585 BMC Public Health 1, at p. 4). In the federal correctional system, Indigenous people serve six times as many years in prison as compared to non-Indigenous people.
[42] The Truth and Reconciliation Commission noted poverty and poor socio-economic conditions, substance abuse, family violence, the child welfare system, and systemic racism as factors that contribute to the overincarceration of Indigenous offenders (The Final Report of the Truth and Reconciliation Commission of Canada, vol. 5, Canada’s Residential Schools: The Legacy (2015), at pp. 220-34). As explained by the Royal Commission on Aboriginal Peoples (“RCAP”), these systemic issues “are linked to the historical and contemporary experience of colonialism”, including policies such as the residential school system (Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada (1996), at p. 309).
(2) Section 718.2(e) as a Response to Overincarceration
[43] Responding to the phenomenon of Indigenous overincarceration, Parliament added s. 718.2(e) to the Criminal Code in 1996 (An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22, s. 6; see Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, No. 62, 1st Sess., 35th Parl., November 17, 1994):718.2 A court that imposes a sentence shall also take into consideration the following principles:
....
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
718.2 Le tribunal détermine la peine à infliger compte tenu également des principes suivants :
....
e) l’examen, plus particulièrement en ce qui concerne les délinquants autochtones, de toutes les sanctions substitutives qui sont raisonnables dans les circonstances et qui tiennent compte du tort causé aux victimes ou à la collectivité. [44] As then Minister of Justice Allan Rock explained to the Standing Committee on Justice and Legal Affairs, “the reason [the government] referred specifically there to [Indigenous] persons is that they are sadly overrepresented in the prison populations of Canada” (p. 62:15). Minister Rock emphasized that “[w]hat we’re trying to do, particularly having regard to the initiatives in the [Indigenous] communities to achieve community justice, is to encourage courts to look at alternatives where it’s consistent with the protection of the public — alternatives to jail — and not simply resort to that easy answer in every case” (ibid.). The enactment had, in this sense, a “remedial” purpose, seeking to reduce the use of prison with sensitivity to criminal justice initiatives undertaken by Indigenous communities (Gladue, at para. 48). It is a goal that the Truth and Reconciliation Commission subsequently linked to the broader process of reconciliation (TRC Final Report, at pp. 184 and 217-20).
[45] This Court first turned to interpreting s. 718.2(e) in Gladue. As this Court explained, and reiterated in Ipeelee, the proper application of s. 718.2(e) requires that a sentencing judge pay particular attention to the circumstances of Indigenous offenders. Specifically, a sentencing judge must (1) pay particular attention to the unique systemic or background factors which may have played a part in bringing a specific Indigenous offender before the court; and (2) consider the types of sentencing procedures and sanctions which may be appropriate in the circumstances for that specific offender because of their Indigeneity (see Gladue, at paras. 66-69; Ipeelee, at paras. 59-60 and 73-74). The determination of a fit and proper sentence requires that a sentencing judge consider both of these requirements flowing from s. 718.2(e) in their analysis (Ipeelee, at para. 72). I consider each in turn.
(3) Considering Factors Relevant to the Moral Blameworthiness of the Indigenous Offender
[46] The first set of considerations include factors such as, but not limited to, substance abuse, poverty, overt racism, previous sexual or physical abuse, cultural dislocation, or familial connections to policies including residential schools. These factors may have played a part in bringing an Indigenous offender before the courts and may attenuate an Indigenous offender’s moral blameworthiness (R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 38; Ipeelee, at paras. 60-61 and 73; Denis-Damée v. R., 2018 QCCA 1251, at para. 102; R. v. Kreko, 2016 ONCA 367, 131 O.R. (3d) 685, at para. 24). An Indigenous offender’s degree of responsibility is “diminished to the extent that the deprivation and damage done by dislocation, marginalization and racism could reasonably have contributed to the offending” (R. v. S. (R.), 2023 ONCA 608, 168 O.R. (3d) 641, at para. 54, per Paciocco J.A., concurring; see also Ipeelee, at para. 73).
[47] These considerations will not universally pull sentences down for Indigenous offenders. As George J., as he then was, explained in R. v. Boyd, 2015 ONCJ 120, self-identification as an Indigenous person “does not amount to a sentencing discount” (para. 15; see also Ipeelee, at para. 75). Section 718.2(e) requires a case-specific analysis, and unique systemic or background factors will vary between Indigenous offenders, even if, as a general proposition, historical dispossession and colonial policies have resulted in widespread socio-economic and cultural deprivation relevant to criminogenic circumstances (see Ipeelee, at para. 77; Berkland v. R., [2022] NZSC 143, [2022] 1 N.Z.L.R. 509, at paras. 115 and 126). Rather than arbitrarily pulling sentences down for Indigenous offenders, s. 718.2(e) provides a different method of analysis for appropriately determining an Indigenous offender’s degree of responsibility on the basis of unique systemic and background factors (Ipeelee, at para. 59; see M.-È. Sylvestre, “The (Re)Discovery of the Proportionality Principle in Sentencing in Ipeelee: Constitutionalization and the Emergence of Collective Responsibility” (2013), 63 S.C.L.R. (2d) 461, at pp. 471-80; see Berkland, at paras. 109-10).
[48] As explained by Williams J. of the Supreme Court of New Zealand in Berkland, intergenerational sources of criminal offending “are important because they can provide rational explanations for why an offender has come to offend” (para. 109). Considering the example of historical dispossession of Indigenous people, Williams J. explained that such dispossession “can help to explain an offender’s limited life options, poor coping skills or other criminogenic circumstances that made the offending more likely” (para. 109; see also para. 126, citing Ipeelee, at para. 7). As in Canada, however, the “mitigatory effects of historical deprivation must be based on explanatory facts, not ethnic assumptions” (Berkland, at para. 110). The analysis is not a box-ticking exercise where an offender identifies as Indigenous and a sentencing judge is compelled to drop sentences (see Ipeelee, at para. 75). Rather, s. 718.2(e) demands a deeper understanding of how systemic and background factors are relevant to an individual offender’s involvement with the criminal justice system.
(4) Considering Appropriate Sentencing Procedures and Sanctions Given the Offender’s Indigeneity
[49] Section 718.2(e) also requires that a sentencing judge consider what sanctions or alternative procedures are most appropriate and effective in light of the offender’s Indigeneity (see Gladue, at paras. 66 and 69; Ipeelee, at para. 74; Wells, at para. 39). The effectiveness of a given sanction or sentencing procedure may be different for many Indigenous offenders because, as this Court observed in Gladue, conventional “concepts of sentencing . . . have frequently not responded to the needs, experiences, and perspectives of [Indigenous] people or [Indigenous] communities” (para. 73). Accordingly, courts must “conduct the sentencing process and impose sanctions taking into account the perspective of the [Indigenous] offender’s community” (Wells, at para. 39). A sentence and sentencing procedure that reflects those perspectives “may more effectively achieve the objectives of sentencing in a particular community” (Ipeelee, at para. 74), including deterrence and denunciation. A sentencing judge may consider the perspective of an Indigenous community on various questions such as whether the community supports the offender’s rehabilitation; the social issues affecting the community; how the community is addressing those issues; and, whether the community is willing and has the resources to respond to criminal behaviour (see, e.g., M.-A. Denis-Boileau, “The Gladue Analysis: Shedding Light on Appropriate Sentencing Procedures and Sanctions” (2021), 54 U.B.C. L. Rev. 537, at pp. 548-49, citing R. v. Gladue, 2012 ABCA 118, 522 A.R. 254, at para. 6; R. v. M.-S., 2018 ONCA 259, 46 C.R. (7th) 78, at para. 23; R. v. Kuliktana, 2020 NUCA 7, 390 C.C.C. (3d) 550, at para. 31).
[50] Considering the Indigenous perspective also goes beyond the purely pragmatic needs and capacity of the Indigenous community to include Indigenous communities’ laws, perspectives, and approaches on the sentencing process itself (see Gladue, at paras. 70-74 and 91-92; Ipeelee, at para. 74; R. v. Jacko, 2010 ONCA 452, 101 O.R. (3d) 1, at paras. 61-63; see also M.-A. Denis-Boileau and M.-È. Sylvestre, “Ipeelee and the Duty to Resist” (2018), 51 U.B.C. L. Rev. 548, at p. 606). While Indigenous perspectives, law and legal traditions will not displace the sentencing judge’s ultimate responsibility for determining a sentence that satisfies sentencing principles outlined in the Criminal Code, the second set of s. 718.2(e) considerations present an opportunity to “braid” Indigenous law and legal traditions alongside the conventional application of sentencing law. As observed by this Court in Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, reconciliation will be achieved only through “a continuous transformation of relationships and a braiding together of distinct legal traditions and sources of power that exist” (para. 90, citing J. Leclair, “Zeus, Metis and Athena: The Path Towards the Constitutional Recognition of Full-Blown Indigenous Legal Orders” (2023), 27:2 Rev. Const. Stud. 77). Section 718.2(e) directs sentencing judges to “braid” in Indigenous perspectives in the sense that they must “abandon the presumption that all offenders and all communities share the same values when it comes to sentencing and . . . recognize that, given these fundamentally different world views, different or alternative sanctions may more effectively achieve the objectives of sentencing in a particular community” (Ipeelee, at para. 74; see also Denis-Boileau and Sylvestre, at pp. 554-55). This braiding of the Indigenous legal perspective into the criminal sentencing of Indigenous offenders advances the reconciliatory purpose underlying s. 718.2(e) by encouraging creative solutions to the challenge of Indigenous overincarceration.
[51] This braiding does not mean that sentencing jurisdiction is conferred on Indigenous communities, nor that sentencing judges must defer to Indigenous legal traditions, as suggested by the dissent (para. 239). Nor does it “require the judge to consider a sanction that would not further the sentencing objectives in the Criminal Code” (at para. 240). It is the dissent’s narrow reading of s. 718.2(e) that is contrary to Parliament’s clear intention for this provision and the settled law of this Court set out in Gladue and Ipeelee. Section 718.2(e) directs “sentencing judges to undertake the process of sentencing aboriginal offenders differently” and it alters “the method of analysis” for sentencing Indigenous offenders (Gladue, at para. 33 (emphasis added)). Courts must consider how “fundamentally different world views” can affect the achievement of sentencing objectives in the case of an Indigenous offender (Ipeelee, at para. 74, quoting RCAP, at p. 309). The braiding in of Indigenous perspectives is therefore firmly rooted in s. 718.2(e) as interpreted by the jurisprudence. It furthers Parliament’s direction in the Criminal Code; it does not detract from it.
(5) Courts Always Have a Duty to Apply These Principles in Light of Parliament’s Goal to Address Indigenous Overincarceration
[52] After Gladue was decided, some appellate courts placed undue emphasis on the observation in Gladue that “[g]enerally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same” (para. 79), minimizing or excluding altogether the application of s. 718.2(e) for violent offences (Ipeelee, at para. 84; see also B. Ewing and L. Kerr, “Reconstructing Gladue” (2024), 74 U.T.L.J. 156, at pp. 188-89). Interpreting para. 79 this way risks blunting Parliament’s purpose of addressing Indigenous overincarceration. As explained by Professor Kent Roach, “the focus on the serious case has the effect of deflecting attention away from the primary concerns expressed in Gladue about the overuse of prison. In this way, the transformative potential of Gladue may have been blunted by the focus on the most serious cases” (“One Step Forward, Two Steps Back: Gladue at Ten and in the Courts of Appeal” (2009), 54 C.L.Q. 470, at p. 504).
[53] Taking note of this criticism, this Court in Ipeelee identified “the irregular and uncertain application of the Gladue principles to sentencing decisions for serious or violent offences” as “perhaps [the] most significant issue in the post-Gladue jurisprudence” (para. 84). This Court explained that para. 79 had received “unwarranted emphasis” (para. 84), clarified that courts have a duty to consider the unique circumstances of the Indigenous offender in every case and cautioned that “[t]he generalization drawn in [para. 79] . . . was not meant to be a principle of universal application” (Ipeelee, at para. 85 (emphasis added), citing Wells, at para. 50; see also Friesen, at para. 92).
[54] The dissent notes that “sentencing necessarily has a limited role in combatting the causes of complex social issues such as Indigenous overincarceration” and that s. 718.2(e) “cannot resolve that disproportion on its own” (para. 235). While it is of course true that the sentencing process cannot be expected, on its own, to redress Indigenous overincarceration and alienation from the criminal justice system (Gladue, at para. 65), this does not absolve courts of the “judicial duty” to give remedial force to s. 718.2(e) (para. 34). It is a misunderstanding of s. 718.2(e) to think that sentencing is not an appropriate means of addressing overrepresentation (Ipeelee, at paras. 64 and 66). After all, sentencing judges are the ones who are responsible for the decision of whether and for how long to incarcerate Indigenous offenders. They are, in this way, on the frontlines of the crisis of overincarceration. This is why Parliament chose to specifically direct them to consider alternatives to imprisonment and to do this with particular attention to Indigenous offenders who are overincarcerated (see House of Commons Debates, vol. V, 1st Sess., 35th Parl., September 20, 1994, at p. 5871 (Hon. A. Rock); Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, at p. 62:15). It is not open to courts to decline to apply s. 718.2(e) as intended based on their own assessment, as a matter of policy, that there are other means to address Indigenous overincarceration. They are bound to give s. 718.2(e) real remedial force, as Parliament intended (Gladue, at para. 34).
|
