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Criminal - Intimate Partner Violence
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. R. v. Cope [indigenous criminal sentencing and IPV]
In R. v. Cope (SCC, 2026) the Supreme Court of Canada summarizes this criminal sentencing for indigenous offenders case and current related doctrine, here where the victim was indigenous themselves - and this from a 'intimate partner violence' context:[1] The Canadian criminal justice system has alienated many Indigenous people, struggled to meet the needs of Indigenous communities and, in some circumstances, exacerbated the intergenerational trauma inflicted upon Indigenous people through colonial policies like the residential school system (Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (2015) (“TRC Final Report”), at pp. 211-12, 217-19 and 225-27). The parties to this appeal ask us to consider two intertwined social crises: Indigenous people find themselves disproportionately and excessively imprisoned (see R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, at para. 59; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 62-63), while Indigenous women and girls suffer from unacceptably high levels of violence and abuse (National Inquiry into Missing and Murdered Indigenous Women and Girls, Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls (2019) (“MMIWG Report”), vol. 1a, at pp. 55-57). 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.
[2] Parliament has sought to address both concerns through the criminal sentencing process. Since 1996, Parliament has required that a sentencing judge consider sanctions other than imprisonment, with particular attention to the circumstances of Indigenous offenders (Criminal Code, R.S.C. 1985, c. C-46, s. 718.2(e)). This Court’s decisions in Gladue and Ipeelee breathed life into this statutory language, but the problem of overincarceration has only worsened since (Office of the Correctional Investigator, Ten Years Since Spirit Matters: A Roadmap for the Reform of Indigenous Corrections in Canada (2023), at pp. 4-5 and 18). In 2019, Parliament added language addressing violence against Indigenous women and girls in response to the MMIWG Report (see House of Commons Debates, vol. 148, No. 435, 1st Sess., 42nd Parl., June 17, 2019, at p. 29245 (Hon. D. Lametti)). When imposing sentences for violence against Indigenous women and girls, the court must give primary consideration to the objectives of denunciation and deterrence, and, in cases of intimate partner violence, it must consider the increased vulnerability of the victim with particular attention to the circumstances of Indigenous women and girls (Criminal Code, ss. 718.04 and 718.201).
[3] This appeal engages both sets of principles because it involves the aggravated assault of an Indigenous woman by her intimate partner, who is also an Indigenous person. It provides this Court with an opportunity to demonstrate how the sentencing considerations mandated by Parliament can be woven together to arrive at a just and proportionate sentence. Importantly, courts must take seriously Parliament’s direction that when an Indigenous woman is a victim of a crime, primary consideration must be given to “the objectives of denunciation and deterrence of the conduct that forms the basis of the offence” (s. 718.04). This concern is amplified when, as in the present case, the act of violence is inflicted on an intimate partner (s. 718.201), a pernicious and qualitatively distinct form of harm this Court has said the law must do more to address. At the same time, courts must not abandon the “judicial duty” to give real force to Parliament’s efforts to address the overincarceration of Indigenous people (Gladue, at para. 34). The sentencing process must reflect the lived experiences of Indigenous women and girls while respecting the principles affirmed in Gladue and Ipeelee.
[4] As these reasons will explain, ss. 718.04, 718.2(e) and 718.201, when applied together in a case like the present, require a sentencing judge to apply three steps in their approach to sentencing. First, in evaluating the gravity of the offence and the moral blameworthiness of the offender, a sentencing judge must pay particular attention to the systemic or background factors related both to the Indigeneity of the victim and of the offender, as required by ss. 718.2(e) and 718.201. The factors identified by this Court in Gladue and Ipeelee guide the assessment of how the offender’s Indigeneity impacts their moral blameworthiness. The sentencing judge must also consider factors relevant to how the victim’s unique intersectional vulnerability as an Indigenous woman or girl impacts the proportionate sentence. I identify those factors here, drawing on important work like the MMIWG Report. Second, a sentencing judge, in identifying the relevant sentencing objectives, must give primary consideration to the objectives of denunciation and deterrence (s. 718.04), while still considering other sentencing objectives that may be engaged by the circumstances. Third, in selecting a sentence proportionate to the gravity of the offence and the degree of responsibility of the offender that will best serve the relevant sentencing objectives, a sentencing judge must consider the types of sentencing procedures and sanctions that may be appropriate given the Indigeneity of the offender and the perspective of their community, as is required by s. 718.2(e). Where they take place, sentencing circles can provide powerful insight into each step of the analysis.
[5] This methodology is not a mathematical formula, but a guide to assist sentencing judges in the difficult task of giving particular consideration both to the circumstances of Indigenous offenders, in s. 718.2(e), and to the vulnerability of Indigenous women and girls to abuse and intimate partner violence, highlighted in ss. 718.04 and 718.201. Proportionality requires due attention to the circumstances of the offender and of the victim in light of relevant sentencing objectives. The appropriate balancing will inevitably vary depending on the specific circumstances of the offence.
[6] In this case, an Indigenous woman suffered significant violence at the hands of an intimate partner. A sentence of imprisonment was undoubtedly required in the circumstances. But as the Court of Appeal observed, the sentencing judge erred in principle by failing to assess the extent to which the respondent’s mental illness contributed to his offending, including by overlooking the perspective of his community on this issue expressed through the sentencing circle process. Sentencing circles provide an important means through which Indigenous communities express their views on how to address sentencing. They offer a unique opportunity for Indigenous perspectives on crime and punishment to be considered by the criminal justice system and address the alienation many Indigenous people feel related to that system. That setting can contribute to understanding the circumstances of both the offender and the victim. As this Court has said, true reconciliation is a long-term project served by “braiding together” Indigenous law with non-Indigenous legal traditions to form a “single, strong rope” (Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5, at paras. 7 and 90, citing G. Christie, “Indigenous Legal Orders, Canadian Law and UNDRIP”, in UNDRIP Implementation: Braiding International, Domestic and Indigenous Laws (2017), 48, at p. 48). Sentencing circles provide an opportunity for this braiding, in line with Parliament’s directives in ss. 718.04, 718.2(e) and 718.201.
[7] A sentencing judge is not bound to accept a sentencing circle’s recommendations, but failure to engage with the sentencing circle process at all in their decision can amount to a failure to properly apply ss. 718.04, 718.2(e) and 718.201. This is so even when the sentencing circle’s ultimate recommendations cannot be accepted as an appropriate sentence. A meaningful approach to crime that affects Indigenous communities will benefit from a better understanding of those communities and their distinct perspectives and laws, which sentencing circles can provide. Sentencing judges fail to pay particular attention to the circumstances of Indigenous offenders, Indigenous victims and the impacts on their communities, as required by ss. 718.04, 718.2(e) and 718.201, when they fail to engage with sentencing circles and instead treat their recommendations as a box-checking exercise. Such failures further alienate Indigenous people from the criminal justice system, directly contrary to Parliament’s reconciliatory purposes underlying these sentencing provisions.
[8] The critical importance of addressing violence against Indigenous women and girls, and the related provisions in the Criminal Code, cannot justify a failure to pay particular attention to the circumstances of Indigenous offenders and the impacts on their communities, as required by s. 718.2(e), even if the sentencing judge cannot ultimately accept the recommendations of a sentencing circle. The requirements of s. 718.2(e) are entirely compatible with giving proper attention to the circumstances of the Indigenous women and girls who are victims of crime, as required by ss. 718.04 and 718.201. Parliament clearly requires sentencing judges to consider both of these perspectives. Engaging with Indigenous perspectives does not hinder the denunciation and deterrence of crime, nor does primary consideration given to those objectives, and to the vulnerability of Indigenous women in intimate partnerships, preclude proper application of Indigenous background principles.[1] To the contrary, Indigenous perspectives may well be key to effectively addressing violence in those communities and to protecting Indigenous women and girls. Sentencing circles may shed light on how best to achieve the denunciation and deterrence of violence in each specific case.
[9] In this case, the sentencing circle expressed the view that incarceration would be futile and highlighted available community-based programming that could actually address the respondent’s long-term pattern of unlawful conduct. Importantly, the sentencing circle made clear that the community was committed to addressing his mental health challenges, which lay at the heart of his offending, and to work with him in the community towards ending the cycle of violence. The sentencing judge failed to engage with this important context in assessing the role of mental illness in the commission of the offence and in selecting, with regard to the respondent’s Indigeneity, a just and proportionate sentence. Notably she did not recognize that the respondent’s mental illness contributed to the commission of the aggravated assault, nor did she consider the impact that illness had on what sentence would actually meet the relevant sentencing objectives. This error had a material impact on the sentence. Even though the sentencing circle recommendation of a non-custodial sentence was not available, the mental health factor, viewed in light of the perspective expressed by the circle, militated towards a shorter term of imprisonment that would see the respondent access community-based programming sooner.
[10] This case shows that the vulnerabilities of the Indigenous victim and the circumstances of the Indigenous offender can both be properly considered in fixing a proportionate sentence for the respondent. Sentencing judges must craft a fair and proportionate sentence that takes account of both Indigenous background principles and the primary consideration that must be given to deterrence and denunciation where the victim is an Indigenous woman or girl, while fully respecting all the applicable principles and objectives of Criminal Code sentencing. There is no doubt that the offence committed by the respondent was one of significant violence and that the seriousness of that conduct was compounded by the fact that the Indigenous victim was his intimate partner. The Court of Appeal rightly said that “the aggravated assault was horrendous” (2024 NSCA 59, 439 C.C.C. (3d) 283, at para. 10) and remained mindful of this, as reflected in the emphasis it placed on individualization as “central” to the proportionality analysis (para. 74). It considered this Court’s teachings in respect of the seriousness of offences in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, for example, and at the same time it considered the guidance from Gladue and Ipeelee. After deciding that the sentencing judge erred and that this error had an impact on the sentence, the Court of Appeal re-sentenced the respondent to three years of incarceration, less credit for time served.
[11] In my view, the Court of Appeal was correct to intervene and substitute a sentence of three years’ imprisonment on the aggravated assault charge. In light of the grave nature of this intimate partner violence offence and the vulnerability of the victim, a sentence of imprisonment was required. The Court of Appeal identified a sound middle ground that would separate the respondent from society for a time but would ensure he could access community programming sooner, reflecting the priorities and perspective offered by the sentencing circle on the best way to end the cycle of violence. In light of the specific circumstances of this case, including the Indigeneity of both the offender and the victim, and the role of mental health in the perpetration of the offence, the Court of Appeal’s sentence is just and appropriate. It is severe enough to denounce and deter this intimate partner violence, a form of violence that has been overlooked for far too long, while also offering a real chance to address the respondent’s long-term pattern of offending rooted in mental health challenges and substance abuse.
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E. Integrating the Applicable Sentencing Provisions
[108] In cases like the present where an Indigenous offender commits an offence against his intimate partner who is an Indigenous woman, a sentencing judge must apply the principles related to both Indigenous offenders and victims of crime, and do so harmoniously to arrive at a just and proportionate sentence. I recall that the modern approach to statutory interpretation prefers harmony to conflict, such that ss. 718.04, 718.2(e) and 718.201, must be presumed to function together as a coherent scheme (see R. v. Nguyen, 2026 SCC 10, at para. 139; Pointe-Claire (City) v. Quebec (Labour Court), 1997 CanLII 390 (SCC), [1997] 1 S.C.R. 1015, at para. 61). The considerations highlighted by each section may pull in different directions, but there is nothing unusual about that. Sentencing is always a matter of understanding the full context of an offence and the offender, both aggravating and mitigating aspects, to arrive at an appropriate sanction that contributes to the relevant sentencing objectives and, ultimately, to the maintenance of a just, peaceful and safe society.
[109] In integrating the applicable sentencing provisions, I am guided by three organizing ideas that follow from the analysis above. First, though the provisions invite engagement with distinct Indigenous perspectives on crime and punishment, sentencing judges ultimately retain the authority and responsibility to craft a fit sentence according to objectives and principles outlined in the Criminal Code. These provisions 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. Importantly, ss. 718.2(e), 718.201, and 718.04 are still operating within the criminal sentencing regime, such that they do not displace the fundamental sentencing principle of proportionality (s. 718.1), nor the ultimate objective of protecting society and contributing to respect for the law and the maintenance of a just, peaceful and safe society (s. 718). A sentencing judge must not lose sight of this broader legislative context that frames the analysis.
[110] Second, given these provisions invite a sentencing judge to take into account the social context of both Indigenous offenders and victims, applying them together harmoniously will require a nuanced understanding of that context. Each Indigenous person that comes before the criminal justice system, whether as an offender or as a victim, has been uniquely shaped by the experiences of colonialism. As such, every Indigenous person — both offender and victim — comes before the courts with their own “particular” circumstances that deserve consideration. It is critical that sentencing judges bear in mind that social circumstances and perspectives on crime differ markedly from one Indigenous community to the next (see Gladue, at para. 73), and within communities. For example, it has long been recognized that women and girls and other marginalized groups face intersectional effects of colonization (see, e.g., E. Kaiser-Derrick, Listening to what the criminal justice system hears and the stories it tells: Judicial sentencing discourses about the victimization and criminalization of Aboriginal women, master thesis, University of British Columbia (2012), at pp. 62-64; see also R. v. Sharma, 2022 SCC 39, [2022] 3 S.C.R. 147, at para. 196, per Karakatsanis J., dissenting, but not on this point). As much as is possible on the specific record, a sentencing judge must look past generalizations and apply these provisions in light of the actual social context, or particular circumstances, of the offence.
[111] Third, the context surrounding the enactment of ss. 718.2(e), 718.201 and 718.04 shows that they were intended to advance reconciliatory purposes and that Parliament did not intend to override the need for sentencing judges to consider alternatives to imprisonment under s. 718.2(e) when introducing ss. 718.04 and 718.201. If Parliament had intended to override s. 718.2(e), it would have expressly done so, such as by stating that ss. 718.04 and 718.201 operate “notwithstanding” s. 718.2(e) (see Century Services Inc. v. Canada (Attorney General), 2010 SCC 60, [2010] 3 S.C.R. 379, at paras. 117-18). As I have said, it is obvious from the legislative history that Parliament intended to address the twin crises of violence against Indigenous women and girls and Indigenous overincarceration together through the application of these provisions. Further, the modern approach to statutory interpretation favours an interpretation of ss. 718.2(e), 718.04 and 718.201 that preserves the principles from Gladue. Consequently, we must avoid a mechanical approach to ss. 718.04 and 718.201 that treats them as only existing in conflict with s. 718.2(e). Parliament is presumed to know the law, and to intend harmony.
[112] As Chamberlain J. recently observed, “viewing these provisions as conflicting misrepresents their goals” (R. v. Dedam, 2026 ONCJ 409, at para. 73). The underlying common thread of these provisions is to address the colonial injustice that Indigenous people have and continue to face in the criminal justice system. These provisions should not be seen “as competing remedies pulling sentencing in opposite directions, but as distinct threads woven into a common fabric” (paras. 74 and 83). When these provisions are engaged, a sentencing judge is not “choosing between the interests of Indigenous offenders and Indigenous victims”; instead 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 (para. 79). Further, viewing ss. 718.04 and 718.201 as generally requiring incarceration would diminish the effect of s. 718(2)(e). It “would undermine established sentencing principles and effectively treat increased incarceration of Indigenous offenders as the primary response to the victimization of Indigenous women” (Dedam, at para. 81). As explained previously, this is not what Parliament intended when it introduced ss. 718.04 and 718.201.
[113] Reconciliation must therefore serve as an important lodestar in applying these provisions together. As both of these social crises flow from the experiences of colonization, they will only be solved through the long-term process of reconciliation (see generally Reference re An Act Respecting First Nations, Inuit and Métis children, youth and families, at paras. 10-12). The criminal justice system is a key site for reconciliation (see Gladue, at para. 65; J. Borrows, Canada’s Indigenous Constitution (2010), at p. 217).
[114] Applying ss. 718.04, 718.2(e) and 718.201 together in light of these organizing ideas requires the sentencing judge to take three specific steps as part of their sentencing process:1. Assess the gravity of the offence and the degree of responsibility of the offender in light of the Indigeneity of both the offender and the victim (ss. 718.201 and 718.2(e));
2. Sensitively identify the relevant criminal sentencing objectives, giving primary consideration to denunciation and deterrence (s. 718.04); and
3. Select the proportionate and just sentence in light of the Indigenous context (s. 718.2(e)). [115] Each step deserves further comment.
(1) Assessing the Gravity of the Offence and the Degree of Responsibility of the Offender in Light of the Indigeneity of the Offender and the Victim
[116] The sentencing judge must determine the relative gravity of the offence and the degree of responsibility of the offender, the key considerations underlying the principle of proportionality. These factors must be assessed in light of the Indigeneity of the victim and offender respectively. Sections 718.201 and 718.2(e) essentially mirror each other, with a sentencing judge needing to pay “particular attention” to those factors in assessing the gravity of intimate partner violence of an Indigenous woman or girl and the moral blameworthiness of an Indigenous offender.
[117] Section 718.201 requires the sentencing judge to consider the vulnerability of Indigenous women and girls, which may notably be relevant to accurately assessing the gravity of the offence. A sentencing judge must be alert to the statistically higher levels of violence faced by women and girls generally, and by Indigenous women and girls in particular, as well as the failure of the justice system to take that violence as seriously as it should. Similarly, a sentencing judge must be alert to the fact that colonialism has impacted and exacerbated the vulnerability of individual Indigenous women and girls in different ways (see, e.g., B. L. Gunn, “Bringing a Gendered Lens to Implementing the UN Declaration on the Rights of Indigenous Peoples”, in J. Borrows et al., eds., Braiding Legal Orders: Implementing the United Nations Declaration on the Rights of Indigenous Peoples (2019), 55). A sentencing judge must engage with how this general vulnerability to violence manifests in the context of the specific case before them (see Barton, at para. 200). This requires considering those factors or indicia that may have contributed to the vulnerability of the specific Indigenous woman or girl.
[118] Some factors relevant to the vulnerability of Indigenous women and girls are already familiar to sentencing judges as factors under s. 718.2(e). For example, factors such as substance abuse, poverty, or previous sexual abuse or physical abuse may be relevant to the analysis, especially where an intimate partner has abused these vulnerabilities in the commission of an offence (see Iqalukjuaq, at paras. 33 and 35). However, as I have discussed above, there will be factors particularly relevant to the circumstances of Indigenous women and girls, including social and economic marginalization, habitation in a remote community with their abuser and alienation from the criminal justice system.
[119] In assessing the degree of responsibility of an Indigenous offender, it will be necessary to consider the “unique systemic or background factors which may have played a part in bringing [that] offender before the courts” (Gladue, at para. 66; s. 718.2(e)). Consideration of these factors is mandatory; sentencing judges have a duty to apply s. 718.2(e), even when the offence is violent and serious (Ipeelee, at paras. 84-85). Whereas s. 718.201 requires particular attention to the unique circumstances that are relevant to the vulnerability of the specific Indigenous woman or girl who is a victim of violence, s. 718.2(e) requires consideration of those unique systemic or background factors relevant to the specific Indigenous offender. These factors may attenuate an Indigenous offender’s moral blameworthiness to the extent those factors may have played a part in the offending (Wells, at para. 38; Ipeelee, at para. 73).
[120] As LeBel J. explained for this Court in Ipeelee, both components of the proportionality analysis are critical, and a just sanction will be one “that reflects both perspectives on proportionality and does not elevate one at the expense of the other” (Ipeelee, at para. 37; see also R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (C.A.), at paras. 93-94). Similarly, ss. 718.201 and 718.2(e) do not cancel each other out. The sentencing judge must apply these two sentencing imperatives alongside each other, in accordance with the particular offence and offender before them. Weaving together the aforementioned factors is necessarily contextual and must be understood in light of the principle of proportionality.
[121] When a sentencing circle takes place, it may provide information and perspectives relevant to both the gravity of the offence and the degree of responsibility of the offender in light of the Indigeneity of both the offender and the victim. Importantly, other community members may have perspectives that are relevant to understanding the relationship between the offender or victim’s Indigeneity and the offence.
(2) Sensitively Identifying the Criminal Sentencing Objectives
[122] The sentencing judge must identify the relevant sentencing objectives that the sentence must be crafted to serve. Where s. 718.04 applies, the sentencing judge must give “primary consideration” (“attention particulière”) to denouncing and deterring violence against Indigenous women and girls. This directs more attention to addressing the criminal conduct at issue, and less to the rehabilitation of the offender or repairing the harm they have caused to the victim or community. However, the sentencing judge must still be mindful of the other sentencing objectives. While giving “primary consideration” to deterrence and denunciation indicates the other objectives cannot be given priority, they are still validly considered in sentencing (Friesen, at paras. 102-4).
[123] The dissent suggests that I treat s. 718.04 as “a matter of discretion for the sentencing judge” and suggests that I would disagree with the idea that sentencing judges “are not permitted to give priority to other sentencing principles” (para. 257). I disagree with both of the dissent’s assertions. My reasons say repeatedly that s. 718.04 means primary consideration must be given to deterrence and denunciation (see, e.g., paras. 2, 3, 4, 68, 71, 75 and 122, above). I have never suggested that sentencing judges have discretion not to give primary consideration to deterrence and denunciation where s. 718.04 applies.
[124] The Indigenous context may guide how a sentencing judge understands the objectives of deterrence and denunciation in a given case. As this Court recognized in Gladue, “current concepts of sentencing are inappropriate because they have frequently not responded to the needs, experiences, and perspectives” of Indigenous communities (para. 73; see also Ipeelee, at para. 74; Jacko, at para. 61). Giving “primary consideration” to denunciation and deterrence can accordingly mean something different for Indigenous offenders than other offenders, because of the “particular attention to the circumstances of [Indigenous] offenders” that s. 718.2(e) requires. As this Court has already recognized and Indigenous communities have emphasized, the sentencing objectives of denunciation and deterrence may be achieved through non-carceral sanctions for Indigenous offenders, depending on the circumstances of the particular case. Parliament must be presumed to have been sensitive to this when crafting s. 718.04. This is one example of where Indigenous perspectives can be braided into the sentencing process. In particular, where sentencing circles occur, they may shed insight into how the specific community views denunciation and deterrence and what it means to achieve those objectives in that community. Sentencing circles can themselves act as a vehicle to achieve the sentencing objectives of deterrence and denunciation, by sending a message to others on the standards of tolerated behaviour, by increasing the understanding of the harm related to the offence, and by impacting familial and personal relationships (see I.F., Canadian Civil Liberties Association, at paras. 24-25; I.F., Trial Lawyers Association of British Columbia, at para. 14).
[125] Further, while the sentencing judge must give primary consideration to denunciation and deterrence in these cases, they retain discretion to decide what weight to give other sentencing objectives, which cannot overbear them. This is another opportunity where the Indigenous perspective may inform the sentencing judge’s exercise of discretion. For example, an Indigenous community may place a greater emphasis on repairing the wrongs done and restoring harmony in the community as opposed to retributive objectives (see the discussion of the response to crime in Cree communities, H. L. Friedland, The Wetiko Legal Principles: Cree and Anishinabek Responses to Violence and Victimization (2018), at p. 85). As this Court said in Gladue, “most traditional [Indigenous] conceptions of sentencing place a primary emphasis upon the ideals of restorative justice” (para. 70 (emphasis deleted)). This may cause a sentencing judge to place relatively more emphasis on the objectives of rehabilitation, reparation and promoting a sense of responsibility in the offender, which are enumerated in the Criminal Code (s. 718(d) to (f)), without, of course, displacing the primacy of denunciation and deterrence. I stress this will necessarily vary depending on the case and the perspective of the specific community.
[126] Finally, the sentencing judge must not lose sight of Parliament’s message, in enacting s. 718.04, that courts must do more to eradicate violence against Indigenous women and girls. Considering the Indigenous perspective in selecting the relevant sentencing objectives requires not just sensitivity to the need for rehabilitation and similar objectives, but also for the need to meaningfully address this violence and secure a safe future for women and children. A sentencing judge must keep this front of mind in their analysis.
(3) Selecting the Appropriate Sanction Given the Indigenous Context
[127] The sentencing judge must choose the fit and appropriate sentence that will be proportionate to this assessment of the offence’s gravity and the offender’s degree of responsibility, and that will best serve the identified objectives. Secondary sentencing principles like parity and restraint guide this choice. The sentencing judge must also consider the appropriateness of the sentencing procedures and sanctions given the offender’s Indigenous heritage and connections (s. 718.2(e); Gladue, at paras. 66-69; Ipeelee, at para. 61).
[128] The community’s perspective on the just, fit and appropriate sanction will be relevant to that end, and the sentencing judge must be sensitive to the fact that Indigenous and non-Indigenous people may have different views on how to achieve the relevant sentencing goals in a particular community (see Gladue, at para. 71; Ipeelee, at para. 74; see also MMIWG Report, vol. 1a, at p. 719). As I explained above, the Indigenous perspective will be relevant to the effectiveness of a given sanction or sentencing procedure, and is a necessary consideration under s. 718.2(e). On this point, criminal courts have good reason to be open to new perspectives (see Gladue, at para. 65; Ipeelee, at paras. 71 and 79; RCAP, at p. 309). The evidence presented above shows that despite overincarceration of Indigenous people, the problem of violence against Indigenous women and girls persists. For this reason, it is difficult to see how violence against Indigenous women and girls will be addressed by simply putting Indigenous people in prison for longer (see Ewing and Kerr, at pp. 195-96). The overincarceration perpetuates harm to communities that may actually keep the cycle of violence going (see, e.g., Denis-Boileau, at pp. 614-15).
[129] Parliament has expressly directed sentencing judges through s. 718.2(e) to consider “all available sanctions, other than imprisonment”. Applying Parliament’s direction means giving real consideration to alternatives to imprisonment (see Ipeelee, at para. 66), not ignoring them. Sentencing judges must therefore openly consider, informed by the community perspective, alternative sentencing procedures and sanctions that will actually address violence in Indigenous communities (see Ewing and Kerr, at p. 196).
[130] The sentencing circle process, where it has taken place, will be relevant both to understand the availability of alternative sentencing options that may exist in the community, as well as the community perspective on the sentence that will best achieve the relevant sentencing objectives, including denouncing and deterring the wrongful conduct (Taylor, at paras. 87-88).
[131] Applying ss. 718.04, 718.2(e) and 718.201 together in this way will not dictate specific outcomes for Indigenous offenders who commit violence against Indigenous women and girls, but will require the sentencing judge to undertake an informed and contextual analysis in every case. They will not always require a sentence involving imprisonment, depending on the gravity of the offence and the degree of responsibility of the offender, and depending on the availability of appropriate alternative sentencing options to further those objectives. Conditional sentences may provide significant denunciation and deterrence through different conditions tailored to the circumstance of the specific case (Proulx, at paras. 22 and 41). Even when an alternative sentence is not available, the sentencing judge must turn their mind to these principles when determining the period of incarceration. Sentencing an Indigenous offender is not a binary choice between incarceration and alternative sentencing. The full context, including lessons learned from a sentencing circle if it has taken place, informs the exercise of sentencing discretion whatever its nature.
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(2) Sentencing Objectives
[159] The Court of Appeal properly observed that s. 718.04 demands that primary consideration, in sentencing the respondent for the aggravated assault, must be given to the objectives of deterrence and denunciation (para. 111). It rightly noted that the assault was “horrendous” and that the vulnerability of the victim was a significant factor in sentencing (paras. 10, 110 and 116). No one disputes that the abuse of the respondent’s intimate partner, who is an Indigenous woman, is reprehensible and an affront to society’s collective recognition of the need to preserve and honour the lives of Indigenous women and girls (see generally Gunn, at p. 55). The need to deter and denounce such conduct is clear.
[160] At the same time, the Court of Appeal properly recognized that s. 718.04 does not displace the obligation of the sentencing court to consider how to further other sentencing objectives, including rehabilitation (para. 120, citing Bertrand Marchand, at para. 123), nor does it displace the guidance from this Court in Gladue and Ipeelee (C.A. reasons, at paras. 119 and 121).
[161] This record suggests a clear role for the objective of rehabilitation. There is no dispute that the respondent’s reoffending is directly linked to his mental health and substance abuse issues. As the sentencing judge found, “when clean and treating his mental health, [he] is an employable, productive person, and when using, he is a danger to society” (A.R., at pp. 30-31). His Indigenous Background Report suggests his earliest criminal activity coincided with his drug use, which began when he was introduced to opioids by his father at 10 years old (pp. 349-50). This is consistent with the perspective expressed at the sentencing circle that the cycle of reoffending would only end if the respondent’s mental health and substance abuse challenges were actually addressed. It is unsurprising the sentencing circle underlined the need for rehabilitation given the emphasis Mi’kmaw justice places on concepts of restorative justice, re-building relationships and rehabilitating the respondent (p. 366; see also L. J. McMillan, “Living Legal Traditions: Mi’kmaw Justice in Nova Scotia” (2016), 67 U.N.B.L.J. 187, at p. 189; B. P. Archibald and J. J. Llewellyn, “The Challenges of Institutionalizing Comprehensive Restorative Justice: Theory and Practice in Nova Scotia” (2006), 29 Dal. L.J. 297, at p. 335).
[162] In the circumstances, the Court of Appeal was right to give deterrence and denunciation primary consideration, but not exclusive consideration. Given the views expressed by the sentencing circle, the Mi’kmaw approach to justice and the relevance of mental health and substance abuse to the offending, the legislated objective of rehabilitation clearly had a significant role to play in the analysis (s. 718(d)).
[163] Balancing Indigenous background principles and giving primary consideration to deterrence and denunciation where the victim is an Indigenous woman or girl will inevitably turn on the specific circumstances of the case (see Ipeelee, at para. 51). The Court of Appeal recognized this, placing emphasis on individualization as “central” to the proportionality analysis (paras. 74 and 120). . R. v. Greer
In R. v. Greer (Ont CA, 2026) the Ontario Court of Appeal considered 'intimate partner violence', here in the context of a criminal sentencing appeal:[23] As the Crown submits, intimate partner violence extends beyond physical force. It includes implicit or explicit threats as well as overt violence: R. v. Finnessey (2000), 2000 CanLII 16862 (ON CA), 135 O.A.C. 396 (C.A.), at para. 16, leave to appeal refused, [2000] S.C.C.A. No. 565; R. v. Samery (2007), 2007 CanLII 16455 (ON SC), 219 C.C.C. (3d) 435 (Ont. S.C.), at paras. 54-56, aff’d 2007 ONCA 643. Similarly, intimate partner abuse under s. 718.2(a)(ii) of the Criminal Code encompasses conduct that harms, exploits vulnerability, or wrongfully asserts power even absent overt violence or threats: Cook c. R., 2009 QCCA 2423, 250 C.C.C. (3d) 248, at para. 76, leave to appeal refused, [2010] S.C.C.A. No. 112; R. v. Costello, 2020 CanLII 43695 (N.L. Prov. Ct.), at paras. 31-32; see also R. v. Lis, 2020 ONCA 551, 152 O.R. (3d) 125, at para. 57.
[24] The trial judge was entitled to conclude that the present and prior offences formed part of a pattern of intimate partner violence and abuse. The present offences involved threats against the complainant and constituted abuse by emotionally harming her and wrongfully asserting power through the unlawful entry into her dwelling and the carving of a threatening message. The prior convictions for uttering threats likewise constitute intimate partner violence. The remaining offences – including breaches of court orders, break and enter, and property offences directed at the complainant – were properly viewed in context as part of the same pattern of abuse. As the trial judge found, this conduct caused significant emotional and psychological harm and left the complainant fearing for her safety for years.
[25] The trial judge properly emphasized the gravity of the offences given their intimate partner violence context. Intimate partner violence is a grave and pervasive social harm whose seriousness “can hardly be overstated”: R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852, at p. 872. Courts have consistently stressed the need for sentences that emphasize denunciation, deterrence, and protection of the public: R. v. Boucher (2004), 2004 CanLII 17719 (ON CA), 186 C.C.C. (3d) 479 (Ont. C.A.), at para. 27, citing R. v. Denkers (1994), 1994 CanLII 2660 (ON CA), 69 O.A.C. 391 (C.A.).
[26] Parliament has likewise directed courts to treat abuse of an intimate partner as aggravating and to prioritize denunciation and deterrence while recognizing victims’ heightened vulnerability: Criminal Code, ss. 718.2(a)(ii), 718.201, 718.04. These provisions strengthen the justice system’s response by ensuring that sentences reflect the full gravity of intimate partner violence: R. v. Bunn, 2022 MBCA 34, 79 C.R. (7th) 351, at paras. 100, 103.
[27] These concerns apply equally where the victim is a former partner. Violence against and abuse of a former partner may punish separation, undermine independence, and generate lasting fear and emotional harm, sometimes escalating unpredictably. Sentencing must protect former partners’ ability to live safely and independently after separation: Boucher, at para. 27, citing Denkers; R. v. Bates (2000), 2000 CanLII 5759 (ON CA), 146 C.C.C. (3d) 321 (Ont. C.A.), at paras. 30-38; R. v. Butcher, 2020 NSCA 50, 387 C.C.C. (3d) 417, at paras. 147, 178-79, leave to appeal refused, [2020] S.C.C.A. No. 310.
[28] The trial judge applied these principles. She found that the appellant’s escalating conduct caused the complainant to reasonably fear for her safety and that of her family years after the relationship ended. She, therefore, treated the complainant’s status as a former spouse as aggravating and properly emphasized denunciation, deterrence, and protection of the public.
[29] The trial judge was also entitled to treat the appellant’s extensive record as highly aggravating. Persistent breaches of court orders undermine the administration of justice and heighten moral culpability. Where such orders protect intimate partners, repeated breaches also threaten victims’ safety and ability to rebuild their lives, reinforcing the need for denunciation and deterrence: Bates, at paras. 29, 35-36; R. v. Louison, 2008 SKCA 69, 310 Sask. R. 217, at para. 14; Costello, at paras. 29-30, 33.
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