Supreme Court case involving Indigenous offender and victim could have repercussions in the North

The Supreme Court of Canada is deliberating a case that could shape the way sentences are handed down in cases where both the offender and victim are Indigenous, which some Nunavut lawyers say could have ramifications for the Inuit-majority territory.

The court is hearing a 2021 case from Halifax, in which both the offender and victim are Mi’kmaw. Harry Arthur Cope pleaded guilty to assaulting Brittany Sack, his on-and-off partner, and he was sentenced by a provincial court to five years in prison in 2023.

But he appealed his sentence, saying the judge hadn’t properly considered the Gladue principles.

Those principles stem from a 1999 Supreme Court ruling that was intended to address the over-incarceration of Indigenous people by requiring courts to consider the unique circumstances of Indigenous offenders during sentencing — such as the impacts of colonization, residential schools and intergenerational trauma — and look at alternatives to jail.

The Nova Scotia Court of Appeal reduced Cope’s original sentence, but Crown attorney Erica Koresawa took the case to the supreme court.

A 2019 amendment to the Criminal Code required courts to give “primary consideration” to deterring violence against Indigenous women — a response to the recommendations of the National Inquiry into Missing and Murdered Indigenous Women and Girls. Koresawa argued the appeal court’s sentence didn’t appropriately consider that piece of legislation. 

Effectively, this case looks at how to balance sentencing options when both the victim and offender are Indigenous, so any resulting directive would have repercussions for an Inuit-majority territory like Nunavut.

Curtis Joseph Mesher, who specializes in criminal law at Tulugaq Law, said this case is a Canadian-first.

“There hasn't yet been a case that really kind of shows if there is a hierarchy at all between them, what takes precedence … denunciation over the principle to avoid incarceration, given the incarceration crisis of Indigenous peoples,” he said, adding that can also include Indigenous women who offend.

According to Statistics Canada, between 2009 and 2021, 86 per cent of those accused of killing an Indigenous woman or girl were themselves Indigenous. First Nations, Métis and Inuit women and girls are also six times more likely to be killed than non-Indigenous women and girls.

And among all of Canada’s jurisdictions, Nunavut had the greatest proportion of Indigenous people in custody in 2023, at 92 per cent, according to a Canadian government database. It's followed by the N.W.T., Saskatchewan, Manitoba and Yukon. 

The 1999 Gladue decision also stated that specialized pre-sentence reports, now known as Gladue reports, should provide background on Indigenous offenders.

These are used in several Canadian jurisdictions, including in Yukon which has trained Gladue report writers. 

Nunavut does use them in theory. But Mesher says there are very few writers in the territory, and he has not seen a Gladue report submitted in a Nunavut court in his career so far. However, Gladue factors are often incorporated during sentencing and bail hearings.