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 the victim are Indigenous, which some lawyers for Nunavut say could have ramifications for the Inuit-majority territory.
The Court is hearing a 2021 case from Halifax, in which both the offender and the victim are Mi’kmaw. Harry Arthur Cope pleaded guilty to assaulting Brittany Sack, his on-and-off partner, and was sentenced by a provincial court to five years in prison in 2023.
But he appealed his sentence, saying the judge had not properly considered the Gladue principles.
Those principles stem from a 1999 Supreme Court decision that was intended to address the over-incarceration of Indigenous people by asking 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 incarceration.
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 that the judgment of the court of appeal did not properly consider that piece of legislation.
Effectively, this case looks at how to balance sentencing options when both the victim and the 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 in Tulugaq Law, said this case is a Canadian first.
“There has not yet been a case that really shows if there is a hierarchy between them, the one that takes precedence … denunciation on principle to avoid prison, because of the prison crisis of Indigenous peoples,” he said, adding that it could also include Indigenous women who offend.
Richard Wagner, Chief Justice of the Supreme Court of Canada. All nine judges heard the case of His Majesty the King v. Harry Arthur Cope. They did not say when they will give a decision. (Sean Kilpatrick/The Canadian Press)
According to Statistics Canada, between 2009 and 2021, 86 percent of those accused of murdering 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 the jurisdictions of Canada, Nunavut had the largest proportion of Indigenous people in custody in 2023, 92 percent, according to a Canadian government database. It is followed by the NWT, Saskatchewan, Manitoba and Yukon.
Setting up a directive for Gladue reports
The 1999 Gladue decision also stated that specialized pre-sentence reports, now known as Gladue reports, must provide background on Indigenous offenders.
They are used in several Canadian jurisdictions, including in the Yukon which has trained Gladue report writers.
Nunavut uses them in theory. But Mesher says there are few writers in the territory, and he has yet to see a Gladue report submitted to a Nunavut court in his career. However, Gladue factors are often incorporated during sentencing and bail hearings.
Mesher believes this Supreme Court case could also affect the way Gladue reports are delivered.
“It can have a profound effect on how the sentencing process goes in Nunavut when most of our offenders and most of our victims are Indigenous and we don’t have the resources to highlight that properly under the Canadian Criminal Code,” he said.
Curtis Joseph Mesher of Tulugaq Law believes this Supreme Court case involving an Indigenous offender and victim highlights the need for individualized approaches to sentencing. (Joana Draghici/CBC)
Tara Qungaataq Totoo Fotheringham, President of the inuit women’s association Amautit Nunavut, says that she has seen some judges in nunavut regret the needs, and mentioned that they understand the most nunavummimut from intergeneral trauma.
“It’s not just this idea of carte blanche that when you’re dealing with Inuit offenders, that they all come from the same trauma because that’s not true,” she said.
A false dichotomy
While Fotheringham supports the intent of the Gladue principles, she says she is deeply concerned that they are being misapplied in a way that unintentionally minimizes or excuses violence.
“When the Gladue factors are elevated in such a way as to elevate accountability, proportionality and public safety, the result is not justice, it is harm,” she said.
“Amautiit rejects the false framing that Inuit women must choose between supporting Gladue, demanding safety and responsibility. We can and should have both.”
Tara Qunngaataq Tootoo Fotheringham, president of the Nunavut Inuit Amautiit Women’s Association, says there is a false dichotomy that Canadians have to choose between protecting Indigenous women and girls from violence at the expense of over-incarcerating Indigenous men. (Jason Empson/CBC)
Mesher agrees that the case is not about one or the other, and reinforces the need for Canada to maintain an individualized approach to sentencing.
“That has been a feature of the Canadian justice system for decades, that there is that freedom to design things specific to the crime that the judges heard and the circumstances of everything that happened before them,” he said.
Stephen Shaddock, director of policy at Nunavut’s Department of Justice, says Gladue principles are applied in the territory’s correctional facilities and community justice initiatives. It also recognizes the need to reduce the over-incarceration of Indigenous people, as well as to protect victims of gender-based violence.
“This means ensuring that offenders have access to counseling and treatment to take responsibility for their actions, while also providing preventive and other support for potential victims and survivors, such as protection orders and victim services,” he wrote in a statement.
Looking outside the courtroom
Even as a lawyer, Anne Crawford of Iqaluit does not believe changes in the judicial process will adequately protect Indigenous women.
“Women in Nunavut often state that they don’t feel they are getting the protection of the law that other people are because Indigenous offenders are getting extra consideration,” she said.
She says because few cases of violence actually end up in the courts, she prefers that the focus be on solutions outside the courtroom.
“We are great at determining guilt and innocence and understanding the facts and spending all kinds of money on lawyers. But where are the resources at that moment when the family is ready to make a change,” she said.
Anne Crawford, who has practiced law in Nunavut for more than three decades, says she hears from women who don’t feel they are protected by the law. (Jordan Konek/CBC)
Fotheringham doesn’t believe prison is the answer either, and agrees that the answer needs to be more resources to help people heal.
“We want to have healing homes in Nunavut where people can actually get support for the whole family. Because when an offender offends, they don’t just impact themselves, they impact their family,” she said.