Reasons for Judgment — O’Bonsawin J. (Karakatsanis, Martin, Kasirer and Moreau JJ. concurring)
I. Overview
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] 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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
For these reasons, the Crown’s appeal should be dismissed.
II. Facts
A. The Respondent
The respondent is a Mi’kmaw man and a member of Millbrook First Nation. His mother grew up on the reserve with her parents. She described her father, the respondent’s grandfather, as “an abusive drunk” to her mother, leading to her “always having black eyes or bruises on her body” (A.R., at p. 344). While the respondent’s grandfather was able to speak the Mi’kmaw language, he avoided teaching the language to his children and avoided ceremonies. Having attended Shubenacadie Residential School, the respondent’s grandfather “grew up in a time where [Mi’kmaw] culture and traditions were outlawed or shamed, so he tried to be white as much as he could. He would get into trouble for doing native things” (pp. 344-45). The residential school “forbade any aspects of Mi’kmaw culture and identity. Teaching and learning in the residential school were based on European concepts which were contrary to Mi’kmaw teaching styles of observation of Elders . . . which unfortunately disrupted the roles and responsibilities of Mi’kmaw [E]lders, parents, and youth” (p. 346).
The respondent’s parents ended their relationship when he was three years old. Until then, the relationship was violent and volatile, in part based on his father’s struggle with alcohol. These familial struggles continued after the respondent’s mother left with him. This includes his father kidnapping him for a period of six months. The respondent described being exposed to violence and alcohol in the home even after reuniting with his mother. The respondent’s earliest experiences with drugs began when he was 10 years old, when he recalls his father began giving him an opioid painkiller, after which he regularly began using prescription drugs. The respondent reported losing interest in school after this point, instead taking up petty thefts and robberies to sustain his drug addiction. These offences, and the subsequent convictions and sentences, were the beginnings of his lengthy history within the criminal justice system.
The respondent has severe mental health challenges, and has had involvement with mental health services since at least 2007. While in custody for robbery charges in 2016, he was described by a psychiatrist at a psychiatric hospital as being in “a floridly psychotic state” (A.R., at p. 268). He was admitted to a mentally ill offender unit at that hospital on transfer from a correctional facility “due to behavioural management issues being experienced with him” in the health care segregation unit at the facility (ibid.). The respondent remained an inpatient at the hospital following a finding of being not criminally responsible on account of mental disorder in 2017. He remained under the supervision of the Criminal Code Review Board of Nova Scotia until he was granted an absolute discharge in 2020. The respondent was diagnosed with schizoaffective disorder and concurrent substance use disorder set in the context of an individual with antisocial personality traits. The respondent admitted that, in June 2020, he stopped taking his medications and began consuming illicit drugs again.
B. The Victim
The victim in this case is a Mi’kmaw woman from the Sipekne’katik First Nation. She had what the Crown described as a “long-standing off-and-on intimate partner relationship” with the respondent and they have a child together (A.F., at para. 12). The sentencing judge found that this relationship was clearly a dysfunctional one. The sentencing judge also noted that the victim has struggled with addiction and with the loss of a child (p. 21). Further information about the victim and her perspective is limited by the fact she did not provide a statement to police, file a victim impact statement or participate in the sentencing circle. It is undisputed that she was particularly vulnerable to intimate partner violence by the respondent (p. 22).
C. The Offences
On June 27, 2021, the respondent brutally attacked the victim on a sidewalk in Halifax. He repeatedly punched her and threw her to the ground. Upon arriving at the scene of the assault, police found her lying on the ground with severe injuries to the left side of her face. She told the police that the respondent had assaulted her and she pointed to the direction in which he fled. She was brought to an emergency room, where she was assessed as having a broken bone in her face, a possible break in her breastbone, pooling of blood under the skin of her breastbone and significant swelling of her eye.
The police arrested the respondent shortly thereafter. He was released on bail on July 2, 2021, with the condition that he have no contact with the victim. He breached this condition, for which he was arrested and remanded to custody until his eventual release on July 14, 2021. On August 11, 2021, he was arrested again and charged with a further two counts of breaching his release order, after which he remained in custody pending his criminal proceedings.
III. Judicial History
A. Nova Scotia Provincial Court (Driscoll Prov. Ct. J.)
The respondent pled guilty to aggravated assault on April 25, 2022. At this appearance, the court ordered an Indigenous Background Report and that a sentencing circle take place. A sentencing circle conducted by the Mi’kmaw Legal Support Network took place on October 28, 2022, attended by the sentencing judge, as well as the respondent and counsel, but not the victim. The matter returned to court on January 30, 2023, when the respondent pled guilty to breaching his release order and the sentencing judge heard submissions on sentence.
The Crown sought a sentence of five or six years for aggravated assault and the application of the remand time to the breaches. The respondent argued that a conditional sentence order of two years less a day, to be served at a secured in-patient treatment facility specializing in Indigenous addictions programming, followed by two years of probation, would be more appropriate. This position reflected the sentencing circle’s recommendations that community members “did not feel more incarceration will help [the respondent] at this time and in consideration [of his] physical and mental wellbeing” (A.R., at p. 369). Rather, the sentencing circle recommended a “holistic approach to address the harm that was committed”, including completing in-patient treatment programming available at the Mi’kmaw Family Healing Centre (ibid.).
The sentencing judge referenced how the respondent, as a Mi’kmaw person, “has suffered as a result of colonization, inter-generational trauma and systemic racism”, before tracing his experience with poverty, racism, and familial history with alcoholism and substance abuse (A.R., at p. 23). She further observed that the respondent “lives with significant mental illness” (p. 24). The sentencing judge ultimately held that, because of the “Gladue factors, his mental health issues and his major addictions issues, his moral culpability is less than someone without those factors” (p. 31). The sentencing judge did not further comment on how either the respondent’s mental illness, or other factors relevant to s. 718.2(e), impacted the sentencing analysis, including on objectives like deterrence and denunciation.
The sentencing judge did not engage with the sentencing circle process directly. She noted that the respondent’s “community doesn’t recommend any further jail time” (A.R., at p. 28). Although the sentencing judge acknowledged that she had “to consider [the respondent’s] community”, there was no further engagement with the outcome or process of the sentencing circle or mention of the services offered by the community (ibid.).
The sentencing judge considered how the victim’s Indigeneity informed the sentencing analysis. Referencing s. 718.04, the sentencing judge observed that the court must give primary consideration to deterrence and denunciation in cases where the offence involves violence against an Indigenous woman or girl. Similarly, the sentencing judge recognized that s. 718.201 requires, in cases of intimate partner violence, that she “consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of [Indigenous] female victims” (A.R., at p. 16). The sentencing judge ultimately considered the fact that this offence was intimate partner violence against an Indigenous woman as an aggravating factor in sentencing.
The sentencing judge rejected the proposal for a conditional sentence because she could not “say that he is not a danger to society” (A.R., at p. 31). Based on the respondent’s lengthy criminal record, she had concerns about his ability to manage his mental health and substance abuse issues, which were identified as the source of this dangerousness. Relying on the sentencing range provided for aggravated assault in R. v. Tourville, 2011 ONSC 1677, the sentencing judge concluded that a sentence of five years for the aggravated assault, at the high end of the range for this offence, and eight months for the breaches was appropriate.
B. Nova Scotia Court of Appeal, 2024 NSCA 59, 439 C.C.C. (3d) 283
(1) Majority Reasons (Derrick J.A., Bourgeois J.A. Concurring)
The majority explained that sentencing courts are directed by ss. 718.201 and 718.04 to consider the particular vulnerability of Indigenous women and girls to violent offences. At the same time, the majority observed that s. 718.2(e) must be applied even in cases of violence against Indigenous women (para. 117, citing Friesen, at para. 92). The majority further observed that ss. 718.201 and 718.04 “do not negate or dilute the application of s. 718.2(e), or the imperatives in Gladue and Ipeelee” (para. 119). Rather, a sentencing judge must endeavour to balance the overincarceration of Indigenous people and the failure of the criminal justice system to respond to violence against Indigenous women and girls.
The majority further explained that, while it is within the discretion of a sentencing judge not to accept a sentencing circle’s recommendations, those recommendations should be carefully considered and addressed. It noted that careful consideration and explicit engagement with a sentencing circle’s recommendations has several benefits, including enhancing public confidence in the judicial system for Indigenous communities; demonstrating respect for the Indigenous community that produced the sentencing circle recommendations; and offering transparency on the treatment of sentencing circles (paras. 63 and 69-70, citing R. v. Gaudet, 2021 PECA 15, at para. 12).
The majority ultimately found that the sentencing judge erred in how she handled the respondent’s mental health issues. Proportionality requires that the impact of a sentence on an offender with severe mental illness must be considered in sentencing (para. 82, citing R. v. Hills, 2023 SCC 2, [2023] 1 S.C.R. 6, at para. 135). Further, the interconnection between the respondent’s mental illness, substance abuse and factors under s. 718.2(e) raised additional considerations relevant to the proportionality analysis. The sentencing judge’s “underemphasis of the connection between the [respondent’s] mental illness, his drug abuse, and his Gladue factors, produced a sentence that was disproportionate to his moral culpability” (C.A. reasons, at para. 162). Given that error, the majority allowed the appeal and reduced the respondent’s sentence from five years to three, less remand credit of 18 months.
(2) Dissenting Reasons (Scanlan J.A.)
The dissenting judge would have dismissed the appeal. Unlike the majority, he viewed s. 718.2(e) as sitting in “an apparent tension” with ss. 718.201 and 718.04. He suggested that the “impact of s. 718.2(e) and Gladue may have to be revisited during the sentencing process if the offence involved an intimate-Indigenous partner of the accused” (para. 230). He also disagreed with the majority’s treatment of the respondent’s mental health. He saw no reason to interfere with the sentence imposed at first instance on the deferential standard applied on appeal.
As to the sentencing circle, the dissenting judge cautioned sentencing judges against participating in “any process that affects a sentence when that process is not recorded, and open to the public” (paras. 258 and 284). He concluded that a sentencing judge must consider the recommendations of a sentencing circle “like other evidence presented to a sentencing judge” and that they are not bound by such recommendations (paras. 253 and 272).
IV. Issues
The Crown appeals, seeking to restore the longer sentence of imprisonment imposed by the sentencing judge (A.F., at para. 152). In its view, the majority of the Court of Appeal failed to give due deference to the sentencing judge’s weighing of the relevant considerations, including the respondent’s mental health (para. 3). The Crown argues that the sentencing circle recommendations are “only one source of information” before the sentencing judge and that departure from the recommendations need not be specifically justified in the reasons (A.R.F., at para. 8). It takes the position that the substituted sentence undercuts Parliament’s direction in ss. 718.04 and 718.201 and amounts to discounting the lives of Indigenous women (A.F., at para. 4). In its view, ss. 718.04 and 718.201 will often require increasing the length of custodial sentences to respond to the wrongfulness of abusing vulnerable victims (para. 74).
The respondent argues the appeal should be dismissed. In his view, the sentencing judge committed clear legal errors justifying intervention on appeal. The respondent submits the sentencing judge failed to individualize his sentence given his mental health difficulties (R.F., at para. 106), unduly relied on the sentencing range in Tourville (para. 114), and failed to meaningfully engage with the sentencing circle recommendations (para. 122). He pleads that ss. 718.04 and 718.201 are not in conflict with Indigenous background principles stemming from Gladue (para. 58), and that the objectives of denunciation and deterrence can be achieved, depending on the circumstances, without sentencing Indigenous offenders to lengthy periods of incarceration (paras. 86-91).
Given the positions of the parties, I first outline the sentencing principles that bear on this case, in particular those expressed in ss. 718.04, 718.2(e) and 718.201, and consider the role of sentencing circles in giving effect to them. I then ask, in light of this understanding, whether the majority of the Court of Appeal was correct to intervene in this case.
V. Analysis
A. Objectives and Principles Governing Sentencing Generally
Sentencing, though generally within the discretion of the court (see Criminal Code, s. 718.3), is guided by objectives and principles prescribed by Parliament (see M. Vauclair, T. Desjardins and P. Lachance, Traité général de preuve et de procédure pénales 2026 (33rd ed. 2026), at para. 47.2).
First, Parliament identifies the objectives at which the sentence must be aimed. It directs that the fundamental purpose of criminal sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions (Criminal Code, s. 718; see R. v. J.W., 2025 SCC 16, at paras. 39-40). A just sanction serves one or more from among a list of sentencing objectives, which include: denouncing unlawful conduct (s. 718(a)); deterring the offender and others from committing offences (s. 718(b)); separating offenders from society where that is necessary (s. 718(c)); rehabilitation (s. 718(d)); reparation (s. 718(e)); and promoting a sense of responsibility in offenders (s. 718(f)).
Generally, it is within the discretion of a sentencing judge to decide how to consider these enumerated sentencing objectives, given the circumstances of each case (see R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 43; J.W., at para. 40). That said, for some offences, Parliament has introduced a relative importance to the objectives underlying a just sanction. Specifically, Parliament directs that “primary consideration” (“attention particulière”) must be given to the objectives of denouncing and deterring offences against children, justice system participants, and vulnerable persons (ss. 718.01 to 718.04).
Second, Parliament gives direction on selecting a sentence that will further these objectives through prescribed sentencing principles. The fundamental principle in determining the sentence is proportionality; the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (Criminal Code, s. 718.1; see Ipeelee, at para. 37; Friesen, at para. 30; Hills, at paras. 56-57). Whatever weight is accorded to the relevant sentencing objectives codified in s. 718, the sentence “must respect the fundamental principle of proportionality” (Nasogaluak, at para. 40 (emphasis in original); see also Ipeelee, at para. 37; J.W., at para. 42). The gravity of the offence will be measured by considering the features of the offence, including the physical or psychological harms caused by the offending act (see R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at paras. 58 and 70). An offender’s degree of responsibility, by contrast, will be informed by factors impacting the offender’s state of mind at the time of the offence, including aspects of the offender’s conduct or background that contribute to or attenuate the offender’s responsibility (see R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 79; Hills, at para. 58). Selecting a proportionate sentence that serves the sentencing objectives is guided by other “secondary” principles prescribed by Parliament, including the principle of parity and the principle of restraint (ss. 718.2(a) to (e); see J.W., at paras. 44-45).
The Criminal Code also includes sentencing principles explicitly calling for particular attention to the circumstances of Indigenous offenders and victims, which I turn now to consider in more detail.
B. Addressing the Overincarceration of Indigenous People (Section 718.2(e))
(1) Overincarceration of Indigenous People
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).
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.
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).
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.
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
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.
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).
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
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).
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).
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
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).
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.
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
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).
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).
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).
C. Addressing Violence Against Indigenous Women and Girls (Sections 718.04 and 718.201)
Having considered the sentencing principles relevant to Indigenous offenders, I turn now to consider the other equally important principles that address violence against Indigenous women and girls who are the victims of violence.
(1) Violence Against Indigenous Women and Girls
Indigenous women and girls in Canada face alarming and disproportionate rates of violence and abuse. In a 2022 study, 63 percent of Indigenous women surveyed reported having experienced physical or sexual violence in their lifetime, compared with 45 percent for non-Indigenous women (see Statistics Canada, Violent victimization and perceptions of safety: Experiences of First Nations, Métis and Inuit women in Canada (April 2022), at p. 5). The same study found that Indigenous women were much more likely to experience intimate partner violence in their lifetime, 44 percent, compared with non-Indigenous women, at 25 percent (p. 7). The unacceptably high rates of violence against Indigenous women and girls have been observed for decades. The Aboriginal Justice Inquiry reported in 1991 that Indigenous women were the “victims of racism, of sexism and of unconscionable levels of domestic violence” in Manitoba and that this violence had “reached epidemic proportions” (Public Inquiry into the Administration of Justice and Aboriginal People, Report of the Aboriginal Justice Inquiry of Manitoba, vol. 1, The Justice System and Aboriginal People (1991), at pp. 475 and 481) The Inquiry pointed to various causes of violence against Indigenous women including: the loss of women’s place in customary Indigenous society as a result of colonization, the resulting political and economic marginalization of Indigenous women, and the impact of residential schools on Indigenous women and families (pp. 476-81).
Renewed attention was brought to the issue of violence against Indigenous women and girls by the work of the National Inquiry into Missing and Murdered Indigenous Women and Girls (“MMIWG Inquiry”). The MMIWG Report sets out a number of calls for justice aimed at the criminal justice system, including calls to evaluate the impacts of Gladue and s. 718.2(e) on Indigenous women and girls and to consider violence against Indigenous women and girls as an aggravating factor at sentencing (vol. 1b, at p. 185). The calls for justice were informed by what the MMIWG Report identified as different “pathways”, or circumstances like social and economic marginalization, that make Indigenous women and girls particularly vulnerable to violence (vol. 1a, at pp. 111-16).
One particularly pernicious form of violence affecting women and girls, including Indigenous women and girls, is intimate partner violence. There were approximately 356 victims of intimate partner violence per 100,000 people in Canada in 2024, a statistic that had grown in the decade prior (Statistics Canada, “Trends in police-reported family violence and intimate partner violence in Canada, 2024”, in The Daily, October 28, 2025 (online), at pp. 1-2). The rate of intimate partner violence continues to be dramatically higher amongst women and girls (p. 2).
As Tulloch C.J.O. rightly noted for the Court of Appeal for Ontario in R. v. Greer, 2026 ONCA 222, “[i]ntimate partner violence is a grave and pervasive social harm whose seriousness ‘can hardly be overstated’” (para. 25, citing R. v. Lavallee, [1990] 1 S.C.R. 852, at p. 872). It can serve to “undermine independence, and generate lasting fear and emotional harm, sometimes escalating unpredictably” (Greer, at para. 27). This Court recently observed, in a similar vein, that “[i]ntimate partner violence not only causes physical or emotional harm, depending on the nature of the act, but also constitutes a fundamental breach of the trust intrinsic to the relationship, rendering it qualitatively different from violence between strangers” (Ahluwalia v. Ahluwalia, 2026 SCC 16, at para. 106).
While intimate partner violence has been historically overlooked, the law has begun evolving to treat it more seriously (Ahluwalia, at para. 108). As this Court recently observed, the “criminal law imposes strong responses to such violence, and legislative interventions by both federal and provincial governments across other areas of public and private law demonstrate a strong objection to it” (para. 112). For example, Parliament has enacted ss. 718.2(a)(ii), 718.201, and 718.04 to “strengthen the justice system’s response” to intimate partner violence and better protect victims (Greer, at para. 26; H. Parent and J. Desrosiers, Traité de droit criminel, t. III, La peine (4th ed. 2024), at p. 242). This Court also recently recognized a new tort of intimate partner violence in the private law context (Ahluwalia, at para. 5, per Kasirer J., and at para. 252, per Karakatsanis J.).
(2) Sections 718.04 and 718.201 as a Response to Violence Against Vulnerable Victims
In 2019, Parliament sought to address violence against vulnerable victims, and specifically Indigenous women and girls, through amendments that added ss. 718.04 and 718.201 to the Criminal Code (An Act to Amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, S.C. 2019, c. 25, ss. 292.1 and 293.1). The amendments were considered by Parliament as part of Bill C-75, which aimed to address intimate partner violence and “the overrepresentation of Indigenous peoples and marginalized Canadians in the criminal justice system”, among other criminal justice issues (House of Commons Debates, vol. 148, No. 300, 1st Sess., 42nd Parl., May 24, 2018, at pp. 19603-5 (Hon. J. Wilson-Raybould)).
Sections 718.04 and 718.201 were not included in Bill C-75 when it was first introduced. Rather, these provisions were only added during consideration of the bill at the Standing Senate Committee on Legal and Constitutional Affairs. The committee heard from many communities and stakeholders, including Justice Marion Buller, the Chief Commissioner of the MMIWG Inquiry. She drew the committee’s attention to the “high level of violence targeted at Indigenous women and girls [and] 2SLGBTQQIA individuals” (Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, No. 61, 1st Sess., 42nd Parl., May 8, 2019, at p. 61:48 (Hon. M. Buller)).
Justice Buller offered several suggested responses to that violence, including that, where “there is an Indigenous woman, girl or member of the 2SLGBTQQIA community who is a complainant, on sentencing that must be an aggravating factor in sentencing” and that denunciation and deterrence be a primary consideration in these cases (Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, May 8, 2019, at p. 61:49). In response to a question about the impact on Indigenous background principles relevant to Indigenous offenders, Justice Buller added that including the victim’s “indigeneity as an aggravating factor to address deterrence and denunciation doesn’t necessarily outweigh or negate the Gladue principles as they apply to the accused” (p. 61:55). Rather, her proposal was that sentencing in such circumstances would require balancing the circumstances of the offender, offence, the complainant, and community.
Senator Lilian Dyck, citing Justice Buller’s evidence, moved to amend Bill C-75 to add what would become ss. 718.04 and 718.201 (Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, No. 62, 1st Sess., 42nd Parl., May 16, 2019, at pp. 62:14-62:15 and 62:127). Senator Murray Sinclair,[2] speaking in support of the amendment, encouraged his fellow parliamentarians not “to be deterred from supporting this amendment merely because they think it contradicts the Gladue principles, because it doesn’t. Judges have been doing that balancing [since the introduction of s.] 718.2(e) . . . . This particular provision will give them other factors they will also have to take into account in doing that balancing test” (p. 62:111). The then Minister of Justice later expressed the government’s support for these amendments, which he characterized as “crafted with a view to the impact they would have on the incarceration rates of indigenous persons and persons who are vulnerable to being overrepresented in the criminal justice system” (House of Commons Debates, June 17, 2019, at p. 29244 (Hon. D. Lametti)). He characterized the amendment as responsive to the calls for justice in the MMIWG Report and this Court’s decision in R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579 (p. 29245).
The legislative history is therefore clear that these provisions were introduced with the goal of addressing violence against Indigenous women and girls and other vulnerable victims that has been overlooked for far too long (see R. v. Wood, 2022 MBCA 46, at paras. 32, 39 and 45). Given that ss. 718.201 and 718.04, despite specific language addressing Indigenous women and girls, apply broadly to both Indigenous and non-Indigenous victims, the purpose was clearly also to address violence against vulnerable victims more generally, particularly intimate partner violence. As Tulloch C.J.O. recognized in Greer, with the addition of ss. 718.201 and 718.04, Parliament has sought to “strengthen the justice system’s response” to intimate partner violence and better protect all victims of intimate partner violence (para. 26; see also Parent and Desrosiers, at p. 242). While the common law had already emphasized the need for deterrence and denunciation when sentencing offenders guilty of intimate partner violence (see R. v. Boucher (2004), 186 C.C.C. (3d) 479 (Ont. C.A.), at para. 27, citing R. v. Denkers (1994), 69 O.A.C. 391), the introduction of ss. 718.201 and 718.04 suggests that more needs to be done to protect vulnerable victims of violence including intimate partner violence. This goal was to be achieved by placing a greater emphasis on deterrence and denunciation and considering the vulnerability of Indigenous women and girls in crafting an appropriate sentence. At the same time, Parliament did not intend to displace s. 718.2(e), as it has been interpreted in this Court’s jurisprudence. Rather, parliamentarians acknowledged the need to continue addressing Indigenous overincarceration.
The dissent does not consider the clear evidence, outlined above, that Parliament was concerned with balancing the need to take violence against women and girls seriously against the need to address Indigenous overincarceration, and that legislators were particularly concerned with not displacing the principles stemming from Gladue and Ipeelee. These were not one off-comments from one legislator. The issue of overincarceration was raised in the Minister of Justice’s speech at second reading in the House of Commons; immediately preceding the vote in the Senate Committee that added ss. 718.04 and 718.201 to the bill; and again in the Minister’s speech voicing the government’s support for the amendments (see House of Commons Debates, May 24, 2018, at p. 19605 (Hon. J. Wilson-Raybould); Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, May 16, 2019, at p. 62:111 (Hon. M. Sinclair); House of Commons Debates, June 17, 2019, at p. 29244 (Hon. D. Lametti)). I agree with the dissent that this Court “must give effect to Parliament’s policy choices as reflected in provisions of the Criminal Code, not question their merit” (para. 229). Giving effect to Parliament’s true intent means grasping the complexities with which legislators were concerned. This requires responding to the need to better address violence against Indigenous women and girls alongside the continuing need to address Indigenous overincarceration.
While ss. 718.201 and 718.04 share this legislative history, they must each be interpreted separately based on their unique text, context and purpose (R. v. Basque, 2023 SCC 18, at para. 63, citing Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21). I therefore consider ss. 718.04 and 718.201 in turn.
(3) Section 718.04: Giving Primary Consideration to the Objectives of Deterrence and Denunciation
Section 718.04 is concerned with directing a sentencing judge in their consideration of sentencing objectives. It requires a sentencing judge to give “primary consideration” (“attention particulière”) to the objectives of denunciation and deterrence when the offence involves the abuse of a person who is vulnerable, including because they are an Indigenous woman or girl:
718.04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.
718.04 Le tribunal qui impose une peine pour une infraction qui constitue un mauvais traitement à l’égard d’une personne vulnérable en raison de sa situation personnelle, notamment en raison du fait qu’elle est une personne autochtone de sexe féminin, accorde une attention particulière aux objectifs de dénonciation et de dissuasion de l’agissement à l’origine de l’infraction.
In order to decide whether the provision applies, the sentencing judge must determine whether the offence involves “the abuse of a person who is vulnerable”. The scope of s. 718.04 is not limited to the abuse of Indigenous women and girls, but applies to the abuse of any victim who is vulnerable because of their particular circumstances. The vulnerability of victims has long been a relevant consideration in sentencing, and courts have identified personal circumstances such as youth or advanced age, physical or intellectual disability or spousal relationship with the accused, among others, as circumstances that engender vulnerability (C. C. Ruby, Sentencing (10th ed. 2020), at §§5.64-5.66, citing R. v. Major (1966), 48 C.R. 296 (Ont. C.A.), and R. v. Ingram and Grimsdale (1977), 35 C.C.C. (2d) 376 (Ont. C.A.); see also Parent and Desrosiers, at p. 240). Parliament expressly directs that Indigenous women or girls are vulnerable persons, the abuse of whom attracts the application of s. 718.04. This aligns with the well-documented and alarming tragedy that Indigenous women and girls are a group who face unacceptable and disproportionate levels of violence and abuse.
Where s. 718.04 applies, sentencing judges must understand what it means to “give primary consideration to the objectives of denunciation and deterrence”. As the language of s. 718.04 was patterned on preexisting provisions that require primary consideration to be given to these sentencing objectives in the case of offences against children (s. 718.01) and justice system participants (s. 718.02), the jurisprudence interpreting these provisions assists in understanding what s. 718.04 requires. Four principles in particular are worth noting.
First, primary consideration of deterrence and denunciation refers to their precedence over other sentencing objectives. In Friesen, this Court considered s. 718.01 and observed that the words “‘primary consideration’ . . . prescribe a relative ordering of sentencing objectives that is absent from the general list” of sentencing objectives in s. 718 (para. 102). As Kasirer J.A., as he then was, similarly observed in R. v. Rayo, 2018 QCCA 824, the use of “primary” in s. 718.01 [translation] “evokes an ordering of the objectives”, and a bilingual interpretation reveals that “the section conveys the idea that denunciation and deterrence should be given relative precedence in the discretionary balancing of objectives undertaken by the court” (paras. 103 and 108 (emphasis deleted)). Consistent with this judicial interpretation, the language of “primary consideration” (“attention particulière”) in s. 718.04 requires that a sentencing judge consider the sentencing objectives of deterrence and denunciation first and foremost in sentencing for offences that involve the abuse of vulnerable persons, including persons who are vulnerable because they are an Indigenous woman or girl. This is a mandatory direction. Sentencing judges do not have discretion to decline to apply s. 718.04 based on the circumstances of the case.
Second, denunciation and deterrence are centered on addressing the criminal conduct, rather than on addressing the offender’s separation from society or addressing the harm the specific offence caused to victims or the community per se, which are the concern of other sentencing objectives (s. 718(c) to (f); see R. v. Hiebert, 2024 MBCA 26, 95 C.R. (7th) 405, at paras. 17-18). Denunciation describes the communication of “society’s condemnation of the offender’s conduct” (R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 102; see also Ruby, at §1.20). Deterrence refers to imposing a sentence “for the purpose of discouraging the offender and others from engaging in criminal conduct” (R. v. B.W.P., 2006 SCC 27, [2006] 1 S.C.R. 941, at para. 2). By imposing a clear sanction that bears a real cost, the goal is to discourage similar criminal conduct from recurring (Ruby, at §1.24). By directing courts to give “primary consideration” (“attention particulière”) to these objectives of denunciation and deterrence, Parliament requires a sentencing judge not to lose sight of the corrosive nature of the relevant conduct to our society and the importance of eradicating it (see generally Friesen, at paras. 101-5; R. v. Pike, 2024 ONCA 608, 173 O.R. (3d) 241, at paras. 159-60). The abuse of a vulnerable person, including a vulnerable Indigenous woman or girl, is reprehensible conduct that courts must do more to eliminate and s. 718.04 ensures they do not lose sight of this fact.
Third, a sentencing judge must recall that giving denunciation and deterrence primary consideration “does not exclude consideration of other sentencing objectives” (R. v. Bertrand Marchand, 2023 SCC 26, at para. 28; see Friesen, at para. 104; see also Vauclair, Desjardins and Lachance, at para. 47.47). A sentencing judge can give weight to the other enumerated objectives as long as they do not give them “precedence or equivalency” (Bertrand Marchand, at para. 28, citing Friesen, at para. 104, and Rayo, at paras. 103 and 107-8). A sentencing judge must still weigh all the relevant sentencing objectives, including rehabilitation, even where deterrence and denunciation are owed primary consideration (see R. v. Ali, 2022 ONCA 736, 164 O.R. (3d) 81, at para. 28).
Fourth, the relative ordering of sentencing objectives contemplated by s. 718.04 does not dictate to a sentencing judge how deterrence and denunciation is to be achieved. Sentencing objectives are about the intended effect of the sentence itself. Deterrence and denunciation may be achieved through a broad array of sanctions other than imprisonment, including conditional sentence orders (see Proulx, at paras. 22 and 41) and other alternative sanctions made available in Indigenous communities (see, e.g., R. v. Taylor (1997), 163 Sask. R. 29 (C.A.), at paras. 87-88). How to achieve deterrence and denunciation is a fact specific determination.
Section 718.04 requires that sentencing judges craft fit sentences that give primary consideration to denunciation and deterrence, which may often require more severe sentences for both Indigenous and non-Indigenous offenders alike, and Friesen assists in understanding the meaning of s. 718.04. However, we should not unconditionally rely on Friesen to suggest courts must impose “more severe sanctions” and “harsher sentences” in every case where s. 718.04 applies, as suggested by the dissent (paras. 226-27). Paragraph 101 of Friesen must be read in context. In paragraph 100, the Court concluded that by increasing maximum sentences, Parliament had signaled a need for increased sentences and that, as a result, courts must generally impose higher sentences than before the legislative change. The same legislative amendments that added s. 718.01 to the Criminal Code also tripled the maximum sentences for sexual interference, invitation to sexual touching, and sexual exploitation (see Friesen, at para. 98; An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, S.C. 2005, c. 32, s. 24). It was in this context that this Court observed at para. 101 in Friesen that s. 718.01 “confirms” the need for more severe sanctions. This Court did not suggest that s. 718.01 alone required a reflexive increase in the severity of the penalty irrespective of the context.
Nor did Friesen equate denunciation and deterrence with incarceration. While this Court, at para. 103, noted that separation from society “can be the means to reinforce and give practical effect to deterrence and denunciation”, it did not state that separation from society is the only, or presumptive, means of achieving those objectives in every case. Similarly, R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, relied on by the dissent for the proposition that courts will have “very few options other than imprisonment” where denunciation and deterrence are emphasized (Rowe and Jamal JJ.’s reasons, at paras. 173, 228 and 253), did not involve an Indigenous offender and did not address the operation of s. 718.2(e). Where the offender is Indigenous, the sentencing judge must still determine, through the methodology required by s. 718.2(e), how those objectives can be achieved in a way that is meaningful for the offender, the victim, and the community.
This Court was careful to note in Friesen that “while s. 718.01 requires that deterrence and denunciation have priority, nonetheless, the sentencing judge retains discretion to accord significant weight to other factors (including rehabilitation and Gladue factors) in exercising discretion in arriving at a fit sentence, in accordance with the overall principle of proportionality” (para. 104, citing R. v. Bergeron, 2013 QCCA 7, at para. 37). Consequently, the requirement to give deterrence and denunciation provided by s. 718.04 similarly does not require reflexive increase in the severity of sentences, or a presumptive custodial sentence, without consideration of other factors.
(4) Section 718.201: Considering the Circumstances of Indigenous Women and Girls Who Are the Victims of Intimate Partner Violence
Unlike s. 718.04, which is directed at sentencing objectives, or the intended effect of the sentence, s. 718.201 speaks to the relevant considerations in selecting a just and appropriate sentence, the means through which these objectives are achieved. Section 718.201 provides that a judge sentencing an offender for abuse of their intimate partner must consider the increased vulnerability of women and girls, with particular attention to those who are Indigenous:
718.201 A court that imposes a sentence in respect of an offence that involved the abuse of an intimate partner shall consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims.
718.201 Le tribunal qui impose une peine pour une infraction qui constitue un mauvais traitement à l’égard d’un partenaire intime prend en considération la vulnérabilité accrue des victimes de sexe féminin, en accordant une attention particulière à la situation des victimes autochtones de sexe féminin.
Section 718.201 applies in any case involving a female victim of intimate partner violence (Greer, at para. 26). Whenever it applies, it requires the sentencing judge to consider the particular vulnerability of women to intimate partner violence, which will inform the entirety of the sentencing process for these offences. The sentencing judge must take judicial notice that intimate partner violence disproportionately affects women and is inherently a gendered form of harm (see Ahluwalia, at paras. 122-23), which bears on its gravity and wrongfulness. As this Court recently observed in a different context, “[b]ecause this conduct is gender-based, it reveals not just the violation of gender-neutral norms protecting physical and psychological integrity, but conduct that causes distinct harm because it violates aspects of the right to dignity, autonomy, and equality to which women are entitled in their intimate partnerships” (para. 123). As I explained above, this enactment was directed at addressing this unique and pernicious form of harm.
Section 718.201 directs the sentencing judge to inquire into the particular vulnerabilities of the specific victim in each case, mindful of this broader context of gendered harm. This includes considering the ways in which the victim may be particularly vulnerable by virtue of her own characteristics and experiences, such as her physical or mental health challenges or substance abuse challenges, her previous experiences with abuse or violence, and the absence of or isolation from a support system outside the relationship (see, e.g., R. v. M.S., 2025 BCCA 207, at para. 24). It also requires considering aspects of the relationship with the abuser that make her more vulnerable including financial dependence, dependence related to children, family or social ties, and ongoing physical proximity to the offender, particularly when in a remote or isolated community (see, e.g., R. v. Cunningham, 2023 ONCA 36, 166 O.R. (3d) 147, at paras. 27 and 34; R. v. A.D., 2024 ABCA 178, 438 C.C.C. (3d) 442, at para. 52; Wood, at para. 55). Finally, it requires considering the ways in which the specific offence intersected with her vulnerability, for example whether the abuse formed part of an ongoing pattern, was a manifestation of coercive control, or otherwise exploited the particular vulnerability of the woman in her intimate partnership (see Greer, at paras. 24 and 29; A.D., at para. 50).
Where the victim is an Indigenous woman or girl, s. 718.201 requires a sentencing judge to go further and pay “particular attention” to the intersectional vulnerabilities of Indigenous women and girls. It would be a mistake to set out a framework for s. 718.201 that does not extend particular consideration to Indigeneity. Just as this Court has said the same language of “particular attention” in s. 718.2(e) requires consideration of Indigenous difference, here too Parliament is directing a sentencing judge to consider the Indigenous context specifically with respect to Indigenous women and girls.
The language in s. 718.201 specifically referencing Indigenous women and girls, reflects recommendation 5.18 of the MMIWG Report, which called on the government to “consider violence against Indigenous women, girls, and 2SLGBTQQIA people as an aggravating factor at sentencing, and to amend the Criminal Code accordingly” (MMIWG Report, vol. 1b, at p. 185; see also House of Commons Debates, June 17, 2019, at p. 29245 (Hon. D. Lametti)). It also reflects this Court’s guidance on the need for criminal courts to reckon with the lived reality of Indigenous women and girls who are victims of crime. As Moldaver J. observed in Barton, “our criminal justice system and all participants within it should take reasonable steps to address systemic biases, prejudices, and stereotypes against Indigenous persons — and in particular Indigenous women and sex workers — head on” (para. 200). These concerns are only exacerbated in cases of intimate partner violence, which this Court has recently said the law must do more to combat (Ahluwalia, at paras. 112, 123-24 and 137-38).
In applying s. 718.201 in cases involving an Indigenous woman or girl who is a victim of intimate partner violence, the sentencing judge should bear in mind the following points.
First, it is important not to misunderstand the language in s. 718.201 as having transformed the Indigenous identity of a victim into an aggravating factor automatically pushing up the sentence (see J. Rudin, Indigenous People and the Criminal Justice System (2nd ed. 2022), vol. 7, at p. 163). Its language makes clear that s. 718.201 only applies to offences involving intimate partner abuse, not to every offence targeting an Indigenous woman or girl. Further, s. 718.201 does not use the language of an aggravating circumstance and is not included in the list of statutory aggravating circumstances found at s. 718.2(a). Intimate partner violence itself is, of course, already an aggravating factor in accordance with s. 718.2(a)(ii).
Second, the language of “particular attention”, like in s. 718.2(e), suggests the sentencing judge must consider the systemic and background factors unique to Indigenous women and girls as victims (Rudin, at p. 165), just as s. 718.2(e) was meant to assist the sentencing judge in understanding the role of systemic factors unique to Indigenous offenders in contributing to their overincarceration (see Ipeelee, at para. 67). It recognizes that Indigenous victims of crime, not just offenders, have suffered from colonization and their attendant vulnerabilities must be considered by the sentencing judge (see R. v. L.P., 2020 QCCA 1239, 393 C.C.C. (3d) 1, at para. 97; R. v. Gordon, 2021 QCCQ 12998, at para. 37; see also Barton, at para. 201).
Third, given that Indigenous women and girls will each have unique lived experiences, it would be inappropriate to expect that s. 718.201 will uniformly increase sentences in every case, even if it may have that sentence lengthening effect in many cases. In this sense, s. 718.201 again mirrors the “particular attention to the circumstances” required in the application of s. 718.2(e). Just as there is no automatic sentencing “discount” on the basis of an offender being Indigenous (Ipeelee, at para. 75; see also Boyd, at para. 15; Berkland, at para. 110); there is no automatic sentence increase on the basis of a victim being an Indigenous woman, even if that may often be the result in practice. Rather, paying “particular attention to the circumstances” of Indigenous women and girls requires a contextual review of the factors particularly relevant to the experiences of Indigenous women and girls in assessing the vulnerability of the individual victim in each specific case (see by analogy Ipeelee, at para. 75).
In paying particular attention to the victimization of Indigenous women and girls, s. 718.201 requires that a sentencing judge be guided by the systemic and background factors that have exposed Indigenous women and girls to disproportionate violence, including intimate partner violence (see Ahluwalia, at para. 124). Just as the systemic and background factors recognized in Gladue guide the application of s. 718.2(e) when the offender is Indigenous (paras. 67-69; see also Ipeelee, at para. 60), related factors underlying the vulnerability of Indigenous women and girls to crime, including the non-exhaustive list I enumerate here, must guide the sentencing judge. These factors under s. 718.201 have effects including increasing the gravity of the offence, and justify the need for a more severe sentence for offenders, including Indigenous and non-Indigenous offenders, pursuant to the principle of proportionality.
First, Indigenous women and girls can be particularly vulnerable to violence due to particular socio-economic marginalization they face by virtue of their gender and Indigeneity. This social and economic marginalization may be experienced in different ways, such as substance abuse, poverty, or inadequate access to social services like housing on reserve or counselling (MMIWG Report, vol. 1a, at p. 442). These experiences with factors such as addictions issues or poverty are relevant to an Indigenous woman or girl’s vulnerability under s. 718.201 (see, e.g., R. v. Barton, 2021 ABQB 603, 74 C.R. (7th) 175, at paras. 70-73, aff’d 2024 ABCA 351; R. v. J.G., 2025 ABKB 576, at paras. 53-55; R. v. Saulis, 2025 NBPC 3, at para. 63). Indigenous women and girls have also been socially marginalized and left vulnerable by the intergenerational legacy of colonial policies such as the Indian Act, R.S.C. 1985, c. I-5, residential schools, or community dislocation (see L.P., at para. 97; R. v. Plante, 2026 QCCQ 566, at paras. 44-45; R. v. S.A., 2023 QCCQ 973, at para. 121; R. v. B.J., 2023 QCCQ 2993, at para. 83; R. v. Iqalukjuaq, 2020 NUCJ 15, 64 C.R. (7th) 430, at para. 35; R. Pelletier and K. Nerland, “Indian Status and the Crisis of Missing and Murdered Women”, in T. Isaac, ed., Key Developments in Aboriginal Law (2019), 13, at pp. 14-15 and 23-27).
Second, an Indigenous woman or girl can be more vulnerable to intimate partner violence by virtue of her community’s remoteness and her sharing of her community with the offender (see L.P., at para. 99; R. v. Wood, 2021 MBQB 4, at para. 48; R. v. Arreak, 2026 NUCJ 8, at paras. 64-68; C.A. reasons, at para. 241, per Scanlan J.A., dissenting; see generally Iqalukjuaq, at para. 32). The MMIWG Report explains that many Indigenous women and girls in remote or northern parts of Canada face increased barriers to reporting intimate partner violence, including fears associated with sharing a remote Indigenous community with their abuser (vol. 1a, at pp. 482-83), or were otherwise left vulnerable to intimate partner violence due to factors such as a shortage of housing on-reserve or in Inuit communities (p. 537). In such circumstances, the sentencing judge must consider the impacts of having a sentence served in the community on the victim.
Third, Indigenous women and girls are made more vulnerable to violence by reason of their alienation from the justice system. An Indigenous woman’s or girl’s experiences with, or intergenerational trauma associated with, institutions such as the child welfare system or the criminal justice system play a role “in creating conditions that make violence possible” (MMIWG Report, vol. 1a, at p. 115). This is because Indigenous women and girls are less likely to feel safe reaching out to police or engaging with the justice system given their historical discriminatory treatment within that system, even when they are in danger (pp. 121 and 633). This problem is particularly acute in cases of intimate partner violence (p. 633), where women and girls may fear they themselves may be criminalized when they report violence (p. 634).
As with the factors from Gladue and Ipeelee, the sentencing judge must take judicial notice of vulnerabilities of Indigenous women and girls to violence generally, and must also consider relevant evidence adduced by the parties showing how those vulnerabilities manifest in the particular victim and offence (see Gladue, at para. 83). In practice, victim impact statements may provide one important avenue through which the sentencing judge may be made aware of relevant considerations (Criminal Code, s. 722). As I will discuss below, sentencing circles are another means through which the perspective and background of the victim can be explored. The sentencing judge must, however, be sensitive to the alienation of Indigenous women and girls from the Crown and the criminal justice system. Programs that allow victims to express their views in a culturally sensitive and meaningful way during the sentencing process are to be encouraged.
The particular vulnerability of Indigenous women and girls to violence, understood in reference to these and other factors, colours the whole sentencing exercise. It may colour the application of statutory aggravating factors such as intimate partner abuse (s. 718.2(a)(ii)), abuse of a position of trust or authority (s. 718.2(a)(iii)), the impact on victims considering their personal circumstances (s. 718.2(a)(iii.1)), or the offence having been motivated by prejudice (s. 718.2(a)(i)). It may also increase the moral blameworthiness of the offender, because it is more morally blameworthy to abuse a victim who is particularly vulnerable and affected by the violence (Friesen, at para. 90). Further, it may increase the gravity of the offence, given the abuse of vulnerable victims is generally more serious.
By operation of s. 718.201, then, when the sentencing judge is assessing the gravity of the offence and the moral blameworthiness of the offender, they must take into account the overrepresentation of Indigenous women and girls as victims of crime, including intimate partner abuse. Section 718.201 assists the sentencing judge in fully grasping the gravity of intimate partner violence against Indigenous women and girls, something that the criminal justice system has failed to appreciate to date. The effect of this consideration will often mean that a sentence will be more severe than if this important context had been overlooked by the sentencing judge, for both Indigenous and non-Indigenous offenders.
D. Sentencing Circles
Having considered the sentencing principles that specifically mention Indigenous offenders and victims of crime, I turn now to sentencing circles. As I will explain, this mechanism, which was used in sentencing the respondent, can assist sentencing judges in applying sentencing principles that benefit from a deeper appreciation of the Indigenous perspective.
(1) Sentencing Circles Assist in Applying Principles Specific to Indigenous Offenders and Victims
Sentencing circles are an important tool in helping judges to properly apply the principles specific to Indigenous offenders and victims of crime. Not only can they provide information that helps tailor appropriate sentencing procedures and sanctions on the basis of an offender’s Indigeneity (Rudin, at p. 288), but they can also provide a forum for braiding Indigenous community perspectives, including distinctive cultures and legal traditions, into the sentencing process (see R. v. Morin (1995), 134 Sask. R. 120 (C.A.), at para. 27). Importantly, sentencing circle recommendations can often relay whether the community is committed to taking care of, and reintegrating, an offender into the community on terms that preserve both the offender’s and community’s safety and well-being (see, e.g., R. v. Moses (1992), 11 C.R. (4th) 357 (Y. Terr. Ct.)).
In a sentencing circle, participants such as the offender, counsel and the sentencing judge are often joined by participants such as Elders, the victim or their proxy, and members of the community who know the offender (J. Nadler, “Sentencing Circles: A Way To Envision Justice as a Community Responsibility”, in County of Carleton Law Association, 30th Annual Criminal Law Conference (2018), at p. 4). Each person in the sentencing circle is then typically given the opportunity to speak about the offence, its impact on the community and victim, the needs of the offender and of the victim, and any constraints on the community’s participation in the rehabilitation of the offender (H. J. Benevides, “R. v. Moses and Sentencing Circles: A Case Comment” (1994), 3 Dal. J. Leg. Stud. 241, at pp. 241-42).
Sentencing circles serve at least two important purposes relevant to the task of the sentencing judge. First, they provide the sentencing judge with information relevant to selecting a just and appropriate sentence for an Indigenous offender (see Taylor, at para. 70; R. v. E.O., 2019 YKCA 9, 374 C.C.C. (3d) 338, at para. 60). Sentencing circles are an effective mechanism for gauging whether there is support for an offender within the Indigenous community, including from the victim of the offence or their family (R. v. Cappo, 2005 SKCA 134, 269 Sask. R. 311, at para. 10; R. v. M.S., 2025 ONSC 2688, at para. 65); contextualizing the harmfulness of the offence on an Indigenous community or affected persons (R. v. Pauchay, 2009 SKPC 35, 333 Sask. R. 167, at para. 48; R. v. MacKendrick, 2007 BCPC 35, at paras. 14-17); and presenting a sentencing judge with options for culturally informed correctional plans available in the offender’s community (R. v. Lavergne, 2018 ONCJ 901, 52 C.R. (7th) 166, at paras. 61-70; R. v. Van Bibber, 2010 YKTC 49, 98 M.V.R. (5th) 33, at paras. 31-45). In bringing out such information, sentencing circles can help the sentencing judge in ascertaining the gravity of the offence, degree of responsibility of the offender and more generally in applying the relevant sentencing principles (see E.O., at para. 60).
Second, sentencing circles can provide a culturally accessible platform for Indigenous victims and communities to share their perspectives on an appropriate sentence (see Morin, at para. 27; R. v. L. (B.), 2002 ABCA 44, 2 Alta. L.R. (4th) 32, at para. 23; R. v. McNabb, 2014 MBPC 10, 302 Man. R. (2d) 138, at paras. 13-16) and for the court to understand the Indigenous community’s historical, cultural, and legal perspective on sentencing (see Taylor, at paras. 70 and 87; R. v. S.A., 2016 ONSC 5355, at paras. 21 and 25). As observed by Rowe J.A., as he then was, “the value of Sentencing Circles appropriately used is clear”, given that circles “move responsibility and authority back to community members, especially the victim and the offender. Having a say in a decision that will affect your life is the essence of democracy” (R. v. J. (J.), 2004 NLCA 81, 192 C.C.C. (3d) 30, at paras. 82-83, citing J.-L. Dutil, “Curbing Crime in Aboriginal Communities”, in Canadian Institute for the Administration of Justice, Justice to Order: Adjustment to Changing Demands and Co-ordination Issues in the Justice System in Canada Conference (1998), at p. 433).
Ultimately, however, whether and how to incorporate a sentencing circle as part of the process is a discretionary decision of the sentencing judge (see E.O., at para. 59; L. (B.), at para. 30; J. (J.), at para. 34). Important factors to consider will include the availability of an appropriate sentencing circle program, and the willingness of affected persons and Indigenous community members to participate in the process.
(2) When a Sentencing Circle Is Held, a Failure to Meaningfully Consider That Process Can Amount to a Failure to Apply Section 718.04, 718.2(e) or 718.201
The parties to this appeal disagree about how a sentencing judge must engage with sentencing circles when, as in this case, they have taken place. The Crown argues that all that is required is for the sentencing judge to consider the sentencing circle as “one source of information” that may or may not impact the sentence (A.R.F., at para. 8). It states that sentencing judges are not required to explain how the circle informed their deliberation on sentence (paras. 22 and 27). The respondent takes the position that while the sentencing judge need not accept the recommendations of the circle, it is an error in principle to ignore the community perspective shared through that circle in imposing a sentence (para. 133, citing Jacko). He argues that a sentencing judge must not only explain why the sentencing circle’s recommendations are being accepted or rejected, but also acknowledge the teachings and information sharing that took place and treat this seriously (para. 137).
A sentencing judge’s failure to meaningfully consider the sentencing circle’s recommendations is not a freestanding error in principle, but can amount to a failure to properly conduct the second part of the s. 718.2(e) analysis. Further, whether or not an Indigenous victim participates in a sentencing circle, failure to properly engage with their circumstances can amount to a failure to confront their increased vulnerability under s. 718.04 or 718.201. This reflects that the lessons of the sentencing circle are more than just a source of factual information relevant to a fit sentence, but are key to understanding the Indigenous perspective on sentencing. Section 718.2(e) requires the sentencing judge to consider the perspective of the Indigenous offender’s community (see Wells, at para. 39; see also B. A. Ralston, The Gladue Principles: A Guide to the Jurisprudence (2021), at p. 197). Sentencing circles are therefore grounded in s. 718.2(e) as a vehicle for understanding what sanctions or procedures may be appropriate in the circumstances based on the Indigenous perspective (see Gladue, at paras. 66, 70 and 73-74; Ipeelee, at para. 74).
Section 718.2(e) requires that the sentencing judge actually consider the information and perspectives gathered through the sentencing circle when determining the “types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular [Indigenous] heritage or connection” (Gladue, at para. 66; Ipeelee, at para. 72). A sentencing judge must demonstrate that they have followed the direction of this Court in Ipeelee to “abandon the presumption that all offenders and all communities share the same values when it comes to sentencing” and openly consider Indigenous values and perspectives (para. 74). This also includes the perspective of the Indigenous victim.
The Crown’s view of sentencing circles as one relevant “source of information” among many is incomplete. As I have explained, while sentencing circles can be an important source of information relevant to a sentence, they can also offer a different perspective on how to put all of the relevant sentencing considerations together and arrive at a fit and appropriate sentence that will achieve the relevant sentencing objectives. This is why it is not enough to simply advert to the sentencing circle process as if it were one piece of evidence, or reduce it to its recommendation on the length or propriety of incarceration. It is not just part of the contextual landscape relevant to sentencing the offender, it is also a legal lens through which that landscape can be viewed differently and better understood.
A sentencing judge ultimately retains discretion in deciding whether to follow a sentencing circle’s recommendations, and consideration of Indigenous law and perspectives under s. 718.2(e) cannot displace that authority. I agree with the Crown that there is no “presumption” that the circle’s recommendation will be accepted, as the sentencing judge remains the decision-maker responsible for sentencing the offender (A.R.F., at para. 9). This is consistent with the historical treatment of s. 718.2(e): the provision “prescribes a method that must be followed when determining a fit sentence for Indigenous offenders”, without demanding any particular result for Indigenous offenders (S. (R.), at para. 34, citing Ipeelee, at paras. 59 and 84-86). Contrary to the dissent’s suggestion, this approach is not “contrary to Parliament’s direction that sentencing judges have the ultimate decision-making authority at sentencing” (para. 279). As I have stated explicitly above, engaging with the sentencing circle does not require the sentencing judge to reach any particular outcome.
The sentencing circle recommendations maintain value even if the sentencing judge is ultimately unable to accept them. As will be discussed below, for example, this was an inappropriate case for a conditional sentence order given the severity of the offence and the vulnerability of the Indigenous victim, notwithstanding the sentencing circle’s recommendation for one. Despite that, the sentencing circle recommendations still contain community perspectives that may impact the length of a custodial sentence or otherwise inform the imposition of other sentencing orders.
What is required under s. 718.2(e) is that a sentencing judge reasonably engage with the perspectives expressed in the sentencing circle in crafting a fit and appropriate sentence on the facts of each case. At a minimum, this requires the sentencing judge to demonstrate through their reasons that they understood the sentencing circle as more than a mere source of information relevant to a sentence, but rather as a distinct perspective on sentencing. It requires them to convey their agreement or departure from perspectives expressed in this circle. And it requires them to relate their engagement with the sentencing circle to the sentence they ultimately impose. These are the hallmarks of meaningful engagement. As appellate courts have found, failure to engage with the sentencing circle process can amount to an error in principle justifying appellate intervention (Jacko, at para. 81; E.O., at para. 61).
Sentencing judges must take seriously the direction given by Parliament and by this Court in Gladue and in Ipeelee to incorporate Indigenous perspectives. When a sentencing circle takes place, this means treating that circle as a bridge between the criminal justice system and Indigenous models of justice, not an exercise in performative tokenism, which will only erode trust, set back reconciliation and exacerbate the challenges Indigenous people face with the criminal justice system (see I.F., Akwesasne Justice Department, at paras. 13 and 29-30). The voice of the Indigenous victim must also be treated seriously. Treating sentencing circles seriously serves the reconciliatory purpose underlying s. 718.2(e), the denunciation and deterrence of the disproportionate violence Indigenous women and girls face underlying ss. 718.04 and 718.201, and the ultimate purpose of criminal sentencing, which is to maintain a just, peaceful and safe society (s. 718).
E. Integrating the Applicable Sentencing Provisions
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] 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.
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.
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.
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.
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.
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).
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)).
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
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.
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.
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.
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).
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), 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.
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
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).
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.
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).
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.
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
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).
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).
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).
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).
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.
VI. Application to This Case
Sentencing decisions are owed deference. Appellate courts must only intervene where the sentencing judge has committed an error in principle that impacted the sentence or where the sentence is demonstrably unfit (see Lacasse, at paras. 44 and 46; R. v. Sheppard, 2025 SCC 29, at para. 39).
While I recognize that the sentencing judge did not have the benefit of the guidance above, the Court of Appeal was correct to say that she fell into reviewable error in sentencing the respondent.
A. The Sentencing Judge Erred in Principle
The Crown argues that the majority at the Court of Appeal erred in its treatment of the respondent’s mental health, suggesting that the majority “overstepped when it made a strong, mitigating finding of fact” on this question (A.F., at para. 134). According to the Crown, the sentencing judge adequately considered the respondent’s mental health challenges in sentencing him. The respondent maintains that the sentencing judge grossly minimized the role of his mental health challenges in the relevant offences, and that his mental health challenges are an important factor lessening his moral culpability (R.F., at para. 112). He submits that the sentencing judge only presided over the case after his mental health was restored, and consequently was in no better position than the Court of Appeal to assess its impact (para. 113).
As I will explain, I agree with the Court of Appeal that the sentencing judge’s treatment of the respondent’s mental health, particularly in light of his Indigenous background and the insights from the sentencing circle, reflects an error in principle demanding appellate intervention. An offender’s mental disorder can be relevant to the fit and appropriate sentence. It is not sufficient, however, to simply refer to and recognize that the offender lives with mental illness. The sentencing judge must also consider how that fact should specifically affect the appropriate sentence given the facts of each case (see R. v. Ellis, 2013 ONCA 739, 303 C.C.C. (3d) 228, at paras. 116-17). The sentencing judge’s failure to conduct this inquiry amounted to a failure to consider a relevant factor, and therefore constituted an error in principle (see Friesen, at para. 26).
There are many ways in which a mental disorder may be relevant to sentencing (see generally R. D. Schneider, “Sentencing Mentally Disordered Offenders”, in D. Cole and J. Roberts, eds., Sentencing in Canada: Essays in Law, Policy, and Practice (2020), 273, at pp. 276-78). As observed by Martin J. in Bertrand Marchand, an offender’s mental health disorder can attenuate their degree of responsibility and offenders with mental illnesses can be negatively affected by imprisonment (para. 128; see also R. v. Williams, 2019 BCCA 295, at para. 74; Azevedo v. R., 2021 QCCA 1688, at para. 10). The inquiry in such cases is whether the offender’s mental illness “caused or contributed” to the criminal conduct (R. v. Badhesa, 2019 BCCA 70, at para. 42; R. v. Nystrom, 2023 BCCA 232, at para. 21; see also Bertrand Marchand, at para. 128; Parent and Desrosiers, at pp. 149-50). Such connections between an offender’s mental illness and the offence may reduce the offender’s moral blameworthiness and bear on the proportionality analysis (see R. v. Perry, 2025 ONCA 241, at para. 27; Badhesa, at para. 42; R. v. Butler, 2019 NLCA 21, 4 C.A.N.L.R. 294, at para. 28; R. v. Okemow, 2017 MBCA 59, 353 C.C.C. (3d) 141, at para. 72; Ruby, at §5.316). Serious mental illnesses, such as schizophrenia, can “significantly mitigate a sentence, even if the evidence does not disclose that the mental illness was the direct cause of the offence or that it was carried out during the period of delusions”, as long as the mental illness contributed to the offence’s commission (R. v. Ayorech, 2012 ABCA 82, 522 A.R. 306, at para. 10).
Where the offender suffered from a mental illness at the time of the offence, the sentencing judge must consider not just how this affects the moral blameworthiness of the offender, but also how this affects the various sentencing options that will best serve the relevant sentencing objectives. As explained in R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, “where offenders commit offences while they are out of touch with reality due to mental illness, specific deterrence is meaningless to them”, while “general deterrence is unlikely to be achieved either since people with mental illnesses that contribute to the commission of a crime will not usually be deterred by the punishment of others” (para. 38; see also R. v. Robinson (1974), 19 C.C.C. (2d) 193 (Ont. C.A.), at p. 197; Bertrand Marchand, at para. 158). It makes sense in such cases to focus more attention on addressing the mental health issue at the root of the criminal conduct, since this may be the best way to prevent the recurrence of unlawful behaviour and bring harmony to the offender and their community (see Bertrand Marchand, at para. 128, citing R. v. Lundrigan, 2012 NLCA 43, 324 Nfld. & P.E.I.R. 270, at paras. 20-21; Ellis, at para. 117). Particularly in circumstances where an offender’s mental illness will be negatively affected by imprisonment, the sentencing judge has to carefully consider that in selecting a sentence that will effectively serve the relevant objectives (Ruby, at §§5.325 and 5.332). Sentencing a mentally ill offender to a lengthy term of imprisonment that could further degrade their mental state provides little hope of preventing the cycle of reoffending and of sparing the community from further criminal conduct when the offender is eventually released.
In this case, the sentencing judge recognized that the respondent “lives with significant mental illness” and that he was trying to treat his mental health issues (A.R., at pp. 24 and 27). This mere acknowledgement of mental illness was insufficient because the sentencing judge failed to specifically relate the respondent’s mental illness to his moral blameworthiness for the relevant offences other than noting that his mental health was “not in a good place” at the time of the breach offences specifically (pp. 27-28) and that this tended to lower his moral culpability (p. 31). It is not clear from her reasons that she considered his mental illness to have lowered his moral blameworthiness for the aggravated assault at all, given she only noted his mental health at the time of the breach offences.
There is no reasonable conclusion on this record other than the respondent was seriously struggling with his mental health not just at the time of the breaches, but also at the time of the aggravated assault. The Crown’s suggestion that there is no evidence in the record to this effect (A.F., at paras. 131-34), overlooks the significant volume of circumstantial evidence that supports this inference. The record will be sufficient for the assessment of an offender’s mental illness, and the role of that illness in the commission of an offence, where: there is cogent evidence that the offender suffered from either a mental illness or cognitive limitation at the time of the offence; and there is enough evidence regarding the nature and severity of the mental health condition to permit an “informed decision” regarding the relationship, if any, between those circumstances and the offence (Okemow, at para. 73). Sufficient evidence can come from pre-sentence reports, medical records, and reports from healthcare professionals and social workers (see R. v. Fabbro, 2021 ONCA 494, at para. 26). Further, an offender need only prove a disputed mitigating factor on a balance of probabilities, and not beyond a reasonable doubt (Criminal Code, s. 724(3)(d) and (e); R. v. Tom, 2024 BCCA 239, at para. 40).
The issue of the respondent’s mental health was squarely before the sentencing judge, and the record was sufficient to enable the sentencing judge to inquire into its impact on the aggravated assault offence. The respondent testified at the sentencing hearing that his mental health was not stable and he was not taking his medication (A.R., at pp. 173 and 178-79). His mental state was detailed in assessment and counsel raised the role of mental illness in the respondent’s past offending (pp. 216-17). The record documents the respondent’s serious, long-term mental health challenges, and that at the time of the aggravated assault, he was not taking the treatment needed to manage his schizoaffective disorder (pp. 354-57). He was found unfit to stand trial on the index offences and took weeks of resuming his medication before a medical expert confirmed he was fit to stand trial (R.R., at pp. 17 and 30). The lack of notations in his chart during his two short periods in custody in July 2021 are easily explained by the fact that he received no mental health evaluation during this time. Reading the record as a whole, at the time of the aggravated assault, he was in a mental health crisis, as the majority below rightly found (para. 162). The sentencing judge should have linked the mental health factor to the respondent’s moral blameworthiness on the aggravated assault offence, but failed to do so.
Furthermore, the sentencing judge did not consider the relevance of the respondent’s ongoing mental health challenges to achieving the applicable sentencing objectives, including but not limited to deterrence and denunciation. In particular, her reasons disclose no consideration of how a lengthy custodial sentence of imprisonment could aggravate the respondent’s mental illness and thereby lessen prospects for rehabilitation and specific deterrence. Nor do the reasons consider that, given these mental health challenges, rehabilitation should have taken on a greater importance. The sentencing judge herself recognized that the respondent’s criminality and danger to society was directly tied to his mental illness and substance abuse issues, but did not relate that important conclusion to the sentence she imposed. The sentencing judge found that the respondent, “when clean and treating his mental health, is an employable, productive person, and when using, he is a danger to society” (A.R., at pp. 30-31). This finding should have led to a serious assessment of the impact of various sentencing options on the respondent’s mental health.
Though the sentencing judge was required to give primary consideration to deterrence and denunciation, recall that other sentencing objectives remain relevant to sentencing. Therefore, the fact that s. 718.04 applies in this case did not absolve the sentencing judge of the responsibility to consider the effect of the mental health factor on the relative importance of rehabilitation as a sentencing objective. In this case where mental health was an important driver of the criminal conduct at issue, the sentencing judge was required to give it specific consideration as it related to the respondent’s moral blameworthiness for the aggravated assault and the sentence that would best achieve the relevant sentencing objectives. Having not done so, I conclude that the sentencing judge erred in principle.
This error was further exacerbated by the failure to meaningfully engage with the sentencing circle process and the views expressed there about the role of mental health in the commission of this offence and a culturally sensitive way forward.
The sentencing judge listed the sentencing circle report among the various materials she had before her and that she had reviewed, including journal articles and correspondence (A.R., at p. 11). Beyond that passing mention, the sentencing circle process does not feature at all in her reasons, and never in relation to the mental health dimension of this case. At one point she mentions that the respondent’s “community doesn’t recommend any further jail time” (p. 28), which could be read as a reference to the sentencing circle recommendation, but it is unclear what role this observation had in her analysis. The reasons move on to other considerations without engaging with the view of the community or explaining how it informs the sentence.
While the Crown is right that the reasons make clear why the precise sentence recommended by the sentencing circle was not available to the respondent, this does not cure the error. As I have noted above, sentencing circles are more than just their ultimate recommendation on disposition. They provide information and perspectives on the appropriate sentence that must be considered even if the ultimate recommendation is not accepted. The record shows that the sentencing circle process in this case provided many relevant insights on this sentence. Among other things, it identified the perspective of the sentencing circle that the respondent’s mental health was central to the offences and the way forward, that he was genuinely remorseful and committed to addressing his issues, that he finds comfort in smudging and desires to engage in his community’s sweat lodge, and that further incarceration of the respondent would be futile (A.R., at pp. 365-73). These insights were clearly relevant to understanding how mental health impacted his offending and how he would respond to various sentencing options, even if the ultimate recommendation was not accepted by the sentencing judge. They relate directly to the distinct “needs, experiences, and perspectives of [Indigenous] people or [Indigenous] communities” (Gladue, at para. 73; see also Ipeelee, at para. 74; Friesen, at para. 92), which sentencing judges must consider under s. 718.2(e).
The sentencing circle’s recommendations make clear that the respondent’s community viewed a more holistic approach aimed at the root causes of offending as key to promoting the safety of the Indigenous community and responding to the intimate partner violence in this case. The sentencing circle recommendations reflected a commitment to support the respondent in a culturally informed manner, and in a manner reflecting the impact of the respondent’s mental illness. It would be an error to minimize the entire process to a binary choice between incarceration or non-incarceration. As Ruby notes, “[b]oth the length and place of confinement may also be determined with a view to ensuring that the offender can take advantage of appropriate treatment facilities” (§5.334; see also §§5.335-5.338 and 5.352).
The dissent suggests that “the sentencing judge addressed each of the factors . . . [found] in the sentencing circle’s report”, including the respondent’s mental illness and remorse (para. 300). I strongly disagree that it would be sufficient to merely identify the same issues raised by a sentencing circle, but not engage with the sentencing circle’s perspective on those issues. The purpose of a sentencing circle is not limited to issue spotting, but rather presents an Indigenous community’s perspective on how to best address those issues and craft a sentence that effectively achieves the objectives of sentencing. As this Court recognized in Ipeelee and Gladue, Indigenous perspectives on “current concepts of sentencing” may be “fundamentally different” to those taken by non-Indigenous people (Ipeelee, at para. 74; Gladue, at para. 73). The rejection of the conditional sentence alone cannot, without considering the perspectives advanced in the sentencing circle, be sufficient to show that the sentencing judge appropriately considered Millbrook First Nation’s perspective, including on the nexus between the mental health challenges and both the offence and the sentencing options.
Further, there is no merit to the Crown’s suggestion that the respect for confidentiality of the sentencing circle process justifies the lack of engagement in the sentencing judge’s reasons (transcript, day 1, at p. 8). A detailed report from the sentencing circle appears unredacted in the Crown’s public record to this appeal (A.R., at pp. 365-73). Furthermore, judges have shown themselves capable of engaging with sentencing circle processes in other decisions without issue. If there were sensitive information that needed to be protected, which is not at all clear in this case, the sentencing judge did not have to avoid talking about the sentencing circle altogether, but could have ordered appropriate limits on court openness (Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75). Non-confidential outcomes of the sentencing circle were before the sentencing judge to engage with and there were other means available to preserve confidential information relevant to the sentence had that been necessary.
In my view, the sentencing judge failed to engage with the sentencing circle process in her reasons, which exacerbated her failure to properly consider the mental health factors in this case.
B. These Errors Impacted the Sentence
Even where an error of law or in principle is shown, an appellate court should only intervene if the error impacted the sentence (Lacasse, at paras. 42-44 and 46; Sheppard, at para. 39). The error in principle need not have led to a sentence that is demonstrably unfit or falls outside the range of sentences imposed in the past (Friesen, at para. 27). Rather, it is enough that it appears that the error had an impact on sentence (Lacasse, at para. 44; R. v. Agin, 2018 BCCA 133, 361 C.C.C. (3d) 258, at para. 52).
I am satisfied, like the majority of the Court of Appeal, that the sentencing judge would have arrived at a shorter term of imprisonment had she properly considered the respondent’s significant mental health factors, particularly when viewed in light of the sentencing circle’s recommendations. The sentencing judge did not simply put inadequate weight on the mental health factor, but failed to consider how a lengthy term of imprisonment could aggravate his mental illness and lessen his prospects for rehabilitation and specific deterrence. The respondent’s mental health factors, including his untreated schizoaffective disorder at the time of the offence, attenuated his moral blameworthiness and militated in favour of a shorter sentence.
I disagree with the dissent’s view that the Court of Appeal’s analysis amounts to an impermissible reweighing of the factors relevant to sentence (para. 176). Where, as here, the sentencing judge fails to consider relevant factors, or exercises their discretion to assign weight to sentencing factors unreasonably, and where that failure had an impact on the sentence, appellate intervention is unquestionably warranted (Friesen, at para. 26).
C. The Court of Appeal Arrived at a Just and Appropriate Sentence
In light of the reviewable errors of the sentencing judge, the Court of Appeal varied the sentence on aggravated assault from five years to three years less remand credit, with two years of probation imposed after release. While the Crown’s argument on this appeal was focused on whether there was a reviewable error in the sentence that justified appellate intervention, for the reasons I have rejected above, it also suggested that the Court of Appeal’s decision “fails to give practical effect to Parliament’s direction in ss. 718.04 and 718.201 and perpetuates a discounting of the lives of, and harms to, Indigenous women” (A.F., at para. 4). I disagree. The sentence imposed by the Court of Appeal is consistent with the sensitive application of these sentencing provisions. There is no basis to interfere with that sentence on this further appeal.
(1) Gravity of the Offence and Degree of Responsibility of the Offender
As I noted above, there is no question that the offence was “horrendous” (C.A. reasons, at para. 10). The assault, which was captured on video, shows a brutal attack wherein the victim’s head was repeatedly punched, kicked and smashed against the sidewalk, leaving her with significant injuries. Further, this was an act of intimate partner violence, which I have said is a particularly pernicious form of violence that causes broader societal harm. There is also no controversy that the victim is a Mi’kmaw woman from Sipekne’katik First Nation. The record contains very little about the victim’s perspective or the intersection between factors related to her Indigeneity and the offence, because she did not provide a statement to police, file an impact statement or participate in the sentencing circle. I take note that some Indigenous people, in particular Indigenous women and girls, feel alienated from the criminal justice system.
The respondent’s Indigenous Background Report details certain facts suggesting the victim was particularly vulnerable to intimate partner violence. It says the victim has her own struggles with substance abuse, one of the factors identified by the MMIWG Report as contributing to the vulnerability of Indigenous women and girls (MMIWG Report, vol. 1a, at p. 442; see also J.G., at paras. 53-55; Saulis, at para. 63). As discussed above, such factors under s. 718.201 can effectively increase the gravity of the offence. Further, courts can take judicial notice of the systemic and background factors affecting Indigenous people in Canada, including those specific to Indigenous women and girls (Parranto, at para. 80, citing Ipeelee, at paras. 59-60; Gladue, at para. 83). Viewed in the social context I have detailed above, wherein Indigenous women and girls suffer from disproportionate violence that has historically been overlooked, the fact that the victim was an Indigenous woman highlights the need to treat this offence very seriously.
The Court of Appeal then undertook a nuanced assessment of the moral blameworthiness of the respondent. It considered the interaction of his severe mental illness and substance abuse challenges, which in an Indigenous individual must be viewed through the lens of colonization and intergenerational trauma (see R. v. Daniels, 2023 MBCA 86, at para. 14). The respondent’s connection to his language and cultural practices were directly severed by his family’s history with the Shubenacadie Residential School (A.R., at pp. 344-45). It is well known residential schools also had the effect of creating lasting trauma for survivors and their children and grandchildren, including creating mental health challenges for students “through the pervasive assumptions and assertions [the residential school] made about the inferiority” of Indigenous people (TRC Final Report, at p. 206). This is explicit in the respondent’s Indigenous Background Report, which details a difficult childhood surrounded by violence, mental illness and substance abuse challenges. The sentencing circle similarly traced the respondent’s offending to his “toxic social environment and poor socio-economic conditions that continue to impact the lives of Aboriginal people since the time of colonization” including poverty, substance abuse, racism, involvement with family and children’s services and a loss of cultural identity (A.R., at p. 369). These factors attenuate his moral blameworthiness (Wells, at para. 38; Kreko, at para. 24).
More specifically, the fact that the respondent lives with a significant mental illness and was, as I described above, in a profoundly dysregulated state at the time of the aggravated assault attenuates his moral blameworthiness. As I explained above, there is no doubt on this record, which includes extensive assessment of the respondent’s mental health near the time of the offence, that the respondent’s completely unmedicated schizoaffective disorder contributed to the commission of the horrific violence. While mental illness struggles of this nature are not a justification or excuse for violence, they mitigate moral blameworthiness where they contributed to the offending (Bertrand Marchand, at para. 128). The sentencing circle emphasized the role of mental illness in the offending behaviour.
This is not to ignore, however, that there are countervailing factors that tend to increase the respondent’s moral blameworthiness. The sentencing judge was right to point out the respondent did not have full insight into his offending, and has a long history of serious violence. Further, the victim was a vulnerable Indigenous woman who was his intimate partner. When weighed together, the principle of proportionality requires a significant sentence for this horrific and “vicious” (C.A. reasons, at para. 178) assault despite the respondent’s moral blameworthiness being attenuated by the unique systemic factors in his case.
(2) Sentencing Objectives
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.
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).
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).
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)).
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).
(3) Selecting the Appropriate Sanction
In this case, a significant three-year term of imprisonment, less remand credit, was proportionate and appropriate to achieve the identified sentencing objectives.
A sentence of imprisonment was required in this case. First, given the severity and violence of the assault against his Indigenous intimate partner, even with the factors attenuating the respondent’s moral blameworthiness, a sentence of imprisonment was required to denounce this specific offence. While denouncing and deterring an offence does not always require a sentence of imprisonment (Proulx, at para. 41), there may be certain circumstances “in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct” (para. 106). This is such a case, especially given the vulnerability of the victim. Second, the finding that the respondent was a danger to society effectively excluded the community-based disposition the sentencing circle proposed (Criminal Code, s. 742.1; Sharma, at para. 13; Proulx, at para. 46).
At the same time, the sentencing circle brought important attention to the futility of an extended period of incarceration to actually address the pattern of violence in this case and protect the community. Crucially, it identified a culturally sensitive treatment plan crafted with a view towards addressing the respondent’s mental health and substance abuse issues. As noted above, the perspectives put forward by the sentencing circle offer one view, or another lens, on how to put those principles and objectives together in selecting a just and appropriate sanction. The view expressed by the sentencing circle echoes perspectives in the literature that sentencing offenders to lengthy terms of imprisonment can perpetuate the dual challenges of overincarceration and violence against Indigenous women and girls. That view needed to be taken seriously in sentencing.
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 as part of a probation order. In my view, the concerns expressed in the sentencing circle that the respondent would only be rehabilitated through community-based programming are addressed by this shorter period of incarceration that will see the respondent access that programming sooner. This allows his community to play a role in addressing his offending and protecting women and girls, a form of braiding the Indigenous perspective into the sentencing and treatment of the respondent. The sentence is severe enough to denounce and deter a form of violence that has been overlooked for far too long, while also offering a real chance to address the long-term pattern of offending in this case.
VII. Disposition
For these reasons, the majority of the Court of Appeal was correct to intervene and to vary the respondent’s sentence from five years to three years, less remand credit, to ensure the respondent’s sentence properly reflected the sentencing circle process and the role of his mental disorder in the offending.
I would dismiss the appeal.
The reasons of Wagner C.J. and Côté, Rowe and Jamal JJ. were delivered by
Rowe and Jamal JJ. —
TABLE OF CONTENTS
Paragraph
I. Introduction
[170]
II. Facts
[183]
III. Decisions Under Appeal
[189]
A. Provincial Court of Nova Scotia (Driscoll Prov. Ct. J.)
[189]
B. Nova Scotia Court of Appeal, 2024 NSCA 59, 439 C.C.C. (3d) 283 (Bourgeois and Derrick JJ.A., Scanlan J.A. Dissenting)
[196]
IV. Issues
[199]
V. The Standard of Review for Sentencing Decisions
[201]
VI. The Legal Framework for Sentencing Decisions
[205]
A. The Purpose and Fundamental Principle of Sentencing
[206]
B. The Objectives of Sentencing
[208]
(1) Denunciation
[210]
(2) Retribution
[211]
(3) Deterrence
[212]
(4) Separation From Society
[213]
(5) Rehabilitation
[214]
(6) Providing Reparations for Harm Done and Promoting Responsibility
[215]
C. The Provisions at Issue: Sections 718.04, 718.201, and 718.2(e)
[216]
(1) Legislative History of Sections 718.04 and 718.201
[219]
(2) Section 718.04: Abuse of Vulnerable Persons
[224]
(3) Section 718.201: Abuse of Intimate Partners — Vulnerability of Female Intimate Partners
[230]
(4) Section 718.2(e): Consideration of All Available Sanctions, With Particular Attention to the Circumstances of Indigenous Offenders
[233]
(5) Framework for Applying Sections 718.04, 718.201, and 718.2(e)
[241]
(a) Stage One: The Offence and the Victim
[244]
(b) Stage Two: The Offender
[250]
(c) Stage Three: Selecting an Appropriate Sanction
[252]
(d) Conclusion on the Interaction of Sections 718.04, 718.201, and 718.2(e)
[255]
D. Mental Health and Sentencing
[259]
E. Sentencing Circles
[264]
(1) Two Functions of Sentencing Circles
[265]
(2) General Principles Guiding the Use of Sentencing Circles
[268]
(3) A Failure to Have Regard to a Sentencing Circle’s Report and Recommendations May Constitute an Error of Law Under Section 718.2(e) but Cannot Constitute an Error of Law Under Section 718.04 or 718.201
[273]
VII. Application
[280]
A. The Sentencing Judge Properly Considered the Offence and the Victim
[283]
B. The Sentencing Judge Properly Considered the Offender
[286]
(1) The Sentencing Judge Properly Considered Mr. Cope’s Indigenous Sentencing Factors
[286]
(2) The Sentencing Judge Properly Considered Other Relevant Factors Regarding Mr. Cope
[287]
(3) The Sentencing Judge Properly Considered Mr. Cope’s Mental Health
[288]
C. The Sentencing Judge Imposed a Fit Sentence
[293]
(1) The Sentencing Judge Did Not Err in Determining That Imprisonment Was the Appropriate Sanction
[293]
(2) The Sentencing Judge Appropriately Considered the Sentencing Circle as It Related to Step Two of Gladue
[298]
(3) The Sentence Was Proportionate and Reflected the Relevant Sentencing Objectives
[305]
VIII. Disposition
[308]
Joint Dissenting Reasons — Rowe and Jamal JJ. (Wagner C.J. and Côté J. concurring)
I. Introduction
The respondent, Harry Arthur Cope, an Indigenous man, assaulted his common law partner, an Indigenous woman, so viciously that he later said he had “almost beat her to death” (A.R., at p. 360). Mr. Cope’s assault on his intimate partner is part of a broader and ongoing epidemic of violence against Indigenous women in Canada, who are victims of gender-based violence at a significantly disproportionate rate compared to non-Indigenous women (Statistics Canada, Gender differences in experiences of violence and unwanted sexual behaviour in Canada, 2025 (March 2026); Statistics Canada, Violent victimization and perceptions of safety: Experiences of First Nations, Métis and Inuit women in Canada (April 2022)).
Parliament responded to this crisis of violence by enacting ss. 718.04 and 718.201 of the Criminal Code, R.S.C. 1985, c. C-46. These provisions require sentencing judges to give primary consideration to denunciation and deterrence for offences involving abuse of vulnerable victims, including Indigenous women and female intimate partners (s. 718.04), and to consider the vulnerability of those victims (s. 718.201). This appeal requires the Court to clarify how to apply these provisions when sentencing an Indigenous offender in accordance with s. 718.2(e) and this Court’s decision in R. v. Gladue, [1999] 1 S.C.R. 688.
Parliament enacted ss. 718.04 and 718.201 to address the reality that sentences did not appropriately reflect the severity of violence against vulnerable victims, including Indigenous women and female intimate partners, and to signal that this abuse is grave and morally blameworthy conduct that must be more severely denounced and deterred. Courts must give effect to these legislative directives. As a result, ss. 718.04 and 718.201 will generally result in harsher sentences for such abuse.
For Indigenous offenders, the Gladue framework under s. 718.2(e) operates alongside Parliament’s clear direction in ss. 718.04 and 718.201. Sentencing judges must assess whether an Indigenous offender’s Indigenous sentencing factors reduce their moral blameworthiness and whether alternatives to incarceration are appropriate.[3] A sentencing circle, if held, may inform the Gladue analysis. At the same time, ss. 718.04 and 718.201 will generally require harsher sentences even if s. 718.2(e) applies. Parliament’s decision under s. 718.04 to prioritize denunciation and deterrence leaves sentencing judges with “very few options other than imprisonment” (R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 6).
In sentencing any offender, the sentencing judge’s task is to impose a fit sentence, one that protects society and is proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentencing judge considering ss. 718.04, 718.201, and 718.2(e) should apply a three-stage framework. At the first stage, the sentencing judge should consider the offence and the victim. At the second stage, the sentencing judge should consider the offender and their personal circumstances, including factors bearing on their moral culpability. At the third and final stage, the sentencing judge should impose a sentence that is proportionate and advances the relevant sentencing objectives considering the circumstances of the offence, the victim, and the offender.
In this case, the sentencing judge properly weighed all the relevant factors under ss. 718.04, 718.201, and 718.2(e). She considered the severity of Mr. Cope’s attack on his vulnerable Indigenous intimate partner, his violent criminal record, and the priority of public safety. She had regard to Mr. Cope’s Indigenous sentencing factors, history of addiction, and mental health challenges, and noted that, but for these considerations, his sentence would have been one year longer. She rejected the sentencing circle’s recommendation of a community-based sanction because she found Mr. Cope to pose a danger to society. The resulting five-year custodial sentence duly considered Mr. Cope’s Indigenous sentencing factors and mental health challenges and was proportionate to his high moral blameworthiness and the gravity of his serious and violent offence against his female Indigenous intimate partner.
Even though the sentencing judge accounted for all the relevant considerations, a majority of the Nova Scotia Court of Appeal intervened and reduced the sentence by two years. In our view, it erred in doing so. The majority ignored this Court’s repeated direction that sentencing decisions attract significant appellate deference (Lacasse, at paras. 41 and 48-49; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 25-26; and R. v. Sheppard, 2025 SCC 29, at paras. 38-39). It simply reweighed the relevant considerations to impose a more lenient sentence, one that did not reflect denunciation, deterrence, the victim’s vulnerability, or the sentencing judge’s conclusion that Mr. Cope poses a continuing danger to society.
A majority of this Court would similarly reweigh the evidence of Mr. Cope’s mental health challenges and the sentencing circle report to uphold the substituted sentence. We respectfully disagree with its approach in three key respects.
First, we disagree with the majority’s proposed sentencing framework. It fails to appropriately reflect Parliament’s direction to sentencing judges under ss. 718.04 and 718.201 to prioritize denunciation and deterrence, and to generally impose harsher sentences for the abuse of vulnerable victims, including by giving particular attention to the circumstances of Indigenous women and girls. Those provisions apply even when the Gladue framework under s. 718.2(e) is engaged.
Second, we disagree with the majority that the sentencing judge did not give adequate weight to the effect of Mr. Cope’s mental illness on his moral blameworthiness and the impact of a carceral sentence. At trial, Mr. Cope’s counsel never argued that Mr. Cope assaulted the victim as a result of his mental illness. The sentencing judge accordingly made no finding of fact that Mr. Cope’s mental illness caused or contributed to the assault, nor does the evidence justify such a finding. We therefore disagree with the majority in making such a finding of fact on appeal, in the absence of any submissions at first instance or the necessary detailed and specific evidence on this point before the sentencing judge.
Third, we disagree with the majority that a sentencing judge errs in principle by failing to engage with and, in some cases, to implement a sentencing circle’s report or recommendations. A sentencing judge’s obligation is to impose a sentence that complies with the Criminal Code. Although it is a best practice for a sentencing judge’s reasons to address a sentencing circle’s report and recommendations, this is not a legal obligation, and cannot in itself give rise to a reversible legal error.
The bottom line is this: Mr. Cope was intoxicated when he assaulted the victim. The parties proceeded before the sentencing judge based on an agreed statement of facts, and Mr. Cope did not allege that his mental illness had caused or contributed to the assault. On appeal, Mr. Cope’s mental illness and his Indigenous sentencing factors have resulted in reducing the sentence imposed at trial from five years to three years of imprisonment, even though the sentencing judge ordinarily would have imposed a sentence of six years.
We disagree with the majority’s appellate intervention. It applies provisions intended to protect Indigenous women and girls in a way that effectively cuts Mr. Cope’s sentence in half. In doing so, it fails to give effect to Parliament’s clear direction to courts to protect Indigenous women and girls who are victims of intimate partner violence, and it does not prioritize denunciation and deterrence in sentencing their abusers. Regrettably, it does the opposite. We would accordingly allow the appeal and restore the sentence imposed by the sentencing judge.
II. Facts
On June 27, 2021, Mr. Cope assaulted his common law partner. He repeatedly threw her to the ground, kicked her in the head and ribs, and punched her in the face. He also repeatedly smashed her face into a sidewalk and kicked her in the head as she lay motionless on the ground. A witness heard the victim’s head hitting the sidewalk numerous times. Mr. Cope’s prolonged and brutal assault was captured by a nearby surveillance video, which was filed in evidence. Mr. Cope was intoxicated at the time.
A passerby, who had seen Mr. Cope go “at [the victim] as hard as he could”, called 9-1-1 (A.R., at p. 129). Police later found the victim lying on the ground with serious injuries to her face and covered in blood. She suffered severe injuries to her face, eyes, and body, requiring extensive medical treatment and plastic surgery.
Mr. Cope fled the scene and was verbally combative and uncooperative when the police arrested him. He admitted that he “smashed [the victim] in the face”, and that she hit him, so he hit her back (A.R., at p. 126).
After his arrest, Mr. Cope was released on the condition that he not contact the victim. He soon breached this condition by texting her. He was detained and released again, this time on stricter conditions. He was arrested again when police found him in her home. He was then remanded and kept in custody.
Mr. Cope pleaded guilty to aggravated assault and breach of the no-contact orders. Prior to sentencing, he requested a sentencing circle with his Indigenous community, to which the sentencing judge agreed. Mr. Cope, the Crown, and the sentencing judge participated in the sentencing circle; the victim did not. The sentencing circle does not appear to have watched the video of Mr. Cope’s assault on the victim.
The sentencing circle’s nine-page report provided background on sentencing circles, summarized Mr. Cope’s statements at the circle, excerpted a list of his Indigenous sentencing factors from an Indigenous sentencing report, and included several sentencing recommendations. The sentencing circle recommended foremost that Mr. Cope not be incarcerated because it would not “help [Mr. Cope] at this time” and instead proposed a community-based sentence (A.R., at p. 369). Its other recommendations were premised on Mr. Cope remaining in the community. The sentencing circle report did not address — directly or indirectly — denunciation or deterrence, the nature and extent of the serious injuries that Mr. Cope had inflicted on the victim, Mr. Cope’s significant criminal record for violent offences, or the protection of society.
III. Decisions Under Appeal
A. Provincial Court of Nova Scotia (Driscoll Prov. Ct. J.)
The sentencing proceeded based on an agreed statement of facts. The Crown sought a sentence of up to six years’ imprisonment. Mr. Cope sought a two-year conditional sentence order, accounting for his time spent in remand custody, and orders permitting him access to substance abuse treatment and supportive housing. The maximum sentence for aggravated assault is 14 years’ imprisonment (Criminal Code, s. 268(2)).
The sentencing judge noted her obligations under ss. 718.04 and 718.201 to give primary consideration to denunciation and deterrence for offences involving abuse of vulnerable victims, including Indigenous women and intimate partners, and to consider those victims’ vulnerability. She also emphasized her duty to apply s. 718.2(e) and the guiding principles regarding the sentencing of Indigenous offenders set out in Gladue and R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433.
The sentencing judge confirmed that she had considered the sentencing circle’s recommendations and an Indigenous sentencing report. She acknowledged that Mr. Cope, as an Indigenous person, had suffered because of colonization, intergenerational trauma, and racism. She also noted his significant mental illness, for which he had previously been hospitalized, and that after his release he failed to follow a community mental health plan and relapsed into substance abuse. She also took note of the personal traumatic events from which Mr. Cope has suffered.
The sentencing judge reviewed Mr. Cope’s criminal record, which spanned 16 years and included convictions for violence, weapons offences, and breaches of court orders. In one incident, Mr. Cope threatened two people with a rifle and shot at their vehicle while they were inside it. In another, he stomped with both feet on an unconscious victim’s head and chest, causing the victim to suffer a brain bleed and broken ribs. Mr. Cope had also participated in an armed robbery of a gas station.
As aggravating factors, the sentencing judge emphasized that the victim is Indigenous and vulnerable due to her circumstances, including her struggles with addiction and the loss of her child. The assault was also more serious and aggravating because she was Mr. Cope’s intimate partner. This also aggravated Mr. Cope’s breaches of the no-contact orders, although the sentencing judge noted that his mental health was poor at that time. Mr. Cope had also not taken full responsibility for the assault and made excuses for it. The sentencing judge recognized that Mr. Cope’s Indigenous community did not recommend jail time.
As mitigating factors, the sentencing judge noted that Mr. Cope had accepted some responsibility, expressed remorse, and was receiving treatment for his mental health issues. She also recognized his complex mental health and addiction challenges, his strong support network, and the proposed program of support.
The sentencing judge concluded that Mr. Cope is employable and productive when sober and treating his mental health but poses a danger to society when using drugs. She found that a community-based sentence would endanger society. She referred to the sentencing ranges in R. v. Tourville, 2011 ONSC 1677, for Indigenous offenders convicted of aggravated assault, while noting that she was not bound by them. She concluded that, given Mr. Cope’s criminal record, six years would otherwise be an appropriate sentence for aggravated assault on an Indigenous woman. Even so, given Mr. Cope’s Indigenous sentencing factors and mental health and major addiction issues, she reduced the sentence by one year. She therefore imposed a sentence of five years’ imprisonment.
B. Nova Scotia Court of Appeal, 2024 NSCA 59, 439 C.C.C. (3d) 283 (Bourgeois and Derrick JJ.A., Scanlan J.A. Dissenting)
A majority of the Court of Appeal allowed Mr. Cope’s appeal and reduced his sentence to three years’ incarceration followed by two years’ probation. It held that the sentencing judge erred in principle by failing to give sufficient weight to Mr. Cope’s mental illness and drug abuse and their connection to his Indigenous sentencing factors, the principle of restraint, and restorative justice. Regarding ss. 718.04, 718.201, and 718.2(e), the sentencing judge was required to reflect both the victim’s vulnerability as an Indigenous woman and Mr. Cope’s Indigenous sentencing factors, without marginalizing restraint and rehabilitation. For the majority, the sentence was unreasonable and disproportionate.
By contrast, the dissenting justice concluded that the majority had identified no error in principle in the sentencing judge’s decision and had instead simply reweighed the relevant factors to substitute its own decision. In the dissenting justice’s view, the sentencing judge appropriately considered Mr. Cope’s mental health and addiction issues and the Gladue principles in determining that he had reduced moral culpability. She also considered alternatives to incarceration but was not satisfied that Mr. Cope could be released safely into the community. The majority’s substituted sentence failed to give effect to ss. 718.04 and 718.201.
Neither the majority nor the dissenting judge found any reviewable error in the sentencing judge’s treatment of the sentencing circle’s report and recommendations. The majority inferred from the sentencing judge’s reasons that she had rejected those recommendations because of her significant concerns that Mr. Cope would not comply with the conditions of a community-based sentence.
IV. Issues
This appeal raises two issues. First, how should courts approach sentencing when ss. 718.04, 718.201, and 718.2(e) of the Criminal Code apply? Second, did the Court of Appeal misapply the deferential standard of review for sentencing decisions?
To address these issues, we proceed in five parts. First, we outline the standard of appellate review for sentencing decisions. Second, we review the Criminal Code’s sentencing framework, including ss. 718.04, 718.201, and 718.2(e), and explain how a sentencing judge should sentence an offender when these provisions are engaged simultaneously. Third, we address the relevance of mental health in sentencing, and fourth, the principles regarding the role of sentencing circles and their recommendations. Finally, we apply the relevant sentencing principles to this case and explain why the sentencing judge made no reviewable error justifying appellate intervention.
V. The Standard of Review for Sentencing Decisions
Sentencing decisions are discretionary and attract considerable appellate deference. Appellate deference is justified because of the role and experience of sentencing judges and their advantageous positions relative to appeal courts. Sentencing judges hear the evidence and submissions first-hand and often have front-line experience and knowledge of the relevant community. Deference also helps prevent unnecessary delay and the misallocation of judicial resources (Sheppard, at para. 38; Lacasse, at para. 48; Friesen, at para. 25).
An appellate court may only vary a sentence if (1) it is demonstrably unfit, or (2) the judge made an error in principle that impacted the sentence (Friesen, at para. 26; Lacasse, at para. 11; see Hon. M. Rowe and M. Collins, “Appellate review: Criminal law” (2020), 39:3 Adv. J. 24, at p. 26).
A sentence is demonstrably unfit only if it is an unreasonable departure from the principle of proportionality (Lacasse, at para. 53; R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at para. 30).
Errors of principle include an error of law, a failure to consider a relevant factor, the erroneous consideration of an aggravating or mitigating factor, or the unreasonable weighing or balancing of factors (Friesen, at para. 26). An error in principle is not established merely because an appellate court would have weighed the relevant sentencing factors differently. As this Court has stated, “[t]o suggest that a trial judge commits an error in principle because in an appellate court’s opinion the trial judge gave too much weight to one relevant factor or not enough weight to another is to abandon deference altogether” (Lacasse, at para. 49, quoting R. v. McKnight (1999), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 35; see also R. v. Shropshire, [1995] 4 S.C.R. 227; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206). The boundary between a permissible difference in the weight assigned to a factor and an error of principle is drawn by the standard of reasonableness (Lacasse, at para. 49, quoting McKnight, at para. 35; see also Nasogaluak, at para. 46; Friesen, at para. 26). In addition, an error in principle warrants appellate intervention only if the appellant shows that the error impacted the sentence (Lacasse, at para. 44).
VI. The Legal Framework for Sentencing Decisions
We next summarize the sentencing regime in Part XXIII of the Criminal Code governing how sentencing judges are to exercise sentencing discretion.
A. The Purpose and Fundamental Principle of Sentencing
Section 718 provides that the fundamental purpose of sentencing is “to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society”.
Section 718.1 provides that the fundamental principle of sentencing is that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”.
B. The Objectives of Sentencing
The fundamental purpose of sentencing is achieved by imposing “just sanctions” reflecting at least one objective set out in s. 718(a) to (f) and previously recognized by this Court: denunciation, retribution, general and specific deterrence, separation of offenders, rehabilitation, reparation, and the promotion of a sense of responsibility in the offender and acknowledgment of the harm caused to the victim or the community (see M. (C.A.), at paras. 77 and 79; R. v. J.W., 2025 SCC 16, at para. 40; C. C. Ruby, Sentencing (10th ed. 2020), at §1.15).
Sentencing judges determine the weight and importance to be given to each of these objectives (M. (C.A.), at para. 82), subject to Parliament’s direction on how sentencing judges must prioritize the objectives in certain cases (Friesen, at para. 104; see also R. v. Hills, 2023 SCC 2, [2023] 1 S.C.R. 6, at para. 140).
(1) Denunciation
Denunciation requires a sentence to communicate society’s condemnation of the offender’s conduct. A denunciatory sentence is “a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law” (M. (C.A.), at para. 81; see also Lacasse, at para. 5; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 47).
(2) Retribution
Retribution reflects the principle that an appropriate punishment “properly reflects the moral culpability of the offender”; it requires the imposition of “a just and appropriate punishment, and nothing more” (M. (C.A.), at paras. 79-80 (emphasis in original)). It provides “an essential conceptual link” between the offender’s moral blameworthiness and the punishment imposed (paras. 79 and 81).
(3) Deterrence
Deterrence aims to discourage the offender and others from engaging in criminal conduct. It has two forms. Specific deterrence is aimed at the offender. It may overlap with rehabilitation and the offender’s reintegration into society where those objectives can prevent the offender from reoffending, but it may also call for separating the offender from society, usually through incarceration (R. v. B.W.P., 2006 SCC 27, [2006] 1 S.C.R. 941, at paras. 2 and 39-40). General deterrence seeks to discourage others from committing similar offences by setting an example through the offender’s punishment (paras. 2 and 40). It “will always serve to increase the penalty or make it harsher” (para. 36).
(4) Separation From Society
The objective of separating offenders from society recognizes that protecting the public may require physically preventing the offender from reoffending in the community, typically through incarceration (Ruby, at §1.53; M. Manning and P. Sankoff, Manning, Mewett & Sankoff: Criminal Law (5th ed. 2015), at ¶1.155). The circumstances of the offence and the offender may make separation appropriate. For example, an increased risk of reoffending against vulnerable groups justifies a greater emphasis on separation (Friesen, at para. 123).
(5) Rehabilitation
Rehabilitation seeks to reintegrate offenders into society (R. v. Bissonnette, 2022 SCC 23, [2022] 1 S.C.R. 597, at para. 48). It is based on the belief that every offender can reform themselves (paras. 48 and 141), and is a fundamental moral value of Canadian society (Lacasse, at para. 4).
(6) Providing Reparations for Harm Done and Promoting Responsibility
The objective of providing reparations for harm to the victim and community reflects the idea that an offender should return the victim and society to the position they were in before the offence, to the extent possible (Ruby, at §1.69; E. Winocur, D. Robitaille and M. Borooah, Sentencing: Principles and Practice (2nd ed. 2024), vol. 12, at p. 10). This may be achieved by restitution, which, together with the objectives of rehabilitation, promoting a sense of responsibility in an offender, and acknowledging the harm caused to the victim and community, reflects the concept of restorative justice (Proulx, at paras. 98 and 112; R. v. Quinlan (1999), 133 C.C.C. (3d) 501 (N.L.C.A.), at para. 37).
C. The Provisions at Issue: Sections 718.04, 718.201, and 718.2(e)
Through ss. 718.04 and 718.201, Parliament responded to the widespread problem of abuse of vulnerable victims, and in particular of Indigenous women and intimate partners, and to the tragic reality that sentences have not adequately reflected the severity of the violence against such persons. We respectfully disagree with the majority’s approach to these provisions, which does not sufficiently reflect that the unmistakable momentum of these provisions is generally toward harsher sentences.
When the offender is Indigenous, including where ss. 718.04 and 718.201 are engaged, sentencing judges must apply the Gladue framework under s. 718.2(e) to determine whether the offender’s moral blameworthiness is reduced and whether a non-carceral sanction is appropriate. Although this analysis may affect the sentence, ss. 718.04 and 718.201 will still require a sanction that denounces, deters, and reflects Parliament’s clear direction that violence against vulnerable victims is especially deserving of punishment.
Sections 718.04, 718.201, and 718.2(e) serve distinct purposes. Sections 718.04 and 718.201 are victim-focused: they direct sentencing judges to address the harm inflicted on the victim. Section 718.2(e) is offender-focused: it considers the circumstances of the offender and promotes alternatives to imprisonment by reflecting the principle of restraint.
(1) Legislative History of Sections 718.04 and 718.201
Parliament enacted ss. 718.04 and 718.201 in response to the crisis of intimate partner violence and the disproportionate victimization of Indigenous women.
The Truth and Reconciliation Commission of Canada (“TRC”), which released its final report in 2015, noted that Indigenous women reported being victims of violent crime nearly three times as often as non-Indigenous women (Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (2015), at p. 225). The TRC called for an inquiry into Canada’s missing and murdered Indigenous women and girls, which the federal government then established.
In 2019, the final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls concluded that the criminal justice system had failed to hold offenders sufficiently accountable for violence against Indigenous women and girls (Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls (2019), vol. 1a, at pp. 696-97 and 717; see also pp. 627-31). In homicide cases between 2009 and 2021, perpetrators received an average of three years less jail time when the victim was an Indigenous woman or girl (Statistics Canada, Court outcomes in homicides of Indigenous women and girls, 2009 to 2021 (October 2023)). The Inquiry called on the federal government to change the law to redress this imbalance of accountability (Reclaiming Power and Place: Executive Summary of the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls (2019), at pp. 69 and 71, calls for justice 5.2, 5.3, 5.17 and 5.18; see also pp. 63-64, calls for justice 1.5 and 1.9).
The Inquiry’s Chief Commissioner then testified before the Senate and urged Parliament to impose harsher penalties for criminal offences against Indigenous women, especially those involving intimate partner violence (Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, No. 61, 1st Sess., 42nd Parl., May 8 and 9, 2019; see J. Rudin, Indigenous People and the Criminal Justice System (2nd ed. 2022), vol. 7, at p. 163).
In 2019, in response to the Inquiry, Parliament enacted ss. 718.04 and 718.201 of the Criminal Code. These provisions sought to “strengthen the criminal law’s response to intimate partner violence as well as violence against Indigenous women and girls” (Department of Justice Canada, Government of Canada announces Criminal Code reforms to modernize the criminal justice system and reduce delays, June 21, 2019 (online); House of Commons Debates, vol. 148, No. 435, 1st Sess., 42nd Parl., June 17, 2019, at p. 29245 (Hon. David Lametti); Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, May 8 and 9, 2019; Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, No. 62, 1st Sess., 42 Parl., May 16, 2019; R. v. A.D., 2024 ABCA 178, 438 C.C.C. (3d) 442, at para. 29).
(2) Section 718.04: Abuse of Vulnerable Persons
Section 718.04 directs sentencing judges to give primary consideration to denunciation and deterrence for offences involving the abuse of a person who is vulnerable because of their personal circumstances, including because they are Indigenous and female. This provision governs the weight sentencing judges may assign to the statutory sentencing objectives. As this Court explained in Friesen in interpreting the analogous s. 718.01, where Parliament prioritizes denunciation and deterrence for the abuse of persons under the age of 18, “the sentencing judge’s discretion is . . . limited, such that it is no longer open to the judge to elevate other sentencing objectives to an equal or higher priority” (para. 104). A sentencing judge must therefore give less weight to other sentencing objectives, such as rehabilitation, than to denunciation and deterrence (see R. v. Rayo, 2018 QCCA 824, at para. 108).
Section 718.04 also signals the heightened gravity of the targeted offences. By prioritizing denunciation, Parliament has directed that the abuse of a person who is vulnerable, including because the victim is an Indigenous woman, deserves “society’s condemnation”, and that this must be reflected in sentences (M. (C.A.), at para. 81). By prioritizing deterrence, Parliament has directed that sentences must discourage the offender and others from engaging in such conduct (B.W.P., at para. 2). Parliament’s decision to prioritize denunciation and deterrence reflects its “intention for sentences to ‘better reflect the seriousness of the offence’” due to the “profound harm” caused (Friesen, at paras. 95 and 102, citing House of Commons Debates, vol. 140, No. 7, 1st Sess., 38th Parl., October 13, 2004, at p. 322).
Through s. 718.04, Parliament has attempted to “re-set the approach of the criminal justice system” to offences involving the abuse of vulnerable persons, rather than continue the status quo (Friesen, at para. 102, quoting R. v. D.R.W., 2012 BCCA 454, 330 B.C.A.C. 18, at para. 32). By restricting the weight given to other sentencing factors, by signalling the heightened gravity of these offences, and by requiring judges to prioritize sentences that communicate society’s condemnation and deter future offences, Parliament’s decision to prioritize denunciation and deterrence is a “substantive direction to the courts” (R. v. Wood, 2022 MBCA 46, at para. 45). Parliament has directed courts to “impose more severe sanctions” for these offences (Friesen, at para. 101). “Courts must follow Parliament’s direction” by placing vulnerable victims “at the centre of the sentencing process”, and cannot allow an offender’s personal circumstances to “overshadow the wrongs and harms” that they inflicted on the victim (R. v. Pike, 2024 ONCA 608, 173 O.R. (3d) 241, at para. 160).
With respect, the majority’s interpretation of s. 718.04 gives insufficient effect to Parliament’s direction to courts to prioritize denunciation and deterrence and to generally impose harsher sanctions to respond to the abuse of vulnerable victims. The majority’s interpretation instead stresses that judges may emphasize other sentencing objectives, including those focussing on the offender’s needs (see, e.g., paras. 73, 77, 119, 122-23, 125 and 160). Although we accept that in appropriate cases sentencing judges are not precluded from “accord[ing] significant weight to other factors” (Friesen, at para. 104), this cannot distort Parliament’s clear direction that denunciation and deterrence must take precedence: this generally calls for harsher sentences (see Friesen, at para. 101).
The majority emphasizes that a harsher sentence will not always mean incarceration (paras. 74-75 and 131; see also Proulx, at para. 22; Ipeelee, at paras. 66 and 74). Nobody disputes that. There are few, if any, absolutes in sentencing. But as this Court has stated plainly, and repeatedly, “in all cases in which general or specific deterrence and denunciation must be emphasized, the courts have very few options other than imprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law-abiding society” (Lacasse, at para. 6; Parranto, at para. 51). Separation from society “can be the means to reinforce and give practical effect to deterrence and denunciation” (Friesen, at para. 103).
Several interveners questioned the general efficacy of imprisonment at all, citing legal scholars. With respect, this Court must give effect to Parliament’s policy choices as reflected in provisions of the Criminal Code, not question their merit.
(3) Section 718.201: Abuse of Intimate Partners — Vulnerability of Female Intimate Partners
Section 718.201 directs sentencing judges to consider the increased vulnerability of female victims where the offence involves abuse of an intimate partner, giving particular attention to the circumstances of Indigenous female victims. Parliament adopted this measure based on extensive evidence of the disproportionate vulnerability of women, especially Indigenous women and girls, to intimate partner violence (Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, No. 60, 1st Sess., 42nd Parl., May 1, 2019; Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, May 8 and 9, 2019; Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, May 16, 2019).
Although s. 718.201 directs particular attention to Indigenous female victims, it applies to all incidents of female intimate partner abuse. It reflects society’s evolving understanding of the prevalence, severity, and harms of intimate partner violence (Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, May 16, 2019 (Hon. Lillian Dyck); Criminal Code, s. 718.201; see also Ahluwalia v. Ahluwalia, 2026 SCC 16). It was motivated partly by Parliament’s concern that, absent statutory direction, these vulnerabilities would continue to be largely ignored (Thirty-Second Report of the Standing Senate Committee on Legal and Constitutional Affairs, No. 64, 1st Sess., 42nd Parl., June 4, 2019, Observation 3; see also Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, No. 63, 1st Sess., 42nd Parl., May 30, 2019). The provision was part of a package of reforms meant to “toughen” the justice system’s response to intimate partner violence (see Department of Justice, Legislative Background: An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, as enacted (Bill C-75 in the 42nd Parliament) (2019), at p. 19; A.D., at paras. 28-29; R. v. Cunningham, 2023 ONCA 36, 166 O.R. (3d) 147, at para. 49; Wood, at paras. 34-39).
By recognizing the vulnerability of victims of intimate partner violence, s. 718.201 impacts both elements of proportionality. It increases the gravity of the offence because the consequential harm is often greater for a more vulnerable victim. It also increases the offender’s moral blameworthiness because the offender has harmed a vulnerable member of society (see Friesen, at para. 90). Parliament has recognized this by listing intimate partner violence as an aggravating factor in 718.2(a)(ii). As a result, s. 718.201 should generally result in a harsher sentence and make it more likely that a fit sentence will involve incarceration.
(4) Section 718.2(e): Consideration of All Available Sanctions, With Particular Attention to the Circumstances of Indigenous Offenders
Under s. 718.2(e), sentencing judges must consider “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community . . . with particular attention to the circumstances of [Indigenous] offenders”. Relatedly, s. 718.2(d) provides that “an offender should not be deprived of liberty, if less restrictive sanctions” are appropriate.
Section 718.2(e) is aimed at “reducing the use of prison as a sanction, at expanding the use of restorative justice principles in sentencing, and at engaging in both of these objectives with a sensitivity to [Indigenous] community justice initiatives when sentencing [Indigenous] offenders” (Gladue, at para. 48). It requires a different method of analysis to impose a fit and proportionate sentence (Ipeelee, at para. 59).
The overrepresentation of Indigenous people in Canadian prisons is a serious and worsening social problem (Statistics Canada, Over-representation of Indigenous persons in adult provincial custody, 2019/2020 and 2020/2021 (July 2023), at p. 3; Office of the Correctional Investigator, Annual Report 2022-2023 (2023), at pp. 52-53; Department of Justice Canada, Just Facts: The Overrepresentation of Indigenous People in the Criminal Justice System, November 2024 (online), at p. 4). This problem flows from numerous causes linked to the legacies of colonialism (Gladue, at para. 65; Office of the Correctional Investigator (2023), at p. 54). At the same time, sentencing necessarily has a limited role in combatting the causes of complex social issues such as Indigenous overincarceration, as well as the “greater problem of [Indigenous] alienation from the criminal justice system” (Gladue, at para. 65). Accordingly, although s. 718.2(e) must be interpreted to “ameliorate” this serious problem, it cannot resolve that disproportion on its own (para. 93; Ipeelee, at para. 59).
Under s. 718.2(e), the circumstances of Indigenous offenders must be considered in accordance with the two-step framework established in Gladue. First, judges must consider “[t]he unique systemic or background factors which may have played a part in bringing the particular [Indigenous] offender before the courts” (Gladue, at para. 66). These factors may bear on the offender’s moral culpability (Ipeelee, at para. 73). Second, judges must consider “[t]he types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular [Indigenous] heritage or connection” (Gladue, at para. 66), and those which are “consistent with the harm done to victims or to the community” (s. 718.2(e); see R. v. L.P., 2020 QCCA 1239, 393 C.C.C. (3d) 1, at para. 73). This concerns the effectiveness and appropriateness of the sentence, rather than the offender’s moral culpability (Ipeelee, at para. 74).
The Gladue analysis will not necessarily result in a reduced or different sentence (Gladue, at para. 88; Ipeelee, at para. 60; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 44). Particularly violent and serious offences will often warrant imprisonment for Indigenous and non-Indigenous offenders alike (Gladue, at para. 33). The more violent and serious the offence, the more likely that the terms of incarceration will be similar for Indigenous and non-Indigenous offenders (para. 79; Wells, at paras. 42 and 50). This is not an invariable rule, nor does it signal that the Gladue analysis is inapplicable in serious cases (Ipeelee, at paras. 84-85). It instead reflects a fundamental sentencing principle: the more serious and violent the offence, the greater its gravity, and the more weight should be given to denunciation and deterrence (see Wells, at para. 42).
We respectfully disagree with the majority’s view that s. 718.2(e) allows sentencing judges to “‘braid’ Indigenous law and legal traditions” into sentencing law (para. 50). The majority relies in part on Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 (paras. 6 and 50). That case concerned legislation aimed at implementing the United Nations Declaration on the Rights of Indigenous Peoples, U.N. Doc. A/RES/61/295, October 2, 2007, by expressly conferring jurisdiction on Indigenous governing bodies over Indigenous child and family service matters. This Court used the analogy of three strands of a braid to describe the legal norms interwoven by the legislative authority of Indigenous peoples, legislative provisions enacted by Parliament, and the international standards referred to in the Declaration (para. 7).
But Parliament has done nothing comparable in the Criminal Code; it has not conferred jurisdiction on Indigenous communities over sentencing decisions, nor has it directed sentencing judges to defer to Indigenous legal traditions. Section 718.2(e) instead requires sentencing judges to consider the background and perspectives of an Indigenous offender and their community to determine whether alternative procedures and sanctions would be more appropriate, while also furthering the objectives, principles, and purpose of sentencing set out in the Criminal Code (Gladue, at para. 81; Ipeelee, at para. 51). Section 718.2(e) requires an “alter[ed] . . . method of analysis” for Indigenous offenders, but it does not create a different sentencing regime (Gladue, at para. 33). The sentencing judge retains the ultimate discretion in sentencing in accordance with the Criminal Code. As a result, respectfully stated, the “braiding” analogy is misplaced to the extent that it would limit the discretion of the sentencing judge.
In sum, a sentencing judge only has authority to impose sentences based on the objectives, principles, and purposes stipulated by Parliament in the Criminal Code. Indigenous sentencing factors may inform the sentencing judge’s view of a fit sentence, but they do not require the judge to consider a sanction that would not further the sentencing objectives in the Criminal Code.
(5) Framework for Applying Sections 718.04, 718.201, and 718.2(e)
We turn next to how sentencing judges should approach sentencing where ss. 718.04, 718.201, and 718.2(e) apply.
In sentencing any offender, the sentencing judge’s task is to impose a fit sentence: one that protects society and is proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1). The sentencing judge must have regard to the offender, the offence, and the victim to determine the relevant aggravating and mitigating circumstances, weigh the relevant sentencing objectives, and impose a proportionate sentence.
A sentencing judge considering ss. 718.04, 718.201, and 718.2(e) should apply a three-stage framework. First, the sentencing judge should consider the offence and the victim. Second, the sentencing judge should consider the personal characteristics of the offender. Third, the sentencing judge should impose a fit sentence that is proportionate and advances the relevant sentencing objectives given the offence, the victim, and the offender. Some considerations will be relevant at more than one stage. This framework is intended to be a flexible guide to assist sentencing judges in crafting a fit sentence. Although considerations under ss. 718.04, 718.201, and 718.2(e) may pull in opposing directions, this often happens in sentencing. Sentencing judges are well-versed in reconciling such considerations in fixing a fit sentence.
(a) Stage One: The Offence and the Victim
At the first stage, the judge should consider the offence and the victim, including any considerations that serve as aggravating factors, such as those bearing on the gravity of the offence, the offender’s moral culpability, and the need to further certain sentencing objectives.
When the offence involves the abuse of a vulnerable victim, s. 718.04 directs sentencing judges to prioritize denunciation and deterrence. The sentencing judge must place the vulnerable victim “at the centre of the sentencing process” to account for the heightened gravity of the offence given its impact on the vulnerable victim (Pike, at para. 160).
When the offence involves the abuse of an intimate partner, s. 718.201 requires the sentencing judge to consider the vulnerability of female victims, with particular attention to the circumstances of Indigenous female victims. That vulnerability increases both the gravity of the offence and the offender’s moral blameworthiness. The sentencing judge should account for this in two ways.
First, the sentencing judge must consider the disproportionate vulnerability of women victims of intimate partner violence, including Indigenous women. Women are a disproportionate majority — 79 percent — of the victims of intimate partner violence in Canada (Statistics Canada, Family violence in Canada: A statistical profile, 2019 (March 2021), at p. 29). Indigenous women are victims of physical violence among intimate partners at an even greater rate than non-Indigenous women — approximately 44 percent and 25 percent, respectively (Statistics Canada, Intimate partner violence: Experiences of First Nations, Métis and Inuit women in Canada, 2018 (May 2021), at pp. 5 and 16; Statistics Canada, Violent victimization and perceptions of safety, at p. 7).
Second, a sentencing judge should give specific attention to the particular ways in which the victim is vulnerable, including because the victim: was abused in the family home (R. v. Glada, 2003 YKTC 11, at para. 7; R. v. Thrasher, 2021 NWTSC 28); has continued feelings of love and affection for the offender (R. v. Inuktalik, 2013 NWTSC 75, at p. 18); wants the relationship with the offender to work for the sake of the children (R. v. J. (J.), 2004 NLCA 81, 192 C.C.C. (3d) 30, at para. 64); is financially dependent on the offender (R. v. M.L., 2024 ONCJ 372, at para. 93; R. v. Anaittuq, 2022 NUCJ 37, at para. 36); is trying but struggling to leave the relationship with the offender (Inuktalik, at pp. 1-2; R. v. Mantla, 2018 NWTSC 73); lives in an isolated community (Anaittuq, at para. 36; R. v. T.T., 2025 NUCJ 22, at para. 71); feels social pressure not to report the offender’s abuse (T.T., at para. 72); is cut off from family and friends (Mantla); fears that participating in the court process will cause more violence by the offender (Mantla; R. v. Piugattuk, 2023 NUCJ 12, at para. 25); is smaller and weaker than the offender (Anaittuq, at para. 35); has substance abuse or mental health challenges (R. v. Sateana, 2016 NUCJ 20, at para. 5); or has experienced or witnessed intimate partner violence before (R. v. Needlay, 2022 BCPC 173, at para. 33). The victim’s particular vulnerabilities may increase either or both of the gravity of the offence and the offender’s moral culpability.
Other aspects of the offence may bear on the particular vulnerability of a victim, the gravity of the offence, the offender’s moral culpability, and what is needed to protect the victim and society. For example, the sentencing judge may consider whether the offender’s abuse: was part of an ongoing pattern (R. v. Tsetta, 2006 NWTSC 14, at para. 14; R. v. Atkinson, 2024 YKSC 21, at para. 76; Sateana, at para. 65; R. v. J.A., 2013 NUCJ 7, at para. 53; Anaittuq, at para. 35); had sexual elements (Anaittuq, at para. 41); involved controlling or coercive behaviour (J.A., at paras. 41, 53 and 74-75); resulted in serious injury (R. v. Akkak, 2017 NWTSC 30; Anaittuq, at para. 35); involved the use of, or threat to use, weapons; involved choking or an attempt to do so (Akkak; Tsetta, at para. 4); took place in the presence of children (R. v. St. Croix, 2021 NWTSC 12; Mantla; Anaittuq, at para. 37; Piugattuk, at paras. 44-45); or occurred when the offender was prohibited from contacting the victim (J.A., at para. 40; St. Croix; R. v. VanEindhoven, 2013 NUCJ 30, 9 C.R. (7th) 94, at para. 35).
(b) Stage Two: The Offender
At the second stage, the sentencing judge should consider the Indigenous offender’s personal circumstances, including their background and personal history, which may mitigate their moral culpability. They must consider the first step of the Gladue framework required under s. 718.2(e): “The unique systemic or background factors which may have played a part in bringing the particular [Indigenous] offender before the courts . . .” (Gladue, at para. 66). Many Indigenous offenders live in “situations of social and economic deprivation”, which “may diminish their moral culpability” (Ipeelee, at para. 73). The sentencing judge should take judicial notice of these background factors and consider whether they relate to the particular offender (Wells, at para. 53; Ipeelee, at para. 59). Circumstances such as racism, poverty, abuse, addiction, and cultural dislocation may also bear on the offender’s moral culpability (Ipeelee, at para. 73; Gladue, at para. 80).
The sentencing judge may also consider other factors relating to the offender at this stage, such as any criminal record, whether they are remorseful and have taken responsibility for the offence, and their prospects for rehabilitation.
(c) Stage Three: Selecting an Appropriate Sanction
At the third stage, the sentencing judge should impose a sentence that is proportionate to the gravity of the offence and the offender’s moral culpability to advance the sentencing objectives relevant to the offence, the victim, and the offender.
The sentencing judge must identify the relevant sentencing objectives and consider the sentence that would effectively advance them (see Ipeelee, at para. 74). In doing so, the sentencing judge must apply step two of the Gladue framework to determine whether alternatives to incarceration are appropriate (Gladue, at para. 66). The discretion to evaluate the efficacy of these options lies with the sentencing judge (Ipeelee, at para. 128). For many Indigenous offenders, restorative justice principles such as rehabilitation, reparation, and promoting a sense of responsibility in the offender may be given greater weight (Gladue, at para. 70). Even so, where s. 718.04 applies, denunciation and deterrence must be given priority, in which case, a sentencing judge has “very few options other than imprisonment” (Lacasse, at para. 6; see also B.W.P., at para. 36).
We respectfully disagree with the majority that ss. 718.04 and 718.201 pull in the same direction as s. 718.2(e), each seeking to further restorative justice (para. 112, citing R. v. Dedam, 2026 ONCJ 409, at para. 74). There is no proper basis to conclude that Parliament intended the provisions to be directed at restorative justice. The majority relies on the interpretation set out in Dedam, that the provisions each address different aspects of colonial injustice, but this does not necessarily mean they all aim to further restorative justice. As we have set out, ss. 718.04 and 718.201 direct sentencing judges to prioritize denunciation and deterrence and to pay special attention to the vulnerability of Indigenous women victims of intimate partner violence, generally requiring harsher sentences for their abusers. Parliament could have directed sentencing judges to prioritize restorative justice principles through these provisions, but it did not do so. Parliament’s direction must be respected.
(d) Conclusion on the Interaction of Sections 718.04, 718.201, and 718.2(e)
Each of ss. 718.04, 718.201 and 718.2(e) is a legislative direction from Parliament, and each must be given effect. Each informs the sentencing judge’s assessment of proportionality and the appropriate sentence. When the offender is Indigenous, sentencing judges must apply the Gladue framework under s. 718.2(e) to assess whether the offender’s moral blameworthiness is reduced and whether an alternative sanction is appropriate. Generally, however, ss. 718.04 and 718.201 will call for harsher sentences, and s. 718.04 will generally require incarceration.
In our respectful view, the majority’s approach does not sufficiently reflect Parliament’s intention that ss. 718.04 and 718.201 call for more severe sanctions. When either or both provisions apply, Parliament has directed that the sentence should generally be harsher than if they did not. As recognized by this Court, it is common for sentences to change “as societal and judicial knowledge and attitudes about certain offences change” (Parranto, at para. 22). These provisions are Parliament’s direction to sentencing judges to account for society’s deepening awareness of the gravity and harmfulness of offences that involve the abuse of vulnerable people, including Indigenous women and intimate partners.
The majority treats Parliament’s direction in s. 718.04 — to prioritize denunciation and deterrence in cases involving an Indigenous woman victim — as a matter of discretion for the sentencing judge. But it is not. Sentencing judges are not permitted to give priority to other sentencing principles, such as those related to restorative justice, when an offence is committed against an Indigenous woman or girl. Because these provisions impact the proportionality analysis, they will generally call for a harsher sentence, whether or not the offender is Indigenous.
At the same time, Parliament’s directives under ss. 718.04 and 718.201 do not require sentencing judges to reflexively increase sentences or necessarily to incarcerate offenders. Sentences must be proportionate and individualized, and the principle of restraint applies in every case (ss. 718.1 and 718.2(d)). Sections 718.04 and 718.201 do, however, structure the discretion of sentencing judges.
D. Mental Health and Sentencing
We turn next to the principles regarding mental health and sentencing. An offender with mental health challenges, unless found not criminally responsible due to mental disorder (“NCRMD”), remains morally culpable for the offence. Such culpability can only be reduced where the offender establishes their mental illness caused or contributed to the commission of the offence. Even so, mental illness does not displace ss. 718.04 and 718.201, Parliament’s prioritization of denunciation and deterrence, or the purpose of protecting society.
A causal or, at minimum, a contributory connection between an offender’s mental illness and the offence may reduce the offender’s moral blameworthiness, bearing on the proportionate sentence (R. v. Perry, 2025 ONCA 241, at para. 27; R. v. Badhesa, 2019 BCCA 70, at para. 42; R. v. Butler, 2019 NLCA 21, 4 C.A.N.L.R. 294, at para. 28; R. v. Okemow, 2017 MBCA 59, 353 C.C.C. (3d) 141, at para. 72; Ruby, at §5.316; see R. v. Bertrand Marchand, 2023 SCC 26, at para. 128). Sentencing judges must “be satisfied on a balance of probabilities that the disorder caused or contributed to the commission of the offence” (R. v. Nystrom, 2023 BCCA 232, at para. 22). “Detailed and specific medical evidence is necessary to properly understand the relationship between the disorder and the offending conduct; generalized evidence is not sufficient” (para. 22; see also Okemow, at para. 73).
An offender’s mental illness may also be relevant to weighing sentencing objectives. When it is demonstrated that an offender’s mental illness caused or contributed to the commission of the offence, the weight accorded to deterrence and denunciation may be reduced, and rehabilitation may hold greater weight (Bertrand Marchand, at para. 158). At the same time, this does not preclude the application of other objectives, since “[n]o single sentencing objective should be applied to the exclusion of all others” (Hills, at para. 140; Nasogaluak, at para. 43).
The weight to be given to different sentencing objectives depends on what Parliament has prioritized. Through s. 718.04, Parliament has prioritized deterrence and denunciation. A causal or contributory connection between an offender’s mental illness and the offence does not preclude a sentence from achieving these objectives, even where the weight accorded to them may be more limited. For specific deterrence, the sentencing judge must consider the offender’s mental illness and its connection to the offence to determine what sentence would reduce the offender’s risk of reoffending. For general deterrence, the sentencing judge must consider whether the offender’s mental illness diminishes the potential of the sentence to deter others. When the offence is closely tied to an offender’s severe mental illness, the sentence may have little general deterrent effect, but where the connection is more attenuated, it may still serve to deter the broader population.
When Parliament has prioritized denunciation, a judge must consider a sentence that achieves denunciation, even where mental illness played a role in the commission of the offence. Although mental illness may mitigate the offender’s moral culpability, it does not mitigate the harm caused by the offence. Nor will the role of denunciation and deterrence be completely displaced, especially where Parliament has expressly prioritized them (see R. v. Ellis, 2013 ONCA 739, 303 C.C.C. (3d) 228, at paras. 111 and 122-23). On the other hand, an offender’s mental illness may inform the sentence if it is shown that the offender would experience incarceration more harshly because of their mental illness (Hills, at para. 135; R. v. B. (D.), 2025 ONCA 577, 178 O.R. (3d) 214, at paras. 12 and 38).
E. Sentencing Circles
We turn next to the principles regarding sentencing circles, which may inform an offender’s Indigenous sentencing factors. A sentencing judge’s failure to sufficiently engage with a sentencing circle’s report and recommendations will only be an error of law under s. 718.2(e) if the report and recommendations affect the required Gladue analysis. There is no statutory or legal basis for such a failure to be a standalone error of law. Nor is there a legal basis to conclude a sentencing judge’s failure to engage with the sentencing circle process can be a failure to apply s. 718.04 or 718.201 (O’Bonsawin J.’s reasons, at paras. 7-8 and 101). Requiring the variation of a sentence based on a sentencing circle would undermine the sentencing judge’s ultimate discretion to craft a proportionate sentence.
(1) Two Functions of Sentencing Circles
Sentencing circles can inform the offender’s Indigenous sentencing factors and the required Gladue analysis in two overlapping respects.
First, sentencing circles may inform the sentencing judge about the offender and the harm they caused (see Rudin, at p. 306; R. v. E.O., 2019 YKCA 9, 374 C.C.C. (3d) 338, at para. 60). For example, they can inform the sentencing judge about how the offender came to commit the offence, the impact on the victim and community, the community’s insights into the offender, its view of an appropriate sentence, and potential services and programming (see, e.g., R. v. Van Bibber, 2010 YKTC 49, 98 M.V.R. (5th) 33, at para. 79). Sentencing circles can also give the sentencing judge insights into Indigenous approaches to sentencing (Wells, at paras. 36-37; Gladue, at para. 70; M. Sinclair, “Aboriginal Peoples, Justice and the Law”, in R. Gosse, J. Youngblood Henderson and R. Carter, eds., Continuing Poundmaker and Riel’s Quest: Presentations Made at a Conference on Aboriginal Peoples and Justice (1994), 173, at p. 178).
Second, sentencing circles can facilitate restorative justice. They can communicate to the offender the community’s views on what is needed to repair the harm, give the community some responsibility for the offender, and require the offender to accept responsibility in the presence of their community (see R. v. Taylor (1997), 163 Sask. R. 29 (C.A.), at para. 70; Gladue, at para. 71). This function requires the offender to feel accountable to, and have a relationship with, the community, to allow the offender to repair the harm they caused (see R. v. Morin (1995), 134 Sask. R. 120 (C.A.), at para. 87).
(2) General Principles Guiding the Use of Sentencing Circles
The particular form and process of a sentencing circle will depend on the specific circumstances of each community (B. Stuart, “Circle Sentencing in Canada: A Partnership of the Community and the Criminal Justice System” (1996), 20 Int’l J. Compar. & Applied Crim. Just. 291, at p. 294; see also E.O., at paras. 58-59; R. v. Tom, 2012 YKTC 55, 35 M.V.R. (6th) 195, at para. 39). Even so, four general principles should guide their use.
First, the sentencing judge has discretion as to whether a sentencing circle is appropriate and, if it is, the weight to give its recommendations (R. v. L. (B.), 2002 ABCA 44, 2 Alta. L.R. (4th) 32, at para. 24; R. v. Munson, 2003 SKCA 28, 172 C.C.C. (3d) 515, at paras. 69-71). A sentencing circle is part of the court’s sentencing process, not a substitute for it. The sentencing judge should decide whether to hold a sentencing circle after considering the offence, the offender, the victim, and the impacted community (see e.g., J. (J.), at para. 61).
Second, there must be an Indigenous community that recognizes the offender as a member, has the capacity and willingness to participate in the sentencing circle, and to which the offender has a connection (see, e.g., R. v. Joseyounen, [1995] 6 W.W.R. 438 (Sask. Prov. Ct.), at para. 20; R. v. Cheekinew (1993), 80 C.C.C. (3d) 143 (Sask. K.B.), at para. 25; Morin, at para. 91, per Bayda C.J.S., dissenting; J. (J.), at para. 34).
Third, the sentencing judge and the Indigenous community have discretion to decide whether the offender is suitable for a sentencing circle. Relevant considerations include whether the offender has agreed to the circle; has been found versus pleaded guilty; has accepted responsibility for the offence; and is ready to acknowledge the harm they caused, make amends, listen to the community and victim, and accept the sentencing circle’s recommended programming (see, e.g., Joseyounen, at paras. 16-18; Cheekinew, at para. 25; Morin, at para. 91, per Bayda C.J.S.; J. (J.), at para. 34). Disputed facts should be resolved in advance.
Fourth, the victim’s interests must be considered. Victims must not be pressured to participate. The sentencing judge should also consider whether victims have the capacity to participate (see, e.g., Joseyounen, at para. 28; J. (J.), at paras. 33-34).
(3) A Failure to Have Regard to a Sentencing Circle’s Report and Recommendations May Constitute an Error of Law Under Section 718.2(e) but Cannot Constitute an Error of Law Under Section 718.04 or 718.201
Neither the majority nor the dissent in the Court of Appeal found any reviewable error in the sentencing judge’s consideration of the sentencing circle’s report and recommendations. Both concluded that a sentencing judge is not bound by the recommendations of a sentencing circle, but they disagreed on whether a sentencing judge must address a sentencing circle’s recommendations in their reasons. The majority concluded that reasons should address the sentencing circle’s recommendations to show respect for the Indigenous community, but found no error because it inferred that the sentencing judge was concerned that Mr. Cope would not comply any conditions of a conditional sentence order. The dissenting justice, by contrast, concluded that a sentencing judge must consider a sentencing circle report but “need not be explicit in their reasons for adopting or refusing to adopt the recommendations to avoid appellate intervention” (para. 298).
In our view, a sentencing judge’s failure to implement a sentencing circle’s report and recommendations cannot, by itself, amount to a legal error under s. 718.2(e). Among other considerations, there is no guarantee that every sentencing circle will be conducted in a manner that gives a sentencing judge confidence in its recommendations (see, e.g., E.O., at paras. 60-66), or that every report will necessarily bear on the Gladue analysis. As a result, a failure to implement a sentencing circle’s report or recommendations cannot be a legal error per se.
We disagree with the majority of this Court that a sentencing judge’s failure to meaningfully consider the sentencing circle process can amount to a failure to apply s. 718.04 or 718.201, “whether or not an Indigenous victim participates in a sentencing circle” (paras. 7-8 and 101). This view is unsupported by the provisions themselves and is inconsistent with the function of the sentencing circle. As we stated above, there is nothing rooting these provisions in restorative justice. There is similarly nothing that makes a sentencing circle particularly able to incorporate the perspective of the victim into its process or recommendations, regardless of whether she participates. The focus of the sentencing circle is on the offender and their particular community. The victim may be from another Indigenous community altogether. As a result, a failure to meaningfully consider the sentencing circle’s process or recommendations cannot amount to an error under s. 718.04 or 718.201.
Assessing whether a sentencing judge has adequately considered a sentencing circle’s report will usually be a question of the sufficiency of their reasons, evaluated through a functional and contextual review (R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 69; Sheppard, at para. 44). A sentencing judge can adequately engage with the content of a sentencing circle’s report without using specific language. Whether or not a sentencing circle has been held, the purpose of sentencing reasons is “to hold judges accountable to the public, to provide an intelligible result to the parties, and to enable effective appellate review” (Sheppard, at para. 45). The relevant question is whether, considering the record and the Criminal Code’s sentencing requirements, the foundations of the sentencing judge’s decision are discernable (para. 46).
We acknowledge that there are sound reasons — as a best practice rather than a legal obligation — for a sentencing judge to address a sentencing circle’s recommendations directly and in detail. When the sentencing judge determines that the fit sentence differs from the sentencing circle’s recommendation, a sentencing judge’s reasons explaining why may build trust with the Indigenous community, show respect for the participants’ efforts, and encourage future participation. When the sentencing judge determines that the fit sentence accords with the sentencing circle’s recommendation, their reasons will illuminate its role and how it informs, but does not usurp, the sentencing judge’s discretion.
We respectfully disagree with the majority’s approach to how a sentencing judge should consider a sentencing circle’s recommendation because it departs from this Court’s longstanding functional and contextual approach to appellate review of a sentencing judge’s reasons. The majority agrees with Mr. Cope that it is insufficient for a sentencing judge to “explain why the sentencing circle’s recommendations are being accepted or rejected” (para. 100). The majority requires sentencing judges to adequately demonstrate in their reasons that they have incorporated a different “legal lens” through which they have understood “the contextual landscape”; that they have understood the sentencing circle as a “distinct perspective on sentencing”; and that their engagement with the sentencing circle and its report is adequately reflected in the sentence they impose (paras. 103 and 106). As a result, the majority imposes a singularly high standard for a sentencing judges’ reasons when a sentencing circle takes place.
Further, while the majority acknowledges that sentencing judges retain ultimate discretion in crafting a fit sentence, its approach risks creating a standalone obligation on sentencing judges not just to consider, but to incorporate, the views of a sentencing circle. For instance, the majority suggests that even when a sentencing judge determines that a sentencing circle’s non-carceral recommendation is unavailable and that public safety requires incarceration, the sentencing judge’s analysis as to the sentence is limited by the sentencing circle’s report (paras. 143-49). Respectfully stated, this approach is contrary to Parliament’s direction that sentencing judges have the ultimate decision-making authority at sentencing.
VII. Application
The sentencing judge appropriately considered all the relevant sentencing factors. She reasonably weighed Mr. Cope’s mental illness, addiction issues, Indigenous sentencing factors, and the sentencing circle’s recommendations, but ruled that five years’ incarceration was necessary to protect the public and give effect to ss. 718.04 and 718.201. She saw Mr. Cope testify first-hand, participated in the sentencing circle, and considered the sentencing circle’s report, the Indigenous sentencing report, and Mr. Cope’s mental health records. Her decision attracts appellate deference. An appellate court may not intervene simply because it would have weighed the relevant factors differently.
The majority of the Court of Appeal reduced the sentence by two years by substituting its preferred weighing of Mr. Cope’s mental illness, drug abuse, and Indigenous sentencing factors, faulting the sentencing judge for having “underemphasized”, “not sufficiently account[ed] for”, and not “accord[ed] sufficient weight to” these factors, which it said “needed to play a more pronounced role” (paras. 6 and 84). In our view, although the majority would have weighed these factors differently, it failed to show why the sentencing judge’s weighing was unreasonable. It cannot be said that no reasonable judge could have imposed a five-year sentence for Mr. Cope’s brutal assault on the victim — one year less than the sentencing judge ordinarily would have imposed.
The majority of this Court similarly reweighs the same factors to uphold the sentence imposed by the majority of the Court of Appeal. In particular, the majority substitutes its own factual finding that Mr. Cope was in a mental health crisis at the time of the aggravated assault, effectively faulting the sentencing judge for relying on the agreed statement of facts, Mr. Cope’s testimony, and his counsel’s submissions, none of which made this assertion. But, with respect, a sentencing judge has no duty to identify and develop factual theories not advanced by the parties. Imposing such an inquisitorial obligation would exceed the proper role of a sentencing judge. Nor does the majority establish that Mr. Cope’s mental illness caused or contributed to the assault, even though such a finding is necessary to justify appellate intervention. The majority likewise reweighs the sentencing circle’s report and recommendations, despite recognizing why the sentencing judge rejected those recommendations. In our view, there is no proper basis to vary the sentence.
A. The Sentencing Judge Properly Considered the Offence and the Victim
The sentencing judge appropriately considered the offence and the factors relevant to the victim. She addressed both the severity of Mr. Cope’s assault and the serious injuries he inflicted upon the victim.
The sentencing judge noted that s. 718.04 applied, given that the offence involved the abuse of a vulnerable and an Indigenous woman. She highlighted that she therefore had to give primary consideration to denunciation and deterrence. She also noted the aggravating factor under s. 718.2(a)(ii), which applies when the offender abuses their intimate partner.
The sentencing judge added that s. 718.201 applied because the victim was Mr. Cope’s intimate partner. She considered the victim’s particular vulnerabilities, noting that she is Indigenous, has struggled with addiction, and had lost a child, and that she and Mr. Cope were in a “dysfunctional relationship”. She noted that the nature and severity of Mr. Cope’s assault on the victim would be physically and emotionally traumatic for anyone (A.R., at pp. 22-23). She ruled that Mr. Cope’s status as the victim’s intimate partner increased the gravity of the offence and his moral blameworthiness.
B. The Sentencing Judge Properly Considered the Offender
(1) The Sentencing Judge Properly Considered Mr. Cope’s Indigenous Sentencing Factors
The sentencing judge also properly considered Mr. Cope’s Indigenous sentencing factors. Under step one of Gladue, she considered the unique systemic or background factors that may have contributed to bringing Mr. Cope before the court. She emphasized her duty to apply s. 718.2(e) and stated that the guiding principles from Gladue and Ipeelee were at “the forefront” of her analysis (A.R., at pp. 17 and 19-21). She considered the sentencing circle’s report and the Indigenous sentencing report, both of which provided information about Mr. Cope’s circumstances. She recognized that Mr. Cope, as an Indigenous person in Canada, had “suffered as a result of colonization, inter‑generational trauma and systemic racism”, and canvassed his experiences with poverty, racism, abuse, and a troubled childhood (p. 23).
(2) The Sentencing Judge Properly Considered Other Relevant Factors Regarding Mr. Cope
The sentencing judge also reviewed Mr. Cope’s criminal record spanning 16 years, including his convictions for violence, weapons offences, and breaches of court orders. She “accept[ed] that Mr. Cope is remorseful”, but found that he did not “fully recognize his responsibility”. She also rejected his reasons for relapsing into drug use and for assaulting the victim (A.R., at pp. 27-29).
(3) The Sentencing Judge Properly Considered Mr. Cope’s Mental Illness
The sentencing judge was alive to Mr. Cope’s “major addictions issues” and “significant mental illness” (A.R., at pp. 23-24 and 31), and she noted his mental health records were before her. She grappled with how, “when clean and treating his mental health, [Mr. Cope] is an employable, productive person, [but] when using, he is a danger to society” (pp. 30-31). She stated that Mr. Cope’s mental health was not in a good place at the time he breached the no-contact order in July 2021, but highlighted that he had assaulted the same victim in June 2021 (p. 27).
With respect, the Court of Appeal majority erred by making its own factual finding that Mr. Cope was in a “profoundly dysregulated state” when he assaulted the victim (para. 162). The sentencing judge made no such finding. Nor did the Court of Appeal majority identify any palpable and overriding error of fact made by the sentencing judge (para. 162; see H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at paras. 4, 55-58 and 89).
The agreed statement of facts did not attribute Mr. Cope’s assault of the victim to his mental illness; it only stated that Mr. Cope was intoxicated at the time. Mr. Cope also did not testify that he assaulted the victim because of his mental illness. To the contrary, he explained that he attacked the victim to prevent her from robbing a drug dealer, because he feared she would be killed as a result (A.R., at pp. 29-30). The sentencing submissions were filed with this Court and confirm that Mr. Cope’s counsel never claimed that Mr. Cope’s mental illness caused or contributed to his assault of the victim (pp. 208-39). Nor was there the necessary detailed and specific medical evidence before this Court suggesting that Mr. Cope’s mental illness caused or contributed to the assault.
As a result, in our respectful view, the majority of this Court improperly reweighs the same evidence that the sentencing judge considered, to substitute its own factual finding that “at the time of the aggravated assault[,] [Mr. Cope] was in a mental health crisis” (para. 140). The majority’s substituted finding, even if available, could not justify varying the original sentence because it was not demonstrated that there was a causal or contributory connection between Mr. Cope’s mental illness and the commission of the offence. The Court of Appeal did not find that Mr. Cope’s mental illness caused or contributed to the assault. As a result, there is no principled basis to conclude that the sentencing judge failed to sufficiently account for this factor.
The majority’s approach — that a sentencing judge may commit an error in principle if they do not, on their own initiative, supplement an offender’s testimony, defence counsel’s submissions, and the agreed facts before the court to determine whether an offender’s mental illness caused or contributed to the offending conduct — raises significant concerns. Imposing such an affirmative, and, in substance, diagnostic obligation on sentencing judges is unmanageable, unrealistic, and beyond their proper role. It also exceeds the usual guardrails of the adversarial process.
C. The Sentencing Judge Imposed a Fit Sentence
(1) The Sentencing Judge Did Not Err in Determining That Imprisonment Was the Appropriate Sanction
The sentencing judge also did not err in concluding that “protecting society call[ed] for a federal sentence for Mr. Cope” (A.R., at p. 31). This conclusion reflected Mr. Cope’s extensive violent criminal record, the “physically and emotionally” traumatic nature of the assault (p. 22), and how he had twice breached court orders not to contact the victim, just weeks after assaulting her.
The sentencing judge addressed step two of Gladue: the types of sentencing procedures and sanctions that may be appropriate because of Mr. Cope’s Indigenous background. She expressly considered whether “sanctions, other than imprisonment” would be appropriate (A.R., at p. 15; s. 718.2(e); Gladue, at para. 66). She noted that Mr. Cope’s proposed sentence included an in-patient treatment program followed by supportive housing with culturally appropriate treatment services, that he had an “impressive support group” of family, his community, and professionals, and that she hoped that the treatment and supportive housing programs would be considered by the parole board (A.R., at pp. 16, 29 and 34).
Nonetheless, as the majority of this Court accepts, the sentencing judge justified her conclusion that it was necessary to incarcerate Mr. Cope and declined to implement Mr. Cope’s proposed conditional sentence order (para. 165). She concluded that a sentence of less than two years was inappropriate, that incarceration was necessary to protect society, and that there was a significant risk that Mr. Cope would not comply with the conditions of a community-based sentence.
The sentencing judge’s conclusion reflected Mr. Cope’s history of failing to follow rehabilitative programs. After being found NCRMD of several offences in 2017, he was hospitalized as an in-patient, but in 2019 went absent without leave, resulting in a warrant being issued for his arrest. After receiving an absolute discharge in June 2020, Mr. Cope and his medical team developed a plan to maintain his mental health in the community, but he failed to follow it and relapsed into drug use. Similarly, although Mr. Cope expressed an interest in assisting with his community’s sweat lodge ceremonies, he stopped participating when an Elder told him that he had to be clean of drugs to continue. The Indigenous sentencing report noted comments of the community’s addiction coordinator that Mr. Cope had access to a drug treatment program, but that he had chosen not to participate in it. The sentencing judge asked defence counsel why Mr. Cope would adhere to the proposed rehabilitative programs now, to which defence counsel responded, “we don’t know. We can’t know” (A.R., at p. 234).
In all the circumstances, the sentencing judge made no reviewable error in concluding that Mr. Cope’s prospects for rehabilitation and his past failures to comply with court orders meant that he could not be released safely into the community.
(2) The Sentencing Judge Appropriately Considered the Sentencing Circle as It Related to Step Two of Gladue
The sentencing judge also sufficiently considered the relevance of the sentencing circle’s recommendations and report to step two of Gladue: whether a “different or alternative sanctions” to incarceration could “more effectively achieve the objectives of sentencing” in his Indigenous community (Ipeelee, at para. 74).
The sentencing judge participated in the sentencing circle, considered its report, and expressly acknowledged her obligation “to consider Mr. Cope’s community”, including the sentencing circle’s principal recommendation that his “community doesn’t recommend any further jail time” (A.R., at p. 28). She considered the core recommendation of a non-custodial sentence, but ultimately rejected it because the statutory criteria for a conditional sentence order were not met and because the relevant sentencing objectives could only be achieved by incarceration (p. 31). In that context, the sentencing judge cannot be faulted for not reviewing each recommendation in her reasons.
In any event, the sentencing judge addressed each of the factors that the majority of this Court finds in the sentencing circle’s report: Mr. Cope’s mental illness, remorse, interest in cultural programs, and the recommendation for a community-based sentence (O’Bonsawin J.’s reasons, at para. 145).
Even so, the majority of this Court faults the sentencing judge for not sufficiently considering what it describes as the sentencing circle’s perspective that Mr. Cope’s “mental health was central to the offences and the way forward”, which it says was “clearly relevant to understanding how mental health impacted his offending and how he would respond to various sentencing options” (para. 145). With respect, the sentencing circle report did not allege that Mr. Cope assaulted the victim because of his mental illness. In any event, whether Mr. Cope’s mental illness caused or contributed to his assault of the victim was a question of fact for the sentencing judge to decide.
Nor was the sentencing judge required to defer to the sentencing circle’s view on whether or how Mr. Cope would respond to particular sanctions. It was the sentencing judge’s responsibility to determine whether Mr. Cope was suitable for alternative sanctions. It was her responsibility to decide, based on Mr. Cope’s substantial record of past violent offences, that he was a danger to society and that there was a significant risk that he would not comply with the conditions of a community-based sentence, including one emphasizing rehabilitation.
We disagree with the majority’s view that a proper consideration of the sentencing circle’s report would have led the sentencing judge to impose a shorter sentence so that Mr. Cope could have been released into the community rather than being incarcerated (para. 151). This is at odds with the deference owed to the sentencing judge’s finding that Mr. Cope is a danger to society such that incarceration was necessary (para. 165). Such an approach also suggests that the sentencing judge should have either artificially lowered the sentence below what would have been a fit sentence to make probationary orders available (see s. 731(1)(b); R. v. Mathieu, 2008 SCC 21, [2008] 1 S.C.R. 723), or imposed a shorter sentence based on the ungrounded expectation that Mr. Cope would voluntarily engage in community programming on his release, contrary to his history of non-compliance with such programs. Either approach would prioritize rehabilitation over denunciation and deterrence, contrary to s. 718.04, and risk undermining the protection of society.
In sum, the sentencing judge appropriately considered s. 718.2(e), including the sentencing circle report. She did not engage in “box-checking” or “performative tokenism” (O’Bonsawin J.’s reasons, at paras. 7 and 107).
(3) The Sentence Was Proportionate and Reflected the Relevant Sentencing Objectives
The sentencing judge set out the maximum sentence for aggravated assault of 14 years’ imprisonment (s. 268(2)) and reviewed the sentencing ranges in Tourville for Indigenous offenders convicted of aggravated assault. She accounted for Mr. Cope’s Indigenous sentencing factors, mental illness, and addiction issues in determining that they justified a sentence of one year less than it otherwise would have been (A.R., at p. 31).
The five-year sentence reflected Mr. Cope’s extensive criminal record, the finding that he posed a danger to society, the principles of denunciation and deterrence (as required by s. 718.04), and the vulnerability of the victim (as required by s. 718.201). The sentence of three years substituted by the majority of the Court of Appeal did not appropriately reflect any of these considerations.
The majority of this Court does not explain how the Court of Appeal’s substituted sentence would give priority to these objectives or address the vulnerability of the victim. The majority only recognizes that a sentence of imprisonment was required to denounce this specific offence, and says the sentence imposed by the Court of Appeal was a “sound middle ground” sufficient to denounce and deter such conduct while also furthering rehabilitation (para. 167). With respect, this approach fails to accord the sentencing judge’s decision the required level of appellate deference.
VIII. Disposition
We would accordingly allow the appeal and restore the sentence imposed by the sentencing judge.
Footnotes
- [1] These reasons refer to the principles from s. 718.2(e) as interpreted by Gladue and Ipeelee as Indigenous background principles, and reports prepared to assist in their application as Indigenous Background Reports.
- [2] The Hon. Murray Sinclair was the first Indigenous judge in Manitoba, a co-commissioner of Manitoba’s Aboriginal Justice Inquiry, chair of the Truth and Reconciliation Commission of Canada, and a Senator.
- [3] These reasons refer to “Indigenous sentencing factors” and “Indigenous sentencing reports”, rather than “Gladue factors” and “Gladue reports” (see, e.g., R. v. R.W.R., 2026 YKCA 10; R. v. Gallagher, 2026 BCCA 196; R. v. Cliffe, 2026 BCCA 273; and R. v. McCrae, 2026 BCCA 236).
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- Gladue Gladue ¶ 51, ¶ 52, ¶ 53, ¶ 57, ¶ 66, ¶ 77, ¶ 87, ¶ 91, ¶ 107, ¶ 111, ¶ 124, ¶ 125, ¶ 147, ¶ 160, ¶ 169, ¶ 173, ¶ 178, ¶ 190, ¶ 217, ¶ 236, ¶ 250, ¶ 253, ¶ 255, ¶ 286, ¶ 294, ¶ 298
- Gladue Gladue, at para. 33 para 33 ¶ 51, ¶ 237, ¶ 239
- Gladue Gladue, at para. 65 para 65 ¶ 54, ¶ 113, ¶ 128, ¶ 235
- Gladue Gladue, at para. 34 para 34 ¶ 54
- R. v. Greer 2026 ONCA 222 para 27, para 26, paras 24 and 29 ¶ 59, ¶ 60, ¶ 65, ¶ 79, ¶ 80
- R. v. Lavallee 21022-1990-05-03 p 872 ¶ 59
- Ahluwalia v. Ahluwalia 2026 SCC 16 para 106, para 108, para 5, paras 122-23, paras 112, para 124, para 112, para 123 ¶ 59, ¶ 60, ¶ 79, ¶ 82, ¶ 87, ¶ 231
- R. v. Barton 2019 SCC 33 para 201, para 200 ¶ 64, ¶ 82, ¶ 85
- R. v. Wood 2022 MBCA 46 paras 32, para 55, para 45 ¶ 65, ¶ 80, ¶ 226
- R. v. Boucher 186 C.C.C. (3d) 479 para 27 ¶ 65
- R. v. Denkers 69 O.A.C. 391 ¶ 65
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- Rizzo & Rizzo Shoes Ltd. (Re) 24711-1998-01-22 para 21 ¶ 67
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- R. v. Rayo 2018 QCCA 824 paras 103 and 107, para 108 ¶ 71, ¶ 73, ¶ 224
- R. v. Hiebert 2024 MBCA 26 paras 17-18 ¶ 72
- R. v. Proulx 2000 SCC 5 para 102, paras 22 and 41, para 41, para 46, paras 98 and 112, para 22, para 106 ¶ 72, ¶ 74, ¶ 131, ¶ 165, ¶ 204, ¶ 215, ¶ 228
- R. v. B.W.P.; R. v. B.V.N. 2006 SCC 27 para 2, paras 2 and 39, para 36 ¶ 72, ¶ 212, ¶ 225, ¶ 253
- R. v. Pike 2024 ONCA 608 para 160, paras 159-60 ¶ 72, ¶ 226, ¶ 245
- R. v. Bertrand Marchand 2023 SCC 26 para 28, para 128, para 158, para 123 ¶ 73, ¶ 136, ¶ 137, ¶ 157, ¶ 160, ¶ 260, ¶ 261
- Desjardins and Lachance Desjardins and Lachance, at para. 47 para 47 ¶ 73
- R. v. Ali 2022 ONCA 736 para 28 ¶ 73
- R. v. Taylor 163 Sask.R. 29 paras 87-88, para 70, paras 70 and 87 ¶ 74, ¶ 97, ¶ 98, ¶ 130, ¶ 267
- R. v. Lacasse 2015 SCC 64 paras 44 and 46, paras 42-44 and 46, para 44, para 6, paras 41 and 48, para 48, para 11, para 53, para 49, para 5, para 4 ¶ 76, ¶ 132, ¶ 150, ¶ 173, ¶ 176, ¶ 201, ¶ 202, ¶ 203, ¶ 204, ¶ 210, ¶ 214, ¶ 228, ¶ 253
- R. v. Bergeron 2013 QCCA 7 para 37 ¶ 77
- R. v. M.S. 2025 BCCA 207 para 24 ¶ 80
- R. v. Cunningham 2023 ONCA 36 paras 27, para 49 ¶ 80, ¶ 231
- R. v. A.D. 2024 ABCA 178 para 50, paras 28-29, para 52, para 29 ¶ 80, ¶ 223, ¶ 231
- R. v. L.P. 2020 QCCA 1239 para 97, para 99, para 73 ¶ 85, ¶ 88, ¶ 89, ¶ 236
- R. v. Gordon 2021 QCCQ 12998 para 37 ¶ 85
- R. v. Barton 2021 ABQB 603 paras 70-73 ¶ 88
- 2024 ABCA 351 2024 ABCA 351 ¶ 88
- R. v. J.G. 2025 ABKB 576 paras 53-55 ¶ 88, ¶ 155
- R. v. Saulis 2025 NBPC 3 para 63 ¶ 88, ¶ 155
- R. v. Plante 2026 QCCQ 566 paras 44-45 ¶ 88
- R. v. S.A. 2023 QCCQ 973 para 121 ¶ 88
- R. v. B.J. 2023 QCCQ 2993 para 83 ¶ 88
- R. v. Iqalukjuaq 2020 NUCJ 15 para 32, paras 33 and 35, para 35 ¶ 88, ¶ 89, ¶ 118
- R. v. Wood 2021 MBQB 4 para 48 ¶ 89
- R. v. Arreak 2026 NUCJ 8 paras 64-68 ¶ 89
- Gladue Gladue, at para. 83 para 83 ¶ 91, ¶ 155
- R. v. Morin 134 Sask.R. 120 para 27, para 87, para 91 ¶ 95, ¶ 98, ¶ 267, ¶ 270, ¶ 271
- R. v. Moses 11 C.R. (4th) 357 ¶ 95, ¶ 96
- R. v. E.O. 2019 YKCA 9 para 60, para 59, para 61, paras 58-59, paras 60-66, para 30, para 34, para 162 ¶ 97, ¶ 99, ¶ 106, ¶ 266, ¶ 268, ¶ 274, ¶ 289
- R. v. Cappo 2005 SKCA 134 ¶ 97
- Sask. R. 311 Sask. R. 311, at para. 10 para 10 ¶ 97
- R. v. M.S. 2025 ONSC 2688 para 65 ¶ 97
- R. v. Pauchay 2009 SKPC 35 ¶ 97
- Sask. R. 167 Sask. R. 167, at para. 48 para 48 ¶ 97
- R. v. MacKendrick 2007 BCPC 35 paras 14-17 ¶ 97
- R. v. Lavergne 2018 ONCJ 901 paras 61-70 ¶ 97
- R. v. Van Bibber 2010 YKTC 49 paras 31-45, para 79 ¶ 97, ¶ 266
- R. v. L. (B.) 2002 ABCA 44 para 23, para 24 ¶ 98, ¶ 269
- R. v. McNabb 2014 MBPC 10 paras 13-16 ¶ 98
- R. v. S.A. 2016 ONSC 5355 paras 21 and 25 ¶ 98
- 2004 NLCA 81 2004 NLCA 81 paras 82-83, para 64 ¶ 98, ¶ 248
- Gladue Gladue, at paras. 66 paras 66 ¶ 101
- Gladue Gladue, at para. 66 para 66 ¶ 102, ¶ 119, ¶ 236, ¶ 250, ¶ 253, ¶ 294
- A.R.F. A.R.F., at para. 9 para 9 ¶ 104
- Akwesasne Justice Department Akwesasne Justice Department, at paras. 13 and 29 paras 13 and 29 ¶ 107
- R. v. Nguyen 2026 SCC 10 para 139 ¶ 108
- Pointe-Claire (City) v. Quebec (Labour Court) 24845-1997-04-24 para 61 ¶ 108
- Gladue Gladue, at para. 73 para 73 ¶ 110, ¶ 145, ¶ 147
- R. v. Sharma 2022 SCC 39 para 196, para 13 ¶ 110, ¶ 165
- Century Services Inc. v. Canada (Attorney General) 2010 SCC 60 paras 117-18 ¶ 111
- R. v. Dedam 2026 ONCJ 409 para 73, para 81, para 74, paras 10-12 ¶ 112, ¶ 113, ¶ 254
- Barton Barton, at para. 200 para 200 ¶ 117
- R. v. Hamilton 72 O.R. (3d) 1 paras 93-94 ¶ 120
- Canadian Civil Liberties Association Canadian Civil Liberties Association, at paras. 24-25 paras 24-25 ¶ 124
- Trial Lawyers Association of British Columbia Trial Lawyers Association of British Columbia, at para. 14 para 14 ¶ 124
- Gladue Gladue, at paras. 66-69 paras 66-69 ¶ 127
- Gladue Gladue, at para. 71 para 71 ¶ 128, ¶ 267
- R. v. Sheppard 2025 SCC 29 para 39, paras 38-39, para 38, para 44, para 45, para 46 ¶ 132, ¶ 150, ¶ 176, ¶ 201, ¶ 276
- A.F. A.F., at para. 134 para 134 ¶ 134
- R.F. R.F., at para. 112 para 112 ¶ 134
- R. v. Ellis 2013 ONCA 739 para 117, paras 116-17, paras 111 ¶ 135, ¶ 137, ¶ 263
- R. v. Williams 2019 BCCA 295 para 74 ¶ 136
- Azevedo v. R. 2021 QCCA 1688 para 10 ¶ 136
- R. v. Badhesa 2019 BCCA 70 para 42 ¶ 136, ¶ 260
- R. v. Nystrom 2023 BCCA 232 para 21, para 22 ¶ 136, ¶ 260
- R. v. Perry 2025 ONCA 241 para 27 ¶ 136, ¶ 260
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- R. v. Fabbro 2021 ONCA 494 para 26 ¶ 139
- R. v. Tom 2024 BCCA 239 para 40 ¶ 139
- Sherman Estate v. Donovan 2021 SCC 25 ¶ 148
- R. v. Agin 2018 BCCA 133 para 52, para 176 ¶ 150, ¶ 152
- R. v. Daniels 2023 MBCA 86 para 14 ¶ 156
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- R. v. Shropshire 24227-1995-11-16 ¶ 204
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- Wood Wood, at paras. 34-39 paras 34-39 ¶ 231
- Gladue Gladue, at para. 48 para 48 ¶ 234
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- R. v. Glada 2003 YKTC 11 para 7 ¶ 248
- R. v. Thrasher 2021 NWTSC 28 ¶ 248
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Statutes and regulations cited
-
Criminal Code ¶ 2, ¶ 8, ¶ 10, ¶ 15, ¶ 33, ¶ 34, ¶ 36, ¶ 37, ¶ 43, ¶ 50, ¶ 51, ¶ 61, ¶ 66, ¶ 75, ¶ 82, ¶ 91, ¶ 109, ¶ 125, ¶ 139, ¶ 165, ¶ 171, ¶ 180, ¶ 189, ¶ 199, ¶ 205, ¶ 223, ¶ 229, ¶ 231, ¶ 239, ¶ 240
- s. 718.2(e) ¶ 2, ¶ 4, ¶ 5, ¶ 6, ¶ 7, ¶ 8, ¶ 21, ¶ 25, ¶ 27, ¶ 28, ¶ 32, ¶ 36, ¶ 43, ¶ 45, ¶ 47, ¶ 48, ¶ 49, ¶ 50, ¶ 51, ¶ 52, ¶ 54, ¶ 57, ¶ 65, ¶ 76, ¶ 81, ¶ 85, ¶ 86, ¶ 87, ¶ 101, ¶ 102, ¶ 104, ¶ 106, ¶ 107, ¶ 108, ¶ 109, ¶ 111, ¶ 114, ¶ 116, ¶ 118, ¶ 119, ¶ 120, ¶ 124, ¶ 127, ¶ 128, ¶ 129, ¶ 131, ¶ 145, ¶ 169, ¶ 171, ¶ 173, ¶ 178, ¶ 190, ¶ 217, ¶ 218, ¶ 233, ¶ 234, ¶ 235, ¶ 236, ¶ 238, ¶ 239, ¶ 250, ¶ 254, ¶ 255, ¶ 264, ¶ 274, ¶ 286, ¶ 294, ¶ 304
- s. 718.04 ¶ 2, ¶ 3, ¶ 4, ¶ 5, ¶ 6, ¶ 7, ¶ 8, ¶ 23, ¶ 25, ¶ 28, ¶ 30, ¶ 31, ¶ 32, ¶ 35, ¶ 61, ¶ 62, ¶ 64, ¶ 65, ¶ 66, ¶ 67, ¶ 68, ¶ 69, ¶ 70, ¶ 71, ¶ 72, ¶ 74, ¶ 75, ¶ 77, ¶ 78, ¶ 101, ¶ 107, ¶ 108, ¶ 111, ¶ 112, ¶ 114, ¶ 122, ¶ 123, ¶ 124, ¶ 126, ¶ 131, ¶ 142, ¶ 153, ¶ 159, ¶ 160, ¶ 169, ¶ 171, ¶ 172, ¶ 173, ¶ 174, ¶ 175, ¶ 178, ¶ 190, ¶ 196, ¶ 197, ¶ 199, ¶ 200, ¶ 216, ¶ 217, ¶ 218, ¶ 219, ¶ 223, ¶ 224, ¶ 225, ¶ 226, ¶ 227, ¶ 241, ¶ 243, ¶ 245, ¶ 253, ¶ 254, ¶ 255, ¶ 256, ¶ 257, ¶ 258, ¶ 259, ¶ 262, ¶ 264, ¶ 275, ¶ 280, ¶ 284, ¶ 303, ¶ 306
- s. 718.201 ¶ 2, ¶ 3, ¶ 5, ¶ 8, ¶ 23, ¶ 25, ¶ 28, ¶ 30, ¶ 31, ¶ 61, ¶ 62, ¶ 64, ¶ 65, ¶ 66, ¶ 67, ¶ 78, ¶ 79, ¶ 80, ¶ 81, ¶ 82, ¶ 83, ¶ 84, ¶ 86, ¶ 87, ¶ 88, ¶ 93, ¶ 101, ¶ 107, ¶ 111, ¶ 112, ¶ 114, ¶ 116, ¶ 117, ¶ 119, ¶ 120, ¶ 153, ¶ 155, ¶ 169, ¶ 171, ¶ 172, ¶ 173, ¶ 174, ¶ 175, ¶ 178, ¶ 190, ¶ 196, ¶ 197, ¶ 199, ¶ 200, ¶ 216, ¶ 217, ¶ 218, ¶ 219, ¶ 223, ¶ 230, ¶ 231, ¶ 232, ¶ 241, ¶ 243, ¶ 246, ¶ 254, ¶ 255, ¶ 256, ¶ 258, ¶ 259, ¶ 264, ¶ 275, ¶ 280, ¶ 285, ¶ 306
- s. 718.3 ¶ 33
- s. 718 ¶ 34, ¶ 36, ¶ 71, ¶ 107, ¶ 109, ¶ 206
- s. 718(a) ¶ 34, ¶ 208
- s. 718(b) ¶ 34
- s. 718(c) ¶ 34, ¶ 72
- s. 718(d) ¶ 34, ¶ 125, ¶ 162
- s. 718(e) ¶ 34
- s. 718(f) ¶ 34, ¶ 72, ¶ 125, ¶ 208
- s. 718.01 ¶ 35, ¶ 70, ¶ 71, ¶ 75, ¶ 77, ¶ 224
- s. 718.1 ¶ 36, ¶ 109, ¶ 207, ¶ 242, ¶ 258
- s. 718.2(a) ¶ 36, ¶ 84
- s. 6 ¶ 43
- s. 718.2(a)(ii) ¶ 60, ¶ 84, ¶ 92, ¶ 284
- ss. 292.1 ¶ 61
- s. 293.1 ¶ 61
- s. 718.02 ¶ 70
- s. 24 ¶ 75
- s. 722 ¶ 91
- s. 718.2(a)(iii) ¶ 92
- s. 718.2(a)(iii.1) ¶ 92
- s. 718.2(a)(i) ¶ 92
- s. 718(2)(e) ¶ 112
- s. 724(3)(d) ¶ 139
- (e) ¶ 139
- s. 742.1 ¶ 165
- s. 268(2) ¶ 189, ¶ 305
- s. 718.2(d) ¶ 233, ¶ 258
- s. 731(1)(b) ¶ 303