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Criminal - Indigenous (3). R. v. Cope [sentencing circles]
In R. v. Cope (SCC, 2026) the Supreme Court of Canada extensively discusses intimate partner violence (IPV) in both an indigenous offender and victim context, here in what is basically a criminal sentencing doctrine case.
Here the court considers 'sentencing circles':D. Sentencing Circles
[94] 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
[95] 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), 1995 CanLII 3999 (SK CA), 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), 1992 CanLII 2815 (YK TC), 11 C.R. (4th) 357 (Y. Terr. Ct.)).
[96] 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).
[97] 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).
[98] 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).
[99] 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
[100] 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).
[101] 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).
[102] 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.
[103] 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.
[104] 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.
[105] 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.
[106] 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).
[107] 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). . R. v. Cope [sentencing and IPV]
In R. v. Cope (SCC, 2026) the Supreme Court of Canada extensively discusses intimate partner violence (IPV) in both an indigenous offender and victim context, here in what is basically a criminal sentencing doctrine case.
At paras 55-67 the court considers the Canadian history of violence against indigenous women and girls and legal efforts to address it, and then continues with further discussion of related statutory law and current doctrine:C. Addressing Violence Against Indigenous Women and Girls (Sections 718.04 and 718.201)
[55] 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.
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(3) Section 718.04: Giving Primary Consideration to the Objectives of Deterrence and Denunciation
[68] 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. [69] 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), 1966 CanLII 979 (ON CA), 48 C.R. 296 (Ont. C.A.), and R. v. Ingram and Grimsdale (1977), 1977 CanLII 2018 (ON CA), 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.
[70] 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.
[71] 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.
[72] 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.
[73] 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).
[74] 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), 1997 CanLII 9813 (SK CA), 163 Sask. R. 29 (C.A.), at paras. 87-88). How to achieve deterrence and denunciation is a fact specific determination.
[75] 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.
[76] 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.
[77] 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
[78] 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. [79] 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.
[80] 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).
[81] 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.
[82] 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).
[83] 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.
[84] 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).
[85] 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).
[86] 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).
[87] 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.
[88] 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).
[89] 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.
[90] 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).
[91] 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.
[92] 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.
[93] 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. . R. v. Marshall [sentencing]
In R. v. Marshall (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's appeal, this after he "was convicted of one count of second-degree murder after a trial by jury".
Here the court considers criminal sentencing in an indigenous [Gladue] context:[162] The Gladue principles set out in s. 718.2(e) of the Criminal Code must be considered whenever an Indigenous offender is sentenced. Their application is individual and offence-specific: Ipeelee, at paras. 71-75. In Gladue, at para. 83, the Supreme Court held that,In all instances it will be necessary for the judge to take judicial notice of the systemic or background factors and the approach to sentencing which is relevant to aboriginal offenders. However, for each particular offence and offender it may be that some evidence will be required in order to assist the sentencing judge in arriving at a fit sentence. Where a particular offender does not wish such evidence to be adduced, the right to have particular attention paid to his or her circumstances as an aboriginal offender may be waived. [163] Gladue instructs courts that “sentencing [Indigenous] offenders, as for all offenders, must be holistic and designed to achieve a fit sentence in the circumstances.” The sentencing judge must consider the surrounding circumstances “regarding the offence, the offender, the victims, and the community, including the unique circumstances of the offender as an aboriginal person.” In other words, the sentencing judge must ask, “[f]or this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code?”: Gladue, at paras. 80-81 (emphasis in original). . R. v. Marshall
In R. v. Marshall (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's appeal, this after he "was convicted of one count of second-degree murder after a trial by jury".
The court considered a Corbett-CEA s.12 application, here in an indigenous defendant context:b. The Legal Principles to Be Applied on a Corbett Application Brought by an Indigenous Offender
[46] Evidence of “bad character” unrelated to the charge for which the accused is on trial is generally inadmissible at trial: Corbett, [at p. 725, per La Forest J. (dissenting, but not on this point); R. v. D.S., 2024 ONCA 831, at para. 24.
[47] However, s. 12 of the Canada Evidence Act, R.S.C., 1985, c. C-5, creates a legislative exception to this rule by permitting a witness, including an accused person who chooses to testify, to be cross-examined on their criminal record. Accordingly, “cross-examination on the accused’s criminal record will be the usual course”: R. v. R.D., 2019 ONCA 951, 382 C.C.C. (3d) 304, at para. 13, citing R. v. P. (N.A.) (2002), 2002 CanLII 22359 (ON CA), 167 O.A.C. 176 (C.A.), at para. 20.
[48] The presumptive admissibility of prior convictions rests on the theory that they are relevant to credibility. Prior convictions are used, along with other evidence, to assess a witness’ credibility as “[t]here can surely be little argument that a prior criminal record is a fact which, to some extent at least, bears upon the credibility of a witness … a fact which a jury might take into account in assessing credibility”: Corbett, at p. 685.
[49] An accused person with a criminal record who testifies is not, however, like any other witness. In King, at para. 141, this court explained that:[T]he concern is that when their criminal record follows them to the witness stand there is a risk that the convictions will be used not only to assess credibility but also for an improper line of reasoning: that the accused’s prior offending conduct means that they are the type of person to have committed the offence with which they are now charged. [50] An accused is therefore entitled to bring a Corbett application to seek to edit or exclude entirely, their criminal record.
[51] The starting point on a Corbett application is that juries should receive all relevant information accompanied, when necessary, by a clear limiting instruction regarding the use that can be made of the tendered record: Corbett, at p. 691. However, if the trial judge is satisfied that the prejudicial effect of a conviction will outweigh its probative value, the trial judge may exercise discretion to exclude that conviction and the Crown will only be entitled to cross-examine the defendant on the admissible convictions: Corbett, at p. 692; P. (N.A.), at para. 17.
[52] In this context, the probative value of a conviction is informed by “the connection between the fact of the prior conviction and the credibility … of the accused”, while the prejudicial effect arises out of the potential for propensity reasoning that jurors may engage in, once they are made aware of that conviction: King, at para. 176.
[53] Whether and to what extent a trial judge may edit a record depends on case-specific circumstances including: (i) the nature of the previous convictions; (ii) the similarity of the previous convictions to the matter under prosecution; (iii) the remoteness of the previous convictions; and (iv) the need to prevent an unbalanced picture being presented to the jury: Corbett, at pp. 698 and 740-44. The nature of a previous conviction directly affects the extent to which it bears upon credibility: Corbett, at pp. 685-86.
[54] Most notably, convictions for crimes of dishonesty provide circumstantial evidence that the accused has a dishonest character and may demonstrate contempt for laws: King, at para. 140. Convictions for other types of crimes, however, may also bear upon credibility because they may demonstrate a lack of trustworthiness as evinced by an enduring disrespect for the law: King, at para. 140; Corbett, at p. 686, citing State v. Duke (1956), 123 A.2d 745 (S.C.N.H.), at p. 746.
[55] This court confirmed that Gladue principles apply in the context of a Corbett application brought by an Indigenous accused to guide a trial judge’s determination of “whether it would prejudice an accused’s right to a fair trial to admit into evidence some or all of the accused’s criminal record”: King at para. 171. Where there are unique systemic or background factors that may have played a part in bringing the Indigenous offender before the courts, judges must take those factors into consideration. They may also consider broader systemic factors affecting Indigenous people more generally: see Gladue, at paras. 66 and 83-84; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 59.
[56] Such factors, where applicable, are to be considered when determining the degree to which a prior conviction of an Indigenous accused will assist in advancing the credibility inquiry, or the probative strength of the conviction-to-credibility inference. They are intended to supplement, not to replace the “long-applied guiding criteria set out in Corbett”: King, at para. 192.
[57] When weighing the probative value of a given conviction, judges should consider whether the accused has proffered evidence to “demonstrate that the systemic and background factors affecting Indigenous people in Canada is tied in some way to the particular accused and the conviction.” This is a contextual inquiry to “[allow] the trial judge to determine whether the accused’s criminal record makes it more likely that the accused is not the type of person to tell the truth or respect the authority of the law, or whether the impact of the experience of racism on this particular accused’s life renders the credibility inference so tenuous that admission of the conviction is gutted of its probative value”: King, at paras. 179-92.
[58] When assessing prejudicial effect, trial judges must “consider whether in the context before them, the accused is at elevated risk of prejudice because of racist stereotypes” that relate to credibility, worthiness and criminal propensity, which “cause analytical problems in applying the law and may prevent triers of fact from assessing the credibility of Indigenous people fairly and accurately”: King, at paras. 194, 196.
[59] There need not be evidence of a direct causal link between a conviction and the systemic racism experienced by Indigenous people, but “there must be some evidence to support the circumstances that have impacted the accused’s life”. The focus must remain on preserving the fair trial right by placing evidence before the trier of fact that will assist their credibility assessment, without risking improper propensity reasoning. As such, “[w]hat the accused must do within the Corbett voir dire is … demonstrate that the systemic and background factors affecting Indigenous people in Canada is tied in some way to the particular accused and the conviction”: King, at paras. 182-84.
[60] Applying the Gladue principles on a Corbett application does not necessarily direct a different result, nor is it intended to redress broad social problems or remedy past disadvantage. Instead, “it is intended to advance trial fairness by permitting trial judges to take all relevant factors into account – factors that might otherwise be overlooked – when exercising their discretion to exclude evidence that is more prejudicial than probative”: King, at para. 175.
[61] King thus reaffirms the Corbett framework, while recognizing that Gladue principles inform the analysis. It represents an elaboration, not an abandonment, of the Corbett framework. King directs trial judges to continue to apply the familiar and established principles set out in Corbett, but in a way that is sensitive to the systemic and background factors that may have affected a particular Indigenous accused’s path to the court.
[62] On an appeal from a Corbett application, deference is owed to the trial judge’s exercise of discretion in editing the criminal record, unless the trial judge made an error in principle, misapprehended the evidence, or exercised his discretion unreasonably: R.D., at para. 13; P. (N.A.), at para. 17; and R. v. Mayers, 2014 ONCA 474, at para. 3.
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