Supreme Court case involving Indigenous could have repercussions in the North

By Samuel Wat

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

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

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

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

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

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

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

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

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

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

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

Setting a directive for Gladue reports

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

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

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

Mesher believes this Supreme Court case could also affect the way Gladue reports are delivered.

“It may have a profound effect on how the procedure of sentencing goes in Nunavut when most of our offenders and most of our victims are Indigenous and we don’t have the resources to properly highlight that according to the Canadian Criminal Code,” he said.

Tara Qunngaataq Tootoo Fotheringham, president of the Amautiit Nunavut Inuit Women’s Association, says she has seen some judges in Nunavut dismiss the need for Gladue reports, citing they understand most Nunavummiut suffer from intergenerational trauma.

“There’s not just this carte blanche idea that when you’re dealing with Inuit offenders, that they all have come from the same trauma because that’s not true,” she said.

False dichotomy

While Fotheringham supports the intent of the Gladue principles, she says she’s deeply concerned they’re being misapplied in a way that unintentionally minimizes or excuses violence.

“When Gladue factors are elevated in a way that overshadows accountability, proportionality, and public safety, the result is not justice, it is harm,” she said.

“Amautiit rejects the false framing that Inuit women must choose between supporting Gladue, demanding safety and accountability. We can and must have both.”

Mesher agrees the case isn’t about one or the other, and it reinforces the need for Canada to maintain an individualized approach to sentencing.

“That has been a hallmark of the Canadian justice system for decades, that there is that freedom to tailor things specific to the offence that the judges heard and the circumstances of everything that has happened in front of them,” he said.

Stephen Shaddock, the director of policy at Nunavut’s Justice department, says Gladue principles are applied in the territory’s correctional facilities and community justice initiatives. He also acknowledges the need to reduce the over-incarceration of Indigenous people, as well as protecting victims of gender-based violence.

“This means ensuring offenders have access to counselling and treatment to take responsibility for their actions, while also providing preventative and other supports for potential victims and survivors, such as protection orders and victim services,” he wrote in a statement.

Looking outside the courtroom

Even as a lawyer, Iqaluit’s Anne Crawford doesn’t believe changes in the judicial process will adequately protect Indigenous women.

“Women in Nunavut often state that they don’t feel they’re getting the protection of the law that other people are because Indigenous offenders are getting extra consideration,” she said.

She says because few cases of violence actually end up in the courts, she’d rather the focus be on solutions outside the courtroom.

“We’re great at determining guilt and innocence and figuring out the facts and spending all kinds of money on lawyers. But where are the resources at that moment when the family is ready to make a change,” she said.

Fotheringham also doesn’t believe incarceration is the answer, and agrees the answer has to lie in more resources to help people heal.

“We want to have healed homes in Nunavut where people can actually get the support for the whole family. Because when an offender offends, they don’t just impact themselves, they impact their family,” she said.

Related stories from around the North:

Canada: Inuit region of Arctic Quebec receives $100,000 for activities to commemorate victims of gender violence, Eye on the Arctic

Finland: Swedish-speaking Finnish women launch their own #metoo campaign, Yle News

United States: Alaska reckons with missing data on murdered Indigenous women, Alaska Public Media