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Introduction
In early 2025, the Supreme Court of Canada (“SCC”) granted leave to appeal [41431] the decision in R v Cope, 2024 NSCA 59 [Cope], a split decision from the Nova Scotia Court of Appeal (“NSCA”). The primary question of law on appeal concerns how sentencing judges should balance the reconciliatory imperatives of R v Gladue [1999] 1 SCR 688, and R v Ipeelee 2012 SCC 13, with Parliament’s emphasis on denunciation and deterrence as primary considerations in cases involving violence against Indigenous women.
On appeal, the NSCA was split sharply. The majority reduced a five-year penitentiary sentence to three years, holding that the sentencing judge underemphasized the offender’s mental illness and Gladue factors in the proportionality analysis. In dissent, Scanlan J.A. warned that the majority had effectively reweighed the sentencing factors, contrary to the judicial deferential standard articulated in R v Lacasse, 2015 SCC 64 [Lacasse].
With leave granted, the SCC must grapple with more than a difference of opinion on the length of a sentence. Cope presents the SCC with an opportunity—and perhaps an obligation—to clarify the internal architecture of Canadian sentencing law. The outcome of the decision will inform how courts will grapple with proportionality, systemic harm, denunciation, and appellate review in cases involving Indigenous offenders and Indigenous victims.
Facts and Background
The initial assault in this case occurred on June 27, 2021, when Harry Cope, a Mi’kmaq man, attacked his Indigenous intimate partner, Brittany Sack. Ms. Sack sustained serious facial injuries, including an orbital fracture, and endured other significant physical and psychological harms (Cope, para 10).
The initial offence occurred against a backdrop of substance use, relational instability, and entrenched personal difficulties. Mr. Cope had a lengthy criminal record, “spanning 16 years from 2001 to 2017 with convictions for significant violence, weapons, and breaching court orders” (Cope, para 26). His record was relevant not only to his moral culpability but also to the principles of deterrence and protection of the public. In fact, the trial judge opined that the appellant “demonstrated an inability to manage his mental health and substance abuse issues, and therefore, his dangerousness” (Cope, para 26).
At the same time, Mr. Cope’s personal history reflected the systemic realities that animate Gladue jurisprudence. A Gladue report detailed Mr. Cope’s extensive history of abuse in the family from his father, as well as his mother’s subsequent partners. As a child, Mr. Cope experienced bullying in his community and struggled with learning disabilities in school (Cope, paras 122-125). In addition, his “prescription drug abuse began early, following his father introducing him to Dilaudid” (Cope, para 126). As the trial judge noted, these were not incidental personal failings; they were situated within the broader social and historical context of intergenerational trauma among Indigenous Canadians.
On October 8, 2022, a sentencing circle was convened. Community members and participants emphasized accountability through healing and culturally grounded support. Participants in the circle “did not feel that further incarceration was necessary for Mr. Cope” and the circle recommended community-based services that “were carefully deliberated to provide Mr. Cope with a holistic approach to address the harm that was committed” (Cope, para 57).
Judicial History
Trial Court
At trial, the sentencing judge imposed five years’ imprisonment for aggravated assault, along with eight months for the breaches of court orders, and credited Mr. Cope for time spent in remand (Cope, para 32).
In her reasons, the judge expressly considered Mr. Cope’s background; she acknowledged that systemic and intergenerational factors reduced his moral blameworthiness to some extent (Cope, para 25). However, the judge placed substantial weight on the seriousness of the assault, the harm inflicted, and Mr. Cope’s prior record. Central to her reasoning was Parliament’s enactment of ss. 718.04 and 718.201 of the Criminal Code, RSC 1985, c C-46 [Code], which directs sentencing judges to give particular consideration to denunciation and deterrence where violence is committed against Indigenous women. The judge interpreted this as a legislative signal that such offences demand a clear and forceful denunciatory response (Cope, para 17).
Balancing all relevant factors, the sentencing judge concluded a significant penitentiary term was necessary to satisfy the purposes of sentencing that applied to Mr. Cope’s offence. In effect, the judge was “not persuaded the appellant should receive a community-based sentence” (Cope, para 30). As a result, while Gladue factors mitigated his moral culpability, the weight that was given to the need to denounce such offences and to deter their future occurrence outweighed the consideration of those mitigating factors.
Court of Appeal
At the NSCA, Mr. Cope raised four issues (Cope, para 33). Namely, whether:
- The sentencing judge erred in law by failing to apply Gladue principles in a meaningful way so as to have an impact on the sentence, as required under section 718.2(e) of the Criminal Code.
- The sentencing judge erred in law and principle by placing minimal weight on the Indigenous Sentencing Circle and subsequent sentencing recommendations.
- The sentencing judge erred in law by overemphasizing denunciation and deterrence by relying on sections 718.04 and 718.201 and underemphasizing section 718.2(e) of the Criminal Code.
- The sentencing judge erred in law and principle, with a resultant impact on sentence, by: placing minimal weight on the state of the offender’s mental health at the time of the offences.
Writing for the majority, Derrick J.A. allowed the appeal and reduced the sentence to three years’ imprisonment followed by probation (Cope, para 180). The majority held the sentencing judge committed an error in principle by underemphasizing Mr. Cope’s mental illness and addictions within the Gladue framework. The court further opined that the sentencing judge had erred in principle by placing inadequate weight on the applicable Gladue factors (Cope, para 35). In addition, the majority examined the role of proportionality as “the fundamental principle of sentencing” and warned that “the broad discretion owed to a sentencing judge’s assessment of what constitutes a proportionate sentence in a particular case is not unfettered” (Cope, paras 41-42). Derrick J.A. noted the importance of Mr. Cope’s history of substance abuse, mental illness, and other Gladue factors to reaching an appropriate sentencing decision in this case. In his view, the sentencing judge failed to appropriately assess and balance these factors (Cope, para 107).
In dissent, Scanlan J.A. maintained the sentencing judge committed no error in principle and was entitled to deference under Lacasse. As such, the dissent opined that the majority decision “fail[ed] to give the sentencing judge’s decision the deference it should be accorded by law” (Cope, para 180). Ultimately, Scanlan J.A. asserted that disagreement over the appropriate weighing of factors could not amount to an error in principle and does not justify appellate intervention. Scanlan J.A. 's dissent additionally engaged in extensive discussion surrounding the role and processes of Indigenous Sentencing Circles as imperative aspects of the sentencing process (Cope, para 187). Nevertheless, the dissent highlighted the authority of Lacasse to uphold that appeal courts may not interfere lightly with a sentence imposed by a trial judge. In Scanlan J.A.’s view, the sentence was appropriately victim-focused, emphasizing both the vulnerability of the complainant and the broader vulnerabilities faced by Indigenous women in intimate partner contexts (Cope, para 187).
Analysis
Cope fundamentally questions how sentencing courts are to balance the reconciliatory promises of Gladue and Ipeelee with Parliament’s directive that denunciation and deterrence must receive primary consideration in cases of violence against Indigenous women. Both the majority and the dissent affirm proportionality as a governing principle of justice and accept the authority of Lacasse. Their divergent applications, however, expose a deeper tension in Canadian sentencing jurisprudence—one concerning the limits of Gladue’s mitigating impact, the force of “primary consideration,” and the role of deference in determining errors in principle.
Of particular importance is the supposed tension between case law and parliamentary amendments. Gladue and Ipeelee frame s. 718.2(e) as remedial and transformative, requiring courts to confront systemic disadvantage and to approach sentencing with restraint. Parliament’s amendments in ss. 718.04 and 718.201, by contrast, respond to systemic violence against Indigenous women by emphasizing denunciation and deterrence.
Per the majority’s reasoning, acknowledgment of the Gladue factors alone is insufficient. Appellate courts may intervene where systemic factors are insufficiently integrated into the moral culpability analysis and thus, weighed inadequately.
Nonetheless, the dissent’s warning about deference cannot be overlooked. Lacasse affirms that sentencing is discretionary and appellate courts should not intervene absent clear error. If the SCC affirms the majority, it may signal a novel understanding of error in principle—one that treats insufficient integration of systemic factors as reviewable.
The task before the SCC is to clarify whether these provisions are complementary promises towards systemic reconciliation efforts, or whether they create a recalibrated hierarchy in sentencing for cases of intimate partner violence against Indigenous women. Perhaps most fundamentally, this significant tension presented to the SCC is a consequence of two interrelated systemic realities within Canadian sentencing: the over incarceration of Indigenous offenders and the under-protection of Indigenous women. Each is the result of colonial legacy, and each demands reconciliation efforts and correction. If denunciation is to receive “primary consideration,” how does that imperative operate against the principle of proportionality?
In answering this appeal, the Court will define how Canadian sentencing law responds to “offences involving the most vulnerable in our society”, and clarify the place of reconciliation, denunciation, and proportionality within that response (Cope, para 210).