On October 9, 2026, the Supreme Court of Canada released its landmark decision in R. v. Cope, 2026 SCC 32, a criminal case with wide-ranging implications for Indigenous peoples in the criminal justice system and for Indigenous law more broadly.
Katherine Hensel and Adam Wheeler of Fogler, Rubinoff LLP appeared on behalf of the Indigenous Bar Association in Canada, successfully arguing that Indigenous laws underpin restorative justice and should be braided with Canadian legal traditions in the sentencing process.
In this first post of a multi-part series, we provide an overview of the decision. Stay tuned for our next post on some of the key implications of this decision beyond criminal law.
Background
Mr. Cope, an Indigenous man, was charged with aggravated assault against his intimate partner, a member of the same First Nation. The provincial court participated in a sentencing circle as part of the sentencing process. The sentencing circle brought forward a comprehensive, culturally grounded plan that had been developed with Indigenous agencies to address Mr. Cope’s mental health and substance use challenges. The sentencing circle also recommended a conditional sentence order to support this plan. The sentencing judge subsequently rejected the sentencing circle recommendation and imposed a five-year penitentiary sentence.
Mr. Cope appealed to the Nova Scotia Court of Appeal, arguing that the sentence was unfit. The majority of the Nova Scotia Court of Appeal reduced the sentence to three years and provided guidance on how sentencing judges should engage with sentencing circles. The dissenting judge would have upheld the original sentence.
Positions before the Supreme Court of Canada
The Crown further appealed the decision to the Supreme Court of Canada, seeking to restore the original sentence. The Crown argued that the decision failed to adequately apply s. 718.201 of the Criminal Code, thereby failing to protect the Indigenous victim, and that sentencing circles are simply one source of information in pursuit of this goal. Mr. Cope argued that appellate intervention was appropriate in light of his mental health challenges and the failure to engage with sentencing circle recommendations. Mr. Cope also argued that ss. 718.201 and a related provision concerning intimate partner violence are not in conflict with sentencing factors aimed at understanding the systemic and background circumstances of Indigenous offenders.
Several interveners, including the Indigenous Bar Association in Canada, intervened to comment on the interaction between the various Indigenous-specific provisions of the Criminal Code and the approach that should be taken in sentencing circles, among other issues.
Supreme Court of Canada Decision
The Supreme Court of Canada split 5-4, with the majority dismissing the appeal and upholding the reduced sentence for Mr. Cope.
The majority ruled that Indigenous overincarceration and the victimization of Indigenous women are not competing considerations. Instead, the majority emphasized that justice for Indigenous peoples requires an understanding of how both of these issues are interconnected through colonization.
On this basis, the majority set out a three-step sentencing framework that considers:
- the circumstances of both the Indigenous offender and the victim;
- denunciation and deterrence, alongside other relevant sentencing objectives; and
- sentencing procedures and sanctions appropriate to the offender’s Indigenous identity and community perspective, recognizing that sentencing circles can provide “powerful insight.”
Drawing upon the Court’s earlier jurisprudence on the importance of braiding Indigenous laws, the majority held that section 718.2(e) of the Criminal Code directs judges to “braid” Indigenous laws into the sentencing process but do not displace the judge’s responsibility to impose a fit sentence.
The majority further noted that sentencing circles are more than just a source of information. The majority held that sentencing circles provide a mechanism for bringing Indigenous community perspectives, cultures, and laws into sentencing. Their use and weight during sentencing remain discretionary, but a failure to meaningfully engage with a sentencing circle’s recommendations may constitute reversible error.
The dissent held that the reduced sentence did not prioritize denunciation and deterrence where victims are vulnerable. It also rejected the majority’s view that section 718.2(e) permits the braiding of Indigenous and Canadian law, noting that sentencing judges retain the ultimate discretion in sentencing in accordance with the Criminal Code. It held that the failure to implement a sentencing circle’s report and recommendations cannot, on its own, amount to a legal error.
The Cope decision provides clear instruction to criminal lawyers and judges on the proper approach to sentencing in cases involving Indigenous people, but it also provides helpful guidance on the role of Indigenous laws and braiding in cases outside of criminal law.
Stay tuned for part two of this series, where we will discuss these implications for Indigenous laws and braiding in more detail.
This publication is intended for general information purposes only and should not be relied upon as legal advice.
