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 are the foundation of restorative justice and that Indigenous laws and legal traditions must be braided with Criminal Code provisions as part of the sentencing process.
In this second post of our series, we discuss three key implications of this decision. Our first post provides an overview of the decision and is available here.
In Cope, the Supreme Court of Canada considered the sentence of an Indigenous man convicted of assaulting his Indigenous intimate partner. The Court was divided over several significant questions, including the role of sentencing circles, whether the legal principle of “braiding” Indigenous law with Canadian and international law applies in criminal law cases, and how provisions aimed at reducing Indigenous overincarceration fit with those protecting Indigenous women and girls as victims of violence.
We see the majority’s decision as a source of helpful guidance on how courts should engage with Indigenous laws and legal processes in a wider variety of cases than ever before.
1. Courts need to braid Indigenous laws in cases beyond Indigenous child and youth wellbeing
The Court in Cope affirmed and expanded upon the doctrine of “braiding” Indigenous laws, first articulated in the Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5. In that case, the Court considered the doctrine of braiding when interpreting federal Indigenous child and youth wellbeing legislation. The Court held that “braiding together” Indigenous law with non-Indigenous legal traditions serves true reconciliation by forming a “single, strong rope”.
In Cope, the Court confirmed that braiding applies in criminal law cases and opens the door further to braiding in other legal contexts involving Indigenous people. While the Court stated that braiding does not transfer sentencing jurisdiction to Indigenous communities or require judges to defer to Indigenous legal traditions, this decision confirms that braiding is a doctrine and framework of general application.
Here, the Court held that braiding is consistent with the purposes of sentencing circles, the project of reconciliation, and that it is “firmly rooted in s. 718.2(e)… [and] furthers Parliament’s direction in the Criminal Code…”. In other words, where there are places and opportunities for braiding, the doctrine may be a useful tool for bringing Indigenous laws and legal perspectives into the courtroom. That said, the dissent would have treated braiding as a more limited “analogy,” so it remains to be seen how this will be implemented by lower courts.
2. Sentencing circles are processes that bring an Indigenous legal lens into the courtroom, not merely a source of information
The Court rejected the idea that sentencing circles are simply a source of information about the offender, victim, and community for the sentencing judge to consider along with other sources of relevant information. Instead, the Court stated that a sentencing circle 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.”
What does it mean to use sentencing circle information, and the Indigenous legal context within which it is situated, as a legal lens?
In our view, the holding that braiding can offer an Indigenous legal lens on the “contextual landscape” opens the door to applications of Indigenous legal lenses to other legal and factual questions (e.g. the relevance and weight of evidence) in a variety of contexts, particularly where there is a legislative and/or regulatory framework that has the express objective of promoting reconciliation.
3. Sentencing principles relating to reducing Indigenous incarceration are not at odds with sentencing principles relating to protecting Indigenous women and girls
The Court interpreted sections 718.2(e), 718.04, and 718.201 of the Criminal Code as all sharing a reconciliatory focus. The Court stated that “[w]hen these provisions are engaged, a sentencing judge is not “choosing between the interests of Indigenous offenders and Indigenous victims.” Further, the Court stated that these provisions should not be seen “as competing remedies pulling sentencing in opposite directions, but as distinct threads woven into a common fabric.”
Cope directs courts to consider the interconnected histories of various colonial harms when dealing with issues affecting Indigenous peoples and rights. Focusing on one aspect in isolation, such as the intergenerational trauma history of the offender, without understanding the circumstances of the victim and the community, is inadequate. What may seem irrelevant to one proceeding may become relevant when viewed through an Indigenous legal lens and factual context. In our view this holding creates greater room within the legal system for context evidence as well as Indigenous laws, legal processes, and stories that help to explain this big picture.
We see the Supreme Court’s decision in Cope as another step on the path of legal reconciliation and increased enforceability of Indigenous laws. By using braiding to help bring an Indigenous legal lens, the Court in Cope provides advocates with a useful new tool in criminal cases and beyond.
This publication is intended for general information purposes only and should not be relied upon as legal advice.
