Supreme Court delivers landmark decision on Indigenous offenders and victims

[daftandbarmy]

Hoo boy...

Supreme Court delivers landmark decision on Indigenous offenders and victims​

Canada’s top court ruling upholds decision to reduce Mi’kmaw’s man sentence

A Supreme Court of Canada decision on Friday has clarified the factors that judges should account for when a defendant and victim are both Indigenous.

The landmark case, R. v. Cope, concerns Harry Arthur Cope, a Mi’kmaw man from Nova Scotia who pleaded guilty to assaulting his partner, a Mi’kmaw woman, in 2021.

The Supreme Court weighed in on a trial judge’s decision to sentence Cope to five years in prison and the Nova Scotia Court of Appeal’s decision to reduce that sentence to three years.

On Friday, the Supreme Court upheld the Nova Scotia Court of Appeal’s ruling, which accounted for Cope’s mental illness and substance use.

“The sentencing judge should have linked the mental health factor to the offender’s moral blameworthiness on the aggravated assault offence, but failed to do so,” wrote Justice Michelle O’Bonsawin, writing for the majority of the judges. “The court of appeal was therefore correct to intervene and it arrived at a just and appropriate sentence.”

Four of nine judges sided with the Nova Scotia provincial court’s original ruling, which dismissed recommendations from community members who proposed no further jail time and opted for a treatment program instead.

Anne Crawford, an Iqaluit lawyer who handles family and domestic violence cases, said the Supreme Court judgement uplifts the role that Indigenous victims, their families and their community should play in criminal sentencing.

Supreme Court delivers landmark decision on Indigenous offenders and victims

Newspaper of record for Nunavut, and the Nunavik territory of Quebec

nunatsiaq.com

 

[Furniture]

So a white victim would have had more protection from the system, but because the victim's abuser is indigenous the victim has to face their abuser in the community sooner. Seems like a smart system that will definitely help stop the cycle of absue and trauma that creates the high rates of violence in those communities.

 

[Brad Sallows]

It sounds like Canada is evolving a multi-tier justice system. Is it correct to infer that mental health and substance use are not mitigating factors for everyone with a history of mental health and substance use issues irrespective of ancestry?

If so, that won't do.

 

[OldSolduer]

It sounds like Canada is evolving a multi-tier justice system. Is it correct to infer that mental health and substance use are not mitigating factors for everyone with a history of mental health and substance use issues irrespective of ancestry?

If so, that won't do.

It’s been multi tier since the Gladue law came into effect

 

[Eaglelord17]

Judge says stabbing death was 'senseless' as plea deal is made

The court heard a prank phone call escalated into a planned fight at Veterans Park in Rankin, ending with Brandan Pellow suffering a stab wound and later dying in hospital

www.sootoday.com

Another great example of our justice system in action.

Coles notes: native stabbed other native in chest with homemade spear killing him, gets around 4 years in prison.

 

[Jarnhamar]

Judge says stabbing death was 'senseless' as plea deal is made

The court heard a prank phone call escalated into a planned fight at Veterans Park in Rankin, ending with Brandan Pellow suffering a stab wound and later dying in hospital

www.sootoday.com

Another great example of our justice system in action.

Coles notes: native stabbed other native in chest with homemade spear killing him, gets around 4 years in prison.

Not as bad as native drinking and driving killing 12 year old girl getting house arrest 'because colonialism'.

Six Nations man sentenced to house arrest for crash that killed 12-year-old girl

A man who has pleaded guilty to dangerous driving in a crash that claimed the life of a 12-year-old girl has been sentenced to house arrest.

www.ctvnews.ca

 

[Eaglelord17]

Not just killing the 12 year old but crippling the adult as well. Brutal.

 

[FJAG]

I don't think that this qualifies as a "landmark" decision. This is a clarification of factors to be applied in the case of settled law. And a decision that went one way at trial, another on appeal and 5 to 4 at the SCC is anything but a clear pronouncement.

Gladue was landmark. This not so much.

 

[Jarnhamar]

I don't think that this qualifies as a "landmark" decision. This is a clarification of factors to be applied in the case of settled law. And a decision that went one way at trial, another on appeal and 5 to 4 at the SCC is anything but a clear pronouncement.

Gladue was landmark. This not so much.

So esentially all it's saying is if both parties are indigenous then the judge needs to take both indigenous backgrounds into account, which doesn't mean the offender will get a harsher sentence. The just just has to consider it.

 

[FJAG]

So esentially all it's saying is if both parties are indigenous then the judge needs to take both indigenous backgrounds into account, which doesn't mean the offender will get a harsher sentence. The just just has to consider it.

It went beyond mere aboriginal status to also mental illness and history of substance abuse both of which go the the issue of blameworthiness.

Note too the fact that this case took place before the recent amendments to the Criminal Code under Bill 16 "Protecting Victims Act" vis-a-vis continuous patterns of physical abuse to spouses.

 

[Jarnhamar]

Note too the fact that this case took place before the recent amendments to the Criminal Code under Bill 16 "Protecting Victims Act" vis-a-vis continuous patterns of physical abuse to spouses.

I haven't seen those before. Some nice ones in there like:

Treat murders that occur in situations involving coercive control, hate, sexual violence or exploitation as first-degree murder, the Criminal Code’s most serious form of homicide. Define these murders as femicide when the victim is a female.

And


Amend the criminal harassment offence to:

replace the requirement that the victim feared for their safety with a requirement that a reasonable person in the victim’s circumstances would fear for their safety.
ensure the offence captures harassing conduct committed through modern technology (e.g., electronic monitoring).


In the case of the former, is that a guarantee?

For example a woman is in a coercive relationship with a man, physical and sexual violence are present. Guy kills the woman. Is he automatically being charged with first-degree murder?

 

[Oldgateboatdriver]

Pretty well, yes. In the reverse, however - she kills him - as last resort while he is in a coercive fit , she likely gets charged with manslaughter.

 

[FJAG]

For example a woman is in a coercive relationship with a man, physical and sexual violence are present. Guy kills the woman. Is he automatically being charged with first-degree murder?

Only time and the courts can tell.

IMHO though this is a definitional provision of what Femicide is and what the consequence of charging are. Like many homicide cases, the question of the appropriate charge depends on what the crown reasonably believes it can prove. There is frequently overcharging followed by trials or plea agreements to a lesser included offence when the proof of an essential element that needs to be proven for the most serious charge is not supported by the evidence.

The new 231(5.1) strikes me as a tough evidentiary row for a prosecutor to hoe.

 

[Jarnhamar]

I appreciate the explanations. I’m still trying to understand what practical difference this amendment makes if the crown still has to prove the specific elements beyond a reasonable doubt and the charge ultimately depends on the evidence.

In my example if a man kills his partner in a relationship involving that coercive control and physical or sexual violence, what would the amendment change compared with the law as it was before?

Does it create a new, clearer path to a first degree murder conviction? Or does the evidence challenge you mentioned mean that relatively few cases are likely to qualify anyways?