John Carpay: Supreme Court case on Indigenous domestic violence proves racial sentencing is absurd

On October 9, 2026, the Supreme Court of Canada rendered a lengthy judgment in R. v. Cope, grappling with provisions in Canada’s Criminal Code that govern the sentencing of Aboriginal offenders, and how sentences should be imposed when the crime victim is Aboriginal.

The tragic facts before the Court arose in Halifax in 2021, when Harry Cope brutally attacked Brittany Sack, his common law partner. A video recording documented a vicious, prolonged beating, during which Harry repeatedly punched and kicked Brittany. Found lying on the sidewalk, Brittany had a broken bone in her face, a possible break in her breastbone, pooling of blood under the skin of her breastbone and significant swelling of her eye.

Harry Cope had experienced poverty, abuse and a violent alcoholic father during his chaotic, traumatic childhood. His mother’s subsequent partners also abused alcohol. Harry was introduced to drugs by his father at age 10. He was bullied at school, struggled with learning disabilities, started using cannabis and alcohol on a daily basis and dropped out after Grade 10. He resorted to crime to support his dependency on prescription pills and street drugs.

Both Harry Code and Brittany Sack are Aboriginal Canadians.

In 1995, Parliament added section 718.2(e) to the Criminal Code, requiring judges to consider “all available sanctions other than imprisonment, that are reasonable in the circumstances … with particular attention to the circumstances of aboriginal offenders.” Parliament noted the fact that nearly one third of inmates in Canadian jails were Aboriginal, while making up about 5 per cent of Canada’s population.

In 2012, the Supreme Court asserted in R. v. Ipeelee that “Section 718.2(e) of the Criminal Code has not had a discernible impact on the overrepresentation of Aboriginal people in the criminal justice system,” and that “the overrepresentation and alienation of Aboriginal peoples in the criminal justice system has only worsened.” The Court blamed “colonialism” and residential schools for the “lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples.”

In 2019, Parliament added sections 718.04 and 718.201 to the Criminal Code. Section 718.04 requires judges to focus on denunciation and deterrence when sentencing an offender who abused a vulnerable person — especially someone who is female or Aboriginal. Section 718.201 requires judges to consider “the increased vulnerability of female persons …giving particular attention to the circumstances of Aboriginal female victims” when sentencing an offender guilty of abusing an intimate partner.

When imposing a sentence on Harry Code, trial judge Christine Driscoll had instructions from the Criminal Code that victimizing Aboriginal women and Aboriginal intimate partners (like Brittany Sack) should lead to a harsher sentence that emphasizes denunciation and deterrence. She also had instructions from the Criminal Code that Aboriginal offenders (like Harry Code) should not be jailed, or (if jailed) should receive a lighter sentence.

Driscoll imposed a five-year jail term. The Nova Scotia Court of Appeal reduced the sentence to three years, ruling that she had given too little consideration to Criminal Code section 718.2(e), and too much consideration to sections 718.04 and 718.201. Neither the Supreme Court’s majority (which agreed with the Court of Appeal) nor the dissent (which agreed with the trial judge) brought much clarity to these contradictory, race-based provisions in Canada’s Criminal Code.

In light of the fact that Canada’s judges have always been required to consider the unique circumstances of each crime, each victim and each offender, why introduce race, ethnicity or ancestry into the Criminal Code in the first place?

Those supporting race-based distinctions in the Criminal Code sincerely desire to help Aboriginal Canadians thrive and prosper. However, as the Supreme Court asserted in Ipeelee in 2012, the rates of Aboriginal incarceration have increased since Parliament added section 718.2(e) to the Criminal Code in 1995.

Reconciliation between Canadians of differing ethnicities requires focusing on our shared humanity, rather than what divides us. Treating Aboriginal Canadians differently from other ethnic groups in Canadian law has proven to be a colossal failure. It’s high time for Canada to embrace the principle of equal rights for all and special privileges for none.

National Post

John Carpay, B.A., LL.B. is president of the Justice Centre for Constitutional Freedoms.