In October, the Supreme Court of Canada released a historic decision in R v Cope that affirms the need for judges to carefully consider two interrelated social crises in their sentencing decisions.

They must consider the grossly disproportionate rate at which Indigenous persons are sent to jail and the grossly disproportionate rate at which Indigenous persons, especially women and girls, are victims of violent crimes.

Writing for a 5-4 majority of the Supreme Court, Justice Michelle O'Bonsawin reasoned that these are both deeply intertwined products of settler colonialism and cannot be treated as competing issues in the sentencing process. The case also highlights the importance of considering Indigenous Peoples' own laws and their perspectives at the community level.

The decision brings helpful clarity to the law, but it requires more careful thought about why Indigenous persons are overrepresented as both victims and offenders in the criminal legal system.

The origins of Indigenous sentencing reform

Across the globe, courts have struggled with the application of Western sentencing principles where crimes involve Indigenous Peoples who have their own distinct worldviews and legal traditions.

For example, in 1985, the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power highlighted Indigenous practices as a valuable way to facilitate conciliation and redress for victims.

In 1989, the Indigenous and Tribal Peoples Convention was created as an international treaty for the protection of Indigenous rights. While Canada has not signed it, it is an important benchmark in international law.

It directs governments and courts to respect Indigenous Peoples' practices for dealing with offending among their members so long as they are compatible with national law and other international human rights norms.

In Canada's North, some judges began adapting sentencing principles to the unique circumstances of Indigenous Peoples by the 1960s. Similar reforms were being attempted in many other parts of the country by the 1990s.

Sentencing circles were one of the most influential models. They started in the Yukon and Saskatchewan, but the practice quickly spread across the country and has been adopted in other parts of the world.

Sentencing circles can bring together the offender, victims who are willing to participate, elders, community members and justice officials to inform the judge's sentencing decision.

They discuss all the relevant circumstances to come up with a sentence that makes sense to those most directly impacted by the crime and its punishment. They draw on Indigenous traditions of healing circles and community deliberation. They are a paradigmatic example of restorative justice.

The federal justice minister acknowledged in 1994 that Canadian courts were sending Indigenous persons to jail at grossly disproportionate rates and proposed changes to the Criminal Code to clarify how judges should address that crisis.

In 1996, Parliament added Section 718.2(e) to the Criminal Code directing judges to consider alternatives to jail with particular attention to the circumstances of Indigenous offenders. During parliamentary debate, sentencing circles were discussed as a key example of what this could look like.

Three years later in R v Gladue, the Supreme Court fleshed out how sentencing practices needed to change. It clarified the circumstances that judges needed to consider.

These included the devastating impacts of settler colonialism on Indigenous Peoples' lives, as well as alternative sanctions and processes more in line with Indigenous Peoples' worldviews and traditions, especially restorative justice processes and community-based sanctions.

When sentencing reforms fell short

However, the sentencing circles of the 1990s which helped inspire these reforms were logistically challenging and not all judges welcomed proposals for community-based sentences.

Over time, the circles became rare in some parts of the country that were initially supportive, such as Saskatchewan. More generally, while many judges discussed the impacts of settler colonialism in their sentencing decisions, one study found they rarely discussed Indigenous legal traditions or the importance of involving the victims and communities in the sentencing process.

Some judges have raised the concern that violent offences by Indigenous persons could be taken less seriously if all it means to sentence Indigenous offenders differently is less jail time, leaving Indigenous victims and communities with less protection.

In 2019, the National Inquiry into Missing and Murdered Indigenous Women and Girls released its final report, addressing the grossly disproportionate rates of violence faced by Indigenous women and girls.

It issued numerous calls for reform of the criminal legal system, including strengthening existing approaches, such as standardizing the use of Indigenous background reports when sentencing Indigenous offenders and increasing support for community-based alternatives to jail.

The report also called on Parliament to direct judges to take violence against Indigenous women and girls more seriously in the sentencing process. That was included in legislation proposed by Senator Lillian Dyck, one of the co-authors of this article, but the House of Commons rejected it in April 2019.

The proposal was partly a response to the legal system's failure to take this violence seriously in notorious cases of non-Indigenous offenders targeting highly vulnerable Indigenous women and girls. But it also spoke to failures to consider Indigenous women and girls as victims when designing community-based sentences for Indigenous men.

Parliament did act later that year, accepting amendments proposed by Senator Dyck to the Criminal Code that directs sentencing judges to focus on deterrence and denunciation of violence against Indigenous women and girls over other objectives such as rehabilitating offenders.

A study led by Benjamin Ralston and Tamara (Baldhead) Pearl, two of the co-authors of this article, noted that some judges viewed these provisions as introducing a legal paradox with simultaneous calls for more and less prison time in cases where the offender and the victim were both Indigenous.

We argued that it would be circular reasoning if the disproportionate use of prison sentences against Indigenous offenders were treated as both the symptom and the cure for the overrepresentation of Indigenous persons in Canada's criminal legal system as victims and offenders.

How the Cope ruling reconciles two imperatives

Fortunately, in October in Cope, Justice O'Bonsawin directed sentencing judges to take a more balanced and holistic approach. She wrote that sentencing judges can let go of the assumption that violent crime can be deterred and denounced only by longer periods of incarceration. They should consider alternatives that are informed by Indigenous Peoples' legal traditions.

The Supreme Court has made it clear that the circumstances of Indigenous offenders and victims must be considered harmoniously, alongside the perspectives of their communities.

Sentencing circles have been identified as one way in which these varied viewpoints can be incorporated to work better for everyone who has to live with it, from the offender and the victim through to their families and communities.

This moment calls for reflection on the past 30 years of case law on the sentencing of Indigenous offenders. Sentencing circles were meant to better serve the needs of offenders, victim and communities.

Treating the Indigenous background of offenders and victims as just a reason to add or subtract a few weeks, months or years from a jail sentence is unlikely to meet any of these needs.

The Supreme Court has made it clear that a more holistic approach is needed. But what does that look like in practice?

More attention must now be paid to what Indigenous women and girls need to stay safe when sentences are served in the community, including a clear plan and respect for their views. Judges must consider the unique circumstances of Indigenous women and girls as victims alongside those of offenders.

But where will this information come from? Victim impact statements or more inclusive Indigenous background reports? Sentencing circles are a valuable option, but are there enough resources available for Indigenous communities to establish or revitalize restorative justice measures such as these? Will trust be rebuilt by courts taking these proposals seriously and victims being given a voice within them?

The law has been clarified, but there is a long road ahead to see it properly implemented.

This article was first published by Policy Options.