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Gladue Reports in the Age of R. v. Cope

  In my previous blog post, I examined the Supreme Court of Canada's recent decision in R. v. Cope . Here, I argue that the Court's reasoning exposes an important structural gap in contemporary sentencing law: while Canadian courts have developed increasingly sophisticated mechanisms for understanding Indigenous offending, they have developed comparatively few mechanisms for understanding Indigenous victimization through an Indigenous legal and restorative lens. Section 718.2(e) of the Criminal Code requires sentencing judges to consider all available sanctions other than imprisonment, with particular attention to the circumstances of Indigenous offenders. The provision has been interpreted expansively in light of Parliament's effort to address the severe over-incarceration of Indigenous peoples in Canada. Its application requires courts to acknowledge the historical and systemic factors contributing to Indigenous involvement in the criminal justice system. In this respe...
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How the Law is Dealing with Indigenous Vulnerability to Victimization

In the words of the Alberta Court of Appeal, “there is clear and overwhelming evidence that, when it comes to protecting Aboriginal women from violence and discrimination, more needs to be done.”[1] Indigenous women are almost three times more likely to experience violent victimization than non-Indigenous women, and their homicide rate is six times higher. Given these disproportionate rates of violence and homicide, advocates have urged that an offender's victimization of an Indigenous woman be expressly treated as a sentencing factor:  The sad fact is that Aboriginal women are disproportionately affected by domestic violence and violence in general and this reality should inform the sentencing process if there is to be any hope of achieving the fundamental purpose of sentencing and meeting the objectives set out in section 718 of the Criminal Code , which include denunciation and deterrence.[2] In 2019, Parliament responded by amending the Criminal Code to mandate that se...
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New Jordan Law from the SCC: Sentencing Delay Under section 11(b) of the Charter

The Criminal Code requires that sentencing must take place “as soon as practicable” after guilt is found (section 720, Criminal Code); however, until recently, the constitutional boundaries governing the length of the post-verdict sentencing process remained open. In R. v. Jordan , the Supreme Court of Canada articulated a framework for determining whether the length of a criminal trial infringes s. 11(b) of the Canadian Charter of Rights and Freedoms , establishing presumptive ceilings of 18 months in provincial courts and 30 months in superior courts. However, the Jordan ceilings do not govern the entire lifecycle of a criminal proceeding; they apply strictly to the period between the laying of the charge and the actual or anticipated end of evidence and argument at trial. Up to now, the Court had not imposed presumptive ceilings for delays at any other stage. That changed with the Court's ruling in R. v. R.B.-C., 2026 SCC 30 (CanLII) , which addressed how to assess the rea...
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Location: Toronto, ON, Canada
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The “state of mind exception” to the hearsay rule

Pursuant to the traditional, fixed, “state of mind exception” to the hearsay rule exception, an out-of-court statement made by a person may be admitted if it discloses their relevant, present existing state of mind, and the statement was made in a natural manner and not under circumstances of suspicion.  FN1. Evidence satisfying this exception will be  prima facie  admissible, but only “in order to demonstrate the intentions or state of mind of the declarant at the time the statement was made”. FN2. Statements admitted pursuant to this exception cannot be used to establish the past acts or events that the statements describe. FN3 The hearsay exception in action R. v. Griffin provides an example of the hearsay exception in action. In that case, the sole issue at trial was the identity of P’s killer.   P was in hiding in the weeks leading up to his murder and during this time stated to his girlfriend, “If anything happens to me it’s your cousin’s family.” ...
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