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. This crisis prompted calls for a victim’s status as an Indigenous woman to be a primary consideration in sentencing:

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 sentencing judges recognize and account for the heightened vulnerability of victimized Indigenous women [3]:

Additional consideration — increased vulnerability

718.201 A court that imposes a sentence in respect of an offence that involved the abuse of an intimate partner shall consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims.

Objectives — offence against vulnerable person

718.04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.[5]

Following these amendments, the Supreme Court of Canada in R. v. Friesen (2020) affirmed and expanded this contextual approach to vulnerability, recognizing that “when a child victim is Indigenous, the court may consider the racialized nature of a particular crime and the sexual victimization of Indigenous children at large in imposing sentence.”[4]

Most recently, in R. v. Cope, the Supreme Court of Canada (Justice O'Bonsawin, writing for the majority) interpreted ss. 718.04 and 718.201 in tandem, emphasizing that:

“[W]hen an Indigenous woman is a victim of a crime, primary consideration must be given to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence (s. 718.04). This concern is amplified when... the act of violence is inflicted on an intimate partner (s. 718.201), a pernicious and qualitatively distinct form of harm this Court has said the law must do more to address.”[5]

The law’s response to intersectional victimization, specifically victimization informed by the intersection of gender and Indigeneity, is an important step forward. However, by elevating denunciation and deterrence as the primary tools to address the victimization of Indigenous women and children, statutory frameworks risk relying on an overly blunt instrument.

The mandated priority given to denunciation and deterrence under ss. 718.04 and 718.201 pulls in a distinct direction from section 718.2(e) of the Criminal Code, which requires sentencing judges to consider all available sanctions other than imprisonment, with particular attention to the circumstances of Indigenous offenders.

In R. v. Cope, the Supreme Court directly confronts this tension, offering a legal methodology for judges tasked with sentencing an Indigenous offender for the criminal victimization of an intimate partner who is also Indigenous. In my next post, I will examine and assess this methodology.

 

Stuart O’Connell is a criminal defence lawyer and a victims’ rights lawyer based in Toronto.  A former law professor and current federal tribunal adjudicator and panel chair, Stuart writes and lectures on criminal justice reform.

 

 Footnotes

[1] R v AD, 2019 ABCA 396 at para 26.

[2] Tina Hotton Mahony, Joanna Jacob & Heather Hobson, “Women and the Criminal Justice System” in Women in Canada: A Gender-based Statistical Report (Statistics Canada, 2017) at 8, online: Statistics Canada.

[3] An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, SC 2019, c 25.

[4] R. v. Friesen, 2020 SCC 9 at para 70.

[5] R. v. Cope, 2026 SCC 32 (CanLII), at para 3.

 

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