The Court had to determine how ss. 718.04, 718.2(e) and 718.201 of the Criminal Code operate together when an Indigenous man is sentenced for violently assaulting his Indigenous intimate partner. It also had to decide whether the Nova Scotia Court of Appeal was entitled to intervene in the five-year sentence imposed at first instance.

The majority, in reasons by Justice O’Bonsawin, dismisses the appeal and upholds the substituted sentence of three years’ imprisonment for aggravated assault, less credit for 18 months of remand, followed by two years of probation. It holds that the sentencing judge made an error in principle that affected the sentence. Although she recognized the offender’s significant mental illness, she did not specifically examine the connection between that illness, the offence and the offender’s moral responsibility. Nor did she adequately consider how the illness affected the choice of a sentence capable of serving the relevant objectives, including rehabilitation, deterrence and public protection.

The majority establishes a three-step approach for cases engaging all three provisions. First, the judge must assess the gravity of the offence and the offender’s degree of responsibility in light of the Indigeneity of both the victim and the offender. Section 718.2(e) requires consideration of the systemic or background factors relevant to the Indigenous offender’s involvement in the criminal justice system, as well as sentencing procedures and sanctions appropriate to the offender’s Indigeneity and the community’s perspective, consistently with R. v. Gladue and R. v. Ipeelee. Section 718.201 requires consideration of the increased vulnerability of female victims of intimate partner abuse, with particular attention to the circumstances of Indigenous female victims. It does not, however, create an automatic sentence increase based solely on the victim’s Indigenous identity, nor is it limited to the statutory aggravating factors listed in s. 718.2(a).

Second, where s. 718.04 applies, the judge must give primary consideration to denunciation and deterrence of the criminal conduct. Those objectives do not exclude all other sentencing objectives: rehabilitation and other relevant considerations remain available and may receive significant weight, but cannot be given precedence or equivalency. The statutory priority does not automatically require imprisonment or a longer sentence in every case. Third, the judge must select a fit and proportionate sentence having regard to the gravity of the offence and the offender’s degree of responsibility, while considering sentencing procedures and sanctions suited to the Indigenous context. The three provisions must be applied harmoniously; neither s. 718.04 nor s. 718.201 displaces s. 718.2(e) or the principles in Gladue and Ipeelee.

The majority explains the role of sentencing circles. When a circle is held, the judge must meaningfully engage with the perspectives it expresses; it is not enough to treat the circle as merely another source of information or to mention its ultimate recommendation. The judge retains the decision-making authority and need not accept the circle’s recommendation, including where a non-custodial sentence would be inappropriate. The reasons must nevertheless show that the judge understood the perspective expressed, explain whether it was accepted or rejected, and relate that engagement to the sentence imposed. A failure to engage meaningfully with the process may amount to a failure to apply s. 718.2(e) and, depending on the circumstances, to a failure to address the victim’s vulnerability under ss. 718.04 or 718.201.

In this case, the violence of the assault and the victim’s vulnerability required a custodial sentence. At the same time, the offender’s Indigenous background factors, untreated schizoaffective disorder at the time of the offence, substance-use problems and the role of his mental illness in his conduct attenuated his moral blameworthiness and supported a shorter sentence. The sentencing circle also emphasized culturally appropriate Mi’kmaw community treatment and the likely futility of prolonged incarceration. The three-year sentence was therefore a proportionate middle ground: it denounced and deterred violence against an Indigenous intimate partner while allowing earlier access to community-based programming.

Chief Justice Wagner and Justices Côté, Rowe and Jamal dissent. They would allow the appeal and restore the five-year sentence. In their view, the sentencing judge considered the relevant factors, including the victim’s vulnerability, the offender’s violent criminal record, his Gladue factors, mental illness, addictions and the sentencing-circle recommendations. Sections 718.04 and 718.201 generally call for harsher sentences and leave few options other than imprisonment where denunciation and deterrence must be emphasized. The dissenting judges also conclude that the majority impermissibly reweighed the facts and medical evidence without a sufficient basis, and that the sentencing judge’s failure to discuss the circle in greater detail was not an error in principle warranting appellate intervention.