Braiding Indigenous Law & Sentencing Principles: R v Cope, 2026 SCC 32

Braided sweetgrass from Bella Coola British Columbia (photo by Nancy J Turner) in the Canadian Encyclopedia

By Author(s) - Dr. Hadley Friedland, Megan Reti and Casey Caines

R v Cope, 2026 SCC 32 [R v Cope] was released on October 9th, 2026. Watch for further blogs on its effect on Gladue/Ipeelee principles, Indigenous background reports and sentencing circles, as well as gendered violence and s. 718.04 and s. 718.201 of the Criminal Code. Today, on the blog however we are looking at what the majority in R v Cope said about Indigenous law and legal traditions. 

In R v Cope, Justice O’Bonsawin, writing for the majority, reiterated the unanimous decision of the Supreme Court of Canada (SCC) in Reference re An Act respecting First Nations, Inuit and Métis children youth and families, 2024 SCC 5 [C92 Reference Case] which recognized that true reconciliation requires the “braiding together” of Indigenous law with non-Indigenous legal traditions to form a “single, strong rope” (paras 7 & 90) (para. 6). In recent years, courts across Canada have grappled with their relationship with Indigenous laws. See, for example, R v Ippak, 2018 NUCA 3; Beaver v Hill, 2018 ONCA 816; Pastion v Dene Tha’ First Nation, 2018 FC 648. The SCC, again, recognizes an opportunity to continue this work of braiding legal traditions through the use of sentencing circles for Indigenous offenders, in line with the directives found in ss 718.04, 718.2(e), and 718.201 of the Criminal Code, RSC 1985 c C-46 (para 6). The C-92 Reference case recognized the importance of not only considering, but braiding Indigenous legal orders generally, and specifically in the area of Indigenous child and family services. R v Cope explicitly expands this into the area of criminal law and contemplates the importance of considering Indigenous legal orders in this space and the braiding of Indigenous legal perspectives alongside conventional sentencing procedures. 

This complex case addresses the balance between the reconciliatory and restorative goals of Gladue/Ipeelee principles with newer explicit statutory directives to address and denounce violence against Indigenous women and girls, generally and in Intimate Partner Violence contexts. In recognition of the importance of both, the SCC in Cope found that both statutory objectives aim to address the harms of colonization and “can only be solved through the long term process of reconciliation” (para 113). To work toward this, sentencing circles can provide a better understanding of Indigenous communities and “their distinct perspectives and laws” (para 7). The SCC further recognizes that “Indigenous perspectives may well be key to effectively addressing violence in those communities and to protecting Indigenous women and girls (para 8). While a sentencing judge may consider the perspective of an Indigenous community on various questions, this consideration goes “beyond the purely pragmatic needs and capacity of the Indigenous community to include Indigenous communities’ laws, perspectives, and approaches on the sentencing process itself (para 50). The majority suggests that s 718.2(e) provides an opportunity to “braid” Indigenous law and legal traditions with Canadian sentencing law (paras 50-51) in order to more meaningfully respond to the issues of both overincarceration as well as violence against Indigenous women and girls. The majority in Cope also confirms the holding in R v Ipeelee, that judges must abandon the idea that all offenders and all communities share the same values when it comes to sentencing and, therefore, different or alternative sanctions may more effectively achieve the objectives of sentencing in a particular community (para 50; R v Ipeelee, 2012 SCC 13 at para 74). The majority also recognized that sentencing circles may allow Indigenous women and girls that have violence enacted upon them to express their views in a culturally sensitive and meaningful way during the sentencing process (para 91) and that the voice of the Indigenous victim must also be treated seriously (para 107).

What does this mean moving forward? 

This case represents another significant step in Supreme Court jurisprudence naming and recognizing the existence of Indigenous laws and legal traditions (see especially paras 6, 50, 95, 103, 104, 107, 125, 161). The majority find that sentencing circles can act as “a bridge between the criminal justice system and Indigenous models of justice” (para 107). However, the SCC is very clear that the Canadian judicial system maintains the jurisdiction for sentencing all offenders. Sentencing circles will not displace the sentencing judge’s ultimate power to determine the sentence (para 50). There is no “parallel regime” for Indigenous offenders and Indigenous perspective cannot displace a sentencing judge’s authority (para 109). See also, para. 104.

Notably, this decision was split 5:4 amongst the SCC panel. The 4 judges in the minority held that  s. 718.2(e) does not allow sentencing judges to braid Indigenous laws into sentencing (para. 238). Unlike the explicit recognition and affirmation of Indigenous jurisdiction in the child and family services context in C-92 (s. 8 and s. 18), Parliament has not conferred jurisdiction or directed judges to defer to Indigenous legal traditions in the criminal context (para. 239). The braiding analogy from the C-92 Reference Case would be “misplaced to the extent that it would limit the discretion of the sentencing judge” (para.239). 

The split on the Court indicates that reasonable people may disagree on the interpretation of current sentencing principles. In this fraught area of law, this is nothing new. If Parliament decides more clarification in one direction or the other is necessary, it remains open for them to take the necessary steps for legislative reform. For now, the majority decision affirms the application of the braiding analogy and leaves space for the legal imaginary and the possibilities of further Indigenous law application in the Courts.  

Indigenous law has and continues to be engaged within the criminal justice system. See our post on R v Chief Dsta’hyl, 2026 BCCA 176 or WLGL’s National Indigenous Justice Strategy Report for further examples of Indigenous law being raised within the criminal context. The R v Cope decision reaffirms its importance and leaves open the door for important discussion on how Indigenous law may be braided within the criminal justice system to respond meaningfully to the issues of restoring good relations, including safety, within communities.