On October 9 the Supreme Court of Canada upheld a three-year sentence for Harry Arthur Cope. In June 2021, in the words of the Court’s own summary, he “attacked his intimate partner, a Mi’kmaw woman, on a sidewalk. He repeatedly punched her and threw her to the ground. She suffered serious injuries to her face and upper body.” The Crown’s filing adds that it was on video, that he smashed her face into the sidewalk and kicked her in the head, and that she lay motionless for 20 to 30 seconds. The trial judge gave him five years. Nova Scotia’s appeal court took two off. Five judges said that was right. Four, the Chief Justice among them, dissented.
Why the two years came off matters more than the number. The Court’s summary gives two reasons: the trial judge did not adequately consider how Mr. Cope’s mental illness affected his responsibility, and she “did not give enough weight to the sentencing circle and its recommendations.” Members of Mr. Cope’s community “did not recommend further jail time.” The same summary lists who sits in such a circle: members of the Indigenous community, the offender, counsel and the judge. The woman from the sidewalk is not on that list. Both sides told the Supreme Court that she took no part in the circle and filed no victim impact statement. Mr. Cope’s own lawyers say she was invited, and that a victim support worker sat in her place. LEAF, which intervened, welcomed the majority’s description of reconciliation as an “important lodestar” for sentencing.
Now run the case once more with one change. Same man. Same record, as the Crown laid it before the Court, including rifle threats and shots fired at a vehicle in 2007; a man stomped on the head and chest in 2011, leaving him with a brain bleed; and a gas-station robbery in 2017. Same illness, same guilty plea, same woman with the same injuries. Make him Irish, or Ukrainian, or anything else the state files under “white.”
Every aggravating factor stays. Beating a partner is aggravating for everyone. Parliament’s 2019 amendments tell the judge to give “primary consideration to the objectives of denunciation and deterrence” when the victim is vulnerable, “including because the person is Aboriginal and female,” and to weigh “the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims.” Those sections look at her. She has not changed.
What changes is one line, section 718.2(e) of the Criminal Code: sanctions other than prison “should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.” For the man I have described, that attention is gone, and so is the circle. My reading is that he serves the five. On the real facts, four judges would have allowed the Crown’s appeal, which asked for the five years back.
I am not disputing the text. Section 15(2) of the Charter allows any law whose object is “the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race.” Two men, one act, two sets of instructions to the judge, and the Constitution permits it on purpose. That has been true since 1985, when section 15 took effect. My question is different: who does the state think the other man is?
The sentencing law never says. It names “Aboriginal” and is silent about everyone else. Other federal documents are not silent. The Employment Equity Act defines “members of visible minorities” as “persons, other than Aboriginal peoples, who are non-Caucasian in race or non-white in colour.” Canada’s Anti-Racism Strategy, on Canadian Heritage’s website, says anti-Black racism is “either functionally normalized or rendered invisible to the larger white society.” Ontario’s Anti-Racism Data Standards repeat the phrase with a capital W and list “White” as a race beside Black, South Asian and Latino.
Ontario’s Human Rights Code, section 1, lists “race, ancestry, place of origin, colour, ethnic origin” as separate grounds. The province’s own law knows that colour is not culture. Ottawa’s statute sorts the country by colour anyway.
There is no larger white society. Statistics Canada counted more than 450 ethnic or cultural origins in the 2021 census. Inside the box marked white are the Irish who fled a famine under British rule, Ukrainians who left the Austro-Hungarian and Russian empires, Poles whose country had been divided among three empires, Italians, Finns, Portuguese, Dutch, and Jews from the Pale of Settlement. They share a colour. They do not share a history, and none of them signed a treaty. Put them in one box, write “colonial” on the lid, and you have done the thing the government’s own strategy calls racism when it runs the other way.
Here is the honest part. Every box is a lump. “Black” holds a Somali refugee and a seventh-generation Nova Scotian. “South Asian” holds Sikh and Tamil. “Indigenous” holds hundreds of First Nations, plus Inuit and Métis, who are not one people and have never claimed to be. I am not asking for my box to be treated better. I am asking the state to put the boxes down: one sentencing range, one list of aggravating factors, one standard of proof for a hard childhood, for everyone, with the woman’s injuries weighing the same whoever she is.
If that sounds radical, try a test the government can run on its own sentence. Write “rendered invisible to the larger Black society” and send it to Canadian Heritage for publication. It would not survive the afternoon. A phrase that cannot be turned around is not a description. It is a verdict on a colour.
LEAF’s brief to the Court carries a heading: “Incarceration does not make Indigenous women safer.” It told the judges that “prison contributes to recidivism” and said a 2017 Correctional Service of Canada study found that “generally Indigenous offenders who are incarcerated are more likely to reoffend than non-Indigenous offenders.” The men who go to prison are the men with records like his. That is why they went. It does not follow that two fewer years make the woman on the sidewalk safer. It means he is out sooner.
The Chief Justice of Canada read the same statute and dissented. A law that sorts Canadians by colour will keep producing results like this one and calling them reconciliation. The rest of us are allowed to dissent too.
Donald Morton is editor-in-chief of North Frontenac News Media in Frontenac County, Ontario.