by Jason Tarnow | Oct 14, 2026 | Crime, Criminal Attorney, Media, Politics, Social Media, Wheels Of Justice
In Vancouver criminal defence practice, few issues generate more careful advocacy—or more public debate—than the sentencing of Indigenous offenders. On October 9, 2026, the Supreme Court of Canada delivered a closely divided 5-4 decision in R. v. Cope, 2026 SCC 32, that squarely confronts the tension between long-standing Gladue principles and the heightened emphasis Parliament has placed on denunciation and deterrence when the victim is an Indigenous woman or girl. For any Vancouver criminal defence lawyer handling aggravated assault, intimate partner violence, or other serious offences involving Indigenous clients, the ruling supplies both clearer guidance and a renewed reminder that proportionality remains the animating principle of Canadian sentencing law.
The case arose from a 2021 sidewalk assault in Nova Scotia. Harry Arthur Cope, a Mi’kmaw man with a well-documented history of severe mental illness, substance use, and the intergenerational effects of colonialism, pleaded guilty to aggravated assault after repeatedly punching and throwing his Mi’kmaw intimate partner to the ground, causing significant facial and upper-body injuries. A Gladue report and a sentencing circle organized with the Mi’kmaw Legal Support Network recommended a holistic, treatment-focused approach rather than further incarceration. The provincial court judge imposed five years’ imprisonment. A majority of the Nova Scotia Court of Appeal reduced the sentence to three years (less remand credit), concluding that the trial judge had under-weighted the connection between Cope’s mental illness, addictions, and Gladue factors when assessing moral culpability. The Crown appealed.
Writing for the majority, Justice Michelle O’Bonsawin (joined by Justices Karakatsanis, Martin, Kasirer, and Moreau) affirmed the three-year sentence and, for the first time, articulated a three-step framework for cases in which both the offender and the victim are Indigenous. The dissent (Justices Rowe and Jamal, joined by Chief Justice Wagner and Justice Côté) would have restored the five-year term, stressing appellate deference and the statutory priority of denunciation and deterrence.
The Three-Step Framework and Its Statutory Foundations
The majority’s approach rests on the harmonious application of three provisions of the Criminal Code of Canada. Section 718.2(e), in force since 1996 and interpreted in the landmark decisions R. v. Gladue (1999) and R. v. Ipeelee (2012), directs judges to pay particular attention to the circumstances of Indigenous offenders and to consider all available sanctions other than imprisonment. Sections 718.04 and 718.201, added in 2019 following the National Inquiry into Missing and Murdered Indigenous Women and Girls, require primary consideration of denunciation and deterrence when the offence involves the abuse of a vulnerable person (explicitly including an Aboriginal female) and oblige courts to consider the increased vulnerability of Indigenous female victims of intimate-partner violence.
Justice O’Bonsawin described the over-incarceration of Indigenous people and the high rates of violence against Indigenous women and girls as “two intertwined social crises,” both shaped by colonization. Addressing them together, she wrote, is “central to the ongoing process of reconciliation,” which must serve as an “important lodestar.” The three steps are:
- Assess the gravity of the offence and the offender’s degree of responsibility, taking into account the Indigenous background of both the offender and the victim (guided by Gladue and Ipeelee factors for the former and vulnerability indicators for the latter).
- Sensitively identify the relevant sentencing objectives, giving primary consideration to denunciation and deterrence under s. 718.04 while still weighing rehabilitation, restraint, and other purposes.
- Craft a proportionate and just sentence, including consideration of community-based procedures and sanctions such as sentencing circles, that respects the offender’s Indigeneity and the community’s perspective.
Critically, the majority emphasized that denunciation and deterrence are not synonyms for a longer prison term. In Cope’s case, the sentencing judge failed to explore how a lengthy custodial sentence might aggravate his mental illness and thereby undermine rehabilitation and specific deterrence. The decision also clarifies that failure to meaningfully engage with a sentencing circle’s recommendations can constitute an error in the application of s. 718.2(e), even if it is not an automatic error under the vulnerable-victim provisions.
Implications for Vancouver Criminal Defence Lawyers and Defendants
British Columbia’s courts have long been at the forefront of applying Gladue principles, given the province’s significant Indigenous population, the ongoing effects of residential schools and the child-welfare system, and the concentration of serious offences—including intimate partner violence—in urban centres such as Vancouver. The Cope framework will shape submissions in the Provincial Court, the Supreme Court of British Columbia, and the Court of Appeal.
Defence counsel should ensure that Gladue reports and any sentencing-circle materials are not treated as optional background but as integral to the proportionality analysis. Mental-health evidence, substance-use history, and the concrete impact of colonial policies must be linked explicitly to moral culpability and to the practical effects of a proposed sentence. At the same time, the vulnerability of an Indigenous female victim cannot be minimized; submissions that ignore or downplay ss. 718.04 and 718.201 risk being rejected as incomplete. The majority’s insistence that reconciliation is not a zero-sum contest between offender and victim factors gives skilled advocates room to argue for community-based or treatment-oriented dispositions where they remain proportionate, while recognizing that custody will often still be required for serious violence.
For defendants, the ruling offers a measure of clarity but no guarantee of leniency. The 5-4 split and the strong dissent underscore that appellate courts will continue to scrutinize whether a sentencing judge has genuinely integrated all relevant factors. Practitioners in Vancouver will need to prepare clients for the possibility that primary emphasis on denunciation and deterrence will still produce substantial custodial sentences, even when Gladue factors are fully considered. Early engagement with Indigenous court workers, healing centres, and mental-health resources remains essential.
Practical Takeaways
The Cope decision does not rewrite the Criminal Code of Canada, nor does it displace the fundamental requirement of proportionality. It does, however, supply a structured method for reconciling principles that many judges and lawyers had treated as conflicting. In the high-volume Vancouver criminal law environment, where Gladue reports are frequently ordered and intimate-partner violence cases are commonplace, the three-step framework should become a standard analytical tool in sentencing submissions.
Counsel should:
- Commission comprehensive Gladue reports that address both the offender’s circumstances and, where appropriate, the broader community context of violence against Indigenous women and girls.
- Explicitly map the three steps onto the facts, linking mental health, addictions, and colonial impacts to culpability and to the likely effects of particular sanctions.
- Engage seriously with any sentencing-circle recommendations and explain how they advance or fail to advance the primary objectives of denunciation and deterrence.
- Remain prepared to argue that a longer custodial term may be counterproductive when it exacerbates underlying conditions that contribute to reoffending.
The Supreme Court’s emphasis on reconciliation as a guiding principle is welcome, yet the narrow majority and the dissent’s focus on deference and statutory priority remind us that outcomes will remain highly fact-specific. Vancouver criminal defence lawyers who master the Cope framework will be better positioned to advance individualized, proportionate sentences that respect both the unique circumstances of Indigenous offenders and the serious harm suffered by Indigenous victims.
This post is for educational purposes only and does not constitute legal advice. The application of R. v. Cope depends on the specific facts of each case. Anyone facing criminal charges should consult a qualified Vancouver criminal defence lawyer or other licensed practitioner.
by Jason Tarnow | Oct 13, 2026 | Crime, Media, Police, Social Media, Wheels Of Justice
Artificial intelligence is changing how lawyers research, draft, and communicate. Courts are now confronting how it should be used in the most solemn part of a criminal case: sentencing. A recent Arizona decision shows how quickly the technology can cross a line, and why criminal defence counsel must be ready to challenge it.
What Happened in Arizona
On September 30, 2026, the Arizona Court of Appeals, Division One, vacated a 10-year manslaughter sentence imposed on Gabriel Paul Horcasitas. He was convicted in the 2021 road-rage shooting death of Christopher Pelkey. At the May 2025 sentencing hearing, the court played an AI-generated video that showed Pelkey addressing the judge and offering forgiveness. The video was created by Pelkey’s sister, who was preparing her own victim impact statement.
The appellate court affirmed the manslaughter conviction but sent the matter back for re-sentencing. Its reasoning focused on due process.
The Court’s Core Concern
The court explained that the video did not simply preserve something Pelkey had said while alive. Instead, it presented “a depiction of the victim and his thoughts created from the imaginings of the victim’s sister.” In the court’s view, the video blurred the line between what the family believed the victim would have said and what the victim actually thought.
The court also held that victim-rights protections do not override a defendant’s right to due process. A defendant must be able to test and respond to the information relied on at sentencing. An AI-generated speaker that cannot be cross-examined, and whose words cannot be traced to verified sources, presents an obvious problem.
Importantly, the ruling is not a blanket prohibition on digital media at sentencing. It addresses an AI-generated likeness presented as the voice of a deceased person, where the sentencing judge expressly relied on its content.
Why This Matters in British Columbia
The Arizona decision is not binding in Canada. It is, however, a clear warning for practitioners here.
In Canada, victims may describe the harm they have suffered through victim impact statements under section 722 of the Criminal Code. These statements are an important part of the process, and they must be handled with care. They are meant to convey the real effects of a crime on a real person’s family and community. They are not a vehicle for putting invented words into the mouth of someone who has died.
Sentencing in BC is also governed by principles of proportionality, individualized assessment, and fairness. An emotionally powerful presentation that the defence cannot meaningfully answer risks distorting that assessment.
What Defence Counsel Should Do
If an AI-generated element is proposed for a sentencing hearing in British Columbia, defence counsel should:
- Object early and in writing, so the objection is preserved for appeal.
- Request disclosure of how the material was created, who wrote the words, and what sources support them.
- Demand the right to respond, including cross-examination where appropriate.
- Seek a ruling on admissibility before the material is presented, not after.
Acting promptly protects the client’s right to a fair sentencing and protects the integrity of the process.
Respecting the Solemnity of Sentencing
Sentencing is not a stage for novelty. It is where the court decides how the state will respond to a person’s conduct, and where a family’s loss is formally recognized. Those who have been harmed deserve a process that is rigorous and honest. Those accused deserve a process that is fair, transparent, and based on evidence.
Technology will continue to develop, and courts will need to adapt. Until clear rules exist, the safest course is to keep sentencing grounded in verifiable facts and to insist that every word the court hears can be tested.
Facing a Sentencing in Metro Vancouver?
If you or a loved one is facing sentencing in Metro Vancouver, Richmond, or elsewhere in British Columbia, experienced criminal defence counsel can make a meaningful difference. Tarnow Criminal Law represents clients in all levels of Court in British Columbia and the Yukon on matters including but not limited to sexual assault, drug trafficking, impaired driving, dangerous operation, and youth criminal justice.
Contact Tarnow Criminal Law today at 604.278.0555 to schedule a confidential consultation.
This article is general information and not legal advice. Each case turns on its own facts. Speak with a lawyer about your specific situation.
by Jason Tarnow | Jan 20, 2021 | Crime, Legal Rights, Police, Social Media, Wheels Of Justice
The internet is a precarious place. We buy, we sell, we talk – and we post. And while that’s all fine and good, it isn’t without consequence. Facebook launched in 2004, and since that time Canadian Courts have addressed and analyzed evidence obtained through Facebook and other social media platforms.
Recently, in a 2-1 decision, in R. v. Martin, 2021 NLCA 1, the Newfoundland and Labrador Court of Appeal overturned a lower court’s decision deeming Facebook screenshots as inadmissible. In a 30 page decision, the Court of Appeal explained how the Provincial Court Judge (“PCJ”) had erred in their analysis of the rules of authentication in relation to the proposed electronic evidence.
The case involves allegations that the Accused, Mr. E. Martin, made threats against the Royal Newfoundland Constabulary (police), via pictures and written communication on Facebook. He was charged with being in possession of a knife for a purpose dangerous to the public peace, being in possession of a rifle for a purpose dangerous to the public peace, and uttering a threat to members of the Royal Newfoundland Constabulary.
The police had attended Mr. Martin’s residence one evening to follow up on a domestic disturbance complaint. The investigation went no further than a brief attendance at the Accused’s residence, which resulted in no further action being taken.
The investigation with respect to the charges in this case began when the police received an anonymous tip that the Accused had posted several pictures on Facebook indicating he planned to harm police.
It was the evening following their first visit to Mr. Martin’s residence that the police received the anonymous tip that indicated he had posted a menacing caption, directed at police, combined with photos that included firearms. The police again attended Mr. Martin’s residence, but were clearly not welcomed. They returned to the detachment and tried to view Mr. Martin’s Facebook page, but were unable to view any content. The police then contacted the anonymous tipster to ask if they would email pictures of the postings, which they did. In total, six screen shots were forwarded. The “screenshots” depicted an individual in various poses, kneeling with and holding various firearms that included a rifle and a long gun. The words “Ed’s Post” and “Ed Martin added 4 new photos” appeared as “banners” over the photos, in the typical Facebook font and symbolism.
These screenshots were at the centre of the Crown’s firearms and threats charges against the Accused. A Voir Dire was held to determine the admissibility of the screen shots. Ultimately, the PCJ declined to admit the photos as evidence, reasoning that these items had failed to be authenticated. The PCJ opined that since the anonymous tipster had not been called to give evidence, no one could testify that the screenshots were not altered or changed in anyway. The Court went further to say that there had been nothing to substantiate that the Accused even had a Facebook account, and even if they did, there was no way to determine conclusively that the Accused had been the one to author the posts depicted in the screenshots.
The Accused was convicted of being in possession of a knife for a dangerous purpose (which was found on him at the time of his arrest) but was acquitted on the charges of being in possession of a rifle for a dangerous purpose to the public peace, and uttering a threat to members of the Royal Newfoundland Constabulary. The Crown appealed the PCJ’s decision to rule the screenshots inadmissible – which brings us to the Court of Appeal’s analysis of the issue.
The Court of Appeal was thorough and careful to reiterate its explanation of a key component in their analysis: the threshold for admissibility of authenticated electronic documents under the Canada Evidence Act is low, and can be established by both direct and secondary evidence. The proposed electronic evidence must be capable of supporting a finding that the evidence sought to be admitted is what it purports to be.
The Crown submitted that the PCJ had been erroneous in ruling that the screenshots were not authenticated by the evidence adduced at Trial. At the Voir Dire, 10 witnesses, all police officers, were called including the officer who began the investigation and obtained the screenshots. This police officer testified that he was very familiar with the layout of Facebook, and the screenshots were consistent with what he knows of Facebook. While not accepted by the PCJ as an acceptable form of authentication, the Court of Appeal disagreed and suggested that the officer’s testimony was evidence that the screenshots were authentic. Further, the police officer testified about identifying striking similarities between what they saw when they were in attendance at the Accused’s home – clothing, personal items, layout of the residence – that mirrored what they had seen in two of the screenshots. The Court of Appeal found that this information aided in the authentication of the screenshots, and determined that it was not necessary to have the anonymous tipster’s testimony verifying their authenticity. No evidence to the contrary was introduced by the Defence.
The Court of Appeal stressed that authenticity does not determine authorship – meaning that although the evidence is admissible, it is not determinative of who actually authored the post. As a result of their analysis, the Crown’s appeal was allowed and the case was returned back to Provincial Court for further proceedings. As is standard practice, the Court of Appeal did not comment on what probative value the evidence may have.
The introduction of digital evidence in criminal proceedings will continue to create a myriad of issues for the courts to determine. The Charter was not written with these intricacies in mind – and the responsibility lays not only with the courts, but in the hands of criminal lawyers across the country. If your case involves digital evidence (social media postings, text messages, etc.) it is imperative that you contact experienced and seasoned counsel without delay. We are licensed to practice in British Columbia, the Yukon Territory and the Northwest Territories.
by Jason Tarnow | Oct 16, 2020 | Crime, Legal Aid, Legal Rights, Media, Social Media
As we’ve spoken about in previous posts, overrepresentation of Indigenous offenders in the Canadian Correctional System is both disturbing and rampant – making up approximately 30% of all inmates – despite accounting for only 5% of Canada’s population. Within the past decade, the Courts have recognized that this overrepresentation encompasses many factors – including the historical discrimination of Indigenous people in the judicial system.
Back in 1999, the decision of R. v. Gladue by the Supreme Court of Canada served as confirmation that the circumstances of Indigenous offenders are unique, and must be taken into consideration when the Court contemplates the issues of bail and sentencing. This jurisprudence was reaffirmed by the Supreme Court of Canada in the case of R. v. Ipeelee in 2012.
The preparation of a Gladue Report requires a thorough review of the facts of the case and the personal history and circumstances of the Accused, coupled with their Aboriginal heritage, and how the former is influenced by the latter. The assessment of these elements and the authoring of the report must be completed by an individual who is educated and intimately informed of the special challenges that Indigenous people face in the judicial system. These reports are commonly ordered by Courts all across Canada – with the exception of Nunavut, where a Gladue report has never been tendered in Court.
Criminal defence counsel in Iqaluit, Nunavut (where 85.9% of the population identifies as Indigenous) recently requested that the Court Order a Gladue Report for an Indigenous offender whose case is proceeding to sentencing. The presiding Judge, Chief Justice Neil Sharkey, declined to do so – explaining that there are no Gladue Report writers in the Territory. Although there are Writers available in the South (we commonly engage their services for clients in Richmond, Surrey, Port Coquitlam and many other jurisdictions in the Greater Vancouver Area, in addition to Whitehorse, Dawson City, Yellowknife and other communities in the Yukon and Northwest Territories) Chief Justice Sharkey opined that these Writers are not familiar with the Inuit community, as they only author reports for First Nations and Métis offenders. The Court went on to explain that the Accused should not face further delay while awaiting the preparation of a Gladue Report. While it is true that the Government of Nunavut has not created a program within the Territory that trains and employs individuals qualified to prepare Gladue Reports, it is also true that a push to create such a program has never been prioritized. Experienced criminal defence counsel will always advocate for Gladue Reports where they are applicable, as we are well apprised of the value they provide not only to the Accused, but to the Courts and all those who are effected by their proceedings. And while the production of a Gladue Report can certainly cause delay in the case proceeding to sentencing, its influence on the Court could result in a lesser sentence, nullifying any delay created during its production.
The irony lays in the fact that R. v. Ipeelee – the case to reaffirm the Court’s obligation to take judicial notice of the unique circumstances of Indigenous offenders and the importance of Gladue considerations – involves an Indigenous person from none other than Iqaluit, Nunavut. The case was heard before the Supreme Court of Canada on October 17, 2011 – almost exactly 9 years prior to the date of this post.
It is not the sort of irony that leaves you in awe of such a coincidence – rather, it is the kind that leaves you wondering: if the decisions of highest Court in Canada, the loudest and most authoritative body of our legal system, cannot provide a voice to those who need it most….who can?
by Jason Tarnow | Sep 2, 2020 | Crime, Criminal Attorney, Legal Rights, Media, Police, Politics, Social Media, Uncategorized
In one of our previous posts, we discussed biometric technology and the role it plays in Canadian law enforcement. It is, however, only one of the “predictive” tools utilized by the police in relation to criminal investigations.
A new report by the Citizen Lab at the University of Toronto goes into alarming detail regarding growth of algorithmic policing methods, and how this technology compromises the privacy rights of Canadian citizens. The report is incredibly thorough and comprehensive, delving into how this controversial technique offends various sections of our Canadian Charter of Rights and Freedoms. Firstly, though, it is important that our readers understand what algorithmic policing is.
The overall success of any algorithm is the system’s ability to gather, store, and analyze data – with law enforcement’s methodology being no different. A “location focused” algorithmic approach seeks to determine (predict) which areas are more likely to see criminal activity. The algorithmic system in these pursuits analyzes historical police data to identify geographical locations where crimes are, in theory, more likely to be committed. If this sounds familiar to you, then you’ve likely heard of, or accessed, the Vancouver Police Department’s GeoDash crime map – an online tool where you can navigate a map of the City of Vancouver by crime occurrence. You can choose from a variety of offences on the dropdown list, including homicide, break and enter, mischief, theft, and “offences against a person” which likely includes a variety of crimes such as sexual assault, assault causing bodily harm, and uttering threats. By looking at this map, you get an idea of which neighborhoods in Vancouver are most vulnerable to crime – except that it’s a little bit more sophisticated than that, and goes far beyond simply dropping a pin on the map. The public can see where the crime took place, but not who is alleged to have committed it. The offender’s personal information is logged, in as much detail as possible, and becomes part of a larger system dedicated to predictive surveillance – i.e., it creates a profile of which individuals are more likely to commit a particular crime. This profile can be used to identify people who are “more likely to be involved in potential criminal activity, or to assess an identified person for their purported risk of engaging in criminal activity in the future”.
While this information is definitely concerning, there is another issue: we have very little insight into the extent that this technology is being used. We know that the methods by which police gather information have historically discriminated against minority groups and those living in marginalized communities. This seems to guarantee that the VPD’s use of algorithmic investigative techniques relies on data that is often obtained through biased methods. We know that black and indigenous individuals are disproportionately represented in the correctional system, which can only mean that they are disproportionately represented in respect of these algorithms.
Although not everyone agrees that systemic racism exists within the VPD, the calls to address, unravel and mitigate the harm to marginalized groups continue to amplify. The idea that information collected under the apprehension of bias will not only remain on record, but will be used to further future investigations, is an indicator that Canadian law enforcement’s road to redemption will likely be a bumpy one.
by Jason Tarnow | Jul 2, 2020 | Crime, Criminal Attorney, Legal Rights, Media, Police, Riots, Social Media, Wheels Of Justice
Over the last couple of months, there has been outcry from the public urging the use of BWC’s (Body Worn Cameras) for Canadian law enforcement. Although initially in response to the growing unrest relating to police brutality in the United States, there are echoes of abandoned intentions from Canadian officials dating back at least a few years.
Back in 2015, the Office of the Privacy Commissioner of Canada (“OPCC”) issued a publication regarding the use of BWC by police, in collaboration with privacy agencies in Alberta, New Brunswick and Quebec. The remaining Canadian law enforcement agencies from other provinces and territories acted “in consultation”.
For reference: according to the CBC, there were a total of 2 incidents involving the death of individuals at the hands of law enforcement in New Brunswick between 2012 and 2014, 12 incidents in Quebec, and 14 incidents in Alberta. Interestingly enough, British Columbia (on par with Quebec at 14 deaths) and Ontario (with the highest rate of police violence resulting in death in the country at 25 deaths between 2012 and 2014) were only acting in consultation.
The report hails the effectiveness of BWC to capture high quality images, videos, and audio recordings – so effective, in fact, that the OPCC had grave concerns regarding their ability to capture material that could jeopardize the privacy of innocent and uninvolved bystanders.
The report goes on to tout the value of BWC for evidentiary purposes, including analytics so sophisticated that the material obtained would likely be suitable for biometric comparison – aka, facial recognition.
There is no arguing the fact that the use of BWC by police has implications for the privacy of citizens in their everyday lives – especially since once fitted, citizens would likely expect on-duty officers to have their devices on a continuous basis as opposed to intermittently.
Benefits of BWC include the ability to review interactions between police and the public, recording communications between the police and suspects in the course of an investigation, identifying potential witnesses, and of course recording interactions between police officers. Many criminal cases involve evidence obtained through the use of dash cams, which provide audio from inside a police cruiser and video from the perspective of the driver. The effectiveness of this technology loses value when the investigation takes place outside of a police vehicle, as the audio often fails to capture intelligible communications between police and a suspect, or between officers themselves. Although the dash cam is kept running, the audio portion is often useless when the interactions between police and a suspect take place outside the vehicle, and the windows of the police cruiser are closed, or if the police/suspect leave the immediate area where the audio is successfully captured.
The report indicates that while continuous recording would undoubtedly provide a greater level of accountability for the actions of police, the threat to personal privacy reigns supreme:
“From an accountability perspective, continuous recording may be preferable because it captures an unedited recording of an officer’s actions and the officer cannot be accused of manipulating recordings for his or her own benefit. However, from a privacy perspective, collecting less or no personal information is always the preferred option”
In 2014, the Edmonton Police concluded a pilot project regarding the use of BWC by its officers. The conclusion?:
“The cameras had no effect on police use-of-force incidents and said there was no statistical difference in resolving police complaints”
According to an analysis done by CBC, there were a total of four deaths between 2012 and 2014 relating to officers of the Edmonton Police Service. By comparison, there were 9 deaths in the same period relating to officers of the Toronto Police Service. The results of the Pilot Project may have seen different results in a different jurisdiction.
The Edmonton Police explained that in addition to being ineffective to expose cases of police misconduct, the related expenses were simply unrealistic. Perhaps surprisingly, it’s not the cost of the devices themselves, but the expense to store and manage all of the material collected: somewhere between 6 and 15 million dollars over five years, which also includes hiring personnel qualified for the job.
Finding the balance between accountability, transparency and oversight of police against the protection of privacy for Canadian citizens is a legitimate and profound task – one that cannot be taken lightly. As the calls for BWC in Canadian law enforcement grow louder, and as Canadians revisit the reality of what it is to be privileged in this country, we can only hope that the values of dignity and equality are recognized as being more valuable than the cost of the equipment that very well could save lives.
