Jamie Sarkonak: Supreme Court downplays ‘non-Indigenous legal traditions’ to enshrine sentencing circles

On Friday, in deciding the appeal of a part-Mi’kmaq man who brutally beat his Mi’kmaq girlfriend in the street, a majority of the Supreme Court of Canada declared that judges are now required to hear out what sentencing circles have to say in the sentencing of an Indigenous offender.

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The five judges responsible for the decision assure us that this does “not create a parallel regime for Indigenous offenders,” but it’s hard to see it any other way. No other group in Canada is entitled to have a council of (mostly) co-ethnics lobby courts for softer sentences.

Back when the Mi’kmaq man in question was first tried for beating his girlfriend, this was not the case. Offender Harry Arthur Cope had the privilege of a sentencing circle, but the judge was under no obligation to address the results at length. So, when the result of that process was a recommendation of no further jail — time served, three years — the trial judge was free to disagree.

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This should have been uncontroversial. Cope’s trial judge sentenced him to five years, a fair, if restrained, outcome given the circumstances. His victim required surgery to put the small bones of her eye socket back together, and her sternum was also fractured. At the time of the assault in 2021, the woman’s infant daughter had recently died, and she had been seeking comfort from her then-partner. He responded by smashing her face into the sidewalk and kicking her in the head and ribs. This was part of a larger pattern: his criminal record ran back 16 years, rife with violence and breaches of court orders.

The sentencing circle that reviewed Cope’s case wasn’t recorded and was outside court oversight. Indeed, it didn’t hear from the community at large, the victim, or her family (even though the inclusion of these parties is typically one of the major selling points of the process). Cope’s sentencing circle merely convened the judge, the Crown, a law student, Cope’s defence counsel, a couple of Mi’kmaq individuals identified as “client support,” a “Knowledge Keeper,” and four affiliates of the Mi’kmaw Legal Support Network. On paper at least, it seemed to be more a meeting of Mi’kmaw Legal Support Network staff with the parties than a community hearing about the incident. The total lack of victim participation should have rendered it meaningless.

The sentencing circle concluded that incarceration wouldn’t help Cope become a better person, and instead recommended that he be spared further jail for the purpose of accessing support programs. Given the man’s history of ignoring court orders, the judge didn’t engage with the sentencing circle’s conclusions at length.

The case was appealed on this basis — and here, Cope was successful. The appeal court shortened his sentence to house arrest so that he could access rehabilitation services tailored for Indigenous people. The Nova Scotia Crown appealed this to the Supreme Court, and the Supreme Court took the opportunity to give the sentencing circle a special place in criminal law.

The Criminal Code already requires that judges take into account the Indigenous identity of offenders and victims in crafting a fit sentence; this is the basis for Gladue reports (and the Indigenous sentence discounts they produce). The Supreme Court expressed on Friday that courts must now go even further by fully considering recommendations of sentencing circles.

“Sentencing circles provide an important means through which Indigenous communities express their views on how to address sentencing,” wrote Justice Michelle O’Bonsawin for the majority.

“They offer a unique opportunity for Indigenous perspectives on crime and punishment to be considered by the criminal justice system and address the alienation many Indigenous people feel related to that system.”

Racial consultation, and racial consultation for only one group, should be considered appalling in a justice system based on equality, but over half of the members of our highest court believe otherwise.

O’Bonsawin went on to write that “true reconciliation” requires the braiding-together of “Indigenous law with non-Indigenous legal traditions,” referring to Canadian law in euphemistic, lesser terms. “Sentencing circles provide an opportunity for this braiding,” she continued.

While it was bad enough that a Supreme Court justice would undermine the country’s legal system by calling it “a non-Indigenous legal tradition,” while positioning the dubious notion of “Indigenous law” as something more legitimate, she further implied that judges have a duty to “braid” the two together. No longer are our courts solely to apply the law of Parliament in their work; they’re also expected to weave in a completely unaccountable body of supposed tribal traditions that just so happen to align with the beliefs of the left-wing legal scholars who resurrected them.

O’Bonsawin never explained whether “Indigenous law” was invoked at Cope’s sentencing circle. As the process wasn’t recorded or transcribed, it would have been impossible for the Supreme Court to review the exact reasoning for the sentencing circle’s recommendations. It was enough for O’Bonsawin to possess a report about the meeting — rendering it far less accountable to oversight than any court proceeding.

Nevertheless, O’Bonsawin continued, the failure to consider a sentencing circle’s recommendations amounts to a failure to follow the Criminal Code’s directions on Indigenous sentencing.

“Such failures further alienate Indigenous people from the criminal justice system, directly contrary to Parliament’s reconciliatory purposes underlying these sentencing provisions,” O’Bonsawin wrote.

She insisted that “Engaging with Indigenous perspectives does not hinder the denunciation and deterrence of crime,” but in Cope’s case, that didn’t turn out to be true.

In February 2025, years after his time was served for assaulting his girlfriend, Cope was charged with attempted murder, aggravated assault, assault with a weapon, uttering threats, possession of a weapon for a dangerous purpose and robbery, and four counts of violating probation orders. He allegedly stabbed a man and a woman at a residence, sped off in one victim’s car, robbed a gas station and crashed into a ditch. The aspirations of the sentencing circle clearly went unrealized.

O’Bonsawin also wrote that engaging Indigenous perspectives in sentencing “may well be key to effectively addressing violence in those communities and to protecting Indigenous women and girls.” But the case before her should have been reason for pause: Cope’s sentencing circle didn’t involve the victim, or any proxies of the victim — and he even went on to stab a woman in the years that followed.

While the Supreme Court had an opportunity here to at least put some parameters on sentencing circles, like a requirement for victim and community involvement, no such move was made. No matter how unhinged a sentencing circle is, and no matter how inappropriate its composition, the courts are obligated to hear them out — and to waste time explaining why outlandish requests for not jailing woman-beaters and child killers are wrong.

The four Supreme Court judges who disagreed with O’Bonsawin highlighted the absurdity of her position. There is no duty of judges to “braid” Canadian law with “Indigenous law,” they wrote, nor must Canadian judges defer to the asks of the Indigenous community.

“Requiring the variation of a sentence based on a sentencing circle would undermine the sentencing judge’s ultimate discretion to craft a proportionate sentence,” they noted.

The majority’s decision effectively consecrates the sentencing circle as the starting point for Indigenous sentencing, elevating Indigenous people even higher in the Canadian hierarchy. Equality may be written into the Charter, but it’s an afterthought of our highest court.

National Post

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