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

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“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.”

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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.

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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.

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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.

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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.

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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.

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“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.

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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.

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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.

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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.

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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.

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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.

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“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.

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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.

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National Post

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