Fake Indigenous Law Subverts Formal Canadian Law

On October 9, the Supreme Court of Canada ruled that judges must consider “sentencing circle” recommendations for Indigenous offenders, effectively prioritizing aboriginal perspectives in sentencing. This decision creates a parallel legal system, requiring courts to “braid” Indigenous law with Canadian law, a concept that undermines the principle of equality before the law. The ruling came in an appeal by Harry Arthur Cope, a part-Mi’kmaq man who originally received a reduced incarceration after a “sentencing circle” recommended no further jail time.

Sentencing circles “are not an Indigenous creation” even though they may share some features with Indigenous conflict resolution

But the decision was not unanimous: four of the nine justices dissented, arguing that Indigenous law should not override established Canadian law.

My view, rooted in an understanding of traditional Indigenous culture, goes far beyond the minority opinion. I assert that something now called “Indigenous law” existed neither in the past nor is alive in the present, the clearest evidence being that Indigenous people routinely apply to the Canadian courts whenever confronted with civil or criminal issues.

More important still, law is a system of enforceable rules created and backed by a governing or societal authority to regulate behaviour, maintain order, and resolve disputes. More specifically, it requires a supreme governing body, legislature, or established custom, backed by official sanctions, penalties, fines, or imprisonment if violated, that generally applies equally to all members of a community, including citizens, organizations, and the government itself.

“Indigenous law” shows none of these features.

This does not mean that communities without formal legal systems lack customary ways of dealing with chronically disruptive or violently destructive behaviour. Such communities have “healing circles”--now arbitrarily transformed in Canada into “sentencing circles”--that help resolve serious conflicts among competing parties. Still, such informal tribunals should not be conflated or “braided” with true legal systems.

Moreover, sentencing circles “are not an Indigenous creation” even though they may share some features with Indigenous conflict resolution.

Regrettably, this muddling now exists in Canada's criminal law system, even at the highest court level, resulting in guilty parties receiving reduced sentences based on ethnic or racial membership. Meanwhile, the victim is left to suffer in silence.

In Cope v. the Crown, the accused was a part-Indigenous man, which brought Gladue sentencing principles into play in his guilty verdict.

In its narrow decision, Canada’s Supreme Court upheld a lower court’s reduction in Nova Scotia of a criminal sentence against Cope for brutally assaulting his Common Law partner in 2021.

Hope’s victim required surgery to put the small bones of her eye socket back together, and her sternum was also fractured. This was part of a criminal record going back 16 years, complete with violence and breaches of court orders.

At his first trial, Cope pleaded guilty to aggravated assault. That led to a Gladue-mandated sentencing circle, an Indigenous restorative justice process in which the offender, victim, elders, and community members discuss the crime and recommend a sentence to the judge. The circle recommended three years.

Indigenous sentencing circles, supposedly patterned on traditional healing circles that characterized conflict resolution among many aboriginal peoples, are a newfangled woke creation

The trial judge rejected this recommendation.

Indigenous sentencing circles, supposedly patterned on traditional healing circles that characterized conflict resolution among many aboriginal peoples, are a newfangled woke creation. They are supposed to include offenders, victims, elders, and other community members who, alongside justice officials, help determine an appropriate sentence for a crime, including possible alternatives to incarceration, according to the Department of Justice.

In Cope’s case, the report from the 12-member circle was made up of a hodgepodge of individuals including Cope, the trial judge, prosecution services counsel, a law student, two members of the Mi’kmaw Indigenous community identified as “client support,” Cope’s legal counsel, a person identified as a “Knowledge Keeper, and four other persons unconnected to the community. Contrary to traditional Indigenous decision-making norms, it did not include the victim, her family, or representative members of the relevant Indigenous communities.

The presence of non-Indigenous members and the absence of the victim, her family, and community produced a “braiding” effort full of inauthenticity.

Moreover, no record was kept about what was said during the circle process, while the judge was not legally bound to accept the sentencing circle’s recommendation.

As for the Gladue principles, the Supreme Court of Canada established them in a landmark 1999 decision through its interpretation of Section 718.2(e) of the Criminal Code:

“The law was created to address the severe and disproportionate overrepresentation of First Nations, Métis, and Inuit people in Canadian prisons. … The principles apply to all Indigenous people (Status, non-Status, on-reserve, or urban/off-reserve) throughout various stages of the criminal justice process.”

But these principles ignore the elementary fact that Indigenous men are disproportionately responsible for physically assaulting people they are intimately involved with, their incarceration resting on the timeless dictum, “you do the crime, you do the time.”

This admonition runs counter to the Gladue principles. Judges at all levels must now account for the ongoing impacts of colonization and historical trauma, which include: the legacy of Indian residential schools and foster care systems; systemic and individual racism; loss of land, culture, and traditional languages; poverty, addiction, and housing insecurity.

More worrying still is that Gladue-like principles have recently been extended to other so-called marginalized Canadians

Although the Nova Scotia judge disagreed with the sentencing circle’s recommendation and sentenced Cope to five years, a Nova Scotia appeals court later reduced the sentence to three years, based on the initial recommendation.

The Supreme Court ultimately agreed with this three-year sentence, concluding that the original judge had failed to “sufficiently recognize that the offender’s mental illness contributed to the commission of the aggravated assault” or “meaningfully engage with the sentencing circle process.”

Where does that leave Cope’s victim, especially since she is Indigenous, too? The Supreme Court considered that factor and even warned that a shorter sentence “perpetuates a discounting of the lives of, and harms to” Indigenous women. Still, its decision rejected this consideration.

This reduced sentence decision suggests that Gladue principles should be privileged over the harms done to aboriginal victims. The minority opinion of the four justices who argued for a harsher sentence supports this interpretation, prioritizing denunciation and deterrence for crimes against vulnerable victims, and suggesting that “you do the crime, you do the time” is still alive in some judges’ minds.

A broader reading of these guidelines also suggests that many of them easily apply to non-Indigenous people as well, thereby making them racist in their intent and application. For example, countless non-Indigenous criminally convicted Canadians have suffered one or more of the following adversities: foster care, racism, loss of traditional land in their overseas homelands (why they migrated to Canada), cultural loss through public school assimilation, gradual loss of their ancestral languages, extreme poverty, addiction to various substances, and homelessness.

Why aren’t Gladue-like principles extended to them in equal measure?

More worrying still is that Gladue-like principles have recently been extended to other so-called marginalized Canadians. According to the Department of Justice Canada, impact of race and culture assessments (IRCAs) are reports that help criminal justice professionals better understand the effects of poverty, marginalization, racism, and social exclusion on black and racialized offenders and their life experiences. IRCAs are like Gladue reports, but are used primarily for black offenders, both adults and youth.

IRCAs allow “black and racialized offenders” to employ them during sentencing. The reports enable judges to consider how the “effects of poverty, marginalization, racism, and social exclusion” may have contributed to the crime.

The four dissenting justices disagreed with the majority, particularly its reliance on legal principles linked to UNDRIP

But like Gladue reports, which they closely resemble, ignored is the basic fact that sexual and other assaults against women are committed by members of all sectors of society, whether rich or poor, regardless of their skin colour, ethnicity, or life experiences.

Equally disconcerting, one of the Supreme Court justices, Michelle O’Bonsawin, who is aboriginal, went on to endorse using Indigenous traditions in tandem with conventional Canadian sentencing law, in a process the majority called “braiding.”

She referred to a 2024 Supreme Court decision that implemented the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Indigenous child and family services. She said, “sentencing circles provide an opportunity for this braiding.”

She also added that reconciliation between Indigenous and non-Indigenous people can advance by “braiding together” the two legal traditions to form a “single, strong rope.”

O’Bonsawin even disingenuously claimed that “these provisions do not create a parallel regime for Indigenous offenders,” and said judges must continue with “the fundamental sentencing principle of proportionality” and “the ultimate objective of protecting society.”

As the National Post’s Jamie Sarkonak has just argued:

“… the Supreme Court took the opportunity to give the sentencing circle a special place in criminal law [by ensuring] courts must now go even further by fully considering recommendations of sentencing circles…. 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…. 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.”

The four dissenting justices disagreed with the majority, particularly its reliance on legal principles linked to UNDRIP.

Justices Malcolm Rowe and Mahmud Jamal, writing for the dissent, said they don’t agree that Indigenous law and legal practices can be “braided” into criminal sentencing law.

Just as there is no “Indigenous science,” there is also no “Indigenous law.”

They argued that the majority incorrectly relied on a previous Supreme Court ruling about implementing UNDRIP in line with legislation recognizing Indigenous jurisdiction over child welfare, even though Parliament has made no comparable changes to Canada’s laws in line with the majority’s decision.

“Parliament has done nothing comparable in the Criminal Code; it has not conferred jurisdiction on Indigenous communities over sentencing decisions, nor has it directed sentencing judges to defer to Indigenous legal traditions,” Rowe and Jamal wrote, adding that the Criminal Code must guide a judge’s authority and that the view of the majority could limit a judge’s discretion.

While the dissenting judges agreed that Indigenous sentencing factors could inform judicial decisions, they said such factors should not override Canadian law as established by Parliament.

The four dissenting judges therefore called for restoring Cope’s original five-year sentence, saying the reduced sentence he’d received by the appeal court didn’t adequately take into account the severity of the violence he committed, the vulnerability of the victim, or the danger Cope posed to the community.

I have already dismissed this “braiding” in an earlier piece about so-called indigenous science, which is relevant to the falsely termed notion of “Indigenous law” as well. 

Just as there is no “Indigenous science,” there is also no “Indigenous law.”

Briefly, I contended that braiding and the connected issues of “bridging” and “weaving” are a repudiation of the Western scientific tradition because they privilege common sense visual understandings by labelling them scientific to score political or sectarian points, thereby mocking a foundational concept--science--no amount of “bridging, braiding and weaving” could ever displace.

The same holds for the privileging of traditional Indigenous “healing circles” now masquerading as “sentencing circles,” a charade easily revealed by the fact that Indian Band members immediately turn to the police for help when woundings or shootings take place on their reserves.

Overall, then, this decision speaks volumes about the need to reconsider the causes and consequences of the racially and ethnically discriminatory Gladue principles and sentencing circle recommendations.

Hymie Rubenstein, editor of REAL Indigenous Report, is a retired professor of anthropology at the University of Manitoba and a senior fellow at the Frontier Centre for Public Policy