In early February Aboriginal Legal Services participated in a case at the Nova Scotia Court of Appeal called R. v. Cope. The case was about whether a sentencing judge had to consider the recommendations of a sentencing circle. It also was about how judges should consider Gladue factors when the victim is an Indigenous woman. ALS intervened in the case and was represented by Jonathan Rudin and Emily Hill.
The background of the case is that Mr. Cope pled guilty to an aggravated assault against his partner. A Gladue report was prepared and he asked for a sentencing circle. A sentencing circle was arranged by Mi’kmaw Legal Support Network and held at Millbrook First Nation. The circle had 12 participants, including the lawyers and the judge, and lasted more than four hours. The report from the circle recommended that instead of spending more time in jail, it would be better for Mr. Cope to attend treatment and be supervised in the community.
The judge who heard the case decided that Mr. Cope should go to jail. In her written decision, she did not talk about what the sentencing circle had recommended or why she thought jail was a better sentence. ALS argued that this was an error and that when sentencing circles are held, judges need to explain the reasons they agree or disagree with the recommendations of the circle. ALS argued that this is because the Supreme Court said in the cases of R. v. Gladue and R. v. Ipeelee that there need to be different sentencing processes to address the worsening crisis of Indigenous mass incarceration.
ALS also argued that the changes that were made to the Criminal Code to address the long-standing and serious issue of violence against Indigenous women don’t require that jail is always imposed. In some cases, addressing the root causes of the violence will better protect victims and communities.
ALS also stressed that the solutions to these problems are best known to the affected Indigenous communities and that courts should be respectful of the agencies and community members who share their time and knowledge through their participation in sentencing circles.
The case was argued in Halifax on February 13 in front of three judges. They reserved their decision, which means it will be released at a future date.
Emily Hill
Senior Staff Lawyer