Canada’s top court weighs what sentencing should look like when both victim and offender are Indigenous

< warm>Warning: This story contains computer graphic inside information of adumbrate partner force.

Brittany Sack, a Mi’kmaw woman from Nova Scotia, says she was seeking comfort from her former partner, who is also Mi’kmaw, following the death of her infant daughter when he began beating her — smashing her face into the sidewalk and kicking her in the head and ribs.

The assault, in the early morning hours of June 27, 2021, was captured on surveillance video. Sack, now 35, sustained serious injuries.

According to a statement of facts, her left eye was swollen shut and her sternum and the thin bones in her eye socket were fractured, requiring plastic surgery. Four and a half years later, she says she continues to experience short and long-term memory loss.

Her partner, Harry Cope, pleaded guilty to aggravated assault, but appealed his five-year sentence. Ultimately, the potentially precedent-setting case ended up before the Supreme Court of Canada, which heard arguments over two days last week.

Their decision involves weighing one area of the law meant to provide appropriate sentencing for Indigenous offenders against another meant to protect Indigenous women who are victims of intimate partner violence and other crimes. 

Both relate to sentencing and could be at odds with each other if the victim and offender are Indigenous. This is not uncommon in Canadian courts. According to Statistics Canada, between 2009 and 2021, 86 per cent of those accused of killing an Indigenous woman or girl were themselves Indigenous.

Sack did not participate in any part of the criminal justice process and did not give a statement to police. She says she feared discrimination as an Indigenous woman, and at times was confused about how she could or should participate.

All nine supreme court justices heard the case. They have not said when they will render a decision.

Philippe Boucher, who is not involved in this case, but has taught courses in Indigenous Peoples and Criminal Justice at Université de Montréal and is currently working on a PhD in Indigenous sentencing at Carleton University, says the case will provide direction for courts across Canada, no matter what decision the Supreme Court reaches. 

“It's adding another layer of complexity and of nuance,” he said in an interview. €œAnd I think that can be very beneficial for sentencing in Indigenous communities at large.” 

Assault case could set precedent for Indigenous sentencing considerations

In 1999, the Supreme Court of Canada reinforced a 1996 amendment to the Criminal Code intended to address the overincarceration of Indigenous people in its landmark Gladue decision, which mandated courts to consider systemic factors relating to discrimination, colonialism and intergenerational trauma. 

The decision stated that specialized pre-sentence reports should provide background on Indigenous offenders. These reports are now known as Gladue reports, named after Jamie Gladue, an Indigenous woman who pleaded guilty to manslaughter in the death of her common-law husband.

Further amendments to the code in 2019 required courts to give “primary consideration” to deterring violence against Indigenous women. 

It was a direct response to the recommendations of the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG).

The 2021 assault of Sack by her former partner in Nova Scotia is forcing the courts to examine all of this legislation at once. 

Cope, who pleaded guilty to aggravated assault in 2022 in Halifax provincial court, also took part in a sentencing circle — a form of restorative justice available to Indigenous offenders, bringing together offenders, victims, members of the community, elders and in this case, lawyers and the judge. Sack did not participate. 

The sentencing circle recommended Cope not serve any further time in custody and instead receive a community sentence where he would also get services and supports.

What are Gladue reports?

Provincial court Judge Christine Driscoll concluded Cope required incarceration to protect the public and on Feb. 16, 2023, she sentenced him to five years in prison. His lawyers appealed, saying Driscoll did not appropriately consider the Gladue principles.

The Nova Scotia Court of Appeal agreed and reduced his sentence by two years in June 2024. 

But the Crown appealed to the country’s top court, arguing Driscoll had made the right decision in the first place. The Supreme Court granted the appeal.  

During that hearing last week, Nova Scotia Crown attorney Erica Koresawa argued the law requires determining what would actually deter the specific individual from reoffending. In this case, she said Cope had already had multiple opportunities to engage in rehabilitation. 

But Cope’s lawyer, Jonathan Rudin, who specializes in Indigenous justice issues, pointed out Indigenous people in Canada are nine times more likely to be imprisoned than non-Indigenous Canadians.

“We will never jail our way to reconciliation,” he told the court.

Rudin also reminded the court that it had previously decided the Gladue principles must be applied for all Indigenous offenders, even in extremely grave cases involving sexual violence against children.

Cope is currently facing a slew of new charges from February this year, including attempted murder, assault with a weapon, robbery and uttering threats to cause death. He’ll answer to those at Truro provincial court in January 2026. 

During the Supreme Court hearing, the justices continually interrupted the lawyers and asked many questions. 

Justice Malcolm Rowe warned the seriousness of the offence cannot be forgotten in the larger legal arguments. 

“The main point is, he almost killed another human being!” he exclaimed.  

Several justices expressed concern that Driscoll, the original trial judge, didn’t appropriately consider the recommendation of the sentencing circle, though she did attend it.

“She has a one-liner that talks about the fact it took place and nothing else,” said Justice Michelle O’Bonsawin.  

Boucher, who writes Gladue reports in Quebec and watched a webcast of the hearing, says the Supreme Court's decision in the case will help lower courts to strike a balance between the Gladue principles for offenders on one hand, and the provisions for Indigenous victims of intimate partner violence on the other.

“We've seen hundreds of cases where they cited these provisions and we've seen many cases at the Court of Appeal across provinces, across territories,” he said.

Boucher noted that victims in these cases sometimes don't show up in court. €œOften, the tools of the justice system are not tailored to the needs of the victim."     

Renée Lagimodière represents the Attorney General of Manitoba, one of 20 interveners that aim to bring broader perspectives on the case before the court.

She argued that it must not be forgotten that Indigenous women and girls have endured the same challenges as Indigenous offenders and that it's not fair for women and girls to continue “carrying the weight.” 

She said in some cases jail is the only appropriate sentence.

Madeleine Redfern, the interim CEO of the Native Women’s Association of Canada said the group intervened out of concern that assumptions were being made about the victim’s position. 

In addition to not providing a statement to police, Sack also didn't provide a victim impact statement and didn’t participate in the sentencing circle.    

Why some Indigenous women might not participate in justice system

“The problem is that we don't actually have her own words, and as such, any presumption on any side of the equation is extremely problematic,” Redfern said in an interview outside court in Ottawa. 

The justices also questioned how they should consider a sentencing circle when the victim didn't take part. 

“Growing up on a reservation, when you get into trouble and stuff, they twist your words up,” said Sack, who is originally from Sipekne’katik First Nation in Nova Scotia.  

“I really don't feel like they're for us, to help us.”

Sack says she didn’t provide a victim impact statement because she worried people would think she was responsible if Cope received a harsher sentence, and because she says she was only given a day to consider it. 

She also says she got conflicting messages from different people within the justice system about whether she should attend the sentencing circle due to a no-contact order with Cope.

“When I get into a stressed out state, I just kind of just shut off — shut my feelings and emotions off — and then just shut everybody out,” she said. 

The granddaughter of a day school survivor, Sack acknowledges she’s had her own struggles with substance abuse and the law. She’s participated in sentencing circles where she was the offender and says that though they don't work for everyone, it really helped her because the participants were able to get through to her.

“If it's somebody that is like a respected elder or like, somebody meaningful that I would look up to or something like that, then it makes it different,” she said. 

Now sober for around five years, Sack says she has a new partner with whom she has two young children. 

"I am doing great,” she said. "Just having my life be put back together slowly." 

She remains hesitant to say what sentence she thinks is appropriate for her abuser. That's something she says is up to the courts. 

"They need to find that balance." 

If you’re in immediate danger or fear for your safety or that of others around you, please call 911. If you’re affected by family or intimate partner violence, you can look for help through crisis lines and local support services.

Crisis support is available for anyone affected by the issue of missing and murdered Indigenous people through a national 24-hour hotline at 1-844-413-6649. Health support services such as mental health counselling, community-based support and cultural services, and some travel costs to see elders and traditional healers are available through the government of Canada. Family members seeking information about a missing or murdered loved one can access Family Information Liaison Units.

Senior reporter

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