R v Kuliktana, 2020 NUCA 7

Appeal allowed. The sentence on the Appellant is altered as proposed by the joint submission. In this appeal, emphasis was placed on the role of Gladue factors to help justify a joint submission for a sentence that appeared to be lower than appropriate. Inferences were made in the absence of direct information, as a Gladue Report was not available.

Indigenous Law Centre CaseWatch Blog

The Appellant, a 27-year-old Inuk man from the Hamlet of Kugluktuk, in the Kitikmeot Region of Nunavut, entered guilty pleas to one count of assault and one count of unlawful confinement. The Crown elected to proceed by summary conviction on both counts and pleas were entered after resolution discussions. The joint submission for a fit sentence was 120 days in custody, less credit for the 58 days the Appellant had spent in pre-sentence custody to that date, leaving 33 days to serve along with a probation order of 12 months.

The sentencing judge resisted the joint submission and called upon counsel to provide more information and a more elaborate rationale. The Appellant remained in custody in the meantime for almost 3 months. The sentencing judge then rejected the joint submission and imposed a sentence of imprisonment of 180 days on the count of assault which he described as “time served” and 60 days concurrent on the count of unlawful confinement also described as “time served”. In addition, the sentencing judge directed a probation order for a period of 12 months, with conditions, including performance of 50 hours of community service work.

The Appellant on this appeal submits that his sentence has been completed, but that his appeal is not moot because the entry on his criminal record will be higher than it should have been. The Appellant had an unstable childhood due to his family’s inability to settle in one community. He has a significant criminal record, including convictions in 2014 and 2015 for analogous “domestic assault” offences. His counsel attributes the Appellant’s criminal record at least in part to the criminogenic factors of alcohol and a lack of stable housing.

Regrettably, there was no Gladue report prepared to further illuminate what other factors may have contributed to his difficulty in maintaining a prosocial conduct pattern (R v Gladue, [1999] 1 SCR 688). It has been said repeatedly that this type of information is not to provide a special exemption in sentencing but rather is directly related to locating a proportional sentence having regard to the gravity of the offence and the degree of responsibility of the offender under s 718.1 of the Criminal Code. It is an error to proceed on the basis that Gladue factors do or do not justify departure from a proportionate sentence (R v Swampy, 2017 ABCA 134). Rather, they direct the sentencing court’s attention to circumstances that help to identify a proportionate sentence.

In this instance, it is a matter of conjecture as to what influence more Gladue information might have had on counsel or the Court. But it is possible to draw some inferences from what was provided about the Appellant’s circumstances. Often it is a matter of common-sense inference as to how the offender’s life has reached the point where the offender’s reactions to problems tends to breach social norms. In determining whether a proposed joint submission sentence for an offender seems unfit, the sentencing court should consider how Gladue factors might fit in to the situation.

When the Crown chooses to enter into a plea arrangement with an offender (by counsel) that is a solemn business, and it is not just clearing court backlog in some bureaucratic sense. Whether a sentencing court should harbor doubt about the utilitarian benefits of plea agreements and joint submissions, there cannot be similar doubt about the linkage between the Crown taking a consistent, reliable and predictable position and the Rule of Law.

The sentencing judge’s mention of what he felt did not reconcile the joint submission with his unexplained conceptualization of a fit sentence for the Appellant’s crimes came down to rejection of the joint submission on a basis subjectively held by him. It was not a manifestation of the principled override of a joint submission contemplated by, or consistent with, the guidance and policies in R v Anthony-Cook, 2016 SCC 43. Accordingly, the failure of the sentencing judge to explain what was wrong with the joint submission was a flaw with more than one dimension. It is not discernible what, if any, comparators or prior authority or guidance the sentencing judge was relying on, and it would not have been a demonstration of “public interest” error if the only discrepancy of the joint submission were that it did not fit the sentencing judge’s own practice.

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