Sentence appeal allowed where trial judge exceeded joint position after trial

R v Ikkidluak, 2025 NUCA 4: Sentence appeal allowed where the trial judge declined to impose a joint recommendation of four years for three counts of sexual assault, instead “jumping” the position and imposing a global sentence of *nine* years in prison.

I have been teaching the trial-level decision as a textbook example of what some view as a tension within Gladue. A defendant’s Indigenous identity pulls towards a lower sentence, both because colonialism impacts moral culpability and because restorative sanctions can be more effective for Indigenous defendants. But where the victim is also Indigenous, that fact pulls towards a higher sentence because their vulnerability increases the gravity of the offence. Some see this as a “cancelling out” of Gladue factors, especially in serious cases. In my view, this is why the trial judge held that Gladue “does not work in this case to alter the ultimate global sentence”.

I disagree with this view. The Gladue principles are motivated by historic and ongoing injustices against Indigenous peoples in Canada, providing tools to mitigate or avoid the further state harm posed by incarceration. They are focused on the wrongs of the Canadian state and its diminished authority in punishing Indigenous defendants. A victim’s Indigeneity, while obviously relevant, should not and cannot “cancel out” these principles.

Unfortunately, the appeal was not litigated on this basis. The supposed tension within Gladue will have to be left for another day—perhaps in the Cope case on the Supreme Court’s docket in December.

This case is also helpful because it clarifies the role of joint submissions after a trial. While the same degree of deference is not owed as on a guilty plea, a sentencing judge should still recognize that “the parties are well placed to arrive at an outcome … that is fair and just”. This is especially so where one of those parties is the Crown, a minister of justice with a duty to victims and the community. Sentencing judges owe joint submissions after trial “respectful consideration” – and at a minimum, fair notice and an opportunity to make further submissions.