Decision highlights timidity to address Gladue

By John L. Hill

Law360 Canada (April 4, 2023, 11:06 AM EDT) --
John Hill
John L. Hill
A decision recently released by the Nunavut Court of Appeal, R. v. Kattuk, 2023 NUCA 4, is remarkable only in one sense — the timidity of counsel and the Nunavut court to address Gladue principles.

A jury found Archie Kattuk, an Inuit, guilty of second-degree murder. In late August 2017, Kattuk’s girlfriend, Mina Kittosuk, accused Kattuk of cheating on her. She was enraged. She drove her ATV at him; threw rocks at him; punched him in the face and stomach; and ordered him to leave. Kattuk went to his parents’ home, found a shotgun, took three shells and asked Kittosuk to come by. On her arrival, Kattuk loaded the gun. When Kittosuk spotted the gun, she raised her hands in the air. Kattuk discharged the firearm from about four feet away, killing the former girlfriend. He reloaded the gun and put the muzzle under his own chin and fired. He survived the blast. He claimed the shooting was accidental and admitted that he was guilty of manslaughter. He claimed that squeezing the trigger was an impulse reaction that was unplanned when he heard men’s voices behind him. But the jury didn’t buy it.

The Nunavut Court of Appeal looked at the transcript and found nothing wrong in the way the trial proceeded or with the trial judge’s charge. The decision was reasonable and the conviction would stand.

The Appeal Court then was left with considering if the trial judge’s sentence of life imprisonment without parole eligibility for 12 years was appropriate. The minimum sentence would prescribe a parole ineligibility period of 10 years. In this case the Crown had asked for 13 years while defence suggested 11. The sentence set the ineligibility period at 12 years.

The Court of Appeal took only two paragraphs dealing with sentence. One of those paragraphs summarizes the court’s disposition: “The appellant conceded in oral argument that the period of parole ineligibility is not demonstrably unfit. In light of the parole ineligibility range suggested by the appellant at trial, and his position in oral argument, we see no merit in this sentence appeal. We are merely being asked to tinker in the range he originally put forward. Accordingly, the appeal from sentence is dismissed.”

When an accused identifies as Indigenous and charged with a crime, a sentencing judge is obliged to apply what have become known as the Gladue principles derived from the Supreme Court of Canada decision in R. v. Gladue [1999] 1 S.C.R. 688. The 1999 case that led to the enactment of s. 718.2(e) of the Criminal Code was the prod that urged our courts to recognize the overrepresentation of Indigenous people in our prisons and to speak to challenges that included racism, loss of language, and removal from land. Although Inuit represent about 0.1 per cent of the Canadian population, they represent about one per cent of offenders incarcerated in federal correctional facilities. There is no federal penitentiary in Nunavut. People convicted and sentenced to penitentiary terms are flown to southern Ontario where their displacement includes segregation from their culture, loss of traditional diet, lack of visitation from family and friends and experiencing racism to varying degrees. Inuit inmates serve much harder time in penitentiary than inmates from southern Canada.

It must be kept in mind that Gladue principles are not an “Indigenous-Get-Out-of-Jail Free” card. It is just a reminder to the courts that sentences must be structured such that fairness prevails. In Kattuk, the defence had agreed that 11 years of parole ineligibility was reasonable. Wouldn’t it have been more in line with our recognition that Inuit offenders have a tougher life inside the walls of a penitentiary than their non-Indigenous peers to forego the extra year of ineligibility? After all, if the reason for imprisonment is to rehabilitate, what’s an extra year in delaying a parole board appearance going to accomplish?

All “lifers” have to prove themselves as manageable risks upon release to the community to their prison case management teams and to the parole board. Imposing an additional two years to the minimum sentence seems unnecessary and in contravention of Gladue.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at

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