The Supreme Court of Canada will not hear arguments on the unconstitutionality of mandatory minimums when it comes to the sentencing of two Inuk men charged with the criminal offence of intentionally discharging firearms.

On March 9, the country’s highest court delivered its decision to not grant a leave to appeal in two separate cases that were heard at the same time by the Court of Appeal of Nunavut in September 2019.

The Court of Appeal set aside the declaration of unconstitutionality of the mandatory minimum sentences that the lower court had arrived at in the sentencing of Cedric Ookowt (September 2017) and Simeonie Itturiligaq (October 2018). Both men were sentenced to two years less one day for an offence, which under the Criminal Code, carried a four-year mandatory minimum sentence.

The Crown had appealed the initial sentencing for both Ookowt and Itturiligaq.

“It is common for those who live in Nunavut’s communities to own rifles. They are used for subsistence hunting, supporting a traditional way of life. Sadly, this also means they are often readily accessible for unlawful and dangerous purposes such as intimidation, revenge, domestic violence, and retaliation. This unlawful and dangerous conduct must stop,” wrote the three-judge panel of the Court of Appeal.

The Court of Appeal said neither justice in the lower court gave “a fit sentence proportionate to the gravity” of the offences and sentenced both men to the four-year minimum term.

The lower court judges, Justice Earl Johnson and Justice Paul Bychok, ruled that the mandatory minimum sentences violated the men’s Charter rights against cruel and unusual punishment. Both justices noted that for the men to serve the mandatory minimum sentences they would have to leave Nunavut.

Cedric Ookowt entered a guilty plea for discharging a firearm on June 29, 2016 in Baker Lake, Nunavut. He also entered guilty pleas to dangerous driving and evading a police officer for incidents that occurred April 28, 2016. All charges fell under the Criminal Code.

On June 29, 2016, Ookowt, 19 years old at the time, had spent the day drinking with a friend. Later that same day, Ookowt said he was physically assaulted by a man, who had consistently bullied him. Ookowt went home, retrieved his father’s rifle, went to the man’s home and fired one bullet through the window of the man’s home.  No one was injured.

“Because of the bullying, intoxication and firing of only one shot, I am satisfied that the accused is lower down the scale of moral blameworthiness than the accused persons in other Nunavut cases. The accused entered an early guilty plea and is remorseful about what he had done,” wrote Johnson in his decision to give the reduced sentence.

“I must take these circumstances into account to ensure that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of this offender,” further wrote Johnson. “Under all the circumstances of this crime and this accused, I am satisfied that a sentence of two years less a day would be the appropriate one.”

In early January 2018, Simeonie Itturiligaq, 24 years old at the time, intentionally fired his hunting rifle into the roofline of a house where his girlfriend was after she refused to go home with him. No one was injured. When Itturiligaq’s girlfriend left the house, he struck her in the leg with the butt of the rifle. She left with him.

Itturiligaq, who had no criminal record, entered an early guilty plea for intentionally discharging a firearm.

Itturiligaq’s girlfriend did not file a victim impact statement and said she forgave him. These points registered highly with Justice Paul Bychok, although he also noted that “cases of domestic violence continue to fill our circuit court dockets in every one of our communities. In this case, the offender bears a high degree of moral blameworthiness for his abusive and controlling actions.”

However, Bychok went on to say that “the precepts of Inuit Qaujimajatuqanjit” (Inuit societal values) must be followed and that “forgiveness, reconciliation, reintegration and restitution were, and still are, key aspects of Inuit justice; as they are today in the Nunavut Court of Justice.”

Bychok ruled, “Given the history of recent gun-related violence in Kimmirut, and its domestic context, the appropriate and least restrictive sentence in this case would be two years less a day in jail followed by probation for two years.”

In overturning Bychok’s ruling, the Court of Appeal pointed out there was no “evidentiary record to assess whether the Inuit community’s application of its own Inuit Qaujimajatuqangit would have necessarily or inevitably resulted in a lower sentence, it was not correct to assume that in a domestic dispute where a powerful weapon was fired in anger at an occupied home the Inuit community itself would have placed any mitigating weight on the victim’s willingness to continue a relationship with Mr. Itturiligaq.”

The Court of Appeal also said that Gladue factors, while prevalent generally in the history of colonialism and intergenerational effects, were not prevalent personally with either man and therefore lower blameworthiness was not indicated.

In its decision on the two cases, the Court of Appeal stated, “When young Indigenous men must by law be separated for significant periods of time from their families, communities and land for committing such offences, everyone loses, possibly no one more than the offender. But it is a sentencing response that is not unwarranted or grossly disproportionate to the gravity of these offences or the moral blameworthiness of those who commit them.”

The Court of Appeal stayed the remainder of Itturiligaq’s jail term as he was nearing the end of his sentence. As Ookowt had finished his sentence, his imprisonment was also stayed.

The Supreme Court does not provide reasons for leave application judgments.

By Shari Narine, Local Journalism Initiative Reporter

Original Published on Mar 10, 2023

This item reprinted with permission from   Windspeaker.com    Edmonton, Alberta
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