Appeal allowed. The declaration of unconstitutionality of a mandatory minimum sentence imposed by the sentencing judge is set aside, and a four-year penitentiary term is substituted. Significant time has elapsed since the Indigenous accused was sentenced – and who now has finished that sentence, therefore the sentence of imprisonment is stayed.
Indigenous Law Centre
Indigenous CaseWatch Blog
A 19 year old Inuit man, in retaliation for being bullied, fired a bullet into a house, which shattered a window and missed striking a man by inches. The accused entered a guilty plea to intentionally discharging a firearm into a place knowing that or being reckless as to whether another person was present, contrary to s 244.2(1)(a) of the Criminal Code. The mandatory minimum sentence for this offence is four years.
At the sentencing hearing, a Notice of Constitutional Challenge was filed by the Defence arguing that the mandatory minimum sentence was grossly disproportionate to a fit sentence for this offence and this offender, contrary to s 12 of the Charter. The sentencing judge determined that a fit sentence for the accused was two years less one day, plus one year of probation, and the imposition of the mandatory minimum sentence in this case would result in a sentence that is double the appropriate sentence (R v Ookowt, 2017 NUCJ 22). The Crown appeals to this Court, contending the sentencing judge failed to properly assess the gravity of this offence and that the accused’s conduct warranted the four year mandatory minimum sentence.
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 Court concludes that the sentencing judge committed errors in principle by imposing a disproportionate and demonstrably unfit sentence. Further, it is concluded that the four year mandatory minimum sentence under s 244.2(3)(b) is not a grossly disproportionate sentence for this offence and this offender. The Court sets aside the sentencing judge’s declaration that the imposition of the four year mandatory minimum sentence would breach the accused’s s 12 Charter rights.
In the Court’s view, the sentencing judge underemphasized the accused’s high moral blameworthiness for this offence, and overemphasized intoxication, bullying and Gladue factors. As a result, the sentencing court failed to give sufficient weight to denunciation and deterrence in reaching a sentence that was ultimately disproportionate and unfit in all of the circumstances. The sentencing judge did not provide any persuasive reasons for imposing a sentence that did not address the well-established seriousness of this firearm offence, and failure to do so was an error (R v Mala, 2018 NUCA 2). In sum, an offender who commits the offence of intentionally discharging a firearm into a place, knowing or being reckless as to whether anyone is in that place, is guilty of significant morally blameworthy conduct.
The accused’s admitted act of “extreme premeditated violence is completely disproportionate to any reasonable and measured response to the bullying he suffered”. It was sheer luck that his bullet did not hit and kill either of the two men in the house, only one being the target of his “warning”. Gladue considerations do not significantly reduce the accused’s moral blameworthiness in this matter (R v Swampy, 2017 ABCA 134).
The trial judge found the accused did not have a disadvantaged upbringing, nor does there appear to be a history of family violence, displacement, residential schooling or “constrained circumstances” (R v Ipeelee, [2012] 2 CNLR 218). Rather, the accused enjoyed a culture-centred and close family upbringing throughout his life. He is both intelligent and educated, communicating in both English (written and oral) and Inuktitut (oral). He opted to leave formal schooling to pursue his vocation as a traditional hunter, earning a living from the land by selling furs and supporting his family and community with the country food he harvested, and by keeping their machines and dog teams in good order. While a history of colonialism must be taken into account, including substance abuse and suicide in this matter, it is difficult to identify any background factors that greatly diminish the accused’s moral blameworthiness for this serious firearm offence, at least to the extent found by the sentence judge to “temper the usual deterrence sentence” by more than two years.