Appeal allowed. The mandatory minimum punishment of imprisonment of four years is not a grossly disproportionate sentence for this offence and this offender. The Indigenous accused is now finished the custodial portion of his sentence and is well into his probation, therefore the sentence of imprisonment is stayed.
A 24-year-old Inuit man and traditional hunter for country food, who had lived his entire life in Nunavut, intentionally fired his hunting rifle at the roofline of a house he knew to be occupied. The single bullet exited the roof and caused no injuries. He was charged with intentionally discharging a firearm at a place, contrary to s 244.2(1)(a) of the Criminal Code.
The accused was interviewed by the RCMP and took full responsibility for his actions. He told police that on the day of the incident he had been upset that his girlfriend had not been spending enough time with him and their small daughter. He was angry that she had gone to her friend’s place without telling him and that she refused to leave with him. He told police that he only took one shot and was not trying to aim the gun at anybody, as he knew that he is not supposed to do so.
No formal Gladue report was prepared, but it is clear that some Gladue factors were relevant to the accused’s background. He and his family described that he had a good upbringing. The accused had no known history of residential schooling in his family’s background. He was in good physical health, save a hearing deficit and the need for hearing aids, a condition also shared by his father. While history of colonialism and its intergenerational effects must be acknowledged, the Gladue factors in this case do not operate to significantly diminish the high level of moral culpability underlying this offence.
The accused, who had no criminal record, entered an early guilty plea. He successfully challenged the constitutionality of the mandatory minimum punishment, on the basis that it violated s 12 of the Charter (R v Itturiligaq, 2018 NUCJ 31). The accused was ordered a custodial sentence of slightly less than two years, with credit for pre-trial remand, followed by two years probation.
The Crown appealed the sentence imposed on the accused as demonstrably unfit, and the court’s declaration that s 244.2(3)(b) is unconstitutional. While not joined, this appeal was heard at the same time as the oral hearing in R v Ookowt, 2020 NUCA 5 [“Ookowt”], which also involved a declaration that s 244.2(3)(b) was unconstitutional pursuant to s 12 of the Charter. As stated in Ookowt, both of these appeals arose as a result of young men resorting to the use of hunting rifles in response to what they believed to be personal slights or problems in their personal lives. The appeal is allowed, and the court’s declaration of s 244.2(3)(b) is set aside.