Nunavut Court of Appeal overturns 2 sentences that rejected mandatory gun offence guidelines

The Nunavut Court of Appeal has overturned a pair of sentences, in which judges in both cases said Canada's mandatory four-year minimum for firearms offences was unconstitutional.

In June 2016, Cedric Ookowt fired a single bullet into a house in Baker Lake, Nunavut, missing a man by mere inches.

Similarly, Simeonie Itturiligaq did the same thing in Kimmirut in 2018, except the bullet exited the roof and caused no injuries though the house was occupied.

In both cases, the men were angry at other people Ookowt at a longtime bully who that night punched Ookowt in the face and tried to take his alcohol; and Itturiligaq at his girlfriend who refused to go home with him after visiting friends.

Neither men were aiming at, or trying to harm, anyone in the homes they shot.

Both men were sentenced to two years less a day, in which the sentencing judges determined the mandatory four-year minimums violated their Charter rights against cruel and unusual punishment.

Both Justice Earl Johnson and Justice Paul Bychok, ruled Canada's mandatory four-year minimum sentences were unfit punishments, and opted for sentences which kept the men in the territory, rather than sending them to federal prisons in the South.

"Even if Nunavut is not a 'war zone' for gangs ... Nunavut has a pressing interest in deterring gun violence.- Nunavut Court of Appeal

But the rationale which led the judges to their conclusions differs in each circumstance and ultimately in the Court of Appeal's critique as to why the judges erred in their sentences.

Justice Johnson, for instance, determined the factors of the bullying and the fact Ookowt only fired one shot, combined with Ookowt's severe intoxication, placed him at a lower level of moral blameworthiness, and thus merited him leniency.

Meanwhile, Justice Bychokmeanwhileleaned on the Gladue principles which gives leniency consideration to Indigenous offenders as well as Inuit tradition in Itturiligaq's girlfriend's forgiveness, in his leniency factors.

But the three-judge panel of the Court of Appeal said both Johnson and Bychok erred in their respective reasons for why the men deserved leniency. In both cases, the Court of Appeal found the judges didn't give enough weight to the seriousness of the crimes, given Nunavut's history with gun violence.

Respectively, Itturiligaq's case presented underlying domestic violence issues at its core, while Ookowt's was lucky he didn't kill anyone, the Court of Appeal determined.

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• Details onSimeonie Itturiligaq'scase

• Details onCedric Ookowt'scase

Itturiligaq left dispute to getrifle

In sentencing Simeonie Itturiligaq, Justice Bychok leaned on the Gladue principles in testing whether the mandatory minimum was appropriate.

"Nunavummiut do not experience the terrifying gang-related gun violence which plagues Toronto," Justice Bychok wrote, in contextualizing the bill which introduced the mandatory minimum in 2009 as Parliament's response to gang violence.

"Our isolated and remote neighbourhoods are not war zones. Still, firearm offences are far too prevalent in Nunavut."

Indeed, while the 2009 bill was more specifically meant to address drive-by shootings in larger Canadian cities, "its purpose was to create an offence that prohibited the intentional discharge of a firearm," the Court of Appeal noted.

"Even if Nunavut is not a 'war zone' for gangs, as [Justice Bychok] put it, Nunavut has a pressing interest in deterring gun violence."

The three-judge panel also noted how the crime was "explicitly premeditated," arguing Justice Bychok did not give sufficient weight to those factors.

"Mr. Itturiligaq left the dispute with his domestic partner to retrieve his rifle which he ultimately used to gain her compliance after she earlier refused to do as he commanded."

The Court of Appeal also noted the offence wasn't just an incident of gun violence, but a case of domestic violence as well.

"Implicit in [Justice Bychok's] reasons, in our view, was his determination that gang-related gun violence on the streets of Vancouver is qualitatively more serious than gun violence in Nunavut that occurs in the context of a domestic relationship with the intended consequence of intimidating, threatening, controlling and terrifying one's domestic partner," the appeal court noted.

"This was a substantial error, one which materially impacted [Justice Bychok's] proportionality assessment. Indigenous women in northern communities are entitled to the same protection from the Court as anyone else."

Inuit values in sentencing

Bychok also gave weight to Itturiligaq's girlfriend's forgiveness of the crime.

But the Court of Appeal said he placed too much weight on it.

"There is undoubtedly an important intersection between Inuit Qaujimajatuqangit[Inuit traditional knowledge] and Canadian criminal law rules and processes," the court wrote.

"However, without any 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 weighed in on the notion that Nunavut offenders should receive lighter sentences to keep them in the territory.

The panel did not disagree that serving a jail sentence outside Nunavut in a place far from Itturiligaq's language and culture was a valid factor in determining a sentence. But they said it can't be used alone to mitigate a sentence where other factors were underemphasized, especially to deliver a sentence more than half of the legally-required minimum.

The panel also noted offenders in Canada are never guaranteed to be placed in a jail close to home, "though we do recognize the double disadvantage when Inuk offenders are removed from their home communities, both physically and culturally," they wrote.

The Court of Appeal ultimately stayed the remainder of Itturiligaq's jail term, given he was nearing his end of his sentence, meaning Itturiligaq won't have to go back to jail.

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'A matter of pure luck' Cedric Ookowt didn't kill anyone

Paralleled to the Itturiligaq decision, the panel addressed the issue of gun violence in Nunavut.

While referencing the history of the four-year mandatory minimum, which was specifically meant to address drive-by shootings in larger Canadian cities, the panel noted the prevalence of gun violence in Nunavut.

"Parliament intended to give primacy to denunciation and deterrence to address pressing and substantial concerns regarding firearm violence in Canada," the Court of Appeal wrote.

"However, despite recognizing that denunciation and deterrence were paramount, the deliberateness and gravity of this firearm offence, and the prevalence of this type of highly dangerous conduct in Nunavut, [Justice Johnson] failed to give sufficient weight to these factors.

"Mr. Ookowt very easily could have killed someone and it was a matter of pure luck that he did not."

In his original decision Justice Johnson also compared Ookowt's cases to four others in Nunavut involving firearms and where the offender was intoxicated. Johnson determined the factors of the bullying and the fact Ookowt only fired one shot, combined with Ookowt's severe intoxication, placed him at a lower level of moral blameworthiness than those other cases.

It is difficult to conceive how any circumstances, including intoxication, could lessen the moral blameworthiness of an offender who resorts to such violence.- Nunavut Court of Appeal

"In our view, [Justice Johnson] overemphasized these factors and their overemphasis had a material impact on sentence," the three-judge panel wrote, noting all the compared cases earned sentences of longer than four years.

"It is difficult to conceive how any circumstances, including intoxication, could lessen the moral blameworthiness of an offender who resorts to such violence."

On the notion of Ookowt had only fired one shot as being a mitigating factor, the panel found Justice Johnson erred indetermining it decreased Ookowt's culpability.

"Regardless, the first shot fired at a residence may often be the most serious because it risks the lives and safety of the unsuspecting occupants who have no time to react or take cover," the judicial panel wrote.

"Whether one shot or multiple shots are fired there is simply no room for error once the trigger is pulled.

Similarly, it only takes a single shot to strip the occupant of the targeted residence of all sense of safety and security in their own home."

In regards to bullying, the court found "an act of firearm violence [is] completely disproportionate to Mr. Ookowt's experiences of being assaulted that night, or being bullied earlier."

Like Itturiligaq's case, the Court of Appeal stayed the jail term, given the significant period of time that has elapsed since Ookowt was sentenced, and given that he has now finished his sentence.

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