R. v. Itturiligaq, 2018 NUCJ 31

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Itturiligaq, 2018 NUCJ 31 Date: 20180911 Docket: 09-18-3 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Simeonie Itturiligaq ________________________________________________________________________ Before: The Honourable Mr. Justice Paul Bychok Counsel (Crown): Philippe Plourde Counsel (Accused): Lana Walker Location Heard: Iqaluit, Nunavut Date Heard: October 9, 2018 Matters: Mandatory minimum penalty in Criminal Code, RSC 1985, c C-46,

section 244.2(3)(

b) found to be crueland unusual punishment contrary to s. 12 of Charter. R v Gladue, (SCC), [1999] 1 SCR 688, [1999] SCJ No 19,sentencing principles and mandatory minimum penalties. REASONS FOR JUDGMENT(Delivered Orally) (NOTE: This document may have been edited for publication)

TABLE OF CONTENTS I. OVERVIEW ... 4 II. FACTS . 4 III. THE LAW ... 5 A. Intentionally discharging a firearm .. 5 B. Cruel and unusual punishment 6 C. Sentencing Aboriginal offenders and Gladue principles . 6 D. R v Nur . 8 i. The first branch of Nur – objectives and principles of sentencing . 8 ii. The second branch of Nur – gross disproportionality . 10 IV. POSITION OF THE PARTIES . 10 A. The Respondent Crown . 10 i. The gravity of the offence . 11 ii. Circumstances of the offender and the offence . 11 iii. Actual anticipated effect of the sentence on the offender 11 iv.

Penological goals and relevant sentencing principles . 11 v. Valid alternatives to the punishment imposed . 12 vi. Sentences for other crimes in Nunavut 12 B. The Applicant Defendant 12 i. The gravity of the offence . 12 ii. Circumstances of the offender and offence . 13 iii. Actual anticipated effect of the sentence on the accused . 13 iv. Penological goals and relevant sentencing principles . 14 V. ISSUES . 14 VI. ANALYSIS . 15 A. What is the proportionate sentence for this offender in these circumstances? . 15 i. The significance of Gladue . 15 ii. Gravity of the offence . 18 iii.

Circumstances of the offender and the offence . 18 a. Aggravating factors . 18 b. Mitigating factors . 19 c. Criminal Records . 19 d. The Canadian Victims’ Bill of Rights . 20 e. Mr. Itturiligaq . 20 iv. Actual anticipated effect of the sentence on the offender 22

v. Penological goals and the relevant principles of sentencing . 23 vi. Valid alternatives to incarceration . 24 vii. Sentences for other crimes in Nunavut 24 viii. A proportionate sentence . 25 B. Gross disproportionality . 28 C. Charter

Section 12 – Conclusion . 31 VII. CHARTER

SECTION 1 . 31 A. The third branch of Nur – Is the MMP saved by

section 1 of the Charter as a demonstrably justified and reasonable limit in our free and democratic society? . 31 B. Charter

section 1 – Conclusion . 31 VIII. SENTENCE . 32 I. OVERVIEW [ 1 ] The accused, Simeonie Itturiligaq, is charged with firearm-related offences, assault with a weapon and unlawful confinement arising from an incident in Kimmirut in January 2018. On May 11th, he pleaded guilty to intentionally discharging a firearm at a house knowing that it was occupied. [1] The Court ordered a Pre-sentence Report. His sentence hearing was scheduled for October 5, 2018. [ 2 ] This offence carries a mandatory four year minimum penitentiary sentence. [2] Mr.

Itturiligaq has challenged the constitutionality of this mandatory minimum penalty (MMP). He says the MMP constitutes cruel and unusual punishment and violates his rights pursuant to s. 12 of the Canadian Charter of Rights and Freedoms ( Charter ). [3] [ 3 ] This application highlights an extremely important and topical issue: whether mandatory minimum penalties can be reconciled with the Charter and Gladue principles. [4] [ 4 ] Iqaluit was shut down by hurricane force winds on October 5th. I heard the application on October 9th. These are my reasons for judgment. II.

FACTS [ 5 ] The facts are not in dispute. [ 6 ] The accused’s girlfriend, Leesa Lyta, was visiting with friends at house 207-D the evening of January 8, 2018. Sometime around 11:15 pm, the accused went to house 207-D. He was sober. He repeatedly asked Ms. Lyta to go home with him. She refused to leave. The accused told her he “could get worse” and he left. [ 7 ] The accused went home where he retrieved a .243 calibre Remington 7600 rifle. He placed the rifle on his ski-doo and then returned to house 207-D. Again, he continued to ask Ms. Lyta to come home.

Once again, she refused to leave. [ 8 ] The accused left the house and went back to his ski-doo. He picked up his rifle and fired one shot which entered the house above the front door near the roof line. The bullet exited through the roof. Ms. Lyta then left the house and went up to the accused. He struck her on the leg with the rifle butt, and they both mounted the ski-doo. They then returned together to their residence – house 7A.

[ 9 ] At approximately 11:45 pm, the police arrived at house 7-A. They discovered the accused’s rifle behind the water tank. The rifle was not loaded nor was it lawfully secured. The accused was arrested and returned to the detachment. On arrest, the police discovered one loaded and one partially loaded rifle magazines in the pocket of the accused’s coat. [ 10 ] Cst. Christopher Spiers interviewed the accused on January 10, 2018. The accused confessed to the crimes. He took full responsibility for his actions. He said he had been angry and upset with Ms.

Lyta because he felt she was not spending enough time with him and their two-year-old daughter, Emma. He was angry that she had gone to her friend’s place without telling him. [ 11 ] The accused admitted that he had taken a shot at the house. He said he aimed at the top of the house. He said he did not aim at anyone. He admitted he knew that he was not allowed to aim a rifle at anyone. He said he deliberately aimed at the top of the house. III. THE LAW A. Intentionally discharging a firearm [ 12 ] The accused is charged with violating Criminal Code s. 244.2(1)(

a) which reads: Every person commits an offence who intentionally discharges a firearm into a place, knowing that or being reckless as to whether another person is present in the place. [ 13 ] The MMP for this offence is stated in s. 244.2(3) (

b) and provides that the accused “is liable to imprisonment of a term of not more than 14 years and to a minimum punishment of imprisonment for a term of four years”. These Criminal Code ss. 244.2(1)(

a) and 244.2(3)(

b) came into force in October 2009. B. Cruel and unusual punishment [ 14 ] As I have noted, the accused has challenged the constitutionally of the MMP. Charter ss. 1, 12 and s. 52 of the Constitution Act 1982 [5] are relevant to my analysis. These provisions read as follows:

Section 1: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Section 12: Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

Section 52: The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. C. Sentencing Aboriginal offenders and Gladue principles [ 15 ] In 1999, the Supreme Court of Canada issued a landmark decision: R v Gladue . That decision provided guidance to Canadians as to how Criminal Code s. 718.2, which pertains to sentencing Aboriginal offenders, ought to be understood and applied. This section, enacted in 1996, states:

718.2 A court that imposes a sentence shall also take into consideration the following principles: … (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders”. [6] [ 16 ] Jail in Canada is imposed as a last resort for all Canadians no matter their ethnic origins. [ 17 ] The Supreme Court of Canada reminded Canadians in Gladue that Parliament had enacted s. 718.2 (

e) to address three pressing societal concerns: 1. The over representation of Aboriginal people in our penal facilities; 2. The presence of systemic racism in our justice system; and 3. How traditional sentencing principles and practices were failing properly to address the needs and realities of our Aboriginal fellow citizens. [ 18 ] Gladue does not say that Aboriginal offenders are to be given better treatment than non-Aboriginal offenders. Gladue does not equate with an Aboriginal sentencing discount.

Nor must the judge draw a causal link between systemic background issues and the offence. [7] Gladue reinforces the constitutional duty of judges to take “judicial notice of the systemic or background factors to sentencing which is relevant to aboriginal offenders”. [8] This is an imperative constitutional and moral duty for judges of the Nunavut Court of Justice. [ 19 ] The Nunavut Court of Justice is a Gladue court. [9] Our Court must account for the unique circumstances of Inuit, their culture and society.

If a sentence is to be considered just, it must be rooted in the realities of the offender and our society. Gladue principles are the lens through which we look at the circumstances of every case. Gladue principles will be prominent in my analysis of the alleged Charter breach of s. 12 in this case. I will say more about Gladue principles shortly. D. R v Nur [ 20 ] The Supreme Court of Canada has set out the approach judges are to take respecting allegations of a s. 12 Charter breach.

The leading case is R v Nur . [10] Nur sets out a three-part test: First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code . Then, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence.

If the answer is yes, the mandatory minimum provision is inconsistent with s. 12 and will fall unless justified under s. 1 of the Charter . [11] [ 21 ] If the answer is no – that the MMP is an appropriate sentence for Mr. Itturiligaq – then the Court in Nur directs the judge to consider another issue: would it be reasonably foreseeable that the MMP would breach the s. 12 of the Charter of other persons? [12] i.

The first branch of Nur – objectives and principles of sentencing [ 22 ] The first branch of the Nur test requires the judge to apply the objectives and principles of sentencing to the circumstances of the case in the absence of the MMP. These objectives and principles are set out in

Part XXIII of the Criminal Code .

[ 23 ] There are six key objectives in the sentencing process. 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community. [13] [ 24 ] In seeking to meet these objectives, Parliament has articulated a guiding and “fundamental principle” which lies at the very heart of the sentencing process. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [14] [ 25 ] In plain language, a sentence must fit the crime and the offender.

This fundamental principle will be at the forefront of my decision. [ 26 ] The Criminal Code also requires a judge to consider and apply other sentencing principles. [ 27 ] A just sentence must consider both aggravating and mitigating circumstances. [15] Aggravating factors serve to increase the sentence. Mitigating factors serve to decrease the sentence.

This requirement highlights the extent to which we believe that a just sentence must account for the circumstances of each individual case. [ 28 ] A just sentence also requires a judge to impose similar sentences for similar offences committed by similar offenders. [16] We call this the parity principle. That principle acknowledged, no two offences or offenders are ever the same.

This reality makes the task of crafting a just individual sentence an art, and not a science. [ 29 ] Where multiple offences are involved, a just sentence must not be unduly long or harsh. [17] We call this the totality principle. [ 30 ] I have already mentioned s. 718.2(e). Jail is imposed as a last resort in Canada [18] , with “particular attention to the circumstances of Aboriginal offenders”. [19] ii. The second branch of Nur – gross disproportionality [ 31 ] The second branch of Nur requires the judge to determine whether the MMP would be grossly disproportionate.

The Supreme Court of Canada in R v Morrisey has explained that this measure refers to “punishment which is so excessive as to outrage our society’s sense of decency”; punishment which would be “abhorrent or intolerable”. [20] [ 32 ] The Morrisey framework, followed in Nur , requires the judge to use a six step analysis. The judge must consider:

1. The gravity of the offence; 2. The particular circumstances of the offence, and the personal characteristics of the offender; 3. The actual anticipated effect of the sentence on the offender; 4. The penological goals and relevant principles of sentencing; 5. The availability of valid alternatives to the imposed punishment; and 6. A comparison of sentences for other crimes in the same jurisdiction. [21] IV. POSITION OF THE PARTIES [ 33 ] I will outline the positions of each party in reference to the Morrisey framework. A.

The Respondent Crown [ 34 ] The Crown urges the Court to impose the four year MMP which would, by necessity, be served in a southern penitentiary. i. The gravity of the offence [ 35 ] The Crown asserts that firearm related offences are of “the utmost seriousness and gravity”. [22] The double mens rea requirement of intention and knowledge means the accused has an elevated moral blameworthiness. [23] ii. Circumstances of the offender and the offence [ 36 ] The Crown asserts that denunciation and deterrence figure foremost in firearm related offences.

Personal considerations particular to the offender while relevant “are to be given less weight”. [24] The Crown highlighted several aggravating factors: the incident’s domestic context, the prevalence of firearm related offences in Nunavut and the deliberate nature of the accused’s actions. Mitigating factors are the early guilty plea and the lack of a prior criminal record. iii.

Actual anticipated effect of the sentence on the offender [ 37 ] The Crown says that the MMP does not prevent the accused from benefitting from “the usual sentence reductions” like credit for pre-trial custody and full parole eligibility after serving 1/3 of his sentence. Indeed, the Crown says that the accused could be released one year after receiving the MMP. iv. Penological goals and relevant sentencing principles

[ 38 ] The Crown says Parliament “is not compelled to enact sentencing provisions which ‘simultaneously pursue all of the traditional sentencing principles’”. [25] Parliament intended to give “priority” to denunciation and deterrence, including general deterrence to address the “pressing and substantial concerns regarding the increase in firearm violence in Canada.” [26] v. Valid alternatives to the punishment imposed [ 39 ] The Crown says jail is necessary. A conditional sentence is not available. [27] vi.

Sentences for other crimes in Nunavut [ 40 ] The Crown asserts that the accused would be liable to a “significant” jail term even in the absence of the MMP. Crown Counsel says the appropriate sentence is in the four year range because firearm related offences are too common in Nunavut and they require “deterrent and exemplary sentences”. This accused possesses a higher degree of blameworthiness than other reported cases. This is so because it was domestic violence and a deliberate act. [28] B. The Applicant Defendant [ 41 ] Defence Counsel urges the Court to strike down s. 244.2(3) (

b) and to impose a two year penitentiary term less credit for remand time followed by probation for 18 months. i. The gravity of the offence [ 42 ] Defence Counsel acknowledges that firearm offences are “very serious” and that deterrence and denunciation are “paramount”. She notes that Parliament has emphasized that these offences are “inherently dangerous and highly disruptive of the public peace”. This offence is “graver” as it involved shooting at a home. [29] [ 43 ] Defence Counsel stated that the accused fired a single shot, he did not intend to hurt anyone and no one was injured.

She acknowledges this offence requires a “stern” response for this “highly dangerous behaviour”. She also acknowledges that greater blameworthiness attaches to the accused because he knowingly broke the law. [30] ii. Circumstances of the offender and offence [ 44 ] Defence Counsel noted the offender is a 24-year-old Inuk who was born and raised in Nunavut. Thus, the Court must apply the Gladue framework. [31] The offender has been in an on-again off-again relationship with Ms. Lyta for four years. They have a two- year-old daughter who lives with them. The accused had a traditional upbringing.

His Inuit culture and knowledge are said to be “very important to him”. He hunts and fishes for country food for sustenance, which he shares with family and community. [32] The offender has completed several programs while on remand. He has been a valuable participant in the Town Crew Program and Inuit Cultural Skills Program. [33] [ 45 ] Concerning the offence, Defence Counsel acknowledged the offender showed “extremely poor judgment” borne of “jealousy and frustration”. She acknowledged the offender tried to “coerce” Ms. Lyta to leave with him.

The domestic context and the deliberate nature of the act are further aggravating factors. Defence Counsel also distinguished the facts from other Nunavut cases, noting that the offender was not subject to any court orders at the time. [34] [ 46 ] Defence Counsel highlighted several “significant” mitigating factors including the offender’s early guilty plea. The offender confessed and accepted responsibility for his actions. He has expressed remorse. He has worked to better himself while on remand. These factors are, she asserts, “strongly tied to the principle of rehabilitation”. [35]

iii. Actual anticipated effect of the sentence on the accused [ 47 ] Defence Counsel asserts that the effect of the MMP would be “severe”. Even after pre-sentence credit, the offender would have to serve three years in a federal penitentiary. She said: For a first-time, youthful offender from a small Inuit community, who has had little exposure to life outside the North, the actual effect of serving a sentence at a federal penitentiary will be extreme. In practical terms, this means that the Applicant will have to serve his sentence thousands of kilometers away from his family.

This sentence will have a severe impact on the Applicant who will presumably have no physical access to his young child or other members of his family during the duration of his stay at the penitentiary”. [36] iv. Penological goals and relevant sentencing principles [ 48 ] Defence Counsel reminded the Court that Gladue principles apply. The Court must consider “systemic and background factors when assessing the offender’s culpability and moral blameworthiness”. [37] She asserts that the Court must show restraint.

The offender has no prior criminal record. [ 49 ] Defence Counsel concluded that that the circumstances of this case “present as less severe than most of the related cases from Nunavut”. [38] V. ISSUES [ 50 ] This Charter application raises three issues. 1. What is the proportionate – just and fit – sentence for this offender in these circumstances? 2. Is the MMP grossly disproportionate and in violation of s. 12 of the Charter ? and, 3.

If the answer is yes, is the MMP saved by s. 1 of the Charter as a demonstrably justified and reasonable limit in our free and democratic society? [ 51 ] For the following reasons, I rule that the MMP would be grossly disproportionate in the circumstances of this case. The MMP clearly violates the offender’s s. 12 Charter rights. [ 52 ] The breach of s. 12 of the Charter is not saved by s. 1 . [ 53 ]

Section 244.2(3)(

b) is unconstitutional and of no force and effect pursuant to Constitution Act 1982 s. 52. VI. ANALYSIS [ 54 ] My analysis of the first branch of the Nur test follows the Morrisey framework.

A. What is the proportionate sentence for this offender in these circumstances? i. The significance of Gladue [ 55 ] Before I embark on the Morrisey analysis, I must say a few more words about Gladue and the centrality of Gladue principles in the Nunavut Court of Justice. [ 56 ] The constitutionality of s. 244.2(3)(

b) has only been considered by two higher courts: the Manitoba and British Columbia Courts of Appeal. In each case, the Court ruled that the

section is constitutional. In doing so, the justices of each Court properly reinforced Parliament’s emphasis of the seriousness of firearm offences. [39] [ 57 ] In his written submissions, Crown Counsel cited Saunders JA. in Oud who wrote: “I cannot conceive of an offence under s. 244.2 for which the mandatory minimum penalty would be said to be cruel and unusual punishment”. [40] With all due respect, the view from the vantage point of the Nunavut Justice Centre in Iqaluit is very different from that in downtown Vancouver. [ 58 ] Our immense country is a confederation and not a unitary state.

No two parts of Canada are identical. Nunavummiut do not experience the terrifying gang-related gun violence which plagues Toronto. Our isolated and remote neighbourhoods “are not war zones”. [41] Still, firearm offences are far too prevalent in Nunavut. [42] [ 59 ] Nunavut forms a distinct society within Confederation. Over 86% of our population is Inuit.

Outside Iqaluit, the percentage of Inuit in our hamlets rises to well over 90% of the population. [43] This is why we say that the Nunavut Court of Justice is a Gladue court. [ 60 ] Because Gladue principles lie at the forefront of my analysis, I will repeat what I said in the Mikijuk case: In my lifetime, Inuit were forced off the land. Many were removed, sometimes forcibly, by alien authority into artificial and isolated communities. Children were taken from the bosoms of their families and sent to far away residential schools. One of the purposes of these schools was to supplant their culture and language.

That painful legacy reverberates today. Sexual predators like Cloughley, De Jaeger, and Horne victimized significant numbers of an entire generation. These victims suffer still and so do their families. The Inuit world and way of life was turned upside down. Inuit society is still adjusting to that collective trauma. Jobs of any kind outside Iqaluit and Rankin Inlet are scarce. What little economy we have is government and mineral exploration driven. There is an ongoing and serious housing crisis. Overcrowding plagues many Nunavummiut. Overcrowding affects their health. It adds stress to an already hard life.

It contributes to our shocking domestic violence statistics. Safe houses for families in distress are few and far between. A shocking number of our children go to school hungry. Social and recreational infrastructure is woefully lacking. Time and time again we are told that utter boredom leads many youths into delinquency. For some, despair and misery lead to thoughts that suicide is an option. Our suicide rate is many times the national average.

Thirty-two Nunavummiut killed themselves in 2016 The Nunavut Court of Justice cannot judge offenders fairly without acknowledging and understanding the real impact of this reality on Nunavummiut. [44] [ 61 ] Like Mikijuk , the present case highlights the challenges in applying pan-Canadian legal principles in Nunavut. As I said earlier this year in R v Anugaa : We recognize that Inuit social governance continues in parallel to the application of pan-Canadian criminal law.

Therefore, we strive to incorporate the precepts of Inuit Qaujimajatuqangit into our judgments and all our practices. [45] [ 62 ] To use a rifle to endanger oneself or others is not only a violation of Canadian criminal law; it is contrary to all Inuit societal values – Inuit Qaujimajatuqangit:

• Inuuqatigiitsiarniq (respecting others, relationships and caring for people); • Tunnganarniq (fostering good spirit by being open, welcoming and inclusive); • Pijitsirniq (serving and providing for family or community or both); • Aajiiqatigiinniq (decision making through discussion and consensus); • Pilimmaksarniq or Pijariuqsarniq (development of skills through practice, effort and action); • Piliriqatigiinniq or Ikajuqtigiinniq (working together for a common cause); • Qanuqtuurniq (being innovative and resourceful); and • Avatittinnik Kamatsiarniq (respect and care for the land, animals and the environment). [ 63 ] This is not to say that Inuit are not subject to the same laws – and sentencing principles – as all other Canadians.

Reference to Inuit Qaujimajatuqangit is, however, a meaningful application of the clear Gladue direction to judges that Aboriginal persons are to be sentenced “differently, in order to endeavour to achieve a truly fit and proper sentence in the particular case”. [46] [ 64 ] The rationale stated in Gladue for this direction touches upon considerations of fundamental justice as it is understood in Nunavut: A significant problem experienced by aboriginal people who come into contact with the criminal justice system is that the traditional sentence ideals of deterrence, separation, and denunciation are often far removed from the understanding of sentencing held by these offenders and their community.

The aims of restorative justice as now expressed in para. (d), (e), and (

f) of s. 718 of the Criminal Code apply to all offenders, and not only aboriginal offenders. However, most traditional aboriginal conceptions of sentencing place a primary emphasis upon the ideals of restorative justice. This tradition is extremely important to the analysis under s. 718.2 (e). [47] [ 65 ] I shall comment later in my analysis on the disconnect between southern and Inuit sentencing concepts and how that disconnect must be faced squarely by sentencing judges in Nunavut. [ 66 ] The foregoing considerations must guide and inform my Nur analysis. ii.

Gravity of the offence [ 67 ] Firearm related violence is extremely serious. This “highly dangerous behaviour” will always attract a “stern” judicial response whether the landscape is urban or rural. [48] The double mens rea requirement of s. 244.2 heightens the moral blameworthiness of the offender. This is especially so in the present case where the sober offender knew there were four people in the house. This offender violated important Inuit social values. iii. Circumstances of the offender and the offence a. Aggravating factors

[ 68 ] Aggravating factors serve to increase an offender’s sentence. There are several aggravating factors in this case: • The offender deliberately fired his rifle; • The offender fired his rifle at a house knowing it was occupied; • This is a case of domestic violence; [49] • The gratuitous assault once the victim joined the offender at his snow machine; • The offender’s controlling and threatening behaviour towards his partner; and • The prevalence of firearm crime not only in Nunavut, but in the offender’s community – Kimmirut. b.

Mitigating factors [ 69 ] Mitigating factors serve to lessen the offender’s sentence. There are several important mitigating factors in this case: • The offender entered an early guilty plea; • The offender has shown remorse and accepted responsibility for his actions upon his arrest and interrogation; • Ms. Lyta has forgiven him; and • The offender does not have a prior criminal record. c. Criminal Records [ 70 ] Criminal records play an important role in sentencing.

Common sense and our notions of justice tell us that a first-time offender will be treated more leniently than someone who commits one serious crime after another. Mr. Itturiligaq is a youthful first time offender. He is not a hardened criminal. d. The Canadian Victims’ Bill of Rights [ 71 ] Victims of crime have the right to be heard in court. [50] They may read out loud, or file, a Victim Impact Statement. These statements bring to life the real effect crime has on peoples’ lives. One cannot judge a crime without understanding how its victims were affected.

These statements help ensure victims are not ignored during the sentencing process. [ 72 ] I was told that Ms. Lyta declined to file a Victim Impact Statement. Crown Counsel did not provide any information concerning the other three victims – the other people who were in the house during the incident. e. Mr. Itturiligaq [ 73 ] The offender is 24-years-old. He was born in Iqaluit but spent his first 15 years in Hall Beach. Since then, he has lived in Kimmirut [51] with his father. He has five siblings. His parents divorced when he was young. He had a traditional upbringing and he hunts and fishes for sustenance.

He is said to be an “avid” hunter. He completed grade 12 and he has a history of employment in the wage economy. He had been employed as a security guard at the local Health Centre at the time of his arrest.

[ 74 ] The offender has been on remand since this January. He has completed four rehabilitative programs while in custody at Makigiarvik Corrections Centre, a minimum security annex of the Baffin Correctional Centre in Iqaluit: Inside Out, Substance Abuse Program, Alternatives to Violence, and Healthy Inuit Families Program. He also participated successfully in the six week Town Crew Program and the Inuit Cultural Skills Program (ICSP). [ 75 ] The offender’s town crew supervisor, Maigne Sese, said: I am proud to say that Itturiligaq, Simeonie is my best worker in town crew.

I have been a Town Crew officer also in the past, and never did I see a dedicated and passionate worker like him. I always brag to others that he’s my best worker. He never complains and has initiative to do task [sic] without me asking. In addition, he’s [sic] character and behaviour is remarkable. He’s always positive and the crew members are fond of him as well. There were times that the other town crew members even joke around and ask him to slow down. [52] [ 76 ] The offender’s ICSP supervisor, Tommy Inookee, wrote: Simeonie really enjoyed while participating in the ICSP.

He had a chance to go seal hunting a few times and had a great time. He also chance to cup [sic] up the seal before it was brought back. And told me that he felt really good to cut up the seal and was hoping it happens again. In the shop Simeonie made a toy sled (kamotik) and took his time making it and enjoyed working on it. He also made 3 knives, seal gaff and a ulu for his girlfriend. Simeonie had no problems or issue while at ICSP and got along well with peers and wanted to be here longer but inmates are only here for the ICSP 6 weeks at a time. [53] [ 77 ] The Court received a Pre-sentence Report.

In the report, the offender’s father, Sam Pikuyak, expressed “shock” that his son acted the way he did. His step-mother, Sheryl Carruthers, said the offender is a quiet person who stays at home and who loves his daughter.

She stated, “it was a rash act and the accused did not think before he reacted”. [54] He continues to have their ongoing support. [ 78 ] The report also references numerous Gladue factors pertaining to the offender: • His parents went their separate ways when he was six or seven years old and he lived with his mother; • He witnessed domestic violence as a child; • His mother was a heavy marijuana user while he was growing up; • He suffers from a hearing deficit and wears a hearing aid; • He experienced the overcrowding so common in the territory, living with his partner and child with his partner’s family.

They have been on a housing waiting list for “a couple of years”; • His education was hampered by his difficulty understanding English because the emphasis was on English language instruction at school; • He won’t qualify to get his job back and there are very few employment opportunities in Kimmirut; and

• He has had thoughts about suicide during his relationship with the victim. [ 79 ] The offender was subject upon remand to an order forbidding contact with Ms. Lyta. That condition was removed on May 14, 2018. Since that time, Ms. Lyta has been visiting him at Makigiarvik where she brings him country food. I was told that they wish their relationship to continue. iv. Actual anticipated effect of the sentence on the offender [ 80 ] Nineteen years after Division from the Northwest Territories, Nunavut still sends its federal offenders to southern Canadian penitentiaries.

Penitentiary time is intended for offenders who cause death or grievous bodily injury to others. Penitentiary time is intended for serial offenders of serious crimes. Penitentiary time is appropriate for offenders who have become hardened criminals. Penitentiary time over a thousand kilometres from home, family, friends and his culture can be expected to have a profoundly negative impact on Mr. Itturiligaq. Four years of penitentiary time in this case would sacrifice four years of his life and rehabilitation on the altars of denunciation and general deterrence. v.

Penological goals and the relevant principles of sentencing [ 81 ] The imposition of a four year mandatory minimum sentence represents a deliberate policy choice made by the duly elected government as passed into law by both Houses of Parliament. The MMP expresses Parliament’s determination to address gun-related violence which is perceived to be a growing and pressing problem. Parliament legislated to give precedence to the principles of denunciation and deterrence.

It was within Parliament’s absolute constitutional jurisdiction to do so. [55] [ 82 ] However, all Acts of Parliament are subject to Charter scrutiny. This is so because the Constitution is the “supreme law of the land”. [56] It is the sworn duty of members of the judiciary to defend the Constitution, the Rule of Law and the rights of Canadians. [ 83 ] The first branch of the Nur analysis now requires that I apply the regular objectives and principles of sentencing for the purpose of comparing a proportionate – just and fit – sentence with the MMP.

In this context, it is important to recall that proportionality “is the sine qua non of a just sanction”. [57] [ 84 ] Above all, the sentence I would impose must serve to protect the public, and to foster respect for our justice system. [ 85 ] The law is clear: denunciation and deterrence are the primary sentencing principles in cases of gun related violence. The sentence I impose must condemn this extremely serious crime. Serious crimes must be seen to have serious consequences.

Furthermore, a balancing of the aggravating and mitigating factors in this case of serious domestic violence requires that the offender be separated from the community. [ 86 ] As I have noted elsewhere, imprisonment is consistent with traditional Inuit justice. [58] When a person threatened the traditional group’s safety and well-being, that person could be, and sometimes was, banished. Many were later welcomed back into the group.

Forgiveness, reconciliation, reintegration and restitution were, and still are, key aspects of Inuit justice; as they are today in the Nunavut Court of Justice. [ 87 ] The Criminal Code requires the judge to emphasize rehabilitation. In my view, this requirement cannot be overstated. Experience has taught us that without rehabilitation, there is every likelihood that the offender will reoffend. In Nunavut, rehabilitation is at the forefront of every sentencing hearing. [59] [ 88 ] The Criminal Code also cautions the judge to exercise restraint.

A jail term must be no longer than what is necessary to accomplish the objectives and sentencing. Judges are also to be especially aware of the circumstances of Aboriginal offenders. Mr. Itturiligaq is a 24-year-old first time offender. The sentence I impose ought not to crush his spirit and hoped-for rehabilitation. However, there is no reasonable alternative to imprisonment for this serious gun related domestic crime.

vi. Valid alternatives to incarceration [ 89 ] As I have noted, there is no reasonable alternative to jail in these circumstances. vii. Sentences for other crimes in Nunavut [ 90 ] This examination focuses on the principle that similar cases ought to be sentenced similarly. Counsel have cited four recent gun related Nunavut cases. [ 91 ] In R v Lyta , a 22-year-old intoxicated and suicidal Inuk male fired 11 rounds of his .22 calibre rifle at the homes of two RCMP officers in Kimmirut. Seven bullets hit the duplex.

Each family sheltered inside where they waited three agonizing hours for the Emergency Response Team [ERT] to arrive from Iqaluit. The offender entered an early guilty plea. He has not intended to hurt anyone. The Nunavut Court of Appeal raised the sentence from the MMP to five years imprisonment. [60] [ 92 ] In R v Utye , a 21-year-old intoxicated Inuk male grabbed a .303 calibre rifle and fired it numerous times as he walked towards the Kimmirut RCMP detachment. He then took up a position on a hill overlooking the detachment. He then unleashed what the judge called “a hail of bullets”.

During the attack, 13 bullets penetrated the detachment and seven more penetrated the police vehicle which was parked outside. The offender was arrested by ten community members as he walked home before the ERT team arrived. The offender pleaded guilty. He received a seven year penitentiary sentence. [61] [ 93 ] In R v Mikijuk , a highly intoxicated, mentally ill and suicidal 28-year-old Inuk male fired at least 11 .17 calibre shots from the window of a residence in Iqaluit’s Happy Valley neighbourhood. The neighbourhood was locked down for almost 48 hours.

At one point, a police Constable returned fire with a sniper rifle, missing the offender. The ERT team was deployed, and reinforcements were flown in from the south. The offender pleaded guilty. I imposed the mandatory four year mandatory minimum penitentiary sentence. The Crown appealed my calculation of pre-sentence credits, but not the sentence. [62] [ 94 ] In R v Ookowt , an extremely intoxicated 19-year-old Inuk male was assaulted as he walked home in Baker Lake. The offender went home and retrieved his father’s 2250 calibre rifle. He positioned himself on a hill which overlooked his assailant’s house.

He fired one shot which went into the house, missing an occupant by a few inches. The offender did not know the house was occupied and he did not intend to hurt anyone. He was out on bail having been previously charged with criminal offences. Johnson J. found that the MMP infringed the offender’s s. 12 Charter rights. He sentenced the offender to two years less a day in jail followed by probation. The case has been appealed by the Crown. [63] viii.

A proportionate sentence [ 95 ] I now consider what a proportionate sentence would be based upon the regular objectives and principles of sentencing. [ 96 ] The sentence I would impose must strongly denounce this serious case of domestic gun related violence. The sentence must put denunciation and deterrence at the forefront. The deterrent message must be strong. Serious crimes have serious consequences. [ 97 ] The tiny population of Kimmirut has experienced significant gun related violence over the recent years.

The residents of Kimmirut have an enduring interest in, and a need for, a strong deterrent message from this Court. [ 98 ] Gun related violence also offends the proper use of firearms in Inuit culture. Hunting is central to Inuit identity and community. Indeed, the presence of harvesting rights in

Article 5 of the Nunavut Land Claims Agreement speaks to the central importance of hunting to the individual and collective identity of Inuit. [64] Many Nunavummiut also continue to rely on country food for their sustenance. The sentence I impose must reaffirm not just the necessity, but the centrality of responsible firearm use in Nunavut. [65] [ 99 ] 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. The Nunavut Court of Justice has been in the

forefront in condemning spousal and relationship violence. The sentence I impose must do so as well. [ 100 ] I am also obliged to exercise restraint in passing sentence. The law directs me to impose the least restrictive sanction sufficient to meet the objectives and principles of sentencing. The question I must resolve is: what least restrictive period of jail time adequately addresses the circumstances of this case in addition to the objectives and principles of sentencing? [ 101 ] A just sentence must fit the crime and the offender.

As I noted earlier, proportionality is the fundamental principle in sentencing. In this regard, the four Nunavut cases I reviewed above are instructive. I will focus on Mikijuk and Ookowt as they are the most pertinent comparators. [ 102 ] Mikijuk clearly was far more severe on the scale of seriousness than the present case. The Crown in that case recommended a five year penitentiary term. I imposed the four year MMP which the Crown did not appeal. To impose the same four year sentence on Mr.

Itturiligaq as in Mikijuk would, among others, violate the principle that like cases ought to be sentenced alike. [ 103 ] The facts of Ookowt are much closer to the present case. Johnson J. in that case found that the MMP breached Charter s. 12 . He sentenced that offender to territorial time of two years less a day followed by probation. I find Johnson J.’s reasoning in Ookowt to be persuasive. In my view, Ookowt is a well-reasoned precedent. Ookowt is persuasive authority that Mr.

Itturiligaq ought to receive a jail term significantly less than the MMP. [ 104 ] There were two key aggravating factors in Ookowt which are absent here. First, Mr. Ookowt breached his bail conditions to keep the public peace when he committed his crime. Second, Mr. Ookowt decided to retrieve his father’s rifle to exact revenge on his assailant while he was highly intoxicated. In my view, Mr. Ookowt’s moral blameworthiness was arguably as high as that of Mr.

Itturiligaq. [ 105 ] I also agree with Johnson J.’s comments in Ookowt concerning the uneven application of Gladue principles. [66] Gladue principles are to be applied no matter the gravity of the offence. [67] [ 106 ] I stated earlier that justice must be rooted in the community it serves. We find this fact rooted in the core of the Supreme Court of Canada’s directions in Gladue and Ipeelee .

It follows, in my view, that one cannot sentence Nunavummiut without considering the precepts of Inuit Qaujimajatuqangit. [ 107 ] The norms of Inuit social governance were based, in part, on the primacy of the interests of the group. The cohesion and security of the group rested largely on cooperation and mutual support in a harsh and unforgiving climate.

Not surprisingly, forgiveness, reconciliation, reintegration, restitution and understanding became hallmarks of Inuit social governance. [ 108 ] Rehabilitation, reconciliation and reintegration continue to be as relevant to Nunavummiut today as they have always been. The Nunavut Court of Justice honours and is mindful that tradition. More importantly, these Inuit norms must be considered by the judge when crafting a just and fit sentence. [ 109 ] In this regard, there is some common ground between Inuit and Qallunaaq legal norms.

Most of us are familiar with the maxim that justice must always be tempered with mercy. [ 110 ] I must not lose sight of this youthful first-time offender’s efforts to date and his real potential for rehabilitation. [ 111 ] Mr. Itturiligaq had a traditional upbringing. His life is intimately connected to his land – the land of his ancestors. In this Court, we hear frequent submissions from counsel on the impact a loss of liberty has on a traditionally raised Inuk. Time and again, we are reminded that house arrest is a meaningful sanction for someone deeply rooted in the land.

The negative impact of incarceration in a corrective facility – especially one in the south where the offender is isolated from community – is multiplied.

[ 112 ] A just a fit jail sentence in this case would be in the range of 18 months to two years less a day in in territorial jail. The restraint principle is a constitutional requirement which must be given more than mere lip service. 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. B.

Gross disproportionality [ 113 ] I turn now to the second branch of the Nur test – is the MMP grossly disproportionate having regard to all the circumstances of the offence and offender? [ 114 ] I have just determined that the proportionate jail sentence in this case is 2 years less a day, or 24 months less a day, in jail. The MMP requires four years in a federal penitentiary or 48 months. The test is not merely mathematical.

However, the resulting 24 month difference (in fact, two years plus a day) in sentence is, in my view, a highly significant factor. [ 115 ] Where the offender will serve his sentence is also a significant factor for Nunavummiut. The minimum security Makigiarvik Corrections Centre is in Iqaluit and the offender has progressed extremely well there. The offender is from Kimmirut. Kimmirut is the closest hamlet to Iqaluit, and there is much traffic between the communities, especially in winter. Ms.

Lyta and their two-year-old daughter, Emma, would be able to continue to visit him. [ 116 ] There is no federal penitentiary in Nunavut. Inuit must serve their federal prison time in the south where they are forced to live in isolation from their culture, family and social networks. In many ways, the federal penal system is a twenty-first century continuation of the philosophy of forced resettlement, Residential Schools and southern tuberculosis sanitaria.

Many Nunavummiut cannot understand why we continue to let our offenders be sent south. [ 117 ] This case also highlights concerns expressed by the Commissioners of the Truth and Reconciliation Commission.

The Commissioners noted, in my view correctly, that MMPs undermine the ability of the courts to apply Gladue principles. [68] Their call to action is a clarion call that resonates with those of us who live, fish, hunt, work and raise our families here: Call to Action: 32) We call upon the federal government to amend the Criminal Code to allow trial judges, upon giving reasons, to depart from mandatory minimum sentences and restrictions on the use of criminal sentences. [69] [ 118 ] For justice to be seen to be done by Nunavummiut, this Nur analysis must account for Gladue .

This Nur analysis must account for Inuit Qaujimajatuqangit. The mandatory minimum regime is, in reality, a perpetuation in Nunavut of last century’s systemic colonialism and discrimination. [ 119 ] Anglo-Canadian judicial concepts such as denunciation, deterrence and retribution do not rest easily with Inuit conceptions of reconciliation, reintegration and group harmony – restorative justice. This reality has been experienced by those of us who have travelled extensively with our circuit court around the territory.

This reality reflects, in part, the fact that Nunavummiut continue to live in extremely small, isolated communities. [ 120 ] As I explained in Anugaa , this court travels to all 25 of our territory’s far-flung and remote communities. Many months may pass in the smallest hamlets between court sittings. By the time cases are dealt with in court, many parties have already reconciled and have moved on with their lives. Resentment and stress are triggered when the justice system insists these proceedings continue to a legal resolution.

Resentment, stress and anger often arise when offenders are sent to jail outside the community against the express wishes of the victim, family and sometimes the community. [ 121 ] This analysis speaks directly to the issue of gross disproportionality. It speaks directly to our society’s conception of what constitutes justice. Commentators have noted recently the perception that many courts have given mere “lip service” to Gladue principles. [70] Not so in the Nunavut Court of Justice.

As I stated earlier, judges of this Court have a moral as well as a constitutional duty to apply Gladue principles meaningfully when sentencing Inuit offenders.

[ 122 ] In my view, the MMP is far removed from the least restrictive sentence required to meet the objectives and principles of sentencing. [ 123 ] Taken together, these considerations persuade me that the MMP violates the principles of proportionality, parity, rehabilitation, restraint and Criminal Code s. 718.2. In the process, the MMP in this case is out of all proportion to a fit and just sentence – it is grossly disproportionate. [ 124 ] If I were I to impose the MMP in a southern penitentiary in the present circumstances, it would be considered intolerable by fair minded Nunavummiut. To send Mr.

Itturiligaq to a southern penitentiary in these circumstances would indeed outrage Nunavummiut’s collective and traditional sense of decency and justice. C. Charter

Section 12 – Conclusion [ 125 ] In conclusion, the four year MMP imposed by s. 244.2(3) (

b) violates Mr. Itturiligaq’s s. 12 Charter rights.

Section 244.2(3)(

b) constitutes cruel and unusual punishment. [ 126 ] It is not necessary for me to consider the issue of the reasonable hypothetical in this case because the sentence is grossly disproportionate for Mr. Itturiligaq. VII. CHARTER

SECTION 1 A. The third branch of Nur – Is the MMP saved by

section 1 of the Charter as a demonstrably justified and reasonable limit in our free and democratic society? [ 127 ] The test I must apply at this stage was set out by the Supreme Court of Canada in Nur . I must decide whether the Crown has demonstrated that the MMP has a “pressing and substantial objective” and is “proportionate” to achieving that objective. [71] [ 128 ] The Supreme Court has set out an extremely high bar for this part of the analysis.

In the words of McLachlin CJC.: It will be difficult to show that a mandatory minimum sentence that has been found to be grossly disproportionate under s. 12 is proportionate as between the deleterious and salutary effects of the law under s. 1. [72] [ 129 ] Crown Counsel has conceded that s. 244.2(3) (

b) cannot be saved by s. 1 should I find the MMP to be grossly disproportionate. [ 130 ] I adopt the reasoning of McLachlin CJC. Having found the MMP to be grossly disproportionate in this case, it cannot be seen to be proportionate under s. 1. B. Charter

section 1 – Conclusion [ 131 ] I declare Criminal Code s. 244.2(3)(

b) to be unconstitutional and of no force and effect pursuant to s. 52 of the Constitution Act 1982 . VIII. SENTENCE

[ 132 ] Stand up, please, Mr. Itturiligaq. [ 133 ] I sentence you to two years less a day in jail. [ 134 ] You have been in custody for 277 days. You are entitled to receive credit for pre-sentence custody at the rate of one-and-a-half-to- one, or 416 days. You will serve a further 303 days in jail. [73] [ 135 ] This will be followed by probation for two years.

You shall: • Report to the local probation office within two business days of your release from jail and thereafter as required; • Keep the peace and be of good behaviour; • Take any counselling as directed by your probation officer including anger management and healthy relationship counselling; • Refrain from communicating directly or indirectly with Neevee Akavak, Eshuaktoo Ikkidluak and Tommy Padluq unless their written consent is given to your probation officer; • Appear in court when required to do so by the court; • Notify your probation officer of any change in your address, employment or name. [ 136 ] I am also required to impose a number of ancillary, or related, orders.

I impose: a. A mandatory firearms prohibition for life pursuant to Criminal Code s. 109; and b. I grant a Criminal Code s. 113 order authorizing competent authority to issue you a fire license or registration certificate for sustenance or employment purposes; c. A mandatory DNA order pursuant to Criminal Code s. 487.05; d. Forfeiture of the seized 7600 Remington rifle and ammunition; and e. A victim fine surcharge of $200. You have two years to pay the surcharge upon your release from jail. [ 137 ] Good luck, Mr. Itturiligaq.

No one wants to see you get into trouble again. [ 138 ] And again, I thank counsel for their excellent oral and written submissions. [ 139 ] Taima.

Dated at the City of Iqaluit this 11th day of October, 2018 ___________________ Justice P. Bychok Nunavut Court of Justice [64] Agreement Between the Inuit of the Nunavut Settlement Area and Her Majesty The Queen in Right of Canada , 25 May 1993 (Ottawa, ON: Published under the joint authority of the Tungavik and the Hon T Siddon, Minister of Indian Affairs and Northern Development, 1993), online: < http://www.justice.gov.nu.ca/apps/UPLOADS/fck/file/NLCA.pdf > [Nunavut Land Claims Agreement or NLCA]