R. v. Ookowt, 2017 NUCJ 22

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Ookowt, 2017 NUCJ 22 Date: 20170922 Docket: 15-16-41 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Cedric Ookowt ________________________________________________________________________ Before: The Honourable Mr. Justice Earl D. Johnson, Deputy Judge Counsel (Crown): I. Nault Counsel (Accused): J. Morton Location Heard: Iqaluit, Nunavut Date Heard: September 22, 2017 Matters: Criminal Code, RSC, 1985, c C-46, s 244 ; Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 12. REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication)

I. INTRODUCTION [1] The accused, Cedric Ookowt, entered a guilty plea to the charge that he did on June 29, 2016, in Baker Lake intentionallydischarge a firearm at a place while being reckless as to whether another was present at that place, contrary to

section 244.2(1)(

a) of theCriminal Code, RSC, 1985, c C-46 [Criminal Code]. He also entered guilty pleas to dangerous driving on April 28, 2016 in Baker Lakeunder section 249(1)(

a) of the Criminal Code and to evading a police officer under

section 249.1(1) of the Criminal Code. [2] I conducted a Gardiner type sentencing hearing that included some viva voce evidence by the accused that supplemented hisaffidavit sworn on January 28, 2017. The Crown filed a binder of sentencing materials. It included the following: an undertaking onwhich the accused was in regard to the dangerous driving and evading police charges; statements of the accused, Kenneth Arngnanaaq,Arnold Arngnanaaq and other witnesses; and, finally, photographs and a pre-sentence report. [3] The Crown agreed that the sentence for the dangerous driving and evading police charges should be concurrent to the

section 244of the Criminal Code four-year minimum sentence. [4] A conviction under

section 244 of the Criminal Code requires this Court to impose a mandatory minimum punishment (MMP)sentence of four years in jail. Defence Counsel filed a Notice of Constitutional Challenge arguing that the MMP required is grosslydisproportionate to the sentence that would have been imposed if the standard sentencing principles of the Criminal Code were applied tothe facts of this case and as a result is a cruel and unusual punishment as prohibited by

section 12 of the Canadian Charter of Rights andFreedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. [5] The Crown submitted that the sentence I should impose is the four-year minimum sentence. Defence Counsel submitted that theapplication of the Criminal Code sentencing principles should result in the imposition of a sentence in the 18-month to two years less oneday range. To impose this sentence, this Court will have to find that the four-year MMP for this charge is contrary to

section 12 of theCharter. II. LAW [6]

Section 244.2(1)(

a) of the Criminal Code came into force on October 2009 as a new nominate offence. There is no predecessor toit. The applicable MMP provision was concurrently enacted as

section 244.2(3)(b). For many years preceding the enactment of section244.2, courts consistently upheld four-year MMP sentences for firearm-related offences. In R v Birchall, 2001 BCCA 356, 158 CCC(3d) 340, the British Columbia Court of Appeal affirmed the constitutionality of a four-year MMP for manslaughter. In R v Morrisey,2000 SCC 39, [2000] 2 SCR 90 [Morrisey], the Supreme Court of Canada confirmed the four-year MMP for criminal negligence causingdeath with a firearm as compliant with

section 12 of the Charter. [7] The courts of appeal for Manitoba and British Columbia are the only appellate courts that have addressed the constitutionality ofsection 244.2(3)(

b) of the Criminal Code. Both have upheld the MMP as constitutional, reversing lower court trial decisions. [8] In R v Oud, 2016 BCCA 332, 339 C.C.C. (3d) 379 [Oud], the offender was a 35-year-old non-indigenous Canadian with a loneimpaired driving conviction on his record. He was a cocaine addict and while intoxicated one night he sought to “make a point” byfiring seven shots into a drug house after the occupants ripped him off in an unsuccessful drug deal. One bullet grazed the cheek of anoccupant, while the other six bullets lodged into the structure of the house without harming anyone.

The lower court found the MMPunconstitutional but the finding was reversed in the court of appeal. [9] In R v McMillan, 2016 MBCA 12, 326 Man R (2d) 56 [McMillan], the 19-year-old non-indigenous offender had been subjected tosignificant bullying over the course of a year. He retaliated against the person he thought was responsible for the graffiti that appearedon the town’s Post Office identifying and mocking him. The offender fired six shots at the target’s home. Four of the bullets wentthrough the window, narrowly missing the residents within.

The Manitoba Court of Appeal reversed the lower court finding that theMMP violated

section 12 of the Charter. [10] The analytical framework under

section 12 has evolved. It is set out in R v Smith (SCC), [1987] 1 SCR 1045, 15BCLR (2d) 273 [Smith]; R v Goltz (SCC), [1991] 3 SCR 485, 61 B.C.L.R. (2d) 145; Morrisey; R v Ferguson, 2008 SCC6, [2008] 1 SCR 96; R v Nur, 2015 SCC 15, [2015] 1 SCR 773 [Nur]; and R v Lloyd, 2016 SCC 13, [2016] 1 SCR 130 [Lloyd]. [11] As set out in paragraph 86 in Smith, the test is whether or not the punishment is “so excessive as to outrage standards of decency”.In order to establish that a particular sentencing provision gives rise to cruel and unusual punishment contrary to

section 12 of theCharter, the punishment must be shown to be grossly disproportionate. [12] In Nur, the Supreme Court of Canada clarified the analytical framework to apply when a court considers a

section 12 Charterchallenge. First, the court must undertake a particularized inquiry into the circumstances of the individual offender. Second, the courtmust take into account the application of the MMP in reasonably foreseeable cases.

[ 13 ] At the first stage, the court must consider whether the impugned sentencing provision is grossly disproportionate to the individual offender.

This involves a particularized inquiry into the appropriate sentence in the circumstances and a determination of whether the MMP is grossly disproportionate to that specific offender. [ 14 ] In considering whether the MMP is grossly disproportionate to the sentence that would have been imposed in a standard sentencing of the accused person before the court, four factors must be considered: • the gravity of the offence; • the personal characteristics of the offender and the circumstances of the offence; • the actual effect of the punishment on the offender; and • the penological goals and sentencing principles underlying the sentence. [ 15 ] No single factor alone will necessarily be determinative of the question of gross disproportionality.

If the impugned sentencing provision is not shown to be grossly disproportionate in its application to the particular offender, the court must move on to the second stage of the analysis. [ 16 ] At the second stage, the court must consider whether the impugned provision is grossly disproportionate when applied to reasonably foreseeable cases. [ 17 ] In Nur , the court ruled that a three-year MMP for unauthorized possession of a prohibited or restricted firearm violated

section 12 of the Charter . The court reasoned that the MMP captured a wide-range of potential conduct that included offenders who would be minimally blameworthy because they had merely made a mistake. While most offenders would merit the MMP, including the accused in the case before the court, when applied to the reasonably foreseeable case of an offender who commits a mere licensing offence and inspires no real risk to public safety, the Supreme Court found that the MMP would result in a grossly disproportionate sentence. [ 18 ] As noted in R v Appulonappa , 2015 SCC 59 , [2015] 3 SCR 754 , the reasonable hypothetical inquiry under

section 12 is similar to that a court employs when considering a constitutional challenge to legislation on the freedom of speech grounds under

section 2(

b) of the Charter or the overbreadth analysis under

section 7 of the Charter . In each of these cases, the court is simply asking: 1) what is the sweep or reach of the law; and 2) is the law constitutional in these foreseeable cases. [ 19 ] In R v Vu , 2015 ONSC 5834 , [2015] OJ No 5278 , a recent post- Nur decision, Durno J. struck down a three-year MMP relating to the production of marijuana. [ 20 ] In R v Shobway , 2015 ONCJ 457 , 2015 CarswellOnt 12662 [ Shobway ] , the court struck down a section 99(2) (

a) of the Criminal Code that imposed a three-year MMP for the unauthorized transfer of a restricted firearm. As in Nur , the court held that it was reasonably foreseeable that this provision would capture conduct at the lower end of the spectrum of moral blameworthiness and in such cases would amount to a grossly disproportionate sentence. [ 21 ] In the event that this Court finds that the sentence is grossly disproportionate or offends one of the reasonable hypotheticals, the Crown may make submissions on the application of

section 1 of the Charter . Both counsel agreed that if this aspect of the analysis becomes a live issue, it would be argued at a later date. III. THE FACTS [ 22 ] The accused is an Inuk who was born on January 1, 1997. He was 19 at the time of the offence and is now 20. Prior to this incident he had no criminal record. [ 23 ] He was raised by his parents and is the middle child of five children. He has a close relationship with his family and siblings. He indicated in the pre-sentence report that he never experienced any physical abuse while growing up. However, his father was an

alcoholic who drank regularly and would frequently pass out while watching movies or listening to music. His mother similarly indicated that the accused grew up in a healthy, loving and supportive family home. He was raised in a traditional lifestyle that included camping, hunting, fishing and the maintenance of a dog team. His mother also indicated that the accused was always very helpful to the family and was very good at repairing bicycles and small engines.

She admitted that her husband occasionally drank alcohol but did not think that he abused it. [ 24 ] The accused quit school when he was in Grade 11 or 12 to pursue a hunting lifestyle. He can read and write in English, but cannot do so in Inuktitut, although he can speak and understand it and uses it when he speaks with elders. [ 25 ] The accused has not participated in the wage economy but has earned money from harvesting and selling animal furs. He used the money he earned to purchase a snowmobile with his mother’s assistance.

When the snowmobile arrived about four years ago, the accused quit school and started living a traditional lifestyle of hunting and fishing. The accused, his father and elder brother support the immediate family with traditional food. [ 26 ] The accused admitted to drinking alcohol since he was 17 and to starting by stealing the remains of bottles from people who had passed out. His alcohol consumption increased in 2016, after a good friend committed suicide. [ 27 ] On the early morning of June 16, 2016 he and a friend, Richard, started drinking when they were out on the land.

The accused testified that he had three 40 ounce bottles of whisky with him and they had consumed two of them when Richard dropped him off later in the day, around 6 p.m., at the home of Kenneth Arngnanaaq. Kenneth was Arnold Arngnanaaq’s uncle and Arnold lived with him. The accused testified that he was walking on the street when he was jumped by Arnold because Arnold wanted his alcohol. Arnold physically attacked him and punched him in the face while he was walking. Arnold admitted in his statement that he beat him up a little.

Richard saw a fight outside and near Kenneth’s house and helped to break it up some time between 6 and 8 p.m. Richard heard the accused say he was going to get a gun. [ 28 ] The accused testified that he was highly intoxicated and experienced a blackout from the drinking bout. He put himself at 10 on a scale of one to 10. Despite the high level of intoxication, the accused was able to walk home to retrieve his father’s 2250 calibre rifle and position himself on a hill overlooking Kenneth’s house. He was anxious and upset and feared for his security. [ 29 ] The hill overlooked a number of houses.

Kenneth’s house had four windows facing the hill. [ 30 ] The accused then fired one shot from the rifle into the window that was furthest to the left from his vantage point. Kenneth was in his living room watching television when the bullet shattered the window and missed him by a few inches. Arnold was not in the home. [ 31 ] The accused did not intend to physically harm anyone and was not aware if anyone was in the house. [ 32 ] The accused testified that Arnold regularly bullied him since he was 12 or 13.

He said the bullying increased in the year before the incident and took the form of verbal abuse and some shoving and pushing. Arnold denied the bullying in his statement and in cross- examination the accused was vague and did not provide many particulars. [ 33 ] At the first paragraph on page seven of the pre-sentence report, the community corrections officer indicated that the accused’s mother learned from his friends while he was in custody that Arnold had bullied him regularly in the year before the shooting. Arnold would verbally attack and belittle the accused from his vehicle as the accused walked home.

This bullying coincided with increased requests by the accused to be driven to sporting events in the community that his mother wondered about. It started to make sense after she heard about the bullying. [ 34 ] Although the accused was a little vague in describing the earlier bullying, I am satisfied that Arnold regularly bullied the accused in the year before the shooting. I also accept the accused’s uncontradicted evidence that Arnold provoked the fight by trying to steal his alcohol.

Arnold was also much older and much bigger than the accused and beat him up in the fight. [ 35 ] At the time of the shooting, the accused was on an undertaking to keep the peace and to abstain from alcohol with regard to the

dangerous driving and evade police charges. IV. POSITIONS OF THE PARTIES A. Crown (i). Gravity of the offence [36] The Crown noted the statement in Morrisey that this Court should consider the gravity of the offence generally, rather than theparticular circumstances of the accused. This involves an assessment of the mens rea of the offence rather than the offender’s motive orgeneral state of mind. As stated in paragraph 36 of Morrisey, the Court must “attribute greater moral blameworthiness to those whoknowingly break the law than those who do so unintentionally”. [37] To satisfy the constituent elements of

section 244.2(1)(

a) of the Criminal Code, the offender must intend to discharge a firearm at aplace knowing or being reckless as to whether another person was present at that place. As noted in Oud, this double mens rearequirement ensures that the provision is narrow enough in scope to capture only circumstances where there is a substantial moralculpability and significant risk of harm or death.

As noted in Nur, this is not a provision that “captures conduct that falls short of truecriminal conduct.” [38] As noted by Kilpatrick J. in R v Utye, 2013 NUCJ 14, 2013 CarswellNun 19 [Utye], the fact that nobody was injured does notsignificantly reduce the gravity of the offence. [39] As stated in McMillan, the offence is made graver by the accused having shot into a personal residence. (ii.) Personal circumstances of the offender and circumstances of the offence [40] As noted in McMillan, it is well established that denunciation and deterrence are the paramount sentencing principles in firearm-related offences.

Personal factors are relevant but are to be given less weight. [41] Since the accused is Inuk, he is entitled to the sentencing consideration pursuant to the framework established in R v Gladue (SCC), [1999] 1 SCR 688, 133 CCC (3d) 385 [Gladue], and R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433 [Ipeelee].

However, as Sharkey J. pointed out in a similar case of R v Geetah, 2015 NUCJ 10 at para 162, 2015 CarswellNun 8 [Geetah], thisimperative “should not be taken as requiring an automatic reduction of a sentence of an otherwise warranted sentence”, particularly incircumstances of violent crime. [42] The facts and personal circumstances of the accused are remarkably similar to the second hypothetical considered in Oud, whichwas not modelled on the McMillan case then pending appeal. Nevertheless, the court found the MMP was not grossly disproportionate. [43] The Crown disputes that Arnold bullied the accused.

However, even if this claim is accepted by the Court, McMillan is clear thatit has little mitigating effect on the sentence. [44] The premeditated and planned nature of the accused’s conduct is an aggravating factor as noted in Utye. As in Utye¸ the accusedwas an experienced hunter who chose a site overlooking the target with a good vantage point. As a hunter, he knew the power anddestructive potential of this firearm. The precision of the shot from such a significant distance with a single bullet suggests the accused isan excellent marksman.

[ 45 ] It is also an aggravating factor that the accused was bound by conditions of an undertaking. He was bound to keep the peace and be of good behaviour and to abstain from the consumption of alcohol. Despite these obligations, he was intoxicated when he fired the shot, as was the accused in Utye. However, he was not so intoxicated that he was unable to load, aim and fire the rifle with fair precision on the target. (iii).

The actual effect of the punishment on the offender [ 46 ] The four-year term of custody in a penitentiary is a very serious sentence and does not in itself constitute a cruel and unusual punishment. As noted in Morrisey , the imposition of an MMP does not exclude typical sentence reductions such as those contemplated by the parole eligibility regime and routine deduction of pre-trial custody. These options mitigate the harshness of such a sentence. [ 47 ] The accused is young and this is his first time in a custodial institution.

These factors are to be considered when assessing the total impact of the sentence. (iv). The penological goals and sentencing principles underlying the sentence [ 48 ] As noted in McMillan and Nur , denunciation and deterrence are the most important sentencing considerations in firearm-related crimes. In R v Lyta , 2013 NUCA 10 , 561 AR 146 [ Lyta ] , the Nunavut Court of Appeal held that prevalence of a particular offence in a particular area was a relevant sentencing factor.

As Bychok J. recently stated in R v Mikijuk , 2017 NUCJ 2 at para 49 , 2017 CarswellNun 3 [ Mikijuk ] , firearm-related crime is far too prevalent in Nunavut and it is important to send a message about firearm safety and its responsible use. [ 49 ] As established in Utye , Lyta, Geetah and Mikijuk, the range of sentence for this type of offence in Nunavut is between four and seven years. B. Defence: [ 50 ] Defence Counsel did not challenge the arguments advanced by the Crown on the gravity of the offence or the penological goals and sentencing principles underlying the sentence.

Instead, the Defence Counsel focused on the application of Gladue and Ipeelee to the facts of this case. [ 51 ] The Counsel submitted that the confrontation with Arnold—where the accused was beaten up—was evidence of provocation in the non-legal sense. It explains the accused’s conduct, but does not justify it. There was also regular bullying in the year before the incident and Arnold is older and much bigger than the accused. [ 52 ] As noted in the pre-sentence report, the accused was very intoxicated at the time of the incident and regrets what he had done.

There is a history of alcohol abuse by the accused’s father and the accused began drinking at a young age. His best friend committed suicide in 2015 and since that event the accused’s drinking has spiralled out of control. [ 53 ] As stated in the pre-sentence report, the accused was raised in a home that actively pursued a traditional lifestyle of camping, fishing and hunting. Although he never finished high school, the accused has developed skills that have permitted him to generate some income. He regularly sells pelts to the Department of Environment and he can fix bicycles and small motors.

[ 54 ] The accused has a good relationship with his mother in Baker Lake and his aunt in Ottawa. He has family support and is a strong candidate for rehabilitation. [ 55 ] Although not employed in the wage economy, the accused has not wasted his time sitting at home watching television. He has put his traditional skills to use and has generated income through the sale of furs from animals he has trapped and from selling game he has killed. [ 56 ] In

summary, he is a young aboriginal with no record who entered an early guilty plea and presents as a good candidate for rehabilitation. As a result, he has satisfied the Ipeelee factors that would justify the imposition of a significantly lesser sentence than the harsh four-year MMP. In all of the circumstances, a sentence of 18 months to two years less a day would be appropriate and the MMP at double that length is grossly disproportionate. [ 57 ] The tests enunciated in Nur are satisfied.

The MMP for the offence that the accused committed covers a wide range of conduct and his conduct in this case is less blameworthy. V. ANALYSIS [ 58 ] The evolution of the case law has clarified most of the issues regarding the

interpretation of the MMP legislation directed at firearms. The legislation concerns both the regulation and use of firearms. Those sections directed at the regulation of firearms—as was the case in Nur and Shobway —have not survived a

section 12 Charter challenge. However, provisions directed at the use of firearms— such as

section 244 of the Criminal Code —have survived challenges. [ 59 ] As noted by the British Columbia Court of Appeal at paragraphs 32 and 33 of Oud , the rationale behind the different results comes from the analysis in Lloyd and McMillan that concludes this

section is sufficiently specific and does not cast an overly-broad net because of the double mens rea requirement. It was not challenged in the Nunavut cases of Lyta , Utye, Geetah or Mikijuk because the facts were on the high-end of the moral culpability scale, with multiple shots fired in all cases. A four-year sentence was justified in all cases regardless of the MMP. [ 60 ] In this case, only one shot was fired and the accused is a youthful first time offender. Although the facts of this case clearly fall within the ambit of

section 244 of the Criminal Code , Defence Counsel advances a compelling argument that the sentence imposed without the MMP would have been two years less one day and that, in this case, the imposition of the MMP would constitute a cruel and unusual punishment under

section 12 of the Charter . [ 61 ] Defence Counsel argues that the bullying experienced by the accused moves his conduct lower down on the scale of moral culpability. The Crown argues that the bullying is irrelevant. [ 62 ] The Defence’s argument was rejected by the Manitoba Court of Appeal in McMillan .

At paragraphs 24 and 25, the Court held that the bullying had little mitigating value because the accused’s actions were not a sudden or spontaneous lashing out and because the premeditated violence was completely disproportionate to the bullying he had suffered. [ 63 ] Clearly, the accused’s actions in this case were completely disproportionate to the bullying he had suffered and he did not spontaneously lash out. However, I do not accept the Crown’s submission that the bullying was irrelevant. The Court in McMillan accepted that bullying was a form of intimidation and abuse that was relevant to the sentencing.

However, when dealing with a serious offence like shooting into a house, the primary focus should be on the offender’s conduct rather than on his personal factors. The bullying and the attempt to steal the alcohol should be given less weight, but these factors are relevant. [ 64 ] The accused in McMillan was the same age as Mr. Ookowt and was on probation at the time of the offence. However, he had no previous convictions for crimes of violence. The Trial Judge imposed a one-year jail term.

The Court of Appeal was persuaded the sentence was demonstrably unfit when compared to the 40-month sentence imposed in Nur and the 60-month sentence in Lyta and found a fit and proper sentence was 48 months.

[ 65 ] In Oud , the Trial Judge felt that a four years was a fit and appropriate sentence, but found the MMP was unconstitutional as a result of the reasonable hypothetical analysis. In all of the Nunavut cases, the courts have applied the MMP or imposed higher sentences for far more serious shooting incidents. [ 66 ] The sentencing in this case raises the issue of whether there is room for a sentence below the four-year plateau set by these cases. It is arguable whether one shot is any less dangerous than many shots. The hypothetical considered in Oud was remarkably similar to the facts in this case.

At paragraph 28, the Court of Appeal noted the hypothetical posed by the Trial Judge as follows: “In this hypothetical an 18-year-old man with no related criminal record fires a single shot into a house with a non-restricted, non- prohibited firearm for which he has a permit. He believes the house is unoccupied but is reckless as to whether anyone is present and in fact persons are present, although there is no actual endangerment of people and no injury is caused to the occupants.

The shooting is unrelated to drugs or a criminal organization, but rather is motivated by the offender’s desire to ward off or intimidate persons who have bullied the offender.” [ 67 ] In rejecting the Trial Judge’s analysis on this hypothetical, the Court of Appeal stated at paragraph 38: “The bullying hypothetical discussed by the judge, in my view, cannot be adequately distinguished from the central premise of the offence, which is that the intentional discharge of a firearm, knowing or being reckless whether others are in the place targeted, is highly dangerous behaviour that will attract a stern response.

This premise is a statement of values and behaviour for all landscapes of Canada, both urban and rural. I do not consider the hypothetical offence is differentiated from the harm intended to be addressed — there is no small offence encompassed by the double mens rea of s. 244.2.” [ 68 ] As Bychok J. noted at paragraph 48 in Mikijuk , firearm related crime is far too prevalent in Nunavut and these comments from the Court of Appeal are equally applicable to Nunavut. [ 69 ] The one shot fired by the accused missed Kenneth by inches.

This fact is not a mitigating factor, but it permits the accused to avoid the further aggravation of multiple shots. As noted by dissenting Slatter J. at paragraph 47 of Lyta : “multiple shots are a further aggravating factor.” [ 70 ] 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. [ 71 ] The major difference between the McMillan hypothetical and this case is that the accused is aboriginal and is therefore entitled to sentencing consideration pursuant to the framework established in Ipeelee and Gladue . I am satisfied that a fit and proper sentence would be less than four years before this analysis. [ 72 ] As Bychok J. stated at paragraph 16 in Mikijuk , “In fact, the Nunavut Court of Justice is a Gladue court. We serve all Nunavummiut.

To make a long explanation short, our court must account for the unique circumstances of the Inuit people, their history, and society. And, importantly today, how this reality has had an impact on Mr. Mikijuk.” [Emphasis original] [ 73 ] As directed by the Supreme Court of Canada in Gladue and Ipeelee, the first step in sentencing an aboriginal person is to look at systemic and background factors that may bear on the culpability of the offender to the extent that they shed light on his or her level of moral blameworthiness. [ 74 ] The pre-sentence report indicates that in many ways Mr.

Ookowt had a better upbringing than many young Inuit who have appeared before me over the years. At page one, paragraph five, the report says Mr. Ookowt was raised in a good family home structure

and had participated in traditional hunting with his father from an early age. He continues to practice a hunting lifestyle. He is a skilledhunter and provides food to his family and other elders in the community. He also generates money from the sale of furs. In fact, he leftGrade 11 or 12 to pursue this lifestyle and has been very helpful to his family and the community. [75] Unfortunately, alcohol abuse mentioned by Bychok J. at paragraph 19 of Mikijuk was also present in this family. The accused’sfather appears to have abused alcohol and, not surprisingly, the accused also developed the same problem.

He started by drinkingalcohol from the glasses of people who had passed out at parties. It then accelerated when he tried to deal with the painful feelingscaused when his best friend committed suicide. Alcohol abuse was a major factor in this shooting. The accused had three 40-ouncebottles of vodka when he started the drinking bout that led to the shooting. He started drinking on the morning of the day of the shootingand continued drinking all day with a friend.

The fight with Arnold, coupled with the prior bullying and the accused’s level ofintoxication, tripped the switch in his brain that he had to send a message to Arnold by firing the shot. [76] I must take these circumstances into account to ensure that the sentence must be proportionate to the gravity of the offence and thedegree of responsibility of this offender. [77] These principles are also to be applied to the more serious crimes that require a denunciatory sentence.

The Supreme Court statedat paragraph 84 of Ipeelee: “The second and perhaps most significant issue in the post-Gladue jurisprudence is the irregular and uncertain application of the Gladueprinciples to sentencing decisions for serious or violent offences. As Professor Roach has indicated, ‘appellate courts have attendeddisproportionately to just a few paragraphs in these two Supreme Court judgments — paragraphs that discuss the relevance of Gladue inserious cases and compare the sentencing of Aboriginal and non-Aboriginal offenders.’ (K.

Roach, “One Step Forward, Two Steps Back:Gladue at Ten and in the Courts of Appeal” (2009), 54 Crim.

L.Q. 470, at p. 472).” [78] The Gladue passage that received this unwarranted emphasis is the observation that: “[g]enerally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment foraboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing.”(Gladue at para 79; see also R v Wells, 2000 SCC 10 at paras 42-44, [2000] 1 SCR 207) [79] Numerous courts have erroneously interpreted this generalization as an indication that the Gladue principles do not apply to seriousoffences (see, e.g.

R v Carrière (2002), (ONCA), 164 CCC (3d) 569 (Ont CA)). [80] I am satisfied that the accused is a good candidate for rehabilitation and can build on the work he has started at the BaffinCorrectional Centre. While incarcerated, he has taken courses on substance abuse and healthy relations. I can take into account theseGladue factors to temper the usual deterrent sentence for this type of crime.

Under all the circumstances of this crime and this accused, Iam satisfied that a sentence of two years less a day would be the appropriate one. [81] It follows that the application of the MMP in this case will result in a sentence that is double the appropriate sentence. As a result,I am satisfied that it would result in a grossly disproportionate sentence and I find that

section 12 of the Charter is breached in this case. VI. CONCLUSION [82] I will, therefore, impose the appropriate sentence of two years less one day. [83] The Crown agrees that the sentences for dangerous driving and evading police should be served concurrently. I sentence Mr.Ookowt to three months concurrent on the dangerous driving and one month concurrent for evading police.

[ 84 ] I have calculated the credit at the rate of 1.5 days for each day of pre-sentence custody, resulting in a total credit of 675 days.

According to my calculations, that leaves another 54 days in custody, but I will leave that up to the prison authorities to figure out. [ 85 ] In addition, I am going to place the accused on probation for a period of 12 months on the following conditions: • To report to probation services in Baker Lake within three days of his discharge from imprisonment and thereafter as required by probation; • To carry out 50 hours of community service; • To abstain absolutely from the consumption of alcohol; • To take counselling as recommended by the probation officer for alcohol abuse; [ 86 ] I impose a 10-year weapons prohibition and I will recommend an exemption under

section 113 of the Criminal Code . [ 87 ] I impose a Victim Fine Surcharge of $400 and I will give the accused two years to pay for it. [ 88 ] I will make a DNA order. [ 89 ] Finally, I order that the weapon seized be forfeited to the Crown. [ 90 ] Mr. Ookowt, I have sentenced you to a term in Nunavut. You are very, very fortunate that you are not going to a penitentiary. [ 91 ] What you did was very, very serious. You almost killed someone. I want you to remember that for the rest of your life. [ 92 ] I know you are a very good hunter.

I know you are good with weapons, but I want you to understand the dangers of mixing alcohol and weapons. Unfortunately in Nunavut we have many cases where young people like you drink and then use weapons and cause harm to the community. I have had many cases where young men have fired at the police houses and there have been response teams that held the whole town in agony for periods of time. So you make sure in the future to be very careful about mixing alcohol and weapons. [ 93 ] I hope you continue to work on your rehabilitation.

I think it is very important for you to stay away from alcohol, but I cannot force you to do that. Alcohol got you into this offence — remember that and continue to work on your rehabilitation. I hope that you can put this behind you, remember this in the future and not come back to court. [ 94 ] I thank counsel for their thorough work and arguments in this case. Dated at the City of Iqaluit this 22nd day of September, 2017 ___________________ Justice E. Johnson

Nunavut Court of Justice