R. v. Irkootee, 2018 NUCJ 32

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Irkootee, 2018 NUCJ 32 Date: 20161106 Docket: 18-16-141 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Sigurdson Irkootee ________________________________________________________________________ Before: The Honourable Mr. Justice Earl Johnson Counsel (Crown): Philippe Plourde Counsel (Accused): Alison Crowe Location Heard: Iqaluit, Nunavut Date Heard: July 20, 2018 Matters: Application to have Section 99 (2) Criminal Code , RSC 1985, c C-46, declared of no force of effect for Mr. Irkootee.

The application is granted. REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

Table of Contents I. INTRODUCTION .. 3 II. ISSUES . 4 III. LAW ... 4 IV. ARGUMENTS . 6 A. Applicant 6 B. Crown . 7 V. ANALYSIS . 13 A. Stage 1 Particularized Analysis . 13 i. Gravity of the Offence . 13 ii. Circumstances of the offender and the offence . 14 iii. Actual effect of the sentence on the applicant 14 iv. Penological purpose of the mandatory minimum sentence . 15 v. Existence of valid alternatives to the punishment imposed . 16 vi. Sentencing for other crimes in the same jurisdiction . 17 B. The MMP requires the imposition of a sentence that is Grossly Disproportionate . 18 C.

Stage 2 – Reasonable Hypothetical 18 VI. CONCLUSION .. 19 I. INTRODUCTION [ 1 ] The accused, Mr. Sigurdson Irkootee, entered a guilty plea to one count of trafficking in a firearm between June 1 and June 29, 2016, contrary to s. 99 of the Criminal Code , RSC 1985, c C-46 [ Criminal Code ]. [ 2 ] The facts are admitted by the accused and agreed to by the Crown. [ 3 ] Mr. Irkootee had been drinking while out on the land outside Rankin Inlet when he broke into a cabin owned by Noah Makayak and stole a Savage 25-06 rifle.

When he sobered up, the accused realized what he had done and wanted to get the rifle out of his house because of the danger to his children. The accused sold the rifle to Kastin Simik who did not have a firearms licence. The firearm was recovered undamaged and was not used to commit any other crimes.

[ 4 ] Section 99(2) carries a mandatory minimum punishment (MMP) of three years. The accused filed an Application seeking a declaration that the

section is of no force and effect pursuant to s. 52 Canada Act 1982 (UK), 1982, c 11 [ Constitution Act 1982 ]. The applicant claims that the three year MMP is cruel or unusual punishment contrary to s. 12 of the 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 [ Charter ]. [ 5 ] The applicant admitted to the following previous convictions: Date Offence Sentence a) 2010/09/16 s. 264.1 Criminal Code two years’ probation b) 2010/09/16 s. 87(2) Criminal Code two years’ probation c) 2012/10/01 s. 266 Criminal Code nine months’ probation d) 2014/05/05 s. 66 Motor Vehicles fine of $115.00 Act , RSNWT 1988 (Nu), c M-16 e) 2015/01/19 s. 733.1(1) Criminal ten days custody Code nine months’ probation f) 2015/03/14 s. 145(3) Criminal ten days custody Code nine months’ probation II.

ISSUES [ 6 ] The issues before the Court on this application are: 1. Is the three year MMP in s. 99(2) a violation of s.12 of the Charter that is unable to be demonstrably justified in a free and democratic society? and, 2. What is the fit and just sentence for this offender? III. LAW

Criminal Code

section 99 [7] Mr. Irkootee is charged under s. 99(2) of the Criminal Code: 99

(1) Every person commits an offence who (

a) manufactures or transfers, whether or not for consideration, or (

b) offers to do anything referred to in paragraph (

a) in respect of … a non-restricted firearm … knowing that the person is not authorized to do so under the Firearms Act or any other Act of Parliamentor any regulations made under any Act of Parliament.

(2) Every person who commits an offence under subsection (1) when the object in question is a prohibited firearm … is guilty of anindictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for aterm of (

a) in the case of a first offence, three years…. [8]

Section 99 was previously declared unconstitutional by the Alberta Queen’s Bench and the Ontario Court of Justice in R vFriesen, 2015 ABQB 717 [Friesen] and R v Shobway, 2015 ONCJ 457, 124 WCB (2d) 230 [Shobway] amongst other courts. Constitution [9] Charter s. 12 states, “everyone has the right not to be subjected to any cruel and unusual treatment or punishment.” [10] The Supreme Court of Canada clarified s. 12 in R v Nur, 2015 SCC 15, [2015] 1 SCR 773.

The Court held that in order for aviolation of s. 12 to be found (at para 46): …the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles ofsentencing in the Criminal Code. Then, the court must ask whether the mandatory minimum requires the judge to impose a sentence thatis grossly disproportionate to the fit and proportionate sentence.

If the answer is yes, the mandatory minimum provision is inconsistentwith s. 12 and will fall unless justified under s. 1 of the Charter. [11] The contextual factors used to assess what is grossly disproportionate are from R v Smith, (SCC), [1987] 1 SCR1045 , 40 DLR (4th) 435 [Smith], and R v Goltz, (SCC), [1991] 3 SCR 485 , [1991] SCJ No 90 (QL)[Goltz], R v Morrisey, 2000 SCC 39 paras 27 to 28, [2000] 2 SCR 90 [Morrisey]. No one factor is paramount.

The factors are: a. gravity of the offence, b. the personal characteristics of the offender, c. the actual effect of the punishment on the individual, d. the penological goals and sentencing principles upon which the sentence is fashioned, and e. the existence of valid alternatives to the punishment imposed. [12] Charter s. 1 requires the government to justify a Charter rights infringement as being fair in a free and democratic society. [13]

Section 52 of the Constitution Act 1982 provides “any law that is inconsistent with the provisions of the Constitution is, to theextent of the inconsistency, of no force or effect.” IV. ARGUMENTS

A. Applicant [14] The applicant argues that the three year minimum sentence set out in s. 99(2) of the Criminal Code for a first offence isdisproportionate to the seriousness of the conduct of the applicant in this case and leaves no latitude for the sentencing court to considermitigating circumstances and sentencing alternatives. [15] The applicant submits that s. (99)(2) offends the guarantee against cruel and unusual punishment set out s. 12 of the Charter andshould be declared of no force and effect with respect to this matter.

The applicant seeks to be sentenced according to the sentencingcriteria set out in s. 718 of the Criminal Code and related provisions. [16] The applicant cites Friesen for the proposition that s. 99(2) is a violation of Charter s. 12. Mr.

Friesen’s crimes were failing toobtain the appropriate business licence to transfer or sell firearms from his business, and being reckless as to whether the deceasedpossessed the appropriate licence to acquire or possess a firearm. [17] The applicant submitted that the facts of the case at bar are more analogous to those in Friesen than the facts in R v Lewis, 2012ONCJ 450 [Lewis]. In Lewis, an undercover police officer – posing as a drug trafficker – contacted Mr. Lewis, who was a drug trafficker.Mr.

Lewis then supplied the undercover police officer with significant amounts of cocaine, knowing that the buyer was making thepurchases for the purpose of resale. The transactions between the undercover police officer and Mr. Lewis happened over a number ofdays and Mr. Lewis was motivated for further and larger sales of cocaine to the undercover police officer. The two talked about theirillegal business relationship and the undercover police officer raised some security issues with Mr. Lewis. Mr.

Lewis then told the policeofficer that he could get him a “four fifths”, meaning a .45 caliber handgun. [18] Although the handgun in Lewis was never delivered, the issue was that the accused was already in the illegal drug business andoffered to supply another person in the illegal drug business with a firearm, for the purpose of protection.

The applicant submits thatthese facts fit exactly within the issues articulated in support of the Criminal Code amendments to s. 99: organized crime, drugs andguns. [19] The applicant submits that the three year mandatory minimum sentence is grossly disproportionate to the facts at bar and Mr.Irkootee’s circumstances and history. The applicant argued that the court must also consider the application of s. 718.2(

e) because he isInuk. [20] The applicant argues that Mr. Friesen’s sentence of a six-month conditional sentence order is appropriate in this case. In Friesen,Ouellette J. considered what the appropriate sentence should be after applying the usual sentencing principles and imposed a six-monthconditional sentence. He based the sentence on Mr. Friesen’s lack of criminal record, guilty plea, community support and the fact thathis crime was essentially a failure to comply with licensing requirements. [21] The applicant acknowledges that the facts in this case are more serious than in Friesen.

However, he submits that they are notsufficiently serious to warrant a mandatory three year sentence. Such a sentence would be inconsistent with the circumstances of theoffence and the offender as well as the decisions of this Court in R v Nattar, (NUCJ), R.v Attutuvaa, 2013 NUCJ 10,295 CCC (3d) 262, and R v Alariaq, 2017 NUCJ 13 . [22] The applicant submitted a one year conditional sentence would be appropriate under all the circumstances. B. Crown [23] The Crown submitted that the imposition of a mandatory three year imprisonment sentence, on these facts with the aggravating and

mitigating factors and due consideration of R v Gladue, (SCC), [1999] 1 SCR 688, [1999] 1 SCR 688 [Gladue], and Rv Ipeelee, 2012 SCC 13 , [2012] 1 SCR 433, [2012] 1 SCR 433 [Ipeelee], is not grossly disproportionate within the meaning ofCharter s. 12. [24] The Crown submits that s. 99 is part of a broader sentencing regime including minimum imprisonment terms for a number offirearm offences. As a manifestation of Parliament’s policy with respect to firearm offences, the Crown argues that the applicable regimeis entitled to deference under s. 12 of the Charter.

The MMP’s are a “forceful expression of governmental policy in the area of criminallaw” (R v Nasogaluak, 2010 SCC 6 at para 45, [2010] 1 SCR 206). [25] The Crown argued that according to para 14 of R v Ferguson, 2008 SCC 6, [2008] 1 SCR 96 [Ferguson], and para 24 of R v Lloyd,2016 SCC 13, [2016] 1 SCR 130 [Lloyd], the phrase “cruel and unusual punishment” is meant to guard against punishments consideredto be “abhorrent or intolerable”.

The Crown argued that three years is neither abhorrent nor intolerable. [26] The Crown made submissions on the two part test from Nur and the factors from Smith, Morrisey, and Goltz. A. Stage 1 – Particularized Analysis i. Gravity of the Offence [27] The Crown pointed the Court to para 36 of Morrisey, arguing that a court must “attribute greater moral blameworthiness to thosewho knowingly break the law than those who do so unintentionally”. [28] The Crown argued that the requirement of this specific intent as part of the mens rea enhances the applicant’s moralblameworthiness.

The Crown argued that the wording of s. 99 ensures that the provision is narrow enough in scope to capture onlycircumstances where there is substantial moral culpability. It is not a provision that captures conduct that falls short of true criminalconduct. [29] The Crown submits that, regardless of the conduct involved, the objective gravity is clearly based on the fact that untraceablefirearms are sought after by people with ill intentions. Even if the applicant’s buyer was an honest citizen with no ill intent, this firearmcould have ended up in the hands of someone who would have used it for unlawful purposes.

The objective or purpose of this offence isto limit the availability of untraceable firearms. [30] The Crown argues that the prevalence of firearm offences in a jurisdiction has to be taken into consideration. This is particularlytrue in Nunavut where firearms are widespread and where firearm offences are unfortunately happening weekly.

The Crown cited para40 of R v Anugaa, 2018 NUCJ 2 , for the proposition that public concerns in a Territory with the highest suicide rate in Canadamandates that selling firearms to a random person on the street has to be considered serious. [31] As a result, the Crown argues that the gravity of the s. 99 offence must weigh heavily in the assessment. ii.

Circumstances of the offender and the offence [32] The Crown relies on para 20 of R v McMillan, 2016 MBCA 12, 326 Mn R (2d) 56 [McMillan], to argue that denunciation anddeterrence are the paramount principles that should be applied in cases of firearm-related offences with less emphasis on the personalfactors of the applicant. [33] The Crown agrees that qualitatively the conduct of the applicant was at the lower end of the spectrum of behaviour encompassedin s. 99, but that the applicant committed an offence with a high degree of moral blameworthiness.

[ 34 ] The Crown acknowledges that the applicant is entitled to sentencing consideration pursuant to the framework established in Gladue , Ipeelee and s. 718.2(

e) of the Criminal Code . [ 35 ] The Crown puts forward the following aggravating factors: (

a) The applicant obtained the firearm that he trafficked by stealing it from a cabin when he was intoxicated and entered the cabin without legal justification. (

b) The applicant has a criminal record with a prior firearm offence under s. 87(2). (

c) The prevalence of firearm related offences in Nunavut makes the trafficking of firearms a very serious offence. [ 36 ] The mitigating factor is the early guilty plea. iii. Actual effect of the sentence on the applicant [ 37 ] The Crown noted that at p. 513 to 514 of Goltz and para 41 of Morrisey , the effect of the sentence is not limited to a consideration of the quantum and duration of the jail term imposed on the offender.

It will also include the nature and conditions under which the sentence will be served. [ 38 ] The Crown acknowledges that a three year term of custody in a penitentiary is a very serious sentence. However, the Crown cites Morrisey para 42 for the proposition that serious sentence does not, in and of itself, make the sentence cruel and unusual. The imposition of a MMP does not exclude the typical sentence reductions, such as those contemplated by parole eligibility and deduction of pre-trial custody.

These factors mitigate against the harshness of such a sentence. [ 39 ] The Crown acknowledges that the three year imprisonment of the applicant in a penitentiary outside Nunavut will have an impact on the applicant. iv.

Penological purpose of the mandatory minimum sentence [ 40 ] The Crown noted that at para 43 of Morrisey , a sentencing court must analyze penological factors “to determine whether Parliament was responding to a pressing problem, and whether its response is founded on recognized sentencing principles.” [ 41 ] The Crown argued, citing McMillan , that Parliament’s intention was to give priority to denunciation and deterrence. The Crown submits that the existence of the MMP in s. 99(2) was Parliament’s response to pressing and substantial concerns regarding the increase in firearm violence in Canada.

Additionally, crimes involving firearms are treated with severity in the Criminal Code , i.e., the MMPs on ss. 239, 271, and 273. [ 42 ] The Crown also argued that at paras 76 to 77 of R v Latimer , 2001 SCC 1 , [2001] 1 SCR 3 , the Supreme Court stated that parliament is entitled to make policy choices on the weight to be attached to various sentencing objectives.

At para 46 of Morrisey , the Supreme Court noted that Parliament is not compelled to enact sentencing provisions which, “simultaneously pursue all the traditional sentencing principles.” The weight attached to various sentencing principles may vary according to the context. [ 43 ] The Crown relies on the recent comments of Bychok J. at para 48 of R v Mikijuk , 2017 NUCJ 2 [ Mikijuk ] that “firearm related crime is far too prevalent in Nunavut.” Trafficking a firearm is not responsible firearm use.

There are also similar comments at para 20 of R v Lyta , 2013 NUCA 10 [ Lyta ] . [ 44 ] Furthermore, the Crown disagrees with the argument advanced at para 14 of the applicant’s factum, that the MMP exclusively addressed organized crime, handguns, drug traffickers and gangs. The objective of the legislation was much wider as can be seen in the

later enactment of the Ending the Long-gun Registry Act , 2012 c 6 s. 11 [ ELRA ]. The Crown argues, because the ELRA ended the obligation to register long-guns, sellers now have an obligation to verify that the buyer has a valid licence. In the absence of the regulations from the long-gun registry, the rules regarding transfer of firearms are even more crucial and make the violation of those rules serious offences. v. Existence of valid alternatives to the punishment imposed [ 45 ] The Crown submits that a custodial sentence is necessary in this case.

The Crown stated that it would seek a sentence of between eighteen months and two years less a day. [ 46 ] The Crown also pointed out that the MMP is not the only bar preventing the imposition of a conditional sentence as it would be unavailable because of Criminal Code s. 742.1(e)(iii). vi. Sentencing for other crimes in the same jurisdiction [ 47 ] The Crown acknowledges the lack of comparable cases in Nunavut for this offence. However, para 48 of Mikijuk and para 20 of Lyta emphasize that the high rate of firearm crimes in Nunavut requires the imposition of deterrent and exemplary sentences.

At para 17 of Shobway , the Court estimated the range to be between one and seven years custody. [ 48 ] Taking all these factors into account, the Crown submits that it cannot be said that a three year minimum sentence is grossly disproportionate in the circumstances of this offence. It is a high sentence that is harsh on the applicant, however, it is not so abhorrent or intolerable as to reach the threshold of gross disproportionality. B.

Stage 2 – Reasonable Hypothetical [ 49 ] Relying on p. 515 to 516 of Goltz , the Crown argues that the applicant has the burden of identifying reasonable hypothetical scenarios in which the impugned law would give rise to a punishment that is not just harsh and excessive, but also so grossly disproportionate that it warrants the extreme remedy of striking down the law. The applicant did not advance a reasonable hypothetical but adopted the same one advanced in Friesen . [ 50 ] In Friesen , Ouelette J. adopted the hypothetical advanced in Shobway .

The reasonable hypothetical was a veteran coming back home with weapons as spoils of war or souvenirs and then transferring them to family members upon death. The Crown argued that both judgments seem to ignore the specific rules of the Firearms Act , SC 1995, c 39 [ Firearms Act ] such as s. 12(7) regarding grandfathering provisions allowing such firearms to be lawfully transferred.

As result the reasonable hypothetical in both cases is unfounded. [ 51 ] The Crown argues that the applicant’s moral blameworthiness of a charge of trafficking a firearm is higher than possession of an unauthorized weapon dealt with in Nur . The reason for the higher level of blameworthiness is because trafficking must be done knowing that the person cannot transfer the firearm, whereas possession does not require such a high level of knowledge.

The offence in Nur could be satisfied by a member of a criminal organization possessing a prohibited weapon for nefarious purposes or by someone who made a mistake about storage requirements. By contrast, the Crown contends that the offence in the case at bar is made out only where the offender intends to traffic the firearm knowing that he cannot do it.

This represents that Parliament has taken steps to ensure that people who mistakenly sell a firearm without knowing that it is illegal are not criminalized. [ 52 ] Consequently, the Crown submits that the applicant has not provided any reasonable hypothetical sufficient to satisfy its burden to show that the MMP offends s. 12 [ 53 ] The Crown submits the application should be dismissed and the applicant sentenced to three years or 1080 days in jail. In addition, the Court should impose a lifetime firearm prohibition, Victim of Crime surcharge of $200 and order the forfeiture of the firearm. V. ANALYSIS

A. Stage 1 Particularized Analysis i. Gravity of the Offence [ 54 ] It is unfortunate that the facts in this case were not more nuanced. The applicant was intoxicated after a day out drinking on the land in June 2016. He gave no explanation for breaking into the cabin and stealing the rifle. It was an impulsive irrational decision, from a mind that was addled by alcohol, which the applicant regretted the next day. [ 55 ] When the applicant awoke the next day he realized what he had done, so he decided to dispose of the weapon. He sold the weapon to Kastin Simik who did not have a firearms licence.

The extent of the applicant’s knowledge that Smith did not have a firearms licence is unclear from the agreed facts. However, he knew he had stolen the rifle and it was illegally in his possession. It appears he was not motivated by profit and was concerned for the safety of his six children who were between two and nine years old. [ 56 ] The rifle was recovered and was not used in the commission of any crimes. [ 57 ] The Court does not agree with the Crown and Defence submissions that the applicant’s conduct should attract a higher level of moral blameworthiness than in Friesen .

The offender in Friesen was charged with selling a non-restricted firearm, from a bricks-and- mortar establishment, without a licence to sell firearms. Mr. Friesen sold a firearm to a man – he knew to be suicidal – who did not have a firearm’s licence. This differs greatly from the behaviour of Mr. Irkootee. Mr. Irkootee’s moral blameworthiness is lower because he was merely removing the firearm from his home for the safety of his children, rather than running a business selling firearms. Also, Mr. Irkootee sold his firearm to a person who was apparently going to use the rifle for hunting, whereas, Mr.

Friesen sold the firearm to a person that he knew to be suicidal. [ 58 ] There is spectrum of conduct for this type of offence. The high end of the range would be the sale of illegal weapons by organized crime, drug traffickers and gangs. As acknowledged by the Crown, the applicant’s actions would fall on the low end of the range. [ 59 ] There is no doubt that this Court must take into account the prevalence of firearm offences in Nunavut. However, this type of offence is not the type that typically appears before this Court.

The facts in Lewis appear to be much closer to the type of conduct that s. 99 was intended to catch. Additionally, firearms are prevalent in virtually every community in Nunavut because they are used on the land for the purpose of hunting. ii. Circumstances of the offender and the offence [ 60 ] While acknowledging that the applicant’s conduct was at the low end of the range, the Crown emphasized that this Court must give greater weight to the principles of denunciation and deterrence. However, unlike the Courts in Friesen and Lewis , this Court must also consider the application of Gladue, Ipeelee and s. 718.2(

e) of the Criminal Code . It is possible to address both deterrence and rehabilitation by imposing a conditional sentence for a firearm offence, as Ouellette J. did in Friesen . [ 61 ] The main difference between Friesen and the case at bar is that the applicant stole the firearm and has a prior criminal conviction for pointing a firearm. The prior conviction is very dated and the applicant was sentenced to two years’ probation. [ 62 ] The theft of the rifle was the impulsive act of an intoxicated person.

He made a mistake in judgment in not notifying the police once he sobered up and realized that he had a problem with possession of the rifle. However, to his credit he entered an early guilty plea, was very cooperative with the police, no harm was caused by the firearm and the firearm was recovered quickly. iii. Actual effect of the sentence on the applicant [ 63 ] The Crown acknowledges that the MMP will have an impact on the applicant. I am satisfied that the three year sentence will have a much greater impact than suggested by the Crown.

His only prior period of incarceration occurred in March 2015 when he was sentenced to ten days in jail for a breach of an undertaking.

[ 64 ] Mr. Irkootee has six young children and he will be away in the south for a long time. Because of the high cost of transportation in the north, his family will likely only be able to visit him a few times, if at all. Day parole will not be of any assistance and the applicant will only eligible for full parole after he has served one year in the a penitentiary. iv. Penological purpose of the mandatory minimum sentence [ 65 ] The Crown advanced a forceful argument that the objective of the s. 99 (2) MMP was to address the substantial public concerns regarding the increase in firearm violence in Canada.

The Crown disagreed with the statements of Ouellette J. in Friesen , adopted by the applicant, that the MMP addressed exclusively organized crime, handguns, drug traffickers and gangs. It was submitted that the objective of the legislation was much broader because Parliament subsequently passed the ELRA . [ 66 ] The Court adopts Ouellette J’s analysis based on parts of Hansard where the Minister of Justice set forth the objective of the legislation.

I repeat the Minister’s comments from para 21 of Friesen : These penalties directly target the supply of handguns and restricted weapons to the criminals on our streets. They are a proportionate and necessary measure to the handgun problem we face, and they target the business of illegally supplying firearms. [ 67 ] I interpret the Minister’s remarks in the same way as Ouellette J. that s. 99 was directed at organized crime, handguns, drug dealers and gangs. There may have been other objects as suggested by the Crown, but there is no additional evidence before about what they were.

One of the problems with an MMP is that the usual sentencing discretion conferred on judges is removed so that no exceptions can be crafted for situations such as this one where an Indigenous person in a remote northern community selling a rifle is treated the same as a gang member or organized crime member running an organized business in trafficking in handguns in a City. v. Existence of valid alternatives to the punishment imposed [ 68 ] In my view, a one year conditional sentence would satisfy the sentencing objectives of deterrence and rehabilitation.

Unfortunately a conditional sentence is not available because the Crown proceeded by indictment. In the absence of a conditional sentence, I accept a short period of custody is necessary. [ 69 ] Without the MMP, the Crown would seek a sentence of eighteen-months to two years-less-a-day. The sentence range may have been shared to demonstrate that a MMP of three years is merely disproportionate, as opposed to grossly disproportionate. If the MMP did not exist, then a judge would be free to hear submissions from both parties, consider Gladue principles, then design a fit and appropriate sentence.

Consequently, submissions on what the Crown’s position might have been if the MMP did not exist are neither here nor there when it comes to an analysis of whether the MMP is grossly disproportionate with regards to Mr. Irkootee. [ 70 ] Gladue and Ipeelee require that deterrence and denunciation be accomplished through restorative sentencing practices. Mr. Irkootee is Inuk and is entitled to considerations of Gladue and Ipeelee factors. [ 71 ] The applicant was born March 19, 1988, at Rankin Inlet. His mother died when he was 4 years old and his father died in 2016 at the age of 56.

His childhood was difficult and affected by alcohol and violence. He left school at the age of 13. [ 72 ] Because a short period of incarceration is necessary to meet the principles of deterrence and denunciation, a sentence in the range of six-to-twelve months would be appropriate. A sentence of six months would be an appropriate sentence because it would balance Mr. Irkootee’s Gladue rights with the principles of denunciation and deterrence. [ 73 ] In Friesen , the offender received a six month conditional sentence for charges that are morally more serious than those of Mr. Irkootee. Additionally, Mr.

Irkootee is entitled to be sentenced in a manner consistent with Criminal Code s. 718.2(e). For these reasons, a sentence of six months would be most appropriate.

vi. Sentencing for other crimes in the same jurisdiction [74] There are no prior cases in the three territories where a person was sentenced for this offence. As noted in Shobway, the range insouthern Canada is between one and seven years in jail, however, many of the cases surveyed in Shobway had multiple charges. InShobway, Radley-Walters J. thought a range of twelve-to-eighteen months would be appropriate after taking into account the Gladuefactors. Shobway was an Indigenous first time offender and was the father of two children who were in the custody of the mother.

Hewas exercising regular access and sold two weapons to pay for a drug debt. The weapons were recovered and no crimes were committedwith them. Mr. Shobway entered an early guilty plea and was co-operative with the police. [75] The low end of the scale was the six month conditional sentence imposed by Ouellette J. in Friesen and those facts are clearlymore serious than in the case at bar. The facts in Lewis were far more serious than in this case and he was sentenced to one year. I amsatisfied that a sentence of six months in jail would be the appropriate sentence for the applicant. [76] Although Mr.

Shobway was a first-time offender, the offence was more serious because he knew he was selling to a known drugdealer to pay for debts he incurred to buy drugs. In the case at bar, the applicant has an old pointing a weapon offence and assaultconviction, two breach charges and sold the weapon to a person who appears to have wanted to use the weapon for hunting. [77] There is no question that this Court has frequently commented on the need for deterrent sentences for firearm offences.

This courthas established a range of four to seven years where firearms are discharged as seen in R.v Utye, 2013 NUCJ 14 , Lyta, R vGeetah, 2015 NUCJ 10 and Mikijuk. The facts in this case are of an entirely different type than the firearms offences thatfrequently occur in Nunavut. I agree with Ouellette J., the transfer of what would otherwise be a non-restricted firearm must be treateddifferently from the transfer of a restricted or prohibited firearm. B. The MMP requires the imposition of a sentence that is Grossly Disproportionate [78] The MMP requires that Mr.

Irkootee serve a sentence six times that of an appropriate sentence merely for selling a rifle to anapparent hunter, with no harm flowing from this act. [79] As discussed above, Mr. Irkootee would be forced to serve his sentence far from his young family, and he would be sentenced in amanner that is not responsive to his rights as Inuk to be sentenced in accordance with Gladue and Ipeelee. [80] I am satisfied that imposing a sentence that is six times the appropriate sentence is grossly disproportionate and would offendsocietal norms. C.

Stage 2 – Reasonable Hypothetical [81] If I am wrong, and the sentence is merely disproportionate and not grossly disproportionate, then the reasonable hypothetical’s setout in Friesen and Shobway render s. 99(2) unconstitutional pursuant to s. 52 Canada Act. [82] The Crown makes the argument that the Firearms Act has provisions like s. 12(7) which negate the reasonable hypothetical reliedupon by the Courts in Shobway and Friesen. However, s. 12(7) only applies to weapons manufactured before 1946.

There have beenmany conflicts since World War II, such as Korea, Vietnam, Afghanistan, Iraq and more that would result in possible guns-as-heirloomsscenarios. Therefore, the reasonable hypothetical put forward in Shobway and Friesen are valid and are valid in this case as well. [83] The

section would catch individuals receiving firearms as part of an inheritance, if the individual receiving the firearms did nothave the appropriate licensing requirements to possess or acquire the firearms. Ouellette J. opined that Parliament did not intend to catchthat type of situation in enacting s. 99. Rather, the legislation was an effort to remove handguns and serious prohibited and restricted

firearms off the street and out of the hands of serious criminals. VI. CONCLUSION [ 84 ] I am satisfied that the three year MMP that I am required to impose in this case is so disproportionate as to outrage standards of decency of Nunavummiut. It would be abhorrent and intolerable to them and grossly disproportionate to the sentence that I would have imposed after the application of the usual sentencing principles.

As a result, s. (99)(2) offends the guarantee against cruel and unusual punishment set out in s. 12 of the Charter . [ 85 ] In R v Itulluriq , 2018 NUCJ 31 , the Crown conceded that a grossly disproportionate sentence cannot be saved by a s. 1, the Crown has also made this concession in this case. [ 86 ] I accordingly declare s. 99 of no force and effect pursuant to s. 52 of the Constitution Act with respect to this case. [ 87 ] I sentence the applicant to a term of imprisonment of six months. [ 88 ] I also make a mandatory firearm prohibition for life and I will recommend an exemption under s. 113 of the Criminal Code . [ 89 ] I order that the rifle seized be forfeited to the Crown. [ 90 ] I order that the applicant pay a Victim of Crime surcharge in the amount of $200 and give him one year after his release from jail to pay the surcharge.

Dated at the City of Iqaluit this 6th day of November, 2018 ___________________ Justice E. Johnson Nunavut Court of Justice