R v Itturiligaq, 2020 NUCA 6

Nunavut Court of Appeal Citation: R v Itturiligaq, 2020 NUCA 6 Date: 20200605 Docket: 09-18-13-CAP Registry: Iqaluit Between: Her Majesty the Queen Appellant - and - Simeonie Itturiligaq Respondent - and - Aboriginal Legal Services Intervenor _______________________________________________________ The Court: The Honourable Madam Justice Karan Shaner The Honourable M adam Justice Frederica Schutz The Honourable Madam Justice Sheila Greckol _______________________________________________________ Reasons for Judgment Reserved of The Honourable Madam Justice Schutz Concurred in by The Honourable Madam Justice Shaner Concurred in by The Honourable Madam Justice Greckol

Appeal from the Decision by The Honourable Justice P. Bychok Dated the 11th day of October 2018 _______________________________________________________ Reasons for Judgment Reserved of The Honourable Madam Justice Frederica Schutz _______________________________________________________ I. Introduction [ 1 ] In early January 2018, Mr. Itturiligaq, a 24-year-old Inuit man and traditional hunter for country food, who had lived his entire life in Nunavut, intentionally fired his hunting rifle at the roofline of a house he knew to be occupied. The single bullet exited the roof and caused no injuries. He was charged with intentionally discharging a firearm at a place, contrary to s 244.2(1)(

a) of the Criminal Code . [ 2 ] Mr. Itturiligaq, who had no criminal record, entered an early guilty plea. Under s 244.2(3)(b), on conviction he was liable to a mandatory minimum punishment of imprisonment of four years. He successfully challenged the constitutionality of the mandatory minimum punishment on the basis that it violated s 12 of the Canadian Charter of Rights and Freedoms ,

Part 1 of The Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [ Charter ]: R v Itturiligaq , 2018 NUCJ 31 (the “Decision”). [ 3 ] The sentencing judge having declared s 244.2(3)(

b) to be unconstitutional and of no force and effect, sentenced Mr. Itturiligaq to a custodial sentence of slightly less than two years, followed by two years probation. After credit for pre-trial remand, he was committed to serve 303 days at the territorial jail in Nunavut. [ 4 ] The Crown appeals the sentence imposed on Mr. Itturiligaq as demonstrably unfit, and the court’s declaration that s 244.2(3) (

b) is unconstitutional. [ 5 ] While not joined, this appeal was heard at the same time as the oral hearing in R v Ookowt , 2020 NUCA 5 [ Ookowt ], which also involved a declaration that s 244.2(3)(

b) was unconstitutional pursuant to s 12 of the Charter . [ 6 ] As stated in Ookowt , both of these appeals arose as a result of young men resorting to the use of hunting rifles in response to what they believed to be personal slights or problems in their personal lives. It is common for those who live in Nunavut’s communities to own rifles. They are used for subsistence hunting, supporting a traditional way of life. Sadly, this also means they are often readily accessible for unlawful and dangerous purposes such as intimidation, revenge, domestic violence and retaliation.

This unlawful and dangerous conduct must stop. [ 7 ] A lawful firearm in the hands of an angry or despairing individual is a homicide waiting to happen, as is captured in Parliament’s mandatory four-year minimum penalty under s 244.2. Discharging a loaded firearm at a residence, or any other place where another person may be present, does not resolve disputes. Rather, this conduct rips apart the safety and peace of communities and the families who live there, and is wholly antithetical to the social fabric of Canada, including the traditional values of Inuit culture.

When young Indigenous men must by law be separated for significant periods of time from their families, communities and land for committing such offences, everyone loses, possibly no one more than the offender. But it is a sentencing response that is not unwarranted or grossly disproportionate to the gravity of these offences or the moral blameworthiness of those who commit them. [ 8 ] For the reasons following and those provided in Ookowt , we allow the appeal. [ 9 ] In brief, we conclude that the sentence imposed on Mr.

Itturiligaq was a disproportionate, unfit sentence and that the mandatory minimum punishment of imprisonment of four years under s 244.2(3)(

b) is not a grossly disproportionate sentence for this offence and this offender. Having found the mandatory minimum punishment is not grossly disproportionate in the circumstances of this case, we decline to determine whether it is grossly disproportionate for a reasonably foreseeable hypothetical case, a question which was otherwise not considered by the sentencing judge in this matter. We allow the Crown’s appeal, and set aside the sentencing judge’s declaration of unconstitutionality. [ 10 ] However, as with Ookowt , given the passage of time from the date of Mr.

Itturiligaq’s sentence in October of 2018, and given that he is now finished the custodial portion of his sentence and is well into the term of his probation, we stay the service of the sentence

of imprisonment. II. Background Facts

a) The Offence [ 11 ] Mr. Itturiligaq entered an early guilty plea to one count that he: On or about the 08 day of January 2018, at or near the Hamlet of Kimmirut, in the Nunavut Territory did, intentionally discharge a firearm at a place to wit: house #207 in Kimmirut, knowing that or being reckless as to whether another person was present in the place contrary to s 244.2 of the Criminal Code of Canada . [ 12 ] The facts read in on the guilty plea and admitted, were that Mr. Itturiligaq’s girlfriend was visiting friends at house 207-D on the evening of January 8, 2018. Around 11:15 pm, a sober Mr.

Itturiligaq went to the house and repeatedly asked his girlfriend to go home with him. When she refused, he told her “he could get worse”; he then left on his skidoo and returned home (house 7A) where he retrieved a .243 calibre Remington rifle. Returning to house 207-D, Mr. Itturiligaq again asked his girlfriend to come home with him; again, she refused. Mr. Itturiligaq then went to his skidoo to retrieve the rifle, after which he fired a single shot at the front of house 207- D, which entered and exited the roof above the front door.

There were four people inside the house at the time the shot was fired; no one was injured. [ 13 ] Following the shot, Mr. Itturiligaq’s girlfriend immediately exited the house and walked towards Mr. Itturiligaq, whereupon he hit her in the leg with the butt of his rifle. She then got on the skidoo with him and they rode back home. [ 14 ] After receiving numerous calls about a shot fired, the Kimmirut RCMP attended house 7A in search of Mr. Itturiligaq. The rifle was located behind the water tank, unloaded and unsecured. Mr.

Itturiligaq was located inside a bedroom with his girlfriend and was arrested without incident. The search incident to arrest revealed two loaded rifle magazines in Mr. Itturiligaq’s coat pocket. He was transported to the Kimmirut RCMP detachment and lodged in cells. [ 15 ] On January 10, 2018, Mr. Itturiligaq was interviewed by the RCMP and took full responsibility for his actions.

He told police that on the day of the incident he had been upset that his girlfriend had not been spending enough time with him and their small daughter; he was angry that she had gone to her friend’s place without telling him and that she refused to leave with him. In his Pre-Sentence Report, he stated “he was ‘angry at my girlfriend as she was not listening and refusing to go home with him.[’]”. [ 16 ] Mr. Itturiligaq stated that he deliberately aimed the rifle at the top part of the house and fired.

He told police that he only took one shot and was not trying to aim the gun at anybody, as he knew that he is not supposed to do so. [ 17 ] The Crown was unable to confirm whether the rifle had been secured when initially retrieved by Mr. Itturiligaq. Mr. Itturiligaq’s girlfriend suffered no physical injury as a result of being struck with the rifle butt. At the time of completing the Pre- Sentence Report, when asked how the incident affected her, the complainant stated “I don’t know”. She maintained her support of Mr.

Itturiligaq, and stated that she had visited him numerous times in custody since the offence, and intended to resume residing with him (in her family home) upon his release. No Victim Impact Statement was filed.

b) The Offender [ 18 ] At the time of sentencing, Mr. Itturiligaq was a 24 year old Inuk male with no prior criminal record. Born in Iqaluit, his parents separated when he was 6 or 7 following which he lived with his mother in Hall Beach until 2009 when he moved in with his father and step-mother in Kimmirut; he has five siblings. Mr. Itturiligaq retained the support of his family, who expressed “shock” at his actions as being entirely out of character; he was described as a quiet person who stays at home and loves his young daughter, and who is not involved with drugs and rarely drinks alcohol.

Both his father and step-mother expressed concern about Mr. Itturiligaq’s relationship with his girlfriend; his stepmother stated “they bring out the worst in each other because they seem to have been fighting a lot... that if [they] are going to be together she does not think it’s a good idea.” While Mr. Itturiligaq stated that he had thoughts of suicide at one point in his life, this was only when he first became involved with his girlfriend and they had ups and downs in their relationship; he now maintains he is committed to providing for his young daughter. [ 19 ] Mr.

Itturiligaq had a traditional Inuit upbringing, and hunts and fishes for sustenance as taught by his father. He has a grade 12 education and a good history of wage employment; at the time of his arrest, he was a security guard at the local Health Centre in Kimmirut. While in custody pending sentencing, Mr. Itturiligaq completed four rehabilitative programs at Makigiarvik Corrections Centre in Iqaluit: Inside Out, Substance Abuse Program, Alternatives to Violence, and the Healthy Inuit Families Program.

He also participated successfully in the six-week Town Crew Program and the Inuit Cultural Skills Program (ICSP). Both his Town Crew and ICSP supervisors stated that he had no difficulties while in those programs, was a good worker, positive and got along well with his peers. [ 20 ] No formal Gladue report was prepared, but it is clear that some Gladue factors were relevant to Mr. Itturiligaq’s background. He and his family described that he had a good upbringing.

He maintained he had never experienced addiction, abuse, mental health issues, suicide in his family, homelessness or displacement, poverty, racism, or involvement with social services, but he had some difficulties completing his schooling in English which was not his first or dominant language. He had the support of both parents growing up despite their separation, however his mother was a heavy user of marijuana and he witnessed some domestic violence as a child by his mother’s brother. As there are often few employment opportunities in Kimmirut, Mr.

Itturiligaq had experienced difficulties with being unemployed at times and feared he may have further problems in this regard once released. There were also issues with lack of housing in the area, and at the time of the offence, he and his girlfriend were living in her family’s four-bedroom home with her parents and four siblings, having been on the waiting list for new housing for some time. Mr. Itturiligaq had no known history of

residential schooling in his family’s background; and he was in good physical health, save a hearing deficit and the need for hearing aids,a condition also shared by his father.

c) The Sentencing Decision [21] At the sentencing hearing, the Crown sought the imposition of the four year mandatory minimum under s 244.2(3)(

b) of theCriminal Code. While defence counsel agreed with the Crown that denunciation and deterrence were the paramount sentencingprinciples, and that the offence was grave, she submitted that the mandatory minimum should be struck down under s 12 of the Charterand that a penitentiary sentence of two years less credit, and 18 months probation was appropriate. [22] The sentencing judge found that R v Gladue, (SCC), [1999] 1 SCR 688, 171 DLR (4th) 385 [Gladue]provided guidance on how s 718.2(

e) of the Criminal Code was to be applied in the case of Indigenous offenders, and noted that “[j]ail inCanada is imposed as a last resort for all Canadians no matter their ethnic origins”: Decision at para 16. He found at paragraph 19 that: The Nunavut Court of Justice is a Gladue court. 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 lensthrough which we look at the circumstances of every case.

Gladue principles will be prominent in my analysis of the alleged Charterbreach of s. 12 in this case. . . . [Footnote omitted; emphasis in original] [23] The sentencing judge cited R v Nur, 2015 SCC 15, [2015] 1 SCR 773 [Nur], for the three-part test for constitutionality set bythe Supreme Court of Canada. Under the first part of the Nur test, he stated that the court is required to determine the proportionatesentence for the offence committed by Mr.

Itturiligaq having regard to the purpose and principles of sentencing in s 718 of the CriminalCode, and the fundamental principle of proportionality set out in s 718.1 that: “A sentence must be proportionate to the gravity of theoffence and the degree of responsibility of the offender”. [24] Under this first part of the test, the sentencing judge returned to Gladue, particularly in response to the Crown’s reliance on Rv Oud, 2016 BCCA 332, 339 CCC (3d) 379 [Oud] and the British Columbia Court of Appeal’s finding therein that it would be difficultto conceive of any offence under s 244.2 for which the mandatory minimum penalty of four years would be cruel and unusualpunishment.

He found at paragraphs 57-59 of the Decision: . . . With all due respect, the view from the vantage point of the Nunavut Justice Centre in Iqaluit is very different from that in downtownVancouver. Our immense country is a confederation and not a unitary state. No two parts of Canada are identical. Nunavummiut do not experiencethe terrifying gang-related gun violence which plagues Toronto. Our isolated and remote neighborhoods “are not war zones”. Still,firearm offences are far too prevalent in Nunavut. Nunavut forms a distinct society within Confederation. Over 86% of our population is Inuit.

Outside Iqaluit, the percentage of Inuit in ourhamlets rises to well over 90% of the population. This is why we say that the Nunavut Court of Justice is a Gladue court. [Footnotesomitted]. [25] The sentencing judge then reiterated his findings from earlier decisions; first, from R v Mikijuk, 2017 NUCJ 2, 2017 NUCA 5[Mikijuk], at paragraphs 21-23: In my lifetime, Inuit were forced off the land. Many were removed, sometimes forcibly, by alien authority into artificial and isolatedcommunities. Children were taken from the bosoms of their families and sent to far away residential schools.

One of the purposes ofthese schools was to supplant their culture and language. That painful legacy reverberates today. Sexual predators like Cloughley, DeJaeger, and Horne victimized significant numbers of an entire generation. These victims suffer still and so do their families. The Inuitworld 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 economywe have is government and mineral exploration driven. There is an ongoing and serious housing crisis. Overcrowding plagues manyNunavummiut.

Overcrowding affects their health. It adds stress to an already hard life. It contributes to our shocking domestic violencestatistics. Safe houses for families in distress are few and far between. A shocking number of our children go to school hungry. Socialand recreational infrastructure is woefully lacking. Time and time again we are told that utter boredom leads many youths intodelinquency. 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 onNunavummiut. (Decision at para 60) [Footnote omitted] Then, from R v Anugaa, 2018 NUCJ 2 at paragraph 42: “We recognize that Inuit social governance continues in parallel to theapplication of pan-Canadian criminal law.

Therefore, we strive to incorporate the precepts of Inuit Qaujimajatuqangit into our judgmentsand all our practices” (footnote omitted): Decision at para 61. [26] The precepts of Inuit Qaujimajatuqangit were set out and commented upon by the sentencing judge, at paragraphs 62-63, andincluded inter alia, Inuuqatigiitsiarniq (respecting others, relationships and caring for people); Aajiiqatigiinniq (decision making throughdiscussion and consensus); and Piliriqatigiinniq or Ikajuqtigiinniq (working together for a common cause).

While he found that Inuit arestill subject to the same laws and sentencing principles as all Canadians, “[r]eference to Inuit Qaujimajatuqangit is, however, ameaningful application of the clear Gladue direction to judges that Aboriginal persons are to be sentenced ‘differently, in order toendeavor to achieve a truly fit and proper sentence in the particular case’”. He cited the finding in Gladue at paragraph 70 that “. . . mosttraditional aboriginal conceptions of sentencing place a primary emphasis upon the ideals of restorative justice. This tradition isextremely important to the analysis under s. 718.2(e).”

[ 27 ] Against this backdrop, the sentencing judge moved on to consider the gravity of the offence and the circumstances of the offender. Regarding the offence, the sentencing judge focused on the fact that “[f]irearm related violence is extremely serious”. He found the offence to be “highly dangerous behaviour”, and that s 244.2 was a “double mens rea ” offence which included heightened moral blameworthiness; “[t]his 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”: Decision at para 67. [ 28 ] As to aggravating factors, the sentencing judge incorrectly found it was aggravating that Mr. Itturiligaq deliberately fired his rifle and fired at a house knowing it was occupied. These factors are already built into the offence and the minimum punishment prescribed by law; they cannot be aggravating. He correctly found, however, that this was a case of domestic violence, there was a “gratuitous assault” on the complainant when she joined Mr.

Itturiligaq on his snow machine, he exhibited controlling and threatening behaviour towards her, and there was a “prevalence of firearm crime not only in Nunavut, but in the offender’s community – Kimmirut”: Decision at para 68. [ 29 ] The sentencing judge found mitigation in Mr. Itturiligaq’s early guilty plea, his acceptance of responsibility and remorse upon arrest, that the complainant had forgiven him and that he did not have a criminal record. “Mr. Itturiligaq is a youthful first time offender. He is not a hardened criminal”: Decision at paras 69-70. He then reviewed Mr.

Itturiligaq’s background, and in respect of the anticipated effect of a penitentiary sentence on him, found at paragraph 80: . . . 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. [ 30 ] Having considered the penological goals and relevant sentencing principles in relation to the facts of this matter, the sentencing judge found that there were no reasonable alternatives to imprisonment, which he found “consistent with traditional Inuit justice”: Decision at para 86.

He then turned to the aspect of parity in assessing the appropriate length of that sentence, and held the facts in R v Ookowt , 2017 NUCJ 22 , were similar to the case at bar. In Ookowt , the sentencing judge found the four year mandatory minimum was grossly disproportionate to the two years less a day sentence that was deemed fit for the 19 year old intoxicated Inuk offender who was assaulted when walking home, retrieved his father’s rifle, and fired one shot at the assailant’s house, narrowly missing an occupant: Decision at paras 91-94.

Since then, the sentence appeal in Ookowt has been allowed: 2020 NUCA 5 . [ 31 ] The sentencing judge ultimately concluded that “[i]n 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”: Decision at para 111. He found that a fit jail sentence for Mr.

Itturiligaq would be in the range of 18 months to two years less a day in a territorial jail, stating “[t]he restraint principle is a constitutional requirement that 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”: Decision at para 112. [ 32 ] The sentencing judge determined that the second part of the Nur test required him to decide whether the mandatory minimum punishment of four years would be grossly disproportionate to the sentence of two years less a day he had deemed appropriate. [ 33 ] As per the Supreme Court of Canada in R v Morrisey , 2000 SCC 39 at para 26 , [2000] 2 SCR 90 [ Morrisey ], a grossly disproportionate sentence is a “punishment which is so excessive as to outrage our society’s sense of decency”; punishment which would be “abhorrent or intolerable”.

While the sentencing judge noted gross disproportionality is not merely a mathematical equation, he determined that the differential of 24 months was “a highly significant factor”, as was the fact that Mr.

Itturiligaq would be required to serve the four year minimum sentence in an out-of-province penitentiary, away from his community and family: Decision at paras 114- 115. [ 34 ] Returning to Gladue , and noting the Truth and Reconciliation Commission of Canada Call to Action 32 to allow judges to depart from mandatory minimum sentences with reasons, the sentencing judge found at paras 118-121: 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. 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. . . . . . 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. 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. 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. [Emphasis in original; footnotes omitted] In the result, the sentencing judge concluded that the four year mandatory minimum was “far removed from the least restrictive sentence required”, and violated “the principles of proportionality, parity, rehabilitation, restraint and Criminal Code s 718.2”: Decision at para 123. [ 35 ] Specifically, he found that if he imposed the mandatory minimum “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”: Decision at paras 122-124. [ 36 ] Having determined that the mandatory minimum sentence under s 244.2(3)(

b) constituted cruel and unusual punishment and violated Mr. Itturiligaq’s s 12 Charter rights, the sentencing judge declined to consider whether s 244.2(3)(

b) was also a grossly disproportionate sentence on the basis of the reasonable hypothetical case: Decision at paras 125-126. [ 37 ] Finally, he determined that s 244(3)(

b) was not saved under s 1: Decision at para 130. III. Grounds of Appeal [ 38 ] The Crown raises two issues on appeal: 1. Did the sentencing judge err in concluding that the mandatory minimum sentence violated s 12 of the Charter as being cruel and unusual punishment? 2. Regardless of the mandatory minimum sentence, was the sentence imposed on Mr. Itturiligaq unfit in the totality of the circumstances? [ 39 ] In raising these grounds of appeal, the Crown seeks the admission of fresh evidence related to Indigenous-specific programming available within Canadian penitentiaries. [ 40 ] Mr.

Itturiligaq also seeks to admit fresh evidence relating to further programming he has undertaken while incarcerated. He maintains the sentencing judge’s decision regarding the unconstitutionality of s 244.2(3)(

b) was correct, and that the territorial sentence imposed upon him was fit and proper in all of the circumstances. [ 41 ] While the Intervenor, Aboriginal Legal Services, took no position on the ultimate disposition of this appeal, it provided written and oral submissions about:

a) relevant case law and directions from the Supreme Court of Canada (and other courts) with regard to s 12 applications in general, and the application of the principles from Gladue to the s 12 Charter analysis;

b) the basis upon which a sentencing judge can take judicial notice of Indigenous approaches to justice, in this case Inuit Qaujimajatuqangit, and the weight to be placed on such findings when considering statutory sentencing principles;

c) the significance, if any, of the opinion of the victim of the offence in arriving at a fit sentence based on Gladue principles; and

d) the weight to be placed on where an offender will serve their sentence. These thoughtful and able submissions were considered together with those of the parties, in rendering this judgment. IV.

Standard of Review [ 42 ] A sentencing decision is entitled to deference absent an error in principle, a failure to consider a relevant factor, or an overemphasis of the appropriate factors which impacted the sentence, or the sentence is demonstrably unfit: R v Lacasse , 2015 SCC 64 at paras 39-44 , 67, [2015] 3 SCR 1089 [ Lacasse ]; R v Friesen , 2020 SCC 9 at paras 26-29 . [ 43 ] Deference is also owed to a determination that a Charter right has been violated, absent overriding and palpable error.

However, whether a sentence judge correctly interpreted the scope of the Charter right is a question of law reviewed for correctness: R v EJB , 2018 ABCA 239 at para 20 [ EJB ]. [ 44 ] As recently reaffirmed in Nur at para 39 and R v Lloyd , 2016 SCC 13 at paras 24 , 32-33, [2016] 1 SCR 130, a high bar has been set as to what will constitute cruel and unusual punishment under s 12 of the Charter . It is not enough to show that a mandatory minimum sentence is excessive or harsh; rather, the mandated punishment must be “so excessive as to outrage standards of decency” and “abhorrent or intolerable” to society.

The Supreme Court has recognized that “[t]he wider the range of conduct and circumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whom the sentence would be grossly disproportionate”: Lloyd at para 24 . V. Analysis [ 45 ]

Section 244.2 of the Criminal Code provides: 244.2

(1) Every person commits an offence (

a) who intentionally discharges a firearm into or at a place, knowing that or being reckless as to whether another person is present in the place; or (

b) who intentionally discharges a firearm while being reckless as to the life or safety of another person. . . .

(3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and (

a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if the offence is committed for the benefit of,at the direction of or in association with a criminal organization, is liable to imprisonment for a term of not more than 14 years and to aminimum punishment of imprisonment for a term of (

i) five years, in the case of a first offence, and (ii) seven years, in the case of a second or subsequent offence; and (

b) in any other case, is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for aterm of four years. [46]

Section 12 of the Charter provides: 12 Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. [47]

Section 244.2 is a relatively new

section of the Criminal Code, enacted October 2009 pursuant to Bill C-14,

An Act to amendthe Criminal Code (organized crime and protection of justice system participants), SC 2009, c 22. At the time, it was colloquiallyreferred to as the “gang bill” enacted in response to gang violence, and more specifically, drive-by shootings in larger Canadian cities.

Itspurpose was to create an offence that prohibited the intentional discharge of a firearm in circumstances where the shooter turned theirmind to the fact that firing the gun could put the life or safety of other persons at risk. [48] The new provision was aimed at filling a gap in the Criminal Code regime, where previously drive-by shootings or the likecould only be prosecuted under s 86, a negligence-based careless use of a firearm offence, or s 244, discharging a firearm with intentrequiring proof the firearm was discharged at a particular person with intent to cause bodily harm (and which also carries a four yearmandatory minimum sentence).

The mandatory minimum punishments prescribed under s 244.2 were Parliament’s response not only toorganized crime, but were targeted at the deliberate and dangerous conduct of firing a gun into an open space or place (building,structure, vehicle or the like) knowing, or being reckless as to whether, others may be present. [49] The implementation of a mandatory minimum sentence was met with opposition during Parliamentary debates; concern wasexpressed both about limiting judicial discretion in sentencing and that s 244.2 was so broad as to capture conduct less culpable thandrive-by shootings.

The Federal Government, however, was steadfast in its belief that mandatory minimum punishments were anappropriate vehicle through which to “send a message”; denunciation and deterrence of gun violence were primary concerns.

Further, s244.2 is part of a broader legislative sentencing regime concerning firearm violence and is one of many Criminal Code offences whichcarry a mandatory minimum sentence of four years if committed with a firearm: criminal negligence causing death (220(a));manslaughter (236(a)); attempted murder (239(1)(a.1)); discharging a firearm with intent (244(2)(b); aggravated sexual assault (273(2)(a.1)); kidnapping (279(1.1)(a.1)); hostage taking (279.1(2)(a.1)); robbery (344(1)(a.1)); and extortion (346(1.1)(a)). [50] The Charter guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can bedemonstrably justified in a free and democratic society.

Mandatory minimum sentences enacted into Canadian law are subject to Charterscrutiny; the four-year mandatory minimum sentence in s 244.2(3)(

b) is no exception. [51] As mentioned, Nur adopted a high bar for what constitutes cruel and unusual punishment; aimed at punishments that are morethan merely excessive. Nur also found that in determining an appropriate sentence for the purpose of the comparison demanded by thisanalysis, regard was to be had to: the sentencing objectives in s 718 of the Criminal Code; any aggravating and mitigating factorsincluding those listed in s 718.2(a)(

i) to (iv); the principle that a sentence should be similar to sentences imposed on similar offenders forsimilar offences committed in similar circumstances (s. 718.2(b)); the principle that where consecutive sentences are imposed, thecombined sentence should not be unduly long or harsh (s. 718.2(c)); and the principle that courts should exercise restraint in imposingimprisonment (ss. 718.2(

d) and (e)). [52] “In reconciling these different goals, the fundamental principle of sentencing under s. 718.1 of the Criminal Code is that ‘[a]sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender’”: Nur at para 42. Asexplained in R v Ipeelee, 2012 SCC 13 at para 37, [2012] 1 SCR 433: Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This isclosely tied to the objective of denunciation.

It promotes justice for victims and ensures public confidence in the justice system. . .Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness ofthe offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender.

In the Canadiancriminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense ofthe other. [53] Nur at paragraph 44 cautioned that mandatory minimum sentences “may, in extreme cases, impose unjust sentences, becausethey shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality.” But, theimpugned punishment must be more than merely disproportionate or excessive.

Rather, “[i]t must be ‘so excessive as to outragestandards of decency’ and ‘abhorrent or intolerable’ to society”: Lloyd at para 24, citing Morrisey at para 26 and R v Ferguson, 2008SCC 6 at para 14, [2008] 1 SCR 96. “It is only on ‘rare and unique occasions’ that a sentence will infringe s. 12, as the test is ‘veryproperly stringent and demanding’: Steele v. Mountain Institution, (SCC), [1990] 2 S.C.R. 1385, at p. 1417”: R vBoudreault, 2018 SCC 58 at para 45, [2018] 3 SCR 599. [54] Analyzing a challenge under s 12 of the Charter involves two steps.

First, the court must determine what constitutes a fit,proportionate sentence for the offence committed by the offender, having regard to the objectives and principles of sentencing inthe Criminal Code. Second, the court must ask whether the mandatory minimum sentence requires the imposition of a sentence that isgrossly disproportionate to that fit and proportionate sentence. “If the answer is yes, the mandatory minimum provision is inconsistent

with s 12 and will be unconstitutional, unless justified under s 1 of the Charter ”: Nur at para 46 ; Lloyd at para 23 . Mr. Itturiligaq’s sentence was disproportionate and demonstrably unfit

a) Seriousness of the offence [ 55 ] In urging the imposition of the mandatory minimum sentence, the Crown submitted before the sentencing judge that firearm- related offences are of the utmost gravity; the double mens rea requirement in s 244.2 of intentionally discharging a firearm with knowledge or recklessness as to whether others are present, means the offender has an elevated moral blameworthiness. Further, denunciation and deterrence are primary considerations and factors personal to the offender are to be given less weight.

The domestic nature of this offence was aggravating, as were the deliberateness of Mr. Itturiligaq’s conduct and the prevalence of firearm-related offences in Nunavut. The Crown acknowledged the mitigating effects of Mr. Itturiligaq’s early guilty plea and lack of a prior criminal record, as does this Court. [ 56 ] In our view, the Crown is correct that Parliament intended to give primacy to denunciation and deterrence to address pressing and substantial concerns regarding firearm violence in Canada. Indeed, Mr. Itturiligaq’s own counsel at sentencing did not disagree.

In recognizing the primacy of denunciation and deterrence, the gravity of this firearm offence, the domestic context and the prevalence of this type of highly dangerous conduct in Nunavut, defence counsel submitted that a two year penitentiary sentence would be fit in this matter.

While a sentencing judge is not prohibited from going below the sentence urged by either or both counsel, it is notable that the sentencing judge did so here by imposing a territorial sentence that was more than two years under the mandatory minimum sentence prescribed by law. [ 57 ] The sentencing judge stated that firearm violence is extremely serious and will attract a “stern” judicial response in rural areas. Moreover, he noted Mr. Itturiligaq was sober and knew there were people in the house; he declared that Mr.

Itturiligaq “violated important Inuit social values”, while committing what he found to be a double mens rea offence which heightened his moral blameworthiness. [ 58 ] The sentencing judge correctly noted as aggravating that this was a case of domestic violence, there was what he called a “gratuitous” assault on the victim when she left the house, Mr. Itturiligaq exhibited controlling and threatening behaviour towards his partner, and that firearm offences are prevalent not only in Nunavut, but in the Kimmirut community. However, he failed to give sufficient weight to these factors.

Domestic violence in Nunavut is rampant – it has the highest rate of domestic violence in Canada: see Shana Conroy et al, Family violence in Canada: A statistical profile, 2018 , (Statistics Canada, 12 December 2019); Samuel Perreault & Laura Simpson, Criminal victimization in the territories, 2014, (Statistics Canada, 27 April 2016).

Per capita, gun violence in the North is also higher than elsewhere in Canada: see Yvan Clermont, Firearm-related crime in Canada , (Statistics Canada, 18 February 2019); Adam Cotter, Firearms and Violent Crimes in Canada, 2016 (Statistics Canada, 28 June 2016). [ 59 ] Even if Nunavut is not a “war zone” for gangs, as the sentencing judge put it, Nunavut has a pressing interest in deterring gun violence. Firearm violence is equally, if not more, grave and aggravating in the domestic relationship context and in small community settings where there are limited means of escape.

As correctly found in Oud at para 36 , in respect of s 244.2: Gun violence is not reserved to urban gangland activity. Indeed the terrible events at École Polytechnique in December 1989, which may be seen as the beginning of rethinking Canada’s approach to gun offences, were unrelated to gang activity. Surely landscapes unrelated to gangs are intended to be fully protected by this provision. [ 60 ] This offence was explicitly premeditated; Mr.

Itturiligaq left the dispute with his domestic partner to retrieve his rifle which he ultimately used to gain her compliance after she earlier refused to do as he commanded. When the victim exited the house he had shot at, Mr. Itturiligaq struck her with the weapon he had just fired. [ 61 ] As the Crown submitted, it is no comfort to the person whose home is targeted, or to any of the occupants, to say they were not victims of “gang-related” gun violence, or that Mr. Itturiligaq only aimed at the roof of the house.

Time and again, Canadian law has affirmed individuals are entitled to feel safe in their own homes. [ 62 ] Implicit in the sentencing judge’s reasons, in our view, was his determination that gang-related gun violence on the streets of Vancouver is qualitatively more serious than gun violence in Nunavut that occurs in the context of a domestic relationship with the intended consequence of intimidating, threatening, controlling and terrifying one’s domestic partner. This was a substantial error, one which materially impacted the sentencing judge’s proportionality assessment.

Indigenous women in northern communities are entitled to the same protection from the Court as anyone else: R v SI , 2017 NWTSC 18 at p 39, per Charbonneau J.

b) Serving a penitentiary sentence [ 63 ] A further error by the sentencing judge is reflected in his comment that penitentiaries are reserved for “murderers, serial offenders and hardened criminals”. This is not a correct statement of the law, or a correct statement of penological goals. Penitentiaries are reserved for offenders, including first time offenders, who commit very serious offences warranting a sentence of two years or more, including the offence for which Mr.

Itturiligaq was convicted. [ 64 ] The Crown further contends that in the absence of any evidence, the sentencing judge resorted to untested and unsubstantiated personal conjecture in determining that if Mr. Itturiligaq were to serve a penitentiary sentence outside of Nunavut, it would have a grossly disproportionate negative impact on him as an Inuit offender.

The Crown submits this was a pivotal finding that drove the court’s determination that the four-year mandatory minimum punishment was cruel and unusual under s 12 of the Charter . [ 65 ] The Crown asserts that had the sentencing judge received evidence, which the Crown now seeks to have admitted, he would have reached the opposite conclusion. Namely, that the Correctional Service of Canada (“CSC”) makes significant efforts to ameliorate

the negative impacts of penitentiary incarceration of Inuit persons outside of Nunavut, including providing a variety of culturally sensitive and appropriate programming within the penitentiary system. [ 66 ] Mr. Itturiligaq objects to the admission of the Crown’s fresh evidence, contending it is not new and could have been adduced at the sentence hearing; further, Mr. Itturiligaq argues that case law does not support such a Crown application on a Crown appeal.

While the Intervenor takes no position on the Crown’s fresh evidence application, it does state that the evidence of programming offered by the CSC as presented in the Crown’s fresh evidence “misses the point”, and instead, points to Gladue at para 68 which provides that “aboriginal offenders are, as a result of [their] unique systemic and background factors, more adversely affected by incarceration and less likely to be ‘rehabilitated’ thereby, because the internment milieu is often culturally inappropriate and regrettably discrimination towards them is so often rampant in penal institutions.” [ 67 ] Since we conclude the Crown’s evidence does not meet the requisite criteria for admission, we decline to comment further on the general propriety of such a Crown application on appeal.

We also conclude, however, that the sentencing judge committed a reversible error that materially impacted his proportionality assessment by overemphasizing the negative impact on Mr. Itturiligaq of penitentiary imprisonment outside of Nunavut, particularly in the absence of any direct evidence. [ 68 ] It cannot be said that holding Mr.

Itturiligaq accountable for his actions by imposing a fit and proportionate sentence for this offence given its gravity and his moral culpability, becomes an unfit, much less a grossly disproportionate sentence, on the basis that he must serve his penitentiary time in another jurisdiction. [ 69 ] We do not disagree that serving a penitentiary sentence in another jurisdiction, and the distance, isolation, language and cultural difficulties this might entail for an Indigenous offender, is a valid consideration when assessing proportionality.

However in these circumstances, this consideration cannot be employed together with the other factors which were over and underemphasized, to reduce a sentence by more than half the mandatory minimum sentence which is otherwise fit and proper. [ 70 ] It is also of note that while s 28 of the Corrections and Conditional Release Act , SC 1992, c 20 , provides that the CSC shall take into account the person’s home community and family, among various other factors, in determining where and in which penitentiary an offender will be placed, it does not guarantee that any offender will be placed in the facility closest to their home, family or community, or even within the same province or territory, though we do recognize the double disadvantage when Inuk offenders are removed from their home communities, both physically and culturally.

c) Forgiveness by the victim [ 71 ] The appropriateness of the sentencing judge placing any significant weight on the “forgiveness” of Mr. Itturiligaq’s partner is a live issue. Mr. Itturiligaq’s moral blameworthiness in committing the offence did not change because his domestic partner may have forgiven him. Further, in the context of this case, it was not crystal clear if and why the victim forgave Mr.

Itturiligaq; no Victim Impact Statement was filed, she did not testify and said nothing more (in the Pre-Sentence Report) than that she had visited him in custody, remained supportive and would return to living with him upon his release.

Whether this speaks to actual forgiveness or to a pattern seen all too often in abusive relationships, is open for debate. [ 72 ] In some situations, perhaps this one, capitulation may be mistaken for forgiveness because in the reality of the victim’s and her child’s circumstances, whether financial, geographic, housing or employment-related, she may have concluded she had no realistic choice but to allow Mr. Itturiligaq back into their lives. It is difficult to say what the victim was thinking, in the absence of adequate evidence from her.

Therefore, while we agree that neither the harm done to a victim, nor their needs going forward should be ignored in sentencing, placing undue weight on “forgiveness” before determining that this is what the victim actually meant may reveal judicial error which results in a disproportionate sentence. [ 73 ] Lastly, the findings in R v AD , 2019 ABCA 396 at paras 25-29 are applicable in this case: The fundamental purpose of sentencing is to protect society (s 718).

Unfortunately, there is clear and overwhelming evidence that, when it comes to protecting Aboriginal women from violence and discrimination, more needs to be done. The homicide rate for Aboriginal women is six times that of non-Aboriginal women, and higher than the rate for non-Aboriginal men. Aboriginal women are almost three times more likely to experience violent victimization than non-Aboriginal women.

Compared with non-Aboriginal women, Aboriginal women are almost three times more likely to report being the victim of spousal violence and, compared with non-Aboriginal victims of spousal violence, Aboriginal women are more likely to have experienced spousal violence on more than one occasion. The sad fact is that Aboriginal women are disproportionately affected by domestic violence and violence in general and this reality should inform the sentencing process if there is to be any hope of achieving the fundamental purpose of sentencing and meeting the objectives set out in

section 718 of the Criminal Code , which include denunciation and deterrence. Consideration of the victim, in this case the fact that she was an Aboriginal female, does not negate or otherwise trump the necessity of courts, when sentencing offenders, paying particular attention to the circumstances of Aboriginal offenders (s 718.2(e)).

Rather, it requires that, in having regard to the circumstances of Aboriginal offenders, the courts do not discount the lives of or harms done to Aboriginal victims of crime, their families and their communities ( R v Whitehead , 2016 SKCA 165 at para 83 , 2017] 5 WWR 222 , citing Sanjeev Anand, “The Sentencing of Aboriginal Offenders, Continued Confusion and Persisting Problems: a comment on the decision in R. v. Gladue ” (2000) 42 Can J Crim 412 at 418). . . .

Considering the circumstances of the victim and the effects of the offence on the community does not mean that the circumstances of the offender, in particular the circumstances of Aboriginal offenders, are disregarded or, as was argued by the appellant in R v Johnny , 2016 BCCA 61 , that consideration of the victim’s circumstances effectively disentitles the offender from a meaningful Gladue analysis under s. 718.2(e).

What it does mean is that, in arriving at a fit sentence, judges must take into account the circumstances of the offender, the circumstances of the victim and the effect of the crime on the community in which it took place. The fact that a sentencing judge is required to consider one set of circumstances does not mean other circumstances are ignored (see Johnny at para 21 ).

Taking the circumstances of Aboriginal victims into account in sentencing is consistent with the principles of sentencing, and arguably necessary in order to meaningfully achieve the fundamental purpose of sentencing, namely the protection of the public. The circumstances of both the victim and the offender must be considered as relevant factors and, along with other relevant factors (e.g. aggravating and mitigating), be considered by the sentencing judge to arrive at a fit sentence. [Footnotes omitted]

d) Inuit Qaujimajatuqangit [ 74 ] Relatedly, the Crown asserts the sentencing judge elevated the importance of Inuit social justice concepts in respect of the “forgiveness” factor, to a materially erroneous degree. We agree. [ 75 ] There is undoubtedly an important intersection between Inuit Qaujimajatuqangit and Canadian criminal law rules and processes.

However, without any evidentiary record to assess whether the Inuit community’s application of its own Inuit Qaujimajatuqangit would have necessarily or inevitably resulted in a lower sentence, it was not correct to assume that in a domestic dispute where a powerful weapon was fired in anger at an occupied home, the Inuit community itself would have placed any mitigating weight on the victim’s willingness to continue a relationship with Mr.

Itturiligaq. [ 76 ] It may be that in an appropriate case, on appropriate conditions, the Inuit community might forgive a transgressor’s misconduct; however, it is equally likely that adhering to its social precepts, the Inuit community simply will not tolerate domestic violence and the victimization of its women, of any kind, with or without a firearm.

Rather, the Inuit social justice precepts recited by the sentencing judge tend to forcefully underline that proportionate sentencing of offenders, whether within the restorative justice healing circle or a court of Canadian criminal law, is a contextual exercise in which the victim’s experience is objectively relevant, regardless of their subjective resilience. [ 77 ] The experience of any domestic partner, usually a woman, who is subjected to the fury of her rifle-bearing domestic partner, and is inside a house he fires upon, is objectively terrifying as is being hit by the rifle he just discharged in her direction.

Had there been proper evidence before the sentencing judge, perhaps it would have demonstrated the Kimmirut community’s common revulsion of intrafamilial violence. Perhaps, too, it would have revealed a paramount Inuit social value that its women, too, are entitled to be free from victimization at the hands of their domestic partners and if such victimization occurs, it will be the community’s common purpose to protect those victims from further abuse and severely punish their abusers. [ 78 ] Gun violence of any kind, anywhere, has no place in Canadian society, including predominantly Inuit communities.

In light of the paucity of evidence as to how, when and in what circumstances Inuit Qaujimajatuqangit might have weighed in on any one, or all, of the mitigating and aggravating factors identified, including the domestic violence context, the sentencing judge was wrong to place mitigating emphasis on the bare, but unexplored, fact that this victim was prepared to continue associating with Mr. Itturiligaq.

Simply put, there was no evidence to suggest that Inuit Qaujimajatuqangit would place any less emphasis on denunciation and deterrence than Parliament or the Criminal Code , or that Inuit Qaujimajatuqangit would invariably treat as mitigating what the victim said. On these matters, no one asked for the advice of the Inuit community, or for direct evidence from those tasked with interpreting and applying Inuit Qaujimajatuqangit. [ 79 ] It is notable that Mr. Itturiligaq’s father and step-mother both expressed concerns about his continued relationship with the victim; “they bring out the worst in each other”.

Certainly, and from Mr. Itturiligaq’s own admission, this offence is clear evidence of that. It can never happen again.

e) Gladue factors [ 80 ] Finally, significant attention was paid by the sentencing judge to Gladue factors, and to the principles relevant to sentencing Indigenous offenders. He reminded himself that he must take judicial notice of the factors outlined by the Supreme Court of Canada – “the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples”.

These provide “the necessary context for understanding and evaluating the case-specific information provided by counsel”: Ipeelee at para 60 . [ 81 ] However, the sentencing judge was also bound to apply the caution that “[t] hese matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders”: Ipeelee at para 60 . [ 82 ] As set out in R v Swampy , 2017 ABCA 134 at paras 25-26 , 29, 347 CCC (3d) 505 , “[i]t is an error to proceed on the basis that Gladue factors do or do not justify departure from a proportionate sentence . . .

Instead, application of the Gladue analysis achieves a proportionate sentence” (emphasis in original). The sentencing judge’s task, therefore, is to assess the moral blameworthiness of each individual offender, and in so doing, consider their unique circumstances: Ipeelee at paras 18, 75 . [ 83 ] Mr. Itturiligaq is an Inuk hunter, who was raised in the traditional ways to hunt for country food. He earned some income from the sale of the furs he harvested, and also provided his family and his community with the food he procured.

There is no indication he is a substance abuser, or that he suffers from any physical or mental infirmities other than hearing loss for which he uses hearing aids; there is no known history of residential schooling in his family or that he suffered abuse while he was growing up. He attained his grade 12 education, was fully employed, and by all accounts, enjoyed the respect and support of his family, friends and community.

He was sober when he shot at the house occupied by his domestic partner, and the others. [ 84 ] While history of colonialism and its intergenerational effects must be acknowledged, in our view the Gladue factors in this case do not operate to significantly diminish the high level of moral culpability underlying this offence. [ 85 ] In

summary, the sentencing judge committed errors that had a material impact on sentence, to a degree that Mr. Itturiligaq’s sentence is demonstrably unfit.

What is a fit sentence for Mr. Itturiligaq? [86] A fit sentence proportionate to the gravity of this offence and Mr. Itturiligaq’s moral blameworthiness would be in the rangeof four years’ imprisonment in a penitentiary. Persuasive case law supports this conclusion, including R v Lyta, 2013 NUCA 10, 2013 NUCA 146, 301 CCC (3d) 486 [Lyta]; Oud; and R v McMillan, 2016 MBCA 12, 326 Man R (2d) 56 [McMillan]. [87] As stated in the reasons of Slatter JA (dissenting, but not on this point) in Lyta at paragraph 42: This case concerns a new offence, which was recently introduced into the Code with a 4 year minimum.

This minimum cannot be areflection on prior sentences, but rather is an indication of the seriousness with which Parliament regards the newly created offence. Theseriousness is obviously a reflection of the grave risk that firing gunshots into occupied buildings can have, as reflected by the tragicconsequences in cases like R v D. WC, 2013 ABPC 112. [88] Echoing McMillan at paragraph 1, Mr. Itturiligaq committed an offence of serious violence. The sentencing judge’s failure toimpose a penitentiary sentence sends the wrong message.

Significant penitentiary time is necessary to reflect society’s denunciation andcondemnation of such conduct, particularly when it occurs in the domestic context. Society expects a sentence that “will serve as ageneral deterrent to prevent others from acting so recklessly in the future.” A four year sentence is a fit and proportionate sentence in thecircumstances of this offence and this offender. [89] Mr. Itturiligaq applied to admit new evidence demonstrating his further rehabilitation efforts while incarcerated. Given thelack of objection from the Crown, we grant his application and admit the new evidence.

We also acknowledge the evidence of hisrehabilitative efforts and completed programming which was before the sentencing judge. While Mr. Itturiligaq’s efforts are to becommended, they must be balanced against all other factors. [90] In Oud, the British Columbia Court of Appeal rejected the sentencing judge’s view that in the case of a young offender withgood rehabilitation prospects, whose moral blameworthiness was at the low end of scale, the mandatory minimum sentence cast toobroad a net because there were other valid penal alternatives.

Instead, Oud held at paragraph 40, “it is open to Parliament to consider thatthis behaviour by an adult − inherently dangerous and highly disruptive of the public peace − will attract a consistent responsecommensurate with Parliament’s deterrent objective. As was observed in Nur (2013 ONCA 677 at para. 107). . . mitigating factorspersonal to an accused ‘necessarily [take on] a less significant role when fixing the appropriate penalty’ for a firearms-related offence”;see also Oud at para 65. [91] We have reached the same conclusion here. Mr.

Itturiligaq was an adult whose offending behaviour was “inherentlydangerous and highly disruptive of the public peace”; the positive steps he has taken since the offence must necessarily be consideredsecondary to denunciation and deterrence.

The conduct caught under s 244.2 of the Criminal Code must attract a consistent responsecommensurate with Parliament’s deterrent objective. [92] Recognizing this offence occurred in a small, predominantly Inuit community in Nunavut, and that there are Gladue factorsand Inuit Qaujimajatuqangit considerations, none of these factors operate to make the four-year mandatory minimum a grosslydisproportionate sentence for this offence or this offender. We are keenly aware that in so concluding, Mr.

Itturiligaq would, in alllikelihood, have to serve his period of incarceration away from his home community, his family, and his child because Nunavut has nofederal penitentiary. We understand the sentencing judge’s concerns in this regard, and similar comments that have been made in varioussentencing decisions in this jurisdiction; it may be well past the time that the Government of Canada ought to have addressed thissituation. [93] Regardless, holding Mr.

Itturiligaq appropriately accountable for his actions by imposing a fit and proportionate sentence forthis offence given his moral culpability, does not lead to a grossly disproportionate sentence only by reason he must serve his sentence inanother provincial jurisdiction. [94] We are not persuaded that the mandatory minimum sentence of four years reaches the higher threshold of being “grosslydisproportionate” to the fit and proportionate sentence for this offence, nor is it “so excessive as to outrage standards of decency”:Lloyd at para 24. Mr.

Itturiligaq’s youth, lack of a criminal record, remorse and rehabilitation prospects do provide countervailingmitigation to the gravity of his offence and the aggravating factors present in this case; for these reasons, we are not persuaded that Mr.Itturiligaq’s conviction attracts a sentence that is greater than the four-year mandatory minimum penalty. In all of the circumstances,however, these mitigating factors also do not weigh so heavily as to justify imposition of a territorial sentence and a determination that s244.2(3)(

b) violates s 12 of the Charter and is unconstitutional under s 52 of the Charter. [95] In light of our conclusion that four years is in the range of a fit and proportionate sentence for Mr. Itturiligaq’s conduct, itfollows that we do not find the mandatory minimum punishment grossly disproportionate when compared to that fit sentence. It cannotbe said, therefore, that the mandatory minimum under s 244.2(3)(

b) reaches the higher margin of being grossly disproportionate for theoffence, or so excessive as to outrage standards of decency. In our view, the four-year mandatory minimum is not cruel and unusualpunishment because it does not go beyond that which is necessary to achieve a valid penal purpose. A penitentiary sentence in the rangeof four years is the valid and appropriate means by which the law’s denunciatory and deterrent objective can be achieved. [96] Having found that the mandatory minimum punishment is not a grossly disproportionate sentence for Mr.

Itturiligaq, it is notnecessary to consider whether the mandatory minimum punishment would be grossly disproportionate for a reasonable hypotheticaloffender, per Nur. Hypotheticals were not considered by the sentencing judge; assessing hypotheticals afresh on appeal is less than ideal:see R v Stephenson, 2019 ABCA 453 at para 19; R v Newborn, 2020 ABCA 120 at para 55. VI. Conclusion

[ 97 ] In reaction to and in furtherance of a dispute with his domestic partner, Mr. Itturiligaq fired a loaded rifle at a home he knew to be occupied. The mandatory minimum sentence of four years imprisonment under s 244(3)(

b) is not a grossly disproportionate sentence. [ 98 ] Accordingly, the Crown’s appeal is allowed. The declaration of unconstitutionality of s 244.2(3)(

b) is set aside, the sentence imposed by the sentencing judge is set aside, and a four-year penitentiary term is substituted. [ 99 ] However, given the significant period of time that has elapsed since Mr. Itturiligaq was sentenced in October of 2018, and given that his full sentence is likely nearing completion, we stay the service of the sentence of imprisonment. Mr. Itturiligaq sought an order setting aside the victim surcharge; the Crown consents. We so order. Appeal heard on September 17, 2019 Reasons filed at Iqaluit, Nunavut this 5th day of June, 2020 I concur: Authorized to sign for: Shaner J.A.

Schutz J.A. I concur: Authorized to sign for: Greckol J.A. Appearances: J.A. Hyman for the Appellant M. Martin for the Respondent J. Rudin for the Intervenor