R v Ookowt, 2020 NUCA 5

Nunavut Court of Appeal Citation: R v Ookowt, 2020 NUCA 5 Date: 20200605 Dockets: 26-17-012-CAP Registry: Iqaluit Between: Her Majesty the Queen Appellant - and - Cedric Ookowt Respondent _______________________________________________________ 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 E.

Johnson dated the 22nd day of September, 2017

(Docket: 15-16-41 ) _______________________________________________________ Reasons for Judgment Reserved of The Honourable Madam Justice Frederica Schutz _______________________________________________________ I. Overview [ 1 ] Mr. Cedric Ookowt, a 19 year old Inuit man, fired a bullet at Mr. Kenneth Arngna’naaq’s Baker Lake house, which shattered a window and missed striking Mr. Arngna’naaq by mere inches. Mr. Ookowt entered a guilty plea to intentionally discharging a firearm into a place knowing that or being reckless as to whether another person was present, contrary to s 244.2(1)(

a) of the Criminal Code , RSC, 1985, c C-46 . Pursuant to s 244.2(3)(b), the mandatory minimum sentence for this offence is four years. [ 2 ] At the sentencing hearing, the Crown sought the imposition of the four year mandatory minimum sentence. The defence submitted that an appropriate sentence for Mr. Ookowt would be in the range of 18 months to two years less one day, and filed a Notice of Constitutional Challenge arguing that the mandatory minimum sentence was grossly disproportionate to a fit sentence for this offence and this offender, contrary to 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 ]. [ 3 ] The sentencing judge ultimately determined that a fit sentence for Mr. Ookowt was two years less one day, plus one year of probation, and that as a result, the imposition of the mandatory minimum sentence “in this case will result in a sentence that is double the appropriate sentence. As a result, I am satisfied that it would result in a grossly disproportionate sentence and I find that

section 12 of the Charter is breached in this case”: R v Ookowt , 2017 NUCJ 22 at para 81 (the “Decision”). [ 4 ] The Crown appeals, contending the sentencing judge failed to properly assess the gravity of this offence and, in keeping with similar firearm cases, argues Mr. Ookowt’s conduct warranted the four year mandatory minimum sentence. [ 5 ] While not joined, this appeal was heard at the same time as the oral hearing in R v Itturiligaq , 2020 NUCA 6 [ Itturiligaq ] , which also involved a declaration of unconstitutionality of s 244.2(3)(

b) under s 12 of the Charter . [ 6 ] As stated in Itturiligaq , 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 or into 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 families, 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 Itturiligaq , we allow the appeal. [ 9 ] In brief, we conclude that the sentencing judge committed errors in principle which led him to impose a disproportionate and demonstrably unfit sentence. Further, we conclude that the four year mandatory minimum sentence under s 244.2(3)(

b) is not a grossly disproportionate sentence for this offence and this offender. Moreover, the hypotheticals put forward by the respondent are not reasonably foreseeable or do not describe situations where the four year mandatory minimum would be grossly disproportionate. [ 10 ] We allow the Crown’s appeal, and set aside the sentencing judge’s declaration that the imposition of the four year mandatory minimum sentence would breach Mr. Ookowt’s s 12 Charter rights.

We quash the sentence imposed and pursuant to s 244.2(3)(b), we impose a term of imprisonment of four years. [ 11 ] However, as in Itturiligaq , given the amount of time that has passed since the original sentence was imposed on Mr. Ookowt on September 22, 2017, and the fact that he has now finished his sentence in its entirety, we stay the service of the sentence of imprisonment. II. Sentencing Decision

A. Circumstances of the offence [12] On June 26, 2016, while out on the land, Mr. Ookowt and his friend Richard, were drinking and had consumed two of three40 ounce bottles of whisky Mr. Ookowt had in his possession. Later that day, Richard dropped Mr. Ookowt off at the home of KennethArngna’naaq. Arnold Arngna’naaq lived with Kenneth, who was his uncle. Mr. Ookowt testified at the sentencing hearing that he wasattacked by Arnold, who punched him in the face and tried to take his alcohol. Arnold admitted in his police statement that he beat upMr.

Ookowt “a little”; Richard ultimately saw the fight and broke it up. Richard heard Mr. Ookowt say he was going to “get a gun”:Decision at para 27. [13] Mr. Ookowt testified that he was highly intoxicated and experienced a blackout that night, putting himself at a 10 out of 10 interms of intoxication. The sentencing judge found that “[d]espite the high level of intoxication, the accused was able to walk home toretrieve his father’s 2250 calibre rifle and position himself on a hill overlooking Kenneth’s house.

He was anxious and upset and fearedfor his security”: Decision at para 28. [14] The sentencing judge found that Mr. Ookowt fired a single shot into the furthest window of the Arngna’naaq house; the bulletshattered the window and narrowly missed hitting Kenneth Arngna’naaq who was in his living room watching television. Arnold was notin the home. The sentencing judge determined “[t]he accused did not intend to physically harm anyone and was not aware if anyone wasin the house”: Decision at paras 28-31. [15] The sentencing judge accepted Mr.

Ookowt’s testimony that Arnold had regularly bullied him since he was 12 or 13 and thatthe bullying, both verbal and physical pushing, had increased in the year leading up the incident. Mr. Ookowt’s mother confirmed thatthere had been increased requests by Mr. Ookowt to be driven to sporting events in the community that coincided with the increasedbullying. The sentencing judge further found that Arnold provoked the physical fight with Mr. Ookowt on the night of the shooting andtried to steal his alcohol. At the time of the shooting, Mr.

Ookowt was in breach of an undertaking related to charges of dangerousdriving and evading the police, with conditions that he keep the peace and abstain from alcohol consumption: Decision at paras 32-35. B. Circumstances of Mr. Ookowt [16] Mr. Ookowt was 19 years old at the time of the offence and 20 years old at sentencing; he had no criminal record. He wasraised by both parents and is the middle child of five children.

He reported he did not experience physical abuse as a child; however, “hisfather was an alcoholic who drank regularly and would frequently pass out while watching movies or listening to music”: Decision atpara 23. [17] Mr. Ookowt’s mother indicated he grew up in a healthy, loving and supportive family home, and was raised in a traditionallifestyle that included camping, hunting, fishing and the maintenance of a dog team. She said that Mr. Ookowt was always very helpfulto the family and was good at repairing things. Mr.

Ookowt left school when he was in grade 11 or 12 to pursue a hunting lifestylewhich, together with his father and elder brother, supports his immediate family. Mr. Ookowt can read and write in English; however hecan speak and understand Inuktitut, and he uses it when speaking with elders. Mr. Ookowt admitted to drinking alcohol since age 17, andsaid his consumption increased after the suicide of a good friend: Decision at paras 22-26. C.

Sentencing judge’s articulation of the required s 12 analysis [18] The sentencing judge noted that s 244.2 came into force on October 2009 as a new nominate offence, with no subsistingpredecessor, and that preceding its enactment courts had consistently upheld four year mandatory minimum sentences for firearm-relatedoffences, including manslaughter (R v Birchall, 2001 BCCA 356, 158 CCC (3d) 340), and criminal negligence causing death (R vMorrissey, 2000 SCC 39, [2000] 2 SCR 90 [Morrisey]): Decision at para 6. [19] The sentencing judge noted the evolution of the law relating to s 12 of the Charter as reflected in R v Smith, (SCC), [1987] 1 SCR 1045, 40 DLR (4th) 435 [Smith], R v Goltz, (SCC), [1991] 3 SCR 485, 67 CCC (3d) 481 [Goltz];Morrisey; R v Ferguson, 2008 SCC 6, [2008] 1 SCR 96; R v Nur, 2015 SCC 15, [2015] 1 SCR 773 [Nur]; and R v Lloyd, 2016 SCC 13,[2016] 1 SCR 130 [Lloyd].

He held that the test in Smith at para 86 was whether the mandated punishment is “so excessive as to outragestandards of decency”. “In order to establish that a particular sentencing provision gives rise to cruel and unusual punishment contrary tos 12 of the Charter, the punishment must be shown to be grossly disproportionate”: Decision at paras 10-11. [20] From Nur, the sentencing judge provided that in the first stage of a s 12 analysis the court must determine whether thechallenged sentencing provision is grossly disproportionate to the individual offender.

This involves a particularized inquiry into theappropriate sentence in the circumstances, and a determination of whether the mandatory minimum sentence is grossly disproportionateto the specific offender. The court is to consider four factors: (

a) the gravity of the offence, (

b) the personal characteristics of theoffender and the circumstances of the offence, (

c) the actual effect of the punishment on the offender, and (

d) the penological goals andsentencing principles underlying the sentence.

No single factor is determinative of the question of gross disproportionality: Decision atparas 12-15. [21] If the impugned sentencing provision is not shown to be grossly disproportionate in its application to the specific offender, thecourt must move to the second stage of the analysis in considering whether the sentencing provision is grossly disproportionate whenapplied to reasonably foreseeable cases: Decision at paras 16-21. [22] In his analysis, the sentencing judge noted that most of the Criminal Code sections directed at mandatory minimumsconcerning the regulation of firearms have not survived s 12 Charter challenges; for example, Nur (unauthorized possession of aprohibited weapon); and R v Shobway, 2015 ONCJ 457 (unauthorized transfer of a restricted weapon).

However, provisions directed atthe use of firearms, including s 244.2 of the Criminal Code, have survived s 12 Charter challenges. He noted that at paras 32-33 of R vOud, 2016 BCCA 332, 339 CCC (3d) 379 [Oud], the British Columbia Court of Appeal indicated that what accounted for the different

results could be attributed to the analysis in Lloyd, and, as found in R v McMillan, 2016 MBCA 12, 326 Man R (2d) 56 [McMillan], thats 244.2 is specifically defined and does not cast an overly broad net due to its “double mens rea requirement”: Decision at paras 58-59. [23] While noting the constitutionality of s 244.2 was not challenged in the Nunavut cases of R v Lyta, 2013 NUCA 10, 561 AR146 [Lyta], R v Utye, 2013 NUCJ 14 [Utye], R v Geetah, 2015 NUCJ 10 [Geetah], or R v Mikijuk, 2017 NUCJ 2, appeal allowed 2017NUCA 5 [Mikijuk], the sentencing judge distinguished those cases on the basis that “the facts were on the high-end of the moralculpability scale, with multiple shots fired in all cases.

A four-year sentence was justified in all cases regardless of the [mandatoryminimum penalty]”: Decision at para 59. [24] In contrast, he found that one shot was fired by Mr. Ookowt, a youthful, first time offender, and that the bullying heexperienced, while not mitigating, was not irrelevant, as similarly found in McMillan: Clearly, the accused’s actions in this case were completely disproportionate to the bullying he had suffered and he did not spontaneouslylash out. However, I do not accept the Crown’s submission that the bullying was irrelevant.

The Court in McMillan accepted thatbullying was a form of intimidation and abuse that was relevant to sentencing. However, when dealing with a serious offence likeshooting into a house, the primary focus should be on the offender’s conduct rather than on his personal factors.

The bullying and theattempt to steal the alcohol should be given less weight, but these factors are relevant. (Decision at para 63) [25] The sentencing judge further noted that the bullied young offender hypothetical considered by the sentencing judge in Oudwas similar to the facts in this case, but that the Court of Appeal in Oud found that the hypothetical “cannot be adequately distinguishedfrom the central premise of the offence, which is that the intentional discharge of a firearm, knowing or being reckless whether others arein the place targeted, is highly dangerous behaviour that will attract a stern response.

This premise is a statement of values and behaviourfor all landscapes of Canada, both urban and rural. . . ”: Decision at para 67. [26] The sentencing judge found a critical difference between the Oud hypothetical and this matter, in that Mr. Ookowt isIndigenous, which necessarily pulled in the sentencing framework from R v Gladue, (SCC), [1999] 1 SCR 688, 171DLR (4th) 385 [Gladue] and R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433 [Ipeelee]. Even without this framework, however, thesentencing judge decided that the combination of bullying, intoxication and firing only one shot meant Mr.

Ookowt was “lower downthe scale of moral blameworthiness than. . . other Nunavut cases”. Additionally, Mr. Ookowt had entered an early guilty plea and wasremorseful. In the result, the sentencing judge determined that a fit and proper sentence in this matter was less than four years beforeconsidering Gladue. He also found Mr. Ookowt was a good candidate for rehabilitation, building on the substance abuse and healthyrelations courses he had already taken at the Baffin Correctional Centre: Decision at paras 70-71, 80. [27] In the result, the sentencing judge determined a fit sentence for Mr.

Ookowt was 18 months to two years less one dayincarceration plus probation: Decision at para 56. [28] In respect of the constitutionality of s 244.2(3)(b), the sentencing judge stated: “It follows that the application of the[mandatory minimum penalty] in this case will result in a sentence that is double the appropriate sentence. As a result, I am satisfied thatit would result in a grossly disproportionate sentence and I find that

section 12 of the Charter is breached in this case”: Decision at para81. III. Grounds of Appeal [29] The Crown appellant argues that the sentencing judge erred in finding the mandatory minimum penalty was grosslydisproportionate in this matter and by declaring s 244.2(3)(

b) to be of no force and effect. It is submitted that the sentencing judge erred: (

a) in principle, by failing to give sufficient consideration to the gravity of the offence, and the principles of denunciation anddeterrence, and by overemphasizing Mr. Ookowt’s personal factors; and (

b) by imposing a sentence that was demonstrably unfit. IV.

Standard of Review [30] As set out in Itturiligaq, a sentencing decision is entitled to deference absent an error in principle, a failure to consider arelevant factor, or an overemphasis of the appropriate factors which impacted the sentence, or where 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. [31] Deference is also owed to a decision as to whether a Charter right has been violated, absent palpable and overriding error.However, whether a sentencing judge correctly interpreted the scope of the Charter right is a question of law reviewed for correctness: Rv EJB, 2018 ABCA 239 at para 20, leave to appeal refused, (SCC) [EJB]. [32] As reaffirmed in Nur at para 39 and Lloyd at paras 24, 32-33, a high bar has been set as to what will constitute cruel andunusual punishment under s 12 of the Charter.

It is not enough to show that a mandatory minimum sentence is excessive or harsh; rather,“it must be so excessive as to outrage the standards of decency”; “abhorrent or intolerable”; shocking the conscience of Canadians. “Thewider the range of conduct and circumstances captured by the mandatory minimum, the more likely it is that the mandatory minimumwill apply to offenders for whom the sentence would be grossly disproportionate”: Lloyd at para 24. V. Analysis

A. The legislation [ 33 ]

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 a minimum 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 a term of four years. [ 34 ]

Section 12 of the Charter provides: 12 Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. [ 35 ] The brief history of s 244.2 is set out in paragraphs 47-49 of Itturiligaq and need not be repeated here. B. The

section 12 test to determine constitutionality [ 36 ] Recently, in R v Ford , 2019 ABCA 87 at para 10 , 371 CCC (3d) 250, the Alberta Court of Appeal reviewed the s 12 considerations mandated by Nur and Lloyd and helpfully set out the analytical framework in this way: . . . • A sentence is “cruel and unusual punishment” under s 12 of the Charter if it is grossly disproportionate to the sentence that is appropriate given the nature of the offence and the circumstances of the offender ( Nur at para 39 ).

This is a high bar – a sentence that is “merely excessive” is not cruel and unusual, but must be “so excessive as to outrage standards of decency” and “abhorrent or intolerable” to society ( Lloyd at para 24 ). • Deciding a challenge to a mandatory minimum sentencing provision involves a two-step analysis ( Nur at para 46 ; Lloyd at para 23 ). The court must perform this analysis both for the actual offender before the court and for reasonably foreseeable hypothetical offenders ( Nur at para 77 ; Lloyd at para 22 ): 1. The court must assess what is a proportionate sentence for the offence, absent the minimum.

The court need not fix the sentence or range at a specific point, especially for hypothetical offenders, but the court should consider the rough scale of the appropriate sentence ( Lloyd at para 23 ). 2. Having done so, the court must ask whether the mandatory minimum will require the imposition of a grossly disproportionate sentence ( Lloyd at para 23 ). . . . . • If a mandatory minimum sentence is grossly disproportionate and violates s 12, it will be difficult to show that the provision is justified under s 1 of the Charter . . . . C . Mr.

Ookowt’s sentence is disproportionate and demonstrably unfit [ 37 ] In our view, the sentencing judge underemphasized Mr. Ookowt’s high moral blameworthiness for this offence, and overemphasized intoxication, bullying and Gladue factors. As a result, the sentencing court failed to give sufficient weight to denunciation and deterrence in reaching a sentence that was ultimately disproportionate and unfit in all of the circumstances.

a) Seriousness of the offence

[ 38 ]

Section 244.2 captures conduct involving the offender’s “intentional discharge of a firearm and knowledge or recklessness as to the presence of a person in the place fired upon”: Oud at para 33 . [ 39 ] Before Mr. Ookowt fired his rifle into Kenneth Arngna’naaq’s home, he did not take steps to determine whether anyone was inside the residence, nor did the sentencing judge find that his decision to shoot into a residence was in any sense justified or proportionate to the reasons Mr. Ookowt gave about why he committed the offence. It is clear, however, that when the shot was fired, Mr.

Ookowt was intoxicated and had been for much of that day, in breach of an undertaking that he abstain from consuming alcohol. [ 40 ] When the assault by Arnold ended, Mr. Ookowt was heard to say that he was going to return with a gun. He did so. Mr. Ookowt went home, unlocked the .250 calibre rifle from the gun safe, took a bullet, loaded the gun, and walked back to the Arngna’naaq house. Positioning himself on a hill behind the home before taking aim, he fired the bullet into the house, hitting his intended target, one of the residence’s windows.

He said he fired at the house because he did not like the way Arnold had jumped him, and he was not going to get bullied like that anymore. [ 41 ] We accept the Crown’s submission that firearm-related offences are of the utmost gravity. Further, the mens rea requirement in s 244.2 of intentionally discharging a firearm with knowledge or recklessness as to whether others are present, speaks to high moral blameworthiness. Denunciation and deterrence are paramount considerations on sentence, and factors personal to the offender are to be given less weight.

As was observed in R v Nur , 2013 ONCA 677 at para 107 : “Mitigating factors personal to a particular accused necessarily [take] on a less significant role when fixing the appropriate penalty” for a firearm-related offence. Further, as found in McMillan at para 20 , “. . . when denunciation and general deterrence are the paramount sentencing considerations, the primary focus is on the offender’s conduct (. . . discharging a firearm into a home), not the particular circumstances of the offender (victim of bullying).

While personal factors remain relevant, they are to be given less weight.” [ 42 ] Parliament intended to give primacy to denunciation and deterrence to address pressing and substantial concerns regarding firearm violence in Canada. However, despite recognizing that denunciation and deterrence were paramount, the deliberateness and gravity of this firearm offence, and the prevalence of this type of highly dangerous conduct in Nunavut, the sentencing judge failed to give sufficient weight to these factors.

As noted in Itturiligaq , per capita, gun violence in the North is 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). [ 43 ] Nunavut courts have placed particular emphasis on the seriousness of the use of firearms in committing violent offences, given the prevalence of firearms in the territory and their importance for subsistence hunting.

For example, in Geetah at para 135 , Sharkey J (as he then was) stated: It is a sad observation that firearms, once used only as a tool in the not too distant past, are now the first resort of choice as a weapon for a small but significant minority of frustrated and dysfunctional young men – young men unable to deal with jealousy, anger, or suicidal thoughts, and often driven by alcohol. [ 44 ] Mr. Ookowt very easily could have killed someone, namely Kenneth Arngna’naaq, and it was a matter of pure luck that he did not. As noted in Morrissey at para 53 : “There is no room for error when a trigger is pulled.

If the gun is loaded, there is a sufficient probability that any person in the line of fire could be killed”. We conclude that the sentencing judge did not meaningfully consider the gravity of Mr. Ookowt’s offence in this regard; the mandatory minimum penalty under s 244.2(3)(

b) aptly addresses that gravity. [ 45 ] Further, the sentencing judge did not provide any persuasive reasons for imposing a sentence that did not address the well- established seriousness of this firearm offence.

The failure to do so was an error: see for example R v Mala , 2018 NUCA 2 at para 22 , wherein this Court held the trial judge erred in failing to provide an analysis showing how the primary principles of denunciation and deterrence could be achieved by the sentence imposed. [ 46 ] In sum, an offender who commits the offence of intentionally discharging a firearm into a place, knowing or being reckless as to whether anyone is in that place, is guilty of significant morally blameworthy conduct. “There is an extremely high degree of moral culpability underlying this offence.

That is why this crime carries a minimum gaol term of 4 years”: Utye at para 32 .

b) Background and personal characteristics of Mr. Ookowt [ 47 ] In mitigation of sentence, Mr. Ookowt pleaded guilty which demonstrated his acceptance of responsibility and evidenced remorse to some degree. Also mitigating was Mr. Ookowt’s young age and lack of a criminal record. [ 48 ] The sentencing judge also focused on four specific factors in determining that Mr. Ookowt was lower down the scale of moral blameworthiness than others similarly charged in Nunavut:

a) intoxication;

b) Gladue considerations;

c) the firing of only one shot; and,

d) his reports of being bullied. In our view, the sentencing judge overemphasized these factors and their overemphasis had a material impact on sentence. [ 49 ] The sentencing judge found that the assault by Arnold, coupled with the prior bullying and Mr. Ookowt’s level of intoxication “tripped the switch in his brain that he had to send a message to Arnold by firing the shot”. He went on to conclude that Mr.

Ookowt was “a good candidate for rehabilitation and can build on the work he has started” while in custody; the sentencing judge further held he could “take into account the Gladue factors to temper the usual deterrent sentence for this type of crime”. Those Gladue factors were found to include that the appellant appeared to have developed the same alcohol abuse problem as his father, which became “accelerated when he tried to deal with the painful feelings caused when his best friend committed suicide. Alcohol abuse was a major factor in this

shooting”: Decision at paras 75, 80.

i) In the context of violent crimes, intoxication rarely diminishes moral culpability and is not mitigating [50] While the sentencing judge stated that intoxication was one factor that diminished Mr. Ookowt’s moral blameworthiness, hefailed to explain why intoxication put Mr. Ookowt “lower down the scale of blameworthiness than the accused persons in other Nunavutcases”: Decision at para 70. [51] Alcohol abuse was a factor in most comparable cases in Nunavut where sentences of four years or more were imposed uponoffenders for whom Gladue considerations applied.

For example in Lyta, the 22 year old Inuk offender was intoxicated and suicidalwhen he intentionally discharged his rifle into a duplex in Kimmirut; after appeal he received a sentence of five years. In Utye, the 21year old Inuk offender was intoxicated when he fired into an RCMP detachment; he received a seven year sentence. In Mikijuk, the 28year old Inuk offender was intoxicated and suicidal when he fired his rifle out of his house in the community of Iqaluit (contrary to s244.1(1)(b)); after appeal he received a sentence of four years.

In Josephee (unreported, 2010 NUCJ 8 , 2010 NUCJ, File Nos08-08-299;08-09-418), the 21 year old Inuk offender was intoxicated when he fired his rifle in the direction of police (contrary to s244(1)(b)); a six year global sentence was imposed. While Itturiligaq may be an exception in that the accused was sober when he shot arifle at an occupied house after a fight with his girlfriend, the conduct was still the result of a young man addressing a personal conflictwith firearm violence; after appeal, a four year sentence was deemed fit and proportionate.

It is difficult to conceive how anycircumstances, including intoxication, could lessen the moral blameworthiness of an offender who resorts to such violence. [52] We note that in none of these cases did the offender’s intoxication, youth, or Indigenous status or upbringing in Nunavut serveto substantially reduce their moral blameworthiness so as to justify a sentence below the mandatory minimum. The highly dangerouscriminal conduct in this matter occurred after Mr. Ookowt consumed copious amounts of alcohol while prohibited.

He neverthelesspurposely retrieved the rifle, knew his target was a residence, and was “not so intoxicated that he was unable to load, aim and fire therifle with fair precision on the target”: Decision at para 45. While it is clear that both the sentencing judge and Mr.

Ookowt seemed toplace much of the blame for his behaviour on his consumption of alcohol, intoxication was not a mitigating factor in this matter and wasoveremphasized by the sentencing judge. [53] In Clayton Ruby et al, Sentencing, 8th ed (Markham: Lexis Nexis, 2012) at 296, the authors summarize the effect ofintoxication in the sentencing process as follows: The cases do not suggest that intoxication or addiction are an excuse for crime, but they are a circumstance to be taken into accountsometimes in aggravation, sometimes in mitigation in assessing sentence.

A person under the influence of liquor, who is otherwise of blameless reputation, may do something quite out of character, and the liquormay be both an explanation and a factor in mitigation. In such cases, lenient treatment may be justified in anticipation of rehabilitation.However, some persons become more dangerous while under the influence of intoxicants, and the penalty may reflect thatdangerousness.

And further at 298: However, in crimes involving violence, the use of alcohol may be treated as an aggravating factor or, at best, a neutral one. [Emphasisadded] [54] This offence involved intentionally firing a shotgun at a residence while the offender was intoxicated and under a legalundertaking not to consume alcohol, the breach of which was clearly aggravating. Mr. Ookowt’s actions make clear, as did those of thesimilarly intoxicated offenders in Lyta, Utye, Mikijuk, and Josephee, that his intoxication led to extremely dangerous and life-threatening conduct. We conclude that Mr.

Ookowt’s intoxication, at best, was a relevant but neutral factor. ii) Firing one shot, rather than multiples shots, does not lower moral culpability and is not mitigating. [55] The sentencing judge also erred in determining that as Mr. Ookowt only fired a single shot, his moral blameworthiness waslowered as compared to other s 244.2 cases. The absence of multiple shots is at best, the absence of an aggravating factor and cannotmitigate sentence.

Regardless, the first shot fired at a residence may often be the most serious because it risks the lives and safety of theunsuspecting occupants who have no time to react or take cover. Again, whether one shot or multiple shots are fired, as the SupremeCourt noted in Morrissey, there is simply no room for error once the trigger is pulled.

Similarly, it only takes a single shot to strip theoccupant of the targeted residence of all sense of safety and security in their own home. [56] In any event, and as was similarly found in Itturiligaq, firing only one shot at a residence does not reduce an offender’s moralblameworthiness so as to reduce a fit and proper sentence in the range of four years, to two years less a day. Notably in Josephee, theoffender fired only one shot but was nonetheless sentenced to 62 months, having been convicted, inter alia, under s 244.2(1)(b). [57] Mr.

Ookowt’s single shot involved planning and premeditation, which is also aggravating: see Utye at para 12; Itturiligaq atpara 60. As analogously found in both of those cases, it took time for Mr. Ookowt to walk home, gather his father’s .250 rifle andammunition, and walk to the firing location on the hill. There was time for Mr. Ookowt’s “anxious[ness] and upset and fear[] for hissecurity” to ease, and time for him to reconsider. He did not. [58] In his statement to police and his affidavit at the sentencing hearing, Mr. Ookowt stated that he believed Arnold lived in theresidence.

While the sentencing judge found Mr. Ookowt “did not intend to harm anyone and was not aware if anyone was in thehouse”, these statements were nevertheless an acknowledgement by Mr. Ookowt that there was a reasonable possibility the residencewas occupied by another person when he shot into it. [59] Further, given that Mr. Ookowt has been hunting since the age of six, he was more than aware of the destructive power a rifle

can have, even when just one shot is fired. In Josephee at 7, Browne J (then of the NUCJ) held that the offender’s experience as a hunter was aggravating in the context of misusing and discharging a firearm at police officers when intoxicated: In Nunavut we know that guns are common. Guns are used for hunting animals. Guns are never to be used in anger or towards human beings. This is a well-known principle and governs many, many people’s lives and for many people in Nunavut guns are an important part of their lifestyle and the culture.

So when we have someone who abuses or misuses weapons in the kind of way that we heard about in this case, it’s very serious because particularly when this young man is abusing a gun, and he is a hunter . . . he has abused the privilege of having firearms for hunting and it may come eventually that guns are not readily available for hunting as they are now because people misuse the privilege of having firearms. . . . [Emphasis added] iii) Bullying does not diminish the moral culpability of discharging a firearm into a residence and is not mitigating [ 60 ] To the extent that the sentencing judge relied on Mr.

Ookowt’s reports of being bullied as lowering his moral blameworthiness, we are persuaded by the Crown’s assertion that in all of the circumstances, the evidence did not establish bullying of such severity as to significantly reduce Mr. Ookowt’s moral blameworthiness, if at all. [ 61 ] The circumstances are that Mr. Ookowt deliberately shot into the home well after his physical separation from Arnold, not knowing who may have been inside and in consequence of which, significantly risking Mr. Kenneth Arngna’naaq’s life. This was

an act of firearm violence completely disproportionate to Mr. Ookowt’s experiences of being assaulted that night, or being bullied earlier by Arnold. It is evident from his police interview, that even Mr. Ookowt knew that his actions were extreme; he told police that he shot into the Arngna’naaq’s residence and at the window because he wanted Arnold to “know that I don’t fuck around”. [ 62 ] In his later affidavit, sworn on January 28, 2017, Mr.

Ookowt stated: “While I did shoot one round into Arnold Arngna’naaq’s side window of his house, I did so only to warn him that I would no longer tolerate his harassment . . . Moreover, I was not aware of anyone else being in the house with Arnold Arngna’naaq when I fired the shot into the side window”. Mr.

Ookowt’s statements that he “experienced heightened anxiety and fear for my security”, as accepted by the sentencing judge, do not lessen his moral culpability for this extremely dangerous offence. [ 63 ] In our view, the sentence judge fell into the same error identified in McMillan at paras 20-30 : Bullying is a form of intimidation and abuse. There can be no denying that the accused was the victim of bullying and that the bullying was the motivating factor for his crime.

But again, when denunciation and general deterrence are the paramount sentencing considerations, the primary focus is on the offender’s conduct (. . . discharging a firearm into a home), not the particular circumstances of the offender (victim of bullying). While personal factors remain relevant, they are to be given less weight. In the case at hand, a fair reading of the reasons shows that the sentencing judge’s attention was focussed more on the accused’s personal factors than on the offending conduct. . . .

The uncontested fact before the sentencing judge was that the accused’s crime was motivated by, and in retaliation for, the bullying he suffered. An accused’s motive to commit the crime can, depending on the circumstances, be a mitigating, aggravating or neutral factor. See Clayton C. Ruby, Gerald J. Chan & Nader R. Hasan, Sentencing , 8th ed (Markham: LexisNexis, 2012) at para 5.49, where examples of crimes motivated by personal factors of a temporary nature (and generally viewed as mitigating) are set out.

On the other hand, as the authors also point out, the more serious the crime, the less such a factor will serve to mitigate the sentence. . . In my view, the sentencing judge greatly overemphasized the effect of bullying as a mitigating factor and, by doing so, he underemphasized the accused’s high degree of moral blameworthiness. While the accused’s victimization resulting from the bullying was a relevant consideration, it had little if any mitigating value in the circumstances for the two reasons that follow. First, the accused’s actions were not a sudden or spontaneous “lashing out” (at para 46) to

an act of bullying. . . . They were highly premeditated. In the middle of the night, just prior to the shooting, he had told a friend that he was “going to go do his business”. . . after obtaining a loaded rifle and 18 live rounds, he walked through town to his target’s home. He then proceeded to open fire on the home . . . His actions were anything but impulsive. Second, and more importantly, the accused’s act of extreme premeditated violence is completely disproportionate to any reasonable and measured response to the bullying he suffered.

The accused’s conduct could have inflicted life-threatening injuries had one of the bullets hit one of the occupants of the home. It was not a proportionate response to the harm he had experienced. As a result, I am of the view that the accused’s motive has little, if any, mitigating value because of the premeditated and very serious nature of the crime he committed. [ 64 ] Mr.

Ookowt’s admitted act of “extreme premeditated violence is completely disproportionate to any reasonable and measured response to the bullying he suffered”; it was sheer luck that his bullet did not hit and kill either Arnold, the target of his “warning”, or Kenneth Arngna’naaq. He shot at a window, ensuring the bullet would enter the home, because he thought Arnold was in the house. Moreover, as stated in Utye at paras 30-31 , when an offender knows someone is in the place being fired into, it offends common sense to conclude the offender did not intend to harm anybody. It is similarly implicit in Mr.

Ookowt’s sworn evidence and his guilty plea, that he was conscious of the risk to life and limb when he pulled the trigger and deliberately took a chance: Utye at para 30 . Again, it was simply luck, not any planning on Mr. Ookowt’s part, that life and limb were not lost in this case. [ 65 ] Mr. Ookowt’s stated motive had little, if any, mitigating value because of the retaliatory, premeditated and very serious nature

of the crime he committed, as was similarly found in McMillan at paras 25-26 . Further, we fully endorse what was said by the Court in Oud at para 39 : In the context of the harm addressed . . . , there is no room for recklessly discharging a firearm in the service of . . . self-help for bullying, just as there is no room for vigilantism ... intentionally shooting at an occupied building is

an act of extreme violence which [is] completely disproportionate to the wrong ... suffered from bullying. See also McMillan at para 32 ; Utye at para 12 . [ 66 ] While the sentencing judge acknowledged McMillan made clear that bullying “has little mitigating effect on the sentence”, it is apparent that he nonetheless considered what evidence there was of bullying to be sufficiently mitigating, together with Mr. Ookowt’s intoxication and Gladue factors, to warrant significant reduction in sentence. In these circumstances, it is not. iv) Gladue considerations do not significantly reduce Mr.

Ookowt’s moral blameworthiness [ 67 ] In all cases involving an Indigenous offender, the “courts must consider all of the circumstances of that offender, including the unique circumstances described in Gladue ”: Ipeelee at para 86 . Further, in order to achieve a proportionate sentence, a robust application of Gladue factors is necessary to assess the moral blameworthiness of the offender: R v Swampy , 2017 ABCA 134 at paras 25-26 , 29, 347 CCC (3d) 505 [ Swampy ] .

The offender’s moral blameworthiness must then be considered together with the gravity of the offence to arrive at a proportionate sentence. [ 68 ] As reiterated in Swampy at para 26 , “[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 para 18 . [ 69 ] Ipeelee at para 60 , made c lear that systemic and background factors do not on their own mitigate sentence by indicating lower blameworthiness; rather, these factors provide context to evaluate blameworthiness: To be clear, courts must take judicial notice of such matters as 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 matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel. [ 70 ] In this case, the sentencing judge found that Mr. Ookowt appeared to be falling into the same problem with alcoholism as his father; a problem which became even more serious following the suicide of his friend.

Alcoholism and suicide are two of the legacies of colonialism, and sadly remain unique systemic and background factors faced by far too many Indigenous offenders in the remote North, including Mr. Ookowt. [ 71 ] The sentencing judge found he could “take into account [Mr. Ookowt’s] Gladue factors to temper the usual deterrence sentence for this type of crime”, immediately following which he determined that a sentence of two years less a day would be appropriate.

However, he failed to explain why a sentence far below the mandatory minimum sentence of four years, and that imposed on other Nunavut offenders who committed similar criminal conduct, would meet the paramount need for denunciation and deterrence in this matter. He also failed to state why such a lower sentence would be responsive to the “needs, experiences, and perspectives of Aboriginal people and their communities”: Ipeelee at para 74 .

The people of Nunavut, like people everywhere else in Canada, are entitled to be protected by the law and are entitled to be safe in their homes and communities, free from firearm-related gun violence. [ 72 ] As stated by the sentencing judge at para 74 of the Decision: The pre-sentence report indicates that in many ways Mr. Ookowt had a better upbringing than many young Inuit who have appeared before me over the years. . . [He] was raised in a good family home structure and had participated in traditional hunting with his father from an early age. He continues to practice a hunting lifestyle.

He is a skilled hunter and provides food to his family and other elders in the community. He also generates money from the sale of furs. In fact, he left Grade 11 or 12 to pursue this lifestyle and has been very helpful to his family and the community. [ 73 ] The trial judge found Mr. Ookowt did not have a disadvantaged upbringing, nor does there appear to be a history of family violence, displacement, residential schooling or “constrained circumstances”: Ipeelee at para 73 . Rather, Mr.

Ookowt enjoyed a culture- centred and close family upbringing throughout his life; he is both intelligent and educated, communicating in both English (written and oral) and Inuktitut (oral). He opted to leave formal schooling to pursue his vocation as a traditional hunter, earning a living from the land by selling furs and supporting his family and community with the country food he harvested, and by keeping their machines and dog teams in good order.

While a history of colonialism must be taken into account, including substance abuse and suicide in this matter, it is difficult to identify any background factors that greatly diminish Mr. Ookowt’s moral blameworthiness for this serious firearm offence, at least to the extent found by the sentence judge to “temper the usual deterrence sentence” by more than two years. [ 74 ] Simply put, the sentence imposed in this matter was disproportionate and unfit in respect of both the circumstances of the offence, and the offender. [ 75 ] In our view, Mr.

Ookowt’s conduct stemmed from a wrong-headed motive of retaliation or revenge for being bullied; the result was a serious premeditated offence of firearm violence which but for luck and mere inches, almost cost Kenneth Arngna’naaq grave injury or death. When violence is the result of such motives, when an offender takes matters into their own hands by dealing with a personal problem by firing a gun at a residence, the need for a denunciatory and deterrent sentence is paramount. That need was not met

here by the imposition of a territorial sentence. D. What is a fit sentence for Mr. Ookowt? [ 76 ] A sentence proportionate to the gravity of this offence and Mr. Ookowt’s moral blameworthiness would be in the range of four years’ imprisonment in a penitentiary. Persuasive case law supports this conclusion, including the Nunavut cases discussed above, Lyta , Utye , Mikijuk , Josephee , and Itturiligaq , as well as Oud (4 years) and MacMillan (4 years) . [ 77 ] As is stated in Oud and echoed in this Court’s decision in Itturiligaq , anything less than a penitentiary sentence in this matter sends the wrong message.

Further, the four year mandatory minimum sentence is a reflection of the serious risk that firing bullets into occupied places or buildings can have. That risk here was the real possibility that Kenneth Arngna’naaq might have suffered grave injury or death. [ 78 ] In another similar case, R v Brandon Wyatt Sutherland , 2015 NSSC 354 , the 19 year old offender was intoxicated at the time he fired a single shot through the sleeping victim’s bedroom window, hitting the wall directly above the victim’s bed.

The accused had gone in search of the victim’s residence with the firearm, after the victim had attended the offender’s house the day before armed with a bat over a drug-related matter; the victim was injured by the bat and another weapon that night and sought treatment in hospital.

At sentencing, the offender was found to be a good candidate for rehabilitation having entered an early guilty plea, was remorseful, had no criminal record, and had completed programming while in custody awaiting sentencing; aggravating was the fact that the shooting was premediated and committed while the accused was on bail for an impaired driving offence. In sentencing the accused to the five year mandatory minimum as a prohibited weapon was employed, the Court found at para 23: Mr. Sutherland has a high degree of moral culpability for his actions.

Following an altercation from the previous evening he chose to travel to the victim’s residence at night and fire through the victim’s window with a sawed-off shotgun. The public must be protected from people who decide to settle differences with guns. Law abiding citizens expect a sentence that demonstrates the courts strong condemnation of gun violence. [ 79 ] The need for denunciation and deterrence in these types of matters is equally, if not more important in Nunavut than in other Canadian jurisdictions. Hunting rifles are prevalent in Nunavut, and resorted to far too often for violent purposes. [ 80 ] Mr.

Ookowt is young, entered a guilty plea and had no criminal record. While his intoxication and the assault and bullying he suffered at the hands Arnold are relevant in explaining what motivated him to fire the rifle, these factors cannot justify this offence and his moral blameworthiness remains high. The seriousness of an offence under s 244.2(1)(a), and its premeditated nature in this case which led Mr. Ookowt to shoot through a window of what he believed to be his target’s home, necessitates that the focus must be on Mr.

Ookowt’s offending behaviour; personal factors must necessarily take on a lesser role: Oud at para 65 . As a result, Parliament’s deterrent mandatory minimum sentence of four years is not a grossly disproportionate sentence for this offence or this offender; it is not “so excessive as to outrage the standards of decency”: Lloyd at para 24 . [ 81 ] In light of this conclusion, we do not find that the four year mandatory minimum would be cruel and unusual punishment as going beyond what is necessary to achieve a valid penological goal in this matter.

We conclude, as did McMillan , that a fit and proportionate sentence for Mr. Ookowt would be in the range of four years’ imprisonment. E. Reasonable foreseeable hypotheticals [ 82 ] The recent case of R v Newborn , 2020 ABCA 120 at para 45 [ Newborn ], summarized the following principles applicable to determining whether a proposed hypothetical offender is “reasonable” when assessing gross disproportionality of a mandatory minimum sentence.

Those principles include: • The reasonable hypothetical offender must demonstrate circumstances that may reasonably arise ( Nur at para 68 ). • What is “reasonable” is grounded in judicial experience and common sense ( Nur at para 62 ). • Fanciful, far-fetched, or remote hypotheticals are not reasonable ( Nur at paras 62, 68 ; Goltz at 506). • A reasonable hypothetical offender may have personal characteristics relevant to people who may be caught by the mandatory minimum ( Nur at para 76 ). • Reported cases illustrate the range of real-life conduct captured by the offence and can be used to inform what is reasonable ( Nur at para 72 ). [ 83 ] As Newborn states at para 49 : “. . .the reasonable hypothetical inquiry that exists in the case law ‘excludes using personal features to construct the most innocent and sympathetic case imaginable’: Nur at para 75 ”, and the logic of the gross disproportionality analysis requires a court to compare only sentences for convictions for the same offence; see also EJB .

Further, as found by the Court in Oud at para 32 :

Unlike the hypothetical offenders contemplated in Nur and Lloyd respectively, s 244.2 does not apply to near-regulatory offences orcapture, in the words of Lloyd at para. 28, ‘a large number of situations, varying greatly in an offender’s blameworthiness’. Myconclusion is rooted in the specific language of s. 244.2 which is directed with particularity to certain narrow actions, and the gravity ofthat conduct. [84] While Mr. Ookowt provided hypotheticals to the sentencing judge, none of those were commented upon in the decisionbelow. The hypotheticals were again raised before this Court, and Mr.

Ookowt has also provided a new hypothetical on appeal. In ourview however, none of these hypotheticals would render the four year mandatory minimum grossly disproportionate to the offence or theoffender. [85] In the first hypothetical presented below, the offender fires a gun at a residence as a prank. Such conduct is clearly andreasonably within the “narrow actions” caught by s 244.2, however the gravity of that conduct is not lessened because the offender’smotive was a meant to be a prank.

Such a motive, coupled with the intention to discharge a weapon at a residence knowing or beingreckless as to whether another person is in the residence, falls directly into the type of dangerous conduct the mandatory minimum ismeant to address. As stated by the Supreme Court of Canada in Morrissey at para 53: Perhaps the most egregious hypotheticals reviewed are individuals playing with guns. Firearms are not toys. There is no room for errorwhen a trigger is pulled. If the gun is loaded, there is a sufficient probability that any person in the line of fire could be killed.

The needfor general deterrence is as great (if not greater) for the hypothetical offenders playing with guns as it is for people such as the [accused]. [86] In the second hypothetical, an offender who has “mental problems fires a gun at a residence at least in part because of hismental problems.” As the Crown noted, an offender in such circumstances has resort to a defence of mental disorder if on a balance ofprobabilities, the act was committed “while suffering from a mental disorder that rendered the person incapable of appreciating thenature and quality of the act. . . or of knowing that it was wrong”: s 16 of the Criminal Code. [87] In all cases, the Crown is required to prove the necessary mens rea for the offence beyond a reasonable doubt; namely, thatthe offender intended to discharge the firearm into or at a place knowing that or being reckless as to whether another person is present.Where those elements are proven, the seriousness of the offence remains grave even if committed by an offender who is under somemental stress or anxiety at the time.

This case is one such example; Mr. Ookowt was under the mental stress and anxiety of just havingbeen assaulted by a long-time bully when committing the offence; the sentencing judge describing it as: “tripped the switch in [Mr.Ookowt’s] brain that he had to send a message to Arnold by firing a shot”. But intentionally firing a rifle at a residence is neither a lawfulmeans to send a message, nor an acceptable outlet for mental distress. [88] The Crown also provides the case of R v Crockwell, 2013 NLTD(G) 23 [Crockwell].

There, while the sentencing judge heldthat undiagnosed mental health issues mitigated the seriousness of the offender’s conduct, the gravity of the offences, including a s 244.4offence, was such that the mandatory minimum was not grossly disproportionate: Crockwell at paras 34-40, 56. [89] In the third hypothetical, the offender is an abused spouse who after years of abuse lashes out and fires a gun into the spouse’sresidence. If the offender successfully invokes a defence pursuant to R v Lavallee, (SCC), [1990] 1 SCR 852, 55 CCC(3d) 97, the result will be acquittal and no criminal liability.

However, where an offender is convicted under s 244.2(1)(a), by reason ofacting in a context other than a reasonable apprehension of death or grievous harm, it cannot justify intentionally discharging a firearminto a residence; nor does it reduce the offender’s moral culpability to the degree of rendering the mandatory minimum grosslydisproportionate, abhorrent or intolerable. [90] Mr. Ookowt raises a further hypothetical on appeal: A chronically abused woman returns home to find that her abusive husband has barricaded the door, is drinking and her children areinside.

She shoots through the front door in an attempt to enter. At trial she argues a Lavallee-type defence. That being – chronic abuseled her to believe that harm to the children was reasonable. The trial judge rejects her defence of another based on lack of imminentharm, and finds that it would have been reasonable for her to summon the police. She is found guilty, but the trial judge determines thather moral blameworthiness is low and her actions were brought on by panic and informed by her previous abuse. [91] Again, this hypothetical must fail.

Beyond raising significant concerns that this hypothetical is far-fetched in that to protect herchildren, the offender would shoot at the door of a place while her children are inside and may be struck, the offender’s moralblameworthiness in this scenario remains high. In intentionally discharging the firearm at the residence, the offender is not merelyreckless about whether there are persons inside the residence; the offender knows there are children inside and there is a risk a bullet willstrike a child.

The use of a firearm is never the answer to a domestic dispute, but particularly in situations which risk the most innocent ofvictims – children. There is simply no room for the self-help envisioned in this scenario, which remains an extremely dangerous actcompletely disproportionate to momentary panic or the wrong the offender suffered from past abuse. [92] Finally, the Crown referenced the cases of R v Kakfwi, 2018 NWTSC 13 and R v Cardinal, 2018 NWTSC 12, in which thefour year mandatory minimum for offences contrary to s 244.2(1)(

b) was struck down on the same hypothetical by Chief JusticeCharbonneau. As the circumstances and the hypothetical in those cases involve a different offence, intentionally discharging a firearmwhile reckless as to the life or safety of another person, it is not a reasonable example pertaining to the precise provision challenged inthis matter: see Goltz at 519.

Regardless, in the Kakfwi/Cardinal hypothetical of a young, intoxicated, despondent Indigenous offender,with a loaded rifle under his chin and in the act of pulling the trigger, thwarted in his attempt to commit suicide by having the rifleknocked away, the innocence of the accused remains debateable.

Whether the consequential discharge that puts a bullet through anexterior wall of the house would ever satisfy beyond a reasonable doubt either the actus reus or mens rea requirements for intentionallydischarging a weapon into or at a place while knowing or being reckless as to whether others are present, is questionable. This is not areasonable hypothetical under s 244.2(1)(a). VI. Conclusion

[ 93 ] In retaliatory reaction to being assaulted and bullied, Mr. Ookowt fired a rifle into a home knowing that or being reckless as to whether another person was present in the place. Considering both the offence and the offender, we conclude that the sentence of two years less a day imposed by the sentencing judge was disproportionate, unfit and failed to meet the need for denunciation and deterrence in this matter. We further conclude that the four year mandatory minimum sentence under s 244(3)(

b) is not grossly disproportionate in all of the circumstances; nor do the reasonable hypotheticals raised establish gross disproportionality under the second stage of the Nur test. [ 94 ] Accordingly, the Crown’s appeal is allowed. The declaration of unconstitutionality of s 244.2(3)(

b) and the sentence imposed by the sentencing judge is set aside, and a four-year penitentiary term is substituted. [ 95 ] However, given the significant period of time that has elapsed since Mr. Ookowt was sentenced in September of 2017, and given that he has now finished his sentence, we stay the service of the sentence of imprisonment. 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: Janna Hyman for the Appellant Scott Cowan for the Respondent