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Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE


Cour de justice du Nunavut

Citation: R. v. Itturiligaq, 2018 NUCJ 31


Date: 20180911
Docket: 09-18-3
Registry: Iqaluit

Crown: Her Majesty the Queen


-and-

Accused: Simeonie Itturiligaq

________________________________________________________________________

Before: The Honourable Mr. Justice Paul Bychok

Counsel (Crown): Philippe Plourde


Counsel (Accused): Lana Walker

Location Heard: Iqaluit, Nunavut


Date Heard: October 9, 2018
Matters: Mandatory minimum penalty in Criminal Code, RSC 1985,
c C-46, section 244.2(3)(b) found to be cruel and unusual
punishment contrary to s. 12 of Charter. R v Gladue,
[1999] 1 SCR 688, [1999] SCJ No 19, sentencing
principles and mandatory minimum penalties.

REASONS FOR JUDGMENT


(Delivered Orally)

(NOTE: This document may have been edited for publication)


2

TABLE OF CONTENTS
I. OVERVIEW ............................................................................................................... 4
II. FACTS ........................................................................................................................ 4
III. THE LAW ........................................................................................................... 5
A. Intentionally discharging a firearm ..................................................................... 5
B. Cruel and unusual punishment ............................................................................ 6
C. Sentencing Aboriginal offenders and Gladue principles .................................... 6
D. R v Nur ................................................................................................................ 8
i. The first branch of Nur – objectives and principles of sentencing ............... 8
ii. The second branch of Nur – gross disproportionality ............................. 10
IV. POSITION OF THE PARTIES ........................................................................ 10
A. The Respondent Crown..................................................................................... 10
i. The gravity of the offence ........................................................................... 11
ii. Circumstances of the offender and the offence ....................................... 11
iii. Actual anticipated effect of the sentence on the offender ....................... 11
iv. Penological goals and relevant sentencing principles ............................. 11
v. Valid alternatives to the punishment imposed ........................................ 12
vi. Sentences for other crimes in Nunavut ................................................... 12
B. The Applicant Defendant .................................................................................. 12
i. The gravity of the offence ........................................................................... 12
ii. Circumstances of the offender and offence ............................................. 13
iii. Actual anticipated effect of the sentence on the accused ........................ 13
iv. Penological goals and relevant sentencing principles ............................. 14
V. ISSUES ..................................................................................................................... 14
VI. ANALYSIS ....................................................................................................... 15
A. What is the proportionate sentence for this offender in these circumstances? . 15
i. The significance of Gladue ......................................................................... 15
ii. Gravity of the offence ............................................................................. 18
iii. Circumstances of the offender and the offence ....................................... 18
a. Aggravating factors ............................................................................. 18
b. Mitigating factors ................................................................................ 19
c. Criminal Records ................................................................................. 19
d. The Canadian Victims’ Bill of Rights .................................................. 20
e. Mr. Itturiligaq ...................................................................................... 20
3

iv. Actual anticipated effect of the sentence on the offender ....................... 22


v. Penological goals and the relevant principles of sentencing ................... 23
vi. Valid alternatives to incarceration........................................................... 24
vii. Sentences for other crimes in Nunavut ................................................... 24
viii. A proportionate sentence ..................................................................... 25
B. Gross disproportionality.................................................................................... 28
C. Charter Section 12 – Conclusion ...................................................................... 31
VII. CHARTER SECTION 1 .................................................................................... 31
A. The third branch of Nur – Is the MMP saved by section 1 of the Charter as a
demonstrably justified and reasonable limit in our free and democratic society? ........ 31
B. Charter section 1 – Conclusion ........................................................................ 31
VIII. SENTENCE ...................................................................................................... 32
4

I. OVERVIEW

[1] The accused, Simeonie Itturiligaq, is charged with firearm-related


offences, assault with a weapon and unlawful confinement arising
from an incident in Kimmirut in January 2018. On May 11th, he
pleaded guilty to intentionally discharging a firearm at a house
knowing that it was occupied.1 The Court ordered a Pre-sentence
Report. His sentence hearing was scheduled for October 5, 2018.

[2] This offence carries a mandatory four year minimum penitentiary


sentence.2 Mr. Itturiligaq has challenged the constitutionality of this
mandatory minimum penalty (MMP). He says the MMP constitutes
cruel and unusual punishment and violates his rights pursuant to s. 12
of the Canadian Charter of Rights and Freedoms (Charter).3

[3] This application highlights an extremely important and topical issue:


whether mandatory minimum penalties can be reconciled with the
Charter and Gladue principles.4

[4] Iqaluit was shut down by hurricane force winds on October 5th. I
heard the application on October 9th. These are my reasons for
judgment.

II. FACTS

[5] The facts are not in dispute.

[6] The accused’s girlfriend, Leesa Lyta, was visiting with friends at
house 207-D the evening of January 8, 2018. Sometime around
11:15 pm, the accused went to house 207-D. He was sober. He
repeatedly asked Ms. Lyta to go home with him. She refused to
leave. The accused told her he “could get worse” and he left.

[7] The accused went home where he retrieved a .243 calibre Remington
7600 rifle. He placed the rifle on his ski-doo and then returned to

1
Criminal Code, RSC 1985, c C-46 [Criminal Code], section 244.2.
2
Ibid, section 244.2(3)(b).
3
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].
4
R v Gladue, [1999] 1 S.C.R. 688, [1999] SCJ No 19 [Gladue].
5

house 207-D. Again, he continued to ask Ms. Lyta to come home.


Once again, she refused to leave.

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

[9] At approximately 11:45 pm, the police arrived at house 7-A. They
discovered the accused’s rifle behind the water tank. The rifle was
not loaded nor was it lawfully secured. The accused was arrested
and returned to the detachment. On arrest, the police discovered
one loaded and one partially loaded rifle magazines in the pocket of
the accused’s coat.

[10] Cst. Christopher Spiers interviewed the accused on January 10, 2018.
The accused confessed to the crimes. He took full responsibility for
his actions. He said he had been angry and upset with Ms. Lyta
because he felt she was not spending enough time with him and their
two-year-old daughter, Emma. He was angry that she had gone to
her friend’s place without telling him.

[11] The accused admitted that he had taken a shot at the house. He said
he aimed at the top of the house. He said he did not aim at anyone.
He admitted he knew that he was not allowed to aim a rifle at anyone.
He said he deliberately aimed at the top of the house.

III. THE LAW


A. Intentionally discharging a firearm

[12] The accused is charged with violating Criminal Code s. 244.2(1)(a)


which reads:

Every person commits an offence who intentionally discharges


a firearm into a place, knowing that or being reckless as to
whether another person is present in the place.

[13] The MMP for this offence is stated in s. 244.2(3)(b) and provides that
the accused “is liable to imprisonment of a term of not more than 14
6

years and to a minimum punishment of imprisonment for a term of


four years”. These Criminal Code ss. 244.2(1)(a) and 244.2(3)(b)
came into force in October 2009.

B. Cruel and unusual punishment

[14] As I have noted, the accused has challenged the constitutionally of


the MMP. Charter ss. 1, 12 and s. 52 of the Constitution Act 19825 are
relevant to my analysis. These provisions read as follows:

Section 1: The Canadian Charter of Rights and Freedoms


guarantees the rights and freedoms set out in it subject only to
such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society.

Section 12: Everyone has the right not to be subjected to any


cruel and unusual treatment or punishment.

Section 52: The Constitution of Canada is the supreme law of


Canada, and any law that is inconsistent with the provisions of
the Constitution is, to the extent of the inconsistency, of no
force or effect.

C. Sentencing Aboriginal offenders and Gladue principles

[15] In 1999, the Supreme Court of Canada issued a landmark decision: R


v Gladue. That decision provided guidance to Canadians as to how
Criminal Code s. 718.2, which pertains to sentencing Aboriginal
offenders, ought to be understood and applied. This section, enacted
in 1996, states:

718.2 A court that imposes a sentence shall also take into


consideration the following principles:

(e) all available sanctions other than imprisonment that are
reasonable in the circumstances should be considered for all
offenders, with particular attention to the circumstances of
aboriginal offenders”.6

5
Canada Act 1982 (UK), 1982, c 11 [Constitution Act 1982].
6
Criminal Code, supra note 1, s 718.2(e). This principle is also repeated in the Youth Criminal Justice Act,
SC 2002, c 1, s 38(2)(d).
7

[16] Jail in Canada is imposed as a last resort for all Canadians no matter
their ethnic origins.

[17] The Supreme Court of Canada reminded Canadians in Gladue that


Parliament had enacted s. 718.2(e) to address three pressing societal
concerns:

1. The over representation of Aboriginal people in


our penal facilities;

2. The presence of systemic racism in our justice


system; and

3. How traditional sentencing principles and


practices were failing properly to address the needs
and realities of our Aboriginal fellow citizens.

[18] Gladue does not say that Aboriginal offenders are to be given better
treatment than non-Aboriginal offenders. Gladue does not equate
with an Aboriginal sentencing discount. Nor must the judge draw a
causal link between systemic background issues and the offence.7
Gladue reinforces the constitutional duty of judges to take “judicial
notice of the systemic or background factors to sentencing which is
relevant to aboriginal offenders”.8 This is an imperative constitutional
and moral duty for judges of the Nunavut Court of Justice.

[19] The Nunavut Court of Justice is a Gladue court.9 Our Court must
account for the unique circumstances of Inuit, their culture and
society. If a sentence is to be considered just, it must be rooted in the
realities of the offender and our society. Gladue principles are the
lens through which we look at the circumstances of every case.
Gladue principles will be prominent in my analysis of the alleged
Charter breach of s. 12 in this case. I will say more about Gladue
principles shortly.

7
R v Ipeelee, 2012 SCC 13 para 83, [2012] 1 SCR 433 [Ipeelee].
8
Gladue, supra note 4 at paras 83 and 84.
9
Statistics Canada. 2017. Nunavut [Territory] and Canada [Country] (table). Census Profile. 2016 Census.
Statistics Canada Catalogue no. 98-316-X2016001. Ottawa. Released November 29, 2017.
https://www12.statcan.gc.ca/census-recensement/2016/dp-pd/prof/index.cfm?Lang=E (accessed October 9,
2018).
8

D. R v Nur

[20] The Supreme Court of Canada has set out the approach judges are to
take respecting allegations of a s. 12 Charter breach. The leading
case is R v Nur.10 Nur sets out a three-part test:

First, the court must determine what constitutes a proportionate


sentence for the offence having regard to the objectives and
principles of sentencing in the Criminal Code. Then, the court
must ask whether the mandatory minimum requires the judge
to impose a sentence that is grossly disproportionate to the fit
and proportionate sentence. If the answer is yes, the mandatory
minimum provision is inconsistent with s. 12 and will fall
unless justified under s. 1 of the Charter.11

[21] If the answer is no – that the MMP is an appropriate sentence for Mr.
Itturiligaq – then the Court in Nur directs the judge to consider another
issue: would it be reasonably foreseeable that the MMP would breach
the s. 12 of the Charter of other persons?12

i. The first branch of Nur – objectives and principles of


sentencing

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

[23] There are six key objectives in the sentencing process.

718. The fundamental purpose of sentencing is to contribute,


along with crime prevention initiatives, to respect for the law
and the maintenance of a just, peaceful and safe society by
imposing just sanctions that have one or more of the following
objectives:

(a) to denounce unlawful conduct;


(b) to deter the offender and other persons from committing
offences;
(c) to separate offenders from society where necessary;

10
R v Nur, 2015 SCC 15, [2015] 1 SCR773 [Nur].
11
Ibid at para 46.
12
Ibid at para 65.
9

(d) to assist in rehabilitating offenders;


(e) to provide reparations for harm done to victims or to the
community; and
(f) to promote a sense of responsibility in offenders, and
acknowledgement of the harm done to victims and to the
community.13

[24] In seeking to meet these objectives, Parliament has articulated a


guiding and “fundamental principle” which lies at the very heart of the
sentencing process.

A sentence must be proportionate to the gravity of the offence


and the degree of responsibility of the offender.14

[25] In plain language, a sentence must fit the crime and the offender.
This fundamental principle will be at the forefront of my decision.

[26] The Criminal Code also requires a judge to consider and apply other
sentencing principles.

[27] A just sentence must consider both aggravating and mitigating


circumstances.15 Aggravating factors serve to increase the sentence.
Mitigating factors serve to decrease the sentence. This requirement
highlights the extent to which we believe that a just sentence must
account for the circumstances of each individual case.

[28] A just sentence also requires a judge to impose similar sentences for
similar offences committed by similar offenders.16 We call this the
parity principle. That principle acknowledged, no two offences or
offenders are ever the same. This reality makes the task of crafting a
just individual sentence an art, and not a science.

[29] Where multiple offences are involved, a just sentence must not be
unduly long or harsh.17 We call this the totality principle.

[30] I have already mentioned s. 718.2(e). Jail is imposed as a last resort


in Canada18, with “particular attention to the circumstances of
Aboriginal offenders”.19

13
Criminal Code, supra note 1, s 718.
14
Ibid, s 718.1.
15
Ibid, s 718.2.
16
Ibid, s 718.2(b).
17
Ibid, s 718.2(c).
18
Ibid, s 718.2(d).
10

ii. The second branch of Nur – gross disproportionality

[31] The second branch of Nur requires the judge to determine whether
the MMP would be grossly disproportionate. The Supreme Court of
Canada in R v Morrisey has explained that this measure refers to
“punishment which is so excessive as to outrage our society’s sense
of decency”; punishment which would be “abhorrent or intolerable”. 20

[32] The Morrisey framework, followed in Nur, requires the judge to use a
six step analysis. The judge must consider:

1. The gravity of the offence;

2. The particular circumstances of the offence, and the personal


characteristics of the offender;

3. The actual anticipated effect of the sentence on the offender;

4. The penological goals and relevant principles of sentencing;

5. The availability of valid alternatives to the imposed


punishment; and

6. A comparison of sentences for other crimes in the same


jurisdiction.21

IV. POSITION OF THE PARTIES

[33] I will outline the positions of each party in reference to the Morrisey
framework.
A. The Respondent Crown

[34] The Crown urges the Court to impose the four year MMP which
would, by necessity, be served in a southern penitentiary.

19
Ibid, s 718.2(e).
20
R v Morrisey, 2009 SCC 39 at para 26, [2000] 2 SCR 90 [Morrisey].
21
Ibid at para 28.
11

i. The gravity of the offence

[35] The Crown asserts that firearm related offences are of “the utmost
seriousness and gravity”.22 The double mens rea requirement of
intention and knowledge means the accused has an elevated moral
blameworthiness.23

ii. Circumstances of the offender and the offence

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

iii. Actual anticipated effect of the sentence on the offender

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

iv. Penological goals and relevant sentencing principles

[38] The Crown says Parliament “is not compelled to enact sentencing
provisions which ‘simultaneously pursue all of the traditional
sentencing principles’”.25 Parliament intended to give “priority” to
denunciation and deterrence, including general deterrence to address
the “pressing and substantial concerns regarding the increase in
firearm violence in Canada.”26

22
Factum of the Respondent, filed September 26, 2018, at paras 21 to 23.
23
There are two aspects which make an act a criminal offence – the intention to commit the offence (mens
rea), and the physical act of carrying it out (actus reus). The double mens rea requirement refers first, to
the intention to discharge the fire arm and, second, knowledge that the targeted residence was occupied.
24
Ibid at para 24.
25
Ibid at para 30, citing Morrisey at para 46.
26
Ibid at paras 31 and 32.
12

v. Valid alternatives to the punishment imposed

[39] The Crown says jail is necessary. A conditional sentence is not


available.27

vi. Sentences for other crimes in Nunavut

[40] The Crown asserts that the accused would be liable to a “significant”
jail term even in the absence of the MMP. Crown Counsel says the
appropriate sentence is in the four year range because firearm related
offences are too common in Nunavut and they require “deterrent and
exemplary sentences”. This accused possesses a higher degree of
blameworthiness than other reported cases. This is so because it
was domestic violence and a deliberate act.28

B. The Applicant Defendant

[41] Defence Counsel urges the Court to strike down s. 244.2(3)(b) and to
impose a two year penitentiary term less credit for remand time
followed by probation for 18 months.

i. The gravity of the offence

[42] Defence Counsel acknowledges that firearm offences are “very


serious” and that deterrence and denunciation are “paramount”. She
notes that Parliament has emphasized that these offences are
“inherently dangerous and highly disruptive of the public peace”. This
offence is “graver” as it involved shooting at a home. 29

[43] Defence Counsel stated that the accused fired a single shot, he did
not intend to hurt anyone and no one was injured. She acknowledges
this offence requires a “stern” response for this “highly dangerous
behaviour”. She also acknowledges that greater blameworthiness
attaches to the accused because he knowingly broke the law.30

27
Criminal Code, supra note 1, s 742.1(e)(iii).
28
Factum of the Respondent, supra note 22 at paras 34 to 38.
29
Application Record on Constitutional Issue, filed August 28, 2018 at para 29 [Applicant’s Factum].
30
Ibid at para 30.
13

ii. Circumstances of the offender and offence

[44] Defence Counsel noted the offender is a 24-year-old Inuk who was
born and raised in Nunavut. Thus, the Court must apply the Gladue
framework.31 The offender has been in an on-again off-again
relationship with Ms. Lyta for four years. They have a two-year-old
daughter who lives with them. The accused had a traditional
upbringing. His Inuit culture and knowledge are said to be “very
important to him”. He hunts and fishes for country food for
sustenance, which he shares with family and community. 32 The
offender has completed several programs while on remand. He has
been a valuable participant in the Town Crew Program and Inuit
Cultural Skills Program. 33

[45] Concerning the offence, Defence Counsel acknowledged the offender


showed “extremely poor judgment” borne of “jealousy and frustration”.
She acknowledged the offender tried to “coerce” Ms. Lyta to leave
with him. The domestic context and the deliberate nature of the act
are further aggravating factors. Defence Counsel also distinguished
the facts from other Nunavut cases, noting that the offender was not
subject to any court orders at the time.34

[46] Defence Counsel highlighted several “significant” mitigating factors


including the offender’s early guilty plea. The offender confessed and
accepted responsibility for his actions. He has expressed remorse.
He has worked to better himself while on remand. These factors are,
she asserts, “strongly tied to the principle of rehabilitation”.35
iii. Actual anticipated effect of the sentence on the accused

[47] Defence Counsel asserts that the effect of the MMP would be
“severe”. Even after pre-sentence credit, the offender would have to
serve three years in a federal penitentiary. She said:

For a first-time, youthful offender from a small Inuit


community, who has had little exposure to life outside the
North, the actual effect of serving a sentence at a federal
penitentiary will be extreme. In practical terms, this means that
the Applicant will have to serve his sentence thousands of

31
Ibid at para 32.
32
Ibid at para 33 to 34.
33
Ibid at para 35.
34
Ibid at paras 36 to 39.
35
Ibid at para 40.
14

kilometers away from his family. This sentence will have a


severe impact on the Applicant who will presumably have no
physical access to his young child or other members of his
family during the duration of his stay at the penitentiary”.36

iv. Penological goals and relevant sentencing principles

[48] Defence Counsel reminded the Court that Gladue principles apply.
The Court must consider “systemic and background factors when
assessing the offender’s culpability and moral blameworthiness”.37
She asserts that the Court must show restraint. The offender has no
prior criminal record.

[49] Defence Counsel concluded that that the circumstances of this case
“present as less severe than most of the related cases from
Nunavut”.38

V. ISSUES

[50] This Charter application raises three issues.

1. What is the proportionate – just and fit – sentence


for this offender in these circumstances?

2. Is the MMP grossly disproportionate and in


violation of s. 12 of the Charter? and,

3. If the answer is yes, is the MMP saved by s. 1 of


the Charter as a demonstrably justified and
reasonable limit in our free and democratic society?

[51] For the following reasons, I rule that the MMP would be grossly
disproportionate in the circumstances of this case. The MMP clearly
violates the offender’s s. 12 Charter rights.

[52] The breach of s. 12 of the Charter is not saved by s. 1.

36
Ibid at para 43.
37
Ibid at para 40.
38
Ibid at para 57.
15

[53] Section 244.2(3)(b) is unconstitutional and of no force and effect


pursuant to Constitution Act 1982 s. 52.

VI. ANALYSIS

[54] My analysis of the first branch of the Nur test follows the Morrisey
framework.

A. What is the proportionate sentence for this offender in these


circumstances?

i. The significance of Gladue

[55] Before I embark on the Morrisey analysis, I must say a few more
words about Gladue and the centrality of Gladue principles in the
Nunavut Court of Justice.

[56] The constitutionality of s. 244.2(3)(b) has only been considered by


two higher courts: the Manitoba and British Columbia Courts of
Appeal. In each case, the Court ruled that the section is
constitutional. In doing so, the justices of each Court properly
reinforced Parliament’s emphasis of the seriousness of firearm
offences.39

[57] In his written submissions, Crown Counsel cited Saunders JA. in Oud
who wrote: “I cannot conceive of an offence under s. 244.2 for which
the mandatory minimum penalty would be said to be cruel and
unusual punishment”.40 With all due respect, the view from the
vantage point of the Nunavut Justice Centre in Iqaluit is very different
from that in downtown Vancouver.

[58] Our immense country is a confederation and not a unitary state. No


two parts of Canada are identical. Nunavummiut do not experience
the terrifying gang-related gun violence which plagues Toronto. Our

39
R v McMillan, 2016 MBCA 12, 326 Man R (2d) 56 [McMillan]; R v Oud, 2016 BCCA 332, 339 CCC
(3d) 379 [Oud].
40
Factum of the Respondent, supra note 22 at para 41; R v Oud, supra note 39 at para 50.
16

isolated and remote neighbourhoods “are not war zones”.41 Still,


firearm offences are far too prevalent in Nunavut. 42

[59] Nunavut forms a distinct society within Confederation. Over 86% of


our population is Inuit. Outside Iqaluit, the percentage of Inuit in our
hamlets rises to well over 90% of the population.43 This is why we
say that the Nunavut Court of Justice is a Gladue court.

[60] Because Gladue principles lie at the forefront of my analysis, I will


repeat what I said in the Mikijuk case:

In my lifetime, Inuit were forced off the land. Many were


removed, sometimes forcibly, by alien authority into artificial
and isolated communities. Children were taken from the
bosoms of their families and sent to far away residential
schools. One of the purposes of these schools was to supplant
their culture and language. That painful legacy reverberates
today. Sexual predators like Cloughley, De Jaeger, and Horne
victimized significant numbers of an entire generation. These
victims suffer still and so do their families. The Inuit world
and way of life was turned upside down.

Inuit society is still adjusting to that collective trauma. Jobs of


any kind outside Iqaluit and Rankin Inlet are scarce. What
little economy we have is government and mineral exploration
driven. There is an ongoing and serious housing crisis.
Overcrowding plagues many Nunavummiut. Overcrowding
affects their health. It adds stress to an already hard life. It
contributes to our shocking domestic violence statistics. Safe
houses for families in distress are few and far between. A
shocking number of our children go to school hungry. Social
and recreational infrastructure is woefully lacking. Time and
time again we are told that utter boredom leads many youths
into delinquency. For some, despair and misery lead to
thoughts that suicide is an option. Our suicide rate is many
times the national average. Thirty-two Nunavummiut killed
themselves in 2016

The Nunavut Court of Justice cannot judge offenders fairly


without acknowledging and understanding the real impact of
this reality on Nunavummiut.44

41
R v McMillan, supra note 39 at para 1, per Chartier CJ.
42
See, R v Mikijuk, 2017 NUCJ 2; 2017 NUCA 5 [Mikijuk].
43
Statistics Canada, Census Profile, supra note 5.
44
Mikijuk, supra note 42 at paras 22 to 24.
17

[61] Like Mikijuk, the present case highlights the challenges in applying
pan-Canadian legal principles in Nunavut. As I said earlier this year
in R v Anugaa:

We recognize that Inuit social governance continues in parallel


to the application of pan-Canadian criminal law. Therefore, we
strive to incorporate the precepts of Inuit Qaujimajatuqangit
into our judgments and all our practices.45

[62] To use a rifle to endanger oneself or others is not only a violation of


Canadian criminal law; it is contrary to all Inuit societal values – Inuit
Qaujimajatuqangit:

• Inuuqatigiitsiarniq (respecting others, relationships


and caring for people);

• Tunnganarniq (fostering good spirit by being open,


welcoming and inclusive);

• Pijitsirniq (serving and providing for family or


community or both);

• Aajiiqatigiinniq (decision making through discussion


and consensus);

• Pilimmaksarniq or Pijariuqsarniq (development of


skills through practice, effort and action);

• Piliriqatigiinniq or Ikajuqtigiinniq (working together


for a common cause);

• Qanuqtuurniq (being innovative and resourceful);


and

• Avatittinnik Kamatsiarniq (respect and care for the


land, animals and the environment).

[63] This is not to say that Inuit are not subject to the same laws – and
sentencing principles – as all other Canadians. Reference to Inuit
Qaujimajatuqangit is, however, a meaningful application of the clear
Gladue direction to judges that Aboriginal persons are to be
45
R v Anugaa, 2018 NUCJ 2 at para 42 [Anugaa].
18

sentenced “differently, in order to endeavour to achieve a truly fit and


proper sentence in the particular case”. 46

[64] The rationale stated in Gladue for this direction touches upon
considerations of fundamental justice as it is understood in Nunavut:

A significant problem experienced by aboriginal people who


come into contact with the criminal justice system is that the
traditional sentence ideals of deterrence, separation, and
denunciation are often far removed from the understanding of
sentencing held by these offenders and their community. The
aims of restorative justice as now expressed in para. (d), (e),
and (f) of s. 718 of the Criminal Code apply to all offenders,
and not only aboriginal offenders. However, most traditional
aboriginal conceptions of sentencing place a primary emphasis
upon the ideals of restorative justice. This tradition is
extremely important to the analysis under s. 718.2(e).47

[65] I shall comment later in my analysis on the disconnect between


southern and Inuit sentencing concepts and how that disconnect must
be faced squarely by sentencing judges in Nunavut.

[66] The foregoing considerations must guide and inform my Nur analysis.

ii. Gravity of the offence

[67] Firearm related violence is extremely serious. This “highly dangerous


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

[68] Aggravating factors serve to increase an offender’s sentence. There


are several aggravating factors in this case:

46
Gladue, supra note 4 at para 33.
47
Ibid at para 70.
48
R v Oud, supra note 39 at para 38.
19

• The offender deliberately fired his rifle;

• The offender fired his rifle at a house knowing it


was occupied;

• This is a case of domestic violence;49

• The gratuitous assault once the victim joined the


offender at his snow machine;

• The offender’s controlling and threatening


behaviour towards his partner; and

• The prevalence of firearm crime not only in


Nunavut, but in the offender’s community – Kimmirut.
b. Mitigating factors

[69] Mitigating factors serve to lessen the offender’s sentence. There are
several important mitigating factors in this case:

• The offender entered an early guilty plea;

• The offender has shown remorse and accepted


responsibility for his actions upon his arrest and
interrogation;

• Ms. Lyta has forgiven him; and

• The offender does not have a prior criminal record.


c. Criminal Records

[70] Criminal records play an important role in sentencing. Common


sense and our notions of justice tell us that a first-time offender will be
treated more leniently than someone who commits one serious crime
after another. Mr. Itturiligaq is a youthful first time offender. He is not
a hardened criminal.

49
Criminal Code, supra note 1, s 718.2(a)(ii).
20

d. The Canadian Victims’ Bill of Rights

[71] Victims of crime have the right to be heard in court.50 They may read
out loud, or file, a Victim Impact Statement. These statements bring
to life the real effect crime has on peoples’ lives. One cannot judge a
crime without understanding how its victims were affected. These
statements help ensure victims are not ignored during the sentencing
process.

[72] I was told that Ms. Lyta declined to file a Victim Impact Statement.
Crown Counsel did not provide any information concerning the other
three victims – the other people who were in the house during the
incident.
e. Mr. Itturiligaq

[73] The offender is 24-years-old. He was born in Iqaluit but spent his first
15 years in Hall Beach. Since then, he has lived in Kimmirut51 with
his father. He has five siblings. His parents divorced when he was
young. He had a traditional upbringing and he hunts and fishes for
sustenance. He is said to be an “avid” hunter. He completed grade
12 and he has a history of employment in the wage economy. He had
been employed as a security guard at the local Health Centre at the
time of his arrest.

[74] The offender has been on remand since this January. He has
completed four rehabilitative programs while in custody at Makigiarvik
Corrections Centre, a minimum security annex of the Baffin
Correctional Centre in Iqaluit: Inside Out, Substance Abuse Program,
Alternatives to Violence, and Healthy Inuit Families Program. He also
participated successfully in the six week Town Crew Program and the
Inuit Cultural Skills Program (ICSP).

[75] The offender’s town crew supervisor, Maigne Sese, said:

I am proud to say that Itturiligaq, Simeonie is my best worker


in town crew. I have been a Town Crew officer also in the
past, and never did I see a dedicated and passionate worker like

50
Canadian Victims’ Bill of Rights, SC 2015, c 13.
51
Population of 389 in 2016. Statistics Canada. 2017. Kimmirut, HAM [Census subdivision], Nunavut and
Nunavut [Territory] (table). Census Profile. 2016 Census. Statistics Canada Catalogue no. 98-316-
X2016001. Ottawa. Released November 29, 2017.
https://www12.statcan.gc.ca/census-recensement/2016/dp-pd/prof/index.cfm?Lang=E (accessed October 9,
2018).
21

him. I always brag to others that he’s my best worker. He


never complains and has initiative to do task [sic] without me
asking.

In addition, he’s [sic] character and behaviour is remarkable.


He’s always positive and the crew members are fond of him as
well. There were times that the other town crew members even
joke around and ask him to slow down.52

[76] The offender’s ICSP supervisor, Tommy Inookee, wrote:

Simeonie really enjoyed while participating in the ICSP. He


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

[77] The Court received a Pre-sentence Report. In the report, the


offender’s father, Sam Pikuyak, expressed “shock” that his son acted
the way he did. His step-mother, Sheryl Carruthers, said the offender
is a quiet person who stays at home and who loves his daughter. She
stated, “it was a rash act and the accused did not think before he
reacted”.54 He continues to have their ongoing support.

[78] The report also references numerous Gladue factors pertaining to the
offender:

• His parents went their separate ways when he was


six or seven years old and he lived with his mother;

• He witnessed domestic violence as a child;

• His mother was a heavy marijuana user while he


was growing up;

52
Applicant’s Factum, supra note 29 at Tab 4 “Exhibit D” to Affidavit of William McDiarmid.
53
Ibid, “Exhibit E”.
54
Pre-sentence Report filed October 4, 2018 at 3 to 4.
22

• He suffers from a hearing deficit and wears a


hearing aid;

• He experienced the overcrowding so common in


the territory, living with his partner and child with his
partner’s family. They have been on a housing
waiting list for “a couple of years”;

• His education was hampered by his difficulty


understanding English because the emphasis was
on English language instruction at school;

• He won’t qualify to get his job back and there are


very few employment opportunities in Kimmirut; and

• He has had thoughts about suicide during his


relationship with the victim.

[79] The offender was subject upon remand to an order forbidding contact
with Ms. Lyta. That condition was removed on May 14, 2018. Since
that time, Ms. Lyta has been visiting him at Makigiarvik where she
brings him country food. I was told that they wish their relationship to
continue.

iv. Actual anticipated effect of the sentence on the offender

[80] Nineteen years after Division from the Northwest Territories, Nunavut
still sends its federal offenders to southern Canadian penitentiaries.
Penitentiary time is intended for offenders who cause death or
grievous bodily injury to others. Penitentiary time is intended for serial
offenders of serious crimes. Penitentiary time is appropriate for
offenders who have become hardened criminals. Penitentiary time
over a thousand kilometres from home, family, friends and his culture
can be expected to have a profoundly negative impact on Mr.
Itturiligaq. Four years of penitentiary time in this case would sacrifice
four years of his life and rehabilitation on the altars of denunciation
and general deterrence.
23

v. Penological goals and the relevant principles of sentencing

[81] The imposition of a four year mandatory minimum sentence


represents a deliberate policy choice made by the duly elected
government as passed into law by both Houses of Parliament. The
MMP expresses Parliament’s determination to address gun-related
violence which is perceived to be a growing and pressing problem.
Parliament legislated to give precedence to the principles of
denunciation and deterrence. It was within Parliament’s absolute
constitutional jurisdiction to do so.55

[82] However, all Acts of Parliament are subject to Charter scrutiny. This
is so because the Constitution is the “supreme law of the land”.56 It is
the sworn duty of members of the judiciary to defend the Constitution,
the Rule of Law and the rights of Canadians.

[83] The first branch of the Nur analysis now requires that I apply the
regular objectives and principles of sentencing for the purpose of
comparing a proportionate – just and fit – sentence with the MMP. In
this context, it is important to recall that proportionality “is the sine qua
non of a just sanction”.57

[84] Above all, the sentence I would impose must serve to protect the
public, and to foster respect for our justice system.

[85] The law is clear: denunciation and deterrence are the primary
sentencing principles in cases of gun related violence. The
sentence I impose must condemn this extremely serious crime.
Serious crimes must be seen to have serious consequences.
Furthermore, a balancing of the aggravating and mitigating factors in
this case of serious domestic violence requires that the offender be
separated from the community.

[86] As I have noted elsewhere, imprisonment is consistent with traditional


Inuit justice.58 When a person threatened the traditional group’s
safety and well-being, that person could be, and sometimes was,
banished. Many were later welcomed back into the group.

55
Morrisey, supra note 20 at paras 43 and 46.
56
Constitution Act 1982, supra note 5, s 52.
57
Nur, supra note 10 at para 43, citing Ipeelee, supra note 7 at para 43. The Latin term sine qua non means
something on which another thing necessarily depends. Black’s Law Dictionary, 10th ed, sub verbo “sine
qua non”.
58
R v Cooper-Flaherty, 2017 NUCJ 11 at para 17 [Cooper-Flaherty].
24

Forgiveness, reconciliation, reintegration and restitution were, and still


are, key aspects of Inuit justice; as they are today in the Nunavut
Court of Justice.

[87] The Criminal Code requires the judge to emphasize rehabilitation. In


my view, this requirement cannot be overstated. Experience has
taught us that without rehabilitation, there is every likelihood that the
offender will reoffend. In Nunavut, rehabilitation is at the forefront of
every sentencing hearing.59

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

vi. Valid alternatives to incarceration

[89] As I have noted, there is no reasonable alternative to jail in these


circumstances.

vii. Sentences for other crimes in Nunavut

[90] This examination focuses on the principle that similar cases ought to
be sentenced similarly. Counsel have cited four recent gun related
Nunavut cases.

[91] In R v Lyta, a 22-year-old intoxicated and suicidal Inuk male fired 11


rounds of his .22 calibre rifle at the homes of two RCMP officers in
Kimmirut. Seven bullets hit the duplex. Each family sheltered inside
where they waited three agonizing hours for the Emergency
Response Team [ERT] to arrive from Iqaluit. The offender entered an
early guilty plea. He has not intended to hurt anyone. The Nunavut
Court of Appeal raised the sentence from the MMP to five years
imprisonment.60

59
Ibid at para 18.
60
R v Lyta, 2013 NUCJ 1; 2013 NUCA 10.
25

[92] In R v Utye, a 21-year-old intoxicated Inuk male grabbed a .303


calibre rifle and fired it numerous times as he walked towards the
Kimmirut RCMP detachment. He then took up a position on a hill
overlooking the detachment. He then unleashed what the judge
called “a hail of bullets”. During the attack, 13 bullets penetrated the
detachment and seven more penetrated the police vehicle which was
parked outside. The offender was arrested by ten community
members as he walked home before the ERT team arrived. The
offender pleaded guilty. He received a seven year penitentiary
sentence.61

[93] In R v Mikijuk, a highly intoxicated, mentally ill and suicidal 28-year-


old Inuk male fired at least 11 .17 calibre shots from the window of a
residence in Iqaluit’s Happy Valley neighbourhood. The
neighbourhood was locked down for almost 48 hours. At one point, a
police Constable returned fire with a sniper rifle, missing the offender.
The ERT team was deployed, and reinforcements were flown in from
the south. The offender pleaded guilty. I imposed the mandatory four
year mandatory minimum penitentiary sentence. The Crown
appealed my calculation of pre-sentence credits, but not the
sentence.62

[94] In R v Ookowt, an extremely intoxicated 19-year-old Inuk male was


assaulted as he walked home in Baker Lake. The offender went
home and retrieved his father’s 2250 calibre rifle. He positioned
himself on a hill which overlooked his assailant’s house. He fired one
shot which went into the house, missing an occupant by a few inches.
The offender did not know the house was occupied and he did not
intend to hurt anyone. He was out on bail having been previously
charged with criminal offences. Johnson J. found that the MMP
infringed the offender’s s. 12 Charter rights. He sentenced the
offender to two years less a day in jail followed by probation. The
case has been appealed by the Crown.63

viii. A proportionate sentence

[95] I now consider what a proportionate sentence would be based upon


the regular objectives and principles of sentencing.

61
R v Utye, 2013 NUCJ 14.
62
Mikijuk, supra note 42.
63
R v Ookowt, 2017 NUCJ 22 [Ookowt].
26

[96] The sentence I would impose must strongly denounce this serious
case of domestic gun related violence. The sentence must put
denunciation and deterrence at the forefront. The deterrent message
must be strong. Serious crimes have serious consequences.

[97] The tiny population of Kimmirut has experienced significant gun


related violence over the recent years. The residents of Kimmirut
have an enduring interest in, and a need for, a strong deterrent
message from this Court.

[98] Gun related violence also offends the proper use of firearms in Inuit
culture. Hunting is central to Inuit identity and community. Indeed,
the presence of harvesting rights in Article 5 of the Nunavut Land
Claims Agreement speaks to the central importance of hunting to the
individual and collective identity of Inuit.64 Many Nunavummiut also
continue to rely on country food for their sustenance. The sentence I
impose must reaffirm not just the necessity, but the centrality of
responsible firearm use in Nunavut.65

[99] Cases of domestic violence continue to fill our circuit court dockets in
every one of our communities. In this case, the offender bears a high
degree of moral blameworthiness for his abusive and controlling
actions. The Nunavut Court of Justice has been in the forefront in
condemning spousal and relationship violence. The sentence I
impose must do so as well.

[100] I am also obliged to exercise restraint in passing sentence. The law


directs me to impose the least restrictive sanction sufficient to meet
the objectives and principles of sentencing. The question I must
resolve is: what least restrictive period of jail time adequately
addresses the circumstances of this case in addition to the objectives
and principles of sentencing?

[101] A just sentence must fit the crime and the offender. As I noted
earlier, proportionality is the fundamental principle in sentencing. In
this regard, the four Nunavut cases I reviewed above are instructive. I
64
Agreement Between the Inuit of the Nunavut Settlement Area and Her Majesty The Queen in Right of
Canada, 25 May 1993 (Ottawa, ON: Published under the joint authority of the Tungavik and the Hon T
Siddon, Minister of Indian Affairs and Northern Development, 1993), online: <
http://www.justice.gov.nu.ca/apps/UPLOADS/fck/file/NLCA.pdf > [Nunavut Land Claims Agreement or
NLCA]
65
Judges of the Nunavut Court of Justice sit with community elders while on circuit. Elders consistently
remind offenders that fire arms are not to be used to hurt or scare people; Inuit need and use fire arms for
hunting.
27

will focus on Mikijuk and Ookowt as they are the most pertinent
comparators.

[102] Mikijuk clearly was far more severe on the scale of seriousness than
the present case. The Crown in that case recommended a five year
penitentiary term. I imposed the four year MMP which the Crown did
not appeal. To impose the same four year sentence on Mr. Itturiligaq
as in Mikijuk would, among others, violate the principle that like cases
ought to be sentenced alike.

[103] The facts of Ookowt are much closer to the present case. Johnson
J. in that case found that the MMP breached Charter s. 12. He
sentenced that offender to territorial time of two years less a day
followed by probation. I find Johnson J.’s reasoning in Ookowt to be
persuasive. In my view, Ookowt is a well-reasoned precedent.
Ookowt is persuasive authority that Mr. Itturiligaq ought to receive a
jail term significantly less than the MMP.

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

[105] I also agree with Johnson J.’s comments in Ookowt concerning the
uneven application of Gladue principles.66 Gladue principles are to be
applied no matter the gravity of the offence.67

[106] I stated earlier that justice must be rooted in the community it serves.
We find this fact rooted in the core of the Supreme Court of Canada’s
directions in Gladue and Ipeelee. It follows, in my view, that one
cannot sentence Nunavummiut without considering the precepts of
Inuit Qaujimajatuqangit.

[107] The norms of Inuit social governance were based, in part, on the
primacy of the interests of the group. The cohesion and security of
the group rested largely on cooperation and mutual support in a harsh
and unforgiving climate. Not surprisingly, forgiveness, reconciliation,

66
R v Ookowt, supra note 62 at paras 76 to 79.
67
Ipeelee, supra note 7 at para 83; Clayton Ruby et al, Sentencing, 9th ed. (LexisNexis, 2017) at 713 to
714.
28

reintegration, restitution and understanding became hallmarks of Inuit


social governance.

[108] Rehabilitation, reconciliation and reintegration continue to be as


relevant to Nunavummiut today as they have always been. The
Nunavut Court of Justice honours and is mindful that tradition. More
importantly, these Inuit norms must be considered by the judge when
crafting a just and fit sentence.

[109] In this regard, there is some common ground between Inuit and
Qallunaaq legal norms. Most of us are familiar with the maxim that
justice must always be tempered with mercy.

[110] I must not lose sight of this youthful first-time offender’s efforts to
date and his real potential for rehabilitation.

[111] Mr. Itturiligaq had a traditional upbringing. His life is intimately


connected to his land – the land of his ancestors. In this Court, we
hear frequent submissions from counsel on the impact a loss of liberty
has on a traditionally raised Inuk. Time and again, we are reminded
that house arrest is a meaningful sanction for someone deeply rooted
in the land. The negative impact of incarceration in a corrective
facility – especially one in the south where the offender is isolated
from community – is multiplied.

[112] A just a fit jail sentence in this case would be in the range of 18
months to two years less a day in in territorial jail. The restraint
principle is a constitutional requirement which must be given more
than mere lip service. Given the history of recent gun-related violence
in Kimmirut, and its domestic context, the appropriate and least
restrictive sentence in this case would be two years less a day in jail
followed by probation for two years.

B. Gross disproportionality

[113] I turn now to the second branch of the Nur test – is the MMP grossly
disproportionate having regard to all the circumstances of the offence
and offender?

[114] I have just determined that the proportionate jail sentence in this
case is 2 years less a day, or 24 months less a day, in jail. The MMP
requires four years in a federal penitentiary or 48 months. The test is
29

not merely mathematical. However, the resulting 24 month difference


(in fact, two years plus a day) in sentence is, in my view, a highly
significant factor.

[115] Where the offender will serve his sentence is also a significant factor
for Nunavummiut. The minimum security Makigiarvik Corrections
Centre is in Iqaluit and the offender has progressed extremely well
there. The offender is from Kimmirut. Kimmirut is the closest hamlet
to Iqaluit, and there is much traffic between the communities,
especially in winter. Ms. Lyta and their two-year-old daughter, Emma,
would be able to continue to visit him.

[116] There is no federal penitentiary in Nunavut. Inuit must serve their


federal prison time in the south where they are forced to live in
isolation from their culture, family and social networks. In many ways,
the federal penal system is a twenty-first century continuation of the
philosophy of forced resettlement, Residential Schools and southern
tuberculosis sanitaria. Many Nunavummiut cannot understand why
we continue to let our offenders be sent south.

[117] This case also highlights concerns expressed by the Commissioners


of the Truth and Reconciliation Commission. The Commissioners
noted, in my view correctly, that MMPs undermine the ability of the
courts to apply Gladue principles.68 Their call to action is a clarion
call that resonates with those of us who live, fish, hunt, work and raise
our families here:

Call to Action: 32) We call upon the federal government to


amend the Criminal Code to allow trial judges, upon giving
reasons, to depart from mandatory minimum sentences and
restrictions on the use of criminal sentences.69

[118] For justice to be seen to be done by Nunavummiut, this Nur analysis


must account for Gladue. This Nur analysis must account for Inuit
Qaujimajatuqangit. The mandatory minimum regime is, in reality, a
perpetuation in Nunavut of last century’s systemic colonialism and
discrimination.

[119] Anglo-Canadian judicial concepts such as denunciation, deterrence


and retribution do not rest easily with Inuit conceptions of

68
Final Report of the Truth and Reconciliation Commission of Canada, Volume One: Summary (James
Lorimer and Company Ltd., Toronto; 2015) at 173 Call to Action 32.
69
Ibid.
30

reconciliation, reintegration and group harmony – restorative justice.


This reality has been experienced by those of us who have travelled
extensively with our circuit court around the territory. This reality
reflects, in part, the fact that Nunavummiut continue to live in
extremely small, isolated communities.

[120] As I explained in Anugaa, this court travels to all 25 of our territory’s


far-flung and remote communities. Many months may pass in the
smallest hamlets between court sittings. By the time cases are dealt
with in court, many parties have already reconciled and have moved
on with their lives. Resentment and stress are triggered when the
justice system insists these proceedings continue to a legal
resolution. Resentment, stress and anger often arise when offenders
are sent to jail outside the community against the express wishes of
the victim, family and sometimes the community.

[121] This analysis speaks directly to the issue of gross disproportionality.


It speaks directly to our society’s conception of what constitutes
justice. Commentators have noted recently the perception that many
courts have given mere “lip service” to Gladue principles.70 Not so in
the Nunavut Court of Justice. As I stated earlier, judges of this Court
have a moral as well as a constitutional duty to apply Gladue
principles meaningfully when sentencing Inuit offenders.

[122] In my view, the MMP is far removed from the least restrictive
sentence required to meet the objectives and principles of sentencing.

[123] Taken together, these considerations persuade me that the MMP


violates the principles of proportionality, parity, rehabilitation, restraint
and Criminal Code s. 718.2. In the process, the MMP in this case is
out of all proportion to a fit and just sentence – it is grossly
disproportionate.

[124] If I were I to impose the MMP in a southern penitentiary in the


present circumstances, it would be considered intolerable by fair
minded Nunavummiut. To send Mr. Itturiligaq to a southern
penitentiary in these circumstances would indeed outrage
Nunavummiut’s collective and traditional sense of decency and
justice.

70
Sentencing, supra note 66 at 711, para 18.31.
31

C. Charter Section 12 – Conclusion

[125] In conclusion, the four year MMP imposed by s. 244.2(3)(b) violates


Mr. Itturiligaq’s s. 12 Charter rights. Section 244.2(3)(b) constitutes
cruel and unusual punishment.

[126] It is not necessary for me to consider the issue of the reasonable


hypothetical in this case because the sentence is grossly
disproportionate for Mr. Itturiligaq.

VII. CHARTER SECTION 1


A. The third branch of Nur – Is the MMP saved by section 1 of the
Charter as a demonstrably justified and reasonable limit in our
free and democratic society?

[127] The test I must apply at this stage was set out by the Supreme Court
of Canada in Nur. I must decide whether the Crown has
demonstrated that the MMP has a “pressing and substantial objective”
and is “proportionate” to achieving that objective.71

[128] The Supreme Court has set out an extremely high bar for this part of
the analysis. In the words of McLachlin CJC.:

It will be difficult to show that a mandatory minimum sentence


that has been found to be grossly disproportionate under s. 12
is proportionate as between the deleterious and salutary effects
of the law under s. 1.72

[129] Crown Counsel has conceded that s. 244.2(3)(b) cannot be saved


by s. 1 should I find the MMP to be grossly disproportionate.

[130] I adopt the reasoning of McLachlin CJC. Having found the MMP to
be grossly disproportionate in this case, it cannot be seen to be
proportionate under s. 1.
B. Charter section 1 – Conclusion

[131] I declare Criminal Code s. 244.2(3)(b) to be unconstitutional and of


no force and effect pursuant to s. 52 of the Constitution Act 1982.
71
Nur, supra note 10 at paras 111 to 112, citing R v Oakes, [1986] 1 SCR 103 (SCC).
72
Ibid at para 111.
32

VIII. SENTENCE

[132] Stand up, please, Mr. Itturiligaq.

[133] I sentence you to two years less a day in jail.

[134] You have been in custody for 277 days. You are entitled to receive
credit for pre-sentence custody at the rate of one-and-a-half-to-one, or
416 days. You will serve a further 303 days in jail.73

[135] This will be followed by probation for two years. You shall:

• Report to the local probation office within two


business days of your release from jail and thereafter
as required;

• Keep the peace and be of good behaviour;

• Take any counselling as directed by your probation


officer including anger management and healthy
relationship counselling;

• Refrain from communicating directly or indirectly


with Neevee Akavak, Eshuaktoo Ikkidluak and
Tommy Padluq unless their written consent is given
to your probation officer;

• Appear in court when required to do so by the


court;

• Notify your probation officer of any change in your


address, employment or name.

[136] I am also required to impose a number of ancillary, or related,


orders. I impose:

a. A mandatory firearms prohibition for life


pursuant to Criminal Code s. 109; and

b. I grant a Criminal Code s. 113 order


authorizing competent authority to issue you a fire

73
The apparent fault in my math is because months are calculated as 30 days for sentencing purposes.
33

license or registration certificate for sustenance or


employment purposes;

c. A mandatory DNA order pursuant to Criminal


Code s. 487.05;

d. Forfeiture of the seized 7600 Remington rifle


and ammunition; and

e. A victim fine surcharge of $200. You have


two years to pay the surcharge upon your release
from jail.

[137] Good luck, Mr. Itturiligaq. No one wants to see you get into trouble
again.

[138] And again, I thank counsel for their excellent oral and written
submissions.

[139] Taima.

Dated at the City of Iqaluit this 11th day of October, 2018

___________________
Justice P. Bychok
Nunavut Court of Justice