Nunavut judge tosses another mandatory sentence for gun crime
"The sentence I impose ought not to crush his spirit and hoped-for rehabilitation"
A Nunavut judge has thrown out another four-year mandatory minimum sentence for a firearms offence, this time for a young Kimmirut man who got mad at his girlfriend and fired a rifle round at a house where she was visiting.
Simeonie Itturiligaq, 24, of Kimmirut, had pleaded guilty this past May to one count of intentionally discharging a firearm at a house, knowing that it was occupied.
It’s his first criminal conviction.
But that offence, under section 244.2(3)(b) of the Criminal Code, carries a mandatory minimum prison sentence of four years, a provision brought into the Criminal Code of Canada in 2009. Stephen Harper’s Conservatives then ruled with a minority, but passed the legislation with the help of votes from Liberal MPs.
Appeal courts in British Columbia and Manitoba have already upheld that sentence, but after a hearing held this past Oct. 9 in Iqaluit, Justice Paul Bychok said Nunavut is different.
“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,” he said in his judgment.
He also said that “Nunavut is a distinct society” within Canada.
“Over 86 per cent of our population is Inuit. Outside Iqaluit, the percentage of Inuit in the hamlets rises to well over 90 per cent of the population.”
So after a sentencing hearing held this past Oct. 9, Bychok ruled the four-year mandatory minimum, as applied to Itturiligaq, is grossly disproportionate and unconstitutional.
“Mr. Itturiligaq is a 24-year-old first time offender. The sentence I impose ought not to crush his spirit and hoped-for rehabilitation,” Bychok said.
Instead, in a judgment that invoked the principles of the Supreme Court’s 1999 Gladue decision, which are mandatory for all Indigenous offenders, Bychok decided on a sentence that will let Itturiligaq serve his time in Nunavut: two years less a day.
And since he has already been held in pre-sentence detention for 277 days, for a credit of one and a half days for each day in custody, Itturiligaq has 303 days left to serve, Bychok ruled. After that, he’ll spend two years on probation.
The young man got into trouble on the evening of Jan. 8, 2018, when his girlfriend, Leesa Lyta, was visiting with friends at house 207D in Kimmirut.
Itturiligaq, who was sober, went to the house and demanded repeatedly that Lyta come home with him. She refused.
“The accused told her he ‘could get worse,’ and left,” Bychok said.
He returned with a .243 Remington 7600 rifle. After putting the gun on his snowmobile, he again asked Lyta to come home with him. Again, she refused.
After that he picked up his rifle and fired a round that entered the house above the front door and exited through the roof.
When his girlfriend left the house to join him, Itturiligaq struck her on the leg with his rifle butt and returned home with her, Bychok said.
After police arrested him, they found his unloaded rifle behind the water tank of his house, and two magazines, one loaded and one partially loaded, in the pocket of his coat.
After Itturiligaq pleaded guilty to intentionally discharging a firearm at a house, the Crown prosecutor, Philippe Plourde, said that even without a mandatory minimum, Itturiligaq was still liable to a “significant” jail term and said four years is an appropriate sentence anyway.
Defence lawyer Lana Walker asked Bychok to strike down the mandatory sentence and to impose a sentence of two years in jail, minus credit for time served, followed by 18 months on probation.
She also said Itturiligaq is a first-time offender and that a four-year stint at a federal penitentiary could inflict severe damage.
“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,” Bychok quotes her as saying.
In his sentencing decision, Bychok said that because of Nunavut’s overwhelming Inuit majority, the Nunavut court is a “Gladue court,” referring to the 1999 Supreme Court of Canada decision that said courts should take the unique circumstances of Indigenous offenders into account when sentencing them.
“If a sentence is to be considered just, it must be rooted in the realities of the offender and our society,” Bychok said.
He listed five aggravating factors:
• The offender fired his rifle at a house knowing it was occupied.
• This is a case of domestic violence.
• The gratuitous assault with a rifle butt once the victim joined the offender at his snow machine.
• The offender’s controlling and threatening behaviour towards his partner.
• The prevalence of firearm crime not only in Nunavut, but in the offender’s community of Kimmirut.
But he also balanced that with a list of four mitigating factors:
• The offender entered an early guilty plea.
• The offender showed remorse and accepted responsibility for his actions.
• His partner forgave him.
• No prior criminal record.
And he put much emphasis on Itturiligaq’s status as a first-time offender.
“Mr. Itturiligaq is a youthful first-time offender. He is not a hardened criminal,” Bychok said.
This past February, Justice Earl Johnson threw out a Harper-era four-year mandatory minimum for a firearms offence committed by a young first-time offender in Baker Lake.
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