Nunavut judge tosses Harper-era mandatory sentence
Mandatory minimum on firearms charge “grossly disproportionate”
A mandatory minimum sentence of four years in jail for reckless discharge of a firearm would be “grossly disproportionate” and in breach of the Charter of Rights were it applied in the case of a young first-time Inuk offender from Baker Lake, Justice Earl Johnson has ruled.
Johnson, now a deputy judge for the Nunavut Court of Justice, made the ruling in September 2017, but it was not distributed to the public in writing until late last week.
In it, Johnson imposed a jail sentence of two years less a day on Cedric Ookowt, 20, of Baker Lake after Ookowt pleaded guilty to reckless intentional discharge of a firearm, dangerous driving and evading police, offences he committed in 2016.
In doing so, Johnson rejected a mandatory minimum sentence of four years in prison for the reckless discharge of a firearm offence that former Prime Minister Stephen Harper’s Conservative government had brought into the Criminal Code in 2009, under former Justice Minister Rob Nicholson.
After applying factors set out in the Supreme Court of Canada’s 1999 Gladue decision on the sentencing of Indigenous offenders, and considering the events in June 2016 that led up to Ookowt’s offence, plus an analysis of relevant case law, Johnson decided that two years less a day is the proper sentence.
“In summary, he is a young aboriginal with no record who entered an early guilty plea and presents as a good candidate for rehabilitation,” Johnson said.
And that means that in Ookowt’s case, the mandatory minimum sentence of four years set out in section 244.2(1)(a) of the Criminal Code is unconstitutional.
“As a result, I am satisfied that it [the mandatory minimum] would result in a grossly disproportionate sentence and I find that Section 12 of the Charter is breached in this case,” Johnson said.
(Section 12 states that no one should receive cruel or unusual treatment or punishment.)
Ookowt committed the offences after he and a friend named “Richard” were drinking from three 40-ouncers of whisky out on the land.
After the pair drank two of the three 40-ouncers, Richard dropped Ookowt off at the home of Kenneth Arngna’naaq, the uncle of Arnold Arngna’naaq, who also lived there.
Ookowt testified that Arnold Arngna’naaq, who had bullied Ookowt for years, later attacked him and punched him in the face out on the street while trying to steal his remaining liquor.
“Arnold was also much older and much bigger than the accused and beat him up in the fight,” Johnson said in his judgment.
At that time Ookowt, on a scale of one to 10, said he was intoxicated at a level of 10.
But he was able to go home, grab his father’s .22-250 calibre rifle, and position himself on a hill overlooking the house where Arnold Arngna’naaq lived.
From there, Ookowt fired one round into a window of the house. Kenneth Arngna’naaq was at home, but Arnold was not there.
“Kenneth was in his living room watching television when the bullet shattered the window and missed him by a few inches,” Johnson said.
In reaching his decision, Johnson considered what he called a “compelling argument” from defence lawyer James Morton.
Morton said that a mandatory minimum sentence of four years, which would have to be served in a federal penitentiary, amounts to cruel and unusual punishment and violates Section 12 of the Charter of Rights.
He said Ookowt has strong family support and has been able to earn a living on the land.
“Although not employed in the wage economy, the accused has not wasted his time sitting at home watching television. He has put his traditional skills to use and has generated income through the sale of furs from animals he has trapped and from selling game he has killed,” the judgment said.
For those and other reasons, Johnson said the young man is a strong candidate for rehabilitation.
He gave Ookowt a credit of 675 days spent in pre-sentence custody, on the basis of 1.5 days for each day spent in jail waiting for the court to deal with the charge.
That leaves 54 days of time left to serve in custody.
And he sentenced Ookowt to three months for dangerous driving and three months of evading police, stretches of time to have been served concurrently with the other sentence.
On top of that he imposed a 12-month period of probation, during which he must abstain from alcohol, take counselling and do 50 hours of community service.
“I think it is very important for you to stay away from alcohol, but I cannot force you to do that. Alcohol got you into this offence—remember that and continue to work on your rehabilitation,” Johnson told Ookowt.