Another Nunavut judge refuses to impose mandatory minimum sentence

Another Nunavut judge has refused to impose a mandatory minimum sentence for a firearms offence, on the grounds that it constitutes cruel and unusual punishment under Section 12 of the Charter of Rights.

This time, it’s a case involving a young Kimmirut man convicted last month for engaging in a dangerous shooting spree on Feb. 18, 2017.

Justice Susan Charlesworth, this past March 29, sentenced the young man, Iqadluk Daniel Nungusuituq, to three years in prison followed by a one-year probation order.

But at the same time, she found that, although the young man committed the “very grave offence” of intentionally discharging a firearm while being reckless as to the life or safety of other persons, the four-year mandatory minimum sentence prescribed for it in the Criminal Code violates the Charter of Rights.

To explain that decision, Charlesworth released her written reasons on April 23.

In her judgment, she followed a process set out by the Supreme Court of Canada to help judges figure out whether a mandatory minimum sentence is “grossly disproportionate” and therefore in breach of the Charter.

First, she figured out what a “proportionate” sentence would be, based on principles written in the Criminal Code.

Second, she compared that “proportionate” sentence with the mandatory minimum—and concluded that the mandatory minimum—in this case— is too harsh.

To assess the seriousness of the offence, Charlesworth relied on an agreed statement of facts that Crown and defence lawyers presented in court when Nungusuituq pleaded guilty.

The statement said that on Feb. 18, 2017, Nungusuituq became intoxicated on a combination of vodka and marijuana while at a dance in the community hall, and ended up getting beaten up by some youth.

Enraged, he went home and grabbed a Ruger .22 calibre rifle, and headed to his father’s house. There, he pointed the rifle at his father and fired a shot into the air outside his father’s door.

After that, he headed to the community hall, where he fired another shot into the air, and then pointed the rifle at another man, who while running away from Nungusuituq, saw another shot hit the ground near him.

After that, Nungusuituq fired a shot at a young woman who slipped and heard a bullet fly past her shoulder.

Another young woman, Alashuk Allen, was hiding under the steps of the community hall when Nungusuituq approached her.

“She identified herself to him and said, ‘don’t shoot; I got kids.’ Mr. Nungusuituq replied that no one loved him and he had no friends,” Charlesworth’s judgment said.

Allen got close enough to grab the rifle and, with the help of two other people, they took the weapon away from him and held him down until the police arrived.

In looking at Nungusuituq’s circumstances, Charlesworth said the young man suffered “a disrupted, abusive childhood” but became an avid hunter and food provider for his family.

He’s also a first-time offender, with no criminal record prior to the February 2017 shooting incident.

After his arrest, he was held at the Baffin Correctional Centre, the Toronto South Detention Centre, and the Makigiarvik Correctional Centre. While in custody waiting for the courts to deal with his case, he completed three rehabilitation programs: Substance Abuse, Alternatives to Violence, and Inunnguiniq Healthy Families.

“The programs he took while in custody and the fact that he was doing well before this incident, despite his upbringing, suggest that Mr. Nungusuituq is a candidate for rehabilitation,” Charlesworth said.

So after weighing and balancing a combination of aggravating and mitigating factors, she decided on a sentence of three years in prison, followed by a one year on probation.

When compared with that, the four-year mandatory minimum is not grossly disproportionate, she said.

But she said that if compared with some hypothetical cases, as well as some real case that other judge have already ruled on, the mandatory minimum does breach the Charter.

“I have found that the mandatory minimum sentence can result in grossly disproportionate sentences for individuals and I do not agree that the legislation is proportionate,” she said.

And because Nungusuituq had spent so much time in remand custody waiting for the court to deal with his charge, his prison sentence was deemed to be served as of the date of his sentencing, Charlesworth said.

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