Nunavut appeal court to rule on mandatory sentences for first-time firearms offenders

Judges had said four-year minimums amount to cruel and unusual punishment

More than 30 people packed into the gallery of a courtoom inside of the Nunavut Court of Justice in Iqaluit on Tuesday, Sept. 17, for a hearing on two potentially precedent-setting cases. (File photo)

By Thomas Rohner
Special to Nunatsiaq News

In two potentially precedent-setting cases, the Nunavut Court of Appeal will decide if two Nunavut judges erred in 2018, when they ruled that four-year mandatory minimum prison sentences were unconstitutional when applied to young, first-time Inuit firearms offenders.

More than 30 people packed into the gallery of courtroom No. 2 at the Nunavut Court of Justice in Iqaluit for the hearing on Tuesday, Sept. 17. The spectators included about two dozen students from Nunavut’s law program, along with other Nunavut judges and lawyers.

In each case, Crown prosecutors appealed decisions in which Nunavut judges ruled that the four-year mandatory sentence for reckless discharge of a firearm violated section 12 of the Charter of Rights, which protects Canadians against cruel and unusual punishment.

Stephen Harper’s Conservative government, which then ruled with a minority, passed the four-year mandatory minimum penalty for reckless discharge of a firearm in 2009, with the help of votes from Liberal MPs.

The all-female panel of judges—Frederica Schutz, Sheila Greckol and Karen Shaner—agreed to hear the two appeals together because of their similarities.

Cedric Ookowt and Simeonie Itturiligaq were each convicted of recklessly firing a single round into a home.

Ookowt was sentenced by Justice Earl Johnson for an offence he committed in 2016 in Baker Lake, and Itturiligaq was sentenced by Justice Paul Bychok for an offence he committed in Kimmirut in 2018.

Neither man injured anyone.

Ookowt and Itturiligaq each received sentences of two years less a day. This ensures they serve their time in territorial jails.

Sentences of two years or more must be served in federal prisons.

Nunavut judges in each case considered the damaging effect of sending first-time offenders outside Nunavut.

The sentencing judges also applied factors set out in the Supreme Court of Canada’s 1999 Gladue decision on the sentencing of Indigenous offenders.

But Crown prosecutors disagree that the mandatory minimum sentences should have been tossed out.

“What is clear is that both [offenders] engaged in incredibly dangerous behaviour … that their communities should not have to abide,” Crown prosecutor Janna Hyman told the panel of appeal court judges.

Hyman presented arguments on behalf of the Crown on both sentencing decisions and made the case for new evidence to be allowed in Itturiligaq’s case.

The judge in that case, Justice Paul Bychok, was wrong to say federal jails are a continuation of colonial practices like forced relocation, Hyman said.

That’s why she argued to submit new evidence: information on efforts by a federal prison in Ontario to accommodate Inuit prisoners.

Those efforts include considerations around food, language and culture, she added.

Hyman said Bychok was also wrong to put Inuit Qaujimajatuqangit principles above principles set out in the Criminal Code of Canada.

For example, Bychok gave too much weight to the fact that Itturiligaq’s victim forgave him for his crime, and not enough weight on punishing Itturiligaq and making an example of him, Hyman argued.

And Bychok should have called expert testimony from elders on IQ principles instead of relying on his 15 years of experience in Nunavut to interpret them himself, Hyman said.

Justice Schutz, who interrupted Hyman a number of times to ask questions, said as far as she knows there has been no case in Canada that has required expert testimony on Aboriginal justice principles in sentencing.

That means if the appeals are granted, it could be the first time in Canada that expert evidence on Aboriginal justice principles is required to sentence an offender.

Lawyers for Itturiligaq said this is not a precedent that should be set.

Maija Martin, Itturiligaq’s lawyer, said Bychok did not raise IQ principles above the Criminal Code of Canada, but instead carried out his moral and legal duty.

Ever since the landmark Gladue decision in 1999 at the Supreme Court of Canada, judges are required to consider Aboriginal justice principles when sentencing an Aboriginal offender.

But IQ principles are not something a judge would call evidence on, Martin said. Principles are the basic values that judges use in every judgment without evidence, she said.

“A judge doesn’t call expert testimony on principles in the Criminal Code. So why would they on IQ principles?” Martin said.

Instead, a judge has to balance principles that sometimes are at odds with each other, she added. That includes balancing Criminal Code principles and, in this case, IQ principles.

Martin also argued that the Crown’s new evidence should not be allowed.

New evidence can only be entered on appeal to correct misinformation or provide information not available at trial—neither of which applies in this case, Martin said.

And the new evidence would not speak to the “fundamental issue,” which is separating Nunavut offenders from Nunavut, said Martin.

A legal expert who appeared on behalf of Itturiligaq said the Crown prosecutor also minimized the value of restorative justice in many Aboriginal justice systems by saying the judge gave too much weight to the victim’s forgiveness.

“Victims’ rights are not just about vengeance. Too often Indigenous offenders, victims and communities are ignored,” said Jonathan Rudin.

Rudin is the program director at Aboriginal Legal Services of Toronto and teaches law in Toronto.

Mandatory minimum sentences have not proven to be effective at deterring crime, and the Truth and Reconciliation Commission said they would likely add to the over-representation of Aboriginal people in jail, Rudin pointed out.

The panel of judges spent almost the entire hearing on Itturiligaq’s case.

Ookowt’s lawyer, Scott Cowan, did address the judges for a few minutes at the end of the three-and-a-half-hour hearing.

He told them the impact of sending Nunavut offenders to the South can be seen by the “chilling and stark” difference in questions that his clients in the south ask compared to those in the North.

“Offenders in the south ask me, ‘Am I going to jail?’ Offenders in the North ask me, ‘Am I being sent out?’”

For Ookowt, a sentence at a federal jail would have meant family had to take up to six flights to visit him.

Speaking on behalf of the panel, Schutz told the courtroom that the appeal court would reserve judgment in the case and issue it as soon as possible.

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(5) Comments:

  1. Posted by Fake Plastic Tree on

    “Hyman said Bychok was also wrong to put Inuit Qaujimajatuqangit principles above principles set out in the Criminal Code of Canada.”

    While I don’t agree with mandatory minimum sentencing, I also take issue with the application of a contrived set of principles masquerading as some kind of anterior, or proto-traditional legal code. This is where the call for the advice of an elder(s) comes in, otherwise the application of some nebulous value set called IQ turns the entire system of jurisprudence into an exercise in intractable relativism.

  2. Posted by Ok on

    Please go to the jail under cover and see what it is really like

  3. Posted by Ok on

    Please see what the guards put up for once..in real time

  4. Posted by Ok on

    Please

  5. Posted by Dang it on

    Got a 10 year wait to get a PAL possession and acquisition permit for firearms back when a robo-cop ran about town in 2016. That for having a single 22 without a lock on it on the premises, meanwhile all of the other firearms I own were well secure. Stupid laws that ought not to be laws no thanks to the Stephen Harper and his paranoia. The power is with the people, it is something that prime ministers and their office do not get (SNC Lavelin affair) and it is our duty to speak up when bs becomes the law of the land.

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