Prosecutors appeal Nunavut judge’s rejection of mandatory minimum for firearms offence

Nunavut’s Crown prosecutors are appealing a reduced sentence handed out to a firearms offender in a recent case where a judge found the mandatory minimum is unconstitutional.

But this time, the Crown’s appeal is “defective,” shows “a lack of due diligence” and therefore should be dismissed, according to Benson Cowan, the lawyer of Iqadluk Daniel Nungusuituq, a young Kimmirut man who went on a shooting spree in his hometown in February 2017.

Nungusuituq pleaded guilty to one count of recklessly firing a gun and endangering the lives of others during the 20-minute shooting spree, in which nobody was harmed.

The Criminal Code of Canada states that offence is supposed to carry a mandatory four-year sentence.

But in March, Justice Sue Charlesworth ruled the mandatory minimum in this case would amount to cruel and unusual punishment under Canada’s Charter of Rights and Freedoms.

Instead Charlesworth sentenced Nungusuituq to three years in jail.

In May, Nunavut’s prosecution office filed an appeal of that sentence, the court record shows.

This is not the first time Nunavut prosecutors have defended a Harper-era mandatory sentence overturned by a Nunavut judge.

In September, the Nunavut Court of Appeal will hear the Crown’s arguments in similar cases involving Simeonie Itturiligaq of Kimmirut and Cedric Ookowt of Baker Lake.

But in Nungusuituq’s case, prosecutors waited until the last day of the 60-day period to serve notice of appeal, Cowan said in court documents.

And instead of serving it to Nungusuituq or getting the court’s permission to serve it to a third-party, prosecutors left the notice with the RCMP, who left it with someone at Nungusuituq’s home.

“The service … was defective, not authorized by this court, outside of the time period, and reflected a lack of due diligence on the part of the Crown,” Cowan said.

The 60-day period to serve notice of an appeal is already the longest of any jurisdiction in Canada, Cowan pointed out. And the Crown is expected to serve the notice before the deadline, Cowan said.

Considering two nearly identical appeals have been filed recently, Cowan added, it is “inexplicable” why the Crown would take so long in this case.

“It is inexplicable that there could be any policy reasons requiring careful deliberation by the Crown given the presence of similar appeals on the same issue in [the] Itturiligaq and Ookowt [cases].”

This poses a real risk of prejudice to Nungusuituq because at the end of the 60-day period to serve notice of an appeal, “he could take comfort in the fact that his matter had been settled,” Cowan said.

“Having admitted responsibility and taken steps to rehabilitate himself, he could continue on that path and rebuild his life. Now, the Crown has signalled their intention to ask that he return to jail for at least a further 12 months.”

Cowan asked the appeals court to strike the appeal and declare it void.

In court July 24, Justice Paul Bychok gave the Crown until August 23 to file a response. This case will be raised in the Court of Appeal again on Nov. 13.