Nunavut judges erred by refusing mandatory minimum sentences, says appeal court
“Indigenous women in northern communities are entitled to the same protection from the court as anyone else”
A panel of judges with the Nunavut Court of Appeal has overturned two decisions made by Nunavut judges to refuse the mandatory minimum sentence for reckless discharge of a firearm. (File photo)
A panel of judges with the Nunavut Court of Appeal has overturned two separate decisions by Nunavut judges, who had ruled four-year mandatory minimum prison sentences were unconstitutional when applied to young, first-time Inuit firearms offenders.
But, because both offenders had already completed or had nearly completed their original sentences and “given the significant period of time that had elapsed,” they will not have to serve more time, according to a decision released on June 9.
The appeals were both heard before the court of appeal on Sept. 17, 2019.
The panel of judges, Frederica Schutz, Sheila Greckol and Karan Shaner, agreed to hear the two appeals together because of their similarities.
Cedric Ookowt of Baker Lake and Simeonie Itturiligaq of Kimmirut 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, while Itturiligaq was sentenced by Justice Paul Bychok for an offence he committed in 2018.
Itturiligaq, who was 23 at the time, pleaded guilty in 2018 to firing one shot through the roof of a house in Kimmirut that he knew had people in it. He was upset that his girlfriend was spending time at her friend’s house, rather than at home with their daughter, according to the court’s agreed statement of facts. His girlfriend came out of the house, and Itturiligaq hit her with the butt of the gun on her leg before the couple went home.
Ookowt, who was 19 at the time, pleaded guilty in 2017 to firing a single shot into the house where Arnold Arngna’naaq lived in Baker Lake, shattering the window. Ookowt testified that Arngna’naaq, who had bullied Ookowt for years, had attacked him and punched him in the face out on the street while trying to steal his remaining liquor. Ookowt testified that on a scale of one to 10, he was intoxicated at a level of 10 when he fired the shot.
Both Ookowt and Itturiligaq received sentences of two years less a day for these offences.
In each case, Bychok and Johnson had also considered the damaging effect of sending first-time offenders outside Nunavut. Sentences of two years or more must be served in federal prisons. In Nunavut, that means those offenders are sent south to serve those sentences.
Johnson’s decision against the mandatory minimum sentence focused on Ookowt’s history of being bullied, his level of intoxication, the fact that he had fired only one shot and Gladue factors.
Bychok’s decision against the mandatory minimum sentence focused on Gladue factors and Inuit Qaujimajatuqangit.
In both cases, the Nunavut judges ruled that imposing the four-year mandatory minimum sentence would breach the offender’s rights under section 12 of the Charter of Rights and Freedoms, which states that everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
Nunavut judge “overemphasized intoxication, bullying and Gladue factors”
The panel said Johnson “overemphasized” four factors in Ookowt’s sentencing: intoxication, Gladue factors, the firing of only one shot and his reports of being bullied.
In terms of bullying, the panel wrote that “this was an act of firearm violence completely disproportionate to Mr. Ookowt’s experiences of being assaulted that night, or being bullied.”
The panel also said Johnson erred in determining that alcohol was a mitigating factor in Ookowt’s case.
“While it is clear that both the sentencing judge and Mr. Ookowt seemed to place much of the blame for his behaviour on his consumption of alcohol, intoxication was not a mitigating factor in this matter and was overemphasized by the sentencing judge,” the panel wrote.
The fact that Ookowt fired one shot was also not a mitigating factor, the panel wrote. Because Ookowt had been hunting since the age of six, he knew “the destructive power a rifle could have,” they said.
“The first shot fired at a residence may often be the most serious because it risks the lives and safety of the unsuspecting occupants who have no time to react or take cover,” the panel wrote.
The panel also said Ookowt’s single shot was premeditated, which was an aggravating factor.
“Mr. Ookowt very easily could have killed someone, namely Kenneth Arngna’naaq [Arnold Arngna’naaq’s uncle, who was in the house], and it was a matter of pure luck that he did not.”
In terms of Gladue factors, the panel also noted that Johnson found Ookowt “appeared to be falling into the same problem with alcoholism as his father” but “did not have a disadvantaged upbringing.”
“While a history of colonialism must be taken into account, including substance abuse and suicide in this matter, it is difficult to identify any background factors that greatly diminish Mr. Ookowt’s moral blameworthiness for this serious firearm offence, at least to the extent found by the [sentencing] judge to ‘temper the usual deterrence sentence’ by more than two years.” the panel wrote.
“The people of Nunavut, like people everywhere else in Canada, are entitled to be protected by the law and are entitled to be safe in their homes and communities, free from firearm-related gun violence.”
Interpretation of Inuit societal values questioned
In Itturiligaq’s case, the panel said Bychok “did not provide any persuasive reasons for imposing a sentence that did not address the well-established seriousness of this firearm offence.”
“While Itturiligaq may be an exception in that the accused was sober when he shot a rifle at an occupied house after a fight with his girlfriend, the conduct was still the result of a young man addressing a personal conflict with firearm violence,” the panel wrote.
As in Ookowt’s case, the panel also found that firing a single shot was not a mitigating factor.
“Even if Nunavut is not a ‘war zone’ for gangs, as the sentencing judge put it, Nunavut has a pressing interest in deterring gun violence. Firearm violence is equally, if not more, grave and aggravating in the domestic relationship context and in small community settings where there are limited means of escape,” the panel wrote.
“Implicit in the sentencing judge’s reasons, in our view, was his determination gang-related gun violence on the streets of Vancouver is qualitatively more serious than gun violence in Nunavut that occurs in the context of a domestic relationship with the intended consequence of intimidating, threatening, controlling and terrifying one’s domestic partner,” the panel wrote.
“This was a substantial error, one which materially impacted the sentencing judge’s proportionality assessment. Indigenous women in northern communities are entitled to the same protection from the court as anyone else.”
The panel said Bychok also erred in his determination that penitentiaries are reserved for “murderers, serial offenders and hardened criminals.”
“This is not a correct statement of the law, or a correct statement of penological goals. Penitentiaries are reserved for offenders, including first time offenders, who commit very serious offences warranting a sentence of two years or more, including the offence for which Mr. Itturiligaq was convicted,” the panel wrote.
But the panel also recognized that the argument that imposing a four-year sentence meant Itturiligaq would have to leave his community and his family.
“We understand the sentencing judge’s concerns in this regard, and similar comments that have been made in various sentencing decisions in this jurisdiction; it may be well past the time that the Government of Canada ought to have addressed this situation,” the panel wrote.
“The Crown asserts [Bychok] elevated the importance of Inuit social justice concepts in respect of the ‘forgiveness factor,’ to a materially erroneous degree. We agree.”
“The experience of any domestic partner, usually a woman, who is subjected to the fury of her rifle-bearing domestic partner, and is inside a house he fires upon, is objectively terrifying as is being hit by the rifle he just discharged in her direction,” they wrote.
The panel also noted that although there is “undoubtedly an important intersection between Inuit Qaujimajatuqangit and Canadian criminal law rules and processes,” there wasn’t evidence to support it as a mitigating factor in Itturiligaq’s sentence.
“Without any evidentiary record to assess whether the Inuit community’s application of its own Inuit Qaujimajatuqangit would have necessarily or inevitably resulted in a lower sentence, it was not correct to assume that in a domestic dispute where a powerful weapon was fired in anger at an occupied home, the Inuit community itself would have placed any mitigating weight on the victim’s willingness to continue a relationship with Mr. Itturiligaq,” the panel wrote.
“Simply put, there was no evidence to suggest that Inuit Qaujimajatuqangit would place any less emphasis on denunciation and deterrence than Parliament or the Criminal Code, or that Inuit Qaujimajatuqangit would invariably treat as mitigating what the victim said. On these matters, no one asked for the advice of the Inuit community, or for direct evidence from those tasked with interpreting and applying Inuit Qaujimajatuqangit.”
R v Ookowt, 2020 NUCA 5 by NunatsiaqNews on Scribd
R v Itturiligaq, 2020 NUCA 6 by NunatsiaqNews on Scribd
I am pleased to see some sanity has been injected into our discourse around legal issues and Inuit values, as well as Gladue principles. It’s about time. Good decision!
I give great respect to our local justice system who are always challenged in our society, here in Nunavut, when they determine the appropriate sentences. I also respect the decisions of the appeals court.
But at the same time, I believe it is time to appoint judges who are of Inuit descent. We have Inuit lawyers available but are any of them being groomed for an appointment? The ones I know personally are corporate lawyers. Where are the ones with experience or development as judges within the Nunavut Court of Justice or the Appeals Court?
Just one thought from many, that I hope will help in the growth of our territory. Inuit take this and run with it if you agree.
On the one hand I doubt anyone would disagree that having Inuit judges is a desirable thing. it is needed, no doubt. Yet making it appear that it is as easy as appointing someone (I mean seriously, why aren’t we just appointing them?!) gives it all the weight of knighting Elton John or Paul McCartney. It’s nice, sounds and feels good for a few moments and may even release some sense of historical guilt among people who have a predilection for such things. But wait a minute…. doesn’t it have to mean something? No, no… not anymore. The downside of bar lowering is it creates conditions, where both the public and the appointee themselves always wonder in the back of their minds if they really belong there. We don’t want that either. Let’s create a system that prepares the best possible judges from the Inuit population, and leave no doubt in anyone’s mind where they belong. Let’s dispel any sense of magic along the way.
You need ten years experience. No Inuit I know of have that, as almost everyone who finished the former law program never practiced law a day before going into othet careers.
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Agree, you can’t lower the bar for judges to allow new grads or lawyers with a year or two experience to be given such responsibility. If you do, society is going to pay while inexpence costs everyone in the system time and money.
It’s not just 10 years working in the legal field: any potential candidate also has to get a passing grade from one of the Independent Judicial Advisory Committees who review their competence and knowledge as well as their professional history before they can be considered for appointment.
These Inuit do no yet exist, and it will most likely be a couple of decades before they do.
We can’t even find fully trained beneficiaries to fill medical support staff positions in this territory, where do you think that the people qualified to be judges will come from?
I am familiar with one part-Inuk descent barrister who would probably hold the necessary qualifications, but he left the north 40 years ago and has no interest in returning, and has zero interest in being a judge.
Judge candidates don’t grow on trees, they take decades to prepare.
From the following comments, it appears some folks think I was suggesting that the Inuit judiciary should be less qualified or capable of being members of the court system. At no time did I wish to imply that belief. It is imperative that Inuit judges be as qualified as any of the existing judges. My post was meant to imply that we should be ensuring that is the direction we are headed.
I believe it was this part of your comment that led to that response: “I believe it is time to appoint judges who are of Inuit descent.”
The statement that there are no Inuit legal professionals qualified for the bench is untrue. There are several excellent candidates who are either qualified or very nearly qualified. I hope Nunavut sees them in the next round of applications and appointments.
I’m sure the colonial, patriarchal and hetero-normative standards for judges will be “reconsidered” in short order, and found to reinforce structures of colonial violence and oppression, and thus will be cast aside whereby a panel of elders will chose persons the of their liking and in alignment with the best intentions of the postmodern and post structural universe.
Yes, and how many of these people are interested in being judges? That’s a problem.
If they are of Inuk ancestry and have based themselves outside of Nunavut, I would think that some would be more inclined to accept a judgeship than if they were based in the territory.
Is it just me or has the NCJ been overturned on like every single case this year? Wow.
activist judges who believe their ideas on what IQ means supersedes the Constitution.
It’s called a Justice system.
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But Canada’s Justice is not about justice for the victims of crime, as we use the words.
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In the eyes of the court, if you are raped or murdered, the victim is deemed to be… the Crown. That’s becase you are deemed to belong to the Crown. That’s why it’s a crime against the Crown, not a crime against you.
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It has been said that this is intended to prevent revenge. Welcome to the world of legal slavery. In the eyes of the law we have the same rights as other property.
Anyone who thinks that longer jail terms will more likely protect women is very mistaken. It has been well demonstrated that offenders who serve longer jail terms, particluarly firs time offenders, are much more likely to reoffend and with much more violence. A restorative approach has much more chances to protect the community. Of course while the person is away in jail, the community is protected but that person will be released one day and that’s when things are likely to turn bad. The so-called Nunavut Court of Appeal is still a colonial court that imposes its colonial, non Inuit, conservative vews.
It would be interesting to see some statistics to support your arguments, anyone can claim Y + X = Z, it’s meaningless without data. That said I personally favour a restorative approach as well, but… not in all cases. Also, I suspect you may be falling prey to a sort of bias when you conflate your personal views with the views of all Inuit, as if they are synonymous. But again, that’s where the data will tell the story. I’m looking forward to what you have to present.
t his conservative Inuit wants to see stronger punishments for crims with community restoration justice. It is not coloonialist to want judges to punish the bad peoples. dont put words in my mouth Tulugak