Constitutional Challenge Mandatory Minimum Discharging a Firearm (Recklessness) - R. v. Ookowt

R. v. Itturiligaq, 2020 NUCA 6 and R. v. Ookowt, 2020 NUCA 15

Twenty-nine offences in the Canadian Criminal Code carry a mandatory minimum sentence of imprisonment. The majority (nineteen) of these mandatory minimum sentences were introduced with the enactment of Bill C-68, a package of firearms-related legislation in 1995.

In these two cases, the Nunavut Court of Appeal had occasion to rule on the constitutionality of the four-year mandatory minimum mandated for discharging a firearm pursuant to section 244.2(3)(B) of the Criminal Code. The argument was made that the mandatory minimum sentence constituted cruel and unusual punishment contrary to section 12 of the Canadian Charter of Rights and Freedoms.

The Nunavut Court of Appeal in Itturiligaq ruled the mandatory minimum under section 244.2(3)(B) is not grossly disproportionate and is therefore not contrary to section 12 of the Charter. The same court in Ookowt reaffirmed the constitutionality of the section and further hypotheticals did not reveal a gross disproportionality following the second stage in the case of R. v. Nur. 

The court held that mitigating factors personal to an accused necessarily take on a less significant role when fixing the appropriate penalty for a firearms-related offence. This was essentially an acknowledgment of the Ontario Court of Appeal’s decision in R. v. Nur. The Nunavut Court of Appeal reached the same conclusion in the cases before it. 

The court held that Mr. Itturiligaq was an adult whose offending behaviour was “inherently dangerous and highly disruptive of the public peace”. The positive steps he had taken since the offence were to be considered secondary to denunciation and deterrence. The court further held that the conduct caught under s 244.2 of the Criminal Code should attract a consistent response commensurate with Parliament’s deterrent objective.

The court recognized that the offence occurred in a small, predominantly Inuit community in Nunavut, and that there were Gladue factors and Inuit Qaujimajatuqangit considerations, but that none of those factors operated to make the four-year mandatory minimum a grossly disproportionate sentence for the particular offence, nor for the particular offender.

Because the court held that the four-year sentence range would be a fit and proportionate sentence for Mr. Itturiligaq’s conduct, it followed that they did not find the mandatory minimum punishment grossly disproportionate when compared to that fit sentence.

In Itturiligaq, there is no doubt that the sentencing judge made errors in principle, however, I do not agree that the NUCA should have upheld the constitutionality of the mandatory minimum sentence for the offence. I question the necessity of imposing significant penitentiary terms of incarceration for offences where the behaviour does not cause injury, especially in isolated communities in the far north.