Another Nunavut man has avoided a mandatory minimum sentence for shooting a gun, because a judge decided four years is cruel and unusual punishment for the crime.
Iqadluk Daniel Nungusuituq fired four shots the night of a community dance in Kimmirut, Nunavut, in 2017.
He pleaded guilty to shooting a gun with intent and was sentenced to three years in jail and a year of probation.
The criminal code says the gun crime requires a prison term of at least four years, but three Nunavut judges in recent years have ruled there are cases where the mandatory minimum is unconstitutional and specifically discriminates against Indigenous offenders.
In Nungusuituq’s case, Justice Susan Charlesworth said three years more appropriately balances the severity of the crime with a true chance to rehabilitate the young offender.
Nungusuituq was 20 years old at the time of the offence and has no prior criminal record.
Charlesworth sentenced him on March 22 and the Court released the written reasons for her decision on April 25.
Charter challenge allowed
Charlesworth allowed Nungusuituq’s charter challenge to the mandatory minimum, when she considered Nungusuituq’s personal circumstances and the incident in relation to two other Nunavut cases.
Last year, Justice Paul Bychok sentenced Simeonie Itturiligaq to two years less a day for shooting a gun at an occupied house and in 2017 Justice Earl Johnson sentenced Cedric Ookowt to two years less a day for also shooting into a house.
Both those decisions are being appealed according to the Crown prosecutor in Nungusuituq’s case, but Charlesworth says that doesn’t mean the reasoning in them was wrong.
A court can find a mandatory minimum unconstitutional, if the defendant proposes a reasonable situation where the sentence would be cruel and unusual according to section 12 of the Canadian Charter of Rights and Freedoms.
In this case, the proposed hypothetical situation involved a bullied Indigenous person who fires a shot into the air, turns himself into police custody then pleads guilty — very similar to the actual events of the three cases being considered: Nungusuituq’s and the two earlier cases.
Considering Indigenous offenders
On the night of the community dance, Nungusuituq was drunk and high and was beaten up by some kids in the community.
He got his gun and shot it once into the air above his father’s house before returning to the area near the community hall where he says he aimed the gun above the heads of people.
One bullet flew over a woman’s shoulder, another hit the ground near his cousin. In total four shots were fired.
“This was a very grave offence: Mr. Nungusuituq’s actions of firing his rifle with the small hamlet of Kimmirut undoubtedly had a lasting impact on many members of his community,” said Charlesworth.
However, Charlesworth says as he was doing well before the incident, living with his grandfather and taking care of him, she sees him as a good candidate for rehabilitation.
“He … suffered a disrupted, abusive childhood, but had become an avid and talented hunter providing food for his family and community,” Charlesworth noted.
Gladue principles — principles originating in a Supreme Court case from 1999 — direct Canadian courts to give special consideration to the impact colonial policies continue to have on Indigenous offenders.
“Parliament does not appear to have considered Gladue principles in its imposition of a mandatory minimum sentence requiring a significant penitentiary sentence,” Charlesworth writes in her decision.
With the credit for the time Nungusuituq had served in the Baffin Correctional Centre before his sentencing, his jail time is complete. He is is now serving his probation.