Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: R. v. Ookowt, 2017 NUCJ 22

Date: 20170922
Docket: 15-16-41
Registry: Iqaluit

Crown: Her Majesty the Queen

-and-

Accused: Cedric Ookowt

________________________________________________________________________

Before: The Honourable Mr. Justice Earl D. Johnson, Deputy Judge

Counsel (Crown): I. Nault

Counsel (Accused): J. Morton

Location Heard: Iqaluit, Nunavut

Date Heard: September 22, 2017
Matters: Criminal Code, RSC, 1985, c C-46, s 244; Canadian
Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (UK),
1982, c 11, s 12.

REASONS FOR JUDGMENT

(Delivered Orally)

(NOTE: This document may have been edited for publication)

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I. INTRODUCTION

[1] The accused, Cedric Ookowt, entered a guilty plea to the charge
that he did on June 29, 2016, in Baker Lake intentionally discharge
a firearm at a place while being reckless as to whether another was
present at that place, contrary to section 244.2(1)(a) of the Criminal
Code, RSC, 1985, c C-46 [Criminal Code]. He also entered guilty
pleas to dangerous driving on April 28, 2016 in Baker Lake under
section 249(1)(a) of the Criminal Code and to evading a police
officer under section 249.1(1) of the Criminal Code.

[2] I conducted a Gardiner type sentencing hearing that included some

viva voce evidence by the accused that supplemented his affidavit
sworn on January 28, 2017. The Crown filed a binder of
sentencing materials. It included the following: an undertaking on
which the accused was in regard to the dangerous driving and
evading police charges; statements of the accused, Kenneth
Arngnanaaq, Arnold Arngnanaaq and other witnesses; and, finally,
photographs and a pre-sentence report.

[3] The Crown agreed that the sentence for the dangerous driving and
evading police charges should be concurrent to the section 244 of
the Criminal Code four-year minimum sentence.

[4] A conviction under section 244 of the Criminal Code requires this
Court to impose a mandatory minimum punishment (MMP)
sentence of four years in jail. Defence Counsel filed a Notice of
Constitutional Challenge arguing that the MMP required is grossly
disproportionate to the sentence that would have been imposed if
the standard sentencing principles of the Criminal Code were
applied to the facts of this case and as a result is a cruel and
unusual punishment as prohibited by section 12 of the Canadian
Charter of Rights and Freedoms, Part I of the Constitution Act,
1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11
[Charter].

[5] The Crown submitted that the sentence I should impose is the four-
year minimum sentence. Defence Counsel submitted that the
application of the Criminal Code sentencing principles should result
in the imposition of a sentence in the 18-month to two years less
one day range. To impose this sentence, this Court will have to
find that the four-year MMP for this charge is contrary to section 12
of the Charter.
 3

II. LAW

[6] Section 244.2(1)(a) of the Criminal Code came into force on

October 2009 as a new nominate offence. There is no predecessor
to it. The applicable MMP provision was concurrently enacted as
section 244.2(3)(b). For many years preceding the enactment of
section 244.2, courts consistently upheld four-year MMP sentences
for firearm-related offences. In R v Birchall, 2001 BCCA 356, 158
CCC (3d) 340, the British Columbia Court of Appeal affirmed the
constitutionality of a four-year MMP for manslaughter. In R v
Morrisey, 2000 SCC 39, [2000] 2 SCR 90 [Morrisey], the Supreme
Court of Canada confirmed the four-year MMP for criminal
negligence causing death with a firearm as compliant with section
12 of the Charter.

[7] The courts of appeal for Manitoba and British Columbia are the
only appellate courts that have addressed the constitutionality of
section 244.2(3)(b) of the Criminal Code. Both have upheld the
MMP as constitutional, reversing lower court trial decisions.

[8] In R v Oud, 2016 BCCA 332, 339 C.C.C. (3d) 379 [Oud], the
offender was a 35-year-old non-indigenous Canadian with a lone
impaired driving conviction on his record. He was a cocaine addict
and while intoxicated one night he sought to “make a point” by firing
seven shots into a drug house after the occupants ripped him off in
an unsuccessful drug deal. One bullet grazed the cheek of an
occupant, while the other six bullets lodged into the structure of the
house without harming anyone. The lower court found the MMP
unconstitutional but the finding was reversed in the court of appeal.

[9] In R v McMillan, 2016 MBCA 12, 326 Man R (2d) 56 [McMillan], the
19-year-old non-indigenous offender had been subjected to
significant bullying over the course of a year. He retaliated against
the person he thought was responsible for the graffiti that appeared
on the town’s Post Office identifying and mocking him. The
offender fired six shots at the target’s home. Four of the bullets
went through the window, narrowly missing the residents within.
The Manitoba Court of Appeal reversed the lower court finding that
the MMP violated section 12 of the Charter.

[10] The analytical framework under section 12 has evolved. It is set out
in R v Smith [1987] 1 SCR 1045, 15 BCLR (2d) 273 [Smith]; R v
Goltz [1991] 3 SCR 485, 61 B.C.L.R. (2d) 145; Morrisey; R v
 4

Ferguson, 2008 SCC 6, [2008] 1 SCR 96; R v Nur, 2015 SCC 15,
[2015] 1 SCR 773 [Nur]; and R v Lloyd, 2016 SCC 13, [2016] 1
SCR 130 [Lloyd].

[11] As set out in paragraph 86 in Smith, the test is whether or not the
punishment is “so excessive as to outrage standards of decency”.
In order to establish that a particular sentencing provision gives rise
to cruel and unusual punishment contrary to section 12 of the
Charter, the punishment must be shown to be grossly
disproportionate.

[12] In Nur, the Supreme Court of Canada clarified the analytical

framework to apply when a court considers a section 12 Charter
challenge. First, the court must undertake a particularized inquiry
into the circumstances of the individual offender. Second, the court
must take into account the application of the MMP in reasonably
foreseeable cases.

[13] At the first stage, the court must consider whether the impugned
sentencing provision is grossly disproportionate to the individual
offender. This involves a particularized inquiry into the appropriate
sentence in the circumstances and a determination of whether the
MMP is grossly disproportionate to that specific offender.

[14] In considering whether the MMP is grossly disproportionate to the

sentence that would have been imposed in a standard sentencing
of the accused person before the court, four factors must be
considered:

 the gravity of the offence;

 the personal characteristics of the offender and

the circumstances of the offence;

 the actual effect of the punishment on the

offender; and
 the penological goals and sentencing principles
underlying the sentence.

[15] No single factor alone will necessarily be determinative of the

question of gross disproportionality. If the impugned sentencing
provision is not shown to be grossly disproportionate in its
application to the particular offender, the court must move on to the
 5

second stage of the analysis.

[16] At the second stage, the court must consider whether the
impugned provision is grossly disproportionate when applied to
reasonably foreseeable cases.

[17] In Nur, the court ruled that a three-year MMP for unauthorized
possession of a prohibited or restricted firearm violated section 12
of the Charter. The court reasoned that the MMP captured a wide-
range of potential conduct that included offenders who would be
minimally blameworthy because they had merely made a mistake.
While most offenders would merit the MMP, including the accused
in the case before the court, when applied to the reasonably
foreseeable case of an offender who commits a mere licensing
offence and inspires no real risk to public safety, the Supreme
Court found that the MMP would result in a grossly disproportionate
sentence.

[18] As noted in R v Appulonappa, 2015 SCC 59, [2015] 3 SCR 754,

the reasonable hypothetical inquiry under section 12 is similar to
that a court employs when considering a constitutional challenge to
legislation on the freedom of speech grounds under section 2(b) of
the Charter or the overbreadth analysis under section 7 of the
Charter. In each of these cases, the court is simply asking:

1) what is the sweep or reach of the law; and

2) is the law constitutional in these foreseeable
cases.

[19] In R v Vu, 2015 ONSC 5834, [2015] OJ No 5278, a recent post-Nur

decision, Durno J. struck down a three-year MMP relating to the
production of marijuana.

[20] In R v Shobway, 2015 ONCJ 457, 2015 CarswellOnt 12662

[Shobway], the court struck down a section 99(2)(a) of the Criminal
Code that imposed a three-year MMP for the unauthorized transfer
of a restricted firearm. As in Nur, the court held that it was
reasonably foreseeable that this provision would capture conduct at
the lower end of the spectrum of moral blameworthiness and in
such cases would amount to a grossly disproportionate sentence.

[21] In the event that this Court finds that the sentence is grossly
disproportionate or offends one of the reasonable hypotheticals, the
 6

Crown may make submissions on the application of section 1 of the

Charter. Both counsel agreed that if this aspect of the analysis
becomes a live issue, it would be argued at a later date.

III. THE FACTS

[22] The accused is an Inuk who was born on January 1, 1997. He was
19 at the time of the offence and is now 20. Prior to this incident he
had no criminal record.

[23] He was raised by his parents and is the middle child of five
children. He has a close relationship with his family and siblings.
He indicated in the pre-sentence report that he never experienced
any physical abuse while growing up. However, his father was an
alcoholic who drank regularly and would frequently pass out while
watching movies or listening to music. His mother similarly
indicated that the accused grew up in a healthy, loving and
supportive family home. He was raised in a traditional lifestyle that
included camping, hunting, fishing and the maintenance of a dog
team. His mother also indicated that the accused was always very
helpful to the family and was very good at repairing bicycles and
small engines. She admitted that her husband occasionally drank
alcohol but did not think that he abused it.

[24] The accused quit school when he was in Grade 11 or 12 to pursue

a hunting lifestyle. He can read and write in English, but cannot do
so in Inuktitut, although he can speak and understand it and uses it
when he speaks with elders.

[25] The accused has not participated in the wage economy but has
earned money from harvesting and selling animal furs. He used
the money he earned to purchase a snowmobile with his mother’s
assistance. When the snowmobile arrived about four years ago,
the accused quit school and started living a traditional lifestyle of
hunting and fishing. The accused, his father and elder brother
support the immediate family with traditional food.

[26] The accused admitted to drinking alcohol since he was 17 and to

starting by stealing the remains of bottles from people who had
passed out. His alcohol consumption increased in 2016, after a
good friend committed suicide.
 7

[27] On the early morning of June 16, 2016 he and a friend, Richard,
started drinking when they were out on the land. The accused
testified that he had three 40 ounce bottles of whisky with him and
they had consumed two of them when Richard dropped him off
later in the day, around 6 p.m., at the home of Kenneth
Arngnanaaq. Kenneth was Arnold Arngnanaaq’s uncle and Arnold
lived with him. The accused testified that he was walking on the
street when he was jumped by Arnold because Arnold wanted his
alcohol. Arnold physically attacked him and punched him in the
face while he was walking. Arnold admitted in his statement that
he beat him up a little. Richard saw a fight outside and near
Kenneth’s house and helped to break it up some time between 6
and 8 p.m. Richard heard the accused say he was going to get a
gun.

[28] The accused testified that he was highly intoxicated and

experienced a blackout from the drinking bout. He put himself at
10 on a scale of one to 10. Despite the high level of intoxication,
the accused was able to walk home to retrieve his father’s 2250
calibre rifle and position himself on a hill overlooking Kenneth’s
house. He was anxious and upset and feared for his security.

[29] The hill overlooked a number of houses. Kenneth’s house had four
windows facing the hill.

[30] The accused then fired one shot from the rifle into the window that
was furthest to the left from his vantage point. Kenneth was in his
living room watching television when the bullet shattered the
window and missed him by a few inches. Arnold was not in the
home.

[31] The accused did not intend to physically harm anyone and was not
aware if anyone was in the house.

[32] The accused testified that Arnold regularly bullied him since he was
12 or 13. He said the bullying increased in the year before the
incident and took the form of verbal abuse and some shoving and
pushing. Arnold denied the bullying in his statement and in cross-
examination the accused was vague and did not provide many
particulars.

[33] At the first paragraph on page seven of the pre-sentence report, the
community corrections officer indicated that the accused’s mother
 8

learned from his friends while he was in custody that Arnold had
bullied him regularly in the year before the shooting. Arnold would
verbally attack and belittle the accused from his vehicle as the
accused walked home. This bullying coincided with increased
requests by the accused to be driven to sporting events in the
community that his mother wondered about. It started to make
sense after she heard about the bullying.

[34] Although the accused was a little vague in describing the earlier
bullying, I am satisfied that Arnold regularly bullied the accused in
the year before the shooting. I also accept the accused’s
uncontradicted evidence that Arnold provoked the fight by trying to
steal his alcohol. Arnold was also much older and much bigger
than the accused and beat him up in the fight.

[35] At the time of the shooting, the accused was on an undertaking to

keep the peace and to abstain from alcohol with regard to the
dangerous driving and evade police charges.

IV. POSITIONS OF THE PARTIES

A. Crown

(i). Gravity of the offence

[36] The Crown noted the statement in Morrisey that this Court should
consider the gravity of the offence generally, rather than the
particular circumstances of the accused. This involves an
assessment of the mens rea of the offence rather than the
offender’s motive or general state of mind. As stated in paragraph
36 of Morrisey, the Court must “attribute greater moral
blameworthiness to those who knowingly break the law than those
who do so unintentionally”.

[37] To satisfy the constituent elements of section 244.2(1)(a) of the

Criminal Code, the offender must intend to discharge a firearm at a
place knowing or being reckless as to whether another person was
present at that place. As noted in Oud, this double mens rea
requirement ensures that the provision is narrow enough in scope
to capture only circumstances where there is a substantial moral
culpability and significant risk of harm or death. As noted in Nur,
 9

this is not a provision that “captures conduct that falls short of true
criminal conduct.”

[38] As noted by Kilpatrick J. in R v Utye, 2013 NUCJ 14, 2013

CarswellNun 19 [Utye], the fact that nobody was injured does not
significantly reduce the gravity of the offence.

[39] As stated in McMillan, the offence is made graver by the accused

having shot into a personal residence.

(ii.) Personal circumstances of the offender and circumstances

of the offence

[40] As noted in McMillan, it is well established that denunciation and

deterrence are the paramount sentencing principles in firearm-
related offences. Personal factors are relevant but are to be given
less weight.

[41] Since the accused is Inuk, he is entitled to the sentencing

consideration pursuant to the framework established in R v Gladue
[1999] 1 SCR 688, 133 CCC (3d) 385 [Gladue], and R v Ipeelee,
2012 SCC 13, [2012] 1 SCR 433 [Ipeelee]. However, as Sharkey
J. pointed out in a similar case of R v Geetah, 2015 NUCJ 10 at
para 162, 2015 CarswellNun 8 [Geetah], this imperative “should not
be taken as requiring an automatic reduction of a sentence of an
otherwise warranted sentence”, particularly in circumstances of
violent crime.

[42] The facts and personal circumstances of the accused are

remarkably similar to the second hypothetical considered in Oud,
which was not modelled on the McMillan case then pending appeal.
Nevertheless, the court found the MMP was not grossly
disproportionate.

[43] The Crown disputes that Arnold bullied the accused. However,
even if this claim is accepted by the Court, McMillan is clear that it
has little mitigating effect on the sentence.

[44] The premeditated and planned nature of the accused’s conduct is

an aggravating factor as noted in Utye. As in Utye¸ the accused
was an experienced hunter who chose a site overlooking the target
with a good vantage point. As a hunter, he knew the power and
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destructive potential of this firearm. The precision of the shot from

such a significant distance with a single bullet suggests the
accused is an excellent marksman.

[45] It is also an aggravating factor that the accused was bound by

conditions of an undertaking. He was bound to keep the peace and
be of good behaviour and to abstain from the consumption of
alcohol. Despite these obligations, he was intoxicated when he
fired the shot, as was the accused in Utye. However, he was not so
intoxicated that he was unable to load, aim and fire the rifle with fair
precision on the target.

(iii). The actual effect of the punishment on the offender

[46] The four-year term of custody in a penitentiary is a very serious

sentence and does not in itself constitute a cruel and unusual
punishment. As noted in Morrisey, the imposition of an MMP does
not exclude typical sentence reductions such as those
contemplated by the parole eligibility regime and routine deduction
of pre-trial custody. These options mitigate the harshness of such
a sentence.

[47] The accused is young and this is his first time in a custodial
institution. These factors are to be considered when assessing the
total impact of the sentence.

(iv). The penological goals and sentencing principles

underlying the sentence

[48] As noted in McMillan and Nur, denunciation and deterrence are the
most important sentencing considerations in firearm-related crimes.
In R v Lyta, 2013 NUCA 10, 561 AR 146 [Lyta], the Nunavut Court
of Appeal held that prevalence of a particular offence in a particular
area was a relevant sentencing factor. As Bychok J. recently
stated in R v Mikijuk, 2017 NUCJ 2 at para 49, 2017 CarswellNun 3
[Mikijuk], firearm-related crime is far too prevalent in Nunavut and it
is important to send a message about firearm safety and its
responsible use.
 11

[49] As established in Utye, Lyta, Geetah and Mikijuk, the range of

sentence for this type of offence in Nunavut is between four and
seven years.

B. Defence:

[50] Defence Counsel did not challenge the arguments advanced by the
Crown on the gravity of the offence or the penological goals and
sentencing principles underlying the sentence. Instead, the
Defence Counsel focused on the application of Gladue and Ipeelee
to the facts of this case.

[51] The Counsel submitted that the confrontation with Arnold—where

the accused was beaten up—was evidence of provocation in the
non-legal sense. It explains the accused’s conduct, but does not
justify it. There was also regular bullying in the year before the
incident and Arnold is older and much bigger than the accused.

[52] As noted in the pre-sentence report, the accused was very

intoxicated at the time of the incident and regrets what he had
done. There is a history of alcohol abuse by the accused’s father
and the accused began drinking at a young age. His best friend
committed suicide in 2015 and since that event the accused’s
drinking has spiralled out of control.

[53] As stated in the pre-sentence report, the accused was raised in a

home that actively pursued a traditional lifestyle of camping, fishing
and hunting. Although he never finished high school, the accused
has developed skills that have permitted him to generate some
income. He regularly sells pelts to the Department of Environment
and he can fix bicycles and small motors.

[54] The accused has a good relationship with his mother in Baker Lake
and his aunt in Ottawa. He has family support and is a strong
candidate for rehabilitation.

[55] Although not employed in the wage economy, the accused has not
wasted his time sitting at home watching television. He has put his
traditional skills to use and has generated income through the sale
of furs from animals he has trapped and from selling game he has
killed.
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[56] In summary, he is a young aboriginal with no record who entered

an early guilty plea and presents as a good candidate for
rehabilitation. As a result, he has satisfied the Ipeelee factors that
would justify the imposition of a significantly lesser sentence than
the harsh four-year MMP. In all of the circumstances, a sentence
of 18 months to two years less a day would be appropriate and the
MMP at double that length is grossly disproportionate.

[57] The tests enunciated in Nur are satisfied. The MMP for the offence
that the accused committed covers a wide range of conduct and his
conduct in this case is less blameworthy.

V. ANALYSIS

[58] The evolution of the case law has clarified most of the issues
regarding the interpretation of the MMP legislation directed at
firearms. The legislation concerns both the regulation and use of
firearms. Those sections directed at the regulation of firearms—as
was the case in Nur and Shobway—have not survived a section 12
Charter challenge. However, provisions directed at the use of
firearms—such as section 244 of the Criminal Code—have
survived challenges.

[59] As noted by the British Columbia Court of Appeal at paragraphs 32

and 33 of Oud, the rationale behind the different results comes
from the analysis in Lloyd and McMillan that concludes this section
is sufficiently specific and does not cast an overly-broad net
because of the double mens rea requirement. It was not
challenged in the Nunavut cases of Lyta, Utye, Geetah or Mikijuk
because the facts were on the high-end of the moral culpability
scale, with multiple shots fired in all cases. A four-year sentence
was justified in all cases regardless of the MMP.

[60] In this case, only one shot was fired and the accused is a youthful
first time offender. Although the facts of this case clearly fall within
the ambit of section 244 of the Criminal Code, Defence Counsel
advances a compelling argument that the sentence imposed
without the MMP would have been two years less one day and that,
in this case, the imposition of the MMP would constitute a cruel and
unusual punishment under section 12 of the Charter.
 13

[61] Defence Counsel argues that the bullying experienced by the

accused moves his conduct lower down on the scale of moral
culpability. The Crown argues that the bullying is irrelevant.

[62] The Defence’s argument was rejected by the Manitoba Court of

Appeal in McMillan. At paragraphs 24 and 25, the Court held that
the bullying had little mitigating value because the accused’s
actions were not a sudden or spontaneous lashing out and
because the premeditated violence was completely
disproportionate to the bullying he had suffered.

[63] Clearly, the accused’s actions in this case were completely

disproportionate to the bullying he had suffered and he did not
spontaneously lash out. However, I do not accept the Crown’s
submission that the bullying was irrelevant. The Court in McMillan
accepted that bullying was a form of intimidation and abuse that
was relevant to the sentencing. However, when dealing with a
serious offence like shooting into a house, the primary focus should
be on the offender’s conduct rather than on his personal factors.
The bullying and the attempt to steal the alcohol should be given
less weight, but these factors are relevant.

[64] The accused in McMillan was the same age as Mr. Ookowt and
was on probation at the time of the offence. However, he had no
previous convictions for crimes of violence. The Trial Judge
imposed a one-year jail term. The Court of Appeal was persuaded
the sentence was demonstrably unfit when compared to the 40-
month sentence imposed in Nur and the 60-month sentence in Lyta
and found a fit and proper sentence was 48 months.

[65] In Oud, the Trial Judge felt that a four years was a fit and
appropriate sentence, but found the MMP was unconstitutional as a
result of the reasonable hypothetical analysis. In all of the Nunavut
cases, the courts have applied the MMP or imposed higher
sentences for far more serious shooting incidents.

[66] The sentencing in this case raises the issue of whether there is
room for a sentence below the four-year plateau set by these
cases. It is arguable whether one shot is any less dangerous than
many shots. The hypothetical considered in Oud was remarkably
similar to the facts in this case. At paragraph 28, the Court of
Appeal noted the hypothetical posed by the Trial Judge as follows:
 14

“In this hypothetical an 18-year-old man with no related

criminal record fires a single shot into a house with a non-
restricted, non-prohibited firearm for which he has a permit. He
believes the house is unoccupied but is reckless as to whether
anyone is present and in fact persons are present, although
there is no actual endangerment of people and no injury is
caused to the occupants. The shooting is unrelated to drugs or a
criminal organization, but rather is motivated by the offender’s
desire to ward off or intimidate persons who have bullied the
offender.”

[67] In rejecting the Trial Judge’s analysis on this hypothetical, the Court
of Appeal stated at paragraph 38:

“The bullying hypothetical discussed by the judge, in my view,

cannot be adequately distinguished from the central premise of
the offence, which is that the intentional discharge of a firearm,
knowing or being reckless whether others are in the place
targeted, is highly dangerous behaviour that will attract a stern
response. This premise is a statement of values and behaviour
for all landscapes of Canada, both urban and rural. I do not
consider the hypothetical offence is differentiated from the
harm intended to be addressed — there is no small offence
encompassed by the double mens rea of s. 244.2.”

[68] As Bychok J. noted at paragraph 48 in Mikijuk, firearm related

crime is far too prevalent in Nunavut and these comments from the
Court of Appeal are equally applicable to Nunavut.

[69] The one shot fired by the accused missed Kenneth by inches. This
fact is not a mitigating factor, but it permits the accused to avoid the
further aggravation of multiple shots. As noted by dissenting
Slatter J. at paragraph 47 of Lyta: “multiple shots are a further
aggravating factor.”

[70] Because of the bullying, intoxication and firing of only one shot, I
am satisfied that the accused is lower down the scale of moral
blameworthiness than the accused persons in other Nunavut
cases. The accused entered an early guilty plea and is remorseful
about what he had done.

[71] The major difference between the McMillan hypothetical and this
case is that the accused is aboriginal and is therefore entitled to
sentencing consideration pursuant to the framework established in
 15

Ipeelee and Gladue. I am satisfied that a fit and proper sentence

would be less than four years before this analysis.

[72] As Bychok J. stated at paragraph 16 in Mikijuk,

“In fact, the Nunavut Court of Justice is a Gladue court. We

serve all Nunavummiut. To make a long explanation short, our
court must account for the unique circumstances of the Inuit
people, their history, and society. And, importantly today, how
this reality has had an impact on Mr. Mikijuk.” [Emphasis
original]

[73] As directed by the Supreme Court of Canada in Gladue and

Ipeelee, the first step in sentencing an aboriginal person is to look
at systemic and background factors that may bear on the culpability
of the offender to the extent that they shed light on his or her level
of moral blameworthiness.

[74] The pre-sentence report indicates that in many ways Mr. Ookowt
had a better upbringing than many young Inuit who have appeared
before me over the years. At page one, paragraph five, the report
says Mr. Ookowt was raised in a good family home structure and
had participated in traditional hunting with his father from an early
age. He continues to practice a hunting lifestyle. He is a skilled
hunter and provides food to his family and other elders in the
community. He also generates money from the sale of furs. In
fact, he left Grade 11 or 12 to pursue this lifestyle and has been
very helpful to his family and the community.

[75] Unfortunately, alcohol abuse mentioned by Bychok J. at paragraph

19 of Mikijuk was also present in this family. The accused’s father
appears to have abused alcohol and, not surprisingly, the accused
also developed the same problem. He started by drinking alcohol
from the glasses of people who had passed out at parties. It then
accelerated when he tried to deal with the painful feelings caused
when his best friend committed suicide. Alcohol abuse was a major
factor in this shooting. The accused had three 40-ounce bottles of
vodka when he started the drinking bout that led to the shooting.
He started drinking on the morning of the day of the shooting and
continued drinking all day with a friend. The fight with Arnold,
coupled with the prior bullying and the accused’s level of
intoxication, tripped the switch in his brain that he had to send a
message to Arnold by firing the shot.
 16

[76] I must take these circumstances into account to ensure that the
sentence must be proportionate to the gravity of the offence and
the degree of responsibility of this offender.

[77] These principles are also to be applied to the more serious crimes
that require a denunciatory sentence. The Supreme Court stated
at paragraph 84 of Ipeelee:

“The second and perhaps most significant issue in the post-

Gladue jurisprudence is the irregular and uncertain application
of the Gladue principles to sentencing decisions for serious or
violent offences. As Professor Roach has indicated, ‘appellate
courts have attended disproportionately to just a few
paragraphs in these two Supreme Court judgments —
paragraphs that discuss the relevance of Gladue in serious
cases and compare the sentencing of Aboriginal and non-
Aboriginal offenders.’ (K. Roach, “One Step Forward, Two
Steps Back: Gladue at Ten and in the Courts of Appeal”
(2009), 54 Crim. L.Q. 470, at p. 472).”

[78] The Gladue passage that received this unwarranted emphasis is

the observation that:

“[g]enerally, the more violent and serious the offence the more
likely it is as a practical reality that the terms of imprisonment
for aboriginals and non-aboriginals will be close to each other
or the same, even taking into account their different concepts of
sentencing.” (Gladue at para 79; see also R v Wells, 2000 SCC
10 at paras 42-44, [2000] 1 SCR 207)

[79] Numerous courts have erroneously interpreted this generalization

as an indication that the Gladue principles do not apply to serious
offences (see, e.g. R v Carrière (2002), 2002 CanLII 41803
(ONCA), 164 CCC (3d) 569 (Ont CA)).

[80] I am satisfied that the accused is a good candidate for rehabilitation

and can build on the work he has started at the Baffin Correctional
Centre. While incarcerated, he has taken courses on substance
abuse and healthy relations. I can take into account these Gladue
factors to temper the usual deterrent sentence for this type of
crime. Under all the circumstances of this crime and this accused, I
am satisfied that a sentence of two years less a day would be the
appropriate one.
 17

[81] It follows that the application of the MMP in this case will result in a
sentence that is double the appropriate sentence. As a result, I am
satisfied that it would result in a grossly disproportionate sentence
and I find that section 12 of the Charter is breached in this case.

VI. CONCLUSION

[82] I will, therefore, impose the appropriate sentence of two years less
one day.

[83] The Crown agrees that the sentences for dangerous driving and
evading police should be served concurrently. I sentence Mr.
Ookowt to three months concurrent on the dangerous driving and
one month concurrent for evading police.

[84] I have calculated the credit at the rate of 1.5 days for each day of
pre-sentence custody, resulting in a total credit of 675 days.
According to my calculations, that leaves another 54 days in
custody, but I will leave that up to the prison authorities to figure
out.

[85] In addition, I am going to place the accused on probation for a

period of 12 months on the following conditions:

 To report to probation services in Baker Lake

within three days of his discharge from
imprisonment and thereafter as required by
probation;

 To carry out 50 hours of community service;

 To abstain absolutely from the consumption of

alcohol;

 To take counselling as recommended by the

probation officer for alcohol abuse;

[86] I impose a 10-year weapons prohibition and I will recommend an

exemption under section 113 of the Criminal Code.
 18

[87] I impose a Victim Fine Surcharge of $400 and I will give the
accused two years to pay for it.

[88] I will make a DNA order.

[89] Finally, I order that the weapon seized be forfeited to the Crown.

[90] Mr. Ookowt, I have sentenced you to a term in Nunavut. You are
very, very fortunate that you are not going to a penitentiary.

[91] What you did was very, very serious. You almost killed someone. I
want you to remember that for the rest of your life.

[92] I know you are a very good hunter. I know you are good with
weapons, but I want you to understand the dangers of mixing
alcohol and weapons. Unfortunately in Nunavut we have many
cases where young people like you drink and then use weapons
and cause harm to the community. I have had many cases where
young men have fired at the police houses and there have been
response teams that held the whole town in agony for periods of
time. So you make sure in the future to be very careful about
mixing alcohol and weapons.

[93] I hope you continue to work on your rehabilitation. I think it is very

important for you to stay away from alcohol, but I cannot force you
to do that. Alcohol got you into this offence — remember that and
continue to work on your rehabilitation. I hope that you can put this
behind you, remember this in the future and not come back to
court.

[94] I thank counsel for their thorough work and arguments in this case.

Dated at the City of Iqaluit this 22nd day of September, 2017

___________________
Justice E. Johnson
Nunavut Court of Justice