Focus On

SENTENCING - Weapons offences - Maximum or minimum sentence available

Monday, July 13, 2020 @ 9:10 AM  

Lexis Advance® Quicklaw®
Appeal by the Crown from sentence of two years’ imprisonment less one day and 18 months’ probation for intentionally discharging a firearm at a place and from the declaration that the mandatory four-year sentence was unconstitutional. In reaction to and in furtherance of a dispute with his domestic partner, the respondent, 24, fired a loaded rifle at a home he knew to be occupied. The single bullet exited the roof and caused no injuries. The respondent pleaded guilty. He had no prior record. The sentencing judge focused on the fact that firearm-related violence was extremely serious and found the offence to be highly dangerous behaviour. The sentencing judge found mitigation in the respondent’s early guilty plea, his acceptance of responsibility and remorse upon arrest, that the complainant forgave him and that he did not have a criminal record. The sentencing judge concluded that the four-year mandatory minimum was far removed from the least restrictive sentence required and violated the principles of proportionality, parity, rehabilitation and restraint. He found that if he imposed the mandatory minimum it would be considered intolerable by fair minded Nunavummiut.

HELD: Appeal allowed. The minimum sentence was imposed. The sentence imposed by the trial judge was a disproportionate, unfit sentence. The double mens rea requirement in s. 244.2 of intentionally discharging a firearm with knowledge or recklessness as to whether others were present meant the offender had an elevated moral blameworthiness. Denunciation and deterrence were primary considerations and factors personal to the offender were to be given less weight. The domestic nature of this offence was aggravating as were the deliberateness of the respondent’s conduct and the prevalence of firearm-related offences in Nunavut. This offence was explicitly premeditated. The sentencing judge’s determination that gang-related gun violence on the streets of Vancouver was qualitatively more serious than gun violence in Nunavut that occurred in the context of a domestic relationship was a substantial error which materially impacted the sentencing judge’s proportionality assessment. A further error by the sentencing judge was reflected in his comment that penitentiaries were reserved for murderers, serial offenders and hardened criminals. The respondent’s moral blameworthiness in committing the offence did not change because his domestic partner forgave him. The sentencing judge elevated the importance of Inuit social justice concepts in respect of the forgiveness factor to a materially erroneous degree. The Gladue factors in this case did not operate to significantly diminish the high level of moral culpability underlying this offence. The conduct caught under s. 244.2 of the Criminal Code must attract a consistent response commensurate with Parliament’s deterrent objective. Four years was in the range of a fit and proportionate sentence for the respondent’s conduct. A penitentiary sentence in the range of four years was the valid and appropriate means by which the law’s denunciatory and deterrent objective could be achieved. Sentence: Four years’ imprisonment.

R. v. Itturiligaq, [2020] Nu.J. No. 25, Nunavut Court of Appeal, K. Shaner, F. Schutz and S. Greckol JJ.A., June 5, 2020. Digest No. TLD-July132020001