Criminal Law

Gun crime mandatory minimums interfere with Gladue principles: Dale

By Staff

A Nunavut decision shows mandatory sentences for gun crimes inappropriately constrain judges when dealing with Aboriginal offenders, Toronto criminal and civil litigator Laurelly Dale tells

The fact pattern of the case rings a number of bells for Dale, who frequently acts for youthful Aboriginals charged with gun-related offences involving weapons normally used for hunting.

The judge in the case declared the four-year mandatory minimum for intentionally discharging a firearm under s. 244.2 (1)(a) of the Criminal Code unconstitutional.

Calling the mandatory minimum regime “a perpetuation in Nunavut of last century’s systemic colonialism and discrimination," Judge Paul Bychok found the baseline penalty in the case undermined the ability of the courts to apply Gladue principles and violated s. 12 of the Charter, which protects Canadians from cruel and unusual punishment.

Instead, he handed the defendant, a 24-year-old Inuk born and raised in Nunavut, a sentence of two years less a day in jail.

Dale, principal of Dale Legal Firm, says the decision was well-written, and she will be watching to see if it is appealed to a higher court.

“This case shows how mandatory minimums essentially strip away judicial discretion and prevents them from looking at factors such as the Gladue principles and proportionality,” she says.

On one recent trip to a reserve near Fort Severn, Ontario’s most northern community, she was in town to represent a client.

“We were down on Hudson Bay looking at a washed up dead whale when she told me we’d have to leave immediately,” Dale says. “I asked why and she pointed to a white dot on the horizon. ‘That’s a polar bear, and I don’t have my shotgun,' she told me.

“It was an interesting reminder of the purpose of these firearms in Aboriginal communities, especially when you’re on isolated northern reserves, where it can be your only protection,” Dale adds.

The accused in the Nunavut case ran into trouble in early 2018 when he arrived to pick up his girlfriend from the house of a friend. When she refused to leave, he fired a shot with his hunting rifle at the roof of the house, prompting a call to the police.

The man pleaded guilty to intentionally discharging a firearm at a house knowing that it was occupied, although he said the shot was not aimed at anyone, and no one was injured.

Considering all factors, including the circumstances of the accused, Bychok determined that jail time was appropriate given the seriousness of the crime, the community’s recent spate of gun violence, and his violation of Inuit social values, which also recognize a form of banishment as a suitable punishment.

But the judge commented that consideration had to be given to the fact this was a first-time offender with “real potential for rehabilitation.”

“The restraint principle is a constitutional requirement which must be given more than mere lip service,” Bychok added. “Given the history of recent gun-related violence in Kimmirut, and its domestic context, the appropriate and least restrictive sentence, in this case, would be two years less a day in jail followed by probation for two years.”

The four-year mandatory minimum violated s.12 of the Charter for being “grossly disproportionate,” in part because it could only be served in a federal penitentiary thousands of kilometres away, he said.

“To send [the offender] to a southern penitentiary in these circumstances would indeed outrage Nunavummiut’s collective and traditional sense of decency and justice,” Bychok concluded.

“It was a brave decision,” Dale says.

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