Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: R. v. Irkootee, 2018 NUCJ 32

Date: 20161106
Docket: 18-16-141
Registry: Iqaluit

Crown: Her Majesty the Queen

-and-

Accused: Sigurdson Irkootee

________________________________________________________________________

Before: The Honourable Mr. Justice Earl Johnson

Counsel (Crown): Philippe Plourde

Counsel (Accused): Alison Crowe

Location Heard: Iqaluit, Nunavut

Date Heard: July 20, 2018
Matters: Application to have Section 99 (2) Criminal Code, RSC
1985, c C-46, declared of no force of effect for Mr.
Irkootee. The application is granted.

REASONS FOR JUDGMENT

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

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Table of Contents

I. INTRODUCTION ...................................................................................................... 3
II. ISSUES ....................................................................................................................... 4
III. LAW ........................................................................................................................ 4
IV. ARGUMENTS ......................................................................................................... 6
A. Applicant .............................................................................................................. 6
B. Crown ................................................................................................................... 7
V. ANALYSIS ............................................................................................................... 13
A. Stage 1 Particularized Analysis .......................................................................... 13
i. Gravity of the Offence........................................................................................ 13
ii. Circumstances of the offender and the offence .............................................. 14
iii. Actual effect of the sentence on the applicant ................................................ 14
iv. Penological purpose of the mandatory minimum sentence ............................ 15
v. Existence of valid alternatives to the punishment imposed ............................ 16
vi. Sentencing for other crimes in the same jurisdiction ..................................... 17
B. The MMP requires the imposition of a sentence that is Grossly Disproportionate
18
C. Stage 2 – Reasonable Hypothetical .................................................................... 18
VI. CONCLUSION ...................................................................................................... 19
 3

I. INTRODUCTION

[1] The accused, Mr. Sigurdson Irkootee, entered a guilty plea to one
count of trafficking in a firearm between June 1 and June 29, 2016,
contrary to s. 99 of the Criminal Code, RSC 1985, c C-46 [Criminal
Code].

[2] The facts are admitted by the accused and agreed to by the Crown.

[3] Mr. Irkootee had been drinking while out on the land outside Rankin
Inlet when he broke into a cabin owned by Noah Makayak and stole a
Savage 25-06 rifle. When he sobered up, the accused realized what
he had done and wanted to get the rifle out of his house because of
the danger to his children. The accused sold the rifle to Kastin Simik
who did not have a firearms licence. The firearm was recovered
undamaged and was not used to commit any other crimes.

[4] Section 99(2) carries a mandatory minimum punishment (MMP) of

three years. The accused filed an Application seeking a declaration
that the section is of no force and effect pursuant to s. 52 Canada Act
1982 (UK), 1982, c 11 [Constitution Act 1982]. The applicant claims
that the three year MMP is cruel or unusual punishment contrary to s.
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 applicant admitted to the following previous convictions:

Date Offence Sentence

a) 2010/09/16 s. 264.1 Criminal Code two years’ probation

b) 2010/09/16 s. 87(2) Criminal Code two years’ probation

c) 2012/10/01 s. 266 Criminal Code nine months’ probation

d) 2014/05/05 s. 66 Motor Vehicles fine of $115.00

Act, RSNWT 1988
(Nu), c M-16
 4

e) 2015/01/19 s. 733.1(1) Criminal ten days custody

Code nine months’ probation

f) 2015/03/14 s. 145(3) Criminal ten days custody

Code nine months’ probation

II. ISSUES

[6] The issues before the Court on this application are:

1. Is the three year MMP in s. 99(2) a violation of s.12 of the

Charter that is unable to be demonstrably justified in a free
and democratic society? and,

2. What is the fit and just sentence for this offender?

III. LAW

Criminal Code section 99

[7] Mr. Irkootee is charged under s. 99(2) of the Criminal Code:

99 (1) Every person commits an offence who

(a) manufactures or transfers, whether or not for consideration, or
(b) offers to do anything referred to in paragraph (a) in respect of
… a non-restricted firearm … knowing that the person is not authorized to do so
under the Firearms Act or any other Act of Parliament or any regulations made
under any Act of Parliament.
(2) Every person who commits an offence under subsection (1) when the object in
question is a prohibited firearm … is guilty of an indictable offence and liable to
imprisonment for a term not exceeding 10 years and to a minimum punishment of
imprisonment for a term of (a) in the case of a first offence, three years….

[8] Section 99 was previously declared unconstitutional by the Alberta

Queen’s Bench and the Ontario Court of Justice in R v Friesen, 2015
 5

ABQB 717 (CanLII) [Friesen] and R v Shobway, 2015 ONCJ 457, 124
WCB (2d) 230 [Shobway] amongst other courts.

Constitution

[9] Charter s. 12 states, “everyone has the right not to be subjected to

any cruel and unusual treatment or punishment.”

[10] The Supreme Court of Canada clarified s. 12 in R v Nur, 2015 SCC

15, [2015] 1 SCR 773. The Court held that in order for a violation of s.
12 to be found (at para 46):

…the court must determine what constitutes a proportionate

sentence for the offence having regard to the objectives and
principles of sentencing in the Criminal Code. Then, the court
must ask whether the mandatory minimum requires the judge
to impose a sentence that is grossly disproportionate to the fit
and proportionate sentence. If the answer is yes, the mandatory
minimum provision is inconsistent with s. 12 and will fall
unless justified under s. 1 of the Charter.

[11] The contextual factors used to assess what is grossly

disproportionate are from R v Smith, [1987] 1 SCR 1045 (CanLII), 40
DLR (4th) 435 [Smith], and R v Goltz, [1991] 3 SCR 485 (CanLII),
[1991] SCJ No 90 (QL) [Goltz], R v Morrisey, 2000 SCC 39 paras 27
to 28, [2000] 2 SCR 90 [Morrisey]. No one factor is paramount. The
factors are:

a. gravity of the offence,

b. the personal characteristics of the offender,
c. the actual effect of the punishment on the individual,
d. the penological goals and sentencing principles upon which
the sentence is fashioned, and
e. the existence of valid alternatives to the punishment imposed.

[12] Charter s. 1 requires the government to justify a Charter rights

infringement as being fair in a free and democratic society.

[13] Section 52 of the Constitution Act 1982 provides “any law that is
inconsistent with the provisions of the Constitution is, to the extent of
the inconsistency, of no force or effect.”
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IV. ARGUMENTS

A. Applicant

[14] The applicant argues that the three year minimum sentence set out in
s. 99(2) of the Criminal Code for a first offence is disproportionate to
the seriousness of the conduct of the applicant in this case and leaves
no latitude for the sentencing court to consider mitigating
circumstances and sentencing alternatives.

[15] The applicant submits that s. (99)(2) offends the guarantee against
cruel and unusual punishment set out s. 12 of the Charter and should
be declared of no force and effect with respect to this matter. The
applicant seeks to be sentenced according to the sentencing criteria
set out in s. 718 of the Criminal Code and related provisions.

[16] The applicant cites Friesen for the proposition that s. 99(2) is a
violation of Charter s. 12. Mr. Friesen’s crimes were failing to obtain
the appropriate business licence to transfer or sell firearms from his
business, and being reckless as to whether the deceased possessed
the appropriate licence to acquire or possess a firearm.

[17] The applicant submitted that the facts of the case at bar are more
analogous to those in Friesen than the facts in R v Lewis, 2012 ONCJ
450 [Lewis]. In Lewis, an undercover police officer – posing as a drug
trafficker – contacted Mr. Lewis, who was a drug trafficker. Mr. Lewis
then supplied the undercover police officer with significant amounts of
cocaine, knowing that the buyer was making the purchases for the
purpose of resale. The transactions between the undercover police
officer and Mr. Lewis happened over a number of days and Mr. Lewis
was motivated for further and larger sales of cocaine to the
undercover police officer. The two talked about their illegal business
relationship and the undercover police officer raised some security
issues with Mr. Lewis. Mr. Lewis then told the police officer that he
could get him a “four fifths”, meaning a .45 caliber handgun.

[18] Although the handgun in Lewis was never delivered, the issue was
that the accused was already in the illegal drug business and offered
to supply another person in the illegal drug business with a firearm,
for the purpose of protection. The applicant submits that these facts fit
exactly within the issues articulated in support of the Criminal Code
amendments to s. 99: organized crime, drugs and guns.
 7

[19] The applicant submits that the three year mandatory minimum
sentence is grossly disproportionate to the facts at bar and Mr.
Irkootee’s circumstances and history. The applicant argued that the
court must also consider the application of s. 718.2(e) because he is
Inuk.

[20] The applicant argues that Mr. Friesen’s sentence of a six-month

conditional sentence order is appropriate in this case. In Friesen,
Ouellette J. considered what the appropriate sentence should be after
applying the usual sentencing principles and imposed a six-month
conditional sentence. He based the sentence on Mr. Friesen’s lack of
criminal record, guilty plea, community support and the fact that his
crime was essentially a failure to comply with licensing requirements.

[21] The applicant acknowledges that the facts in this case are more
serious than in Friesen. However, he submits that they are not
sufficiently serious to warrant a mandatory three year sentence. Such
a sentence would be inconsistent with the circumstances of the
offence and the offender as well as the decisions of this Court in R v
Nattar, 1999 CanLII 2440 (NUCJ), R.v Attutuvaa, 2013 NUCJ 10, 295
CCC (3d) 262, and R v Alariaq, 2017 NUCJ 13 (CanLII).

[22] The applicant submitted a one year conditional sentence would be

appropriate under all the circumstances.

B. Crown

[23] The Crown submitted that the imposition of a mandatory three year
imprisonment sentence, on these facts with the aggravating and
mitigating factors and due consideration of R v Gladue, [1999] 1 SCR
688, [1999] 1 SCR 688 [Gladue], and R v Ipeelee, [2012] 1 SCR 433,
[2012] 1 SCR 433 [Ipeelee], is not grossly disproportionate within the
meaning of Charter s. 12.

[24] The Crown submits that s. 99 is part of a broader sentencing regime

including minimum imprisonment terms for a number of firearm
offences. As a manifestation of Parliament’s policy with respect to
firearm offences, the Crown argues that the applicable regime is
entitled to deference under s. 12 of the Charter. The MMP’s are a
 8

“forceful expression of governmental policy in the area of criminal law”

(R v Nasogaluak, 2010 SCC 6 at para 45, [2010] 1 SCR 206).

[25] The Crown argued that according to para 14 of R v Ferguson, 2008

SCC 6, [2008] 1 SCR 96 [Ferguson], and para 24 of R v Lloyd, 2016
SCC 13, [2016] 1 SCR 130 [Lloyd], the phrase “cruel and unusual
punishment” is meant to guard against punishments considered to be
“abhorrent or intolerable”. The Crown argued that three years is
neither abhorrent nor intolerable.

[26] The Crown made submissions on the two part test from Nur and the
factors from Smith, Morrisey, and Goltz.

A. Stage 1 – Particularized Analysis

i. Gravity of the Offence

[27] The Crown pointed the Court to para 36 of Morrisey, arguing that a
court must “attribute greater moral blameworthiness to those who
knowingly break the law than those who do so unintentionally”.

[28] The Crown argued that the requirement of this specific intent as part
of the mens rea enhances the applicant’s moral blameworthiness.
The Crown argued that the wording of s. 99 ensures that the provision
is narrow enough in scope to capture only circumstances where there
is substantial moral culpability. It is not a provision that captures
conduct that falls short of true criminal conduct.

[29] The Crown submits that, regardless of the conduct involved, the
objective gravity is clearly based on the fact that untraceable firearms
are sought after by people with ill intentions. Even if the applicant’s
buyer was an honest citizen with no ill intent, this firearm could have
ended up in the hands of someone who would have used it for
unlawful purposes. The objective or purpose of this offence is to limit
the availability of untraceable firearms.

[30] The Crown argues that the prevalence of firearm offences in a

jurisdiction has to be taken into consideration. This is particularly true
in Nunavut where firearms are widespread and where firearm
offences are unfortunately happening weekly. The Crown cited para
40 of R v Anugaa, 2018 NUCJ 2 (CanLII), for the proposition that
public concerns in a Territory with the highest suicide rate in Canada
 9

mandates that selling firearms to a random person on the street has

to be considered serious.

[31] As a result, the Crown argues that the gravity of the s. 99 offence
must weigh heavily in the assessment.

ii. Circumstances of the offender and the offence

[32] The Crown relies on para 20 of R v McMillan, 2016 MBCA 12, 326 Mn
R (2d) 56 [McMillan], to argue that denunciation and deterrence are
the paramount principles that should be applied in cases of firearm-
related offences with less emphasis on the personal factors of the
applicant.

[33] The Crown agrees that qualitatively the conduct of the applicant was
at the lower end of the spectrum of behaviour encompassed in s. 99,
but that the applicant committed an offence with a high degree of
moral blameworthiness.

[34] The Crown acknowledges that the applicant is entitled to sentencing

consideration pursuant to the framework established in Gladue,
Ipeelee and s. 718.2(e) of the Criminal Code.

[35] The Crown puts forward the following aggravating factors:

(a) The applicant obtained the firearm that he trafficked by

stealing it from a cabin when he was intoxicated and entered
the cabin without legal justification.
(b) The applicant has a criminal record with a prior firearm
offence under s. 87(2).
(c) The prevalence of firearm related offences in Nunavut makes
the trafficking of firearms a very serious offence.

[36] The mitigating factor is the early guilty plea.

iii. Actual effect of the sentence on the applicant

[37] The Crown noted that at p. 513 to 514 of Goltz and para 41 of
Morrisey, the effect of the sentence is not limited to a consideration of
 10

the quantum and duration of the jail term imposed on the offender. It
will also include the nature and conditions under which the sentence
will be served.

[38] The Crown acknowledges that a three year term of custody in a

penitentiary is a very serious sentence. However, the Crown cites
Morrisey para 42 for the proposition that serious sentence does not, in
and of itself, make the sentence cruel and unusual. The imposition of
a MMP does not exclude the typical sentence reductions, such as
those contemplated by parole eligibility and deduction of pre-trial
custody. These factors mitigate against the harshness of such a
sentence.

[39] The Crown acknowledges that the three year imprisonment of the
applicant in a penitentiary outside Nunavut will have an impact on the
applicant.

iv. Penological purpose of the mandatory minimum

sentence

[40] The Crown noted that at para 43 of Morrisey, a sentencing court must
analyze penological factors “to determine whether Parliament was
responding to a pressing problem, and whether its response is
founded on recognized sentencing principles.”

[41] The Crown argued, citing McMillan, that Parliament’s intention was to
give priority to denunciation and deterrence. The Crown submits that
the existence of the MMP in s. 99(2) was Parliament’s response to
pressing and substantial concerns regarding the increase in firearm
violence in Canada. Additionally, crimes involving firearms are treated
with severity in the Criminal Code, i.e., the MMPs on ss. 239, 271,
and 273.

[42] The Crown also argued that at paras 76 to 77 of R v Latimer, 2001

SCC 1, [2001] 1 SCR 3, the Supreme Court stated that parliament is
entitled to make policy choices on the weight to be attached to various
sentencing objectives. At para 46 of Morrisey, the Supreme Court
noted that Parliament is not compelled to enact sentencing provisions
which, “simultaneously pursue all the traditional sentencing
principles.” The weight attached to various sentencing principles may
vary according to the context.
 11

[43] The Crown relies on the recent comments of Bychok J. at para 48 of

R v Mikijuk, 2017 NUCJ 2 [Mikijuk] that “firearm related crime is far
too prevalent in Nunavut.” Trafficking a firearm is not responsible
firearm use. There are also similar comments at para 20 of R v Lyta,
2013 NUCA 10 [Lyta].

[44] Furthermore, the Crown disagrees with the argument advanced at

para 14 of the applicant’s factum, that the MMP exclusively addressed
organized crime, handguns, drug traffickers and gangs. The objective
of the legislation was much wider as can be seen in the later
enactment of the Ending the Long-gun Registry Act, 2012 c 6 s. 11
[ELRA]. The Crown argues, because the ELRA ended the obligation
to register long-guns, sellers now have an obligation to verify that the
buyer has a valid licence. In the absence of the regulations from the
long-gun registry, the rules regarding transfer of firearms are even
more crucial and make the violation of those rules serious offences.

v. Existence of valid alternatives to the punishment

imposed

[45] The Crown submits that a custodial sentence is necessary in this

case. The Crown stated that it would seek a sentence of between
eighteen months and two years less a day.

[46] The Crown also pointed out that the MMP is not the only bar
preventing the imposition of a conditional sentence as it would be
unavailable because of Criminal Code s. 742.1(e)(iii).

vi. Sentencing for other crimes in the same jurisdiction

[47] The Crown acknowledges the lack of comparable cases in Nunavut

for this offence. However, para 48 of Mikijuk and para 20 of Lyta
emphasize that the high rate of firearm crimes in Nunavut requires the
imposition of deterrent and exemplary sentences. At para 17 of
Shobway, the Court estimated the range to be between one and
seven years custody.

[48] Taking all these factors into account, the Crown submits that it cannot
be said that a three year minimum sentence is grossly
disproportionate in the circumstances of this offence. It is a high
sentence that is harsh on the applicant, however, it is not so
abhorrent or intolerable as to reach the threshold of gross
disproportionality.
 12

B. Stage 2 – Reasonable Hypothetical

[49] Relying on p. 515 to 516 of Goltz, the Crown argues that the applicant
has the burden of identifying reasonable hypothetical scenarios in
which the impugned law would give rise to a punishment that is not
just harsh and excessive, but also so grossly disproportionate that it
warrants the extreme remedy of striking down the law. The applicant
did not advance a reasonable hypothetical but adopted the same one
advanced in Friesen.

[50] In Friesen, Ouelette J. adopted the hypothetical advanced in

Shobway. The reasonable hypothetical was a veteran coming back
home with weapons as spoils of war or souvenirs and then
transferring them to family members upon death. The Crown argued
that both judgments seem to ignore the specific rules of the Firearms
Act, SC 1995, c 39 [Firearms Act] such as s. 12(7) regarding
grandfathering provisions allowing such firearms to be lawfully
transferred. As result the reasonable hypothetical in both cases is
unfounded.

[51] The Crown argues that the applicant’s moral blameworthiness of a

charge of trafficking a firearm is higher than possession of an
unauthorized weapon dealt with in Nur. The reason for the higher
level of blameworthiness is because trafficking must be done knowing
that the person cannot transfer the firearm, whereas possession does
not require such a high level of knowledge. The offence in Nur could
be satisfied by a member of a criminal organization possessing a
prohibited weapon for nefarious purposes or by someone who made a
mistake about storage requirements. By contrast, the Crown contends
that the offence in the case at bar is made out only where the offender
intends to traffic the firearm knowing that he cannot do it. This
represents that Parliament has taken steps to ensure that people who
mistakenly sell a firearm without knowing that it is illegal are not
criminalized.

[52] Consequently, the Crown submits that the applicant has not provided
any reasonable hypothetical sufficient to satisfy its burden to show
that the MMP offends s. 12

[53] The Crown submits the application should be dismissed and the
applicant sentenced to three years or 1080 days in jail. In addition, the
 13

Court should impose a lifetime firearm prohibition, Victim of Crime

surcharge of $200 and order the forfeiture of the firearm.

V. ANALYSIS

A. Stage 1 Particularized Analysis

i. Gravity of the Offence

[54] It is unfortunate that the facts in this case were not more nuanced.
The applicant was intoxicated after a day out drinking on the land in
June 2016. He gave no explanation for breaking into the cabin and
stealing the rifle. It was an impulsive irrational decision, from a mind
that was addled by alcohol, which the applicant regretted the next
day.

[55] When the applicant awoke the next day he realized what he had
done, so he decided to dispose of the weapon. He sold the weapon to
Kastin Simik who did not have a firearms licence. The extent of the
applicant’s knowledge that Smith did not have a firearms licence is
unclear from the agreed facts. However, he knew he had stolen the
rifle and it was illegally in his possession. It appears he was not
motivated by profit and was concerned for the safety of his six
children who were between two and nine years old.

[56] The rifle was recovered and was not used in the commission of any
crimes.

[57] The Court does not agree with the Crown and Defence submissions
that the applicant’s conduct should attract a higher level of moral
blameworthiness than in Friesen. The offender in Friesen was
charged with selling a non-restricted firearm, from a bricks-and-mortar
establishment, without a licence to sell firearms. Mr. Friesen sold a
firearm to a man – he knew to be suicidal – who did not have a
firearm’s licence. This differs greatly from the behaviour of Mr.
Irkootee. Mr. Irkootee’s moral blameworthiness is lower because he
was merely removing the firearm from his home for the safety of his
children, rather than running a business selling firearms. Also, Mr.
Irkootee sold his firearm to a person who was apparently going to use
the rifle for hunting, whereas, Mr. Friesen sold the firearm to a person
that he knew to be suicidal.
 14

[58] There is spectrum of conduct for this type of offence. The high end of
the range would be the sale of illegal weapons by organized crime,
drug traffickers and gangs. As acknowledged by the Crown, the
applicant’s actions would fall on the low end of the range.

[59] There is no doubt that this Court must take into account the
prevalence of firearm offences in Nunavut. However, this type of
offence is not the type that typically appears before this Court. The
facts in Lewis appear to be much closer to the type of conduct that s.
99 was intended to catch. Additionally, firearms are prevalent in
virtually every community in Nunavut because they are used on the
land for the purpose of hunting.
ii. Circumstances of the offender and the offence

[60] While acknowledging that the applicant’s conduct was at the low end
of the range, the Crown emphasized that this Court must give greater
weight to the principles of denunciation and deterrence. However,
unlike the Courts in Friesen and Lewis, this Court must also consider
the application of Gladue, Ipeelee and s. 718.2(e) of the Criminal
Code. It is possible to address both deterrence and rehabilitation by
imposing a conditional sentence for a firearm offence, as Ouellette J.
did in Friesen.

[61] The main difference between Friesen and the case at bar is that the
applicant stole the firearm and has a prior criminal conviction for
pointing a firearm. The prior conviction is very dated and the applicant
was sentenced to two years’ probation.

[62] The theft of the rifle was the impulsive act of an intoxicated person.
He made a mistake in judgment in not notifying the police once he
sobered up and realized that he had a problem with possession of the
rifle. However, to his credit he entered an early guilty plea, was very
cooperative with the police, no harm was caused by the firearm and
the firearm was recovered quickly.

iii. Actual effect of the sentence on the applicant

[63] The Crown acknowledges that the MMP will have an impact on the
applicant. I am satisfied that the three year sentence will have a much
greater impact than suggested by the Crown. His only prior period of
 15

incarceration occurred in March 2015 when he was sentenced to ten

days in jail for a breach of an undertaking.

[64] Mr. Irkootee has six young children and he will be away in the south
for a long time. Because of the high cost of transportation in the north,
his family will likely only be able to visit him a few times, if at all. Day
parole will not be of any assistance and the applicant will only eligible
for full parole after he has served one year in the a penitentiary.

iv. Penological purpose of the mandatory minimum sentence

[65] The Crown advanced a forceful argument that the objective of the s.
99 (2) MMP was to address the substantial public concerns regarding
the increase in firearm violence in Canada. The Crown disagreed with
the statements of Ouellette J. in Friesen, adopted by the applicant,
that the MMP addressed exclusively organized crime, handguns, drug
traffickers and gangs. It was submitted that the objective of the
legislation was much broader because Parliament subsequently
passed the ELRA.

[66] The Court adopts Ouellette J’s analysis based on parts of Hansard
where the Minister of Justice set forth the objective of the legislation. I
repeat the Minister’s comments from para 21 of Friesen:

These penalties directly target the supply of handguns and

restricted weapons to the criminals on our streets. They are a
proportionate and necessary measure to the handgun problem
we face, and they target the business of illegally supplying
firearms.

[67] I interpret the Minister’s remarks in the same way as Ouellette J. that
s. 99 was directed at organized crime, handguns, drug dealers and
gangs. There may have been other objects as suggested by the
Crown, but there is no additional evidence before about what they
were. One of the problems with an MMP is that the usual sentencing
discretion conferred on judges is removed so that no exceptions can
be crafted for situations such as this one where an Indigenous person
in a remote northern community selling a rifle is treated the same as a
gang member or organized crime member running an organized
business in trafficking in handguns in a City.
 16

v. Existence of valid alternatives to the punishment imposed

[68] In my view, a one year conditional sentence would satisfy the

sentencing objectives of deterrence and rehabilitation. Unfortunately a
conditional sentence is not available because the Crown proceeded
by indictment. In the absence of a conditional sentence, I accept a
short period of custody is necessary.

[69] Without the MMP, the Crown would seek a sentence of eighteen-
months to two years-less-a-day. The sentence range may have been
shared to demonstrate that a MMP of three years is merely
disproportionate, as opposed to grossly disproportionate. If the MMP
did not exist, then a judge would be free to hear submissions from
both parties, consider Gladue principles, then design a fit and
appropriate sentence. Consequently, submissions on what the
Crown’s position might have been if the MMP did not exist are neither
here nor there when it comes to an analysis of whether the MMP is
grossly disproportionate with regards to Mr. Irkootee.

[70] Gladue and Ipeelee require that deterrence and denunciation be

accomplished through restorative sentencing practices. Mr. Irkootee is
Inuk and is entitled to considerations of Gladue and Ipeelee factors.

[71] The applicant was born March 19, 1988, at Rankin Inlet. His mother
died when he was 4 years old and his father died in 2016 at the age
of 56. His childhood was difficult and affected by alcohol and violence.
He left school at the age of 13.

[72] Because a short period of incarceration is necessary to meet the

principles of deterrence and denunciation, a sentence in the range of
six-to-twelve months would be appropriate. A sentence of six months
would be an appropriate sentence because it would balance Mr.
Irkootee’s Gladue rights with the principles of denunciation and
deterrence.

[73] In Friesen, the offender received a six month conditional sentence for
charges that are morally more serious than those of Mr. Irkootee.
Additionally, Mr. Irkootee is entitled to be sentenced in a manner
consistent with Criminal Code s. 718.2(e). For these reasons, a
sentence of six months would be most appropriate.
 17

vi. Sentencing for other crimes in the same jurisdiction

[74] There are no prior cases in the three territories where a person was
sentenced for this offence. As noted in Shobway, the range in
southern Canada is between one and seven years in jail, however,
many of the cases surveyed in Shobway had multiple charges. In
Shobway, Radley-Walters J. thought a range of twelve-to-eighteen
months would be appropriate after taking into account the Gladue
factors. Shobway was an Indigenous first time offender and was the
father of two children who were in the custody of the mother. He was
exercising regular access and sold two weapons to pay for a drug
debt. The weapons were recovered and no crimes were committed
with them. Mr. Shobway entered an early guilty plea and was co-
operative with the police.

[75] The low end of the scale was the six month conditional sentence
imposed by Ouellette J. in Friesen and those facts are clearly more
serious than in the case at bar. The facts in Lewis were far more
serious than in this case and he was sentenced to one year. I am
satisfied that a sentence of six months in jail would be the appropriate
sentence for the applicant.

[76] Although Mr. Shobway was a first-time offender, the offence was
more serious because he knew he was selling to a known drug dealer
to pay for debts he incurred to buy drugs. In the case at bar, the
applicant has an old pointing a weapon offence and assault
conviction, two breach charges and sold the weapon to a person who
appears to have wanted to use the weapon for hunting.

[77] There is no question that this Court has frequently commented on the
need for deterrent sentences for firearm offences. This court has
established a range of four to seven years where firearms are
discharged as seen in R.v Utye, 2013 NUCJ 14 (CanLII), Lyta, R v
Geetah, 2015 NUCJ 10 (CanLII) and Mikijuk. The facts in this case
are of an entirely different type than the firearms offences that
frequently occur in Nunavut. I agree with Ouellette J., the transfer of
what would otherwise be a non-restricted firearm must be treated
differently from the transfer of a restricted or prohibited firearm.
 18

B. The MMP requires the imposition of a sentence that is Grossly

Disproportionate

[78] The MMP requires that Mr. Irkootee serve a sentence six times that of
an appropriate sentence merely for selling a rifle to an apparent
hunter, with no harm flowing from this act.

[79] As discussed above, Mr. Irkootee would be forced to serve his

sentence far from his young family, and he would be sentenced in a
manner that is not responsive to his rights as Inuk to be sentenced in
accordance with Gladue and Ipeelee.

[80] I am satisfied that imposing a sentence that is six times the

appropriate sentence is grossly disproportionate and would offend
societal norms.

C. Stage 2 – Reasonable Hypothetical

[81] If I am wrong, and the sentence is merely disproportionate and not

grossly disproportionate, then the reasonable hypothetical’s set out in
Friesen and Shobway render s. 99(2) unconstitutional pursuant to s.
52 Canada Act.

[82] The Crown makes the argument that the Firearms Act has provisions
like s. 12(7) which negate the reasonable hypothetical relied upon by
the Courts in Shobway and Friesen. However, s. 12(7) only applies to
weapons manufactured before 1946. There have been many conflicts
since World War II, such as Korea, Vietnam, Afghanistan, Iraq and
more that would result in possible guns-as-heirlooms scenarios.
Therefore, the reasonable hypothetical put forward in Shobway and
Friesen are valid and are valid in this case as well.

[83] The section would catch individuals receiving firearms as part of an

inheritance, if the individual receiving the firearms did not have the
appropriate licensing requirements to possess or acquire the firearms.
Ouellette J. opined that Parliament did not intend to catch that type of
situation in enacting s. 99. Rather, the legislation was an effort to
remove handguns and serious prohibited and restricted firearms off
the street and out of the hands of serious criminals.
 19

VI. CONCLUSION

[84] I am satisfied that the three year MMP that I am required to impose in
this case is so disproportionate as to outrage standards of decency of
Nunavummiut. It would be abhorrent and intolerable to them and
grossly disproportionate to the sentence that I would have imposed
after the application of the usual sentencing principles. As a result, s.
(99)(2) offends the guarantee against cruel and unusual punishment
set out in s. 12 of the Charter.

[85] In R v Itulluriq, 2018 NUCJ 31, the Crown conceded that a grossly
disproportionate sentence cannot be saved by a s. 1, the Crown has
also made this concession in this case.

[86] I accordingly declare s. 99 of no force and effect pursuant to s. 52 of

the Constitution Act with respect to this case.

[87] I sentence the applicant to a term of imprisonment of six months.

[88] I also make a mandatory firearm prohibition for life and I will
recommend an exemption under s. 113 of the Criminal Code.

[89] I order that the rifle seized be forfeited to the Crown.

[90] I order that the applicant pay a Victim of Crime surcharge in the
amount of $200 and give him one year after his release from jail to
pay the surcharge.

Dated at the City of Iqaluit this 6th day of November, 2018

___________________
Justice E. Johnson
Nunavut Court of Justice