Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: R. v. Kunnuk, 2020 NUCJ 19

Date: 20200522
Docket: 07-18-025
Registry: Iqaluit

Crown: Her Majesty the Queen

-and-

Accused: Jason Kunnuk

________________________________________________________________________

Before: Madam Justice Cooper

Counsel (Crown): P. Plourde

Counsel (Accused): S. White

Location Heard: Iqaluit, Nunavut

Date Heard: September 13, 2019
Matters: Appeal from absolute discharge for offence under Criminal
Code of Canada, RSC 1985, c C-46, s. 86(1)

REASONS FOR JUDGMENT

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

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I. INTRODUCTION

[1] The Crown appeals the absolute discharge granted to Mr. Kunnuk
following a finding of guilt on a charge of careless storage of a firearm
pursuant to s. 86(1) of the Criminal Code.

[2] Section 730(3) of the Criminal Code provides that the Crown may
appeal the granting of a discharge as if it were an acquittal or
dismissal of the charge.

II. FACTS

[3] The findings of the trial court were that the accused and his spouse
were drinking and the spouse of the accused became angry at him
because she thought he had hidden a bottle from her. She called him
names and obtained a knife from the kitchen. She tried to cut the
accused on the throat resulting in a superficial scratch. She was then
on top of him and lashed at his stomach, cutting his skin. The
altercation between the two continued, with both parties receiving
injuries. There was little evidence regarding the altercation as counsel
sought to restrict the evidence to the facts relating to the storage of
the firearm.

[4] At some point the spouse got the children from the bedroom, got them
dressed, and left the house to take them to her grandmother’s. As she
was leaving the house with the children the accused said he was
going to kill himself.

[5] When the spouse got to her grandmother’s she called the RCMP and
told them what the accused had said about wanting to kill himself.

[6] The spouse then went back to the house. As she was entering the
home she saw a .22 rifle on the floor of the porch. The accused was
passed out on the couch in the living room. The spouse left the rifle
on the floor and went looking for alcohol.

[7] The RCMP arrived. They saw the rifle on the floor of the porch upon
entering the home. It was described as being located such that a
person had to step over it to get in to the house. The rifle had a round
in it.
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[8] The rifle was normally stored in the crawl space of the house, hidden
under some clothes. There was no suggestion that it normally had a
trigger lock or other safety device. Certainly no such device was found
by the police. The ammunition was normally stored in a kitchen
cupboard.

[9] The accused has a prior criminal record consisting of two drug related
convictions. His second drug related conviction in 2009 was an
offence of possession for the purposes of trafficking, which attracts a
mandatory firearms prohibition of at least 10 years. This is not to say
that firearms were necessarily involved in the drug offence; a firearms
prohibition is mandatory for that particular offence regardless.

[10] The concerning aspects of the criminal record are convictions in 2011
for careless use of a firearm and possession of a firearm while
prohibited.

III. POSITIONS OF THE PARTIES ON SENTENCE

[11] On sentence the Crown sought a three month conditional sentence

order, followed by six to nine months of probation. She also sought a
five year firearms prohibition order and indicated that the Crown
would not oppose a s. 113 exemption. An exemption under s. 113
(1)(a) of the Criminal Code would permit the Chief Firearms Officer to
issue a firearms permit to the offender for the purposes of sustenance
hunting and subject to terms and conditions required to ensure public
safety.

[12] The Defence sought a conditional discharge.

IV. GROUNDS OF APPEAL

[13] The Crown sets out the following grounds of appeal:

 an error in principle by failing to give sufficient weight to the

principles of denunciation and deterrence;
 an error by failing to consider relevant aggravating factors;
 an error in principle by failing to consider the required legal principles
in imposing an absolute discharge;
 an error in failing to provide adequate reasons for his decision; and
 the sentence is demonstrably unfit.
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V. STANDARD OF REVIEW

[14] Sentencing decisions are entitled to considerable deference. As

stated by the Supreme Court of Canada (quoting R. v. Gourgon, 1981
CanLII 328 (BC CA), 58 CCC (2d) 193) in R. v. M (C.A.), 1996 CanLII
230 (SCC), [1996] 1 SCR 500 at para 90:
…absent an error in principle, failure to consider a relevant factor, or
an overemphasis of the appropriate factors, a court of appeal should
only intervene to vary a sentence imposed at trial if the sentence is
demonstrably unfit.

[15] This standard of review was further clarified in R. v. Lacasse, 2015

SCC 64 at para 11:

…except where a sentencing judge makes an error of law or an error in

principle that has an impact on the sentence, an appellate court may
not vary the sentence unless it is demonstrably unfit.

[16] The fact that a sentence is outside of the usual sentencing range for
similar offences does not necessarily mean that an appeal court will
intervene. There may be individual cases where a sentence outside of
the range is appropriate or, at least, not demonstrably unfit.

VI. ANALYSIS

[17] I will begin by considering the adequacy of the reasons provided by

the sentencing judge, as it is only if the reasons are adequate that the
other grounds of appeal can be analyzed.

[18] Pursuant to s. 726.2 of the Criminal Code, a court is required to

provide reasons for the sentence it imposes on an offender.

[19] A trial judge provides reasons for three purposes:

 to explain the decision to the parties;

 to provide public accountability; and
 to permit for effective appellate review (R. v. R.E.M., 2008 SCC 51).
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[20] A reviewing court must proceed with deference and must consider the
record as a whole. The reasons provided must be adequate, in the
sense of providing a pathway of the reasoning process however, not
every step in the reasoning process must be articulated. In assessing
the adequacy of the reasons I remind myself that the entire record of
the proceedings must be considered. This is particularly so in
instances such as this where the trial was short and proceeded
immediately to sentencing, as it may be implicit in the record as a
whole that the trial court accepted certain submissions of counsel or
took a particular position on an issue.

[21] In this matter the sentencing court focused entirely on the

circumstances under which the offence was committed, that being
suicidal ideation, and that the offender had undergone counselling.
While the sentencing court made reference to the prior, related
criminal record of the offender and acknowledged that suicide
attempts can create situations that quickly escalate out of control and
threaten the safety of many people, the court did not address these
concerns in the context of the sentencing principles set out in s. 718
of the Criminal Code. It is not possible from reviewing the reasons to
determine what consideration, if any, was given to the sentencing
principles of deterrence and denunciation.

[22] Section 730 of the Criminal Code provides that the court may grant a
discharge if it is in the best interests of the offender and not contrary
to the public interest. The court was required to consider those two
criteria. The sentencing court, at the end of the decision, simply stated
in a conclusory manner that a discharge was both in the best interests
of the offender and not contrary to the public interest. There is nothing
in the reasons that indicates how the sentencing court came to these
conclusions.

[23] I find that the sentencing reasons are inadequate as they do not
provide sufficient information for a reviewing court to understand the
reasoning process that led to the conclusions and the ultimate
sentence imposed.

[24] Having concluded that the reasons for sentence are insufficient it is
incumbent on this court to determine an appropriate sentence.
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VII. ANALYSIS ON SENTENCE

[25] Section 718 of the Criminal Code sets out the following principles of
sentencing that a court must consider:

 denunciation;
 general and specific deterrence;
 separation of offenders from society, when necessary;
 rehabilitation of offenders;
 reparations to victims of crime; and
 promotion of a sense of responsibility in offenders and
acknowledgment of harm done.

[26] In the circumstances of this case, the sentencing principles of

denunciation, general and specific deterrence, and rehabilitation were
particularly relevant sentencing principles to be addressed. When
considering whether or not to grant a discharge, these sentencing
provisions must be considered in the context of the two criteria for
granting a discharge set out in s. 730 of the Criminal Code.

A. Was a discharge in the best interests of the offender?

[27] There are circumstances where the granting of a discharge, and in

particular an absolute discharge, is not in the best interests of the
offender. Such cases would be those where the offender would
benefit from accessing resources and treatment which can only be
accessed through the imposition of a jail term or a probation order.
Given the acceptance of the sentencing court that the offender had
completed counselling and was no longer in need of counselling or
training on the safe handling of firearms (see Transcript, page 56,
lines 2-5; page 62, lines 1-11) it cannot be said that this case fell into
such a category.

[28] Often, there are specific circumstances of an offender, such as

educational, employment, or travel opportunities, that would be
negatively impacted by a criminal conviction. The offender in this case
did not have any such specific circumstances. The negative impact of
a conviction being entered for the offence was no greater or different
than that felt by all offenders.
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[29] Nonetheless, the fact of a criminal conviction always carries with it

some stigma. While it might be argued that this stigma was not as
significant for this offender as he already has a criminal record, the
number and recentness of criminal convictions, combined with the
seriousness of the convictions, generally increases the social stigma.
For this reason alone it was in the best interests of this offender to not
have a conviction entered for the offence.

B. Was a discharge not contrary to the public interest?

[30] The Alberta Court of Appeal in R. v. Chowdhury, 2019 ABCA 205,

citing R. v. MacFarlane, 1976 ALTASCAD 6, set out the factors to be
considered when considering the granting of a discharge. Those
factors are:

 nature of the offence

 prevalence of the particular offence in the community;
 whether the offender stood to gain personally from the offence;
 if a property offence, the value of the property;
 whether the offence was impulsive or calculated and thought out;
and
 whether the offence should be a matter of record.

[31] Firearms are ubiquitous in Nunavut. Most households have more than
one firearm. They are a necessary tool to carry out a proud hunting
tradition. It is for these same reasons that they must be handled and
stored properly at all times. Improper handling or storage of firearms
places people at risk and must be denounced by the court.
Unfortunately, firearms are too often picked up and used improperly;
most often when someone is drunk and distraught. Many of those
incidents end without injury; some end tragically. In many of the
cases, as in this case, the offender has little or no recollection of the
incident. It is for this reason that firearm owners must turn their minds
to proper storage at all times and make it a matter of habit. The more
layers and steps that a person has to go through to access their
properly stored firearms and ammunition, the less likely it is that the
firearm will be taken up in a drunken state.
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[32] Firearm owners must know that instances of improper handling and
storage of a firearm will be treated seriously by the court. They must
know that the misuse of firearms carries with it not only the risk of a
criminal record, but also the potential of forfeiture of the firearm itself
and, perhaps most importantly, loss of the privilege to own and
possess a firearm. It is this knowledge of the potential for serious
consequences, including the loss of the ability to hunt and provide for
family, that will hopefully deter firearm owners from handling and
storing firearms without the utmost care and diligence.

[33] The offender in this matter had a prior conviction from 2011 for
careless use of a firearm and for possessing a firearm while
prohibited. While there was a gap of approximately seven years
between that conviction and this matter, the fact remains that the prior
conviction showed a cavalier attitude towards firearms. This is
particularly so when considered in conjunction with evidence at the
trial in this matter that the firearm in question was normally stored
under some clothes, in a crawl space (see Transcript, page 16, lines
20-25). This suggests not just a momentary lapse of judgment in the
handling of the firearm but a lax attitude in general.

[34] There are various employment opportunities in Nunavut that involve

handling a firearm, such as a bear monitor at a remote camp or an on
the land instructor at a school. It would be important for such an
employer to know that someone has a record of improper handling of
a firearm.

[35] At the sentencing, the argument was made that the entry of a
conviction would dissuade people from calling the RCMP for help
when they are feeling suicidal for fear of a criminal record. I have
considered this submission. People who find themselves caught up in
situations such as the one in this case are rarely thinking rationally.
Further, in many such cases, as in this case, it is not the offender who
contacts the police but rather a family member or an independent
observer.

[36] I conclude that it would be contrary to the public interest to grant a

discharge in the circumstances of this case and this offender.
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[37] In my view the appropriate sentence is a suspended sentence and a

period of probation. However, significant time has passed since this
matter was in court. It would be unfair, given the passage of time, to
now place the offender on probation. The evidence at the sentencing
hearing was that the offender had overcome some difficult
circumstances and was doing well. A stay of sentence is sometimes
granted in successful Crown appeals where it is determined that the
interests of justice would not be served by having the offender serve
the sentence (R. v. Burnett, 2017 MBCA 122; R. v. Anderson, 2017
MBCA 31).

[38] In my view this is an appropriate case for such a stay.

VIII. FIREARMS PROHIBITION

[39] The offender in this matter was liable to a discretionary firearms

prohibition of up to 10 years pursuant to s. 110(1)(b) of the Criminal
Code. Section 110 provides that even if a discharge is granted, the
sentencing court shall consider whether a firearms prohibition should
be imposed. The sentencing court did not turn its mind to the
appropriateness of a firearms prohibition.

[40] The sentencing court determined that the offender “…probably knows
how to handle a gun properly” (Transcript, page 55, lines 19-20). If
that is the case, such proficiency is aggravating, as it portrays the
offender as a person with insight about the danger firearms present
and the knowledge, but not the willingness, to mitigate that danger.
Further, the prior related conviction and the firearms prohibition
associated with it are particularly relevant on whether or not a
firearms probation was called for in relation to this matter.

[41] A firearms prohibition ought to have been imposed given the prior
related convictions and the circumstances of the offence before the
court. While it may have been appropriate for the sentencing court to
have considered firearms restrictions in the context of a probation
order, that option is no longer available given the stay of the probation
order. Again, recognizing the passage of time, I will order a firearms
prohibition for a period of three years. Given the position taken by the
Crown at the sentencing hearing, there will be a s. 113 exemption.
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IX. CONCLUSION

[42] The Crown appeal is granted. The absolute discharge is set aside. A
conviction is entered. The sentence is a suspended sentence and
nine months’ probation. The probation order is stayed. There will be a
firearms prohibition pursuant to section 110 of the Criminal Code for a
period of three years. There will be a s. 113 exemption.

Dated at the City of Iqaluit this 22nd day of May, 2020

___________________
Justice S. Cooper
Nunavut Court of Justice