Nunavut Court of Appeal

Citation: R v Ookowt, 2020 NUCA 5

Date: 20200605
Dockets: 26-17-012-CAP
Registry: Iqaluit

Between:

Her Majesty the Queen

Appellant

- and -

Cedric Ookowt

Respondent

_______________________________________________________

The Court:
The Honourable Madam Justice Karan Shaner
The Honourable Madam Justice Frederica Schutz
The Honourable Madam Justice Sheila Greckol
_______________________________________________________

Reasons for Judgment Reserved of The Honourable Madam Justice Schutz

Concurred in by The Honourable Madam Justice Shaner
Concurred in by The Honourable Madam Justice Greckol

Appeal from the Decision by

The Honourable Justice E. Johnson
dated the 22nd day of September, 2017
(Docket: 15-16-41 )
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_______________________________________________________

Reasons for Judgment Reserved of

The Honourable Madam Justice Frederica Schutz
_______________________________________________________

I. Overview

[1] Mr. Cedric Ookowt, a 19 year old Inuit man, fired a bullet at Mr. Kenneth Arngna’naaq’s
Baker Lake house, which shattered a window and missed striking Mr. Arngna’naaq by mere
inches. Mr. Ookowt entered a guilty plea to intentionally discharging a firearm into a place
knowing that or being reckless as to whether another person was present, contrary to s 244.2(1)(a)
of the Criminal Code, RSC, 1985, c C-46. Pursuant to s 244.2(3)(b), the mandatory minimum
sentence for this offence is four years.

[2] At the sentencing hearing, the Crown sought the imposition of the four year mandatory
minimum sentence. The defence submitted that an appropriate sentence for Mr. Ookowt would be
in the range of 18 months to two years less one day, and filed a Notice of Constitutional Challenge
arguing that the mandatory minimum sentence was grossly disproportionate to a fit sentence for
this offence and this offender, contrary to s 12 of the Canadian Charter of Rights and Freedoms,
Part 1 of The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11
[Charter].

[3] The sentencing judge ultimately determined that a fit sentence for Mr. Ookowt was two
years less one day, plus one year of probation, and that as a result, the imposition of the mandatory
minimum sentence “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”: R v Ookowt, 2017 NUCJ 22 at para 81 (the
“Decision”).

[4] The Crown appeals, contending the sentencing judge failed to properly assess the gravity
of this offence and, in keeping with similar firearm cases, argues Mr. Ookowt’s conduct warranted
the four year mandatory minimum sentence.

[5] While not joined, this appeal was heard at the same time as the oral hearing in R v
Itturiligaq, 2020 NUCA 6 [Itturiligaq], which also involved a declaration of unconstitutionality
of s 244.2(3)(b) under s 12 of the Charter.

[6] As stated in Itturiligaq, both of these appeals arose as a result of young men resorting to
the use of hunting rifles in response to what they believed to be personal slights or problems in
their personal lives. It is common for those who live in Nunavut’s communities to own rifles. They
are used for subsistence hunting, supporting a traditional way of life. Sadly, this also means they
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are often readily accessible for unlawful and dangerous purposes such as intimidation, revenge,
domestic violence, and retaliation. This unlawful and dangerous conduct must stop.

[7] A lawful firearm in the hands of an angry or despairing individual is a homicide waiting to
happen, as is captured in Parliament’s mandatory four year minimum penalty under s 244.2.
Discharging a loaded firearm at or into a residence, or any other place where another person may
be present, does not resolve disputes. Rather, this conduct rips apart the safety and peace of
communities and families, and is wholly antithetical to the social fabric of Canada, including the
traditional values of Inuit culture. When young Indigenous men must by law be separated for
significant periods of time from their families, communities and land for committing such
offences, everyone loses, possibly no one more than the offender. But it is a sentencing response
that is not unwarranted or grossly disproportionate to the gravity of these offences or the moral
blameworthiness of those who commit them.

[8] For the reasons following and those provided in Itturiligaq, we allow the appeal.

[9] In brief, we conclude that the sentencing judge committed errors in principle which led him
to impose a disproportionate and demonstrably unfit sentence. Further, we conclude that the four
year mandatory minimum sentence under s 244.2(3)(b) is not a grossly disproportionate sentence
for this offence and this offender. Moreover, the hypotheticals put forward by the respondent are
not reasonably foreseeable or do not describe situations where the four year mandatory minimum
would be grossly disproportionate.

[10] We allow the Crown’s appeal, and set aside the sentencing judge’s declaration that the
imposition of the four year mandatory minimum sentence would breach Mr. Ookowt’s s 12
Charter rights. We quash the sentence imposed and pursuant to s 244.2(3)(b), we impose a term
of imprisonment of four years.

[11] However, as in Itturiligaq, given the amount of time that has passed since the original
sentence was imposed on Mr. Ookowt on September 22, 2017, and the fact that he has now finished
his sentence in its entirety, we stay the service of the sentence of imprisonment.

II. Sentencing Decision

A. Circumstances of the offence

[12] On June 26, 2016, while out on the land, Mr. Ookowt and his friend Richard, were drinking
and had consumed two of three 40 ounce bottles of whisky Mr. Ookowt had in his possession.
Later that day, Richard dropped Mr. Ookowt off at the home of Kenneth Arngna’naaq. Arnold
Arngna’naaq lived with Kenneth, who was his uncle. Mr. Ookowt testified at the sentencing
hearing that he was attacked by Arnold, who punched him in the face and tried to take his alcohol.
Arnold admitted in his police statement that he beat up Mr. Ookowt “a little”; Richard ultimately
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saw the fight and broke it up. Richard heard Mr. Ookowt say he was going to “get a gun”: Decision
at para 27.

[13] Mr. Ookowt testified that he was highly intoxicated and experienced a blackout that night,
putting himself at a 10 out of 10 in terms of intoxication. The sentencing judge found that “[d]espite
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”: Decision at para 28.

[14] The sentencing judge found that Mr. Ookowt fired a single shot into the furthest window
of the Arngna’naaq house; the bullet shattered the window and narrowly missed hitting Kenneth
Arngna’naaq who was in his living room watching television. Arnold was not in the home. The
sentencing judge determined “[t]he accused did not intend to physically harm anyone and was not
aware if anyone was in the house”: Decision at paras 28-31.

[15] The sentencing judge accepted Mr. Ookowt’s testimony that Arnold had regularly bullied
him since he was 12 or 13 and that the bullying, both verbal and physical pushing, had increased
in the year leading up the incident. Mr. Ookowt’s mother confirmed that there had been increased
requests by Mr. Ookowt to be driven to sporting events in the community that coincided with the
increased bullying. The sentencing judge further found that Arnold provoked the physical fight
with Mr. Ookowt on the night of the shooting and tried to steal his alcohol. At the time of the
shooting, Mr. Ookowt was in breach of an undertaking related to charges of dangerous driving and
evading the police, with conditions that he keep the peace and abstain from alcohol consumption:
Decision at paras 32-35.

B. Circumstances of Mr. Ookowt

[16] Mr. Ookowt was 19 years old at the time of the offence and 20 years old at sentencing; he
had no criminal record. He was raised by both parents and is the middle child of five children. He
reported he did not experience physical abuse as a child; however, “his father was an alcoholic
who drank regularly and would frequently pass out while watching movies or listening to music”:
Decision at para 23.

[17] Mr. Ookowt’s mother indicated he grew up in a healthy, loving and supportive family
home, and was raised in a traditional lifestyle that included camping, hunting, fishing and the
maintenance of a dog team. She said that Mr. Ookowt was always very helpful to the family and
was good at repairing things. Mr. Ookowt left school when he was in grade 11 or 12 to pursue a
hunting lifestyle which, together with his father and elder brother, supports his immediate family.
Mr. Ookowt can read and write in English; however he can speak and understand Inuktitut, and he
uses it when speaking with elders. Mr. Ookowt admitted to drinking alcohol since age 17, and said
his consumption increased after the suicide of a good friend: Decision at paras 22-26.
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C. Sentencing judge’s articulation of the required s 12 analysis

[18] The sentencing judge noted that s 244.2 came into force on October 2009 as a new
nominate offence, with no subsisting predecessor, and that preceding its enactment courts had
consistently upheld four year mandatory minimum sentences for firearm-related offences,
including manslaughter (R v Birchall, 2001 BCCA 356, 158 CCC (3d) 340), and criminal
negligence causing death (R v Morrissey, 2000 SCC 39, [2000] 2 SCR 90 [Morrisey]): Decision
at para 6.

[19] The sentencing judge noted the evolution of the law relating to s 12 of the Charter as
reflected in R v Smith, [1987] 1 SCR 1045, 40 DLR (4th) 435 [Smith], R v Goltz, [1991] 3 SCR
485, 67 CCC (3d) 481 [Goltz]; Morrisey; R v 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].
He held that the test in Smith at para 86 was whether the mandated 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 s 12 of the Charter, the punishment must
be shown to be grossly disproportionate”: Decision at paras 10-11.

[20] From Nur, the sentencing judge provided that in the first stage of a s 12 analysis the court
must determine whether the challenged 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 mandatory minimum sentence is grossly
disproportionate to the specific offender. The court is to consider four factors: (a) the gravity of
the offence, (b) the personal characteristics of the offender and the circumstances of the offence,
(c) the actual effect of the punishment on the offender, and (d) the penological goals and sentencing
principles underlying the sentence. No single factor is determinative of the question of gross
disproportionality: Decision at paras 12-15.

[21] If the impugned sentencing provision is not shown to be grossly disproportionate in its
application to the specific offender, the court must move to the second stage of the analysis in
considering whether the sentencing provision is grossly disproportionate when applied to
reasonably foreseeable cases: Decision at paras 16-21.

[22] In his analysis, the sentencing judge noted that most of the Criminal Code sections directed
at mandatory minimums concerning the regulation of firearms have not survived s 12 Charter
challenges; for example, Nur (unauthorized possession of a prohibited weapon); and R v Shobway,
2015 ONCJ 457 (unauthorized transfer of a restricted weapon). However, provisions directed at
the use of firearms, including s 244.2 of the Criminal Code, have survived s 12 Charter challenges.
He noted that at paras 32-33 of R v Oud, 2016 BCCA 332, 339 CCC (3d) 379 [Oud], the British
Columbia Court of Appeal indicated that what accounted for the different results could be
attributed to the analysis in Lloyd, and, as found in R v McMillan, 2016 MBCA 12, 326 Man R
(2d) 56 [McMillan], that s 244.2 is specifically defined and does not cast an overly broad net due
to its “double mens rea requirement”: Decision at paras 58-59.
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[23] While noting the constitutionality of s 244.2 was not challenged in the Nunavut cases of R
v Lyta, 2013 NUCA 10, 561 AR 146 [Lyta], R v Utye, 2013 NUCJ 14 [Utye], R v Geetah, 2015
NUCJ 10 [Geetah], or R v Mikijuk, 2017 NUCJ 2, appeal allowed 2017 NUCA 5 [Mikijuk], the
sentencing judge distinguished those cases on the basis that “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 [mandatory minimum penalty]”: Decision at para 59.

[24] In contrast, he found that one shot was fired by Mr. Ookowt, a youthful, first time offender,
and that the bullying he experienced, while not mitigating, was not irrelevant, as similarly found
in McMillan:

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 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. (Decision at para 63)

[25] The sentencing judge further noted that the bullied young offender hypothetical considered
by the sentencing judge in Oud was similar to the facts in this case, but that the Court of Appeal
in Oud found that the hypothetical “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. . . ”: Decision at para 67.

[26] The sentencing judge found a critical difference between the Oud hypothetical and this
matter, in that Mr. Ookowt is Indigenous, which necessarily pulled in the sentencing framework
from R v Gladue, [1999] 1 SCR 688, 171 DLR (4th) 385 [Gladue] and R v Ipeelee, 2012 SCC 13,
[2012] 1 SCR 433 [Ipeelee]. Even without this framework, however, the sentencing judge decided
that the combination of bullying, intoxication and firing only one shot meant Mr. Ookowt was
“lower down the scale of moral blameworthiness than. . . other Nunavut cases”. Additionally, Mr.
Ookowt had entered an early guilty plea and was remorseful. In the result, the sentencing judge
determined that a fit and proper sentence in this matter was less than four years before considering
Gladue. He also found Mr. Ookowt was a good candidate for rehabilitation, building on the
substance abuse and healthy relations courses he had already taken at the Baffin Correctional
Centre: Decision at paras 70-71, 80.

[27] In the result, the sentencing judge determined a fit sentence for Mr. Ookowt was 18 months
to two years less one day incarceration plus probation: Decision at para 56.
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[28] In respect of the constitutionality of s 244.2(3)(b), the sentencing judge stated: “It follows
that the application of the [mandatory minimum penalty] 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”:
Decision at para 81.

III. Grounds of Appeal

[29] The Crown appellant argues that the sentencing judge erred in finding the mandatory
minimum penalty was grossly disproportionate in this matter and by declaring s 244.2(3)(b) to be
of no force and effect. It is submitted that the sentencing judge erred:

(a) in principle, by failing to give sufficient consideration to the gravity of the offence,
and the principles of denunciation and deterrence, and by overemphasizing Mr.
Ookowt’s personal factors; and

(b) by imposing a sentence that was demonstrably unfit.

IV. Standard of Review

[30] As set out in Itturiligaq, a sentencing decision is entitled to deference absent an error in
principle, a failure to consider a relevant factor, or an overemphasis of the appropriate factors
which impacted the sentence, or where the sentence is demonstrably unfit: R v Lacasse, 2015 SCC
64 at paras 39-44, 67, [2015] 3 SCR 1089 [Lacasse]; R v Friesen, 2020 SCC 9 at paras 26-29.

[31] Deference is also owed to a decision as to whether a Charter right has been violated, absent
palpable and overriding error. However, whether a sentencing judge correctly interpreted the scope
of the Charter right is a question of law reviewed for correctness: R v EJB, 2018 ABCA 239 at
para 20, leave to appeal refused, 2019 CanLII 45254 (SCC) [EJB].

[32] As reaffirmed in Nur at para 39 and Lloyd at paras 24, 32-33, a high bar has been set as to
what will constitute cruel and unusual punishment under s 12 of the Charter. It is not enough to
show that a mandatory minimum sentence is excessive or harsh; rather, “it must be so excessive
as to outrage the standards of decency”; “abhorrent or intolerable”; shocking the conscience of
Canadians. “The wider the range of conduct and circumstances captured by the mandatory
minimum, the more likely it is that the mandatory minimum will apply to offenders for whom the
sentence would be grossly disproportionate”: Lloyd at para 24.

V. Analysis

A. The legislation

[33] Section 244.2 of the Criminal Code provides:

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244.2(1) Every person commits an offence

(a) who intentionally discharges a firearm into or at a place,

knowing that or being reckless as to whether another person is
present in the place; or

(b) who intentionally discharges a firearm while being reckless as

to the life or safety of another person.

...

(3) Every person who commits an offence under subsection (1) is guilty of an
indictable offence and

(a) if a restricted firearm or prohibited firearm is used in the

commission of the offence or if the offence is committed for the
benefit of, at the direction of or in association with a criminal
organization, is liable to imprisonment for a term of not more than
14 years and to a minimum punishment of imprisonment for a term
of

(i) five years, in the case of a first offence, and

(ii) seven years, in the case of a second or

subsequent offence; and

(b) in any other case, is liable to imprisonment for a term of not

more than 14 years and to a minimum punishment of imprisonment
for a term of four years.

[34] Section 12 of the Charter provides:

12 Everyone has the right not to be subjected to any cruel and unusual treatment or
punishment.

[35] The brief history of s 244.2 is set out in paragraphs 47-49 of Itturiligaq and need not be
repeated here.

B. The section 12 test to determine constitutionality

[36] Recently, in R v Ford, 2019 ABCA 87 at para 10, 371 CCC (3d) 250, the Alberta Court of
Appeal reviewed the s 12 considerations mandated by Nur and Lloyd and helpfully set out the
analytical framework in this way:
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...

• A sentence is “cruel and unusual punishment” under s 12 of the Charter if it is grossly

disproportionate to the sentence that is appropriate given the nature of the offence and the
circumstances of the offender (Nur at para 39). This is a high bar – a sentence that is
“merely excessive” is not cruel and unusual, but must be “so excessive as to outrage
standards of decency” and “abhorrent or intolerable” to society (Lloyd at para 24).

• Deciding a challenge to a mandatory minimum sentencing provision involves a two-step

analysis (Nur at para 46; Lloyd at para 23). The court must perform this analysis both for
the actual offender before the court and for reasonably foreseeable hypothetical offenders
(Nur at para 77; Lloyd at para 22):

1. The court must assess what is a proportionate sentence for the offence, absent
the minimum. The court need not fix the sentence or range at a specific point,
especially for hypothetical offenders, but the court should consider the rough scale
of the appropriate sentence (Lloyd at para 23).

2. Having done so, the court must ask whether the mandatory minimum will require
the imposition of a grossly disproportionate sentence (Lloyd at para 23).

....

• If a mandatory minimum sentence is grossly disproportionate and violates s 12, it will be

difficult to show that the provision is justified under s 1 of the Charter. . . .

C. Mr. Ookowt’s sentence is disproportionate and demonstrably unfit

[37] In our view, the sentencing judge underemphasized Mr. Ookowt’s high moral
blameworthiness for this offence, and overemphasized intoxication, bullying and Gladue factors.
As a result, the sentencing court failed to give sufficient weight to denunciation and deterrence in
reaching a sentence that was ultimately disproportionate and unfit in all of the circumstances.

a) Seriousness of the offence

[38] Section 244.2 captures conduct involving the offender’s “intentional discharge of a firearm
and knowledge or recklessness as to the presence of a person in the place fired upon”: Oud at para
33.

[39] Before Mr. Ookowt fired his rifle into Kenneth Arngna’naaq’s home, he did not take steps
to determine whether anyone was inside the residence, nor did the sentencing judge find that his
decision to shoot into a residence was in any sense justified or proportionate to the reasons Mr.
Ookowt gave about why he committed the offence. It is clear, however, that when the shot was
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fired, Mr. Ookowt was intoxicated and had been for much of that day, in breach of an undertaking
that he abstain from consuming alcohol.

[40] When the assault by Arnold ended, Mr. Ookowt was heard to say that he was going to
return with a gun. He did so. Mr. Ookowt went home, unlocked the .250 calibre rifle from the gun
safe, took a bullet, loaded the gun, and walked back to the Arngna’naaq house. Positioning himself
on a hill behind the home before taking aim, he fired the bullet into the house, hitting his intended
target, one of the residence’s windows. He said he fired at the house because he did not like the
way Arnold had jumped him, and he was not going to get bullied like that anymore.

[41] We accept the Crown’s submission that firearm-related offences are of the utmost gravity.
Further, the mens rea requirement in s 244.2 of intentionally discharging a firearm with knowledge
or recklessness as to whether others are present, speaks to high moral blameworthiness.
Denunciation and deterrence are paramount considerations on sentence, and factors personal to the
offender are to be given less weight. As was observed in R v Nur, 2013 ONCA 677 at para 107:
“Mitigating factors personal to a particular accused necessarily [take] on a less significant role
when fixing the appropriate penalty” for a firearm-related offence. Further, as found in McMillan
at para 20, “. . . when denunciation and general deterrence are the paramount sentencing
considerations, the primary focus is on the offender’s conduct (. . . discharging a firearm into a
home), not the particular circumstances of the offender (victim of bullying). While personal factors
remain relevant, they are to be given less weight.”

[42] Parliament intended to give primacy to denunciation and deterrence to address pressing
and substantial concerns regarding firearm violence in Canada. However, despite recognizing that
denunciation and deterrence were paramount, the deliberateness and gravity of this firearm
offence, and the prevalence of this type of highly dangerous conduct in Nunavut, the sentencing
judge failed to give sufficient weight to these factors. As noted in Itturiligaq, per capita, gun
violence in the North is higher than elsewhere in Canada: see Yvan Clermont, Firearm-related
crime in Canada, (Statistics Canada, 18 February 2019); Adam Cotter, Firearms and Violent
Crimes in Canada, 2016 (Statistics Canada, 28 June 2016).

[43] Nunavut courts have placed particular emphasis on the seriousness of the use of firearms
in committing violent offences, given the prevalence of firearms in the territory and their
importance for subsistence hunting. For example, in Geetah at para 135, Sharkey J (as he then
was) stated:

It is a sad observation that firearms, once used only as a tool in the not too distant
past, are now the first resort of choice as a weapon for a small but significant
minority of frustrated and dysfunctional young men – young men unable to deal
with jealousy, anger, or suicidal thoughts, and often driven by alcohol.

[44] Mr. Ookowt very easily could have killed someone, namely Kenneth Arngna’naaq, and it
was a matter of pure luck that he did not. As noted in Morrissey at para 53: “There is no room for
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error when a trigger is pulled. If the gun is loaded, there is a sufficient probability that any person
in the line of fire could be killed”. We conclude that the sentencing judge did not meaningfully
consider the gravity of Mr. Ookowt’s offence in this regard; the mandatory minimum penalty under
s 244.2(3)(b) aptly addresses that gravity.

[45] Further, the sentencing judge did not provide any persuasive reasons for imposing a
sentence that did not address the well-established seriousness of this firearm offence. The failure
to do so was an error: see for example R v Mala, 2018 NUCA 2 at para 22, wherein this Court
held the trial judge erred in failing to provide an analysis showing how the primary principles of
denunciation and deterrence could be achieved by the sentence imposed.

[46] In sum, an offender who commits the offence of intentionally discharging a firearm into a
place, knowing or being reckless as to whether anyone is in that place, is guilty of significant
morally blameworthy conduct. “There is an extremely high degree of moral culpability underlying
this offence. That is why this crime carries a minimum gaol term of 4 years”: Utye at para 32.

b) Background and personal characteristics of Mr. Ookowt

[47] In mitigation of sentence, Mr. Ookowt pleaded guilty which demonstrated his acceptance
of responsibility and evidenced remorse to some degree. Also mitigating was Mr. Ookowt’s young
age and lack of a criminal record.

[48] The sentencing judge also focused on four specific factors in determining that Mr. Ookowt
was lower down the scale of moral blameworthiness than others similarly charged in Nunavut: a)
intoxication; b) Gladue considerations; c) the firing of only one shot; and, d) his reports of being
bullied. In our view, the sentencing judge overemphasized these factors and their overemphasis
had a material impact on sentence.

[49] The sentencing judge found that the assault by Arnold, coupled with the prior bullying and
Mr. Ookowt’s level of intoxication “tripped the switch in his brain that he had to send a message
to Arnold by firing the shot”. He went on to conclude that Mr. Ookowt was “a good candidate for
rehabilitation and can build on the work he has started” while in custody; the sentencing judge
further held he could “take into account the Gladue factors to temper the usual deterrent sentence
for this type of crime”. Those Gladue factors were found to include that the appellant appeared to
have developed the same alcohol abuse problem as his father, which became “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”: Decision at paras 75, 80.

i) In the context of violent crimes, intoxication rarely diminishes moral culpability

and is not mitigating

[50] While the sentencing judge stated that intoxication was one factor that diminished Mr.
Ookowt’s moral blameworthiness, he failed to explain why intoxication put Mr. Ookowt “lower
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down the scale of blameworthiness than the accused persons in other Nunavut cases”: Decision at
para 70.

[51] Alcohol abuse was a factor in most comparable cases in Nunavut where sentences of four
years or more were imposed upon offenders for whom Gladue considerations applied. For example
in Lyta, the 22 year old Inuk offender was intoxicated and suicidal when he intentionally
discharged his rifle into a duplex in Kimmirut; after appeal he received a sentence of five years. In
Utye, the 21 year old Inuk offender was intoxicated when he fired into an RCMP detachment; he
received a seven year sentence. In Mikijuk, the 28 year old Inuk offender was intoxicated and
suicidal when he fired his rifle out of his house in the community of Iqaluit (contrary to s
244.1(1)(b)); after appeal he received a sentence of four years. In Josephee (unreported, 2010
NUCJ, File Nos 08-08-299;08-09-418), the 21 year old Inuk offender was intoxicated when he
fired his rifle in the direction of police (contrary to s 244(1)(b)); a six year global sentence was
imposed. While Itturiligaq may be an exception in that the accused was sober when he shot a rifle
at an occupied house after a fight with his girlfriend, the conduct was still the result of a young
man addressing a personal conflict with firearm violence; after appeal, a four year sentence was
deemed fit and proportionate. It is difficult to conceive how any circumstances, including
intoxication, could lessen the moral blameworthiness of an offender who resorts to such violence.

[52] We note that in none of these cases did the offender’s intoxication, youth, or Indigenous
status or upbringing in Nunavut serve to substantially reduce their moral blameworthiness so as to
justify a sentence below the mandatory minimum. The highly dangerous criminal conduct in this
matter occurred after Mr. Ookowt consumed copious amounts of alcohol while prohibited. He
nevertheless purposely retrieved the rifle, knew his target was a residence, and was “not so
intoxicated that he was unable to load, aim and fire the rifle with fair precision on the target”:
Decision at para 45. While it is clear that both the sentencing judge and Mr. Ookowt seemed to
place much of the blame for his behaviour on his consumption of alcohol, intoxication was not a
mitigating factor in this matter and was overemphasized by the sentencing judge.

[53] In Clayton Ruby et al, Sentencing, 8th ed (Markham: Lexis Nexis, 2012) at 296, the authors
summarize the effect of intoxication in the sentencing process as follows:

The cases do not suggest that intoxication or addiction are an excuse for crime, but
they are a circumstance to be taken into account sometimes in aggravation,
sometimes in mitigation in assessing sentence.

A person under the influence of liquor, who is otherwise of blameless reputation,

may do something quite out of character, and the liquor may be both an explanation
and a factor in mitigation. In such cases, lenient treatment may be justified in
anticipation of rehabilitation. However, some persons become more dangerous
while under the influence of intoxicants, and the penalty may reflect that
dangerousness.
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And further at 298:

However, in crimes involving violence, the use of alcohol may be treated as an

aggravating factor or, at best, a neutral one. [Emphasis added]

[54] This offence involved intentionally firing a shotgun at a residence while the offender was
intoxicated and under a legal undertaking not to consume alcohol, the breach of which was clearly
aggravating. Mr. Ookowt’s actions make clear, as did those of the similarly intoxicated offenders
in Lyta, Utye, Mikijuk, and Josephee, that his intoxication led to extremely dangerous and life-
threatening conduct. We conclude that Mr. Ookowt’s intoxication, at best, was a relevant but
neutral factor.

ii) Firing one shot, rather than multiples shots, does not lower moral culpability
and is not mitigating.

[55] The sentencing judge also erred in determining that as Mr. Ookowt only fired a single shot,
his moral blameworthiness was lowered as compared to other s 244.2 cases. The absence of
multiple shots is at best, the absence of an aggravating factor and cannot mitigate sentence.
Regardless, the first shot fired at a residence may often be the most serious because it risks the
lives and safety of the unsuspecting occupants who have no time to react or take cover. Again,
whether one shot or multiple shots are fired, as the Supreme Court noted in Morrissey, there is
simply no room for error once the trigger is pulled. Similarly, it only takes a single shot to strip
the occupant of the targeted residence of all sense of safety and security in their own home.

[56] In any event, and as was similarly found in Itturiligaq, firing only one shot at a residence
does not reduce an offender’s moral blameworthiness so as to reduce a fit and proper sentence in
the range of four years, to two years less a day. Notably in Josephee, the offender fired only one
shot but was nonetheless sentenced to 62 months, having been convicted, inter alia, under s
244.2(1)(b).

[57] Mr. Ookowt’s single shot involved planning and premeditation, which is also aggravating:
see Utye at para 12; Itturiligaq at para 60. As analogously found in both of those cases, it took
time for Mr. Ookowt to walk home, gather his father’s .250 rifle and ammunition, and walk to the
firing location on the hill. There was time for Mr. Ookowt’s “anxious[ness] and upset and fear[]
for his security” to ease, and time for him to reconsider. He did not.

[58] In his statement to police and his affidavit at the sentencing hearing, Mr. Ookowt stated
that he believed Arnold lived in the residence. While the sentencing judge found Mr. Ookowt “did
not intend to harm anyone and was not aware if anyone was in the house”, these statements were
nevertheless an acknowledgement by Mr. Ookowt that there was a reasonable possibility the
residence was occupied by another person when he shot into it.
 Page: 14

[59] Further, given that Mr. Ookowt has been hunting since the age of six, he was more than
aware of the destructive power a rifle can have, even when just one shot is fired. In Josephee at 7,
Browne J (then of the NUCJ) held that the offender’s experience as a hunter was aggravating in
the context of misusing and discharging a firearm at police officers when intoxicated:

In Nunavut we know that guns are common. Guns are used for hunting animals.
Guns are never to be used in anger or towards human beings. This is a well-known
principle and governs many, many people’s lives and for many people in Nunavut
guns are an important part of their lifestyle and the culture.

So when we have someone who abuses or misuses weapons in the kind of way that
we heard about in this case, it’s very serious because particularly when this young
man is abusing a gun, and he is a hunter . . . he has abused the privilege of having
firearms for hunting and it may come eventually that guns are not readily available
for hunting as they are now because people misuse the privilege of having firearms.
. . . [Emphasis added]

iii) Bullying does not diminish the moral culpability of discharging a firearm into a
residence and is not mitigating

[60] To the extent that the sentencing judge relied on Mr. Ookowt’s reports of being bullied as
lowering his moral blameworthiness, we are persuaded by the Crown’s assertion that in all of the
circumstances, the evidence did not establish bullying of such severity as to significantly reduce
Mr. Ookowt’s moral blameworthiness, if at all.

[61] The circumstances are that Mr. Ookowt deliberately shot into the home well after his
physical separation from Arnold, not knowing who may have been inside and in consequence of
which, significantly risking Mr. Kenneth Arngna’naaq’s life. This was an act of firearm violence
completely disproportionate to Mr. Ookowt’s experiences of being assaulted that night, or being
bullied earlier by Arnold. It is evident from his police interview, that even Mr. Ookowt knew that
his actions were extreme; he told police that he shot into the Arngna’naaq’s residence and at the
window because he wanted Arnold to “know that I don’t fuck around”.

[62] In his later affidavit, sworn on January 28, 2017, Mr. Ookowt stated: “While I did shoot
one round into Arnold Arngna’naaq’s side window of his house, I did so only to warn him that I
would no longer tolerate his harassment . . . Moreover, I was not aware of anyone else being in the
house with Arnold Arngna’naaq when I fired the shot into the side window”. Mr. Ookowt’s
statements that he “experienced heightened anxiety and fear for my security”, as accepted by the
sentencing judge, do not lessen his moral culpability for this extremely dangerous offence.

[63] In our view, the sentence judge fell into the same error identified in McMillan at paras 20-
30:
 Page: 15

Bullying is a form of intimidation and abuse. There can be no denying that the
accused was the victim of bullying and that the bullying was the motivating factor
for his crime. But again, when denunciation and general deterrence are the
paramount sentencing considerations, the primary focus is on the offender’s
conduct (. . . discharging a firearm into a home), not the particular circumstances
of the offender (victim of bullying). While personal factors remain relevant, they
are to be given less weight. In the case at hand, a fair reading of the reasons shows
that the sentencing judge’s attention was focussed more on the accused’s personal
factors than on the offending conduct.

...

The uncontested fact before the sentencing judge was that the accused’s crime was
motivated by, and in retaliation for, the bullying he suffered. An accused’s motive
to commit the crime can, depending on the circumstances, be a mitigating,
aggravating or neutral factor. See Clayton C. Ruby, Gerald J. Chan & Nader R.
Hasan, Sentencing, 8th ed (Markham: LexisNexis, 2012) at para 5.49, where
examples of crimes motivated by personal factors of a temporary nature (and
generally viewed as mitigating) are set out. On the other hand, as the authors also
point out, the more serious the crime, the less such a factor will serve to mitigate
the sentence. . .

In my view, the sentencing judge greatly overemphasized the effect of bullying as

a mitigating factor and, by doing so, he underemphasized the accused’s high degree
of moral blameworthiness. While the accused’s victimization resulting from the
bullying was a relevant consideration, it had little if any mitigating value in the
circumstances for the two reasons that follow.

First, the accused’s actions were not a sudden or spontaneous “lashing out” (at para
46) to an act of bullying. . . . They were highly premeditated. In the middle of the
night, just prior to the shooting, he had told a friend that he was “going to go do his
business”. . . after obtaining a loaded rifle and 18 live rounds, he walked through
town to his target’s home. He then proceeded to open fire on the home . . . His
actions were anything but impulsive.

Second, and more importantly, the accused’s act of extreme premeditated violence
is completely disproportionate to any reasonable and measured response to the
bullying he suffered. The accused’s conduct could have inflicted life-threatening
injuries had one of the bullets hit one of the occupants of the home. It was not a
proportionate response to the harm he had experienced.
 Page: 16

As a result, I am of the view that the accused’s motive has little, if any, mitigating
value because of the premeditated and very serious nature of the crime he
committed.

[64] Mr. Ookowt’s admitted act of “extreme premeditated violence is completely

disproportionate to any reasonable and measured response to the bullying he suffered”; it was sheer
luck that his bullet did not hit and kill either Arnold, the target of his “warning”, or Kenneth
Arngna’naaq. He shot at a window, ensuring the bullet would enter the home, because he thought
Arnold was in the house. Moreover, as stated in Utye at paras 30-31, when an offender knows
someone is in the place being fired into, it offends common sense to conclude the offender did not
intend to harm anybody. It is similarly implicit in Mr. Ookowt’s sworn evidence and his guilty
plea, that he was conscious of the risk to life and limb when he pulled the trigger and deliberately
took a chance: Utye at para 30. Again, it was simply luck, not any planning on Mr. Ookowt’s part,
that life and limb were not lost in this case.

[65] Mr. Ookowt’s stated motive had little, if any, mitigating value because of the retaliatory,
premeditated and very serious nature of the crime he committed, as was similarly found in
McMillan at paras 25-26. Further, we fully endorse what was said by the Court in Oud at para 39:

In the context of the harm addressed . . . , there is no room for recklessly discharging
a firearm in the service of . . . self-help for bullying, just as there is no room for
vigilantism ... intentionally shooting at an occupied building is an act of extreme
violence which [is] completely disproportionate to the wrong ... suffered from
bullying.

See also McMillan at para 32; Utye at para 12.

[66] While the sentencing judge acknowledged McMillan made clear that bullying “has little
mitigating effect on the sentence”, it is apparent that he nonetheless considered what evidence
there was of bullying to be sufficiently mitigating, together with Mr. Ookowt’s intoxication and
Gladue factors, to warrant significant reduction in sentence. In these circumstances, it is not.

iv) Gladue considerations do not significantly reduce Mr. Ookowt’s moral

blameworthiness

[67] In all cases involving an Indigenous offender, the “courts must consider all of the
circumstances of that offender, including the unique circumstances described in Gladue”: Ipeelee
at para 86. Further, in order to achieve a proportionate sentence, a robust application
of Gladue factors is necessary to assess the moral blameworthiness of the offender: R v Swampy,
2017 ABCA 134 at paras 25-26, 29, 347 CCC (3d) 505 [Swampy]. The offender’s moral
blameworthiness must then be considered together with the gravity of the offence to arrive at a
proportionate sentence.
 Page: 17

[68] As reiterated in Swampy at para 26, “[i]t is an error to proceed on the basis
that Gladue factors do or do not justify departure from a proportionate sentence. . . Instead,
application of the Gladue analysis achieves a proportionate sentence” (emphasis in original). The
sentencing judge’s task, therefore, is to assess the moral blameworthiness of each individual
offender, and in so doing, consider their unique circumstances: Ipeelee at para 18.

[69] Ipeelee at para 60, made clear that systemic and background factors do not on their own
mitigate sentence by indicating lower blameworthiness; rather, these factors provide context to
evaluate blameworthiness:

To be clear, courts must take judicial notice of such matters as the history of
colonialism, displacement, and residential schools and how that history continues
to translate into lower educational attainment, lower incomes, higher
unemployment, higher rates of substance abuse and suicide, and of course higher
levels of incarceration for Aboriginal peoples. These matters, on their own, do not
necessarily justify a different sentence for Aboriginal offenders. Rather, they
provide the necessary context for understanding and evaluating the case-specific
information presented by counsel.

[70] In this case, the sentencing judge found that Mr. Ookowt appeared to be falling into the
same problem with alcoholism as his father; a problem which became even more serious following
the suicide of his friend. Alcoholism and suicide are two of the legacies of colonialism, and sadly
remain unique systemic and background factors faced by far too many Indigenous offenders in the
remote North, including Mr. Ookowt.

[71] The sentencing judge found he could “take into account [Mr. Ookowt’s] Gladue factors to
temper the usual deterrence sentence for this type of crime”, immediately following which he
determined that a sentence of two years less a day would be appropriate. However, he failed to
explain why a sentence far below the mandatory minimum sentence of four years, and that imposed
on other Nunavut offenders who committed similar criminal conduct, would meet the paramount
need for denunciation and deterrence in this matter. He also failed to state why such a lower
sentence would be responsive to the “needs, experiences, and perspectives of Aboriginal people
and their communities”: Ipeelee at para 74. The people of Nunavut, like people everywhere else
in Canada, are entitled to be protected by the law and are entitled to be safe in their homes and
communities, free from firearm-related gun violence.

[72] As stated by the sentencing judge at para 74 of the Decision:

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. . .
[He] 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
 Page: 18

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.

[73] The trial judge found Mr. Ookowt did not have a disadvantaged upbringing, nor does there
appear to be a history of family violence, displacement, residential schooling or “constrained
circumstances”: Ipeelee at para 73. Rather, Mr. Ookowt enjoyed a culture-centred and close family
upbringing throughout his life; he is both intelligent and educated, communicating in both English
(written and oral) and Inuktitut (oral). He opted to leave formal schooling to pursue his vocation
as a traditional hunter, earning a living from the land by selling furs and supporting his family and
community with the country food he harvested, and by keeping their machines and dog teams in
good order. While a history of colonialism must be taken into account, including substance abuse
and suicide in this matter, it is difficult to identify any background factors that greatly diminish
Mr. Ookowt’s moral blameworthiness for this serious firearm offence, at least to the extent found
by the sentence judge to “temper the usual deterrence sentence” by more than two years.

[74] Simply put, the sentence imposed in this matter was disproportionate and unfit in respect
of both the circumstances of the offence, and the offender.

[75] In our view, Mr. Ookowt’s conduct stemmed from a wrong-headed motive of retaliation
or revenge for being bullied; the result was a serious premeditated offence of firearm violence
which but for luck and mere inches, almost cost Kenneth Arngna’naaq grave injury or death. When
violence is the result of such motives, when an offender takes matters into their own hands by
dealing with a personal problem by firing a gun at a residence, the need for a denunciatory and
deterrent sentence is paramount. That need was not met here by the imposition of a territorial
sentence.

D. What is a fit sentence for Mr. Ookowt?

[76] A sentence proportionate to the gravity of this offence and Mr. Ookowt’s moral
blameworthiness would be in the range of four years’ imprisonment in a penitentiary. Persuasive
case law supports this conclusion, including the Nunavut cases discussed above, Lyta, Utye,
Mikijuk, Josephee, and Itturiligaq, as well as Oud (4 years) and MacMillan (4 years).

[77] As is stated in Oud and echoed in this Court’s decision in Itturiligaq, anything less than a
penitentiary sentence in this matter sends the wrong message. Further, the four year mandatory
minimum sentence is a reflection of the serious risk that firing bullets into occupied places or
buildings can have. That risk here was the real possibility that Kenneth Arngna’naaq might have
suffered grave injury or death.

[78] In another similar case, R v Brandon Wyatt Sutherland, 2015 NSSC 354, the 19 year old
offender was intoxicated at the time he fired a single shot through the sleeping victim’s bedroom
window, hitting the wall directly above the victim’s bed. The accused had gone in search of the
 Page: 19

victim’s residence with the firearm, after the victim had attended the offender’s house the day
before armed with a bat over a drug-related matter; the victim was injured by the bat and another
weapon that night and sought treatment in hospital. At sentencing, the offender was found to be a
good candidate for rehabilitation having entered an early guilty plea, was remorseful, had no
criminal record, and had completed programming while in custody awaiting sentencing;
aggravating was the fact that the shooting was premediated and committed while the accused was
on bail for an impaired driving offence. In sentencing the accused to the five year mandatory
minimum as a prohibited weapon was employed, the Court found at para 23:

Mr. Sutherland has a high degree of moral culpability for his actions. Following an
altercation from the previous evening he chose to travel to the victim’s residence at
night and fire through the victim’s window with a sawed-off shotgun. The public
must be protected from people who decide to settle differences with guns. Law
abiding citizens expect a sentence that demonstrates the courts strong
condemnation of gun violence.

[79] The need for denunciation and deterrence in these types of matters is equally, if not more
important in Nunavut than in other Canadian jurisdictions. Hunting rifles are prevalent in Nunavut,
and resorted to far too often for violent purposes.

[80] Mr. Ookowt is young, entered a guilty plea and had no criminal record. While his
intoxication and the assault and bullying he suffered at the hands Arnold are relevant in explaining
what motivated him to fire the rifle, these factors cannot justify this offence and his moral
blameworthiness remains high. The seriousness of an offence under s 244.2(1)(a), and its
premeditated nature in this case which led Mr. Ookowt to shoot through a window of what he
believed to be his target’s home, necessitates that the focus must be on Mr. Ookowt’s offending
behaviour; personal factors must necessarily take on a lesser role: Oud at para 65. As a result,
Parliament’s deterrent mandatory minimum sentence of four years is not a grossly disproportionate
sentence for this offence or this offender; it is not “so excessive as to outrage the standards of
decency”: Lloyd at para 24.

[81] In light of this conclusion, we do not find that the four year mandatory minimum would be
cruel and unusual punishment as going beyond what is necessary to achieve a valid penological
goal in this matter. We conclude, as did McMillan, that a fit and proportionate sentence for Mr.
Ookowt would be in the range of four years’ imprisonment.

E. Reasonable foreseeable hypotheticals

[82] The recent case of R v Newborn, 2020 ABCA 120 at para 45 [Newborn], summarized the
following principles applicable to determining whether a proposed hypothetical offender is
“reasonable” when assessing gross disproportionality of a mandatory minimum sentence. Those
principles include:
 Page: 20

• The reasonable hypothetical offender must demonstrate circumstances that may

reasonably arise (Nur at para 68).

• What is “reasonable” is grounded in judicial experience and common sense (Nur at

para 62).

• Fanciful, far-fetched, or remote hypotheticals are not reasonable (Nur at paras 62, 68;
Goltz at 506).

• A reasonable hypothetical offender may have personal characteristics relevant to people

who may be caught by the mandatory minimum (Nur at para 76).

• Reported cases illustrate the range of real-life conduct captured by the offence and can be
used to inform what is reasonable (Nur at para 72).

[83] As Newborn states at para 49: “. . .the reasonable hypothetical inquiry that exists in the
case law ‘excludes using personal features to construct the most innocent and sympathetic case
imaginable’: Nur at para 75”, and the logic of the gross disproportionality analysis requires a court
to compare only sentences for convictions for the same offence; see also EJB. Further, as found
by the Court in Oud at para 32:

Unlike the hypothetical offenders contemplated in Nur and Lloyd respectively,

s 244.2 does not apply to near-regulatory offences or capture, in the words of Lloyd
at para. 28, ‘a large number of situations, varying greatly in an offender’s
blameworthiness’. My conclusion is rooted in the specific language of s. 244.2
which is directed with particularity to certain narrow actions, and the gravity of that
conduct.

[84] While Mr. Ookowt provided hypotheticals to the sentencing judge, none of those were
commented upon in the decision below. The hypotheticals were again raised before this Court, and
Mr. Ookowt has also provided a new hypothetical on appeal. In our view however, none of these
hypotheticals would render the four year mandatory minimum grossly disproportionate to the
offence or the offender.

[85] In the first hypothetical presented below, the offender fires a gun at a residence as a prank.
Such conduct is clearly and reasonably within the “narrow actions” caught by s 244.2, however
the gravity of that conduct is not lessened because the offender’s motive was a meant to be a prank.
Such a motive, coupled with the intention to discharge a weapon at a residence knowing or being
reckless as to whether another person is in the residence, falls directly into the type of dangerous
conduct the mandatory minimum is meant to address. As stated by the Supreme Court of Canada
in Morrissey at para 53:
 Page: 21

Perhaps the most egregious hypotheticals reviewed are individuals playing with
guns. Firearms are not toys. There is no room for error when a trigger is pulled. If
the gun is loaded, there is a sufficient probability that any person in the line of fire
could be killed. The need for general deterrence is as great (if not greater) for the
hypothetical offenders playing with guns as it is for people such as the [accused].

[86] In the second hypothetical, an offender who has “mental problems fires a gun at a residence
at least in part because of his mental problems.” As the Crown noted, an offender in such
circumstances has resort to a defence of mental disorder if on a balance of probabilities, the act
was committed “while suffering from a mental disorder that rendered the person incapable of
appreciating the nature and quality of the act. . . or of knowing that it was wrong”: s 16 of the
Criminal Code.

[87] In all cases, the Crown is required to prove the necessary mens rea for the offence beyond
a reasonable doubt; namely, that the offender intended to discharge the firearm into or at a place
knowing that or being reckless as to whether another person is present. Where those elements are
proven, the seriousness of the offence remains grave even if committed by an offender who is
under some mental stress or anxiety at the time. This case is one such example; Mr. Ookowt was
under the mental stress and anxiety of just having been assaulted by a long-time bully when
committing the offence; the sentencing judge describing it as: “tripped the switch in [Mr.
Ookowt’s] brain that he had to send a message to Arnold by firing a shot”. But intentionally firing
a rifle at a residence is neither a lawful means to send a message, nor an acceptable outlet for
mental distress.

[88] The Crown also provides the case of R v Crockwell, 2013 NLTD(G) 23 [Crockwell]. There,
while the sentencing judge held that undiagnosed mental health issues mitigated the seriousness
of the offender’s conduct, the gravity of the offences, including a s 244.4 offence, was such that
the mandatory minimum was not grossly disproportionate: Crockwell at paras 34-40, 56.

[89] In the third hypothetical, the offender is an abused spouse who after years of abuse lashes
out and fires a gun into the spouse’s residence. If the offender successfully invokes a defence
pursuant to R v Lavallee, [1990] 1 SCR 852, 55 CCC (3d) 97, the result will be acquittal and no
criminal liability. However, where an offender is convicted under s 244.2(1)(a), by reason of acting
in a context other than a reasonable apprehension of death or grievous harm, it cannot justify
intentionally discharging a firearm into a residence; nor does it reduce the offender’s moral
culpability to the degree of rendering the mandatory minimum grossly disproportionate, abhorrent
or intolerable.

[90] Mr. Ookowt raises a further hypothetical on appeal:

A chronically abused woman returns home to find that her abusive husband has
barricaded the door, is drinking and her children are inside. She shoots through the
front door in an attempt to enter. At trial she argues a Lavallee-type defence. That
 Page: 22

being – chronic abuse led her to believe that harm to the children was reasonable.
The trial judge rejects her defence of another based on lack of imminent harm, and
finds that it would have been reasonable for her to summon the police. She is found
guilty, but the trial judge determines that her moral blameworthiness is low and her
actions were brought on by panic and informed by her previous abuse.

[91] Again, this hypothetical must fail. Beyond raising significant concerns that this
hypothetical is far-fetched in that to protect her children, the offender would shoot at the door of a
place while her children are inside and may be struck, the offender’s moral blameworthiness in
this scenario remains high. In intentionally discharging the firearm at the residence, the offender
is not merely reckless about whether there are persons inside the residence; the offender knows
there are children inside and there is a risk a bullet will strike a child. The use of a firearm is never
the answer to a domestic dispute, but particularly in situations which risk the most innocent of
victims – children. There is simply no room for the self-help envisioned in this scenario, which
remains an extremely dangerous act completely disproportionate to momentary panic or the wrong
the offender suffered from past abuse.

[92] Finally, the Crown referenced the cases of R v Kakfwi, 2018 NWTSC 13 and R v Cardinal,
2018 NWTSC 12, in which the four year mandatory minimum for offences contrary to s
244.2(1)(b) was struck down on the same hypothetical by Chief Justice Charbonneau. As the
circumstances and the hypothetical in those cases involve a different offence, intentionally
discharging a firearm while reckless as to the life or safety of another person, it is not a reasonable
example pertaining to the precise provision challenged in this matter: see Goltz at 519. Regardless,
in the Kakfwi/Cardinal hypothetical of a young, intoxicated, despondent Indigenous offender,
with a loaded rifle under his chin and in the act of pulling the trigger, thwarted in his attempt to
commit suicide by having the rifle knocked away, the innocence of the accused remains
debateable. Whether the consequential discharge that puts a bullet through an exterior wall of the
house would ever satisfy beyond a reasonable doubt either the actus reus or mens rea requirements
for intentionally discharging a weapon into or at a place while knowing or being reckless as to
whether others are present, is questionable. This is not a reasonable hypothetical under s
244.2(1)(a).

VI. Conclusion

[93] In retaliatory reaction to being assaulted and bullied, Mr. Ookowt fired a rifle into a home
knowing that or being reckless as to whether another person was present in the place. Considering
both the offence and the offender, we conclude that the sentence of two years less a day imposed
by the sentencing judge was disproportionate, unfit and failed to meet the need for denunciation
and deterrence in this matter. We further conclude that the four year mandatory minimum sentence
under s 244(3)(b) is not grossly disproportionate in all of the circumstances; nor do the reasonable
hypotheticals raised establish gross disproportionality under the second stage of the Nur test.
 Page: 23

[94] Accordingly, the Crown’s appeal is allowed. The declaration of unconstitutionality of

s 244.2(3)(b) and the sentence imposed by the sentencing judge is set aside, and a four-year
penitentiary term is substituted.

[95] However, given the significant period of time that has elapsed since Mr. Ookowt was
sentenced in September of 2017, and given that he has now finished his sentence, we stay the
service of the sentence of imprisonment.

Appeal heard on September 17, 2019

Reasons filed at Iqaluit, Nunavut

this 5th day of June, 2020

I concur:

Authorized to sign for: Shaner J.A.

Schutz J.A.

I concur:

Authorized to sign for: Greckol J.A.

 Page: 24

Appearances:

Janna Hyman
for the Appellant

Scott Cowan
for the Respondent