Académique Documents
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TABLE OF CONTENTS
I. OVERVIEW ............................................................................................................... 4
II. FACTS ........................................................................................................................ 4
III. THE LAW ........................................................................................................... 5
A. Intentionally discharging a firearm ..................................................................... 5
B. Cruel and unusual punishment ............................................................................ 6
C. Sentencing Aboriginal offenders and Gladue principles .................................... 6
D. R v Nur ................................................................................................................ 8
i. The first branch of Nur – objectives and principles of sentencing ............... 8
ii. The second branch of Nur – gross disproportionality ............................. 10
IV. POSITION OF THE PARTIES ........................................................................ 10
A. The Respondent Crown..................................................................................... 10
i. The gravity of the offence ........................................................................... 11
ii. Circumstances of the offender and the offence ....................................... 11
iii. Actual anticipated effect of the sentence on the offender ....................... 11
iv. Penological goals and relevant sentencing principles ............................. 11
v. Valid alternatives to the punishment imposed ........................................ 12
vi. Sentences for other crimes in Nunavut ................................................... 12
B. The Applicant Defendant .................................................................................. 12
i. The gravity of the offence ........................................................................... 12
ii. Circumstances of the offender and offence ............................................. 13
iii. Actual anticipated effect of the sentence on the accused ........................ 13
iv. Penological goals and relevant sentencing principles ............................. 14
V. ISSUES ..................................................................................................................... 14
VI. ANALYSIS ....................................................................................................... 15
A. What is the proportionate sentence for this offender in these circumstances? . 15
i. The significance of Gladue ......................................................................... 15
ii. Gravity of the offence ............................................................................. 18
iii. Circumstances of the offender and the offence ....................................... 18
a. Aggravating factors ............................................................................. 18
b. Mitigating factors ................................................................................ 19
c. Criminal Records ................................................................................. 19
d. The Canadian Victims’ Bill of Rights .................................................. 20
e. Mr. Itturiligaq ...................................................................................... 20
3
I. OVERVIEW
[4] Iqaluit was shut down by hurricane force winds on October 5th. I
heard the application on October 9th. These are my reasons for
judgment.
II. FACTS
[6] The accused’s girlfriend, Leesa Lyta, was visiting with friends at
house 207-D the evening of January 8, 2018. Sometime around
11:15 pm, the accused went to house 207-D. He was sober. He
repeatedly asked Ms. Lyta to go home with him. She refused to
leave. The accused told her he “could get worse” and he left.
[7] The accused went home where he retrieved a .243 calibre Remington
7600 rifle. He placed the rifle on his ski-doo and then returned to
1
Criminal Code, RSC 1985, c C-46 [Criminal Code], section 244.2.
2
Ibid, section 244.2(3)(b).
3
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].
4
R v Gladue, [1999] 1 S.C.R. 688, [1999] SCJ No 19 [Gladue].
5
[8] The accused left the house and went back to his ski-doo. He picked
up his rifle and fired one shot which entered the house above the front
door near the roof line. The bullet exited through the roof. Ms. Lyta
then left the house and went up to the accused. He struck her on the
leg with the rifle butt, and they both mounted the ski-doo. They then
returned together to their residence – house 7A.
[9] At approximately 11:45 pm, the police arrived at house 7-A. They
discovered the accused’s rifle behind the water tank. The rifle was
not loaded nor was it lawfully secured. The accused was arrested
and returned to the detachment. On arrest, the police discovered
one loaded and one partially loaded rifle magazines in the pocket of
the accused’s coat.
[10] Cst. Christopher Spiers interviewed the accused on January 10, 2018.
The accused confessed to the crimes. He took full responsibility for
his actions. He said he had been angry and upset with Ms. Lyta
because he felt she was not spending enough time with him and their
two-year-old daughter, Emma. He was angry that she had gone to
her friend’s place without telling him.
[11] The accused admitted that he had taken a shot at the house. He said
he aimed at the top of the house. He said he did not aim at anyone.
He admitted he knew that he was not allowed to aim a rifle at anyone.
He said he deliberately aimed at the top of the house.
[13] The MMP for this offence is stated in s. 244.2(3)(b) and provides that
the accused “is liable to imprisonment of a term of not more than 14
6
5
Canada Act 1982 (UK), 1982, c 11 [Constitution Act 1982].
6
Criminal Code, supra note 1, s 718.2(e). This principle is also repeated in the Youth Criminal Justice Act,
SC 2002, c 1, s 38(2)(d).
7
[16] Jail in Canada is imposed as a last resort for all Canadians no matter
their ethnic origins.
[18] Gladue does not say that Aboriginal offenders are to be given better
treatment than non-Aboriginal offenders. Gladue does not equate
with an Aboriginal sentencing discount. Nor must the judge draw a
causal link between systemic background issues and the offence.7
Gladue reinforces the constitutional duty of judges to take “judicial
notice of the systemic or background factors to sentencing which is
relevant to aboriginal offenders”.8 This is an imperative constitutional
and moral duty for judges of the Nunavut Court of Justice.
[19] The Nunavut Court of Justice is a Gladue court.9 Our Court must
account for the unique circumstances of Inuit, their culture and
society. If a sentence is to be considered just, it must be rooted in the
realities of the offender and our society. Gladue principles are the
lens through which we look at the circumstances of every case.
Gladue principles will be prominent in my analysis of the alleged
Charter breach of s. 12 in this case. I will say more about Gladue
principles shortly.
7
R v Ipeelee, 2012 SCC 13 para 83, [2012] 1 SCR 433 [Ipeelee].
8
Gladue, supra note 4 at paras 83 and 84.
9
Statistics Canada. 2017. Nunavut [Territory] and Canada [Country] (table). Census Profile. 2016 Census.
Statistics Canada Catalogue no. 98-316-X2016001. Ottawa. Released November 29, 2017.
https://www12.statcan.gc.ca/census-recensement/2016/dp-pd/prof/index.cfm?Lang=E (accessed October 9,
2018).
8
D. R v Nur
[20] The Supreme Court of Canada has set out the approach judges are to
take respecting allegations of a s. 12 Charter breach. The leading
case is R v Nur.10 Nur sets out a three-part test:
[21] If the answer is no – that the MMP is an appropriate sentence for Mr.
Itturiligaq – then the Court in Nur directs the judge to consider another
issue: would it be reasonably foreseeable that the MMP would breach
the s. 12 of the Charter of other persons?12
[22] The first branch of the Nur test requires the judge to apply the
objectives and principles of sentencing to the circumstances of the
case in the absence of the MMP. These objectives and principles are
set out in Part XXIII of the Criminal Code.
10
R v Nur, 2015 SCC 15, [2015] 1 SCR773 [Nur].
11
Ibid at para 46.
12
Ibid at para 65.
9
[25] In plain language, a sentence must fit the crime and the offender.
This fundamental principle will be at the forefront of my decision.
[26] The Criminal Code also requires a judge to consider and apply other
sentencing principles.
[28] A just sentence also requires a judge to impose similar sentences for
similar offences committed by similar offenders.16 We call this the
parity principle. That principle acknowledged, no two offences or
offenders are ever the same. This reality makes the task of crafting a
just individual sentence an art, and not a science.
[29] Where multiple offences are involved, a just sentence must not be
unduly long or harsh.17 We call this the totality principle.
13
Criminal Code, supra note 1, s 718.
14
Ibid, s 718.1.
15
Ibid, s 718.2.
16
Ibid, s 718.2(b).
17
Ibid, s 718.2(c).
18
Ibid, s 718.2(d).
10
[31] The second branch of Nur requires the judge to determine whether
the MMP would be grossly disproportionate. The Supreme Court of
Canada in R v Morrisey has explained that this measure refers to
“punishment which is so excessive as to outrage our society’s sense
of decency”; punishment which would be “abhorrent or intolerable”. 20
[32] The Morrisey framework, followed in Nur, requires the judge to use a
six step analysis. The judge must consider:
[33] I will outline the positions of each party in reference to the Morrisey
framework.
A. The Respondent Crown
[34] The Crown urges the Court to impose the four year MMP which
would, by necessity, be served in a southern penitentiary.
19
Ibid, s 718.2(e).
20
R v Morrisey, 2009 SCC 39 at para 26, [2000] 2 SCR 90 [Morrisey].
21
Ibid at para 28.
11
[35] The Crown asserts that firearm related offences are of “the utmost
seriousness and gravity”.22 The double mens rea requirement of
intention and knowledge means the accused has an elevated moral
blameworthiness.23
[36] The Crown asserts that denunciation and deterrence figure foremost
in firearm related offences. Personal considerations particular to the
offender while relevant “are to be given less weight”.24 The Crown
highlighted several aggravating factors: the incident’s domestic
context, the prevalence of firearm related offences in Nunavut and the
deliberate nature of the accused’s actions. Mitigating factors are the
early guilty plea and the lack of a prior criminal record.
[37] The Crown says that the MMP does not prevent the accused from
benefitting from “the usual sentence reductions” like credit for pre-trial
custody and full parole eligibility after serving 1/3 of his sentence.
Indeed, the Crown says that the accused could be released one year
after receiving the MMP.
[38] The Crown says Parliament “is not compelled to enact sentencing
provisions which ‘simultaneously pursue all of the traditional
sentencing principles’”.25 Parliament intended to give “priority” to
denunciation and deterrence, including general deterrence to address
the “pressing and substantial concerns regarding the increase in
firearm violence in Canada.”26
22
Factum of the Respondent, filed September 26, 2018, at paras 21 to 23.
23
There are two aspects which make an act a criminal offence – the intention to commit the offence (mens
rea), and the physical act of carrying it out (actus reus). The double mens rea requirement refers first, to
the intention to discharge the fire arm and, second, knowledge that the targeted residence was occupied.
24
Ibid at para 24.
25
Ibid at para 30, citing Morrisey at para 46.
26
Ibid at paras 31 and 32.
12
[40] The Crown asserts that the accused would be liable to a “significant”
jail term even in the absence of the MMP. Crown Counsel says the
appropriate sentence is in the four year range because firearm related
offences are too common in Nunavut and they require “deterrent and
exemplary sentences”. This accused possesses a higher degree of
blameworthiness than other reported cases. This is so because it
was domestic violence and a deliberate act.28
[41] Defence Counsel urges the Court to strike down s. 244.2(3)(b) and to
impose a two year penitentiary term less credit for remand time
followed by probation for 18 months.
[43] Defence Counsel stated that the accused fired a single shot, he did
not intend to hurt anyone and no one was injured. She acknowledges
this offence requires a “stern” response for this “highly dangerous
behaviour”. She also acknowledges that greater blameworthiness
attaches to the accused because he knowingly broke the law.30
27
Criminal Code, supra note 1, s 742.1(e)(iii).
28
Factum of the Respondent, supra note 22 at paras 34 to 38.
29
Application Record on Constitutional Issue, filed August 28, 2018 at para 29 [Applicant’s Factum].
30
Ibid at para 30.
13
[44] Defence Counsel noted the offender is a 24-year-old Inuk who was
born and raised in Nunavut. Thus, the Court must apply the Gladue
framework.31 The offender has been in an on-again off-again
relationship with Ms. Lyta for four years. They have a two-year-old
daughter who lives with them. The accused had a traditional
upbringing. His Inuit culture and knowledge are said to be “very
important to him”. He hunts and fishes for country food for
sustenance, which he shares with family and community. 32 The
offender has completed several programs while on remand. He has
been a valuable participant in the Town Crew Program and Inuit
Cultural Skills Program. 33
[47] Defence Counsel asserts that the effect of the MMP would be
“severe”. Even after pre-sentence credit, the offender would have to
serve three years in a federal penitentiary. She said:
31
Ibid at para 32.
32
Ibid at para 33 to 34.
33
Ibid at para 35.
34
Ibid at paras 36 to 39.
35
Ibid at para 40.
14
[48] Defence Counsel reminded the Court that Gladue principles apply.
The Court must consider “systemic and background factors when
assessing the offender’s culpability and moral blameworthiness”.37
She asserts that the Court must show restraint. The offender has no
prior criminal record.
[49] Defence Counsel concluded that that the circumstances of this case
“present as less severe than most of the related cases from
Nunavut”.38
V. ISSUES
[51] For the following reasons, I rule that the MMP would be grossly
disproportionate in the circumstances of this case. The MMP clearly
violates the offender’s s. 12 Charter rights.
36
Ibid at para 43.
37
Ibid at para 40.
38
Ibid at para 57.
15
VI. ANALYSIS
[54] My analysis of the first branch of the Nur test follows the Morrisey
framework.
[55] Before I embark on the Morrisey analysis, I must say a few more
words about Gladue and the centrality of Gladue principles in the
Nunavut Court of Justice.
[57] In his written submissions, Crown Counsel cited Saunders JA. in Oud
who wrote: “I cannot conceive of an offence under s. 244.2 for which
the mandatory minimum penalty would be said to be cruel and
unusual punishment”.40 With all due respect, the view from the
vantage point of the Nunavut Justice Centre in Iqaluit is very different
from that in downtown Vancouver.
39
R v McMillan, 2016 MBCA 12, 326 Man R (2d) 56 [McMillan]; R v Oud, 2016 BCCA 332, 339 CCC
(3d) 379 [Oud].
40
Factum of the Respondent, supra note 22 at para 41; R v Oud, supra note 39 at para 50.
16
41
R v McMillan, supra note 39 at para 1, per Chartier CJ.
42
See, R v Mikijuk, 2017 NUCJ 2; 2017 NUCA 5 [Mikijuk].
43
Statistics Canada, Census Profile, supra note 5.
44
Mikijuk, supra note 42 at paras 22 to 24.
17
[61] Like Mikijuk, the present case highlights the challenges in applying
pan-Canadian legal principles in Nunavut. As I said earlier this year
in R v Anugaa:
[63] This is not to say that Inuit are not subject to the same laws – and
sentencing principles – as all other Canadians. Reference to Inuit
Qaujimajatuqangit is, however, a meaningful application of the clear
Gladue direction to judges that Aboriginal persons are to be
45
R v Anugaa, 2018 NUCJ 2 at para 42 [Anugaa].
18
[64] The rationale stated in Gladue for this direction touches upon
considerations of fundamental justice as it is understood in Nunavut:
[66] The foregoing considerations must guide and inform my Nur analysis.
46
Gladue, supra note 4 at para 33.
47
Ibid at para 70.
48
R v Oud, supra note 39 at para 38.
19
[69] Mitigating factors serve to lessen the offender’s sentence. There are
several important mitigating factors in this case:
49
Criminal Code, supra note 1, s 718.2(a)(ii).
20
[71] Victims of crime have the right to be heard in court.50 They may read
out loud, or file, a Victim Impact Statement. These statements bring
to life the real effect crime has on peoples’ lives. One cannot judge a
crime without understanding how its victims were affected. These
statements help ensure victims are not ignored during the sentencing
process.
[72] I was told that Ms. Lyta declined to file a Victim Impact Statement.
Crown Counsel did not provide any information concerning the other
three victims – the other people who were in the house during the
incident.
e. Mr. Itturiligaq
[73] The offender is 24-years-old. He was born in Iqaluit but spent his first
15 years in Hall Beach. Since then, he has lived in Kimmirut51 with
his father. He has five siblings. His parents divorced when he was
young. He had a traditional upbringing and he hunts and fishes for
sustenance. He is said to be an “avid” hunter. He completed grade
12 and he has a history of employment in the wage economy. He had
been employed as a security guard at the local Health Centre at the
time of his arrest.
[74] The offender has been on remand since this January. He has
completed four rehabilitative programs while in custody at Makigiarvik
Corrections Centre, a minimum security annex of the Baffin
Correctional Centre in Iqaluit: Inside Out, Substance Abuse Program,
Alternatives to Violence, and Healthy Inuit Families Program. He also
participated successfully in the six week Town Crew Program and the
Inuit Cultural Skills Program (ICSP).
50
Canadian Victims’ Bill of Rights, SC 2015, c 13.
51
Population of 389 in 2016. Statistics Canada. 2017. Kimmirut, HAM [Census subdivision], Nunavut and
Nunavut [Territory] (table). Census Profile. 2016 Census. Statistics Canada Catalogue no. 98-316-
X2016001. Ottawa. Released November 29, 2017.
https://www12.statcan.gc.ca/census-recensement/2016/dp-pd/prof/index.cfm?Lang=E (accessed October 9,
2018).
21
[78] The report also references numerous Gladue factors pertaining to the
offender:
52
Applicant’s Factum, supra note 29 at Tab 4 “Exhibit D” to Affidavit of William McDiarmid.
53
Ibid, “Exhibit E”.
54
Pre-sentence Report filed October 4, 2018 at 3 to 4.
22
[79] The offender was subject upon remand to an order forbidding contact
with Ms. Lyta. That condition was removed on May 14, 2018. Since
that time, Ms. Lyta has been visiting him at Makigiarvik where she
brings him country food. I was told that they wish their relationship to
continue.
[80] Nineteen years after Division from the Northwest Territories, Nunavut
still sends its federal offenders to southern Canadian penitentiaries.
Penitentiary time is intended for offenders who cause death or
grievous bodily injury to others. Penitentiary time is intended for serial
offenders of serious crimes. Penitentiary time is appropriate for
offenders who have become hardened criminals. Penitentiary time
over a thousand kilometres from home, family, friends and his culture
can be expected to have a profoundly negative impact on Mr.
Itturiligaq. Four years of penitentiary time in this case would sacrifice
four years of his life and rehabilitation on the altars of denunciation
and general deterrence.
23
[82] However, all Acts of Parliament are subject to Charter scrutiny. This
is so because the Constitution is the “supreme law of the land”.56 It is
the sworn duty of members of the judiciary to defend the Constitution,
the Rule of Law and the rights of Canadians.
[83] The first branch of the Nur analysis now requires that I apply the
regular objectives and principles of sentencing for the purpose of
comparing a proportionate – just and fit – sentence with the MMP. In
this context, it is important to recall that proportionality “is the sine qua
non of a just sanction”.57
[84] Above all, the sentence I would impose must serve to protect the
public, and to foster respect for our justice system.
[85] The law is clear: denunciation and deterrence are the primary
sentencing principles in cases of gun related violence. The
sentence I impose must condemn this extremely serious crime.
Serious crimes must be seen to have serious consequences.
Furthermore, a balancing of the aggravating and mitigating factors in
this case of serious domestic violence requires that the offender be
separated from the community.
55
Morrisey, supra note 20 at paras 43 and 46.
56
Constitution Act 1982, supra note 5, s 52.
57
Nur, supra note 10 at para 43, citing Ipeelee, supra note 7 at para 43. The Latin term sine qua non means
something on which another thing necessarily depends. Black’s Law Dictionary, 10th ed, sub verbo “sine
qua non”.
58
R v Cooper-Flaherty, 2017 NUCJ 11 at para 17 [Cooper-Flaherty].
24
[88] The Criminal Code also cautions the judge to exercise restraint. A jail
term must be no longer than what is necessary to accomplish the
objectives and sentencing. Judges are also to be especially aware of
the circumstances of Aboriginal offenders. Mr. Itturiligaq is a 24-year-
old first time offender. The sentence I impose ought not to crush his
spirit and hoped-for rehabilitation. However, there is no reasonable
alternative to imprisonment for this serious gun related domestic
crime.
[90] This examination focuses on the principle that similar cases ought to
be sentenced similarly. Counsel have cited four recent gun related
Nunavut cases.
59
Ibid at para 18.
60
R v Lyta, 2013 NUCJ 1; 2013 NUCA 10.
25
61
R v Utye, 2013 NUCJ 14.
62
Mikijuk, supra note 42.
63
R v Ookowt, 2017 NUCJ 22 [Ookowt].
26
[96] The sentence I would impose must strongly denounce this serious
case of domestic gun related violence. The sentence must put
denunciation and deterrence at the forefront. The deterrent message
must be strong. Serious crimes have serious consequences.
[98] Gun related violence also offends the proper use of firearms in Inuit
culture. Hunting is central to Inuit identity and community. Indeed,
the presence of harvesting rights in Article 5 of the Nunavut Land
Claims Agreement speaks to the central importance of hunting to the
individual and collective identity of Inuit.64 Many Nunavummiut also
continue to rely on country food for their sustenance. The sentence I
impose must reaffirm not just the necessity, but the centrality of
responsible firearm use in Nunavut.65
[99] Cases of domestic violence continue to fill our circuit court dockets in
every one of our communities. In this case, the offender bears a high
degree of moral blameworthiness for his abusive and controlling
actions. The Nunavut Court of Justice has been in the forefront in
condemning spousal and relationship violence. The sentence I
impose must do so as well.
[101] A just sentence must fit the crime and the offender. As I noted
earlier, proportionality is the fundamental principle in sentencing. In
this regard, the four Nunavut cases I reviewed above are instructive. I
64
Agreement Between the Inuit of the Nunavut Settlement Area and Her Majesty The Queen in Right of
Canada, 25 May 1993 (Ottawa, ON: Published under the joint authority of the Tungavik and the Hon T
Siddon, Minister of Indian Affairs and Northern Development, 1993), online: <
http://www.justice.gov.nu.ca/apps/UPLOADS/fck/file/NLCA.pdf > [Nunavut Land Claims Agreement or
NLCA]
65
Judges of the Nunavut Court of Justice sit with community elders while on circuit. Elders consistently
remind offenders that fire arms are not to be used to hurt or scare people; Inuit need and use fire arms for
hunting.
27
will focus on Mikijuk and Ookowt as they are the most pertinent
comparators.
[102] Mikijuk clearly was far more severe on the scale of seriousness than
the present case. The Crown in that case recommended a five year
penitentiary term. I imposed the four year MMP which the Crown did
not appeal. To impose the same four year sentence on Mr. Itturiligaq
as in Mikijuk would, among others, violate the principle that like cases
ought to be sentenced alike.
[103] The facts of Ookowt are much closer to the present case. Johnson
J. in that case found that the MMP breached Charter s. 12. He
sentenced that offender to territorial time of two years less a day
followed by probation. I find Johnson J.’s reasoning in Ookowt to be
persuasive. In my view, Ookowt is a well-reasoned precedent.
Ookowt is persuasive authority that Mr. Itturiligaq ought to receive a
jail term significantly less than the MMP.
[104] There were two key aggravating factors in Ookowt which are absent
here. First, Mr. Ookowt breached his bail conditions to keep the
public peace when he committed his crime. Second, Mr. Ookowt
decided to retrieve his father’s rifle to exact revenge on his assailant
while he was highly intoxicated. In my view, Mr. Ookowt’s moral
blameworthiness was arguably as high as that of Mr. Itturiligaq.
[105] I also agree with Johnson J.’s comments in Ookowt concerning the
uneven application of Gladue principles.66 Gladue principles are to be
applied no matter the gravity of the offence.67
[106] I stated earlier that justice must be rooted in the community it serves.
We find this fact rooted in the core of the Supreme Court of Canada’s
directions in Gladue and Ipeelee. It follows, in my view, that one
cannot sentence Nunavummiut without considering the precepts of
Inuit Qaujimajatuqangit.
[107] The norms of Inuit social governance were based, in part, on the
primacy of the interests of the group. The cohesion and security of
the group rested largely on cooperation and mutual support in a harsh
and unforgiving climate. Not surprisingly, forgiveness, reconciliation,
66
R v Ookowt, supra note 62 at paras 76 to 79.
67
Ipeelee, supra note 7 at para 83; Clayton Ruby et al, Sentencing, 9th ed. (LexisNexis, 2017) at 713 to
714.
28
[109] In this regard, there is some common ground between Inuit and
Qallunaaq legal norms. Most of us are familiar with the maxim that
justice must always be tempered with mercy.
[110] I must not lose sight of this youthful first-time offender’s efforts to
date and his real potential for rehabilitation.
[112] A just a fit jail sentence in this case would be in the range of 18
months to two years less a day in in territorial jail. The restraint
principle is a constitutional requirement which must be given more
than mere lip service. Given the history of recent gun-related violence
in Kimmirut, and its domestic context, the appropriate and least
restrictive sentence in this case would be two years less a day in jail
followed by probation for two years.
B. Gross disproportionality
[113] I turn now to the second branch of the Nur test – is the MMP grossly
disproportionate having regard to all the circumstances of the offence
and offender?
[114] I have just determined that the proportionate jail sentence in this
case is 2 years less a day, or 24 months less a day, in jail. The MMP
requires four years in a federal penitentiary or 48 months. The test is
29
[115] Where the offender will serve his sentence is also a significant factor
for Nunavummiut. The minimum security Makigiarvik Corrections
Centre is in Iqaluit and the offender has progressed extremely well
there. The offender is from Kimmirut. Kimmirut is the closest hamlet
to Iqaluit, and there is much traffic between the communities,
especially in winter. Ms. Lyta and their two-year-old daughter, Emma,
would be able to continue to visit him.
68
Final Report of the Truth and Reconciliation Commission of Canada, Volume One: Summary (James
Lorimer and Company Ltd., Toronto; 2015) at 173 Call to Action 32.
69
Ibid.
30
[122] In my view, the MMP is far removed from the least restrictive
sentence required to meet the objectives and principles of sentencing.
70
Sentencing, supra note 66 at 711, para 18.31.
31
[127] The test I must apply at this stage was set out by the Supreme Court
of Canada in Nur. I must decide whether the Crown has
demonstrated that the MMP has a “pressing and substantial objective”
and is “proportionate” to achieving that objective.71
[128] The Supreme Court has set out an extremely high bar for this part of
the analysis. In the words of McLachlin CJC.:
[130] I adopt the reasoning of McLachlin CJC. Having found the MMP to
be grossly disproportionate in this case, it cannot be seen to be
proportionate under s. 1.
B. Charter section 1 – Conclusion
VIII. SENTENCE
[134] You have been in custody for 277 days. You are entitled to receive
credit for pre-sentence custody at the rate of one-and-a-half-to-one, or
416 days. You will serve a further 303 days in jail.73
[135] This will be followed by probation for two years. You shall:
73
The apparent fault in my math is because months are calculated as 30 days for sentencing purposes.
33
[137] Good luck, Mr. Itturiligaq. No one wants to see you get into trouble
again.
[138] And again, I thank counsel for their excellent oral and written
submissions.
[139] Taima.
___________________
Justice P. Bychok
Nunavut Court of Justice