Nunavut judge says mandatory minimum sentence 'grossly unfit' for Kimmirut man

A Nunavutjudge has ruled thatthe mandatory minimum sentencewould be "grossly unfit" and violate the rights of a man in Kimmirut convicted of a firearms charge.

According to court documents, 24-year-old Simeonie Itturiligaq pleaded guilty to intentionally discharging a firearm at a house, knowing it was occupied.

Under the Criminal Code, the offence carries a mandatory minimum sentence of four years imprisonment. But on Oct. 9, Justice Paul Bychok sentenced Itturiligaq to two years less a day.With 416 days worth of credit for time served in pre-trial custody, Itturiligaq will serve 303 days in jail, followed by two years of probation.

Itturiligaq's lawyer, Lana Walker, hadchallenged the minimum sentence, arguing it constitutedcruel and unusual punishment and violated Itturiligaq's Gladue rights.

The mandatory minimum regime is, in reality, a perpetuation in Nunavut of last century's systemic colonialism and discrimination.-Justice PaulBychok

In Bychok's reasons for hissentencing decision, a written version of which was released on Tuesday, the judge agreed with the defence.

"The mandatory minimum regime is, in reality, a perpetuation in Nunavut of last century's systemic colonialism and discrimination," he said.

Mandatory minimum sentences for violent firearm crimes werepassed as part of federal legislation during Stephen Harper's Conservative government era and came into effect in October 2009.

The national Truth and Reconciliation Commission has since called on the federal government to amend the Criminal Code to allow judges to depart from mandatory minimums and other restrictions on criminal sentences.

Domestic incident

According to the court decision, Itturiligaq was charged following an incident on the night of Jan. 8, when he went to a house where his girlfriend was visiting friends.

When she refused to leave with him, Itturiligaq told her he "could get worse" and went home to retrieve his .243-calibre Remington 7600 rifle.

After returning to the house, when his girlfriend again refused to leave, Itturiligaq fired one shot at the house. The shot entered above the front doorand exited through the roof.

Itturiliagaq's girlfriend then came outside and he struck her on the leg with the butt of his rifle before they left together. He was sober at the time of the incident.

According to the decision, Itturiligaq told police he was angry at his girlfriend because he felt she was not spending enough time with him or their young daughter. He said he intentionally aimed at the roof of the house andadmitted he knew it was illegal to fire a gun at a house with people inside.

Unique circumstances

Bychok noted a number of aggravating factors in the case, including Itturiliagaq'scontrolling andthreatening behaviour toward his partner and the fact thatfirearms-related violence is "extremely serious."

But the judgealso considered that Itturiliagaq has no prior criminal record, hadentered a guilty plea early on, andhas worked to better himself since his arrest. Bychokalso found the circumstances of the incident were "less severe than most of the related cases from Nunavut."

Under the Criminal Code, Bychok said, he also must consider Itturiligaq's unique circumstances as an Inukoffender, as well as allsentencing optionsother than jail time.

"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," he said.

The judge added that because there is no federal penitentiary in Nunavut, if he were to apply the minimum sentence in this case, Itturiliagaq would have to serve his time more than 1,000 kilometres from his home, family, friends and culture. This would have a "profoundly negative impact" on Itturiliagaq, Bychok said.

The judge concluded thatsendingItturiliagaqto a federal penitentiary would "outrageNunavummiut'scollective and traditional sense of decency and justice."

"In many ways, the federal penal system is a twenty-first century continuation of the philosophy of forced resettlement, Residential Schools and southern tuberculosis sanitaria," he said.

"Many Nunavummiut cannot understand why we continue to let our offenders be sent South."