R. v. Itturiiligaq, 2020 NUCA 6
MANDATORY MINIMUM - DOUBLE MENS REA
Terminology
Double mens rea - Mens rea refers to the “guilty mind” or mental element of a criminal offence. For example, having the intention to commit a particular criminal act. Double mens rea offences refer to criminal offences with two mental elements. In this case, section 244.2(3)(b) of the Criminal Code includes two mental elements: (1) intentional discharge of a firearm into or at a place, paired with (2) knowledge or recklessness that someone is present. Both elements must be proven beyond a reasonable doubt.
Mandatory Minimum Penalty (MMP) - The legislature may choose to prescribe a mandatory minimum for certain offences. If an accused is found guilty (or pleads guilty) of such an offence, the judge is bound by law to sentence the accused to the specified mandatory minimum term of imprisonment. While judges generally enjoy wide discretion in sentencing, criminal offences with mandatory minimums constrain their discretion and remove their ability to reduce a sentence beyond a certain threshold.
Inuit Qaujimajatuqangit (IQ): Inuit law and social governance. IQ includes the values of Inuuqatigiitsiarniq (respecting others, relationships and caring for others), Aajiiqatigiinniq (consensus-based decision-making), and Piliriqatigiinniq or Ikajuqtigiinniq (working together). For more on IQ and its use within Nunavut law, see the sentencing decision, R v Anugaa, or R v. Ippak.
Facts
Itturiligaq went to a house where his partner was with her friends. He asked his partner to come back home with him, which she refused. He returned home and came back to the house with a rifle. He fired at the roof of the house. When arrested, he confessed and pleaded guilty to intentionally discharging a firearm at a place pursuant to s. 244.2(3)(b) of the Criminal Code. At trial, he challenged the constitutionality of the four-year mandatory miinimum under the Nur framework (see below for Nur test).
History
The trial judge, Bychok J, ruled that the mandatory minimum was unconstitutional and, therefore, of no force and effect. This is because the sentence would be grossly disproportionate to the crime, and constituted cruel and unusual punishment. He accordingly sentenced Itturiligaq to a reduced sentence that could be served in Iqaluit (as opposed to the offender being sent to a penitentiary in the south, away from his partner and daughter).
Decision
The Court of Appeal disagreed that the sentence imposed constituted cruel and unusual punishment. The four-year sentence did not meet the bar set in Nur because of the gravity of the offence. The Court of Appeal held that the four-year sentence was not grossly disproportionate given that the charged offence was a double mens rea offence. Moreeover, the Gladue factors present in the case, while emphasized by the trial judge, did not diminish the high level of moral blameworthiness present in the case.
The Nur Test
The SCC decision in Nur is the leading case in determining whether a mandatory minimum penalty is constitutional under section 12 of the Charter (which protects individuals from cruel and unusual punishment):
With regard to the sentencing principles set out in s 718 of the Criminal Code, what is a proportionate sentence for the offence?
Does the mandatory minimum penalty result in a grossly disproportionate sentence? This was later defined in R v. Lloyd as “so excessive as to outrage standards of decency” and “abhorrent or intolerable” .
If the answer to #2 is yes, then the judge must proceed to a section 1 analysis. Section 1 guarantees that our rights and freedoms are subject only to reasonable limits prescribed by law as can be “demonstrably justified in a free and democratic society.” Unless justified under section 1, the MMP is unconstitutional.
Role of Inuit Qaujimajatuqangit
Both levels of court differed greatly on how IQ should be considered in the context of the case. The trial judge relied heavily on the principles of IQ in his assessment of whether or not Itturiligaq would be accepted back into his home community, or by his partner. While no formal Gladue report was filed, the trial judge noted that the principles of IQ would inform his judgement. He also did not call specific evidence on the principles of IQ in the community where the offence took place. He nonetheless concluded that while the accused had violated several values of Inuit law, sending him to a southern penitentiary for four years would “outrage Nunavummiut’s collective and traditional sense of decency and justice.”
The Court of Appeal disagreed with this approach, saying that
“without any evidentiary record to assess whether the Inuit community’s application of its own Inuit Qaujimajatuqangit would have necessarily or inevitably resulted in a lower sentence, it was not correct to assume that in a domestic dispute where a powerful weapon was fired in anger at an occupied home, the Inuit community itself would have placed any mitigating weight on the victim’s willingness to continue a relationship with Mr. Itturiligaq.”
The Court of Appeal, therefore, is calling for IQ to be brought in through a specific evidentiary inquiry in the affected community. In contrast, the trial judge generally referred to principles of IQ when sentencing the accused.
Read the full decision here.
Note: This post was written by Adrienne Tessier. Adrienne is a rising 3L at the McGill University Faculty of Law. She is passionate about constitutional and public law, particularly access to justice. She recently completed an internship with Peter Sankoff's 100 Interns program with Neha Chugh, focussing on s 276 and s 278 applications. This post was copy edited by Sara Little.