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

Simeonie Itturiligaq has been sentenced to 2 years less a day for discharging a firearm at an occupied house, a charge that carries a mandatory minimum sentence of 4 years under the Criminal Code.

Simeonie Itturiligaq sentenced 2 years less a day for discharging firearm at occupied house

In the Nunavut Court of Justice in Iqaluit, Bychok found that sending Itturiliagaq to a federal penitentiary would 'outrage Nunavummiut's collective and traditional sense of decency and justice.' (Nick Murray/CBC)

A Nunavut judge has ruled that the mandatory minimum sentence would 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, had challenged the minimum sentence, arguing it constituted cruel 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 Paul Bychok

In Bychok's reasons for his sentencing 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 were passed 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 door and exited through the roof.

Simeonie Itturiligaq was charged following a domestic incident in Kimmirut on the night of Jan. 8, 2018. (submitted by David Joanasie)

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 and admitted 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's controlling and threatening behaviour toward his partner and the fact that firearms-related violence is "extremely serious."

But the judge also considered that Itturiliagaq has no prior criminal record, had entered a guilty plea early on, and has worked to better himself since his arrest. Bychok also 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 Inuk offender, as well as all sentencing options other 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 that sending Itturiliagaq to a federal penitentiary would "outrage Nunavummiut's collective 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."