Mandatory minimum sentence for reckless use of guns is unconstitutional, rules judge

Two N.W.T. men will be spared mandatory minimum sentences after a Supreme Court judge agreed it violates the Charter of Rights and Freedoms this week.

Hypothetical circumstances used to argue 4-year sentence could be disproportionate to crime

Using a hypothetical situation proposed by a lawyer in N.W.T. Supreme Court last summer, Justice Louise Charbonneau ruled it's unconstitutional to apply a mandatory minimum sentence to two men facing charges for recklessly firing guns. (Walter Strong/CBC)

An N.W.T. judge has ruled mandatory minimum sentences for some gun crimes are unconstitutional.

Tony Howard Kakfwi is charged with recklessly firing a gun after he fired a rifle outside Fort Good Hope's annual band meeting in November 2016. Kakfwi then barricaded himself inside an apartment in the community's elders' complex, and fired several warning shots during a standoff with police. He faced a four-year mandatory minimum sentence.

In Inuvik, a man is facing the same charge from a 2016 incident where he attempted to kill himself with a sawed off shotgun. His friend knocked the gun away at the last second, causing the gun to fire through the front door of the house they were in. Because a sawed off shotgun is a prohibited weapon, the man faced a five-year mandatory minimum sentence.

No one was hurt in either case.

Both men are facing the mandatory minimum sentences in line with federal legislation passed in 2008.

To have a mandatory minimum sentence struck down because it violates the Canadian Charter of Rights and Freedoms protection against cruel and unusual punishment, lawyers must show the mandatory minimum is grossly inappropriate.

According to Justice Louise Charbonneau's Feb. 14 written decision, it's not enough to just prove that the sentence would be unusually harsh.

In the cases of Kakfwi and the Inuvik man, Charbonneau said the mandatory minimums wouldn't be grossly inappropriate.

But Canadian law gives lawyers another way to demonstrate mandatory minimum sentences can violate the Charter: They can come up with a hypothetical — yet realistic — situation to illustrate how the punishment could be "grossly disproportionate" to the circumstances of the crime.

In other words, "If the 'net is cast too wide,' there is a greater risk that the mandatory minimum will potentially result in a grossly disproportionate sentence for some offenders," according to Charbonneau's written judgment.

And that's what two Yellowknife lawyers did in N.W.T. Supreme Court last summer.

The Inuvik man's lawyer proposed a scenario where a young Indigenous person who has suffered from intergenerational residential school trauma tries to take his own life. So he takes his grandfather's gun and in the final moment, a friend or family member pushes the gun away. The gun fires, but nobody is hurt by the bullet.

Hypothetical scenario 'very realistic'

"Sadly, there is nothing remote about young men in Northern Canada struggling with suicidal ideations and arming themselves with firearms in times of distress," wrote Charbonneau in her judgment.

"There is also nothing remote about young Aboriginal people suffering from lived and intergenerational trauma … This hypothetical, tragically, is actually very realistic."

Charbonneau considered a number of factors to assess whether this hypothetical situation would make the mandatory minimum sentence unconstitutional: the gravity of the offence; specific circumstances of the case; whether the offender is Indigenous and whether he has a criminal record; and the actual effect of the punishment on the perpetrator.

"The fact remains that rehabilitation and restraint should play a larger role for the hypothetical offender than it would for a more mature offender or a seasoned criminal," wrote Charbonneau.

"For the hypothetical offenders, the mandatory minimum sentence, effectively, obliterates these principles."

Charbonneau ruled the minimum sentence for recklessly firing a gun is unconstitutional and will not apply in the sentencing of Kakfwi and the man from Inuvik.

Kakfwi is scheduled to be sentenced on April 30 in Fort Good Hope. The Inuvik man is scheduled to be sentenced on May 14 in Inuvik.

With files from Richard Gleeson