Two cases where Nunavut offenders were sentenced to less than the mandatory minimum jail time, so they could serve time in their home territory are back before the courts.
This week in Iqaluit, the Crown claimed before the Nunavut Court of Appeal that a judge made a mistake by shortening an offender's jail time so he could stay in the territory instead of being sent to a penitentiary thousands of kilometres from home in southern Canada.
The Crown, represented by Janna Hyman, is appealing the decisions of two cases where a judge found the four-year mandatory minimum sentence for a gun crime unconstitutional.
Because there were numerous similarities between the cases, the appeals were heard together on Tuesday afternoon by a panel of three judges: Karan Shaner, Frederica Schutz and Sheila Greckol.
Hyman concentrated her arguments on the case of Simeonie Itturiligaq. He was 24 years old when he fired a single shot at the roof of a house. His girlfriend was in the house and he wanted her to come out and spend time with their young daughter.
Justice Paul Bychok sentenced him to two years less a day on Oct. 9, 2018, despite the Criminal Code requirement that, if found guilty, the shortest prison sentence allowed is four years.
Itturiligaq's lawyer had challenged the minimum of four years, under section 12 of the Canadian Charter of Rights and Freedoms, which guarantees freedom from cruel and unusual punishment — and Bychok agreed.
Bychok said he was concerned about the distance and the lack of access Itturiligaq would have to his family, including his daughter, should he be sent to a federal penitentiary.
Anxiety leaving Nunavut
Provinces and territories are responsible for offenders sentenced to less than two years in jail. Longer sentences are served in federal facilities — of which there are none in Nunavut.
Most Nunavut offenders sentenced to longer than two years serve their time in Ontario.
Scott Cowan, the lawyer representing Cedric Ookowt — the other case being appealed — summed up the anxiety offenders face when staring down longer sentences when many have never even left Nunavut before.
"Offenders ask me in the South 'am I going to jail?' In the North ... lawyers will tell you [they're asked] 'am I being sent out [of the territory]?'" Cowan said.
Ookowt was 19 years old when he fired a shot into the window of a house of a man who bullied him. Justice Earl D. Johnson sentenced him on Sept. 22, 2017 to two years less a day.
For Ookowt's family in Baker Lake, it could be six flights for them to visit a prison in southern Ontario. Ookowt served his sentence at the Rankin Inlet Healing Facility — which is a single flight.
Cowan said the cost and distance made a penitentiary visit a virtual impossibility.
Not the same as residential school: Crown
In her appeal, Hyman, the prosecutor, argued Bychok went too far in equating Itturiligaq going to a federal prison to historical forced relocations of Inuit to residential schools and to tuberculosis sanatoriums in southern Canada.
The panel asked Hyman whether geography alone constitutes cultural separation, as Inuit culture is so closely tied to the land.
It peppered Hyman with questions, trying to determine how the Crown believes Bychok erred.
Trial judges are required to weigh a number of factors when deciding on an appropriate sentence — for example Bychok could consider the distance Itturiligaq would be from his daughter, along with the general sentencing guidelines of denunciation, deterrence and rehabilitation.
Judges are also required to consider Indigenous offenders' backgrounds, along with the colonial history they carry with them.
Itturiligaq was a young Inuk offender and young offenders are often sentenced with more weight given to the idea of rehabilitation, Justice Schutz said.
The defence, represented by Majia Martin, argued that mandatory minimums make it very difficult for judges to craft the individualized sentences required of them for Indigenous offenders.
In his decision, Judge Bychok cited Inuit social values, known as Inuit Qaujimajatuqangit principles, as factors he considered during sentencing — among them that the victim had forgiven Itturiligaq.
But Hyman also argued that Bychok should have called expert witnesses, like Inuk elders, to testify on what those principles are, and given lawyers time to present on how to incorporate them into sentencing.
Martin, as the respondent, argued Inuit Qaujimajatuqangit principles are codified in Nunavut's laws, like the Education Act, with definitions, which Bychok would be familiar with and the principles are widely known in Nunavut.
Bychok has spent a few years shy of two decades in Nunavut, first as a prosecutor and since 2015 as a judge.
Case attracts attention
These appeals attracted the attention of Jonathan Rudin of Aboriginal Legal Services, which offers legal programming to Indigenous people in Toronto.
Rudin appeared as an intervenor in the case, arguing that Justice Bychok used Inuit Qaujimajatuqangit principles correctly during sentencing.
Bychok didn't just use the principles to justify giving a shorter sentence, Rudin said, he also used them to show the gravity of the offence. Bychok said in his decision that "this offender violated important Inuit societal values."
The case also packed the courtroom's public gallery. Nearly 40 people — including all of Nunavut Arctic College's law program — came to listen.
At the afternoon break, half the audience shifted to an adjacent courtroom to watch by video conference because the number of people was considered a fire hazard.
Both men pleaded guilty to "intentionally discharging a firearm into or at a place, knowing that or being reckless as to whether another person is present in the place."
There have been seven cases where a Canadian judge has sentenced against the four year mandatory minimum for gun crime, including a more recent one in Nunavut.
The appeal judges reserved their judgment, which will be published at a later date.