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

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 himselfinsidean 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.

• Man charged after shots fired outside Fort Good Hope community meeting
• Yellowknife lawyers to challenge mandatory firearms minimums

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 LouiseCharbonneau'sFeb. 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.

• Yellowknife lawyers to challenge mandatory firearms minimums

The Inuvik man'slawyer 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 manis scheduled to be sentenced on May 14 in Inuvik.