Not all gun crimes that trigger mandatory minimum sentences should result in hard time for offenders, a NWT judge ruled Feb. 14.
The decision, made by NWT Supreme Court Justice Louise Charbonneau, comes after two NWT men, Tony Howard Kakfwi and Corey Cardinal, launched constitutional challenges against a portion of Canada's Criminal Code that requires mandatory minimum sentences for gun crimes.
Both were charged with discharging a firearm in a reckless manner. The charge carries as mandatory minimum of four years.
Kakfwi fired a gun outside a Fort Good Hope band meeting before firing more warning shots during a standoff with police.
In 2016, Cardinal, intoxicated and suicidal while in a home in Inuvik, placed the barrel of a shotgun to his chin and fired but missed after a friend pushed the gun away. Angry, Cardinal fired two more shots – neither hit or injured anyone.
Cardinal faced a five-year mandatory minimum sentence due to the use of a prohibited, sawed-off gun during the incident.
Both pleaded guilty and both filed applications challenging the mandatory minimum sentences they faced.
Due to “considerable overlap” between the two cases, Judge Charbonneau assessed their applications together.
The challenge invoked Section 12 of the Canadian Charter of Rights and Freedoms, which guarantees “everyone has the right not to be subjected to cruel and unusual treatment or punishment.” Charbonneau said mandatory minimum sentences themselves don't violate the Charter but if a sentence is “grossly disproportionate” to the crime committed, then the Charter is “offended.”
The threshold to prove this, Charbonneau wrote, is “very high,” as it must be demonstrated that a sentence is “more than merely excessive.”
“It must be so excessive as to outrage standards of decency,” she wrote.
If a sentence is determined not to be “grossly disproportionate,” it could still violate the Charter of Rights if it is “reasonably foreseeable that it will result in the imposition of a grossly disproportionate sentence on other offenders.”
Mandatory sentences for the two men aren't grossly unwarranted but it is reasonably foreseeable that these sentences will result in a grossly disproportionate penalties for other offenders, wrote Charbonneau.
In coming to her decision, Charbonneau considered similar historical cases – and a hypothetical scenario. Offenders who wish to challenge a mandatory sentence must do so on the basis of a hypothetical situation, not what happened to the offender themselves.
Charbonneau called the hypothetical situation put forth by Cardinal, of a young, intoxicated Indigenous man suffering from inter-generational trauma who attempts to take his life, “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,” she wrote.
Cardinal and Kakfwi, she concluded, shouldn't be subject to the mandatory minimum sentences as they are unconstitutional.
Garth Wallbridge, a longtime NWT lawyer who is not involved in the case, told News/North Charbonneau was “bang on” in her decision.
“The reality is that the Harper government failed Canadians miserably by going to dog-whistle politics and putting in mandatory minimums at a time when it had already been recognized that mandatory minimum sentences wreaked havoc on many, many people and destroyed lives without any societal benefit,” said Wallbridge.
Given the unique circumstances of different crimes, Wallbridge added, “sometimes, and perhaps many times, a mandatory minimum would be cruel and unusual. So let's get rid of that.”
In 2008, then-prime minister Stephen Harper introduced mandatory minimum sentencing for gun crimes deemed serious.