A Nunavut decision shows mandatory sentences for gun crimes inappropriately constrain judges when dealing with Aboriginal offenders, Toronto criminal and civil litigator Laurelly Dale tells AdvocateDaily.com.
The fact pattern of the case rings a number of bells for Dale, who frequently acts for youthful Aboriginals charged with gun-related offences involving weapons normally used for hunting.
The judge in the case declared the four-year mandatory minimum for intentionally discharging a firearm under s. 244.2 (1)(a) of the Criminal Code unconstitutional.
Calling the mandatory minimum regime “a perpetuation in Nunavut of last century’s systemic colonialism and discrimination,” Judge Paul Bychok found the baseline penalty in the case undermined the ability of the courts to apply Gladue principles and violated s. 12 of the Charter, which protects Canadians from cruel and unusual punishment.
Instead, he handed the defendant, a 24-year-old Inuk born and raised in Nunavut, a sentence of two years less a day in jail.
Dale, principal of Dale Legal Firm, says the decision was well-written, and she will be watching to see if it is appealed to a higher court.
“This case shows how mandatory minimums essentially strip away judicial discretion and prevents them from looking at factors such as the Gladue principles and proportionality,” she says.
Originally published in the Advocate Daily December 10th, 2018: https://www.advocatedaily.com/profile/laurelly-dale-gun-crime-mandatory-minimums-interfere-with-gladue-principles-dale.html