R. v. Alariaq, 2017 NUCJ 13

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Alariaq, 2017 NUCJ 13 Date: 20170725 Docket: 03-14-208 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Jamesie Alariaq ________________________________________________________________________ Before: The Honourable Mr. Justice Todd Ducharme Counsel (Crown): Benjamin Flight Counsel (Accused): James Morton Location Heard: Cape Dorset, Nunavut Date Heard: July 25, 2017 Matters: Criminal Code of Canada , RSC 1985 s. 334 s. 434 REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication) I. INTRODUCTION [ 1 ] On November 4, 2016, a jury convicted Mr. Alariaq of one count of arson and one count of theft over $5,000. In the early morning hours of August 30, 2014, Mr. Alariaq drove his CAT loader and used it to steal a sea can full of equipment belonging to Polar Supplies Ltd., a rival business in Cape Dorset. He drove it to an area near the New Lagoon, where he opened the sea can with a grinder. Mr. Alariaq then set fire to the sea can and destroyed the contents. Mr. Alariaq and the Crown agreed that the damages amounted to $77,140.05. II.

POSITION OF THE PARTIES [ 2 ] Mr. Flight, on behalf of the Crown, submits that the appropriate sentence in this case is a term of imprisonment of two years to be followed by probation for two years.

In addition to the statutory terms of probation, the Crown asks for the following terms: • Report to your probation officer within two days after your release from custody; • To have no contact or communication, direct or indirect with Fred Schell, Cheryl Constantineau, Mike Constantineau or Colin Gibson; • To perform 100 hours of community service within the first 18 months or probation; • To take counselling as directed by your probation officer. [ 3 ] The Crown also seeks the following ancillary orders: ▪ A DNA order under s. 487.051(3) for both convictions; ▪ A

section 109 mandatory firearms prohibition for life for prohibited and restricted firearms and for 10 years for non-restricted firearms; ▪ An order under s. 743.21(1) of the Criminal Code prohibiting Mr. Alariaq from communicating, directly or indirectly, with Fred Schell, Cheryl Constantineau, Mike Constantineau or Colin Gibson during the custodial period of the sentence. [ 4 ] Finally, pursuant to s. 738(

a) the Crown is seeking a restitution order in the amount of $77,140.05 payable to the trustee of the bankrupt estate of Polar Supplies Ltd.

[ 5 ] Mr. Morton, representing Mr. Alariaq, makes the submission that the appropriate sentence in this case is restitution in full and a suspended sentence with 240 hours of community service. Mr. Morton candidly admits that he would have asked for a conditional sentence if one was available, but as it is not, he is urging the court to craft a suspended sentence with many of the same features. As for ancillary orders, Mr. Morton is seeking an exemption under s. 113 of the Criminal Code to the firearms ban to permit Mr. Alariaq to engage in sustenance hunting. Mr.

Morton submits that there is no need for a DNA order but leaves that decision in the court’s hands. III. PRINCIPLES OF SENTENCING [ 6 ] The purpose and objectives of sentencing are set out in s. 718 of the Criminal Code . Generally speaking, the fundamental purpose of sentencing is to foster respect for the law and to maintain a just, peaceful and safe society.

Section 718.1 of the Criminal Code requires that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 7 ] Courts attempt to achieve these purposes by imposing just penalties that have one or more of the following objectives: I. Denouncing unlawful conduct; II. Deterring this offender and others from committing offences; III. Imprisoning offenders, where necessary, to separate them from the law-abiding members of society; IV. Assisting in rehabilitating offenders and, in appropriate circumstances, encouraging their treatment; V.

Providing reparation for harm done to victims of the community; VI. Promoting in offenders a sense of responsibility for, and acknowledgement of, the harm they have done to victims and to the community. [ 8 ]

Section 718.2 of the Criminal Code also requires that courts take into account other principles, including the following: 718.2(a)(i): that a sentence may be increased or decreased depending upon the presence of any relevant aggravating or mitigating circumstances relating to the offence or the offender; 718.2(b): that a sentence should be similar to those imposed on similar offenders for similar offences committed in similar circumstances; 718.2(c): that, where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; 718.2(d): that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances; and 718.2(e): that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 9 ] Sentencing is an individualized process, in which the trial judge has considerable discretion in fashioning a fit sentence.

The rationale behind this approach stems from the principle of proportionality, the fundamental principle of sentencing, which provides that a sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender. Proportionality requires an examination of the specific circumstances of both the offender and the offence, so that the punishment fits the crime. As a by-product of such an individualized approach, there will be an inevitable variation in sentences imposed for particular crimes.

IV. CIRCUMSTANCES OF THE OFFENDER [ 10 ] I turn first to the circumstances of Mr. Alariaq. He does have a criminal record. In 2005, he received a conditional discharge in relation to an assault on his domestic partner and served six months probation. In 2010, he was convicted of break and enter and was sentenced to nine months of probation. [ 11 ] Mr. Alariaq was born in Cape Dorset and moved frequently with his family between Rankin Inlet, Nova Scotia, Iqaluit, and Cape Dorset. He thinks of Cape Dorset as home and this is where his partner and children, his parents and his sister reside.

He operates a business in Cape Dorset called M.J. Taxi. [ 12 ] Mr. Alariaq has been with his common law partner, Maava Toonoo, for 15 years. They have three children who are 13, 8 and 4 years of age. The accused has a major role in looking after his children. Unfortunately, both Mr. Alariaq and Ms. Toonoo have problems with alcohol addiction. [ 13 ] Mr. Alariaq was using crack cocaine and alcohol and in 2008 he was spending approximately $10,000 per month on his addictions.

Eventually he was admitted to the Homewood Treatment Centre and was able to overcome his addictions, although he has resumed using alcohol in part due to the stress of dealing with the present charges. [ 14 ] Mr. Alariaq has maintained a steady pattern of employment throughout his youth and adult life; he obtained his first job after graduating from high school and remained there from 1998 to 2001. In 2001, he began working for the Government of Nunavut as a Community and Government Services Trainee, and was later appointed as a Community Inspector, a position he held until 2011.

In 2010, he decided to operate his own business where he is the President and General Manager. In 2015, Mr. Alariaq started working for the airline Canadian North as a ticket agent. [ 15 ] Mr. Alariaq is also a dedicated member of his community. In particular, he volunteers with the Marine Search and Rescue, where he works alongside and directly assists the RCMP. Along with this, Mr. Alariaq is a local businessman who employs several members of his community. [ 16 ] Mr. Alariaq has good memories of his childhood. In particular, every spring and summer he would go out on to the land with his parents and siblings.

He was taught traditional ways of hunting, gathering and surviving off the land. He continues to go out on the land and he regularly brings back country food which he shares with elders, family, friends and other community members. He has expressed an interest in passing down Inuit knowledge and traditions to his own children as he feels it's important for his children to know who they are and where they come from. [ 17 ] There are other aspects of Mr. Alariaq’s upbringing that are quite unfortunate. Mr. Alariaq is a survivor of childhood sexual abuse.

Between the ages of 7 and 12, he experienced frequent sexual abuse by his uncle Peter Alariaq. Peter Alariaq in turn was apparently a victim of sexual abuse by Ed Horne, a teacher at Peter Pitseolak School. [ 18 ] When Mr. Alariaq’s father and an aunt were very young they had their parents taken away to a Canadian medical ship because they had tuberculosis and required treatment. They were left in the care of relatives where they suffered frequent sexual, physical and emotional abuse. [ 19 ] Mr. Alariaq’s father, two of his uncles and an aunt were all residential school survivors.

They were taken from home and experienced physical abuse, forced assimilation and separation from family, culture, values and traditions that were at the core of their identities. [ 20 ] Mr. Alariaq’s life has also been touched by suicide. His uncle Nuvulia committed suicide in 1999. His father’s cousin, Attachie Peter, died by a self-inflicted gunshot. Three of Maava Toonoo’s cousins hanged themselves in 1998, 1999 and 2005, respectively. Another of her cousins committed suicide in 1997. [ 21 ] Mr.

Alariaq’s father was an alcoholic, and he vividly recalls witnessing his father lose self-control, forget events, suffer blackouts and be violent with his mother. While Mr. Alariaq did not experience any physical or sexual abuse from his father, he experienced considerable emotional harm from witnessing domestic violence in the home. He was afraid of his father and concerned for the safety of his mother and siblings. This persisted until Mr. Alariaq was approximately 10 years of age when his mother gave his father an

ultimatum to stop drinking or be cut off from his family. [22] Mr. Morton has filed a number of letters in support of Mr. Alariaq on this sentencing hearing. The letters, written by familymembers, friends, work associates and community members portray Mr. Alariaq as a successful businessman, a skilled hunter, a parentpassing on traditional ways of the Inuit to his children and a contributing member of the community. V. IMPACT ON MR. SCHELL [23] I turn now to the impact of these crimes on Mr. Schell. The financial impact of this crime was significant. In addition to the lossof $77,140.05, Mr.

Schell also spent an additional $5,280 in wages for his office manager and her assistant to compile the report for theinsurance company. Mr. Alariaq has agreed to make restitution for both of these amounts in full. [24] Mr. Schell has found the whole criminal process to be very stressful and he and his wife have had fears for their security withrespect to Mr. Alariaq. Mr. Schell has since been diagnosed with a heart-related problem related, at least in part, to stress. VI. LEGAL PARAMETERS [25] Arson is a serious offence. The maximum possible penalty is 14 years.

The dangers of arson were nicely summarized by JusticeGorman in R. v. Fewer [2004] N.J. No. 433 (N.L. P.C.) at para 36: Arson obviously causes property damage, however, the seriousness of this offence extends well beyond any property damage that mightoccur. Fire is inherently dangerous and difficult to control. Setting fire to a building can have unintended and fatal consequences. Thereare various individuals in our society that have the unenviable task of being required to respond to fires. They risk their lives every timethey do so. Arsonists recklessly place the lives and safety of such individuals at risk.

Therefore, the sentences imposed for this offencemust reflect this factor. [26] While this arson does not involve setting fire to a building and the sea can was burned in a rather remote part of the road, I think theconcerns outlined by Justice Gorman apply equally here. [27] I am required by the Criminal Code to consider sentences imposed on similar offenders for similar offences committed in similarcircumstances. To that end, counsel have referred me to a number of cases. [28] A review of all of these cases, those relied on by Mr. Flight and those relied on by Mr.

Morton, demonstrate that sentencing is aprofoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. I haveconsidered all of these cases carefully although I will not discuss them individually. [29] Certain general principles can be gleaned from the cases, however. Most importantly, denunciation and deterrence must be theparamount objectives of the sentence I impose. Secondly, any sentence for Mr. Alariaq, an Inuk, must take into account his indigenousstatus in a manner consistent with the decision of the Supreme Court of Canada in R. v.

Gladue, (SCC), [1999] 1 SCR688. VII. AGGRAVATING AND MITIGATING FACTORS [30] I turn now to consider the aggravating and mitigating factors of this case. First, the aggravating factors: I. The value of the property that Mr. Alariaq stole and burned, $77,140.05. Mr. Alariaq causedvery significant damage to the property of a competing business. II. Mr. Alariaq’s planning and deliberation. The evidence at trial was that Mr. Alariaq observedthe sea-can with a keen interest a few days prior to the theft and arson. He knew that the sea can was associated with Polar Supplies Ltd.

I reject Mr. Morton’s submission that Mr. Alariaq’s observations were merely acts of innocent curiosity. The planning and deliberationare also evidenced by the fact that Mr. Alariaq drove the CAT with his lights off to avoid detection and used a grinder to cut open the seacan. III. Mr. Alariaq’s intoxication while operating heavy equipment. Mr. Alariaq admitted through hiscounsel at the sentencing hearing that he was intoxicated at the time he operated heavy equipment on a public road.

Not only is thisanother criminal offence, but there is an inherent danger in driving any vehicle while impaired, and it is especially dangerous to haveoperated heavy equipment under the influence of alcohol and drugs. IV. The evidence from the surveillance footage is that Mr. Alariaq drove the CAT loader at night, inthe dark, with the headlights off. Presumably he did this to avoid detection. However, this made it more difficult for Mr. Alariaq to seeother road users. The surveillance footage did disclose that there were others – including motor vehicles and cyclists – on the road aroundthe time of the theft. V.

Mr. Alariaq started a fire in a small, remote town that has fewer resources to respond to fires. [31] The following mitigating factors are present in this case: I. Mr. Alariaq now accepts the verdict of the jury and is prepared to make restitution in full. Heapologized in court yesterday and again this morning. In particular, he has apologized to his family and made it clear that he has gonedown a bad road that he wants them to avoid. I accept that he now regrets his involvement in these crimes and his remorse, while late incoming, is genuine. I think this can play an important role in his rehabilitation. II. Mr.

Alariaq is a successful businessman and has been steadily employed for most of his adultlife. III. Mr. Alariaq is a skilled hunter and willingly shares what he catches with elders, his family andmembers of the community. He is also proud of his Inuit heritage and culture and is actively passing that on to his children. IV. Mr. Alariaq has contributed to the community of Cape Dorset in a variety of other ways. He hasbeen elected a Hamlet Council Member and Deputy Mayor. He has assisted the RCMP and the Coast Guard with search and rescueactivities. VIII.

SECTION 718.2(

e) OF THE CRIMINAL CODE AND THE PRINCIPLES IN R. v. GLADUE [32] In R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 at para. 75, the Supreme Court held that: The role of the judge who sentences an aboriginal offender is, as for every offender, to determine a fit sentence taking into account allthe circumstances of the offence, the offender, the victims, and the community. [33] But Gladue also made clear that s. 718.2(

e) of the Criminal Code, which makes imprisonment a sanction of last resort for alloffenders, has a remedial purpose directed at the disproportionate incarceration of Aboriginal offenders and requires that the sentencingdetermination be informed by considerations that can favor a non​custodial sentence or a shorter term of imprisonment including: (1) theunique background and systemic factors which may have played a

part in bringing the particular Aboriginal offender before the court;and (2) restorative justice procedures and sanctions that may be appropriate for the offender because of his or her particular Aboriginalheritage or connection. [34] While the Courts have an obligation to review and consider the extenuating circumstances of an Aboriginal offender, in R. v.lpeelee, 2012 SCC 13, [2012] l S.C.R. 433, the court stated that these matters on their own do not automatically justify or inevitably lead

to a reduced sentence. In the end, it is up to the sentencing judge to consider all of the relevant aspects in order to appropriately fix a sentence. [ 35 ] Where the unique background and systemic factors of the aboriginal offender are shown to have played: [A] significant role, it may be that imprisonment will utterly fail to vindicate the objectives of deterrence or denunciation. In other cases, where the impact is not as dramatic, those systemic and background factors must nevertheless be taken into account in shaping the appropriate penal response. R. v.

Collins , 2011 ONCA 182 (O.C.A.) at para 33 . [ 36 ] It seems to me that the systemic and background factors affecting Mr. Alariaq must have played a

part in bringing him before the courts. He has been the victim of childhood sexual assault and grew up in a home where domestic violence was far too common. His father, uncle and aunts are survivors of residential schools. He has been addicted to crack cocaine and still struggles with alcohol abuse. His partner and the mother of his children is addicted to alcohol and they have both been exposed to far too many deaths by suicide of family members. [ 37 ] Even if the systemic and background factors did not play a

part in bringing Mr. Alariaq before the courts, the Gladue principles still require recognition of the impact of Canada’s treatment of its Aboriginal population in shaping the appropriate sentence. The court is required to consider how this particular offender has been affected by those systemic factors.

As the court said in Gladue at para. 81 : “Sentencing must proceed with sensitivity to and understanding of the difficulties aboriginal people have faced with both the criminal justice system and society at large.” Not only are aboriginal offenders seriously over-represented in Canada’s prison population but, as the court in Gladue added at para. 68 : [A]boriginal offenders are, as a result of these unique systemic and background factors, more adversely affected by incarceration and less likely to be "rehabilitated" thereby, because the internment milieu is often culturally inappropriate and regrettably discrimination towards them is so often rampant in penal institutions. [ 38 ] I have concluded that a suspended sentence would not reflect the seriousness of the offence, the moral blameworthiness of Mr.

Alariaq, the need for general deterrence and denunciation and the sentences imposed in similar cases. However, the Gladue principles are still relevant as they require consideration of the least intrusive punishment consistent with the appropriate objectives.

As the court said in Gladue at para. 93 : “If there is no alternative to incarceration the length of the term must be carefully considered.” [ 39 ] In all of the circumstances of this case, including the significant aggravating factors, the principles of sentencing are appropriately addressed by a sentence of 18 months imprisonment to be followed by two years of probation. [ 40 ] In addition to the statutory terms, I will order the following additional terms in the probation order: I. Report to your probation officer within two days after your release from custody; II.

Have no contact or communication, direct or indirect, with Fred Schell, Cheryl Constantineau, Mike Constantineau or Colin Gibson; III. Perform 100 hours of community service at a rate of no less than 8 hours per month; IV. Take counselling as directed by your probation officer. [ 41 ] I shall make an order under s. 743.21(1) of the Criminal Code prohibiting Mr. Alariaq from communicating, directly or indirectly, with Fred Schell, Cheryl Constantineau, Mike Constantineau or Colin Gibson during the custodial period of the sentence. [ 42 ] I shall make an order under

section 487.051(1) of the Criminal Code authorizing the taking of the number of samples of bodily substances from Mr. Alariaq that is reasonably required for the purpose of forensic DNA analysis.

[ 43 ] Finally, pursuant to s. 738(

a) of the Criminal Code I will make a restitution order in the amount of $77,140.05 payable to the trustee of the bankrupt estate of Polar Supplies Ltd. Also, pursuant to s. 738 (

d) of the Criminal Code , I will make a restitution order in the amount of $5,280 payable to Fred Schell. [ 44 ] As these offences did not involve violence against a person, I will not make an order under

section 109. Dated at the Hamlet of Cape Dorset this 25th day of July, 2017