R. v. E.A., 2017 NUCJ 16

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. E.A., 2017 NUCJ 16 Date: 20170905 Docket: 03-15-230 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: E.A. ________________________________________________________________________ Before: The Honourable Mr. Justice Neil Sharkey Counsel (Crown): Sara Gardezi Counsel (Accused): Jean Tremblay Location Heard: Cape Dorset, Nunavut Date Heard: August 24, 2017 Matters: Sentencing related to Criminal Code, RSC 1985 , c C-46, s 434 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

Table of Contents REASONS FOR JUDGMENT . 1 I. PROCEDURAL BACKGROUND . 3 II. THE FACTS OF THE OFFENCE . 4 III. MS. E.A.’S PERSONAL CIRCUMSTANCES . 7 IV. THE POSITION OF THE PARTIES (CROWN AND DEFENCE) 10 A. Crown . 10 B. Defence . 11 V. SOME CASE AUTHORITIES INVOLVING ARSON . 13 VI. ANALYSIS . 16 VII. CONCLUSION . 22

I. PROCEDURAL BACKGROUND [ 1 ] E.A. is charged with arson. She pleaded guilty and is before me today to be sentenced. She is a single mother with two children– two years old, and a seven months old respectively. She is also, I am told, now some two months pregnant. [ 2 ] Ms. E.A. was originally charged with the most serious of the several arson-related offences under

section 433 of the Criminal Code , RSC, 1985, c C-46, which carries a maximum penalty of life imprisonment. She eventually pleaded guilty, however, to another (or lesser) arson-related offence under

section 434 of the Criminal Code . This

section makes it an offence for a person to intentionally or recklessly cause damage by fire to property which is not wholly owned by the offender and the maximum penalty under this

section (

section 434 ) is imprisonment for 14 years. [ 3 ] The incident which gave rise to the offence occurred some time ago, on 7 December, 2015, in Cape Dorset. Ms. E.A. entered her guilty plea in June 2017 and her sentencing hearing was adjourned. I presided at the sentencing hearing last week, on 24 August, 2017 in Cape Dorset. After hearing the arguments advanced by Crown and Defence Counsel, I adjourned to consider the proper sentence to be imposed and I remanded Ms. E.A. into custody until today, 29 August, 2017. [ 4 ] As of today, Ms. E.A. has spent seven days in custody on remand.

At an enhanced credit ration of 1.5 to one this would be the equivalent of 10 days served in custody. [ 5 ] I would note that while Ms. E.A. did not enter her guilty plea until over a year after the offence, it is not in dispute that her Counsel had informed the Crown from a very early stage in the proceedings of Ms. E.A.’s intention to resolve the case by way of a guilty plea. [ 6 ] In turn, the Crown agreed to allow Ms. E.A. time to make rehabilitative efforts which might impact her eventual sentence, to give birth to her youngest daughter and to attend in Ottawa for the child’s health issues.

Accordingly, the delay in entering the plea is not material—it is clear that Ms. E.A. has accepted responsibility for what she has done at an early stage in the proceedings. II. THE FACTS OF THE OFFENCE [ 7 ] On 7 December, 2015, the accused, Ms. E.A., set fire to and destroyed her own public housing unit in Cape Dorset. She was the only person in the residence at the time. The apartment itself, unit 3015, was the end unit in a four-plex.

Luckily, the other three units in the four-plex escaped any damage, and the occupants were only displaced temporarily as a precautionary measure. [ 8 ] Unit 3015 was actually leased by the accused’s sister A.A.. It was, however, also home for the accused, two more of the accused’s siblings, as well as several children. [ 9 ] By coincidence, this fire—which rendered unit 3015 uninhabitable—occurred only a few months after a more notorious fire in Cape Dorset.

In September of 2015, several youths had broken into the Sam Pudlat school and, once inside, engaged in various acts of criminal mischief as a result of which the building itself caught fire and burned to the ground. [ 10 ] Ms. E.A. was drunk, depressed, and in a state of despair on 7 December, 2015. Several times she expressed suicidal thoughts. [ 11 ] She had quite a bit to drink that day. Her friend L. had just received a liquor order and invited Ms. E.A. to come over to drink with her.

The two of them started drinking around 4 or 5 p.m. and kept drinking until around 10 p.m., by which time they were both highly intoxicated.

[ 12 ] At around 10 p.m. they started to walk back to Ms. E.A.’s unit 3015. It was around this time as well that Ms. E.A. started expressing suicidal thoughts to L.. As they walked along the street, they tried to flag down a passing taxi, which refused to stop. Ms. E.A. told L. that she was tired of living and actually made an attempt to jump in front of the taxi. Ms. E.A. made several more of these suicidal comments to L. throughout the course of the evening. Two or three times, Ms. E.A. also asked L. if she wanted to watch Ms. E.A. burn down the house. [ 13 ] Ms.

E.A. and L. eventually made their way to unit 3015. Nobody was home when they got there and they stayed only briefly before leaving the house. Once outside, Ms. E.A. apparently got into a fight with somebody on the street; then she and L. continued to just wander around, drunk. A sober passerby named Jeffrey decided to give them a ride on his Honda four-wheeler. He drove L. home first and then took Ms. E.A. home to unit 3015. [ 14 ] Jeffrey came into unit 3015 with Ms. E.A.. They were the only people present in the house. This would be roughly sometime after 10 p.m. Ms.

E.A. was upset and made threats that she was going to burn the house down because she was sad that she did not have a family like he, Jeffrey, had a family. [ 15 ] She told Jeffrey that she was going to burn the house down with gas or camp fuel. Jeffrey stayed around for a while–he helped clean up the apartment and talked a bit more with Ms. E.A.. He did not, however, see any gas or camp fuel in the house. Eventually, Jeffrey left Ms. E.A. alone in the residence. [ 16 ] Jeffrey made his was to another house where he found Ms. E.A.’s brother. He told the brother that Ms. E.A. was drunk and at unit 3015.

Jeffrey apparently, however, never told the brother about any of the threats that Ms. E.A. had made about burning down the house. [ 17 ] Shortly before 11 p.m., the RCMP got a call to respond to a fire at unit 3015. The first thing they saw was smoke billowing from an upstairs bedroom window and a man on the porch holding onto Ms. E.A. in an attempt to prevent her from entering the house. [ 18 ] The Cape Dorset Volunteer Fire Department was on the scene as well.

A large crowd was gathering and the police had trouble getting people to stand back so that the fire department could get into the unit to suppress the fire. [ 19 ] Apparently, even before the fire department arrived, some of Ms. E.A.’s neighbours (who had taken training in fighting fires) entered the unit with extinguishers in an attempt stop the fire from spreading to the other units. [ 20 ] Meanwhile, out on the street Ms. E.A. was creating quite a bit of havoc. She was angry and yelling that the police needed to arrest whoever started the fire.

She was also, of course, still quite drunk and the police found it necessary to actually arrest her for causing a disturbance. She was placed in the police truck and transported to the detachment where she spent the night in cells. [ 21 ] Eventually, the fire fighters put out the fire before it could do any damage to the adjoining units.

The residents of those units were, however, forced to leave their homes and stand out in the -25 degrees Celsius cold while they awaited clearance to go back inside. [ 22 ] After the fire had been put out, the Fire Chief identified two sources of origin for the fire: one was a mattress in an upstairs bedroom, and another was the drapes or curtains in the main floor living room. Ms. E.A., despite her state of drunkenness and lack of any specific memory, accepts that the fire was started at these two locations. [ 23 ] There was, however, no accelerant used to start the fire.

The fact no accelerant was used–despite Ms. E.A.’s threats to, for example, use camp fuel–is significant because the use of an accelerant greatly increases both the intensity of the fire in its initial stages and the speed at which the fire can spread. And again, the volunteer fire fighters were able to suppress the blaze before it had spread sufficiently to endanger the neighbouring units. [ 24 ] The unit 3015 itself, as I noted earlier, was damaged beyond repair and will never be habitable. I had opportunity to view the photographs of the damage to the unit.

Suffice it to say that these pictures are worth a million words. The damage is most extensive upstairs. The bedroom where the fire started is hardly recognizable. I am told as well that the insured value of the unit was approximately $1 million. [ 25 ] It was not only Ms. E.A. and her children that were rendered homeless as a result of the fire. Ms. E.A.’s siblings (as well as their children) were left without a home. In particular, I am told that one of Ms. E.A.’s sisters had no option but to eventually move her family into a tent. [ 26 ] Ms.

E.A. remained in custody the next day, 8 December, 2015, as the police continued their investigation. The police had Ms. E.A. assessed, however, by the local mental health nurse before attempting to question her about the fire. She was also given an opportunity to

speak with legal counsel, which she did. [ 27 ] The police then questioned Ms. E.A.. She admitted she started the fire, but she was also upset and expressed surprise and disbelief that she had done so, insisting that she was not the kind of person who would do such a thing. [ 28 ] Ms. E.A. was also released on bail on 8 December, 2015. The conditions of her bail were essentially non-restrictive in nature, requiring her only to behave herself and abstain from alcohol. Ms. E.A. remained faithful to the terms of her bail throughout the long court process which is just now ending. III. MS.

E.A.’S PERSONAL CIRCUMSTANCES [ 29 ] Defence Counsel has provided me with extensive written submissions, which I have considered. This material included a comprehensive and detailed account of Ms. E.A.’s personal and family history. [ 30 ] I would note that in these written materials–and in particular respecting Ms. E.A.’s background–she is referred to not as “E.A.”, but rather as “A.1”. I am told by Counsel that E.A. is actually Ms. E.A.’s middle name and that she prefers to be called (and goes by) her Christian first name, A.1. [ 31 ] Ms. E.A. is 26 years old and has no prior criminal record.

She is a single mother with two young daughters, M. (two years old), and A.2 (seven months old). Ms. E.A. is not working in the wage economy. She is a full-time caregiver for her two daughters and relies financially on income support (social assistance) to support herself and her girls. [ 32 ] Ms. E.A. gave birth to her first child, a boy, A.4, some five years ago, when she was 21 years old. A.4, however, passed away from meningitis when he was only five months old. He is buried in Cape Dorset and Ms. E.A. visits his grave regularly. [ 33 ] Ms. E.A.’s mother was a victim of domestic abuse and when Ms.

E.A. was a baby, the local nursing station in Cape Dorset had concerns that Ms. E.A. was not being properly nourished. By the time she was five years old, Social Services had concerns that Ms. E.A. was being left unsupervised and so she was placed in a foster care supervised setting. [ 34 ] Eventually, she was returned to her parents, but concerns of abuse by her father materialized soon afterwards as Ms. E.A. would show up for school with injuries, which she said her father had inflicted on her. [ 35 ] Ms. E.A.’s parents separated when she was in her late teens. For a short time afterwards, Ms.

E.A. and three of her sisters went to Quebec to live with their father. This placement did not; however, last long as Ms. E.A. was physically and sexually abused by her father. [ 36 ] Ms. E.A. returned to Cape Dorset and took up residence with her grandmother A.3 for a while, before moving back to Quebec to live with her uncle A.5. These were both good places for Ms. E.A. to live and she was well cared for. [ 37 ] Ms. E.A. only returned to Cape Dorset three or four years ago, but shortly afterwards both her grandmother A.3 and her uncle A.5 passed away. [ 38 ] Ms.

E.A. struggled in school and completed grade 10 only partially. I am told that she has made efforts over the years to obtain employment, but has been unsuccessful. [ 39 ] For the last two years or so, Ms. E.A. has been preoccupied with her two girls, both of whom have experienced serious medical issues. This has required Ms. E.A. to accompany them to Ottawa. [ 40 ] In 2015, while she was caring for her oldest daughter, M., in Ottawa, Ms. E.A. was the victim of a sexual assault.

She also struggled with alcohol while in Ottawa to the point where she returned to Cape Dorset and left her sister A.A. (who lived in Ottawa) to care for M.. [ 41 ] Eventually, however, A.A. returned to Cape Dorset and M. was taken into foster care by Ontario Children’s Aid in August of 2015. M. remained in foster care in Ottawa until she was brought to foster care in Cape Dorset in February of 2016.

[ 42 ] It is important to note that months between August 2015 and December 2015, when Ms. E.A. committed the offence before the Court, were particularly stressful for the accused. [ 43 ] M. was in foster care in Ottawa during this period and Ms. E.A. expressed frustration to Social Services about not being able to see her child. For example, on 24 November, just a couple of weeks before she committed the offence, Ms. E.A. told her case worker: “It’s so hard, I give up, I can’t handle it.” [ 44 ] Despite this, however, after she was released on bail in December of 2015, Ms.

E.A. worked on her own personal issues to the point where, with the assistance and support of Social Services, M. was returned to Ms. E.A.’s full-time care in August 2016. [ 45 ] Ms. E.A.’s second daughter, A.2, was born more than seven months ago, in January of 2017. Ms. E.A. had to accompany A.2 to Ottawa on two occasions in 2017 for medical treatments: once in February when a drunken relative assaulted the child, and again in July when the child contracted pneumonia while spending time with Ms. E.A.’s sister in a tent. [ 46 ] For a short time in 2017, Ms.

E.A. was in a relationship with A.2’s father and had moved into his house, but this ended and they separated when the father became abusive. [ 47 ] Ms. E.A. is now some two months pregnant. I am told that because of the high-risk nature of Ms. E.A.’s previous pregnancy, this pregnancy will have to be closely monitored. [ 48 ] I am told that Ms. E.A. has strong supports in Cape Dorset, in particular the support of M.’s previous foster parents. I have also been provided with a letter of support signed by several community members and friends of Ms. E.A.’s family.

This letter [EX D-1] is written by the local legal aid court worker. It outlines some of the struggles that Ms. E.A.’s family has endured over the years. [ 49 ] Ms. E.A. has maintained a good relationship with Social Services and does not hesitate to reach out to the local social worker to discuss personal issues or difficulties. Ms. E.A. has also, I am told, started counselling with an elder in Cape Dorset, and has expressed satisfaction with this arrangement. [ 50 ] Ms. E.A. does not currently have a fixed address in Cape Dorset. She is on the waiting list for public housing. This situation is, of course, Ms.

E.A.’s own doing. But in the meantime, before she acquires another unit, she remains homeless and lives (along with her children) with various relatives. IV. THE POSITION OF THE PARTIES (CROWN AND DEFENCE) A. Crown [ 51 ] The Crown urges the Court to impose a period of incarceration of between six to 12 months followed by a period of probation. [ 52 ] The Crown comes to this position after considering the accused’s guilty plea, the fact that she has no record, and her personal circumstances.

The Crown indicates, and I accept, that this position is an attenuated one after having considered these factors, since originally the Crown’s positon was that a jail sentence in the ‘high territorial range’ would be the appropriate sentence. The Crown suggests that the application of

section 718.2 (

e) of the Criminal Code in this case should only operate to reduce the amount of custody imposed, but not to allow a completely restorative sentence of probation through the imposition of a suspended sentence. [ 53 ] The Crown says that the principle of proportionality is satisfied only through a jail term. Ms. E.A. has committed a serious crime. While her ‘moral blameworthiness’ in committing this offence is not at the higher end of the scale, the Crown says this case is far from a spontaneous act of drunkenness.

Any suicidal motivation she had for starting the fire should be accounted for, once again, only to reduce the amount of time she ought to spend in jail. [ 54 ] The Crown argues that the penalty imposed must reflect the severity of the crime in terms of its potential for harm, as well as its

impact on the community. [ 55 ] The Crown notes that when a person either intentionally or recklessly sets fire to their own unit inside a four-plex, it is reasonably foreseeable that this might endanger the lives, the health, and certainly the property of the residents of the adjoining units.

The fact that, by chance, this potential is not realized is not a mitigating circumstance. [ 56 ] Further, notes the Crown, the perpetrator of arson puts the lives and health of fire fighters in jeopardy, particularly, as here, where the potential of this fire to spread was real but for the efforts of the volunteer fire fighters. [ 57 ] Finally, says the Crown, another aggravating factor is that the impact of this crime upon the community is quite severe. In Nunavut, housing is at a premium.

Destruction of a unit does not just deprive a person of a home; it deprives the community of a housing unit. [ 58 ] The Crown’s position is that the sentencing objectives of deterrence and denunciation would not be satisfied by a community- based sentence of probation. Such a sentence would give undue emphasis to the sentencing objective of rehabilitation, almost to the exclusion of other sentencing objectives. [ 59 ] The case authorities support the proposition that arson is not a victimless crime and that a jail sentence is the norm rather than the exception.

Accordingly, says the Crown, in terms of promoting parity in sentencing, a jail sentence is warranted in this case. [ 60 ] In particular, the Crown distinguishes the case of R v Eks (28 September 2012), Kingston (OCJ) [ Eks ], upon which the Defence relies heavily, in terms of parity in sentencing [Defence Submissions on Sentence, at 9]. [ 61 ] In Eks , the court imposed a suspended sentence with three years of probation. The Crown notes, however, that the fire involved was quite minor and that the accused, Ms. Eks, unlike Ms. E.A., had actually spent some eight months of her bail under virtual house arrest. B.

Defence [ 62 ] The Defence argues that the appropriate sentence in this case is a suspended sentence with a period of probation of between two to three years. [ 63 ] The Defence points to a number of factors which should mitigate the sentence, namely that: Ms.

E.A. is a relatively young first- time offender; by pleading guilty she has demonstrated true remorse to her community for her actions; and she has demonstrated significant rehabilitation in the 20 months since commission of the offence by giving up alcohol, regaining custody of her oldest daughter, and working positively with social services and an elder in the community to maintain this new lifestyle. [ 64 ] The Defence says that Ms. E.A. committed this offence during a period of desperation and intoxication that was out of character for her. [ 65 ] In particular, Counsel notes that Ms.

E.A.’s significant distress on the night in question is apparent from her comments about being abandoned by her mother and about not having any family and wanting to die. The Defence references the Alberta case of R v Okimaw , 2016 ABCA 246 at para 55 , 340 CCC (3d) 225 , for the proposition that a life of such hardship “will be braided into the thinking process of any individual from a young age” and has an important impact on moral blameworthiness. [ 66 ] The Defence says Ms.

E.A. committed this offence as a suicide attempt and that accordingly–within the context of proportionality– her moral blameworthiness is significantly attenuated by her level of intoxication and emotional distress at the time. This should, the Defence submits, impact the type of penalty she receives. [ 67 ] In dealing with a relatively young aboriginal first-time offender, according to the Defence, the Court must be guided by the common law principle of restraint as well as the application of the remedial provisions of

section 718.2 (

e) of the Criminal Code . In this case, the Defence says, these two principles should operate to allow a suspended sentence as the appropriate disposition. [ 68 ] The Court is urged to consider parity in the sentencing process by looking at other arson cases involving first-time offenders. In this regard, the Defence relies upon the case of Eks, where a sentence with three years of probation was imposed.

[69] The Defence argues that the sentencing objectives of denunciation and deterrence can be met without incarcerating Ms. E.A.. Inthis regard, the Defence places reliance on two cases, one from Ontario and the other from Yukon. [70] In the Ontario case of R v Kutsukake (ON CA), [2006] OJ No 3771 at para 6, 213 CCC (3d) 80 (ONCA)[Kutsukake], the accused was pulling her friend on roller blades behind a car. The friend fell under the car and was killed. On appeal, a12-month jail sentence was set aside and substituted with an 18-month conditional sentence and two years of probation.

In substitutingthe sentence, the Court noted that the offender’s community service should be in the form of speaking at schools about the dangers ofher conduct. [71] The Defence suggests that Kutsukake stands for the proposition that the Court found that general deterrence can often be betterserved by alternatives to incarceration (in this case, by having the accused share her experience with others likely to engage in the samebehaviour). [72] In the Yukon case of R v Maynard, 2016 YKTC 51, 2016 CarswellYukon 131, a suspended sentence was imposed on an aboriginaloffender for the offence of trafficking in cocaine.

Defence Counsel suggests that the Yukon Territorial Court endorsed thepronouncement from the British Columbia Court of Appeal that a suspended sentence can have a deterring as well as a denunciatoryeffect. [73] The Defence position is anchored, so to speak, on what the Defence considers Ms. E.A.’s low level of moral blameworthiness atthe time she committed the offence. [74] In the concluding portion of the written submission, the Defence maintains that Ms.

E.A.’s moral culpability “is not one thatwarrants a highly punitive denunciatory deterrent sentence that would be crushing, with the effect of removing her young daughters fromher care undoing the progress she has made since December 2015.” And further, the Defence states, “on the continuum of arsonoffences, Ms. E.A.’s level of moral blameworthiness falls at the low end of the scale. In the circumstances, a fit sentence for Ms. E.A. isa lengthy period of probation” [Defence Submissions on Sentence, at 13]. V.

SOME CASE AUTHORITIES INVOLVING ARSON [75] Both Counsel have provided me with some case precedents involving arson-related offences from other jurisdictions. Theseauthorities are useful in the sense that they are a snapshot (so to speak) of the range of sentences imposed. I will review them briefly,with a concluding observation. [76] In the Alberta case of R v Yellowknee, 2017 ABCA 60, 346 CCC (3d) 22, the Court of Appeal upheld a 12-month period ofimprisonment (followed by a 12-month period of probation).

The accused, an aboriginal man, pleaded guilty to arson (section 434 of theCriminal Code), mischief, and breach of his bail conditions. He had set fire to a derelict trailer in which he was living with his spouse.He was alone in the trailer and drunk. He had been texting his spouse to come and fetch her belongings. The trailer was destroyed, as wassome property belonging to a third party. It is not clear from the judgment whether the accused had any criminal record, but there werenonetheless compelling Gladue factors before the original sentencing judge.

The trailer itself belonged to the community and thesentencing judge had rejected the accused’s plea for an intermittent sentence of less than 90 days. [77] In the Ontario case of R v Pidgeon, 2016 ONCJ 334, [2016] OJ No 3010, the Provincial Court imposed a five-month jail period(followed by two-years of probation). The female accused with no criminal record was found guilty of arson (section 434 of theCriminal Code) after a lengthy trial.

She had set fire to her own home and had attempted to make it look like the fire started accidentally.She lived alone in the house and was alone when she started the fire, which was discovered within minutes, when neighbours sawsmoke. The house before the fire was in such a state of disrepair that it was almost uninhabitable and a positive pre-sentence report wasbefore the Court.

Nonetheless, a jail term was imposed. [78] In another Ontario case, R v Levere, 2010 CarswellOnt 10902, 97 WCB (2d) 47 [Levere], aff’d 2011 ONCA 576, 2011CarswellOnt 9078, the male accused, a first offender, had pleaded guilty to a charge of arson. He was sentenced to imprisonment for 20months in his community under a Conditional Sentence Order (followed by three years of probation, including 180 hours of communityservice work). The accused had set fire to his own home by using a time release incendiary mechanism, in an attempt to make it appearthat the fire was electrical in origin.

There was no one in the residence when the fire department arrived. It appears the fire was quiteminor and basically had burned itself out due to lack of ventilation. There was also considerable evidence before the sentencing judgeabout the accused’s mental state at the time the fire was committed–in particular as to whether he had actually intended to burn himselfto death [Levere, at para 82]. [79] In another Alberta case, R v Sharpe, 2008 ABPC 100, 2008 CarswellAlta 509, the 52 year-old female accused, a first-timeoffender, pleaded guilty to a charge of arson causing bodily harm.

She was sentenced to imprisonment for 20 months under a conditional

sentence order (followed by three years of probation). While intoxicated, she had used a lighter to set fire to a mattress in the same roomwhere her common-law spouse, the victim, was passed out. The fire quickly got out of control and the victim had to jump out a windowto safety. He suffered severe and lasing injuries. There was also considerable damage done to the home before the fire department couldput out the fire. The accused had spent 53 days in custody on remand and came before the Court with a positive pre-sentence reportwhich recommended a community-based sentence.

She also received a positive psychiatric assessment. [80] The only case authority provided to me where the accused was placed on a suspended sentence of probation is the Ontario case ofEks. In Eks, the accused was a 62-year-old woman who had pleaded guilty to mischief as well as attempted arson endangering life. Shereceived a three-year suspended sentence with terms which included abstention from alcohol, counselling, and 120 hours of communityservice work. Ms. Eks had a dispute with a neighbour and poured gasoline around the neighbour’s home (the foundation of the house, thelawn, and the deck).

She lit the gas on fire while the family inside was asleep, but the fire went out on its own. [81] An important aspect of the sentence, however, was that the accused, Ms. Eks, had actually spent the first eight months of herrelease on bail under house arrest. This factored in greatly into the ultimate sentence imposed, as the sentencing judge said these eightmonths were, “tantamount, in my view, to a conditional sentence” [Eks, at 28-29]. [82] Respecting the case authorities filed, it would appear that imprisonment is the norm or rule, rather than the exception, aspunishment for the crime of arson.

And while two of the case authorities support a community-based disposition in the form of aconditional sentence, a conditional sentence is simply a different form of imprisonment. [83] It is also common ground in this case that a period of incarceration in the community under a supervised Conditional SentenceOrder is not available as a sentencing option for Ms. E.A. (as a result of the Criminal Code amendments which were made prior to thecommission of her offence). VI. ANALYSIS [84] I approach the appropriate sentence in Ms.

E.A.’s case, as in all cases, within an analytical framework which deals first with thefundamental principle of proportionality as set out in

section 718.1 of the Criminal Code. [85] This provision says that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility ofthe offender. [86] The punishment must fit the crime that Ms. E.A. has committed. It must also fit and reflect Ms. E.A.’s moral culpability at the timeshe committed the crime. [87] I must then consider and apply the codified sentencing objectives of general and specific deterrence of crime, denunciation ofcrime, as well as assistance in the individual rehabilitation of the offender. [88] I must also consider whether, in Ms.

E.A.’s case, any sentencing objectives should be applied as paramount in arriving at a fitsentence. [89] In doing so, I must examine the aggravating and mitigating circumstances in the case–that is, what factors favour a more severepenalty, and what factors favour a less severe penalty. [90] I must also be mindful of Ms. E.A.’s status as an aboriginal offender.

Section 718.2(

e) of the Criminal Code requires that: “allavailable sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or tothe community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.” [91]

Section 718.2(

e) of the Criminal Code has been interpreted with trial courts given guidance in its application by our Supreme Courtin R v Gladue (SCC), [1999] 1 SCR 688, 171 DLR (4th) 385 [Gladue], and R v Ipeelee, 2012 SCC 13, [2012] 1 SCR433 [Ipeelee]. In this regard, even if I conclude that a suspended sentence in Ms. E.A.’s case is not “reasonable in the circumstances”, Imust still exercise restraint when imposing any jail time. [92] At the end of the day I must attempt to craft a sentence which satisfies the fundamental principal of proportionality as well as thevarious objectives of sentencing as set out in the Criminal Code.

[93] Practically, however, the sentence which I impose upon Ms. E.A. must be one which, in my view, best promotes safe communitiesand a safe Nunavut. It must also be a sentence which maintains the confidence of the community in the administration of justice. [94] And while the principle of parity in sentencing is an important one, attempting to achieve sentence uniformity is often a difficultand illusionary task.

Even according to our Supreme Court in R v M(CA) [1996] 1 SCR 500 at para 92, (SCC), paritymust take a back seat to an individualized approach in sentencing an offender. [95] In Nunavut, there is a strong and well settled juridical tradition to take this individualized approach to the appropriate sentence ineach case–not just in terms of what is the most effective sentence for the offender, but also what sentence is appropriate considering theneeds and current conditions of the community where the crime occurred. [96] Indeed, M(CA) has made it clear that sentences across the country may be expected to vary to some degree to reflect local valuesand needs. [97] Respecting the fundamental principle of proportionality as it applies in Ms.

E.A.’s case, I would say that while her offence is aproperty crime, the gravity of her crime is severe. It is an offence punishable by a maximum penalty of 14 years imprisonment. The factsof the crime are also severe in that the property involved, unit 3015, was destroyed. [98] In terms of Ms. E.A.’s degree of responsibility at the time she committed the crime, I must examine the circumstances under whichshe committed the crime, not the crime itself. [99] Clearly, as Defence Counsel suggests, Ms. E.A. was under severe distress at the time she lit the fire.

I have no reason to doubt thather motive to start this fire was to go up in flames herself. [100] But I do not agree that this was nothing more than an unsuccessful suicide attempt, the kind of thing which would normally attractmore sympathy than condemnation from right-thinking members of the public. [101] In my view, Ms. E.A. was well aware, despite her intoxicated state, that setting fire to her house would not just be dangerous toherself, but to others in the neighbouring units as well.

Particularly in Cape Dorset, people are well aware of the devastation andpotential danger of fire. [102] Knowing of this inherent danger, Ms. E.A. talked with L. about her intentions to light up the house earlier in the evening; she toldJeffrey she was going to use camp fuel to start the fire; and then she had the presence of mind, despite her drunken state, to start the firein two separate locations in the house. [103] In this latter regard, I pause to note that I do not agree with the statement contained in the Defence written submission that “no oneknows what happened inside House 3015 when Ms.

E.A., in a statue of despair and threatening suicide, was left alone” [DefenceSubmissions on Sentence, at 2, para 8]. [104] To the contrary, we do know what happened: the facts of the offence were read into the record by the Crown Attorney in openCourt on 24 August, 2017. As part of the narrative, the Crown stated that the Fire Chief identified two locations where the fire hadstarted. At the conclusion of the Crown’s narrative I asked Defence Counsel if the facts were admitted.

In response, Defence Counselcategorically agreed that the facts as read by the Crown were admitted (subject to her own clarification of what Defence Counsel thoughtMs. E.A. had said to the police) [Sentencing transcript, at 23, ll, 20-21]. [105] Accordingly, we do know what happened when Ms. E.A. was alone in the house: she started the fire, either recklessly orintentionally (indeed, by pleading guilty she accepts this fact); and, further, she started the fire, as the Fire Chief concluded, in both theupstairs bedroom and the downstairs living room. [106] It is not the fact that Ms.

E.A. started the fire in two locations which is important. It is the fact that she started the fire, period,knowing the danger involved. This, despite her drunkenness and distressed mental state, compels me to conclude that her moralculpability was not, as suggested by Defence, at the lower end of the scale. [107] I agree that her culpability would have been higher had she been sober, and indeed more so if she had used an accelerant to start thefire. But, that said, her moral culpability is not greatly diminished by her distressed mental state.

Nor do I consider the fact she was drunkto be a mitigating factor. [108] I do agree, however, with the Defence that there are factors which should serve to mitigate Ms. E.A.’s sentence, namely her guiltyplea, her relative youth, and her rehabilitative efforts since she has been released on bail.

[ 109 ] But these mitigating factors cannot, in terms of the type of sentence to be imposed, overcome the most glaring aggravating circumstances in the case: the danger to people in the neighbouring units and to the units themselves, as well as to the firefighters; and the fact that the community of Cape Dorset has been deprived of a very valuable asset, a housing unit, in circumstances where public housing is in such short supply. [ 110 ] I have considered the case authorities cited by the Defence in support of a non-custodial sentence in Ms.

E.A.’s case. [ 111 ] In the Ontario case of Kutsukake , the Court of Appeal set aside a 12 month jail term and substituted it with an 18 month conditional sentence followed by two years of probation. The accused was a 20-year-old aboriginal female with no criminal record. She pleaded guilty to a charge of criminal negligence. She had been pulling a friend with a tow rope behind a car as a result of which the friend was killed.

A term of the accused’s community service involved accused speaking in local schools about the danger of her conduct. [ 112 ] In Kutsukake , however, as tragic as the event was, it was essentially an accident and there was obviously value in having the young accused speak to local high school students about the folly of her behaviour in order to deter other young people from similar activity. [ 113 ] In contrast, Ms.

E.A.’s crime was far from accidental and I see little value in having her speak to other members of the community, for example on the local radio, about her drunken behaviour. [ 114 ] In the Yukon case of Maynard , a suspended sentence was imposed. The accused was an aboriginal offender with no criminal record. He pleaded guilty to a charge of drug trafficking. He had sold three grams of cocaine to an undercover officer and arranged for the officer to buy another ounce of cocaine from a third party. [ 115 ] As much as cocaine is a blight upon society, in my view, Ms.

E.A.’s conduct had a much greater community impact than the single act of drug trafficking by the accused in Maynard. [ 116 ] And finally, in the Ontario case of Eks, a suspended sentence was imposed. However, I agree with Crown Counsel that Eks is distinguishable from Ms. E.A.’s situation in that the fire involved was a minor one, and the accused, unlike Ms. E.A., had spent some eight months of her bail essentially under house arrest. [ 117 ] As I approach the application of

section 718.2 (

e) in this case, I agree that the Gladue factors involved are compelling. However, in this case, the Gladue factors cannot mitigate the type or form of the penalty. [ 118 ] The paramount sentencing objectives to be applied in this case are deterrence and denunciation, in particular denunciation. [ 119 ] In my view, a suspended sentence is not a sanction which, in the words of

section 7182(e), is “reasonable in the circumstances”. [ 120 ] The reason for this is quite simply that a community-based disposition of probation only is not sufficiently denunciatory of the crime which Ms.

E.A. committed. [ 121 ] In both Gladue and Ipeelee , our Supreme Court recognizes that public safety, denunciation and deterrence of crime–and not just violent crime–are values embraced by members of all communities, aboriginal and non-aboriginal. [ 122 ] The imposition of a suspended sentence in this case would be a signal to the people of Cape Dorset, and in particular the local housing authority, that the Court does not take Ms.

E.A.’s crime seriously. [ 123 ] People in communities have a right to assume that when their neighbour (whether in a moment of anger, or in a drunken stupor, or in suicidal mood) decides to set fire to his housing unit, the Courts take this type of activity seriously and are prepared impose jail terms. [ 124 ] In addition, in terms of general deterrence, a suspended sentence in this case would, to others who might be inclined to set fire to their housing unit, be a signal that nothing of any real consequence will result.

[ 125 ] I accept the Defence submission that the sentencing objective of individual deterrence may in this case be satisfied without a jail term.

However, in my view, the only reasonable sanction which satisfies the denunciatory and general deterrent objective is the very real consequence of imprisonment. [ 126 ] The imposition of a suspended sentence would, as the Crown has suggested, be an overemphasis on the sentencing objective of individual deterrence to the exclusion of the denunciatory and deterrent objectives. [ 127 ] Indeed, even if a conditional sentence of supervised imprisonment in the community was available in this case as a matter of law, it would not be sufficiently denunciatory of the offence which has been committed.

I would, thus, decline to impose such a sanction. [ 128 ] I accept that Ms. E.A. was in a state of severe general distress in the few months leading up to 7 December, 2015, when she committed the offence. In particular, I understand her frustration in not being able to see her daughter since August of 2015. [ 129 ] I accept that her motivation in starting the fire, albeit fueled by drink, was to end her own life.

But for these circumstances–if she simply was drunk and angry–I would impose sentence in the high territorial range. [ 130 ] However, I accept the Crown’s fair but firm reassessment of its position that Ms. E.A.’s sentence should be shortened because of these compelling personal circumstances. [ 131 ] In addition, in applying the remedial provisions of

section 718.2 (

e) of the Criminal Code , as well as the common law principle of restraint, I am required to temper justice with mercy and to impose only the minimum amount of jail necessary to satisfy, in this case, what I consider the paramount sentencing objective of denunciation. VII. CONCLUSION [ 132 ] I will keep the amount of imprisonment within the range suggested by the Crown, namely between six and nine months jail. [ 133 ] I am not, however, compelled to accept the bottom end of the Crown’s suggested range as sufficiently denunciatory of Ms. E.A.’s offence.

I am of the view that the minimum amount of jail necessary in this case is nine months imprisonment. [ 134 ] Ms. E.A., I sentence you to nine months jail.

Under our sentence calculation guidelines that equals 270 days jail. [ 135 ] I will credit you with 10 days remand which is deducted from the 270 days, leaving you with a net jail sentence, starting today and going forward, of 260 days. [ 136 ] I will make a special endorsement on your warrant of committal recommending that the corrections authorities allow for an early release so that your baby does not suffer the stigma in later life of being born while his or her mother was in jail. [ 137 ] Upon your release, you will be placed on probation for 18 months. [ 138 ] The terms of the probation are that you will report to probation services within seven days of your release.

You will take counselling as directed by probation services for alcohol abuse and any mental health issues that you and probation services feel need to be addressed. This includes counselling with an elder of your choosing. [ 139 ] I see no need to require a DNA sample from Ms. E.A. for possible future investigative purposes as she has no history of violence and did not, on this occasion, commit an offence of personal violence. There will be a Victim’s Services tax in the amount of $200 and Ms. E.A. will have until 30 September, 2018 to pay. Dated at the City of Iqaluit this 5th day of September, 2017

__________________________ Justice N. Sharkey (Senior Judge) Nunavut Court of Justice