R. v. Cooper-Flaherty, 2017 NUCJ 11

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Cooper-Flaherty, 2017 NUCJ 11 Date: 20170711 Docket: 08-15-248; 08-15-249; 08-15-250; 08-15-167; 08-15-167-1 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Michael Cooper-Flaherty ________________________________________________________________________ Before: The Honourable Mr. Justice Paul Bychok Counsel (Crown): Doug Garson Counsel (Accused): Yoni Rahamim Location Heard: Iqaluit, Nunavut Date Heard: April 04, 2017 Matters: s. 344 (1) (a.1), s. 344(1) (b), s. 145(3) R. v. Gladue Sentencing REASONS FOR JUDGMENT

Amended Decision: An amended decision was issued on July 12, 2017; the corrections have been made to the text and the amendment is appended to this judgment. (NOTE: This document may have been edited for publication) I. BACKGROUND [ 1 ] The twenty-year-old offender, Michael Cooper-Flaherty, has pleaded guilty to five robberies in Iqaluit. Three of the robberies happened on 17 November 2014, 4 December 2014, and 10 February 2015. The last two happened on April 6 and 12, 2015. He also pleaded guilty to breaching his bail conditions on April 12, 2015. A preliminary inquiry was held on March 7, 9 and 10, 2016. Mr.

Cooper-Flaherty later pleaded guilty to the offences before the court. That happened on August 18, 2016. The court received the facts and heard sentencing submissions from Crown and Defence counsel on April 4, 2017. I reserved my decision on sentence until this morning. II. BASIC FACTS [ 2 ] I will first recite the facts concerning each robbery as they were described to the court. A. November 17, 2014 [ 3 ] The first robbery happened around 11 p.m. on November 17, 2014. The victim, Mr. Jeff Wood was the assistant manager of the Baffin Gas Bar and convenience store.

He was robbed just in front of the steps of the Royal Bank as he was heading there to make the night deposit. Mr. Cooper-Flaherty and another man ran up behind him with the intention of robbing him. Mr. Cooper-Flaherty’s companion grabbed the deposit and they ran away. The deposit bag held something over $6,000. The money was never recovered. B. December 4, 2014 [ 4 ] The second robbery happened during the evening of December 4, 2014. The victim, Ms. Nicole Amagoalik was working as a clerk at the Plaza Quick Stop. There was another clerk working that night.

At some point, a sixteen -year-old male grabbed a can of pop and approached the till. His face was concealed. The man pulled out a pocket knife and demanded all the money in the till. The victim gave him the money and her assailant fled with approximately $900. Mr. Cooper-Flaherty was just outside the store during the robbery. The offender and his accomplice hailed a taxi and left the scene. The police investigation determined that Mr. Cooper-Flaherty had persistently pressured the youth into committing the robbery. The money was never recovered. C.

February 10, 2015 [ 5 ] The next robbery happened during the evening of February 10, 2015. The teenaged victim, Tamara Kakee was working at the Plateau Convenience Store with another teenager and an adult supervisor. Some time that night, Mr. Cooper-Flaherty, and two other young males drove to the store. Once they arrived outside, Mr. Cooper-Flaherty gave his fifteen-year-old accomplice a pocket knife. His accomplice entered the store when the supervisor left for a break. The male was wearing a blue face mask. He went to the front counter, brandished the knife, and demanded all the money from both cash registers.

He then came around the counter while Ms. Kakee emptied the tills into a bag. The male grabbed the bag and fled outside. The three accomplices then drove away with about one thousand dollars. The police investigation revealed that Mr. Cooper-Flaherty had persistently pressured the youth to help him commit

the crime. The money was never recovered. D. April 6, 2015 [ 6 ] The next robbery happened during the afternoon of April 6, 2015. The victim, Ms. Samantha Chartrand was working at the KFC Quick Stop convenience store with a colleague. At some point, two fifteen-year-old males entered the store. Both their faces were masked. One of them pointed a .22 calibre rifle directly at the victim while he demanded the money in the till. The other male carried a pillow case. Both assailants were telling her to “hurry up”. She gave them $400 which one of them put into the pillow case. The males then fled the scene.

The police investigation revealed that Mr. Cooper-Flaherty had pressured the youth into committing the crime. Mr. Cooper-Flaherty supplied the rifle. The Court was never told who owned the rifle, or how the offender obtained it. The money was never recovered. E. April 12, 2015 [ 7 ] The fifth robbery also happened at the same KFC Quick Stop six days later. Mr. Cooper-Flaherty was free on bail. Ms. Samantha Chartrand was again victimized this time along with her colleague, Mr. Chris Ledger. Sometime that afternoon, two teenaged males entered the store. The eighteen-year-old carried a .22 calibre rifle.

The fifteen-year-old carried a pillow case. The male with the rifle pointed it at the two employees. He told them to open the cash register. Mr. Ledger opened the till and gave approximately $800 to the two males who then fled. The police investigation revealed that the fifteen-year-old have been involved in the robbery six days prior. Mr. Cooper-Flaherty planned the robbery and provided the rifle. The money was never recovered. III. POSITIONS OF THE PARTIES [ 8 ] The prosecutor, Mr. Doug Garson, says the Court should sentence the offender to a total five-year penitentiary term for all his six offences.

I note that the Criminal Code requires a mandatory four-year minimum penitentiary for the April offences. He emphasized the presence of significant Gladue factors. [ 9 ] Defence counsel, Mr. Yoni Rahamim, urged the court to release his client on restrictive bail conditions so he can start to get access to medical treatment. He suggested Mr. Cooper-Flaherty should then be sentenced to a four-year jail term. He emphasized Gladue factors as well as the harsh circumstances of his client’s remand experience . He asked the court to give his client remand credit beyond what is provided for in the Criminal Code .

I shall say more about this young man’s medical needs and remand history in a few moments. IV. PRINCIPLES OF SENTENCING [ 10 ] These robberies had a profoundly unsettling effect. The prosecutor was right to say many Iqalummiut felt “big city crime” was hitting our community. For that reason, I shall say a few things about the principles of sentencing which I as a judge must apply. [ 11 ] Sentencing in a Canadian criminal court is an individualized process. Every offender, and every case, is unique.

A judge must weigh the objectives and principles of sentencing against the specific circumstances of each case. [ 12 ] There are important principles a judge must follow when imposing a sentence. These rules are found in the Criminal Code of Canada [1] [ Criminal Code ]. Above all, the sentence I impose must serve to protect the public, and to foster respect for the law and our system of justice. I shall now comment on how other sentencing principles apply to the facts of this case. [ 13 ] The Criminal Code directs judges to denounce and condemn unlawful conduct.

This principle is extremely important when it comes to serious crimes involving violence or the threat of immediate violence. Two of these robberies were at knife point. The last two involved a rifle. The sentence I impose must clearly condemn these extremely serious crimes. [ 14 ] The sentence I impose today must also attempt to deter Mr. Cooper-Flaherty and others from committing these crimes. Common sense tells us that serious crimes must have serious consequences. This principle leads us to what we call ‘proportionality’. [ 15 ] The Criminal Code directs judges to consider ‘proportionality’.

This principle is at the heart of the sentencing process. This legal term means a sentence should reflect the seriousness of the crime, and the offender’s responsibility for it. In this case, I deal with an offender who was the mastermind behind a spree of five robberies. He also bullied several young persons into committing the robberies with a knife or rifle while free on bail.

[ 16 ] Sentencing judges are directed to act with ‘restraint’. This means the court must impose the least harsh sentence which can achieve the goals involved in sentencing. Jail must only be imposed when there is no reasonable alternative. In Canada, jail is imposed only as a last resort. Combined sentences are not to be unduly long or harsh. Here, the Criminal Code directs judges to be especially aware of the circumstances of Aboriginal offenders. [2] Mr. Cooper-Flaherty is a twenty-year old first-time offender. The sentence I impose should not crush his spirit and hope for rehabilitation.

However, the spree of serious crimes in these circumstances must be punished by imprisonment. [ 17 ] Imprisonment is consistent with traditional Inuit justice. When a person threatened the traditional group’s safety and security, that person could be, and sometimes was, banished. Many were welcomed back later into the group. Forgiveness, reconciliation, reintegration and restitution were, and still are, key aspects of Inuit justice. As they are today in the Nunavut Court of Justice. [ 18 ] In every case, we hope to see the offender rehabilitate, to heal.

Most of the cases we deal with involve substance abuse and mental health issues. So, in Nunavut rehabilitation is at the forefront of each sentencing decision we make. I agree completely with defence counsel when he said there can be no effective deterrence without rehabilitation. Sadly, the reality is both the Criminal Code and Territory of Nunavut give this court few rehabilitative tools with which to work. We see scores of these offenders in court over and over again. [ 19 ] Anyone who doubts the territory is in crisis should travel with this court. The needs are immediate. The pain and suffering is real.

But, the sad reality is very few, if any, offenders are rehabilitated the way things are now. [ 20 ] I will discuss momentarily how these very issues have had an impact on Mr. Cooper-Flaherty and his sentence. [ 21 ] The Criminal Code directs judges to consider ‘totality’. This legal term means a judge is not allowed simply to add up the sentences for each individual offence. The final, total sentence should be no more than the overall responsibility of the offender. Totality plays a significant role in this sentence because Mr.

Cooper-Flaherty is being sentenced for five robberies and a bail breach. [ 22 ] Sentencing judges must also consider ‘case-law’. Case-law is made up of published reports that tell us what other judges have done in similar circumstances. This is extremely important. It is only fair that similar offenders should be treated similarly for similar crimes. [ 23 ] One of the most important cases is called the Queen v Gladue [3] [ Gladue ]. It is called that because in Canada all criminal prosecutions are done in the name of Her Majesty the Queen. Gladue was the name of the offender in that case.

Gladue is a very important case from the highest court in the land, the Supreme Court of Canada. In fact, the Nunavut Court of Justice is a Gladue court. To make a long explanation short, our court must account for the unique circumstances of Nunavut Inuit, their history, and society. I have spoken at length about Gladue in the Nunavut context in R. v. Mikijuk . [4] [ 24 ] The Gladue case requires a sentencing judge to consider the circumstances of the offence, the offender, the victim and their community. Nunavut is in crisis. Alcohol abuse is tearing apart our society.

Alcohol abuse fills our criminal and child protection court dockets. Gun violence is epidemic. Nunavut leads the country in suicides. The legacy and ongoing impact of forced settlement and residential schools is inter-generational. I must take these facts into account. [ 25 ] Gladue is a constant reminder to everyone in our justice system: it reminds us that justice, if it is to approach true justice, must be rooted in the community it serves. Gladue informs every decision we make. It is the lens through which we look at every case.

Every sentence of the Nunavut Court of Justice involving an Inuk is a Gladue sentence. [ 26 ] There is another important aspect to Gladue . The case tells us that practically speaking, sentences for serious or violent crimes will be similar whether the offender is Aboriginal or non-Aboriginal. On its face, this case would normally fit into this category. There are extenuating factors in this case, though which I discuss later. [ 27 ] The Criminal Code also requires a mandatory minimum four-year sentence for the last two robberies committed with the rifle.

By combining the last two robberies into one criminal charge, the prosecution has made Mr. Cooper-Flaherty liable for four and not eight years for those two crimes. [ 28 ] The Criminal Code also directs that I consider mitigating and aggravating factors. [ 29 ] Mitigating factors work to lessen an offender’s sentence. There are three mitigating factors present. • Mr. Cooper-Flaherty is a youthful first-time offender.

• He has pleaded guilty, albeit only after witnesses testified at a preliminary inquiry. • He suffered particularly harsh circumstances during his two-year remand which affected his health and hindered his rehabilitation. [ 30 ] Balanced against these mitigating factors are several aggravating ones which work to increase his sentence. • Mr.

Cooper-Flaherty master-minded a spree of five robberies over four months. • These robberies were planned and premeditated. • In four of the robberies his accomplices were armed. • He bullied teenagers into participating in these crimes. • He provided the knife and rifle. • He was free on bail in April 2015 after being charged with other robberies. • The incidents had a profoundly unsettling effect in the community. [ 31 ] It is left to the hoped for good judgment of the individual judge to balance all these things in fashioning a just sentence. V.

CANADIAN VICTIMS BILL OF RIGHTS [ 32 ] Victims of crime have the right to be heard in court. [5] They may read out loud, or the Crown may file a Victim Impact Statement . These statements bring to life the real effect crime has on peoples’ lives. One cannot judge a crime without understanding how its victims were hurt. These statements help ensure victims are not ignored during the sentencing process. The Crown obtained one Victim Impact Statement . [ 33 ] The Crown filed a Victim Impact Statement from one of the victims. In it, Mr. Christopher Ledger recounts how the incident has left him nervous and shaken.

Completing the statement has brought back symptoms of the mental trauma he suffered. All of his victims must have been terrified during the incidents. [ 34 ] This is an appropriate time to repeat that these crimes reverberated throughout this community. The prosecutor was right to remind the court about the anxiety and real fears the armed robberies created in Iqaluit. VI. THE OFFENDER [ 35 ] Mr. Cooper-Flaherty is now twenty-years-old. He was eighteen when he committed these crimes. He is a first-time offender.

His young life and experiences are heart-breaking, as are so many of the life stories we regularly hear. Gladue principles in this case mesh with our long-standing Canadian notion that justice must always be tempered with mercy. [ 36 ] Mr. Cooper-Flaherty’s parents divorced when he was very young. His mother was a severe alcoholic. His mother was rarely home so he and his brother often were on their own. There were drunk people fighting all the time at his home. He watched his mother being severely beaten by various partners. He was bounced between his parents and foster care until he was ten.

He then lived with his father until he ran away at fifteen. It appears he has lived on his own ever since then. Not surprisingly, he did not finish high school. [ 37 ] Mr. Cooper-Flaherty reported that he started smoking marijuana at thirteen and smoked as much as he could every day. He started drinking alcohol at fifteen. He started using hard drugs regularly like cocaine, ecstasy and speed around the same time.

[ 38 ] Defence counsel provided a lengthy report from Ms. Janine Cutler, Ph.D., C. Psych. It discusses Mr. Cooper-Flaherty’s psychological state and risks of re-offending. She reported that he suffers from post-traumatic stress disorder, persistent depressive disorder, obsessive-compulsive disorder and substance abuse disorder (marijuana and cocaine). [ 39 ] Ms. Cutler also stated the following respecting his risk of re-offending: In terms of risk management, it will be imperative that Mr. Cooper-Flaherty adhere to a treatment plan to address his therapeutic issues, substance abuse and stress.

It is difficult to ascertain whether Mr. Cooper-Flaherty would comply with a treatment plan…In addition, although he recognizes that he is not doing well in a number of areas of his life, the testing results suggested that it is possible that he will be resistant to the idea that he needs to make changes in his life. Consequently, treatment likely would be fairly challenging. [6] [ 40 ] Prior to sentence being passed, an offender has the right to address the court. Mr. Cooper-Flaherty read a prepared statement.

It is worth repeating some of what he read aloud: Your Honour, I would like to take this opportunity to apologize for what I’ve done and explain why I did what I did. I apologize to Your Honour, my co-accused, the victims of my crimes, and to the whole community of Iqaluit. I am truly sorry for what I have done and take full responsibility for my actions. I’ve had a very long time to think about what I’ve done, twenty-four months. I know what I did was completely wrong and nothing I say or do can justify it.

Robbing and planning to rob those stores and people was the stupidest decision I’ve ever made and the biggest mistake in my life, and honestly, if I could go back and take back what I did, I would. When I committed the first robbery, it was mostly impulsive, mixed with anger and frustration and also, trying to prove to my friends that I was capable of doing it. I sound stupid, I know, but that’s the honest answer. I was in a bad situation also in my life at the time. It was very unstable, and drug dealing to get by and moving from house to house because I ran away from home.

I was also fifteen-years- old … I know you’ve heard this many times before, but when the day comes and I’m released from here, I’m going to do everything I can to make sure I never have to come back to jail. This is not the kind of life I want to live anymore. I don’t want to waste another day of my life doing nothing and being miserable and angry when I could be doing so many good things for myself. Trust me, after today I’ll try my best to never come back into these court rooms again. I promise you that. [ 41 ] I turn now to the two wasted years on remand referred to by Mr. Cooper-Flaherty. VII.

CORRECTIONS HISTORY AND REMAND CREDIT [ 42 ] The Criminal Code says a judge may take time spent on remand into account when passing sentence. Generally, that credit is calculated at one day of credit for each day on remand. However, judges may in certain circumstances grant credit at the rate of one and a half days for each remand day. [7] In Nunavut, judges routinely give this level of enhanced credit. This fact reflects the harsh conditions found at the Baffin Correctional Centre (BCC). [ 43 ] Defence counsel has argued that I should grant an even more generous credit here.

He cited R. v Duncan a decision of the Ontario Court of Appeal case to support his submission. [8] I read that case differently. In my view, the Duncan case says particularly harsh remand conditions may be a factor which mitigates the sentence. Those harsh conditions also must have had an adverse impact on the offender. These two factors are present in this case. I shall return to this aspect of the case momentarily. [ 44 ] I am troubled and dismayed by Mr. Cooper-Flaherty’s corrections history. He has served a total of 824 days on remand.

This long remand was served in no less than three separate institutions, two of them in Ontario. This very troubled young Inuk was shuffled between BCC, the Central East Correctional Centre (CECC) in Lindsay and the Ottawa Carleton Detention Centre (OCDC as it is called). The parties agree he spent 377 days at BCC, 327 days at CECC and 120 days in OCDC. I take judicial notice that OCDC is notorious throughout the Canadian criminal justice system for its deplorable physical conditions. [ 45 ] During the entire time Mr.

Cooper-Flaherty was on remand, the authorities offered him only one course: Alternatives to Violence . He completed that course successfully. Two entire years in custody, in the complete control and at the whim of corrections authorities, and he was never offered anything more than that. I was told the authorities only offered him several counselling sessions and only one meeting with a psychiatrist. He asked for more psychiatric help which never came.

[ 46 ] Twice during remand, this young man attempted to commit suicide. We must work harder to change the perception of too many young despairing Inuit that suicide is an option. [ 47 ] One may fairly say the past two years were a missed opportunity to offer Mr. Cooper-Flaherty help to get better and to rehabilitate. I will be blunt. Right-minded members of society expect, and the Criminal Code directs unambiguously, that we foster rehabilitation.

This case is yet another shameful example of how we fail to offer meaningful help to those of our fellow citizens who are most in need. [ 48 ] But that was not the end of Mr. Cooper-Flaherty’s difficulties on remand. Through absolutely no fault of his own, he was victimized by repeated institutional lockdowns. The parties have agreed on the number of days he was confined to a cell. Of the 327 days he spent at CECC, no less than 107 of those days were spent on lock down. At OCDC, he was confined to his cell for 51 days of the 120 days he was there.

Defence counsel told me he asked the authorities at BCC for their lockdown numbers, but they ignored his request. [ 49 ] I will say one further thing concerning BCC. Ms. Cutler reported a litany of complaints made to her by Mr. Cooper-Flaherty about his treatment at BCC. [9] I am directing the clerk of the court to send a copy of that report to the Warden at BCC. VIII. SENTENCE [ 50 ] The sentence I impose must strongly denounce these serious crimes. Taken alone, the gravity of this serious crime spree would justify a seven-and-a half year sentence. However, this sentence would condemn Mr.

Cooper-Flaherty to serve his sentence in a federal penitentiary in southern Canada. [ 51 ] Eighteen years after Division from the Northwest Territories, we are right to ask: why does Nunavut still send its Inuit federal inmates south? This mentally ill young man has suffered enough at the hands of the correctional system. Of his two-year remand, he spent almost one year and a half of his most formative years in the south, where he was isolated and alone. Southern jails do not reflect traditional Inuit cultures or norms. Southern jails do not rehabilitate our offenders.

Southern jails do not contribute to a healthy Nunavut. Canada’s 150th anniversary provides an opportunity for all of us to take stock of how far we still must go in building a fair and truly compassionate society. [ 52 ] Mr. Cooper-Flaherty must be punished for these serious crimes. A strong deterrent message must be sent. Serious crimes have serious consequences. But, after what Mr. Cooper-Flaherty has been forced to endure, it would be a grave injustice to remove him again from Nunavut. Therefore, I will accept the prosecutor’s recommendation and sentence him to five years jail.

A five-year jail sentence is a very serious punishment for a twenty-year old. This pre-sentence-remand-credit sentence is broken down as follows: • November 17, 2014 60 days jail consecutive • December 4, 2014 150 days jail consecutive • February 10, 2015 155 days consecutive • April 6 & 12, 2015 1,460 days consecutive • April 12, 2015 bail breach 90 days concurrent The sentence, then, is a total of 1,825 days in jail.

[ 53 ] I have already outlined the extremely harsh remand conditions which Mr. Cooper-Flaherty endured. It is a mitigating factor along with Gladue principles I have considered in reaching the above sentence. Mr. Cooper-Flaherty spent 824 days on remand. Therefore, he receives enhanced credit at the rate of one-a-half to one. That remand credit totals 1,236 days which I deduct from his sentence. [ 54 ] Stand up please Mr. Cooper-Flaherty.

You will serve another 589 days in territorial jail. [ 55 ] This court does not have the authority to order the correctional authorities to have you serve your sentence in Nunavut. However, I state in the strongest possible language that this court recommends you serve your sentence at the healing centre in Rankin Inlet and on the land in Nunavut. Every effort should be made to get you the counselling and mental health treatment you require. IX. FIREARMS RELATED OFFENCES IN NUNAVUT [ 56 ] I have already referred to the alarming number of fire arm related offences happening across Nunavut.

Public education, free trigger locks and past sentences of this court have not been effective in fostering responsible fire arm storage. In this case, it was too easy for Mr. Cooper-Flaherty and his accomplices to get access to the rifle. Far too many angry, intoxicated or mentally ill persons are grabbing fire arms and putting at grave risk the lives and safety of others. [ 57 ] Over the past few years, the Nunavut Court of Justice has dealt with numerous tragic situations involving young people and firearms. I need only reference the comments of Sharkey, J. in R. v Elee Geetah . [10] I am aware that Mr.

Justice Sharkey’s comments in the past have prompted discussion in some communities. These discussions focused on the prospect of allowing gun owners to store their firearms in a safe, secure and readily accessible hamlet facility. Perhaps, it is time to see such discussions renewed in earnest. X. ANCILLARY ORDERS [ 58 ] I also impose several ancillary orders. [ 59 ] The cell phone and .22 calibre rifle seized by the police during the investigation are forfeited to Her Majesty The Queen. [ 60 ] Mr.

Cooper-Flaherty may not possess any firearm, crossbow, prohibited weapon, restricted weapon, ammunition, prohibited ammunition and explosive substance for ten years pursuant to Criminal Code

section 109. Mr. Cooper-Flaherty may apply to a competent authority for a license to obtain a firearm for employment or sustenance pursuant to Criminal Code

section 113. [ 61 ] Mr. Cooper-Flaherty must provide a sample of his DNA to the authorities for registration in the national DNA databank. [ 62 ] I impose a $200 Victim Fine Surcharge for each of the five convictions for a total fine of $1,000. Mr. Cooper-Flaherty must pay that fine no later than one year after his release from jail. [ 63 ] Taima.

Dated at the City of Iqaluit this 11 th day of July, 2017 ___________________ Justice P. Bychok Nunavut Court of Justice ___________________________________________________ Amendment of the Reasons for Judgment Reserved of The Honourable Mr. Justice Paul Bychok ___________________________________________________ In the frontispiece, the names of counsel have been changed from: Counsel (Crown): Doug Garson Counsel (Accused): Yoni Rahamin To: Counsel (Crown): Doug Garson Counsel (Accused): Yoni Rahamim In paragraph [9], the first sentence starting with “Defence counsel, Mr.

Yoni Rahamin,” has been changed to “Defence counsel, Mr. Yoni Rahamim”. Please replace the amended pages in your hard copy of the judgment.