R. v. Martinez, 2021 NUCJ 16

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Martinez, 2021 NUCJ 16 Date: 20210316 Docket: 08-20-293 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Gabriel Martinez ________________________________________________________________________ Before: Madam Justice Tulloch Counsel (Crown): E. Baasch Counsel (Accused): S. Siebert Location Heard: Iqaluit, Nunavut Date Heard: March 5, 2021 Matters: Sentencing for offences under ss. 84 and 85 of the Nunavut Liquor Act , RSNWT (Nu) 1988, c L-9 REASONS FOR SENTENCE (NOTE: This document may have been edited for publication)

[ 1 ] On March 5, 2021, Mr. Martinez plead guilty to the unlawful sale of liquor and to selling liquor to a person under the age of 19 pursuant to sections 84 and 85 of the Nunavut Liquor Act . These offences are commonly known as bootlegging. [ 2 ] I accepted his pleas and convicted him of the charges. [ 3 ] Both counsel agreed that time in custody was warranted in this case for this offender. The court concurred. [ 4 ] Counsel joined together on the length of jail that was appropriate and on March 5, 2021, Mr. Martinez stepped into custody for 30 days.

He is still serving that sentence. [ 5 ] In addition, it was decided that a fine should also form part of the sentence in this case. [ 6 ] Crown and Defence disagreed substantially on the amount of that fine and the matter was adjourned to this afternoon so that I could carefully consider the able submissions of counsel on this point. [ 7 ] Crown Counsel strongly submitted that this is a case that warrants the imposition of the maximum fine available under the Act , which is $25,000.00. [ 8 ] Defence Counsel submitted that the amount of cash seized by the RCMP as proceeds of crime totalling $5,270.00, together with the 30 days in jail, was sufficient to provide the necessary denunciation and deterrence that both counsel agreed was the paramount objective for this sentencing. [ 9 ] A brief

summary of the facts as provided by the Crown and agreed to by Mr. Martinez are as follows. [ 10 ] The importation of alcohol into Nunavut is subject to a permit system. [ 11 ] Between April 1 and June 15, 2020, the accused purchased 245 sixty-ounce bottles of alcohol. [ 12 ] Those in charge of the permit system flagged the large quantity of liquor as being more than what would reasonably be used for personal consumption, and the RCMP were contacted.

Subsequently, they commenced surveillance of the accused, who drove a taxi for the city of Iqaluit. [ 13 ] On June 23, 2020, police received further information that 20 more bottles of liquor had been purchased by the accused. [ 14 ] Police surveillance on that date revealed that the accused was on duty driving taxi, and he was parked outside the Royal Bank in Iqaluit. There was one male passenger in the taxi at the time who exited the vehicle, went into the bank, and returned to the cab a short time later.

[ 15 ] The accused drove his passenger to the alleyway beside the cadet hall and stopped. Mr. Martinez exited the taxi and opened the trunk. He obtained a backpack which he brought forward to the front seat of his cab. After a couple of minutes, the accused drove his passenger to another location dropping him off and driving away. [ 16 ] The police immediately approached the accused’s male passenger, who was in possession of a sixty-ounce bottle of vodka which he admitted had been purchased for $180.00 from Mr. Martinez.

This person was only 17 years old. [ 17 ] As part of the investigation the RCMP reviewed a significant amount of information, including the fact that the accused made frequent visits to a Subaru vehicle which was parked but not driven. [ 18 ] Search warrants were obtained and executed for this vehicle and for the home where Mr. Martinez rented a room. [ 19 ] Inside the Subaru, ten bottles of liquor were seized from inside a box that also contained permit receipts. The box had the accused’s name and address on it.

The vehicle was secured and the alcohol seized. [ 20 ] The only liquor located inside the accused’s room was whiskey and rum. In addition, cash in the amount of $5,110 was also seized as proceeds of crime by the RCMP. A further amount of cash was later seized in the amount of $160.00. Both counsel agree that the cash seized by the police should be applied to the fine in this case. The total amount of cash seized was $5,270.00. [ 21 ] Inconsistent calculations were put before the court with respect to the profit that the accused would have received if he sold the bottles for $180.00 each.

In the end, both counsel agreed that taking into account the original price of the liquor, the shipping and the permits, the net profit received by the accused would have been in the neighborhood of $25,725.00. [ 22 ] There is no doubt that Mr. Martinez was running a business and benefitting substantially from the illegal sale of alcohol to anyone willing to pay his price. [ 23 ] The penalty set out under

section 114 of the Nunavut Liquor Act for the contravention of sections 84 and 85 is as follows: For the first offence, to a fine of not less than $5,000.00 and not exceeding $25,000.00 or to imprisonment for a term not exceeding one year or to both. [ 24 ] On sentencing, the Crown provided four cases to the court which I did not find very helpful. All four imposed short periods of jail for very small quantities of liquor.

None of the cases involved imposing a fine in addition to the jail sentence. [ 25 ] The Crown submitted that it is a sad but practical reality that prior to the sale of alcohol, there is no limit on the amount of liquor that can be imported into this territory by any one person. [ 26 ] As a result, large quantities of hard liquor come into Iqaluit on a regular basis and some of it, as is true in this case, is sold illegally. [ 27 ] Not only does it make its way into the hands of minors, but it also takes limited resources and money away from families. [ 28 ] The exorbitant price charged causes substantial heartbreak, impoverishment, and danger to the people of Iqaluit. [ 29 ] The proper response by the court, in the Crown’s view, is to apply the strongest deterrence available under the law. [ 30 ] Both counsel agree that the paramount objective of sentencing in this case is denunciation and deterrence.

I agree but I must also

consider other principles such as restraint and proportionality. [ 31 ] Mr. Martinez is from Cuba. He is now a permanent resident of Canada. He arrived in this country in January of 2019 and made his way to Iqaluit in September of 2019. He has been steadily employed since arriving and he sends a good portion of the money he makes to his family in Cuba. [ 32 ] When these charges were laid, he lost his job as a taxi driver but shortly thereafter found other work in Iqaluit.

He continues to be steadily employed. [ 33 ] Defence submits that the large fine proposed by the Crown would have a crushing effect on the accused. [ 34 ] Counsel’s position is that the 30 days of jail and a fine equal to the cash seized adequately satisfies the requirement for deterrence and denunciation in this case for this offender. [ 35 ] Just as is the case in every sentencing, I must carefully consider the aggravating and mitigating circumstances. [ 36 ] The most aggravating part of this sentencing is the large quantity of sixty-ounce bottles of liquor sold to anyone willing to pay the elevated price charged. [ 37 ] There are many people who fall into this category.

Bootlegging is an illegal business that thrives on supply and demand. I know that some are of the view that it is not for the court to regulate such matters. However, the Nunavut Liquor Act is clear about the seriousness of these types of offences. [ 38 ] I believe this is a recognition that much of the work we do in the criminal courts involves individuals who have consumed large amounts of alcohol. [ 39 ] Bootlegging is a serious matter that causes a lot of suffering on many fronts in this territory.

As I have already indicated, the elevated cost takes much needed money away from families, particularly in cases where one or more members of the family cannot live without it. [ 40 ] We know that alcoholism is a disease and not a choice.

Bootleggers such as the accused are simply preying on vulnerable victims who have a need that they cannot control. [ 41 ] If we add to this the reality that this territory still has no residential treatment program for substance abuse, we understand better the tremendous damage that can result from the actions of the accused. [ 42 ] It is important to keep in mind that the accused made a considerable amount of money during this enterprise. [ 43 ] The fact that the liquor was provided at a very high price to at least one underage youth who was prohibited by law from consuming any alcohol due to his age is also highly aggravating.

It constitutes a serious and legitimate concern. [ 44 ] As a taxi driver, the accused had a substantially increased ability to sell liquor to those who he knew were in the market. In fact, this may be the very reason why the Nunavut Liquor Act singles out this type of employment, and the reason why anyone convicted of these offences is prohibited from driving a taxi for a period of five years. The fact that the accused lost his employment as a taxi driver is, in my view, warranted in the circumstances.

[ 45 ] The accused comes before the court with no criminal record. [ 46 ] The illegal sale of alcohol on the part of the accused was for a relatively short period of time --- three months. [ 47 ] Mr. Martinez acquired the bottles of liquor legally through the permit system and the Government of Nunavut kept issuing the permits even after the investigation by the RCMP was underway. [ 48 ] Both counsel submitted that the illegal sale of alcohol and the effects found in this case strongly suggest that the permit system is broken.

The suggestion was that a limit to the amount of liquor that can be imported by any one person should be considered. [ 49 ] Defence argued further that the court process, in and of itself, is a strong deterrence to this accused for these offences. [ 50 ] It was submitted that in these cases the RCMP issue a press release when there has been an arrest for bootlegging. This is a very public denunciation that we do not see for other types of cases that come before the court. The accused’s name has already appeared in the media. [ 51 ] Mr.

Martinez has pled guilty at an early opportunity and some credit needs to be given for the fact that he has admitted full responsibility for his actions. [ 52 ] When asked if he had anything he wished to say to the court before the sentence was passed, he responded as follows: “I feel really, really ashamed to be in the news and the court right now.

I really regret what I did and am really, really sorry.” [ 53 ] In conclusion, I find that after balancing all the aggravating and mitigating circumstances and after applying all of the important objectives of sentencing, particularly the need for denunciation and deterrence, an appropriate sentence is as follows. [ 54 ] For this accused in these particular circumstances I am adding the following fine to the 30 day jail sentence already imposed. [ 55 ] The total fine will be in the amount of $10,000.00.

The $5,270.00 seized by the police during the investigation will be applied towards payment of that fine, leaving a balance owing of $4,730.00. I will give the accused 18 months in which to pay that fine. [ 56 ] In these circumstances I will not impose a victim of crime surcharge. [ 57 ] I am also ordering that the liquor that was seized be forfeited. The other items seized, including the accused’s tablet and his camera, are to be returned to him forthwith. [ 58 ] Mr.

Martinez, I sincerely hope that you have learned your lesson, but more importantly that you have a much better understanding of how wrong your actions were. [ 59 ] It is impossible to know or to quantify the amount of damage caused by bootlegging in Nunavut but the certainty is that it is substantial. I accept your remorse and hope that I never see you in court again. Dated at the City of Iqaluit this 16th day of March, 2021

___________________ Justice B. Tulloch Nunavut Court of Justice