R. v. Cooper-Flaherty, 2020 NUCJ 43

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Cooper-Flaherty, 2020 NUCJ 43 Date: 20201217 Docket: 08-20-98 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Michael Cooper-Flaherty ________________________________________________________________________ Before: The Honourable Mr. Justice Paul Bychok Counsel (Crown): E. Baasch Counsel (Accused): M. Manocchio Location Heard: Iqaluit, Nunavut Date Heard: November 13 and December 14, 2020 Matters: Sentencing for offences under Criminal Code of Canada , RSC 1985, c C-46, ss. 344(1) (b), 351(2) , and 145(2) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] I convicted Michael Cooper-Flaherty after trial on October 9, 2020 of armed robbery and wearing a face mask to conceal his identity. [1] I heard sentencing submissions from counsel on November 13 and December 14, 2020. These are my reasons for sentence. II. THE FACTS [ 2 ] Around 7:20 pm on February 22, 2020 Mr. Cooper-Flaherty entered the Iqaluit downtown Quick Stop. He wore a bandana which covered his face from the tip of his nose down. He went behind the cash where he brandished a knife at the young store clerk and manager while demanding to be given money from the cash.

According to hearsay evidence, the manager handed over to Mr. Cooper- Flaherty around $2,000. Mr. Cooper-Flaherty was arrested two days later. I was not told, but I infer the stolen money was not recovered. III. THE POSITIONS OF THE PARTIES A. The Crown [ 3 ] The Crown prosecutor in her written and oral submissions said that the appropriate sentencing range is three to five years in a penitentiary. [2] B. The Defence [ 4 ] Defence Counsel has asked the Court to impose a two-year sentence followed by probation. After remand credit, Mr.

Cooper- Flaherty would serve the remainder of his sentence in a territorial jail. IV. MR. COOPER-FLAHERTY A. Mr. Cooper-Flaherty’s personal circumstances [ 5 ] Mr. Cooper-Flaherty is a 24-year-old Inuk. He had a difficult childhood. Defence Counsel did not want to upset Mr. Cooper- Flaherty by talking about his past, so she referred the Court to a previous sentencing decision which outlined his early circumstances: 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. Not surprisingly, he did not finish high school. 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.

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). [3] [ 6 ] Mr. Cooper-Flaherty’s current counsel advised that he continues to struggle with these mental health issues. He successfully completed a substance abuse program while on remand for this offence. Defence Counsel also described Mr.

Cooper-Flaherty as very intelligent. [ 7 ] I sentenced Mr. Cooper-Flaherty in 2017, and I noted that he is a very well-spoken person. At that time, I was struck by his apparent sincerity when he addressed the Court: 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. [4] Yet here we are. [ 8 ] Defence Counsel told me that Mr. Cooper-Flaherty took advantage of counselling after his release from jail in 2019 but was unable through no fault of her own to provide any details. I gave counsel an opportunity to obtain those details, and I adjourned the hearing until December 14. [ 9 ] On December 14, Defence Counsel advised that Mr. Cooper-Flaherty’s former probation officer, Chris Isner, was unable to get access to his files due to the COVID-19 lockdown.

However, it appears that Mr. Cooper-Flaherty did not in fact get counselling during his time on probation; though he did discuss various issues with Mr. Isner when he was not at sea and at work with Qikiqtaaluk Corporation. B. Mr. Cooper-Flaherty’s criminal record [ 10 ] Criminal records play an important role in the sentencing process. A repeat offender who commits a serious offence may expect to receive a stronger sentence than a first-time offender who commits a minor offence. Mr.

Cooper-Flaherty has the following criminal record: 11/07/17 Robbery x 5 Bail breach 1,825 days (5 years) in jail 90 days in jail concurrent 30/11/20 Break and enter Damage to property 30 days in jail 20 days in jail consecutive V. THE PURPOSE, OBJECTIVES, AND PRINCIPLES OF SENTENCING [ 11 ] Parliament has codified the purpose, objectives, and principles of sentencing. [ 12 ] The fundamental purpose of sentencing is to protect the public and to foster respect for our system of justice.

In the process, judges are expected to impose just sanctions in the hope of achieving the following objectives: to denounce crime and the harm it causes to victims and the community; to act as a deterrent to the offender and others; to remove the offender from society when necessary; to rehabilitate offenders and to encourage them to accept responsibility for their actions; and to have the offender make restitution to their victims and communities. [5]

[ 13 ] A sentencing judge must consider and balance several sometimes-competing principles. The Criminal Code sets out these principles in the following order. [ 14 ] The “fundamental” principle of sentencing is proportionality. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [6] [ 15 ] Sentencing judges must account for the presence of relevant aggravating or mitigating circumstances. [7] Aggravating factors work to increase the sentence.

Mitigating factors work to lessen the sentence. [ 16 ] Sentencing judges must apply the parity principle which holds that similar offenders ought to receive similar sentences for similar crimes committed in similar circumstances; [8] the principle of judicial restraint which directs that the sentence must not be unduly harsh or long; [9] and the totality principle which says the sentence must impose the least restrictive sanction which is appropriate in all the circumstances. [10] [ 17 ] Sentencing judges must also apply the following principle which pertains to all Inuit offenders: 718.2 (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [11] [ 18 ] In this context, the sentence here must account for the effects of historic and systemic colonialism and inter-generational trauma experienced by Inuit. These are the Gladue factors articulated by the Supreme Court of Canada in R v Gladue and later reinforced in R v Ipeelee . [12] [ 19 ] Sentencing is an individualised exercise.

Sentencing ranges are helpful in assisting judges to impose a principled sentence and to fulfill the parity principle, but every offender and every case is unique. [13] VI. ANALYSIS [ 20 ] The psychological effects of armed robberies go beyond their immediate victims and ripple right through our small and isolated communities. The sentence I impose must give primacy to the principles of denunciation and deterrence both general and specific to this repeat offender. [ 21 ] This repeat offender is still a young adult with most of his life ahead of him.

He will return again to the community after he completes his sentence. This sentence must, therefore, attempt to provide him with the tools and supervision to help with his rehabilitation. [ 22 ] In the context of Mr. Cooper-Flaherty’s rehabilitation two considerations figure prominently in my analysis. First, I note that this Court sentenced Mr. Cooper-Flaherty three and a half years ago for having master-minded five separate robberies in Iqaluit. Mr. Cooper- Flaherty was only 18 years old when he organised those robberies, and he had never before been in trouble with the law.

If he does not make a sincere effort this time to confront and understand his demons and change his lifestyle, the odds are great that he will reoffend. Simply sending Mr. Cooper-Flaherty to the penitentiary without post custodial supervision will fail to protect the public in the long term. [ 23 ] Second, it seems clear that this offender requires considerable ongoing supervision after he completes his sentence if he is to have a hope of rehabilitation. Parliament through the Criminal Code only permits a judge to impose post custodial probation if the jail term imposed is two years or less.

Thus, if I want to impose post-penitentiary court ordered supervision on Mr. Cooper-Flaherty, the total

sentence less remand credit must not exceed two years. [14] A. Aggravating and mitigating factors [ 24 ] There are several serious aggravating factors: 1. Mr. Cooper-Flaherty is a repeat offender; 2. He committed this robbery in one of the stores he had victimised twice previously; 3. The robbery was planned and premeditated; 4. He wore a mask to conceal his identity; 5. He carried and brandished a knife to frighten and intimidate the young staff into giving him money from the cash; and 6.

Small convenience stores and fast-food outlets like the Quick Stop are considered to be particularly vulnerable. [15] [ 25 ] There are no mitigating factors. B. Gladue principles [ 26 ] As the vast majority of Nunavummiut are Inuit, the Nunavut Court of Justice deals daily with Gladue circumstances and issues. Mr. Cooper-Flaherty’s case highlights the reality that many Inuit do not share the same advantages in life which so many Canadians take for granted. Mr.

Cooper-Flaherty is responsible for his actions, but the fact is that he has been severely impacted by systemic barriers and challenges beyond his control. [ 27 ] Jail in Canada is always imposed as a last resort. And, as I have already noted, we are obliged to consider in every case whether there is a reasonable alternative sanction other than custody. In the case of this repeat offender who revictimized a previous vulnerable convenience store and take out, the correct application of the objectives and principles of sentencing require that I emphasise denunciation and deterrence. I must separate Mr.

Cooper-Flaherty from the community. C. Sentencing guidelines in Nunavut for robbery [ 28 ] The maximum sentence for robbery in the circumstances of this case is life imprisonment. [16] There is no minimum sentence. [ 29 ] I start my analysis by referring to the following statement of the sentencing range for robbery: A sentence below two years’ incarceration is rare for robbery; however, it has been imposed in cases where the mitigating circumstances are particularly strong. The average sentence is between two to five years. [17] [ 30 ] Neither counsel referred the Court to any Nunavut case law apart from Mr.

Cooper-Flaherty’s 2017 case. Defence Counsel correctly noted that it is difficult to rely on that case for guidance. In my view, that case was unique and has no precedential value for the following reasons: Mr.

Cooper-Flaherty was then a 20-year-old first time offender who was 18 years old when he was charged; which in turn required the Court to exercise restraint and totality (five offences) and to emphasise rehabilitation along with denunciation and deterrence; and one of the offences involved a firearm which triggered the mandatory four-year minimum sentence. [ 31 ] In my own research, I did not find any other decisions of the Nunavut Court of Justice or of the Nunavut Court of Appeal dealing

with the armed robbery of a convenience store and take out. However, guidance for judges in Nunavut may be found in a recent Northwest Territories decision in R v Bernarde by Charbonneau CJ who stated: Many years ago, the Alberta Court of Appeal established a starting point of three years imprisonment for “an unsophisticated armed robbery of unprotected commercial outlets in the absence of actual physical harm to the victim and with modest or no success” R v Johnas , 1982 ABCA 331 , para 19 . This was reiterated by the same court a decade later. R v Welsh [1991] A.J.

No. 44 (Alta.C.A.) . [18] [ 32 ] Charbonneau CJ also noted that this principle is “consistent” with the sentencing practices followed in the Northwest Territories. [19] In my view, Bernarde states the appropriate principle which ought to apply to the circumstances of the present and future similar cases in Nunavut. VII. SENTENCE A. A federal penitentiary sentence (

i) Count 1: robbery [ 33 ] In all the circumstances of this case, I impose a jail term of 1,102 days; that is just over three years. Mr. Cooper-Flaherty has 248 days of available remand credit. The law requires me to give him credit for that remand time at the rate of one and a half to one which totals 372 days, and I do. Mr.

Cooper-Flaherty will serve the remaining 730 days (two years) in a federal penitentiary. (ii) Count 2: masking with intent [ 34 ] As I consider the masking to be part of a single criminal enterprise, and as an aggravating factor to the robbery, I impose a one-year jail term to be served concurrently. [20] B. Probation [ 35 ] I place Mr. Cooper-Flaherty on probation for two years following his release from federal custody on the following conditions.

He shall: a. keep the peace and be of good behaviour; b. report to the local probation office within 48 hours of his release from custody and whenever required by his probation officer to report; c. report to the court when required to do so; d. notify the court in advance of any change of address, name, or occupation; e. abstain from entering the premises of any Quick Stop or other convenience store or take out; f. remain in the jurisdiction of the court unless he obtains in advance the signed written permission of his probation officer, at which point he will notify the local R.C.M.P. detachment of his travel plans, or in event of a medical emergency; g. take any counselling or treatment as directed by his probation officer including mental health, substance abuse and elder counselling; h. abstain absolutely from the possession of any non-prescription drugs or intoxicating substances including alcohol and marijuana; i. abstain from the possession of any weapon as defined by the Criminal Code .

C. Ancillary orders [ 36 ] I impose the following ancillary, or related, orders: a. A mandatory DNA order pursuant to

section 487.051; and b. A mandatory

section 109 order prohibiting Mr. Cooper-Flaherty from possessing any firearm, crossbow, restricted weapon, ammunition, and explosives for life. [ 37 ] As I have imposed a penitentiary sentence, I waive the two victim fine surcharges. Dated at the City of Iqaluit this 17th day of December, 2020 ___________________ Justice P. Bychok Nunavut Court of Justice