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I. INTRODUCTION
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.
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
[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
(3d) 265.
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VI. ANALYSIS
[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.
13 Sentencing ranges for criminal offences are discussed by judges in their reported decisions.
This is a challenge in Nunavut because the vast majority of its decisions are given orally in court
and are rarely available for future reference.
14 See Criminal Code, supra note 5, section 731(1); see also R v Knott, 2012 SCC 42 and R v
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.
[28] The maximum sentence for robbery in the circumstances of this case
is life imprisonment.16 There is no minimum sentence.
15 See, for example, R v Chan, [2001] OJ No 2324 (Ont SCJ), cited in Clayton C. Ruby et al,
Sentencing, 9th ed, (Toronto: LexisNexis, 2017) at 1075.
16 Criminal Code, supra note 5, section 344(1)(b).
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[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:
[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
[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.
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:
C. Ancillary orders
[37] As I have imposed a penitentiary sentence, I waive the two victim fine
surcharges.
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Justice P. Bychok
Nunavut Court of Justice