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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)


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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:

1 R v Cooper-Flaherty, 2020 NUCJ 34.


2 Sentencing Submissions, filed November 12, 2020 at 2.
3

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.

3 R v Cooper-Flaherty, 2017 NUCJ 11 at paras 36-38.


4 Ibid at para 40.
4

[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 1,825 days (5 years) in jail


Bail breach 90 days in jail concurrent
30/11/20 Break and enter 30 days in jail
Damage to property 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

5 Criminal Code, RSC 1985, c C-46, section 718 [Criminal Code].


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

6 Ibid, section 718.1.


7 Ibid, section 718.2(a).
8 Ibid, section 718.2(b).
9 Ibid, section 718.2(c).
10 Ibid, section 718.2(d).
11 Ibid, section 718.2(e).
12 R v Gladue, [1999] 1 SCR 688, 133 CCC (3d) 385, R v Ipeelee, [2012] 1 SCR 433, 280 CCC

(3d) 265.
6

[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

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

Mathieu, 2008 SCC 21.


7

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.

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).
8

[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.

17 Ruby et al, supra note 15 at 1065.


18 R v Bernarde, 2018 NWTSC 27 at para 52 [Bernarde].
19 Ibid at para 53.
9

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;

20 See for example, R v O’Quinn, 2017 NLCA 10 at paras 20-21.


10

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

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