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Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE


Cour de justice du Nunavut

Citation: R. v. Michael 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 Rahamin

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


2

(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-Flahertys 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
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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.
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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 Rahamin, 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 clients 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
mans 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.
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[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 offenders 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

1
RSC 1985, c C-46
2
Criminal Code, section 718.2(e)
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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 groups 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.
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[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.

3
R v Gladue, [1999] SCJ No 19, [1999] 1 SCR 688 (QL)
4
R. v Mikijuk, 2017 NUCJ 02
8

[28] The Criminal Code also directs that I consider mitigating and
aggravating factors.

[29] Mitigating factors work to lessen an offenders 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.
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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-Flahertys 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.

5
Canadian Victims Bill of Rights, SC 2015, c 13, s 2
10

[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-Flahertys 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 planIn 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 Ive 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.

Ive had a very long time to think about what Ive 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 Ive 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 thats the honest

6
Report, dated March 2017 at pages 20 & 21
11

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 youve heard this many times before, but when the day comes
and Im released from here, Im 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 dont 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 Ill 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-Flahertys 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

7
Criminal Code, section 719
8
R. v Duncan, [2016] ONCA 754
12

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-Flahertys 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.

9
Report, at page 8
13

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. Canadas
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 prosecutors 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.


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[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 Sharkeys 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.

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2015 NUCJ 10