Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: R. v. Alariaq, 2017 NUCJ 13

Date: 20170725
Docket: 03-14-208
Registry: Iqaluit

Crown: Her Majesty the Queen

-and-

Accused: Jamesie Alariaq

________________________________________________________________________

Before: The Honourable Mr. Justice Todd Ducharme

Counsel (Crown): Benjamin Flight

Counsel (Accused): James Morton

Location Heard: Cape Dorset, Nunavut

Date Heard: July 25, 2017
Matters: Criminal Code of Canada, RSC 1985
s. 334
s. 434

REASONS FOR JUDGMENT

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(NOTE: This document may have been edited for publication)

I. INTRODUCTION

[1] On November 4, 2016, a jury convicted Mr. Alariaq of one count of

arson and one count of theft over $5,000. In the early morning hours
of August 30, 2014, Mr. Alariaq drove his CAT loader and used it to
steal a sea can full of equipment belonging to Polar Supplies Ltd., a
rival business in Cape Dorset. He drove it to an area near the New
Lagoon, where he opened the sea can with a grinder. Mr. Alariaq then
set fire to the sea can and destroyed the contents. Mr. Alariaq and the
Crown agreed that the damages amounted to $77,140.05.

II. POSITION OF THE PARTIES

[2] Mr. Flight, on behalf of the Crown, submits that the appropriate
sentence in this case is a term of imprisonment of two years to be
followed by probation for two years. In addition to the statutory terms
of probation, the Crown asks for the following terms:

Report to your probation officer within two days after your

release from custody;

To have no contact or communication, direct or indirect with

Fred Schell, Cheryl Constantineau, Mike Constantineau or
Colin Gibson;

To perform 100 hours of community service within the first

18 months or probation;

To take counselling as directed by your probation officer.

[3] The Crown also seeks the following ancillary orders:

A DNA order under s. 487.051(3) for both convictions;

A section 109 mandatory firearms prohibition for life for

prohibited and restricted firearms and for 10 years for non-
restricted firearms;
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An order under s. 743.21(1) of the Criminal Code

prohibiting Mr. Alariaq from communicating, directly or
indirectly, with Fred Schell, Cheryl Constantineau, Mike
Constantineau or Colin Gibson during the custodial period
of the sentence.

[4] Finally, pursuant to s. 738(a) the Crown is seeking a restitution order

in the amount of $77,140.05 payable to the trustee of the bankrupt
estate of Polar Supplies Ltd.

[5] Mr. Morton, representing Mr. Alariaq, makes the submission that the
appropriate sentence in this case is restitution in full and a suspended
sentence with 240 hours of community service. Mr. Morton candidly
admits that he would have asked for a conditional sentence if one was
available, but as it is not, he is urging the court to craft a suspended
sentence with many of the same features. As for ancillary orders, Mr.
Morton is seeking an exemption under s. 113 of the Criminal Code to
the firearms ban to permit Mr. Alariaq to engage in sustenance
hunting. Mr. Morton submits that there is no need for a DNA order but
leaves that decision in the courts hands.

III. PRINCIPLES OF SENTENCING

[6] The purpose and objectives of sentencing are set out in s. 718 of the
Criminal Code. Generally speaking, the fundamental purpose of
sentencing is to foster respect for the law and to maintain a just,
peaceful and safe society. Section 718.1 of the Criminal Code
requires that the sentence be proportionate to the gravity of the
offence and the degree of responsibility of the offender.

[7] Courts attempt to achieve these purposes by imposing just penalties

that have one or more of the following objectives:

I. Denouncing unlawful conduct;

II. Deterring this offender and others from committing offences;

III. Imprisoning offenders, where necessary, to separate them from

the law-abiding members of society;

IV. Assisting in rehabilitating offenders and, in appropriate

circumstances, encouraging their treatment;
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V. Providing reparation for harm done to victims of the

community;

VI. Promoting in offenders a sense of responsibility for, and

acknowledgement of, the harm they have done to victims and
to the community.

[8] Section 718.2 of the Criminal Code also requires that courts take into
account other principles, including the following:

718.2(a)(i): that a sentence may be increased or decreased

depending upon the presence of any relevant aggravating or
mitigating circumstances relating to the offence or the offender;

718.2(b): that a sentence should be similar to those imposed on

similar offenders for similar offences committed in similar
circumstances;

718.2(c): that, where consecutive sentences are imposed, the

combined sentence should not be unduly long or harsh;

718.2(d): that an offender should not be deprived of liberty if less

restrictive sanctions may be appropriate in the circumstances; and

718.2(e): that all available sanctions other than imprisonment that

are reasonable in the circumstances should be considered for all
offenders, with particular attention to the circumstances of
aboriginal offenders.

[9] Sentencing is an individualized process, in which the trial judge has

considerable discretion in fashioning a fit sentence. The rationale
behind this approach stems from the principle of proportionality, the
fundamental principle of sentencing, which provides that a sentence
must be proportional to the gravity of the offence and the degree of
responsibility of the offender. Proportionality requires an examination
of the specific circumstances of both the offender and the offence, so
that the punishment fits the crime. As a by-product of such an
individualized approach, there will be an inevitable variation in
sentences imposed for particular crimes.
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IV. CIRCUMSTANCES OF THE OFFENDER

[10] I turn first to the circumstances of Mr. Alariaq. He does have a

criminal record. In 2005, he received a conditional discharge in
relation to an assault on his domestic partner and served six months
probation. In 2010, he was convicted of break and enter and was
sentenced to nine months of probation.

[11] Mr. Alariaq was born in Cape Dorset and moved frequently with his
family between Rankin Inlet, Nova Scotia, Iqaluit, and Cape Dorset.
He thinks of Cape Dorset as home and this is where his partner and
children, his parents and his sister reside. He operates a business in
Cape Dorset called M.J. Taxi.

[12] Mr. Alariaq has been with his common law partner, Maava Toonoo,
for 15 years. They have three children who are 13, 8 and 4 years of
age. The accused has a major role in looking after his children.
Unfortunately, both Mr. Alariaq and Ms. Toonoo have problems with
alcohol addiction.

[13] Mr. Alariaq was using crack cocaine and alcohol and in 2008 he was
spending approximately $10,000 per month on his addictions.
Eventually he was admitted to the Homewood Treatment Centre and
was able to overcome his addictions, although he has resumed using
alcohol in part due to the stress of dealing with the present charges.

[14] Mr. Alariaq has maintained a steady pattern of employment

throughout his youth and adult life; he obtained his first job after
graduating from high school and remained there from 1998 to 2001.
In 2001, he began working for the Government of Nunavut as a
Community and Government Services Trainee, and was later
appointed as a Community Inspector, a position he held until 2011. In
2010, he decided to operate his own business where he is the
President and General Manager. In 2015, Mr. Alariaq started working
for the airline Canadian North as a ticket agent.

[15] Mr. Alariaq is also a dedicated member of his community. In

particular, he volunteers with the Marine Search and Rescue, where
he works alongside and directly assists the RCMP. Along with this,
Mr. Alariaq is a local businessman who employs several members of
his community.
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[16] Mr. Alariaq has good memories of his childhood. In particular, every
spring and summer he would go out on to the land with his parents
and siblings. He was taught traditional ways of hunting, gathering and
surviving off the land. He continues to go out on the land and he
regularly brings back country food which he shares with elders, family,
friends and other community members. He has expressed an interest
in passing down Inuit knowledge and traditions to his own children as
he feels it's important for his children to know who they are and where
they come from.

[17] There are other aspects of Mr. Alariaqs upbringing that are quite
unfortunate. Mr. Alariaq is a survivor of childhood sexual abuse.
Between the ages of 7 and 12, he experienced frequent sexual abuse
by his uncle Peter Alariaq. Peter Alariaq in turn was apparently a
victim of sexual abuse by Ed Horne, a teacher at Peter Pitseolak
School.

[18] When Mr. Alariaqs father and an aunt were very young they had their
parents taken away to a Canadian medical ship because they had
tuberculosis and required treatment. They were left in the care of
relatives where they suffered frequent sexual, physical and emotional
abuse.

[19] Mr. Alariaqs father, two of his uncles and an aunt were all residential
school survivors. They were taken from home and experienced
physical abuse, forced assimilation and separation from family,
culture, values and traditions that were at the core of their identities.

[20] Mr. Alariaqs life has also been touched by suicide. His uncle Nuvulia
committed suicide in 1999. His fathers cousin, Attachie Peter, died
by a self-inflicted gunshot. Three of Maava Toonoos cousins hanged
themselves in 1998, 1999 and 2005, respectively. Another of her
cousins committed suicide in 1997.

[21] Mr. Alariaqs father was an alcoholic, and he vividly recalls witnessing
his father lose self-control, forget events, suffer blackouts and be
violent with his mother. While Mr. Alariaq did not experience any
physical or sexual abuse from his father, he experienced considerable
emotional harm from witnessing domestic violence in the home. He
was afraid of his father and concerned for the safety of his mother and
siblings. This persisted until Mr. Alariaq was approximately 10 years
of age when his mother gave his father an ultimatum to stop drinking
or be cut off from his family.
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[22] Mr. Morton has filed a number of letters in support of Mr. Alariaq on
this sentencing hearing. The letters, written by family members,
friends, work associates and community members portray Mr. Alariaq
as a successful businessman, a skilled hunter, a parent passing on
traditional ways of the Inuit to his children and a contributing member
of the community.

V. IMPACT ON MR. SCHELL

[23] I turn now to the impact of these crimes on Mr. Schell. The financial
impact of this crime was significant. In addition to the loss of
$77,140.05, Mr. Schell also spent an additional $5,280 in wages for
his office manager and her assistant to compile the report for the
insurance company. Mr. Alariaq has agreed to make restitution for
both of these amounts in full.

[24] Mr. Schell has found the whole criminal process to be very stressful
and he and his wife have had fears for their security with respect to
Mr. Alariaq. Mr. Schell has since been diagnosed with a heart-related
problem related, at least in part, to stress.

VI. LEGAL PARAMETERS

[25] Arson is a serious offence. The maximum possible penalty is 14

years. The dangers of arson were nicely summarized by Justice
Gorman in R. v. Fewer [2004] N.J. No. 433 (N.L. P.C.) at para 36:

Arson obviously causes property damage, however, the seriousness

of this offence extends well beyond any property damage that
might occur. Fire is inherently dangerous and difficult to control.
Setting fire to a building can have unintended and fatal
consequences. There are various individuals in our society that
have the unenviable task of being required to respond to fires.
They risk their lives every time they do so. Arsonists recklessly
place the lives and safety of such individuals at risk. Therefore, the
sentences imposed for this offence must reflect this factor.

[26] While this arson does not involve setting fire to a building and the sea
can was burned in a rather remote part of the road, I think the
concerns outlined by Justice Gorman apply equally here.
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[27] I am required by the Criminal Code to consider sentences imposed on

similar offenders for similar offences committed in similar
circumstances. To that end, counsel have referred me to a number of
cases.

[28] A review of all of these cases, those relied on by Mr. Flight and those
relied on by Mr. Morton, demonstrate that sentencing is a profoundly
individualized process driven by the unique facts of every offence and
the unique characteristics of every offender. I have considered all of
these cases carefully although I will not discuss them individually.

[29] Certain general principles can be gleaned from the cases, however.
Most importantly, denunciation and deterrence must be the
paramount objectives of the sentence I impose. Secondly, any
sentence for Mr. Alariaq, an Inuk, must take into account his
indigenous status in a manner consistent with the decision of the
Supreme Court of Canada in R. v. Gladue, [1999] 1 SCR 688.

VII. AGGRAVATING AND MITIGATING FACTORS

[30] I turn now to consider the aggravating and mitigating factors of this
case. First, the aggravating factors:

I. The value of the property that Mr. Alariaq stole and burned,
$77,140.05. Mr. Alariaq caused very significant damage to
the property of a competing business.

II. Mr. Alariaqs planning and deliberation. The evidence at

trial was that Mr. Alariaq observed the sea-can with a keen
interest a few days prior to the theft and arson. He knew
that the sea can was associated with Polar Supplies Ltd. I
reject Mr. Mortons submission that Mr. Alariaqs
observations were merely acts of innocent curiosity. The
planning and deliberation are also evidenced by the fact
that Mr. Alariaq drove the CAT with his lights off to avoid
detection and used a grinder to cut open the sea can.

III. Mr. Alariaqs intoxication while operating heavy

equipment. Mr. Alariaq admitted through his counsel at the
sentencing hearing that he was intoxicated at the time he
operated heavy equipment on a public road. Not only is this
another criminal offence, but there is an inherent danger in
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driving any vehicle while impaired, and it is especially

dangerous to have operated heavy equipment under the
influence of alcohol and drugs.

IV. The evidence from the surveillance footage is that Mr.

Alariaq drove the CAT loader at night, in the dark, with the
headlights off. Presumably he did this to avoid detection.
However, this made it more difficult for Mr. Alariaq to see
other road users. The surveillance footage did disclose that
there were others including motor vehicles and cyclists
on the road around the time of the theft.

V. Mr. Alariaq started a fire in a small, remote town that has

fewer resources to respond to fires.

[31] The following mitigating factors are present in this case:

I. Mr. Alariaq now accepts the verdict of the jury and is

prepared to make restitution in full. He apologized in court
yesterday and again this morning. In particular, he has
apologized to his family and made it clear that he has gone
down a bad road that he wants them to avoid. I accept that
he now regrets his involvement in these crimes and his
remorse, while late in coming, is genuine. I think this can
play an important role in his rehabilitation.

II. Mr. Alariaq is a successful businessman and has been

steadily employed for most of his adult life.

III. Mr. Alariaq is a skilled hunter and willingly shares what he

catches with elders, his family and members of the
community. He is also proud of his Inuit heritage and
culture and is actively passing that on to his children.

IV. Mr. Alariaq has contributed to the community of Cape

Dorset in a variety of other ways. He has been elected a
Hamlet Council Member and Deputy Mayor. He has
assisted the RCMP and the Coast Guard with search and
rescue activities.
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VIII. SECTION 718.2(e) OF THE CRIMINAL CODE AND THE

PRINCIPLES IN R. v. GLADUE

[32] In R. v. Gladue, [1999] 1 S.C.R. 688 at para. 75, the Supreme Court
held that:

The role of the judge who sentences an aboriginal offender is, as

for every offender, to determine a fit sentence taking into account
all the circumstances of the offence, the offender, the victims, and
the community.

[33] But Gladue also made clear that s. 718.2(e) of the Criminal Code,
which makes imprisonment a sanction of last resort for all offenders,
has a remedial purpose directed at the disproportionate incarceration
of Aboriginal offenders and requires that the sentencing determination
be informed by considerations that can favor a noncustodial
sentence or a shorter term of imprisonment including: (1) the unique
background and systemic factors which may have played a part in
bringing the particular Aboriginal offender before the court; and (2)
restorative justice procedures and sanctions that may be appropriate
for the offender because of his or her particular Aboriginal heritage or
connection.

[34] While the Courts have an obligation to review and consider the
extenuating circumstances of an Aboriginal offender, in R. v. lpeelee,
2012 SCC 13, [2012] l S.C.R. 433, the court stated that these matters
on their own do not automatically justify or inevitably lead to a
reduced sentence. In the end, it is up to the sentencing judge to
consider all of the relevant aspects in order to appropriately fix a
sentence.

[35] Where the unique background and systemic factors of the aboriginal
offender are shown to have played:

[A] significant role, it may be that imprisonment will utterly fail to

vindicate the objectives of deterrence or denunciation. In other
cases, where the impact is not as dramatic, those systemic and
background factors must nevertheless be taken into account in
shaping the appropriate penal response.
R. v. Collins, 2011 ONCA 182 (O.C.A.) at para 33.
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[36] It seems to me that the systemic and background factors affecting Mr.
Alariaq must have played a part in bringing him before the courts. He
has been the victim of childhood sexual assault and grew up in a
home where domestic violence was far too common. His father, uncle
and aunts are survivors of residential schools. He has been addicted
to crack cocaine and still struggles with alcohol abuse. His partner
and the mother of his children is addicted to alcohol and they have
both been exposed to far too many deaths by suicide of family
members.

[37] Even if the systemic and background factors did not play a part in
bringing Mr. Alariaq before the courts, the Gladue principles still
require recognition of the impact of Canadas treatment of its
Aboriginal population in shaping the appropriate sentence. The court
is required to consider how this particular offender has been affected
by those systemic factors. As the court said in Gladue at para. 81:
Sentencing must proceed with sensitivity to and understanding of the
difficulties aboriginal people have faced with both the criminal justice
system and society at large. Not only are aboriginal offenders
seriously over-represented in Canadas prison population but, as the
court in Gladue added at para. 68:

[A]boriginal offenders are, as a result of these unique systemic and

background factors, more adversely affected by incarceration and
less likely to be "rehabilitated" thereby, because the internment
milieu is often culturally inappropriate and regrettably
discrimination towards them is so often rampant in penal
institutions.

[38] I have concluded that a suspended sentence would not reflect the
seriousness of the offence, the moral blameworthiness of Mr. Alariaq,
the need for general deterrence and denunciation and the sentences
imposed in similar cases. However, the Gladue principles are still
relevant as they require consideration of the least intrusive
punishment consistent with the appropriate objectives. As the court
said in Gladue at para. 93: If there is no alternative to incarceration
the length of the term must be carefully considered.

[39] In all of the circumstances of this case, including the significant

aggravating factors, the principles of sentencing are appropriately
addressed by a sentence of 18 months imprisonment to be followed
by two years of probation.
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[40] In addition to the statutory terms, I will order the following additional
terms in the probation order:

I. Report to your probation officer within two days after your

release from custody;

II. Have no contact or communication, direct or indirect, with

Fred Schell, Cheryl Constantineau, Mike Constantineau or
Colin Gibson;

III. Perform 100 hours of community service at a rate of no less

than 8 hours per month;

IV. Take counselling as directed by your probation officer.

[41] I shall make an order under s. 743.21(1) of the Criminal Code

prohibiting Mr. Alariaq from communicating, directly or indirectly, with
Fred Schell, Cheryl Constantineau, Mike Constantineau or Colin
Gibson during the custodial period of the sentence.

[42] I shall make an order under section 487.051(1) of the Criminal Code
authorizing the taking of the number of samples of bodily substances
from Mr. Alariaq that is reasonably required for the purpose of
forensic DNA analysis.

[43] Finally, pursuant to s. 738(a) of the Criminal Code I will make a

restitution order in the amount of $77,140.05 payable to the trustee of
the bankrupt estate of Polar Supplies Ltd. Also, pursuant to s. 738(d)
of the Criminal Code, I will make a restitution order in the amount of
$5,280 payable to Fred Schell.

[44] As these offences did not involve violence against a person, I will not
make an order under section 109.

Dated at the Hamlet of Cape Dorset this 25th day of July, 2017