Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: R. v. Ainalik, 2017 NUCJ 16

Date: 20170905
Docket: 03-15-230
Registry: Iqaluit

Crown: Her Majesty the Queen

-and-

Accused: Elee Ainalik

________________________________________________________________________

Before: The Honourable Mr. Justice Neil Sharkey

Counsel (Crown): Sara Gardezi

Counsel (Accused): Jean Tremblay

Location Heard: Cape Dorset, Nunavut

Date Heard: August 24, 2017
Matters: Sentencing related to
Criminal Code, RSC 1985, c C-46, s 434

REASONS FOR JUDGMENT

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

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Table of Contents

REASONS FOR JUDGMENT............................................................... 1

I. PROCEDURAL BACKGROUND.............................................................. 3
II. THE FACTS OF THE OFFENCE ............................................................ 4
III. MS. AINALIKS PERSONAL CIRCUMSTANCES .................................. 7
IV. THE POSITION OF THE PARTIES (CROWN AND DEFENCE) ......... 10
A. Crown ................................................................................................ 10
B. Defence ............................................................................................. 11
V. SOME CASE AUTHORITIES INVOLVING ARSON ............................. 13
VI. ANALYSIS ........................................................................................... 16
VII. CONCLUSION .................................................................................... 22
 3

I. PROCEDURAL BACKGROUND

[1] Elee Ainalik is charged with arson. She pleaded guilty and is before
me today to be sentenced. She is a single mother with two children
two years old, and a seven months old respectively. She is also, I am
told, now some two months pregnant.

[2] Ms. Ainalik was originally charged with the most serious of the several
arson-related offences under section 433 of the Criminal Code, RSC,
1985, c C-46, which carries a maximum penalty of life imprisonment.
She eventually pleaded guilty, however, to another (or lesser) arson-
related offence under section 434 of the Criminal Code. This section
makes it an offence for a person to intentionally or recklessly cause
damage by fire to property which is not wholly owned by the offender
and the maximum penalty under this section (section 434) is
imprisonment for 14 years.

[3] The incident which gave rise to the offence occurred some time ago,
on 7 December, 2015, in Cape Dorset. Ms. Ainalik entered her guilty
plea in June 2017 and her sentencing hearing was adjourned. I
presided at the sentencing hearing last week, on 24 August, 2017 in
Cape Dorset. After hearing the arguments advanced by Crown and
Defence Counsel, I adjourned to consider the proper sentence to be
imposed and I remanded Ms. Ainalik into custody until today, 29
August, 2017.

[4] As of today, Ms. Ainalik has spent seven days in custody on remand.
At an enhanced credit ration of 1.5 to one this would be the equivalent
of 10 days served in custody.

[5] I would note that while Ms. Ainalik did not enter her guilty plea until
over a year after the offence, it is not in dispute that her Counsel had
informed the Crown from a very early stage in the proceedings of Ms.
Ainaliks intention to resolve the case by way of a guilty plea.

[6] In turn, the Crown agreed to allow Ms. Ainalik time to make
rehabilitative efforts which might impact her eventual sentence, to
give birth to her youngest daughter and to attend in Ottawa for the
childs health issues. Accordingly, the delay in entering the plea is not
materialit is clear that Ms. Ainalik has accepted responsibility for
what she has done at an early stage in the proceedings.
 4

II. THE FACTS OF THE OFFENCE

[7] On 7 December, 2015, the accused, Ms. Ainalik, set fire to and
destroyed her own public housing unit in Cape Dorset. She was the
only person in the residence at the time. The apartment itself, unit
3015, was the end unit in a four-plex. Luckily, the other three units in
the four-plex escaped any damage, and the occupants were only
displaced temporarily as a precautionary measure.

[8] Unit 3015 was actually leased by the accuseds sister Aija Ainalik. It
was, however, also home for the accused, two more of the accuseds
siblings, as well as several children.

[9] By coincidence, this firewhich rendered unit 3015 uninhabitable

occurred only a few months after a more notorious fire in Cape
Dorset. In September of 2015, several youths had broken into the
Sam Pudlat school and, once inside, engaged in various acts of
criminal mischief as a result of which the building itself caught fire and
burned to the ground.

[10] Ms. Ainalik was drunk, depressed, and in a state of despair on 7

December, 2015. Several times she expressed suicidal thoughts.

[11] She had quite a bit to drink that day. Her friend Leetia had just
received a liquor order and invited Ms. Ainalik to come over to drink
with her. The two of them started drinking around 4 or 5 p.m. and kept
drinking until around 10 p.m., by which time they were both highly
intoxicated.

[12] At around 10 p.m. they started to walk back to Ms. Ainaliks unit 3015.
It was around this time as well that Ms. Ainalik started expressing
suicidal thoughts to Leetia. As they walked along the street, they tried
to flag down a passing taxi, which refused to stop. Ms. Ainalik told
Leetia that she was tired of living and actually made an attempt to
jump in front of the taxi. Ms. Ainalik made several more of these
suicidal comments to Leetia throughout the course of the evening.
Two or three times, Ms. Ainalik also asked Leetia if she wanted to
watch Ms. Ainalik burn down the house.

[13] Ms. Ainalik and Leetia eventually made their way to unit 3015.
Nobody was home when they got there and they stayed only briefly
before leaving the house. Once outside, Ms. Ainalik apparently got
into a fight with somebody on the street; then she and Leetia
 5

continued to just wander around, drunk. A sober passerby named

Jeffrey decided to give them a ride on his Honda four-wheeler. He
drove Leetia home first and then took Ms. Ainalik home to unit 3015.

[14] Jeffrey came into unit 3015 with Ms. Ainalik. They were the only
people present in the house. This would be roughly sometime after 10
p.m. Ms. Ainalik was upset and made threats that she was going to
burn the house down because she was sad that she did not have a
family like he, Jeffrey, had a family.

[15] She told Jeffrey that she was going to burn the house down with gas
or camp fuel. Jeffrey stayed around for a whilehe helped clean up
the apartment and talked a bit more with Ms. Ainalik. He did not,
however, see any gas or camp fuel in the house. Eventually, Jeffrey
left Ms. Ainalik alone in the residence.

[16] Jeffrey made his was to another house where he found Ms. Ainaliks
brother. He told the brother that Ms. Ainalik was drunk and at unit
3015. Jeffrey apparently, however, never told the brother about any of
the threats that Ms. Ainalik had made about burning down the house.

[17] Shortly before 11 p.m., the RCMP got a call to respond to a fire at unit
3015. The first thing they saw was smoke billowing from an upstairs
bedroom window and a man on the porch holding onto Ms. Ainalik in
an attempt to prevent her from entering the house.

[18] The Cape Dorset Volunteer Fire Department was on the scene as
well. A large crowd was gathering and the police had trouble getting
people to stand back so that the fire department could get into the unit
to suppress the fire.

[19] Apparently, even before the fire department arrived, some of Ms.
Ainaliks neighbours (who had taken training in fighting fires) entered
the unit with extinguishers in an attempt stop the fire from spreading
to the other units.

[20] Meanwhile, out on the street Ms. Ainalik was creating quite a bit of
havoc. She was angry and yelling that the police needed to arrest
whoever started the fire. She was also, of course, still quite drunk and
the police found it necessary to actually arrest her for causing a
disturbance. She was placed in the police truck and transported to
the detachment where she spent the night in cells.
 6

[21] Eventually, the fire fighters put out the fire before it could do any
damage to the adjoining units. The residents of those units were,
however, forced to leave their homes and stand out in the -25
degrees Celsius cold while they awaited clearance to go back inside.

[22] After the fire had been put out, the Fire Chief identified two sources of
origin for the fire: one was a mattress in an upstairs bedroom, and
another was the drapes or curtains in the main floor living room. Ms.
Ainalik, despite her state of drunkenness and lack of any specific
memory, accepts that the fire was started at these two locations.

[23] There was, however, no accelerant used to start the fire. The fact no
accelerant was useddespite Ms. Ainaliks threats to, for example,
use camp fuelis significant because the use of an accelerant greatly
increases both the intensity of the fire in its initial stages and the
speed at which the fire can spread. And again, the volunteer fire
fighters were able to suppress the blaze before it had spread
sufficiently to endanger the neighbouring units.

[24] The unit 3015 itself, as I noted earlier, was damaged beyond repair
and will never be habitable. I had opportunity to view the photographs
of the damage to the unit. Suffice it to say that these pictures are
worth a million words. The damage is most extensive upstairs. The
bedroom where the fire started is hardly recognizable. I am told as
well that the insured value of the unit was approximately $1 million.

[25] It was not only Ms. Ainalik and her children that were rendered
homeless as a result of the fire. Ms. Ainaliks siblings (as well as their
children) were left without a home. In particular, I am told that one of
Ms. Ainaliks sisters had no option but to eventually move her family
into a tent.

[26] Ms. Ainalik remained in custody the next day, 8 December, 2015, as
the police continued their investigation. The police had Ms. Ainalik
assessed, however, by the local mental health nurse before
attempting to question her about the fire. She was also given an
opportunity to speak with legal counsel, which she did.

[27] The police then questioned Ms. Ainalik. She admitted she started the
fire, but she was also upset and expressed surprise and disbelief that
she had done so, insisting that she was not the kind of person who
would do such a thing.
 7

[28] Ms. Ainalik was also released on bail on 8 December, 2015. The
conditions of her bail were essentially non-restrictive in nature,
requiring her only to behave herself and abstain from alcohol. And
Ms. Ainalik remained faithful to the terms of her bail throughout the
long court process which is just now ending.

III. MS. AINALIKS PERSONAL CIRCUMSTANCES

[29] Defence Counsel has provided me with extensive written

submissions, which I have considered. This material included a
comprehensive and detailed account of Ms. Ainaliks personal and
family history.

[30] I would note that in these written materialsand in particular

respecting Ms. Ainaliks backgroundshe is referred to not as Elee,
but rather as Ani. I am told by Counsel that Elee is actually Ms.
Ainaliks middle name and that she prefers to be called (and goes by)
her Christian first name, Ani.

[31] Ms. Ainalik is 26 years old and has no prior criminal record. She is a
single mother with two young daughters, Makayla (two years old), and
Alaina (seven months old). Ms. Ainalik is not working in the wage
economy. She is a full-time caregiver for her two daughters and relies
financially on income support (social assistance) to support herself
and her girls.

[32] Ms. Ainalik gave birth to her first child, a boy, Adamie, some five
years ago, when she was 21 years old. Adamie, however, passed
away from meningitis when he was only five months old. He is buried
in Cape Dorset and Ms. Ainalik visits his grave regularly.

[33] Ms. Ainaliks mother was a victim of domestic abuse and when Ms.
Ainalik was a baby, the local nursing station in Cape Dorset had
concerns that Ms. Ainalik was not being properly nourished. By the
time she was five years old, Social Services had concerns that Ms.
Ainalik was being left unsupervised and so she was placed in a foster
care supervised setting.

[34] Eventually, she was returned to her parents, but concerns of abuse by
her father materialized soon afterwards as Ms. Ainalik would show up
for school with injuries, which she said her father had inflicted on her.
 8

[35] Ms. Ainaliks parents separated when she was in her late teens. For a
short time afterwards, Ms. Ainalik and three of her sisters went to
Quebec to live with their father. This placement did not; however, last
long as Ms. Ainalik was physically and sexually abused by her father.

[36] Ms. Ainalik returned to Cape Dorset and took up residence with her
grandmother Alika for a while, before moving back to Quebec to live
with her uncle Adamie. These were both good places for Ms. Ainalik
to live and she was well cared for.

[37] Ms. Ainalik only returned to Cape Dorset three or four years ago, but
shortly afterwards both her grandmother Alika and her uncle Adamie
passed away.

[38] Ms. Ainalik struggled in school and completed grade 10 only partially.
I am told that she has made efforts over the years to obtain
employment, but has been unsuccessful.

[39] For the last two years or so, Ms. Ainalik has been preoccupied with
her two girls, both of whom have experienced serious medical issues.
This has required Ms. Ainalik to accompany them to Ottawa.

[40] In 2015, while she was caring for her oldest daughter, Makayla, in
Ottawa, Ms. Ainalik was the victim of a sexual assault. She also
struggled with alcohol while in Ottawa to the point where she returned
to Cape Dorset and left her sister Aija (who lived in Ottawa) to care for
Makayla.

[41] Eventually, however, Aija returned to Cape Dorset and Makayla was
taken into foster care by Ontario Childrens Aid in August of 2015.
Makayla remained in foster care in Ottawa until she was brought to
foster care in Cape Dorset in February of 2016.

[42] It is important to note that months between August 2015 and

December 2015, when Ms. Ainalik committed the offence before the
Court, were particularly stressful for the accused.

[43] Makayla was in foster care in Ottawa during this period and Ms.
Ainalik expressed frustration to Social Services about not being able
to see her child. For example, on 24 November, just a couple of
weeks before she committed the offence, Ms. Ainalik told her case
worker: Its so hard, I give up, I cant handle it.
 9

[44] Despite this, however, after she was released on bail in December of
2015, Ms. Ainalik worked on her own personal issues to the point
where, with the assistance and support of Social Services, Makayla
was returned to Ms. Ainaliks full-time care in August 2016.

[45] Ms. Ainaliks second daughter, Alaina, was born more than seven
months ago, in January of 2017. Ms. Ainalik had to accompany Alaina
to Ottawa on two occasions in 2017 for medical treatments: once in
February when a drunken relative assaulted the child, and again in
July when the child contracted pneumonia while spending time with
Ms. Ainaliks sister in a tent.

[46] For a short time in 2017, Ms. Ainalik was in a relationship with
Alainas father and had moved into his house, but this ended and they
separated when the father became abusive.

[47] Ms. Ainalik is now some two months pregnant. I am told that because
of the high-risk nature of Ms. Ainaliks previous pregnancy, this
pregnancy will have to be closely monitored.

[48] I am told that Ms. Ainalik has strong supports in Cape Dorset, in
particular the support of Makaylas previous foster parents. I have
also been provided with a letter of support signed by several
community members and friends of Ms. Ainaliks family. This letter
[EX D-1] is written by the local legal aid court worker. It outlines some
of the struggles that Ms. Ainaliks family has endured over the years.

[49] Ms. Ainalik has maintained a good relationship with Social Services
and does not hesitate to reach out to the local social worker to
discuss personal issues or difficulties. Ms. Ainalik has also, I am told,
started counselling with an elder in Cape Dorset, and has expressed
satisfaction with this arrangement.

[50] Ms. Ainalik does not currently have a fixed address in Cape Dorset.
She is on the waiting list for public housing. This situation is, of
course, Ms. Ainaliks own doing. But in the meantime, before she
acquires another unit, she remains homeless and lives (along with her
children) with various relatives.
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IV. THE POSITION OF THE PARTIES (CROWN AND DEFENCE)

A. Crown

[51] The Crown urges the Court to impose a period of incarceration of

between six to 12 months followed by a period of probation.

[52] The Crown comes to this position after considering the accuseds
guilty plea, the fact that she has no record, and her personal
circumstances. The Crown indicates, and I accept, that this position is
an attenuated one after having considered these factors, since
originally the Crowns positon was that a jail sentence in the high
territorial range would be the appropriate sentence. The Crown
suggests that the application of section 718.2(e) of the Criminal Code
in this case should only operate to reduce the amount of custody
imposed, but not to allow a completely restorative sentence of
probation through the imposition of a suspended sentence.

[53] The Crown says that the principle of proportionality is satisfied only
through a jail term. Ms. Ainalik has committed a serious crime. While
her moral blameworthiness in committing this offence is not at the
higher end of the scale, the Crown says this case is far from a
spontaneous act of drunkenness. Any suicidal motivation she had for
starting the fire should be accounted for, once again, only to reduce
the amount of time she ought to spend in jail.

[54] The Crown argues that the penalty imposed must reflect the severity
of the crime in terms of its potential for harm, as well as its impact on
the community.

[55] The Crown notes that when a person either intentionally or recklessly
sets fire to their own unit inside a four-plex, it is reasonably
foreseeable that this might endanger the lives, the health, and
certainly the property of the residents of the adjoining units. The fact
that, by chance, this potential is not realized is not a mitigating
circumstance.

[56] Further, notes the Crown, the perpetrator of arson puts the lives and
health of fire fighters in jeopardy, particularly, as here, where the
potential of this fire to spread was real but for the efforts of the
volunteer fire fighters.
 11

[57] Finally, says the Crown, another aggravating factor is that the impact
of this crime upon the community is quite severe. In Nunavut, housing
is at a premium. Destruction of a unit does not just deprive a person
of a home; it deprives the community of a housing unit.

[58] The Crowns position is that the sentencing objectives of deterrence

and denunciation would not be satisfied by a community-based
sentence of probation. Such a sentence would give undue emphasis
to the sentencing objective of rehabilitation, almost to the exclusion of
other sentencing objectives.

[59] The case authorities support the proposition that arson is not a
victimless crime and that a jail sentence is the norm rather than the
exception. Accordingly, says the Crown, in terms of promoting parity
in sentencing, a jail sentence is warranted in this case.

[60] In particular, the Crown distinguishes the case of R v Eks (28

September 2012), Kingston (OCJ) [Eks], upon which the Defence
relies heavily, in terms of parity in sentencing [Defence Submissions
on Sentence, at 9].

[61] In Eks, the court imposed a suspended sentence with three years of
probation. The Crown notes, however, that the fire involved was quite
minor and that the accused, Ms. Eks, unlike Ms. Ainalik, had actually
spent some eight months of her bail under virtual house arrest.

B. Defence

[62] The Defence argues that the appropriate sentence in this case is a
suspended sentence with a period of probation of between two to
three years.

[63] The Defence points to a number of factors which should mitigate the
sentence, namely that: Ms. Ainalik is a relatively young first-time
offender; by pleading guilty she has demonstrated true remorse to her
community for her actions; and she has demonstrated significant
rehabilitation in the 20 months since commission of the offence by
giving up alcohol, regaining custody of her oldest daughter, and
working positively with social services and an elder in the community
to maintain this new lifestyle.
 12

[64] The Defence says that Ms. Ainalik committed this offence during a
period of desperation and intoxication that was out of character for
her.

[65] In particular, Counsel notes that Ms. Ainaliks significant distress on

the night in question is apparent from her comments about being
abandoned by her mother and about not having any family and
wanting to die. The Defence references the Alberta case of R v
Okimaw, 2016 ABCA 246 at para 55, 340 CCC (3d) 225, for the
proposition that a life of such hardship will be braided into the
thinking process of any individual from a young age and has an
important impact on moral blameworthiness.

[66] The Defence says Ms. Ainalik committed this offence as a suicide
attempt and that accordinglywithin the context of proportionalityher
moral blameworthiness is significantly attenuated by her level of
intoxication and emotional distress at the time. This should, the
Defence submits, impact the type of penalty she receives.

[67] In dealing with a relatively young aboriginal first-time offender,

according to the Defence, the Court must be guided by the common
law principle of restraint as well as the application of the remedial
provisions of section 718.2(e) of the Criminal Code. In this case, the
Defence says, these two principles should operate to allow a
suspended sentence as the appropriate disposition.

[68] The Court is urged to consider parity in the sentencing process by

looking at other arson cases involving first-time offenders. In this
regard, the Defence relies upon the case of Eks, where a sentence
with three years of probation was imposed.

[69] The Defence argues that the sentencing objectives of denunciation

and deterrence can be met without incarcerating Ms. Ainalik. In this
regard, the Defence places reliance on two cases, one from Ontario
and the other from Yukon.

[70] In the Ontario case of R v Kutsukake [2006] OJ No 3771 at para 6,

213 CCC (3d) 80 (ONCA) [Kutsukake], the accused was pulling her
friend on roller blades behind a car. The friend fell under the car and
was killed. On appeal, a 12-month jail sentence was set aside and
substituted with an 18-month conditional sentence and two years of
probation. In substituting the sentence, the Court noted that the
offenders community service should be in the form of speaking at
 13

schools about the dangers of her conduct.

[71] The Defence suggests that Kutsukake stands for the proposition that
the Court found that general deterrence can often be better served by
alternatives to incarceration (in this case, by having the accused
share her experience with others likely to engage in the same
behaviour).

[72] In the Yukon case of R v Maynard, 2016 YKTC 51, 2016

CarswellYukon 131, a suspended sentence was imposed on an
aboriginal offender for the offence of trafficking in cocaine. Defence
Counsel suggests that the Yukon Territorial Court endorsed the
pronouncement from the British Columbia Court of Appeal that a
suspended sentence can have a deterring as well as a denunciatory
effect.

[73] The Defence position is anchored, so to speak, on what the Defence

considers Ms. Ainaliks low level of moral blameworthiness at the time
she committed the offence.

[74] In the concluding portion of the written submission, the Defence

maintains that Ms. Ainaliks moral culpability is not one that warrants
a highly punitive denunciatory deterrent sentence that would be
crushing, with the effect of removing her young daughters from her
care undoing the progress she has made since December 2015. And
further, the Defence states, on the continuum of arson offences, Ms.
Ainaliks level of moral blameworthiness falls at the low end of the
scale. In the circumstances, a fit sentence for Ms. Ainalik is a lengthy
period of probation [Defence Submissions on Sentence, at 13].

V. SOME CASE AUTHORITIES INVOLVING ARSON

[75] Both Counsel have provided me with some case precedents involving
arson-related offences from other jurisdictions. These authorities are
useful in the sense that they are a snapshot (so to speak) of the range
of sentences imposed. I will review them briefly, with a concluding
observation.

[76] In the Alberta case of R v Yellowknee, 2017 ABCA 60, 346 CCC (3d)
22, the Court of Appeal upheld a 12-month period of imprisonment
(followed by a 12-month period of probation). The accused, an
aboriginal man, pleaded guilty to arson (section 434 of the Criminal
 14

Code), mischief, and breach of his bail conditions. He had set fire to a
derelict trailer in which he was living with his spouse. He was alone in
the trailer and drunk. He had been texting his spouse to come and
fetch her belongings. The trailer was destroyed, as was some
property belonging to a third party. It is not clear from the judgment
whether the accused had any criminal record, but there were
nonetheless compelling Gladue factors before the original sentencing
judge. The trailer itself belonged to the community and the sentencing
judge had rejected the accuseds plea for an intermittent sentence of
less than 90 days.

[77] In the Ontario case of R v Pidgeon, 2016 ONCJ 334, [2016] OJ No

3010, the Provincial Court imposed a five-month jail period (followed
by two-years of probation). The female accused with no criminal
record was found guilty of arson (section 434 of the Criminal Code)
after a lengthy trial. She had set fire to her own home and had
attempted to make it look like the fire started accidentally. She lived
alone in the house and was alone when she started the fire, which
was discovered within minutes, when neighbours saw smoke. The
house before the fire was in such a state of disrepair that it was
almost uninhabitable and a positive pre-sentence report was before
the Court. Nonetheless, a jail term was imposed.

[78] In another Ontario case, R v Levere, 2010 CarswellOnt 10902, 97

WCB (2d) 47 [Levere], affd 2011 ONCA 576, 2011 CarswellOnt 9078,
the male accused, a first offender, had pleaded guilty to a charge of
arson. He was sentenced to imprisonment for 20 months in his
community under a Conditional Sentence Order (followed by three
years of probation, including 180 hours of community service work).
The accused had set fire to his own home by using a time release
incendiary mechanism, in an attempt to make it appear that the fire
was electrical in origin. There was no one in the residence when the
fire department arrived. It appears the fire was quite minor and
basically had burned itself out due to lack of ventilation. There was
also considerable evidence before the sentencing judge about the
accuseds mental state at the time the fire was committedin
particular as to whether he had actually intended to burn himself to
death [Levere, at para 82].

[79] In another Alberta case, R v Sharpe, 2008 ABPC 100, 2008

CarswellAlta 509, the 52 year-old female accused, a first-time
offender, pleaded guilty to a charge of arson causing bodily harm.
She was sentenced to imprisonment for 20 months under a
 15

conditional sentence order (followed by three years of probation).

While intoxicated, she had used a lighter to set fire to a mattress in
the same room where her common-law spouse, the victim, was
passed out. The fire quickly got out of control and the victim had to
jump out a window to safety. He suffered severe and lasing injuries.
There was also considerable damage done to the home before the
fire department could put out the fire. The accused had spent 53 days
in custody on remand and came before the Court with a positive pre-
sentence report which recommended a community-based sentence.
She also received a positive psychiatric assessment.

[80] The only case authority provided to me where the accused was
placed on a suspended sentence of probation is the Ontario case of
Eks. In Eks, the accused was a 62-year-old woman who had pleaded
guilty to mischief as well as attempted arson endangering life. She
received a three-year suspended sentence with terms which included
abstention from alcohol, counselling, and 120 hours of community
service work. Ms. Eks had a dispute with a neighbour and poured
gasoline around the neighbours home (the foundation of the house,
the lawn, and the deck). She lit the gas on fire while the family inside
was asleep, but the fire went out on its own.

[81] An important aspect of the sentence, however, was that the accused,
Ms. Eks, had actually spent the first eight months of her release on
bail under house arrest. This factored in greatly into the ultimate
sentence imposed, as the sentencing judge said these eight months
were, tantamount, in my view, to a conditional sentence [Eks, at 28-
29].

[82] Respecting the case authorities filed, it would appear that

imprisonment is the norm or rule, rather than the exception, as
punishment for the crime of arson. And while two of the case
authorities support a community-based disposition in the form of a
conditional sentence, a conditional sentence is simply a different form
of imprisonment.

[83] It is also common ground in this case that a period of incarceration in

the community under a supervised Conditional Sentence Order is not
available as a sentencing option for Ms. Ainalik (as a result of the
Criminal Code amendments which were made prior to the
commission of her offence).
 16

VI. ANALYSIS

[84] I approach the appropriate sentence in Ms. Ainaliks case, as in all

cases, within an analytical framework which deals first with the
fundamental principle of proportionality as set out in section 718.1 of
the Criminal Code.

[85] This provision says that the sentence imposed must be proportionate
to the gravity of the offence and the degree of responsibility of the
offender.

[86] The punishment must fit the crime that Ms. Ainalik has committed. It
must also fit and reflect Ms. Ainaliks moral culpability at the time she
committed the crime.

[87] I must then consider and apply the codified sentencing objectives of
general and specific deterrence of crime, denunciation of crime, as
well as assistance in the individual rehabilitation of the offender.

[88] I must also consider whether, in Ms. Ainaliks case, any sentencing
objectives should be applied as paramount in arriving at a fit
sentence.

[89] In doing so, I must examine the aggravating and mitigating

circumstances in the casethat is, what factors favour a more severe
penalty, and what factors favour a less severe penalty.

[90] I must also be mindful of Ms. Ainaliks status as an aboriginal

offender. Section 718.2(e) of the Criminal Code requires that: 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.

[91] Section 718.2(e) of the Criminal Code has been interpreted with trial
courts given guidance in its application by our Supreme Court in R v
Gladue [1999] 1 SCR 688, 171 DLR (4th) 385 [Gladue], and R v
Ipeelee, 2012 SCC 13, [2012] 1 SCR 433 [Ipeelee]. In this regard,
even if I conclude that a suspended sentence in Ms. Ainaliks case is
not reasonable in the circumstances, I must still exercise restraint
when imposing any jail time.
 17

[92] At the end of the day I must attempt to craft a sentence which
satisfies the fundamental principal of proportionality as well as the
various objectives of sentencing as set out in the Criminal Code.

[93] Practically, however, the sentence which I impose upon Ms. Ainalik
must be one which, in my view, best promotes safe communities and
a safe Nunavut. It must also be a sentence which maintains the
confidence of the community in the administration of justice.

[94] And while the principle of parity in sentencing is an important one,

attempting to achieve sentence uniformity is often a difficult and
illusionary task. Even according to our Supreme Court in R v M(CA)
[1996] 1 SCR 500 at para 92, 1996 CanLII 230 (SCC), parity must
take a back seat to an individualized approach in sentencing an
offender.

[95] In Nunavut, there is a strong and well settled juridical tradition to take
this individualized approach to the appropriate sentence in each
casenot just in terms of what is the most effective sentence for the
offender, but also what sentence is appropriate considering the needs
and current conditions of the community where the crime occurred.

[96] Indeed, M(CA) has made it clear that sentences across the country
may be expected to vary to some degree to reflect local values and
needs.

[97] Respecting the fundamental principle of proportionality as it applies in

Ms. Ainaliks case, I would say that while her offence is a property
crime, the gravity of her crime is severe. It is an offence punishable by
a maximum penalty of 14 years imprisonment. The facts of the crime
are also severe in that the property involved, unit 3015, was
destroyed.

[98] In terms of Ms. Ainaliks degree of responsibility at the time she

committed the crime, I must examine the circumstances under which
she committed the crime, not the crime itself.

[99] Clearly, as Defence Counsel suggests, Ms. Ainalik was under severe
distress at the time she lit the fire. I have no reason to doubt that her
motive to start this fire was to go up in flames herself.

[100] But I do not agree that this was nothing more than an unsuccessful
suicide attempt, the kind of thing which would normally attract more
 18

sympathy than condemnation from right-thinking members of the

public.

[101] In my view, Ms. Ainalik was well aware, despite her intoxicated state,
that setting fire to her house would not just be dangerous to herself,
but to others in the neighbouring units as well. Particularly in Cape
Dorset, people are well aware of the devastation and potential danger
of fire.

[102] Knowing of this inherent danger, Ms. Ainalik talked with Leetia about
her intentions to light up the house earlier in the evening; she told
Jeffrey she was going to use camp fuel to start the fire; and then she
had the presence of mind, despite her drunken state, to start the fire
in two separate locations in the house.

[103] In this latter regard, I pause to note that I do not agree with the
statement contained in the Defence written submission that no one
knows what happened inside House 3015 when Ms. Ainalik, in a
statue of despair and threatening suicide, was left alone [Defence
Submissions on Sentence, at 2, para 8].

[104] To the contrary, we do know what happened: the facts of the offence
were read into the record by the Crown Attorney in open Court on 24
August, 2017. As part of the narrative, the Crown stated that the Fire
Chief identified two locations where the fire had started. At the
conclusion of the Crowns narrative I asked Defence Counsel if the
facts were admitted. In response, Defence Counsel categorically
agreed that the facts as read by the Crown were admitted (subject to
her own clarification of what Defence Counsel thought Ms. Ainalik had
said to the police) [Sentencing transcript, at 23, ll, 20-21].

[105] Accordingly, we do know what happened when Ms. Ainalik was

alone in the house: she started the fire, either recklessly or
intentionally (indeed, by pleading guilty she accepts this fact); and,
further, she started the fire, as the Fire Chief concluded, in both the
upstairs bedroom and the downstairs living room.

[106] It is not the fact that Ms. Ainalik started the fire in two locations which
is important. It is the fact that she started the fire, period, knowing the
danger involved. This, despite her drunkenness and distressed
mental state, compels me to conclude that her moral culpability was
not, as suggested by Defence, at the lower end of the scale.
 19

[107] I agree that her culpability would have been higher had she been
sober, and indeed more so if she had used an accelerant to start the
fire. But, that said, her moral culpability is not greatly diminished by
her distressed mental state. Nor do I consider the fact she was drunk
to be a mitigating factor.

[108] I do agree, however, with the Defence that there are factors which
should serve to mitigate Ms. Ainaliks sentence, namely her guilty
plea, her relative youth, and her rehabilitative efforts since she has
been released on bail.

[109] But these mitigating factors cannot, in terms of the type of sentence
to be imposed, overcome the most glaring aggravating circumstances
in the case: the danger to people in the neighbouring units and to the
units themselves, as well as to the firefighters; and the fact that the
community of Cape Dorset has been deprived of a very valuable
asset, a housing unit, in circumstances where public housing is in
such short supply.

[110] I have considered the case authorities cited by the Defence in

support of a non-custodial sentence in Ms. Ainaliks case.

[111] In the Ontario case of Kutsukake, the Court of Appeal set aside a 12
month jail term and substituted it with an 18 month conditional
sentence followed by two years of probation. The accused was a 20-
year-old aboriginal female with no criminal record. She pleaded guilty
to a charge of criminal negligence. She had been pulling a friend with
a tow rope behind a car as a result of which the friend was killed. A
term of the accuseds community service involved accused speaking
in local schools about the danger of her conduct.

[112] In Kutsukake, however, as tragic as the event was, it was essentially

an accident and there was obviously value in having the young
accused speak to local high school students about the folly of her
behaviour in order to deter other young people from similar activity.

[113] In contrast, Ms. Ainaliks crime was far from accidental and I see
little value in having her speak to other members of the community,
for example on the local radio, about her drunken behaviour.

[114] In the Yukon case of Maynard, a suspended sentence was imposed.

The accused was an aboriginal offender with no criminal record. He
pleaded guilty to a charge of drug trafficking. He had sold three grams
 20

of cocaine to an undercover officer and arranged for the officer to buy

another ounce of cocaine from a third party.

[115] As much as cocaine is a blight upon society, in my view, Ms.

Ainaliks conduct had a much greater community impact than the
single act of drug trafficking by the accused in Maynard.

[116] And finally, in the Ontario case of Eks, a suspended sentence was
imposed. However, I agree with Crown Counsel that Eks is
distinguishable from Ms. Ainaliks situation in that the fire involved
was a minor one, and the accused, unlike Ms. Ainalik, had spent
some eight months of her bail essentially under house arrest.

[117] As I approach the application of section 718.2(e) in this case, I agree

that the Gladue factors involved are compelling. However, in this
case, the Gladue factors cannot mitigate the type or form of the
penalty.

[118] The paramount sentencing objectives to be applied in this case are

deterrence and denunciation, in particular denunciation.

[119] In my view, a suspended sentence is not a sanction which, in the

words of section 7182(e), is reasonable in the circumstances.

[120] The reason for this is quite simply that a community-based

disposition of probation only is not sufficiently denunciatory of the
crime which Ms. Ainalik committed.

[121] In both Gladue and Ipeelee, our Supreme Court recognizes that
public safety, denunciation and deterrence of crimeand not just
violent crimeare values embraced by members of all communities,
aboriginal and non-aboriginal.

[122] The imposition of a suspended sentence in this case would be a

signal to the people of Cape Dorset, and in particular the local
housing authority, that the Court does not take Ms. Ainaliks crime
seriously.

[123] People in communities have a right to assume that when their

neighbour (whether in a moment of anger, or in a drunken stupor, or
in suicidal mood) decides to set fire to his housing unit, the Courts
take this type of activity seriously and are prepared impose jail terms.
 21

[124] In addition, in terms of general deterrence, a suspended sentence in

this case would, to others who might be inclined to set fire to their
housing unit, be a signal that nothing of any real consequence will
result.

[125] I accept the Defence submission that the sentencing objective of

individual deterrence may in this case be satisfied without a jail term.
However, in my view, the only reasonable sanction which satisfies the
denunciatory and general deterrent objective is the very real
consequence of imprisonment.

[126] The imposition of a suspended sentence would, as the Crown has

suggested, be an overemphasis on the sentencing objective of
individual deterrence to the exclusion of the denunciatory and
deterrent objectives.

[127] Indeed, even if a conditional sentence of supervised imprisonment in

the community was available in this case as a matter of law, it would
not be sufficiently denunciatory of the offence which has been
committed. I would, thus, decline to impose such a sanction.

[128] I accept that Ms. Ainalik was in a state of severe general distress in
the few months leading up to 7 December, 2015, when she committed
the offence. In particular, I understand her frustration in not being able
to see her daughter since August of 2015.

[129] I accept that her motivation in starting the fire, albeit fueled by drink,
was to end her own life. But for these circumstancesif she simply
was drunk and angryI would impose sentence in the high territorial
range.

[130] However, I accept the Crowns fair but firm reassessment of its
position that Ms. Ainaliks sentence should be shortened because of
these compelling personal circumstances.

[131] In addition, in applying the remedial provisions of section 718.2(e) of

the Criminal Code, as well as the common law principle of restraint, I
am required to temper justice with mercy and to impose only the
minimum amount of jail necessary to satisfy, in this case, what I
consider the paramount sentencing objective of denunciation.
 22

VII. CONCLUSION

[132] I will keep the amount of imprisonment within the range suggested
by the Crown, namely between six and nine months jail.

[133] I am not, however, compelled to accept the bottom end of the

Crowns suggested range as sufficiently denunciatory of Ms. Ainaliks
offence. I am of the view that the minimum amount of jail necessary in
this case is nine months imprisonment.

[134] Ms. Ainalik, I sentence you to nine months jail. Under our sentence
calculation guidelines that equals 270 days jail.

[135] I will credit you with 10 days remand which is deducted from the 270
days, leaving you with a net jail sentence, starting today and going
forward, of 260 days.

[136] I will make a special endorsement on your warrant of committal

recommending that the corrections authorities allow for an early
release so that your baby does not suffer the stigma in later life of
being born while his or her mother was in jail.

[137] Upon your release, you will be placed on probation for 18 months.

[138] The terms of the probation are that you will report to probation
services within seven days of your release. You will take counselling
as directed by probation services for alcohol abuse and any mental
health issues that you and probation services feel need to be
addressed. This includes counselling with an elder of your choosing.

[139] I see no need to require a DNA sample from Ms. Ainalik for possible
future investigative purposes as she has no history of violence and
did not, on this occasion, commit an offence of personal violence.
There will be a Victims Services tax in the amount of $200 and Ms.
Ainalik will have until 30 September, 2018 to pay.

Dated at the City of Iqaluit this 5th day of September, 2017

__________________________
Justice N. Sharkey (Senior Judge)
Nunavut Court of Justice