Supreme Court

R. v. Eagle, 2002 NWTSC 39
Date: 20020513
Docket: S-1-CR2001/112

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


HER MAJESTY THE QUEEN


- vs. -


FRANCIS JOHN EAGLE


Transcript of the Oral Reasons for Sentence by The Honourable Justice V.A. Schuler, at Yellowknife in the Northwest Territories, on May 2nd A.D., 2002.


APPEARANCES:

Mr. S. Niblock:   Counsel for the Crown

Mr. P. Smith:   Counsel for the Accused


THE COURT:   Mr. Eagle has pleaded guilty to two counts in the Indictment before me and has now been convicted on those counts. One is the offence of assault with a weapon, being a handgun, and he is convicted as a party to that offence and then also assault with a weapon, being a knife, in which he is the principal actor.

Just very briefly for the record, the facts are that the victim of the offence had apparently taken some cocaine from Mr. Warner and had used it. Mr. Warner obviously found out about that somehow and the next day he and Mr. Eagle, who were sitting drinking and smoking marijuana with the victim, committed this assault on the victim.

Now, I have to say, and I am not going to take this very far because it certainly isn't set out very clearly in the Agreed Statement of Facts, but there is a flavour here that there may have been some planning put into this. I am not going to treat that as an aggravating factor because it isn't clearly set out but it certainly is something that strikes me when I read these facts.

In any event, it appears that what happened was that Mr. Warner asked the victim whether he had smoked any cocaine the night before, the victim said no, Mr. Warner lunged at him and knocked him to the floor.

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Now, the assault itself, as I see it, when one person assaults another and a third person assists by holding that other person down, I don't see a very great difference in the degree of responsibility between the two people involved in the assault. It's true that Mr. Eagle didn't produce the gun, it was Mr. Warner who produced the gun, or the replica BB gun, but without Mr. Eagle holding down the victim, Mr. Warner no doubt would not have been able to do everything that he did. So I really don't see that there is a large degree of difference in their participation.

Once Mr. Warner was involved in beating the victim with the handgun, beating him about the head and face with the handgun, the victim then apparently was able to grab a knife, which was nearby, and Mr. Eagle told him to let go of the knife or he would hurt him and then grabbed the knife from him and pushed him down using the knife and held him down with the knife while Mr. Warner continued beating him.

In those circumstances, it seems to me that this is very different from the kind of situation where maybe there is a consensual fight or altercation going on and one party grabs a knife. In this case, the victim was already down, he was being beaten, he grabbed the knife, I would say obviously

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on these facts to try to protect himself with it, and Mr. Eagle took it from him and used it to continue the assault and to help Mr. Warner continue the assault. So I have to say that on the facts, I really don't see that there is a great degree of difference in the level of participation as between Mr. Eagle and Mr. Warner.

The only thing that Mr. Eagle didn't do is he didn't actually produce the gun. So to that extent I suppose that it could be said that he has somewhat less responsibility but I really don't see it as being a great deal of difference or something that would make a huge difference in the sentence to be imposed.

Obviously from the photographs that have been entered, it was a serious beating on the victim. The facts don't reveal whether he got any medical treatment or needed any kind of medical attention but it's a serious beating, perhaps not among the most severe that unfortunately we sometimes see in court, but I would conclude from the fact that at one point he was bleeding heavily from inside his left ear that there were some fairly serious results to him.

Now, in terms of Mr. Eagle, I have been advised that he is 28 years old. He has apparently done well enough at work, his painting work, in the past that

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his employer is prepared to hire him again. He has had a difficult background, there doesn't seem to be any doubt about that. He has what is, I think by any description, a terrible record going back to 1990.

Now, when I look at the record closely, I do note that he has not, other than on one occasion, been sentenced to very lengthy terms of incarceration. Most of his incarceration seems to be in the 30 day to three month range so I take it that perhaps some of these offences weren't at the very serious end of the scale. Much of the record is for property offences and also for breaching various court orders, probation orders, recognizances.

The convictions that are related are in 1993, pointing a firearm, for which he received three months and 14 days it looks like. Also in 1996, assault with a weapon for which he received 18 months and that's the longest sentence that he has received. 1998, spousal assault causing bodily harm for which he received a $400 fine. So it's the kind of record that to me, when one looks at it carefully, it is made up of mostly what are not very serious offences but it is obviously the length of the record that is of concern. Mr. Eagle has been in trouble with the law, been in court, continually over the past 12 years up to today.

Now, he is still fairly young, he is 28 years

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old, but he is inching up there in age and at some point, if he doesn't make a complete break with the way that he has been acting in the past, nobody is going to give him a chance. I don't doubt that he has plans, that he has things that he would like to do. He would like to have his own business one day and hopefully, keeping that in mind, will encourage him to change his life around because unfortunately, if it continues this way, he may have trouble starting a business or getting a job simply because of this record and it may be very difficult, and in fact I would expect it would be difficult for people to trust him simply because of the number of convictions that he has accumulated in the past, the number of times that he has been in trouble with the law.

I do take into account the guilty plea. It does not come at an early date and the victim of the assault did have to testify at the preliminary hearing however it does save him from having to testify again at a trial and so I do give full credit to the guilty plea. We are not on the eve of trial here so it does bear a good deal of weight.

I take into account that Mr. Eagle has indicated that he is sorry for the attack on the victim. It seems to me that he is perhaps trying to shift a little bit of the blame by saying if he

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never met these people, maybe this would have never happened but I am sure that Mr. Eagle realizes that he has to take responsibility for what he has done here and only he can take responsibility and only he can change his life around.

As far as the remand time goes, I have to say that I have a great deal of trouble with crediting time served on another offence, even if it was in remand, to this offence. To me that just isn't appropriate. It is completely different from the situation where someone is detained in custody on an offence and is serving no other sentences and all of their pre-trial time is the result of being detained on the particular offence, in my view it makes sense then to take that into account when the person is being sentenced. But to take into account time that actually is a sentence for other offences, in my view is not an appropriate way to treat pre-trial custody or to think of pre-trial custody. And that, in my view, is a reason for not treating Mr. Eagle's pre-trial time the same way that Mr. Warner's was apparently treated.

Stand up, please, Mr. Eagle.

Mr. Eagle in all of the circumstances and taking into account everything that I have said and everything that has been put before me, the sentence that I impose is as follows: You are sentenced to a

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term of incarceration of three years on Count 1 and 3 years concurrent on Count 4, 30 that's a total sentence of three years.

There will be a firearm prohibition order in the usual terms commencing today and expiring ten years from your release from imprisonment on this sentence.

And there will also be a DNA order. I am satisfied that it is in the interest of the administration of justice to make that order in these circumstances. Do you have a draft order?

MR. NIBLOCK:  Yes, I do, Your Honour.

THE COURT:   Do you want to hand it up now then? You can have a seat then Mr. Eagle.

Have had a chance to look at the order, Mr. Smith?

MR. SMITH:   I have, Your Honour, thank you.

THE COURT:   And you are satisfied with it?

MR. SMITH:   Yes.

THE COURT:   All right, that order will issue then.

Is there anything further?

The Victims of Crime surcharge will be waived in the circumstances.

MR. SMITH:   I am not sure if the other charges were actually formally stayed.

MR. NIBLOCK:  I would direct that the other

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charges be stayed.

THE CLERK:   2, 3, and 5?

MR. NIBLOCK:  Yes.

THE CLERK:   Thank you.

THE COURT:   All right, thank you, counsel, and we will close court.


(AT WHICH TIME THE REASONS FOR SENTENCE CONCLUDED)

Certified correct to the best of my skill and ability,

Lois Hewitt
Court Reporter

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