Supreme Court

R. v. Elias, 2004 NWTSC 5
Date: 20040227
Docket: S-1-CR-2003000082

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


HER MAJESTY THE QUEEN


- V -


JONOTHAN ELIAS


Transcript of the Oral Reasons for Sentence by The Honourable Justice R. P. Foisy, sitting in Tuktoyaktuk, in the Northwest Territories, on the 10th day of February, A.D., 2004.


APPEARANCES:

Mr. S. Niblock:   Counsel for the Crown

Mr. R. Gorin:   Counsel for the Defence


THE COURT:   Jonothan, stand up. I am sure that Mr. Gorin has told you that notwithstanding the fact that this young girl consented, it is a consent which was, I think, pretty slim, because she was in a position where she could not really consent. There is another thing. She was also under age. You did not really do a lot to find out how old she was, although your counsel tells me that you believe that she was 14 or 15, and I have no reason to reject that, but that is not enough.

First of all, do not get yourself into that situation; and secondly, when you are dealing with young ladies you make sure of their age. That means you have to make some inquiries. Even if you are just going to go out and hold hands, you want to find out how old she is.

Now, I am looking at your record, and it looks worse than it is because you did go on what appears to be three sprees, with the last one being in 1999, and none of the offences relate to sexual misbehavior. So in that sense it is an older record and it is not related to this offence, so I take that into account.

Before conditional sentences were available in the Criminal Code, which has not been that long ago, you would have been going to jail for this. I am going to go along with the joint submission of counsel, because under the circumstances they could

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well have recommended jail or they could well have asked for a harsher sentence, and I would have said that that was not unreasonable, but on the other hand I have to apply a test, is the joint submission reasonable or not? I think in this case it is.

But I want to tell you something about a conditional sentence that maybe you already know. If you breach, if you do not obey these conditions then, since you are under a sentence, chances are you will probably finish the rest of the sentence in jail. So it is important that you not breach, it is important to keep your nose clean. These conditions are not going to be easy to meet. That is a year and a half, 18 months, with four months of house arrest.

I do not know how many courses, if there are additional courses that are available to you in Tuktoyaktuk, but if there is any course available where you can better yourself, instead of sitting at home watching television and sort of being bored with life and not knowing what to do with yourself, you can think of bettering yourself. Are your parents traditional people, are they Inuvialuit?

THE ACCUSED:  Yeah.

THE COURT:   Do they go on the land sometimes and hunt?

THE ACCUSED:  (NO VERBAL RESPONSE).

THE COURT:    Do you do any of this stuff?

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THE ACCUSED:  Not for a while.

THE COURT:   So that makes you Inuvialuit, and it would not hurt you if you learned a little bit about the tradition of your people. If you decided to take, I do not know, but is there a hunters and trappers association here?

I am sure in this community there are traditional things that can be done, there are courses available, and there are organizations where if you want to learn something other than sit around and play video games, you can, and that is certainly one of the best ways to start off your young life, find out and do things that are related to your people. There are other courses as well, just because you may not go back to school as such, there are other courses where you can better yourself.

All right. I am going to impose a conditional sentence of 18 months. The statutory conditions will be read to you by the clerk. You will report to the supervisor here in Tuktoyaktuk within 48 hours, and after that as the supervisor may direct. You will be under house arrest for the first four months, and that starts today.

You will not leave your parents' home or an area 15 yards from the home, unless; one, you are doing part of the community service which I am going to order, and that will be with the probation officer or

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the supervisor's consent, or if you are taking school or any other course approved by your probation officer. Now, the only other time you will be allowed to absent yourself from your parents' house in the next four months is going to be if something important comes up, important enough that your supervisor thinks that you should do it. Then she will give you written permission, and you will have to carry that written permission with you. If you are found outside and there is no written permission, you will be breached, and off you go to Yellowknife.

There will be no contact with the victim, either directly or indirectly. You will take such counselling as may be directed by the supervisor. You are going to perform 200 hours of community service as directed by the probation officer or supervisor and to his or her satisfaction. You will not have in your possession any alcohol or nonprescription drugs, nor you will not consume any during the 18-month period ofthis sentence.

Have I omitted anything, gentlemen?

MR. NIBLOCK:  I don't think so, Sir.

THE COURT:   Yes?

MR. GORIN:   Well, I think this will likely get through. There is, and I am bound to point this out, a DNA order.

MR. NIBLOCK:  Yes.

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THE COURT:   Yes, I will sign a DNA order, it is mandatory. Thank you, Mr. Gorin.

Well, Jonothan, this is your first serious offence in your young life, and I really hope it is your last one. I hope you do your time and you obey the conditions of the order and you finish it and give some serious thought to bettering yourself, becoming a better young man. All right.


Certified to be a true and accurate transcript, pursuant to Rules 723 and 724 of the Supreme Court Rules

Joel Bowker
Court Reporter

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