Supreme Court

R. v.  Delorme, 2005 NWTSC 79
       Date: 20050920
       Docket: S-1-CR2004000034

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:

HER MAJESTY THE QUEEN

- vs. -


GERALD ANTHONY DELORME

Transcript of the Decision on the period of Parole Ineligibility by The Honourable Justice J.Z. Vertes, at Yellowknife in the Northwest Territories, on September 20th A.D., 2005.

APPEARANCES:
Mr. N. Sinclair:     Counsel for the Crown
Ms. C. Rhinelander:     Counsel for the Accused

Charge under s. 235(1), s. 240 Criminal Code of Canada

 THE COURT:    The offender, Gerald Delorme, was convicted of second degree murder in the
death of Justin Vo.
      The sentence mandated by law for second degree murder is life imprisonment. However, there remains to be determined the period of time the offender shall be required to serve before he will be eligible to be considered for parole. The law specifies that the period of parole ineligibility shall be no less than ten years and not more than 25 years.
      Section 745.4 of the Criminal Code provides that the Judge who presided at the trial of the offender may, having regard to the character of the offender, the nature of the offence and the  circumstances surrounding its commission, and the recommendation, if any, of the jury, substitute for ten years the number of years of parole ineligibility the Judge deems fit in the circumstances. In this case the jury made no recommendation as to parole ineligibility. That fact alone does not determine the period of parole ineligibility. It is still my responsibility to impose a fit sentence according to the factors set out in the Criminal Code, those being:
(a) the character of the offender;
 1
(b) the nature of the offence; and,
(c) the circumstances surrounding the commission  of the offence.
      Implicit in these factors are considerations of specific and general deterrence, denunciation, and the reformation and rehabilitation of the offender. And, as noted by the Supreme Court of Canada in R. v. Shropshire (1995), 102 C.C.C. (3d) 193, the determination of the period of parole ineligibility is a very fact-sensitive process. The Court also noted that the discretion to impose a period greater than ten  years reflects the fact that within the category  of second degree murder there is both a range of seriousness and varying degrees of moral culpability.
      The Supreme Court also held that it is incorrect to start from the proposition that the period of parole ineligibility must be the statutory minimum unless there are unusual circumstances. It is a question of what is the  appropriate sentence in the circumstances. The emphasis is on the protection of society through the Court's expression of repudiation for the particular crime by the particular offender.
      In my opinion, the nature and circumstances of this offence are quite serious and
 2
aggravating. They reveal an undercurrent of drug  use, violence and criminality that no community should tolerate.
      All of the principals involved in this offence were participants in the drug underworld
of Yellowknife. The offender was one of several  cohorts of a crack cocaine supplier by the name
of Dale Courtoreille. Courtoreille ran a crack  house in downtown Yellowknife. From there crack cocaine was sold by people living in the house. There were women living there whose primary jobs were to man the door and keep the place clean. There were men whose primary role was to act as  the “muscle”, protection for the house. These  people did these things in exchange for free drugs and alcohol. One of these “muscle” guys  was the offender. Another one was Francis Yukon. There was also Richard Tutin, a long-time drug addict and small-time dealer, who was a hanger-on at the crack house.  Justin Vo was another hanger-on, although not living there. He was well-known as another street dealer of crack cocaine.
     These were not wayward kids. These were all adults. These were not socially deprived individuals. They were, some of them at least,  career criminals. Some were from southern
 3
Canada; most, I am sad to say, were from the  Northwest Territories. The fact that they could operate their various criminal enterprises for so long, in the heart of this city, and apparently in flagrant view of many, including the police, should serve as a shock and an eye-opener for everyone in this community. And I want to emphasize this.
      The problems and criminality caused by the illegal drug trade in this city will not be solved by this one case. It is going to take a  serious effort by everyone, in particular by our civic, business and political leaders, in frankly recognizing and dealing with the festering  problems in this city. The Courts and the police  cannot do it without the active involvement of everyone, including the public.
     In the early morning of June 16th, 2003, the deceased Vo came to the crack house. Vo was looking for a safe place because he was being  threatened at the time by another notorious Yellowknife criminal. Later on the same morning, the offender and Yukon started to harass Vo, claiming he endangered their little operation by  drawing police attention to it and that he owed a debt to Courtoreille. The offender and Yukon started to assault Vo by slapping and punching
 4
him. Tutin was there but claimed to take no part  in this. The offender and Yukon were using crack  cocaine and drinking alcohol at the time. Vo tried to get away but he was restrained. Yukon  tied up his feet and legs with an electrical cord. The offender punched Vo and hit him with a crowbar. Then the offender took the electrical cord and wrapped it around Vo's neck. At this  point he strangled Vo. This was the cause of death.
 After Vo died, the offender, Yukon and Tutin cleaned up the house. They then took Vo's body
out of town where they tried to burn it. Subsequently, with the assistance of Courtoreille, they concocted a cover story. All  of these individuals were subsequently arrested less than two weeks later.
 Yukon eventually pleaded guilty to manslaughter and was sentenced to five years imprisonment (in addition to three years' credit  for pre-sentence custody) . Tutin and Courtoreille both pleaded guilty to being  accessories after the fact to murder. Tutin received a sentence of two years (after credit for pre-sentence custody) while Courtoreille was sentenced to 18 months in jail (also after receiving credit)
 5
So, the circumstances reveal a death as the  result of a prolonged beating and confinement
done within the context of a criminal drug enterprise. It was a killing done not as an impulsive isolated act but as part of a concerted attack by at least two men on the victim. They then attempted to cover up their crime by trying to destroy the body. And all of this was done in  an atmosphere of crack cocaine induced violence and paranoia.
     The offender, Gerald Delorme, is now 40 years old. At the time of the offence he was 37. He was born at Fort Resolution and grew up there and in Fort Smith. His parents were described as loving and supportive. He was one of 11 children in the family. He has a Grade 5 education. He was taken out of school to go with his parents  into the bush where he learned how to hunt and
trap.
     The offender left home when he was 17 or 18 years old. Over the years he fathered nine  children, one of whom is now deceased, and he has ongoing contact with five of them. Prior to this offence, he was living in a common-law relationship and caring for a son of that relationship. He has worked at a variety of jobs over the years, in construction, mining and
 6
logging. He does not appear to be an  unintelligent or unsophisticated individual.
      The offender also, however, has a lengthy criminal record. Between 1983 and 2002, he was convicted of 30 offences, 11 of which were for  crimes of violence. I was told that most of  these offences occurred while the offender was under the influence of alcohol. The offender was sentenced repeatedly to jail although always for relatively short periods of time. He has never
received a penitentiary sentence.
     The record, in my opinion, is important. It  reveals, as Crown counsel noted, a continuing pattern of violence and lawless behaviour. The fact that it may have been a relatively low level  of criminal behaviour makes it no less a continuing pattern. And it is that pattern which reflects on the offender's character.
     I have to consider, as defence counsel urged me to, the circumstances of Delorme as an aboriginal offender. Section 718.2(e) of the  Criminal Code mandates that the Courts give  particular attention to the circumstances of aboriginal offenders.
     As I stated during the hearing, I can take  judicial notice of broad systemic and background factors affecting aboriginal people generally,
 7
particularly northern aboriginal people. I know  that even if an individual, such as this offender, grew up in a loving and caring family  environment, there is often no way to avoid some  of the pervasive problems present in our aboriginal communities caused by poverty,  substance abuse and family disruptions. But I heard no evidence in this case of any unique systemic or background factors which may have  played a specific part in bringing this particular offender before the Court. Nor indeed  is there any evidence of systemic factors that  may have played some part in the particular crime before the Court.
      In my opinion, this is a case where the offender's aboriginal background, while certainly relevant, does not justify a sentence other than what would be imposed on any other offender with  this offender's background and in the circumstances of this offence. As noted by the Supreme Court of Canada in R. v. Gladue, [19991 1 S.C.T . 68  generally speaking, the more serious and violent  the crime, the more likely it will be as a practical matter that the sentence will be the  same for similiar offences and offenders, be they aboriginal or non-aboriginal.
     Crown counsel has urged me to impose a
 8
period of parole ineligibility of 15 to 20 years.   He submitted that the crime was shocking and brutal, compounded by indignities inflicted upon  the body of the victim and an attempt to cover up  and deflect suspicion onto others. The killing was done in the context of a criminal organization, according to Crown counsel, and  this is a highly aggravating factor.
      Defence counsel has urged me to maintain the ten year minimum period of parole ineligibility.  She noted in particular that this offender was a  relative newcomer to the crack cocaine enterprise run by Courtoreille. She explained how, in the year before the offence, the offender's father and uncle had passed away. One of the offender's younger brothers had apparently got himself  involved as a user of crack cocaine and through him the offender met Courtoreille. Courtoreille convinced Delorme to work at the crack house and Delorme did so, according to his counsel, so as to make sure that they were not selling drugs to his brother. He started using crack cocaine  himself, however, and became addicted.
Eventually he worked all the time for  Courtoreille in exchange for drugs, money and
alcohol.
     I have no reason to doubt what counsel told
 9
me. But I do point out that this explanation as  to how Delorme got involved in Courterille's drug enterprise comes only from the mouth of counsel. The offender never testified. He chose not to say anything at this hearing. Also, while it may  explain his involvement with Courtoreille, it  does not explain his motive to murder Justin Vo, other than the fact that he was using crack cocaine and alcohol heavily at the time.
     I am told that the offender has been a model  prisoner in the 26 months of his incarceration to date. That is all to the good and I am sure that such continued good behaviour will bode him well when the parole board does start to consider his  suitability for parole.
      Both counsel referred me to cases from this and other jurisdictions to support their
positions. These are of limited assistance since  sentencing always depends on the circumstances of  the particular case, but they do provide some broad guidance.
     In this case, the offender is one who has  demonstrated a continuing pattern of criminal behaviour. He was involved, albeit for a limited  time, with a group of people immersed in the sale  and consumption of illegal drugs. He, together  with at least one other person, inflicted a
 10
beating on the victim during the course of which  he strangled the victim. By the jury's verdict they were convinced that at that point in time he iintended to kill Justin Vo and he did so.  Afterward he participated, along with his criminal associates, in the attempted destruction of the victim's body and the cover-up of his crime. In summary, the circumstances of the offence are serious. And the offender's history  reveals that this act was not necessarily out of character.
      In my opinion, the totality of the circumstances warrant an increase in the period of parole ineligibility.
     I want to emphasize that I am not fixing a  date when the offender will be released on  parole. That will be the function of the parole  authorities when the period of parole ineligibility expires. They may grant parole or not. Or they may grant parole at a later time. That depends on their assessment at that time as  to whether Delorme is a suitable candidate for parole.
     I also want to emphasize that I am not  fixing the offender's sentence at some number of
years less than life imprisonment. His sentence  is one of life imprisonment. The only decision
 11
that I am making is to set the minimum amount of  time which the offender must serve before he becomes eligible for parole
      Having considered the factors set out in the Criminal Code, and the submissions of counsel, I am satisfied that the period of parole  ineligibility should be increased albeit not  quite as much as Crown counsel has urged me to do so.
     Stand up, Mr. Delorme.  I sentence you to imprisonment for life without eligibility for parole for a period of 14 years.
     You may sit down.
     In addition, an order will issue pursuant to  Section 487.051 of the Criminal Code authorizing the taking of a sample of bodily substance sufficient for DNA analysis. I have signed the draft order submitted.
     Also, an order will issue pursuant to Section 109 of the Criminal Code prohibiting the
offender from having in his possession any firearms, ammunition or explosives for the balance of his life. In my opinion a lifetime  prohibition is warranted when the conviction is  for murder even if no firearm was used. Considering the offender's background, however, I
 12
will, pursuant to Section 113, authorize the  chief firearms officer to issue an authorization, if warranted, to the offender upon his release to possess and use firearms and ammunition solely for the purpose of sustenance hunting and trapping.
     I have considered defence counsel's request  that I recommend that the offender serve his sentence here in the Northwest Territories so  that he can remain close to his family. While I  sympathize with the offender's family, because they are not at fault in this whatsoever, I decline to make such a recommendation. I will  leave the decision to the people in the best position to make it, those being the correctional authorities, in the expectation, since they will  receive a copy of the transcript of the sentencing hearing, that they will consider all pertinent factors including those raised by defence counsel.
      Under the circumstances there will be no Victim of Crime fine surcharge. Finally, I want to thank both of you,  counsel, both Crown and defence, not just for your helpful submissions on the sentencing but  for your careful and professional work throughout the course of these proceedings.
 13
      Madam Clerk, we will close Court.

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


 Lois Hewitt, CSR(A), RPR, CRR
 Court Reporter