Supreme Court
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Decision information:
Abstract: Transcript of the oral reasons for sentence
Decision Content
R. v. Elias, 2006 NWTSC 41 S-1-CR-2003000105
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- and -
JIM ELIAS
_____________________________________________________
Transcript of the Oral Reasons for Sentence delivered
by the Honourable Deputy Justice V.O. Ouellette,
sitting at Tuktoyaktuk, in the Northwest Territories,
on July 11th, A.D. 2006.
_____________________________________________________
APPEARANCES:
Ms. L. Colton: Counsel for the Crown
Mr. N. Sharkey, Q.C.: Counsel for the Accused
Mr. J. Mahon:
(Charges under s. 236(a) and 267(a) Criminal Code)
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1 THE COURT: Jim Elias has pled guilty to
2 manslaughter and assault with a weapon. The
3 Criminal Code sections 718 and 718.2 set out the
4 sentencing principles and objectives and factors
5 that I must consider.
6 In determining the appropriate sentence for
7 Mr. Elias, I must apply those principles which
8 require a balance between deterrence and
9 denunciation, that is, general deterrence and
10 also specific deterrence, and also
11 rehabilitation, reparation for the harm that he
12 has done, but also the responsibility to his
13 community and to himself. In addition, I must
14 consider any aggravating or mitigating
15 circumstances which may apply to this case.
16 There has been an Agreed Statement of Facts,
17 which was read in by the Crown and agreed to by
18 Mr. Elias and his counsel, but I will summarize
19 the facts as follows: On February 24th, 2003 Jim
20 Elias, Brian Elias, Sammy Gruben and Gloria
21 Gruben had all been drinking, that including the
22 day before. On February 24th, 2003 they were at
23 various levels of intoxication.
24 At some point an argument took place which
25 was in relation to Kurt Elias, that is, Jim's
26 son, who had committed suicide almost two years
27 to the day. At some point, Jim Elias, Brian
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1 Elias and Sammy Gruben went outside. A gun was
2 used outside and Brian Elias was shot twice and
3 Sammy Gruben once in the shoulder. Brian
4 suffered massive internal injuries from the
5 gunshots and died. Sammy Gruben suffered a
6 shoulder injury.
7 I am satisfied that the facts are also clear
8 that after the shooting Jim Elias knew that he
9 had made a bad, bad mistake, as he stated; that
10 he couldn't fix that mistake. It is also clear
11 in the conversation with the RCMP that Jim Elias
12 did not remember what had happened, but he knew
13 that something had happened and it was bad and it
14 was because of him and it was because of him that
15 Brian was dead.
16 I wish to thank Crown counsel, Ms. Colton,
17 and defence counsel, Mr. Sharkey and Mr. Mahon,
18 for their very capable and very fair submissions.
19 I am satisfied that the joint submission of a
20 range of six to eight years' jail is appropriate.
21 There is no doubt that the combination of alcohol
22 and guns often and usually, and unfortunately,
23 leads to tragedy. As a result, the joint range
24 that has been proposed to me reflects the general
25 deterrence factor. That is to say that where
26 alcohol and weapons are mixed, the consequences
27 will be severe and the jail consequences will be
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1 severe.
2 The circumstances of this case are so sad.
3 It is difficult to say with certainty, but I am
4 sure that the influence of alcohol likely brought
5 back the bad memory of Kurt's suicide, only to
6 lead to more drinking and arguing over his loss.
7 It is likely that it is the arguing over Kurt's
8 death which, in fact, led to Brian's death. How
9 ironic and stupid that the loss of one life, that
10 is, Kurt's, of a loved one, would lead to the
11 loss of another loved one, Brian.
12 The aggravating factors are as follows: The
13 victims were not strangers. They were a brother
14 and a friend. They were loved ones. They should
15 have been able to expect not to be harmed by Jim
16 Elias. I also find it aggravating that the
17 actions taken by Jim Elias, although not entirely
18 known, were not impulsive in the sense as we know
19 impulsive to be, that is, more of a reaction as
20 opposed to an action. Aggravating, but also, as
21 I will say, mitigating is, in fact, the sorrow
22 and the effect that Jim Elias' actions have had
23 on the entire Tuk community.
24 However, there are many mitigating
25 circumstances in this case. The guilty plea
26 which Jim Elias has entered is very important.
27 It is very important because it has avoided a
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1 trial for the Tuk community and also has shown a
2 clear sense of him accepting responsibility for
3 the actions that he has done.
4 I am also satisfied and find as a mitigating
5 circumstance the genuine remorse which Jim Elias
6 has shown. He has accepted his actions have
7 caused so much grief to his family and also to
8 himself and the fact that he has killed his
9 brother, the one he loved; also, that he must now
10 live with those consequences for the rest of his
11 life.
12 I also find as a mitigating circumstance,
13 but not that important, that after the shootings
14 there was a peaceful surrender. The RCMP should
15 be commended for the way they approached the duty
16 of ensuring nobody suffered further harm in their
17 very capable approach in obtaining Jim Elias'
18 surrender.
19 But I must also take into account Mr. Elias'
20 personal circumstances. Although he has a
21 criminal record, it is relatively minor in the
22 big scheme of things. Further, it shows no
23 entries until 1993 when Jim Elias would have been
24 approximately 32. When Mr. Elias was
25 approximately 30 or 31 - I have not figured out
26 exactly the exact date - he had the one common
27 assault, and then the next entry which is of
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1 relevance is 1997, assault with a weapon, which
2 has been explained by Mr. Sharkey.
3 But other than this criminal record, Mr.
4 Elias' past shows him to be a family man and a
5 hard worker. He, in fact, followed in his
6 father's footsteps learning to live off the land
7 at an early age, at 11 being a hunter and a
8 trapper. Then, as he grew older and in his teens
9 and in his 20s, in addition to continuing the
10 family tradition of hunting and trapping, took on
11 other labour employment in, I will call it, the
12 off-season of hunting and trapping.
13 Then in 1998, to his credit, and probably
14 the RCMP at the time, he was seen by them to be a
15 good, honest, hard working individual, because he
16 was approached to join the RCMP. In fact, he
17 succeeded and became a full-fledged member of the
18 RCMP. But that career was not for him, probably
19 due to his nature, being a hunter and trapper,
20 and the scheduling of the RCMP would not go along
21 with that. He left that employment three or four
22 years later.
23 Then, unfortunately, the abuse of alcohol
24 changed his life and his family forever on
25 February 24th, 2003. In the end, I am satisfied
26 that Mr. Elias' past tells me he will not be
27 involved in the future in the type of behaviour
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1 that he did on February 24th, 2003. That is not
2 Mr. Elias, other than that one incident with the
3 unfortunate abuse of alcohol.
4 Mr. Elias, you are very lucky to have such a
5 supportive and understanding family.
6 Please stand. For all the reasons I have
7 stated, I sentence you to six years in jail for
8 manslaughter and to six months in jail concurrent
9 for assault with a weapon. You may be seated.
10 You will be given a credit of two-to-one for
11 the time spent, which I understood to be eight
12 and three-quarter months, which would have made
13 it 17 and a half. I have rounded that off to 18
14 months' credit for time served. So your net
15 sentence is four and a half years left to serve.
16 I appreciate the Crown has not taken a
17 position in relation to the endorsement that is
18 being sought on the warrant of committal, but I
19 am satisfied that it is warranted in this case,
20 and I will endorse the warrant to have you serve
21 your sentence in a facility in the Northwest
22 Territories. I do that for several reasons. The
23 main one is because you are from this area, you
24 were raised here, you have lived off the land,
25 and, in fact, your entire life up to now, age 42,
26 has been lived in this area. But I also believe
27 it is very important for the rehabilitation and
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1 the support that you will need in the upcoming
2 years to have your family - your brothers,
3 sisters, mother and father, but also your
4 children - close enough that they can visit. I
5 am satisfied that if you are sent to a southern
6 facility, the likelihood of you getting any
7 family visitors is probably nil. It is not going
8 to happen. But I think society will be better
9 served if you have the supports around you at all
10 times, even while you are a serving prisoner.
11 Mr. Mahon, is there another endorsement that
12 I can ask be placed that he does seek the
13 psychological therapy that he has talked about
14 and also the alcohol therapy that he has talked
15 about?
16 MR. MAHON: Your Honour, my understanding
17 is you can make that recommendation and they will
18 take that very seriously when dealing with what
19 plan of action they will assign to him.
20 THE COURT: Ms. Colton, I am talking
21 specifically, first of all, with respect to the
22 psychological therapy, because I believe that
23 there are still issues that have to be dealt with
24 regarding Kurt's death, which apparently is the
25 stem of this entire unfortunate incident.
26 MS. COLTON: I have no objection to that
27 endorsement being made.
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1 THE COURT: All right.
2 MR. MAHON: Your Honour, one comment.
3 Pursuant to the provisions of the Code, my
4 understanding is it requires Mr. Elias' consent,
5 and he does so.
6 THE COURT: All right. Mr. Elias, I
7 appreciate what you told me, and I do believe
8 that you have recognized that you have to deal
9 with that issue; or it may be more than just you,
10 it may be an entire family issue. But you
11 definitely have to deal with that issue so that
12 you do not put yourself in that position of binge
13 drinking or whatever it was that happened on that
14 date. But I also think you have to learn how to
15 deal with the alcohol, and that is why I am also
16 making the recommendation with respect to alcohol
17 therapy and treatment as recommended by your
18 jailors. Do you have any questions, Mr. Elias?
19 THE ACCUSED: No.
20 THE COURT: All right. Ms. Colton, any
21 questions?
22 MS. COLTON: No. Thank you.
23 THE COURT CLERK: Your Honour, charge number 2?
24 THE COURT: Count number 2?
25 MS. COLTON: I would ask that it be
26 withdrawn.
27 THE COURT CLERK: Thank you.
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1 MS. COLTON: There is also a second
2 indictment that had been filed earlier, and I
3 would ask that that other two-count indictment be
4 withdrawn.
5 THE COURT: It is. Thank you.
6 MS. COLTON: And the only other thing we
7 haven't addressed is forfeiture of the firearm.
8 THE COURT: There will be a forfeiture of
9 the firearm.
10 MR. MAHON: And just to confirm, there's a
11 finding of not guilty with respect to the offence
12 charged?
13 THE COURT: A finding of not guilty in
14 relation to second degree murder, but a finding
15 of guilt with respect to manslaughter.
16 MR. MAHON: Thank you, sir.
17 THE COURT: Anything further, counsel?
18 MR. SHARKEY: No. Thank you.
19 THE COURT: All right. Thank you. We can
20 adjourn, Madam Clerk.
21 Certified to be a true and
accurate transcript pursuant
22 to Rules 723 and 724 of the
Supreme Court Rules.
23
24
______________________________
25
Jill MacDonald, CSR(A), RPR
26 Court Reporter
27
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