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Abstract: Transcript of the oral reasons for sentence
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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) Official Court Reporters 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 Official Court Reporters 1 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 Official Court Reporters 2 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 Official Court Reporters 3 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 Official Court Reporters 4 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 Official Court Reporters 5 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 Official Court Reporters 6 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. Official Court Reporters 7 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. Official Court Reporters 8 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 Official Court Reporters 9
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