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Decision information:
Abstract: Transcript of the Reasons for Sentence
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R. v. Elias, 2012 NWTSC 13 S-1-CR2011000113 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - vs. - KRISTOPHER JOHN ELIAS _________________________________________________________ Transcript of the Reasons for Sentence by The Honourable Justice w. M. Darichuk, at Deline in the Northwest Territories, on February 3rd A.D., 2012. _________________________________________________________ APPEARANCES: Ms. A. Paquin: Counsel for the Crown Mr. J. Bran: Counsel for the Accused ---------------------------------------- Charge under s. 271 Criminal Code of Canada An order has been made banning publication of the identity of the Complainant/Witness pursuant to Section 486.4 of the Criminal Code of Canada Official Court Reporters 1 THE COURT: The accused has been found 2 guilty of a sexual assault. The victim was 22 3 years of age while the accused is 27 years of 4 age. 5 He has an extensive criminal record. 6 The observations of Mr. Justice Vertes in 7 R. v. Kodzin, [2011] N.W.T.J. No. 8, appear to 8 be apt. At paragraph 18 he observes, 9 Sentencing in every criminal case 10 is a difficult process. It 11 requires the balancing of 12 different objectives. If I look 13 at this case strictly with the 14 offender in mind, I might be far 15 more lenient. He made a terrible 16 mistake. He made a terrible 17 decision when he got drunk. He 18 made a terrible mistake when he 19 violated someone else. It was not 20 just a mistake, it was a crime, 21 and he is responsible for the harm 22 he has caused. So I cannot just 23 think about what would be best for 24 this offender and his family. I 25 have to think as well about 26 vindicating the victim, about 27 upholding the law so other women Official Court Reporters 1 1 are not victimised and about 2 sending a message to everyone that 3 this type of behaviour is morally 4 wrong and young men who take 5 advantage of vulnerable women will 6 be punished for it. 7 As I indicated, part of these observations 8 are apt in this decision. One other important 9 observation that he makes appears in paragraph 10 10, 11 The crime demands no different a 12 sentence than if it were committed 13 by a non-aboriginal offender in 14 the same circumstances. Serious 15 sexual assaults on women, 16 especially aboriginal women, are a 17 clear and pressing problem in this 18 jurisdiction. 19 The first issue for determination before 20 proceeding with the sentencing is whether or 21 not this is a major sexual assault. For that 22 answer, I need go no further than the decision 23 of the Alberta Court of Appeal in R. v. Arcand 24 2010 ABCA 363. At paragraph 171, this is what 25 the Alberta Court of Appeal said: 26 A sexual assault is a major sexual 27 assault when the sexual assault is Official Court Reporters 2 1 of such a nature or character that 2 a reasonable person could foresee 3 that it is likely to cause serious 4 psychological or emotional harm 5 whether or not physical injury 6 occurs. 7 As I look at those words, I recall the 8 evidence of Kayleen Kenny who noted that the 9 victim was crying hysterically and she looked 10 scared; she never saw that look before. That 11 is enough but I do note as well the comments 12 of the learned counsel that she subsequently 13 left this jurisdiction. So I am of the 14 opinion, firstly, that the sexual assault 15 before the Court is encompassed in that 16 definition. It is a major sexual assault. 17 The significance is that according to the 18 decision of R. v. Sandercock 22 C.C.C. (3d) 19 79, the starting-point is three years' 20 imprisonment. The learned Crown attorney 21 submits that a sentence of three and a half to 22 four years would be appropriate. That's a 23 period of 42 to 48 months. Considering the 24 relevancy of the factors that I must duly 25 weigh, that recommendation by her is neither 26 unrealistic nor unreasonable. 27 Accordingly, there is an order of the Official Court Reporters 3 1 Court that pursuant to section 490.012 of the 2 Code, an order is granted that the accused 3 comply with the Sex Offender Registration Act. 4 That order will begin today and last for 20 5 years. 6 As sexual assault is a primary designated 7 offence, an order is granted authorizing the 8 taking of bodily substances that are 9 reasonably required for the taking of a DNA 10 analysis pursuant to section 487.051. 11 The mandatory firearms prohibition order 12 under section 109 of the Code is granted for 13 ten years from today's date. 14 The victim surcharge is waived. 15 Bearing in mind that Mr. Elias has already 16 served five and a half months, the sentence of 17 the Court is three years. 18 The Court stands closed. 19 ----------------------------------------- 20 Certified to be a true and 21 accurate transcript pursuant to Rules 723 and 724 of the 22 Supreme Court Rules, 23 24 25 ____________________________ 26 Lois Hewitt, Court Reporter 27 Official Court Reporters 4
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