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Abstract: Transcript of the Reasons for Sentence
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R. v. Buggins, 2014 NWTSC 24 S-1-CR2011000143 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - vs. - WILFRED LAWRENCE BUGGINS _________________________________________________________ Transcript of the Reasons for Sentence by The Honourable Justice V.A. Schuler, at Hay River in the Northwest Territories, on March 4th A.D., 2014. _________________________________________________________ APPEARANCES: Mr. M. Lecorre: Counsel for the Crown Ms. C. Wawzonek: Counsel for the Accused Official Court Reporters 1 THE COURT: Wilfred Lawrence Buggins has 2 pleaded guilty to, and now stands convicted 3 of, manslaughter. He has admitted that on 4 February 5th, 2011, near Enterprise here in 5 the Northwest Territories, he shot and killed 6 his younger brother Roy. The facts admitted 7 by Mr. Buggins are that he, his brother, and 8 others were drinking for some hours on 9 February 4, 2011. Eventually Mr. Buggins, his 10 brother Roy, and a friend Mr. Hudson ended up 11 at Mr. Buggins' cabin near Enterprise. 12 Mr. Hudson observed Mr. Buggins and his 13 brother arguing throughout the evening. 14 During an argument about money, Mr. Buggins 15 was heard to tell his brother "I should just 16 shoot you, my brother" and the brother Roy 17 replied "well I dare you". After Mr. Hudson 18 helped Mr. Buggins to his bed, Mr. Hudson 19 could hear Mr. Buggins' brother trying to get 20 Mr. Buggins to continue drinking with him. 21 At some point in the early morning hours 22 of February 5th, Mr. Buggins shot his brother 23 Roy twice in the abdomen area with a rifle 24 that belonged to Mr. Buggins. Roy was sitting 25 in a chair in the livingroom at the time. 26 Mr. Buggins says, and it is an agreed fact, 27 that he had blacked out from alcohol Official Court Reporters 1 1 consumption and does not remember what 2 occurred. He was noted to be staggering and 3 slurring his words and not making sense even 4 before they got to the cabin, and he was seen 5 by Mr. Hudson to fall down on his way to the 6 washroom when they were at the cabin. 7 When Mr. Buggins woke up early on the 8 morning of February 5th, he saw that his 9 brother was dead and he told Mr. Hudson that 10 he had shot and killed him. He was noted to 11 still be intoxicated at that time. 12 They went to Hay River where Mr. Buggins 13 went to the RCMP detachment but no officers 14 were there. He was arrested about an hour 15 later at a friend's house. All of these 16 facts, and some others, are set out in the 17 Agreed Statement of Facts filed as Exhibit S-1 18 on this sentencing. 19 Mr. Buggins is now 69 years old. He will 20 turn 70 this year. He is the fourth eldest of 21 12 children in a close family brought up in a 22 traditional lifestyle. 23 At the age of four or five, Mr. Buggins 24 and some of his siblings were taken to 25 residential school in Fort Resolution. He 26 spent six years there and his lawyer, Ms. 27 Wawzonek, has related to the Court that he was Official Court Reporters 2 1 abused there. His sisters, to whom Ms. 2 Wawzonek has spoken, believe that he has been 3 left scarred by his residential school 4 experience and that it led him to live an 5 isolated and solitary life. It was after his 6 residential school experience that Mr. Buggins 7 began to abuse alcohol by binge drinking. 8 Mr. Buggins has worked on oil rigs and in 9 mining camps but he has always had a trapline 10 to provide food and fur. He is described as 11 illiterate but intelligent. His family 12 describes him as a skilled and successful 13 hunter, as well as kind, generous, and gentle. 14 He provides meat and wood for family members 15 and helps them and others with various 16 repairs. 17 Ms. Wawzonek also reports that family 18 members say that Mr. Buggins and his brother 19 would squabble and argue while drinking 20 together. It is said that the brother Roy 21 would bully Wilfred Buggins and they would 22 have arguments about who had better trapping 23 skills. 24 Mr. Buggins has a somewhat dated criminal 25 record. He had a couple of convictions for 26 theft in the 1970s, which I consider to be 27 irrelevant to the current offence. In 1987, Official Court Reporters 3 1 he was convicted of assault, mischief and 2 careless use of a firearm, and received fines 3 and a period of probation. That was over 20 4 years ago. In 2006, he was convicted of 5 assaulting a peace officer and was sentenced 6 to time served of one day, from which I infer 7 that it was not a very serious example of that 8 offence. The record therefore carries little 9 weight, however, the past convictions for 10 assault are relevant because they also involve 11 violence or the threat of violence against 12 another person. The conviction for careless 13 use of a firearm is also relevant although it 14 is from so long ago that, as I said, it is of 15 little weight. 16 Although no victim impact statements were 17 provided to the Court, Ms. Wawzonek has 18 related to the Court things that Mr. Buggins' 19 sisters have told her. They are supportive of 20 Mr. Buggins and expressed disbelief that he 21 could have shot his and their brother. They 22 used the words "grief", "heartache", "pain" 23 and "confusion" to describe their reaction to 24 this tragedy and they express relief that 25 their mother is not still alive to know that 26 it happened. And it truly is a tragedy, one 27 that any family would have difficulty Official Court Reporters 4 1 understanding and coping with. Still, 2 Mr. Buggins' sisters hope that he will 3 eventually rejoin his family. 4 The fact that there really is no 5 explanation as to why Mr. Buggins shot his 6 brother also makes this case tragic. Ms. 7 Wawzonek indicated that the brothers were 8 accustomed to drinking together. It appears 9 that they would drink together and nothing 10 more serious than arguments would happen. 11 According to the facts that have been agreed 12 upon, when Roy Buggins dared Wilfred to shoot 13 him it was in the context of an argument over 14 money. There is no indication that it was 15 anything very serious. Unfortunately, there 16 simply is no explanation as to why this 17 happened and that must make it even more 18 difficult for the family because it makes what 19 happened so senseless. 20 As in any case, the Court has to consider 21 the mitigating and aggravating factors. 22 A guilty plea is virtually always 23 considered to have a mitigating effect on 24 sentence. In this case, the plea came in time 25 enough that the Court was able to cancel the 26 jury trial that had been scheduled on the 27 charge that Mr. Buggins was originally facing, Official Court Reporters 5 1 which was second-degree murder. So the guilty 2 plea has saved the time and resources that 3 would have gone into that trial. Crown 4 counsel concedes that the guilty plea was 5 brought forward in a timely manner and should 6 be given full credit. The guilty plea also 7 indicates that Mr. Buggins is taking 8 responsibility for the terrible thing that he 9 did, so it is a significant mitigating factor 10 in this case. 11 It is also a mitigating factor that 12 Mr. Buggins tried to turn himself into the 13 police very shortly after the shooting. 14 Although his criminal record means that 15 Mr. Buggins cannot claim to be a first 16 offender, I do take into account that at the 17 age of almost 70, he has a minimal record. 18 In my view, the fact that Mr. Buggins, who 19 is an experienced hunter and trapper, picked 20 up a gun and used it while intoxicated is an 21 aggravating factor. He well knew the dangers 22 of guns, I am sure, and I have no doubt that 23 he also knew that alcohol and guns are a very 24 dangerous and often deadly combination. And 25 although this is not a breach of trust 26 situation where the victim is dependent in 27 some way on the offender, there is an element Official Court Reporters 6 1 of breach of trust here because family members 2 are supposed to support and help each other; 3 they expect that from each other. There is a 4 form of trust between them, and Mr. Buggins 5 broke that trust when he shot his brother. 6 The maximum punishment that can be imposed 7 on a conviction for manslaughter is life 8 imprisonment. Taking the life of another 9 person is generally considered the most 10 serious offence that an individual can commit. 11 In this case, because a firearm was used in 12 the killing, Section 236(a) of the Criminal 13 Code provides that a minimum jail sentence of 14 four years must be imposed. 15 Counsel have reviewed cases from the 16 Northwest Territories that involve 17 circumstances similar to this case, and they 18 have jointly submitted four such cases. 19 Although each case and each offender are 20 different, other cases are important because 21 one of the principles of sentencing is that a 22 sentence should be similar to sentences 23 imposed on similar offenders for similar 24 offences committed in similar circumstances. 25 Based on the cases submitted, Crown counsel 26 says that a sentence of six years in jail less 27 credit for the remand time is appropriate. Official Court Reporters 7 1 Defence counsel says that a sentence of four 2 years, or close to that, less the remand time 3 is appropriate. 4 Two of the cases cited, Andre-Blake and 5 Emile, did not involve firearms and therefore 6 the four year minimum was not applicable. In 7 Andre-Blake, the offender had a lengthy 8 related record and started the drunken fight 9 which he ended by stabbing his cousin who 10 died. In Emile, the accused, who was a very 11 young man with a minor record, fought with his 12 brother, assaulted his sister, and then chased 13 after the brother with a knife and stabbed him 14 to death. In each of those cases, six years 15 was considered an appropriate sentence and was 16 imposed less credit for remand time. 17 In the Caisse case, a five year sentence 18 was imposed where the offender shot and killed 19 someone who had assaulted him in his own home. 20 There were some aggravating factors in that 21 case, including the fact that the offender had 22 a related firearms record and was prohibited 23 from possessing a firearm at the time of the 24 offence. 25 In Elias, the offender shot and killed his 26 brother and also a second person who did not 27 die. The shootings happened in the context of Official Court Reporters 8 1 an argument about the offender's son's 2 suicide, which one would infer would be a very 3 emotional subject matter for the offender. 4 Upon a joint submission for a sentence of six 5 to eight years, six years less credit for 6 remand time was imposed. 7 The offenders in Andre-Blake, Elias, and 8 Emile all entered guilty pleas as has 9 Mr. Buggins. As always, none of the cases 10 submitted are exactly the same as Mr. Buggins' 11 case and the Court has to ensure that the 12 sentence in this case takes into account the 13 specific circumstances of this case and of 14 Mr. Buggins. 15 In cases of manslaughter, the principles 16 of sentencing that are of most importance are 17 denunciation, in other words, showing how 18 society condemns and rejects the behaviour of 19 the offender; and general deterrence, meaning 20 that the sentence should serve to deter or 21 stop others from behaving this way. And 22 perhaps I should use the term discouraging 23 rather than stop because it is more realistic. 24 I do note that usually it is a younger man 25 that comes before the Court for an offence 26 like this. Rarely do we see an individual of 27 Mr. Buggins' years before the Court for Official Court Reporters 9 1 killing another person. 2 The sentence must also be proportionate, 3 which means that it should reflect the 4 seriousness of the offence and the degree of 5 responsibility of the offender. 6 I have already spoken about the 7 seriousness of this offence. 8 The degree of responsibility of the 9 offender or what is sometimes called the moral 10 blameworthiness, in this case, in my view, is 11 significant. Mr. Buggins, as I have said, is 12 used to handling guns, he has been drinking 13 for a long time, so there can be no question 14 that he was aware of the dangers of mixing the 15 two. 16 I accept that Mr. Buggins has been 17 scarred, that likely he has been traumatized 18 by his residential school experience, but it 19 would be speculation to say that that is what 20 actually led to the shooting. As terrible as 21 his time at residential school was for 22 Mr. Buggins, he has been able to live, for the 23 most part, a law-abiding life despite that 24 experience. 25 We know from the agreed statement of facts 26 that has been filed, and the facts that are 27 admitted, that Mr. Buggins shot his brother Official Court Reporters 10 1 not once but twice while Roy was sitting in a 2 chair. The only logical conclusion, in my 3 view, is that Wilfred Buggins was angry at 4 Roy. Maybe he also harbors anger for what 5 happened to him at residential school. But in 6 any event, fuelled by alcohol on this 7 particular occasion, he did not control that 8 anger and he shot his brother. The exact 9 cause of his anger, I suppose, will never be 10 known. It may have been the argument over 11 money, it may have been the dare, it may have 12 been because he wanted to sleep and Roy 13 Buggins wanted him to drink. Whatever it was, 14 sadly there is not anything very unusual or 15 unique in those circumstances. And because of 16 them, any sentence that I impose must also act 17 as a deterrent to Wilfred Buggins, to deter 18 him from drinking and using a firearm or even 19 being around firearms when he has been 20 drinking. 21 Since Mr. Buggins is aboriginal, 22 Section 718.2(e) of the Criminal Code requires 23 that I consider that aspect of his background. 24 This is usually referred to as the Gladue 25 principle, which requires that a Court 26 consider the unique systemic or background 27 factors which may have played a part in Official Court Reporters 11 1 bringing Mr. Buggins before the Court for this 2 offence and the types of sentencing that may 3 therefore be appropriate. 4 Unlike some cases, where aboriginal 5 offenders grew up in families or households 6 where alcohol and violence are prevalent, here 7 it appears that Mr. Buggins' family is close 8 and supportive and was observant of a 9 traditional lifestyle. There is no indication 10 that alcohol or violence were issues in the 11 family as Mr. Buggins was growing up. 12 However, the residential school experience is 13 one that affects many aboriginal families and 14 individuals, and the information before the 15 Court is that it did affect Mr. Buggins in a 16 very negative way. So that, as described by 17 his sisters, appears to have scarred him. I 18 accept that it has likely played a role in his 19 being before the Court for this offence, 20 certainly in part by contributing to his abuse 21 of alcohol. However, the principles of 22 denunciation and deterrence, to which I have 23 already referred, have to be taken into 24 account notwithstanding Mr. Buggins' difficult 25 history. Both the Gladue and Ipeelee 26 decisions of the Supreme Court of Canada tell 27 courts that aboriginal heritage must be Official Court Reporters 12 1 considered in determining the appropriate 2 sentence however both decisions also indicate 3 that in cases of serious and violent offences, 4 sentences for aboriginal offenders are not 5 likely to be very different from those imposed 6 on non-aboriginal offenders and that is 7 because principles such as denunciation and 8 deterrence are considered to be paramount in 9 such cases. 10 Another factor that must be considered is 11 the time that Mr. Buggins has spent in remand, 12 which both counsel agree amounts to three 13 years and one month. 14 Section 719 of the Criminal Code says that 15 credit for remand time is one day for each day 16 in custody. Notwithstanding that, 17 Section 719(3.1) provides that up to one and a 18 half days for each day in custody may be 19 granted if the circumstances justify it. And 20 there is case law, including the case of Green 21 2013 NWTSC 20 from this Court, that says that 22 the circumstances need not be exceptional to 23 justify more than one for one credit. The 24 fact that a prisoner while on remand has 25 behaved in such a way that he would have 26 earned remission had he been a serving 27 prisoner is something that the Court can take Official Court Reporters 13 1 into account as was done, for example, in the 2 case of Inuktalik 2013 NWTSC 75. 3 Crown counsel has quite fairly left it to 4 Ms. Wawzonek to attempt to persuade the Court 5 that Mr. Buggins should receive enhanced 6 credit. Crown counsel takes no position on 7 whether the credit should be more than one to 8 one. 9 Ms. Wawzonek has relayed information 10 obtained from Mr. Buggins' caseworker at North 11 Slave Correctional Centre. That information 12 is that there have been no incidents which 13 would affect Mr. Buggins' eligibility for 14 remission had he been a serving prisoner. 15 Also, he has not been eligible for any of 16 the core programming that would be considered 17 relevant to remission. 18 A further circumstance of Mr. Buggins' 19 remand time is because of his age, he has been 20 kept in a small unit housing, as I understand 21 it, those with medical or mental health 22 issues. He has therefore been relatively 23 isolated and without much opportunity to move 24 around. 25 I do accept that Mr. Buggins' outdoor 26 traditional lifestyle would make it difficult 27 for him to adjust to being confined. Official Court Reporters 14 1 Three years is a very long time to be on 2 remand no matter what the circumstances, and I 3 think it is fair to say that it is unusually 4 long in this jurisdiction. In all the 5 circumstances, I find that a credit of one and 6 half is justified and therefore Mr. Buggins 7 will be credited with four and a half years on 8 his sentence. 9 I will deal now with the DNA and firearms 10 orders that were sought by the Crown. 11 Manslaughter is a primary designated 12 offence so a DNA order is mandatory, and I 13 make that order for the taking of Mr. Buggins' 14 DNA in the usual terms. 15 A firearm prohibition order is also 16 mandatory pursuant to Section 109 of the 17 Criminal Code. Now, Crown counsel seeks a 18 lifetime prohibition however there is no 19 information before me indicating that notice 20 was given about that in this case and as I 21 read the section, it is either a ten year 22 prohibition or if certain circumstances 23 prevail, none of which appear to be relevant 24 in this case, then it can be a lifetime 25 prohibition. In light of Mr. Buggins' age, I 26 have decided that I will grant the ten year 27 prohibition. Official Court Reporters 15 1 The next question is whether I should 2 grant an exemption pursuant to Section 113 of 3 the Criminal Code. Crown counsel opposes an 4 exemption, defence counsel asks for it so that 5 Mr. Buggins can at least hunt ducks and small 6 game. 7 I have read the cases submitted by Ms. 8 Wawzonek. I note that none of them involved 9 killing another person with a gun. I 10 recognize that being banned from possessing 11 any firearms will have a detrimental effect on 12 Mr. Buggins' ability to provide food for 13 himself and his family, but I have decided 14 that he will have to cope with that as best he 15 can. The consequences of his having a gun 16 were obviously deadly in this case and the 17 reason that this happened is really, as I have 18 already indicated, inexplicable so I do not 19 believe that in this case granting an 20 exemption is justified or advisable. 21 The victim surcharge will be waived due to 22 hardship since Mr. Buggins has no income and 23 considering that at the date of the offence, 24 the Court had discretion to waive it. 25 As to the sentence to be imposed, I have 26 considered carefully everything that has been 27 said, as well as the principles that govern Official Court Reporters 16 1 sentencing. I do take into account 2 Mr. Buggins' age. His age also means that he 3 had the life experience and the knowledge to 4 know that guns and alcohol do not mix and to 5 control his behaviour in a way that a younger 6 man or a young man might not yet have learned. 7 I do not see any basis upon which I can 8 logically distinguish this case to any degree 9 from the Andre-Blake, Elias, and Emile cases 10 that have been cited by counsel. In my view, 11 this case is just as serious as those cases. 12 Stand please, Mr. Buggins. 13 Mr. Buggins, you now have to live with 14 what you did and at your stage of life, which 15 is a time when many people tend to look back 16 on their lives and look at what they have done 17 in their lives, I am sure it will weigh very 18 heavily on you that you killed your brother 19 and caused such pain to your family members. 20 And I don't have any doubt that that in itself 21 is a form of punishment for you. Nothing the 22 Court does can obviously bring back your 23 brother or make his death any less tragic for 24 your family, and the Court can only offer 25 condolences to the family for this terrible 26 thing that has happened. It may be that you 27 can make some amends to your family - whether Official Court Reporters 17 1 it is by giving up alcohol, whether it is by 2 helping them out or whether it is simply by 3 acknowledging to them the support that they 4 have given you throughout this matter. 5 The sentence that I am imposing in this 6 case is six years in jail. With a credit of 7 four and a half years, that means that you 8 have one and a half years left to serve. 9 You may sit down, Mr. Buggins. 10 The firearm prohibition order therefore 11 will begin today and expire on a date that is 12 ten years after Mr. Buggins' release from 13 imprisonment. 14 I will direct that the warrant be endorsed 15 with the recommendation that Mr. Buggins be 16 given access to alcohol and anger management 17 counselling. 18 There will also be a recommendation that 19 he serve his sentence in the Northwest 20 Territories so that he can continue to benefit 21 from the support of his family. As to where 22 in the Northwest Territories he serves his 23 sentence, in my view that is up to the 24 correctional authorities. I am not going to 25 make a direction or a recommendation about a 26 particular location but I will direct that the 27 warrant be endorsed with the Court's Official Court Reporters 18 1 recommendation that he should be permitted to 2 serve the sentence at a facility that provides 3 him with the maximum opportunity for in-person 4 contact with family members. And I point out 5 that that is just a recommendation. It is up 6 to the correctional authorities to make that 7 decision. 8 I didn't recall, Ms. Wawzonek, any 9 comments from you on the forfeiture order that 10 was submitted so can I assume that that is 11 consented to? 12 MS. WAWZONEK: Yes, Your Honour. 13 THE COURT: That's fine, so that order 14 will issue as well. 15 Is there anything that I have overlooked, 16 counsel? 17 MR. LECORRE: Not from the Crown's 18 perspective. 19 MS. WAWZONEK: No, Your Honour, thank you. 20 THE COURT: Thank you very much for your 21 resolution of this difficult case. I hope, 22 Mr. Buggins, that you will reconcile with your 23 family and that you will finish serving your 24 time and get back to being a productive 25 person. We will close court. 26 ------------------------------------- 27 Official Court Reporters 19 1 Certified to be a true and accurate transcript pursuant 2 to Rules 723 and 724 of the Supreme Court Rules, 3 4 5 6 7 ____________________________ 8 Lois Hewitt, Court Reporter 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Official Court Reporters 20
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