R. v. Geetah, 2015 NUCJ 10

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Geetah, 2015 NUCJ 10 Date: 20150320 Docket: 03-11-11 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Elee Geetah ________________________________________________________________________ Before: The Honourable Mr. Justice Sharkey Counsel (Crown): B. MacLaren Counsel (Accused): J. Morton Location Heard: Cape Dorset, Nunavut Date Heard: January 29, 2015 Matters: Criminal Code , s. 236, s. 244.2(1)(a), s. 244.2(1)(b), s. 88(1) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) DISCLAIMER PAGE Anonymized Judgment Disclaimer:

This judgment has been anonymized at the discretion of the authoring Justice to protect vulnerable parties. Letters have been assigned at random. Table of Contents REASONS FOR JUDGMENT 1 I. INTRODUCTION 4 II. PROCEDURAL BACKGROUND 4 III. THE SPECIFIC CHARGES & SENTENCES IMPOSED 5 IV. THE FACTS OF THE OFFENCES 7 V. THE PERSONAL CIRCUMSTANCE OF THE OFFENDER 11 VI. THE POSITION OF THE PARTIES 12 A. Crown 12 B. Defence 17 VI. ANALYSIS & CONCLUSIONS 21 I.

INTRODUCTION [ 1 ] On January 29, 2015, in Cape Dorset, I imposed a fifteen (15) year term of imprisonment upon Elee Geetah. [ 2 ] I did so after hearing the comprehensive and helpful submissions of counsel. [ 3 ] I felt it was important that the accused, his family, and the community all know the sentence imposed before the Court left the community. [ 4 ] I did, however, advise counsel that I would provide written reasons for judgment to follow shortly. [ 5 ] Accordingly, what follows are my reasons for the fifteen year sentence imposed. II.

PROCEDURAL BACKGROUND [ 6 ] I sentenced Elee Geetah on a charge of manslaughter, as well as numerous charges involving the use and possession of firearms. [ 7 ] All the charges arose from an incident, or series of events, which took place on the same day. [ 8 ] Originally, Mr. Geetah was charged with murder. He elected to be tried by a judge without jury and the trial proceeded before me. [ 9 ] At trial, I found Mr. Geetah not guilty of murder, but guilty of the lesser included offence of manslaughter.

[ 10 ] Mr. Geetah has always admitted the killing. [ 11 ] It is not in dispute between the parties (Crown and Defence) that from early in the proceedings Mr. Geetah would have pleaded guilty to manslaughter had the Crown allowed it by agreeing to such a plea. [ 12 ] The Crown, however, and quite legitimately, would not consent to a manslaughter disposition and so the case proceeded to trial. [ 13 ] Similarly, it is not in dispute that Mr. Geetah had intended, from early on in the proceedings, to plead guilty to some of the firearms charges he faced.

The pleas in relation to these charges were simply held in abeyance or put off pending the outcome of the murder trial. [ 14 ] At the conclusion of the murder trial, the Crown presented an Indictment containing the four most appropriate firearms charges to which Mr. Geetah then pleaded guilty. III. THE SPECIFIC CHARGES & SENTENCES IMPOSED [ 15 ] The specific offences, and the sentences imposed, are as follows: 1) Manslaughter, contrary to

section 236 of the Criminal Code, RSC 1985, c C-46 [Criminal Code] [Indictment # 2]: Ten (10) years imprisonment. 2) Intentional discharge of a firearm into a residence, contrary to Criminal Code s. 244.2(1) (

a) involving Constable Robert Driscoll’s house [Indictment # 3, count 3]: Five (5) years imprisonment to be served consecutive to the term of imprisonment imposed for manslaughter. 3) Intentional discharge of a firearm while being reckless as to the life and safety of others, contrary to Criminal Code s. 244.2(1) (b), involving victims A.E., G.P., and E.P. [Indictment # 3, count 1]: Four (4) years imprisonment to be served consecutive to the term of imprisonment imposed for the manslaughter sentence, but concurrently with all other sentences imposed. 4) Intentional discharge of a firearm while being reckless as to the life and safety of others, contrary to Criminal Code s. 244.2(1) (b), involving victims M.P. and S.L. [Indictment # 3, count 2]: Four (4) years imprisonment to be served consecutive to the manslaughter sentence, but concurrently with all other sentences imposed. 5) Possession of a weapon (firearms and ammunition) for a purpose dangerous to the public peace, contrary to Criminal Code s. 88(1) [Indictment # 3, count 4]: One (1) year imprisonment to be served consecutive to the manslaughter sentence but concurrently with all other sentences imposed. [ 16 ] The total sentence imposed for all offences is fifteen (15) years.

Further, and to be clear: while the firearm offences as a group are imposed consecutive to the manslaughter sentence, they are to be served concurrently with each other. The offence contrary to Criminal Code s. 244.2 (1) (a), involving the Driscoll residence is the so-called lead firearm offence where I imposed the five (5) year sentence to run consecutive to the manslaughter sentence. All other firearm sentences are to be served concurrently with this ‘lead’ firearm offence, and thus the aggregate sentence is fifteen (15) years. [ 17 ] Regarding remand credit, the situation is as follows. Mr.

Geetah’s actual time served on remand was four (4) years and 3 months. The Crown did not dispute the Defence request for enhanced remand credit at a ratio of one point five (1.5) to one (1). Accordingly, I granted such enhanced remand for each full year served and non-enhanced credit for the additional three (3) months. Thus, the total remand credit granted was six (6) years and three (3) months. [ 18 ] The net sentence to be served by Mr.

Geetah, moving forward from January 29, 2015, is nine (9) years less three (3) months, or, more precisely as a positive calculation, eight (8) years and nine (9) months. [ 19 ] Prior to the incident which gave rise to these charges, Mr. Geetah had no record of previous conviction.

[ 20 ] However, all the offences, save and except the charge of possession of a firearm in breach of the public peace contrary to Criminal Code s. 88 (1) , have minimum sentences which must be imposed by the Court. [ 21 ] The manslaughter charge attracts a four (4) year minimum sentence pursuant to Criminal Code s. 236 (

a) because a firearm was involved. [ 22 ] The two (2) offences of intentionally discharging a firearm while being reckless as to the life and safety of another person contrary to Criminal Code s. 244.2(1) (

b) carries a minimum sentence of four (4) years for a first offence. [ 23 ] Similarly, the offence of discharging a firearm into a residence knowing that or being reckless as to whether another person is in the residence contrary to Criminal Code s. 244.2(1) (a), also carries a minimum sentence of four (4) years. [ 24 ] I pause to note that during the hearing, both Crown and Defence counsel were of the belief that the offence contrary to Criminal Code s. 244.2(1) (a) (shooting into a residence) carried a minimum sentence of five (5) years imprisonment.

Indeed it does, but only if a restricted weapon is used or if a criminal organization is involved, which is not the case here. I did not take time, during the hearing, to clarify and correct counsel’s misunderstanding. I should have done so, but I note as well that this misunderstanding on counsel’s

part in no way affects the end result of the sentences imposed. [ 25 ] In addition to the sentences imposed, I also made various Ancillary Orders. I ordered that Mr. Geetah provide a DNA sample. I made a forfeiture order respecting the firearms involved. I made a fifteen (15) year firearm order pursuant to s. 109 of the Criminal Code , with no exception for subsistence hunting. Finally, because of the date of the offences the law allowed me to waive the victim fine surcharge, which I did given the length of the sentence imposed. IV.

THE FACTS OF THE OFFENCES [ 26 ] A comprehensive review of the facts regarding the manslaughter verdict is contained in my judgment respecting Elee’s criminal liability: R v Geetah, 2014 NUCJ 23 , [2014] Nu J No 16 (QL) . [ 27 ] Nonetheless, in order to give context to the sentences imposed, I feel it necessary to briefly revisit the facts of the manslaughter scenario. [ 28 ] Further, during the trial the only evidence about what Elee did in the aftermath of the killing came from Elee’s testimony and his statement to Constable Daley.

At the sentencing hearing a week or so ago, however, the Crown provided detail about this from the perspective of the victims and the community. [ 29 ] Elee shot and killed his older brother, Jamesie, October 10, 2010, in Cape Dorset. Elee was 19 years old at the time. Jamesie was 23. The killing took place in the family’s two story home, in the early afternoon, shortly after lunch. Elee and Jamesie were in the house, along with their siblings, and their uncle. The parents were not home at the time. [ 30 ] The fatal shot was a single blast from a 20 gauge pump action shotgun.

It hit Jamesie on the top right side of his head, and death was instantaneous. Everybody was sober. There was no alcohol or other intoxicants involved. [ 31 ] In the year or so before the shooting, Elee had been having suicidal thoughts – in particular because of the death of his best friend who had committed suicide. In the hour or so before the shooting, Elee had been having a bad day. He was not getting along with people and he had done some minor damage to the house.

[ 32 ] Eventually, Elee just decided to leave. However, Jamesie did not want Elee to leave the house, likely because he wanted Elee to wait until their parents came home and account for the damage he had done. [ 33 ] As Elee was going out the door he was surprised by Jamesie, who punched him, jumped on him, and pinned him to the floor. A small scuffle ensued, but their uncle, Ohituq, pulled the boys apart and put an end to it. [ 34 ] Jamesie’s ambush, however, set Elee off drastically into a mad rage.

Elee said nothing, but he did a lot in the space of only a few minutes. [ 35 ] There were a number of firearms kept in the laundry room on the first floor of the house. Elee went into the laundry room, picked up and loaded the 20 gauge pump action shotgun. However, he put only 2 shells into the magazine. [ 36 ] After the scuffle with Elee, Jamesie had gone into the kitchen. He was preparing some food and boasting about how easily he had been able to put Elee down. It does not appear, however, that Elee heard any of this boasting. [ 37 ] Elee was pre-occupied with something else.

He walked out of the laundry room and into the living room, at the same time working the pump action and moving a live shell into the firing chamber. [ 38 ] From where he stood in the living room, slightly behind or just to the side of a support column in the house which was used as a coat rack, Elee fired a shot in the general direction of the front door of the house, which is adjacent to the kitchen entrance. [ 39 ] Elee testified that the reason he fired the shot was to scare everybody and get them to run out of the house after which, he said, he intended to use the remaining round in the shotgun to kill him. [ 40 ] The sound of a round being chambered in a pump action shotgun is something that Jamesie was familiar with.

Jamesie had barely (if at all) stepped out of the kitchen, when, almost simultaneously, Elee pulled the trigger, from about 10 to 14 feet away. [ 41 ] Jamesie went down immediately. Elee’s uncle, Ohituq, and his younger brother, Alex, rushed to take the shotgun away from Elee, but he would not let go. In the struggle, the shotgun discharged accidentally, but did not hurt anyone.

Eventually, the shotgun was pried away from Elee and he implored his uncle to kill him. [ 42 ] Everybody then fled the house leaving Elee alone with his deceased brother Jamesie. [ 43 ] Elee then went upstairs to his parents’ bedroom where his father had a number of high powered rifles stored away.

Elee then began firing shots out the window with these various different high calibre firearms (one of which, a 223, had a telescopic sight). [ 44 ] The house itself is on high ground in Cape Dorset and, from his vantage point at the second story window, Elee had a panoramic view of the community. [ 45 ] Elee fired a number of rounds; the exact figure is not clear, but certainly he fired more than a dozen, and perhaps as many as thirty shots. [ 46 ] It is not in dispute that Elee was a good shot, nor is it in dispute that he was not actually trying to shoot anyone walking along the street.

[ 47 ] Elee testified that he fired a number of rounds intentionally in front of and beside some women who were walking on the roadway. These rounds hit either the ground in front of the women, or a wooden stairway beside them – which was exactly where Elee was aiming. [ 48 ] Elee also fired a number of shots at two trucks. The driver of the first truck, S.L., had parked or pulled over when he saw Royal Canadian Mounted Police [RCMP] officers taking up defensive positions.

S.L. heard a shot and then a second shot which hit the front side of his truck, and then, as he backed away from the scene, another round penetrated the front grill. [ 49 ] At this point, S.L. was also warning other people to stay away when a second truck, driven by M.P., pulled up. M.P. stepped out of his truck briefly to see what was happening, at which point a round hit the side of his vehicle fairly close to M.P.’s head.

Then, as M.P. got back into his truck, Elee fired 4 rounds into the vehicle itself. [ 50 ] A.E. is a young woman who was just walking over to a friend’s place, with a baby in her amauti, when all of a sudden gunfire erupted and shots started landing in front of and behind her. A.E. was fearful the baby had been shot, but even in her panicked state, and as shots continued to rain down near her, she was able to take the baby from the amauti and run to a nearby house for safety. [ 51 ] Another woman in the vicinity, E.P., heard shots and from her front porch warned A.E. to get out of the street.

E.P. was concerned about the whereabouts and safety of her children and just as she came down the steps of her porch she was hit with splintered wood from a bullet’s impact on the stairs. [ 52 ] G.P. was another woman who was just walking along the street; people reported that they saw G.P. running for cover as bullets hit the ground around her. [ 53 ] This shooting spree went on for some time. Again, Elee was a good shot – he picked off a raven some 200 yards away and he also killed a dog.

At one point it was believed that this dog was a family pet, but this turned out not to be the case, it was apparently a loose or stray dog. [ 54 ] The word was out within the community that there was a shooter on the loose; indeed, in such a small community people could hear the shots. But beyond that they really didn’t know who the shooter was or where he was. People phoned and used social media to find out what was going on and some families even loaded their own firearms in preparation for the worst. [ 55 ] There were 3 RCMP officers stationed in Cape Dorset.

Two of them had taken up observation positions outside the Geetah residence as Elee fired away. [ 56 ] The RCMP residential compound is easily visible from the Geetah house and Elee had a bird’s eye and clear view of one of these houses – Constable Driscoll’s house. [ 57 ] Constable Driscoll was one of the 2 officers watching the Geetah house. Constable Driscoll’s wife and 2 small children were at home, along with the wife of the other officer who was with Constable Driscoll watching the Geetah house. [ 58 ] Elee fired a shot with one of the high powered rifles into the Driscoll home.

The bullet went through an exterior wall, through the kitchen, and into the opposite exterior wall. Luckily, no one was in the kitchen. [ 59 ] At his trial, Elee testified that the reason he fired all these shots was to create a dangerous situation in the hope that the RCMP would feel they needed to kill him. [ 60 ] In addition to firing shots out the window, Elee also spoke briefly on the phone with his older sister and her husband; he also chatted with them online for a short time. He told them he was sorry and wanted to know where his mother was. He also told them he was feeling suicidal.

They told him to give himself up to the police.

[ 61 ] What followed over the course of a few hours was an all too typical stand-off as police tried to persuade Elee to surrender himself into custody. [ 62 ] The stand-off came to an end without further incident as an RCMP crisis negotiator was able to persuade Elee to turn himself in. V. THE PERSONAL CIRCUMSTANCE OF THE OFFENDER [ 63 ] Elee Geetah was 19 years old when he committed the offences; he is now 23 years old. He comes before the Court with no record of previous conviction.

He was, however, found guilty of simple assault in August of 2011, as a result of an incident that occurred while he was on remand. [ 64 ] Defence counsel tells me that Elee is from a large family – his father, David, and his mother, Saila, have 7 other children in addition to Elee.

At one point Elee was adopted out to his paternal grandmother, but returned home to live with David and Saila (which is where he was living when he committed the offences). [ 65 ] Defence counsel tells me that Elee’s father, David, is a product of the residential school system, and that when Elee was young he saw a lot of alcohol abuse in the family to the point where he would have to leave home for a few days.

Defence counsel also advises that Elee himself had a problem sniffing gas when he was young. [ 66 ] In recent years, however, the Geetah home appears to have settled down, and Defence counsel describes it as a good home – a household well attuned to the traditional Inuit life, and the kind of place where, as counsel says, “prior to October 10, 2010, you wouldn’t expect would have any problems involving the police.” Defence counsel tells me that prior to that tragic day, Elee would regularly attend church with the rest of his family. [ 67 ] Elee’s father David makes a living from carving and his mother Saila takes care of the household.

Indeed, on the very morning of Jamesie’s tragic death, the family was down at the beach readying their boats for a trip the next day. [ 68 ] Counsel describes Elee, prior to October 10, 2010, as a law abiding, but inexperienced young man – essentially a good boy. I am told that Elee did relatively well in school, and had fairly regular employment prior to October 10, 2010. [ 69 ] Defence counsel also noted (and we heard much about this at the trial) how the loss of his closest friend, to suicide in 2009, had left a serious mark on Elee’s psyche. VI. THE POSITION OF THE PARTIES A.

Crown [ 70 ] First, respecting manslaughter, the Crown acknowledges the finding of the Court at trial, that when Elee fired the fatal shot he did not intend to kill Jamesie, and therefore in law, he did not have the required intent for murder. [ 71 ] Nonetheless, the Crown says that up to that point – before he pulled the trigger - what Elee did was done deliberately, knowingly, and when he was completely sober.

This, says the Crown, should serve to aggravate the sentence. [ 72 ] Specifically, the Crown notes how, as a result of his anger, Elee went to the laundry room, chose his weapon, loaded it, and stepped into the living room with the intention of firing the shotgun off inside the house.

[ 73 ] Indeed, the Crown notes that Elee’s expressed intention was to scare his family members (his brother Jamesie, his younger siblings, and his uncle Ohituq) out of the house by firing the shotgun. [ 74 ] The Crown says that Elee’s selfish and deliberate behavior was something that he could have simply put a stop to at any time. [ 75 ] It is within this deliberate context, says the Crown, that the fact situation of this particular manslaughter may be fairly characterized as “near murder.” [ 76 ] The Crown also notes that the domestic aspect of the case should also serve to aggravate the sentence.

By analogy, the Crown suggests that the Court should adopt or embrace the recent judicial trend towards increasingly higher sentences for cases of spousal manslaughter, as evidenced, for example, in the recent case of R v Peter, 2014 NUCJ 28 [CanLII], [2014] Nu J No 26 (QL) [Peter] . In that case, the accused, Peter, was a repeat or serial spousal assault perpetrator. Eventually, he killed his spouse and his case proceeded to trial for murder.

At trial he was convicted of manslaughter, and given a fifteen (15) year sentence. [ 77 ] I pause to note that respecting my reference to any other case precedents, where I reference the sentence or sentences imposed, I do so without any consideration of what time may have been, at the end of the day, deducted from the sentence as a result of time served on remand. [ 78 ] The Crown also suggests that sentences imposed for manslaughter (particularly where firearms are used in a domestic context) should reflect the statistical disparity in the homicide rate between Nunavut and the rest of Canada, and that sentences for this type of offence should be increased in response to such increasing tragedy. [ 79 ] The Crown cited homicide rates during the sentencing hearing and Defence counsel took no issue with the numbers or the proposition that the Court could, at least to a certain limited extent, factor this statistical information into the ultimate sentence. [ 80 ] The Crown cited statistics from 2011.

But I would note, for example, that for 2013, Nunavut’s homicide rate, expressed as a per capita ratio, was 11.24 per 100,000 of the population. Canada’s rate, on the other hand, stood at 1.44 per 100,000. [ 81 ] It is the Crown’s position that the legal climate has changed since the case of R v Elias, 2006 NWTSC 41 [CanLII], 70 WCB (2d) 869 [Elias] , one of the authorities relied upon by the Defence. In that case, the forty-two (42) year old accused, Elias, in a drunken rage, shot and killed his younger brother and wounded another man. He also had a previous, but relatively minor, criminal record. Mr.

Elias pleaded guilty and received a sentence of six (6) years imprisonment. [ 82 ] It is the Crown’s position that the sentence imposed must, from a denunciatory and deterrent standpoint, reflect the proliferation in the last decade of firearm crime in Cape Dorset. [ 83 ] Accordingly, in relation to the offence of manslaughter, the Crown urges the Court to impose a term of imprisonment of between eight (8) to ten (10) years. [ 84 ] The Crown says their position respecting an eight (8) to ten (10) year sentence for the manslaughter offence is attenuated by the fact that this young accused faces four (4) other firearms offences, three of which carry minimum four (4)-year sentences. [ 85 ] The Crown’s position respecting these other offences is further attenuated by the principle of global sentencing.

The Crown is of the view that the sentences imposed upon Elee for his shooting rampage should run consecutive to the manslaughter sentence, but concurrent to each other. [ 86 ] From a legal perspective, the Crown is of the view that while the shooting from the second story window is proximate in time to the manslaughter, it is a sufficiently separate endeavor on Elee’s part to merit the imposition of a consecutive sentence.

[ 87 ] The Crown also makes specific note of how the entire community was terrorized as a result of Elee’s shooting spree.

In this regard, I have also had the advantage of reading the victim impact statements of the some of the women who were out in the street when Elee started firing. [ 88 ] Further, and specifically in relation to Elee’s decision to fire a shot into an RCMP residence, the Crown says the sentence imposed for this offence must reflect the new reality in Nunavut of an alarming increase in attacks upon police detachments and residences with firearms. [ 89 ] In this regard, the Crown reminds the Court of two notorious cases - the case of R v Lyta, 2013 NUCA 10 [CanLII], 301 CCC (3d) 486 [Lyta] , and the case of R v Utye, 2013 NUCJ 14 [CanLII], [2013] Nu J No 18 (QL) [Utye] , from Cape Dorset’s neighbouring community, Kimmirut. [ 90 ] In Lyta , what happened was that the only two members of the RCMP stationed in Kimmirut were awakened during the night, along with members of their families, when shots were fired into their residences (adjoining units in a duplex).

An RCMP officer, his wife, and child were present in each residence. The families took shelter in the safest part of the house until the shooting stopped, then spent another two to three terrifying hours trapped in their homes awaiting the arrival of help from Iqaluit. Seven (7) of the eleven (11) shots fired by the accused, David Lyta, from his 22 caliber rifle hit the residences. [ 91 ] The accused, David Lyta, was 22 years old at the time, and had a minor criminal record; prior to this shooting rampage he had a good relationship with the RCMP.

He was suicidal and drunk when he fired the shots. [ 92 ] He was charged with the same offence as Elee Geetah – namely, shooting into a residence knowing or being reckless as to whether it was occupied contrary to s. 244.2(1) (

a) of the Criminal Code . Lyta pleaded guilty and was given (on an appeal by the Crown) a five (5) year prison term. [ 93 ] The other Kimmirut case of Utye has more severe facts than Lyta. The accused, Joe Utye, positioned himself on a hill overlooking the police detachment in the early hours of the morning and, in a drunken rage, opened fire with a high powered 303 caliber rifle; thirteen (13) shots penetrated the detachment, and seven (7) penetrated police vehicles. The shots penetrated doors and walls with ease; bullets found their way into the kitchen, bathroom, and offices of the detachment.

There were two officers and a youth inside at the time; they could only hunker down in fear, and wait out the shooting. They had summoned help from Iqaluit, but it would take 3 hours to arrive; minutes seemed like hours to the victims of this attack. Eventually, Joe Utye ceased firing and a number of citizens risked their lives as they approached and subdued Utye as he walked home. [ 94 ] Joe Utye was 22 years old at the time of the offence. He had a youth court record, however, for pointing a firearm, uttering threats, and assault with intent to resist arrest. All 3 of these offences involved police officers.

Prior to getting a rifle and ammunition, Utye had consumed 26 ounces of vodka as well as some beer. He pleaded guilty to the offence of recklessly discharging a firearm into a building, and received a seven (7) year prison term. [ 95 ] The Crown urges the Court to impose a similar sentence on Elee Geetah. Namely, a seven (7) year jail term for the offence contrary to Criminal Code s. 244.2(1) (

a) for shooting into Constable Driscoll’s residence. The Crown says that this sentence should be imposed consecutive to the sentence of eight (8) to ten (10) years which are suggested as the appropriate range years for the manslaughter charge. [ 96 ] In keeping with the need for restraint within the context of global sentencing, the Crown then urges that the remaining firearm sentences be imposed concurrently to the offence of shooting into the house. The Crown suggests that these sentences should be imposed as follows. For the offence contrary to Criminal Code s. 244.2(1) (

b) involving the occupants of the 2 trucks, the Crown suggests a six (6) year prison term. For the offence contrary to Criminal Code s. 244.2(1)(

b) involving the three women on the roadway, the Crown suggests a five (5) year prison term. And for the offence contrary to Criminal Code s. 88(1) of having a weapon for a purpose dangerous to the public peace, the Crown suggests a one (1) year term of imprisonment. [ 97 ] In the end result, the Crown position globally, for all offences, is for a term of imprisonment of between fifteen (15) to seventeen (17) years.

[98] The Crown also notes that there are two (2) mandatory ancillary orders required. First, an order requiring the accused to provide aDNA sample, and second, a firearm prohibition which the Crown suggests should be for life. The Crown also asks the Court to considerthe victim fine surcharge, but points out that the date of the offence allows for a waiver of the surcharge. [99] Respecting Elee’s shooting spree generally, the Crown quite accurately makes note of the inherent danger of ricochet when a bulletfrom high powered rifles makes impact with the ground, or enters a vehicle, or a house.

The Crown suggests the Court should take littleheed of the fact Elee was a good shot and did not try to hit anyone, nor the fact that his motive for the shooting spree was to commit whathas come to be called ‘suicide by police’. The Crown says that such rationalization and excuse should not deter from the seriousness ofreal danger as Elee fired the shots, nor the terror that he evoked among the good citizens of Cape Dorset.

Indeed, the Crown says bluntlythat as Elee fired away, from his perch up on the second story of the house, there was no one in the community who was not terrorized. [100] Finally, the Crown notes that Elee’s shooting spree should be viewed within the context of an ever increasing frequency of sucharmed stand-offs in Nunavut and that this should aggravate the sentence. Further in this regard, the Crown notes that many of thesestand-offs end without any shots fired at all – whereas in Elee’s case we have as many as two dozen shots fired. B.

Defence [101] Respecting manslaughter, Counsel points out that the Defence position does not differ materially from the Crown’s position for aneight (8) to ten (10) year period of imprisonment. [102] The Defence, however, urges the Court to a consider range of between six (6) to eight (8) years. [103] Defence counsel acknowledges that the sentencing principles of deterrence and denunciation are certainly paramount in a case suchas this, but nonetheless urges restraint for a number of mitigating reasons. [104] First, Defence Counsel notes the youth of the offender and emphasizes that Elee was only 19 years old when he committed theoffences.

Further, that his antecedents show not the slightest disposition for violence. Counsel describes Elee, prior to this incident, as alaw abiding but immature youth – essentially as a good boy. [105] Defence counsel acknowledges the limited application, in serious cases such as this, of the remedial provisions of section 718(2)(e)of the Criminal Code.

Nonetheless, Defence counsel suggests that the spirit of these provisions, as they have been embraced andexplained by our Supreme Court of Canada in R v Gladue, (SCC), [1999] 1 SCR 688, [1999] 1 SCR 688 (QL)[Gladue], and R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433 [Ipeelee], must be brought into play in this case at least to some extent. [106] In this regard, counsel notes that Elee’s father, a product of the residential school regime, struggled with alcohol and how thisaffected Elee as a young boy, to the point where Elee himself resorted to sniffing gasoline. [107] Defence counsel also notes that Elee has always taken responsibility for the killing, and has never denied the details of his shootingspree.

Counsel suggests that the situation is much akin to the entry of a guilty plea. [108] In this regard, Defence counsel says that his client is truly remorseful for killing his brother, and now, with the passage of time andsome insight into his behavior after the killing, is sorry too that he terrorized the members of his own community. [109] I pause to note that Elee was afforded the opportunity, prior to being sentenced, to address the Court.

He did so briefly, but in myview sincerely, to the point where I believe his remorse is real. [110] Defence counsel does agree that the family context of the killing is disturbing, but draws a distinction between this case and casesof domestic spousal manslaughter where often a positon of trust serves to aggravate the crime.

[ 111 ] Further, the Defence disputes the Crown characterization of this manslaughter case as factually akin to ‘near murder.’ [ 112 ] In this regard, the Defence urges the Court to focus on Elee’s mental state at the time, rather than just his actions in loading the shotgun and pulling the trigger. Counsel suggests that the killing was an impulsive act committed by an immature young man, in a highly emotional state, bent on suicide. [ 113 ] Similarly, Defence counsel says that this same state would account for his lack of concern for other people through the danger of a stray or ricochet bullet.

It simply was not, says Defence counsel, something that Elee was thinking about. [ 114 ] Defence counsel understands the growing trend towards, and the need for, denunciatory sentences for certain types of crime, and in particular for spousal manslaughter where the accused (usually the husband) is a repeat spousal assault offender. Defence counsel points out that the victim’s death in such cases comes as a result of years of abuse.

The Defence, however, urges the Court to distinguish these cases on the basis that Elee, unlike the serial or repeat spousal assaulter, is simply not a hardened criminal who harbours a vicious disposition in a domestic context. [ 115 ] Counsel says that Elee made an appalling and grotesquely tragic mistake.

However, says counsel, terms of the individualized approach which is a hallmark of Nunavut’s sentencing regime, Elee is by no means (unlike a serial spousal abuser) beyond redemption. [ 116 ] Defence Counsel suggests that the proposed range of six (6) to eight (8) years is, from a deterrent and denunciatory standpoint, still a significant period of jail, particularly given the age and antecedents of his client. It is also a range, says counsel, which is more in keeping with other manslaughter cases which involves a fatal shooting of a brother.

In this regard, Defence counsel cites the case of Elias , above, where a six (6) year sentence was imposed, and R v Druken, 2006 NLCA 67 , 215 CCC (3d) 394 (NLCA) , where a five (5) year sentence was imposed. [ 117 ] Where the Defence parts company with the Crown in a major way is how the Court should deal with the firearms offences. [ 118 ] The Defence argues not only that a sentence in the range of six (6) to eight (8) years is appropriate for the manslaughter offence, but also that it should serve as the global sentence as well. [ 119 ] Counsel suggests that the sentences for the firearms charges should all run concurrent to the manslaughter sentence. [ 120 ] Counsel says that what is important in this case is not the quantum of individual sentences for the manslaughter and the firearms charges, but rather the end of the day result – the global sentence. [ 121 ] Defence counsel says that albeit Elee is to be sentenced for a major crime, a homicide, the individualized aspect of the sentencing process must recognize Elee’s youth and crime free antecedents in a meaningful way. [ 122 ] This is particularly so, says Defence counsel, where the facts of homicide and the facts of the shooting are so inextricably linked as essentially one continuing transaction – both in time and nature.

Counsel says that Elee was seeking or intent upon committing suicide before Jamesie was shot, and seeking or intent upon having the police come to kill him as he fired from the upper floor window. [ 123 ] Defence counsel notes that Elee’s suicidal ideation never changed, and that the shooting spree flows immediately in the aftermath of Jamesie’s death. [ 124 ] The Defence says it is well settled law that offences which occur as part and parcel of a continuing transaction or chain of events should attract concurrent sentences.

The Defence position is that within this context, as a matter of law, the case for concurrent sentences is compelling.

[ 125 ] Importantly as well, says the Defence, a global disposition of a jail term between six (6) and eight (8) years is a firm and fair range which satisfies the sentencing objectives of deterrence and denunciation while recognizing the potential rehabilitation of the young accused. VI.

ANALYSIS & CONCLUSIONS [ 126 ] It is well settled law that sentences imposed upon offenders can and should reflect the concerns of citizens in a particular region of the country, and also that the prevalence of a particular crime is a relevant factor to taken into account in the sentencing process. [ 127 ] An example of the application of these two notions or principles can be found in the sentences imposed by the Nunavut Court of Justice in cases of spousal manslaughter. [ 128 ] The Court has moved the yardsticks, so to speak, and in the last few years greatly increased the sentencing range in cases of spousal manslaughter where the offender comes before the Court with a track record for spousal assault and related abuse. [ 129 ] For example, in R v Ammaklak, 2008 NUCJ 27 , 2008 NUCJ 27 [CanLII] , a 13 year sentence was imposed.

In R v Kinak, 2011 NUCJ 25 , [2011] Nu J No 30 (QL) , a sentence of 14 years was imposed. And recently, in the case of Peter , above, a sentence of 15 years was imposed. [ 130 ] These sentences reflect the reality that in Nunavut the statistical incidence of spousal abuse far exceeds – indeed, almost exponentially exceeds – the national rate.

More importantly, the Court recognizes that such exemplary sentences are needed in order to maintain public confidence in the justice system. [ 131 ] From a denunciatory standpoint, such sentences assure the law abiding citizens of Nunavut that the Court shares their abhorrence for this type of crime.

The sentence is a signal that the Court takes this type of crime – spousal manslaughter – seriously. [ 132 ] In addition, and from the standpoint of general deterrence, there is always hope that individuals who perpetrate continued and habitual abuse upon their partners might pay heed to these sentences as they listen to the radio news, and be motivated to seek out the family support and professional help needed to address the underlying causes of their misbehaviour. [ 133 ] By analogy, the judges of this Court are well aware of the ever increasing, and disturbing, incidence of firearm crime in Nunavut. [ 134 ] Specifically, the communities of Cape Dorset and its sister community Kimmirut have, in the last decade, been riddled with firearm violence, including firearm violence directed at the police (twice with fatal result). [ 135 ] It is a sad observation that firearms, once used only as tool in the not too distant past, are now the first resort of choice as a weapon for a small but significant minority of frustrated and dysfunctional young men - young men unable to deal with jealousy, anger, or suicidal thoughts, and often driven by alcohol. [ 136 ] The end result, when these young men reach for a rifle, is the all too common stand-off with police. [ 137 ] In the past such a scenario might be expected to occur a few times within a year.

Today it is not remarkable to hear of a police stand-off with much more alarming frequency. [ 138 ] It is within this context of increasing firearm crime in Nunavut, and particularly in south Baffin and Cape Dorset, that Elee Geetah

is before the Court to be sentenced. [ 139 ] Although the entire weight of this high incidence of firearm violence cannot be placed on Elee’s shoulders, this contextual background cries out for a denunciatory sentence beyond the mandatory minimum provided for in the Criminal Code . [ 140 ] Indeed, in relation to the manslaughter, this is acknowledged by the Defence – and the parties are not that far apart respecting the appropriate sentence. [ 141 ] Accordingly, I will deal first with the manslaughter charge. [ 142 ] As I approach the assessment of the proper sentence to be imposed upon Elee for the offence of manslaughter, I do so, as always, first and foremost with a view to the most fundamental principle of sentencing enunciated in the Criminal Code , that is the concept of proportionality. [ 143 ] The notion of proportionality decrees not only that the punishment must fit the crime, but also that it must be seen by the public to fit the crime.

This requires an examination of the nature of the crime and the context of its commission. [ 144 ] The offence of manslaughter is obviously at the high end of criminal severity. A life has been taken. The maximum penalty is life imprisonment.

There is, however, except in cases involving firearms, no minimum penalty. [ 145 ] It is not surprising that the sentencing range for manslaughter has historically reflected the wide and varying circumstances under which this crime is committed – circumstances which range from instances of gratuitous drunken beatings to cases of near accident. [ 146 ] For example, in rare cases, an accused may have lashed out in anger towards the victim as a result of a lifetime of abuse. In others, he or she may have overstepped the boundaries of self-defence.

Also, it is not uncommon that an otherwise innocuous fist fight may yield a tragic result. [ 147 ] In this case, Elee Geetah ’s moral blameworthiness is high. [ 148 ] His reaction, in the aftermath of Jamesie’s assault was both immediate and impulsive and, I appreciate, driven in large part by his desire to end his life and to join his lost friend and soul mate. [ 149 ] But he was also possessed of sober and capable mind. [ 150 ] Elee’s actions in procuring and loading the shotgun were purposeful and, although motivated by a suicidal intent, were also intentionally designed to put a severe scare into members of his own family with no heed for their safety or to the danger of discharging a shotgun in the small confines of a house. [ 151 ] Accordingly, there is traction to the Crown’s characterization of this manslaughter offence as “near murder.” [ 152 ] Elee’s youth and his immaturity, together with the fact that he comes before the Court as a young Aboriginal offender with no previous criminal record, are all to be factored in (to the appropriate extent) to the ultimate sentence imposed upon him for manslaughter. [ 153 ] However, Elee’s actions, on the afternoon of October 10, 2010, impulsive as they may have been, do not mitigate the horrific crime which he committed.

[154] It is within this context of the fundamental principle of proportionality that I must apply the objectives of the sentencing process. [155] Defence counsel does not take issue with the notion that the paramount objectives in this case are, of course, denunciation anddeterrence.

Indeed, Defence counsel’s position on the appropriate range of sentence for the manslaughter charge is consistent with suchacknowledgment. [156] I note again that the Crown’s position for a period of imprisonment of between eight (8) to ten (10) years for the offence ofmanslaughter is attenuated by the fact of the remaining firearms charges and the Crown’s global position on sentence for a period ofimprisonment between fifteen (15) to seventeen (17) years (less, of course, time served on remand). [157] Defence counsel suggests that a range of between six (6) to eight (8) years for manslaughter strikes a balance between theobjectives of denunciation on the one hand, and rehabilitation on the other. [158] I pause to observe that while the sentencing objectives of denunciation and deterrence, on the one hand, and rehabilitation, on theother, seem at odds with each other, however, ultimately they share the same aim – namely, the promotion of a safe Nunavut. [159] Defence counsel was clear that his client Elee is not, in rehabilitative terms, “beyond redemption.” [160] In this regard, Defence counsel also reminds the Court that despite the severity of the crime and the fact that a life has been taken,Elee is nonetheless entitled to some consideration of the remedial provisions of Criminal Code s. 718(2) and the application of theGladue factors, ultimately, to the sentence imposed. [161] Defence counsel is, of course, aware of the limited application of the Gladue principles when it comes to Elee’s sentence formanslaughter. [162] I would note that our Supreme Court has made it clear in Gladue, as a practical matter, that particularly violent crime will result inimprisonment for Aboriginal offenders as well as non-Aboriginal offenders.

The Supreme Court has made it clear that Criminal Code s.718(2)(e), should not be taken as requiring an automatic reduction of a sentence of an otherwise warranted sentence (a review of theCourt’s position respecting the application of the Gladue principles in major criminal offences may be found in R v Kootoo,, [2000] Nu J No 10). [163] It is clear from Gladue and Ipeelee that what Criminal Code s. 718(2)(

e) allows for is an individualized approach to the sentencingof Aboriginal offenders within a restorative context where such a prospect has a realistic prospect of success, often regardless of theoffender’s criminal antecedents. [164] However, as the Supreme Court of Canada has pointed out in Gladue, it is also reasonable to assume that Aboriginal communitiesthemselves believe in the principles of denunciation and deterrence as appropriate sentencing objectives in response to major crime. [165] Accordingly, in the absence, for example, of a grand effort by an entire community with the concurrence of the victim or victims ofsuch a crime, a restorative sentence will rarely, if at all, be in the cards in cases of particularly violent and serious crime. [166] In this case, I have said that I believe the properly warranted sentence for the manslaughter offence should reflect the prevalence ofgun violence in our communities, and sadly, as well, how that violence has manifested itself in domestic or family settings. [167] Accordingly, and within this context, it is my view that the properly warranted sentence in this case is a period of incarceration ofbetween ten (10) to fifteen (15) years.

[ 168 ] However, since I recognize that the accused, Elee Geetah, is a youthful Aboriginal offender with no previous criminal record, I have opted for the lower end of the range by imposing the ten (10) year sentence of imprisonment. [ 169 ] I now turn to the firearms charges. [ 170 ] The law requires that I approach the imposition of sentence for these firearm offences within a certain analytical framework. [ 171 ] This is because there are multiple firearms charges arising from Elee’s shooting spree, and also because, from a global perspective, Elee is also being sentenced today for the manslaughter offence. [ 172 ] I must first consider the appropriate individual sentence for each firearm offence.

I then must consider whether these firearm sentences are to be served concurrently or consecutively to each other. [ 173 ] In terms of proportionality, it is important that the firearm sentences reflect both the seriousness of the offences as well as Elee’s moral blameworthiness in his commission of the offences. [ 174 ] Similarly, and from a global perspective, it is important that the aggregate sentence imposed for manslaughter as well as for the firearm offences reflect these same two aspects of the proportionality principle. [ 175 ] This is so regardless of whether sentence(

s) for the firearm offense are imposed concurrently to the sentence imposed for manslaughter or consecutive to the manslaughter sentence. [ 176 ] At the end of day, the sentence(

s) imposed for the firearm offences, as well as the aggregate sentence, must both satisfy the proportionality principle, but in doing so, neither should exceed the moral blameworthiness of the offender. [ 177 ] Defence counsel has urged the Court to impose jail terms for these offences which would run concurrently to the sentence imposed for manslaughter, on the basis that Elee’s shooting spree was a continuation of his earlier suicidal ideation and flowed from the manslaughter as a continuing transaction of a series of events. [ 178 ] The Crown disputes this and says Elee’s random shooting spree should be viewed entirely separate and apart from what happened earlier regardless of his motivation to create a dangerous situation such that the police would need to shoot him to put an end to it. [ 179 ] Accordingly, the Crown says that the shooting rampage should attract a consecutive period of incarceration to the sentence imposed for manslaughter, in the range of seven (7) years for the ‘lead offence’ of firing into Constable Driscoll’s home.

Indeed, the Crown notes that this was precisely the sentence imposed in the case of Utye , above, where the Crown says the facts are not that dissimilar from the situation presently before the Court. [ 180 ] Otherwise, as I noted earlier, the Crown is content based on the principles of global sentencing that the sentences imposed for the remaining firearms offences may run concurrent to this lead offence. [ 181 ] In assessing the individual sentences to be imposed for the firearm offences, I feel it is important to make note of Elee’s moral blameworthiness for these offences, as well as the impact which his shooting rampage had on his home community of Cape Dorset. [ 182 ] In my view, Elee’s moral blameworthiness is high.

[ 183 ] As someone with experience and proven competence in the use of firearms, Elee would know the danger of ricochet, particularly where high powered rifles are used. For example, one of his shots made impact with a truck right beside where a man was standing, near his head. Further, the single shot which entered Constable Driscoll’s house through an exterior wall and lodged in the opposite wall could easily have ricocheted and hit people in the house.

Finally, it is only a matter of luck that the repeated and constant volley of shots directed near people in the street, and the drivers of the trucks, did not ricochet and cause harm, or even death. [ 184 ] It is within this context – the prospect of harm from ricochet – that Elee’s assertion that he is a good shot and was not trying to hurt anyone, counts for naught. [ 185 ] Further, and with respect to the impact of this shooting rage upon the community, I take particular comment of the note of the Crown submission that “there was no one in the community not terrorized that afternoon.” [ 186 ] I have read the brief, but disturbing victim impact statements from some of the people in the street. [ 187 ] This shooting spree was more than an inconvenience to the residents of Cape Dorset.

Rather, the entire community came to a standstill, frozen in fear. [ 188 ] I also am mindful that while Elee was firing shots out the window, everyone in the community suffered a heightened anxiety as people telephoned and e-mailed each other about what was happening.

There were parents who feared for the whereabouts of their children that were not home, that these children might be out in the street in harm’s way; some families even began arming themselves in preparation for the worst. [ 189 ] What followed in the aftermath of this shooting rampage was the expression of public outrage at the perpetrator of such a selfish and dangerous escapade. [ 190 ] It follows that the sentence imposed for these firearms offences must be primarily an exemplary one – it must reflect the community abhorrence of the shooting and the outrage towards the perpetrator. [ 191 ] In southern Canada, I might expect a large community turn out during the sentencing hearing, replete with much expression of public outrage at the offender for frightening the entire community.

In the Nunavut context, an entirely empty courtroom, except for Elee’s parents, with not even a single community member present in support of Elee, is a sign of the community’s condemnation through silence. [ 192 ] The Court must assure the good citizens of Cape Dorset that it affirms the value of a peaceful community, and that it denounces Elee’s conduct in the strongest possible terms. [ 193 ] In my view, this can only be done by imposing a sentence of custody which exceeds the required minimum mandatory four (4) years as set out by Parliament in the Criminal Code . [ 194 ] I am also of the view that a custody sentence of seven (7) years is a good fit for the lead firearm offences given that, as in the case of Utye , above, Elee fired a shot into a police residence. [ 195 ] I feel that I must, however, attenuate the sentence because of the lengthy term imposed for manslaughter, and because I feel a global sentence of fifteen (15) years properly addresses both proportionality as well as the paramount objectives of sentencing in this case to which I have alluded earlier. [ 196 ] Accordingly, the sentence for the offence contrary to Criminal Code s. 244.2(1) (

a) is a period of imprisonment of five (5) years, which will run consecutively to the manslaughter sentence. The sentences for the other firearms offences will also run consecutive to the manslaughter charge, but concurrently to each other, as above.

[ 197 ] I will now deal with the reasons why I have imposed the sentences for the firearm offences consecutive to the manslaughter sentence. [ 198 ] First, I have only imposed one (1) firearm offence consecutive to the manslaughter offence which affects the aggregate sentence – namely, the offence contrary to Criminal Code s. 244.2(1) (a), involving the Driscoll residence.

This is the so-called lead offence as identified by the Crown. [ 199 ] In addition, the Crown recognized that the shooting spree was essentially one continuing transaction which would normally result in concurrent sentences between the firearm offences themselves. [ 200 ] Also, although the Crown had argued for a seven (7) year sentence for this offence, at the same time, as I alluded earlier, the Crown was fair to recognize that it would exceed Elee’s moral blameworthiness to impose firearm sentences consecutive to each other – particularly since three (3) of the firearm charges carried four (4) year minimum sentences. [ 201 ] In my view, however, it does not matter whether the shooting rampage is viewed as a continuing transaction or as a series of events flowing from the fatal shooting. [ 202 ] It is not uncommon for a court to impose concurrent sentences where it considers the actions of an accused to be a ‘continuing series of events’ regardless of the fact that the legal elements of the offences are distinct.

But this will not always be the case. In my view, the sentence imposed on Elee for the shooting rampage must be imposed consecutively to the sentence imposed for the manslaughter. [ 203 ] This is so because I believe that the sentences must reflect the separate legal interests which the law seeks to protect. [ 204 ] The sentence imposed for the manslaughter offence recognizes that the sanctity of the family home needs legal protection.

The sentence imposed for the shooting rampage is an affirmation of safe community values and recognizes that the members of the community as a whole are entitled to and sometimes in need of the protection of the law. [ 205 ] The manner in which the law extends this protection is, of course, to sanction offenders who threaten or breach the safety of the family home or the community as a whole. [ 206 ] In my view, to subsume the sentence for the shooting rampage within the sentence for the manslaughter is to tell the members of Cape Dorset that, essentially, the shooting spree is not important in the eyes of the law – that in the eyes of the law it does not matter. [ 207 ] Accordingly, I feel compelled to impose a consecutive term of imprisonment upon Elee for his shooting spree. [ 208 ] I will make final comment respecting the imposition of the fifteen (15) year firearm prohibition pursuant to s. 109 of the Criminal Code . [ 209 ] In previous cases of manslaughter, I have imposed a life time ban and I note in the cases of Lyta , and Utye, above, where each of the accused perpetrated attacks on police detachments and residences, that lifetime firearms prohibitions were imposed. [ 210 ] But each case is unique.

I have given considerable thought to the length of the firearm ban in this case. Elee Geetah was barely out of boyhood when he tragically killed his brother Jamesie, and although he fired a single shot at a police residence as part and parcel of an attempt to attract police to kill him, he did not, unlike Lyta and Utye, perpetuate a prolonged volley of fire aimed at the police.

[ 211 ] The fifteen (15) year sentence is itself severe. And so, within this context, an additional fifteen (15) year firearm prohibition is also severe. [ 212 ] Even allowing for parole, Elee Geetah will be a middle aged man, in his forties, and likely with a family of his own, before he is permitted to handle a firearm. [ 213 ] I can appreciate that even with a lifetime firearm prohibition an offender can still participate in the hunt by accompanying others and assisting with the kill.

But I am also mindful that hunting is more often the activity of a single individual. [ 214 ] Given the combined severity of the 15 year jail sentence and the additional 15 year firearms prohibition, I have decided to minimally temper justice with mercy by allowing Elee Geetah, albeit many years from now, to use a firearm. I do not think it necessary to punish the man that Elee Geetah is one day likely to be, for the rest of his life, for the criminal sin and tragic mistake he made in late boyhood.

Accordingly, I will allow Elee Geetah, in the future as a man approaching middle age, to once again use a firearm as a tool, and to participate fully in the traditional life that he shared with his family prior to that tragic day of October 10, 2010. Dated at the City of Iqaluit this 20th day of March, 2015 ___________________ Justice N. Sharkey Nunavut Court of Justice