Tragic gun mishap leads to manslaughter conviction, sentencing

GORE BAY – Earlier this year (August 20), Frank Tomaselli of Sheshegwaning First Nation pleaded guilty to one count each of manslaughter with a weapon and careless handling of a firearm, relating to the death of his wife, Talia Carey, in August 2019. Last Friday, October 15, he was sentenced to four years in custody, less one year for time served in pre-trial custody, for the manslaughter plea and nine months for the firearm count, to be served concurrently.

Regional counsel David Kirk from the Sault Ste. Marie Crown Attorney’s office and defence counsel James Weppler prepared a joint submission for sentencing to Justice Jessica Wolfe, who thanked both for their comprehensive and thoughtful submissions in this “complicated” case. Both lawyers spoke about the uniqueness of this case in the facts and in the approach.

Prior to sentencing, Mr. Tomaselli participated in a justice advisory circle facilitated by the UCCMM Justice Program that was attended by family, friends, respected elders, Mr. Tomaselli’s mental health worker, an OPP constable and Sheshegwaning First Nation Chief Dean Roy. Some participants also attended the hearing to support Mr. Tomaselli while others submitted letters of support. Justice Wolfe explained this circle was an important initiative under the Anishinaabe of Manitoulin Island because “it reconciles Indigenous law with an emphasis on the promotion of healing and reparation with the application of Canadian sentencing law.” 

The co-advisory circle helps the sentencing judge by providing insight into reconciling the two world views on how to achieve justice as well as the shared goal of safe and healthy communities, she explained. The circle provided a report to the court that spoke about the impact on Mr. Tomaselli and Ms. Carey’s four children of losing their mother, but who have also lost time with their father. It spoke to the harm of continued family separation and asked for compassion and understanding, keeping the girls in mind. The circle also recommended a follow up circle with all parties who were in attendance when Mr. Tomaselli is released from custody, to help him re-integrate into the community. 

Linda Carey, mother of Talia Carey, read her victim impact statement into the court record, which Justice Wolfe quoted several times in her decision. Ms. Carey spoke of the grief of losing her daughter but also about forgiveness, acceptance of what happened, and the unconditional love of children. Ms. Carey has cared for her four granddaughters since the tragic night in August 2019.

“You are modeling responsibility by owning up to your mistake and by following through on your comments to me that you will use every program and use every day of your sentence to make sure you come out ready to be the best father you can be for them,” Justice Wolfe told Mr. Tomaselli, while acknowledging that prison is not conducive to that kind of healing. 

She pointed out the community continues to struggle with the loss, which has resulted in harmful anger directed towards Mr. Tomaselli, but that there is also a lot of support for him now and when he returns. “It is not missed by me that your chief and elders of your community participated in the circle,” she said. “Be mindful of that support and accept it going forward.”

“It is clear you had no intention to cause harm or death to your wife or anyone else for that matter,” Justice Wolfe read from her decision. “That said, your actions gave rise to an inherently dangerous situation and caused a marked departure to the standard of care expected of a reasonable person.” 

“It brings me no pleasure to send a young Anishinaabe man to a federal institution in circumstances such as these but it is the law I am obliged to follow and the sentence most consistent with the principles outlined, including proportionality,” she read. “You have shown so much resilience in these difficult times and I have learned from your beautiful family and community. I hope, as Mr. Weppler submitted, that the Canadian courts will continue to learn from these approaches as we move forward in these times of reconciliation.”

In addition to the three years in custody (that include a concurrent nine-month sentence for careless storage of a firearm), Mr. Tomaselli received a weapons prohibition for life, with the exception of lifting the prohibition for hunting for sustenance under section 113(1) while in the accompaniment of a person appropriately licensed to possess a firearm. He was also required to provide a DNA sample and forfeit the weapon and ammunition seized. As Mr. Tomaselli is unemployed, has been in custody and will be entering custody, Justice Wolfe waived the victim fine surcharge.