R v. Padluq, 2016 NUCJ 22

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R v. Padluq, 2016 NUCJ 22 Date: 20160913 Docket: 09-14-21 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused Pauloosie Padluq ________________________________________________________________________ Before: The Honourable Madam Justice Tulloch Counsel (Crown): Caroline Lirette; Martin Tooke Counsel (Accused): James Morton Location Heard: Kimmirut, Nunavut Date Heard: September 13, 2016 Matters: Criminal Code of Canada , RSC 1985, c C-46, s. 236 – manslaughter; Sentencing REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication)

I.

BACKGROUND [ 1 ] I am now prepared to deal with the sentencing of Pauloosie Padluq who has admitted his responsibility in the tragic death of Qummuattuq Simeonie which occurred in September of 2014. [ 2 ] The accused before the court pled guilty to manslaughter on August 27, 2015. [ 3 ] Manslaughter is doing something unlawful which causes the death of another person without having intended to cause death. [ 4 ] In this case, the Crown has accepted a plea to manslaughter because the accused was drunk to such an extent that he could not form the necessary specific intent for him to be found guilty of murder. [ 5 ] I heard submissions on sentence from both counsel on April 29, 2016, and the sentencing was adjourned to today so that it could be given in the community where the offence took place. [ 6 ] My decision today, as it must, relies heavily on the facts of the case and the unique circumstances of the offender. [ 7 ] For the sake of clarity, I am going to refer to individuals by their first names throughout my judgment. [ 8 ] I would like to start by saying that the Court is powerless to do anything that will bring Qummuattuq Simeonie back to his friends and family.

No sentence, no punishment, will even come close to compensating the loss felt by those who knew him. [ 9 ] I asked the prosecutor if any of Qummuattuq’s family or friends wished to take

part in this hearing. I was told that they did not. This morning we heard from Qummuattuq’s mother and his partner. It was very emotional and I applaud their courage in coming forward. The fact that they chose not to provide Victim Impact Statements reminds me that everyone deals with life’s tragedies in their own way. It does not mean that the loss of Qummuattuq by those who knew and loved him is any less painful to those left behind. [ 10 ] The Court would like to extend their sympathy to all of you who have been impacted by this very tragic event. II.

AGREED STATEMENT OF FACT [ 11 ] There is an agreed statement of fact in this case outlining admissions made by the accused supporting his plea of guilty. This has been useful in eliminating the need for a trial in this matter. [ 12 ] The basic facts are, as follows. [ 13 ] On September 1, 2014, there was a party at Donny Pitseolak’s house here in Kimmirut. A number of his friends and family attended. A substantial amount of alcohol and marijuana was consumed by party goers. Pauloosie and Qummuattuq were part of the

group. [ 14 ] The history between these two men was not good and the consumption of alcohol and drugs made matters worse. Serious accusations of sexual touching were made by Qummuattuq involving his daughter to Pauloosie. This caused a heated argument. The accused was also upset because he learned that Qummuatuq had decided not to follow through with the purchase of Pauloosie’s boat. [ 15 ] Verbal sparring and arguing between Pauloosie and Qummuattuq continued and, at about 1 a.m., Ben Akavak witnessed the accused slap Qummuattuq’s nose with his middle finger.

A physical fight broke out and Ben Akavak intervened to stop the fight. [ 16 ] At about 3:30 a.m., Temela Temela witnessed Pauloosie and Qummuattuq punching each other after arguing in the kitchen of Donny’s home. [ 17 ] Both Temela and Donny were alarmed by the fight and went to the back door to discuss whether or not they should leave the residence. [ 18 ] During this conversation, Temela heard what sounded like someone rummaging through the drawers in the kitchen. [ 19 ] It is admitted by the accused that this is when he selected the knife that was used to stab and kill Qummuatuq Simeonie. [ 20 ] After the sound of rummaging, Temela heard what sounded like someone falling to the floor and getting back up again.

Shortly after, Pauloosie left the house by the front door. Qummuatuq came to the back door where Temela and Donny were standing. He entered the bathroom, which is near the back door, turned on the light and lifted his shirt. He then showed Temela and Donny an injury on his upper chest. It appeared to Temela to be a deep wound. [ 21 ] Qummuatuq told them, and it is not disputed, that the injury was caused by Pauloosie who had stabbed him with a knife. [ 22 ] It is admitted that the wound caused Qummuattuq’s death by penetrating his heart.

It was 10.5 centimetres deep. [ 23 ] Donny told Qummuattuq to go to the health centre. Instead, Qummuattuq left Donny’s using the front door and Temela left using the back door where he saw Qummuattuq running towards Pauloosie. Temela followed at a distance and watched as Qummuattuq caught up to Pauloosie in the laneway behind the school. He saw the accused push Qummuattuq to the ground and make more stabbing motions towards him.

Temela heard Qummuattuq say; “Hey you’re killing me, man.” Pauloosie then got up, dropped the knife near the body, and walked away. [ 24 ] The accused’s sister says that Pauloosie came home around 7 a.m. Shortly after, he attended the health centre and told the nurse there that he had been beaten up by Qummuattuq Simeonie. He was noted to have superficial wounds to his face, right arm, and left hand. [ 25 ] The police located Qummuattuq’s body at about 7 a.m. in the alley behind the school.

The kitchen knife was found near him and there was a trail of blood from Donny’s house to the body and from the body to Pauloosie’s residence. [ 26 ] Pauloosie Padluq was arrested and held in custody where he remains today.

III. SENTENCING CONSIDERATIONS [ 27 ] In coming to a fit and appropriate sentence, I have considered these admitted facts, together with the submissions made by counsel. I have also carefully considered: • The Psychosocial Assessment of Pauloosie Padluq; • The case law submitted by both parties; • Pauloosie’s criminal record; • The exhibits filed and agreed to by counsel; and • The accused’s guilty plea and his expression of remorse. [ 28 ] I have also considered, as I must in every sentencing, the provisions contained in the Criminal Code of Canada , RSC 1985, c C-46 [Criminal Code] . [ 29 ]

Section 718 of the Criminal Code outlines the objectives of sentencing as follows: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 30 ] It is clear from the facts of this case that I must separate this accused from society. The most important principle of sentencing in this case must be deterrence and denunciation. [ 31 ] Criminal Code s ection 718.1 requires that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 32 ] Taking someone’s life, even without a clear intention to do so, is secondary only to murder in terms of the gravity of the offence.

Although it is clear that the death resulted from what began as a drunken, consensual fight between the accused and Qummuattuq, the degree of responsibility is very high. The accused is the person who decided to escalate matters by involving the use of a weapon which caused the death of another human being. [ 33 ] There is no doubt that Qummuattuq Simeonie died as a direct result of Pauloosie Padluq’s actions that evening. [ 34 ] Criminal Code

section 718.2(

a) indicates that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or to the offender. IV. ANALYSIS

A. Aggravating circumstances [ 35 ] The relevant aggravating circumstances are, as follows. [ 36 ] The accused comes before the court with a serious criminal record. In 2008, he was convicted of sexual assault. In 2009, he received a conviction for carrying a prohibited weapon in a careless manner and in 2011, he was sentenced to two years for another sexual assault and two sexual interference charges.

I am told that the four sexual offences were perpetrated on four separate women. [ 37 ] It is acknowledged that, at the time of the incident before the court, Qummuattuq was involved with one of the women the accused sexually assaulted in the past.

This added fuel to a fire that had been smoldering for some time between the two men. [ 38 ] As I have just said, although this tragic event may have started as a consensual fight between two drunk individuals, it is the accused who chose to escalate matters when he specifically picked up the knife from Donny Pitseolak’s kitchen to use against his adversary. [ 39 ] Given the nature of Qummuattuq’s death, it is clear that the accused used excessive force. In fact, the force he used in stabbing Qummuattuq with the knife he chose was deep enough to pierce his heart.

Only an enormous amount of effort could have caused the grave injury that eventually caused Qummuattuq’s death. [ 40 ] After stabbing him, Pauloosie left the residence. It is unfortunate that Qummuattuq did not go to the health centre, but instead chose to follow the accused. Although there is no further evidence of actual stabbing by Pauloosie, he did assault Qummuattuq further by pushing him to the ground and threatening him. [ 41 ] Although from all accounts it is evident that both men were intoxicated by alcohol and drugs, Qummuattuq’s life was cut short by the actions of the accused.

This is the most aggravating circumstance of all. B. Mitigating circumstances [ 42 ] Next, I must look at the mitigating circumstances (the good things) that I must take into account on sentencing. [ 43 ] The most important mitigating circumstance is Pauloosie’s early guilty plea and his admission of responsibility. This has saved the court and the police a lot of time and money.

It has also saved a number of potential witnesses (family and friends) from having to relive this awful night by having to testify in court. [ 44 ] The accused has, of course, expressed remorse for what he has done. [ 45 ] This case is similar to so many of its kind. Pauloosie is one of a group of individuals who become dangerous when they drink alcohol.

This is clear from the Psychosocial Assessment and from various submissions made throughout. [ 46 ] The irresponsible use of alcohol and drugs by the accused has already been taken into account by reducing the charge he is facing from murder to manslaughter and, although it is certainly a factor in this case, I do not in any way consider it a mitigating circumstance.

[47] I am told that the accused has been doing extremely well in jail. In the last two years, while in custody, he has completed severalcertificate courses and become a role model to others through his dedicated work as an accomplished carver. [48] Defence Counsel says that jail has had a positive effect on him and that his success can be attributed to the fact that he is unable toconsume alcohol while incarcerated. [49] This exemplary behaviour while incarcerated speaks positively to his chances of rehabilitation. C.

Background of the accused [50] When crafting a fit and appropriate sentence, the court must also look beyond the offence and take into account the specificcircumstances of the accused. [51] I must, of course, in the case of an Aboriginal offender, give genuine consideration and effect to the remedial provisions of s.718.2(

e) of the Criminal Code as those provisions have been interpreted by the lower courts and by the Supreme Court of Canada. [52] Cases such as R v Gladue, (SCC), [1999] SCJ No 19, [1999] 1 SCR 688 (QL) [Gladue], and R v Ipeelee, 2012SCC 13, [2012] 1 SCR 433 [Ipeelee], address the over representation of Aboriginal offenders in our jails by both requiring and allowinga sentencing court to approach their job from a restorative prospective --- both with respect to the form of the sentence if an alternative tojail is possible, as well as the length of the jail term where the offender has addressed the root causes of his criminal behavior and wherehis prospects for rehabilitation are good. [53] Judges must consider the unique systemic or background factors which may have played a

part in bringing this person before thecourt. [54] Judges should take judicial notice of such matters as the history of colonialism, displacement, and residential schools, and how thathistory continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuseand suicide, and of course higher levels of incarceration for Aboriginal peoples. [55] However, these matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders.

These backgroundfacts are to be taken into consideration for all offenders, whether they are Aboriginal or not. [56] Counsel has a duty to bring individualized information before the court in every case unless the offender expressly waives his rightto have it considered. The court requires viable sentencing alternatives to imprisonment that may play a stronger role in restoring a senseof balance to the offender, victim, and community, and in preventing future crime.

As with all sentencing, this must be done with regardto the particular individual, the threat they pose, and their chances of rehabilitation and reintegration. Evaluating these options lies withinthe discretion of the sentencing judge. [57] The more serious the offence, the less likely the Gladue principles will work to reduce sentence.

This is because, as the Court hasarticulated, the sentencing objectives of deterrence and denunciation as part and parcel of fostering safe and secure communities arevalues which are shared by Aboriginal and non-aboriginal communities alike. [58] In this case we have the benefit of an in-depth Psychosocial Assessment completed by Abe Kass who is a qualified social workerfrom Ontario. [59] It is very helpful as it provides information about Pauloosie Padluq’s past.

[ 60 ] Pauloosie, his siblings, and his parents were considered to be very poor.

The accused indicated that the poverty he experienced as a child played a very negative role in his life. [ 61 ] The accused suffered both physical and sexual abuse inside and outside of his own family. [ 62 ] The report identifies Pauloosie as being a victim of Ed Horne, a notorious pedophile who, through his job as a teacher, preyed on young, vulnerable victims throughout the north. [ 63 ] The accused indicated that he has been haunted throughout his life by the acts of abuse he had to endure and yet he minimizes the sexual abuse he has perpetrated on others in his community.

He appears to have little insight into how his own bad behaviour has damaged the four women he abused in the same way. [ 64 ] We are told that Pauloosie was bullied at school so, like so many before him, he dropped out early. [ 65 ] At some point in his young life, the accused got caught up in using excessive amounts of alcohol and drugs to deal with his demons. [ 66 ] It is interesting to note that, even with these difficulties, the accused describes himself as having come from a good home with loving parents.

There was no substance abuse or family violence witnessed by the accused in the home while he was growing up. [ 67 ] From those individuals who know Pauloosie the best, we see a clear indication of what a good person he is when sober. This is no surprise to the Court. His success is tied to his ability to control an addiction that has plagued him for many years. D. Positions of the parties [ 68 ] Manslaughter carries with it a whole range of available sentences from probation to life imprisonment.

This wide range reflects the variety of circumstances with respect to specific facts, from near accident to near murder. It reflects the variety of offenders as well. [ 69 ] Sentencing is a difficult job. It has to be a specific exercise based on the case at hand. It requires a considerable amount of balancing which must take into account all of the things I’ve talked about. [ 70 ] The sentencing principles of parity and totality must also be considered.

This means that like cases should receive like sentences and a total global sentence should not crush the offender’s chance of rehabilitation and reintegration upon his release from jail. [ 71 ] Pauloosie Padluq has spent two years in pre-trial custody. He is entitled to enhanced credit at the rate of one and a half days for every day spent in jail waiting for his matter to be resolved.

This amounts to three years already served. [ 72 ] The Crown’s position on sentencing is a further three to four years in the penitentiary. [ 73 ] Defence strongly urges the Court to consider a further two years less a day (after taking into account pre-trial credit) so that Pauloosie can remain in the territorial system where he is excelling. This would allow him to be placed on probation upon his release. It was suggested that this would benefit him and his community because one of the terms could be that he must abstain from the possession or consumption of alcohol.

[ 74 ] As I have already indicated, I carefully considered both positions. [ 75 ] Further, the cases provided by both Crown and Defence were also helpful. [ 76 ] I find the case of Colin Makpah ( R v Makpah , 2015 NUCJ 34 , [2015] Nu J No 31 (QL) ), to have a number of similarities to the case at hand. It involved a conviction for manslaughter in similar circumstances. Alcohol was involved and a knife was used. [ 77 ] That being said, I agree with the Crown that the case at hand attracts a higher level of criminal intent making it a case that comes closer to near murder than near accident.

Further, Pauloosie has a more serious criminal record involving a number of violent offences. V. SENTENCE [ 78 ] I have come to the conclusion that a fit and fair sentence in all the circumstances of this offence, taking into account the circumstances of this offender, would be a global jail sentence of six years. [ 79 ] Pre-trial credit is to be given amounting to three years already served. This means that the sentence will amount to three more years in the penitentiary. A.

Ancillary Orders [ 80 ] I am obligated by law to impose a Victim of Crime Surcharge in the amount of $200.00 and I will give the accused two years after he is released from custody to pay the fine. [ 81 ] It is also mandatory for the court to impose an order prohibiting the accused from possessing any firearms, explosive substances or ammunition for life under

section 109 of the Criminal Code . [ 82 ] Finally, there shall be a DNA order as this is a primary designated offence. [ 83 ] I am encouraged, Mr. Padluq, by the progress you have made while incarcerated. I hope you can continue to take programs which will assist you once you are released back into your home community. Good luck Sir! Dated at the City of Iqaluit this 13th day of September, 2016 ___________________ Justice B. Tulloch Nunavut Court of Justice