R. v. Qaqasiq, 2020 NUCJ 36

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Qaqasiq, 2020 NUCJ 36 Date: 20201027 Docket: 10-18-49 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Aamusie Charlie Qaqasiq ________________________________________________________________________ Before: Mr. Justice Lyons Counsel ( Crown ): A. Dion Counsel (Accused): M. Manocchio Location Heard: Iqaluit, Nunavut Date Heard: September 18, 2020 Matters: Sentencing for attempted murder under Criminal Code of Canada, RSC 1985, c C -46 s. 239 (

b) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE This judgment has been partially anonymized at the discretion of the authoring Justice to protect vulnerable parties. I. INTRODUCTION [ 1 ] The offender, Aamusie Charlie Qaqasiq, has pleaded guilty to a charge of attempted murder. He is before the Court to be sentenced. To preserve the anonymity of the victim, I will refer to him using the initials KL. For ease of reference, I will use the offender’s first name. II. BACKGROUND [ 2 ] On the morning of May 19, 2018, 16-year-old KL was working as a cashier at the grocery store in his small home community, when 20-year-old Aamusie entered.

Apart from occasionally seeing Aamusie around town and in the store, KL did not know Aamusie. They had never spoken or dealt with each other. [ 3 ] Suddenly, without provocation or any apparent reason, Aamusie attacked KL with a hunting knife. He stabbed KL in the upper body, pinned KL to the ground, and continued stabbing him. [ 4 ] Store employees intervened and restrained Aamusie momentarily, which allowed KL to flee down one of the shopping aisles.

Aamusie was able to free himself from the grasp of the store employees and chased KL down the aisle, catching up to him at the end of the aisle where he stabbed KL in the back, pinned him to the floor, and continued stabbing him. [ 5 ] Store patrons intervened and were able to restrain Aamusie and remove him from the store where he was held down until the police arrived and arrested him. [ 6 ] KL was seriously injured and bleeding heavily. He was in pain but remained conscious. He was taken to the health centre where he was in and out of alertness.

He was covered in blood and sustained 15 significant stab wounds to his upper body: six on his back; three on his chest; one each on his shoulder, abdomen, and flank; one large six-inch long gaping wound to his forearm that exposed bones; and a laceration to his palm and cheek. [ 7 ] He was stabilized and medevac’d to Iqaluit. X-rays taken in Iqaluit showed evidence of collapsed lungs, and he had difficulty breathing.

He underwent surgery, received a chest tube, had stitches to close the numerous wounds, received IV treatment, and spent three weeks in hospital recovering. [ 8 ] Long after the attack he suffered pain, muscle aches, and had difficulty lifting things. He has since largely recovered physically from the attack but is left with significant scarring. [ 9 ] Aamusie was not injured during the incident.

III. OFFENDER’S ACCOUNT OF THE INCIDENT [ 10 ] The court has had the benefit of psychiatric assessments of Aamusie conducted while he has been in custody. During those assessments he gave differing accounts of the incident. The most comprehensive of the assessments was the court-ordered report written by Dr. De Freitas in June 2019. Dr. De Freitas had the benefit of extensive meetings with Aamusie, and she observed and treated him during the three months he was an inpatient with her at the Ontario Shores Centre for Mental Health Sciences from March to June 2019. [ 11 ] Aamusie reported to Dr.

De Frietas that he did drugs prior to the attack on KL and was stoned when he committed the offence. He said he didn’t feel good that day and just felt like killing somebody. He didn’t know why he felt that way, but for some reason he didn’t care about life that day. [ 12 ] He said he went for a walk to clear his head and entered the CO-OP to buy something. He was armed with a hunting knife. Once inside, he started stabbing the first male he saw. He said he wasn’t going to stab a female, as that just wasn’t him. He said that he lost control and kept stabbing and stabbing and stabbing.

When KL ran away, he said he still stabbed him as he just wanted KL to die. He reported that he was aiming for KL’s neck but missed because KL moved. [ 13 ] He said that at the time he knew it was wrong to stab someone. When asked why he did it he said he didn’t know, and there was no reason he guessed. He said that after his arrest he thought he had killed KL and done the wrong thing and that he would go to jail for 25 years. [ 14 ] When asked about how he felt about the attack he said “I feel sorry for the guy. I feel sorry about stabbing him”.

He said he was disgusted with himself and couldn’t believe he did what he did. [ 15 ] Regarding the drugs Aamusie was on at the time, his various accounts are inconsistent. He described just being on five grams of marijuana, then later said he was also on crack cocaine as well as a variety of psychiatric medications, Prozac, Cogentin, and clozapine. He had told another doctor that he stopped taking clozapine a month prior to the incident.

At other times he stated he had stopped taking all medication for about three months prior to the attack on KL. [1] [ 16 ] He also told another doctor that he had been under the influence of alcohol at the time of the offence but told Dr. De Frietas that he had not. [ 17 ] He also reported using Wellbutrin, gabapentin, crack cocaine, cannabis, an opiate, Prozac, and other psychiatric medications in the weeks and days prior to the offence. IV.

VICTIM IMPACT STATEMENTS [ 18 ] KL and his parents attended the sentencing hearing in Iqaluit in person and provided victim impact statements. [ 19 ] As can be expected, they have been significantly affected by the attack on KL. They struggle with the senselessness and viciousness of the attack. As the parents put it, KL is the most innocent boy, a precious and good son who has never hurt anyone. That someone in their small community would try to kill such an innocent boy has been traumatizing.

They no longer trust others outside of family and friends. [ 20 ] They describe KL as suffering from post-traumatic stress disorder and anxiety, and he has seen a mental health nurse as a result. After the attack, KL largely stayed at home. He was unable to be out in public, as he was afraid of being targeted again. The only time he went out of the house was with one of his parents. [ 21 ] KL’s mother said that her son grew up very happy and was loved by all. She said he was an outgoing person but is not like that anymore. His parents report that they easily cry knowing their son is suffering.

For KL, the physical scars on his body serve as a

constant, unavoidable reminder of the attack. [ 22 ] KL used to work at the CO-OP four or five times a week after school and on weekends. He tried to go back to work but experienced flashbacks to the attack and found it emotionally and mentally difficult to be there, so he quit his job. [ 23 ] KL’s mother also had to stop working for a period to stay home with KL, which resulted in financial hardship for the family.

KL’s father said he was so concerned for his son’s well-being that he became less committed to his job and only wanted to be at home with his son to protect him. [ 24 ] They are troubled that Aamusie will likely return to their small hamlet after he serves his jail sentence. KL is afraid to see Aamusie and is concerned that he may attack his family or find him and “finish the job” as he put it.

KL’s father does not want Aamusie in the community and wants his son to be protected. [ 25 ] I was heartened to hear from Crown counsel that since the attack and the filing of the victim impact statements, KL has graduated high school, and now works as a substitute teacher. This is a significant achievement, and a testament to KL’s resilience, courage, and strength, as well as an indication of the kind of love and support he has received from his family in the wake of the attack. V. PERSONAL CIRCUMSTANCES OF THE OFFENDER [ 26 ] Aamusie was raised in his home community primarily by his grandparents.

His biological mother lives in Yellowknife and has not been a part of his life since age two when their relationship was severed. It appears his mother had a problem with alcohol and was unable to care for Aamusie. His biological father has a significant and violent criminal history and spent much time in jail when Aamusie was growing up. [ 27 ] Aamusie has a positive relationship with his grandparents. He attended school and did fairly well. His grades were good, and he graduated high school. He also completed a few courses at Arctic College in his community.

His grandmother described him as a good boy, but she said that he started to get in trouble when he was 17 or 18 years old. It was at this time he began smoking marijuana, drinking alcohol, and doing other drugs. [ 28 ] His father appears to have a drug problem. He may have provided Aamusie drugs and done drugs with Aamusie. [ 29 ] When intoxicated Aamusie would become aggressive and out of control. During some incidents, he punched holes in the walls at home. He also reportedly broke into his aunt’s home while intoxicated, stabbed several walls with a knife, and demolished a bedroom door.

He was arrested and charged because of this and referred to community justice. [ 30 ] Aamusie, his father, and his grandmother all reported other acts of violence while Aamusie was under the influence of drugs and/or alcohol, including hitting people with rocks and beating people up. Aamusie said that in 2017 or 2018 while intoxicated by alcohol and cannabis he almost killed someone. He said he chased a random man with a machete and almost macheted him in the head, but the man was able to escape into a house. He said he also chased his father with a machete. VI.

PSYCHIATRIC HISTORY [ 31 ] From 2016 until 2018 Aamusie had a series of admissions to hospital because he exhibited bizarre behaviour, appeared to have seizures, reported being paranoid, described auditory and visual hallucinations, and appeared to experience psychotic episodes. He was prescribed a variety of psychiatric medications, some of which he took, and others that he did not. [ 32 ] He was diagnosed with schizophrenia in 2016 when he first reported symptoms and again in 2018 in the Defence-commissioned

report of Dr. Gojer, which assessed whether or not Aamusie was criminally responsible for the attack. [ 33 ] The diagnosis of schizophrenia is controversial. Dr. Choptiany treated Aamusie in 2017 and 2018 in Iqaluit, and opined that the diagnosis was unclear. He noted that despite having been diagnosed with schizophrenia and having been off of antipsychotic medication for months, Aamusie’s thought processes were organized. [2] [ 34 ] Another psychiatrist, Dr.

Law, found that his reported symptoms were better explained as drug-induced psychosis and a mood disorder and that his reported hallucinations were not true hallucinations. [3] The seizures were determined to be pseudo-seizures (willful or voluntary seizure-like activity produced by the patient), as their presentation was not consistent with true seizures, and a 2017 CT scan read as normal. [4] [ 35 ] Another psychiatrist, Dr.

Klassen, wrote a court-ordered report in which he slightly favored a diagnosis of a factitious disorder with psychological symptoms, which is a disorder in which someone acts as if he has a mental illness by deliberately creating or exaggerating symptoms of illness. [5] [ 36 ] Dr.

De Frietas, in her 45-page assessment, did not rule out the diagnosis of schizophrenia but thought Aamusie’s reported psychotic symptoms were best explained by a combination of substance-induced psychotic disorder and malingering (faking symptoms to achieve some perceived benefit). [6] [ 37 ] She based this conclusion on her and her staff’s three-month period of observing Aamusie at Ontario Shores in 2019 and her review of his psychiatric history and other assessments.

While at Ontario Shores, observations of staff members did not support his reported symptoms, and psychological tests showed that he was most likely feigning symptoms of mental illness. [ 38 ] Given Dr. De Freitas’ extensive opportunity to observe Aamusie, her assessment was the most helpful to the court in shedding light on Aamusie’s mental state at the time of the incident. [7] [ 39 ] While Dr. De Freitas could not rule out the presence of a major mental illness, she believed it less likely than substance-induced psychotic disorder.

She felt that his history of bizarre behaviour and psychotic symptoms was likely the result of his extensive abuse of drugs and his feigning symptoms. [ 40 ] Dr. De Frietas’ medical opinion was that Aamusie committed the attack on KL because of intoxication. She found this to be consistent with his extensive substance use at the time and his history of violence when intoxicated.

Intoxication would explain a violent act on a random stranger without any clear motive. [ 41 ] She thought it might be possible he was experiencing psychotic symptoms at the time of the attack, but that it was difficult to determine this because of his inconsistent self-reporting. However, even giving him the benefit of the doubt and assuming that he was psychotic at the time, she thought it is likely that these symptoms were caused by his substance use and not a major mental illness. VII.

POSITIONS OF THE PARTIES [ 42 ] The Crown position is that a jail sentence of seven years is necessary to denounce the crime and deter others from committing similar attacks. [ 43 ] The Defence submits that a jail sentence of four to five years is more appropriate given the mitigating factors of the guilty plea, Aamusie’s young age, his lack of a criminal record, and his substance abuse and mental health problems. [ 44 ] Both counsel submit that the time Aamusie has spent in custody since his arrest should be taken off his sentence at an enhanced

rate of one and a half days for every day served. VIII. ANALYSIS [ 45 ] Attempted murder is one of the most serious offences in criminal law. Historically, courts have often imposed sentences for attempted murder that are more severe than in cases of manslaughter. This is due to the singular importance that the law places on a person’s intention to kill another human being. [ 46 ] As Lamer CJ of the Supreme Court of Canada pointed out in the 1990 case R v Logan , an attempted murderer is quite simply a “lucky murderer”. The stigma associated with a conviction for attempted murder is the same as for murder.

The attempted murderer is no less a killer than a murderer: he is lucky the knife did not hit an artery or pierce a vital organ, but his intent was the same. [ 47 ] Indeed, this case involves a clear intent to kill: Aamusie stabbed KL repeatedly in the chest and back and aimed for KL’s neck. A conviction for attempted murder does not automatically result in a life sentence as with a murder conviction. However, attempted murder is punishable by life in prison.

The penalty is almost always a lengthy penitentiary term. [8] [ 48 ] Even so, there is still a wide range of sentences for attempted murder because there are many different circumstances that can result in such a conviction. [9] In some cases, there are no injuries, and the victim is not even aware of the attempt. In other cases, such as the one before me, the injuries are serious. Some cases involve extensive planning, and others are more impulsive. [10] [ 49 ] Several aggravating factors place this case at the more serious end of the spectrum. The attack was unprovoked, and a deadly weapon was used.

The victim was an innocent boy working as a cashier in one of the few public gathering places in a small community. Aamusie stabbed vulnerable areas of KL’s body: he attacked KL’s chest, back, abdomen, and neck repeatedly and relentlessly. Even though others attempted to stop him, he persisted, chasing KL down a shopping aisle after the initial stabbings, then stabbing him in the back, pinning him, and repeatedly stabbing him again. [ 50 ] The 15 separate and significant stab wounds are a physical manifestation of Aamusie’s concerted and sustained effort to kill KL.

Without the heroic intervention of CO-OP store employees and customers, Aamusie likely would have killed KL. [ 51 ] The profound impact of the attack on KL and his family is also an aggravating factor. [ 52 ] Despite Aamusie’s lack of a criminal record, he has a troubling and significant history of violence and assaultive use of weapons, particularly when he is under the influence of drugs and/or alcohol. At the time of the offence, Aamusie was aware of his proclivity to be extremely violent when he abused drugs.

His knowledge that there was a chance he would exhibit extreme violence increases his moral culpability in relation to this attack committed while on drugs. IX. PRINCIPLES OF SENTENCING [ 53 ] The paramount principle of sentencing in this case is denunciation. The Court must impose a sentence that clearly reflects society’s condemnation of the crime.

The sentence imposed must also deter others from committing similar offences by communicating that a significant jail sentence will result if they do. [11] The message must be sent that people are responsible for their conduct, even when heavily intoxicated by drugs or alcohol. This is a serious crime which requires that the offender be separated from society, both for public safety and rehabilitation. [12] [ 54 ] Aamusie is a young Indigenous man with no prior criminal convictions.

As with all Indigenous offenders I must consider Gladue factors, which are the unique systemic or background factors which may have played a

part in bringing Aamusie before the court. [13] The factors present in this case are Aamusie’s drug and alcohol abuse, his mental health struggles, his troubled relationship with his father (as well as his father’s substance abuse issues and history of incarceration), as well as the fact his relationship with his mother was severed at a very young age.

[ 55 ] I must pay particular attention to the circumstances of this Indigenous offender. [14] Gladue requires me to consider the types of sentencing procedures and sanctions which may be appropriate for Aamusie because of his Inuit heritage. [15] Given the nature of the offence, there are no available sanctions other than imprisonment for Aamusie.

In addition, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for Indigenous and non-Indigenous individuals will be close to each other or the same, even taking into account their different concepts of sentencing. [16] [ 56 ] This does not mean that I should ignore Aamusie’s unique situation as an Indigenous offender. However, I am obliged to exercise my discretion as to the appropriate sentence, having regard to all relevant considerations.

Given the severity of Aamusie’s offence, the protection of society is paramount, and a lengthy custodial sentence is required. [17] X. CONCLUSION [ 57 ] The Crown’s position is fair, firm, and measured. It considers the aggravating factors in the case, as well as the mitigating factors of the guilty plea, the lack of previous convictions, mental health concerns, and Gladue factors. [ 58 ] If there is no alternative to incarceration, and I have concluded that there is not, Gladue requires that I carefully consider the length of the term. [18] I have done so.

Given the particularly aggravating facts in this case, Aamusie could have received a much lengthier jail sentence than the one sought by the Crown. This is one of the most disturbing cases of violence that has come before me as a judge in Nunavut. [ 59 ] Stand up Mr. Qaqasiq: I sentence you to 7 years jail, or 2555 days. I subtract from this sentence your pre-sentence custody of 924 days at a 1.5 to one ratio for a total of 1386 days. Accordingly, the sentence from today is a further 1,169 days jail, or approximately 3 years and 3 months. [ 60 ] There will be a DNA order which is mandatory.

There will be a 10-year firearms prohibition order pursuant to s. 109 of the Criminal Code . There will be a forfeiture order of the knife used in the attack. I waive the victim fine surcharge due to hardship. [ 61 ] Aamusie, you committed one of the most serious offences in criminal law and are now facing the consequences. The court appreciates that you took responsibility for your crime via your guilty plea and was pleased to hear that you have completed an anger management and substance abuse program while in custody.

The court hopes that you can continue to get the help you need for whatever issues you may have while you serve the remainder of your jail sentence. [ 62 ] The court further hopes for your sake and the sake of others that when you are released from custody you never hurt another person again. [ 63 ] I thank counsel for their able assistance with this difficult case. Dated at the City of Iqaluit this 27th day of October, 2020 ___________________ Justice C. Lyons Nunavut Court of Justice