2016 NUCJ 22 R v. Padluq
2016 NUCJ 22 R v. Padluq
2016 NUCJ 22 R v. Padluq
Date:
Docket:
Registry:
20160913
09-14-21
Iqaluit
Crown:
Accused
Pauloosie Padluq
________________________________________________________________________
Before:
Counsel (Crown):
Counsel (Accused):
Location Heard:
Date Heard:
Kimmirut, Nunavut
September 13, 2016
Matters:
I. BACKGROUND
[1]
[2]
[3]
[4]
[5]
[6]
[7]
[8]
[9]
[10] The Court would like to extend their sympathy to all of you who have
been impacted by this very tragic event.
[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 Qummuattuqs death by
penetrating his heart. It was 10.5 centimetres deep.
[23] Donny told Qummuattuq to go to the health centre. Instead,
Qummuattuq left Donnys 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 youre
killing me, man. Pauloosie then got up, dropped the knife near the
body, and walked away.
[24] The accuseds 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 Qummuattuqs 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 Donnys house to the body and from the
body to Pauloosies residence.
[26] Pauloosie Padluq was arrested and held in custody where he remains
today.
[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 section 718.1 requires that a sentence must be
proportionate to the gravity of the offence and the degree of
responsibility of the offender.
[39] Given the nature of Qummuattuqs 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 Qummuattuqs 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, Qummuattuqs 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 Pauloosies 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 several certificate
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 to
consume 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 specific circumstances
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, [1999] SCJ No 19, [1999] 1 SCR 688
(QL) [Gladue], and R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433
[Ipeelee], address the over representation of Aboriginal offenders in
our jails by both requiring and allowing a sentencing court to approach
their job from a restorative prospective --- both with respect to the
form of the sentence if an alternative to jail is possible, as well as the
length of the jail term where the offender has addressed the root
causes of his criminal behavior and where his 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 the court.
[54] Judges should take judicial notice of such matters as the history of
colonialism, displacement, and residential schools, and how that
history continues to translate into lower educational attainment, lower
incomes, higher unemployment, higher rates of substance abuse and
suicide, and of course higher levels of incarceration for Aboriginal
peoples.
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[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 Ive 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 offenders 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.
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[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!
___________________
Justice B. Tulloch
Nunavut Court of Justice