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Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE


Cour de justice du Nunavut
Citation:

R v. Padluq, 2016 NUCJ 22

Date:
Docket:
Registry:

20160913
09-14-21
Iqaluit

Crown:

Her Majesty the Queen


-and-

Accused

Pauloosie Padluq

________________________________________________________________________
Before:

The Honourable Madam Justice Tulloch

Counsel (Crown):
Counsel (Accused):

Caroline Lirette; Martin Tooke


James Morton

Location Heard:
Date Heard:

Kimmirut, Nunavut
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 Qummuattuqs family or friends


wished to take part in this hearing. I was told that they did not. This
morning we heard from Qummuattuqs 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 lifes 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 Pitseolaks 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 Pauloosies boat.
[15] Verbal sparring and arguing between Pauloosie and Qummuattuq
continued and, at about 1 a.m., Ben Akavak witnessed the accused
slap Qummuattuqs 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
Donnys 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 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.

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;
Pauloosies criminal record;
The exhibits filed and agreed to by counsel; and
The accuseds 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 section 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 someones 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 Padluqs 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 Pitseolaks kitchen to use against his adversary.

[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.

[55] However, these matters, on their own, do not necessarily justify a


different sentence for Aboriginal offenders. These background facts
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 right to have it
considered. The court requires viable sentencing alternatives to
imprisonment that may play a stronger role in restoring a sense of
balance to the offender, victim, and community, and in preventing
future crime. As with all sentencing, this must be done with regard to
the particular individual, the threat they pose, and their chances of
rehabilitation and reintegration. Evaluating these options lies within
the 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 has
articulated, the sentencing objectives of deterrence and denunciation
as part and parcel of fostering safe and secure communities are
values 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 worker
from Ontario.
[59] It is very helpful as it provides information about Pauloosie Padluqs
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.

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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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[72] The Crowns 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.

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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!

Dated at the City of Iqaluit this 13th day of September, 2016

___________________
Justice B. Tulloch
Nunavut Court of Justice