IN THE PROVINCIAL COURT OF SASKATCHEWAN

Citation: 2009 SKPC 35

Date: March 6, 2009 Information: 24335000Location: Rose Valley_____________________________________________________________________________

Between:

Her Majesty the Queen

- and -

Christopher Charles Pauchay

Appearing:

M. Beaton For the CrownR. Piché For the Accused

SENTENCE B. MORGAN, J

I. INTRODUCTION

[1] Mr. Pauchay has entered a guilty plea to the one count Information charging that on January

29, 2008 at Yellow Quill First Nation, Rose Valley District, Saskatchewan, he did by criminal

negligence to wit: by failing to protect Santana Pauchay and Kaydance Pauchay from exposure to

the elements, cause their death, contrary to s. 220(b) of the Criminal Code. Mr. Pauchay elected trial

by Provincial Court Judge, entered a guilty plea, and requested a Sentencing Circle. By decision

dated January 7, 2009 (2009 SKPC 004), I granted that request, and the Sentencing Circle was held

on February 13, 2009. On March 4, 2009, counsel for the Crown and Mr. Pauchay made further

submissions respecting sentencing. This decision provides my reasons for imposing the sentence

I am fixing today’s date.

-2-

II. THE FACTS

[2] The facts are not in dispute. I made specific findings in the earlier decision granting the

Sentencing Circle, and I will repeat them here for the sake of convenience.

[3] Mr. Pauchay was the father of two young girls, Kaydance, who would have been three years

old in January of 2008, and Santana, who would then have been fifteen months old.

[4] On Friday, January 25, 2008, Mr. Pauchay had an argument with his common-law partner.

As a result of that disagreement, she left the residence, leaving Mr. Pauchay at home for the weekend

to look after their two young daughters. The events of the weekend were otherwise not out of the

ordinary. On Sunday at approximately 5:30 in the afternoon, Mr. Pauchay got a ride into town to

get some groceries, at which time he purchased some alcohol. By his recollection, he purchased 24

beer and some hard liquor.

[5] He returned home, where he stayed with his children, although witnesses stated that he was

trying to find someone to drink with. He phoned his brother-in-law, Michael Keshayne, several

times throughout the evening looking for a drinking partner, but Mr. Keshayne declined.

[6] At approximately 12:00 a.m. Monday morning, that is just after midnight on the Sunday, Mr.

Pauchay presented himself at the door of his brother-in-law’s, asking for help. According to Mr.

Keshayne, Mr. Pauchay was intoxicated, and it was not clear what kind of help he needed. Mr.

Keshayne’s house was on the same First Nation that Mr. Pauchay resided at, approximately 150

metres away, across an open field. Mr. Keshayne indicated that Mr. Pauchay had a number of knives

stuck in his waistband, that he was dressed only in a long sleeved shirt, and that he was wanting Mr.

Keshayne to go back to Mr. Pauchay’s house with him. Before Mr. Keshayne could say anything,

Mr. Pauchay turned and ran back across the field to his house.

[7] Winter weather in Saskatchewan can range from reasonably moderate to bitterly cold. At this

particular time, the temperature ranged from -42 to -50 degrees Celsius, including the wind chill.

-3-

The prosecutor described the weather as being almost blizzard-like.

[8] Mr. Keshayne drove over to Mr. Pauchay’s house, and stated that when he arrived there, Mr.

Pauchay was putting knives underneath the couch cushions. His two daughters were still awake, and

appeared to be fine. There was no other adult in the house. Mr. Keshayne offered to take the girls

back to his house, because it was clear to him that Mr. Pauchay was intoxicated. Mr. Pauchay

declined that offer, and stated that he could look after the children. Mr. Keshayne told Mr. Pauchay

not to drink anymore, and left after approximately 20 minutes. It was never established exactly what

kind of assistance Mr. Pauchay was seeking.

[9] Some time later, Mr. Pauchay phoned Mr. Keshayne again, and although Mr. Keshayne

didn’t answer the phone, he stated that one of his children had answered the phone, and that child

did not know what it was that Mr. Pauchay wanted.

[10] At approximately 5:00 a.m., Ms. Darlene Ahpay, a next-door neighbour of Mr. Keshayne’s,

heard a commotion outside, and heard someone thumping at her door. She looked outside and saw

Mr. Pauchay kneeling at her door; he was slobbering, disoriented, had a strong smell of alcohol about

him, and was foaming at the mouth. She said he had two short knives in his back pockets. She

noted sliding marks in the snow in the area leading to her door, that is, marks that would have been

caused by someone falling or stumbling through the snow. She let Mr. Pauchay in and called 9-1-1,

as she had obvious concerns about Mr. Pauchay. Ambulance attendants came, as well as the police,

because Mr. Pauchay was becoming aggressive. It was noted that he was not coherent, and was not

able to communicate. He was sedated, and brought to a hospital in Kelvington, a community in the

area. At the hospital, Mr. Pauchay was swearing a lot. It was confirmed that he was suffering from

hypothermia. He had frostbite, and was still, at this point, under some effects of alcohol. A urine

sample was taken at 8:00 a.m., and analysed with a reading of 295. As Ms. Beaton pointed out, this

is not comparable to a true blood alcohol concentration, expressed in the usual fashion as being a

number of milligrams of alcohol in 100 millilitres of blood, as the alcohol is no longer in the blood

and collects in the urine. A blood alcohol concentration for Mr. Pauchay was not presented to the

Court. It is common knowledge, however, that Mr. Pauchay was certainly intoxicated at the time

-4-

he showed up at Ms. Ahpay’s door.

[11] It was not until approximately 1:30 in the afternoon that Mr. Pauchay became more

responsive, and wanted to speak to the nurses. As he became more aware of his surroundings, he

was asking about his children, and inquiring where they were. At this point, the nurses at the

hospital called the RCMP, and members of the RCMP started to search for the children. They tried

various family members and neighbours, all to no avail. Mr. Pauchay eventually was able to make

a recommendation that the field be checked, stating that he thought he was in the field and thought

he was carrying his baby. At that point, the police started to check the field. This field that Mr.

Pauchay had traversed a couple of times that night is bounded by streets on all four sides, with

houses facing the streets. In essence, this field area is the centre of a block between houses.

[12] At approximately 4:30 that afternoon, RCMP members and other civilians who were assisting

in the search made a tragic discovery of the body of 15 month old Santana, covered in the snow, clad

only in a diaper and short sleeved t-shirt. Santana’s body was found along the route that it appeared

Mr. Pauchay had followed, a route on which it appears, based on marks in the snow, that he had

fallen down at 11 separate locations.

[13] It was not until 11:00 a.m. the next morning that police made the second tragic discovery,

that being the body of three year old Kaydance. She was slightly closer to Mr. Pauchay’s house,

although not along the route that Mr. Pauchay had followed himself. She was dressed in a diaper

and a long sleeved adult’s shirt.

[14] Both girls died of hypothermia.

[15] Mr. Pauchay had told nurses, as well as the police, that for some reason he thought his baby

had been hurt and needed help, that he panicked, and he was trying to get to his brother-in-law’s.

He stated that he remembered holding his baby, that it was very cold and very windy, that he was

drunk, and that he had difficulty walking straight.

-5-

[16] Although there was what appeared to be a recent cut on Kaydance’s leg, I am not able to

conclude, nor is it alleged by the Crown, that the cut was caused by a knife, or that the knives played

any particular role in events. It is clear there were a number of knives in the possession of Mr.

Pauchay, some of which were found scattered in the snow.

[17] It is also not in dispute that, inside the residence, police found clothing for the children, such

as coats, boots, mitts, and other warm clothing that a child would need if she were to be outside in

those particular weather conditions.

[18] Mr. Pauchay admits his criminal record. The record includes 51 entries, starting in 1998,

when Mr. Pauchay was 14 years old, to May of 2007, when Mr. Pauchay was 24. This record

includes 16 convictions for failing to comply with Court orders, 10 thefts, 8 charges of breaking and

entering, 5 counts of possession of stolen property, 4 counts of mischief, 3 counts of failing to attend

Court, and single convictions for careless use of a firearm, arson, attempted theft, being unlawfully

at large, and an assault.

III. POSITION OF THE PARTIES

The Crown

[19] Ms. Beaton stresses that the sentence must be one that protects the public and is fit and just

in the circumstances. She points out the factors that I must consider include the gravity of the

offence, deterrence, both specific and general, the reformation of the offender, and the need to

maintain the integrity of the justice system. She argues that the sentence must be proportionate to

the seriousness of the offence. She points to two specific sections of the Criminal Code that deal

with what are deemed to be aggravating circumstances. Section 718.2 (ii.1) refers to the abuse of

a person under the age of eighteen years, and s. 718.2 (iii) refers to the abuse of a position of trust

or authority. She argues that both these factors are present here, and argues that this offence

constitutes child abuse.

-6-

[20] She also notes the applicability of s. 718.01, which states that the Court must give “primary

consideration to the objectives of denunciation and deterrence” when sentencing for an offence that

involves the abuse of a child.

[21] Dealing with specific sentencing options that are available to me, she argues that neither a

fine or probation could possibly be appropriate in these circumstances, as neither sentence would

accord with the required sentencing principles. Her position is that even if I were to consider a

conditional sentence as an option (and she is certainly not suggesting such a sentence is appropriate),

such a sentence would not be legally possible. This is so, she points out, because s. 742.1 of the

Code, the section that allows for the imposition of a conditional sentence, was amended in December

of 2007 such that such a sentence is no longer available for a “serious personal injury offence” as

that term is specifically defined in s. 742. In support of that position she relies on the decision of the

Ontario Court of Appeal in the case of R. v. Nusrat, 2009 CarswellOnt 114, 2009 ONCA 31, which

held, at paragraph 32, that the effect of the amendment is that “the new language would preclude an

offender convicted of criminal negligence causing death from being eligible for a conditional

sentence”.

[22] In sum, her argument is that the gravity of the offence clearly calls for incarceration and as

such a sentence can’t be served in the community, the question really becomes how long the period

of incarceration should be. She referred to a number of cases she had filed at an earlier stage of these

proceedings, as well as the case of R. v. G. (T.M.), 1999 CarswellSask 399, 179 Sask. R. 280 (Q.B.),

all of which resulted in sentences of between 3 and 4 years for driving offences which resulted in

death. She distinguished cases that resulted in lower sentences, and stressed that a major factor in

this case is the length of Mr. Pauchay’s criminal record generally. Overall, it is her view that Mr.

Pauchay has a high degree of culpability for this offence. The gravamen of this offence, she argues,

lies in his decision to start to consume alcohol, and in continuing to consume alcohol to the point

to which he was incapable of protecting his children, who were totally dependent upon him.

[23] Ms. Beaton accepts that Mr. Pauchay certainly didn’t intend such disastrous consequences,

but he did intend to drink. She accepts that he grieves for his daughters but questions whether he has

-7-

really taken responsibility for their deaths. She argues that this is an extremely serious offence, that

a penitentiary term is the only appropriate sentence, and suggests such a term should lie between 2½

and 5 years. She also seeks the mandatory firearm order and a D.N.A. order.

The Defence

[24] Mr. Piché refers to a number of mitigating factors respecting Mr. Pauchay. He notes that

Mr. Pauchay elected trial at Provincial Court, which resulted in an early resolution of matters through

the entry of a genuine and heartfelt plea of guilty. He argues that it is not accurate to say that Mr.

Pauchay is denying responsibility. Rather, he says, it is clear that Mr. Pauchay both has, and has

expressed, a great deal of remorse. He points out that Mr. Pauchay was a doting father to his two

girls and that he was a primary caregiver for them.

[25] Mr. Piché accepts that Mr. Pauchay has struggled with his afflictions, but questions how

anyone in his client’s position would react. He points out that Mr. Pauchay did all the preparatory

work for arranging entry into in-patient treatment, referring to this steps to try to get into the Calder

Centre, an alcohol treatment centre in Saskatoon, at the time he was arrested in January of this year

for allegedly breaching his release conditions.

[26] He also stresses that there is a tremendous amount of community support for Mr. Pauchay,

as evidenced by the Sentencing Circle. He notes that the role of the circle is to provide insight and

its collective wisdom, and he argues that the circle brought to the proceedings a clear view of the

possibilities of restorative justice. He states that the community support was both genuine and

heartfelt.

[27] He spoke of Mr. Pauchay’s risk to re-offend, as referenced in the pre-sentence report, as

being high, and he noted that the Crown relies heavily on his client’s past criminal record. He argues

that the correct approach to take, when I am considering that record, is to ask myself what bearing

the record has on the offence that is before the Court at this time.

-8-

[28] He notes that this is a unique case. The majority of reported cases in this area deal with the

operation of a motor vehicle, often in concert with the consumption of alcohol. In one such case,

R. v. John, 2004 SKCA 13 (CanLII), our Court of Appeal reviewed a number of such cases and

determined that the appropriate range in that case was twelve months to two years, and imposed a

conditional sentence order.

[29] With respect to deterrence, he argues that there is no need for specific deterrence, that is,

deterrence aimed at Mr. Pauchay. He questions the value of deterrence generally in this case, due

to the unique circumstances of this offence. He notes that this is not a case such as a driving offence,

in which the person makes a conscious effort to drive. Rather, he says, Mr. Pauchay had a

momentary lapse of judgment, based on his belief that his daughter needed assistance; in all, he

argues, Mr. Pauchay’s level of culpability is at the lower end of the scale.

[30] Mr. Piché argues that there is a distinction between a “community based sentence”, which

is a probationary term and a possible sentence under the Code provisions, and a “conditional

sentence”, which appears not to be available due to the wording of the amendment. At the outside,

he argues, a jail sentence should be no more that eighteen months, followed by a lengthy term of

probation. He stresses that I should not ignore the principles of sentencing that seek to ensure that

incarceration is seen as a last resort, and that I should give priority, in this case, to the rehabilitation

of Mr. Pauchay. The probationary period, either alone or following a jail sentence, should address

abstention from alcohol, treatment for his alcohol abuse, and reporting conditions.

Mr. Pauchay

[31] Mr. Pauchay addressed the Court, and spoke of how he missed his daughters, specifically

noting that no one could relate to how he felt. He acknowledged that he made a wrong decision in

drinking on the night of the tragedy. He disputed the view that he said some people have of him, that

being the assumption that he hasn’t done anything about his alcohol problem, noting that just

because it isn’t on a piece of paper does not mean that he wasn’t helping himself. He repeated some

of the comments he had made at the Sentencing Circle, questioning what prison was going to do for

-9-

him, and how he was being kept from the things he loved to do. He was appreciative of the decision

to grant him a sentencing circle.

IV. THE LAW

[32] The purpose and principles of sentencing are set out in s. 718 through 718.2 of the Criminal

Code. These sections read as follows:

718. The fundamental purpose of sentencing is to contribute, alongwith crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society by imposing justsanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

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

(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 thecommunity; and

(f) to promote a sense of responsibility in offenders, andacknowledgment of the harm done to victims and to thecommunity.

718.01 When a court imposes a sentence for an offence that involvedthe abuse of a person under the age of eighteen years, it shall giveprimary consideration to the objectives of denunciation anddeterrence of such conduct.

718.1 A sentence must be proportionate to the gravity of the offenceand the degree of responsibility of the offender.

718.2 A court that imposes a sentence shall also take intoconsideration the following principles:

-10-

(a) a sentence should be increased or reduced to account forany relevant aggravating or mitigating circumstances relatingto the offence or the offender, and, without limiting thegenerality of the foregoing,

(i) evidence that the offence was motivated by bias,prejudice or hate based on race, national or ethnicorigin, language, colour, religion, sex, age, mental orphysical disability, sexual orientation, or any othersimilar factor,

(ii) evidence that the offender, in committing theoffence, abused the offender’s spouse or common-lawpartner,

(ii.1) evidence that the offender, in committing theoffence, abused a person under the age of eighteenyears,

(iii) evidence that the offender, in committing theoffence, abused a position of trust or authority inrelation to the victim,

(iv) evidence that the offence was committed for thebenefit of, at the direction of or in association with acriminal organization, or

(v) evidence that the offence was a terrorism offence

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed onsimilar offenders for similar offences committed in similarcircumstances;

(c) where consecutive sentences are imposed, the combinedsentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if lessrestrictive sanctions may be appropriate in the circumstances;and

(e) all available sanctions other than imprisonment that arereasonable in the circumstances should be considered for alloffenders, with particular attention to the circumstances of

-11-

aboriginal offenders.

[33] These principles are not applied in a vacuum. In constructing a fit sentence, judges are

expected to review other prior decided cases, as this allows a sentence imposed in an individual case

to more closely align with the objective set out in s. 718.2(b), that is, ensuring that similar sentences

are imposed for similar offences, often called the parity principle. So, for example, there are a

number of precedents that set a range for the offence of driving while disqualified, committed by an

individual with a lengthy record for such offences. As I pointed out in my earlier decision, however,

the range of sentencing for the offence of criminal negligence causing death is very wide.

The difficulty in establishing a range for such an offence was commented on by Gary R. Clewley and

Paul G. McDermott, Sentencing: The Practitioner’s Guide, (Aurora: Canada Law Book) at page 8-5,

paragraph 8:40, citing R. v. Linden, [2000] O.J. No. 2789, 135 O.A.C. 193, 147 C.C.C. (3d) 299

(C.A.). Although that case dealt with reckless driving coupled with the consumption of alcohol, the

principle remains applicable to this case:

If there was any error by the trial judge, it was in assuming that there was a set rangefor the offence of criminal negligence causing death. The cases demonstrate thatcriminal negligence causing death can be committed in so many different ways thatit defies the range setting exercise. The cases do not demonstrate a range, only aseries of examples that are driven by the almost infinite variety of circumstances inwhich this offence can be committed ... cases can be found in the reformatory range,and there are even examples of suspended sentences.

To the extent that a range has been set in Saskatchewan for criminal negligence causing death arising

out of the operation of a motor vehicle, based on the cases that have been referred to in this case, that

range would seem to be between a low of 12 months, as in John, supra, and as high as seven years,

as referred to in R. v. Weeseekase, 158 Sask. R. 245 (C.A.), as referred to in G. (T.M.), supra.

[34] Some of those cases were discussed in my earlier decision, and there is no point repeating

them here. I simply raise at this point that constructing a fit sentence requires a careful analysis of

the sentencing principles dealt with above.

[35] In addition to referring to prior cases, Courts have the advantage of ordering a pre-sentence

-12-

report, a step that has been taken in this case. In addition, of course, there was input from the

community, as well as Mr. Pauchay, garnered both through the Sentencing Circle process and the

submissions made March 4, 2009.

V. DISCUSSION

a) The pre-sentence report

[36] I will start with the pre-sentence report. Mr. Pauchay began a common-law relationship with

Tracey Jimmy when he was 18 years old. The couple had three children, their two deceased

daughters, and a daughter who was born in April of 2008. The pre-sentence report suggests that their

relationship was marked by frequent separations, as well as arguments respecting discipline of the

children, and money. It appears each partner abused alcohol during the relationship.

[37] There are issues with the Ministry of Social Services respecting Mr. Pauchay and Ms. Jimmy

and their youngest child, which I comment on only to put matters into context and perspective. At

this time, their youngest child remains on apprehended status.

[38] It appears from a review of the pre-sentence report that both Mr. Pauchay and his partner

Tracey Jimmy have drawn support from the traditional Aboriginal support system on Yellow Quill,

more so since approximately August of 2008.

[39] The report further suggests that Mr. Pauchay has had problems with alcohol abuse for a

number of years, noting that, by the age of 15, he was drinking openly, participating in binge

drinking, and experiencing cravings. It appears these alcohol issues remained problematic for Mr.

Pauchay up until the date of these offences in January of 2008. He indicated to the author of the

report that he had a period of sobriety after his daughters died, although once his daughter was

apprehended in September of 2008, he was observed to be using alcohol again. It is clear from the

report, as well as other sources, that Mr. Pauchay will require intensive treatment for alcohol abuse.

-13-

[40] Mr. Pauchay has a grade 10 education, and his work history consists primarily of

employment as a labourer. In May of 2008, he started a job conducting night security at the school

on Yellow Quill First Nation, although he was let go in October of 2008 after he failed to show up

for work for three weeks. Again, it is of note that this occurred shortly after his youngest child was

apprehended. He then went back on social assistance from his Band.

[41] Mr. Pauchay remained on court release until January of 2009 when he was remanded into

custody as a result of allegations of failing to abstain from alcohol consumption on December 13,

2008, and again on January 8, 2009. Those matters remain before the Court.

[42] The pre-sentence report contains additional information respecting Mr. Pauchay’s prior

criminal involvement. The report indicates that alcohol use was a contributing factor to his criminal

behaviour. It indicates that Mr. Pauchay did complete in-patient treatment in February of 2003, but

was only able to maintain sobriety for a few months before relapsing. While on probation which

expired in October of 2003, Mr. Pauchay was seeing an addictions counsellor, completed in-patient

treatment, and was attending school, although he did return to the use of alcohol and drugs. At the

time of committing the offences for which he was convicted in October of 2004, he had been

drinking. The report notes that, for his most recent community based supervision in 2007, imposed

after he was convicted of an assault and a fail to attend Court, he attended only one appointment with

his probation officer. Subsequent efforts to have him report for supervision were not successful,

based on, according to the report, the fact that he had both failed to report and failed to advise his

probation officer of the change of address.

[43] As detailed in this decision, at the time of this offence for which Mr. Pauchay is being

sentenced, he was severely intoxicated. Mr. Pauchay is unable to provide particulars or information

respecting what it was that led to his actions, other than his comments that he perceived some danger

or injury to one or both of his daughters. Be that as it may, it is of significance that the children’s

deaths are directly attributable to Mr. Pauchay’s actions in taking them outside in frigid winter

conditions, clad only in light clothing. These children were totally dependent upon Mr. Pauchay, and

he was the sole caregiver of them for the weekend.

-14-

[44] With respect to the Gladue factors, the pre-sentence report notes that Mr. Pauchay has been

exposed to substance abuse within his family and on the Reserve, both as a child and as an adult.

He experienced the breakdown of his parents’ relationship, and has been the victim of racist name

calling. Further, he has been separated from his family and community for a three year period in

which he attended a residential school.

[45] Mr. Pauchay “has a pattern of seeking out or spending time with peers who are substance

abusers”. Issues respecting alcohol have plagued Mr. Pauchay for years. The report makes the

following comment under the heading Attitude:

There is no question that Christopher feels extreme guilt and remorseover his actions that lead [sic] to the loss of his daughters. This said,what does need to be addressed in the future is his attitude towardcriminal behaviour in general. His actions speak to his attitude. Forexample, Christopher told this writer the contributing factors for hisconvictions for failing to comply with Court orders were that he hada non-caring attitude and took chances. Time needs to be spent inone-on-one counselling or group programming to address how histhoughts, feelings and beliefs have contributed to this risk area andhow to replace negative habits with positive ones.

[46] The report concludes by noting that it “will take considerable will-power and commitment

on Christopher’s part to show he is sincere and to change this perception”. It indicates that

intervention strategies would be available both in the community, if a community based sentence

were imposed, either on its own or following a period of incarceration, and that there is also

programming available at both the Saskatchewan Penitentiary and the Regina Correctional Centre

that would be available.

b) The Sentencing Circle

[47] The circle was comprised of the following individuals:

Doug Gamble, a facilitatorRon Piché, defence counselChristopher Pauchay, the offender

-15-

Charlie Machiskinic, his fatherJo Anne Machiskinic, his step-motherPearl Pauchay, his motherHoward Walker, an interpreter and community leader from Sturgeon Lake First NationJohn Pauchay, Band Councilor from Yellow Quill First NationVernon Knight, a facilitatorOvid Campbell, an interpreterEvelyn Burns, from James Smith First Nation and Marguerite Riel CentreDr. Raj Hathiramani, mental health therapistMargaret Roper, surrogate victimSabrina Pauchay, surrogate victim and sister of the offenderJean Larson, probation officer and author of the pre-sentence reportJoy Newberry, court worker, Metis Nation, ArcherwillCorporal Matt Peggs, Royal Canadian Mounted PoliceLeona Nippi, community memberTracey Jimmy, spouse of Mr. Pauchay and mother of the victimsMary Rose Naytowhow, senior female elder from Sturgeon Lake First NationMarylynne Beaton, Crown prosecutorJoe Crowe, senior elder, Yellow Quill First NationJudge Barry Morgan

As well, there were a number of other individuals in the outer circle who were there for support and

to assist the participants. Derrick Cameron assisted the facilitators, and Mr. Francis Nippi, a

respected elder of the community, addressed the circle as well.

[48] It was readily apparent that the community at Yellow Quill, as well as neighbouring First

Nation communities, have taken a keen interest in this matter and, in particular, offer strong support

for Mr. Pauchay. It was equally clear to me that this tragedy has had a devastating effect on

members of Mr. Pauchay’s family, and members of the community at large. Despite that pain and

the loss the community suffered, the participants all spoke of a desire to support Mr. Pauchay in his

rehabilitation. Each of his father, Charlie Machiskinic, his mother Pearl Pauchay, and his step-

mother Jo Anne Machiskinic spoke of their commitment to Mr. Pauchay. Dr. Raj Hathiramani, the

mental health therapist at Yellow Quill First Nation, provided a comprehensive community healing

plan that contained twelve specific recommendations, some that were designed to address

community issues well beyond the scope of the Sentencing Circle. Of those recommendations that

did deal specifically with Mr. Pauchay’s situation, one was to set up a strong support system for him,

one was to lift the no contact clause between Mr. Pauchay and his spouse Ms. Jimmy so that they

-16-

could begin to heal, and another was to have Mr. Pauchay and Ms. Jimmy address addiction issues

together. Tracey Jimmy, spouse of Mr. Pauchay and mother of the victims, made an impassioned

plea to be reunited with her husband.

[49] Many individuals who spoke at the Circle noted that this tragedy was not the result of any

attempt by Mr. Pauchay to harm anyone; that lack of intent, it was reasoned, should weigh heavily

in favour of a more restorative approach to sentencing in this case. I certainly accept that there was

no harm intended by Mr. Pauchay; clearly, he loved his daughters, and I have no reason to believe

that he would have intentionally harmed them. That being said, however, the fact of the matter is

that the charge that he has plead guilty to is criminal negligence, that is, conduct that is defined in

s. 219, the definitional section, as showing “wanton or reckless disregard for the lives or safety of

other persons”. There is no question that Mr. Pauchay’s conduct that night showed such a wanton

and reckless disregard, and the consequences of his actions were the deaths of two innocent children.

It is true that the deaths were not intended, and in that sense were accidental. However, it cannot be

said that the causes that led to those deaths were accidental.

[50] At the Sentencing Circle, Mr. Pauchay was asked by the facilitator, Mr. Doug Gamble, why

he had requested the Sentencing Circle process. It was clear that Mr. Pauchay was wrought with

emotion. Initially, he was unable to respond, although he did note that he couldn’t argue with the

facts. He spoke movingly of the close bond he felt with his children, and he spoke with longing of

a desire to reconnect with both his spouse and his youngest daughter.

[51] During the recommendation stage of the circle, it was again made clear that the participants

felt that it was time for Mr. Pauchay to begin the healing process. Mr. Francis Nippi, a respected

elder of the community, recommended that Mr. Pauchay be required to serve the elders of the

community for the rest of his life, as a reminder that the Creator had not left him. That sentiment

was echoed by other elders, some of whom queried whether or not the healing journey could start

under the present circumstances in which Mr. Pauchay is separated from his partner. Many

individuals spoke of the need for Tracey Jimmy and Christopher Pauchay to take counselling

together, and the need for them to get reconnected with their youngest daughter, points I addressed

-17-

earlier as being raised by Dr. Hathiramani.

[52] In reply to that, Mr. Pauchay spoke of how he was affected by the loss of his children, and

spoke movingly as to the close rapport he had established with his youngest daughter. He says when

she was taken away from him, that brought memories back of the night when he lost his other two

daughters, and he commented that people had caused him pain when they took his youngest daughter

away, noting that “my rights didn’t matter”. Although he apologized to the group for his “bad

behaviour and actions and poor leadership”, he also noted that, as far as being charged, he really

disagreed with that. He spoke of how his being kept away from his daughter, who was the only one

who kept him sober, was hard. He noted that forgiveness goes a long way, and he noted that being

punished was putting him in a cycle which was keeping him away from doing the things he liked

doing.

[53] The Sentencing Circle helped give me valuable insight into the view of Mr. Pauchay’s

community towards Mr. Pauchay and to the problems that community faces, problems that were

brought home in a tragic way by the death of the two girls. The concern expressed for Mr. Pauchay,

and the community leaders’ commitment to work to improve the quality of life for the residents of

the Yellow Quill First Nation, are patently obvious. I am not able to accede to the requests, however,

that would have Mr. Pauchay work for the elders for such an extended period of time as was

suggested, or that would reunite Mr. Pauchay and Ms. Jimmy with their daughter; these are not

things I have the power to do. Despite that, I am grateful to the community for sharing their views

with me, and I thank the community for the help they have given me in this difficult task.

VI. ANALYSIS

[54] It was my impression from observing him at the Sentencing Circle that Mr. Pauchay lacks

insight into the reasons for his offending behaviour. For example, despite the numerous

recommendations by members of his community that he simply had to get his drinking problem

under control, and what I perceived to be a clear direction from the community that they would assist

him in that endeavour, I did not feel that at any time Mr. Pauchay made a commitment to do that.

-18-

In looking at his record, it is abundantly clear that there are some issues in his life that must be

addressed; one does not amass 51 convictions without there being some underlying problems that

require addressing. The circumstances of the offence to which he has pled guilty, and the

background as set out in the pre-sentence report, make it abundantly clear that abuse of alcohol is

a significant contributing factor to Mr. Pauchay’s offending behaviour. However, despite that, and

despite the numerous offers to help from community members, Mr. Pauchay failed to commit to

addressing that issue.

[55] I also note that Mr. Pauchay appears unable or unwilling to accept personal responsibility for

some of the problems he faces. For example, he expressed disappointment that he is restricted in

the contact he has with his daughter, and seems to place the blame for that with the Ministry of

Social Services in taking his daughter away. This apprehension occurred, according to the pre-

sentence report, because Ms. Jimmy and Mr. Pauchay were continuing to have contact. In this

assessment of the situation, Mr. Pauchay fails to acknowledge the reference to the fact that he was

charged, on June 2, 2008, with committing an assault on Tracey Jimmy. He provided an

Undertaking to a peace officer or an officer in charge, respecting that allegation, in which he agreed

to abstain from communicating with Tracey Jimmy or from going to two specific houses on Yellow

Quill. I believe this apprehension occurred sometime around September of 2008, at which time Ms.

Jimmy had moved back to Yellow Quill First Nation, after briefly relocating to Regina, albeit

apparently at the behest of a family services worker made following the assault allegation of June.

To be clear, I note that this particular matter remains before the Court and Mr. Pauchay has not

entered a plea on that charge. I raise it only insofar as that charge is the reason he has restrictions

on whom he can have contact with; to deflect the reason for the non contact onto a government

agency shows a complete lack of understanding as to the reasons for that particular prohibition.

[56] The same general comments pertain with respect to Mr. Pauchay’s view that his present

circumstances, in which he is remanded, are unfortunate. Again, without in any way commenting

on Mr. Pauchay’s guilt or innocence on matters that remain before the Court, the reason he was

arrested was for allegations that he had recently breached his release conditions respecting abstention

from alcohol.

-19-

[57] In observing Mr. Pauchay, I am satisfied that many of his comments, comments that could

be seen in a negative light, do not necessarily have that intention. As Mr. Piché points out, when Mr.

Pauchay suggests that he should not have been charged, he means that to say that he has suffered

greatly in his own way, and that formal punishment through the justice system may pale in

comparison to the punishment Mr. Pauchay suffers every time he thinks of this tragedy. I accept that

Mr. Pauchay was having a difficult time articulating his feelings. Be that as it may, I remain of the

view, based on all of the material before me, that he still lacks a fundamental appreciation of the

need for him to address his offending behaviour in a meaningful way.

[58] In R. v. Keshane, 257 Sask. R. 161, 2005 SKCA 18, our Court of Appeal provided some

guidance in interpreting the fundamental principle of sentencing set out in s. 718.1, which states that

a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the

offender. Speaking to “the gravity of the offence”, the Court held:

The gravity of an offence lies in the nature and comparativeseriousness of the offence, in the circumstances of its commission,and in the harm caused. (At paragraph 23)

[59] The maximum punishment for causing death by criminal negligence is imprisonment for life.

As mentioned earlier, this type of offence can occur in a multitude of ways. Sentences can range

from suspended sentences to lengthy periods of incarceration in a federal penitentiary. The fact that

Parliament has seen fit to leave open the possibility of life imprisonment shows that the offence is

viewed as an extremely serious one.

[60] Looking at the circumstances of this offence, I note that Mr. Pauchay was the sole caregiver

of these children on the weekend that this tragedy occurred. Despite being charged with that

responsibility, he made a conscious decision to leave the house and obtain alcohol. He then drank

himself into a state in which he was unable to discharge the most basic care giving responsibility

of ensuring the physical safety of his totally dependent daughters. He left the children unattended

the first time while he stumbled to his brother-in-law’s house, precipitating the brother-in-law going

-20-

to his residence, offering to take the children into his care, and advising Mr. Pauchay to stop

drinking. Rather than take either of those steps, he continued to drink and ultimately left the

residence in brutal weather with both children in tow. The children were completely helpless and

vulnerable, and were totally dependent upon Mr. Pauchay for their care. Mr. Pauchay’s conduct that

night clearly demonstrated a wanton and reckless disregard for the lives and safety of his children.

[61] Counsel have different views as to what the appropriate time frame to consider is on this

offence. Ms. Beaton argues that the offending behaviour starts at the time Mr. Pauchay went into

town to purchase alcohol, and continued throughout the evening each time he made a decision to

drink again, or to turn down the offer of his brother-in-law to look after the children, culminating in

his decision to leave the house with the girls that night. Mr. Piché argues that the offence really

occurs when he made a “momentary lapse of judgment”. In my view, I cannot take such a restrictive

approach to the facts as is suggested by Mr. Piché. Each case is of course dependant upon the

circumstances of the offence and the offender. Here, all of the surrounding facts are relevant to the

offence charged. In this case, the lapse of judgment demonstrated by Mr. Pauchay was the

culmination of a string of events, all of which are directly relevant to his culpability and

responsibility.

[62] The Court in Keshane, supra, noted that the degree of responsibility of the offender is

basically “the extent of his moral culpability” (paragraph 28). In Keshane, the Court noted that the

individual in that case, a case of a brutal assault, “acted deliberately, while in command of his

faculties”. Although Mr. Pauchay acted deliberately, he did so here insofar as his actions rendered

himself incapable of exercising sound judgment. Clearly, his alcohol consumption played a primary

role in his actions. His consumption of that alcohol, in these circumstances, places his moral

culpability at the higher end of the range.

[63] His use of alcohol that night, his prior record generally, the lack of insight into the causes of

his offending behaviour, and the helplessness of his victims are all aggravating factors. I again note

the extremely young ages of these children, and the fact that Mr. Pauchay was the sole caregiver of

these children and, in that position, stood in a position of trust to them. Section 718.2 (a) (ii.1) and

-21-

(iii) mandate that these latter two points in particular be viewed as aggravating factors.

[64] In assessing the applicability of s. 718.2 (e) of the Code, I am mindful of the comments

contained in R. v. Cappo, 2005 SKCA 134, 269 Sask. R. 311, and the reference therein to the

decision of R. v. Andres, 223 Sask. R. 121 (C.A.), in which the Court of Appeal makes clear that

sentencing judges “must give attention to the unique background and systemic factors which may

have played a part in bringing the particular offender before the courts.” (At paragraph 16, citing R.

v. Gladue, [1999] 1 S.C.R. 688.) In this case, I am mindful of the background from which Mr.

Pauchay comes, and I have considered to what extent he has, to use a phrase from Cappo, “been

disadvantaged in any way that could be related to the offence which he committed”. Although there

is no doubt that Mr. Pauchay has been exposed to substance abuse both in his home and in his

community, and that poverty has always been a part of his life, that does not end the inquiry.

Alcohol was the precipitating factor here, but it cannot act in mitigation in these circumstances,

given his lengthy record, and considering his past failure to address his alcohol issues despite

numerous opportunities to do so.

[65] As mentioned earlier, the position of Ms. Beaton is that a penitentiary term is the only

appropriate response to properly address the sentencing principles. I have considered the cases she

has relied on both at the time the application for the Sentencing Circle was argued, and the cases she

relied on in argument March 4: R. v. Cheekinew, 1993 CarswellSask 291, 80 C.C.C. (3d) 143, [1993]

3 C.N.L.R. 172, 108 Sask. R. 114; R. v. Taylor, 37 W.C.B. (2d) 286 (Sask. C.A.); R. v. Kahnapace,

2001 SKCA 55 (CanLII), 207 Sask. R. 247; R. v. Joseyounen, [1995] 6 W.W.R. 438, [1996] 1

C.N.L.R. 182 (P.C.); R. v. Cappo, supra; R. v. McDonald, [1997] 4 W.W.R. 318, 152 Sask. R. 81,

113 C.C.C. (3d) 418, 5 C.R. (5 ) 189, 25 M.V.R. (3d) 1 (C.A.); R. v. Miller, 1993 SKCA (SentDig)th

72; R. v. Clarke, 1993 SKCA (SentDig) 72; R. v. Kahpeepatow, 1991 SKCA (SentDig) 104, 97 Sask.

R. 90, 31 M.V.R. (2d) 132; R. v. Paul, 1991 SKCA (SentDig) 32, 89 Sask. R. 199, 27 M.V.R. (2d)

161; R. v. Keller, 1997 SKCA (SentDig) 50, 158 Sask. R. 181, 31 M.V.R. (3d) 65; R. v. Nawakayas,

1994 SKCA (SentDig) 72, 123 Sask. R. 58; R. v. Ewen, 2000 SKCA (SentDig) 11, 189 Sask. R. 239,

144 C.C.C. (3d) 277; R. v. McGinn, 1989 CarswellSask 359, 75 Sask. R. 161, 49 C.C.C. (3d) 137

(C.A.); R. v. Nusrat, 2009 CarswellOnt 114, 2009 ONCA 31; R. v. G. (T.M.), 1999 CarswellSask

-22-

399, 179 Sask. R. 280.

[66] Mr. Piché argues that the principles of promoting a sense of responsibility in Mr. Pauchay,

and having him acknowledge the harm he has done through community involvement and

supervision, are to be given priority in this case. He argues that Mr. Pauchay has suffered enough,

and that there is little to be gained in focusing on the principles of general or specific deterrence in

the unique circumstances of this case. He points out that in R. v. V.K., 2006 SKPC 79 (CanLII), 284

Sask. R. 55, the offender was granted a conditional sentence in a manslaughter case. I have also

considered the other cases relied on by Mr. Piché in his Book of Authorities filed March 2, being,

in addition to cases I have already referred to, R. v. Delaittre, 1998 CanLII 12361, 168 Sask. R. 195

(C.A.) and R. v. Shore, 2002 SKPC 42.

[67] In my earlier decision respecting the Sentencing Circle, I had referred to a number of cases

that would suggest that a conditional sentence order, or at least a sentence of less than two years, was

a possible sentence at the time those cases were decided, all prior to the amendment to s. 742.1: R.

v. Rope, [1995] 2 C.N.L.R. 209, 136 Sask. R. 171, 1995 CanLII 4084 (Q.B.); R. v. John, 2004

SKCA 13; R. v. Lam, 2004 ABQB 78; R. v. Millar (1990), 11 W.C.B. (2d) 370 (Ont. Ct. Gen. Div.);

R. v. Pashe, 1995 CanLII 6256 (Man. C.A.), 100 Man. R. (2d) 61; R. v. Patten, 2002 CanLII 22206

(Nfld. S.C.T.D.), 218 Nfld. & P.E.I.R. 303; R. v. Matthews, 1998 CanLII 5252 (Ont. C.A.).

[68] A review of these last referred to cases demonstrates the point raised earlier, that being that

it can be a futile exercise to try to define the range. Many of the cases deal with cases of criminal

negligence which involve the operation of a motor vehicle, with or without the added factor of

alcohol. Some deal with individuals with no prior criminal record, and some deal with “shaken

baby” cases. As was pointed out in Cappo, supra, at paragraph 13, “each case depends on the

circumstances of the specific offence and the circumstances of the specific offender”.

[69] I have determined that a proper balancing of the principles of sentencing requires a term of

incarceration in a federal penitentiary for a term of three years. In mitigation, whereas I acknowledge

that Mr. Pauchay no doubt feels remorse and grief for the devastating consequences of his actions,

-23-

and that he has entered an early guilty plea, the fact remains that two defenceless young victims lost

their lives as a direct consequence of his reckless behaviour. He has a lengthy criminal record, and

he has done little, over the years, to deal with the alcohol abuse that is so much a part of his

offending behaviour. The principle of denunciation, and the need to foster respect for the judicial

system, mandates a significant response. Although I appreciate the input of the community of

Yellow Quill, as expressed through the process of the Sentencing Circle, I cannot agree with the

recommendations of that circle. Nor do I have the jurisdiction, even were I so inclined, to construct

a sentence that would place Mr. Pauchay under community control in the manner suggested; the

maximum duration of a probation order is three years. It will be up to Mr. Pauchay to decide, upon

his release from prison, whether he wants to access the community support that is available to him

at Yellow Quill First Nation.

[70] As well, there will be a mandatory prohibition order under s.109 (1)(a), and a DNA order. The

surcharge is waived for reasons of financial hardship. I will deal with any issues respecting credit for

remand time after dealing with and depending on the pleas on the other charges Mr. Pauchay faces,

in order to ensure that I am able to deal with all matters in the most expeditious fashion.

_____________________________________B. Morgan, J