R. v. Taniskishayinew, 2017 BCSC 1944

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Taniskishayinew, 2017 BCSC 1944 Date: 20171027 Docket: 26952-3 Registry: Vancouver Regina v. Sadie Suade Taniskishayinew Before: The Honourable Madam Justice S. Griffin Oral Reasons for Judgment Counsel for the Crown: Elliot Poll Anthony Toljanich Counsel for the Defence: Del Sokol Place and Dates of Trial: Vancouver, B.C. September 18-22, 26, 27, October 2 and 4, 2017 Place and Date of Judgment: Vancouver, B.C.

October 27 2017 Introduction [ 1 ] The accused is charged with committing second degree murder of Robert Boucher on November 6, 2015. [ 2 ] On the day he died, Mr. Boucher was discovered in the early morning hours lying on the ground in the 1000 block of Station Street near Vancouver’s Downtown Eastside. He was discovered by a tenant of a housing complex at 1005 Station Street. The tenant told the night attendant of the housing complex who called 911. First responders arrived and were unable to resuscitate the man, who turned out to be Mr.

Boucher, and he was taken to hospital and was later pronounced dead. [ 3 ] The police investigators secured security camera footage from 1005 Station Street and from that footage the accused became a suspect. [ 4 ] The accused was a tenant of 1005 Station Street. She was seen coming and going from her suite with Mr. Boucher, and later returning alone, just before his body was discovered. [ 5 ] A forensic pathologist, Dr. Orde, testified at trial. He confirmed that Mr.

Boucher died from a stab wound to his left side. [ 6 ] The security camera footage, the knife seized which appeared to be part of a set of knives in the accused’s kitchen, DNA testing which confirmed Mr. Boucher’s blood on the knife and the accused’s clothing and shoes, all provide compelling evidence that the accused was the person who stabbed Mr. Boucher just minutes before he was found on the street and then subsequently died on the morning of November 6, 2015. The defence has not seriously contested this. [ 7 ] However, no one witnessed the stabbing.

The key question is: has the Crown proven beyond a reasonable doubt that the accused had the necessary intent for second degree murder? Facts [ 8 ] I turn now to the more detailed evidence of the circumstances surrounding the killing of Mr. Boucher. The Crown is relying on circumstantial evidence to prove its case. [ 9 ] The security camera footage showed the accused and Mr. Boucher together with two other men and a woman coming into the apartment building at 1005 Station Street around 2 in the morning. One of the other men was Keenan Isaac, a friend of the accused.

The group appeared to be jovial and having a good time. The accused threw her arm around the female in apparent affection as they were approaching the apartment building.

[ 10 ] Photographs obtained from a cell phone found in the suite suggest that the group was enjoying themselves and taking photographs of themselves. In some of the photographs one of the males is seen holding a large bottle and appears to be taking drinks from it at around 2:23 a.m. In another photograph taken around 2:24 a.m., the accused is seen holding a similar large bottle and posing for photographs, smiling and standing with the other female who was also smiling. [ 11 ] At approximately 3 a.m. Mr.

Boucher was recorded on the security camera video leaving the accused’s suite, standing at the doorway for a few minutes. He appeared to be possibly waving his arms in the direction of inside the suite, and then walking down the hallway into the elevator. He was walking differently than before, with somewhat of a rhythmic rocking motion, perhaps consistent with being impaired. [ 12 ] The accused left her apartment a few seconds later and joined Mr. Boucher.

He was inside the elevator and appears to have been gesticulating with his arms at her while she was outside the elevator; he then moved into the elevator and she joined him in it. She appeared to hold one arm behind her back for a time. [ 13 ] No one else was with the accused and Mr. Boucher in the elevator. [ 14 ] In the elevator, the accused appeared to stand close to the elevator wall with her back to the wall, still holding one arm behind her back. Mr. Boucher stood more in the centre of the elevator.

He was waving his hands in the air and pointing, and his demeanour is capable of being interpreted as angry or upset. The accused’s demeanour was more difficult to discern but she was not seen responding in kind and was more placid. [ 15 ] The accused and Mr. Boucher took the elevator down to the lobby and left the building. The accused walked a little behind Mr. Boucher as they left the elevator and building, with both of her arms free.

The security cameras captured them walking down the street but then they walked out of view. [ 16 ] After only being out of camera view for approximately one minute, the accused was again seen in the camera view, walking back to her building alone. In the recording, the accused appears to be walking calmly, returning to her suite. [ 17 ] The circumstantial evidence is persuasive in establishing that the accused stabbed Mr.

Boucher sometime in the approximate one minute gap between when the accused walked away from the building and went out of camera range, and returned to walk back towards the building in camera range. [ 18 ] Mr. Boucher was found lying face down on the ground on Station Street approximately 20 minutes after the accused was spotted returning into camera range. He was located behind a pub which was located just down the street from 1005 Station Street. First responders were called to the scene. [ 19 ] Cst. Donaldson arrived at the scene first, around 3:26 a.m., and saw Mr. Boucher lying face down.

Two other police officers arrived almost immediately as did an ambulance and paramedics. [ 20 ] Shortly after police arrived at the scene, within approximately 3 to 5 minutes, around 3:29 a.m., security camera video showed the accused returning to the building lobby and looking outside, then walking down the street a short distance towards the direction of the police incident. She returned a few moments later and struck up a conversation with the night attendant at 1005 Station Street. He could smell alcohol on her breath and thought her speech was somewhat slurred.

He considered her a little bit drunk. [ 21 ] The accused asked the night attendant if she could look at the security video, and told him that someone stole her cell phone. The night attendant told her he could not let her look at the security footage. [ 22 ] The security camera video captured the accused returning to her apartment at around 3:40 a.m. [ 23 ] Around 4:21 a.m. two people were recorded leaving the accused’s apartment. They walked towards a stair exit.

Security cameras recorded the same two people leaving the building through the back door. [ 24 ] Police later obtained video from security cameras located in banks nearby, and these cameras recorded the accused and Mr. Isaac walking down the street. By the clothes they were wearing it appears that they were the two people recorded leaving the accused’s apartment and building by way of a staircase and back exit. [ 25 ] The accused’s footwear changed from the time she was seen with Mr. Boucher to the time she was seen leaving the building after his death. When originally seen that evening with Mr.

Boucher, the accused was wearing white running shoes with pink soles. Later, when she left the building around 4:21 a.m., she was seen wearing black slip-on sandals. [ 26 ] Both Mr. Isaac and the accused were arrested, just before 6 a.m. that morning. [ 27 ] After his arrest, Mr. Isaac gave a statement. That statement led police to a garbage bin in the 700 block of Main Street. A knife was found in this garbage bin. The knife was wrapped in what looked like a small blanket or baby blanket and was found in a garbage bag that was light green in colour. [ 28 ] A backpack that was being carried by Mr.

Isaac at the time of his and the accused’s arrest was found to have another green garbage bag in it, of a similar appearance to the one found with the knife in it. Inside the green garbage bag in the backpack was a pair of white running shoes with pink soles. [ 29 ] The appearance of the running shoes, combined with DNA testing, establishes that these were the same running shoes that the accused was wearing at the time she was seen in the video in the presence of Mr. Boucher. Mr. Boucher’s blood was on the shoes, as was the accused’s DNA.

[30] DNA testing has established that Mr. Boucher’s blood was on the knife as well. [31] The police executed a search warrant and searched the accused’s apartment. There, they found knives that appeared to be fromthe same collection as the knife found in the garbage with Mr. Boucher’s blood on it. This collection of knives was a single brand ofcoloured knives, each a different size and colour, where the blade and handle were matching colours and there were also matchingcoloured knife sheathes.

Moreover, the police found a matching sheath in the kitchen for the knife that was found in the garbage bin. [32] In the accused’s apartment, the police discovered additional light green garbage bags that seemed to be of the same type asthose in which the knife and running shoes were found. [33] At the police station the accused’s clothes were seized. Later tests revealed blood splatter on her clothes. DNA testingestablished that this was Mr. Boucher’s blood.

Most revealing in this regard was a camisole the accused was wearing that had a pattern ofblood on it that could be consistent with her storing the bloody knife under her top but next to her camisole. Legal Test for Intention [34] I turn to the legal test for second degree murder. [35] I am persuaded beyond a reasonable doubt that the accused stabbed Mr. Boucher. This constitutes an unlawful act. I am furthersatisfied that this unlawful act caused his death. Therefore, I find that the accused has committed culpable homicide.

Section 234 of theCriminal Code states that culpable homicide that is not murder or infanticide is manslaughter. [36] The question now turns to the accused’s intent at the time of the stabbing.

Section 229(

a) of the Criminal Code provides asfollows: 229 Culpable homicide is murder (

a) where the person who causes the death of a human being i. means to cause his death, or ii. means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues ornot…. [37] The Crown relies on s. 229(a)(ii) of the Criminal Code. The Crown must therefore prove beyond a reasonable doubt that theaccused meant to cause Mr. Boucher bodily harm that she knew was likely to kill him and was reckless whether he died or not. [38] To prove the necessary intent to establish murder the Crown must establish that the accused had subjective foresight that deathwould ensue: R. v.

Vaillancourt, (SCC), [1987] 2 S.C.R. 636; R. v. Martineau, (SCC), [1990] 2 S.C.R.633. [39] The legal test for the necessary intent was summarized in R. v. Moo, 2009 ONCA 645 at paras. 38 and 45-48.

Watt J.A., writingfor the Ontario Court of Appeal, held: [38] … In the fault element of murder in s. 229(a)(ii), the accused must foresee a likelihood of death flowing from the bodily harmshe or he is intentionally causing the victim – foresight of a mere danger of death is not sufficient: [citations omitted]. [Italic emphasis in original.] … [45] The fault element in the definition of murder in s. 229(a)(ii) consists of three components: • Intention (to cause bodily harm); • Knowledge (that the bodily harm will probably be fatal); • Recklessness (whether the victim dies or lives); Subjective foresight of death is a constitutional requirement for the crime of murder: R. v.

Martineau, (SCC), [1990] 2S.C.R. 633, at p. 646. [46] The most prominent among the three components of the fault element in s. 229(a)(ii) is the intention to cause bodily harm ofsuch a grave and serious nature that the person inflicting the harm, the accused, knows that the harm is likely to kill the victim. Thiscombination of intention and subjective foresight of the likelihood of death renders the recklessness component in s. 229(a)(ii) almost anafterthought: R. v.

Nygaard, (SCC), [1989] 2 S.C.R. 1074, at pp. 1087-1088. [47] The recklessness component of the fault element in s. 229(a)(ii) does not exist in a vacuum as the only mental or fault element,rather works together with the intentional infliction of horrible bodily harm: Nygaard, at p. 1088. The variation in the degree ofculpability as between the fault elements of ss. 229(a)(

i) and 229(a)(ii) is too slight to warrant distinction: Nygaard, at pp. 1088-1089. [48] The requirement in s. 229(a)(ii) that the fatal assault be carried out in a reckless way, in other words by heedlessly proceedingwith the deadly assault well-knowing the obvious risks, adds nothing to the vital element of the intent to cause bodily harm that the killer

knows is likely to cause death and yet persists in the assault: Nygaard, at p. 1088. Anyone who causes bodily harm that she or he knowsis likely to cause death must, in those circumstances, have a deliberate disregard for the fatal consequences that she or he knows arelikely to happen: R. v. Cooper, (SCC), [1993] 1 S.C.R. 146, at pp. 154-155. In other words, such a person must,perforce, be reckless whether the victim lives or dies: Cooper, at p. 155. [40] As explained by the Court of Appeal in R. v.

Brar, 2009 BCCA 585, it is not enough for the accused to have known that thebodily injury “could” cause death: that is too low a standard of culpability to prove murder. The necessary intent in s. 229(a)(ii) is thatthe accused “knows” that the injury is “likely” to cause death. [41] The intention to cause bodily harm requires the subjective intent to cause bodily harm and the subjective knowledge that thebodily harm is of a magnitude that is likely to cause death: R. v. Cooper, (SCC), [1993] 1 S.C.R. 146 at 155-156;R. v.

Shyback, 2017 ABQB 332 at para. 60. [42] The Crown relies on the common sense inference to prove intention from conduct. The inference is that a sane and sober personintends the natural and probable consequences of his voluntary acts: R. v. Seymour, (SCC), [1996] 2 S.C.R. 252at paras. 19, 21 and 23; R. v. Luciano, 2011 ONCA 89 at para. 79; and R. v. Walle, 2012 SCC 41 at paras. 55-68. [43] As the defence points out, the common sense inference is merely a permissible inference for the trier of fact to draw, not anautomatic presumption: Walle at para. 63.

Intoxication can affect a person’s ability to measure and foresee the likely consequences of hisor her actions and so has to be taken into account when considering whether or not to apply the common sense inference. All of thecircumstances, including but not limited to intoxication or a mental condition, have to be considered.

If the trier of fact has reasonabledoubt about the accused’s intention, the common sense inference must not be applied: Seymour at para. 23. [44] In a case involving a fatal stabbing, the Court of Appeal held that where there is some evidence of intoxication, this needs to betaken into account in determining whether the accused had knowledge of the likelihood that the stabbing would cause the victim’s death:R. v.

Dickson, 2006 BCCA 490 at paras. 53, 58-60. [45] The Crown concedes that the fact that the accused was involved in trying to get rid of evidence of her involvement in the killingis irrelevant on the question of whether she had the necessary intention for murder as opposed to manslaughter: R. v. Zouaoui, 2014BCCA 316. Analysis [46] When I analyze the evidence, I note that there is no evidence of what caused the accused to leave her apartment, shortly afterMr. Boucher, accompany him in the elevator, walk out of the building and then stab him on the street off-camera.

No one else who wasin the apartment that night was called as a witness so we do not know if there was some kind of dispute within the apartment. [47] There is no definitive evidence as to what degree of intoxication, if any, the accused was suffering from. There is enoughevidence to suggest she had consumed some alcohol in close proximity to the stabbing, but how much was consumed is unknown. [48] Mr.

Boucher was extremely intoxicated at the time according to blood alcohol readings obtained after his death. [49] It is likely that the accused was carrying the knife hidden in her clothes when she left the building with Mr. Boucher and cameback alone. Her demeanour on the security recordings seems calm but that is a superficial impression based on looks alone and it isimpossible to know whether she was scared or angry. It is possible to infer that she intended to bring the knife with her when she wentoutside with Mr.

Boucher; however, it is unknown for what intended purpose. [50] The Crown argues that the nature of the stabbing lends itself to the probable inference that the accused intended to harmMr. Boucher in a way that she knew was likely to cause death. [51] Dr. Orde’s evidence was that the stab wound was deep, severed a rib and perforated the aorta, causing massive internalbleeding. [52] The Crown submits that in order to inflict such a wound, the stabbing was made with “considerable force” and to a part of thebody that was integral to life, narrowly missing the heart. [53] The knife was a big, sharp knife.

The length of the knife blade was approximately 17.5 to 18 cm; the widest part of the blade,near the handle, was 4.5 cm. It was a type of knife commonly known as a butcher knife. [54] The Crown further submits that the depth of the wound was consistent with the entire knife blade being stuck in the victim. [55] This is what the Crown stated in its written submissions: The accused followed the heavily intoxicated victim out of her suite while hiding a knife. She chose to bring a large knife with her whileshe carried on her conversation with the victim.

She lured him outside the range of the security cameras and stabbed him almostimmediately – only a matter of seconds after the parties exited camera range. She stabbed him with considerable force, plunging theknife the full distance into Mr. Boucher’s torso, on the left side of his chest near his heart. She then walked back to her apartment,leaving him on the street to die.

Thus, it appears that the accused’s intention was to attack the victim by surprise, quickly and violently, with no consideration for theconsequences, and with the implied knowledge that she was injuring an area of the human body that contains vital organs. [56] There are several problems with the Crown’s submission, all centering on the lack of evidence to support the inferences the

Crown seeks to draw as being the only possible inferences. [ 57 ] First, the Crown infers from the circumstantial evidence that the accused chose the largest knife she had, rather than a small knife. I accept that the size of the knife does raise concerns. However, it is possible that the accused did not think about the size of the knife but just grabbed a knife that was close at hand for a reason that is not known. Alternatively, she could have picked a knife that she thought would not fall down her pants as she tucked it in her clothes.

There was evidence she may have been drinking alcohol, and so her judgment may have been impaired in deciding to take a larger knife with her. That does not mean that she took the knife planning to kill the victim. One reason might have been to protect herself or just to make a threat. She may have wanted to escort the accused away from her residence in case he was belligerent and attacked her. [ 58 ] Second, the Crown infers from the circumstantial evidence that the accused chose to “lure” the victim outside of the range of security cameras.

However, there was no evidence that the accused was the one who initiated the victim leaving and walking where he walked after he left the building. There was no evidence that the accused knew the range of security cameras. [ 59 ] Third, the Crown argues that the accused stabbed the victim with considerable force. However, there was no evidence as to the force of the accused’s stabbing as no one saw what happened. It is possible that the victim made sudden movements towards the accused that brought force against the knife as she moved it towards him.

The knife was extremely sharp and it is unknown exactly how it ended up in the victim’s body: was it thrust at him unexpectedly; was it waved at him and she miscalculated in her movements towards the accused or miscalculated his movements? What each person’s movements were in the altercation is unknown. [ 60 ] Fourth, the Crown argues that the accused left the victim on the street to die, and intent can be inferred from such an action. It is factually true that the accused left Mr.

Boucher on the street and returned to 1005 Station Street but it is unknown whether she thought she had fatally wounded him and does not prove she intended to do so. [ 61 ] Fifth, the Crown argues that the accused knew that where she stabbed the victim was in an area of the body that contains vital organs. Again, this is speculative. The accused might not have been planning the stabbing or planning where to stab. It is possible the victim made a sudden lunge at her outside of camera range so that she used the knife to wave at him in the hope of causing him to back off.

If she did plan to cut the victim, the accused might not have been very well educated and might have thought she was just going to cut him to teach him a lesson. She may have been surprised at how far the knife ended up going into his body and how much damage it caused. The accused’s level of understanding regarding the risk of death arising from using such a knife to cut someone is not something that can be assumed. There is no evidence about her education or experiences. [ 62 ] In my view the Crown has gone too far in the inferences it seeks to draw from limited evidence.

As the defence ably pointed out in submissions, one cannot infer natural consequences from the accused’s actions if we do not know what those actions were. We do not know what happened in the altercation between the accused and the victim. [ 63 ] The natural consequence of using the knife against the body of the victim was that it would cut the victim.

It was not necessarily known to the accused that all of the circumstances would come together to result in such a deep cut and in such a location as to kill the victim. [ 64 ] Pop culture unfortunately is filled with images of people being violently stabbed and yet surviving.

If a person grows up immersed in violent pop culture, or around actual violence, has a limited understanding of anatomy and limited education or experience, and that person’s inhibitions and judgment are impaired by alcohol, it is difficult to conclude that such a person would know that a single knife wound would likely kill a person. [ 65 ] The Crown submits that there is no air of reality to a defence of self defence or provocation because we do not have any eye witness account of the actual altercation that resulted in the stabbing.

This is a fair point, but the same flaw can be said of the prosecution’s theory of intent: we simply do not know what happened in the heat of the moment. [ 66 ] The Crown relies on three authorities that it suggests have somewhat similar facts where limited stab wounds caused death and the necessary intent for murder was found to have been proven: R. v. Smith , 2014 NSSC 351 , aff’d 2016 NSCA 42 ; R. v. Guiboche , [1998] M.J. No. 8 (Man. Q.B.) , aff’d in [1999] M.J. No. 265 (Man. C.A.) ; and R. v.

Zouaoui , 2014 BCCA 316 . [ 67 ] However, each of these cases is distinguishable because there was some evidence of exactly what happened when the stabbing occurred: either eyewitnesses to the stabbing or the testimony of the accused person.

That evidence allowed the trial judge in each case to make conclusions as to how the stabbing occurred and draw inferences as to the accused’s state of mind from those facts. [ 68 ] In contrast to the authorities relied upon by the Crown, there is not sufficient evidence in this case which would allow me to draw the inferences the Crown seeks to draw as to how the stabbing occurred and as to what therefore must have been in the accused’s mind. [ 69 ] For these reasons I have a reasonable doubt as to the accused’s intention and the Crown has failed to prove that she had the intent necessary for second degree murder.

Manslaughter [ 70 ] As stated earlier in this judgment, I am satisfied beyond a reasonable doubt that the accused stabbed Mr. Boucher and caused his death. This amounts to culpable homicide. [ 71 ] Pursuant to s. 234 of the Criminal Code , culpable homicide that is not murder is manslaughter. It is not necessary to prove a specific intent to cause death.

Conclusion [ 72 ] In conclusion, I find the accused not guilty of second degree murder, but guilty of manslaughter in the death of Mr. Boucher on November 6, 2015. “The Honourable Madam Justice S. Griffin”