R. v. Muckpaloo, 2021 NUCJ 32

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Muckpaloo, 2021 NUCJ 32 Date: 20210401 Docket: 01-18-07 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Andrew Muckpaloo ________________________________________________________________________ Before: Madam Justice Cooper Counsel (Crown): G. Lyndon M. Tooke Counsel (Accused): I. Neuman N. Sittmann Location Heard: Iqaluit, Nunavut Date Heard: February 11-26, 2021 Matters: Trial decision regarding s. 235(1) and s. 266 of the Criminal Code of Canada, RSC 1985, c C-46 . REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Anonymized Judgment Disclaimer : This judgment has been anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties. Letters have been assigned at random. I. INTRODUCTION . 4 II. EVIDENCE . 4 A. F.G. 5 B. S.W. 6 C. People at C.M.’s House . 7 D. Accused . 8 E. Pathologist 10 III. ANALYSIS . 11 A. Assessing The Reliability of Witnesses . 11 B. Assault Charge . 13 C. Murder Charge . 13 D. Is There an Air of Reality to Self-Defence: 14 E. Self-Defence Analysis . 15 i. Was force being used or threatened on the accused? . 15 ii.

Was the act committed for the purpose of defending or protecting himself from that use or threat of force? . 16 iii. Was the act committed in reasonable circumstances? . 18 IV. CONCLUSION . 21 I. INTRODUCTION [ 1 ] Andrew Muckpaloo is charged with second degree murder in relation to the death of Silas Barnabas. He is also charged with an assault on S.W. arising from the same set of circumstances. [ 2 ] The accused pled not guilty to the charge of murder. [ 3 ] He did not offer any plea to the charge of assault. Pursuant to s. 606(2) of the Criminal Code, R.S., c. C-34, s. 1, a not guilty plea

was entered. II. EVIDENCE [ 4 ] The evidence from the various witnesses as to how things unfolded on the evening of March 26, 2018, is sometimes confusing and inconsistent. [ 5 ] F.G. and C.M. have houses that are very close to each other. Both had people in their homes that evening, socializing. At various times in the evening there were people moving between the two homes. [ 6 ] The gathering at the home of F.G. was small.

Andrew Muckpaloo (the accused) was there and had brought with him the necessary ingredients and equipment to make moonshine, which he proceeded to do. [ 7 ] The accused’s girlfriend, S.W., was also at the house. F.G., the accused, and S.W. were all drinking. There is some evidence suggesting that R.N. was also there at some point. [ 8 ] The group of people gathered at C.M.’s house included Silas Barnabas and I.C..

Some alcohol and drugs were being consumed at this gathering. [ 9 ] At some point there was a disagreement or altercation between the accused and S.W. that resulted in S.W. leaving the house. [ 10 ] Silas then came to the house and there is evidence to suggest that he was angry with the accused because of what had occurred between him and S.W.. There was a confrontation and physical fight between the accused and Silas. [ 11 ] At some point during the fight, Silas received a single stab wound in the back. The stabbing punctured his lung.

He died from blood loss. [ 12 ] Beyond this general overview it is difficult to find points of agreement amongst the various witnesses. [ 13 ] A brief overview of the evidence of each witness will assist. A. F.G. [ 14 ] F.G. testified that Andrew came over with home-brew and started the process of making moonshine. F.G., the accused, and S.W. started to drink the moonshine. S.W. was packing her young son in an amauti . At some point S.W. wanted more moonshine but the accused did not want her to drink any more.

F.G. testified that S.W. became upset, picked up the home-brew, and dropped it on the floor, upsetting the accused. [ 15 ] The accused tried to get their son from S.W. but she ran out the door and said that she was going to get Silas. F.G. testified that Silas was upset and that Silas and the accused started fighting. They were wrestling on the floor. [ 16 ] F.G. tried to stop them but could not. At one point the fighting stopped and Silas went to sit on the arm of the couch while the accused went to the kitchen area. It is a small house and the kitchen, dining, and living area are open to each other.

[ 17 ] F.G. said that S.W. was in the porch area and she could see what was happening. F.G. told her to call the police. [ 18 ] Silas and the accused started fighting again. F.G. tried to separate them and got bit on the forearm by the accused. He did not remember having been bit on the arm by the accused until the trial, at which time he had a “flashback”. When the second fight ended Silas went back to sit on the armrest of the couch and the accused went back to the kitchen. [ 19 ] There was blood on the floor where they had been fighting.

F.G. thought it was from bloody noses, although neither Silas nor the accused appeared to have a bloody nose. [ 20 ] F.G. did not see any blood on the accused while Silas had a bit of blood on the bottom of his jacket. [ 21 ] After the second fight everyone just waited for the police to come. When it became apparent the police were not coming soon, F.G. told everyone to leave. [ 22 ] He said that Silas left first, then the accused. After everyone left he locked the door and went to sleep. [ 23 ] F.G. did not recall hearing Silas say “I can kill you, I can kill you’.

He did not agree that the accused asked him for help. He agreed that Silas was upset about S.W. having been hurt. B. S.W. [ 24 ] S.W. is the girlfriend of the accused. They have two children together. [ 25 ] She testified that she went to F.G.’s house with the accused. She had their young son in her amauti . She, F.G., and the accused were drinking moonshine. She recalls drinking 2 cups. She wanted more to drink. [ 26 ] S.W. testified that she then found herself outside the house but does not recall how she got there. She wanted to drink more and tried to get back into the house.

The door was locked and she could not get back in. [ 27 ] S.W. was blacking out. She has memories of being beaten up by the accused. She recalls being pushed down the stairs. She said that she fell to the ground and got up and went back towards the accused again. [ 28 ] S.W. remembers grabbing the home-brew pot and pouring it out. She tried to give the pot to R.N. and told her to hide it. She remembers that I.C. took her son from her amauti during the altercation with the accused. [ 29 ] S.W. testified that she then went to C.M.’s house.

On her way there she saw Silas heading to F.G.’s house but she did not say anything to him. C.M., W.J., and I.C. were at C.M.’s house. [ 30 ] S.W. went back to F.G.’s house to get the accused. No one opened the door, so she knocked on the door and said, “if you don’t let me in I’m going to break the window”. [ 31 ] F.G. opened the window. S.W. said she saw F.G. and Silas.

[ 32 ] Silas was sitting on a chair, and he seemed normal. She did not see the accused. [ 33 ] She again went back to C.M.’s house. She was there for a while before the accused showed up. She described him as looking kind of weird. The two of them were outside having a cigarette. [ 34 ] It was at this point that she said there was a discussion about the stabbing. S.W. testified that the accused said that he stabbed Silas. In her cross-examination she testified that the accused said that Silas was beating him up.

Although she could not recall it at trial, it is agreed that at the Preliminary Hearing, she testified that the accused said that he thought Silas was going to kill him. She testified to the accused having given her the knife that was used to stab Silas. She testified that she put the knife in her luggage. [ 35 ] At another point in her evidence S.W. talks about having gone back to F.G.’s house, going in, and seeing Silas on the floor. He was asking for help. The accused was with her at F.G.’s house and that is when she obtained the knife.

When she left she saw people coming from C.M.’s house and she told them to take Silas to the Health Centre. [ 36 ] S.W. fell asleep at C.M.’s house and the accused left. Later that day she went to her sister’s home. She told her sister about the knife. Her sister said she was going to call the police. [ 37 ] S.W. was not welcome at her sister’s house so she went to House #299, which is the house of the parents of the accused and is somewhat abandoned. The accused was also at #299 and was arrested there sometime later. C.

People at C.M.’s House [ 38 ] The court also heard from some of the people who were at C.M.’s house that evening. They were also drinking and smoking drugs, but they generally presented as being less impaired. [ 39 ] It came to their attention that there was an altercation between the accused and S.W. and that S.W. might need help. A number of them ran down to F.G.’s house where they saw the accused and S.W. involved in an altercation. One witness described the accused as being on top of S.W..

One of them took the baby from her amauti and they returned to C.M.’s house. [ 40 ] Later, they heard that Silas had been stabbed and needed help. One of the witnesses said they knew this because the accused and S.W. had come to the house and told them. They rushed down to F.G.’s house and found Silas on the floor, bleeding, and asking for help. They got him onto a snowmobile and took him to the Health Centre. [ 41 ] This was around the same that that F.G. went to a neighbour’s to call the police. His neighbour testified that F.G. told her that there had been a stabbing. He was quite drunk.

In his own evidence F.G. did not recollect having gone to the neighbour’s house. D. Accused [ 42 ] The accused testified. He testified to bringing home-brew and making moonshine. He testified to S.W. being there, leaving for a short time and coming back with R.N.. He said that they were all drinking and hot knifing. [ 43 ] He said that he and S.W. got into an altercation when she wanted to drink more and he refused her. He described it as her beating him up. He said he headbutted her and she tried to leave, at which point he held on to her. He was concerned about her calling the police.

He said that she got away from him and made her way outside, where he grabbed her again. She was pulling away from him and when he let go she fell down the stairs.

[ 44 ] The accused said he then closed the door but she started knocking. He opened the door and S.W. took the pot with the home-brew in it and left with it. He went after her and ended up on top of her. She was yelling for help and he put her hand in his mouth. [ 45 ] He testified that four guys came from C.M.’s house, including Silas. He told S.W. to tell Silas not to do anything to him, which she did. One of the men took the baby and they left, except for Silas, who went back into F.G.’s with them. [ 46 ] Inside the house people continued drinking and smoking weed.

Silas had brought some weed which they shared. Everyone was drinking some of the moonshine. [ 47 ] Silas wanted more to drink and the accused said no because he did not have much more left. The accused testified that this is when things turned bad. Silas got angry at being refused alcohol. Silas punched the accused. He was saying “I just came from BCC, I can kill”. The accused testified that when Silas was saying this he was looking at the accused and he felt that the statements were threats directed at him. [ 48 ] At one point Silas put F.G.’s head onto the table, which I understood to be

an act of aggression by Silas towards F.G.. [ 49 ] The accused testified that he was sitting on the couch. The accused poured another drink for Silas from a flask that he had in his pocket. Silas drank that while the accused retrieved a folding pocketknife from his front pocket and opened it. The accused stood up. He said that at that point he was afraid of Silas and he had gotten the knife so that he could defend himself. [ 50 ] The accused testified that Silas “jumped him”. This was described as Silas grabbing him by the shoulder. The accused grabbed Silas. The accused was still holding the knife.

The accused said that Silas twisted him and put him to the floor. The accused was on his back and Silas was on top of him. Silas was punching him when he was on the floor. The accused did not punch back; he did not get any punches in. [ 51 ] The accused testified that Silas would not stop. The accused pulled himself up slightly and grabbed Silas into a “bear hug”. The fight lasted a couple of seconds after that, at which point F.G. pulled Silas off the accused. The accused slid the knife under the couch. He said he did this because he was afraid someone might get it.

The accused fled the house and went to C.M.’s house. [ 52 ] At C.M.’s house the accused washed up and told S.W. that Silas might take the home-brew. He said that S.W. went down to F.G.’s and he followed her and it was at that time that they could see something was wrong with Silas and the accused realized he had stabbed him. The accused got the home-brew and S.W. told him to put it in her amauti , which he did. He said that he told S.W. that the knife was under the couch and that is when it came into her possession. [ 53 ] They returned to C.M.’s house. E.

Pathologist [ 54 ] The court heard from the pathologist who performed the autopsy on Silas. He observed the following injuries: a. small abrasion on the lower lip which could be from resuscitation attempts; b. small abrasion on lower left back c. two abrasions on back of right hand (knuckles) which could have been from punching d. one superficial cut on right lower forearm e. one superficial cut on left middle finger of left hand f. incise wound on right side of back, with a downward direction and a depth of 11 centimetres. This was the fatal injury.

[ 55 ] The wound did not involve bone so would not have taken much force to inflict. [ 56 ] The pathologist also gave evidence regarding the relative positions of the assailant and the deceased at the time the stab wound was inflicted. Essentially, his evidence was that if they were face to face it would not be possible for a person holding a knife in the right hand to reach around and stab someone else on the right side of the back. I find this evidence of little use. [ 57 ] First, the pathologist did not know or utilize the body proportions of the individuals involved to come to his opinion.

It would seem that this would be important information as a person’s actual reach is dependent upon their proportions, such as the length of their arms. [ 58 ] Secondly, the opinion appears to be relevant only when two people are directly face to face. Any modification to that position renders the opinion inapplicable. The incident which led to Silas’ death was dynamic and constantly moving. It is unlikely that there was any a moment when Silas and the accused were directly face to face. III. ANALYSIS A.

Assessing The Reliability of Witnesses [ 59 ] A major issue in this case is the reliability of the key witnesses. The evidence of each of the three key witnesses; F.G., S.W., and the accused, is affected by alcohol. There are major inconsistencies in the evidence as between the witnesses. [ 60 ] F.G. testified that there were two “fights” between the accused and Silas and that S.W. was positioned in the entry way to the house such that she would have seen the fights. S.W. did not testify to having seen any fights between the accused and Silas.

According to her evidence, she was not in the house at the time. [ 61 ] The accused testified to there being only one fight on the floor between he and Silas. The accused placed himself on the couch and Silas in the kitchen area prior to the fight, which contrasts with the evidence of F.G. who placed Silas on the couch and the accused in the kitchen area during the interval between the fights. [ 62 ] S.W. testified to having knocked on the window to F.G.’s house after being denied entry and F.G. having opened the window.

At that time she observed Silas sitting on the couch and he appeared normal. [ 63 ] There are inconsistencies between the evidence of S.W. and the accused as to how S.W. came into possession of the knife and what was said to her by the accused at the time. [ 64 ] Within the evidence of each witness, and particularly the evidence of F.G. and S.W., there were inconsistencies or major gaps in the evidence. [ 65 ] With respect to F.G.’s evidence, he did not testify at all to having gone to a neighbour’s house to call the police, yet we know from the evidence of M.K. that he knocked on her door at about 6:30 a.m. and asked to use the phone because someone had been stabbed.

Most surprisingly, F.G. seems to have no recollection of Silas lying on the floor of his house, seriously injured by the knife wound. F.G. testified that everyone was waiting for the police to arrive and when it became apparent they were not coming soon, he told everyone to leave. He testified that Silas left the house first, followed by the accused, and that he locked the door after them. Clearly this did not occur. The evidence of the various witnesses who took Silas to the Health Centre is that Silas was found on the floor of F.G.’s house, bleeding and asking for help.

[ 66 ] The evidence of S.W. also suffers from significant gaps. Her ability to recall the events of the evening was impaired by alcohol and a medical condition. She readily acknowledged to the RCMP and to the court her poor memory.

S.W. did not testify to having called the RCMP that night to report the altercation with the accused, but we know that she did because we heard the recording of the phone call. [ 67 ] The accused did not testify to memory loss, nor are there significant inconsistencies in his evidence and other evidence which can be independently corroborated, I must consider the fact that he was drinking and doing drugs and that it is likely that this affected his evidence. [ 68 ] Where there is a conflict in the evidence amongst the witnesses or in the evidence of a particular witness and where there is independent, incontrovertible evidence on the matter, I reject the evidence of the witness. [ 69 ] I find that I am unable to rely to any great extent upon the evidence of F.G. or S.W..

The gaps in their recollections go far beyond what one expects of witnesses. The gaps are not on insignificant matters; they are in relation to significant matters and as such, colour the reliability of all their evidence. [ 70 ] The evidence of the accused does not suffer from the same major gaps as that of F.G. and S.W.. As between F.G., S.W., and the accused, I prefer the evidence of the accused. [ 71 ] There are some facts which are not in dispute. I accept that there was a fight between Silas and the accused at F.G.’s house. I accept that the accused introduced a knife into the fight.

The evidence clearly supports an inference that the accused stabbed Silas during the fight and I make that finding. The DNA evidence supports a finding that the knife that was turned over to the police by S.W. was the knife used to stab Silas and I make that finding. B. Assault Charge [ 72 ] I will first address the assault charge against S.W.. It is unnecessary to go any further than the evidence of the accused to make a finding of guilt on this charge. Although he testified that S.W. “started beating him up”, she was trying to leave the house when he grabbed her and restrained her.

He did that once inside the house and a second time outside on the stairs. This restraining of her is an assault. The accused admitted to “going after” S.W. and the two of them ending up on the ground and the accused putting her hand inside his mouth. This altercation outside is corroborated by the witnesses who came from C.M.’s house. [ 73 ] I find the accused guilty of an assault on S.W.. C. Murder Charge [ 74 ] I will now consider the charge of murder. [ 75 ]

Section 229 of the Criminal Code states: 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 or not. [ 76 ] On a charge of second degree murder the Crown must prove:

a. that the accused committed an unlawful act; b. that the unlawful act caused the death; and c. that the accused had the necessary intent for murder. [ 77 ] Not every killing of a person is unlawful. [ 78 ] If a person kills another person in self-defence, that is a defence to a charge of murder and the person is entitled to be found not guilty of both murder and of the included offence of manslaughter. [ 79 ] When the defence of self-defence is raised, the court must first consider if there is an “air of reality” to the defence ( R. v.

Cinous 2002, SCC 29 ). [ 80 ] If there is not an air of reality to the defence the trier of fact does not have to consider self-defence. D. Is There an Air of Reality to Self-Defence: [ 81 ] The “air of reality” test is set out by the Supreme Court of Canada in Cinous . It requires that there be evidence upon which a properly instructed jury, acting reasonably, could acquit if it believed the evidence to be true. [ 82 ] Self-defence has three elements to it.

To meet the “air of reality” test there must be some evidence on each of the three elements. [ 83 ] The three elements of self-defence are set out in s. 34 of the Criminal Code : a. the accused believed on reasonable grounds that force or the threat of force was being used against him; b. the accused committed the act for the purpose of defending himself from the use of force; c. the accused’s act was reasonable in the circumstances. [ 84 ] The evidence of a fight between the accused and deceased, along with evidence of injuries to the accused, is evidence of force having been used against the accused. [ 85 ] There is evidence that if believed could lead to a finding that the accused was defending himself.

That evidence is found in statements made by the accused to S.W. following the incident and in his own evidence given at trial. [ 86 ] The reasonableness of the actions of the accused must be determined having regard to the circumstances of that evening, the evidence of the accused, including his knowledge as to prior acts of violence by the deceased, evidence of violent incidents by the deceased not known to the accused, and injuries to the accused. [ 87 ] I am satisfied that the defence of self-defence meets the “air of reality” test and must be considered. E. Self-Defence Analysis

[ 88 ] Once self-defence becomes an issue the trier of fact must consider, the onus is on the Crown to prove that the accused was not acting in self-defence. The burden of proof on the Crown in disproving self-defence is beyond a reasonable doubt. [ 89 ] If the Crown meets its burden in relation to any one of the three requirements for self-defence, then the defence fails. [ 90 ] If the defence of self-defence is not successful, the trier of fact must consider the charge of murder and determine if the Crown has proven murder beyond a reasonable doubt. i.

Was force being used or threatened on the accused? [ 91 ] There is conflicting evidence as to how the fight started. [ 92 ] F.G. said “they went to each other” and they started fighting, more like wrestling; they stopped for a while and separated, Silas in the living room and the accused in the kitchen area. He said the second fight started after the accused left the kitchen area and went towards Silas and they started fighting again, wrestling on the floor. [ 93 ] The evidence from the accused is that it was Silas who punched him.

The accused also described Silas as having been aggressive with F.G. by pushing his head down on the table. In cross-examination this was confirmed by F.G.. [ 94 ] There are a number of reasons why I prefer the evidence of the accused over the evidence of F.G. on the issue of how the fight started. [ 95 ] First, as previously discussed, the very significant gaps in F.G.’s testimony make it difficult to rely on his evidence. [ 96 ] Further, the manner in which the accused described the incident as developing was very similar to the earlier incident between the accused and Silas outside the Co-op store.

In each instance, Silas was seeking intoxicants from the accused. At the Co-op, it was weed, on this occasion it was alcohol. On each occasion he is described as becoming aggressive and violent when he is denied intoxicants. At the Co-op, he is described as “trying to beat up” the accused. That incident ends when the accused gives him weed. In this instance, things are described as being fine until the accused says no to Silas’ request for more alcohol.

The accused testified that after one punch he poured Silas another drink. [ 97 ] While things might have calmed down momentarily while the drink was being consumed, given what had just occurred and the statements being made by Silas, it was reasonable to expect a continuation of the incident. [ 98 ] The injuries to the accused show that the accused was getting a beating.

In comparison, other than the stab wound, Silas had minor abrasions on his hand, which could have been caused by throwing punches. [ 99 ] I find that the Crown has not disproven that the accused had reasonable grounds to believe that force was being used or being threatened against him. ii. Was the act committed for the purpose of defending or protecting himself from that use or threat of force?

[ 100 ] The following evidence supports the proposition that the accused stabbed Silas in self-defence. [ 101 ] The accused testified that when Silas first arrived at F.G.’s house the accused said to S.W. “tell Silas not to do anything to me”. This shows that the accused had a concern about Silas and the potential for violence before he even arrived. [ 102 ] The accused testified that inside the residence Silas was saying “I just came from BCC, I can kill”.

The accused said that when these comments were made Silas was looking at him and the accused perceived the comments to be a threat directed at him. [ 103 ] Silas’ propensity for violence is corroborated by his criminal record, the court transcript from one of his sentencing proceedings, the Police Reporting and Occurrence System reports, and the records from BCC.

It is also corroborated by the viva voce evidence of some of the witnesses, in particular the former by-law officer who testified to having seen Silas lashing out at people on the street, unprovoked, and “punching them out”. [ 104 ] Silas had a reputation for violence and the accused was aware of it. [ 105 ] The accused had reason to believe that Silas was capable of hurting him. This belief was based on his prior encounter with Silas at the Co-op store and his knowledge of Silas’ propensity for violence.

The accused testified that he had heard that Silas beat up a lot of people and he gave the names of 6 people who he understood had been assaulted by Silas, two of whom required medevacs. [ 106 ] The accused had been punched at least once by Silas at the time he pulled out the knife.

He said that he thought he could defend himself with the knife. [ 107 ] There was not really any opportunity to use the knife in a show of force to ensure there would not be more fighting as, according to the accused, Silas “jumped him” and they quickly ended up on the floor. [ 108 ] The Crown submits that the act in question is not the act of taking the knife out of his pocket and showing it; the act in question is the use of the knife to stab Silas.

While this submission is correct, the circumstances leading up to the use of the knife are relevant as they provide context and the basis for the state of mind of the accused at the relevant time. [ 109 ] The accused did not testify as to his state of mind at the precise moment of the stabbing because he did not admit to the stabbing. In my view it is important to view his evidence as a whole.

I do not understand it to be so much a denial of having stabbed Silas but as an inability or a lack of certainty as to precisely when that occurred, beyond it having occurred sometime during the fight on the floor. [ 110 ] The accused testified that when he left the house he did not know that he had stabbed Silas. When he got to C.M.’s house he had blood on him and used the sink to wash himself. S.W. went to F.G.’s house and he followed her there. They saw Silas on the floor and he was hurt.

He said he then realized he must have stabbed Silas. [ 111 ] There is evidence of a conversation between the accused and S.W. following the stabbing in which utterances are made that speak to the state of mind of the accused. The evidence is conflicting as to where this conversation took place and what precisely was said. It is agreed that at the preliminary hearing she testified that the accused told her he thought Silas was going to kill him. [ 112 ] I am not sure that it is necessary or possible to determine precisely what was said between the accused and S.W. following the stabbing.

I have found S.W.’s evidence to be unreliable. Even if I were to rely on her evidence in this regard, the general tenor of the discussion was that the accused was reacting to the application of force. [ 113 ] The evidence suggests a tense situation in which Silas had already shown violence and which had the potential for further violence when the knife was introduced. It is open to infer from this evidence that the actions taken by the accused, from the presenting of the knife to the use of the knife to stab Silas, was done in self-defence.

[ 114 ] I find that the Crown has not disproven that the stabbing was done in self-defence. iii. Was the act committed in reasonable circumstances? [ 115 ] A person acting in self-defence is justified in doing so as long as they use reasonable force in repelling the attack. [ 116 ] The reasonableness of the force used is not determined by the consequences of the actions taken in self-defence. Nor is a person required to measure to a nicety the degree of force used. [ 117 ] Section 34(2) sets out some of the factors that the court should consider in determining if the amount of force used was reasonable. This list of factors is not exhaustive: (

a) The nature and extent of the force or threat [ 118 ] The Crown submits that at the time the accused pulled out his knife, the threat that he was facing was that of a single punch. While it is true that that was the extent of the force at that point in time, the potential for further force was real and imminent. Silas was making statements about being able to kill someone and he was doing so in a context that was tense and unpredictable. It was reasonable for the accused to take this as a threat. [ 119 ] Silas did not have a weapon. However, fists can also be powerful weapons. The law does not require that one can protect oneself from punches only by returning punches. (

b) The extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force [ 120 ] At the time the knife was pulled out Silas had been momentarily placated by having been given a drink, but the accused had reason to believe this would be short-lived. The accused testified that he was not able to leave the house because Silas was between him and door. [ 121 ] The fighting on the floor was not a fight between equals; the accused was taking a beating. At that moment escape was not an option. (

c) The person’s role in the incident : [ 122 ] As previously discussed, there was conflicting evidence as to how the fight started. It is difficult to determine precisely what occurred when the evidence is conflicting on key points and where everyone is heavily intoxicated. I am unable to reject the accused’s evidence that Silas initiated the fight. This is also consistent with the evidence regarding the prior altercation between Silas and the accused at the Co-op store and the evidence of the former by-law officer, which can be used to support a finding that Silas’ character was such that he was capable of initiating fights without provocation. (

d) Whether any party to the incident used or threatened to use a weapon : [ 123 ] I am mindful that the accused was the one who introduced a knife into the situation and that fact is one of the factors that I must

consider. [ 124 ] F.G. did not testify to having seen the accused take out the knife and open it during a break in the fight. He did not testify to even having seen a knife. His evidence is of little assistance. [ 125 ] The accused testified to having taken out the knife and opening it after having been punched by Silas and while fearful of further violence from him. He did not hide the knife, which might have suggested an intent to lure Silas back into a fist fight and then use the knife unexpectedly. The knife would have been visible to Silas, who at that point was some distance from the accused.

Many people would have taken the showing of the knife as reason to calm down and perhaps remove oneself. According to the accused, this is not what Silas did. He reacted quickly by grabbing the accused and recommencing the physical conflict. [ 126 ] The handling of the knife by the accused prior to the recommencement of the fight was consistent with an attempt to show force so as to bring the conflict to an end. (

e) The nature, duration and history or any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; [ 127 ] As previously discussed, the accused and Silas had one prior altercation in which Silas was the aggressor. (

f) The nature and proportionality of the person’s use or threat of force: [ 128 ] The fatal injury to Silas was inflicted when Silas was on top of the accused, punching him. At that point the accused had few options available to him. He testified he did not get one punch in. This is consistent with the photos which show Silas’ injuries. The accused’s options were to try to fight back by punching or to try to protect himself as best he could and take a beating.

He was faced with these options knowing that the person on top of him was capable of administering severe injuries to people. [ 129 ] The injury was a single stab wound. It very quickly brought the fight to an end, at which point the accused fled. He did not continue to inflict injury on Silas, either by stabbing him more or by punches, kicks, or anything else. [ 130 ] I am unable to find that the force used was excessive given the threat the accused was facing. IV.

CONCLUSION [ 131 ] On the charge of murder I find the Crown has not disproven self-defence beyond a reasonable doubt. [ 132 ] The accused is not guilty of murder and of the included offence of manslaughter. Dated at the City of Iqaluit this 1 st day of April 2021

___________________ Justice S. Cooper Nunavut Court of Justice