R. v. Muckpaloo, 2021 NUCJ 13

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Muckpaloo, 2021 NUCJ 13 Date: 20210226 Docket: 01-18-I-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. Sittman Location Heard: Iqaluit, Nunavut Date Heard: February 25-26, 2021 Matters: Application to admit evidence pursuant to R. v. Scopelliti, (ON CA), 34 O.R. (2d) 524 REASONS FOR DECISION

(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 [ 1 ] Counsel for Mr.

Muckpaloo has brought an application to lead evidence of acts of violence by the deceased that were unknown to the accused at the time of events that led to the accused being charged with murder. [ 2 ] Counsel are in agreement that the following evidence is admissible: the criminal record of the deceased and the PROS (Police Reporting Occurrence System) entries that relate to the convictions on the criminal record. [ 3 ] Counsel are not in agreement in relation to the following evidence: a portion of a court transcript from November, 2010 that sets out the facts supporting a conviction of the deceased for aggravated assault; records from Baffin Correctional Centre that set out incidents of aggression where the deceased was either a participant or the aggressor; and viva voce evidence of three witnesses.

II. CROWN’S POSITION [ 4 ] The Crown submits that admitting all the evidence would result in trial unfairness as it would tend to suggest that the deceased was somehow deserving of what happened to him. The Crown submits that the criminal record and the related portions of the PROS are sufficient to achieve what the Defence is seeking to achieve: that being, bringing forward evidence which shows the deceased was aggressive and prone to violence. They submit that no more is required to establish this. [ 5 ] The Crown also submits that one of the proposed viva voce witnesses should not testify for policy reasons.

A. The transcript from November 2010 [ 6 ] The Crown submits that this transcript relates to an incident that is so far in the past that it is of little relevance and assistance to the court. They submit that it is too remote and has no nexus to the matter before the court. I disagree.

[ 7 ] A criminal record, while of some assistance on the issue of character regarding violence, simply does not provide the trier of fact with the same amount of information. A criminal record that includes many convictions for assault tells the court nothing about the nature of the assaults. Are they minor in nature? Are they all involving the same victim? Do they involve weapons? If so, what type? [ 8 ] As suggested in R v Hamilton , 2003 BCCA 490 , the absence of details regarding the circumstances of the convictions may diminish the probative value of the evidence (at para 67).

Indeed, this proposition seems to be accepted to some extent by the Crown, who has agreed that the PROS reports providing some of the details of the assault convictions on the criminal record should go before the court. Surely a transcript from the court proceedings setting out the facts that were accepted to sustain the conviction are a better source of such evidence than the notations in the PROS reports.

The fact that there are not transcripts for all the assault convictions does not mean they should not be used when available. [ 9 ] While the conviction from 2010 is dated, it being approximately eight years prior to the death of the deceased, it is not isolated and cannot be considered an anomaly. The 2010 conviction for aggravated assault is the second entry on the criminal record and the first conviction for an offence of violence. The criminal record is a continuous entry of convictions for offences of violence up to October of 2017, when a jail sentence of just over nine months was imposed.

Contrary to the Crown's contention that the 2010 conviction represents the actions of a younger and potentially different person, the balance of the criminal record suggests the opposite. [ 10 ] Further, the facts supporting the conviction for the aggravated assault disclose an unprovoked assault. In that way, the earlier assault is similar to the evidence of the accused regarding this matter and may assist in determining whether his evidence in this respect should be accepted. [ 11 ] I also consider the serious nature of the facts in relation to the 2010 aggravated assault conviction relevant.

They may be of some assistance in assessing the state of mind of the accused and the proportionality of his response. I say this while acknowledging that it is not clear from the evidence that the accused had specific knowledge of this aggravated assault. The accused did have knowledge of two assaults by the deceased where the victims were medevac’d. The victim of the 2010 aggravated assault was medevac’d to Ottawa. B.

The records from Baffin Correctional Centre [ 12 ] The Crown submits that these records are of no assistance as the environment they occurred in (a jail) is such a different context that is does not assist in determining a person’s behaviour in a community. [ 13 ] I agree with the Crown that the social context in a jail setting is substantially different from that in a community, and for that reason, the probative value of such evidence may be diminished.

On the other hand, incidents in the jail are examples of, for lack of a better term, “male on male” violence and for that reason may be more relevant. [ 14 ] It is important to remember that where the Defence seeks to adduce this type of propensity evidence it does not have to meet the standard of similar fact evidence to be admitted. [ 15 ] The jurisprudence is clear that in an application such as this, the probative value of the evidence does not have to be significant.

There simply must be some probative value which is not significantly outweighed by prejudicial effect. [ 16 ] The records from BCC will be admitted. C. Viva voce evidence [ 17 ] The Crown opposes the admission of each of the three proposed witnesses. (

i) E.D.

[ 18 ] The witness was an intimate partner of the deceased. Her proposed evidence is that while they were together the deceased beat her up every day. Sometimes the beatings were serious, sometimes they were not. Sometimes she had to go to the nursing station. She will testify that the deceased also beat up men, at least one of whom had to be medevac’d to Ottawa. She will testify that the deceased told her that he tried to beat up the accused once, outside the Co-op (corroborating the accused's evidence on this point) [ 19 ] The Crown submits that her evidence does not disclose specific incidents of violence.

I understand this submission to be only in relation to the incidents of violence against her, as she does detail specific incidents of violence against men. [ 20 ] With respect to hearing her evidence, the Crown also opposes it on policy grounds. The Crown describes the witness as single, Inuk, and a prior victim of domestic violence at the hands of the deceased. The Crown submits that the court must be sensitive to the vulnerabilities of the witness and, essentially, should not re-traumatize her.

The Crown further submits that given his role in the justice system he would not be comfortable cross-examining her, as it would have the potential to undermine her trust in the justice system. [ 21 ] I will first address the admissibility of the evidence from the perspective of the applicable legal principles. Then I will discuss the policy concern raised by the Crown. [ 22 ] This proposed witness has knowledge of specific incidents of violence perpetrated by the deceased. Indeed, she was the victim of many of them.

The admissibility of evidence of domestic abuse in the context of an application such as this was discussed in the case of R v Hillis , 2016 ONSC 450 . In that case, evidence that the deceased had assaulted his domestic partner on two occasions some 18-20 years prior to his death were ruled inadmissible.

Many of the reasons for that finding do apply to the matter before me. [ 23 ] However, the court in Hillis discussed the nature of domestic violence as opposed to “male on male” violence, stating that “assaults against a female domestic partner may not predict the likelihood of violence against a male” (at para 112). The court held that there was the potential for prejudice if the evidence was admitted, as domestic assault convictions may evoke feelings of hostility on the part of the jury that are disproportionate to the level of violence perpetrated in the assaults.

The court found that the domestic assault convictions were both contextually and temporally remote from the matter before the court. [ 24 ] The

summary of the evidence of the proposed witness does not indicate when she was with the deceased and the period over which the assaults occurred. However, the PROS report, which is admitted by consent, details many assault convictions against this witness. [ 25 ] There are several factors that distinguish the domestic violence evidence in this matter from that before the court in Hillis . The first is the number of acts of violence. There were two in Hillis . In this matter, the proposed witness will testify to being beaten almost daily while she was with the accused.

Secondly, the assaults against this witness were more recent; they were not some twenty years prior. Further, this matter is not proceeding before a jury.

Presumably, the inflammatory impact of the evidence on the trier of fact and the risk that the evidence will be used improperly is thereby addressed. [ 26 ] This proposed witness also has other evidence to provide in addition to the evidence of domestic violence. [ 27 ] She has knowledge of violence perpetrated by the deceased on males, including one incident where the victim was medevac’d. [ 28 ] She will testify to the deceased having told her that he tried to beat up the accused outside the Co-op store one summer. Pursuant to R. v.

Hamilton , this evidence, although hearsay, may be admissible as part of general reputation evidence. [ 29 ] The Crown submits that for policy reasons the evidence of this witness should not be admitted. As previously stated, the Crown submits that the witness is particularly vulnerable, that the court must be sensitive and responsive to her circumstances, and that given his role in the justice system, placing him in a position of having to cross-examine her could undermine trust in the administration of justice. [ 30 ] Crown Counsel has not spoken with the witness.

We do not know if she is reluctant to testify, and if so, if her reluctance goes

beyond that of any witness called upon to testify in a serious matter. The witness will not be testifying against the person she alleges abused her. [ 31 ] The Crown has some ability to mitigate the impact of testifying on the witness. The Crown, with the assistance of its Crown witness coordinator, can speak with the witness. Attempts could be made to reach an agreement on what her evidence would be if she were to testify and then to simply argue the admissibility of the evidence.

No such steps have been taken. [ 32 ] If there are legitimate concerns as set out by the Crown, the remedy is not to exclude relevant and probative evidence in a murder trial. The remedy is to try and make accommodations for the witness. At this point, no one who has spoken with the witness has suggested that such accommodations are required. [ 33 ] I wonder about the need to elicit evidence from this witness about her abuse at the hands of the deceased given the information in that regard that is in the PROS report. The fact that the deceased abused her over the course of their relationship is beyond dispute.

I do not expect counsel would attempt to review each incident of violence towards the witness. However, if this witness is to testify at all, the nature of the relationship between her and the deceased is necessary background. [ 34 ] The witness' knowledge of specific incidents of violence by the deceased towards others is admissible. Her evidence regarding comments made by the deceased about an incident with the accused outside the Co-op is admissible. The nature of the witness' relationship with deceased is admissible, but counsel are directed to not elicit evidence on specific assaults against her.

This evidence is sufficiently set out in the PROS reports, and as trier of fact, I do not require more. (ii) G.D. [ 35 ] This witness became involved with E.D. while the deceased was in jail. He and E.D. were together for six years. He will testify that the deceased called him from jail and threatened him several times, saying he wanted to kill him. They made their peace when the deceased returned to the community, but a few weeks later the deceased was wanting to fight him.

The witness left the community because of the deceased and did not return until he died. [ 36 ] The Crown opposes the admission of this evidence because evidence relating to the criminal acts against the witness by the deceased is disclosed in the PROS, and additional evidence from the witness is unnecessary. [ 37 ] I have reviewed the PROS. It discloses one incident in 2016 involving this witness.

It does not refer to the threatening phone calls, which the proposed witness will testify to, or the content of those calls, those being threats to kill. [ 38 ] The evidence of this witness is admissible. (iii) B.A. [ 39 ] This witness is or was a bylaw officer. He will testify to having seen the deceased fighting several times; once by the community hall and once by the Northern Store. At the Northern Store the deceased lashed out at someone and started punching them. He will testify to being on the Alcohol Committee and that the Committee never approved the deceased for alcohol because “he was trouble”.

His reputation in the community was that he was someone you watched out for. [ 40 ] The Crown opposes the admission of this evidence on the basis that his evidence is more in the nature of gossip and rumour than general reputation. [ 41 ] It is sometimes difficult to determine the line between rumour and reputation. I refer to the following from Hamilton at para 56 :

As to the nature of evidence of general reputation and its admissibility, appellant’s counsel referred us to the following passage in McWilliams, Canadian Criminal Evidence , 3rd ed. (Aurora, Ontario: Canada Law Book, Release No. 30, March 2003) at 10-4.2-10-4.3: In R. v. Hardy (1794), 24 St. Tr. [State Trials] 199, at p. 200, Erskine in his speech to the jury said the witness is not to say, “what A, B, or C told him about the man’s character, but what is the general opinion concerning him.

For ‘character’ is the slow spreading influence of opinion arising from a man’s deportment in society, and extending itself in one circle beyond another till it unites into one general opinion. That general opinion is allowed to be given in evidence.” [ 42 ] Reputation evidence is not stories or anecdotes about what a person did that are talked about in a community and passed from one person to another. Reputation reflects the cumulative impact of a person’s actions and deeds over time. A person’s general reputation is the opinion of the community, not that of a few people.

A witness can speak of a person's general reputation without knowing the person because the witness is not testifying as to their personal experiences or opinions of the person but as to the opinion of the community at large. The witness must be a member of the community, should be aware of its social fabric, and should be aware of the opinion of all factions of the community, not just those within which the witness socializes.

This is particularly so in a small Indigenous community, where the views and opinions of those who are not from the community, who are not Indigenous, and who do not speak the language may be less likely to reflect the opinion of the community. [ 43 ] The evidence of this witness as to incidents of violence perpetrated by the deceased that he saw is admissible. [ 44 ] Provided the witness meets the criteria of being able to provide evidence of general reputation, that evidence will also be admitted. III. TRIAL FAIRNESS [ 45 ] I wish to address the Crown's submission regarding trial fairness.

First, the Crown argues the evidence is unnecessary as it is already included in the criminal record and in the PROS reports.

Secondly, the Crown expresses a concern that a preponderance of such evidence risks the trier of fact using the evidence in an improper manner and concluding that the deceased was somehow deserving of his fate. [ 46 ] There is no limit on the amount of evidence that may be called to establish a particular fact, as stated in R v Bishop , 2013 NUCA 3 at para 47 : “No rule of law forbids a party to lead two pieces of evidence to prove the same thing, nor forbids him to adduce evidence to confirm evidence which someone else has given.” [ 47 ] Further, from my review, not all of the evidence that the witnesses can provide is contained in the criminal record and the PROS. [ 48 ] Clearly there are different rules for the admissibility of character evidence of an accused as opposed to a witness or, as in this case, the deceased.

This is to avoid wrongful convictions. With limited exceptions, character evidence of an accused is not admissible unless the accused places his character in issue. This is to ensure that the trier of fact does not rely on such evidence to determine that the accused is the type of person who would commit the offence and therefore must be guilty. Such reasoning runs a real risk of wrongful convictions. The same risk does not arise in relation to witnesses or third parties. [ 49 ] This does not mean that the concern raised by the Crown cannot be addressed by the court, when appropriate to do so.

Generally, the accused will not be permitted to portray the deceased as a violent brute with few, if any redeeming features, while leaving the impression with the trier of fact that the accused is non-violent, peaceful, and law abiding when such is not the case. To do so would distort the evidence and would deprive the trier of fact of evidence that may be necessary for them to properly undertake the fact-finding process. IV.

SUMMARY [ 50 ]

November 2010 transcript from court proceedings admitted Records from Baffin Correctional Centre admitted Viva voce evidence: E.D. admitted; however, counsel is not to go beyond the general nature of her relationship with the accused into individual incidents of violence against her G.D. admitted B.A. admitted [ 51 ] I will note that evidence of general reputation that it is proposed be given by these witnesses is subject to the evidence meeting the criteria of such evidence. Dated at the City of Iqaluit this 26th day of February 2021 ___________________ Justice S. Cooper Nunavut Court of Justice