R. v. Kingwatsiak, 2016 NUCJ 02

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Kingwatsiak, 2016 NUCJ 02 Date: 20160202 Docket: 03-10-122 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Peter Kingwatsiak ________________________________________________________________________ Before: The Honourable Madam Justice Tulloch Counsel (Crown): A. Porteous; B. MacLaren Counsel (Accused): J. Morton Location Heard: Iqaluit Nunavut Date Heard: June 23-26, 2015; August 27, 2015; December 7, 2015 Matters: Criminal Code, s. 235(1) ; s. 348(1) (

b) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

Table of Contents REASONS FOR JUDGMENT 1 I. INTRODUCTION 3 II. ADMISSIONS OF FACT 4 A. Agreed Facts: Prior to September 17, 2010 4 B. Agreed Facts: September 17 and 18, 2010 5 C. Agreed Facts: Early morning, Sunday, September 19, 2010 6 D. Agreed Facts: Day and Evening, Sunday, September 19, 2010 7 E. Agreed Facts: Monday, September 20, 2010 10 F. Agreed Facts: After September 20, 2010 16 G. Agreed Facts: Pathologist’s Report 17 III. EXPERT EVIDENCE 17 A. Dr. Philip Klassen 19 B. Doctor David Rosenbloom 21 C. Dr. Gary Chaimowitz 23 IV. CIVILIAN WITNESSES 24 A. Manu Kingwatsiak 24 B. Etidloi Adla 25 C.

Tytoosie Tunnillie 27 V. EVIDENCE FROM THE ACCUSED 28 VI. POSITION OF THE PARTIES 34 A. Crown’s position 34 B. Defence’s position 34 VII. ANALYSIS 35 A. Murder 35 B. Planning and deliberation 40 VIII. FINAL CONCLUSION 45 I. INTRODUCTION [ 1 ] In the early morning hours of September 20, 2010, Peter Kingwatsiak committed two very serious offences in his home community of Cape Dorset, Nunavut. He stabbed his uncle, Manu Kingwatsiak, with a knife in the face causing a permanent scar and then he shot and killed his step-brother, Mappaluk Adla. [ 2 ] To his credit, Mr.

Kingwatsiak admits that he did these things. [ 3 ] Although the offence involving Manu Kingwatsiak was included in the indictment due to its underlying circumstances and proximity to the murder, the focus throughout this trial was directed to the charge of murder.

[ 4 ] This is because the charge of aggravated assault for stabbing his uncle requires only general intent on the part of the accused. On the other hand, for the accused to be found guilty of murder, he must have specific intent. [ 5 ] In plain language, this means that in order to find Mr.

Kingwatsiak guilty of murder, he must have known in his own mind that death was likely to result from his actions at the time when the shooting occurred. [ 6 ] What is at issue for this Court to decide is whether the accused had the specific intent necessary to be convicted of murder and, if so, whether that murder was planned and deliberate in the circumstances. [ 7 ] Defence submits that the accused was so intoxicated by the effects of sniffing gasoline and so upset that morning that he could not form the specific intent required for murder and that he should therefore be convicted of manslaughter. [ 8 ] Crown says there is ample evidence of both specific intent and planning and deliberation in this case and that Peter Kingwatsiak is guilty of first degree murder.

II. ADMISSIONS OF FACT [ 9 ] Prior to the start of the trial, Crown and Defence submitted what is called an “Agreed Statement of Fact”. It contained a number of important facts which are admitted without the need to call testimony. This assisted the Court a great deal. [ 10 ] The initial document entitled Agreed Statement of Fact was made Exhibit 1 in the trial. [ 11 ] Prior to closing , new document was filed with the Court entitled: Admissions of fact pursuant to

Section 655 of the Criminal Code : Post-Trial Version [Post-trial version]. I will now mark it as Exhibit #13. [ 12 ] I have of course carefully reviewed both documents and I find that the changes between the first and the second document are minor. A few words were added and a few subtracted in order to specifically conform to the evidence given at trial. [ 13 ] I have relied only on the Post-trial version to assist with my decision today. [ 14 ] These undisputed facts now form part of the evidence.

In addition to these lengthy admissions, further evidence was called at trial. [ 15 ] Transcripts of the evidence were ordered. Six volumes containing 661 pages were received and carefully reviewed. [ 16 ] I will now provide you with a

summary of those agreed facts in chronological order. [ 17 ] During trial, the parties referred to the deceased as both Mappaluk and Mapp. For the sake of consistency, I will do the same. A. Agreed Facts: Prior to September 17, 2010 [ 18 ] A teenage friend of the accused, Connear Ross, told police that a couple of weeks before the death, Peter Kingwatsiak talked about beating up Mapp. He repeated this intention a few times while they were together. The accused said it near the school and he repeated it three or four days later while they were walking around town.

Peter Kingwatsiak appeared to be sober and did not smell of gas or alcohol when he made these comments. The accused admits that he made these utterances in the circumstances described.

[ 19 ] Approximately three days before the accused shot Mapp, he told Tommy Padluq (his best friend) that he was going to kill Mapp. He said this more than once and Tommy says that he seemed “happy” when he said it. Tommy did not smell gas or alcohol on the accused when the comments were made. B. Agreed Facts: September 17 and 18, 2010 [ 20 ] Dances were held at the Cape Dorset Community Hall [Community Hall] on Friday and Saturday night. Each dance lasted from approximately 10 p.m. to 1 a.m. the following morning. Geena Rose and Mapp spent time together at, at least one of these dances.

Maryann Samayualie noticed the accused sitting in the corner with Tommy Padluq watching Geena Rose and Mapp. [ 21 ] Qabaruak Samayualie went to the September 17th, dance with Mapp. They ran into the accused and had a conversation. Mr. Samauyalie observed that the accused and Mapp “were getting along good”. [ 22 ] The accused visited his friend, Tytoosie Tunnillie, on Saturday September 18, and his friend observed that Peter was cranky and jealous over a girl. [ 23 ] Siaza Padluq was out walking just before 10:30 p.m. on Saturday when the accused approached her. They had a short conversation.

The accused said to Siaza in Inuktitut: “if Geena Rose and Mappaluk talks again or hangs out I’m gonna kill him no matter what”. He also said that he was jealous of Mapp. [ 24 ] Tommy Padluq attended the Saturday night dance with the accused at the Community Hall. Neither of them consumed alcohol or drugs during the evening. The accused appeared to be acting normal throughout. Tommy saw that the accused was “very mad” and “jealous” because Geena Rose was hanging out with Mapp at the dance. At one point, the accused said he was going home and left.

When he returned to the Community Hall about 20 minutes later, he asked Tommy to feel bullets which he had put in his hoody pocket. Tommy identified about ten .303 bullets. [ 25 ] On two separate occasions during the Saturday night dance, the accused explicitly asked Tommy if he would help him kill Mapp. Tommy Padluq described him as being “mad” when he asked these questions. The accused does not have any recollection of asking Tommy these questions or of going home for the bullets.

He does not recall asking him to feel the bullets in his pocket, but he does not dispute Tommy’s recollection. [ 26 ] At no time did Tommy smell alcohol, drugs, or gasoline on the accused. Tommy has never seen the accused sniff gasoline. C. Agreed Facts: Early morning, Sunday, September 19, 2010 [ 27 ] After the Saturday night dance ended at approximately 1 a.m. Sunday morning, Mapp and some friends went to the Co-op Store [Co-op]. [ 28 ] Connear Ross left the Community Hall to hang out near the hamlet office with some friends including Henry Ainalik and the accused.

The accused told Connear in Inuktitut: “nobody’s going to have problems with Mapp anymore. You aren’t going to have problems with Mapp anymore.” Mr. Ainalik and Mr. Ross both heard the accused say in Inuktitut: “he has to be living, so he’s living” referring to Mapp. After making this comment, the accused left. [ 29 ] Geena Rose went walking with her friends. They eventually wound up near the Co-op. Mapp joined them and when they were in the valley the accused saw them together. He came up to Geena suddenly and they argued for about half an hour.

The accused was jealous and told Geena Rose “I will kill him” referring to Mapp. She asked him why and he said he would kill Mapp if she spoke to him or hung out with him again. He told her that he was watching them “24/7”. She walked away and returned to the Co-op to be with her friends.

[ 30 ] Sometime after 2 a.m., Geena Rose left the Co-op and again went walking in the valley with friends. She looked towards the hill in the valley and saw the accused holding a .303 calibre rifle aimed at Mapp who was near the baseball diamond, walking up the hill towards the valley. The two men were approximately 20 to 25 feet apart. [ 31 ] She ran up to the accused and yelled at him to stop. One friend reported hearing Geena Rose shout at the accused: “Peter, Peter, don’t kill him, kill me.” Another friend reported hearing Geena Rose yell out three times words to the effect of “shoot me instead”.

A third reported hearing Geena Rose yell “we never did anything” and hearing the accused tell her to “fuck off”. A fourth heard Geena Rose tell the accused that she wanted the rifle’s bullets and heard the accused say no. [ 32 ] Geena Rose grabbed the accused and he told her to leave so that she wouldn’t have to watch what he was going to do. He told her he was going to kill Mapp and that he had to do it. She told him he didn’t have to do it and she told him a second time to put the rifle away. This time he lowered the rifle and placed it against a pole.

She pushed him away from the rifle and held him tightly around the waist to prevent him from reaching back for it. They spoke for approximately half an hour. He tried to get her to go out with him. She refused. The accused told her that he was jealous because he thought she was going out with Mapp. She told him to unload the rifle. He did and gave her ten bullets which said .303 on them. She told him to go home. [ 33 ] The accused took the rifle and told Geena Rose he was going home. He walked in the direction of his father’s house.

At no time did she smell any alcohol, gasoline, or drugs coming from the accused. [ 34 ] As Mapp was leaving the area in which the accused had pointed a rifle at him, he ran into Tim Ottokie. Mapp greeted him by saying: “hey Tim, you wanna watch me get killed?” Mr. Ottokie said “no” and continued on his way. D. Agreed Facts: Day and Evening, Sunday, September 19, 2010 [ 35 ] Sometime later on Sunday morning, Siaza Padluq was approached by the accused who told her that he had “almost killed Mappaluk”.

He said that he was gonna kill Mapp, but didn’t because he did not want Geena Rose to see it happen. [ 36 ] At about 1 p.m., the accused went to his mother’s house, Qaluituk Kingwatsiak. They chatted and the accused didn’t mention anything about Mapp or his problems. He stayed for a couple of hours before he left. [ 37 ] The accused went out boating with his paternal grandparents at some point during the day.

After the trip, they brought some ammunition and three firearms to his father’s house: a black .22 calibre rifle, a tan brown .410 shotgun, and a tan brown 28 or 20 gauge shotgun. [ 38 ] I pause here to note that the accused was steadfast in his testimony that the .22 calibre rifle talked about here was the one that he retrieved from the boat. It is the same weapon that was used by him to shoot and kill Mr. Adla.

Counsel and this Court agree that where the rifle came from is not important. [ 39 ] At approximately 6:45 p.m., Mialisa Nuna and the accused were walking together when they came across Geena Rose who was on her way to church with some friends. This was the first time that Geena Rose and the accused had seen each other since the incident with the rifle early that morning. [ 40 ] The accused asked Geena Rose for the bullets back and whether she was following him. He asked her to go for a walk with him, but she refused. He asked if she was with Mapp or if she was going out with him to which she responded no.

He asked again for the bullets, but she told the accused she had thrown them away. She then went into the church. [ 41 ] At approximately 7:30 to 8:00 p.m., Mialisa and the accused were walking and Mialisa told the accused that she missed Mappaluk as they had broken up very recently. The accused replied that “I don’t want to do this, but I love my girl” and “I don’t want to hurt him but I think he’s going after my girl” or, “I love my girlfriend but I don’t want to hurt him.” He did not explain these comments further.

[ 42 ] Sometime that evening, Pudluq Qavavau was walking around listening to music in the Muliujuq area where he came across the accused, who was alone. The accused asked him if he wanted to smoke weed with him, but Mr. Qavavau declined. [ 43 ] The accused said that he planned to drink the next day. He was “pissed off” because he believed that his ex-girlfriend, Geena Rose, was “cheating” with Mappaluk. He said words to the effect of “if I see them together in this town I’m gonna kill him”. Mr. Qavavau doesn’t believe the accused had been sniffing gas when they ran into each other that evening.

The last time he had sniffed gas with the accused, the accused had been badly burned. Mr. Qavavau states that this experience really scared them both and they never sniffed together again. [ 44 ] The accused says he has no recollection of the conversation with Mr. Qavavau, but does not dispute the accuracy of Mr. Qavavau’s version of events. He told Dr. Klassen in 2012 that the incident where he burned himself due to sniffing occurred when he was 13. [ 45 ] The accused and Mialisa later went to Mialisa’s house. Her parents Taqialuk and Natsivak Nuna were home.

They said he looked normal and was just like himself during the visit. Mialisa described the accused as seeming “happy”. [ 46 ] During his visit at Mialisa’s house, he asked if he could use her laptop and go on Facebook. She agreed. He was online for approximately one hour. Mialisa went to check on him at one point and observed that he was chatting online with Geena Rose and another girl. [ 47 ] During their online chat, the accused asked Geena Rose again to go out with him and to let him have another chance.

She told him no and signed off. [ 48 ] Natsivak reported that she didn’t notice how long he was on the computer, but after he was finished he looked fine. The accused joined Mialisa in the living room and watched TV with her for ten minutes before leaving sometime between 10:30 and 11:00 p.m. [ 49 ] The accused did not consume any drugs or alcohol, and did not sniff gasoline while he was with Mialisa or Natsiavik, nor did they. [ 50 ] At approximately 11 p.m., Neevee Akesuk was smoking outside House 1111. Her attention was drawn to the sound of someone crying. She saw the accused walking alone.

He stopped crying when he saw her, but kept walking. Ms. Akesuk heard him start crying again after he passed by her house. E. Agreed Facts: Monday, September 20, 2010 [ 51 ] At approximately 2 a.m. Monday morning, Qabaruak Samayualie saw the accused who appeared to be normal and sober. She did not smell anything on him at that time. [ 52 ] The accused’s father, Kooyoo Peter, briefly woke up when the accused entered their house somewhere between 2 a.m. and 3 a.m. He did not notice anything unusual or different about the accused. He said “hi my baby” to the accused and Mr. Kingwatsiak answered “hi Dad”. Mr.

Peter then went back to sleep in the TV room while the accused went to his own bedroom. [ 53 ] Sometime after 2 a.m, Olipika Oshutsiaq was at a window in her home listening to music when she saw the accused walking alone carrying two long guns; one in his hands and one, a rifle, strapped on his back. He was wearing black clothing including a black cap. He was walking away from his father’s house. He passed Ms. Oshutsiaq’s house and went behind a neighbour’s house. When he re-emerged into Ms. Oshutsiaq’s line of sight, he was no longer carrying a gun in his hands.

It is unclear whether he still had a gun strapped to his back. He then entered his mother’s house which was nearby. Ms. Oshutsiaq saw him leave and walk up the hill approximately ten minutes later. She thought something was wrong and decided to go out with a flashlight to look for the accused, but she did not see him.

[ 54 ] Qabaruak Samayualie was outdoors at approximately 4 or 5 a.m. He saw the accused walking behind the graveyard. He had a .22 calibre rifle in one hand and a 12 gauge shotgun in the other. [ 55 ] At 5 a.m. or very shortly thereafter, the accused knocked on his mother’s door. This is not the same house in which his father, Kooyoo Peter, lived. Qabaruak got up, opened the door and let the accused in. She did not notice anything unusual about him. They did not speak. She went back to bed. Five minutes after lying down she noticed that the house was unusually quiet. When she got up to check the accused was gone.

She had no concerns for him at that time. [ 56 ] At approximately 5:30 or 6:00 a.m., Kooyoo Peter woke up and went out to smoke in his back porch. He noticed the.22 calibre semi-automatic rifle that he had stored there the day before was missing. The other firearms brought to his house the day before were still in the porch. [ 57 ] Again I pause to note that the accused says the.22 calibre semi-automatic rifle was not in his father’s porch.

The evidence from the accused is he retrieved the .22 calibre semi-automatic rifle from his grandfather’s boat. [ 58 ] Between 5:30 and 6:00 a.m., Manu Kingwatsiak woke up and went to smoke a cigarette. He found his nephew, the accused, standing in the kitchen beside the washing machine holding a knife. It had a black handle, a silver blade, and was about one foot long. [ 59 ] Manu asked the accused what he was doing inside the house, but the accused did not answer. The accused then said he was going to Ashevak Adla’s house to drink. [ 60 ] Manu then went into the furnace room to have his smoke.

He bent down to pick up an ashtray when the accused entered the room and swung a knife at him slashing his face above his right eye. The attack was unprovoked and while the accused and Manu were not close, there was no previous anger or animosity between them. Manu went black for a moment and then asked the accused why he had done what he had. The accused did not answer. Manu told the accused to give him the knife. The accused did not reply, but instead attempted to stab Manu a couple more times. Manu blocked each attack and told the accused to stop.

He put his arms around the accused, hugged him, and told him that he loved him. Manu kept asking him why he had done what he had and the accused replied “someone told me to do it”. Manu asked him again and the accused replied “I don’t know”. Very shortly after, the accused started to leave carrying the knife. Manu asked him for the knife, but he would not give it to him. The accused put on his shoes while his uncle said words to the effect of “look Peter, I’m bleeding.” The accused responded “I don’t care” and left.

He walked in the direction of Mappaluk and Ashevak Adla’s house. [ 61 ] The accused took the knife used in the attack from Manu’s kitchen dish rack. It was the only knife Manu owned like that. The knife was never found by the police. [ 62 ] When asked about the accused’s behaviour, Manu said “he wasn’t drunk or on drugs but he wasn’t normal.” Manu did not smell any gasoline or alcohol on the accused and he later told police that the accused was not drunk. When Sergeant [Sgt.] Richardson asked if there was anything different about the accused that night, he said “not that much.

There wasn’t really much different that I seen in him or anything. He was just like Peter.” [ 63 ] The gash to Manu’s face required eight stitches and he retains a scar to this day. [ 64 ] Manu called the Royal Canadian Mounted Police [RCMP] at approximately 6 a.m. on September 20th. Constables [Cst.] Robert Driscoll and Ryan Tennant attended his house and after hearing his account of events, they proceeded to Ashevak and Mappaluk Adla’s residence. [ 65 ] The two officers arrived there at 6:25 a.m. Upon arrival, they found Mappaluk lying face down on the floor near the entry way.

There was a lot of blood, but no evidence of any struggle. He was lying in a supine position and police observed blood pouring out of his mouth. He appeared to be unconscious and unresponsive. He had no pulse. Efforts to revive him were unsuccessful and he was pronounced dead at 6:55 a.m.

[ 66 ] Photos were taken by police at the Health Centre after the nurses had washed his face. [ 67 ] Cst. Tennant and Sgt. McLaren observed a small calibre rifle barrel imprint on Mappaluk Adla’s forehead. It was described as a faint larger circle around a hole in Mappaluk’s forehead. [ 68 ] Peter Kingwatsiak admits that he shot Mapp in the forehead at the Adla home without provocation.

He admits that he shot him with a .22 magnum calibre rifle and that Mapp died as a direct result of that gunshot wound to his head. [ 69 ] At approximately 6:45 a.m., Tytoosie Tunnillie heard someone closing his back door so he got up to investigate. When he entered the living room he saw the accused standing over his brother Ezeevadluk Toonoo, who was sleeping on the couch. [ 70 ] Tytoosie said “hi Peter” and the accused, who was startled, replied right away, “hi Titoo. I have just killed Mappaluk. Me.”, with a smirk on his face. Tytoosie did not believe him because of the smirk.

Tytoosie walked into the kitchen, then came back and sat down beside the accused on the couch. The accused said he shot Mappaluk in the forehead and pointed to the middle of his own forehead between the eyebrows while saying, “here, here I shot him”. He then showed Tytoosie how he had held the rifle using an imaginary rifle held against his shoulder with his index finger crooked where the trigger would be and aimed it downwards. [ 71 ] The accused then said he was going to commit suicide. Tytoosie said “no” right away and Mr.

Kingwatsiak started to cry a little bit. [ 72 ] The accused stayed at Tytoosie’s home for slightly more than two hours. They went for a smoke, watched television, and talked. During that time, the accused appeared to be his normal self. Tytoosie did not think he was drunk. At no point did he smell any alcohol on the accused. At one point, all of a sudden, the accused said again to Tytoosie “lots of people don’t like him so I killed him. I’m telling the truth.” [ 73 ] While the accused was there, Tytoosie’s brother, Itidloi Tunnillie, woke up.

The accused said “hi Itidloi, I just killed Mappaluk.” Itidloi expressed disbelief and the accused said, “for real, I did.” He shook Itidloi’s hand and said he was telling the truth. He told Itidloi this several times. Itidloi heard the accused say he shot Mappaluk while he was sleeping. The accused had a kind of a smile when he spoke and he sometimes cried. [ 74 ] The accused also told Itidloi that he realized he had stabbed Manu after he already stabbed him. He told them that he was walking around the mountain area since 1 a.m. and that he went over to Manu’s while he was blacked out from sniffing.

The accused said he stabbed Manu above the right eye. He also said “when I was doing this to Manu, I woke up all of a sudden.” The accused told Itidloi that he was a “suspect” for the police. He kept saying that he wanted to see his great-grandmother and grandmother first and then he would give himself up to the police. Tytoosie noticed that the accused was not in a panic. [ 75 ] At around 9 a.m., Tytoosie and the accused were outside having a cigarette when Tytoosie’s father, Iola Tunnillie arrived. The accused told Tytoosie and Iola that he wanted to commit suicide.

Tytoosie tried to comfort him by saying that this would all pass and that people who kill others go to jail for a long time. Iola also advised the accused not to kill himself. The accused started crying harder. The accused said it wasn’t on purpose, that he didn’t want to do it, and that he was sorry. During this conversation with the accused and Iola, Tytoosie noticed that the accused smelled of gas. [ 76 ] The accused told Tytoosie not to call the police because he was going to turn himself in. He tried calling his mother and his grandmother, Novalinga Kingwatsiak, but was not successful.

Iola redialed the number and got Novalinga on the line. Iola heard the accused tell Novalinga that he would be going to jail and that he wouldn’t see them for a long time. The accused said he was sorry. [ 77 ] He also tried to call his paternal grandmother, Nitanie Peter, but he couldn’t get through. Shortly afterwards, his aunt Natsivak Nuna and a social worker arrived to pick him up and take him to his grandmother’s house before surrendering himself to the police. [ 78 ] Upon leaving the house the accused said to Natsivak “just wait. Let me get something”.

He went into the Tunnillie’s shed and emerged with a rifle, an ammunition magazine, and a pair of pants. The Tunnillie family was surprised to see the rifle as they did not keep guns in their shed or their house.

[ 79 ] Shortly after 9:30 a.m., the social worker drove the accused, Natsivak, and the rifle to Novalinga Kingwatsiak’s residence where various family members had gathered. [ 80 ] At approximately 9:40 a.m. the police attended. They seized the rifle from the social worker’s truck. It was identified as the firearm missing from Kooyoo Peter’s porch and the .22 calibre rifle that was used in the fatal shooting. [ 81 ] The police entered Novalinga’s residence with permission and were told by a young female adult that the accused was not present.

Police replied that he must be in the house because the social worker had seen him enter. At that point, Peter Kingwatsiak stood up without anything more being said and identified himself to the police. [ 82 ] Novalinga Kingwatsiak did not notice the accused showing any signs of intoxication while he was at her house and did not smell any intoxicants, although she told police she did not even think to smell him. [ 83 ] He was arrested at 10:06 a.m. by Sgt. McLaren. He was told why he was arrested and was given his Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter] rights. It appeared to the police that he clearly understood what was going on. The accused appeared to be very nervous and was shaking. He was returned to the police detachment and was processed. [ 84 ] When the accused was searched incident to his arrest, police noticed that he had the words “Geena Rose one and only” written in ink on the underside of his right arm between his elbow and his wrist. [ 85 ] Throughout their dealings with the accused that morning, the three police officers were in immediate and close contact with him.

At all times he appeared to be oriented to his circumstances. The police had no difficulty understanding anything said to them by the accused. The accused appeared to be sober and did not appear to have any difficulty understanding anything said to him. He responded appropriately to all police instructions. Peter Kingwatsiak appeared to them to be sober. At no time did any of the officers smell anything on the accused, be it alcohol, marijuana, or gasoline. [ 86 ] At approximately 11 a.m., Chris Hayward was on his way to his cousin Mapp’s house to check up on him.

On his way there three young teenagers flagged him down and directed him to a spot just up the hill behind Mapp’s house where he observed an old, rusty, loaded shotgun propped up against a rock. About two minutes later, this was turned over to the police. [ 87 ] Later in the afternoon, Eteriak Peter, the accused’s paternal aunt entered the accused’s home to retrieve some clothing for him. When she entered his bedroom she observed three photographs of the accused’s dead sister, Oolajuk on the bed. The accused and his sister had been close when she committed suicide several years before. Ms.

Peter also observed a few .22 calibre bullets on the accused’s bed. [ 88 ] During the evening, Constable Rob Daley interrogated the accused at the RCMP detachment in Iqaluit. In a voluntary statement, the admissibility of which is conceded, Constable Daley asked “what did you do? The accused answered, “murder”. Constable Daley then asked him “who did you murder?” The accused replied “Mappaluk”. F. Agreed Facts: After September 20, 2010 [ 89 ] Several days after the shooting, Kooyoo Peter returned home.

When he went into the accused’s bedroom, he found several photographs of Peter’s deceased sister as well as a note on the first page of his son’s bible. The note was in the handwriting of the accused and it read, in part: “there’s no tomorrow….it’s too late now… Geena doesn’t want to see me…It’s too late to fix…please don’t do anything to Geena Rose no matter what happens to me…I love you all …to Tommy, there’s a lot of things going on.” [ 90 ] On September 24, 2010, while the accused was in custody at the Katak Unit of the Baffin Correctional Centre, his cell mate, Jina Akikuluk, heard him talking on the phone.

He was talking about his girlfriend and how much he loved her. The accused said that he

killed Mappaluk because he loved his girlfriend, Geena. [ 91 ] Around the same time, the accused spoke to Daniel Iqaluk, another inmate. Out of nowhere he told Mr. Iqaluk that he had shot a guy in the head. When Mr. Iqaluk replied “for real? Is it true?” the accused replied in the affirmative and said he’d done it in front of a girl he liked. He said he got “really jealous” because the guy had been going out with his girlfriend. The accused told Mr. Iqaluk he was “drunk” at the time of the shooting.

The accused also said he shot the guy from behind the head. [ 92 ] Approximately one week after his arrest, the accused called Tommy Padluq and asked him to retrieve the .303 rifle and bullets from the Tunillie’s shed. The accused, speaking in Inuktitut, told Tommy to go get the rifle and that he would tell the truth in court so there was no need for Tommy to say anything about it. [ 93 ] A few days later, Tommy Padluq went to the shed and found a.303 rifle hidden behind some wood. One round was chambered in the rifle.

Tommy also found .22 and .303 calibre bullets in a Coffee Mate container along with 12 and 20 gauge shotgun shells. [ 94 ] Approximately one month after the shooting, the accused called Tytoosie from jail. He asked Tytoosie if anyone had found the 12 gauge shotgun on the mountain yet. [ 95 ] Soon after this phone call, Tytoosie found some bullets in a Tim Horton’s coffee can in the shed by his house. He also saw what he thought were two shotgun shells, a lot of small bullets, and two .308 or .30-30 bullets. G. Agreed Facts: Pathologist’s Report [ 96 ] Defence took no issue with the report submitted by Dr.

Milroy who examined the deceased post-mortem. His observations and conclusions are admitted and the report which is now part of the evidence in this trial was made Exhibit Six. [ 97 ] A very brief

summary is as follows. [ 98 ] The gun that killed Mr. Adla was fired a number of centimetres from the body. He estimated between 30 and 60 centimetres, at close range. [ 99 ] Dr. Milroy concluded that due to the infliction of the gunshot wound, incapacitation would have been immediate with death following rapidly. III. EXPERT EVIDENCE [ 100 ] Four expert witnesses were called to assist the Court with the issue of intent. They were Doctors Klassen and Chaimowitz, who are both Forensic Psychiatrists, Dr. Rosenbloom, who is a Pharmacologist, and Dr. Mamak, who is a psychologist. [ 101 ] Dr.

Mamak did not testify at trial, but her Psychological Assessment Report is admitted on consent and contains what she would have said if called. She is a psychologist and a lot of her report is imbedded in the report and testimony of her colleague, Dr. Chaimowitz. [ 102 ] As could be expected in such a serious case, a lot of information was provided by the expert witnesses. Each doctor prepared a report and a document outlining their experience in the field. [ 103 ] None of the experts called had lengthy or specific experience with respect to the effect on the adolescent brain from sniffing gasoline.

[ 104 ] All of them, however, agreed that at least initially the effects of inhaling are similar to the effects of alcohol. Dr. Klassen described it as follows: “…a bit of disinhibition, euphoria, giddiness, initially it’s a bit like alcohol, but then like a lot of things with drugs it becomes an issue of dosing.” {Transcript, p 42}. [ 105 ] All of the doctors agree that it is very hard to get a clear sense of dose when talking to inhalant users. First, because many of them are so young, and second, because no one is keeping track. No one is counting the number of times the person inhales the gasoline.

No one is able to adequately measure how hard they are inhaling. Further, the overall effect is often impacted by the person’s method of inhaling. Some do it directly from the source (which was what the accused did in this case) and some use a rag soaked in gasoline which is carried around for purposes of further sniffing and a more constant feeling of intoxication. [ 106 ] All of the experts testified and wrote their reports based on the information provided solely by the accused. There was indeed no one else who could provide this information.

The accused testified that he was alone when he sniffed gasoline and there is no evidence before the Court that anyone witnessed Peter Kingwatsiak using inhalants at any time in the days leading up to the death of Mappaluk Adla. [ 107 ] All of the doctors agree that at the time of the shooting, the accused was in a considerable amount of distress. He felt that his ex- girlfriend had been intimate with Mapp and he was very jealous.

He wanted his girl back and she had rejected him a number of times just prior to the offence. [ 108 ] The evidence given by the experts also takes into account the fact that Peter Kingwatsiak was very young. He turned 18 just ten days prior to the offence date. The doctors agree that his brain was likely that of an adolescent. A. Dr. Philip Klassen [ 109 ] Dr. Klassen testified for the Crown. He was on the witness stand for one and a half days. A

summary of his evidence is as follows. [ 110 ] The accused reported to Dr. Klassen that he did not have a significant history of alcohol use, but he did report a history of daily cannabis use. He went on to talk about some inhalant use. He says he sniffed a bit when he was much younger, age 12 or less. He did it once when he was 16 and then he sniffed gasoline in the early morning hours of September 20, 2010. The accused estimated about eight episodes of inhalant use in total during his young life. [ 111 ] In explaining the phenomenon of sniffing, Dr.

Klassen invited the Court to think of the body as a reservoir for the active ingredient of the inhalant. In the beginning there is an initial hit to the brain and then the inhalant goes into a reservoir from which it seeps out at a relatively low rate. The more hits a person takes, the fuller the reservoir becomes which relates to more aftereffects. [ 112 ] Increased and frequent use of inhalants makes for a fuller reservoir, but if the person doesn’t continuously keep it up with constant inhalation, the sniffing has more of an “on/off” effect.

His evidence is as follows: “If you go one hit after another you will fill your reservoir up and the peaks and troughs arguably become a little bit less and you have more of a lasting intoxication.” {[Transcript, p 43}. [ 113 ] When asked about the clinical symptoms from inhalant use, Dr.

Klassen testified as follows: The symptoms progress from the initial ones of euphoria, giddiness, disinhibition, those kinds of things, to more profound neurological effects which include hallucinations, pseudo hallucinations, cognitive impairment, memory problems, problems sequencing and executive behaviours, motor problems, people stumble around, slur their speech, to ultimately you can get to the point of seizures, coma and death. {Transcript, p 43} [ 114 ] High doses of inhalants mean high disorganization and stumbling.

What he actually said while on the witness stand is: “In higher doses these people are stumbling around, not making sense and in my experience their offending tends to be disorganized because they’re too cognitively impaired.” {Transcript, p 44}.

[ 115 ] The accused mentioned to Dr. Klassen three periods of sniffing on September 20, 2010. There was an initial period in the boat down by the beach, a middle period just prior to the attack on his uncle, and a third period between leaving Manu Kingwatsiak’s house and arriving at the Adla house. [ 116 ] Given what we know about the attack by the accused on his uncle, Manu Kingwatsiak, Dr.

Klassen concludes that inhalants may have played a role in that incident. [ 117 ] The doctor said that the accused was probably experiencing a mental state disturbance that may have included intoxication with respect to the assault on his uncle but, if so, it was likely voluntary intoxication. [ 118 ] The fact that the accused reports that he “woke up at Manu’s house” is indicative of the acute effect of the dose wearing off. [ 119 ] Dr.

Klassen did not feel that the third period of sniffing was significant in terms of the accused’s mental state at the time of the killing. [ 120 ] He told the Defence that, although he was not discounting that there were inhalants on board when the accused went into Mr. Adla’s home, the accused’s disclosure that he “woke up at Manu’s”, his behaviour at Mr. Adla’s house, and his self-report to Mr. Tunnillie less than an hour after the shooting, is not consistent with a very large dose of inhalant use after the attack on Manu Kingwatsiak. [ 121 ] Dr.

Klassen felt that the accused’s detailed description of what happened at the Adla home did not bring intoxication or mental state to bear in his opinion. Further, taking into account things like bullet angle and placement, there was no disorganization at the crime scene which would be consistent with a high degree of intoxication. [ 122 ] The kind of intoxication where you lose touch with reality involves slurring and people around you would notice. No one noticed this type of behaviour on the part of the accused.

In fact, even with respect to the attack on his uncle, the accused was speaking to him in full sentences. [ 123 ] Dr. Klassen concludes that the accused was experiencing a declining effect of the inhalants at the time he shot Mappaluk. [ 124 ] Dr. Klassen says that the most compelling evidence of this is the accused’s disclosure to his friend, Mr. Tunnillie, shortly after killing his step-brother. [ 125 ] His evidence on this point is as follows: When he spoke to Mr.

Tunnillie he didn’t talk about not remembering, he didn’t talk about memory fragments, he didn’t talk about haziness and he didn’t talk about intoxication. He said I shot him, he was sleeping. I shot him in the forehead and he was a bad guy. {Transcript, p 106} [ 126 ] The accused did, however, acknowledge to his friend that when he stabbed his uncle, he was under the influence of inhalants. [ 127 ] There is some evidence that the accused, when speaking with Dr.

Klassen, was shaping his responses and the doctor made note of some red flags which could result in a finding that Peter Kingwatsiak was malingering (which is another word for pretending in order to arouse sympathy or minimize what had happened). In a case like this where the accused has so much at stake this is not unusual. [ 128 ] An example of this was the inconsistency in his description of what Mr. Adla was doing at the time Peter shot and killed him. It varied from sleeping to getting up to being wide awake in three different accounts. Those different accounts cannot all be correct.

[ 129 ] The doctor’s overall conclusion was that there is no evidence of profound or significant intoxication which would cause him to find that Peter Kingwatsiak did not have the capacity to form the requisite intent for murder at the time that he shot and killed his step- brother, Mappaluk Adla. B. Doctor David Rosenbloom [ 130 ] Dr. Rosenbloom testified for the Defence. His evidence was fairly brief. [ 131 ] He was qualified as an expert to give evidence on pharmacology and the effects of drugs on a person’s system.

He admitted that the culture of gasoline sniffing was not his area of expertise and that he had very limited field experience. [ 132 ] Dr. Rosenbloom had two very short conversations with the accused over the telephone. The first conversation was very brief as the accused did not feel he was able to participate and the second conversation lasted approximately ten minutes. [ 133 ] The accused told Dr.

Rosenbloom that he started sniffing gasoline at around age 18 and that he would sniff it once a day by putting his nose close to the canister of gas {Transcript, p 351}. [ 134 ] The accused told the doctor that in the hours leading up to the event, he had sniffed gas on three occasions. The first time was when he pointed the gun at the deceased and was interrupted by Geena Rose. The second and third times occurred during the early morning hours of September 20, 2010. He said he was hitting the gasoline hard and that he blacked out on one occasion. No further details were provided. [ 135 ] Dr.

Rosenbloom told the Court that the major active ingredient in gasoline is a substance called Toluene which causes effects which are very similar to the effects caused by alcohol use. [ 136 ] The doctor testified that the use of marijuana is unlikely to impact the effects of inhalant use. [ 137 ] The doctor also testified that a person using inhalants would experience the effect within a few minutes and that it could last five to six hours. [ 138 ] He agreed that inhalant use could have an effect on memory over time. [ 139 ] Dr.

Rosenbloom says that the accused was confused about the attack on his uncle, but that he did remember shooting his step- brother. He told the doctor that he pulled the trigger when the deceased stood up. [ 140 ] The doctor admitted that his report was compiled without any analysis of credibility or malingering on the part of the accused. He relied totally on what he was told. [ 141 ] In cross-examination, he agreed with the Crown, indicating that, like alcohol, using inhalants reduces inhibitions. C. Dr. Gary Chaimowitz [ 142 ] Dr. Chamowitz also testified for the Defence.

He spent a considerable amount of time with the accused in preparation for his report and his testimony.

[ 143 ] Like Dr. Klassen, he is a forensic psychiatrist. [ 144 ] The accused told Dr. Chamowitz that he started sniffing gas at the age of 12. He said he used inhalants no more than four times per year. [ 145 ] Dr. Chamowitz admitted that Dr. Mamak found that the accused had elevated scores on a test that she administered which was meant to pick up levels of deception. It was designed to identify when the accused was either malingering or distorting the facts. She explained, as did Dr.

Chamowitz, that this was to some extent reasonable given that the accused appeared to be trying to present himself in a better light. [ 146 ] The doctor admitted that in his discussions with the accused there were some things that were “contradictory at times, even in the same description of events, such as I wanted to shoot him but I didn’t really want to shoot him.” {Transcript, p 592}. [ 147 ] With respect to events just prior to the shooting, the accused told Dr. Chamowitz that he had been sniffing gas four or five times to the point of losing consciousness.

He also told the doctor that he was quite distressed at the time. [ 148 ] In Dr. Chamowitz’s opinion, the unprovoked attack on Manu Kingwatsiak increases the likelihood of the accused’s intoxication. [ 149 ] At first, the accused appeared to remember clearly shooting Mappaluk. Further, at some level, he told the doctor that the deceased deserved to be shot, but he also said that he didn’t mean to shoot Mapp. [ 150 ] On another occasion, the accused told Dr. Chamowitz that he had very little memory of going into Mappaluk’s home and shooting him. [ 151 ] The accused did, however, give Dr.

Chamowitz a fair bit of detail and provided him with a fairly consistent sequence of events from September 18-20, 2010. [ 152 ] The accused also reported to the doctor that he didn’t mean it when he told people that he was going to kill Mappaluk. [ 153 ] In cross-examination, the doctor could not explain how no one appears to have noticed signs of intoxication after the accused left Mappaluk Adla’s home that morning. [ 154 ] Dr.

Chamowitz found no evidence in this particular case of a planned murder-suicide, although at one point the accused did tell the doctor that he had thought about shooting himself after this event.

He said that in fact he had held the gun to his chin, but had not been able to fire it. [ 155 ] The doctor testified that the effects of inhalants can wear off quite quickly or last a few hours. [ 156 ] He concluded by telling the Court that the accused, on a balance of probabilities, more likely than not lacked the capacity to form the necessary intent for murder at the time he shot and killed Mappaluk Adla on September 20, 2010. IV. CIVILIAN WITNESSES [ 157 ] Three civilian witnesses were called at trial: Manu Kingwatsiak, Etidloi Adla, and Tytoosie Tunnillie.

A. Manu Kingwatsiak [ 158 ] Manu Kingwatsiak testified about what happened at his home when the accused attacked him with a knife. [ 159 ] I find no need to repeat those facts that have already been agreed to, except to say that they were confirmed by the witness. [ 160 ] The following additional evidence was provided. [ 161 ] Mr. Kingwatsiak was asked if he could smell gas on the accused’s breath and his answer was “absolutely not”. The witness also told the Court that he did not think that he could smell anything coming from Peter’s clothes. [ 162 ] He testified that Mappaluk Adla’s house was close to his own.

It was maybe one block away. After the attack, Manu went to the window where he saw Peter Kingwatsiak walking towards the Adla residence. [ 163 ] He observed that the accused was walking straight like everybody else does. [ 164 ] The witness told us that the door to his home was locked every night, but on this occasion, for an unknown reason, it was unlocked. [ 165 ] In cross-examination, Manu admitted that Peter was a frequent visitor during the day, but never at night.

He was not invited and his presence was completely unexpected. [ 166 ] He admitted in cross-examination that if he had not been attacked by the accused, he would have been okay with the accused being in his house that morning. [ 167 ] Manu Kingwatsiak also admitted in cross-examination that when he first saw the accused he was just standing there, not saying anything and not even noticing that he was present. It was a surprise when he was attacked. He had never been hit by the accused before and this whole event was completely unexpected. [ 168 ] Finally, Mr.

Kingwatsiak admitted that when he gave his statement to the police shortly after the incident he was asked the following question and gave the following answer: Question: “what happened last night to set him off, to cause him to stab you in the face”? Answer: “evil spirit I guess”. B. Etidloi Adla [ 169 ] Sometime in mid-August of 2010, Etidloi Adla, Mappaluk’s older brother, was with several people on the beach preparing to go fishing. The group included Kumaarjuk Pii, Kooyoo Peter, the accused, and Manu Peter. During preparation, Mappaluk came down to the beach. Mr.

Adla testified that when he got off the boat to go and talk to his brother, he heard the accused say to Manu Peter that he was going to shoot Mappaluk one day. It was said in a joking tone and he did not appear to be angry at all when he said it. [ 170 ] Mapp did not come with them on their fishing trip. [ 171 ] Later that same day Etidloi, the accused, and Manu were at a campsite shooting at rocks sticking out of the water. Mr. Adla heard the accused sort of whisper to Manu Peter, saying that he was going to shoot at a rock and pretend it was Mappaluk’s head. Peter

Kingwatsiak then took about five shots at the rock. [ 172 ] Etidloi testified that he was sort of shocked, but he didn’t believe the accused would do that. [ 173 ] He does not recall anyone drinking or taking drugs that day. [ 174 ] Mr. Adla testified that prior to Mappaluk’s death, he knew that there was some jealousy going on between Mapp and the accused over Geena Rose. At the time, he was working with youth in the community and rumors of the accused’s animus towards Mapp were spreading like wildfire throughout the community. [ 175 ] Mr. Adla and the accused used to hunt together.

Etidloi told the Court that the accused was just learning and when asked if he was a good shot, responded that he was typical and that more often than not he would miss his target, but by a very slight distance. [ 176 ] In cross-examination, it became clear that Mr. Adla gave two statements to the police. During the first statement following the death of his brother, he did not say anything about the time when the accused was shooting at rocks and pretending they were Mapp’s head.

He waited over a year to tell the police about this incident with the rocks. [ 177 ] The witness explained that, although he remembered the rock incident shortly after giving his first statement, he did not contact the police. He testified that he was sure the police would be calling him again so he saved the information for the second interview with the authorities.

He went on to say that he did not want to make any old wounds fresh again by contacting the police himself. [ 178 ] Etidloi Adla did not hide the fact that he wants the accused to be convicted of murdering his brother, but said he would not lie to make that happen. C. Tytoosie Tunnillie [ 179 ] Mr. Tunnillie supplied information which is included in the admissions that form part of the evidence in this trial. I will not repeat things which were, for the most part, confirmed by his testimony at trial. This witness did, however, provide some additional facts, which are as follows. [ 180 ] When Mr.

Tunnillie saw the accused that morning he was crying. He had a “smirky” look and an unusually red face. He could tell that the accused had been sniffing gasoline. Tytoosie testified that over two hours after he arrived at the Tunnillie house and, while he was talking to Tytoosie and his father, this witness smelled gasoline on the accused. [ 181 ] Prior to this, the accused had told Tytoosie that he had been blacking out from sniffing gasoline.

He said that he was “sniffed out” when he stabbed Manu in the head and that he suddenly woke up while he was trying to stab him. [ 182 ] The accused kept saying that he wanted to commit suicide and he was very emotional. [ 183 ] When the witness was demonstrating how the accused told him he was holding the rifle when he killed Mappaluk, he did so as if the accused was right handed. At that time, the accused was not crying. [ 184 ] Mr. Tytoosie said that the accused told him he had killed Mapp, but that it was not on purpose.

He remembers the accused saying that he shot Mappulak, but it was by accident. [ 185 ] Tytoosie admitted in cross-examination that while the accused was at his house that morning he did not talk like he was drunk.

They went out for a smoke a few times that morning. Each time they did this the accused had no difficulty putting his shoes on or taking them off. [ 186 ] When giving his answers, Mr.

Tytoosie backtracked a lot and at times he was very evasive. [ 187 ] When faced with an inconsistency between the statement he gave to the police shortly after the incident and his testimony, he told the Court that he was drinking a lot back then and his memory was better now. [ 188 ] In cross-examination, it was put to Tytoosie that when he gave his statement to the police he heard Peter Kingwatsiak say that he had just shot the one he hated the most. Tytoosie then said that he had lied to the police.

He followed this by saying that he couldn’t remember if he said that to the police or not and finally Tytoosie admitted that at some point during the morning of the fatal shot, the accused did say something about hating Mappaluk. [ 189 ] Many of Mr. Tytoosie’s answers to important questions were inconsistent with each other.

For instance, at one point he said that he could not understand what the accused was saying and later he said that the accused was talking normally. [ 190 ] He first said the smell of gasoline coming from the accused was strong and later said that it was not that strong. [ 191 ] It appeared to the Court that he was trying his best to minimize what happened that morning and to support his friend, Peter Kingwatsiak, as much as possible. His overall credibility suffered as a consequence. V. EVIDENCE FROM THE ACCUSED [ 192 ] The accused testified at length during his trial. [ 193 ] As is Mr.

Kingwatsiak’s right, he chose to testify in Inuktitut using the services of qualified, experienced, and professional court interpreters. [ 194 ] His in-chief examination took place Wednesday morning and afternoon while his cross-examination took most of Thursday and all of Friday to complete. [ 195 ] Shortly after commencing his testimony, an issue arose with respect to the quality of

interpretation. The accused advised the Court that he was having some difficulty agreeing to the words the interpreters were using when translating to the Court in English what he had just said in Inuktitut. [ 196 ] Counsel and the accused submitted that the difficulty was likely due to differences in dialect.

It was resolved, on consent, that replacing one of the interpreters with another who was more experienced with the Cape Dorset dialect was an adequate solution. [ 197 ] The trial then proceeded, using consecutive translation throughout. [ 198 ] The issue of appropriate translation was brought to the attention of the Court by the accused a number of times. In fact, the Court directed the accused to interrupt the proceedings any time he felt there was an issue in this regard. He was not shy to do so. [ 199 ] At one point, he felt that the Crown should ask the question in English without

interpretation and then he could answer in Inuktitut with

interpretation. This proved not to be particularly helpful as the accused continued to ask for translation, noticeably when the question related to an important issue.

[ 200 ] I find that the accused testified in a way that leads this Court to believe that he was using his command of both Inuktitut and English to delay many of the responses he gave. [ 201 ] On numerous occasions, particularly on important issues, this Court finds that he deliberately slowed down the proceedings so that he could carefully consider what his answer to the question should be, rather than answering in a forthright and non-evasive manner. [ 202 ] This is not reflected accurately in the transcripts of his evidence. The written word does nothing to depict demeanour or tone.

It does not reflect long pauses between questions. It does not depict frustration or anger. Extreme emotions are not recognizable from the words on the paper. [ 203 ] This is a case where the accused’s testimony at trial was important, particularly on the ultimate issue of whether Mr.

Kingwatsiak had the capacity to form the intent for murder. [ 204 ] Accordingly, the way the accused answered the questions posed to him is part of this Court’s overall assessment. [ 205 ] I have no difficulty in finding that the accused was extremely evasive and inconsistent throughout his lengthy cross-examination. [ 206 ] At one point, he told the Court that he was not in love with Geena Rose and at another he admitted that in September of 2010, he was in love with her. [ 207 ] At times he insisted that he was not jealous of Geena Rose and Mapp and at other times he admitted to the Court that he did not like the fact that they were together. [ 208 ] In-chief, the accused testified as to his background.

I do not believe it is necessary to repeat everything he told the Court. Suffice it to say that his childhood was difficult. He lost two siblings: an older brother to a hunting accident and his sister to suicide. He was sexually assaulted by an uncle and he was badly injured when he was 14 or 15 due to his use of inhalants. On that occasion he was sniffing gas and his clothes caught on fire.

He suffered burns to about 45% of his body; mostly his feet and legs which required treatment in the south for three months. [ 209 ] He tried to hang himself at least once, but possibly twice, prior to the burn injuries. [ 210 ] The accused described himself in September of 2010, as a hunter and a student.

At the time of his arrest, he had completed Grade 10 and was starting Grade 11. [ 211 ] He can’t remember when he started sniffing gas, but he told the Court it was sometime before he started smoking marijuana which occurred when he was approximately 12 years old. [ 212 ] He told his lawyer during the trial that in August of 2010, he would sniff gasoline whenever he went camping with his grandfathers.

They went out probably every week so he estimated that he was sniffing every week. [ 213 ] The accused said that on at least one occasion in August, he was sniffing with his relative, Manu Peter. [ 214 ] The accused denied Etidloi Adla’s account of him firing a gun at rocks in August while pretending that he was firing at Mappaluk’s head.

[ 215 ] When talking about Geena Rose, even his evidence in chief was inconsistent. He testified that Geena Rose was his girlfriend prior to September of 2010. They were not going out on September 18, 2010, but on that date he knew Geena and Mapp were friends. Mappaluk was 23 and Geena Rose was 15. [ 216 ] He knew that Geena Rose and Mapp were together during the Saturday night dance in Cape Dorset.

After the dance he saw them walking together with other friends. [ 217 ] When asked how that made him feel, he said that he was not jealous or hurt, but he did not like the fact that they were together. [ 218 ] He admitted that he pointed the gun at Mapp the morning before his death in front of Geena Rose. He told the Court that the gun was not loaded and that he did not intend to shoot Mappaluk. [ 219 ] He said the bullets to the gun were in his pocket.

The accused later conceded in cross-examination that the gun was in fact loaded. [ 220 ] He told us that he wanted to be closer to Geena Rose and he thought she would ask him why he was pointing the gun at Mappaluk. He tried again to convince her to go out with him, but she refused. [ 221 ] Later that same day, in the evening, he saw Geena Rose on her way to church. He asked her to go for a walk with him and she refused. He asked her to give him back the bullets for his gun, but she would not do so.

He testified that he did not want the bullets back so that he could kill Mapp, but that he wanted to return them to the place where he found them. His testimony on this point was far from convincing. [ 222 ] When talking about his feelings for Geena Rose, he was extremely resistant and evasive. His evidence was extremely inconsistent. At one point, he said that he was just trying to have a relationship with her, but it wasn’t the most important thing in his life. He denied several times that he was jealous or hurt because of the situation he found himself in.

He minimized his feelings for Geena Rose throughout his testimony. When asked, he could not adequately explain why he had the words “Geena Rose. My one and only” written in ink on his arm at the time of his arrest. [ 223 ] On Sunday evening, the accused testified that Geena Rose was wearing makeup and she looked different. The way she looked caused him to believe that Geena Rose and Mappaluk had, had sex. He told his lawyer, when asked how that made him feel, that he didn’t feel anything about it. [ 224 ] Later on Sunday night, he was speaking to Geena Rose online.

He again asked her to go out with him and to give him another chance. She again refused. He told the Court that he knew why she wouldn’t go out with him and it was because he had pointed a gun at Mapp, although she never said that to him at any time. [ 225 ] On Monday morning he got up early, around 3:00 or 3:30 a.m., and went to the porch of his father’s house to smoke a cigarette. He then went to his bedroom and was lying in bed for about ten minutes before getting up and leaving. [ 226 ] He said that he went to the beach, down to his grandfather’s boat.

He was sniffing gas from inside the boat, directly from the fuel tank up to a point where he says he didn’t feel anything, he became numb. He could not say how many times he sniffed, but he said that he sniffed as hard as he could. The next thing he remembers is that he wasn’t in the boat any longer. When he became aware of this, he returned to the boat and continued to sniff. When he was done he closed the tank. He was feeling high. [ 227 ] When asked by his lawyer why he was sniffing so much gasoline that morning he said because he was thinking about the anniversary of his sister’s death.

He said he was sad because they were very close and he sniffed every September. When the Crown explored his answer, it was obvious to the Court that he was being less than truthful. He told the Crown a number of times that he can’t say if his sniffing that morning had anything to do with Geena Rose.

[ 228 ] He took a .22 calibre gun from the boat when he left. When asked why he took the gun he said, “I took it but I wasn’t thinking about the reasons why I took it.” {Transcript, p 324}. [ 229 ] During the early morning hours of September 20, 2010, the accused admitted that he was walking around the community with three guns: a .22 calibre rifle, a .303 calibre rifle, and a shotgun.

At some point he left the shotgun somewhere on the mountain, but he did not know where because it was dark. [ 230 ] When asked why he had the three guns that night, he said he could not tell the Court why. [ 231 ] After he left the boat he went to his aunt’s place. He arrived, but did not enter. He waited around for a short period of time before leaving. He next found himself at his uncle’s house. The accused saw that there were bikes (described commonly as Hondas) outside Manu Kingwatsiak’s house so he went to one, removed the cap from the gas tank, and again started to sniff gasoline.

After he sniffed out of this gas tank, he told his lawyer that he doesn’t remember anything. [ 232 ] He then said that while he was sniffing gas from the Honda, he thought he saw his uncle watching him from the window in his home. He thought that Manu would mention it to his parents which is something he did not want to happen. [ 233 ] Again his testimony is contradictory.

The accused said that after he saw Manu in the window, he continued to sniff from the Honda’s tank and the next thing he remembers is leaving his uncle’s place. [ 234 ] He then said that he was blacked out after sniffing from his uncle’s Honda and the next thing he remembers is his uncle talking to him and trying to take the knife away from him. [ 235 ] The accused told the Court that he “woke up” at his uncle’s house and when he became aware of what he was doing, he apologized and left. [ 236 ] After he left, he started looking for the .22 calibre rifle, which he had brought with him.

He found it next to Mannu’s house where he had left it. [ 237 ] He was intending to go home, but on the way he saw a ski-doo and so he went to the machine, opened up the gas tank, and sniffed some more. [ 238 ] The accused told the Court that he was sniffing differently from the snow machine. This time he would breathe in the gas, hold it in his lungs until he couldn’t hold it anymore, and then he would breathe it out. The high was more intense. [ 239 ] After this period of sniffing the accused blacked out.

He told his lawyer that he doesn’t remember anything further until he was down south and he found out what he had done. In the same response, he also said that the next thing he remembered after sniffing the gasoline was leaving Mappaluk’s house. [ 240 ] After leaving Mapp’s house he walked by the graveyard.

He then went to Tytoosie Tunnillie’s house. [ 241 ] In-chief, the accused said that he doesn’t know if he told Tytoosie that he had shot someone or not, whereas later he admits that not only did he tell him that he shot Mappaluk Adla, but he showed his friend how he did it. [ 242 ] During cross-examination, the accused went from telling the Court that he did not remember what he did at Mappaluk’s house to giving a detailed description of exactly what occurred during the early morning hours of September 20, 2010.

[ 243 ] The accused admitted that he told one of the psychiatrists that there were five bullets in the gun he used to shoot Mr. Adla and that he only had to use one of them. VI. POSITION OF THE PARTIES A. Crown’s position [ 244 ] The Crown’s position is that there is ample evidence before the Court that Peter Kingwatsiak planned to kill his step-brother, he knew what he was doing when he pulled the trigger, his actions were deliberate, and he accomplished what he set out to do that morning. The accused therefore should be convicted of first degree murder. B.

Defence’s position [ 245 ] The Defence’s position is that the accused lacked the specific intent needed to find him guilty of murder due to both his level of intoxication and also because he was suffering from extreme emotions at the time of the offence. The accused, therefore, should be convicted of manslaughter. [ 246 ] If this Court disagrees and finds that Peter Kingwatsiak did have the specific intent necessary for murder, the murder lacked the essential elements of planning and deliberation which would be necessary to find the accused guilty of first degree murder.

This would result in a conviction for second degree murder. VII. ANALYSIS A. Murder (i). Did Peter Kingwatsiak have the capacity to form the intent required for murder when he shot and killed Mappaluk Adla on September 20, 2010? [ 247 ] It is the Crown’s job to prove beyond a reasonable doubt the following: 1. That Peter Kingwatsiak caused Mappaluk Adla’s death; 2. That Peter Kingwatsiak caused Mappaluk Adla’s death unlawfully; and 3. That Peter Kingwatsiak had the state of mind required for murder. [ 248 ] Questions one and two are admitted for purposes of this case. The accused caused Mr.

Adla’s death and he did so unlawfully. The question in this trial is whether or not Peter Kingwatsiak had the state of mind required for murder. [ 249 ] As I said before, this offence requires proof of a particular state of mind. For an unlawful killing to be murder, the Crown must prove beyond a reasonable doubt either that the accused meant to kill Mappaluk Adla in the early morning hours of September 20, 2010, or that he meant to cause bodily harm that the accused knew was so dangerous and so serious that it would likely kill Mr.

Adla and he proceeded despite his knowledge that Mappaluk Adla would likely die as a result. The Crown does not have to prove both. One is enough. [ 250 ] Common sense would tell you that when someone walks into a person’s home in the early morning hours, points a loaded .22 calibre rifle at that person’s forehead, and pulls the trigger at close range, he does so with the intention to kill. [ 251 ] The accused’s actions are only part of what must be considered.

[ 252 ] The Court is also required to consider whether or not the accused knew what he was doing when he fired that fatal shot. [ 253 ] The Court must consider all of the evidence. It must look to what he did or did not do, how he did or did not do it, and what he said or did not say. [ 254 ] The Court must look at the accused’s words and conduct before, at the time, and after the unlawful act that caused Mr. Adla’s death. [ 255 ] The opinions of the experts who testified during this trial must also be carefully considered to determine Mr.

Kingwatsiak’s state of mind at the time of the killing. [ 256 ] Finally, in considering all the evidence, the Court is obligated to use its good common sense. [ 257 ] For the purposes of my decision, I will refer to those facts which most inform my overall conclusion. [ 258 ] It is clear that Peter Kingwatsiak was not happy with Mappaluk Adla at the time of his death. We know this because he told several of his friends that he was going to kill Mapp and why. [ 259 ] I find as a fact that the accused was very jealous of the deceased during the months of August and September of 2010.

He was both jealous and later angry because the accused thought that Mappaluk was interested in, and taking advantage of, his one and only love, Geena Rose Lampron. [ 260 ] We know that the morning before the accused pulled the trigger that ended Mapp’s life, he pointed a loaded .303 rifle at him and was stopped from pulling the trigger by the very girl he was fixated on. [ 261 ] We know that when he pointed the loaded rifle at Mappaluk and was interrupted by Geena Rose, the accused told her he was going to kill Mapp and that he had to do it. [ 262 ] We know that within the 24 hours leading up to Mr.

Adla’s death, Geena Rose refused to go out with Peter on at least four occasions. [ 263 ] There is no doubt that the accused was distressed on September 20, 2010. We know that he hardly slept Sunday night and his evidence is that he decided somewhere around 3:00 or 3:30 a.m. on Monday morning to sniff gasoline. There is no evidence of sniffing prior to that time. [ 264 ] The accused says he sniffed gas because he was missing his sister who had committed suicide years before during the month of September.

Although this may have been a contributing factor, the Court finds that there is ample evidence to conclude that he was more upset because he was convinced during a conversation with Geena Rose on Sunday evening that Mapp and Geena Rose had been sexually intimate with each other. [ 265 ] The accused’s last rejection from Geena Rose was somewhere around 11:00 p.m.

Sunday evening. [ 266 ] After sniffing gas at the boat, the accused was walking around Cape Dorset with three weapons: the .22 calibre rifle which was used in the offence before the Court, a .303 calibre rifle, and a shotgun. [ 267 ] When asked why he was walking around with 3 guns, he had no explanation. In fact, he said he couldn’t tell the court why.

[ 268 ] He next sniffed gasoline at his uncle’s house. Manu Kingwatsiak and the accused testified as to what happened there. [ 269 ] I find for purposes of my decision today that the accused’s level of intoxication at the time he was at Manu Kingwatsiak’s residence was greater than at the time he was at Mappaluk Adla’s residence. [ 270 ] I am convinced by the evidence provided by the witnesses and the experts in this case together with the evidence from the accused and Manu Kingwatsiak surrounding this event. [ 271 ] The accused’s testimony is that he “woke up” while he was stabbing his uncle. [ 272 ] Although his level of intoxication may have played a

part in his state of mind at the time he attacked Manu Kingwatsiak, his actions and conduct following this event appear to be those of someone who knew what he was doing when he went into the Adla home. [ 273 ] Immediately after the attack on his uncle, the accused had the presence of mind to look for and to find the .22 calibre rifle which he picked up and took with him to the Adla residence. [ 274 ] I find that the accused’s level of intoxication following the attack on Manu Kingwatsiak had been significantly reduced by the time he shot and killed the deceased. [ 275 ] I do this for a number of reasons. [ 276 ] All of the experts in this case have based their conclusions on the accused’s self-report with respect to his inhalant use. [ 277 ] As I have already indicated, I find the accused to be a less than credible witness. [ 278 ] On the issue of intoxication at the time of the fatal shooting and before, he told the experts different things. [ 279 ] The accused told Dr.

Rosenbloom that he started sniffing gas at age 18. He sniffed it once a day. In the hours leading up to the death of Mr. Adla, he had sniffed gas on three occasions. The first time was prior to the incident when he pointed the gun at Mr. Adla and was stopped by Geena Rose. This was the morning before the fatal shooting. [ 280 ] He told Dr. Chaimowitz that he started sniffing gas when he was 12 and he used inhalants no more than four times per year. [ 281 ] He went on to say that just prior to Mr.

Adla’s death he had been sniffing gas four or five times to the point of losing consciousness. [ 282 ] The accused told Dr. Klassen that he sniffed a bit when he was much younger, age 12 or less. He sniffed gas once when he was 16 and then he sniffed gasoline in the early morning hours of September 20, 2010. He estimated about eight episodes of inhalant use in total during his life. [ 283 ] The accused’s testimony in-chief when asked about his inhalant use, was that he sniffed every week during the month of August when he went out camping.

[ 284 ] There is no evidence that the accused smelled of gasoline during any of his interactions with people in Cape Dorset prior to the death of Mappaluk. [ 285 ] After the shooting, the accused interacted with a number of people. [ 286 ] There is only one person who says he smelled gasoline on the accused. Tytoosie Tunnillie testified that he smelled gas on the accused after the accused told him he was blacked out from sniffing when he attacked his uncle. Mr. Tunnillie says he smelled gas when the accused, he, and Tytoosie’s father were talking together.

This was at least two hours after the accused entered the Tunnillie home. [ 287 ] There is no evidence from anyone that the accused’s speech was anything other than normal. He did not slur his words. He did not act like he was drunk. The evidence of intoxication is not of a significant nature. It does not leave this Court with a reasonable doubt with respect to the accused’s intentions at the time he delivered the fatal shot. [ 288 ] Further, there is very little, if any, evidence of intoxication from those who interacted with him at the Tunnillie residence immediately following the death of Mr.

Adla. [ 289 ] The accused took his shoes off when he entered Tytoosie’s house and he put them back on when he went to the porch to smoke. He did this a few times that morning. There is no evidence that he had any difficulty at any time maintaining his balance. Even Manu Kingwatsiak observed Peter immediately after the attack on him to be walking like any normal person in the direction of the Adla residence. [ 290 ] Although the accused was emotional and suicidal at the Tunnillie home, he was described throughout as appearing to be sober.

He was not in a panic at any time and there was no evidence of bizarre behaviour. [ 291 ] There was no evidence of disorganization at the crime scene. The accused walked into the Adla home and fired one shot at close range to the head of Mr. Adla causing his death. There was no sign of a struggle. [ 292 ] For all of these reasons, this Court finds beyond a reasonable doubt that Peter Kingwatsiak not only had the capacity to form the intent required for murder, but he also intended his actions when he shot and killed Mappaluk Adla on September 20, 2010. B. Planning and deliberation (i).

Was the murder of Mappaluk Adla both planned and deliberate? [ 293 ] Not every murder is first degree murder. In order to convict, the Crown must prove beyond a reasonable doubt that the murder was both planned and deliberate. [ 294 ] The words “planned” and “deliberate” mean different things. [ 295 ] According to author David Watt, “Planned” is a word that we often use when talking to other people… [It] means a calculated scheme or design that has been carefully thought out”. The consequences of it have been thought over… and sized up.

The plan does not have to be either complicated or sensible. […] “Deliberate” is not a word that we often use when speaking to other people. It means “considered, not impulsive”, “carefully thought out, not hasty or rash”, “slow in deciding”, “cautious” .

[ 296 ] A deliberate act is one where the person has taken time to weigh the advantages and disadvantages of the act he or she is about to commit.

That deliberation must take place before the act of murder. [ 297 ] Once again, the Court must look at what the accused did or did not do, how he did or did not do it, and what he said or did not say. [ 298 ] The effect of any real or imagined provoking words or conduct from others that may have affected his state of mind is important, together with the accused’s overall condition before, during, and after the offence. [ 299 ] I will refer to portions of the evidence that most impact on my overall decision. [ 300 ] The findings of fact in terms of whether or not the accused had the requisite intent for murder contribute to, but are not decisive as to whether or not the murder was planned and deliberate. [ 301 ] Intoxication can raise a reasonable doubt regarding the planning and deliberation required for first degree murder, even if it leaves no doubt regarding the specific intent for murder. [ 302 ] The accused maintains that he did not mean to kill Mappaluk Adla.

I find that this evidence is neither credible nor reliable. At one point when the accused was testifying he said that he did not remember what happened at the Adla home and yet shortly after the event, the accused not only tells his friend Tytoosie what he did and why, but he demonstrates for him exactly how he was holding the gun when he pulled the trigger. [ 303 ] The accused’s testimony throughout the trial was varied and inconsistent both internally and externally.

At one point, the accused doesn’t remember anything and at another, he remembers everything. [ 304 ] There is no evidence of confusion on the part of the accused from any of the witnesses who interacted with him after the fatal shooting. [ 305 ] I find that the accused was both jealous of and angry with the deceased throughout August and September of 2010. [ 306 ] Although the accused denies it, I found the evidence of Etidloi Adla to be both credible and reliable. This is the evidence that relates to a time in August of 2010, when the accused told his friend Manu Peter that h

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