R. v. Salomonie, 2016 NUCJ 10

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Salomonie , 2016 NUCJ 10 Date: 20160405 Docket: 08-11-318 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Jeffrey Salomonie ________________________________________________________________________ Before: The Honourable Mr. Justice Sharkey Counsel (Crown): D. Garson; B. McLaren Counsel (Accused): J. Morton Location Heard: Iqaluit, Nunavut Date Heard: February 1-10, 2016 Matters: Criminal Code , s. 229; s. 231 REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication)

Table of Contents REASONS FOR JUDGMENT (Delivered Orally) 1 I. INTRODUCTION .. 3 A. Mr. Salomonie’s arraignment 3 B. The delay in getting the case to trial 3 II. FACTS .. 5 A. May 18-24, 2009 . 5 III. EVIDENCE .. 6 A. Mr. Salomonie’s June 4, 2009, police interview .. 6 B. Mr. Salomonie’s June 6-7, 2011, police interview .. 8 C. The forensic evidence . 11 (i). The injuries and cause of death .. 11 (ii). Other forensic findings . 15 D. Jeffrey’s testimony . 17 (i). Testimony in-chief 17 E. Jeffrey’s cross-examination testimony . 22 IV. THE LAW ... 28 A. Proof of murder 28 B. Intoxication and manslaughter 30 C.

First degree murder and constructive first degree murder 32 V. POSITIONS OF THE PARTIES .. 35 A. The Crown .. 35 B. The Defence . 38 VI. ANALYSIS .. 44 VII. CONCLUSION .. 56 I. INTRODUCTION A. Mr. Salomonie’s arraignment [ 1 ] In May of 2009, nearly seven years ago, Daisy Curley had not been seen or heard of by either her family or her closest friends for several days.

[ 2 ] On May 24, 2009, Ms. Curley was found dead, alone in her home. She was 34 years old. It was obvious she had been badly beaten. [ 3 ] Jeffrey Salomonie is charged with first degree murder in relation to Ms. Curley’s death. He was 42 years old at the time. [ 4 ] Before the start of any criminal trial the person accused of the offence is formally arraigned. The charge is read, the accused is asked if he or she understands the charge, and how they plead to the charge. [ 5 ] At his arraignment, Mr.

Salomonie entered a plea of not guilty to the charge of first degree murder and offered, instead, a plea of guilty to the charge of manslaughter for unlawfully causing Ms. Curley’s death. [ 6 ] However, under our law a court cannot accept such a plea unless the prosecuting authority, the Crown, agrees to such a procedure. In this case the Crown did not consent to the acceptance of Mr. Salomonie’s guilty plea to the offence of manslaughter. Accordingly, the trial in Mr. Salomonie’s case proceeded on the charge of first degree murder. B. The delay in getting the case to trial [ 7 ] Mr.

Salomonie’s trial proceeded before me earlier this month, between February 1 and 10. [ 8 ] There were several reasons why this matter has taken so long to come to trial. Mr. Salomonie was not arrested until 2011, and as the case proceeded through its early preliminary phases in 2012, Mr. Salomonie changed lawyers and retained his current counsel, Mr. Morton. Throughout 2013, a lengthy pre-trial hearing or voir dire was finally completed regarding statements that Mr. Salomonie made to the police in an interview.

On July 4, 2014, I issued a written voir dire judgment that allowed this police interview to be entered into evidence at the trial. Subsequently, Mr. Salomonie’s case was then set to proceed to trial in January 2015. However, shortly before the trial was to start it was discovered that an important piece of forensic evidence needed clarification. Understandably, counsel for both Crown and accused were reluctant to go ahead with the trial without this clarification.

Accordingly, and pending further scientific inquiry, the trial was rescheduled to proceed in February, 2016. [ 9 ] This case was presented and argued before me by some of the most senior members of the Nunavut criminal bar. Messrs. Garson and McLaren provided able submissions on behalf of the Crown, and Mr. Morton on behalf of the accused. The trial evidence, in significant measure, was presented by way of Agreed Facts and other stipulations made between the Crown and Defence.

As a result, the trial was completed in seamless fashion within about ten days. [ 10 ] I would accordingly be remiss if I did not pay tribute at the outset to the skill, sensitivity, and acumen of the lawyers in this case. Mr. Salomonie was ably defended and, at the same time, the Curley family was spared the stress of an unnecessarily lengthy and prolonged trial. [ 11 ] Throughout these proceedings, counsel have at times made reference to Mr. Salomonie simply as “Jeffrey” and to the deceased, Ms.

Curley, as “Daisy.” Similarly, counsel have often referenced House 1631 as “Daisy’s house,” when in fact it was home to Daisy, her mother, and other family members. For the sake of clarity, I will, for the most part, make similar references.

II. FACTS A. May 18-24, 2009 [ 12 ] On Monday, May 18, 2009, Jeffrey flew from Cape Dorset to Iqaluit in order to attend a medical appointment. On his arrival he checked into the Frobisher Inn where the Storehouse Bar and Grill [Storehouse] is part of the hotel complex. [ 13 ] On Tuesday, May 19, Jeffrey attended his medical appointment, and later in the evening went to the Storehouse where he met up with extended family and friends. And it was in the Storehouse on the evening of May 19 that he was introduced to Daisy.

Jeffrey and Daisy spent much of the evening on the second level of the bar, talking alone and drinking. Daisy told Jeffrey that she was staying at home alone and Jeffrey told Daisy that he was alone at the hotel. [ 14 ] Jeffrey and Daisy were together until the Storehouse closed at 1:00 a.m. on the morning of Wednesday, May 20. After the Storehouse closed, the two of them went to Jeffrey’s hotel room, where he had a 60 ounce bottle of vodka. They did not, however, stay at the room for very long. They each had a drink or two, and then headed off by taxi to Daisy’s house. Jeffrey brought the vodka along as well.

Once at Daisy’s house they listened to some music, perhaps danced a little, and drank more vodka. They were alone. [ 15 ] At some point after they arrived at the house, Jeffrey brutally beat Daisy, causing her death. In addition, at some point, while they were at the house, Jeffrey had sexual intercourse with Daisy. [ 16 ] Jeffrey caused Daisy’s death by striking her repeatedly, both with his fists and with a hockey stick that he had picked up somewhere in the house. Jeffrey pounded Daisy with his fists on her head and face. He also struck her repeatedly on the head and face with the hockey stick.

He also hit her repeatedly on the back and upper torso with the stick. Jeffrey hit Daisy so hard with this hockey stick that it broke into three pieces, and the blade of the stick was soaked with Daisy’s blood. [ 17 ] At some point after this assault, Jeffrey left the house. Before leaving, however, he went to the kitchen and wiped the floor with a tablecloth in an attempt to remove or wipe up his bloody footprints. [ 18 ] After Jeffrey left Daisy’s house he walked back to his hotel, packed up his belongings, and checked out.

Later that same morning, he boarded his return flight to Cape Dorset. [ 19 ] Roughly four days later, on Saturday, May 23, Daisy’s brother, Steven Curley, contacted the Royal Canadian Mounted Police [R.C.M.P.] because he was worried he had not heard from his sister for several days. The police went to Daisy’s house and knocked on the door, but no one answered. The police then left. [ 20 ] The next day, on Sunday, May 24, both Billy and Steven Curley gained entry to the house. They found their sister Daisy laying on the living room floor.

She was wearing a white long sleeved shirt, but otherwise was naked from the waist down. She was deceased. The brothers then called the R.C.M.P. [ 21 ] The police arrived and found Daisy in the position that her brothers had found her. They then secured the scene of the crime in order to allow the forensic identification team and the Major Crime Unit [M.C.U.] to take photographs, collect blood samples and fingerprint impressions, and seize various items from the home as evidence. III. EVIDENCE A. Mr. Salomonie’s June 4, 2009, police interview

[ 22 ] Jeffrey Salomonie was questioned on two separate occasions. [ 23 ] The first interview took place in the early stages of the police investigation in the month or so after Daisy’s death. On June 4, 2009, Constables Joseph (Joe) Baines and Denis Lambe of the Iqaluit R.C.M.P. M.C.U. travelled to Cape Dorset and spoke with Jeffrey. He was not at that time a main suspect in the case, but simply in police parlance a “person of interest.” [ 24 ] In that June, 2009, interview Jeffrey freely admitted to spending the night with Daisy at her place.

He said that he brought the 60 ounce bottle of vodka with him to the house, that he and Daisy were drinking, playing music and kissing, and that they both had their clothes on. Then he said, “[w]hen I was pouring my second glass, that’s when I blacked out.” [ Interview Transcript: Trial Exhibit P-1 , p. 16; also: p. 6, l, 215; p.7, l, 277; p. 9, l, 352]. [ 25 ] Jeffrey told the police investigators he could not remember whether he had sexual intercourse with Daisy before he passed out. He said this was something he was not sure about.

He said that when he woke up, it was around 5:00 a.m., and he was on the couch with Daisy asleep beside him. He said they were both fully clothed and that Daisy was wearing a white shirt and jeans. [ 26 ] Jeffrey said that after he woke up, he then woke Daisy up to tell her he had to get back to Cape Dorset. He said he then simply left the house and walked to the Frobisher Inn , and that when he got to the hotel the clock in his room showed the time as 5:37 a.m.

He said that he caught his flight back to Cape Dorset later in the morning. [ 27 ] During this June 4, 2009, Cape Dorset interview, Jeffrey also told the investigators on several occasions that when he left Daisy’s house, Daisy was fine. He told them that he had nothing to do with harming Daisy or causing her death. [ 28 ] Jeffrey said the reason he woke up was because of a loud noise or bang, which he said was like the sound of a door slamming shut. He told the investigators that when he left the house the front door was unlocked, and that neither he nor Daisy had locked it the previous night.

He said that when he left the house this same front door was unlocked, and that after he left he decided to go back inside to call a cab, but that the door was locked. [ 29 ] Jeffrey said that “I woke her up and left or tried to go back, she already locked the door.” He also said, “all I remember […] we were only two when I woke up with a bang and she was all right.

She woke up.” [ Interview Transcript: Trial Exhibit P-1, pp. 9, l, 353- 54, 20, l, 844-45]. [ 30 ] Jeffrey said he thought both he and Daisy were still drunk when they woke up, and so Constable Lambe asked Jeffrey if it was possible that someone else other than Daisy may have locked the door. In response, Jeffrey said, “I didn’t see anybody but her. I didn’t even check around or look around at all when I woke up.” [ Interview Transcript: Trial Exhibit P-1, p. 21, l, 870-71]. [ 31 ] Constable Lambe asked Jeffrey, “[d]id somebody hit her with something?” In response, Jeffrey said, “I don’t know.

She was completely fine. No marks, no bruises, no blood when I woke her up. I wasn’t there when she was being whatever was being done to her.” [Inteview transcript: Jeffrey Salomonie, p. 47, lines 2037-2039 ]. [ 32 ] As the interview concluded, Constable Lambe asked Jeffrey, “Did you kill Daisy Curley?” In response Jeffrey said “[n]o. I have no reason to…there’s no reason to kill anybody. No one deserves to die and nothing like that.

No one deserves to die like that.” [ Interview Transcript: Trial Exhibit P-1, p. 54, l, 2324-31]. [ 33 ] Jeffrey agreed to provide, and did provide, a DNA sample to the visiting M.C.U. investigators before they left Cape Dorset. B. Mr. Salomonie’s June 6-7, 2011, police interview [ 34 ] The police investigation into Daisy’s death was a lengthy and exhaustive process. Eventually, the police focus turned once again to

Jeffrey, this time as the main suspect in the case. [ 35 ] By the summer of 2011, the police had grounds to believe that Jeffrey was the actual perpetrator of the crime. On June 6, 2011, M.C.U. investigators returned to Cape Dorset where they arrested Jeffrey Salomonie and transported him to Iqaluit. Jeffrey was then interviewed again.

This second interview was a comprehensive interrogation session, which continued over a twelve hour period with some breaks. [ 36 ] Initially, and for several hours into the interview, Jeffrey lied to the investigators and said that he was not in Iqaluit at all during May of 2009, when Daisy was killed. He maintained that he had come to Iqaluit for his medical appointment in April of 2009, and not in May. Eventually, when confronted numerous times with the obvious falsehood of this position, Jeffrey acknowledged that he had come to Iqaluit in May of 2009.

As the interview continued, Jeffrey acknowledged as well as that he had stayed over with Daisy at her house. However, he insisted repeatedly that when he left Daisy’s place she was fine, and not injured. [ 37 ] It was not until the very end of the interview, during the final two hours, that Jeffrey confessed, or at least partially confessed, to assaulting Daisy and to having sexual intercourse with her. [ 38 ] The R.C.M.P. investigator who conducted this last portion of the June, 2011, interview was Staff Sergeant Tom Townsend.

There is little narrative of events by Jeffrey about what happened between himself and Daisy, but Jeffrey’s choice of words and descriptive phraseology in talking with Staff Sergeant Townsend are certainly of his own making. [ 39 ] Jeffrey told Staff Sergeant Townsend that when he met Daisy at the Storehouse she was already high. He said he bought beer for Daisy and that he drank a total of eight cans of beer himself that night, including four or five cans that he consumed with Daisy after she joined him.

He said they each had one drink or shot of vodka at his hotel room after the Storehouse closed and that they then went to Daisy’s place by taxi and that she unlocked the door to the house. [ 40 ] He said he remembered pouring drinks at Daisy’s, and dancing in the kitchen with her. He said they were kissing and that he was touching her over her clothes. He said he had no reason to believe that Daisy was upset with him at all. [ 41 ] Jeffrey said that the last memory he had of seeing Daisy before he passed out was when they were facing each other dancing in the kitchen.

He said he remembered “kissing around” and then “when she started turning away I don’t know why. That’s when I started black out.” [ Interview Transcript: Trial Exhibit P-2 ;

part 3, p. 48, l, 11-13]. [ 42 ] Jeffrey told Staff Sergeant Townsend that after passing out, he remembered waking up on the couch and seeing Daisy on the floor completely naked and badly beaten, with her pants on the floor beside her. He said her face was bruised so badly that she was unrecognizable and there was a lot of blood on the floor.

He said, “I saw nothing but blood.” [ Interview Transcript: Trial Exhibit P-2 , 52, l, 24]. [ 43 ] Jeffrey said he panicked when he saw Daisy on the floor because he “never never thought about doing [that] to anybody…cause I never think about doing anything like that.” [ Interview Transcript: Trial Exhibit P-2 , 51, l, 35-36]. [ 44 ] Despite Daisy’s condition and what he called his own state of panic at seeing her, Jeffrey told Staff Sergeant Townsend that he then had sexual intercourse with her. Jeffrey admitted that Daisy was injured or hurt at the time.

He said that she was moaning, but did not say his name ”maybe because she was hurt.” [ Interview Transcript: Trial Exhibit P-2 , 57, l, 24 – 58, l, 5]. [ 45 ] Respecting when precisely it was after he woke up that he had sexual intercourse with Daisy, Jeffrey also gave another, but perhaps closely similar rendition of events.

Staff Sergeant Townsend asked Jeffrey “[s]o, how long do you think you were having sex with her before you saw the blood?” Jeffrey replied by saying “maybe couple of minutes.” [ Interview Transcript: Trial Exhibit P-2 , p. 56, l, 1-2]. [ 46 ] From this exchange it appears that Jeffrey may have been saying that he actually came out of his blackout while having sex with

Daisy, as opposed to first seeing her on the ground in an unrecognizable state and then having sex with her. [ 47 ] However, as the interview progressed Jeffrey was clear in telling Staff Sergeant Townsend that he had sexual intercourse with Daisy after he woke up on the couch, and when he saw that she was lying on the floor. He told Staff Sergeant Townsend how he dropped his pants, and without wearing a condom, penetrated Daisy. He said he was on top of her and facing her at the time, and that he believed he ejaculated inside her.

He said that he had never had sex with Daisy previously, had never been to her house before, and that he had only met her for the first time that night (See Interview Transcript: Trial Exhibit P-2 , pp. 60-61; 101-110). [ 48 ] Staff Sergeant Townsend held back identifying the hockey stick as the murder weapon in the hope that Jeffrey would do so.

But Jeffrey said he thought he only used his fists, and that he could not recall or remember picking anything up in the house to use as a weapon. [e.g., Interview Transcript: Trial Exhibit P-2, p. 113, l, 19 “I don’t remember any object I used.”]. [ 49 ] Staff Sergeant Townsend asked Jeffrey “[w]ell what you think happened to [Daisy] when you saw her?” Jeffrey replied by saying, “I thought I used my fists…that’s what I was thinking because I don’t remember having anything on my hand.” [ Interview Transcript: Trial Exhibit P-2, p. 104, ll, 36-42]. [ 50 ] Jeffrey maintained the position that he could recall no weapon as the interview came to end.

He told Staff Sergeant Townsend, “I have no idea. I have no idea what I struck her with. I thought it was just with my hands. That’s all I believe. I don’t remember having anything else on my hands.” [ Interview Transcript: Trial Exhibit P-2, 127, l, 26-28]. [ 51 ] Jeffrey told Staff Sergeant Townsend that he thinks he was at Daisy’s place for about three or three-and-a-half hours that morning. He said he wiped up his footprints in the kitchen before he left, and cleaned himself up at the same time.

He said that he was cleaning up the footprints because in his panic he thought he needed to get rid of or cover up evidence. [ 52 ] Jeffrey told Staff Sergeant Townsend that he threw one of his blood stained shirts into a waste bin when he got back to the hotel. He said he threw his socks, underwear, and another shirt into the household trash upon his return to Cape Dorset.

He said there was no blood on his jeans so he kept them, and that he finally burned the shoes he had been wearing a month or so after the police first visited him in Cape Dorset in 2009. [ 53 ] He also told Staff Sergeant Townsend that he was suicidal after returning to Cape Dorset. He said that when he heard that police from Iqaluit were arriving to investigate Daisy’s death that he went down to the sea ice with a rifle and only one bullet with the intention of killing himself, but eventually decided against doing so. C. The forensic evidence (i). The injuries and cause of death [ 54 ] Dr.

Joseph Tanguay is the pathologist who conducted the autopsy of Daisy’s body. He testified at the trial and provided a postmortem examination report [ Exhibit P-4 ]. [ 55 ] Dr. Tanguay testified that Daisy died from blood loss as a result of multiple blunt force injuries to her head and face. In simple terms, this means that Daisy was hit so hard that her blood was knocked out of her blood vessels [ Trial Transcript: Dr.

Tanguay , p. 65, l, 4-21]. [ 56 ] The extent of this hemorrhaging or loss of blood is clear from the autopsy photos, which show a massive amount of bruising on the surface as well as under the skin. [ 57 ] Dr. Tanguay also noted in his report that injury to the brain was a possible contributing factor in causing Daisy’s death [ Exhibit P- 4 , p. 18, item 14]. [ 58 ] Dr. Tanguay testified that there were numerous blunt force injuries in the form of cuts, or “lacerations”, and bruises to Daisy’s head

and face. [ 59 ] Dr. Tanguay explained that a laceration is a tearing of the skin, and may be properly characterized as a blunt force injury laceration where the skin is struck with a blunt object that produces such a tearing. [ 60 ] Dr. Tanguay explained that there are two types of lacerations: full thickness lacerations where the laceration extends all the way through the full thickness of the skin, and partial thickness lacerations where the laceration only splits the skin, but does not go all the way through. [ 61 ] Dr.

Tanguay also explained the term “confluent hemorrhaging”, which he told us occurs when extensive bruising from several impacts or blows blends together so that it is hard to tell how many impacts or blows caused the bruising. [ 62 ] Dr. Tanguay’s postmortem report itemizes twenty injuries to Daisy’s face, skull, and neck.

Among these were some seventeen lacerations of varying lengths and depths, including at least seven full thickness lacerations, five partial thickness lacerations, and five other lacerations that were not specified in the report [ Trial Transcript : p. 46, l, 8-5; Exhibit P-4, pp. 8-10]. [ 63 ] Dr.

Tanguay categorized these head injuries as significant, by which he meant that it would require the application of a significant amount of force on the part of the perpetrator to cause such serious injuries. [ 64 ] It is necessary only to highlight, but a few of these injuries in order to illustrate the severity of the beating that was inflicted. For example, the right ear had a full thickness, four centimeter laceration which resulted in near separation of the ear from the head.

On the top of the head there was sub-scalp bruising which means that the pathologist could actually see bruising underneath the skin on top of the skull or scalp. There was also much confluent hemorrhaging on the front portion of Daisy’s neck near her face. [ 65 ] Dr. Tanguay noted that Daisy’s skull itself was not fractured, but he was careful to say also that he would not have been surprised if there had been a skull fracture.

He said that he has seen many cases of serious lacerations to the head which did not fracture the skull, and that the absence of a skull fracture in no way changes his opinion that Daisy’s head injuries were of a significant nature. [ 66 ] Dr. Tanguay noted as well that there was no evidence of strangulation. [ 67 ] In Dr. Tanguay’s opinion, the injuries of the head and face were due to several impacts, such as from punching, kicking, or striking with an instrument [ Exhibit P-4 , item 12 (a)]. [ 68 ] Dr.

Tanguay also found numerous blunt force injuries in the form of bruising to Daisy’s upper torso. [ 69 ] Respecting these injuries to the torso, Dr. Tanguay found what he called “patterned” blunt force injuries. He explained that a patterned injury is one where the blunt force object leaves a mark consistent with the shape of the object itself. For example, a tram-track pattern would indicate that the object was both elongated and rectangular, and that the two outer edges of the object left marks on the skin that run parallel to each other like tram-tracks (or railroad tracks). [ 70 ] Dr.

Tanguay found at least four patterned blunt force injuries to the front and back of Daisy’s torso, the most notable of which was a thirteen centimeter long tram-track bruise on her back. This bruise also showed some confluent hemorrhaging. [ 71 ] Dr. Tanguay was aware that a hockey stick had been found by police at the crime scene. He testified that the tram-track bruises were consistent with having been caused by a broad blow or impact from a hockey stick [ Exhibit P-4 , item 12 (a)]. [ 72 ] Dr.

Tanguay did acknowledge, however, that sometimes the blunt force object used to cause the injury can leave more than one

mark or track with each blow, so that it cannot be said with any precision exactly how many blows were inflicted. [ 73 ] Dr. Tanguay also found bruising on Daisy’s back and on her buttocks, and hemorrhaging on the front of her body around the left and right ribs. [ 74 ] In addition, Dr. Tanguay found an oval shaped fracture to the back of Daisy’s left scapular area or shoulder blade. Essentially, the bone in her shoulder blade was broken. Dr.

Tanguay was of the view that this fracture could have been caused by a forceful impact from the end of a hockey stick or similar shaped object [ Exhibit P-4 , item 12 (b)]. [ 75 ] Dr. Tanguay also found bruising to Daisy’s arms, and a bruise to her right shoulder. He also found a confluent red bruise on the back of Daisy’s left hand, which he considered worthy of particular note. Dr. Tanguay testified that this injury to the left hand stood out as likely a defensive injury.

That is an injury that the doctor said Daisy might have received as she put her hand on her head to prevent being hit [ Trial Transcript : p. 62, l, 5-22]. [ 76 ] Dr. Tanguay also said there were also a few bruises to Daisy’s left and right forearms that could be possible defensive injuries, but that it was difficult to be definitive about this [ Trial Transcript : p. 62, l, 23 – p. 63, l, 2]. [ 77 ] Dr. Tanguay found only four injuries to Daisy’s lower body or legs: an abrasion on her left lower leg, two bruises on her right thigh, and another on the back of her right knee. [ 78 ] Dr.

Tanguay testified that the majority of Daisy’s wounds were to the upper body, namely her head and torso, and that the bulk of these wounds were centered around her head. By contrast, he characterized the bruising to her arms and legs as minor injuries [ Trial Transcript : p. 64, l, 7-20]. [ 79 ] Dr. Tanguay was not able to give any timeline as to how long it took for Daisy to die. He said that, given the nature of the injuries, death would not have been instantaneous, and would have occurred over a period of sometime [ Trial Transcript : p. 65, l, 22 – p. 66, l, 2]. [ 80 ] Dr.

Tanguay also said, however, that given the lack of any extensive defensive injuries it was possible that Daisy may not have been conscious when she received the majority of the blows from her attacker [ Trial Transcript : p. 63, l, 7-26]. [ 81 ] Dr. Tanguay testified it was possible that, except for Daisy’s head injuries, there were some injuries that could have occurred at a point in time before the fatal attack.

But he was careful to note that the injuries which he described in court and itemized in his report showed no signs of prior healing, and in his opinion were recent or fresh injuries [ Trial Transcript : pp. 72, 83-4; P-4, p. 8, item 3]. [ 82 ] Dr. Tanguay also testified that he found no evidence of any injury or other postmortem trauma to Daisy’s genital or anal areas. He could not say, however, whether the absence of an injury to the genital area was any indication that there may have been consensual sexual intercourse.

Conversely, he could not say whether a violent sexual assault was likely, or more likely, to result in or cause an injury to the genital area, or whether if there was sexual penetration after death it was likely to cause any injury or trauma [ Trial Transcript : pp. 67 and 74]. [ 83 ] The toxicology results showed that Daisy’s blood alcohol level was 204 milligrams percent. This is roughly two and one-half times the allowable legal limit for operating a motor vehicle. However, since the blood sample was taken many days after Daisy’s death, Dr.

Tanguay was not able to give any insight or opinion about her state of intoxication at the time of death. [ 84 ] It is not in dispute between the Crown and accused that Daisy had likely consumed a fair bit or a substantial amount of alcohol. Dr. Tanguay did say, however, that the presence of alcohol in Daisy’s blood was not a substantial contributing factor in causing her death [ Trial Transcript : p. 66, l, 5-9, p. 75, l, 18-21].

(ii). Other forensic findings [ 85 ] The police found Daisy deceased, lying on the living room floor on her left side, wearing only a white shirt, and naked from the waist down. Her underwear and jeans were found near her body, and it was obvious that the underwear and jeans had been taken off at the same time. [ 86 ] Sergeant Dean Funnell of the R.C.M.P. is a bloodstain pattern analysis expert.

The report of his findings in this case was filed with the court [ Bloodstain Pattern Report: Exhibit P-6 [Exhibit P-6] ]. [ 87 ] Sergeant Funnell concluded that pools of blood and blood saturation stains in the living room, as well as the location and directionality of the transfer stains on items in the living room, were consistent with Daisy receiving multiple impacts while she was positioned on or near the floor in the same general area where she was located [ Exhibit P-6, p.4]. [ 88 ] In his report, Sergeant Funnell defines a blood transfer stain as “a bloodstain resulting from the contact between a blood bearing surface and another surface.” [ 89 ] Although Sergeant Funnell did not give testimony in the trial, as a matter of common sense it is fairly easy to construct a simple example of how a transfer stain might occur or come into being. [ 90 ] If, for example, a perpetrator (

P) were to punch or slap a victim (

V) in the nose which caused bleeding, then there are two simple ways that subsequent transfer stains could occur. First, if P placed his own bloody hand on the back of V’s neck, the resulting imprint of blood on the back of V’s neck could be classified as a transfer stain.

Similarly, if V touched his own bloody nose and then touched his forearm, the resulting imprint of blood on V’s forearm could likewise be classified as a transfer stain. [ 91 ] Respecting Daisy’s underwear and jeans, Sergeant Funnell made what he termed a “key finding.” He drew the conclusion that the bloodstain patterns on the underwear and jeans were consistent with Daisy bleeding while wearing this clothing [ Exhibit P-6 , p, 1 “Summary of Key Findings”]. [ 92 ] During counsel’s final submissions, the Crown extrapolated upon this key finding to suggest it means Daisy was injured while wearing the clothing. [ 93 ] In response, the accused took the position that the Crown’s extrapolation upon Sergeant Funnel’s finding was simply not inconsistent with a contrary conclusion.

Namely, that while Daisy may well have been bleeding while wearing the clothing, it does not necessarily follow that she was wearing the clothing while being beaten up. [ 94 ] Further, the accused says that even if Daisy was beaten up while she was wearing the clothing this says nothing about whether she was sexually assaulted because it does not negate the possibility of prior consensual relations. That is, consensual sexual activity at some point in time before the beating. [ 95 ] In my view, however, nothing turns on this particular finding by Sergeant Funnell.

In my view, there are more important findings in the Sergeant’s bloodstain pattern report. [ 96 ] First, on Daisy’s underwear there were transfer stains located on the interior and exterior of the left hip. Second, on her jeans there were transfer stains located above the right pocket area, and the interior hip of the waistband. Transfer stains were also located on the front and back of the left leg from the knee down to the cuff, and on the back of the left thigh area [ Exhibit P-6 , p, 1].

[ 97 ] There were also transfer stains, indeed prominent transfer stains, on both of her buttocks [ Exhibit P-5 , p. 5]. These transfer stains are starkly visible in the crime scene photograph taken by Corporal Sherrie Brunelle of the R.C.M.P. “V” Division Forensic Unit [ Exhibit P-5, photo # 005].

I shall have more to say about this photo later in my analysis of the case below. [ 98 ] Regarding the DNA findings, the results were as follows: Jeffrey’s DNA was found on the shaft of the hockey stick, semen matching Jeffrey’s DNA was found in both the vaginal and rectal swabs taken from Daisy, and, semen matching Jeffrey’s DNA was also found on the bottom left leg of Daisy’s jeans [ DNA Reports of Kathy Murphy: Exhibit P-7 ; at p. 9 for hockey stick; p. 3 for semen on jeans; and at pp, 17 and 19, respectively, for vaginal and rectal swabs]. D. Jeffrey’s testimony (i).

Testimony in-chief [ 99 ] Jeffrey told the court that he is 48 years old now, and was 42 years of age in May of 2009. He told the court that he is married, and that he and his wife have been together some 30 years. [ 100 ] Jeffrey testified about a troubled childhood. He said that his father abused both him and his mother, and that his grandparents raised him in large part. [ 101 ] He said that he stopped attending school after grade six when he was around twelve years old, and up until his arrest in 2011, has little work history.

He told the court that in May of 2009, he weighed about one hundred and sixty pounds. [ 102 ] Jeffrey testified that he came to Iqaluit on Monday, May 18, 2009, to attend a medical appointment scheduled for Tuesday morning. He said that he checked into the Frobisher Inn , and that on Monday afternoon he bought a bootleg 60 ounce bottle of Smirnoff vodka. Photos of this bottle, which was located in Daisy’s kitchen, were entered into evidence at the trial [ Exhibit D-2 ]. [ 103 ] It is clear from these photos that the bottle was roughly two-thirds full when it was found at Daisy’s house.

Or, in other words, one third of the contents, roughly twenty ounces, had been emptied and likely consumed at some point before the police seized the bottle. [ 104 ] Jeffrey testified that on Monday evening he went to the Storehouse Bar and Grill . He said he went there alone and drank alone. He does not remember how much he had to drink on Monday evening, but he said he does remember getting drunk.

He said that he occasionally smokes marijuana, but did not smoke any on Monday evening. [ 105 ] Jeffrey was asked by his lawyer to describe how drunk he got on Monday evening by reference to a scale of intoxication with extremes of between one and ten, in the following terms: I am going to ask you on a scale to try and tell us how drunk you were. And the scale, and we talked about it this weekend, was 1 to 10: 1, you’re absolutely sober just like you are right now; 10 you’re as drunk as you’ve ever been in your life.

You’re almost blacking out or maybe blacking out. [ Trial Transcript : p. 29, 8-14] [ 106 ] Jeffrey testified that when he left the Frobisher Inn on Monday evening he would have been, in his own estimation, roughly a seven on the intoxication scale. [ 107 ] Jeffrey testified that early on the evening of Tuesday, 19 May, he went to visit with a relative and friend by the name of Joamie who lives here in Iqaluit. He said it was about 5:30 p.m. when he went over to Joamie’s place, and that he and Joamie smoked a marijuana joint before heading up to the Storehouse Bar and Grill along with Joamie’s wife and son.

Jeffrey said it would have been

around 6:00 p.m. when they arrived at the bar. [ 108 ] The Storehouse Bar and Grill has an upper and a lower seating level. Jeffrey testified that the four of them secured a table on the upper level of the bar, and that he drank with Joamie and his family at this table from the time of their arrival at 6:00 p.m. until about 10:00 p.m.

He said that he also shared a marijuana joint at one point when the group stepped outside for a smoke. [ 109 ] During this time period, between 6:00 p.m. and 10:00 p.m., Jeffrey said that he consumed about eight or nine beers, along with two “screwdrivers” consisting of vodka and orange juice. [ 110 ] Jeffrey testified that at about 10:00 p.m., Joamie’s wife brought Daisy to their table and introduced her to Jeffrey. He said that he had never met Daisy before that night.

Jeffrey said that shortly after the introduction, Joamie and his family left the table and went to a table on the lower level of the bar. [ 111 ] This left Jeffrey and Daisy alone at the table. Jeffrey testified that Daisy had a can of beer with her when she first sat down and that in his opinion she was already intoxicated. Jeffrey said that he sat and drank with Daisy until closing time, which he said was at 11:00 p.m., and that he drank about two or three more beers during the time he sat with Daisy.

He said that he and Daisy left the bar together at closing time [ Trial Transcript: In-chief testimony of Jeffrey Salomonie, p. 41, l, 5-8]. [ 112 ] I pause here to note that it is clear, for what it may be worth, that Jeffrey is mistaken about what time the Storehouse closed on Tuesday, May 19, 2009. It is not disputed between the Crown and the accused that the bar closed not at 11:00 p.m. on the evening of 19 May, but rather at 1:00 a.m. on the morning of Wednesday, May 20, 2009.

And it has been stipulated between the Crown and the accused that Jeffrey and Daisy spent the evening at the Storehouse until it closed at 1:00 a.m. on the morning of Wednesday, May 20, 2009 [ Exhibit P-3; Agreed Statement of Facts , clause 5]. [ 113 ] Similarly, there is some discrepancy in Jeffrey’s testimony about how much he said that he had to drink when he was with Joamie’s family before he was introduced to Daisy. [ 114 ] At one point during his testimony, Jeffrey said that he had five or six beers while sitting with Joamie’s family, and a total of eight or nine beers along with two or three screwdrivers by the end of the evening.

However, at another point in his testimony, Jeffrey agreed with his lawyer’s suggestion that he had consumed these eight or nine beers along with the two or three screwdrivers while sitting with Joamie’s family, and then an additional two or three beers while sitting with Daisy [ Trial Transcript : p. 35, l, 16 – p. 36, l, 12; and p. 41, l, 5-9]. [ 115 ] However, regardless of the precise number of beers that Jeffrey may have consumed before leaving the bar, he testified that on the intoxication scale of one to ten, when he left the Storehouse, he would have been an eight or nine.

He said that both he and Daisy were wobbling when they left the bar [ Trial Transcript : p. 41, l, 1]. [ 116 ] Jeffrey testified that after he and Daisy left the bar they went to his room at the Frobisher Inn . He said that the bottle of vodka he had bought on Monday was in his room and had not been opened. He said that he and Daisy shared a small cup of vodka. Jeffrey also testified that he asked Daisy three times to stay over and spend the night at his room. He said that Daisy replied by saying that she was staying alone at her place.

Jeffrey testified that the reason he asked Daisy to stay over was because he wanted to have sex with her. He said that they stayed at the room for about one-half hour, and then they went by taxi to Daisy’s place in Happy Valley . He said that he brought the bottle of vodka to Daisy’s as well. [ 117 ] Jeffrey testified that on the intoxication scale of one to ten, he would have been about nine when he left the Frobisher Inn with Daisy. [ 118 ] Jeffrey testified that when they got to Daisy’s place, they were alone in the house.

[ 119 ] Jeffrey testified that he remembered putting the vodka bottle on the kitchen table, and that Daisy got a couple of glasses. He said he remembers pouring the drinks, that he believes that Daisy put on some music, and that they were both standing. He said that he poured two full glasses of vodka, and he said he thinks that Daisy drank about the same amount of vodka as he did. Jeffrey said that after Daisy put on the music they were not dancing, but he says he remembers hugging and kissing Daisy.

Jeffrey testified that after pouring a glass and taking a drink from it, that it was the last thing he remembered. He said, “I remember we had the glass. That – that’s the last thing I remember.” [ Trial Transcript : p. 50, l, 1-2]. [ 120 ] Jeffrey’s lawyer asked him how he remembers so well if he had been drinking so much. And Jeffrey answered by saying, “I don’t know. It’s just what I remember. The last thing I remember, I had a glass.

Last – that’s the last thing I remember.” [ Trial Transcript : p. 50, l, 13-15]. [ 121 ] Jeffrey’s lawyer asked him where on the intoxication scale of one to ten he would have been after having this glass of vodka. Jeffrey replied that he would have been “about 10.” [ Trial Transcript : p. 58, l, 22]. [ 122 ] Jeffrey testified that the next thing he remembered was being on the couch, and seeing Daisy on the floor. He said that he did not recognize her because her face was swollen.

He said at this point, the sun was up and it was light outside. [ 123 ] Jeffrey’s lawyer asked him what he did when he saw Daisy lying there on the floor. He said that he went into the kitchen to wash his footprints. [ 124 ] Jeffrey testified that after washing his footprints, he left Daisy’s house and walked back to his hotel. He said that he was still drunk when he left Daisy’s place, and that he was wobbling during his walk back to the hotel.

Jeffrey said that when he left Daisy’s place he would have been about nine on the intoxication scale. [ 125 ] Jeffrey testified that when he got back to the hotel, he remembered the clock in his room showed the time as 5:30 a.m. [ 126 ] He said that he checked out of his hotel and caught his flight to Cape Dorset later that same morning. E. Jeffrey’s cross-examination testimony [ 127 ] The Crown began his cross-examination by confirming with Jeffrey some of the things that Jeffrey had said he remembered from his testimony in-chief the previous day about his time at Daisy’s place.

Jeffrey agreed that he had testified he remembered pouring two glasses of vodka, some music being put on, and hugging and kissing Daisy. He agreed as well that he had testified the next thing he remembered was waking up and seeing Daisy, but not recognizing her because her face was so swollen.

Jeffrey agreed he had testified that after seeing Daisy in this condition, he remembered washing up his footprints [ Trial Transcript: Jeffrey Salomonie cross- examination ; pp. 1-5 [Cross-examination] ]. [ 128 ] The Crown then suggested to Jeffrey the reason he washed up his footprints was because there was blood everywhere within the house.

Jeffrey responded by saying that he could not remember or recall seeing a lot of blood when he woke up [ Cross-examination: 5, l, 13-15; p. 10, l, 18-20]. [ 129 ] The Crown then confronted Jeffrey with what he had told Staff Sergeant Townsend during the police interview of 7 June 2011. Jeffrey had told Staff Sergeant Townsend that when he woke up “I saw nothing but blood…I saw a lot of blood.” However, when confronted with this in court by the Crown, Jeffrey said only “I don’t remember making that statement [to Staff Sergeant Townsend].

I don’t remember.” [ Cross-examination: p. 10, l, 9-17]. [ 130 ] Indeed, Jeffrey maintained that he did not remember much at all of the 7 June 2011, interview or interrogation. In fairness, he did not dispute what he had told the police, and, in particular, what he had told Staff Sergeant Townsend. Jeffrey’s position in court under cross-examination by the Crown was that he simply could not remember most of the questions he had been asked by Staff Sergeant Townsend or other officers such as Constable Joseph Baines, or the answers he had given in response to these officers during the

interview.

Jeffrey expressed this position during cross-examination by making the point to the Crown repeatedly that “I don’t remember being interrogated in Iqaluit…There are a lot of things I don’t remember…I don’t remember Joe Baines…I don’t remember being interrogated in Iqaluit.” [ Cross-examination: p. 5, l, 24-26; p. 6, l, 4-21; p. 18, I, 25-26] [ 131 ] During the cross-examination, the Crown gave Jeffrey the opportunity to read and review several written excerpts of what he had told the police during the interview of 7 June 2011, and also asked or directed Jeffrey to watch some recorded portions of his interview which were played in court. [ 132 ] Jeffrey was unable to explain the difference between what he said to police during the interview about what he saw or did at Daisy’s place, and what he had told the court the previous day during his in-chief testimony about what he remembered about being at Daisy’s place. [ 133 ] He did not explain, for example, why he remembered much more about what happened at Daisy’s place when he was talking to the police than he told the court he remembered during his in-chief testimony. [ 134 ] Similarly, Jeffrey’s memory of what happened at Daisy’s place was not improved in any way as a result of reviewing the transcripts of what he had told the police, or as a result of watching the in-court video of what he had told the police. [ 135 ] For example, the Crown played the video portion of Jeffrey’s interview where he told Staff Sergeant Townsend that he had sex with Daisy after he woke up from his blackout.

After viewing this video, Jeffrey testified only that he could not remember making such a statement to Staff Sergeant Townsend. He simply repeated the position that, despite just having watched the video, “I don’t remember making the statement [to Staff Sergeant Townsend]…that’s the truth….what I said yesterday [in court] was what I remember, but I don’t remember making those statements [to Staff Sergeant Townsend].” [ Cross-examination: p. 19, l, 10-11; p. 20, l, 10]. [ 136 ] The Crown suggested to Jeffrey that what he told Staff Sergeant Townsend on the video was the truth about what happened at Daisy’s place.

In response, Jeffrey once again testified only that “I don’t know. I can’t recall. What I said yesterday [in court during the in-chief testimony] was the truth and that’s the truth.” [ Cross-examination: p. 20, l, 25-26]. [ 137 ] The Crown then asked Jeffrey, in point blank fashion, “[d]id you have sex with Daisy Curley on the early morning of 20 May 2009?” In reply, Jeffrey said simply, “[p]erhaps, I don’t know.” [ Cross-examination: p. 22, l, 24-27]. [ 138 ] Jeffrey agreed that he stayed at the Storehouse Bar and Grill until closing at 1:00 a.m. on the morning of Wednesday, 20 May 2009.

He said that during the course of the evening he became “pretty drunk.” Nonetheless, he said had no problem in navigating his way from his table on the upper level of the bar to the lower level throughout the evening in order to fetch his drinks and return again to his table. [ 139 ] Jeffrey said he does not remember if Daisy went to fetch her own drinks, but he remembered giving her a couple of drinks.

Jeffrey said that despite his high level of intoxication, none of the bar staff asked him to leave the premises. [ 140 ] Jeffrey agreed with the Crown that in terms of how much he had to drink, the court only has his own word to judge this. Jeffrey said that prior to May of 2009, he would not describe himself as a heavy drinker. He said that back home in Cape Dorset he would only drink about once per month when a liquor order came in. However, on such occasions Jeffrey said he would usually drink a lot and get really drunk.

He agreed with the Crown who suggested to Jeffrey that his tolerance for alcohol was “pretty high.” [ Cross-examination: p. 27, l, 7-12]. [ 141 ] Jeffrey agreed with the Crown that when he was with Daisy in the bar, he became very much sexually interested in her as the evening wore on, and as they were about to leave.

[ 142 ] Jeffrey agreed as well, although in my view reluctantly, that the reason he asked Daisy three times to stay overnight in his room was because he wanted to have sex with her.

Jeffrey told the Crown that in response to these three invitations, Daisy said only that “[s]he was home alone and she would rather go to her place with me, so we went.” [ Cross-examination: p. 36, l, 2-3]. [ 143 ] Jeffrey agreed with the Crown, but again in my view reluctantly, that the reason he went with Daisy to her place was to spend the night with her and have sex with her [ Cross-examination: p. 38, l, 6-12]. [ 144 ] Jeffrey agreed with the Crown’s suggestion that Daisy had been flirting with him in the bar, and later when they went to her place he made a move on Daisy by kissing and hugging her.

But Jeffrey added that “we both made a move, not just me.” And he went on to say that “after she put on some music, I remember she coming over to me at the table.” [ Cross-examination: p. 38, l, 23-24]. [ 145 ] The Crown reminded Jeffrey, and he agreed, that his memory of Daisy “coming over to me at the table” was something or a detail which Jeffrey did not tell the court about the previous day during his testimony in-chief.

But Jeffrey continued to maintain that “[w]hen she came we were kissing and hugging, we had a glass and that’s when I – that’s the last thing I remember.” [ Cross-examination: p. 39, l, 3-6 and 21-23]. [ 146 ] In response to this, the Crown challenged Jeffrey and suggested to him that Daisy did not want to have sex with him at all. In response to the Crown, Jeffrey was clear in saying “[i]f she didn’t want to have sex I don’t think that she would invite me to her place… that’s my theory.

That’s what I’m thinking.” [ Cross-examination: p. 40, l, 6-10]. [ 147 ] The Crown suggested to Jeffrey that at some point Daisy told him she did not want to have sex and that he became enraged when he saw that she was not interested in having sex. In response, Jeffrey said he simply does not know if Daisy ever indicated she did not want to have sex, and he said he has no memory of ever being angry at Daisy.

He said simply, “I don’t remember getting into a rage thing.” [ Cross-examination: p. 41, l, 2 – p. 42, l, 18]. [ 148 ] The Crown pursued this theme and suggested to Jeffrey that he did in fact become enraged, and to the point where he hit Daisy so hard that the hockey stick he used broke into three pieces.

In response, Jeffrey said, “I don’t remember seeing a hockey stick, I don’t remember a hockey stick in my hands…I don’t remember doing anything to her…I don’t remember being rage.” [ Cross-examination: p. 41, l, 19 – p. 43, l, 4]. [ 149 ] The Crown then referenced Jeffrey’s 7 June 2011, interview with Staff Sergeant Townsend where he said, “[t]hen when she [Daisy] started turning away, I don’t know why, that’s when I blacked out.” The Crown suggested to Jeffrey that it was when Daisy “turned away” from him, as he told Staff Sergeant Townsend she had, that she was shutting him down and essentially telling him she was not interested in sex.

In response, Jeffrey said only that “I don’t remember making the statement, so I don’t know. Can’t recall.” [ Cross-examination: p. 49, l, 6-7 and p. 49, l, 25]. [ 150 ] During final arguments, much was made between the Crown and the accused about what could or could not be inferred from Jeffrey’s comment to Staff Sergeant Townsend that Daisy had turned away from him before he blacked out. In my view, there is nothing of probative value to be gleaned from such an innocuous comment, particularly when I bear in mind that evidential discrepancies or

interpretations of evidence which are truly grey in nature should yield in favor of the accused’s positon. [ 151 ] Jeffrey said that he remembered being arrested on 6 June 2011, and transported to Iqaluit. And he agreed with the Crown that the police interview the next day, on 7 June, was an important moment in his life. Nonetheless, and despite the fact he was sober throughout the interview, Jeffrey continued to maintain that he could not remember being questioned by the police in Iqaluit.

Again, he said simply, “I don’t remember being there, I don’t remember being interrogated.” [ Cross-examination : p. 62, l, 12-13]. [ 152 ] The Crown continued to question Jeffrey about things he had said to Staff Sergeant Townsend during the June 7, 2011, interview. He was questioned in particular about how he told Staff Sergeant Townsend in some detail about having sex with Daisy after he woke up and as she was moaning in pain, and about the fact that he told Staff Sergeant Townsend that he had seven or eight beers at the

Storehouse bar that night. The Crown suggested that this was fewer beers than he testified to having during his in-chief evidence. [ 153 ] Jeffrey simply confirmed his earlier in-chief testimony that on the intoxication scale of one to ten, he would have been about an eight or nine. That is, he was only one or two points away from passing out when he and Daisy left the Storehouse. [ 154 ] Jeffrey also confirmed his earlier testimony about what he remembered after leaving the bar.

Specifically, going to his hotel room with Daisy and having a drink there with her, asking her three times to stay and spend the night with him, and going with Daisy to her place. Jeffrey said he remembered the taxi ride, but not actually getting out of the taxi, and he offered up that he remembered as well Daisy unlocking the door to the house. [ 155 ] The Crown suggested to Jeffrey that it was curious he could remember such detail, but not remember beating Daisy or hitting her with a hockey stick. In response, Jeffrey said only, “what I remember, I say.

What I don’t remember, I can’t recall.” [ Cross-examination : p, 67, l, 3-25]. [ 156 ] The Crown pursued this line of questioning with Jeffrey by suggesting “[r]ight.

And all these things that you can remember – the drinking, …going over to her house – all of those things that you can remember, they happen to be all things that don’t involve violence on your part, correct?” To which Jeffrey replied by saying only, “I don’t remember being violent.” The Crown then said “[b]ut you remember all the non-violent things, correct?” Jeffrey replied by simply saying, “Yes.” [ Cross-examination : p. 67, l, 26 – p. 68, l, 8]. [ 157 ] Jeffrey admitted, albeit reluctantly after repeated questioning, that he “may have been” suicidal back in June of 2009, when he heard that police from Iqaluit had arrived in Cape Dorset, and were investigating Daisy’s death.

But he vigorously denied the suggestion that the reason he harbored any such suicidal thoughts was because knew and remembered what he had done to Daisy. He said, “I don’t remember hurting her, that’s the truth.” [ Cross-examination : p. 80, l,4]. [ 158 ] I should note, at this point, that in my view any alleged post-offence conduct by Jeffrey is not of much probative value of his state of mind when he killed Daisy.

The things that Jeffrey did after the fact, like mopping up his footprints or throwing his jersey in the hotel trash, if I accept what he told the police in his statement, or lying to Constables Lambe and Barnes in Cape Dorset are probative of the fact Jeffrey killed Daisy, but that is all. [ 159 ] The Crown asked Jeffrey if he tried to help Daisy after he woke up and saw her lying on the floor. Jeffrey said that “I remember going towards her. I – I saw her swelling. Her face was swelling.” Jeffrey also agreed with the Crown that he did nothing to help Daisy.

When he saw Daisy lying there on the floor, all he did was wipe up his footprints and leave [ Cross-examination : p. 94, l, 14-27]. [ 160 ] The Crown finished his cross-examination by reviewing with Jeffrey the details of his criminal record. Jeffrey was in trouble with the law as a youth, and then again as an adult. In 1991 and 1992, when Jeffrey was in his early twenties, Jeffrey was convicted for a number of offences including pointing a firearm, break and entry, sexual assault, assaulting a peace officer, and common assault. At one point, he served a seven month jail term.

He was then out of legal trouble until 2007 and 2008, when he was convicted of assault causing bodily harm, obstructing a police officer, and breaching the terms of a probation order. I am mindful, of course, that I may consider Jeffrey’s criminal record only, if at all, in an assessment of his credibility as a witness. IV. THE LAW A. Proof of murder [ 161 ] The Criminal Code , RSC 1985, c C-46 [Criminal Code],

section 229 says that murder is committed: (

a) where the person who causes the death of a human being

(

i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not [ 162 ] The crime of murder is an offence which requires both a criminal act (the act of killing), as well as a criminal mind (an intent to kill).

These two things – the act of killing, and the intent to kill - are the “essential elements” of murder. [ 163 ] So before a person may be found guilty of murder, the judge or jury must be sure that the accused not only killed the victim, but at the time of the killing also had an additional ulterior purpose beyond simply killing the victim.

The judge or jury must be satisfied that the accused possessed the requisite criminal intent, which in cases of murder we call “specific intent.” [ 164 ] This requisite criminal intent, or specific intent, may be present or manifest itself on the fact of an individual case in either one of the two ways set out above in the Criminal Code . [ 165 ] First, if it is shown that the accused person actually wanted or meant to cause the end result of death then the requisite criminal intent is present. [ 166 ] Second, even if it cannot be shown that the accused person actually wanted, meant, or intended the end result of death, but it is shown that he meant to cause bodily harm which he knew was likely to cause death and was reckless as to whether death ensued, the requisite criminal intent is also present ( Criminal Code , s 229). [ 167 ] But it is not “recklessness” per se on the part of the accused which can result in him being found guilty of murder.

The judge or jury must first be satisfied that he inflicted bodily harm which he knew was likely to cause death, and then, as judges often express it to juries, simply did not care if his victim died or not. [ 168 ] It is important to bear in mind also that before an accused person may be found guilty of murder, it is the Crown which bears the burden of proving the case. The burden of proof upon the Crown in a criminal trial is a high one. The Crown must prove the case to the satisfaction of the judge or jury beyond a reasonable doubt; suspicion or probable guilt is not enough.

In a criminal trial an accused does not have to prove anything. His innocence is presumed. It is the Crown that must establish guilt. This burden of proof never shifts to an accused. It remains on the Crown throughout the trial. [ 169 ] The Crown is not required, however, to prove the case to an absolute certainly, for such would be an impossible standard. And further, in proving the case, the Crown is not required to prove the truth of every single piece of evidence beyond any doubt.

The Crown is required to prove only the “essential elements of the offence.” But it must prove each and every element of the individual offence beyond a reasonable doubt. If the Crown fails to prove any of the essential elements of the offence, then the accused is entitled to an acquittal on the particular charge(

s) before the court. As noted above, the essential elements of murder which the Crown must prove are the act of killing, and the specific intent to kill. [ 170 ] In a murder case, it is of course impossible to get inside an accused person’s mind and to know with any certainty whether he meant to cause the victim’s death, or whether he knew that what he was doing to the victim would likely cause death. So, in addition to any other evidence offered by the Crown to prove the required criminal intent, the court will often examine details respecting the nature and manner of the harm inflicted upon the victim in order to inform itself on this crucial issue.

B. Intoxication and manslaughter [ 171 ] It is not uncommon in murder trials that an accused will plead or argue that the court should have a reasonable doubt about whether the Crown has proven the requisite criminal intent because of the accused’s advanced state of intoxication as a result of consuming alcohol or drugs. In such a case, an accused will say that he was so intoxicated, most often so drunk from consuming alcohol, that he was not sufficiently self-aware to have a full appreciation of what he was doing at the time of the killing.

Thus, he lacked any foresight into the consequences of what he was doing, or about what might happen to the victim. [ 172 ] Therefore, the ultimate question for a court when this issue is raised is whether or not, because of the accused’s advanced state of intoxication, there is a reasonable doubt that he either: meant to cause the victim’s death, or, knew that he was inflicting the type of bodily harm which was likely to cause the victim’s death at the time of the killing. [ 173 ] Strictly speaking, the so-called intoxication defence is really not a defence at all because even if it is successful, the accused will not simply be set free.

The killing is still an unlawful and culpable homicide, and the Criminal Code provides that an unlawful killing which is not murder is manslaughter. And so, if the accused’s advanced state of intoxication leaves the court with a reasonable doubt about whether he was possessed of the requisite criminal intent at the time of the killing, he would still be found not guilty of murder, but guilty of manslaughter. [ 174 ] There are a number of ways that an accused may introduce evidence of his high state of intoxication due to consumption of alcohol.

Sometimes, in addition to his own testimony about how much he had to drink and how it affected him, he may introduce the expert testimony of a toxicologist and/or forensic psychiatrist who might give the court insight into the effects of alcohol on the thinking process and/or the individual accused’s reactions to differing quantities of alcohol. At other times the accused may simply rely on the observations of witnesses in the case who saw how he was behaving. And finally, the accused may, in some cases, simply rely on his own story about how much he had to drink and how it affected his actions and memory.

It is not unusual as well that corroborative physical evidence such as empty or partially empty liquor bottles might be introduced into evidence to support the intoxication defence. There is no required method of proof that an accused must meet from an evidential standpoint in order to rely on the intoxication defence.

The evidential base for the defence will vary from case to case. [ 175 ] The intoxication defence must, however, meet a minimum threshold air of reality standard before a court may properly consider, or a before a jury is even allowed to consider, the effect of an accused’s consumption in relation to the question of whether or not at the time of the killing he possessed the requisite criminal intent to kill. [ 176 ] In the case of trial by jury, the trial judge must be satisfied that there is sufficient evidence of intoxication to merit the jury considering the intoxication defence.

To use an extreme example to illustrate this point, if an accused testified that he had consumed only one beer, but was nonetheless so drunk that he lacked foresight into his actions, the trial judge would not allow the jury to consider the intoxication defence. [ 177 ] At the same time, the air of reality test is not a particularly high one, and properly so because it is quite common for the Crown in a murder case to rely on the common sense principle that “a man intends the natural consequences of his actions” in advancing the proposition to a jury that an accused knew exactly what he was doing and what would happen or likely would happen to the victim. [ 178 ] In applying the air of reality test to the evidence to determine if the evidence of intoxication is sufficient to allow the jury to consider the intoxication defence, the trial judge must be satisfied that the effect of intoxication was such that an accused’s foresight of consequences might have been impaired sufficiently to raise a reasonable doubt about whether he had the requisite criminal intent to kill. [ 179 ] If the trial judge decides that such is the case then the jury will be allowed to consider the defence of intoxication.

It will be the jury’s responsibility to weigh the evidence of intoxication. But it is still the Crown’s job to essentially overcome or rebut the intoxication defence, because the trial judge will tell the jury that the issue before them is whether the Crown has satisfied them beyond a reasonable doubt that an accused had the requisite intent.

[ 180 ] In this case, since I am presiding without a jury, I need not consider the preliminary question of whether the accused has met the threshold air of reality test. For what it is worth, if I were sitting with a jury in this case, I would allow the jury to consider the intoxication defence. However, in the absence of a jury I am able to cut to the chase and consider the ultimate determination as to whether or not the Crown has proven beyond a reasonable doubt that the accused possessed the requisite intent. C. First degree murder and constructive first degree murder [ 181 ]

Section 231 of our Criminal Code says that murder is either first degree murder or second degree murder. [ 182 ] Murder is first degree murder where the killing is planned and deliberate. A murder which is planned and deliberate is one where the killer thinks ahead of time about how he is going to end the victim’s life, and then goes about and carries out his plan. The plan need not be elaborate, nor is there any required time frame between the making of a plan to kill and the act of deliberately carrying it out. [ 183 ] The most obvious example of first degree murder is a so-called contract killing.

But there have been many instances of first degree murder where the killer did not receive money at all, such as where the reason for the murder was for example simply jealousy, or vengeance. [ 184 ] There are also several other ways separate and aside from a planned and deliberate killing in which murder is first degree murder.

We need only consider, however, one of those ways. [ 185 ] Section 231(5) of the Criminal Code says that irrespective of whether a murder is planned and deliberate, murder is first degree murder when the death is caused by an accused while committing or attempting to commit certain other offences. Sexual assault is listed as one of those offences. So, if a person, while committing murder, also causes death while committing a sexual assault then that person is guilty of first degree murder. [ 186 ] This type of first degree murder is called “constructive” first degree murder.

That is, murder which is predicated on the commission of another offence while the murder is being committed. [ 187 ] There are two components to constructive first degree murder. [ 188 ] The first component has to do with the requisite criminal intent for murder. To be found guilty of constructive first degree murder, an accused must first have the requisite criminal intent or specific intent required for murder at the time of the killing.

If an accused does have the requisite criminal intent for murder at the time of the killing, then he would be guilty of murder. [ 189 ] If, as a second component in constructive first degree murder, he causes the victim’s death while committing a sexual assault, then the killing is not just murder. It becomes first degree murder. [ 190 ] The Crown must, of course, prove that the act of killing was in fact a murder, and that it occurred while the killer was committing the offence of sexual assault.

If the Crown proves murder, but falls short of proving that the murder was committed while an accused was committing a sexual assault, then the accused would be found guilty of second degree murder only. [ 191 ] Unlike first degree murder, the circumstances under which second degree murder may be committed are not defined or set out in the Criminal Code .

Section 231(7) of the Criminal Code simply says that, by default, “all murder that is not first degree murder is second degree murder.” [ 192 ] In this case, the Crown does not allege that Jeffrey is guilty of first degree murder because of a planned and deliberate killing. The Crown does not suggest that Jeffrey came up with that plan and killed her.

[ 193 ] Rather, in this case, the Crown says that Jeffrey is guilty of constructive first degree murder.

The Crown alleges that his act of killing Daisy was murder, and that he committed this murder while committing the offence of sexual assault. [ 194 ] In many cases of constructive first degree murder, it becomes necessary to review what the law says about the meaning of the phrase “while committing.” [ 195 ] The many legal precedents that have dealt with this phrase as a foundation for first degree murder make it clear that the law does not require that the killing and the sexual assault occur simultaneously, or even in any particular order.

Indeed, the sexual assault may even occur after the victim is dead. [ 196 ] Where the murder and the sexual assault are inextricably intertwined it does not matter in what sequence they may have occurred. The law only requires that the temporal and causal connections between the murder and the sexual assault are so close that they form a continuous sequence of events forming a single transaction. [ 197 ] The authorities are clear that what is important is not the order of commission, but the temporal and causal connection which exists between the murder and the sexual assault.

When the required linkage is found to exist, it is the two crimes committed together, regardless of their order, which represent the ultimate exploitation of the position of power over a victim and mandate a conviction for first degree murder. V. POSITIONS OF THE PARTIES A.

The Crown [ 198 ] The Crown maintains that the case against Jeffrey for first degree murder is proven by the forensic evidence alone, separate and aside from whatever Jeffrey told the police in his interview with Staff Sergeant Townsend, or anything Jeffrey said during his testimony. [ 199 ] The Crown says that Jeffrey’s plea to manslaughter means nothing in terms of proving that he killed Daisy, since his DNA was on the murder weapon (the hockey stick). [ 200 ] Further, the Crown says that they have proven Jeffrey had the requisite criminal intent for murder when he killed Daisy.

In this regard the Crown points to the nature and location of the injuries. The Crown says these injuries are focused on the head and upper torso, and predominately the head. [ 201 ] It is clear, therefore, from an examination of the nature and extent of the injuries that when Jeffrey beat Daisy to death, he either: meant to cause her death, or, at least inflicted serious bodily harm that he knew would likely cause death, was reckless as to whether death ensued, and he just did not care if she died or not.

The Crown says that it would have been obvious to Jeffrey that Daisy’s death was foreseeable. [ 202 ] Further, the Crown says that Jeffrey had a motive or reason to be angry at Daisy. He admitted in court he was anxious and eager to have sex with Daisy. The Crown says also that he expected Daisy to deliver. The Crown notes Jeffrey’s testimony during cross- examination where he said, “If she didn’t want to have sex why would she invite me to her place…that’s my theory.” [ 203 ] The Crown suggests that Jeffrey became enraged at Daisy and a beating started.

He started beating her, and that the beating degenerated into a beating with sex or with sex shortly afterwards.

[ 204 ] The Crown reminded the Court that during Jeffrey’s cross-examination they suggested it was when Daisy “turned away” from him after he poured a drink, as he told Staff Sergeant Townsend during his police interview, that he became enraged and attacked Daisy. And the Crown says that Jeffrey avoided any discussion or explanation of what he had told Staff Sergeant Townsend simply by saying that that he had no memory of the police interview at all.

The Crown says this is simply not credible and should reflect adversely upon Jeffrey’s credibility. [ 205 ] The Crown describes Jeffrey’s professed lack of memory as simply a selective memory, and something akin to a light bulb which he can turn off and on when certain memories are convenient and favorable to him.

For example, the Crown submits Jeffrey says he can remember all the non-violent things before going to Daisy’s house, and after leaving her house, but none of the violent things which he did inside the house. [ 206 ] The Crown suggests that the Court should approach Jeffrey’s testimony about how much he had to drink with caution simply because it does not make sense that after drinking as much as he said he did that he could have a memory of only things which are favorable to him.

The Crown says that the only evidence that Jeffrey was as drunk as he says he was comes from Jeffrey, albeit the Crown does not dispute he had a fair bit to drink, including some of the 20 ounces of vodka that was consumed at some point. [ 207 ] Similarly, the Crown suggests that the only “time-line” the Court has of when things happened at Daisy’s also comes from Jeffrey.

And the Crown suggests that the Court ought to approach this aspect of Jeffrey’s testimony with caution as well. [ 208 ] The Crown suggests that the Court should simply reject Jeffrey’s story that he was so drunk he cannot remember attacking Daisy, or even having sex with Daisy. The Crown says that the reason for this is simply because Jeffrey is a liar with no credibility.

The Crown says he lied to the police about Daisy being fine when he left her, about even being in Iqaluit when she died, about how much he had to drink, and about his memory of the events on the night he killed Daisy. [ 209 ] The Crown acknowledges that even should I reject Jeffrey’s testimony, I may only find him guilty if there is other credible evidence in the case which warrants such a finding at the required standard of proof in a criminal case.

However, the Crown rests on the proposition that Jeffrey’s criminal intent is made out by the nature and severity and location of the injuries, and that the sexual assault component of first degree murder is also proven by the forensic evidence. [ 210 ] The Crown notes first that Jeffrey’s semen was found on the vaginal swab which itself proves that there was sexual intercourse. The Crown concedes the absence of any genital injury or trauma, but suggests that this alone is a neutral fact.

The Crown suggests that, except for one possible defense wound, the assault upon Daisy was not resisted by her because she may have been unconscious early into the attack. Thus, the Crown says it is not surprising that there was no genital trauma. [ 211 ] Further, the Crown says Sergeant Funnell’s Bloodstain Pattern Report [ Exhibit P-6 ], shows that the blood in the crotch area of Daisy’s jeans and underwear is consistent with her wearing the clothes while she was bleeding.

The Crown has extrapolated on this finding to suggest that it may be interpreted to mean that Daisy was wearing the clothes while she was being beaten, and if so, was then sexually assaulted afterward. [ 212 ] The Crown says that any suggestion that there may have been consensual sexual intercourse before any assault took place is an absurd and speculative suggestion.

The Crown says it would have required Daisy to have put her clothes back on, followed by an assault after. [ 213 ] The Crown points out as well that if I accept as true what Jeffrey told Staff Sergeant Townsend during the police interview, that he had sexual intercourse with Daisy after he woke up, then that statement itself is proof of a sexual assault. The Crown says that such a sex assault is, if I accept what Jeffrey told Staff Sergeant Townsend, clearly one which was committed as part of a single continuous transaction which culminated in Daisy’s death.

And this, the Crown says is proof that when Jeffrey committed murder he caused Daisy’s death while committing the offence of sexual assault, and so should be found guilty of murder in the first degree.

[ 214 ] The Crown also points out that it is not required to prove forced sexual intercourse, or rape, but only that there was a sexual assault committed by Jeffrey.

For example, proof that he pulled down her pants at any point before, during, or after the beating would also constitute a sexual assault and mandate that Jeffrey should be found guilty of murder in the first degree. [ 215 ] In this case, the Crown submits that both the murder and the accompanying sexual assault have been made out by the evidence well beyond any reasonable doubt, and that accordingly I should find Jeffrey Salomonie guilty of first degree murder. B.

The Defence [ 216 ] The Defence says that the narrow legal questions or issues that I have to decide in this case are clear: what was Jeffrey’s state of mind on the early morning of May 20, 2009, when Daisy died; and, was he self-aware and acting knowingly to end the life of the deceased, or was he so drunk that he did not know what he was doing? [ 217 ] The Defence says that an examination of Daisy’s injuries, as severe as they were, and as fatal as they were, is nonetheless informative to show that there is certainly a reasonable doubt about whether he meant to cause Daisy’s death, or, when he was beating her, about whether he was aware that he was causing bodily harm which he knew was likely to cause her death. [ 218 ] On the one hand, says Defence Counsel, despite the fact that the most significant injuries were to the head, the absence of any fracture to the skull is some indication that Jeffrey did not meant to cause Daisy’s death.

At the same time, Defence Counsel says that the utterly mindless nature of the assault is suggestive of disordered thinking and consistent with the lack of a specific intent to kill. [ 219 ] Defence Counsel says that his client has been consistent from the very beginning that he does not remember having sex with Daisy. Defence Counsel says that as early as 2009, he told Constables Baines and Lambe when they spoke to him in Cape Dorset that he did not remember having sex with Daisy.

And further, says Defence Counsel, Jeffrey was consistent during his testimony before this court, which included rigorous cross-examination, that he simply has no memory of any sexual activity with Daisy. [ 220 ] Defe

[…]