R. v. Salomonie, 2020 NUCA 1

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R. v. Salomonie, 2020 NUCA 1 Date : 2020-03-09 Docket: 08-16-002-CAS Registry : Iqaluit Between: Her Majesty the Queen Respondent -and- Jeffrey Salomonie Appellant _______________________________________________________ The Court: The Honourable Mr. Justice Frans Slatter The Honourable Madam Justice Jolaine Antonio The Honourable Mr. Justice Kevin Feehan _______________________________________________________ Memorandum of Judgment

Appeal from the Conviction by The Honourable Mr. Justice N. A. Sharkey Convicted on the 5th day of April, 2016 ( 2016 NUCJ 10 , Docket: 08-11-318) MEMORANDUM OF JUDGMENT (NOTE: This document may have been edited for publication) I. INTRODUCTION [ 1 ] The appellant, Jeffrey Salomonie, appeals his conviction for first degree murder. Mr. Salomonie killed AB and had sexual intercourse with her. At trial, the issues were his intent, whether all the sexual activity was consensual, and the timing and sequence of events.

His offer to plead guilty to manslaughter was rejected by the Crown. [ 2 ] No publication ban on the victim’s name has been ordered to this point in the proceedings, although one would be available under s. 486.4 of the Criminal Code for an offence under s. 231(5) involving one of the enumerated sexual offences: see the analysis in R v Barton , 2019 SCC 33 at paras 73-76 on the

interpretation of analogous wording in s. 276. II. FACTS [ 3 ] Mr. Salomonie was in Iqaluit to attend a medical appointment. On the evening of May 19, 2009, he met AB at the bar in the hotel complex where he was staying. He and AB were together until the bar closed early the next morning. Mr. Salomonie testified both he and AB were intoxicated. They went to Mr. Salomonie’s hotel room, drank some vodka, then went to AB’s house where, at the time, she was staying alone.

He testified that on a scale of 10, his intoxication level was at eight when they left the bar, and by the time they went to AB’s home, he was at nine. Later that morning, he checked out of the hotel and returned home on a flight to Cape Dorset. [ 4 ] AB’s body was not discovered until May 24. She was lying on her living room floor wearing a long-sleeved shirt and was naked from the waist down. [ 5 ] Mr. Salomonie was interviewed twice. On the first occasion, June 4, 2009, he was not a main suspect. He admitted to spending the night with AB at her home. He said they were drinking, playing music and kissing.

After pouring a second glass of vodka, he blacked out. He could not recall whether he had sexual intercourse with AB before blacking out. He said he woke up about 5:00 am and AB was asleep on the couch beside him. He woke her up and told her he had to get back to Cape Dorset, then left. He said that he and AB were both fully clothed. He claimed when he left, AB was fine, and denied harming her or causing her death. [ 6 ] After further investigation, the police had grounds to believe Mr. Salomonie was the perpetrator.

On June 6, 2011, he was arrested, transported to Iqaluit and interviewed a second time over a 12-hour period. Eventually, Mr. Salomonie partially confessed to assaulting AB and to having sexual intercourse with her. He said that after blacking out, he woke up on the couch and AB was on the floor completely naked and badly beaten. There was a lot of blood and he panicked. Despite saying her face was bruised so badly she

was unrecognizable, Mr. Salomonie told the police he had sexual intercourse with her. He thought he had hit her with his fists and could not recall using a weapon. He admitted to wiping his bloody footprints in the kitchen before he left. [ 7 ] An agreed statement of facts was filed as a trial exhibit. It included admissions that Mr.

Salomonie caused AB’s death by striking her repeatedly with his fists and a hockey stick; that he had intercourse with her in the early morning hours of May 20, 2009; and that before he left her house that morning he attempted to wipe his bloody footprints off the kitchen floor. [ 8 ] At trial, Mr. Salomonie testified that the last thing he remembered was pouring a glass of vodka and taking a drink. When he woke up, he found AB in an injured state but had no recollection of having sex with her. He did not deny that he had.

When cross- examined about his statement to Staff Sergeant Townsend that he had sex with AB after waking to find her injured, he claimed to have no recollection of those statements. [ 9 ] The pathologist, Dr. Joseph Tanguay, who conducted the autopsy of AB, testified she died from blood loss resulting from multiple blunt force injuries to her head and face, with injury to the brain being a possible contributing factor. His post-mortem report itemized 20 injuries to AB’s face, skull and neck.

He categorized the head injuries as significant, which meant it would require the application of a significant amount of force to cause such injuries. He was aware that the police found a hockey stick at the crime scene; he testified the bruises on AB’s torso and her broken shoulder blade were consistent with blows from a hockey stick. A bruise on the back of her left hand was consistent with a defensive injury. [ 10 ] Dr. Tanguay was unable give a timeline for how long it took AB to die, but said it would not have been instantaneous.

It was possible that she was not conscious when she received the majority of the blows as the defensive injuries were not extensive. [ 11 ] He found no injuries to the genital or anal area but could not say the absence of an injury was any indication of consensual sexual intercourse. [ 12 ] Toxicology showed AB’s blood alcohol was 204 mg% but as the blood sample was taken many days after death, Dr. Tanguay could not give an opinion about her state of intoxication at the time of death. [ 13 ] Sergeant Dean Funnell of the RCMP testified as a bloodstain pattern expert.

He concluded the bloodstains were consistent with AB receiving multiple impacts while she was on or near the floor in the same general area where she was located. Bloodstain patterns on AB’s underwear and jeans were consistent with her bleeding while wearing them. [ 14 ] DNA findings showed Mr. Salomonie’s DNA on the shaft of the hockey stick and his semen in vaginal and rectal swabs taken from AB, and from the bottom left leg of her jeans. III. REASONS OF THE TRIAL JUDGE [ 15 ] In considering the defence of intoxication, the trial judge rejected Mr. Salomonie’s testimony that he did not recall assaulting AB.

Despite his claim he was extremely intoxicated, the trial judge noted that Mr. Salomonie was able to remember a number of important things about his time with AB including leaving the bar, sharing a vodka, what they talked about in his hotel room and that he asked her three times to spend the night with him in his hotel. He also remembered going to her house by taxi, AB putting on music, and pouring drinks. He remembers they were hugging and kissing.

Although he said he passed out, he remembers waking up and seeing AB on the floor, beaten up, and he remembers wiping up his footprints, returning to the hotel and that the clock in his hotel room showed the time as 5:30 am. The trial judge concluded Mr. Salomonie was exhibiting a classic case of selective memory, “remembering” things that could not harm him but none of his violent acts. [ 16 ] On the issue of whether Mr.

Salomonie meant to cause AB’s death, or meant to cause bodily harm to her which was likely to result in her death while being reckless whether death ensued, the trial judge referred to the autopsy report and the bloodstain pattern report. Given the severity of the head injuries, he found the person who inflicted them did so with the presence of mind to target the most

vulnerable part of her body where he could do the most damage. Since the pathologist could only identify one defensive injury, the assault was basically unresisted. The hockey stick had broken into three pieces from the force of the beating. The trial judge concluded that Mr. Salomonie was self-aware. He knew he was inflicting bodily harm which was likely to cause death and was reckless as to whether death ensued. [ 17 ] The trial judge then considered whether death was caused while Mr. Salomonie was committing or attempting to commit a sexual assault. He expressly stated that Mr.

Salomonie’s lack of memory of sexual activity was not proof that he committed a sexual assault. [ 18 ] The trial judge held he was not prepared to accept as true Mr. Salomonie’s admission to Staff Sergeant Townsend that he had sexual intercourse with AB after he woke from his blackout, when she was lying on the floor, still alive, but beaten up. He found Mr.

Salomonie was not reliable as he had lied repeatedly to the police, and could not be cross-examined on his admission as he claimed he could not remember being interviewed by Staff Sergeant Townsend. [ 19 ] Instead, the trial judge relied on the forensic evidence. AB was wearing her underwear and jeans while she was bleeding. There were blood transfer stains on her jeans and underwear, and photographs showing long, wide blood transfer stains on her exposed buttocks.

From this evidence, the trial judge found that her jeans and underwear had been pulled down by an assailant with bloody hands, and that she had been beaten and sexually manhandled. [ 20 ] He concluded Mr. Salomonie caused AB’s death by beating her repeatedly with a hockey stick and with his fists, mainly on her head, but also on her upper torso; Mr. Salomonie was guilty of murder because at the time he caused AB’s death he meant to cause bodily harm that he knew was likely to cause her death, and was reckless as to whether death ensued or not; the defence of intoxication was rejected; and Mr.

Salomonie was guilty of first degree murder because he caused AB’s death while committing the offence of sexual assault. IV. GROUNDS OF APPEAL [ 21 ] The appellant submits the trial judge erred in:

a) his consideration of the effects of intoxication on the appellant; and

b) finding the appellant guilty of first degree murder by finding a concurrent sexual assault. V. STANDARD OF REVIEW [ 22 ] The standard of review for an issue of law is correctness. The standard of review for a finding or inference of fact is palpable and overriding error. Where there is an application of a legal test to the facts, which involves a question of mixed fact and law, it is also reviewed on a standard of palpable and overriding error unless there is an extricable error in law to which correctness applies: Housen v Nikolaisen , 2002 SCC 33 at paras 8 , 10-37, [2002] 2 SCR 235.

Whether a witness is credible is a question of fact. Findings of fact and credibility are entitled to deference unless they are clearly wrong, unsupported by the evidence, or otherwise unreasonable. Any error must be plainly identified and shown to have affected the result: R v RP , 2012 SCC 22 at para 10 , [2012] 1 SCR 746 ; R v Gagnon , 2006 SCC 17 at para 10 , [2006] 1 SCR 621 ; R v Clark , 2005 SCC 2 at para 9 , [2005] 1 SCR 6 . VI. DID THE TRIAL JUDGE ERR IN CONSIDERING THE EFFECTS OF INTOXICATION? [ 23 ] Mr.

Salomonie submits that while the trial judge correctly stated the law on the intoxication defence, he erred in applying it. The trial judge ought not to have found the intensity of the attack was inconsistent with intoxication because there was no evidence as to the effects of alcohol on a person’s ability to inflict fury. He further submits that the trial judge’s reliance on “selective memory” as a reason for rejecting Mr. Salomonie’s evidence was a legal error, since absorption and elimination rates of alcohol in impaired driving cases are an accepted science that could explain Mr.

Salomonie’s professed inability to remember the pivotal time period, and the trial judge could properly conclude otherwise only on the basis of case-specific expert evidence. He submits these errors led the trial judge to improperly infer that Mr. Salomonie had an intent to kill and a selective memory.

[24] The Crown respondent submits the trial judge did not err in making these findings of fact and credibility. The argument regardingabsorption and elimination rates arises for the first time on appeal; the trial judge was not obliged to take judicial notice of or otherwiseaccount for a specialist subject that had not been pleaded or argued before him. The Crown submits the trial judge’s conclusions aboutthe appellant’s actual intent are reasonably based in the evidence. [25] It was admitted that the appellant caused AB’s death, so intoxication necessarily arose in the context of mens rea.

As in anymurder trial, the Crown was required to prove that Mr. Salomonie either meant to cause death or meant to cause bodily harm, knowing itwas likely to cause death and being reckless whether death ensued: Criminal Code s. 229. As the trial judge explained: [at para 262] If the person who did the killing was so intoxicated that it is doubtful they were aware that what they were doing to the victim was likelyto cause death, then they would be found guilty of manslaughter only for unlawfully causing the victim’s death. In other words, he focused on whether Mr. Salomonie intended the consequence of his actions.

This query is commonly resolved byapplication of the “common sense inference”, which permits a trier of fact to conclude that “a person usually knows what the predictableconsequences of his or her actions are, and means to bring them about”: R v Walle, 2012 SCC 41 at paras 3 and 64.

The common senseinference must be linked to evidence of intoxication: Walle at para 64. [26] As the name of the inference suggests, the trier of fact can view the evidence through the lens of common sense. [27] Courts have frequently considered evidence of intoxication and its impact on mens rea without the assistance of experts: see, forexample, R v Seymour, (SCC), [1996] 2 SCR 252; R v Szanji, 2010 ONCA 316; R v Cooper, 2004 BCCA 540.

InSeymour, the Supreme Court stated at paras 19 and 21: When charging with respect to an offence which requires proof of a specific intent it will always be necessary to explain that, indetermining the accused’s state of mind at the time the offence was committed, jurors may draw the inference that sane and soberpersons intend the natural and probable consequences of their actions. Common sense dictates that people are usually able to foresee theconsequences of their actions.

Therefore, if a person acts in a manner which is likely to produce a certain result it generally will bereasonable to infer that the person foresaw the probable consequences of the act. In other words, if a person acted so as to producecertain predictable consequences, it may be inferred that the person intended those consequences. . . . The common sense inference as to intention, which may be drawn from actions of the accused, is simply a method used to determinethe accused’s actual intent.

That same common sense makes it readily apparent that evidence of intoxication will be a relevant factor inany consideration of that inference.

It follows that the jury must be instructed to take into account the evidence of the accused’sconsumption of alcohol or drugs, along with all the other evidence which is relevant to the accused’s intent, in determining whether, inall the circumstances, it would be appropriate to draw the permissible inference that the accused intended the natural consequences of hisactions. [28] Similarly, in R v Daley, 2007 SCC 53, the Supreme Court wrote at para 104: I do not think the trial judge must take pains to tell the jury they are not bound to draw the inference where there is evidence of asignificant degree of intoxication, as this is a matter of common sense.

In this respect, I approve of the comments made by Huddart J.A.in R. v. Courtereille (2001), 2001 BCCA 17 , 40 C.R. (5th) 338 (B.C.C.A.), at para. 32: [The common sense inference] does not die with the first drink. The collective common sense and knowledge of life possessed bytwelve jurors is of fundamental importance to the unique value of juries. . . . It is equally good sense and common experience that theeffect of alcohol on thought processes is a continuum. . . .

The more intoxicated a person becomes, the greater the likelihood that drinkwill result first in uninhibited conduct, and ultimately in unintended conduct. It is proper to remind the jury that they may use theircommon sense with respect to this, even if intoxication is advanced, provided the reminder includes the admonition that the inference ispermissive and subject to a consideration of the evidence of intoxication. [29] The ability to see consequences lies on a continuum: R v Buzzanga (1979), (ON CA), 25 OR (2d) 705 (CA) at

paras 52-53. A very intoxicated person may not foresee death from a single blow in a barroom brawl, while even a very intoxicatedperson can foresee death from firing a shotgun within a few inches of a person’s head: R v Lemky, (SCC), [1996] 1SCR 757 at para 23; R v Robinson, (SCC), [1996] 1 SCR 683 at para 52. [30] Here, the trial judge concluded that [para 294] “It would have been impossible for [Mr.

Salomonie] to repeatedly pummel [AB]with his fists and with a hockey stick to the extent that he did and to target so many blows to the most vulnerable part of her body, herhead, without knowing what he was doing was deadly.” This conclusion was open to him to draw, as explained in Walle at para 67: If, however, there is no evidence that could realistically impact on whether the accused had the requisite mental state at the time of theoffence, or if the pertinent evidence does not leave the jury in a state of reasonable doubt about the accused’s intent, then the jury mayproperly resort to the common sense inference in deciding whether intent has been proved.

No reviewable error has been established in the trial judge’s application of the common sense inference despite the absence of expertevidence. [31] We agree with the Crown that the trial judge did not err by failing to account for the rates of absorption and elimination of alcoholand the resulting effects on intoxication at a given time. While a substantial body of jurisprudence on impaired driving recognizes thisfield of specialized study, it would have been improper for the trial judge to use generalities to shape his inference-drawing absentevidence or argument.

The inference the appellant invokes on appeal – that his absorption and elimination rates combined to cause a lackof memory during a period most convenient to him – is nothing but a hopeful guess. The trial judge’s conclusions on Mr. Salomonie’scredibility are entitled to deference. VII. DID THE TRIAL JUDGE ERR IN FINDING FIRST DEGREE MURDER? [32] With respect to the conclusion that the appellant murdered the victim while committing a sexual assault, Mr.

Salomonie submitsthe circumstantial evidence does not lead to the sole inference that a sexual assault occurred, and the trial judge erred in failing toconsider other rational inferences other than sexual assault. Alternatively, if there was a sexual assault, there was no evidence that it waspart of a single transaction with the homicide. [33] The Crown respondent submits that the trial judge correctly inferred a sexual assault had been committed based on indirect butuncontroverted evidence.

The appellant has identified neither an extricable error of law, nor a palpable and overriding error of fact, thatwould permit this court to overturn the trial judge’s conclusion on first degree murder. [34] Relying on R v Villaroman, 2016 SCC 33, the appellant submits that the evidence gives rise to inferences other than that a sexualassault was committed.

As the Supreme Court held at para 30, “an inference of guilt drawn from circumstantial evidence should be theonly reasonable inference that such evidence permits.” [35] To explain the transferred blood, the appellant suggests that, for instance, A killer could be trying to hide clothing evidence. A killer may have made those transfers during rough handling of the body during aviolent death, as the killing could have taken place following a consensual sexual encounter where the victim’s pants remained partly onher legs.

AB could have had consensual sex with him at one point in time while her pants remained partially on, while at another time anunnamed killer could have touched her clothing in an attempt to hide it. [36] The trial judge accurately observed that whether Mr. Salomonie and AB ever engaged in consensual sexual activity was irrelevant[para 318-9]. The issue was whether the Crown had proved that the appellant sexually touched AB without her consent: “For example, if[Mr. Salomonie] pulled down [AB’s] pants, or touched her sexually in any way after he beat her, then this would constitute a sexualassault” [para 318].

The blood stains showed that her jeans and underwear were pulled down by an assailant with bloody hands [para325]. The blood along the length of both her buttocks, along with the other physical evidence, led the trial judge to find there was onlyone reasonable conclusion: that AB had been “beaten and sexually manhandled” [para 329]. We agree.

[37] The appellant’s suggested alternative inferences are not reasonable ones, and they are not capable of undermining the trial judge’sinference that Mr. Salomonie sexually assaulted AB. [38] This leads to the appellant’s alternative argument: that the trial judge erred in convicting him of first degree murder. [39] The Criminal Code at s 231(5) provides that murder is first degree where the offender causes the victim’s death “while committingor attempting to commit” any of six specified offences, collectively known as “crimes of domination”.

Sexual assault is one such crime:s 231(5)(b). “The provision reflects Parliament’s intention to ‘treat murders committed in connection with crimes of domination asparticularly blameworthy and deserving of more severe punishment’ (R v Pritchard, 2008 SCC 59, [2008] 3 SCR 195 at para 19; see also[R v] Paré, [ (SCC), [1987] 2 SCR 618] at p 633)”: R v Magoon, 2018 SCC 14 at para 61. [40] To establish guilt of first degree murder under s 231(5), the Crown must prove five criteria beyond a reasonable doubt: see Magoonat para 17, citing R v Harbottle, (SCC), [1993] 3 SCR 306 at 325.

The appellant alleges error in the application of thefifth criterion: whether the sexual assault and the murder were part of the same transaction. [41] The fifth criterion requires that the death be caused while committing sexual assault, as part of the same series of events.

The focuson an ongoing sequence is designed to animate the policy behind s 231(5): “where a murder is committed by someone already abusinghis power by illegally dominating another, the murder should be treated as an exceptionally serious crime”: R v Paré, (SCC), [1987] 2 SCR 618 at paras 33-34. [42] The appellant suggests that the trial judge made no conclusive finding on the nature and timing of the sexual assault, and thattherefore, there is no way to assess whether it was part of a continuous transaction with the murder.

The premise of this argument isflawed: the trial judge found that the appellant committed a sexual assault when he removed the victim’s pants and underwear. [43] The trial judge also found that the victim bore only one defensive injury because she had rapidly been beaten past the point ofresisting [para 290]; that her pants were still on when her upper-body wounds were bleeding [paras 91, 324]; that they were removed byan assailant with bloody hands [para 325]; and that the victim would not have died instantaneously [para 79]. Her exposed buttocks borelong, matching swathes of blood [para 328].

It stands to reason that blood is most readily transferred while it is still wet. [44] The trial judge was not required to determine the timing of the sexual assault. The law is clear that the sequence of the sexualassault and murder is irrelevant. The words “while committing” in s 231(5) do not require that the predicate offence and the murder hadto be committed simultaneously. The simultaneity approach was rejected in Paré, where Wilson J stated at para 30: A second difficulty with the exactly simultaneous approach is that it leads to distinctions that are arbitrary and irrational.

In the presentcase, had the respondent strangled his victim two minutes earlier than he did, his guilt of first degree murder would be beyond dispute.The exactly simultaneous approach would have us conclude that the two minutes he spent contemplating his next move had the effect ofreducing his offence to one of second degree murder. This would be a strange result. The crime is no less serious in the latter case than inthe former; indeed, if anything, the latter crime is more serious since it involves some element of deliberation. An

interpretation of s.214(5) [now 231(5)] that runs contrary to common sense is not to be adopted if a reasonable alternative is available. [45] Nor is it a requirement that the predicate offence occur before the murder. In R v Richer (1993), (AB CA), 82CCC (3d) 385 at 394, 141 AR 116 (CA), aff’d (SCC), [1994] 2 SCR 486, Fraser CJA stated: Were it necessary to determine whether sexual activity with a murder victim following the moment of death could ever constitute firstdegree murder, I would be inclined to the view taken by the Saskatchewan Court of Appeal in R. v.

Ganton (1992), (SK CA), 77 C.C.C. (3d) 259, 32 W.A.C. 126, 105 Sask. R. 126. Wakeling J.A. concluded that a murder in these circumstances couldfall within the parameters of s. 231(5)(

b) providing the Crown had established the necessary linkage between the two acts. I tend to sharehis view. That is because I have difficulty with the proposition that a murderer intent on silencing his victim or rendering her compliantfor sexual activity should be able to argue that murder in these circumstances is not first degree murder simply because his victim diedby his hand before he could complete, or for that matter, begin the sexual assault. This entire debate on whether the precise moment of the victim’s death preceded or followed the precise moment of sexual assault ishighly artificial.

This “chicken and egg” approach to which came first, the murder or the sexual assault, obscures the essence of the

rationale for Parliament’s decision to classify a murder committed during a sexual assault as first degree. That rationale does not involvepunishing a person for committing two separate crimes in a specific order—first sexual assault, then murder—but rather punishing aperson because he has committed both in circumstances in which a temporal and causal connection exists between the two. What isimportant is not the order of commission but the linkage between the two crimes.

When the required linkage is found to exist, it is thetwo crimes—sexual assault and murder—committed together, regardless of the order, which represent the ultimate exploitation of theposition of power over a victim and arguably mandate a conviction for first degree murder.

See also R v Westergard (2004) 184 OAC 281; R v Plewes, 2000 BCCA 278. [46] As stated by Steel JA in R v Muchikekwanape (2002), 2002 MBCA 78 , 166 CCC (3d) 144 at 172-173 (Man CA), “Thecontinuous transaction concept adopted by the Supreme Court in Paré . . . prevents the law from being brought into disrepute byrequiring a debate over the precise second of the victim’s death.” [47] We find no reviewable error in the trial judge’s conclusion that the appellant caused AB’s death while committing a sexual assaultupon her [para 330]. VIII.

CONCLUSION [48] As indicated at the conclusion of the hearing, the appeal is dismissed. Appeal heard on February 11, 2020. Memorandum filed at Iqaluit, Nunavut this 9th day of March, 2020 Slatter J.A. Authorized to sign for: Antonio J.A. Feehan J.A. Appearances:

J. S. Cowan for the Appellant M. Welch for the Respondent