R. v. Kovic, 2023 NUCJ 26

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Kovic, 2023 NUCJ 26 Date: 20231124 Docket: 08-19-832 Registry: Iqaluit Crown: His Majesty the King -and- Accused: Jordan Kovic __________________________________________________________________ Before: The Honourable Madam Justice Susan Charlesworth Counsel (Crown): Counsel (Accused): E. Baasch E. Tache-Green M. Shadley Location Heard: Date Heard: Iqaluit, Nunavut November 20, 2023 Matters: Decision in regards to charges under Criminal Code of Canada, RSC 1985, c C- 46, s. 239(1) (

b) REASONS FOR DECISION (DELIVERED ORALLY) I. INTRODUCTION [ 1 ] Following attacks in downtown Iqaluit on two individuals that took place on the evening of December 27 and early morning hours of December 28, 2019, Jordan Kovic was charged with:

Attempt to murder Nathaniel Alaralak by repeatedly striking him and stomping on his head while unconscious and driving over him witha snowmobile, contrary to s. 239(1)(

b) of the Criminal Code. [2] He pleaded not guilty to that charge, and the trial proceeded before me. [3] Mr. Kovic was also charged with three other offences: assault with a weapon, to wit a snowmobile, on Leevity Paneak; being atlarge on a recognizance and failing to comply with the requirement to keep the peace and be of good behaviour by assaulting Mr.Paneak; and wounding Mr. Alaralak, thereby committing aggravated assault. [4] Mr.

Kovic pled guilty to these three charges at the start of the trial. [5] The only issue before me is whether the evidence tendered at trial has proven beyond a reasonable doubt that Mr. Kovic intendedto kill Mr. Alaralak on the night of the vicious attack. If it does, I must find Mr. Kovic guilty of attempted murder pursuant to s. 239 ofthe Criminal Code. [6] If I am not satisfied beyond a reasonable doubt that Mr. Kovic’s intended purpose for the attack on the night of December 27,2019 was to kill Mr. Alaralak, I must find him not guilty of attempted murder. [7] For the reasons that follow, I find Mr.

Kovic not guilty of attempted murder. I do find him guilty of the three charges to which hehas entered guilty pleas. [8] I will now briefly provide my reasons. II. BRIEF OVERVIEW OF THE FACTS AND HISTORY OFTHE FILE [9] The trial on the charge of attempted murder commenced August 23 and proceeded to August 31, 2022. It then returned onSeptember 22, 2022 and was adjourned to November 18, 2022. Unusually, on that day, the Court was asked by the Defence to grant avery lengthy adjournment because Mr. Kovic’s chosen counsel was not going to be available for approximately a year due to a maternityleave. [10] Mr.

Kovic was insistent that he only wanted to proceed with his choice of counsel and was content to delay the conclusion of thetrial until his counsel returned to work. This Court has an obligation to adjudicate matters in as timely a manner as possible, and inaccordance with the time frames found to be in Constitutional compliance by the Supreme Court in R v. Jordan, 2016 SCC 27 ,[2016] 1 SCR 631. [11] However, the Court also has an obligation to respect the solicitor client relationship and to not interfere with it.

Confident Mr.Kovic understood he was waiving his Constitutional right to a speedy trial in consideration of retaining the representation of his desiredlawyer, I reluctantly granted the adjournment. The trial reconvened with evidence being called on November 14 and 15, 2023. I heardclosing submissions of counsel on November 20, 2023. I am providing my reasons on November 24, 2023. [12] There is no dispute about much of what physically happened on the night of December 27 and early morning of December 28,2019.

Security camera footage, which captured the attacks from various vantage points and to various degrees, was viewed in Court. Thefootage came from different buildings in downtown Iqaluit where the attacks took place. I viewed video of the incidents captured on thecameras of the Iqaluit Men’s Shelter, the Beer and Wine Store (right beside the Chart Room, a downtown bar), and a residential homelocated at 1019 in Iqaluit, very close to the Men’s Shelter.

[ 13 ] In addition to the security camera footage I viewed, I heard testimony from the following Crown witnesses: staff of the Men’s Shelter; police officers who dealt with Mr. Kovic that night; a resident at house 1019; and a witness to part of the assault. [ 14 ] I also heard evidence from the following witnesses called by the Defence: Dr. Monty Nelson, a specialist in Fetal Alcohol Spectrum Disorder (FASD), and Mr. Kovic. [ 15 ] In reply to Dr. Nelson’s evidence, the Crown called a forensic psychiatrist, Dr. Hy Bloom. III.

THE FACTS [ 16 ] On December 27, 2019, Jordan Kovic went to the Chart Room in Iqaluit in the late evening. While outside smoking a cigarette, Mr. Kovic spoke to Mr. Paneak who Mr. Kovic thought he had seen earlier in the day, possibly trying to tamper with Mr. Kovic’s snowmobile. A physical confrontation outside the Chart Room ensued. Mr. Paneak ran off and Mr. Kovic fell while trying to kick out at him. It appears that both men were somewhat intoxicated. Mr. Paneak ran straight ahead, in the direction of the Men’s Shelter, while Mr. Kovic walked away more slowly, to the right. [ 17 ] Mr.

Kovic testified that he had been drinking alcohol for most of the day on December 27, 2019. He also testified that he smoked marijuana and took cocaine that day. After the altercation with Mr. Paneak, Mr. Kovic felt intoxicated but got on his snowmobile and started to drive home. He soon felt something hit him on the back of his head. He turned and saw Mr. Paneak and challenged him to a fight. Mr. Paneak ran away. For Mr. Kovic, this was the third time Mr. Paneak had provoked him that day and he became very angry. [ 18 ] Video shows that Mr. Kovic caught up with Mr. Paneak outside house 1019. He hit Mr.

Paneak with the snowmobile, causing him to fall. Mr. Alaralak arrived on the scene shortly after this happened. Mr. Kovic was assaulting Mr. Paneak by punching and kicking him. Most of this altercation is caught by two of the cameras at house 1019. Mr. Kovic testified that Mr. Alaralak tried to pull him away from Mr. Paneak. This shocked Mr. Kovic and made him feel threatened. The videos confirm that Mr. Alaralak was standing close to the other two men, and that Mr. Paneak was able to run away toward the Men’s Shelter. [ 19 ] Neither Mr. Paneak nor Mr. Alaralak were called as witnesses at the trial.

Their version of events was not tendered into evidence. I have derived the preceding from what I viewed on the security camera footage. [ 20 ] The videos show part of the attack by Mr. Kovic on Mr. Alaralak that happened after Mr. Paneak ran away. Mr. Alaralak was lying on the ground outside house 1019, and Mr. Kovic stomped on his head 16 times (some of the kicks may have missed). Mr. Kovic also punched him in the head a few times (some punches may have been pulled). Mr. Alaralak appears to be unconscious shortly after the attack started. [ 21 ] Charlie Papatsie, who lived at the Men’s Shelter, gave evidence.

Mr. Papatsie and two others were under house 1019 and saw Mr. Kovic (who he did not know) stomping on the head of another person, who he later learned was Mr. Alaralak, “way more than once” although he didn’t know how many times. He also heard Mr. Kovic say words to the effect of, “You guys tried to steal my skidoo!”. Mr. Papatsie described Mr. Kovic as being “hard angry” or in a rage during the stomping. [ 22 ] Mr. Kovic then got on his skidoo again and went to the Men’s Shelter, which he tried to enter to get at Mr. Paneak. Staff at the Shelter gave evidence that Mr.

Kovic was yelling and angry and being aggressive and they prevented him from coming in. Mr. Kovic left on his skidoo, and videos confirmed he went back to where Mr. Alaralak was still lying. This time, Mr. Kovic ran over Mr. Alaralak with the skidoo and then kicked his head again and punched him. [ 23 ] Mr. Kovic testified that he only remembers kicking Mr. Alaralak twice, and he doesn’t know when those kicks happened. They may have happened at this time, because after it, Mr. Kovic returned to the Shelter where Mr. Ikkidluak, one of the staff, said he was “a

lot calmer” than the first time he was there. There were only a few minutes in between. [24] Mr. Kovic left again and returned to Mr. Alaralak; he laid him on the skidoo and drove him to the Shelter. Mr. Ikkidluak said thistime, Mr. Kovic was driving carefully and placed Mr. Alaralak gently on the ground. [25] Mr. Kovic moved the skidoo onto the road and returned to the Men’s Shelter property, where he stayed until the police arrived.When Constable Bonnet arrived at the scene, he was pointed out by others and came towards her. She also testified that Mr.

Kovicseemed to be calm, throughout her dealings with him. [26] Dr. Monty Nelson gave evidence about his interactions with Mr. Kovic, the material he was given on Mr. Kovic’s early life andthe testing he did. Dr. Nelson’s opinion is that Mr. Kovic was born with FASD, which is a condition that affects the brains of childrenwhose mothers consume alcohol during pregnancy. Dr. Bloom confirmed that Mr. Kovic likely did have FASD.

The specific braineffects caused by maternal drinking vary considerably, depending on amount of alcohol consumed and when during the pregnancy.Because of behavioural issues and problems in his home, Mr. Kovic was sent south for a large part of his childhood. IV. ATTEMPTED MURDER [27] To the uninitiated, the charge of attempted murder may be perplexing at first instance. Especially if too much emphasis is placedon the word “murder” in the title of the offence. [28] While a conviction for murder under s. 229 can be found where a person, who causes the death of a human being, (

i) means tocause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensuesor not, a conviction on attempted murder can only be found where it has been proven beyond a reasonable doubt that the accusedintended to murder his victim. [29] The Supreme Court of Canada in the case of R. v.

Ancio, (SCC), [1984] 1 S.C.R. 225 made clear that for theoffence of attempted murder the accused must specifically intend to kill the victim; no lesser intent is allowed for a conviction ofattempted murder (even though, as I have just stated, lesser intents may result in a murder conviction if the victim dies). [30] This important distinction means that had Mr. Alaralak died as a result of the attack on December 27, it is plausible that Mr. Koviccould have been charged and convicted of second-degree murder as he would have caused him bodily harm that he knew was likely tocause death. As it was not proven that Mr.

Kovic set out during the attack to kill Mr. Alaralak, a conviction on attempted murder is notfound. [31] In this case, there is no doubt that Mr. Kovic assaulted Mr. Alaralak and could have killed him. I am satisfied that the consumptionof alcohol and ingestion of marijuana and cocaine, combined with a myriad of FASD cognitive impairments, resulted in several terriblechoices being made by Mr. Kovic on the evening of December 27. However, I am also satisfied Mr. Kovic, while in a rage and upsetabout the perceived slights from Mr. Paneak relating to the snow machine and the object thrown at Mr.

Kovic’s head, intentionallyattacked Mr. Paneak prior to transferring his anger to Mr. Alaralak who had come to Mr. Paneak’s defence. Mr. Kovic’s anger anddiminished impulse control resulted in a horrendous attack on Mr. Alaralak that must attract significant criminal law consequences. [32] I am not satisfied however that Mr. Kovic intended to kill Mr. Alaralak. [33] There is no question FASD and substance abuse are plagues in Nunavut and played a role on the evening of December 27, 2019.

The issue of whether these impairments frustrated the formation of the specific intent necessary to be found guilty of murder or attemptedmurder is unnecessary for me to decide. I am not satisfied, beyond a reasonable doubt, based on the evidence tendered at trial, that whenMr. Kovic turned his anger on Mr. Alaralak for coming to Mr. Paneak’s aid, he did so to kill him. There is no doubt Mr. Kovic wantedto significantly hurt Mr. Alaralak, there is significant doubt that he intended to kill him.

[ 34 ] Mr. Kovic is guilty of the offences to which he has pled guilty. I will now hear sentencing submissions. Dated at the City of Iqaluit this 24th day of November, 2023 ___________________ Justice S. Charlesworth Nunavut Court of Justice