R. v. Lyta, 2023 NUCJ 8

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Lyta, 2023 NUCJ 8 Date: 20230307 Docket: 08-20-221 Registry: Iqaluit Crown: His Majesty the King -and- Accused: Brandon Lyta __________________________________________________________________ Before: Chief Justice Sharkey Counsel (Crown): Counsel (Accused): F. Alibhai S. Hayward S. Barnes A. Crowe C. Merry Location Heard: Date Heard: Iqaluit, Nunavut August 2-5, 8, and 10 2022 Matters: Trial decision regarding a charge under Criminal Code of Canada, RSC 1985, c C- 46, ss. 235 REASONS FOR DECISION (NOTE: This document may have been edited for publication) Table of Contents

I. OVERVIEW .. 3 II. BACKGROUND . 4 A. The Basic Facts . 4 B. Key Crown Witnesses . 7 i. Lucassie Nutaraluk . 7 ii. Philip Ningeonak . 10 iii. Johnny Michael 12 iv. Brianna Kunnuk . 13 III. MR. LYTA’S DEALINGS WITH THE POLICE . 14 IV. Mr. LYTA’S INTERVIEW WITH THE POLICE . 15 V. MR. LYTA ACCOMPANIES POLICE TO THE SCENE OF THE INCIDENT WITH MR. MICHAEL . 18 VI. THE SEARCHES . 19 VII. MR. LYTA’S CELLPHONE IS RECOVERED . 22 VIII. MR. LYTA’S INJURIES . 22 IX. MR. MICHAEL’S CRIMINAL RECORD . 23 X. MR. LYTA’S CRIMINAL RECORD . 23 XI. MR LYTA’S TESTIMONY UNDER OATH . 23 A. In Chief and Re-Examination Testimony . 23 B.

Cross-Examination . 25 XII. THE LAW .. 30 A. Murder and Manslaughter 30 B. Intoxication . 30 C. Self-defence . 31 D. Assessing the Accused’s Testimony . 33 XIII. THE POSTION OF THE PARTIES . 33 A. The Crown . 33 B. The Defence . 35 XIV. ANALYSIS . 40 I. OVERVIEW [ 1 ] Brandon Lyta was charged with second degree murder for causing the death of Levi Michael. The deceased, Mr. Michael, was 29 years old at the time, Mr. Lyta was 23 years of age. [ 2 ] There was no question that Mr. Lyta killed Mr. Michael. He did.

He claimed, however – in a statement to the police and in his own testimony - that he was acting in self-defence. [ 3 ] Mr. Michael died as a result of a single stab wound from a knife. Mr. Lyta admitted to inflicting this wound.

[ 4 ] On the evening of 14 May 2020, Mr. Lyta, Mr. Michael, and two other men were at Mr. Michael’s apartment, playing poker and drinking. An argument and then a scuffle broke out between Mr. Lyta and the others. Mr. Lyta grabbed a knife from the kitchen to ward the others off. Mr. Lyta was told to leave – which he did. But he took the poker pot, and the knife with him as well. [ 5 ] Mr. Lyta claimed that Mr. Michael chased after him outside and attacked him with a long ice chisel. Mr.

Lyta said he lashed out with the knife in order to prevent being hit in the head (and possibly killed) by the metal end of the ice chisel. [ 6 ] No ice chisel was ever found, and there were no witnesses to the event. [ 7 ] The Crown agreed that there was at least an air of reality to Mr. Lyta’s claim of self-defence. More specifically, the Crown said that if I accepted Mr. Lyta’s claim as true, or if I was left with a reasonable doubt about his story, then he should be acquitted. [ 8 ] The Crown’s position was, however, that Mr. Lyta’s story was a lie - that there was no ice chisel, at all.

The Crown says that Mr. Lyta stabbed an unarmed man who had confronted him. [ 9 ] The Crown pointed out that no chisel was ever found despite numerous searches by the police, and that Mr. Lyta had told a number of lies to the police. [ 10 ] Thus, said the Crown, Mr. Lyta’s story should be rejected and he should be convicted of murder, or at least manslaughter. [ 11 ] I found Mr. Lyta’s story plausible, particularly in light of injuries he suffered and which were documented. [ 12 ] Accordingly, I acquitted him on the charge of second degree murder. II. BACKGROUND A.

The Basic Facts [ 13 ] It was around 2:00am on Friday 15 May 2020. A taxi van was parked in front of building 4145 in Iqaluit, waiting on a fare. Suddenly a man ran onto the road and towards the taxi. He was in great distress, and yelling “I just got stabbed.” [ 14 ] The man was Levi Michael. [ 15 ] Mr. Michael jumped into the back seat of the taxi. The driver immediately put his foot on the gas and within 2 minutes arrived at Qikiqtani General Hospital. [ 16 ] The medical staff then took over. They noticed that Mr. Michael was slumped unconscious over the back seat of the van in a pool of blood. [ 17 ] As Mr.

Michael was taken by stretcher into the hospital, the emergency team found he had no pulse. His heart had already stopped. And a large stab wound was noted on the left side of his chest, and on his left arm. [ 18 ] Dr. Michael Saba was the surgeon on the scene when Mr. Michael was brought in. He was with Mr. Michael within one minute of being summoned by the emergency physician on the scene. [ 19 ] Dr. Saba testified in detail how he tried to save Mr. Michael’s life. He tried a surgical intervention and cardiac (heart) massage was initiated. But the heart was empty and not filling up with blood. [ 20 ] Dr.

Saba found that an injury to the left lung had resulted in all the major blood vessels to the lungs being severed. Blood loss was

already massive. [ 21 ] The surgical team was unable to regain vital signs. Mr. Michael was declared dead at 2:31am Friday 15 May 2020. [ 22 ] Dr. Alfredo Walker, was the pathologist who performed the autopsy on Levi Michael. He testified in detail how Mr. Michael died from a single stab wound. [ 23 ] Dr. Walker said that a knife (or comparable sharp object) went first into the back of Mr. Michael’s upper left arm, then through the arm itself, and finally into the back part of the left torso, piercing his lung. [ 24 ] Dr. Walker could not say what position Mr.

Michael was in when he received the fatal stab wound, that is, whether he was standing, lying down, or falling down. [ 25 ] The toxicology report showed that at the time of death Mr. Michael had a blood alcohol level of 134 mg% in his blood, and 196 mg% in his urine. The legal drunk driving limit is 80 mg % above which the driver is committing an offence. [ 26 ] A level of between 100 mg% to 150 mg % is indicative of mild to moderate intoxication; a level of between 150 mg% to 300 mg % is indicative of moderate to severe intoxication. [ 27 ] Before the stabbing, on the evening of Thursday 15 May 2020, Mr.

Michael was at home, at his apartment, building 4145 Unit 3A, in Iqaluit. [ 28 ] Unit 3A is on the top floor of a nine-unit multiplex. Entry and exit are normally made through the back door which opens onto a porch.

As you exit the unit you would descent the stairs and pass by the neighbor’s porches below, and from there into the rear parking area. [ 29 ] It is quite normal as well that various implements such as snow shovels, outdoor equipment, and storage bins, are kept in full view on the porches. [ 30 ] This is a high-density populated area: next door to 4145 is 4149, an identical 9 unit multiplex; and across the street from these two buildings are two other apartment complexes. [ 31 ] The area is bordered by Dead Dog Lake to the north, and the Apex Quick Stop Convenience & Grocery store to the south. [ 32 ] Particularly in May, when the weather is nice, there is pedestrian traffic between these apartment buildings and the Quick Stop, a few minutes away. [ 33 ] On 15 May 2020 Levi Michael (Levi) was at home in the afternoon with his friend Phillip Ningeonak.

Later in the evening they were joined by Levi’s friend Lucassie Nutaraluk, and Lucassie’s friend, Brandon Lyta (Brandon). [ 34 ] Lucassie and Brandon were living at the men’s shelter. They had CERB money so they had bought some beer to bring over to Levi’s place. A card game started and people were (with the possible exception of Philip) getting pretty drunk. [ 35 ] Early into Friday morning 15 May, a ruckus (or fight of sorts) broke out, during which time Brandon grabbed a knife the kitchen sink area and threatened the others.

The knife had an approximate 7-inch serrated blade. [ 36 ] Brandon was told to leave – which he did, out the back door and down the steps. He took the knife with him when he left, along with the money from the poker pot, the remaining beer, and some marijuana. [ 37 ] A few minutes later, Levi put on his shoes and left in pursuit of Brandon, also out the back door. Levi had nothing in his hands when he left the apartment. [ 38 ] Levi never came back. Philip went out to look for Levi but saw nothing; he also texted Levi but got no response.

[ 39 ] Something had happened between Levi and Brandon at the rear of 4145 or 4149 – because this is the area from which Levi emerged to seek help from the taxi driver. [ 40 ] What happened was that Brandon stabbed Levi. No one saw what happened. There were no independent witnesses. Just Levi and Brandon. [ 41 ] Levi ran to the taxi after being stabbed. And since he passed away there is only Brandon’s story about what happened. [ 42 ] Brandon told the police – and testified under oath at the trial – that he was acting in self-defence when he stabbed Levi.

He said that Levi came after him with a 4- or 5-foot-long ice chisel or tuuq – something with a square metal blade at the end. [ 43 ] Brandon said Levi at first held this ice chisel up like a harpoon as if to throw it, but then charged him and began to swing at his head.

Brandon said that in order to defend himself he stabbed Levi with the knife, and that Levi then ran away to the taxi. [ 44 ] Brandon said that after the stabbing he walked some 200 feet away from the buildings and threw the ice chisel into a ditch and the knife into a field a short distance away. [ 45 ] Brandon said he then walked to a cousin’s house for a short time where he drank some of his beer and smoked some weed. From there he said he walked to another cousin’s house where he drank more beer and spent the night. [ 46 ] The next morning his cousin’s family said that Levi Michael had died.

Brandon said this freaked him out, and that he walked around in a daze, going by the beach where he said he contemplated suicide. [ 47 ] By mid-afternoon his cousin texted and told him that the police were looking for him.

Brandon then decided to go to the police himself, but he refused to tell them what happened, and so after some brief questioning they let him go. [ 48 ] Eventually, by Saturday night 16 May, the police had enough evidence to charge Brandon with Levi’s murder, and he was arrested at the men’s shelter. [ 49 ] The police conducted a number of searches in the area around 4145 but never found any ice chisel nor any knife. B. Key Crown Witnesses i. Lucassie Nutaraluk [ 50 ] Lucassie Nutaraluk (Lucassie), 30 years of age, testified that he was born and raised in Iqaluit and grew up with Levi Michael.

They went to the same school and had been friendly with each other for about 15 years. He also knew Levi by his nickname, ‘Leroy.’ [ 51 ] Lucassie had known Brandon Lyta for about 5 months as they both lived at the men’s shelter in Iqaluit. [ 52 ] Lucassie described Levi to be about 5’ 8” in height and 175-180 pounds, and Brandon to be 6’ plus and 200 pounds plus. [ 53 ] Lucassie testified that around 4:30pm on Thursday 14 May, Levi texted him to see if he could bring some beer and come over.

Lucassie asked if it was OK to bring Brandon along, and Levi agreed. [ 54 ] Lucassie and Brandon then bought 48 beers between them which they put in Brandon’s backpack and brought to Levi’s place sometime between 7 and 8pm. Philip Ningeonak, a friend of Levi’s, was already there, sitting on the couch, playing video games and smoking cannabis. [ 55 ] Eventually, Levi, Brandon, and Lucassie started playing poker. Phillip had no money so he just continued to play video games. The poker game went on for hours – roughly between 9pm Thursday 14 May, until around 2am Friday 15 May.

[ 56 ] The three of them drank a lot of beer as they played. Levi and Brandon also smoked some grass. Lucassie estimated that Brandon was the most intoxicated, followed by Levi, and then himself. [ 57 ] Lucassie testified that towards then end of the evening Brandon was winning and had eliminated Levi from the game, but that he got mad when Lucassie offered to buy Levi back in.

Lucassie said that Brandon was so upset that shoved the chips all over the table and grabbed the $80 in the pot. [ 58 ] At this point Lucassie said he reached for Brandon’s backpack in order to retrieve his own remaining beers and put them in the fridge. Lucassie said he was going towards the fridge when Brandon grabbed him and ‘wrestled’ him down to the floor. [ 59 ] Lucassie testified that he tried to get up but Brandon wrestled him down again while at the same time reaching for a knife on the kitchen counter.

Lucassie said it was an eight-inch steak knife – not however, a chef’s knife with a wide blade, but rather a knife used to cut an individual portion with a serrated or rippled edge. [ 60 ] Lucassie testified that Brandon was standing over him with the knife in his hand. Lucassie said that “I didn’t want to risk getting stabbed, so I just lay on the floor, ‘cuz I know he [Brandon] had a lot of drinks.” [ 61 ] Lucassie testified that it was at this point that Levi intervened.

Levi told Brandon to calm down and respect him because it was his place. [ 62 ] Lucassie said Brandon then puts his boots on, grabbed the poker pot and his beers, and was about to leave. Before leaving, however, Lucassie said Brandon directed a comment towards Levi to the effect “I’m a Lyta, I’m a crazy person.” [ 63 ] Lucassie testified that Levi simply continued to ask Brandon to please leave – which he (Brandon) did without incident out the back door, the knife still in his hand, along with his backpack containing the beer, cannabis, and the money from the poker pot.

Lucassie said he was just getting up off the floor when Brandon left. [ 64 ] Lucassie said that Philip Ningeonak was not involved, at all, in the altercation, and had remained playing video games. [ 65 ] Lucassie said that shortly after Brandon left (within 2 minutes), Levi left, also out the back door. Levi was not carrying anything (such as a weapon) when he followed Brandon out. [ 66 ] According to Lucassie, Levi did not appear to be angry but just wanted to get the situation under control.

Lucassie thought Levi followed Brandon to calm him down or alternatively to recover the money Brandon had taken. [ 67 ] Levi did not return to the apartment and that was the last Lucassie saw of him. Lucassie did, however, see Brandon at the shelter a day or two later.

Lucassie testified that Brandon “told me he went to the police station for an hour, and the time I saw him again he told me he had to go back and he was saying … he threw his life away and saying it was self-defence.” [ 68 ] Lucassie was asked by the prosecutor whether, in all the times he had come to Levi’s house, he had ever seen a harpoon, or an ice pick or a crowbar; Lucassie said he had not. [ 69 ] At the same time, however, Lucassie was shown a photo of Levi’s porch which was taken later by the RCMP on 15 May. The photos depict a shovel, a broom or shovel handle, and some other non-utilitarian items.

He identified the items in the photo, in particular the shovels, but said quote “I never saw them that night.” {Court Exhibit P-2, photo 55} ii. Philip Ningeonak [ 70 ] Philip Ningeonak (Philip), 36, was a long-time best friend to Levi Michael. He also knew Levi by his nickname, ‘Leroy.’ Philip had visited Levi at 4145 3A at least twenty times. On Thursday 15 May, Philip came over to Levi’s in the afternoon and the two of them played video games and smoked cannabis. [ 71 ] Later, around 7pm two other guests arrived: a ”skinny guy” (Lucassie), and a “big dude” (Brandon). They brought beer with them.

Philip had never met Brandan prior to that night.

[ 72 ] Over the course of the evening Levi, Lucassie, and Brandon drank beer, but Philip did not; he continued only to smoke cannabis and drink coffee, sharing some of the cannabis with Levi and Lucassie. [ 73 ] Philip testified that he was seated on the couch in the living room facing the TV and playing video games. He said Levi, Lucassie and Brandon set up a poker game behind him on the other side of the room, in the kitchen area. [ 74 ] The three of them (Lucassie, Levi, and Brandon) then played poker and drank. Philip did not join in because he was both unfamiliar with the game and also broke.

He continued to play video games on the other side of the room with his back to them. [ 75 ] Philip testified that late into the evening, while he was still playing games, he heard a ‘ruckus’ break out behind him (in the kitchen area) between Brandon and Lucassie. [ 76 ] The ruckus was about beers – with Lucassie and Brandon each claiming ownership of beer, exchanging words such as “that’s my beer !…no it’s my beer !” [ 77 ] Philip testified that Levi stepped in to calm things down. Levi told them several times to “shut the fuck up” and to stop fighting and to respect his place.

Philip testified that at one point Brandon said something to the effect that “he was a jailbird or something like that.” [ 78 ] Philip testified that Levi’s intervention worked. He said both Brandon and Lucassie respected Levi and stopped arguing or fighting. Levi also asked or told Brandon to respect his place and to leave. [ 79 ] Philip testified that Brandon said “I’m respecting, I’m leaving” and left out the back door without incident, taking his backpack with him. [ 80 ] Philip did not remember Brandon saying anything else before he left.

And Philip did not see if Brandon had anything else (except the backpack) in his hands when he left. [ 81 ] Philip testified he took no

part in the altercation between Lucassie and Brandon - that it all happened behind him as he was seated on the couch playing video games. [ 82 ] Philip also said that the poker players were drunk, but he did not see anyone actually physically attack or hit anyone else. Philip said Levi simply stepped in verbally to calm things down between Lucassie and Brandon. [ 83 ] Philip testified that ‘we kind of chilled’ after Brandon left.

But then about 5 minutes after Brandon left, Levi left, also out the back door. [ 84 ] Philip was clear that Levi had nothing in his hands when he left; that he (Levi) just put on his shoes and said “I’ll be right back.” Philip said that Levi seemed fine, but a little agitated, when he left. Philip assumed that Levi had just gone out for a smoke in the aftermath of the ruckus in the house. [ 85 ] Philip testified that he followed Levi to see what was up. He said that “when I went out the door 30 seconds later, he wasn’t there.” [ 86 ] Shortly afterwards Philip texted Levi to see where had had gone.

Philip identified these texts on his phone: they were sent on Friday 15 May 2020; the first at 2:04am saying “where did you go?; and another at 2:05am saying “You OK ?” None of these texts were answered. [ 87 ] Philip also testified that during the twenty times or more that he had visited Levi’s place at 4145 3A he never saw anything that resembled either a harpoon, an ice pick, or a crowbar. iii. Johnny Michael [ 88 ] Johnny Michael (who prefers ‘John’) was 20 years old when he testified at the trial, and 17 when Brandon Lyta showed up at his place in the early morning hours after the stabbing on 15 May 2020.

[ 89 ] John and Brandon are cousins and Brandon used to live at John’s place. They were also friends and spent a good deal of time together. John and Levi were also cousins. They knew each other but did not have a relationship as friends. [ 90 ] John said he got a text from Brandon at 3:19am on Friday morning 15 May. The text said “Hey bro, I need help big time.” John knew Brandon was living at the men’s shelter and had missed curfew so he allowed Brandon to come over. [ 91 ] Shortly afterwards Brandon showed up, announcing he was drunk. And he immediately began to show John injuries to his (Brandon’

s) arm and back. [ 92 ] Brandon told John he was jumped or ganged up on by three guys in an apartment near the Road to Nowhere. He identified Levi as one of the three guys. He said they were gambling and that he grabbed the money in the pot as well as cannabis and beer. It was not clear whether he had grabbed these things before or after he was ganged up on. [ 93 ] Brandon told John he was hit by a fry pan and a crowbar but could not identify which of the three guys did this. He said he pushed two of the guys down or away and then reached for a knife in the sink.

He said that once he got the knife they backed off. [ 94 ] Brandon told John that he was leaving but also being chased. He said that while he was being chased he was on the top floor going down, then he was chased with a harpoon. [ 95 ] Brandon told John that he was running away and that one of the guys (Levi) was chasing him and swinging a harpoon. Brandon said that he put his arms up to protect himself and got hit with the harpoon.

He said he then stabbed Levi on the shoulder to defend himself and Levi ran away to a taxi saying he had been stabbed. [ 96 ] John did however look at photos of Brandon’s injuries which were taken by the police. John said two photos showed the marks on Brandon’s left arm and elbow where Brandon showed John he had been hit by the harpoon. { Exhibit 1, Part E, photos 57 & 58} [ 97 ] Brandon also had showed John his back, and John testified he could identify marks left by a fry pan and crowbar.

No such marks were, however, visible on the police photos of Brandon’s back [ 98 ] After telling John his story about the three guys, Brandon left John’s company and went downstairs to spend time with other people in the house. John went to sleep and was surprised, when he awoke, to see that Brandon had stayed over. [ 99 ] Later that same morning John’s parents told him that Levi had died.

John became upset and asked Brandon “did you kill him?” to which Brandon replied “no.” John said Brandon looked nervous and scared and left the house. [ 100 ] Later in the day, shortly before 3:00pm John texted Brandon to tell him the cops were looking for him. Shortly after receiving this text, Brandon went to the RCMP detachment. iv. Brianna Kunnuk [ 101 ] Brianna Kunnuk (Brianna), 22, testified that she had been Levi Michael’s girlfriend for about 6 months.

She said that during those six months she would stay over at Levi’s place, 4145 3A about 3 days per week. [ 102 ] Brianna said that in all the time she spent at 4145 3A she had never seen a crowbar, or an ice pick, or a harpoon. [ 103 ] She last saw Levi on 09 May 2020 when she stayed at his place. It was also the night where she made a complaint to the RCMP about Levi’s behavior. [ 104 ] Brianna told police that Levi had broken one of her windows that same day.

She also confirmed, in her statement to the RCMP, that he had previously assaulted and threatened her as well as her father (to the point of putting him in hospital). [ 105 ] However, Levi had never actually been charged with assaulting Brianna, and she never saw him threaten or beat up her dad, or anyone else.

III. MR. LYTA’S DEALINGS WITH THE POLICE [ 106 ] Brandon had several dealings with the police. [ 107 ] His first dealing was after 3:00pm on Friday 15 May. Brandon had been sitting around drinking coffee at the Quick Stop convenience store near the RCMP detachment when he received a text from Johnny Michael. Johnny told Brandon that the “cops are looking for you.” Brandon then walked into the detachment on his own. [ 108 ] At this point Brandon was only a person of interest to the police. Brandon did say that he “did something bad,” but was not specific beyond this.

Police allowed Brandon to call a lawyer who he spoke to briefly. He did not provide police with any other information. Nonetheless the police seized Brandon’s clothes for analysis and photographed him as well. Brandon was given a new set of clothes and left the detachment on foot back to the men’s shelter. [ 109 ] Brandon’s second dealing with police was around 3:00pm the next day, Saturday 16 May. This time Brandon was brought to the detachment by his lawyer for the purpose of giving a statement to police. The lawyer then left. Brandon, however, was hesitant to provide any statement.

He claimed he needed a full night’s sleep and promised to come back the next day, Sunday 17 May. [ 110 ] However, by the end of the day, Saturday 16 May the RCMP Major Crime Unit [MCU] had made the decision to charge Brandon with Levi’s death.

Accordingly, and shortly after 8:30pm on Saturday, Brandon was arrested at the men’s shelter and taken into custody on the charge of murder. [ 111 ] Later in the evening of Saturday 16 May Brandon was interviewed by police and gave a detailed statement about what he said happened that night at Levi’s house. [ 112 ] Normally any statement or confession made by an accused person to police must be proven to have been made voluntarily before the Court may consider it as evidence. [ 113 ] In this case Defence Counsel agreed that any statements made by her client to police were in fact voluntarily made and may therefore be admitted into evidence without further scrutiny.

The main statement is exculpatory and the Defence wanted it before the Court. [ 114 ] In turn, the Crown agreed to lead Brandon’s statements to police as part of their case, reserving the right to argue that his version of events is, nonetheless, a lie. [ 115 ] Accordingly, I allowed the accused’s statements to police into evidence. IV. Mr. LYTA’S INTERVIEW WITH THE POLICE [ 116 ] After his arrest Brandon was interviewed by MCU Constable Dan Sharpe between 9:30 and 10:30pm on Saturday 16 May.

During this interview Brandon made an emotionally charged statement about what had happened between himself and Levi. [ 117 ] Brandon claimed he was acting in self-defence. He said that Levi attacked him with a crowbar – which he clarified as not really a crowbar, but rather some kind of ice chisel. [ 118 ] Brandon said that he and Levi and Lucassie were playing poker. He said ‘the other guy’ (Philip) was not doing much besides playing video games and smoking weed. [ 119 ] Brandon said “We were drinking at his (Levi’

s) house. We had 48 cans of beer. We were playing poker and an argument broke our over poker. I tried to take my money back and my beers and leave. And Levi and his two friends got up, confronted me and there was a fight. It wasn’t really a fight. I was getting surrounded, ganged up.” [ 120 ] Brandon said they all fell to the floor and that “one grabbed my backpack and they were trying to take my beers.” Brandon said he freaked out, saw a knife in the sink and grabbed it to ward off his attackers. He said they were all drunk.

[ 121 ] Brandon said at this point – when he grabbed the knife - everyone backed off. He said he then took his backpack with money and beer, and left the apartment. He still had the knife. He did not recall what kind of knife it was – just that it was a big kitchen knife. [ 122 ] Brandon said that he was outside and at the bottom of the stairs when Levi appeared at the top of the stars and came down after him.

He said Levi had what appeared to be a homemade 4 or 5 foot long “tuuq” - an ice pick or chisel with a square metal blade at the bottom. [ 123 ] Brandon said Levi first ran towards him while holding the ice chisel or tuuq like a harpoon, as if to throw it. He said that Levi then grabbed it like a baseball bat and began to swing at him. [ 124 ] Brandon said he yelled at Levi several times to stop and to “fuck off.” He said he was hoping that someone would hear him yelling and that this might frighten Levi off.

But, he said, Levi continued to swing. [ 125 ] Brandan said he dodged some of these swings and turned to run away but that in his drunken condition tripped over his own feet. He said Levi continued to swing and that he blocked these blows with his arms. He said he was covering his head with his arms.

He showed Constable Sharpe a mark on his left forearm where he said the blade of the tuuq had made contact. [ 126 ] Brandon also demonstrated how the blade and handle of the tuuq was at one point wedged between his side and his lower (and inner) left bicep as he struggled to ward off Levi. [ 127 ] Brandon said he was afraid of getting hit in the head and killed by the metal blade. He said that he then stabbed at Levi one time in order to get him stop swinging.

He said it all happened so fast – Levi was swinging and Brandon reached out and stabbed all in one sequence. [ 128 ] Brandon said that this fight took place at the rear of the apartment (4145).

He said that after being stabbed Levi ran away to the front of the building where a taxi was parked and was yelling to the driver “that guy stabbed me.” Brandon said that Levi then got into the cab which drove away. [ 129 ] Brandon said he then walked away from the scene carrying both the knife and the tuuq (which he still sometimes called ‘the crowbar’). [ 130 ] He said he walked for a while before dropping the crowbar into a ditch on the opposite side of the road to 4145 and then tossed the knife further away into a field on that same side of the road. [ 131 ] Constable Sharpe showed Brandon a diagram of the area around 4145, and Brandon pointed out where he had walked. [ 132 ] Brandon said that after discarding the tuuq and the knife he then stopped off at his cousin Lucy Ann’s house where he had a joint and some beers.

He said he then went to his cousin Johnny Michael’s place where he spent the night. [ 133 ] During the interview Constable Sharpe asked Brandon about his cell phone. Brandon said that he had lost it a while ago, or else it had been stolen at the shelter. [ 134 ] Later, after the interview was over and when Brandon was having a smoke, the Constable asked him if he had made any Facebook postings that evening. Brandon at first said ‘no’ but then said he could not remember if he had made any or not.

Brandon also said that he was at his cousin Johnny’s place the next morning when he found out Levi was dead. [ 135 ] Constable Sharpe told Brandon that he had already sent RCMP officers out to look for the tuuq and the knife. And he asked Brandon if the items were not located that night, whether Brandon would accompany police the next day to look for them. Brandon agreed to do so. [ 136 ] During the course of his interview with Constable Sharpe Brandon was clear that he never meant to kill Levi and was in a state of shock the next day when, after he woke up, he was informed that Levi was dead.

Brandon said this was especially troubling because he also found out that he was related to Levi. Prior to that evening, he said, he had never met Levi before. [ 137 ] Brandon said that that after finding out that Levi had passed away he walked down by the beach and was considering suicide for a while. He then went to the Quick Stop across from the RCMP, and drank some coffee and smoked some cigarettes while considering

turning himself in. [ 138 ] Eventually, at around 3pm on Saturday 16 May he came into the RCMP detachment for the fist time. V. MR. LYTA ACCOMPANIES POLICE TO THE SCENE OF THE INCIDENT WITH MR. MICHAEL [ 139 ] On Sunday morning 17 May at 10:00am Brandon accompanied police in their truck to the scene of the incident. He showed them where the fight took place.

He also showed them - as he had told Constable Sharpe late the previous evening – where he got rid of or discarded the ice chisel and the knife. [ 140 ] The police explained to Brandon that some members had searched the area late last night but that it was dark and they saw nothing. Police were anxious to get to this discard location in the daylight because, as they said to Brandon, there are a lot of kids that play in the area who could have picked up something like a knife. [ 141 ] Brandon directed police to the rear of Levi’s building (4145) where it meets up with the next building to the south (4149).

He explained it was at this location in the rear of these two buildings when Levi ran down the stairs to come after him. [ 142 ] Court Exhibit P-19 (photo 34) shows this area (marked in orange) behind the two buildings where Brandon said the fight took place. [ 143 ] Brandon said he tried to run away but that his feet got crossed up and that he fell.

He said he was telling Levi to fuck off and that Levi was swinging at him with the ice chisel. [ 144 ] Brandon said Levi was yelling at him repeatedly and saying “you’re gonna yell at me in my house” as he swung. [ 145 ] Brandon said that “we both tripped over each other at the exact moment it happened.” Afterwards, Brandon pointed out where Levi ran around to the front of the building and got into the taxi. [ 146 ] Brandon then showed police where he got rid of the knife and the ice chisel.

He said he dropped the ice chisel first into a culvert or ditch and then walked a little bit further before tossing the knife into a field of dirty snow. [ 147 ] Exhibits P-17 & 18 (photos taken on 15 May, a couple of days earlier) show this area: Brandon said the ice chisel was discarded in the culvert beside what is Hydro Pole # 70103078, and the knife flung into the field marked in pink on photo # 11. [ 148 ] It is worthy of note that this target area where Brandon says he discarded the items is a considerable distance down the road from where the police had secured the scene around building 4145.

The police truck depicted in Photo AED_2167 shows exactly how far away this area is from the scene security being maintained around building 4145. {Exhibit 29 USB / Amy Doan [photos of stabbing location} [ 149 ] Brendan then guided the police truck along the route he took after he says he discarded the ice chisel and knife. They drove first to Brandon’s cousin Lucy Ann’s home who lived nearby.

Brandon said he stayed here for about half an hour and had a few beers before walking down to another cousin’s house near the beach, where he continued to drink and smoke weed, and watched a movie before passing out for the night. [ 150 ] Brandon then took police along the route he took on the beach after waking up and finding out that Levi had passed away. From there he showed police where he sat around the Quick Stop near the police detachment before eventually walking in to talk to police. [ 151 ] During this trip police asked Brandon if he had a cell phone.

Brandon was clear that he did not have any cell phone the night of the incident. He said he had not had a phone for the past couple of weeks and that his own phone had either been lost or stolen while he was at the shelter, or while he was drinking. He said he would use a friend’s phone sometimes but “that was a while ago.” He also said he had not used any phone since the incident with Levi happened. [ 152 ] After completing the trip with Brandon, police did an exhaustive grid search of this specific area where Brandon said he had

discarded the ice chisel and the knife. Six RCMP members searched for 40 minutes. They found nothing. VI. THE SEARCHES [ 153 ] Police maintained scene security at 4145 within an hour of Levi’s death- both inside the apartment as well as outside the building. In addition, video as well as photos of the area around 4145 were taken at 11:00 am on Friday 15 May. [ 154 ] The police did a series of searches around building 4145. Initially they were looking for anything relevant to a homicide investigation; in particular, since this case was a stabbing, they were looking for a knife. [ 155 ] Later, after Mr.

Lyta’s interrogation on Saturday evening 16 May, police became aware that an ice chisel may have been involved. [ 156 ] Police conducted four searches - one exterior scene exam around 4145 and three more comprehensive grid style searches beyond 4145, including eventually the area where Brandon said he got rid of the ice chisel and the knife – the supposed discard area. [ 157 ] The first search – an exterior scene exam of 4145 was conducted by three RCMP members and took place on Friday 15 May at around 2:30pm. This was an examination of the ground and ditches around the building as well as across the street.

At this point Brandon had not yet spoken to Constable Sharpe about an ice chisel. [ 158 ] This exterior scene exam did not extend further down the road away from 4145 which is where Brandon said he discarded the ice chisel and the knife.

Even if this search had extended to this ‘discard’ area there would have been an entire morning when pedestrian traffic could have passed by the area and seen what may have been in the ditch. [ 159 ] Nothing turned up in this first exterior scene exam of 4145 on Friday afternoon, 15 May. [ 160 ] The next day, between 4 and 5:30pm on Saturday 16 May, the first (of three) grid style searches involving six RCMP members was conducted. [ 161 ] This first grid search was an extensive and methodical examination of an area between Dead Dog Lake to the north of 4145 and the Apex Quick Stop convenience & grocery to the south. [ 162 ] And it did include Brandon’s discard area – albeit at this point Brandon had not yet spoken to Constable Sharpe.

Nothing was found in this first grid search. {Exhibits p-12 and p-20 are aerial photos of the search area – with a red dot in p-20 indicating the location of 4145} [ 163 ] Sometime after 9:30pm on Saturday 16 May Brandon told Constable Sharpe that an ice chisel was involved. So, at 10:30pm police conducted a second grid search – this time focusing on the area where Brandon had said he threw away the items. This search also involved six RCMP members.

However, it was done in the dark, and nothing turned up. [ 164 ] As noted earlier, at around 11:35am on Sunday 17 May - after Brandon showed police where he said he discarded the ice chisel and knife – a third grid search was conducted. [ 165 ] Constable Sharpe said they were looking for a metal or wood frame ice chisel or pick 4 to 5 feet long, with a grip on one hand and sharp area at the other end that you might use to chip ice away from a walkway. Police did not have an exact description of the knife involved but from interviews were looking for a black handled steak knife.

And again, nothing was found – no knife (of any kind), no ice chisel. {This final grid search was conducted in the area depicted in photos p-17 & p-18, the supposed discard area as pointed out by Brandon} [ 166 ] In addition to the searches, Constable Sharpe directed officers to speak with the other apartment owners to ask them if they owned or had owned an ice chisel or chipper - and if so was it missing ? The response came back negative – no one was missing an ice chisel. [ 167 ] None of the people (owners) were, however, called as witnesses by the Crown.

Nor were these particular neighbors identified as inhabiting the units (with balconies) beneath 4145 3A.

[ 168 ] In addition to searching outside building 4145, the police also conducted an extensive examination of Mr. Lyta’s unit, 3A. [ 169 ] In particular, and shortly after 4:30pm on Thursday 15 May, Corporal Doan observed a stain, possibly blood, on the kitchen floor in front of the refrigerator; and another stain, also consistent with blood, in the laundry room, on top of the dryer and next to a screwdriver. {Ex. 10, Forensic ID Report, p. 5, at 16:32 hrs.} [ 170 ] The Corporal took swabs of both these stains and they were subject to forensic analysis.

No blood was confirmed in the stain from the kitchen floor near the fridge, but the DNA profile of the stain was a match to Mr. Michael’s DNA; similarly, no blood was confirmed in the stain on the dryer, but the DNA profile was a match to Mr. Michael’s DNA, and also to another unknown individual. {Ex.1,

Part C, Forensic Science and Identification Services Laboratory Report} VII. MR. LYTA’S CELLPHONE IS RECOVERED [ 171 ] Brendan had told police he had not used his cell phone after the stabbing.

He said his phone had either been lost or stolen and that he did not know where it was. [ 172 ] Police were interested in Brandon’s cell phone because during their investigation they believed that after the stabbing Brandon had sent and received messages via his cell phone with Johnny Michael. [ 173 ] On Sunday afternoon 17 May, Constable McCarron confronted Brandon with a copy of a screen shot he had posted from the poker game.

Brandon admitted that he may have taken this shot and put it on his Facebook account. [ 174 ] The next day, on Monday 18 May, Constable Sharpe received some further information and went to the men’s shelter where the staff handed him Brandon’s cell phone. VIII. MR. LYTA’S INJURIES [ 175 ] Brandon has two notable injuries: one, a cut on his left arm adjacent to his elbow; and another, a series of bruises on his left triceps. These injuries are depicted in photos taken by both RCMP as well as his own defence team. {Ex. 1, Tab G, pp. 86 & 87; Tab H, pp. 89-92} [ 176 ] Dr.

Walker, the pathologist who had performed the autopsy on Mr. Michael, was asked about the likelihood of bruising if a person were hit with a metal rod. His evidence was that the transfer of blunt force energy could cause minor to major injury. Depending upon the force used and the tissue health, the resulting injury could range from abrasion, to bruising to fracture. [ 177 ] Dr. Walker was also clear, however, that without more information on the relevant variables (e.g., the type of weapon, the amount of force or number of hits) he was unable to give a more precise prediction of the injury that might result. IX.

MR. MICHAEL’S CRIMINAL RECORD [ 178 ] Mr. Michael’s criminal record was entered into evidence by agreement of Crown and Defence Counsel. Mr. Michael was convicted of assault causing bodily harm in 2012, when he was 21 years old, for which he received a penalty of 4 months jail and 2 years probation. He was convicted of uttering threats in 2015, when he was 24 years old, for which he received a penalty of 10 months jail. He was also convicted of simple assault in 2017, when he was 26 years old, for which he received a penalty of 30 days jail served on weekends. In between these convictions Mr.

Michael had other convictions for various breaches of court orders.

X. MR. LYTA’S CRIMINAL RECORD [ 179 ] During his testimony Mr. Lyta admitted to having a criminal record. In 2018, when he was 21 years old, he was convicted of simple assault as well as uttering threats, for which he received a penalty of 60 days jail and 12 months probation. In 2019, when he was 22 years old, he was convicted of two counts of assault with a weapon, for which he received a penalty of 170 days jail (after serving 113 days in pre-sentence custody) and 12 months probation. He also has one conviction for mischief, as well an another for breach of a court order. XI. MR LYTA’S TESTIMONY UNDER OATH A.

In Chief and Re-Examination Testimony [ 180 ] Under questioning from his own lawyer Brandon maintained the version of events that he had told Constable Sharpe during his interview on Saturday evening 16 May 2020. [ 181 ] He had told the constable that the reason he stabbed Levi was to prevent getting hit in the head, and possibly killed, by the ice chisel – that it was self-defence. [ 182 ] In his statement to Constable Sharpe Brandon said that he had been ganged up on in the apartment by Lucassie, Levi, and Philip; that he grabbed a knife to get them to stop; and then gathered up his things – his money, his cannabis, and the beer - and left, taking the knife as well. [ 183 ] In his testimony in court Brandon said that about 30 seconds to 1 minute after he left the apartment, he heard the door slam and saw Levi running down the steps. [ 184 ] He began to run away and was in the parking lot when Levi reached the bottom of the stairs.

At this point Brandon said he first saw something in Levi’s hand. Brandon said Levi was about twenty feet away. [ 185 ] Levi was holding something by his side and ran towards him. Brandon said that he first thought Levi had a crowbar, but when he got a better look he said it was an ice chisel or tuuq. [ 186 ] Brandon said Levi held this chisel up like a harpoon as if to throw it. [ 187 ] Brandon then demonstrated how Levi began to swing the chisel like a baseball bat – and was approaching from his (Levi’

s) right towards Brandon’s left. [ 188 ] Brandon testified that Levi was swinging at his head. Brandon showed how he lifted his left arm high over his head to protect himself, exposing his triceps (the underside or back of his left arm). [ 189 ] Brandon said he dodged the first swings but eventually Levi made contact with the shaft of the tuuq on Brandon’s left arm a number of times as he blocked these blows to the head. [ 190 ] Brandon testified that he lunged out - with the knife in his right hand – and stabbed Levi in the arm.

Brandon said he was not really aiming and that “we both struck each other at the same time.” He said they were both standing when they made contact with each other, Levi with the tuuq, and Brandon with the knife. [ 191 ] Brandon said he caught the tuuq under his armpit and held on. He said that Levi then just ran away. Brandon saw Levi run towards a taxi, get in, and the taxi leave. This all took place in the parking lot behind 4145 and 4149. [ 192 ] Brandon testified that he stabbed Levi to get him to stop, in order to prevent getting hit in the head with the tuuq.

[ 193 ] Afterwards, Brandon said he walked away from the scene a fair distance and threw the tuuq in a ditch, and the knife in field a few yards away. He said the shaft of the ice chisel or tuuq was like an iron rebar rod. [ 194 ] Brandon testified that he lied to Constable Sharpe (and other police officers) about his cell phone. He had told them it was lost or stolen, and that he never posted anything on Facebook. [ 195 ] Brandon explained that he simply did not want the police to locate the phone because he was homeless and it was his only thing of value.

He wanted to sell the phone and give or provide the money for his 3 year-old son. [ 196 ] Brandon referenced the photographs of his injuries which he said were made by the tuuq, most specifically on his left arm: these injuries included a laceration below the elbow as well as bruising on the forearm and on the back of the arm (triceps area). B. Cross-Examination [ 197 ] Brandon was questioned at length by the Crown Attorney. [ 198 ] He testified that he is about 6 feet two inches in height and weighed over 200 pounds back in 2020.

He talked about how on Thursday 15 May 2020 he and Lucassie bought 48 beers and went to Levi’s apartment, and that Philip was already there. [ 199 ] Brandon said he left briefly to get a deck of cards and that the poker game between himself, Levi, and Lucassie started at around 9 or 10pm. [ 200 ] Brandon said he had brought cannabis and that everyone except Lucassie smoked from the 3 or 4 joints that were passed around during the course of the evening.

Brandon also said that everyone except Phillip was getting pretty drunk. [ 201 ] Brandon admitted drinking at least 11 beers, at one point “shot gunning” 5 or 6 within a very short time. He said he got pretty intoxicated. [ 202 ] Into the early morning (Friday 15 May) the poker game turned sour. Brandon said there was a final “all in” hand which he claimed he won, but the others disagreed. An argument followed. [ 203 ] Brandon testified that he felt angry and cheated and decided to take his winnings (and beer) and leave.

He said that the argument got physical and turned into a wrestling match with some fighting. [ 204 ] Brandon denied the suggestion that only he and Lucassie were involved in any physical altercation. He said as he went to the fridge for his beers that Lucassie began wrestling with him. Brandon said he had put Lucassie to the floor and was winning this match-up when Levi stepped in and pulled him off Lucassie. [ 205 ] Brandon testified that he then overpowered both Lucassie and Levi, at which point he said Phillip got involved. Brandon said that he then found himself on the floor near the sink.

He said he was able to get up and saw a knife, which he grabbed. He agreed that no one else grabbed any weapon at any time, just Brandon. [ 206 ] Brandon admitted that he grabbed the knife to let people know he was in control. He said, however, he was in a “fight or flight”, mode and angry, but also scared for his safety. [ 207 ] Brandon said he did not recall saying “I’m a Lyta, I’m a crazy person,” while he was holding the knife.

And he denied saying that he was a “jailbird.” Nor did he recall any discussion among the group earlier about he (Brandon) being the biggest person in the room. [ 208 ] Brandon testified that “they asked me to leave and I did.” He then took his things, and the knife, and left. [ 209 ] Brandon testified that he first saw Levi with a tuuq or chisel when he (Levi) was at the top of the stairs, on the third floor. He said he then saw Levi running down the stairs. [ 210 ] Brandon was confronted by the Crown Attorney with his earlier testimony that he first saw Levi with the tuuq only when Levi

was at the bottom of the stairs. In response Brandon said he had just assumed Levi had the tuuq at the top of the stairs.

He also testified that he heard, rather than saw, Levi running down the stairs. [ 211 ] Brandon testified that he had not seen any tuuq or chisel on Levi’s porch when he first arrived at the apartment, nor had he seen any tuuq or chisel inside the apartment. [ 212 ] Brandon testified that the altercation with Levi happened in the parking lot between 4145 and 4149. [ 213 ] Brandon said he began to run away but that Levi was chasing him saying “you…yelling at me in my house !” He said he responded by saying “fuck off” a number of times to get Levi to back off. [ 214 ] Brandon testified that Levi started swinging the tuuq or chisel like a baseball bat and was aiming at Brandon’s head.

He testified that Levi was swinging with full force as far as he could tell. He said he used his left arm to block the blows to his head. [ 215 ] Brandon testified that he got hit in forearm with perhaps the sharp part of the tuuq. He said he got hit with the shaft about 5 times on his left arm on “the underneath of my bicep and like, beneath the triceps and bicep.” [ 216 ] Brandon testified that he was frightened for his life and that his arm was getting numb, and that he made the conscious decision to lunge out with the knife.

He said “when my arm was going numb and I couldn’t…hold it anymore…that’s when I decided to stab him… we struck each other at the same time.” [ 217 ] Brandon said that immediately after he stabbed Levi “at that moment, I really…I wanted to help him, but he ran.” He said that he saw Levi get into the taxi. [ 218 ] Afterwards, Brandon said he walked away from the scene a fair distance and threw the tuuq in a ditch and the knife in a field a few yards away. [ 219 ] Brandon was confronted by the Crown Attorney as to why he did not keep the weapon that had been used to attack him, or at least leave it at the scene, rather than walk some 200 feet from the scene to dispose of it.

In response, Brandon said “I wasn’t thinking straight.” [ 220 ] Brandon said he was in a panic after the stabbing and walked to his cousin Lucy Ann’s place where he stayed for an hour, drank some beer, and smoked some cannabis. From there he walked to his cousin Johnny Michael’s place where he drank more beer, watched a movie, and spent the night. [ 221 ] Brandon was also confronted by the Crown Attorney as to why he did not go to the hospital.

Brandon said that he did not think his injuries were serious enough to require such attention. [ 222 ] Brandon testified he became aware that Levi had passed away upon awakening at Johnny Michael’s place; this was confirmed when he went to the men’s shelter later and spoke with Lucassie. [ 223 ] Brandon said he was freaked out. He said he walked along the beach and sat in an empty shack contemplating suicide.

Later in the day, at 3:48 pm (on Friday 15 May) he received a text from Johnny Michael saying the police were looking for him, and he went into the detachment for the first time a few minutes later. [ 224 ] Brandon said he was on his way to the police detachment when he got the text.

He did not, however, give any statement to the police about what happened on that visit. [ 225 ] The Crown Attorney questioned Brandon about the “colorful” version of events he told to Johnny Michael about what happened at Levi’s – namely, that he was beat up by three guys, hit with a fry pan, on the back with a crowbar, and that he had run down the stairs with money (hundreds of dollars) falling out from the poker pot. [ 226 ] Brandon responded by saying he did not recall saying anything about a fry pan to Johnny Michael, but that he told Johnny that Levi was holding the ice chisel like a harpoon.

And he insisted that the amount of the poker pot was in the hundreds because of the fifty- dollar buy in.

[ 227 ] The Crown Attorney also reminded Brandon he had told Johnny Michael that the stabbing occurred somewhere around Quick Stop. Brandon responded by saying he did not believe he said anything like this to Johnny, but “I don’t remember, I don’t know.” [ 228 ] Brandon admitted that he sent Facebook posts from the poker game and lied to the police about this. He said this was all part of his lying to the police about his cell phone – by saying it was lost or stolen.

However, he repeated that he told the police these lies about the phone because he wanted to preserve it in order to sell – and get the proceeds to his son. [ 229 ] Brandon also admitted to erasing messages on his phone at noon on Saturday 16 May as part of this exercise.

He said, however, that there was nothing bad on the phone. [ 230 ] Brandon said, “I lied about the phone, I did not lie about the stabbing.” [ 231 ] Brandon also admitted, however, that he lied to the police when he told them he had not told anyone else about the stabbing, when in fact he had told Johnny Michael. [ 232 ] Brandon’s cross-examination ended with the following exchange: Question {the Crown Attorney}: You were showing them, sir, that you were out of control and they shouldn’t mess with you ? Answer {Mr. Lyta}: No.

Q: And, sir, you left because you were angry, you left taking all the money, all the marijuana, and all the beer and initially nobody followed you outside ? A: Can you repeat that please ? Q: You left …..you left taking all the money, all the beer, and all the marijuana, and the knife, right, sir ? A: Correct. Q: I suggest about two minutes later Levi Michael came out. You were still outside. You were still angry and altercation took place between you and Levi Michael. A: It wasn’t two minutes. It was a minute, and he did come out and he did have a tuuq. Q: I suggest to you that Mr.

Levi Michael who is five foot seven, a 150 pounds, significantly smaller and lighter than you, was unarmed and in exactly the same way, the knife over hand you stabbed him. A: He was not unarmed Q: And I suggest you did all of that and you knew exactly what you were doing. As you yourself said, you chose to stab him. A: In self-defence. {Trial Transcript; Evidence of Brandon Lyta, p. 109, ll, 10-27, p. 110, ll, 1-11} XII. THE LAW

A. Murder and Manslaughter [ 233 ] Murder is governed by

Section 229 (

a) of the Criminal Code . A person who causes the death of another person commits murder if, (

i) they mean to cause the other person’s death, or (ii) they mean to cause the person bodily harm that they know is likely to cause death, and are reckless whether death ensues, or not. [ 234 ] Under

section 229 (a) (ii) it is not simply enough that the perpetrator is reckless: there must also be an intention to cause bodily harm that the perpetrator knows is likely to cause death. This has been interpreted to mean that there must be a substantial degree of probability that death would ensue from the intended bodily harm. {R.v.Brar, [2009] BCJ No. 2642 (BCCA) } [ 235 ] If the perpetrator meets both criteria (

i) and (ii), above, then they possess the required criminal specific intent ( mens rea ) to kill which is necessary before a conviction for murder can be sustained. [ 236 ] If the Court is not satisfied beyond a reasonable doubt that the perpetrator had the required specific intent to kill, he could still, however, be convicted of the lesser but included offence of manslaughter for unlawfully causing death. B.

Intoxication [ 237 ] It is possible that intoxication may result in an accused being convicted of the lesser offence of manslaughter rather than murder. [ 238 ] First, however, the level of intoxication must be significant. And second, it must be such that the judge (or jury) believe that it has impaired the accused’s foresight of consequences of his actions such that there is a reasonable doubt that he had the necessary specific intent for murder as required by

section 229 (

i) or (ii), above. [ 239 ] That said, intoxicated people can be found guilty of murder. For example, if the drunken perpetrator were to point a shotgun within a few inches of someone’s head and pull the trigger, it would be difficult to suggest they did not foresee death as a consequence. Each case of intoxication is unique to its specific facts. C. Self-defence [ 240 ] Self-defence is governed by

Section 34 of the Criminal Code . [ 241 ] Section 34 (1) says that a person is not guilty of an offence if, (

a) they believe on reasonable grounds that force is being used against them, (

b) the act that constitutes the offence is committed for the purpose of defending themselves from that force, and (

c) the act committed is reasonable in the circumstances. [ 242 ] The defence of self-defence is a complete defence even to a charge of murder.

This means if the plea of self-defence is successful then the accused is entitled to be found not guilty on the charge of murder, and further cannot be found guilty of any included offence such as manslaughter. [ 243 ] It is the question of what is “reasonable in the circumstances” which in most cases of self-defence attracts the most scrutiny. [ 244 ] Section 34 (2) deals with this question and says that in determining what is reasonable in the circumstances the Court shall consider “the relevant circumstances of the person, the other party, and the act” as well as a number specified listed factors. [ 245 ] These factors, listed as (

a) through (

h) deal with things such as any previous relationship between the parties, the nature of the force or threat of force, the relative size of the parties, whether a weapon was used, and whether the force used by the accused was proportional. [ 246 ] Self-defence, however, cannot be considered by the Court until the defence establishes an air or reality that it could succeed. This

air of reality test must be applied to each of the three elements of self-defence under section 34 (1), which have both a subjective andobjective component. [247] The air of reality test is a threshold test. If there is no air of reality to the defence then the Court cannot consider it. The best wayto illustrate this is where the accused chooses to be tried before a jury. The threshold question is whether a properly instructed jury couldacquit if they believe the defence theory to be true. [248] The air of reality test imposes a burden on the accused that is merely evidential, rather than persuasive.

In applying the air ofreality test the trial judge assumes the evidence relied upon by the defence theory to be true.

The threshold determination is not,however, aimed at deciding the merits of the self-defence claim, and the trial judge does not make determinations about for example thecredibility of witnesses. [249] Put more simply the trial judge must decide whether the defence theory itself discloses a real issue for the jury to decide: is thereevidence on each of the 3 elements of self-defence in section 34 (1), which, if true, would allow the jury to decide if self-defence willsucceed, or not. [250] If the air of reality test is satisfied and the judge allows the jury to consider the defence theory or evidence, then onus shifts to theCrown to establish to the jury (or the judge, if there is no jury) to disprove the defence theory beyond a reasonable doubt on at least oneof the three elements listed in s 34(1). {R.v.Cinous 2002 SCC 29 , [2002] S.C.J.

No. 28; see also, R.v.McNeil 2022 NSCA 55 which says that in a judge alone trial there is no obligation to engage in an air of reality analysis separate from a final decisionon self-defence} [251] In this case the Crown has made an important concession: The Crown concedes that the air of reality test has been met. If theCourt accepts Mr. Lyta’s evidence, that he struck Levi Michael with a knife in fear of his life while being attacked with a tuuq, then Mr.Lyta, in the Crown’s view, is entitled to be acquitted. [252] In addition, the Crown says if Mr.

Lyta’s evidence raises a reasonable doubt, he is entitled to be acquitted. And further, that if theevidence accepted by the Court and considered as a whole, raises a reasonable doubt on this issue, then Mr. Lyta is entitled to beacquitted. [253] The Crown’s position is simply that there was no tuuq or ice chisel. D. Assessing the Accused’s Testimony [254] In assessing the credibility of an accused the Court is given direction by our Supreme Court of Canada in the case of R.v.W.(D),.

This case stands for the proposition that the benefit of any doubt must be given to the accused in making such anassessment. [255] And further that even if the accused’s testimony does not leave the Court with any doubt, the evidence which is accepted mustnonetheless prove guilt beyond a reasonable doubt. [256] Thus, the Court is to avoid simply balancing the evidence of a Crown witness (or witnesses) against that of the accused. XIII. THE POSTION OF THE PARTIES A. The Crown [257] The Crown says that Mr. Lyta attacked an unarmed Levi Michael.

The Crown says there was some kind of altercation orconfrontation between the two during the course of which Mr. Lyta inflicted the fatal stab wound with a seven inch blade. [258] The Crown says that Mr. Lyta is guilty of murder because he intended the natural consequences of his acts – that he either

intended to kill Levi Michael or intended to inflict bodily harm that he knew was likely to cause death, and was reckless as to whether death ensued, or not. [ 259 ] The Crown says that manslaughter is an alternative verdict if I am not satisfied that Mr. Lyta had the requisite criminal intent or mens rea to kill Mr. Michael. [ 260 ] However, the Crown says that manslaughter is not an alternative verdict based on intoxication because Mr. Lyta’s level of intoxication did not reach the level where he was unaware of the consequences of his actions; by his own admission he knew what he was doing when he stabbed Mr.

Michael. [ 261 ] The Crown concedes the legal point that there is an air of reality to Mr. Lyta’s claim of self-defence. Or, put more simply, if what Mr. Lyta says is true about being attacked by Mr. Michael with a tuuq or ice chisel, then he (Mr. Lyta) is entitled to an acquittal; similarly if I am left with a reasonable doubt about this then equally, Mr. Lyta is entitled to an acquittal. [ 262 ] The Crown, however, says that this entire claim of self-defence is a fraud – a lie. [ 263 ] The Crown does not, however, rely on any propensity to violence on Mr. Lyta’s part as evidenced by his criminal record.

Rather they say simply that he is not credible – that he is a prolific liar. [ 264 ] The Crown says Mr. Lyta lied to the police about not having a cell phone when he knew they wanted it, and that he erased messages from the phone. He lied, says the Crown when he told the police he had not made any Facebook posts. And he lied to the police that he had not told anyone about the stabbing when in fact he had told Johnny Michael. [ 265 ] The Crown says Mr. Lyta even lied to the police about not having anything to eat on the day he was questioned.

And further that he lied in Court about how much money was in the poker pot – and that his own Facebook photo proves this. [ 266 ] The Crown says there was no tuuq or ice chisel. The Crown asks me to accept the evidence of the witnesses who say they saw no tuuq or ice chisel on Mr. Lyta’s porch that evening, or in the house – and that this includes Mr. Lyta. [ 267 ] The Crown says that the extensive searches by the RCMP which failed to produce either a tuuq or a knife are proof that there never was a tuuq or ice chisel, and proof as well that Mr.

Lyta disposed of the knife at a different location than he told police. [ 268 ] The Crown also points to discrepancies in Mr. Lyta’s testimony about where he first saw Mr. Michael with a tuuq or ice chisel – at first at the top of the stairs, and then later, at the foot of the stairs or running down the stairs. [ 269 ] The Crown says that Mr. Lyta’s failure or decision not to go to the hospital is telling – in particular because he testified his arm was numb from being struck. [ 270 ] The Crown says the only injuries suffered by Mr. Lyta were bruising to the arm and a laceration to the forearm and that Dr.

Walker said no conclusions could be made from blunt force trauma. The Crown says these injuries could have been caused during the scuffle between Mr. Lyta and Lucassie. [ 271 ] The Crown points out that there are no fractures and that the injuries sustained by Mr. Lyta are minor injuries for someone who claims they were stuck by a tuuq or ice chisel some 5 or 6 times. [ 272 ] The Crown asks that I accept the unchallenged evidence of Lucassie Nutaraluk and Philip Ningeonak about what happened at the apartment – in particular their version that Levi was not involved in the ruckus and only verbally tried to calm Mr.

Lyta down. [ 273 ] The Crown asks that I accept the testimony of Lucassie and Philip that Mr. Lyta was angry and threatening when he had the knife – and that he said “I’m a Lyta, I’m a crazy person.” [ 274 ] The Crown asks that I accept the evidence of Lucassie and Philip that Mr. Michael did not chase after Mr. Lyta when he left the apartment – but rather that Mr. Michael left in a calm mood after Mr.

Lyta left, and without anything in his hands. [ 275 ] The Crown’s position is that an angry Brandon Lyta in full control of his actions, grabbed a knife in an altercation with only one other person and when no one else had a weapon; that he left the apartment with sufficient presence of mind to grab all of the money, marijuana and beer; further, that once outside he made a conscious decision to stab an unarmed Levi Michael who had simply followed

him outside, and did kill Levi Michael thus committing second degree murder. B. The Defence [ 276 ] The Defence asks that I accept Mr. Lyta’s version of events that he was attacked with an ice chisel by Mr. Michael, and that he lunged out and stabbed Mr. Michael in order to protect himself from grievous harm or even death. [ 277 ] Defence Counsel says that Mr. Lyta’s response to this attack was reasonable in the circumstances and that therefore Mr. Lyta should be acquitted on the basis of self-defence. [ 278 ] Alternatively, if I reject self-defence the Defence asks that I convict Mr.

Lyta only of manslaughter, for two reasons: first, because there was no ‘substantial degree of probability’ that death would ensue from a stab to the arm; and second, because Mr. Lyta’s degree of intoxication was such that I should be left with a doubt as to whether he was able to foresee the consequences of his actions. [ 279 ] The Defence says that Mr. Lyta was a credible witness – that his testimony in all significant matters matched what he told the police both in his interview on Saturday night 16 May, and the next day on Sunday 17 May when he accompanied police to the scene. [ 280 ] According to Mr.

Lyta, he was walking away from the building when he realized Mr. Michael was running after him with a tuuq. Mr. Lyta was not threatening Mr. Michael in any way. Mr. Lyta said that Mr. Michael initially held the tuuq like a harpoon over his head, then held it like a baseball bat and swung it repeatedly at Mr. Lyta’s head. Mr. Lyta used his arm to block the blows and protect his head, evidenced by the severe bruising to his arm that developed over a number of days. [ 281 ] The Defence says Mr.

Lyta did not seek medical attention because he correctly believed he did not require medical care; but this, says the Defence, does not contradict the fact that he suffered serious bruising from the assault with a tuuq at the hands of Mr. Michael. [ 282 ] The Defence also says that this bruising shows what appears to be spiral marks consistent with being hit with a bar. [ 283 ] The Defence says Mr. Lyta was devastated when he found out that Mr. Michael had died. Mr.

Lyta described how he wandered the beach in Iqaluit contemplating suicide, then went to the RCMP and told the person on duty that he’d done something terrible. [ 284 ] The Defence says Mr. Lyta admitted at trial that he lied to investigators about having a cell phone. He explained that he wanted to sell the phone to send money to support his three-year old son. He ‘wiped’ the phone in preparation for selling it. The Defence says that given the completeness of Mr.

Lyta’s statements to police and his testimony in Court, it does not appear that any content which was removed would have assisted the RCMP. [ 285 ] The Defence acknowledges that no tuuq or knife was found by the RCMP in their searches but points out that the first search of the area where Mr. Lyta said he discarded these items did not take place until around 10:30pm on Saturday 16 May (after Mr. Lyta had given his statement to Constable Sharpe). [ 286 ] This search, says the Defence, took place some 43 hours after the incident between Mr. Lyta and Mr. Michael.

In that time both of these items could have been picked up by passersby. [ 287 ] The Defence says that I should accept Mr. Lyta’s statement to police and his in Court testimony over the version of events he gave, while he was still drunk, to Johnny Michael. [ 288 ] Mr. Lyta told the police and testified in Court that the reason he stabbed Mr. Michael was to get him to stop swinging the tuuq; that he was worried about getting hit in the head and seriously injured, or even killed, and so he lunged out with the knife. [ 289 ] Mr. Lyta said he was acting in self-defence. Self-defence is governed by

Section 34 of the Criminal Code . [ 290 ] Section 34 (1) says that a person is not guilty of an offence if, (

a) they believe on reasonable grounds that force is being used against them, (

b) the act that constitutes the offence is committed for the purpose of defending themselves from that force, and (

c) the act committed is reasonable in the circumstances.

[ 291 ] The Defence says that, (

a) Mr. Lyta believed on reasonable grounds that force was being used against him by Mr. Michael, (

b) his act of stabbing Mr. Michael was done for the purpose of defending himself against Mr. Michael, and (

c) the act of stabbing Mr. Michael was reasonable in the circumstances. [ 292 ] It is this question of what is “reasonable in the circumstances” which in most cases of self-defence attracts the most scrutiny. [ 293 ] Section 34 (2) says that in determining what is reasonable in the circumstances the Court shall consider “the relevant circumstances of the person, the other parties, and the act” including, but not limited to, a number of factors which are listed (

a) through (h). [ 294 ] Defence Counsel has addressed each of these factors as follows: Factor (

a) mentions the “nature of the force or threat.” The Defence says here that the force used by Mr. Lyta - stabbing Mr. Michael in the arm - was intended to stop the assault with the tuuq. The stab wound went through the front and back of Mr. Michael’s bicep and entered his torso, lacerating his lung and causing him to die from loss of blood. Factor (

b) mentions “the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force.” The Defence says here that Mr. Lyta stabbed Mr. Michael while Mr. Michael was actually in the process of swinging at Mr. Lyta with the tuuq, and had already injured him. Mr. Lyta at first tried to run away but tripped. He was unable to flee the blows. Factor (

c) mentions “the person’s role in the incident.” The Defence says here that Mr. Lyta was leaving the scene when Mr. Michael came after him. Mr. Lyta did not assault or threaten Mr. Michael before Mr. Michael assaulted Mr. Lyta with the tuuq. Factor (

d) mentions “whether any party to the incident used or threatened to use a weapon.” The Defence says here that both Mr. Lyta and Mr. Michael used weapons, but that Mr. Lyta’ use of the knife was precipitated by Mr. Michael’s assault on him with the tuuq. Factor (

e) mentions “the size, age, gender, and physical capabilities of the parties to the incident.” The Defence says here that Mr. Lyta was taller and heavier, but that both were intoxicated. Mr. Michael’s girlfriend testified that Mr. Michael could become violent when intoxicated. Factors (

f) and (f.1) mention “the nature, duration, and history of any relationship or interaction between the parties to the incident including any prior use or threat of force.” The Defence here says that the two men only met each other for the first time that night. Although there was an earlier altercation at the apartment, Mr. Lyta left the apartment when asked to leave without any assault or threat of retribution against Mr. Michael. The evidence of events at the poker game are only relevant insofar as they describe the respective sobriety and demeanor of Mr. Lyta and Mr. Michael. Factor (

g) mentions “the nature and proportionality of the person’s response to the use or threat of force.” The Defence says here that given the danger posed by the tuuq Mr. Lyta’s response was proportional. His bruising shows the force with which the blows were delivered. A hard blow to the head could have inflicted serious and possibly fatal injuries. Mr. Lyta stabbed Mr. Michael in the arm in an attempt to stop the blows. The remaining fatal injury suffered by Mr. Michael is unfortunate and unforeseen, rather than evidence of any intention on the part of Mr. Lyta to kill Mr. Michael. Factor (

h) mentions “whether the act committed was in response to a use or threat of force that the person knew was lawful.” The Defence here says that Mr. Michael’s assault upon Mr. Lyta was in no way lawful; it was an unprovoked attack upon a man who was leaving the scene and not offering any threat to Mr. Michael. It appears that Mr. Michael was enraged by Mr. Lyta’s conduct at the poker game and was likely trying to recover some of the money, beer, and cannabis that Mr. Lyta had taken. None of Mr. Lyta’s actions, even if a case could be made for theft, justified the assault upon Mr. Lyta by Mr. Michael. [ 295 ] Separate and apart from these factors (

a) through (

h) the Defense says that Mr. Michael’s criminal record for violence may be considered by the Court in determining whether Mr. Lyta’s response and apprehension of injury was reasonable notwithstanding Mr. Lyta was not familiar with this history. [ 296 ] The Defence says that Mr. Lyta’s criminal record is limited to an assessment of his credibility only and that the Crown cannot rely upon it respecting any propensity for violence. The issue is, however, moot as the Crown was clear that they are not relying on Mr. Lyta’s record respecting any propensity for violence. [ 297 ] The Defence submits that Mr. Lyta’s response to Mr. Michael’s assault upon him was within the criteria set out in

Section 34 of the Criminal Code respecting self-defence and that therefore Mr. Lyta has committed no offence. He is accordingly, says the Defence, entitled to an acquittal on the charge of second degree murder.

XIV. ANALYSIS [ 298 ] Brandon Lyta is charged with second degree murder for causing the death of Levi Michael on 15 May 2020. [ 299 ] The events leading up to the tragic death of Levi Michael are unremarkable. Four young men spend an evening smoking cannabis and drinking beer, with three of them playing poker. [ 300 ] They are at Mr. Michael’s apartment in the Road to Nowhere area of Iqaluit. By the end of the evening everyone is either drunk, or stoned, or both.

At one point during the poker game Brandon Lyta was shot-gunning 5 or 6 beers within an hour. [ 301 ] In the early morning hours, as the poker game comes to an end Mr. Lyta thinks he has won. To Mr. Lyta’s surprise Mr. Michael finds the money to buy back in. Mr. Lyta, like a disappointed child, decides to grab the remaining beer and leave. [ 302 ] A ruckus or scuffle breaks out. Mr. Lyta grabs a knife from the kitchen and threatens the others who back off. Mr. Lyta then grabs the poker pot, his cannabis, and the remaining beer and leaves the apartment – out the back door and down three floors of stairs. Mr.

Lyta also takes the knife with him when he leaves. [ 303 ] A minute later Levi Michael leaves, also out the back door, obviously to confront Brandon Lyta. Mr. Michael does not have anything in his hands when he leaves the apartment in pursuit of Mr. Lyta. [ 304 ] They meet up outside, in the back parking lot. Mr. Michael winds up dead from a single, seven inch stab wound which goes through his shoulder and into his lung. Mr. Lyta is bruised on his left arm. There are no independent third-party witnesses to tell what happened. [ 305 ] Mr. Michael was 29 years old, five feet seven inches tall, and about 150 pounds.

Mr. Lyta was 23 years old, over six feet tall, and over 200 pounds. [ 306 ] Mr. Lyta testified that he killed Mr. Michael in self-defence to protect himself from getting hit in the head, and possibly killed, by an ice chisel which Mr. Michael was wielding. [ 307 ] Mr. Lyta said that after he left the apartment he heard the door slam and Mr. Michael running down the stairs and towards him in the parking lot. He said Mr. Michael was holding an ice chisel like a harpoon as if to throw it. [ 308 ] Mr. Lyta said that Mr.

Michael then began swinging the ice chisel like a baseball bat from a right-handed stance, bringing it down on Mr. Lyta’s left arm as he tried to ward off and doge the blows. Mr. Lyta said he was hit once with the sharp part of the ice chisel and several times with the shaft. [ 309 ] Mr. Lyta testified that he lunged out, with the knife in his right hand and stabbed Mr. Michael one time on left shoulder. He said “we both struck each other at the same time.” [ 310 ] After being stabbed Mr. Michael ran out into the street and jumped into a taxi which took him to the hospital. Mr.

Michael’s heart had already stopped beating when he arrived at the hospital and attempts to resuscitate him were unsuccessful. [ 311 ] Mr. Lyta testifi

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