R. v. W.A., 2022 NUCJ 28

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. W.A., 2022 NUCJ 28 Date: 20220722 Docket: 17-16-23 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: W.A. __________________________________________________________________ Before: Madam Justice Charlesworth Counsel (Crown): Counsel (Accused): M. Bryant, B. McLaren A. Crowe. S. White Location Heard: Date Heard: Iqaluit, Nunavut January 27-February 6, 2020; February 12- 20, 2020; July 27-29, 2020; September 13-17, 2021 Matters: Trial decision following charges pursuant to Criminal Code of Canada, RSC 1985, c C- 46, ss. 235(1) and 239(1) (

b) REASONS FOR DECISION (NOTE: This document may have been edited for publication) DISCLAIMER PAGE Restriction on Publication:

By court order made under

section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” Anonymized Judgment Disclaimer : This judgment has been anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties. Letters have been assigned at random. Table of Contents I. INTRODUCTION . 4 II. ISSUES . 5 III. POSITION OF THE DEFENCE . 5 A. Defence of Mental Disorder – Section 16(1) 5 B. Lesser Included Offences . 6 IV. POSITION OF THE CROWN . 7 V. DECISION . 7 VI.

THE COURSE OF THE TRIAL . 7 VII. BACKGROUND . 8 VIII. CROWN EVIDENCE . 9 A. Health Centre Witnesses . 9 B. Community Witnesses . 10 C. H.S. Family Witnesses . 11 IX. DEFENCE EVIDENCE . 13 A. Community Witnesses . 13 B. W.A. 15 C. Expert Witness – Dr. Wong . 19 i. Report of Dr. Baxter 23 X. MENTAL DISORDER . 25 XI. SECOND DEGREE MURDER AND ATTEMPTED MURDER . 26

I. INTRODUCTION [ 1 ] A tragedy occurred in a Nunavut community on May 12, 2016. Just before lunch, W.A., who was 28 years-old at the time, repeatedly stabbed each of her three children before stabbing herself. Her oldest child, six-year-old R.L. (DOB […], 2010), died of her wounds.

W.A. and her two young sons survived with the help of significant medical intervention. [ 2 ] W.A. is charged with the second degree murder of R.L. contrary to section 235(1) of the Criminal Code (RSC 1985, c C-46 ) and the attempted murders of her sons, K.D. and E.D., contrary to section 239(1) . [ 3 ] W.A. has admitted that she stabbed her children and that the stabbings resulted in R.L.’s death and serious injuries being suffered by her sons.

The facts surrounding the offences as alleged in the indictment have been agreed to in writing and were entered into evidence as Exhibit #4, tendered jointly at trial by Crown and Defence [1] . [ 4 ] The filing of the agreed statement of facts negates the need for me to recount the gruesome acts in detail.

Briefly, on the morning of May 12, 2016, the Royal Canadian Mounted Police (RCMP) received a call from a woman who identified herself as W.A. who reported that she had stabbed herself and her three children at House 186. [ 5 ] When the RCMP arrived at the house they observed H.S., W.A.’s spouse, returning to his home - which he had left earlier in the day. As the RCMP approached the home they observed H.S. running out of the house screaming and in distress. [ 6 ] The RCMP entered the home and found W.A. on a couch with a telephone. She was covered in blood.

A black handled kitchen knife was on the floor of the living area of the house. [ 7 ] Six-year-old R.L. was slumped on another couch dying from thirteen stab wounds to her heart, left lung, descending thoracic valve, liver, hands, and wrists. She was covered in blood and unresponsive. [ 8 ] On the floor in front of R.L. was four-year-old K.D. K.D. had 11 stab wounds: six to his chest and upper abdomen; three to the back; one to the knee; and one to the forearm. He had a mark across his neck reflecting the failed attempt by W.A. to slit his throat.

He was covered in blood but conscious, standing up, and crying [2] . [ 9 ] Five-month-old E.D. was also on the floor. He was face down, suffering from two stab wounds to the chest in addition to fractures of the 4 th and 5 th set of ribs. [ 10 ] W.A. pled not guilty to the charges, and the case went to trial starting January 27 2020.

II. ISSUES [ 11 ] The primary issue in this case is whether there is sufficient evidence to establish, on a balance of probabilities, that section 16(1) of the Criminal Code applies and that a verdict of not criminally responsible on account of mental disorder under

section 672.34 should be rendered. [ 12 ] If it is not established that W.A. was suffering from a mental disorder so as to exempt her from criminal liability, I must determine whether W.A. had the specific intent to murder R.L. and to attempt to murder K.D. and E.D. If I am unable to find she had this necessary intent, convictions for the lesser included offences of manslaughter and aggravated assault would follow. III. POSITION OF THE DEFENCE A.

Defence of Mental Disorder – Section 16(1) [ 13 ] W.A. alleges she suffered from a mental disorder at the time the stabbings were carried out and that this disorder negates her criminal liability. W.A.’s counsel asks the Court to find that W.A. committed the stabbings but is not criminally responsible on account of mental disorder in accordance with sections 16(1) and 672.34 of the Criminal Code . [ 14 ] If I were to find W.A. not criminally responsible for these acts, W.A. would be placed under the jurisdiction of the Nunavut Review Board (NRB).

The NRB, and not the Court, would then determine when, how, or if she could safely be released from a psychiatric facility and returned to society. [ 15 ] Section 16(1) states: No person is criminally responsible for

an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong. [ 16 ] Section 16(2) then provides: Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities. [ 17 ] Section 16(3) places the burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility on the party that raises the issue.

W.A. concedes she committed the acts and has raised the issue of mental disorder as a defence. W.A., and not the Crown, bears the burden in this case of establishing a mental disorder defence. [ 18 ] In support of this defence, W.A. called as a witness Dr. Gina Wong, a psychologist, who was qualified at trial as “having expertise in postpartum depression and perinatal mood and anxiety disorders.” [ 19 ] W.A. did not call a forensic psychiatrist to give evidence in support of her Section 16(1) defence. B. Lesser Included Offences

[ 20 ] If I find W.A. has not satisfied her burden and is criminally responsible for the attacks on her children, I must then determine whether she had the specific intent required for convictions of second degree murder and attempted murder. [ 21 ] W.A.’s counsel asserts that if I find W.A. criminally responsible, the mental health issues present were sufficient to prevent her from forming the necessary specific intent to kill and attempt to kill her children. Therefore, it is argued, W.A. should be found guilty of the lesser included offences of manslaughter and aggravated assault. IV.

POSITION OF THE CROWN [ 22 ] The Crown’s position is that an objective analysis of the evidence shows that W.A. does not meet the

section 16 balance of probabilities onus to support a finding that she is not criminally responsible; that she is criminally responsible; and that the Crown has proven beyond a reasonable doubt that she had the specific intent necessary for convictions for second degree murder and attempted murder. Accordingly, W.A. is guilty as charged. [3] V. DECISION [ 23 ] For the reasons that follow, I find that W.A. did commit the acts alleged in the indictment, which were admitted by her.

I further find she has failed to establish that she was suffering from a mental disorder at the time of the stabbings that rendered her incapable of appreciating the nature and quality of the acts or knowing that those acts were wrong, and that she is criminally responsible for the crimes for which she has been charged.

I find that W.A. specifically intended to kill her three children when she attacked them on the morning of May 12, 2016. [ 24 ] Accordingly, W.A. is guilty of the second degree murder of her six-year-old daughter R.L. contrary to section 235(1) of the Criminal Code and the attempted murders of her then four-year-old son K.D. and her then five-month old son E.D. contrary to section 239(1) of the Criminal Code . VI. THE COURSE OF THE TRIAL [ 25 ] The trial started on January 27, 2020 in the community and evidence given in that community was completed on February 6, 2020.

The trial was adjourned to February 12, 2020 for W.A.’s evidence which was heard in Iqaluit. The trial was further adjourned to July 27, 2020 to hear the evidence of Dr. Wong. Dr. Wong’s evidence continued for three days and then the trial was adjourned at the request of the Defence, to enable them to consult a forensic psychiatrist. [ 26 ] In part because of Court availability issues during the COVID-19 pandemic, the trial was not continued until September 13, 2021. On this date the trial recommenced with the continuation of Dr. Wong’s evidence and cross examination by the Crown.

The evidence was completed by September 17, 2021. No other expert witness was called. [ 27 ] Defence Counsel provided written submissions on January 24, 2022 and the Crown filed its submissions on March 22, 2022. VII. BACKGROUND [ 28 ] I start with a brief review of the facts as established by the evidence in this case.

[ 29 ] W.A. was born in June 1988 in NWT (now Nunavut). She was raised by her grandparents, as is common in Nunavut, at least in part because her mother had one-year-old twins at the time of W.A.’s birth. She has a large extended family in her home community. [ 30 ] H.S. was born around 1990, also in the community. W.A. and H.S. got together in their late teens and had three children. R.L. was six years old at the time of her death, K.D. was four, and E.D. was almost five months old. [ 31 ] Their lives were not easy.

H.S. had occasional jobs, working for the Hamlet as a water-truck helper and as a small engine mechanic for a friend. W.A. worked as a dental assistant a few weeks a year and occasionally at the grocery store in town. By the time E.D. was born in late 2015, their income was solely from income support and Child Tax Credits. W.A. and H.S. smoked cigarettes and marijuana regularly, which was costly. Family members in town occasionally provided them with food or cash. [ 32 ] H.S. suffered from undiagnosed schizophrenia, which caused his behaviour and mood to be erratic.

Their infant, E.D., suffered a condition that caused him to projectile vomit, which had to be repaired surgically in hospital in Winnipeg, an airplane ride away. E.D. and W.A. travelled there twice during his first four months of life. There was also evidence about mutual jealousy and infidelity. VIII. CROWN EVIDENCE A. Health Centre Witnesses [ 33 ] Dr. Alan Lam is an Ear, Nose and Throat surgeon who treated W.A. and the three children in the community the date of the incident. He had been going up to the community every six months for over ten years.

He described the wounds to all four people brought to the Health Centre on May 12 and said many were quite dangerous as they were stab wounds in and about the chest cavity. He tried to resuscitate R.L. for about two hours before she succumbed to her injuries. W.A. also seemed to be in bad shape at first, but she then stabilized. [ 34 ] S.D. is married to W.A.’s uncle and has known W.A. all her life. She is a Community Health representative and was working at the Health Centre in the community on May 12.

While getting the x-ray machine from the room W.A. was in, W.A. said, “tell Uncle I love him.” They hugged each other and were crying when W.A. said she was sorry and that she “didn’t finish my job”. She also told S.D. that her partner was controlling and abusive. [ 35 ] The Mental Health Nurse in the community at the time was asked to “look after” W.A. She did not seem to be very conscious, so he tried to wake her up, and asked her questions to keep her awake.

He was surprised that she knew who he was, by name, and when he asked, “who did it?” she said, “I did.” When asked why, she replied, “My boyfriend was cheating on me.” When they heard people upset in the foyer (he found out later it was because R.L. had passed away), W.A. said, “I didn’t mean to do that; would you pray for her?” [ 36 ] A nurse with extensive trauma experience was also at the Health Centre that day. She was in the community for the third time in May 2016. She stayed for six weeks each visit and knew W.A. since her first trip in 2014.

She said she probably had seen W.A. ten or more times by May 2016, as W.A. brought her children in to the Health Centre if they were sick, for regular appointments, and when called in for immunizations. In her experience, W.A. never missed a health appointment. When she went to check on W.A., she asked her what had happened. W.A. replied that she “just couldn’t take it anymore; everybody’s saying things about me.” [ 37 ] A.H. worked at the Health Centre as a clerk/interpreter for 22 years and was there on May 12, 2016. Her brother is H.S.’s father.

W.A. said she was sorry three times when A.H. saw her, and also talked about having had a dream four years earlier that she killed her daughter. A.H. also agreed that on that day W.A. told her that, “deep inside of her she’s crying but it can’t come out.”

[ 38 ] Dr. Diep is a dentist in Nunavut who had visited the community at least four times. She met W.A. when she brought her children in to the dentist: K.D. on May 5, 2016 to have two teeth removed, and R.L. on May 6, 2016 to have one tooth removed and another worked on. Dr. Diep found W.A. to be talkative, positive, caring, and supportive towards dental treatment. She thought W.A. was a good mom and had fun seeing her those two days. Dr. Diep was working in the Health Clinic on May 12 when W.A. and her children were brought in. Dr.

Diep did not remember speaking to W.A. on that day, but accepted that she gave a statement in which she told the police that W.A. knew she was the dentist, and told her, “I was jealous; I think I have STD.” B. Community Witnesses [ 39 ] Three people gave evidence about being at the W.A./H.S. home on the evening of May 11, 2016: D.F., G.I., and C.R. who is H.S.’s cousin and G.I.’s boyfriend. The two women described playing games with W.A. and seeing scratches on her face.

C.R. interacted with K.D. but not H.S., who was in the bedroom most of the time that C.R. was there. [ 40 ] G.I. also described a fight between W.A. and H.S. about a month before May 12 in which W.A. was punched and then thrown to the floor when H.S. grabbed her shirt. G.I. tried to stop the interaction but was threatened by H.S. and so she “just stood there.” C.R. described a similar incident (likely the same one) when H.S. and W.A. were wrestling, and G.I. tried to stop H.S. from putting W.A. down on the floor.

H.S. tried to “put her (G.I.) down with words” and when C.R. tried to stop him, he did the same to C.R. [ 41 ] D.G. and his partner, E.M., also gave evidence about a conversation with W.A. before the incident. W.A. spoke about having a dream that she was going to cut her children. D.G. said the conversation happened at his house when W.A. came by to ask for money, a few weeks or a few months before May 12. D.G. gave her a few puffs of pot before she mentioned the dream and he remembers that H.S. was mad that week. D.G. gave her some money at that time.

E.M. said she was with D.G. at W.A.’s home, playing and talking in February 2016 when W.A. unexpectedly talked about dreaming about killing her kids and herself by stabbing. E.M. agreed that she told the Crown, during witness preparation the week before the trial, that W.A. told her about having a similar dream when K.D. was a baby. Both times, E.M. urged W.A. to speak to Elders. [ 42 ] K.N., who has known W.A. most of her life, shared a room at the Medical Boarding Home in Winnipeg for two nights with W.A. who was there for an appointment for E.D.

She described W.A. saying that “she even thinks to kill herself and her baby” and/or that “there was nothing left but to kill herself and her kids”. W.A. told her there was no money for food, and H.S. was “just taking drugs”. [ 43 ] N.B. is a little younger than W.A., and lives in the community with her partner and their three children. On May 3, 2016, N.B. and her partner were in the Income Support Office at the same time as W.A. and H.S. when N.B.’s partner told W.A. that their respective partners had had a recent one-night stand.

W.A. punched N.B. in the nose and told her to leave H.S. alone. [ 44 ] H.F. saw her younger, adopted sister W.A. at the boarding home in Winnipeg on one of the occasions she was there with E.D. shortly prior to events of May 12. W.A. told her older sister something like, “I don’t want to live anymore, and I don’t want my kids to be around anymore in this state” and “I want to kill myself and don’t want the kids in this world because it’s too hard.” H.F., who herself was in an abusive relationship, urged W.A. to get her kids and find a safe shelter. C. H.S.

Family Witnesses [ 45 ] H.S.’s older sister talked about her brother’s mental health problems that make him hear voices and be paranoid. The medication he now receives every two weeks calms him down; he is much worse if he “doesn’t get the needle (his medication)”. She also described that W.A. was a good mom, but when her brother was not around, W.A. would push, grab, pinch, or yank the children if she got angry. H.S. controlled W.A.’s behaviour and she was afraid of him. [ 46 ] N.W. is H.S.’s aunt, although she is similar in age to W.A., and has been friends with her since she met H.S.

N.W. described an incident a couple of months before May 2016, when she visited W.A. There was frozen caribou meat on the floor, and H.S. was not home, when W.A. grabbed a butcher knife and said she was sick of being treated like she’s no good by H.S. and his family. She started stabbing the frozen meat and said, “I’m going to do this to myself and kids one day.” N.W. grabbed the knife from W.A. and tried to reassure her that she’s a good mother. N.W. also said she had seen W.A. being yelled at by H.S., calling her a useless mother “and

whatnot.” [ 47 ] H.S.’s father also gave evidence. He said that W.A. and H.S. lived with him and his wife for about six years, until they moved out to their own home when K.D. was about a year old. He said W.A. would yell and punch at H.S. sometimes, and he visited them daily after they moved out, to be sure the kids were all right. He also said that W.A. would sometimes talk to someone or something that was not there, and they tried to get her help while she was still living with them. [ 48 ] H.S., K.D., and E.D. all currently live with H.S’s father.

He confirmed that H.S. was diagnosed with schizophrenia after the incident, and that he does much better on medication. He also said that they had people over from the church to try to help W.A. when she lived at their house, because she sometimes seemed possessed, and an angry voice she never uses would come out of her. This happened when K.D. was one year old. [ 49 ] H.S. described meeting W.A. through his older sister when he was between 17 and 19 years old. They lived with his parents for a while and they both worked occasionally.

After they moved to their own home, H.S. would occasionally have to ask family members or friends for food or money, partly because they both smoked about a pack of cigarettes a day, and occasionally smoked marijuana together. [ 50 ] H.S. said he helped a lot around the house, but W.A. would often complain that he did not help enough. He said W.A. would occasionally hit herself and would yell or push at the kids. When they argued, it was often about W.A.’s father/grandfather, who he said abused her as a child. H.S. admitted that he had a one-night stand with N.B. and said it was because W.A. cheated on him.

During this part of the evidence, H.S. got upset and walked out of court. Upon resuming, H.S. explained that he had cheated with N.B. because W.A. had cheated on him. [ 51 ] When E.D. was a newborn, W.A. told H.S. two times that she had a dream that she killed the kids. He said she also had a dream like that when R.L. was young. [ 52 ] On cross examination, H.S. denied that he shook, grabbed, and pushed W.A. into a coat hook in 2015 (this incident was also described by W.A., below); he said he tried to calm her down because they were mad at each other: “I heard something bad; I don’t know.” IX.

DEFENCE EVIDENCE A. Community Witnesses [ 53 ] W.A.’s birth mother, F.R. said W.A. was adopted to her parents, because she had twin girls, B.B. and A.A., who were one year old when W.A. was born. After R.L. was born, F.R. would see W.A. from time to time with the kids; they would come to her house about once a year. Early in 2016 when W.A. was in Winnipeg with E.D., she called F.R. to say she did not want to go back to H.S.’s house: he would beat her up because he thought she was with another guy. F.R. told W.A. she could come stay with her, but that did not happen.

W.A. also said she was tired of taking care of the kids all by herself. [ 54 ] The next time F.R. heard from W.A. was on May 12, 2016, when she called and said, “I’m dying; I stabbed myself lots of times.” [ 55 ] G.H. is married to W.A.’s brother and has known her since she was a baby. She said W.A. told her H.S. controlled the child tax money and used it to buy drugs. W.A. would take food home from visits because H.S. was taking the child tax money. When W.A. would visit with the children, she would tell G.H. that H.S. was timing her, so she could not stay long.

She saw bruises on W.A.’s arms which W.A. said came from H.S.; W.A. would ask for food every time she visited. [ 56 ] B.B. is one of the twin daughters of F.R. who is a year older than W.A. B.B. said W.A. told her she had a time limit for visits, and she would have bruises on her arms “every time I finally saw her after 1, 2, or 3 weeks.” W.A. would say she hit herself. B.B. said she paid H.S. $20 a few times, so he would go away, and she could visit with W.A. for about two hours. B.B. agreed that she told Dr. Wong

that W.A. seemed a bit jealous of R.L., who got “all the love from her dad, when it should be between the two of us.” [ 57 ] B.A. is another daughter of F.R., who is younger than W.A. She remembers W.A. saying she could only visit their mom’s if H.S. gave permission , and said she only saw a bruise on W.A.’s arm once. Sometimes when visiting the W.A./H.S. home, B.A. would see H.S.’s face “show mad”.

B.A. agreed that she did not like H.S., and neither did her parents, and that many families in the community have problems with food insecurity, and may ask friends or family for help, especially toward the end of the month. [ 58 ] A.A. is B.B.’s twin, and they used to hang out a lot with W.A. when they were young. Although W.A. and H.S. did pretty well, she saw arguments between them after a while, and lots of arguments after E.D. was born. W.A. would complain that she needed a break, as she was tired and did not have enough time for herself, but H.S. would not allow it.

W.A. asked for money a few times and A.A. would help her buy things for the kids. Once W.A. talked about suicide to get away from H.S., and she tried to separate from him a few times, but he would say he loved her. W.A. even said she would do something bad to go to jail and get away from H.S., before E.D. was born. A.A. did not see any physical abuse between them. [ 59 ] T.K. is W.A.’s adoptive brother and cousin, who was two months younger than her; both were raised by their maternal grandparents.

T.K. met H.S. when W.A. got together with him; he thought the relationship was awesome at first, but then it changed. He would see H.S. not supporting W.A. and treating her badly. He saw bruises on W.A.’s arm more than once, but she did not say what caused them. [ 60 ] P.B. is six years older than W.A. and was also adopted to her grandparents; W.A. was like her little sister. W.A. used to come to her house to help clean it, but that stopped in December 2015; W.A. would say she was not feeling well, but then P.B. would see her out with the children. She thought that was odd.

R.L. also stopped coming over to visit, and even stopped going to school. P.B. visited the W.A./H.S. home once at lunch time shortly before May 12, 2016. She saw H.S. take extra food for himself, which she did not like. The family seemed to be always short on food; their money seemed to be spent on marijuana. P.B.’s husband is the mechanic who H.S. sometimes worked for. [ 61 ] C.R. is W.A.’s younger half-sister; F.R. is their mother. When she was young, she saw W.A. every day, but after W.A. started going out with H.S., the visits were reduced.

She knew that W.A. smoked pot and that money was tight, and it seemed that often H.S. would be mad, based on his facial expressions. [ 62 ] J.G. is W.A.’s cousin. W.A. would visit her place and would say they did not have food. A number of times, W.A. said she was getting really tired of H.S.; that he was using too much marijuana and would sometimes hurt her. Before E.D. was born, W.A. indicated to J.G. that she would stab her children and then herself. J.G. cried with her and told her not to do that. W.A. called J.G. from Winnipeg in December 2015 to ask if she could move in with her, but that never happened.

Sometimes, W.A. talked about money problems and J.G. would give her some money for groceries or tell her to come over to eat. She barely saw W.A. after E.D. was born. [ 63 ] D.B. is a childhood friend of W.A., although W.A. is two years older. Once W.A. met H.S., they were not as close as before; D.B. dated him a bit and did not think he would be good for W.A. D.B. saw H.S. screaming at W.A. a few times, and once saw him throw something at her but she moved and it missed. She saw bruises on W.A.’s body more than three times after K.D. was born, and she knew food was a problem.

D.B. also noticed scratches on W.A.’s face shortly before May 12, 2016. B. W.A. [ 64 ] W.A. gave evidence about her upbringing and chaotic life with H.S. both before and after having children with him. She got together with H.S. in her late teens and was 22 years old when R.L. was born on […], 2010. W.A. said H.S. was physically and mentally abusive for much of the relationship. [ 65 ] W.A. described an incident when H.S. pushed her into a wall with coat pegs and broke her ribs. Although she had bruising on her back, the medial information confirms that no ribs were broken.

H.S. was charged with assault for that incident and placed on probation. She said she had some dreams about a dead child, but it was not any of her children. She also said that she and H.S. broke up many times, and she would sometimes have affairs when that happened.

[ 66 ] W.A. described the day in May 2016 when she stabbed her children and herself. In examination in chief, she said she could not remember what happened after she was poked awake by H.S. on the morning of May 12 until she saw blood, her daughter “fading” near the couch, K.D. walking around, and E.D. face down on the floor. She called her mom, F.R., and said she was sorry; then called the police. Later, W.A. said she remembered stabbing herself in the left chest, under her left breast, and in the abdomen, stomach, and neck.

She said she thought the children were already hurt. [ 67 ] On cross examination, W.A. gave many more details about that day. As summarized in the Crown’s Trial submissions: In cross-examination, [W.A.] testified that she recalled the events of May 12, 2016. She felt her life was difficult, her husband controlling and that she was getting to the point where she could not take it anymore. She agreed that she was not going to be “pushed around”. W.A. stated that she was not going to leave her children with her husband, as he would not let her take her children when she left or was kicked out of the house.

She did not testify to acting under compulsion (either delusional or hallucinatory). During her testimony, when providing many reasons for being angry and resentful of H.S. she agreed, but she did not agree that she had acted out of anger with respect to her children. [ 68 ] W.A. repeatedly acknowledged on cross examination that she could remember the events of May 12, 2016. W.A. admitted, in response to questions asked of her by Crown counsel, that she was trying to kill her children by stabbing them.

The admissions are found beginning at page 1296 of the trial transcript: Q: Well what things did you do that you didn’t know what you were doing? You knew when you tried to slit K.D.’s throat, right? A: That, yes. Q: And you knew when you did that, that what you were doing was you were trying to kill him, weren’t you? W.A.? It’s a hard question to answer, and I’m going to wait a bit. But you have to answer the question, W.A. A: Yes. Q: And when you went after your daughter, R.L., you were trying to kill her, weren’t you? A: Yes. Q: And that's why you stabbed her so many times, right?

A: I -- I don’t know how many times, but yes. [4] … Q: So, W.A., I’m going to --- I am going to give you some numbers now, and I know that you weren’t keeping count when this happened. R.L. was stabbed seven times in the chest. She was stabbed once in the side that went into her heart. She was stabbed three times in the back, twice in her shoulder, and she also had stab wounds on her left wrist, her left hand, her right hand. And those were all stab wounds and cuts that you made, right, W.A.? A: Yep Q: And you made all of those stabs because you were trying to kill her, weren’t you? W.A.?

A: Not just her. Q: I didn’t say that. You were trying to kill her though, weren’t you? A: Yes. Q: And she knew what you were doing when you were stabbing her, didn’t she? A: I don’t know. Q: Did you drug her? A: No. Q: Did you knock her out? A: No. Q: Did she try to get away? A: I believe so. [5] … Q: So E.D. was stabbed in his chest just about where his heart would be, right? A: I don’t know. Q: Did you see the pictures? A: Sort of, yes. Q: Okay, I’m going to show you one picture, its from (Exhibit 3). And it’s a picture of E.D. … Q: Okay. That’s E.D. Do you see where those blue stiches are?

A: Yes. Q: There's stab wounds, more than one there. Do you remember hearing the doctor who treated him at the Health Centre talk about that? A: I didn’t really focus. It was too hard. Q: Okay. I’m going to say to you though that that’s where you stabbed E.D., and that’s – and you stabbed him right there because you were trying to kill him, weren’t you? A: Yeah. [6] … Q: Okay. I’m going to show you photograph number 5. I’m going to tell you that this is – that this is K.D., because in making this picture I looked for one that didn’t have his face in so I didn’t have to show you that.

But I’m going to show you this picture and tell you that this is your son, K.D. Do you see that? Do you see there are six stab wounds on his chest? A: Yes. Q: You stabbed up by the left shoulder, by the right shoulder. There’s three that go across the middle of his chest, and then there’s one down below on the left hand side. Those were all made by you, weren’t they W.A.? A: Yes. Q: They were made by you stabbing him because you were trying to kill him, weren’t you? A: Yeah. Q: The knife that was used was one from your own house, right W.A.? A: Yes. Q: It was part of a set of steak knives? A: Yes.

Q: You went to the holder and you took that knife out, didn’t you? A: Looks of it, yes.

Q: Well is that something that you remember? A: Sort of. Q: Okay. When you took the knife out, you took it out because you were going to use the knife to kill yourself and to kill your kids, right? A: Yes. Q: And I’m going to use the word “plan”, but I’m not using it in the legal sense. But the plan that you had in your head, W.A., when you took that knife out of the knife holder, was that you were going to kill – try and kill all of you, you and the three children, right? A: Yes. [7] C. Expert Witness – Dr. Wong [ 69 ] Counsel for W.A. called Dr.

Gina Wong, who has a PhD in psychology, to support the defence of mental disorder. The Crown conceded that Dr. Wong qualified as an expert witness in the areas of “postpartum depression and perinatal mood and anxiety disorders.” [ 70 ] However, while the Crown accepted her academic credentials, the Crown did not concede that Dr. Wong was qualified as a forensic psychologist capable of giving an opinion on criminal responsibility. [8] [ 71 ] The Crown’s position was that Dr.

Wong “did not have any experience, therapeutic or otherwise, in treating women who have killed or harmed their children.” [9] [ 72 ] This trial was Dr. Wong’s first experience as an expert witness in Court. The Crown “advised the court of the essential consideration of the weight to be given to her evidence after Dr.

Wong described her lack of experience in forensics, preparation of criminal assessments, and having been involved in only two cases of “maternal filicide” of which W.A.’s was the only one that has gone to trial at the time of her testimony” [10] . [ 73 ] As noted above, the trial was adjourned during Dr. Wong’s evidence for over a year for, among other things, the Defence to consult a forensic psychiatrist. When the trial resumed, no forensic psychiatrist was called. Dr.

Wong had updated her report to discuss her opinion about W.A.’s cross examination (which she was not qualified to opine on) and continued her testimony. [ 74 ] Dr. Wong met with W.A. in the jail in Iqaluit for many hours between February 13 – 16, 2017, and continued her assessment of W.A. over video after that. She visited the community for a week in June 2017 where she interviewed 14 family members of W.A. Dr. Wong said she tried to reach out to the H.S. family, but no one responded to her. While in the community, Dr. Wong was staying in a house with Defence Counsel.

She did not at that time try to access any police statements given by witnesses, including a lengthy statement by H.S. in the immediate aftermath of the incident and the statement of the mental health nurse who dealt with W.A. at the Health Centre on May 12. Dr. Wong’s opinion does not consider much of the evidence that was heard at trial about W.A.’s utterances and behaviour on May 12 . [ 75 ] Dr. Wong said she attempted to use some standard tests to assess W.A. but felt that most of them had practical and/or cultural difficulties and so she did not continue with them. Dr.

Wong agrees with the Truth and Reconciliation Commission Report that most psychiatric assessments are not appropriate for Indigenous populations. The psychological tests administered and their completion status are as follows:

• Edinburgh Postpartum Depression Scale (EDPS) – “the gold standard internationally to assess for postpartum depression.” Not completed. • Adverse Childhood Experiences Scale. Not completed. • Hare Psychopathy Checklist to see if any psychopathy was involved. • Defensive Style Questionnaire to assess whether there were emotional maturity defensive types of presentations. Not completed. • Beck Depression Inventory. Not completed. • Beck Anxiety Inventory. Not completed. [11] [ 76 ] Instead of standard tests, Dr. Wong spoke directly to W.A. for many hours. [ 77 ] In Dr.

Wong’s opinion, W.A. suffered a “brief psychotic disorder with marked stressors” on May 12, 2016, that caused her to be out of touch with reality, and not able to think logically. Such disorders could be accompanied by hallucinations, delusions, disorganized speech or catatonia (the inability to move.) Dr. Wong did not specifically say that this disorder rendered W.A. incapable of appreciating the nature and quality of her acts, or of knowing that they were wrong. [ 78 ] The information that helped Dr.

Wong come to that conclusion included: • W.A.’s experience in earlier pregnancies (she was hospitalized and diagnosed with psychosis not specified 11 months after R.L. was born) • Other psychiatric history, including her first hallucination at age 17 that she described to Dr.

Wong • Four to five occasions when she felt possessed • Four to five attempted exorcisms • Paranoid delusions, including auditory, thinking people were watching, and dreaming of cutting kids • Hearing unfamiliar voices • Four episodes of being possessed: using a deep voice, talking to herself and looking different • Instances of blacking out • Attempted suicide by hanging when R.L. was ten months old • Having a vision of a woman who looked like her, telling her to come to the golden mansion in Heaven. [ 79 ] The stressors Dr.

Wong identified after E.D.’s birth, from discussions with W.A., included: • H.S.’s anger because breastfeeding stopped early when her milk dried up • The medevac to Winnipeg for E.D.’s surgery, when she was yelling and crying while walking to the Health Centre with E.D. on

her back; H.S. refusing to take E.D. although she was sleep deprived and asked him to • H.S. calling her a bad mother for not wanting to go with E.D., accusing her of cheating and saying, “I’ll do something to you that I’ve never done before” • Scratching her own face during an argument that she had cheated on H.S. • Returning to H.S. after he begged, but he continued to be controlling • The woman who told her that H.S. had cheated with her in her own bed • H.S. grabbing R.L. and tossing her out of the room when R.L. came in during an argument between her parents • She told H.S. she wanted to kill herself and he threw her a belt • H.S. raped her [ 80 ] It is important to note that many of these stressors were not proven in the trial; they came out of discussions between Dr.

Wong and W.A. i. Report of Dr. Baxter [ 81 ] W.A. was assessed by Dr. Cynthia Baxter, a forensic physiatrist, on June 25, 2016, a month after the children were stabbed. The forensic psychiatric assessment was requested by Defence counsel to assess W.A.’s fitness to stand trial, issues around criminal responsibility, and mental health status. The report was entered as Exhibit 29 during the cross examination of Dr. Wong. [ 82 ] Dr.

Baxter made the following conclusion in relation to W.A.’s criminal responsibility in her Forensic Psychiatry Assessment dated February 17, 2017: Regarding the issue of criminal responsibility, there is no evidence that W.A. had a mental disorder that rendered her incapable of the nature and quality of the act or of knowing that it was wrong. There is no evidence that she was suffering any kind of psychotic disorder at the time which would impair her contact with reality, or that she has any type of cognitive disorder that would limit her ability to appreciate her actions or consequences.

In fact, W.A.’s ability to understand what she was doing is evidenced by her decision to stop and call 911 for help. In her own words, she decided, “I’ve got to try to save them,” instead of proceeding with the violent assault further. [12] [ 83 ] Dr. Baxter also wrote the following on pg. 7 of her assessment under the Index Offence section: On the morning of the day in question, W.A. stated that H.S. awoke her harshly by poking her hard with two fingers and she believed he was upset. She said that he had a mean look on his face and she told herself, “Not another fucking day [of this]”.

She said she could not handle another day of his abuse (alleged both verbal and physical abuse to her and the children) and said to herself that if that day was as bad as she thought it was going to be “My kids are going to watch again, my kids are going to see again” her getting abused. She decided to kill herself and her children in order to prevent them from having to live this difficult life any longer. At the beginning of the incident, all three children were apparently on the couch and K.D. was the first victim.

She recalled saying to the children at the time, “I’m sorry, your father’s being mad again, I can’t take this anymore, I’m sorry.” At some point, she realized what she was doing was terrible and then called police because, “I’ve got to try to save them.” She appeared genuinely remorseful during the assessment. [ 84 ] Dr. Wong did not mention or consider Dr. Baxter’s Report in either her first or supplementary opinions. Dr. Wrong testified on cross examination that Dr. Baxter’s report was not material to the opinion she formed on W.A. or the reports she produced articulating that opinion. Dr.

Wong conceded that Dr. Baxter met with W.A. for 5.5 hours on June 25, 2016 for the purposes of carrying out the examination and reviewed a number of the same documents Dr. Wong consulted in preparing her report.

[ 85 ] Dr. Wong also agreed with Crown counsel that Dr. Baxter is a significantly experienced forensic psychiatrist, as evidenced by Dr. Baxter having completed over 500 psychiatric assessments for the court, in addition to sitting on Alberta’s Review Board. Dr. Wong also agreed that the personal history

section of Dr. Baxter’s report substantially mirrors the personal history of Dr. Wong’s report and that the description of the index offence, essentially was duplicated in Dr. Wong’s report. [ 86 ] Dr. Wong agreed that Dr. Baxter had arrived at the conclusion that there was no evidence that W.A. was suffering any kind of psychotic disorder at the time which would impair her contact with reality while Dr. Wong’s conclusion was W.A. experienced a psychotic break on May 12, 2016. X.

MENTAL DISORDER [ 87 ] W.A. has the burden of satisfying me on a balance of probabilities (that is, it is more likely than not) that at the time she stabbed her children she was suffering from a mental disorder that made her incapable of appreciating the nature and quality of that act, or of knowing that the act was wrong. [ 88 ] I find Dr. Wong’s opinion that W.A. was not criminally responsible for her actions is not sufficiently supported by the evidence in this case for me to make such a finding. [ 89 ] Dr.

Wong is a clinical psychologist with no previous experience in determining whether or not a person is criminally responsible. In my view, she did not approach the information provided to her with a critical eye and did not consider whether there could be a non- psychotic motive for W.A.’s actions. She did not consider whether W.A. could appreciate the nature and quality of the acts she performed, that the fact that W.A. stopped what she was doing and called for help suggests she knew what she was doing was wrong, or whether W.A. actually understood the legal and moral wrongfulness of her actions. [ 90 ] Dr.

Wong also did not consider the opinion of Dr. Cynthia Baxter, a forensic psychiatrist with many years of experience in providing psychiatric assessments and opinions in criminal matters for the Court in Alberta. [ 91 ] Dr. Baxter met with W.A. about six weeks after the offences were committed, after reviewing mental health nurse notes, a wellness assessment, psychiatry consultation notes and a

summary of the offences. Although Dr. Baxter acknowledged diagnostic possibilities including cannabis-induced mood disorder, borderline personality disorder and major depressive disorder with post-partum onset, she did not find any evidence that W.A. “had a mental disorder that rendered her incapable of appreciating the nature and quality of the act or of knowing that it was wrong.” Dr.

Baxter also pointed out that “W.A.’s ability to understand what she was doing is evidenced by her decision to stop and call 911 for help.” [ 92 ] I cannot find, on a balance of probabilities, that W.A. was suffering from a mental disorder on May 12, 2016 that made her incapable of appreciating the nature and quality of the act of stabbing her children in the chest area with a knife, or of knowing that it was wrong. [ 93 ] I heard a lot of evidence about W.A. and her family’s lives during the course of the trial.

Although not all of it was consistent and some may have been embellished, it is clear to me that W.A.’s life was not easy. She was the mother of three young children living in poverty. Her relationship with her intimate partner was plagued by mental health issues, abuse, support issues, infidelity, jealousy, and myriad other stressors.

[94] But W.A. was also surrounded by extended friends and family in her community who provided her emotional and financial supportand who listened as she recounted stories of her thoughts and nightmares of killing herself and her children in the months and weeksbefore the tragic day. I have no doubt W.A. found her life too difficult to continue with on May 12, 2016. I also, however, have no doubtthat she made a conscious decision to end the lives of her three young children as well. XI.

SECOND DEGREE MURDER AND ATTEMPTEDMURDER [95] In its written submissions the Defence asked me, if I were to find W.A. criminally responsible for the stabbings, as I have nowdone, to consider whether W.A. should be found guilty of manslaughter and two counts of aggravated assault rather than murder andattempted murder. [96] In support of the Defence argument, a series of cases were submitted for consideration.

The first eight cases[13] mentioned insupport of this proposition are cases where the accused pleaded guilty to manslaughter and are not helpful in deciding whethermanslaughter based on mental issues that do not rise to the level of a s. 16 defence is an available verdict in this case. [97] The other case cited in support of the suggestion is R. v. Rooney, , PEI SCTD, where the trial judge had toconsider whether to convict the accused of murder. In that case, the Judge found several bases for finding that the accused did not havethe specific intent to murder: “. . .

I have a reasonable doubt that the accused had, or was able to form, the required s. 229 specific intent to commit murder. Thisreasonable doubt exists upon consideration of each, and of all, the following:

i) provocation - the accused may have acted in the heat of passion caused by sudden provocation; ii) lack of mental capacity - the accused suffered from a mental disorder at the time of killing, so that while he may have been sane, hemay not have had the mental capacity to form the specific intent to commit murder; iii) lack of specific intent - if the accused acted in self-defence, his actions were excessive; in all of the circumstances of thesurrounding events and the state of his own mind, he may not have formed the specific intent to commit murder. [Emphasis added] [98] In Rooney, the judge considered a combination of three possible defences: provocation, mental disorder, and self-defence, thattogether raised a doubt in his mind about whether Mr.

Rooney had, or was able to form, the specific intent required for a conviction formurder. I do not find that Rooney supports a general proposition that a mental disorder short of a s. 16 finding on its own can ground averdict of guilty of manslaughter. [99] The Criminal Code of Canada sets out the definition of murder in

section 229: Culpable homicide is murder (

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

i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;

[100] The Criminal Code also defines attempted crimes, in section 24(1): Every one who, having an intent to commit an offence, does … anything for the purpose of carrying out the intention is guilty of anattempt to commit the offence… [101] Second degree murder and attempted murder are specific intent crimes. This means the Crown has the burden of proving beyond areasonable doubt that W.A. intended to commit the unlawful acts with a view to achieving a certain result: the death of her children. [102] Justice Bychok of this Court in the recent decision of R v.

Mucpa, 2022 NUCJ 24 summarized what must be considered by thetrier of fact when determining the specific intent mens rea requirement of second degree murder at paragraph 19: To decide whether the Crown has proven that [the accused] intended to kill [the victim], I must consider all the circumstances containedin the evidence including what [the accused] said and did. I must also consider the nature of the injuries he inflicted on [the victim]which resulted in her death.

Thus, in order to convict [the accused] of second degree murder, I must be satisfied that he assaulted [thevictim] intending to kill her, or that he intended to hurt her in a way that was likely to kill her and he was reckless whether she died or not. [103] Justice Bychok then considered the impact mental disorder may have on the ability of an accused to form the specific intentnecessary to be found liable for second degree murder. At paragraph 21: There is also evidence that [the accused] was suffering from mental illness on July 3.

That [the accused] suffered from mental illnessdoes not automatically reduce his criminal responsibility. A person with mental illness may still be able to form the specific intent to killif he appreciates the nature and quality of his actions and he knows those actions are legally wrong (R v. Kirkby, CanLii 3646, (ON CA), [1985] O.J. 166 OCA, p. 61). I must decide whether his mental illness is more likely than not to have made himunable to appreciate the nature and quality of his actions, and whether those actions were legally wrong.

Again, if I have doubt on thisissue, I may only find [the accused] guilty of manslaughter. [104] In this case, the Crown has proven beyond a reasonable doubt that W.A. had the specific intention to cause the deaths of herchildren on May 12, 2016. On cross examination W.A. clearly and repeatedly admitted that she intended to kill each of her three childrenon the morning of May 12, 2016 and stabbed each of them multiple times to carry out the killings.

W.A. was engaged in the crossexamination, sometimes adding to the suggestions put to her by the Crown. [105] At least four witnesses gave evidence that W.A. had spoken to them about hurting her children; W.A. and three other witnessesspoke about her having dreams of hurting children.

It is clear that she had had thoughts about doing so on occasion and understood thepossible consequences. [106] W.A. admits to having called the RCMP and her biological mother immediately after the attacks to advise of what she had done.At the health centre, while being treated for her injuries in the moments after the attacks, W.A. told a nurse, in response to the nurseasking what had happened, that W.A. “just couldn’t take it anymore”. W.A. told A.H., a clerk/interpreter at the health centre, that shewas sorry three times.

When W.A. was asked by a mental health nurse at the health centre, “Who did it?”, W.A. responded, “I did”.When the mental health nurse asked why, W.A. responded: “My boyfriend is cheating on me.” [107] W.A. stabbed R.L. 13 times on the morning May 12, 2016. She stabbed K.D. 11 times, and E.D. twice. I have no difficulty findingshe stabbed each of her children multiple times with the aim of killing them.

The death of R.L. and the significant injuries suffered by theboys evidences the brutality of the attacks and satisfies me that killing was the ultimate intended goal of W.A. on May 12, 2016. [108] The defence has not shown on a balance of probabilities that W.A. at the time was suffering from a mental disorder that renderedher incapable of appreciating the nature and quality of her acts, or of knowing that they were wrong. [109] I find W.A. guilty of the second degree murder of R.L., and the attempted murders of K.D. and E.D.

This matter will be spoken toin assignment court on August 8, 2022 to set a date for sentencing.

Dated at the City of Iqaluit this 22nd day of July 2022 ___________________ Justice Susan Charlesworth Nunavut Court of Justice