R v. Kringuk, 2011 NUCJ 13

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R v. Kringuk, 2011 NUCJ 13 Date: 20110624 Docket: 19-08-08-1 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Joyce Kringuk ________________________________________________________________________ Before: The Honourable Mr. Justice R.G. Kilpatrick Counsel (Crown): M. Bryant and D. Garson Counsel (Accused): A. Mahar Location Heard: Iqaluit, Nunavut Date Heard: March 28-30, 2011 Matters: Ruling on voir dire (admissibility of eleven oral statements) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] Joyce Kringuk is on trial for the murder of her spouse. She has elected to be tried by a judge alone. The Court has conducted a number of voir dires. These voir dires were necessary to determine whether certain pieces of evidence tendered by the Crown could be legally admitted into evidence for trial purposes or be used for the purpose of cross-examination. The Court now rules on the admissibility of the evidence heard in these voir dires. [ 2 ] For ease of reference, these voir dires are identified as follows: Voir Dire #1 - Oral statement attributed to Joyce Kringuk by Corporal S.

Courtorielle on August 8, 2008, at Repulse Bay while Joyce Kringuk is standing on the road to the Kringayark cabin with Theresa Kringayark. The issue is voluntariness of this statement at common law. Voir Dire #2 – Oral statement attributed to Joyce Kringuk by Constable C. Locke on August 8, 2008, at Repulse Bay as Ms. Kringuk entered a marked police vehicle. The issue is voluntariness of this statement at common law. Voir Dire #3 – Oral statement attributed to Joyce Kringuk by Constable C.

Locke on August 8, 2008, at Repulse Bay following her arrest and while being transported to the police detachment in a marked police vehicle. The issue is voluntariness of this statement at common law. Voir Dire #4 – Oral statements attributed to Joyce Kringuk on August 8, 2008, by Jake Roberts while Ms. Kringuk is engaged in a struggle with Constable Locke and Jake Roberts in the cell booking area at the Repulse Bay detachment. The issue is voluntariness of these statements at common law. Voir Dire #5 – Oral statements attributed to Joyce Kringuk on August 8 and 9, 2008 by Greg Buie and Jake Roberts while Ms.

Kringuk is detained in cells at the Repulse Bay detachment following her arrest. The issue is voluntariness of these statements at common law. Voir Dire #6 – Oral statements attributed to Joyce Kringuk by Corporal S. Courtorielle on August 9, 2008, while Joyce Kringuk is in a cell at the Repulse Bay RCMP detachment. The issue is voluntariness of these statements at common law. Voir Dire #7 – Oral statements attributed to Joyce Kringuk by Constable K. Dewulf and in the presence of Constable J. Baines on August 9, 2008, while Joyce Kringuk is in a police cell at the RCMP Repulse Bay detachment.

The issue is voluntariness of these statements at common law. Voir Dire #8 – Oral statement attributed to Joyce Kringuk by Constable Josephee Baines while Ms. Kringuk is in a police plane en route from Repulse Bay to Iqaluit on August 10, 2008. The issue is voluntariness of this statement at common law. Voir Dire #9 – Oral statements attributed to Joyce Kringuk by Mary Rose Kopak while visiting with Mary Rose Kopak at a residence in Repulse Bay on a date preceding the death of Joani Kringayark.

The issue is the common law admissibility of these statements as: I. evidence of propensity relevant to proof of motive and/or animus/intent II. evidence of context about the nature and quality of the domestic relationship between the deceased and the Defendant III. evidence of an admission against interest Voir Dire #10 – Oral statements attributed to Joyce Kringuk by Molly Kaunak while visiting with Molly Kaunak at a residence in Repulse Bay on a date preceding the death of Joani Kringayark. The issue is the common law admissibility of these statements as:

i) evidence of propensity relevant to proof of motive and/or animus/intent ii) evidence of context about the nature and quality of the domestic relationship between the Defendant and the deceased iii) evidence of an admission against interest Voir Dire #11 – Oral statements attributed to Joyce Kringuk by Alice Uttak while visiting with Alice Uttak at a residence in Repulse Bayon a date preceding the death of Joani Kringayark. The issue is the common law admissibility of this evidence as evidence of contextabout the nature and quality of the domestic relationship between the deceased and the Defendant. II.

FINDINGS OF FACT - VOIR DIRES #1 THROUGH #8 (INCLUSIVE) [3] The Court makes the following provisional findings of fact for the purpose of determining the legal issues canvassed in voir diresone through eight. In doing so, the Court follows the guidance of the Supreme Court of Canada found in R v Evans,(SCC), [1993] 3 SCR 653, 85 CCC (3d) 97 1993. [4] At 8:57 p.m. on August 8, 2008, the RCMP Corporal in charge of the Repulse Bay detachment receives a call on his portable radiofrom an unknown female. Corporal S. Courtoreille is told that the caller had heard Joyce Kringuk calling on the CB radio.

Joyce Kringukhad requested immediate assistance at the family cabin, located approximately one mile outside the community of Repulse Bay. Thenature of the problem was not disclosed. The unknown caller did not say when this distress call had been made. [5] Corporal Courtoreille immediately contacts Constable C. Locke for back up. The two RCMP members drive towards theKringayark cabin in a marked police truck operated by the Corporal.

Constable Locke occupies the front passenger seat of the vehicle.Both officers are dressed in the full working uniform of the RCMP. [6] As the police proceed up the rough dirt road towards the Kringayark cabin they observe Joyce Kringuk walking down the roadtowards town. It is 9:01 p.m. Joyce Kringuk is approximately 150 metres from the family cabin. Joyce Kringuk has her infant daughterJulianne (estimated age: 2 years) on her back in an amauti. Ms. Kringuk’s older daughter Madeline (estimated age: 9 years) is walkingbeside her mother on the road.

Both children are crying hysterically. [7] Theresa Kringayark, the sister of the deceased, approaches Joyce Kringuk on an ATV. Theresa Kringayark is headed for theKringayark cabin. She stops beside Ms. Kringuk and gets off the ATV. There is a heated exchange between the two adults. [8] The police vehicle pulls up beside the two adults. The Corporal rolls down the window. At the same time Constable Locke exits thepolice vehicle from the passenger side. Theresa Kringayark is screaming at Joyce Kringuk. Ms. Kringuk is very upset. The Corporal asksthe two adult females what is going on. Ms.

Kringuk then says “I shot her brother”. She repeats this twice (voir dire #1). After hearingthese words, Theresa Kringayark gets back on her ATV and speeds off towards the cabin. The Corporal immediately exits the policetruck. [9] The RCMP officers observe that Joyce Kringuk has what appears to be dried blood on her face and hands. Ms. Kringuk has bruisesunderneath both eyes. There is a distinct smell of alcohol coming from her person. [10] The Corporal directs Constable Locke, who has now joined Corporal Courtoreille outside the police vehicle, to place Joyce Kringukand her two children in the police truck.

The Corporal is uncertain about what happened. Further investigation is needed. Given Ms.Kringuk’s very agitated condition, the police decide to place Ms. Kringuk in the police vehicle for her own protection and the protectionof her children. [11] As Constable Locke moves to help Ms. Kringuk into the police truck, Joyce Kringuk makes a further statement. She blurts out “Ikilled my best friend” (voir dire #2). [12] With Ms. Kringuk and the two children safely in the back of the police truck, the two RCMP officers continue up the road to the

Kringayark cabin. They find that there are already a number of other citizens present at the cabin including Theresa Kringayark. All appear to be very agitated and upset. [ 13 ] The police enter the cabin. They discover the lifeless body of Joani Kringayark lying in the open living room/kitchen in a pool of fresh blood. A large part of the top of the deceased’s head is missing. [ 14 ] A decision is made to place Joyce Kringuk under arrest. The Corporal decides to remain on scene to protect and preserve the evidence at the cabin. [ 15 ] Constable Locke leaves the cabin and opens the back door of the police truck.

Ms. Kringuk is formally placed under arrest for murder. Both Charter rights and police caution are read from a card carried by Constable Locke. When asked if she understands her rights, Ms. Kringuk is unresponsive. She is hysterical. She is screaming and crying. Constable Locke detects an odour of alcohol coming from Ms. Kringuk. [ 16 ] The door to the police truck is shut. Constable Locke returns to the hamlet in the police vehicle bearing Joyce Kringuk and her children. While en route to the detachment, at 9:08 p.m., Ms. Kringuk makes a further unsolicited statement.

She blurts out “Joani accused me of sleeping with my dad and I killed him” (voir dire #3). Constable Locke makes no reply. [ 17 ] Constable Locke stops momentarily to enlist the help of local teachers Gregory Buie and Jake Roberts. [ 18 ] Upon arrival at the detachment there is a struggle. Joyce Kringuk is still crying. So are the children. Ms. Kringuk grabs on to things as she is being led to the cell area. Her fingers have to be pried off doorknobs and a fridge. The teacher Greg Buie assists Constable Locke in moving Ms. Kringuk to the cell area.

With the assistance of the two teachers, the infant is removed from the amauti. Jake Roberts takes the distraught children out of the cell area and away from the struggle in cells. Greg Buie remains with Constable Locke. Jake Roberts leaves the children with another citizen, Taylor Harris, and then returns to the cell area to assist Constable Locke. [ 19 ] There is a struggle to remove Ms. Kringuk’s amauti and shoes. There is a struggle to remove jewellery. Throughout this struggle, Joyce Kringuk is frantic.

She is screaming, yelling and crying. [ 20 ] During the struggle with Constable Locke and the two teachers, Joyce Kringuk makes a number of unsolicited statements. Jake Roberts recalls Ms. Kringuk saying “I killed my boyfriend”, “I shot my boyfriend”, “I killed my best friend” and “What have I done?” (voir dire #4). [ 21 ] At 9:15 p.m. Joyce Kringuk is placed in cells. She curls up in a fetal position of the floor of the cell. She continues to cry and wail. Constable Locke asks Jake Roberts to return to the cabin to assist the Corporal and he does so. Greg Buie and Taylor Harris remain at the detachment.

They take turns guarding Joyce Kringuk. Mr. Buie is told to write down everything said by the prisoner. Between sobs, Greg Buie overhears Ms. Kringuk say from her cell “I wish I was dead!” and “I killed him!” (voir dire #5). [ 22 ] The children are, at some later point, taken to Ms. Kringuk’s parents by Greg Buie. [ 23 ] Once at the cabin, Jake Roberts is asked by the Corporal to return to the detachment and retrieve the police tape needed to secure the crime scene. Jake Roberts returns to the detachment. Constable Locke, Taylor Harris, and Greg Buie are there.

Upon entering the cell area, Jake Roberts overhears Joyce Kringuk in the cell make a number of unsolicited statements. In a voice full of pain and anguish, Ms. Kringuk is heard to say “I shot my best friend!”, “I killed my best friend!”, and “Somebody kill me – what have I done? Oh my God, somebody kill me!” She says this repeatedly (voir dire #5). [ 24 ] Corporal Courtoreille returns to the detachment at 9:37 p.m. on August 8 to make phone calls. At 10:29 p.m. he enters the cell area to check on Ms. Kringuk. He sees a pack of cigarettes sitting on a bench in Ms. Kringuk’s cell. Ms.

Kringuk is not wearing her T-shirt. The Corporal enters the cell area to retrieve the cigarettes and asks Ms. Kringuk to put on her T-Shirt. Ms. Kringuk declines to put on the shirt. She indicates that the shirt is “full of blood”. In an unsolicited statement, Ms. Kringuk tells Corporal Courtoreille “just shoot me in the back of the head – get it over with!” (voir dire #6).

[ 25 ] After leaving the cell with the cigarettes and the T-shirt, Corporal Courtoreille makes immediate arrangements to obtain a clean shirt for Ms. Kringuk. Another shirt is brought to the detachment by the nurse in charge and provided to Ms. Kringuk at 10:43 p.m. [ 26 ] At 11:40 p.m. on August 8, Ms. Kringuk tells the guard that she wishes to speak to a lawyer. The Corporal is advised. At 11:53 p.m. Ms. Kringuk is taken to the phone room by Corporal Courtoreille to call a lawyer. No lawyer can be reached. Phone messages are left. Ms.

Kringuk returns to her cell at 11:59 p.m. [ 27 ] At 21 minutes past midnight, a lawyer from Legal Aid calls the detachment and speaks to Corporal Courtoreille. The Corporal indicates that he would call back as soon as Joyce Kringuk can be brought to a phone from her cell. When the Corporal attends Ms. Kringuk’s cell she is sleeping. The Corporal wakes Ms. Kringuk and tells her that a lawyer has called and is available to speak to her. Ms. Kringuk tells the Corporal that she would speak to the lawyer in the morning. Ms. Kringuk then goes back to sleep. [ 28 ] Constable Locke returns to Ms.

Kringuk’s cell at 3:30 a.m. on August 9. The Constable again advises Ms. Kringuk that she is under arrest for the murder of Joani Kringayark. She again reads the Charter rights and police caution to Ms. Kringuk. Ms. Kringuk is asked if she understands. This time, Joyce Kringuk is responsive. She says that she understands. Ms. Kringuk makes no request to speak to counsel at this time. She continues to cry. She eventually goes back to sleep. [ 29 ] On August 9 at approximately 7:00 a.m. the Corporal returns to the cell area. Ms. Kringuk is awake.

She is taken to a private interview room where she is given an opportunity to speak to counsel. She does so for approximately two minutes. [ 30 ] On August 9, 2008, at 9:28 a.m. Constable Kristen Dewulf and Constable Josephee Baines attend Ms. Kringuk’s cell. The Constables have been tasked to take swabs from Ms. Kringuk’s hands to detect gun powder residue and to seize clothing that might afford evidence of an offence. Joyce Kringuk is taken to a private interview room within the detachment. The process and the purpose of taking the swabs is explained.

Joyce Kringuk starts to cry. [ 31 ] While Constable Dewulf is swabbing Ms. Kringuk’s hands in the presence of Constable Baines, Joyce Kringuk makes an unsolicited statement. She says “It was an accident”. The Constables make no reply. Minutes later, Ms. Kringuk says “You should take GSR [gunshot residue] samples from my chest because I was wearing a tank top” (voir dire #7). Again, the Constables make no reply. Ms. Kringuk then asks Constable Dewulf to cut some “matter” out of her hair. Constable Dewulf complies with this request. The “matter” cut out of Ms.

Kringuk’s hair is seized by Constable Dewulf and is retained as a police exhibit. [ 32 ] Joyce Kringuk is noted to have a number of injuries. Swelling is observed to both eyes. There is a bruise on Ms. Kringuk’s left cheek. The left eye is almost swollen shut. There is another bruise noted on Ms. Kringuk’s elbow. [ 33 ] Constable Dewulf seizes the jeans and socks worn by Ms. Kringuk. This clothing has some red staining. Constable Baines steps out of the room while Ms. Kringuk changes into clean sweatpants and socks provided by Constable Dewulf. Joyce Kringuk is then returned to her cell.

The entire process takes approximately 20 minutes. [ 34 ] After being returned to her cell, Ms. Kringuk indicates a desire to speak to a lawyer again. This is facilitated by Constable Baines some time later on this same morning. Ms. Kringuk has an opportunity to speak privately to a lawyer. [ 35 ] Ms. Kringuk asks for and receives cigarettes. She requests and is given food. She asks for water and coffee on a number of occasions. These too are given when requested. Ms. Kringuk asks to see her children.

This request is denied by Constable Baines who explains that the older child is a potential Crown witness to the events that happened in the cabin. [ 36 ] On August 10, 2008, the decision is made to transport Ms. Kringuk to Iqaluit. Constable Baines travels with Joyce Kringuk to Iqaluit as police escort. While on the police plane, Joyce Kringuk begins to cry. She makes an unsolicited statement. She blurts out “I can’t believe that I did it!”

[ 37 ] Constable Baines then repeats what he has heard. Question – Constable Baines: “You can’t believe that you did it?” Joyce Kringuk then responds “It is not like me.” Constable Barnes then says to Ms. Kringuk “Maybe something really set you off, something got you really mad?” Joyce Kringuk nodded her head in the affirmative. (voir dire #8) [ 38 ] All Crown witnesses have confirmed in their evidence that at no time, throughout their dealings with Joyce Kringuk, did they make any promises, inducements or threats to Ms. Kringuk to encourage her to speak.

They also confirmed that at no time did they see or hear anyone else do so. A. The legal test for the admissibility of statements made to persons in authority [ 39 ] In the case of R v VanEindhoven, 2006 NUCJ 12 , 70 WCB (2d) 982 [VanEindhoven] , this Court reviewed the legal and philosophical basis for the common law test on the admissibility of statements made to persons in authority.

For the purpose of these voir dires, I apply the statement of the law as set out in VanEindhoven with some minor variations as set out below. [ 40 ] The common law has long required the Crown to prove beyond a reasonable doubt that any statements made by a suspect to investigating authorities are made freely and voluntarily. No statement made by an accused is admissible for any purpose unless the Crown meets this formidable burden of proof.

The Supreme Court of Canada, in the case of R v Oickle, [2000] 2 SCR 3 , 2000 SCC 38 , confirmed that the primary purpose of this requirement is to ensure that any statement gathered by the forces of the state, directly from an accused, remains reliable and trustworthy. [ 41 ] Our collective human experience tells us that where there is a choice, people do not ordinarily volunteer information that is harmful to themselves. When they freely choose to do so, it is usually because the information is true, or they believe it to be true.

The common law adopts this behavioural model. [ 42 ] The common law focus on voluntariness ensures that a statement given to the authorities is made in circumstances where reliability is enhanced. Reliability depends upon the speaker being free of corrupting influences or pressures that might affect either the decision to speak or the quality of information provided by the speaker. [ 43 ] To achieve reliability, the common law first gives some protection to the citizen’s right to remain silent. It is this right which gives life to the choice upon which reliability depends.

The common law then demands that an environment free of corrupting or adverse influences be available for the citizen to make the decision to speak. This environment is regulated through the application of the voluntariness requirement.

It is the broad and flexible application of this requirement that ensures optimum conditions are present if a statement against interest is made. [ 44 ] The citizen’s freedom of choice is protected by ensuring that the decision to speak to the authorities is not influenced by the forces of the state through threats or promises that instill a hope of advantage, or a fear of prejudice. A prisoner will be tempted to provide information if there is some perceived advantage in doing so.

Information desired by the authorities, whether accurate or not, may be given to secure the offered benefit or to avoid a threatened consequence. Truth may be lost in the resulting bargain. Reliability under these circumstances cannot be assured. [ 45 ] This freedom of choice is protected by ensuring that a citizen’s treatment, at the hands of the authorities, is not so punitive that a prisoner is induced to speak and give false information to avoid further ill treatment.

The common law’s long experience confirms that the reliability of information provided by prisoners is undermined by considerations related to securing more favourable treatment. Under oppressive conditions, the prisoner’s freedom of choice becomes illusory. In the hope of improving his or her lot, the prisoner is induced to give his or her captors what they are seeking. The common law has learned over many years and many cases, that a statement made under these circumstances is inherently unreliable and more likely to be false than true.

[ 46 ] This freedom of choice is protected by insisting that the authorities avoid the use of strategies designed to psychologically overwhelm the citizen. A false portrayal of invincibility or infallibility may lead a citizen to conclude that it is utterly futile to remain silent, or to deny the undeniable. A reference to false or nonexistent evidence, to the infallibility of police forensic sciences, or the use of tricks, may all induce a false confession. [ 47 ] A citizen who is deliberately exposed to this treatment has been primed to accept the inevitable.

When confronted by what purports to be overwhelming evidence of guilt and the inevitability of conviction, self-doubt sets in. Despair and resignation soon follow. The citizen’s decision to speak is likely to be influenced by this. The prisoner may create a false reality to match what the authorities expect. History confirms that truth is readily sacrificed upon an altar of greater expediency.

In the experience of the common law, the false confession has proven to be one of the greatest single contributors to wrongful convictions. [ 48 ] Protection of this freedom of choice is achieved by ensuring that a citizen has sufficient cognitive capacity to understand that a choice is in fact involved. The requirement that the citizen possess an 'operating mind' ensures that subjective psychological, psychiatric or physiological conditions do not deprive the citizen of any ability to make a choice to speak.

Where there is no capacity to make a choice, the behavioural model underlying the common law test for reliability cannot be applied. The result can only be uncertainty and unreliability. [ 49 ] The many facets of the common law voluntariness requirement, the traditional Ibrahim rule (Ibrahim v The King, [1914] AC 599 , [1914] UKPC 1 ), the doctrine of oppression, and the requirement of an operating mind, all promote the reliability of statements made to authorities through preservation of this choice to speak or not. A statement against interest must be the product of a conscious decision to speak.

It must result from a choice that is free from any corrupting influences or pressures. It is only in this way, and under these circumstances, that the common law can be assured that statements against interest reflect accuracy and truth, not falsehood or misinformation. B. Legal analysis – application of the law to the facts - voluntariness [ 50 ] There is no real factual dispute on the evidence about what was said by Joyce Kringuk or when she said it. [ 51 ] There is a common theme running through many of Joyce Kringuk’s statements to the RCMP. Most of the statements under consideration are unsolicited.

Many of these statements are spontaneous comments made by Ms. Kringuk about what had happened at the cabin. Some of these comments were given to RCMP officers. Some of these statements were given to civilians assisting the RCMP. Some comments were made to the world at large. This includes the utterances made by Ms. Kringuk while alone in her cell. These statements were not directed to anyone in particular. [ 52 ] In the immediate aftermath of her arrest, Joyce Kringuk struggled with many conflicting emotions. Corporal Courtoreille first detected anger when he saw Ms.

Kringuk having a heated exchange with the sister of the deceased on the road. Constable Locke, Constable Baines, Greg Buie, and Jake Roberts moments later sensed a host of different emotions. There was regret. There was anxiety. There was profound sadness. There was a feeling of hopelessness and a desire to take her own life. [ 53 ] Joyce Kringuk was emotionally overwhelmed by the circumstances of the events that had overtaken her. This was evident from her behaviour with others.

This was also evident from the words used, and the emotions that accompanied these words – from what she said and how she said it. [ 54 ] Joyce Kringuk needed to release these emotions. This is why she said what she said. The emotions behind the events influenced what was being said, when it was said, and how it was said. These heavy emotions clothe the admissions made by Ms. Kringuk with a measure of circumstantial reliability. [ 55 ] Joyce Kringuk may have been drinking.

She may have been under the influence of some intoxicants when arrested, but the evidence falls short of creating any reasonable doubt about whether she had the rational capacity to decide whether or not to speak. [ 56 ] Joyce Kringuk’s words may have been driven by emotion, but they cannot be construed as illogical ramblings. The words were purposive. Even after Ms. Kringuk was cautioned by the police, even after she had consulted with a lawyer, even after she had slept and cleared her mind of the presence of intoxicants, Joyce Kringuk continued to spontaneously speak about the events that led to her arrest.

She needed to express her feelings in order to calm her anxieties and vulnerabilities. Joyce Kringuk felt her world slipping away. [57] There is nothing to suggest that Ms. Kringuk did not have an operating mind within the meaning of the common law jurisprudencewhen she made these various statements. The Court does not have a reasonable doubt on this issue. The spontaneity of the statements,together with the emotions behind the words, supports the view that these were voluntary statements made freely by the declarant. [58] There is nothing to suggest that Ms.

Kringuk’s decision to speak was the result of promises, inducements or threats held out to herby the police or their agents. On the evidence, there was nothing said or done by the police or others that affected or influenced Ms.Kringuk’s decision to speak. [59] There is nothing to suggest that Ms. Kringuk may have been induced to speak by oppressive conditions related to her detention. Theonly evidence before the Court suggests that Ms. Kringuk was treated with respect by her guards. She was given an opportunity to sleep.She was given food and drink as and when requested.

She was even afforded cigarette breaks from time to time. There is no evidencebefore the Court to raise a reasonable doubt on this issue. [60] There is nothing to suggest that Joyce Kringuk was induced to make these various statements by police tricks. There is no evidenceto suggest that any form of strategy was employed by the investigating authorities in an effort to overwhelm the will of the Defendant orotherwise break down her resolve to remain silent. [61] Nor is there anything to suggest that the initial struggle to place Ms. Kringuk in cells had any bearing on Ms. Kringuk’s decision tospeak.

The reason for detention would have been obvious to Ms. Kringuk. The need to remove Ms. Kringuk’s loose clothing andjewellery was both necessary and justifiable given her desperate state of mind. The utterances made by the Defendant during the strugglehad nothing to do with the struggle. They had everything to do with what had happened earlier at the Kringayark cabin. They hadeverything to do with how these earlier events made Joyce Kringuk feel about herself and her future. [62] There is nothing to suggest that the police decision to refuse Ms.

Kringuk access to her children had any tangible bearing on herdecision to speak. The authority’s refusal to deny access to the children was once again both understandable and justifiable under thecircumstances presented here. [63] Finally, there is nothing to suggest that the absence of a police caution had any bearing on Joyce Kringuk’s first admission toCorporal Courtoreille made while standing on the road with Theresa Kringayark. [64] The absence of a caution does not determine whether Ms. Kringuk made this statement voluntarily.

The presence or absence of acaution is just one of many circumstances to be considered by the Court on the larger issue of whether a statement is made freely andvoluntarily (See Boudreau v The King, (SCC), [1949] SCR 262, 94 CCC 1). [65] Where a caution is given to a citizen before he or she is called upon to speak, the mind is more likely to be focused. The cautiontells the citizen that there is a choice to be made. It tells the citizen that there are serious legal implications involved in speaking out.

Itwarns the speaker not to be influenced, in making their decision, by any threats or promises made by a person in authority. An admissionagainst interest made after caution, under such solemn circumstances, is more likely to be reliable and trustworthy. [66] Even in the absence of a caution, however, the circumstances under which a statement is made may also suggest that the statementis both voluntary and reliable. Such is the case here. [67] At the point Ms. Kringuk first responded to the Corporal’s question, "what is going on?" Ms. Kringuk was not in custody. TheCorporal had no reason to suspect Ms.

Kringuk of involvement in the commission of any offence. There was nothing in the questionitself to suggest that it was directed at Ms. Kringuk as opposed to Theresa Kringayark. There was nothing in the question that wasmenacing. There was nothing in the question that suggested to Ms. Kringuk that she had done anything wrong, or that she was a suspectin a criminal investigation. The question was not even directed at events at the cabin. Joyce Kringuk was not compelled to answer thisquestion, or to make the admission that she did.

There is no rational basis to entertain a doubt that the answer given was made freely andvoluntarily.

C. Conclusion – Voir Dires #1 through #8 (inclusive) [ 68 ] The Court is satisfied on all the evidence that the Crown has proved beyond a reasonable doubt that the various utterances made by Ms. Kringuk, as outlined in these voir dires, were made by her freely and voluntarily within the meaning of the common law jurisprudence. The various statements made by the Defendant are therefore admissible in the trial proper for the purposes advanced by the Crown. III. FINDINGS OF FACT – VOIR DIRES #9 THOUGH #11 [ 69 ] Mary Rose Kopak, age 58 years, has known Joyce Kringuk since Ms. Kringuk was a teenager.

They are acquaintances. On occasion, Joyce Kringuk would visit with Ms. Kopak. They would socialize together. Ms. Kopak says that on one occasion before Joani Kringayark’s death, Ms. Kringuk visited with Mary Rose Kopak and brought her youngest child with her. Ms. Kopak recalls that this infant was still being breast fed. This infant would have been approximately two years of age at the point Joani Kringayark died. [ 70 ] Ms. Kringuk talked about her relationship with the deceased during this visit. She told Ms. Kopak that she was tired of her relationship with Joani Kringayark.

Joyce Kringuk volunteered that she wanted to shoot the deceased. Mary Kopak was disturbed by this statement (voir dire #9). She cautioned Ms. Kringuk never to do such a thing. [ 71 ] Molly Kaunak is a lifelong resident of Repulse Bay. She knows Joyce Kringuk as a good friend. From time to time Joyce Kringuk would separate from her common law husband Joani Kringayark. It was usually during these periods of separation that Joyce Kringuk and Ms. Kaunak would socialize together. [ 72 ] It was during these visits that Joyce Kringuk would talk about her difficult relationship with Joani Kringayark. Ms. Kringuk told Ms.

Kaunak that she had wanted to leave the relationship for some time, at least since the youngest child was born. Ms. Kringuk indicated that Joani Kringayark was aware of her wish to leave the relationship. He did not want her to leave. He continued to give Ms. Kringuk a very hard time about ending the relationship. Ms. Kringuk told Molly Kaunak that Kringayark was using the children to keep her in the relationship against her will. [ 73 ] Ms. Kringuk indicated that Joani Kringayark was being emotionally abusive towards her. He would frequently point out to Ms.

Kringuk other women in the community with whom he wanted to have sex. This difficult relationship was hard on Joyce Kringuk emotionally and mentally. Ms. Kringuk disclosed to Ms. Kaunak that she had toyed with the idea of taking her own life. Ms Kringuk said that she had sought help from the health center for suicidal thoughts. [ 74 ] In June of 2008, during one of these visits, Ms. Kringuk disclosed to Ms. Kaunak that at some point between December 2007 and January 2008 she had pointed a firearm at the deceased while he slept. This disclosure shocked Ms. Kaunak. It made her very uncomfortable. Ms.

Kaunak cautioned Ms. Kringuk about doing this (voir dire #10). [ 75 ] Alice Uttak, age 31 years, is a very close personal friend of Joyce Kringuk. They have been friends since childhood and have grown up together in Repulse Bay. They would often visit each other and socialize together. This would happen almost daily. [ 76 ] On many occasions Ms. Kringuk would talk about her turbulent relationship with Joani Kringayark. In the two years preceding Mr. Kringayark’s death, Ms. Kringuk had talked constantly about her desire to leave the relationship. Ms.

Kringuk had talked about the verbal and emotional abuse that she received from her spouse. Examples were given. Mr. Kringayark resented Ms. Kringuk’s great love for her father. Mr. Kringayark became jealous and repeatedly accused Ms. Kringuk of having an intimate sexual relationship with her father. He even accused her of having intimate sexual relationships with close female friends who tried to give her much needed emotional support. [ 77 ] Ms. Kringuk was deeply hurt by these accusations. Ms. Uttak tried to comfort Ms. Kringuk. They would cry together from time to time. Ms. Kringuk disclosed to Ms.

Uttak that she had thought of suicide as a way of escaping both the pain and the relationship. [ 78 ] Alice Uttak confirms that at no time during these many discussions with Joyce Kringuk, did Ms. Kringuk ever suggest that she

entertained any thoughts of shooting Joani Kringayark. The only person who she thought of harming was herself (voir dire #11). A. The legal test for the admissibility of propensity evidence [ 79 ] In the case of VanEindhoven , this Court outlined at some length the juridical basis upon which propensity evidence may be admissible. For the purposes of this voir dire, the Court adopts what it said in VanEindhoven (at para 105 -111 ): Detailed evidence of other acts of misconduct by a citizen accused of a crime is generally not admissible in a criminal trial.

This type of evidence, called propensity, or similar fact evidence, has long been recognized to have great potential to prejudice a citizen’s right to a fair trial. It has great potential to distract and confuse the trier of fact with a multiplicity of issues unrelated to the matter at hand. It has great potential to consume significant amounts of court time on peripheral issues. Propensity reasoning involves the inference that a citizen who has a propensity or disposition to do a particular crime must have done the actual crime that is alleged.

If used improperly, this type of reasoning can seriously erode any presumption of innocence. If used indiscriminately, it can poison the mind of a trier of fact and make adjudicative objectivity much more difficult to achieve. Two forms of prejudice are caused by the improper use of propensity evidence. Reasoning prejudice results where a trier of fact places undue weight upon evidence related to earlier misconduct. Moral prejudice results where a judge or jury is tempted to infer guilt from knowledge of the bad character of an accused citizen.

The experience of the law has demonstrated that such inferences are all too easily made. Such inferences can be made in the absence of any real evidence linking an accused to the commission of a crime. This is particularly so where the similar fact crime under consideration is highly reprehensible or morally abhorrent. A wrongful conviction may result. The defense is quite properly concerned that the improper use of such similar fact evidence could potentially undermine the presumption of innocence that is fundamental to a right to a fair trial.

While clearly recognizing these dangers, the common law has also acknowledged that there may be exceptions. Evidence of previous misconduct may become sufficiently relevant and cogent in relation to a specific trial issue to outweigh any potential for misuse. Propensity evidence thus becomes exceptionally admissible, but not for the purpose of demonstrating that an accused is simply a person of bad character or that he or she has a general disposition or propensity to commit crime. The common law does permit the use of propensity reasoning where its use can be logically justified.

It is only the improper use of propensity reasoning that is prohibited. In this voir dire, the Crown has the burden of establishing, on the balance of probabilities, that the tendered propensity evidence is relevant to a specific issue before the Court and that the probative value of this evidence exceeds its anticipated prejudicial effect. It is only in this way, and only under these limited circumstances, that the admission of propensity evidence can be justified. The probative value of the propensity evidence tendered by the Crown in this case cannot be assessed in a factual vacuum.

The logical value of this type of evidence lies in its ability to help with the determination of a live issue that must ultimately be decided by the trier of fact. The legal issues in this trial turn on the factual allegations found in the indictment and on any defenses reasonably anticipated to arise on the admissible evidence that has been heard to date. B. Legal Analysis – Application of the law to the facts – propensity evidence [ 80 ] The Crown has charged Ms. Kringuk with the murder of her common law spouse.

Proof of the Defendant’s intent will be a central issue in this trial. [ 81 ] Homicides typically occur in circumstances of secrecy where there are no witnesses. This is particularly true of homicides committed within domestic relationships. The deceased cannot speak to us from the grave. Physical evidence may tell us what happened, but not why or how it happened. [ 82 ] Intent must often be inferred from a web of circumstantial evidence. Proof that a Defendant harbours an animus or “hostile intent”

against a particular person when that person is killed may be logically inferred from things said or done by the Defendant at a time proximate to the killing. Such proof may in turn be used to infer that they actually intended to kill when death was inflicted. Proof that a Defendant has a pre-existing animus towards a deceased may also be used to logically rebut any suggestion that the happening of an event was unforeseen or accidental, as opposed to an intentional act in furtherance of a pre-existing design or objective.

There are many common law authorities supporting the use of propensity evidence to prove both motive and intent. [ 83 ] It is in the context of Joyce Kringuk’s failed domestic relationship that the propensity evidence tendered by the Crown becomes potentially significant. The Crown theory suggests that Ms. Kringuk was a desperate woman who may have resorted to desperate means in order to escape her tormenter.

The tendered Crown evidence suggests that in the two years following the birth of the second child, Joyce Kringuk not only contemplated taking her own life, but also considered taking the life of the deceased. The Crown theory suggests that Joyce Kringuk even considered the means for doing so. [ 84 ] The tendered propensity evidence suggests that this unhappy woman referenced shooting the deceased in two different conversations on two separate occasions with different friends before the death of Joani Kringayark occurred. On one occasion, approximately eight or nine months before the shooting death, Ms.

Kringuk admitted that she had even pointed a firearm at the deceased while he slept. [ 85 ] While the precise timing of the statement of Joyce Kringuk to Mary Rose Kopak about wanting to shoot her husband is not clear on the evidence, this statement was made during the difficult two year period after the birth of the second child. This was the period during which Ms. Kringuk struggled with thoughts on how best to escape her relationship with Mr. Kringayark.

For the limited purpose of this voir dire, the Court is satisfied that there is sufficient logical nexus and proximity with the later shooting death of Joani Kringayark to allow the trier of fact to consider the earlier statement of Ms. Kringuk in the trial proper. [ 86 ] There is no suggestion on the evidence of any collusion between Mary Rose Kopak and Molly Kaunak. There is nothing on the evidence, or in the witnesses’ demeanour, to suggest that they have any reason to be partial to the Crown.

To the contrary, both Crown witnesses are good friends or acquaintances of the Defendant. [ 87 ] One of the utterances made to the investigating authorities by Ms. Kringuk (voir dire #7) suggested that the killing of Joani Kringayark was accidental. The tendered propensity evidence in voir dires 9 and 10 may be considered by the trier of fact to determine whether the discharge of the firearm in this case was an accident;

an act that was neither intended or foreseen by the Defendant, or whether this was a deliberate act of murder. [ 88 ] The Court is satisfied that the proffered propensity evidence set out in voir dires 9 and 10 is relevant to and probative of a live trial issue - proof of intent.

The Court is also satisfied on the evidence that the probative value of this evidence on the issue of intent outweighs any potential prejudice arising from its use. [ 89 ] In some instances, where the issue upon which the propensity evidence is directed towards proving is a minor or secondary one, the evidence may be excluded even though it has some probative value. This is not such a case.

The issue of whether the fatal wound was inflicted deliberately by the Defendant in anger, or whether it was done accidentally, is sufficiently important in this case to not override consideration of propensity evidence by the trier of fact. C. The Legal test for the admissibility of context evidence [ 90 ] This Court can do no better than adopt what it said in VanEindhoven with respect to the admissibility of this type of evidence (at paras 132-139): Violence within an intimate relationship does not occur in a vacuum. It is highly contextual.

The root causes of this violence are often deeply imbedded in the complex dynamics of the relationship itself. The past several decades have witnessed a growing awareness of the unique behavioural dynamics associated with domestic violence. This has resulted in a significant shift in legal perspective. There is growing recognition that context evidence with respect to the characteristics of a particular intimate relationship may be useful to understand how and why domestic violence occurs.

The Alberta Court of Appeal, in R. v. G. (L.W.), 1996 ABCA 261 , [1996] A.J. No. 653, 49 C.R. (4th) 178 (AB. C.A.), had thisto say about the use of contextual evidence to help decide issues related to violence arising within an intimate relationship: "[15] ... There is no doubt that the past decade has witnessed a widening acceptance of evidence that was once questioned as mere proofof a criminal disposition and a propensity to commit offences. Today its use as 'background of the circumstances in which the assaultoccurred' or 'narrative' material gains more and more appellate approval.

This is certainly so in domestic violence prosecutions, as well assexual assault." The Alberta Court of Appeal suggests that there is now an "expanding trial habitat" with respect to patterns of intimidation and violencein intimate relationships, and cites a number of authorities in support of this proposition. Context evidence provides much qualitative information about an intimate relationship that may not be the subject of particulardiscreditable acts. The 'discreditable act' had been the historical focus of the common law.

Contemporary context evidence may includeinformation related to the parties' attitudes towards the relationship and their partner. It may include history related to prior separations orattempts to leave a relationship. It may include information about other forms of dysfunctional behaviour within a relationship that fallsshort of being discrete 'discreditable acts' at common law.

Evidence related to controlling behaviours, a party's fear or apprehension andthe reasons for this, jealousies, and patterns of substance abuse, may all assist a trier of fact in understanding why spouses react the waythey do to stressful events or situations. Much of this evidence of context, however, can and often does lead to an inference of bad character. Except for the narrow exceptionprovided by propensity evidence, it has never been open to the Crown to lead evidence of the bad character of an accused, unless or untilthe defense places the character of the accused at issue.

Evidence relating to bad character or negative personality traits, paraded before atrier of fact as context evidence, can give rise to the same moral and reasoning prejudice that often accompanies propensity reasoning. This Court does not understand the G. (L.W.) decision to say that evidence of misconduct within a relationship or general bad characteris admissible as 'context' or narrative in its own right, and in circumstances where propensity evidence would not otherwise be allowed.Such an

interpretation would undermine the strict limitations put on the use of this type of evidence by the Supreme Court of Canada andwould court the very dangers that the common law has long guarded against. While context evidence is thus much broader than the type of evidence traditionally assumed by similar fact evidence at common law, Iconclude that it must still pass through the evidential door that is opened for propensity evidence. It must still relate to a particular issueto be decided by the trier of fact. The probative value of this evidence must still outweigh any prejudice arising from its use.

If the doorremains closed to propensity evidence, context evidence cannot enter. If the door swings wide to allow the admission of propensityevidence, then context evidence, its larger cousin, will likely follow. D. Legal Analysis - Application of the law to the facts – context evidence [91] There is no dispute about what Ms. Kringuk has told others about the quality of her relationship with Mr. Kringayark. [92] In this case, the proffered context evidence suggests that the Defendant felt trapped in a turbulent and unhappy relationship with thedeceased. The Defendant was being emotionally abused.

She wanted to leave the relationship, but could not do so. The deceased wasusing the children to hold her in the relationship. The home had become a place of unhappiness and torment. The relationship hadbecome Ms. Kringuk’s prison. [93] This unhappy state of affairs had continued for a considerable time. The evidence suggests that Ms. Kringuk’s desire to escape herrelationship with the deceased extended back in time to the birth of their second child. This child was born approximately two yearsbefore the death of Joani Kringayark. [94] The emotional toll caused by abuse within this relationship had been telling.

Joyce Kringuk even contemplated suicide as a meansof escape. This underscored the depth of her despair and the strength of her desire to escape.

[ 95 ] The Crown argues that the elimination of Mr. Kringayark would have been of considerable advantage to the Defendant. Joani Kringayark’s death would allow Ms. Kringuk to escape her relationship. Death would immediately end any possibility of Mr. Kringayark using the children as a means of keeping Ms. Kringuk in a relationship that had lost all meaning. The death of Ms. Kringuk’s tormentor could also be expected to assuage feelings of anger, brooding resentment and bitterness for a man who had alleged that Ms.

Kringuk was sexually involved with her father and close female friends. [ 96 ] The evidence of context outlined in voir dires 9, 10, and 11 is advanced by the Crown because it suggests that Ms. Kringuk may have had a motive to take the life of her spouse. The Crown argues that the shooting death of Joani Kringayark was the desperate, intentional act of a desperate woman. [ 97 ] Evidence that there was a motive to do

an act enhances the likelihood that the act was done to secure the advantage or benefit underlying the motive. Proof that there exists a motive to do

an act may give life, vitality and strength to an inference that

an act was intended. From prior motive, the trier of fact may infer subsequent behaviour to be both deliberate and purposive. [ 98 ] This Court is satisfied that the proffered evidence of context in voir dires 9, 10 and 11 is relevant to a live trial issue, namely proof of motive. [ 99 ] The Court is satisfied that a trier of fact’s ability to distil fact from fiction and arrive at truth would be severely handicapped without a qualitative understanding of this domestic relationship and the parties place within it. There is no real shock value associated with the context evidence.

Much of this context evidence engenders sympathy for Ms. Kringuk and her place in this relationship. It is the deceased who is painted in a bad light. With appropriate cautions, the trier of fact can be expected to use this type of evidence for those limited purposes approved by the law. [ 100 ] This Court is satisfied that the probative value of the context evidence outweighs any potential prejudice arising from its use. The evidence of context contained in voir dires 9, 10 and 11 is therefore admissible for trial purposes. E.

Admissions against interest [ 101 ] The Crown in this case urges the Court to find that Joyce Kringuk’s statements to Mary Rose Kopak and Molly Kaunak are admissible in evidence against the declarant as admissions against interest. The statements in question are: 1. a statement made to Mary Rose Kopak that the declarant wanted to shoot her common law spouse Joani Kringayark; 2. a statement made to Molly Kaunak that the declarant had thought of shooting her common law spouse Joani Kringayark and that on one occasion between December 2007 and January 2008 she had actually pointed a firearm at Mr.

Kringayark while he slept. [ 102 ] The statements against interest do not directly relate to the events surrounding the alleged murder of August 8, 2008. They relate to things said or done by the Defendant some months before. They relate to either actual or threatened misconduct by the Defendant towards her spouse on other occasions. The admissibility of admissions against interest related to these “other” events are properly determined under the rule related to propensity evidence. The relevance and probative value of these “other events” must first be decided.

Probative value must be weighed against prejudicial effect. To do otherwise would give the Crown far too much latitude to tender evidence of statements made by an accused in relation to events unrelated to the matter being litigated. Significant prejudice could result. The fairness of the trial might be compromised.

The prospect of the trial becoming derailed by a multiplicity of collateral issues would be elevated without any assurance that these admissions against interest were in some way both relevant and probative of an issue raised in the trial. [ 103 ] For the reasons advanced earlier, the Court has determined in this case that these earlier statements by the Defendant are relevant to and probative of a live trial issue, that is, the issues of motive and intent. These statements by the Defendant have been declared admissible as an exception to the rule against propensity evidence.

These statements may also be considered as evidence of context; they provide graphic contextual detail of the Defendant’s difficult domestic relationship with the deceased. This context evidence is evidence relevant to proof of motive.

[ 104 ] It is unnecessary to determine the admissibility of these statements under a separate head as admissions against interest. The Court declines to do so. F.

Conclusion – Voir Dires #9 through 11 (inclusive) [ 105 ] The Court is satisfied on a balance of probabilities that the evidence contained in voir dire # 9 of Mary Rose Kaunak should be admitted on the basis that it is: a. evidence of propensity relevant to proof of both motive and animus or intent b. evidence of context about the nature and quality of the domestic relationship between the deceased and the Defendant [ 106 ] The Court is satisfied on a balance of probabilities that the evidence contained in voir dire #10 of Molly Kaunak should be admitted on the basis that it is: a. evidence of propensity relevant to proof of both motive and animus or intent b. evidence of context about the nature and quality of the domestic relationship between the deceased and the Defendant [ 107 ] The Court is satisfied on a balance of probabilities that the evidence contained in voir dire # 11 of Alice Uttak should be admitted on the basis that it is: a. evidence of context about the nature and quality of the domestic relationship between the deceased and the Defendant Dated at the City of Iqaluit this 24th day of June, 2011 ___________________ Justice R.G.

Kilpatrick Nunavut Court of Justice Supplementary Reasons for Judgment Note: These paragraphs are paragraphs 89A and following and fit between paragraphs 89 and 90 of the original judgment [1] In these voir dires, the Court must consider not only the cogency of the propensity evidence tendered in relation to the inferences sought to be drawn by the Crown, but must also consider the relative strength of the proof of the acts or utterances making up the allegations of propensity. [2] The propensity evidence tendered by the Crown is related to an important, if not central issue, to the trial, namely the issue of intent.

In addition to evidence of opportunity, the propensity evidence is part of a web of circumstantial evidence relied on by the Crown to

establish a pre-existing animus on the part of the accused towards the deceased. [3] The Court has not heard any direct evidence on the issue of intent. It is unknown what, if any, other evidence is available to the Crown to establish the specific intent necessary to be proved on a crime of second degree murder. [4] The Crown alleges as part of its case that the deceased died from injuries sustained as a result of being shot.

There is a nexus between the type of harm and the means used to inflict it referenced in the alleged threats and/or acts of the accused and the subsequent shooting death of the deceased. [5] The allegations associated with the previous threats to do the deceased harm with a firearm originate from good friends of the accused.

The witnesses who heard these alleged threats are available for cross-examination and, to the extent that memory permits, can give evidence related to the accused’s demeanor, voice inflection and body language, when the alleged utterances were made. [6] On the strength of the limited evidence tendered in these two voir dires, the Court concludes that proof of the propensity evidence is of sufficient weight and probative value to be considered by a trier of fact on the issues of motive and intent. [7] The shock value associated with the tendered propensity evidence is low.

The tendered propensity evidence is not such that it would create sentiments of revulsion or condemnation that would interfere with a reasoned and dispassionate analysis of the evidence by a seasoned trial judge. The propensity evidence is not so poisonous or inflammatory that would likely give rise to a prohibited chain of reasoning - an inference of guilty intent based not on proof but on prejudice arising from impressions of an accused’s flawed character or personality.

If a trial judge can be trusted to determine issues of admissibility on a voir dire without being tainted or prejudiced by evidence deemed inadmissible, a trial judge is equally capable of receiving and applying admissible evidence on the trial proper in accordance with common law restrictions applicable to such evidence’s use. [8] The Court has anxiously weighed the probative value of the tendered propensity evidence on the live trial issue of intent against the potential prejudicial effect that receiving this evidence would have on the trier of fact.

Once again, the trial is before an experienced trial judge who is acutely aware of the evidential limits on the proper use of this type of evidence, should it be admitted. A more rigorous approach to tendered propensity evidence may well be warranted where the trier of fact is a lay jury lacking the legal training, experience and analytical sophistication of a judge. [9] On balance, the Court is satisfied that in the specific context of this trial, the probative value of the tendered propensity evidence exceeds the potential for moral or reasoning prejudice.

The tendered propensity evidence should therefore be admitted for the limited purposes allowed by the common law. Dated at the City of Iqaluit this 12th day of October, 2012 ___________________ Justice R.G. Kilpatrick Nunavut Court of Justice