R. v. Kilabuk, 2011 NUCJ 01

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. Kilabuk, 2011 NUCJ 01 Date of Judgment: 2011-01-21 Docket Number: 2010-03-27 Registry: Iqaluit Plaintiff: Her Majesty the Queen -and- Defendant: Jayko Kilabuk ________________________________________________________________________ Before: The Honourable Mr. Justice R. Kilpatrick Counsel (Plaintiff): S. Boucher Counsel (Defendant): A. Mahar Location Heard: Iqaluit, Nunavut Dates Heard: October 25-28 and November 29-30, 2010 Matters: Criminal Code, RSC 1985, c C-46, ss. 268 , 733.1(1) x 2 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) I. INTRODUCTION

[ 1 ] On March 26th, 2010, Jason Kipanik sustained life threatening injuries during a drunken brawl with Jayko Kilabuk at a drinking party in Iqaluit. Mr. Kilabuk used a hunting knife to repeatedly stab and slash at Mr. Kipanik. Mr. Kilabuk has been charged with aggravated assault. [ 2 ] The Defendant said that he was acting in self defence. He admitted that he wielded the knife and that the injuries caused to Mr. Kipanik were life threatening. II. THE EVIDENCE A. The injuries [ 3 ] In the course of the brawl, Mr. Kipanik sustained a 4 cm laceration to the right side of his abdomen. This wound was deep. Mr.

Kipanik’s liver was cut open. He underwent two operations and had to be medivaced to Ottawa to repair a 7.5 cm laceration to his liver. [ 4 ] Mr. Kipanik’s face was also slashed open. He sustained a gaping 6 cm wound that extended from his upper lip to the bottom of his left ear. This laceration had to be stapled shut. Mr. Kipanik was unable to eat solid food properly for some months as a consequence of this injury. [ 5 ] Mr. Kipanik suffered lacerations above his right ear. He was cut on the top of his head, and on his left hip. He also sustained a laceration to a finger on his left hand. [ 6 ] A number of Mr.

Kipanik’s injuries bled heavily. Medical professionals estimated that Mr. Kipanik lost approximately 7 litres of blood prior to these various wounds being closed. [ 7 ] The Defendant also suffered a number of injuries during the brawl. He was beaten about the face and sustained a cut above his left eye. His left eye was badly bruised and closed due to swelling. Mr. Kilabuk suffered a cut to the thumb of his left hand. There was some undetermined amount of bleeding from these injuries. There was also some abrasion and some swelling to Mr. Kilabuk’s neck. B.

The babysitters and their testimony [ 8 ] After an evening of drinking at local bars, the Defendant and his spouse, Napatchie Lyta, returned to their residence. They were accompanied by Lalenia Flaherty and her common law husband, Jason Kipanik. They all intended to continue the drinking at this location and did so. The Defendant and his spouse had an infant at their home. Arrangements were made to get a babysitter. Two teenagers, J.N. and L.K., arrived at the home to take over child care responsibilities. For some time after their arrival, the babysitters remained downstairs in the living room/kitchen area.

They played with the baby and watched the adults continue their party. All of the adults were drunk. The babysitters were sober. [ 9 ] Within approximately twenty minutes of their arrival, J.N. and L.K. saw a dispute occur between the Defendant and his spouse, Napatchie Lyta. Ms. Lyta accused her spouse of biting her hand. The couple had been arguing over the possession or control of the couple’s cannabis. [ 10 ] The babysitters saw the complainant, Kipanik, intervene in this dispute and confront Mr. Kilabuk. Mr. Kipanik has little patience or tolerance for men who physically abuse women.

At this point, J.N. and L.K. were told by Napatchie Lyta to take the infant upstairs and away from the fracas. They did so. [ 11 ] The argument continued. The babysitters listened to a rising crescendo of voices from downstairs. At least three of the adults seemed to be engaged in this argument. After some time, the argument turned physical. The two teens heard the sounds of a struggle.

They both became scared. There was a lot of banging followed by muffled thuds; the sounds continued for an estimated ten minutes. At some point during this fracas, the Defendant was heard to yell out, “call the cops”. Lalenia Flaherty was also heard shouting, “My boyfriend has been stabbed”. When the teens ultimately emerged from the upstairs bedroom, the police were downstairs. Jason Kipanik was lying on the floor of the living room. There was a lot of blood. C. The testimony of Napatchie Lyta [ 12 ] By her own admission, Napatchie Lyta was very drunk when the stabbing occurred.

She claimed to remember only fragments of what happened after she returned home. She remembered Jayko Kilabuk sitting on the couch in the living room with Jason Kipanik standing in front of him. She remembered Kipanik calling her spouse, Jayko, a “woman abuser”, though she claimed to have no memory or understanding of what led up to this accusation. She had no memory of being bitten by Jayko or of making this accusation in the presence of the others in the living room. She remembered Kipanik kicking Kilabuk in the chest when Kilabuk was seated on the couch.

She remembered seeing Kilabuk and Kipanik wrestling with each other on the floor by the couch. She recalled Kilabuk shouting for someone to call the cops. She described her memory as blacking in and out throughout these events. [ 13 ] This witness was unable to say how much time passed between the initial kick and the fight on the floor. She was unable to say what happened between the kick and the struggle on the floor. This witness claimed to have no memory of the stabbing. She had no memory of seeing blood on Kipanik or Kilabuk when they were wrestling on the floor.

She did not know how or why the coffee table in the living room had been moved to one side of the room. She had only a fragmentary recall of the Emergency Medical Services personnel arriving at the home and a vague memory of being arrested by the RCMP. D. The testimony of Lalenia Flaherty [ 14 ] This witness claimed to have no real memory of the incident that brought her to Court. She too claimed to have been grossly intoxicated. She recalled Napatchie Lyta asking one of the males to roll a joint. The women planned to go outside to smoke. She had no memory of hearing or seeing any arguments.

She claimed to have no memory of seeing a violent struggle in the living room. She vaguely recalled hearing someone say that Jason had been stabbed. She recalled seeing a lot of blood. She remembered seeing her spouse, Jason Kipanik, lying on the floor of the living room. She recalled kneeling beside him and telling him to hold his stomach in. She had some memory of being arrested by the RCMP. She recalled hitting her head while being placed into the police vehicle following her arrest. E. The testimony of Jason Kipanik [ 15 ] At trial, Mr.

Kipanik admitted that he was also intoxicated on the night of the stabbing. He claimed to have little or no memory of events leading up to the knife attack. Mr. Kipanik said that his memory suddenly improved when he was stabbed in the abdomen by Kilabuk. [ 16 ] Mr. Kipanik said that after being stabbed in the abdomen, he and Mr. Kilabuk both jumped to their feet from the couch where they had been seated. Mr. Kilabuk was holding the knife in his right hand. He swung the knife a second time. Mr. Kipanik was slashed across the face. Mr. Kilabuk moved to strike a third time. Mr.

Kipanik blocked the swing of Kilabuk’s knife with his hand. It was this defensive move that cut Mr. Kipanik’s little finger. [ 17 ] Kipanik then lunged at the Defendant, grabbing Kilabuk’s right wrist with one hand and Kilabuk’s neck with the other. He said that he attempted to choke Mr. Kilabuk to unconsciousness to prevent a further attack. Mr. Kipanik said that he managed to get behind his assailant and put Mr. Kilabuk in a headlock with his left arm. He then tripped Kilabuk and together they fell to the floor in front of the couch, where the struggle continued. [ 18 ] Mr.

Kipanik was unable to subdue his opponent with the headlock. He let go of Kilabuk’s wrist and delivered three or four powerful blows with a closed fist to Mr. Kilabuk’s face. He did so in an effort to knock Mr. Kilabuk out. According to the complainant, these blows caused the cut over Kilabuk’s left eye and the bruising and swelling to Kilabuk’s face. [ 19 ] While Mr. Kipanik momentarily let go of Kilabuk’s knife hand in order to strike at Kilabuk’s face, Mr. Kilabuk was able to jab at the complainant with the knife. It was at this time that Kipanik sustained the lacerations above his right ear and to his scalp.

[ 20 ] Mr. Kipanik was unable to knock out his assailant. Again, he grabbed Kilabuk’s knife arm by the wrist. The struggle on the floor continued. Kilabuk attempted to shift the knife from his right hand to his left hand in order to strike again at Kipanik. There was a struggle for control of the knife. As Kilabuk grabbed for the knife with his left hand, Kipanik pulled on Kilabuk’s arm, causing the knife to cut Mr. Kilabuk’s own finger. [ 21 ] Kipanik called on his spouse, Lalenia Flaherty, for assistance. He asked her to help him to disarm Kilabuk.

She came to his aid and together they took the knife away from Kilabuk. However, the struggle on the floor continued. Kipanik did not want to release his hold on Kilabuk for fear that his attacker would retrieve the knife or get another one to continue the attack. [ 22 ] Kipanik said that they continued to wrestle with one another on the floor until the police arrived to separate the combatants. [ 23 ] In cross-examination, this witness conceded that he might have physically intervened to confront Mr. Kilabuk if he thought that Kilabuk was being abusive towards Napatchie Lyta.

However, he had no memory of actually doing so. This witness conceded that he was aware of Kilabuk’s previous history of domestic violence towards Napatchie Lyta. F. The testimony of the Defendant [ 24 ] Mr. Kilabuk had been drinking with the others and was also intoxicated on the evening in question. He testified that his spouse falsely accused him of biting her hand. An argument ensued. Lalenia Flaherty and Jason Kipanik became involved in this dispute. Mr. Kilabuk said that he tired of the argument and asked the others to clear out. Kipanik then accused Kilabuk of being a woman beater.

The argument heated up. [ 25 ] Mr. Kilabuk said that while sitting on the couch, Kipanik advanced towards him and kicked him in the chest. Kipanik then punched Kilabuk in the face. This blow knocked him out. When Mr. Kilabuk regained consciousness, he found Kipanik on top of him. Kilabuk told the others to call the police while Kipanik continued his attack. More blows were delivered to Kilabuk. Mr. Kilabuk said that he lost consciousness a second time. When he came to, Kilabuk was lying face down on the floor and Kipanik was still on top of him. Kipanik was squeezing Kilabuk’s throat hard, with a hand. Mr.

Kilabuk could not breathe. [ 26 ] Mr. Kilabuk testified that, with the complainant on his back and with his face bleeding from the attack, he crawled some distance over to a black work bag that was sitting near the doorway to the porch. The Defendant said that while he was crawling to the bag, Kipanik continued to punch him. Mr. Kilabuk reached into his bag and retrieved a knife. He said that he was able to do so with Kipanik sitting on his head and shoulders. [ 27 ] Mr. Kilabuk said that he stabbed Kipanik in the abdomen to end the beating, but Kipanik did not stop. The struggle on the floor continued.

The two adversaries eventually rolled back to the area in front of the couch, where the fight first started. After some time, Mr. Kipanik seemed to go into shock, so Mr. Kilabuk threw his knife away. They then continued to wrestle with one another until the police arrived. [ 28 ] Mr. Kilabuk gave no evidence as to when he slashed Kipanik in the face. He did not say when or how Mr. Kilabuk was cut above his right ear or on the top of his head. G. The Defendant’s statements to the RCMP [ 29 ] During the investigation of this offence, Mr. Kilabuk gave a number of statements to the RCMP.

These statements have been determined to be voluntary and admissible for trial purposes. [ 30 ] While at the hospital, the Defendant made an unsolicited statement to the RCMP officer escort about the circumstances of the alleged offence.

[ 31 ] Constable A. Szuckf indicated that after the Defendant had been treated by a doctor, while awaiting transportation back to the police detachment, the Defendant said that: a. The complainant had arrived at the Defendant’s door; b. When the Defendant opened his door, the complainant had lunged at him with a knife. This is what caused the cut over the Defendant’s left eye; c. A struggle then ensued; d. In the course of struggling with Kipanik for control of the knife, the Defendant’s thumb was cut; e.

The cut to the Defendant’s thumb was a defensive wound. [ 32 ] The Defendant later gave a formal statement to Constable R.J. Daley about the circumstances of the alleged offence. This statement was given after the Defendant had been formally cautioned. The Defendant chose to waive his right to counsel. The Defendant was insistent that the police know his side of the story. The taking of this second statement was videotaped. [ 33 ] In this second statement, the Defendant said as follows: a. Kipanik accused him of assaulting his wife, Napatchie Lyta; b.

Kipanik then attacked the Defendant, kneeing him in the ribs and punching him in the eye; c. A struggle followed; d. The Defendant pulled Kipanik down to the floor by the couch; e. The Defendant told the others to call the cops; f. Kipanik pulled a knife and tried to cut the Defendant; g. There was a struggle for control of the knife; h. The Defendant was able to get the knife away from Kipanik; i. In attempting to get the knife back from the Defendant, Kipanik cut his own hand; j. The Defendant then restrained Kipanik from getting up; Kipanik was somehow cut with the knife during this process; k.

The Defendant was not sure where Kipanik got cut; l. The Defendant did not intend to stab Kipanik; m. The Defendant did not get a good look at Kipanik’s knife and did not know where Kipanik got it from. [ 34 ] When Constable Daley challenged Mr. Kilabuk on the accuracy of this account, Mr. Kilabuk quickly conceded that he had made up much of what he had told the Constable earlier to make the incident sound better for him. Mr. Kilabuk conceded that he remembered being kicked and punched by Kipanik. He remembered calling for help, but little else.

He claimed that he was in a blackout state for most of the incident. [ 35 ] The Defendant was invited by Constable Daley to write an apology letter to Kipanik and he did so. Mr. Kilabuk was left alone to compose this letter. Mr. Kilabuk said, in his own words: “Jason I do not rember what Happend The night it happend I wish it did not The way it happend I have lots to think and be sorry... I do no think you will ever forgive me for my actions but i am very sorry for what i have done to you...” [sic] H. Conflicts between the Defendant’s statements to police and his trial testimony

[ 36 ] The Defendant’s testimony at trial stood in stark contrast to what he said to the RCMP in the early stages of their investigation. The Defendant’s initial claim that it was Kipanik who pulled the knife was contradicted by the Defendant himself, who testified at trial that he produced a knife from his own workbag in order to defend himself. In his formal statement to police, the Defendant ultimately claimed to have no memory of the events. The claim was repeated in his letter of apology to Kipanik.

This is to be contrasted with the Defendant’s detailed testimony at trial which outlined the actions and movements of the combatants throughout their struggle. Similarly, in his formal statement to the police, the Defendant claimed that the stabbing was not intentional and that he did not know which injuries Kipanik had sustained. At trial, the Defendant acknowledged that the stabbing had been deliberate, but claimed that this had been done in self defence.

At trial, the Defendant claimed to be very aware of where he had stabbed the complainant. [ 37 ] There is absolutely no substance to the suggestion made by the Defendant at trial that he was pressured into retracting the first part of his formal statement to the police in order to put an end to the interview process. The Court has had an opportunity to view the videotape. It has listened to the audio tapes of the earlier interactions of this citizen with the police. There was no pressure. There were no inducements.

At no point in his interaction with the police did the Defendant say that he wanted to discontinue the interview. He made no requests beyond asking for juice, a number of cigarette breaks, and a trip to the washroom. These requests were all granted by the RCMP. The interview was not a long one. It lasted for approximately 2 hours, 23 minutes, including the various breaks. All of the evidence suggests that the Defendant wanted to give a statement to the police.

All of the evidence suggests that he was prepared to do so without speaking to counsel. [ 38 ] There is certainly no evidence to suggest that the Defendant was pressured into writing the letter of apology to Kipanik. The words written down in the apology letter came from the Defendant and no one else. [ 39 ] Even if the Defendant’s later admission to the police of ‘no memory’ came about as a result of police pressure, which is not substantiated on the evidence, the first part of the Defendant’s formal statement to Constable Daley is also contradictory.

The claim that the stabbing of Kipanik was not intended is completely at odds with what the Court was told by Mr. Kilabuk under oath at trial. In Mr. Kilabuk’s first version of the incident (the statement given at hospital to Constable Szuckf) and in the videotaped formal statement given later to Constable Daley, the Defendant alleged that it was Kipanik who had pulled the knife. This cannot be reconciled with what Mr. Kilabuk said in the courtroom. I. The crime scene evidence [ 40 ] There was a significant amount of blood in the area immediately in front of the couch.

Blood stains of various kinds were identified on the couch itself and on the wall behind the couch. The coffee table immediately in front of the couch had blood stains of various kinds on it, on both its upper surface and on its lower shelf. The blood stains on the lower shelf are consistent with a blood source originating from a level below the top of the table. [ 41 ] The coffee table had been shoved to one side of the room. It normally sat immediately in front of, and in the center of, the couch. [ 42 ] There is no evidence of blood on the floor in the immediate area of the black work bag where Mr.

Kilabuk said he crawled to obtain the knife. If Mr. Kilabuk’s face had been bleeding as a result of the blows already delivered by Kipanik it is remarkable that, in the process of crawling face down to the bag, no blood of any kind was transferred to the floor. [ 43 ] There was some blood of the complainant located on a shoe found in the porch area of the house, some distance away from the black bag (see T-3 photographs 5 and 6). Defence counsel, in his cross examination of Constable Glanville, suggested that the black bag was only 18 inches away from the bloody shoe found in the porch.

Constable Glanville agreed that the shoe was a short distance away from the workbag and estimated the distance to be 2 feet. This distance was never measured. A review of photographs 2, 5, 7, 11 and 12 suggests that the actual distance was significantly more than that estimated by Constable Glanville. The bloody shoe was located well beyond the black bag, and inside the porch area of the residence. The forensic expert suggested in his evidence that Kipanik’s shoe likely came into contact with blood elsewhere and was deposited in the porch at some point after becoming saturated with blood.

There is no suggestion in the evidence of either the Defendant or the complainant that the struggle moved at any time into the porch. [ 44 ] If Kipanik was continuing to punch Mr. Kilabuk’s bloody face in the vicinity of the black bag, as alleged by Mr. Kilabuk, it is remarkable that no blood of any kind was found on the floor, wall or end table, or on the black work bag itself, immediately adjacent to where Kilabuk said this beating took place.

[ 45 ] According to Mr. Kilabuk, it was in this area that he first stabbed Mr. Kipanik in the abdomen. It is again noteworthy that there was no evidence of bloodletting from a stabbing event at this location. [ 46 ] If the two assailants grappled with each other after the stabbing and rolled on the floor back to the area in front of the couch, as claimed by Mr. Kilabuk, it is again remarkable that there was no blood staining of any kind on the floor from this movement. [ 47 ] Immediately beside the black work bag was a small end table. A small humidifier was located within a short distance of the end table.

These items are depicted in Trial exhibit T-3, photographs 7, 11, 12 and 16. There is no evidence that the end table beside the black bag or the humidifier was displaced or disturbed by a violent struggle. There is a large television and television stand depicted in photograph 11. Mr. Kilabuk would have had to crawl past this TV and back again, to continue the struggle in the area of the couch. In the course of moving from the area in front of the couch to the black bag and back again, it appears that nothing was disturbed along the route of travel. III. THE LAW A.

The standard of proof required for a conviction [ 48 ] The burden of proof necessary to establish guilt remains upon the Crown throughout this criminal trial. This burden never shifts to the Defendant. The law presumes Jayko Kilabuk’s innocence. The Defendant does not have to provide evidence to establish his innocence now, or at any other time. [ 49 ] The standard of proof necessary to establish guilt is high. It is only proof beyond a reasonable doubt that can displace the presumption of innocence. Suspicion alone is not enough.

If there is a reasonable doubt arising from the evidence on any essential element required to be proved by the Crown, the Defendant is entitled to the benefit of that doubt. [ 50 ] A criminal trial is not a credibility contest between Crown and Defence witnesses. If a reasonable doubt arises from the credibility of any witnesses heard at trial, the Defendant is entitled to the benefit of that doubt and must be found not guilty. [ 51 ] If the Defendant’s evidence is not believed, but this evidence raises a reasonable doubt, the Defendant is still entitled to the benefit of this fragile doubt.

An acquittal must result. [ 52 ] Even in circumstances where a Defendant’s evidence has been rejected a finding of guilt can only be made where the Court is satisfied, on credible evidence, that the Crown has established the proof necessary for a conviction. [ 53 ] This is the standard required for a criminal conviction. Nothing less will suffice. B. The defence of self defence [ 54 ] A conviction can only be entered if the Crown proves beyond a reasonable doubt that Mr.

Kilabuk was not acting in self defence, as this is defined by law, when he inflicted this harm upon the complainant. [ 55 ] For policy reasons, the law places strict limits upon the infliction of bodily harm or death on another human being in self defence. The Defendant who inflicts serious bodily harm or death in repelling an attack must honestly believe, on reasonable grounds, that he or she is at risk of serious bodily harm or death from the violence with which the assailant pursues the attack.

The Defendant must also believe, on reasonable grounds, that he or she has no other choice to preserve themselves from harm, than to inflict serious bodily harm or death upon their assailant.

[ 56 ] It is left to the Crown to prove beyond a reasonable doubt, that the Defendant did not honestly believe, or had no reasonable grounds to believe, that he was facing serious bodily harm or death, when he inflicted the injuries that he did on Mr. Kipanik. [ 57 ] It is left to the Crown to prove beyond a reasonable doubt that there could be and was no reasonable belief on the Defendant’s part, that the infliction of this level of harm upon Mr. Kipanik was the only option open to this Defendant under the circumstances. IV.

ANALYSIS [ 58 ] Much of the Defendant’s testimony at trial was contradicted by, or is inconsistent with, the Defendant’s earlier statements to the police. The evidence given by Constable Daley suggested that the Defendant was readily prepared to lie to the police. [ 59 ] The physical evidence from the crime scene is not consistent with the Defendant’s version of events. There is no physical evidence to suggest that this struggle moved from the vicinity of the couch to the area of the black bag, as claimed by the Defendant in his testimony at trial.

The physical evidence from the crime scene is consistent with what the complainant says happened, namely, a violent struggle accompanied by significant bloodletting, occurring in the immediate area of the couch and on the floor beside the coffee table. This explains why there was so much blood in the area of the couch and on the floor in front of the couch. This explains why the coffee table was displaced from its usual position, immediately in front of and in the center of the couch.

When the RCMP arrived, the two combatants were found grappling with one another on the floor in this same area. [ 60 ] The Defendant’s testimony did not account for many of the injuries sustained by Mr. Kipanik. Mr. Kilabuk did not give any explanation for when or how these other injuries were inflicted, namely the 6 cm. cut sustained to Kipanik’s face, his hip, the top of Kipanik’s head and the side of Kipanik’s face above the ear. Nor did Mr. Kilabuk explain how his own finger was cut. The mechanics of how Mr.

Kilabuk wielded the knife were not described by the Defendant in his testimony at trial. [ 61 ] This is to be contrasted with the evidence of the complainant. In his testimony, Mr. Kipanik gave a detailed chronological account of what happened during the struggle with the Defendant. He accounted for the injuries that he sustained during the attack and explained what defensive steps he took to try and protect himself. Mr. Kipanik’s account explained the injuries that were inflicted upon Mr. Kilabuk while Kipanik was defending himself.

The chokehold applied to Kilabuk thus resulted in the abrasions and swelling in Kilabuk’s neck area. The cut over Kilabuk’s eye and the severe bruising and swelling to Kilabuk’s face resulted from a number of powerful blows directed at Kilabuk’s face by Kipanik in an effort to knock out his alleged assailant. The cut to Kilabuk’s finger was caused by a struggle for possession and control of the knife. [ 62 ] The complainant’s testimony is substantially corroborated by Mr. Kipanik’s injuries, the injuries sustained to the Defendant and the crime scene evidence.

For this reason the Court is satisfied, beyond a reasonable doubt, that the complainant’s memory from the first stabbing onward is, in fact, reliable and true despite the complainant’s admitted intoxication. The Court is satisfied beyond a reasonable doubt that the chokehold and the damaging blows to the Defendant’s face by Kipanik came after, and not before, the stabbing event. These were defensive reactions by Kipanik to the stabbing.

The Defendant’s evidence does not raise a reasonable doubt about how and when the knife was used to inflict life threatening injuries on Kipanik. [ 63 ] The Court has no confidence that the latest version of the incident given by the Defendant in the Courtroom was accurate, save for those small parts of his testimony that were corroborated by other witnesses or are confirmed by independent physical evidence. The Defendant’s evidence, with respect to the use of the knife for reasons of self defence, is rejected. A.

Provocation [ 64 ] There is some evidence to suggest that the complainant may have picked a fight with the Defendant at some point before the stabbing. This is suggested by the evidence of the babysitters and that of Napatchie Lyta. This would explain why the Defendant was overheard by the babysitters asking for the police to be called. The Defendant may have been kicked by Mr. Kipanik in apparent retaliation for his supposed biting of his spouse’s hand. The complainant has no memory of doing so, but readily admitted to this possibility. The Defendant is entitled to the benefit of the doubt on this point.

[ 65 ] No independent witness was able to say, with certainty, how much time passed between the exchange of words between Kipanik and the Defendant, and the stabbing. No witness was able to describe what happened between the kick to Kilabuk, observed by Napatchie Lyta, and Mr. Kilabuk’s resort to a knife. [ 66 ] One of Mr. Kipanik’s shoes was found near the coffee table. His other shoe was found in the porch area, and it was bloodstained. The blood on the upper surface of the shoe suggests that Mr. Kipanik may have been wearing this shoe when he was stabbed. Mr.

Kipanik’s outdoor jacket also appears to have been pierced by a knife. Kipanik’s jacket and shoes had both been taken off earlier, on his entry to the house. If Kipanik had been wearing his jacket and shoes at the time of the stabbing, as is suggested by the evidence, he may have been getting ready to leave the house when he was stabbed in the living room. [ 67 ] Mr. Kipanik was a guest in Mr. Kilabuk’s home. Mr. Kilabuk had been verbally insulted by his guest. Kipanik’s intervention in Mr. Kilabuk’s alleged assault on his spouse (the ‘biting’) would have greatly angered Mr. Kilabuk.

A kick would certainly add to this anger. It is likely that Mr. Kilabuk obtained a knife in order to avenge the verbal insult and physical provocation by Mr. Kipanik. [ 68 ] Even assuming that the complainant started a physical altercation by delivering a kick to the Defendant’s ribs at some point before the stabbing, this did not justify the level of force subsequently used by the Defendant. The resort to a knife and the infliction of the many injuries upon Kipanik was a grossly disproportionate response to the threat posed to the Defendant by Kipanik’s kick. V.

CONCLUSION [ 69 ] The Court is satisfied on all the evidence that the Crown has proven beyond a reasonable doubt that the Defendant, on March 26th, 2010, committed an aggravated assault upon Jason Kipanik, as alleged. [ 70 ] The provocation associated with Kipanik’s initial assault can properly be taken into account on sentence. [ 71 ] The Defendant admitted that he was subject to a probation order that required him to keep the peace and be of good behaviour.

In committing the offence of aggravated assault, the Defendant also breached this order and stands convicted of willfully breaching this condition of the court order. [ 72 ] A condition of this same probation order prohibited Mr. Kilabuk from possessing or consuming alcohol. By his own admission, Mr. Kilabuk was knowingly in breach of this order when he drank heavily on the night of March 26th. He stands convicted of this count accordingly. Dated at the City of Iqaluit, this 21th day of January, 2011. ___________________ Justice R. Kilpatrick Nunavut Court of Justice