R. v. Ameralik, 2021 NUCJ 3

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Ameralik, 2021 NUCJ 3 Date: 20210127 Docket: 22-17-53 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Sandra Ameralik ________________________________________________________________________ Before: Madam Justice Charlesworth Counsel (Crown): G. Magee, G. Lyndon Counsel (Accused): A. Crowe, S. Paddock Location Heard: Gjoa Haven, Nunavut Date Heard: October 26-31, 2020 Matters: Trial decision on self-defence to murder under Criminal Code of Canada, RSC 1985, c C-46, ss. 34(1) and 235(1) . REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

Anonymized Judgment Disclaimer: This judgment has been partially anonymized at the discretion of the authoring Justice to protect vulnerable parties. Letters have been assigned at random. Contents I. OVERVIEW ... 4 II. INTRODUCTION .. 4 III. FACTS .. 5 IV. SECOND-DEGREE MURDER .. 5 V. MANSLAUGHTER .. 6 VI. SELF-DEFENCE .. 6 VII. THE EVIDENCE .. 7 A. The pathologist 7 B. Other Crown evidence and witnesses . 8 C. Defence witnesses . 9 D. Occurrence reports and related evidence . 10 E. The accused’s evidence: the day of the offence . 13 VIII. ANALYSIS .. 14 A. Self-defence by a battered spouse . 14 B.

Reasonableness . 17 i. The nature of the force or threat 18 ii. The extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force . 18 iii. The person’s role in the incident 18 iv. Whether any party to the incident used or threatened to use a weapon 19 v. Size, age, gender, and physical capacity; the parties’ relationship and prior use or threat of force; history of the parties’ communication/interaction .. 19 vi. The nature and proportionality of the person’s response to the use or threat of force 19 C. Conclusion on self-defence . 20 IX.

CONCLUSION .. 20

I. OVERVIEW [ 1 ] Sandra Ameralik was charged with second degree murder in the death of her spouse Howie Aaluk. Ms. Ameralik, who was pregnant with the couple’s sixth child, stabbed Mr. Aaluk in the chest after he confronted and threatened her in the small confines of their kitchen. She tried to stab him in the arm, but the blade slid down into the chest cavity and pierced his lung and heart. Ms. Ameralik suffered a long history of abuse at the hands of Mr. Aaluk. I found Ms. Ameralik to be a credible witness at her trial. I found her not guilty of murder.

I also found her not guilty of manslaughter based on self-defence. II. INTRODUCTION [ 2 ] The charge against Ms. Ameralik is one of the most serious criminal charges the state can make against an individual. This court must both acknowledge the seriousness of the charge and consider the context in which the incident took place. Ms. Ameralik has advanced a positive defence to the charge of murder.

The theory of her defence is that a long history of intimate partner violence and a subjective fear of the deceased and the threat he was posing to her and her unborn child at the time of the incident left her no choice but to defend herself by stabbing the deceased. Given the abuse so frequently experienced by vulnerable Inuit, this court must give such arguments serious consideration. [ 3 ] As this court has often recognized, and as Pauktuutit Inuit Status of Women has frequently spoken about, intimate partner violence is a serious problem in Inuit communities.

Women are most often the targets of intimate partner violence, though men experience violence in the context of their intimate relationships as well. It is incumbent upon the Nunavut Court of Justice to consider the high number of Inuit who live in abusive and violent situations, have deep and traumatic memories of abuse, or have witnessed a close family member being abused, assaulted, or killed.

These factors must inform this court’s judgments in situations involving intimate partner violence. [ 4 ] Where the trial record supports a finding that the accused suffered a history of intimate partner violence at the hands of the deceased, it must not be ignored. Where the record supports a finding that the accused was justified in using force in self-defence against the deceased, the accused is absolved of liability for the charge stemming from the death. III. FACTS [ 5 ] On June 25, 2017 a tragedy unfolded at the Aaluk/Ameralik home in Gjoa Haven.

We know that on that date Sandra Ameralik caused the death of Howie Aaluk by stabbing him one time in the upper chest with a large kitchen knife that she was using to prepare dinner for the family, puncturing his lung and heart and causing his death. Ms. Ameralik was charged with the second-degree murder of her partner of almost ten years and the father of their six children. Ms. Ameralik was 29 years old and 29 weeks pregnant with the couple’s youngest child at the time of the incident. Mr. Aaluk was 6’3”. Ms. Ameralik is 5’1”. IV. SECOND-DEGREE MURDER [ 6 ] For Ms.

Ameralik to be convicted of second-degree murder, the Crown must prove that she meant to cause Mr. Aaluk’s death or meant to cause him bodily harm that she knew was likely to cause his death and was reckless whether death ensued. [ 7 ] Ms. Ameralik testified that she meant to stab Mr. Aaluk in the arm. She also said that she had held some resentment towards Mr. Aaluk the previous fall for accepting a job at a mine which took him away from the home for weeks at a time. Ms.

Ameralik was unhappy with those frequent and lengthy absences as she felt they were both still grieving the death of their infant daughter and needed to be together.

[ 8 ] The evidence showed that it was a single stab wound, near the shoulder of the deceased, that resulted in his death. The evidence given by the pathologist, to be discussed below in detail, was that a minimal amount of force, about two pounds per square inch, was all that would have been required to cause the fatal injury suffered by the deceased. Ms. Ameralik withdrew the knife before it went in all the way to the hilt. [ 9 ] I find the Crown has failed to show that Ms. Ameralik meant to cause Mr.

Aaluk’s death or meant to cause him bodily harm which she knew was likely to cause his death and was reckless as to whether death ensued. Accordingly, I find Sandra Ameralik not guilty of second-degree murder. V. MANSLAUGHTER [ 10 ] This, however, is not the end of the story. For all crimes in Canada, lesser included offences are part of the predicate charge. This means a finding of not guilty on the most serious count does not automatically lead to the complete exoneration of the accused.

Manslaughter is a lesser included offence of second-degree murder ( section 662(3) of the Criminal Code ). [ 11 ] My analysis now turns to whether Ms. Ameralik is guilty of manslaughter for causing the death of the accused by way of an illegal act. Ms. Ameralik says her action in stabbing the accused was justifiable on the basis of self-defence. [ 12 ] As in all criminal cases, the Crown has the burden of proving an offence beyond a reasonable doubt. A reasonable doubt is a real doubt based upon the facts of the case; it is intertwined with the fundamental presumption of innocence.

A reasonable doubt cannot be based on sympathy or prejudice and must not be imaginary or frivolous. [ 13 ] Ms. Ameralik admitted that she stabbed the deceased and conceded that the stabbing led to his death. The trial focused solely on the issue of self-defence. As mentioned in the introduction to this decision, Ms. Ameralik’s defence relied on a narrative that she was a victim of intimate partner violence at the hands of the deceased.

The theory of her case was that she had suffered intimate partner violence for years prior to the fatal incident and that this violence, coupled with the events of the day and her particularly vulnerable state, led to Ms. Ameralik justifiably taking physical action against the deceased as she perceived him to be a threat to her and her unborn child. VI. SELF-DEFENCE [ 14 ] Canadian law on self-defence was recently updated by Parliament. The codification of the three-part test is found in s. 34 of the Criminal Code . The three-part test is as follows: 34

(1) A person is not guilty of an offence if

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

c) the act committed is reasonable in the circumstances. [ 15 ] As the trial judge, I must consider any defence, including self-defence, for which there is an “air of reality”. An air of reality exists when it is said that an accused could reasonably be acquitted based on the evidence put forward.

[ 16 ] If such an air of reality is established, the Crown must then disprove at least one of the three elements found in s. 34(1) , above. In this case the Crown conceded that there was an air of reality to self-defence. I agree. VII. THE EVIDENCE [ 17 ] With these principles in mind, I turn to the evidence presented. A. The pathologist [ 18 ] Dr. Weinberg is currently the Deputy Chief Medical Examiner for the New Hampshire Office of the Chief Medical Examiner in Concord, New Hampshire. In 2017, he was working as a pathologist in Edmonton, Alberta and he performed the autopsy on Howie Aaluk on June 29, 2017. Mr.

Aaluk was 6’3.5” tall and weighed 313 pounds. His body had one stab wound and according to Dr. Weinberg it was “relatively high and towards the relatively far left side of the chest and really encroaching on the shoulder region” (pg. 13, ll 19-21). Dr. Weinberg testified that the part of the wound towards the centre of the body was higher on the body and was made by the blunter edge of a single-edged weapon. The wound path was through the skin and soft tissues of the chest region, then through the breastplate where it “passed along” the fifth rib, which was injured by the sharp side of the knife.

The knife then punctured Mr. Aaluk’s left lung and his heart. The total wound track was a little over eight inches, or 20 centimetres. The knife blade was about 12 inches, or 30 centimeters, long. [ 19 ] Dr. Weinberg explained that it takes about two pounds of pressure to puncture the skin, but after that, only bone would provide more resistance to a knife. In this case, the injury to the rib “was a somewhat glancing type of injury” (pg. 27, l 27). Dr.

Weinberg could not quantify the force required to get past the rib, but stated that once past, “the resistance that would have been encountered by the lung and the heart is relatively minimal” (p. 28, ll 14-16). He noted that the rib is close to the skin and “the amount of force necessary to cause a five-centimetre-deep wound versus a 20-centimetre-deep wound would not vary substantially” (pg. 28, ll 3-6). [ 20 ] There were other minor injuries noted on Mr. Aaluk’s body: bruising on the side of the head, a mark on the bridge of the nose, and an abraded bruise on the back side of his left arm.

All these injuries occurred before death, and possibly about a day or so before the stabbing. None of those injuries appeared to be offensive or defensive in nature, and only the bruises on his head are relevant, because the accused says she caused them; we do not know what caused the other injuries, or when they happened. [ 21 ] Dr. Weinberg also noted that there was no alcohol in Mr. Aaluk’s system, and although there was some marijuana present, it was impossible to say how much he had, or whether it was taken on June 25. B.

Other Crown evidence and witnesses [ 22 ] Videotapes of interviews of some of the children in the home that afternoon were shown during the trial and made an exhibit, along with a transcript of those interviews. As well, there was a videotape of Ms. Ameralik’s questioning by the police the day after, in which she said she stabbed Mr. Aaluk because “he told her to.” [ 23 ] The audio statement of Mr. Aaluk, obtained while he was in the Health Centre after being stabbed, confirms what we already know: that Ms. Ameralik stabbed him. In his evidence, Cpl. Chretien of the RCMP said he also overheard Mr.

Aaluk say words to the effect of, “I told her to stab me”, “I was stupid to say that” and “something like, ‘just stab me’.” [ 24 ] Ms. Ameralik’s birth parents, Jack and Lucy Ameralik gave evidence. Ms. Ameralik was adopted out to her grandparents at birth and was not raised by her birth parents. At the time of the stabbing, Jack and Lucy Ameralik lived very close to the Aaluk/Ameralik residence: about a minute’s walk away. Mr. Aaluk called their home after he was stabbed, and Jack Ameralik went over to see what had happened.

He then called his wife, who was working at the Community Care Centre right beside the Health Centre. Lucy Ameralik soon came over with a Nurse, and they took Mr. Aaluk to the Health Centre.

[ 25 ] Jack Ameralik described an incident in 2012 when his daughter came to their home, bruised and crying. When Mr. Aaluk came there to get her, he was drunk, and Jack Ameralik had to hold him down in the porch area of their home until the RCMP came. Other than that incident, Jack Ameralik said that he did not know much about their relationship, except that they seemed to fight a lot on Facebook. [ 26 ] Lucy Ameralik described taking Mr. Aaluk to the Health Centre after he was stabbed, as well as the incident described by her husband above, from 2012. She said she knew of three times when Mr.

Aaluk drank and her daughter ran away. Mr. Aaluk called her and apologized for fighting with her daughter on the day that he died. C. Defence witnesses [ 27 ] The defence called three witnesses: Sandra Ameralik, and two of her friends, Natalie Porter and Leah Nahaulaituk. [ 28 ] Ms. Porter has been friends with Ms. Ameralik since about 2004 and saw her with black eyes three or four times. She said that she did not ask Ms. Ameralik what happened, because she “knew they were from Howie” – nobody else would do that to her. [ 29 ] Ms. Nahaulaituk moved to Gjoa Haven in 2003, and even before that saw Ms.

Ameralik every spring when the latter’s family would skidoo to Taloyoak. Between 2014 and 2017, Ms. Nahaulaituk would see Ms. Ameralik every couple of days; they have daughters the same age who play together. She said that her daughter had spent a lot of time at the Aaluk/Ameralik house over the year before this incident. Ms. Nahaulaituk described one incident, before 2014, where Ms. Ameralik was hiding in the dark in a bedroom at her parents’ place. When Ms. Nahaulaituk turned the light on, she saw that Ms. Ameralik had bruises and swelling on her face. Ms. Ameralik said Howie beat her up. D.

Occurrence reports and related evidence [ 30 ] Ms. Ameralik was asked to confirm information contained in seven RCMP occurrence reports that were filed by the Crown with consent of the Defence, as Exhibit 8. These occurrence reports are not agreed statements of fact; they are versions of various events as reported to the RCMP by one of the parties, or other witnesses. [ 31 ] The first reported incident happened in July 2010, when Ms. Ameralik and Mr. Aaluk’s oldest child, AA, was almost two years old. The couple were both drinking, and while their child was in an amauti, Ms. Ameralik said Mr.

Aaluk started “roughing” her up: he grabbed her and punched her or put her down. Mr. Aaluk’s mother provided some confirmatory information to the RCMP (she heard something that sounded like a punch), and Mr. Aaluk was arrested and charged. At the trial on March 2, 2011, Ms. Ameralik said she was too intoxicated to remember what happened and she agreed on cross examination that Mr. Aaluk grabbed her on the arm to defend himself from her. The charge was dismissed.

At that time, AA was two and a half, and the parties’ second child BB was about a month old. [ 32 ] The next incident involving the RCMP happened on August 25, 2012, when the couple’s third child, CC, was two months old. According to the occurrence report, Ms. Ameralik’s parents called the police after their daughter came to their home with injuries to her face and head. Mr. Ameralik was holding Mr. Aaluk down when the police arrived. The child BB’s face was scratched, and Mr. Aaluk was charged with two counts of assault causing bodily harm. [ 33 ] Ms. Ameralik testified before me that Mr.

Aaluk later asked her not to go to court so she told the RCMP that her kids were sick and did not attend court on the scheduled trial date of May 27, 2013. The charges were withdrawn on that date, by which time AA was almost five, BB was two years old, and CC was almost one year old.

[ 34 ] Ms. Ameralik gave other evidence about this incident: she said there was a party for Mr. Aaluk’s cousin’s graduation, and the couple shared one or two mickeys of vodka. Ms. Ameralik woke up at the Health Centre with a fractured cheekbone, some teeth knocked out and her face bruised. This appears to be the incident described by Ms. Ameralik’s parents in their evidence and is possibly the one mentioned by Ms. Nahaulaituk. [ 35 ] The third occurrence report details allegations that on April 14, 2013 the police were called to the Aaluk/Ameralik home because of domestic abuse. Only Mr.

Aaluk was present in the home when they arrived. He was intoxicated in the kitchen, with scratches on his face. Mr. Aaluk was arrested for breach of the undertaking he was still on from the second incident. Ms. Ameralik was found crying and upset next door, but she declined to make an audio statement and said she would not go to court. She had no marks on her, but told the police that Mr. Aaluk grabbed her, shook her hard and pulled her hair. Mr. Aaluk was charged with assault as well as breach, but the charges were withdrawn on May 27, 2013. [ 36 ] Ms.

Ameralik described this incident in her evidence before me: she and Mr. Aaluk were drinking vodka with another person, when Mr. Aaluk pushed her, and she pushed him back. Then, things got out of hand, and he “put her down” (grabbed her wrists and bent them back so she could not do anything, then pushed her onto the floor) and punched her in the head. [ 37 ] The fourth incident involving the police happened on October 31, 2014. Ms. Ameralik called the RCMP to complain that Mr. Aaluk had assaulted her.

She was so intoxicated that the officer on the phone could not understand what had happened, but the next day, she told the police that she and Mr. Aaluk were arguing about the children (AA was six, BB was three and a half, CC was two and their new baby DD was three months old) when he punched her in the head and neck and scratched her face. Mr. Aaluk was charged with assault, but at the scheduled trial date in March 2015, Ms. Ameralik did not attend court and had not been cooperative with the Crown, so the charge was dismissed. [ 38 ] In her evidence in this trial, Ms.

Ameralik said she does not currently remember this incident. In this trial, Ms. Ameralik also said that she usually did not go to court because Mr. Aaluk would tell her to stay home and say she could not find a baby-sitter, or her children were sick. She said she was afraid if she went to court “that he was going to either fight me or hurt me.” [ 39 ] The fifth reported incident was on September 17, 2016. By that time, the couple’s fifth child, EE, who was born February 28, 2016 had passed away at home from a birth defect, on July 4, 2016. Ms.

Ameralik was in Jasmine Kikoak’s home, intoxicated and causing a disturbance. When police arrived, Ms. Ameralik had an infant on her back and her other three children were in the residence. She stepped towards Mr. Aaluk, swinging her fists, which caused the child on her back to swing around. The police grabbed her before she contacted Mr. Aaluk and arrested her for assault. Mr. Aaluk requested no further action be taken and she was not charged. [ 40 ] The sixth incident occurred just a few months later, on November 11, 2016, and was another complaint about Ms.

Ameralik causing a disturbance, this time outside a residence by being intoxicated and yelling. While police were arresting Ms. Ameralik, they became aware of a disturbance across the road – at the Aaluk/Ameralik residence. Mr. Aaluk was inside yelling and agitated and very intoxicated. Children were in the home, crying and upset. Lucy Ameralik came to take care of the children, and Mr. Aaluk was arrested for breach of the peace. No charges were laid against either party. [ 41 ] The seventh incident occurred on April 9, 2017. Ms. Ameralik called the RCMP to complain that Mr.

Aaluk was intoxicated and yelling at the children. She requested that he be removed. In evidence at this trial, Ms. Ameralik said she was “afraid that he was going to start either hitting me or beat me up while he was intoxicated.” The RCMP attended and arrested Mr. Aaluk for mischief; he was released when sober. [ 42 ] Also in April 2017, Ms. Ameralik had gallbladder surgery in Yellowknife, which required a two inch incision above her belly button. At that time, she was pregnant with their sixth child, FF, who was born on September 15, 2017. [ 43 ] Ms. Ameralik gave evidence that Mr.

Aaluk would become mad at her several times a month, if he did not have weed or if he thought she was cheating on him. She would be annoyed and scared when that happened. [ 44 ] Ms. Ameralik then testified that sometimes Mr. Aaluk would use his body to lean on her, or bend her wrists, to control her.

Sometimes he would hit her on her back or legs, where people would not see the resulting bruises. Ms. Ameralik did not reference the black eyes that Ms. Porter believed were caused by Mr. Aaluk. Ms. Ameralik also said that he punched her twice in the stomach while she was pregnant with their daughter, FF; and once during that pregnancy he leaned on her legs with his weight when she was sitting on the couch. E. The accused’s evidence: the day of the offence [ 45 ] Ms.

Ameralik was several months pregnant, had recently undergone gallbladder surgery, and was recovering from the loss of a young child less than a year previously at the time of the incident on June 25, 2017. She testified that the first thing she remembers from that day is that she was sleeping when Mr. Aaluk moved her pillow with his foot, and his foot contacted her head. He said he was going to buy a TV he saw on Gjoa Haven Sell/Swap. She told him he could just go and did not have to wake her up like that. Then she lay back down until he returned. Once back, Mr.

Aaluk asked her to cook for the kids, so she got out of bed but then went to lie down on the couch for a bit longer. [ 46 ] At some point, Ms. Ameralik got up from the couch and went to the kitchen to make pizza for the kids (their four children, plus two friends of AA who were visiting). She felt Mr. Aaluk was acting weird: as she was punching the dough on the floor with DD, he asked her, with an angry face, why she was not letting DD help. This seemed odd to her, because Mr. Aaluk was right there and could see them punching the dough together. Then Ms.

Ameralik started to cry and went to the kitchen counter to spread the dough on the pizza pan. Mr. Aaluk stood beside her mumbling and calling her names, like “fucking dog” or “bitch.” She was frustrated with him and very tired of him calling her bad names, so she punched him two or three times in the head. This explains the bruises on his head that were seen by Dr. Weinberg. Ms. Ameralik agreed with the Crown that she was yelling at Mr. Aaluk, as well. The children also described yelling, mostly by Ms. Ameralik. [ 47 ] After being punched, Mr.

Aaluk went to the bathroom for about a minute during which time they continued yelling at each other. Then he came back to the kitchen yelling that she should “just fucking stab” him. Ms. Ameralik said she “had a feeling that he would … try to assault me or hurt me and the baby” by grabbing her and putting her down on the ground or hitting her. She was facing the kitchen counter, and he was only two or three feet away, so she grabbed the knife that was going to be used to cut pepperoni for the pizza, then turned around and stabbed him in the chest, although she was aiming for his arm.

She testified that she was not trying to kill Mr. Aaluk. She was just trying to stop him from hurting her and the baby. Ms. Ameralik agreed with the Crown that she was angry and frustrated but said she was also scared when she stabbed Mr. Aaluk. VIII. ANALYSIS A. Self-defence by a battered spouse [ 48 ] With an air of reality to self-defence having been conceded by the Crown and found by the Court, the Crown had the burden at trial to prove beyond a reasonable doubt that Ms. Ameralik was not acting in self-defence when she fatally stabbed Mr. Aaluk. [ 49 ] The theory of Ms.

Ameralik’s defence is that the stabbing on June 25, 2017 was the culminating act of years of intimate partner violence. This violence led to Ms. Ameralik believing she had no choice but to physically defend herself against the imminent threat posed by the deceased as he confronted her in the kitchen on that day in June. [ 50 ] I find the explanation of the self-defence provisions given by Justice Mitchell in R v Sanderson , 2019 SKQB 130 to be helpful and informative: [78] The battered spouse syndrome defence is a species of self-defence under s. 34(2) of the Criminal Code .

In its current form, s. 34 was enacted in the Citizen’s Arrest and Self-defence Act , SC 2012, c 9, and came into force on March 11, 2013. See: R v Levy , 2016 NSCA 45 at para 102 , 337 CCC (3d) 476 [ Levy ] . Its public policy objective was “to simplify the notoriously complex, and at times contradictory, provisions of the Criminal Code that defined the requirements for all forms of self-defence”. See: Levy at para 101 .

[79] Section 34(1) applies to all forms of self-defence. If there is an air of reality to self-defence, no offence is committed unless theCrown disproves at least one of the following: (1) the accused believes on reasonable grounds that force is being used or threatenedagainst a person; (2) the act that constitutes the offence is committed for the purpose of defending or protecting against that use or threat of force; and (3) the act committed is reasonable in the circumstances.

See: R v Barrett, 2019 SKCA 6 at para 26, 52 CR (7th) 244[Barrett] and Levy at para 107. [80] In order to assess the last element identified above – whether the act at issue is reasonable in the circumstances – Parliamentdirected a trier of fact to take into account the non-exclusive list of nine factors in s. 34(2). See: Levy at para 107. It is at this stage of theanalysis that the battered spouse syndrome becomes most relevant. [81] R v Lavallee, (SCC), [1990] 1 SCR 852 [Lavallee] was the first time the Supreme Court of Canada considered thebattered spouse syndrome defence.

It was elaborated on in subsequent authorities, most notably R v Malott, (SCC), [1998] 1 SCR 123. One of the more significant innovations to the self-defence analysis emerging from Lavallee was that therewas no requirement the apprehended danger must be imminent. Rather imminence was only one factor to be considered when assessingwhether an accused had a reasonable apprehension of danger, and a reasonable belief that she could not extricate herself otherwise thanby maiming or killing the aggressor.

See: R v Pétel, (SCC), [1994] 1 SCR 3 (QL) at para 22. [82] This, and other relevant considerations, are now codified in s. 34(2). As the Nova Scotia Court of Appeal elaborated in Levy, atpara 112: [112]…Importantly, an accused need not wait until he or she is actually assaulted before acting, and an accused is not by law required toretreat before acting in self-defence.

The imminence of the threat, the existence of alternative means to respond, and the actions taken bythe accused are factors that belong in the things a trier of fact is required to consider to determine if the act committed by the accusedwas reasonable in all of the circumstances; and an accused is not expected to weigh with nicety the force used in response to theperceived use or threat or force. [Emphasis added.] [83] As in any prosecution, the burden rests upon the Crown throughout. In other words, the Crown must prove beyond a reasonabledoubt that self-defence is not made out.

See, especially: R v Cinous, 2002 SCC 29 at paras 39 and 95, [2002] 2 SCR 3; Barrett at para 30; and R v Ejigu, 2012 BCSC 1674 at para 13, 98 CR (6th) 370 [Ejigu]. [84] Even if an accused’s evidence is not accepted in its entirety, the court still must acquit if the totality of the evidence raises areasonable doubt respecting his or her guilt. See: Ejigu at para 13. [51] The first requirement for self-defence is that the accused must “believe on reasonable grounds that … a threat of force is beingmade against them or another person”. I find that Ms.

Ameralik had a subjective belief based upon reasonable grounds that Mr. Aalukwas making a threat of force against her. Mr. Aaluk was angry. They were in close quarters in the kitchen. He came up close to her aftershe hit him on the head and confronted her. She testified that she was afraid he might hurt her or her unborn baby. Mr. Aaluk issignificantly taller and heavier than Ms. Ameralik. He could easily overpower her. [52] The second requirement for self-defence is that Ms. Ameralik must have committed the stabbing for the purpose of defending orprotecting herself and/or another from Mr.

Aaluk’s threat of force. Ms. Ameralik testified that she feared what Mr. Aaluk might do, thatshe thought he might assault her and hurt her or the baby, which he had already done during her current pregnancy. This is a subjectivetest, and I find that she was trying to protect herself and her baby when she stabbed Mr. Aaluk. B. Reasonableness [53] The final requirement set out in s. 34(1)(

c) is that the stabbing must be “reasonable in the circumstances”. This is the objective partof the test, and in determining reasonableness, I am directed by the Criminal Code to consider the set of nine non-exhaustive provisionsarticulated under s. 34(2):

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: (

a) the nature of the force or threat; (

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (

c) the person’s role in the incident; (

d) whether any party to the incident used or threatened to use a weapon; (

e) the size, age, gender and physical capabilities of the parties to the incident; (

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (

g) the nature and proportionality of the person’s response to the use or threat of force; and (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. [ 54 ] Paragraph (

h) is not relevant; I will consider each of the other eight paragraphs in turn. i. The nature of the force or threat [ 55 ] As noted earlier, Mr. Aaluk was significantly larger than Ms. Ameralik; he was 6’3” to her 5’1”. She testified that in the past he had put her to the ground and leaned on her, applying force which resulted in bruises and soreness. There was an incident when Ms. Ameralik had to go to the Health Centre because of serious injuries to her face, including a broken cheek bone. The incident described by Ms. Ameralik’s parents suggests that even after Ms. Ameralik suffered the facial injuries, Mr.

Aaluk remained aggressive and had to be held down by Ms. Ameralik’s father while waiting for the police to arrive. I have no doubt, based upon the history of the relationship as testified to and by the discrepancy in size between Ms. Ameralik and the deceased, that Mr. Aaluk posed an objectively significant threat to Ms. Ameralik and her unborn child at the time of the stabbing. [ 56 ] Mr. Aaluk’s statement “just fucking stab me” implies an inevitable “or else”. ii.

The extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force [ 57 ] I reiterate the substance of paragraphs 51 and 52, above. Mr. Aaluk was coming toward Ms. Ameralik in the kitchen and they were shouting at each other. I again am satisfied that the threat posed by Mr. Aaluk to Ms. Ameralik was imminent at the time of the stabbing. It is clear to me that there were no other means available to Ms. Ameralik to respond to the threat posed by Mr. Aaluk.

iii. The person’s role in the incident [ 58 ] Ms. Ameralik was frustrated and angry with Mr. Aaluk, as well as scared. A verbal altercation, initially started by the deceased in relation to Ms. Ameralik’s preparation of food and the involvement of a child in that preparation, soon escalated to Mr. Aaluk and Ms. Ameralik yelling at each other. Physical violence quickly followed. Mr. Aaluk walked away from the situation only to return moments later to confront her, yelling, “just fucking stab me”. Ms. Ameralik was not solely responsible for instigating the incident that led to the fatal stabbing. iv.

Whether any party to the incident used or threatened to use a weapon [ 59 ] Ms. Ameralik is the only party to use a weapon. I will address this issue more fully in the

section below. v. Size, age, gender, and physical capacity; the parties’ relationship and prior use or threat of force; history of the parties’ communication/interaction [ 60 ] Looking at these three factors together, Mr. Aaluk’s size and physical capabilities were imposing and more than one witness’ evidence suggested, along with Ms. Ameralik’s evidence, that he had used them during the approximately ten-year relationship between the parties to physically control and injure Ms. Ameralik. Ms.

Ameralik was in the second trimester of her sixth pregnancy in those ten years and had recently had abdominal surgery; I accept that she felt vulnerable. [ 61 ] Mr. Aaluk held a significant size and strength advantage over Ms. Ameralik, especially considering the late stage of her pregnancy. Ms. Ameralik, unarmed, would have been wholly unable to adequately defend herself and her unborn child against what she perceived to be an imminent physical attack. vi. The nature and proportionality of the person’s response to the use or threat of force [ 62 ] Mr. Aaluk advanced toward Ms.

Ameralik shouting that she should stab him, after their verbal altercation had escalated into physical violence. Perceiving an imminent threat to herself and her unborn child by a much larger Mr. Aaluk who had previously punched her in the stomach during her pregnancy, Ms. Ameralik grabbed the only weapon available to her, the sharp kitchen knife she had been using to prepare dinner and stabbed him once. Ms. Ameralik did not have to weigh her response to a nicety. Given her vulnerability, recognizing how physically outmatched she was, I am satisfied Ms.

Ameralik’s use of force was not out of proportion to the threat of violence she was experiencing at the time of the incident. C. Conclusion on self-defence [ 63 ] No one factor in the test for self-defence is determinative and the whole relationship between a couple must be considered to determine whether the accused was acting in self-defence. I am left with no doubt that Ms. Ameralik suffered significantly for years as a victim of intimate partner abuse while in a relationship with Mr. Aaluk.

Having carefully reviewed the criteria above within the context of the history of violence, I am not satisfied beyond a reasonable doubt that Ms. Ameralik’s actions were unreasonable in the circumstances. [ 64 ] I find that the Crown has not proven beyond a reasonable doubt that Ms. Ameralik did not act in self-defence. Accordingly, I find that her actions were justifiable, and I find her not guilty of manslaughter.

IX. CONCLUSION [ 65 ] This case is tragic. Children lost a father. A family lost a son. Ms. Ameralik will live with what took place on June 25, 2017 for the rest of her life. [ 66 ] This case reveals many truths that will come as no surprise to Nunavummiut, among them that the problem of intimate partner violence continues to plague Nunavut communities. In 2006, Pauktuutit wrote in its report, “National Strategy to Prevent Abuse in Inuit Communities”: Too often, services for crime victims in the North operate in isolation of each other.

Lacking a systematic and coordinated approach, efforts to prevent victimization in Inuit communities are hindered by gaps in services; inequitable distribution of resources; burnout and loss of trained staff; an absence of training and support for front-line workers; and incomplete program evaluation. [1] [ 67 ] Ms. Ameralik deserved access to the support and resources mentioned above as a person who repeatedly experienced intimate partner violence. Given the many police occurrence reports and the testimony from friends and family in this matter, it appears that both Ms. Ameralik and Mr.

Aaluk would have benefited from better access to social services and more meaningful access to justice at many points in their relationship. [ 68 ] This Court recognizes the systemic shortcomings in how justice is administered in Nunavut. We will not know how the course of this family’s history might have changed had Ms. Ameralik had the support to follow through with testifying against Mr. Aaluk in any of the trials for charges of intimate partner violence that were brought against him. We also will not know whether the criminal justice system could have helped Mr.

Aaluk change his behaviour in intimate partner relationships. [ 69 ] We do know, however, that this tragedy is not unique, and situations like it continue to play out in the Territory. The system must change to ensure, going forward, that victims of intimate partner violence are afforded the support necessary to provide evidence against the people who are causing them harm. Absent such support, the cycle of violence will continue in the Territory and undoubtedly lead to tragedies like this coming before the NCJ for adjudication. Such tragedies do not need to be inevitable.

Dated at the City of Iqaluit this 27th day of January, 2021 ___________________ Justice S. Charlesworth Nunavut Court of Justice