R. v. VanEindhoven, 2012 NUCA 05

In the Court of Appeal of Nunavut Citation: R. v. VanEindhoven, 2012 NUCA 05 Date: 20120711 Docket: 18-07-001-CAP Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - Adrian VanEindhoven Appellant _______________________________________________________ The Court: The Honourable Mr. Justice Ronald Berger The Honourable Mr. Justice Peter Costigan The Honourable Mr. Justice J.D. Bruce McDonald _______________________________________________________ Memorandum of Judgment Appeal from the Conviction and Sentence by The Honourable Mr. Justice R. Kilpatrick Dated the 11th day of January, 2007

_______________________________________________________ Memorandum of Judgment _______________________________________________________ (NOTE: This document may have been edited for publication) The Court: [ 1 ] The appellant was charged and convicted of second-degree murder in the stabbing death of his partner, Leanne Irkootee, on April 23, 2004.

The trial was conducted by Kilpatrick J. sitting without a jury in Rankin Inlet between March and October 2006. [ 2 ] For reasons largely unexplained, though a matter of great concern to this Court, the appeal did not come before a panel of this Court until February 14, 2012. It should be noted that counsel for the appellant on appeal was not trial counsel and only recently took on responsibility for prosecuting the appeal on behalf of the appellant. [ 3 ] The deceased suffered a fatal stab wound.

The appellant ran to his next door neighbour for help but, despite medical assistance, the deceased died as a result of the stab wound. The issue at trial was whether the stab wound was accidentally self-inflicted or whether the appellant had deliberately stabbed the deceased. [ 4 ] A statement of agreed facts was entered at trial in which the appellant admitted that he had been convicted of assaulting the deceased a few months before she died. [ 5 ] The appellant acknowledged that the night before her death he hit the deceased in the face because he believed that she had stolen some vodka from him.

Both were inebriated. After falling asleep, he awoke to find her lunging at him with a knife in the upstairs bedroom of their home. He caught the blade between his palms, suffering only a nick to his chest. They struggled. He testified that as she attempted to leave the bedroom, she ran into a wall, fell backwards onto the floor and, the appellant surmised, must have accidentally stabbed herself with the knife.

The appellant told his neighbour and the police the very same thing that morning. [ 6 ] In our judgment filed March 8, 2012, we allowed the appeal, quashed the conviction and ordered a new trial, indicating that reasons for judgment would follow. We did so on the basis of the erroneous admission of propensity evidence, the prejudicial effect of which outweighed its probative value. Our promised reasons follow. [ 7 ] The Crown was not content to rely upon the appellant’s acknowledgement that on October 6, 2003, he had pleaded guilty to assaulting the deceased on September 8, 2003.

The Crown instead proffered additional propensity evidence consisting, inter alia, of the viva voce testimony of Emiline Koumuk, the coordinator and a counsellor for the Pulaarvik Kablu Friendship Centre Spousal Abuse Programme. [ 8 ] In cross-examination of Ms. Koumuk, it emerged apparent that the appellant was given assurance of confidentiality regarding the Intake Questionnaire: Q. Well, first of all, I have a question, with regards to the intake, is there any issue that is discussed with the client with regards to confidentiality? A. Yes.

Q. And what do you explain to the client? A. I explain that whatever we put on the form is just for him and myself and after we – and when – and, I mean, they are kept in locked cabinets, file cabinet. (Appeal Book, Vol. 1, pp. 123-124) [ 9 ] It is understandable that the responses would be confidential. As Ms. Koumuk explained, many subjects are explored which may reveal “different types of abuses”: Q. “And the assessment, the client intake assessment record is a more, how would you describe that document? A. The intake form? Q. Yes. The intake assessment, yes. A.

I don’t know, just to get a general idea of different things that are referring to the case. Q. Okay. And I see that there are many pages. It’s a document that seems to be quite long? A. It is, yeah. Q. And do you cover areas that are different than, again, the reason for the referral? A. Yes.

There is different areas where it talks about different abuses, whether there’s spiritual, emotional or physical, financial and different abuses that are in that form where you try – well, you go through, as you go through them you discuss different types of abuses that might have been happening.” (Appeal Book, Vol. 1, p. 125) [ 10 ] Ms. Koumuk referenced the following exhibit which had been completed in 2003, and which was ruled admissible following a voir dire.

Excerpts of the admitted evidence follow: Pulaarvik Kablu Friendship Centre Spousal Abuse counselling programme intake questionnaire - the Appellant in short sentences admits alcohol and drug abuse and describes a cycle of violence with his partner.” (Appeal Digest, Vol. 2, E24): … 3. Violence in Other Relationships When was the last time you were in a fight with another man? (how often, what triggered it) 3 - 4 years ago. - what triggered it was because he was staring at my girlfriend. When I told him to stop he wouldn’t listen because he was drunk.

Have you been violent or abusive with another woman? - yes about 3 times, it happened when I would be drunk and blacked out. ... 8. Behavioural Checklist

Have you ever had trouble with: School School authorities The law or police Work Money Other relationships - with former girlfriend - Jemine In which of the following situations have you been aggressive in or with: Intimate relationships Work situations Relatives Friends/acquaintances Strangers Authority figures Drivers on the road - fighting with inmates. 9. Criminal Justice System Involvement How many times have the police been called because of a fight or argument? Two times in September 2002 and September 2003.

Have you ever been charged with assault? (record status of any current charges and previous convictions and sentences) Yes, about a year ago. … 11. Abuse inventory Have you ever Yes/No # of times in last 6 months # of times ever 1. Psychological Abuse Yes 2 times Called her names or sworn at her? Yes 2 times

Yelled or screamed at her? Yes 2 times Blamed her for things that weren’t her fault? Yes 2 or 3 times Threatened to hurt her Yes 2. Physical Abuse Pushed her? Yes 2 times Pinned her down or against the wall or bed? Don’t remember Slapped her? Don’t remember Punched or backhanded her? Yes 2 times Thrown something at her or in her direction? If yes, what? Yes Pot to cook 1 time Hurt her physically in any other way? Yes Hitting her 4. Property Abuse Punched or kicked the wall? Yes Wall Torn down curtains, pictures or decorations? Yes Damaged a door, a wall or a window?

Yes Wall Thrown, tipped over or broken furniture? Yes Ripped out or broken the telephone Yes Destroyed anything of your own when angry? Yes Tapes/furniture Been mean to a pet?

Yes Dog [11] The respondent maintains, as it did in the Court below, that in a prosecution for murder evidence of an accused’s prior abuse of thedeceased may illuminate the nature of the relationship between the principals, demonstrate animus and establish a motive for the killing:R v Chapman (2006), 204 CCC (3d) 449 (Ont CA) at para. 27, [2006] OJ No 185; R v Cudjoe, 2009 ONCA 543 at para. 64, [2009] OJNo 2761; R v Van Osselaer (2002), 2002 BCCA 464 , 167 CCC (3d) 225 (BC CA) at para. 23, leave to appeal refused, [2002]SCCA No 444 (SCC); R v Batte (2000), (ON CA), 145 CCC (3d) 449 (Ont CA) at paras. 97 and 102, 49 OR (3d)321.

The submission is that the evidence was admissible “to better understand the dynamics of [the] relationship and to place the eventsof the day Leanne Irkootee died within their domestic context.” (Respondent’s factum, para. 10) [12] At the outset of the voir dire, the Crown asserted that the impugned evidence would assist the Court in testing the respondent’scredibility during cross-examination should he testify: The relevance of the statement is, first, that the Crown would not tender it for the truth of its contents but for the purpose of using it forthe purpose of Cross-Examination should the accused testify.

Crown contends that this – the documents which contain statements madeby the accused can be used against him in the course of this trial, again, for the purpose of testing his credibility should he testify. The ulterior reason, as well, in tendering that evidence will be to establish or to show the frame of mind of the accused when the courtwill have to consider the intent of the accused at the time of the alleged offence.

So they are relevant for two aspects, one, is that it goes to eventually motive or to help the court determine what the accused knew andwhat are facts that are present at his mind at the time of the alleged offence and, secondly, to be able to use the statements of the accusedfor purposes of Cross-Examination. (Appeal Book, Vol. 1, p. 113)

[ 13 ] At trial, the defence challenged the admissibility of Ms. Koumuk’s testimony and the tendered documents on the basis that their prejudicial effect outweighed their probative value and also on the basis of the relevance of the communicated information and the submission that it was nothing more than evidence of bad character.

Trial counsel did concede that it might have been admissible in rebuttal if the appellant had placed his character in issue (which he did not). [ 14 ] Counsel for the appellant at trial unsuccessfully argued: Sir, before a voir dire proceeds, I do wish to place another objection on the record. That objection is that this portion of the Crown’s case appears to be a circuitous attempt to bring in evidence of bad character. I’m expecting that Ms. Koumuk is going to be asked to give details of discussions with the accused which place him in an unfavourable light.

So, there’s the Crown’s opening witness giving evidence about events four or five months before the date under consideration poisoning the well and putting in Your Honour’s mind ideas or attitudes about Mr. VanEindhoven that really may have little or nothing to do with the person that he was on April 23rd. That’s the additional concern. (Appeal Book, Vol. 1, p. 115) [ 15 ] The trial judge was satisfied that the impugned evidence was both material and probative of a: […] hostile intent or animus on the part of Mr. VanEindhoven towards his deceased spouse.

It is admissible to assist the trier of fact in understanding why Mr. VanEindhoven may have done what he is alleged to have done in the indictment. This propensity evidence is also admissible on the issue of whether the fatal wound was self-inflicted by the deceased or accidental, or whether it was in fact done deliberately by the accused in anger. [emphasis added] (Appeal Digest, Vol. 2, F2 at para. 152) [ 16 ] The trial judge held that the Crown was entitled to cross-examine the appellant on any information contained in the admitted documents.

The Crown did just that, attacking the appellant’s credibility on the strength of historical events revealed in the impugned documents which, the Crown maintained, exposed the appellant as a person unworthy of belief (see paras. 19 and 20 below). [ 17 ] Propensity evidence can poison the mind of a trier of fact and make adjudicative objectivity much more difficult to achieve. It is trite law confirmed by the trial judge that detailed evidence of other acts of misconduct by a person accused of a crime 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.

Once admitted, such propensity evidence may taint the reasoning process even where the trier of fact has acknowledged the danger. [ 18 ] For that reason, the burden is on the Crown to establish that the tendered propensity evidence is relevant to a specific issue before the Court and that the probative value of the evidence exceeds its anticipated prejudicial effect. [ 19 ] The appellant submits that his participation in the spousal abuse programme following his guilty plea in 2003, contained much more that what can be fairly described as contextual evidence of the relationship between the parties.

The records were largely comprised of handwritten or typed notes of lengthy interviews of the appellant regarding his history of drinking, drug abuse, his experiences growing up, his employment history, his prior history of aggression or violence with other men, other partners, and even animals. These records were used in cross-examining the appellant and were relied upon during the Crown’s closing arguments. The cross-examination included the following excerpts (Appeal Book, Vol. 2, pp. 646 – 650): Q If I can have a look at Exhibit B of that list. This is the Client Intake Assessment record.

Could you look at that, sir. It’s also dated September 19th, 2003. Right, sir? A. November 19th. Q. Sorry, November 19th, 2003? A. 2004.

… Q. And it has somebody else’s handwriting on it, but it would basically be the answers you gave. Right, sir? A. Yes. Q. If you go to question five of that form, it says in there, I haven’t drunk since September. Were you telling the truth at that time? A. Question five asks tell me what happened. Q. Question one. Question five, right here, substance abuse. Do you drink? The question is do you drink and your answer is yes, but I haven’t drunk since September. Is that correct? A. Yeah. Q. Now, were you telling the truth when you said that? A. Yeah. Q. Yes? A. (Witness nods head). Q.

Because my understanding from what I heard you say yesterday was that you never described any period of time when you quit drinking. You said you’re an alcoholic and you’ve been drinking non-stop. A. Since September that year I drank four times. … Q. Once you finished filling out that form then you started drinking? A. Not until Christmas. Q. Sorry, Okay.

And, in fact, in that same part, part five, you recognize, if I can, right here, the question is, ‘What percentage of violent incidents were associated with use of alcohol or drugs?’ And your response is, ‘I think a hundred-percent factor for my actions, and I have not been drinking for a couple of weeks.’ Is that your answer? A. I don’t recall saying that. Q. Okay. Well, it’s written there. Do you have any reason to believe you didn’t say it? A. Sometimes when I wake up from my black-out’s nothing would have happened. Q. Okay.

But would you agree that every time you have gotten into a fight or assaulted someone, alcohol or drugs was a contributing factor? A. Most of the time when I would wake up from my black-out’s when I had bruises on me it would be from other people fighting me. Q. So, you still agree that alcohol played a role in those incidents? A. Yes.

Q. Would you accept that alcohol has played a role in every violent incident you’ve been involved in? A. Yeah. Q. There have been no exceptions? A. Not that I recall. Q. So – and this is something you’d agree that you recognize. Right? A. Yeah. Q. Okay. Now, if I can take you to question nine on that form. At the bottom of question nine, it’s page eight of twelve of this form there’s a question. ‘Is there a current restraining or no contact order?’ In brackets it says ‘probe for compliance.’ Do you see that, sir? A. Yes. Q. Can you read what the answer is given there? A. No. Q.

So you weren’t telling the truth to the spousal abuse program, were you, sir? A. I’m pretty sure when she asked me that question I said, yes, there is. I don’t know how no was written on here. [ 20 ] In closing argument, the Crown made express reference to the records maintained by the spousal abuse staff as evidence that : “In his Cross-Examination he explained some of the contradictions by arguing that other people were either lying or had misrepresented his words.” (Appeal Book, p. 847) [ 21 ] Crown counsel argued: He also lied to the spousal abuse counsellors about being bound by an Undertaking.

He said he had none and when he was confronted with that he said his answer was changed by the spousal abuse staff after he gave this answer. So, again, we see a pattern that is developing. (Appeal Book, p 848) [ 22 ] The trial judge correctly stated the test for admission: In this voir dire, the Crown has the burden of establishing, on a 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. (Appeal Digest, F2, at paras. 110) [ 23 ] The thrust of the appellant’s submission, however, is that the trial judge erred in the application of that test. The appellant notes that his previous conviction for assaulting the deceased in September 2003, was already before the Court. The admissions made placed the relationship within its context at the time of the offence and established that the appellant had previously visited physical violence upon the deceased.

The appellant submits that “[t]he additional probative value of these records to a relevant issue was never stated. They did not add to an understanding of the context of the relationship, they simply added to the evidence of bad character.” (Appellant’s factum, para. 67) Exclusion of this evidence would have caused neither an incomplete record nor a misleading impression.

[24] In R v Handy, 2002 SCC 56 , [2002] 2 SCR 908 at para. 74, [2002] SCJ No 57 [Handy], Binnie J. explained: “... If the issue has ceased to be in dispute, as for example when the fact is admitted by the accused, then the evidence is irrelevantand it must be excluded.” [25] We agree with the appellant’s submission that the trial judge failed to identify or acknowledge the additional prejudicial effect ofthis evidence. The principled approach in Handy mandates reasoning that expressly assesses prejudicial effect.

The disputed recordsmerely amounted to additional evidence of “bad character” and, in our view, were inadmissible under Handy. See also R v B(CR), (SCC), [1990] 1 SCR 717, [1990] SC J No 31. [26] We also agree with the appellant that the trial judge never engaged in the weighing process mandated by Handy. While he did statethat the evidence was “probative” to the issues of hostile intent, deliberate act, and context, the degree to which it was probative wasnever compared to its substantial prejudice. In our view, that is also an error that warrants appellate interference.

See also R v Villeda,2010 ABCA 351, 493 AR 279 at para. 26 [Villeda], in which the Court of Appeal stated: The trial judge did not expressly weigh the probative value of the evidence against its prejudicial effect. The Crown submits that thisweighing is implicit in her conclusion that she was not inferring from the evidence that the appellant was a person whose character wassuch that he was more likely to have committed the offence.

In our view, however, the trial judge’s statement to this effect is merely arestatement of the general exclusionary rule - that character evidence cannot be used simply to create ‘moral prejudice.’ It does notamount to a balancing of probative value against prejudicial effect. [27] In a nutshell, as the Court made clear in Villeda, a statement simply stating a purpose for the admission of the evidence does not byitself satisfy the obligation of a trial judge to determine not only the relevance of the evidence of bad character to an issue at trial but alsoto expressly weigh the probative value against its prejudicial effect “simply stating a purpose for the admission of the evidence of prioralleged assaults does not, by itself, provide justification for its admission. … The trial judge’s failure to consider and apply the correctlegal test is an error to which principles of deference do not apply.”(Villeda at paras. 27 and 30) [28] We would add only that the calling of evidence by the accused at trial of a forensic psychiatrist who opined on the disputedevidence does not render harmless the admission of that evidence by the Crown as part of its case.

After all, once the trial judge had,over the objection of Defence counsel, declared the evidence admissible, counsel for the appellant at trial had no alternative but to callthe psychiatrist and put the best light on the impugned bad character evidence. [29] The curative proviso does not, in our opinion, assist the respondent. It must be remembered that the trial judge took great pains tocarefully assess the relevance and probative value of each piece of evidence proffered by the Crown, much of which was found to beinadmissible.

On occasion, he would declare one paragraph of a tendered document admissible but not others. It follows that in findingthe impugned evidence of bad character relevant and probative, the trial judge must surely have relied upon it when expressly calledupon to do so by the Crown.

We cannot, of course, read the trial judge’s mind, but on this record we cannot be sure that that impugnedevidence did not play a role in assessing the credibility of the appellant’s contention that accident was the cause of death. [30] In our opinion, the impugned evidentiary ruling was a serious error that prejudiced the appellant and could well have affected theverdict. In R v Charlebois, 2000 SCC 53 , [2000] 2 SCR 674 at para. 11, [2000] SC J No 55, the Supreme Court of Canada, perBastarache J., made clear that: The proper application of s. 686(1)(b)(iii) was recently addressed in R. v.

Brooks, [2000] 1 S.C.R. 237, 2000 SCC 11. Writing for thedissent, Major J. adopted his statement in R. v. Bevan, (SCC), [1993] 2 S.C.R. 599, which precisely outlines thethreshold for applying the proviso. Major J. confirmed at para. 104 that the task of the appellate court is to determine whether there is any reasonable possibility that the verdict would have been different had the error at issue not been made.

Implicit in my reasons in Brooks is my acceptance of his statement as a proper explanation of the law. As conceded by the Crown, theproviso should only be applied where the evidence is so overwhelming that a trier of fact would inevitably convict. In such circumstances, depriving the accused of a propertrial is justified on the ground that the deprivation is minimal when the invariable result would be another conviction. (R. v. S. (P.L.), (SCC), [1991] 1 S.C.R. 909, at p. 916) [31] In R. v.

John, (SCC), [1985] 2 SCR 476, [1985] SC J No 72, the Supreme Court of Canada confirmed that s.613(1)(b)(iii), now s. 686(1)(b)(iii), cannot be invoked by an appellate court with anything approaching reality to retry a case to assessthe worth of residual evidence after improperly adduced evidence has been extracted. An appeal court does not have the advantage ofseeing the witnesses and was never intended to replace the trier of fact.

Consequently, in such a situation, s. 686(1)(b)(iii) should not beinvoked, but rather a new trial ordered. [32] In our opinion, the evidence in the case at bar is not so overwhelming that a trier of fact would inevitably convict. A proper trialuntainted by inadmissible bad character evidence is required. [33] For these reasons, we allowed the appeal, quashed the conviction and ordered a new trial. Appeal heard on February 14, 2012 Memorandum filed at Iqaluit, Nunavut this 11th day of July, 2012 Berger J.A. As authorized by: Costigan J.A. As authorized by: McDonald J.A.

Appearances: M.E. Bryant J. Gevikoglu for the Respondent L.K. Stevens, Q.C. for the Appellant