R. v. KAYAITOK, 2013 NUCJ 16

NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. KAYAITOK, 2013 NUCJ 16 Date of Judgment (YMD): 20130823 File Number: 24-08-08 Registry: Iqaluit Prosecutor: HER MAJESTY THE QUEEN -and- Accused: BRUCE KAYAITOK ________________________________________________________________________ Before: The Honourable Mr.

Justice Johnson Crown Counsel: Paul Bychok and Amy Porteous Defence Counsel: Malcolm Kempt and Clare Henderson Location Heard: Iqaluit, Nunavut Date Heard: April 29, 2013 Matters: Criminal Code ss. 222 , 229 , 234 , 235(1) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) I. INTRODUCTION [ 1 ] The accused is charged with the second-degree murder of his common-law spouse Belinda Tootiak [Belinda] on June 13, 2008 in the community of Kugaaruk. [ 2 ] On April 29, 2013 the accused entered a guilty plea to manslaughter and a not guilty plea to second-degree murder.

However, the Crown was not content with the plea to manslaughter and seeks a conviction for second-degree murder. [ 3 ] At the opening of the trial the Crown with the consent of the accused introduced 14 exhibits including admissions made under

section 655 of the Criminal Code, RSC 1985, c C-46 [Criminal Code]. [ 4 ] Defence counsel also agreed that the evidence given at the voir dire that I ruled admissible could be applied as evidence at the trial without the necessity of recalling the witnesses. [ 5 ] The Crown closed its case and the accused elected to not give evidence. Both parties filed written submissions and judgment was reserved. II. EVIDENCE [ 6 ] The accused admits that on June 13, 2008 he was in a common law relationship with the deceased victim Belinda at Kugaaruk, Nunavut.

The relationship had lasted, on and off, for 14 years. [ 7 ] On the morning of Friday June 13, 2008, the accused, Belinda, and their two young sons were present at their home. Bruce Jr. was five years old and Dawson was three years old. [ 8 ] The accused admits that he unlawfully assaulted Belinda during an argument that morning. At some point during the assault the accused stabbed Belinda twice in the abdomen with a broken mop handle.

The accused admits that Belinda died of exsanguination as a direct result of the injuries she sustained during the assault. [ 9 ] The accused admits into evidence the statements of the following witnesses: (

a) Christopher Amautinuar (

b) Jeffrey Ittinangnak (

c) Bertha Byrne (

d) Erin Ferguson (

e) Tony Immingark

(

f) Leona Krejunark (

g) Brenda Quaqjuaq (

h) Charmaine Saunders (

i) Anna Tootiak (

j) Nevee Tootiak [10] The accused admits, unchallenged, the contents of the forensic reports authored by Florence Celestin, S/Sgt. Geoff Ellis, and Dr.Michael Pollanen. [11] Finally the accused admits the medical records of Belinda; Health Centre photographs taken of the victim by Cst. Ryan Snodgrass;autopsy photographs; and a scene plan, scene video, and investigative notes prepared by Sgt. Mary Lane. III.

ISSUE [12] Since the accused admitted the actus reus for homicide in admitting that he caused the death of Belinda the sole issue in this trial isdid accused have the mens rea for second degree murder? [13] To answer the main issue I must consider and resolve three sub-issues as follows: (

a) Is the accused’s post offence conduct probative where he has admitted that he committed manslaughter? (

b) Should I draw the common sense inferences relied on by the Crown about the nature and timing of the injuries that killed BelindaTootiak? (

c) If I rely on the propensity evidence I ruled admissible at the voir dire, will I be drawing the forbidden inference that because theaccused is a bad character and was violent in the past toward the deceased he must have intended to kill her? IV. LAW. [14]

Section 229 of the Criminal Code defines murder: Culpable homicide is murder (

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

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

Section 229 (a)(i) [15] As held in R v Seymour, (SCC), [1996] 2 SCR 252, 106 CCC (3d) 520, in deciding whether the accused intendedor meant to cause the death of Belinda a judge or jury may as a matter of common sense draw an inference that a sane and sober personintends the natural and probable consequences of his or her voluntary actions. [16] In R v Buzzanga and Durocher, (ON CA), [1979] 2 OR (2d) 705, 49 CCC (2d) 369, the Ontario Court of Appealheld that what the accused intended or foresaw must be determined on a consideration of all the circumstances as well as from his ownevidence, if he testifies as to what his state of mind or intention was.

Since people are usually able to foresee the consequences of theiracts, if an accused does

an act likely to produce certain conse-quences, in general, it is reasonable to assume that the accused alsoforesaw the probable consequences of his act. Thus, if he nevertheless acted so as to produce those consequences, it is reasonable toassume that he intended them. The greater the likelihood of the relevant consequences ensuing from the accused’s act, the easier it is todraw the inference that he intended those consequences.

However, where doubt exists as to the actual intention of the accused thepurpose of this process is to determine what the particular accused intended, not to fix him with the intention that a reasonable personmight be assumed to have in the circumstances. [17] In R v Walle, 2012 SCC 41, 2 SCR 438 at paras [Walle], Moldaver J. noted the “common sense inference” serves a useful purposeby providing a jury with a marker to measure the rather amorphous concept of intent within the following parameters: 65 In the end, what is critical is that the jury be made to understand, in clear terms, that in assessing the specific intent required formurder, it should consider the whole of the evidence that could realistically bear on the accused's mental state at the time of the allegedoffence.

The trial judge should alert the jury to the pertinent evidence.

How detailed that recitation should be will generally be a matterfor the trial judge, in the exercise of his or her discretion. 66 After the jurors have been alerted to the pertinent evidence, they should be told that if, after considering the whole of the evidence,they believe or have a reasonable doubt that the accused did not have one or the other of the requisite intents for murder at the time theoffence was committed, then they must acquit the accused of murder and return a verdict of manslaughter. 67 If, however, there is no evidence that could realistically impact on whether the accused had the requisite mental state at the time ofthe offence, or if the pertinent evidence does not leave the jury in a state of reasonable doubt about the accused's intent, then the jurymay properly resort to the common sense inference in deciding whether intent has been proved.

B.

Section 229 (a)(ii) [18] As discussed by Watt J. in R v Moo, 2009 ONCA 645, 247 CCC (3d) 34, [Moo], a trier of fact may also use the common senseinference in assessing whether an accused intended to cause bodily harm which he knew was likely to cause death and was recklesswhether or not death ensued. [19] Watt J. summarized the governing principles as follows: 45 The fault element in the definition of murder in s. 229(a)(ii) consists of three components: Intention (to cause bodily harm);Knowledge (that the bodily harm will probably be fatal); Recklessness (whether the victim dies or lives); Subjective foresight of death is a constitutional requirement for the crime of murder: R. v.

Martineau, (SCC), [1990] 2S.C.R. 633, at p. 646. 46 The most prominent among the three components of the fault element in s. 229(a)(ii) is the intention to cause bodily harm of such agrave and serious nature that the person inflicting the harm, the accused, knows that the harm is likely to kill the victim. Thiscombination of intention and subjective foresight of the likelihood of death renders the recklessness component in s. 229(a)(ii) almost anafterthought: R. v.

Nygaard, (SCC), [1989] 2 S.C.R. 1074, at pp. 1087-1088. 47 The recklessness component of the fault element in s. 229(a)(ii) does not exist in a vacuum as the only mental or fault element, ratherworks together with the intentional infliction of horrible bodily harm: Nygaard, at p. 1088. The variation in the degree of culpability asbetween the fault elements of ss. 229(a)(

i) and 229(a)(ii) is too slight to warrant distinction: Nygaard, at pp. 1088-1089. 48 The requirement in s. 229(a)(ii) that the fatal assault be carried out in a reckless way, in other words by heedlessly proceeding with thedeadly assault well-knowing the obvious risks, adds nothing to the vital element of the intent to cause bodily harm that the killer knowsis likely to cause death and yet persists in the assault: Nygaard, at p. 1088.

Anyone who causes bodily harm that she or he knows islikely to cause death must, in those circumstances, have a deliberate disregard for the fatal consequences that she or he knows are likelyto happen: R. v. Cooper, (SCC), [1993] 1 S.C.R. 146 (S.C.C), at pp. 154-155. In other words, such a person must,perforce, be reckless whether the victim lives or dies: Cooper, at p. 155. C. Background and Context Evidence [20] At paragraph 98 of Moo, Watt J. also noted that in domestic homicide prosecutions, evidence is frequently admitted to understandthe nature of the relationship between the accused and the deceased.

He stated: In prosecutions for domestic homicide, evidence is frequently admitted to elucidate the nature of the relationship between the accusedand the deceased. This evidence, which often discloses misconduct other than that charged, not only demonstrates the nature of therelationship between the parties, but also may afford evidence of motive and animus relevant to establish the identity of the deceased'skiller and the state of mind with which the killing was done: R. v. Chapman (2006), 204 C.C.C. (3d) 449 (Ont. C.A.), at para. 27; R. v.Cudjoe 2009 ONCA 543, (Ont. C.A.) at para. 64; R. v.

Van Osselaer (2002), 2002 BCCA 464 , 167 C.C.C. (3d) 225 (B.C.C.A.), at para. 23, leave to appeal refused, 313 N.R. 199 (note) (S.C.C.). [21] In the R. v. Kayaitok, 2013 NUCJ 2 , 2013 N.U.C.J 02, [2013] Nu.J. No. 2 [Kayaitok], judgment I ruled the Crown couldintroduce context evidence from witnesses about incidents in the relationship and medical evidence for the period September 15, 2007, toMay 10, 2008, because the evidence could be relevant to the determination of the issue of whether the accused had the intent requiredunder

section 229 (

b) of the Criminal Code. At paragraph 98 of Kayaitok, I misquoted the proper

section of the Criminal Code andintended to refer to

section 229 (a) (ii). However, as noted by Watt J. in Moo, the variation in the degree of culpability as between thefault elements of ss. 229(a)(

i) and 229(a)(ii) is too slight to warrant distinction. D. Post Offence Conduct [22] The Ontario Court of Appeal reviewed the principles of this form of circumstantial evidence in R. v. Cudjoe, 2009 ONCA 543, 251OAC 163 at [Cudjoe], where Watt J. stated: 78 Evidence of after-the-fact conduct is no different than any other circumstantial evidence. The inferences drawn from it must bereasonable, not speculative. They must be rooted in human experience and common sense. There is no fixed regime of inferences.

Whatmay be inferred is case-specific, a function of several factors, including but not only: i. the nature of the conduct; ii. the facts sought to be inferred from the conduct; iii. the positions of the parties; and iv. the totality of the evidence. R. v. Figueroa (2008), 2008 ONCA 106 , 232 C.C.C. (3d) 51 (Ont. C.A.), at paras. 33 and 35. 79 It follows from the situation-specific nature of the process of drawing inferences that no prefabricated rule stamps certain kinds ofafter-the-fact conduct as always or never relevant to a particular fact in issue: Figueroa, at para. 33; R. v.

White, (SCC),[1998] 2 S.C.R. 72 (S.C.C), at paras. 19-22; R. v. Peavoy (1997), (ON CA), 34 O.R. (3d) 620 (Ont. C.A.), at pp. 629-631. 80 In some instances, evidence of after-the-fact conduct may be relevant to establish that an accused's conduct was culpable rather thannon-culpable, or to rebut a claim of a compromised mental state: Peavoy at pp. 629-631; R. v. Azzam (2008), 2008 ONCA 467 ,

91 O.R. (3d) 335 (Ont. C.A.), at para. 48; R. v. Walent, 2007 ONCA 871, at paras. 10-11; R. v. Fraser (2001), (ONCA), 56 O.R. (3d) 161 (Ont. C.A.), at para. 17; R. v. Schell (2000), (ON CA), 148 C.C.C. (3d) 219 (Ont. C.A.), atparas. 40-41; R. v. Younger (2004) 2004 MBCA 113 , 186 C.C.C. (3d) 454 (Man. C.A.), at paras. 51-52. 81 Evidence of after-the-fact conduct is typical of many items of evidence adduced in a criminal trial: it is evidence of limitedadmissibility. The trier of fact may use this evidence for one or more purposes but not for another or others.

It follows that itsintroduction imposes on the trial judge in a jury trial the obligation to explain both the permitted and prohibited use of the evidence:Figueroa at paras. 35 and 36; White, at para. 28; R. v. Rodrigue (2007), 2007 YKCA 9 , 223 C.C.C. (3d) 53 (Y.T.

C.A.), atpara. 42. [23] While this form of evidence is of limited admissibility Watt J. further noted that it was highly relevant to the issue of capacity toform a specific intent when he stated in Cudjoe: 89 After identifying the evidence about the removal of the knife as evidence of after-the-fact conduct, thus subject to a specificinstruction, the trial judge told the jurors about the prohibited and permitted use of the evidence.

Since the evidence was equallyconsistent with the appellant's crime being manslaughter or second degree murder, the jurors were not entitled to use the evidence "todraw an inference of guilt towards Randulph Cudjoe".

On the other hand, the jurors could use the evidence to rebut the appellant's claimthat he did not have the state of mind required to make his unlawful killing of the deceased murder, provided they were satisfied that theconduct demonstrated some cognitive functioning and purposeful conduct inconsistent with the claimed absence of intent. 90 The trial judge's instructions may seem somewhat self-contradictory.

In essence, the jurors were told that, although they could not usethe after-the-fact conduct evidence to determine the level of culpability, they could use it to rebut the appellant's claim that hisculpability was reduced because of his compromised mental state. To some, at least, perhaps many, evidence that can be used to rebut aclaim of reduced culpability is used to determine the level of culpability. 91 It seems to me at least that the authorities that discuss the relationship between evidence of after-the-fact conduct and level ofculpability are in a less than satisfactory state and not easily reconcilable.

That said, as the authorities do establish, there are cases inwhich evidence of after-the-fact conduct can be used in determining the level of culpability, whether as positive evidence of a particularmental state (like planning and deliberation), or in rebuttal of a claim of a compromised mental state (like one befuddled by alcoholand/or drugs). 92 In the current state of the law, however, I am not prepared to say that the instructions given reflect prejudicial error.

It is difficult togainsay the relevance of evidence of removal of the weapon from the scene of the killing as proof of a functioning mind, thus intentionalconduct. [24] In R v Jaw, 2009 SCC 42, 3 SCR 26 [Jaw], released after Cudjoe, LeBel J. noted that while post offence conduct cannot usuallyserve on its own as a basis for inferring the specific degree of culpability of an accused person who has admitted committing an offenceit can be used to impugn the person’s credibility and to discredit a defence that relates to the person’s state of mind at the time of theoffence. 39 In sum, Vertes J.'s reference to the appellant's post-offence conduct in his charge to the jury is not an error capable of affecting thelegality of the verdict.

In fact, both the Crown and the trial judge could be said to have underestimated, to the appellant's advantage, thesignificance of the appellant's actions following the shooting. Vertes J. failed to give full effect in his charge to the Crown's argumentthat the appellant's actions -- all revolving around the theatrics of a suicide attempt -- revealed a lack of sincerity and credibility that thejury could take into account when assessing the veracity of the appellant's claim to have been so badly affected by the pepper spray thathe could not remember the events leading up to the shooting.

It was entirely open to the Crown to engage in this line of reasoning at trial.While post-offence conduct cannot usually serve on its own as a basis for inferring the specific degree of culpability of an accusedperson who has admitted committing an offence (R. v. Arcangioli, (SCC), [1994] 1 S.C.R. 129, at p. 145; R. v.Marinaro, (SCC), [1996] 1 S.C.R. 462; R. v. Peavoy (1997), (ON CA), 34 O.R. (3d) 620 (C.A.), atp. 631), it can be used, more generally, to impugn the accused person's credibility (R. v.

White, (SCC), [1998] 2 S.C.R.72, at para. 26). 40 Post-offence conduct may also be used to discredit a defence that relates to the accused person's state of mind at the time of theoffence and that is therefore relevant to his or her ability to form the requisite intent for the offence, such as intoxication (R. v. Pharr,2007 ONCA 551, 227 O.A.C. 112, at paras. 8-15; Peavoy, at pp. 630-31) or the "not criminally responsible" defence under s. 16 (R. v.Jacquard, (SCC), [1997] 1 S.C.R. 314, at paras. 42-53).

In the case at bar, the Crown could have pursued the argumentthat the appellant's sense of awareness immediately after the shooting was relevant circumstantial evidence that he had the requisiteintent, since it belied his claim to have been completely disoriented by the pepper spray. If the Crown had done so, then the jury shouldhave been instructed on the limited probative value of the appellant's post-offence conduct. However, the Crown did not make thisargument at trial, and the trial judge did not allude to it in his charge to the jury.

There is obviously no need for a judge to include alimiting instruction pertaining to an issue that did not even arise in the case.

This would have unnecessarily confused the jury and mighthave amounted to an error in its own right. [25] In R v Angelis, 2013 ONCA 70, [2013] OJ No 439, [Angelis], Laskin J. noted that post offence conduct rarely has probative valueon the accused’s state of mind when the accused admits the actus reus of the offence. 52 However, evidence of post-offence conduct may be susceptible to jury misuse, especially when, as in this case, the accused hasadmitted to committing the actus reus of an offence and the Crown is relying on the post-offence conduct to demonstrate a specific levelof intent.

Although this evidence will often be prejudicial to the accused, it will rarely have any significant probative value going to theaccused's state of mind during the commission of the criminal act. That people will generally behave one way after they kill someonepurposefully and another way after they kill someone accidentally is often a dubious assumption. 53 Therefore, in a long line of cases, both the Supreme Court of Canada and various courts of appeal, including this court, have held thatan accused's post-offence conduct may be probative of an accused's culpability, but not of the level of that culpability.

These courts have

so held because the accused's post-offence conduct is as consistent with an inference that the accused committed manslaughter as it iswith an inference that the accused had the intent for murder. Where self-defence is raised as a defence, an accused's post-offence conductis circumstantial evidence from which a jury can infer that the accused committed a culpable act, and thus did not act in self-defence.But, ordinarily, trial judges have been obliged to instruct juries that post-offence conduct evidence cannot be used to infer that theaccused committed murder rather than manslaughter: see R. v.

Arcangioli, (SCC), [1994] 1 S.C.R. 129, at pp. 145-146;R. v. Marinaro, (SCC), [1996] 1 S.C.R. 462, adopting the dissenting reasons in (1994), (ON CA),95 C.C.C. (3d) 74 (Ont. C.A.); R. v. Peavoy, at para. 34; R. v. White (1998), (SCC), [1998] 2 S.C.R. 72, at p. 89; R. v.Swanson, 2002 BCCA 528, 168 C.C.C. (3d) 1, at para. 18; R. v. Rodrigue, 2007 YKCA 9, 223 C.C.C. (3d) 53, at paras. 47-49; R. v.Figueroa, 2008 ONCA 106, 232 C.C.C. (3d) 51, at paras. 35-37. V. ARGUMENTS AND ANALYSIS A. General Overview of Arguments (

i) Crown [26] The Crown argues that the evidence proves that the accused possessed the requisite mens rea for either

section 229(a)(

i) or (a)(ii) ifthis court draws a number of common sense inferences. [27] On

section 229(a)(

i) the Crown relies on the accused’s utterances and recorded statements, the photographs, the post mortemexamination report, the forensic reports, Mary Lane’s report and Belinda’s medical records to argue that his post offence conductprovides the requisite “cognitive functioning and purposeful conduct” described by Watt J. at paragraph 89 of Cudjoe to constitute thespecific intent to commit murder. [28] The propensity evidence about the accused derived from witness statements for the period September 15, 2007, to June 13, 2008,supports the intent revealed by the accused’s post offence conduct. [29] In the alternative the Crown argues that the evidence tendered on

section 229(a)(

i) also satisfies

section 229(a)(ii) because theaccused, at a minimum, intended to inflict serious bodily harm to Belinda. The accused knew that Belinda’s abdominal injuries wouldlikely cause her death and on the most mitigating

interpretation of the evidence he was reckless whether she lived or died. [30] In the event I conclude that I am legally unable to rely on the propensity evidence, the Crown argues that the accused could beconvicted under either

section without it. (ii) Accused [31] The accused argues that the evidence relied on by the Crown does not meet the burden of proof because the post offence conduct ofthe accused has limited probative value where the accused has admitted to committing the actus reus for manslaughter. [32] The accused further argues that this Court should not apply the common sense inference about the location of the wound because itis pure speculation in the absence of expert evidence. [33] Finally, the accused argues that if this Court relies on the propensity evidence tendered by the Crown it will be drawing theforbidden inference that because the accused is a bad character and was violent in the past toward the deceased he must have intended tokill her.

B. Is the accused’s post offence conduct probative where he has admitted that he committed manslaughter? (

i) Crown argument [34] In applying the general principles on post offence conduct set out in paragraph 78 of Cudjoe, the Crown distinguishes between theactivities of the accused in the residence immediately after he stabbed Belinda Tootiak and his actions in taking her to the Health Centre. [35] In arguing that the post offence evidence is highly relevant to the issue of capacity to form a specific intent the Crown emphasizesWatt J.’s comments at paragraphs 89, 91, and 92 of Cudjoe as follows: provided they were satisfied that the conduct demonstrated some cognitive functioning and purposeful conduct inconsistent with theclaimed absence of intent. . . . . . . as the authorities do establish, there are cases in which evidence of after-the-fact conduct can be used in determining the level ofculpability, whether as positive evidence of a particular mental state (like planning and deliberation), or in rebuttal of a claim of acompromised mental state. . . . . .

It is difficult to gainsay the relevance of evidence of removal of the weapon from the scene of the killing as proof of a functioningmind, thus intentional conduct. (ii) Defence argument [36] Among the post offence conduct of the accused relied on by the Crown was that he attempted to clean up the house after thestabbing and then brought Belinda to the Health Centre.

The Crown also relies on statements the accused made to the police and nursesindicating that the stabbing was an accident. [37] Since the accused has now admitted that he committed the actus reus of the offence of assault with a weapon and, therefore,

manslaughter the post offence conduct is not helpful. [38] Relying on Laskin J.’s statement above from Angelis, the accused argues that the words below, in paragraphs 52 and 53 of Angelis,support his argument that his post offence conduct is not relevant because he admitted that he committed manslaughter. …Although this evidence will often be prejudicial to the accused, it will rarely have any significant probative value going to theaccused's state of mind during the commission of the criminal act. . . …These courts have so held because the accused's post-offence conduct is as consistent with an inference that the accused committedmanslaughter as it is with an inference that the accused had the intent for murder. [39] The accused notes that part of the Crown’s case is evidence that the accused assaulted the deceased on prior occasions and cleanedup after the fact.

As a result it is possible to draw other inferences from his conduct and the evidence cannot provide any insight on theissue of specific intent. [40] In reply to the Crown’s written submissions, the accused argues that Cudjoe is distinguishable because he has not raised thedefences of provocation or intoxication. The only defence raised is that there is no evidence of specific intent for murder.

Any evidenceof post offence conduct is unhelpful as the behavior can be used to infer either manslaughter or murder. (iii) Analysis [41] In Cudjoe, Jaw, Angelis, and all the cases referred to in those cases the courts were dealing with jury charges where there is asignificant risk of jury error in interpreting and applying post- offence conduct evidence.

As stated by Major J. in R v White (SCC), [1998] 2 SCR 72, [1998] SCJ No 57 [White]: 22 It has been recognized, however, that when evidence of post-offence conduct is introduced to support an inference of consciousness ofguilt it is highly ambiguous and susceptible to jury error. As this Court observed in Arcangioli, the danger exists that a jury may fail totake account of alternative explanations for the accused's behaviour, and may mistakenly leap from such evidence to a conclusion ofguilt.

In particular, a jury might impute a guilty conscience to an accused who has fled or lied for an entirely innocent reason, such aspanic, embarrassment or fear of false accusation. Alternatively, the jury might determine that the conduct of the accused arose from afeeling of guilt, but might fail to consider whether that guilt relates specifically to the crime at issue, rather than to some other culpableact. [42] Major J. then described the two legal doctrines that have developed in response to these concerns. 23 Two legal doctrines have arisen in response to these concerns.

As a preliminary matter, this Court held in Arcangioli that a juryshould not be permitted to consider evidence of post-offence conduct when the accused has admitted culpability for another offence andthe evidence cannot logically support an inference of guilt with respect to one crime rather than the other. That rule is essentially a matterof relevance and will usually apply in narrow circumstances.

More generally, this Court has also held that when evidence of post-offenceconduct is put to the jury, the jury should be "properly instructed" to ensure that the evidence is not misused: Arcangioli, at p. 143; R vGudmondson (1933), (SCC), 60 C.C.C. 332 (S.C.C.), at pp. 332-33.

The content of such an instruction, particularly theappropriate standard of proof, has been the subject of ongoing controversy in the Courts of Appeal and is addressed below. [43] Although in Cudjoe Watt J. recognized that the trial judge’s instruction might seem contradictory, he denied this ground of appealbecause there were cases where post-offence conduct could be used in determining the level of culpability. He noted that the evidencecould be used as positive evidence of a particular mental state or to rebut a claim of a compromised mental state.

It appears he felt thelatter situation applied because, he noted, at paragraph 75, that during the trial the accused took the position that his intoxication affectedhis state of mind. In reviewing the evidence of the accused’s consumption of alcohol, at paragraphs 52 to 54, Watt J. noted that theaccused admitted he felt the effect of three or four shots of rum and three beers but was not drunk.

He also appeared sober to one civilianwitness who knew his drinking habits and one police officer who was also a qualified breathalyzer technician. [44] In Jaw, Lebel J. noted that post-offence conduct may also be used to discredit a defence such as intoxication or being “not criminallyresponsible” that relates to the accused person's state of mind at the time of the offence and is therefore relevant to his or her ability toform the requisite intent for the offence.

He opined that the Crown could have pursued an argument to the trial judge that the jury shouldbe instructed to consider the accused’s sense of awareness after the shooting since it contradicted his evidence that he had beencompletely disoriented by pepper spray. If the Crown had pursued it the jury would have been instructed on the limited probative valueof his post offence conduct. [45] In Angelis, the trial judge refused to put the defence of provocation to the jury and then made extensive reference to the accused’spost offence conduct.

Laskin J. held that because the jury could not consider provocation, the accused’s intent to kill became the centralissue of the case. If the jury was satisfied that the appellant had the intent to kill then his defence of self-defence could not succeed and aconviction for murder was inevitable. In ruling the trial judge erred Laskin J. went on to note at paragraph 54, that the Supreme Court ofCanada had recently considered the use of post-offence conduct in R. v. White, 2011 SCC 13, [2011] 1 SCR 433 [R v White] to supportan inference of intent.

He quoted paragraph 31 of Rothstein J.’s judgment and concluded, in paragraph 55 of Angelis: Post-offence conduct, therefore, is not subject to blanket rules. It is circumstantial evidence whose probative value depends on the natureof the evidence, the issues at trial and the positions of the parties. Thus, we do not automatically label certain kinds of post-offenceconduct as always or never relevant to a particular issue. Rather, we must consider all the circumstances of a case to determine whetherthe post-offence conduct is probative and, if so, what use the jury may properly make of it.

In the words of Rothstein J., at para. 36 of R.v. White, the overriding question is this: what do "logic and human experience" suggest that a jury can legitimately or rationally inferfrom the accused's post-offence conduct? [46] In applying Rothstein J.’s reasoning, Laskin J. concluded that the trial judge erred in inviting the jury to use the appellant’s post-offence conduct to infer the level of culpability and infer he was guilty of murder and not manslaughter stating, in paragraphs 56 and 57

of Angelis: As a matter of logic and human experience, the appellant's post-offence conduct could not support a rational inference of an intent to kill.That it could not do so is evident from the circumstances. The appellant and his wife had no history of violence or abuse in theirrelationship. Yet, they had just had a sudden and very physical altercation. The altercation occurred in front of their two children. It wasbrief. It left the appellant disoriented and bleeding profusely from his genitals. And when it was over he knew only two things: Lien wasdead, and he had killed her.

In these circumstances, logic and human experience suggest that the appellant's post-offence conduct was as consistent with a panickedreaction to Lien's sudden and unintended death, as it was with a panicked reaction to her sudden and intended death. Thus, the juryshould not have been repeatedly instructed that they could use this evidence to decide whether the appellant had the intent for murder. [47] In the case at bar the accused did not testify and has not advanced a defence of diminished mental capacity, as did the accused inCudjoe or the accused could have done in Jaw.

He has not raised an issue of self-defence as the accused did in Angelis. The only issue heraises is whether the Crown has proved the requisite mental state for second-degree murder. As a result, he argues that his post offenceconduct is not probative because the behavior can be inferred to support a conviction for manslaughter or murder. If this Court relies onthese facts it will result in a breach of the well-established principle that post- offence conduct cannot be used to infer degrees ofculpability.

The Crown seeks to rely on the exception, described by Watt J. in Cudjoe, at paragraph 91, that the evidence is probative toestablish the “positive evidence of a particular mental state”. [48] The accused elected to be tried by Judge alone without a jury and I must now apply these principles that have evolved in theappellate review of jury instructions to instruct myself on the appropriate legal use of the accused’s post-offence conduct in deciding ifhe had the specific intent for murder in this case.

For assistance I rely heavily on the clear rules set forth in R v White. [49] The facts and issue in R v White are described at paragraphs 1 and 2 as follows: In the early hours of December 3, 2005, Lee Matasi was killed by a gunshot to the heart. According to multiple eyewitnesses, he wasshot by the appellant, Dennis Robert White. The two had been engaged in a physical altercation that began after Mr. Matasi made adisparaging remark to Mr. White, who was in possession of a loaded handgun. In the course of their struggle, the gun was fired into Mr.Matasi's chest, killing him instantly. Mr.

White immediately fled the scene, but was later apprehended by the police. Mr. White was charged with second degree murder. Throughout the Crown's case, the identity of the shooter was a live issue. However,by trial's end, counsel for the defence had effectively (though not formally) conceded that Mr. White had shot Mr. Matasi unlawfully andwas therefore guilty of manslaughter. Thus, the only live issue before the jury was whether Mr. White had the requisite intent for seconddegree murder.

The jury found that he did and convicted him on that charge. [50] The accused argued on appeal that the trial judge erred in failing to instruct the jury that the accused’s flight after the shooting hadno probative value. [51] Rothstein J. in R v White notes, at paragraph 20, that the change in nomenclature from consciousness of guilt to post-offenceconduct broadened the types of evidence that were tendered at trials. This change led some judges to believe that any evidence of theaccused’s actions must be subject to special warnings and limiting instructions.

However, he held that this was not always necessary andreviewed some basic principles. [52] Issues of admissibility arise throughout a trial. Some evidence is not admitted because it may be irrelevant. For example, in somecases where the accused has admitted culpability for another offence and the evidence cannot logically support an inference of guilt withrespect to one crime or another.

As noted by Major J. in White, this rule is essentially a matter of relevance and will only apply in narrowcircumstances. [53] Some of the evidence that is admitted may be removed from the jury on all or some of the issues in the case through the use oflimiting instructions. These will take the form of instructing the jury that the evidence has no probative value and should not beconsidered. Alternatively a judge may warn the jury of the risks associated with certain types of evidence. [54] The “no probative value” instruction should be given where the item is not relevant to a live issue.

As noted in paragraph 36 of R vWhite In order for evidence to satisfy the standard of relevance, it must have "some tendency as a matter of logic and human experience tomake the proposition for which it is advanced more likely than the proposition would be in the absence of that evidence" (Paciocco andStuesser, at p. 31, approved in R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 47, and R. v.

B. (L.) (1997), (ON CA), 35 O.R. (3d) 35, at p. 44 (C.A.) [55] Since the accused agreed to the admission of the post-offence conduct evidence relied on by the Crown, I conclude he is arguingthat it has no probative value and should be excluded from my analysis. He is advancing the same broad proposition advanced by theaccused in White that post-offence conduct is generally inadmissible in determining whether an accused is guilty of manslaughter ormurder.

However that argument was clearly rejected by Rothstein J. when he described the no probative test at paragraph 42 of R vWhite: In any given case, that determination remains a fact-driven exercise. Whether or not a given instance of post-offence conduct hasprobative value with respect to the accused's level of culpability depends entirely on the specific nature of the conduct, its relationship tothe record as a whole, and the issues raised at trial.

There will undoubtedly be cases where, as a matter of logic and human experience,certain aspects of the accused's post-offence conduct support an inference regarding his level of culpability. [56] At pages 41 to 43 of its Final written arguments on behalf of the Crown, filed June 17, 2013, [written submissions], the Crowndescribes the post offence evidence and its relevance to the issue of the specific intent of the accused.

The immediate post offence conduct of the accused is also extremely significant to the issue of his capacity to form a specific intent to kill at the time he stabbed Belinda Tootiak. After the assault, the accused attempted to clean up and mop up the blood before taking Belinda Tootiak to the health centre. Sgt.

Lane observed that a “red stained towel, blue jeans, and a t-shirt were in a pile on the floor of the closet” next to the bathroom door “which appeared to have been used to mop the floor”. [Ex # 10, paragraph 1] She reported that the blood on the bathroom floor had been diluted with water in an attempt to clean up. [Ibid, paragraph 2] She found a red [blood] soaked cloth in the bathroom garbage bin.

She found the “blood stained mop” in the middle of the kitchen floor. [Ibid, paragraph 9] She also found a red [blood] stained towel on a kitchen chair [Ibid, paragraph 10] and a wash bucket on the kitchen floor near the south east window. [Ibid, paragraph 11] S/ Sgt. Ellis’ observations also support this inference.

Indeed, he reported that the blood not only on the bathroom floor, but on the floor elsewhere and the south living room wall showed signs of dilution consistent with a “clean up”. [p.30; see also the blood soaked mop shown in Exhibit 3, Tab 22] Necessarily, it would have taken some minutes to attempt the clean up described by these experts. The foregoing forensic evidence is compelling evidence of a lack of immediate concern by the accused for the health and well being of Belinda Tootiak.

Given the nature of the stab wounds and the huge amount of blood which Belinda Tootiak shed, it was obvious to the accused as it would have been to any other healthy, sober adult, that Belinda Tootiak needed immediate emergency medical care. Yet the evidence demonstrates that the first impulse the accused had was to try to clean up. Why would the accused clean up rather than immediately take Belinda Tootiak to the health centre? This is where the Court must consider all the evidence and not just individual fragments.

This behaviour is entirely consistent with the repeated lies which the accused soon told the nurses and then the police. That he “never touched her”. That they were “doing good”. He even went so far as to fabricate a story that Belinda Tootiak slipped and fell onto the mop handle. Seen in this context, it should be clear that the conscious and deliberate impetus behind the clean up was an attempt to clean up the evidence. The Crown asserts the foregoing evidence is compelling proof, not of manslaughter versus second degree murder, but of “cognitive functioning and purposeful conduct”.

There can be no other rational inference drawn to explain these actions of a healthy and sober adult. If the accused knew the enormity of his actions such that he tried to clean up the evidence, and repeatedly lied to the nurses and police immediately afterward to claim absolute innocence, then he certainly knew, at the time he stabbed Belinda Tootiak that she would likely die if he stabbed her in the abdomen; especially if she did not receive immediate medical attention. The accused also deliberately put the weapon – the broken mop handle – between two cushions in the living room.

The placement of the murder weapon between two cushions on the couch in the living room is highly significant. Recall the evidence of S/Sgt. Geoff Ellis respecting the projected and swipe blood stains on the bathroom door and interior of the bathroom. These extensive blood stains: “…are consistent with originating from the movement of Belinda Tootiak in the area of the entrance to the bathroom after suffering a laceration to the femoral artery.” [Exhibit 9, p. 7.

See also the corresponding photographs in Exhibit 3, photographs 8 and 11.] This evidence leads to the inevitable inference that Belinda Tootiak was stabbed in the bathroom very close to the bathroom door. Yet the accused did not abandon the murder weapon there; he carried it into the living room and deliberately and purposefully placed it between two cushions on the couch located there.

Taken together with the attempted clean up and the ‘she slipped and fell’ story, the Crown asserts that the Court should be satisfied beyond a reasonable doubt that the accused was fully possessed with an operating mind when he stabbed, and killed, Belinda Tootiak. To restate this conclusion differently: the accused was healthy and sober when he stabbed Belinda forcibly not once, but twice. These were not superficial wounds. At least one of the stabs penetrated Belinda’s body to the depth of six and two thirds inches. The accused told the nurses he cut his hand when he pulled the mop handle out of Belinda.

He knew he had inflicted a grievous injury on her. And with Belinda’s shocking and staggering amount of immediate blood loss, the accused knew that she needed immediate emergency medical intervention if her life was to be saved. Nevertheless, the accused chose to try to clean up the bloody mess rather than take her immediately to the health centre. He was fully possessed of an operating mind and was able to understand the consequences of what he had done as well as the importance of covering his tracks.

The Crown submits that the accused’s post offence conduct is evidence of “cognitive functioning and purposeful conduct” which establishes that he had the specific intent to commit murder. Thus, the post offence conduct is relevant to establish the “positive evidence of a particular mental state”, in this case, the capacity of the accused to form the specific intent to murder Belinda Tootiak. [ 57 ] While the accused’s failure to assist Belinda in a timely manner bears some similarity to actions of the accused in Angelis, there are many other significant distinguishing features.

As Laskin J. noted there was no history of violence or abuse in the relationship and they had a sudden and brief altercation. The accused waited for four hours and carried out a number of activities before he called the police to report the death. In those circumstances logic and human experience suggested that the actions of the accused were as consistent with a panicked reaction to the wife’s sudden and unintended death as it was with a panicked reaction to her sudden and intended death. In the case at bar the accused attempted a clean up and then fabricated a story to cover up what he had done.

It is also important to note that in Angelis the accused testified that he was not angry during this struggle. He did not intend to hurt Lien or to cause her death. His intent was to stop her from hurting him. [ 58 ] I am satisfied that this post offence conduct relied on by the Crown is evidence on the cognitive functioning and purposeful conduct that is probative on the issue of whether the accused had the requisite mental state for murder. While it is prejudicial to the accused, its probative value outweighs the prejudice and I will accordingly use it in my analysis. C.

Should I draw the common sense inferences relied on by the Crown about the nature and timing of the injuries that killed Belinda Tootiak?

(

i) Crown Argument [ 59 ] The Crown argues that I can make a number of common sense inferences from the admissions of the accused and the post mortem examination of Dr. Michael Pollanen as described at pages 36 to 39 of its written submissions. [ 60 ] Firstly, I can infer that facial injuries of Belinda were caused by the broken end of the mop handle is set out at pages 36 and 37 of the Crown’s written submissions as follows: The accused has admitted that he assaulted Belinda Tootiak and that “at some point during the assault” he “stabbed her twice in the abdomen with a broken mop handle”.

The photographs of Belinda taken both at the health centre that morning and at the autopsy prove beyond a reasonable doubt that she suffered a prolonged and vicious beating. [Exhibits 4 and 5] Dr. Michael Pollanen described no fewer than forty four fresh injuries when he performed the autopsy, and that number did not include the gash over Belinda Tootiak’s right eye or the two abdominal stab wounds. Her injuries were located all over her body. [Exhibit 7] Nurse Bertha Byrne also addressed the freshness of these injuries in her statement to the police. [p.16] Dr.

Pollanen also identified “…multiple blunt impact injuries to the head”. [p.29] The beating inflicted by the accused on Belinda, manifestly, was both vicious and prolonged. [ 61 ] The Crown argues that I can infer that the narrow linear configuration of the bruising to her right eyelid and the side of her nose below her right eye is consistent with her having been struck in the face with the mop twice.

The gash over the same eye that Nurse, Erin Ferguson [Ferguson], said merited sutures is also consistent with having been caused by the broken end of the mop handle. [ 62 ] Secondly, I can make several inferences from the blood spatter report of S/Sgt. Geoff Ellis described at pages 37 to 39 of the written submissions. The first inference is that Belinda was stabbed in or very near the bathroom as follows: S/Sgt. Geoff Ellis, the RCMP blood spatter expert, investigated and later gave evidence respecting the projected and swipe blood stains on the bathroom door and interior of the bathroom.

These extensive blood stains: “…are consistent with originating from the movement of Belinda Tootiak in the area of the entrance to the bathroom after suffering a laceration to the femoral artery.” [Exhibit 9, p. 7.

See also the corresponding ‘Marker 1’ on the scene plan marked Exhibit 6 and photographs in Exhibit 3, photographs 8 and 11.] Ellis also observed spatter stains on the bathroom door frame consistent with the application of force: “…to an exposed blood source identified to Belinda while located in front of the bath room”. [p.31] This evidence leads to the inevitable inference that Belinda was stabbed in or very near the bathroom, very close to the bathroom door. [ 63 ] The second inference is that the accused was facing the bathroom and Belinda as he continued to beat her with the blood covered mop handle.

There is further evidence that the accused continued to use the broken mop handle to assault Belinda Tootiak even after he had stabbed her. S/Sgt.

Ellis observed that there were cast off blood stains on the east hallway wall beyond the bathroom which: “…are consistent with originating from the swinging of a blood-bearing object in a southerly direction in front of the bathroom”. [p.30] He added: “A portion of these stains were of sufficient volume that gravity caused the blood to flow towards the floor after contact with the wall… [and] The spatter stains on the wall are consistent with originating from a blood-letting event occurring involving the use of force to an exposed blood source located in the area in front of the bath room”. [Ibid] From this evidence, the court may draw the rational and reasonable inference that the accused was facing the bathroom and his victim as he continued to beat Belinda Tootiak with the blood covered mop handle - “the swinging of a blood bearing object in a southerly direction” - after he had stabbed her.

So much blood flew from the broken mop handle that it dripped down the wall. [See ‘Marker 3’ – East Hallway Wall on Exhibit 6] Written Submissions, 37-38. [ 64 ] The third inference is that the violence continued into the living room where the accused continued to beat Belinda after she collapsed on the floor as follows: The evidence also suggests that the violence continued into the living room where the accused continued to beat Belinda Tootiak after she had collapsed on the floor: “The impact pattern stains on the wall are consistent with originating from a minimum of one impact to an exposed blood source identified to Belinda Tootiak.

The blood source was located within 1 m of the floor in an area between the wall and front entrance room door to the residence”. [p.30] Clearly, the “blood source” was Belinda herself and the “impact” another blow inflicted by the accused. Written submissions, 37. [ 65 ] The fourth inference is that Belinda died within a “magnitude of minutes” from the time she was stabbed twice in the abdomen and then examined by the nurses at the Health Centre as follows: We know that the accused took Belinda Tootiak to the health centre that same morning at approximately 7:15 a.m. Responding to the

commotion created by the accused downstairs in the health centre, nurse Erin Ferguson responded and immediately checked Belinda Tootiak and could not find a carotid (neck) pulse. [p.17] Nurse Bertha Byrne reported that she was unresponsive with her “arm kinda hanging over the side, flaccid”. The nurses attached a monitor to her chest which registered ‘asystole’ which meant that Belinda Tootiak’s heart had stopped beating. [p.19] Clearly, by the time the accused took Belinda to the health centre, she was already dead or at death’s very door step. Dr.

Pollanen addressed the issue of how long it would have taken Belinda Tootiak to die from blood loss after her femoral artery was lacerated. He stated: “…In general, femoral arterial injuries result in rapid blood loss. Thus, in my view, the timing was in the magnitude of minutes rather than an hour, but it is not possible for me to be reliably more specific”. [Exhibit 7, Tab 2; emphasis added] Again, the scene photographs are instructive of the large amount of blood lost by Belinda Tootiak.

In light of this evidence, the only rational inference which may be drawn concerning the timing of Belinda Tootiak’s death is that she had died within a “magnitude of minutes” from the time she was stabbed twice in the abdomen and then examined by the nurses at the health centre. written submissions, 38-39. [ 66 ] The Crown argues that the two stabbings in the abdomen were not superficial. The accused stabbed Belinda so hard that he impaled the mop handle inside her to a depth on six and two thirds of an inch.

It would have taken a considerable amount of force and determination to penetrate her abdomen given the size and bluntness of the end of the mop handle. (ii) Defence Argument [ 67 ] The accused argues that the evidence about the freshness of the injuries suffered by the deceased is not supported in Dr. Pollanen’s report. There is some evidence on this point in the “Report of Death” form filled out and filed by Carole Raymond. She relied on a comment in Nurse Bertha Byrne’s [Byrne] statement to the police.

The paragraph that contains the freshness remark also mentions that the deceased also had “old bruising over her body” as well. Byrne did not clarify in her remark what bruises were fresh and which were not. As a result Byrne’s remark does not provide support for her conclusion and this Court is not in a position to accept the speculation of the Crown. [ 68 ] The accused notes the comment at page 30 of the Crown’s written submissions that “the Report failed to note the presence of the gash over Belinda’s right eye which, according to nurse Ferguson, would have required sutures”.

Therefore, one of the alleged ‘fresh injuries’ is missing from Dr. Pollanen’s Report entirely and this court does not have the testimony of either Dr. Pollanen or Byrne to explore this omission. [ 69 ] The accused argues that without the supporting testimony of Dr. Pollanen the Crown narrative of the events in the house is pure speculation and not proof beyond a reasonable doubt. There is no evidence of whether these injuries occurred contemporaneous to the stabbing or in the hours leading up to it. [ 70 ] Some of the injuries may have occurred when the accused transported the deceased to the Health Centre.

Without expert on what rational and reasonable inferences may be drawn this Court would be speculating on the basis of photographs and limited descriptions. [ 71 ] The accused argues this Court cannot draw the inferences suggested by the Crown from the blood spatter evidence.

The Crown suggests that this evidence supports the conclusion that there was a prolonged beating after the stabbing despite beginning their submissions with the statement that the beating culminated in a stabbing. [ 72 ] The accused notes the Crown’s statements about the accused’s apparent rage and the horrific nature of the assault drawn from the photographs of the blood.

He argues that it is not a common sense inference for the Crown to suggest that a particular cut is consistent with having been caused by a mop handle, a particular bruise from the accused’s fist, or that blood splatter evidence pattern is indicative of a struggle unfolding. These conclusions could only come from expert evidence that the Crown did not call. [ 73 ] The accused argues that the Crown’s conclusions from the location and nature of the wounds are not helpful in determining whether he was reckless about whether death would ensue.

He admits the stabbings were profoundly violent and this court could conclude that he intended to do significant damage to Belinda. However, without expert evidence this court cannot infer from the wounds that the accused had the ability to understand that his actions could kill the victim or that he was reckless whether death would ensue. [ 74 ] In support of this argument the accused points out that the Crown did not tender any evidence that the stabbings were inward into the body cavity and vital organs of the deceased. The mop handle did not travel six inches into her body.

The pathologist indicates, at page 11 of his Repot, the mop handle travelled along a “wound path 17 cm long crosses the midline at the mons” and further that it traveled through subcutaneous fat ultimately lacerating the femoral artery. It is not clear from the pathology report how deep the mop actually went into her body. It lacerated the skin and fat until it reached the femoral artery but no evidence it lacerated muscle. [ 75 ] As a result it is open for this Court to conclude that the handle actually traversed a path relatively shallow into and along her abdomen until it lacerated the femoral artery.

It is also open for the Court to find that the wound was sexual in nature because it was near her genitals and is consistent with a jealous man intending to cause harm. However, without expert evidence these conclusions are not helpful in drawing a common sense inference that the accused was aware that there was a likelihood that death would ensue. (iii) Analysis [ 76 ] The accused admitted in the formal admissions filed as exhibit 1 that “he unlawfully assaulted Belinda during an argument that morning. At some point during the assault the accused stabbed Belinda twice in the abdomen with a broken mop handle”.

I interpret from this admission that the accused admits the assault consisted of at least the two stabbings but may also have included other types of assaults such as being hit with the broom handle and that they occurred during the morning of June 13, 2008.

[ 77 ] The accused’s arguments about the blood spatter evidence do not challenge the inferences that the stabbings occurred in or very near the bathroom and that the accused continued to beat her with the blood covered mop handle. The same is true about the inference that Belinda was struck by at least one blow in the living room and that she died within a “magnitude of minutes” from the time she was stabbed twice in the abdomen. [ 78 ] Ferguson distinguished between old injuries and new or fresh ones.

She noted that: “She did have some old bruising, it looked like, on her lower back… It looked like she had some old bruising on her back, her lower back. She also had a laceration over her right eyelid, it was probably half an inch. She also had bruising all down her, the inside of her right forearm.

And some on then inside of her left forearm and they kind of looked older, that greeny-yellow colour that bruises get, on her thighs and her shins… Fresh injuries were, she had the laceration over her right eyebrow and she had the two wounds to the abdomen. [ 79 ] Byrne stated that she noticed a laceration over her left eye and bruises on her body. She then further described the injuries as follows: “It was about half an inch, and it looked a little bit deep, it wasn’t superficial. Excuse me. She had bruises over her right eye, and on her forehead.

On her right arm, in her forearm, right up the axilla, practically, there was bruises. Her right hand, the knuckles, the ring finger and the middle finger, the entire, going into the dorsal of the hand, there was swelling and bruising. There was, I think, her and there, scattered bruises on both her lower legs. RM: From your experience as a registered nurse, what injuries on the victim looked fresh? BB: The laceration over the right eye. RM: Ok. BB: Um, the bruises looked fresh. RM: Ok. BB: The swelling in the hand. RM: Yeah.

BB: And the two wounds in the abdomen. [ 80 ] I am satisfied that I may reasonably infer from this evidence that the bruising to her right eyelid and the side of her nose below her right eye and the laceration were fresh injuries. Since I have inferred that she was beaten with the broom handle I am able to conclude without an expert opinion that she received the gash over her eye when she was struck with the broom handle.

She received the bruises to her right eyelid and the side of her nose when she was struck a second time with the broom handle. [ 81 ] I am satisfied that the blood spatter inferences are supported by the photographs in Exhibit 3 and that the Crown’s description that the “walls, doors and the floor in several parts of the residence are awash in blood” is a reasonable conclusion. The Crown’s statement that “the rage of the accused and the violence perpetrated on Belinda was horrific” is a statement of opinion. However, and it is certainly a plausible conclusion from this evidence.

By way of contrast the victim in Cudjoe suffered a single stab wound that occurred during a struggle and the accused stopped when he realized the knife went inside the victim. She also only suffered a minor cut on her neck and some superficial bruising. Finally, the victim in Cudjoe did not have any blunt force injuries. [ 82 ] The accused argues that the two stabbing injuries may be interpreted that he did not have the subjective intent to understand that there was a likelihood that death would ensue from the stabbings. I address this argument in

Part VI below. D. If I rely on the propensity evidence I ruled admissible at the voir dire will I be drawing the forbidden inference that because the accused is a bad character and was violent in the past toward the deceased he must have intended to kill her? (

i) Crown Argument [ 83 ] Relying on Moo the Crown argues that the propensity evidence tendered is both relevant and probative to the issues of the accused’s animus toward Belinda and his motive and intention to kill her. [ 84 ] The evidence I ruled admissible at the voir dire as described in Kayaitok provides ample evidence on animus, motive, and state of mind of the accused when he stabbed Belinda twice in the abdomen. [ 85 ] On September 15, two counselors, Leona Krejunark [Krejunark] and Brenda Quaqjuaq [Quaqjuaq] were summoned to the Wellness Centre to assist Belinda after she fled the violence that occurred in her home that night.

Their statements described a young woman in considerable pain who had been badly beaten and had bite marks on her. Photographs taken by the police and Health Centre records corroborate the statements. [ 86 ] The deceased’s statement to the attending nurse clearly described that the accused threatened to kill her and her children nine months before he killed her on June 13, 2008. In response to the threat Belinda fled the residence and ended up at the Health Centre. [ 87 ] The violence in the relationship escalated in the months leading to June 13, 2008, particularly in the month of May.

In one incident her sister and brother-in-law described the deceased coming to their house in bare feet through the snow on the ground at noon covered

in Vim and Mr. Clean. Tony Immingark’s [Immingark] statement is highly significant because it indicated that the violence that day wascaused because the accused thought she was fooling around with another guy. These statements prove that the accused had a continuingand festering animus toward Belinda over his suspicions that she was having an affair with Roland Heisinger. [88] Further evidence that the relationship was in crisis comes from exhibit 12, Tab 4 which is the medical report on the incident thathappened on May 10, 2008.

It stated that when Belinda arrived at the Health Centre she was distraught, limping, and very badly beaten.She had bit marks and multiple bruising. The accused had used enough force on her when he pulled her jaw that she saw stars. Thereason she was assaulted was again recorded as because she was seeing another man. [89] This propensity evidence must be considered with the entirety of the crown’s case.

These statements and the corroborating extensivephysical injuries and eyewitness observations pointing to other violent attacks by the accused are credible and reliable indicators of thecontinuing animus of the accused toward Belinda.

In particular, at page 15 of the accused’s statement to Christopher Amautinuar that he wanted to kill Roland Heisinger “becausehe was fucking around with Belinda” informs and explains the animus and motive behind the fatal and violent attack against Belinda onJune 13, 2008. (ii) Defence argument [90] Relying on R. v Gauthier (SCC), [1977] 1 SCR 441, 27 C.C.C. (2d) 14 the accused argues that, despite my voirdire ruling, I can reconsider whether the propensity evidence is probative on the issue of the specific intent. [91] The accused acknowledges that the propensity evidence would be relevant if there was an inconsistency in the Crown’s evidencebetween what he admits happened in the actus reas and what the evidence relied on by the Crown implies or proves about the actus reas.However, there is no inconsistency suggested by the Crown’s case. [92] The propensity evidence may have been relevant if there was any evidence of motive in the Crown’s case.

However, this Court heldin Kayaitok that there was no evidence of motive. [93] The Crown is essentially asking this Court to draw a conclusion based on the theory that the propensity evidence presented can beused to find the accused had the requisite specific intent at the time of the stabbing. [94] As noted by this Court in Kayaitok the admissions made by the accused significantly impact the relevance of the propensityevidence. [95] Relying on R v Batte (ON CA), [2000] OJ No 2184, 49 OR (3d) 321; R v Dupras, 2000 BCSC 1128, [2000] BCJNo 1513; R v Kringuk, 2012 NUCJ 20, 104 WCB (2d) 359 [Kringuk]; and R. v VanEindhoven, 2012 NUCA 5 , 2012 NUCA05, 2012 NuJ No 15 [VanEindhoven]; the accused argues that evidence of animus is not relevant to the issue of specific intent. [96] These cases have held that propensity evidence is relevant when identity is at issue and in the determination of whether the accusedhad the general intent to commit assault.

Since the accused has admitted he killed the deceased when he assaulted her with a weapon thatcaused her death and that he had the general intent required for the offence of assault with a weapon there is no logical nexus betweenthe prior assaultive behavior and whether the accused had the specific intent for second degree murder at the time of the stabbing. [97] The accused argues that the threat to kill the deceased was made a year prior to her death.

The contemporaneous threat to kill wasmade against another person. [98] The accused also argues that the Crown’s argument that the deceased’s desire to leave Kugaaruk is somehow relevant to the specificintent for murder is very tenuous. This evidence would also be relevant to the general intent required for assault and does not assist thisCourt. [99] The accused distinguishes the case at bar from other case like Kringuk where the nature of the behavior was relevant to the issuebefore the court.

In that case the propensity evidence before the court was that of prior acts of threatening behavior by shooting thatspecifically related to the manner of death by shooting. Also unlike the case at bar the accused did not make any admissions. [100] The accused distinguishes the case at bar from other domestic murder cases that have admitted propensity evidence like R vHindessa, (ON SC), [2009] OJ No 3837, 2009 CarswellOnt 5495, [Hindessa]. In Hindessa, unlike the case at bar,the Crown adduced evidence of specific intent that was supported by the propensity evidence.

Furthermore in Hindessa, unlike the caseat bar, the defence raised other defences on issues about the mental capacity of the accused so that the propensity evidence was relevantto the credibility of these defences. [101] Since the propensity evidence sits by itself and does not support other direct evidence of intent it is only being used to make theforbidden inference of concluding from the bad past character of the accused that he must have intended to kill the deceased at the timeof the stabbing. [102] In cases where propensity evidence was admitted it was necessary to guard against the trier of fact obtaining a dangerouslyinaccurate picture of the relationship between the parties.

This type of concern is not present in the case at bar because the accused hasmade major admissions not present in many other cases. The relationship standing alone has no bearing on the issue of the specific intentof the accused. [103] The accused disagrees with the Crown’s use of the words “escalating pattern of violence” that began in 2007. He submits that itonly shows a pattern of violence that is unhelpful in resolving the issue of his intent. The accused history of violence against the deceaseddoes not mean he intended to kill her on June 13, 2007.

Similarly the fact that he made other threats on the same day does not mean heintended to kill her.

(iii) Analysis [ 104 ] The Crown argues that it has proved beyond a reasonable doubt that the accused had the intent required under both

section 229 (a) (

i) and 229 (a)(ii) of the Criminal Code . It does not rely on the propensity evidence for a conviction under

section 229 (a)(

i) because at page 48 of its written submissions it notes that “the Court need not consider the evidence of the nature of the parties’ domestic relationship in order to convict the accused of second degree murder”. [ 105 ] As I held in Kayaitok animus is very relevant to the issue of specific intent. I stated at paragraph 91: However, the issue of animus is in a different category. The accused acknowledges that Dupras establishes the principle that evidence of animus can be relevant to the issue of the intent required for second-degree murder.

The accused argues that the Crown must prove a continuing animus that was contemporaneous with the offence. The Crown evidence covers a long period from 1994 to 2008 and does not prove a continuing animus up to the date of the killing because there were many violent incidents that were broken by periods of reconciliation. [ 106 ] The judgment applied the rationale of Dupras by holding that evidence of violence in the relationship prior to the threat to kill made on September 15, 2007, became more irrelevant to the issue of intent the further it was from the date of death.

However, because there was an acceleration in the violence starting in 2006 including the threat to kill on September 15, 2007, I was satisfied that the Crown had proved there was a continuing animus that was relevant to the issue of intent and permitted the Crown to rely on that evidence. I continue to hold that view and decline to reconsider the conclusion in Kayaitok . [ 107 ] Although I did state in paragraph 90 that, “there is nothing in the Crown materials that is relevant to a motive”, I did not have the benefit of the Crown’s written submissions that focused the voluminous evidence tendered in Kayaitok .

I am now satisfied that there was evidence of motive and continuing animus in the evidence tendered for the period after September 15, 2007. The Crown relies on only a small part of that evidence that would qualify as propensity evidence as an alternative argument under

section 229 (a)(ii). [ 108 ] While the accused’s admissions distinguish the case at bar from Kringuk, VanEindhoven and Hindessa they do not remove the probative value of the evidence after September 15, 2007. As I stated in paragraph 99 of Kayaitok the probative value outweighs any prejudice to the accused. [ 109 ] The evidence about the deceased’s desire to leave Kugaaruk is not propensity evidence. It comes from the deceased’s mother Neevee Tootiak [Neevee]. As noted at page 35 of the Crown’s written submissions, Neevee reported two conversations with the deceased on June 7 and 8, 2008.

In one statement Belinda said she was afraid she would die during the next anticipated beating. The credibility of the deceased fear for her life was corroborated by Neevee’s reported conversation as well as the medical record of June 2, 2008, and a statement by nurse Jennifer Davidson [Davidson] that a desperate Belinda was preparing to flee Kugaaruk with her two young children.

As I stated in Kayaitok the deceased’s statements are admissible hearsay under Kahn while the evidence of Nurse Davidson is admissible hearsay under section 26 (1) of the Canada Evidence Act RSC 1985, c C-5 [ 110 ] The accused’s argument that the lack of direct evidence would increase the risk that I would conclude, on the basis of the propensity evidence alone, that he had the specific intent for murder is not valid. It is not uncommon in domestic murders that there are no witnesses to the killing. To prove the intent the Crown must rely on circumstantial evidence.

As I have previously ruled the accused’s post-offence conduct is admissible evidence. With the benefit of this evidence and the expert reports the Crown has woven together a very plausible argument without relying on the propensity evidence except as an alternative argument. There is no risk that I will conclude that the accused had the requisite intent because he was a bad character and the evidence is admissible in this case. VI. FINAL ANALYSIS AND CONCLUSION A.

Section 229 (a)(i) [ 111 ] The unchallenged evidence of Christopher Amauntinuar [Amauntinar], Jeffrey Ittinangnak [Ittinangnak] and Anna Tootiak proves that Belinda appeared healthy and normal on June 2 and shortly after midnight on June 3. (

i) Threat to kill Roland Heisinger [ 112 ] At pages 2-3 of Amauntinar’s statement he stated that on the night before the accused killed Belinda, when he was calm and sober, he told him that: “…he wanted to hurt somebody or kill someone. And he didn’t, at first he didn’t, he didn’t say who it was going to be, but then when, after he told me, you know, and I asked him who he wanted to hurt or kill, and he goes, Roland. That’s simply, he said, Roland. Q. Do you know who Roland is? A. Roland is someone from out of town, he was. I think his last name is Hiesinger... . Q.

Did he speak anything…in addition to this, or that’s it? A. I asked him, I asked him why he would want to kill Roland, and he tells me that he was fucking, or Roland was fucking around with Belinda, you know, that’s what he told me. And you know, I simply told him, you don’t have to kill him, you know, beat him up, teach him a lesson, but do not kill him, don’t kill him. You know. That’s the only thing I told him.” (ii) Belinda’s fear of being killed [ 113 ] At pages 2 and 7 of her statement Neevee also reported two conversations she had with her daughter on Saturday, June 7 and Sunday, June 8, 2008.

At page 7 she stated that on the Saturday her daughter refused to go seal hunting with the accused because she

feared that she would be beaten again. Then, the following day during another telephone conversation, Belinda told her mother that the accused wanted to beat her up “all the time”: PM …Did she anything at all, about their relationship on June 8th, on Sunday? NT She said that, even, like even if they’re not high, or they’re sober, you know, sober all the time, he would scold her, or want to beat her up all the time. PM Ok. Did she tell you that on Sunday? NT Yeah. Mmhm.

She said she was really, really, scared. [ 114 ] At page 2 Neevee said that Belinda was so afraid that she feared she might die during the next, anticipated beating. She stated: “PM: She was scared of what? NT: Of her. Of Bruce. That he might, you know, accidentally really hurt her, and she might not come back. Because she said one time he beat her up so bad when she got up she had pins and needles on her tongue. She said she was, um, when he punched her she must have been knocked out. And she said she was afraid that she might not make it this time.

Because she’s always scared, she said. [ 115 ] The credibility of Belinda’s fear for her life is corroborated by Neevee’s statement to Davidson, recorded in the medical record of June 2nd, that Belinda was preparing to flee Kugaaruk with her two young children. Tony Immingark’s statement of March 2 records that Belinda also told him that about a week before she was killed that she was planning on using her next child tax credit check to take the two boys from Kugaaruk. [ 116 ] At page 2 of her statement Neevee also reported on Belinda’s plan to flee Kugaaruk.

On the Sunday before she was killed, her daughter had told her that she had spoken to social services and she was waiting for a call from a social worker. Belinda told her mother she was hopeful that the department would pay for her and her two sons to leave Kugaaruk to return to Gjoa Haven.

This conversation is corroborated by the record of Belinda’s visit to the health centre on June 2, 2008, to use their telephone to call the social worker in Gjoa Haven. “1900 Pt phoned NOC [Nurse on Call] asking to speak w SW no long distance @ residence Pt to HC to speak to S[andra] Weir in Gjoa Haven” Sandra Weir was the social worker assigned to the Kayaitok/Tootiak file. [ 117 ] Further evidence of Belinda’s intention to flee is apparent at page 4-5 of Christopher’s statement when he stated that several weeks before the accused killed Belinda: “…that he’s been having problems with Belinda.

And he goes, you know, I’m so, I’m so tired of all this problem, I really, I want, I wanna let her go, I wanna kick her out of my house…his plan was to, you know, separate with her.” [ 118 ] Belinda’s statements clearly indicate that tensions were building to a crisis. This evidence proves beyond a reasonable doubt that Belinda was thinking of leaving Kugaaruk and that the accused was so jealous of his wife’s suspected infidelity that he was threatening to kill her alleged lover only hours before he beat and stabbed her to death.

I am satisfied that I may draw the reasonable inference that animus and jealousy fueled the accused’s anger and informed his intent to murder Belinda the following morning. (iii) Sobriety of accused [ 119 ] I earlier inferred that Belinda died within minutes of the second stabbing. This evidence ties in with observations made by Nurse Charmaine Saunders [Saunders] and police officers Cpl. Ryan Snodgrass [Snodgrass] and Sgt. Maurice Poisson [Poisson] about the apparent sobriety of the accused at the Health Centre that are very relevant to the accused’s state of mind and mens rea at the time of the stabbings.

Saunders and Snodgrass both stated that the accused did not smell of alcohol and appeared completely sober. Poisson testified at page 7 of the transcript of Kayaitok as follows: “Q. Can you please tell the court how he appeared as you entered the room? A. He was just standing there…. Q. …what his demeanour or affect was like at this first point in time? A. I did not see anything outstanding on him. You know, there was nothing out of the ordinary. Q. What happened after you…entered the room? A. One of the nurses mentioned a knife.

Erin Ferguson stated Belinda was dead, or deceased…and one of the nurses actually stated something about being stabbed. Q. How, if at all, did Bruce Kayaitok react to these things being said? A. I do not recall any reaction out of him for the knife. I don’t recall any reaction to (sic) him in reference to her being dead. The comment about “stabbed”, it was made and – it was made and all of a sudden he said, “She fell on a broom,” “a broom handle,” actually, and then Cst. Snodgrass told him that he had to come with us, “You’re a suspect. You’re under arrest.” Q. Did Bruce appear to understand what Cst.

Snodgrass had just said to him?

A. Yes, he did. Q. At this time did Bruce appear to be oriented to his circumstances and surroundings? A. Yes, he was. Q. At this time, Sergeant, did you make any observations with respect to Bruce’s apparent state of sobriety? A. I was watching him. It was a continual flow from there walking over to the office as well. I could not detect any difference in walking. He did not appear to be under any influence. He walked like a person normally would, to the best of my knowledge. Q. Did you notice any indicia that Bruce had recently consumed any drugs? A. No, sir. Q.

At this time, what was Bruce’s apparent state of health? A. I did not notice anything wrong with him in reference to – he had a small cut, but that was basically it. Walking-wise, he was okay. Talking-wise, he was okay. There was no slurring of words. He appeared to be normal.” [ 120 ] Ittinangnak noted in his statement that the accused was sober at 11

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