R. v. Kayaitok, 2013 NUCJ 02

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. Kayaitok, 2013 NUCJ 02 Date: 20130116 Docket: 24-08-08 Registry: Iqaluit Crown: Her Majesty The Queen -and- Accused: Bruce Kayaitok ________________________________________________________________________ Before: The Honourable Mr. Justice E.

Johnson Counsel (Crown): Paul Bychok and Amy Porteous Counsel (Accused): Malcolm Kemp and Clare Henderson Location Heard: Iqaluit, Nunavut Date Heard: January 19, September 10, and October 19, 2012 Matters: Rulings on voir dires (admissibility of statements and propensity evidence) 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 [Tootiak] on June 13, 2008, in the community of Kugaaruk. [ 2 ] The Crown expects to prove at the accused’s trial next year that at 07:15 hrs on the morning of June 13, 2008, the accused brought the body of his deceased spouse to the Health Centre and banged on the front door. A nurse went downstairs to see what was happening and saw the accused inside the Centre with blood on his hands and arms.

She noticed the body of the deceased on a stretcher in the emergency room and had a conversation with the accused. The nurse determined that the deceased had a weak pulse but no cardiac rhythm. [ 3 ] The Crown expects that the autopsy evidence will prove that Tootiak died in the Health Centre that morning of exsanguination caused by two penetrating injuries to her right lower abdomen, which lacerated her left femoral artery. [ 4 ] The R.C.M.P. arrived shortly afterwards and arrested the accused for murder. Moments later at the Health Centre the accused made an utterance in the presence of two police officers.

He made another utterance as the officers walked him to the police detachment. He made two further utterances while in the police detachment. The accused also gave a warned recorded statement to another officer after he was arrested and placed in police cells. [ 5 ] The Crown seeks to introduce into evidence these verbal utterances and the recorded statement as being voluntary statements made by the accused. During the voir dires, I heard evidence from three R.C.M.P. officers and listened to several audio recordings. [ 6 ] The Crown’s case is based on circumstantial evidence.

It is centered on the utterances of the accused that place him with the deceased at the time of the fatal wounds. As a result, the Crown also seeks to introduce into evidence three types of contextual evidence on the history of the relationship between the accused and his deceased spouse. The Crown asserts that this evidence is probative and relevant for the jury to hear in order to understand the circumstantial evidence that will be presented at the trial.

The Crown also asserts that the evidence will be crucial in assisting the jury to understand the accused’s animus toward the deceased, his motive to kill her and that he was the assailant. [ 7 ] The contextual evidence consists of written materials explaining the nine previous prosecutions of the accused for assaulting the deceased.

It also includes medical records contemporaneous with many of the prosecutions and the viva voce evidence of seven witnesses who knew both parties and interacted with them as they dealt with many violent incidents in their relationship. [ 8 ] The Crown also reserved the right to make a further application to introduce evidence from social workers that has not yet been compiled by the police. [ 9 ] After hearing the oral and written arguments of counsel, I reserved judgment. II. ISSUES A. Admissibility of Utterances and Recorded Statement B. Admissibility of Contextual Evidence A.

Admissibility of utterances and recorded statement

(i). Evidence [ 10 ] The Crown called three R.C.M.P. officers at the voir dires. Corporal Ryan Snodgrass [Snodgrass] testified that he received a phone call from nurse Charmaine Saunders at 07:40 hrs on the morning of June 13, 2008, requesting police assistance at the Health Centre. He called Sergeant Maurice Poisson [Poisson] and they both attended at the Health Centre. [ 11 ] Snodgrass testified about an oral utterance made by the accused after they arrived at the Health Centre at 07:50 hrs (Voir Dire # 1).

After hearing the utterance, Snodgrass arrested the accused and then both officers escorted him to the police detachment. [ 12 ] On arrival at the detachment, Snodgrass called his District Advisory NCO in Iqaluit.

Poisson told Snodgrass to re-arrest the accused, read him his rights, take photographs, and to obtain a blood swab and finger nail scrapings. [ 13 ] Poisson testified about an utterance he heard from the accused between 07:50 and 07:55 hrs as they were walking over to the detachment (Voir Dire # 2). [ 14 ] Poisson testified about another utterance he heard from the accused shortly after they arrived at the detachment when Poisson placed the accused in an interview room (Voir Dire # 3) [ 15 ] Poisson also testified about an utterance he heard from the accused at 14:35 hrs when he was in his cell (Voir Dire # 4). [ 16 ] Constable Joe Baines [Baines] testified about a recorded statement he took from the accused at 16:11 hrs on the afternoon of June 13 (Voir Dire # 5). [ 17 ] Snodgrass testified that when he and Poisson arrived at the Health Centre he observed three nurses and the accused standing around the emergency room and the deceased lying on a bed.

One of the nurses had mentioned something about knife wounds and that Tootiak was dead. In response, the accused said that the deceased “fell on a broom.” Snodgrass then told the accused he was a suspect and arrested him. Poisson confirmed Snodgrass’s evidence about the utterance at the Health Centre adding that he heard the accused say it was a broom handle rather than a broom. [ 18 ] Both officers then walked with the accused back to the detachment. Snodgrass consciously avoided speaking with the accused because of information he had learned at a course a year earlier.

Poisson was aware that utterances could be admissible in court and did not want to say anything to the accused because he knew he could be questioned about it later. He did not want to write it down at that time and as a result he did not ask the accused any questions. [ 19 ] Poisson testified that as they were walking to the detachment the accused stated “they had been in the shower together, that she fell on a broken broom handle and there was lots of blood from the bathroom to the living room.” [ 20 ] On arrival at the detachment at 07:55 hrs, Poisson placed the accused in an interview room.

Poisson asked the accused if he had been drinking and he replied in the negative. He then asked the accused, “Did Belinda fall on the knife - a knife”? The accused responded, “She fell and landed on a broken mop handle.” The accused then said that he grabbed it and pulled it out and there was lots of blood. He carried her to the couch and started to dress her. The accused stated that she was getting pale so he put her on his shoulder and he carried her outside and put her on a bike and took her to the Health Centre.

He waited five to ten minutes trying to get the attention of a nurse. [ 21 ] At 08:42 hrs Snodgrass re-arrested the accused and read him the standard police caution with Poisson in attendance. Snodgrass’ complete interaction with the accused was recorded by a cassette tape recorder. Snodgrass asked the accused if he wanted to speak to a lawyer. The accused responded, “For what? I didn’t do nothing.” Snodgrass then took photographs and scrapings from under the accused’s fingernails.

[ 22 ] At 09:03 hrs the accused was placed in a cell. Poisson left the detachment to make arrangements for a guard and he and Snodgrass took turns checking on the accused during the day. The accused was lying down on the bed covered by a blanket and appeared to be sleeping most of the day. At 14:20 hrs Poisson was checking on the accused and noticed the accused was sitting up on his bed. The accused asked him what was going on and he responded that some R.C.M.P. officers from Iqaluit wanted to talk to him. At 14:30 hrs the accused said his finger was bleeding.

Poisson told him not to pick it and to wrap it in a Kleenex and put pressure on it. [ 23 ] At 14:35 hrs Poisson noticed the accused sitting by the door of his cell. The accused asked him why he was there. Poisson responded, “You are under arrest for the murder of Belinda.” The accused responded, “I didn’t do anything. We were doing good.” Poisson asked him if he had been drinking last night and the accused responded that he had a few shots. Poisson asked him when he had his last drink and the accused responded last night. Poisson asked him where he got the alcohol and he said he bought it.

A short time later, as Poisson was leaving the cell area, the accused stated, “There were two holes in her.” [ 24 ] At 16:11 hrs Baines started a recorded statement with the accused. A short time later, at 16:13 hrs, Baines and Snodgrass seized some clothing that the accused was wearing. The accused was given replacement clothes and offered something to eat and a cigarette. He declined the offer and asked why he was being kept in jail.

Baines replied that the accused was in jail because he was arrested for murder and the accused responded, “I didn’t even touch her.” The following questions and answers then took place after the accused refused the offer of refreshments: A. Look I never touched her at all. Q. You never touched her at all? A. I never, she slipped. Q. She’s what? A. Broken mop. Q. Oh, she slipped? A. Yeah. She was taking a shower and then she was walking around and that fucking mop was there. It cut her stomach.

I was, I brought her to the health centre… [ 25 ] All three officers testified that the accused was not under the influence of alcohol and appeared to understand and comprehend everything that was going on. Poisson testified that he asked the accused twice whether he had been drinking because during his past encounters with the accused he had been drinking and Poisson was suspicious the accused might have been drinking even though he could not smell the odour of alcohol. The accused responded that he had a couple of shots the night before.

The officers knew from past experience that the accused understood English. (ii). Crown argument [ 26 ] The Crown argues that the statements were voluntary and are admissible at the trial except for the statements covered in Voir Dire # 3. The Crown concedes that because the accused was under arrest when he made that statement he should have been cautioned and Chartered. Furthermore, unlike the other utterances, the statement was elicited by posing a question to the accused. (iii). Defence argument [ 27 ] The accused did not challenge the admissibility of the other statements. (iv).

Analysis [ 28 ] Although the accused had been drinking the night before, I am satisfied that he was sober when he was arrested and fully comprehended what was going on. His physical co-ordination and balance was good and his speech was not slurred. He was able to communicate with the police and he was responsive to the questions from the police. He had an operating mind.

A.iv.1 Voir Dire # 1 [29] As noted by Kilpatrick J. in R v VanEindhoven, 2006 NUCJ 12, [2006] Nu J No 13 [VanEindhoven], the absence of a policecaution does not determine whether an accused’s statement was voluntary. The presence or absence of a caution is just one of manycircumstances to be considered by the Court in the larger issue of whether the statement was voluntary. As Kilpatrick J. stated atparagraph 28 of VanEindhoven, Where a caution is given to a citizen before he or she is called upon to speak, the mind is more likely to be focused. The caution tells thecitizen that there is a choice to be made.

It tells the citizen that there are serious legal implications involved in speaking out. It warnsthe speaker not to be influenced, in making their decision, by any threats or promises made by a person in authority. An admissionagainst interest made after caution, under such solemn circumstances, is more likely to be reliable and trustworthy. [30] As I noted at paragraph 125-128 of R v Jeffrey, 2007 NUCJ 6 , 2007 NUCJ 06, [2007] Nu J No 10, a caution should begiven when police are about to question a person who has become a suspect.

If a person is detained the police are required to advise ofthe right to counsel under

section 10(

b) of the Charter and there is a strong argument that the person is also a suspect who should becautioned. [31] When the accused made his first utterance he was not in custody. Poisson and Snodgrass had no reason to suspect the accused ofany involvement in the commission of an offence. The utterance occurred shortly after the police arrived at the Health Centre and wasnot prompted by any questioning by the police. It was a voluntary statement and reliable.

A.iv.2 Voir Dire # 2 [32] The second statement occurred when the accused was under arrest but before he was cautioned. [33] Neither officer sought information from the accused after he was arrested and was walking to the police detachment. The utterancewas spontaneous. The police were in the early stages of an investigation and, although the accused was an arrested suspect, the policewere not yet prepared to question him and consciously avoided doing so until later. Although the accused should have been cautioned, Iam satisfied that his utterance was voluntary and reliable.

A.iv.3 Voir Dire # 3 [34] The third statement took place after Poisson had placed the accused in an interview room. Poisson admitted that the usual procedurewas to place a person who was under arrest in the cellblock and then attend to booking him. However, he was bothered about why one ofthe nurses had mentioned a knife and so he put him in an interview room and asked him about it. At this point the accused was anarrested suspect and Poisson knew he had not been cautioned or Chartered. He was seeking information that he knew could be usedagainst the accused and that the accused might feel obligated to answer.

I have a reasonable doubt about whether this statement wasvoluntary and exclude it. A.iv.4 Voir Dire # 4 [35] The fourth statement occurred after the accused had been cautioned and given his Charter rights to legal counsel. He had spent mostof the day sleeping and was in no discomfort except for the small cut on his finger. He made no complaints to the police and did notmake any requests to speak to a lawyer nor for any refreshments. Poisson responded to a question the accused asked him and was nottrying to question the accused as he had done in the interview room.

The accused appeared to comprehend what was going on. I amsatisfied that these utterances were voluntary. A.iv.5 Voir Dire # 5

[36] The fifth statement was recorded by Baines and I am satisfied it was also voluntary. B. Admissibility of contextual evidence (i). Crown argument [37] The Crown argues that the current state of the law is accurately expressed in R v Misir, 2001 BCCA 202, 153 CCC (3d) 70 [Misir],which followed R v Peterffy, 2000 BCCA 132, [2000] BCJ No 338 [Peterffy].

In that case, the British Columbia Court of Appeal upheldthe trial judge’s ruling that both non-hearsay and hearsay evidence of the accused’s prior physical and verbal abuse of the deceased wasrelevant and material in determining whether the accused was guilty of second-degree murder. In applying Peterffy and R v F (DS)(1999), (ON CA), 132 CCC (3d) 97, [1999] OJ No 688, the court held that the evidence of past disreputable conductwas relevant because it indicated the accused had a threatening and violent attitude toward the deceased.

It was material because itprovided motive evidence that the accused was angry at the deceased’s taunting and disobedience. It was also material to the accused’sintent and to ensure the jury had an accurate picture of the appellant’s relationship with the deceased.

Finally, the Court held that theevidence of prior abuse was not only relevant to prove intent and motive but also to prove the “identity” of the assailant. [38] In Misir, the court also upheld the trial judge’s ruling that hearsay evidence of comments made by the victim to family membersand co-workers was also admissible if the evidence satisfied the requirements set out in R v Kahn (SCC), [1990] 2 SCR531, [1990] SCJ No 81 [Kahn]. [39] The Ontario Court of Appeal applied Misir in R v Cudjoe, 2009 ONCA 543, [2009] OJ No 2761 [Cudjoe], in which the accusedwas also charged with the second-degree murder of his wife.

The court upheld the trial judge’s ruling that evidence of two prior assaultson the deceased was admissible as an exception to the general rule prohibiting the admission of evidence of prior bad acts by theaccused.

The British Columbia Court of Appeal also applied Misir in R v McCotter, 2012 BCCA 54, [2012] BCJ No 213 [McCotter]. [40] In R v Van Osselaer, 2002 BCCA 464, 167 CCC (3d) 225 [Van Osselaer], the British Columbia Court of Appeal held that this typeof evidence is admissible, even if it is hearsay, if it meets the hearsay tests set out in Kahn, R v Smith, (SCC), [1992] 2SCR 915, [1992] SCJ No 74, and R v B (KG) (SCC), [1993] 1 SCR 740, [1993] SCJ No 22.

Leave to appeal to theSupreme Court of Canada was denied in R v Kahn, [2002] SCCA No 444. [41] The same analysis and approach to this type of evidence was adopted in Nunavut in VanEindhoven. In that case, Kilpatrick J.admitted documents and records related to a court-mandated spousal abuse program. Although the Nunavut Court of Appeal allowed theappellant’s appeal and ordered a new trial in R v VanEindhoven, 2012 NUCA 5 , 2012 NUCA 05, [2012] Nu J No 15, theCrown argues that the law summarized by Kilpatrick J. has not changed in Nunavut.

The ruling of the Court of Appeal merely impugnedthe weighing process used by the learned trial judge in his balancing of probative value versus possible prejudice on the contestedevidence in that case. At paragraph 18, the Court of Appeal noted that the Crown must establish that the tendered propensity evidence isrelevant to a specific issue before the Court and that the probative value of the evidence exceeds its anticipated prejudicial effect.

This ismerely a restatement of the law in effect at the time of the original trial. [42] The Crown argues that the Court of Appeal did not specify that a new approach was merited but rather that the trial judge neverengaged in the weighing process mandated by R v Handy, 2002 SCC 56, [2002] 2 SCR 908.

The Court of Appeal overturned theconviction because the trial judge failed to consider and apply the correct legal test in R v Villeda, 2010 ABCA 351, [2010] AJ No 1330. [43] The impugned evidence admitted by Kilpatrick J. was derived from an ‘Intake Questionaire’ produced during the accused’sparticipation in the Rankin Inlet Spousal Abuse Program. The Court of Appeal specifically noted that the accused had received theassurance of confidentiality about the Questionaire.

The Court concluded that much of the information about the accused was gleanedduring that process and amounted to additional evidence of bad character that was inadmissible. [44] The Crown distinguishes the impugned evidence in VanEindhoven from the prospective evidence in the case at bar. UnlikeVanEindhoven, the prospective evidence in this case pertains only to aspects of the relationship between the accused and the deceasedspouse, Tootiak. It does not contain information concerning his experiences growing up, his employment history, or his prior history ofaggression or violence with other men or partners.

Rather, the evidence tendered by the Crown is probative of and relevant to three issuesbefore the Court. First, that it demonstrates the animus held by the accused toward Tootiak. Second, it shows the deliberate nature of the

acts that directly caused her death and logically that the accused was her assailant. [ 45 ] However, prior to the commencement of oral argument, Defence counsel informed the Crown that the accused was prepared to enter a guilty plea to manslaughter and to admit that he intended to injure Tootiak but not to kill her. In other words, the sole issue at trial will be whether the accused had the intent necessary to be convicted guilty of second-degree murder. [ 46 ] The Crown argues the admissions made by the accused do not guarantee he will testify at the trial in his own defence.

As a result, the Crown cannot rely on the facts contained in the admissions about the intentions of the accused when he assaulted Tootiak. As demonstrated in the voir dire hearings, the accused made exculpatory statements claiming the death was an accident. As a result, the accused’s credibility will be a key issue and the Crown argues that the contextual evidence is necessary because ultimately it is relevant to the motive of the accused and his intentions when he assaulted Tootiak.

As noted, this type of evidence has been admitted in a number of appellate cases. [ 47 ] The Crown argues that the events on the day Tootiak died did not happen in a vacuum and out of the blue. There was a 14-year violent and dysfunctional relationship. The baggage of the relationship helps to explain what happened on the morning of June 13, 2008. The fact finder cannot exercise a truth finding function if the only evidence heard is the circumstantial evidence presented by the Crown.

The comments of Kilpatrick J. at paragraph 136 in VanEindhoven are very clear about the importance to the trier of fact of hearing this type of evidence. [ 48 ] The Crown expects the admissible evidence will reveal that the deceased died on June 13, 2008, at the Health Centre in Kugaaruk. She had been brought there by the accused and died of exsanguination from a laceration of the left femoral artery caused by two penetrating injuries of the right lower abdomen. [ 49 ] The witness Christopher Amautinuar will testify that he was at a poker game the night before with the accused and the deceased.

At some point during the evening the accused told him that he wanted to kill Roland Heisinger because “he was fucking around with Belinda.” The accused and deceased were last seen together after midnight on June 13 as they left the community gym where Belinda wanted to buy soft drinks. [ 50 ] The witness nurse Erin Ferguson will testify that she awoke to the sound of banging at the front door of the Health Centre. She went downstairs and saw the accused with blood on his hands and arms.

She noticed that the deceased had been placed on a stretcher in the emergency room and she assumed the accused had placed her there. Ferguson asked the accused what happened and he replied that she slipped in the shower. Ferguson checked Belinda and determined that she had a weak pulse, warm skin but no cardiac rhythm. The Crown expects its evidence will prove that Belinda died an extremely short time after suffering the two fatal blows to her abdomen. [ 51 ] Two other nurses, Erin Byrne and Charmaine Saunders, assisted Ferguson.

The Crown expects all three witnesses to testify that they did not observe any indicia of impairment on the part of the accused. Byrne recalls the accused saying that “she fell in the shower and I found her… she fell on a broom and I pulled it out of her stomach.” Saunders asked the accused how he got the cut on his hand and he replied that it happened when he was taking it out of her stomach. She also heard him say that they were in the shower together and she fell. [ 52 ] The Crown will tender forensic evidence that proves that the murder weapon was not a broom but a mop handle.

Forensic evidence will also establish that dynamic bloodletting incidents did not occur in the shower but in the hallway, bathroom and the entrance to the bathroom. There was also evidence of an attempted clean up in the residence. [ 53 ] The police arrived at the Health Centre shortly afterwards and arrested the accused for murder. Pursuant to my ruling on the voluntariness voir dire, the Crown will tender evidence that during the walk back to the detachment the accused uttered to Poisson that he and the deceased had been in the shower together and that she had fallen on a broken broom handle.

He later told Baines that “…she was taking a shower... and that fucking broken mop was there. It cut her stomach…” [ 54 ] In

summary, the Crown’s case is entirely based on this circumstantial evidence. Consequently, the proposed background and context evidence will be crucial to assisting the jury in deciding upon the accused’s attitude to the deceased and his motive to kill her. [ 55 ] The Crown argues that the binders of contextual evidence submitted contain numerous instances demonstrating the accused’s

jealousies about Tootiak. For example, at a poker game on the evening before the murder there is evidence that the accused stated he was angry at Roland Heissinger and wanted to kill him because he was screwing around with Tootiak. This evidence goes directly to the accused’s mindset and his motivations and intentions with Tootiak in the hours following these comments. Similarly, the proposed medical evidence demonstrates the controlling behavior of the accused toward Tootiak.

In one instance, the accused did not want her to take her medication. [ 56 ] The Crown seeks to introduce into evidence three types of contextual evidence on the history of the relationship between the accused and Tootiak. (1) the criminal record of the accused and accompanying documentation including some hearsay statements from the deceased; (2) the medical records of the deceased; (3) viva voce hearsay and non-hearsay evidence about the parties’ relationship. [ 57 ] The Crown argues that the criminal record of the accused showing nine prior assaults by the accused on the deceased and accompanying documentation including some hearsay statements from the deceased is admissible under the Misir principles.

This evidence demonstrates that the accused had a threatening and violent attitude toward the deceased. [ 58 ] The Crown argues that the medical records of the deceased are also admissible under the Misir principles because they contain both hearsay and non-hearsay evidence that will help the jury understand the long standing volatile and violent relationship between the accused and the deceased. [ 59 ] Finally, the Crown wishes to call viva voce non-hearsay and hearsay evidence from seven witnesses to provide the jury with further background and context on the volatile and violent relationship between the parties. [ 60 ] The Crown argues that this contextual evidence is particularly relevant in a domestic homicide prosecution based on circumstantial evidence because it may prove the accused had an attitude of animosity toward the deceased, had the intent to kill her, and that he was the assailant. [ 61 ] The Crown argues that the hearsay components of the proposed contextual evidence are admissible because they satisfy the requirements of Kahn. [ 62 ] The Crown argues that statements given by the deceased to the police that led to the criminal convictions of the accused for assaulting the deceased are trustworthy in accordance with the Kahn test for the following reasons: • because the violence was reported by the complainant; • her reports to nurses, police, and social workers were spontaneous and not the result of coercion or influence of third parties; • the statements were not tainted by leading questions; • the accused pleaded guilty to the offences; • the allegations were supported by the observations made by the police of her demeanor; • the photographs taken by the police corroborate her statement; • she sought medical assistance; • because the deceased had no expectations of material gain; • because the deceased wanted the physical and mental abuse to stop as attested to by her family, friends, and health care providers; • she was reluctant at times to even report the abuse; • she refused to testify on two occasions. [ 63 ] The Crown submits that the hearsay evidence found in the medical records is admissible under the Kahn principles.

The hearsay comments must be weighed against the circumstances surrounding each visit to the local Health Centre where the comments were made. Evidence of the deceased’s state of mind at these times is not subject to exclusion because it is relevant and probative to establish a possible animus on the part of the accused towards the deceased.

[ 64 ] The proposed evidence from the seven witnesses includes a substantial amount of non-hearsay evidence.

The Crown argues that this evidence provides indicia of reliability and circumstantial trustworthiness for the hearsay evidence that accompanies the non-hearsay evidence because of the following: • the abuse reported by the deceased to the police was consistent with the nature and extent of the injuries and distress they recorded and photographed; • the abuse reported by the deceased to health care professionals was consistent with the nature and extent of the injuries and distress observed and recorded by them including extensive and repeated bruisings, lacerations, swelling, bite marks and a broken nose; • the abuse reported by the deceased to family members and friends was consistent with the injuries that they observed themselves; • the fact of her reported appearances at the Health Centre at night with suicidal ideation, and the lack of women’s shelters, was consistent with her reports that the accused had thrown her out of the home and that she had nowhere to go; • the fact of the deceased’s frequent visits to her sister’s residence, at all hours of the day and night and in various states of dress was consistent with the reported physical and mental abuse she said she was suffering; • the repeated and consistent refusals by the deceased to heed the advice of family, friends and professionals to leave the relationship is consistent with the repeated explanations she is said to have given for remaining in the relationship: that she loved the accused and wanted the relationship to work for her children to have a father. [ 65 ] Furthermore, there is no evidence of any coercion by third parties on the deceased for her to report the abuse to family, friends, health care practioners, police, or social workers.

Nor is there any evidence that she had any expectation of material gain or recompense for having made these reports. As the deceased emphasized time and again, she wanted the abuse to end because she loved her spouse and wanted her children to have a father. (ii). Defence argument [ 66 ] The accused argues that it is important to remember that the Crown has the burden of proving that the contextual evidence is relevant to an issue at trial. The accused admits that he was the assailant and will plead guilty to manslaughter.

He also admits that his actions were deliberate and intentional in the sense that he intended to injure Tootiak but not to cause her death. [ 67 ] The Crown’s initial and supplemental written submissions fail to specify how the contextual evidence will prove motive. The accused is not claiming the assault was accidental. Because of the admissions made by the accused, the only issue at trial will be whether the accused had the specific intent for second-degree murder and any evidence directed to prove animus is not relevant. [ 68 ] The issue of specific intent relates to evidence at the exact moment of the act.

Evidence of animus at prior times in the relationship years before is not probative and is highly prejudicial to the accused. In addition, none of the evidence that the Crown seeks to tender is contemporaneous with the offence before the Court. In R v Dupras, 2000 BCSC 1128 , [2000] BC J No 1513 [Dupras] , Satanove J. held that evidence of expressions of malice, animosity or murderous intent are relevant to a charge of second-degree murder. However, she noted that such evidence must be placed in context.

She noted the prior incident relied on in that case was nearly seven months before the commission of the offence and in the meantime there were a number of intervening events, particularly an attempt at reconciliation. As a result, the nexus between the past incident and the actions of the accused on the date of the murder were tenuous and the Crown could not show a continuing animus.

She noted that since identity was not an issue, the evidence of threats and statements made closer to the date of the murder had much more probative relevance to the single issue in that case that concerned the accused’s intention at the time he killed his victims. Similarly, in the case at bar, the relationship went through its ups and downs over its 14 years. The animus was intermittent and not contemporaneous with the murder.

While there were many violent incidents they were broken by periods of reconciliation. [ 69 ] Defence counsel distinguished all the cases relied on by the Crown because in those cases specific intent was not the probative issue. In all of those cases, except McCotter, the accused did not admit the actus reas of the offence charged. In McCotter , a key issue was whether the accused was criminally responsible because of a mental disorder and it is distinguishable on that ground. [ 70 ] Animus is a relevant issue if the identity of the accused is an issue or if the accused raises a defence of accident. The accused

admits he assaulted Tootiak and is not claiming her injuries were the result of an accident. In any event, the animus evidence tendered by the Crown relates to the years before Tootiak’s death and there is no evidence of animus on the date she died. The Crown will have a difficult time proving a continuing animus. There is no evidence that the accused contemporaneously or historically threatened Tootiak. There are no similar convictions of assault with a weapon such as a knife that resulted in a stabbing and no charges for attempted murder. There is no history of murderous behavior.

Rather, the history shows a violent spousal relationship similar to what occurred in Dupras and the comments of Satanove J. are also applicable to this case. [ 71 ] If this Court accepts the logic advanced by the Crown, then any person accused of murder with prior related convictions or a history of unreported violence would be unable to plead guilty to manslaughter. [ 72 ] The accused acknowledges that motive is relevant to proving specific intent. However, there is no evidence in the five volumes of evidence prepared by the Crown or in the written submissions that point to a motive to kill Tootiak.

The Crown submissions mention some evidence of jealousy and the threat to kill Roland Heissinger. They boil down to a theory that because the accused assaulted Tootiak in the past he had a motive to kill her on the night of the murder. This reasoning leads to the slippery slope of concluding that anyone with a prior history of convictions for violence or even unreported violence could have a motive for murder. This would make Nunavut a very dangerous place to live, given the level of domestic violence in the territory.

In applying this reasoning this Court should consider how many assaults equal a motive for murder. [ 73 ] Applying this logic comes dangerously close to effectively reversing the presumption of innocence for those persons with criminal convictions for violence against the person murdered. [ 74 ] The accused argues that the context evidence is nothing more than volumes of distraction for the fact finder. It is just bad character evidence wrapped up to look like background and context. The Crown has tendered the volumes of evidence and is asking the fact finder to muddle through it and hopefully find a motive.

It is similar to firing a shotgun against a target hoping that one of the pellets will find it. [ 75 ] The prejudice to the accused of admitting this evidence far outweighs the low probative value of the evidence. The past history of the accused certainly sheds light on his character but does not shed any light on his motive on the night of the murder. [ 76 ] The accused also argues that the hearsay component of the proposed evidence does not meet the Kahn requirements. (iii).

Crown reply [ 77 ] The Crown pointed out in reply that there is a significant amount of recent evidence of the violence in the relationship. Going back two years from the date of the murder the Crown identified 20 incidents where Tootiak reported to the Health Center complaining about injuries caused by the accused. As a result, it is not difficult to understand that the Crown can easily prove a violent, controlling, abusive, and continuingly dysfunctional horror show for 14 years ending with the threat to kill Roland Heissinger the night before the murder.

The evidence tendered is immensely probative to what was going on in the mind of the accused when he stabbed Tootiak twice with a broken mop. III. ANALYSIS [ 78 ] The Crown described the evidence it wants to have admitted at the trial of the accused as background and context evidence. A better description derived from the purpose of this type of evidence in a criminal prosecution is to call it propensity evidence.

At paragraphs 105 and 106 of VanEindhoven, Kilpatrick J. described it as follows: Detailed evidence of other acts of misconduct by a citizen accused of a crime is generally not admissible in a criminal trial. This type of evidence, called propensity, or similar fact evidence, has long been recognized to have great potential to prejudice a citizen's right to a fair trial. It has great potential to distract and confuse the trier of fact with a multiplicity of issues unrelated to the matter at hand. It has great potential to consume significant amounts of court time on peripheral issues.

Propensity reasoning involves the inference that a citizen who has a propensity or disposition to do a particular crime must have done theactual crime that is alleged. If used improperly, this type of reasoning can seriously erode any presumption of innocence. If usedindiscriminately, it can poison the mind of a trier of fact and make adjudicative objectivity much more difficult to achieve. [79] As outlined in R v Batte, (ON CA), [2000] OJ No 2184, 49 OR (3d) 321 [Batte], propensity reasoning involvestwo inferences.

First, a judge or jury can infer from conduct on occasions other than the occasion in issue that a person has a certaindisposition or state of mind. Second, the trier can infer from the existence of that disposition that a person acted in a certain way on theoccasion in issue. If the evidence supports both inferences it is a form of circumstantial evidence and is relevant. [80] However, despite its relevance, evidence that depends on propensity reasoning for its admissibility is usually excluded because itspotential prejudicial effect outweighs its probative value.

In some cases the evidence has little probative value because either or both ofthe necessary inferences needed to give the evidence probative force are tenuous. An example of one such situation would be where aninference that the accused has a certain disposition is drawn from a single previous discreditable act. [81] Where the discreditable conduct is such as to permit the inferences to be drawn it must be carefully weighed because of the muchgreater potential to improperly prejudice the fact finder against the accused.

As Doherty J.A. observed in Batte: A jury may assume from the evidence of discreditable conduct that the accused is a bad person and convict on that basis, or they mayconvict in order to punish the accused for the discreditable conduct, or they may become embroiled in a determination of whether theaccused committed the alleged discreditable acts and lose sight of the real question -- did he commit the acts alleged in the indictment? [82] As noted in Batte, there are situations where the probative force of propensity reasoning is so strong that it overcomes the potentialprejudice and cannot be ignored if the truth of the allegation is to be determined.

This level is reached where the evidence suggests astrong disposition to do the very act alleged in the indictment. For example, where an accused is charged with assaulting his wife,evidence that the accused beat his wife on a regular basis throughout their long marriage would be admissible. Evidence of the priorbeatings does much more than suggest that the accused is a bad person or that the accused has a general disposition to act violently andcommit assaults. The evidence suggests a strong disposition to do the very act in issue of assaulting his wife.

In such cases, the factfinder is permitted to reason that the accused was disposed to act violently towards his wife and that he had that disposition on theoccasion in issue.

The existence of the disposition is a piece of circumstantial evidence that may be considered in deciding whether theaccused committed the alleged assault. [83] The admissibility of prior assaults as evidence that the accused assaulted the same person on the occasion in issue is wellestablished in the authorities, e.g., R v F (DS), (1999), (ON CA), 43 OR (3d) 609, 132 CCC (3d) 97 (CA). [84] These principles were applied in Misir, Peterffy, Cudjoe, McCotter, and Van Osselaer. [85] In Misir, the accused was convicted by a jury of second-degree murder for stabbing his deceased wife to death.

The trial judgeadmitted evidence from various members of the deceased’s family as well as some of her co-workers. The evidence indicated that theaccused had physically and verbally abused the deceased and that the deceased had talked to family and her co-workers about herdissatisfaction.

In holding that the trial judge had not erred in admitting this evidence, Proudfoot J. approved of the following statementsmade by Cumming J. at paragraphs 25 and 29 of Peterffy: There was but one central issue in this trial, namely, had the prosecution proved beyond a reasonable doubt that the appellant murderedJaclynn Patterson. The ultimate aim of the trial was to ascertain the truth of that allegation. The relevance of evidence must in part bedetermined by the context within which the principal events took place.

The context in this case was the domestic relationship of theappellant and the deceased. […] The evidence of discreditable conduct objected to by the appellant was both relevant and material. It was relevant in that it pointed to thethreatening and violent attitude of the appellant, at times, towards the deceased. It was material in that it provided evidence of motive,namely, anger at the deceased's taunting and disobedience. It was also relevant and material to the appellant's intent and to ensure that thejury had an accurate picture of the appellant's relationship with the deceased. See: R. v.

F.(D.S.) (1999), (ON CA),

132 C.C.C. (3d) 97 at p. 105 . [ 86 ] In Misir , the identity of the person who committed the murder was an issue and Proudfoot J. noted that there was other evidence to support the jury’s verdict. It came from the younger brothers of the deceased who testified that the accused had a key to the deceased’s apartment and used it to enter the apartment twice in the month before the murder.

As a result, the history of the relationship evidence was relevant in supporting the other evidence that pointed to the accused as being the murderer. [ 87 ] 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 the evidence exceeds its prejudicial effect. As noted at a paragraph 111 of VanEinhoven, the probative value of the propensity evidence cannot be assessed in a factual vacuum.

The evidence must assist with the determination of a live issue that must be decided by the trier of fact. The legal issues in this trial turn on the factual allegations found in the indictment and on any defences reasonably anticipated to arise on the evidence heard to date. [ 88 ] When the Crown prepared its written submissions it assumed that the identity of the accused was in issue. It also assumed from the statements made by the accused that he was going to raise a defence of accident.

The Defence conceded in oral argument that the accused admits that he was the person who killed the deceased and that it was not an accident. It was an intentional action that satisfied the test for manslaughter. In other words, the accused set in motion the chain of causation that led to Tootiak’s death. [ 89 ] I am satisfied that these admissions remove much of the relevance of the evidence tendered by the Crown based on the Misir reasoning. Misir, Peterffy, Cudjoe, McCotter, and Van Osselaer are distinguishable because in those cases the identity of the accused was a live issue.

What is left is whether there is anything in the voluminous evidence tendered by the Crown that is relevant to the specific intent of the accused to commit second-degree murder. [ 90 ] I agree with Defence counsel that there is nothing in the Crown materials that is relevant to a motive. The Crown theory amounts to an argument that because the accused assaulted the deceased in the past he had a motive to kill her. This reasoning leads to the slippery slope of concluding that anyone with a prior history of convictions for violence or even unreported violence could have a motive for murder.

It raises the concerns expressed in Batte that the prejudice to the accused outweighs the probative value of the evidence. [ 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. [ 92 ] In Dupras , the accused killed his estranged wife and her boyfriend by running them down with his pick-up truck as they walked alongside a road in Tumbler Ridge, British Columbia on May 20, 1999. He was charged with two counts of second-degree murder. A jury at Dawson Creek convicted him of the second-degree murder of his wife and the manslaughter of her boyfriend.

His defence was that he lacked the intent required for second-degree murder. [ 93 ] Mr. and Mrs. Dupras had been married for 17 years and had a son, Ryan, aged 12 at the time of the offence. They separated in the summer of 1998 at the instance of Mrs. Dupras. The marriage breakdown caused the appellant to go into a serious depression. He sought medical help and received prescriptions for anti-depressants.

In the late summer and early fall of 1998, he attempted suicide on three occasions, each time consuming alcohol with an overdose of his prescription medication resulting in hospitalization as a psychiatric patient. The couple attempted reconciliation by taking a holiday together in Mexico in February 1999 but Mrs. Dupras broke it off shortly after their return. The Crown, in that case, argued that the jury should hear evidence that the accused had been convicted of assaulting Mrs.

Dupras on May 9, 1998, and that on May 4, 1999, the appellant became angry with his wife for leaving their son with him without prior arrangement while she went away for a weekend. He telephoned his wife's sister, who testified that he was angry and said he would kill his wife. [ 94 ] Satanove J. refused to admit the evidence of the prior assault but admitted the evidence of the threat. She noted that the assault took place seven months before the commission of the offence and that there had been an intervening reconciliation.

As a result, the connection between the assault and the May 20 killings was tenuous because the Crown could not show a continuing animus. On the other hand, the evidence of the threat was made closer to the date of the killings and had much more probative value. At paragraph 12 she stated:

Keeping in mind that there was no issue of identity here, the evidence of threats and statements made closer to the time of the homicides had much more probative relevance to the single issue in this case, which was the accused’s intention at the time he killed his victims. [ 95 ] Satanove J.’s rationale is equally applicable to this case where the only issue is the intention of the accused at the time he killed his spouse. The accused and the deceased had a long dysfunctional relationship with many assaults and numerous reconciliations.

As noted at paragraph 102 in Batte , if the accused was charged with assault, then the prior convictions and other contextual evidence would be relevant because: Evidence of the prior beatings does much more than suggest that the accused is a bad person or that the accused has a general disposition to act violently and commit assaults.

The evidence suggests a strong disposition to do the very act in issue -- assault his wife. [ 96 ] However, the marital history and prior assaults are irrelevant to a charge of second-degree murder unless they shed some light on the intention of the accused on the night of the murder. In Dupras , Satanove J. found Dupras ’s threat to kill his wife two weeks prior to the murder was relevant to the accused’s intent on the night he killed her and her boyfriend.

In the case at bar, the medical records tendered by the Crown demonstrate an acceleration in the violence of the relationship starting in 2006 and including one threat to kill, which occurred on September 15, 2007. The medical record states as follows: A fight started between Belinda & her partner Bruce. She states he began to punch her to the head, her arms and her legs. Also hitting her arms. She defended herself by fighting back. She states that she did not black out but after crying she think she did. States he threatened her w [sic] a gun that he was going to kill her and the two boys.

She says he brought the gun to the living room where I was put on the floor. At that point she ran out of the house and went to a neighbor’s home. They called the RCMP who then brought her to the Health Centre. IV. CONCLUSION [ 97 ] I am satisfied that this evidence is relevant and could indicate a new and elevated animus by the accused to the deceased.

The record is admissible under section 26(1) of the Canada Evidence Act, RSC 1985, c C-5 , because health care professionals made the entry in the usual and ordinary course of business with the expectation that the notations would be accurate, and the Crown provided notice to the Defence. It contains both hearsay and non-hearsay statements. The non-hearsay statements on the observations of the injuries and the demeanor of the deceased are admissible under

section 26. Although the statements quoted above are hearsay, I am satisfied that they are reliable and necessary under the Kahn principles because they accompany the non-hearsay evidence and there is no evidence of any coercion by third parties on the deceased to report the abuse. There is also no evidence that the deceased had any expectation of material gain in making the report. [ 98 ] From September 15 to May 10, 2008, there were 15 additional entries by the health care professionals that contain relevant hearsay and non-hearsay statements.

While they were not threats to kill, they constitute evidence that is relevant to the determination of whether the accused had the intent required under

section 229 (

b) of the Criminal Code . That

section contains a recklessness component and this evidence sheds some light on that issue and whether the accused had a continuing animus toward the deceased.

It states: where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being. [ 99 ] These records contain a mixture of observations on the injuries noticed by the nurses, discussions about alcohol treatment, strategies to leave the accused and the emotional state of the deceased including thoughts about suicide because of the abuse she suffered.

I am satisfied that there is enough evidence to satisfy the continuing animus argument advanced by the Crown. Although the evidence about the accused’s discreditable conduct is prejudicial to him, its significant probative value and the close nexus to the date of the death of the deceased outweighs the prejudice. All of the entries are admissible at the trial. [ 100 ] The criminal information on September 15, 2007, and accompanying documentation is also admissible because it has a close nexus to the date of the death of the deceased.

The time, date, and charge associated with the other convictions are admissible to give a complete picture, but all of the other information is not admissible.

[ 101 ] It is difficult to pin down some of the timelines in the statements of the witnesses that the Crown wishes to call to give context evidence. I am satisfied that some of the evidence is relevant to the issue of the continuing animus of the accused because it gives context to the relationship and both parties’ attitudes about the relationship and the other partner. It also provides evidence of dysfunctional and controlling behavior, jealousies, substance abuse and attempts at separation. However, the relevance of the evidence decreases as it moves away from the September 15, 2007 date.

When calling the evidence, the Crown should restrict it to the period from September 15, 2007, to the date of the death of the deceased. If the Crown wishes to call evidence before that date it will be necessary to conduct an additional voir dire at trial and for the trial judge to make a further ruling at trial. While the evidence from after September 15, 2007, is prejudicial to the accused, that prejudice is outweighed by the evidence’s probative value. Dated at the City of Iqaluit this 16th day of January, 2013 _____________________ Earl D. Johnson, Justice Nunavut Court of Justice