R v Kolola, 2013 NUCA 08

In the Court of Appeal for/of Nunavut Citation: R v Kolola, 2013 NUCA 08 Date: 20131010 Docket: 08-10-003 CAP Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - Pingoatuk Kolola Appellant _______________________________________________________ The Court: The Honourable Madam Justice Constance Hunt The Honourable Mr. Justice Clifton O'Brien The Honourable Mr. Justice Frans Slatter _______________________________________________________ Memorandum of Judgment Appeal from the Conviction by The Honourable Mr.

Justice Kilpatrick Dated the 1st day of March, 2010 (Docket: 09-07-56) _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: [ 1 ] The appellant, Pingoatuk Kolola, was convicted of first degree murder for killing a police officer and was sentenced to life imprisonment without the possibility of parole for 25 years. He appeals his conviction and seeks a new trial. [ 2 ] The basic facts are not in dispute. The appellant lived in the hamlet of Kimmirut with his common law wife, Ooleetua Judea, and their infant son.

On November 7, 2007 the appellant discovered his common law wife was seeking to have him evicted from their home. The appellant became angry and began to drink. Sometime later, he ordered Ooleetua out of the home and told her to leave the baby behind. He threatened her, and warned her not to call the police. [ 3 ] Soon after Ooleetua left, the appellant grabbed his Remington .30-06 rifle, and his son, and drove off with both in a truck. A series of violent confrontations followed with both his common law wife and his niece.

A neighbour viewing these events called the police. [ 4 ] Constable Scott responded to the call. Various members of the community had observed the appellant driving around in the truck and they directed Constable Scott to the local arena. As the police officer approached the arena, the appellant drove his truck onto a stack of lumber at an adjacent construction site and got stuck. He exited the vehicle, weapon in hand. When the approaching police vehicle stopped, the appellant shot at it and Constable Scott was hit in the forehead.

He died instantly. [ 5 ] The appellant returned to his house where he tried to hide the empty shell casing. He called his employer who came and retrieved the child. By 3:00 AM a SWAT team from Iqaluit was in position around the appellant’s house and he was arrested without further incident. [ 6 ] The appellant was charged with first degree murder pursuant to section 235(1) of the Criminal Code . He elected trial by jury. The appellant admitted four of the five requirements under section 231(4) of the Code which sets out the requirements of first degree murder when the victim is a police officer.

He admitted he had fired the fatal shot, all the while knowing that Constable Scott was a police officer carrying out his lawful duties. He submitted, however, that he had been suicidal and had not intended to kill the policeman. He sought conviction for manslaughter only. After being instructed in the law, the jury deliberated for four days before finding the appellant

guilty of first degree murder. [7] The appellant raises three grounds of appeal with respect to the jury charge. He submits the trial judge erred in law in his instructionsto the jury by suggesting that an absence of intent was a defence, thus implying there was a burden on the appellant to prove an elementof the offence.

He also submits the trial judge erred in his WD instruction by misstating the second element, and by Page: 2 stating the appellant could be found to intend the natural consequences of his actions, thereby compromising the WD instruction: R vW(D), (SCC), [1991] 1 SCR 742. [8] Dealing with the first ground of appeal, we acknowledge that the trial judge did suggest to the jury, on one occasion, that a lack ofintent might constitute a defence.

We agree with the Crown, however, that the jury could not have been under any misapprehensionabout the Crown’s duty to prove intent beyond a reasonable doubt when the jury charge is read as a whole. The charge is replete withreferences to the Crown’s duty to prove all the elements of the offence beyond a reasonable doubt, and when the trial judge reached thepoint in his charge where he was dealing specifically with the issue of intent he stated the correct test three times. He told the jury: The Crown must prove beyond a reasonable doubt either that Mr.

Kolola meant to kill Douglas Scott when he fired his rifle at the policevehicle or that Mr. Kolola meant to cause Douglas Scott bodily harm that he knew was so serious and so dangerous that it was likely tokill him and he proceeded to pull the trigger on his rifle despite his knowledge of this risk. Now please understand that the Crown does not have to prove the Mr. Kolola had both these intentions. Proof of either state of mind issufficient for murder. All of you do not have to agree that Mr.

Kolola had the same intent as long as each one of you is satisfied that oneof the other intent has been proven beyond a reasonable doubt. I repeat once again, ladies and gentlemen, the Crown must prove either Mr. Kolola meant to kill Douglas Scott when he fired his rifle orthat Mr. Kolola meant to cause Douglas Scott bodily harm that he knew was so serious and so dangerous that it was likely to kill, and heproceeded to pull the trigger despite his knowledge of the risk. [AB 586-587] [9] The trial judge reiterated this theme on two more occasions when dealing with the issue of intoxication [AB 592, 594-95].

In ourview, therefore, there is no likelihood that the jury would have been confused about the Crown’s duty to prove intention beyond areasonable doubt. [10] The appellant’s second ground of appeal is that the trial judge erred in his WD instruction by not articulating the second elementproperly. The second element of the charge suggested in WD is this: if you do not believe the testimony of the accused but you are left inreasonable doubt by it, you must acquit.

The Supreme Court has made clear in subsequent cases that the formula set out in the WD caseis not a precise mantra, R v CLY, 2008 SCC 2, [2008] 1 SCR 5 at paras 7-9. We have reviewed the trial judge’s WD instruction and findthat it complies in substance with the formula set out in WD. We conclude, therefore, that there is no merit to this ground of appeal. [11] The appellant’s final ground of appeal is that the trial judge compromised the WD instruction by stating that a person can be foundto intend the natural consequences of his acts.

This argument, although listed as a ground of appeal in the appellant’s factum, was notargued further. In any event, we see no basis for concluding that there was any error in this regard given our reading of the trial judge’scharge, including his WD instruction. Consequently, this ground of appeal must also be dismissed. Page: 3 [12] In

summary, the appeal is dismissed. Appeal heard on September 24, 2013 Memorandum filed at Iqaluit, Nunavut this day of October, 2013 Hunt J.A. O’Brien J.A. Authorized to sign for: Slatter J.A. Page: 4 Appearances: N.E. Devlin for the Respondent T.H. Boyd for the Appellant