2021 QCCQ 11838, 2021 QCCQ 11838

R. c. Elijassiapik 2021 QCCQ 11838 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ABITIBI LOCALITY OF INUKJUAK “Criminal and Penal Division” Nos.: 640-01-041654-188, 640-01-041655-185 DATE: October 29, 2021 ______________________________________________________________________ PRESIDING: THE HONOURABLE JEAN-PIERRE GERVAIS, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v.

JOSHUA ELIJASSIAPIK Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On December 27, 2018, the police in the community of Inukjuak received a call that a man, possibly armed, intends to attack his spouse. A large-scale intervention, which lasted several hours, followed and resulted in Mr. Elijassiapik’s arrest, detention, and indictment on the 24 following counts: [ 2 ] File 640-01-041654-188: 1.

On or about December 27, 2018, in Inukjuak, district of Abitibi, did use a firearm, to wit: a shotgun in a careless manner or without reasonable precautions for safety of the other persons, committing thereby the indictable offence provided by section 86(1)

(3) a) of the Criminal Code . 2. On or about December 27, 2018, in Inukjuak, district of Abitibi, did carry or possess a weapon for a purpose dangerous to the public peace, committing thereby the indictable offence provided by section 88(2)

a) of the Criminal Code . 3. On or about December 27, 2018, in Inukjuak, district of Abitibi, did intentionally discharge a firearm while being reckless as to the life or safety of another person, committing thereby the indictable offence provided by

section 244.2(1)

b) et (3)

b) of the Criminal Code . 4. On or about December 27, 2018, in Inukjuak, district of Abitibi, did knowingly utter a threat to cause death or bodily harm to Dora Ningiuk, committing thereby the indictable offence provided by

section 264.1(1) a)(2)

a) of the Criminal Code . 5. On or about December 27, 2018, in Inukjuak, district of Abitibi, in committing an assault on Dora Ningiuk, did use a weapon, committing thereby the indictable offence provided by

section 267a) of the Criminal Code . 6. On or about December 27, 2018, in Inukjuak, district of Abitibi, in committing an assault on Dora Ningiuk, did cause bodily harm to the said person, committing thereby the indictable offence provided by

section 267b) of the Criminal Code . 7. On or about December 27, 2018, in Inukjuak, district of Abitibi, did break and enter in a dwelling-house situated at House # 399-A and therein did commit an indictable offence, to wit: assault causing bodily harm, committing thereby the indictable offence provided by section 348(1) b)

d) of the Criminal Code . 8. On or about December 27, 2018, in Inukjuak, district of Abitibi, did point a firearm at Maxime Vallée, committing thereby the indictable offence provided by section 87(2)

a) of the Criminal Code . 9. On or about December 27, 2018, in Inukjuak, district of Abitibi, with intent to wound, maim or disfigure a person, did discharge a firearm at Maxime Vallée, committing thereby the indictable offence provided by section 244(2)

a) of Criminal Code . 10. On or about December 27, 2018, in Inukjuak, district of Abitibi, with intent to endanger the life of any person, did discharge a firearm at Maxime Vallée, committing thereby the indictable offence provided by section 244(2)

a) of the Criminal Code . 11. On or about December 27, 2018, in Inukjuak, district of Abitibi, with intent to prevent the arrest or detention of any person, did

discharge a firearm at Maxime Vallée, committing thereby the indictable offence provided by section 244(2)

a) of the Criminal Code . 12. On or about December 27, 2018, in Inukjuak, district of Abitibi, did attempt to murder Maxime Vallée, by using a firearm, committing thereby the indictable offence provided by section 239(1) a), of the Criminal Code . 13. On or about December 27, 2018, in Inukjuak, district of Abitibi, did confine, imprison or forcibly seize Joanassie Ningiuk, committing thereby the indictable offence provided by section 279(2)

a) of the Criminal Code . 14. On or about December 27, 2018, in Inukjuak, district of Abitibi, did commit an assault on Joanassie Ningiuk, committing thereby the indictable offence provided by

section 266a) of the Criminal Code . 15. On or about December 27, 2018, in Inukjuak, district of Abitibi, did knowingly utter a threat to cause death or bodily harm to Joanassie Ningiuk, committing thereby the indictable offence provided by

section 264.1(1) a) (2)

a) of the Criminal Code . 16. On or about December 27, 2018, in Inukjuak, district of Abitibi, did use a firearm while committing an indictable offence, to wit: forcible confinement, committing thereby the indictable offence provided by section 85(1) a) (3) of the Criminal Code . 17. On or about December 27, 2018, in Inukjuak, district of Abitibi, did point a firearm at Angie Inukpuk, committing thereby the indictable offence provided by section 87(2)

a) of the Criminal Code . 18. On or about December 27, 2018, in Inukjuak, district of Abitibi, did point a firearm at Putu Qumarluk, committing thereby the indictable offence provided by section 87(2)

a) of the Criminal Code . 19. On or about December 27, 2018, in Inukjuak, district of Abitibi, did knowingly utter a threat to cause death or bodily harm to Angie Inukpuk, committing thereby the indictable offence provided by

section 264.1(1) a) (2)

a) of the Criminal Code . 20. On or about December 27, 2018, in Inukjuak, district of Abitibi, did confine, imprison or forcibly seize Angie Inukpuk and Putu Qumarluk, committing thereby the indictable offence provided by section 279(2)

a) of the Criminal Code . 21. On or about December 27, 2018, in Inukjuak, district of Abitibi, did break and enter in a dwelling-house situated at House # [...] and therein did commit an indictable offence, to wit: pointing a firearm, committing thereby the indictable offence provided by section 348(1) b)

d) of the Criminal Code . 22.

On or about December 27, 2018, in Inukjuak, district of Abitibi, did, being at large on a recognizance entered into before a justice or a judge in the file(s) 640-01-040878-184 fail to comply with a condition therein, to wit not possess or carry, for any reason, offensive or restricted weapons, or imitation weapons, including starting pistols and pellet guns, firearmes, cross-bows, prohibited weapons, restricted weapons, prohibited devices, ammunition, prohibited ammunition, explosive substances, knives (execpt in restaurants and for a legitimate purpose) or edged weapons, except for hunting while he was bound to do so, committing thereby the indictable offence provided by section 145(3)

a) of the Criminal Code . 23. On or about December 27, 2018, in Inukjuak, district of Abitibi, did, being at large on a recognizance entered into before a justice or a judge in the file(s) 640-01-040878-184 fail to comply with a condition therein, to wit not drink any alcoholic beverages or have them in my possession while he was bound to do so, committing thereby the indictable offence provided by section 145(3)

a) of the Criminal Code . [ 3 ] File 640-01-041655-185: 1. On or about December 27, 2018, in Inukjuak, district of Abitibi, did commit a mischief in relation to property the value of which did not exceed 5000,00$ to wit : a phone and a coffee maker, committing thereby the indictable offence provided by section 430(1) a)

(4) a) of the Criminal Code . [ 4 ] The events of the day can be divided into three episodes; the first concerns a violent incident against the accused’s spouse, the second is about the use of a firearm when the police officers arrived, and the third, the forcible confinement of two individuals in their residence. [ 5 ] These are the basic elements of this rather particular case, which required a trial that lasted several days. [ 6 ] On a cold December day in 2018, Mr. Elijassiapik went to the home of the parents of Ms. Dora Ningiuk, his girlfriend at the time, at around 9 a.m. He went to Ms.

Ningiuk’s bedroom and woke her up, hitting her in the stomach. [ 7 ] He left but returned shortly thereafter. An argument then started when they were both in the living room with Ms. Ningiuk’s father, Mr. Joanassie Ningiuk. [ 8 ] The accused hit his spouse in the head. He then yanked the telephone from the hands of her father, who wanted to call the police. [ 9 ] He threw a shelf at Ms. Ningiuk then grabbed Mr. Ningiuk who was trying to flee, dragged him to the ground and hit him. [ 10 ] Mr. Elijassiapik then went to the kitchen where he grabbed and threw many items at Ms. Ningiuk, without hitting her however.

He then said: “I can shoot you, I can kill you”. [ 11 ] With these words, he left. A short time later, Ms. Ningiuk’s father came back with the police, whom he had been able to call by going to a neighbour’s house. The series of events was explained to the officers who, after recommending that the occupants of the house stay in the apartment next door, left to find Mr. Elijassiapik. [ 12 ] Ms. Ningiuk, like her father, saw the accused returning to the residence shortly thereafter, holding a firearm. From the window,

he was seen 40 or 50 metres away, firing a shot into the snow and then placing the barrel in his mouth. They hid, remaining silent, and then lost sight of the accused. [ 13 ] Ms. Ningiuk did not see him again before that evening, when he was in a cell in the Inukjuak police station. [ 14 ] As for Mr.

Elijassiapik’s state at the time of the events, both witnesses thought he was under the influence of alcohol without, however, being able to specify his degree of intoxication. [ 15 ] The second episode unfolded outside and involved the accused and Officers Maxime Vallée and Pierre-Olivier Beaugrand. [ 16 ] The first officer explained that on the day in question, they received a call at around 10:20 a.m. seeking the assistance of police because Mr. Elijassiapik was assaulting his spouse at the time.

The officers got into their police vehicle, a Ford F-150 extended cab, four-door pickup truck. [ 17 ] They first went to the complainants’ home and after obtaining their version, they went to look for the individual. They found him quickly, walking behind the houses that line that street.

It should be noted that the environment, like most of the territory of Nunavik, is completely bare of any tall vegetation and that a hard layer of snow covered the ground. [ 18 ] Therefore, other than the surrounding buildings, which are most often single or two-family homes behind which there is often a shed, there is nothing obstructing the view. [ 19 ] While still at the wheel of his vehicle, Officer Vallée claims that about 50 metres away, he saw a man carrying a firearm walking toward the house of Ms. Ningiuk. He turned around, parked, drew his weapon, and walked toward Mr.

Elijassiapik, whom he recognized, and who began to walk faster. [ 20 ] At one point, the accused put the barrel of the weapon in his mouth and did not obey the order he was given to throw the gun to the ground. [ 21 ] While his partner continued to follow the accused, at a certain distance, he returned to the vehicle to move closer. He drove forward a few houses then stopped in the street. [ 22 ] He was still in the vehicle when his partner, whom he did not see, told him on the radio [ translation ] “he’s aiming at you”. At the same time, at a distance that he estimates to be about 50 metres, he saw Mr.

Elijassiapik aiming in his direction. He got out of the vehicle, slipped and fell to the ground next to the driver’s side door. When he got on his knees, facing the left side of the vehicle, he heard two shots fired in close succession.

It was then that he moved to the back of the vehicle and seeing the accused, who was still aiming in his direction, quickly withdrew. [ 23 ] At that point, he did not know where Officer Beaugrand was because he was probably behind one of the houses. [ 24 ] He himself went around a home on the other side of the road to seek cover, but once behind a shed, in a flash, he saw another man about 10 metres away he could not identify, but who was holding something. Fearing that it was the accused looking for him, he hid on the porch of a house.

There, he called his partner who told him he was fine but that he had lost sight of the suspect. [ 25 ] He found him a few moments later, four houses from his location. It was then that the reinforcements called earlier started to arrive and that the Sûreté du Québec took charge of the operation remotely. [ 26 ] The officers then learned from Angie Inukpuk that Joshua Elijassiapik had entered her home, taking its occupants hostage, but that they had been able to escape.

According to her, the accused was still there. [ 27 ] Officer Vallée positioned himself in a neighbouring house from where he could see where the suspect was hiding. The suspect gave no sign of life and did not answer the calls to surrender made by megaphone. [ 28 ] At around 2 p.m., another individual arrived, Saumic Epoo, who did ignore the police officers. He went up the steps and entered the house. He later came out with a weapon that he threw into the snow and said that Mr.

Elijassiapik was ready to surrender before adding that there were no other weapons in the house. [ 29 ] He ignored the order he was given not to go back inside and, once there, drew the curtains thereby depriving the officers of the view they had before. [ 30 ] He came back out later asking for a telephone so that Mr. Elijassiapik could communicate with them and surrender. Because there was no such available portable device, the request could not be granted, but at around 4 p.m., Mr.

Epoo, who was still acting as a go-between, indicated that the accused was ready to surrender, which he did at 4:30 p.m. [ 31 ] At that point he was arrested and driven to the police station using the same vehicle in which the officers had arrived. [ 32 ] It was only there that Officer Vallée noticed that the pick-up’s left rear door window had been partially shattered. Assuming that this could be the result of a shot fired at him, he looked for a projectile among the glass debris, without finding one. He also did not see any casings, although he did not return to the scene to search for them.

He does not know whether anyone did. [ 33 ] The testimony of Sergeant Vallée was followed by the one of his partner at the time, Mr. Pierre-Olivier Beaugrand. With respect to the first moments of the intervention, his testimony is the same as that of his colleague. He added that, personally, as soon as he saw a man behind the houses, he recognized, in spite of the distance, Joshua Elijassiapik and saw that he was holding a short-barreled weapon with a wooden buttstock. [ 34 ] Although both officers initially went toward the suspect, they quickly separated, with his partner intending to go farther to block

the road with the truck. [ 35 ] During that time, he followed the accused, aiming his weapon at him and repeatedly telling him to drop his gun, which he did not do.

On the contrary, he started running, putting the barrel in his mouth, then stopped and aimed in the direction where Officer Beaugrand assumed Officer Vallée would be, although he could not see him because the houses were blocking his line of sight. [ 36 ] It was then that he said [ translation ] “he’s aiming at you” over the radio and decided to fire at the accused. [ 37 ] From his version of events, the Court retains the following sequence during which he personally fired five shots. [ 38 ] He fired two shots when he saw Mr.

Elijassiapik raise his weapon, aim, and fire. [ 39 ] He then explained that he heard the sound, saw the recoil and smoke coming from the barrel, as well as the shooter’s body move back. [ 40 ] The officer fired a third and fourth round, which, like the first two, missed their target. [ 41 ] The suspect fired a second time, again in the direction of his colleague.

Officer Beaugrand claims that at that point, in light of the fact that he was personally aiming his weapon at the accused, he could not see him clearly but nevertheless asserts that, once again there was smoke coming from the barrel and that he saw a backward movement. [ 42 ] When asked to elaborate on this specific point, he ended up saying that he was not certain that there was a second shot fired, but maintained his observations concerning the smoke and backward movement.

When cross-examined, he admitted that he did not see the accused reload the weapon, which must be done for every shot. [ 43 ] He yelled in the direction of the suspect, who turned toward him with the weapon at his waist and aimed. To protect himself, Officer Beaugrand fired a fifth round, but once again missed the target. [ 44 ] According to the witness, this episode during which shots were fired lasted about ten seconds. [ 45 ] Immediately afterward, Mr.

Elijassiapik moved toward the direction Maxime Vallée was likely standing, so that he lost sight of him. [ 46 ] The rest of the account is almost the same as that reported earlier, that is, that Ms. Angie Inukpuk came to tell them where they could find the accused and that the officers each took position to wait for what would follow. [ 47 ] For his part, when the suspect finally surrendered, he searched the premises where the accused had been hiding, but did not discover any weapons or ammunition. [ 48 ] He added that when he went back to get the F-150 at the end of the operation to place Mr.

Elijassiapik, he saw that the door window had been shattered. He noted that there was no other damage to the vehicle. The other windows and the body of the car were intact. [ 49 ] Moreover, he did not find any lead shots or similar projectiles in or near the vehicle, and when he returned to the scene the next day hoping to find one or more casings, he returned empty-handed. [ 50 ] As for Officer Gregory Lane, he was not working the day he received a call for backup from Beaugrand.

He went to the police station where he armed himself with a specific weapon and informed his colleagues in Puvirnituq that they needed backup. When he got to the scene, he saw the Ford F-150 and the shattered left rear door window. He met up with his colleagues and his subsequent observations are essentially the same. [ 51 ] He placed the accused on the right, back seat of the police pick-up truck after removing the glass debris so the accused would not injure himself.

He did not notice anything resembling a projectile among the debris, but added that he did not look for them either. [ 52 ] Let us return to the chronological order of events. Ms. Angie Inukpuk will recount the details of the third episode of the story. [ 53 ] She explained that at the time of the events, she was living with her brother and that they were both sleeping. She was woken by a man aiming a weapon at her.

He ordered her to get up, which she refused to do, and he responded, “I can shoot you”. [ 54 ] She therefore obeyed and went to wake her brother who was in an adjacent bedroom and heard the accused announce from the front door in an aggressive tone of voice that he was there and that he had two hostages. [ 55 ] Back inside, he instructed them to stay in the living room. He pointed his weapon at them on several occasions before he turned it on himself and started to cry. [ 56 ] After about 15 minutes, he told them they were free to go if they wanted, which they immediately did. [ 57 ] Outside, Ms.

Inukpuk rushed to tell the police officers what had just transpired and that Mr. Elijassiapik was still in her home. After his arrest, she went back to her home and noticed that there were about five holes in the wall of her bedroom. She found three unused 20-caliber casings in various places. As for the assailant’s weapon, she described it as being that caliber and sawed off at both ends.

She confirmed that the weapon that was seized from her home was the one used to threaten her. [ 58 ] In response to the questions asked by counsel for the defence, she answered that in her view, the man who was before her was intoxicated and his mood changed from angry to suddenly sad.

[ 59 ] This is, in essence, the Crown’s evidence in this case. [ 60 ] In defence, the Court heard from Mr. Réjean Côté, a retired military officer, who, after a voir dire on the subject, was declared to be an expert in interior, intermediate, exterior, and terminal ballistics. [ 61 ] He explained that he was given a mandate mainly to determine whether it was plausible that a shot fired by the weapon in Mr. Elijassiapik’s possession could shatter the rear door window of the pick-up truck. [ 62 ] More specifically, the purpose of his assessment, which is divided into two parts, is as follows: AIM 5.

The aim of this test is in two parts. a. Part one is to validate if a 20 gauge shotgun, firing hunting shots can break a pick up back door window at 50 m. b. If the window would not break at 50 m. Part two is to estimate at what distance the same shotgun will break the same window. [1] [ 63 ] The only data available to him were from counsel for the accused, which came from the police report.

He therefore knew about the type of weapon used, a sawed-off 20-caliber shotgun, allegedly fired at a distance of about 50 meters. [ 64 ] As for the projectiles, he knew only their caliber having no information on the type or size of the shots. [ 65 ] He therefore attempted to carry out comparative tests by reproducing, as far as possible, the conditions prevailing on December 27, 2018. [ 66 ] The first variable he was unable to reproduce is the type of weapon because the one that was used, due to its length, is illegal and its possession is prohibited in Canada.

He therefore resorted to a gun of the same caliber but with a standard barrel, which is designed to limit shot dispersion. [ 67 ] The second element that is different in his approach is the target with which he worked.

Since he could not have access to a Ford pick-up truck door without disbursing a significant amount of money, he chose to carry out his tests with plasticized cardboard known as “Coroplast”. [ 68 ] As for the type of ammunition, not having this information, he went with what he felt was most common, a two and three- quarter inch cartridge filled with size 5 shot. [ 69 ] In his opinion, the shooter did not use slugs or larger shots, such as buckshot, which would have made bigger holes and inevitably also damaged the window of the right door. [ 70 ] He therefore set up his target at the aforementioned distance and performed firing tests.

He then calculated the proportion of shots that hit the 22-square-foot target and noted that the success rate was 70.5%. [ 71 ] This led him to state that this wide dispersion indicates that if the shot had damaged the rear door window, it would also have damaged the front one and the other parts of the vehicle.

He also recalled that the tests were conducted with a weapon equipped with a modified choke and that the dispersion would have been even wider if the weapon at issue had been used as the barrel is shorter. [ 72 ] As for the energy of the projectiles as they hit the target, he states that it is so low that some of the shots failed to penetrate the plastic sheet. [ 73 ] To determine at what distance such a projectile could shatter this type of glass, he reproduced his tests at various distances, that is, 40, 30, then 15 meters.

He concluded that the energy, during the test from the closest distance, would have been sufficient to cause the alleged damage. [ 74 ] Accordingly, he drew the following conclusions: 25. From the technical data gathered during this test, we can deduce that it is very improbable that a truncated 20 gauge shotgun using game shots firing at 50 m could have broken a pick-up side window. 26. The large pellets dispersion over 22 ft 2 (2,05 m 2 ), as shown at

Annexe 2 , clearly indicates that if the firing of the shotgun lot #K32- 18-074 had broken the backdoor window of the police vehicle, it would also have broken the forward door window (driver window) and damaged the police vehicle beacons. 27. We can also deduce, after many shootings, that between 1 and around 18 m, the spray of No 5 shots from a 20 gauge shotgun will break a pick-up side window.

In such a situation, the inside of the pick-up rear area of the cab would show a lot of broken glass and lead pellets. [2] [ 75 ] He added that if the velocity of the shots had been sufficient to shatter the window, a considerable amount of shot should have been found inside the vehicle. [ 76 ] On cross-examination, he acknowledged that the tests he conducted were done in conditions that differed from those prevailing during the actual event. [ 77 ] Nevertheless, he claims that he would not have obtained better results with a sawed-off weapon as it is less accurate, with

increased shot dispersion and likely to fire the shots at a lower velocity. [ 78 ] Moreover, he had to admit that the material used to manufacture the shot may have an impact on its performance when it hits the target.

Indeed, a harder projectile, made with steel, is more likely to cause damage. [ 79 ] He does not know how much energy is required to shatter the side window of a pick-up truck, but merely assumed that it must be greater than the one required to damage plasticized cardboard. [ 80 ] He also acknowledges that one of the marks left at the top of this window could have been left by a shot. [ 81 ] More over, he agrees that a larger projectile, that is, a # 2 or 3 made of steel, possibly had a 50% chance of shattering the window from that distance. [ 82 ] Not knowing what type of ammunition is available and commonly used in the community at issue, he could not assert that his choice for the tests was the most likely. [ 83 ] That is an overview of the evidence presented at trial.

Analysis [ 84 ] As stated in the introduction to this judgment, this case may be divided into three sequences that, while they complement each other, can be analyzed separately. Thus, there is the episode where Mr. Elijassiapik is accused of attacking his spouse, the one where he allegedly opened fire on the police officers, and finally, where he allegedly forcibly confined two persons. [ 85 ] In the Court’s view, the first and third episodes present no real difficulties. The evidence is mostly clear and precise on how the events unfolded. [ 86 ] Indeed, the testimony heard, those of Ms. and Mr.

Ningiuk, corroborate each other, and are credible and reliable. There is nothing that would allow them to be set aside or to prevent the main elements from being accepted. [ 87 ] The Court is therefore convinced that on the morning of December 27, 2018, Mr. Joshua Elijassiapik went to the home of his spouse’s parents, where Ms. Ningiuk was staying, despite the fact that he was not authorized to do so. He assaulted her, first in the bedroom and then by throwing a shelf at her and inflicting bodily harm by doing so. It is also proved that he uttered threats to cause her death. [ 88 ] With respect to her father, Mr.

Ningiuk, in addition to having committed mischief by taking and breaking his telephone, the accused hit him and then held him against his will when he tried to escape. [ 89 ] With respect to the third episode, the testimony of Ms. Angie Inukpuk is again clear and coherent.

The cross-examination did not rattle her in any way or reveal any contradictions or implausibility whatsoever. [ 90 ] It is therefore clearly established that the accused broke into and entered the home of this woman and her brother, confined them by using a firearm that he aimed at them, and uttered threats. [ 91 ] It is the episode between these two that must be analyzed with great attention and care to fully understand the exact chain of events. [ 92 ] In short, what the Court must above all determine is whether it has been proved beyond a reasonable doubt that Mr.

Elijassiapik aimed his weapon and fired in the direction of the police officers, thereby shattering the pick-up truck’s door window. [ 93 ] On this subject, let’s go back to the relevant testimony to recall the main elements. [ 94 ] First, Ms. Ningiuk explained that she saw Mr. Elijassiapik return with a weapon that he shot into the snow before putting the barrel in his mouth. [ 95 ] Sergeant Vallée explained that while he was at the wheel of the vehicle, his partner told him, [ translation ] “he’s aiming at you”, and he actually saw the accused aiming in his direction.

He got out of the truck, slipped, and while his back was turned, he heard two shots. He quickly sought cover. [ 96 ] Officer Beaugrand is the one who later gave more detail on this sequence of events. [ 97 ] He claims that he saw Mr. Elijassiapik raise his weapon and point it at his partner, who he could not see because of the houses. He shot his service weapon twice before the accused could fire. [ 98 ] He fired two additional shots because he said he saw the weapon’s recoil and smoke coming from the barrel, which obviously meant that there had been another shot.

However, in spite of this, he says that he is not certain that this was the case. [ 99 ] Feeling threatened, the suspect now aiming at him, he shot again, but missed his target. [ 100 ] It is impossible for the Court to reconcile these versions and draw from them a coherent scenario that convincingly represents the chain of events for this episode. [ 101 ] First, there is Ms. Ningiuk who saw the accused shoot only once, into the snow. She did not hear any other shot fired and never

witnessed any actions against the police officers. [ 102 ] As for Mr. Vallée, he claims that the accused, who was 50 metres away, aimed at him and he then heard two shots fired in close succession which, obviously, cannot have come from Mr. Elijassiapik’s weapon, which must be reloaded after each shot. It is therefore much more plausible that it was the noise from his colleague’s weapon. It is quite strange, however, that Officer Vallée did not hear the noise that the accused’s weapon would have made had it been shot since he was closer to him.

Moreover, at this point, the houses do not act as a sound barrier. [ 103 ] As for Mr.

Beaugrand’s version, not only is it difficult to tie it to his colleague’s, but it raises questions about several aspects. [ 104 ] First, when he saw the accused behind the house, at a rather considerable distance away, he was able to immediately identify him and say that he was holding a weapon with a shortened wooden buttstock and sawed-off barrel. [ 105 ] His own colleague, who also knows the individual, deemed that the distance was too great for him to identify the accused. [ 106 ] How can he assert that the suspect was aiming at the other officer when he could not see the other officer and did not know his exact position? [ 107 ] He claims, in his testimony given on January 15, 2020, that he saw the suspect hold the weapon and place it on his shoulder when he was aiming at him.

Based on his experience, he estimated the distance between them at 50 metres. [ 108 ] Because this weapon was initially a long gun, the buttstock would usually be used as a resting point for the shooter. In this case, the buttstock in question was cut so that there remained what could only be called the grip, near the trigger. It is difficult, therefore, to form a picture where a shooter armed with such a weapon would place it on his shoulder to shoot.

This would likely require him to adopt an awkward posture. [ 109 ] Moreover, how to explain that he could describe the first and second shots fired with such precision and then add that he was not certain the second shot was actually fired? [ 110 ] If there was a first shot, there cannot have been a second shot because Officer Beaugrand did not see Mr. Elijassiapik reload the weapon during this episode that lasted barely 10 seconds.

Accordingly, it is not through his testimony that the Court may be convinced that the events unfolded as he claims. [ 111 ] As for the testimony of Réjean Côté, the ballistics expert, despite this individual’s obvious competence, there are some things that nevertheless cast doubt on his remarks. [ 112 ] Basically, there are differences, significant nonetheless, between the way the events allegedly unfolded and the way he reproduced them. [ 113 ] The main one is the type of ammunition he chose as a reference point, that is, # 5 lead shot cartridges. [ 114 ] The Court is prepared to believe that had slug or buckshots been used, these projectiles likely would have left unequivocal traces, given their size. [ 115 ] However, the use of steel shot likely could have caused the damage alleged by the Crown. [ 116 ] His explanations about dispersion remain convincing, however, so it is difficult to understand how projectiles could have shattered the glass without leaving any other traces on the vehicle’s body, front door, or even beacon.

Furthermore, the photograph taken by the police officer, which is distorted and fuzzy, provides no additional assistance. [ 117 ] In short, this report and his testimony do not dismiss the hypothesis presented by the Crown that the window was shattered following a shot fired by the accused, but does still raise questions about it. [ 118 ] That being said, the shattered window is tangible evidence that something happened that could well have been what the Crown submits.

However, we cannot ignore the rest of the evidence on how events unfolded or the fact that no lead shots, casings, or other markings on the vehicle were found to establish beyond a reasonable doubt the merits of this hypothesis. [ 119 ] Accordingly, what actually happened during this episode remains unclear and the accused can only benefit from this gap in the evidence. [ 120 ] In conclusion, the Court is not convinced that he actually aimed the weapon at Maxime Vallée or the other police officer and that he fired. [ 121 ] Despite this, the Court considers it appropriate to make certain remarks regarding the accused’s defence of voluntary intoxication. [ 122 ] Let us briefly recall that while this defence cannot be raised against a crime of general intent, it can be used when the offence in question requires a specific intent.

As stated by the Supreme Court in the trilogy R. v. Robinson, R. v. McMaster, and R. v. Lemky , [3] the judge must consider whether the accused had the specific intent required to commit the offence at the time of the events alleged against him. [ 123 ] In R. v. Daley , [4] the Supreme Court added that there are three degrees of intoxication. [ 124 ] The first is mild and induces inhibitions to relax. It may lead a person to have behaviour that he or she would not normally have, but does not constitute a defence as such.

[ 125 ] The second is advanced intoxication, which prevents the accused from forming the specific intent required to commit the offence. Accordingly, it may be argued successfully in some cases. [ 126 ] As for the third, it is extreme intoxication akin to automatism. [ 127 ] In short, for an acquittal to be ordered, the defence of intoxication must be such that it raises a doubt on the existence of the specific intent to commit an offence. [ 128 ] In this case, most of the witnesses agree that Mr.

Elijassiapik had undoubtedly consumed alcohol, but how much is entirely unknown as the evidence is silent in this regard. [ 129 ] The clues drawn from the evidence are also insufficient to determine his degree of intoxication. [ 130 ] We know that the witnesses who saw him were of the opinion that he had been drinking, if only because of his aggressive behaviour, which is lacking when he is sober. [ 131 ] In short, it is not with the help of a few remarks on the subject, made by the witnesses without any further explanations, that the Court could have added this element to the equation and found that the defence was admissible. [ 132 ] That being said, here are the results of this analysis with respect to each of the counts.

File 640-01-041654-188 Count 1 [ 133 ] As for the first count, having used a firearm in a careless manner or without taking reasonable precautions, the Court is of the view that the offence has been proved if we accept that the accused moved around with a weapon that, at one point, was loaded since he fired into the snow, then put the barrel in his mouth, and that he had cartridges on him that were later found at the home of Ms. Inukpuk and Mr. Qumarluk. Count 2 [ 134 ] As for the allegation that Mr.

Elijassiapik was in possession of a weapon for a dangerous purpose, a review of the circumstances as a whole reveals whether or not that was the case. [5] [ 135 ] Here, the individual had in his possession a sawed-off firearm that he took the time to go fetch after having threatened his spouse. [ 136 ] He went toward her home, but changed direction and found himself using it to forcibly confine two individuals. [ 137 ] The Court therefore has no doubt about the intention behind the actions of the accused and accordingly convicts him.

Count 3 [ 138 ] Now, in respect of the infraction of discharging a firearm while being reckless as to the life or safety of another person. [ 139 ] As stated above, the Court cannot find that there is evidence that a shot was fired in the direction of Officer Vallée and, therefore, the only time he fired his weapon was when he did so into the snow. At that time, he did not seem to be aiming at any one thing or person and the distance at which he was does not make it likely that he could have hit either one. [ 140 ] As stated by the Court of Appeal in R. c.

Goupil , 2014 QCCA 2176 : 33. […] L’infraction exige de prouver que l’accusé envisageait la possibilité que la décharge compromette la vie ou la sécurité d’autrui et que, conscient de ce fait, il a quand même fait feu, et non l’intention spécifique de causer des lésions corporelles à autrui. […] [ 141 ] In this case, for the reasons stated above, the Court finds that there is no proof of this. Indeed, as previously stated, the accused was in a field when he discharged his firearm and it is unlikely that he hit anyone. [ 142 ] The situation here is similar to the one examined by the Court of Appeal in R. c.

Côté , 2018 QCCA 1153 , where the accused discharged his firearm into the sand, knowing that the area was isolated and there was no risk that the projectiles would ricochet. [ 143 ] Accordingly, the Court finds that it has not been established that the accused is guilty of this offence. Counts 4, 5, 6, 7, 13, and 14 [ 144 ] As stated earlier, the evidence is conclusive concerning the first sequence of events with respect to counts 4, 5, 6, 7, 13, and 14, where Ms. Dora Ningiuk and her father, Joanassie Ningiuk, were assaulted by Mr. Elijassiapik.

Moreover, as stated, he entered the home entirely without right and assaulted his spouse, causing bodily harm. [ 145 ] The accused is therefore convicted on counts 4, 5, 7, 13, and 14, while count 6 will be stayed pursuant to rule against multiple convictions. Counts 8, 9, 10, 11, and 12 [ 146 ] In light of the doubt remaining on the question of whether the accused did indeed aim his weapon in the direction of the officers

and open fire, the Court finds that it has not been proved that he is guilty of the offences listed under counts 8, 9, 10, 11, and 12 inclusively. He is therefore acquitted on those counts. Counts 15, 16, 17, 18, 19, 20, and 21 [ 147 ] Concerning count 15, where the accused is alleged to have threatened Mr. Joanassie Ningiuk, the Crown’s evidence is silent in this regard. The accused will be acquitted. [ 148 ] As for counts 16 to 21, inclusively, concerning the episode where he entered the home of Ms. Angie Inukuk and Mr.

Putu Qumarluk and confined them at gun point, the evidence is also conclusive that the offences were committed and accordingly, the accused will be convicted on counts 16, 19, 20, and 21, while a stay of proceedings will be ordered on counts 17 and 18. Counts 22 and 23 [ 149 ] In this file, only counts 22 and 23 remain to be dealt with. They respectively allege that the accused had a weapon in his possession and consumed alcohol while he was prohibited from both pursuant to a recognizance entered into on August 29, 2018. The evidence has established that he is guilty of both.

File 640-01-041655-185 [ 150 ] In the second case, file number 640-01-041655-185, alleging that he committed mischief by breaking a telephone and a coffee maker, there is no doubt that the accused committed the acts alleged against him and for which, accordingly, he is also convicted.

FOR THESE REASONS, THE COURT: In file 640-01-041654-188: [ 151 ] CONVICTS the accused on counts 1, 2, 4, 5, 7, 13, 14, 16, 19, 20, 21, 22, and 23; [ 152 ] ACQUITS the accused on counts 3, 8, 9, 10, 11, 12, and 15; [ 153 ] ORDERS a stay of proceedings on counts 6, 17, and 18; In file 640-01-041655-185: [ 154 ] CONVICTS the accused. __________________________________ Jean-Pierre Gervais, J.C.Q. Mtre Marie-Josée Barry-Gosselin Counsel for the DCPP Mtre Caroline Jennis Counsel for the accused