R. v. Inookie, 2011 NUCJ 33

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. Inookie, 2011 NUCJ 33 Date of Judgment (YMD): 2011-12-16 File Number: 08-06-165-1 Registry: Iqaluit Prosecutor: Her Majesty the Queen -and- Accused: Eeta Inookie ________________________________________________________________________ Before: The Honourable Mr. Justice E. Johnson Counsel (Prosecutor): J. Gevikoglu Counsel (Accused): C.

Lyons Location Heard: Iqaluit, Nunavut Date Heard: November 22-23, 2011 Matters: Criminal Code, s. 267 (a), 88 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) Amended Decision: An amended decision was issued on January 10, 2012; the corrections have been made to the text and the amendment is appended to this judgment.

I. INTRODUCTION [ 1 ] The accused is charged with assaulting Mary Laisa by firing pellets from a pellet gun into her face in the City of Iqaluit on October 18, 2010, contrary to s. 267 (

a) of the Criminal Code (Code). She is also charged with possession of a weapon for the purpose of committing an offence contrary to

section 88 of the Code. [ 2 ] The accused raised a self-defence argument and both Crown and Defence submitted some caselaw to support their arguments. [ 3 ] Judgment was reserved. II. EVIDENCE A. Complainant [ 4 ] The complainant testified she had known the accused all her life and that she was a friend of the accused’s sister. The complainant arrived at the Navigator bar in Iqaluit between 5 and 6 o’clock on the evening of October 18, 2010, and sat down with a person called Chris. She saw the accused in the bar. Between 6 and 9 o’clock, the complainant drank seven beers and then went outside to have a cigarette.

As she was lighting the cigarette the accused pushed her from behind. She swore at the accused and the accused swore at her and then they started fighting. They exchanged blows and fell to the ground. The complainant got the upper hand and the accused then left the scene. [ 5 ] About three minutes later the accused came back and confronted the complainant on the road near the Navigator. When they were about five feet apart the accused pointed a pellet gun at the complainant and the complainant told the accused to “go ahead” a few times, not expecting anything to happen.

The complainant then aimed the pellet gun at the complainant and shot her twice in the face with the pellets causing bruising and swelling. [ 6 ] The complainant thought the accused was drunk and testified that she felt nothing when she saw the gun pointed at her. [ 7 ] In cross-examination, the complainant denied she had been drinking at the Nova Inn bar with the accused before she went to the Navigator. She acknowledged that she knew the complainant was in a relationship with Serge Marleau (Marleau). She acknowledged seeing Marleau in the bar at the Navigator before she went outside.

Although she denied ever having been in a sexual relationship with Marleau in the past, she acknowledged that she got into the fight with the accused over Marleau. As the complainant testified “She thinks we were having sex”. She acknowledged punching the accused about ten times in the head and winning the fight. [ 8 ] Defence counsel confronted the complainant about inconsistencies between her evidence and the statement she gave to police.

She acknowledged she did not mention the fight in the statement explaining that she was afraid she would have been charged with an offence. [ 9 ] When the complainant and the accused crossed paths in the street for the second time the complainant denied she advanced toward the accused and insisted the accused stopped her. She denied she was angry at the accused and insisted it was the accused who was angry with her. The complainant testified she had no feelings at all as she advanced toward the accused telling her to “go ahead” and that she was thinking “Come on, let’s do this”.

However, she denied taking a swing at the accused before the accused aimed the pellet gun at her before firing the two pellets. [ 10 ] She acknowledged that in her statement to the police she said the accused did not aim the pellet gun at her and then put it down but could not explain the contradiction with her evidence in court where she was very clear that the accused aimed the pistol at her before she fired. [ 11 ] The complainant acknowledged she had a criminal record with 17 convictions including an assault conviction on March 21, 2011.

[ 12 ] Finally the complainant testified that a person by the name of Blaine had witnessed the second fight with the accused. B. Marleau [ 13 ] Marleau testified that he was the common-law-spouse of the accused and that they are the parents of a young child. He was drinking with Blaine in the Navigator and witnessed the first fight between the accused and the complainant. He testified that the complainant said she had come from the Nova Inn before she started drinking at the Navigator. She told him that the accused was with an old man and wanted to go home with him.

Around that time, the accused arrived from the Nova Inn and the fight started with the complainant. [ 14 ] Marleau testified that he had had sex with the complainant in the past and that he did not see anything that happened later when the pellet gun was discharged. He also confirmed that Blaine was in the bar with him after the fight ended. [ 15 ] In cross-examination, Marleau confirmed that he had consumed about four or five beers before he witnessed the fight between the complainant and the accused. He saw the complainant on top of the accused and then the fight ended.

The complainant and the accused were angry. C. Accused [ 16 ] In her examination-in-chief, the following testimony was provided by the accused. [ 17 ] The accused testified she had been drinking at the Nova bar with the complainant before she walked to the Navigator. She consumed six beers over a one-hour period and saw the accused drinking there as well. She described her interaction with the complainant as “playing nice”. She explained that she had known the complainant for a while and knew that she had slept with Marleau in the past.

She chatted with the complainant so that she would not get barred from the bar. Later they sat down with an old man. About five minutes later, the complainant ordered another beer but was cut off. The accused had one more beer and before the complainant left, the accused told the complainant she was going to pick up Marleau at the Navigator. [ 18 ] The accused noticed that the complainant was upset when the bar refused to serve her any more alcohol. A short time later the accused was cut off and walked to the Navigator. As she approached the Navigator she noticed Marleau was outside talking with Blaine.

She greeted Marleau and suggested they go home. As the accused was speaking to Marleau, the complainant came up to her and asked, “How was that old man? How was that old dick, you bitch, you whore?” The accused took these words to mean that the complainant thought she had slept with the old man they were sitting with at the Nova. The accused got mad because at the Nova the complainant was nice to her and now she was mean and aggressive. [ 19 ] The accused pushed the complainant and they started struggling and fighting. The accused grabbed the complainant’s hair and pulled her down while punching her.

The complainant grabbed the accused’s jacket, pulled her down and grabbed her hair. She started punching the accused many times. The accused realized she was going to get beat up and she told the complainant to stop. The complainant stopped and the accused told Marleau to come home with her but he stayed at the Navigator. The accused took a cab to her home. She started to worry that Marleau would end up sleeping with the complainant and then she noticed the pellet gun by the television.

She decided to take the pellet gun “and go get Serge back home”. [ 20 ] The accused left her home to find Marleau and bring him home. Before she left she picked up the pellet gun because she was afraid she might end up running into the complainant. She was afraid she would get beat up again and took the pellet gun to defend herself. She had never handled the pellet gun before and did not know the gun was loaded. When she left her home she had no intention of using the gun on the complainant. [ 21 ] As the accused walked down the street she noticed the complainant outside the Navigator.

The accused tried to walk by her but the complainant raised her voice and saying “bitch, let’s fight”, advanced toward her. The accused backed away from the complainant and told her she did not want to fight her. The complainant continued to advance toward her saying “let’s fight”, and the accused again told her she did not want to fight. When the complainant was two feet from her, the accused pointed the pellet gun at her and told the

complainant to leave her alone. The complainant continued to advance goading the accused to shoot the pistol at her. The accused thenpointed the gun at the ground and tried to walk away. As she tried to walk away the complainant ran up and tried to grab or hit her. Inresponse to the complainant’s motion, the accused pulled the trigger twice and two pellets struck the complainant in the face ending thecomplainant’s attempt to start another fight. [22] In cross-examination, the accused admitted she was buzzed from the beers she had consumed at the Nova and was angry becauseshe had been beaten up.

She admitted she was mad when she picked up the pistol and was upset that the complainant might end upsleeping with Serge Marleau. She acknowledged she wanted to make sure the complainant did not end up with Serge and thought thepistol would help. She was familiar with the pistol and hid it in her clothing when she went out. III. ARGUMENTS A. Accused [23] Defence counsel noted the conflicts between the complainant’s evidence and that of Marleau and the accused.

First, thecomplainant testified she was never at the Nova Inn, while the accused testified she was drinking with the complainant there before shewent to the Navigator. Marleau heard her say she had been drinking at the Nova. Second, the accused points to the conflict between thecomplainant and Marleau about whether Blaine witnessed the fight. The complainant testified Blaine watched the second fight, whileMarleau testified Blaine was in the bar when it happened. Third, the complainant testified she had never had sex with Marleau whileMarleau testified they did have sex.

The complainant testified that she told the prosecutor she had been shot a third time, while shetestifed in court that the pistol had been fired a third time but she was not hit by a pellet. Finally there were the significant differences inthe complainant’s account of the second encounter and that of the accused. [24] The accused argues the complainant is not a credible witness. She was not believable when she testified she was not angry when shemet the accused in the street.

The accused also relies on the lengthy criminal record of the complainant including a recent conviction forassault. [25] On the other hand, Defence counsel argues the accused was a credible witness. She made admissions against her own interest suchas admitting that she pushed the complainant first to start the fight. She also acknowledged she was scared, upset and angry after she wasbeat up in the fight. She was genuinely fearful of the complainant and only wanted to get Marleau to come home. She brought the pistolbecause she wanted to protect herself from the complainant.

Any conflict in the evidence between the complainant and the accusedshould be resolved in favor of the accused. The accused did not aim the pistol at the complainant. As the complainant advanced towardthe accused, the accused reacted instantaneously and fired the pistol to end the anticipated assault. Self-defence is applicable and theaccused should be acquitted of the assault with a weapon charge. [26] On the

section 88 charge, the accused relies on the case of R v Sulland (1982), (BC CA), 2 CCC (3d) 68, 41BCLR 167 [Sulland]. In that case, the British Columbia Court of Appeal held that a person does not commit an offence under

section 88if the accused carries a weapon for self-defence that is an appropriate instrument with which to repel, in a lawful manner, the type ofattack the accused reasonably anticipated; provided the accused is competent to handle the weapon and is likely to use it responsibly.Also, as noted in R v Thornton, (ON CA), [1971] 1 OR 691-693, judgments on this

section of the Code are heavilydependent on the facts. B. Crown [27] The Crown argues that the accused did not have to arm herself with the pistol because the fight was over. She could have called thepolice instead. She went back to the scene of the fight because she was angry and expecting an altercation. She hid the pistol in herclothes and appeared somewhat knowledgeable about the pistol. When the complainant faced the accused she aimed the pistol and firedit twice hitting her in the face.

The Crown argues the complainant’s version of the confrontation over the pistol should be accepted overthe accused’s version. [28] Self-defence is not applicable, the Crown argues, because the accused created the situation by going outside where she knew shemight run into the complainant. She was not threatened by the complainant and used excessive force when she aimed and fired the pistol.

[29] Relying on R v Tymo, , [1994] BCJ No 3214 [Tymo]; R v Wint, (ON SC), 70 WCB (2d) 219[Wint]; R v MD, 2008 BCCA 538, 63 CR (6th) 159 [M.D.]; and R v Kerr, 2004 SCC 44 , [2004] SCJ No 39, 185 CCC (3d) 1[Kerr] for the

section 88 charge, the Crown emphasizes the importance of the accused’s concealment of the pellet gun when she left herresidence. It was objective evidence of the accused’s intention to use the weapon to harm persons or property or being reckless with it. III. ANALYSIS A. Credibility and reliability of witnesses [30] Where the accused testifies, the principles of R v W(D) (1991), (SCC), 63 CCC (3d) 397, [1991] 1 SCR 742 areapplicable. I adopt the words of Kilpatrick J. in R v AA, 2009 NUCJ 1 , 2009 NUCJ 01, where he stated: [6] This is a criminal trial. A.A. does not have to prove anything.

His innocence is presumed. It is the Crown that must establish guilt. This burden of proof never shifts to the defendant. It remains on the Crown throughout this trial. [7] The standard of proof in a criminal trial is a high one. Guilt can only be established by proof beyond a reasonable doubt. Suspicionor “probable” guilt is not enough. [8] A criminal trial is not a credibility contest between Crown and Defence witnesses. It is not simply a matter of choosing onewitness’s version of events over another.

Such an approach would suggest that an accused has some burden to convince the trier of factthat his or her version of the truth is more accurate or reliable. [9] The accused is entitled to the benefit of any reasonable doubt on an issue of credibility arising from the testimony of witnesses heardin this trial. If I do not know who or what to believe, the law demands that this accused be acquitted. [31] I am satisfied the accused was a more credible witness than the complainant because she exhibited some of the hallmarks of anhonest witness in making admissions against her own interest.

She admitted she started the first fight and also admitted she was angryand upset before she left her house with the pellet gun. On the other hand, the complainant was reluctant to admit anything against herinterest until faced with inconsistencies between her evidence and her statements to the police. As an example she said she felt nothing asthe accused approached her the second time in the street with a pistol in her hand.

This defies common sense unless she was sointoxicated she did not realize what was occurring. [32] The complainant was uncooperative, evasive and aggressive in response to the cross-examination and did not return after anadjournment. I had to issue a witness warrant to force her to finish the cross-examination. She also has a significant criminal recordincluding a recent conviction for assault. She struck me as being street tough consistent with her record. She was likely comfortableusing force when angered, particularly under the influence of alcohol.

On the other hand, the accused was forthright and co-operative ingiving her evidence and appeared more timid than the complainant. [33] For these reasons where there are conflicts in the evidence I accept the evidence of the accused. [34] Both the complainant and the accused had consumed significant quantities of alcohol prior to the start of the fight outside of theNavigator bar. The accused admitted she had consumed six beers over a one-hour period at the Nova Inn where she saw the complainantbeing cut off from further alcohol.

The complainant testified she had consumed seven beers at the Navigator bar before she went outsideto have a cigarette but denied she had been drinking at the Nova Inn before she arrived at the Navigator. I accept the evidence of theaccused and Marleau that the complainant was drinking at the Nova Inn before she arrived to continue drinking at the Navigator. If shewas cut off at the Nova and then drank seven beers at the Navigator she would have been very intoxicated. Since the accused did notdrink at the Navigator I accept that she was less intoxicated than the complainant.

As a result her evidence is also more reliable than thatof the complainant. [35] I also accept Marleau’s evidence that he previously had a sexual relationship with the complainant. I am satisfied that thecomplainant was interested in renewing her prior relationship with Marleau and attempted to do so when she was inside the Navigatorbar. When the complainant encountered the accused outside she was in an aggressive mood and taunted the complainant about the oldman she had been with.

Her words provoked the accused to push her and then she responded with much greater aggression leading to afull-blown street fight where her superior fighting skills prevailed. The accused was forced to retreat to her home to think about what sheshould do. [36] I accept the accused’s evidence that when she left her residence she had no intention of using the pellet gun to harm any one. She

was understandably concerned that Marleau might end up spending the night with the complainant and wanted to get him to come home.However, she was concerned she might run into the complainant and was concerned she would get beat up again. She took the pellet gunto defend herself. [37] I also accept the accused’s evidence that she tried to avoid the complainant when she saw her on the street. However, when thecomplainant saw the accused she resumed her aggressive taunting and walked toward her. The accused backed away because she did notwant to fight.

The complainant continued to advance and the accused pulled out the hidden pellet gun and pointed it at the complainant,hoping the revelation of the weapon would tame the complainant’s aggressiveness. The accused’s actions were unsuccessful because thecomplainant taunted her to shoot the complainant and continued to advance toward her. The accused lowered the gun toward the groundand tried to turn away. The complainant then took a swing at the accused but missed and the accused instinctively reacted by pulling thetrigger without aiming the pistol and the complainant was hit in the face by two pellets.

The second fight ended immediately and thepolice became involved. I also accept the evidence of the accused that she did not know the pellet gun was loaded. B. Assault with a weapon [38] The accused does not deny that she was in possession of a pellet gun when the complainant approached her on the street the secondtime on the evening of October 18, 2010. However, she argues that she used it to defend herself from a second assault by thecomplainant. [39]

Section 34 of the Code states: 34.

(1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force heuses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself. Extent of justification

(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if (

a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originallymade or with which the assailant pursues his purposes; and (

b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm. [40] In R v Petel, (SCC), [1994] 1 SCR 3, [1994] SCJ No 1, the Supreme Court of Canada held that, in applyingsection 34, a court had to determine the existence of the assault from the subjective perception of the accused stating: [21] The existence of an assault must not be made a kind of prerequisite for the exercise of self-defence to be assessed without regard tothe perception of the accused. This would amount in a sense to trying the victim before the accused.

In a case involving self-defence, it isthe accused's state of mind that must be examined, and it is the accused (and not the victim) who must be given the benefit of areasonable doubt. The question that the jury must ask itself is therefore not "was the accused unlawfully assaulted?" but rather, "did theaccused reasonably believe, in the circumstances, that she was being unlawfully assaulted? [41] In R v Plain, (ON SC), 121 CCC (3d) 199, [1997] OJ No 4927, Lally J. also approved the following statementby Professor David Paciocco on the subjective perceptions of the accused: Professor David M.

Paciocco, in a paper, "Sorting out the Law of Self-Defence”, delivered to the judges of the East Region atMontebello recently, stated: The Actual Subjective Perceptions of the Accused There are reasonable perceptions and there are unreasonable ones. Indeed, we have long recognized that unreasonable beliefs, if actedupon, can constitute negligence. It is no defence in a dangerous driving charge for the accused to show that he did not see the oncomingvehicle and that, according to his perception, he had an open road. With respect to the defence of self-defence, we do not exculpate those

who believe unreasonably that they are being assaulted. The doctrine requires that this belief be reasonable. It follows necessarily thatwe do not allow the subjective beliefs or perceptions about fact of the accused to be used as the basis for evaluating the reasonablenessof their actions. What we do is ask whether the subjective beliefs and perceptions of the accused are reasonable ones.

If they are, wethen ask whether, given those reasonable beliefs, the accused acted reasonably. [42] I am satisfied that the accused reasonably believed she was about to be assaulted again and was justified in repelling theapprehended assault by responding with force. [43] The next step is to determine whether the force used was intended to cause grievous bodily harm.

While a pellet could have enteredthe complainant’s eye and caused grievous bodily harm, I am satisfied that grievous bodily harm was not intended and none occurred. [44] The final step is to determine whether the force used was excessive in all the circumstances. As noted in R v Kandola (1993), (BC CA), 80 CCC (3d) 481, [1993] BCJ No.1035, a person cannot weigh to a nicety the exact measure of the defensiveaction required to defend against a perceived assault. The complainant had already beaten up the accused and the accused reasonablybelieved that it was going to happen a second time.

The complainant advanced toward the accused and took a swing at her before theaccused pulled the trigger. Under all the circumstances, I am satisfied that the force used was not excessive. [45] As a result, I am satisfied that the accused has met the requirements of

section 34 and I acquit her of the charge of assault with aweapon. C. Carrying weapon to commit offence [46] In Kerr, Bastarache J. considered the part of

section 88 dealing with possession of a weapon for a purpose dangerous to the publicpeace, whereas the case at bar concerns the second part dealing with possession of the weapon to commit an offence. [22] I note at the outset that s. 88 seems to create two separate offences: (

i) possession of a weapon "for a purpose dangerous to thepublic peace" and (ii) possession of a weapon "for the purpose of committing an offence". In this case, we are concerned only with thefirst of these offences. [47] Wint and M.D. also concerned possession for a purpose dangerous to the public peace and considered the principles set out in Kerr. [48] Sulland was decided before Kerr and concerned possession of a weapon for a purpose dangerous to the public peace. [49] I was unable to find any cases that dealt with the second part of

section 88, specifically possession of a weapon for the purpose ofcommitting an offence. I am satisfied that the principles from Kerr can assist in analyzing the elements required for a conviction forpossession of a weapon to commit an offence. [50] At para 40 of Kerr, Bastarache J. noted that a finding that an accused used his weapon in a manner that constituted justifiable self-defence does not necessarily mean that an acquittal is warranted under

section 88 because the offences have different tests. In self-defence, it is the accused’s conduct that is at issue whereas under

section 88 the issue is the accused person’s purpose. The test for self-defence is the reasonableness of the accused’s subjective beliefs whereas under

section 88 a court objectively assesses the accused’spurpose in carrying the weapon. [51] The Crown argues that the accused’s concealment of the weapon was a significant indicator of her intent to use the weapon. It isalso significant that the accused did not have to leave her home and could have avoided the second confrontation with the complainant. [52] While Bastarache J. quoted a general statement from R v Felawka, (SCC), [1993] 4 SCR199, 85 CCC (3d) 248 atpara 56 of Kerr, about possession of a concealed weapon, his remarks were clearly focused on the key factor of the ability to avoid thedanger because of his earlier statement as follows:

[38] In my view, the crucial issue in those cases where the accused person is found to have possessed a weapon for a defensive purpose is whether or not the attack which the accused purported to thwart was avoidable. Thus, only where the attack is completely inescapable is possession of a weapon to thwart the attack not possession for a purpose dangerous to the public peace. To the contrary, the purposeful act then constitutes an abatement of a danger to the public peace, namely, an attack on one's self.

Many indicia will be relevant to the determination of avoidability, including, inter alia: location, atmosphere, nature of the threat, imminence of the danger, and actual use. [ 53 ] The accused could have avoided the second confrontation with the complainant by calling the police and staying in her home. If she had been charged with possession of the pellet gun for a purpose dangerous to the public peace I would have been comfortable in entering a conviction. However, I am dealing with the second part, specifically possessing the weapon for the purpose of committing an offence.

As noted at para 23 of Kerr, both offences in

section 88 are specific intent crimes. My analysis must objectively assess whether the accused intended to commit an offence as opposed to whether the public peace was affected. As noted earlier, I am satisfied that she had no intention of committing any offence when she left her home. She did not seek out the complainant to exact revenge for the earlier beating. She was trying to get her common-law husband to come home and tried to avoid the complainant. After revealing the weapon the accused lowered it and tried to leave but was prevented from leaving by the complainant’s assault on the accused.

If the complainant had left her alone nothing would have happened. [ 54 ] As a result, I acquit the accused of the charge under

section 88. Dated at the City of Iqaluit this 16th day of December, 2012 _______________________ Mr. Justice Earl D. Johnson Nunavut Court of Justice Amendment of the Reasons for Judgment Reserved of The Honourable Mr. Justice Johnson _______________________________________________________ In the frontispiece of this judgment the name of the Crown Counsel was changed from “J. Gevicoglu” to “J. Gevikoglu.”

Please replace the amended pages in your hard copy of the judgment.