R v Kingwatsiak, 2021 NUCA 18

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Kingwatsiak, 2021 NUCA 18 Date: 20211018 Docket: 03-18-002-CAP Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - Peter Kingwatsiak Appellant _______________________________________________________ The Court: The Honourable Justice Karan M. Shaner The Honourable Justice Frederica Schutz The Honourable Justice Kevin Feehan _______________________________________________________ Memorandum of Judgment

Appeal from the Conviction by The Honourable Justice B. Tulloch Dated the 5th day of February, 2016 ( 2016 NUCJ 2 ; Docket: 03-10-122-1) _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: I.

Overview [ 1 ] Peter Kingwatsiak appeals his conviction for the first degree murder of Mappaluk Adla, his step-brother, in a small community in Nunavut, on September 20, 2010, contrary to s 235(1) of the Criminal Code , RSC 1985, c C-46 . [ 2 ] Mr Kingwatsiak admits he committed manslaughter, contrary to s 236 of the Criminal Code , but submits he did not have the specific intent for murder (see s 229).

In the alternative, he submits his conviction should have been for second degree murder, as it was not planned and deliberate (see s 231(2)). [ 3 ] He was also convicted of aggravated assault on the same day of his uncle, Manu Kingwatsiak, contrary to s 268 of the Criminal Code , but that conviction is not appealed. [ 4 ] Mr Kingwatsiak brings an application for new evidence, alleging concerns with the English/Inuktitut

interpretation at his trial, leading to errors in assessment of his credibility and misapprehension of evidence. [ 5 ] For the reasons below, the new evidence application is dismissed. The appeal is dismissed. II. Admitted Facts [ 6 ] This is an appeal on intent, planning, and deliberation. There is no significant dispute on the facts, many of which were admitted in Agreed Statements of Facts filed at commencement and conclusion of trial. [ 7 ] At the time of the killing, Mr Kingwatsiak was 18. His former girlfriend was 15.

They had broken off their relationship sometime in the summer of 2010 and she had begun seeing Mr Adla, age 23, which caused Mr Kingwatsiak to become intensely jealous and angry. [ 8 ] In August 2010, Mr Kingwatsiak and a group of friends were at a campsite. Mr Kingwatsiak took about five gunshots at a rock, pretending it was Mr Adla’s head. A couple of weeks before the death, Mr Kingwatsiak told a friend a few times he would beat up Mr Adla. Approximately three days before the death, he told a friend more than once that he was going to kill Mr Adla.

During a Saturday night dance in the community on September 18, 2010, he showed a friend ten .303 calibre bullets in his hoody pocket and asked his friend whether he would help him kill Mr Adla. [ 9 ] After the dance ended at approximately 1:00 am on Sunday, September 19, Mr Kingwatsiak again told friends, including the former girlfriend, that he would kill Mr Adla. At approximately 2:00 am, the former girlfriend came upon the two men near the baseball diamond. Mr Kingwatsiak was holding a .303 calibre rifle, aiming it at Mr Adla.

She ran up to Mr Kingwatsiak and yelled at him to stop, saying that he should kill her, not Mr Adla. Mr Kingwatsiak told her he was going to kill Mr Adla; however, because he did not want her to see the killing, he put down the rifle and at her insistence, unloaded it and gave her ten .303 calibre bullets. [ 10 ] Later that morning, Mr Kingwatsiak told another friend that he “almost killed Mappaluk” but had refrained because he did not want the former girlfriend to see that happen.

Later, Mr Kingwatsiak and others brought three firearms with ammunition to his father’s house: a black .22 calibre rifle, a tan brown .410 gauge shotgun, and a tan brown 28 or 20 gauge shotgun. That evening, Mr Kingwatsiak told yet another friend that he intended to kill Mr Adla. [ 11 ] Over the course of the weekend, Mr Kingwatsiak asked the former girlfriend on at least four occasions whether she would go out with him again rather than Mr Adla and she repeatedly said she would not.

[12] In the early morning hours of Monday, September 20, Mr Kingwatsiak wrote a note and placed it in the family Bible. It said: there’s no tomorrow ... it’s too late now … [the former girlfriend] doesn’t want to see me … It’s too late to fix ... please don’t doanything to [the former girlfriend] no matter what happens to me ... I love you all ... there’s a lot of things going on. [13] Sometime after 2:00 am, Mr Kingwatsiak was seen walking through the community alone carrying a long gun in his hands,with a rifle strapped to his back.

At about 5:30 or 6:00 am, Mr Kingwatsiak’s father noted that his .22 calibre semi-automatic rifle wasmissing. [14] Between 5:30 and 6:00 am, Mr Kingwatsiak’s uncle awoke and found him standing in the kitchen holding a foot-long knifewith a black handle and silver blade. Mr Kingwatsiak swung at his uncle with the knife, slashing his face above the right eye in anunprovoked attack. The injury required eight sutures and adhesive strips to close.

Mr Kingwatsiak’s uncle telephoned the police at about6:00 am, and after hearing his account of events they proceeded to Mr Adla’s residence. [15] After leaving his uncle’s house, Mr Kingwatsiak went to the Adla house. He saw Mr Adla sleeping on the couch, placed the.22 calibre rifle barrel directly in front of his forehead and pulled the trigger. Mr Kingwatsiak then quickly left the house, picked up the.303 rifle which he had left close by, and hid both rifles in a friend’s shed.

He also discarded a shotgun on the mountain. [16] At approximately 6:45 am, Mr Kingwatsiak visited a friend and said he had just killed Mr Adla. Mr Kingwatsiak said he shotMr Adla in the middle of the forehead and showed his friend how he held the rifle against his shoulder with his index finger crookedwhere the trigger would be and aimed it downwards when he shot Mr Adla. [17] Mr Kingwatsiak stayed at his friend’s house for several hours and again repeated “lots of people don’t like him so I killedhim. I’m telling the truth”.

As other people awoke and joined Mr Kingwatsiak, he repeated to each of them that he had killed Mr Adlaand had stabbed his uncle. [18] At approximately 9:30 am, the local social worker drove Mr Kingwatsiak to his grandmother’s house. Police arrived atapproximately 9:40 am and seized the .22 calibre rifle and live rounds of ammunition, identifying the rifle as the one missing from MrKingwatsiak’s father’s porch. This was the rifle used to kill Mr Adla.

Later that evening, Mr Kingwatsiak admitted to the police that hehad killed Mr Adla, and while in detention he made the same admission to several other inmates. [19] Post-mortem examination showed that Mr Adla died from a gunshot wound to the centre of the forehead. Stippling to the skinindicated the gun was fired from between 30 and 60 centimetres away, with death ensuing rapidly. III. Grounds of Appeal [20] Mr Kingwatsiak appeals his conviction on the following grounds: (

a) problems in the English/Inuktitut

interpretation and the trial judge’s responses to those problems, whichcoupled with material misapprehensions of the evidence led to a miscarriage of justice; (

b) the trial judge’s assessment of Mr Kingwatsiak’s credibility was flawed; and (

c) the trial judge erred in her analysis of the mens rea for murder by failing to properly consider the effect ofimpairment by an intoxicant and provocation on the issues of intent, planning, and deliberation. IV.

Standard of Review [21] The standard of review on questions of law is correctness, on questions of fact is palpable and overriding error, and onquestions of mixed law and fact is palpable and overriding error unless there is an extricable error of law: Housen v Nikolaisen, 2002SCC 33, paras 7-37, [2002] 2 SCR 235. [22] Determining whether a misapprehension of evidence has caused a miscarriage of justice requires an appellate court to assessthe nature and extent of the error and its significance to the verdict. It is a stringent standard, met only when the misapprehension couldhave affected the outcome.

The misapprehension must be central to the “reasoning process resulting in a conviction”, and “material ratherthan peripheral to the reasoning of the trial judge”: R v Lohrer, 2004 SCC 80, para 2, [2004] 3 SCR 732; R v CEK, 2020 ABCA 2, paras10-11. An error that does not lead to miscarriage of justice is an error, but one without legal effect: R v Jaw, 2009 SCC 42, para 29,[2009] 3 SCR 26. V. New Evidence [23] Mr Kingwatsiak applies to admit new evidence on appeal pursuant to s 683(1)(

a) of the Criminal Code and the well-knownprinciples in Palmer v The Queen, (SCC), [1980] 1 SCR 759, 775, 106 DLR (3d) 212 and R v Lévesque, 2000 SCC 47,paras 1, 14-22, [2000] 2 SCR 487: (1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial, provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases; (2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

(3) the evidence must be credible in the sense that it is reasonably capable of belief; and (4) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to haveaffected the result. [24] The overriding consideration in application of these principles must be “the interests of justice”: Palmer, 775; Lévesque, paras14, 17. [25] In accordance with the procedure set out in R v Stolar, (SCC), [1988] 1 SCR 480, 491-492, 40 CCC (3d) 1,we reserved our decision on the new evidence application and considered it with the appeal. [26] The proposed new evidence is the opinion of Dr Marc-Antoine Mahieu, professor of linguistics in Paris, France, and DrValerie Henitiuk, professor of literature and translation at Concordia University of Edmonton, who address the adequacy of theEnglish/Inuktitut

interpretation in this trial. [27] Drs Mahieu and Henitiuk indicate that there exists no one-to-one equivalence between an Inuktitut word and an English word,and in Canada’s eastern Arctic there are approximately 15 different dialects; in this case, Kinngait. They say complex questions aredifficult to translate into Inuktitut, and “interpreting between English and Inuktitut is incredibly difficult, and sometimes impossible”. [28] In a detailed analysis of the recording of Mr Kingwatsiak’s testimony, Drs Mahieu and Henitiuk identified

interpretations theysay were not linguistically correct. There were instances where Mr Kingwatsiak himself disagreed with the

interpretation and provided analternate

interpretation. The first interpreter was replaced during the trial with a second one when the first interpreter advised: “I hadslight problems with Mr. Kingwatsiak’s dialect”. [29] Initially, when the trial judge asked Mr Kingwatsiak whether he was having difficulty with the

interpretation, he replied: “Soit is working out very well”. Later, in cross-examination, Mr Kingwatsiak did observe that “some [interpretations] are not being saidcorrectly”. At that point, the trial judge asked whether he would like to testify in English. He said he would not and the Court instructedhim by saying: If you don’t understand something that is happening in the [interpretation], just tell us that. All right, can you do that? On the second day of cross-examination, the trial judge advised Mr Kingwatsiak again that he could ask for

interpretation of words hedid not understand. [30] However, the proposed experts are critical of the trial judge far beyond concerns with

interpretation issues. They say she hadan “apparent lack of understanding of the gulf between any two languages, particularly those as different from one another as Englishand Inuktitut”. They say the trial judge made errors in her decision that “resulted in unfairness toward the accused”. The proposedexperts criticize the trial judge for observing that Mr Kingwatsiak was taking an excessive amount of time to respond during cross-examination, saying: “[a]t the very least such comments are culturally insensitive”.

They also criticize her for commenting that MrKingwatsiak was using his command of both Inuktitut and English to delay many of the responses he gave, and deliberately sloweddown the proceedings so he could carefully consider what his answer to a question should be, rather than answering in a forthright andnon-evasive manner. They say it is “our opinion that both of these statements are highly problematic, and indeed erroneous”. [31] The Crown submits that the proposed experts are not qualified to give the opinions they do.

Neither of the proposed expertsspoke directly to Mr Kingwatsiak, neither had any knowledge of his facility in English, are qualified in Inuktitut dialects, have ever beento Nunavut or listened to Nunavut trials, studied Inuit cultural norms, or trained in legal

interpretation. Dr Henitiuk admitted she only hadlimited knowledge of Inuktitut, and her primary role was to translate Dr Mahieu’s comments from French to English for the report. DrMahieu’s specialist area of interest is in the syntax of Finnish noun phrases, and Inuktitut is only a side interest. [32] The Crown says the proposed experts invite overturning the trial judge’s findings on credibility and raise systemic bias on herpart. However, they have no training in judicial indigenous stereotyping in Canada or elsewhere, and are not experts in ethnography.

TheCrown says the probative value of the expert evidence must outweigh its prejudicial effects, and these proposed experts are not impartialbut advocate a position about which they are passionate. This shows bias and their opinions should be inadmissible. [33] It is clear that Mr Kingwatsiak has the right to Inuktitut

interpretation pursuant to s 14 of the Canadian Charter of Rights andFreedoms,

Part I of the Constitution Act, 1982, enacted by the Canada Act 1982 (UK), c 11. [34] The law with respect to the right to

interpretation is examined in R v Tran, (SCC), [1994] 2 SCR 951, 92CCC (3d) 218. There is a four-part test to determine a breach of that right, Tran, 979-980, 996: 1. it must be clear that the accused is actually in need of interpreter assistance; 2. there has been a departure from the basic, constitutionally guaranteed standard of

interpretation, the standard of continuity,precision, impartiality, competency and contemporaneousness; 3. any lapse in proper

interpretation must have occurred when a vital interest of the accused was involved, while the case was beingadvanced, rather than at some point or stage which was extrinsic or collateral to the advancement of the case; and 4. there was not a valid and effective waiver of that right to proper

interpretation which accounts for the lapse in, or lack of,interpretation. This is a very high threshold. [35] Tran provides that the standard of

interpretation “should not be one of perfection”, but need only provide the accused thesame opportunity to understand and be understood as if they were conversant in the language being employed in the proceedings, 985,987, 998.

[ 36 ] The

interpretation must be of a high enough quality to ensure that justice is done and seen to be done: Tran , 988. Consecutive

interpretation, utilized here, has the advantage of allowing inaccuracies to be spotted and addressed, 990. [ 37 ] It will not be every deviation from the protected standard of

interpretation which will constitute a violation: Tran , 991. Any lapse must involve the vital interests of the accused in advancing the case, and not merely be in respect of some collateral or extrinsic matter, 991, 993. [ 38 ] Differences in

interpretation are technical or procedural concerns and would not be substantive new evidence that would be heard by a trier of fact. This Court is in the same position as a trial judge to review the linguistic concerns raised by the proposed experts and determine whether their proposed alternate

interpretations, if taken to be correct, could reasonably be expected to have affected the result. As to the criticisms of the trial judge, none of these comments is helpful or appropriate from proposed linguistic experts, whose area of expertise is grammatical

interpretation. We pay no attention to these criticisms. [ 39 ] A careful review of the instances of

interpretation concerning to Drs Mahieu and Henitiuk do demonstrate differences in sentence structure, grammar, and some individual word selections. However, the meaning and intent of the

interpretation is always clear. The linguistic

interpretation does not appear to have affected the understanding of the exchange. When Mr Kingwatsiak identified a concern with the quality of

interpretation, the court fully and properly addressed the issue. [ 40 ] The proposed new evidence does not bear upon a decisive or potentially decisive issue at trial, and cannot reasonably be expected, when taken together with the evidence at trial, to have affected the result. It is not admitted and the application is dismissed. VI. Intent, Planning, and Deliberation i.

Mr Kingwatsiak’s evidence [ 41 ] Mr Kingwatsiak says he did not have the specific intent to kill Mr Adla because he was severely impaired from sniffing gasoline, emotionally distraught, and provoked by the relationship between his former girlfriend and Mr Adla. He says this provocation was relevant to his state of mind and the extent of his planning and deliberation. [ 42 ] As to the evidence of gasoline sniffing, Mr Kingwatsiak said he was at all times alone and no one else saw him sniffing gasoline on the morning of the killing.

He said he had begun sniffing gasoline perhaps at about 12 years of age, and in August 2010 he would sniff gasoline whenever he went camping, probably every weekend. [ 43 ] Mr Kingwatsiak said around 3:00 or 3:30 am on Monday morning, September 20, he went down to the beach and was sniffing gasoline directly from the fuel tank of his grandfather’s boat until he became numb. He said he had a period of blackout, but when he awoke he continued to sniff gasoline from the boat and was feeling high.

When he arrived at his uncle’s house that morning, he went to his uncle’s Honda motorbike and started to sniff gasoline from the gas tank. He thought he saw his uncle watching him from the window and was concerned his uncle would tell his parents. That is why he went into the house to confront his uncle. After the stabbing, he says he left the house and saw a ski-doo.

He opened up the gas tank of the ski-doo and sniffed more gasoline, holding it in his lungs so that the high was more intense. [ 44 ] On the weekend and on Monday, September 18 to 20, all but one of the persons he encountered said they did not smell gasoline on Mr Kingwatsiak or think he was intoxicated. That was the evidence of his friends at the dance on Saturday evening, at the time of the incident on Sunday morning when Mr Kingwatsiak was pointing the .303 calibre rifle at Mr Adla, and when talking to friends on Sunday evening.

During the assault of his uncle on the Monday morning, it was his uncle’s evidence that “he wasn’t drunk or on drugs but he wasn’t normal”. His uncle did not smell any gasoline or alcohol on him and told the police that Mr Kingwatsiak was not drunk at the time. [ 45 ] After the killing, when Mr Kingwatsiak was at his friend’s house, the friend’s evidence was that he smelled of gas. But at his grandmother’s house later that morning, she did not notice him showing any signs of intoxication and did not smell any intoxicants on him.

The arresting police officers said he appeared to be oriented and sober, had no difficulty understanding them, and they did not smell any alcohol, marijuana, or gasoline. ii. Expert evidence [ 46 ] The evidence of four experts was admitted: Dr Klassen, forensic psychiatrist, called by the Crown; and Dr Chaimowitz, forensic psychiatrist; Dr Rosenbloom, pharmacologist; and Dr Mamak, a psychologist who performed psychological testing utilized by Dr Chaimowitz, all called by the defence.

All of the experts relied solely on information provided by Mr Kingwatsiak. [ 47 ] Dr Klassen concluded that inhalants, like gasoline, may have played a role in the stabbing incident, but not the shooting, because of the declining effect of the inhalant.

He said there was no evidence of profound or significant intoxication which would cause Mr Kingwatsiak to lack capacity to form the specific intent for murder at the time of the shooting. [ 48 ] Dr Mamak’s testing showed “levels of deception” which tended to suggest that Mr Kingwatsiak was malingering or distorting the facts. [ 49 ] Dr Chaimowitz opined that the unprovoked nature of the attack on Mr Kingwatsiak’s uncle seemed to indicate he was intoxicated. Dr Chaimowitz testified, however, that the effects of gas sniffing can wear off quite quickly or last a few hours.

He said he received conflicting reports from Mr Kingwatsiak about the shooting, but overall Mr Kingwatsiak did provide a detailed and consistent sequence of events. Dr Chaimowitz said on a balance of probabilities, he believed Mr Kingwatsiak lacked the capacity to form the specific intent for murder at the time he shot and killed Mr Adla.

[ 50 ] Dr Rosenbloom had two short telephone conversations with Mr Kingwatsiak relating to his history of gas sniffing. Dr Rosenbloom said a person inhaling gas would experience an alcohol-like effect within a few minutes and it could last for five to six hours. iii.

The specific intent for murder [ 51 ] The trial judge carefully reviewed the required specific intent for murder: that the person who causes the death of a human being means to cause his death, or means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not (s 229 Criminal Code ) . [ 52 ] The trial judge accepted that in the early morning hours of September 20, 2010, Mr Kingwatsiak was sniffing gasoline at his grandfather’s boat and from his uncle’s motorbike.

She found that he “woke up” after having stabbed his uncle, indicating that his level of intoxication was significantly reduced by the time he killed Mr Adla. She said his “actions and conduct following this event [the attack on his uncle] appear to be those of someone who knew what he was doing when he went into the Adla home”. [ 53 ] The trial judge did not find Mr Kingwatsiak to be a credible witness. As noted, she also found all of the expert opinions were based solely upon his often contradictory evidence.

The trial judge found that there was no evidence from anyone that Mr Kingwatsiak’s speech was abnormal, he did not slur his words, act like he was drunk, or show evidence of intoxication immediately after the killing. She said the evidence of gas sniffing “does not leave this Court with a reasonable doubt with respect to the accused’s intentions at the time he delivered the fatal shot”.

She found Mr Kingwatsiak specifically “intended his actions when he shot and killed Mappaluk Adla”. [ 54 ] The trial judge properly reviewed the law on specific intent for murder, thoroughly considered Mr Kingwatsiak’s evidence and the expert evidence, and reached thoughtful conclusions based upon all of the evidence, taken as a whole.

Findings on credibility should not be disturbed on appeal unless they are clearly unreasonable: R v Hilton , 2016 ABCA 397 , para 15 , 343 CCC (3d) 304; R v Salomonie , 2020 NUCA 1 , para 22 ; R v SMC , 2020 ABCA 19 , para 19 ; R v MLC , 2021 ABCA 224 , para 16 ; R v Algiak , 2021 NUCA 14 , para 13 . Weighing of evidence attracts significant deference. There is no palpable and overriding error in the trial judge’s apprehension and weighing of the evidence. iv. Planning and deliberation [ 55 ] As to first degree murder, the trial judge set out the requirements for planning and deliberation, providing

definitions and jury instructions from David Watt, Watt’s Manual of Criminal Jury Instructions , 2d ed (Toronto: Carswell, 2015), 691. She acknowledged that intoxication can raise a reasonable doubt regarding the planning and deliberation required for first degree murder, even if it leaves no doubt regarding the specific intent for murder.

She said that the “effect of any real or imagined provoking words or conduct from others that may have affected [Mr Kingwatsiak’s] state of mind is important”. [ 56 ] The trial judge repeated that she found the evidence of Mr Kingwatsiak that he did not mean to kill Mr Adla neither “credible nor reliable”. She found the evidence of friends to whom he had indicated he was going to kill Mr Adla, both credible and reliable. The trial judge found Mr Kingwatsiak turned his threats into action, following through on what he had told others he was going to do.

She found he “formed the plan to complete the act he had already rehearsed”. [ 57 ] The trial judge determined the note left in Mr Kingwatsiak’s Bible was evidence he had considered the consequences of what he was about to do but decided to do it anyway. She reviewed the evidence of the collection of firearms; the decision to sniff gasoline, “which may or may not have been part of the initial plan”; aiming the barrel of the loaded .22 calibre rifle at Mr Adla’s forehead; and deliberately pulling the trigger.

She found Mr Kingwatsiak quickly left the Adla residence, hid both of his rifles, and had discarded his shotgun somewhere on the mountain.

He then spent two hours at a friend’s residence, where he did not appear to be drunk or confused, and told several individuals about the details of the killing. [ 58 ] The trial judge said the gas sniffing that morning “does not raise a reasonable doubt with respect to [Mr Kingwatsiak’s] ability to plan Mappaluk Adla’s death and it does not raise a reasonable doubt with respect to his actions in deliberately carrying out that plan”. [ 59 ] After proper consideration of the law, and review and weighing of the evidence, the trial judge concluded the murder of Mr Adla was both planned and deliberate.

There is no error in her recitation of the law, her review of the evidence, or the application of the law to the evidence. The weighing of the evidence by the trial judge is entitled to deference and her conclusion that the killing of Mr Adla was both planned and deliberate is reasonable, supported, and without palpable and overriding error. VII. Conclusion [ 60 ] The new evidence application is dismissed. The appeal is dismissed. Appeal heard on September 21, 2021 Memorandum filed at Iqaluit, Nunavut this 18th day of October, 2021

Authorized to sign for: Shaner J.A. Authorized to sign for: Schutz J.A. Feehan J.A. Appearances: M. Bryant/P. Plourde for the Respondent A. Crowe for the Appellant