Her Majesty the Queen - v. -, 2020 SKPC 21

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 21 Date: May 21, 2020 Information: 991082240 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Judith Sugil Sasakamoose Appearing: Ms. Cynthia Alexander For the Crown Mr. Patrick McDougall For the Accused Note: The ban on publication that was imposed pursuant to s. 539 of the Criminal Code has been lifted . DECISION ON PRELIMINARY INQUIRY S.D. SCHIEFNER, J INTRODUCTION [ 1 ] Tragically, Albert Gunville died on February 20, 2019, in Prince Albert, Saskatchewan.

The medical evidence indicates that his death was caused by a single stab wound to the left side of his chest. A blade penetrated his body to a depth of possibly four to five cm and punctured his heart which led to his death. The injury was likely caused by a common kitchen paring knife.

[2] Judith Sugil Sasakamoose is charged with committing second degree murder in relation to Mr. Gunville’s death. Apreliminary hearing was conducted before me on November 27 and 28, 2019 and continuing on May 1, 2020. Crown and defensecounsel were prepared for this hearing and were effective in fulfilling their respective roles. The Crown called nine witnesses: fivecivilians and three police officers, as well as Dr. Shaun Ladham, the pathologist who conducted the autopsy. [3] The Crown’s theory is that Ms. Sasakamoose was angry at Mr. Gunville and that during an argument with him she walkedover to Mr.

Gunville and stabbed him in the chest. The Crown argues that an inference can be drawn from the evidence – including thelocation of the wound and the surrounding circumstances - that Ms. Sasakamoose intended to cause Mr. Gunville’s death. The defensetakes the position that there is insufficient evidence to commit Ms. Sasakamoose to stand trial on the charge of murder. [4] Having carefully considered the evidence tendered in these proceedings and having considered the duty imposed upon mepursuant to s. 548 of the Criminal Code¸ in my opinion, the Crown has not tendered sufficient evidence to put Ms.

Sasakamoose on trialfor murder but there is sufficient evidence to put the accused on trial for the offence of manslaughter. [5] My reasons for coming to this important decision are as follows. THE LAW [6] A preliminary inquiry is a pretrial screening procedure, the primary purpose of which is to ensure that the Crown candemonstrate the sufficiency of evidence before an accused is placed on trial in the superior court. A secondary purpose exists and thatpurpose is to provide a discovery mechanism to the accused – a mechanism by which the nature and strength of the Crown’s case can beassessed by defense counsel.

See R v Russell, 2001 SCC 53 at para 20, [2001] 2 SCR 804 [Russell]. [7] In conducting this preliminary inquiry, it is not my duty to determine guilt or innocence. Rather, my duty is to determine ifthere is sufficient evidence for Ms. Sasakamoose to be committed to stand trial for the offence charged – in this case, second degreemurder. The Crown must satisfy me that there is some evidence on each of the essential elements of the offence charged.

If it does not,I am required to discharge the accused unless I am satisfied the evidence supports committal for another offence in respect of the sametransaction (such as manslaughter in this case). I will discuss the requisite elements of these offences later in these reasons. For now, itis enough to note that my role in these proceedings is merely to screen the evidence with respect to sufficiency; not to be the trier of fact. [8] For example, it is not my function to make determinations regarding the application of potential defenses, such asintoxication or provocation.

While there can be exceptions, such as was in the case of R v Poundmaker, 2005 SKPC 7, findings of factare matters that must be left to the jury. Simply put, while I may hear exculpatory evidence and while defense counsel may (and did)cross-examine witnesses to discover and/or elicit evidence of a potential defense, I must be careful not to usurp the function of the juryby making findings of fact. It is for the trier of fact to determine what evidence to accept or reject and to determine what inferences oughtto be drawn from the evidence that is accepted.

See: R v Arcuri, 2001 SCC 54 at para 22, [2001] 2 SCR 828 [Arcuri]. [9] My duty is to determine whether a properly instructed jury could convict Ms. Sasakamoose if the evidence before me isaccepted. See: United States v Shephard (1976), (SCC), 30 CCC (2d) 424 (SCC). See also: Arcuri at para. 21. [10] If I hear conflicting evidence during a preliminary inquiry, it is not my duty to determine whom I believe (or do not believe) orto make determinations regarding the credibility of witnesses or the reliability of their evidence. I must assume the witnesses are credibleand their evidence is reliable.

See: R v Sazant, 2004 SCC 77 at para 16, [2004] 3 SCR 635 [Sazant]. Furthermore, it is important torecognize that evidence may give rise to more than one reasonable inference. If such is the case, I must commit if one of the availableinferences supports committal. See: Russell at para.48. In short, I must not attempt to resolve conflicting inferences or

interpretations ofthe evidence. Rather, I must make my determination on committal based on the view of the evidence that is most favorable to theCrown. See: Sazant at para. 25. [11] The test for committal is the same whether the Crown’s evidence is direct or circumstantial. However, the nature of thejudge’s task varies according to the type of evidence relied upon by the Crown. Where the Crown’s case is based entirely on directevidence, my task is straightforward. If there is direct evidence tendered at a preliminary inquiry on every element of the offence, thepresiding judge must commit. See: Arcuri at para. 22.

However (as in this case), where a portion of the Crown’s case is based oncircumstantial evidence, the task of assessing the sufficiency of that evidence becomes more challenging. As noted by the SupremeCourt of Canada in Arcuri at para. 23, a limited weighing of the evidence is permitted by the preliminary inquiry judge and necessary in

order to determine whether the inferential gap can be bridged for those elements where the Crown has not called direct evidence and relies on one or more inference from circumstantial evidence. On this important point, para. 23 of the Court’s decision in Arcuri warrants repeating: [23] The judge’s task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence.

The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has not advanced direct evidence – may reasonably be inferred from the circumstantial evidence.

Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should be believed: see Watt’s Manual of Criminal Evidence , supra , at §9.01 (circumstantial evidence is “any item of evidence, testimonial or real, other than the testimony of an eyewitness to a material fact.

It is any fact from the existence of which the trier of fact may infer the existence of a fact in issue”); McCormick on Evidence, supra , at pp. 641-42 (“[c]ircumstantial evidence . . . may be testimonial, but even if the circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion”). The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited.

The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed , could reasonably support an inference of guilt. THE EVIDENCE Events of February 20, 2019 : [ 12 ] Five witnesses testified as to the events leading up to Mr. Gunville’s death. They were: Howard Bellrose (Howard), Douglas George Bellrose (George), Amy Lariviere (Amy), Sheila Cook (Sheila), and Angelene Cheney (Angie). In their testimony, these witnesses used first names to refer to each other.

Out of convenience (not disrespect), I will do the same. All of these people knew each other and/or were related. They also all knew Mr. Gunville and many were understandably emotional during their testimony. Finally, with the exception of Angie, all of the witnesses had been drinking in the hours leading up to Mr. Gunville’s injuries. [ 13 ] Much of the testimony from witnesses was consistent. Certainly, it was as consistent as one might reasonably be expected from individuals who had consumed alcohol and then suddenly experienced a traumatic event.

I will identify where I observed inconsistencies in the evidence. [ 14 ] Howard testified that he and Mr. Gunville had been friends for over 20 years. It was at Howard’s home at 1239 17 th Street West, Prince Albert, Saskatchewan where the facts relevant to this inquiry took place. They took place on February 20, 2019. [ 15 ] Howard was on vacation that week. He candidly admitted that he would occasionally binge drink and that this vacation was such an occasion. While Howard normally lived alone, on the morning of February 20, 2019 both George and Amy were present.

George and Amy had been drinking with Howard the day before and both stayed overnight. In terms of his relationship with these individuals, George is Howard’s uncle. While Amy and Howard were romantically involved at some point in the past, they were not at the time relevant to these proceedings. They were just friends. [ 16 ] On the morning of February 20 th , there were three people present; namely, Howard, George and Amy. They woke that morning and around 9:30 a.m. they collectively decided to get some more alcohol so they could continue drinking.

They called a cab, travelled to an off-sale location and Howard purchased both beer and vodka. Howard testified he purchased 48 cans of beer and 26 ounces of vodka. Amy thought Howard purchased 24 cans of beer and 60 ounces of vodka. The group then returned to Howard’s place and began drinking. [ 17 ] At some point, two additional people came to Howard’s place that day to drink with them. They were Ms. Cook (Sheila) and Ms. Tamara Bear (Howard referred to her as “Tamara Bird”). Ms. Cook was friends with both Howard and Amy. [ 18 ] Ms.

Bear’s relationship with the group and her observations from the evening of February 20, 2019 are unknown as she did not testify.

[ 19 ] Howard testified that he wanted Mr. Gunville to come join them. He phoned Mr. Gunville around noon and specifically asked him to come over and join them. In doing so, Howard asked Mr. Gunville not to bring anyone with him that they did not know. Howard thought Mr. Gunville arrived at approximately 1:00 p.m. that day. However, Angie testified that she received a phone call from Mr. Gunville between 2:00 and 4:00 p.m. and that Mr. Gunville called from his home phone. She recognized his number. All witnesses agreed that Mr. Gunville arrived at Howard’s place in the afternoon of February 20, 2019.

Howard thought he arrived earlier than Angie’s evidence would indicate. [ 20 ] All witnesses agreed that when Mr. Gunville arrived, he was not alone - Judith Sasakamoose was with him. Howard testified that he had not met this woman before and that Mr. Gunville had not mentioned her name previous to this visit. He said he only learned her full name later. Similarly, Amy, George and Sheila each testified that they had not had previously met Ms. Sasakamoose. While Howard only learned her name later, both he and Sheila were able to visually identify Ms. Sasakamoose. [ 21 ] Howard testified that neither Mr.

Gunville nor Ms. Sasakamoose were overly intoxicated (if at all) when they arrived. But upon arrival, both Mr. Gunville and Ms. Sasakamoose joined the party, so to speak, with everyone sitting around the kitchen table drinking, listening to music, and talking. At this time, the following people were present: Howard, George, Amy, Sheila, Mr. Gunville and Ms. Sasakamoose. [ 22 ] With one significant exception, Howard and Sheila both described the mood of everyone as good. The exception was that Mr. Gunville and Ms. Sasakamoose were arguing. Howard testified that the nature of the argument was that Ms.

Sasakamoose had accused Mr. Gunville of having non-consensual sex with her while she was sleeping. Ms. Sasakamoose was angry at Mr. Gunville. Mr. Gunville was defending himself and telling Howard and everyone else present that he was not that kind of person. Howard testified that Ms. Sasakamoose and Mr. Gunville were not arguing all the time. He indicated that things would calm down for a while and then the argument between the two would heat up again. [ 23 ] At one point during the argument, Mr. Gunville called Angie. Angie is Howard’s cousin and was a very close friend of Mr. Gunville.

Angie testified that this call took place around 6:00 p.m. on February 20, 2019. Howard testified that Mr. Gunville was upset at being accused of sexually assaulting Ms. Sasakamoose and wanted Angie to tell those present that he was not “that kind of person”. [ 24 ] Angie testified that she had known Mr. Gunville for years and that she considered him to be one of her best friends. Angie also testified that Mr. Gunville called her three times on February 20, 2019. The first call was around 11:00 a.m. This call was from Mr. Gunville’s home phone. She recognized the number. Angie testified that Mr.

Gunville was upset because someone by the name of “Jud” or “Judy” was with him and this person was accusing him of “doing something to her”. Angie said she told Mr. Gunville to “kick her out”. The second call was approximately four hours later or sometime between 2:00 and 4:00 p.m. – Angie was not sure when. Angie testified that this call also came from Mr. Gunville’s home phone. Angie believed the woman was still there and Mr. Gunville was still upset about being accused of doing “something to her”. Angie testified that, based on his voice, she assumed that Mr.

Gunville had been drinking but did not think very much. Angie testified that the third call was around 6:00 p.m. and it was from Howard’s number – not Mr. Gunville’s home phone. Angie recognized Howard’s phone number when Mr. Gunville phoned the third time. Angie said that Mr. Gunville was trying to “defend himself”. Angie testified that she spoke to both Mr. Gunville and Howard during the call. Angie testified that she could hear music in the background and from knowing Mr.

Gunville and from the sound of his voice, Angie felt that he had been drinking and was “more tipsy” than when she spoke with him during the previous calls. On the other hand, Angie also testified that she could “still understand him”. The Stabbing : [ 25 ] Howard testified that, immediately prior to the stabbing, Mr. Gunville was in the kitchen and so were Howard, Ms. Sasakamoose, and Sheila. Sheila testified that George was also in the kitchen. However, George testified that he was sleeping on the couch at the time.

Both Amy and George testified that immediately prior to the stabbing, they were sleeping on opposite ends of the couch in the living room. [ 26 ] Howard testified that, immediately prior to the stabbing, he did not notice anything other than that Mr. Gunville and Ms. Sasakamoose were standing by the kitchen table and that the argument between them was getting heated again. Howard testified that he was not paying attention to them at the time and the next thing he knew things got “hectic”. Howard testified that Mr. Gunville approached him, said “Judith stabbed me”, and he lifted his shirt.

Howard said he could not see a wound but he could see blood on Mr. Gunville’s chest and that Ms. Sasakamoose was holding a paring knife. Howard testified that he did not see where the knife came from but he assumed that it was one of his paring knives. Mr. Gunville then fell to the floor.

[ 27 ] Howard testified that, because he thought Ms. Sasakamoose was still holding a knife, he hit her on the face with his back hand, then pushed her to the ground and then held her on the ground in front of the fridge. Howard testified that George came into the kitchen and Howard asked him to help hold Ms. Sasakamoose while he called the police. [ 28 ] Sheila testified that she and Howard were seated at the kitchen table; that Mr. Gunville was standing immediately behind her; and that Ms. Sasakamoose was standing by the microwave on the other side of the kitchen by the kitchen table.

Sheila testified that immediately prior to the stabbing, Ms. Sasakamoose moved toward Mr. Gunville. Sheila did not see what happened because Mr. Gunville was behind her. Sheila testified that, after Ms. Sasakamoose moved across the room, Mr. Gunville fell to the ground. She could see blood. When she saw the blood, Sheila ran out of the house and called out for someone to help. [ 29 ] Howard testified that he called 911. [ 30 ] Amy testified that she did not see what happened in the kitchen. She candidly admitted that she was very intoxicated that day. She testified that she remembered Mr.

Gunville arriving with a woman. Amy did not know who the woman was and testified that she did not speak with her. Simply put, Amy remembered very little of the events of February 20, 2019. The last thing she could remembered was Howard, Mr. Gunville and herself going into the living room and picking out some music. The next thing she remembers was waking up at the police station. [ 31 ] George testified that he also did not see what happened in the kitchen. He also candidly admitted that he was very intoxicated that day. George testified that he normally lived in Saskatoon but at the time he was living with Mr.

Gunville. George remembered Mr. Gunville being present at Howard’s on February 20, 2019. George remembered a woman being with him but he did not know her name. He said he had never met her before. George testified that Howard, Amy and Sheila were present at the time but could not remember anyone else being at Howard’s place that afternoon [such as Tamara Bear]. George testified that he was sleeping on the couch in the living room with Amy asleep at the other end. George woke when he heard a ruckus; meaning he could hear people yelling and said that everyone was talking at the same time.

When he arrived at the kitchen, he saw Mr. Gunville lying on the floor and Howard holding Ms. Sasakamoose down on the floor in front of the fridge. George testified that there was only the three people in the room. He said that neither Sheila nor Amy were in the kitchen when he got there. George testified that he saw a knife on the floor in front of the sink and that he picked up the knife and put it in the sink. George testified that he then began helping Howard hold Ms. Sasakamoose on the floor until the police arrived.

Police Involvement : [ 32 ] Officer Aron Popescul is a constable with the Prince Albert Police Force. Constable Popescul was on duty on February 20, 2019. He arrived at the scene at shortly after 6:39 p.m. Other officers arrived at the same time. Constable Popescul entered the house and observed Judith Sasakamoose in the living room area. She had a bloody nose. Constable Popescul removed Ms. Sasakamoose from the house and placed her in his police vehicle.

Constable Popescul noted that a person by the name of Tamara Bear was present in the house at the time. [ 33 ] Sergeant Ryan Levesque collected the forensic evidence at the scene. While he photographed the entire house, he focused on the kitchen. Blood was visible on the floor of the kitchen. There was a paring knife on the floor. It was seized. There were similar paring knives in the kitchen sink – at least one of which was seized. On the table and on the kitchen counter, there were numerous apparently empty cans of beer. [ 34 ] Mr.

Gunville received emergency medical assistance both at the scene and at the Victoria Hospital in Prince Albert. However, he died at approximately 7:30 p.m. on February 20, 2019. The Autopsy : [ 35 ] Dr. Shaun Ladham is a forensic pathologist. He was qualified to give opinion evidence on the causes of human injuries and death. Dr. Ladham conducted an autopsy on February 21, 2019 at the Saskatoon City Hospital. Dr. Ladham’s autopsy report was accepted as evidence in these proceedings, together with a toxicology reported prepared by Tracy Cherlet, Ph.D.

[36] As a result of his examination, Dr. Ladham observed a single stab wound from a blade having perforated the left side of Mr. Gunville’s chest below his left breast. The blade caused a 1.3 to 1.5 cm wound and perforated the soft tissue between the 6th and 7th rib.The pathway of the blade was backward, rightward and slightly up. The blade perforated the pericardial sac and the heart. Dr. Ladhamtestified that the blade would have penetrated less than 10 cm into the body, with an estimated penetration of four or five cm.

Dr.Ladham noted that the bottom of the heart was very close to the point where the blade entered the body. As the doctor noted, at thisparticular point on the body, it would not have taken a very big blade to cause the damage he observed. [37] Dr. Ladham’s autopsy report describes the cause of the death as follows: The cause of death of this 50-year-old male is a stab wound of the chest. In this stab wound the blade perforated the heart leading toblood coming into the sac and out of the stab wound itself.

I cannot say that there was excessive loss based on the information availableto me but there is a large amount of blood around the heart in the pericardial sac (i.e. hemopericardium) and this would have preventedthe heart from adequately beating. This accumulation of blood acutely around the sac and interference with the heart function is known ascardiac tamponade. In my opinion, the cardiac tamponade and direct damage to the heart is what led to his death. There is no evidence ofany other significant trauma that played a role in the death. [38] In cross-examination, Dr.

Ladham noted that the stab wound was located in an area of the body where most people would notthink the heart is located. The doctor noted that most people think the heart is approximately in the middle of the chest. However, Dr.Ladham testified that the heart is located more on the left side and that it sits more horizontally in the human body. Dr. Ladham alsotestified that, because the blade entered between two ribs, very little pressure from the knife would have been required to penetrate thesoft tissue and organs of the body after the blade perforated the skin. [39] The toxicology report indicated that Mr.

Gunville had consumed a significant quantity of alcohol, with post-mortemblood/alcohol concentrations between 312 mg% to 363 mg%. In the report, the forensic specialist noted that blood/alcoholconcentrations of 250 mg% and beyond are associated with severe intoxication. ANALYSIS [40] Homicide is defined in s. 222 of the Criminal Code as occurring when a person causes the death of a human being. Thissection also defines when homicide is culpable. For example, culpable homicide occurs where death is caused by an unlawful act.Culpable homicide is classified as either murder or manslaughter.

Generally speaking, the distinction between these two offences centerson the mental element, namely what the accused intended at the time of the conduct that resulted in death. To obtain a conviction formurder requires proof beyond a reasonable doubt of the subjective foresight of death in the mind of the accused. See: R v Martineau, (SCC), [1990] 2 SCR 633 [Martineau]. This is a high threshold. However, the mens rea for murder can be satisfied intwo ways. Under s. 229(a)(

i) of the Criminal Code, culpable homicide is murder if the accused subjectively intended to cause thevictim’s death when committing the unlawful act. Under s. 229(a)(ii), it is also murder if the accused subjectively intended to causebodily harm and the accused knew that the bodily harm was so serious and so dangerous that it was likely to cause the victim’s death. As noted by the court in R v Cooper, (SCC), [1993] 1 SCR 146 [Cooper], there is only a “slight relaxation” in themens rea required for a conviction for murder under s. 229(a)(ii) as compared to s. 229(a)(i).

It is not enough that death is a possibleoutcome of the unlawful act – the accused must be aware that it is the likely outcome. [41] In these proceedings, a committal for trial on the charge of murder is warranted only if I am satisfied that there is someevidence on both the physical and mental elements of murder. As to the physical elements (the unlawful act), I must be satisfied thatthere is some evidence that Ms. Sasakamoose stabbed Mr. Gunville and that the stab wound was either directly or indirectly the cause ofhis death.

As to the mental element, I must be satisfied that there is some evidence upon which a jury could find that Ms. Sasakamooseheld a subjective intention to cause Mr. Gunville’s death or that she held a subjective intention to cause bodily harm, together with thesubjective knowledge that the bodily harm she intended to cause to Mr. Gunville was of such a nature – it was so dangerous and serious -that it was likely to cause his death. See: Cooper. [42] A committal for manslaughter is warranted only if I am satisfied there is some evidence upon which a properly instructed jurycould find that Ms.

Sasakamoose intended to stab Mr. Gunville and the nature of this action was objectively dangerous. In other words,bodily harm was a reasonably foreseeable consequence of her actions irrespective of whether or not she foresaw the danger of death.See: R v DeSousa, (SCC), [1992] 2 SCR 944 and R v Creighton, (SCC), [1993] 3 SCR 3. [43] Several of the witnesses testified that Ms. Sasakamoose and Mr. Gunville were arguing on February 20, 2019. They testifiedthat she accused him of sexually assaulting her the evening prior – an allegation which Mr. Gunville repeatedly denied. Mr. Bellrose

(Howard) testified that the argument got heated again just prior to Mr. Gunville’s injuries. Ms. Cook (Sheila) testified that, immediately prior to Mr. Gunville falling to the floor, she saw Ms. Sasakamoose walk across the kitchen toward him. Howard testified that Mr. Gunville came to him, lifted his shirt and said the words “Look, cus, Judith stabbed me”. Howard then saw Ms. Sasakamoose holding a knife. Police found a paring knife on the floor in the kitchen. Dr.

Ladham testified that a knife of this nature could have caused the injuries that he observed and that these injuries were the cause of his death. [ 44 ] In my opinion, there is clearly evidence upon which a properly instructed jury could concluded that Mr. Gunville was stabbed with a paring knife in Mr. Bellrose’s kitchen on February 20, 2019. There is also evidence upon which a properly instructed jury could conclude that it was Ms. Sasakamoose that stabbed him. Finally, there is clear evidence that the stab wound was either directly or indirectly the cause of Mr.

Gunville’s death. [ 45 ] Common sense and human experience tell us that people intend the obvious consequences of their actions. In the event a jury was satisfied that the cause of Mr. Gunville’s death was a stab wound inflicted by Ms. Sasakamoose, there would be reasonable (if not compelling) inference that she intended to stab him.

However, as I have noted, evidence supporting a very specific state of mind is required to commit the offence of murder – the intention to cause death or the subjective foresight that it is likely to occur. [ 46 ] Evidence of a person’s intent to cause death may be found in direct evidence (such as the accused’s own words – R v Lavallee , 2017 SKPC 27 at para. 77 [ Lavallee ]) or it may be inferred from the totality of the circumstances, including the conduct of the accused and the context within which the violence occurred.

For example, when a weapon is used, the following factors have been found to be relevant to determining the specific intent to kill; the nature of the weapon used including its lethality – R v McArthur , 2013 SKCA 139 at para 10 , 427 Sask R 180; how the weapon was used including the force with which the wounds were inflicted – R v Gamble and Bluebell , 2010 SKQB 414 at para 12 , 363 Sask R 311 [ Gamble ]; the nature of the wounds and whether they were to a vital part of the anatomy – R v Bear , 2013 SKQB 303 at para 29 , 428 Sask R 166; and the persistence of the attack – in the case of a knife, whether the stabbing was repeated – Gamble at para. 12, Lavallee at para. 78 and R v Paskimin, 2012 SKCA 35 at para 37 . [ 47 ] I am not satisfied, based on the evidence presented in these proceedings, that a jury could reasonably conclude that Ms.

Sasakamoose intended to cause Mr. Gunville’s death by the actions she took or that she must have known – that she foresaw - that death was a likely outcome from the act of stabbing him. In coming to this conclusion, I note that there is no evidence of any specific words spoken by Ms. Sasakamoose immediately prior to the stabbing stating her intention or from which her intention could be inferred. [ 48 ] As to other circumstantial evidence, while there is evidence of a deep wound, there is no evidence of persistence or repetition of the violence. Dr. Ladham only observed one stab wound.

Furthermore, in my opinion, there is a poor foundation for the conclusion that any significant degree of force was used to cause the injuries. While the blade penetrated deeply into Mr. Gunville’s body, there is no evidence that any significant force was necessary or used for the blade to penetrate that deep. To the contrary, the evidence of Dr. Ladham was that, once the blade penetrated the skin, very little force would have been necessary to penetrate the body. Finally, there is a poor foundation for the conclusion that the place where Mr. Gunville was stabbed was selected for its lethality.

While the point where the blade entered the body was very close to the heart, Dr. Ladham testified that most people would not have known that the heart was in that area. [ 49 ] Even assuming all inculpatory evidence tendered by the Crown was accepted by a jury, an inferential gap continues to exist on the issue of intent. In coming to this conclusion, I note that there is an evidentiary basis for a jury to conclude that Ms. Sasakamoose intended to stab Mr. Gunville. There is also an evidentiary basis for a jury to conclude that she was upset and that her actions were reckless.

However, the mental element for murder cannot be satisfied by an “attitude of recklessness”. See: R v Dempsey , 2002 BCCA 320 [ Dempsey ]. [ 50 ] Simply put, it is an error to assume that because Mr. Gunville died, that Ms. Sasakamoose intended that result. In my opinion, absent additional evidence, the tragic fact of Mr. Gunville’s death cannot bridge the inferential gap – that fact alone does not provide an evidentiary basis for the conclusion that Ms.

Sasakamoose intented to kill him or that she foresaw his death in the action she took. [ 51 ] As noted by the Court in Dempsey , murder requires a very specific intent and recklessness is not sufficient. The evidence must support a murderous intent which requires the subjective foresight of death. See: Martineau and Cooper . Having considered the totality of the evidence, I am not satisfied that a properly instructed jury could find any basis to conclude that Ms.

Sasakamoose held the requisite mens rea for second degree murder. [ 52 ] On the other hand, there is some evidence upon which a properly instructed jury could conclude that Ms. Sasakamoose intended to stab Mr. Gunville and that those actions were unlawful under the circumstances. Stabbing another human being with a paring

knife is objectively dangerous and bodily harm was a reasonably foreseeable consequence. While defense counsel argued that certain defenses might be available to Ms. Sasakamoose, such as intoxication, provocation or self-defense, in my opinion, these potential defenses are matters that must be left to the jury and are not relevant to the determination I must make in these proceedings. CONCLUSION [ 53 ] In accordance with s. 548 of the Criminal Code , it is my opinion that the Crown has not tendered sufficient evidence to put Ms.

Sasakamoose on trial for murder but there is sufficient evidence to put the accused on trial for the offence of manslaughter. As a result, Ms. Sasakamoose is discharged on the charge of murder but committed to stand trial on the charge of manslaughter relating to the death of Albert Gunville. Ms. Sasakamoose is required to appear before the Court of Queen’s Bench in the Judicial Centre of Prince Albert at the next sitting of that Court. [ 54 ] My condolences to Mr. Gunville’s family and friends, who obviously cared a great deal about him.

Dated this 21 st day of May, A.D. 2020, at the City of Prince Albert, in the Province of Saskatchewan. _______________________________ S.D. SCHIEFNER, J