R v Elee Geetah, 2014 NUCJ 23

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R v Elee Geetah, 2014 NUCJ 23 Date: 20140815 Court File: 03-11-11 #2 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Elee Geetah ________________________________________________________________________ Before: The Honourable Justice Neil Sharkey Counsel (Crown): B. McLaren & G. Turner Counsel (Accused): J. Morton Location Heard: Iqaluit, Nunavut Date Heard: August 15, 2014 Matters: s. 235(1) Criminal Code of Canada REASONS FOR JUDGMENT INDEX A. Overview Para [1] B. Observations on the Trial Testimony Para [94]

C. The Positions of the Parties Para [232] 1. Position of the Crown Para [232] 2. Position of the Defence Para [295] D. The Law Para [364] E. Analysis Para [378] F. Conclusion Para [490] A. Overview [ 1 ] This is a case involving two brothers, one that was killed, Jamesie Simigak, by his younger brother, Elee Geetah. [ 2 ] Elee is charged with second degree murder. [ 3 ] He shot and killed his older brother, Jamesie, on October 10, 2010. [ 4 ] Elee was 19 years old at the time. Jamesie was 23.

Elee had never been in any trouble with the law before this incident. [ 5 ] The killing took place in the family’s two story home, house 5215, in Cape Dorset. [ 6 ] The shooting occurred in the early afternoon shortly after lunch. Elee and Jamesie were in the house, along with their siblings, and their uncle.

The parents were not home at the time. [ 7 ] The fatal shot was a single blast from a 20 gauge pump action shotgun, with number 2 shot. [ 8 ] Jamesie was within very close range, approximately 10 to 14 feet away, when Elee fired that shot. [ 9 ] It is well known that when a shotgun is discharged, the pellets exit as one tight mass or cone; then, as its distance from the muzzle increases, the cone of shot expands and the pellets spread out. [ 10 ] Within the small confines of house 5215, the cone of shot did not have much room to expand before hitting Jamesie.

It was essentially still a tight wad of pellets, with a few outlier pellets, by the time it hit Jamesie. [ 11 ] This fatal cone of shot hit Jamesie on the top right side of his head, where the forehead meets the hairline. The entire wound was 11 by 5 centimeters. However the main wound, or central point of impact, was smaller, and only 6 centimeters in diameter, about the size of the bottom of a soda pop can. [ 12 ] Death was instantaneous.

[ 13 ] Everybody was sober. There is no alcohol or other intoxicant involved in this case. [ 14 ] In the year leading up to the shooting, Elee had been having suicidal thoughts. [ 15 ] In the hour or so before the shooting, Elee had been having a bad day. He was not getting along with people.

And he had done some minor damage to the house. [ 16 ] Eventually, Elee decided to just leave, to go hang out with his friends. [ 17 ] However, Jamesie did not want Elee to leave the house, likely because he wanted Elee to wait until their parents came home and account for the damage he had done. [ 18 ] As Elee was going out the door, he was surprised by Jamesie, who punched him, jumped on him, and pinned him to the floor. [ 19 ] A small scuffle ensued, but their uncle pulled them apart and put an end to the fight. [ 20 ] Jamesie’s ambush, however, set Elee off drastically into a mad rage. [ 21 ] Elee said nothing, but he did a lot in the space of only a few minutes. [ 22 ] There were a number of firearms kept in the laundry room, leaning against a wall, unsecured. [ 23 ] Once in the laundry room Elee picked up and loaded the 20 gauge pump action shotgun.

However, he put only 2 shells into the magazine. [ 24 ] After the scuffle with Elee, Jamesie had gone to the kitchen. He was preparing some cook-up, and boasting about how easily he had been able put Elee down. It does not appear, however, that Elee heard any of this bragging. [ 25 ] Elee was pre-occupied with something else. He walked out of the laundry room, and into of the living room, at the same time working the pump action, and moving a live shell into the firing chamber. [ 26 ] The sound of a round being chambered in a pump action shotgun is something that Jamesie was familiar with.

He stepped out of the kitchen to see what was going on, maybe at the same time still boasting about his fighting skills. [ 27 ] Once in the living room, Elee stopped and raised the shotgun to a firing position. The people in the house tell differing versions of how Elee was holding the shotgun just before he fired, but most likely he had the butt braced on his shoulder and an eye looking down the barrel. [ 28 ] Jamesie had barely (if at all) stepped out of the kitchen, when, almost simultaneously, Elee pulled the trigger and fired the fatal shot. [ 29 ] Jamesie went down immediately.

[ 30 ] Elee’s uncle and younger brother rushed to take the shotgun away from Elee; but he would not let go. In the struggle, the shotgun discharged accidentally, but did not hurt anyone. Eventually, the shotgun was pried away from Elee, who implored his uncle to kill him. [ 31 ] Everybody then fled the house, leaving Elee alone with his deceased brother Jamesie. [ 32 ] Elee then went upstairs to his parent’s bedroom and began firing shots out a window with various different high powered rifles. [ 33 ] He fired some shots at a couple of trucks, and in front of people who were simply walking along the street.

He also fired a shot which killed an RCMP’s dog, and another shot into the officer’s home. [ 34 ] Elee also spoke briefly, on the phone with his older sister and her husband and chatted with them online for a short time. He told them he was sorry, and wanted to know where his mother was. He also told them he was feeling suicidal.

They told him to give himself up to the police. [ 35 ] What followed over the course of a few hours was an all too typical stand-off, as police tried to persuade Elee to surrender himself into custody. [ 36 ] The stand-off came to an end without incident as RCMP crisis negotiator Staff Sergeant Jimmy Akavak, was able to persuade Elee to turn himself in. Staff Sergeant Akavak had a number of conversations with Elee prior to his decision to give up peacefully. [ 37 ] Elee told Staff Sergeant Akavak that Jamesie had made him very mad and he admitted to shooting Jamesie.

He also repeatedly told Staff Sergeant Akavak that the shooting was a spur of the moment thing and that it was “not on purpose.” [ 38 ] The day after the shooting, Elee was interviewed by police in Cape Dorset. He told them that even though Jamesie had gotten him mad, nonetheless, he was not trying to shoot Jamesie. He said Jamesie was running towards him when he pulled the trigger, and that he tried to move the barrel to miss his brother, but shot him by accident on the top part of the head.

He told police if he had actually wanted to shoot Jamesie that he would have done so with a straight on shot and hit him in the face or neck. Elee admitted to firing shots out of the upstairs bedroom window, and he admitted that this was a dangerous thing to do. But he maintained that he was careful to actually avoid hitting anyone. He would not however, admit to firing a shot at the RCMP residence or shooting the RCMP member’s dog. He said the reason he fired all these shots was to let people know that “it’s dangerous.” [ 39 ] Elee testified in the trial.

He said the reason he fired the shotgun, at all, was to scare everybody out of the house, and then kill himself. He said he did not fire from the living room, like he had told the police earlier, but from just outside the laundry room door. He said he wanted to fire at the front door at the other end of the house. He testified that as he pulled the trigger, Jamesie simultaneously came out of the kitchen and was hit by accident as he stepped into the cone of shot.

Elee testified that he did not see his brother before he pulled the trigger and so there was simply “no time” to move the barrel in order to avoid hitting Jamesie. Elee testified that the reason he fired the shots out the bedroom window, was to create a dangerous situation, in the hope that the police would feel they needed to kill him. [ 40 ] There was never any question that Elee intended to pull the trigger to fire the shotgun.

He did. [ 41 ] At the conclusion of the trial testimony, counsel for each side made final submission. [ 42 ] In a nutshell, the Crown’s position was that Jamesie’s death was not a tragic accident, but a deliberate act on Elee’s part; that Elee was so mad at Jamesie that he decided to shoot him; that he chose the right firearm to do so in the small confines of a house; that he positioned himself in the living room with a view of the kitchen, where he knew Jamesie was; that he had a momentary, but clear, view of Jamesie before he pulled the trigger; and that when he pulled the trigger he either intended to kill Jamesie, or cause the kind of bodily

harm that he knew was likely to cause death. In either case, the Crown said, Elee would be guilty of second degree murder. [ 43 ] The Crown also suggested that Elee’s behavior after the shooting was inconsistent with an accidental shooting and that his testimony about firing the shotgun simply to scare people out of the house so he could then kill himself was simply not credible. [ 44 ] Elee’s lawyer argued, however, that Elee should be found not guilty.

He suggested that there was certainly a reasonable doubt, that when Elee pulled the trigger, he intended to shoot Jamesie. [ 45 ] Elee’s lawyer also argued that the witnesses gave somewhat differing accounts of what happened and that a careful examination of their evidence would reveal it was not clear that Elee was aiming at Jamesie when he pulled the trigger. [ 46 ] Defence counsel also disagreed with the Crown’s view of Elee’s behavior after the shooting, and suggested that this so-called post- offence conduct was in keeping with an accidental shooting. [ 47 ] Finally, Elee’s lawyer suggested that if the Court were to conclude that his client intended to shoot Jamesie, then I should find Elee guilty only of manslaughter, on the basis that Jamesie had provoked Elee to do what he did. [ 48 ] The legal defence of “provocation” does operate to reduce a charge of murder to manslaughter, but there are a number of strict evidential pre-conditions which must be met before it is even available to an accused person. [ 49 ] This case turned on a more precise question: namely, at the moment Elee pulled the trigger, or in the ‘millisecond’ before he pulled the trigger, did Elee intend to hit Jamesie with the shot, or not? [ 50 ] He certainly had a motive to do so. [ 51 ] Elee was emphatic that he did not intend to shoot Jamesie.

Of course, simply saying that it is so does not make it so. [ 52 ] However, I found Elee’s actions, in the immediate aftermath of the shooting, to be consistent with his claim that he did not mean to shoot his brother. [ 53 ] In addition, the witnesses to the shooting told differing versions of what happened in the moment before Elee pulled the trigger. About where Elee was pointing (or aiming) the shotgun; what he could see from where he stood as he fired the shot; and, importantly, what Jamesie was doing in the moment before he was shot. [ 54 ] These differing versions from the witnesses are understandable.

It is rare that people who see such a traumatic event will have matching recollections. [ 55 ] At the same time, while the differences in testimony from the witnesses were small – I found them to be significant in my assessment of the reliability of their testimony [ 56 ] I was not persuaded that Elee intended to shoot his brother when he pulled the trigger at the standard required in a criminal case.

[ 57 ] Accordingly, I found him not guilty of murder. [ 58 ] I did not consider the legal defence of provocation. This defence only comes into play after a finding that a killing was deliberate. [ 59 ] However, since the killing in this case was unlawful (and the act of shooting itself, negligent), I found Elee Geetah guilty of manslaughter. B.

House 5215 [ 60 ] I am familiar with this house: During the trial we convened Court, briefly, inside the house, and took a ‘view.’ There were no material structural differences, or other material changes, in the residence between the time of the incident, and the time of the trial when we took the view. [ 61 ] In addition, the police had conducted an extensive examination of the residence, so that crime scene photos and video were available to the Court. [ 62 ] House 5215 is a two story residence. [ 63 ] The main floor consists of a large combination living and dining room, the kitchen, and the laundry room. [ 64 ] The kitchen and the laundry room are on the same side of the house – but they are at opposite end of the house, and at opposite ends of a common wall, the living room wall. [ 65 ] The kitchen and the laundry room are also about 20 feet apart, at opposite ends of this common wall. [ 66 ] The front door of the house is close to kitchen entrance – it is also at right angles to the kitchen entrance. [ 67 ] The front door is then – since it is close to the kitchen – at the opposite end of the house than the laundry room. [ 68 ] The kitchen entrance is not visible to a person in the laundry room; nor is the laundry room entrance visible to a person in the kitchen. [ 69 ] And, if you take just one step out of the laundry room (and turn left), while you still cannot see the kitchen entrance, you can clearly see the front door. [ 70 ] For the sake of convenience, I have referenced this long space – between the laundry room entrance (or, more precisely, one step outside the entrance), and the front door – as the “laundry room alley.” [ 71 ] Again, if you stand at the laundry room end of the alley, you can see the front door at the other end of the alley, a little over 20 feet away. [ 72 ] So, if, however, a person stepped out of the kitchen, while you were looking down the alley from the from the laundry room end, then that person would be visible to you the moment they stepped out of the kitchen; the person would be standing between you and the front door, and would block your view (somewhat) of the door.

[ 73 ] This is important, of course, because Elee testified that he took such a step outside the laundry room, and fired the shot down the alley, and towards the front door; he also testified that it was at the very moment he fired, that Jamesie stepped out of the kitchen and got hit. [ 74 ] About one-half way down the laundry room alley, there is a fairly large couch; the back of the couch is against the laundry room alley wall, so the couch sits in rectangular fashion in the middle of the alley; this couch is facing out into the main area of the living room, directly at a large screen TV on the opposite side of the room. [ 75 ] The couch is significant because this is where the witness, Leetia (along with her little sister) were sitting, when Elee fired the fatal shot. [ 76 ] So, if Elee fired the fatal shot down the laundry room alley, then he would have had to fire over top of Leetia and her little sister, as they were seated on the couch. [ 77 ] There are two (2) structural posts in the living room: One is located proximate to the laundry room – about 8 feet away from the laundry room entrance; the other post is located proximate to the kitchen entrance – about 8 feet from the kitchen entrance. [ 78 ] This second post is used by the occupants of the house for hanging coats and jackets.

Inevitably – given the climate in Nunavut – there are coats and/or jackets hanging on this post. [ 79 ] It is called the “coat rack post,” or “coat rack pole,” or sometimes just the “coat rack.” [ 80 ] At one end of the living room is a dining room table, and chairs. It is close to the front door, and from this dining room table there is a direct view into the kitchen. [ 81 ] At the other end of the living room is a love seat.

And from this love seat there is no view into the kitchen; there is, however, an obstructed view of the kitchen entrance – because the coat rack post is situated between this love seat, and the entrance to the kitchen. [ 82 ] The love seat is significant because this is where the witness Oqittu was (or at least says he was) sitting, when Elee fired the fatal shot. [ 83 ] From most parts of the living room, a person can see either into the kitchen, or at least the kitchen entrance. [ 84 ] Obviously, if a person is standing behind the coat rack pole, then their view of the kitchen entrance might be obstructed (or not) depending on their exact position. [ 85 ] The bathroom is upstairs, on the second floor, along with various bedrooms, including the parents’ bedroom (which is the room from which Elee fired shots out the window). [ 86 ] There are firearms stored in the parents’ bedroom, but as I recall the evidence, these firearms (unlike the rifles in the laundry room) were kept secure. [ 87 ] All three eye-witnesses to the shooting testified that Elee was in the living room, when he fired the fatal shot.

[ 88 ] Understandably, they do not all place him in the exact same spot. [ 89 ] Mr.

McLaren, for the Crown, had illustrated, with reference the schematic diagrams, an area in the living room within which these three witnesses place Elee at the critical time. [ 90 ] For the sake of convenience we (both counsel and myself) have referenced this area, first as “McLaren’s square,” and then eventually, more precisely, as “the living room oval.” [ 91 ] This is significant because the three eye-witnesses place Elee at different spots within this living room oval, when he fired the shot and also because Elee told the police, when they interviewed the day after the shooting, that he fired the shot from the living room, about 10 feet away from Jamesie. [ 92 ] A person standing within the living room oval would have a view of the kitchen entrance; this view might differ, however, and might also be partially obstructed, depending upon where the person was standing within the oval. [ 93 ] This is significant because Elee was shot at the kitchen entrance, or just outside the kitchen entrance.

B. Observations on the Trial Testimony [ 94 ] Jamesie Simigak was shot and killed in House 5215. This is the Simigak-Geetah household. [ 95 ] David Simigak and Saila Geetah are the parents.

Their children are: the deceased, Jamesie (who was 23 years old when he was killed); his younger brother, the accused, Elee (19 years old on the day of the incident, and 22 by the time of his trial); Leetia (Jamesie and Elee’s younger sister, who was 16 years old on the day of the incident, and 19 by the time she testified at the trial); Alex (Jamesie and Elee’s younger brother, who was 15 years old on the day of the incident, and 18 by the time he testified at the trial); and two infants, little 5 year old Nala (Jamesie and Elee’s youngest sister), and 2 year old Noah (Jamesie and Elee’s baby brother). [ 96 ] Elee and Jamesie, despite their different last names, are natural brothers; Jamesie had been adopted out to their father’s mother (to David Simigak’s mother); but he moved back to live his natural parents, David and Saila Geetah, and his siblings, Elee, Leetia, Alex, Nala, and Noah. [ 97 ] The two infants (little Nala, and baby Noah) were in the house at the time of the incident; Noah was asleep, upstairs, and stayed there until Elee took him to a next door neighbor’s after the shooting; little Nala was whisked out of the house after the shooting by her elder sister, Leetia. [ 98 ] The other person present during the incident was Oqittu Simigak (Jamesie and Elee’s uncle, who was 27 at the time of the incident, and 30 by the time he testified at the trial). [ 99 ] Elee’s life had changed, significantly, in the year or so before this incident.

He had lost his closest friend and confidant, Omagaitok, to suicide. His friend died when Elee was down south. Elee blamed himself, for not being there, when his friend committed suicide. [ 100 ] Elee suffered much depression in the aftermath of his friend’s death and harbored thoughts of killing himself as well. Most significantly, it was well known within the family that after his friend’s death, Elee was prone to get angry and lose his temper easily, at the slightest provocation.

[ 101 ] The shooting took place on Sunday, October 10, 2010, in the early afternoon, shortly after lunch. [ 102 ] In the morning, the parents (David and Saila), together with Jamesie, Alex, and uncle Oqittu, were down at the shore, attending to a boat; the plan was that there would be a hunting trip the next day, and so the family canoe needed to be readied, and properly anchored. [ 103 ] Elee woke up around noon, when everybody, except Leetia and the two infants in the house, were still down at the beach.

Elee’s day got off to a bad start almost immediately; he needed to use the one bathroom in the house, which was occupied by his sister Leetia; he lost patience with Leetia, kicked a hole in the bathroom door, and pounded his fist at the wall making another hole. [ 104 ] Shortly afterwards, Elee’s 22 year old sister, Mappaluk Geetah, and her 36 year old common law partner, Pingwartuk Pingwartuk (Ping) came to the house for a visit; they brought their son, little 7 year old Joanassie with them.

But they only stayed briefly, likely because the parents (David and Saila) were still down at the shore. [ 105 ] Elee was quite fond of his little nephew, Joanassie, and asked Mappaluk, as they were leaving, if he could take care of Joanassie for a little while; Mappaluk declined this request, because she felt there were not enough adults in the house to care responsible for Joanassie, if she left him there. [ 106 ] Shortly after Mappaluk, Ping, and little Joanassie left the house, some of the people who had been working on the boat, came in. [ 107 ] After their chores at the beach were finished, David and Saila just headed into town; Oqittu, Jamesie and Alex, however, headed back to house 5215; Oqittu gave Jamesie a ride on his 4 wheeler, and Alex soon followed, on foot. [ 108 ] Before things erupted in the house, people were going about their normal business: Jamesie was in the kitchen to preparing something to eat; Uncle Oqittu was seated at the dining room table, along with Jamesie and Elee’s younger brother, Alex; at one point Oqittu may have gone to sit on the love seat at the other end of the room; Leetia was sitting on the large couch against the wall, in the middle of the laundry room alley, and watching TV with little 5 year old Nala beside her.

Baby Noah was upstairs, sleeping. [ 109 ] A small argument took place over Jamesie’s iPod Touch; Elee wanted to borrow it, but Jamesie was not prepared to let him have it. [ 110 ] Eventually, Elee just let people know he was leaving to go hang out with his friends. As he approached the front door, however, he was attacked and brought to the ground by Jamesie.

At one point Jamesie had pulled Elee’s T-short over his head, preventing him from seeing anything while he was being beaten up. [ 111 ] Oqittu was able to pull Jamesie off Elee and break up the fight. [ 112 ] Elee became very angry. [ 113 ] At first, he just paced around the living room. Then he went upstairs briefly, then returned downstairs; and found some shot gun ammo, in the living room, near the kitchen.

He then went immediately to the laundry room. [ 114 ] From the laundry room, he returned to the living room with the loaded shotgun, and fired the fatal shot. [ 115 ] After the shooting, Oqittu and Alex wrestled the shotgun from Elee, and Elee begged Oqittu to kill him.

[ 116 ] Oqittu held Elee down for a short time, while Alex ran next door to call for help. [ 117 ] Leetia and Nala sought refuge in the laundry room and then got out of the house with Alex’s help. [ 118 ] Eventually, Oqittu fled the house as well, leaving Elee alone with only his brother’s body downstairs and baby Noah upstairs. Elee took Noah, dropped him off next door, and then returned to House 5215. [ 119 ] The three eye-witnesses, Oqittu, Alex, and Leetia, offered differing testimony about what they saw.

For example, as to where Elee was in the house when he fired the fatal shot; how Elee was holding and/or pointing the shotgun when he fire, and what, if anything, Jamesie was doing when the shot was fired. [ 120 ] Again, from various points in the living room – within the living room oval – one can see either the kitchen entrance, or even into the kitchen itself; there is a clear view from the dining room table directly into the kitchen; there is a less clear view of the kitchen entrance if one is standing behind the coat rack post pole; and from the love seat there is an obstructed view of the kitchen entrance. [ 121 ] Oqittu testified that he saw the shooting from where he was sitting, on the love seat. [ 122 ] Oqittu said after he broke up the fight, that he thought nothing else was going to happen.

He said that Jamesie went back to the kitchen, and that Leetia and Nala were sitting on the big couch watching TV. [ 123 ] Oqittu testified that he then saw Elee walking out of the laundry room, pump the shotgun, and walk to the spot where he fired the fatal shot. [ 124 ] Oqittu said Elee, “walked right out of the laundry room through the living room right to near the kitchen. That’s where he shot Jamesie.” (Oqittu Testimony: Trial Transcript: page 17, lines 3-6) [ 125 ] Oqittu marked a schematic diagram to mark the spot where Elee was when he fired the shot.

It is a spot beside the coat rack pole, close to the kitchen entrance, close to the kitchen entrance, and at the bottom (or kitchen end) end of the living room oval. [ 126 ] Oqittu estimated that Elee was about 7 to 8 feet from Jamesie when the shot was fire, and that the distance between the end of the muzzle and Jamesie, was roughly an arm’s length. [ 127 ] Oqittu demonstrated how Elee held the shotgun before he pulled the trigger. With the stock against his right shoulder, the barrel held horizontal to the ground, and pointed at Jamesie. [ 128 ] Oqittu said, “I remember the look on his (Jamesie’

s) face after. Like he heard the pump and the look on his face was he looked surprised. Unfortunately that was his last moment.” (Trial Transcript: page 21, lines 11-14) [ 129 ] Oqittu was clear in his testimony that Jamesie was not moving, or running towards Elee, when the fatal shot was fired: That Jamesie was simply standing there, facing Elee, when Elee pulled the trigger. [ 130 ] Oqittu said that when the shot was fired, he jumped up from the love seat, and ran towards Elee in an effort to wrestle the shotgun

away from him.

Oqittu said Elee resisted, to the point where Oqittu said he had to call Alex for help. [ 131 ] Eventually, Oqittu and Alex wrestled the shotgun away from Jamesie, but in the process the gun went off and fired a second round, which luckily did not hit anyone. [ 132 ] Oqittu testified that, “Right after he shot Jamesie, he (Elee) was telling me to kill him.” (Trial Transcript page 31, lines 1-2) [ 133 ] Oqittu was also clear that, in the immediate aftermath of the shooting, Elee did not say anything to the effect that he had shot Jamesie by mistake or accident. [ 134 ] Oqittu’s vantage point on the love seat was some 10 feet (or more) behind Elee when the shot was fired. [ 135 ] Accordingly, Oqittu was questioned by defence counsel, Mr.

Morton about his ability to see what he said he saw. [ 136 ] Mr. Morton suggested to Oqittu that since his view of Elee would have been from the back, he could not say precisely how Elee was aiming the shotgun; and further, that since both Elee and the coat rack pole were between him and the kitchen entrance, his view of Jamesie would have been obstructed or blocked. [ 137 ] In this regard, the following exchange between Mr. Morton and Oqittu is instructive: Q (Mr.

Morton) Now, I am going to suggest to you, Sir, that sitting on the love seat between where Jamesie was and you, there was coats hanging, is that correct? A That’s correct. Q So you could no really see Jamesie except through the coats, correct? A Not through the coats but I could see around the coats. Q Okay, but he was partly blocked by the coats; is that correct?

A That’s correct (Trial Transcript page 50, lines 12 – 23) After counsel finished this line of questioning, I queried Oqittu about this myself , as follows: Q (The Court) Oqittu, when Elee was pointing that shotgun, what was it pointed at : A It was pointed to his head, to Jamesie’s head. Q And you are saying you had a clear view of that A Yes. Q Even though you were looking at him from the back, you had a clear view? A That’s correct. Q The coats were not in your way?

A Not really. (Trial Transcript page 62, line 12 – p. 63, line 4) [ 138 ] Elee and Jamesie’s young brother, Alex, also gave evidence about where everybody in the house was, when the fatal shot was fired. [ 139 ] Alex was clear in his testimony that Oqittu was not seated, as Oqittu had testified, on the love seat when Jamesie fired the shot.

[ 140 ] Alex said that Oqittu was with him, seated at the dining room table, near the kitchen (and at the opposite end of the house from the love seat). [ 141 ] And Alex said that Leetia was on the large couch, with little Nala, when the shot was fired. [ 142 ] Alex said that Jamesie went to the kitchen after the fight between he and Elee ended. He said Elee then went upstairs (briefly), returned downstairs, and fetched some ammunition from a backpack near the refrigerator. Alex said that Elee then went, right away, to the laundry room.

Alex was clear that he then saw Elee, in the laundry room, pick up a gun, and load it. [ 143 ] Alex said that Elee then walked from the laundry room into the living room and fired the fatal shot at Jamesie. [ 144 ] Alex marked a schematic diagram (P-2(a)) to show the locations of both Elee and Jamesie when the shot was fired. [ 145 ] Alex placed Elee in the living room oval when he fired the shot, at a spot directly in front of the large couch where Leetia and Nala were seated. This is a spot fairly close to where Leetia placed Elee during her testimony.

However, it is a spot significantly farther away from the kitchen than from where Oqittu, during his testimony, had placed Elee when he fired the shot. [ 146 ] Oqittu placed Jamesie “just outside” the kitchen entrance when the shot was fired. [ 147 ] Alex was clear that from his vantage point, seated at the dining room table, he had a good view of Elee, as well as Jamesie, when the fatal shot was fired. [ 148 ] Alex demonstrated how Elee was holding the shotgun when he fired the shot.

Unlike Oqittu, who showed how Elee had the gun aimed from the shoulder, Alex said that Elee was holding the shotgun with the butt at waist level, and the barrel slightly elevated, at about a 20 degree angle. (Trial Transcript page 70, lines 9-12) [ 149 ] Where Alex’s testimony became contentious was with respect to whether

(1) Elee was aiming or pointing the shotgun at Jamesie before he fired the shot, and (2) whether Jamesie was moving or running, in the moment before the shot was fired. [ 150 ] Alex was clear, during cross-examination and after his demonstration, that the shotgun was pointed at Jamesie’s head before Elee fired the shot. [ 151 ] However, in this regard, the following exchanges between Mr. Morton and Alex, as well as Ms.

Turner and Alex, are instructive. [ 152 ] I pause to note that the witness Alex (like his sister, Leetia) reference Jamesie by his Inuktitut name, “Eetuq.” And I have entered “Jamesie” in parenthesis, below. Q (Mr. Morton)) Okay, now Elee came into the room with the gun and he quickly raised the gun and pulled the trigger; is that correct? A After he pumped it and then Eetuq (Jamesie) was about to run away and that’s when he shot him. Oh, I am sorry, correction, Eetuq (Jamesie) was about to run and then that’s when he shot him. Q All right. Now, did Elee aim the gun?

A He was kind of holding it in the angle where it was pointing up at the head. Q What was he pointing the gun at? A Eetuq (Jamesie’

s) head. Q Now, was Eetuq (Jamesie) standing still or was Eetuq (Jamesie) running when he was shot or moving when he was shot?

A He was about to run and he took not that many steps and he got shot. Q But Elee did not aim the gun? A It was an upward position towards the head. The Court: Counsel, I think this question “aim” is an interpreted one. Mr. Morton: Yes. The Court: And the answer speaks for itself, in an upward position towards the head.

He said earlier it was aimed, kind of holding an angle up toward the head. (Trial Transcript page 87, line 8 – page 88, line 6) [ 153 ] The Crown, in re-examination, sought further clarification from Alex about whether Elee was aiming at Jamesie’s head before he fired the shot, and whether Jamesie was moving when he was shot: Q (Mr. Turner) Okay, just one question Alex. You just told Mr. Morton that Elee was holding the gun and it was pointing towards Eetuq’s (Jamesie’

s) head? A Yes. It was in an upward angle and he shot him as he was trying to run. Q Okay, So was Eetuq (Jamesie) moving already when Elee shot him? A It was just at the start of running when he got shot. Q Okay, So before Eetuq (Jamesie) moved Elee was already pointing the gun? A No. He heard the pump action of the gun and he was trying to go see and then he saw and then he was trying to run after seeing. Q Okay, so I am just trying to picture when he was trying to run though, Elee was already pointing the gun towards Eetuq’s (Jamesie’

s) head? A No. He was walking as he was holding the rifle like that. And then when he saw the gun – sorry – when he saw the gun, he started running. Q Okay. Thank you Alex. (Trial Transcript: page 92, lines 1-21) [ 154 ] Alex also testified that he knew about the close relationship between Elee and his deceased friend, Omagaitok. Alex expressed the view that after Omagaitok died, Elee was prone to become frustrated and angry more easily than before Omagaitok’s death. [ 155 ] Alex testified that Elee looked very angry just before he fired the shot: Alex said “..His (Elee’

s) face looked so angry that I couldn’t recognize him.” (Trial Transcript page 90, lines 18-19) [ 156 ] Alex testified that after the shot was fired, he and Oqittu wrestled the shotgun from Elee and that in the process of doing so, it discharged in the direction of the front door. [ 157 ] Alex said that he then ran next door to make a phone call, and summon the police for help; but, the next door neighbour had no phone. [ 158 ] Alex said he then ran back to the house to retrieve Leetia and Nala (who had sought refuge in the laundry room). [ 159 ] Alex said that after he got his sisters out of the house, he decided to go back to the house despite the fact Elee was still there to make the phone call. [ 160 ] He said that as he entered the house, he met up with Elee. [ 161 ] Alex testified that Elee asked him if the police were on their way. [ 162 ] He also said that Elee did not look normal: “His face didn’t look normal and his voice didn’t sound normal either.” (Trial Transcript: page 83, lines 6-7)

[ 163 ] Alex then left the house. [ 164 ] Leetia was clear in her testimony as to where Elee was standing when he fired the fatal shot and she was clear where the others in the house were at the time. She was less clear about how Elee was holding the shotgun when he fired; whether he was aiming at Jamesie or whether Elee even had a clear view of Jamesie when he fired the shot. [ 165 ] Like her brother Alex, Leetia was aware that Omagaitok’s suicide had impacted Elee. [ 166 ] Leetia gave some detail about the fight between Elee and Jamesie.

She explained how Jamesie did not want Elee to leave the house until their father David got home and saw the damage to the bathroom door and wall. She explained how Jamesie grabbed Elee as he was trying to leave and the two them went to the floor. She also described how Oqittu got involved to break up the fight. [ 167 ] Leetia testified that Jamesie “looked very different” after the fight. She said immediately after Oqittu broke up the fight that Jamesie went to the kitchen and Elee went to the laundry room.

She said, “…And Elee seemed still pissed off so he went to the laundry room.” (Trial Transcript page 39, lines 25-26) [ 168 ] She also stated that Jamesie was bragging that “he still can’t be beaten by his little brother.” She was not sure, however, if Elee heard any of this bragging, but she guessed that “he probably could.” (Leetia Geetah Testimony: Trial Transcript page 40, line 24) Leetia made reference to a schematic diagram (Ex-P-1(a)) to show where people were when the fatal shot was fired. [ 169 ] She placed herself and little Nala on the large couch (in the middle of the laundry room alley).

She placed Oqittu and Alex at the dining room table. [ 170 ] Leetia was confident that Oqittu was not seated on the love seat when the shot was fired, but rather that Alex and Oqittu were seated at the dining room table and that Jamesie was shot as he emerged from the kitchen while bragging to them about being able to beat Elee in a fight. [ 171 ] Leetia placed Elee in the living room when he fired the shot, but at the far end of the living room from the kitchen; at the opposite end of the living room from where Oqittu had placed Elee. [ 172 ] Essentially, Oqittu had placed Elee very close to the kitchen when the shot was fired (at a point in the living room oval near to kitchen).

Alex had placed Elee further back in the living room, opposite the couch that Leetia and Nala were occupying (at a point in the living room oval mid-way to the kitchen). [ 173 ] Leetia had placed Elee even further away from the kitchen when the shot was fired; roughly beside the ‘other’ of the two support posts, and roughly as well between her couch and the love seat (at a point in the living room oval far from the kitchen). [ 174 ] Leetia did not hear Elee pump the shotgun; she said that as Elee emerged from the laundry room, he had something by his side which she saw was a ‘rifle’ when he stopped, at the far support post, and lifted it to fire. [ 175 ] Leetia did 3 separate demonstrations of how Elee was holding the shotgun and which way it was pointed when he fired.

During her in-chief testimony Leetia held the ‘shotgun’ with the stock braced against her shoulder and the barrel pointing in a roughly horizontal position pointing in the general direction of Jamesie, and the front door.

[ 176 ] During cross-examination (as well as when questioned by the Court), Leetia also lifted the ‘shotgun’ to a horizontal position, but closer to her waist, not to the same ‘shoulder height’ and ‘aiming’ position she had demonstrated earlier.

And finally, in re-examination, Leetia holds the ‘shotgun’ at horizontal position, at a height roughly ‘between’ the two previous demonstrations, slightly above waist level. (Trial Transcript page 27, lines 7-10; page 47 lines 5-10; page 53, lines, 17-21) [ 177 ] Leetia was also clear that the coats on the coat rack post (as depicted in the photographs) would have obstructed Elee’s view of the kitchen when he fired the shot. (Trial Transcript: page 44, lines 3-7 and Leetia’s reference to Ex.

P-3, photo 2050) [ 178 ] Leetia was examined and cross-examined extensively as both the Crown and defence counsel tried to elicit from her whether Elee was pointing (or aiming) the shotgun at Jamesie when he fired, and whether Elee had a clear view of Jamesie when he fired the fatal shot. [ 179 ] The end result of this questioning was that Leetia was not sure whether Elee was pointing or aiming the shotgun at Jamesie when the fatal shot was fired. [ 180 ] Leetia was also clear that Elee’s view of Jamesie (when he fired the fatal shot) may have been obstructed by the coat rack pole. [ 181 ] The following excerpts from Leetia’s testimony illustrate these conclusions about her evidence: [ 182 ] First, during cross-examination, the following exchange(

s) took place between Mr. Morton, and Leetia: Q (Mr. Morton) Okay. From where you were sitting, could you see whether he pointed the gun? A Not really. He just got it up and pretty much shot it. Q Did he point the gun? A Well, he didn’t really look like he was like pointing it. He just got it up and just got it like and like pulled the trigger. (Leetia’s Trial Transcript: page 44, line 25 – page 46, line 5) [ 183 ] And later: Q (Mr. Morton) Now, from your perspective, did it look like Elee was aiming the gun at Eetuq? A Probably not. Q Probably not? And in fact he just picked it up and fired? A Yeah.

Q Now, can you tell us what Elee was pointing the gun at when he fired the gun? A When he fired the gun it looked like if he didn’t hit anybody, it looked like it was going to hit the door. (Trial Transcript: page 47 lines 12-26; page 48, lines 12-26 & Ex. P-1 (a), Leetia references the front door of the house) [ 184 ] And shortly afterwards, following on this: Q Thank you, from your perspective, he was pointing the gun at where the door was? A Well, yeah. Q And as he was lifting the gun pointing at it, it was at that exact moment that Eetuq (Jamesie) came out? A Yeah.

Q And Eetuq (Jamesie) came out from behind where the coats were?

A Yeah. Q Could Elee have seen Jamesie coming out of the kitchen? A Well, I am not really sure probably or I am not really sure. Q Okay, if you don’t know, you don’t know Q Did it look to you like Elee was trying to hit Jamesie? A Well, the way I know them. Like as I grew up the way I know them there are times they are trying to scare each other but I wouldn’t – but that was the most unexpected thing to happen with the rifle. Q So it didn’t look to you like Elee was trying to hit Etuq (Jamesie)? A Yeah. I don’t see it that way but it happened. Q After Jamesie got hit, did Elee look surprised?

A Well, I didn’t look at Elee. I just freaked out and tried to go to the laundry room. But I went back to get my little sister. (Trial Transcript: page 49, lines 3-page 50, line 4) [ 185 ] During re-examination, Ms. Turner and Leetia engaged in the following exchange: Q (Ms. Turner) And you marked (on diagram P-1 (a)) where the door was? A Yeah. Q Where was Etuq (Jamesie) standing in relation to that door? A Kind of like between there. Like just walked out of the kitchen and just stopped and looked at my brother and uncle and just shot (sic), like telling them. Q Okay, you say he stopped? A Yeah.

He just looked straight to them. He never looked anywhere else, just bagging about himself. Q And when you say “them” can you say who that is again? A Alex and Oqittu. Q Alex and Oqittu? A Yeah. Q About how long was he standing there stopped, looking at Alex and Oqittu? A Not really long. Q No? And then what happened after he was stopped? A Like he stopped and talked a bit. Then after that Elee pulled the trigger. Q So Elee pulled the trigger after Eetuq was stopped? A Well, he didn’t – like you can see in the pictures that there is stuff in the way.

But I am not really sure if he noticed he was standing right there. (Leetia’s Trial Transcript: page 51, line 1-page 52, line 2) [ 186 ] And later: Q (Ms. Turner) …. So you said to Mr. Morton that it didn’t look like Elee was pointing? A Yeah, He didn’t really look like it but he got it up.

Like it seemed it was pointing but he didn’t like look like he really tried to. (Leetia’s Trial Transcript page 53, line 23-page 54, line 1) [ 187 ] And finally, I sought further clarification from the witness, Leetia: The Court: Did he point that shotgun towards the fridge and door before Jamesie walked out of the kitchen or did he point that shotgun at Jamesie after Jamesie walked out? The Witness: Well, mainly, I don’t really see that because there was like a lot of stuff in the way.

It was probably he – like he got it up and just shot it so – but maybe at that point he had a small glimpse of him standing there. The Court: Of Jamesie? The Witness: Yeah.

The Court: When Elee came out of the laundry room into the living room – The Witness: Yeah. The Court: So it all happened pretty fast The Witness: Yeah The Court: When Elee came out of the laundry room – The Witness: Yeah. The Court: ---where was Jamesie? The Witness: He was standing right there like to the kitchen and walked out and just brag a bit. And before we know it he was on his knees. The Court: So, he (Jamesie) was just coming out of the kitchen when Elee was coming into the living room? The Witness: Yeah. Well, he mainly just stood there like maybe a couple of seconds. Like it happened really fast.

The Court: Was Jamesie standing in front of Elee when Elee picked up – The Witness: No, he was facing the other side. Like – like when – like Elee is across this way but he was pointing, like he was facing that way. (Leetia’s Trial Transcript: page 55, line 9 -page 56, line 16) [ 188 ] After the shooting, and when he was alone in the house, Elee spoke on the phone and chatted via computer with his elder sister Mappaluk and her common law partner, Ping. [ 189 ] At no time during these conversations did he offer up or say to Mappaluk and Ping that what happened was an accident.

Nor did he give any details about the shooting (other than he did it). Both Mappaluk and Ping testified that these were brief conversations, and that Ping was interested getting into contact with his mother, so he could tell her, and the whole family, that he is sorry. [ 190 ] When they asked Elee if anyone was with him at the house, he replied, “Just me and Eetuq’s (Jamesie’

s) body.” (Mappaluk Geetah & Pingwartuk Pingwartuk Trial Transcript: page 13, line 15) [ 191 ] Mappaluk and Ping also said that Elee was expressing thoughts of suicide and that they pleaded with him to simply turn himself into the police, which thanks to the efforts of Staff Sergeant Jimmy Akavak, he eventually did. [ 192 ] Staff Sergeant Jimmy Akavak had numerous conversations with Elee during the hour or so that the two of them were in contact with each other. [ 193 ] The Staff Sergeant was also clear in his understanding of what Elee said happened and why it happened.

Elee told him that Jamesie had set him off in a rage by putting him down to the floor; that this anger was beyond anything he had previously experienced; and that he became so mad he wanted to commit suicide and join his friend, Omagaitok, who had committed suicide, a year or so earlier. [ 194 ] The following excerpt from Staff Sergeant Akavak’s testimony is instructive: Q (Mr. Morton) When you were speaking to Elee did you have the sense that he was still in a rage or did you have the sense that he was more confused and upset or could you tell anything from the way he was talking ?

A He sounded upset as to what happened, very upset actually. He sounded to be remorseful. He sounded to be in shock. And that it happened not on purpose. He didn’t say it was an accident but it was not on purpose, as to what happened. It happened very quick and he sounded to be sober, at the time, yes.” (Trial Transcript page 27, lines 13-24) [ 195 ] Staff Sergeant Akavak clarified his understanding of what Elee meant by saying the shooting was “not on purpose.” It was the Staff Sergeant’s view that Elee was telling him that this was not something premeditated, but rather something done quickly in a rage.

[ 196 ] In this regard, the following excerpt from Staff Sergeant’s testimony is also instructive: The Court: I am going to clarify with Mr. Akavak. Mr. Akavak, the question from Mr. Morton was: When speaking with Elee, how did you feel he sounded ? Was he still in a rage ? Was he confused or upset ? And I think your answer was: He was very upset. He sounded remorseful and in shock. He sounded like it happened not on purpose. Not that it was an accident but he sounded like it was not on purpose. That was the tone of his voice ? The Witness: That’s correct.

That he did what he did in a very spur-of-the-moment, very quick, basically in a way that he did not mean to do it. The Court: That’s how you interpreted it ? The Witness: Yes. The Court: And you were speaking in both English and Inuktitut ? The Witness: M-hmm yes. The Court: And that’s the implication you took from what he said? He never said expressly: “It was an accident.” But you interpreted his sound and voice – the sound of his voice and his words.

When you say he was very upset, remorseful and in shock, you are telling me that it sounded to you like he was telling it happened not on purpose, even though he did not say it was an accident; is that correct ? The Witness: Yes, exactly. The Court: Is that fair, Mr. Morton ? Mr. Morton: Yes. The Court: Mr. McLaren, I think does that characterize what he said. Mr. McLaren: And so that I have my note correct, what I got down is, he didn’t say it was an accident, but it didn’t sound like it happened on purpose either. I am now paraphrasing verbally. The Court: Yes. I think we are being quite clear here.

So we are clear, we are quite fine. I want Mr. Akavak to correct us. Mr. Akavak I think is telling me that Elee’s voice was such that he sounded like it did not happen on purpose. The Witness: Mm-hmm. Mr. McLaren: Right, and that was his understanding of what was being communicated. The Court: Is that fair Mr. Akavak ? The Witness: If I could explain it better. That it happened out of rage, out of rage very quickly and that was it. Mr. McLaren: Thank you. That clarified my notes so I understand what his response was, Sir. The Court: Okay. I think I am clear counsel, too as to what Mr.

Akavak is interpreting…Thank you for your evidence. (Staff Sergeant Jimmy Akavak Trial Transcript: page 28, Iine 18-page 29, line 3) [ 197 ] The conversations between the Staff Sergeant and Elee were recorded, and the following excerpts are instructive in terms of seeing what was going through Elee’s mind at the time: EG: (Elee Geetah) Yea he did strike me so that’s why I killed him (Ex: P-9, p. 2, l, 15) EG: Well I didn’t want to do it, just the anger took over me. (p. 2, l, 19) EG: He made me so mad. (p. 2, l, 27) EG: I go very mad deep down. (p. 3, l, 33) EG: Not on purpose. (p. 3, l, 37) EG: It just happened that way. (p. 3, l, 41) EG: If I did it on purpose, I would have committed suicide. (p. 4, l, 1) EG: I just got mad so deep down, that what happened unexpectedly.

I do love all my relatives very much. I wouldn’t even be crying if I did it on purpose, it wasn’t on purpose it was because I got mad very deep down. (p. 3, ll, 5-7)

EG: Well he made me get hurt. (p. 6, l, 14) EG: It wasn’t on purpose. (p. 6, l, 18) EG: I go mad deep down inside, suddenly, it wasn’t on purpose. (p. 6, l, 22) EG: I’m very scared right now because it wasn’t on purpose. (p. 7, l, 5) EG: Well I get real mad easy since my best friend committed suicide when I was down south. (p. 7, l, 18) EG: Ee (yes), because he was my best friend, my only close friend, that’s why I get real mad easy, when he was over here and I was down south when he committed suicide, I was thinking he was missing me.

I have understood it that he missed me, was only friend to me, well about money, well he used to carve with me. I used to give him money, I think he was low on money and he missed me very much so that’s why he committed suicide. I still do miss him very much he was my best close friend. (p. 7, ll, 23-28) [ 198 ] The forensic evidence - pathology and ballistics - is not in dispute. It is clear that the cause of death was from a single blast of a .20 gauge shotgun (with No. 2 shot).

Pellets broke the skin, the hairline, and some entered the brain (along with some ‘wadding’ and broken pieces of ‘plastic cap,’ which secure the pellets in its cartridge).

The shotgun was seized by police and found to be in working order. [ 199 ] The ballistics expert testified that the distance from the end of barrel of the shotgun (the muzzle) to Jamesie, when the fatal shot was fired, would have been a minimum of 10 feet – that the distance must have been, at least, greater than 10. [ 200 ] The pathologist estimated this distance to be between “3 and 10 feet, something of that order.” [ 201 ] The parties (Crown and Defence) are in general agreement that this distance was likely between 10 and 14 feet. [ 202 ] It is common ground between the parties as well that so-called anatomical pathway of the shot – from the muzzle to Jamesie – was horizontal. [ 203 ] In this case, this likely means that both Elee and Jamesie were standing at the time the shot was fired, and that the shotgun was held at shoulder height when it discharged. [ 204 ] Elee Geetah gave a statement to the police, the day after he was arrested.

He also testified at the trial. [ 205 ] I had summarized Elee’s statement to the police, as well as his testimony earlier. (above: Overview). [ 206 ] For convenience, that

summary is repeated, here, as follows: a. The day after the shooting, Elee was interviewed by police in Cape Dorset. He told them that even though Jamesie had gotten him mad, he was not trying to shoot Jamesie. He said Jamesie was running towards him when he pulled the trigger, and that he tried to move the barrel to miss his brother, but shot him by accident on the top part of the head. He told police if he had actually wanted to shoot Jamesie that he would have done so with a straight on shot and hit him in the face or neck.

Elee admitted to firing shots out of the upstairs bedroom window, and he admitted that this was a dangerous thing to do. But he maintained that he was careful to avoid actually hitting anyone. He would not however, admit to firing a shot at the RCMP residence or shooting the RCMP member’s dog. He said the reason he fired all these shots was to let people know that “it’s dangerous.” b. Elee testified in the trial. He said the reason he fired the shotgun, at all, was to scare everybody out of the house, and then kill himself.

He said he did not fire from the living room, like he had told the police earlier, but from just outside the laundry room door. He said he wanted to fire at the front door at the other end of the house. He testified that as he pulled the trigger, Jamesie simultaneously came out of the kitchen and was hit by accident as he stepped into the cone of shot. Elee testified that he did not see his brother before he pulled the trigger and so there was simply “no time” to move the barrel in order to avoid hitting Jamesie.

Elee testified that the reason he fired the shots out the bedroom window was to create a dangerous situation in the hope that the police would feel they needed to kill him.

[ 207 ] During his testimony, Elee did not explain why this evidence, being offered under oath, differed from what he had told the police respecting a very important particular namely, where he was standing when he fired the fatal shot. [ 208 ] However, Elee withstood a rigorous cross-examination by Crown counsel, Mr. McLaren, and stuck to his in-chief testimony.

In this regard, however, the Crown’s position is that Elee’s version of events is simply not credible. [ 209 ] There are some excerpts from Elee’s testimony which merit reference since they illustrate the main themes of the defence case. [ 210 ] Elee testified that after the fight with Jamesie, he was feeling not only angry but suicidal as well.

He said, “I was feeling angry because I used to get really angry easy since I missed my friend Omagaitok…I never used to be an angry person before Omagaitok passed away, but after that I started to lose my temper at times…I was so angry I felt disoriented…I’ve never been that angry in my life.” (Elee Geetah Trial Transcript page 24, lines 5-17) [ 211 ] Elee testified that he took 2 shells, “…because the first one was to make them run away and the second one was to use on myself… I was in a rage and hurt inside missing my friend Omagaitok.” (Trial Transcript page 28, l. 23 – p. 29, l, 1) [ 212 ] Mr.

Morton asked Elee about where he stood when he took the shot: Q (Mr. Morton) How were you feeling when you got the shotgun shells ? A I was in a rage and I was hurt inside missing my friend Omagaitok. Q Why were you in a rage ? A Because I missed Omagaitok so much. He was my only real friend and that’s how I felt after he had died. Q Were you angry at Jamesie ? A Not really. Q Now, what did you do next ? A I was trying to make the people in the house run away so I took the shot. But, as I took the shot, he showed up from the kitchen in a sudden manner and I shot him.

Q ….where did you load the shells in the shotgun? A In the laundry room. Q And what did you do after you loaded the shells in the laundry room? A I went out through the doors of the laundry room into the living room and I pumped it and raised the gun and took a shot. I couldn’t see Jamesie as he showed up. Q Okay. Now, you said to us earlier that you were very mad. Do you remember that? A Yes, Q And were you still mad when you came into the living room A Yes, but the intent was to make the people run away. Q When you came into the living room and you pumped the shotgun, were you walking or were you standing?

A I pumped it then right after that I took the shot and he went down. And I moved forward to check, hoping that I didn’t shoot him. Q …So, when you pumped the shotgun were you standing still or were you walking? A I was standing still. Q And when you fired the shotgun were you standing in the same place where you pumped the shotgun? A Yes. (Tr. Tran: p. 28, l, 25 – p. 30 l, 22) [ 213 ] At this point Mr. Morton provided Elee with some Court exhibits (a floor plan diagram, as well as a photograph) so the Elee could place himself, precisely, at the spot he was standing when he pumped and fired the shotgun.

[ 214 ] I pause to note that Elee used the word “living room” rather freely. Technically, anyone who comes even one step outside the laundry room is in the living room. [ 215 ] But Elee placed himself (in the floor plan diagram) only a step outside of the laundry room entrance, in the laundry room alley. [ 216 ] Mr. Morton asked Elee about whether he saw Jamesie when he pulled the trigger: Q (Mr. Morton) Was Jamesie moving when he was shot? A No. Q Could you see Jamesie before you shot him? A No. It was at the time when I pulled the trigger he showed up. Q What were you aiming at when you fired the gun?

A Just the door, the front door. Q Did you think Jamesie was going to be there when you shot at the door? A No, I didn’t think he would show up Q What were you trying to do when you shot the gun? A Just trying to get the people to run away. (Trial Transcript: p. 34, l, 18 – p. 35, l, 2) [ 217 ] Mr. Morton asked Elee what happened after he fired the shot: Q (Mr. Morton) Now after you fired the gun, what happened ? A I went near the coffee table to check on him. Q And “him” was Jamesie? A Yes Q And what did you find when you checked on him? A I was in shock because I shot him accidentally.

Q Was he at that point dead? A I think so. Q Where did you shoot Jamesie, what part of his body? A On the head. Q And for the record, the accused pointed to the upper, right side of his head. Take second if you need it. Were you intending to shoot Jamesie when you fired the shotgun? A No. Q If you had wanted to shoot Jamesie or to shoot anyone, where would you have aimed the shot?

A If I had done it intentionally, I would actually aim around the head and the neck Q At the distance you were from Jamesie, would you have been able to hit him in the head and neck A Yes Q What happened to the gun after you shot Jamesie? A I pumped the gun again and tried to shoot myself and Oqittu took it away, the gun. Q Was Alex involved at all? A Yes, he grabbed me from the back. Q Did you say anything to Oqittu?

A I don’t remember if I said anything at all. Q Do you remember hearing Oqittu testify? A Yes Q Do you remember he said that you told him to “kill me, kill me?” A Yeah Q Do you recall telling him to kill you?” A No. Q At that time, did you want to die? A I did want to die that time and then I started getting these phone calls and I told them I wanted to kill myself and then I was told to give myself up to the RCMP and that’s what I ended up doing. (Tr. Tran: p. 43, l, 17 – p. 45, l, 6) [ 218 ] Mr. Morton asked Elee why he never told Mappaluk or Ping that the shooting was an accident.

Elee replied by saying, “It was a very brief conversation, Jimmy was the only one that I talked to for a long time…I did tell Jimmy it was not on purpose.” (Trial Transcript page 49, l, 12-23) [ 219 ] Mr. Morton, confirmed with Elee, a final time, as his in-chief testimony came to a close, whether he meant to harm his brother: Q (Mr. Morton) Did you mean to shoot your brother? A No. Q Did you mean to hurt him or injure him with the gun? A No Q Were you still angry, mad, upset when you fired the gun?

A Yes. (Trial Transcript: page 49, line 27 – page 50 line 7) [ 220 ] Regarding the shots that Elee fired from the upstairs window, when he was alone in the house after shooting Elle, he said that, “I fired some more shots to the ground and to the front of people.” (Trial Transcript page 46, line 4) [ 221 ] The prosecutor, Mr. McLaren, questioned Elee about this: Q (Mr. McLaren) …why exactly were you doing that (shooting out the window)? A I was trying to let them know it’s a dangerous area around that time? Q I am sorry, I am confused. It was only dangerous because you were shooting? A Yes.

Q Were you trying to get the police to come in and kill you? A That was the idea and then Jimmy called me and he told me to give myself up to the police and I did. (Elee’sTrial Transcript: page 102, line 25 – page 103, line 8) [ 222 ] During cross-examination, Mr. McLaren confronted Elee with the fact that the laundry room alley is some 19 or 20 feet long, but that the forensic evidence showed the shot was fired from a closer distance. Elee replied, “I never really paid attention to how big the spaces in the house are.

I just felt it was pretty close.” [ 223 ] Elee also disputed the suggestion that it would not be possible for him to hit Jamesie with a horizontal shot, if he was holding the shotgun at the waist, and at an upward angle (as he demonstrated in Court). [ 224 ] Nor was Elee receptive to the suggestion that he was having such a bad day that - after Jamesie put him down that “he was going to make somebody pay.” (Trial Transcript: page 73, lines 2-3) [ 225 ] Elee denied being upset that Mappaluk refused to let him babysit little Joanassie, or being upset about the idea he would need to account to his parents for the damage he did to the house.

[ 226 ] Elee did agree with Mr. McLaren’s proposition that “you don’t point a firearm at something if you don’t mean to hit it.” [ 227 ] Elee continued to maintain that the shooting was an accident. [ 228 ] Elee denied Mr. McLaren’s suggestion that he chose the shotgun because it would do the most damage, and would be the easiest to use within the small confines of the house. [ 229 ] Mr. McLaren suggested to Elee as well that if he only wanted to scare people out of the house he could have done so without loading and firing the shotgun.

In response Elee maintained that he did not think people would leave unless he took the extreme step of firing a shot. [ 230 ] Mr. McLaren also put it bluntly to Elee that if he was in rage, because of what Jamesie had done to him and also intent upon suicide; that his intentions were simply to kill Jamesie and then force the police to kill him. Elee rejected this suggestion. [ 231 ] Finally, Elee rejected the blunt proposition put to him by Mr. McLaren that, “..you fired straight at him (Jamesie) and hit him on the top of the head.” (Trial Transcript page 95, lines 26-27) C. The Positions of the Parties 1.

The Position of the Crown [ 232 ] The Crown suggested that I should reject Elee’s testimony that he did not intend to shoot his brother. [ 233 ] In this regard, the Crown is both firm and fair: The Crown says that Elee has not attempted to color things, or deliberately mislead the Court. Rather, the Crown suggests that Elee is a young man who has killed his brother, and that he has just started to come to grips with that fact.

But his efforts to come to an understanding and reconciliation have led him to tell a story, and to craft a scenario, in a way that makes it most easy for him to be at peace with himself. [ 234 ] The Crown suggests that the scenario which Elee has crafted is one which mitigates his involvement as well as his liability: A scenario where in the telling of the death of his brother, characterizing it as a complete “accident,” that no one expected or anticipated. [ 235 ] The Crown says when Elee fired the shotgun, there is no doubt that he intended to shoot at Jamesie; that he knew Jamesie was there, at the other end of the barrel. [ 236 ] The Crown says that Elee’s motive for doing so was simply because he was mad at Jamesie. [ 237 ] The Crown pointed out that Elee’s day had not been going particularly well.

Early in the day he had kicked a hole in the bathroom door. Later, he was rebuked by his sister, Mappaluk, when he asked her if his little nephew, Joanassie (the apple of his eye) could stay and visit; and finally, he was prevented from even leaving the house by Jamesie. [ 238 ] In particular, the Crown suggests that Elee’s testimony about firing the shot down the laundry room alley (only a step outside the laundry room) should be rejected for two reasons.

First, because it does not fit the forensics (the distance from the laundry room entrance to the kitchen is nearly 20 feet, far beyond the estimates of both forensic experts, Dr. Milroy and Mr. Rioux). Second, because it contradicts the evidence of every other eye witness (who all say Elee was standing in the living room when he fired the fatal shot). [ 239 ] The Crown acknowledges that the three witnesses, Oqittu, Leetia, and Alex may have different perspectives on a similar sequence

of events.

Nonetheless, the Crown says, their evidence is clearly consistent with a scenario where Elee emerges from the laundry room, looking for Jamesie. [ 240 ] The Crown also maintains that while Elee may have pointed the shotgun momentarily towards the front door, as at least one of the witnesses said, he still nonetheless had a clear view of the kitchen entrance. [ 241 ] The Crown says that Elee did not come out of the living room and look around the living room. [ 242 ] Instead, the Crown asserts that he purposefully positioned himself where he was facing the kitchen entrance, knowing Jamesie was in the kitchen. [ 243 ] The Crown suggests the evidence is clear that Elee fired the shot from within the living room oval; that Oqittu, Leetia, and Alex are certain of this. [ 244 ] In Mr.

McLaren’s submission: “When three people see that, if one person see him (Jamesie) and says it looked like he came out of the kitchen; the next one says, he stopped and turned; and the third one says, he is stepping towards him, they all have seen very short segments of a very fast chain of events. And that’s the last image they have of their brother and nephew before he dies…” [ 245 ] The Crown says there are no contradictions in the testimony of these three eye-witnesses.

They all saw the shot being fired; they all saw the shotgun pointed in Jamesie’s direction in the moment before it was fired; and they all saw Jamesie get shot, and fall down. [ 246 ] The Crown suggests that the fatal shot was a straight on shot, with the distance between muzzle and Jamesie, likely between 10 to 12 feet. [ 247 ] In particular, the Crown notes Dr.

Milroy’s evidence to the effect that the anatomical pathway of the shot, from shooter to deceased, was relatively horizontal The Crown says that his means that the shotgun was most likely held at shoulder level, and (since the brothers are roughly the same height) that Elee was pointing at Jamesie’s head in the moment before he pulled the trigger. [ 248 ] The Crown says that it would have been impossible, from where Elee stood in the living room, for him not to see Jamesie; that there were no major obstructions blocking Elee’s view of the kitchen entrance, and Jamesie was not a ‘tiny’ person.

He would have been an easy target. [ 249 ] In this regard, and during final argument Mr. McLaren said, “With respect, he (Elee) did a pretty good job of hitting his brother. He didn’t blow a hole in his chest, a larger target area….That it was the upper part of the head rather than right in the middle of the face as if it was a bull’s-eye aim maybe suggests that he really wasn’t taking a measured aim. But certainly, in the Crown’s submission, he fired it knowing that the brother was right there in front of him.

And, in the Crown’s submission, he fired it deliberately at his brother, because he was mad at his brother and he was going to teach his brother a lesson. And the lesson he was going to teach him was he was going to shoot him.

And the natural consequence of when you shoot somebody is they die.” [ 250 ] The Crown also asks the Court to reject Elee’s testimony (and what he said to the police during his interview) to the effect that, “if I had been aiming at him (Jamesie) I would have done a better job of hitting him.” [ 251 ] The Crown rejects the notion that the location of the wound suggests that the shot was some kind of ‘glancing’ or tangential shot, akin to a near miss.

[ 252 ] The Crown points out that although Elee is generally considered an accurate shooter when he is out on the land hunting, one might not expect the same level of acuity in a highly charged emotional setting, when he was in a mad rage. [ 253 ] Further in this regard, the Crown suggests that Elee’s choice of firearm, a shotgun, as opposed to a rifle – is telling. It is a well- known fact (and confirmed in this case by the ballistics expert, Mr.

Rioux) that a shooter only needs to aim a shotgun in the general direction of the intended target in order to hit the target. [ 254 ] The Crown says, this is something that Elee would certainly have been aware of, when he was contemplating (however briefly) his choice of firearm. [ 255 ] The Crown also points to Elee’s “post-offence conduct,” that is, to his behavior after the shooting. [ 256 ] The Crown says, in the realm of normal human affairs, if indeed he had accidentally shot his brother, one would expect Elee to immediate proclaim, repeatedly and emphatically, that such was the case. [ 257 ] The Crown suggests that one would expect Elee to cry out in anguish, with words to the effect, “Oh my God, what have I done!,” or, “I didn’t mean it, it was an accident !” or (as Mr.

McLaren so discretely articulated during closing argument) at least, “What the _____ happened ?!” [ 258 ] The Crown says the absence of such a reaction by Elee – particularly when the shooting happened right in front of his own siblings – is both stunning and telling. [ 259 ] The Crown says that it is telling because it suggests that what happened was anything but an accident. [ 260 ] Similarly, the Crown notes that Elee never told Mappaluk or Ping that he shot Jamesie by accident; And, in response to the defence position that these were very brief phone calls where Elee provided no detail about the shooting, the Crown asks, rhetorically, “how long does it take to say it was an accident?” [ 261 ] The Crown argues, as a matter of law that this post-offence conduct (the failure of Elee to react in a way that, objectively speaking, we would expect anyone in such a situation to react) is relevant evidence. [ 262 ] The Crown submits that this post-offence conduct should be given considerable weight in assessing Elee’s credibility and in turn, in coming to the ultimate adjudication– namely, in determining whether the Crown has met the onus of establishing criminal intent. [ 263 ] The Crown also notes the conversation between Elee and Staff Sergeant Akavak. [ 264 ] Elee told Staff Sergeant Akavak that it was a deep anger that made him shoot his brother. [ 265 ] He also told Staff Sergeant Akavak that “it was not on purpose.” [ 266 ] Elee also agreed with the Staff Sergeant’s suggestion that, “it was a spur of the moment thing.” [ 267 ] The Crown notes that, while Elee did say the shooting was “not on purpose,” he did not say, “it was an accident.”

[ 268 ] The Crown urges caution as the Court interprets this phrase “not on purpose.” [ 269 ] Staff Sergeant Akavak testified that “He (Elee) sounded upset as to what happened, very upset actually. He sounded to be remorseful. He sounded to be in shock. And that it happened not on purpose. He didn’t say it was an accident but it was not on purpose, as to what happened.

It happened very quick and he sounded to be sober.” [ 270 ] The Crown suggests that Elee’s choice of phrase “not on purpose” only suggests that the shooting was not premeditated – that is, something Elee had been thinking of in the days, hours, or even minutes, before he lost his temper. [ 271 ] The Crown says the phrase “not on purpose” should not be interpreted to mean that Elee did not intend to shoot his brother, and/or that the shooting was an accident. [ 272 ] The Crown says Elee’s choice of phrase “not on purpose” merely suggests that the shooting was a quick, spur of the moment thing, driven by anger. [ 273 ] In this regard, the Crown reminds that I had questioned Staff Sergeant Akavak about this in detail – and that he seemed to agree with the Crown’s suggested

interpretation of Elee’s choice of phrase, “not on purpose.” [ 274 ] Indeed, in this regard, Staff Sergeant Akavak said, “If I could explain it better. That it happened out of rage very quickly and that was it.” [ 275 ] The Crown also urges the Court to reject Elee’s testimony that he loaded the shotgun with the intention of simply scaring everybody out of the house, before killing himself. [ 276 ] The Crown suggests that if Elee only wanted to scare everybody out of the house he could have done so in a number of ways without loading and firing the shotgun.

For example, he could have waived an unloaded firearm around and simply threatened people to leave.

Common sense, says the Crown, dictates that this would have worked and people would have likely scampered out of the house. [ 277 ] The Crown rhetorically asks, if Elee wanted to scare “everybody” out of the house, why he did not first ‘look around the entire living room,’ and confront everybody. [ 278 ] Instead, says the Crown, Elee ‘confronted’ only Jamesie by focusing on an area of the house where he knew Jamesie was, and firing the shot in that direction. [ 279 ] The Crown also suggests that if Elee was indeed feeling “suicidal” after the altercation with Jamesie, then he may well have reached the point where he was both mad at Jamesie, and so frustrated, generally, that he had decided to die.

In this scenario it is not unreasonable to conclude that Elee’s plan was to shoot Jamesie and then wait for the police to come and shoot him. [ 280 ] Respecting the limited defence of provocation, which allows the judge or jury to return a lesser verdict of manslaughter, the Crown’s position is clear.

The Crown says the law requires that four strict conditions must be met before the defence of provocation can succeed and reduce murder to manslaughter. [ 281 ] In this case, the Crown says that as only one such condition has been met this limited defence must fail. [ 282 ] The Crown concedes that the first basic condition has been met. Namely, that Elee was the victim of sudden wrongful act

instigated by Jamesie. Elee wanted to leave the house and was assaulted (punched and put to the ground) by Jamesie. [ 283 ] The Crown says, however, that the second condition required has not been met. Specifically, the Crown says that an ordinary person in Elee’s position would not after being assaulted by Jamesie, be deprived of the power of self-control. [ 284 ] The Crown says that Elee and Jamesie generally had a good relationship and that there was no ‘power imbalance’ between the two brothers.

The Crown adds that the fight was not even all that serious – and it was more of a scuffle than an actual fist fight. [ 285 ] The Crown also suggests that the third requirement for a successful provocation plea has not been met. Namely, that the accused did not, in fact, lose self-control. [ 286 ] The Crown reminds the Court that Elee testified that he “wasn’t really that mad” at Jamesie and that he just wanted to frighten people out of the house.

If the Court accepts this testimony then the Crown says that clearly Elee did not lose the power of self-control. [ 287 ] However, the Crown suggests that the Court reject Elee’s assertion that he was not mad at Jamesie. The Crown says such an idea flies in the face of all the evidence. [ 288 ] The Crown maintains the evidence shows that Elee was deeply upset, and mad at Jamesie; however, the Crown says that Elee did not lose self-control.

The Crown says Elee’s actions, in choosing the weapon and securing the ammo, were deliberate and measured – and not the actions of someone who has lost self-control. [ 289 ] Finally, respecting provocation, the Crown asserts that the fourth requirement or condition necessary to found this defence is also absent. Namely, the defence has not shown that Elee acted suddenly, and before there was time for his passion to cool. [ 290 ] The Crown notes Elee testified that after the fight he went upstairs for a short while to think about what he was going to do next.

The Crown says that he then returned downstairs to select the firearm and the ammo. [ 291 ] The Crown admits that not much time passed at this point, but it was certainly sufficient to allow Elee to cool down. Accordingly, the Crown says he did not act suddenly and before his passion had a chance to cool.

Thus, the fourth condition for provocation is missing. [ 292 ] The Crown noted as well that there appeared to be no behavior by Elee which, in most cases, would suggest that he was ‘in the throws’ of an uncontrollable passion – for example, no yelling, or screaming, or swearing. [ 293 ] Simply put, the Crown’s position is that the evidence establishes, beyond any reasonable doubt, that when Elee pulled the trigger, he either intended to kill Jamesie or cause such bodily harm to Jamesie that he knew it was likely to cause death and was reckless whether death ensued or not. [ 294 ] Accordingly, the Crown says Elee should be found guilty of second degree murder. 2.

Position of the Defence [ 295 ] Defence counsel said the proposition (or principle) that a “person intends the natural consequences of their acts” does not help the Court resolve this case. [ 296 ] Rather, it simply begs the very question in issue: Did Elee intend to shoot Jamesie or not?

[ 297 ] The Defence conceded that if Elee did intend to shoot Jamesie, then the proposition applies: He would stand guilty of murder because the natural consequence of shooting someone in the head at close range is death. [ 298 ] The Defence position, however, was that on the basis of the evidence before the Court, there is certainly a reasonable doubt as to whether, when Elee fired the shot, his intention was to shoot his brother. [ 299 ] Accordingly, the

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