Her Majesty the Queen - v. -, 2018 SKPC 045

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 045 Date: August 31, 2018 Information: 90147708 Location: La Ronge _____________________________________________________________________________ Between: Her Majesty the Queen - and - Acea Kiennen Dorion Appearing: Mr. Daniel Forbes For the Crown Ms. Erin Layton & Mr. Nathan Forester For the Accused DECISION H.M. HARRADENCE, J INTRODUCTION [ 1 ] On August 10, 2017, in Cumberland House, Saskatchewan, Carrissa Ballantyne died. Her death was caused by a single stab wound to her right chest.

This wound penetrated her body to a depth of 18 cm, puncturing her lung and leading to her death within ten minutes. The injury was likely caused by a piece of glass mirror which was found in the bathtub of her home. The mirror in the bathroom had been smashed. [ 2 ] Carrissa’s boyfriend, Acea Kiennen Dorion (Kiennen), is charged with committing second degree murder in relation to her death. A preliminary hearing was conducted before me on June 12 and 13, 2018, in Cumberland House, continuing on June 14 and 15,

in La Ronge. Crown and Defence counsel were prepared for this hearing and were efficient and effective in fulfilling their respective roles. [ 3 ] An agreed statement of facts was filed as Exhibit P1. In addition, the Crown called ten witnesses: five civilians and four police officers, as well as the pathologist who conducted the autopsy. The Defence did not call any witnesses at this hearing but did agree that the Crown could introduce the audio recorded statement taken by the police from the accused immediately after his arrest.

In this statement the accused does not admit responsibility for the death but rather says that Carrissa said as she was leaving the bathroom, “I stabbed myself”, indicating her death was either accidental or suicidal. (P-2, audio statement of the accused at the scene) [ 4 ] There was no direct evidence presented at the preliminary hearing establishing that the accused caused the death of Carrissa Ballantyne. Mr.

Forbes, counsel on behalf of the Crown, submits that based on the evidence, including the nature, extent and depth of the fatal injury, it is a reasonable inference that the accused caused the death of Carrissa Ballantyne and that he intended to cause her death or cause bodily harm which he knew would likely cause her death as defined in

section 229 of the Criminal Code . As a result, Mr. Forbes requested the accused be committed to stand trial as charged. [ 5 ] Ms. Layton submits that there are no reasonable inferences leading to a committal, only speculation and conjecture. She requests that the accused be discharged. [ 6 ] In the alternative, both counsel suggest that the accused could be committed to stand trial on a charge of manslaughter if I find the evidence sufficient in relation to the accused causing the death while committing an unlawful act but am unable to infer that he had the specific intention to commit murder.

THE EVIDENCE [ 7 ] The agreed statement of facts (P1) is helpful. Attached to it are 14 tabs including a selection of photos, the autopsy report and various DNA reports. [ 8 ] The narrative drawn from P1 and the viva voce evidence is as follows. On August 9, 2017, the accused and the deceased were at the Cumberland House Bar.

According to the agreed statement of facts Carrissa and Kiennen are seen on the bar’s video surveillance “purchasing one case of Budweiser alcoholic beer and one case of twisted tea alcoholic beverage” before leaving the bar together and taking the alcohol with them. [ 9 ] The evidence indicates that the pair went to Carrissa’s residence on Deschambault Street in Cumberland House. Iris Mackenize was at the bar and went to the residence with Carrissa and Kiennen. Kurtis Thomas joined the group at the house. All four were playing card games at the kitchen table and consuming alcohol.

The two men were drinking beer and the women were drinking twisted tea. The toxicology report shows Carrissa had a blood alcohol level of 152mg/100 ml of blood at the time of her death. [ 10 ] Kurtis Thomas and Iris Mackenize testified at this inquiry. Their evidence was consistent. Carrissa was agitated at the residence, particularly towards the accused. Kurtis Thomas is a 25 year old resident of Cumberland House. (That night was the first time he had been to the deceased’s house.) Kurtis testified that Carrissa was pushing Kiennen, she threw beer cans at him, and flipped a table onto him.

He recalled Kiennen trying to calm her down; at one point Kiennen may have thrown beer cans as well. Kiennen was trying to defuse the situation and tried to leave the house, but Carrissa blocked his way. In cross-examination Kurtis’ memory was refreshed and he agreed, as indicated in his police statement, that at some point Carrissa said she was going to kill herself. [ 11 ] Kurtis remembered the police attending the residence. Both Kiennen and Carrissa told the officer that everything was fine and the officer left. After the officer, who turned out to be Cst.

Sloan, was gone Kurtis observed that things settled down between Kiennen and Carrissa. The three of them continued playing cards. [ 12 ] Sometime after the police departed, Kurtis estimated 5:00 a.m., he believed Carrissa and Kiennen went to the bathroom holding hands. In cross-examination Kurtis agreed that he was seated at the kitchen table looking at his phone and from this vantage point, as shown in the diagram of the interior of the house, D-1, he would have been unable to see whether anyone actually entered the bathroom.

Approximately 15 minutes later Carrissa came out into the hallway and ran out the front door. She was bleeding and said something about being stabbed. She went running towards the street where she collapsed and never got up. Kiennen followed her out of

the house crying. After she collapsed Kiennen tried to wake her up and was performing CPR. [ 13 ] Outside the house Kurtis asked Kiennen what happened. Kiennen was upset and repeatedly said to Carrissa, wake up, wake up. It appeared to Kurtis that Kiennen was in shock. [ 14 ] Iris McKenzie is a 24 year old resident of Cumberland House. She was a friend and neighbor of Carrissa. She lives across Deschambault Street with her partner, Brandon Carriere. Iris was at the Cumberland House Bar playing pool with Kiennen and Carrissa. After the bar she also went to Carrissa’s house.

She recalled the three of them being at Carrissa’s house at approximately 10:30 p.m. Kurtis Thomas arrived shortly thereafter. Iris and Carrissa were drinking twisted tea. Iris testified that Carrissa began acting erratically. At times she would hyperventilate, she would become physically aggressive towards Kiennen, and she would threaten to kill herself. She would then calm down. Iris estimated that this sequence took place approximately ten times over the evening and early morning hours of August 10, 2017.

According to Iris, it appeared that while they were playing cards Kiennen and Carrissa would go to the bathroom after each round. [ 15 ] Iris had finished two twisted tea and was just starting her third when, “everything went crazy”. She believed Kiennen said something to Carrissa which caused her to become very mad. She flipped a table over and was attacking Kiennen. According to Iris, Kiennen was not fighting back. This continued for about an hour before Iris’ partner took her home. [ 16 ] Iris’ partner, Brandon Carriere, came to Carrissa’s house and told Iris to come home.

After she got home Iris could still hear Carrissa and Kiennen arguing so she phoned the police. She and Brandon watched out the window of their house as the police arrived, stayed for a while then left. Sometime later she heard banging at her front door – the door was kicked in and it was Kiennen asking for help. Kiennen’s hands were covered in blood. Carrissa was lying in the middle of the road motionless.

Iris testified that Carrissa was left handed. [ 17 ] Brandon Carriere testified that on the morning of August 10, 2017, he could hear the commotion created by Kiennen and Carrissa arguing from his house across the street. Brandon wanted Iris to come home because he was concerned for her safety. He went to Carrissa’s house and asked Iris to come home. Brandon could see that Kiennen and Carrissa were still arguing. They followed he and Iris home. During this process, Brandon shouted to Kiennen that Carrissa had slept with other men in the past.

The evidence does not indicate that Kiennen reacted to this remark or even heard it. [ 18 ] Cst. Sloan responded to the complaint made by Iris McKenzie. He testified that he went to Carrissa’s residence on Deschambault Street just after 3:00 a.m. on August 10, 2017. The complaint that he was investigating was that two people were yelling in the street and causing a disturbance. Upon his arrival at the residence, Cst. Sloan spoke to both Kiennen and Carrissa. Both appeared calm. Neither appeared upset nor did Cst. Sloan notice any signs of drinking.

They told him that everything was fine – after five to ten minutes Cst. Sloan left. [ 19 ] After the departure of Iris and Cst. Sloan the only evidence available for a period of approximately three hours comes from Kurtis Thomas as only he, Kiennen and Carrissa were in the house. As indicated, he did not see how Carrissa became injured or the events leading up to it. [ 20 ] Shortly after 6:00 a.m. two paramedics were dispatched to Deschambault Street. The paramedics, Lisa Neudorf and Kerry Buhay, arrived to see the accused administering CPR to the deceased in the middle of Deschambault Street. [ 21 ] Ms.

Neudorf testified that they arrived on the scene at approximately 6:05 a.m. She observed a woman lying in the middle of the street, and a man performing CPR. According to Ms. Neudorf, the man was pleading with the woman to come back and Ms. Neudorf says he was saying that he was sorry. Ms. Neudorf was cross-examined on whether she actually heard the man saying he was sorry. She agreed that there was no reference to this in her police statement or in her notes which she had made shortly after the incident.

She agreed that she could not remember the exact content but believed that the man said words to the effect that “I’m sorry”. Ms. Neudorf told this inquiry that she pronounced the woman, who was Carrissa, dead at 6:15 a.m. [ 22 ] Kerry Buhay knew both Carrissa and Kiennen before this incident. This incident has affected him and at this inquiry he was permitted, by consent, to testify behind a screen. Mr. Buhay said that when he arrived with Ms. Neudorf, Kiennen was administering CPR to Carrissa. In examination in-chief he said Kiennen was talking softly and it was difficult to make out what he was saying.

At one point he heard Kiennen say “I stabbed her and I am sorry”. He said Kiennen’s tone was very apologetic and he repeatedly said “no, no,

no, no”. In cross-examination Mr. Buhay was less certain as to the words Kiennen used. He agreed that in his police statement taken August 10, 2017, he said he heard Kiennen say “I stabbed her” or “she is stabbed”. After cross-examination Mr. Buhay agreed that “stabbed” was the only word he remembered with certainty. [ 23 ] Cst. Arsenault arrested the accused shortly after 6:00 a.m. on August 10, 2017. Initially the accused was arrested for assault with a weapon and then subsequently arrested for murder. Cst.

Arsenault’s conversation with the accused in the police vehicle was audio recorded.(P-2) This recording was entered by consent at this inquiry. On the recording the accused says that Carrissa slammed the mirror and came running out saying she stabbed herself. [ 24 ] Dr. Balachandra is a pathologist. He was qualified to give his opinion as to the cause of death. He performed the autopsy on Carrissa’s body on August 11, 2017, in Regina. His autopsy report was attached to the agreed statement of facts. Both in his report and in his testimony, he detailed his observations of the injuries to the body of Carrissa.

His opinion was that the cause of death was the injury to her right upper chest that pierced her lung and travelled to the back of the rib cage. The injury was measured by him to be a depth of 18 cm. There was no other significant injury. This opinion was not challenged by the defence. [ 25 ] At the autopsy, Dr. Balachandra told Cst. Hill that it was his view that the death was not a suicide or an accident. However, he did not include this opinion in his autopsy report. In his testimony, Dr. Balachandra agreed that he resisted providing this opinion in writing to either counsel.

Finally, when it was suggested at a pre-hearing conference that his opinion should be in writing, Dr. Balachandra provided a

summary of his evidence in relation to the manner of death. This

summary is dated May 21, 2018, and is attached to the agreed statement of facts, P1. [ 26 ] Dr. Balachandra was permitted to testify that, in his opinion, this death was not suicide for three reasons: 1) There were no tentative or superficial wounds surrounding the wound; 2) The fatal injury was through clothing; and 3) The location of the fatal injury. [ 27 ] Dr. Balachandra has performed 6000-7000 autopsies. According to his curriculum vitae, he has a great deal of experience as a pathologist and a medical examiner.

He said that in his experience these three features are inconsistent with suicide and the nature and extent of the wound was inconsistent with an accidental death. Dr. Balachandra agreed in his testimony that a pathologist determines the cause of death by examining the body. A medical examiner determines the manner of death such as suicide or homicide by looking at the findings of the pathologist and also by looking at all of the circumstances surrounding the injury and death.

In this case, he was performing the function of a pathologist but also offered the opinion of a medical examiner without looking at any of the surrounding circumstances of the injury and death. [ 28 ] Dr. Balachandra agreed that he did not know what was used to inflict the fatal injury. In all of his experience he had no familiarity with wounds caused by mirror glass. He saw no pictures of the location of the injury or the instrument used. He said he had no other evidence about the surrounding circumstances of the injury other than his examination of the body.

In cross-examination he agreed that he was not qualified to provide an opinion relating to injuries caused by mirror glass fragments. [ 29 ] Cpl. Dupuis and Cst. Crocker collected the forensic evidence at Carrissa’s house. They focused on the bathroom. The mirror was broken; there were a number of pieces of broken glass in the sink and on the vanity. There was a twisted tea can on the vanity with Carrissa’s finger prints on it. There were some glass fragments in the bathtub along with some blood spatter. A glass fragment 26 cm in length was seized from the bathtub.

Approximately 18 cm of this glass fragment was blood smeared. This is believed to be the instrument that caused the fatal injury to Carrissa. When Cst. Crocker was seizing this fragment, it broke. Cst. Dupuis subsequently attempted to piece this fragment back together. [ 30 ] The photographs taken of the front of the vanity show a pooling of Carrissa’s blood on the floor. Her blood was also located on the inside of the bathroom door and in the handle area.

Kiennen had her blood on him, and it was found on the broken door of Iris McKenzie and Brandon Carriere’s house. [ 31 ] In the photographs of the deceased taken by Cpl. Dupius, at the scene, there appears to be a small cut to the inside of the first finger on her left hand (photo 68 - Tab 7 - P-1). The inside of the hands of the deceased was not photographed at the autopsy, so the existence of this injury cannot be confirmed. Subsequent to his arrest, the hands of the accused where photographed as shown under tab 12 of P-1. There appears to be no injury to his hands. THE LAW

[32] Section 548(1) reads as follows: 548

(1) When all the evidence has been taken by the justice, he shall (

a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence inrespect of the same transaction, order the accused to stand trial; or (

b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for theoffence charged or any other indictable offence in respect of the same transaction. [33] It is critical that the whole of the evidence be reviewed to determine sufficiency. The evidence must satisfy me of itssufficiency on each element of the offence charged. If it does not, I am required to discharge the accused. [34] The task of assessing the sufficiency of the evidence becomes more challenging when, as in this case, the evidence is entirelycircumstantial.

As indicted by Chief Justice McLachlin (as she then was) in R v Arcuri, 2001 SCC 54, at para 23, [2001] 2 SCR 828[Arcuri], a limited weighing is required in order to determine whether the inferential gap can be bridged: [23] Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, withcircumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established – that is, aninferential 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, atpp. 641-42 (“[c]ircumstantial evidence . . . may be testimonial, but even if the circumstances depicted are accepted as true, additionalreasoning is required to reach the desired conclusion”). The judge must therefore weigh the evidence, in the sense of assessing whetherit is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited.

Thejudge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assesscredibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt. (emphasis added) [35] It is generally accepted that the test for committal or discharge at a preliminary hearing is the same as a test for a directedverdict at a trial.

Justice McLachlin, as she then was, in her dissenting reasons in R v Charemski, (SCC), [1998] 1 SCR679, (which reasons are referred to with approval in Arcuri), links the test for a directed verdict and the doctrine of proof beyond areasonable doubt in the following way at para 20: [20] A properly instructed jury acting reasonably is a jury that will convict only if it finds that the evidence establishes guilt beyond areasonable doubt.

To determine whether this could occur, the judge on the motion for a directed verdict must ask whether some or all ofthe admissible evidence is legally sufficient to permit the jury to find guilt beyond a reasonable doubt. In doing so, the trial judge isdetermining the sufficiency of the evidence. The question is whether the evidence is capable of supporting a verdict of guilt beyond areasonable doubt. If it is not, the judge must direct an acquittal, since it would be impossible for a reasonable jury to convict legally onthe evidence.

The case against the accused has not been made out and there is no charge to answer. To permit the trial to continuewould be to impinge on the accused’s right to silence and right to be presumed innocent until proved guilty, and to risk a verdict thatwould necessarily be unreasonable. (emphasis added) [36] There may be more than one reasonable inference. I must commit if one of the available inferences support committal. Inshort, I must take the view of the evidence most favorable to the Crown.

In R v Sazant, 2004 SCC 77, [2004] SCR 635 [Sazant], JusticeMajor says, at p 643, para. 18: [18] …a preliminary inquiry judge is not permitted to assess credibility or reliability, and that where more than one inference can bedrawn from the evidence, only the inferences that favour the Crown are to be considered. A preliminary inquiry judge who fails torespect these constraints acts in excess of his or her jurisdiction… (emphasis added) See also, R v Walcer, 2011 SKCA 8 at para 37, 366 Sask R 139 [Walcer]. [37] A consideration of the whole of the evidence is required.

In R v Deschamplain, 2004 SCC 76, [2004] 3 SCR 601, JusticeMajor put it this way, at para 18: [18] Section 548(1)(

b) requires the preliminary inquiry judge to consider “the whole of the evidence” that “has been taken” duringthe preliminary inquiry. The primary purpose of a preliminary inquiry is to “ascertain whether there is sufficient evidence to warrantcommitting the accused to trial”: R. v. Russell, [2001] 2 S.C.R. 804, 2001 SCC 53, at para. 20. It follows that Parliament never intendedto allow decisions on the discharge of an accused to be made without full regard to all of the evidence. In my view, it is a jurisdictional

error for a preliminary inquiry judge to fail to consider the “whole of the evidence” as required under s. 548(1)(b), and the Ontario Courtof Appeal erred in concluding otherwise. [38] It is critical to appreciate the different role and authority between a preliminary hearing and a trial. The preliminary inquiry islimited to a screening role with authority to determine the sufficiency of the evidence, whereas the trial weighs evidence, determinescredibility and establishes guilt or innocence (R v Russell, 2001 SCC 53, at para 20).

The Sazant warning is critical to this distinction andwas emphasized by Madam Justice Jackson in Walcer, at para 37: [37] As the Crown concedes, there could be other possible explanations for Mr. Walcer’s activities, but when the Court appliesSazant, supra at para. 18, any reasonable

interpretation or permissible inference from the evidence must be resolved in favour of theCrown.

It is true that the evidence, in the eyes of some, might approach speculation and conjecture, but as the references to Shephard,Skogman and Arcuri make clear, that is not the standard of review to be applied. [39] In R v Jackson, 2016 ONCA 736, 33CR(7th) 130 [Jackson], Justice Doherty explains the limited weighing as follows atparagraphs 7-8: [7] In conducting this limited weighing, the preliminary inquiry judge takes the case for the Crown at its highest, meaning sheaccepts the credibility of the evidence relied on by the Crown and assumes the reasonable inferences from the primary facts that are mostfavourable to the Crown: R. v.

Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18; R. v. Foster (2008), 76 W.C.B. (2d) 769, at para.31 (Ont. S.C.); and R. v. Howells, 2009 BCCA 460, 85 W.C.B. (2d) 370, at paras. 13-14. [8] If the preliminary inquiry judge decides that on a view of the evidence most favourable to the Crown, the circumstantialevidence could reasonably support the inferences necessary to establish guilt, she must commit the accused for trial.

It is irrelevant thatthe evidence also supports inferences inconsistent with guilt. [40] As a result, at this preliminary inquiry I am required to assess the evidence and conduct a limited weighing of it to determineif there is an inference available that would support a conviction and, if so, whether that inference is reasonable given all of the evidence. [41] In the context of this inquiry the evidence must be capable of supporting a reasonable inference regarding both causation andintention. Homicide is defined in s. 222 of the Criminal Code as occurring when a person causes the death of a human being.

Culpablehomicide is committed where death is caused by an unlawful act. It is classified as either murder or manslaughter. The distinctionbetween these two offences centers on the mental element. Chief Justice Lamer concluded in R v Martineau, (SCC),[1990] 2 SCR 633 at p 646, “it is a principle of fundamental justice that a conviction for murder cannot rest on anything less than proofbeyond a reasonable doubt of subjective foresight of death.” [42]

Section 229(

a) of the Criminal Code defines murder as when, an individual means to cause death or means to cause bodilyharm knowing death is likely: 229 Culpable homicide is murder (

a) where the person who causes the death of a human being (

i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not [43] In R v Moo, 2009 ONCA 645 , 247 CCC (3d) 34 [Moo], Justice David Watt provides a framework for analysisrelating to s. 229(a)(ii): [45] The fault element in the definition of murder in s. 229(a)(ii) consists of three components: • Intention (to cause bodily harm); • Knowledge (that the bodily harm will probably be fatal); • Recklessness (whether the victim dies or lives);

Subjective foresight of death is a constitutional requirement for the crime of murder: R. v. Martineau, (SCC), [1990] 2S.C.R. 633, at p. 646. [46] The most prominent among the three components of the fault element in s. 229(a)(ii) is the intention to cause bodily harm of such agrave and serious nature that the person inflicting the harm, the accused, knows that the harm is likely to kill the victim. Thiscombination of intention and subjective foresight of the likelihood of death renders the recklessness component in s. 229(a)(ii) almost anafterthought: R. v. Nygaard, (SCC), [1989] 2 S.C.R. 1074, at pp. 1087-1088.

ANALYSIS [44] When I consider all of the evidence, including the photos, it is a reasonable inference that the fatal wound was inflicted in thebathroom of Carrissa Ballantyne’s home just before 6:00 a.m. on August 10, 2017. The instrument that inflicted this injury was the glassfragment which came from the broken mirror that was found in the bathtub and seized by Cst. Crocker. [45] I am of the view that Dr. Balachandra’s evidence is helpful in relation to the cause of death and the timing of death.

Heopined that the single 18 cm wound was the cause of death and that death would have likely occurred a short time after this injury, likely10 minutes. His opinion regarding the manner of death must be qualified by his limited knowledge of these circumstances, particularlyas demonstrated in cross-examination. When he first ventured this opinion at the autopsy he was not aware of the type of weaponalleged or any of the circumstances of the death.

Given the limitations of his opinion regarding the manner of death and the basis of thatopinion, I must be cautious when weighing that evidence. [46] The recollection of both Buhay and Neudorf is equivocal when recalling the precise words the accused used when he wasperforming CPR. It is clear that the accused was not angry but rather very upset and emotional. Clearly he was trying to save the life ofCarrissa and pleading with her to wake up. He likely said to her that he was sorry and that he stabbed her or that she was stabbed. Thesewords and actions of the accused occurred after Carrissa was injured.

This conduct can be relevant as stated by Justice Doherty inJackson, at para 20: [20] The Superior Court judge erred in both respects. First, evidence of post-offence conduct may have relevance to the state of mindof the perpetrator. The inferences that may be available from post-offence conduct depend upon the specific conduct and the rest of theevidence. There is no per se rule declaring post-offence conduct irrelevant to the perpetrator’s state of mind: see R. v. Rodgerson, 2015SCC 38 , [2015] 2 S.C.R. 760, at paras. 20-21.

The preliminary inquiry judge saw the post-offence conduct as capable ofsupporting inferences relevant to Mr. Jackson’s state of mind. That determination, whether right or wrong, was within the jurisdiction ofthe preliminary inquiry judge. (emphasis added) [47] After-the-fact conduct must be considered in the context of the totality of the evidence. [48] In assessing the evidence relating to causation, the objective or primary facts must be considered to determine whether theyprovide the basis for a reasonable inference that the accused caused the death of Carrissa while committing an unlawful act.

These factsare: • Carrissa and Keenan were in a relationship and had a child together. On the evening of August 9 into the morning of August 10they were drinking together. They ended up at Carrissa’s residence together with Iris Mckenize and Kurtis Thomas; • They were playing cards. Carrissa became angry at Kiennen as a result of something Kiennen said. They argued. The argumentbecame physical with Carrissa being the aggressor. Carrissa prevented Kiennen from leaving. During the course of the argument shethreatened to kill herself; • Iris Mckenize left the residence.

She phoned the police to report the disturbance that Kiennen and Carrissa were continuing tomake. At 3:00 a.m. Cst. Sloan attended Carrissa’s residence to investigate the complainant. He testified that everything was calm. He didnot observe any signs of drinking, or of a dispute between Carrissa and Kiennen. • Kurtis Thomas, Kiennen and Carrissa remained at the residence. Kurtis testified that sometime after 5:00 a.m. Kiennen andCarrissa went to the bathroom holding hands. Fifteen minutes later Carrissa ran from the bathroom saying she has been stabbed. She leftthe house and was followed by Kiennen;

• Carrissa collapsed on the street. Kiennen administered CPR to her. He kicked in the door of Iris’ residence and shouted for them to call for help. While he was administering CPR he was pleading with Carrissa to come back, saying he was sorry and also saying he stabbed her or she is stabbed; • At the scene after his arrest, Kiennen told Cst Arseneault that the mirror in the bathroom smashed and Carrissa said, “Oooh, I stabbed myself” (P-2); • There is no forensic or other direct evidence that the accused was in the bathroom at the time that the deceased was injured.

The evidence of Kurtis Thomas indicates that Carrissa and Kiennen walked towards the bathroom hand-in-hand shortly after 5:00 a.m. He further says that it was 15 minutes later that she came running from the direction of the bathroom and was obviously injured. The objective evidence from the pathologist and the paramedics is that she would have died within ten minutes of the injury. She was pronounced dead at 6:15 a.m.; • The mirror in the bathroom was smashed. Carrissa’s blood was in front of the vanity, on the bathroom doorknob and spattered in the tub. One of the pieces of mirror fragment was 26 cm in length.

A portion of this fragment, 18 cm, was smeared with Carrissa’s blood. This is the likely instrument that caused the fatal injury; • The pathologist testified that the fatal injury was 18 cm in length. It pierced the lung and travelled to the back of the rib cage. Death would have occurred within 10 minutes of this injury. The pathologist’s opinion was that given the nature and depth of the wound, this injury was not caused accidentally or as a result of a suicide attempt. [49] I agree with Ms. Layton that without the opinion of the pathologist the evidence of an unlawful act is weak.

I have reservations about the pathologist’s evidence, particularly his evidence regarding the manner of death as opposed to the cause of death. As I have indicated, this evidence has its limitations. I am also disappointed in the pathologist’s approach, which suggests a lack of objectivity. At the time of the autopsy he engaged in speculation with Cst. Hill as to the manner of death but apparently did not make a record of this conversation and was reluctant to disclose it. Indeed it may not have come to light but for the notes of Cst. Hill.

As indicated by David Paciocco (as he then was) in his 2009 article: Taking a “Goudge” out of Bluster and Blarney: an “Evidence-Based Approach” to Expert Testimony, 13 Can Crim LR 136, at p 154, it is recommended by the Goudge Commission that all corridor conversations be fully recorded: It recommends that all discussions about the case should be recorded by the forensic pathologist, including informal “corridor conversations.” This same expectation should be imposed on all experts.

A complete record permits the lawyer testing the efficacy of the opinion to explore whether the expert gathered all evidence objectively; had contacts that may have influenced the opinion offered; or was exposed to clearly irrelevant or inflammatory information. [50] Despite my reservations, the pathologist’s evidence combined with the utterances of the accused is capable of supporting a reasonable inference that the accused caused the death by an unlawful act. [51] Applying

section 229(

a) and the Moo framework I note that there is no direct evidence as to how or why Carrissa was stabbed. There is no evidence upon which to infer that the accused was angry, either before or after the fatal injury. The whole of the evidence suggests the opposite. During the evening, leading up to her death, Carrissa was angry and expressed thoughts of suicide. After the injury, the accused immediately calls for help, administers CPR and apologizes. It is reasonable to infer from the evidence, particularly the weapon used and the testimony of Kurtis Thomas and Cst.

Sloan that the incident occurred suddenly and was unexpected. [52] Based on a consideration of the whole of the evidence I am not satisfied that the nature and extent of the injury, the opinion of the pathologist and the utterances of the accused are reasonably capable of supporting an inference that the accused meant to cause death or intended to cause bodily harm of such a grave and serious nature that he knew the harm would likely kill Carrissa.

In my view the evidence does not provide the basis for a reasonable inference that the accused had a subjective foresight of death at the time of the fatal injury. [53] As a result in accordance with section 548(1) of the Code , it is my opinion that there is not a sufficient case to put the accused on trial for murder but there is sufficient evidence to put the accused on trial for the offence of manslaughter. He is therefore discharged on the charge of murder but committed to stand trial on the charge of manslaughter relating to the death of Carrissa Ballantyne on August

10, 2017. He is required to appear before the Court of Queen’s Bench in the Judicial Centre of Prince Albert at the next sittings of that Court. Dated this 31 st day of August, A.D. 2018, at the Town of La Ronge, in the Province of Saskatchewan. __________________________ H.M. HARRADENCE, J