R v Kayaitok, 2017 NUCA 1

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Kayaitok , 2017 NUCA 01 Date: 20170307 Docket: 24-14-006 CAP Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - Bruce Kayaitok Appellant _______________________________________________________ The Court: The Honourable Madam Justice Karan Shaner The Honourable Mr. Justice Thomas W. Wakeling The Honourable Madam Justice Michelle Crighton _______________________________________________________ Memorandum of Judgment Appeal from the Conviction by The Honourable Mr. Justice E. Johnson Dated the 23rd day of August 2013

Appeal from the Sentence by The Honourable Mr. Justice E. Johnson Dated the 25th day of March, 2014 _______________________________________________________ Memorandum of Judgment _______________________________________________________ (NOTE: This document may have been edited for publication) The Court: I. Introduction and Background [ 1 ] On the first day of trial, the appellant attempted to plead guilty to manslaughter in the death of his common law spouse.

He admitted that he unlawfully assaulted her in the morning on June 13th, 2008 during an argument and that, at some point during that assault, he stabbed her twice in the abdomen with a broken mop handle. [ 2 ] He further admitted that she died of exsanguination as a direct result of the injuries he inflicted. The forensic report also noted 42 recent blunt impact injuries all over the deceased’s body. [ 3 ] Having admitted the actus reus for the offence, the primary legal issue at trial, and of this appeal, was whether the appellant had the specific intent required for murder.

The appellant did not argue intoxication, provocation or any defence of diminished capacity or compromised mental state. The Crown rejected the appellant’s offer to plead guilty, advising the Court that it was seeking instead a conviction for second degree murder. The trial then proceeded without oral testimony, based solely on the accused’s formal admissions, statements from a number of individuals whose recollections and observations the appellant admitted were accurate, forensic reports, medical records, photographs of the deceased, autopsy photographs, investigative notes, scene plans and a scene video.

The appellant did not challenge the content of the latter referenced exhibits. [ 4 ] The trial judge convicted the appellant of second degree murder, sentenced him to life imprisonment and set the period of parole ineligibility at 15 years. [ 5 ] The trial judge acknowledged that the depth of the wound may have been open to

interpretation but concluded that, in all of the circumstances, the inference that a sane and sober adult person would know that a person would likely die if stabbed twice in the abdomen ought to be drawn against the appellant.

In doing so, the trial judge also considered post-offence conduct and propensity evidence in finding the appellant had the requisite intent for second degree murder, the latter however only in the context of finding alternative guilt under s 229(a)(ii) of the Criminal Code of Canada (CCC) . [ 6 ] The post-offence conduct evidence consisted of: the appellant’s substantial efforts to clean up the blood at the home rather than to seek immediate medical assistance for the deceased; his efforts to conceal the broken mop handle between two seat cushions in the living room couch; and his repeated lies to the nurses and later to police as to how the deceased suffered the wounds.

The trial judge concluded that, while the appellant’s post-offence conduct was not proof of the appellant having the subjective specific intent for second degree murder, it was nevertheless compelling circumstantial evidence demonstrative of the appellant having cognitive functioning and purposeful conduct and therefore probative of the appellant’s level of intent to justify a conviction under s 229(a)(

i) or (ii) CCC . [ 7 ] As regards propensity evidence, the trial judge admitted evidence of the appellant’s bad conduct only during the year leading up to the deceased’s death, excluding evidence relating to nine prior prosecutions of the appellant for assaulting the deceased between 1994 and 2007.

Confirming his voir dire ruling, the trial judge concluded that the accused’s marital history with the deceased and prior assaults upon her during that period were relevant to the appellant’s mens rea because that evidence, after September 15th, 2007 and up to the date of death, together with the other evidence of his threats, his jealousy and the deceased’s fear that he would kill her, further supported a continuing animus by the appellant toward the deceased and, therefore, relevant to intent.

In addition, having the benefit of the Crown’s written submissions, he was further satisfied that the evidence tended to support the appellant having a motive to kill the deceased. The trial judge concluded that both the continuing animus and motive were relevant to finding guilt under s 229(a)(ii) since that

section contains a recklessness component. In any event, the trial judge acknowledged that the evidence was prejudicial to the appellant, but concluded that its probative value outweighed that prejudice. He also expressly stated, at para 110, that there was no risk that he would conclude that the accused had the requisite intent “because he was a bad character”. [ 8 ] The appellant appeals his conviction for second degree murder and asks this Court to substitute a verdict of guilty to manslaughter. In the event the trial verdict stands, the appellant asks this Court to reduce the 15-year period of parole ineligibility to 12 years.

II. Issues on Appeal [9] The appellant argues that: 1. The trial judge improperly used propensity evidence of the appellant’s past bad behavior to find the specific intent for seconddegree murder. This argument only relates to the appellant’s ongoing assaultive behaviour against the deceased; 2. The trial judge improperly characterized and relied on post-offence conduct to establish the specific intent for second degreemurder. In particular, he specifically emphasized that cleaning up the crime scene does not elevate manslaughter to murder; 3.

The trial judge made fact findings about the nature of the wounds without expert evidence and improperly applied the inferencethat a sane and sober person intends the natural and probable consequences of their act. [10] If the trial verdict stands, the appellant also challenges the period of parole ineligibility on the grounds that the trial judge failedto apply the principles mandated in R v Gladue, (SCC), [1999] 1 SCR 688 and blamed the appellant’s lack ofmotivation on his failure to seek out available treatment options to address his anger issues that fueled his addiction to drugs and alcohol. III.

Disposition of the Conviction Appeal [11] Addressing the appellant’s conviction first, the Court concludes that the trial judge committed no reviewable error on any of thegrounds asserted. A. The Use of Propensity Evidence [12] The appellant argues that the appellant’s prior assaultive behaviour against the deceased does nothing to elucidate his mentalstate as regards the required intent for murder, but rather shows only that the appellant had a pattern of acting on the spur of the momentwithout any specific intent.

He argues the past conduct differed in quality from homicide and that, while the previous assaults illustratephysical brutality, they cannot be seen as evidencing specific intent, or recklessness, to kill. The appellant argues that the trial judge fellinto error by inferring guilt because of the accused’s bad character, rather than on his conduct. We disagree. [13] Propensity evidence which shows only that the accused is the type of person likely to have committed the offence in question isinadmissible.

Evidence relating to the propensity of a person charged carries with it a serious risk of both reasoning prejudice and moralprejudice. The law is equally clear, however, that evidence of bad character of the accused may be admitted where it is relevant to anissue in the case: R v Handy, 2002 SCC 56 at paras 72 – 80, [2002] 2 SCR 908. [14] As stated, the only issue at trial was the appellant’s intention when he killed the deceased.

Based on the propensity evidence thetrial judge considered, he found that it reflected an increasing animus by the appellant towards the deceased, particularly in the monthbefore her death, and it revealed a motive to kill her. The motive implicit in the trial judge’s reasoning was that of jealousy over aperceived lover. He found that the deceased’s fear that the appellant would kill her was increasing and that she had planned to leave therelationship.

In context, the trial judge concluded that the propensity evidence explained the animus and the motive behind the fatalattack. [15] At the hearing, the appellant conceded that the trial judge employed the correct legal test when he concluded that some, but notall, of the propensity evidence was relevant to live issues in the trial beyond the appellant’s general bad character and that its probativevalue outweighed its prejudice. That said, however, the appellant argued that less deference is owed to the trial judge in this casebecause he acted, essentially, as a motions judge.

With respect, that argument cannot succeed because it ignores the legal effect of formaladmissions under the Criminal Code. He did not act as a motions judge, but rather considered the evidence in the form in which it wasoffered. Accordingly, the trial judge’s fact findings in this case are entitled to the same high degree of deference. [16] We disagree with the appellant’s argument that his admission that he killed the deceased renders irrelevant the more proximateevents that give context to the relationship that existed between the parties.

We agree with the Crown argument that such evidenceinforms the appellant’s intent. In fact, we would go further to say that the appellant’s prior assaultive behaviour is not essential to thetrial judge’s finding of guilt. The event did not occur suddenly. It was the result of the appellant’s increased and increasing animus andjealousy over her perceived lover and her intentions to leave the relationship. The trial judge used that evidence, along with all of theother evidence to find that the appellant had the requisite intent under s 229(a)(ii), and in doing so, committed no error. B.

Use of Post-Offence Conduct [17] Whether or not a given instance of post-offence conduct has probative value with respect to the accused’s level of culpabilitydepends entirely on the context and the issues raised at trial: R v White, 2011 SCC 13, [2011] 1 SCR 433 at para 42.

The appellantconcedes the trial judge used the correct test in considering post-offence conduct, and does not challenge its reliability, but rather theappellant argues that it should be excluded from the trial judge’s analysis because it has no probative value on the issue of intent. [18] The exercise of weighing the probative value of proffered evidence against its potential prejudicial effect in the course of thedynamics of a trial is a discretionary task for which trial judges are particularly well-suited. Their decisions in that regard are entitled todeference: R v Berry, 2017 ONCA 17 at para 42.

As stated above in the context of the propensity evidence, we disagree that a trial thatproceeds on the basis of Criminal Code admissions is any less a trial. [19] In the case before us, the trial judge considered – and rejected – the appellant’s argument and concluded that the post-offence

conduct reflected a level of cognitive functioning and purposeful conduct probative on the issue of whether the accused had the requisitemental state for murder. We agree with the Crown’s argument that much of what the trial judge included as post-offence conduct mayactually have been part of the circumstances of the offence itself, but he exercised caution and considered it as if it were post-offenceconduct in weighing its significance.

He acknowledged its prejudicial effect, but concluded its probative value outweighed that prejudiceand considered it in his reasoning. [20] Implicit in the trial judge’s reasoning is that, in context, the post-offence conduct evidence constituted positive evidence of theappellant’s intent to kill the deceased. That inference, in the context of the whole of the evidence, is unassailable.

The trial judge found,on the whole of the evidence, that the appellant beat the deceased severely and, using a jagged metal mop handle, stabbed her twice inthe abdomen resulting in the deceased experiencing a catastrophic loss of blood from which she died over the course of several minutes.While he did not expressly say so, the photographs from the scene that form part of the record support the finding that the extent andseriousness of her blood loss would have been obvious to anyone.

He also found that the appellant then chose not to seek immediatemedical assistance, but instead devoted a substantial effort to cleaning up the blood at the scene, removing the murder weapon from thebathroom to the living room and purposefully hiding it between the couch cushions, before he took the deceased to the Wellness Centerwhere he then fabricated a story or stories about what happened. The trial judge fairly concluded, as a matter of logic and humanexperience, that those actions were probative of intent and significantly more consistent with murder than with manslaughter.

He is oweddeference respecting those findings. [21] Accordingly, the trial judge committed no reviewable error when he relied on post-offence conduct in finding the appellant guiltyunder both ss 229(a)(

i) and (ii) CCC. C. Lack of Expert Evidence and the Common Sense Inference [22] The appellant argues that the extent of the deceased’s injuries are not as clear as they might be and without expert evidence tointerpret those injuries, the trial judge could not have concluded that intent can reasonably be inferred therefrom. He further argues that itis plain and obvious from the wording of paragraph 130 of the trial judge’s reasons that he applied an objective standard to the issue ofintent and did not connect the average sober adult to this accused.

In other words, the appellant argues that the trial judge did not findintent on the part of this specific accused. We disagree with both of these assertions. [23] The appellant’s argument ignores the formal admissions the appellant made regarding the injuries that occurred during anargument. More specifically, his arguments ignore the content of the expert reports that were before the court, including the pathologist’sand forensics reports.

Further, opinion evidence is only necessary where it provides information “which is likely to be outside theexperience and knowledge of a judge and jury”: R v Mohan, (SCC), [1994] 2 SCR 9 at para 22.

Whether the appellanthad the subjective foresight of death when he caused the wounds is, in any event, an inference for the trier of fact, not an expert. [24] Moreover, the appellant conceded the trial judge set out the correct test in which he instructs himself, at para 15-17, that “wheredoubt exists as to the actual intention of the accused the purpose of this process is to determine what the particular accused intended, notto fix him with the intention that a reasonable person might be assumed to have in the circumstances”. [25] The trial judge carefully considered the evidence specific to the appellant including his admission that he assaulted the deceasedduring an argument and, at some point during that assault, stabbed her twice.

The trial judge properly inferred from that admission thatthe appellant’s assault may have included other assaultive behaviour such as hitting the deceased with the broom handle. He alsoaccepted, based on the unchallenged blood spatter evidence and the photographs, that much of the residence was awash in blood and thatthe appellant stabbed the deceased near the bathroom, but continued to beat her with the blood covered mop handle, striking her whenshe was in the living room.

Finally, he accepted that she died within a “magnitude of minutes rather than an hour” after being stabbed inthe abdomen. [26] The trial judge acknowledged that the depth of the wound was open to

interpretation, but that fact did not preclude the inference,based on the prolonged and sustained beating, the photographs and the blood splatter evidence, that the appellant intended to kill thedeceased. His restatement of the presumption in paragraph 130 must be read in the context of the trial judge’s analysis that preceded it. [27] The appellant does not allege the trial judge misapprehended the evidence or that he failed to consider relevant evidence.Accordingly, this ground of appeal must fail. [28] In the result, the conviction appeal is dismissed. IV.

Disposition of the Sentence Appeal [29] The appellant seeks to reduce the period of parole ineligibility from 15 years to 12 years on grounds that the trial judgerecognized the Gladue principles and the need for rehabilitation, but failed to implement them in fashioning his sentence. The appellantis specifically critical of the trial judge for apparently blaming the appellant for lacking motivation to seek treatment for anger andaddiction issues, while at the same time recognizing the lack of local treatment facilities may well have required the appellant to seektreatment outside Nunavut.

The appellant argues that such comments reflect a failure by the trial judge to consider the policies regardingindigenous people in the justice system described in Gladue and a complete disregard for the appellant’s personal circumstances. [30] We disagree. [31] The trial judge’s statement that “[t]he absence of facilities does not mean that there is no help available if the person ismotivated.

Many Inuit every year receive treatment in southern facilities such as the Mamisarvik Healing Centre in Ottawa” must beconsidered in the context of the appellant’s 14-year history of abusing his common law spouse and the many warnings he had throughprevious encounters with the justice system about his conduct in that relationship and where it could lead him. Further, while it is

acknowledged that the appellant was sexually abused by a relative when he was a child, and that trauma fueled a lifetime of alcohol and substance abuse, he also grew up in a stable home with a supportive family. In that context, there are relatively few Gladue factors that connect the appellant to this event. [ 32 ] The circumstances of the offence, including the aggravating circumstances, would place this offence on the high end of parole ineligibility.

This was a brutal homicide of the appellant’s common law spouse representing the culmination of a long period of physical abuse starting when the deceased was 14 years old. The appellant was sober. The offence was committed in the couple’s home when the couple’s two young children were present. The sentencing judge properly took into account that the homicide was committed in a region of the country that has enormous problems with spousal assault and homicide, leading the country in both.

It is clear from the trial judge’s reasons that he took into account the impact of the appellant’s admissions and he considered the appellant’s personal circumstances including the fact that his alcohol and drug addictions were the unfortunate result of an abusive childhood experience.

At the same time, the trial judge recognized that what is an appropriate sentence will not, as a practical matter, differ between indigenous and non-indigenous offenders in the case, as here, of a serious and violent offence: Gladue at 730. [ 33 ] For all of those reasons, we disagree that the trial judge failed to consider and apply the Gladue principles in setting the period of parole ineligibility.

There is no rational basis to conclude that the parole-ineligibility reduction sought by the appellant for this brutal and horrific crime would qualify as a fit sentence. [ 34 ] The appeal against sentence is therefore dismissed. Appeal heard on February 14, 2017 Memorandum filed at Iqaluit, Nunavut This 7th day of March, 2017 Shaner J.A. Wakeling J.A. Crighton J.A. Appearances: T. Lemon/F. Alibhai/M. Tooke for the Respondent J.C. Morton for the Appellant