Her Majesty the Queen - v. –, 2016 SKPC 83

IN THE PROVINCIAL COURT OF SASKATCHEWAN 2016 SKPC 083 Date: June 6, 2016 Information No.: 24516233 Location: Wynyard ______________________________________________________________________________ Between: Her Majesty the Queen - and – Simon Bako Appearing: Wade Rogers For The Crown Todd Parlee For the Accused ______________________________________________________________________________ JUDGMENT M.G.

MARQUETTE, J. ______________________________________________________________________________ INTRODUCTION [ 1 ] On Information 24516233, Simon Bako is charged that on or about May 24, 2015 at Yellow Quill First Nation: Count 1: Did attempt to murder Amber Peequaquat while using a restricted firearm by discharging the firearm at the said Amber Peequaquat contrary to section 239(1) (a)(

i) of the Criminal Code : Count 2: Did, without lawful excuse, use a firearm, to wit a hand gun, in a careless manner contrary to section 86(1) of the Criminal Code ; Count 3: Did have in his possession a restricted weapon to wit a black semi-automatic restricted pistol without being the holder of a licence under which he may possess it contrary to section 91(3) of the Criminal Code ; Count 4: Did possess a firearm together with readily accessible ammunition capable of being discharged in the said firearm and was not the holder of an authorization or licence under which he may possess the said firearm contrary to section 95(2) of the Criminal Code ;

Count 5: Did have in his possession a firearm to wit a black semi-automatic restricted pistol knowing that it was obtained by the commission in Canada of an offence contrary to section 96(2) of the Criminal Code ; Count 6: With intent to wound Amber Peequaquat did discharge a firearm to wit a black semi-automatic restricted pistol at Amber Peequaquat contrary to section 244(2) (

a) of the Criminal Code ; Count 7: Did intentionally discharge a firearm at a place, to wit House 116 on the Yellow Quill First Nation, knowing that or being reckless as to whether a person was in the place, contrary to

section 244.2(3) of the Criminal Code ; Count 8: Did, without lawful excuse, point a firearm to wit a black semi-automatic restricted pistol at Amber Peequaquat contrary to

section 87 of the Criminal Code ; Count 9: Did have in his possession a weapon, to wit a black semi-automatic restricted pistol for a purpose dangerous to the public peace contrary to section 88(2) of the Criminal Code ; Count 10: Did, without lawful excuse, point a firearm to wit a black semi-automatic restricted pistol at Lindsay Ahpay contrary to

section 87 of the Criminal Code ; Count 11: Did, use a firearm to wit a black semi-automatic restricted pistol while committing the indictable offence of attempted murder while using certain firearms contrary to section 85(1) (

a) of the Criminal Code . Count 12: Did, while bound by a probation order made by the Saskatoon Provincial Court on the 18 th day of July A.D. 2013 fail without reasonable excuse to comply with such order, to wit, keep the peace and be of good behavior contrary to

section 733.1(1) of the Criminal Code . [ 2 ] The Crown proceeded by indictment on all counts set out on the Information. [ 3 ] Prior to trial, Mr. Bako, through his counsel entered guilty pleas to counts 3, 4 and 12. At the conclusion of the Crown’s case, the Crown entered a stay of proceedings on counts 10 & 11. [ 4 ] The trial was held on October 28 & 29, November 25, 2015 and January 29, 2016 at Rose Valley Provincial court. At trial, the Crown called ten witnesses (two civilians and eight police officers) and one rebuttal civilian witness and the defence called one witness, the accused, Mr. Bako.

Closing arguments were heard on March 21, 2016 and the matter was adjourned to today’s date for decision. [ 5 ] This is the Court’s decision in respect to counts 1, 2, 5, 6, 7, 8, & 9 of the information. [ 6 ] On May 24, 2015, Simon Bako, his girlfriend Natasha Ahpay and others travelled from Saskatoon to Yellow Quill First Nation. At that time Mr. Bako was in possession of a .32 caliber handgun.

The Firearms Reference Table Report prepared by Specialized Policing Services, Royal Canadian Mounted Police filed as Exhibit P-6 identified this handgun as a MAB – Model R – Semi-Automatic handgun, manufactured by Manufacture d’Armes de Bayonne in France. It is a prohibited firearm as per section 84(1) of the Criminal Code . [ 7 ] Following their arrival at Y ellow Quill First Nation, Mr. Bako and Natasha Aphay attended at House 116 which is the home of Lindsay (Troy) Ahpay, brother of Natasha Ahpay and his common law spouse, Amber Peequaquat. While there was conflicting evidence at trial as to when Mr.

Bako and Ms. Ahpay arrived at the home, where people went throughout the day and how much alcohol was consumed by whom, it is not disputed that later that evening, Lindsay Aphay, Amber Peequaquat, Natasha Ahpay, Nathan Desjarlais, Nigel Desjarlais, Keegan Machiskinic, Simon Bako and two young children were present at House 116.

[ 8 ] It was at this time, a scuffle erupted involving Mr. Bako. The events precipitating the scuffle and the nature of this scuffle are disputed, but it is not disputed that shortly thereafter, Amber Peequaquat was shot by Mr. Bako’s handgun. A bullet entered through her mid torso area and exited through her back and as a result of the gunshot wound, she was transported by ambulance to the Royal University Hospital in Saskatoon where she underwent emergency surgery.

The gunshot injury resulted in the removal of her spleen and she is now required to take antibiotic therapy daily for the rest of her life. [ 9 ] Immediately following the shooting Mr. Bako ran from the home to Natasha Ahpay’s vehicle parked outside. Marian Taniskishayinew was in the backseat of the vehicle. Gun shots were fired from House 116 toward the vehicle and a shotgun shell was fired through the front windshield of Natasha Aphay’s vehicle. Natasha Aphay then exited the house, got into her vehicle and drove towards Saskatoon with her passengers, Mr. Bako and Marian Taniskishayinew. [ 10 ] Ms.

Ahpay’s vehicle travelled towards Saskatoon and was located by police travelling on Highway 41 northeast of Saskatoon. As the vehicle approached Saskatoon the RCMP observed the vehicle turn off the highway, travel down a grid road and turn into a farmyard. The vehicle remained there for a few minutes then exited and returned to the highway where shortly thereafter the vehicle was stopped by police. The occupants of the vehicle, namely Mr. Bako who was now the driver, Natasha Aphay and Marian Taniskishayinew were arrested without incident.

Following their arrest, the RCMP searched the neighboring farmyard and grid road area and found Mr. Bako’s handgun in the roadside ditch and a small black small-arms ammunition cartridge case at the farmyard. [ 11 ] Following his arrest, Mr. Bako provided a warned statement to the police. At trial he testified that he lied to the police when giving his warned statement primarily due to his legal advice at the time. [ 12 ] There is certainly no dispute that Mr.

Bako had a prohibited firearm, specifically a .32 calibre handgun in his possession when he was at House 116 Yellow Quill First Nation on May 24, 2015 and that Ms. Peequaquat was shot with this firearm. POSITION OF THE CROWN AND DEFENCE [ 13 ] The theory of the Crown is Mr. Bako was angry with Lindsay Ahpay and Amber Peequaquat over the ownership of a truck and this argument began earlier in the day and escalated later in the evening. The crux of the dispute was that Mr. Bako previously had lent money to Mr. Ahpay’s mother who had then given a truck to Mr. Bako as security for the loan and Mr.

Bako upon his arrival at Yellow Quill on May 24 th discovered the truck had been given to Mr. Aphay – essentially he became aware he was now without security for an unpaid debt. [ 14 ] The Crown theorizes this discovery angered Mr. Bako and this argument escalated later in the evening which resulted in Amber Peequaquat removing him from the home – essentially pushing him out the front screen door of the home. As Ms. Peequaquat began to close the front inside door, Mr. Bako stood on the front step of the home, said ‘Fuck you guys’ and then fired his gun directly at Ms.

Peequaquat with the specific intent to kill her. He then fired the gun again into the home, ran to Natasha Ahpay’s vehicle and left in a car driven by Natasha Aphay. [ 15 ] Amber Peequaquat testified that Mr. Bako became angry about the truck being given to Mr. Ahpay and at that point he tried to pull out his handgun but she and Lindsay Ahpay held his arms. She testified he calmed down, stopped trying to pull out the handgun and then became angry again and at this point she decided to remove him from the house. She testified she told him to “Get out, we don’t need this here”.

She testified she backed him towards the front screen door and out of the house and when she returned moments later to close the inside front door, she was shot by Mr. Bako. [ 16 ] Mr. Ahpay corroborated the testimony of Ms. Peequaquat in that he testified that Amber Peequaquat “kicked” him out of the house and then when she went back to shut the door, she was shot. He further testified that after Ms. Peequaquat was shot that there were two more shots fired into the house. [ 17 ] Mr.

Bako testified in his own defence that Amber Peequaquat sustained a gunshot wound when the gun was accidently discharged during a scuffle between Amber Peequaquat and Mr. Bako. Mr. Bako testified that earlier in the day he had questioned Lindsay Ahpay about the truck but testified that he agreed to speak to Lindsay Ahay’s mother about the truck. He testified that earlier that evening they attended an outdoor party in the area and Amber Peequaquat, who Mr. Bako testified was intoxicated, attempted to

push him into an outdoor fire. Consequently, when they returned to House 116 he was reluctant to go back into the house since AmberPeequaquat was present. He testified he finally went into the house to retrieve Natasha Ahpay so they could return to the city and as hewas waiting for Natasha Aphay to finish her drink, Nathan Desjarlais elbowed him as he went walked past him. Mr. Bako testified hegrabbed Nathan Desjarlais and asked “Why you do that?” at which time, Amber Peequaquat jumped on his back and Lindsay Ahpaythen tried to grab his gun. Mr. Bako testified he held Mr.

Ahpay’s hand to prevent him from getting the gun and Natasha Ahpay pulledAmber Peequaquat off of him. At this point, Mr. Bako testified he told Natasha Ahpay “Let’s go” and as he was walking to the door toleave, Amber Peequaquat jumped him and tried to grab his gun and as he struggled with her to prevent her from grabbing the gun, thegun accidentally fired wounding Ms. Peequaquat. [18] He testified he was in shock and ran from the house towards Natasha Aphay’s vehicle.

He testified that people began firing gunsat him from inside the house and he fired two shots into the air away from the house to prevent anyone from coming out of the house. Atthis point, Lindsay Ahpay advised that Natasha Aphay was coming out and Natasha Ahpay exited the house, entered the vehicle and thendrove away with Mr. Bako and Ms. Taniskishayinew in the vehicle. ANALYSIS [19] The standard of proof in a criminal trial is well established. The Crown bears the onus of proving beyond a reasonable doubt allelements of each offence in order for the Court to make a finding of guilt.

The onus does not shift to Mr. Bako - he does not have toprove he did not commit these offences. [20] Mr. Bako testified at trial and stated the gun accidentally discharged following a scuffle between he and Amber Peequaquat. Ms.Peequaquat and Lindsay Aphay both testified that Mr. Bako was removed from the house by Ms.

Peequaquat when he became angry andthat while he was standing on the outside step he shot Amber Peequaquat. [21] In analyzing the evidence as it pertains to each count set out in the information, the court is mindful that a criminal trial is not acredibility contest and that it is not the role of this court to simply choose which side to believe. (See R v Shultz, 2014 SKPC 112, atparagraph 17). [22] Rather, the Supreme Court of Canada in R v W(D) (1991) (SCC), 1 SCR 742 (SCC)(3d) sets out that the properanalysis to be adopted is: - if I as the trier of fact believe the evidence of Mr.

Bako, I must acquit. - If I do not believe the evidence of Mr. Bako but am left in a reasonable doubt by the evidence of the Mr. Bako, then I must also stillacquit. -Further, even if I am not left in doubt by the evidence of the Mr. Bako, I must ask myself on the basis of the evidence which I do accept,am I convinced beyond a reasonable doubt of the Mr. Bako’s guilt.

If I am not, I must also acquit. [23] In R v Vuradin, 2013 SCC 38, the Court held that “the order in which the trial judge makes credibility findings of witnesses isinconsequential as long as the principle of reasonable doubt remains the central consideration. A verdict of guilty must not be based on achoice between the accused’s evidence and the Crown’s evidence”. [24] Mr. Bako testified that when the gun accidentally fired during his struggle with Amber Peequaquat he exited the house, ran tohis vehicle and during this entire time remained in possession of the gun.

He testified he fired the gun three times, once when the gundischarged in his struggle with Amber Peequaquat and twice into the air when he reached the vehicle. [25] The forensic evidence at trial set out that there were fourteen .32 caliber cartridges found at the scene.

The Forensic Science andIdentification Services Laboratory Report filed as Exhibit P-9 concluded that all fourteen .32 caliber cartridges were fired from Mr.Bako’s handgun. [26] There were three .32 caliber cartridges found inside the home, specifically in the living room area, two just inside the front westfacing door and one approximately 2.75 metres directly south of the front door along the west wall as well as one casing immediatelyoutside the front door slightly to the north of the front door.

[ 27 ] There were two .32 caliber casings found approximately 14 metres west of the front door of the house and one .32 caliber casing found approximately 5 1/2 metres south west of the front door. Lastly, there were seven .32 caliber casings found scattered outside of the house approximately 3-8 meters from the southeast corner of the home. [ 28 ] In addition to these cartridges, Sergeant Goodwin of the RCMP Forensic Identification

Section testified there were two bullet holes made by a small caliber weapon in the south wall of the living room. Sergeant Goodwin testified that based on the trajectory of the shots, the bullets travelled from the front door, through the south wall of the living room, through the basement door and through the east side of the exterior south wall of the house. Sergeant Goodwin testified these bullets could have been fired five feet inside the door or fifteen feet outside the door. [ 29 ] I reject Mr.

Bako’s evidence that he only fired the handgun three times based on the forensic evidence at the scene, specifically the casings found inside the home and immediately outside the front door and the front window as well as the bullet holes in the living room wall. The forensic evidence of the bullet holes in the living room further corroborates the testimony of Lindsay Ahpay who testified that after Amber Peequaquat was shot, Mr. Bako fired two shots in the house. [ 30 ] While the court found Mr.

Ahpay’s testimony to be disjointed and at times evasive and self-serving, specifically in his denial that there were no other guns in the house despite evidence to the contrary re: gunshot damage to Natasha Ahpay’s vehicle and shotgun shells and .22 casings outside the home. I accept his evidence that after Amber Peequaquat was shot, he heard two other shots in the house.

His evidence in this regard was not shaken on cross examination. [ 31 ] While there is reasonable doubt as to who was shooting the firearm where most of the casings at the southeast corner of the yard were situated based on the testimony at trial that earlier in the day other people were firing the handgun, however the court is convinced beyond a reasonable doubt that Mr. Bako fired the handgun from the front door of the home which resulted in the bullet holes in the living room as well as the casings in the interior of the home, just outside the front door of the house and in the front yard. [ 32 ] Ms.

Peequaquat testified that she was standing approximately four feet from Mr. Bako when he fired the gun through the screen door. I accept her evidence in this regard. I found Amber Peequaquat did not embellish her testimony nor did she demonstrate any ill will toward the accused on the stand. It was obvious during her testimony that she continues to suffer emotional effects from the shooting, but I found her testimony to be forthright and credible. [ 33 ] In accepting the evidence of Ms. Peequaquat that Mr. Bako fired the gun through the screen door, I am cognizant of the argument of Mr.

Bako’s counsel, specifically, Mr. Parlee argues that the physical evidence of the screen door does not corroborate either Amber Peequaquat’s evidence or the evidence of Lindsay Aphay that Mr. Bako shot through the screen door at Amber Peequaquat. Mr. Parlee argues if the gun was fired through the screen of the outside door, there would be a hole in the screen and there was no evidence of a hole in the screen and accordingly it is difficult to reconcile the evidence of firing through a screen with no evidence of damage to the screen. Mr.

Parlee further argues that the testimony of Constable Vollman that there was a bullet mark in the door frame of the door was not corroborated by Sergeant Goodwin, the forensic investigator who was at the scene for approximately nine hours. [ 34 ] While the court acknowledges there was no testimony regarding screen damage or corroborating evidence of a bullet mark in the door frame from the testimony of Sergeant Goodwin, the court submits there was testimony at trial of the damage to the screen in the testimony of Amber Peequaquat at lines 31-39 at age 34 of the transcript, where she stated during cross examination: Q: Right, okay.

Did you say there’s two doors in that doorway? A. Yes. There’s an outside one and then there’s an inside one. Q. Right, okay. Is there a screen in one of them? A. Yes, there was a screen and I had to take it off. Q. Which---which door is the screen in? A. On the outside one. Q. Okay. A. And the window was open, so that’s why they had to take the screen because that’s where the bullet went through. [ 35 ] In addition, the Court finds the forensic evidence of the cartridge casing in close proximity outside the front door corroborates the

testimony of Amber Peequaquat which I accept that Mr. Bako was outside of the home when the gun was fired at her. [ 36 ] The Crown argues the entry and exit wounds sustained by Ms. Peequaquat are consistent with being shot directly in front of the shooter and that Mr. Bako’s evidence is not credible, in that a struggle would have required the firearm to be turned completely inward on Ms. Peequaquat during the struggle in order to correspond with the location of the wound.

While the Court agrees sustaining this injury in this manner may not be plausible, there was no evidence at trial that it was implausible and I do not find this argument the compelling reason for rejecting the evidence of Mr. Bako, rather I reject Mr. Bako’s evidence of the shooting based on the forensic evidence at the scene and the testimony of Amber Peequaquat which I accept. [ 37 ] In accepting the evidence that Mr. Bako shot Ms. Peequaquat while standing at the front door of House 116, I turn to counts 1, 6, 7 & 8 of the information Count 1 – Attempted Murder (s.239) [ 38 ]

Section 24 of the Criminal Code states: 24(1) Everyone who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out his intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence. (2) the question whether an action or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law. [ 39 ] Section 239(1) (a)(

i) of the Criminal Code states; Every person who attempts by any means to commit murder is guilty of an indictable offence and liable (

a) If a restricted firearm or prohibited firearm is used in the commission of the offence, or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of (

i) In the case of a first offence, five years. [40] Section 222(4) states Culpable homicide is murder or manslaughter or infanticide. [41]

Section 229(

a) states: Culpable homicide as 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. [42] In order to prove the offence of attempted murder, the Crown’s onus was set out in R v Wolfe, [2009] SJ No 672, (QB) by Mr.

Justice Schiebel at paragraph 66 : “In the case of attempted murder, the onus is on the Crown to prove to my satisfaction beyond a reasonable doubt that the accused had the intent to commit murder and that the accused did certain acts for the purpose of carrying out his intention to commit murder and also that the accused’s conduct was an actual attempt to commit murder and not merely preparation to do it.” [43] The British Columbia Court of Appeal stated at paragraph 6 in the decision of R v Arrieta, 2012 BCCA 402 : “By virtue of

section 229 (a)(ii) of the Criminal Code , a conviction for murder does not require proof of intention to kill but only the intention to cause bodily harm with the knowledge it is likely to cause death, and recklessness whether death ensues. Attempted murder, however, requires proof of the intent to kill”

[44] In this case, the Crown has proven beyond a reasonable doubt that Mr. Bako discharged his firearm into House 116 and that Amber Peequaquat was shot, however has the Crown proven beyond a reasonable doubt that Mr. Bako specifically intended to kill Amber Peequaquat? [45] In determining specific intent, Mr. Justice Danyliuk in R v Brandon Kurt Carles , 2012 SKQB 475 at paragraphs 51 & 52 : [51] Counsel agree on the definition of the required intent.

They differ as to whether it can be found or inferred in the current circumstances. [52] Determination of intent cannot always be the subject of direct evidence, as it is comprised of a state of mind. Sometimes intention must be inferred from conduct and context. [46] In R v Kay 2015 SKQB 109 , Mr. Justice Zarzeczny in discussing the inference to be drawn from the evidence to support the conclusion that the accused had a specific intention to kill his victim stated at paragraph 29: ….

Nevertheless as the McArthur case illustrates, where the circumstances are appropriate for doing so, a trial judge may draw a reasonable inference from the facts and circumstances of a case that an accused had the specific intent to kill his victim. “ [47] Justice Zarzeczny continued stating: “Both B.C and Ontario Courts of Appeal, in these cases, in upholding convictions for attempted murder, endorsed the proposition that in appropriate cases and circumstances, absent any explanation or evidence to the contrary, an inference could be drawn that an accused had the specific intent to kill in circumstances where the accused shoots his victim in a vital portion of his body. [48] The Crown’s position is that nature of the Ms.

Peequaquat’s injury is evidence of Mr. Bako’s intention to kill her; specifically that she was shot in the torso which the Crown states is the location of one’s vital anatomy. [49] Mr. Justice Danyliuk in R v Brandon Kurt Carles , supra at paragraph 53 states: [53] …..Consideration of the wounds or injuries themselves may point to, or away from, intent. The Crown cited the case of R. v. Rajanayagam, [2001] O.J. No. 393 (QL) (Ont. Sup. Ct.) . There a victim was beaten with a bat and shot three times in the lower legs. Charges of attempted murder and aggravated assault were brought.

The key question was that of intent. There was no evidence any of the injuries were life-threatening. After citing Ancio the court said as follows: 16 The mere fact that A shoots and wounds V is not, alone, any evidence of intent to kill. For attempted murder there must be some evidence from which the trier of fact may infer that the shooter intended something more than the actual or natural consequence of his wounding act. 17 Some gunshot wounds, by themselves alone, provide evidence of intent to kill. Other gunshot wounds do not .

If A empties into V's chest a .40 calibre semi automatic Glock, loaded with expanding dum dum bullets, the shots in themselves provide some evidence of intent to kill. If A shoots V in the hand once with a .22 calibre pistol, the shot in itself provides no evidence of intent to kill. 18 It is impossible to draw a bright line in every case between gunshots that provide evidence of intent to kill and gunshots that do not.

It is entirely a question of degree having regard to all the circumstances including the firearm, the range, the calibre, the load, the projectile, the number of shots, the aim, and the vital or non-vital portion of the anatomy struck by the bullet. 20 ... If the gunshot wound is to a vital part of the anatomy, a common sense inference arises that the shooter intended to kill.

Thus gunshot wounds to the neck or the chest or the head were held ... to support the inference of intent to kill. [50] In R v Monroe , [1999] SJ No 428 (QB) , the court found the accused intended to murder the victim based on eyewitness evidence that the accused pointed and shot only at the victim and did so six to eight times, the casings were fired from the gun found in the possession of the accused and the accused had made earlier statements that the feud with the victim would only end when one was done. [51] In R v Kay , supra , the court concluded Mr.

Kay intended to kill his victim based on the circumstances that he approached his victim and shot him with a 12 gauge shotgun in his upper left-side chest near his heart and lungs from a distance of four to seven feet and then fled the scene leaving the victim alone and without calling medical assistance.

[52] In R v McArthur , 2013 SKCA 139 , the trial judge convicted the accused of attempted murder, finding that the circumstances of the accused standing up, pointing a sawed off shotgun at the victim and shooting the victim at point blank range in the chest.

At trial the judge stated “It defies logic that by shooting the victim so close to the heart that the accused could have meant anything other than to kill the victim”. [53] On appeal, the appellant in McArthur , supra argued that the trial judge did not have sufficient evidence at trial to establish the specific intent to murder relying only on the wound which resulted from a point blank shot and the actions taken by the accused after the shooting, specifically, wrapping the victim in a sheet and abandoning him in a bathtub.

The appellant further argued that the trial judge failed to consider: there were no evidence the victim was threatened with being killed or that any one was angry as well the victim’s own testimony that he was to receive a beating and further there was no medical evidence to substantiate the wound was potentially lethal or would likely lead to imminent death. The Court of Appeal in dismissing the appeal stated at paragraph 10: ….In this case, the appellant stood up, pulled out a deadly sawed-off rifle and, at close range, shot the victim in the chest near his vital organs.

In our view, it was clearly a reasonable inference for the trial judge to draw, in the circumstances, that the appellant intended to kill. [54] The Court of Appeal further found the post-offence actions of Mr. MacArthur supported the inference that he specifically intended to kill his victim. [55] Ms. Peequaquat was shot at close range in her torso region. Constable Vollman who arrived at the scene shortly after the shooting and attended to Ms.

Peequaquat testified the entry wound was situated in her mid-torso region in the ribcage area and the exit wound was situated a bit lower than the entry wound and inwards toward her spine. While Ms. Peequaquat’s wound can be distinguished from the wounds sustained by the victims in the McArthur, Bains, Kay and Monroe decisions, specifically that it was not a gunshot to the chest or heart region, certainly a gunshot to the mid torso region cannot be placed in the same category as a gunshot wound to the hand or foot.

While a reasonable inference of an intention to kill may be found based on the location of this injury in certain cases, in reviewing all of the circumstances in this case in addition to the location of the wound, the court is unable to make this inference. [56] In this circumstance, while there was evidence Mr. Bako was angry about the truck, there was no indication he was threatening to kill Ms. Peequaquat or for that matter anyone in the room. There was evidence by Ms. Peequaquat that a few minutes prior to the shooting Mr. Bako had tried to pull out his gun but that upon she and Mr.

Ahay restraining him from doing so, Mr. Bako simply left the firearm in his waistband. Based on Ms. Peequaquat’s testimony, Mr. Bako did not pull out the firearm while she was backing him toward or out of the screen door. Ms. Peequaquat testified she “kicked” Mr.

Bako out of the house and when he was outside the screen door, she returned to the kitchen and was then told by either Lindsay Ahpay or Natasha Aphay to lock the inside door and she testified at Page 24 – Line 20 -23 that when she returned to close the inside door – “and I seen Simon standing at the steps, top of the steps, holding out a gun, and then that’s when he shot in---he shot in the house and the first bullet him (sic) me and then---“. In addition, Ms. Peequaquat was shot once while two other shots were fired into the living room. [57] Based on her testimony as well as Mr.

Ahpay’s, the living room was dark and it was an afterthought that she returned to close the front inside door and upon doing so she witnessed Mr. Bako already standing there holding out his gun preparing to shoot into the house. On the basis of this testimony, and despite the seriousness of the injury sustained by Ms. Peequaquat, it is also reasonable to infer that Mr. Bako’s only intention was to fire his handgun into the home and not to kill Ms.

Peequaquat. [58] In considering the totality of the evidence, I am unable to find beyond a reasonable doubt that the only inference to be made in the circumstances is that Mr. Bako specifically intended to kill Ms. Peequaquat and accordingly, I find Mr. Bako not guilty of Count 1. Count 6: Section 244(2) (a) - Discharging a Firearm with Intent [59]

Section 244 states:

(1) Every person commits an offence who discharges a firearm at a person with intent to wound, maim or disfigure, to endanger the life of or to prevent the arrest or detention of any person – whether or not that person is the one at whom the firearm is discharged.

[60] The offence of section 244(2)(

a) requires the Crown to prove beyond a reasonable doubt that the Mr. Bako discharged a restricted or prohibited firearm with one of the intentions specified in section (1) – to wound, maim or disfigure a person, endanger the life of or prevent the arrest or detention of a person. [61] As set out in R v L(R) 2011 SKPC 96 by Judge Morgan at paragraph78: In general criminal law principles, intent can sometimes be established through recklessness or willful blindness. However, under this charge, it is necessary that the Crown establish that R.L. had the specific intent to wound. …A specific intent offence….

The question is whether or not he did so “with the intent to wound Gregory Toogood. The law applicable to this question is nicely summarized in the case of R v. Foti, 2002 MBCA 122 , 169 C.C.C. (3d) 57, 7 C.R. (6 th ) 161 (Man. C.A.) at paragraphs 24 through 27: 24. The mens rea in this offence, as opposed to that of aggravated assault is one of specific intent: ….. It is not sufficient to have an intention to threaten, scare or frighten someone, nor is it sufficient to objectively foresee that there is a risk of harm. According to the case law, the accused must have an actual intention to wound…. 25.

In determining whether an accused has formed the requisite intention to wound, the trier of fact will often have to infer such an intention from circumstantial evidence. In doing so, it is acceptable for the trier of fact to consider that a person generally intends the natural consequences of his actions: 26. Having said that, however, the evidence against the accused must not only be consistent with the fact that the accused shot at the victim with the intent to wound, but must also be inconsistent with any other rational conclusion.

If the evidence against the accused is equally consistent with the inference that the accused fired the shot not at the victim, but into the ground or the air in an effort scare the victim, the accused should get the benefit of the doubt: …. 27. Therefore, the elements necessary to prove a charge of discharging a firearm with intent to wound are as follows: 1. proof that the accused actually intended to wound the complainant and not scare or threaten him; and 2. a wound resulting to the complainant. [62] While the Court finds the Crown has proven beyond a reasonable doubt Mr.

Bako discharged a prohibited firearm, based on the analysis set out in Count 1, the Court is unable to conclude beyond a reasonable doubt that the only inference to be made in the circumstances is that Mr. Bako discharged the handgun with the intent to wound Amber Peequaquat and accordingly, I find Mr. Bako not guilty of Count 6. Count 7 -

Section 244.2 – Reckless Discharge of a Firearm [63]

Section 244.2(1) states: Every person commits an offence (

a) who intentionally discharges a firearm into or at a place, knowing that or being reckless as to whether another person is present in the place; or (

b) who intentionally discharges a firearm while being reckless as to the life or safety of another person. [64] While the offence of

section 244 as set out in Count 6 requires the Crown to prove a person discharged a firearm with the intent as specified in that section,

section 244.2 requires the Crown to prove that the accused intentionally discharged a firearm into a place either knowing that another person was present or was reckless as to whether a person was present or intentionally discharged a firearm while being reckless as to the life or safety of another person. [65] Based on the forensic evidence and the testimony of Mr. Ahpay and Ms. Peequaquat which has earlier been accepted by the Court, there is no doubt that Mr. Bako intentionally fired his handgun more than once into the living room of House 116 and that Mr.

Bako was aware that there were other people in the home at the time of discharging the firearm. [66] The Crown has proven this offence beyond a reasonable doubt and accordingly I find Mr. Bako guilty of Count 7.

Count 8

Section 87 – Pointing a Firearm [67]

Section 87 states Every person commits an offence who, without lawful excuse, points a firearm at another person, whether the firearm is loaded orunloaded.

Section 87 is a general intent offence. The

section requires the gun to be pointed at a person in a general way. (See R v. Minish, 1984S.J. No. 469. The wording does not state the gun has to be aimed at a person but more in a general sense pointed at a person. Based on the analysis set out in the earlier counts, the Court finds this offence has not been proven beyond a reasonable doubt and Mr.Bako is found not guilty of count 8. In respect to the remaining counts: Count 9

Section 88 – Possession of a Weapon for a Dangerous Purpose [68]

Section 88 states

(1) Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or anyammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence. [69]

Section 88 is a specific intent offence. In R v Kerr, 2004 SCC 44 , [2004] 2 SCR 371, the Court held the Crown toobtain a conviction must establish, first, that the accused possessed a weapon and second, that the purpose of the possession was one thatwas dangerous to the public peace.

The majority held the proper test to be applied in respect to the second requirement was a subjective-objective hybrid, specifically that the first there must be a subjective determination – what was the accused purpose and then anobjective determination – whether that purpose was, in all the circumstances, dangerous to the public peace. [70] As stated in R v MacLeod 2013 SKPC 67 at paragraph 31, “Regardless of the approach adopted (referring to Kerr)(my emphasis), both approaches require the court to consider all of thecircumstance surrounding the matter to determine the purpose the accused intended and whether that purpose was dangerous to thepublic peace. [71] In this case, the Crown has proven beyond a reasonable doubt that Mr.

Bako was in possession of the firearm on May 24, 2015. Further, in applying Kerr, supra, it is clear that Mr. Bako’s actions with the firearm were “dangerous to the public peace”. [72] I accept the evidence of Ms. Peequaquat that after Mr. Bako entered the home shortly before she was shot, an argument occurredand he became angry and then attempted to pull out his handgun. Mr.

Bako entered a home with a handgun and his actions of attemptingto brandish a weapon in a home with a group of people demonstrates an intent to intimidate or threaten the occupants which is indicativeof a purpose that was certainly dangerous to the public peace. Accordingly I find Mr. Bako guilty of count 9.

Count 2- Section 86(1) – Careless Use of a Firearm [73] Section 86(1) states: Every person commits an offence who, without lawful excuse, uses, carries, handles, ships, transports or stores a firearm, a prohibitedweapon, a restricted weapon, a prohibited device or any ammunition or prohibited ammunition in a careless manner or withoutreasonable precautions for the safety of other persons. [74] In R v Gosset, (SCC), [1993] 3 SCR 76, the Court held that the actus reus of the offence set out in section 86 (1)requires that the proof of conduct, the negligent act of the accused, amounts to a marked departure from the standards of a reasonableperson in all the circumstances of the case.

The mens rea is an objective foresight, so whether a reasonable prudent person could haveforeseen the risk of harm in the same circumstance of the accused.

[75] Based on the testimony of the Mr. Bako of transporting the gun in the waistband of his pants while travelling from Saskatoon toYellowQuill, placing the gun in his waistband without determining whether the gun was loaded, entering an occupied house with thefirearm without determining if the gun was loaded and the accepted evidence of the court that Mr.

Bako attempted to pull out the firearmin an occupied home and eventually discharged the firearm in the home are all acts which individually and collectively demonstrate amarked departure from the standards an objective person would have in the circumstances and certainly a reasonable, prudent personcould have foreseen the harm that could arise in these circumstances. [76] Accordingly, the Court finds the Crown has proven the elements of this offence beyond a reasonable doubt and Mr. Bako isguilty of Count 2. Count 5 -

Section 96 – Possession of a Weapon Obtained by Commission of an Offence [77] Section 96 (1) states Subject to subsection (3), every person commits an offence who possesses a firearm, a prohibited weapon, a restricted weapon, aprohibited device or any prohibited ammunition that the person knows was obtained by the commission in Canada of an offence or by anact or omission anywhere that, if it had occurred in Canada, would have constituted an offence. [78] As stated in R v Jean, 2016 ONCA 137, with respect to

section 96 of the Criminal Code, the Crown must prove beyond areasonable doubt that Mr. Bako was in possession of a firearm or prohibited ammunition on May 24, 2015, that the firearm or prohibitedammunition was obtained by crime and that Mr. Bako knew that the firearm or prohibited ammunition had been obtained by crime. Inorder to determine if Mr. Bako had knowledge, the Crown must prove he had actual knowledge that the firearm or prohibitedammunition were acquired directly or indirectly by crime or in the alternative that Mr.

Bako was aware of the need to make an inquiryabout the origins of the firearm or prohibited ammunition but “deliberately failed to do so because he did not want to know the truth”. [79] The Court finds the Crown has met its burden of proof in establishing Mr. Bako was in possession (as defined in section 4(3) ofthe Criminal Code) of a firearm on May 24, 2015. Exhibit P-6, the FRT report filed by consent proves the firearm in Mr.

Bako’spossession was prohibited pursuant to section 84(1) of the Criminal Code. [80] However, there is no evidence before the court as to how the handgun was obtained and the fact that the hand gun is a prohibitedfirearm pursuant to section 84(1) (

a) of the Code is not evidence that it was obtained by the commission of a crime either in Canada oranywhere that, if it had occurred in Canada, would have constituted an offence. [81] As stated in R v Jean, supra at paragraph 14 and 15: We adopt the analysis of Then J. in R v. Khan (2007) (ON SC), 217 C.C.C. (3d) 209 (Ont. S.C.J.) where, at paragraph26, he said: It is not sufficient that the accused have knowledge that his possession is illegal.

What is required to establish knowledge on the part ofthe accused that he has obtained possession of the firearm by the commission of an offence is either that the accused himself commit anoffence to obtain the firearm …. For example ….. by stealing. Alternatively, it will be sufficient that the accused obtain possession fromanother knowing that that person obtained the firearm by the commission of an offence. For example, the accused purchases the firearmfrom a person he knows stole the firearm. The key word in s. 96 is “obtained”. The accused must know that the firearm was obtained as a result of a crime.

As this court held in R.v Mohamed 2014 ONCA 103, [2014] O.J. No. 574 (Ont. C.A.) at para. 1, that an accused committed any number of offences by beingin possession of the firearm does not mean it was “obtained” by the commission of an offence. [82] The Court finds there was no evidence that the firearm or the prohibited ammunition was obtained by crime and accordingly, Mr.Bako is found not guilty on Count 3. [83] In

summary, the following verdicts are entered on the Information: Count 1: Did attempt to murder Amber Peequaquat while using a restricted firearm by discharging the firearm at the said AmberPeequaquat contrary to section 239(1)(a)(

i) of the Criminal Code:

NOT GUILTY Count 2: Did, without lawful excuse, use a firearm, to wit a hand gun, in a careless manner contrary to section 86(1) of the Criminal Code ; GUILTY Count 3: Did have in his possession a restricted weapon to wit a black semi-automatic restricted pistol without being the holder of a licence under which he may possess it contrary to section 91(3) of the Criminal Code ; GUILTY Count 4: Did possess a firearm together with readily accessible ammunition capable of being discharged in the said firearm and was not the holder of an authorization or licence under which he may possess the said firearm contrary to section 95(2) of the Criminal Code ; GUILTY Count 5: Did have in his possession a firearm to wit a black semi-automatic restricted pistol knowing that it was obtained by the commission in Canada of an offence contrary to section 96(2) of the Criminal Code ; NOT GUILTY Count 6: With intent to wound Amber Peequaquat did discharge a firearm to wit a black semi-automatic restricted pistol at Amber Peequaquat contrary to section 244(2) (

a) of the Criminal Code ; NOT GUILTY Count 7: Did intentionally discharge a firearm at a place, to with House 116 on the Yellow Quill First Nation, knowing that or being reckless as to whether a person was in the place, contrary to

section 244.2(3) of the Criminal Code ; GUILTY Count 8: Did, without lawful excuse, point a firearm to wit a black semi-automatic restricted pistol at Amber Peequaquat contrary to

section 87 of the Criminal Code ; NOT GUILTY Count 9: Did have in his possession a weapon, to wit a black semi-automatic restricted pistol for a purpose dangerous to the public peace contrary to section 88(2) of the Criminal Code ; GUILTY Count 10: Did, without lawful excuse, point a firearm to wit a black semi-automatic restricted pistol at Lindsay Ahpay contrary to

section 87 of the Criminal Code ; STAY OF PROCEEDINGS Count 11: Did, use a firearm to wit a black semi-automatic restricted pistol while committing the indictable offence of attempted murder while using certain firearms contrary to section 85(1) (

a) of the Criminal Code . STAY OF PROCEEDINGS Count 12: Did, while bound by a probation order made by the Saskatoon Provincial court on the 18 th day of July A.D. 2013 fail without reasonable excuse to comply with such order, to wit, Keep the peace and be of good behavior contrary to

section 733.1(1) of the Criminal Code . GUILTY [84] In respect to the decision of the Court on Information 24516233 that Mr. Bako was not guilty of the offence as set out in Count 1 of the Information the Court must further consider whether Mr. Bako is guilty of the lesser included offence as set out in

section 269 of the Criminal Code . [85]

Section 269 of the Criminal Code states: Everyone who unlawfully causes bodily harm to any person is guilty of (

a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or (

b) An offence punishable on

summary conviction and liable to imprisonment for a term not exceeding eighteen months.

[86] Bodily harm is defined in

Section 2 of the Criminal Code as follows: “Means any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient ortrifling in nature” [87] In R v Bidesi, 2015 BCSC 1398, the court considered whether the offence of attempting to unlawfully cause bodily harm (s. 269)was a lesser included offence of attempted murder and first determined at paragraph 61: Section 662(1) of the Code permits acquittal of the offence charged with a conviction for an included offence in appropriatecircumstances.

This falls to be determined by consideration of the statutory definition of the full offence and the language of theindictment. [88] In R v Pelletier, 2012 ONCA 566, the court stated at paragraphs 110 and 111: Attempted murder is one of several offences in the Criminal Code that attracts a minimum punishment when firearms are used in itscommission.

The inclusion of the words “while using a firearm” in a count that charges attempted murder puts an accused on noticethat, if a conviction of attempted murder is entered, he or she will be subject to a minimum punishment…The addition of the phrase“while using a firearm” does not amount to a particularization of the means by which the offence was committed, thus cannot serve toexpand the offences included in the description of the enactment creating the principal offence.

Counts of attempted murder that do notspecify the means used to commit the offence and do not contain other pat words of description include the offence of unlawfullyattempting to cause bodily harm. [89] The Court in Bidesi cited with approval at paragraph 65 the Quebec Court of Appeal in R v Colburne, (1991) (QC CA), 66 CCC (3d) 235 stating …the court agreed that attempting to unlawfully cause bodily harm was an included offence in attempted murder.

Proulx, J.A. wentfurther and held that such an offence could be made out even though bodily harm was in fact caused. [90] I concur with the analysis set out in Bidesi and Pelletier that in this circumstance, the offence of attempting to unlawfully causebodily harm as set out in

section 269 is a lesser included offence of the offence of attempted murder. [91] It must then be determined whether in this case, the Crown has proven beyond a reasonable doubt the elements of the offence ofsection 269. [92] In the R v Desousa, (SCC), [1992] 2 SCR 944 (SCC), Mr. Justice Sopinka states at pg. 956, To be brought within the ambit of s. 269, an accused must have committed an underlying unlawful offence (otherwise referred to as thepredicate offence) and have caused bodily harm to another person as a result of committing that underlying offence.

For liability to beimposed for unlawfully causing bodily harm, the harm caused must have sufficient causal connection to the underlying offencecommitted. [93] In discussing the mens rea requirement for the offence, the court continues at page 957: To be convicted under s. 269, the prosecution must first satisfy the mental element requirement of the underlying offence…theunderlying offence must be valid in law on its own before it can be used to support a charge under s. 269…In addition to the mentalelement required by the underlying offence, the wording of s. 269, and particularly the case law interpreting the term “unlawfully”imports an additional aspect to the mental element of s. 269. [94] The court continued at page 961 the most principled approach to the meaning of “unlawful” in the context of s. 269 is to require that the unlawful act be at leastobjectively dangerous… Thus the test is one of objective foresight of bodily harm for all underlying offences.

The act must be bothunlawful, as described above, and one that is likely to subject another person to danger of harm or injury.

[95] Therefore in order for Mr. Bako to be convicted of the offence as set out in

section 269 , it must be proven beyond a reasonable doubt that he committed an unlawful act and that the underlying unlawful act was one in which a reasonable person would have foreseen would subject a person to a risk of bodily harm or injury. [96] The evidence at trial established Mr. Bako intentionally fired his handgun into the living room of House 116 on the Yellow Quill First Nation and was reckless whether another person was in place and accordingly, the unlawful act committed by Mr. Bako has been proven beyond a reasonable doubt by the Crown as per my earlier analysis. The second step in order to support a conviction pursuant to

section 269 of the Criminal Code is to determine whether this underlying unlawful act was one in which a reasonable person would have foreseen would result in a risk of bodily harm or injury to another person. [97] The evidence by both the Crown witnesses and Mr. Bako at trial was that on the evening of May 24, 2015 when the parties returned to House 116, there were several people inside the residence, primarily in the kitchen area.

The photographs taken by the forensic investigation unit and filed as an exhibit at trial indicates the house was a bungalow style home with the front door opening into an area containing the living room and the kitchen area. The forensic evidence and the evidence of Amber Peequaquat and Lindsay Ahpay of Mr. Bako firing the handgun into the home from the front door of the house which was accepted by the court, both support the finding that the gun was fired into the residence from the front door.

Based on this evidence and the evidence that there were several people inside the residence, it is the finding of this court that the second step in the

section 269 analysis has been fulfilled whereby the evidence supports that a reasonable person would have foreseen that there was a risk of bodily harm or injury to a person if the gun was intentionally discharged into the residence. [98] As established in R v Colburne , supra , even though Amber Peequaquat did sustain bodily injury due to the gunshot, the offence of attempting to unlawfully cause bodily harm is still made out by the Crown and accordingly, I find Mr. Bako guilty of the lesser included offence of attempting to unlawfully causing bodily harm contrary to

section 269 of the Criminal Code . ________________________ M. Marquette, J.