R v Kingatook, 2021 NUCA 9

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Kingatook, 2021 NUCA 9 Date: 20210531 Docket: 25-20-008-CAP Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - Abel Kingatook Appellant _______________________________________________________ The Court: The Honourable Madam Justice Shannon Smallwood The Honourable Madam Justice Jolaine Antonio The Honourable Mr. Justice Kevin Feehan _______________________________________________________ Memorandum of Judgment

Appeal from the Conviction by The Honourable Madam Justice S. Cooper Sitting with a Jury Dated the 30th day of October, 2019 ( Docket: 25-18-28) _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: I. Overview [ 1 ] Abel Kingatook appeals his conviction by judge and jury on October 30, 2019, for the second degree murder of his common law spouse, Erin Qayutunuaq, on June 6, 2018, in the Hamlet of Taloyoak, Nunavut, contrary to s 229(

a) of the Criminal Code , RSC 1985, c C-46 . He says he did not have the requisite intent for murder and should have been convicted of manslaughter. Mr Kingatook seeks a new trial. [ 2 ] For the reasons below, the appeal is dismissed. II. Facts [ 3 ] On June 6, 2018, between 2:00 and 3:00 pm, Ms Qayutunuaq returned to Taloyoak from Edmonton carrying two 60-ounce bottles, one 26-ounce bottle, and two “mickeys” of hard liquor. She went directly to her mother’s house where the family, including Mr Kingatook, had gathered.

By 4:00 pm, her mother noted that Ms Qayutunuaq had been drinking from the liquor she had brought home, although she did not think her daughter was drunk. She did not see Mr Kingatook drink or notice anything about him that made her think he was drinking. [ 4 ] At approximately 6:00 or 7:00 pm, the couple left to return to their home, taking most of the liquor with them. [ 5 ] A short time later, Mr Kingatook arrived at his mother’s home alone and disclosed that Ms Qayutunuaq was dead. His mother’s evidence was that he was intoxicated.

She said he was “high but not too high”, seven out of ten on an impairment scale. [ 6 ] Mr Kingatook said to his mother: “... I did it .... she’s gone ... she’s just gone.” His mother testified at trial: “[h]e said he strangled her.” Mr Kingatook told his mother he had tried to resuscitate Ms Qayutunuaq for two hours but was unsuccessful.

He said he “couldn’t get her back.” [ 7 ] Mr Kingatook told his mother that he gave Ms Qayutunuaq “hickeys” on her neck to cover up his fingerprints, and pressed her handprint onto a liquor bottle which was nearby. [ 8 ] Despite his mother’s advice to do so, Mr Kingatook did not call the police. On June 8, 2018, Mr Kingatook’s mother called the mental health consultant, who contacted police. When police attended on Mr Kingatook, he said: “I didn't know I killed her” or “I didn’t mean to kill her.” [ 9 ] At the couple’s house, police found Ms Qayutunuaq lying on her back on a mattress in the living room.

She had a bottle cap in her hand, and there was an empty liquor bottle beside her. There were multiple liquor bottles in the kitchen and living area. III. Grounds of Appeal [ 10 ] Mr Kingatook says the trial judge erred in: (

a) her instructions to the jury on the post-incident conduct evidence in a way that removed relevant evidence from their consideration on the issue of intent; and (

b) directing the jury to find he had strangled Ms Qayutunuaq and the strangulation implied the state of mind

required for murder. IV. Standard of Review [11] A jury charge is reviewed on a functional and contextual approach: alleged errors are examined in the context of the entirecharge and the trial as a whole: R v Jaw, 2009 SCC 42, para 32, [2009] 3 SCR 26; R v Daley, 2007 SCC 53, para 31, [2007] 3 SCR 523.An accused is entitled to a properly, not perfectly, instructed jury: R v Jacquard, (SCC), [1997] 1 SCR 314, para 2,113 CCC (3d) 1; R v Barton, 2019 SCC 33, para 54, 376 CCC (3d) 1.

The question is whether the “appellate court is satisfied that thejurors would adequately understand the issues involved, the law relating to the charge the accused is facing, and the evidence theyshould consider in resolving the issues”: R v Cooper, (SCC), [1993] 1 SCR 146, 163, 78 CCC (3d) 289; R v Kollie,2020 ABCA 279, para 38, 391 CCC (3d) 225. [12] However, whether the trial judge has misdirected the jury or failed to provide an essential direction to the jury is a question oflaw, subject to the correctness standard: R v JOL, 2020 ABCA 73, para 14; R v Nauya, 2021 NUCA 1, para 10. V. Analysis (

a) Post-incident conduct evidence [13] The trial judge considered several examples of post-incident conduct. Mr Kingatook’s mother gave evidence that he hadattempted to revive Ms Qayutunuaq, and attempted to cover up the offence by giving her “hickeys” on her neck to cover his fingerprintsand putting her handprint on a bottle.

Mr Kingatook says the possibly exculpatory statement to his mother that he attempted to resuscitateMs Qayutunuaq should not have been treated the same as his potentially inculpatory statements that he tried to cover up the crime. [14] After counsel’s addresses to the jury, the trial judge advised counsel that her intent was to instruct the jury these commentsMr Kingatook made to his mother were “not relevant to the issue of intent because they are equally consistent with either manslaughteror murder.” As to the evidence regarding resuscitation, she said it perhaps “just shows... [Mr Kingatook’s] coming to his senses.”Defence counsel agreed with the intended instruction on post-offence conduct, saying: “I think that we are on the same page.” Later, inthe pre-charge conference, the trial judge said with respect to the resuscitation attempts: “I believe I speak to that in the post offenceconduct.” Defence counsel responded “... there wasn’t going to be an argument on that; yes, I agree.” [15] On the evidence from Mr Kingatook’s mother about the attempts at resuscitation and to cover up the cause of death, andintoxication, the trial judge then gave the following jury instructions: ... there is some evidence that you must not use to determine Abel’s state of mind at the time of Erin’s death, and that is the evidence ofwhat he did to her body following her death.

You heard evidence that Abel gave Erin hickeys on her neck to cover up the finger marks on her neck, that he put her handprint on theliquor bottle which was near her body, and that he tried to resuscitate her or revive her. This conduct may be explained as a reaction toErin’s death and it tells you nothing about whether the killing was intentional or done with the knowledge that death was likely. It tellsyou nothing about Abel’s state of mind at the time Erin died. You may … use this evidence to assist you in assessing Abel’s level of intoxication.

You may find that his conduct is consistent with thestate of mind that is able to reason and think things through. You may find that the conduct does not assist you in assessing his level ofintoxication.

It is up to you. … Ladies and gentlemen, you will have to consider any evidence that Abel was intoxicated and determine how, if at all, that impactedon his state of mind at the time of Erin’s death. [16] The trial judge’s limiting instruction on the evidence of attempts at resuscitation and concealment of the offence was that itcould not be used as direct evidence of whether the accused intended to kill, but could be used to help determine his level of intoxication,which could be a factor in assessing the formation of intent. [17] This is what defence counsel sought, and he agreed to the instruction.

It complies with the advice in R v Calnen, 2019 SCC 6,para 113, [2019] 1 SCR 301 (reasons of Martin J, dissenting in part, accepted by the majority on this point, para 2): [I]t is important for counsel and trial judges to specifically define the issue, purpose, and use for which such evidence is tendered and toarticulate the reasonable and rational inferences which might be drawn from it. This often requires counsel and the court to expressly setout the chain of reasoning that supports the relevance and materiality of such evidence for its intended use.

Evidence is to be used onlyfor the particular purpose for which it was admitted. When evidence is admissible for one purpose, but not for another, the finder of fact,whether judge or jury, needs to be mindful of and respectful of its permissible and impermissible uses. In such cases, a specificinstruction to a jury that certain evidence has a limited use or is of no probative value on a particular issue is required. See also R v Rodgerson, 2015 SCC 38, paras 27-30, [2015] 2 SCR 760. [18] Post-incident conduct evidence is “highly context and fact specific”.

It is circumstantial evidence that allows the fact finder todraw particular inferences or chains of reasoning based on a person’s words or actions. The inferences drawn “must be reasonableaccording to the measuring stick of human experience”, and will depend on the nature of the conduct, what is sought to be inferred fromthe conduct, the parties’ positions, and the totality of the evidence. It is up to the jury to determine which inferences they accept and theweight they ascribe to them: Calnen, paras 2, 106, 111-112.

[19] A “no probative value” instruction can be helpful when an accused’s post-incident conduct is equally consistent with two ormore offences, in this case second degree murder and manslaughter: R v Arcangioli, (SCC), [1994] 1 SCR 129, 145-147, 87 CCC (3d) 289; R v White, (SCC), [1998] 2 SCR 72, para 28, 125 CCC (3d) 385; Jacquard, paras 45-50. It wasopen to the trial judge to advise that Mr Kingatook’s attempts to resuscitate Ms Qayutunuaq could “be explained as a reaction to Erin’sdeath” and were equally consistent with murder or manslaughter.

We see no error in that charge on these facts in light of humanexperience, and considering the consent of counsel. [20] Mr Kingatook argues that the statements made to his mother about his post-incident conduct were hearsay and the jury wasnot cautioned that although the statements were admissible, they might be unreliable. The jury was told frequently in the charge that theywere the triers of fact and were not bound to follow any opinion the trial judge might express about factual issues, which was theirexclusive domain.

The trial judge said: “It is your opinion of the evidence that counts.” It was instructed on how it should approachcredibility and the weighing of evidence. These instructions were sufficient. Counsel never asked for a specific instruction on thereliability of the hearsay. [21] A possible admission against interest was the statement made by Mr Kingatook to police. The trial judge instructed the juryon this statement: Ladies and gentlemen, you may consider this evidence of the statement made to the police in relation to Abel’s state of mind at the timeErin died and whether he had the necessary intent for murder.

If, after considering the statement in the context of all of the evidence, youbelieve the statement or it leaves you with a reasonable doubt as to whether Abel intended to cause death or serious bodily harm that heknew was likely to cause death and was reckless as to whether or not murder ensued, you must find him not guilty of murder as theCrown will not have proven beyond a reasonable doubt the necessary intent for murder.

Even if you do not believe the statement, you must still consider the evidence that you do believe or accept and determine if the Crownhas proven the necessary intent for murder beyond a reasonable doubt. [22] Mr Kingatook’s mother commented on his emotional state in the hours and days after Ms Qayutunuaq’s death. Her evidencewas that he was pacing and crying, and he was scared. The trial judge did not discuss that in the jury charge, and Mr Kingatook agreessuch an instruction was not necessary.

In the context of the facts of this case, nothing turns on the trial judge’s silence on this evidence.She was not required to repeat the evidence in relation to each issue: Jacquard, paras 13-16. [23] From the general perspective of sensitivity to trial tactics, if counsel did not object to the proposed jury charge, and in thiscase they did not, the court can take it as an indication that no remedy is required.

See R v Clark, 2020 ABCA 356, para 40: Both appellants were represented by experienced defence counsel, neither of whom objected to or raised concerns about many of theissues now raised on appeal; those objections that were made were upheld. In an adversarial system, the primary role of defence counselis to ensure his client receives a vigorous defence and a fair trial. It is reasonable to infer that the failure to raise at trial the specificobjections now raised on appeal is that counsel did not find those parts of the jury address objectionable, either in isolation orcumulatively.

The appellants have been very clear that they do not raise incompetence of defence counsel as a ground of appeal. Whereno objection was taken by trial counsel to the jury address, nor to most of the issues raised on cross examination, nor to the jury charge,objections raised for the first time on appeal must be viewed in that light. See also R v SGT, 2010 SCC 20, paras 36, 37, [2010] 1 SCR 688; Calnen, paras 39, 40. [24] We see no error in the trial judge’s instructions to the jury with respect to Mr Kingatook’s post-incident conduct or possibleadmission against interest. (

b) Strangulation and the state of mind required for murder [25] Mr Kingatook says the trial judge was wrong in directing the jury to find he had strangled Ms Qayutunuaq and that thestrangulation implied the state of mind required for murder. [26] Mr Kingatook did admit to his mother that he strangled Ms Qayutunuaq. [27] The autopsy was performed by Dr Enrico Risso on June 12, 2018. He determined that the cause of death was strangulation,for many reasons. There were petechial or pinpoint hemorrhages over the face, on the inside of the eyelids, inside the mouth and neck,and behind the ear.

There were bruises which were round in shape, consistent with fingertips, and a curvilinear abrasion generally seen inmanual strangulation, a round curve normally associated with a fingernail abrasion.

There were hemorrhages within and between themuscles of the neck, and a fracture of the superior horn of the larynx, or voicebox, due to localized pressure in that area. [28] Dr Risso explained in detail the method of causation of those injuries, confirming that they were all consistent with manualstrangulation involving a “substantial amount of force”. [29] Mr Kingatook proposed two theories consistent with manslaughter rather than murder.

The first theory was that he and MsQayutunuaq, both intoxicated, were fighting, Mr Kingatook put a chokehold on her, they both passed out, and the pressure from thechokehold continued after they had passed out. Dr Risso said that scenario was possible but unlikely, as in his opinion the strangulationwas caused by hands and not by an arm in a chokehold. The second defence theory was that they were both intoxicated, had a fight, and“in the chaos of the fight, death ensued.” [30] In the trial judge’s charge, she said: “Dr Risso testified that Erin died from strangulation.

This is not seriously in dispute.” Shethen reviewed the reasons why Dr Risso had come to that conclusion and invited the jury to consider his evidence in the context of MrKingatook’s statement to his mother “that he choked or strangled Erin.” The trial judge said: “there is no issue with the fact that Erin wasstrangled. The issue … is whether strangulation is a method of killing someone that by its very nature shows either an intent to kill or

reckless disregard for whether or not death ensues.” [ 31 ] The trial judge put to the jury the two defence theories.

With respect to the chokehold theory she reminded the jury that Dr Risso said this scenario was possible but unlikely, and invited the jury to “[c]onsider the likelihood of both people passing out at the same time and the likelihood of a passed out person being able to continue applying pressure to the neck of someone.” [ 32 ] The trial judge also reminded the jury of the defence theory that both Mr Kingatook and Ms Qayutunuaq were highly intoxicated, had a fight, and “in the chaos of the fight, death ensued”, but that he did not intend to kill her. [ 33 ] After the jury had retired, they sent back a written question: “Can you please define murder and manslaughter to us.” [ 34 ] The trial judge and counsel agreed upon a response to that question which defence counsel called “textbook”.

Upon return of the jury to the courtroom, the trial judge read the definition of murder from s 229 of the Criminal Code , and then explained: “[t]he real difference between murder and manslaughter is the state of mind of the person who did the killing at the time of death.” [ 35 ] She said: So if you are satisfied beyond a reasonable doubt that Abel either intended to kill Erin when he was strangling her or he intended to cause her bodily harm that was likely to cause her death; he knew it was likely to cause her death and he continued anyway; if you are satisfied either one of those, then that would be murder.

If you are not satisfied beyond a reasonable doubt on either one of those states of mind, then you would find him guilty of manslaughter because you would find that he either did not intend to kill Erin nor did he intend to do an unlawful act which was likely to kill her, and he just went ahead and did it anyway, but you would find that he did intend to do an unlawful act, in this case assault, which nonetheless resulted in her death.

And please remember, when you are considering his state of mind, you may consider the evidence that you heard about intoxication and how that might have affected it. [ 36 ] There was nothing unbalanced about the trial judge’s conclusion in her instruction to the jury. It is clear that the sole issue in this trial was intent. Defence counsel asked the jury to find Mr Kingatook guilty of manslaughter. It is also clear that the issue of intent, as set out in s 229 of the Criminal Code , was explicitly left with the jury. We see no error in the trial judge’s instruction to the jury in that regard. VI.

Conclusion [ 37 ] In the context of the above facts and law, the trial judge’s charge, assessed functionally, contextually, and taken as a whole, was such that the jurors would have adequately understood the issues involved, the law relating to the charge, and the evidence to be considered in resolving the issues. [ 38 ] The appeal is dismissed. Appeal heard on May 11, 2021 Memorandum filed at Iqaluit, Nunavut this 31st day of May, 2021 Authorized to sign for: Smallwood J.A. Authorized to sign for: Antonio J.A. Feehan J.A.

Appearances: M. Bryant for the Respondent E. Tache-Green for the Appellant