R v Kattuk, 2023 NUCA 4

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Kattuk, 2023 NUCA 4 Date: 20230224 Docket: 13-22-001-CAP Registry: Iqaluit Between: His Majesty the King Respondent - and - Archie Kattuk Appellant _______________________________________________________ Memorandum of Judgment _______________________________________________________ Appeal from the Conviction by The Honourable Justice B. Tulloch Convicted on the 30th day of November, 2021 Sentenced on the 1st day of December, 2021 ( Docket: 13-17-59-1) _______________________________________________________

Memorandum of Judgment _______________________________________________________ The Court: [ 1 ] The appellant was convicted by a jury of second degree murder of Mina Kittosuk, his girlfriend. The sole issue left to the jury was whether the Crown had proved beyond a reasonable doubt the appellant had the requisite intent for murder. In considering this issue, the evidence left the jury with three choices: 1. If they believed the evidence of the appellant that the discharge of the shotgun that killed Mina was accidental, they were to find the appellant guilty of manslaughter; 2.

If the evidence of the appellant respecting accident left the jury with a reasonable doubt on whether the discharge of the shotgun that killed Mina was accidental, they were to find the appellant guilty of manslaughter; 3.

If, on the evidence the jury did accept, the Crown had proved beyond a reasonable the appellant had the requisite intent for second degree murder, only then were they to find the appellant guilty of murder. [ 2 ] The appellant now appeals his conviction on the grounds that the trial judge erred in instructing the jury on both the second and third elements of the offence of murder. [ 3 ] The appellant was sentenced to life imprisonment with a parole ineligibility period of 12 years.

He also appeals his sentence on the grounds that the trial judge failed to properly apply Gladue factors and asks this court to reduce his parole ineligibility period from 12 years to 11 years. [ 4 ] For the reasons that follow the conviction and sentence appeals are dismissed. Background [ 5 ] A review of the evidence, and the submissions of counsel to the trial judge and the jury, is required as we see this appeal as largely fact-driven. [ 6 ] The trial commenced with both the Crown and the defence providing an opening address to the jury.

The Crown submitted the jury would be able to find the appellant intended to kill Mina and that her death was not an accident. Defence counsel’s opening to the jury followed immediately. In it, he told the jury there were three possible outcomes in the case: guilty of murder, guilty of manslaughter, or not guilty. He then advised the jury that of those three outcomes, only two were reasonable: guilty of murder or guilty of manslaughter. Defence counsel submitted the Crown would not be able to prove the appellant intentionally fired the shotgun that killed Mina and that Mina’s death was an intended consequence.

Rather, the underlying unlawful acts the appellant committed, careless use of a firearm and pointing a firearm, led to Mina’s death, and not a specific intention to kill. [ 7 ] Following the jury openings, an Agreed Statement of Facts was entered as Exhibit 1. [ 8 ] The appellant admitted to the following facts [emphasis added]: 1. On August 22nd of 2017, in Sanikiluaq, Nunavut, just beside house […], Mina KITTOSUK died of a single shotgun wound to the centre of her torso. The shot was fired by Archie KATTUK. 2.

The pathologist conducting the autopsy concluded that based on his observations of the wound, the range of fire (distance between the firearm muzzle and the torso) was of 4 feet or less. 3. Immediately after shooting Mina KITTOSUK, Archie KATTUK put the shotgun under his chin and fired. He was injured, but survived. 4. Mina KITTOSUK's death was caused by the gunshot wound from the shot fired by Archie KATTUK. [ 9 ] During the trial, the jury heard that on the morning of August 22, 2017, the appellant and Mina argued at her home.

Mina accused the appellant of cheating on her, drove an ATV at him, threw rocks at him, punched him in the face and stomach, and told him to leave her home. Soon after, the appellant did leave. [ 10 ] In the early afternoon, witnesses heard yelling outside the family home of the appellant and saw the appellant pointing a shotgun at Mina’s torso while Mina was waving her hands in front of her body. Then, the witnesses heard a shot and Mina fell to the ground. [ 11 ] The Crown called a firearms expert who examined the shotgun.

The expert testified that the pressure from the finger required to pull the trigger and shoot the gun was equivalent to pulling 7.25 pounds, which was at the higher end of the normal range. [ 12 ] The appellant testified in his defence. He testified that after he left Mina’s home, he went back to his family’s home for lunch. He was mad at Mina and decided to get a gun “to scare” her after he finished eating. The appellant did not tell anyone his plan, nor did

he want anyone to know. [ 13 ] The appellant retrieved a key for the gun locker from his parents’ bedroom, went to the room with the gun locker, unlocked it, and took out a shotgun and three shells. He then loaded the magazine of the shotgun but he did not check the safety. Leaving the loaded shotgun in the room with the gun locker, he went to the living room where he called Mina and asked her to come to his house. He then retrieved the shotgun and walked outside towards Mina. Mina arrived by ATV and had her four-year old son with her.

The appellant chambered one of the shells after Mina turned off the ATV. [ 14 ] As the appellant walked towards Mina, he held the loaded shotgun at waist level, pointing it at Mina. He testified that he was angry with Mina and he brought the gun outside because he was “trying to scare, not shoot” Mina. He said when he got outside, he was yelling “hey” and asked Mina if she was going to break up with him. He described Mina as crying and that she did not touch the shotgun as her hands were up.

The appellant testified that while he was confronting Mina he heard some men yelling nearby so he looked over his shoulder and leaned back which caused a muscle contraction that caused his finger to pull the trigger. He testified that he did not pull the trigger on purpose and that he did not want to hurt Mina. [ 15 ] He described turning the gun on himself immediately after because he was “shocked, didn’t know what to do.

And it was regret.” After shooting himself, some of the appellant’s family members arrived on the scene and the appellant asked two family members to kill him. [ 16 ] The appellant also testified he was familiar with firearms as he was an experienced hunter, having hunted for more than 10 years.

He admitted he knows that one has to be very careful about the direction a firearm is pointing, he knows how to check the safety, and he knows the rule not to point a shotgun at anything you don’t intend to destroy. [ 17 ] The appellant also testified in cross examination: Q You didn't know that you were putting her life in danger, but you knew you were pointing a loaded chambered shotgun with a safety off at her; isn't that right? A Yeah. Q So you knew that her life was in danger? A Yeah. Q So you know that when you point a shotgun at somebody that you have endangered their life? A Yeah.

Q Right, because they're at risk of getting shot? A Yeah. Q Okay. And you know that a person who's shot with a shotgun is unlikely to survive? A Yeah. Q Right. So you knew that when you pointed that loaded shotgun at her, that her life was in danger? A Yeah. [ 18 ] In the pre-charge conference, defence counsel explained that the defence was one of lack of specific intent to kill. Defence counsel stated that the appellant was admitting unlawful act manslaughter, with the underlying unlawful act or predicate offence being either the act of pointing a firearm (contrary to

section 87 of the Criminal Code ) or the act of carelessly using a firearm (contrary to

section 86 of the Criminal Code): Transcript p 381/10-25. As defence counsel explained in his closing submissions: Judge him guilty of committing the crime of illegally carrying that gun, because that's what he did. Loading and carrying a gun as he didis a crime, and it would have been a crime even if it never discharged. That's why Mina's death is manslaughter, because it did discharge,and it absolutely and singularly caused her death. And Her Honour will tell you that committing an unlawful act that causes death ismanslaughter, and that's exactly what this case is. It is not murder.

It is not murder unless and until the Crown can prove, prove beyond areasonable doubt what was in Archie's head, that he had in his head a simple purpose and intention to kill Mina, and he did not. [19] Defence counsel submitted to the jury the Crown had not established the intent to kill and pointed to evidence the appellantsubmitted supported this finding.

Defence counsel put to the jury that the gun “went off” and “[t]he fact is that unintentional dischargeshappen”: Transcript pp 400 and 405. [20] The Crown submitted why the jury should find this was not an accident, but rather an intentional killing, including why theevidence did not support a finding that the appellant accidentally pulled the trigger when he turned his head. The Crown submitted that ifthe jury found the killing was not unintentional, it meant it was an intentional act. [21] The jury was charged the day after the closing addresses.

In the charge the trial judge identified the three elements the Crownmust prove beyond a reasonable doubt to establish second degree murder: (1) that the appellant caused the death of Mina; (2) that theappellant caused Mina’s death unlawfully; and (3) that the appellant had the state of mind required for murder. The trial judge thenexplained that if the Crown had only proven the first two elements, then the appellant must be found not guilty of second degree murderand guilty of manslaughter.

The trial judge explained that the first two elements were established by the Agreed Statement of Facts andthe appellant’s testimony, and therefore the jury must focus on the third element: whether the appellant had the required intent formurder. [22] The trial judge reviewed the evidence that was relevant to determine the appellant’s state of mind and included the appellant’sevidence about pulling the trigger: Mr. Kattuk's evidence is that he then heard yelling and so he looked over his shoulder, and that is when he leaned back, causing hismuscle to contract and the gun to go off.

He told the Court that he did not shoot Mina on purpose and he did not want to hurt her. [23] The trial judge then summarized the parties’ positions: The defence says that Archie Kattuk did not have the intent to kill Mina when he accidently pulled the trigger on the shotgun which firedthe bullet that killed her. Defence counsel says that he did not have the state of mind required for murder, and therefore you should find his client not guilty ofsecond degree murder but guilty of manslaughter.

Crown counsel urges you to find Archie Kattuk guilty of second degree murder because he either meant to kill Mina Kittosuk that day orhe meant to cause her bodily harm that the accused knew was likely to kill her, and he was reckless whether she died or not. [24] The jury was instructed that the issue for them was whether the appellant was guilty of unlawful act manslaughter or seconddegree murder. [25] After charging the jury, counsel was consulted on whether they had any comments.

Defence counsel commented that he wasconfused near the end of the charge respecting how the jury was to give their verdict, but any confusion was cleared up by the end of thecharge and he was satisfied that the jury understood. Neither the Crown nor defence counsel objected to any part of the charge. [26] The jury returned a verdict of guilty of second degree murder. Analysis Jury Instruction [27] The appellant argues that the jury was wrongly instructed on the issue of accident as it relates to the offence of murder, and onthe permissible use of evidence of the appellant’s post-offence conduct.

The Crown argues there is no error, and that further, not only diddefence counsel fail to object to the jury instruction, but defence counsel indicated he was satisfied with the jury instruction, andtherefore in the context of the evidence and the trial as a whole, this ground of appeal should be dismissed. [28] Whether the trial judge erred by misdirection or non-direction in the jury instruction is a question of law reviewed forcorrectness. An accused is entitled to a properly – not perfectly – instructed jury: R v Jacquard, (SCC), [1997] 1 SCR314, 113 CCC (3d) 1 at para 62.

A jury charge must be read as a whole, in the context of the trial: R v Jaw, 2009 SCC 42 at para 32. TheSupreme Court recently reiterated the governing principles in R v Goforth, 2022 SCC 25 at para 21: Trial judges are not held to a standard of perfection in crafting jury instructions. Rather, an appellate court must take a functionalapproach when reviewing a jury charge by examining the alleged errors in the context of the evidence, the entire charge, and the trial asa whole.

It is the substance of the charge – and not adherence to or departure from a prescriptive formula – that is determinative [citationsomitted].

[29] The question is whether the “appellate court is satisfied that the jurors would adequately understand the issues involved, thelaw relating to the charge the accused is facing, and the evidence they should consider in resolving the issues”: R v Cooper, (SCC), [1993] 1 SCR 146 at 163. Accident [30] The appellant submits that the trial judge erred in failing to instruct the jury on the defence of accident as it separately relatesto the actus reus and the mens rea of the offence of second degree murder.

The appellant does not resile from his admission that hecommitted an unlawful act that caused the death of Mina. Rather, the appellant argues that the charge was incorrect because the secondelement (the appellant caused Mina’s death unlawfully) was not settled. It was open to the jury to determine whether the unlawful actwas either: (1) the pointing of the firearm or careless use of a firearm, or (2) the voluntary pulling of the trigger. [31] With respect, on the facts of this case we disagree. [32] “Accident” has a specialized meanings in criminal law.

Accident may either negate the actus reus of an offence or the mensrea. [33] In R v Barton, 2019 SCC 33 at para 186 the Supreme Court explained the meaning of “accident” in the criminal law context: The way in which the term “accident” is used in everyday parlance passes over some of the nuances that characterize the use of that termin the legal context. As the authors of Manning, Mewett & Sankoff: Criminal Law explain, “[a]n accident is, in the popular and ordinarysense, a mishap or untoward event not expected or designed” (p. 653; see also E. G.

Ewaschuk, Criminal Pleadings & Practice inCanada (2nd ed. (loose-leaf)), at § 21:0010). But the term has a more specialized meaning in the criminal law context. In particular, inthis context, the term “accident” is used to signal one or both of the following: (1) that the act in question was involuntary (i.e., non-volitional), thereby negating the actus reus of the offence; or (2) that the accused did not have the requisite mens rea (see R. v.Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at para. 48; R. v. Mathisen, 2008 ONCA 747, 239 C.C.C. (3d) 63, at paras. 70 and 95; R.v.

Parris, 2013 ONCA 515, 300 C.C.C. (3d) 41, at paras. 106-8; R. v. Primeau, 2017 QCCA 1394, 41 C.R. (7th) 22, at paras. 24-25). [34] In R v Parris, 2013 ONCA 515 at paras 106-107, cited with approval in Barton at para 186, the Ontario Court of Appealprovided a helpful explanation which is of assistance on the facts of this case [emphasis added]: The criminal law uses the term "accident" to refer to two discrete sets of circumstances. The first has to do with the conduct or actus reuselement of a crime: an unintentional act, in contradistinction to an intentional act.

The second relates to the mental or fault element, themens rea of a crime. An accused says that she or he did not intend the consequences of his or her conduct, as for example, the death ofthe victim: R. v. Mathisen, 2008 ONCA 747, 239 C.C.C. (3d) 63, at para. 70. Accident in the sense of an unintended consequence, in this case at least, is nothing more than an argument that the appellant lacked themens rea for murder.

This sense of accident can be serviced by proper instructions on the mens rea for murder, rather than on someseparate basis: Mathisen, at para. 73. [35] The appellant admitted in the Agreed Statement of Facts that the gunshot caused the death of Mina.

The appellant alsoadmitted to the unlawful acts which caused the gunshot in that he testified to pointing a firearm at Mina and to careless use of a firearm.Defence counsel made the same admissions to the trial judge in the pre-charge conference respecting pointing a firearm and careless useof a firearm; and defence counsel made the same admissions to the jury by inviting them to convict the appellant of manslaughter, notmurder.

The jury charge reflected defence counsel’s position admitting the second element of the offence of second degree murder. [36] In this case, like Parris and R v Mathisen, 2008 ONCA 747, the question of “accident” was best considered in the thirdelement of second degree murder, the requisite intent. The appellant’s position was that he did not intend to pull the trigger, and for thatreason did not intend to kill Mina.

The jury was instructed to consider the only live question: whether the killing was an accident or thejury had a reasonable doubt as to accident, or whether the Crown had established the requisite intent to kill. On these facts, that was theappropriate question. Separate instructions on accident as it pertained to the actus reus or the mens rea would have complicated thecharge, confused the issues, and risked undermining the appellant’s position on culpability for manslaughter.

Therefore, the trial judgecommitted no reviewable error in failing to instruct on accident as an actus reus question. [37] Additionally, the appellant submits that the trial judge erred in her instructions on the third element of second degree murder,intent. Specifically, the appellant asserts that the trial judge was required to instruct the jury that if they did not believe the evidence ofthe appellant and rejected accident, the jury could not automatically find intent. [38] A review of this jury charge leads us to conclude there is no merit to this ground of appeal.

The jury was clearly instructedthat if they believed the evidence of the appellant that he did not have the intent to kill, or his evidence left the jury with a reasonabledoubt, they must find the appellant not guilty of murder but guilty of manslaughter. They were also instructed that if the appellant’sevidence did not leave them with a reasonable doubt on intent, they were only able to find him guilty of murder “…if the rest of theevidence that you accept proves that he is guilty beyond a reasonable doubt.” We are satisfied the jury was adequately instructed on thiselement.

Post-offence conduct [39] The appellant argues that the trial judge’s caution regarding the permissible uses of post-offence conduct was incorrect. Thetrial judge explained to the jury the permissible uses of post-offence conduct:

Post offence conduct or after the fact conduct has only an indirect bearing on the issue of the accused's guilt. You must be careful about inferring Archie Kattuk's guilt from what he did after the unlawful act because there might be other explanations for his conduct. Archie's conduct may be explained as a reaction to Mina's death, and it tells you nothing about whether the killing was intentional or done with the knowledge that death was likely.

It tells you nothing about Archie's state of mind at the time Mina died. [ 40 ] The appellant argues that the use of the term “unlawful act” was vague because it is unclear whether the trial judge was referring to the underlying predicate offence or the act of intentionally pulling the trigger. The appellant also argues that the post-offence conduct could have been explained as a reaction to Mina’s death or a reaction to accidentally pulling the trigger. [ 41 ] We see no merit in this argument.

As noted above, the sole issue for the jury to decide was that of intent, and the instruction respecting the appellant’s post offence conduct instructed the jury that this evidence would not assist them in resolving that issue. In essence, the trial judge gave the jury a “no probative value instruction”. [ 42 ] In conclusion, the appeal from conviction is dismissed. Sentence [ 43 ] The Crown sought a parole ineligibility period of 13 years, while defence counsel sought a period of 11 to 12 years. The trial judge set the period of parole ineligibility at 12 years.

The appellant now asks this court to reduce the parole ineligibility period from 12 years to 11. [ 44 ] The appellant conceded in oral argument that the period of parole ineligibility is not demonstrably unfit. In light of the parole ineligibility range suggested by the appellant at trial, and his position in oral argument, we see no merit in this sentence appeal. We are merely being asked to tinker in the range he originally put forward. Accordingly, the appeal from sentence is dismissed.

Appeal heard on February 14, 2023 Memorandum filed at Iqaluit, Nunavut this 24th day of February, 2023 Authorized to sign for: Smallwood J.A. Hughes J.A. Antonio J.A. Appearances: R. Louis

M. Bryant For the Respondent M. Eaton-Kent For the Appellant