HIS MAJESTY THE KING CROWN - v. -, 2023 SKKB 103

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 103 Date: 202 3 05 19 Docket: CRM-SA-00002-2022 Judicial Centre : Saskatoon BETWEEN: HIS MAJESTY THE KING CROWN - and - IVAN ROBERTO MARTELL ACCUSED Counsel: Linh N. Le for the Crown Patrick M. McDougall for the accused DECISION ROBERTSON J. May 19, 2023 Contents Para. Nos.

INTRODUCTION ........................................................................................................................................... 1 BACKGROUND .............................................................................................................................................. 2 Charge ........................................................................................................................................................... 2 Trial ............................................................................................................................................................... 3 RELEVANT LAW .......................................................................................................................................... 4 Onus and Burden of Proof ....................................................................................................................... 4 Reasonable Doubt ................................................................................................................................... 5-7 Witness Evidence ........................................................................................................................................ 8 Credibility and Reliability .................................................................................................................. 9-11

Criminal Code ...................................................................................................................................... 12-14 Elements of Offence ........................................................................................................................... 15-17 POSITION OF PARTIES ........................................................................................................................... 18 Crown ................................................................................................................................................... 18-19 Defence ........................................................................................................................................................ 20 ISSUES ............................................................................................................................................................. 21 ANALYSIS ...................................................................................................................................................... 22 Review of Crown evidence ............................................................................................................... 22-48 W.(D.) Analysis ................................................................................................................................... 49-53 W.(D.) First Step ................................................................................................................................. 54-73 W.(D.) Second Step ............................................................................................................................. 74-75 W.(D.) Third Step ............................................................................................................................... 76-78 Circumstantial Evidence ....................................................................................................................... 79 Motive ................................................................................................................................................ 80-81 Identity of killer ................................................................................................................................ 82-97 After-the-fact evidence .................................................................................................................. 98-100 First-degree murder ...................................................................................................................... 101-107 Application of s. 231(5) of the Criminal Code .......................................................................... 108-110 Sexual Assault ................................................................................................................................. 111-141 Verdict ...................................................................................................................................................... 142 INTRODUCTION [ 1 ] Ivan Roberto Martell [Mr.

Martell], is charged with first degree murder. What I must decide is whether the Crown has proved the charge beyond a reasonable doubt or, if not proved, then whether the evidence supports a finding of guilt under the lesser included offences of second-degree murder or manslaughter. BACKGROUND Charge [ 2 ] The indictment reads that Ivan Roberto Martell: On or about the 4 th day of March, 2020, at or near Saskatoon, Saskatchewan, did unlawfully cause the death of Allison Moosehunter and did thereby commit first degree murder, contrary to section 235(1) of the Criminal Code .

Trial [ 3 ] Trial began on January 30 continuing on January 31, 2023 and then adjourned to continue the weeks of February 27, March 6, and March 13, 2023. The Crown called 29 witnesses over 10 days, closing its case on March 9. Trial resumed on March 13 at which time the accused elected to call defence evidence. The accused testified on his own behalf on March 15 and was cross-examined on March 22. Closing argument was held on March 30 with decision reserved. RELEVANT LAW Onus and Burden of Proof [ 4 ] The Crown has the onus of proving the charge beyond a reasonable doubt.

The onus never shifts to the accused to prove his innocence. Reasonable Doubt [ 5 ] The Supreme Court of Canada, in R v Villaroman , 2016 SCC 33 at para 28 , [2016] 1 SCR 1000 [ Villaroman ],

described reasonable doubt as follows: [28] … A reasonable doubt is a doubt based on “reason and common sense”; … it “does not involve proof to an absolute certainty”; … [6] The Court of Appeal for Saskatchewan, in R v Wolff, 2019 SKCA 103 at para 76, 380 CCC (3d) 223,explained that the standard of reasonable doubt applies to the elements of the offence, not individual items of evidence: [76] It is also important to note that the beyond a reasonable doubt standard of proof does not apply to each individual piece ofcircumstantial evidence.

In order for a trier of fact to convict on the basis of circumstantial evidence, it is not necessary that each item ofevidence, individually, support only an inference of guilt. The determination of whether the guilt of the accused is the only reasonableinference that may be drawn must be made on an examination of the evidence as a whole. It is an error of law to subject individual piecesof evidence to the standard of proof beyond a reasonable doubt: … [7] See also: R v J.M.H., 2011 SCC 45 at para 31, [2011] 3 SCR 197 [J.M.H.], citing R v Morin, (SCC), [1988] 2 SCR 345 at paras 33 and 40.

Witness Evidence [8] The trier of fact may accept all, some or none of a witness’ evidence: see J.M.H. at para 25. Credibility and Reliability [9] In R v Campbell-Ball, 2019 SKCA 41 at paras 16-17, Caldwell J.A. for the Court of Appeal distinguishedbetween credibility and reliability in the assessment of a witness’ evidence. Credibility is about honesty of the witness. Reliability isabout accuracy of evidence.

A witness may be credible, in the sense of intending and trying to tell the truth, but his or her evidence maybe unreliable, because of frailties of memory or inability to accurately observe the events being recalled. [10] In F.H. v McDougall, 2008 SCC 53 at paras 57-58, [2008] 3 SCR 41, Rothstein J. for the Supreme Court ofCanada quoted from the judgment of Rowles J.A. of the British Columbia Court of Appeal in R v B.(R.W.) (1993), 24 BCAC 1 (WL)(BCCA), with respect to the relevance of inconsistencies in assessing witness testimony: [57] At para. 5 of her reasons, the trial judge had regard for the judgment of Rowles J.A. in R. v.

R.W.B. (1993), 24 B.C.A.C. 1, atparas. 28-29, dealing with the reliability and credibility of witnesses in the case of inconsistencies and an absence of supporting evidence.Although R.W.B. was a criminal case, I, like the trial judge, think the words of Rowles J.A. are apt for the purposes of this case: In this case there were a number of inconsistencies in the complainant’s own evidence and a number of inconsistencies between thecomplainant’s evidence and the testimony of other witnesses.

While it is true that minor inconsistencies may not diminish the credibilityof a witness unduly, a series of inconsistencies may become quite significant and cause the trier of fact to have a reasonable doubt aboutthe reliability of the witness’ evidence. There is no rule as to when, in the face of inconsistency, such doubt may arise but at the least thetrier of fact should look to the totality of the inconsistencies in order to assess whether the witness’ evidence is reliable.

This isparticularly so when there is no supporting evidence on the central issue, which was the case here. [para. 29] [58] As Rowles J.A. found in the context of the criminal standard of proof, where proof is on a balance of probabilities there islikewise no rule as to when inconsistencies in the evidence of a plaintiff will cause a trial judge to conclude that the plaintiff’s evidenceis not credible or reliable.

The trial judge should not consider the plaintiff’s evidence in isolation, but must look at the totality of theevidence to assess the impact of the inconsistencies in that evidence on questions of credibility and reliability pertaining to the core issuein the case. [11] In assessing credibility and reliability, I am mindful that the witnesses were testifying to events that occurredover three years ago and that memory is fallible. Some inconsistency and inability to remember is to be expected. Criminal Code [12] The accused is charged under s. 235(1) of the Criminal Code, RSC 1985, c C-46.

Section 235 is reproducedbelow: Punishment for murder 235

(1) Every one who commits first degree murder or second degree murder is guilty of an indictable offence and shall be sentenced toimprisonment for life. Minimum punishment

(2) For the purposes of

Part XXIII, the sentence of imprisonment for life prescribed by this

section is a minimum punishment. [13]

Section 231 describes the classification of murder between first-degree and second-degree: Classification of murder 231

(1) Murder is first degree murder or second degree murder. Planned and deliberate murder

(2) Murder is first degree murder when it is planned and deliberate.

Contracted murder

(3) Without limiting the generality of subsection (2), murder is planned and deliberate when it is committed pursuant to an arrangement under which money or anything of value passes or is intended to pass from one person to another, or is promised by one person to another, as consideration for that other’s causing or assisting in causing the death of anyone or counselling another person to do any act causing or assisting in causing that death. Murder of peace officer, etc.

(4) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the victim is (

a) a police officer, police constable, constable, sheriff, deputy sheriff, sheriff’s officer or other person employed for the preservation and maintenance of the public peace, acting in the course of his duties; (

b) a warden, deputy warden, instructor, keeper, jailer, guard or other officer or a permanent employee of a prison, acting in the course of his duties; or (

c) a person working in a prison with the permission of the prison authorities and acting in the course of his work therein. Hijacking, sexual assault or kidnapping

(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections: (

a) section 76 (hijacking an aircraft); (

b) section 271 (sexual assault); (

c) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm); (

d) section 273 (aggravated sexual assault); (

e) section 279 (kidnapping and forcible confinement); or (

f) section 279.1 (hostage taking). Criminal harassment

(6) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the death is caused by that person while committing or attempting to commit an offence under

section 264 and the person committing that offence intended to cause the person murdered to fear for the safety of the person murdered or the safety of anyone known to the person murdered. Murder — terrorist activity

(6.01) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when the death is caused by that person while committing or attempting to commit an indictable offence under this or any other Act of Parliament if the act or omission constituting the offence also constitutes a terrorist activity. Murder — criminal organization

(6.1) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when (

a) the death is caused by that person for the benefit of, at the direction of or in association with a criminal organization; or (

b) the death is caused by that person while committing or attempting to commit an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of or in association with a criminal organization. Intimidation

(6.2) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when the death is caused by that person while committing or attempting to commit an offence under

section 423.1. Second degree murder

(7) All murder that is not first degree murder is second degree murder. [ 14 ]

Section 232 explains when a charge of murder may be reduced to manslaughter: Murder reduced to manslaughter

(1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. What is provocation

(2) Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool. Questions of fact

(3) For the purposes of this section, the questions (

a) whether the conduct of the victim amounted to provocation under subsection (2), and (

b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received, are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being. Death during illegal arrest

(4) Culpable homicide that otherwise would be murder is not necessarily manslaughter by reason only that it was committed by a person who was being arrested illegally, but the fact that the illegality of the arrest was known to the accused may be evidence of provocation for the purpose of this section.

Elements of Offence [ 15 ] The common elements of any offence are: 1) identity; 2) date; and 3) location. [ 16 ] The constituent elements of first-degree murder are that: 1. the accused committed an unlawful act; 2. the accused’s unlawful act caused the victim’s death; 3. the accused had the intent (state of mind) required for murder; and 4. the accused’s murder of the victim was both planned and deliberate or occurred during the commission or attempted commission of a prescribed offence. [ 17 ] If only the first three elements are proved, the accused is not guilty of first-degree murder, but is guilty of second-degree murder.

If only the first two elements are proved, the accused is guilty of manslaughter. POSITION OF PARTIES Crown [ 18 ] The Crown’s theory is that the accused personally murdered Allison Moosehunter [Allison] while they were together at 550B Geary Crescent, Saskatoon, Saskatchewan in the morning of March 4, 2020 and in doing so committed a sexual assault, thereby constituting first-degree murder under s. 231(5) (

b) of the Criminal Code . [ 19 ] The Crown argues that the only reasonable inference from all of the evidence is that the accused murdered Allison. The evidence of the sexual assault is: that her pants were pulled down exposing her buttocks; her panties were cut or torn in the crotch; and the handle of a knife was inserted in her rectum. Defence [ 20 ] The accused argues that the defence alibi is a complete defence to any charge arising from the death of Allison. The accused was elsewhere when the crime occurred.

She may have been the unfortunate victim of the drug trade, given that the previous tenant was dealing drugs as was Mr. Martell. Even if the alibi is not accepted, the circumstantial evidence fails to prove the charge beyond a reasonable doubt. The accused is entitled to the benefit of that doubt and should be acquitted. ISSUES [ 21 ] There are two basic issues: 1. Did the Crown prove the charge beyond a reasonable doubt?

2. If not, does the evidence prove either of the lesser included offences? ANALYSIS Review of Crown evidence [ 22 ] I found the Crown witnesses to be both credible and reliable. The Crown evidence establishes that Allison was the victim of a homicide in her basement suite at 550B Geary Crescent, Saskatoon on or about March 4, 2020. [ 23 ] The date and location of the offence are proved. The accused was repeatedly identified as Ivan Roberto Martell.

Whether he was the assailant is an issue in dispute. [ 24 ] The accused, Ivan Roberto Martell, known as Robbi, and the victim, Allison, known as Aly, had been in a romantic relationship for a few years. The relationship continued during the periods when Mr. Martell was in jail. The relationship was not continuous and described by some witnesses as “on again, off again”. For example, they had broken up and were living apart in February 2020, but reconciled in early March 2020, shortly before Allison’s death. [ 25 ] From the evidence, Mr.

Martell had been residing with Allison at 550B Geary Crescent and was residing there on the night of March 3/4, 2020. Mr. Martell was paroled to this address as his residence. Mr. Martell received mail at this address. He regularly parked his blue Chevrolet Cavalier beside Allison’s Jeep Patriot in the rear parking area. [ 26 ] The evidence established that Allison was with Mr. Martell on the evening before her death. Allison sent text messages on March 3, 2020 saying the two were going out for dinner that evening and later posted a photograph of the two of them apparently out for dinner.

Greg Moosehunter, brother of Allison Moosehunter, stopped by 550B Geary Crescent on March 3, 2020 around 10:20 p.m. or 10:30 p.m. and saw Allison and Mr. Martell together in the basement suite. [ 27 ] The upstairs neighbour, Shauna Arthurs, was awakened by her dog during the early morning of March 4, 2020. She woke her husband, Randy Didur, to let the dog outside. She thought it was around 5:00 a.m. Her husband put the time at 4:50 a.m. which I find to be more accurate. [ 28 ] When letting the dog outside, they both heard what sounded like a muffled yell or scream coming from the basement.

The time of the scream is confirmed by a surveillance system in a property down the street, which records both audio and video. The video from the backyard camera shows the backyard of 550B Geary Street, four lots away. The audio clearly records a piercing scream by a female on March 4, 2020 at 4:53:30. [ 29 ] The upstairs neighbours heard other noises coming from the basement around this time. Ms. Arthurs described moaning which she thought might be related to sexual activity. Ms. Arthurs was sufficiently concerned to make a telephone call to Allison which went unanswered, leaving a voice mail message. Mr.

Didur asked his wife to text Allison. Ms. Arthurs then sent a text message to Allison at 5:04 a.m. The noises had ended and the upstairs neighbours returned to bed and went back to sleep. [ 30 ] The text message sent at 5:04 a.m. was answered at 6:06 a.m., by which time the upstairs neighbours had gone back to sleep. The reply came from Allison’s cell phone. That cell phone was found at the scene of the crime. [ 31 ] Ms. Arthurs, who read the message when she got up later that morning, testified that the answer received from Allison’s phone did not read like it came from Allison. Ms.

Arthurs sent another text message to Allison at 10:37 a.m., but received no reply. [ 32 ] Lois Prosper, Allison’s co-worker and best friend, had sent a text message to her when she failed to show up for work. Ms. Prosper received a text in reply from Allison’s phone number at 8:56 a.m. The reply message -- “Mfuck” and “I lost my phone” -- did not make sense. [ 33 ] Mr. Didur saw Allison’s Jeep Patriot and Mr. Martell’s blue Chevrolet Cavalier parked out back on March 4, 2020 at around 4:50 a.m. when he joined his wife at the backdoor and again around 7:50 a.m. when he got up to go to work.

The Chevrolet Cavalier had been parking there on and off for the past two weeks. Ms. Arthurs saw the Jeep Patriot at around 8:00 a.m. after she got up. [ 34 ] SaskTel records show that five calls were made from a cell phone number registered to Mr. Martell (***-***- ***) while it was in the vicinity of 550 Geary Crescent, Saskatoon on March 4, 2020. Two calls were made from Mr. Martell’s phone number to his brother’s phone number (***-***-***) at 5:02 a.m., lasting two seconds and five seconds. Another call was made from Mr.

Martell’s phone number to his father’s phone number (***-***-****) at 5:03 a.m., lasting 1,409 seconds or almost 24 minutes. Two more phone calls were made from Mr. Martell’s phone number at 8:41 a.m.: first to his brother’s phone number, lasting 10 seconds, and then to his father’s phone number, lasting 1,625 seconds or over 27 minutes. [ 35 ] Ms. Arthurs heard a door slamming around 9:00 a.m.

From past experience, she thought it was the door to 550B Geary Crescent, since it had to be closed forcefully to properly close. [ 36 ] The surveillance video from 566 Geary Crescent shows someone in the backyard of 550 Geary Crescent on March 4, 2020 around 9:01 a.m. followed by an SUV driving past in the back alley at 9:10 a.m. [ 37 ] SaskTel records show that a call was made from the cell phone number registered to Mr. Martell (***-***-***) to an unidentified phone number (***-***-****) at 9:13 a.m. lasting 96 seconds. The cell tower analysis indicated that Mr.

Martell’s phone was in the vicinity of 33 rd Street West and Confederation Drive in Saskatoon and was moving south. [ 38 ] Calls to Mr. Martell’s phone number between 9:57 a.m. and 11:31 a.m. went to voice mail, indicating that the

cell phone was turned off over that period. [39] Kirk Machup, who knew Allison from her workplace, recognized her Jeep Patriot parked on March 4, 2020 inhis daughter’s parking stall at 365 Pendygrasse Road, Saskatoon, an apartment complex. The vehicle bore a distinctive “vanity” licenceplate “4EVERL8”. The vehicle was there on March 4, 2020 at 9:30 a.m. and 12 noon, but gone when Mr. Machup returned at 4:00 p.m. [40] SaskTel records show that two calls were received by the cell phone number registered to Mr. Martell (***-***-****) while it was in the vicinity of 365 Pendygrasse Road, Saskatoon on March 4, 2020.

The calls came from Mr. Martell’s brother’sphone number and were made at 12:21 p.m., lasting 253 seconds or over 4 minutes, and 12:38 p.m., lasting 98 seconds. [41] When “Aly”, as she was known to her friends and family, failed to show up for her 7:00 a.m. shift as supervisorat the Fire Creek Gas & Grill and did not answer calls to her telephone number, her co-workers, friends and family became alarmed.Allison was known as a very responsible employee who always came to work on time or called ahead if she was delayed.

At differenttimes that morning, her mother, father and finally her brothers went to her home and knocked on the doors and windows, but no oneanswered. The windows were secure and the door was locked. Finally, her brothers broke into the basement suite and found her body inthe bathroom. The upstairs neighbour called 911 around this time, about 12:20 p.m., and police and other emergency services weredespatched to attend. Firefighters with paramedic training who attended checked the body and confirmed death.

The body was then coldand clammy to the touch, but rigor mortis had not set in. [42] Allison was known as a good housekeeper who kept her home neat and tidy. Those who attended remarked onthe disarray and signs of violence in the basement suite living room, including a large pool of blood and hair apparently torn from thescalp of Allison. [43] Allison’s body was found on the floor in the bathroom. There appeared to be bloody drag marks from the livingroom down the hall to the bathroom.

Her back and body had scratch marks from contact with a hard surface which could have beencaused from being dragged over the floor. The bruising on those abrasions was yellowed, indicating she was then dead or dying. [44] The handle of a large knife had been inserted into the rectum of the deceased. The first police officer to entersaid it was one of the top three worst crime scenes she had experienced and she still had dreams about it.

That police officer is a seniorofficer with 23 years experience policing with the Saskatoon Police Service, including a year’s overseas service in Iraq. [45] Police took swabs of blood smears found on the back of the bathroom door and bathroom sink of 550B GearyCrescent. Those swabs were tested by R.C.M.P. National Forensic Laboratory Services. That analysis revealed DNA which matchedDNA from the blood sample taken from Mr. Martell under a blood warrant. The reporting scientist, Dr.

Melanie Green, testified that,while the DNA could have come from other biological material other than the blood smear, such as skin cells, the most reasonablescientific conclusion was that the DNA originated from the blood. [46] An autopsy was conducted on March 5, 2020 by Dr. Eric Bol, a forensic pathologist. The autopsy report states:“Cause of death is multiple sharp force injuries and manual compression of the neck (strangulation).” Dr. Bol testified that death wascaused either by a deep stab wound which penetrated the left lung or manual strangulation, meaning by hand, or by both causes.

Hecould not estimate a time of death. The autopsy revealed significant bruising to the face and head, other abrasions on the body, ten stabwounds (to the face, chest, left arm and inner thighs) and manual strangulation. Dr. Bol said the victim was alive when strangled. Themajority of the other injuries, including the lung penetration, were also likely inflicted while the victim was alive, based on bleeding(below the skin for bruising or through the skin for stabbing) indicating a functioning heart. There was no physical sign of sexual trauma.Dr.

Bol could not offer an opinion as to whether the victim offered resistance or was conscious or unconscious when the injuries wereinflicted. The victim’s underwear was torn in the crotch. [47] The toxicology report from the autopsy found cocaine, fentanyl and methamphetamine in Allison’s body. [48] Mr. Martell was arrested on March 12, 2020. He was examined and photographs taken of any visible injurieswhen he was processed at the Saskatoon police station. Those photographs show older injuries in the form of some bruising, abrasionsand nicks or cuts, including bruised knuckles.

The nicks to his hand were partially healed. W.(D.) Analysis [49] Mr. Martell testified in his own defence. He denied any involvement in the death of Allison Moosehunter. Mr.Martell gave alibi evidence. According to his evidence, he left 550B Geary Crescent shortly after midnight on March 4, 2020 and neverreturned. During the hours when the killing must have occurred, he was being driven around town by an acquaintance while engaged inselling cocaine. If so, he could not be the killer.

And he did not know who killed Allison. [50] In R v Dirksen, 2021 SKCA 6, 398 CCC (3d) 411, Tholl J.A., for the Court of Appeal, confirmed that a trialjudge does not choose between which version he or she finds to be most probable.

Instead, a trial judge must consider all of the evidenceand determine whether the Crown has proved the charge beyond a reasonable doubt. [51] In R v W.(D.), (SCC), [1991] 1 SCR 742 at 757-758 [W.(D.)], Cory J., in the majority decision,stated a three-part test to assess competing versions of the evidence. [52] The first step of the W.(D.) analysis is to decide if the trial judge believes the evidence of the accused. If so,then the trial judge should acquit. A finding that the accused is not believed does not mean the accused is guilty.

On the second step, thetrial judge must ask whether the accused’s evidence raises a reasonable doubt. On the third step, the trial judge must consider whether,on the basis of all the evidence, the Crown has proved the charge beyond a reasonable doubt. If there is a reasonable doubt, then theaccused is not guilty. [53] At the same time, the Supreme Court has cautioned that this analysis remains flexible. So, for example, in R v

J.H.S., 2008 SCC 30 at para 13, [2008] 2 SCR 152, Binnie J. for the court wrote: [13] In short the W.(D.) questions should not have attributed to them a level of sanctity or immutable perfection that their authornever claimed for them. W.(D.)’s message that it must be made crystal clear to the jury that the burden never shifts from the Crown toprove every element of the offence beyond a reasonable doubt is of fundamental importance but its application should not result in atriumph of form over substance. In R. v.

S.(W.D.), (SCC), [1994] 3 S.C.R. 521, Cory J. reiterated that the W.(D.)instructions need not be given “word for word as some magic incantation” (p. 533). In R. v. Avetysan, [2000] 2 S.C.R. 745, 2000 SCC56, Major J. for the majority pointed out that in any case where credibility is important “[t]he question is really whether, in substance, thetrial judge’s instructions left the jury with the impression that it had to choose between the two versions of events” (para. 19). The mainpoint is that lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt.

W.(D.) First Step [54] The first step of the W.(D.) analysis is to decide if I believe the evidence of the accused. If I do, then I shouldacquit. [55] Mr. Martell testified that he was consuming drugs on the days before, on and after March 4, 2020. [56] Mr. Martell testified that he left 550B Geary Crescent shortly after midnight on March 4, 2020 and neverreturned. On his evidence, he was engaged in street-level drug trafficking throughout the night. He had received a call around midnightfrom someone wanting to buy cocaine which he had to sell.

He called a friend named “Dwayne”, last name unknown. [57] Dwayne, driving a truck, picked Mr. Martell up at the end of Geary Crescent. Dwayne then drove Mr. Martellaround the city throughout the night, engaging in drug sales. They ended up in the later morning at a residence near where his fatherlived in the Riversdale neighbourhood. The residence was occupied by Missy, last name unknown, who Mr. Martell knew. Mr.

Martellfell asleep there. [58] When he woke up around 12 noon (from direct examination) or between 1:00 p.m. and 2:00 p.m. (from cross-examination) on March 4, 2020, he was shocked to learn from social media on his cell phone that he was wanted by police in connectionwith the death of Allison Moosehunter. Suffering from anxiety, Mr. Martell wanted to talk with his father. Mr. Martell called Dwaynewho drove him to Mr. Martell’s father’s home and left him there. Mr. Martell went to both the front and back doors, but no one answeredthe door. While at the backdoor, Mr. Martell slipped on ice and fell.

That fall caused the bruising shown in the police photographs of hisbody taken after his arrest on March 12, 2020. During the intervening eight days, Mr. Martell stayed with relatives and sought counselfrom his father and his lawyer, Patrick McDougall. He was on his way to see Mr. McDougall with his father at the time of his arrest. Hisintention was to voluntarily turn himself in to police. [59] Mr. Martell did not make a statement to police.

Nor did he provide any notice to the Crown of alibi evidence.(The trial was adjourned for a week at the request of the Crown to allow police an opportunity to investigate the alibi.) [60] Sidney N. Lederman, Michelle K. Fuerst & Hamish C. Steward, The Law of Evidence in Canada, 6th ed(Toronto: LexisNexis, 2022) at 641 comments upon disclosure of an alibi at trial: [v] Disclosure of an Alibi ¶8.329 As part of the right to silence, the accused is under no obligation to disclose to the Crown that it will be relying on an alibidefence.

However, if timely disclosure is not made, the accused runs the risk that the Crown may use this fact to attack the credibility ofthe alibi and the trier of fact may draw an adverse inference affecting the weight of the alibi evidence.

Although not yet expresslydecided, these uses arising from later or inadequate disclosure of an alibi do not seem to violate the s. 7 right to silence. [61] In R v J.J., 2022 SCC 28 at para 158, 471 DLR (4th) 577, the Supreme Court of Canada recognized the duty toprovide notice of alibi evidence and the discretion to draw an adverse inference for failure to provide advance notice: [158] There are many examples in the criminal trial process where the defence is required to disclose aspects of its defence theory andevidence in support of it.

For example, if the defence wishes to adduce evidence of an alibi, it must provide advance disclosure to theCrown in "a timely way", and the disclosure must be "sufficiently particular to enable the authorities to meaningfully investigate" (R. v.Tomlinson, 2014 ONCA 158, 307 C.C.C. (3d) 36, at para. 121).

Where the defence fails to provide timely and sufficient notice (whichwill typically be before trial), the trier of fact "may draw an adverse inference" when assessing the worth of the alibi (Tomlinson, at para.122). [62] I do draw an adverse inference from the failure to provide notice to the Crown and the three-year delay indisclosing this alibi. The inference is limited to the defence of alibi. [63] One would expect close friends of the deceased to want to assist police with their investigation.

Even if they hadreasons not to speak with police, once it became clear they were a suspect, it would be in their interest to eliminate themselves as asuspect by disclosing their alibi. [64] The account given by Mr. Martell provides some detail, such as first names of people he was with, roads theydrove on and places they went, but remains vague in other respects, such as not knowing any last names or addresses of the people hewas with. [65] For example, Mr. Martell said he had known Dwayne, who he said was known as “D”, for two years and theywere incarcerated together in the Saskatoon Correctional Centre. Mr.

Martell said he sold drugs to Dwayne. Mr. Martell said Dwayne

drove him around all night on March 4, 2020. Yet Mr. Martell did not know Dwayne’s last name, address or whether he had children. Further, Mr. Martell made no attempt to contact Dwayne after March 4, 2020, although, if Mr. Martell’s account was true, Dwayne would be able to support Mr. Martell’s alibi. [ 66 ] Mr. Martell’s explanation for the injuries recorded in the police photographs taken after his arrest seemed contrived. He explained bruising as caused by a fall at the back door of his father’s home on March 4, 2020. But Sgt. Shepperd testified that Mr.

Martell told her, when she remarked on the bruising and it being icy outside, that he had fallen inside a house. When asked in examination in chief how he acquired the healed cuts, he said he did not know, but they were “just nicks” and had nothing to do with Allison’s death. [ 67 ] Mr. Martell in his testimony provided no explanation for why his DNA was found on swabs of blood in the bathroom. [ 68 ] Mr.

Martell in his testimony gave no explanation why phone calls were being placed from his cell phone number on the morning of March 4, 2020 first in the vicinity of 550 Geary Crescent and later in the vicinity of 365 Pendygrasse Road, where Allison’s Jeep Patriot, which had left 550 Geary Crescent after the murder, was then parked. These calls were made to Mr. Martell’s father and brother. [ 69 ] While some of Mr. Martell’s evidence is consistent with Crown evidence, I do not believe his alibi evidence. I will therefore proceed to the second step of the analysis.

But before doing so, I will also briefly address the alternate scenario put forward in the defence’s closing argument. [ 70 ] The defence suggested that perhaps Allison was an innocent victim of the drug trade, speculating that, after Mr. Martell had left the basement apartment, someone else came to 550B Geary Crescent seeking retribution or payment of a drug debt. The only evidence supporting this theory would be the testimony of the upstairs neighbour that a previous tenant had dealt drugs from 550B Geary Crescent and Mr. Martell’s testimony that he was a drug dealer. But Mr.

Martell also testified that he paid his drug debts and did not deal drugs from 550B Geary Crescent and in fact took care not to involve that address, such as by having Dwayne pick him up at the end of the street. [ 71 ] The defence also suggested that Allison left her door unlocked or a key outside, pointing to text messages with Mr. Martell. But those messages, read in context, do not support that suggestion. The exchange of messages between Mr. Martell and Allison occurred when Mr. Martell had left the home during a dispute and appeared intent on sleeping in his car.

Allison’s message that “I unlocked the door” actually confirms the other evidence that Allison normally kept her door locked. [ 72 ] So one would have to accept that Allison opened the door after midnight and allowed an unknown person or persons to enter, given the lack of any signs of struggle in the entrance way or stairway. That person or persons then brutally killed her and then stayed at the scene of the crime for another four hours. During that time the person or persons were able to access Mr. Martell’s cell phone to call his relatives and access Allison’s cell phone to answer text messages.

The person or persons waited until it was daylight before leaving 550B Geary Crescent. When they did leave, they took Mr. Martell’s cell phone, but not cash and valuables which were in plain sight. The person or persons drove away in Allison’s vehicle, but again left it and its contents intact. They did all this without leaving any trace of their identity. [ 73 ] This alternate scenario suggested by the defence of murder committed in the course of a theft or collecting a drug debt is not supported by the evidence. It is speculative and so unlikely as to lack any air of reality.

W.(D.) Second Step [ 74 ] A finding that the accused is not believed does not mean he is guilty. On the second step, I must ask myself whether his evidence raises a reasonable doubt. [ 75 ] For the same reasons outlined above in the first step of the analysis, I find that Mr. Martell’s evidence does not raise a reasonable doubt. W.(D.) Third Step [ 76 ] On the third step, I must consider whether, on the basis of all the evidence, the Crown has proved the charge beyond a reasonable doubt. If I have a reasonable doubt, then I must find the accused not guilty.

Only if I am convinced by the evidence that the Crown has proved each and every element of the offence can I find Mr. Martell guilty. [ 77 ] The key questions to be addressed are whether the evidence establishes the identity of the assailant and, if so, what offence is supported by the evidence. [ 78 ] The first question brings us back to the question of identity; whether the Crown has proved beyond a reasonable doubt that Ivan Roberto Martell was the killer. The evidence of that is mainly circumstantial. Circumstantial Evidence [ 79 ] The leading authority on circumstantial evidence is Villaroman .

In R v Learning , 2019 SKCA 5 at para 24 [ Learning ], the Court of Appeal for Saskatchewan summarized the principles set out in Villaroman : [24] Importantly, the Court in R v Villaroman had earlier commented on the reasoning process in cases of circumstantial evidence, noting: (a) “The inferences that may be drawn from [an] observation must be considered in light of all of the evidence and the absence of

evidence, assessed logically, and in light of human experience and common sense” (at para 30). (b) “In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts” (at para 35). (c) “The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it.

If there arereasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt” (at para35). (d) “[A] reasonable doubt, or theory alternative to guilt, is not rendered ‘speculative’ by the mere fact that it arises from a lack ofevidence. As stated by this Court in Lifchus [ (SCC), [1997] 3 SCR 320], a reasonable doubt ‘is a doubt based on reasonand common sense which must be logically based upon the evidence or lack of evidence’: para. 30 (emphasis added). A certain gap inthe evidence may result in inferences other than guilt.

But those inferences must be reasonable given the evidence and the absence ofevidence, assessed logically, and in light of human experience and common sense” (at para 36). (

e) When assessing circumstantial evidence, the trier of fact should consider ‘other plausible theor[ies]’ and ‘other reasonablepossibilities’ which are inconsistent with guilt” (at para 37). (f) “[T]he Crown thus may need to negative these reasonable possibilities, but certainly does not need to ‘negative every possibleconjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused’. …‘[O]ther plausibletheories’ or ‘other reasonable possibilities’ must be based on logic and experience applied to the evidence or the absence of evidence, noton speculation” (at para 37; emphasis in original).

Drawing on all of this, the Court said (at para 38) that the “basic question” in such cases is “whether the circumstantial evidence, viewedlogically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.” Motive [80] While motive is not an element of an offence, evidence of motive may be relevant. I find little evidence ofmotive. Nor is there evidence of any history of violence in the relationship or propensity for violence on the part of Mr. Martell. On theevidence, Mr.

Martell and Allison were back together after a brief break-up and appeared to be happy on the evening of March 3, 2020. [81] While I am satisfied that Mr. Martell killed Allison on the morning of March 4, 2020, the reason for the fatalattack is uncertain. As Danyliuk J. commented in R v Caissie, 2019 SKQB 3 at para 240: [240] The fact that some questions raised by the evidence remain unanswered is not tantamount to inconsistency with guilt. In acriminal case, the evidence does not have to provide an answer to every question.

The elements of the offences charged are outlinedearlier in this judgment and I find the Crown has proven each required element beyond a reasonable doubt. Identity of killer [82] The following evidence supports the conclusion that Ivan Roberto Martell was the killer. [83] Mr. Martell was the last person known to be with Allison. Greg Moosehunter saw them together on March 3,2020 around 10:30 p.m. in 550B Geary Crescent, Saskatoon. [84] On the night of March 3/4, 2020, Mr. Martell was again residing at 550B Geary Crescent and appeared to bestaying the night. Mr. Martell used that address as his mailing address.

His car was parked in the backyard parking area. It was coveredwith snow on March 4, 2020, indicating it had not been moved recently. Mr. Martell’s clothes and personal belongings were found in thebasement suite, including his watch and eyeglasses which he normally wore. Although there had been a recent break-up, Allison and Mr.Martell were back together. Mr. Martell confirmed this in his testimony, saying that he had moved back in to 550B Geary Crescent onMarch 2 or 3, 2020. [85] Allison was known to keep her outside entrance door locked and deadbolted. There was no sign of forced entry. [86] Mr.

Martell and other witnesses testified that Allison did not drink alcohol nor consume illicit drugs. Thetoxicology report from the autopsy found cocaine, fentanyl and methamphetamine in Allison’s body. The presence of these drugs inAllison’s system raises the question of whether the drugs were ingested involuntarily or under some form of compulsion. As a drugdealer, Mr. Martell would have access to those drugs. [87] The fatal assault likely occurred around 4:50 a.m. – 5:00 a.m. on March 4, 2020. The upstairs neighbours wereawakened around 4:50 a.m.

They both heard a muffled scream and some other noises and then quiet. The audio-video recording from aneighbour’s surveillance camera records a piercing female scream at 4:53:30 a.m., confirming the evidence of the upstairs neighbours. [88] Four calls were made from Mr. Martell’s cell phone number from the vicinity of 550 Geary Crescent at 5:02a.m. (two calls), 5:03 a.m. and 8:41 a.m. These calls were to phone numbers of Mr. Martell’s brother and father.

The phone calls to Mr.Martell’s father at 5:03 a.m. and 8:41 a.m. lasted about 24 and 27 minutes respectively, indicating whoever answered engaged in lengthyconversation with the caller. [89] Mr. Martell’s DNA was found in swabs taken from blood smears on the bathroom sink and bathroom door. It isnot unusual for the assailant to also be cut when attacking with a bladed weapon. While the DNA could have come from other biologicalmaterial, including skin cells, Dr. Green testified that the reasonable scientific conclusion is that it came from the blood. Mr.

Martelltestified that he and Allison had cleaned the basement suite when he moved out in February. Allison was known to keep her home neatand tidy. So it is very unlikely the blood smears were there before the fatal assault. They were likely left when Allison’s body wasdragged into the bathroom.

[ 90 ] Allison’s cell phone required either facial recognition or a password for use. Allison’s cell phone was found in the basement suite. Someone replied from Allison’s cell phone on March 4, 2022 at 6:04 a.m. to the upstairs neighbour’s text message and at 8:56 a.m. to Ms. Prosper’s message. The injuries were fatal, so Allison was likely then dead or dying. The neighbour said the message did not sound like it came from Allison, based upon their many previous conversations. Ms. Prosper similarly said the reply message was confusing.

The message said “I lost my phone”, but the phone was being used for reply. [ 91 ] In R v Woods , 2019 SKCA 84 at para 110 , 379 CCC (3d) 356, Whitmore J.A. writing for the Court of Appeal commented on the significance of messages sent from the victim’s cellphone after her death: [110] …The November Messages have a particularly high probative value because some of them were sent from Dorothy’s cellphone number after she had disappeared, strongly indicating the sender was the killer. … [ 92 ] Allison’s Jeep Patriot was driven from the scene of the crime sometime in the morning, possibly at 9:10 a.m. when an SUV was recorded driving down the lane behind 566 Geary Crescent.

Allison’s DNA was found in a blood droplet on the driver side door sill, so was almost certainly left by someone leaving the scene of the crime after the fatal attack. The blood droplet was still wet when the blood droplet was detected during police examination of the vehicle in the later afternoon of March 4, 2020. [ 93 ] A call was made from Mr. Martell’s cell phone number at 9:13 a.m. on March 4, 2020 lasting 96 seconds. The cell phone was moving south in the vicinity of 33 rd and Confederation Drive. 550 Geary Avenue would be to the north and 365 Pendygrasse Road to the south. [ 94 ] Mr.

Machup observed Allison’s Jeep Patriot parked in stall #135 at 365 Pendygrasse Road around 9:30 a.m. and 12 noon. Calls were received by Mr. Martell’s cell phone number at 12:21 p.m. lasting 253 seconds and at 12:34 p.m. lasting 98 seconds, both in the vicinity of the parked Jeep Patriot. The calls were made from Mr. Martell’s brother’s phone number. [ 95 ] Mr.

Martell provided no explanation for the calls made to and from his personal cell phone on March 4, 2020. [ 96 ] Unlike Allison’s other family and friends, who were immediately concerned about her failure to show up for work and began trying to locate her, including coming to her home, Mr. Martell did not respond to calls from police who were trying to locate him and was nowhere to be found. Mr.

Martell made no attempt to return to Allison or contact any of her friends or family after learning of her death. [ 97 ] Finally, the photographs taken by police following his arrest on March 12, 2020 reveal many old injuries which could be consistent with committing an assault, including bruised knuckles (delivering blows to the head) and small cuts (use of a bladed weapon). Mr. Martell’s evidence is that the injuries were sustained from other events, but at least some coincided in time with the fatal assault (bruising from a fall on March 4, 2020).

After-the-fact evidence [ 98 ] In R v Cudjoe , 2009 ONCA 543 at para 78 , 251 OAC 163, Watt J.A. for the Ontario Court of Appeal stated the governing principles for consideration of after-the-fact evidence:

(3) The Governing Legal Principles [77] To assist in proof of an accused’s participation in an offence a prosecutor may adduce evidence of what the accused said or did after the offence was committed. The prosecutor invites the trier of fact to infer prior participation in the offence from subsequent conduct. Circumstantial evidence is used retrospectantly: the later occurrence of

an act, state of mind or state of affairs is offered to support an inference that the prior act was done or state of affairs or mind existed in the past at the material time. [78] Evidence of after-the-fact conduct is no different than any other circumstantial evidence. The inferences drawn from it must be reasonable, not speculative. They must be rooted in human experience and common sense. There is no fixed regime of inferences.

What may be inferred is case-specific, a function of several factors, including but not only: i. the nature of the conduct; ii. the facts sought to be inferred from the conduct; iii. the positions of the parties; and iv. the totality of the evidence. R. v. Figueroa (2 008), 2008 ONCA 106 , 232 C.C.C. (3d) 51 (Ont.

C.A.) , at paras. 33 and 35 . [ 99 ] As stated in Learning , quoting from Villaroman , “the ‘basic question’ in such cases is ‘whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.’ ” [ 100 ] The reasonable inference from the evidence is that Mr. Martell was in the basement suite at the time of the fatal assault and for some time after.

While any single item of evidence might be capable of an alternate explanation, viewed in their totality, I find that the evidence leaves no reasonable doubt other than that Ivan Roberto Martell was the killer of Allison Moosehunter on March 4, 2020 in Saskatoon, Saskatchewan. The alternative explanations for the evidence are so improbable as to be absurd. First-degree murder

[101] The next question then is whether the elements for first-degree murder are established. [102] On the Crown theory, the constituent elements of first-degree murder are: 1. that the accused committed an unlawful act; 2. that the accused’s unlawful act caused the victim’s death; 3. that the accused had the intent (state of mind) required for murder; and 4. that the death was caused by the accused while committing or attempting to commit sexual assault. [103] The evidence establishes that Mr. Martell inflicted fatal injuries to Allison in a violent assault.

That assault wouldbe an unlawful act. [104] The evidence establishes that Allison died as a result of either or both of the deep knife wound that penetrated theleft lung or manual strangulation. These unlawful acts caused her death. [105] This was a multi-faceted and vicious assault. The assault included blunt force trauma to the head and face, hairtorn from the scalp, multiple cuts and stab wounds over various parts of the body and manual strangulation. Finally, the body was movedto the bathroom. The nature of the assault and injuries satisfies me that the assailant, who I find to be Mr.

Martell, either intended to killor was reckless as to whether death would result. This satisfies the state of mind element for murder. [106] Thus, I am satisfied that the first three elements are established to prove murder. [107] That leaves the question of whether the death was caused by the accused while committing or attempting tocommit sexual assault, contrary to s. 271 of the Criminal Code.

Application of s. 231(5) of the Criminal Code [108] In R v Pritchard, 2008 SCC 59 at para19, [2008] 3 SCR 195 [Pritchard], Binnie J. for the Supreme Court ofCanada explained the purpose of s. 231(5) of the Criminal Code which raises to first-degree murder deaths caused while committing orattempting to commit certain prescribed offences, including sexual assault: [19] Section 231(5) reflects Parliament’s sentencing policy to treat murders committed in connection with crimes of domination asparticularly blameworthy and deserving of more severe punishment.

The phrase “while committing or attempting to commit” “requiresthe killing to be closely connected, temporally and causally, with an enumerated offence”: [citations omitted] [109] Pritchard at para 33 explains that for s. 231(5) to apply, the murder and the other prescribed offence must besufficiently closely connected, both in time and causation: D. The Temporal and Causal Connection [33] It must also be established, of course, that the murderer did the killing “while committing or attempting to commit” theenumerated offence.

As pointed out in Paré, [R v Paré, (SCC), [1987] 2 SCR 618] this does not require “an exactcoincidence” in timing of the murder and the predicate offence, although there must be a “close temporal and causative link” (Paré, at p.629). As Wilson J. expressed the point in Paré, at p. 633: . . . it is the continuing illegal domination of the victim which gives continuity to the sequence of events culminating in the murder. Themurder represents an exploitation of the position of power created by the underlying crime and makes the entire course of conduct a“single transaction”.

This approach, in my view, best gives effect to the philosophy underlying s. [231(5)]. [110] For s. 231(5) to apply, the evidence must prove essential elements of the predicate offence, in this case sexualassault.

Sexual Assault [111] For an accused person to be found guilty of sexual assault, the Crown must prove the following essentialelements beyond a reasonable doubt: 1. that the accused intentionally applied force to the complainant; 2. that the complainant did not consent to the force that the accused intentionally applied; 3. that the accused knew that the complainant did not consent to the force that the accused intentionally applied; and 4. that the force that the accused intentionally applied took place in circumstances of a sexual nature. [112] The factual findings made above equally apply here, such that there is no doubt but that the accused intentionallyapplied force to the deceased.

As a matter of law, no person can consent to the injuries inflicted on the deceased. Nor, given the natureand number of the wounds, can there be any doubt but that Allison did not consent and Mr. Martell knew that she did not consent to theforce that he intentionally applied. So the only element in question is whether the force “applied took place in circumstances of a sexualnature.” [113] Sexual assault is primarily

an act of violence and domination and can occur in the absence of the offender’s

sexual gratification: see R v V.(K.B.), (SCC), [1993] 2 SCR 857. [114] Sexual assault is not defined in the Criminal Code. In R v Chase, (SCC), [1987] 2 SCR 293 at para 11 [Chase], McIntyre J. for the Supreme Court wrote that sexual assault is an assault “committed in circumstances of asexual nature, such that the sexual integrity of the victim is violated”: 11. Applying these principles and the authorities cited, I would make the following observations. Sexual assault is an assault withinany one of the

definitions of that concept in s. 244(1) of the Criminal Code which is committed in circumstances of a sexual nature, suchthat the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisitesexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to areasonable observer" (Taylor, supra [(1985), 1985 ABCA 51 , 44 CR (3d) 263], per Laycraft C.J.A., at p. 269).

The part of thebody touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all othercircumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant (see S. J.Usprich, "A New Crime in Old Battles: Definitional Problems with Sexual Assault" (1987), 29 Crim. L.Q. 200, at p. 204.) The intent orpurpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in consideringwhether the conduct is sexual.

If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, itmay be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive issimply one of many factors to be considered, the importance of which will vary depending on the circumstances. [115] As stated in Chase, the test of “whether the impugned conduct has the requisite sexual nature” is objective. [116] What is the evidence of sexual assault in this case? The victim’s pants were pulled down, exposing her buttocks.Her panties were torn or cut.

There were cuts to her inner thighs (Autopsy booklet photographs 37 – 38 and 59-61). And the handle of alarge knife was inserted into her rectum. [117] I must also consider the absence of evidence. The pathologist found no evidence of sexual activity, such assemen, and no evidence of trauma to the victim’s vagina or anus. [118] The evidence in this case is certainly suggestive of sexual assault.

Similar evidence has been found to constitutesexual assault in other cases. [119] In R v Ganton (G.C.) (1992), (SK CA), 105 Sask R 126 (CA) [Ganton], the SaskatchewanCourt of Appeal dismissed an appeal against a jury verdict of first-degree murder where the evidence of sexual assault “was evident fromthe fact that her clothes had been removed from the lower portion of her body and a beer bottle had been inserted into her vagina withsuch force it penetrated the abdomen wall.” (para. 2). [120] In R v Richer (1993), (AB CA), 82 CCC (3d) 385 (Alta CA) at 394 [Richer] affirmed by theSupreme Court of Canada at (SCC), [1994] 2 SCR 486, Fraser C.J.A. writing for the Alberta Court of Appeal stated thatstrangulation to achieve submission of the victim would be sufficient to constitute sexual assault for the purpose of s. 231(5)(

b) of theCriminal Code: In addition, I am also inclined to the view that murder by strangulation intended to force submission to sexual activity would, of and byitself, constitute a sexual assault on the victim, thereby rendering much of the debate on timing academic: see the definition of sexualassault in R. v. Chase (1987), (SCC), 37 C.C.C. (3d) 97, 45 D.L.R. (4th) 98, [1987] 2 S.C.R. 293 (S.C.C.), and R. v.Taylor (1985), 1985 ABCA 51 , 19 C.C.C. (3d) 156, 44 C.R. (3d) 263, [1985] 3 W.W.R. 415 (Alta.

C.A.). [121] In R v Muchikekwanape, 2002 MBCA 78 at paras 12 and 49-50, 166 CCC (3d) 144 [Muchikekwanape], theManitoba Court of Appeal dismissed an appeal against a jury verdict of first-degree murder where the evidence of sexual assault was thatthe victim, when found in the river, was missing clothing on her lower body and was found to have a laceration to her genital tract whichthe pathologist opined were indications of sexual assault either before or at the time of her death.

Steel J.A. in the majority judgmentwrote at paras. 64- 65: 64 The trial judge, however, took away from the jury the determination of whether the assault was sexual in nature. Although shedefined sexual assault as the application of force to another in the context of sexuality, she instructed them that the removal of someone’sshorts, thereby exposing genitalia, or the deliberate cutting of the vagina was necessarily a sexual assault. 65 Was this legal error?

This case is too close to that end of the spectrum where there is near legal certainty, to the criminal lawstandard, that the assault was a sexual assault for this instruction to amount to legal error. Although this is not a case of forcedintercourse as in Richer, forcibly removing someone’s clothing, leaving them naked from the waist down, and/or intentionally cuttingtheir genitals, in the absence of an explanation indicating otherwise, are acts violating the sexual integrity of the person so attacked.

Thisis especially so given the objective nature of the test and the fact that the desire for sexual gratification is not a necessary element for thefinding of sexual assault.

The trial judge committed no error when she told the jury that sexual assault was the application of force toanother in the context of sexuality and that either of these two acts in this context, if the jury found them to have occurred, amounted tosexual assault. [122] In R v Squires, 2005 NLCA 51, 199 CCC (3d) 509 [Squires], leave to appeal to the Supreme Court of Canadadismissed (2006), (SCC), 794 APR 251, the Newfoundland Court of Appeal dismissed an appeal against first-degreemurder.

The court at paras. 4 and 48 stated that the evidence of sexual assault was the exposure of the victim’s body by pulling down thevictim’s pants and underwear to mid-thigh and removing her shirt and bra to expose her breasts. [123] In R v Niemi, 2017 ONCA 720, 355 CCC (3d) 344 [Niemi], leave to appeal to the Supreme Court of Canadadismissed (SCC), the Ontario Court of Appeal dismissed an appeal against a jury verdict of first-degree murder. Thecourt at paras. 9 and 12 stated that the evidence of sexual assault was the partial removal of the victim’s clothing.

There was no evidenceof injury to her vagina or anus and no semen was found. The court went on at para. 84 to find the evidence of the removal of clothing and

tracing along the bottom of one breast sufficient to constitute a sexual assault: [84] Indeed, objectively, Mr. Niemi’s acts were sufficient to constitute a sexual assault. Ms. Watson’s sweater and bra were cut open,exposing her breasts. One of her breasts was traced along the bottom in an apparent sexual mutilation. Her underwear was removed,exposing her sexual organs.

Without question, subject to the significance, if any, of the post-mortem nature of some or all of these acts,there was compelling evidence that there was a carnal or sexual content to this horrific assault. [124] Having regard to these cases, I find that the evidence does establish a sexual assault. The strangling of the victimto overcome resistance constitutes sexual assault in these circumstances. The evidence of the knife wounds on the inner thighs is similarto what was viewed in Niemi as apparent sexual mutilation.

Even leaving these aside, on an objective standard, pulling down someone’spants to expose their private parts and inserting a foreign object in their rectum without their consent is a gross violation of their sexualintegrity. The reaction of the victim’s brother, Leon Witchekan, on finding his sister’s body in the bathroom was to immediately pull herpants up, demonstrating a normal human respect. As he said in his testimony, “It’s not what I want to see.” [125] Does it matter that the knife handle was inserted in the victim’s anus rather than her vagina? No.

Sexual integrityis not confined to genitalia. [126] In Richer, a jury verdict of first-degree murder was upheld under s. 231(5)(

b) where the death was inflicted by ligature strangulation during anal rape. [127] I find that Allison was incapable of resistance when the knife handle was inserted because she was either dead ordying. Does it matter that I am unable to determine whether the victim was alive or dead when the handle of the knife was inserted in heranus? No. It does not matter for any one of three reasons. [128] First, the insertion of the knife handle is only one piece of the evidence of sexual assault. The cuts to the innerthigh were inflicted while the victim was alive. [129] Second, in Ganton, Wakeling J.A. for the Saskatchewan Court of Appeal held that s. 231(5)(

b) applied to supporta finding of first-degree murder where it was unclear whether the victim was alive or dead when the sexual assault occurred: [15] … It was not necessary to prove the precise time of death so as to able to establish that the sexual assault occurred prior to death,it was only necessary to show that the sexual assault and death were part of a continuous sequence of events…. [130] Ganton was endorsed in R v MacKay, 2004 SKCA 24 at para 17, 241 Sask R 238, appeal dismissed 2005 SCC75, [2005] 3 SCR 607, and in R v Daley, 2006 SKCA 91 at para 92, 285 Sask R 225 and by other courts of appeal.

For example, Richerat 394; R v Plewes, 2000 BCCA 278 at para 33, 144 CCC (3d) 426; Muchikekwanape at paras 79 and 82; R v Westergard (2004), (ON CA), 185 OAC 281 (Ont CA) at para 33, leave to appeal to the Supreme Court of Canada refused; Squires at paras55 and 57; and R v Salomonie, 2020 NUCA 1 at para 45. [131] In Muchikekwanape at para 77, Steel J.A. in the majority judgment wrote: 77 The underlying offences listed in s. 231(5) of the Code all involve the unlawful domination of victims.

The Legislature intendedthat where an accused exploits this position of power and commits murder in the process of such exploitation, the crime warrants the increased stigma and sentence attached to first degree murder. See R. v. Nette (2001), 205 D.L.R. (4th) 613, 2001 SCC 78, at para. 62,per Arbour J. I agree that the Legislature envisioned the murder taking place either after or during the commission of the underlyingoffence.

In terms of sexual assault, if the only sexual indignity were completely separate and occurred after the death of the victim, thenthe charge would be sexual interference with a dead body and not sexual assault. However, the

section also uses the phrase “whilecommitting.” Therefore, where the underlying offence and the murder are so inextricably intertwined that they form a single, continuoustransaction, the requirements of s. 231(5) will be satisfied. To say otherwise would involve courts in the macabre exercise of attemptingto determine by minutes and seconds when life flowed out of the victim. [132] Third, s. 231(5) applies to an attempt to commit sexual assault.

So it is sufficient if the purpose of the violence isto subdue the victim for the purpose of inflicting a sexual assault, even if the sexual assault occurs after death. [133] In Niemi at para 49, the Ontario Court of Appeal, while questioning the reasoning in Ganton and followingdecisions, still held that an attempted sexual assault will suffice as the underlying offence: b. Attempted Sexual Assault [49] Under s. 231(5)(

b) an attempted sexual assault will suffice as the underlying offence. It is entirely possible to attempt to commita sexual assault with a corpse, since under s. 24(1) of the Criminal Code, the impossibility of actually committing an attempted offenceis no answer. [50] To be guilty of an attempted sexual assault, the accused must intend to commit the offence of sexual assault, and must engage inan act that goes beyond preparation and is not too remote from the consummation of the crime: Criminal Code, s. 24. If this happens, s.231(5)(

b) can lead to a first degree murder conviction, even if the victim expires before the sexual activity commences. [51] This avenue to a first degree murder conviction is available to the Crown, in my view, where an accused person believes adeceased victim to be alive, or is not certain whether the victim is alive when the sexual activity is initiated.

If they know the victim maybe alive but nevertheless proceed with the sexual activity, they are attempting a sexual assault. [52] The claim that the mens rea for attempted sexual assault can be met where an accused person is not certain whether the victim isalive when the sexual activity is initiated does not incorporate notions of recklessness into the law of attempt, contrary to the leadingauthority of R. v. Ancio, (SCC), [1984] 1 S.C.R. 225. The accused person in such a case is not simply intending to take

an unjustified risk that a prohibited consequence may occur. They are intending to sexually degrade their victim, dead or alive. Sincethey are intending to sexually violate their victim even if alive, they have the requisite mens rea for a sexual assault, which will sufficefor an attempted sexual assault if the victim happens to be dead. The precise time of death of the victim is therefore moot for thepurposes of s. 231(5)(

b) in such a case. Accused persons that intend to sexually violate their victim, dead or alive, will either havesexually assaulted their victim or they will have attempted to do so. c. Sexual Assaults Underway when Death Occurs [53] The easiest example of an appropriate s. 231(5)(

b) first degree murder conviction based on the actual offence of sexual assaultwhere the sexualized conduct commences after death, arises where the accused person initiates the violence that causes death for thepurpose of facilitating sexual domination. . . . [59] The instant point, of course, is that where the victim dies at the hands of the accused before the accused commences the sexualizedconduct that he intended all along, the fact that it is impossible to sexually assault a corpse will not prevent a s. 231(5)(

b) first degreemurder conviction. The victim may be dead when the sexualized conduct occurs, but they were alive when the sexual assaultcommenced. . . . [88] As well, a first degree murder finding based on an attempted sexual assault would also have been reasonable. This is not a casewhere a victim of murderous violence is obviously dead when the sexualized misconduct begins, and the jury was not required to treatMr. Niemi’s claim that he had “finished the job” of killing Ms. Niemi by strangling her as credible evidence that he “knew” she wasdead immediately after the strangulation ceased. Even if Ms.

Watson happened to be dead when the sexualized conduct began, given theimmediacy of the transition from murderous violence to sexualized misconduct, it was open to the jury to infer from Mr. Niemi’sadmitted conduct that he intended to engage in his sexualized conduct, whether Ms. Niemi was dead or alive. [134] Although staging was not raised by the defence as an alternate explanation, I did consider it a possibility. Wouldit make any difference if the evidence of sexual assault was staged? No.

Whether there was a sexual assault is determined on anobjective standard, not on the subjective intent of the accused. [135] In both Squires at para 51 and Niemi at para 79, the accused had claimed in defence that they had staged themurder scene to look like a sexual assault. This defence was rejected in both cases. [136] In Niemi at paras 81 - 83, Paciocco J.A. wrote: [81] I will address this ground of appeal, however, by engaging Mr.

Niemi’s claim that the evidence is incapable of enabling areasonable jury to conclude that a sexual assault occurred. [82] First, it is helpful to put aside the statements made by Mr. Niemi in which he denies a sex crime and a sexual purpose. Mr.Niemi’s denials that this was a sex crime are not determinative. An objective test is used to identify whether an assault violated thesexual integrity of the victim. The base issue is whether, in all of the circumstances, a reasonable observer would conclude that there is asexual or carnal context to the intentional acts committed by Mr. Niemi, not how Mr.

Niemi would characterize them: Chase, at p.302; R. v. Taylor, 1985 ABCA 51, 19 C.C.C. (3d) 156, at p. 269. While the presence of a sexual intent can inform this objectivedetermination, if the assault by its nature interferes with the sexual integrity of the victim it will be a sexual assault regardless of theintent or purpose of the offender: R. v. V.(K.B.), (SCC), [1993] 2 S.C.R. 857.[5] [83] Similarly, Mr. Niemi’s claim that he engaged in the sexual acts to throw off investigators does not assist his case.

This harms it.He is acknowledging that he meant to do acts that would make others conclude objectively that the assault had a sexual or carnal context.This does not assist his claim that it is not objectively reasonable to find that the murder did not have a sexual or carnal context. [137] Finally, were the murder and the sexual assault sufficiently closely connected, both temporally and causally?

Yes,the fatal assault and sexual assault were a single, continuous event. [138] In Niemi at para 69, Paciocco J.A. wrote: [69] Where the murder and sexual assault are sufficiently intertwined to constitute a single transaction, the underlying principle of s.231(5)(

b) is also clearly honoured. As Fraser C.J.A. put it in Richer, at para. 14: [W]hen the required linkage is found to exist, it is the two crimes – sexual assault and murder – committed together, regardless of theorder, which represents the ultimate exploitation of the position of power over a victim. [139] I find that the violence that caused death and the sexual assault occurred in a continuous act in the space of aboutten minutes, from around 4:50 a.m., when the upstairs neighbours were awakened and 5:00 a.m. Mr. Martell was making phone calls by5:02 a.m., so the critical events had occurred before then.

This is sufficiently close in time. [140] I also find a sufficiently close causal connection. The infliction of the cuts to the inner thighs occurred during thefatal assault. The fatal assault ended any resistance, allowing Mr. Martell to drag the body into the bathroom and insert the knife hanldeas a final act of indignity. [141] Having regard to the above analysis, I am satisfied that the death occurred during the commission or attemptedcommission of a sexual assault. I am satisfied that the Crown has proved all elements of first-degree murder beyond a reasonable doubt.

As such, I must find the accused guilty as charged.

Verdict [ 142 ] Ivan Roberto Martell, please stand. I find you guilty of murder in the first degree as charged. J. D.N. ROBERTSON