R v. Nowdlak, 2011 NUCJ 28

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R v. Nowdlak, 2011 NUCJ 28 Date of Judgment (YMD): 20110916 Docket Number: 08-09-70 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Jimmy Nowdlak ______________________________________________________________ Before: The Honourable Mr. Justice E.

Johnson Counsel (Crown): Beth Miller Counsel (Accused): Andrew Mahar Location Heard: Iqaluit, Nunavut Date Heard: August 22 and 24, 2011 Matters: Criminal Code, ss. 229 , 230 and 235(1) ________________________________________________________________________ REASONS FOR JUDGMENT ________________________________________________________________________ (NOTE: this document may have been edited for publication) Restriction on Publication: By court order made under

section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.”

By court order made under

section 539, “the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time … the trial is ended.” Amended Decision: An amended decision was issued on September 16, 2011; the corrections have been made to the text and the amendment is appended to this judgment. I. INTRODUCTION [ 1 ] The victim was injured during a sexual assault in Iqaluit. She was treated at hospitals in Iqaluit and Ottawa. The accused was committed to stand trial for sexual assault.

Approximately one year later, the victim died from her injuries and the accused was charged with first-degree murder. [ 2 ] At the preliminary inquiry for the first-degree murder charge, defence counsel argued that the accused should only be committed to stand trial for manslaughter. The Crown argued that the accused should be committed to stand trial for first-degree murder. [ 3 ] Judgment was reserved. II. FACTS [ 4 ] On January 30, 2009, the accused Jimmy Nowdlak was charged with an aggravated sexual assault against the middle-aged victim on September 8, 2008.

During the course of the sexual assault she was struck in the face and suffered two fractures in her jaw and one on her cheekbone. The victim’s face and wrist were bruised and swollen and she had at least one contusion or bruise on her brain. She also had an acute subdural hemorrhage to her brain and a large area of bleeding between her scalp and skull. [ 5 ] On admission to hospital in Iqaluit the victim had normal neurological function with a Glasgow coma scale score of 15. Shortly after, she experienced a major deterioration in her neurological function from the head injuries.

She was transferred to a hospital in Ottawa with a diagnosis of traumatic brain injury. After initial treatment she was transferred to an outside healthcare facility. Her condition was reviewed by neurosurgery on March 24 and she was noted to have a severe head injury with grossly abnormal mental state. She also had right hemiplegia (paralysis of right side of body) and expressive aphasia (loss of ability to speak). She was readmitted to hospital on July 26 because of difficulty in swallowing.

She was again admitted to hospital on August 17 suffering from pneumonia and died on August 29, 2010, from chronic aspiration. [ 6 ] A preliminary inquiry on the aggravated sex assault charge was held on October 21 and 22, 2009, and the accused was committed to stand trial. [ 7 ] After the victim’s death the accused was charged with first-degree murder. The preliminary inquiry into this charge was held on

August 22 and 24, 2011. The defence agreed that all the evidence heard on the preliminary inquiry into the sexual assault could be usedin the murder preliminary. In addition to the preliminary inquiry transcript from the sexual assault, the Crown called evidence from Dr.John Woulfe (Woulfe) and Dr. Christopher Milroy (Milroy) [8] The victim’s medical history included one fairly large stroke in 2001 and several minor ones. She also had heart valve diseaserelated to a clotting disorder that required her to take the blood-thinning drug Warfarin.

Despite her medical problems, the victim wasable to conduct a reasonably normal life prior to the assault. [9] All of the brain damage was older than two months, so her death was not caused by a new, acute condition. No new strokes wereevident in the CT scan of the victim’s brain. However, while the contusion was highly unlikely to have caused a stroke, the history ofstrokes and the clotting disorder may have made her brain less resilient to the subsequent trauma.

The use of Warfarin may haveincreased bleeding somewhat, but overall Milroy believed that the “injuries are such that they could have had the same effect onsomebody who was previously fully healthy”. [10] Milroy found that the victim died of chronic aspiration due to head injury. This means that a traumatic injury to her braincompromised her ability to swallow to such an extent that food entered her airway and lungs on multiple occasions causing infectionsthat eventually lead to her death. III. Issue [11] Should I commit the accused to stand trial for manslaughter or first-degree murder? A.

Applicant’s argument [12] Relying on R v Martineau, [1990] SCR 633, and R v Sit, (SCC), [1991] 3 SCR 124, [Martineau] the Crownsubmits that for the Court to commit the accused to stand trial for first-degree murder, the Crown must lead some evidence of thefollowing: (

a) The accused caused the death of the victim; (

b) The accused caused the death of the victim by means of an unlawful act; (

c) The accused either meant to cause the death or meant to cause bodily harm that he knew was likely to cause death and was recklessabout whether or not it caused death; (

d) The accused committed one of the underlying offences listed in section 231(5) of the Criminal Code [Code]; (

e) The underlying crime listed in section 231(5) and the murder were part of the same transaction. [13] The Crown argues that the only point in contention is the third one. It argues the number of blows described by the coroner satisfiesthe low threshold for a committal to stand trial from United States of America v Shephard, [1977] 2 SCR 1067, (SCC)[Sheppard]. Milroy described the number and the force of the blows needed to cause the injuries suffered by the victim.

In his opinion,the broken facial bones and the ultimately fatal subdural hematoma resulted from several blows to the victim’s head. [14] A reasonable jury properly instructed could infer from this evidence that the accused had actual knowledge of the likelihood of thevictim’s death. B. Defence argument

[15] Defence counsel agrees the Crown has satisfied the Sheppard test on all of the factors described by the Crown except for numberthree. The accused does not object to a committal on manslaughter and acknowledges, for the purpose of the preliminary inquiry, that theassault contributed to the victim’s death. However, he argues that the accused should not be committed for first-degree murder. [16] Defence counsel argues that a properly instructed jury could not reasonably infer the requisite subjective foreseeability of death andintention to kill from the blows inflicted by the accused.

R v Latoski, (ON CA), [2005] OJ 3565 (OCA), 200 CCC(3d) 361 [Latoski]; R v Patterson, (ON CA), [2006] OJ 361 (OCA), 205 CCC (3d) 171 [Patterson]; and R v Rodrigue,[2007] 223 CCC (3d) 53 (YCA), 2007 YKCA 9 [Rodrigue], indicate that the Crown must offer some evidence beyond theaccused’s foresight of the possibility of death. It must offer some evidence the accused understood that his actions would probably leadto death. [17] Furthermore, defence counsel argues there is no evidence that the accused intentionally applied force to the victim’s skull.

To meetthe subjective forseeability test, the accused would have had to have known that the victim’s head was going to hit the ground with forceand that her brain was already compromised by the strokes and medication. C. Crown reply [18] The Crown noted that it is not the function of a judge at a preliminary inquiry to weigh evidence. The Crown argues that to acceptthe defence argument this court must weigh evidence that should be left to a properly instructed jury. D.

Analysis [19] The arguments focus on the subjective forseeability required for subsection 229 (a)(ii) as articulated in Martineau and raise threesub-issues. (

a) What is the appropriate legal test for subjective foreseeability? (

b) What factual inferences can a properly instructed jury reasonably make from the evidence? (

c) Could a jury reasonably infer from the evidence and that the accused could subjectively foresee that the bodily harm he intentionallyinflicted would likely cause the death of the victim? (

i) Legal test for subjective foreseeability [20]

Section 229 of the Code defines murder. It states: 229. Culpable homicide is murder (

a) where the person who causes the death of a human being (

i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not; (

b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause hisdeath, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding thathe does not mean to cause death or bodily harm to that human being;

[21]

Section 231 of the Code elevates second-degree murder into first-degree murder where death is caused by a person whilecommitting an aggravated sexual assault contrary to

section 273 of the Code. It states: 231.

(1) Murder is first-degree murder or second-degree murder.

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

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

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). [22] In Latoski, Laskin J.A. considered whether the trial judge properly instructed the jury on the recklessness component of

section 229(a)(ii). He noted that the part of the charge looked at in isolation was wrong stating: [16] Looked at in isolation, the trial judge's direction on recklessness appears to be wrong. In R. v. Czibulka (2004), (ON CA), 189 C.C.C. (3d) 199 at paras. 66-68 (Ont. C.A.), leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 502, Rosenberg J.A.affirmed what the Supreme Court of Canada had said over a decade earlier in R. v.

Cooper, (SCC), [1993] 1 S.C.R.146, 78 C.C.C. (3d) 289 at 295: "[I]t is not sufficient that the accused foresee simply a danger of death; the accused must foresee alikelihood of death flowing from the bodily harm that he is occasioning the victim. [23] In rejecting a similar argument in Patterson, Laforme J.A. stated: [40] In Czibulka, Rosenberg J.A. held that it is an error for a trial judge to refer to a "danger" that conduct could bring about death whendefining recklessness in connection with s. 229(a)(ii).

In this context, the risk of death embodied in the terms "danger" and "likelihood"are not of the same magnitude. It is not sufficient that a person accused of murder simply foresee a danger of death; the person mustforesee a likelihood of death flowing from the bodily harm that he occasions to the victim (paras. 62-70). [24] In commenting on the reckless requirement of

section 229 (a)(ii) in Rodrigue, Finch C.J. stated: [82] The Oxford English Dictionary definition of "reckless" is "Careless in respect of the consequences of one's actions; lacking inprudence or caution" or "Having no care or consideration for ... another." It can also mean showing neglect towards something orsomeone. However, within the meaning of s. 229(a)(ii), reckless refers to the foreseeability of a likely, as opposed to simply a possible,consequence flowing from the bodily harm that he is occasioning the victim: R. v. Cooper, (SCC), [1993] 1 S.C.R. 146at 155, 78 C.C.C. (3d) 289.

In other words, within the legal definition of the mental element for murder, reckless is synonymous with asubstantially subjective state of mind, and not with imprudence or carelessness. As explained by Cory J. (for the majority) in Cooper (atpp. 154-155): The aspect of recklessness can be considered an afterthought since to secure a conviction under this

section it must be established that theaccused had the intent to cause such grievous bodily harm that he knew it was likely to cause death. One who causes bodily harm that heknows is likely to cause death must, in those circumstances, have a deliberate disregard for the fatal consequences which are known tobe likely to occur. That is to say he must, of necessity, be reckless whether death ensues or not.

[ 25 ] I am satisfied from these authorities that the Crown must offer some evidence that the accused subjectively foresaw that his intentional assault on the victim was likely to cause her death rather than that the assault could possibly cause her death. [ 26 ] Likely is defined in the Oxford English Dictionary as: “Having an appearance of truth or fact; that looks as if it would happen, be realized, or prove to be what is alleged or suggested; probable.” [ 27 ] Another way of stating the test is therefore whether the accused foresaw that it was probable his actions in assaulting the victim would cause her death. (ii) Inferences from evidence [ 28 ] Milroy testified that that the same outcome could have resulted from these injuries even if the victim was completely healthy.

This means that the Defence argument about the accused’s lack of foresight about the victim’s health problems is academic. [ 29 ] Crown counsel argues that a jury could reasonably interpret Milroy’s evidence to infer that the broken facial bones and ultimately fatal subdural hematoma resulted from several blows delivered to the complainant’s head.

From this the jury could reasonably infer that, as she described it: “Here, the accused punched or stomped the complainant repeatedly in the head, causing a broken cheekbone, two breaks to the jaw, a large cephalohematoma and a subdural hemotoma.” [ 30 ] Crown counsel’s use of the word “stomped” raised the possibility that a jury could infer that the accused used his boot on the victim’s face while she was on the ground.

If this occurred then it is possible the back of her head could have been impacted in such a way to cause the head injury. [ 31 ] Defence counsel interpreted Milroy’s evidence somewhat differently than the Crown. He argues that Milroy agreed that the brain injury likely occurred when the victim’s head struck the ground or when she was taken forcibly to the ground.

There were no skull fractures and no indication of any blunt force trauma to the skull area. [ 32 ] Defence counsel argues a jury could reasonably infer from Milroy’s evidence that what occurred was two punches to the face and a forcible tackle. [ 33 ] Is the evidence capable of supporting these inferences? Milroy testified in examination-in chief at p 125-127: [L5] Q…In your opinion, how many impacts would be required to produce the fracture in both the left and right side of the jaw? A.

One impact can cause a fracture to the left and right sides of the lower jaw because if you have a sideways impact the way the jaw is set up it will fracture on both sides. Q. So there is then one impact there? A. Yes. Q. Could there have been more than one – A. And then there is an impact -- there could have been more than one impact but one could account for those findings with one

impact. Q. Then there was the fracture of the cheekbone? A. That is correct, on the left side. That could be a separate impact to the jaw. If, though, the person was stamped on – so a blow with ashod foot – that impacted both the cheekbone and the jaw at the same time, it is possible that you have one single impact but it wouldrequire -- it would really require a stamp to the head. Otherwise you can get these with heavy punches or they could be kicks or theycould be a blow with another implement. Q.

Typically when you see a broken zygomatic arch that isn’t caused by stamping, how many impacts are required to break it? A. Well, it has to be one forceful impact. It could always be more than one. [L. 8] Q. And, finally there is the blood clot on the left side of her brain. In your opinion, how many impacts would be needed to causethat? A.

Well, you can get that by one impact if the person was falling down, so if, for example, they were struck down, you can get impact tothe back of the head that causes subdural bleeding and bruising in the pattern--in the brain in the pattern we see here so -- and that’sactually a more typical way of getting the head injury than if the head is on the ground and then the person is struck, but it could be thatthe person was on the ground and then the head was impacted. [34] In cross-examination he testified at p 134: [L.19] Q. Okay.

But what you can say is that what’s most likely in this case is that there were at least two punches to the face or onestomping with a foot would appear to indicate the injury that you are looking at? A. To have caused the facial injuries, yes. [35] I am not sitting as a trial judge and it is not my role at a preliminary inquiry to weigh the evidence.

However, as noted by KilpatrickJ. in R v Ammaklak, 2006 NUCJ 22, 2006 CarswellNun 26 [Ammaklak], there may be some limited weighing of evidence where there isan inferential gap between the evidence and the matter to be established by the Crown: Where there is direct evidence on each essential element of the offense, the matter must be left to the jury to decide as the trier of fact. Ifthe Crown’s case turns on circumstantial evidence, however, I must engage in a limited weighing of the evidence because there is aninferential gap between the evidence and the matter to be established by the Crown.

I must determine whether the evidence relied uponby the Crown is reasonably capable of supporting the inferences to be drawn from the circumstantial evidence. I must allow the matter togo the jury if I am satisfied that a reasonable inference may be drawn from the evidence upon which a properly instructed jury couldreasonably convict. This is the test developed by the Supreme Court of Canada (S.C.C.) in the case of R. v. Arcuri, 2001 SCC 54,[2001]2 S.C.R. 828, 157 CCC (3d) 21. [36] A helpful

summary of the legal rules to be used in applying Arcuri is set out in R. v. Newman [2010] O.J. No.4627, 2010 ONSC6009 where T.L. Archibald J. stated: [29] In conducting this limited weighing, I must consider the reasonable inferences that could be drawn from the circumstantialevidence. This does not include a consideration of inferences based upon speculation. An inference which does not flow reasonably andlogically from established facts cannot be made, and amounts only to conjecture and speculation: R. v. Morrissey (1995), (ON CA), 97 C.C.C. (3d) 193 at 209 (Ont. C.A.); R. v.

Munoz (2006), (ON SC), 86 O.R. (3d) 134 at paras. 23-31 (Sup. Ct.). The difference between permissible inference drawing and impermissible speculation is discussed at page 43 of JusticeWatt's 2010 Manual of Criminal Evidence (Toronto: Thomas Reuters Canada Ltd.): Circumstantial evidence is any item of evidence, testimonial or real, other than the testimony of an eyewitness to the material fact. It isany fact the existence of which the trier of fact may infer the existence of a fact in issue ... Where evidence is circumstantial, it is criticalto distinguish between inference and speculation.

Inference is a deduction of fact that may logically and reasonably be drawn fromanother fact or groups of facts found or otherwise established in the proceedings. There can be no inference without objective facts fromwhich to infer the facts that a party seeks to establish. If there are no positive proven facts from which an inference can be drawn, therecan be no inference, only impermissible speculation and conjecture.

[ 37 ] The established facts are that the victim suffered a fractured jaw and cheekbone after being sexually assaulted by the accused. She also suffered a cephalohematoma and a subdural hematoma on the top of her head. It was the latter injury that caused her death. The skull was not fractured and there is no evidence of blows to the head. There was no evidence that the victim was kicked or stepped on with a boot. [ 38 ] Milroy did not know how the fatal blows occurred and offered two alternative explanations based on his professional experience.

The most likely or probable explanation was that the victim was struck in the face by two to four blows and then hit her head when she fell to the ground. The other possible but less probable explanation was that the victim was struck in the face with a foot when she was on the ground.

In the latter situation the injury could have happened when the head was driven into the ground. [ 39 ] Milroy’s also commented on whether the punches thrown by the accused could have impacted the area of the head where the fatal injuries occurred. [ 40 ] At p 126-127 of Milroy’s examination-in-chief he testified as follows: [L. 8] Q. And, finally there is the blood clot on the left side of her brain. In your opinion, how many impacts would be needed to cause that? A.

Well, you can get that by one impact if the person was falling down, so if, for example, they were struck down, you can get impact to the back of the head that causes subdural bleeding and bruising in the pattern--in the brain in the pattern we see here so -- and that’s actually a more typical way of getting the head injury than if the head is on the ground and then the person is struck, but it could be that the person was on the ground and then the head was impacted. So I would say that there was a minimum -- theoretically it all could be one but I don’t think that that is very likely.

I think that there has to be a minimum of two, likely two blows to the head plus one impact as the person falls over. Q. So what I hear you saying is three impacts to the head or two blows and one impact? A. Well, at least -- yes, two blows and one impact. What I would just add is that the CT scan also described an entity called a large cephalohemotoma. This is in my paragraph 6, page 4.

Cephalohemotoma’s are bleeding under the scalp but above the skull, and that would suggest that there has been further impact to the head because you have got basically -- and I’m showing basically bruising under the surface of the skull in this area, yes, and that would suggest you’ve probably got more impacts, another two maybe, so I think if we said -- I mean, it does overall suggest several impacts to the head area to cause these injuries. [ 41 ] At p 134-136 of Milroy’s cross-examination, he qualified his testimony about the cause of the brain injury as follows. [L-25] Q. Yes.

Now, when you were talking about the parietal injury to the top of the head, you indicated that that sort of injury was more commonly associated with basically falling backwards onto the ground or being taken to the ground, but that that would end up at the back of the head as opposed to the top; is that right? A. Yes. An impact to the back of the head can cause bruising to the front of the brain -- Q. In a contracoup injury? A. -- known as what’s called – I was about to say a contracoup injury, correct. Q.

But you don’t see any evidence here of a contracoup injury; this is an injury you would presume to be in the actual locus of the trauma to the head; is that fair? A. No, no, we do see evidence of a contracoup injury in the sense that we have bruising of the frontal lobe and the temporal lobe of the brain. That’s actually quite typical contracoup. What is not described is an impact to the back of the head, in other words, to the occiput (ph) but that may not be visible.

Q. So if she had fallen hard -- A. -- (indiscernible) to the clinicians -- Q. If she had fallen hard on a relatively sandy surface or something like that, you could quite easily see this injury; is that fair? A. It’s possible, yes. Q. Okay. Because, again, you don’t see any indications of an actual skull fracture to either the front of the head or as you indicated to -- any major blow to the back of the head, which you would have A.

Not necessarily, but what I have said - and I’m agreeing with you I think - is that an impact to the back of the head from a fall, however the fall was produced, could cause this pattern of brain injury. Q. Okay. And the brain injury in your assessment is what, in fact, killed her, not the blows to the face? A. It’s the brain injury, the fractures of the skull -- sorry, the fractures of the facial skeleton are indications of blows but that’s not what killed her.

They would have healed at the time of her death. [ 42 ] While Milroy did state in his examination-in chief, “several impacts to the head area”, he did add the more general statement “for these injuries”.

In cross-examination he clarified that the word “blows” was in reference to the face. (iii) Could a jury reasonably infer from the evidence that the accused could subjectively foresee that the bodily harm he intentionally inflicted would likely cause the death of the victim? [ 43 ] The Crown argues that Milroy’s evidence can be interpreted to suggest that the accused stomped on the victim while she was on the ground or that he landed some blows to head area where the fatal injury occurred.

The Crown argues a reasonable jury properly instructed could infer from this evidence that the accused had actual knowledge of the likelihood of the victim’s death. [ 44 ] Defence counsel conceded that it was possible the accused could have foreseen that his actions could have caused the victim’s death. However the legal test coming Latoski, Patterson and Rodrigue, is that the accused must have had some foresight of the probability of death rather than just the possibility of death. Any time someone is attacked physically and punched in the face there is a possibility death will result.

However, every attack does not result in an objective or subjective foreseeability of death. In this case there is no evidence of a weapon being used and no evidence of repeated kicks to the head. [ 45 ] Defence counsel also argues that to subjectively foresee death the accused would have to know the victim’s head was going to be striking the ground.

Since the accused likely tackled the victim after punching her in the face and there is no evidence that the accused intentionally applied force to the victim’s skull, he could not know that the tackling would likely cause the victim’s death. [ 46 ] I interpret Milroy’s evidence to be that there were up to four blows to the face and one impact injury to the head. While it was possible the victim was “stamped’ in the face it was not likely or probable. He also testified that it was likely or probable that the head injury occurred when the victim’s head hit the ground after being struck in the face.

This could have occurred as a result of falling to the ground after being struck in the face or being forcibly taken down to the ground or tackled. [ 47 ] The legal test I must apply is whether a jury could reasonably infer from this evidence that the accused knew that his actions would probably cause the victim’s death. I am satisfied that the key parts of Milroy’s evidence were speculation on the established facts. The most probable explanation points to lack of subjective foresight by the accused that his actions would likely kill the victim.

I conclude that a jury could not reasonably infer from this evidence that the accused could subjectively foresee that his actions would likely cause the victim’s death. IV. CONCLUSION [ 48 ] This is not a case like Ammaklak where Kilpatrick J. was faced with overwhelming circumstantial evidence to support the inference

that death was a likely consequence of the actions of the accused. Here there is no hard evidence that the accused intentionally applied the fatal blow to the head that caused the victim’s death. However, he set in motion the chain of causation that led to the victim’s death by assaulting her to satisfy his sexual urges.

When he did that he had subjective foresight that she might fall to the ground and hit her head but not that she was likely to die from her head hitting the ground. [ 49 ] Accordingly, I decline to commit the accused to stand trial for first-degree murder and commit him to stand trial for manslaughter. Dated at the City of Iqaluit this 16th day of September, 2011 ______________________ Mr. Justice Earl D.

Johnson Nunavut Court of Justice _______________________________________________________________ Amendment of the Reasons for Judgment Reserved of The Honourable Justice Johnson ________________________________________________________________ A ban on publication of all evidence, in accordance with sections 486.4 and 539 of the Canadian Criminal Code has been added to the frontispiece of this judgment. Please replace the frontispiece in your hard copy of the judgment.