R. v. Muckpaloo, 2021 NUCJ 33

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Muckpaloo, 2021 NUCJ 33 Date: 20210223 Docket: 01-18-07 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Andrew Muckpaloo ________________________________________________________________________ Before: Madam Justice Cooper Counsel (Crown): G. Lyndon M. Tooke Counsel (Accused): I. Neuman N. Sittmann Location Heard: Arctic Bay, Nunavut Date Heard: February 23, 2021 Matters: Decision on Non-Suit Application REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication) DISCLAIMER PAGE Anonymized Judgment Disclaimer: This judgment has been anonymized to comply with legislativerequirements or at the discretion of the authoring Justice to protectvulnerable parties. Letters have been assigned at random. I. INTRODUCTION [1] Mr. Muckpaloo is charged with second degree murder in relation to Silas Barnabas. At the conclusion of the Crown's case theDefence brought an application for dismissal in relation to the charge of murder.

The Defence concedes that there is sufficient evidencefor the matter to proceed to trial on a charge of manslaughter, however they submit that the Crown has failed to provide any evidence onthe essential element of intent as it relates to murder. II. TEST [2] The test for an application to dismiss at the conclusion of the Crown's case, commonly referred to as a non-suit motion, is set outby the Supreme Court of Canada in R. v. Monteleone, , where the court stated: The law on this subject is well settled. In United States of America v.

Shephard, (SCC), [1977] 2 S.C.R. 1067, Ritchie J.,speaking for the majority of the Court, said, at p. 1080: I agree that the duty imposed upon a "justice" under s. 475(1) is the same as that which governs a trial judge sitting witha jury in deciding whether the evidence is "sufficient" to justify him in withdrawing the case from the jury and this is to be determinedaccording to whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty.

The"justice", in accordance with this principle, is, in my opinion, required to commit an accused person for trial in any case in which there isadmissible evidence which could, if it were believed, result in a conviction. [Emphasis added.] [3] The judge hearing the application for dismissal is not to weigh the evidence or test the evidence as to its quality or reliability,except to the extent of determining whether, in a circumstantial case, a properly instructed jury could make the necessary inferencesfrom the evidence to reach a verdict of guilt. III. ELEMENTS OF MURDER [4]

Section 229 of the Criminal Code provides:

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 as to whether death ensues or not. [ 5 ] The mens rea for murder is a specific intent to cause death to the victim or an intent to cause bodily harm of such seriousness that the accused knew the injuries were likely to cause death yet persists in perpetrating bodily harm regardless of the risk. IV.

SUMMARY OF THE EVIDENCE [ 6 ] A brief overview of the evidence called by the Crown is required. [ 7 ] The accused and his girlfriend, S.W., were at F.G.'s house drinking home-brew or moonshine with F.G. A dispute arose between the accused and S.W. that found them outside the residence. Several witnesses testified to seeing the accused assault S.W. It was around this time that Silas appeared at F.G.'s house.

It is not clear if S.W. went to get him or if someone else notified him as to what was happening, but it seems that he came in response to the assault on S.W. [ 8 ] Silas, the accused, and F.G. found themselves inside the residence. The evidence is not clear as to where S.W. was, and it is not relevant for the purposes of this application. [ 9 ] Silas and the accused got into a physical fight in the dining room/living room area of the house. The fight was described by F.G. as them wrestling around on the floor.

The fight stopped and Silas went to sit on the arm of the couch in the living room and the accused went to the kitchen. The kitchen/dining/living room area is one large room and everyone was visible to each other. [ 10 ] The accused then approached Silas in the dining/living room area and the two of them argued and started fighting again. The fight was again described as the two of them on the floor wrestling around. F.G. tried to stop the fight.

He described placing his forearm around the shoulders and upper chest of the accused and being bit on the forearm by the accused. [ 11 ] Eventually the fight stopped and Silas and the accused separated. F.G. noticed blood on the floor and thought that it was coming from the noses of Silas and/or the accused, although neither one had blood on their face. F.G. told them to stay, as the police were coming. However, when the police did not arrive he told them to leave.

He said that Silas left first, followed by the accused. [ 12 ] This is in contrast to the evidence of several other witnesses who testified that they went to F.G.'s house out of concern and found Silas on the floor of the house, with a substantial amount of blood on the floor. Silas was alive and said that he needed help. [ 13 ] Meanwhile, the accused went to the residence where S.W. was.

He gave her a knife and told her that he had stabbed Silas. [ 14 ] The forensic pathologist called by the Crown testified that Silas had a stab wound in his back, which entered in an inward and downward track and which was 11 centimetres deep. The stab wound punctured a lung. Death was due to loss of blood. In addition to the stab wound there were also two incise wounds (cuts), one on the forearm and one on a hand, and abrasions on the right hand, lower back, and lower lip. The abrasions on the lower lip may have been caused during resuscitation attempts. V. POSITION OF THE PARTIES A. Defence

[ 15 ] The Defence submits that there is no evidence as to where the knife came from or how the stabbing occurred. Further, there is no evidence from the pathologist as to the likelihood of death from such an injury. The Defence submits that there is no evidence from which reasonable inferences can be made regarding the state of mind of the accused and that any reasoning to reach such a conclusion would engage speculation. B.

Crown: [ 16 ] The Crown submits that a properly instructed jury could make the necessary inferences to establish intent for murder by considering the following: the placement of the stab wound on the torso, the aggressiveness of the accused that night as demonstrated by the assault on S.W. and his having approached Silas after the fight had ceased the first time, and his failure to remain and help Silas after the stabbing. VI.

ANALYSIS [ 17 ] There is no direct evidence, such as utterances by the accused, of an intention to cause death, nor are the circumstances such that intent to kill is apparent from the nature of the injuries (for example, a gunshot wound at close range through the chest of the deceased). Such an intention must be found pursuant to s. 229 (a) (ii) of the Criminal Code .

This provision requires: - an intention to cause bodily harm; - knowledge that the bodily harm is likely to cause death [ 18 ] In determining whether the circumstantial evidence is sufficient to potentially support a conviction for murder the court should consider the nature of the injuries and the circumstances of the incident. [ 19 ] The Crown has referred to the Manitoba Court of Appeal case R. v. Castel , 2020 MBCA 41 , in which a conviction for second degree murder was upheld where there were two stab wounds to the back of the deceased, one of which pierced the lung and led to death.

In addition to the stab wounds there was evidence that the accused was angry at the deceased and another person, that she pursued them while she had a knife in her possession, and that she stabbed them from behind. [ 20 ] In R. v. Robertson , 2020 SKCA 8 , following an altercation with the deceased which resulted in a single stab wound to the abdomen, the accused stood trial on murder and was convicted of manslaughter. The conviction was overturned on issues relating to the charge on self defence.

I refer to the case simply for the point that the option of murder was left with the jury. [ 21 ] A review of the cases is of limited assistance, as each case must turn on its own facts.

In the matter before me a trier of fact could refer to the following in considering intent: - the accused stabbed the deceased; - the accused was in an aggressive mood, as demonstrated by his behaviour towards S.W.; - the accused approached the deceased after the first fight had stopped, which might be inferred as him seeking a confrontation; - the stab wound was in the back, which might give rise to an inference that the deceased was somewhat turned away from the accused and more vulnerable than if they were face-to-face; - the stab wound was to the torso, in the area of vital organs, and not on a part of the body where injury to vital organs would not occur. [ 22 ] I reiterate that at this stage my task is not to determine whether any of these findings will be made by the trier of fact.

It is not my task to assess the credibility or reliability of witnesses. It is not my task to weigh contradictory evidence and make a decision as to which

is preferable. It is not my task to determine which inferences will ultimately be made. [ 23 ] The threshold to be met for a charge to proceed to a final determination by the trier of fact is low and I find that the Crown has met that burden. [ 24 ] The application for dismissal on the charge of murder is dismissed. Dated at the Hamlet of Arctic Bay this 23 rd day of February 2021 ___________________ Justice S. Cooper Nunavut Court of Justice