R. v. Mucpa, 2022 NUCJ 24

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Mucpa , 2022 NUCJ 24 Date: 20220621 Docket: 11-17-093 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Tommy Mucpa Before: The Honourable Mr. Justice Paul Bychok Counsel (Crown): Counsel (Accused): G. Lyndon, M. Welch J. Bedford, S.

Siebert Location Heard: Date Heard: Iqaluit, Nunavut March 22-23, 2021; July 5, 2021; November 17-18, 2021; April 6, 2022; June 21, 2022 Matters: Trial decision following a charge under Criminal Code of Canada, RSC 1985, c C- 46, s. 235(1) REASONS FOR DECISION (NOTE: This document may have been edited for publication) Table of Contents I. BACKGROUND . 4 II. THE APPLICABLE LAW .. 5 A. The presumption of innocence, proof beyond a reasonable doubt, and the role of the trier of fact 5 i. The presumption of innocence . 5 ii. Proof beyond a reasonable doubt 5

iii. The role of the trier of fact 5 B. Second degree murder in the Criminal Code . 6 i. The definition of murder 6 ii. The essential elements of second degree murder 6 C. The Actus Reus and Mens Rea . 7 i. The actus reus . 7 ii. The mens rea . 7 iii. The specific intent to commit second degree murder 8 iv. Self-induced intoxication, mental disorder, and specific intent 8 v. The cumulative effect of the evidence of intoxication and mental disorder 8 vi. The common-sense inference that an accused person intended the predictable consequences of his actions . 9 vii. Manslaughter 9 III. THE PARTIES’ POSITIONS . 10 A.

The Crown . 10 B. The Defence . 10 IV. THE EVIDENCE . 11 A. The case for the Crown . 11 B. Mr. Mucpa’s confessions and statements . 11 i. Mr. Mucpa’s first confession at 1:35 p.m. on July 3 . 11 ii. Mr. Mucpa makes a statement in the RCMP detachment booking area on July 3 12 iii. Mr. Mucpa makes a statement to Cst. Bayden Austring in detachment cells on July 3 at 14:08 . 13 iv. Mr. Mucpa makes statements to Cst. Longmire on July 3 from 14:27 to 16:47 13 v. Mr. Mucpa agrees to take the police to find Ms. Erkloo on July 3 at 17:59 13 vi. Mr. Mucpa makes a cautioned and warned statement to Cpl.

Pigeon on July 4 from 09:45 to 11:29 . 14 vii. Mr. Mucpa makes another statement to Cpl. Pigeon on July 4 from 12:48 to 13:03 18 viii. Mr. Mucpa confesses to his mother at the detachment on July 4 at 15:30 18 C. Witnesses for the Prosecution . 19 i. Jayco Killiktee . 19 ii. Jason Angnetsiak . 26 iii. Levi Kasarnak . 29 iv. Vanessa Katsak . 32 v. Boazie Ootoova . 32 vi. Dr. Christopher Milroy . 37 D. The case for the Defence . 41 i. Dr. Robert R. Sheppard . 41 V. ISSUES . 46 VI. ANALYSIS . 46 A. The evidence of alcohol consumption . 47

B. Mental Illness . 50 C. The cumulative effect of alcohol and mental illness . 53 VII. DECISION . 57 I. BACKGROUND [ 1 ] July 3, 2017, (July 3) was a fateful day in the lives of the extended family of the accused, Tommy Mucpa. Mr. Mucpa ventured out onto the land that day outside his home in Pond Inlet with two friends. When they came upon the tent belonging to his mother’s boyfriend, Boazie Ootoova, Mr. Mucpa looked inside. What Mr. Mucpa saw in the tent eventually sent him into a “homicidal rage.” [1] He saw his fifty-one-year-old maternal aunt, Dorcas Erkloo, asleep in the tent with Mr. Ootoova.

Not long afterward, Mr. Mucpa came across his aunt who was alone on the land. He proceeded to attack her viciously and kill her. [ 2 ] Mr. Mucpa’s brutal assault resulted in Ms. Erkloo’s death. As Mr. Mucpa walked back into town, he called the RCMP detachment to say he had killed his aunt and that he was going to the detachment to turn himself in. Mr. Mucpa went to the detachment where he sat on the steps waiting for the police to arrive. Cst. Kyle Longmire arrived at the detachment at 1345. He had a brief conversation outside with Mr. Mucpa then promptly arrested him for murder. The next day, Mr.

Mucpa agreed to show the police where on the land he had left Ms. Erkloo’s naked body. Mr. Mucpa has remained in pre-trial custody since his arrest. [ 3 ] The police charged Mr. Mucpa with the second degree murder of Ms. Erkloo pursuant to section 235(1) of the Criminal Code . [2] Mr. Mucpa was committed to stand trial after preliminary inquiry on November 7, 2018. Thereafter, Defence Counsel challenged the admissibility into evidence of a series of confessions and statements made by Mr. Mucpa to the police.

I conducted a blended voir dire [3] on February 24, 25, and 26, August 24, 25, and 26, 2020, and February 12, 2021. I admitted all but two of Mr. Mucpa’s statements into evidence. [4] We held Mr. Mucpa’s trial on March 22 and 23, 2021 in Pond Inlet, July 5, 2021, November 17 and 18, 2021, and April 6, 2022, in Iqaluit. These are my reasons for decision. II. THE APPLICABLE LAW A.

The presumption of innocence, proof beyond a reasonable doubt, and the role of the trier of fact [ 4 ] I will first address two fundamental principles - the presumption of innocence and the burden of proof, and the role of a judge as the trier of fact. i. The presumption of innocence [ 5 ] We presume a person accused of a criminal offence to be innocent unless, and until, the Crown proves his guilt beyond a reasonable doubt. [5] In other words, I cannot convict Mr. Mucpa of the charge unless I am sure that he is guilty. ii.

Proof beyond a reasonable doubt [ 6 ] The burden of proof, which is proof beyond a reasonable doubt, remains with the Crown throughout the trial. Further, the Crown must prove each essential element, or part of the offence, beyond a reasonable doubt. In my reasons, whenever I say the Crown must

prove or has proven something, or that I am satisfied or I accept, I am saying the Crown has met the standard of proof beyond a reasonable doubt. [ 7 ] An accused person does not have to testify, nor does he have to call evidence. Mr. Mucpa was entitled to put the Crown to the proof of its allegations. In the event, Mr. Mucpa elected not to testify, and the Defence called one witness. iii. The role of the trier of fact [ 8 ] Second degree murder is an indictable offence, and Mr. Mucpa elected to be tried by a judge sitting without a jury. I conducted the trial as the judge of both the law and the facts.

In my role as the trier of fact, I may accept everything a witness tells me, part of what that witness tells me, or nothing at all. To find something to be a fact, I must be satisfied that the Crown has proven it beyond a reasonable doubt. B. Second degree murder in the Criminal Code [ 9 ] I will now discuss the substantive law pertaining to Mr. Mucpa’s second degree murder charge. i. The definition of murder [ 10 ] Murder is defined in Criminal Code

section 229 : 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; [ 11 ] The ways in which a person may commit murder are classified in Criminal Code

section 231 : 231. Murder is first degree murder or second degree murder.

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

(7) All murder that is not first degree murder is second degree murder. ii. The essential elements of second degree murder [ 12 ] Before I may convict Mr. Mucpa, the Crown must prove each one of the following seven essential elements of the offence: 1. that it was Mr. Mucpa who; 2. on July 3, 2017;

3. in Pond Inlet, Nunavut; 4. committed an unlawful act; 5. against Ms. Erkloo; 6. that caused Ms. Erkloo’s death; and 7. that Mr. Mucpa either meant to kill Ms. Erkloo, or he meant to cause bodily harm to her which he knew was likely to kill her and was reckless whether she died or not. [ 13 ] Essential element numbers 4, 5, and 6 form the actus reus . Essential element 7 is the mens rea . C. The Actus Reus and Mens Rea [ 14 ] All criminal offences have two component parts which must have been present at the same time when the accused person committed the alleged offence.

Each of these two components must be proven by the Crown beyond a reasonable doubt. i. The actus reus [ 15 ] The first component is called the actus reus which is the criminal physical act committed by the accused person. In this case, there is probative and reliable evidence that Mr. Mucpa committed the actus reus required to kill Ms. Erkloo. Defence Counsel has conceded [6] the Crown proved that Mr. Mucpa killed Ms. Erkloo. ii. The mens rea [ 16 ] The second component is called the mens rea which refers to the accused person’s mental intention to commit the criminal act in question.

There are two types of criminal intent: general and specific. [ 17 ] General intent refers to the accused person’s intention to commit the specific unlawful act. [ 18 ] Specific intent means the accused person intended to commit the unlawful act with a view to achieving a certain result. Second degree murder is a crime of specific intent. iii. The specific intent to commit second degree murder [ 19 ] To decide whether the Crown has proven that Mr. Mucpa intended to kill Ms. Erkloo, I must consider all the circumstances contained in the evidence including what Mr. Mucpa said and did.

I must also consider the nature of the injuries he inflicted on Ms. Erkloo which resulted in her death. Thus, in order to convict Mr. Mucpa of second degree murder, I must be satisfied that he assaulted Ms. Erkloo intending to kill her, or that he intended to hurt her in a way that was likely to kill her and he was reckless whether she died or not. [7] iv. Self-induced intoxication, mental disorder, and specific intent

[ 20 ] There is evidence Mr. Mucpa consumed alcohol on July 3 before he attacked Ms. Erkloo. Therefore, I must carefully assess and weigh this evidence to see if the Crown has proven that Mr. Mucpa formed the requisite specific intent to kill Ms. Erkloo despite his alcohol consumption. [8] If I have a doubt on this issue, I may only find Mr. Mucpa guilty of manslaughter. [9] [ 21 ] There is also evidence that Mr. Mucpa was suffering from mental illness on July 3. That Mr. Mucpa suffered from mental illness does not automatically reduce his criminal responsibility.

A person with mental illness may still be able to form the specific intent to kill if he appreciates the nature and quality of his actions and he knows those actions are legally wrong. [10] I must decide whether this mental illness is more likely than not to have made him unable to appreciate the nature and quality of his actions, and whether those actions were legally wrong. Again, if I have doubt on this issue, I may only find Mr. Mucpa guilty of manslaughter. v. The cumulative effect of the evidence of intoxication and mental disorder [ 22 ] If neither intoxication nor mental illness taken alone provide Mr.

Mucpa with a defence, I must still consider whether the cumulative effects of his intoxication and mental illness leave me in doubt about whether Mr. Mucpa had the specific intent to kill Ms. Erkloo. [11] vi. The common-sense inference that an accused person intended the predictable consequences of his actions [ 23 ] Generally, the trier of fact may draw the common-sense inference that an accused person normally intends the predictable consequences of his actions. Caution must be exercised, though, when there is evidence, as here, that the accused had consumed alcohol and suffered from mental illness.

Cory J. set out these considerations in R v Seymour : The common-sense inference as to intention, which may be drawn from actions of the accused, is simply a method used to determine the accused’s actual intent.

That same common sense makes it readily apparent that evidence of intoxication will be a relevant factor in any consideration of that inference ... [The trier of fact must] take into account the evidence of the accused’s consumption of alcohol or drugs, along with all other evidence which is relevant to the accused’s intent, in determining whether, in all the circumstances, it would be appropriate to draw the permissible inference that the accused intended the natural consequences of his actions. [12] [Emphasis in original] [ 24 ] I may only apply the inference if I have considered all the evidence, including Mr.

Mucpa’s use of alcohol and his mental health, and I am satisfied beyond a reasonable doubt that Mr. Mucpa had the specific intent to kill Ms. Erkloo. [13] [ 25 ] For reasons I shall explain shortly, I am satisfied that while the inference may be available to me on all the evidence, I need not draw upon it to discern Mr. Mucpa’s actual intent. vii. Manslaughter [ 26 ] The Criminal Code defines manslaughter as culpable homicide which is neither murder nor infanticide. [14] Manslaughter refers to the unlawful killing by one person of another where there was no specific intent to kill.

Manslaughter is a lesser and included offence to second degree murder. III. THE PARTIES’ POSITIONS A. The Crown

[ 27 ] The Crown says it has proven all the essential elements of second degree murder, and that I should find Mr. Mucpa guilty. B. The Defence [ 28 ] The essence of the Defence position is that: Mr. Mucpa’s mental condition at the time of the offence affected his ability to intend the consequences of his actions. Mr. Mucpa did not have the state of mind necessary to make the unlawful killing of Ms. Erkloo murder … Mr. Mucpa’s ability to control his behaviour was impaired by the cumulative effect of a number of factors. This contention is founded upon the evidence of Dr.

Sheppard and witness observations as well as Mr. Mucpa’s own conduct. Mr. Mucpa’s mental condition arose as a result of the cumulative effect of cognitive dysfunction, neurodevelopmental disorder (likely a fetal alcohol spectrum disorder) causing neuropsychological deficits, a failure to take his antipsychotic medication, and alcohol consumption. The act of killing must be proven to be the wilful product of a conscious and operating mind. A mind that is functioning in a competent way. Mr. Mucpa’s mind was not operating in this way. He was unable to control his anger and unable to control his actions.

This evidence raises a doubt with respect to his possession of the requisite intent for murder. [15] [ 29 ] Consequently, Defence Counsel say that I ought to find Mr. Mucpa not guilty of second degree murder but guilty to the lesser and included offence of manslaughter. [16] [ 30 ] I shall address Defence Counsel’s specific comments about the evidence in the next section. IV. THE EVIDENCE A. The case for the Crown [ 31 ] The Prosecution’s case is made up of three categories of evidence. The first category includes exhibits containing nine confessions and statements made by Mr.

Mucpa to the police and to his mother on July 3 and 4. These statements were captured on audio and video recordings and were transcribed. The second category of evidence includes in-court testimony given by five civilian witnesses and the forensic pathologist who performed the autopsy on Ms. Erkloo. The third category is comprised of exhibits including photographs, three forensic reports and two Agreed Statements of Facts filed with the Court by counsel, photographs, and three forensic reports. [17] [ 32 ] I first will review Mr. Mucpa’s confessions and statements. B. Mr.

Mucpa’s confessions and statements [ 33 ] Mr. Mucpa confessed to killing his aunt on a cell phone call he made to the police as he made his way from the scene to the RCMP detachment. He then made eight further confessions and statements on July 3 and 4. I shall examine each one in turn.

i. Mr. Mucpa’s first confession at 1:35 p.m. on July 3 [ 34 ] Mr. Mucpa made his first confession when he called the police to tell them he was on his way to the detachment to turn himself in. Mr. Mucpa said: I just killed my auntie man. [18] Yeah. I can prove it to you, I got blood all over me. [19] Um, he’s my witness so I let him watch the [sic] I killed my aunt. [20] I killed her with my bare hands. I’m wearing blue hoodie and grey pants and brown shoes and black jacket … I mean black cap sorry. [21] I’m on a cell phone. [22] I’m very close.

I’m on my way there. [23] I’m wearing [sic] blue hoodie and gray pants and brown shoes and black jacket. [The tent is] maybe fifteen minutes [from town] … Five minute drive. [24] [My brother-in-law] he’s looking for my friend. I’m very close. [It happened] near the tent. Maybe fifteen minutes from town. I’m low on minutes. I’m walking towards the station. I’ll just talk to you at the station. [25] [ 35 ] At one point, RCMP dispatch referred to Mr. Mucpa’s witness as his brother-in-law. Mr. Mucpa immediately corrected him: “My ex brother-in-law. [26] [ 36 ] Mr.

Mucpa also said he did not know how to spell his aunt’s name saying: “I’m not too sure. I don’t really talk to her … Cause our family we hate each other.” [27] ii. Mr. Mucpa makes a statement in the RCMP detachment booking area on July 3 [ 37 ] After Mr. Mucpa gave his full name to Cst. Kyle Longmire, he then said, “I’m sorry mom.” Moments later, when he was asked if he wanted to speak to a lawyer, Mr. Mucpa answered, “No. Cause I know I did it.” [28] iii. Mr. Mucpa makes a statement to Cst. Bayden Austring in detachment cells on July 3 at 14:08

[ 38 ] Cst. Austring stationed himself outside Mr. Mucpa’s cell to monitor him. Unexpectedly and voluntarily, and without having been spoken to by Cst. Austring, Mr. Mucpa started to speak about what had happened. Cst Austring then placed a recorder on the cell’s window and told Mr. Mucpa he was being recorded. Mr. Mucpa then said: Everything’s my fault. Anyways, you know … my aunt’s dating was my mom [sic] and my mom doesn’t know she was sleeping with him. I told him give me booze I won’t tell. Then he said he has a gun; he can shoot me. Harder life man. Harder life in Nunavut. [29] [ 39 ] Cst.

Austring then asked Mr. Mucpa if he had any pre-existing conditions. Mr. Mucpa replied: Um. Uh there’s mental health. He knows everything. I’m with uh mental health. They think I’m a schizophrenic. I used to take pills, um injection when they came here. I stopped them. So that’s why I’m going crazy cause of depression. I usually take them every month. [30] iv. Mr. Mucpa makes statements to Cst. Longmire on July 3 from 14:27 to 16:47 [ 40 ] Mr. Mucpa twice refused to speak to a lawyer. Cst Longmire persisted, and Mr. Mucpa eventually agreed to speak with Legal Aid duty counsel. v. Mr.

Mucpa agrees to take the police to find Ms. Erkloo on July 3 at 17:59 [ 41 ] At 17:59, Cst. Longmire went to Mr. Mucpa’s cell and asked him if he would take the police to Ms. Erkloo. Mr. Mucpa replied, “sure.” [31] The police took Mr. Mucpa to the police vehicle and Mr. Mucpa guided them out onto the land. As they arrived on the scene, Mr. Mucpa said, she “should be around here.” [32] Cst. Austring got out of the vehicle and started walking to the area indicated by Mr. Mucpa. As Cst Austring continued walking, Cst. Lance Woodman and Mr. Mucpa had the following discussion. W refers to Cst. Woodman, M to Mr. Mucpa.

W: Was there a tent up here? M: Um towards over there. Yeah. Tell him it’s on this side. The left side. W: (Inaudible) the left side at the top of the hill? M: It’s middle of the … holy … He never seen it. W: Not yet. No. M: He should see her right now. He passed it. W: Think so? M: He’s gone too far up … Oh man … He should see her right now. He passed it and he’s way too up. On the way up he should’ve seen the body. [33] [ 42 ] Cst. Austring found Ms. Erkloo’s body shortly afterward. vi. Mr. Mucpa makes a cautioned and warned statement to Cpl. Pigeon on July 4 from 09:45 to 11:29

[ 43 ] At 09:45 the next morning, Cpl. Jean-Sebastien Pigeon took Mr. Mucpa out of his cell to conduct a formal interview. Given the dynamics involved during the interview, details touching on the incident came out in a random fashion. With one exception, I have chosen to repeat Mr. Mucpa’s relevant statements in the same order as he made them during the interview. I shall weave together the statements given by Mr. Mucpa and the other witnesses in my findings of fact. [ 44 ] During the interview, Mr. Mucpa repeated six times that his lawyer had told him not to talk to the police. At one point, Mr.

Mucpa said that he wanted to see his mother “cause I’m thinking of goin [sic] life … Cause I’m thinking like they gonna put me to life sentencing. You know?” [34] [ 45 ] Toward the end of the interview, Mr. Mucpa became agitated and Cpl. Pigeon took him out for a cigarette. Mr. Mucpa, then of his own volition and without being spoken to by Cpl. Pigeon, initiated the following exchange. M refers to Mr. Mucpa, P to Cpl. Pigeon. M: I was choking her. P: What? M: Choking her. P: In there? M: Choking her up there. P: You were choking her? M: Yeah. P: You understand I have the recorder. Okay? It still … M: Yeah.

P: … recording. M: I know. P: Okay. I just wanna make sure. M: I know you are. I saw you … you grabbed it. [35] [ 46 ] Mr. Mucpa continued saying: M: He was watching (Inaudible). I think … that’s why I’m sore man. P: That’s why you’re sore? M: Yeah. Grabbing her. Really hard. As soon as I started choking her she pointed up and I looked “Oh. He’s watching.” I wanted to get off as soon as he s…showed up again. “Oh, it’s Jaycko [sic]. Alright. He’s my witness.” I grabbed a rock and hit her in the head. I was … P: You said you grabbed a rock? M: Yeah. Walking and started crying both of us.

I told him “Don’t be guilty. It’s my fault and look. I let you watch. We talked a little bit

more and then (Inaudible). [36] [ 47 ] Cpl. Pigeon steered Mr. Mucpa back to the incident. At some point, Mr. Mucpa said he saw Ms. Erkloo walking towards town. Mr. Mucpa said he “grabbed her from behind… she was walking towards town.” Mr. Mucpa covered his face with his hoodie and followed her, “watching her.” [37] M: She went like that, I was like uh ‘Okay. I think she wants to be dead.” And walk some more. She asked for smoke. [ 48 ] Mr. Mucpa “was becoming angrier” as he and Ms.

Erkloo spoke. [38] He continued: M: I said:” I got nothing.” She started walking more just walking slowly and I grabbed her from behind. I choked her. She was tryna come off. Every time she tryna comes off [sic] I sh … sh … choking her more. She grabbing me in my face, tryna grab my leg to see if I can come off. I was doing hard. She was grabbing so hard. I was like “Whoa. Why am I doing this? Why? Why did I do it? It’s hard life in this town. [39] … P: What happened after you choked her? M: I hit her on the head with the rock … All of a sudden she stop moving. All of a sudden I hit her twice with the rock ...

I notice she’s still breathing. I choke her some more again. And we saw Boazie … He drove right in front of us and he never seen us. I f … right there. We were right there and he … he drove by and never seen us … I was like “What the fuck?” How come he never seen us. If he seen us she would still be alive but … “I was like “What the fuck?” There’s a road going up. [40] [ 49 ] Mr. Mucpa then said that he started walking and went to the airport where he met with Mr. Killiktee. They talked. Mr. Mucpa told Cpl. Pigeon that he left Mr. Killiktee there and walked away.

At some point, he said he tried to hang himself with a chain but it broke. He thought “Fuck it. ‘I should go to station. [sic] I tried coming here.” [41] He went to the detachment and rang the doorbell several times, but no one answered. He then went to Mr. Jason Agnetsiak’s place and used his phone to call the police at 13:35. He and Mr. Angnetsiak exchanged the following words: I told him “Alright. See you guys in life.” And he said “Alright. Why?” “I just killed my aunt.” “Really?” “Yeah (Inaudible) for me.” And he said: “Alright.

I’ll see you in life.” Cause I tried coming here and nobody was here. [42] [ 50 ] Mr. Mucpa repeated to Cpl. Pigeon twice that he “got mad” when he found his aunt was with Mr. Ootoova. He said: So, we went walking out there and there’s the tent so I looked and they were sleeping. Seen the (inaudible) bottle. I looked, it was half (inaudible) so I went back out, I gave it to him, [Mr. Killiktee] I told him “Your stomach is weak so I’m just gonna drink some more and give it to you” and so I did. Look around some more tryna find the booze. I … I couldn’t find it. He’s a good hider [referring to Mr.

Ootoova]. [43] [ 51 ] Cpl. Pigeon asked Mr. Mucpa “why did you do it?” and Mr. Mucpa replied: M: I was jealousin [sic] for my mom. P: You were jealous? M: Yeah.

P: How come? M: Boazie was dating my mom for three years. P: And then you found her with Boazie? M: Yeah. P: And you got mad? M: I got mad. [44] [ 52 ] Towards the end of the interview, Cpl. Pigeon and Mr. Mucpa had the following exchange: P: … I really appreciate you to be [sic] sincere and truthful. M: I’m always truthful. P: Well, thank you. I appreciate it. M: I always been. [sic] [45] vii. Mr. Mucpa makes another statement to Cpl. Pigeon on July 4 from 12:48 to 13:03 [ 53 ] Cpl. Pigeon spoke to Mr. Mucpa again and asked him why he had taken off Ms. Erkloo’s clothes. Mr.

Mucpa answered, “I wanted to hide the evidence … and not come here.” viii. Mr. Mucpa confesses to his mother at the detachment on July 4 at 15:30 [ 54 ] Mr. Mucpa’s mother came to visit him at the detachment in the afternoon of July 4. Cpl. Pigeon tape recorded the visit. In the following extracts from the transcript of the visit TM refers to Mr. Mucpa and IM to his mother. TM: I killed your sister. IM: Why? TM: Helping you out. IM: About what? TM: Your stupid boyfriend. I’m sorry mom. I got pissed off. You remember he said he miss you? [sic] IM: Mhm. TM: He love you? [sic] IM: Mhm.

TM: Look what he did. Cheating on you. What the fuck? I got pissed off. I’m sorry mom. I’m sorry. I’m sorry mom. TM: Mm. Kill my aunt mom. IM: How? TM: I choke her. IM: Mm. TM: I hit her on the head with the rock. IM: Mm. TM: I still feel it the [sic] when she grabs. [sic] I still feel it. IM: (Crying) TM: I wanted to stop but I kept going until she couldn’t move. While I was choking her Boazie drove by. It was right there and he didn’t see us. He was right there. If he seens us [sic] he would’ve stopped us. He would’ve stop me. IM: Hm. TM: I let Jayco [sic] watch. IM: Hm. TM: I’m sorry mom.

I still feel it the [sic] when she grab [sic]. [46] C. Witnesses for the Prosecution [ 55 ] I shall now summarize the evidence of the Crown’s witnesses which in my view is probative and relevant to the issue of specific intent. As we shall see, each witness told somewhat different versions in direct and cross examination. Each witness also told a story somewhat different from each other. Defence Counsel highlighted these differences.

In our submission, Your Honour, when we review the witness accounts that were given in this case, there are a number of inconsistencies between their versions of events and many of these, they’re primarily external inconsistencies in that they’re inconsistent as between each other.

They’re – they are not easily reconcilable and in our submission there’s very little to assist the Court in determining why one account should be preferred or accepted over another. [47] [ 56 ] I shall refer to the Crown witnesses in the order they were called to testify. [ 57 ] In this section, I shall also address the specific concerns raised by Defence Counsel in their written submissions in relation to each witness. I shall then comment in my analysis on what evidence I accept from each witness once I have examined each one in turn. i. Jayco Killiktee [ 58 ] Mr.

Killiktee was an emotional and interested witness who acknowledged his 11-year friendship with Mr. Mucpa. He reluctantly

answered the Prosecutor’s questions and often had to be asked the same question more than once to get an answer. In cross examination, however, he quickly and at times enthusiastically replied “yes” to whatever suggestions were made to him by Defence Counsel. When he left the witness chair, Mr. Killiktee went up to Mr. Mucpa and sobbed while hugging him. I must be cautious when I assess and weigh Mr. Killiktee’s credibility and the reliability of his sometimes contradictory evidence. [ 59 ] In direct examination, [48] Mr. Killiktee testified he woke up at 8:15 a.m. on July 3.

After completing a chore, he walked to the Co- op stairs hoping to meet up with Mr. Mucpa. He arrived there at 8:45 a.m. They met up close by at 9 a.m. Levi Kasarnak was with Mr. Mucpa. They talked for about five minutes before Mr. Mucpa suggested they walk uptown towards “the tent.” Mr. Mucpa and Mr. Kasarnak headed out and Mr. Killiktee joined them a few minutes later. [49] During the walk, Mr. Mucpa said Boazie Ootoova had alcohol with him at the tent and that they could drink it. They walked 45 minutes to get to the tent. [ 60 ] When they arrived, Mr. Mucpa was the first one to go to the tent.

He came back to his companions empty handed and asked Mr. Killiktee to have a look inside for alcohol. Mr. Killiktee unzipped the tent and stuck his head inside. Mr. Ootoova and Ms. Erkloo were sleeping. He did not see any alcohol in the tent and he did not remove anything from inside the tent. The three men then looked for alcohol around the tent. [ 61 ] About fifteen minutes later, Mr. Killiktee continued, Mr. Kasarnak found two bottles which he started to drink. Mr. Mucpa drank some and Mr. Kasarnak finished it. However, he backtracked at the end of his direct examination: Q: Did you see him [Mr.

Mucpa] have a drink at the Co-op steps? A: Yes. Q: Did you see him have a drink at the Hamlet site? A: Yes. Q: Did you see him have a drink at the tent? A: No. … Q: Did you see Levi drinking at the tent? A: No. [50] [ 62 ] Mr. Mucpa, he said, then went to the tent and said “Boazie, give some booze so I won’t tell my mother that you with [sic] Dorcas.” Mr. Ootoova replied “Just walk away. I have a gun. I can shoot you guys.” [51] Mr. Killiktee was scared and ran off towards town and he hid behind a rock. The other two men ran off toward the water station. Mr. Killiktee watched Mr.

Ootoova start the four-wheeler and catch up with Mr. Kasarnak. He stated that he watched the two men speak for 15 to 20 minutes before Mr. Kasarnak got on the Honda with Mr. Ootoova. He then saw Ms. Erkloo walk away from the tent towards the water station which concerned him. The following exchange is instructive: Q: … You’re at the big rock and then you walk back towards the tent? A: When I saw the tent again and I saw Dorcas walking towards near the tent. Q: All right. A: I start to watch Dorcas to save her, but I couldn’t see her again. Q: Why do you use the word save her, save Dorcas?

A: I was thinking Tommy [Mr. Mucpa] kind of pissed off at Boazie. Q: And? A: And Tommy told me he might do something to Boazie or Dorcas. [52] [ 63 ] Mr. Killiktee tried to walk to Ms. Erkloo, but he lost sight of her in the uneven terrain. [ 64 ] Mr. Killiktee came upon Ms. Erkloo four minutes later. Ms. Erkloo was face down on the ground with Mr. Mucpa behind and on top of her with his hands “on her neck.” He momentarily thought about grabbing Mr. Mucpa’s neck to save her but Mr. Mucpa “was kinda … tense.” [53] He continued to watch while Mr. Mucpa looked around for a rock while keeping his left arm on Ms.

Erkloo’s neck. He described Mr. Mucpa as looking “kinda pissed off.” [54] Mr. Mucpa said, “I think she’s dead soon.” Mr. Mucpa had his arm on Ms. Erkloo’s neck. Mr. Mucpa searched for a rock going frontwards and backwards with his right hand until he found one the “size of two hands” and hit Ms. Erkloo twice on the head. [55] Ms. Erkloo raised her hand to her head once and stopped moving. Mr. Mucpa was on top of her for 20 to 25 minutes. [56] At this point, Mr. Mucpa had his left shoulder on her neck and his left hip on her back. His left foot was on the ground. [ 65 ] Mr. Mucpa still had his arm on Ms.

Erkloo’s neck when he, Mr. Killiktee, heard a four-wheeler so he hid behind a black rock. He hid there for about 20 minutes within sight of Ms. Erkloo. Mr. Ootoova climbed up the hill on his Honda and Mr. Killiktee ran away to avoid him. [ 66 ] Mr. Killiktee came across Mr. Mucpa on a road about fifteen minutes later. When I start see Tommy, I look at his pants and there was kinda blood, and I told him, “What did you do?” He just said nothing. But he told me he had no choice to take off the pants and burn it up … I was crying and talking to Tommy like, “why did you do that in front of me?

I wasn’t expecting that shit.” And Tommy said, “I’m so sorry letting you watch this happen. So, when RCMP gets you, tell them the truth so you will be safe. [57] [ 67 ] They parted ways three minutes later but met up again a bit later near the airport. Mr. Mucpa rolled a cigarette and said “I’m very sorry I let you watch that. I really didn’t want to do that at all, but I – for a bit there I blacked out and I really didn’t want you to witness that.” [58] Two minutes later, they parted company for the last time that day. [ 68 ] Mr.

Killiktee continued saying he did not drink any alcohol that day until 1600. [59] Nor did he and Mr. Mucpa have anything to drink at the airport after the incident. Yet, I heard the following exchange at the end of direct examination: Q: When you were with Tommy at the tent, was he drunk? A: Yes. Q: When you were with Levi at the tent, was he drunk? A: Yes. [60] [ 69 ] In cross examination, [61] Mr. Killiktee said he and Mr. Mucpa have been friends for 11 years. Mr. Mucpa had been in a good mood when they first met on July 3. He stated Mr. Mucpa and Mr.

Kasarnak had drank half a mickey of vodka before they walked to the tent, Mr. Killiktee agreed with Defence Counsel that Mr. Mucpa had problems while walking to the tent. He agreed that Mr. Mucpa had only put his head in the tent, but that he had removed a half full mickey bottle of vodka and Mr. Ootoova’s pants from inside. Mr. Mucpa went through Mr. Ootoova’s wallet and Mr. Kasarnak took Mr. Ootoova’s VISA card. Mr. Killiktee then looked inside the tent and took out another bottle of vodka. He said Mr. Mucpa and Mr. Kasarnak drank the contents of both bottles. He agreed that he only heard Mr. Mucpa ask Mr.

Ootoova for more alcohol.

[ 70 ] Mr. Killiktee then agreed with Defence Counsel that Mr. Mucpa had had his arm completely around Ms. Erkloo’s neck, in the form of a headlock. There followed this exchange with Defence Counsel: Q: And in that time did Tommy turn his face and look at you? [When he had Ms. Erkloo in a headlock] A: No. Q: Do you remember that you told him to stop, and he looked at you and you saw his face and you thought he looked blacked out? A: Oh, yeah, yeah. Q: And I’m going to suggest that it almost looked like he wasn’t even looking at you, right, he was almost looking behind you. Do you agree with me?

A: Yes. [62] [ 71 ] I will return to this exchange momentarily. [ 72 ] Mr. Killiktee agreed with Defence Counsel that he had said at the preliminary inquiry that Mr. Mucpa had only hit Ms. Erkloo on the head once. He also agreed that when the two men met up later, Mr. Mucpa said he was going to kill himself; and that Mr. Mucpa told him that he, Mr. Mucpa, did not know “why he did what he did.” [63] [ 73 ] Defence Counsel “take issue” [64] with various inconsistencies in Mr.

Killiktee’s evidence, as well as several things which he said for the first time at trial. [65] I list those concerns with reference first to what Mr. Killiktee said in direct examination followed by what he said while under cross examination. i. He stated that he did not take anything out of the tent; but he agreed later that he had taken a bottle of vodka out of the tent. ii. He stated that he heard Mr. Mucpa say at the tent “Boazie, give some booze so I won’t tell my mother that you with Dorcas;” but later he agreed that he only heard Mr. Mucpa ask for more alcohol. iii.

His evidence concerning the sequence of events during the attack “was unclear and inconsistent.” iv. He stated that Mr. Mucpa said “I think she’s dead soon;” but later he stated that Mr. Mucpa did not say anything to him during the attack. v. He stated that Mr. Mucpa hit Ms. Erkloo twice in the head; but later he agreed with Defence Counsel that Mr. Mucpa only hit her once with the rock. vi. He stated that Mr. Mucpa held Ms. Erkloo by the neck for about one minute after he struck her with the rock; but later he agreed with Defence Counsel that Mr. Mucpa let go of Ms. Erkloo after he hit her with the rock. vii.

He stated that he hid behind a rock for 20 minutes when he heard Mr. Ootoova’s four-wheeler; but he had never told that to anyone before trial. viii. He stated that Mr. Mucpa was on top of Ms. Erkloo for about 25 minutes which he had never told anyone before the trial. [66] [ 74 ] Items i, ii, iii, and vii are inconsequential to the issue of specific intent.

[ 75 ] Item ii is important, however, because Mr. Killiktee’s evidence in direct examination parallels what Mr. Mucpa told Cst. Austring; that he had told Mr. Ootoova to give him booze so he would not tell on him. [ 76 ] Item v may seem significant except that Mr. Mucpa admitted to the police – and I accept -that he hit Ms. Erkloo in the head twice with a rock. [ 77 ] Item vi is noteworthy as well. Mr. Killiktee agreed with Defence Counsel that Mr. Mucpa got off Ms. Erkloo after he hit her with the rock. But his evidence in direct examination parallels Mr. Mucpa’s admission that after he hit Ms.

Erkloo with the rock, he saw that she was still breathing so he choked her some more. Based on all the evidence before me, I found Mr. Killiktee’s evidence in direct examination to be the more credible and reliable than his evidence in cross examination. [ 78 ] I am not troubled by the fact that Mr. Killiktee revealed certain pieces of evidence for the first time at trial. The vast majority of civilian witnesses are not legally trained. In my experience, witnesses will answer the questions which are put to them, but they are not generally adept or comfortable enough to provide information on their own initiative.

Nor is it obvious to many civilian witnesses what information may be relevant legally to the issues before the court. [ 79 ] I have had to consider what weight to give to answers given by witnesses in cross examination who agreed quickly with suggestions made to them by Defence Counsel even if that proposition was at odds with their earlier testimony. This is borne out by the transcripts in this case. In Mr. Killiktee’s case, the following exchange with Defence Counsel is illustrative: Q: Do you remember that you told him to stop, and he looked at you and you saw his face and you thought he looked blacked out?

A: Oh, yeah, yeah. Q: And I’m going to suggest that it almost looked like he wasn’t even looking at you, right, he was almost looking behind you. Do you agree with me? A: Yes [67] [ 80 ] Similarly, respecting item iv, I accept Mr. Killiktee’s evidence in direct examination that Mr. Mucpa did, indeed, say to him that “I think she’s dead soon”. [ 81 ] In consequence, as the trier of fact, I must weigh each witness’ testimony alone as well as in comparison with the evidence of the other witnesses in the search for the truth. ii. Jason Angnetsiak [ 82 ] In direct examination, Mr. Angnetsiak said he has known Mr.

Mucpa since childhood. Mr. Mucpa came to his house in the early afternoon of July 3. As Mr. Mucpa entered, “he said that he killed someone.” [68] He asked Mr. Angnetsiak if he could borrow a phone and said he was calling the RCMP. Before he walked away in the direction of the detachment, Mr. Mucpa gave him Canada Day pins to give to his [Mr. Mucpa’s] niece. Mr. Angnetsiak said of Mr. Mucpa “He didn’t look drunk. I didn’t smell any alcohol either.” [69] They were together for “maybe ten minutes” [70] before Mr. Mucpa told him he was going to the detachment. [ 83 ] In cross examination, Mr.

Angnetsiak did not agree with Defence Counsel that Mr. Mucpa looked like he was sweating when he arrived at his house. When challenged, he agreed he had forgotten about that. He then agreed that Mr. Mucpa looked “sad,” “unwell,” and “in a state of shock.” [71] But, he denied that Mr. Mucpa looked panicked. He agreed that Mr. Mucpa “wasn’t really making a lot of sense.” [72] Mr. Angnetsiak gave that answer following this question:

Q: And that must have seemed kind of strange to you; he comes in, he’s asking you to use the phone, he tells you he killed someone, and then the next thing he’s saying is he’s giving you pins to give to his nieces?” [73] [ 84 ] I infer the following from this conversation: that he was about to turn himself in for killing Ms. Erkloo, would not see his nieces again, and asked Mr. Angnetsiak to give them the Canada Day pins. [ 85 ] Defence Counsel suggested that Mr. Mucpa was having difficulty walking in the following exchange: Q: You watched him walk away? A: Yes.

Q: I’m going to suggest to you that Tommy was walking kind of funny, wasn’t it? A: I don’t know. Q: Did you notice him walking awkwardly? A: Seems like he was walking normally, as he usually would. [74] [ 86 ] He was then reminded how he had answered that question at preliminary inquiry: Q: … he was walking funny, right? A: Yeah, his leg. [75] [ 87 ] The Prosecutor objected saying Defence Counsel ought to read more of the exchange in the preliminary inquiry transcript to Mr. Angnetsiak which she then did: Q: He seemed to be having trouble walking; is that right? A: Not a whole lot. [76] [ 88 ] Mr.

Angnetsiak agreed that Mr. Mucpa acted differently than he normally did. [ 89 ] I then had the following exchange with Mr. Angnetsiak: Q: I have one question because I want to be sure I understand you. [To the interpreter] Would you translate that please? You were asked by Ms. Bedford if Tommy looked like he was in shock. Do you remember that? A: Yeah. Q: What does the word shock mean to you? A: The first thing he said to me was that he wanted to use the phone. Q: Did you understand the question when the lawyer asked you did Tommy look like he was in shock?

A: Yeah. Q: Then what does the word ‘shock’ mean to you? A: Shock, umm, I don’t know. [77] [ 90 ] Like Mr. Killiktee, Mr. Angnetsiak quickly agreed with many suggestions put to him by Defence Counsel immediately without seeming to consider what he was being asked. One significant example of this tendency was when he agreed readily with Defence Counsel’s descriptions of Mr. Mucpa’s appearance on July 3 – that Mr. Mucpa appeared to be unwell. [ 91 ] Unlike Mr. Killiktee, Mr. Angnetsiak did stand firm in his evidence on various points which bear upon the issue of specific intent. I accept his evidence that Mr.

Mucpa did not appear to be drunk; that he did not smell alcohol on Mr. Mucpa; and that Mr. Mucpa did not appear to have difficulty walking. Overall, I found Mr. Angnetsiak to be a sincere and truthful witness. [ 92 ] Defence Counsel emphasise that Mr. Angnetsiak agreed in cross examination that he had never seen Mr. Mucpa drunk before. Further, Defence Counsel emphasise that Mr. Angnetsiak said that Mr. Mucpa was “sweating, acting strangely and looking unwell and different.” [78] [ 93 ] On the first point, Defence Counsel have not shown how the fact that Mr. Angnetsiak previously had not seen Mr.

Mucpa drunk minimises his evidence that he did not smell alcohol on Mr. Mucpa on July 3. With regard to sweating, I accept Mr. Kasarnak’s evidence that July 3 was a sunny summer day. Unfortunately, neither party asked Mr. Angnetsiak what he meant, exactly, when he agreed with Defence Counsel’s suggestion that Mr. Mucpa looked unwell. iii. Levi Kasarnak [ 94 ] In direct examination, Mr. Kasarnak said he woke up “very close to eight o’clock” in the morning on July 3. [79] It was a nice sunny day. He went outside to have a cigarette and saw Mr. Mucpa. Mr. Mucpa offered him vodka from a mickey, and he accepted.

They each drank a shooter. He was sober and Mr. Mucpa “looked sober too.” [80] Mr. Kasarnak finished his coffee, and about 40 minutes later, the two men walked towards the Hamlet. Mr. Mucpa looked to be sober and “he seemed to know what he’s doing.” [81] They sat outside the Hamlet on a bench with Jayco Killiktee. The three men talked for about 40 minutes about finding more alcohol so they could sell it to get money for “cigarette [sic] or coffee or something to eat.” [82] [ 95 ] The three men walked for 30 to 40 minutes out onto the land “to go look for alcohol where the tent is.” [83] . Mr.

Mucpa led them to a tent which he told them belonged to Mr. Ootoova and where he said they would find alcohol. There was a tent and a four-wheeler where Mr. Mucpa took them. They looked around for alcohol around the tent for “like half an hour” but could not find any. [84] [ 96 ] Mr. Kasarnak was visibly upset and clearly uncomfortable about having to testify. The Prosecutor had difficulty getting Mr. Kasarnak to answer his questions. As Mr. Kasarnak continued, his story was challenging to follow. [ 97 ] Mr. Kasarnak continued that Mr. Mucpa took Mr. Ootoova’s pants from the tent. He watched as Mr.

Mucpa then took a wallet out of the pants. He continued to watch as the other two men went through the wallet. He heard Mr. Ootoova say he has a rifle, and the three men fled the scene. At this point, Mr. Kasarnak said that Mr. Mucpa had told him about the tent belonging to Mr. Ootoova while they had been earlier at his house. Mr. Kasarnak now revealed that Mr. Mucpa had looked into the tent and had said that Ms. Erkloo was sleeping inside. Mr. Mucpa also took out from the tent a mickey with “just a little bit” of alcohol, saying he wanted to look around for some more before going home. [85] Mr.

Kasarnak was surprised Ms. Erkloo was there because Mr. Ootoova was “seeing my aunt at the time.” [86] When asked specifically to describe Mr. Mucpa when he reported that Ms. Erkloo was there, Mr. Kasarnak said Mr. Mucpa “seemed mad.” [87] All three men finished off what was left in the mickey, which he now said was “probably half a mickey”, while they were there.

[ 98 ] Mr. Kasarnak then said that Mr. Ootoova woke up when Mr. Killiktee had looked inside the tent. Mr. Ootoova shouted out who was there and said he had a rifle. The three men fled. Mr. Ootoova came up to him with his Honda and offered Mr. Kasarnak a lift into town. He denied taking Mr. Ootoova’s credit card. [ 99 ] In cross examination, Mr. Kasarnak added further details. He said Mr. Mucpa was not swaying as if he was “buzzed” from drinking alcohol early that morning. Eventually, after further questioning, he agreed that Mr. Mucpa “didn’t seem too buzzed … like a little bit buzzed.” [88] Mr.

Kasarnak agreed that the three men had finished Mr. Mucpa’s mickey at the Hamlet, and that Mr. Mucpa had “drank the most.” [89] at times yes, but sometimes he was okay … I just figured he was enjoying the scenery and walking ... he would be walking normally for a long time, and then I guess we’re enjoying the scenery so much that you’re not really walking normal at times. [90] [ 100 ] They were walking on land that was “not smooth ... We live in Pond Inlet where it’s not flat” [91] Mr. Kasarnak testified that all three men looked around the tent for alcohol and no one found any. Mr.

Kasarnak also admitted that he had gone through Mr. Ootoova’s wallet looking for money and credit cards. [ 101 ] Defence Counsel raise the following concerns about Mr. Kasarnak’s evidence: i. He testified that Mr. Mucpa “looked to be sober,” but later said that Mr. Mucpa seemed “a little bit buzzed.” ii. He testified that before they arrived at the tent, Mr. Mucpa had had a shooter of vodka, but later said that Mr. Mucpa “drank the most” from a bottle at the Hamlet. iii. He testified that Mr. Mucpa had seemed to be mad when he saw Ms.

Erkloo in the tent, but later agreed that he had never told anyone that before the trial. iv. Defence Counsel state “Mr. Kasarnak also acknowledged that when Mr. Mucpa came out from the tent, he said he wanted to look for some alcohol and go home afterwards.” [ 102 ] Mr. Kasarnak is Mr. Mucpa’s cousin, and they are close. He, too, was an interested witness. He was emotional and clearly was uncomfortable testifying. Counsel had to pose persistent questions in order to get at the evidence. Mr. Kasarnak was emotional while testifying, and he required time to calm himself before continuing.

While Defence Counsel pressed him to agree that Mr. Mucpa had seemed to be “buzzed,” Mr. Kasarnak asked me if he could say something. He stated that his father had died unexpectedly while answering a call out to fight a fire. Mr. Kasarnak has been greatly affected by this loss, leaving him “stressed out and not normal.” [92] I interpreted this comment as an explanation for his struggles to recall details surrounding the incident. [ 103 ] In my view, concerning item i, there is little probative or relevant difference in Mr. Kasarnak first saying that Mr.

Mucpa appeared to be sober, later to agree that he seemed “a little bit buzzed.” [ 104 ] Concerning item ii, which focuses on alcohol consumption at the Hamlet, Mr. Kasarnak’s version in direct examination – that the men did not drink - matches Mr. Killiktee’s version of events. I am satisfied that the men did not drink alcohol at the Hamlet. [ 105 ] Similarly, the fact that Mr. Kasarnak referred to Mr. Mucpa’s anger for the first time at trial noted in item iii is not troubling. [93] [ 106 ] As for item iv, this evidence is consistent with what he said during direct examination, [94] and with what Mr.

Mucpa told Cpl. Pigeon.

[ 107 ] Mr. Kasarnak also attempted to minimise his actions at Mr. Ootoova’s tent. In direct examination, he testified that he had merely watched Mr. Mucpa and Mr. Killiktee as they searched through Mr. Ootoova’s wallet. In cross-examination, he admitted that he, too, had gone through the wallet, but he denied removing Mr. Ootoova’s card. I reject his evidence on this point and I accept Mr. Ootoova’s evidence that Mr. Kasarnak returned his VISA card to him a bit later. I take these considerations into account as I assess and weigh his evidence. In light of the totality of the evidence, I accept much of what Mr.

Kasarnak told me in direct examination. iv. Vanessa Katsak [ 108 ] In direct examination, Ms. Katsak said she saw Mr. Mucpa and two other men about fifteen feet away from her house on July 3 at “around five, six, seven, around there.” [95] He said the other two men were Levi Kasarnak and Joe Mucpa. [ 109 ] I have no reason to doubt that Ms. Katsak tried to answer the questions to the best of her recollection. However, she demonstrated no independent recollection of the date when she says she saw Mr. Mucpa.

She testified in cross examination that she had not slept the night before and her evidence, which was vague and contradictory, also does not jive with that of the rest of the evidence. For example, she stated that she saw Mr. Mucpa with Levi Kasarnak and Joe Mucpa” outside her home “around five, six, seven, around there. [96] That sighting is not supported by any other evidence. She was also a poor judge of distance, alternately saying that the three men she saw were either 15 feet or 100 feet away from her. All told, I must give her evidence little weight. v. Boazie Ootoova [ 110 ] In direct examination, Mr.

Ootoova said he went to his tent about half a mile out of town after the Canada Day celebration. He returned to town for supplies and came across Ms. Erkloo outside the Co-op. He invited her to go to his tent to drink, and she accepted. They went inside the tent after cooking steak and talked. He heard Mr. Mucpa and Mr. Kasarnak talking outside the tent. He heard Mr. Mucpa say that he, Mr. Ootoova, was “cheating with Tuukasi [Ms. Erkloo] and he told them “to get lost.” [97] Mr. Mucpa “sounded angry.” [98] He found his pants outside and discovered that his VISA card and quad key were missing.

He hot wired the quad and caught up with Mr. Kasarnak who gave him back his VISA card. He took Mr. Kasarnak back to town then returned to the tent. There was no one there when he returned, but the tent smelled of naphtha, as if someone had thought about setting it on fire. He saw a person in the distance, tried to take a photograph, and drove out to try and find him or her. He was unsuccessful. He denied that any alcohol had been stolen from him. [ 111 ] In cross examination, Mr. Ootoova told a somewhat different version.

He agreed with Defence Counsel that he had brought a full mickey of vodka to his tent on July 3. He denied keeping a stash of alcohol outside his tent, then agreed that he stated at the preliminary inquiry that he also had a 40-ounce bottle of vodka outside the tent. He continued by maintaining that “the 40-ounce stayed in the tent.” [99] He then said the mickey had been empty, but that he had filled it from the large bottle. He and Ms. Erkloo drank half the large bottle. [ 112 ] Mr. Ootoova denied that they had fallen asleep before they heard voices or that Mr. Mucpa had asked him for alcohol.

Defence Counsel then put to him that he had said the opposite at the preliminary inquiry; that they had fallen asleep, had awoken to voices, and that Mr. Mucpa had asked him if he had another bottle. [100] Mr. Ootoova replied: “I don’t really remember” his earlier testimony but he agreed that he had been truthful at the preliminary inquiry. [ 113 ] He agreed that Mr. Mucpa had put his head inside the tent. He also agreed that he had not told the police that Mr.

Mucpa had had an angry voice, but that he had noticed that omission when he reviewed his statement with the prosecutor. [101] Pressed by Defence Counsel, he also agreed that initially, Mr. Mucpa had seemed “happy” when he looked inside the tent and that Mr. Mucpa seemed to be in a good mood when he asked him [Mr. Ootoova] if he “was cheating on his mom because I was with Tuukasi.” [102] He returned to the tent after dropping off Mr. Kasarnak. He looked for his 40-ounce bottle but could not find it. [ 114 ] In redirect examination, the prosecutor asked Mr. Ootoova to clarify his evidence respecting the tone of Mr.

Mucpa’s voice when he said he [Mr. Ootoova] was cheating. Mr. Ootoova replied “this is how I feel it is. Tommy was not angry at me at all, but to Tuukasi he was angry.” [103]

[ 115 ] Defence Counsel raised the following concerns about Mr. Ootoova’s evidence: i. He testified that Mr. Mucpa sounded angry when he said Mr. Ootoova was cheating with Ms. Erkloo, but this “was raised for the first time at trial and was not disclosed to the R.C.M.P. during either of his statements or at the preliminary inquiry.” [104] ii. And he later agreed in cross examination that Mr.

Mucpa had, in fact, “seemed to be in a good mood and seemed happy.” [105] [ 116 ] The following extracts from the transcript are pertinent to these items. [ 117 ] In direct examination, the evidence unfolded as follows: Q: All right. I’d like to ask you about that comment from Tommy, which I’m paraphrasing [from his testimony a few minutes before] but it’s basically Tommy saying that you, Boazie, are cheating with Dorcas. The Interpreter: The witness nodded his head yes. Q: How did you feel when you heard that comment from Tommy?

A: Tommy’s voice sounded angry. [106] [ 118 ] In cross examination, I heard the following evidence: Q: I’m going to suggest to you when you spoke to the R.C.M.P. back on July 3 and July 4, at no time did you mention Tommy having an angry voice. A: Yes. Q: You agree with me, right? A: Yes. … Q: And before coming into court [at the preliminary inquiry] you actually met with … Mr. Welch and Mr. Magee at the time. You met them before court? A: Yes. Q: And they went through your statements with you? A: Yes. Q: And they asked you questions? A: Yes. Q: You had a chance to tell your story again, right? A: Yes.

Q: You did not mention that Tommy had an angry voice at that time, correct? A: But I did notice it. [107] [ 119 ] Mr. Ootoova then agreed with Defence Counsel that he had testified at the preliminary inquiry that he had joked around with Mr. Mucpa and that Mr. Mucpa had seemed “happy” and in “a good mood.” [108] [ 120 ] The Prosecutor returned to this issue in redirect examination. Q: You described to me in Examination-in-Chief that he was angry. You’ve acknowledged to Ms. Julie Bedford that you described Tommy as being happy at that moment, in previous statements. A: Yes.

Q: So I’m left with confusion now as to whether at that moment Tommy was angry or happy. Could you – if you can, could you clarify? A: This is how I feel it is – Tommy was not angry at me at all, but to Tuukasi [Ms. Erkloo] he was angry. [109] [ 121 ] As I assess Mr. Ootoova’s evidence, I am assisted by the evidence of Mr. Killiktee, Mr. Kasarnak, and what Mr. Mucpa himself said at various times. Mr. Killiktee testified that Mr. Ootoova told them that he had a gun, and that he could shoot them. Mr. Kasarnak testified that Mr. Ootoova told them he had a rifle. I accept their evidence that Mr.

Ootoova threatened them saying he had a rifle. I am also satisfied that Mr. Mucpa was telling the truth when he told Cst. Austring that Mr. Ootoova told him he had a gun and could shoot him. I draw the reasonable inference that Mr. Ootoova, too, at times tried to minimise his involvement in the situation. [ 122 ] I turn now to Defence Counsels’ concerns. [ 123 ] Respecting Defence Counsels’ concern in item i at para 116, I have already discussed my views on witnesses who reveal information for the first time in court. [110] [ 124 ] Respecting item ii, I have carefully considered Mr.

Ootoova’s various accounts of how Mr. Mucpa sounded. The evidence of the other witnesses and Mr. Mucpa’s statements greatly assist me. I reject Mr. Ootoova’s evidence in cross examination that Mr. Mucpa sounded “happy” and that they “joked around.” I am satisfied that Mr. Mucpa told the truth when he told Cpl. Pigeon that he was “jealous for my mom” and “angry.” I am satisfied that Mr. Mucpa told the truth when he told his mother he was “pissed off” when he found Ms. Erkloo in the tent with Mr. Ootoova. I am satisfied that Mr. Mucpa was truthful when he told Dr. Sheppard that he had become mad. I accept Mr.

Killiktee’s evidence that Mr. Mucpa told him that he was thinking of harming either Mr. Ootoova or Ms. Erkloo. On this point, I also accept Dr. Sheppard’s characterisation of Mr. Mucpa’s reaction as having been one of “homicidal rage.” [111] Further, I accept Mr. Angnetsiak’s evidence that Mr. Mucpa still seemed to be mad when they met later. I am satisfied that anger motivated Mr. Mucpa to assault and kill Ms. Erkloo. I am satisfied that Mr. Mucpa became, and sounded, angry when he realised that Ms. Erkloo was sleeping in the tent with his mother’s boyfriend. vi. Dr. Christopher Milroy [ 125 ] Dr.

Christopher Milroy testified by videoconference. He is a forensic pathologist at the Eastern Ontario Regional Forensic Pathology Unit where he performed an autopsy on Ms. Erkloo on July 7, 2017. The detailed description of these injuries is contained on pages 5 and 6 of Dr. Milroy’s written and peer reviewed Report of Postmortem Examination . [112] Among the 22 discrete injuries identified by Dr. Milroy: • Four abrasions and bruises to her head and neck including a 5 x 4 cm linear intradermal bruising in the centre of her neck over her Adam’s Apple;

• Six abrasions and bruises to her torso including a 6x6 cm abrasion on her left lower chest and a 3.5 x 3.5 cm red/brown bruise on her right lower buttock; • Five bruises on her upper limbs including 2 x 1 cm bruises to her upper left and right arms; • Five abrasions and bruises on her lower limbs including a 2 x 1 cm bruise on her left mid thigh and a 2 x 1 cm abrasion below her right knee; and • Four internal injuries including a 7 cm bruise on the crown of her head accompanied by a 1 cm full thickness laceration at the left lateral edge. [ 126 ] Dr.

Milroy opined: At autopsy there was evidence of compression of the neck. There were external injuries on the neck with abrasion and bruising of the skin, bruising in the anterior neck muscles, bilateral fractures of the superior horns with hemorrhage behind the larynx and petechiae in the left eye, oral mucosa, and the epiglottis. In addition to the injuries in the neck there was bruising and laceration on the back of the head, abrasions, and bruises on the torso, bruising on the upper limbs including the hands and bruising and abrasions on the lower limbs. [ 127 ] Ms.

Erkloo’s death, he concluded, was due to “compression of the neck.” [113] [ 128 ] In direct examination, Dr. Milroy stated that the neck compression resulted from manual strangulation. The “principal factors” which led to his conclusion were: … the presence of external injuries of the neck with abrasion and bruising of the skin. Bruising in the anterior neck muscles, bi-lateral fractures of the superior horns with the thyroid cartilage with hemorrhage in those fractures, and hemorrhage behind the larynx, that is the voice box.

And these were associated with petechiae, which are pinhead-sized hemorrhages in the left eye, the oral mucosa, and the epiglottis, which is part of the throat. … … there was bruising and laceration of the head, which was on the crown, which would indicate an impact to the top of the head. And then there were other sort of (indiscernible) on the torso, bruising of the upper limbs including the hands and bruising and abrasion of the lower limbs. They would – they could be caused by a struggle or impact with a firm surface.

But they’re not directly related to the cause of death, but they may have occurred around the time that the compression of the neck took place. [114] [ 129 ] In cross examination, Dr. Milroy agreed that the injuries apart from that to her neck and head could possibly have occurred up to 36 hours before the incident. [115] [ 130 ] Defence Counsel also vigorously cross examined Dr. Milroy respecting whether Ms. Erkloo’s injuries were consistent with an “arm lock” [116] or “arm bar” [117] rather than manual strangulation. [ 131 ] After the examinations, I asked Dr.

Milroy to explain how the neck compression caused Ms. Erkloo’s death. Dr. Milroy stated:

… the most significant factor is obstruction of the carotid arteries which are the arteries on either side of the windpipe that take (indiscernible) [blood] to the brain. They are the pulse we can feel when people feel in their neck. And these are much more easily occluded than the airway itself … the brain will use up all of its energy very quickly, and which is why you have a figure quoted of probably 30 seconds to a minute of deprivation of the brain of the oxygen that then causes the brain essentially to die. [118] [ 132 ] In their submissions, Defence Counsel highlight several of Dr.

Milroy’s findings which they say highlight that Mr. Mucpa acted “in a disorganized unthinking way ... impulsively moving from one action to another.” [119] i. That Ms. Erkloo was on her back when Mr. Mucpa strangled her; thereby calling into question the accounts given by Mr. Killiktee and Mr. Mucpa that she was face down at the time. Dr. Milroy agreed that if Ms. Erkloo had been struggling while face down for 20 to 25 minutes, the probability would be high that she would have suffered facial injuries. ii. That the haematoma and laceration on Ms. Erkloo’s head were consistent with a single blow. iii.

That the pressure required to fracture Ms. Erkloo’s voice box need not have been prolonged. A minimum of 30 to 60 seconds of continual pressure would have sufficed. [120] [ 133 ] These factors do not raise a doubt in my mind. [ 134 ] Concerning item i, when the accounts given by Mr. Killiktee and Mr. Mucpa are weighed along with the other evidence, it is immaterial whether Mr. Mucpa strangled Ms. Erkloo while she was face down or on her back. I note that in cross examination, Dr. Milroy opined that it was “possible” that Mr. Mucpa strangled Ms. Erkloo from behind. [121] Further, I accept as true Mr.

Mucpa’s statement to Cpl. Pigeon that he attacked Ms. Erkloo from behind. [ 135 ] Similarly, I am satisfied that Mr. Mucpa strangled Ms. Erkloo to death; the suggested alternatives of an arm lock or an arm bar would not in any event alter the fact that Mr. Mucpa assaulted Ms. Erkloo until she appeared to him to be dead. On this point, I accept Mr. Killiktee’s evidence that Mr. Mucpa had one arm against Ms. Erkloo’s neck as he retrieved a large rock to use as a weapon. Nor would it negate Mr. Mucpa’s specific intent to kill Ms. Erkloo. [ 136 ] Item ii is a red herring as I accept both Mr. Killiktee’s and Mr.

Mucpa’s accounts that the latter struck two blows. [ 137 ] As for item iii, I accept Mr. Mucpa’s evidence that Ms. Erkloo struggled to free herself from Mr. Mucpa’s grip while he strangled her. Whether Mr. Mucpa strangled Ms. Erkloo for 30 seconds, 60 seconds, or longer also does not raise a doubt. The fact that Mr. Mucpa continued – while Ms. Erkloo actively struggled to free herself, and while Mr. Mucpa responded with renewed force to subdue her- is compelling evidence of an intent to kill her. I also account that Dr. Milroy testified that Mr.

Mucpa would have needed to apply “very firm pressure” to fracture Ms. Erkloo’s voice box in the process. [122] [ 138 ] There is merit to Defence Counsels’ submission that “the more severe the injuries and the more force require to inflict them, the stronger the inference that the accused intended to kill the victim …” [123] Defence Counsel continued noting that Dr. Milroy testified that 30 seconds to one minute would have been required for Mr. Mucpa to break Ms. Erkloo’s voice box. I infer that Defence Counsel suggest that this short timeframe mitigates against a finding of intention to kill. However, while Mr.

Killiktee’s estimate that Mr. Mucpa was on top of Ms. Erkloo for 25 minutes may not be accurate, I accept that Mr. Killiktee perceived the assault on Ms. Erkloo to have been a prolonged one. Mr. Mucpa’s assault on Ms. Erkloo required very firm pressure resulting in him breaking her voice box as Ms. Erkloo struggled to free herself. In my view, the evidence provides compelling evidence of just that specific intention on the part of Mr. Mucpa. D. The case for the Defence [ 139 ] Mr. Mucpa exercised his constitutional right not to testify at his trial. Defence Counsel called one witness, Dr. Robert R.

Sheppard, of Thunder Bay.

i. Dr. Robert R. Sheppard [ 140 ] Dr. Sheppard is an experienced physician and among his responsibilities, he is a member of the Nunavut Review Board and the Ontario Review Board. Dr. Sheppard testified by videoconference. He stated he was retained by Defence Counsel to perform a psychiatric assessment of Mr. Mucpa and to opine on his state of mind on July 3. He outlined the materials he consulted, his own interaction with Mr. Mucpa as well as that of his colleague, the psychologist Dr. Percy Wright. Dr.

Sheppard’s assessment and conclusions were submitted to the Court in an eight-page report dated June 21, 2021. [124] I found Dr. Sheppard’s evidence to be balanced, fair, and helpful. [ 141 ] Dr. Sheppard reported that Mr. Mucpa has a history of mental illness. In 2006, medical professionals diagnosed a psychotic disorder. At other times, medical professionals have raised schizophrenia as a possible diagnosis. From time to time over the past ten years, Mr. Mucpa has taken anti-psychotic medication. Although Mr.

Mucpa has reported that that medication “keeps me stable,” [125] he did not take any medication in the four months leading up to July 3. Mr. Mucpa also reported seven suicide attempts along with audio and visual hallucinations. Mr. Mucpa told Dr. Sheppard that he did not experience any hallucinations on July 3. [ 142 ] Dr. Sheppard noted that Mr. Mucpa reported that he has had an “extensive history” of substance abuse starting at the age of eight. [126] Mr. Mucpa was bullied at school, and he quit at the age of 13. [ 143 ] Dr. Sheppard reported that Mr.

Mucpa also has a long history of “poor anger control,” noting: There is considerable evidence, then, that Mr. Mucpa’s lability of mood, his difficulties with emotional and behavioural regulation, and his poor impulse control, have in the past temporarily, but regularly, made him a risk to the safety of both himself and others. [127] [ 144 ] Dr. Sheppard continued saying that Mr. Mucpa’s mental health has been compromised by “a variety of co-morbid clinical issues:” … he probably suffers from Fetal Alcohol Spectrum Disorder on account of prenatal exposure to substances.

He probably has attachment difficulties, related to his childhood history of deprivation and emotional abuse … He is cognitively impaired, likely of borderline intelligence. As an adult his cognitive impairment appears to include “executive dysfunction,” denoting impairment in higher level cognitive functions such as planning, organizing, regulation of mood and behaviour, impulse control, and foreseeing the consequences of his actions. He is vulnerable to negative mood states, including depression and anger.

Finally, he appear to suffer from a psychotic disorder, perhaps Schizophrenia [sic] or a related illness which, when not treated with antipsychotic medication, can result in impaired contact with reality. [128] [ 145 ] Dr. Sheppard opined that Dr. Wright’s psychological testing confirmed “the likelihood of Neurodevelopmental Disorder[sic].” [129] [ 146 ] Significantly, Dr. Sheppard reported that any possible deterioration in Mr. Mucpa’s state of health in the four months prior to July 3 “remains unclear.” [130] There are no sources of information in this regard apart from Mr.

Mucpa’s self-report, which is vague and of unknown reliability. Although he was cooperative when I assessed him in March 2018, he is not a good historian. [131] [ 147 ] This conclusion is significant because Dr. Sheppard acknowledged in Court that his assessment was largely based upon Mr. Mucpa’s self-report [132] of which Dr. Sheppard noted “is … at odds with what he had previously told the RCMP.’ [133] [ 148 ] While Mr. Mucpa had given a detailed account of the incident to the police, he told Dr. Sheppard that he had gotten “mad” and that after grabbing Ms.

Erkloo by the neck from behind, “I blacked out.” [134] This discrepancy looms large in my specific intent analysis, so Dr. Sheppard’s views on this issue are instructive:

The reason for this discrepancy, in terms of Mr. Mucpa’s various reports of the incident, is not known. It may represent an unsophisticated attempt at dissimulation, a belief that by claiming to have “blacked out” it might diminish Mr. Mucpa’s degree of culpability. There are no clinical reasons, that I am aware of, that would explain the apparently new onset of amnesia for some of the events of July 3, 2017. [135] [ 149 ] In cross examination, Dr. Sheppard testified respecting Mr. Mucpa’s memory as follows: Q: [Referring to Dr. Sheppard’s interview with Mr.

Mucpa] And how likely would it be in your view that a memory like that could be so easily forgotten within, within a year? A: I don’t think it’s very likely. Q: You had occasion to review the Correctional Services of Canada records, and you’re aware of the circumstances in which Mr. Mucpa found himself in the care of the Correctional Service of Canada and you have read those reports? A: Yes, that’s correct. Q: And were you aware, without getting into the details of that offence, Doctor, that in those circumstances that [sic] Mr.

Mucpa gave the details of the offence to the police, told a different story to the probation officer who was doing his preparation for his PSR report, and then at the Intake evaluation at Joyceville he told them that he couldn’t remember the offence, that he had blacked out. You were aware of that? A: I was, I was aware of that. [136] [ 150 ] Before I continue, two points arise from this evidence. [ 151 ] I accept Dr. Sheppard’s evidence that it would not be “very likely” that Mr. Mucpa would forget what happened on July 3 because a year had gone by.

However, the issue raised by the Correctional Service of Canada (CSC) records is problematic. [ 152 ] Although neither party commented on this evidence in their submissions, I must address it. In my view, the CSC evidence is highly prejudicial. The fact that Mr. Mucpa told different versions of the same event to different authorities respecting a different matter could potentially lead to an inference that Mr. Mucpa lied to Dr. Sheppard. In effect, this is character evidence. Mr. Mucpa has not put his character in issue, so it was not open for the Crown to lead evidence of bad character.

Consequently, I have not considered the CSC evidence in my analysis. [ 153 ] Noting that there is a “high likelihood that Mr. Mucpa’s psychiatric condition was unstable at the time of the incident,” Dr. Sheppard concluded: In the absence of any indication, either from Mr. Mucpa’s self-report or the collateral reports available, that this offence was the product of psychosis, I think it unlikely that Mr.

Mucpa would be eligible for a defence of Not Criminal Responsible on Account of Mental Disorder. [sic] His statement that he was motivated by anger, which quickly escalated and became uncontrollable, appears consistent with the objective evidence, and with Mr. Mucpa’s established history of poor anger control and interpersonal violence. He was, in my opinion, able to appreciate the nature and quality of his actions and able to know that they were wrong…As a clinician, I am not able to say to what extent, if any, Mr.

Mucpa’s criminal responsibility for this offence might have been diminished on account of the influence of his mental health problems … I don’t believe he would be relieved of criminal responsibility by virtue of Section 16 (1) [sic] of the Criminal Code .” [137] [ 154 ] Defence Counsel submits that I should draw the following conclusions from Dr. Sheppard’s evidence: 32 As Dr. Sheppard testified, Mr. Mucpa’s executive functioning is seriously impaired. Primarily, he opined, in the areas of impulse

control, mood regulation, and behavioural control. 33 This dysfunction manifests itself in an inability to cope with stressors and is exacerbated by alcohol consumption and also by the failure to take antipsychotic medications that is meant to stabilize mood and reduce the risk of angry and violent outbursts. 34 Dr. Sheppard’s evidence is not simply that Mr. Mucpa acted out of anger. He opined that the events at the material time triggered the sudden eruption of homicidal rage. 35 In his evidence Dr. Sheppard speaks to Mr.

Mucpa’s inability to self-regulate, a behavioural impairment and his impulsivity – acting without thinking : Q: And when someone is in this sort of state of rage can you tell us a little bit about sort of what the thinking process or self regulation in that amount would be? A: Well, I don’t think there is a lot of thought actually involved. I think at that point his actions are regulated by his emotions.

I mean the way he described it to me was, I think this is probably accurate, that his anger reaches a certain level he loses all control. 37 The act of killing must be proven to be the wilful product of a conscious and operating mind. A mind that is functioning in a competent way. Mr. Mucpa’s mind was not operating in this way. He was unable to control his anger and unable to control his actions. This evidence raises a doubt with respect to his possession of the requisite intent for murder [138] [Underlining in original] [ 155 ] As I shall note in my analysis, Defence Counsel did not provide Dr.

Sheppard with copies of the audio and visually recorded statements made by Mr. Mucpa to the police and of his conversation with his mother. [139] This evidence constitutes the strongest and most probative contemporaneous evidence of Mr. Mucpa’s state of mind at the time of and immediately following the incident. This evidence directly contradicts Mr. Mucpa’s statement to Dr. Sheppard that he blacked out, and it significantly undermines the weight which I may place on this aspect of Dr. Sheppard’s opinion. V. ISSUES [ 156 ] This case raises two issues: 1. Has the Crown proven that Ms.

Erkloo died on July 3 as a direct result of the injuries inflicted on her by Mr. Mucpa? and 2. Has the Crown proven that Mr. Mucpa intended to kill Ms. Erkloo? [ 157 ] In my view, the answer to both questions is yes. VI. ANALYSIS [ 158 ] In my analysis, I shall review the evidence and my findings of fact which are probative and relevant to the issue of specific intent. [ 159 ] Defence Counsel submitted that Mr. Mucpa’s post-offence conduct provides probative circumstantial evidence of Mr. Mucpa’s

cognitive mental state at the time of the offence. [140] I agree, although I draw different conclusions from the evidence. [ 160 ] The eyewitness evidence presented by the prosecution spans the five-and-a-half-hour period between approximately 0800 when Mr. Mucpa met Mr. Killiktee and 13:35 when Mr. Mucpa called the police. Surprisingly, the Crown did not call evidence from Cst. Longmire who was the first police officer to have contact with Mr. Mucpa not long after the incident (nor any other police officer who had subsequent contact with him that afternoon).

I did hear evidence from the police during the voir dire, but I may not consider it as the Crown did not tender it at trial. [ 161 ] Although I found the way in which the Crown presented its evidence to be disjointed and at times confusing, I am satisfied that it proves that Mr. Mucpa’s actions were deliberate, intentional, purposeful, and carried out with a view to killing Ms. Erkloo. I shall examine individually, then cumulatively, the impact Mr. Mucpa’s alcohol consumption on July 3 and his mental illness on his actions. A.

The evidence of alcohol consumption [ 162 ] I have already noted that I have found the evidence provided by the civilian witnesses in direct examination to be more reliable than their answers to leading questions in cross examination. I also find that Mr. Mucpa was truthful when he spoke to the police and to his mother. I shall now outline my findings respecting Mr. Mucpa’s use of alcohol on July 3. [ 163 ] The evidence surrounding Mr. Mucpa’s use of alcohol must be viewed within the time frame in which he consumed it. In my experience, witnesses have great difficulty in estimating time and its passage.

This is evident here – and very typical - where the civilian witnesses do not refer to cell phones or watches. [141] Yet, the question of time in this case is important. [ 164 ] The evidence

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