R. v. Panipakoocho, 2022 NUCJ 33

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Panipakoocho, 2022 NUCJ 33 Date: 20220928 Docket: 08-19-815 Registry: Iqaluit Crown: His Majesty the King -and- Accused: Wayne Panipakoocho __________________________________________________________________ Before: Madam Justice Charlesworth Counsel (Crown): Counsel (Accused): A. Dion J. Johnson J. Foord K. Selkirk Location Heard: Date(

s) Heard: Iqaluit, Nunavut March 28 – April 8, 2022 Matters: Trial decision on first degree murder charge contrary to Criminal Code of Canada, RSC 1985, c C-46, ss. 229 REASONS FOR DECISION (NOTE: This document may have been edited for publication) I. INTRODUCTION

I. INTRODUCTION [ 1 ] The accused, Wayne Panipakoocho (“Mr. Panipakoocho”), is charged with one count of first degree murder contrary to section 235(1) of the Criminal Code, R.S., c. C-34, s. 1 ( Criminal Code ) in relation to the killing of Hannas Scottie Braun (Mr. Braun) on June 30, 2019. [ 2 ] Mr. Panipakoocho admits that shortly after 7:25 a.m. on June 30, 2019, while inside his aunt’s apartment in Iqaluit, he fired a single shot at Mr. Braun from a Ruger, model M77 Mark II, .270 calibre WIN bolt action rifle that had been stolen earlier that morning. The bullet hit Mr.

Braun in the left thigh and cut through the femoral artery. The bullet traveled through the left thigh before entering Mr. Braun’s right thigh about 5 cm lower, where it cut through that femoral artery as well. Mr. Braun bled to death shortly after being shot. [ 3 ] Mr. Panipakoocho pled not guilty to the charge of first degree murder and proceeded to trial. The trial commenced on March 28, 2022. II. THE ISSUES A. Murder [ 4 ] The primary issue in this case is whether the Crown has proven beyond a reasonable doubt that Mr. Panipakoocho murdered Mr. Braun contrary to either

section 229 (a)(

i) or (ii) of the Criminal Code . [ 5 ] Sections 229(a)(

i) and (ii) state that a person commits murder when that person causes the death of another and

i) means to cause death; or ii) means to cause the victim bodily harm that he knows is likely to cause death and is reckless whether death ensues or not. [ 6 ] To secure a murder conviction in this case the Crown must prove Mr. Panipakoocho either meant to cause Mr. Braun’s death when he fired the high powered rifle at Mr. Braun’s leg from close range, or that Mr. Panipakoocho meant to cause bodily harm, by shooting Mr. Braun in the leg, that he knew would likely result in death and was reckless as to whether death ensued. B.

First or Second Degree [ 7 ] Murder is either first degree or second degree murder (s. 231(1)). Murder is carried out in the first degree when it is planned and deliberate. Murder that is not first degree is second degree murder (231(7)). [ 8 ] Should the Crown prove Mr. Panipakoocho murdered Mr. Braun, a determination of whether the murder was planned and deliberate would need to be made. Again, the onus is on the Crown to prove first degree murder beyond a reasonable doubt. C. Manslaughter [ 9 ] Pursuant to

section 234, culpable homicide that is not murder (or infanticide) is manslaughter. If I am not satisfied the Crown has met its burden regarding murder, I must then determine whether the Crown has proven beyond a reasonable doubt that Mr. Panipakoocho

caused Mr. Braun’s death by means of an unlawful act (s. 222(5)(a)). If the Crown meets this burden Mr. Braun would be found guilty of manslaughter. [ 10 ] Should the Crown fail to prove Mr. Panipakoocho is criminally responsible for the death of Mr. Braun, an acquittal would result. III. THE POSITION OF THE PARTIES A. The Defence [ 11 ] Mr. Panipakoocho admits that he caused the death of Mr. Braun by shooting him on the morning of June 30, 2019. Mr.

Panipakoocho advances two separate defences to the charge of murder: 1) self-defence/defence of others; and 2) provocation. [ 12 ] Self defence is a complete defence to the charge of murder. Mr. Panikpakoocho asserts there is an air of reality to his defence that he was defending his cousin and himself from Mr. Braun the morning of the shooting and that the Crown did not rebut the defence (s.34). As such, an acquittal is the proper verdict. [ 13 ] In the alternative, Mr. Panipakoocho puts forward that the shooting was done in the heat of passion caused by Mr. Braun’s sudden provocation of Mr.

Panipakoocho on the morning of the killing. The defence of provocation, if successful, would serve to reduce the culpability of Mr. Panipakoocho from murder to manslaughter (s. 232). [ 14 ] Mr. Panipakoocho also puts forward that intoxication prevented him from forming the specific intent necessary to be found guilty of murder. Such specific intent is not necessary for manslaughter. A finding of culpability for the killing, combined with a finding that his level of intoxication prevented Mr. Panipakoocho from forming a specific intent, would also result in a verdict of manslaughter. B.

The Crown [ 15 ] The Crown’s position is that Mr. Panipakoocho is guilty of first degree murder. The evidence tendered at trial proves beyond a reasonable doubt Mr. Panipakoocho meant to cause Mr. Braun’s death when he shot him, at close range, with a high powered rifle, or meant to cause bodily harm that he knew was likely to cause death and was reckless as to whether death ensued. [ 16 ] The Crown further asserts the murder was in the first degree as it was planned and deliberated upon. Mr.

Panipakoocho sent a series of social media posts immediately prior to the shooting to his girl friend and another acquaintance. The posts stated repeatedly that Mr. Panipakoocho was about to shoot Mr. Braun as Mr. Panipakoocho was aggravated at Mr. Braun’s failure to leave the apartment after Mr. Panipakoocho asked him to do so. The posts continued repeating that Mr. Braun was going to be shot by Mr. Panipakoocho up until the moments before Mr. Panipakoocho pulled the trigger and fatally shot Mr. Braun. IV. THE BACKGROUND [ 17 ] The facts of this case are largely not in dispute.

At 7:25 a.m. on the morning of June 30, 2019, Mr. Panipakoocho aimed a Ruger, model M77 Mark II, .270 calibre WIN bolt action rifle at the leg of Mr. Braun and fired a single shot. The shooting took place indoors, at Mr. Panipakoocho’s aunt’s apartment in Iqaluit. The bullet from the high calibre hunting rifle tore through the femoral arteries of both of Mr. Braun’s legs. Mr. Braun bled to death shortly after being shot.

[ 18 ] The shooting took place after a night of misadventure, posturing, and drinking by Mr. Panipakoocho. Having moved to Iqaluit from Pond Inlet only days before the shooting, Mr. Panipakoocho appeared to be eager to show his street toughness to his new social circle in Iqaluit. [ 19 ] The hours preceding the early morning shooting saw Mr. Panipakoocho and a small circle of peers venture from house to house drinking alcohol and smoking marijuana. A trip Mr.

Panipakoocho took to Apex earlier that morning with an associate resulted in the theft of several firearms, including the weapon that would eventually be used by Mr. Panipakoocho to shoot Mr. Braun. [ 20 ] Mr. Panipakoocho ended his night at his aunt Brenda’s apartment, where he had been staying since moving from Pond Inlet. Mr. Panipakoocho was joined by his cousin, Pauline Kublu, and Mr. Braun in the Iqaluit apartment. No one else was there. [ 21 ] Mr. Braun’s presence in Brenda’s home early that morning aggravated Mr. Panikapoocho. Mr. Panipakoocho was upset that Mr.

Braun would not leave the residence when Mr. Panipakoocho asked him to do so. Mr. Braun had made flirtatious advances towards Pauline, including a failed attempt at a kiss in the living room. Pauline removed herself from the living room and went to the kitchen to give herself distance from Mr. Braun. She began to prepare a meal of ground beef. [ 22 ] Mr. Panipakoocho became increasingly agitated that Mr. Braun would not leave the apartment. Between 6:49 a.m. and 7:24 a.m. Mr.

Panipakoocho sent direct messages via Facebook to his girlfriend Jessica Komangapik and Dennis Ipeelee, the associate who had accompanied Mr. Panipakoocho to Apex earlier that morning. Mr. Panipakoocho repeatedly messaged his frustration with Mr. Braun’s continued presence in the apartment. Mr. Panipakoocho also wrote of his intent to shoot Mr. Braun with a rifle stolen earlier that night. At 7:25 a.m., a minute after his last social media posting to his girlfriend, Mr Panipakoocho picked up the gun and shot Mr. Braun in the leg. [ 23 ] After shooting Mr. Braun, Mr.

Panipakoocho hurriedly exited the apartment and ran down the hill at the back of his aunt’s house. He dropped the rifle a few hundred yards along. Mr. Braun bled to death after Mr. Panipakoocho left the apartment. [ 24 ] Mr. Panipakoocho was arrested just before noon on June 30, 2019. [ 25 ] The gravity of the events of the tragic morning hit home instantly to Mr. Panipakoocho at 11:48 a.m. when the police came upon him and advised that he was being arrested for murder. Having already been crying and in a distraught state, Mr.

Panipakoocho broke down completely crying: “ Oh, did he die?!” and, “I tried to aim it on his leg, so he wouldn’t die. Oh, I’m sorry…” [ 26 ] The night of tragic misadventure had ended. V. THE LAW A. Defence of Others [ 27 ] The Criminal Code sets out the requirements for deciding whether the accused acted in defence of others, or in self defence, in

section 34 : 34

(1) A person is not guilty of an offence if (

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(

c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances ofthe person, the other parties and the act, including, but not limited to, the following factors: (

a) the nature of the force or threat; (

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use offorce; (

c) the person’s role in the incident; (

d) whether any party to the incident used or threatened to use a weapon; (

e) the size, age, gender and physical capabilities of the parties to the incident; (

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force andthe nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (

g) the nature and proportionality of the person’s response to the use or threat of force; and (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. [28] This is an affirmative defence which attracts the “air of reality” test. For the defence to have an “air of reality”, it must be shownthat a properly instructed jury (or judge sitting alone) could acquit the accused on the basis of the defence. As trial judge, I mustconsider the totality of the evidence while assuming the evidence to be relied upon by the accused in asserting the defence is true.

If anair of reality is demonstrated, the burden then moves to the Crown to disprove at least one of the three elements of subsection (1). (R. v.Cinous, 2002 SCC 29 ). [29] The evidence the defence looks to to demonstrate self defence/defence of others in this case comes from: the text messages Mr.Panipakoocho sent to his girlfriend and Mr. Ipeelie saying he wanted Mr. Braun out of the house, but he would not leave; the evidence ofBrenda Panipakoocho that her nephew was trying to protect Ms. Kublu; and the evidence of Mr. Dederick that Ms. Kublu told him sheasked Mr.

Panipakoocho for help but “he took it the wrong way”. [30] On the totality of the evidence heard, I do not find an air of reality exists to this defence. All three parts of 34(1) are required tomake out the defence. The point blank shooting of an unarmed Mr. Braun, with a high powered rifle, in no way could be found to bereasonable in the circumstances and as such section 34(1)(

c) is not met. For greater certainty the 34(2) analysis shows why an air ofreality is not present: (

a) the threat Mr. Braun posed is unclear. If one existed, it did not involve a weapon; (

b) there is nothing to suggest any threat of force from Mr. Braun was imminent. Ms. Kublu had removed herself after the unwantedadvance and was in the kitchen cooking a meal. Mr. Braun was in the dining room area; (

c) Mr. Panipakoocho was making threats to harm Mr. Braun; his role was aggressive; (

d) the only party to make a threat or use a weapon was Mr. Panipakoocho;

(

e) Mr. Panipakoocho was about eight years younger than Mr. Braun, but their sizes and physical capabilities seem to have been similar; (

f) and (f.1) there was no relevant relationship or communication between the parties. They had seemed to get along earlier in the evening; (

g) Mr. Panipakoocho’s response was not proportional: even if I assume there was a threat from Mr. Braun, it did not involve a weapon; (

h) the shooting was not in response to a lawful threat. B. Provocation [ 31 ]

Section 232 states as follows in relation to murder being reduced to manslaughter on account of provocation: 232.

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

(2) Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool. [ 32 ] Subsection (2) requires that the act which provokes the accused must be conduct that would constitute an indictable offence that is punishable by five years or more imprisonment.

No evidence was adduced which satisfies me that Mr. Braun committed an indictable offence. VI. ANALYSIS A. Murder [ 33 ] As noted above, to secure a murder conviction, the Crown must prove beyond a reasonable doubt that Mr. Panipakoocho, in causing the death of Mr. Braun,

i) meant to cause his death, or ii) meant to cause him bodily harm that he knew was likely to cause his death and was reckless whether death ensued or not. [ 34 ] I find the Crown has not proven murder. [ 35 ] Mr. Panipakoocho made a needless, pathetic, and tragic decision on the morning of June 30, 2019 when he pointed a rifle at Mr. Braun’s legs and fired a single shot. The stupidity of such a decision cannot be explained or justified. It can, however, be used to understand the intent Mr. Panipakoocho had when he shot Mr. Braun. [ 36 ] Mr. Panipakoocho was in close quarters with Mr.

Braun, indoors, and unobstructed before him. There was no impediment to shooting Mr. Braun anywhere in the body. Mr. Panipakoocho would surely have understood that a shot to the torso or head would likely kill Mr. Braun. That Mr. Panipakoocho chose to point the rifle and shoot at Mr. Braun’s legs supports his intent to only injure him, however significant the injury to the legs would have been from such a high powered weapon. [ 37 ] Mr. Panipakoocho’s excited and distraught utterance to the police upon his arrest that he was surprised Mr. Braun had died and that he “tried to aim it on his leg, so he wouldn’t die.

Oh, I’m sorry…” satisfies me that Mr. Panipakoocho did not intend to kill Mr. Braun.

[ 38 ] Going further, the evidence provided by Dr. Parai, the forensic pathologist, was that in her experience it was uncommon for a single gunshot wound to the thigh to be the cause of death. Dr. Parai has conducted approximately 3000 autopsies and her evidence was that a gunshot to a leg is usually found to contribute to death when there are “lots” of other wounds to the body. [ 39 ] Dr. Parai’s evidence makes sense in the context of this case. It is remarkable that a single shot to the leg caused Mr. Braun’s death. It did so because it cut through both femoral arteries.

The preciseness of the shot was not evidenced to be by skill, but rather was the result of a tragic stroke of fatal bad luck for Mr. Braun. VII. CONCLUSION [ 40 ] Mr. Panipakoocho portrayed an image on social media on the evening of June 29 and morning of June 30 that he was the toughest of the tough on the streets of his new home. His escapades that evening included offers to kill, theft, and boasts on Facebook that he was about to shoot Mr. Braun. However, at the time he pulled the trigger, Mr. Panipakoocho intentionally aimed and shot at a part of Mr. Braun’s body he thought would not kill him.

The shooting constituted an unlawful act which resulted in the death of Mr. Braun. However, because Mr. Panipakoocho chose to aim the rifle at Mr. Braun’s leg, and because he did not believe the shot would be fatal, I find it was not his intent to kill him. [ 41 ] On the whole of the evidence, and despite Mr. Panipakoocho’s Facebook declarations, I find that Mr. Panipakoocho lacked the requisite criminal intent for murder. I find however that he caused the death of Mr.

Braun by the unlawful use of a firearm and accordingly find him guilty of manslaughter. [ 42 ] This matter is adjourned to the October 4, 2022 in custody docket at 9:30 a.m. in Iqaluit to set a date for sentencing. Dated at the City of Iqaluit this 28th day of September, 2022 ___________________ Justice S. Charlesworth Nunavut Court of Justice