2016 nucj 02 r. v. kingwatsiak

8/20/2019 2016 NUCJ 02 R. v. Kingwatsiak

1/46

Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICECour de justice du Nunavut

Citation: R. v. Kingwatsiak, 2016 NUCJ 02

Date: 20160202Docket: 03-10-122 Registry: Iqaluit

Crown: Her Majesty the Queen

-and-

Accused: Peter Kingwatsiak

________________________________________________________________________

Before: The Honourable Madam Justice Tulloch

Counsel (Crown): A. Porteous; B. MacLarenCounsel (Accused): J. Morton

Location Heard: Iqaluit Nunavut

Date Heard: June 23-26, 2015; August 27, 2015; December 7, 2015Matters: Criminal Code, s. 235(1); s. 348(1)(b)

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)


2/46

2

Table of Contents

REASONS FOR JUDGMENT ................................................................................... 1

I. INTRODUCTION........................................................................................................... 3

II. ADMISSIONS OF FACT ............................................................................................. 4

A. Agreed Facts: Prior to September 17, 2010 ...................................................... 4

B. Agreed Facts: September 17 and 18, 2010 ....................................................... 5

C. Agreed Facts: Early morning, Sunday, September 19, 2010 ......................... 6

D. Agreed Facts: Day and Evening, Sunday, September 19, 2010 .................... 7

E. Agreed Facts: Monday, September 20, 2010 .................................................. 10

F. Agreed Facts: After September 20, 2010 ......................................................... 16

G. Agreed Facts: Pathologist’s Report .................................................................. 17

III. EXPERT EVIDENCE ............................................................................................... 17

A. Dr. Philip Klassen ................................................................................................. 19

B. Doctor David Rosenbloom .................................................................................. 21

C. Dr. Gary Chaimowitz ........................................................................................... 23

IV. CIVILIAN WITNESSES ........................................................................................... 24

A. Manu Kingwatsiak ................................................................................................ 24

B. Etidloi Adla............................................................................................................. 25

C. Tytoosie Tunnillie ................................................................................................. 27

V. EVIDENCE FROM THE ACCUSED ...................................................................... 28

VI. POSITION OF THE PARTIES ............................................................................... 34

A. Crown’s position ................................................................................................... 34

B. Defence’s position ................................................................................................ 34

VII. ANALYSIS ................................................................................................................ 35

A. Murder ..................................................................................................................... 35

B. Planning and deliberation .................................................................................... 40

VIII. FINAL CONCLUSION ........................................................................................... 45


3/46

3

I. INTRODUCTION

[1] In the early morning hours of September 20, 2010, Peter Kingwatsiakcommitted two very serious offences in his home community of CapeDorset, Nunavut. He stabbed his uncle, Manu Kingwatsiak, with a

knife in the face causing a permanent scar and then he shot and killedhis step-brother, Mappaluk Adla.

[2] To his credit, Mr. Kingwatsiak admits that he did these things.

[3] Although the offence involving Manu Kingwatsiak was included in theindictment due to its underlying circumstances and proximity to themurder, the focus throughout this trial was directed to the charge ofmurder.

[4] This is because the charge of aggravated assault for stabbing hisuncle requires only general intent on the part of the accused. On theother hand, for the accused to be found guilty of murder, he musthave specific intent.

[5] In plain language, this means that in order to find Mr. Kingwatsiakguilty of murder, he must have known in his own mind that death waslikely to result from his actions at the time when the shootingoccurred.

[6] What is at issue for this Court to decide is whether the accused had

the specific intent necessary to be convicted of murder and, if so,whether that murder was planned and deliberate in thecircumstances.

[7] Defence submits that the accused was so intoxicated by the effects ofsniffing gasoline and so upset that morning that he could not form thespecific intent required for murder and that he should therefore beconvicted of manslaughter.

[8] Crown says there is ample evidence of both specific intent and

planning and deliberation in this case and that Peter Kingwatsiak isguilty of first degree murder.


4/46

4

II. ADMISSIONS OF FACT

[9] Prior to the start of the trial, Crown and Defence submitted what iscalled an “ Agreed Statement of Fact”. It contained a number ofimportant facts which are admitted without the need to call testimony.

This assisted the Court a great deal.

[10] The initial document entitled Agreed Statement of Fact was madeExhibit 1 in the trial.

[11] Prior to closing , new document was filed with the Court entitled: Admissions of fact pursuant to Section 655 of the Criminal Code:Post-Trial Version [Post-trial version]. I will now mark it as Exhibit #13.

[12] I have of course carefully reviewed both documents and I find that the

changes between the first and the second document are minor. A fewwords were added and a few subtracted in order to specificallyconform to the evidence given at trial.

[13] I have relied only on the Post-trial version to assist with my decisiontoday.

[14] These undisputed facts now form part of the evidence. In addition tothese lengthy admissions, further evidence was called at trial.

[15] Transcripts of the evidence were ordered. Six volumes containing 661

pages were received and carefully reviewed.

[16] I will now provide you with a summary of those agreed facts inchronological order.

[17] During trial, the parties referred to the deceased as both Mappalukand Mapp. For the sake of consistency, I will do the same.

A. Agreed Facts: Prior to September 17, 2010

[18] A teenage friend of the accused, Connear Ross, told police that a

couple of weeks before the death, Peter Kingwatsiak talked aboutbeating up Mapp. He repeated this intention a few times while theywere together. The accused said it near the school and he repeated itthree or four days later while they were walking around town. PeterKingwatsiak appeared to be sober and did not smell of gas or alcoholwhen he made these comments. The accused admits that he madethese utterances in the circumstances described.


5/46

5

[19] Approximately three days before the accused shot Mapp, he toldTommy Padluq (his best friend) that he was going to kill Mapp. Hesaid this more than once and Tommy says that he seemed “happy”when he said it. Tommy did not smell gas or alcohol on the accusedwhen the comments were made.

B. Agreed Facts: September 17 and 18, 2010

[20] Dances were held at the Cape Dorset Community Hall [CommunityHall] on Friday and Saturday night. Each dance lasted fromapproximately 10 p.m. to 1 a.m. the following morning. Geena Roseand Mapp spent time together at, at least one of these dances.Maryann Samayualie noticed the accused sitting in the corner withTommy Padluq watching Geena Rose and Mapp.

[21] Qabaruak Samayualie went to the September 17th, dance with Mapp.They ran into the accused and had a conversation. Mr. Samauyalieobserved that the accused and Mapp “were getting along good”.

[22] The accused visited his friend, Tytoosie Tunnillie, on SaturdaySeptember 18, and his friend observed that Peter was cranky and

jealous over a girl.

[23] Siaza Padluq was out walking just before 10:30 p.m. on Saturdaywhen the accused approached her. They had a short conversation.The accused said to Siaza in Inuktitut: “if Geena Rose and Mappaluk

talks again or hangs out I’m gonna kill him no matter what”. He alsosaid that he was jealous of Mapp.

[24] Tommy Padluq attended the Saturday night dance with the accusedat the Community Hall. Neither of them consumed alcohol or drugsduring the evening. The accused appeared to be acting normalthroughout. Tommy saw that the accused was “very mad” and“jealous” because Geena Rose was hanging out with Mapp at thedance. At one point, the accused said he was going home and left.When he returned to the Community Hall about 20 minutes later, he

asked Tommy to feel bullets which he had put in his hoody pocket.Tommy identified about ten .303 bullets.


6/46

6

[25] On two separate occasions during the Saturday night dance, theaccused explicitly asked Tommy if he would help him kill Mapp.Tommy Padluq described him as being “mad” when he asked thesequestions. The accused does not have any recollection of askingTommy these questions or of going home for the bullets. He does not

recall asking him to feel the bullets in his pocket, but he does notdispute Tommy’s recollection.

[26] At no time did Tommy smell alcohol, drugs, or gasoline on theaccused. Tommy has never seen the accused sniff gasoline.

C. Agreed Facts: Early morning, Sunday, September 19, 2010

[27] After the Saturday night dance ended at approximately 1 a.m. Sundaymorning, Mapp and some friends went to the Co-op Store [Co-op].

[28] Connear Ross left the Community Hall to hang out near the hamletoffice with some friends including Henry Ainalik and the accused. Theaccused told Connear in Inuktitut: “nobody’s going to have problemswith Mapp anymore. You aren’t going to have problems with Mappanymore.” Mr. Ainalik and Mr. Ross both heard the accused say inInuktitut: “he has to be living, so he’s living” referring to Mapp. Aftermaking this comment, the accused left.

[29] Geena Rose went walking with her friends. They eventually wound upnear the Co-op. Mapp joined them and when they were in the valley

the accused saw them together. He came up to Geena suddenly andthey argued for about half an hour. The accused was jealous and toldGeena Rose “I will kill him” referring to Mapp. She asked him why andhe said he would kill Mapp if she spoke to him or hung out with himagain. He told her that he was watching them “24/7”. She walkedaway and returned to the Co-op to be with her friends.

[30] Sometime after 2 a.m., Geena Rose left the Co-op and again wentwalking in the valley with friends. She looked towards the hill in thevalley and saw the accused holding a .303 calibre rifle aimed at Mapp

who was near the baseball diamond, walking up the hill towards thevalley. The two men were approximately 20 to 25 feet apart.


7/46

7

[31] She ran up to the accused and yelled at him to stop. One friendreported hearing Geena Rose shout at the accused: “Peter, Peter,don’t kill him, kill me.” Another friend reported hearing Geena Roseyell out three times words to the effect of “shoot me instead”. A thirdreported hearing Geena Rose yell “we never did anything” and

hearing the accused tell her to “fuck off”. A fourth heard Geena Rosetell the accused that she wanted the rifle’s bullets and heard theaccused say no.

[32] Geena Rose grabbed the accused and he told her to leave so thatshe wouldn’t have to watch what he was going to do. He told her hewas going to kill Mapp and that he had to do it. She told him he didn’thave to do it and she told him a second time to put the rifle away.This time he lowered the rifle and placed it against a pole. Shepushed him away from the rifle and held him tightly around the waist

to prevent him from reaching back for it. They spoke for approximatelyhalf an hour. He tried to get her to go out with him. She refused. Theaccused told her that he was jealous because he thought she wasgoing out with Mapp. She told him to unload the rifle. He did and gaveher ten bullets which said .303 on them. She told him to go home.

[33] The accused took the rifle and told Geena Rose he was going home.He walked in the direction of his father’s house. At no time did shesmell any alcohol, gasoline, or drugs coming from the accused.

[34] As Mapp was leaving the area in which the accused had pointed a

rifle at him, he ran into Tim Ottokie. Mapp greeted him by saying: “heyTim, you wanna watch me get killed?” Mr. Ottokie said “no” andcontinued on his way.

D. Agreed Facts: Day and Evening, Sunday, September 19, 2010

[35] Sometime later on Sunday morning, Siaza Padluq was approachedby the accused who told her that he had “almost killed Mappaluk”. Hesaid that he was gonna kill Mapp, but didn’t because he did not wantGeena Rose to see it happen.

[36] At about 1 p.m., the accused went to his mother’s house, QaluitukKingwatsiak. They chatted and the accused didn’t mention anythingabout Mapp or his problems. He stayed for a couple of hours beforehe left.


8/46

8

[37] The accused went out boating with his paternal grandparents at somepoint during the day. After the trip, they brought some ammunition andthree firearms to his father’s house: a black .22 calibre rifle, a tanbrown .410 shotgun, and a tan brown 28 or 20 gauge shotgun.

[38] I pause here to note that the accused was steadfast in his testimonythat the .22 calibre rifle talked about here was the one that heretrieved from the boat. It is the same weapon that was used by himto shoot and kill Mr. Adla. Counsel and this Court agree that wherethe rifle came from is not important.

[39] At approximately 6:45 p.m., Mialisa Nuna and the accused werewalking together when they came across Geena Rose who was onher way to church with some friends. This was the first time thatGeena Rose and the accused had seen each other since the incident

with the rifle early that morning.

[40] The accused asked Geena Rose for the bullets back and whether shewas following him. He asked her to go for a walk with him, but sherefused. He asked if she was with Mapp or if she was going out withhim to which she responded no. He asked again for the bullets, butshe told the accused she had thrown them away. She then went intothe church.

[41] At approximately 7:30 to 8:00 p.m., Mialisa and the accused werewalking and Mialisa told the accused that she missed Mappaluk as

they had broken up very recently. The accused replied that “I don’twant to do this, but I love my girl” and “I don’t want to hurt him but Ithink he’s going after my girl” or, “I love my girlfriend but I don’t wantto hurt him.” He did not explain these comments further.

[42] Sometime that evening, Pudluq Qavavau was walking aroundlistening to music in the Muliujuq area where he came across theaccused, who was alone. The accused asked him if he wanted tosmoke weed with him, but Mr. Qavavau declined.


9/46

9

[43] The accused said that he planned to drink the next day. He was“pissed off” because he believed that his ex-girlfriend, Geena Rose,was “cheating” with Mappaluk. He said words to the effect of “if I seethem together in this town I’m gonna kill him”. Mr. Qavavau doesn’tbelieve the accused had been sniffing gas when they ran into each

other that evening. The last time he had sniffed gas with the accused,the accused had been badly burned. Mr. Qavavau states that thisexperience really scared them both and they never sniffed togetheragain.

[44] The accused says he has no recollection of the conversation with Mr.Qavavau, but does not dispute the accuracy of Mr. Qavavau’s versionof events. He told Dr. Klassen in 2012 that the incident where heburned himself due to sniffing occurred when he was 13.

[45] The accused and Mialisa later went to Mialisa’s house. Her parentsTaqialuk and Natsivak Nuna were home. They said he looked normaland was just like himself during the visit. Mialisa described theaccused as seeming “happy”.

[46] During his visit at Mialisa’s house, he asked if he could use her laptopand go on Facebook. She agreed. He was online for approximatelyone hour. Mialisa went to check on him at one point and observedthat he was chatting online with Geena Rose and another girl.

[47] During their online chat, the accused asked Geena Rose again to go

out with him and to let him have another chance. She told him no andsigned off.

[48] Natsivak reported that she didn’t notice how long he was on thecomputer, but after he was finished he looked fine. The accused

joined Mialisa in the living room and watched TV with her for tenminutes before leaving sometime between 10:30 and 11:00 p.m.

[49] The accused did not consume any drugs or alcohol, and did not sniffgasoline while he was with Mialisa or Natsiavik, nor did they.

[50] At approximately 11 p.m., Neevee Akesuk was smoking outsideHouse 1111. Her attention was drawn to the sound of someonecrying. She saw the accused walking alone. He stopped crying whenhe saw her, but kept walking. Ms. Akesuk heard him start crying againafter he passed by her house.


10/46

10

E. Agreed Facts: Monday, September 20, 2010

[51] At approximately 2 a.m. Monday morning, Qabaruak Samayualie sawthe accused who appeared to be normal and sober. She did not smellanything on him at that time.

[52] The accused’s father, Kooyoo Peter, briefly woke up when theaccused entered their house somewhere between 2 a.m. and 3 a.m.He did not notice anything unusual or different about the accused. Hesaid “hi my baby” to the accused and Mr. Kingwatsiak answered “hiDad”. Mr. Peter then went back to sleep in the TV room while theaccused went to his own bedroom.

[53] Sometime after 2 a.m, Olipika Oshutsiaq was at a window in herhome listening to music when she saw the accused walking alone

carrying two long guns; one in his hands and one, a rifle, strapped onhis back. He was wearing black clothing including a black cap. Hewas walking away from his father’s house. He passed Ms.Oshutsiaq’s house and went behind a neighbour’s house. When here-emerged into Ms. Oshutsiaq’s line of sight, he was no longercarrying a gun in his hands. It is unclear whether he still had a gunstrapped to his back. He then entered his mother’s house which wasnearby. Ms. Oshutsiaq saw him leave and walk up the hillapproximately ten minutes later. She thought something was wrongand decided to go out with a flashlight to look for the accused, but shedid not see him.

[54] Qabaruak Samayualie was outdoors at approximately 4 or 5 a.m. Hesaw the accused walking behind the graveyard. He had a .22 calibrerifle in one hand and a 12 gauge shotgun in the other.

[55] At 5 a.m. or very shortly thereafter, the accused knocked on hismother’s door. This is not the same house in which his father, KooyooPeter, lived. Qabaruak got up, opened the door and let the accusedin. She did not notice anything unusual about him. They did notspeak. She went back to bed. Five minutes after lying down she

noticed that the house was unusually quiet. When she got up to checkthe accused was gone. She had no concerns for him at that time.


11/46

11

[56] At approximately 5:30 or 6:00 a.m., Kooyoo Peter woke up and wentout to smoke in his back porch. He noticed the.22 calibre semi-automatic rifle that he had stored there the day before was missing.The other firearms brought to his house the day before were still inthe porch.

[57] Again I pause to note that the accused says the.22 calibre semi-automatic rifle was not in his father’s porch. The evidence from theaccused is he retrieved the .22 calibre semi-automatic rifle from hisgrandfather’s boat.

[58] Between 5:30 and 6:00 a.m., Manu Kingwatsiak woke up and went tosmoke a cigarette. He found his nephew, the accused, standing in thekitchen beside the washing machine holding a knife. It had a blackhandle, a silver blade, and was about one foot long.

[59] Manu asked the accused what he was doing inside the house, but theaccused did not answer. The accused then said he was going to Ashevak Adla’s house to drink.

[60] Manu then went into the furnace room to have his smoke. He bentdown to pick up an ashtray when the accused entered the room andswung a knife at him slashing his face above his right eye. The attackwas unprovoked and while the accused and Manu were not close,there was no previous anger or animosity between them. Manu wentblack for a moment and then asked the accused why he had done

what he had. The accused did not answer. Manu told the accused togive him the knife. The accused did not reply, but instead attemptedto stab Manu a couple more times. Manu blocked each attack andtold the accused to stop. He put his arms around the accused,hugged him, and told him that he loved him. Manu kept asking himwhy he had done what he had and the accused replied “someone toldme to do it”. Manu asked him again and the accused replied “I don’tknow”. Very shortly after, the accused started to leave carrying theknife. Manu asked him for the knife, but he would not give it to him.The accused put on his shoes while his uncle said words to the effect

of “look Peter, I’m bleeding.” The accused responded “I don’t care”and left. He walked in the direction of Mappaluk and Ashevak Adla’shouse.

[61] The accused took the knife used in the attack from Manu’s kitchendish rack. It was the only knife Manu owned like that. The knife wasnever found by the police.


12/46

12

[62] When asked about the accused’s behaviour, Manu said “he wasn’tdrunk or on drugs but he wasn’t normal.” Manu did not smell anygasoline or alcohol on the accused and he later told police that theaccused was not drunk. When Sergeant [Sgt.] Richardson asked ifthere was anything different about the accused that night, he said “not

that much. There wasn’t really much different that I seen in him oranything. He was just like Peter.”

[63] The gash to Manu’s face required eight stitches and he retains a scarto this day.

[64] Manu called the Royal Canadian Mounted Police [RCMP] atapproximately 6 a.m. on September 20th. Constables [Cst.] RobertDriscoll and Ryan Tennant attended his house and after hearing hisaccount of events, they proceeded to Ashevak and Mappaluk Adla’s

residence.

[65] The two officers arrived there at 6:25 a.m. Upon arrival, they foundMappaluk lying face down on the floor near the entry way. There wasa lot of blood, but no evidence of any struggle. He was lying in asupine position and police observed blood pouring out of his mouth.He appeared to be unconscious and unresponsive. He had no pulse.Efforts to revive him were unsuccessful and he was pronounced deadat 6:55 a.m.

[66] Photos were taken by police at the Health Centre after the nurses had

washed his face.

[67] Cst. Tennant and Sgt. McLaren observed a small calibre rifle barrelimprint on Mappaluk Adla’s forehead. It was described as a faintlarger circle around a hole in Mappaluk’s forehead.

[68] Peter Kingwatsiak admits that he shot Mapp in the forehead at the Adla home without provocation. He admits that he shot him with a .22magnum calibre rifle and that Mapp died as a direct result of thatgunshot wound to his head.

[69] At approximately 6:45 a.m., Tytoosie Tunnillie heard someone closinghis back door so he got up to investigate. When he entered the livingroom he saw the accused standing over his brother EzeevadlukToonoo, who was sleeping on the couch.


13/46

13

[70] Tytoosie said “hi Peter” and the accused, who was startled, repliedright away, “hi Titoo. I have just killed Mappaluk. Me.”, with a smirkon his face. Tytoosie did not believe him because of the smirk.Tytoosie walked into the kitchen, then came back and sat downbeside the accused on the couch. The accused said he shot

Mappaluk in the forehead and pointed to the middle of his ownforehead between the eyebrows while saying, “here, here I shot him”.He then showed Tytoosie how he had held the rifle using animaginary rifle held against his shoulder with his index finger crookedwhere the trigger would be and aimed it downwards.

[71] The accused then said he was going to commit suicide. Tytoosie said“no” right away and Mr. Kingwatsiak started to cry a little bit.

[72] The accused stayed at Tytoosie’s home for slightly more than two

hours. They went for a smoke, watched television, and talked. Duringthat time, the accused appeared to be his normal self. Tytoosie didnot think he was drunk. At no point did he smell any alcohol on theaccused. At one point, all of a sudden, the accused said again toTytoosie “lots of people don’t like him so I killed him. I’m telling thetruth.”

[73] While the accused was there, Tytoosie’s brother, Itidloi Tunnillie,woke up. The accused said “hi Itidloi, I just killed Mappaluk.” Itidloiexpressed disbelief and the accused said, “for real, I did.” He shookItidloi’s hand and said he was telling the truth. He told Itidloi this

several times. Itidloi heard the accused say he shot Mappaluk whilehe was sleeping. The accused had a kind of a smile when he spokeand he sometimes cried.

[74] The accused also told Itidloi that he realized he had stabbed Manuafter he already stabbed him. He told them that he was walkingaround the mountain area since 1 a.m. and that he went over toManu’s while he was blacked out from sniffing. The accused said hestabbed Manu above the right eye. He also said “when I was doingthis to Manu, I woke up all of a sudden.” The accused told Itidloi that

he was a “suspect” for the police. He kept saying that he wanted tosee his great-grandmother and grandmother first and then he wouldgive himself up to the police. Tytoosie noticed that the accused wasnot in a panic.


14/46

14

[75] At around 9 a.m., Tytoosie and the accused were outside having acigarette when Tytoosie’s father, Iola Tunnillie arrived. The accusedtold Tytoosie and Iola that he wanted to commit suicide. Tytoosie triedto comfort him by saying that this would all pass and that people whokill others go to jail for a long time. Iola also advised the accused not

to kill himself. The accused started crying harder. The accused said itwasn’t on purpose, that he didn’t want to do it, and that he was sorry.During this conversation with the accused and Iola, Tytoosie noticedthat the accused smelled of gas.

[76] The accused told Tytoosie not to call the police because he was goingto turn himself in. He tried calling his mother and his grandmother,Novalinga Kingwatsiak, but was not successful. Iola redialed thenumber and got Novalinga on the line. Iola heard the accused tellNovalinga that he would be going to jail and that he wouldn’t see them

for a long time. The accused said he was sorry.

[77] He also tried to call his paternal grandmother, Nitanie Peter, but hecouldn’t get through. Shortly afterwards, his aunt Natsivak Nuna and asocial worker arrived to pick him up and take him to his grandmother’shouse before surrendering himself to the police.

[78] Upon leaving the house the accused said to Natsivak “just wait. Letme get something”. He went into the Tunnillie’s shed and emergedwith a rifle, an ammunition magazine, and a pair of pants. TheTunnillie family was surprised to see the rifle as they did not keep

guns in their shed or their house.

[79] Shortly after 9:30 a.m., the social worker drove the accused, Natsivak,and the rifle to Novalinga Kingwatsiak’s residence where variousfamily members had gathered.

[80] At approximately 9:40 a.m. the police attended. They seized the riflefrom the social worker’s truck. It was identified as the firearm missingfrom Kooyoo Peter’s porch and the .22 calibre rifle that was used inthe fatal shooting.

[81] The police entered Novalinga’s residence with permission and weretold by a young female adult that the accused was not present. Policereplied that he must be in the house because the social worker hadseen him enter. At that point, Peter Kingwatsiak stood up withoutanything more being said and identified himself to the police.


15/46

15

[82] Novalinga Kingwatsiak did not notice the accused showing any signsof intoxication while he was at her house and did not smell anyintoxicants, although she told police she did not even think to smellhim.

[83] He was arrested at 10:06 a.m. by Sgt. McLaren. He was told why hewas arrested and was given his Canadian Charter of Rights andFreedoms, Part I of the Constitution Act, 1982, being Schedule B tothe Canada Act 1982 (UK), 1982, c 11 [Charter] rights. It appeared tothe police that he clearly understood what was going on. The accusedappeared to be very nervous and was shaking. He was returned tothe police detachment and was processed.

[84] When the accused was searched incident to his arrest, police noticedthat he had the words “Geena Rose one and only” written in ink on

the underside of his right arm between his elbow and his wrist.

[85] Throughout their dealings with the accused that morning, the threepolice officers were in immediate and close contact with him. At alltimes he appeared to be oriented to his circumstances. The policehad no difficulty understanding anything said to them by the accused.The accused appeared to be sober and did not appear to have anydifficulty understanding anything said to him. He respondedappropriately to all police instructions. Peter Kingwatsiak appeared tothem to be sober. At no time did any of the officers smell anything onthe accused, be it alcohol, marijuana, or gasoline.

[86] At approximately 11 a.m., Chris Hayward was on his way to hiscousin Mapp’s house to check up on him. On his way there threeyoung teenagers flagged him down and directed him to a spot just upthe hill behind Mapp’s house where he observed an old, rusty, loadedshotgun propped up against a rock. About two minutes later, this wasturned over to the police.

[87] Later in the afternoon, Eteriak Peter, the accused’s paternal auntentered the accused’s home to retrieve some clothing for him. When

she entered his bedroom she observed three photographs of theaccused’s dead sister, Oolajuk on the bed. The accused and his sisterhad been close when she committed suicide several years before.Ms. Peter also observed a few .22 calibre bullets on the accused’sbed.


16/46

16

[88] During the evening, Constable Rob Daley interrogated the accused atthe RCMP detachment in Iqaluit. In a voluntary statement, theadmissibility of which is conceded, Constable Daley asked “what didyou do? The accused answered, “murder”. Constable Daley thenasked him “who did you murder?” The accused replied “Mappaluk”.

F. Agreed Facts: After September 20, 2010

[89] Several days after the shooting, Kooyoo Peter returned home. Whenhe went into the accused’s bedroom, he found several photographs ofPeter’s deceased sister as well as a note on the first page of his son’sbible. The note was in the handwriting of the accused and it read, inpart: “there’s no tomorrow….it’s too late now… Geena doesn’t want tosee me…It’s too late to fix…please don’t do anything to Geena Roseno matter what happens to me…I love you all …to Tommy, there’s a

lot of things going on.”

[90] On September 24, 2010, while the accused was in custody at theKatak Unit of the Baffin Correctional Centre, his cell mate, Jina

Akikuluk, heard him talking on the phone. He was talking about hisgirlfriend and how much he loved her. The accused said that he killedMappaluk because he loved his girlfriend, Geena.

[91] Around the same time, the accused spoke to Daniel Iqaluk, anotherinmate. Out of nowhere he told Mr. Iqaluk that he had shot a guy inthe head. When Mr. Iqaluk replied “for real? Is it true?” the accused

replied in the affirmative and said he’d done it in front of a girl he liked.He said he got “really jealous” because the guy had been going outwith his girlfriend. The accused told Mr. Iqaluk he was “drunk” at thetime of the shooting. The accused also said he shot the guy frombehind the head.

[92] Approximately one week after his arrest, the accused called TommyPadluq and asked him to retrieve the .303 rifle and bullets from theTunillie’s shed. The accused, speaking in Inuktitut, told Tommy to goget the rifle and that he would tell the truth in court so there was no

need for Tommy to say anything about it.

[93] A few days later, Tommy Padluq went to the shed and found a.303rifle hidden behind some wood. One round was chambered in therifle. Tommy also found .22 and .303 calibre bullets in a Coffee Mate container along with 12 and 20 gauge shotgun shells.


17/46

17

[94] Approximately one month after the shooting, the accused calledTytoosie from jail. He asked Tytoosie if anyone had found the 12gauge shotgun on the mountain yet.

[95] Soon after this phone call, Tytoosie found some bullets in a Tim

Horton’s coffee can in the shed by his house. He also saw what hethought were two shotgun shells, a lot of small bullets, and two .308or .30-30 bullets.

G. Agreed Facts: Pathologist’s Report

[96] Defence took no issue with the report submitted by Dr. Milroy whoexamined the deceased post-mortem. His observations andconclusions are admitted and the report which is now part of theevidence in this trial was made Exhibit Six.

[97] A very brief summary is as follows.

[98] The gun that killed Mr. Adla was fired a number of centimetres fromthe body. He estimated between 30 and 60 centimetres, at closerange.

[99] Dr. Milroy concluded that due to the infliction of the gunshot wound,incapacitation would have been immediate with death followingrapidly.

III. EXPERT EVIDENCE

[100] Four expert witnesses were called to assist the Court with the issueof intent. They were Doctors Klassen and Chaimowitz, who are bothForensic Psychiatrists, Dr. Rosenbloom, who is a Pharmacologist,and Dr. Mamak, who is a psychologist.

[101] Dr. Mamak did not testify at trial, but her Psychological AssessmentReport is admitted on consent and contains what she would havesaid if called. She is a psychologist and a lot of her report isimbedded in the report and testimony of her colleague, Dr.Chaimowitz.

[102] As could be expected in such a serious case, a lot of information wasprovided by the expert witnesses. Each doctor prepared a report anda document outlining their experience in the field.


18/46

18

[103] None of the experts called had lengthy or specific experience withrespect to the effect on the adolescent brain from sniffing gasoline.

[104] All of them, however, agreed that at least initially the effects ofinhaling are similar to the effects of alcohol. Dr. Klassen described it

as follows: “…a bit of disinhibition, euphoria, giddiness, initially it’s abit like alcohol, but then like a lot of things with drugs it becomes anissue of dosing.” {Transcript, p 42}.

[105] All of the doctors agree that it is very hard to get a clear sense ofdose when talking to inhalant users. First, because many of them areso young, and second, because no one is keeping track. No one iscounting the number of times the person inhales the gasoline. Noone is able to adequately measure how hard they are inhaling.Further, the overall effect is often impacted by the person’s method

of inhaling. Some do it directly from the source (which was what theaccused did in this case) and some use a rag soaked in gasolinewhich is carried around for purposes of further sniffing and a moreconstant feeling of intoxication.

[106] All of the experts testified and wrote their reports based on theinformation provided solely by the accused. There was indeed noone else who could provide this information. The accused testifiedthat he was alone when he sniffed gasoline and there is no evidencebefore the Court that anyone witnessed Peter Kingwatsiak usinginhalants at any time in the days leading up to the death of Mappaluk

Adla.

[107] All of the doctors agree that at the time of the shooting, the accusedwas in a considerable amount of distress. He felt that his ex-girlfriendhad been intimate with Mapp and he was very jealous. He wantedhis girl back and she had rejected him a number of times just prior tothe offence.

[108] The evidence given by the experts also takes into account the factthat Peter Kingwatsiak was very young. He turned 18 just ten days

prior to the offence date. The doctors agree that his brain was likelythat of an adolescent.


19/46

19

A. Dr. Philip Klassen

[109] Dr. Klassen testified for the Crown. He was on the witness stand forone and a half days. A summary of his evidence is as follows.

[110] The accused reported to Dr. Klassen that he did not have asignificant history of alcohol use, but he did report a history of dailycannabis use. He went on to talk about some inhalant use. He sayshe sniffed a bit when he was much younger, age 12 or less. He did itonce when he was 16 and then he sniffed gasoline in the earlymorning hours of September 20, 2010. The accused estimated abouteight episodes of inhalant use in total during his young life.

[111] In explaining the phenomenon of sniffing, Dr. Klassen invited theCourt to think of the body as a reservoir for the active ingredient of

the inhalant. In the beginning there is an initial hit to the brain andthen the inhalant goes into a reservoir from which it seeps out at arelatively low rate. The more hits a person takes, the fuller thereservoir becomes which relates to more aftereffects.

[112] Increased and frequent use of inhalants makes for a fuller reservoir,but if the person doesn’t continuously keep it up with constantinhalation, the sniffing has more of an “on/off” effect. His evidence isas follows: “If you go one hit after another you will fill your reservoirup and the peaks and troughs arguably become a little bit less andyou have more of a lasting intoxication.” {[Transcript, p 43}.

[113] When asked about the clinical symptoms from inhalant use, Dr.Klassen testified as follows:

The symptoms progress from the initial ones of euphoria, giddiness,disinhibition, those kinds of things, to more profound neurological

effects which include hallucinations, pseudo hallucinations, cognitive

impairment, memory problems, problems sequencing and executive behaviours, motor problems, people stumble around, slur their speech,

to ultimately you can get to the point of seizures, coma and death.

{Transcript, p 43}

[114] High doses of inhalants mean high disorganization and stumbling.What he actually said while on the witness stand is: “In higher dosesthese people are stumbling around, not making sense and in myexperience their offending tends to be disorganized because they’retoo cognitively impaired.” {Transcript, p 44}.


20/46

20

[115] The accused mentioned to Dr. Klassen three periods of sniffing onSeptember 20, 2010. There was an initial period in the boat down bythe beach, a middle period just prior to the attack on his uncle, and athird period between leaving Manu Kingwatsiak’s house and arrivingat the Adla house.

[116] Given what we know about the attack by the accused on his uncle,Manu Kingwatsiak, Dr. Klassen concludes that inhalants may haveplayed a role in that incident.

[117] The doctor said that the accused was probably experiencing amental state disturbance that may have included intoxication withrespect to the assault on his uncle but, if so, it was likely voluntaryintoxication.

[118] The fact that the accused reports that he “woke up at Manu’s house”is indicative of the acute effect of the dose wearing off.

[119] Dr. Klassen did not feel that the third period of sniffing was significantin terms of the accused’s mental state at the time of the killing.

[120] He told the Defence that, although he was not discounting that therewere inhalants on board when the accused went into Mr. Adla’shome, the accused’s disclosure that he “woke up at Manu’s”, hisbehaviour at Mr. Adla’s house, and his self-report to Mr. Tunnillieless than an hour after the shooting, is not consistent with a very

large dose of inhalant use after the attack on Manu Kingwatsiak.

[121] Dr. Klassen felt that the accused’s detailed description of whathappened at the Adla home did not bring intoxication or mental stateto bear in his opinion. Further, taking into account things like bulletangle and placement, there was no disorganization at the crimescene which would be consistent with a high degree of intoxication.

[122] The kind of intoxication where you lose touch with reality involvesslurring and people around you would notice. No one noticed thistype of behaviour on the part of the accused. In fact, even withrespect to the attack on his uncle, the accused was speaking to himin full sentences.

[123] Dr. Klassen concludes that the accused was experiencing adeclining effect of the inhalants at the time he shot Mappaluk.


21/46

21

[124] Dr. Klassen says that the most compelling evidence of this is theaccused’s disclosure to his friend, Mr. Tunnillie, shortly after killinghis step-brother.

[125] His evidence on this point is as follows:

When he spoke to Mr. Tunnillie he didn’t talk about not remembering,he didn’t talk about memory fragments, he didn’t talk about haziness

and he didn’t talk about intoxication. He said I shot him, he was

sleeping. I shot him in the forehead and he was a bad guy.

{Transcript, p 106}

[126] The accused did, however, acknowledge to his friend that when hestabbed his uncle, he was under the influence of inhalants.

[127] There is some evidence that the accused, when speaking with Dr.

Klassen, was shaping his responses and the doctor made note ofsome red flags which could result in a finding that Peter Kingwatsiakwas malingering (which is another word for pretending in order toarouse sympathy or minimize what had happened). In a case likethis where the accused has so much at stake this is not unusual.

[128] An example of this was the inconsistency in his description of whatMr. Adla was doing at the time Peter shot and killed him. It variedfrom sleeping to getting up to being wide awake in three differentaccounts. Those different accounts cannot all be correct.

[129] The doctor’s overall conclusion was that there is no evidence ofprofound or significant intoxication which would cause him to findthat Peter Kingwatsiak did not have the capacity to form the requisiteintent for murder at the time that he shot and killed his step-brother,Mappaluk Adla.

B. Doctor David Rosenbloom

[130] Dr. Rosenbloom testified for the Defence. His evidence was fairlybrief.

[131] He was qualified as an expert to give evidence on pharmacology andthe effects of drugs on a person’s system. He admitted that theculture of gasoline sniffing was not his area of expertise and that hehad very limited field experience.


22/46

22

[132] Dr. Rosenbloom had two very short conversations with the accusedover the telephone. The first conversation was very brief as theaccused did not feel he was able to participate and the secondconversation lasted approximately ten minutes.

[133] The accused told Dr. Rosenbloom that he started sniffing gasoline ataround age 18 and that he would sniff it once a day by putting hisnose close to the canister of gas {Transcript, p 351}.

[134] The accused told the doctor that in the hours leading up to the event,he had sniffed gas on three occasions. The first time was when hepointed the gun at the deceased and was interrupted by GeenaRose. The second and third times occurred during the early morninghours of September 20, 2010. He said he was hitting the gasolinehard and that he blacked out on one occasion. No further details

were provided.

[135] Dr. Rosenbloom told the Court that the major active ingredient ingasoline is a substance called Toluene which causes effects whichare very similar to the effects caused by alcohol use.

[136] The doctor testified that the use of marijuana is unlikely to impact theeffects of inhalant use.

[137] The doctor also testified that a person using inhalants wouldexperience the effect within a few minutes and that it could last five

to six hours.

[138] He agreed that inhalant use could have an effect on memory overtime.

[139] Dr. Rosenbloom says that the accused was confused about theattack on his uncle, but that he did remember shooting his step-brother. He told the doctor that he pulled the trigger when thedeceased stood up.

[140] The doctor admitted that his report was compiled without anyanalysis of credibility or malingering on the part of the accused. Herelied totally on what he was told.

[141] In cross-examination, he agreed with the Crown, indicating that, likealcohol, using inhalants reduces inhibitions.


23/46

23

C. Dr. Gary Chaimowitz

[142] Dr. Chamowitz also testified for the Defence. He spent aconsiderable amount of time with the accused in preparation for hisreport and his testimony.

[143] Like Dr. Klassen, he is a forensic psychiatrist.

[144] The accused told Dr. Chamowitz that he started sniffing gas at theage of 12. He said he used inhalants no more than four times peryear.

[145] Dr. Chamowitz admitted that Dr. Mamak found that the accused hadelevated scores on a test that she administered which was meant topick up levels of deception. It was designed to identify when theaccused was either malingering or distorting the facts. Sheexplained, as did Dr. Chamowitz, that this was to some extentreasonable given that the accused appeared to be trying to presenthimself in a better light.

[146] The doctor admitted that in his discussions with the accused therewere some things that were “contradictory at times, even in the samedescription of events, such as I wanted to shoot him but I didn’t reallywant to shoot him.” {Transcript, p 592}.

[147] With respect to events just prior to the shooting, the accused told Dr.

Chamowitz that he had been sniffing gas four or five times to thepoint of losing consciousness. He also told the doctor that he wasquite distressed at the time.

[148] In Dr. Chamowitz’s opinion, the unprovoked attack on ManuKingwatsiak increases the likelihood of the accused’s intoxication.

[149] At first, the accused appeared to remember clearly shootingMappaluk. Further, at some level, he told the doctor that thedeceased deserved to be shot, but he also said that he didn’t meanto shoot Mapp.

[150] On another occasion, the accused told Dr. Chamowitz that he hadvery little memory of going into Mappaluk’s home and shooting him.

[151] The accused did, however, give Dr. Chamowitz a fair bit of detail andprovided him with a fairly consistent sequence of events fromSeptember 18-20, 2010.


24/46

24

[152] The accused also reported to the doctor that he didn’t mean it whenhe told people that he was going to kill Mappaluk.

[153] In cross-examination, the doctor could not explain how no oneappears to have noticed signs of intoxication after the accused left

Mappaluk Adla’s home that morning.

[154] Dr. Chamowitz found no evidence in this particular case of a plannedmurder-suicide, although at one point the accused did tell the doctorthat he had thought about shooting himself after this event. He saidthat in fact he had held the gun to his chin, but had not been able tofire it.

[155] The doctor testified that the effects of inhalants can wear off quitequickly or last a few hours.

[156] He concluded by telling the Court that the accused, on a balance ofprobabilities, more likely than not lacked the capacity to form thenecessary intent for murder at the time he shot and killed Mappaluk

Adla on September 20, 2010.

IV. CIVILIAN WITNESSES

[157] Three civilian witnesses were called at trial: Manu Kingwatsiak,Etidloi Adla, and Tytoosie Tunnillie.

A. Manu Kingwats iak

[158] Manu Kingwatsiak testified about what happened at his home whenthe accused attacked him with a knife.

[159] I find no need to repeat those facts that have already been agreedto, except to say that they were confirmed by the witness.

[160] The following additional evidence was provided.

[161] Mr. Kingwatsiak was asked if he could smell gas on the accused’sbreath and his answer was “absolutely not”. The witness also told theCourt that he did not think that he could smell anything coming fromPeter’s clothes.


25/46

25

[162] He testified that Mappaluk Adla’s house was close to his own. It wasmaybe one block away. After the attack, Manu went to the windowwhere he saw Peter Kingwatsiak walking towards the Adlaresidence.

[163] He observed that the accused was walking straight like everybodyelse does.

[164] The witness told us that the door to his home was locked every night,but on this occasion, for an unknown reason, it was unlocked.

[165] In cross-examination, Manu admitted that Peter was a frequentvisitor during the day, but never at night. He was not invited and hispresence was completely unexpected.

[166] He admitted in cross-examination that if he had not been attacked bythe accused, he would have been okay with the accused being in hishouse that morning.

[167] Manu Kingwatsiak also admitted in cross-examination that when hefirst saw the accused he was just standing there, not saying anythingand not even noticing that he was present. It was a surprise when hewas attacked. He had never been hit by the accused before and thiswhole event was completely unexpected.

[168] Finally, Mr. Kingwatsiak admitted that when he gave his statement to

the police shortly after the incident he was asked the followingquestion and gave the following answer: Question: “what happenedlast night to set him off, to cause him to stab you in the face”?

Answer: “evil spirit I guess”.

B. Etidloi Adla

[169] Sometime in mid-August of 2010, Etidloi Adla, Mappaluk’s olderbrother, was with several people on the beach preparing to gofishing. The group included Kumaarjuk Pii, Kooyoo Peter, the

accused, and Manu Peter. During preparation, Mappaluk came downto the beach. Mr. Adla testified that when he got off the boat to goand talk to his brother, he heard the accused say to Manu Peter thathe was going to shoot Mappaluk one day. It was said in a joking toneand he did not appear to be angry at all when he said it.

[170] Mapp did not come with them on their fishing trip.


26/46

26

[171] Later that same day Etidloi, the accused, and Manu were at acampsite shooting at rocks sticking out of the water. Mr. Adla heardthe accused sort of whisper to Manu Peter, saying that he was goingto shoot at a rock and pretend it was Mappaluk’s head. PeterKingwatsiak then took about five shots at the rock.

[172] Etidloi testified that he was sort of shocked, but he didn’t believe theaccused would do that.

[173] He does not recall anyone drinking or taking drugs that day.

[174] Mr. Adla testified that prior to Mappaluk’s death, he knew that therewas some jealousy going on between Mapp and the accused overGeena Rose. At the time, he was working with youth in thecommunity and rumors of the accused’s animus towards Mapp werespreading like wildfire throughout the community.

[175] Mr. Adla and the accused used to hunt together. Etidloi told theCourt that the accused was just learning and when asked if he was agood shot, responded that he was typical and that more often thannot he would miss his target, but by a very slight distance.

[176] In cross-examination, it became clear that Mr. Adla gave twostatements to the police. During the first statement following thedeath of his brother, he did not say anything about the time when theaccused was shooting at rocks and pretending they were Mapp’s

head. He waited over a year to tell the police about this incident withthe rocks.

[177] The witness explained that, although he remembered the rockincident shortly after giving his first statement, he did not contact thepolice. He testified that he was sure the police would be calling himagain so he saved the information for the second interview with theauthorities. He went on to say that he did not want to make any oldwounds fresh again by contacting the police himself.

[178] Etidloi Adla did not hide the fact that he wants the accused to beconvicted of murdering his brother, but said he would not lie to makethat happen.


27/46

27

C. Tytoosie Tunnillie

[179] Mr. Tunnillie supplied information which is included in the admissionsthat form part of the evidence in this trial. I will not repeat thingswhich were, for the most part, confirmed by his testimony at trial.

This witness did, however, provide some additional facts, which areas follows.

[180] When Mr. Tunnillie saw the accused that morning he was crying. Hehad a “smirky” look and an unusually red face. He could tell that theaccused had been sniffing gasoline. Tytoosie testified that over twohours after he arrived at the Tunnillie house and, while he wastalking to Tytoosie and his father, this witness smelled gasoline onthe accused.

[181] Prior to this, the accused had told Tytoosie that he had beenblacking out from sniffing gasoline. He said that he was “sniffed out”when he stabbed Manu in the head and that he suddenly woke upwhile he was trying to stab him.

[182] The accused kept saying that he wanted to commit suicide and hewas very emotional.

[183] When the witness was demonstrating how the accused told him hewas holding the rifle when he killed Mappaluk, he did so as if theaccused was right handed. At that time, the accused was not crying.

[184] Mr. Tytoosie said that the accused told him he had killed Mapp, butthat it was not on purpose. He remembers the accused saying thathe shot Mappulak, but it was by accident.

[185] Tytoosie admitted in cross-examination that while the accused wasat his house that morning he did not talk like he was drunk. Theywent out for a smoke a few times that morning. Each time they didthis the accused had no difficulty putting his shoes on or taking themoff.

[186] When giving his answers, Mr. Tytoosie backtracked a lot and attimes he was very evasive.

[187] When faced with an inconsistency between the statement he gave tothe police shortly after the incident and his testimony, he told theCourt that he was drinking a lot back then and his memory wasbetter now.


28/46

28

[188] In cross-examination, it was put to Tytoosie that when he gave hisstatement to the police he heard Peter Kingwatsiak say that he had

just shot the one he hated the most. Tytoosie then said that he hadlied to the police. He followed this by saying that he couldn’tremember if he said that to the police or not and finally Tytoosie

admitted that at some point during the morning of the fatal shot, theaccused did say something about hating Mappaluk.

[189] Many of Mr. Tytoosie’s answers to important questions wereinconsistent with each other. For instance, at one point he said thathe could not understand what the accused was saying and later hesaid that the accused was talking normally.

[190] He first said the smell of gasoline coming from the accused wasstrong and later said that it was not that strong.

[191] It appeared to the Court that he was trying his best to minimize whathappened that morning and to support his friend, Peter Kingwatsiak,as much as possible. His overall credibility suffered as aconsequence.

V. EVIDENCE FROM THE ACCUSED

[192] The accused testified at length during his trial.

[193] As is Mr. Kingwatsiak’s right, he chose to testify in Inuktitut using theservices of qualified, experienced, and professional courtinterpreters.

[194] His in-chief examination took place Wednesday morning andafternoon while his cross-examination took most of Thursday and allof Friday to complete.

[195] Shortly after commencing his testimony, an issue arose with respectto the quality of interpretation. The accused advised the Court thathe was having some difficulty agreeing to the words the interpreters

were using when translating to the Court in English what he had justsaid in Inuktitut.

[196] Counsel and the accused submitted that the difficulty was likely dueto differences in dialect. It was resolved, on consent, that replacingone of the interpreters with another who was more experienced withthe Cape Dorset dialect was an adequate solution.


29/46

29

[197] The trial then proceeded, using consecutive translation throughout.

[198] The issue of appropriate translation was brought to the attention ofthe Court by the accused a number of times. In fact, the Courtdirected the accused to interrupt the proceedings any time he felt

there was an issue in this regard. He was not shy to do so.

[199] At one point, he felt that the Crown should ask the question inEnglish without interpretation and then he could answer in Inuktitutwith interpretation. This proved not to be particularly helpful as theaccused continued to ask for translation, noticeably when thequestion related to an important issue.

[200] I find that the accused testified in a way that leads this Court tobelieve that he was using his command of both Inuktitut and Englishto delay many of the responses he gave.

[201] On numerous occasions, particularly on important issues, this Courtfinds that he deliberately slowed down the proceedings so that hecould carefully consider what his answer to the question should be,rather than answering in a forthright and non-evasive manner.

[202] This is not reflected accurately in the transcripts of his evidence.The written word does nothing to depict demeanour or tone. It doesnot reflect long pauses between questions. It does not depictfrustration or anger. Extreme emotions are not recognizable from the

words on the paper.

[203] This is a case where the accused’s testimony at trial was important,particularly on the ultimate issue of whether Mr. Kingwatsiak had thecapacity to form the intent for murder.

[204] Accordingly, the way the accused answered the questions posed tohim is part of this Court’s overall assessment.

[205] I have no difficulty in finding that the accused was extremely evasiveand inconsistent throughout his lengthy cross-examination.

[206] At one point, he told the Court that he was not in love with GeenaRose and at another he admitted that in September of 2010, he wasin love with her.


30/46

30

[207] At times he insisted that he was not jealous of Geena Rose andMapp and at other times he admitted to the Court that he did not likethe fact that they were together.

[208] In-chief, the accused testified as to his background. I do not believe it

is necessary to repeat everything he told the Court. Suffice it to saythat his childhood was difficult. He lost two siblings: an older brotherto a hunting accident and his sister to suicide. He was sexuallyassaulted by an uncle and he was badly injured when he was 14 or15 due to his use of inhalants. On that occasion he was sniffing gasand his clothes caught on fire. He suffered burns to about 45% of hisbody; mostly his feet and legs which required treatment in the southfor three months.

[209] He tried to hang himself at least once, but possibly twice, prior to the

burn injuries.

[210] The accused described himself in September of 2010, as a hunterand a student. At the time of his arrest, he had completed Grade 10and was starting Grade 11.

[211] He can’t remember when he started sniffing gas, but he told theCourt it was sometime before he started smoking marijuana whichoccurred when he was approximately 12 years old.

[212] He told his lawyer during the trial that in August of 2010, he would

sniff gasoline whenever he went camping with his grandfathers.They went out probably every week so he estimated that he wassniffing every week.

[213] The accused said that on at least one occasion in August, he wassniffing with his relative, Manu Peter.

[214] The accused denied Etidloi Adla’s account of him firing a gun atrocks in August while pretending that he was firing at Mappaluk’shead.

[215] When talking about Geena Rose, even his evidence in chief wasinconsistent. He testified that Geena Rose was his girlfriend prior toSeptember of 2010. They were not going out on September 18,2010, but on that date he knew Geena and Mapp were friends.Mappaluk was 23 and Geena Rose was 15.


31/46

31

[216] He knew that Geena Rose and Mapp were together during theSaturday night dance in Cape Dorset. After the dance he saw themwalking together with other friends.

[217] When asked how that made him feel, he said that he was not jealous

or hurt, but he did not like the fact that they were together.

[218] He admitted that he pointed the gun at Mapp the morning before hisdeath in front of Geena Rose. He told the Court that the gun was notloaded and that he did not intend to shoot Mappaluk.

[219] He said the bullets to the gun were in his pocket. The accused laterconceded in cross-examination that the gun was in fact loaded.

[220] He told us that he wanted to be closer to Geena Rose and hethought she would ask him why he was pointing the gun atMappaluk. He tried again to convince her to go out with him, but sherefused.

[221] Later that same day, in the evening, he saw Geena Rose on her wayto church. He asked her to go for a walk with him and she refused.He asked her to give him back the bullets for his gun, but she wouldnot do so. He testified that he did not want the bullets back so that hecould kill Mapp, but that he wanted to return them to the place wherehe found them. His testimony on this point was far from convincing.

[222] When talking about his feelings for Geena Rose, he was extremelyresistant and evasive. His evidence was extremely inconsistent. Atone point, he said that he was just trying to have a relationship withher, but it wasn’t the most important thing in his life. He deniedseveral times that he was jealous or hurt because of the situation hefound himself in. He minimized his feelings for Geena Rosethroughout his testimony. When asked, he could not adequatelyexplain why he had the words “Geena Rose. My one and only”written in ink on his arm at the time of his arrest.

[223] On Sunday evening, the accused testified that Geena Rose waswearing makeup and she looked different. The way she lookedcaused him to believe that Geena Rose and Mappaluk had, had sex.He told his lawyer, when asked how that made him feel, that hedidn’t feel anything about it.


32/46

32

[224] Later on Sunday night, he was speaking to Geena Rose online. Heagain asked her to go out with him and to give him another chance.She again refused. He told the Court that he knew why she wouldn’tgo out with him and it was because he had pointed a gun at Mapp,although she never said that to him at any time.

[225] On Monday morning he got up early, around 3:00 or 3:30 a.m., andwent to the porch of his father’s house to smoke a cigarette. He thenwent to his bedroom and was lying in bed for about ten minutesbefore getting up and leaving.

[226] He said that he went to the beach, down to his grandfather’s boat.He was sniffing gas from inside the boat, directly from the fuel tankup to a point where he says he didn’t feel anything, he becamenumb. He could not say how many times he sniffed, but he said that

he sniffed as hard as he could. The next thing he remembers is thathe wasn’t in the boat any longer. When he became aware of this, hereturned to the boat and continued to sniff. When he was done heclosed the tank. He was feeling high.

[227] When asked by his lawyer why he was sniffing so much gasoline thatmorning he said because he was thinking about the anniversary ofhis sister’s death. He said he was sad because they were very closeand he sniffed every September. When the Crown explored hisanswer, it was obvious to the Court that he was being less thantruthful. He told the Crown a number of times that he can’t say if his

sniffing that morning had anything to do with Geena Rose.

[228] He took a .22 calibre gun from the boat when he left. When askedwhy he took the gun he said, “I took it but I wasn’t thinking about thereasons why I took it.” {Transcript, p 324}.

[229] During the early morning hours of September 20, 2010, the accusedadmitted that he was walking around the community with three guns:a .22 calibre rifle, a .303 calibre rifle, and a shotgun. At some pointhe left the shotgun somewhere on the mountain, but he did not know

where because it was dark.

[230] When asked why he had the three guns that night, he said he couldnot tell the Court why.


33/46

33

[231] After he left the boat he went to his aunt’s place. He arrived, but didnot enter. He waited around for a short period of time before leaving.He next found himself at his uncle’s house. The accused saw thatthere were bikes (described commonly as Hondas) outside ManuKingwatsiak’s house so he went to one, removed the cap from the

gas tank, and again started to sniff gasoline. After he sniffed out ofthis gas tank, he told his lawyer that he doesn’t remember anything.

[232] He then said that while he was sniffing gas from the Honda, hethought he saw his uncle watching him from the window in his home.He thought that Manu would mention it to his parents which issomething he did not want to happen.

[233] Again his testimony is contradictory. The accused said that after hesaw Manu in the window, he continued to sniff from the Honda’s tank

and the next thing he remembers is leaving his uncle’s place.

[234] He then said that he was blacked out after sniffing from his uncle’sHonda and the next thing he remembers is his uncle talking to himand trying to take the knife away from him.

[235] The accused told the Court that he “woke up” at his uncle’s houseand when he became aware of what he was doing, he apologizedand left.

[236] After he left, he started looking for the .22 calibre rifle, which he had

brought with him. He found it next to Mannu’s house where he hadleft it.

[237] He was intending to go home, but on the way he saw a ski-doo andso he went to the machine, opened up the gas tank, and sniffedsome more.

[238] The accused told the Court that he was sniffing differently from thesnow machine. This time he would breathe in the gas, hold it in hislungs until he couldn’t hold it anymore, and then he would breathe itout. The high was more intense.

[239] After this period of sniffing the accused blacked out. He told hislawyer that he doesn’t remember anything further until he was downsouth and he found out what he had done. In the same response, healso said that the next thing he remembered after sniffing thegasoline was leaving Mappaluk’s house.


34/46

34

[240] After leaving Mapp’s house he walked by the graveyard. He thenwent to Tytoosie Tunnillie’s house.

[241] In-chief, the accused said that he doesn’t know if he told Tytoosiethat he had shot someone or not, whereas later he admits that not

only did he tell him that he shot Mappaluk Adla, but he showed hisfriend how he did it.

[242] During cross-examination, the accused went from telling the Courtthat he did not remember what he did at Mappaluk’s house to givinga detailed description of exactly what occurred during the earlymorning hours of September 20, 2010.

[243] The accused admitted that he told one of the psychiatrists that therewere five bullets in the gun he used to shoot Mr. Adla and that heonly had to use one of them.

VI. POSITION OF THE PARTIES

A. Crown’s position

[244] The Crown’s position is that there is ample evidence before theCourt that Peter Kingwatsiak planned to kill his step-brother, he knewwhat he was doing when he pulled the trigger, his actions weredeliberate, and he accomplished what he set out to do that morning.

The accused therefore should be convicted of first degree murder.

B. Defence’s position

[245] The Defence’s position is that the accused lacked the specific intentneeded to find him guilty of murder due to both his level ofintoxication and also because he was suffering from extremeemotions at the time of the offence. The accused, therefore, shouldbe convicted of manslaughter.

[246] If this Court disagrees and finds that Peter Kingwatsiak did have the

specific intent necessary for murder, the murder lacked the essentialelements of planning and deliberation which would be necessary tofind the accused guilty of first degree murder. This would result in aconviction for second degree murder.


35/46

35

VII. ANALYSIS

A. Murder

(i). Did Peter Kingwatsiak have the capacity to form the intent required formurder when he shot and killed Mappaluk Adla on September 20, 2010?

[247] It is the Crown’s job to prove beyond a reasonable doubt thefollowing:

1. That Peter Kingwatsiak caused Mappaluk Adla’sdeath;

2. That Peter Kingwatsiak caused Mappaluk Adla’sdeath unlawfully; and

3. That Peter Kingwatsiak had the state of mindrequired for murder.

[248] Questions one and two are admitted for purposes of this case. Theaccused caused Mr. Adla’s death and he did so unlawfully. Thequestion in this trial is whether or not Peter Kingwatsiak had the stateof mind required for murder.

[249] As I said before, this offence requires proof of a particular state ofmind. For an unlawful killing to be murder, the Crown must provebeyond a reasonable doubt either that the accused meant to killMappaluk Adla in the early morning hours of September 20, 2010, or

that he meant to cause bodily harm that the accused knew was sodangerous and so serious that it would likely kill Mr. Adla and heproceeded despite his knowledge that Mappaluk Adla would likelydie as a result. The Crown does not have to prove both. One isenough.

[250] Common sense would tell you that when someone walks into aperson’s home in the early morning hours, points a loaded .22calibre rifle at that person’s forehead, and pulls the trigger at closerange, he does so with the intention to kill.

[251] The accused’s actions are only part of what must be considered.

[252] The Court is also required to consider whether or not the accusedknew what he was doing when he fired that fatal shot.


36/46

36

[253] The Court must consider all of the evidence. It must look to what hedid or did not do, how he did or did not do it, and what he said or didnot say.

[254] The Court must look at the accused’s words and conduct before, at

the time, and after the unlawful act that caused Mr. Adla’s death.

[255] The opinions of the experts who testified during this trial must alsobe carefully considered to determine Mr. Kingwatsiak’s state of mindat the time of the killing.

[256] Finally, in considering all the evidence, the Court is obligated to useits good common sense.

[257] For the purposes of my decision, I will refer to those facts which mostinform my overall conclusion.

[258] It is clear that Peter Kingwatsiak was not happy with Mappaluk Adlaat the time of his death. We know this because he told several of hisfriends that he was going to kill Mapp and why.

[259] I find as a fact that the accused was very jealous of the deceasedduring the months of August and September of 2010. He was both

jealous and later angry because the accused thought that Mappalukwas interested in, and taking advantage of, his one and only love,Geena Rose Lampron.

[260] We know that the morning before the accused pulled the trigger thatended Mapp’s life, he pointed a loaded .303 rifle at him and wasstopped from pulling the trigger by the very girl he was fixated on.

[261] We know that when he pointed the loaded rifle at Mappaluk and wasinterrupted by Geena Rose, the accused told her he was going to killMapp and that he had to do it.

[262] We know that within the 24 hours leading up to Mr. Adla’s death,Geena Rose refused to go out with Peter on at least four occasions.

[263] There is no doubt that the accused was distressed on September 20,2010. We know that he hardly slept Sunday night and his evidence isthat he decided somewhere around 3:00 or 3:30 a.m. on Mondaymorning to sniff gasoline. There is no evidence of sniffing prior to thattime.


37/46

37

[264] The accused says he sniffed gas because he was missing his sisterwho had committed suicide years before during the month ofSeptember. Although this may have been a contributing factor, theCourt finds that there is ample evidence to conclude that he wasmore upset because he was convinced during a conversation with

Geena Rose on Sunday evening that Mapp and Geena Rose hadbeen sexually intimate with each other.

[265] The accused’s last rejection from Geena Rose was somewherearound 11:00 p.m. Sunday evening.

[266] After sniffing gas at the boat, the accused was walking around CapeDorset with three weapons: the .22 calibre rifle which was used inthe offence before the Court, a .303 calibre rifle, and a shotgun.

[267] When asked why he was walking around with 3 guns, he had noexplanation. In fact, he said he couldn’t tell the court why.

[268] He next sniffed gasoline at his uncle’s house. Manu Kingwatsiak andthe accused testified as to what happened there.

[269] I find for purposes of my decision today that the accused’s level ofintoxication at the time he was at Manu Kingwatsiak’s residence wasgreater than at the time he was at Mappaluk Adla’s residence.

[270] I am convinced by the evidence provided by the witnesses and the

experts in this case together with the evidence from the accused andManu Kingwatsiak surrounding this event.

[271] The accused’s testimony is that he “woke up” while he was stabbinghis uncle.

[272] Although his level of intoxication may have played a part in his stateof mind at the time he attacked Manu Kingwatsiak, his actions andconduct following this event appear to be those of someone whoknew what he was doing when he went into the Adla home.

[273] Immediately after the attack on his uncle, the accused had thepresence of mind to look for and to find the .22 calibre rifle which hepicked up and took with him to the Adla residence.

[274] I find that the accused’s level of intoxication following the attack onManu Kingwatsiak had been significantly reduced by the time heshot and killed the deceased.


38/46

38

[275] I do this for a number of reasons.

[276] All of the experts in this case have based their conclusions on theaccused’s self-report with respect to his inhalant use.

[277] As I have already indicated, I find the accused to be a less thancredible witness.

[278] On the issue of intoxication at the time of the fatal shooting andbefore, he told the experts different things.

[279] The accused told Dr. Rosenbloom that he started sniffing gas at age18. He sniffed it once a day. In the hours leading up to the death ofMr. Adla, he had sniffed gas on three occasions. The first time wasprior to the incident when he pointed the gun at Mr. Adla and wasstopped by Geena Rose. This was the morning before the fatalshooting.

[280] He told Dr. Chaimowitz that he started sniffing gas when he was 12and he used inhalants no more than four times per year.

[281] He went on to say that just prior to Mr. Adla’s death he had beensniffing gas four or five times to the point of losing consciousness.

[282] The accused told Dr. Klassen that he sniffed a bit when he wasmuch younger, age 12 or less. He sniffed gas once when he was 16

and then he sniffed gasoline in the early morning hours ofSeptember 20, 2010. He estimated about eight episodes of inhalantuse in total during his life.

[283] The accused’s testimony in-chief when asked about his inhalant use,was that he sniffed every week during the month of August when hewent out camping.

[284] There is no evidence that the accused smelled of gasoline duringany of his interactions with people in Cape Dorset prior to the deathof Mappaluk.

[285] After the shooting, the accused interacted with a number of people.


39/46

39

[286] There is only one person who says he smelled gasoline on theaccused. Tytoosie Tunnillie testified that he smelled gas on theaccused after the accused told him he was blacked out from sniffingwhen he attacked his uncle. Mr. Tunnillie says he smelled gas whenthe accused, he, and Tytoosie’s father were talking together. This

was at least two hours after the accused entered the Tunnillie home.

[287] There is no evidence from anyone that the accused’s speech wasanything other than normal. He did not slur his words. He did not actlike he was drunk. The evidence of intoxication is not of a significantnature. It does not leave this Court with a reasonable doubt withrespect to the accused’s intentions at the time he delivered the fatalshot.

[288] Further, there is very little, if any, evidence of intoxication from those

who interacted with him at the Tunnillie residence immediatelyfollowing the death of Mr. Adla.

[289] The accused took his shoes off when he entered Tytoosie’s houseand he put them back on when he went to the porch to smoke. Hedid this a few times that morning. There is no evidence that he hadany difficulty at any time maintaining his balance. Even ManuKingwatsiak observed Peter immediately after the attack on him tobe walking like any normal person in the direction of the Adlaresidence.

[290] Although the accused was emotional and suicidal at the Tunnilliehome, he was described throughout as appearing to be sober. Hewas not in a panic at any time and there was no evidence of bizarrebehaviour.

[291] There was no evidence of disorganization at the crime scene. Theaccused walked into the Adla home and fired one shot at close rangeto the head of Mr. Adla causing his death. There was no sign of astruggle.

[292] For all of these reasons, this Court finds beyond a reasonable doubtthat Peter Kingwatsiak not only had the capacity to form the intentrequired for murder, but he also intended his actions when he shotand killed Mappaluk Adla on September 20, 2010.


40/46

40

B. Planning and deliberation

(i). Was the murder of Mappaluk Adla both planned and deliberate?

[293] Not every murder is first degree murder. In order to convict, the

Crown must prove beyond a reasonable doubt that the murder wasboth planned and deliberate.

[294] The words “planned” and “deliberate” mean different things.

[295] According to author David Watt,

“Planned” is a word that we often use when talking to other people…

[It] means a calculated scheme or design that has been carefullythought out”. The consequences of it have been thought over… and

sized up.

The plan does not have to be either complicated or sensible.

[…]

“Deliberate” is not a word that we often use when speaking to other people. It means “considered, not impulsive”, “car efully thought out,

not hasty or rash”, “slow in deciding”, “cautious”1.

[296] A deliberate act is one where the person has taken time to weigh theadvantages and disadvantages of the act he or she is about to

commit. That deliberation must take place before the act of murder.

2

[297] Once again, the Court must look at what the accused did or did notdo, how he did or did not do it, and what he said or did not say.

[298] The effect of any real or imagined provoking words or conduct fromothers that may have affected his state of mind is important, togetherwith the accused’s overall condition before, during, and after theoffence.

[299] I will refer to portions of the evidence that most impact on my overall

decision.

1 David Watt, Watt's Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015) at

691.2 Ibid.


41/46

41

[300] The findings of fact in terms of whether or not the accused had therequisite intent for murder contribute to, but are not decisive as towhether or not the murder was planned and deliberate.

[301] Intoxication can raise a reasonable doubt regarding the planning and

deliberation required for first degree murder, even if it leaves nodoubt regarding the specific intent for murder.

[302] The accused maintains that he did not mean to kill Mappaluk Adla. Ifind that this evidence is neither credible nor reliable. At one pointwhen the accused was testifying he said that he did not rememberwhat happened at the Adla home and yet shortly after the event, theaccused not only tells his friend Tytoosie what he did and why, buthe demonstrates for him exactly how he was holding the gun whenhe pulled the trigger.

[303] The accused’s testimony throughout the trial was varied andinconsistent both internally and externally. At one point, the accuseddoesn’t remember anything and at another, he rememberseverything.

[304] There is no evidence of confusion on the part of the accused fromany of the witnesses who interacted with him after the fatal shooting.

[305] I find that the accused was both jealous of and angry with thedeceased throughout August and September of 2010.

[306] Although the accused denies it, I found the evidence of Etidloi Adlato be both credible and reliable. This is the evidence that relates to atime in August of 2010, when the accused told his friend Manu Peterthat he was going to shoot at rocks and pretend they were Mappaluk

Adla’s head.

[307] Even without this evidence, there are ample facts before the Court tosupport my finding that during August and September of 2010, therewas considerable malice towards the deceased by the accused.

[308] The accused felt that Mapp and the love of his life, Geena Rose,were in a relationship. He felt they were more than just friends. Hewas completely infatuated with Geena Rose Lampron and he sawMappaluk Adla as his competition.


42/46

42

[309] The accused felt that the deceased had taken advantage of otheryoung women in Cape Dorset and he became convinced that Mappintended to take advantage of “his girl”, Geena Rose.

[310] We know this because the accused was not shy to tell many of his

friends about how he was feeling.

[311] We know that in the weeks up to Mapp’s death, the accused told anumber of people that he was going to kill Mappaluk Adla.

[312] This alone is not enough to find that the accused planned the murderof his step-brother and that he then deliberately carried out thatmurder.

[313] Often people threaten to kill someone they don’t like. Generally, theydon’t mean to follow through, but this is a case where not only didthe accused threaten to kill Mapp, but he then turned those threatsinto action the morning before he delivered the fatal shot. This wasan extraordinary step in the wrong direction. A giant step towardsfollowing through on what he told others he was going to do.

[314] The accused sees Mapp and Geena Rose together both at theSaturday night dance and later while walking around in thecommunity early Sunday morning. There is no doubt that he isextremely jealous at this point. He obtains a loaded .303 calibre rifleand points it directly at Mapp. While he is doing this, Geena Rose

sees what is happening and begs him not to shoot Mappaluk Adla.The accused asks her to leave so she won’t see him kill Mapp thatmorning, but she refuses. The accused says he is going to killMappaluk and that he has to do it. She tells him he doesn’t have tokill Mapp and eventually she convinces the accused to give her thebullets from the gun.

[315] The time between this event and the actual murder is at most 24hours. The accused points the loaded firearm at his step-brotherearly Sunday morning, September 19, and he delivers the fatal shot

early Monday morning, September 20, 2010.

[316] This Court finds that this incident greatly affected the accused. Hewas now not only jealous and angry, but he was also embarrassedthat his girlfriend and others had seen him point a loaded firea

2016 nucj 02 r. v. kingwatsiak

Documents