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R v King, 2018 NWTSC 66             S-1-CR-2016-000118

 

 

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

 

 

IN THE MATTER OF:

 

 

HER MAJESTY THE QUEEN

 

 

- v -

 

 

DENECHO NOEL CALVIN KING

_________________________________________________________ Transcript of the Reasons for Judgment delivered by The Honourable Justice A.M. Mahar sitting in Yellowknife, in the Northwest Territories, on the 6th day of July, 2018.

_________________________________________________________

 

 

APPEARANCES:

 

 

Mr. A. Godfrey:               Counsel for the Crown

Ms. J. Andrews:               Counsel for the Crown

Mr. J. Bran:                  Counsel for the Accused

 

 

(Charges under s.235(1), s.239(1)(b), s.268 of the

Criminal Code)


 

1            THE COURT:             Thank you.  Please have a

2                    seat.  This decision will be published either as

3                    an edited version of the transcript of what I say

4                    here today, or as a written decision.

5

6          Introduction:

7

8                             In the early morning of December 14th, 2014,

9                    police in Yellowknife were notified of two

10                   badly-injured men at the Sunridge Apartments.

11                   They arrived at Unit 323 to find John Wifladt and

12                   Colin Digness on the floor in the entry hall.

13                   Neither one was fully conscious or responsive.

14                   There was a significant amount of blood on both

15                   of the men and the surrounding area.  They were

16                   both clearly in distress.

17                             Unit 323 was ordinarily occupied at the time

18                   by Colin Digness and his teenage son, Daylan.

19                   Daylan was not home that night having stayed over

20                   at a friend's place.

21                             Emergency medical personnel arrived on the

22                   scene.  Colin Digness had suffered trauma to his

23                   head and was bleeding from his abdomen.  The

24                   extent of John Wifladt's injuries was not as

25                   obvious at first, but both clearly needed

26                   immediate treatment.  They were transported by

27                   ambulance to the Stanton Regional Hospital.


 

 

1                             Further treatment revealed that

2                    Colin Digness had suffered multiple lacerations

3                    to his face and eye, including a deep 9 to

4                    10-inch laceration to his forehead and a 2-inch

5                    laceration above his left eye as well as a stab

6                    wound to his abdomen which lacerated his small

7                    bowel.

8                             Results from the autopsy of John Wifladt

9                    showed numerous injuries which included two stab

10                   wounds to the upper left back of his torso being

11                   roughly 2 inches and 8 inches in depth.  The

12                   deeper wound penetrated his chest cavity,

13                   perforated his diaphragm and penetrated his

14                   spleen, which caused massive blood loss which led

15                   to his death.  He also suffered two stab wounds

16                   to the head which did not penetrate his skull.

17                             John Wifladt died from blood loss a few

18                   hours after arriving at the hospital.

19                   Colin Digness was sent by air ambulance to

20                   Edmonton where he remained for a number of weeks.

21                   The injuries to both his head and abdomen have

22                   potentially permanently affected his vision,

23                   cognitive function, and digestive system.

24                             John Wifladt never regained consciousness

25                   and was, thus, unable to provide any information

26                   about what had happened.  Due to his injuries and

27                   possibly his level of intoxication, Colin Digness


 

 

1                    has no memory of what occurred.

2                             After an extensive investigation lasting

3                    many months, police charged Denecho King with the

4                    murder of John Wifladt and the attempted murder

5                    of Colin Digness, as well as aggravated assault

6                    on Colin Digness.  The trial proceeded over a

7                    period of roughly four weeks this past April,

8          2018.

9

10          Summary of the Evidence At Trial:

11

12                             Most of the evidence produced by the Crown

13                   was not directly challenged by the defence.  The

14                   issues concern the conclusions that can or cannot

15                   by drawn from the evidence and whether or not the

16                   conclusions I draw and the facts I find as a

17                   result are sufficient to prove the guilt of the

18                   accused beyond a reasonable doubt.  The following

19                   is a summary of the evidence which was either

20                   conceded or not directly challenged and which I

21                   accept as true.  I will also mention the evidence

22                   that is contested and which will require further

23                   analysis.

24                             There was an extensive amount of evidence

25                   called by the Crown during the four-week trial.

26                   We heard from virtually all of the police

27                   officers involved at every level of the


 

 

1                    investigation, lab technicians and scientists,

2                    numerous civilians, taxi drivers, and emergency

3                    medical personnel.  There were numerous exhibits

4                    filed including maps, photographs, diagrams, CCTV

5                    footage, and expert reports.  There were also a

6                    number of agreed statements of fact filed

7                    covering evidence not in dispute.

8                             The defence did not present any evidence.

9                             I am not going to attempt to summarize all

10                   of the evidence in this decision, only that which

11                   I believe relevant to the general narrative and

12                   the issues I need to decide.  I have considered

13                   all of the evidence during my deliberations.

14                             The Crown has clearly established

15                   jurisdiction and date and time; the defence has

16                   helped to narrow the issues by very fairly

17                   conceding the nature of the injuries suffered by

18                   the two men, what caused these injuries, and the

19                   cause of death of John Wifladt.  What remains is

20                   the question of whether or not the Crown has

21                   proven beyond a reasonable doubt the identity of

22                   the person who caused these injuries, and if so,

23                   the degree of responsibility of that person.

24

25                   Narrative Evidence Relating to John Wifladt,

26                   Colin Digness, and Sunridge Apartments:

27


 

 

1                             Colin Digness had been drinking both at home

2                    and around town on the evening of December the

3                    13th, 2014.  He met up with John Wifladt at some

4                    point, but, in any event, they were together

5                    drinking at the Gold Range Bar shortly after

6                    midnight.

7                             He and John had been best friends for a long

8                    time.  They had no history of fighting with each

9                    other, and the most that could be said was that

10                   they occasionally argued about hockey.

11                             They went to a house party at Joanne Black's

12                   in N'dilo where they were confronted by Duncan

13                   Sangris, who accused them of drinking his beer.

14                   The confrontation was broken up before it

15                   resulted in a fight.

16                             They left the party by taxi at 3:58 a.m. and

17                   arrived at Sunridge Apartments at 4:08 a.m.  They

18                   were described by the taxi driver as intoxicated,

19                   and they appeared to be arguing about what they

20                   planned to do next.

21                             Sunridge Apartments is a three-storey

22                   building.  The apartment directly below Unit 323,

23                   Unit 224, was, at that time, occupied by Kristie

24                   Modeste, Johnny Ongahak, and their infant child.

25                             At approximately 4 a.m., Kristie Modeste

26                   responded to a knock at the door.  She looked

27                   through the peephole and saw Denecho King.  He


 

 

1                    asked for Johnny.  Denecho and Johnny Ongahak are

2                    long-time friends.  He had visited them before,

3                    most recently a few weeks back to borrow some

4                    gloves.  He was known to her and she clearly

5                    recognized him.  They spoke through the door.

6                    She told him Johnny was busy with their daughter

7                    and Denecho left.

8                             About 20 minutes later, at approximately

9                    4:20 a.m., Kristie Modeste was disturbed by what

10                   she recalled as loud banging coming from

11                   upstairs.  Johnny Ongahak's recollection was of

12                   loud music and thumping.  In any event, there was

13                   a disturbance and he went upstairs to speak to

14                   Colin Digness.  The two men knew each other

15                   casually and Johnny had occasionally had to ask

16                   Colin to turn down his music.  He had never

17                   encountered any unpleasantness when doing so.

18                             When he got upstairs, the door to 323 was

19                   ajar.  He pushed it open and found the two men on

20                   the floor.  There was blood everywhere.  Colin

21                   was trying to get up, was disoriented, and

22                   nonresponsive.  Johnny went downstairs and told

23                   his girlfriend to call an ambulance then ran back

24                   upstairs.  He stepped across John Wifladt and

25                   walked through the living room to turn down the

26                   music.  Both men were still unresponsive.  Johnny

27                   Ongahak went back downstairs, spoke to dispatch,


 

 

1                    then waited for the police to arrive.

2                             Police arrived at 5:00 a.m.  Johnny Ongahak

3                    showed them to the door of 323.  The conduct of

4                    the police and EMTs was unremarkable and is only

5                    relevant to my assessment of the DNA evidence, so

6                    I will deal with it later.

7                             Colin Digness owned a collection of three

8                    Japanese-style ornamental swords which were

9                    normally displayed in a stand in the living room.

10                   These swords were for display purposes only,

11                   having blunt edges.  They were three different

12                   lengths ranging from dagger size to a long sword.

13                   When police arrived on the scene, the display had

14                   been overturned, the sheathes scattered, and the

15                   two longer swords were on the floor close to the

16                   injured men with blood on their blades.

17                             The swords were seized and sent for DNA

18                   analysis.  There was no indication that the

19                   shortest sword had been used.

20                             There was no evidence that Denecho King was

21                   known to either Colin Digness or John Wifladt, or

22                   that he had ever before visited Unit 323.

23

24          Narrative Evidence Relating to Denecho King:

25

26                             Denecho King spent the afternoon and evening

27                   of December 13 drinking at Fort Gary Apartments


 

 

1                    with Sam Kelly, Danika Fehr, and Candace Minoza.

2                    At some point he became angry and threw a chair

3                    against the wall.  He also injured his right arm

4                    on a glass window near the outside side entrance

5                    to the apartment building, which caused bleeding.

6                    He left the apartment building at 12:55 a.m. in a

7                    taxi with Fehr and Minoza.  This was captured on

8                    CCTV.

9                             Shortly after, he became upset with Danika

10                   Fehr and crawled into the backseat of the cab to

11                   assault her.  He was bleeding enough in the cab

12                   that the driver had to clean it with sterilizing

13                   wipes before continuing his night.  Denecho left

14                   the cab and the driver dropped the women off at

15                   the Raven Bar.

16                             Denecho King was next seen on CCTV entering

17                   Fort Gary Apartments at 2:00 a.m., then leaving

18                   at 3:26 a.m.  The next time he is seen is by

19                   Kristie Modeste at 4 a.m. at Sunridge Apartments,

20                   as I have already described.

21                             The CCTV outside of Northern News Services

22                   filmed Denecho King walking towards the Northern

23                   Lights Motel at 5:08 a.m., where he was filmed by

24                   the motel CCTV talking to the night concierge,

25                   James Curtis, at 5:09 a.m.  Denecho was a friend

26                   of Mr. Curtis' cousin, and he had known him for

27                   some time.  He can be seen talking in an animated


 

 

1                    fashion to Mr. Curtis, making swinging motions

2                    with both hands and gesturing to his forehead.

3                    Mr. Curtis does not appear to be paying much

4                    attention to Denecho.  He was watching a

5                    documentary at the time.

6                             His first recollection is that Denecho King

7                    had been talking about "defending himself from a

8                    couple of guys with a bat or something."  Under

9                    cross-examination, Mr. Curtis agreed that he was

10                   not certain if Denecho King was talking about two

11                   guys or one, or when what he was talking about

12                   had happened.

13                             Denecho King then went to Room 24 of the

14                   Northern Lights Motel where he continued drinking

15                   with a number of young men from Behchoko.  He was

16                   seen on CCTV with two of these men leaving the

17                   Northern Lights, arriving at Mac's Convenience

18                   Store and returning to the Northern Lights all

19                   between 5:25 and 5:43 a.m.

20                             A number of people were in and out of Room

21                   24 including Lou Koyina.  Everybody who attended

22                   Room 24 that night was intoxicated, most heavily

23                   so.  Mr. Koyina testified to a comment that he

24                   says he heard Denecho King make.  Mr. Koyina

25                   testified that he remembers Denecho King saying

26                   "I killed two guys".  Mr. Koyina was drunk at the

27                   time and did not remember the comment a couple of


 

 

1                    days later.  The defence takes the position that

2                    Mr. Koyina's evidence is neither reliable nor

3                    credible.  I will address this later.

4                             Denecho King slept in Room 24.  He was still

5                    sleeping when the other occupants of the room

6                    left.  One of the men had lost one of his shoes,

7                    so he took Denecho's shoes.  These shoes were

8                    later seized and tested but did not provide any

9                    meaningful evidence.

10

11                   Forensic Evidence:  Initial Investigation,

12                   Fingerprints, Blood Pattern Analysis, and DNA:

13

14                             Members of the Forensic Identification

15                   Section of the RCMP did an initial inspection of

16                   the hallways and staircases of Sunridge

17                   Apartments.  They did not find any areas of blood

18                   staining or other issues that would have required

19                   further investigation.  The main investigator

20                   acknowledged that there was a smear in the main

21                   staircase that appeared to be blood, as well as a

22                   noticeable stain to the carpet at the entrance to

23                   Unit 323.  He did not test the smear stain

24                   because he knew that main staircase was the route

25                   taken by the emergency medical personnel as they

26                   were transporting the injured men and did not

27                   believe that the stain would be meaningful.  He


 

 

1                    did not test the stain at the entrance to 323

2                    because, in his opinion, it did not appear to be

3                    a blood stain.  There were no blind swabs or

4                    random samples taken from the doorknobs, handles

5                    or railings of the entrance, corridors, or

6                    stairwells.

7                             Selective areas inside Unit 323 were checked

8                    for fingerprints.  Prints were found on the sword

9                    sheaths, some of which remain unknown.  The

10                   handles and blades of the swords were not checked

11                   for fingerprints in order not to compromise DNA

12                   analysis.  Denecho King's fingerprints were not

13                   found in Unit 323.

14                             DNA analysis confirmed that blood found on

15                   the blade of the medium-length sword belonged to

16                   Colin Digness.  This sword had been located on

17                   the living room floor, close to where Colin

18                   Digness was found in the hallway.  DNA analysis

19                   confirmed that blood found on the long sword

20                   belonged to John Wifladt.  This sword, which had

21                   a bent blade, was originally located on the

22                   hallway floor beside where John Wifladt was

23                   laying.  It is clear and not disputed that the

24                   medium-length sword caused the injuries to

25                   Colin Digness and the long sword caused the

26                   injuries, including the fatal injury, to

27                   John Wifladt.


 

 

1                             This was further confirmed, in part, by the

2                    findings of the blood pattern analyst.  There

3                    were two castoff patterns, made by drops of blood

4                    leaving a moving blood source, on the same small

5                    wall at the end of the hall.  They were basically

6                    vertical, forming a line of dots from the lower

7                    part of the wall up to approximately head-height.

8                    One came back as blood from John Wifladt, the

9                    other as blood from Colin Digness.

10                             Blood pattern analysis was also able to

11                   confirm that the men were injured roughly where

12                   they were found, at the end of the living room

13                   closest to the hall and into the hall.

14                             Before being taken into evidence, the long

15                   sword was moved to the living room by one of the

16                   first responders in order to get it out of the

17                   way of the medical personnel.  This was done by

18                   picking the sword up by the guard with a gloved

19                   hand.  The swords appeared to have been moved

20                   slightly a second time, so that one sword was

21                   placed to the other side of the second sword.

22                   There was no evidence as to how this occurred.

23                   The emergency medical personnel who assisted the

24                   scene all testified to having seen swords and to

25                   having consciously avoided touching them.  Given

26                   the tight quarters and the obvious priority given

27                   to helping the injured men, I accept that it is


 

 

1                    possible that one of the EMTs may have touched

2                    the nearest sword with his boot, and I have

3                    factored this into my analysis.

4                             The swords were moved again during the blood

5                    pattern analysis.  This was in the usual course

6                    of the investigation, it was done with gloved

7                    hands, and there was nothing noteworthy about it.

8                    It does appear, however, that a piece of paper,

9                    apparently left behind by the medical personnel,

10                   moved a few inches and ended up under the handle

11                   of one of the swords during the blood pattern

12                   analyst's investigation.  No explanation for this

13                   was given.

14                             The swords were placed in separate paper

15                   exhibits backs and transported to the detachment

16                   evidence locker.  During transportation, the

17                   point of the long sword poked through the paper.

18                   It was jiggled back into the bag and the hole was

19                   taped up.  The paper exhibit bags were placed in

20                   a locked gun case for shipment to the forensic

21                   laboratory.  Upon arrival at the lab, the tape

22                   holding the bag containing the longer sword had

23                   come loose.

24                             I have already referred to the DNA results

25                   obtained after testing the blood on the sword

26                   blades.  The DNA technician also took a swab from

27                   the handle and guard area of both swords,


 

 

1                    specifically avoiding any spots of apparent

2                    blood.  Despite this, one of the samples tested

3                    positive after a presumptive test for hemoglobin,

4                    which did not prove that the sample was in fact

5                    blood, only that hemoglobin was present.  These

6                    samples were both known in one case and believed

7                    in the other case to be epithelial or skin DNA.

8                    The results of DNA testing showed a strong

9                    primary profile in both samples with minor

10                   profiles which were insufficient for analysis.

11                   The DNA was present in what was referred to as a

12                   surprisingly large and very similar amount on

13                   both handles and matched the known sample from

14                   Denecho King.

15                             The opinion of the DNA expert was that the

16                   amount of epithelial DNA on the handles indicated

17                   primary transfer.  In other words, Denecho King

18                   had handled the swords.  This was challenged by

19                   the defence.  While it was conceded that

20                   Denecho King's DNA was found on the handles, the

21                   way in which it got there is disputed.

22

23          Crown Position:

24

25                             The Crown says that the evidence establishes

26                   beyond a reasonable doubt that Denecho King was

27                   the person who killed John Wifladt, that he


 

 

1                    either intended to cause his death or intended to

2                    cause him bodily harm that he knew was likely to

3                    cause his death and was reckless with whether he

4                    died or not, making him guilty of second degree

5                    murder.  The Crown says the evidence also shows

6                    beyond a reasonable doubt that Denecho King

7                    intended to kill Colin Digness, making him guilty

8                    of attempted murder.

9                             The Crown points out that Denecho King was

10                   seen in Sunridge Apartments, where he did not

11                   reside, very close to the time that John Wifladt

12                   and Colin Digness were injured.  They say that

13                   the fact that Denecho King's DNA was found on the

14                   sword handles is compelling evidence, that the

15                   movements made in the Northern Lights Motel lobby

16                   about an hour later amount to a re-enactment of

17                   the violence, and that the comment made to Lou

18                   Koyina simply confirms what is proven by the DNA.

19

20          Defence Position:

21

22                             The defence argues that the Crown has not

23                   proven beyond a reasonable doubt that

24                   Denecho King is the person who committed these

25                   crimes.  The defence acknowledges that

26                   Denecho King's DNA was on the handles of the

27                   swords, but argues that this DNA could have been


 

 

1                    deposited through transfer and contamination and

2                    is therefore not conclusive of guilt.  The

3                    alternate possibility suggested by the defence is

4                    that Colin Digness and John Wifladt came into

5                    contact with Denecho King's DNA as they made

6                    their way into Sunridge Apartments and up the

7                    stairs to Unit 323, by touching door handles,

8                    railings, and possibly the floor removing their

9                    shoes.  It is known that Denecho was in the

10                   building very close to the same time as when the

11                   men arrived home.

12                             They then carried this DNA with them into

13                   the residence and got into a sword fight, perhaps

14                   playfully at first, leaving Denecho King's DNA on

15                   the sword handles.  There is evidence that

16                   John Wifladt and Colin Digness play-fought with

17                   the swords at least once after watching a Star

18                   Wars movie making lightsaber sounds as they did

19                   so.

20                             There is a profile picture from Facebook

21                   showing Colin Digness in a pose with two of the

22                   swords, which defence suggests makes this

23                   possibility more plausible.  As well, the gaming

24                   console was on when police arrived on scene, and

25                   Digness acknowledged playing both hockey and

26                   combat games on the system at other times.

27                             Defence suggests that the large amount of


 

 

1                    DNA found on the sword handles could be

2                    explained, in addition to the above scenario,

3                    through further contamination by police and

4                    emergency medical personnel, all of whom

5                    presumably could also have come into contact with

6                    Denecho King's DNA in the hallways and staircases

7                    of Sunridge Apartments.

8                             Dealing with the CCTV footage from inside

9                    the lobby of the Northern Lights Motel, defence

10                   put into evidence that Denecho King had in

11          December of 2014 just been released from jail

12                   after serving a sentence for attacking another

13                   man with a machete.  Defence suggests that

14                   Denecho King could just have easily been

15                   describing that incident to James Curtis as the

16                   attack on Digness and Wifladt.

17                             Dealing with the comment that Lou Koyina

18                   says he heard Denecho King make in the motel

19                   room, defence argues that both Mr. Koyina's level

20                   of intoxication and the fact that he did not

21                   remember the comment for some time makes his

22                   evidence unreliable and that it should be

23                   disregarded.

24

25          Analysis:

26

27              Denecho King is presumed to be innocent of


 

 

1                    these charges unless and until the Crown proves

2                    his guilt beyond a reasonable doubt.  This

3                    presumption of innocence persists throughout the

4                    trial and deliberation process.  The burden of

5                    proof never shifts from the Crown.

6                             Proof beyond a reasonable doubt is

7                    significantly more than proof of likely or

8                    probable guilt, although it is less than proof to

9                    an absolute certainty.  A common way of putting

10                   this is:  "Am I sure of the guilt of the

11                   accused?"  If I am not sure, then the Crown has

12                   not satisfied its burden and I must find the

13                   accused not guilty.

14                             This inquiry must be conducted without

15                   sympathy or prejudice.  Family members of both

16                   the victims and the accused sat through this long

17                   and difficult trial.  I have sympathy for

18                   everyone involved.  For the family of

19                   John Wifladt, who lost a beloved son and brother;

20                   for Colin Digness and his family, and for

21                   Denecho King and his family as well, as he faces

22                   one of the most serious charges in Canadian law.

23                   Triers of the fact, juries and judges, must put

24                   their sympathies and other feelings aside and

25                   decide criminal cases dispassionately and

26                   objectively, which I have done.

27                             The evidence in this case is circumstantial,


 

 

1                    which means that the trier of fact is asked to

2                    draw an inference.  There were no eyewitnesses to

3                    the events in Unit 323 on the morning of December

4                    14th, 2014 who can tell us what happened.

5                             There are a number of ways in which the

6                    interplay of circumstantial evidence with the

7                    requirement for proof beyond a reasonable doubt

8                    has been articulated.  It is generally accepted

9                    that in order to find guilt based on

10                   circumstantial evidence, the trier of fact must

11                   be satisfied beyond a reasonable doubt that guilt

12                   is the only rational conclusion that can be drawn

13                   from the evidence.  This is the approach that I

14                   have adopted in my deliberations.

15                             The circumstantial evidence in this case

16                   comes from the sequence of events before and

17                   after the offence, involving as well the

18                   interpretation of things the accused did and is

19                   alleged to have said as well as from the forensic

20                   evidence.

21                             The sequence of events, which I have already

22                   described in the summary of the evidence, has

23                   Denecho King arriving at the door to Kristie

24                   Modeste and Johnny Ongahak's apartment at

25                   Sunridge Apartments at approximately 4:00 a.m.

26                   He spoke to Ms. Modeste through the door and said

27                   he was looking for Johnny Ongahak.  He was told


 

 

1                    Mr. Ongahak was busy and he left the door.

2                             John Wifladt and Colin Digness arrived at

3                    almost exactly the same time, at 4:08 a.m.  At

4                    approximately 4:20 a.m., Kristie Modeste was

5                    disturbed by loud banging upstairs and sent

6                    Johnny Ongahak up to Colin Digness' apartment to

7                    deal with it.  Mr. Ongahak found the injured men

8                    at approximately 4:30 a.m.; police arrived at

9                    5:00 a.m.  At 5:08 a.m., Mr. King is seen on CCTV

10                   walking up to the Northern Lights Motel.

11                             Given the way these events unfolded, there

12                   was a very short window of time in which the

13                   violence in Unit 323 could have occurred, between

14                   4:08 a.m. and approximately 4:30 a.m.  What this

15                   sequence tells me is that the time Denecho King

16                   spent at the Sunridge Apartments coincides almost

17                   exactly with what must have been the time of the

18                   incident.  He left the Fort Gary Apartments at

19                   3:26 a.m. and arrived at the Northern Lights

20                   Motel at 5:08, so we know he could not have been

21                   at the Sunridge Apartments for very long.  The

22                   defence suggests that this was an innocent

23                   coincidence which explains the presence of

24                   Mr. King's DNA.  If so, this is a striking

25                   coincidence.

26                             On the CCTV footage, Denecho King can be

27                   seen swinging his arms appearing to hold an


 

 

1                    object or objects.  At times, he appears to be

2                    holding two objects in tandem, at others he

3                    appears to have two hands on one object.  He

4                    gestures to his forehead, where Mr. Digness was

5                    severely injured.  Mr. Curtis did not have a

6                    clear memory of what Mr. King was talking about.

7                    Defence suggests that Mr. King was describing

8                    another incident in which he injured another man

9                    with a machete and for which he had very recently

10                   been released from jail.  I believe it is far

11                   more likely that what he was describing was

12                   something that had happened at the Sunridge

13                   Apartments less than an hour before where we

14                   know, as a fact, that he happened to be at

15                   precisely the time in question.  The similarity

16                   between the events and the apparent depiction on

17                   CCTV is another striking coincidence.

18                             We know that Denecho King went from the

19                   lobby of Northern Lights Motel to Room 24, where

20                   he drank with a number of intoxicated young men

21                   from Behchoko.  One of these young men was

22                   Lou Koyina.  Mr. Koyina had never met Mr. King

23                   and referred to him as "the kid," although, he

24                   recalled him identifying himself as "Denecho."

25                   He testified that he remembered asking Denecho

26                   about the cut on his arm, to which Denecho

27                   replied "I killed two people."


 

 

1                             Mr. Koyina testified that he did not recall

2                    this when he gave his first statement to the

3                    police on December 16th, 2014.  His testimony was

4                    that "I did not know it until they said he had

5                    killed two people".  He provided a second

6                    statement on November 18th, 2016, in which he

7                    relayed the comment that he testified to.

8                    Mr. Koyina was an unsophisticated witness and his

9                    narrative did not follow a particularly logical

10                   sequence, but I found him to be honest and

11                   credible.  There were several inconsistencies

12                   between the statements, which I did not find

13                   damaging to his credibility.  He honestly

14                   described being quite drunk at the time in

15                   question saying he was a "9 out of 10".  This

16                   level of intoxication has an impact on the extent

17                   to which I can rely on his evidence, as does the

18                   timing of his recollection.  Common sense and

19                   experience tells me that it is not unusual for

20                   highly-intoxicated people to forget things they

21                   have seen and heard, only to remember them later

22                   when some external information or stimulus

23                   triggers that memory.  I find that Lou Koyina

24                   honestly believes that Denecho King said "I

25                   killed two people", and I find it more probable

26                   than not that he did say this.  That is as far as

27                   I can go with that evidence.  That this would


 

 

1                    have been said a couple of hours after the

2                    incident is another striking coincidence.

3                             We also know that Denecho King had been

4                    drinking for many hours, beginning the afternoon

5                    of the day before.  We know that he had lashed

6                    out at three other occasions before arriving at

7                    the Sunridge Apartments, throwing a chair,

8                    breaking a window, and beating up a woman in the

9                    back of a cab.  I have been careful not to give

10                   this evidence too much weight in my analysis.  It

11                   is an error to assume that an accused person

12                   acted violently on one occasion because they had

13                   acted violently on another.  However, this

14                   evidence does form part of the sequence of

15                   events, and I have, therefore, considered it,

16                   although in an extremely limited way.

17                             The Crown does not need to prove every fact

18                   beyond a reasonable doubt before that fact can be

19                   considered by the trier of fact in determining

20                   whether or not the Crown has proven the guilt of

21                   the accused beyond a reasonable doubt.  The Crown

22                   needs to prove all of the necessary elements of

23                   the offence or offences to this standard, not

24                   every fact that supports that proof.

25                             The swords were tested for DNA evidence.

26                   Search technologist Rebecca Montoya took swabs of

27                   a number of areas on the swords.  Two of these


 

 

1                    swabs was a single swab taken from the handle and

2                    guard of each of the swords, with an attempt made

3                    to avoid any red-brown staining in areas where it

4                    was believed they may have been handled with a

5                    view to collecting any skin cells that may have

6                    been deposited.  Both of these swabs were also

7                    subjected to a screening test for blood.  The

8                    swab taken from the longer sword, which has been

9                    proven to be the weapon that caused the fatal

10                   injury to John Wifladt, tested positive, which

11                   means that blood may have been present.  A swab

12                   taken from the other sword did not.

13                             The DNA expert called by the Crown was

14                   Kenneth Hunter.  He was called to interpret the

15                   findings of the DNA analysis.  The two swabs from

16                   the handles came back with a "surprisingly

17                   significant amount of DNA" with the same donor

18                   profile, eventually matched to Denecho King,

19                   "significantly more than you would expect from a

20                   handle", and I quote, "roughly ten times the

21                   usual DNA."  Mr. Hunter said that he "felt very

22                   confident in stating that the primary transfer

23                   was most likely."

24                             There were secondary, insufficient profiles

25                   found as well, but they were significantly less

26                   present than the primary profile.  Of the 12

27                   nanograms of DNA found on the swab from the long


 

 

1                    sword, 75 to 85 percent was Mr. King's.  Of the

2                    10.15 nanograms of DNA found on the swab from the

3                    medium sword, 90 percent was Mr. King's.

4                             Primary transfer means direct handling.

5                    Mr. Hunter also suggested that some liquid, like

6                    sweat, may have assisted in the transfer, and

7                    that the transferor was most likely the last

8                    person who handled the swords.

9                             This is compelling and potentially damning

10                   evidence.  I am, as always, mindful of the

11                   presumption of innocence and the burden on the

12                   Crown.  The defence only has to raise a

13                   reasonable doubt.  They do not have to disprove

14                   this evidence, nor do they have to prove an

15                   alternative.

16                             Defence suggested a number of hypotheses to

17                   Mr. Hunter.  He was very ably cross-examined in

18                   relation to several articles on DNA transfer.

19                   Mr. Hunter acknowledged that transfer can occur,

20                   that contamination can also take place, but was

21                   firm in his position that transfers of these

22                   kinds could not have resulted in the amount of

23                   DNA found or the way in which it was found.

24                             I am mindful as well of the danger of

25                   allowing expert opinion evidence to usurp the

26                   function of the trier of fact.  Mr. Hunter

27                   provided opinion evidence, but it is up to me, as


 

 

1                    it is with every witness, to decide how much of

2                    his evidence I accept as fact.

3                             The alternative scenario suggested by

4                    Mr. Bran proposes Mr. Wifladt and Mr. Digness

5                    attacking each other, but my analysis applies to

6                    any possible assailant or assailants other than

7                    Denecho King.

8                             Even if I were to decide to give limited

9                    weight to the expert opinion evidence in the area

10                   of transfer DNA, in order to accept that somebody

11                   other than Denecho King wielded the swords that

12                   night, the following would all have to have

13                   occurred:

14                             First:  That Mr. King left a tremendously

15                   significant source or sources of DNA in the

16                   hallways and staircases of Sunridge Apartments,

17                   which was not found by the RCMP during their

18                   search of these areas.

19                             Second:  That Colin Digness and

20                   John Wifladt, or unknown person or persons came

21                   into contact with this surprisingly significant

22                   source of DNA with either both hands each, or

23                   each with their dominant hand, and picked up a

24                   significant quantity of Denecho King's DNA as

25                   opposed to the DNA of any of the other 30 or so

26                   people who actually live in Sunridge Apartments.

27                             Third:  That both of these people with their


 

 

1                    hands then managed to handle the swords with

2                    great force and violence leaving virtually only

3                    Denecho King's DNA and not their own DNA, which,

4                    presumably, is all over their own hands which are

5                    covered in their own skin cells.

6                             I have considered this suggestion a long

7                    time and very carefully, and I find it to be so

8                    implausible to be almost impossible.

9                             Defence also argued that the amount of DNA

10                   found on the sword handles could have been

11                   augmented by contamination through the actions of

12                   the police and the emergency medical technicians.

13                   While defence did point out several instances of

14                   theoretical contamination, most involved contacts

15                   with boots or fingertips and gloves.  Again, we

16                   would have to assume a significant source of

17                   Denecho King's DNA, and that these personnel came

18                   into contact with this DNA as opposed to that of

19                   anybody else in the apartment building.  It has

20                   to be borne in mind that we are talking about

21                   skin cells, not blood.  We know that the DNA on

22                   the shorter sword specifically tested negative

23                   for the presence of blood, and the other only

24                   indicated the possible presence of blood.  We

25                   know that both the swords were handled in roughly

26                   the same fashion with roughly the same amount of

27                   DNA on them.  At least one of the findings would


 

 

1                    require a major source of Denecho King's skin

2                    cells located in a place such that police and

3                    medical personnel could have walked in or handled

4                    it to the degree required to result in a

5                    significant transfer.  I find this suggestion to

6                    be highly unlikely and reject the suggestion that

7                    it could account for the amount of DNA found on

8                    the sword handles.

9                             Denecho King was a stranger to Colin Digness

10                   and John Wifladt.  These highly implausible and

11                   unlikely scenarios, which are the only possible

12                   innocent explanations for how Denecho King's DNA

13                   ended up on the handles of the weapons used to

14                   injure one and kill the other of these two men,

15                   also have to be seen in the context of the rest

16                   of the evidence.

17                             Putting together the presence of

18                   Denecho King at the Sunridge Apartments at the

19                   exact, narrow time that the men were injured, the

20                   compelling DNA evidence, and the pantomime

21                   motions made by Mr. King in the Northern Lights

22                   Motel lobby, the only rational conclusion I can

23                   reach is that the DNA was deposited by

24                   Denecho King when he used the swords to injure

25                   Colin Digness and ultimately kill John Wifladt.

26                             There is evidence that Denecho King had been

27                   consuming alcohol and was intoxicated at the time


 

 

1                    of this incident.  Murder and attempted murder

2                    are crimes of specific intent and there are

3                    occasions when drunkenness can operate to reduce

4                    what otherwise would have been murder to

5                    manslaughter, a crime of more general intent.  We

6                    have evidence from CCTV footage showing Mr. King

7                    at 3:36 a.m. and 5:08 a.m., shortly before and

8                    shortly after the incident.  He appears

9                    coordinated and fluid in his motions.  There is

10                   nothing to indicate that he was intoxicated to

11                   the extent that he was incapable of forming the

12                   specific extent required.

13

14          Decision on the Offences Charged:

15

16                             The injuries to both men were extreme, with

17                   both suffering deep puncture wounds to the body

18                   as well as blows to the head.  In order to be

19                   found guilty of second-degree murder, a person

20                   must either intend to kill or intend to cause

21                   bodily harm that they know is likely to cause

22                   death and be reckless whether death ensues or

23                   not.  In order to be found guilty of attempted

24                   murder, the person must intend to kill.  For

25                   aggravated assault, all that is required is

26                   objective foresight of bodily harm.

27                             However Denecho King found himself in Colin


 

 

1                    Digness' apartment, I do not believe that he went

2                    there intending to hurt anyone.  The weapons used

3                    were found on site, not carried by Mr. King.  If

4                    anything, based on his behaviour at other times

5                    on the 13th and 14th, he was simply looking for

6                    people to party with.  Whatever happened happened

7                    very quickly.

8                             I have no doubt, given the nature of the

9                    injuries, that in the heat of the moment Mr. King

10                   intended to cause bodily harm that he knew was

11                   likely to cause death and he was reckless as to

12                   whether death ensued.  I do have a doubt as to

13                   whether he actually intended to kill either John

14                   Wifladt or Colin Digness.

15                             I, therefore, find Denecho King guilty of

16                   second-degree murder in the death of the

17                   John Wifladt and aggravated assault on

18                   Colin Digness.

19      -----------------------------------------------------

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1

2      CERTIFICATE OF TRANSCRIPT

3

4                    I, the undersigned, hereby certify that the

5            foregoing pages are a complete and accurate

6            transcript of the proceedings taken down by me in

7            shorthand and transcribed from my shorthand notes

8            to the best of my skill and ability.

9                    Dated at the Town of Fort Providence, Northwest

10                   Territories, this 31st day of October, 2018.

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12                             Certified Pursuant to Rule 723

13                             of the Rules of Court

14

15                             __________________________

16                                                          Karilee Mankow

17                                                          Court Reporter

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 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.