Nunavut manslaughter case hinges on self-defence theory

The families of accused Colin Makpah and victim Donald James Gamble sat on opposite sides of the court room Nov. 7 to hear final arguments in Makpah’s manslaughter trial. (FILE PHOTO)

Did Colin Makpah act in self-defence, reasonable under the circumstances, when he stabbed and killed Donald James (D.J.) Gamble in Rankin Inlet in August 2010, after a drunken fight broke out in a friend’s apartment?

That’s the question Justice Neil Sharkey said he must resolve after defence and Crown lawyers made their final arguments in Makpah’s manslaughter case Nov. 7 at the Nunavut Court of Justice in Iqaluit.

Manslaughter is an unlawful killing without intent to cause death.

Makpah, whose three-week, judge-alone trial adjourned in May, sat in the courtroom gallery with his parents for the entire proceeding, which lasted more than five hours.

On the other side of the gallery sat six members of the victim’s family.

“This is not a ‘who done it’ case,” lead defence lawyer Shayne Kert said in her opening remarks.

“The accused testified that he stabbed the victim, that he put the knife in his own hand, and he explained his reason.”

Makpah was not angry at Gamble, who was only an acquaintance at the time of the stabbing, Kert said.

Makpah’s reason, Kert added, was to protect himself and others in the apartment from an angry, violent and drunken Gamble — a reason that could constitute a defence against manslaughter.

During the trial, Makpah testified that Gamble hit Sheryl-Lynn Outchikat, Gamble’s girlfriend, and then tossed Abraham Nakoolak, a friend, over a couch and pinned him to the ground.

Makpah testified at trial that in the melée that ensued, he got a knife to intimidate Gamble.

“Things escalated so quickly, everybody in the apartment testified… that it was like in fast motion,” Kert said.

Makpah testified during the trial that he told Gamble he was getting the knife, and announced when he returned with the knife, in an attempt to scare Gamble into stopping his violent behaviour.

But when Makpah returned with the knife, Gamble tackled him, pinning Makpah to the ground, Makpah said during the trial.

Outchikat then smashed a bottle over Gamble’s head, Makpah testified in May, while he was pinned to the ground.

Gamble began to rise and turn in Outchikat’s direction, and, “that’s when I stabbed him,” Makpah testified.

But the lead Crown lawyer, Faiyaz Amir Alibhai, told Sharkey that Makpah’s testimony, especially about the stabbing, is not believable and should be given little to no weight.

Alibhai said neither Outchikat nor Nakoolak — both of whom were Crown witnesses during the trial — testified about seeing the knife, hearing Makpah refer to the knife during the fight, or even to knowing that Gamble was stabbed until after the fight had ended.

“If your purpose is to intimidate someone with a knife, wouldn’t it make sense to show it?” Alibhai asked Sharkey.

Sharkey, who interjected regularly during the final submissions of both lawyers, pointed out that in the heat of the moment, it’s possible nobody saw the knife, but added he thought it was “odd” neither Outchikat nor Nakoolak heard Makpah mention the knife.

Even if Makpah can be believed about getting the knife for the purpose of intimidation, Alibhai said, it was unreasonable for him to get the knife in the first place.

That word “reasonable” is important because it could mean the difference between a guilty or not guilty verdict.

Makpah’s testimony about the escalating violence was exaggerated, Alibhai said, which makes getting the knife “unreasonable” under the circumstances.

Alibhai pointed out that only minor injuries had been inflicted by Gamble when Makpah went to the kitchen for the knife: a cut lip sustained by Outchikat and some bruising on Nakoolak.

“D.J. didn’t kick anybody. He didn’t choke anybody, or punch anybody, and he didn’t reach for a weapon,” Alibhai said.

“The nature of the danger doesn’t justify getting the knife.”

And the stab wounds inflicted by Makpah were disproportionately violent in relation to what was happening, Alibhai said.

During the trial, a pathologist testified to five “sharp wound injuries” found on Gamble’s body.

“There is no justification for four stab wounds and a wound to the neck,” Alibhai told Sharkey.

“It was far in excess of anything that was called for that night,” Alibhai said.

This question of proportionality, one of nine factors used to determine if self-defence is reasonable given the circumstances, Sharkey called an “overarching concern.”

“On the one hand, you don’t use a knife to break up a fist fight,” Sharkey said. But on the other hand, Makpah didn’t use the knife until he himself was pinned under Gamble, the judge added.

“Once he’s pinned, we can conclude that he has no choice but to use the knife… But he still went and got the knife and that’s a problem for proportionality.”

According to the Criminal Code of Canada, an accused person can claim self-defence after an offence if “the act committed is reasonable in the circumstance.”

But even defining “the act,” can be tricky in law. Was it when he got the knife or when he decided to use it?

Kert argued that “the act” in this case is the moment Makpah was forced to use the knife because, at first, Makpah did not intend to stab Gamble, only scare him.

“The act at issue here is not whether or not he got the knife… the act that is the offence is the stabbing,” she told Sharkey.

But Alibhai disagreed.

“You’d be wrong in law to only look at the moment the knife is used,” he said to Sharkey, “and not the whole circumstance, including reaching for the knife in the first place.”

In making his decision in this case, Sharkey has other factors to consider as well including:

• what other means of defence were available;

• the nature and force of the threat Gamble posed; and,

• how imminent was the use of force in the situation.

Sharkey said he will reconvene court Dec. 17 to announce when he will render his decision — one that will likely be delivered in court. The decision will follow at a later date.

Two courtroom officers guarded the doors of Courtroom 2 for the duration of final arguments after security concerns emerged repeatedly throughout the trial, at one point even causing an 8-month delay.

Makpah, dressed in a camouflage hoodie with a Chesterfield Inlet logo on the front, exchanged words with Kert at the end of the proceedings, but did not interact or look at Gamble’s family.

Manslaughter carries a maximum penalty of life imprisonment, but carries no minimum penalty unless a firearm is used.