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Judge to issue decision Oct. 12 on Nowdlak death

Court may choose from three possible verdicts

JIM BELL

A young Iqaluit man on trial for inflicting a savage beating on Davidee Nowdlak two years ago will find out from Justice Earl Johnson next month if he will be convicted of second degree murder, manslaughter, or aggravated assault.

Lawyers handling the young man’s trial gave their final submissions to Johnson last Friday in Iqaluit. The judge said he will be ready to deliver a verdict at 1:30 p.m. on Oct. 12.

The young man was under 18 at the time of the incident and was tried under the terms of the Youth Justice Act. His name may not be published or broadcast.

At about 2:15 a.m. on July 13, 2002, the teenager, who had been drinking heavily earlier that night, confronted Nowdlak on the street near the 300-block, accusing Nowdlak of stealing a carving from his grandfather.

The teen bashed Nowdlak in the head with a Coke bottle, then kicked the older man’s head repeatedly as Nowdlak lay on the ground. One witness said the youth stepped back and forth to kick Nowdlak’s head “like a soccer ball.”

After Nowdlak, 47, died at the Baffin Regional Hospital on Aug. 6, the youth was charged with second-degree murder.

Defence lawyer Michael Chandler argued that before reaching a second-degree murder or manslaughter verdict, Johnson must first decide who is ultimately responsible for causing Nowdlak’s death.

Chandler said that’s because Nowdlak, after getting extensive medical treatment in Ottawa, was in a coma, but still alive, when he was returned to an Iqaluit hospital on Aug. 2.

According to a doctor who gave evidence in the trial, Nowdlak’s severe head injuries left him in “a persistent vegetative state” from which he would never recover, but that he could be kept alive while in Iqaluit.

After two meetings between family members and medical staff in Iqaluit, a decision was made to discontinue medical treatment, the defence lawyer said. Nowdlak died four days after arriving in Iqaluit

“I am not commenting on the nature of the choice of the family. They had to deal with one of the most extremely difficult situations life can present. I am only arguing from a legal point of view,” Chandler said.

Chandler said that if the family had not made that decison, and Nowdlak had been kept alive by new medical technologies that did not exist when the applicable laws were made, then the youth could not possibly have been charged with murder.

Johnson interrupted Chandler several times to ask skeptical questions about the defence lawyer’s argument, at one point citing a legal text that contradicted it.

But Chandler responded by saying the family’s decision may create reasonable doubt that the youth’s actions were the legal cause of Nowdlak’s death.

Chandler said that if the judge decides that the discontinuation of medical care is the legal cause of Nowdlak’s death, then he must find the youth guilty of aggravated assault, not second-degree murder.

Then Chandler went on [to] say that even if the judge finds the youth is criminally responsible for causing Nowdlak’s death, Johnson must then decide between manslaughter and second-degree murder.

The defence argued that the youth may have been too drunk to realize what he was doing, and intended only to hurt Nowdlak, but not kill him.

Different witnesses provided different estimates about how much vodka and beer the youth drank that night, and a medical expert testified that the teen could have had so much alcohol in his body that his judgment and perceptions might have been severely impaired.

Michael Jones, a Crown prosecutor, responded by saying the youth knew enough about what he was doing that night to warn witnesses against “ratting” on him.

Jones also raised questions about the reliability of the medical expert’s estimate of the youth’s blood alcohol level, and suggested that it’s “the normal knowledge of someone of that age that a severe attack to the head is likely to cause death.”

As for the issue of who caused Nowdlak’s death, Jones cited a past legal decision that states “the accused’s conduct does not have to be the sole cause of death” for a court to bring in a murder verdict involving someone who dies while under medical treatment.

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