ONTARIO COURT OF JUSTICE
DATE: 2025 04 25
Location: Kenora
BETWEEN:
His Majesty the King
— AND —
Cadence Kakepetum
Before Justice Evelyn J. Baxter
Heard on April 10, 17, 2025
Reasons for Judgment released on April 25, 2025
James Little — counsel for the Crown
Aaron Seib — counsel for the accused Cadence Kakepetum
Baxter J.:
[1] (Orally) These are my reasons for judgment in the aggravated assault trial of Ms. Kakepetum. Aggravated assault is a straight indictable offense. The accused elected to be tried in the Ontario Court of Justice.
[2] According to an Agreed Statement of Facts submitted to the court, on August 7, 2022, in the City of Kenora, the victim, Marissa Spade, was viciously assaulted. Marissa Spade suffered multiple serious injuries, including trauma to her face, head and chest areas. She received a traumatic brain injury that required surgery in Winnipeg. A tracheostomy and feeding tube had to be inserted, and she is still in long term care in Thunder Bay. She is expected to have a substantial lifelong cognitive disability as a result of the aggravated assault. Because she had no memory of the assault, she was unable to give evidence in this case and could not be called as a witness.
[3] Two people were charged. One was a young person (AJ), who cannot be identified. The other person charged is the accused before the court, Cadence Kakepetum. The youth has since pled guilty and was sentenced in youth court.
[4] A trial for Ms. Kakepetum was commenced in Kenora on February 15, 2024. The court heard evidence from two witnesses. However, the trial could not continue before the original presiding justice, and pursuant to s. 669.2 of the Criminal Code, the trial had to be recommenced before me. On consent, the parties agreed to file the transcript of the proceedings from the first day as Exhibit 4 and to refile the other exhibits. Moreover, the court was directed to refer to R. v. J.D., 2022 SCC 15, to support the filing of the transcript in the first trial to recommence the current trial.
[5] Therefore, the trial continued on April 10 and 17, 2025 in person before me. Ms. Kakepetum was in custody.
[6] The parties agreed the injuries sustained by Ms. Spade amount to aggravated assault under s. 268 of the Criminal Code.
[7] Jurisdiction and date of the offense were admitted, as was the identity of Ms. Kakepetum being the person charged and is the accused before the court.
[8] At issue in this matter is whether Ms. Kakepetum participated in the aggravated assault upon Marissa Spade, which the crown must prove beyond a reasonable doubt in order to obtain a conviction.
The Evidence
[9] Kellie or Summer Twoheart testified on February 15, 2024. She said she came upon the scene on August 7, 2022, after walking from the washroom at the local waterfront pavilion. At the outset, in chief, she testified she did not have a good memory and wanted to re-read her statement to refresh her memory (Exhibit 4, page 7, line 26), but the crown pressed her for her independent recollection.
[10] Ms. Twoheart stated she saw two girls fighting with her friend, Marissa. She described the girls as “stomping” on Marissa’s head. She recognized the youth who was stomping but did not recognize or know the other girl. She pointed out Ms. Kakepetum in the prisoner’s dock in court but could not say she recognized Ms. Kakepetum otherwise in cross examination (Exhibit 4, page 30).
[11] Ms. Twoheart stated she saw Ms. Kakepetum doing most of the stomping as Ms. Twoheart was walking toward the area where the assault was taking place. She said she pushed the youth off Ms. Spade to stop the assault, and the other girl was already walking away. She does not recall saying anything to the two girls. There was a man nearby sitting and watching the assault, but he, according to Ms. Twoheart, was not doing or saying anything, but as the assault ended, he was telling the girls to stop.
[12] Ms. Twoheart then indicated she helped the police locate the girls in a nearby alley where they were arrested. She described the arrest of the girls.
[13] Under cross-examination Ms. Twoheart discussed her drug addiction and the fact she had been free from drugs for a year at the time she testified. On the night of the assault, she had been using drugs throughout the day as was her usual practice at the time to avoid being “dope sick”.
[14] On the evening of the assault, Ms. Twoheart shared a 3.5 gram shot of methamphetamine mixed with opioids with 3 other people just before she used the washroom and walked up the stairs where the assault took place. She noted if a person takes “meth” for days on end, it could result in psychosis and hallucinations. She denied she was in that state when she saw the assault but did admit using the drugs can impact her recollection of details (Exhibit 4, page 22, line 1-3).
[15] From her vantage from the washroom to the scene up the walkway steps is at least 100 feet away, possibly more, and it was getting dark. She heard noises and walked toward the scene she described.
[16] It is noted in Exhibit 4 and the recording, Ms. Twoheart was a reluctant witness. She was testy, impatient and did not want to be in court at all. She had to be admonished by the presiding judge of her requirement to remain in court and complete her evidence. She was properly subpoenaed to be a witness.
[17] In cross examination Ms. Twoheart admitted she could not see from the washroom across the street who was doing what, only that there was a “commotion” on the stairs. (Exhibit 4, pages 26, 27) She also agreed the youth was doing most of the stomping and that Ms. Kakepetum was trying to get the youth to leave with her by grabbing her and trying to pull her away. She told the court the girls walked up the stairs to leave the area. (Exhibit 4, page 27, line 29)
[18] I did note the city’s CCTV footage that was later played for me clearly shows the 2 girls walk down the stairs, Ms. Kakepetum in front, with the youth trailing behind by about 10 steps or more.
[19] Ms. Twoheart said she went up to the street to flag down help after seeing how badly hurt her friend was. This is confirmed by the city’s CCTV footage of that street’s view.
[20] The next witness was AJ, the 17-year-old youth who was charged and who pled guilty to committing the aggravated assault on Ms. Spade.
[21] AJ testified she was drinking beer and walking around downtown Kenora with Ms. Kakepetum, who she had not known for long on August 7, 2022. AJ said Ms. Kakepetum asked her if she wanted to beat someone up to which AJ said “no”, but Ms. Kakepetum said if AJ did not then she would beat her up, so AJ said “okay”. AJ and Ms. Kakepetum were walking up the ramp and saw Ms. Spade. AJ said she grabbed Ms. Spade, threw her on the ground and started kicking her body and face, then Ms. Kakepetum joined in. (Exhibit 4, page 37)
[22] AJ said Ms. Kakepetum was using her right foot to kick Ms. Spade in the face. The two of them kicked Ms. Spade for a couple of minutes until Ms. Twoheart came up the ramp saying AJ’s name. Ms. Twoheart called the police, and the girls “took off” to a nearby alley.
[23] AJ said she grabbed and beat up Ms. Spade, who she did not know, because she was afraid of Ms. Kakepetum. She also did not recall if anyone was nearby where they were beating Ms. Spade. When they left the scene, AJ said she left the area first, followed by Ms. Kakepetum.
[24] AJ testified Ms. Kakepetum was wearing an orange shirt and black shorts that day, while AJ was wearing a pink shirt and blue jean shorts.
[25] Under cross examination, AJ said she had been out walking around Kenora most of the day drinking beer. She would occasionally see Ms. Kakepetum throughout the day, but they did not spend the whole day together. At some point in the latter part of the day, Ms. Kakepetum’s grandfather bought them beer. AJ admits she “blacked out” during some parts of the evening.
[26] According to AJ, she and Ms. Kakepetum kicked Ms. Spade to the point there was blood spattering around and on the ground. They stopped when they heard someone coming telling them to stop, but AJ stopped and walked away followed by Ms. Kakepetum. They go up the stairs to the street and off to back alleys.
[27] AJ also agreed that she believed if Ms. Kakepetum was the main perpetrator she could get a lighter sentence as she had not yet been sentenced for this incident when she testified. She told the court she was afraid of Ms. Kakepetum and took part in the assault so she would not be assaulted herself.
[28] It was suggested by defense counsel that AJ and Ms. Kakepetum were on the stairs drinking with Ms. Spade and others, and AJ was in a blackout at that point. Ms. Spade got up to leave, hugged Ms. Kakepetum, gave her a kiss goodbye, and as she left, AJ ran up to her, grabbed her and began the assault. Ms. Kakepetum tried to get AJ to stop and to leave by tugging on her shirt or pulling her away. AJ could not agree or disagree as she said she did not remember what had occurred.
[29] At this point the city’s CCTV videos were played for the witness that showed Ms. Kakepetum wearing black pants and a green t-shirt, with AJ following behind her wearing a pink shirt and black shorts. They are seen walking away from the scene down the stairs and turning left near the pavilion mentioned earlier. At one point AJ is seen on video turning back to gesture and possibly say something to Ms. Twoheart who was with the injured Ms. Spade.
[30] Another video of the alley where the girls were arrested was played for the witness. It showed AJ walk up to a man with Ms. Kakepetum walking away from them. AJ then grabbed the man, assaulted him and tried to swing him around, likely to throw him off balance. AJ said she did not remember doing this and that she was in a blackout. Further, she had not seen the videos before. Once confronted with the videos, AJ shut down and did not answer several of the questions put to her.
[31] As AJ left the courtroom she yelled to Ms. Kakepetum, “You’re lucky I don’t fucking kill you”. (Exhibit 4, page 64)
April 10 and 17, 2025 – Trial Continuation
[32] Ben Chicago Kabestra (Mr. Chicago) was the crown’s next witness. He was the man sitting on a concrete barrier/ledge on the side of the stepped walkway and who observed the assault.
[33] Mr. Chicago described himself as a chronic alcoholic who generally spends his days walking around Kenora, drinking anything he can “get his hands on” and mingling with others on the streets.
[34] He said nothing unusual happened on August 7, 2022, until the evening when he saw two Indigenous girls stomping on a woman’s head near where he was sitting next to the stairs described earlier.
[35] Mr. Chicago said he was quite intoxicated but was adamant he knew what he saw. He did not push the girls away as he was afraid he could get charged, so he chose to not get directly involved.
[36] In cross examination, Mr. Chicago could not identify Ms. Kakepetum in court, admitting he only learned her name from the subpoena he was served.
[37] Mr. Chicago also admitted he usually periodically blacked out from drinking throughout the day, but if he is given time to think about things or has heard from others, he can remember things. He could not recall seeing Ms. Twoheart that night. He also said he saw two girls holding onto each other for leverage as they stomped or kicked Ms. Spade.
Police Evidence
[38] The remaining crown witnesses were three police officers who described the call to the incident, the arrests and the forensic evidence obtained and processed. The arresting officer testified AJ was combative with him and he had to punch her in the face to gain control of her. Ms. Kakepetum said she told the officer she did not “do anything” when she was arrested. She also told police AJ assaulted Ms. Spade because she had kissed Ms. Kakepetum.
[39] Next OPP Staff Sergeant David Delorme, Regional Manager for Forensic Identification Services, testified. He was the officer who processed the blood/DNA evidence that was sent to the Centre for Forensic Sciences.
[40] He reviewed and explained the photos taken of the scene, the accused persons and the items police seized. A photo book, three biology reports and videos were filed as Exhibits.
[41] When the accused and their clothing were photographed at the police detachment, Officer Delorme noted AJ had blood spatter on her legs below the knees. Her shoes had noticeable blood spatter stains on the tops, sides, heel areas and soles. He also noted one of AJ’s hands and a finger were swollen.
[42] Ms. Kakepetum had no visible blood on her clothing or person save one small blood stain on the outside heel edge of her right shoe and a small blood stain on her t-shirt. He did not sample or submit the stain on her shirt. In addition, he noticed a black hair on the shoelace of one shoe which was sent off to be tested.
[43] The stains were tested by CFS and confirmed to be Marissa Spade’s blood. The hair found on Ms. Kakepetum’s shoe was tested but no DNA could be obtained from it. Further, Ms. Spade, Ms. Kakepetum and AJ all had black/dark hair.
[44] With respect to photos of the scene, Officer Delorme noted the large pool of blood on the ground, which he described as a “blood letting” and a large, roughly 3 feet radius of blood spatter emanating from the pool of blood. Also visible were shoe impressions that matched AJ’s shoes.
The Defense Case
[45] Ms. Kakepetum testified. She denied taking part in the attack on Ms. Spade.
[46] According to Ms. Kakepetum she had been drinking all day on August 7, 2022 – at first to stop the withdrawal symptoms in the earlier part of the day, and the rest of the day was to get intoxicated. She had been living on the streets on and off because her mother did not allow her to be in her house intoxicated. She was 19 years of age in August 2022.
[47] Ms. Kakepetum said she had not met AJ before that day but decided to walk around with AJ sharing the beer her grandfather bought for her. She and AJ met up with Ms. Spade and Mr. Chicago at the stairs mentioned earlier. They shared some beer, and as Ms. Spade was leaving, she hugged and kissed Ms. Kakepetum. Ms. Kakepetum knew Ms. Spade and called her “aunty” because Ms. Spade was dating Ms. Kakepetum’s aunt.
[48] As Ms. Spade walked away, AJ ran after her, grabbed her by the jacket, swung her around until Ms. Spade fell to the ground, whereupon AJ began stomping and kicking her in the face, head and chest.
[49] Ms. Kakepetum described, at one point, seeing AJ kick Ms. Spade’s head on the left side causing her head to snap to the right and then seeing a lot of blood “splatter” out of her mouth. At that point Ms. Kakepetum said she grabbed AJ at the shoulder area trying to get her to stop and leave. Ms. Kakepetum said she got scared because she realized the situation she was in.
[50] She noted Mr. Chicago was “just sitting there” not saying or doing anything. Ms. Kakepetum said she walked away down the stairs. AJ followed behind, and they circled back up toward the street via another set of stairs toward the alley where they were arrested. She described feeling like her “buzz” was wearing off.
[51] In the alley she saw AJ assault a man. After that assault, Ms. Kakepetum tried to calm AJ down by giving her more beer. She was unsure what to do. She noted she wanted to walk away from everyone and to keep AJ from other people as she thought AJ might continue assaulting people.
[52] Under cross examination, Ms. Kakepetum explained she was afraid when Ms. Twoheart came up to the scene, because it might look like she was involved given she was standing next to AJ. She was trying to get AJ away from Ms. Spade, and when AJ would not immediately leave, Ms. Kakepetum walked off, which was when AJ decided to follow.
Defense Closing Argument
[53] Counsel argued this case requires a R. v. W.D., [1991] 1 S.C.R. 742 analysis, and Ms. Kakepetum ought to be acquitted based on the analysis of all three prongs of the W.D. test. He pointed out Ms. Kakepetum’s evidence was uncontradicted and not successfully challenged. The credibility and reliability issues with the evidence of the civilian witness are clear and should convince the court of a reasonable doubt.
[54] Ms. Kakepetum’s evidence was also supported to some degree by the evidence of Ms. Twoheart and Mr. Chicago. The most important factor for the defense was the forensic evidence supporting Ms. Kakepetum’s version of events.
[55] Further, AJ’s outburst in court demonstrated her explosive temper and her inability to control herself, thus adding further credence to Ms. Kakepetum’s evidence.
Crown Closing Arguments
[56] Crown counsel argued the burden of proof beyond a reasonable doubt has been met. He argued the civilian witnesses all testified to seeing two girls assault Ms. Spade. The blood on Ms. Kakepetum’s shoe proves she took part in the assault, but likely not in the stomping on Ms. Spade’s head. If she kicked Ms. Spade on another part of her body, there would likely be no blood spatter on her clothing.
[57] He conceded AJ’s credibility was negatively impacted by her outburst/threat toward Ms. Kakepetum in court. He also acknowledged the other witnesses’ drug and alcohol use may have some impact on their reliability, but not to the level that would result in acquitting Ms. Kakepetum, because the civilian witness evidence is key to this case.
[58] The forensic evidence, while compelling, is not as vital as defense would have the court believe.
[59] The Crown referred to W.D., R. v. J.J.R.D. 2006 OJ, and R. v. Hoohing, 2007 ONCA 577, to support the position Ms. Kakepetum is guilty beyond a reasonable doubt.
Analysis
[60] Assault is defined in s. 265 of the Criminal Code as the intentional application, or attempt to intentionally apply, force directly or indirectly to another person without their consent.
[61] An aggravated assault occurs when the assault on a person results in the person being wounded, maimed, disfigured, or has their life endangered, as set out in s. 268 of the Criminal Code.
[62] The three-prong test set out in W.D., and the further guidance provided in J.J.R.D. regarding adequacy of reasons, are relied upon for the court to analyze and weigh all the evidence received in this case.
[63] As in W.D., credibility and reliability are fundamental matters to be considered on the evidence of the civilian witnesses and the evidence of the accused in the case at bar. In addition, the forensic evidence here cannot be ignored. I must consider and weigh all the evidence in this case in determining whether the crown has met its burden of proof.
[64] The test in W.D. is set out as follows:
- If I believe the evidence of the accused, I must acquit.
- If I do not believe the testimony of the accused but am left in reasonable doubt by it, I must acquit.
- Even if I am not left in doubt by the evidence of the accused, I must ask myself whether on the basis of the evidence I do accept, am I convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[65] In addition, Hoohing at paragraph 15, instructs the evidence of an accused is not to be considered in isolation of any evidence led by the Crown when conducting a W.D. analysis:
The evidence of any witness, including an accused, may be believable standing on its own, but when other evidence is given that is contradictory, or casts doubt on the accuracy or reliability of the witnesses’ evidence, that evidence may no longer be believable, or in the case of an accused, may no longer raise a reasonable doubt.
[66] Here, the evidence of the three civilian witnesses is of mixed credibility and reliability. Ms. Twoheart said at the outset of her evidence in chief she did not have a good memory. In addition, on the night of August 7, 2022, she had just taken drugs, and agreed her recall might also be affected by the drugs she took. Further, she gave conflicting evidence saying in chief it was Ms. Kakepetum doing the most stomping on Ms. Spade’s head, but in cross examination she said it was hard to see who was doing what to Ms. Spade given the distance, lighting, and the passage of time.
[67] Ms. Twoheart said she pushed AJ off Ms. Spade, and Ms. Kakepetum was already trying to leave (page 12 of Exhibit 4). Ms. Twoheart was also mistaken about the direction the girls went when they left the scene.
[68] AJ’s evidence, I find, was self-serving, did not match the video or forensic evidence, and clearly demonstrates she was trying to shift some blame to Ms. Kakepetum. While AJ admitted to grabbing and throwing Ms. Spade to the ground, and that she also stomped and kicked Ms. Spade’s head and face, she tried to say Ms. Kakepetum stomped on Ms. Spade’s face. If that were true, one would expect there to be much more blood on Ms. Kakepetum’s shoes and clothes as AJ had on hers, especially in light of AJ’s own admission she started the stomping on Ms. Spade’s head and Ms. Kakepetum joined in at some point.
[69] In addition, the videos show AJ was not correct about what direction the girls left the area and who was the first to leave. Furthermore, AJ did not accurately describe Ms. Kakepetum’s clothing, nor did she mention she assaulted another person in the alley where she and Ms. Kakepetum were arrested. When confronted with the video evidence, she shut down and did not answer the questions put to her.
[70] AJ did not recall Mr. Chicago being present during the assault even though she may have been drinking beer with him just before the attack on Ms. Spade.
[71] Finally, I simply do not believe AJ’s evidence Ms. Kakepetum wanted to beat people up, and AJ complied out of fear of being beaten up by Ms. Kakepetum. Given AJ’s outburst in court, the random assault on the man in the alley, her resisting police, I find AJ’s evidence not sufficiently credible or reliable. I find it far more probable AJ was the aggressive person of the pair as demonstrated by the other evidence presented.
[72] Mr. Chicago, the bystander who admitted to being intoxicated, in the throes of his chronic alcoholism, in and out of blackouts that day, and whose memory needed time and reminders to come together, testified he saw two girls hanging onto one another to gain leverage while they were stomping on Ms. Spade’s head and face.
[73] He did not recall Ms. Twoheart being there, nor would he agree his level of intoxication and the blackouts would affect his perception and recall. While Mr. Chicago believed he saw two girls stomping on Ms. Spade, I find his memory of the events of that night to be unreliable, particularly considering the blood evidence I reviewed. He acknowledged being intoxicated, in and out of blackouts, and having relied on “street chatter” to assist his recollection.
[74] Moreover, Mr. Chicago did not identify Ms. Kakepetum. He did not know Ms. Kakepetum and did not recognize her in court except to assume her identity, because she was in the prisoner’s box, and the name on his subpoena revealed the name of the accused. The frailty of in dock identification has been commented upon in jurisprudence and scholarly writing for many years. Relying on his evidence and recall would be dangerous given the seriousness of the charge here.
[75] Turning to Ms. Kakepetum, her evidence is corroborated by the video, forensic and some of the witness evidence. She gave details of her movements of that day, who she met, how she shared her alcohol with others, and what occurred after Ms. Spade tried to leave the steps where they were socializing with Mr. Chicago and possible other people.
[76] Her evidence of how AJ attacked Ms. Spade by grabbing onto her jacket, swinging her around to get her to the ground so she could stomp on her is supported by the video later showing AJ using that same technique on the man she tried to put to the ground as she assaulted him.
[77] The blood that came out of Ms. Spade’s mouth when AJ delivered one of the kicks to her face is supported by the photos of the “blood letting” pool described by Officer Delorme. The direction of the blood spatters and the lack of blood on Ms. Kakepetum’s shoes support her version of events. If Ms. Kakepetum was stomping on Ms. Spade’s head and face, why is there not more blood on her and her clothes? All the police found on her shoe was one small drop of blood.
[78] Ms. Kakepetum knew Ms. Spade as her “aunty” given her relationship with Ms. Kakepetum’s aunt. She had only met AJ that day. It makes no sense she would take part in such a vicious, senseless attack on her aunt’s partner. Ms. Kakepetum stated AJ attacked Ms. Spade for the kiss she gave to Ms. Kakepetum when she was leaving the area.
[79] The city’s CCTV videos also support Ms. Kakepetum’s version of events as does the forensic blood evidence. When AJ assaulted the man in the alley, Ms. Kakepetum is clearly visible on the video walking away, avoiding the situation.
[80] When she was arrested, Ms. Kakepetum told police she didn’t do anything, and that AJ attacked Ms. Spade for kissing her.
[81] The evidence of the other witnesses was not sufficiently credible or reliable when taken in totality with the forensic evidence received and weighed and in considering the evidence of Ms. Kakepetum. While minor inconsistencies may not diminish the credibility of a witness, a series of inconsistencies can become quite significant and raise a reasonable doubt about the reliability of a witness’s evidence, which is what I find here. For the most part Ms. Kakepetum’s evidence was unshaken in cross examination. Based on the totality of the evidence I received in this case, I find that while I do not believe everything Ms. Kakepetum said, I am left with reasonable doubt as to whether she took part in the aggravated assault on Ms. Spade. The Crown has not met its onus here. Therefore, I must acquit Ms. Kakepetum of the charge of aggravated assault.
Released: April 25, 2025
Signed: Justice E.J. Baxter