COURT FILE NO.: CR-19-0181-00
DATE: 2022-08-12
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Heather Bracken and Thomas Bud, for the Crown
- and -
JONATHAN YELLOWHEAD
Neil McCartney and Brooke Rogers, for the Accused
Accused
HEARD: April 4 -8 and 11-12, 2022 at Thunder Bay, Ontario
Regional Senior Justice B. R. Warkentin
Reasons for Judgment
[1] Jonathan Yellowhead was charged with manslaughter. It was alleged that he caused the death of Braiden Jacob, whose body was found on December 9, 2018. The indictment incorrectly stated that Mr. Yellowhead caused the death of Braiden Jacob on December 9, 2018. This error was explained by the Crown, with no objection by the defence. December 9, 2018 was the date that Mr. Jacob’s body was discovered. It was known that Jonathan Yellowhead had left Thunder Bay for Fort Hope, Ontario on December 7, 2018, and therefore could not have caused the death of Mr. Jacob on December 9, 2018.
[2] The theory of the Crown was that Mr. Yellowhead violently assaulted Mr. Jacob in the early morning hours of December 6, 2018, and that this assault was a substantial contributing cause of Mr. Jacob’s death. The Crown submitted that Mr. Jacob’s body was discovered 3 days later, on December 9.
[3] The majority of the evidence supporting the Crown’s position was circumstantial. The defence argued that there were at least two alternate suspects who may have caused the death of Mr. Jacob. He submitted that the police investigation into the alternate suspects was insufficient. He argued that the police focused their investigation only on Mr. Yellowhead to the exclusion of other suspects in order to move the case to an early conclusion. Counsel for Mr. Yellowhead stated that the police were motivated by a desire to reach a timely result because of the public criticism of the Thunder Bay Police Service (TBPS) for their failures in prior investigations regarding Aboriginal youth.
Background Facts and Evidence
Uncontested Background Evidence
[4] On December 5, 2018, a group of nine young people met up at the Victoria Inn in Thunder Bay. They congregated in a hotel room that was registered to Jonathan Yellowhead. Mr. Yellowhead had purchased a “Texas mickey” of vodka. A Texas mickey contains 120 ounces.
[5] None of the young people were from Thunder Bay. They were from various remote First Nations communities and were in Thunder Bay for differing reasons. The victim, Mr. Jacobs was in Thunder Bay from Summer Beaver, a remote First Nations’ community in Northwestern, Ontario. Mr. Jacobs was in Thunder Bay with his mother and sister for grief counselling.
[6] The accused, Jonathan Yellowhead was from the remote First Nation community of Fort Hope, Ontario. Before congregating in Mr. Yellowhead’s hotel room on December 5, 2018, Mr. Yellowhead and Mr. Jacob had never met. Another of the young people present that evening, Drema Beaver, brought Mr. Jacob with her to Mr. Yellowhead’s hotel room. Mr. Jacob was 17 years old on December 5, 2018.
[7] The nine young people shared the Texas mickey of vodka and over the course of about four hours consumed the entire bottle.
[8] Sometime around 1:10 am on December 6, 2018, the nine youth were evicted from the Victoria Inn due to an incident that involved a broken window. At that point, all nine youth were significantly impaired.
[9] Mr. Yellowhead and Mr. Jacob left the hotel together. They were observed on the Victoria Inn video cameras fleeing the hotel together. They were later seen on video camera footage in an area of Thunder Bay known as the Limbrick Complex at about 1:41 am on December 6 and leaving that area shortly thereafter. Mr. Yellowhead was observed on video, returning to the Limbrick Complex shortly after 4:30 am on December 6 and entering Unit 46E.
[10] Later that morning, Mr. Yellowhead’s father, Norman Yellowhead picked up Jonathan Yellowhead from Unit 46E. On December 7, 2018, Mr. Yellowhead flew from Thunder Bay to Fort Hope.
[11] Mr. Jacob’s mother contacted the Thunder Bay police in the morning of December 6th to report that Mr. Jacob was missing. The last sighting of Mr. Jacob was on the surveillance video from the Limbrick Complex on December 6, 2018 at 1:41 am.
[12] On December 9, 2018 at approximately 11:30 am, Mr. Jacob’s body was found in the Chapples Park area of Thunder Bay by a man out walking his dog.
Cause of Death
[13] The forensic pathologist, Dr. M. Pickup testified that the immediate cause of death was “hypothermia in a man with blunt facial trauma and ethanol intoxication”. Dr. Pickup noted that during the autopsy conducted on December 13, 2018, it was discovered that Mr. Jacob had a condition called dilated cardiomyopathy that may have contributed to his death but was not causally related to the immediate cause of death.
[14] In clarifying the meaning of dilated cardiomyopathy, Dr. Pickup explained that Mr. Jacob had an enlarged heart, and this may have caused problems for him due to the stress he would have been under from the assault. That type of stress would have increased the risk of cardiac arrythmia. Dr. Pickup stressed that he had no means of determining if that condition played a role in Mr. Jacob’s death because there is no way of testing for this after death. The person would have to be alive and tested for abnormal heart rhythm.
[15] Dr. Pickup also explained that the principal cause of death was hypothermia and explained that neither the blunt force trauma nor the ethanol intoxication was sufficient on their own to cause Mr. Jacob’s death. Dr. Pickup described Mr. Jacob’s injuries as follows:
a) Extensive blunt facial trauma that included fractures to his nose, the left frontal bone into the sinus area of the skull, and the orbital bones around his eyes (medial orbital wall fractures on both sides of the eyes in the area closest to the nose);
b) Both of Mr. Jacob’s eyes were blackened and showed bleeding into the membranes around his eyes (periorbital hematoma);
c) Mr. Jacob’s upper lip was swollen and had small areas of lacerations and tears, his bottom lip had lacerations and was discoloured and there was hemorrhaging on the tip of his tongue;
d) The internal examination showed there was a lot of bleeding into the scalp;
e) There were bruises to Mr. Jacob’s torso, left shoulder, left buttock, left lower back with hemorrhaging to the tissues beneath it, and hemorrhaging to the muscles of right buttock; and
f) There were bruises on his shins and knees, the back of his left hand and back of his left forearm as well as to his left upper arm, right elbow and 3 bruises to the back of his right forearm and wrist.
[16] Dr. Pickup testified that it was his opinion that Mr. Jacob’s injuries were all blunt force injuries, caused by his body being struck by either a body part or something firm. He also indicated that the body could have struck an unyielding surface. It was his opinion, however, that while he could not state what exactly caused the injuries, the pattern of the injuries was very typical of an assault. In making this statement, he noted that the injuries to Mr. Jacob’s eyes are those commonly seen in fist fights. In particular, the orbital and nose fractures are usually caused from a forceful blow, and the fact that they were on both sides of his face indicated the type of injuries sustained when a person has been assaulted.
[17] Dr. Pickup was clear that the blunt facial trauma alone would not have resulted in Mr. Jacob’s death. He could not state with certainty whether, absent the ethanol intoxication, the injures would have resulted in a loss of consciousness.
[18] Mr. Jacob’s blood alcohol level was 141 mm/100 ml. This level of alcohol was indicative of someone who was very intoxicated. Dr. Pickup testified that this blood alcohol level was not sufficient to cause death by alcohol poisoning by itself.
[19] It was Dr. Pickup’s opinion that it was the high level of ethanol (from alcoholic beverages) in Mr. Jacob’s blood together with the effects of the blunt facial trauma that possibly resulted in a loss of consciousness that prevented Mr. Jacob from seeking shelter from the cold. It was failing to seek shelter during freezing temperatures that resulted in his death by hypothermia.
[20] Dr. Pickup explained, on cross-examination, that someone who is impaired loses heat more quickly than someone who is not impaired and is less able to maintain their body temperature. He noted that the longer a person’s body is exposed to cold, their core temperature gradually lowers to the point of death by hypothermia.
[21] Dr. Pickup was unable to say definitively that the injuries sustained by Mr. Jacob together with alcohol intoxication caused Mr. Jacob to lose consciousness and therefore become unable to take shelter. He described alcohol concussion syndrome, being the combination of ethanol intoxication and the head injuries together as the basis for his conclusion that Mr. Jacob may have lost consciousness or was sufficiently injured or impaired so as to be unable to seek shelter. He confirmed that only someone present who had observed what happened could be completely certain as to whether Mr. Jacob had lost consciousness.
[22] In cross-examination, Dr. Pickup was questioned on the possible causes of the blunt facial trauma. He confirmed that he was not able to provide evidence as to what might have caused Mr. Jacob’s injuries. Counsel for Mr. Yellowhead took Dr. Pickup through a variety of possible scenarios that included Mr. Jacob falling and hitting his head, being hit by an object or someone’s fists. Dr. Pickup confirmed that he was not able to specify the object that caused the blunt facial trauma, except that in his experience the type of injury sustained by Mr. Jacob was due to an assault.
[23] Dr. Pickup did confirm that it was his opinion that the injuries to Mr. Jacob were all sustained at around the same time. He noted that there was no evidence of healing of any of the injuries that he examined and confirmed that the body’s process for healing stops when a person dies. He did not conduct testing to more definitively determine if some injuries were older than others because it was his opinion that the injuries were all consistent with recent injuries. He agreed that he could not state that the injuries had all arisen from the same event, only that they were all recent injuries.
Circumstantial Evidence Led by the Crown
[24] The Crown called several witnesses to support its position that it was Mr. Yellowhead who assaulted Mr. Jacob. Eight members of the TBPS testified together with four civilian witnesses. The witnesses from the police force described the investigative process and how they concluded that Mr. Yellowhead assaulted Mr. Jacob.
[25] Because the defence has argued that the TBPS investigation was inadequate, I have taken extra time to recount the investigation as follows (the witness who provided the evidence is set out in each point):
a) The investigation began when Mr. Jacob’s mother, Beverley Jacob reported him missing in the morning of December 6, 2018. She had last seen Mr. Jacob on the evening of December 5th and she believed that he was with Mr. Yellowhead and a young woman, Drema Beaver. (Detective Constable Andrew Johnstone, in 2018 was the Missing Persons Coordinator, now retired; “Johnstone”);
b) The investigation began as a missing person case but was elevated to a high priority missing persons case on December 7 because of Mr. Jacob’s age and the fact he was not from the Thunder Bay area (Johnstone);
c) On December 6th the police had information that Mr. Jacob had been with Mr. Yellowhead and a group of young people at the Victoria Inn. Johnstone interviewed Drema Beaver on December 6th and she confirmed that the last time she had seen Mr. Jacob was when they left the Victoria Inn shortly after 1:00 am on December 6. She informed the police that she had seen Mr. Jacob and Mr. Yellowhead leaving together and that they told her they were going to the Limbrick Complex (Johnstone);
d) On Saturday, December 8, 2018, the missing person report came to the attention of Detective Constable Christopher Toneguzzi in the Major Crimes Unit. He discussed the details with the Aboriginal Liaison Officer, Bob Simon and his Staff Sergeant Tracey Lewis. With his staff sergeant’s confirmation, the missing person case was turned into a major case which provided additional investigative resources. On December 8, the following steps were taken:
i) A team meeting held at approximately 11:00 am with Johnstone, Simon and other officers where a plan was established that included making a list of individuals to interview, that included Jonathan Yellowhead because he was identified as having been with Mr. Jacob. The team knew that Mr. Yellowhead had returned to Fort Hope (Toneguzzi);
ii) They sent messages via Facebook Messenger to reach out to individuals who knew Mr. Jacob and were able to confirm that the last time Mr. Jacob had last accessed his own Facebook account on December 5th;
iii) Video footage from the surveillance cameras in the Limbrick Complex was obtained and Detective Kevin Bradley, (“Bradley”) was assigned to review the footage for December 6 at midnight until December 7, 2018 (Toneguzzi);
iv) The video surveillance of the Limbrick Complex showed the following on December 6, 2018 (Bradley):
At 1:32 am Mr. Yellowhead and Mr. Jacob are observed interacting with two other (unidentified) individuals and observed at varying locations in the Limbrick Complex. Mr. Yellowhead is wearing a backpack;
At 1:40 am Mr. Yellowhead and Mr. Jacob together with a third person, identified as Dakota Yesno are seen walking toward Limbrick Street. They all appear to be staggering, particularly Mr. Jacob;
Mr. Yellowhead is seen again in the Limbrick Complex at approximately 4:28 am and at approximately 4:36 am is seen at the entrance Unit 46E and is still wearing the backpack;
At 5:46 pm, Norman Yellowhead, Jonathan Yellowhead’s father, is seen entering Unit 46E and leaving the unit with Mr. Yellowhead at 5:50 pm.
v) In addition to the video surveillance from the Limbrick Complex, Detective Craig Veneruz (“Veneruz”) obtained and viewed video surveillance footage from various locations that showed:
Mr. Yellowhead leaving the LCBO on Arthur Street at approximately 9:00 pm on December 5, 2018;
Mr. Yellowhead and Mr. Jacob running out of the Victoria Inn on Arthur Street on December 6 at approximately 1:00 am. Mr. Yellowhead is seen wearing a backpack;
On December 7, Mr. Yellowhead is seen at the Thunder Bay Airport at approximately 8:12 am; and again at 8:57 am is seen in another video at the Thunder Bay Airport in the company of another male, who was identified as Warren Nate. Mr. Yellowhead is then seen walking toward his flight to Fort Hope at 9:49 am.
vi) Also on December 8, Detective Constable Jeffrey Tackney (“Tackney”) was assigned to use a drone surveillance camera around the Limbrick Complex area in case Mr. Jacob could be located, but nothing was discovered.
vii) Toneguzzi and four other police officers went to Unit 46E at approximately 4:50 pm on December 8. The tenant of that unit, Craig Wabano let the officers into the unit to look around. There were two other individuals in the unit with Mr. Wabano (“Wabano”) at that time, one of them was Dakota Yesno (“Yesno”) who had been seen in earlier surveillance footage of the Limbrick Complex with Mr. Yellowhead and Mr. Jacob.
viii) While in Unit 46E, the officers noted a number of areas in the unit that appeared to be blood-like substances, and they then treated the unit as a possible crime scene (Toneguzzi);
ix) Tackney then attended Unit 46E and took swabs of the areas that appeared to have blood-like substances. The samples were sent to the forensic science lab in Sault Ste. Marie for analysis.
x) All those who were in the residence at Unit 46E when the police arrived were taken to the police station to be interviewed. Wabano testified in this trial and confirmed that Mr. Yellowhead had come to his unit during the night of December 6 looking for a place to stay. Wabano stated that he and those who were in his residence had been binge drinking for a few days and he could not provide much additional evidence, except that he let Mr. Yellowhead into his unit and directed Mr. Yellowhead to sleep in the basement. Later that same day Norman Yellowhead came and collected Mr. Yellowhead.
xi) Wabano also testified that a few days prior to this period of drinking he had cleaned the unit including washing the walls. He indicated he did these things because when drinking there was often some damage to the unit, so he would then clean the unit. Wabano could not provide specifics about how long this particular drinking binge went on but noted that various individuals came and went during that period. He thought it might have lasted a few days to a week.
xii) Wabano did not know who Braiden Jacob was. It was his evidence that Mr. Jacob was never in his residence.
xiii) Wabano cooperated with the police and permitted them to take samples (swabs) of the areas where there were blood-like substances. Tackney was brought to the unit at approximately 10:20 pm on December 8 to obtain these samples and send them to the forensic science lab in Sault Ste. Marie for DNA analysis (Tackney).
xiv) Bradley, who was viewing the Limbrick Complex surveillance videos during this period, notified Toneguzzi that Mr. Yellowhead had arrived at Unit 46E wearing a backpack but when he left with Norman Yellowhead, he did not have the backpack. A backpack that matched the one worn by Mr. Yellowhead was found in Unit 46E and Wabano informed the police that it did not belong to him.
xv) A blood-like substance was found on that backpack. A swab of that area was taken and sent for DNA testing.
e) While the investigation was ongoing on December 8 in Thunder Bay, Mr. Yellowhead was interviewed by the Nishnawbe Aski Nation (NAN) police in Fort Hope. A video copy of that interview was played at trial. Mr. Yellowhead confirmed the events leading up to his eviction from the Victoria Inn due to a window being broken. He also confirmed that Mr. Jacob and he left together.
f) Mr. Yellowhead stated that when Mr. Jacob and he left the Victoria Inn, they were running through various properties and jumping over fences, heading towards the Limbrick Complex. Mr. Yellowhead stated that they parted ways once they arrived at the Limbrick Complex and that he then stayed with an acquaintance, Wabano, at Unit 46 and was then picked up on the evening of December 6 by his father, Norman Yellowhead.
g) Norman Yellowhead testified for the defence. He confirmed that he picked up his son, Jonathan Yellowhead from Unit 46E in the Limbrick Complex. He stated that he was also looking for Braiden Jacob because he had heard that Mr. Jacob may have been with his son, and they were both missing. He found Mr. Yellowhead and was told that Mr. Jacob had not been at the unit. Norman Yellowhead testified that he checked Mr. Yellowhead’s hands and knuckles and looked him over to see if he had any injuries because he had been told there had been an incident of a broken window at the Victoria Inn. He did not find any injuries.
h) The investigation team met next on the morning of December 9. At this time specific roles were assigned. The usual process for a major crime investigation is to have three officers assigned as the leads. Detective Kenneth Biloski was assigned as the Case Manager, in charge of the investigation. Johnstone was assigned as the Primary Investigator and Toneguzzi was assigned the role of File Coordinator. Inspector Hughes, the overall lead of the major crimes branch, Lewis and various others participated in this team meeting on December 9. It was at this meeting that they discussed the evidence that had been reviewed and they were brainstorming regarding how to continue the investigation. (Toneguzzi)
i) During this session the names of Warren Nate and Randall Oskineegish came up as as known associates of Mr. Yellowhead. The goal was to learn what had occurred between the Limbrick Complex surveillance from 1:41 am on December 6 when Mr. Jacob was last seen with Mr. Yellowhead and 4:36 am when Mr. Yellowhead was seen at the entrance of Unit 46E.
j) During the course of this team meeting on December 9, they were advised that a body had been discovered in Chapples Park. The body was believed to be that of Mr. Jacob (later confirmed).
[26] Benjamin Belluz had come upon the body of Mr. Jacob while walking his dog at approximately 11:00 am on December 9, 2018. Mr. Belluz testified that he departed from the walking path and cut through a green space area of Chapples Park that was not a walking path, in order to avoid having an interaction with another dog walker (Mr. Belluz’s dog being young and excitable). Mr. Belluz saw the body in an open area from the top of a small hill or berm. Mr. Belluz called 911 and the police arrived and secured the scene.
[27] The evidence taken from the area where Mr. Jacob’s body was found was as follows:
a) Mr. Jacob was lying on his side with his pants around his knees. He was wearing grey long-underwear. (Constable Jeffrey Elvish – “Elvish”)
b) There appeared to be a trail of blood in the area where Mr. Jacob was discovered. (Elvish)
c) It was a cloudy and cool December day,just below freezing and there was not a lot of snow. The body was located in an open area behind a berm. (Elvish)
d) Detective Constable Patrick Wilson (“Wilson”) from the Forensic Identification Unit was brought in to process the scene. He arrived at approximately 12:22 pm and began by conducting drone video surveillance of the area. He noted that the clothing worn by the deceased matched the description of the clothing Mr. Jacob had been wearing when he was last seen. It was also noted that Mr. Jacob’s shoes were missing. Both shoes were found in different locations, each about 10 or 15 feet from his body. In an examination of the area a hotel key card was located that was later determined to be for the room at the Victoria Inn in Mr. Yellowhead’s name. In addition, white earbud headphones were located.
e) The body was determined to be that of Braiden Jacob. (Toneguzzi)
[28] Over the next several days the major crimes unit team met to continue their investigation. The investigation team were of the view that Mr. Jacob had been murdered and they were considering possible suspects as well as eliminating others. (Toneguzzi)
[29] It was during this period (December 10 – 11, 2018) that the team began looking into the whereabouts of Nate and Oskineegish from December 5 through the 6th. Nate had responded to the Facebook Messenger canvass. Nate was arrested and questioned but did not provide any information regarding the events of December 5 and 6, 2018.
[30] Drema Beaver and Wilda Sakanee also testified during the trial. Ms. Beaver was 16 in December 2018. They had both been at the Victoria Inn in Mr. Yellowhead’s room on the night of December 5 until they were evicted in the early hours of December 6, 2018. They both testified that they had consumed a large amount of alcohol and were intoxicated. Ms. Beaver described her level of intoxication as about a 9 out of 10. Ms. Sakanee had consumed so much alcohol that after leaving the Victoria Inn, she blacked out and began having convulsions that resulted in her being hospitalized.
[31] Drema’s evidence was that she had met Mr. Jacob via Facebook and they first met in person on December 4. Mr. Jacob was staying at the Victoria Inn. It was Drema who brought Mr. Jacob to Mr. Yellowhead’s room on December 5. She had only known Mr. Yellowhead through Facebook. The gathering in Mr. Yellowhead’s room on December 5 was the first time she had met him in person. Ms. Beaver stated that:
a) During the time that they were in Mr. Yellowhead’s room, Mr. Yellowhead and Mr. Jacob appeared to be getting along and calling each other “bro”.
b) She last saw Mr. Jacob when they were evicted from the Victoria Inn. He was with Mr. Yellowhead, and they told her they were going to Limbrick.
c) She called for a ride home and at some point during the night of December 6 she telephoned Oskineegish. Ms. Beaver testified that they were not in a relationship on December 6, 2018. She could not recall what she said to Mr. Oskineegish in that telephone call, however, she had told him that she was at the Victoria Inn to see Mr. Jacob.
d) Ms. Beaver agreed when cross-examined that she knew that Oskineegish had an anger problem and liked to fight. She denied that he was jealous of her seeing other people because they were no longer a couple. She described Oskineegish as being sad about the end of their relationship.
[32] Wilda Sakanee testified that while in the Victoria Inn in Mr. Yellowhead’s room she overheard Mr. Yellowhead telling others that he wanted to beat up Mr. Jacob. She also testified that when they left the Victoria Inn after being evicted, that she observed Mr. Yellowhead and Mr. Jacob walking together. She stated that she was concerned that something bad might happen to Mr. Jacob, however, she was unable to stop Mr. Jacob from going with Mr. Yellowhead because she blacked out and later woke up in the hospital due to the amount of alcohol she consumed.
[33] Ms. Sakanee was interviewed by the police in the hospital and told them that she was concerned for Mr. Jacob and that she thought he might be hiding from his family because he did not want to return to his home in Summer Beaver. Ms. Sakanee also testified that she did not trust individuals who were from Fort Hope and acknowledged that she knew Mr. Yellowhead was from Fort Hope.
[34] Johnstone had received a verbal report from Dr. Pickup after the autopsy had been completed on December 13, 2018 and from that prepared a case file synopsis in which he noted that the cause of death was ruled a homicide and that Mr. Jacob had died from “blunt force trauma to face with alcohol and hypothermia”.
[35] On December 14, Johnstone, Detective Biloski and two others traveled to Fort Hope where they arrested Mr. Yellowhead and charged him with the murder of Braiden Jacob.
Forensic DNA Analysis
[36] Ronald Lai, a Forensic Scientist with the Centre of Forensic Sciences in Sault Ste. Marie, Ontario testified regarding his findings from DNA analysis of the samples of blood that were taken from various locations in Unit 46E in the Limbrick Complex, the backpack that was identified as the one worn by Mr. Yellowhead in the surveillance videos and seized from Unit 46E, as well as analysis of the earbuds found near Mr. Jacob’s body and DNA results taken from Mr. Jacob’s fingernails. His findings were not contested.
[37] Mr. Lai testified that DNA analysis of the blood samples taken from the backpack and from the doorframe at the entrance to Unit 46E matched the DNA profile of Mr. Jacob and that he concluded based upon his analysis that the blood had come from Mr. Jacob.
[38] Mr. Lai also testified that his DNA analysis of the earbuds found near Mr. Jacob’s body and the results of DNA analysis of Mr. Jacob’s fingernail clippings included DNA from Mr. Jacob and also from Mr. Yellowhead. On cross-examination, Mr. Lai agreed that he could not provide evidence of how Mr. Yellowhead’s DNA came to be on the earbuds or under Mr. Jacob’s fingernails. He confirmed that DNA transfer could occur from sharing earbuds with others and that DNA could be transferred to someone’s hands and fingernails through shaking hands or other physical contact, however, that contact would have needed to be fairly close in time to Mr. Jacob’s death.
Alternate Suspect Evidence
[39] Prior to trial, counsel for Mr. Yellowhead brought a motion to introduce alternate suspect evidence. This motion was granted with the consent of the Crown. The alternate suspects advanced by the defence were Warren Nate (“Nate”) and Randall Oskineegish (“Oskineegish”).
[40] In the first days after Mr. Jacob’s disappearance, the police believed that Mr. Yellowhead was one of three suspects. The others included Nate and Oskineegish. The police had information that Oskineegish was staying at the Holiday Inn Motel on Kingsway Avenue off Arthur Street in Thunder Bay.
[41] The evidence regarding these individuals as it related to the interaction with, and death of Mr. Jacob was as follows:
a) During the team meetings on December 9, 2018, the investigative team had received information that there may have been others who had ties to Mr. Yellowhead and who may have been with Mr. Jacob. These individuals were Warren Nate and Randall Oskineegish. A plan was made to contact and interview them. This plan was put on hold that day because of the discovery of the body of Mr. Jacob on December 9; however, the video surveillance from the area around the Holiday Inn Motel was secured and reviewed (Toneguzzi).
b) On December 11, Bradley viewed video surveillance from both the Kingsway and Holiday Inns on Kingsway Avenue, from December 5 and 6, 2018. The video footage showed Nate and Oskineegish walking southbound on Kingsway on December 5 at 10:36 pm and enter what was the Holiday Inn at that time.
c) There were no observations of either Nate or Oskineegish on video exiting the Holiday Inn on December 6 (“Bradley”).
d) The police were not able to link Nate or Oskineegish to either the Limbrick Complex on the morning of December 6 or to the Chapples Park area. (Toneguzzi)
e) Nate was arrested at the airport in Thunder Bay on either December 7 or 8th before he was able to leave the city and placed in the custody of NAN Police. He was later interviewed by Johnstone. No charges were laid against him.
f) Oskineegish was interviewed on May 3, 2019, by Johnstone. A video recording of that interview was played at trial. Much of the video evidence of Oskineegish was inadmissible and thus not recounted in this summary of evidence.
g) In his interview on May 3, 2019, Oskineegish denied that Drema Beaver was his girlfriend, but acknowledged that they had known each other for many years. He stated that Nate and he had left the Victoria Inn earlier on December 5 and went to the Holiday Inn Motel where they stayed the night with other members of his family. He recalled that Ms. Beaver had called him during the night of December 6 and was upset. Oskineegish denied having any involvement in Mr. Jacob’s disappearance or death.
h) Mr. Oskineegish committed suicide on December 25, 2019. A journal was discovered with his body. It was agreed that the journal was written by Oskineegish and in one part of the journal Oskineegish wrote that “I am a killer, don’t push me, I killed your boyfriend and I’m not sorry”.
[42] The defence submitted that Oskineegish was writing this to Ms. Beaver about having killed Mr. Jacob, her boyfriend. Ms. Beaver disagreed with this assessment when cross-examined by defence counsel. She agreed that she had been involved with Oskineegish in the past, but they had not been together as a couple in December 2018. This evidence corresponded with the video interview of Oskineegish in May 2019 in which he stated he was dating someone else in December 2018, not Ms. Beaver.
Failure by the Police to Conduct a Complete Investigation
[43] Counsel for Mr. Yellowhead also advanced the theory that the TBPS was under pressure to conclude this investigation quickly because of ongoing negative press of the police service in the investigation of the deaths of Aboriginal youth in the Thunder Bay area. The Court took judicial notice of this fact, including that there were ongoing investigations by the Office of the Independent Police Review Director (OIPRD) whose report was released on December 12, 2018 and was highly critical of the TBPS.
[44] When cross-examined on these issues, none of the officers agreed with counsel for Mr. Yellowhead that they had rushed to a conclusion in this investigation or that they failed to consider legitimate alternate suspects.
[45] The defence called Detective Kenneth Biloski, the lead investigator in this case. In addition to describing his role in the investigation, he was asked about a possible sighting of Mr. Jacob by a civilian witness on December 8, 2018. A gentleman attended the police station where he advised Biloski that he may have seen someone matching the description of Mr. Jacob at the Canada Games Complex on December 8, 2018. That individual was unable to describe the clothing worn by the person he saw, nor was he certain that the person he saw was Mr. Jacob.
[46] Biloski testified that someone from the TBPS followed up with the Canada Games Complex a few weeks later but that by that time the video footage was no longer available.
Law and Analysis
[47] To establish the offence of manslaughter, the Crown must prove beyond a reasonable doubt that Mr. Yellowhead caused the death of Mr. Jacob. The evidence in this case was largely circumstantial with respect to whether it was Mr. Yellowhead who caused the blunt force facial injuries to Mr. Jacob as described by Dr. Pickup.
[48] If I find that the Crown has proved that Mr. Yellowhead is the person who caused the injuries to Mr. Jacob, the Crown must then establish that the injuries sustained by Mr. Jacob were a substantial contributing cause of his death and that Mr. Yellowhead had “an objective foreseeability of the risk of bodily harm which is neither trivial nor transitory in the context of a dangerous act.” (R. v. Dhillon, 2019 ONCA 159 at para 14).
[49] Counsel for Mr. Yellowhead has submitted that the police investigation into Mr. Jacob’s death was insufficient. He argued that there is evidence of alternate suspects that the police neglected to consider and instead rushed to a conclusion that it was Mr. Yellowhead who caused the death of Mr. Jacob.
[50] There is no onus on the defence to prove any facts in support of his theory that it was not Mr. Yellowhead who committed the offence of manslaughter. However, by raising these alternate theories, the Court must consider whether there are reasonable inferences, other than guilt, and if I find that there are, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt. (R. v. Villaroman, 2016 SCC 33, para 35.)
Considering Circumstantial Evidence
[51] The Supreme Court of Canada in Villaroman has provided guidance on how to assess circumstantial evidence when considering whether the Crown has proven its case beyond a reasonable doubt. (paras 38 - 43):
Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.
I have found two particularly useful statements of this principle.
The first is from an old Australian case, Martin v. Osborne (1936), 55 C.L.R. 367 (H.C.), at p. 375:
In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. [Emphasis added.]
While this language is not appropriate for a jury instruction, I find the idea expressed in this passage - that to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative - a helpful way of describing the line between plausible theories and speculation.
The second is from R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138, at paras. 22 and 24-25. The court stated that “[c]ircumstantial evidence does not have to totally exclude other conceivable inferences”; that the trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible.
Where the line is to be drawn between speculation and reasonable inferences in a particular case cannot be described with greater clarity than it is in these passages.
[52] I have set out the evidence in significant detail. From reviewing that evidence, I do not find the defence theory that the police were influenced by the negative press or the fact of an OIPRD investigation has merit. The evidence supports the facts proposed by the Crown that the police put significant resources into finding Mr. Jacob. When he was not found within 24 hours of having been reported missing, a press release was issued and a day later, in the morning of December 8th, the case changed from a missing person case to a major crime case. The result of this change was that the TBPS dedicated significant resources to trying to locate Mr. Jacob and to tracking his last known movements.
[53] That evidence is not in dispute. Nor is the evidence that the last known sighting of Mr. Jacob alive was from the video surveillance cameras at the Limbrick Complex. The police had this evidence in their hands on December 8. They knew to obtain the video surveillance because of information they had received from Ms. Beaver and Ms. Sakanee, both of whom had been with Mr. Jacob and Mr. Yellowhead on the evening of December 5 until they were all evicted from the Victoria Inn in the early morning of December 6.
[54] Notwithstanding that both Ms. Beaver and Ms. Sakanee were admittedly very impaired, it was their statements to the police that they had seen Mr. Jacob and Mr. Yellowhead leave the hotel in each other’s company and that they were planning on going to the Limbrick Complex that led the police to review the video surveillance and confirm that they had indeed gone to the Limbrick Complex. Their evidence at trial regarding this was not shaken.
[55] Similarly, the police from the outset, considered that there may have been more individuals involved in the disappearance, and later the death of Mr. Jacob. TBPS’s consideration of other suspects did give credence to defence counsel’s alternate suspect application
[56] The defence has also argued that the police did not sufficiently follow up on the possibility that Mr. Jacob was alive on December 6 and 7th. He pointed to the fact that Detective Biloski had received information that a civilian may have seen someone matching Mr. Jacob’s description at the Canada Games Complex in the early afternoon of December 8. The statement taken by Detective Biloski was that the individual was not certain it was Mr. Jacob and could not describe what the person he saw was wearing, but that it could have been Mr. Jacob. By the time the police followed up on this evidence any video surveillance from the Canada Games Complex for December 8 was no longer available.
[57] Similarly, the defence pointed out the fact that it was questionable whether Mr. Jacob’s body had lain undiscovered from the night of December 6 until the morning of December 9, 2018, in Chapples Park – a popular spot for people to walk their dogs, ride “fat” bikes and cross-country ski in the winter.
[58] The evidence was that Mr. Jacob’s body was discovered in an area closer to the parking lot and behind a berm. There was a chain across the parking lot that prevented cars from parking in that area. Mr. Belluz, who found the body, testified that the body was located in a spot where he did not typically walk; that he deviated from the walking path because he was trying to avoid an interaction with another dog walker. He stated that he would not have been able to see the body until he walked partly up the rise or berm.
[59] The evidence at trial included the drone videos taken by Detective Constable Patrick Wilson and from those who attended the scene. This evidence demonstrated that while Mr. Jacob’s body was found in an open area, it was located behind a berm and would not have been readily visible to someone walking, biking or skiing nearby unless, like Mr. Belluz, they specifically walked away from the pathway and began to climb the berm behind which Mr. Jacob was found.
[60] In considering this evidence, together with the other evidence that I accept, it is a reasonable conclusion that Mr. Jacob’s body had been in that location since the night of December 6.
[61] The defence also alleged that the police failed to adequately investigate the possibility of third parties who might have committed the assault on Mr. Jacob. He pointed to the two individuals, Warren Nate and Randall Oskineegish. Counsel for the defence specifically focused on Mr. Oskineegish, whom he alleged had an opportunity and motive to commit the offence.
[62] In support of this theory, the defence argued that Mr. Oskineegish was romantically involved with Drema Beaver in December 2018 and that he was jealous of her beginning a relationship with Mr. Jacob. When Mr. Oskineegish committed suicide on December 25, 2019, a journal was found next to his body. In that journal, Mr. Oskineegish had written that “I am a killer, don’t push me, I killed your boyfriend and I’m not sorry”. It was the defence theory that Mr. Oskineegish was admitting that he killed Mr. Jacob; Ms. Beaver’s boyfriend.
[63] It was also the defence position that the police failed to adequately investigate the role Mr. Oskineegish may have had in Mr. Jacob’s death.
[64] The defence theories do not stand up to scrutiny. The TBPS at the outset believed that there may have been more than one person involved in the disappearance and later the death of Mr. Jacob. They specifically considered whether Mr. Nate or Mr. Oskineegish might have been involved because they were known to have an association with Mr. Yellowhead.
[65] The police followed up these inquiries by obtaining video surveillance that showed Mr. Nate and Mr. Oskineegish entering the Holiday Inn Motel prior to the last time Mr. Jacob was seen alive. They could not find any evidence to suggest that they had left the Holiday Inn during the night of December 6.
[66] The police interviewed them both and dismissed them as possible suspects because they had no evidence to link them to Mr. Jacob’s death. Both Ms. Beaver and Mr. Oskineegish, in his video interview with the police, stated that they were not seeing each other in December 2018; they were not “girlfriend and boyfriend” at that time. In fact, Mr. Oskineegish claimed that he and Ms. Beaver had known each other since they were children but had never been a couple. Mr. Oskineegish also claimed that he was no longer associated with Mr. Yellowhead and had broken away from his association with Mr. Yellowhead months before December 2018.
[67] Both Ms. Beaver and Mr. Oskineegish confirmed that Ms. Beaver had called him when she returned to her residence on the night of December 6. Neither could recall the exact time, however, Ms. Beaver thought it was shortly after she returned to her residence. In cross-examination she agreed with defence counsel that she had told Mr. Oskineegish about being evicted from the Victoria Inn and that she had been there with a group of young people, including Mr. Yellowhead and Mr. Jacob. She also agreed that she had told Mr. Oskineegish that Mr. Jacob and Mr. Yellowhead had left together and were going to the Limbrick Complex.
[68] There was no evidence that indicated Mr. Oskineegish left the Holiday Inn Motel or was at the Limbrick Complex on the night of December 6. I find that the evidence of an alternate suspect is speculative and not reasonable on the evidence before me. Nor do I find that the police failed to adequately investigate the possibility of alternate suspects. The opposite is true. The police considered alternate suspects from the outset and then expended significant time and resources to ascertain if those suspects were involved.
[69] I find that the evidence adduced at trial, while largely circumstantial, “assessed in light of human experience”, excludes any other reasonable alternative than that Mr. Yellowhead assaulted Mr. Jacob. (Villaroman at para 41).
[70] Mr. Jacob and Mr. Yellowhead are seen together in video footage from the Limbrick Complex at 1:41am on December 6. There were no other credible sightings of Mr. Jacob after that. A few hours later, at approximately 4:30 am, Mr. Yellowhead is seen returning to Unit 46E in the Limbrick Complex. Mr. Wabano and Norman Yellowhead confirmed that Mr. Yellowhead was in that unit. In his statement to police, Mr. Yellowhead also confirmed that he spent the night in Unit 46E.
[71] Mr. Jacob’s blood is found on the outer doorframe of Unit 46E and on Mr. Yellowhead’s backpack. The defence theory that the blood may have been deposited because Mr. Jacob may have cut or scraped himself while running away from the Victoria Inn is merely speculative and not credible. The video surveillance does not disclose any injuries to Mr. Jacob when he is last seen alive. Mr. Jacob is wearing winter clothing. The only reasonable theory is that Mr. Yellowhead had Mr. Jacob’s blood on his person and backpack as a result of assaulting Mr. Jacob in his head and face. Mr. Yellowhead then transferred this blood onto the doorframe at Unit 46E. It is also a reasonable conclusion that Mr. Jacob’s blood was deposited on Mr. Yellowhead’s backpack during the assault.
[72] The fact that Mr. Yellowhead’s hotel key was found by the body of Mr. Jacob is also supportive of it being Mr. Yellowhead who committed the assault. Evidence that Mr. Yellowhead had provided a room key to someone else who was present that night does not detract from the strength of the evidence of Mr. Yellowhead’s key card being found at the scene. There was no evidence that anyone else present at the party, who may have been provided a key to Mr. Yellowhead’s room, was involved in the death of Mr. Jacob. Nor was there evidence that Mr. Yellowhead may have provided a key card to Mr. Jacob. Mr. Yellowhead and Mr. Jacob had not met before the night of December 5. The only reasonable inference is that it was Mr. Yellowhead who dropped his key card near Mr. Jacob’s body sometime during the assault.
[73] Norman Yellowhead testified that he checked for any injury to Mr. Yellowhead’s hands or knuckles and found nothing. When arrested, there was no evidence of recent injury to Mr. Yellowhead’s hands. I do not find that this evidence is sufficient to exclude Mr. Yellowhead as the perpetrator of the assault on Mr. Jacob. Dr. Pickup’s evidence was that it was blunt force trauma that caused Mr. Jacob’s injuries. He could not confirm if that was a result of a blow from a fist or an object. Mr. Yellowhead is seen with gloves in at least one or more of the video surveillance photos.
[74] There was other evidence that supported the Crown’s position that it was Mr. Yellowhead who assaulted Mr. Jacob that resulted in his death. That evidence on its own would not have been sufficient for the Court to arrive at a verdict of guilt. However, it does enhance the evidence that I have accepted. In brief, that evidence consists of the statements by both Ms. Beaver and Ms. Sakanee regarding their interactions with Mr. Yellowhead and Mr. Jacob on the night of December 5 and 6th.
[75] The evidence of Mr. Jacob’s and Mr. Yellowhead’s DNA on the earbuds found near Mr. Jacob’s body is of little value to my analysis. Similarly, the evidence of Mr. Yellowhead’s DNA found under Mr. Jacob’s fingernails is of limited value. This is because of the known interactions between them over the course of that evening and the fact that the experts testified that they could not confirm when that DNA might have been transferred.
[76] In summary, I find that the circumstantial evidence, assessed in light of human experience, excludes any other reasonable alternative to that of Mr. Yellowhead being the person who caused the blunt force facial trauma to Mr. Jacob. I do not find the alternate theories to be sufficient to raise a reasonable doubt as to Mr. Yellowhead being the person who inflicted the blunt force facial trauma on Mr. Jacob.
Was the Assault on Mr. Jacob a Substantial Contributing Factor In His Death?
[77] The finding of the post-mortem examination by Dr. Pickup was that Mr. Jacob died as a result of “hypothermia, in a man with blunt facial trauma, and ethanol intoxication”. Dr. Pickup speculated that Mr. Jacob may have been rendered unconscious because of the combination of the assault and the level of his intoxication. He confirmed that he could not state this with certainty because only someone who had been present would know this. Dr. Pickup testified that but for the intoxication and the injures from the assault, Mr. Jacob would not have died had he sought shelter from the freezing temperatures.
[78] There is no obligation on the Crown to prove the medical cause of death to establish causation. It is enough if I find that the assault was a substantial contributing cause of Mr. Jacob’s death (R. v. Dhillon, 2019 ONCA 159 at para 11).
[79] Counsel for the defence argued that the assault on Mr. Jacob was not a substantial cause of his death and therefore Mr. Yellowhead should not be found guilty of manslaughter. I disagree.
[80] While it is impossible to know if Mr. Jacob was rendered unconscious from the assault, I find that Mr. Yellowhead had an objective foreseeability of the risk of bodily harm to Mr. Jacob in the context of what was a violent assault. It was objectively foreseeable that due to the level of Mr. Jacob’s intoxication together with the freezing temperatures in Thunder Bay in early December, that there was a significant risk of non-trivial harm to Mr. Jacob after an assault that caused substantial injury to Mr. Jacob.
[81] I find that it was Mr. Yellowhead who caused the blunt force facial trauma to Mr. Jacob and that the Crown has proven that these injuries were a substantial contributing cause to Mr. Jacob’s death.
[82] I therefore find Mr. Yellowhead guilty of manslaughter in the death of Braiden Jacob contrary to s. 236 of the Criminal Code.
The Honourable Regional Senior Justice B. Warkentin
Released: August 12, 2022
COURT FILE NO.: CR-19-0181-00
DATE: 2022-08-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and –
Jonathan Yellowhead
Accused
REASONS FOR JUDGMENT
B. Warkentin R.S.J.
Released: August 12, 2022