NWT Court of Appeal makes history with first virtual sitting

It was the first-ever virtual sitting of the NWT Court of Appeal. As with most online video meetings, Tuesday’s historic event was not without its share of technical glitches.

The territory’s highest court normally meets in person in Yellowknife, with all parties in the room an in front of a public gallery.

However, under public health constraints to deal with the threat of Covid-19, Calgary Justice JDB McDonald, Iqaluit Justice Susan Cooper, and Edmonton Justice Dawn Pentelechuk clicked into a Yellowknife courthouse with only a clerk, a sheriff, and a couple members of the media in the room.

The lawyers and prisoners also called in via video from various locales.

The two separate appeals being heard were from Denecho Noel Calvin King, serving a life sentence with no chance of parole for 12 years for murder and attempted murder, and Kirk Mantla, serving a six-month jail sentence after a judge rejected a joint submission that included house arrest.

While most of the morning and afternoon sessions proceeded smoothly, there were some glitches.

“Before we go any further, I don’t see you,” said McDonald in the morning, as Crown prosecutor Blair McPherson prepared to make his oral argument.

“Is there some problem? We can certainly hear you, but none of us can see you, Mr McPherson.”

The courtroom speakers then emitted a blast of echoing feedback as an attempted fix was made.

Pentelechuk then had another issue.

“Is there any way to see Mr McPherson as the dominant speaker? He’s only in a little box,” she asked.

“Justice Cooper, can you hear me?” asked Pentelechuk. “Justice Cooper is dealing with a frozen screen. She’s advised by email that she can’t hear and her screen is frozen. Mister clerk, is there something you can do?”

King lodges appeal

As things eventually got back on track, King’s lawyer – Alan Regel, speaking in court robes as he stood at a lectern in his Sherwood Park, Alberta office – argued evidence at King’s trial had been given improper weight by the judge.

The evidence in question regards King being in an agitated state prior to going to Yellowknife’s Sunridge Apartments, where he encountered John Wifladt and Colin Digness.

Court documents show that in the early morning of December 14, 2014, police were notified of two badly injured men at the Sunridge Apartments. They arrived at Unit 323 to find Wifladt and Digness on the floor. Neither one was fully conscious or responsive.

There was a significant amount of blood on both men and the surrounding area. Two bloodied ornamental swords – which belonged to Digness – were found near the men.

Digness had suffered trauma to his head and was bleeding from his abdomen, but was still alive. His childhood friend, Wifladt, died from blood loss after two stab wounds to his upper left back. 

Digness was sent by air ambulance to Edmonton, where he remained for a number of weeks. His injuries potentially permanently affected his vision, cognitive function, and digestive system. Due to his injuries and possibly his level of intoxication, Digness has no memory of what occurred in the apartment, where he lived with his teenage son, who wasn’t home on the night King came over.

After an extensive investigation, in May 2015 police charged King with murder and attempted murder. His judge-alone trial took place in April 2018 and the 25-year old was sentenced that November.

‘Not minor errors’

In addition to concerns with King’s “highly prejudicial” character evidence allowed at trial, Regel also disputed evidence showing King’s DNA on the handles of the swords. He presented alternate theories regarding how his client’s DNA could have ended up on the weapons.

At this point, King’s video feed from the Edmonton Institution maximum-security prison went black.

“Mr King, are you still with us?” asked Justice McDonald. “I can hear you, can you hear me? Can you hear your counsel?”

“Yes,” replied King.

“All right then, I guess we’ll continue on,” said McDonald.

Regel also questioned the “honestly and reliability” of a witness who testified that King stated “I killed two people” later that night at the Northern Lites Motel. 

“They are not minor errors … and they are inter-related errors,” said Regel. “My submission is that even if the errors themselves would not justify setting aside the verdict, certainly the totality of the errors would justify setting aside the verdict.”

Prosecutor McPherson argued that Justice Andrew Mahar’s verdict was justified as King had the opportunity to commit the crimes, was caught on video at the Northern Lites Motel apparently re-enacting the sword attacks, was heard confessing to the offences by a witness, and his DNA was on the handles of the weapons.

“[King] had never been to the apartment before, he didn’t know the two men,” said McPherson. “It’s compelling evidence … how else do you explain the DNA?”

Mantla appeal over sentence decision

In the afternoon, the appeal court panel heard an appeal from Kirk Mantla, who pleaded guilty in the middle of his January 2018 trial for assault causing bodily harm.

He did so with the understanding the Crown would recommend a conditional sentence, meaning he would serve his sentence in the community under house arrest as opposed to inside a jail cell.

Court documents show that on August 18, 2017 at about 5am, Guy Tlokka and two other people were “hanging out” in Behchokǫ̀ and had been drinking.

Kirk Mantla and two of his friends walked by. Tlokka picked up a steel bar and as Mantla – who was intoxicated and on probation – was walking away, he started yelling at him.

Tlokka, 20, called Mantla, 30, a “crackhead.” Mantla believed Tlokka was going to hit him with the steel bar, so he picked up a piece of wood and hit Tlokka in the back, causing him to fall down and hit his head.

After Tlokka had fallen, Mantla kicked him in the face and walked away. At least one of Tlokka’s teeth was knocked out and others were broken. 

Crown and defence counsel suggested Territorial Court Judge Bernadette Schmaltz impose a six-month conditional sentence, followed by one-year probation.

“I disagree that a conditional sentence would be proportionate, or could address the sentencing objectives of denunciation or deterrence,” stated Schmaltz in her March 2, 2018 decision, noting Mantla had a criminal record with 17 convictions, six for violent crimes.

“This sentencing is not just about Kirk Mantla, it is about the community of Behchokǫ̀, the harm done to Guy Tlokka, deterrence, denunciation, and other goals and objectives of sentencing that cannot be ignored.

“The people of Behchokǫ̀ deserve to live in a just, peaceful, and safe community,” stated Schmaltz. “They deserve to have confidence in the justice system, and know that the courts will give consideration to the objectives of deterrence and denunciation to crimes committed in their community.”

She sentenced Mantla to six months in jail, followed by two years’ probation.

In May 2019, Supreme Court Justice Shannon Smallwood upheld the lower court’s decision and dismissed Mantla’s sentence and conviction appeal.

On Tuesday afternoon, defence lawyer Ryan Clements argued the Crown “didn’t want to continue with the prosecution” of Mantla at his trial as “things were turning in Mantla’s favour.”

His position was that Judge Schmaltz shouldn’t have interfered with the joint sentencing recommendation as a Supreme Court of Canada decision in 2016 restricts a judge’s ability to reject such a submission.

Mantla is halfway through his jail sentence, said Clements.

The appeal court panel reserved their decisions in both cases.