Iqaluit (Oct 18/04) - Justice Earl Johnson has found a young offender -- who repeatedly kicked a man in the head -- guilty of second-degree murder.

The 20-year-old stood with his hands clasped in front of the judge for most of the Oct. 12 hearing. He was two months shy of his 18th birthday when the crime was committed, and therefore cannot be identified under the Young Offenders Act.

As he left the courtroom, the accused's eyes began to fill with tears after embracing one of the gallery's 12 onlookers.

On the evening of July 13, 2002, after some heavy drinking with friends, the young man viciously kicked Davidee Nowdlak, 47, while he lay unconscious on the ground.

Nowdlak was transported to Ottawa Civic hospital shortly after the incident. He died Aug. 6, a few days after returning to Iqaluit following treatment.

Defense attorney Michael Chandler argued that if Nowdlak's family had made "more aggressive" treatment decisions upon his return to Iqaluit, he may still be alive today.

But Crown attorney Michael Jones argued that under section 225 of the Criminal Code, any person who causes a bodily injury of a dangerous nature which results in death, causes the death, as long as their medical treatment is applied in good faith.

An autopsy report deemed the cause of death to be pneumonia brought on by cranial trauma suffered as a result of the original head injuries.

"There is no doubt in my mind that the actions of the accused were a significant cause of the death of the victim," wrote Johnson in his final decision.

The defense also argued the young man was too intoxicated to have known what he was doing.

Varying alcohol consumption estimates were deemed to be unreliable by Johnson, who instead made use of eyewitness accounts of the accused's actions when making his decision.

Witness Jerry Papatsie testified that Nowdlak was hit first in the face, then fell backwards and didn't move. The accused then began kicking Nowdlak in the face and became upset when he thought someone on a cell phone was calling the police, Johnson said.

"His emotions were no doubt influenced by the alcohol, but his mind was working," Johnson told the court, pointing to the repeated kicking of Nowdlak's head.

The Crown had earlier petitioned to have the accused tried as an adult, but that application was denied.

A sentencing hearing has been set for Nov. 3 at 9:30 a.m.