R. v. Barnabas, 2014 NUCJ 06

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. Barnabas, 2014 NUCJ 06 Date: 20141015 Docket: 06-13-58; 06-13-66 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Mickey Barnabas ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Crown): Doug Garson Counsel (Defense): J. Thompson Location Heard: Iqaluit, Nunavut Date Heard: September 11, 2014 Matters: Criminal Code, s. 811 ; s. 348(1) (b); s. 810(2) ; s. 271(1) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Restriction on Publication: Restriction on Publication: By court order made under

section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” I. INTRODUCTION [ 1 ] Mickey Barnabas is charged with one count of break and enter and commit sexual assault, one count of break and enter and commit theft and three counts of breaching his recognizance. II. EVIDENCE [ 2 ] The Court heard from three witnesses. Some of the facts are not in issue. [ 3 ] The complainant and her boyfriend both testified that on the night in question they went to a friend’s house.

They were drinking at the friend's house and both were somewhat intoxicated when they returned home. [ 4 ] After returning home the front and back doors to the house were locked. The complainant then took out some money which she kept hidden in the bedroom closet and counted it. There was $1,260. She put the money in her pants pocket and put the pants in the laundry basket. It seems that this was to hide the money and keep it safe. The couple then had a cigarette in the laundry room and went to bed. They were positioned so that the head of one faced the feet of the other.

The boyfriend testified that before going to bed he used a knife to close the bedroom door. He testified that the latch on the bedroom door was broken so he sometimes used a knife in this way. He also testified that the following morning the lock on the front door was broken. [ 5 ] The complainant testified that she awoke when she felt something in her vagina, towards the back. The complainant has given conflicting evidence on what happened next: 1. At trial, the complainant testified that she opened her eyes, saw her boyfriend’s feet, looked back, and saw the accused having sex with her. 2.

At the preliminary hearing, she testified that she felt someone on her back, opened her eyes and saw her boyfriend’s feet, closed her eyes, opened them again and saw the accused going through her stuff. [ 6 ] The complainant also told the police that she heard the accused break in at 6:15 am and was sexually assaulted at 6:30 am. She was aware of the times because she looked at her watch.

She explained that she did not react when she initially heard him at 6:15 am as she thought it was the neighbour’s young children, who are often up early. [ 7 ] The complainant testified that upon seeing the accused she asked him what he was doing and told him to get out, at which point he fled from the house. [ 8 ] The boyfriend's evidence is of little assistance regarding this crucial time period. At trial, he testified that when the complainant awoke him he saw someone running out the door. In his statement to the police he told them that he saw the accused fondling the complainant's vagina.

He also told the police that he saw the accused on top of the complainant. However, he clarified that this was what

the complainant had told him and not what he actually observed himself. This is all in contrast to the complainant's evidence that after the accused left the house she tried to awake her boyfriend but had difficulties as he was in a heavy sleep. While I accept that the boyfriend was doing his best to try and assist the Court, and perhaps the complainant, there is a real concern that his evidence on this crucial area is not what he observed but is, at best, a combination of what he observed and what he was told by the complainant. [ 9 ] The police were not notified right away. Instead, the landlord was called.

He came over to the house to help clean up. In a statement given to the police the complainant said that she cleaned up “because I needed more evidence for you guys”. [ 10 ] The police attended at the residence and took pictures of some damage in the bedroom, however, there were technical difficulties with the camera and those photos were not produced at trial. The officer testified that his attention was not drawn to nor did he see any damage to the front or back door. [ 11 ] The accused was arrested later that same day. At the time of his arrest, he was intoxicated. III.

POSITIONS OF THE PARTIES [ 12 ] The Crown submits that the evidence of the complainant is reliable, that any inconsistencies in her evidence are minor, and that the Court can be satisfied beyond a reasonable doubt that the accused entered the home, sexually assaulted the complainant, and stole money. [ 13 ] The Defence points to the lack of evidence of a forced entry and submits that the Court should be concerned as to whether there was a break and enter at all.

If the Court is satisfied that there was a break and entry followed by either a sexual assault, or a theft, or both, the Defence submits that the Crown has not proven beyond a reasonable doubt that the accused is the person responsible. The Defence points to inconsistencies in the complainant's evidence and submits that her evidence cannot be relied upon by the Court. IV. ANALYSIS [ 14 ] In a criminal case, the burden is on the Crown to prove its case beyond a reasonable doubt. This burden never shifts.

The Defence does not have to prove anything. [ 15 ] This case is difficult because of the inconsistencies in some of the evidence of each of the witnesses and also because of inconsistencies between witnesses. [ 16 ] First, with respect to the evidence of the complainant, some of the inconsistencies in her evidence are minor and do not impact on her credibility or the reliability of her evidence. However, some of the inconsistencies are more significant. The complainant testified at trial that she awoke because she felt someone having sex with her and when she looked she saw it was the accused.

At the time she identified him he was still having sex with her. In her statement to the police, she stated that at the point she identified the accused, he was not having sex with her but was going through her things in the bedroom. In my view this is a major inconsistency on a crucial point. [ 17 ] Although not directly related to the crucial time, it is also significant that the complainant testified that after the accused left the residence she tried to wake her boyfriend but had difficulties doing so.

In her words, “He was deeply passed out so I had to try to wake him up for at least almost two hours.” The boyfriend, however, testified to having seen the accused in the house, either actually sexually assaulting the complainant or in the course of fleeing the residence. [ 18 ] The complainant was examined thoroughly on the damages to the house and at no point did she say there was any damage to either of the exterior doors. The police officer did not see any damage. It was only the boyfriend who testified to there being damage to the front door. V. CONCLUSION

[ 19 ] I am suspect that something may have occurred that involved the accused but what that was, I cannot safely determine. After assessing all of the evidence and, in some instances, the lack of evidence, I am unable to conclude that the Crown has discharged its burden. [ 20 ] I find the accused not guilty of break and enter and commit sexual assault, not guilty of break and enter and commit theft, and not guilty of each of the breaches of recognizance, except for the breach for consuming alcohol, for which I find him guilty, his having been intoxicated at the time of his arrest.

Dated at the City of Iqaluit this 15th day of October, 2014 ___________________ Justice S. Cooper Nunavut Court of Justice