R. v. Sutor, 2023 NUCJ 13

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Sutor, 2023 NUCJ 13 Date: 20230621 Docket: 06-21-44 Registry: Iqaluit Crown: His Majesty the King -and- Accused: John Sutor __________________________________________________________________ Before: Madam Justice Charlesworth Counsel (Crown): Counsel (Accused): A. Dion A. Crowe Location Heard: Date Heard: Iqaluit, Nunavut March 20-23, 2023 Matters: Trial decision in regards to charges under Criminal Code of Canada, RSC 1985, c C- 46 , ss. 271 REASONS FOR DECISION (Delivered Orally) (NOTE: This document may have been edited for publication) DISCLAIMER PAGE 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section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” Anonymized Judgment Disclaimer : This judgment has been anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties. Letters have been assigned at random. I. INTRODUCTION [ 1 ] John Sutor is charged that on the evening of August 21, 2021, he sexually assaulted AB contrary to

Section 271 of the Criminal Code , RSC 1985, c C-46 . [ 2 ] Mr. Sutor pleaded not guilty to the charge and went to trial. His trial took place, before me, from March 20 to 23, 2023 in Iqaluit, Nunavut. Though his trial was held in Iqaluit, the alleged incident took place in a different community. [ 3 ] At trial both AB and Mr. Sutor gave evidence. Counsel for Mr. Sutor also called many witnesses to give character evidence on behalf of Mr. Sutor. [ 4 ] At the end of trial, I reserved my decision. These are my reasons for decision.

A. The Events Leading Up to the Evening of August 21, 2021 [ 5 ] I have an understanding of the facts leading up to the evening of August 21, 2021 from the uncontroversial portions of the testimony of Mr. Sutor and AB. [ 6 ] The complainant and the accused were both employed at a work site where out of territory workers rotate in and out on six-week cycles. The accused was one of these workers. The site also employs, on a fulltime basis, residents who live in the community that is close by. This was the situation of the complainant. [ 7 ] Mr.

Sutor was the complainant’s direct manager for almost two years while he was on site. The complainant testified that she liked Mr. Sutor’s management style. He was her first mentor and she thought he was “great”. Mr. Sutor was over 20 years older than AB. [ 8 ] The working relationship turned into a close friendship.

Facebook Messenger exchanges, discussions of life and children, rides to and from work, food being dropped off for the complainant and her three young children by the accused, the complainant coming to know the accused’s wife and adult children, all evidence the close, but platonic, relationship that developed over time between the complainant and the accused. [ 9 ] The testimony of the accused and complainant also touched upon how the closeness of the friendship would occasionally spill over into the workplace. Both Mr.

Sutor and AB testified that on more than one occasion AB had to tell the accused not to touch her on the shoulder at work when he did so to commend a new skill that she learned. AB would tell the accused (and other co-workers) on such occasions to “get out of my bubble”. He would then immediately do so. [ 10 ] In the summer of 2021, after realizing she did not have the requisite experience to become a manager at her current place of employment, AB started to look for a new challenge and applied for a position with a different employer. Mr.

Sutor was no longer her direct boss, but he was one of her references and AB was successful in landing a good government position that would start in October 2021 in a different community. [ 11 ] Mr. Sutor’s last rotation that would overlap with AB prior to her moving to her new position was scheduled to end in September 2021. To celebrate AB’s new position, Mr. Sutor offered to cook her a home-made venison meal at her house on the evening of August 21, 2021. AB accepted the offer. [ 12 ] On that date, Mr. Sutor arrived at AB’s house to start preparing dinner at around 6 p.m. Mr.

Sutor began drinking while cooking, AB also had a beer during the meal’s preparation. AB’s middle child had his own dinner before to going to bed at around 10 p.m. AB’s other two children were not home during the dinner. B. The Late Evening of August 21, 2021: The Testimony of AB on Direct and Cross Examination [ 13 ] The testimony of the accused and AB differed substantially in relation to what took place after 10 p.m. on August 21, 2021. [ 14 ] AB testified that she and Mr. Sutor moved to the couch from the dining room table sometime after her child went to bed at approximately 10 p.m.

The two had been drinking since dinner (according to Mr. Sutor, AB consumed two glasses of champagne, two shots of peach schnaps, some cans of beer, and a portion of a can of wine; this is slightly more alcohol than AB remembered having). [ 15 ] AB became intoxicated. During cross examination AB acknowledged that certain scenarios put to her by Mr. Sutor’s lawyer were possible as she could not recall them due to having had so much to drink that evening.

[ 16 ] AB testified that while on the couch Mr. Sutor offered to give her a foot rub. He had done this before, and AB accepted the offer. AB testified that at this point she was feeling relaxed with Mr. Sutor as they sat and talked mostly about what her new job would entail. [ 17 ] After a while, Mr. Sutor turned AB around and gave her a hug. AB was comfortable with receiving the hug. However, AB testified that Mr. Sutor then touched her front without her permission. He then stood her up, kissing and touching her, and pushed her towards the bedroom where he closed the door.

AB told him “no” many times as he moved her towards the bedroom. Mr. Sutor ignored her saying “no”. He took off her clothes and his, put her on the bed on her back, penetrated her vagina with his fingers and mouth prior to penetrating her with his penis. AB was scared and could only say “no”. Mr. Sutor just kept going. [ 18 ] At one point in her evidence, she stated: “how do you fight off a guy who is a foot taller than you?” [ 19 ] After approximately 10 minutes AB heard the front door open and realized her oldest child had come home. AB was able to stop Mr. Sutor and quickly got dressed. Mr.

Sutor got dressed as well. AB said hello to her daughter and followed Mr. Sutor outside where she had a cigarette. Mr. Sutor then drove away. [ 20 ] AB testified that there was no discussion about having sex that night and she did not want to have sex. The next morning, which was a Sunday, Mr. Sutor brought brunch over for the family, as he often had before. AB did not speak to him when he did. When Mr. Sutor called to speak to her the next day after work, he asked if he had “lost a friend”. AB replied, “I think you did”. AB blocked Mr.

Sutor on Facebook as soon as he left his rotation. [ 21 ] Approximately four days after the alleged assault, AB took two photographs of her front (Exhibit 1-A and 1-B). She had noticed a bruise on her left shoulder/chest area. AB testified the bruising was the result of Mr. Sutor pushing her into the bedroom. [ 22 ] AB took screenshots of her last Facebook messages to Mr. Sutor on September 5, 2021 (Exhibit 2-A and 2-B). Mr. Sutor started the conversation with, “Know that when I think of you it is with true respect and a sincere affection. I hope someday we can again meet as friends.

Can’t leave without saying goodbye if only by text.” AB replied: “You do not understand the anger I’ve held on, hatred right now, it’s exhausting. I do not wish you peace as I haven’t found mine. I’ve never felt so diminished. I do not mince my words because I was overlooked as a person with feelings”. [ 23 ] AB finished her employment at the work site she shared with Mr. Sutor on October 16, 2021. She accompanied her oldest child to Iqaluit for a medical appointment on October 18. AB reported the assault to the RCMP on October 20, 2021 upon her return to her community.

AB waited to report the incident until after she had ceased working at that job, to avoid it impacting her employment or relocation to her new job. [ 24 ] On cross examination, AB was questioned by defence counsel about details which would emerge in Mr. Sutor’s testimony. AB said it was possible that the foot rub could have happened at the kitchen table and then she and Mr. Sutor moved to the couch where he gave her a shoulder rub for about 5 to 10 minutes. [ 25 ] It was put to AB that she kissed Mr. Sutor near the end of the shoulder rub when she leaned back against him.

AB again acknowledged it was possible, but she did not remember due to her level of intoxication. [ 26 ] AB stated on cross examination that Mr. Sutor may have been “checking out her piercings” (which they were discussing) when he touched her breast. AB also acknowledged it was possible Mr. Sutor was again checking for piercings when he put his hand down her pants to reach for her groin. [ 27 ] AB said that her middle child does take melatonin, but she did not recall telling Mr. Sutor that he would not wake up because she had given him melatonin that night. She agreed that in the bedroom, she kissed Mr.

Sutor back, but said that was done out of fear. AB said she could not answer when asked if it was possible that she gave Mr. Sutor hickeys, probably because of how much she had to drink that night. As well, she did not remember showing Mr. Sutor a clear plastic sex toy that she does have. AB also did not remember calling Mr. Sutor’s cellphone at 1:30 a.m., but said it made sense that she would do so, so he would find it quickly and leave her home.

[ 28 ] Several other times, AB agreed that other suggestions by defence counsel possibly happened, because she doesn’t remember parts of the night due to the amount of alcohol she consumed. [ 29 ] AB agreed that she messaged Mr. Sutor the next morning, Sunday, August 22, to say that her family would not be going to the worksite for brunch, but it was fine if he dropped brunch off at her home for her family. AB said she was still processing the assault at that time and was worried about keeping her job. She felt that if she made a complaint about Mr.

Sutor, she would have to quit because “everyone would look at her with shame.” C. The Testimony of John Sutor [ 30 ] Mr. Sutor described a nice, relaxing evening at AB’s home. He cooked venison with roast potatoes and vegetables and served AB alcohol he brought along. He denied that AB appeared intoxicated and said that after her son went to bed, they were sitting at the kitchen table when he offered her a foot rub. [ 31 ] After that, they went to the couch and Mr. Sutor asked if AB wanted a shoulder rub, which he had given her several times before.

AB sat in front of him on the couch and took off her outer shirt and after the shoulder rub, she leaned back against him, and he put his arms around her. [ 32 ] AB “settled in” and then he realized one hand was resting on her breast. Mr. Sutor commented on that. AB told him she had pierced her nipples, like his wife. He said, “let me see” and put his arm inside her undershirt. Then he asked whether anything else was pierced, and put his hand inside her pants, toward her groin, expecting her to object. Mr. Sutor said she did not object, and instead she kissed him. [ 33 ] Mr.

Sutor then described a night of consensual sexual acts between the two of them. AB never said, “stop” or “no”. When Mr. Sutor asked if her child might wake up, she said she had given the child melatonin. At one point, AB showed him her clear plastic sex toy and said, “we can save this for next time.” At another point, AB called his cellphone because he couldn’t find it – it was in the couch cushions. This call is shown in Mr. Sutor’s Facebook messenger log as coming in at 1:29 a.m. on August 22, 2021. [ 34 ] Mr.

Sutor said he heard AB’s oldest child come home and then go away again during the second time the two were in the bedroom. The child came back while they were in the bedroom the third time, and that is when Mr. Sutor got dressed and went to the washroom. When he came out, AB was happy and bubbly and getting dressed by the dining table. Her child seemed sullen and somber. [ 35 ] Mr. Sutor said AB gave him hickeys on the night of August 21/22. He took photographs on August 22, 23, and 28 of marks on his left chest and right bicep that start as red and became bruises, before fading.

The photographs are part of Exhibit D-3; the marks shown appear to be hickeys. [ 36 ] On August 23, 26, 29, and 30, the two continued to discuss daily events on Facebook messenger. AB requested that Mr. Sutor give her a ride to work on August 26. The texts on September 5 discussed above were the last Mr. Sutor and AB sent to each other. [ 37 ] The two had exchanged a total of 21,255 Facebook messenger texts between September 6, 2019 and September 5, 2021, while Mr. Sutor was on site as well as during his six-week stays at home in Ontario. After AB messaged that she hated him, on September 5, 2021, Mr.

Sutor replied, “I will stop now and be gone. I have nothing but respect for you and know that I am devistated ( sic ) that I have caused you hurt and pain. My world is less for having lost you. I respect what you say and you are correct in that I don’t understand.” [ 38 ] When asked about why he would take photos of the hickeys AB gave to him in the days after the rendezvous he answered that the first four photos were taken Sunday and Monday (August 22 and 23) afternoon to tease her about “what she had done to him”. The final set was taken on August 28, to show they had faded. [ 39 ] Mr.

Sutor admitted on cross examination that AB said “no, we should not be doing this” prior to when the two went to the bedroom. He denied she said no at other times.

[40] Mr. Sutor testified on cross examination that he did not see signs of intoxication on AB at the time the sexual contact commenced,despite his testimony that AB had consumed approximately eight alcoholic beverages in under four hours leading up to the sexualencounter. Mr. Sutor also said that he could not comment on whether the same amount of alcohol would have a different impact on ABthan on him even though AB was a foot shorter and approximately 60 pounds lighter than Mr. Sutor.

He knew that she did not drinkalcohol often and had only observed her to be impaired one time previously, when she “just seemed tired". [41] Mr. Sutor also disagreed with the Crown’s proposition that the over-20-year age difference, the size differential, the fact he washer manager, and that he was from Ontario while she was from a small community in Nunavut, resulted in a power imbalance betweenthe two of them. II. POSITIONS OF THE PARTIES [42] The Crown’s position is that Mr. Sutor’s evidence is not worthy of belief, and that AB’s evidence is sufficient to find Mr. Sutorguilty of sexual assault contrary to

section 271 of the Criminal Code. AB testified honestly about the sexual assault she suffered at thehands of Mr. Sutor, and she should be believed. Weighing the competing testimony, looking at the events of the relationship andinteractions in context, the Crown says it has proven beyond a reasonable doubt that Mr. Sutor sexually assaulted AB on the evening ofAugust 21, 2021. [43] The defence position is that Mr. Sutor’s evidence should be believed and as such an acquittal must follow. Additionally, ABtestified that there were portions of the evening she is unable to remember due to her level of intoxication.

AB testified it was possibleshe kissed Mr. Sutor in response to his advances, and this is sufficient to find that AB communicated her consent to Mr. Sutor for thesexual activity that followed. This also requires an acquittal be issued. The defence also points to the character evidence described belowin support of Mr. Sutor to raise a reasonable doubt about Mr. Sutor’s guilt. III. THE LAW AND ANALYSIS [44] The burden is on the Crown to prove beyond a reasonable doubt that Mr.

Sutor committed 1) the act of sexual assault on AB; 2)with a guilty mind. [45] The Crown must prove its case through the evidence tendered by witnesses at trial. When a complainant and accused both testify,and the testimony provides differing versions of the facts in question, it is left to the trier of fact to make a credibility determination as towhat evidence leads to the proper decision. [46] The Supreme Court of Canada, in its seminal decision in R. v. W.(D.), (SCC), [1991] 1 SCR 742, developed a threepart test for when credibility is important to establish reasonable doubt. The test is as follows: 1.

If I believe the evidence of the accused, an acquittal must follow; 2. If I do not believe the evidence of the accused, but a reasonable doubt has been raised by the testimony, an acquittal must follow; and 3. Even if I am not left with a reasonable doubt from the accused’s evidence, an analysis must still be undertaken into whether I amconvinced beyond a reasonable doubt of the guilt of the accused on the basis of the balance of the evidence which I do accept. [47] Mr.

Sutor’s account of the evening’s events was that it was a night where a passionate and consensual sexual encounter organicallycommenced between two work friends.

[48] Mr. Sutor testified that at no time did AB say no to the sex and in fact, she kissed him in response to his advances and eventuallygave him hickeys while having sex. According to Mr. Sutor’s testimony, AB went so far as to encourage the future use of a sex toy andreassured Mr. Sutor that her child would not wake up as she had given him melatonin to sleep. [49] I find that AB testified in a forthright and honest manner. AB acknowledged during her cross examination that she could notremember portions of the evening due to her level of intoxication. She admitted it was possible she kissed Mr.

Sutor at different times onAugust 21, 2021, she could just not remember for sure. She also acknowledged it was possible she gave Mr. Sutor the hickeys he wouldlater photograph. Again, she could not remember. [50] I find, through the submission of the photographs depicting the hickeys and the testimony of both AB and Mr. Sutor, that theseresulted from the sexual activity on the evening of August 21. [51] AB’s candid admission to her partial lapses in memory came across honestly and worthy of belief. However, the lapses in memoryand concessions that certain scenarios were possible call into question what Mr.

Sutor understood AB’s state of mind to be during the lateevening of August 21. It is believable that he understood from the kisses, hickeys and conversation that AB was consenting to the sexualactivity that night. [52] The recent Supreme Court of Canada’s decision in R. v. Barton 2019 SCC 33 deals with the role of consent in the actusreus and mens rea of sexual assault at paragraphs 89 and 90: [89] Consent is treated differently at each stage of the analysis. For purposes of the actus reus, “consent” means “that thecomplainant in her mind wanted the sexual touching to take place” (Ewanchuk, at para. 48).

Thus, at this stage, the focus is placedsquarely on the complainant’s state of mind, and the accused’s perception of that state of mind is irrelevant. Accordingly, if thecomplainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no consent — plain and simple(see Ewanchuk, at para. 31). At this point, the actus reus is complete.

The complainant need not express her lack of consent, orrevocation of consent, for the actus reus to be established (see J.A., at para. 37). [90] For purposes of the mens rea, and specifically for purposes of the defence of honest but mistaken belief incommunicated consent, “consent” means “that the complainant had affirmatively communicated by words or conduct her agreement toengage in [the] sexual activity with the accused” (Ewanchuk, at para. 49).

Hence, the focus at this stage shifts to the mental state of theaccused, and the question becomes whether the accused honestly believed “the complainant effectively said ‘yes’ through her wordsand/or actions” (ibid., at para. 47). [53] AB’s admissions that it was possible she kissed Mr. Sutor on the couch and gave him hickeys while kissing him in the bedroomand that she did not recall the discussion of the future use of the sex toy or that she gave her child melatonin to ensure a sound sleep,entitle Mr.

Sutor to successfully argue the complainant’s actions during the sexual encounter sufficiently raise a reasonable doubt thatshe communicated her non-consent to Mr. Sutor. [54] The Crown has not satisfied me beyond a reasonable doubt that Mr. Sutor knew that AB was not consenting to the sexual activityon August 21, 2021. I find Mr. Sutor not guilty of sexual assault. IV. CHARACTER EVIDENCE [55] The defence called eleven witnesses, four of whom were women, and all of whom knew Mr. Sutor through their work. Thewitnesses ranged in age, from their mid-thirties to post-retirement age.

The witnesses were called to give character evidence, that is theywere allowed to express their opinions about Mr. Sutor’s general character and reputation. In particular, the witnesses were asked aboutany sexist or sexual harassment-type behaviour from Mr. Sutor. [56] The witnesses all spoke about Mr. Sutor as a respectful, good co-worker or manager who never showed any sexist or sexualharassment-type behaviour.

[ 57 ] Character evidence is evidence of the accused’s conduct or reputation outside of the alleged offence. As noted above, character witnesses are allowed to give their opinion about the accused’s character and that evidence may be relevant to whether the accused committed the offence charged, and to the credibility of the accused as a witness. Character witnesses are not allowed to give any evidence about the offence itself. [ 58 ] It is somewhat unusual for the defence to call character witnesses, and very unusual for so many witnesses to be called for that purpose. It is clear that Mr.

Sutor has an excellent reputation as a mentor and a boss at work. Indeed, Ms. AB said similar things about him in her testimony. [ 59 ] Mr. Sutor’s reputation at work did not assist me in my assessment in this case. Dated at the City of Iqaluit this 21 st day of June, 2023 ___________________ Justice S. Charlesworth Nunavut Court of Justice