R. v. Janes, 2013 NUCJ 23

Citation: R. v. Janes, 2013 NUCJ 23 Date: 20130810 Docket: 08-10-295-1 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Herbert Janes ________________________________________________________________________ Before: The Honourable Mr. Justice Kilpatrick Counsel (Crown): D. Garson Counsel (Accused): D. Berg Location Heard: Iqaluit, Nunavut Date Heard: October 2, 2013 Matters: Criminal Code, ss. 271 REASONS FOR JUDGMENT (NOTE: This document may have been edited for 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section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.”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 ] In the early morning hours of March 27th, 2008, R.A. was brutally beaten and raped by a number of assailants at a residence in Iqaluit. Herbert Janes has been charged with a sexual assault arising out of this incident. A. Crown Evidence [ 2 ] In the hours preceding the rape, R.A. had attended a bar in Iqaluit. She consumed at least nine beer. R.A. then left the bar with two friends to continue drinking at a residence. She remembers consuming two “medium” sized glasses of vodka upon her arrival there. R.A.’s memory then fails. She has no memory of leaving this residence.

She has no memory of arriving at the residence where the sexual assault and beating occurred. R.A. has no memory of how she ended up in the bedroom. She has no memory of what events, if any, preceded this. [ 3 ] R.A. recovers her memory when she is being sexually assaulted in a bedroom. R.A. believes that three, possibly four, men were involved in this attack. R.A. did not recognize any of her assailants. [ 4 ] R.A. says that she was first pinned to the ground by two of her assailants holding her arms. The attackers then took turns violating her.

At some point a female, Ahme Papatsie, arrives in the room and repeatedly strikes R.A. in the head and face with something hard. This beating leaves R.A. dazed, bleeding, and badly bruised. [ 5 ] R.A. recalls hearing a male voice on two occasions telling the others to stop what they were doing. R.A. is unable to say who this was. [ 6 ] R.A. is not able to identify Herbert Janes as one of her attackers. She has no memory of seeing Mr. Janes at the crime scene. She has no memory of having sexual intercourse with Herbert Janes on the night of March 27th, 2008. Mr.

Janes and R.A. were not previously acquainted with each other. [ 7 ] R.A. believes the attack was twenty to thirty minutes in duration. After it was over R.A. fled the residence without shoes or socks. She went to a friend’s house where police and ambulance were eventually called. [ 8 ] Ahme Papatsie lived at the residence where this attack occurred. So did Herbert Janes. Ahme Papatsi is Mr. Janes’s sister. [ 9 ] Samples of bodily fluids were extracted from the vagina of the complainant during the sexual assault investigation that followed.

These samples were subjected to forensic analysis for DNA. [ 10 ] The Defendant’s DNA matches the DNA recovered from the complainant’s vagina. The Defense takes no issue with the findings of the forensic DNA analysis. B. Defence Evidence [ 11 ] Mr. Janes has taken the stand in his defense. Mr. Janes concedes that he was intoxicated on the night of the incident. Mr. Janes says that after returning to his home after a night of drinking, he heard an argument across the street. Three people appeared to be involved. Mr. Janes saw one of the persons quit the argument and start walking down the street. Mr.

Janes opened the window and hailed the female leaving the area. This female was R.A.. She was not known to Mr. Janes. R.A. was invited inside. R.A. appeared to be intoxicated. She was unsteady on her feet and is described as staggering. [ 12 ] For approximately twenty minutes Mr. Janes and R.A. engaged in small talk. Mr. Janes does not recall everything that was said during this conversation. There was some discussion about why R.A. had left the house across the street. There was some discussion about traditional lifestyles. There was some talk about the hunting culture and throat singing.

There was some discussion about R.A.’s

antecedents and her formative years in her home community. As time passed, the discussion became more animated. Both were smiling and laughing. They were having a good time. [ 13 ] Mr. Janes says that he asked R.A. whether she would like to have sex with him. R.A. said she would, and so they both go upstairs to a bedroom. They take off their clothes. They then have sexual intercourse for an estimated 40 minutes. Mr. Janes insists that R.A. was a willing and active participant in this activity. [ 14 ] Mr. Janes says that he heard voices outside the house.

He got dressed and went downstairs to investigate leaving R.A. upstairs on the mattress naked. R.C., L.S., and J.N. arrive at the door. R.C. has a 40 ounce bottle of Smirnoff Vodka. These people were known to Mr. Janes. They were drinking companions. They asked to be allowed entry. It was cold outside and they had nowhere else to drink. After entering the residence, an impromptu party starts with Mr. Janes sharing some of the alcohol brought by the others. [ 15 ] The residence bathroom is upstairs. After some time, L.S. goes upstairs. He is gone for some time. Sometime later, J.N. also disappears upstairs. Mr.

Janes says that he takes no real notice of this. He was focussed on drinking and was engaged in conversation with R.C. L.S. eventually returned to the party downstairs and said that he has just wasted two condoms. R.C. then asks if there are “chicks” upstairs. When this is confirmed, he too goes upstairs. He is gone for some time. The drinking party continues. [ 16 ] Ahme Papatsie then arrives home. She too goes upstairs. Mr. Janes says he then heard someone screaming. He heard his sister swearing. Mr. Janes goes upstairs to investigate and sees Ahme Papatsie repeatedly striking R.A. in the face. Ms.

Papatsie was accusing R.A. of being intimately involved with her boyfriend. R.C. is also present in the room naked from the waist down. [ 17 ] Mr. Janes immediately intervenes by telling his sister to stop. Mr. Janes pulls his sister away from R.A.. [ 18 ] Mr. Janes insists that he took no

part in the beating. He took no

part in any form of non-consensual sexual activity with R.A.. He readily admits to sexual activity that formed no part of the physical or sexual violence that was perpetrated by others. He says that he did intervene to stop the violence when he became aware of it. II. Analysis [ 19 ] Mr. Janes is presumed by the law to be innocent of this charge. He does not have to establish his innocence. The burden of proof remains on the Crown throughout this trial. This burden never shifts to the Defendant. The standard of proof required to establish guilt is a high one.

It is only proof beyond a reasonable doubt that can displace the presumption of innocence. Suspicion alone is not enough. [ 20 ] Mr. Janes has given up his right to silence. He has testified in his own defence. If I believe the Defendant's evidence I must find him not guilty. If I do not believe his testimony but find that this evidence raises a reasonable doubt in my mind about any essential element required to be proved by the Crown, Mr. Janes must be given the benefit of this doubt.

He must be found not guilty because the presumption of innocence will then not be displaced by evidence establishing his guilt beyond a reasonable doubt. [ 21 ] At the end of the day if I do not know who or what to believe the law demands that he be acquitted. Once again, it is the Crown who must establish guilt. The Defendant does not have to prove his innocence. [ 22 ] Finally, even if I reject the Defendant's evidence, even if I find it does not raise a reasonable doubt, Mr. Janes can only be convicted if on all of the evidence his guilt has been proved by the Crown to the requisite criminal standard of proof.

[ 23 ] I emphasize that a criminal trial is not a credibility contest between crown and defence witnesses. The accused is entitled to the benefit of any reasonable doubt on an issue of credibility arising from the testimony of witnesses heard in a trial. It is not a matter of simply choosing one witness's version of events over another. Such an approach would suggest that the accused or his witnesses have some burden to persuade the trier of fact that his or their version of the truth is more accurate and reliable.

This is never the case where innocence is at stake. [ 24 ] R.A.’s evidence alone is insufficient to establish Mr. Janes’s participation in a sexual assault. R.A. does not identify Mr. Janes as one of the attackers. The Crown seeks to rely on the DNA evidence to establish Mr. Janes’s identity as one of the participants in the alleged sexual assault. This is problematic in view of the defense evidence that there was

an act of consensual sexual intercourse preceding the act of physical and sexual violence. [ 25 ] R.A. is unable to remember what events preceded the sexual assault in the bedroom. She says that she was in a blackout. R.A. is consequently unable to refute the defense claim that Mr. Janes had engaged in

an act of sexual intercourse with R.A. earlier in the evening. The following exchange occurs during the defense cross examination of R.A.: Q: All right. I'm going to suggest to you that what happens is for some reason you get kicked out of Junior and Elisapee's place, and my client, Mr. Janes, calls you over from across the street. You come over. You have a drink with him. And then he asks whether you want to have sex with him, and you say yes, and you go upstairs and you have sex with him. Isn't that what happened? A. I don't remember. Q. Is it possible that's what happened? A.

I don't know, maybe. (Official Transcript of Trial, Nunavut Court of Justice, October 2, 2013, p 28 lines 24-27- p 29 lines 1-7) [ 26 ] The Crown argues that R.A.’s evidence with respect to alcohol consumption together with her lack of memory or “blackout” establishes that R.A. lacked the capacity to consent if indeed

an act of sexual intercourse with Mr.

Janes did occur as alleged by the defendant. [ 27 ] Implicit in this argument is the following reasoning: a. if the complainant had in fact subjectively consented, she would necessarily have retained a memory of doing so; b. if the complainant has no memory of consenting, then she must not have consented to the sexual activity in question; c. evidence of the complainant’s loss of memory is therefore direct evidence that R.A. lacked the capacity to consent at the time the sexual activity took place. [ 28 ] This reasoning is premised upon certain assumptions of fact that are not experientially or logically sound.

Highly intoxicated persons can still function to varying degrees, though they may also experience memory loss. They can move around, and even have conversations with others. They can also be capable of conscious thought, once again, to varying degrees. Heavily intoxicated persons may also agree to do strange things that they would not do if sober. Their judgment may be impaired, but this does not necessarily mean that they are not aware of what they are doing or why they are doing it.

The next morning, however, they may have no real memory of what they were doing the night before. [ 29 ] A person capable of consenting has the ability to understand and agree or not agree to engage in the sexual activity in question. The issue to be decided is whether the complainant was able to make an informed decision, and not whether the complainant would have

made a different decision if sober. Intoxication may, but does not necessarily, deprive a complainant of his or her ability to consent. [ 30 ] The Crown’s reasoning attempts to turn an absence of evidence into direct evidence of an essential fact that must be proved by the Crown, namely, a lack of consent or a lack of capacity to consent. A loss of memory or blackout is direct evidence of nothing except the fact that the witness cannot testify about what happened during the time in question.

The fact that a complainant has no memory of a particular period, by itself, cannot be taken as proof that the complainant did not consent or lacked the capacity to consent to sexual activity at the relevant time. [ 31 ] An absence of memory may be circumstantial evidence of incapacity to consent.

In assessing the strength of such an inference, the Court must consider not only the complainant’s own evidence on his or her level of intoxication, and their memory or lack of memory of events, but the evidence of those around the complainant who can describe what he or she did, what was said, and how the complainant behaved at the relevant time. [ 32 ] The Court may also consider evidence about the complainant’s pre-existing beliefs, prejudices, or predilections.

Where the issue is whether the complainant consented while intoxicated, the disinhibiting effects of alcohol complicates the process of drawing inferences from the attitudes and opinions the complainant holds while sober. [ 33 ] The strength of the inference of incapacity flowing from an absence of memory is directly proportional to the cogency of the other circumstantial evidence supporting it. In the absence of other circumstantial evidence, absence of memory by itself will ordinarily be insufficient to establish incapacity to consent beyond a reasonable doubt.

Expert evidence may be necessary in such a case to assist the Court in drawing an inference of incapacity based on the complainant’s drinking history, body weight, and drinking patterns. [ 34 ] There is evidence in this case related to R.A.’s consumption of alcohol. This included at least 9 beer and two “medium” glasses of vodka mixed with water. There is no evidence to tell the Court how many ounces of vodka were in these two drinks. There is evidence from the Defendant to suggest the complainant was unsteady on her feet.

She is described as staggering, but there is no indication as to how severe or persistent this condition was. The uncontradicted defense evidence suggests that while R.A. was intoxicated, she was mobile. R.A. entered the Papatsie-Janes residence unassisted and left unassisted. She could both walk and run. She could dress and undress herself. She could carry on a conversation. [ 35 ] Given the unsatisfactory state of the evidence, this Court is unable to conclude that the Crown has established the complainant’s lack of capacity to engage in consensual sexual intercourse beyond a reasonable doubt. A.

Credibility assessments [ 36 ] R.A.’s evidence was credible within the limits of her memory. Photographic evidence depicts the extent of the beating that she endured during these events. There can be no doubt that she was beaten. The Court has no doubt that she was violently raped and that at least two or three males participated in this attack. [ 37 ] The Crown urges the Court to reject Mr.

Janes’s entire account as a confabulation that is an affront to common sense. [ 38 ] The Court must understand and interpret the events of March 27th through a lens that recognizes the disinhibiting effects of alcohol on human behavior. It would an error to apply the standards of sober behavior to the decisions made and the actions taken by R.A. and Mr. Janes this night. What may seem like a reasonable thing to do by a heavily intoxicated person may seem entirely rash and improvident to a sober observer. The decision by Mr.

Janes to invite a strange female into his house and engage in sexual intercourse with her cannot be said to be improbable when viewed in the context of the intoxication of the participants. [ 39 ] Mr. Janes says that he verbally and physically intervened to put an end to the beating when he saw what was happening. The complainant recalls a voice repeatedly telling others to “stop it – that’s enough”. The complainant was unable to identify who this speaker was. The complainant’s own testimony does not contradict, but rather supports Mr. Janes’s claim of intervention.

[ 40 ] It is said that Mr. Janes’s inability to remember the entire conversation with the complainant preceding the invitation to have sex is problematic. The accused readily admits that he was intoxicated. The conversation being described occurred in 2008. It is not surprising under these circumstances that Mr. Janes might not be able to fully recall all of the conversation with R.A. over a period of twenty minutes. He does recall some details of the subjects being discussed. Under these circumstances, the Court is not prepared to discredit Mr.

Janes’s testimony on the basis of his inability to fully recount this conversation with R.A.. III. Conclusion [ 41 ] In this case, the Court has been tasked to distil fact from fiction upon the strength of witnesses’ memories that have been distorted and partially dismembered by heavy intoxication. The Crown’s ability to marshal sufficient evidence to meet the criminal standard of proof has been crippled by the quality of evidence in this case. There is a limit to what forensic science can prove. In some circumstances, forensic science is unable to pierce the fog of intoxication. This is such a case.

Under the baleful influence of alcohol, a memory has failed. In the gloom and shadow of an alcohol induced fog, doubt and uncertainty remains. [ 42 ] The Crown has failed to prove its case against the Defendant beyond a reasonable doubt. The Court finds that the testimony of Mr. Janes raises a reasonable doubt with respect to his involvement in the sexual assault perpetrated upon R.A.. The charge of sexual assault is consequently dismissed. Judgment accordingly Dated at the City of Iqaluit this 8th day of October, 2013.