R. v. Oshoweetok, 2015 NUCJ 19

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Oshoweetok, 2015 NUCJ 19 Date: 20150720 Docket: 08-13-718 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Naudla Oshoweetok ________________________________________________________________________ Before: The Honourable Mr. Justice Kilpatrick Counsel (Crown): D. Garson Counsel (Accused): J. Bedford Location Heard: Iqaluit, Nunavut Date Heard: June 24 and 29, 2015 Matters: Criminal Code , s. 246.1 REASONS FOR JUDGMENT (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section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” I. INTRODUCTION [ 1 ] Mr. Oshoweetok is on trial for a sexual assault that is said to have occurred approximately 30 years ago. [ 2 ] The gloom of history obscures truth. As months turn into years, as years turn into decades, the process of distilling historical truth from fiction becomes increasingly difficult. Forensic investigation does not readily illuminate time’s darker recesses.

Factual certainty becomes harder to achieve as the memories of witnesses and participants slowly degrade over time. [ 3 ] The Court now journeys into this place of shadow and uncertainty. II. EVIDENCE A. The undisputed facts [ 4 ] Much of the factual narrative given by CA is not in dispute. [ 5 ] CA came to know Mr. Oshoweetok as a family friend when she was living in Community X many years ago. CA’s father was then a Minister of Community X’s Anglican Church. Mr. Oshoweetok served as a lay assistant in the Church. He was often invited over to the family home following a church service for food and fellowship.

Mr. Oshoweetok was many years senior to CA. He was also married. [ 6 ] After some years, CA’s family moves from Community X to a different community. CA is sent to a school in the south. She returns to the north every summer to reconnect with her family and to work. [ 7 ] In 1985-1986, CA is working as an interpreter and translator at the hospital in Iqaluit. She is then between 19 and 20 years of age. Mr. Oshoweetok calls CA at the hospital. He is in town, having travelled from Community X to Iqaluit to undergo some type of training. He invites CA to join him for dinner at a local hotel restaurant. CA agrees.

Despite the passing of years, Mr. Oshoweetok is still considered a friend of the family. It has been many years since CA has last seen Mr. Oshoweetok. CA is anxious to catch up on the news of friends and families still living in Community X. [ 8 ] After CA finishes work, she meets Mr. Oshoweetok at the restaurant as planned. They have dinner together. A bottle of wine is ordered and consumed. CA has one full glass of wine and part of a second glass with her dinner. They talk of old times and common acquaintances. There is nothing said or done by either CA or Mr.

Oshoweetok that has sexual overtones. [ 9 ] At the conclusion of their dinner, Mr. Oshoweetok asks CA if she would like to continue the visit in Mr. Oshoweetok’s room. Mr. Oshoweetok has given CA no reason to suspect his motive in asking her to join him in the hotel room. CA agrees.

B. CA’s evidence [ 10 ] It is at this point that the evidence of CA diverges from the testimony of Mr. Oshoweetok. Both parties agree that

an act of full sexual intercourse occurs in the hotel bedroom. CA insists that this was non-consensual and that she expressly indicated her lack of consent to Mr. Oshoweetok. Mr. Oshoweetok claims that the act of sexual intercourse was fully consented to by CA and that she expressed her consent verbally to Mr. Oshoweetok before having sex. [ 11 ] CA indicates that upon entering the hotel room she put her jacket on a chair and sat down at the foot of the bed. She is then approached by Mr. Oshoweetok who gently pushes her down on the bed. CA asks Mr. Oshoweetok what he was doing. He gives no answer.

CA’s green corduroy pants are unbuttoned and her pants pulled down by Mr. Oshoweetok. He joins CA on the bed and then penetrates her vagina. CA says that she tells Mr. Oshoweetok to stop what he is doing. He does not do so. CA says that she tells him no, but he persists. [ 12 ] CA is in shock. Following the act of sexual intercourse she gets dressed immediately and leaves the hotel room and the hotel. She runs home. [ 13 ] CA does not tell her roommate what had just happened. She does not tell her father or her mother. CA says that she was not strong enough to talk about what had happened.

She felt embarrassed and overwhelmed by the events that had overtaken her so CA does nothing, and says nothing, for many years about the incident. CA says that her own personal growth eventually allowed her to overcome her fears. She finally discloses this dark secret to her father and sister (YA) some eight years later. [ 14 ] CA insists that she did not consent at any time to have any form of intimate contact with Mr. Oshoweetok. There was no earlier history of sexual contact with Mr. Oshoweetok. There was no flirting preceding the act of sexual intercourse. Mr. Oshoweetok was much older than CA.

He was old enough to be CA’s father. Mr. Oshoweetok was married. CA says that she finds the very thought of intimate sexual contact with Mr. Oshoweetok to be disgusting. This assertion by CA in court was accompanied by appropriate body language and emotion. C. Mr. Oshoweetok’s evidence [ 15 ] Mr. Oshoweetok says that they had been in the room for an estimated twenty minutes when CA chose to lie down on the bed. Mr. Oshoweetok was not asked and does not indicate where the two were seated during this initial twenty minute period. [ 16 ] While it is not clear from Mr.

Oshoweetok’s evidence what was happening during this interval, the Court infers that there was further small talk between the two. [ 17 ] Mr. Oshoweetok says that he eventually lies on the bed beside CA and puts his arm on top of her abdomen. He asks CA if she wants to have sex and she says yes. Mr. Oshoweetok then stands up and unbuttons CA’s pants and removes them. He takes off his pants. Throughout this process of clothing removal CA continues to lie on the bed. There is no active or passive resistance of any kind. CA makes no attempt to sit up or get off the bed while Mr.

Oshoweetok is busy removing his own clothing. [ 18 ] Mr. Oshoweetok then joins CA on the bed and they engage in sexual intercourse. While having sex, CA is alleged to have said to Mr. Oshoweetok in Inuktitut “I always say yes when someone wants to make love to me”. At one point during the act of sexual intercourse, it is alleged that CA is on top and astride Mr. Oshoweetok “moving up and down”. After some time, CA disengages when she is unable to achieve an orgasm. [ 19 ] CA then gets up and takes her clothing from where it was lying on the bed. She goes to the washroom and gets dressed. Mr.

Oshoweetok gives CA money for the cab fare to get home. D. Post-offence conduct

[ 20 ] Much time was spent on both examination and cross-examination of CA exploring the post-offence contact between CA and Mr. Oshoweetok. [ 21 ] CA telephoned Mr. Oshoweetok on multiple occasions in the years following the incident. These facts are not in dispute. [ 22 ] CA called Mr. Oshoweetok to wish him a Merry Christmas. She also spoke to him on other occasion to wish him a happy wedding anniversary. These telephone greetings are not consistent with the behavior one would ordinarily attribute to a person who has been traumatized by rape. Some explanation for this extraordinary behavior was called for.

None was given. [ 23 ] CA called Mr. Oshoweetok on two other occasions to solicit money. She was unemployed and needed money to get by. CA says that the trauma associated with her victimization by Mr. Oshoweetok had caused her to leave her employment as an interpreter for Corrections Canada. On the first of these occasions Mr. Oshoweetok sent her a money order for two hundred dollars. On the second occasion he declined to send further cash saying that he had no money to spare. [ 24 ] In a further telephone conversation some 12 years after the incident, CA calls Mr.

Oshoweetok to arrange an in-person meeting with him in Iqaluit. CA says that this was meeting was to facilitate Mr. Oshoweetok giving her an in-person apology for the sexual assault that he had committed. Mr. Oshoweetok says that the purpose of the meeting was to facilitate the giving of mutual apologies; to seek forgiveness from one another for having jointly participated in

an act of adultery. [ 25 ] This meeting did eventually occur at the Anglican Church in Community X in 2012. Mr. Oshoweetok paid for CA’s airfare between Iqaluit and Community X. There is some conflicting evidence about what transpired at this meeting. There is further controversy about what arrangements were made for the meeting and who was to attend it. Nothing of substance turns on this. [ 26 ] Since 2012, CA also communicated with various Bishops of the Anglican Church seeking consequences for Mr. Oshoweetok. CA wanted to see the Church terminate its association with Mr. Oshoweetok.

She also wanted to receive financial compensation for the alleged sexual assault by Mr. Oshoweetok. CA says that she wanted to see justice done. [ 27 ] The Church eventually suspends Mr. Oshoweetok from assisting with church activities for three months. The Church declines to give CA any financial compensation for the alleged offence. CA is told by Church officials that the provision of any compensation was conditional upon Mr. Oshoweetok first being charged and found guilty of a sexual offence.

It is subsequent to CA receiving notice of the Church’s position on compensation that CA lays a complaint with the Royal Canadian Mounted Police against Mr. Oshoweetok. [ 28 ] The Court heard testimony from CA’s sister YA. YA describes her relationship with CA as a close and open one. YA relates that CA disclosed to her some years ago that she had been raped by Mr. Oshoweetok in Community X and that this had occurred on multiple occasions. CA had also indicated in a number of conversations that she planned on seeking some form of financial compensation for these crimes. III. ANALYSIS A.

The burden of proof and the criminal standard [ 29 ] Mr. Oshoweetok 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 this 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. [ 30 ] Mr. Oshoweetok has given up his right to silence. He has testified in his own defence at his trial on this allegation. If this Court believes Mr.

Oshoweetok’s evidence, he must be found not guilty. If the Court does not believe his testimony, but finds that his evidence raises a reasonable doubt about any essential element required to be proved by the Crown, Mr. Oshoweetok must be given the benefit of

that doubt. [31] If, at the end of the day, this Court does not know who or what to believe, the law demands that Mr. Oshoweetok be acquitted.Once again, it is the Crown who must establish guilt. The defendant does not have to prove his innocence. [32] A criminal trial is not a credibility contest between Crown and Defence witnesses. Mr. Oshoweetok is entitled to the benefit of anyreasonable doubt on an issue of credibility arising from the testimony of witnesses heard in this trial. It is not a matter of simply choosingone witness' version of events over another. Such an approach would suggest that Mr.

Oshoweetok has some burden to persuade the trierof fact that his version of the truth is more accurate and reliable. This is never the case where innocence is at stake. [33] Finally, even if this Court rejects Mr. Oshoweetok’s evidence, even if it finds that this evidence does not raise a reasonable doubt,Mr. Oshoweetok can only be convicted if, on all of the evidence, his guilt has in fact been proved by the Crown to the requisite criminalstandard. B.

The prosecution of historic allegations [34] This Court has on a number of occasions outlined the difficulty associated with proving historic allegations to the requisite criminalstandard. The Court reiterates again what it said in the case of R v Horne, 2008 NUCJ 6 , 2008 NUCJ 06, [2008] Nu J No 9: [52] The standard of proof in a criminal prosecution, proof beyond a reasonable doubt, is a high threshold to achieve. The Crown bearsthe burden of proof, and it must do so with evidence that meets this standard. This is so for a reason.

Any lesser standard risks theconviction of the innocent and a possible miscarriage of justice. [53] The prosecution of historical offences presents the Crown with a formidable challenge. Delayed reporting and the passage of timecan interfere with the collection of credible evidence. Forensic science cannot assist where the physical evidence related to a crime or acrime scene has disappeared. [54] Witnesses may die or disappear. Witnesses who are found may choose not to cooperate. The passage of time may also affect awitness’s memory. Details once remembered may be forgotten.

The greater the time, the more pronounced this phenomenon is likely tobecome. Memories of events can shift over time as a result of subtle influences caused by a witness’s changing life experiences. Honestmistake and error can result. Delay affects not only the quantity of evidence available to the Crown, but also its quality. [55] It is against this background that the Crown must assemble its evidence.

Instead of alleging a specific date or dates when the allegedoffence or offences occurred, the Crown is left to indicate only a range of time, a range which may extend over months or even years.Instead of physical evidence, the Crown is left only with the word of an alleged participant in the events being described. [56] For all of these reasons, the passage of time, particularly great time, can have a significant impact on both the type and the quality ofevidence available to the Crown. The passage of time will often result in there being no independent evidence of a crime.

Yet theeffectiveness of the fact-finding process may often depend upon there being just such evidence. Such evidence is often needed to verifythe accuracy and completeness of a witness’s present memory of an historical event. This is particularly important where there is a clashof opinion about what happened. 10. The effect of delay on the Defence [57] Where there is significant delay between an alleged event and a trial, the Defence inherits many of the same problems experiencedby the Crown.

Exculpatory evidence will often disappear or become degraded with the passage of time… A defendant’s memory willalso deteriorate with the passage of time.

[60] All of these disadvantages aside, there is an even greater problem faced by an accused who defends against such dated allegations. In the absence of any independent evidence, the Court must rely entirely upon cross-examination and the adversarial process to assess the strength and ultimate reliability of the Crown’s evidence. Effective cross-examination is an attack upon detail; it is there to expose contradictions and unreliability. This right of cross-examination is fundamental to any accused’s right to a fair trial.

Cross-examination is also fundamental to the truth-finding process itself. [61] Sexual offences usually occur in circumstances where there are no witnesses and where there is a reduced chance of discovery. In the absence of any independent evidence, the credibility assessment of the participants becomes more difficult. The exploration of the contextual details associated with the event through cross-examination is critical to such an assessment in a trial environment. [62] Where there is great delay between the date of the alleged incident and the date of trial, testimony will likely be vague.

It is unlikely that such testimony will have the details necessary to expose unreliability or falsehood. This absence of detail and any contradictions that may be uncovered in cross-examination can also be readily explained away by a witness’s fading memory. There is a natural tendency for a Judge or jury to be more forgiving to a flawed memory under these circumstances … [63] In relation to very dated events, there are very real limits as to what can be achieved by cross-examination. Repeated responses such as “I can’t remember” or “it was too long ago” can effectively shut down the testing process.

The fewer the details and the larger the memory gaps, the more difficult and dangerous the fact-finding process becomes. Where the passage of time prevents substantial recall of details, there remains only a bald assertion of fact. Where such an assertion is met by an equally adamant denial, there is no safe basis to distil fact from fiction. [64] Cross-examination is best applied at a point where the witness’s memories are reasonably intact.

As events become more and more remote in time to the application of this testing process, as memories become degraded and details are forgotten, the testing process itself becomes less effective, and progressively more and more impaired. [65] Criminal trials are fought with forensic weapons. A timely cross-examination is one of the best and most effective means of discovering the truth.

To the extent that cross-examination is impaired, the truth-finding process dependent upon this is also adversely affected. [66] The passage of time, particularly significant time, can make it difficult and sometimes impossible to fight the fight that must be fought. Sometimes the delay is such that proof of an offence beyond a reasonable doubt becomes a standard that is simply unattainable in human terms. Sometimes the delay is such that the weapons necessary for an adequate defence cannot realistically be made available. C.

Delay and the timing of CA’s disclosure to police [ 35 ] The Defence points to CA’s failure to make a timely complaint as evidence of the fact that the event described by her simply did not happen as alleged. This is certainly an inference that can be drawn. However, this is not the only inference that is possible from this evidence.

This area of evidence must be approached with caution. [ 36 ] The fact that this complainant delayed reporting or failed to report the alleged assault at the earliest possible opportunity does not necessarily mean that the allegation she now makes is false. [ 37 ] There is no one rule to tell us how human beings will behave in the aftermath of an unexpected or frightening situation. Some may immediately report an incident to a loved one or run to the police. Others will remain silent. They may feel overwhelmed by the events that have overtaken them, events that are beyond their control.

They may consequently delay reporting for days, for weeks, or even years. Some may never make a complaint at all. They will suffer in silence. [ 38 ] The reasons for this are many. Some are driven by fear to be silent. Some fear the court process itself and the public humiliation that this brings. Some may even feel guilty because they believe that they contributed to their own victimization. Many, particularly

young children, do not know what to do so they do nothing. For this reason, this Court cannot rely upon CA’s failure to make a timely complaint alone as a reason to disbelieve her evidence. The timing of the complaint is simply one of a number of factors to be considered in assessing a witness’s credibility. [ 39 ] In making this assessment of credibility, the Court must consider not only the relationship of the parties, but the embarrassing nature of the allegations, and the personality, age, and life circumstances of the individual complainant.

The reasons given by a complainant for the delay in reporting must also be considered. [ 40 ] CA spoke of the reasons for the delay in disclosing the alleged offence. She was a young adult. The allegation involved a friend of the family and a work associate of her father who was a respected member of the Anglican Church. She did not feel strong enough, given her life circumstances at the time, to disclose to her parents. She feared how her mother would react. [ 41 ] As CA matured, she grew stronger. She learned how to stand up for herself.

There came a point in CA’s life where she felt sufficiently empowered to speak out. This is when she disclosed to her sister and her parents. This is when she attempted to see justice done by taking her complaint to the Church. [ 42 ] CA’s reasons for her initial delay are credible. However, it is clear that by 2008 CA was strong enough to talk about what had happened to others. There is no real explanation on the evidence for why CA delayed bringing the matter to the attention of the police once she found her voice. No explanation for the post-2008 delay was solicited by Crown counsel.

The timing of the disclosure to the police lends itself to an inference that the complaint to the police was made in an effort to secure financial compensation from the Church. The Church had refused to offer any compensation until a conviction was registered against Mr. Oshoweetok. [ 43 ] The timing of a civil claim for compensation for criminal injuries can significantly complicate a criminal prosecution. The potential financial benefits to a successful civil claimant may give rise to the suggestion that a false criminal allegation has been made and that this has been motivated by profit.

This is particularly true where, as in this case, a claim for compensation is pursued long before a criminal prosecution is launched. [ 44 ] YA’s conversations with her sister were never recorded. YA’s memory of these distant conversations suffers from all the usual frailties of human memory. However, in contrast to what CA tells the Court, YA says that CA disclosed that there were multiple incidents involving this defendant and that these had occurred in Community X not Iqaluit. At various points in these conversations, there was discussion of a claim being made for financial compensation.

Where the evidence of YA conflicts with the evidence given by CA, the resulting inconsistency has the effect of undermining the credibility and reliability of CA’s evidence. [ 45 ] CA is vague about whether Mr. Oshoweetok is dressed or undressed when the act of sexual intercourse takes place. CA claims that she does not see Mr. Oshoweetok removing his own pants. In court, CA insists that the sexual assault occurred within a very short time of entering the hotel bedroom.

It is not disputed that in a letter written by CA to the Church in 2012, CA described the alleged offence as having occurred after she had been in the room for some 10 minutes. [ 46 ] There is no real explanation on the evidence for why CA’s memory of the events immediately preceding the rape is so fuzzy. Even if CA was initially lulled into a state of non-resistance by the gentle nature of the push on to the bed (as alleged by her), it should have been clear to CA at the point her pants were being pulled down that mischief was afoot. Yet she is unable to say how, when, or even if Mr.

Oshoweetok pulled down his pants. She would have had every reason to note what Mr. Oshoweetok was doing from the point at which he started to pull down her clothing. There may be a valid explanation for this lack of detail, but it is not in evidence. CA was not examined on this point. D. Cross-examination of Mr. Oshoweetok [ 47 ] Mr. Oshoweetok testified in his own defence. He was not shaken in his cross-examination by the Crown. The Crown is unable to point to any part of Mr.

Oshoweetok’s testimony where he had overreached or overstated the facts being alleged by him. [ 48 ] Thirty years after the fact, it is unrealistic to expect a defendant (or a complainant) to remember all the details of a conversation that occurred in the distant past. If substantial details are provided, questions would inevitably be raised about the accuracy or sincerity of the speaker’s recollection. This is so particularly in circumstances where there are no memory aids available to a witness to assist in memory

recovery. While Mr. Oshoweetok did his best to outline details of the conversation he says he had with CA that led up to the act of sexual intercourse, it is not surprising that the details of this would be sparse. [ 49 ] Nothing said by Mr. Oshoweetok was so inherently implausible as to decisively undermine this accused’s credibility. It is not beyond the pale of common sense or human experience that an offer first extended by Mr. Oshoweetok to visit in the name of friendship could subsequently change into a desire for a close encounter of a physically intimate kind. Human motivation is not static.

It can change over time as circumstances change. IV. CONCLUSION [ 50 ] At the end of the day, in the absence of any independent evidence of any kind to verify which version of events is more accurate, the trier of fact in a case involving historic allegations is left entirely dependent upon cross-examination to find truth and uncover error or falsehood. The evidence of every witness is entitled to some weight unless there is a sound rational basis to question the sincerity or reliability of the witness’s observations.

In the absence of any significant damage to credibility or reliability sustained through the process of examination, the Court is unable to determine with the necessary degree of legal certainty who or what to believe. [ 51 ] In circumstances where oath is pitted against oath, there can be no safe basis to discount the evidence of a witness absent a damaging cross-examination. The demeanor of a witness while testifying is, by itself, an insufficient basis to find truth. There must be more. There is no magic in this.

The fact finding process requires more than shadowy mental operations dependent upon the trier of fact’s instinct or intuition. If the Crown wishes to pursue the prosecution of historic allegations in the absence of any independent evidence, then it is incumbent upon the prosecution to achieve some degree of success in its cross-examination of a defendant. [ 52 ] The alleged offense may have occurred as alleged by CA, but this is not the test for a conviction. As noted earlier, Mr.

Oshoweetok is entitled to the benefit of any reasonable doubt on an issue of credibility. [ 53 ] The Crown has not proved all essential elements of the offense beyond a reasonable doubt. This is the standard that must be applied. In the circumstances presented here, the law requires that I acquit. Dated at the City of Iqaluit this 20th day of July, 2015 ___________________ Justice R. Kilpatrick Nunavut Court of Justice