R. v. J.N., 2015 NUCJ 29

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. J.N., 2015 NUCJ 29 Date: 20150921 Docket: 08-14-244; 08-15-74 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: J.N. ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Crown): A. Dion/Z. Horricks Counsel (Accused): J. Park/J. Thompson Location Heard: Iqaluit, Nunavut Date Heard: April 17, 2015; June 18, 2015 Matters: Criminal Code, s. 145 ; s. 151 ; s. 173(2) x2 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section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” 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 to indicate locations. I.

INTRODUCTION [ 1 ] J.N. is charged that he: • Between January 1, 2010, to December 31, 2013, did for a sexual purpose expose his genital organ to M.N., a person under the age of 16, contrary to s. 173(2) of the Criminal Code of Canada, RSC 1985, c C-46 [Criminal Code]; • On or about March 21, 2014, did for a sexual purpose touch M.N., a person under the age of 16, directly with a part of his body, to wit his hand on her vagina, contrary to

section 151 of the Criminal Code ; • On or about February 15, 2015, did for a sexual purpose expose his genital organs to M.N., a person under the age of 16, contrary to section 173(2) of the Criminal Code ; • On or about February 15, 2015, did breach his undertaking for communicating with M.N. when he was on conditions not to have any contact with her. [ 2 ] At the outset of the trial, the Crown made an application to amend the count of indecent exposure, alleged to have occurred on February 15, 2015, by deleting the named complainant and adding the names of other individuals.

Counsel’s reason for doing this was that, although the complainant was over 16 years of age at the time of the alleged offence, there were other young people present. [ 3 ] The application to amend was denied. As a consequence, the Crown concedes that there cannot be a conviction on that count, and it is therefore dismissed.

II. EVIDENCE [ 4 ] The Court heard from one witness, that being the complainant. She was 16 years old at the time she testified. [ 5 ] The complainant, M.N., lives with her mother and, for approximately the last six years, the accused, who is the mother’s boyfriend, also lived with them. There are also younger siblings. Throughout her testimony, the complainant described a chaotic household where alcohol abuse is a daily occurrence. She also described moving frequently between various houses and the shelter. [ 6 ] The complainant testified to 6 incidents involving the accused. These are detailed below. A.

Incident #1 [ 7 ] The first incident is alleged to have occurred 3-4 years ago, when the family was living at House X. The complainant was 12 years old. Her mother was not home at the time. The complainant was sleeping in her bedroom, which she did not share with anyone. She testified that she awoke to the accused calling her name. He was seated on the arm of an armchair that was located next to her bed. He was masturbating and told her to watch. The complainant testified that she turned away from him and pretended to be sleeping.

The accused told her not to tell her mother and left the room. [ 8 ] According to the complainant’s testimony, her mother came home and while the accused was outside of the house for a cigarette, the complainant told her mother what had happened. The complainant testified that her mother was angry and locked the accused out of the house B. Incident #2 [ 9 ] The complainant testified to a second incident at House X. She testified that she had a different bed at the time, but was still in the same bedroom. She testified that she awoke “to the same feeling from when [J.N.] was doing that”.

She testified that she saw him in the hallway, about 5-6 feet from her bed, and that he was looking at her and masturbating. She said to him, “what the fuck are you doing”, at which point the accused ran to the living room and the complainant closed and locked her bedroom door. The next day she told her mother. Her mother did not, however, believe her. C. Incidents #3 & 4 [ 10 ] The next two incidents the complainant testified about are alleged to have occurred when the family was living at the apartment. [ 11 ] It is noteworthy that the family lived at the apartment on two different occasions.

The first time they lived there was during a period when the complainant's mother was pregnant with the complainant's younger brother. The second time was after her brother had been born. In talking about these incidents, the complainant was sometimes confused or unsure as to dates and chronology as she attempted to relate the incidents to the birth of her younger brother. [ 12 ] The complainant testified about an incident that occurred while her mother was pregnant. The complainant and her mother were sleeping in her room. The complainant woke up to the noise of someone masturbating and saw the accused.

He was masturbating. She testified that when he realized that she had seen him, he first tried to hide,s but then moved back to the same spot. [ 13 ] She also testified that, on another occasion, she was sleeping in the living room. Her younger brother was crying and she could not understand why the accused was not attending to him. She testified that she felt someone was kneeling on her bed and she heard “that

noise”, referring to the sound of someone masturbating. She did not look as she was frightened, and so cannot be sure as to what was actually happening. D. Incident #5 [ 14 ] The complainant testified to an incident at House Y in March of 2014. She was drinking with the accused, her mother, a cousin, and possibly her grandfather. They drank a 60 oz. bottle of vodka. She testified that she fell asleep next to her mother on the bed in the living room and awoke to the accused digitally penetrating her while also masturbating. He was sitting on a footstool right next to the bed.

The complainant's younger siblings were awake and playing in the living room/kitchen area. The complaint testified that she went downstairs. Shortly after, her aunt called and asked her to babysit so she left the house. [ 15 ] The complainant was cross-examined on the statement she gave to the police regarding this incident. She had told police that the accused had touched her, but she could not recall if he went inside her. The complainant did not recall saying that to the police. E.

Incident #6 [ 16 ] The next incident to which the complainant testified took place just a few months before the trial, again at House Y. The complainant testified that she was in the house with the accused, her mother, her two younger siblings, and two other relatives. The accused was trying to be intimate with her mother, but her mother did not want to because everyone else was still awake. The complainant testified that the accused was on the bed and that he started to masturbate.

The complainant and some of the other adult relatives kept the children in the kitchen area so they could not see him and the complainant called the police. III. SUBMISSIONS [ 17 ] The issue in this case is to what extent, if any, I can rely upon the evidence of the complainant. A. Crown [ 18 ] The Crown submits that the complainant was a credible witness. That she expressed uncertainty at times simply shows that she was being truthful and was neither embellishing, nor exaggerating. The Crown submits that the Court should rely upon her evidence. B.

Defense [ 19 ] The Defence has put forward a number of reasons as to why the complainant's evidence should not be relied upon. [ 20 ] First, the Defence submits that the complainant is motivated by animus towards the accused. Defence Counsel submits that the complainant blames the accused for facilitating her mother's drinking and made up these allegations in order to put an end to their relationship. [ 21 ] The Defence also points to the lack of corroboration of the complainant's evidence and submits that there are internal inconsistencies in her evidence.

The Defense submits that these reasons are cause for finding her evidence unreliable. [ 22 ] In relation to Incident #5, the Defence argues that, given the intoxication of the accused as described by the complainant, the Court should have a reasonable doubt as to whether the accused had the specific intent necessary for sexual interference or whether his intent

was to touch the complainant's mother. It is further submitted that the complainant’s level of intoxication during that incident shouldraise concerns about the reliability of her evidence. IV. ANALYSIS [23] The complainant presented as a credible witness. She did not appear to be trying to exaggerate the evidence and she readily testifiedto uncertainties. One such example is in relation to Incident #4, where the complainant testified that, although she thought the accusedwas masturbating, she could not be certain.

She sometimes struggled to relate the evidence to specific events in an attempt to provide anaccurate chronology. This is to be expected, however, given the number of incidents testified to, the passage of time, and thecomplainant’s youth. In my view, it does not detract from her credibility or reliability. [24] What weight, if any, can be given to the failure of the accused to testify? [25]

Section 4 of the Canada Evidence Act, RSC 1985, C c-5, prohibits a judge or prosecutor from commenting to a jury on the failureof an accused to testify. This does not mean, however, that the trier of fact, whether a jury or a judge sitting alone, cannot weigh thisfactor into the balance when considering whether or not to accept evidence (R v B(JN) (1989), (MB CA), 56 Man R(2d) 215 (CA), 48 CCC (3d) 71; aff’d on other grounds (SCC), [1991] 1 SCR 66, 71 Man R (2d) 156 (B(JN)). [26] In B(JN), the Court of Appeal for Manitoba stated: The Crown must always prove its case against the accused.

Unlike some other systems of law, ours does not require an accused person todeny the commission of the offence, apart from the entry of a formal plea, or to explain his conduct. It would be quite wrong for a trierof fact, or this court, to consider the accused's failure to testify as a fact giving rise to an inference of guilt. Nonetheless, the failure of the accused to testify may become relevant once the Crown has introduced evidence which, if believed,satisfies the trier of fact of guilt to the necessary extent.

In deciding whether to believe the Crown’s witnesses, the trier of fact willinevitably consider the absence of a denial by the accused or, if there are proven facts that are capable of being explained in a mannerconsistent with innocence, the absence of such an explanation. [27] As was previously stated, I found the complainant to be a credible witness. Subject to frailties in her testimony which might renderher evidence unreliable, I accept her evidence. A.

January 1, 2010 to December 31, 2013 - charge of indecent exposure (incidents 1, 2, 3, & 4) [28] With respect to Incidents #1, 2, and 3, I accept the complainant's evidence and find that it establishes the accused’s guilt beyond areasonable doubt. [29] With respect to Incident #4, the complainant testified that, while she thought the accused was masturbating in her presence, she didnot actually look at him and cannot be sure. As a result, this incident was not proven and is not considered to be a part of the factssupporting the conviction on this charge. B.

March 21, 2014 - touching for a sexual purpose (incident #5): [30] I must consider whether, given that Incident #5 was said to have occurred in the presence of adults, the lack of corroboratingevidence renders the complainant's evidence unreliable.

[31]

Section 274 of the Criminal Code states that corroboration is not required for a conviction on a sexual offence and that judges mustnot instruct juries that it is unsafe to find an accused guilty in the absence of corroboration. [32] This does not, however, mean that the trier of fact is not able to consider the presence or absence of corroboration in determiningthe weight to be given to evidence (R v Camp (1977), (ON CA), 17 OR (2d) 99 (CA), 79 DLR (3d) 462; R v Saulnier(1989), (NS CA), 89 NSR (2d) 208 (CA), 7 WCB (2d) 178). [33] I place little weight on the failure of the mother to provide corroborating evidence in relation to Incident #5, given thecomplainant’s testimony that her mother neither supported her, nor took steps to deal with the allegations after they were brought to herattention. [34] In relation to Incident #5, the evidence is that everyone, including the complainant, was drinking.

While I am suspicious of theaccused’s behaviour, I find that the level of drinking, coupled with the peculiar circumstances of the accused engaging in sexual conductin front of so many people, including his partner, raises concerns. I find that it would be dangerous to convict on this evidence andaccordingly, I find the accused not guilty. C. February 15, 2015 - charges of touching for a sexual purpose and breach of undertaking (incident #6) [35] As was previously stated, the charge in relation to Incident #6 requires that the complainant be under the age of 16.

Since thecomplainant was over the age of 16 at the time, the charge of sexual touching from February of 2015 is dismissed. [36] There is ample evidence, which I accept, that the accused was in the presence of the complainant while on conditions to not haveany contact with her. The accused is therefore guilty of the breach of undertaking that arose on February of 2015. V.

CONCLUSION [37] To summarize, I find as follows: As regards Court File # 08-14-244, on Count #1 (touching for a sexual purpose), occurring March 21, 2014 Not guilty As regards Court File # 08-14-244, on Count #2 (indecent exposure), occurring January 1, 2010 to December 31, 2013 Guilty As regards Court File # 08-15-74, on Count #1 (indecent exposure), occurring February 15, 2015 Not guilty As regards Court File #08-15-74, on Count #2 (breach undertaking), occurring February 15, 2015 Guilty Dated at the City of Iqaluit this 21st day of September, 2015

___________________ Justice S. Cooper Nunavut Court of Justice