R v GN, 2022 NUCA 8

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v GN, 2022 NUCA 8 Date: 20221020 Docket: 08-21-019-CAP Registry: Iqaluit Between: His Majesty the King Respondent - and - G.N. Appellant Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim or the witness must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ The Court: The Honourable Justice Frederica Schutz The Honourable Justice Edith Campbell The Honourable Justice Dawn Pentelechuk _______________________________________________________

Memorandum of Judgment Appeal from the Conviction by The Honourable Justice S. Charlesworth Dated the 21st day of October, 2021 (Docket: 08-21-019) ______________________________________________________ Memorandum of Judgment _______________________________________________________ I.

Introduction [1] The appellant appeals his conviction for sexual assault and unlawful confinement. [2] The complainant was the appellant’s sister-in-law and testified at trial that the appellant arrived at her home intoxicated onSeptember 14, 2018, and had non-consensual sexual intercourse with her while her husband (the appellant’s brother) was passed out inanother bedroom.

She stated that the assault happened after the appellant dragged her into a bedroom, forcefully spread her knees apartcausing a tear to her inner thigh muscle and persisted despite her crying; the appellant thereafter tried to keep her on the bed and preventher from going to her husband. The complainant reported the matter to the RCMP two days later and underwent a medical examination;no pictures of injuries were taken by the RCMP, but the medical examination noted she was “very tender around [the] perineum”.

Thecomplainant’s husband, who did not provide a statement to police, died before the trial. [3] The appellant gave a cautioned statement to police upon arrest, and therein stated that due to intoxication he blacked out thenight of the incident, did not remember and “wouldn’t do that if [he] was sober”. He further stated: “I knew that what I did was wrongbut I didn’t really remember”, and “I know that she’s telling the truth”.

While the appellant raised issues with the voluntariness of hispolice statement, the trial judge ultimately found the statement admissible. [4] The appellant testified at trial and while admitting that he and the complainant had sexual intercourse three times on thenight of the incident, he maintained it was consensual.

He stated that he felt badly afterwards and sent text messages to the complainantapologizing multiple times and saying “[i]t won’t happen again”, not because their interactions lacked consent, but because he felt he haddisrespected his brother. [5] On appeal, the appellant argues the trial judge made numerous errors, including determining that the appellant’s statement topolice was voluntary, that there had been an injury to the complainant’s “vagina” and providing insufficient reasons for convicting theappellant of unlawful confinement. [6] For the reasons following, the appeal is dismissed. II.

Reasons of the trial judge [7] In the voir dire relating to whether the appellant’s police statement was admissible, the defence argued that the trial judgeshould have a reasonable doubt as to voluntariness because the appellant did not fully understand his “right to silence” and had not madea meaningful choice about whether to speak to the police. The trial judge reviewed the evidence of the interviewing officer, CstMcQuade, as well as the video of the two-hour interview; the appellant did not testify on the voir dire.

She found that the appellant hadfinished school at age 18, had no difficulty understanding or speaking English in the interview, and was properly responsive to thequestions being asked; he also indicated numerous times throughout the interview that he understood the advice of his lawyer “not to sayanything”. While the trial judge was “troubled” by Cst McQuade’s repeated statement to the appellant that he had the right to speak toher in the absence of a similar reminder about his constitutional right to remain silent, she determined the statement was voluntary andadmissible.

Specifically, the trial judge found that police have the right to persist in questioning even when an accused asserts the right tosilence, and Cst McQuade’s persistence and tactics in this matter did not rise to a level which would “shock[] the conscious of thecommunity”. [8] In convicting the appellant, the trial judge cited R v W(D), (SCC), [1991] 1 SCR 742, 63 CCC (3d) 397[W(D)], and found she did not believe the appellant’s evidence, nor did it raise a reasonable doubt.

The trial judge held that theappellant’s testimony “was generally consistent with his statement to the police including. . . both times he said that he was so intoxicatedthat he blacked out at times and could not remember everything that happened that night”; these statements were found to “cast doubt”on the appellant’s certainty about what he did or did not do to the complainant, as did his “agree[ment] that sometimes he behaves

differently when he is drunk”. [9] The trial judge otherwise found the remaining evidence proved beyond a reasonable doubt that the appellant sexuallyassaulted the complainant.

In particular, she found the complainant’s evidence to be consistent, including that she told the appellant “sheconsidered him a son, and . . . would not consent to have sex with him”, the “medical record did confirm an injury to her perineum”, andthe appellant’s text messages after the assault were “apologetic and implicitly inculpatory”. [10] On the unlawful confinement charge, the trial judge found the appellant guilty based on the complainant’s description of theappellant “pulling her into a bedroom against her will and holding her leg during the assault”. III.

Grounds of appeal [11] The appellant raises four grounds of appeal: 1. Did the trial judge err in finding that the appellant’s statement to police was voluntary and therefore admissible into evidence? 2. Did the trial judge use the wrong standard of proof to convict the appellant or reverse the burden of proof? 3. Did the trial judge misapprehend the evidence when she found there was evidence of an “injury to the [complainant’s] vagina”,although that was not in the complainant’s evidence or disclosed in the medical records? 4.

Were the trial judge’s reasons for conviction on the unlawful confinement charge insufficient? IV. Standard of review [12] As provided in R v Healy¸ 2020 ABCA 197 at para 34, determining whether a trial judge used the appropriate legal test forvoluntariness of an admission is a question of law, reviewable on a standard of correctness. The application of the correct test to a set offacts is a question of mixed fact and law, reviewable for palpable and overriding error.

See also R v Lavallee, 2018 ABCA 328 at para 9,367 CCC (3d) 486. [13] Questions of law also arise with respect to the burden of proof, but an alleged misapprehension of evidence attracts a morestringent standard of review. “Even if the error is readily obvious, to constitute an error of law, a misapprehension must go to thesubstance, not detail; be material, not peripheral to the trial judge’s reasoning; and play an essential role in the reasoning processresulting in a conviction” (citation omitted): R v Garford, 2021 ABCA 338 at para 12. [14] A review as to sufficiency of reasons is one that takes a functional approach.

Appellate intervention will only occur where the“reasons are so deficient that they foreclose meaningful appellate review” (citations omitted): R v Coreman, 2021 ABCA 107 at para 24.As the Supreme Court of Canada recently stated in R v GF, 2021 SCC 20 at para 79, 404 CCC (3d) 1, where ambiguities in the reasonsare open to multiple

interpretations, those consistent with the correct application of the law must be preferred on appellate review: . . . Where all that can be said is a trial judge may or might have erred, the appellant has not discharged their burden to show actual erroror the frustration of appellate review. Where ambiguities in a trial judge’s reasons are open to multiple

interpretations, those that areconsistent with the presumption of correct application must be preferred over those that suggest error: R. v. C.L.Y., 2008 SCC 2, [2008] 1S.C.R. 5, at paras. 10-12, citing R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514 (C.A.), at pp. 523-25. It is onlywhere ambiguities, in the context of the record as a whole, render the path taken by the trial judge unintelligible that appellate review isfrustrated: Sheppard, at para. 46.

An appeal court must be rigorous in its assessment, looking to the problematic reasons in the context ofthe record as a whole and determining whether or not the trial judge erred or appellate review was frustrated. . . . V. Analysis The trial judge did not err by reversing the burden of proof in the voir dire or infinding the appellant’s statement to police was voluntary and admissible [15] At trial, defence counsel conceded there was no evidence of threats, promises or inducements in the appellant’s policeinterview.

Rather, it was argued that the appellant did not fully understand his right to remain silent, that everything he said would betaken down and used as evidence against him, and that he could not make a meaningful choice about whether to speak to police, basedon issues with “possibly trickery, operating mind, and… with respect to police explanations which affected his operating mind”. [16] On appeal, the appellant argues the trial judge erred by concluding his statement was admissible because Cst McQuade’spersistent questioning would not “shock the community”.

He also submits the trial judge reversed the burden of proof on the applicationand discounted highly relevant local case law as to comprehension and voluntariness in the North when English is not an accused’s firstlanguage, namely R v Angootealuk, 2017 NUCJ 17, 141 WCB (2d) 615 [Angootealuk]. The appellant argues that despite exercising hisright to counsel and being advised not to speak, the Crown failed to prove that the statement was the product of a “meaningful choice”that entailed understanding the right to remain silent and the jeopardy flowing from the decision to speak to the police.

We are notpersuaded by these arguments. [17] First, at the outset of her reasons, the trial judge stated that the voluntariness of a statement must be proven “beyond areasonable doubt”. That the trial judge cast this test in terms of the appellant’s particular arguments that his statement was not voluntary

as he lacked a true understanding of the “’right to silence’... and... he could not make a meaningful choice to speak to the police officer”, did not represent a reversal of the burden of proof, which remained on the Crown.

No error of law occurred in this respect. [ 18 ] Second, defence counsel acknowledged there was no issue with threats, oppression, inducement or deliberate “trickery” by police; rather, as the trial judge found, the question was whether Cst McQuade’s “explanations regarding [the appellant’s] right to silence were insufficient and, therefore, affected his operating mind”, particularly in consideration of potential language difficulties and “deliberately confusing” statements made by Cst McQuade.

These concerns were at the forefront of the trial judge’s review of the two- hour recorded interview and the officer’s evidence on the voir dire , and her analysis as to whether the statement was ultimately admissible: . . . I appreciate and agree with many of the comments made by Justice Bychok in the case of R. v. Angootealuk . . . But [the appellant] finished school at about age 18, and throughout the interview, he was properly responsive to the questions.

As well, on many occasions throughout the interview, [the appellant] says words that indicate that he understood his lawyer’s advice to remain silent: “I can’t tell you that from my lawyer” and “that’s why my lawyer [] told me not to say anything” are two examples. Throughout the interview, Constable McQuade ignored those comments and kept on talking. So she could be sure to get his side of the story right, she says. . . [While] I’m troubled by the repeated explanation that [the appellant] had a right to speak to her, especially in the absence of a reminder of his constitutional right not to speak to her. . .

I’m also aware of the explanation of Justice Sharkey in R. v. Angutimarik , 2016 NUCJ 6 at Paragraph 61 that: . . . a suspect has the right to remain silent. He does not, however, have the right to be free of police questioning. The police are entitled to persist. This persistence and the tactics used must rise to the point of shocking the conscious of the community.

Having reviewed the statement carefully, in spite of the things that I don’t like about it, I do not find that that level was reached, and I find the statement admissible. [ 19 ] We are satisfied the trial judge neither misinterpreted the appellant’s concerns as argued, nor applied the wrong legal test. While the appellant urges us to reach a different conclusion, namely that Cst McQuade’s statements to him were sufficiently confusing or crossed the line, particularly given that English was not his first language and therefore impacted his right to silence, that is not the role of this Court.

As set out in R v SEV , 2009 ABCA 108 at para 17 , 448 AR 351, “[i]f a trial judge properly considers all the relevant circumstances, then a finding regarding voluntariness is essentially a factual one, and should only be overturned for some palpable and overriding error which affected the trial judge’s assessment of the facts”, citing R v Oickle , 2000 SCC 38 at para 71 , [2000] 2 SCR 3. See also the recent decision of the Supreme Court of Canada in R v Tessier , 2022 SCC 35 at paras 43 , 68.

We can find no such error in this matter, and the trial judge’s findings are entitled to deference. [ 20 ] In our view, it remains clear that the appellant knew why he was being interviewed, understood the accusations made by the complainant, had been cautioned by police and advised by his lawyer not to speak. It was open to the trial judge to determine, as the defence conceded, that there were no deliberate threats, inducements or oppression, and that the “trickery” being alleged was largely related to Cst McQuade’s statements pertaining to the “right to speak to her”, without a reminder of his right to silence.

The trial judge was not wrong to find that the police have the right to persist in their questioning, even in the face of an accused asserting the right to silence. She was also not wrong in finding that Cst McQuade’s conduct would not shock the community.

However, that was not the sole basis of her decision, which was that neither language comprehension nor police conduct impaired the appellant’s understanding of, and ability to, remain silent. [ 21 ] We further conclude the trial judge did not discount Angootealuk or the considerations therein; rather, she properly found that case distinguishable to the circumstances in this matter.

The trial judge, having listened to the appellant’s police interview and hearing Cst McQuade’s testimony, was in the best position to determine whether the appellant in all the circumstances had an operating mind, including determining whether any language difficulties or confusing statements by Cst McQuade may have had a bearing on his understanding of his jeopardy, his rights and his choice to speak to the police, or to stay silent. [ 22 ] This ground of appeal is dismissed.

The trial judge did not reverse the burden of proof in assessing the appellant’s evidence under W(D) [ 23 ] There is no merit to the appellant’s contention that the trial judge reversed the burden of proof when assessing the appellant’s evidence under the three-prong test in W(D) . Rather, she correctly found that as the appellant had testified, she must determine whether his evidence was to be believed or otherwise raised a reasonable doubt. [ 24 ] Sexual intercourse was admitted by the appellant, and the only live issue at trial was consent.

There were only two parties present at the time of the incident, and their testimony about what took place was entirely opposite as to consent. It is trite that deference is owed to a trial judge’s weighing of the evidence, including its reliability and credibility. In assessing the appellant’s testimony that the sexual intercourse was consensual, the trial judge was entitled to find that she did not believe the appellant, nor did his evidence raise a reasonable doubt.

More specifically, the trial judge found that the appellant’s evidence as to consent was unreliable based on his own admission of intoxication and memory problems in relation to the events; that she may have found those admissions credible or consistent as between his police statement and testimony, did not otherwise prevent her from finding his evidence lacked reliability.

The appellant stated both in his police interview and at trial, that he had alcohol-induced blackouts about that night; he further admitted that he sometimes behaved differently while intoxicated: “These admissions cast doubt on the certainty which [the appellant] can have in relation to what he did and did not force [the complainant] to do... and as such does not lead to a reasonable doubt.” There was no

palpable and overriding error in so finding. As the trial judge held, “[t]he analysis, however, must continue.” [ 25 ] The trial judge correctly went on to determine whether on the evidence she did accept, the Crown had proven the offences beyond a reasonable doubt. She reviewed the evidence of the complainant, the appellant’s text messages and the medical information, and determined the Crown had proven the sexual assault and unlawful confinement to the requisite standard. Again, this approach did not amount to reversal of the burden of proof.

Rather, the trial judge accepted the complainant’s “consistent” evidence of forced sexual intercourse after the appellant dragged her into a bedroom and confined her there, and no further explanations for rejecting the appellant’s evidence is required: R v REM , 2008 SCC 51 at para 66 , [2008] 3 SCR 3 ; R v Vuradin , 2013 SCC 38 at paras 13 , 19, [2013] 2 SCR 639. [ 26 ] This ground of appeal is dismissed. The trial judge did not err in materially misapprehending that there was evidence of an “injury to [the complainant’s] vagina discovered on exam” [ 27 ] In her

summary of the evidence, the trial judge provided that the medical report noted: “No obvious signs of trauma at this point, very tender around perineum”, the area between the vagina and the anus. She later returned to this medical information in assessing the complainant’s evidence of the sexual assault and found it to be consistent with the complainant’s version of the events: “The medical report did confirm an injury to her perineum”.

She ultimately assessed that evidence together with all of the evidence in determining whether the Crown had met its burden of proof: I believe the evidence shows beyond a reasonable doubt that [the appellant] sexually assaulted [the complainant].

Her close relationship with him, his recollection of her telling him of this relationship, the injury to her vagina discovered on exam , the apologetic and implicitly inculpatory text message sent to [the complainant] after the assault all leave with me no doubt that [the complainant] was the victim of a sexual assault. [Emphasis added] [ 28 ] While the trial judge referred to the noted “tender[ness] around [the] perineum” at the time of the medical exam, then later appeared to inadvertently interchange “perineum” with “vagina”, we agree with the Crown that this misapprehension of the evidence did not go to the substance rather than the detail of her reasons for conviction.

Read in light of the pivotal issues of consent and credibility, the submissions made and the evidence which the trial judge did accept, including the complainant’s testimony and the appellant’s text messages and police statement, we are satisfied any inadvertent reference to a vaginal injury did not taint the trial judge’s reasoning process. [ 29 ] This ground of appeal is dismissed.

The trial judge’s reasons for conviction on the forcible confinement were sufficient [ 30 ] Lastly, while it is arguable that the trial judge’s reasons for conviction on the unlawful confinement charge were sparse compared the rest of the decision, those reasons neither foreclose meaningful appellate review, nor fail to inform the appellant as to why he was convicted of that offence. The trial judge’s reasons must be viewed as a whole, and in the keeping with the issues and submissions raised at trial; here, consent. [ 31 ] In both her

summary of the evidence and her reasons, the trial judge found that the appellant had physically restrained the complainant from freely escaping the bedroom where he forced himself upon her. Having found the complainant’s evidence to be reliable and credible, there was ample evidence in the record to support a finding of unlawful confinement. [ 32 ] This ground of appeal is dismissed. V. Disposition [ 33 ] The appeal is dismissed. Appeal heard on September 20, 2022 Memorandum filed at Iqaluit, Nunavut this 20th day of October, 2022 Schutz, J.A.

Campbell, J.A. Pentelechuk, J.A. Appearances: G. Wool For the Respondent E. Tache-Green For the Appellant