R. v. Pattunguyak, 2021 NUCJ 43

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Pattunguyak, 2021 NUCJ 43 Date: 2021130 Docket: 15-19-98 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Patrick Pattunguyak __________________________________________________________________ Before: Madam Justice Charlesworth Counsel (Crown): G. Lyndon Counsel (Accused): A. Regel Location Heard: Baker Lake, Nunavut Date Heard: July 27-28, 2021 Matters: Trial decision in regards to a Criminal Code s.151 charge 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section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” 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 ] Patrick Pattunguyak is charged with having sex with a person under the age of 16 while he was 24 years old contrary to

Section 151 of the Criminal Code . It is alleged that between October 21, 2018 and October 27, 2018 Mr. Pattunguyak kissed the complainant a few times and had sex with her on one occasion. As a consequence of the charge, Mr. Pattunguyak was also charged with breaching two different recognizances he was on during that time period, by failing to keep the peace and be of good behaviour. His trial was held before me in Baker Lake on July 27 and 28, 2021. [ 2 ] At trial, the Crown called the complainant (“A”) as a witness as well as her parents. The defence called Mr.

Pattunguyak’s parents and one of his brothers. [ 3 ] Counsel agree that Mr. Pattunguyak is more than five years older than A, who was 14 years old at the time of the alleged offences. The victim said she told Mr. Pattunguyak how old she was prior to the offences taking place; that is not contradicted. Counsel agree that it was not possible in law for her to consent to any sexual activity with him. II. A’S EVIDENCE [ 4 ] A testified that she and her best friend, B, were drinking alcohol and looking at Facebook on or about the evening of October 21, 2018 when they saw Mr. Pattunguyak’s Facebook page.

They contacted him over Facebook and he suggested they come to his place. That night, A and B walked by his house but did not go in. A said there was a flash of light in his doorway but they got scared and walked on to B’s house.

[ 5 ] The next night, A smoked some weed and messaged Mr. Pattunguyak to see him in person. He was waiting outside his house and gave her a cigarette and asked if he could come closer. She did not know what to say and he kissed her on the lips. They went inside the house to his bedroom and talked, and then she went home. [ 6 ] The next night A messaged Mr. Pattunguyak again, asking to go over. He said to wait until 8 o’clock. She went to her cousin’s place and then to Mr. Pattunguyak’s house. They kissed again and he tried to touch her vagina above her clothes. She moved his hand and said he should not do that.

They watched some funny videos on an iPod. Mr. Pattunguyak tried to put his hand down her pants again; she did not know how to react. He asked her for sex and she said no. He asked if he could pay her, and she said no. They were lying on the bed; her shirt was going up and he tried to pull her pants down. She grabbed her pants with both hands and then went home. [ 7 ] The next day A returned to Mr. Pattunguyak’s house at about 8 o’clock. They kissed again and then he threw her on the bed and spread her legs while kissing her and touching her stomach. He pulled down her pants and had intercourse with her.

She did not know what to do and told him no. Mr. Pattunguyak was inside her for about ten minutes and then “went to the washroom or something”. A started to freak out; went to the washroom and saw blood when she wiped her vagina. She told Mr. Pattunguyak she was bleeding. After that she went to B’s house for the rest of the night. [ 8 ] When A went home the next day her dad was mad, so she went to her aunt’s house and asked to sleep there. She started feeling sick to her stomach and then started throwing up.

The next afternoon A’s mother took her to the Health Centre, and apparently was told that A had been raped, but the police were not contacted at that time. [ 9 ] Sometime in early November 2018, A tested positive for chlamydia and completed a Sexually Transmitted Infection Contact Investigation Form on November 16, 2018 (Exhibit 2). On it, she reported having had sexual contact with two people: the defendant who she listed as “Patrick Pattuk” and “Luke”.

A testified that “the second name was a lie.” I understood A to mean she purposely misstated the defendant’s surname to save him from getting in trouble as A’s mother was in the room at the time the STI contact form was being filled out. III. OTHER CROWN EVIDENCE [ 10 ] A’s mother gave evidence that before October 2018 A was a “normal young girl with lots of friends.” After October 2018 she became really angry and started drinking. On cross examination, the mother agreed that A was drinking and using drugs (marijuana) in the summer of 2018 as well. [ 11 ] A’s father described that he went over to Mr.

Pattunguyak’s home on the night of “the incident” because a girl told him A was there. He said he stormed into the house, infuriated, and saw Joy Pattunguyak there. He also saw Patrick coming down a hall with A’s arm over his shoulder and Patrick was pulling up her pants. He wanted to hit Mr. Pattunguyak, but just went up to him and said, “I’ll see you in Court.” [ 12 ] A’s father also testified that before that night A was a happy-go-lucky, loving girl but now she gets infuriated easily. IV. DEFENCE EVIDENCE [ 13 ] Mr.

Pattunguyak’s mother, Joy Nungnik, said she never saw A’s father in her home, and never saw Patrick in the house with any girl. Ms. Nungnik testified that at that time nine people lived in the home. She testified that her son Patrick was never alone in the home, especially in the evenings when Ms. Nungnik was always home. [ 14 ] Barney Pattunguyak, Mr. Pattunguyak’s father, said that he never saw A in the house. He also testified that there were nine people

living at the house and Patrick was never in the house alone. He said Patrick could not have a girl there without them knowing about it. [ 15 ] Mr. Pattunguyak’s brother, Danny, was living at the family home in October 2018. He testified that he never saw “that girl” at the house. He denied knowing that his brother and A had any sort of relationship, and said he never fought or shouted at his brother, Patrick. V. POSITIONS OF THE PARTIES [ 16 ] The defence argues that there are several reasons to doubt the evidence of A.

First, it argues that the statement A gave to Constable McLaughlin of the RCMP on April 1, 2019 shows that A’s story has evolved considerably since it was first told. That should impact the reliability of her evidence. [ 17 ] The defence also points out that B was not called as a witness by the Crown, no Facebook messages were produced as evidence, A did not write Mr. Pattunguyak’s full name on the health form, and no one saw her at Mr. Pattunguyak’s home.

As well, the complainant acknowledged being high on alcohol and/or drugs often at that time, and her memories had to be pieced together because of her intoxication. [ 18 ] I am urged to disbelieve A’s father’s evidence about being in the Pattunguyak residence and seeing his daughter there with Mr. Pattunguyak. No other witness describes that situation, and A’s father said that the police told him not to take A to the RCMP detachment, despite what he saw.

The defence says this makes no sense. [ 19 ] Finally, the defence argues that A’s evidence is so inconsistent that I should find it to be unreliable, and because it was not corroborated in any way, I should find that the Crown has failed to prove the case beyond a reasonable doubt. [ 20 ] Mr. Pattunguyak did not give evidence, as he is absolutely entitled to do.

The burden remains always on the Crown to prove guilt beyond a reasonable doubt. [ 21 ] The Crown argues that the main witness was trying her best to answer the questions in court, her answers were quite particular and there is no reason to doubt her testimony. A provided more detail in her testimony than in her statement to the police, but they are not contradictory. V. DECISION [ 22 ] I agree with the defence that it seems unusual that the RCMP would tell the father not to bring A to the station immediately after the incident.

However, that may have simply been because there are better places to interview a young witness about a sexual offence. It certainly is unfortunate that nothing seems to have been done by the police close to the time of the assault to speak to A. [ 23 ] A’s father’s evidence about seeing his daughter at Mr. Pattunguyak’s house stands alone among the other evidence I heard, except possibly A’s evidence about his mood the next day. I would not expect A to remember her father’s presence, given the condition he said she was in, and I would not expect Mr.

Pattunguyak’s family to confirm it. [ 24 ] However, I agree with the Crown that Mr. Pattunguyak’s family seemed to be exaggerating the “never alone” aspect of their busy home. For instance, both Ms. Nungnak and Mr. Pattunguyak, Sr. said there were nine people living in the home and both named or gave the relationship of the people in the home. The names/relationships were the same between both witnesses, but I only counted seven people, not nine. [ 25 ] The most important evidence was A’s testimony.

A’s statement to the RCMP given on April 1, 2019, was filed as Exhibit 1 on agreement of counsel so I could read it and consider the differences between that statement and her testimony. The differences pointed out by the defence, ones I determined myself, and my responses to them are:

A. There was no mention of going by Mr. Pattunguyak’s house with B and seeing a flash. [ 26 ] That incident actually is recounted in the long paragraph on page 5 of the statement. I do not believe the evidence is substantially different from her evidence at trial, it is just that A started the statement at a different point in time and then went back to describe the night with B and the flash. B. In the statement, A does not talk about any force being used, or seeing blood. [ 27 ] Unfortunately, A did not give any details about the occasion of intercourse during the statement.

Rather, she said she was stoned at the time and did not really remember what happened. A testified that she remembered more about the night as time went on, after giving the statement. The lack of detail is not a contradiction and was explained by the witness. C. Other differences between the statement and A’s evidence: [ 28 ] I note that there were details in the statement about what Mr. Pattunguyak was wearing the first night she went to his house; those questions were not asked in the trial and seem irrelevant in any case. [ 29 ] In the statement, A said that the first night she was at Mr.

Pattunguyak’s house they talked and watched a funny video. According to the statement, they were watching that video again when Mr. Pattunguyak kissed her for the first time, and she kissed him back. It is not clear whether she is referring to different nights in the statement. At trial, A did not describe a night when she only talked to Mr. Pattunguyak at his house. Even if there was no kissing on the first night and that was what she was describing in her statement, it is not a discrepancy that I find important. [ 30 ] At trial, A talked about exchanging necklaces with Mr.

Pattunguyak after the intercourse between them and that is not in her statement. As noted above, the description in the statement about what happened the night the intercourse happened is lacking many details. [ 31 ] I do not find the differences between the statement and the testimony to be material – they do not raise a doubt within A’s evidence. [ 32 ] Aside from A’s evidence, the most helpful evidence for me is the STI Contact form. I find A’s evidence about being fearful to complete the form because her mother was in the room to be reasonable.

I note that the first surname on the form is “Pattuk”, which I find A used as a contraction for the accused’s full name, because she was afraid of her mother’s possible reaction. The second person’s name on the form is also incomplete: it just says, “Luke”. According to the form, Patrick Pattuk was contacted by the Health Centre and advised of his apparent sexual contact with a person who had tested positive for chlamydia.

This does not cause me to doubt A’s evidence. [ 33 ] In all of the circumstances I find the Crown has proven beyond a reasonable doubt that Patrick Pattunguyak is guilty of touching A, a person under the age of 16, for a sexual purpose, that is kissing and having sexual intercourse between October 21 and 27, 2018. Because he therefore breached the peace and was on two separate recognizances, I also find him guilty of two counts of breach of recognizance. Dated at the City of Iqaluit this 30th day of November, 2021

___________________ Justice S. Charlesworth Nunavut Court of Justice