R. v. Nauya, 2018 NUCJ 18

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Nauya, 2018 NUCJ 18 Date: 20180716 Docket: 18-14-139 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Lee Jordan Nauya ________________________________________________________________________ Before: The Honourable Mr. Justice Earl Johnson Counsel (Crown): Sarah Argna’naaq Counsel (Accused): William McNair and Iman Amin Location Heard: Iqaluit, Nunavut Date Heard: In writing Matters: Sentencing for Criminal Code of Canada , RSC 1985, c C-46, ss. 273.1 (2) (

b) offence. 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section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” SENTENCING JUDGMENT FACTS I. LAW [ 1 ] The accused was convicted of sexual assault by a jury in Rankin Inlet on May 30, 2018. [ 2 ] Since a jury, unlike a judge, does not give reasons for its verdict, I invited submissions from Counsel about the facts that should form the basis for sentencing submissions to be held at a later date.

[3] I noted the comments of Chief Justice McLaughlin at paragraphs 16 to 18 of R. v Ferguson, 2008 SCC 6, [2008] 1 SCR 96 asbeing helpful. She stated: [16] This poses a difficulty in a case such as this, since, unlike a judge sitting alone, who has a duty to give reasons, the jury gives onlyits ultimate verdict. The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from the issuesbefore the jury and from the jury’s verdict.

This may not require the sentencing judge to arrive at a complete theory of the facts; thesentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case athand. [17] Two principles govern the sentencing judge in this endeavour. First, the sentencing judge “is bound by the express and impliedfactual implications of the jury’s verdict”: R. v. Brown, (SCC), [1991] 2 S.C.R. 518, p. 523.

The sentencing judge “shallaccept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty” (Criminal Code, s. 724(2)(a)), and must notaccept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), (MB CA),95 C.C.C. (3d) 443 (Man. C.A.). [18] Second, when the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow thelogical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v.

Fiqia (1994),1994 ABCA 402 , 162 A.R. 117 (C.A.). In so doing, the sentencing judge “may find any other relevant fact that was disclosedby evidence at the trial to be proven” (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge mustbe convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencingjudge must be persuaded on a balance of probabilities: ss. 724(3)(

d) and 724(3)(e); see also R. v. Gardiner, (SCC),[1982] 2 S.C.R. 368; R. v. Lawrence (1987), (ON SC), 58 C.R. (3d) 71 (Ont. H.C.). It follows from the purpose of theexercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand.The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues. [4] Defence Counsel agreed, this guidance from the Supreme Court was consistent with

section 724 of the Criminal Code of Canada,RSC 1985, c C-46 [Criminal Code]. The Court must find the straightest line that effectively leads to the finding of guilt that the jurymust have adopted to reach the guilty verdict. Any other aggravating facts required the Court to engage in a further weighing of theevidence. [5]

Section 724 states:

(2) Where the court is composed of a judge and jury, the court (

a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and (

b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either partywith respect to that fact. [6] The straightest line to the jury’s guilty verdict is to apply Criminal Code

section 273.1 (2)(

b) and find that the accused had sexwith the complainant when she was intoxicated and legally incapable of consenting, therefore sexually assaulting the complainant. II. ALLEGED AGGRAVATING FACTS [7] The Crown submitted four additional aggravating features, which could be inferred from the verdict, but were disputed by theaccused. [8] First, the complainant was not only too drunk to consent, consistent with Criminal Code

section 273.1 (2)(b), but that she wasactually unconscious and, therefore, physically unable to consent. [9] Second, the accused convinced the complainant to come to the nickel mine with the preconceived intention of getting her drunkenough to take advantage of her. In other words, there was planning and premeditation in forcing or luring her to the nickel mine.

[ 10 ] Third, the accused in fact poured liquor down the complainant’s throat in order to carry out the intention to have sex with the complainant. [ 11 ] Fourth, the accused dropped the complainant at the roadside with the intention of evading criminal liability. III.

DEFENCE SUBMISSIONS [ 12 ] Defence Counsel submits that the jury had sufficient evidence to conclude that the complainant was too drunk to consent, but insufficient evidence to conclude that she was unconscious. [ 13 ] Defence Counsel argues that it is more difficult to assess the accused’s intention when he invited the complainant to go to the nickel mine. The complainant testified that she was implored, peer pressured, or invited to go to the nickel mine. However the invitation is construed, she believed that his intention was to get her drunk.

The accused denied that intention. [ 14 ] The allegation that Angoo (Dude) held the complainant’s arms behind her back while the accused poured liquor down her throat was denied by the accused and he was not moved from that position in cross-examination. To accept the allegation, the Court must make a finding on the reliability and credibility of the complainant’s evidence. Defence Counsel submits that the complainant’s evidence was subject to some frailties.

She maintained that she didn’t know what was going to happen there, which is inconsistent with her evidence that they started drinking before they left the Northern Store. She was also inconsistent with respect to the amount of alcohol that was present. Defence Counsel submits that this could perhaps be construed as an attempt to reduce her own agency in the decision-making.

That she wanted it to appear that she was unaware and not a willing participant, or was naive or deceived. [ 15 ] It is open for the Court to conclude that there was a long time line between the time when the complainant was forced to drink and when she ultimately blacked out. There was a lot of drinking, laughing, and having a good time in between.

Defence Counsel’s submission is that this evidence fatally undermines the conclusion that she was forced to drink. [ 16 ] Defence Counsel submits that the Court could find that the complainant was a reluctant participant without concluding that it was the accused’s intention to get her drunk and take advantage of her. There could have been peer pressure and there could have been coercion. There could have been peer pressure because they wanted to get drunk with her. But, it would be a step further to impute some nefarious intent to the accused.

The complainant’s credibility was not such that the Court could find that beyond a reasonable doubt. [ 17 ] Although Defence Counsel admitted that it was unsavoury and disgraceful for the accused to leave the complainant beside the road, Counsel disputes that the accused’s actions can be interpreted beyond a reasonable doubt as proving he did so to escape criminal ability. IV. CROWN SUBMISSIONS [ 18 ] The Crown submits that it is open for the Court under

section 724.2 (

b) to make findings of any other relevant fact that is disclosed by the evidence. [ 19 ] The Crown conceded that there was no evidence before the Court that the complainant was conscious or unconscious. [ 20 ] With respect to the accused’s intentions, the Crown emphasized that the accused admitted in cross-examination that he found the complainant attractive and wanted to hang out with her a bit. If the Court accepts the complainant’s evidence, that initially she did not want to drink but was then pressured or coerced, then it would be open to the Court to draw the conclusion that the accused had the intention of getting her drunk in order to take advantage of her.

[21] The Crown submitted that the Court could infer that the accused’s actions in leaving the complainant beside the road were anattempt to escape criminal liability. [22] In reply, Defence Counsel submitted that it was important to note that the accused spoke to the police shortly after the complainantwas found and admitted the sexual act. This contradicts the inference that he was trying to escape liability. V.

ANALYSIS [23] The Crown conceded that there was no evidence to support the conclusion that the complainant was unconscious during the sex.She was in a blacked out state and cannot remember what happened after she started drinking. This does not mean she was incapable ofconsenting. As noted by Crosbie J. at paragraphs 103 and 104 of R v CP, 2017 ONCJ 277 , the effect of alcohol inducedamnesia or a blackout was considered by Justice Ducharme in R v JR, (ON SC), [2006] OJ No 2698 (SCJ).

Headopted the words of Major J. in R v Esau (1997), (SCC), 116 CCC (3d) 289 at 296 (SCC), stating, “...Absent expertevidence, a loss of memory or a ‘blackout’ is direct evidence of nothing except the fact that the witness cannot testify as to whathappened during a particular period.” [24] In his testimony, the accused described consensual sexual intercourse with the complainant who was conscious. That evidence isnot contradicted. However, the complainant said she did not want to have sex and the jury believed her.

To arrive at the verdict, the juryhad to conclude that she was so drunk that she was incapable of consenting even though she may have been conscious. As I stated in thecharge: She testified that she had a blackout and cannot remember what happened. One possibility is that she did not resist because she waspassed out or so drunk that she did not know what she was doing.

If you accept this scenario, then she was incapable of consenting to thesex. [25] The complainant was a credible witness and the jury clearly accepted her evidence, over the accused, to come to the guilty verdict.However, there were a number of contradictions in her evidence that were confusing. In examination-in-chief, she said the accusedshowed her the bottle of alcohol behind the Northern Store and then told her to come with them – the accused and Dude. She went alongwillingly.

When they got to the nickel mine, the accused forced her to drink by having Dude hold her hands behind her back while theaccused poured some alcohol down her throat. In cross-examination, she said that they had started drinking when they were behind theNorthern Store and it was there that she told them that she did not want to drink. They then went to the nickel mine where she told themshe did not want to drink again, but was then forced to do so. [26] There were some problems with the

interpretation that may explain the contradiction. She may also have given in to pressure todrink behind the Northern Store and then wanted to stop when she got to the mine because she knew she had a problem with alcohol andcould not control herself once drunk. However, she was consistent in maintaining that the accused forced her to drink at the mine byholding her hands behind her back. If she did voluntarily drink a small amount behind the Northern Store, I am satisfied that she did notwant to drink any more when she got to the mine because she knew, from past experience, what alcohol did to her.

She had been soberfor 6 months and did not want to lose control. The accused and Dude then pressured her to drink more as she described it. Once theeffects of the alcohol started to kick in, the complainant lost control and she freely drank and partied with the accused until she ended upin a blackout state in a hospital in Winnipeg. [27] I do not accept that the evidence supports the conclusion that the accused had a premeditated plan. He was opportunistic. He had abottle of alcohol and approached the complainant. She knew him as an acquaintance and her planned meeting with Glen junior had notmaterialized.

The accused and Dude asked for a cigarette and went behind the Northern Store for a smoke. While behind the store, theaccused showed the complainant the bottle of alcohol. She may have had a sip and the accused invited her to the nickel mine. When theygot to the nickel mine, the complainant resisted drinking and was forced to drink by the accused. [28] The actions of the accused in leaving the complainant beside the road fall in the category of post offence conduct.

As noted by theSupreme Court of Canada at paragraphs 39 and 40 in R v Jaw, 2009 SCC 42, [2009] 3 SCR 26, post offence conduct has limitedprobative value. The jury was instructed on it and it is impossible for me to determine whether it played any

part in the sentencing. Theaccused’s post offence conduct is not an aggravating factor in the sentencing of the accused.

Dated at the City of Iqaluit this 16th day of July, 2018 ___________________ Justice Earl D. Johnson Nunavut Court of Justice