R. v. J.A., 2015 NUCJ 04

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. J.A., 2015 NUCJ 04 Date: 20150119 Docket: 21-12-186 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: J.A. ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Crown): Chris Punter Counsel (Accused): Paul Falvo Location Heard: Cambridge Bay, Nunavut Date Heard: September 23-25, 2014 Matters: Criminal Code, s. 271 (x2) REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Restriction on Publication: By court order made under

section 486.5(1) of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” Amended Decision: An amended decision was issued on January 28, 2015; the corrections have been made to the text and the amendment is appended to this judgment. I. INTRODUCTION [ 1 ] Mr. J.A. is charged with two counts of sexual assault. The complainant is his relative, who was 17 at the relevant time and living in the same house as Mr. J.A.. It is alleged that on October 23-24th, 2012, Mr.

J.A. had sexual intercourse with his relative on two separate occasions, in the house they shared, without her consent, and at a time when others in the house were incapacitated due to the consumption of alcohol. II. EVIDENCE A. Crown [ 2 ] The complainant testified that in October of 2012, she was living with her grandmother. Also living in the home were the accused, who is her relative, his girlfriend, and, for a short time, another couple. [ 3 ] The complainant was living in her grandmother's home because she was encountering difficulties in her parent's house.

There was evidence that she was often picked on and treated badly in her parent's house. The complainant also testified that she struggled with alcohol and this was causing problems in the family home. [ 4 ] The complainant testified that on October 23, 2012, the accused, his girlfriend, her grandmother, and she were in the home drinking vodka. They started drinking in the living room and then moved to the room that the accused shared with his girlfriend. Everyone was drunk. Once her grandmother and the girlfriend of the accused had passed out, the accused told her to go to the bathroom and he took her there.

Once there he closed the bathroom door and had sexual intercourse with her. During the intercourse, she was face down on the floor and the accused was behind her. He used a condom. The complainant did not want to have sex with the accused and told him so more than once. She called out to the women in the bedroom, but they did not come as they were passed out. When he had finished the accused told her not to tell anyone and he left the bathroom. [ 5 ] After the incident, the complainant left the house and ran out on to the sea ice. She was young, she was upset, and she was drunk.

The RCMP located her on the sea ice and took her into custody. The complainant believes that the RCMP were looking for her because

her grandmother became concerned for her and contacted them. The complainant spent the night in the drunk tank and was released thefollowing day, October 24, 2012. [6] The complainant testified that when she returned to her grandmother's, after being in the drunk tank, people in the home werestill drinking. She had a shower and was going to leave the house, but her grandmother wanted her to stay. The complainant wasencouraged by the adults, including the accused, to drink and she testified that the accused even held a cup to her mouth to get her todrink.

She testified that they were drinking in the living room and that when her grandmother and the girlfriend passed out, the accusedtook her to his room. He proceeded to have sexual intercourse with her on the bed. Again, he used a condom. When he was done he gaveher $60, which she left on the bed. [7] The complainant agreed that she was drunk and was blacking out at times.

She testified to having a poor memory. [8] The Crown also called as a witness a civilian employee of the RCMP who confirmed that, according to the records kept by theRCMP, the complainant was booked into the cells in the early morning hours of October 24, 2012. The records indicate that the accusedwas not in cells at that time or during the few days preceding and following October 23, 2012. The records indicated the accused wasbeing held in cells on November 2, 2012. B. Defence [9] The Defence called a number of witnesses, however, the only witness who had any relevant evidence was the accused.

It wasclear from the demeanour and the evidence of the other Defence witnesses that they had little or no idea as to why they were being calledupon to testify. They presented as reluctant to be involved in the matter and, in particular, reluctant to say anything against the accused. [10] The accused testified that on the evening in question, he and his girlfriend were at a friend's house playing radio bingo. They hada few drinks there. When they returned home his girlfriend called the RCMP. The reason for calling the RCMP was not clear. When theRCMP arrived his girlfriend asked that they take her in to custody.

However, the accused, out of concern for his girlfriend's safety whilein custody, asked that they take him instead.

The RCMP agreed and, as a consequence, he spent the night in RCMP cells. [11] As the trial progressed it seemed that everyone moved from discussing the evening of October 23 to the evening of October22nd, although it is apparent that everyone was referring to the night of the radio bingo, the night the complainant spent in cells, and thenight the accused purported to spend in cells. [12] The accused testified that he was released from custody the following day around noon and, when he returned home, thecomplainant was in the porch of the house preparing to go to work.

He told her that he had been in the drunk tank the previous night andshe responded by saying that she had been there as well. He testified that the encounter in the porch was the only time he saw thecomplainant over those couple of days. He denies drinking with her and denies sexual activity with her. [13] It is clear that on October 24th, the accused picked up a liquor order of 9, 60 oz. bottles of vodka from the airport. III. ANALYSIS [14] This case turns on credibility. I must apply the approach set out by the Supreme Court of Canada in R v W(D), [1991] 1 SCR742, (SCC).

If I accept the evidence of the accused or if his evidence raises a reasonable doubt, then I must acquit. Evenif I reject his evidence or if his evidence does not raise a reasonable doubt, I must go on to consider the balance of the evidence andconsider whether, based on the evidence, I do accept that the Crown has proven its case beyond a reasonable doubt. [15] The evidence of each witness is not to be considered in isolation. Evidence must be assessed in the context of all of the evidence.

A. Alibi evidence [16] The Defence of the accused hinges in large part upon his having been in RCMP cells on the evening of October 23, 2012.Although he was not charged with the offences until approximately one month after they are alleged to have occurred, he maintains thathe was in custody at the relevant time and, therefore, the incidents could not have happened as alleged. [17] The RCMP record and document every individual who is brought in to custody. The evidence is that the records consist of threeparts, which are essentially an internal check. Each prisoner is given a number.

The numbers are assigned consecutively. It is theprisoner number, not the prisoner's name, that is used in the guard log book in the cells. There is also a Prisoner Report, or C13, which iscompleted for each prisoner. [18] The accused recalled being in custody on two occasions in 2012: once on October 23, 2012 and the second time when he wasarrested in November of 2012. He recalls the names of three people who were in custody at the same time on October 23, 2012.

Thecomplainant is not one of them. [19] The records confirm that the complainant was in RCMP cells in the early morning hours of October 24, 2012.The RCMP recordsindicate that the accused was in custody on November 2, 2012.

The records also indicate that the other people he referred to as alsobeing in custody were in cells on various dates preceding November 2, 2012. [20] Two issues were raised with respect to the alibi put forward. [21] First, the Crown made submissions during the trial that the alibi was not disclosed in a timely manner and invited the Court toconsider that factor when determining what weight, if any, to be given to the alibi. [22] Secondly, the Crown urged the Court to make a finding that the alibi was concocted or fabricated and to use that as evidence ofconsciousness of guilt of the accused. [23] The leading case on alibi evidence is the Supreme Court of Canada decision in R v Cleghorn, (SCC), [1995] 3SCR 175, 100 CCC (3d) 393.

While at one time the law did allow that an alibi not disclosed at the earliest opportunity could beaccorded less weight, the law has developed so that the approach to alibi evidence is consistent with the Canadian Charter of Rights andFreedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (UK), 1982, c 11, ss. 8, 9, 10(b), and 24(2)[Charter] and, in particular, the right of an accused to remain silent. [24] There are two elements to an alibi notice: adequacy and timeliness. To be adequate, notice of an alibi must provide sufficientparticulars to the Crown to allow the veracity of the alibi to be properly investigated.

There is no requirement that the notice take anyparticular form or that the notice be provided by the accused or his counsel. [25] To be timely, notice of alibi must be given sufficiently in advance of the trial to allow time for the prosecution to investigate. Thefact that an alibi could have been provided at an earlier date is of no consequence and is not to be used to give less weight to the alibi. [26] There are many legitimate reasons why the Defence may not disclose an alibi early on in the process.

For example, the date onthe charge may cover a broad range of time and it is only through cross-examination of the complainant, either at preliminary hearing ortrial, that the time frame can be narrowed. This is, but one example. [27] Although there was no evidence on the point, counsel, through submissions, indicated that the alibi was disclosed in this matterafter the preliminary hearing, in March of 2013. The trial was held approximately seventeen months later.

[28] The alibi evidence in this matter was both adequate and timely. Perhaps the best support for this was the fact that the Crowncame to trial armed with both documentary and viva voce evidence to challenge the alibi.

There is nothing in the manner of providing thenotice that prejudiced the Crown and supports the proposition that the alibi should be given less weight because of the manner in whichit was provided. [29] Having said that, I find that I am unable to accept the evidence of the accused that he was in RCMP cells on the night of October23, 2012, and into the following day. [30] His memory is affected by the passage of time and the consumption of alcohol, yet he asks the Court to prefer his recollection ofthe dates over the documentary evidence maintained by the RCMP.

This is simply not reasonable. [31] The Defence argues that cross-examination showed that the RCMP sometimes make mistakes in their record keeping. In thisregard, the Defence pointed out that there were corrections on some of the records filed, indicating that the initial entry had beenincorrect. This may be the case, however, the system of record keeping is a self-correcting system consisting of three parts and designedto catch such errors.

The fact that there were some corrections shows that the system was working as designed and that errors werecaught. [32] I find that the accused was mistaken as to the date that he was in custody. [33] The Crown asks that I go further and find that the accused fabricated an alibi and that such a fabrication should be taken asconsciousness of guilt. In my view, the law does not allow me to do so in this case.

The law on alibi evidence is set out concisely in thefollowing quotation from the Supreme Court of Canada in R v Hibbert, 2002 SCC 39 , [2002] 2 SCR 445, 163 CCC (3rd) 129,at para 67 of the CanLII reported decision: Before turning to the application of the proviso in light of the above, it may be useful to summarize briefly the state of the law withrespect to the rejection of a defence of alibi. -- In the absence of evidence of concoction (deliberate fabrication) an alibi that is disbelieved has no evidentiary value. -- A disbelieved alibi is insufficient to support an inference of concoction or deliberate fabrication.

There must be other evidence fromwhich a reasonable jury could conclude that the alibi was deliberately fabricated and that the accused was involved in that attempt tomislead the jury.

It is the attempt to deceive, and not the failed alibi, that supports an inference of consciousness of guilt. -- In appropriate cases, for instance if there were multiple accused, the jury should be instructed that the fabricated alibi may be used toplace the accused at the scene of the crime, but may fall short of directly implicating him in its commission. -- When there is evidence that an alibi was fabricated, at the instigation or with the knowledge and approval of the accused, thatevidence may be used by the jury to support an inference of consciousness of guilt. -- In cases where such an inference is available, the jury should be instructed that it may, not must, be drawn. -- A fabricated alibi is not conclusive evidence of guilt. (R v Hibbert, [2002] 2 SCR 445, 2002 SCC 39 , online: < http://canlii.ca/t/51s0 >) [See also: R v Maracle, [2006] OJ No 568, 206 CCC (3) 36; R v Carey, (QC CA), [1996] QJ No 3898 (QL), 113CCC (3d) 74; R v Tessier, (BC CA), [1997] BCJ No 515, 113 CCC (3) 538 (BCCA)]

[ 34 ] In the circumstances of this case, the fact that the documentary evidence led by the Crown contradicts the alibi evidence led by the accused does not lead to the conclusion that the accused was engaged in a deliberate attempt to mislead the Court. The fact that the evidence of the girlfriend of the accused is consistent with the evidence of the accused on this point does not lead to a conclusion that the accused encouraged or influenced her to provide him with a false alibi. [ 35 ] Evidence of fabrication allowing the Court to draw an inference of consciousness of guilt requires more.

It requires independent evidence of concoction and fabrication, not simply evidence that the alibi is, in fact, false. [ 36 ] Further, even if I am wrong on this point, I would decline to make a finding of fabrication for a number of reasons. [ 37 ] First, if the accused was going to fabricate an alibi he could have fabricated one which would not so easily be proven to be wrong by the Crown. Reliable evidence either proving or disproving the alibi was readily available and was beyond the control or influence of the accused.

He had to have been aware of this. [ 38 ] Further, the purported alibi does not provide a complete defence to the charges before the Court. There are two allegations of sexual assault said to have occurred on consecutive days. The accused would have been aware of this by the conclusion of the preliminary hearing at the latest. His “alibi notice” was provided to the Crown after the preliminary hearing. Surely if he was going to fabricate an alibi, he would fabricate one which would provide a complete defence and not just a potential partial defence. C.

Evidence of accused [ 39 ] Having rejected the alibi evidence, I must go on to consider the balance of the evidence of the accused. The evidence of the accused was, at times, difficult to accept. For example, he spoke of being concerned for the welfare of young people and encouraging them to do positive things yet the evidence supports the proposition that he was a key player in providing an environment where alcohol was abused. He downplayed his contact with the complainant during the time that she was living in the home.

While I appreciate the limited weight to be given to demeanour, the accused was argumentative, combative, and at times, evasive. [ 40 ] I find that the accused was not a credible witness and I reject his evidence. D. Balance of evidence [ 41 ] For reasons previously indicated, I find it unnecessary to consider the evidence of the other witnesses called by the accused. E.

Evidence of complainant [ 42 ] I must consider the evidence of the complainant and determine how much, if any, of her evidence I accept and if the evidence accepted is sufficient to prove the case beyond a reasonable doubt. [ 43 ] There are a number of factors I must consider in determining the credibility and reliability of the complainant's evidence. (i). Criminal record

[ 44 ] The complainant has a criminal record consisting of convictions for: theft over $5,000, taking motor vehicle without consent, break and enter, impaired driving, and breaches of Court orders. [ 45 ] In my view, although the record includes convictions for offences of dishonesty, it is of little weight or assistance in assessing credibility. The criminal record is reflective of a troubled background and is, unfortunately, the type of criminal record which is too common amongst youth in this jurisdiction. In my view, it reflects a character that lends itself to mischief rather than dishonesty. (ii).

Public mischief charge [ 46 ] In January of 2014, the complainant was charged with public mischief. The charge was subsequently stayed by the Crown. Nonetheless, the circumstances are troubling. [ 47 ] The complainant was intoxicated. Her boyfriend was living in another community. She communicated to him through a number of text messages that she had essentially been kidnapped by a couple of men, that they had firearms, that they had put her in the trunk of a vehicle and driven her somewhere, and that they were going to hurt her. Naturally, her boyfriend contacted the police and inquiries were made.

The complainant testified that she knew the police were likely to be contacted and to respond. [ 48 ] As troubling as the communications to the boyfriend are, there is further evidence that the complainant also met with the police after the incident and continued with the story. [ 49 ] At trial, she admitted that she had lied to her boyfriend and to the police and that she did so knowing that an investigation would be undertaken. [ 50 ] It is not for me to question or speculate as to why the charge was not proceeded with.

I must rely on the evidence before me, which is an admission by the complainant to having lied to the police about very serious allegations. (iii). Prior inconsistent statements and inconsistencies in the Complainant’s evidence [ 51 ] I must also consider any inconsistencies in the complainant's testimony at trial and any inconsistencies in what she said at trial and what she said on prior occasions. All witnesses are likely to have some inconsistencies in their evidence, this is to be expected.

People will remember things slightly differently at different times, confuse details, and perhaps provide answers that they are not completely sure of in an effort to try and provide a complete version. [ 52 ] Not all inconsistencies are significant and impact on the reliability of the evidence, but some are. [ 53 ] There are three inconsistencies in the evidence of the complainant that give rise to concern. [ 54 ] First, at the preliminary hearing the complainant testified that the first sexual assault, before she was taken to the drunk tank, occurred in the bedroom and that the second sexual assault, after she was released from the drunk tank, occurred in the bathroom (see Trial Transcript, page 90, lines 1-17).

This is in contrast to her evidence at trial where she testified that the first sexual assault occurred in the bathroom and the second sexual assault in the bedroom. [ 55 ] Secondly, at the preliminary hearing the complainant testified that she found herself in the bathroom with the accused when she went by herself to use the washroom and he followed her.

At trial, she testified that the accused took her to the bathroom, at one time saying he was holding her by the arm and leading her in (see Trial Transcript, page 92 to 95). [ 56 ] Lastly, at the preliminary hearing the complainant testified that the accused gave her $60 and that she gave the money away. At

trial, in direct examination, she said that the money had never been in her hand (see Trial Transcript, page 35, lines 20-22). In cross-examination, she explained that she had taken the money, but had then left it in the living room (see Trial Transcript, pages 97-98). (iv).

Effect of alcohol [ 57 ] The last factor that I must consider in assessing the reliability of the complainant's evidence is the impact of alcohol on her perception of events. [ 58 ] Alcohol can affect a person's memory and perception of events and, depending on the nature of the case, may be relevant when assessing the extent to which the trier of fact should rely upon the testimony of a witness. However, it is unlikely that in the circumstances of this case alcohol would have impacted on the complainant's perception of whether or not sexual intercourse occurred.

If there was sexual activity, then it was a sexual assault, there being ample evidence that there was no consent and there being no evidence to the contrary. V. CONCLUSION [ 59 ] There are many aspects of this case which are troubling, not the least of which is the circumstances that this young girl found herself in, without a safe, sober place to go to. It seems clear that she has had a troubled adolescence and, regardless of the outcome of this matter, I hope she can overcome her past and find her way. [ 60 ] As indicated earlier in these reasons, I reject the evidence of the accused.

However, I am unable to conclude that the disbelieved alibi is indicative of consciousness of guilt. [ 61 ] Having said that, there are two factors that raise concerns about relying upon the evidence of the complainant. [ 62 ] One is the inconsistency between the complainant's evidence at the preliminary hearing and at trial as to the sequence of the bathroom sexual assault and the bedroom sexual assault.

In my view, this is a major inconsistency which was not explained. [ 63 ] The second factor is the circumstances leading to the laying of a public mischief charge, in which the complainant admitted to lying to the police and making very serious false allegations. I appreciate that there may well have been personal circumstances that contributed to the complainant fabricating such a story, but the incident is not in the distant past and the personal circumstances of the complainant were also difficult during the time this matter has been pending.

This is not to say that the complainant's credibility is or should be forever tarnished. [ 64 ] The criminal standard is high. While I am highly suspicious of the activities of the accused, I conclude that it would be dangerous to convict on the evidence of the complainant, given the concerns previously discussed. [ 65 ] I find the accused not guilty on both counts. Dated at the City of Iqaluit this 19th day of January, 2015

___________________ Justice S. Cooper Nunavut Court of Justice Amendment of the Reasons for Judgment Reserved of The Honourable Madam Justice Cooper _______________________________________________________ In paragraphs [01] and [02] changes have to made to remove references to the relationship between the accused and the complainant in order to protect the identity of the complainant. Please replace the amended pages in your hard copy of the judgment.