R v. Ekpakohak, 2014 NUCJ 03

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R v. Ekpakohak, Ekpakohak, & Kanayok, 2014 NUCJ 03 Date of Judgment (YMD): 20140124 Docket Number: 21-13-22-1 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Jack Ekpakohak, James Ekpakohak, and Allen Kanayok ________________________________________________________________ Before: The Honourable Mr. Justice E. Johnson Crown Counsel : C. Punter Defence Counsel : (Jack Ekpakohak) P. Falvo (James Ekpakohak) L. Moore (Allen Kanayok) D.

Harris Location Heard: Cambridge Bay, Nunavut Date Heard: November 5, 2013 Matters: Criminal Code, RSC 1970 C c-34, ss. 144, 146(1) ________________________________________________________________________ REASONS FOR JUDGMENT ________________________________________________________________________ (NOTE: this document may have been edited for publication)

Restriction on Publication: By court order made under

section 486.4 of the Criminal Code , any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way. I. INTRODUCTION [ 1 ] The three accused are charged by indictment with raping the complainant at Cambridge Bay between April 1980 and June 1982 contrary to

section 144 of the Criminal Code, RSC 1970 C c-34 [ Criminal Code ] in force at that time. They are also charged with having sexual intercourse with her when she under the age of 14 contrary to section 146(1) (

b) of the Criminal Code

section in force at that time. [ 2 ] The complainant is 41 years old and first complained to the police about the alleged rape on February 24, 2011 when she gave a statement to the police. In the statement she alleged that when she was about nine years old all three accused had sexual intercourse with her without her consent. [ 3 ] The accused were charged in separate informations sworn on January 19, 2003 and elected judge and jury.

A preliminary inquiry was scheduled, but on July 16, 2013 the accused re-elected judge alone and on July 17, 2013 the Crown filed an indictment charging all three with offences contrary to sections 144 and 146 of the Criminal Code . [ 4 ] The trial was held before me on November 5, 2013 and judgment was reserved. II. EVIDENCE A. Complainant [ 5 ] The complainant and her brother testified for the Crown.

The only accused that testified was Jack Ekpakohak. [ 6 ] The complainant testified that sometime between 1980 and 1981 when she was nine years old she lived in Cambridge Bay with her mother and her older brother C.T. in a two-bedroom house. Her father was deceased. One evening after the snow was starting to melt the three accused visited her mother and brother while she was in her bedroom doing homework. She identified all three accused in court and indicated that they were her “adopted uncle” and “half uncles”. [ 7 ] The complainant stayed in one room with her mother and C.T. occupied the other bedroom.

The house also had a living room, kitchen, bathroom, and a small porch. [ 8 ] The complainant testified that her mother and brother were drinking homebrew when the three accused showed up and joined the party. She was doing her homework in her bedroom. She went into the kitchen to get a cup of water and then went back to her bedroom and closed the door.

Either James or Jack Ekpakohak came into the bedroom and asked her why she was not asleep and she told him she was doing her homework. [ 9 ] A short time later the same person came back into the bedroom and then called for the other two accused to come into the bedroom. Two of accused held her down and took her clothes off while the third had sexual intercourse with her. Then they switched until all three

had intercourse with her. She did not know who initially held her down or who was holding her down throughout the events because she had closed her eyes. She did not cry out and testified that her brother and mother were passed out from drinking. [ 10 ] After all three accused had intercourse with the complainant they told her not to tell anyone about what happened and if she did she would be beaten up. The complainant never told anyone about the incident at the time. She told her ex-husband when they first met eighteen or nineteen years ago.

He was the only person she told until she spoke with a counselor at the Fort Smith Women’s Correctional Centre about two or three years prior to the trial, which led to the complainant giving a statement to the police on February 24th, 2011. [ 11 ] During examination-in-chief the Crown questioned the complainant about her criminal record and she acknowledged the following convictions: * 1995: mischief under $1000 – suspended sentence and two months probation; * 1997: driving with more than .08 milligrams of alcohol - $750 fine and driving prohibition for four months; * 1997: public mischief- three months jail; * 2003: assault - $300 fine; * 2006: assault with a weapon, uttering threats, and assault - sixty days intermittent jail sentence on first two charges and thirty day concurrent intermittent sentence on the third charge; * 2006: failing to comply with a probation order x2 and being unlawfully at large - one month in jail and one month concurrent; * 2008: failing to comply with a recognizance – one month in jail and 12 months probation; * 2009: assault with a weapon, uttering threats, failing to comply with recognizance – three months in jail; * 2010: care or control of motor vehicle while having more than .08 milligrams alcohol – thirty days intermittent and probation * 2010: failing to comply with probation; and * 2010: assault causing bodily harm – four months in jail and probation; [ 12 ] The complainant was convicted of the 1997 charge for public mischief because she made a complaint to the police that she was sexually assaulted that she later admitted was untrue. [ 13 ] In cross-examination by Paul Falvo [Falvo], counsel for Jack Ekpakohak, the complainant acknowledged that while in jail in Fort Smith she wrote in a journal about the sexual assault and gave the journal to a caseworker.

Because of that revelation she has had no further criminal charges and is now leading a much better life. [ 14 ] The complainant acknowledged that in her journal she stated that she had cried out but in court she testified that she did not. In explaining the conflict she testified that she was scared and wanted to cry out but could not make any noise and “It just couldn’t come out”. Her journal also stated “I was crying and yelling for my mom or brother but they were passed out or couldn’t hear me”. She explained that conflict by testifying that she was “crying and yelling inside.

It’s just like I was yelling out loud” even though there was no noise for her mother and brother to hear1. [ 15 ] When Falvo suggested that what the complainant wrote in her journal was not true she replied that she was expressing her feelings and as she stated “well, it was inside. I --- I was just expressing my feelings in that letter”2. The following questions and answers then took place: Q: Right. But it’s not because they were passed out, that they couldn’t hear you. A: No, I thought -- like, I -- for me it’s just like it was loud. Q: And you don’t actually know that your brother was passed out?

A: He was passed out the last time I saw him because I went -- before I went back into the room, I had to -- going back --go and grab another cup of water and he was already passed out.3 [ 16 ] The complainant emphatically rejected Falvo’s suggestion that there never was a time when all three of the accused were drinking at her mother’s house. [ 17 ] The complainant acknowledged that she had some contact with the accused after the alleged rape. She would see them from time to time and would say hi. She also went to Jack Ekhakopak’s house one time but did not stay for long.

She testified that she was comfortable visiting his house because her cousin accompanied her. [ 18 ] The complainant acknowledged that she told her ex-husband about the incident and later beat him up when he told her son about it. [ 19 ] The complainant acknowledged that she had buried her memories over the years by the use of alcohol but denied that she had lost her memory of the event until she received therapy in Fort Smith. [ 20 ] In cross-examination by Leslie Moore [Moore], counsel for James Ekpakhohak, the complainant acknowledged that after the alleged rape she visited James at the medical boarding home in Yellowknife when he was there for medical attention.

She also went walking with him when he needed to go shopping and sometimes was in a vehicle with him. [ 21 ] In cross-examination by Deanna Harris [Harris], counsel for Allen Kanayok, the complainant admitted that she had two other uncles named Robert and Richard. However, she maintained that they never came to her mother’s house.

She also acknowledged that the only time that Allen visited her house was the night of the alleged sexual assault. [ 22 ] In response to Harris’s suggestion that she did not actually even meet Allen until she was about 14 years old, the complainant testified that she knew him from the time she was small. When Harris then suggested she only found out he was her uncle when she was 14 she responded that she always knew him as her uncle.

In response to suggestions that Allen did not come to family gatherings the complainant testified that he went to visit her mother once in a while. [ 23 ] On the evening of the alleged assault, she described Allen being in the kitchen sitting on a chair with the two other accused when she went out into the kitchen to get a cup of water. She admitted that she had trouble remembering what Allen was wearing that night because it happened 32 years ago. She then said, “all I remember is them being there and they were all taking turns.

I was – had my eyes closed”4. [ 24 ] The following questions and answers then took place: Q: And then you testified today that either Jack or James came into your room to ask you what you were doing? A: It was either one of them. And then they called-- he -- one of them called for either Jack or Allen. Q: Okay.

A: Or James or Allen. I’ve -- I was nine. Q: You can’t remember; right? You can’t remember who came to your room first; right? A: Yeah. Q: Okay. And you testified here today that they left, that person left the room for a little while; right? A: For a little while, yeah. Q: And then you say that that person came back in the room; right? A: Yes.5 [ 25 ] Harris then exposed an inconsistency between this evidence and her statement to the police. The complainant acknowledged that she gave the following statement to the police.

My mom and my brother were drinking with my three uncles and I was doing my homework in my room. And you could hear them laughing and talking. I never thought nothing of it. I just stayed in my room doing my homework. And I guess my mom passed out on the couch and my brother was still drinking with my uncles. Then I went to the kitchen to grab a glass -- a glass of water and my brother was passing out. So, I just went back in my room and stayed in there.

And I guess 1 not long after my brother passed out, my Uncle James came in, asked me what I was still doing up, and I told him I was doing my homework for school in the morning. And then he called to my Uncle Allen and Jack to come in my room and they all took turns raping me6. [ 26 ] The complainant acknowledged that in her statement she had specifically identified James, as being the person that entered the room first, whereas in her testimony she said it was either Jack or Allen.

The complainant responded that it was so long ago and that she was having trouble with the details because she had been trying to block it out for years by drinking alcohol. She acknowledged being an alcoholic and taking a 28-day treatment program. Then the following questions and answers, at page 61 of the Transcript, took place: Q: Okay. Because your problems with alcohol are so serious; right? A: Yes, because I’ve been trying to block it out. Q: Okay. And you have managed to block some of it out; right? A: I’ve tried blocking it out but just brings back memories. Q: Okay. It brings them back? A: Yes, it does.

Q: So, you forget them for a time and then it comes back? A: No, as soon as I start drinking, it’ll just block everything out. Q: Okay. A: And that’s why I start drinking, is because -- just to ease my pain a little bit7. [ 27 ] The complainant also acknowledged an inconsistency between her testimony and her statement concerning the clothes she was wearing that night. She testified that she was wearing her sweatpants and a T-shirt, whereas in her statement she said she did not know what she was wearing. [ 28 ] Finally, Harris established an inconsistency about being threatened by the accused.

In her testimony she said she had associated with some of the accused after the event. She got along with them and was not scared of them because she was always with someone. However, in her statement she said all three threatened her every time one of them would be walking to the store and see her as one of them was going by her school.

B. Complainant’s Brother C.T. [ 29 ] C. T. corroborated the complainant’s testimony about living in a two-bedroom house with their mother and the sleeping arrangements. He found out about the allegations against the accused in 2011 and was questioned by the police. He had very little recall about the 1980 to 1982 period except that he drank regularly with James at the house. He had the odd drink with Allen but had no specific recall about an evening when he drank with all three accused. He admitted it could have happened but he could not remember.

He also admitted that when he drank at home both he and his mother frequently passed out because they were drinking homebrew. [ 30 ] In cross-examination C.T. admitted that he rarely drank with Allen. C. Jack Ekpakohak [ 31 ] He testified that was close to James and Allen during the 1980’s and hung out with them a lot. However, he never knew C.T. very well and never hung out with him.

He hardly ever went to C.T.’s house and he denied sexually assaulting the complainant. [ 32 ] He denied ever drinking with James and Allen at the complainant’s house although he admitted they could have drank elsewhere with them. [ 33 ] He testified that he knew the complainant’s mother and did party with her a few times but did not know the complainant very well.

The complainant came to his house in the late 1980’s with her friend M.T. and with two 40-ounce bottle of rum or vodka and they wanted to party with Jack and his wife. [ 34 ] In cross-examination the accused admitted that when he drank alcohol he frequently passed out and had blackouts so that he had trouble remembering parts of what happened during the drinking. [ 35 ] He reluctantly admitted that he did drink the home brew made by the complainant’s mother at her house as well as beer that she purchased from the Hudson’s Bay store.

He reluctantly admitted that he might have drunk hard liquor at the house as well. He remembered that he tried to get out of the house before he passed out when he was drinking with the complainant’s mother. [ 36 ] He also reluctantly admitted that he could have been drinking with James and Allen and with the complainant’s mother at her house if there was alcohol available and a party in progress.

However, when the Crown tried pin down the dates that he was drinking at the house he became evasive and testified he never drank at the house between 1980 and 1982. [ 37 ] When the Crown pointed out the conflict in his evidence he admitted that his memory was poor about his drinking days. [ 38 ] Jack Ekpakohak also admitted that he had never had any problems with the complainant and that a few days before his trial started he loaned her 20 dollars despite being on a no contact condition. III. SUBMISSIONS A.

Jack Epakohak [ 39 ] Falvo noted the difficulty in defending an alleged historical sexual assault charge because there is no corroboration and any potential alibi is not available. No person can reasonably be expected to remember what happened 30 years earlier.

[ 40 ] He also emphasized the difficulty in accepting the complainant’s testimony when she was convicted of public mischief for changing her statement in a sexual assault trial. [ 41 ] Falvo also emphasized the problems with the complainant’s memory. She could not remember the details of the traumatic events in the bedroom such as which uncle came into the bedroom first. However, she has specific recall about the number of times she went out to get some water in the kitchen and what she was wearing. The things she remembers are those things that happened all the time.

She can be specific that in testifying that her mother was drinking home brew that night because her mother did that regularly. She can remember wearing a T-shirt because she always wore one. The most glaring problem with the testimony is her explanation for not crying out for help. In examination-in-chief she testified that she did not scream or cry out but in cross-examination she testified that she was trying to scream but could not get the sound out.

In a note she wrote for herself she stated she was screaming and crying but her mother and brother did not hear her because they were passed out. [ 42 ] Falvo submitted that Jack Ekpakohak was an honest witness. He did make a blanket denial but had great difficulty trying to remember drinking events 30 years earlier. He did not remember a time when all three accused were drinking together with the complainant’s mother and brother.

He did not testify that it could not have happened but just that he can’t remember it. [ 43 ] While acknowledging that it was therapeutic for the complainant to talk about past events in her life, Falvo submitted that she may have needed to find a scapegoat for her life, which included a number of convictions and difficulties. While she testified that she tried to black out her memories she also testified that she freely went over to Jack’s house to visit. [ 44 ] In conclusion, Falvo submitted that, while it was possible Jack could be guilty there is no way that this court could be sure.

It would be very dangerous to convict on the vague evidence that came from the complainant. B. Crown [ 45 ] The Crown submitted that C.T.’s evidence was supportive of the fact that he would regularly drink and pass out at his mother’s house even though he could not remember anything about the evening described by the complainant. [ 46 ] The Crown agreed there was no corroboration from independent witnesses about what took place on the alleged evening described by the complainant. There was no recent complaint and no physical evidence.

The Crown case is based solely on the complainant’s evidence. [ 47 ] It was submitted that Jack Ekpakohak’s evidence could be interpreted as possibly placing himself in the residence as described by the complainant. [ 48 ] While admitting there were inconsistencies in the complainant’s evidence, the Crown argues that they were minor and consistent with someone trying to recall events that took place over 30 years earlier. There were no glaring inconsistencies that would draw her credibility into account.

[ 49 ] The conviction for public mischief for changing her statement in a previous sexual assault trial is troubling because she reported something as true when it was false. However, she came before the court and bared herself to cross-examination by three people in this community and freely admitted the prior conviction for misleading the police. These actions suggest there is a ring of credibility to her evidence. [ 50 ] The case for the Crown comes down to her evidence alone. She holds no grudge against her three uncles and has nothing against them.

She simply came to court looked them in the face and said they raped her and then threatened her if she went to the police. This court should accept her evidence. C. James Ekpakohak [ 51 ] Moore did not call his client because he had difficulty remembering what happened and could add nothing to help the court decide what really happened. The case comes down to the credibility of the complainant that is undermined by her previous conviction for lying to the police about another sexual assault. [ 52 ] He argues that the complainant was evasive at times and tailored her answers to fit into the questions.

When asked whether her brother was passed out the second time she went for a glass of water she responded that he was not. She could easily have yelled out because she knew he was awake. [ 53 ] Moore argues the complainant’s evidence is unreliable because she is trying to remember things that happened 30 years ago. There is very little in specifics that a court can rely upon to test her credibility. She testified that when she was being raped she closed her eyes so she could not say who was doing what.

She never said anything about the order in which it took place nor who was holding her, and made very general comments that all three were raping her. Since she was only nine years old at the time she may believe that it happened to her, but this court must be careful relying on her evidence. It would be dangerous to convict on the evidence in this case. D.

Allen Kanayok [ 54 ] Harris adopted the submissions of Falvo and Moore about the complainant’s credibility when she had been convicted of the misleading the police and causing public mischief. [ 55 ] She was also concerned with the reliability of the complainant’s evidence in light of the fact that she was a heavy drinker for much of the past 30 years. She called herself an alcoholic who deliberately tried to obliterate memories from that night when she was nine years old. As a result, her evidence is full of inconsistencies. First, she was inconsistent about what she was wearing on the night in question.

She did not recall what she was wearing in the statement given to the police, but in court she clearly testified that she was wearing a complete outfit: sweat pants, a t-shirt, and socks. Second, she was inconsistent about who came into her room. In 2011 she was clear it was James. In court she testified that the first person to come in was Jack or James. This indicates that her memory is unreliable. In court she testified that the person who first came into the room left for a while, whereas, in 2011 she told the police that James called the other two into the room.

The third inconsistency is that she testified that she did not have any problem with the three accused after the incident. However, she told the police in 2011 that the three accused continually threatened her when she was out in public, going to

school. [56] Finally, Harris responded to the suggestion by the Crown that Jack’s evidence demonstrated that the events described by thecomplainant could have happened. She submitted that a possibility is not sufficient to satisfy the reasonable doubt requirement. IV. ANALYSIS [57] As noted by Kilpatrick J. in R. v Horne, 2008 NUCJ 6 , 2008 NUCJ 06, [2008] NuJ No 6 at para 33-35 [Horne], thememory of children diminishes more rapidly than adults with the passage of time. However, omission of peripheral details is not usuallya basis for rejecting the testimony of a child witness.

An inability to remember time, date or location, confusion about sequences,frequency, or separation of days is not as damaging to a child witness as it would be to an adult. Memories carried forward from infancywill likely suffer from these same deficits, and are not likely to improve to recover details not recorded in the childhood. [58] In Horne, Kilpatrick J. noted the difficulties when the evidence lacks context and and there are no contemporary records to refreshthe memory. It will result in two possible inferences.

First, the memory deficits can be explained by the age and circumstances andsubsequent passage of time. Second the there may be memory deficits because the evidence is contrived. [59] Unlike Horne, the complainant did provide an adequate explanation for the delayed disclosure. For years she buried the emotionalpain from the incident with alcohol and as a result developed a significant criminal record. When she was in jail in Fort Smith she finallyreceived supportive counseling.

During one of the counseling sessions she finally revealed the sex assault and moved on to make acomplainant to the police. [60] I adopt the following words of Kilpatrick J., in paragraphs 52-54 of Horne, on the impact of delay on the analysis of the evidence ina criminal prosecution: The standard of proof in a criminal prosecution, proof beyond a reasonable doubt, is a high threshold to achieve. The Crown bears theburden of proof, and it must do so with evidence that meets this standard. This is so for a reason. Any lesser standard risks the convictionof the innocent and a possible miscarriage of justice.

The prosecution of historical offences presents the Crown with a formidable challenge. Delayed reporting and the passage of time caninterfere with the collection of credible evidence. Forensic science cannot assist where the physical evidence related to a crime or a crimescene has disappeared. Witnesses may die or disappear. Witnesses who are found may choose not to cooperate. The passage of time may also affect a witness'smemory. Details once remembered may be forgotten.

The greater the time, the more pronounced this phenomenon is likely to become.Memories of events can shift over time as a result of subtle influences caused by a witness's changing life experiences. Honest mistakeand error can result. Delay affects not only the quantity of evidence available to the Crown, but also its quality. [61] In Horne the events also occurred over 30 years earlier and Kilpatrick J. noted the impact on the defence of the lost opportunity toobtain contradictory evidence. There are similar problems in this case.

All accused suggest that they had difficulty trying to rememberthat far back although only Jack Ekpakohak testified about it. He also denied sexually assaulting the complainant. There was no similardenial from James or Allen. [62] Where an accused testifies I am required to assess the evidence in accordance with R. v. W.(D.), (SCC), [1991] 1SCR 742, 63 CCC (3d) 397. In this case the evidence amounted to a bare denial without any context because the accused cannotremember anything except that he may have been drinking at the complainant’s house between 1980 and 1982.

After due considerationof all of Jack Ekpakohak’s evidence I give little weight to his denial. In assessing the Crown’s burden of proof I am left with assessingthe credibility of the complainant and analyzing it to ascertain whether I am left with a reasonable doubt. [63] I am satisfied that the complainant was trying to tell the truth about something that she believed had happened to her many yearsearlier. She has clearly suffered trauma in her life and resorted to alcohol to kill the pain of that trauma. With the help of a therapist she

was able to peel back the layers to try and understand the trauma. She concluded from that process that she was raped by the three accused. She then embarked on her journey into the criminal justice system, something she saw as necessary to complete her recovery from the trauma. What may suffice with a therapist does not necessarily satisfy a court of guilt beyond a reasonable doubt. [ 64 ] The complainant’s evidence suffers from a lack of context and there are significant inconsistencies as identified by counsel for the accused.

Her description of the incident was a barebones statement that Jack or James came into the bedroom and called the others to come in. She was then held down and raped by all three. She closed her eyes and did not see what was happening. She was unable to particularize the basic facts like who took off her clothing and which accused assaulted her first. [ 65 ] I also have difficulty with the complainant’s association with Jack and James after the alleged event.

These actions are inconsistent with someone who had been scared enough by the alleged threats to avoid complaining to someone about what had happened. [ 66 ] Under all the circumstances the complainant’s evidence is borderline to sustain a conviction on the reasonable doubt standard. When I add on the scale that the complainant had been convicted of previously misleading the police about another alleged sexual assault I am satisfied it would be dangerous to convict the accused.

I accordingly find all three accused not guilty. [ 67 ] In closing I hope the complainant understands that my finding does not mean that what she believes happened did not occur. It is simply mean that the Crown has failed to meet the burden of proof. Dated at the City of Iqaluit this 24th day of January, 2014. _______________________ Justice Earl D.

Johnson Nunavut Court of Justice 1 Official Transcript of Trial (November 5, 2013) at 28 lines 14, 6-7, 10-11 [Transcript]. 2 Ibid at 28 lines 22-23 3 Transcript at 28 lines 24-27, 29 lines 1-6. 4 Transcript at 55 lines 26-27. 5 Transcript at 56 lines 13-27. 6 Transcript at 58 lines 19-27, 59 lines 1-6. 7 Transcript p 61 lines 10-25. --------------- ------------------------------------------------------------ ---------------

------------------------------------------------------------