R. v. Ningiuk, 2017 NUCJ 6

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. Ningiuk, 2017 NUCJ 06 Date of Judgement: 2017-03-08 File Number: 08-16-80 Registry: Iqaluit Prosecutor: Her Majesty the Queen -and- Accused: Jessie Ningiuk ________________________________________________________________________ Before: The Honourable Mr. Justice N. Sharkey Prosecutor: S. Gardezi Accused: J. Morton Location Heard: Iqaluit, Nunavut Date Heard: 12 January 2017 Matters: Criminal Code , ss. 271 REASONS FOR JUDGEMENT (Delivered Orally) (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE This matter is subject to a PUBLICATION BAN ordered under s.486.4 of the Criminal Code "Any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way."

A. BACKGROUND [ 1 ] The accused, Jesse Ningiuk is charged with one count of sexual assault contrary to s. 271 of the Criminal Code of Canada, RSC 1985, c C-46 [Criminal Code] . The incident which gave rise the charge took place a little over a year ago, on 25 January 2016. [ 2 ] The accused pleaded not guilty and the trial took place before me on 12 January 2017. I reserved decision until today. [ 3 ] There is a publication ban in this case respecting information which might lead to identify the complainant.

Accordingly, I shall refer to her by her initials only, as KG, and to her female companion or girlfriend, as QM. [ 4 ] KG was 18 years old at the time of the alleged offence, and her friend QM, 19 years old. It appears from Court documents that the accused Jessie Ningiuk was about 21 years old at the time. [ 5 ] Counsel have, at various points in the trial, made reference to Mr. Ningiuk simply as Jessie, and so, for the most part, I will do likewise in rendering judgment. [ 6 ] The complainant, KG, and her friend, QM, had stayed up all night at QM’s place. They had not slept.

They were basically just hanging out, but not drinking or doing any drugs. They were sober. [ 7 ] As morning approached, the complainant, KG and the accused, Jessie, started texting each other. Jessie invited the two young women to come over to his place, his apartment, which they did, sometime between 8 and 9am.

The incident which gave rise to this criminal charge took place at Jessie’s apartment. [ 8 ] KG testified that she knew Jessie only in passing from when she was a young kid, and from generally seeing him around town. [ 9 ] Jessie had a bottle of vodka at the apartment, and the three of them had a few drinks, which Jessie poured.

There was nobody else at the apartment, just the three of them (the complainant, KG, her friend QM, and the accused, Jessie). [ 10 ] Both KG and QM testified that they had a couple of mixed drinks as well as a couple of shooters; roughly about 6 or 8 ounces of hard liquor at the most, each. [ 11 ] Neither the complainant, KG, nor her friend QM got drunk at all.

They both admitted being buzzed from the drinking but KG said she was more just tired from staying up all night and that on a scale of 1 to 10 she would have only been a 5 as far as drinking goes. [ 12 ] KG testified that there was some pot being smoked but that she never smoked any. She said her impression of Jessie was that he was a guy that gets drunk easily. [ 13 ] Shortly after they arrived, QM went to the washroom, leaving KG and Jessie in the living room.

KG testified that as she was getting up from the couch Jessie – to use KG’s words – stole a kiss. [ 14 ] She said he then put his arm on her shoulder and guided her hand to his exposed penis and held it there with his own hand. KG testified that she resisted or put an end to this sexual overture by lifting both her hand and Jessie’s off of his penis. She then went to the washroom to see how her friend was doing. [ 15 ] After QM came out of the washroom, everybody just continued to socialize and generally hang out.

KG testified that Jessie was getting drunk, and QM testified that both she and KG, while they were a bit buzzed, knew what they were doing.

[ 16 ] Eventually, sometime before 11am, the complainant KG passed out or fell asleep, fully clothed, on the living room couch. There was some discrepancy about whether she had taken off her sweater before falling asleep but in my view this is not important. [ 17 ] QM testified that she saw Jessie lift up KG from the couch and carry her in her unconscious state – while she was still asleep – into his bedroom and place her, fully clothed, on his bed. [ 18 ] QM then decided to go home, but just before she left she and Jessie engaged in some brief, and consensual sexual activity.

QM cut this activity short or ended it when she changed her mind about continuing and decided just to leave and go home. This was fine with Jessie and this brief sexual activity stopped. [ 19 ] QM then left, leaving KG and Jessie alone in the apartment. [ 20 ] Just before she left, however, QM picked up KGs personal belongings or stuff and put them beside the bed.

She also put a blanket over KG. [ 21 ] QM testified that as she was leaving the apartment she told Jessie, “Don’t do anything,.. and don’t touch her stuff.” [ 22 ] Several hours later, around 5pm, KG woke up. [ 23 ] She testified that when she woke up she found herself naked, and that she was lying beside Jessie who was also naked, and asleep or passed out. She said her underwear (bra and panties), as well as her jeans and top, were on the floor beside the bed. [ 24 ] KG testified that she was in a confused state and frantically tried to put together what might have happened to her. She noticed 2 spent condoms.

She also noticed some discharge on her body and on her underwear.

She testified as well that she felt soreness in her vagina. [ 25 ] She texted her friend QM and then she just left the apartment with Jessie still asleep or passed out in the bedroom. [ 26 ] KG testified that for the next week or so she carried on with her normal activities but that, fearing the worst, decided eventually to go to Public Health to be checked out for a possible STD. [ 27 ] Shortly afterwards, the result came back positive and she was informed she had contracted Chlamydia. [ 28 ] KG testified that after finding this out she flipped out and texted Jessie saying, “You raped me.” She said Jessie texted back saying “I’m sorry.

I was really hammered.” KG said she then removed or deleted anything to do with Jessie from her phone. [ 29 ] KG testified she then told both her boyfriend and her father what had happened, after which she went to the police to make a complaint. KG testified that she felt nervous and shocked when she was interviewed by a male police officer. B. POSITION OF THE PARTIES i.

Crown [ 30 ] The Crown suggests that the circumstantial evidence is compelling to the conclusion that the accused Jessie Ningiuk had sexual intercourse with (or at least vaginally penetrated) the complainant KG, and that this occurred at a time when the complainant was incapable of giving consent because she was asleep. [ 31 ] The Crown says that Jessie had the exclusive opportunity to take off KG’s clothes and to violate KG under circumstances where he had previously made an unwanted sexual advance to her. [ 32 ] The Crown points to the fact that when Jessie carried KG to the bedroom she was fully dressed but that after KG woke up she was naked, that KG found spent condoms in the bedroom, that she discovered some discharge on her body and underwear, and that she felt her vagina was hurting.

[ 33 ] The Crown points further to the text message exchange between KG and Jessie which the Crown says corroborates the inference that Jessie assaulted KG while she was asleep. [ 34 ] Under these circumstances, the Crown says, it is clear that Jessie engaged in sexual activity with a complainant who was incapacitated and thus, as a matter of law, committed sexual assault. ii.

The Defence [ 35 ] The Defence says I should not accept the complainant’s testimony that she cannot remember anything that happened between the time she fell asleep and the time she woke up. [ 36 ] The Defence concedes that sexual activity took place, but the Defence position is that in the 4 or 5 hours after KG passed out or fell asleep there may well have been consensual sexual activity, and even consensual intercourse between KG and the accused, Jessie. [ 37 ] The Defence concedes as well that Jessie was interested sexually in KG but that this by itself is not a crime. [ 38 ] The Defence says that this is a case where 3 young people getting together within a context where consensual sexual activity was certainly in the cards as a real possibility. [ 39 ] The Defence suggests I should be suspicious of KG’s testimony since she told the Court she actually picked up the two condoms and noticed they were used, whereas she told the police she only assumed they had been used.

Similarly, the Defence says that KG told the police that Jessie had held her hand on his penis for up to 20 to 25 seconds. [ 40 ] The Defence suggests that KG was not drunk and although she fell asleep at one point she knew what she was doing generally. [ 41 ] The Defence suggests that the most likely scenario is that KG engaged in consensual sexual intercourse with Jessie, and simply regretted it later.

And that only in the aftermath when there was a repercussion to confront – namely the chlamydia – did she tell people she had fallen asleep and must have been taken advantage of. [ 42 ] The Defence suggests that while such a scenario may be speculative, it is nonetheless an equally speculative proposition that KG was taken advantage of while she was asleep. [ 43 ] The Defence reminds the Court of the burden on the Crown to establish the elements of the offence and that the circumstantial evidence in the case is consistent with both consensual and non-consensual sexual activity. [ 44 ] Accordingly, says the Defence, the Crown is unable to prove the absence of consent at the required criminal standard of proof beyond a reasonable doubt.

C. ANALYSIS AND CONCLUSION [ 45 ] The issue in this case, as both counsel have articulately pleaded, is whether it has been established that the complainant, KG, did not consent to any sexual activity – most particularly and importantly, to any act of vaginal penetration or intercourse. [ 46 ]

Section 273.1 (1) of the Criminal Code makes it clear that in cases of sexual assault, “ consent means the voluntary agreement of the complainant to engage in the sexual activity in question .” [ 47 ] Further, s. 273. 2 (

b) says that no consent is obtained where “the complainant is incapable of consenting to the activity .” [ 48 ] And while ‘incapacity’ is not defined in the Criminal Code , it is well settled – as both a matter of law as well as common sense – that an unconscious complainant or victim cannot consent, full stop. [ 49 ] It matters not whether such a person is passed out from excessive intoxication from alcohol or drugs, or unconscious

because of some trauma, or simply asleep. In such circumstances, the unconscious person is incapable of giving consent. [ 50 ] I am, of course, keenly aware of the burden on the Crown in a case of sexual assault to prove every element of the offence, including the requirement to prove beyond a reasonable doubt that the complainant did not consent to the sexual activity in question.

It is not on the accused person to show or establish that the complainant did consent, or may have consented. [ 51 ] In this case, I accept KG’s testimony that when her friend QM went to the washroom that the accused, Jessie approached her and kissed her in the manner she described – that is, to use her words, that he ‘stole a kiss.” [ 52 ] I accept KG’s testimony that Jessie then placed her hand on his exposed penis, and that she lifted her hand off his penis, and at the same time off his hand as well, because she did not want to engage in this type of activity.

I consider this factual information to be important. [ 53 ] It tells me that the accused, Jessie, had a sexual interest in KG, and that he was made aware that KG was not interested in going along with the sexual activity he had initiated. [ 54 ] To be blunt – from the outset, and from this very first sexual overture, it is clear to me that Jessie wanted sex with KG, and that he knew or learned quickly that KG did not share his interest. [ 55 ] This act itself by Jessie – namely, placing KG’s hand on his penis in an unanticipated fashion without first securing her consent to sexual activity is, itself, a sexual assault, albeit in the context of this case, it is not the activity of primary importance. [ 56 ] With respect I do not consider that fact that KG told the police her hand was on, or may have been on, Jessie’s penis for perhaps as long as 20 or 25 seconds before she pulled it away, to be any indicator that there was, or may have been, some kind of consensual activity between KG and the accused Jessie. [ 57 ] It is not the amount of time that KG’s hand was on Jessie’s penis that is important; rather it is the fact that it was placed and held there, not by her, but the accused which matters. [ 58 ] I consider KG’s guess or estimate, when she talked to the police, about the ‘number of seconds’ which passed while Jessie held her hand to his penis to be nothing more than evidential minutiae. [ 59 ] Similarly, I am not suspicious of KG’s testimony about the two condoms: that she told the Court she actually picked up the condoms and saw the spent contents, whereas she told the police she only “assumed” that the condoms had been used.

In my view this discrepancy is also nothing more than unimportant evidential minutiae. [ 60 ] Indeed, KG also testified that she was not comfortable talking with a male officer, at all, about the incident, and so her estimate of 25 seconds as the time Jessie held her hand to his penis, and the fact she told the officer she simply assumed the condoms were used are not, to me, particularly telling against her credibility or reliability. [ 61 ] In this case, I found the complainant KG to be an honest and reliable witness.

She was not evasive, nor did she attempt to embellish what she had to say. [ 62 ] I was impressed as well with her forthright response when the theory of the Defence was put to her – namely, that she may have had consensual relations with Jessie and then come to regret it afterwards. She did not shrink from this suggestion in a manner that made me at all suspicious and did not she react in an angry or dismissive fashion. [ 63 ] She responded calmly, stating: “I did not have sex with him.

Even if I --- I wouldn’t know if I had sex with him, I don’t remember if I ever did.” {Trial transcript: p. 50, l, 3-5} [ 64 ] I understand this to mean firstly that KG is asserting that she did not have sex with Jessie (which in that context I understand to mean that she did not engage with Jessie in sexual activity of her own volition) and then adding, candidly, that she simply does not know if she had sex with him, and that if such activity occurred, she does not remember it. [ 65 ] She was clear, however, that she did not consent to such activity.

[ 66 ] Defence counsel also suggested to KG that she would not want to admit to her boyfriend that she had gone to Jessie’s place and had sex.

KG responded to this proposition by stating emphatically that “He (my boyfriend) was the first to know” {Trial Transcript: p. 49, l, 5} [ 67 ] And she added an additional assertion that: “I would tell him, obviously……” and ‘…If I had [consensual] sex with another person, then I would be straight-up, honest and tell my boyfriend what I had done.” {Trial Transcript: p. 49, l, 13-23.} [ 68 ] KG is clear in asserting that she was not drunk, but she had consumed somewhere around six ounces of straight liquor, vodka, in a fairly short time between 9:00am and roughly 11:00am. [ 69 ] Further, she had not slept at all the previous night - both she and QM had showed up at Jessie’s place after having pulled an “all-nighter.” [ 70 ] It is, in my view, understandable that as a relatively small person (she is slight in stature, and estimates her weight at 140lbs) KG could pass out as a result of both general fatigue, as she said, aided and abetted by the rapid consumption of alcohol, and not wake up at all until around 5pm, hours later. [ 71 ] I accept KGs testimony that when she awoke she felt soreness in her vagina and also that she discovered discharge on her body (albeit not from her vaginal area) and on her underwear. [ 72 ] Reviewing all the relevant evidence and weighing carefully the theory of the Defence, I do not accept that KG consented to sexual activity but regretted the encounter later after discovering that there was a repercussion she needed to deal with – namely, the discovery of chlamydia, and was motivated to cover her tracks (so to speak) by telling her father and boyfriend and eventually, the police that she had been violated. [ 73 ] I think it completely understandable that when KG woke up naked with the accused Jessie beside, that she was confused about what happened but carried on nonetheless over the next few days, or even a week, with her day to day routine at the same time fearing what Jessie might have done to her.

And further, that in response to this underlying fear or concern she decided, as a matter of caution, to have herself checked out at Public Health for a possible STD. [ 74 ] I also accept KGs testimony that after she discovered she had contracted chlamydia she texted Jessie and told him, “you raped me,” and that in response he texted a response by saying “I’m sorry, I was really hammered.” [ 75 ] And I accept KG’s testimony that upon receiving Jessie’s text she was angry with him – so much so that she deleted all of his previous texts.

It is understandable that KG would react in the moment by deleting Jessie from her phone rather than take pause to preserve his response as evidence. This behavior contradicts the suggestion that KG was “covering her tracks” as the Defence suggests.

Rather it shows KG was reacting in a forthright manner, consistent with her assertion of anger and growing sense of violation. [ 76 ] And, following on my previous finding that Jessie had a sexual interest in KG which she did not share, I find that after carrying her to the bedroom, he did at some point remove her clothing and had sexual intercourse with her while she was unconscious. [ 77 ] While the discovery of the chlamydia infection was the ultimate motivation for KGs reporting this incident to the police, the Crown acknowledged during argument that they had not provided me with relevant medical evidence to support this theory of transmission to a criminal standard. [ 78 ] The act of taking off KGs clothing is itself a sexual assault.

However, in this case that activity is simply part and parcel of the greater violation which I do find that the accused perpetrated – namely, having sexual intercourse with an unconscious victim. [ 79 ] Accordingly, and on the charge of sexual assault, I find the accused, Jessie Ningiuk, guilty. Dated at the City of Iqaluit this 8 th day of March, 2017

___________________ Justice N. Sharkey Nunavut Court of Justice