R v Kownirk, 2023 NUCA 2

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Kownirk, 2023 NUCA 2 Date: 20230222 Docket: 08-22-013 CAP Registry: Iqaluit Between: His Majesty the King Respondent - and - Newkinga Kownirk Appellant Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that may identify the complainant or witnesses must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________ The Court: The Honourable Justice Shannon Smallwood The Honourable Justice Elizabeth Hughes The Honourable Justice Jolaine Antonio _______________________________________________________

Memorandum of Judgment Appeal from the Conviction and Sentence of The Honourable Justice G.M Mulligan Dated the 18th day of March and the 12th day of July, 2022 ( 2022 NUCJ 11 , 2022 NUCJ 29; Docket: 08-20-195) ______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: Introduction [ 1 ] The appellant Newkinga Kownirk appeals his convictions for sexual assault (

section 271 of the Criminal Code ) and failure to comply with a probation order (

section 733.1(1) ). If necessary, he also seeks to appeal his sentence of 48 month for the sexual assault and two months concurrent for the failure to comply. Facts [ 2 ] The only witnesses at the one-day trial were the complainant and the appellant. [ 3 ] The complainant was visiting her aunt in Iqaluit. She met the appellant for the first time outside a store and he invited her for drinks at the apartment he shared with his mother.

The complainant arrived at the apartment around 11:00 am and she, the appellant and his mother started drinking beers. [ 4 ] The complainant was unsure how much she drank but thought it was more than usual. She thought they had been drinking for hours. [ 5 ] The complainant testified that she “blacked out” and the next thing she remembered was the appellant having sex with her in the bathroom. Vaginal and anal penetration took place. She then blacked out again. She remembered standing with both hands leaning on a table and her pants were off.

She initially did not recall, but was reminded about, her statement to the police in which she said the appellant was smiling during the assault. She told the appellant to “get off”. She could not recall his response. [ 6 ] She next recalled being at her friend’s house but did not know how she got there. She believed she was injured because when she went to go pee, she “shit blood”. She went to the hospital the next day or two but no useful DNA evidence was found. [ 7 ] She testified that although she blacked out, she had some recollection.

She did not consent to sexual activity and there had been no previous discussion about sexual activity between them. [ 8 ] The appellant testified that he thought the complainant had about 4 or 5 beers and did not think she was all that drunk. When his mother left the house after about an hour, he followed the complainant to the bathroom. He asked her if she wanted to make out and she said it was all right. They started kissing in the bathroom and had sex in the bedroom. He stopped when she told him to stop and then she left. [ 9 ] The appellant argued a mistaken belief in consent.

The Crown argued the complainant was incapable of consent due to her intoxication and that on the appellant’s own evidence, there was no consent to anal intercourse. Conviction Appeal - Trial Judge’s Reasons [ 10 ] The trial judge’s reasons for verdict are found at R v Kownirk , 2022 NUCJ 11 . [ 11 ] The trial judge considered

section 273.2 which imposes a precondition to the defence of honest but mistaken belief in communicated consent: the accused must take reasonable steps to ascertain that the complainant was consenting. He reviewed R v Barton , 2019 SCC 33 , which explained the objective and subjective dimensions to the reasonable steps analysis. [ 12 ] The trial judge found the reasonable steps requirement was elevated as both parties had been drinking heavily, they were

unfamiliar with each other, the sexual activity was invasive in nature and there was an enhanced risk to the complainant’s health andsafety. [13] According to the appellant’s testimony, the complainant’s response, taken at its highest, was not activity-specific and was notan agreement to sexual activity of an unspecified scope. [14] The trial judge was not satisfied the appellant took reasonable steps and found no air of reality to the defence of honest butmistaken belief in consent. [15] He considered the four elements of the offence of sexual assault.

There was no dispute that there had been intentionaltouching and it was of a sexual nature. He accepted the complainant’s evidence that she did not consent to the vaginal and analpenetration. He considered whether, even absent a defence of honest but mistaken belief, the Crown had established the necessary mensrea. Considering all the evidence, the trial judge found the appellant was wilfully blind to whether the complainant consented. [16] He found the appellant guilty of sexual assault.

Conviction Appeal - Grounds of Appeal [17] On the conviction appeal, the appellant argues the trial judge erred by: 1. misapprehending the appellant’s evidence about the steps he took to obtain the complainant’s consent; 2. misapprehending the complainant’s evidence about the chronology of events that day; 3. finding there was no air of reality to the defence of mistaken belief in consent; 4. conflating the complainant’s lack of memory with a lack of capacity to consent; 5. failing to apply the third step of R v W(D), (SCC), [1991] 1 SCR 742, and assessing the evidence as a credibilitycontest between the appellant and the complainant; 6. allowing the Crown to cross-examine the complainant when the Crown asked the complainant to read several portions of her policestatement and then asked her a series of leading questions; and 7. providing insufficient reasons.

Conviction Appeal - Analysis Ground 1: Misapprehension of evidence [18] The trial judge found the appellant “asked if she wanted to make out” and “[t]hat was the extent of his inquiry”: Kownirk,2022 NUCJ 11 at para 35. The appellant submits these statements show the trial judge misapprehended his evidence, leading to amiscarriage of justice. [19] The appellant alleges the trial judge misapprehended two aspects of his evidence. First, he submits he did make a specificinquiry regarding anal sex. The record does not support this assertion.

The appellant testified he asked generic questions such as “can wedo it” or “can we have sex”. [20] Second, the appellant submits he testified to asking several times, and therefore the trial judge erred in concluding he onlyasked once. This is a misreading of the trial judge’s reasons. It is clear from the context that when he referred to the “extent of inquiry”by the appellant, he meant the nature or scope of his inquiry, not the number of repetitions. In his analysis, the trial judge found therewas a heightened need for clarity between these near strangers who had been drinking heavily.

He found the appellant’s question was notactivity-specific and there was no agreement to sexual activity of an unspecified scope. [21] We are not satisfied the trial judge misapprehended the evidence in this short trial. Ground 2: Mistaken belief [22] The trial judge correctly stated the law: there is an elevated need for clear communication in certain circumstances.

Heconcluded such circumstances were found here and “can we do it” was an insufficient step taken to communicate what he wished to doand to ascertain whether the complainant consented to it. [23] The air of reality test requires “(1) that the accused honestly believed the complainant communicated consent, and (2) that theaccused took reasonable steps to ascertain consent”: Barton at para 121; R v Gagnon, 2018 SCC 41, [2018] 3 SCR 3.

If the evidence isnot capable of satisfying any one of the required elements, the defence of honest but mistaken belief can be ignored: Barton at para 122. [24] We see no reason to interfere with the trial judge’s conclusion that the steps taken were not reasonable in the circumstances,and that absent reasonable steps, there was no air of reality to the defence of honest but mistaken belief.

Ground 3: Conflating lack of memory with lack of consent [25] The appellant submits the trial judge erred in equating the complainant’s lack of memory with lack of capacity to consent.

Hesays there was no direct evidence of her incapacity, and the trial judge failed to determine that incapacity was the only reasonableinference from the evidence. [26] In R v GF, 2021 SCC 20 at paragraph 57, the Supreme Court stated that capacity to consent consists of the capacity tounderstand four things: 1. the physical act; 2. that the act is sexual in nature; 3. the specific identity of the complainant’s partner or partners; and 4. that they have the choice to refuse to participate in the sexual activity. [27] In determining the complainant’s lack of consent, the trial judge stated at paragraphs 40-41 of his reasons: I accept [the complainant’s] evidence that she had gaps in her memory from alcohol consumption and only regained awareness whensexual activity began in the bathroom, a place where [the complainant] was in a private space.

There had been no prior talk about sexualactivity. She went to the house to enjoy some drinking and his mother was home with them, at least until the bathroom incident. I accepther evidence that she had limited memory from alcohol consumption and said no when she became aware of his sexual activity.

Therefore, I am not satisfied that she consented to the vaginal and anal intercourse that took place. [28] The trial judge’s reasons meet standard for appellate review as stated in GF at paragraph 64: [I]t was open to the trial judge to find both that the complainant was incapable of consenting and did not agree to the sexual activity inquestion. In the context of this case, the trial judge did not err in addressing these issues together in his reasons. Both findings went to alack of subjective consent, thus establishing the final element of the actus reus.

They did not need to be reconciled with each other, norapproached in any particular order. [29] In this case, the trial judge made no explicit finding of incapacity. He reviewed the complainant’s alcohol consumption;acknowledged her memory gaps before, during and after the sexual contact; and found she said “no” once she became aware of what washappening. Implicit in his finding is that prior to that, she was not aware of what was happening. Applying the test from GF to thesefacts, he concluded she lacked capacity to consent.

We see no reviewable error in his conclusion. [30] The appellant submits the complainant’s incapacity should have been corroborated by other direct evidence. Absence ofcorroboration does not affect the reviewability of the trial judge’s finding. We decline to impose a legal requirement for corroboration insexual assault matters, even as pertains to capacity. Ground 4: W(D) [31] The appellant submits the trial judge failed in his application of the W(

D) test as he did not consider whether he was left witha reasonable doubt based on the whole of the evidence. [32] The trial judge stated at paragraph 16: This case is not a credibility contest between a complainant and an accused person. When I consider the evidence of the accused, I willapply the test in R v W(D) (SCC), [1991] 1 SCR 742. If I believe the accused, I must find him not guilty. If I do notbelieve him then I must consider whether I am left with a reasonable doubt about what happened.

If I am unable to decide whom tobelieve, then I must find him not guilty. [33] The trial judge did not parrot the exact words of W(D); nor was he required to do so.

His statement of the law correctlycaptured its meaning. [34] While it is true that the trial judge did not examine the appellant’s evidence in detail, in this case, the fact of sexual contactwas not at issue and the trial judge rejected the mistaken belief defence because, taking the appellant’s evidence at face value, it did notmeet a legal standard. [35] At paragraph 43, he expressly stated he had reviewed all the evidence, including the testimony of the appellant, and had nodifficulty finding the complainant did not consent and the appellant was wilfully blind to her lack of consent.

These reasons, combinedwith his previous statement of law, are sufficient to discharge the trial judge’s obligation under W(D). Ground 5: Crown improperly cross-examined the complainant [36] The appellant submits the complainant was allowed to read in several portions of her statement to the police without followingthe proper procedure under section 9(2) of the Canada Evidence Act, RSC 1985, c C-5.

He further submits the Crown asked her a seriesof impermissibly leading questions; her answer regarding the appellant smiling during the incident was not admissible; and as it formed acrucial part of the trial judge’s reasons, the result was an unfair trial.

[37] To refresh her memory, the complainant was offered a chance to review her police statement. She was asked some of the samequestions that appear in her police statement, but she answered those questions independently of the statement. The statement was notread into the record. [38] There was no attempt to impeach the complainant through cross-examination and therefore no reason to apply section 9(2).The questions asked of the complainant were not leading questions, but narrow ones. In any event, no objections to the questions wereraised at trial. [39] This ground of appeal is dismissed.

Ground 6: Adequacy of reasons [40] The appellant submits the trial judge’s failure to give reasons as to why the complainant’s lack of memory did not raise areasonable doubt about her consent does not allow for effective appellate review. [41] Reasons will be adequate if, when read in their entire context, they meet three purposes: informing the parties of the basis ofthe verdict, providing public accountability and permitting appellate review: R v REM, 2008 SCC 51 at para 11, [2008] 3 SCR 3.

Thereasons are sufficient if when “read in context, [they] show why the judge decided as he did on the counts relating to the complainant”:R v Vuradin, 2013 SCC 38 at para 15. [42] The trial judge’s reasons provide a logical and coherent basis for his verdict and therefore meet the requisite standard. Conclusion on conviction appeal [43] The conviction appeal is dismissed. Sentence Appeal – Trial Judge’s Reasons [44] The trial judge’s reasons for sentence are found at R v Kownirk, 2022 NUCJ 29. [45] At sentencing, the trial judge considered the appellant’s circumstances.

He is a 41-year-old Inuk and has an extensive criminalrecord spanning 20 years. At the time of the offence, he was subject to a probation order and a release order. [46] He was adopted to a woman in Pangnirtung but also spent time with his biological mother. His father died when he was 13.The appellant does not have much of a work record and has spent considerable time living at a men’s shelter. He completed someprograms including one at Nunavut Arctic College.

Alcohol has been an issue in his life, but he has had some lengthy periods of sobriety. [47] The Crown submitted a fit sentence was 3 to 4 years’ incarceration, while the defence sought 30 months. [48] As a mitigating factor, the trial judge found the appellant expressed remorse, although late in the process. Aggravating factorsincluded the appellant’s extensive criminal record and the fact the offence was a violent sexual assault on a vulnerable Inuk woman. [49] Because the appellant is an Inuk man, the trial judge applied

section 718.2(

e) of the Criminal Code and the principles statedin R v Gladue, (SCC), [1999] 1 SCR 688 and R v Ipeelee, 2012 SCC 13 , [2012] 1 SCR 433. That is, asentencing judge ought to use a method of analysis that recognizes systemic and background factors affecting Indigenous people. Thetrial judge noted these principles must be applied even where serious offences have been committed. [50] Because the victim is an Inuk woman, the trial judge applied

section 718.04 of the Criminal Code. That provision directssentencing judges to give primary consideration to the objectives of denunciation and deterrence. The trial judge cited both the trial andappeal decisions in R v Kolola, 2020 NUCJ 38 and 2021 NUCA 11, where the courts commented on the vulnerability of Indigenouswomen and the problem of violence against women in Nunavut. [51] He reviewed a number of comparator cases including R v Parr, 2020 NUCA 2, R v A(J), 2009 NUCJ 3, R v Delorme, 2011NWTSC 14, R v Idlout, 2021 NUCJ 50, and R v Pauloosie, 2022 NUCA 3.

The sentences in those cases ranged from two years less aday for an offender with no prior criminal records to five years for an offender with a serious criminal record. [52] Apparently in response to counsel’s submissions on the importance of targeted institutional programming, the trial judge alsotook note of sections 79.1 and 80 of the Corrections and Conditional Release Act, SC 1992, c 20, which address penitentiary sentencesfor Indigenous offenders.

They mandate consideration of the factors that contribute to the custodial overrepresentation of Indigenouspeoples, as well as the offender’s Indigenous culture and identity and targeted programs. [53] The trial judge found that while a penitentiary term is a harsh sentence for a resident of Nunavut, given the nature of thesexual assault, the appellant’s extensive criminal record and his poor history of probation compliance, a penitentiary term was warranted.He sentenced the appellant to four years for the sexual assault, with a brief concurrent sentence for the breach offence.

After deductingpretrial custody credit of 19.5 months, 28.5 months remained to be served. As this sentence exceeded two years, the appellant wouldhave to serve it in an institution outside Nunavut. Sentence Appeal - Grounds of Appeal [54] On the sentence appeal, the appellant argues the trial judge overemphasized some factors and underemphasized others. He

also argues the trial judge failed to consider the impact of sending the appellant out of the territory to serve the sentence. Sentence Appeal - Standard of review [ 55 ] Unless a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit.

An error in principle, failure to consider a relevant factor or erroneous consideration of an aggravating or mitigating factor will justify appellate intervention only where it appears from the trial judge’s decision that such an error had an impact on the sentence: R v Lacasse , 2015 SCC 64 at paras 11 , 44, [2015] 3 SCR 1089. Sentence Appeal - Analysis [ 56 ] The appellant submits the trial judge “failed to consider the impact of sending the Appellant out of the territory to serve his sentence”. [ 57 ] This contention is not supported by the reasons for sentence.

The trial judge turned his mind to this issue, as is apparent from paragraph 49 of his reasons: There is no doubt that a penitentiary term is a harsh sentence for a resident of Nunavut because it involves being incarcerated outside of the territory and a great distance away from any family or community support. But given the nature of this sexual assault, Mr.

Kownirk’s extensive criminal record, and his poor history of probation compliance, a penitentiary term is warranted. [ 58 ] The appellant further submits the trial judge erred “by allowing s 718.04 to trump other sentencing principles, in particular s 718.2(e)”. [ 59 ]

Section 718.04 of the Criminal Code provides: When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.

Section 718.2 (

e) of the Criminal Code provides: A court that imposes a sentence shall also take into consideration the following principles: . . . (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. Both these provisions are designed to promote recognition of the harms caused to Canada’s Indigenous peoples by colonialism. [ 60 ] As the Crown notes in its factum, however, “they serve different social objectives, with s. 718.04 addressing the over representation of violence against Indigenous women and girls, and with s. 718(2)(

e) addressing the over-incarceration of Indigenous offenders.” [ 61 ] While Indigenous men and women may bear the burdens of colonialism equally, the harms of sexual violence are overwhelmingly borne by women, and in particular, Indigenous women. As the Nunavut Court of Appeal stated in R v Kolola at paragraphs 28 and 29, “The prevalence of sexual violence against women in Nunavut has been known for many years”.

It is open to sentencing judges “to emphasize the nature, severity, and impact of sexual violence on women in Nunavut in the sentencing process . . . [and] to address and remedy the failings within the criminal justice system in this area: R v Barton , 2019 SCC 33 at para 1 ”. [ 62 ] The trial judge cited Kolola and numerous other authorities in considering sections 718.04 and 718.2(e).

His reasons disclose no errors in principle and his balancing of relevant factors attracts deference. [ 63 ] The sentence was within the range of sentences imposed in Nunavut for penetrative sexual assaults on a sleeping or unconscious victim. The quantum imposed is not demonstrably unfit. Conclusion on sentence appeal [ 64 ] The sentence appeal is dismissed. Appeal heard on February 14, 2023 Memorandum filed at Iqaluit, Nunavut this 22nd day of February, 2023

Authorized to sign for: Smallwood J.A. Hughes J.A. Antonio J.A. Appearances: C. D’Souza For the Respondent M. Martin For the Appellant