R v Idlout, 2023 NUCA 3

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Idlout, 2023 NUCA 3 Date: 20230224 Docket: 12-22-002 CAP Registry: Iqaluit Between: His Majesty the King Respondent - and - Solomon Idlout 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 By Court Order, information that may identify the complainant or witnesses must not be published, broadcast, or transmitted in any way.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. _______________________________________________________ Memorandum of Judgment _______________________________________________________ Appeal from the Conviction by The Honourable Justice Ingram Convicted on the 21st day of October, 2021

Sentenced on the 20th day of December, 2021 (Docket: 12-19-5) ______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: [1] On May 14, 2019, the appellant, who has known the complainant since they both were children, entered the complainant’shome through an unlocked door while she slept.

The appellant and complainant both testified they had sexual intercourse that night - theappellant testified that it was consensual, the complainant testified that she only consented due to threats of violence. [2] The trial judge rejected the appellant’s evidence, accepted that of the complainant and convicted the appellant of break andenter and committing a sexual assault contrary to section 348(1)(

d) of the Criminal Code, RSC 1985, c C-46. The appellant was alsoconvicted of the second count on the Indictment - uttering a threat to cause bodily harm contrary to

section 264.1(2) of the CriminalCode, but that conviction was stayed pursuant to Kienapple v R, (SCC), [1975] 1 SCR 729. [3] The appellant submits that the trial judge misapprehended the appellant’s evidence on a material point and providedinsufficient reasons for conviction. [4] The appeal is dismissed for the reasons that follow. Background [5] The trial was completed in less than a day. The complainant testified for the Crown and the appellant testified in his defence.Closing submissions by both counsel were completed by noon.

The trial judge adjourned until 2:30 pm at which time he gave his oralreasons convicting the appellant. [6] As noted by both counsel in their closing submissions, and the trial judge in his reasons, the evidence of the complainant andthe appellant was remarkably similar about the events of that night. The sole issue was consent. [7] The complainant testified that around 11:00 pm she fell asleep on the couch in her living room. She was wearing a long shirtand panties. Around 1:30 or 2:00 am she was awoken by someone tugging on her hips and trying to take off her panties. She saw theappellant standing over her.

The complainant asked the appellant what he was doing and why he was in her home. He said she had stolena bottle from him and “you owe me this”. The complainant understood the appellant was referring to sex and to a bottle of vodka she hadstolen from the appellant and his partner. The complainant pulled her panties back on. [8] The appellant and complainant went outside to smoke where the appellant told the complainant that his partner was veryangry about the stolen bottle.

The appellant said: “it’s either I rape you or she comes beat you up.” The complainant told the appellantshe did not want to choose, and the appellant turned to leave and said he would tell his common-law partner to come over then. Thecomplainant testified that she then said “Okay, I’ll -- I’ll -- I’ll sleep with you.” The complainant and the appellant went to thecomplainant’s bedroom, she gave the appellant a condom, undressed and laid down on the bed. The appellant and complainant hadvaginal intercourse.

Afterwards the appellant got dressed and left the house. [9] The complainant also testified she had not invited the appellant to her home nor had she extended an open invitation to himto visit her at her home. Further, she had not told him to come to her home that early morning. [10] The appellant testified he was drinking with his common-law partner and a third person when his partner became upset overan earlier incident when the complainant stole a bottle of vodka. The appellant’s common-law partner said she wanted to beat up thecomplainant.

In an effort to calm his partner down and to not have his partner get into trouble, the appellant told her that instead of hergoing to beat the complainant up, he would rape the complainant. He testified that he was not going to go through with it and that he waslying to his partner to calm her down. [11] The appellant testified he walked to the complainant’s home and entered through the unlocked front door. The complainantwas asleep on the couch. He pushed the complainant on her hips to wake her up. When the complainant awoke, she asked him what hewas doing there.

The appellant told the complainant that his partner was really upset with her about the stolen bottle of vodka and hispartner wanted to beat up the complainant but the appellant stopped his partner from doing that. The appellant testified in direct: Q Okay, and what happened after? A She woke up and she asked what am I doing here. And then I told her that [appellant’s common-law partner] was really upset that shestole a bottle and I explained to her that [the complainant] wanted - - [appellant’s common-law partner] wanted me to rape you, but I’mnot going to do that.

Q Okay. A And then I asked her what she wants to do. Like, if she’s going to pay up or - or what she wants to do she said, Let’s talk about it. Andwe go out for a cigarette. [12] The appellant and complainant went outside to the porch to smoke a cigarette and the complainant said the bottle would bereplaced. The appellant testified he asked the complainant if she wanted to have sex “for fun” and she agreed. The appellant asked thecomplainant again in the bedroom if she wanted to have sex and she said she still wanted to. The appellant said she didn’t have to and hewould just tell his partner they had sex anyway.

The appellant put on the condom and had vaginal intercourse with the complainant.After about 20 minutes the complainant asked him to stop because she was tired. The appellant got dressed and left. [13] The defence argued that even if the appellant’s testimony was not believed, on the third step of R v W(D), (SCC), [1991] 1 SCR 742 there was a reasonable doubt that the appellant’s intention was to have sex with the complainant without herconsent. The Crown suggested the evidence of the appellant was neither reliable nor credible.

Further, the Crown relied on Sansregret vThe Queen, (SCC), [1985] 1 SCR 570 and argued that consent to sexual activity to prevent violence is not consent. [14] Following the close of evidence, the trial judge took an adjournment of a few hours and returned and gave an oral judgmentconvicting the accused. The trial judge reviewed W(D), the evidence of the complainant and appellant, and concluded as follows[emphasis added]: I reject the evidence of the accused.

It makes no sense that he announced to others that he was going to commit the rape, was mad, anddrinking, entered the residence uninvited in the middle of the night, woke her up, gave her two choices of rape or being beat up byanother; and when she agreed to sex, asked her several times if she was consenting. For her part, the complainant gave straightforward testimony and obviously was faced with a difficult choice. Consent to sexual relationscannot be obtained by threats or fear of the application of violence. It was a threat of violence that brought the complainant to participatein the sex.

Analysis Misapprehension of the Evidence [15] The alleged misapprehension is underlined above. [16] The appellant argues the statement above was a misapprehension of the evidence. The appellant’s evidence was not that hegave the complainant a choice; that evidence came from the complainant. [17] The Crown submits the trial judge did not misapprehend the evidence in that on the appellant’s own testimony, there was ageneralized threat of violence towards the appellant.

The appellant told the complainant his partner wanted to come and beat her up, buthe “volunteered” to go and rape her instead, although he testified he told the complainant he wasn’t going to do that.

Alternatively, theCrown argues that if the statement above was a misapprehension, this error did not affect the outcome of the trial because elsewhere inthe reasons, the trial judge correctly described the appellant’s evidence; for example, in recounting the appellant’s evidence the trialjudge later stated that the appellant “mentioned the choice of rape or being beaten up although he indicated it was not his intention tocarry through with the rape”. [18] Whether the trial judge misapprehended the evidence is a stringent test.

The error must go to substance rather than detail, bematerial rather than peripheral, and play an essential

part in the reasoning process leading to conviction: R v Lohrer, 2004 SCC 80 at para2. [19] We do not accede to this ground of appeal. While we acknowledge the evidence of the appellant was not that he gave thecomplainant a choice, the trial judge’s reasons before this sentence correctly set out the evidence of the appellant. The trial judge clearlyunderstood and appreciated the evidence of the appellant. Thus, in our view, the trial judge misspoke at this point of his reasons asopposed to misapprehending the evidence. Therefore, this ground of appeal fails.

Sufficiency of Reasons [20] The appellant argues that the trial judge failed to provide sufficient reasons capable of meaningful appellate review. Theappellant argues that it was not sufficient for the trial judge to merely recite the evidence of the witnesses - the trial judge was required toreduce the recitation of the evidence into findings of fact.

The appellant also argues that the trial judge’s reasoning was conclusory andshields the reasons from appellate review because conclusory statements may hide erroneous legal reasoning. [21] The appellant argues that the insufficient reasons are concerning in two respects. First, the appellant argues that the trial judgeerred in his credibility assessment by finding that the appellant’s evidence made no sense without explanation. The appellant argues thatthere is a risk that the trial judge relied on stereotypes and failed to consider the norms and customs of this small and remote indigenouscommunity.

For example, he argues that the significance of a dispute over a bottle of vodka and the reasonableness of the appellant’sbelief that it was customary to walk into the homes of friends must be assessed in the context of the community in which the offenceoccurred. Second, the appellant argues that the trial judge assessed the evidence as a credibility contest between the accused and thecomplainant, and there is no discernable pathway through the W(

D) analysis. [22] The Crown argues that when the reasons are read as a whole, in the context of the evidence, the issues, and the arguments at

trial, they sufficiently respond to the issues that were before the court.

The Crown also argues that this court should consider the brevity of the reasons in the context of a trial on circuit in Resolute Bay, Nunavut. [ 23 ] In R v GF , 2021 SCC 20 at para 69 , the Supreme Court of Canada reminded appellate courts that “…they must assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review.” And at para 70 said: “If the trial reasons do not explain the ‘what’ and the ‘why’, but the answers to those questions are clear in the record, there will be no error: R.E.M ., at paras. 38-40; Sheppard , at paras. 46 and 55.” [ 24 ] In assessing this ground of appeal, it is important to remember the evidence of the appellant and the complainant was remarkably similar except on the issue of consent.

It is this aspect of the trial judge’s reasons that are critical. The trial judge’s reasons do permit appellate review as they demonstrate he disbelieved the appellant’s evidence on this key point.

Specifically, the reasons demonstrate the trial judge disbelieved the appellant’s evidence that he asked the complainant if she wanted to “have sex for fun”, to which she said yes, and then he asked her twice more if she was consenting, because it made no sense in light of the below, all of which preceded the sexual activity: • The appellant was mad at the complainant about her having stolen a bottle of vodka from he and his partner; • The appellant told his partner he was going to rape the complainant; • The appellant was drinking that evening; • The appellant entered the complainant’s home at approximately 1:30-2:00 am, uninvited, in that the complainant was sleeping in her living room because she just happened to have fallen asleep on her couch that evening; • The appellant said he tried to wake the complainant, who was in a sleeping shirt and panties, by pushing her exposed hip and panties as opposed to shaking her on the shoulder. [ 25 ] Having disbelieved the appellant, the trial judge had just instructed himself mere minutes before “…even if the evidence of the accused is not believed and does not raise a reasonable doubt, but other evidence that is accepted raises a reasonable doubt, the court must acquit.” On the facts of this case, there was no other evidence but for the complainant’s.

Trial counsel for the appellant made one submission in her closing submission as to why the trial judge should not accept the evidence of the complainant suggesting a possible motive to fabricate on the part of the complainant. The difficulty with the submission is that neither the appellant nor the complainant were asked any questions that could provide any basis for the submission. Thus, on the facts of this case, the submissions of counsel, and the live issue for the trial judge to decide, there was no basis for the trial judge not to have accepted the evidence of the complainant.

Accordingly, we find this ground of appeal has no merit [ 26 ] In conclusion, we dismiss the appeal. Appeal heard on February 14, 2023 Memorandum filed at Iqaluit, Nunavut this 24 th day of February, 2023 Authorized to sign for: Smallwood J.A. Hughes J.A. Antonio J.A.

Appearances: E. Baasch For the Respondent R. Clements For the Appellant