HER MAJESTY THE QUEEN, ) Mr. D. Gray, Crown ) v. ), 2011 MBPC 41

2011 MBPC 41 THE PROVINCIAL COURT OF MANITOBA (THOMPSON CENTRE) BETWEEN: HER MAJESTY THE QUEEN, ) Mr. D. Gray, Crown ) -and- ) ) GORDON BIGHETTY, ) Mr. T. Buzza, Defence Accused ) ) ) Decision of July 26, 2011. THOMPSON, M.P., ACJ THE CHARGE 1 . Gordon Bighetty (a.k.a. Brooks Bighetty) is charged with sexually assaulting Charlotte Linklater. It is alleged to have happened near Leaf Rapids, Manitoba on October 8 th , 2006. OVERVIEW: 2 . The Crown alleges that Mr. Bighetty had forcible intercourse with Charlotte Linklater on the front seat of his truck on a remote turnoff just outside of town. Mr.

Bighetty denies that any sexual activity took place. 3 . Mr. Bighetty is related to the complainant. Charlotte Linklater is his mother’s sister by adoption; making her his aunt. She was several months pregnant with her third child at the time in question. William Baker was her common law partner. 4 . The Crown alleges that Mr. Bighetty, answered the complainant’s call for a ride home around supper time, after she spent

the afternoon visiting a girlfriend’s home. He gave her a ride but instead of dropping her off at her home, drove her to a secluded area outside of town and had forcible, nonconsensual sexual intercourse on the front seat of his truck. 5 . The accused subsequently drove the complainant home. The Crown alleges the complainant washed herself and later that evening attended to the local nursing station to obtain medical treatment for vaginal bleeding. She subsequently burned her clothing and 17 days later made a complaint to the police. No forensic evidence was obtained as a result. 6 . Mr.

Bighetty testified in his own defence. He confirmed that he picked her up and took her for a ride out of town before dropping her off at her home, but denied that any sexual activity took place with Ms. Linklater. ISSUES: 7 . Mr. Justice Cory of the Supreme Court of Canada in R. v. W.D. identified a three step process to ensure that the trier of fact remains focused on the principle of reasonable doubt when an accused testifies: First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. 8 . This is a case that will turn on findings of credibility.

I will now review the testimony of the two most important witnesses, the only two witnesses who were present when intercourse allegedly took place, the accused, Gordon Bighetty and the complainant, Charlotte Linklater. TESTIMONY OF GORDON BIGHETTY: 9 . The accused testified in his own defence at trial. There are significant problems with his evidence. 10 . His evidence was inconsistent. 11 . During direct examination, I noted the following exchange between defence counsel and Mr.

Bighetty: Q: Back in October of 2006 an allegation had been made that you sexually assaulted the previous witness that you observed, Charlotte Linklater, and she explained to the court that on that day October 8 th she called you for a ride. Do you recall that? A: Yes I do. Q: What happened as a result of that call? A: She called my house at 6…She asked me to pick her up at Donna Preston’s. She told me to drive her home. And later he testified… A: We went by and I told her all this information and she looked, she was quiet. We went towards the, ah, bridge…

12 . Ms. Linklater’s instructions were clear. She told Mr. Bighetty to drive her home. While Mr. Bighetty agrees he picked her up, he did not drive to her home. 13 . Instead he drove past the turnoff to her residence on the main highway heading out of town. In direct testimony he made no mention of any discussion with Ms. Linklater as to why he did not take the turn to her house. 14 . When cross examined Mr. Bighetty had this to say: A: I asked her if she wanted to go for a ride down the road. Q: Ok, so you asked her if she wanted to go for a ride down the road? A: Yes. Q: So you did say that? A: Yes.

Q: Well I must have misunderstood your evidence in chief then, because I understood that you said that you were so busy talking you missed the turn and the first turn you came to, you turned around and came back. Isn’t that what you said in direct? A: Yes. Q: Then when did you tell her you wanted to go for a ride? A: When I missed the turn. Q: Ah, so you did say “do you want to go for a ride?” A: Yes I did. Q: Did you say that in direct, because I don’t remember you saying that? You seem to have missed that part. A: Well. I remembered. Q: You remembered now. You didn’t remember when Ms.

Linklater said it on the stand, that that’s what you said? 15 . This is important evidence regarding the accused’s credibility. It corroborates a significant piece of Ms. Linklater’s story, and shows an internal inconsistency in Mr. Bighetty’s testimony. 16 . There was more inconsistent testimony from the accused. 17 . Although Mr. Bighetty suddenly remembered during cross examination that he had asked the complainant to go for “a ride down the road”, in fact what he said then occurred was the exact opposite.

Rather than going for ride down the highway, he testified that he only drove to the Churchill River Bridge, turning around there because it was his first opportunity to do so safely. He agreed that bridge was a short distance from town, about 1 mile. He offered no explanation as to why he changed his mind and cut the ride short. 18 . Mr. Bighetty testified that he had a conversation with Charlotte Linklater during this truck ride. He told her about his plan to get an injunction to block a Hydro settlement.

If successful, as a Band member she would not receive the $1,000 lump sum payment for each family member that had been negotiated. He also testified that he told her he was “a little pissed off” with her common law partner, William Baker, for leaving nets in the water and traps on the land in a resource area he shared and that he would be going to Department of Natural Resources (DNR) with his complaints. 19 . It is clearly understood that an accused is never under any obligation to provide an explanation for why a complainant might fabricate a criminal complaint. Mr.

Bighetty volunteered the above testimony in direct. The inference being that possible motives for the complainant to fabricate an allegation of sexual assault against him included her anger with him over delaying Hydro compensation for her family as well as Mr. Bighetty’s threat to take away her common law partner’s trapping and fishing livelihood by going to DNR with complaints of resource management neglect and abuse.

20 . What Mr. Bighetty did not volunteer and what took an excruciatingly long time for him to concede during cross examination was that he had already gone to DNR with these complaints prior to this conversation with Charlotte Linklater (emphasis added). 21 . During cross examination the Crown suggested that in effect this would have been an empty threat seeing as he had already made the complaint about William Baker to DNR. Mr.

Bighetty then insisted that the matter was not over when he made his initial complaint to DNR and that it was an ongoing matter that he was going to pursue with DNR and the Mathias Colombe Band, thereby suggesting this was still a valid threat. 22 . However, during further cross examination, Mr. Bighetty was forced to concede that he never raised this matter again with DNR or with Mathias Colombe Band. He agreed with the suggestion that as a Band Councillor at the time, he had the authority to add it their agenda at any time. He simply never did. 23 .

His response that once the charge of sexual assault was laid and he was then subject to release conditions including no contact, rang rather hollow with me. He did not have to initiate contact with either the complainant or her common law spouse to pursue his complaint with DNR or the Band. 24 . Simply put, Mr. Bighetty’s story that he threatened the complainant that he was taking action to have her spouse’s livelihood taken away is not credible.

Further, I find that he concocted this testimony in an effort to infer or suggest the complaint had motivation to fear or hate him and thereby fabricate her allegation of sexual assault. I am aware that I can only make use of this evidence to assess the credibility of the story offered by the accused and repeat that an accused never carries any obligation to suggest why a complainant might lie. 25 . During cross examination the Crown had great difficulty in getting a clear answer to direct questions from Mr. Bighetty. Several times the Crown had to repeat direct questions to Mr.

Bighetty on what would seem to have been straight forward matters, such as when he first learned that nets had been left in the water and when he met and raised these issues with DNR. Mr. Bighetty’s answers were frequently not responsive and at times evasive. Here is but another example: Q: And you do agree with me that Charlotte was five and a half months pregnant at that time, right? A: Probably yeah. Q: Well she was pregnant; you knew she was pregnant at that time, right? A: Yup. Q: She was showing she was pregnant. A: Ah yup. 26 . Until pressed, Mr.

Bighetty would not concede the obvious; that the complainant was visibly pregnant at the time. 27 . In closing argument the Crown submitted that his testimony was evasive and that his intention throughout was to obviscate and misdirect. I agree. 28 . To summarize his evidence, there are significant inconsistencies and contradictions within his trial testimony itself. I also find that his testimony was evasive and frequently attempted to misdirect and cloud the issues he was being questioned about. 29 . Turning to the W.D. test, for the reasons outlined above, I do not believe the evidence of the accused.

I reject it. Secondly, the accused’s testimony does not leave me with a reasonable doubt. 30 . The third step of the W.D. test requires that even where I am not left in doubt by the evidence of the accused, that I must ask

myself on the basis of the evidence that I do accept, whether I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. 31 . To that end, I now turn to an analysis of the evidence of the complainant, Charlotte Linklater. TESTIMONY OF CHARLOTTE LINKLATER: 32 . I find the evidence of the complaint, Charlotte Linklater age 28 years, to be consistent, detailed and straight forward. 33 . She said she called “Brooks” for a ride, saying that was something she did if it was chilly (it was late afternoon of October 8 th ). 34 .

She testified that when he drove by her turn, she told him that he missed her turn and he replied, “Lets go for a ride”. She stated that in fact they did go for a ride, past the bridge and down the main highway, only stopping after he turned off the highway down a dirt road, eventually stopping some distance from town. He parked where they could not see the highway and got out of the truck. 35 . Ms. Linklater testified that when Brooks got out the truck and went around behind, she assumed he was going to use the washroom.

Instead, he came around to the passenger side, opened her door and turned her towards him by grabbing her thighs, swinging her legs around to face him. He ripped her pants down, causing her right shoe to fly behind the seat. With her pants and panties down on one side and completely off her other leg, the accused pushed her back with the weight of his upper body and had forcible intercourse. She did not consent and did not want this to happen. She struggled and told him no. Because she could not physically fend him off she closed her eyes saying she could not believe this was happening. 36 .

When he got off her she stated that he walked to the back of the truck where he used something to wipe himself off. She got dressed, got her shoe from the back seat. He drove her home in silence, stating she was in shock. She went to the Health Centre that night for vaginal bleeding out of concern for her pregnancy. She made a complaint to police 17 days later, saying she could not let it go and that she had to do something about it. 37 . When asked what happened to her clothing from that day, she said she washed them and then burned them.

When she testified that she did not want those clothes, I observed a look of disgust on her face. 38 . During cross examination it was put to her that: “Brooks” had told you that he was going to turn in William (her common law spouse) for fishing violations and that’s why you made this up? 39 . I was struck by her response. Her answer as I recorded it was “No, that is so not true.” She had a look of surprise on her face that I made particular note of which enhanced my belief that she was being truthful. 40 .

Despite no physical evidence, the Crown offered evidence to corroborate her emotional demeanor immediately after the sexual assault. The complainant’s mother-in-law, Alice Mary Baker, testified that in October of 2006 she saw the accused drop Charlotte off at her house on Niskew Bay in Leaf Rapids. Charlotte was living in her home with her spouse and two children at the time. 41 . She testified that Charlotte left in the afternoon to visit her friend Donna Preston and that she was happy when she left.

42 . In contrast, upon being dropped off at the house by Mr. Bighetty at supper time, she described Charlotte as follows: When she came home she looked so angry and so hurt. She came inside. Right away I asked her “Are you OK?” She did not answer me. She went to her room 43 . When testifying in direct, the complainant was asked if the accused got himself fully in the truck when the sexual assault took place and whether he had his feet on something. She answered that he got one foot on the “What do you call it”. She struggled for a word to describe it. I then asked her if it was a step.

The Crown then asked her if it was like a running board and she answered “yeah, something like that”. She was uncertain and ambiguous in her evidence on that specific point. 44 . The accused then testified that his truck had no step bars and that it was high off the ground. 45 . In my view this was not a meaningful inconsistency. The complainant was not certain in her testimony that the truck had a running board or step. She could only state for sure that it was a black truck and could not even say what type it was. 46 . I believe Charlotte Linklater.

Her evidence and testimony was not challenged in a meaningful way. 47 . Date, jurisdiction, identity have all been proven by the Crown. 48 . So, applying the third step in the W.D. test, on the whole of the evidence that I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. DECISION: 49 . Accordingly, I find the accused guilty of the charge of sexual assault. M. P. Thompson ACJ