R v. GI, 2011 YJCN 01

?????? ?????????? ???? YOUTH JUSTICE COURT OF NUNAVUT Tribunal de la jeunesse de Nunavut Citation: R v. GI, 2011 YJCN 01 Date: 20111021 Docket: 08-09-358-1 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: GI ________________________________________________________________________ Before: The Honourable Mr. Justice Kilpatrick Counsel (Crown): L. Lane Counsel (Accused): J. Langevin Location Heard: Iqaluit, Nunavut Date Heard: September 12-15, 2011 Matters: Canadian Criminal Code, ss. 272(1) (

b) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) Restrictions on Publication:

By court order made under

section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” Section 110 (1) of the Youth Criminal Justice Act provides that “no personal shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this act.” Section 111(1) of the Youth Criminal Justice Act provides that “no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.” I.

INTRODUCTION [ 1 ] Twenty-nine year old EC was brutally beaten on May 22, 2009. There were two adults and one youth implicated in this attack. All were originally charged with aggravated sexual assault. Joshua Angmarlik and Mosha Noah pled guilty in late 2009 to a reduced charge of aggravated assault. Both have been sentenced. GI is charged as a youth. She maintains that she took no

part in the attack. A not guilty plea has been entered to a single count of sexual assault causing bodily harm. II. TRIAL EVIDENCE A. The evening of May 21, 2009 [ 2 ] On the evening of May 21, sixteen year old females GI and JL wanted to drink. Both teens were looking for a party. GI was hung over from drinking the night before. The young teens go to unit 309C in the early evening of May 21, 2009, looking for a party. EC and Mosha Noah had been carving during the day at this location. Joshua Angmarlik was also there.

He had been housesitting. [ 3 ] EC and JL have approximately 5 grams of Cannabis Marijuana between them. This is sufficient for 10 joints that are shared by everyone at the party. There is also a significant quantity of alcohol. [ 4 ] There is some dispute in the evidence about who supplied the alcohol for the first round of drinking. JL suggests Mosha Noah secured a 60 oz. bottle of bootleg Vodka from a cab driver. GI and EC suggest that JL brought a 40 oz. bottle of bootleg vodka with her to the party.

According to both EC and GI, this first bottle was later supplemented by an additional 40 oz. bottle of bootleg vodka purchased by EC from a source outside the Navigator Inn. Angmarlik believes that Noah or EC supplied the alcohol, but is really unable on cross-examination to say where it came from. Nothing of legal significance turns on these conflicts in the evidence. [ 5 ] There is some difference in the memories of the witnesses about their movements over the course of the evening of May 21. JL does not recall anyone leaving 309C during the evening.

EC and GI insist that they leave 309C after the first bottle is consumed. Noah and EC both leave to sell their carvings at local hotels. GI accompanies EC. The money gained through carving will be later used to purchase additional alcohol over the next 12 hours. Before returning to the party EC and GI have sexual intercourse together. [ 6 ] This much is clear on the evidence. After selling the carvings, Noah, GI and EC all eventually migrate back to 309C where the drinking continues. Others arrive at the party over the course of the evening and visit for varying lengths of time.

By two or three in the morning of May 22, all of the alcohol and cannabis has been consumed by the five participants at the party. All are drunk. [ 7 ] Once again, nothing of substance turns on any conflicts in the witness’s testimony about the events of this evening. These conflicts can be explained by the conditions under which these witness’s memories were imprinted. As the witnesses became progressively more intoxicated, their memories deteriorate. This is reflected in their testimony.

[ 8 ] After running out of alcohol, all five participants of the party go to sleep at various locations within unit 309C. If there is some disagreement about who slept where and on what, this is again of no legal significance except to underscore the extent of their intoxication. B. The morning of May 22, 2009 [ 9 ] Noah, GI and JL are awake by 6 a.m. They are hungry. They are also hung over. A decision is made to go to “the Snack”, a local restaurant, for an early breakfast. EC is shaken awake, but he declines to go.

Angmarlik and EC remain behind at 309C. [ 10 ] After a quick breakfast, money is pooled from those at the party. Arrangements are made to purchase another bottle of bootleg alcohol. This being done, Noah soon enters 309C with a 60 oz bottle of Vodka purchased for $150.00. [ 11 ] Some vodka is poured into three pop bottles. The balance is poured into cups. The party continues. All five occupants of 309C are soon intoxicated to varying degrees. [ 12 ] There is some dispute in the evidence about who became the most intoxicated of the group. GI claims that JL was very drunk.

This sixteen year old is vomiting soon after her return from the Snack. Angmarlik claims that he was only a little buzzed and that EC had the most to drink. GI claims that she drank sufficient alcohol that morning to cause her to blackout. [ 13 ] It is impossible for the Court on this evidence to determine who was the most severely impaired of this group. Given the quantity of alcohol consumed in the previous 12 hours, the Court can only conclude that all present became intoxicated. C. The attack [ 14 ] It is not clear on the evidence how the violence started. There are conflicting accounts.

Nor is it clear what prompted the violence. [ 15 ] JL says that EC suddenly punches Noah in the face. Noah then strikes EC back. Angmarlik intervenes to assist Noah by knocking EC to the floor. Angmarlik and Noah are good friends. Angmarlik confirms this friendship in his testimony. [ 16 ] GI claims that she did not see EC strike anybody. GI says that Angmarlik delivers the first blow to EC, and that this knocks EC to the ground senseless. Noah then joins in the attack on EC.

GI confirms EC’s claim that after Angmarlik puts EC to the floor he says to Noah “I thought you were going to do it”. [ 17 ] EC claims that the attack was unprovoked. EC says that Angmarlik jumps him from behind and chokes him to the point of losing consciousness. EC says that when he comes to, he is on the floor being beaten. He then hears Angmarlik say to Noah “I thought you were going to do it”. It was at this point that Noah joins the fray. When he is stomped on the face by Noah, EC says that he again loses consciousness momentarily.

When he recovers his senses he is still being beaten by both Angmarlik and Noah. [ 18 ] Regardless of who may have started the violence, it is clear on the evidence of all witnesses, both Crown and Defence, that the “fight” was entirely one sided and vicious. Once on the ground, EC was repeatedly pummeled in the face with fists. He was stomped on the face by Noah with sufficient force to leave a pattern impression on his face that resembled a boot tread. He was repeatedly kicked in the head. He was kicked in the abdomen and the shoulder.

He was rolled over on his stomach and pummeled with fists and boots in the back and the legs. He was beaten with a broomstick. There is no suggestion on the evidence that EC was able to effectively defend himself during this attack. [ 19 ] It is unnecessary to determine who started the fight. Even if EC threw the first punch, the force subsequently used by Angmarlik and Noah was not necessary in self-defence. Given the serious injuries inflicted upon EC, the force applied was excessive and far

exceeded the privilege of self-defence. [ 20 ] It is clear from the scale of this attack, from the degree and type of force applied and the extent of the victim’s many injuries, that this attack was intended to gratuitously inflict pain for pain’s sake. This beating was intended to brutalize an already helpless victim. D. The medical and photographic evidence [ 21 ] The injuries sustained by EC during this attack were carefully documented by the medical authorities. Many of these injuries have also been photographed and measured. [ 22 ] These injuries include: ?

Soft tissue injuries around both the right and left eyes; ? Bruising to both cheeks, including a distinctive pattern type injury resembling a shoe tread on the left cheek; ? Bruising to the chin; ? Bruising to the forehead; ? Bruising to the nose and mouth; ? A laceration over the left eye; ? Heavy bruising to both the right and left ears extending down to the upper neck; ? Bruising to both left and right shoulders; ? Bruising on the anterior and exterior aspect of the left and right forearms; ? Bruising on the inner aspect of the left knee; ? Bruising on the anterior portion of the neck (right side); ?

Two large bruises to the leg above the left knee; ? A large area of heavy bruising on the back extending from just below the left shoulder to just above the waist; ? A large bruise on the back below the right shoulder; ? A deep linear abrasion on the inner aspect of the right thigh; ? A puncture wound on the inner aspect of the right thigh; ? Two linear abrasions with scabbing at 7:00 o’clock and 9:00 o’clock on the rectum; ?

A large hemorrhoid/hematoma at approximately 4 o’clock on the rectum that extends to the inner aspect of the anus; [ 23 ] There was significant swelling associated with many of these soft tissue injuries. A police investigator who knew EC from previous dealings testified that he had difficulty recognizing the victim when he first saw EC at the hospital in Iqaluit. E. GI’s involvement in the attack on EC (

i) JL’s Evidence [ 24 ] JL says that once EC is on the ground and defenceless, Angmarlik and Noah say something to GI that makes GI angry at EC. JL says that GI then joins in the beating by kicking EC repeatedly in the head and body. JL says that she does not recall what was said to GI to prompt her participation in the beating.

[ 25 ] At one point, according to JL, a red metal broomstick is grabbed and used it as a club to beat EC on the head. Sufficient force is used to cause the broomstick to first bend, and then break in half. [ 26 ] While there is no doubt on all the evidence that a broomstick was used as a weapon during the attack, there is some conflict about who is clubbing EC with the broomstick when it breaks. [ 27 ] JL initially suggests that it was GI who breaks the stick on EC’s head.

When cross examined on her evidence at the preliminary inquiry, JL retreats from this position and says that the broom is being wielded by Noah when it breaks. JL says that after the broomstick is broken, GI picks up the part of the broken broomstick containing a black plastic handle. She then uses the broomstick as a club striking EC in the face and body. [ 28 ] While the two males continue their beating of EC, JL says that GI tears EC’s pants up one leg. She sees GL then open EC’s boxer shorts and forcibly insert the broken broom handle into EC’s anus.

She says that the black handle of the broken broomstick disappears inside the anus of the victim. [ 29 ] JL says that she attempts to flee the residence, but is prevented from doing so by threats that she too would be beaten if she left and called the police. [ 30 ] The beating eventually stops. JL insists that everyone except the victim flees the residence at the same time. EC is left bleeding and motionless on the floor. JL says that GI leaves 309C with the broken broomstick.

GI deposits this broomstick in a garbage container some distance away from the crime scene. [ 31 ] JL is sufficiently concerned about EC’s condition to return to the crime scene after the others leave. JL speaks to EC who asks her to call an ambulance. This is done.

JL is found by the police inside 309C when the police arrive to investigate the distress call. (ii) EC’s evidence [ 32 ] EC confirms in his evidence that he was struck in the head by GI wielding a broomstick. [ 33 ] EC says that at one point while the beating was in progress, one of his assailants rips the leg of his jeans from the ankle to the buttocks. EC insists that an assailant then pulls open his boxer shorts and forcibly inserts the broken broomstick into his anus. EC says that it was GI who tore his pants.

It was GI who was wielding the broken broomstick when this was inserted into his anus causing the injuries noted by the medical authorities. [ 34 ] EC confirms that JL returns to 309C after the others had left, and that she does so to help him. [ 35 ] EC is seen by the police investigator at the Iqaluit hospital. Pictures are taken of the injuries to EC’s face. No statement is taken however. EC had been sedated by the medical authorities for his pain. He is in no condition to speak to the police. [ 36 ] When EC is discharged from the hospital in Ottawa, he returns to Iqaluit.

He gives a statement to the police on June 1, 2009. A short nine days have passed since the beating. [ 37 ] EC is cross-examined on this statement at trial. In this statement to the police EC says initially that he remembers nothing after being choked and falling unconscious. [ 38 ] When challenged about what he now claims to remember, EC is quick to acknowledge that the claim of having no memory first advanced to the police is not an honest answer. EC explains this lack of honesty by saying that he was very uncomfortable speaking

about his trauma to the male police investigator. EC says that he was too embarrassed by what had happened to him to open up. He kept things to himself. The injuries were still fresh. It was only later in the statement, at page 6, that EC relates what had caused the injury to his rectum. He does open up, but gives only minimal information. [ 39 ] EC says at trial that when the broomstick was first inserted in his anus he grabbed at the broomstick in an effort to prevent it from moving any further. This is when he says that he observed GI holding the stick. Defence Counsel challenged the accuracy of this evidence.

EC had apparently not mentioned this when cross-examined at the preliminary inquiry held on the 22 of November, 2010. [ 40 ] Defence Counsel also challenged a reference made by EC in the statement to police that “‘they’” had shoved the broomstick up his ass.” EC readily conceded that Angmarlik or Noah were not involved with this use of this broomstick. On EC’s own evidence, GI was the only assailant using the broomstick in this way. EC explains that he used the word “they” because there were three people beating him up at the time.

He viewed the use of the stick by GI as being part of this same assault. [ 41 ] EC is quick to acknowledge his criminal record. He concedes that he often becomes aggressive when drinking. Many of his convictions are the result of intoxication. He steadfastly maintains that he did not provoke the attack, nor did he strike first. (iii) Angmarlik’s evidence [ 42 ] Angmarlik is a reluctant and hostile Crown witness. He is sarcastic and openly contemptuous of the court process. He minimizes the extent of his own drinking and yet claims to have no memory of significant events due to the passage of time.

He resents being called as a witness because he has already “done his time”. He resents having to repeat what had apparently been said in an earlier statement to the police. Angmarlik minimizes the extent of the injuries inflicted upon EC and the extent of his own involvement. [ 43 ] Despite this anger and hostility, Angmarlik does confirm GI’s involvement in the beating of EC. Angmarlik claims that when he leaves 309C Noah and GI are still beating EC on the floor. He is deliberately vague when responding to Crown questions. He initially volunteers no information about the use of the broom during the assault.

He is shown his statement to the police in an effort to revive his memory. He claims that reading this statement does not help him remember what happened. He then blurts out in his examination in chief that when GI hit EC with the stick, it didn’t penetrate his anus. [ 44 ] When Crown counsel follows this response up with more questions, Angmarlik blurts out “the broom was just around the back area, but it didn’t go in”. [ 45 ] Angmarlik claims to have no idea how many times GI hit EC with the stick. Angmarlik is not sure where GI was beating EC but says it was “probably” the face.

When challenged on his lack of memory Angmarlik becomes angry and defensive. He responds “Well, I told you, I don’t want to testify nothing, you know. I already did my time.” [ 46 ] In cross-examination, Angmarlik becomes putty in Defence Counsel’s hands. With leading questions, Defence Counsel suggests that after punching Noah, EC goes after GI by either pushing her or punching her. Angmarlik replies “He was trying to go after all of us, yeah.” Defence counsel follows this response with the following question: Q: But apart from being a big shot, he also went after GI and either punched her or pushed her….

Angmarlik responds “I’m not sure”. [ 47 ] And later this question from Defence Counsel and answer from Angmarlik: Q: And then did G. pick up a piece of that stick? A: I don’t know, she probably hit him in the face with it. Q: This was after EC was hitting G(I).?

A: After [ 48 ] This was not an appropriate question. The witness had never said that EC had hit GI. (iv) GI’s evidence [ 49 ] GI says that after EC was put to the floor she was forced to watch the beating by Angmarlik and Noah. She remembers seeing blood and crying because she was upset by the violence being inflicted upon EC. [ 50 ] The version of the facts being put to the witness Angmarlik by Defence Counsel, the supposed attack by EC on GI, is not supported by GI herself. GI says that EC was never aggressive towards her.

She says that she was never pushed or punched at any time before, during, or after the attack on EC in the morning by the victim. [ 51 ] GI claims that she never saw anyone with a broomstick. She is adamant that she never touched EC and was not a participant in the beating. She claims that after the beating starts, she attempts to flee the residence but is prevented from doing so by Angmarlik who physically restrains her and threatens to hurt her if she does leave.

GI claims that she then drinks heavily so she does not have to watch the continuing violence against EC playing out in front of her. [ 52 ] GI claims to go into a blackout. She says that she has no memory of leaving the residence. She has no memory of saying anything to the police from a taxi. Her next memory is being in the back of the police truck en route to the detachment. III. ANALYSIS A. The Burden of Proof and the issue of credibility [ 53 ] GI is presumed by the law to be innocent of this criminal allegation. She does not have to establish her innocence.

The burden of proof remains on the Crown throughout this trial. This burden never shifts to the Defendant. The standard of proof required to establish guilt is a high one. It is only proof beyond a reasonable doubt that can displace the presumption of innocence. Suspicion alone is not enough. [ 54 ] GI has relinquished her right of silence. She has testified in her own defence at the trial on this allegation. If I believe the Defendant’s evidence, I must find her not guilty.

If I do not believe her testimony, but find that this evidence raises a reasonable doubt in my mind about any essential element required to be proved by the Crown, GI must be given the benefit of this doubt.

Under these circumstances, the presumption of innocence has not been displaced and the Defendant must be acquitted. [ 55 ] Even if I reject the Defendant’s evidence, even if I find that it does not raise a reasonable doubt, GI can only be convicted if, on all the evidence, her guilt has been proven to the requisite criminal standard by the Crown. [ 56 ] A criminal trial is not a credibility contest between Crown and Defence witnesses. The Defendant is entitled to the benefit of any reasonable doubt on an issue of credibility arising from the testimony of witnesses heard in the course of this trial.

It is not simply a matter of choosing one witness’s version of events over another. Such an approach would suggest that the Defendant has some burden to persuade the trier of fact that his version of the truth is more accurate and reliable. If the Court does not know whom or what to believe, the law demands that the Defendant be found not guilty. Once again, it is the Crown who must establish guilt. The Defendant does not have to prove her innocence. B. Analysis – Credibility and Reliability

[ 57 ] The medical and photographic evidence tendered at the trial confirms that the victim EC sustained a significant number of blows to his head, face and body during the attack of May 22, 2009. [ 58 ] There are conflicts in the evidence about who started the violence, what prompted the attack, and the respective roles of the parties as the attack unfolded. [ 59 ] Despite these conflicts, there can be no doubt that there was an attack and that multiple persons participated together in the beating that was inflicted upon EC.

Angmarlik and Noah have already admitted their joint involvement in the beating. [ 60 ] JL, Angmarlik, and EC all say in their evidence that GI joins Angmarlik and Noah in the beating of EC. All three Crown witnesses relate that GI was wielding part of a broomstick as a weapon during part of the beating. C. The likelihood of collusion [ 61 ] With the exception of the victim EC, both JL and Angmarlik are openly hostile to the Crown. JL is a friend of the Defendant’s. In these circumstances, it is highly unlikely that these three witnesses would conspire to falsely implicate GI in the beating of EC. D.

The possibility of mistaken identification [ 62 ] There is no possibility on the evidence that the Crown’s witnesses might have confused GI’s identity as the third assailant with someone else. The lighting was good. The assault was prolonged. The incident itself was shocking. There was not just one witness who implicates the Defendant in the attack. There are three. [ 63 ] The only other female present when the attack occurred was JL. All of the evidence, including that provided by the Defendant herself, confirms that JL was not a participant in the beating. [ 64 ] JL’s concern for the victim cannot be doubted.

Her concern and upset was noted by the police upon their arrival. JL, alone among the participants at the party, returned to the crime scene to secure help for the victim. E. The consistency of the medical evidence with the description of the alleged assault [ 65 ] Two of three Crown witnesses implicate GI with using the broomstick during the attack to penetrate the victim’s anus.

The type and location of the injuries sustained in EC’s perianal area are consistent with the type of assault described by both JL and EC. [ 66 ] Given the shocking nature of the attack and the pain associated with this, it is highly unlikely that this type of attack would be confused with something else by EC, despite his intoxication. [ 67 ] Pieces of the broken broom stick were found at the crime scene in the location where the beating took place. The crime scene was photographed by the police. [ 68 ] The Court has no doubt on all the evidence that the type of attack described by EC and JL did in fact occur.

F. JL’s Evidence

[ 69 ] JL is found to be intoxicated by the police upon their arrival at the crime scene. She is unsteady on her feet and does have slurred speech. Despite this intoxication, there is no suggestion on the police evidence that JL was so intoxicated as to be incapable of giving a rational and coherent account of what had transpired inside unit 309C. [ 70 ] JL confirms that following GI’s departure from the crime scene, GI deposited the piece of broomstick used by her in the attack in a garbage container some distance away from unit 309C.

Police evidence confirms that JL leads a police investigator without any hesitation or confusion directly to a garbage container some distance away from unit 309C. Inside the garbage container the police find a broken red broomstick with a black plastic handle. There is some red staining visible on this piece of broomstick. This item is seized and photographed by the police. [ 71 ] JL was a close personal friend of GI. JL presented as an angry and reluctant witness for the Crown. She was reluctant to testify against or “rat out” her friend, and gave her evidence showing this anger.

The fact that she implicated GI in the assault on EC under these circumstances is telling. G. Angmarlik’s Evidence [ 72 ] The Court rejects the evidence of Angmarlik that he left the unit while the beating of EC by Noah and GI was in progress. This was part of a brazen attempt by Angmarlik to minimize his involvement in the beating of EC.

This was his way of trying to insulate himself from being examined or cross-examined on what GI was doing with the broomstick while he and Noah were busy beating EC. [ 73 ] Angmarlik admits in his testimony that GI had a broomstick, and that she was using it to jab EC in the face and body. He was aware that she was jabbing at EC’s buttocks, but claims to never see it penetrate the victim. This evidence is not credible. Nor is his professed claim of significant memory gaps based on the passage of time alone. He does not claim to be drunk when the prolonged assault takes place.

Yet he claims to have very little memory of the events constituting the violence. [ 74 ] The Court finds that it was not until the beating ended that Angmarlik, Noah, GI, and JL flee the residence. They all flee around the same time. The Court rejects any suggestion that Angmarlik may have abandoned the group-beating before the alleged sexual assault was committed. [ 75 ] The Court infers from Angmarlik’s attitude and demeanor in the Courtroom that this witness had an agenda to hide the truth. Angmarlik made it very clear that he did not want to cooperate with the Crown.

The few details that he did give about GI’s involvement had to be dragged out of him by Crown Counsel. [ 76 ] The Court rejects Angmarlik’s suggestion that EC was aggressive with GI before she became involved with the assault. This was put to Angmarlik in cross-examination by Defence Counsel through leading questions. The Defendant herself does not suggest that she was pushed or punched at any time before, or after the assault on EC started. [ 77 ] There is absolutely no basis in fact or law to suggest that GI might have been defending herself when she got involved in the violence. H.

GI’s Evidence [ 78 ] GI’s claim that she attempted to flee the crime scene and secure help is not substantiated by any other witness. The last memory GI claims to have before experiencing a black out purports to be a detailed account of her being first physically restrained and then threatened by Angmarlik. None of these factual allegations were put to the Crown witness Angmarlik in cross-examination by Defence Counsel.

The attempt at flight described by GI is remarkably similar to JL’s account of her own attempt to flee the scene. [ 79 ] The Defendant is adamant that she did not participate in either the beating of EC or in the forcible insertion of the stick into the victim’s anus. Yet in the same breath she claims to go into a black out shortly after the assault by Angmarlik and Noah starts. She has no memory of leaving unit 309C. She has no memory of getting into a taxi. She has no memory of saying anything to the police at the crime scene as she drives past in the taxi.

She has no memory of the taxi being stopped by the police and being placed in the back of the police

vehicle. On the police evidence, there can be no doubt that GI did all of these things. GI was not passed out and unconscious when these various events occurred. [ 80 ] GI was able to negotiate a long flight of stairs to leave unit 309C. There is no evidence to suggest that she was carried unconscious down these stairs before the police arrived. There is no suggestion that she was placed unconscious into the taxi or that she was passed out when she made the statement attributed to her by the police when in the taxi. [ 81 ] GI is a practiced drinker.

She knows that the absence of a memory the morning after binge drinking does not necessarily mean that she was incapable of speech and movement the night before when drinking. [ 82 ] GI cannot claim to know what she did after losing her memory. Her adamant denial of involvement in this offence flies in the face of three other witnesses whose evidence implicates her in the attack. She cannot claim that she is in a blackout and positively state under oath at the same time that she did not do what is being attributed to her.

Either she has a memory, or she does not. [ 83 ] The Defendant’s detailed evidence with respect to her intended flight and the threats made against her by one or both of the other males is highly suspect, coming as it does just before she loses all memory about what happens next. The Court rejects this evidence and finds that is contrived. I. The alleged tearing of the victim’s jeans [ 84 ] Defence Counsel argues that the tearing of EC’s jeans could not have been done by the 16 year old Defendant. He argues that too much force would have been required to perform this feat. [ 85 ] The jeans are not in evidence.

The make is unknown. These were old jeans. The jeans were ripped and torn in places. The cuff of the pant leg that was allegedly ripped by the Defendant was already frayed and ripped. When the victim was lying on his stomach on the floor, the Defendant is alleged to have grabbed the torn pant leg and pulled it causing the tear to move up the leg to a point that the boxer shorts were exposed. [ 86 ] It cannot be said on the evidence that this tearing of the jeans would have been impossible to achieve.

The Court is not prepared to reject the detailed evidence of EC and JL on the strength of this speculative argument. As indicated earlier, the Court is satisfied that the insertion of the broken broom stick into the victim’s anus did in fact occur. This is the only explanation on the evidence to cause the perianal injuries described earlier. There is nothing in evidence to suggest that this was done through the clothing of the victim. J.

Why did GI get involved? [ 87 ] Defence Counsel has emphasized that there is no hard evidence of any reason or motive to explain why GI would beat and abuse a man she had been physically intimate with hours earlier. Defence Counsel advances this absence of evidence as one reason to accept GI’s denial of involvement in the attack. [ 88 ] GI claims that she has been raped on three occasions by older men. She has found a boyfriend hanging by the neck. If these claims are true, there is undoubtedly much pain, and great anger, welling within GI. Sexual victimization can generate acute pain and emotional distress.

This can last a lifetime. Sexual violence can damage or destroy a victim’s sense of self-respect. GI has testified that she uses alcohol as a form of pain killer to dull the feelings caused by her painful childhood memories. [ 89 ] In this case, as in many others, we may look in vain for a rational explanation for violence.

The emptiness, the anger, the social isolation that a victim acquires from their own victimization is often reflected in how the victim later relates to and behaves towards others. [ 90 ] There may not be any explanation for GI’s violence beyond GI’s own anger, an anger that flows from her own history of

victimization and self-destructive substance abuse. [91] The sad reality is that there is often no rational reason for the violence offered to others. Many of Nunavut’s serious violent crimesare committed by those who are drunk. Many wake up after a night of drinking to discover that they have committed horrific crimesagainst those they claim to love. [92] This is the face of violence in Nunavut. It is as irrational, as it is devastating, to those who are exposed to it. K.

Was the alleged insertion of broken broom stick into the victim’s rectum a Sexual Assault? [93] Defence Counsel argues that the act of forcibly inserting the broken broomstick into the anus of the victim in the circumstancespresented here does not constitute a sexual assault. The Defence concedes that the force applied in this case may constitute an assaultcausing bodily harm.

Defence counsel says that the absence of any evidence suggesting that the act was done for the purpose of sexualgratification suggests that the act should not be characterized as a sexual assault. [94] This is a very creative argument, but one that flies in the face of both precedent and common sense. [95] A sexual assault involves the intentional or deliberate application of force to a complainant without that person’s consent. The actcomplained of must violate the sexual integrity of the complainant.

The test with respect to whether the act complained of violates thesexual integrity of the victim is an objective one. [96] The Crown must also prove that in applying the force, the accused had the requisite criminal state of mind. The Crown must provetwo things to establish this requirement. First, it must prove that the accused actually intended to apply the force complained of; that is,he/she intended to touch the complainant.

Second, it must prove that when the accused touched the complainant he/she actually knewthat the complainant was not agreeing to be touched in this way, or alternatively, that he/she was reckless or willfully blind to thecomplainant’s lack of consent. [97] Defence Counsel’s argument seems to conflate the subjective test required for the mens rea (the criminal state of mind) with theobjective test required for the criminal act (or the actus reus). [98] There is no doubt on the evidence that the act in question was deliberate or intentional.

There is no doubt on the evidence that theact complained of was non-consensual. The act complained of in this case was done for the purpose of inflicting pain, for the purpose ofdegrading, humiliating and brutalizing the victim.

The insertion of the broken broomstick into the victim’s anus was part of a largerassault. [99] There is no evidence to suggest that the act was done for the purpose of sexual self-gratification of the Defendant. [100] The absence of any sexual motivation behind the doing of the act does not objectively alter the nature of the act itself however.Where present, evidence of sexual gratification may be highly relevant and probative of the sexual nature of the act, but this does not endthe inquiry.

In this case, as in the case of R v Chase, (SCC), [1987] 2 SCR 293; 37 CCC (3d) 97[Chase], the Court mustnot only look to the nature of the touching itself, and the reasons for it, but also the part of the body touched, the words and gesturesaccompanying the act and all other circumstances surrounding the conduct complained of in order to properly assess whether the act is aviolation of a person’s sexual integrity. [101] A sexual assault does not require proof of sexuality or sexual gratification of any kind.

See R v V(KB), (ONCA), [1992] OJ No 561; (1992), 71 CCC (3d) 65; affirmed: (SCC), [1993] 2 SCR 857 SCC, 22 CR (4th) 86. [102] The forced non-consensual tearing and movement of clothing to expose the buttocks and the anus is in itself an assault. There is anabundance of jurisprudence to suggest that the touching involved in the non-consensual removal of a complainant’s clothing to expose

genitals or other sexual parts of the body may also be characterized as a sexual assault when viewed objectively. [ 103 ] In the circumstances of this case, the forced insertion of a foreign object into the victim’s anus, when viewed objectively, can only be characterized as a profound violation of the physical and sexual integrity of this victim. The Court rejects the suggestion that such an act, done under these circumstances, can or should be characterized as anything other than a serious sexual assault. IV.

CONCLUSION [ 104 ] The Court is satisfied beyond a reasonable doubt on all the evidence that GI was in fact a full participant in the attack on EC. The Court rejects GI’s denial of any involvement in the beating. The Court rejects GI’s denial that she never used the broken broomstick to assault EC in the way described by JL, EC and Angmarlik. [ 105 ] Given her professed lack of memory, GI’s claim of non-involvement in the assault rings hollow.

The Court concludes that the Defendant’s evidence does not raise any reasonable doubt with respect to GI’s involvement in the attack. [ 106 ] The Court is satisfied that the evidence available to it is of sufficient quality and cogency to prove the offence alleged against the Defendant beyond a reasonable doubt. [ 107 ] The Court finds the Defendant guilty as charged. Dated at the City of Iqaluit this 21st day of October, 2011 ___________________ Justice R. Kilpatrick Youth Justice Court of Nunavut Postscript - The common law doctrine of co-principals 1.

Even if the evidence fell short of establishing GI’s actual role as principal in the commission of the sexual assault with the broomstick, which is not the case, the application of the common law doctrine of co-principals would still require a finding of guilt to be made against the Defendant on the facts found by the Court in this case. 2. This was a group assault. This attack was an activity jointly undertaken by all three accused. The sexual assault was done while the beating was underway. It would have taken some time and effort to tear the pant leg from ankle to waist.

It would have taken some effort to shift the victim’s boxers and forcefully insert the stick into the anus. This was not an enterprise that could be missed or misconstrued by the others involved in the beating. The sexual assault was one act in a series of actions calculated to maximize the infliction of physical pain, humiliation and degradation. It formed part of a brutal beating upon a helpless victim that was intended to both punish and humiliate. 3. At common law, one or more persons may be co-principals even though each has not performed every act making up the actus reus.

If they are all engaged in a joint enterprise, in this case, the horrific beating and degradation of a defenseless victim, then part of the crime may be committed by one principal and part by another, but each are guilty of the full offence. The act of one co-principal becomes the act of all. 4. There is no need to turn to the law of parties or accessories to determine guilt in circumstances where this doctrine applies. Beyond proof of common participation, the common law doctrine of co-principals does not require proof of any prior agreement to carry out a common purpose. 6.

Nor is it necessary to make findings regarding an individual’s role in the commission of the “joint venture” where there is proof of a common enterprise. The Crown is not required to prove the degree of involvement of each individual as long as it is established that each of the persons actually participated in the commission of the offence or aided and abetted any person in committing the crime. It is often impossible to identify the specific involvement of each individual participant in circumstances where events happen quickly in a group setting. 7.

The sexual assault in this case was committed as an integral part of a prolonged beating. It was contemporaneous in time with the larger attack of which it formed a part. All who participated in this attack did so as full participants. Under these circumstances, the participants in this group attack cannot expect to escape liability by suggesting that the Crown has not proven specifically who was wielding the broomstick when it penetrated the victim. 8. The Crown has chosen to take guilty pleas to aggravated assault, and not sexual assault, in relation to Angmarlik and Noah.

Regardless of who was wielding the broomstick, the doctrine of co-principals discussed above exposed all three Defendants to liability on the charge of sexual assault causing bodily harm that is now before the Court.