R. v. De Jaeger, 2014 NUCJ 04

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. De Jaeger, 2014 NUCJ 04 (No. 1) Date: 20140121 Docket: 07-13-85; 07-13-95; 08-02-27 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Eric Jose De Jaeger ________________________________________________________________________ Before: The Honourable Mr. Justice Kilpatrick Counsel (Crown): Doug Curliss Q.C.

Scott Hughes Counsel (Accused): Malcolm Kempt Location Heard: Iqaluit, Nunavut Date Heard: January 20-21, 2014 Matters: Non-suit application, no evidence motion, directed verdict REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) Restriction on Publication: By court order made under

section 486.4 of the Criminal Code , any information that could identify the complainants shall not be published in any document or broadcast or transmitted in any way.

I. INTRODUCTION [ 1 ] At the conclusion of the evidence presented by the prosecution in a criminal trial, the defence has an opportunity to bring a no evidence motion. This motion asks the court to dismiss a charge or charges on the basis that the crown has presented no evidence to substantiate all or part of what has to be proved by the prosecution in order to secure a conviction. [ 2 ] There is a presumption of innocence in Canada that results in any prosecuting authority having a legal obligation to establish that there is evidence to justify a prosecution.

No citizen can be called upon to answer a criminal allegation unless the Crown is able to demonstrate that there is at least some evidence to substantiate a criminal charge. [ 3 ] The Defence in this trial brings a no evidence motion in relation to counts 6, 14, 15, 25, 27, 40, and 53 of a 76 count indictment. [ 4 ] The ultimate issue, guilt or innocence, is to be decided at the conclusion of all the evidence heard in a criminal trial. The Crown has now presented its case against the Defendant.

The Defence alleges that in relation to these seven counts there is no evidence on an essential part of the charge alleged that must be proved in order for the Crown to secure a finding of guilt. [ 5 ] If there is some evidence upon every essential element required to be proved in relation to these seven counts, evidence upon which a properly instructed trier of fact might reasonably convict, then I must deny the Defence application for non-suit. This is what the Court must now decide. [ 6 ] My function on these seven motions is a limited one. I am not here to decide guilt or innocence.

I am not here to assess the credibility of witnesses. I am not called upon at this stage of the trial to assess the ultimate reliability of the evidence in question. Nor am I here to decide if the Crown has met the burden of proof beyond a reasonable doubt. The standard of evidence required to pass the threshold of a no evidence motion is a very low one. Is there any evidence upon which a properly instructed trier of fact could reasonably convict?

This is the test, and the only test, to be applied at this stage of the proceedings. [ 7 ] I turn now to examine the individual counts and assess the evidence tendered by the Crown in support of its prosecution. II. ANALYSIS A. Count 6 [ 8 ] Count 6 alleges that on or between the dates set out in the indictment, the Defendant did have unlawful sexual intercourse with the complainant J.A. contrary to

section 144 of the Criminal Code, RSC 1970 c C-34 [ Criminal Code ]. [ 9 ] The Defence alleges that there is no evidence from which a properly instructed trier of fact could reasonably find that

an act of sexual intercourse occurred as alleged. [ 10 ] In her testimony J.A. describes an incident occurring at night in a bedroom upstairs in the Roman Catholic Mission in Igloolik. The complainant was then between the ages of 8 and 12. [ 11 ] J.A. relates how her hands and feet were secured with tape to a bedframe by the Defendant. J.A. alleges that she was placed face down on a bed. J.A. alleges that the Defendant then had sex with her in her rectum. [ 12 ] The Crown’s evidence does not establish that

an act of vaginal intercourse took place. This is what the Crown has alleged in its

indictment. This is what the Crown must prove. The complainant’s actual evidence relates to

an act of forced anal rape which under the old provisions of the Criminal Code was charged as a different offense. This was the crime of buggery. [ 13 ] Given the absence of any evidence related to

an act of sexual intercourse, as opposed to buggery, the Defence urges the Court to dismiss count 6. [ 14 ] There is another option open to this Court, however. [ 15 ] For many hundreds of years, the English common law demanded great accuracy in all pleadings setting out the essential averments of fact necessary to be proven in a criminal prosecution. Errors and omissions were not tolerated. Charges were routinely dismissed where the prosecution failed to achieve the necessary standards of exactness. The common law was as ruthless, as it was unyielding, in its demand for completeness.

It was so for a reason. [ 16 ] For many hundreds of years England led the other nations of Europe in its number of capital crimes. The common law’s insistence upon technical accuracy was a direct response to the severe consequences associated with a finding of guilt. The prosecution was weighted heavily against a citizen accused of crime. For hundreds of years an accused was denied any ability to retain counsel. For many, many, years, an accused was legally unable to testify in his or her defence. The common law’s insistence upon technical accuracy in pleadings was there to balance the scales of justice.

Any failure by the prosecution to strictly prove what was alleged in its pleadings could open the door to a conviction on a lesser charge or even an outright acquittal. In this way, the gallows could be avoided and justice achieved. [ 17 ] As the severity of England’s criminal penalties slowly moderated in 19th century Victorian England, the common law’s insistence upon accuracy in pleadings softened. There was a greater willingness to amend inaccurate or incomplete pleadings where this could be done without impairing trial fairness. [ 18 ]

Section 601 of our contemporary Criminal Code, RSC 1985, c C-46 [Criminal Code] seeks to balance the right of an accused to a fair trial with a larger public interest to ensure that trials proceed on their merits. Procedural laws under Canada’s Criminal Code are now the servants, and not the masters, of the criminal trial. A fair criminal trial is the ultimate objective of our criminal procedure.

The trial is regulated by rules that seek to balance procedural fairness to an accused with a larger truth seeking function. [ 19 ] Section 601 (2) of the Criminal Code thus gives the Court a discretionary power to amend an indictment or a count within it to conform to the evidence heard at trial. [ 20 ] Subsection (4) of

section 601 provides that in considering whether to amend a count to conform with trial evidence the Court has a duty to consider: a. the matters disclosed by the evidence taken on the preliminary inquiry; b. the evidence taken on the trial...; c. the circumstances of the case; d. whether the accused has been misled or prejudiced in his defence by any variance, error or omission...; and e. whether, having regard to the merits of the case, the proposed amendment can be made without prejudice to the accused. [ 21 ] The Court has considered all of these criteria in deciding whether to amend the indictment in this case to reflect the nature of the charge disclosed by the evidence at trial. [ 22 ] There was no preliminary hearing held in this case.

The accused was in custody and wanted to move matters forward quickly without the additional delay caused by having a preliminary inquiry. [ 23 ] The Defence does not point to any specific prejudice caused by an amendment of the indictment to the accused’s ability to have a

fair trial. The Defence has received full disclosure of the Crown’s case. The Defendant has had a full right of cross examination of the complainant who has made this allegation of buggery. The Court has offered the Defendant’s counsel an adjournment to allow for further preparation time with his client if necessary. Defence does not seek such an adjournment. [ 24 ] Even if this Court dismissed the charge as presently drafted, it may well be that the Crown would then have a new information laid charging the offense disclosed by the evidence.

The Defendant has never faced jeopardy in relation to such a charge in relation to this complainant. The Defendant would not necessarily be any further ahead if the present charge of sexual intercourse is dismissed without any finding on the merits. [ 25 ] The Defendant has an interest in seeing these prosecutions brought to an end so that he can get on with his life. [ 26 ] Having regard to the criteria set out in section 601(4), this Court concludes that it is in the best interests of justice to amend count 6 to reflect a new charge of buggery contrary to

section 155 of the Criminal Code . There is no apparent damage being alleged to the accused’s right to a fair trial. The Court concludes that if there is any prejudice to the accused’s interests, it is capable of being addressed by way of a further adjournment. Such an adjournment is, once again, not being requested by the Defence. B.

Counts 14 and 15 [ 27 ] Count 14 alleges that on or between the dates set out in the indictment, the Defendant used threats of violence against the complainant L.A. to dissuade L.A. from reporting being raped. [ 28 ] Count 15 alleges that the Defendant used threats of violence towards L.A. in order to compel her to masturbate the Defendant. [ 29 ] This complainant was between the ages of 6 and 10 years of age when the alleged incidents occurred. [ 30 ] A review of the transcripts of this witness’s testimony confirms that there is no direct evidence of any kind referencing threats of violence being made by the Defendant for any of the purposes outlined in counts 14 and 15.

The complainant does say that she was told by the Defendant that she had to remove her clothes. This scared her. [ 31 ] The complainant was then asked this question by the Crown: Q: Did he say anything to you that caused you to be scared? A: Yeah he said he was going to do something bad to me. Q: And did he ever do anything bad to you?

A: No, because I let him try to have sex with me . [ 32 ] A properly instructed trier of fact might reasonably draw an inference that this complainant felt compelled to comply with alleged directions given by the Defendant to remove her clothes and touch his penis as a result of a veiled threat of bad consequences in the form of some kind of violence, if she did not.

This is “some evidence” sufficient to overcome the non-suit in relation to Count 15. [ 33 ] The same inference is not available to connect the alleged warning by the accused not to tell others about the rape with the alleged threat of doing something bad to the complainant. This rape would occur later in the alleged sequence of events described by the complainant.

[ 34 ] At page 153 of the Transcript of the complainant’s evidence, the complainant says that the accused “told me not to tell anybody and then he said he (was) gonna to do something”. That something, according to this complainant, was

an act of intercourse. There is simply no evidence relating the alleged threat made by the Defendant to do something bad to the complainant, if she later told others about the incident. [ 35 ] L.A. was a Crown witness. She would have been prepared by the Crown to testify in this proceeding.

No supplementary questions were directed at this witness by the Crown in an effort to clarify the connection between the alleged threat made before the alleged rape was committed and the purpose of dissuading the complainant from later telling others about it. [ 36 ] On the complainant’s own evidence she did try to tell her mother about the incident some days later when the complainant’s mother discovered the child’s bloody panties. [ 37 ] I conclude that there is no evidence given by this complainant relating the alleged threat to the purpose particularized in count 14 of the indictment.

This charge is therefore dismissed. C. Count 25 [ 38 ] Count 25 alleges that, on or between the dates set out in the indictment, the Defendant did commit

an act of buggery upon the complainant L.I. [ 39 ] The Defence seeks to have this count dismissed on the basis that there is no evidence of

an act of anal intercourse upon which a properly instructed trier of fact could reasonably convict. [ 40 ] The complainant L.I. was at all material times between the age of 9 and 12 when this alleged incident occurred. [ 41 ] This complainant was sleeping over at the Roman Catholic Mission in Igloolik with 4 or 5 other boys. The children were sleeping on mattresses on the floor. They were all in the Defendant’s bedroom. The Defendant had a bunk bed.

It is alleged by this complainant that the Defendant approached him at night when the others were sleeping and asked him to take off his clothes and join the Defendant in his bed. This complainant says that he was told to be quiet by the Defendant. L.I. says that he did what he was asked to do. [ 42 ] Once in the bed this complainant alleges that the Defendant started playing with his anus from behind. There was then a sharp pain inside his anus. This complainant became scared and blacked out.

His next memory is waking on the floor of the bedroom in the morning. [ 43 ] This complainant was unable to say whether the sharp pain that he experienced inside his anus was caused by the penetration of a finger or a penis. One possible inference flowing from this evidence is that the complainant’s anus was penetrated by a finger or other physical object other than a penis. It is equally possible to infer on these same facts that

an act of buggery or attempted buggery did occur. [ 44 ] The Court hearing a no evidence motion is not permitted to weigh competing inferences that reasonably flow from the Crown’s evidence. This Court is not entitled at this stage of the proceedings to make any determination that the Crown has, or has not, proven the alleged offence beyond a reasonable doubt. Such a determination must await the conclusion of the trial when all the evidence is in.

[ 45 ] For the limited purposes of this no evidence motion, it is sufficient to find that a properly instructed trier of fact might reasonably find on this evidence that

an act of buggery or attempted buggery did take place and so convict. This Court finds that this is so and consequently it is required to dismiss the Defence’s no evidence motion. [ 46 ] This Court declines to accede to the Crown’s suggestion that the court substitute an allegation of indecent assault for the charge as laid. In making this request Crown counsel appears to be confusing the test for a non-suit with the evidential standards required for a conviction.

It remains open to the Crown at the end of the trial to argue that the Defendant should be convicted of the lesser included offense of indecent assault. D. Count 27 [ 47 ] Count 27 alleges that the Defendant, on or between the dates set out in the indictment, did have sexual intercourse with the complainant T.I. without T.I.’s consent. [ 48 ] The Defence alleges that there is no evidence of sexual intercourse. [ 49 ] The evidence indicates that T.I. was at all material times between the ages of 8 and 9 when this alleged incident occurred.

The witness T.I. described an incident that is said to have occurred during a sleepover at the Roman Catholic Mission in Igloolik. [ 50 ] The witness says she was approached by the Defendant when she was in bed. She pretended to sleep. The Defendant started to rub her stomach and then gradually moved his hand to her vagina. This witness alleges that she was told to lie on her side. The Defendant then got on the bed behind her. The witness says “I think he got on top of me” . There was suddenly intense pain coming from her vagina. This witness says that she blacked out as a result.

This witness says that this pain felt like her vagina was being ripped open slowly”. [ 51 ] Given the tender age of the witness when this alleged event occurred and the physical sensations alleged by this complainant during the activity on the bed, a properly instructed trier of fact might reasonably conclude that there was

an act of sexual intercourse or attempted sexual intercourse taking place. There may be other inferences also available on this evidence. The same pain could have been caused by penetration of the complainant’s vagina by an object other than a penis. The complainant in cross-examination concedes that this was a possibility and that she does not really know what was inserted into her vagina. [ 52 ] My function on a non-suit application is not to weigh the evidence and decide which competing inference, if any, is most likely.

If an inference of sexual intercourse is reasonably available on this evidence, and I find that it is, then I am not at this stage at liberty to simply dismiss the allegation. For these reasons, the Defence no evidence application is dismissed. [ 53 ] Given the state of the Crown’s evidence it may well be that at the conclusion of the trial the Crown will be unable to establish that sexual intercourse did occur as alleged beyond a reasonable doubt. This question cannot be decided at this stage of the proceedings by a Court hearing a no evidence motion. E.

Count 40 [ 54 ] Count 40 alleges that the Defendant committed a common assault upon the complainant E.K. on or between the dates set out in the indictment. [ 55 ] The Defence alleges that there is no evidence related to an application of force to the complainant other than the force attributable to the complainant during the alleged indecent assault.

[ 56 ] The complainant E.K. in her testimony claims that she was coloring on the floor when she was picked up and put on the Defendant’s lap. She squirmed in an effort to get off. She was unable to do so because the Defendant was allegedly holding her hard. The complainant says that there was sufficient force being applied in holding her to the Defendant’s lap to cause “hurting”.

The complainant says that while she was being held by the Defendant, the Defendant penetrated her vagina with a finger. [ 57 ] The Crown argues that the act of picking up the child and holding the child on his lap is some evidence related to a common assault. There was some evidence that the child wanted off the Defendant’s lap and was held in place against her will by the Defendant.

This allegedly happened immediately before the digital penetration occurred, but at a time proximate to it. [ 58 ] The evidence related to this alleged common assault is thus intricately tied up in the allegation of an indecent assault. [ 59 ] There is some evidence related to a common assault. This charge may well be the subject of a different Defence application at the conclusion of the trial, but given the low threshold of evidence required for a no evidence motion, the Court is satisfied that there is sufficient evidence to keep the charge alive at this point in the proceedings.

The no evidence motion in relation to this count is therefore dismissed. F. Count 53 [ 60 ] Count 53 alleges that the Defendant indecently assaulted the complainant G.N. on or between the dates set out in the indictment. [ 61 ] G.N. alleges that the Defendant fondled her breast area over top her clothing while sitting in the accused’s lap. G.N. was at all material time between the ages of 7 and 8 when this incident occurred. [ 62 ] This complainant alleges that while sitting on the Defendant’s lap, the Defendant showed the complainant pictures from a National Geographic magazine.

These pictures depicted women from the African sub-continent with breasts exposed. It is alleged that the Defendant suggested to this complainant that she should dress in a similar fashion with her breasts exposed.

It is alleged that the fondling activity of the complainant’s breast area occurred during this conversation. [ 63 ] Once again, the evidential threshold necessary to survive a no evidence motion is a very low one. [ 64 ] This Court is satisfied that on the complainant’s evidence there is some evidence upon which a properly instructed trier of fact might reasonably find that the defendant applied some force to the breast area of the complainant in the form of fondling of the complainant’s breast area over top of her clothes.

There is some evidence that this touching was not accidental or inadvertent, but deliberate or purposeful. There is some evidence that this touching was committed in circumstances that were objectively indecent. In the circumstances outlined by the complainant, the state of the child’s physical development is irrelevant to any consideration of whether this form of touching was objectively indecent.

[ 65 ] The Defence motion for a non-suit on this count is therefore dismissed. III. CONCLUSION [ 66 ] In the result, the Court has amended Count 6 to accord with the evidence at trial. Count 6 now alleges the crime of buggery contrary to

section 155 of the Criminal Code . The Defence no evidence motion in relation to this count as amended is dismissed. [ 67 ] The Defence motion to dismiss Count 14 alleging threats of violence to dissuade the complainant from reporting a rape is granted. The Defendant is, therefore, found not guilty of this charge. [ 68 ] The Defence motion to dismiss Count 15 alleging threats of violence to compel the named complainant to masturbate the Defendant is dismissed. There is some evidence upon which a properly instructed trier of fact might reasonably find the defendant guilty of this allegation. [ 69 ] The Defense motion to dismiss Count 25 alleging

an act of buggery on the complainant L.I. is dismissed. There is some evidence from which a properly instructed trier of fact might reasonably find that

an act of buggery or attempted buggery did occur as alleged and so convict. [ 70 ] The Defence motion requesting dismissal of Count 27 alleging

an act of unlawful sexual intercourse with the named complainant is dismissed. There is some evidence, albeit fragile evidence, from which a properly instructed trier of fact could reasonably infer that an act of sexual intercourse or attempted sexual intercourse did occur and so convict. [ 71 ] The Defence motion on Count 40 alleging

an act of common assault against the named complainant is dismissed. There is some evidence upon which a properly instructed trier of fact could find that force constituting an assault was applied to the named complainant without her consent and so convict. The alleged force used was applied immediately before the alleged commission of an indecent assault.

At this stage of the proceedings, in the absence of any conviction on the alleged indecent assault, this Court cannot consider or apply the Kienapple principle to the count of common assault. [ 72 ] The Defence motion on Count 53 alleging an indecent assault upon the named complainant is dismissed for the reasons given earlier. [ 73 ] Nothing said or done by the Court at this stage of the proceedings should suggest that any opinion has been formed as to the sufficiency of the evidence led by the Crown in this case to prove the allegations heard in this trial beyond a reasonable doubt.

Findings of credibility and reliability can only be made at the conclusion of the trial. Such findings can only be made after considering all the evidence tendered in this trial by both Crown and Defence. This evidence is not yet complete. The Defence has not yet had any opportunity to present any evidence. [ 74 ] This Court reminds the public that this Defendant continues to be protected by a presumption of innocence. Nothing said or done by this Court in the context of these motions has displaced the full application of this principle.

The presumption of innocence remains as strong now, as it did at the outset, of these proceedings. Dated at the City of Iqaluit this 21th day of January, 2014.

____________________ Justice R. Kilpatrick Nunavut Court of Justice