R. v. Takawgak, 2015 NUCJ 07

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Takawgak, 2015 NUCJ 07 Date: 20150206 Docket: 11-13-29 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Silas Takawgak ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Crown): Amy Porteous; Sarah Bailey Counsel (Accused): David Berg Location Heard: Iqaluit, Nunavut Date Heard: January 30, 2015 Matters: Criminal Code, s. 146(1) ; s. 151 ; s. 243.3; s. 245(1) ; s. 246(1) ; s. 271 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Anonymized Judgment Disclaimer: This judgment has been has been anonymized to at the discretion of the authoring Justice to protect vulnerable parties. Letters have been assigned at random. Amended Decision: An amended decision was issued on February 9, 2015; the corrections have been made to the text and the amendment is appended to this judgment. Table of Contents REASONS FOR JUDGMENT 1 I. INTRODUCTION 4 II. OVERVIEW OF ISSUES 4 A. Delay 4 B. Collaboration/tainting of evidence 5 C. Animus/motive to fabricate 6 III. ANALYSIS 6 A. Evidence of RK (counts 1, 2 and 3) 6 B. LK (count 4) 8 C.

FA (count 5) 9 D. LQ (count 6) 11 E. TA (counts 7 and 8) 13 F. BA (counts 9 and 10) 13 IV. CONCLUSION 16 I. INTRODUCTION [ 1 ] Mr. Takawgak is charged with a number of sexual offences and one simple assault involving six different complainants. All of the allegations are dated, some dating back to 1984 and the most recent being in 1994. [ 2 ] All of the complainants are from a small Nunavut community and, as expected, know each other. Some are related.

The main issue to be determined by the Court is whether concerns relating to the possibility of collusion and fabrication amongst the complainants or, alternatively, the innocent and accidental tainting of evidence, are such that it would be dangerous to convict. II. OVERVIEW OF ISSUES

A. Delay [3] This Court in R v DeJaeger, 2014 NUCJ 21, [2014] NuJ No 22 (QL), spoke at length of the difficulties in prosecuting, defending,and adjudicating historical offences That memories become less precise with time and that perceptions are influenced by interveningevents and the passage of time is natural and understandable. However, as natural and understandable as it might be, it makes the factfinding process even more difficult. [4] Some of the complainants in this matter were youthful, although perhaps not children, at the time of the allegations.

Nevertheless,direction regarding the correct approach to assessing childhood memories is of some assistance. The standard for assessing childhoodmemories recounted by an adult witness is set out by McLachlin J (as she was) is R v W(R), (SCC), [1992] 2 SCR 122,74 CCC (3d) 134: Every person giving testimony in Court, of whatever age, is an individual, whose credibility and evidence must be assessed by referenceto criteria appropriate to her mental development, understanding and ability to communicate. But I would add this.

In general, where anadult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable toher as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies,particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the timeof the events to which she is testifying. B.

Collaboration/tainting of evidence [5] In addition to the passage of time, in this matter there are suggestions that the various complainants either intentionally fabricatedtheir allegations or, alternatively, had their memories and perceptions of historical events tainted through discussions with othercomplainants. [6] As difficult as it may be for the trier of fact to deal with fabricated allegations, it is even more difficult to assess whether there hasbeen accidental tainting of memories and perceptions.

This is because the complainant whose memories and perceptions have beenaccidentally tainted are truthful, honest, but mistaken witnesses. In other words, they are credible witnesses, but they may not be reliablewitnesses. C. Animus/motive to fabricate [7] Closely connected to the issue of fabrication is the issue of animus, or whether the complainant has a motive to fabricate allegationsagainst an accused. Of course, absence of evidence of motive to fabricate does not mean there is no motive to fabricate, it is simply alack of evidence on the point.

There is no onus on an accused to prove motive to fabricate and the lack of any evidence on this issue issimply neutral. However, in those instances where there is animus between the parties that is separate and apart from the allegationsbefore the Court, caution must be taken and the Court must be satisfied that the allegations have not been fabricated or exaggerated. Ofcourse, a motive to fabricate may exist independently of any animus between the parties. III. ANALYSIS A.

Evidence of RK (counts 1, 2 and 3) [8] The accused is charged with sexual assault, having sexual intercourse with a female under 14 and not his wife, and uttering threatsagainst the complainant RK. All of the charges arise from the same set of facts and are alleged to have occurred between January 1, 1987and December 31, 1988. [9] RK testified that in the summer when she was 11 or 12 years old, she was walking in the community with two friends. She testifiedthat the accused called out to her from a window and told her to come into the house. She had not met the accused.

[ 10 ] She testified that she went into the house. The accused walked her through the living room, where his mother and two sisters were, and into his bedroom. In the bedroom the accused tried to take her pants down and she resisted by holding them up. The accused was able to get her pants down. He put her on the bed and had sexual intercourse with her. He told her not to tell anyone or he would hurt her or kill her. When the complainant left she again had to walk through the living room.

She does not recall if the mother or sisters were still in the living room when she left. [ 11 ] In early 2013, she discussed the incident with her older sister, MJ, and also with LK and LQ. About a month later she also spoke with FA. All of the women complained of being sexually assaulted by the accused. [ 12 ] The complainant reported this incident to the police in February of 2013.

At that time, she gave the police the names of other women who might have been sexually assaulted by the accused, including the four women she had spoken with earlier in the year. [ 13 ] The complainant denied having spoken with RT, the former wife of the accused. Although when the police spoke with RT, she gave the complainant's name as a possible victim. [ 14 ] There was an inconsistency between the evidence of the complainant at the preliminary hearing and at trial, in that, at the trial she initially testified that the first person she had spoken with was FA.

However, on cross-examination when her evidence from the preliminary hearing was put to her, she adopted it and agreed that the first person she had told was MJ. [ 15 ] Defence counsel submits that the scenario testified to by the complainant is simply implausible and should not be believed.

Defence counsel submits that it does not make sense that a young girl would enter the home at the request of a man she does not know and that once matters started getting out of control she would not call out for help to those who were in the living room. [ 16 ] In assessing the plausibility of the complainant’s evidence it is important to keep in mind her young age at the time.

While there is no one way that any complainant of a sexual assault will react, either at the time of the incident or following the incident, it is reasonable to expect that that younger and less sophisticated the complainant, the less likely she would be to speak out. [ 17 ] RK did speak with some of the other complainants about this incident. However, she was the person who instigated the discussion in talking about her past.

While she may have encouraged some of the other complainants to come forward with their allegations, there is nothing to suggest her evidence was influenced by her discussions with them nor is there evidence of animus that is separate and apart from the alleged incident. [ 18 ] The complainant presented her evidence in a straight forward, credible manner. The inconsistency between her evidence at the preliminary hearing and at trial as to who she first disclosed to is, in my view, a minor inconsistency that does not impact on the reliability of her evidence. [ 19 ] I find the accused guilty of counts 1, 2 and 3.

B. LK (count 4) [ 20 ] The accused is charged with one count of sexual assault on LK alleged to have occurred between January 1, 1993 and December 31, 1994. [ 21 ] On the evening in question the complainant was walking home from a gathering. She had been drinking. It was cold. The accused was driving by on a skidoo and offered her a ride. She accepted and got on the back of the skidoo, behind the accused. While he was driving, the accused took his left hand off the handle bars and reached back, touching the complainant on her thigh.

The complainant testified that he rubbed her thigh and asked her if she wanted to “do it” one last time. She refused him and pushed his hand away. The accused dropped her off at her house and went on his way.

[ 22 ] It came out in the evidence that the complainant and the accused had a daughter together, who is deceased. It appears they had a relationship of some duration and that the relationship was complicated. The complainant had a relationship with the accused while married to someone else. Her husband was aware of the relationship as the complainant got an STD from the accused which she passed on to her husband. This evidence came out only at the preliminary hearing, while the complainant was on the witness stand.

There is evidence that the complainant's former husband (since deceased) was jealous of LK's relationship with the accused and would be violent towards her because of his jealousy. [ 23 ] LK is the sister-in-law of RK, having been married to RK's brother. LK agreed that she spoke with RK and that RK told her to speak with the police. LK denied having made up the allegations in collusion with any of the other complainants. [ 24 ] This incident is alleged to have occurred over 20 years ago. The animus between the accused and the complainant is obvious from the evidence.

Further, the complainant was urged to go to the police by her former husband’s sister. There is a risk that the incident was overstated and perceived differently as a result. [ 25 ] The motive to fabricate in this case is real. I find the accused not guilty of count 4, a sexual assault on LK. C. FA (count 5) [ 26 ] The accused is charged with one count of sexual assault on FA, alleged to have occurred between September 1, 1988 and May 1, 1989. [ 27 ] FA testified that she was 16 at the time.

She was walking home from the community hall with a friend when the accused started to walk with them and ask her friend to come with him. When the friend refused he turned his attention to FA. She was encouraged by both her friend and the accused to go with him so she did. She knew who the accused was from seeing him around the community. [ 28 ] FA and the accused went to the house the accused shared with his mother and siblings. They went to his bedroom, passing through the living room on the way.

The mother of the accused was in the living room with some other people. [ 29 ] Once in the bedroom, some other people joined them and they smoked some hash. The complainant became quite stoned. When the other people had left the bedroom the complainant laid down on the bed. The accused used one hand to hold the complainant's arms above her head and used his other hand to remove her pants. He had sexual intercourse with her. The complainant testified that she told the accused several times that she did not want to “do it”. She remained in the house for some period of time before leaving.

She cannot recall if the mother of the accused or anyone else was in the living room when she left. [ 30 ] The complainant and the accused went on to have a “boyfriend-girlfriend” relationship for almost a year after this incident. [ 31 ] At the preliminary hearing the complainant testified “...it's just now I realize that it was a sexual assault that had impact on me”. [ 32 ] At the preliminary hearing the complainant testified that the sexual assault did not happen the first time she was in the bedroom of the accused, but that it happened a few days later, after they had started going out together.

She seemed to adopt this evidence at trial during re-examination. [ 33 ] In cross-examination, the complainant agreed that on the night in question she went to the home of the accused by herself, she walked into the house and went directly to the accused's bedroom. There were people in the living room. She agreed that they smoked hash with a couple of other people and that she remained in the bedroom for some time after sex. She agreed that she knew other people were in the house and she did not call out for help. [ 34 ] The complainant testified that RK had been talking to her about the accused.

The complainant testified that RK was talking to her “about her past” and then the complainant talked about her past. RK went to the police and then the police came to talk to the

complainant. The complainant testified that RK did not tell her what to say to the police nor did she tell RK what to say. [ 35 ] There was some difficult questioning and evidence regarding when FA first realized that she had been sexually assaulted. Evidence given at the preliminary hearing suggested that she had not thought of what happened between them as a sexual assault until around the time she was speaking with RK or until the time of the preliminary hearing.

At trial, she testified that she had realized long before the charges were being laid that she had been raped. [ 36 ] FA is unable to provide any reasonable explanation as to why she continued in an intimate relationship with the accused after the incident, beyond her being “confused” at the time. There was no evidence that the accused was abusive or pressured her into being in a relationship or that she was afraid of him. She is not able to explain why their relationship ended. [ 37 ] I have difficulties with FA's evidence.

In my view, there is a serious risk that FA's perception of the incident has been tainted, either intentionally or unintentionally, because of her discussions with RK and others. There is a real risk that she has taken something consensual and something that she perceived as consensual for many years and has turned it into something criminal. [ 38 ] In my view, it would be dangerous to convict on this evidence and I find the accused not guilty of count 5, the sexual assault on FA. D.

LQ (count 6) [ 39 ] The accused is charged with a common assault on LQ alleged to have occurred between January 1, 1984 and April 12, 1985. [ 40 ] The complainant was approximately 12 years old at the time. The accused was friends with her older brother and he would often visit at her home. The complainant testified that her parents were sleeping after they had been drinking and she was up late watching TV. The accused came into the porch of the residence.

He asked about her brother, who was not home, and then he said to her “lets go, lets go out”. [ 41 ] The complainant was young and confused and didn't know what to do. She said that she was scared. She said that at that time of her life she got scared very easily. She picked up an ulu and held it up in a threatening manner and the accused left the residence. [ 42 ] The complainant continued watching TV. Less than a minute later, the accused came back and stood in the porch. The complainant was concerned and wanted to get herself away from the accused.

It is not clear from her evidence if she intended to go out the back door or to her parents’ bedroom. Regardless, she found herself having to walk past the porch. As she did so, the accused grabbed her forearm or wrist and then the sleeve of her shirt. [ 43 ] LQ testified that she told her mother about the incident the following day.

Her mother does not recall being told about the incident at the time it is alleged to have occurred and only remembers hearing of it when LQ went to the police, almost 20 years later. [ 44 ] When the complainant testified at the preliminary hearing, she was asked if she and the accused had any physical contact that evening. She responded “no, there was none”.

It was only when she read the statement she had given to the police that she testified at the preliminary hearing to the accused having grabbed her wrist and sleeve. [ 45 ] In early 2013, the complainant discussed the accused with four other women who also made allegations against the accused. The police came to speak with her when RK provided them with her name. [ 46 ] The complainant confirmed that there was a history of ill will between her family and the family of the accused. She confirmed that just one month before she spoke with the police the accused had gone to jail for threatening her mother.

[ 47 ] The incident, if it occurred, was so minor that the complainant did not even talk about it at the preliminary hearing until her memory was refreshed with a statement given to the police 20 years later. [ 48 ] This was not a statement made while the incident was fresh in the mind of the complainant. The statement was given after both discussing the accused with RK and after the accused had threatened the complainant's mother. The initial disclosure the complainant made to her mother at the time is not corroborated by her mother.

There is a long history of animosity between the accused and the family of LQ. [ 49 ] In my view it would be dangerous to enter a conviction on this evidence. I find the accused not guilty of count 6, an assault on LQ. E. TA (counts 7 and 8) [ 50 ] The accused is charged with sexual touching and sexual assault on TA between January 1, 1993 and December 31, 1996. Both charges arise from the same set of facts. [ 51 ] TA testified that she was sleeping over at BA's house, who is her relative and at the time was her best friend.

TA was between 7-10 years of age and BA was slightly older. [ 52 ] At the time, the accused was in a relationship with the mother of BA and lived in the house. [ 53 ] TA and BA were sleeping in BA's room, sharing a bed. TA was closest to the door. She was sleeping on her stomach with her arms crossed under her head. Her head was turned away from the door. She felt she was being touched on her buttocks, under her underwear, directly on the skin. She turned her head and saw the accused standing next to her, beside the bed. He was wearing a long white housecoat. No one said anything and the accused left the room.

TA got out of bed and went downstairs. BA's mother was in the kitchen, doing dishes. Although it was 3:00 am, TA chose to go home rather than go back to BA's room. [ 54 ] The Defence has argued that TA had completely forgotten about the incident and that this was, in essence, a recovered memory. In my view, this is not a correct characterization of the evidence. I understood the witness as expressing a desire to want to forget about the incident and not wanting to think about it.

I did not understand her evidence as being that she was ever without a memory of it happening and that she only recovered that memory sometime later. [ 55 ] TA presented as a credible witness. While it is true that her aunt and the accused had a history of difficulties, I do not find that this influenced her evidence. I accept the evidence of TA and find the accused guilty of counts 7 & 8. F.

BA (counts 9 and 10) [ 56 ] The accused is charged with touching for a sexual purpose and sexual assault on BA between January 1, 1994 and December 31, 1998. [ 57 ] The accused was in a common-law relationship with BA's mother at the relevant time. BA testified that on three occasions the accused came into her room when she was sleeping and touched her under her clothing. Each time she was being touched she woke up, at which point the accused left the bedroom. [ 58 ] BA testified that after each incident she told her mother what had happened.

Her mother said that if it ever occurred again she would leave the accused, however, she did not leave him so BA left the house and went to live with her grandfather. She was about 13 at the time.

[ 59 ] BA's mother and RT, the former wife of the accused are related. BA's mother and RT talked about the accused, following which RT spoke with BA and told her that if the accused did anything to her she should report it to the police. Following this conversation the police came to speak with BA. [ 60 ] BA said that she told the police that the accused had apologized to her. She said that she mentioned this to the police after the tape recorder had been turned off. The police officer does not have a note of this nor does he recall BA mentioning this and that it was his practice to make a note of such a comment.

At trial, BA testified that the apology had been to her mother and not directly to her. [ 61 ] BA's mother testified and confirmed that, when they were living with the accused, BA came to her on two occasions and told her that the accused had been touching her during the night. The mother is able to recall the circumstances of the first disclosure and describes that she was folding laundry at the time. [ 62 ] Defence counsel points to inconsistencies in the preliminary hearing and trial evidence regarding the age of the complainant at the time of the incidents.

He argues that BA described having moved out to her grandfather's after the third incident while the mother said that BA did not move out of the house until the mother relocated to the south. [ 63 ] In my view, the uncertainty regarding the age of the complainant at the time is to be expected given the passage of time. There is evidence, which relates in time, between the first incident and the death of BA's maternal grandmother. The mother testified that she recalls the first disclosure being around the same time.

This is a more reliable way to date the incident than estimates made decades later. [ 64 ] The mother testified that BA was living on and off at the house of her grandfather. It seems from the evidence that BA moved somewhat freely between the house of her mother and the houses of some of her extended family, as is often the case in Nunavut, particularly in a small community. [ 65 ] Clearly, the accused and BA's mother had a difficult relationship. BA's mother admitted to still feeling angry when she saw the accused. However, the difficulties between BA's mother and the accused were long past.

There were no recent, ongoing issues between them that could lead to a concern of BA fabricating allegations to assist her mother. [ 66 ] BA candidly testified that the former wife of the accused, RT, had wanted her to report the offences to the police so that the accused would stay in jail longer. While this may have been the motivating factor for RT, this does not mean it was the motivating factor for BA.

It may well be that BA would not have gone to the police if she had not been encouraged to do so by RT, but this does not necessarily detract from the credibility of the witness. [ 67 ] I accept the evidence of the mother as to the disclosure by BA following the incidents. This rebuts the suggestion of recent fabrication. [ 68 ] I accept the evidence of BA as to the nature of the touching on three separate occasions. I find the accused guilty of counts 9 &10. IV.

CONCLUSION [ 69 ] The findings of the Court are summarized as follows: Counts 1, 2, & 3: guilty Count 4: not guilty Count 5: not guilty Count 6: not guilty

Counts 7 & 8: guilty Counts 9 & 10: guilty Dated at the City of Iqaluit this 6th day of February, 2015 ___________________ Justice S. Cooper Nunavut Court of Justice _______________________________________________________ Amendment of the Reasons for Judgment Reserved of The Honourable Madam Justice Cooper _______________________________________________________ In the table of contents and on page 6, the heading C has been changed from “C. Amicus/motive to fabricate” to “C.

Animus/motive to fabricate.” In paragraph [07], the pinpoint “Closely connected to the issue of fabrication is the issue of amicus…” has been changed to “Closely connected to the issue of fabrication is the issue of animus…” Please replace the amended pages in your hard copy of the judgment.