R. v. Kownirk, 2022 NUCJ 11

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Kownirk, 2022 NUCJ 11 Date: 20220317 Docket: 08-20-195 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Newkinga Kownirk __________________________________________________________________ Before: Mr. Justice Mulligan Counsel (Crown): E. Baasch Counsel (Accused): M. Manocchio Location Heard: Iqaluit, Nunavut Date Heard: November 19, 2021 Matters: Trial, conviction on charges contrary to

section 272, S.733.1(1) and s.145(5) of the Criminal Code , RSC 1985, c C-46 REASONS FOR VERDICT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Restriction 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section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” Anonymized Judgment Disclaimer : This judgment has been anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties. Letters have been assigned at random. I. INTRODUCTION [ 1 ] The accused Newkinga Kownirk was tried on November 19, 2021. At the conclusion of this one-day trial I reserved judgment to a date to be set through the trial coordinator.

The following is my verdict. [ 2 ] Mr. Kownirk was charged on three counts. Count one is a charge of sexual assault on the complainant AK on or about May 1, 2020, in the City of Iqaluit contrary to

section 272 of the Criminal Code , R.S., c. C-34, s.1 (the “Code”). Count two is a charge of failing to comply with a probation order contrary to S.733.1(1) on the same day. Count three is a charge of failing to comply with a release order contrary to s.145(5) on the same day. Copies of these orders were filed as Exhibits by the Crown at trial. [ 3 ] In this case the issues for the court concern whether the complainant had capacity to consent to the sexual activity that occurred between the accused and the complainant, and whether the accused had an honest but mistaken belief in her consent.

The Crown called the complainant to testify. The accused elected to testify on his own behalf. There were no other witnesses in this trial. II. THE EVIDENCE FOR THE CROWN [ 4 ] AK gave evidence for the Crown. At the time in question AK was visiting Iqaluit from her home community elsewhere in Nunavut. She was 30 years old. She was staying at her aunt’s place. [ 5 ] The accused Mr. Kownirk also testified. At the time he was 40 years old and was residing at his mother’s place at building 2245 Iqaluit. [ 6 ] Some of the evidence of both AK and Mr. Kownirk is not disputed.

When the complainant went to the apartment where the accused was residing sexual activity took place. They met for the first time that morning outside the Northmart store. His evidence was that she was outside the building, and he was in the passenger seat of a vehicle. He motioned to her by moving his arm to simulate drinking and invited her to come to 2245.

[7] She accepted the invitation and travelled by taxi to 2245. The accused’s mother was at home when she arrived. Although AKthought she was his aunt. [8] She testified that she wanted to go drinking and enjoy her time in Iqaluit. She had not had anything to drink earlier that day. Onarrival she started drinking beers from cans with the accused and his mother. She didn’t know how much she drank but it was more thanusual. She thought it was too much because she stated that she blacked out at some point.

She recalled going outside for a smoke withthe accused and his mother but could not recall going back inside. [9] She testified that she was drinking the beer cans quickly. She stated that she often drank vodka in her home community. [10] She testified that the sexual activity took place in the bathroom. Her pants were down, and she became aware that he came upbehind her. There had been no prior talk about sexual activity. About what took place next she testified “I didn’t think he would do thatto me”. Her testimony was that, and I quote: “in the washroom he was fucking me”.

Vaginal and anal intercourse took place. [11] She was clearly upset when testifying about what occurred in the bathroom. She stated she told him to get off and he did so. Theyspoke to each other in Inuktitut. She said he was smiling during the intercourse. [12] Her next memory was being at her aunt’s place. She had no memory of how she got there. Later she made a statement to theRCMP and went to the hospital on May 4. A rape kit was conducted but no useful DNA evidence was found. When asked about anysigns after the intercourse she stated that she peed blood. III. THE TESTIMONY OF MR. KOWNIRK [13] Mr.

Kownirk testified about their first meeting outside the Northmart. They had never met before. She came to his mother’s houseby taxi and began drinking beers. He thought she had about 4-5 beers, but he was not counting. He testified that he didn’t think she wasall that drunk. He said he was buzzed having consumed 4-5 beers. His mother left the house around noon for about 20 minutes. Hethought that they had been drinking from about 11am till noon. [14] He testified that he followed AK into the washroom while his mother was out.

As to consent he said he asked her if she wanted tomake out and she said it was all right. In cross examination he said his question was “can we do it”? He had followed her into thewashroom, she was washing her hands. He was behind her and began touching her. He testified that she was wearing pants, that sexualactivity began there and that they moved to the bedroom, where vaginal and anal intercourse took place. He stopped when she told himto stop. She then left the place. IV. THE LAW [15] The Crown has the burden of proof beyond a reasonable doubt with respect to each element of the offence.

An accused person isnot required to prove his innocence and the burden of proof never shifts to an accused person. [16] This case is not a credibility contest between a complainant and an accused person. When I consider the evidence of the accused, Iwill apply the test in R. v W(D) (SCC), [1991] 1 SCR 742. If I believe the accused, I must find him not guilty. If I do notbelieve him then I must consider whether I am left with a reasonable doubt about what happened. If I am unable to decide whom tobelieve, then I must find him not guilty. [17] The meaning of consent is defined in s. 273.1 of the Code. That

section indicates that consent means a voluntary agreement by thecomplainant to engage in the sexual activity in question.

[ 18 ]

Section 273.2 sets out conditions that, if present, disallow belief in consent as a defence. [ 19 ] That

section provides as follows: 273.2 It is not a defence to a charge under

section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where: (

a) the accused’s belief arose from (

i) the accused’s self-induced intoxication, (ii) the accused’s recklessness or wilful blindness, or (iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is obtained; (

b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or (

c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct. [ 20 ] In R. v D.C. 2018 NUCJ 20 Johnson J. reviewed many of the applicable principles when consent is considered in situations where the complainant testified that she “blacked out”. In the case before him his Honour stated at para 34: In this case, the complainant testified that she had blacked out and could not remember a large part of the evening.

This does not necessarily mean that she was incapable of consenting. [ 21 ] As he continued at para 35: [35] On the other hand, Ducharme J. noted that the absence of evidence of consent due to the impact of alcohol on a complainant’s memory is not necessarily fatal to the prosecution, especially where the Crown presented other significant evidence. The blackout is not necessarily irrelevant or lacking in probative value.

It, along with other evidence in a case, may permit inferences to be drawn about whether a complainant did or did not consent, or whether she was or was not capable of consenting at the relevant time. [ 22 ] On the facts before him he noted that the two individuals showed an attraction to each other and engaged in some of the preliminaries to sexual activity. He found that the complainant was functional and had an operating mind. In the result the accused was acquitted. [ 23 ] In a recent Ontario Court of Appeal decision, R. v.

Kaczmarek 2021 ONCA 771 , Trotter J.A., speaking for the panel, reviewed these consent principles. On the facts of that case the complainant was heavily intoxicated and was led to an apartment by two men. The trial judge found that she lacked capacity to consent and entered convictions. In upholding the convictions Trotter J.A., at para 36, quoted the trial judge’s reasons as follows: Her initial involvement in this sexual activity came about because of her gross intoxication, her “blackout”.

To wake up or become conscious and then to find oneself engaged in a sexual activity with strangers, as did the complainant, S.D. when there is no independent memory of the how, when or why of this sexual activity, is certainly by every objective reasoning, an indication of the incapacity of a

complainant. [ 24 ] Trotter J.A., at para. 38, also reviewed the principles set out in the Supreme Court of Canada decision in R. v G.F. 2021 SCC 20 . [ 25 ] At para 57-58 of G.F.

Karakatsanis J. stated: [57] In sum, for a complainant to be capable of providing subjective consent to sexual activity, they must be capable of understanding four things: 1. the physical act; 2. that the act is sexual in nature; 3. the specific identity of the complainant’s partner or partners; and 4. that they have the choice to refuse to participate in the sexual activity. [58] The complainant will only be capable of providing subjective consent if they are capable of understanding all four factors.

If the Crown proves the absence of any single factor beyond a reasonable doubt, then the complainant is incapable of subjective consent and the absence of consent is established at the actus reus stage. There would be no need to consider whether any consent was effective in law because there would be no subjective consent to vitiate. V. REASONABLE STEPS [ 26 ] As I understand the defence position the accused had an honest but mistaken belief in communicated consent. So, I must consider s. 273.2. [ 27 ] The Supreme Court of Canada considered that

section in R v Barton 2019 SCC 33 . As Moldaver J. stated at para 104:

Section 273.2(

b) imposes a precondition to the defence of honest but mistaken belief in communicated consent – no reasonable steps no defence.

It has both objective and subjective dimensions: the accused must take steps that are objectively reasonable, and the reasonableness of those steps must be assessed in light of the circumstances known to the accused at the time. [ 28 ] At paras 108 and 109 Moldaver J. spoke to circumstances where the reasonable steps requirements would need to be elevated: [108] It is also possible to identify circumstances in which the threshold for satisfying the reasonable steps requirement will be elevated.

For example, the more invasive the sexual activity in question and/or the greater the risk posed to the health and safety of those involved, common sense suggests a reasonable person would take greater care in ascertaining consent. The same holds true where the accused and the complainant are unfamiliar with one another, thereby raising the risk of miscommunications, misunderstandings, and mistakes.

At the end of the day, the reasonable steps inquiry is highly contextual, and what is required will vary from case to case. [109] Overall, in approaching the reasonable steps analysis, trial judges and juries should take a purposive approach, keeping in mind that the reasonable steps requirement reaffirms that the accused cannot equate silence, passivity, or ambiguity with the communication of consent. Moreover, trial judges and juries should be guided by the need to protect and preserve every person’s bodily integrity, sexual autonomy, and human dignity.

Finally, if the reasonable steps requirement is to have any meaningful impact, it must be applied with care — mere lip service will not do. [ 29 ] In R. v Sanclemente 2021 ONCA 906 the Ontario Court of Appeal applied those Barton principles in circumstances were the complainant attended the accused apartment to buy drugs. It was not disputed that sexual activity took place. The complainant denied

that she had consented. The finding of guilt by the trial judge was upheld. Watt J. A. referred to the elevated steps requirement and noted at paras 99 and 100: [99] In addition, the appellant’s claim of honest but mistaken belief in communicated consent is flawed because it appears grounded, in some respects at least, on impermissible mistakes of law, not permissible mistakes of fact. An assumption of implied consent based on the appellant’s evidence that M.C. never said “no”, thus impliedly consented to any and all sexual activity.

A failure to consider that M.C.’s consent had to be contemporaneous and activity-specific, not an agreement to all activity of an undefined scope. [100] This is also a case in which the threshold for satisfying the reasonable steps requirement was elevated. The sexual activity was invasive in nature. There was an enhanced risk to M.C.’s health because of unprotected sexual intercourse. The parties were not all that familiar with each other, never having been alone on any previous occasion.

The risk of miscommunication, misunderstanding and mistake was palpable. [ 30 ] The position of the defence can be simply stated. The defence submits that under the W.D. analysis Mr. Kownirk should be given the benefit of the doubt. His evidence was that he asked her about making out and she said it was alright. Sexual activity took place beginning in the washroom and then in the bedroom. He stopped when she asked him to stop. The complainant was not a reliable witness about her testimony and about blacking out. [ 31 ] The Crown’s position is that his asking about sex was insufficient in all the circumstances.

No words were asked about vaginal or anal intercourse. He was aware of her intoxication. Therefore, the Crown submits it has met its burden of proof in this case. VI. ANALYSIS [ 32 ] The key issues in this case are whether the complainant consented to the vaginal and anal intercourse that took place and whether the accused took reasonable steps to obtain consent. [ 33 ] Some facts are not in dispute and provide context for the discussion that follows. (

a) The complainant and the accused had never met before (

b) The complainant wanted to go drinking and accepted the invitation. (

c) Mr. Kownirk’s mother was present while they drank beer. (

d) He thought he had drunk 4-5 beers in about one hour. (

e) He thought he was buzzed. (

f) He testified that she may have had 4-5 beers but was not counting. (

g) He thought she was not that drunk. (

h) His mother left the house after an hour or so. (

i) There was no prior talk about sexual activity. (

j) The complainant was in the washroom when sexual activity began. (

k) He approached her from behind. (

l) Vaginal and anal intercourse took place. (

m) He stopped when she asked him to. [ 34 ] But their evidence about what happened in the washroom diverged. She testified that she blacked out and when she regained her senses sexual activity was taking place. There was no prior talk about sexual activity and she testified that she didn’t think he would do that to her.

[ 35 ] He said he approached her from behind while she was in the bathroom and asked if she wanted to make out. She said it was all right. That was the extent of his inquiry. He had vaginal and anal sexual intercourse and stopped when she asked him to stop. He said he was buzzed, and she was not that drunk. VII. CONCLUSION A. Count One (

i) An Honest but Mistaken Belief in Consent [ 36 ] In these circumstances the reasonable steps requirement was elevated. Both parties had been drinking heavily. I am further guided by the three principles outlined in Barton at para 108 : First, they were unfamiliar with each other. Second, the sexual activity was invasive in nature.

Third, there was an enhanced risk to AK’s health and safety. [ 37 ] Finally, the complainant’s response, as testified to by the accused and taken at its highest, was not activity specific and not an agreement to sexual activity of an unspecified scope. [ 38 ] Therefore, I am not satisfied that Mr. Kownirk took reasonable steps. I find that there is no air of reality to the defence of honest but mistaken belief in consent. B. Consent or Lack of Consent [ 39 ] A charge of sexual assault contains four essential elements of the offence that the Crown must prove:

a) that there had been intentional touching,

b) of a sexual nature,

c) without the complainant's consent, and

d) that the accused knew of, or was willfully blind or reckless as to the absence of the complainant's consent. In this case, the first two elements are not in dispute and the Crown has met its burden. [ 40 ] I now turn to AK’s consent or lack of consent, the third element. I accept her evidence that she had gaps in her memory from alcohol consumption and only regained awareness when sexual activity began in the bathroom, a place where AK was in a private space. There had been no prior talk about sexual activity.

She went to the house to enjoy some drinking and his mother was home with them, at least until the bathroom incident. I accept her evidence that she had limited memory from alcohol consumption and said no when she became aware of his sexual activity. [ 41 ] Therefore, I am not satisfied that she consented to the vaginal and anal intercourse that took place. [ 42 ] I now turn to the fourth element. There are cases where the rejection of an honest but mistaken defence may not rise to the level of satisfying the burden of the Crown on the knowledge element. In a recent decision R. v.

H.W ., 2022 ONCA 15 the Court provided guidance at para 81: ...the knowledge element is part of the mens rea and thus the Crown's burden, independently of whether the defence of honest but mistaken belief in communicated consent is available to the accused. [ 43 ] Having reviewed all of the evidence including the testimony of the accused I have no difficulty finding that the complainant was

not consenting and that the accused was willfully blind in the circumstances. I find that the Crown has satisfied its burden with respect to this element of the offence. [ 44 ] I therefore find Mr. Kownirk guilty of Count One Sexual Assault. C. Counts Two and Three [ 45 ] My ruling on Count Two and Three is subject to the Crown’s request at the close of trial to either withdraw one of these two counts or to stay one of these counts if there was a finding of guilt on Count One. [ 46 ] Count Two alleges that Mr. Kownirk failed to comply with a probation order. The Crown filed a copy of the Order at trial. Mr.

Kownirk having been found guilty of sexual assault, I am satisfied that the Crown has proven the essential elements of this offence. I find Mr. Kownirk guilty of Count Two. D. Count Three [ 47 ] At the request of the Crown Count Three is stayed. [ 48 ] The sentencing hearing for this matter is adjourned to April 29, 2022 at 9:30 a.m. in Iqaluit. Dated at the City of Iqaluit this 18th day of March 2022 ___________________ Justice G.M. Mulligan Nunavut Court of Justice