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Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE


Cour de justice du Nunavut
Citation:

R. v. J.N., 2015 NUCJ 29

Date:
Docket:
Registry:

20150921
08-14-244; 08-15-74
Iqaluit

Crown:

Her Majesty the Queen


-and-

Accused:

J.N.

________________________________________________________________________
Before:

The Honourable Madam Justice Cooper

Counsel (Crown):
Counsel (Accused):

A. Dion/Z. Horricks
J. Park/J. Thompson

Location Heard:
Date Heard:
Matters:

Iqaluit, Nunavut
April 17, 2015; June 18, 2015
Criminal Code, s. 145; s. 151; s. 173(2) x2

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)

DISCLAIMER PAGE
Restriction on Publication:

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not be published in any document or broadcast or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 to indicate locations.

I. INTRODUCTION
[1]

J.N. is charged that he:


Between January 1, 2010, to December 31, 2013, did for a
sexual purpose expose his genital organ to M.N., a person
under the age of 16, contrary to s. 173(2) of the Criminal
Code of Canada, RSC 1985, c C-46 [Criminal Code];
On or about March 21, 2014, did for a sexual purpose
touch M.N., a person under the age of 16, directly with a
part of his body, to wit his hand on her vagina, contrary to
section 151 of the Criminal Code;
On or about February 15, 2015, did for a sexual purpose
expose his genital organs to M.N., a person under the age
of 16, contrary to section 173(2) of the Criminal Code;
On or about February 15, 2015, did breach his undertaking
for communicating with M.N. when he was on conditions
not to have any contact with her.

[2]

At the outset of the trial, the Crown made an application to amend the
count of indecent exposure, alleged to have occurred on February 15,
2015, by deleting the named complainant and adding the names of
other individuals. Counsels reason for doing this was that, although
the complainant was over 16 years of age at the time of the alleged
offence, there were other young people present.

[3]

The application to amend was denied. As a consequence, the Crown


concedes that there cannot be a conviction on that count, and it is
therefore dismissed.

II. EVIDENCE
[4]

The Court heard from one witness, that being the complainant. She
was 16 years old at the time she testified.

[5]

The complainant, M.N., lives with her mother and, for approximately
the last six years, the accused, who is the mothers boyfriend, also
lived with them. There are also younger siblings. Throughout her
testimony, the complainant described a chaotic household where
alcohol abuse is a daily occurrence. She also described moving
frequently between various houses and the shelter.

[6]

The complainant testified to 6 incidents involving the accused. These


are detailed below.

A. Incident #1
[7]

The first incident is alleged to have occurred 3-4 years ago, when the
family was living at House X. The complainant was 12 years old. Her
mother was not home at the time. The complainant was sleeping in
her bedroom, which she did not share with anyone. She testified that
she awoke to the accused calling her name. He was seated on the
arm of an armchair that was located next to her bed. He was
masturbating and told her to watch. The complainant testified that she
turned away from him and pretended to be sleeping. The accused told
her not to tell her mother and left the room.

[8]

According to the complainants testimony, her mother came home and


while the accused was outside of the house for a cigarette, the
complainant told her mother what had happened. The complainant
testified that her mother was angry and locked the accused out of the
house

B. Incident #2
[9]

The complainant testified to a second incident at House X. She


testified that she had a different bed at the time, but was still in the
same bedroom. She testified that she awoke to the same feeling
from when [J.N.] was doing that. She testified that she saw him in the
hallway, about 5-6 feet from her bed, and that he was looking at her
and masturbating. She said to him, what the fuck are you doing, at
which point the accused ran to the living room and the complainant
closed and locked her bedroom door. The next day she told her
mother. Her mother did not, however, believe her.

C. Incidents #3 & 4
[10] The next two incidents the complainant testified about are alleged to
have occurred when the family was living at the apartment.
[11] It is noteworthy that the family lived at the apartment on two different
occasions. The first time they lived there was during a period when
the complainant's mother was pregnant with the complainant's
younger brother. The second time was after her brother had been
born. In talking about these incidents, the complainant was
sometimes confused or unsure as to dates and chronology as she
attempted to relate the incidents to the birth of her younger brother.
[12] The complainant testified about an incident that occurred while her
mother was pregnant. The complainant and her mother were sleeping
in her room. The complainant woke up to the noise of someone
masturbating and saw the accused. He was masturbating. She
testified that when he realized that she had seen him, he first tried to
hide,s but then moved back to the same spot.
[13] She also testified that, on another occasion, she was sleeping in the
living room. Her younger brother was crying and she could not
understand why the accused was not attending to him. She testified
that she felt someone was kneeling on her bed and she heard that
noise, referring to the sound of someone masturbating. She did not
look as she was frightened, and so cannot be sure as to what was
actually happening.
D. Incident #5
[14] The complainant testified to an incident at House Y in March of 2014.
She was drinking with the accused, her mother, a cousin, and
possibly her grandfather. They drank a 60 oz. bottle of vodka. She
testified that she fell asleep next to her mother on the bed in the living
room and awoke to the accused digitally penetrating her while also
masturbating. He was sitting on a footstool right next to the bed. The
complainant's younger siblings were awake and playing in the living
room/kitchen area. The complaint testified that she went downstairs.
Shortly after, her aunt called and asked her to babysit so she left the
house.

[15] The complainant was cross-examined on the statement she gave to


the police regarding this incident. She had told police that the accused
had touched her, but she could not recall if he went inside her. The
complainant did not recall saying that to the police.
E. Incident #6
[16] The next incident to which the complainant testified took place just a
few months before the trial, again at House Y. The complainant
testified that she was in the house with the accused, her mother, her
two younger siblings, and two other relatives. The accused was trying
to be intimate with her mother, but her mother did not want to
because everyone else was still awake. The complainant testified that
the accused was on the bed and that he started to masturbate. The
complainant and some of the other adult relatives kept the children in
the kitchen area so they could not see him and the complainant called
the police.
III. SUBMISSIONS
[17] The issue in this case is to what extent, if any, I can rely upon the
evidence of the complainant.
A. Crown
[18] The Crown submits that the complainant was a credible witness. That
she expressed uncertainty at times simply shows that she was being
truthful and was neither embellishing, nor exaggerating. The Crown
submits that the Court should rely upon her evidence.
B. Defense
[19] The Defence has put forward a number of reasons as to why the
complainant's evidence should not be relied upon.
[20] First, the Defence submits that the complainant is motivated by
animus towards the accused. Defence Counsel submits that the
complainant blames the accused for facilitating her mother's drinking
and made up these allegations in order to put an end to their
relationship.

[21] The Defence also points to the lack of corroboration of the


complainant's evidence and submits that there are internal
inconsistencies in her evidence. The Defense submits that these
reasons are cause for finding her evidence unreliable.
[22] In relation to Incident #5, the Defence argues that, given the
intoxication of the accused as described by the complainant, the
Court should have a reasonable doubt as to whether the accused had
the specific intent necessary for sexual interference or whether his
intent was to touch the complainant's mother. It is further submitted
that the complainants level of intoxication during that incident should
raise concerns about the reliability of her evidence.
IV. ANALYSIS
[23] The complainant presented as a credible witness. She did not appear
to be trying to exaggerate the evidence and she readily testified to
uncertainties. One such example is in relation to Incident #4, where
the complainant testified that, although she thought the accused was
masturbating, she could not be certain. She sometimes struggled to
relate the evidence to specific events in an attempt to provide an
accurate chronology. This is to be expected, however, given the
number of incidents testified to, the passage of time, and the
complainants youth. In my view, it does not detract from her
credibility or reliability.
[24] What weight, if any, can be given to the failure of the accused to
testify?
[25] Section 4 of the Canada Evidence Act, RSC 1985, C c-5, prohibits a
judge or prosecutor from commenting to a jury on the failure of an
accused to testify. This does not mean, however, that the trier of fact,
whether a jury or a judge sitting alone, cannot weigh this factor into
the balance when considering whether or not to accept evidence (R v
B(JN) (1989), 56 Man R (2d) 215 (CA), 48 CCC (3d) 71; affd on other
grounds [1991] 1 SCR 66, 71 Man R (2d) 156 (B(JN)).

[26] In B(JN), the Court of Appeal for Manitoba stated:


The Crown must always prove its case against the accused. Unlike
some other systems of law, ours does not require an accused person to
deny the commission of the offence, apart from the entry of a formal
plea, or to explain his conduct. It would be quite wrong for a trier of
fact, or this court, to consider the accused's failure to testify as a fact
giving rise to an inference of guilt.
Nonetheless, the failure of the accused to testify may become relevant
once the Crown has introduced evidence which, if believed, satisfies
the trier of fact of guilt to the necessary extent. In deciding whether to
believe the Crowns witnesses, the trier of fact will inevitably consider
the absence of a denial by the accused or, if there are proven facts that
are capable of being explained in a manner consistent with innocence,
the absence of such an explanation.

[27] As was previously stated, I found the complainant to be a credible


witness. Subject to frailties in her testimony which might render her
evidence unreliable, I accept her evidence.
A. January 1, 2010 to December 31, 2013 - charge of indecent
exposure (incidents 1, 2, 3, & 4)
[28] With respect to Incidents #1, 2, and 3, I accept the complainant's
evidence and find that it establishes the accuseds guilt beyond a
reasonable doubt.
[29] With respect to Incident #4, the complainant testified that, while she
thought the accused was masturbating in her presence, she did not
actually look at him and cannot be sure. As a result, this incident was
not proven and is not considered to be a part of the facts supporting
the conviction on this charge.
B. March 21, 2014 - touching for a sexual purpose (incident #5):
[30] I must consider whether, given that Incident #5 was said to have
occurred in the presence of adults, the lack of corroborating evidence
renders the complainant's evidence unreliable.

[31] Section 274 of the Criminal Code states that corroboration is not
required for a conviction on a sexual offence and that judges must not
instruct juries that it is unsafe to find an accused guilty in the absence
of corroboration.
[32] This does not, however, mean that the trier of fact is not able to
consider the presence or absence of corroboration in determining the
weight to be given to evidence (R v Camp (1977), 17 OR (2d) 99
(CA), 79 DLR (3d) 462; R v Saulnier (1989), 89 NSR (2d) 208 (CA), 7
WCB (2d) 178).
[33] I place little weight on the failure of the mother to provide
corroborating evidence in relation to Incident #5, given the
complainants testimony that her mother neither supported her, nor
took steps to deal with the allegations after they were brought to her
attention.
[34] In relation to Incident #5, the evidence is that everyone, including the
complainant, was drinking. While I am suspicious of the accuseds
behaviour, I find that the level of drinking, coupled with the peculiar
circumstances of the accused engaging in sexual conduct in front of
so many people, including his partner, raises concerns. I find that it
would be dangerous to convict on this evidence and accordingly, I find
the accused not guilty.
C. February 15, 2015 - charges of touching for a sexual purpose and
breach of undertaking (incident #6)
[35] As was previously stated, the charge in relation to Incident #6
requires that the complainant be under the age of 16. Since the
complainant was over the age of 16 at the time, the charge of sexual
touching from February of 2015 is dismissed.
[36] There is ample evidence, which I accept, that the accused was in the
presence of the complainant while on conditions to not have any
contact with her. The accused is therefore guilty of the breach of
undertaking that arose on February of 2015.

10

V. CONCLUSION
[37] To summarize, I find as follows:
As regards Court File # 08-14244, on Count #1 (touching for a
sexual purpose), occurring March
21, 2014

Not guilty

As regards Court File # 08-14244, on Count #2 (indecent


exposure), occurring January 1,
2010 to December 31, 2013

Guilty

As regards Court File # 08-15-74,


on Count #1 (indecent exposure),
occurring February 15, 2015

Not guilty

As regards Court File #08-15-74,


on Count #2 (breach
undertaking), occurring February
15, 2015

Guilty

Dated at the City of Iqaluit this 21st day of September, 2015

___________________
Justice S. Cooper
Nunavut Court of Justice