nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut

Citation: Date: Docket: Registry:

R. v. Illauq, 2013 NUCJ 13
20130716 04-10-10 Iqaluit

Crown:

Her Majesty the Queen
-and-

Accused:

Nicodemus Illauq

________________________________________________________________________ Before: Counsel (Crown): Counsel (Accused): Location Heard: Date Heard: Matters: The Honourable Mr. Justice Kilpatrick Doug Garson Laura Stevens Iqaluit, Nunavut June 24, 2013 Criminal Code, ss. 151, 152, 271

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made under section 486.4 of the Criminal Code, “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.”

I. INTRODUCTION [1] This citizen is charged with a number of sexual offences arising out of two alleged incidents in Clyde River involving a 14 year old female. II. THE FACTS A. The first incident: facts alleged – February 2010 [2] The complainant LAQ and her sister were walking down a street towards their grandparents’ residence. It was dark and cold. Both girls were wearing winter clothing. The girls were approached by the defendant who was operating a red truck. This vehicle had a single bench seat in the front. The defendant stopped his vehicle and offered to drive the girls home. The girls climbed in. LAQ’s sister LQ sat in the middle next to the defendant and LAQ sat beside the passenger door window. [3] The girls knew of the defendant. They had grown up in a small hamlet where everyone is a familiar face. Neither girl had any close connection with the defendant prior to this night. They were not friends, nor were they related to the defendant. [4] Instead of taking the girls home, the defendant took the females for a drive. The defendant stopped the vehicle out of town at the airport runway. The defendant offered the girls a drink from a bottle containing a red/pinkish liquid. The defendant said that this was homebrew. Both girls had a sip from this bottle. [5] After some time, the defendant asked the girls to switch places. They did so. [6] LAQ says that she switched places with LQ because LQ was feeling uncomfortable next to the defendant. LQ was begging LAQ to take her place. The complainant says that she was reluctant to trade places, but did so for her sister.

[7] LAQ says that the defendant asked her to be his “secret” girlfriend. He offered to give LAQ alcohol if she would agree to have sexual intercourse with him. LAQ says that she immediately rejected this suggestion. The defendant is then alleged to have continued his advances. He attempted to kiss LAQ. LAQ says that she pushed him away with her hands and then attempted to move further away by sliding over the bench seat towards her sister and the passenger door. [8] LAQ alleges that at one point the defendant touched her on her upper leg. He was moving his hand up the leg towards her vaginal area. He never succeeded in doing this. LAQ says that she immediately used her hand to push him away. [9] The alleged incident ended abruptly when another vehicle or skidoo approached the stationary red truck. The red truck was not supposed to be where it was. The defendant immediately started his vehicle and then returned the girls to town. The girls were dropped off adjacent to the “big rock”. Before leaving the vehicle, the defendant is alleged to have asked LAQ if he could see her again when he got his hands on some real alcohol. LAQ says that she rejected this suggestion with a verbal response of “no”. The girls got out of the truck and walked the rest of the way home. B. The second incident: facts alleged – March 5, 2010 [10] On this date, a good friend of LAQ, M.I., then 16 or 17 years of age, dropped by LAQ’s grandparents residence. It was the night of the teen dance. LAQ planned to attend this event. She was getting ready to go. MI suggested that they drink some alcohol. LAQ asked MI where they could get alcohol. MI did not respond.

[11] Shortly after leaving her grandparent’s residence with MI, the girls approached a stationary hamlet vehicle parked at the side of the road. The defendant was alone inside this vehicle. MI invited LAQ to get in. LAQ was reluctant to do so, but was pulled inside the vehicle’s back seat by MI who had hold of LAQ’s arm. The vehicle was started, and pulled away. After driving a short distance, the vehicle suddenly stopped and MI got out. MI was at her place. The defendant drove off saying that he would pick MI up in a few minutes. LAQ was now alone with the defendant. MI is related to the defendant. [12] The defendant drove the hamlet vehicle to a location near the hamlet’s gas station. He parked some distance off the travelled portion of the roadway. It was10:00 p.m. It was also cold, and both the defendant and LAQ were wearing their winter parkas. [13] The defendant got into the back seat. He had a 60 oz. bottle of Smirnoff Vodka with him. LAQ claims that the defendant said that he asked her to have “sex” with him in exchange for alcohol. He tried to kiss LAQ who pushed him away with her hands before he could do so. He also attempted to touch the complainant on her leg. The complainant says that she pushed his hand away. She then slid over the seat closer to the door. [14] The defendant’s common-law spouse, EA, suddenly arrived at the scene. She pulled open the front passenger door causing the vehicle’s interior light to come on. On seeing the defendant in the back seat with LAQ, EA became irate. She called the defendant “a pig”. LAQ immediately exited the hamlet vehicle from the rear door. She was intercepted by an angry EA who punched LAQ in the face. LAQ did not fight back. She immediately fled the area.

[15] A few days after this incident, LAQ met EA again inside the porch area of the Arruja store. EA was still very angry with LAQ. She accused LAQ of trying to go after her boyfriend. LAQ was repeatedly pushed by EA causing LAQ to fall to the ground by the garbage. LAQ was able to extricate herself from this physical confrontation. She immediately left the store. LAQ says that her sister LQ and her cousin AB were both present to see what happened. [16] Fearing further trouble, LAQ says that she called EA at EA’s parent’s place. LAQ says that she told EA that she was not fooling around with her common-law husband. She says that she told EA that she did not want anything to happen between herself and the defendant. EA did not believe LAQ. She remained very angry. [17] Following this phone call, EA called the RCMP to report the incident of March 5th. C. The burden of proof and the presumption of innocence [18] Mr. Illauq is presumed by the law to be innocent of these charges. He does not have to establish his innocence. The burden of proof remains on the Crown throughout this trial. This burden never shifts to the accused. 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. [19] If any of the evidence heard in this trial raises a reasonable doubt about any essential element required to be proved by the Crown, Mr. Illauq must be given the benefit of this doubt. The defendant must be found not guilty because the presumption of innocence will then not be displaced by evidence establishing guilt beyond a reasonable doubt. [20] If, at the end of the day, the Court does not know who or what to believe the law demands that he be acquitted. Once again, it is the Crown who must establish guilt. The accused does not have to prove his innocence.

III. ANALYSIS A. The first alleged incident (Counts 4, 5 and 6) [21] LAQ was not shaken in her cross examination. There were no significant internal contradictions or inconsistencies revealed as a consequence of her examination under oath. The evidence given by LAQ’s sister LQ, though consistent and corroborative in some respects, is inconsistent and not corroborative in many critical areas related to the alleged commission of the offences. [22] LQ confirms the complainant’s testimony about the circumstances of the girls being picked up by the defendant in the red truck. She confirms the initial seating arrangement within the truck and the trip out to the Clyde River airport. She confirms the presence of homebrew in the vehicle. She confirms an offer made by the defendant to have the girls consume this alcohol. LQ agrees that both girls then sampled the brew. She confirms that the defendant asked the girls to switch places in the vehicle. LQ says that they eventually left the airport area and that the defendant dropped the girls off a block away from their house. [23] LQ does not confirm that she was uncomfortable sitting beside the defendant. She does not say that she begged LAQ to switch places with her in the vehicle. LQ did not hear the defendant offer LAQ alcohol for sexual intercourse. She did not see the defendant attempt to kiss LAQ, nor did she see the alleged touching of LAQ’s upper thigh. LQ does not confirm overhearing the defendant ask her sister whether he could see her again later if he could find her real alcohol. [24] LQ testified that she is very close to her sister LAQ. LQ was a witness favorable to the complainant’s interests. LQ should have been an eye witness to the events underlying the charges against the defendant. She was seated within inches of the complainant. She was immediately beside her sister when the attempted kiss was allegedly made and the fondling of the complainant’s upper thigh occurred.

[25] None of the witnesses were asked by the Crown whether the interior lights were on inside the truck, or whether there was any lights exterior to the truck from the airport illuminating the interior of the vehicle. [26] Even if the alleged events underlying the charges were obscured by darkness inside the vehicle or by the presence of LAQ’s parka, LAQ’s apparent moves to rebuff these advances should have been apparent to someone seated beside her. LAQ says that she shoved the defendant away from her with her hands and attempted to slide closer to her sister and the passenger door when these events occurred. [27] LQ suggested in her evidence that there was some conversation in the vehicle between LAQ and the defendant that she was not able to hear. The examination of this witness by the Crown does not explain why. The Crown did not ask LQ or the complainant whether there was a radio on inside the truck, or whether the truck was even running when the events allegedly occurred. The Crown did not inquire whether the independent witness, LQ, suffers from any hearing impairment. The Court is left with LQ’s assertion in cross-examination that everyone, including the defendant, was speaking in a normal tone of voice. [28] LQ’s failure to hear the critical part of the conversation between the defendant and the complainant is unexplained. LQ’s failure to see any suspicious interaction in the form of touching or movement by the complainant is not explained or explainable on the limited evidence before the Court. This is unsatisfactory. The Crown’s examination of its own witnesses reveals many significant problems that this Court is unable to resolve. (i). Conclusion [29] The failure of the Crown’s independent witness to confirm any of the material allegations related to the sexual offences leaves this Court with a doubt.

[30] The circumstances outlined by both girls may give rise to considerable suspicion, but this is not the test for a conviction. There may be moral turpitude in the defendant supplying, or offering to supply alcohol to 14 year old females, but the evidence related to the sexual offences is not sufficient to advance the Crown’s case to prove beyond a reasonable doubt. The Crown has not discharged its onus in relation to counts 4, 5 and 6. The defendant is entitled to the benefit of any reasonable doubt arising from the evidence. The law requires that he be acquitted of these counts. [31] The defendant is not charged with, nor is he on trial for, supplying a minor with alcohol under the Territorial Liquor Act, R.S.N.W.T. 1988, c. L-9, as duplicated for Nunavut by s.29 of the Nunavut Act, S.C. 1993, c. 28. B. The 2nd incident: sexual assault (Count 3) and touching for a sexual purpose (Count 1) [32] In her examination in chief, LAQ spoke of the defendant having attempted to kiss her on two occasions in the backseat of the hamlet truck. He was not successful. With reference to the allegation of touching for a sexual purpose, the complainant said this in chief:
And then he was reaching to kiss me, so I pushed him away, and then he tried touching me on my legs, so I moved a little to the door, and then as he leaned to kiss me, we heard footsteps. (transcript page 11 lines 11-14)

[33] However, in cross-examination, as a result of mishearing the complainant’s evidence in chief, defense counsel put a leading question to LAQ that resulted in the following exchange:
Q. You also said that he touched you on your legs? A. Yes. Q. Can you describe that, please? What part of your leg? A. My femur. Q. Okay, the upper part of your leg? A. Yes. (Transcript page 16 line 27 to 17 line 6)

[34] This apparent change in the complainant’s evidence was never clarified by the Crown in re-examination. The Court is left with what appears to be a contradiction. There may well be an innocent explanation for this difference in testimony, but this young witness was never asked for one by Crown counsel. (i) Conclusion [35] The Court is left with uncertainty on a critical element of the Crown’s case. For both the count of sexual assault and the count alleging a touching for a sexual purpose, the Crown must establish on proof beyond a reasonable doubt that a touching did in fact occur. The Court has been left with a doubt arising from the evidence that it is unable to resolve. [36] The Crown has not discharged its onus in relation to these two counts. The defendant must consequently be acquitted of the offences charged. [37] Given the uncertain state of the evidence, it would be dangerous to convict on the basis of an attempt to commit either substantive offence.

C. The second incident: Invitation to sexual touching (Count 2) [38] In relation to this count, LAQ said this in her examination in chief:
A. And I – I just remembered that he wanted to have sex with me for a real vodka and – Q. Okay. Did you say anything? A. No, I just sat there and - speechless. (Transcript page 11 lines 6 – 9)

[39] It was not clear from this brief testimony whether the complainant actually heard the defendant say that he wanted sex in exchange for alcohol, or whether she merely inferred this intention from his subsequent conduct. This issue was later clarified during LAQ’s cross-examination by defense counsel. The following exchange took place:
Q. Did you offer to have sex with him if he would give you a drink? A. No. Q. My note of your testimony was that you said this, “I just remembered that he wanted to have sex with me for the bottle.” A. Yeah, I didn’t ask for it. He asked for it. (Transcript page 16 lines 2 – 8)

[40] The Court is satisfied on the basis of all the evidence that this young complainant did hear the defendant make a verbal offer to her to exchange alcohol for sex. She was shocked by this comment. It left her speechless. [41] In relation to the count alleging an invitation to sexual touching, LAQ was not shaken in her cross examination. There were no significant internal contradictions or inconsistencies revealed as a consequence of her examination or cross examination under oath. The evidence under oath of any witness, including a young witness, is entitled to some weight unless there is good reason to question its reliability or accuracy.

[42] EA confirms and corroborates much of the complainant’s testimony about the circumstances surrounding LAQ’s presence in the hamlet vehicle. While EA did not see the 60 oz. bottle of Smirnoff Vodka in the back set of this vehicle, it is likely, given the high emotions surrounding her discovery, EA’s attention was focused on other things. EA first assaulted LAQ. She then berated her husband who followed LAQ out of the vehicle. The bottle of alcohol could easily have been secreted in the back seat and might have been missed by EA in the confrontation that followed. The Court has no reason to disbelieve the complainant when she gives specific information about the alcohol type and bottle size that she observed in the possession of the defendant. [43] EA’s testimony corroborates LAQ’s assertion that she was joined by the defendant in the back seat of the hamlet vehicle. This is where EA found the defendant when she opened the door of the hamlet vehicle. The Court has no doubt that it was the defendant who drove this vehicle to an isolated location at night and parked. There is no suggestion on the evidence that the defendant was forced to do this, or that anyone else did the driving. There is no evidence to suggest that the defendant was in the back seat of the hamlet vehicle unwillingly or reluctantly. [44] The complainant has explained how and why the defendant joined her in the back seat. LAQ’s explanation has not been contradicted, nor has its reliability been potentially undermined or compromised by any other evidence. [45] The complainant LAQ firmly rejected the suggestion put to her on cross examination that it was she who offered to have sex with the defendant if he would supply her with alcohol. The defendant suggests that the complainant had a motive to distort the truth. The defendant suggests that she invented the suggestion that the defendant was the aggressor because she had “been confronted with the truth” by others in the community including her biological father and the defendant’s common-law spouse. She needed a pretext to deflect the blame from herself. This was done by blaming the defendant for what happened.

[46] The rumor or gossip circulating in the hamlet of Clyde River about the events of March 5th, referenced in the cross examination of the complainant, does not constitute evidence. It is hearsay and entirely untested by cross-examination. This young complainant has emphatically asserted under oath that there has never been any substance to the rumours being circulated against her in the community of Clyde River. The Court has been given no reason on the evidence to conclude otherwise. The Court will not base an adverse finding of credibility upon shadowy gossip that routinely circulates in a small community following the laying of a criminal charge. [47] It was the defendant’s relative MI who sought out the complainant and invited her to go drinking. MI was asked by LAQ where this alcohol could be obtained. MI did not respond. It was the defendant’s relative who then led LAQ to a parked vehicle owned by the Hamlet. It was the defendant’s relative who subsequently guided LAQ inside this vehicle. The defendant was inside. He had a bottle of Smirnoff Vodka in his possession. The pick-up of the complainant by the defendant was quickly followed by the sudden and unexplained departure of MI. [48] It strains credulity to believe that this encounter with LAQ occurred because the defendant simply happened to be sitting in a parked hamlet vehicle at night. It strains credulity to believe that the defendant just happened to have a bottle of alcohol in his possession when the complainant came along. The defendant’s meeting of the complainant on this 2nd occasion smacks of planning, not coincidence.

[49] The complainant did not really know the defendant. He was not her friend or companion. He was not related to the complainant. It offends common sense to believe that this surreptitious rendezvous in the back seat of a motor vehicle at night was solely for the purpose of having LAQ join the defendant as a drinking companion. The defendant was an adult. He was 32 years of age. LAQ was a 14 year old adolescent. They shared nothing in common. The defendant was in his home community. The defendant would have had many other adult drinking companions to party with, including his common law spouse. The Court rejects any suggestion that the night time rendezvous with the complainant was consistent with an innocent purpose. [50] It was the defendant who chose to drive the young complainant to an isolated location. It was the defendant who then parked the vehicle off the road. It was the defendant who moved from the front seat of the vehicle to the back seat. There is absolutely no suggestion on the evidence that the young complainant was the instigator or prime mover behind any of these events. In these circumstances, it strains credulity to believe that the defendant was the hapless and unsuspecting victim of an unscrupulous 14 year old who sought out the defendant to trade sex for alcohol. [51] Defense argues that where the Crown particularizes the charge of invitation for sexual touching by identifying certain parts of the human anatomy as being the subject of the alleged invitation, the Crown is bound to prove these particulars or risk an acquittal. [52] In this case, the information alleges that the defendant invited sexual touching by having the complainant touch the defendant’s penis. The Crown’s evidence in this trial goes only so far as to allege an invitation to have “sex” in exchange for alcohol. There is no evidence directly linking the invitation alleged in this case to include a touching of the defendant’s penis.

[53] The Crown urges the Court to convict on the basis that an invitation to engage in sex would by necessary implication involve some form of contact with the defendant’s genitals. The defendant urges the Court to enter an acquittal because the invitation to have “sex” in this case might have contemplated other forms of sexual activity that did not include a touching of the penis. [54] This charging offence was intended to protect children and youth from adults who attempt to solicit their involvement in unlawful sexual activity through some form of physical touching. All forms of sexual activity are proscribed by this. It does not matter whether the invitation to touch extends to oral sex alone, to full sexual intercourse, to fondling or a combination of these activities. The moral culpability of the adult who encourages youth and children to engage in unlawful sexual activity is very high regardless of the form of sexual contact being solicited. [55] The gravamen of this offense is an invitation made by an adult to a person under 16 to engage in unlawful sexual activity that involves some form of bodily contact or touching. It is not the specific type of sexual touching being solicited that is the focus of this charge. It is the solicitation itself. [56] The defense is entitled to sufficient particulars to identify the transaction underlying this allegation. The defense has a right to know the case that it has to meet. However, beyond this, the defense has no right to expect particulars of the type of sexual touching being solicited, to be defined with precision in the charging document. [57] There is nothing before the Court to suggest that the defendant was not able to identify the alleged transaction being alleged by the Crown in this case. The defendant was aware that the Crown alleged that he had invited the named complainant to engage in a form of sexual touching on the date and at the place specified in the information.

[58] There is nothing before the Court to suggest that the defendant was prejudiced in his defense as a result of the evidence given at trial being at variance with the touching described in the information. [59] A legal requirement to allege and prove the particular form of sexual touching underlying the invitation could potentially result in a multiplicity of charges having to be alleged where a number of different forms of sexual activity are the subject of the invitation. [60] This Court concludes that a detailed description outlining the nature of the sexual touching being alleged in a charge of invitation to sexual touching is surplusage as long as there is sufficient information to identify the transaction being alleged. If the charge particularizes an invitation to engage in touching through oral sex on a particular date with a particular complainant but the evidence subsequently establishes an invitation to engage in an act of full sexual intercourse, the defendant does not stand to be acquitted. The offence is made out as long as the evidence proves beyond a reasonable doubt that an invitation to engage in unlawful sexual activity involving some form of touching was made on the date in question to a named complainant who was then under 16 years of age. Nothing more is required to be alleged or proven by the Crown. IV. CONCLUSION [61] This Court accepts the evidence of LAQ. The Court finds this witness’s evidence to be both credible and trustworthy. There is no evidence raising a reasonable doubt about the complainant’s version of events.

[62] By inviting LAQ, a person under the age of 16 years, to engage in sex in exchange for alcohol, the defendant explicitly invited the young person to engage in unlawful sexual activity involving sexual touching. This invitation may have extended to full sexual intercourse. It may have contemplated only oral sex or some form of fondling. For the purposes of this proceeding, the precise range of activity contemplated by the invitation “to have sex” need not be proven by the Crown. This offense was complete when the defendant invited the complainant, a person who was then only 14 years of age, to have sex. The Court is satisfied that in doing so, the defendant had the requisite criminal purpose or state of mind. [63] This Court finds that the Crown has proven beyond a reasonable doubt all requisite elements of the offence alleged in count 2. The defendant is therefore found guilty of this count. [64] In accordance with section 601(2) of the Canadian Criminal Code (Criminal Code), this Court directs that count 2 be amended to accord with the evidence heard at trial. This count now reads as follows: On or about the 5th day of March 2010, at or near the Hamlet of Clyde River, in the Territory of Nunavut, Nicodemus Illauq did, for a sexual purpose, invite LAQ, a person under the age of 16 years, to touch directly or indirectly, with a part of her body or with an object, the body of the defendant, by inviting the said LAQ to have sex with the defendant in exchange for alcohol, contrary to section 152 of the Criminal Code.

Dated at the City of Iqaluit this 16th day of July, 2013

___________________ Justice R. Kilpatrick Nunavut Court of Justice

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