nunavuumi iqkaqtuijikkut

NUNAVUT COURT OF JUSTICE

La Cour de justice du Nunavut
Citation:

R. v. Avalak, 2015 NUCJ 04

Date:
Docket:
Registry:

20150119
21-12-186
Iqaluit

Crown:

Her Majesty the Queen

-and-

Accused:

Johnny Avalak

________________________________________________________________________
Before:

The Honourable Madam Justice Cooper

Counsel (Crown):
Counsel (Accused):

Chris Punter
Paul Falvo

Location Heard:
Date Heard:
Matters:

Cambridge Bay, Nunavut

September 23-25, 2014
Criminal Code, s. 271(x2)

REASONS FOR JUDGMENT

(Delivered Orally)

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

DISCLAIMER PAGE
Restriction on Publication:
By court order made under section 486.5(1) 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information that could identify the complainant or a witness shall not be
published in any document or broadcast or transmitted in any way.

Amended Decision: An amended decision was issued on January 28,

2015; the corrections have been made to the text and the amendment is
appended to this judgment.

I. INTRODUCTION
[1]

Mr. Avalak is charged with two counts of sexual assault. The

complainant is his relative, who was 17 at the relevant time and living
in the same house as Mr. Avalak. It is alleged that on October 2324th, 2012, Mr. Avalak had sexual intercourse with his relative on two
separate occasions, in the house they shared, without her consent,
and at a time when others in the house were incapacitated due to the
consumption of alcohol.

II. EVIDENCE
A. Crown
[2]

The complainant testified that in October of 2012, she was living with
her grandmother. Also living in the home were the accused, who is
her relative, his girlfriend, and, for a short time, another couple.

[3]

The complainant was living in her grandmother's home because she

was encountering difficulties in her parent's house. There was
evidence that she was often picked on and treated badly in her
parent's house. The complainant also testified that she struggled with
alcohol and this was causing problems in the family home.

[4]

The complainant testified that on October 23, 2012, the accused, his
girlfriend, her grandmother, and she were in the home drinking vodka.
They started drinking in the living room and then moved to the room
that the accused shared with his girlfriend. Everyone was drunk.
Once her grandmother and the girlfriend of the accused had passed
out, the accused told her to go to the bathroom and he took her there.
Once there he closed the bathroom door and had sexual intercourse
with her. During the intercourse, she was face down on the floor and
the accused was behind her. He used a condom. The complainant did
not want to have sex with the accused and told him so more than
once. She called out to the women in the bedroom, but they did not
come as they were passed out. When he had finished the accused
told her not to tell anyone and he left the bathroom.

[5]

After the incident, the complainant left the house and ran out on to the
sea ice. She was young, she was upset, and she was drunk. The
RCMP located her on the sea ice and took her into custody. The
complainant believes that the RCMP were looking for her because her
grandmother became concerned for her and contacted them. The
complainant spent the night in the drunk tank and was released the
following day, October 24, 2012.

[6]

The complainant testified that when she returned to her

grandmother's, after being in the drunk tank, people in the home were
still drinking. She had a shower and was going to leave the house, but
her grandmother wanted her to stay. The complainant was
encouraged by the adults, including the accused, to drink and she
testified that the accused even held a cup to her mouth to get her to
drink. She testified that they were drinking in the living room and that
when her grandmother and the girlfriend passed out, the accused
took her to his room. He proceeded to have sexual intercourse with
her on the bed. Again, he used a condom. When he was done he
gave her $60, which she left on the bed.

[7]

The complainant agreed that she was drunk and was blacking out at
times. She testified to having a poor memory.

[8]

The Crown also called as a witness a civilian employee of the RCMP

who confirmed that, according to the records kept by the RCMP, the
complainant was booked into the cells in the early morning hours of
October 24, 2012. The records indicate that the accused was not in
cells at that time or during the few days preceding and following
October 23, 2012. The records indicated the accused was being held
in cells on November 2, 2012.

B. Defence
[9]

The Defence called a number of witnesses, however, the only witness

who had any relevant evidence was the accused. It was clear from
the demeanour and the evidence of the other Defence witnesses that
they had little or no idea as to why they were being called upon to
testify. They presented as reluctant to be involved in the matter and,
in particular, reluctant to say anything against the accused.

[10] The accused testified that on the evening in question, he and his
girlfriend were at a friend's house playing radio bingo. They had a few
drinks there. When they returned home his girlfriend called the
RCMP. The reason for calling the RCMP was not clear. When the
RCMP arrived his girlfriend asked that they take her in to custody.
However, the accused, out of concern for his girlfriend's safety while
in custody, asked that they take him instead. The RCMP agreed and,
as a consequence, he spent the night in RCMP cells.
[11] As the trial progressed it seemed that everyone moved from
discussing the evening of October 23 to the evening of October 22nd,
although it is apparent that everyone was referring to the night of the
radio bingo, the night the complainant spent in cells, and the night the
accused purported to spend in cells.
[12] The accused testified that he was released from custody the following
day around noon and, when he returned home, the complainant was
in the porch of the house preparing to go to work. He told her that he
had been in the drunk tank the previous night and she responded by
saying that she had been there as well. He testified that the encounter
in the porch was the only time he saw the complainant over those
couple of days. He denies drinking with her and denies sexual activity
with her.
[13] It is clear that on October 24th, the accused picked up a liquor order
of 9, 60 oz. bottles of vodka from the airport.
III. ANALYSIS
[14] This case turns on credibility. I must apply the approach set out by the
Supreme Court of Canada in R v W(D), [1991] 1 SCR 742, 1991
CanLII 93 (SCC). If I accept the evidence of the accused or if his
evidence raises a reasonable doubt, then I must acquit. Even if I
reject his evidence or if his evidence does not raise a reasonable
doubt, I must go on to consider the balance of the evidence and
consider whether, based on the evidence, I do accept that the Crown
has proven its case beyond a reasonable doubt.
[15] The evidence of each witness is not to be considered in isolation.
Evidence must be assessed in the context of all of the evidence.

A. Alibi evidence
[16] The Defence of the accused hinges in large part upon his having
been in RCMP cells on the evening of October 23, 2012. Although he
was not charged with the offences until approximately one month after
they are alleged to have occurred, he maintains that he was in
custody at the relevant time and, therefore, the incidents could not
have happened as alleged.
[17] The RCMP record and document every individual who is brought in to
custody. The evidence is that the records consist of three parts, which
are essentially an internal check. Each prisoner is given a number.
The numbers are assigned consecutively. It is the prisoner number,
not the prisoner's name, that is used in the guard log book in the cells.
There is also a Prisoner Report, or C13, which is completed for each
prisoner.
[18] The accused recalled being in custody on two occasions in 2012:
once on October 23, 2012 and the second time when he was arrested
in November of 2012. He recalls the names of three people who were
in custody at the same time on October 23, 2012. The complainant is
not one of them.
[19] The records confirm that the complainant was in RCMP cells in the
early morning hours of October 24, 2012.The RCMP records indicate
that the accused was in custody on November 2, 2012. The records
also indicate that the other people he referred to as also being in
custody were in cells on various dates preceding November 2, 2012.
[20] Two issues were raised with respect to the alibi put forward.
[21] First, the Crown made submissions during the trial that the alibi was
not disclosed in a timely manner and invited the Court to consider that
factor when determining what weight, if any, to be given to the alibi.
[22] Secondly, the Crown urged the Court to make a finding that the alibi
was concocted or fabricated and to use that as evidence of
consciousness of guilt of the accused.

[23] The leading case on alibi evidence is the Supreme Court of Canada
decision in R v Cleghorn, [1995] 3 SCR 175, 100 CCC (3d) 393.
While at one time the law did allow that an alibi not disclosed at the
earliest opportunity could be accorded less weight, the law has
developed so that the approach to alibi evidence is consistent with the
Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c
11, ss. 8, 9, 10(b), and 24(2) [Charter] and, in particular, the right of
an accused to remain silent.
[24] There are two elements to an alibi notice: adequacy and timeliness.
To be adequate, notice of an alibi must provide sufficient particulars to
the Crown to allow the veracity of the alibi to be properly investigated.
There is no requirement that the notice take any particular form or that
the notice be provided by the accused or his counsel.
[25] To be timely, notice of alibi must be given sufficiently in advance of
the trial to allow time for the prosecution to investigate. The fact that
an alibi could have been provided at an earlier date is of no
consequence and is not to be used to give less weight to the alibi.
[26] There are many legitimate reasons why the Defence may not disclose
an alibi early on in the process. For example, the date on the charge
may cover a broad range of time and it is only through crossexamination of the complainant, either at preliminary hearing or trial,
that the time frame can be narrowed. This is, but one example.
[27] Although there was no evidence on the point, counsel, through
submissions, indicated that the alibi was disclosed in this matter after
the preliminary hearing, in March of 2013. The trial was held
approximately seventeen months later.
[28] The alibi evidence in this matter was both adequate and timely.
Perhaps the best support for this was the fact that the Crown came to
trial armed with both documentary and viva voce evidence to
challenge the alibi. There is nothing in the manner of providing the
notice that prejudiced the Crown and supports the proposition that the
alibi should be given less weight because of the manner in which it
was provided.
[29] Having said that, I find that I am unable to accept the evidence of the
accused that he was in RCMP cells on the night of October 23, 2012,
and into the following day.

[30] His memory is affected by the passage of time and the consumption
of alcohol, yet he asks the Court to prefer his recollection of the dates
over the documentary evidence maintained by the RCMP. This is
simply not reasonable.
[31] The Defence argues that cross-examination showed that the RCMP
sometimes make mistakes in their record keeping. In this regard, the
Defence pointed out that there were corrections on some of the
records filed, indicating that the initial entry had been incorrect. This
may be the case, however, the system of record keeping is a selfcorrecting system consisting of three parts and designed to catch
such errors. The fact that there were some corrections shows that the
system was working as designed and that errors were caught.
[32] I find that the accused was mistaken as to the date that he was in
custody.
[33] The Crown asks that I go further and find that the accused fabricated
an alibi and that such a fabrication should be taken as consciousness
of guilt. In my view, the law does not allow me to do so in this case.
The law on alibi evidence is set out concisely in the following
quotation from the Supreme Court of Canada in R v Hibbert, [2002] 2
SCR 445, 163 CCC (3rd) 129, at para 67 of the CanLII reported
decision:
Before turning to the application of the proviso in light of the above, it
may be useful to summarize briefly the state of the law with respect to
the rejection of a defence of alibi.
-- In the absence of evidence of concoction (deliberate fabrication) an
alibi that is disbelieved has no evidentiary value.
--

A disbelieved alibi is insufficient to support an inference of

concoction or deliberate fabrication. There must be other evidence
from which a reasonable jury could conclude that the alibi was
deliberately fabricated and that the accused was involved in that
attempt to mislead the jury. It is the attempt to deceive, and not the
failed alibi, that supports an inference of consciousness of guilt.

-- In appropriate cases, for instance if there were multiple accused, the

jury should be instructed that the fabricated alibi may be used to
place the accused at the scene of the crime, but may fall short of
directly implicating him in its commission.

9
-- When there is evidence that an alibi was fabricated, at the instigation
or with the knowledge and approval of the accused, that evidence
may be used by the jury to support an inference of consciousness of
guilt.
-- In cases where such an inference is available, the jury should be
instructed that it may, not must, be drawn.
-- A fabricated alibi is not conclusive evidence of guilt.
(R v Hibbert, [2002] 2 SCR 445, 2002 SCC 39 (CanLII), online: <
http://canlii.ca/t/51s0 >)
[See also: R v Maracle, [2006] OJ No 568, 206 CCC (3) 36; R v Carey, [1996] QJ No
3898 (QL), 113 CCC (3d) 74; R v Tessier, [1997] BCJ No 515, 113 CCC (3) 538
(BCCA)]

[34] In the circumstances of this case, the fact that the documentary
evidence led by the Crown contradicts the alibi evidence led by the
accused does not lead to the conclusion that the accused was
engaged in a deliberate attempt to mislead the Court. The fact that
the evidence of the girlfriend of the accused is consistent with the
evidence of the accused on this point does not lead to a conclusion
that the accused encouraged or influenced her to provide him with a
false alibi.
[35] Evidence of fabrication allowing the Court to draw an inference of
consciousness of guilt requires more. It requires independent
evidence of concoction and fabrication, not simply evidence that the
alibi is, in fact, false.
[36] Further, even if I am wrong on this point, I would decline to make a
finding of fabrication for a number of reasons.
[37] First, if the accused was going to fabricate an alibi he could have
fabricated one which would not so easily be proven to be wrong by
the Crown. Reliable evidence either proving or disproving the alibi
was readily available and was beyond the control or influence of the
accused. He had to have been aware of this.

10

[38] Further, the purported alibi does not provide a complete defence to
the charges before the Court. There are two allegations of sexual
assault said to have occurred on consecutive days. The accused
would have been aware of this by the conclusion of the preliminary
hearing at the latest. His alibi notice was provided to the Crown after
the preliminary hearing. Surely if he was going to fabricate an alibi, he
would fabricate one which would provide a complete defence and not
just a potential partial defence.
C. Evidence of accused
[39] Having rejected the alibi evidence, I must go on to consider the
balance of the evidence of the accused. The evidence of the accused
was, at times, difficult to accept. For example, he spoke of being
concerned for the welfare of young people and encouraging them to
do positive things yet the evidence supports the proposition that he
was a key player in providing an environment where alcohol was
abused. He downplayed his contact with the complainant during the
time that she was living in the home. While I appreciate the limited
weight to be given to demeanour, the accused was argumentative,
combative, and at times, evasive.
[40] I find that the accused was not a credible witness and I reject his
evidence.
D. Balance of evidence
[41] For reasons previously indicated, I find it unnecessary to consider the
evidence of the other witnesses called by the accused.
E. Evidence of complainant
[42] I must consider the evidence of the complainant and determine how
much, if any, of her evidence I accept and if the evidence accepted is
sufficient to prove the case beyond a reasonable doubt.
[43] There are a number of factors I must consider in determining the
credibility and reliability of the complainant's evidence.

11

(i). Criminal record

[44] The complainant has a criminal record consisting of convictions for:
theft over $5,000, taking motor vehicle without consent, break and
enter, impaired driving, and breaches of Court orders.
[45] In my view, although the record includes convictions for offences of
dishonesty, it is of little weight or assistance in assessing credibility.
The criminal record is reflective of a troubled background and is,
unfortunately, the type of criminal record which is too common
amongst youth in this jurisdiction. In my view, it reflects a character
that lends itself to mischief rather than dishonesty.
(ii). Public mischief charge
[46] In January of 2014, the complainant was charged with public mischief.
The charge was subsequently stayed by the Crown. Nonetheless, the
circumstances are troubling.
[47] The complainant was intoxicated. Her boyfriend was living in another
community. She communicated to him through a number of text
messages that she had essentially been kidnapped by a couple of
men, that they had firearms, that they had put her in the trunk of a
vehicle and driven her somewhere, and that they were going to hurt
her. Naturally, her boyfriend contacted the police and inquiries were
made. The complainant testified that she knew the police were likely
to be contacted and to respond.
[48] As troubling as the communications to the boyfriend are, there is
further evidence that the complainant also met with the police after
the incident and continued with the story.
[49] At trial, she admitted that she had lied to her boyfriend and to the
police and that she did so knowing that an investigation would be
undertaken.
[50] It is not for me to question or speculate as to why the charge was not
proceeded with. I must rely on the evidence before me, which is an
admission by the complainant to having lied to the police about very
serious allegations.

12

(iii). Prior inconsistent statements and inconsistencies in the

Complainants evidence
[51] I must also consider any inconsistencies in the complainant's
testimony at trial and any inconsistencies in what she said at trial and
what she said on prior occasions. All witnesses are likely to have
some inconsistencies in their evidence, this is to be expected. People
will remember things slightly differently at different times, confuse
details, and perhaps provide answers that they are not completely
sure of in an effort to try and provide a complete version.
[52] Not all inconsistencies are significant and impact on the reliability of
the evidence, but some are.
[53] There are three inconsistencies in the evidence of the complainant
that give rise to concern.
[54] First, at the preliminary hearing the complainant testified that the first
sexual assault, before she was taken to the drunk tank, occurred in
the bedroom and that the second sexual assault, after she was
released from the drunk tank, occurred in the bathroom (see Trial
Transcript, page 90, lines 1-17). This is in contrast to her evidence at
trial where she testified that the first sexual assault occurred in the
bathroom and the second sexual assault in the bedroom.
[55] Secondly, at the preliminary hearing the complainant testified that she
found herself in the bathroom with the accused when she went by
herself to use the washroom and he followed her. At trial, she testified
that the accused took her to the bathroom, at one time saying he was
holding her by the arm and leading her in (see Trial Transcript, page
92 to 95).
[56] Lastly, at the preliminary hearing the complainant testified that the
accused gave her $60 and that she gave the money away. At trial, in
direct examination, she said that the money had never been in her
hand (see Trial Transcript, page 35, lines 20-22). In crossexamination, she explained that she had taken the money, but had
then left it in the living room (see Trial Transcript, pages 97-98).

13

(iv). Effect of alcohol

[57] The last factor that I must consider in assessing the reliability of the
complainant's evidence is the impact of alcohol on her perception of
events.
[58] Alcohol can affect a person's memory and perception of events and,
depending on the nature of the case, may be relevant when
assessing the extent to which the trier of fact should rely upon the
testimony of a witness. However, it is unlikely that in the
circumstances of this case alcohol would have impacted on the
complainant's perception of whether or not sexual intercourse
occurred. If there was sexual activity, then it was a sexual assault,
there being ample evidence that there was no consent and there
being no evidence to the contrary.
V. CONCLUSION
[59] There are many aspects of this case which are troubling, not the least
of which is the circumstances that this young girl found herself in,
without a safe, sober place to go to. It seems clear that she has had a
troubled adolescence and, regardless of the outcome of this matter, I
hope she can overcome her past and find her way.
[60] As indicated earlier in these reasons, I reject the evidence of the
accused. However, I am unable to conclude that the disbelieved alibi
is indicative of consciousness of guilt.
[61] Having said that, there are two factors that raise concerns about
relying upon the evidence of the complainant.
[62] One is the inconsistency between the complainant's evidence at the
preliminary hearing and at trial as to the sequence of the bathroom
sexual assault and the bedroom sexual assault. In my view, this is a
major inconsistency which was not explained.

14

[63] The second factor is the circumstances leading to the laying of a

public mischief charge, in which the complainant admitted to lying to
the police and making very serious false allegations. I appreciate that
there may well have been personal circumstances that contributed to
the complainant fabricating such a story, but the incident is not in the
distant past and the personal circumstances of the complainant were
also difficult during the time this matter has been pending. This is not
to say that the complainant's credibility is or should be forever
tarnished.
[64] The criminal standard is high. While I am highly suspicious of the
activities of the accused, I conclude that it would be dangerous to
convict on the evidence of the complainant, given the concerns
previously discussed.
[65] I find the accused not guilty on both counts.

Dated at the City of Iqaluit this 19th day of January, 2015

___________________
Justice S. Cooper
Nunavut Court of Justice

15

Amendment of the Reasons for Judgment Reserved of

The Honourable Madam Justice Cooper
_______________________________________________________
In paragraphs [01] and [02] changes have to made to remove references to the
relationship between the accused and the complainant in order to protect the identity of
the complainant.

Please replace the amended pages in your hard copy of the judgment.