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Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE


Cour de justice du Nunavut
Citation:

R. v. Oshoweetok, 2015 NUCJ 19

Date:
Docket:
Registry:

20150720
08-13-718
Iqaluit

Crown:

Her Majesty the Queen


-and-

Accused:

Naudla Oshoweetok

________________________________________________________________________
Before:

The Honourable Mr. Justice Kilpatrick

Counsel (Crown):
Counsel (Accused):

D. Garson
J. Bedford

Location Heard:
Date Heard:
Matters:

Iqaluit, Nunavut
June 24 and 29, 2015
Criminal Code, s. 246.1

REASONS FOR JUDGMENT

(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or a witness shall not be published in any document or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.

I. INTRODUCTION
[1]

Mr. Oshoweetok is on trial for a sexual assault that is said to have


occurred approximately 30 years ago.

[2]

The gloom of history obscures truth. As months turn into years, as


years turn into decades, the process of distilling historical truth from
fiction becomes increasingly difficult. Forensic investigation does not
readily illuminate times darker recesses. Factual certainty becomes
harder to achieve as the memories of witnesses and participants
slowly degrade over time.

[3]

The Court now journeys into this place of shadow and uncertainty.

II. EVIDENCE
A. The undisputed facts
[4]

Much of the factual narrative given by CA is not in dispute.

[5]

CA came to know Mr. Oshoweetok as a family friend when she was


living in Community X many years ago. CAs father was then a
Minister of Community Xs Anglican Church. Mr. Oshoweetok served
as a lay assistant in the Church. He was often invited over to the
family home following a church service for food and fellowship. Mr.
Oshoweetok was many years senior to CA. He was also married.

[6]

After some years, CAs family moves from Community X to a different


community. CA is sent to a school in the south. She returns to the
north every summer to reconnect with her family and to work.

[7]

In 1985-1986, CA is working as an interpreter and translator at the


hospital in Iqaluit. She is then between 19 and 20 years of age. Mr.
Oshoweetok calls CA at the hospital. He is in town, having travelled
from Community X to Iqaluit to undergo some type of training. He
invites CA to join him for dinner at a local hotel restaurant. CA agrees.
Despite the passing of years, Mr. Oshoweetok is still considered a
friend of the family. It has been many years since CA has last seen
Mr. Oshoweetok. CA is anxious to catch up on the news of friends
and families still living in Community X.

[8]

After CA finishes work, she meets Mr. Oshoweetok at the restaurant


as planned. They have dinner together. A bottle of wine is ordered
and consumed. CA has one full glass of wine and part of a second
glass with her dinner. They talk of old times and common
acquaintances. There is nothing said or done by either CA or Mr.
Oshoweetok that has sexual overtones.

[9]

At the conclusion of their dinner, Mr. Oshoweetok asks CA if she


would like to continue the visit in Mr. Oshoweetoks room. Mr.
Oshoweetok has given CA no reason to suspect his motive in asking
her to join him in the hotel room. CA agrees.

B. CAs evidence
[10] It is at this point that the evidence of CA diverges from the testimony
of Mr. Oshoweetok. Both parties agree that an act of full sexual
intercourse occurs in the hotel bedroom. CA insists that this was nonconsensual and that she expressly indicated her lack of consent to
Mr. Oshoweetok. Mr. Oshoweetok claims that the act of sexual
intercourse was fully consented to by CA and that she expressed her
consent verbally to Mr. Oshoweetok before having sex.
[11] CA indicates that upon entering the hotel room she put her jacket on a
chair and sat down at the foot of the bed. She is then approached by
Mr. Oshoweetok who gently pushes her down on the bed. CA asks
Mr. Oshoweetok what he was doing. He gives no answer. CAs green
corduroy pants are unbuttoned and her pants pulled down by Mr.
Oshoweetok. He joins CA on the bed and then penetrates her vagina.
CA says that she tells Mr. Oshoweetok to stop what he is doing. He
does not do so. CA says that she tells him no, but he persists.
[12] CA is in shock. Following the act of sexual intercourse she gets
dressed immediately and leaves the hotel room and the hotel. She
runs home.
[13] CA does not tell her roommate what had just happened. She does not
tell her father or her mother. CA says that she was not strong enough
to talk about what had happened. She felt embarrassed and
overwhelmed by the events that had overtaken her so CA does
nothing, and says nothing, for many years about the incident. CA says
that her own personal growth eventually allowed her to overcome her
fears. She finally discloses this dark secret to her father and sister
(YA) some eight years later.

[14] CA insists that she did not consent at any time to have any form of
intimate contact with Mr. Oshoweetok. There was no earlier history of
sexual contact with Mr. Oshoweetok. There was no flirting preceding
the act of sexual intercourse. Mr. Oshoweetok was much older than
CA. He was old enough to be CAs father. Mr. Oshoweetok was
married. CA says that she finds the very thought of intimate sexual
contact with Mr. Oshoweetok to be disgusting. This assertion by CA in
court was accompanied by appropriate body language and emotion.
C. Mr. Oshoweetoks evidence
[15] Mr. Oshoweetok says that they had been in the room for an estimated
twenty minutes when CA chose to lie down on the bed. Mr.
Oshoweetok was not asked and does not indicate where the two were
seated during this initial twenty minute period.
[16] While it is not clear from Mr. Oshoweetoks evidence what was
happening during this interval, the Court infers that there was further
small talk between the two.
[17] Mr. Oshoweetok says that he eventually lies on the bed beside CA
and puts his arm on top of her abdomen. He asks CA if she wants to
have sex and she says yes. Mr. Oshoweetok then stands up and
unbuttons CAs pants and removes them. He takes off his pants.
Throughout this process of clothing removal CA continues to lie on
the bed. There is no active or passive resistance of any kind. CA
makes no attempt to sit up or get off the bed while Mr. Oshoweetok is
busy removing his own clothing.
[18] Mr. Oshoweetok then joins CA on the bed and they engage in sexual
intercourse. While having sex, CA is alleged to have said to Mr.
Oshoweetok in Inuktitut I always say yes when someone wants to
make love to me. At one point during the act of sexual intercourse, it
is alleged that CA is on top and astride Mr. Oshoweetok moving up
and down. After some time, CA disengages when she is unable to
achieve an orgasm.
[19] CA then gets up and takes her clothing from where it was lying on the
bed. She goes to the washroom and gets dressed. Mr. Oshoweetok
gives CA money for the cab fare to get home.

D. Post-offence conduct
[20] Much time was spent on both examination and cross-examination of
CA exploring the post-offence contact between CA and Mr.
Oshoweetok.
[21] CA telephoned Mr. Oshoweetok on multiple occasions in the years
following the incident. These facts are not in dispute.
[22] CA called Mr. Oshoweetok to wish him a Merry Christmas. She also
spoke to him on other occasion to wish him a happy wedding
anniversary. These telephone greetings are not consistent with the
behavior one would ordinarily attribute to a person who has been
traumatized by rape. Some explanation for this extraordinary behavior
was called for. None was given.
[23] CA called Mr. Oshoweetok on two other occasions to solicit money.
She was unemployed and needed money to get by. CA says that the
trauma associated with her victimization by Mr. Oshoweetok had
caused her to leave her employment as an interpreter for Corrections
Canada. On the first of these occasions Mr. Oshoweetok sent her a
money order for two hundred dollars. On the second occasion he
declined to send further cash saying that he had no money to spare.
[24] In a further telephone conversation some 12 years after the incident,
CA calls Mr. Oshoweetok to arrange an in-person meeting with him in
Iqaluit. CA says that this was meeting was to facilitate Mr.
Oshoweetok giving her an in-person apology for the sexual assault
that he had committed. Mr. Oshoweetok says that the purpose of the
meeting was to facilitate the giving of mutual apologies; to seek
forgiveness from one another for having jointly participated in an act
of adultery.
[25] This meeting did eventually occur at the Anglican Church in
Community X in 2012. Mr. Oshoweetok paid for CAs airfare between
Iqaluit and Community X. There is some conflicting evidence about
what transpired at this meeting. There is further controversy about
what arrangements were made for the meeting and who was to attend
it. Nothing of substance turns on this.

[26] Since 2012, CA also communicated with various Bishops of the


Anglican Church seeking consequences for Mr. Oshoweetok. CA
wanted to see the Church terminate its association with Mr.
Oshoweetok. She also wanted to receive financial compensation for
the alleged sexual assault by Mr. Oshoweetok. CA says that she
wanted to see justice done.
[27] The Church eventually suspends Mr. Oshoweetok from assisting with
church activities for three months. The Church declines to give CA
any financial compensation for the alleged offence. CA is told by
Church officials that the provision of any compensation was
conditional upon Mr. Oshoweetok first being charged and found guilty
of a sexual offence. It is subsequent to CA receiving notice of the
Churchs position on compensation that CA lays a complaint with the
Royal Canadian Mounted Police against Mr. Oshoweetok.
[28] The Court heard testimony from CAs sister YA. YA describes her
relationship with CA as a close and open one. YA relates that CA
disclosed to her some years ago that she had been raped by Mr.
Oshoweetok in Community X and that this had occurred on multiple
occasions. CA had also indicated in a number of conversations that
she planned on seeking some form of financial compensation for
these crimes.
III. ANALYSIS
A. The burden of proof and the criminal standard
[29] Mr. Oshoweetok is presumed by the law to be innocent of this charge.
He does not have to establish his innocence. The burden of proof
remains on the Crown throughout this trial. This burden never shifts to
this defendant. 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.
[30] Mr. Oshoweetok has given up his right to silence. He has testified in
his own defence at his trial on this allegation. If this Court believes Mr.
Oshoweetoks evidence, he must be found not guilty. If the Court
does not believe his testimony, but finds that his evidence raises a
reasonable doubt about any essential element required to be proved
by the Crown, Mr. Oshoweetok must be given the benefit of that
doubt.

[31] If, at the end of the day, this Court does not know who or what to
believe, the law demands that Mr. Oshoweetok be acquitted. Once
again, it is the Crown who must establish guilt. The defendant does
not have to prove his innocence.
[32] A criminal trial is not a credibility contest between Crown and Defence
witnesses. Mr. Oshoweetok is entitled to the benefit of any reasonable
doubt on an issue of credibility arising from the testimony of witnesses
heard in this trial. It is not a matter of simply choosing one witness'
version of events over another. Such an approach would suggest that
Mr. Oshoweetok has some burden to persuade the trier of fact that his
version of the truth is more accurate and reliable. This is never the
case where innocence is at stake.
[33] Finally, even if this Court rejects Mr. Oshoweetoks evidence, even if it
finds that this evidence does not raise a reasonable doubt, Mr.
Oshoweetok can only be convicted if, on all of the evidence, his guilt
has in fact been proved by the Crown to the requisite criminal
standard.
B. The prosecution of historic allegations
[34] This Court has on a number of occasions outlined the difficulty
associated with proving historic allegations to the requisite criminal
standard. The Court reiterates again what it said in the case of R v
Horne, 2008 NUCJ 06, [2008] Nu J No 9:
[52] The standard of proof in a criminal prosecution, proof beyond a
reasonable doubt, is a high threshold to achieve. The Crown bears the
burden of proof, and it must do so with evidence that meets this
standard. This is so for a reason. Any lesser standard risks the
conviction of the innocent and a possible miscarriage of justice.
[53] The prosecution of historical offences presents the Crown with a
formidable challenge. Delayed reporting and the passage of time can
interfere with the collection of credible evidence. Forensic science
cannot assist where the physical evidence related to a crime or a crime
scene has disappeared.

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[54] Witnesses may die or disappear. Witnesses who are found may
choose not to cooperate. The passage of time may also affect a
witnesss memory. Details once remembered may be forgotten. The
greater the time, the more pronounced this phenomenon is likely to
become. Memories of events can shift over time as a result of subtle
influences caused by a witnesss changing life experiences. Honest
mistake and error can result. Delay affects not only the quantity of
evidence available to the Crown, but also its quality.
[55] It is against this background that the Crown must assemble its
evidence. Instead of alleging a specific date or dates when the alleged
offence or offences occurred, the Crown is left to indicate only a range
of time, a range which may extend over months or even years. Instead
of physical evidence, the Crown is left only with the word of an
alleged participant in the events being described.
[56] For all of these reasons, the passage of time, particularly great
time, can have a significant impact on both the type and the quality of
evidence available to the Crown. The passage of time will often result
in there being no independent evidence of a crime. Yet the
effectiveness of the fact-finding process may often depend upon there
being just such evidence. Such evidence is often needed to verify the
accuracy and completeness of a witnesss present memory of an
historical event. This is particularly important where there is a clash of
opinion about what happened.
10. The effect of delay on the Defence
[57] Where there is significant delay between an alleged event and a
trial, the Defence inherits many of the same problems experienced by
the Crown. Exculpatory evidence will often disappear or become
degraded with the passage of time A defendants memory will also
deteriorate with the passage of time.
[60] All of these disadvantages aside, there is an even greater problem
faced by an accused who defends against such dated allegations. In the
absence of any independent evidence, the Court must rely entirely
upon cross-examination and the adversarial process to assess the
strength and ultimate reliability of the Crowns evidence. Effective
cross-examination is an attack upon detail; it is there to expose
contradictions and unreliability. This right of cross-examination is
fundamental to any accuseds right to a fair trial. Cross-examination is
also fundamental to the truth-finding process itself.

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[61] Sexual offences usually occur in circumstances where there are no
witnesses and where there is a reduced chance of discovery. In the
absence of any independent evidence, the credibility assessment of the
participants becomes more difficult. The exploration of the contextual
details associated with the event through cross-examination is critical
to such an assessment in a trial environment.
[62] Where there is great delay between the date of the alleged
incident and the date of trial, testimony will likely be vague. It is
unlikely that such testimony will have the details necessary to expose
unreliability or falsehood. This absence of detail and any
contradictions that may be uncovered in cross-examination can also be
readily explained away by a witnesss fading memory. There is a
natural tendency for a Judge or jury to be more forgiving to a flawed
memory under these circumstances
[63] In relation to very dated events, there are very real limits as to
what can be achieved by cross-examination. Repeated responses such
as I cant remember or it was too long ago can effectively shut
down the testing process. The fewer the details and the larger the
memory gaps, the more difficult and dangerous the fact-finding
process becomes. Where the passage of time prevents substantial recall
of details, there remains only a bald assertion of fact. Where such an
assertion is met by an equally adamant denial, there is no safe basis to
distil fact from fiction.
[64] Cross-examination is best applied at a point where the witnesss
memories are reasonably intact. As events become more and more
remote in time to the application of this testing process, as memories
become degraded and details are forgotten, the testing process itself
becomes less effective, and progressively more and more impaired.
[65] Criminal trials are fought with forensic weapons. A timely crossexamination is one of the best and most effective means of discovering
the truth. To the extent that cross-examination is impaired, the truthfinding process dependent upon this is also adversely affected.
[66] The passage of time, particularly significant time, can make it
difficult and sometimes impossible to fight the fight that must be
fought. Sometimes the delay is such that proof of an offence beyond a
reasonable doubt becomes a standard that is simply unattainable in
human terms. Sometimes the delay is such that the weapons necessary
for an adequate defence cannot realistically be made available.

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C. Delay and the timing of CAs disclosure to police


[35] The Defence points to CAs failure to make a timely complaint as
evidence of the fact that the event described by her simply did not
happen as alleged. This is certainly an inference that can be drawn.
However, this is not the only inference that is possible from this
evidence. This area of evidence must be approached with caution.
[36] The fact that this complainant delayed reporting or failed to report the
alleged assault at the earliest possible opportunity does not
necessarily mean that the allegation she now makes is false.
[37] There is no one rule to tell us how human beings will behave in the
aftermath of an unexpected or frightening situation. Some may
immediately report an incident to a loved one or run to the police.
Others will remain silent. They may feel overwhelmed by the events
that have overtaken them, events that are beyond their control. They
may consequently delay reporting for days, for weeks, or even years.
Some may never make a complaint at all. They will suffer in silence.
[38] The reasons for this are many. Some are driven by fear to be silent.
Some fear the court process itself and the public humiliation that this
brings. Some may even feel guilty because they believe that they
contributed to their own victimization. Many, particularly young
children, do not know what to do so they do nothing. For this reason,
this Court cannot rely upon CAs failure to make a timely complaint
alone as a reason to disbelieve her evidence. The timing of the
complaint is simply one of a number of factors to be considered in
assessing a witnesss credibility.
[39] In making this assessment of credibility, the Court must consider not
only the relationship of the parties, but the embarrassing nature of the
allegations, and the personality, age, and life circumstances of the
individual complainant. The reasons given by a complainant for the
delay in reporting must also be considered.
[40] CA spoke of the reasons for the delay in disclosing the alleged
offence. She was a young adult. The allegation involved a friend of
the family and a work associate of her father who was a respected
member of the Anglican Church. She did not feel strong enough,
given her life circumstances at the time, to disclose to her parents.
She feared how her mother would react.

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[41] As CA matured, she grew stronger. She learned how to stand up for
herself. There came a point in CAs life where she felt sufficiently
empowered to speak out. This is when she disclosed to her sister and
her parents. This is when she attempted to see justice done by taking
her complaint to the Church.
[42] CAs reasons for her initial delay are credible. However, it is clear that
by 2008 CA was strong enough to talk about what had happened to
others. There is no real explanation on the evidence for why CA
delayed bringing the matter to the attention of the police once she
found her voice. No explanation for the post-2008 delay was solicited
by Crown counsel. The timing of the disclosure to the police lends
itself to an inference that the complaint to the police was made in an
effort to secure financial compensation from the Church. The Church
had refused to offer any compensation until a conviction was
registered against Mr. Oshoweetok.
[43] The timing of a civil claim for compensation for criminal injuries can
significantly complicate a criminal prosecution. The potential financial
benefits to a successful civil claimant may give rise to the suggestion
that a false criminal allegation has been made and that this has been
motivated by profit. This is particularly true where, as in this case, a
claim for compensation is pursued long before a criminal prosecution
is launched.
[44] YAs conversations with her sister were never recorded. YAs memory
of these distant conversations suffers from all the usual frailties of
human memory. However, in contrast to what CA tells the Court, YA
says that CA disclosed that there were multiple incidents involving this
defendant and that these had occurred in Community X not Iqaluit. At
various points in these conversations, there was discussion of a claim
being made for financial compensation. Where the evidence of YA
conflicts with the evidence given by CA, the resulting inconsistency
has the effect of undermining the credibility and reliability of CAs
evidence.
[45] CA is vague about whether Mr. Oshoweetok is dressed or undressed
when the act of sexual intercourse takes place. CA claims that she
does not see Mr. Oshoweetok removing his own pants. In court, CA
insists that the sexual assault occurred within a very short time of
entering the hotel bedroom. It is not disputed that in a letter written by
CA to the Church in 2012, CA described the alleged offence as
having occurred after she had been in the room for some 10 minutes.

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[46] There is no real explanation on the evidence for why CAs memory of
the events immediately preceding the rape is so fuzzy. Even if CA
was initially lulled into a state of non-resistance by the gentle nature of
the push on to the bed (as alleged by her), it should have been clear
to CA at the point her pants were being pulled down that mischief was
afoot. Yet she is unable to say how, when, or even if Mr. Oshoweetok
pulled down his pants. She would have had every reason to note what
Mr. Oshoweetok was doing from the point at which he started to pull
down her clothing. There may be a valid explanation for this lack of
detail, but it is not in evidence. CA was not examined on this point.
D. Cross-examination of Mr. Oshoweetok
[47] Mr. Oshoweetok testified in his own defence. He was not shaken in
his cross-examination by the Crown. The Crown is unable to point to
any part of Mr. Oshoweetoks testimony where he had overreached or
overstated the facts being alleged by him.
[48] Thirty years after the fact, it is unrealistic to expect a defendant (or a
complainant) to remember all the details of a conversation that
occurred in the distant past. If substantial details are provided,
questions would inevitably be raised about the accuracy or sincerity of
the speakers recollection. This is so particularly in circumstances
where there are no memory aids available to a witness to assist in
memory recovery. While Mr. Oshoweetok did his best to outline
details of the conversation he says he had with CA that led up to the
act of sexual intercourse, it is not surprising that the details of this
would be sparse.
[49] Nothing said by Mr. Oshoweetok was so inherently implausible as to
decisively undermine this accuseds credibility. It is not beyond the
pale of common sense or human experience that an offer first
extended by Mr. Oshoweetok to visit in the name of friendship could
subsequently change into a desire for a close encounter of a
physically intimate kind. Human motivation is not static. It can change
over time as circumstances change.

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IV. CONCLUSION
[50] At the end of the day, in the absence of any independent evidence of
any kind to verify which version of events is more accurate, the trier of
fact in a case involving historic allegations is left entirely dependent
upon cross-examination to find truth and uncover error or falsehood.
The evidence of every witness is entitled to some weight unless there
is a sound rational basis to question the sincerity or reliability of the
witnesss observations. In the absence of any significant damage to
credibility or reliability sustained through the process of examination,
the Court is unable to determine with the necessary degree of legal
certainty who or what to believe.
[51] In circumstances where oath is pitted against oath, there can be no
safe basis to discount the evidence of a witness absent a damaging
cross-examination. The demeanor of a witness while testifying is, by
itself, an insufficient basis to find truth. There must be more. There is
no magic in this. The fact finding process requires more than shadowy
mental operations dependent upon the trier of facts instinct or
intuition. If the Crown wishes to pursue the prosecution of historic
allegations in the absence of any independent evidence, then it is
incumbent upon the prosecution to achieve some degree of success
in its cross-examination of a defendant.
[52] The alleged offense may have occurred as alleged by CA, but this is
not the test for a conviction. As noted earlier, Mr. Oshoweetok is
entitled to the benefit of any reasonable doubt on an issue of
credibility.
[53] The Crown has not proved all essential elements of the offense
beyond a reasonable doubt. This is the standard that must be applied.
In the circumstances presented here, the law requires that I acquit.

Dated at the City of Iqaluit this 20th day of July, 2015

___________________
Justice R. Kilpatrick
Nunavut Court of Justice