Académique Documents
Professionnel Documents
Culture Documents
Date:
Docket:
Registry:
20150921
08-14-244; 08-15-74
Iqaluit
Crown:
Accused:
J.N.
________________________________________________________________________
Before:
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
DISCLAIMER PAGE
Restriction on Publication:
I. INTRODUCTION
[1]
[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]
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]
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]
B. Incident #2
[9]
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.
[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
Guilty
Not guilty
Guilty
___________________
Justice S. Cooper
Nunavut Court of Justice