Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
Date:
Docket:
Registry:
20150119
21-12-186
Iqaluit
Crown:
Accused:
Johnny Avalak
________________________________________________________________________
Before:
Counsel (Crown):
Counsel (Accused):
Chris Punter
Paul Falvo
Location Heard:
Date Heard:
Matters:
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information that could identify the complainant or a witness shall not be
published in any document or broadcast or transmitted in any way.
I. INTRODUCTION
[1]
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]
[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]
[7]
The complainant agreed that she was drunk and was blacking out at
times. She testified to having a poor memory.
[8]
B. Defence
[9]
[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.
--
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
12
13
14
___________________
Justice S. Cooper
Nunavut Court of Justice
15
Please replace the amended pages in your hard copy of the judgment.