nunavuumi iqkaqtuijikkut

NUNAVUT COURT OF JUSTICE

La Cour de justice du Nunavut

Citation: R. v. Ningiuk, 2017 NUCJ 06

Date of Judgement: 2017-03-08
File Number: 08-16-80
Registry: Iqaluit

Prosecutor: Her Majesty the Queen

-and-

Accused: Jessie Ningiuk

________________________________________________________________________

Before: The Honourable Mr. Justice N. Sharkey

Prosecutor: S. Gardezi
Accused: J. Morton

Location Heard: Iqaluit, Nunavut

Date Heard: 12 January 2017
Matters: Criminal Code, ss. 271

REASONS FOR JUDGEMENT

(Delivered Orally)

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

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DISCLAIMER PAGE

This matter is subject to a PUBLICATION BAN

ordered under s.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complainant or a witness shall not be
published in any document or broadcast or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."
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A. BACKGROUND

[1] The accused, Jesse Ningiuk is charged with one count of sexual
assault contrary to s. 271 of the Criminal Code of Canada, RSC
1985, c C-46 [Criminal Code]. The incident which gave rise the
charge took place a little over a year ago, on 25 January 2016.

[2] The accused pleaded not guilty and the trial took place before me on
12 January 2017. I reserved decision until today.

[3] There is a publication ban in this case respecting information which

might lead to identify the complainant. Accordingly, I shall refer to
her by her initials only, as KG, and to her female companion or
girlfriend, as QM.

[4] KG was 18 years old at the time of the alleged offence, and her
friend QM, 19 years old. It appears from Court documents that the
accused Jessie Ningiuk was about 21 years old at the time.

[5] Counsel have, at various points in the trial, made reference to Mr.
Ningiuk simply as Jessie, and so, for the most part, I will do likewise
in rendering judgment.

[6] The complainant, KG, and her friend, QM, had stayed up all night at
QMs place. They had not slept. They were basically just hanging
out, but not drinking or doing any drugs. They were sober.

[7] As morning approached, the complainant, KG and the accused,

Jessie, started texting each other. Jessie invited the two young
women to come over to his place, his apartment, which they did,
sometime between 8 and 9am. The incident which gave rise to this
criminal charge took place at Jessies apartment.

[8] KG testified that she knew Jessie only in passing from when she
was a young kid, and from generally seeing him around town.

[9] Jessie had a bottle of vodka at the apartment, and the three of them
had a few drinks, which Jessie poured. There was nobody else at
the apartment, just the three of them (the complainant, KG, her
friend QM, and the accused, Jessie).

[10] Both KG and QM testified that they had a couple of mixed

drinks as well as a couple of shooters; roughly about 6 or 8 ounces
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of hard liquor at the most, each.

[11] Neither the complainant, KG, nor her friend QM got drunk at
all. They both admitted being buzzed from the drinking but KG said
she was more just tired from staying up all night and that on a scale
of 1 to 10 she would have only been a 5 as far as drinking goes.

[12] KG testified that there was some pot being smoked but that
she never smoked any. She said her impression of Jessie was that
he was a guy that gets drunk easily.

[13] Shortly after they arrived, QM went to the washroom, leaving

KG and Jessie in the living room. KG testified that as she was
getting up from the couch Jessie to use KGs words stole a kiss.

[14] She said he then put his arm on her shoulder and guided her
hand to his exposed penis and held it there with his own hand. KG
testified that she resisted or put an end to this sexual overture by
lifting both her hand and Jessies off of his penis. She then went to
the washroom to see how her friend was doing.

[15] After QM came out of the washroom, everybody just continued

to socialize and generally hang out. KG testified that Jessie was
getting drunk, and QM testified that both she and KG, while they
were a bit buzzed, knew what they were doing.

[16] Eventually, sometime before 11am, the complainant KG

passed out or fell asleep, fully clothed, on the living room couch.
There was some discrepancy about whether she had taken off her
sweater before falling asleep but in my view this is not important.

[17] QM testified that she saw Jessie lift up KG from the couch and
carry her in her unconscious state while she was still asleep into
his bedroom and place her, fully clothed, on his bed.

[18] QM then decided to go home, but just before she left she and
Jessie engaged in some brief, and consensual sexual activity. QM
cut this activity short or ended it when she changed her mind about
continuing and decided just to leave and go home. This was fine
with Jessie and this brief sexual activity stopped.

[19] QM then left, leaving KG and Jessie alone in the apartment.

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[20] Just before she left, however, QM picked up KGs personal

belongings or stuff and put them beside the bed. She also put a
blanket over KG.

[21] QM testified that as she was leaving the apartment she told
Jessie, Dont do anything,.. and dont touch her stuff.

[22] Several hours later, around 5pm, KG woke up.

[23] She testified that when she woke up she found herself naked,
and that she was lying beside Jessie who was also naked, and
asleep or passed out. She said her underwear (bra and panties), as
well as her jeans and top, were on the floor beside the bed.

[24] KG testified that she was in a confused state and frantically

tried to put together what might have happened to her. She noticed
2 spent condoms. She also noticed some discharge on her body and
on her underwear. She testified as well that she felt soreness in her
vagina.

[25] She texted her friend QM and then she just left the apartment
with Jessie still asleep or passed out in the bedroom.

[26] KG testified that for the next week or so she carried on with
her normal activities but that, fearing the worst, decided eventually to
go to Public Health to be checked out for a possible STD.

[27] Shortly afterwards, the result came back positive and she was
informed she had contracted Chlamydia.

[28] KG testified that after finding this out she flipped out and
texted Jessie saying, You raped me. She said Jessie texted back
saying Im sorry. I was really hammered. KG said she then
removed or deleted anything to do with Jessie from her phone.

[29] KG testified she then told both her boyfriend and her father
what had happened, after which she went to the police to make a
complaint. KG testified that she felt nervous and shocked when she
was interviewed by a male police officer.

B. POSITION OF THE PARTIES

i. Crown
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[30] The Crown suggests that the circumstantial evidence is

compelling to the conclusion that the accused Jessie Ningiuk had
sexual intercourse with (or at least vaginally penetrated) the
complainant KG, and that this occurred at a time when the
complainant was incapable of giving consent because she was
asleep.

[31] The Crown says that Jessie had the exclusive opportunity to
take off KGs clothes and to violate KG under circumstances where
he had previously made an unwanted sexual advance to her.

[32] The Crown points to the fact that when Jessie carried KG to
the bedroom she was fully dressed but that after KG woke up she
was naked, that KG found spent condoms in the bedroom, that she
discovered some discharge on her body and underwear, and that
she felt her vagina was hurting.

[33] The Crown points further to the text message exchange

between KG and Jessie which the Crown says corroborates the
inference that Jessie assaulted KG while she was asleep.

[34] Under these circumstances, the Crown says, it is clear that

Jessie engaged in sexual activity with a complainant who was
incapacitated and thus, as a matter of law, committed sexual
assault.

ii. The Defence

[35] The Defence says I should not accept the complainants

testimony that she cannot remember anything that happened
between the time she fell asleep and the time she woke up.

[36] The Defence concedes that sexual activity took place, but the
Defence position is that in the 4 or 5 hours after KG passed out or
fell asleep there may well have been consensual sexual activity, and
even consensual intercourse between KG and the accused, Jessie.

[37] The Defence concedes as well that Jessie was interested

sexually in KG but that this by itself is not a crime.

[38] The Defence says that this is a case where 3 young people
getting together within a context where consensual sexual activity
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was certainly in the cards as a real possibility.

[39] The Defence suggests I should be suspicious of KGs

testimony since she told the Court she actually picked up the two
condoms and noticed they were used, whereas she told the police
she only assumed they had been used. Similarly, the Defence says
that KG told the police that Jessie had held her hand on his penis for
up to 20 to 25 seconds.

[40] The Defence suggests that KG was not drunk and although
she fell asleep at one point she knew what she was doing generally.

[41] The Defence suggests that the most likely scenario is that KG
engaged in consensual sexual intercourse with Jessie, and simply
regretted it later. And that only in the aftermath when there was a
repercussion to confront namely the chlamydia did she tell
people she had fallen asleep and must have been taken advantage
of.

[42] The Defence suggests that while such a scenario may be

speculative, it is nonetheless an equally speculative proposition that
KG was taken advantage of while she was asleep.

[43] The Defence reminds the Court of the burden on the Crown to
establish the elements of the offence and that the circumstantial
evidence in the case is consistent with both consensual and non-
consensual sexual activity.

[44] Accordingly, says the Defence, the Crown is unable to prove

the absence of consent at the required criminal standard of proof
beyond a reasonable doubt.

C. ANALYSIS AND CONCLUSION

[45] The issue in this case, as both counsel have articulately

pleaded, is whether it has been established that the complainant,
KG, did not consent to any sexual activity most particularly and
importantly, to any act of vaginal penetration or intercourse.

[46] Section 273.1 (1) of the Criminal Code makes it clear that in
cases of sexual assault, consent means the voluntary agreement of
the complainant to engage in the sexual activity in question.
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[47] Further, s. 273. 2 (b) says that no consent is obtained where

the complainant is incapable of consenting to the activity.

[48] And while incapacity is not defined in the Criminal Code, it is

well settled as both a matter of law as well as common sense
that an unconscious complainant or victim cannot consent, full stop.

[49] It matters not whether such a person is passed out from

excessive intoxication from alcohol or drugs, or unconscious
because of some trauma, or simply asleep. In such circumstances,
the unconscious person is incapable of giving consent.

[50] I am, of course, keenly aware of the burden on the Crown in a

case of sexual assault to prove every element of the offence,
including the requirement to prove beyond a reasonable doubt that
the complainant did not consent to the sexual activity in question. It
is not on the accused person to show or establish that the
complainant did consent, or may have consented.

[51] In this case, I accept KGs testimony that when her friend QM
went to the washroom that the accused, Jessie approached her and
kissed her in the manner she described that is, to use her words,
that he stole a kiss.

[52] I accept KGs testimony that Jessie then placed her hand on
his exposed penis, and that she lifted her hand off his penis, and at
the same time off his hand as well, because she did not want to
engage in this type of activity. I consider this factual information to
be important.

[53] It tells me that the accused, Jessie, had a sexual interest in

KG, and that he was made aware that KG was not interested in
going along with the sexual activity he had initiated.

[54] To be blunt from the outset, and from this very first sexual
overture, it is clear to me that Jessie wanted sex with KG, and that
he knew or learned quickly that KG did not share his interest.

[55] This act itself by Jessie namely, placing KGs hand on his
penis in an unanticipated fashion without first securing her consent
to sexual activity is, itself, a sexual assault, albeit in the context of
this case, it is not the activity of primary importance.
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[56] With respect I do not consider that fact that KG told the police
her hand was on, or may have been on, Jessies penis for perhaps
as long as 20 or 25 seconds before she pulled it away, to be any
indicator that there was, or may have been, some kind of consensual
activity between KG and the accused Jessie.

[57] It is not the amount of time that KGs hand was on Jessies
penis that is important; rather it is the fact that it was placed and held
there, not by her, but the accused which matters.

[58] I consider KGs guess or estimate, when she talked to the

police, about the number of seconds which passed while Jessie
held her hand to his penis to be nothing more than evidential
minutiae.

[59] Similarly, I am not suspicious of KGs testimony about the two

condoms: that she told the Court she actually picked up the
condoms and saw the spent contents, whereas she told the police
she only assumed that the condoms had been used. In my view
this discrepancy is also nothing more than unimportant evidential
minutiae.

[60] Indeed, KG also testified that she was not comfortable talking
with a male officer, at all, about the incident, and so her estimate of
25 seconds as the time Jessie held her hand to his penis, and the
fact she told the officer she simply assumed the condoms were used
are not, to me, particularly telling against her credibility or reliability.

[61] In this case, I found the complainant KG to be an honest and

reliable witness. She was not evasive, nor did she attempt to
embellish what she had to say.

[62] I was impressed as well with her forthright response when the
theory of the Defence was put to her namely, that she may have
had consensual relations with Jessie and then come to regret it
afterwards. She did not shrink from this suggestion in a manner that
made me at all suspicious and did not she react in an angry or
dismissive fashion.

[63] She responded calmly, stating:

I did not have sex with him. Even if I --- I wouldnt know if I
had sex with him, I dont remember if I ever did. {Trial
 9

transcript: p. 50, l, 3-5}

[64] I understand this to mean firstly that KG is asserting that she

did not have sex with Jessie (which in that context I understand to
mean that she did not engage with Jessie in sexual activity of her
own volition) and then adding, candidly, that she simply does not
know if she had sex with him, and that if such activity occurred, she
does not remember it.

[65] She was clear, however, that she did not consent to such
activity.

[66] Defence counsel also suggested to KG that she would not

want to admit to her boyfriend that she had gone to Jessies place
and had sex. KG responded to this proposition by stating
emphatically that
He (my boyfriend) was the first to know {Trial Transcript: p.
49, l, 5}

[67] And she added an additional assertion that:

I would tell him, obviously and
If I had [consensual] sex with another person, then I would
be straight-up, honest and tell my boyfriend what I had done.
{Trial Transcript: p. 49, l, 13-23.}

[68] KG is clear in asserting that she was not drunk, but she had
consumed somewhere around six ounces of straight liquor, vodka, in
a fairly short time between 9:00am and roughly 11:00am.

[69] Further, she had not slept at all the previous night - both she
and QM had showed up at Jessies place after having pulled an all-
nighter.

[70] It is, in my view, understandable that as a relatively small

person (she is slight in stature, and estimates her weight at 140lbs)
KG could pass out as a result of both general fatigue, as she said,
aided and abetted by the rapid consumption of alcohol, and not
wake up at all until around 5pm, hours later.

[71] I accept KGs testimony that when she awoke she felt
soreness in her vagina and also that she discovered discharge on
her body (albeit not from her vaginal area) and on her underwear.
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[72] Reviewing all the relevant evidence and weighing carefully the
theory of the Defence, I do not accept that KG consented to sexual
activity but regretted the encounter later after discovering that there
was a repercussion she needed to deal with namely, the discovery
of chlamydia, and was motivated to cover her tracks (so to speak) by
telling her father and boyfriend and eventually, the police that she
had been violated.

[73] I think it completely understandable that when KG woke up

naked with the accused Jessie beside, that she was confused about
what happened but carried on nonetheless over the next few days,
or even a week, with her day to day routine at the same time fearing
what Jessie might have done to her. And further, that in response to
this underlying fear or concern she decided, as a matter of caution,
to have herself checked out at Public Health for a possible STD.

[74] I also accept KGs testimony that after she discovered she had
contracted chlamydia she texted Jessie and told him, you raped
me, and that in response he texted a response by saying Im sorry,
I was really hammered.

[75] And I accept KGs testimony that upon receiving Jessies text
she was angry with him so much so that she deleted all of his
previous texts. It is understandable that KG would react in the
moment by deleting Jessie from her phone rather than take pause to
preserve his response as evidence. This behavior contradicts the
suggestion that KG was covering her tracks as the Defence
suggests. Rather it shows KG was reacting in a forthright manner,
consistent with her assertion of anger and growing sense of
violation.

[76] And, following on my previous finding that Jessie had a sexual

interest in KG which she did not share, I find that after carrying her to
the bedroom, he did at some point remove her clothing and had
sexual intercourse with her while she was unconscious.

[77] While the discovery of the chlamydia infection was the

ultimate motivation for KGs reporting this incident to the police, the
Crown acknowledged during argument that they had not provided
me with relevant medical evidence to support this theory of
transmission to a criminal standard.
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[78] The act of taking off KGs clothing is itself a sexual assault.
However, in this case that activity is simply part and parcel of the
greater violation which I do find that the accused perpetrated
namely, having sexual intercourse with an unconscious victim.

[79] Accordingly, and on the charge of sexual assault, I find the

accused, Jessie Ningiuk, guilty.

Dated at the City of Iqaluit this 8th day of March, 2017

___________________
Justice N. Sharkey
Nunavut Court of Justice