Supreme Court

V» » 6c o^ nn <^b l IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES ' #

BET^VEEN: J r̂ 't V . HER MAJESTY THE QUEEN - and -B

Trial Held at Frobisher Bay, Northwest Territories November 9, 1977 \'^-\^\,\ Judgment of the Court Filed February 7, 1977 Found Guilty - Sentence Reserved

Reasons"for Judgment of; The Honourable Mr. Justice C. F. Tallis

IJounsel on the Hearing: Mr. B. Fontaine, for the Crown Mr. P. Knoll for the Accused ^

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES \ BETIVEEN; HER MAJESTY THE QUEEN - and -B Counsel on the Hearing: Mr. B. Fontaine, for the Crown Mr. P. Knoll for the Accused

REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE C. F. TALLIS The Accused B Stands charged that "he as a male person, on or about the 7th day of May, A.D. 1976 at or near Frobisher Bay in the Northwest Territories did unlawfully have sexual intercourse with E J , a female person not his wife and under the age of 14 years, contrary to Section 14 6 of the Criminal Code." The trial of this matter has now been concluded. Counsel have delivered both oral and written arguments in which all the issues have been fully canvassed. Section 146 of the Criminal Code defines the offence charged in the following terms: "145. (1) Every m.ale person v;ho has sexual interco'JLTse '.vith ̂ . jeî ale person '.s'ho (a) is not his wife, and ^ ^

- 2 -(b) is under the age of fourteen years, whether or not he believes that she is fourteen years of age or more, is guilty ­of an indictable offence and is liable to imprisonment for life." ^v In this particular case there is little, if any, dis­pute as to the facts. At the trial Counsel for the Crown and the Accused signed an admission of facts which is filed pursuant to the provisions of the Criminal Code. From the Admission of ; i

Facts and other evidence adduced, the following, inter alia, material facts have been established beyond a reasonable doubt in my mind: \. (1) The Accused B J is a male person of 27 years of age.

(2) E J named in the Indictment is a female. person and was 11 years of age on May 7, 1976. (3) That the accused had sexual inter­course with E J in a bedroom of the house of L N at Frobisher Bay, Northwest Territories on the 7th day of May 1976. (4) E J is not the wife of the Accused. (5) On May 7, 19 76 the accused was living at the house of K and L N in Frobisher Bay, Northwest Territories. E J was also living in the same house. L N is her married sister. From the foregoing it will be seen that intercourse aclnitte-ily took place v/ith E J . Under the circumstances I ao i\^t feel thiat it is necessary tor n̂e to outline in detail ^

- 3 ­all the evidence that was adduced. I am satisfied that the wit-\ nesses L N , Constable Brian Ross and Corporal L. McAllister are credible witnesses but their evidence in relation to the issues involved merely Supplements the admitted facts. At the time of this alleged offence the accused was ad­mittedly under the influence of liquor. E J described him as being in a drunken condition. She was told by the accused to come to his bed and go beside the wall side of the bed. She in-I dicated she did this because she was afraid of him. The accused

told her to take her pants off. She did this. He took his clo­thing «>ff with the exception of his shorts and then joined her in bed. The accused then took her panties off, took his own shorts off and had sexual intercourse with her. The alleged offence "took place at approximately 10.45 p.m. on May 7, 1976. At 11.55 p.m. on the same date a breathalyzer test on the accused gave a reading of .120. A further test at 12.08 a.m. on May 8, 1976 gave a reading of .130 with respect to i.lie accused. . The accused gave evidence in this particular case. Two psychiatrists were called by the defence: Dr. John Atcheson and Dr. K. McKay. With the agreement of the Crown certain other medi­cal reports were filed on behalf of the accused. The accused is 2 7 years of age. He is now very fluent in both Lnglish and his native tongue. Apparently he started drinkiny ..uite heavily even when he was quice young. In 1973

- 4 ­i he was seriously injured in a car accident in Ottawa. He sus­tained head injuries of a serious nature. These injuries are detailed in the medical report of Dr. Schowalter. However it should be noted that even prior to this accident in 1973 the accused by his own admission drank large quantities of alcohol from time to time with the result that he would wake up not knowing where he was or what he had done the previous evening. In February of 1976 the accused indicated that he was staying in Frobisher Bay. To use his own words, he said that he used liquor as an escape. On February 27, 1976 he became in-vol/ed in heavy drinking and this culminated in his being charged with the following offence: "That he as a male person, on or about the 27th day of February, A.D. 1976, at or near Frobisher Bay in the North­west Territories did indecently assault N A , a female person contrary " to Section 149 of the Criminal Code." In his evidence he indicated that he recalled a number of matters prior to this alleged incident but because of drunk.-̂ n­ness he did not recall any of the details concerning the alleged offence. The accused was released on bail with respect to the N A Charge. A preliminary hearing was held and the accused was personally present so that he heard the particulars of the alleged assault on N A whose birthday was statt: f. to be Februar" 13, 1971. After the preliminary hearing the accused went to work at Strathcona Sound. He worked there for ^

, . _ 5 ­seven weeks and returned to Frobisher Bay around the end of April 1976. On May 7, 19 76 the accused recalls drinking on the af­ternoon of that date. He recalls going to a bar and also a club where liquor is sold. However, he does not recall any of the events concerning E J . H e recalls waking up in jail. The accused in his evidence stated that after the first incident involving N A he didn't have a deep conviction I

that he shouldn't drink. However after the E J incident he realizes that he shouldn't drink. In this particular case I have already mentioned that Dr. Atcheson gave evidence on behalf of the accused. His evidence was given in detail and as I understand it there are no real differences of opinion between him and Dr.' McKay who also gave evidence on be­half of the accused. In view of the importance of this evidence I arranged to have it transcribed with copies being furnished to both Counsel. I should add that Dr. Atcheson gave his evidence in a very fair and frank manner with a view to assisting the Court in dealing with this matter. It should be observed that Dr. Atcheson has wide experience in the field of psychiatry and has had the opportunity to work with the Inuit in the Eastern Arctic. Dr. Atcheson in dealing with the background of the ac­cused stated as follov.'s:

- 6 -Could you teil us what you have ob­served after looking at all those report and considering the offence charged; what are your findings with respect to the accused?

Well, on examination of the accused he was a very cooperative young man of 27 years, I believe. He pro­vided me in a very articulate manner and excellent English with his life history, the history of his develop-ment, and this information corres­ponded very accurately with the data that had been provided to Doctor MacKay.

Without reviewing that in depth, the point to me, or, I would make the point that in his early develop­mental years he suffered from tuber-culosis, and he has been at the Sanatorium in Hamilton, Ontario and, in fact, English became his first language. He returned to his people speaking English, and perhaps not too articulate at that point in his native tongue, and I comment on that because, in fact, it indicates one of the difficulties in the life de­velopment of an individual who has been removed from his early environ­ment and comes back speaking another basic language. There is a period of accomraodating to the new security you have with your j-amxxy, anu I think this explains some of the Personality characteristics of this gentleman, and I comment on it for that purpose.

It was my opinion that he was an extremely intelligent man, and that not only had he mastered his own native tongue very fluently, but the concepts he used and the vocabulary he used, in my opinion, would justify a clinical opinion that he is cf above-norral intelli-

genes, J: r £̂ nc e ; r -.na- . j - ^ . intelligence. He presented no ^

- 7 -"unusual mental content as he shared with me his feelings. There was no evidence that he has ever suffered from any form of serious mental disorder. There is, however, evidence that -THE COURT: Q. If I may just Interrupt, when you are using the term "no serious mental disorder" are you using it in the context of a psychiatrist's view of mental disorder? A. I am using it in the concept of Psychiatric mental disorder, where he has difficulty in identifying reality and may experience false perceptions and hallucinations that may operate in delusional thinking or false beliefs, beliefs that are not based on rational truths. He has not shown that type of disorder at any time. MR. KNOLL: Q. Please .continue. A. In terms of personality, he admits to me that he has always been a questioning person, and I think this relates back to the depri­vation in his early years, to try and.identify with the new culture, really his own; that he always questioned authority, but that this questioning seemed to be more on the level of intellectualism, looking for value Systems, rather than being the type of aggressive behaviour and disorder that one sometimes sees in children and adolescents. He described to me his educational process, and his further education in Churchill.

- 8 -The next factor perhaps that is of marked significance is that in terms of his sexual development, it commenced to be a heterosexual behaviour, and by that I mean, obviously sexual intercourse, sexual relationships, sexual play with the opposite sex. There is no evidence that he has an in­terest in his own sex in that area. There is no Suggestion in the inquiry and in the material that showed that he had any sexual deviation. His relationships have been, as a rule, with his peer group, although occasionally when a young boy at the age of 10 or 11 he had sexual intercourse with the opposite sex who would be several years older. That is the only discrepancy in this age or peer group relationship sexually, and I think one has to assess this in the light of the cultural dif­ferences in this area. I make this point because, in my opinion, one of the issues that is going to concern the court is the question of deviation or dangerousness in terms of a deviant sexual problem. Are you suggesting that in this culture his sexual experiences at an early age are not uncommon or are not abnormal? I would not think that would be uncommon. In cur culture in the south we are follov;ing a different life style and a different Com­munity of living and perhaps sometimes a false prudishness about such issues." With respect to the accused's use of alcohol Dr. Atchison had this to sav:

- 9 -In terms of his habits in the use of alcohol, which again seemed to be a significant issue, he had been drinking from a fairly early age periodically, gradually with some increasing intensity. He had ex­perienced periods when he had con­sumed enough alcohol to become unconscious or to pass out, and periods when he had been drinking in which he would have lapses of memory. This again is not un­common in someone who drinks ex-cessively, that there will be periods of an unusual fragmented type of memory, where there are periods in the course of the drinking that the blood alcohol affects the brain and where it is not registering intake. It is seeing and doing and behaving but very often not registering the fact of any permanent memory storage. Would these times have been in the late '60s or the last couple of years that he had been talking about or did he indicate the number of occasions it happened? He indicated a number of oc­casions to me. One occasion, for example, was because it resulted in his hospitalization in Ottawa Civic Hospital witri a very se­vere head injury. I believe, if my notes serve me, it v/as 197 3, in December of 197 3, that while intoxicated he had taken a car. He claimed that he could not remember this. I think this Claim could not be debated be­cause of the subsequent events. • The loss of memory was related to the alcohol, as I explained it will become obvious it is a true bill of amnesia at that point.

- 10 -" The car was wrecked by his con­dition and his inability to drive. He was taken to Ottawa Civic Hos-pital, and the records from there indicate a serious head injury. It was called a concussion. It could be identified, the areasof the brain that were concussed or bruised by the blow that he had received, and they were - one was the frontal region of the brain, the cortex on the right side, and the other was the temporal area, the area in this part of the brain. Q. That is the left side? A. On the left side. This would be suggestive of a very intensive blow to the head in which there had not only been direct damage here because of the blow but also what is called a contra coup ef-fect, the pressure being trans­mitted through the fluid in the brain and.bouncing off the other side of the brain, and I think it is important that there is an injury noted on two sides simply to identify the intensity of that blow and the contra coup effect, or eise there were two blows, and that is not likely. Would that blow have affected the other side of the head that had not been Struck? It would be my opinion that would be likely. As a result of this he v;as described as being in a State of coma, and some coma for approximately four weeks, perhaps a little better. It is obvious that the clinical findings did not merit surgery at that time, but it does indicr there v;as a diffuse dâ uer''" an '1 y-^y n '••' ' :••: th:Ln the sbul.l tbar vauld causa this. There v;as then as a result ^

- 11 -•• of this what is called a retro­grade amnesia, that is, a period preceding the accident, preceding the event itself, which had been knocked out from his memory. This is common in head injuries. It tends to improve somewhat, but there was a lapse of probably a week to ten days as far as we can determine or his memory will now permit us to determine prior to the accident itself which is lost. As he ably put it, 'I thought it was 1974 and there only nine months in the year." It was again an inter­esting abstraction to make. Following this head injury - he had prior that been employed at the I.T.C. in Ottawa. He had been given a task that was a difficult one of producing a newspaper for the Organi-zation. The task orientation, that capacity after the accident was de-stroyed. He was not capable of this any more because of the memory loss and his condition, and he returned to Frobisher Bay. THE COURT: Q. Prior to this accident where he re­ceived the head injury, is there any history of memory lapses from ex­cessive use of liquor? A. Yes, he told me there were occasions ­and that is the only evidence I have to go on - when he v/ould have what is commonly called alcoholic black-outs. Q. And how far back did these alcoholic black-outs go as far as you were able to ascertain? A. I would think that they go back pro­bably ten years.

Q. 'vhen hi '/a; 'ounq or a voun c s r 3 r , A. Yes.

- 1 2 - • On the question of alcohol amnesia and behaviour while drinking, Dr. Atcheson stated as follows: "Q. Would it be fair to say then that once you were saying that perhaps at the time that this offence is alleged to have occurred that he was suffering from alcoholic amnesia?

A. I believe he does not remember, yes. Q. What about at the time itself that the offence is alleged to have taken place; can you teil us your opinion as to whether he would be acting con­sciously or automatically?

A. I would have to describe it as a State of impaired consciousness. It has not perhaps reached the point of total auto-matism. There are periods of behaviour that appear more relevant than others. He has no fragments of that memory that I can discover.

THE COURT: Q. When you use the term "impaired con-sciousness", you mean, impaired by alcohol?

A. Yes. M P •P'MOT T . ' Would that impaired consciousness also be as a consequence of the brain in-jury?

I find it very hard to make a direct relationship between the two. It is rather with the sexual relationship, more drinking because of the problem that the brain injury created. The question of whether or not he is more orone to resoond to the lower levels alcohol becau: of the brain in­n tb-?. re.:' :s fror, th^ ?.lb3r-Koso: I t::cre :-' no substan lal brain abnorraality in the electro­encephalogram with measured doses

- 13 --V. " of alcohol, so really I do not comment beyond an Impression.

Q. Doctor MacKay in the evidence given on October 2 7th that is in that transcript suggested to the court that his condition at the time was a combination of the alcohol intake and the brain injury; would you agree with that? A. There has been work which Doctor MacKay indicated in his report, following World War 2, of trauma and injuries to the brain, which are very common, that the toler­ance level of alcohol is less in certain types of brain injury. For example, there was a concern when this yoiung man was released from the Ottawa Hospital that he might have epileptic seizures. Now, it proved that he did not have, but the prediction that he might under these conditions and injuries was such that he was placed back in the Community on an anti-convulsant drug. There is a degree of predictability re­lated to brain injury. If epi­lepsy had appeared as a result of this injury, fits, he would very likely precipitate them by alcohol. Individuais with seizures from brain injuries will find that drinking is absolutely to be ab­stained from because it will in­crease the potential. In that sense I think that is the sort of theory which indicates the relationship between brain injury and alcoholic intake which is measurable because you have a fit. It is most difficult to measure with the way you think or how you behave. Feelings and acting-out behaviour is much more difficult, and I think that is the

- 14 -' reason that one does not have a good scientific design. We would like to have a research design of the evidence in the way of testing Intention under these conditions, in the way we can test other func-tions, but this intent is very nebulous. Q. Would it be proper to say then that this brain injury would be a con­tributing factor to whatever is being done or his condition. A. I believe that to be true., Q. Can you give us the relative weight ­there are two contributing factors and one is the alcohol and one is the brain injury; is it possible to give weights to the final conse-quences? A. The only logic I could apply is that he drank excessively p rrior to the auto­mobile accident. and the concussion. It may be that that ex'3 essiv(= drinking was one of the reasons that the ac­cident occurred but, in fact, there was no evidence to sub stantiate this type of behaviour, act inq out, that is alleged, so I think one miqht say there has been another variable, that a different pattern of behaviour emanates from this man when he drinks. (fRe unde'rlin'rng Ts mineVl In dealing with the term impaired consciousness Dr. Atcheson had this to say: "Q. The term you used was impaired con-sciousness. To what extent would his consciousness have been impaired; is this a complete impairment? Would he have been at all conscious of what he was doing?

- 15 -"A. It is very hypothetical. When you observe a person through that pro­cess of drinking to that blood level and putting them in that type of Situation, it is very hard to re­spond to that. From having observed many people with an alcohol problem, the problem of memory with alcohol, it is my opinion - and I use the word •^fragmented", it is disjointed - it is that there are several little pieces of what is happening to you you can recall but since it does not fit together in any one thing, it tends to be meaningless. If one has that feeling and they feel they have behaved very badly under the influ­ence of alcohol, and state they cannot remember it, it is a very painful State­ment for them, and they can recall little pieces of it, and the Suggestion can be, since you can recall that why cannot you recall that one? It may be a type of selection that the brain is able to achieve, but it seems to me it is a random phasing out of the impaired frag­mented memory, and since it does not all join in one piece, it is dismissed as, "I cannot remember it." I cannot speak beyond that without watching a person through a sequence of Observation. Q. At the time this offence or alleged of­fence would have been committed, can you give us an opinion as to whether he would or not nave known what he was doing? I think the question is based - when did the loss of memory, if it is a true bill, occur? "Did you know what you were doing?" and afterwards the blood level was re­ceived and it was a horrendous thing to do and he would repress it in the brain, what he did, and would forget before or after the fact. I have a feeling that the loss or fragmented memory and the impaired level of consciousness preceded the act and ••;as a part cf the process cf the act, but to '.-.'hat dec'ree and ho;,- cor;-