Supreme Court
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Decision information:
Abstract: Transcript of the Reasons for Judgment
Decision Content
R. v. Memogana, 2007 NWTSC 27
S-1-CR2006000029
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- vs. -
LESLIE MEMOGANA
_________________________________________________________
Transcript of the Reasons for Judgment by The Honourable
Justice J.E. Richard, at Yellowknife in the Northwest
Territories, on March 9th A.D., 2007.
_________________________________________________________
APPEARANCES:
Ms. S. Tkatch: Counsel for the Crown
Ms. K. Payne: Counsel for the Accused
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Charge under s. 271 Criminal Code of Canada
Publication ban on the identity of the complainant
pursuant to s. 486 of the Criminal Code
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1 THE COURT: In this case the accused is
2 charged with sexually assaulting the complainant
3 on June 18th, 2005 at his residence in Inuvik.
4 The complainant testified that on that occasion,
5 she went to the Mad Trapper bar in Inuvik around
6 midnight to have a few beers. There she
7 encountered the accused who was someone who she
8 had been friends with for a couple of months, the
9 two of them having worked at the same work site
10 at one time.
11 At the Mad Trapper bar, the accused invited
12 the complainant to go to his residence for more
13 beer and some marijuana, and the complainant
14 accepted. At his residence, the accused invited
15 the complainant to sit with him in his bedroom
16 while they drank a beer. The complainant says
17 that she was reluctant to do so but she did.
18 When the complainant decided to leave, she
19 says the accused would not let her leave, he
20 prevented her from opening the bedroom door, and
21 she says they struggled for some time by the door
22 as she tried to leave and the accused kept the
23 door closed and prevented her from leaving.
24 The complainant testified that the accused
25 then managed to get her onto the bed and started
26 taking her clothes off. She says that in
27 resisting him and trying to get him off of her,
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1 that she must have bit the accused's wrists
2 because she says that the accused got angry at
3 her, called her a "fucking bitch", and slapped
4 and punched her on the face. She says that the
5 accused then sexually assaulted her and in the
6 course of the attack he bit her breasts and also
7 bit her in the crotch area and that she screamed
8 because of the pain. She says the accused had
9 forcible sexual intercourse with her and that the
10 assault lasted 15 to 20 minutes. During the
11 course of the assault, she says she was screaming
12 and crying, that she was trying to get him off of
13 her, fighting him off and scratching him.
14 After the assault and after they were both
15 dressed, she says she heard some people arriving
16 at the accused's trailer and also that there was
17 a knock on the bedroom door and the accused's
18 roommate asked if things were okay. The
19 complainant says that because of what happened
20 and because of her condition, she did not want to
21 speak to anyone there so she left, or "snuck out"
22 as she said, by an outside door that was near the
23 bedroom door. As she left, she noticed that
24 among the people partying in the livingroom area
25 was her cousin Loretta Elias.
26 The complainant says she went back to the
27 place in Inuvik where she was staying at the
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1 time, at the apartment of a new boyfriend. She
2 says she arrived there at 1:30 or 2 in the
3 morning, that she decided not to wake her
4 boyfriend but she let him sleep until the
5 morning. She consumed part of a mickey of
6 alcohol and at 7 or 8 a.m. she told her boyfriend
7 what happened and then reported it to the police.
8 In her cross-examination, the complainant
9 did not resile from any of her testimony
10 regarding the sexual assault itself.
11 In the context of all of the evidence, I
12 find the complainant's testimony to be credible
13 on the essential aspect of this case; that is,
14 that she was subjected to forcible rough sexual
15 activity by the accused.
16 In weighing the believability or reliability
17 of her evidence, I have no concern about the fact
18 that she did not cry out when she realized that a
19 number of people arrived there for a party, nor
20 that she did not say anything to her cousin
21 Loretta. There is no normal expected behaviour
22 or reaction of someone who has just been sexually
23 assaulted or at least there is no evidence to
24 indicate that at this trial. In my view, and
25 given the circumstances of the event, the
26 complainant gave a reasonable, understandable
27 response when asked why she did not complain to
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1 or engage in conversation with these people who
2 arrived at the accused's trailer at 1 o'clock in
3 the morning.
4 Also, in weighing the believability or the
5 reliability of her testimony, I am not troubled
6 by the fact that she did at times use different
7 terminology or words in describing the extent or
8 level of her friendship with the accused prior to
9 this incident.
10 I turn to the evidence of the accused. In
11 its entirety, I find the testimony of the accused
12 to be problematic.
13 In his evidence-in-chief, he related a
14 narrative of a completely different evening spent
15 with this complainant. He spoke of drinking beer
16 at Frosty's Pub in Inuvik and then when he was in
17 the course of taking a cab home from Frosty's
18 Pub, he encountered the complainant and says that
19 either she invited herself into his cab or he
20 invited her to join him in the cab. He says they
21 went to his trailer and there they had a couple
22 of beers and a couple of joints of marijuana and
23 they had consensual sex. When asked if he bit
24 the complainant during sex, he answered "I don't
25 recall".
26 On cross-examination, the accused had
27 considerable difficulty explaining or expanding
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1 upon the narrative which he had given in his
2 testimony in-chief; his answers being "I don't
3 know", "I don't recall, "I don't think so" to
4 many questions which were quite straightforward.
5 When it was suggested to him that he may be
6 confusing this evening following a visit to
7 Frosty's Pub with another occasion when he met
8 this complainant at Mad Trapper and when asked if
9 it was possible he was confusing different
10 occasions, his answer was "I don't know" and "I
11 just don't recall".
12 When asked straightforward questions such as
13 "did she try to push you off", "did she tell you
14 to stop", "did she tell you no", "was she angry",
15 "was she crying", his answer was either "I don't
16 know" or "I don't remember" or "I don't think
17 so".
18 Taking the evidence of the accused as a
19 whole, my assessment is that he does not know
20 what transpired between he and the complainant on
21 June 18th, 2005 and that I cannot rely on any of
22 his testimony at this trial. The quality of his
23 evidence is not such as to be reliable. I do not
24 find anything reliable in the evidence of the
25 accused that raises any reasonable doubt about
26 the commission by him of a sexual assault upon
27 the complainant.
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1 On the complainant's evidence, I am
2 satisfied beyond a reasonable doubt that a sexual
3 assault occurred as related by the complainant
4 and accordingly I convict the accused of the
5 charge in the Indictment.
6 Now, counsel, with respect to sentencing, I
7 will hear from counsel but it would be my
8 preference that we not at least conclude the
9 sentencing hearing today but if we could find
10 some time next week, the Court's Monday is
11 already fully booked or overbooked.
12 THE ACCUSED: My God, it's -- I can't
13 believe this.
14 THE COURT: As I believe Tuesday is. What
15 about Wednesday or Thursday of next week?
16 MS. TKATCH: I can speak to my schedule,
17 Your Honour. I am tied up in a week-long
18 preliminary inquiry downstairs that I can't pass
19 on to somebody else. So my preference I guess in
20 that respect would either to be subsequent to
21 next week or if we could do submissions today and
22 I would be content to have another Crown receive
23 the decision on that if you require time on that.
24 I can say that my submissions are going to be
25 pretty short, there is not much to add with
26 respect to the sentencing submissions on the
27 Crown's side. I do appreciate that Ms. Payne has
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1 more work to do. It is just that next week is
2 not good for me personally and I won't have a
3 whole lot of time to prepare another Crown to be
4 in my stead.
5 THE COURT: Ms. Payne?
6 MS. PAYNE: Sir, I am available next week,
7 the following week as well. I'm sorry, the 19th
8 and 20th I will be out of town but for the
9 balance of the week I am in Yellowknife.
10 THE COURT: Okay, just before I turn back
11 to Ms. Tkatch, can you just confirm the next
12 week, the 22nd in particular, the Thursday is;
13 the 22nd in particular?
14 MS. PAYNE: Yes, sir, I am in town.
15 THE COURT: Is that okay with you, Ms.
16 Tkatch?
17 MS. TKATCH: I am available.
18 THE COURT: All right then, we will set it
19 for Thursday, March 22nd, at 10 a.m. for
20 sentencing Mr. Memogana.
21 MS. TKATCH: Thank you, sir.
22 MS. PAYNE: Thank you, Your Honour.
23 THE COURT: Thank you, we will close
24 Court.
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1 Certified to be a true and
accurate transcript pursuant
2 to Rules 723 and 724 of the
Supreme Court Rules,
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7 Lois Hewitt, CSR(A), RPR, CRR
Court Reporter
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