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Abstract: Transcript of the Reasons for Judgment
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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 ---------------------------------------- Charge under s. 271 Criminal Code of Canada Publication ban on the identity of the complainant pursuant to s. 486 of the Criminal Code Official Court Reporters 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, Official Court Reporters 1 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 Official Court Reporters 2 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 Official Court Reporters 3 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 Official Court Reporters 4 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. Official Court Reporters 5 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 Official Court Reporters 6 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. 25 ------------------------------------- 26 27 Official Court Reporters 7 1 Certified to be a true and accurate transcript pursuant 2 to Rules 723 and 724 of the Supreme Court Rules, 3 4 5 6 ____________________________ 7 Lois Hewitt, CSR(A), RPR, CRR Court Reporter 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Official Court Reporters 8
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