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Abstract: Transcript of the Reasons for Judgment
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R. v. Yakeleya, 2010 NWTSC 04 S-1-CR-2009-000001 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - v - NORMAN YAKELEYA __________________________________________________________ Transcript of the Reasons for Judgment delivered by The Honourable Justice A. Germain, sitting in Norman Wells, in the Northwest Territories, on the 20th day of January, A.D. 2010. __________________________________________________________ APPEARANCES: Ms. J. Walsh: Counsel for the Crown Mr. A. Pringle: Counsel for the Accused (Charge under s. 271 of the Criminal Code of Canada) BAN ON PUBLICATION OF COMPLAINANT/WITNESS PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE Official Court Reporters 1 THE COURT: Thank you, ladies and 2 gentlemen. Welcome. Please be seated. 3 Good morning, Counsel. Are there any 4 preliminary applications or motions before we go 5 further today? 6 MS. WALSH: Not from the Crown. 7 MR. PRINGLE: No, sir. 8 THE COURT: Thank you very much. 9 In this particular judgment, ladies and 10 gentlemen, I am going to read off of my computer 11 screen. It was difficult to get anything printed 12 out. So, because of that, if my comments appear 13 somewhat disjointed or fractured as my technology 14 tries to keep up with my voice, I do apologize in 15 advance. 16 Mr. Yakeleya stands charged with a single 17 count under Section 271 of the Criminal Code. He 18 is charged that between March 15th, 2007 and 19 March 31st, 2007, he committed a sexual assault 20 on the complainant. Although a range of dates is 21 set out in the Indictment, it should be made 22 clear that the complainant alleges a single act 23 of sexual assault. The range is required because 24 the complainant is not able to pinpoint with 25 certainty when the specific incident is said to 26 have taken place. 27 The incident is said to have happened during Official Court Reporters 1 1 a period of time when the complainant was living 2 in the community of Tulita with relatives of the 3 accused. At the time of the trial, the 4 complainant still remains under 18 years of age, 5 and was 13 years old when the offence is said to 6 have been committed. 7 As a result, the trial commenced with a 8 mandatory publication ban on any information that 9 would tend to reveal the name of the complainant. 10 That ban remains in effect, and continues in 11 effect, even after the conclusion of this trial. 12 There were seven witnesses called in this 13 case. Four by the Crown: the complainant, her 14 mother, and two close friends of the complainant. 15 Three witnesses were called by the defence, 16 including the accused, who, although not obliged 17 to, elected to take the witness stand and give 18 evidence on his own behalf, plus one of his 19 brothers and one of his sisters. 20 It is useful in any case involving an 21 individual charged with a criminal offence that 22 some of the first principles be reviewed as a 23 starting point. 24 The accused is presumed to be innocent. He 25 entered this courtroom presumed to be innocent, 26 and that presumption of innocence was to his 27 benefit through the entire course of the trial, Official Court Reporters 2 1 all of the evidence led, and continues to exist 2 unless he is today convicted by me. Further, 3 this presumption must not be lightly set aside as 4 the Crown must prove the guilt of the accused 5 beyond a reasonable doubt. The accused does not 6 need to prove his innocence. 7 I have considered all of the evidence that I 8 heard through this two-day trial, although I will 9 only mention some of the evidence in the reasons 10 that follow. 11 I have also listened carefully to the 12 argument of both the Crown attorney and the 13 defence which were so ably presented and so 14 fairly presented by competent, highly qualified 15 legal counsel. 16 A brief summary of each theory is 17 appropriate, and because the Crown has the burden 18 in this case, I will start with the Crown 19 summary. 20 The Crown says that the accused sexually 21 assaulted the complainant by coming into her 22 bedroom at night when she and the accused were 23 alone in the home of Danny Yakeleya, the brother 24 of the accused. There, he placed his hand on her 25 vagina. Self-evident in the Crown's argument is 26 that touching a 13-year-old female's vagina with 27 a hand in the circumstances of this case is a Official Court Reporters 3 1 sexual assault. Thus the Crown asserts that if I 2 satisfy myself beyond a reasonable doubt that the 3 accused is guilty of the conduct complained of by 4 the complainant, he should be convicted. 5 The Crown says that the complainant's 6 evidence was not discredited, that 7 inconsistencies on collateral or peripheral 8 issues and items should be carefully considered 9 and possibly ignored in the case of a young 10 complainant and, overall, I should find the 11 complainant credible, although obviously 12 embarrassed, confused, and apprehensive going 13 through this trial process. 14 The Crown's view of the evidence of the 15 accused is that it is suspect and suggests that I 16 should reject his evidence as self-serving and 17 motivated by personal interest. The Crown 18 further observes that although corroboration is 19 not required, the observable emotional state of 20 the complainant in the days following the 21 incident add credibility to the complainant's 22 version. The Crown also, correctly, in my view, 23 reminds the Court that it would be an error of 24 law for me to conclude that any delay by the 25 young complainant in taking this matter further 26 beyond venting with her closest friends weakens 27 her credibility. Official Court Reporters 4 1 The defence, on the other hand, says that 2 the under oath denial by his client coupled with 3 the complainant's inaccuracies, inconsistencies, 4 memory gaps, and potential exaggeration on other 5 evidence necessitate a ruling that the Crown has 6 not proven the case to the required standard. 7 The background facts of how the accused and 8 the complainant came to be alone together in the 9 home of the accused's brother are not greatly in 10 dispute. I therefore propose to go back in time 11 to the fall of 2006. At that time, the 12 complainant, ready to start Grade 8, left her 13 home in Fort McPherson and went to Tulita where 14 she began living with the elderly mother of the 15 accused and the common-law husband of that woman. 16 Evidentiary conflict begins almost 17 immediately because the complainant and her 18 mother say that it was because the accused's 19 mother asked her to come and live with her in 20 Tulita. The accused and his sister have a 21 different take on this. Their view is that there 22 was perhaps some structural issue in the home of 23 the complainant in Fort McPherson and it was the 24 complainant herself that begged to come to the 25 community of Tulita. 26 This issue alone is not particularly 27 important but may take on significance as it may Official Court Reporters 5 1 go to credibility; but, more importantly, it may 2 raise a suggested inference about how strongly 3 the complainant wanted to stay in Tulita and what 4 she might do to achieve that goal. 5 On this point, the explanation of the 6 accused and his sister seemed to ring truer to me 7 than the explanation of the complainant and her 8 mother. It is clear that the complainant wanted 9 badly to get out of Fort McPherson. Therefore, 10 the likelihood that it was she who was asking to 11 go rather than the mother of the accused asking 12 her to come seems more plausible. Despite the 13 closeness of the aboriginal community and the 14 fact that they will often take in family members, 15 the accused's mother had raised her nine children 16 and was elderly. Taking in a teenage child in 17 Grade 8 seems to be a job you might accept but 18 not one that you would go looking for. 19 Thus, around the start of the school year in 20 2006, the complainant travelled from her home to 21 live with the accused's mother, the woman 22 identified as Auntie Laura, in Tulita. 23 Unhappy times soon struck the Yakeleya 24 family as the family matriarch, Laura, died in 25 January 2007. That left the complainant living 26 with a 70-year-old man, and some of the Yakeleya 27 family decided that was inappropriate. One gets Official Court Reporters 6 1 the impression that a bit of a family struggle 2 developed as to where the young complainant 3 should live after Laura died. It seems most 4 agreed that living with a 70-year-old male was 5 not the right answer and some family members 6 appeared to be pressing the young complainant to 7 go back to her mother in Fort McPherson. The 8 complainant did not want to go back as she had 9 formed attachments and friends in Tulita. 10 For a short time she moved around from a 11 friend's home to the home of Mrs. Powder. After 12 some time, the brother of the accused, Danny 13 Yakeleya, agreed to take the complainant, perhaps 14 for the rest of the school year. However, there 15 was a period of time in late March 2007 when 16 Danny Yakeleya would be out of the country, and, 17 during that period of time, I accept the evidence 18 of all of the witnesses who spoke about it that 19 the complainant was not to be in Danny Yakeleya's 20 home unless she was with one of her cousins. In 21 short, Danny Yakeleya did not want a 13-year-old 22 girl living in his home with no adult supervision 23 or other supervision. That is a common sense 24 proposition and I accept it. The complainant 25 thus began living with other friends or other 26 relatives. 27 Gary Yakeleya lives next door to Dan; and Official Court Reporters 7 1 while there one evening, the complainant 2 indicates that she saw lights on at Danny's home, 3 and without telling anybody, she went to 4 investigate. She got there and let herself in 5 using a hidden key. She found nobody home, but 6 she decided to stay anyway, contrary to the 7 specific instructions from Danny Yakeleya. 8 Frankly, I find this element of her evidence 9 incredible and unbelievable. That she, a young 10 girl of 13 years of age, would take it upon 11 herself to investigate something irregular which 12 could imply a break-in or other wrongdoing going 13 on in the home and without even telling adults, 14 thus putting herself in harm's way, reflects such 15 a lack of self-care and self-responsibility that 16 that portion of her evidence must be rejected. 17 What I think really happened is that the 18 complainant was feeling a bit out of sorts camped 19 out with other relatives, and perhaps they were a 20 bit of out of sorts having her in their homes. 21 The evidence of Mr. Gary Yakeleya also puts the 22 idea of the witness observing the television 23 lights on in the home in some doubt because of 24 the geographic layout of the two homes. 25 The complainant intentionally went over to 26 Danny Yakeleya's home, contrary to his direct 27 order, and the story about going over to Official Court Reporters 8 1 investigate the lights was, in my view, contrived 2 to justify going over there. Since the 3 complainant stayed in the home after determining 4 no one was there lends support to the theory that 5 this element of her evidence is likely a 6 fabrication. 7 It is the case, however, that a judge can 8 accept some, all, or none of a witness's 9 evidence, and my determination that she is 10 probably incorrect or intentionally wrong on that 11 point does not automatically mean that she was 12 not sexually assaulted. 13 That is the background by which this young 14 girl comes to be alone at the home of the brother 15 of the accused. 16 I now turn to the other element and that is: 17 How did the accused come to be in the home? 18 The accused gave evidence which I accept 19 that he had a tough three days leading up to the 20 Sunday night that he was at his brother's home. 21 He did not have an exclusive residence in the 22 community of Tulita as he spent only 23 approximately 25 percent of his time there as the 24 MLA for the Sahtu constituency, which includes 25 Tulita, Norman Wells, and other communities. The 26 constituency encompasses a large geographic 27 region with difficulty in access. Official Court Reporters 9 1 He was in the area on constituency business, 2 having driven approximately 17 hours from 3 Yellowknife to Tulita earlier in the week, and 4 then went to a conference in another community. 5 When the conference ended on Sunday, he returned 6 to Tulita, intending to stay at brother Danny's 7 house. He reached and was ready to enter Danny's 8 house around midnight on Sunday. He indicates 9 that he was tired, hungry, and because he has 10 Type 2 diabetes, which causes mood swings, he was 11 also irritable. He entered his brother's home at 12 a time which put him and the complainant alone in 13 the home late at night. 14 From this point forward, the version that 15 each gives is significantly different. Let me 16 deal first with the complainant. 17 She said she was in bed, heard someone at 18 the door, went downstairs and saw Norman 19 Yakeleya. She cannot remember much about what 20 they talked about, but, ultimately, went back to 21 bed. 22 She indicated that she was lying on her back 23 when the accused came in, laid down beside her, 24 put one arm under her neck, the other on her 25 stomach, and then moved that hand from the 26 stomach down to where his fingers touched her 27 vagina through her clothes. At that point, there Official Court Reporters 10 1 was a brief conversation where she says he asked 2 if she was afraid, and although she was, she said 3 no, but turned to the wall, breaking hand 4 contact, and, after a couple of minutes, the 5 accused left. The complainant indicates that she 6 then fell asleep and slept into the afternoon the 7 next day, missing school, and that the accused 8 was gone when she woke up. 9 The accused gives evidence on his own behalf 10 and he emphatically denies that he was in the 11 complainant's bedroom or that he touched her in 12 the way described or in any way. He indicates 13 that he was angry and loud when he entered the 14 home, triggered by annoyance of getting in, and 15 he found the complainant there unsupervised in 16 the home. He say an argument ensued but that 17 finally he relented and agreed that she could 18 stay but she had to go to school in the morning. 19 At that point, she gave him what he describes as 20 an uncomfortable hug and went to bed, while he 21 got some bedding from his brother's bedroom and 22 went to bed on the couch out of respect for his 23 brother. 24 The accused says that he fell asleep and he 25 did not see the complainant when he left the home 26 the next morning. 27 It is clear that after the complainant woke Official Court Reporters 11 1 up in the late afternoon of the next day, she 2 went to the house of her friend Karen and 3 described some incident. Her description of the 4 incident to Karen is different than her evidence 5 in court in at least one particular. To Karen 6 she reported that she had fallen asleep and was 7 woken up by the accused touching her. In court 8 she indicates that she was never asleep and 9 observed the accused come in and touch her in the 10 manner she described. 11 Of interest is that Ms. Karen Iliopoulos 12 described the complainant as confused and upset. 13 The complainant's other friend, Ms. Amber Powder, 14 also observed the complainant to be upset. The 15 complainant's mother, Ms. Shirley Stewart, also 16 found the complainant changed and withdrawn when 17 she returned home to Fort McPherson. 18 As one would expect in a small community, 19 this allegation soon got around and it did not 20 sit well with either the accused or his family. 21 The accused is said to have called the 22 complainant and told her to tell the truth and to 23 tell her mother she had been lying about the 24 incident. 25 The calls both between the accused and the 26 complainant and the complainant's mother and the 27 accused are both admitted but with a different Official Court Reporters 12 1 spin put on them. The complainant implies that 2 she was being asked to lie by changing her story, 3 while the accused says she was asked to stop 4 lying and change her story to the truth. 5 The accused in this case is a public figure 6 with a lengthy background of community service 7 both in aboriginal and territorial politics in 8 the Northwest Territories. According to him, he 9 fought his personal demons of alcohol consumption 10 and his experience led to a career as a 11 counsellor as well as his political successes. 12 It is neither unreasonable nor unexpected, 13 although potentially dangerous, for someone to 14 contact a person who they assert is defaming them 15 and ask them to come clean. Such calls that were 16 made between the accused and the complainant did 17 not constitute or lead me to believe that the 18 accused was expressing elements of a guilty 19 conscience or confession, but are more consistent 20 with the indignant, practical reality that people 21 will be more quick to believe something bad about 22 a person than something good. 23 The complainant obviously believes strongly 24 that she was sexually assaulted, because although 25 it is obvious that giving evidence against a well 26 known public figure could not have been a 27 pleasant experience, she pursued her assertion, Official Court Reporters 13 1 ultimately swore to tell the truth before me, and 2 indicated unequivocally in evidence in this open 3 court that this individual on trial intentionally 4 touched her vagina. 5 As I mentioned earlier, contact of an 6 individual's fingers with a 13-year-old's vagina 7 in circumstances as these does constitute a 8 sexual assault. 9 The Crown rests their case on the 10 credibility of the complainant coupled with the 11 observable upset and confusion of the complainant 12 as mirrored to her friends. 13 It is no longer the law in Canada that an 14 early complaint or a consistently repeated one 15 adds to the proof or assists in credibility, nor 16 does a delay or failure to complain expeditiously 17 lead to a lack of credibility. There was no 18 suggestion by the Crown that the early complaint 19 bolsters the complainant's evidence and no 20 suggestion by defence that the delay in going to 21 the RCMP weakens it. Those antiquated and 22 historic concepts have no business in the 23 Canadian courts. 24 Learned defence counsel, however, questioned 25 on these earlier statements to show 26 inconsistencies, and inconsistencies have always 27 been of concern to the courts. Official Court Reporters 14 1 Inconsistency in an immaterial detail is 2 often simply the product of a poor or unfocused 3 memory with the unusual elements of an incident 4 more likely to be remembered than the more usual 5 elements. Further, children even as old as 13 6 years of age often have a poor perception of 7 time, distance, and chronology and less retention 8 of immaterial details. 9 The cross-examination by defence solely went 10 to the issue of inconsistent statement. It 11 supports the thesis of the defence that the 12 complainant is not at all sure about what, if 13 anything, happened and is variable or 14 inconsistent on critical as well as peripheral 15 details. It is also clear the complainant was 16 upset, but that upset is argued to point just as 17 easily to her upset at being scolded or becoming 18 at risk of leaving the community of Tulita as to 19 having been sexually assaulted. 20 The issue for me is not whether I believe 21 the complainant. Her statement about being 22 touched in an inappropriate way sounds credible 23 and could possibly be true. Were I to convict 24 the accused on that basis, I would be making an 25 error of law because the test is whether the 26 Crown has proven the case beyond a reasonable 27 doubt. Official Court Reporters 15 1 It is useful at this time for me to remind 2 myself publically about a well known case from 3 the Supreme Court of Canada. This case, 4 officially styled in the law books, is referred 5 to as R. v. W.D. Initials there are used also 6 because of privacy concerns similar to those that 7 I articulated here earlier. The lawyers, due to 8 their experience, skill, and capability, simply 9 refer to this case as the W.D. case. The public 10 sometimes thinks we are talking about a hardware 11 lubricant, but the W.D. case is a very important 12 structural part of our criminal evidence in 13 Canada. And why it is a very important part is 14 that the courts, the Supreme Court of Canada, 15 wanted to re-emphasize that judges should not 16 inadvertently reverse the burden of proof when an 17 accused gives evidence on his behalf, 18 particularly when they may not believe the 19 evidence that the accused has given at trial. To 20 avoid that risk, a three-part test has been 21 formulated. The first prong of this test is that 22 if I believe the accused and he convinces me he 23 is not guilty, then it of course follows that the 24 Crown has not proved the case beyond a reasonable 25 doubt and the accused must be acquitted. There 26 is a middle ground where I may not believe 27 everything the accused has said, but his evidence Official Court Reporters 16 1 denying the assault at least raises a reasonable 2 doubt and, if so, I must give him the benefit of 3 that doubt. And, finally, if I do not believe 4 the accused and his evidence does not raise a 5 reasonable doubt, then I must still consider all 6 of the evidence which I heard and which I do 7 believe to determine if the Crown has proven 8 beyond a reasonable doubt the case against the 9 accused. In other words, I would go back and 10 view any shortcomings or credibility issues in 11 the witnesses to determine if the Crown has 12 proven the case beyond a reasonable doubt. 13 Let me say that some elements of the 14 evidence of the accused and the way he presented 15 it and the way he responded to some 16 cross-examination do give me cause for concern. 17 However, he did remain steadfast in his denial of 18 this sexual assault as alleged by the complainant 19 and it is not possible for me to conclude with 20 sufficient certainty that his denial should be 21 rejected. 22 There are two realities to this case. The 23 first reality is that only two people really know 24 what happened in that house that night. Although 25 I heard from both of them, the second reality is 26 that I can never really know for sure. I have 27 concluded, therefore, that this case falls in the Official Court Reporters 17 1 middle ground of the test formulated by the 2 Supreme Court of Canada where the accused's 3 evidence is sufficient to raise a reasonable 4 doubt. 5 Far too many people in today's society are 6 sexually assaulted. The complainant here tells 7 us that she was. Many others may harbour a 8 suspicion that she was, but suspicion cannot 9 displace my legal duty to convict the accused 10 only if I am satisfied beyond a reasonable doubt 11 of his guilt. 12 Mr. Yakeleya, will you please stand. 13 I find that the evidence against you does 14 not prove this case beyond a reasonable doubt, so 15 the charge against you is dismissed. You are 16 free to go. 17 THE ACCUSED: Thank you. 18 THE COURT: That concludes the case, 19 ladies and gentlemen. Would Madam Clerk call the 20 court to order, please. 21 THE COURT CLERK: All rise. This trial of the 22 Supreme Court is now closed. 23 ................................. 24 25 26 27 Official Court Reporters 18 1 2 3 Certified Pursuant to Rule 723 of the Rules of Court 4 5 6 Jane Romanowich, CSR(A), RPR 7 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 19
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