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Abstract: Transcript of the Reasons for Judgment
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R. v. Akhiatak, 2014 NWTSC 01 S-1-CR-2012-000113 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - v - NOAH AKHIATAK Transcript of the Reasons for Judgment delivered by The Honourable Justice T. Ducharme, in Ulukhaktok, in the Northwest Territories, on the 27th day of November, 2013. APPEARANCES: Mr. K. Onyskevitch: Counsel on behalf of the Crown Mr. S. Petitpas: Counsel on behalf of the Accused ------------------------------------- Charge under s. 156 C.C. Ban on Publication of Complainant/Witness pursuant to Section 486.4 of the Criminal Code 1 R. v. Noah Akhiatak 2 November 27, 2013 - Ulukhaktok 3 Reasons for Judgment 4 5 6 THE COURT: Noah Akhiatak stands charged 7 that on or between May 1st, 1977, and May 31st, 8 1979, at or near the Hamlet of Ulukhaktok 9 (formally known as Holman) in the Northwest 10 Territories, being a male person, did commit 11 indecent assault on Danny Taptuna, another male 12 person, contrary to section 156 of the Criminal 13 Code. 14 15 GENERAL PRINCIPLES OF LAW 16 Prior to reviewing the evidence in this 17 trial, I wish to briefly outline some of the 18 fundamental principles of our criminal law that I 19 must apply in this case. 20 21 Burden on the Prosecutor 22 It is for the Crown to prove beyond a 23 reasonable doubt that the acts alleged occurred 24 and that Mr. Akhiatak committed them. Mr. 25 Akhiatak does not have to prove that the events 26 never happened. Mr. Akhiatak need not prove 27 anything. The issue in this case is narrow, that Official Court Reporters 1 1 is has the Crown proven beyond a reasonable doubt 2 that Mr. Akhiatak engaged in the indecent acts 3 described by Mr. Taptuna? 4 The phrase "beyond a reasonable doubt” is 5 not an ordinary expression. It is a term that 6 has been used for a very long time and is an 7 important part of our criminal justice system. A 8 reasonable doubt is not a far-fetched or 9 frivolous doubt. It is not a doubt based on 10 sympathy or prejudice. It is a doubt based on 11 reason and common sense. It is a doubt that 12 logically arises from the evidence, or the lack 13 of evidence. It is a doubt about an essential 14 element of the offences charged. 15 This standard is a formidable one. Proof 16 beyond a reasonable doubt is closer to absolute 17 certainty, rather than a balance of 18 probabilities: see R. v. Starr (2000), 147 19 C.C.C. (3d) 449 (S.C.C.) and R. v. Lifchus 20 (1997), 118 C.C.C. (3d) 1 (S.C.C). 21 22 Presumption of Innocence 23 The presumption of innocence means that Mr. 24 Akhiatak started this trial with a clean slate. 25 The presumption stays with him throughout the 26 case. It is only defeated if and when Crown 27 counsel satisfies the court beyond a reasonable Official Court Reporters 2 1 doubt that Mr. Akhiatak is guilty of the crimes 2 charged. The presumption of innocence also means 3 that Mr. Akhiatak did not have to testify, 4 present evidence or prove anything in this case. 5 In particular, Mr. Akhiatak does not have to 6 prove that he is innocent of these crimes. 7 8 Assessment of Evidence Generally 9 It is not proper, in a case such as this, 10 for a trial judge to simply decide whether or not 11 they believe the evidence of the complainant and, 12 on that basis, reach a conclusion of guilt beyond 13 a reasonable doubt. The totality of all of the 14 evidence must be examined in a cumulative way to 15 determine if there is a reasonable doubt 16 notwithstanding the apparent credibility of the 17 complainant: see R. v. Richardson (1992), 9 O.R. 18 (3d) 194 (C.A.); R. v. M.(P.) (1983), 31 C.R. 19 (3d) 311 (Ont. C.A.). 20 21 Review of the Evidence 22 The resolution of this case depends 23 primarily on the credibility of Mr. Taptuna and 24 of Mr. Akhiatak. The Court may believe all, none 25 or some of a witness' evidence. However, a 26 determination of guilt or innocence must not 27 devolve into a mere credibility contest between Official Court Reporters 3 1 two witnesses in a trial. Such an approach 2 erodes the operation of the presumption of 3 innocence and the assigned standard of persuasion 4 of proof beyond a reasonable doubt. Equally, it 5 must be acknowledged that mere disbelief of the 6 accused's evidence does not satisfy the burden of 7 persuasion on the Crown. This principle applies 8 to the testimony of the accused and the defence 9 evidence. The Court must be satisfied on the 10 totality of the evidence that there is no 11 reasonable doubt as to the accused's guilt. In 12 other words, in a criminal case it is 13 inappropriate to determine a verdict by asking 14 simply, "whom do I believe?" 15 In assessing the evidence, I must do so in a 16 global fashion, assessing the evidence 17 cumulatively and as a whole. Once I have done 18 that my deliberations should be guided by the 19 three step approach set out by Cory J. in R. v. 20 W.D. 21 Step One 22 If I believe Mr. Akhiatak's evidence that he 23 did not commit the offences charged, then I 24 must find him not guilty. 25 Step Two 26 Even if I do not believe Mr. Akhiatak's 27 evidence, if it leaves me with a reasonable Official Court Reporters 4 1 doubt about his guilt, or, about an 2 essential element of the offence charged, I 3 must find him not guilty of that offence. 4 Step Three 5 Even if Mr. Akhiatak's evidence does not 6 leave me with a reasonable doubt of his 7 guilt, or about an essential element of the 8 offence charged, I may convict him only if 9 the rest of the evidence that I do accept 10 proves his guilt beyond a reasonable doubt. 11 12 Significance of Demeanour 13 In assessing the credibility of witnesses it 14 is important for a trial judge to keep in mind 15 the caution of O'Halloran J.A in Faryna v. 16 Chorny, [1952] 2 D.L.R. 354 at p. 357 (B.C.C.A.), 17 “[t]he law does not clothe the trial Judge with a 18 divine insight into the hearts and minds of the 19 witnesses.” It is an error to make a credibility 20 determination based solely on the demeanour of a 21 witness. While the demeanour of a witness is a 22 factor that may be considered, it is only one 23 factor to be considered in the context of a 24 cumulative assessment of all the evidence. As 25 O'Halloran J.A stated in Faryna v. Chorny, supra, 26 at p. 357 (B.C.C.A.): 27 Official Court Reporters 5 1 The credibility of interested witnesses, particularly in cases of 2 conflict of evidence, cannot be gauged solely by the test of whether 3 the personal demeanour of the particular witness carried 4 conviction of the truth. The test must reasonably subject his story to 5 an examination of its consistency with the probabilities that surround 6 the currently existing conditions. In short, the real test of the truth 7 of the story of a witness in such a case must be its harmony with the 8 preponderance of the probabilities which a practical and informed 9 person would readily recognize as reasonable in that place and in 10 those conditions. [Emphasis added.] 11 12 Thus, while I can properly consider the 13 demeanour of any witness in assessing his or her 14 credibility, my assessment of his or her 15 credibility turns on a broader assessment of his 16 or her testimony. Whether it is consistent, 17 whether it makes sense or is inherently hard to 18 credit, and how it ties in to all of the evidence 19 in the case. 20 21 The Witnesses 22 The Crown's first witness was the complainant, 23 Danny Taptuna. Mr. Taptuna described three 24 separate occasions when Mr. Akhiatak forced him 25 to perform oral and anal sex. These incidents 26 occurred in Mr. Akhiatak's home in the master 27 bedroom and in another bedroom in the house. Official Court Reporters 6 1 There is no issue that these activities 2 constituted indecent assault. Rather the issue 3 is whether or not the Crown has proven them 4 beyond a reasonable doubt. 5 The Crown called three other witnesses: 6 David Omingmak, the complainant's father, Alice 7 Omingmak, the complainant's mother and Winnie 8 Akhiatak, the ex-wife of the accused. Ultimately 9 none of these witnesses assisted the Crown's 10 case. 11 David Omingmak testified in chief that Danny 12 Taptuna told him of the indecent acts back when 13 they occurred. However, in cross-examination, he 14 conceded that he told the police that Mr. Taptuna 15 told his mother, Alice Omingmak, about these acts 16 and that Mrs. Omingmak had in turn told him. 17 While Mr. Omingmak did not have an interpreter 18 during this statement he on more than one 19 occasion made it clear that Danny had not told 20 him of these allegations. Mr. Omingmak also 21 denied doing anything in response to this 22 information. In particular he did not go to look 23 for Mr. Akhiatak nor did he fight with Mr. 24 Akhiatak as described by Mr. Taptuna. 25 Alice Omingmak testified that Danny had not 26 complained to her about Noah back in the late 27 '70s. Rather she only heard of the allegations Official Court Reporters 7 1 “not very long ago”. She never told her husband, 2 David, about anything happening between Danny and 3 Noah. In short, she did not corroborate Mr. 4 Taptuna's claim that he had told her about one of 5 the incidents. 6 Winnie Akhiatak testified that she did not 7 remember anything that happened in the 70s. She 8 was unhappy and apparently had been beaten during 9 that time and it appears that she was blocking 10 out any memories of the relevant time. In 11 particular she testified that she did not 12 remember if anything happened between Mr. 13 Akhiatak and Danny Taptuna, if Mr. Akhiatak ever 14 touched Danny Taptuna or if Mr. Akhiatak had 15 yelled at Danny Taptuna. Thus it appears that 16 she does not either corroborate or contradict Mr. 17 Taptuna's claim that she had been present for the 18 three indecent acts. 19 The case for the defence starts with the 20 testimony of Mr. Akhiatak who denied any sexual 21 improprieties between himself and Mr. Taptuna. 22 Indeed, he claimed that he got along well with 23 Danny Taptuna up until 2010 when the current 24 charge was laid. He denied ever having had an 25 argument with Mr. Taptuna and indeed he could not 26 remember ever having an argument with anyone. 27 Official Court Reporters 8 1 The Case for the Crown 2 The Crown urges me to reject the evidence of 3 Mr. Akhiatak as incredible. In this regard, he 4 reminds me that I am to assess Mr. Akhiatak's 5 credibility in the context of all of the 6 evidence. He suggests that Mr. Taptuna was a 7 credible witness and that the contradictions in 8 his evidence do not essentially undermine his 9 evidence but rather are the sort of errors one 10 might expect from an adult who is testifying 11 about events that occurred many years previously 12 during his childhood. While the Crown concedes 13 the evidence of the other three witnesses he 14 called do not help the Crown, his position is 15 that they do not tend to undercut Mr. Taptuna's 16 evidence either. The Crown points out that Mr. 17 Taptuna has been consistent in his testimony 18 about the indecent acts and that his testimony in 19 this regard constitutes proof beyond a reasonable 20 doubt. 21 22 The Case for the Defence 23 The defence argues that I should believe Mr. 24 Akhiatak's denial of the allegations and acquit 25 him under the first branch of W.D. In the 26 alternative, even if I do not believe all of his 27 evidence, I should nonetheless be left with a Official Court Reporters 9 1 reasonable doubt about his guilt and acquit him 2 under the second branch of W.D. 3 Turning to the balance of the evidence, the 4 defence points to a number of contradictions 5 within the testimony of Mr. Taptuna and between 6 that testimony and the testimony of others which 7 make it clear that the version of events 8 recounted by Mr. Taptuna does not make sense and 9 demonstrate that he was being less than truthful 10 with the court. In considering these, I am 11 mindful of the comments of then Justice McLachlin 12 in R. v. W.R. [1992] 2 S.C.R. 122 at para 26: 13 In general, where an adult is 14 testifying as to events which occurred when she was a child, her 15 credibility should be assessed according to criteria applicable to 16 her as an adult witness. Yet with regard to her evidence pertaining to 17 events which occurred in childhood, the presence of inconsistencies, 18 particularly as to peripheral matters such as time and location, 19 should be considered in the context of the age of the witness at the 20 time of the events to which she is testifying. 21 [Emphasis added.] 22 23 Thus, I am not concerned about 24 inconsistencies in Mr. Taptuna's testimony and 25 previous statements with respect to the dates 26 when the matter occurred, the colour of toy cars 27 at the house, the colour of the shirt worn by Mr. Official Court Reporters 10 1 Akhiatak during the indecent acts, what was on 2 the walls in the rooms or even such details as 3 which arm Mr. Taptuna was grabbed by or which arm 4 Mr. Akhiatak used to grab him. 5 However, there are some aspects of Mr. 6 Taptuna's testimony that cause me concern. In 7 particular, I must consider the following points: 8 (1) The suggestion that it would be difficult to 9 believe that a child who had been abused by the 10 accused would return to his assailant's house on 11 two other subsequent occasions; 12 (2) The suggestion that it would be unusual that 13 Mr. Taptuna did not seek medical attention 14 especially given the stomach pain he experienced 15 after the anal sex; 16 (3) In examination-in-chief, Mr. Taptuna said 17 when he woke up on the third occasion Mr. 18 Akhiatak was on the floor. In cross-examination, 19 Mr. Taptuna agreed he had told the police that 20 when he woke up Mr. Akhiatak was on the floor and 21 then changed and said Mr. Akhiatak was passed out 22 on the bed; 23 (4) Mr. Taptuna testified that on the third 24 occasion he told his father and then saw his 25 father go out and fight with Mr. Akhiatak. Mr. 26 Taptuna agreed that he had earlier told the 27 police that his father had gone out to look for Official Court Reporters 11 1 Mr. Akhiatak but had not been able to find him. 2 Not only was Mr. Taptuna internally inconsistent 3 on this point but his testimony was contradicted 4 by his father, Mr. Omingmak, who testified that 5 he had not gone to look for Mr. Akhiatak nor had 6 he fought with him; 7 (5) Mr. Taptuna testified that he had told both 8 his mother and his father about these incidents. 9 His father gave inconsistent evidence in this 10 regard but clearly told the police he had not 11 been told anything by Mr. Taptuna directly. As 12 for Mrs. Omingmak she testified that Mr. Taptuna 13 never told her anything and that she had never 14 told her husband anything; and finally 15 (6) There is the testimony of Winnie Akhiatak 16 who has bad memories regarding being beaten but 17 does not remember anything nothing about Mr. 18 Akhiatak and Mr. Taptuna. 19 20 Analysis 21 When I consider Mr. Akhiatak's testimony I 22 note that it was quite short. Moreover as was 23 the case in Jaura, [2006] O.J. No. 4157 as his 24 testimony “constituted a general denial of the 25 core of the allegations, it necessarily lacked 26 detail, substance and the flavour that can 27 sometimes alternatively either support or Official Court Reporters 12 1 undermine believability.” I do reject Mr. 2 Akhiatak's facile suggestion that he did not 3 remember ever having an argument with anyone in 4 his life. However, viewed in isolation, I cannot 5 reject his evidence, particularly his denial of 6 any sexual impropriety, as untrue. 7 But I accept the Crown's submission that my 8 assessment of Mr. Akhiatak's credibility must be 9 done in the context of all of the evidence. I 10 found Mr. Taptuna's evidence about the indecent 11 acts to be consistent and he appeared to me to be 12 quite credible. I am not troubled by the fact 13 that as a child he returned to Mr. Akhiatak's 14 home after previously being abused by him. 15 Moreover I do not find it difficult to believe 16 that Mr. Taptuna did not seek medical attention 17 particularly given the fact that he lived in such 18 a remote community and had not reported anything 19 beyond a pain in his stomach. 20 But I am troubled by the fact that Mr. 21 Taptuna's testimony that he told his parents 22 about these incidents and the fact that he 23 claimed he saw his father fighting with Mr. 24 Akhiatak after the third incident are 25 contradicted by his parents. While these 26 contradictions do not relate directly to the 27 indecent acts they are so closely associated with Official Court Reporters 13 1 them that it causes me concern about Mr. 2 Taptuna's ultimate reliability as a witness. I 3 am also troubled by Winnie Akhiatak's inability 4 to remember any of the relevant events which 5 according to Mr. Taptuna she witnessed. 6 Thus, I would acquit Mr. Akhiatak under the 7 second branch of W.D. as his testimony, 8 considered in the context of all the evidence at 9 trial, does leave me with a reasonable doubt. In 10 the alternative, even if I went on to the third 11 branch of W.D., I would acquit Mr. Akhiatak 12 because I am not satisfied, for the reasons 13 outlined above, that the Crown has proven the 14 case beyond a reasonable doubt. 15 Stand up, Mr Akhiatak. 16 On the sole count of the indictment I find 17 you not guilty. 18 .............................. 19 20 Certified to be a true and accurate transcript pursuant 21 to Rule 723 and 724 of the Supreme Court Rules of Court. 22 23 ______________________________ 24 Annette Wright, RPR, CSR(A) Court Reporter 25 26 27 Official Court Reporters 14
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