Supreme Court

R. v. Sikora, 2016 NWTSC 44 S-1-CR-2015-000070 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - v - SEAN CHRISTOPHER SIKORA __________________________________________________________ Transcript of the Reasons for Judgment delivered by The Honourable Justice A. M. Mahar, sitting in Yellowknife, in the Northwest Territories, on the 16th day of June, 2016. __________________________________________________________

APPEARANCES: Mr. M. Lecorre: Counsel for the Crown Mr. C. Davison: Counsel for the Accused

(Charge under s. 271 of the Criminal Code of Canada) No information shall be published in any document or broadcast or transmitted in any way which could identify the victim or a witness in these proceedings pursuant to s. 486.4 of the Criminal Code

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1 THE COURT: Sean Sikora is facing three 2 counts of sexual assault, on the same alleged 3 victim and within the same time frame. 4 There were only two witnesses in this trial, 5 the accused and his accuser. The evidence of 6 Ms. P., if found to be true beyond a 7 reasonable doubt by the Crown, describes two 8 non-consensual incidents -- or describes three 9 non-consensual incidents that would dictate a 10 finding of guilt on the three charges. 11 The evidence of Mr. Sikora describes two 12 consensual incidents and would lead to findings 13 of not guiltily. As has been clearly mandated by 14 the Supreme Court of Canada and through 15 innumerable appellate and superior court 16 decisions, there is a particular sort of analysis 17 that the trier of fact must go through when 18 dealing with this evidentiary situation, by a 19 term of art referred to as the W.(D.) analysis. 20 In brief, the analysis is as follows. The 21 Court begins by assessing the evidence of the 22 accused. If I believe him, then that is the end 23 of the matter and I must find him not guilty. If 24 I do not fully believe him, but his evidence 25 raises a reasonable doubt, then I must also find 26 him not guilty. If I reject his evidence, I must 27 still consider whether or not the rest of the

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1 evidence as presented by the Crown is sufficient 2 to prove his guilt beyond a reasonable doubt. 3 And, finally, if I am unsure what or who to 4 believe, then I must find him not guilty as well. 5 It has always struck me as odd that the last part 6 of the analysis is not found closer to the second 7 part, but there you have it. 8 In order to reject the evidence of an 9 accused person, the Court must be able to 10 articulate a reason for doing so. This has 11 sometimes been taken to suggest that all an 12 accused person needs to do to avoid conviction is 13 to testify in a way that is not obviously false 14 or internally incoherent. Even if the Court does 15 not fully believe the accused, his evidence would 16 at least have to raise a reasonable doubt. 17 This cannot be the process that the Court 18 goes through. The process must be more thorough 19 and subtle than that. To proceed otherwise would 20 ignore progress in the criminal law and take us 21 back to a time when corroboration was required 22 for any charge of a sexual nature. The analysis 23 cannot and must not begin and end with the 24 testimony of the accused. All of the evidence 25 must be considered first. This is the only way 26 in which a meaningful context for the 27 consideration of the evidence of the accused can

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1 be created. 2 Veronica P. gave the following 3 evidence, much of the surrounding circumstances 4 of which is agreed to by Mr. Sikora. She and 5 Mr. Sikora worked together at Domino's Pizza in 6 Yellowknife for several months. Their 7 relationship was casually friendly, though some 8 of the other co-workers would comment to her 9 about the two of them flirting. She had no 10 romantic interest in Mr. Sikora. She denied 11 flirting, sexual innuendo in their conversations, 12 and touching him on the arm while they were 13 talking. On one occasion, he gave her a ride 14 home. Nothing occurred during the ride, on which 15 they both agree. 16 Ms. P. described three incidents which 17 she says happened within a period of a few weeks, 18 all of which happened at night. The first 19 incident occurred behind the building. 20 Mr. Sikora pushed her against the wall and kissed 21 her briefly on the mouth. There was no warning 22 and no struggle. The second incident happened in 23 front of Domino's, to the side of the entrance. 24 She was, again, pushed against the wall and 25 kissed, this time for a couple of minutes, during 26 which time Mr. Sikora felt her breast under her 27 clothing. The kissing was on the lips with open

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1 mouth and she says she went along with it. The 2 third and final incident occurred behind the 3 building. She had just returned from a delivery 4 in her vehicle, had parked and was sitting in the 5 driver's seat when she saw Mr. Sikora's vehicle 6 pulling up. They were the only two vehicles 7 behind the building. She had been crying earlier 8 because, she says, she was afraid of something 9 happening. The tunnel to the front of the 10 building was right beside her car. Mr. Sikora 11 parked about 15 to 20 feet away and came over to 12 the driver's side of her vehicle. She remained 13 seated. He opened the door, spun her around to 14 face him, undid his pants, put both his hands on 15 the back of her head and pushed her mouth onto 16 his penis. He held on to her for five minutes, 17 holding her head and thrusting his hips until he 18 ejaculated. She pushed against his stomach three 19 times with her hand, but otherwise there was no 20 struggle. No words were spoken by either of 21 them. She testified that she was afraid, that 22 Mr. Sikora was intimidating because he was in the 23 military and that she had seen pictures on 24 Facebook of him with guns. She stated as well 25 that at no time during any of the three incidents 26 or before or after did he threaten or physically 27 force her in any way.

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1 She told a friend what had occurred. The 2 friend convinced her to tell her supervisor, 3 which she did, and Mr. Sikora was fired. The 4 following winter, she told her mother, who 5 contacted the police. 6 I make the following comments at this point. 7 Ms. P.'s description of these incidents 8 constitutes sexual assaults. Pushing her up 9 against the building and kissing her without any 10 warning, outside of a romantic context, is a 11 sexual assault. What she says occurred during 12 the final incident is a sexual assault as well. 13 There is no requirement that victims yell for 14 help, struggle, fight, or run away. People 15 engaging in sexual behaviour have to take 16 reasonable steps to make sure that their partners 17 consent to what is happening, and mere 18 acquiescence in not enough. There is no 19 indication, on Ms. P.'s evidence, of 20 Mr. Sikora even considering consent. 21 Mr. Sikora testified in his own defence. 22 His evidence was as follows. There were two 23 incidents, not three. He and Ms. P. became 24 friendly and then flirty at work. She would 25 touch his arm frequently when they spoke. He 26 would do the same. There were innuendoes made, 27 though he only recalled one specifically.

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1 Eventually, they found themselves outside of 2 Domino's, at the front of the store, talking. 3 They turned to face each other while they were 4 leaning against the wall, leaned in and kissed 5 for about 30 seconds. It was entirely mutual. 6 He agrees that he said something like "how long 7 have you been waiting for that" and that she made 8 an appreciative sound. 9 The second incident happened a few weeks 10 later. He came back to the store after a 11 delivery, parking behind the building because 12 there was no parking in front. Her car was also 13 parked behind the building. She was standing 14 beside her car. The cars were positioned as she 15 described in her evidence. They walked toward 16 each other and began kissing. She started 17 rubbing his crotch and he her breasts. She led 18 him over to her car, opened the door and sat down 19 facing out of the vehicle. He undid his pants, 20 took his penis out, and she performed fellatio on 21 him until he ejaculated. His hands were on top 22 of the car. After, she complained that he hadn't 23 warned her at the end and he apologized. She 24 asked him to get her keys from inside and he did. 25 Afterwards, things went on between them as they 26 had before. Some time later, he believes March, 27 he was fired for inappropriate behaviour. He

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1 became aware of the charges when he was arrested 2 at work the following November. 3 Both Ms. P. and Mr. Sikora were strong 4 witnesses. While a few minor inconsistencies 5 between their evidence at trial and previous 6 statements or testimony were brought out, they 7 were the sort of inconsistencies one would expect 8 given the passage of time and the frailties of 9 memory and I give them very limited weight. 10 Ms. P. in particular, given her young age 11 and level of education, was a surprisingly 12 impressive witness. She is clearly a highly 13 intelligent and capable person. 14 There were a few areas of what I will refer 15 to as logical dissonance in her evidence. I 16 found it odd that her co-workers would consider 17 these two people to be flirtatious with each 18 other while she maintains that there was nothing 19 of the sort happening. On a more problematic 20 note, I find her description of what occurred 21 during the final incident a bit hard to picture 22 in terms of how it would actually have played 23 out. If she was so worried about being alone 24 with Mr. Sikora, her lack of action when she saw 25 his vehicle pulling in behind the building is odd 26 given how easy it would have been for her to get 27 out of her car and walk through the tunnel to the

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1 front of the building. But life seldom follows a 2 logical path and there was nothing about her 3 narrative that I found insulting to common sense, 4 just a little troubling. The explanation could 5 simply be a combination of youth, fear and 6 indecision. 7 There were some difficulties with 8 Mr. Sikora's evidence too. While I can easily 9 understand why a married man would not have 10 wanted to socialize outside of work with a young 11 woman he was developing an interest in, I find it 12 strange that there was so little communication 13 between these two people as the situation 14 developed. As the Crown has pointed out, Where 15 are the text messages? Where are the phone 16 calls? Where are the long conversations? Why 17 aren't there any more rides together, even if she 18 was a driver by this point? There seems to have 19 been remarkably little mutual effort to get 20 together given what Mr. Sikora suggests was a 21 growing degree of mutual attraction. These 22 difficulties cause me some concern. On the other 23 hand, applying the same filter that I did to the 24 difficulties in Ms. P.'s evidence, I find 25 nothing ridiculous or insulting to common sense 26 about his evidence either. He was a candid 27 witness who took no advantage of many

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1 opportunities during his testimony to adopt 2 slightly more favourable details and positions. 3 Moving now to the formal analysis of the 4 evidence, the first question is, Do I believe the 5 evidence of the accused? The answer is no. This 6 would require, essentially, rejecting the strong 7 evidence of Ms. P., which I am not prepared 8 to do. "Believe" is a strong word. The next 9 question is, Does his evidence raise a reasonable 10 doubt? There is a fundamental difference between 11 saying that I believe Mr. Sikora and saying that 12 I find his evidence believable. 13 On the issue of whether or not there were 14 two or three incidents, I find the following. 15 Both Mr. Sikora and Ms. P. described more or 16 less the same kind and degree of physical 17 contact, only Ms. P. had the context spread 18 over three incidents while Mr. Sikora confined it 19 to two. Given the passage of time between the 20 incidents and disclosure and the statement of 21 both to the police and the limitations of memory 22 to which I have already referred, I can have no 23 certainty whatsoever as to how many occasions of 24 physical contact there actually were. Any 25 confusion flowing from this uncertainty must be 26 to the benefit of the accused. 27 The end result of the testimony I heard is

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1 that I have two believable narratives from two 2 credible witnesses that conflict with each other. 3 I simply do not know who to believe and therefore 4 the accused's evidence must have raised a 5 reasonable doubt. 6 I find Sean Sikora not guilty on all 7 charges. Close court. 8 ................................. 9 10 11 Certified Pursuant to Rule 723 of the Rules of Court 12

13 14 Jane Romanowich, CSR(A) 15 Court Reporter

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