R. v. Stewart, 2016 NWTSC 68 S-1-CR-2015-000112 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - v - ANDREW CHARLES PETER STEWART _________________________________________________________ Transcript of the Reasons for Judgement delivered by The Honourable Justice A.M. Mahar, sitting in Inuvik, in the Northwest Territories, on the 1st day of September, 2016. _________________________________________________________
APPEARANCES: Ms. W. Miller: Counsel for the Crown Mr. M. Martin: Counsel for the Accused (Charges under s. 271 of the Criminal Code of Canada) No i n f o r m a t i o n s h a l l be p u b l i s h e d in any d o c u m e n t or b r o a d c a s t or t r a n s m i t t e d in any way w h i c h c o u l d i d e n t i f y the v i c t i m or a w i t n e s s in t h e s e p r o c e e d i n g s p u r s u a n t to s . 486 . 4 of the C r i m i n a l Code of C a n a d a
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1 THE COURT: Andrew Stewart is facing a 2 single count of sexual assault. It is alleged 3 that on the 21st of September, 2014, at or near 4 the Hamlet of Fort McPherson in the Northwest 5 Territories that he sexual assaulted E.F. 6 7 In terms of jurisdiction, date on the 8 indictment, there are no issues. They are not 9 contested, and the evidence is clearly made out. 10 It is also clear that Andrew Stewart is, in fact, 11 the person named in the indictment. To that 12 extent, his identity is made out as well; 13 however, identity is the primary issue in this 14 case. That was clearly stated by the defence. 15 The issue is whether or not the Crown has 16 proven, beyond a reasonable doubt, Andrew 17 Stewart's identity as the perpetrator of this 18 offence. I will go into more detail on this 19 later. But the facts of the 271, the sexual 20 assault, were not challenged in any way. The 21 issue is who did it. Specifically, has the Crown 22 proven, beyond a reasonable doubt, that Andrew 23 Stewart was the perpetrator, given the issues 24 raised by the defence with respect to credibility 25 and reliability. 26 The evidence: 27 We heard from one of the investigating A.C.E. Reporting Services Inc. 2
1 officers, Constable Ryan Jewett. After receiving 2 a call from the complainant, he attended at the 3 complainant's residence late in the evening of 4 the 21st of September, 2014. He testified that 5 the complainant was under the influence of 6 alcohol and that she was "worked up", using his 7 words. I heard no evidence, however, of gross 8 intoxication. He had dealt with her, as well, on 9 September the 20th, and yet he testified that he 10 took a statement formally from her three days 11 later because there were concerns with taking the 12 statement when she had been consuming alcohol. 13 And then for the next three days, he either could 14 not find her or she was under the influence. He 15 noted no new injuries to the complainant. 16 An Statement of Agreed Facts was filed: The 17 complainant was taken to the nursing station 18 where a sexual assault kit was done. Various 19 samples were sent out for analysis. Both a 20 vaginal swab and her underwear were positive for 21 male DNA. That DNA was tested against the 22 accused and was found not to be his DNA. 23 The Crown also called the complainant, E.F. 24 She is 33 years old. She is from Fort 25 McPherson. She had been in a relationship for 26 about six years, and she has two small children: 27 One, 5; and the other, 9 months old. A.C.E. Reporting Services Inc. 3
1 Prior to the incident, she had been friends 2 with the accused for approximately six years. 3 They became friends after the accused's brother 4 passed away. They were good friends. They hung 5 out together often. And, in the days leading up 6 to this incident, it was suggested that they had 7 very frequent contact, if not daily. 8 On the day of the incident, the complainant 9 was drinking with Jayden and CaMisha Charlie. 10 Jayden came over with CaMisha with a "40-ouncer" 11 of vodka, and they consumed it between the three 12 of them. They were watching TV while this was 13 occurring. 14 At some point in the evening, E.F. 15 became tired and went to sleep on the couch. She 16 can only assume that Jayden and CaMisha left at 17 some point. Sometime between beginning to drink 18 and falling asleep, she received a phone call 19 from the accused. 20 In her testimony in chief, she indicated 21 that he wanted to know "what was going on", and 22 she said she was trying to go to sleep. In 23 cross-examination, she acknowledged she was not 24 really sure what had been said, only that there 25 had been a phone call. 26 She indicated that she got pretty 27 intoxicated before she went to sleep. Her A.C.E. Reporting Services Inc. 4
1 clothes were on, and the TV was on. When she 2 woke up, the house was dark, and someone was on 3 top of her having sexual intercourse. Her pants 4 and her panties were around her ankles. She 5 said, "What are you doing?" The person said, 6 "It's okay." She said, "It's not okay." She 7 pushed him in the chest, and he stopped 8 immediately. 9 She recognized the voice as that of her good 10 friend, Andrew Stewart. The kitchen light is 11 close beside the end of the couch. We saw this 12 in the photographs that were presented by the 13 Crown attorney. She got up and turned the 14 kitchen light on. She saw the accused. She 15 indicated, "I just saw Andrew." She then looked 16 through the house to see if she could find Jayden 17 and CaMisha. A person followed her saying "Just 18 don't make the call" a number of times. He was 19 in the residence for about two or three minutes, 20 and then he left through the main door. 21 She testified that when she turned the light 22 on, she saw the accused on the couch and that he 23 was wearing a black jacket and faded black jeans. 24 She indicated, as well, that the amount of time 25 that had elapsed from waking up and becoming 26 aware of the intercourse until it ended was less 27 than half a minute. She testified that she did A.C.E. Reporting Services Inc. 5
1 not want to have sex with the accused. She never 2 agreed to it and never discussed it. 3 In terms of what he was wearing, she 4 testified that "I know his pants were off." She 5 was asked if she saw him put his pants back on, 6 and she testified, "No." 7 She was cross-examined at some length. 8 Defence counsel raised a number of 9 inconsistencies during the course of the 10 cross-examination, which I must consider. These 11 questions were asked and these answers were 12 given: 13 Q When you woke up, and after you 14 say these things happened to you, you checked the doors to see if 15 they were locked; correct? A Yes. 16 Q And that door that's not usually used by people, that was locked on 17 that occasion; correct? A Yes. 18 Q And what about the other door? Was that door locked, or was it 19 unlocked? A When I got up, I wasn't sure if it 20 was locked or unlocked. Q So you're not sure whether it was 21 locked or unlocked? A Yeah. 22 23 Defence counsel has suggested that this lack 24 of certainty is something I should take into 25 account in assessing the credibility and 26 reliability of the complainant. With respect to 27 this particular passage, I have some difficulty A.C.E. Reporting Services Inc. 6
1 with that suggestion. What she said was, "When I 2 got up, I wasn't sure if it was locked or 3 unlocked." And how would she know if the front 4 door was locked or unlocked when she woke up to 5 somebody having sexual intercourse with her? 6 I do not put a lot of weight on that lack of 7 certainty. She was sure that the back door was 8 locked because she checked it afterwards. She 9 would not be sure whether or not the front door 10 was locked because, at the point in time when she 11 checked it, the accused had already departed 12 through it. 13 Now, again, as indicated in examination in 14 chief, the complainant testified that not only 15 had she talked to the accused on the phone but 16 that she was able to give us at least a rough 17 outline of what the conversation was about. In 18 cross-examination, she agreed that while she 19 knows she talked to the accused on the phone, she 20 knows he called, she is not sure what time it 21 was. She gave us a time of roughly 5:30 to 6 22 o'clock in examination in chief, and she was not 23 sure what they had talked about. She indicated 24 it was a regular thing for him to be calling. 25 She was cross-examined, as well, about the 26 amount of alcohol that she had consumed. She 27 made reference to a "26-ouncer" of rum, which she A.C.E. Reporting Services Inc. 7
1 initially indicated had been consumed the night 2 before. On cross-examination, she was not 3 entirely sure whether it had been consumed the 4 night before. It might have been consumed 5 afterward. 6 There was some difficulty with respect to 7 cross-examination about whether or not she had 8 mentioned a case of beer. The mentioning of the 9 case of beer came out of the notes of the police 10 officer and would have been part of the initial 11 investigation when she was still under the 12 influence. For the purposes of my analysis, I am 13 going to assume that, at that point in time, she 14 mentioned beer, and, at no other time, did she 15 ever suggest beer had been consumed. It is a 16 contradiction. 17 More specifically, in regards to 18 identification, defence counsel asked the 19 following questions and received the following 20 answers: 21 22 Q And when you got up to turn the light on, you just got a quick 23 look at the person; correct? A Yes. 24 Q And this person had no distinct facial marks that you can 25 remember; correct? A No. 26 Q You just said, No. Is that there were no distinct facial marks? Is 27 that fair to say? A Yes. A.C.E. Reporting Services Inc. 8
1 Q So there were no distinct facial marks? 2 A Yes. 3 4 She was also cross-examined about what he 5 was wearing. She testified in chief that he was 6 wearing a black jacket and faded black jeans and 7 indicated that she was not guessing that is what 8 he was wearing. 9 Mr. Martin was cross-examining her with 10 respect to her testimony at the preliminary 11 inquiry, and he was reading questions and 12 receiving answers: 13 Mr. Martin, the first question is: 14 15 Q Do you recall what this person was wearing in terms of clothing? 16 A Black jeans. A black jacket and faded black jeans. 17 Q You seem to go guessing on that. A Yeah. 18 Q Is that fair, that you're not sure what the person was wearing? 19 A Yeah, I'm not sure. 20 21 And she agreed that she had been asked those 22 questions and given those answers. She did not 23 adopt that lack of certainty. 24 There was also some questioning about 25 whether or not the person had facial hair. And 26 she indicated that, no, there was no facial hair. 27 The only time which I could find defence A.C.E. Reporting Services Inc. 9
1 counsel directly asked her about her ability to 2 observe the perpetrator is as follows: She was 3 questioned: 4 5 Q I put it to you that, at no point, did you see who this person was. 6
7 Her answer was: 8 9 A I saw this person after I turned the light on. 10
11 There was another issue that was raised in 12 response to her stating that she looked at the 13 accused, and this is in reference to her original 14 statement to the RCMP. 15 Mr. Martin gave her questions and answers: 16 17 Q Officer Jewett asked you the question: "Did you notice, was he 18 -- was there any marks or anything that you noticed?" 19 And the answer provided by you was: "No. I didn't even look at 20 him after he did that. Were you asked that question and 21 did you give that answer? 22 There was a bit of a conversation about what 23 that actually meant, but she did acknowledge that 24 she had given that answer. 25 There was another contradiction brought up 26 in terms of her call to the communications 27 centre. She apparently told the communications A.C.E. Reporting Services Inc. 10
1 centre when she first called that it had been a 2 couple of hours since the sexual assault. Her 3 testimony as that it was about half an hour. 4 This was clarified in re-examination where she 5 said that she knew it was about half an hour 6 because her phone had been allowed to run out of 7 power and she had to let it recharge, and the 8 charger always took at least 15 minutes. 9 In chief, she testified that she did not 10 know if the accused was drinking. It was pointed 11 out to her that in her statement she said that he 12 was kind of dizzy, like staggering. She adopted 13 this. She said, "Yes, when he was walking out, 14 yeah, when he left the house." 15 In her evidence, as I have already 16 indicated, she did not remember the accused 17 putting his pants on. It was pointed out to her 18 that in her statement she remembered him pulling 19 his pants on, and she agreed that her memory was 20 better then. 21 She was questioned again about the fact of 22 him not having facial hair, the perpetrator not 23 having facial hair at the time of. She said that 24 most of the time the accused has a goatee, but 25 sometimes he shaves it off. As I indicated, she 26 testified that he did not have any facial hair at 27 that time. Neither Officer Jewett nor the A.C.E. Reporting Services Inc. 11
1 complainant were ever asked if on or around that 2 time he was clean shaven or not. All we are left 3 with is the evidence that most of the time he has 4 a goatee, but sometimes he shaved it off. 5 Analysis: 6 The defence has chosen to call no evidence. 7 This is a fundamental right of the accused. The 8 burden is on the Crown to prove this case beyond 9 a reasonable doubt. This burden never shifts. 10 Defence has pointed out that there is no DNA 11 to link the accused to this crime. He also 12 suggested that intoxication, specifically the 13 intoxication of the complainant, should raise 14 concerns with respect to her reliability. Not 15 only was she intoxicated on the night in 16 question, but this night appears to have been 17 part of an ongoing stretch of time in which she 18 was intoxicated. She was intoxicated the night 19 before, and she was intoxicated over the next few 20 days when the police officer tried to take a 21 statement. Either that or he was not able to 22 find her. He suggested that her memory is 23 polluted by alcohol and time and that she is 24 filling in gaps, and this should cause me to be 25 very concerned about her evidence. 26 The complainant was not challenged in any 27 way on the issue of whether or not there was a A.C.E. Reporting Services Inc. 12
1 sexual assault. Her testimony on this issue was 2 clear, never wavered, and was without any 3 internal contradictions. I find that the Crown 4 has proven, beyond any reasonable doubt, that a 5 sexual assault took place. 6 The issue, the question, as indicated at the 7 beginning of this judgement, is whether the Crown 8 has proven that the accused is the person who 9 committed this sexual assault beyond a reasonable 10 doubt. 11 I found the complainant to be a very 12 credible witness. Her testimony was to the 13 point. She made no attempts to embellish or 14 shift the evidence to assist her position. She 15 was willing to quickly acknowledge any 16 contradictions. 17 With respect to the DNA, all it proves is 18 that the complainant had sexual contact with 19 someone else. There was no evidence before me 20 that the accused had ejaculated or the 21 perpetrator had ejaculated. In fact, this seems 22 unlikely on the evidence before me. 23 While a result identifying the accused would 24 have been powerful evidence for the Crown, the 25 lack of it in this case is essentially of little 26 probative value. 27 With respect to the contradictions, A.C.E. Reporting Services Inc. 13
1 generally, I find these contradictions minor, 2 given the passage of time and the intoxication of 3 the complainant at the time of the investigation. 4 Whether or not there was beer, the amount of time 5 that had lapsed before the call, the certainty 6 about the conversation, what he was wearing at 7 the time of, just how sure she was about that, 8 whether or not he was doing his pants up, these 9 sort of inconsistencies are to be expected from 10 witnesses, given the passage of time and given 11 the consumption of alcohol. 12 As to whether or not he was wearing a 13 goatee, the only evidence we have on this issue 14 is the complainant's, which was: Sometimes he 15 was, sometimes he was not. 16 Identification evidence has to be taken in 17 context. The complainant in this case has 18 identified a close, personal friend, someone with 19 whom she has regular contact face-to-face. She 20 indicated that she recognized his voice; and when 21 she turned the lights on, there he was. 22 Questions about distinguishing marks, not 23 noticing any marks, how much she looked at him 24 afterwards, have to be seen in this context. It 25 was never suggested to the complainant that she 26 might be mistaken about the identity of the 27 perpetrator. This is significant, although the A.C.E. Reporting Services Inc. 14
1 analysis still proceeds in the same way. 2 Identification evidence is often referred to 3 as particularly dangerous evidence, but this, as 4 well, has to be taken in context. That danger 5 increases with distance and with a lack of 6 familiarity. Identifying somebody who is well 7 known to you, in the same room with you for more 8 than three minutes, both by voice and visually, 9 is not dangerous evidence. In fact, it is 10 extremely compelling evidence. She recognized 11 his voice; she saw him when she turned on the 12 light. He followed her around the house for 13 about three minutes, and then he left. 14 When she said she did not look at him 15 because of what he had done, that has to be taken 16 in context as well. She did not want to look at 17 the accused. She clearly recognized him. She 18 was never shaken on that. There was no 19 suggestion that she was unsure about who this 20 was. 21 Questions with respect to distinguishing 22 marks, again, have to be taken in that context. 23 What is she supposed to make of those questions 24 when she has already identified somebody who is 25 well known to her, somebody who she had ample 26 opportunity to identify. When somebody asks if 27 there were any distinguishing marks, what does A.C.E. Reporting Services Inc. 15
1 that mean? Essentially, in this context, it is 2 almost meaningless. 3 In conclusion, I am satisfied, beyond any 4 reasonable doubt, that the complainant has 5 accurately identified her assailant, and find I 6 Andrew Stewart guilty as charged. 7 8 ----------------------------------------------------- 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
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1 2 3 4 CERTIFICATE OF TRANSCRIPT 5 6 I, the undersigned, hereby certify that the 7 foregoing pages are a complete and accurate 8 transcript of the proceedings taken down by me in 9 shorthand and transcribed from my shorthand notes 10 to the best of my skill and ability. 11 Dated at the City of Edmonton, Province of 12 Alberta, this 17th day of January, 2017. 13 14 Certified Pursuant to Rule 723 15 of the Rules of Court 16
18 __________________________ 19 Jenna Mearns, CSR(A) 20 Court Reporter 21 22 23 24 25 26 27
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