R. V. T.W.L., 2017 NWTSC 19 S-1-CR-2016-000052 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - v - T. W. L. _________________________________________________________ Transcript of the Reasons for Judgment held before The Honourable Justice A.M. Mahar, sitting in Inuvik, in the Northwest Territories, on the 9th day of February, 2017. _________________________________________________________
APPEARANCES: Mr. A. Godfrey: Counsel for the Crown Mr. P. Harte: Counsel for the Accused
(Charges under s.271, s.349(1), 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 of Canada This transcript has been altered to protect the identity of the witnesses, victim, or young person pursuant to the direction of the presiding Justice
1 THE COURT: There has been a trial this 2 week. T. W. L. is charged with three Criminal 3 Code offences. Two sexual assaults and one 4 unlawfully in a dwelling. 5 On November the 4th into the 5th, 2015, 6 there was a small party at T. L.'s residence in 7 Sachs Harbour in the Northwest Territories. 8 There were approximately half a dozen people 9 involved. These included the two complainants 10 L. K. and K. L.; their cousin and friend, M. L.; 11 the accused; T. L.; and J. K. A large amount of 12 vodka was consumed and everybody became highly 13 intoxicated. 14 The Crown called several witnesses. L. K. 15 is now 19 years old which would have made her 16 approximately 17 or 18 at the time of the events. 17 Her recollection of the party is that she went 18 there around 10 p.m. and stayed a couple of 19 hours. She believed that she was drinking before 20 she went, but in any event, she was consuming 21 straight vodka with chasers and any number of 22 cups somewhere around five in total. She became 23 very drunk. 24 She returned to her residence -- actually, 25 her aunt and uncle's residence. The residence of 26 Y. and L. C.'s which was next door to T. L.'s 27 residence. She was there with M. L. She went to
1 sleep or passed out on the mattress on the floor 2 in the living room along with M. L. She came to 3 or woke up and she saw the accused at the foot of 4 the bed. He was trying to climb on M. L. M. L. 5 kicked him off and came over to her. She said 6 nothing; did nothing. As he was touching her 7 leg, she blacked out. She recalls him touching 8 her and sex commencing when she blacked out 9 again. She woke up in the morning. 10 In the morning, she went to the nursing 11 station. The nursing station contacted the RCMP, 12 the sex assault kit was done. A vaginal swab was 13 positive for semen, and after a DNA warrant was 14 executed on the accused, the semen was determined 15 to be his. Her testimony was that he was not 16 invited to that house. She had simply left him 17 at the party. When she was asked if it was 18 possible that she invited the accused to have sex 19 with her instead of M. L., her answer was that 20 she did not remember saying that. 21 I am going to go slightly out of order 22 because it makes more sense in terms of the 23 evidence. M. L. also testified. With some minor 24 deviations, she testified to the same party, same 25 level of intoxication, and she and L. K. ended up 26 back at Y. and L. C.'s place passing out on the 27 bed in the living room. Her recollection is that
1 she came to. The accused was bothering her, on 2 top of her, and she remembers L. K. telling the 3 accused to basically do it to her instead, 4 inviting the accused to have sex with her is my 5 understanding of the words that were used. 6 She believes that L. K. had locked the door, 7 she did not see the accused come in, she woke up 8 around 9 o'clock in the morning, nobody was 9 there, and she later spoke to the RCMP. She came 10 back and spoke to the RCMP again a few days after 11 that. Her specific testimony about the comment 12 L. K. made to the accused was "L. K. told him to 13 do that to her instead of me." 14 J. M. K. was called. He was the only sober 15 witness apart from the RCMP officers that we 16 heard from. Sober at the time of the events, to 17 be clear. He is now 21 years old. He works as a 18 swamper for the hamlet. His cousin K. L. 19 contacted him on Facebook and asked him to keep 20 her company on that night. When he arrived at 21 T. L.'s place, J. K. was passed out. K. L. took 22 J. K. to the room. He stayed for about 90 23 minutes. When he left, he basically put K. L. to 24 bed in her room. 25 My understanding was that it was a different 26 room from the room that J. K. was in. He locked 27 the door to her room and left, and then he went
1 back to check on L. K. and M. L. It was around 2 2 o'clock in the morning when he arrived at the 3 T. L. residence. It was approximately 3:30 in 4 the morning when he attended at Y. and L. C.'s 5 residence to check on L. K. and M. L. He could 6 not hear anything. So his understanding was that 7 they were asleep. He checked the doors. The 8 side door was already locked. He locked the 9 front door and left. 10 K. L. testified. She had a very difficult 11 time with her testimony and was clearly very 12 upset. As I indicated before, all the parties 13 were heavily intoxicated. She appears to have 14 been especially so. She is not sure where she 15 went to sleep. She is not sure not only of what 16 room but in what residence. She remembers coming 17 to at some point, somebody getting on top of her, 18 pulling her pants down, and having sex with her. 19 She testified during the trial that she said no. 20 It became clear in cross-examination that she 21 originally believed this person to be J. K. 22 In her statement to the police, she 23 indicated that J. K. was bothering her, and J. K. 24 followed her into the room. She was asked what 25 woke her up, she indicated that J. K. did, doing 26 what, and she said pulling my pants down. She 27 agreed under cross-examination that when she told
1 the police that it was J. K., she was pretty sure 2 it was him. The RCMP asked her at the time if it 3 could have been the accused, she indicated no, 4 but it was possible if he was awake. 5 I take her evidence to be or I find from her 6 evidence that she was originally quite sure that 7 it was J. K., and it was likely only later when 8 she realized the results of the DNA testing that 9 she came to the conclusion that it was the 10 accused. Some of the accused DNA was found on 11 the inside of her underwear. There was no 12 indication if the DNA was semen, saliva, or what 13 it was, but it was simply that it was his DNA. 14 On the basis of this evidence, I am asked to 15 convict the accused. One of the interesting 16 aspects of K. L.'s evidence is that she recalls 17 the accused going back and forth to the other 18 house, the house next door. 19 With respect to the complainant L. K., I 20 found her to be a credible but utterly unreliable 21 witness. Her level of intoxication was such that 22 I am unable to make any firm conclusions based on 23 her recollection of events. Given the testimony 24 of M. L., which indicated an invitation to sexual 25 contact, in the context of this completely 26 unreliable evidence, the only conclusion that I 27 can come to is that the accused and L. K. had
1 sex. In terms of whether or not this sex was 2 consensual, I am simply not sure. On that basis, 3 I must acquit the accused. 4 With respect to the sexual assault on K. L., 5 while I have my suspicions, which I have with all 6 of these offences, K. L. as well was a credible 7 and unreliable witness. Her level of 8 intoxication if anything was greater than that of 9 the other witnesses. Her ability to recall 10 events on anything approaching either a 11 chronological order or even locational 12 specificity is lacking. I am unable to conclude 13 where things happened, what exactly happened, and 14 given the need for proof beyond a reasonable 15 doubt, I find that I have a reasonable doubt. 16 I will be more specific about what concerns 17 me: It is tempting to speculate because of the 18 DNA evidence that the events and actions that she 19 originally attributed to J. K. were committed by 20 the accused, but given that four days or more 21 passed before her clothing was turned into the 22 RCMP and given that she placed herself in her 23 evidence in a location where the accused DNA 24 would have been found, at least in one version of 25 where she might have fallen asleep, I have 26 doubts. 27 I also have doubts based on her level of
1 intoxication of what may or may not have occurred 2 during one or many blackouts. I simply have no 3 way of being sure how the accused's DNA ended up 4 on her underwear, and as such, I must give him 5 the benefit of that doubt and find him not 6 guilty. 7 When an accused is facing several charges on 8 the same indictment, the trier of fact must be 9 careful not to conflate the charges, not to allow 10 the suspicions that arise on one charge to have 11 an impact on the proof required of the Crown 12 attorney on the other charges. I have already 13 indicated that I am highly suspicious of T. L.'s 14 activities that night. 15 With respect to the unlawfully in a 16 dwelling, there is no indication in the evidence 17 that T. L. was ever invited over to that 18 residence. He was, however, a former resident of 19 that home, and I was troubled by K. L.'s comment 20 that he was going back and forth between the two 21 residences. I was originally planning to convict 22 T. L. on this charge, but, Mr. Harte, giving 23 credit to where it is due, you did change my mind 24 in your submissions this morning. I am simply 25 not sure when the events at Y. and L. C.'s took 26 place. If they took place before J. K. locked 27 the doors or after, and if they took place before
1 given the lack of specific recollection available 2 to any of these witnesses and given T. L.'s prior 3 connection to that home in any event, I find it 4 very difficult to come to a conclusion with the 5 degree of certainty that I am required to in 6 order to enter a conviction. 7 I have to remember that all of these people 8 before this event were friends who were in 9 regular contact with each other and could be 10 expected to attend at each other's residences. 11 Accordingly, I reluctantly find T. L. not guilty 12 of that charge as well. I will say this though, 13 T. L., I am not finding you innocent. If I was 14 deciding this case on the balance of 15 probabilities, I would be finding you guilty on 16 all three charges, and you would be going away 17 for a long time. That is what I think happened, 18 but I am not sure. 19 What I am going to do is this: I am going 20 to use my common law jurisdiction to direct that 21 you enter into a peace bond for a period of two 22 years, with a nominal amount of $1,000, no cash 23 deposit, but I will tell you that if you break 24 this peace bond, you are in breach of a court 25 order, and you can be brought back and dealt 26 with. So it's serious. You are to have no 27 contact directly or indirectly with the three
1 woman who testified here today, K. L., M. L., and 2 L. K. You are to have no contact directly or 3 indirectly. What that means is no texting, no 4 phoning, no messaging. If you see them at a 5 residence, you leave. Do you understand that? 6 THE ACCUSED: I understand, Your Honour. 7 THE COURT: Okay. Once you have signed 8 that peace bond, you will be free to go. 9 Anything, counsel? 10 MR. GODFREY: No, Sir. 11 MR. HARTE: No, Sir. Thank you. 12 THE COURT: Mr. Godfrey. 13 MR. GODFREY: No questions about that, Your 14 Honour. I do want to if I could assist the Court 15 with respect to J. K, I think you referred to him 16 with an incorrect last name. His last name is 17 actually K. 18 THE COURT: My apologies. Let the record 19 reflect K. Thank you. We will close court. 20 (ADJOURNMENT) 21 THE COURT: A couple of things I forgot, 22 T. L. I do not want you to have to wait around 23 to sign the order. You can sign that order 24 tomorrow. We will have that available here at 25 the courthouse. I think that although I have 26 misnamed J. K. it should be anonymized in the 27 transcript of when it is ordered. He was never
1 charged with a criminal offence, and I do not 2 want -- I do not think it is fair to him to have 3 his name out there. Any comment about that from 4 either one of you? 5 MR. GODFREY: That's fine. 6 THE COURT: I do reserve the option of 7 editing the transcript beyond simply grammatical 8 errors if necessary, I do reserve the right to do 9 that. So I just wanted to let you all know that. 10 Is there anything else that I forgot that you 11 want to deal with at this point? 12 MR. HARTE: My friend and I were chatting, 13 Sir, about the correcting -- ironically, the 14 correcting of J. K.'s name. And perhaps I've 15 spoken to several people about a lesson to be 16 taken from this series of events, and so I'd urge 17 Your Honour to consider anonymizing everybody's 18 name who needs to be anonymized in the transcript 19 so that it actually is something that people's 20 attention could be drawn to in terms of the 21 trouble that can arise from these kinds of 22 events. I'm just putting that out there for your 23 consideration, Sir. 24 THE COURT: And what do you say? 25 MR. GODFREY: I'm fine with that, Your 26 Honour. 27 THE COURT: Well, given T. L.'s close
1 connection to the parties involved as long as the 2 Crown attorney has no difficulty with the 3 anonymizing of his name, I am prepared to do that 4 given that his relationship with these people is 5 going to be obvious once the -- if the record is 6 read, then everybody in Sachs Harbour would know 7 who is being referred to as the complainants. So 8 I think on that basis, it might be necessary to 9 anonymize T. L.'s name as well. 10 MR. GODFREY: I don't have any difficulty 11 with that. 12 THE COURT: I'll just order that when a 13 transcript is prepared, that all the names be 14 anonymized. 15 All right. Anything else? 16 MR. GODFREY: Just on the expiration of the 17 bail period is to return any exhibits and order 18 that all exhibits will be returned. 19 THE COURT: All exhibits will be returned 20 at the conclusion of the bail period. 21 MR. GODFREY: Thank you. 22 THE COURT: Thank you. We will close 23 court. 24 ----------------------------------------------------- 25 26 27
1 CERTIFICATE OF TRANSCRIPT 2 3 I, the undersigned, hereby certify that the 4 foregoing pages are a complete and accurate 5 transcript of the proceedings taken down by me in 6 shorthand and transcribed from my shorthand notes 7 to the best of my skill and ability. 8 Dated at the City of Edmonton, Province of 9 Alberta, this 9th day of March, 2017. 10 11 12 13 __________________________ 14 Karilee Mankow 15 Court Reporter 16 17 18 19 20 21 22 23 24 25 26 27