Decision Content
R v Wrigley, 2018 NWTSC 67 S-1-CR-2017-000157
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
GEORGE WRIGLEY
_________________________________________________________ Transcript of the Reasons for Judgment delivered by The Honourable Justice A.M. Mahar, sitting in Yellowknife, in the Northwest Territories, on the 18th day of July, 2018.
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APPEARANCES:
Mr. A. Godfrey: Counsel for the Crown
Mr. E.V. McIntyre: Counsel for the Accused
(Charges under s. 271, 151 of the Criminal Code)
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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THE |
COURT: Are there any issues that |
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we need to deal with before I give my decision? |
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MR. |
GODFREY: Nothing from the Crown, |
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Sir. |
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MR. |
MCINTYRE: Nothing from the Defence, |
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Sir. |
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THE |
COURT: George Wrigley faces two |
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charges under the Criminal Code: Sexual assault |
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contrary to Section 271 and sexual touching under |
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Section 151. Both charges flow from the same |
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incident dating from June of 2017 in Tulita, |
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Northwest Territories. Identification, |
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jurisdiction and date were all admitted. |
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There are two issues: Consent and mistake |
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of age. The Crown called one witness, the |
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complainant CC. CC testified to a non-consensual |
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sexual assault. The accused testified to a |
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consensual sexual encounter. If I find the |
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accused guilty following a standard W.(D.) |
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analysis then that is the end of the matter. |
21 However, if I find that the Crown has not proven
22 his guilt on the substantive issue of consent
23 beyond a reasonable doubt I must then consider
24 the issue of age.
25 The accused was 21 years old in June
26 of 2017. The complainant was 15 and a half. By
27 law she is unable to consent being under 16 years
1 old. The accused's evidence was that he believed
2 her to be 18 at the time. If I find that the
3 Crown has proven beyond a reasonable doubt either
4 (1) that he did not have an honest belief that
5 her age was 16 or over or (2) that he did not
6 take all reasonable steps to determine her age,
7 then I must find him guilty.
8 CC gave the following evidence: In June
9 of 2017 she had been back in Tulita for
10 approximately two months, having lived the prior
11 four years in Calgary. On the night in question
12 she split a mickey of rum with a friend,
13 consuming at most half of it. She felt the
14 effects but wasn't drunk, this not being a large
15 amount of alcohol for her at that time.
16 She went first to the Youth Centre, then to
17 Blueberry Hill, then got dropped off at a park.
18 While behind the Youth Centre, she texted the
19 accused and asked him to bring her a drink, which
20 he did. She knew the accused liked her, and he
21 would try to communicate with her on Facebook
22 Messenger. She hung out for a while with her
23 friend CK who was 18 at the time. She stayed out
24 most of the night. She did not want to go home
25 because her grandparents, who she was staying
26 with, did not drink, and she did not want them to
27 know that she did.
1 She and CK ended up at LB's house, someone
2 they knew, at about 7:30 in the morning. The
3 accused was there with LB and his brother
4 Brandon. She went upstairs to LB's bedroom with
5 CK and George to go to sleep. There was one
6 double bed in the room. George left. She had on
7 underwear, a shirt and leggings. After falling
8 asleep, she came half awake and recalls feeling
9 someone touching her. When she came fully awake
10 she realized that someone was having sex with her
11 from behind while she lay on her side. Her
12 leggings and underwear were pushed down. She
13 moved away quickly and it stopped. She realized
14 it was George. She tried to wake CK up who was
15 lying on the other side of her but he was sound
16 asleep. She lay on her back and called a friend.
17 George was saying he was sorry. He asked her if
18 she wanted a cigarette, then left to go to the
19 store to get her some. She shoved CK awake and
20 told him what had happened and got him to walk
21 her home. She reported the incident to the
22 police the following day.
23 George Wrigley testified to the following on
24 the issue of consent. He had not had very much
25 contact with CC. He definitely knew who she was,
26 had a crush on her and reached out to her on
27 Facebook Messenger. He never expected her to be
1 interested in him. Most of the day and night in
2 question he had been home at his grandmother's
3 house playing video games. CC messaged him at
4 some point asking for something to drink. He
5 gave CC a bottle of ice tea behind the Youth
6 Centre somewhere between 1:00 and 2:00 in the
7 morning.
8 We should bear in mind that at that time of
9 the year in Tulita there is virtually 24 hours of
10 daylight, so the times that I make reference to
11 should not be taken out of context in that
12 regard.
13 She was there with CK. George went back
14 home and then texted CK, who was a friend of his,
15 at about 3:00 in the morning, a couple of hours
16 later. They walked around for a few hours, and
17 he found himself locked out of the house. He was
18 not drinking that night. He and CK wound up at
19 LB's house at about 5 or 6:00 in the morning. CC
20 showed up. She seemed high. They decided to go
21 to sleep. CC, CK and he went upstairs to LB's
22 room.
23 Initially when they fell asleep CC was at
24 the outside edge of the bed, CK was in the
25 middle, and George Wrigley was pressed up against
26 the wall. CK woke him up at some point and told
27 him to sleep downstairs which he attempted to do
1 sitting at the kitchen table. A short time after
2 that, CK came downstairs and told him he could
3 come back up. This time CK slept on the edge, CC
4 on her side in the middle and George took the
5 same spot against the wall. He says he woke up
6 when he felt CC pressing against him essentially
7 in a spooning position with him facing her. She
8 took his hand and held it putting it on her
9 waist. She said "Do you want to do it?" He was
10 surprised. He liked her a lot but did not think
11 she would like him. They started kissing for
12 about five or six minutes. He reached around and
13 put his finger inside her. He asked her if she
14 was sure. She rolled over on her back and lifted
15 her hips. He pulled her pants and underwear
16 down. She rolled back over on her side, and they
17 started having sex.
18 A very short time later, 20 or 30 seconds,
19 she told him to stop, and he did. His feelings
20 were hurt. He asked her if she was okay. She
21 seemed emotionally hurt. He said he was sorry.
22 He asked her if she wanted a cigarette. He went
23 to the store to get her some, but did not feel
24 right going back into the room when he got back
25 to the house, so he did not.
26 Analysis on consent: I found CC to be a
27 believable witness. She gave her evidence in a
1 straight forward and unembellished way. She
2 maintained her evidence under cross-examination
3 and was not challenged in any substantial way
4 except perhaps on the reliability of her memory
5 during the time she was half awake. If I had
6 only had her evidence to rely on, the outcome
7 today would likely have been very different.
8 That said, I also found George Wrigley to be
9 a believable witness. His evidence was clear and
10 not self-serving. He made a number of admissions
11 which could have potentially damaged his
12 position, including admitting that he apologized
13 to CC after the incident. He maintained his
14 position under cross-examination and was not
15 shaken in any substantive way.
16 In the end I am simply unsure who to believe
17 and am therefore unsure about what happened. I
18 must give the benefit of this uncertainty to the
19 accused.
20 Moving on to the issue of mistake of age.
21 The accused says he believed that CC was 18 years
22 old. The underlying evidence supporting this
23 belief is essentially uncontradicted. He had
24 dated CC's older sister BC very briefly during
25 the summer of 2014. In 2017 BC would have been
26 18 or 19. BC and CC were in the same class in
27 school before they left for Calgary. The years
1 are combined in Tulita, and he believed that this
2 meant CC was 17 or 18. She drank, stayed out all
3 night and hung around with people who were 18 or
4 19. Her age was not given on her Facebook
5 profile, and the court was provided with a
6 profile picture of CC from Facebook from the time
7 in question. It shows a young woman with a
8 fairly adult look who could easily have been 17
9 or 18.
10 The Supreme Court of Canada in the case of
11 R v George [2017] 1 SCR 1021 provided a helpful
12 guide to analyzing this issue. While most
13 criminal offences require a purely subjective
14 fault element, the law has imposed both a
15 subjective and an objective component where a
16 complainant was under the age of consent. At
17 paragraph 8 of the George decision, and I quote:
18 ...the Crown must prove, beyond a reasonable doubt,
19 either that the accused person
(1) did not honestly believe
20 the complainant was at least
16 (the subjective element);
21 or (2) did not take "all reasonable steps" to ascertain
22 the complainant's age (the objective element).
23
24 I find that George Wrigley had an honest belief
25 that CC was 16 years of age or older, and that
26 this belief was reasonably held.
27 The question then becomes whether or not the
1 Crown has proven beyond a reasonable doubt that
2 he failed to take all reasonable steps to
3 ascertain her age, the objective element.
4 Quoting again from George, this time from
5 paragraph 9:
6 Determining what raises a reasonable doubt in respect of
7 the objective element is a highly contextual,
8 fact-specific exercise.
9
In some cases, it may be
10 reasonable to ask a partner's age. It would be an error,
11 however, to insist that a reasonable person would ask a
12 partner's age in every case.
13
Conversely, it would be an
14 error to assert that a reasonable person would do no
15 more than ask a partner's age in every case, given the
16 commonly recognized motivation for young people to
17 misrepresent their age.
18
That said, at least one
19 general rule may be recognized: the more
20 reasonable an accused's perception of the complaint's
21 age, the fewer steps reasonably required of them.
22
23 The accused honestly believed CC was 16 or
24 older. He based this assumption on a number of
25 factors. He assumed she was only about a year
26 younger than her sister because she and her
27 sister were in the same class at school, and the
1 school combined no more than two years into a
2 single class. She hung around with people who
3 were older than she was and did things that older
4 teenagers do such as drink, party and stay out
5 all night. Her appearance was in keeping with
6 this assumption.
7 There are a few other factors worthy of
8 consideration. Mr. Wrigley and CC are not
9 terribly far apart in age. As well, he gives the
10 impression of being younger than his years and
11 not particularly sophisticated.
12 The Crown quite fairly points out that
13 Mr. Wrigley did not ask CC how old she was. The
14 question of what constitutes all reasonable steps
15 is highly contextual and case specific. An
16 accused person need not, in every case, expressly
17 question the complainant about her age.
18 So the question boils down to this: Was the
19 assumption made by George Wrigley sufficient in
20 the context of all the circumstantial indications
21 of age and the circumstances of the event itself
22 to raise a reasonable doubt on the issue of
23 whether or not he took all reasonable steps? I
24 find that it was.
25 Based on the findings above I find George
26 Wrigley not guilty on both charges.
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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 8th day of September, 2018.
10
11 Certified pursuant to Rule 723
12 of the Rules of Court
13
15 _______________________
16 Darlene Sirman, CSR(A)
17 Court Reporter/Examiner
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