Territorial Court

R. v. Allen, 2005 NWTTC A1
Date: 20050121
Docket: T-1-2004002161

IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


HER MAJESTY THE QUEEN


- v -


ROGER ALLEN


Transcript of the Reasons for Judgment delivered by The Honourable C/Judge R.M. Bourassa, in Yellowknife, in the Northwest Territories, on the 19th day of January, A.D. 2005.


APPEARANCES:

Mr. J. Burke:   Counsel on behalf of the Crown

Mr. A. Marshall:  Counsel on behalf of the Accused


Charge under s. 271 C.C.


Ban on Publication of Complainant/ Witness Pursuant to Section 486 of the Criminal Code


THE COURT:   The accused is charged that on the 19th of May, 2004, at the Town of Inuvik, in the Northwest Territories, did commit a sexual assault on the person named in the Information, contrary to section 271 of the Criminal Code.

The Crown elected to proceed by way of summary conviction. The accused pleaded not guilty.

These are my findings and reasons, following trial.

I have taken the opportunity to carefully study the transcripts that were entered as exhibits, to review my notes of the evidence adduced at trial, as well as the law provided by Crown counsel and the law generally.

With respect to sexual assault, the Supreme Court of Canada in Regina v. Ewanchuk clearly stated the parameters of section 271 in dealing with the mens rea, and if I may quote:

The mens rea of sexual assault contains two elements: the intention to touch and knowing of, or being reckless of or willfully blind to, a lack of consent. The defence of mistake does not impose any burden of proof upon the accused. Support for the defence

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may stem from any of the evidence, including the Crown's case in chief and the testimony of the complainant. In order to raise the defence of honest but mistaken belief, the evidence must show that the accused believed that the complainant affirmatively communicated through her words or actions consent to engage in the sexual activity in question. A belief that silence, passivity or ambiguous conduct constitutes consent provides no defence. An accused also cannot rely upon his purported belief that the complainant's expressed lack of agreement to sexual touching in fact constituted an invitation to more persistent or aggressive contact. Once the complainant has expressed her unwillingness to engage in sexual contact, the accused should make certain that she has truly changed her mind before proceeding with further intimacies. The accused cannot rely on the mere

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lapse of time or the complainant's silence or equivocal conduct to indicate that there has been a change of heart and that consent now exists, nor can he engage in further sexual touching to “test the waters”.

In assessing the evidence and analyzing the evidence, I am of course bound and follow Regina v. W.D. If I believe the accused, that is the end of the Crown's case because the accused said that he had an honest belief in consent. Even if I do not believe the accused, I have to ask myself if his evidence raises a reasonable doubt. And even if I do not believe the accused and reject his evidence, I still have to be satisfied beyond a reasonable doubt on the Crown evidence that the case has been made out. Following the analysis required by the Supreme Court of Canada, then I have to look at the accused's evidence at the outset.

There were a lot of difficulties with the accused's evidence. There were a lot of contradictions.

I will start with the transcript of the interview that he had with Corporal Beland in which he stated clearly and unequivocally at page

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25 of 27, line 17:

No no, I ah just want to make a statement here, you know I've, I've been open and truthful with you.

And at other portions of the statement, the accused indicates that in his role as Minister of Justice and his knowledge of the law and the judiciary and the police, he understands the importance of being honest.

Yet, the accused today states that he is mistaken in a number of areas in a statement given on the 1st of June, 10 days or 11 days subsequent to the alleged sexual assault, and that he has subsequently thought about the matter extensively and has revised his recollection of what transpired.

None of the contradictions in and by themselves are particularly dramatic, critical, or crucial, but there is a combined effect.

For example, the accused says that he left the hotel room with the victim and they came down together. His own witness and the victim testified that this was not the case.

The accused denies any knowledge that the victim had made alternate arrangements for accommodation, and yet in the transcript it is clear that he knew either that evening or in the

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subsequent morning that she had in fact made alternate arrangements. The accused denies any knowledge of the room change because of the smoking issue in his evidence, but in the statement again it is clear that he understood that that was one of the problems.

The accused says in his evidence that they were both standing in the room and that is when he embraced her. In his statement to the police, she was sitting on the bed, he was sitting on the chair, and he approached her and lay down beside her on the bed.

The accused tells us that he lay down on the bed with her and pulled her shirt up, sucked her breast, but denied being on top of her. He said he was on her side. At another point in the cross-examination he said that he kissed her on the stomach and moved up. I do not want to speculate on what is or is not possible in terms of physical activity, but the accused saying that he kissed her on the stomach and then moved up seems more consistent with being on top of her than being somehow side-to-side.

The accused said that he went to her room and carried up her luggage because he wanted to talk to her about scheduling, and yet at no time was there any talk of scheduling. Ever. In

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fact, she did not even know that he had a meeting that night.

It is curious that the victim, who is described in the transcript variously as valuable, an asset, a hard worker, an excellent employee, would resign as soon as she returned from this trip to Inuvik and he never asked her why. I also find it interesting that not only did she receive one, but two unsolicited endorsements and recommendations.

The accused said that in the morning after she did not show up until 11:30 or 11 o'clock, he did some research to find out where she was and finally determined that she was at her cousin's, and that he remembered a genealogical survey that had been done some time ago and somehow from that and a number of phone calls, found her at her cousin's. I find that curious, not impossible but curious.

But more to the point, I go to the transcript on page 19, question 13:

Question: Alright. Okay. Now, I hear you telling me that, you know, you have the utmost respect for her and, what impulsed you on that day to touch her?

Answer: Two things, if I can.

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Question: Yeah. Oh please go ahead.

Answer: And not to be incriminating. She's attractive.

Question: Hmm mm.

Answer: And secondly, I don't know it was impulsive.

Question: I'm sorry?

Answer: It was impulsive.

Question: Right, right okay, yeah.

Answer: Yeah.

Question: Did she give you ah any indication that this is what she ah, she wanted you to do?

Answer: No. She did not give me any indication, but she didn't object.

Question: Okay.

Answer: At the beginning and then when she began to object I, I, you know, as a gentleman I ah appreciate it and I, I moved on and away and ah, you know obliged her request.

Question: Okay.

Answer: Or her, in this case I wouldn't request but her demand.

The “lay” test of “no means no” is not the real test; the Supreme Court of Canada in effect

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says the test is “where is the 'yes'”? And it is clear to me there was no “yes”.

By and large, I did not think the accused's evidence survived the cross-examination. The accused, in his evidence on cross-examination, was caught in numerous contradictions and was unable to explain them other than saying his recollection was better today.

In my view, there is no air of reality to the consent the accused says he perceived, and there is absolutely nothing in the relationship between the accused and the complainant that could be a source for an honest inference of consent. In fact, in his statement to Corporal Beland, the accused says that the relationship was based on friendship and professional relationship, and a number of occasions talks about how professional it was. His relationship was based on a deep respect. And in answer to a question, number 22 on page 6 of the transcript:

Question: Have you in the past have you made any physical advancements on her ah in, in a sexual manner?

“No” was the answer.

Now, the witness for the prosecution testified that before taking the job, the full-year contract with the accused, because of

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some intimacies or hugging or kissing that had gone on in the past while she had worked for him, she made it very clear to him that she would take the job but that conduct had to end. And he agreed to that; but clearly, it did not end.

Listening to the accused's evidence, I just find it too riddled with contradictions, a reconstruction with an ex post facto justification, and I cannot accept his evidence.

That leaves me the evidence of the complainant.

The complainant gave very straightforward evidence. She had on occasion persuaded the accused to use his credit card to do a deposit for her laser eye surgery. I do not make anything of that. Borrowing money from someone, using someone's credit card, extending a courtesy to them, sharing a tragic moment at the hospital, none of that is an indication of a desire for sexual contact and nor can be it construed as such. A personal relationship involving speaking about personal issues - divorce, marriage, problems with children - or whatever else may have transpired between the accused and the victim, do not carry with them any kind of inference of consent to sexual contact. In fact, the physical contact between the accused and the

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victim left the victim, on her evidence, uncomfortable to the point where she was unwilling to accept the job unless she laid this out and made it very clear to the accused, which she did, and she was satisfied after having done so that there would be no more unwanted touching.

I accept her evidence that they went to the room, that she did not want him to go to the room; that she had made alternate arrangements; that she was surprised when the accused brought her luggage to her room; that as soon as the door was closed and she had made the coffee, she is sitting on the bed, he in the chair, he got up, came over and she said “threw” her down on the bed. I take that to mean, with her sitting on the edge of the bed, that he lay her down, and sexually assaulted her.

Endurance and sufferance is not to be construed and cannot be construed as consent.

I go back again to the Supreme Court of Canada in Ewanchuk. Where is the “yes”? There was no “yes”.

She protested. In the transcript of his interview, he acknowledges that not only did she say “Enough is enough” or words to that effect, but she also said “no”, which is consistent with her evidence that when he laid her on the bed and

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started pawing at her, she said “No, no. Roger, what are you doing? No.”

Question: Okay and when you laid on the bed from that point on what, what happened there?

Answer: Well I hugged her for a long time and um then I just by impulse ah, you know she's quite (inaudible) you know I did ah suck on her breast but there's no objection. But other than that there's no other physical ah attempt to try to and I, and I can't lie to you, there's no other physical attempt to, to get into her pants cause she said no. And eh so I got up and she said eh, I went downstairs and eh, then she came down. And then I do have two ahem, two witnesses that saw me hand her forty dollars for lunch money. And that's ah, that's that the honest part of my story.

And when the phone rang, that was her escape valve, and she also said at the time words to the effect that “That's it, that's enough”, and may very well have said other words. Nothing in

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particular turns on what exact words were said. What is important is that she said “no”, she said “That's it, enough's enough”, and even though she said “no” the accused continued; it was only the phone call that interrupted things.

In the end then, I find that the offence is made out as described by the Crown witness and the accused is convicted.


Certified to be a true and accurate transcript pursuant to Rule 723 and 724 of the Supreme Court Rules of Court.

Annette Wright, RPR, CSR(A)
Court Reporter

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