nunavuumi iqkaqtuijikkut

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut
Citation:

R. v. Takawgak, 2015 NUCJ 07

Date:
Docket:
Registry:

20150206
11-13-29
Iqaluit

Crown:

Her Majesty the Queen

-and-

Accused:

Silas Takawgak

________________________________________________________________________
Before:

The Honourable Madam Justice Cooper

Counsel (Crown):
Counsel (Accused):

Amy Porteous; Sarah Bailey

David Berg

Location Heard:
Date Heard:
Matters:

Iqaluit, Nunavut
January 30, 2015
Criminal Code, s. 146(1); s. 151; s. 243.3; s. 245(1); s.
246(1); s. 271

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)

DISCLAIMER PAGE
Anonymized Judgment Disclaimer:

This judgment has been has been anonymized to

at the discretion of the authoring Justice to protect
vulnerable parties. Letters have been assigned at
random.

Amended Decision: An amended decision was issued on February 9, 2015; the

corrections have been made to the text and the amendment is appended to this
judgment.

Table of Contents
REASONS FOR JUDGMENT ................................................................................... 1
I. INTRODUCTION........................................................................................................... 4
II. OVERVIEW OF ISSUES ............................................................................................ 4
A. Delay ......................................................................................................................... 4
B. Collaboration/tainting of evidence ........................................................................ 5
C. Animus/motive to fabricate ................................................................................... 6
III. ANALYSIS ................................................................................................................... 6
A. Evidence of RK (counts 1, 2 and 3) .................................................................... 6
B. LK (count 4) .............................................................................................................. 8
C. FA (count 5) ............................................................................................................. 9
D. LQ (count 6) ........................................................................................................... 11
E. TA (counts 7 and 8) .............................................................................................. 13
F. BA (counts 9 and 10) ............................................................................................ 13
IV. CONCLUSION .......................................................................................................... 16

I. INTRODUCTION
[1]

Mr. Takawgak is charged with a number of sexual offences and one

simple assault involving six different complainants. All of the
allegations are dated, some dating back to 1984 and the most recent
being in 1994.

[2]

All of the complainants are from a small Nunavut community and, as

expected, know each other. Some are related. The main issue to be
determined by the Court is whether concerns relating to the possibility
of collusion and fabrication amongst the complainants or,
alternatively, the innocent and accidental tainting of evidence, are
such that it would be dangerous to convict.

II. OVERVIEW OF ISSUES

A. Delay
[3]

This Court in R v DeJaeger, 2014 NUCJ 21, [2014] NuJ No 22 (QL),

spoke at length of the difficulties in prosecuting, defending, and
adjudicating historical offences That memories become less precise
with time and that perceptions are influenced by intervening events
and the passage of time is natural and understandable. However, as
natural and understandable as it might be, it makes the fact finding
process even more difficult.

[4]

Some of the complainants in this matter were youthful, although

perhaps not children, at the time of the allegations. Nevertheless,
direction regarding the correct approach to assessing childhood
memories is of some assistance. The standard for assessing
childhood memories recounted by an adult witness is set out by
McLachlin J (as she was) is R v W(R), [1992] 2 SCR 122, 74 CCC
(3d) 134:
Every person giving testimony in Court, of whatever age, is an
individual, whose credibility and evidence must be assessed by
reference to criteria appropriate to her mental development,
understanding and ability to communicate. But I would add this. In
general, where an adult is testifying as to events which occurred when
she was a child, her credibility should be assessed according to criteria
applicable to her as an adult witness. Yet with regard to her evidence
pertaining to events which occurred in childhood, the presence of
inconsistencies, particularly as to peripheral matters such as time and
location, should be considered in the context of the age of the witness
at the time of the events to which she is testifying.

B. Collaboration/tainting of evidence
[5]

In addition to the passage of time, in this matter there are suggestions

that the various complainants either intentionally fabricated their
allegations or, alternatively, had their memories and perceptions of
historical events tainted through discussions with other complainants.

[6]

As difficult as it may be for the trier of fact to deal with fabricated

allegations, it is even more difficult to assess whether there has been
accidental tainting of memories and perceptions. This is because the
complainant whose memories and perceptions have been
accidentally tainted are truthful, honest, but mistaken witnesses. In
other words, they are credible witnesses, but they may not be reliable
witnesses.

C. Animus/motive to fabricate
[7]

Closely connected to the issue of fabrication is the issue of amicus, or

whether the complainant has a motive to fabricate allegations against
an accused. Of course, absence of evidence of motive to fabricate
does not mean there is no motive to fabricate, it is simply a lack of
evidence on the point. There is no onus on an accused to prove
motive to fabricate and the lack of any evidence on this issue is
simply neutral. However, in those instances where there is animus
between the parties that is separate and apart from the allegations
before the Court, caution must be taken and the Court must be
satisfied that the allegations have not been fabricated or exaggerated.
Of course, a motive to fabricate may exist independently of any
animus between the parties.

III. ANALYSIS
A. Evidence of RK (counts 1, 2 and 3)
[8]

The accused is charged with sexual assault, having sexual

intercourse with a female under 14 and not his wife, and uttering
threats against the complainant RK. All of the charges arise from the
same set of facts and are alleged to have occurred between January
1, 1987 and December 31, 1988.

[9]

RK testified that in the summer when she was 11 or 12 years old, she
was walking in the community with two friends. She testified that the
accused called out to her from a window and told her to come into the
house. She had not met the accused.

[10] She testified that she went into the house. The accused walked her
through the living room, where his mother and two sisters were, and
into his bedroom. In the bedroom the accused tried to take her pants
down and she resisted by holding them up. The accused was able to
get her pants down. He put her on the bed and had sexual intercourse
with her. He told her not to tell anyone or he would hurt her or kill her.
When the complainant left she again had to walk through the living
room. She does not recall if the mother or sisters were still in the living
room when she left.
[11] In early 2013, she discussed the incident with her older sister, MJ,
and also with LK and LQ. About a month later she also spoke with FA.
All of the women complained of being sexually assaulted by the
accused.
[12] The complainant reported this incident to the police in February of
2013. At that time, she gave the police the names of other women
who might have been sexually assaulted by the accused, including
the four women she had spoken with earlier in the year.
[13] The complainant denied having spoken with RT, the former wife of the
accused. Although when the police spoke with RT, she gave the
complainant's name as a possible victim.
[14] There was an inconsistency between the evidence of the complainant
at the preliminary hearing and at trial, in that, at the trial she initially
testified that the first person she had spoken with was FA. However,
on cross-examination when her evidence from the preliminary hearing
was put to her, she adopted it and agreed that the first person she
had told was MJ.
[15] Defence counsel submits that the scenario testified to by the
complainant is simply implausible and should not be believed.
Defence counsel submits that it does not make sense that a young
girl would enter the home at the request of a man she does not know
and that once matters started getting out of control she would not call
out for help to those who were in the living room.

[16] In assessing the plausibility of the complainants evidence it is

important to keep in mind her young age at the time. While there is no
one way that any complainant of a sexual assault will react, either at
the time of the incident or following the incident, it is reasonable to
expect that that younger and less sophisticated the complainant, the
less likely she would be to speak out.
[17] RK did speak with some of the other complainants about this incident.
However, she was the person who instigated the discussion in talking
about her past. While she may have encouraged some of the other
complainants to come forward with their allegations, there is nothing
to suggest her evidence was influenced by her discussions with them
nor is there evidence of animus that is separate and apart from the
alleged incident.
[18] The complainant presented her evidence in a straight forward,
credible manner. The inconsistency between her evidence at the
preliminary hearing and at trial as to who she first disclosed to is, in
my view, a minor inconsistency that does not impact on the reliability
of her evidence.
[19] I find the accused guilty of counts 1, 2 and 3.
B. LK (count 4)
[20] The accused is charged with one count of sexual assault on LK
alleged to have occurred between January 1, 1993 and December 31,
1994.
[21] On the evening in question the complainant was walking home from a
gathering. She had been drinking. It was cold. The accused was
driving by on a skidoo and offered her a ride. She accepted and got
on the back of the skidoo, behind the accused. While he was driving,
the accused took his left hand off the handle bars and reached back,
touching the complainant on her thigh. The complainant testified that
he rubbed her thigh and asked her if she wanted to do it one last
time. She refused him and pushed his hand away. The accused
dropped her off at her house and went on his way.

[22] It came out in the evidence that the complainant and the accused had
a daughter together, who is deceased. It appears they had a
relationship of some duration and that the relationship was
complicated. The complainant had a relationship with the accused
while married to someone else. Her husband was aware of the
relationship as the complainant got an STD from the accused which
she passed on to her husband. This evidence came out only at the
preliminary hearing, while the complainant was on the witness stand.
There is evidence that the complainant's former husband (since
deceased) was jealous of LK's relationship with the accused and
would be violent towards her because of his jealousy.
[23] LK is the sister-in-law of RK, having been married to RK's brother. LK
agreed that she spoke with RK and that RK told her to speak with the
police. LK denied having made up the allegations in collusion with any
of the other complainants.
[24] This incident is alleged to have occurred over 20 years ago. The
animus between the accused and the complainant is obvious from the
evidence. Further, the complainant was urged to go to the police by
her former husbands sister. There is a risk that the incident was
overstated and perceived differently as a result.
[25] The motive to fabricate in this case is real. I find the accused not
guilty of count 4, a sexual assault on LK.
C. FA (count 5)
[26] The accused is charged with one count of sexual assault on FA,
alleged to have occurred between September 1, 1988 and May 1,
1989.
[27] FA testified that she was 16 at the time. She was walking home from
the community hall with a friend when the accused started to walk
with them and ask her friend to come with him. When the friend
refused he turned his attention to FA. She was encouraged by both
her friend and the accused to go with him so she did. She knew who
the accused was from seeing him around the community.
[28] FA and the accused went to the house the accused shared with his
mother and siblings. They went to his bedroom, passing through the
living room on the way. The mother of the accused was in the living
room with some other people.

10

[29] Once in the bedroom, some other people joined them and they
smoked some hash. The complainant became quite stoned. When the
other people had left the bedroom the complainant laid down on the
bed. The accused used one hand to hold the complainant's arms
above her head and used his other hand to remove her pants. He had
sexual intercourse with her. The complainant testified that she told the
accused several times that she did not want to do it. She remained
in the house for some period of time before leaving. She cannot recall
if the mother of the accused or anyone else was in the living room
when she left.
[30] The complainant and the accused went on to have a boyfriendgirlfriend relationship for almost a year after this incident.
[31] At the preliminary hearing the complainant testified ...it's just now I
realize that it was a sexual assault that had impact on me.
[32] At the preliminary hearing the complainant testified that the sexual
assault did not happen the first time she was in the bedroom of the
accused, but that it happened a few days later, after they had started
going out together. She seemed to adopt this evidence at trial during
re-examination.
[33] In cross-examination, the complainant agreed that on the night in
question she went to the home of the accused by herself, she walked
into the house and went directly to the accused's bedroom. There
were people in the living room. She agreed that they smoked hash
with a couple of other people and that she remained in the bedroom
for some time after sex. She agreed that she knew other people were
in the house and she did not call out for help.
[34] The complainant testified that RK had been talking to her about the
accused. The complainant testified that RK was talking to her about
her past and then the complainant talked about her past. RK went to
the police and then the police came to talk to the complainant. The
complainant testified that RK did not tell her what to say to the police
nor did she tell RK what to say.

11

[35] There was some difficult questioning and evidence regarding when
FA first realized that she had been sexually assaulted. Evidence given
at the preliminary hearing suggested that she had not thought of what
happened between them as a sexual assault until around the time she
was speaking with RK or until the time of the preliminary hearing. At
trial, she testified that she had realized long before the charges were
being laid that she had been raped.
[36] FA is unable to provide any reasonable explanation as to why she
continued in an intimate relationship with the accused after the
incident, beyond her being confused at the time. There was no
evidence that the accused was abusive or pressured her into being in
a relationship or that she was afraid of him. She is not able to explain
why their relationship ended.
[37] I have difficulties with FA's evidence. In my view, there is a serious
risk that FA's perception of the incident has been tainted, either
intentionally or unintentionally, because of her discussions with RK
and others. There is a real risk that she has taken something
consensual and something that she perceived as consensual for
many years and has turned it into something criminal.
[38] In my view, it would be dangerous to convict on this evidence and I
find the accused not guilty of count 5, the sexual assault on FA.
D. LQ (count 6)
[39] The accused is charged with a common assault on LQ alleged to
have occurred between January 1, 1984 and April 12, 1985.
[40] The complainant was approximately 12 years old at the time. The
accused was friends with her older brother and he would often visit at
her home. The complainant testified that her parents were sleeping
after they had been drinking and she was up late watching TV. The
accused came into the porch of the residence. He asked about her
brother, who was not home, and then he said to her lets go, lets go
out.
[41] The complainant was young and confused and didn't know what to
do. She said that she was scared. She said that at that time of her life
she got scared very easily. She picked up an ulu and held it up in a
threatening manner and the accused left the residence.

12

[42] The complainant continued watching TV. Less than a minute later, the
accused came back and stood in the porch. The complainant was
concerned and wanted to get herself away from the accused. It is not
clear from her evidence if she intended to go out the back door or to
her parents bedroom. Regardless, she found herself having to walk
past the porch. As she did so, the accused grabbed her forearm or
wrist and then the sleeve of her shirt.
[43] LQ testified that she told her mother about the incident the following
day. Her mother does not recall being told about the incident at the
time it is alleged to have occurred and only remembers hearing of it
when LQ went to the police, almost 20 years later.
[44] When the complainant testified at the preliminary hearing, she was
asked if she and the accused had any physical contact that evening.
She responded no, there was none. It was only when she read the
statement she had given to the police that she testified at the
preliminary hearing to the accused having grabbed her wrist and
sleeve.
[45] In early 2013, the complainant discussed the accused with four other
women who also made allegations against the accused. The police
came to speak with her when RK provided them with her name.
[46] The complainant confirmed that there was a history of ill will between
her family and the family of the accused. She confirmed that just one
month before she spoke with the police the accused had gone to jail
for threatening her mother.
[47] The incident, if it occurred, was so minor that the complainant did not
even talk about it at the preliminary hearing until her memory was
refreshed with a statement given to the police 20 years later.
[48] This was not a statement made while the incident was fresh in the
mind of the complainant. The statement was given after both
discussing the accused with RK and after the accused had threatened
the complainant's mother. The initial disclosure the complainant made
to her mother at the time is not corroborated by her mother. There is a
long history of animosity between the accused and the family of LQ.
[49] In my view it would be dangerous to enter a conviction on this
evidence. I find the accused not guilty of count 6, an assault on LQ.

13

E. TA (counts 7 and 8)
[50] The accused is charged with sexual touching and sexual assault on
TA between January 1, 1993 and December 31, 1996. Both charges
arise from the same set of facts.
[51] TA testified that she was sleeping over at BA's house, who is her
relative and at the time was her best friend. TA was between 7-10
years of age and BA was slightly older.
[52] At the time, the accused was in a relationship with the mother of BA
and lived in the house.
[53] TA and BA were sleeping in BA's room, sharing a bed. TA was
closest to the door. She was sleeping on her stomach with her arms
crossed under her head. Her head was turned away from the door.
She felt she was being touched on her buttocks, under her
underwear, directly on the skin. She turned her head and saw the
accused standing next to her, beside the bed. He was wearing a long
white housecoat. No one said anything and the accused left the room.
TA got out of bed and went downstairs. BA's mother was in the
kitchen, doing dishes. Although it was 3:00 am, TA chose to go home
rather than go back to BA's room.
[54] The Defence has argued that TA had completely forgotten about the
incident and that this was, in essence, a recovered memory. In my
view, this is not a correct characterization of the evidence. I
understood the witness as expressing a desire to want to forget about
the incident and not wanting to think about it. I did not understand her
evidence as being that she was ever without a memory of it
happening and that she only recovered that memory sometime later.
[55] TA presented as a credible witness. While it is true that her aunt and
the accused had a history of difficulties, I do not find that this
influenced her evidence. I accept the evidence of TA and find the
accused guilty of counts 7 & 8.
F. BA (counts 9 and 10)
[56] The accused is charged with touching for a sexual purpose and
sexual assault on BA between January 1, 1994 and December 31,
1998.

14

[57] The accused was in a common-law relationship with BA's mother at

the relevant time. BA testified that on three occasions the accused
came into her room when she was sleeping and touched her under
her clothing. Each time she was being touched she woke up, at which
point the accused left the bedroom.
[58] BA testified that after each incident she told her mother what had
happened. Her mother said that if it ever occurred again she would
leave the accused, however, she did not leave him so BA left the
house and went to live with her grandfather. She was about 13 at the
time.
[59] BA's mother and RT, the former wife of the accused are related. BA's
mother and RT talked about the accused, following which RT spoke
with BA and told her that if the accused did anything to her she should
report it to the police. Following this conversation the police came to
speak with BA.
[60] BA said that she told the police that the accused had apologized to
her. She said that she mentioned this to the police after the tape
recorder had been turned off. The police officer does not have a note
of this nor does he recall BA mentioning this and that it was his
practice to make a note of such a comment. At trial, BA testified that
the apology had been to her mother and not directly to her.
[61] BA's mother testified and confirmed that, when they were living with
the accused, BA came to her on two occasions and told her that the
accused had been touching her during the night. The mother is able
to recall the circumstances of the first disclosure and describes that
she was folding laundry at the time.
[62] Defence counsel points to inconsistencies in the preliminary hearing
and trial evidence regarding the age of the complainant at the time of
the incidents. He argues that BA described having moved out to her
grandfather's after the third incident while the mother said that BA did
not move out of the house until the mother relocated to the south.
[63] In my view, the uncertainty regarding the age of the complainant at
the time is to be expected given the passage of time. There is
evidence, which relates in time, between the first incident and the
death of BA's maternal grandmother. The mother testified that she
recalls the first disclosure being around the same time. This is a more
reliable way to date the incident than estimates made decades later.

15

[64] The mother testified that BA was living on and off at the house of her
grandfather. It seems from the evidence that BA moved somewhat
freely between the house of her mother and the houses of some of
her extended family, as is often the case in Nunavut, particularly in a
small community.
[65] Clearly, the accused and BA's mother had a difficult relationship. BA's
mother admitted to still feeling angry when she saw the accused.
However, the difficulties between BA's mother and the accused were
long past. There were no recent, ongoing issues between them that
could lead to a concern of BA fabricating allegations to assist her
mother.
[66] BA candidly testified that the former wife of the accused, RT, had
wanted her to report the offences to the police so that the accused
would stay in jail longer. While this may have been the motivating
factor for RT, this does not mean it was the motivating factor for BA. It
may well be that BA would not have gone to the police if she had not
been encouraged to do so by RT, but this does not necessarily
detract from the credibility of the witness.
[67] I accept the evidence of the mother as to the disclosure by BA
following the incidents. This rebuts the suggestion of recent
fabrication.
[68] I accept the evidence of BA as to the nature of the touching on three
separate occasions. I find the accused guilty of counts 9 &10.

16

IV. CONCLUSION
[69] The findings of the Court are summarized as follows:
Counts 1, 2, & 3:
Count 4:
Count 5:
Count 6:
Counts 7 & 8:
Counts 9 & 10:

guilty
not guilty
not guilty
not guilty
guilty
guilty

Dated at the City of Iqaluit this 6th day of February, 2015

___________________
Justice S. Cooper
Nunavut Court of Justice

17
_______________________________________________________
Amendment of the Reasons for Judgment Reserved of
The Honourable Madam Justice Cooper
_______________________________________________________
In the table of contents and on page 6, the heading C has been changed from C.
Amicus/motive to fabricate to C. Animus/motive to fabricate.

Please replace the amended pages in your hard copy of the judgment.