CITATION: R. v. Kakegamic, 2017 ONSC 6411

COURT FILE NO.: 14-32004

DATE: 2017/10/25

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JAKE MILLOY KAKEGAMIC

Accused

J. Fuller, for the Crown

N. Calvinho, for the Accused

HEARD: October 17 – 20 and 23, 2017

REASONS FOR JUDGMENT

PHILLIPS, J.

[1]

Overview

In September 2013, a large group of military personnel gathered for an international marksmanship competition at Ottawa’s Connaught Rifle Range. When they were not shooting, the competitors socialized and slept in large tents in a field. There was a lot of drinking. Milloy Kakegamic stands charged with sexual assault.

The Evidence of the Complainant

[2]

The Evidence of the Complainant

D.J. is presently 25 years old. She is from Northwestern Ontario. After joining the military at about age 20, she went for training. There, she met the accused who is from Sandy Lake, a fly-in reserve also in Northwestern Ontario. He was about 35, roughly 15 years her senior. The pair came to know each other, therefore, through the military and would encounter one another occasionally during training over the years. That said, their relationship was never close. In September, 2013, they were mere acquaintances who were both in Ottawa for the same purpose and came from the same general part of the province. They had never done anything alone together.

3Milloy Kakegamic was assigned to a tent with a few other men. That tent became the gathering place for the team from Northwestern Ontario to socialize and drink. It had a table and some chairs. There was music.

4D.J., the group’s lone female, was assigned her own tent a short distance away.

5On Thursday, September 19, 2013, the group decided to go to the liquor store. D.J. went along and got a 26 oz bottle of Wiser’s Whisky. She then joined the men in their tent, taking a seat at their table to drink and socialize. Mr. Kakegamic also spent the time drinking and socializing, both at the table with D.J. and the others, or nearby on one of the bunks.

6I accept the complainant’s evidence that she started off taking 1 oz shots and then upgraded to 2 oz portions. The last thing she remembers is gulping down the last few mouthfuls straight from the bottle. Even though she was sharing with others, she figures she drank at least half the 26 ounces. I believe her in that regard.

7I find that the next memory D.J. has is of waking up in the morning. A Corporal was banging on doors yelling for everyone to get up for the day. D.J. rose from her bunk and immediately realized she was naked from the waist down. She was wearing only a muscle shirt and a bra, despite having been wearing a sweatshirt as well as jogging pants and underwear. I accept that she found her pants on the floor, and observed vomit on them. I accept that she could not find her underwear. I believe her when she describes that her vagina felt sore, as if it was torn. I further accept that she went to the bathroom, and, after feeling around for it as best she could, she could not find the tampon she had put in before going out. Finally, I accept that she also noticed that she had a fresh hickey on her neck and a bruise on her upper, inner right thigh.

8D.J. kept all this to herself. I find that she simply did not know what had happened.

9Later in the week, in the process of travelling homeward, D.J. ended up talking to a team-mate, Freeman Ningewance. He ended up asking her if she had lost anything. She revealed that she had lost a pair of underwear. He told her he had both good news and bad news for her. The good news was that he knew where her underwear was. The bad news was that Milloy Kakegamic had it and had been showing it off to all the guys and bragging about having had sex with her.

10D.J. reacted with disbelief and anger. She had no memory of any such event. I accept that her emotional state in that regard was genuine.

11A few days after getting home, D.J. continued to have discomfort in her vaginal area. In addition to pain, there was some discharge and an odour. D.J. went to see a nurse who performed a pelvic examination. The nurse extracted a tampon that was lodged in D.J.’s vagina. D.J. was prescribed medication to offset the symptoms of infection.

12The authorities became involved and the present charge was laid.

13I found D.J. to be a thoughtful, forthright and impressive witness. She did not exaggerate or appear to be motivated by anything other than a desire to tell the truth. She has a dim view of Mr. Kakegamic, but not outside the range of what would be expected in the circumstances. She was unshaken on cross-examination. I believe her and accept her evidence with respect to all the facts I have outlined thus far.

14There is a part of D.J.’s evidence, however, which is problematic. In fact, I decline to put any weight on it at all. D.J. testified that roughly three months after telling the authorities that she had no memory between finishing the whisky bottle and rising in the morning, a new memory came to her. That revived memory is of waking up in her bed in the middle of the night with Mr. Kakegamic over top of her trying to spread her legs apart with his foot. She says she shoved him and told him to get out of her tent. He left after telling her not to tell anybody. She got up and locked one of the two doors to her tent before going back to sleep.

15The Crown seeks to rely on this recovered memory as part of the complainant’s evidence, in that it constitutes direct evidence of the accused touching the complainant for a sexual purpose without her permission. I gather the Crown theory is that this episode occurred at some time before the accused would have returned to subject the complainant to unwanted intercourse. As such, it bears on the penultimate event by showing non-consensual sexual aggression from him to her earlier in the night.

16While I believe D.J. and find her to be an entirely credible witness, I have serious reliability concerns about this “recovered memory” part of her account. I am troubled by the fact that it came to her over three months after the event. I expect that during that time she would have been constantly thinking about the night in question and trying hard to remember what the accused had done to her. I also expect that during this time she would have felt anger toward Mr. Kakegamic, given that he had gone around with her underwear as a trophy, bragging about having had his way with her. My worry is that in trying so hard to remember how the sexual contact occurred, the complainant might have engaged in a form of wishful thinking in arriving at the memory she did. While of course I am no psychologist, I am concerned about a memory recovered so long after the fact, after such purposeful effort, while possessed of a pre-conceived notion that sexual contact occurred and a healthy amount of animus toward the source of that information. I believe her when she describes having the newer memory. However, I find it unreliable and will not be considering it. As part of my ability to accept some, none or all of the evidence of any witness, I have decided to accept all of the complainant’s evidence except for the recovered memory part.

The Evidence of Freeman Ningewance

[17]

The Evidence of Freeman Ningewance

Freeman Ningewance is 40 years old and comes from Kigi Bay in Northwestern Ontario. He joined the Canadian military in approximately 2012. He was a tent-mate of Milloy Kakegamic at the shooting competition, meeting him for the first time in Ottawa.

18Mr. Ningewance was an impartial, disinterested witness. He did not exhibit any animus toward the accused or any favouritism toward the complainant. I found that his occasional memory lapses were understandable and served only to underline his trustworthiness. The fact that he would freely admit to some failures of memory makes more credible the things he says he can indeed remember. He was trying only to tell the truth as best he could. That said, I felt his account of the schedule of Thursday night was unclear. It seemed at times like he was combining other nights into that one. It appeared to me that his own alcohol consumption was interfering with his ability to accurately recall the night in question. However, that reliability problem does not exist with respect to his description of the events of the day after. I fully accept his evidence with respect to his observations and conversations with Mr. Kakegamic in the morning. In accordance with my ability to accept some, none, or all of any witness’ evidence, I accept the parts of Freeman Ningewance’s evidence relating to conversation he had with Milloy Kakegamic on Friday, September 20, 2013.

19I accept that on Friday morning, after breakfast, Mr. Ningewance had conversation with Mr. Kakegamic. I accept that Mr. Kakegamic told Mr. Ningewance that he had had sex with D.J. in the night. I trust and believe Mr. Ningewance when he remembers that Mr. Kakegamic said that he had met D.J. on the field coming back from the lounge and had gone with her to her tent. I further accept Mr. Ningewance’s evidence that while revealing this, Mr. Kakegamic pulled from his pocket a pair of women’s panties. In the process, “he was telling me that they belonged to [D.J.]”. Finally, I accept that Mr. Kakegamic told Mr. Ningewance that the sex he had with D.J. involved him putting her legs up in the air and in fact on the rails of the top bunk and that when they were finished she told him not to tell the other guys.

20I will add here that Mr. Ningewance was steadfast in his specific recollection that Mr. Kakegamic spoke of having had sex with D.J. Mr. Ningewance refused to agree that Mr. Kakegamic had merely said that he had fooled around with her. I accept his evidence in this regard. It seems to me that the detail of her having her legs up in the air on the top rails of the bunk is a flourish that rings true and is entirely in keeping with an account of having had sexual intercourse as opposed to something less than that. Also, in my view, the level of braggadocio involving the panties is consistent only with a claim to have gone all the way. No one would put such energy into bragging about having come up short. I find as a fact that Mr. Kakegamic told Mr. Ningewance in the morning that he had had sex with D.J. It is clear to me that what he was trying to convey was that they had had intercourse.

21Mr. Ningewance next saw the panties later in the day when they were put over Mr. Kakegamic’s head when he passed out after more drinking. Evidently, Mr. Kakegamic had shown the underwear to the other men.

22I accept that on Saturday, while preparing to leave from the Ottawa Airport, Mr. Ningewance spoke to D.J. Wanting to prod her into talking about the events of Thursday night, he asked her if she was missing anything. She said that the only thing she was missing was a pair of underwear. He informed her that Mr. Kakegamic had her underwear and had been showing them off to the other guys as a souvenir of having had sex with her. I accept Mr. Ningewance’s evidence that D.J.’s reaction “…was like shock, stunned”.

The Evidence of Cory Neshinapaise

[23]

The Evidence of Cory Neshinapaise

Cory Neshinapaise is 30 years old. He also hails from Northwestern Ontario. He has been a member of the Canadian military since age 18.

24Mr. Neshinapaise hit it off with D.J. that week, a fact that became well-known. It would be fair to call them a bit of an item. Having said that, I did not detect any attempt on his part to shade his evidence in her favour. Any relationship between them has long been a thing of the past. Equally, Mr. Neshinapaise did not display any bias or animus toward Mr. Kakegamic. As he put it: “I got along with [Mr. Kakegamic] just fine in Connaught”.

25On the night in question, Mr. Neshinapaise was drinking like all the others. He did not get intoxicated, however, and seems to have a good recall of all material events. His memory frailties are genuine, normal and confined to unimportant details. I found him to be a credible and reliable witness and I accept the following parts of his evidence.

26At the end of Thursday night, Mr. Neshinapaise left his tent to go with a man named Simon to shoot pool at the lounge. On the way, they came across D.J. who was passed out on a picnic table. She was face down with her face resting on her forearms. She was wearing a sweater and leggings. I accept Mr. Neshinapaise’s evidence that: “We tried waking her up. Tapped on her shoulders. She did not wake up. Then me and Simon tried taking her back to her tent. She could not walk on her own. We had to hold each arm”. When the trio got half way to D.J.’s tent, she vomited onto her chest. She did not really wake up in doing so, remaining “half asleep”. Asked if she was able to communicate, Mr. Neshinapaise testified “no, not really. She was just slurring her words. I didn’t really understand her, what she was saying”.

27I accept that Mr. Neshinapaise and Simon carried D.J. to her tent. Before putting her to bed, they removed her sweater “because there was puke on it”. They did not remove any other clothing. When she was put to bed, therefore, she was clothed from the waist down.

28Mr. Neshinapaise stayed with D.J. because he felt the need to keep an eye on her. He sat on the end of her bed and played solitaire on his phone for at least an hour, possibly two. She slept the whole time. Eventually, Simon came by and asked if he wanted to go watch a movie. Mr. Neshinapaise tried to wake D.J. but could not do so. He decided to leave her to sleep. He left the tent, leaving the door unlocked behind him.

29Mr. Neshinapaise went to watch a movie in the lounge and fell asleep in front of the TV. He returned to his tent at around 3 or 4 am. On the way, he saw someone exit D.J.’s tent. He was too far way to recognize the person, other than “he was skinny”.

30The next morning, Mr. Neshinapaise woke between 6 to 6:30 am. He went to “the other guys’ tent”. He saw Mr. Kakegamic sleeping on his back with a pair of women’s underwear in his hands.

The Evidence of Jake Milloy Kakegamic

[31]

The Evidence of Jake Milloy Kakegamic

Mr. Kakegamic is presently 41 years old. As mentioned, he is ordinarily resident in Sandy Lake, Ontario, a fly-in reserve.

32Mr. Kakegamic suffered a head injury while working construction in 2012 or 2013. It would appear that he still suffers the effects of that event. He self-describes as “slow”. I must assess his evidence while being sensitive to his personal circumstances in that regard. I will say, however, that I had no trouble at all understanding him. In my estimation, he was always able to communicate his thoughts effectively throughout his testimony.

33Mr. Kakegamic’s evidence was that while drinking in the tent with D.J., he learned that she had a supply of PowerAde, a sports drink that he knows to be a good hangover cure if taken before bed. She agreed that he could have one at the end of the night.

34Mr. Kakegamic drank about 9 cans of beer as well as about three drinks of vodka. Nonetheless, he does not feel he became intoxicated. He says that he did not come to know D.J.’s level of sobriety: “I wasn’t watching her”.

35Before going to bed, Mr. Kakegamic remembered the offer of a PowerAde so he went to D.J.’s tent. He knocked on her door. After a couple seconds, she responded “oh, hey”. He entered her tent and asked her for a PowerAde. She was laying in her bed with her back to him. He approached her bed and, standing near her feet, again asked for a PowerAde. She responded “Oh, hang on”.

36Mr. Kakegamic then relates that D.J. began to reach down under her bed, apparently searching for the PowerAde. He came closer because he thought she was about to hand him one. He ended up standing near where her head was on the bed. They were face to face such that he could see that she had her glasses on. She did not say anything, nor did he.

37At that point, according to Mr. Kakegamic: “she started rubbing me, down there in my crotch area, my penis. She was rubbing me over my clothing. She’s not saying anything. I’m not saying anything”. Then, “she grabbed me by the hips and waist area and pulled me closer. She then unbuttoned and unzipped my pants. She pulled out my penis. I had underwear on but she pulled it down. She was stroking me. I am feeling, like, okay. I did not become fully erect. I was touching her on her arm. She was touching me and herself. She was using her fingers, feeling around herself, putting her fingers inside her vagina. I thought I was going to get lucky. After she was touching herself, she took off her pants. She kicked them off the foot of the bed onto the floor. I got pulled onto the bed. She then said somebody else’s name: “Cory”. She said it straight, matter-of-fact. I’m thinking she has the wrong person - she thought I was Cory. I didn’t feel good. Surprised. Startled. Shocked. I got up because she thought I was someone else. I didn’t feel right. Awkward. It didn’t feel right. I got off the bed and just left. I just zippered up and buttoned up right away. When I was leaving I noticed that her underwear was caught on the top of my shoe. I thought “aw shit” because they were on my shoe. I took them off. I was feeling so awkward about what just happened so I went back to my tent. I didn’t return the underwear because I was feeling awkward about the fact that she had been calling out someone else’s name. When the guys were around the next day I brought the underwear out. I told the guys I fooled around with her. I showed the guys the underwear to brag. It’s just a guy thing. I never spoke to [D.J.] about what had happened. I was embarrassed.

38I reject Mr. Kakegamic’s evidence. Not only is it unbelievable, it is incapable of leaving a reasonable doubt. The bases for that conclusion include:

• central to Mr. Kagagemic’s evidence is the notion that D.J. thought she was with another man. This idea is inconsistent with other parts of his account. She appears to recognize him as he knocks at her door asking for the PowerAde. The first words out of her mouth are words of recognition: “Oh, hey”. They have an exchange about a subject, PowerAde, they had discussed before. On his evidence, she is clearly connecting his presence and request for a particular drink to that earlier interaction and conversation;

• I cannot believe that when Mr. Kakegamic got close enough to look at D.J.’s face in conditions sufficient to see that she had her glasses on, she would have confused him for another man at least ten years younger, whom she knew intimately;

• I have accepted that D.J. had significant soreness to her vagina the next day, which indeed lasted for days. As well, I have accepted that her tampon ended up pushed into her vagina such that it could only be removed by a nurse. These pieces of evidence cannot have resulted from the complainant’s own hand as the accused implies. The idea that a woman, in seeking to pleasure herself, would force a tampon so far up her vagina that it could only be found and extracted days later by a medical professional is unbelievable. I would say the same thing about the proposition that the injury and soreness to D.J.’s genitalia resulted from her self-stimulation efforts. Masturbation is inconsistent with self-infliction of discomfort;

• Mr. Kakegamic’s decision to show off the panties as a sort of trophy is inconsistent with his claim to have felt awkward and embarrassed by what had happened in the tent. On his account, he had simply been confused for a more desirable man. He would have had every reason to feel awkward and embarrassed. If that was indeed the case, he would never have paraded the underwear to the extent he did. Of course I am aware that men may sometimes exaggerate their sexual exploits. This is way more than that. His motivation to brag was strong and long lasting. If what he says now is true, he would have had nothing to brag about at all;

• Mr. Kakegamic’s evidence is inconsistent with what I find he said to Mr. Ningewance about having had sex with D.J. He was able to provide his friend detail that included the positioning of her legs. He was clearly describing doing more than just fooling around with her in any way close to his present evidence;

• Mr. Kakegamic’s evidence is inconsistent with other pieces of physical evidence that I find existed – the hickey on D.J.’s neck visible the next morning as well as the bruise to her upper, inner thigh.

Analysis of the Evidence I Accept

[39]

Analysis of the Evidence I Accept

Of course, just because I have rejected Mr. Kakegamic’s evidence as incapable of leaving a reasonable doubt, it does not follow that a conviction results. In any criminal trial, the accused need not prove anything. He is presumed innocent regardless of what becomes of his evidence. The Crown bears the burden of proof from start to finish. Accordingly, it remains to be determined whether if on the evidence I do accept the Crown has proven all essential elements beyond a reasonable doubt.

40There are four essential elements to the offence of sexual assault:

(i) That Mr. Kakegamic intentionally applied force to D.J.;

(ii) That D.J. did not consent to the force that Mr. Kakegamic intentionally applied;

(iii) That Mr. Kakegamic knew that D.J. did not consent to the force that Mr. Kakegamic intentionally applied;

(iv) That the force that Mr. Kakegamic intentionally applied took place in circumstances of a sexual nature.

41I have decided to deal with elements (i) and (iv) together. The Crown alleges unwanted sexual intercourse. If that act was indeed done, it would surely amount to intentional application of force in circumstances of a sexual nature.

42I find that the Crown has proved beyond a reasonable doubt that Mr. Kakegamic performed sexual intercourse upon D.J. I base that finding on evidence both direct and indirect. In my view, the words attributed to Mr. Kakegamic by witness Ningewance are direct evidence tantamount to an admission of having had sexual intercourse with her. I find that the detailed way in which Mr. Kakegamic described having had sex with D.J., to the effect that her legs were up in the air etc., is nothing less, in these circumstances, than an admission of having engaged in sexual intercourse. In addition, I find that the evidence of the soreness to D.J.’s genitalia and the tampon having been pushed up her vagina are circumstantial pieces of evidence proving the same thing. There is no other plausible inference available on the evidence or the absence of evidence that could account for those physical effects. I specifically reject the idea that she caused those results herself.

43The question of whether D.J. consented to the force that Mr. Kakegamic intentionally applied relates to her state of mind. It is the voluntary agreement of D.J. that Mr. Kakegamic do what he did in the way he did it and when. In other words, that D.J. wanted Mr. Kakegamic to do what he did. A voluntary agreement is one made by a person, who is free to agree or disagree, of her own free will. It involves knowledge of what is going to happen and voluntary agreement to do it or let it be done.

44As noted above, I accept the evidence of D.J. that she became highly intoxicated after drinking about half a 26 ounce bottle of whiskey. I believe her when she testified to having no memory of anything from the time she finished her bottle to the time she rose from her bed. It is reasonable to infer that she would have been highly intoxicated throughout the material time. I shall be careful here, however, because intoxication and incapacity are not the same thing.

45What is meant by “incapacity”? All of us know that alcohol causes intoxication and that intoxication is a state where judgment is clouded and behaviour is disinhibited. It is normal for intoxicated people to behave in ways entirely, and even woefully, inconsistent with their behaviour while sober. That said, the threshold for incapacity is not the same as mere intoxication. To have capacity, or to be capable of voluntarily agreeing to participate in sexual activity, a person must not be so intoxicated as to be unable to understand the other person’s conduct, the sexual nature of that conduct, or the identity of that other person. The subject must be able to realize that she has the right to choose whether or not to participate in sexual activity with the other person. In other words, the ability to realize that she has the right to say “no” at any time. Capacity in this regard is a continuous, ongoing concept which must be in existence throughout the sexual transaction from beginning to end.

46I have accepted the evidence of Cory Neshinapaise to the effect that by roughly midnight onward, D.J. was passed out, prone and unable to walk unassisted. The sounds coming from her mouth were incomprehensible. She could not even vomit onto the ground without getting it on herself. In my judgment, on the evidence I have accepted, D.J.’s level of intoxication was so extreme as to amount to incapacity. She could not make even basic decisions for herself. She was in no condition to do anything other than sleep it off.

47Accordingly, I find that the Crown has proved beyond a reasonable doubt that D.J. did not consent to the force that Mr. Kakegamic intentionally applied. She did not because she could not.

48Did Mr. Kakegamic know that D.J. did not consent? This element requires the Crown to prove Mr. Kakegamic’s state of mind. It must be proved beyond a reasonable doubt that Mr. Kakegamic knew that D.J. did not consent to the force that he was applying at the time he was applying it.

49Just because someone has no memory of a period of time it does not always mean that they did not communicate in a way ambiguous about consent during that time-span. Of course it is well-known that alcohol can impair memory. Indeed, there can come a point where intoxication reaches a level where the brain fully ceases to record. Many a drinker has awoken with no memory of substantial parts of the night before, particularly the final stages. Importantly, however, the moment when the recording of memory becomes suspended does not necessarily coincide with evident incapacity. A person may continue to interact socially in ways that can appear equivocal and not remember doing so in the morning.

50On the evidence here, however, I conclude that Mr. Kakegamic was either aware that D.J. was out and therefore not consenting or that she was so compromised that his decision in the circumstances to proceed with intercourse was reckless or wilfully blind.

51Cory Neshinapaise could tell at a glance that D.J. was done for the night and was in no condition to consent to anything. Objectively speaking, his subjective view in that regard is the only reasonable conclusion that could have been drawn in the circumstances. In my view, anyone who cared to turn his mind to the question would have immediately come to the same decision. At minimum, Mr. Kakegamic, who was around when D.J. was drinking whiskey over the course of several hours would have appreciated the need to make some basic inquiry into the subject. It is clear to me at the very least that Mr. Kakegamic deliberately chose not to make such inquiry because he did not want to know the truth. Had Mr. Kakegamic turned his mind to things as he should have he would have seen what was plain to see: D.J. was in no condition to consent to sex. He knowingly acted, therefore, without her consent when he performed sexual intercourse upon her.

52I find that the Crown has proven all essential elements of sexual assault beyond a reasonable doubt. I find Milloy Kakegamic guilty.