Nunavut man found guilty in sexual assault case

In a judgment released March 8, Justice Neil Sharkey found the accused did not obtain consent to engage in sexual activity with a young woman. (FILE IMAGE)

The Nunavut Court of Justice has found a Nunavut man guilty of the sexual assault of a young woman while she lay unconscious on his bed.

In a judgment released March 8, Justice Neil Sharkey found Jessie Ningiuk guilty of one count of sexual assault stemming from an incident in January 2016.

The case turned on the Crown’s ability to establish that Ningiuk did not obtain consent to engage in sexual activity with the young woman.

Just after 8 a.m. on Jan. 25, 2016, then 21-year-old Ningiuk invited two women over to his home.

A publication ban is in place to protect the identity of the complainant and her friend; the complainant is referred to as KG and her friend as QM.

The accused and the two women drank vodka together that morning; both KG and QM testified to drinking between six and eight ounces of liquor each, though neither said they were intoxicated.

QM went to the bathroom, at which point KG testified that Ningiuk “stole a kiss” from her and moved her hand to touch his penis. KG, 18 at the time, said she rejected the move and left the room.

The group continued to socialize until about 11 a.m. that morning, when KG passed out or fell asleep on the couch. QM testified that Ningiuk carried KG from the couch to the bed in his bedroom.

QM decided to leave at that point, but before she did, she and Ningiuk engaged in what the court described as “brief consensual sexual activity.”

Before she left, QM moved KG’s belongings to the room where she was sleeping and put a blanket over her friend. “Don’t do anything… don’t touch her stuff,” she testified telling Ningiuk as she left.

KG told the court she awoke at about 5 p.m. that afternoon, naked, with her clothing on the floor beside her. Ningiuk was sleeping naked beside her.

The complainant noticed two used condoms nearby. She discovered discharge on her body and underwear and told the court she felt soreness in her vagina.

KG testified that she felt confused about what had happened and left while Ningiuk was still asleep.

It wasn’t until a week later that KG decided she should go to public health office to get tested for a sexually transmitted infection. She tested positive for chlamydia.

The complainant told the court she text messaged Ningiuk.

“You raped me,” she wrote, to which he replied “I’m sorry. I was really hammered.”

But KG said she later deleted those messages.

At that point, KG decided to tell her boyfriend and father what had happened, and then went to the police to file a complaint.

Ningiuk pleaded not-guilty to the single charge of sexual assault in Nunavut court earlier this year.

During the trial, Ningiuk’s defence argued that KG engaged in consensual sex but only regretted it once she discovered the STI.

The defence also said the Crown was unable to prove the absence of consent.

In his judgment, Sharkey noted section 273.2 of the Criminal Code, which indicates there cannot be consent when the complainant is incapable of consenting to the activity.

An unconscious person or victim cannot consent, Sharkey added, regardless if that person is incapacitated from alcohol or trauma or simply asleep.

While the complainant could not recall what happened between 11 a.m. and 5 p.m. that day, Sharkey said an incident earlier that day—when Ningiuk tried to put KG’s hand on his penis and she pulled away—established that the accused has a sexual interest in KG that she did not reciprocate.

“To be blunt—from the outset, and from this very first sexual overture, it is clear to me that Jessie wanted sex with KG, and that he knew or learned quickly that KG did not share his interest,” Sharkey wrote in his judgment.

“This act itself by Jessie—namely, placing KG’s hand on his penis in an unanticipated fashion without first securing her consent to sexual activity is, itself, a sexual assault, albeit in the context of this case, it is not the activity of primary importance.”

Judge also noted KG’s measured response when the defence suggested to her that she consented to sex and then regretted it later.

“I did not have sex with him,” the trial transcript quotes her as saying. “Even if I… I wouldn’t know if I had sex with him, I don’t remember if I ever did.”

“The act of taking off KG’s clothing is itself a sexual assault,” Sharkey concluded.

“However, in this case that activity is simply part and parcel of the greater violation which I do find that the accused perpetrated—namely, having sexual intercourse with an unconscious victim.”

The Nunavut Court of Justice has yet to set a date for sentencing.

The March 8 judgment comes on the heels of another widely-publicized case of consent, after a Halifax taxi cab driver was found not guilty of sexually assaulting an intoxicated woman in his taxi.

A Nova Scotia court judge ruled last week that the Crown failed to prove beyond a reasonable doubt that the woman did not consent to sexual activity. The Crown has since filed an appeal.

R. v. Ningiuk 2017 NUCJ 06 by NunatsiaqNews on Scribd