Man left Iqaluit halfway house to sexually assault ex-girlfriend as she accompanied infant

A Pond Inlet man who claimed that his estranged ex-girlfriend had consensual sex with him in a washroom at the Baffin Regional Hospital is guilty of sexual assault, Justice Robert ­Kilpatrick ruled this week.

Justice Kilpatrick's written judgment appears to break new ground in establishing what kinds of evidence may be used in Nunavut sexual assault trials.

The man, who at the time was serving a jail sentence at an Iqaluit halfway house for crimes committed against his ex-girlfriend and others, visited the woman at the Baffin hospital on May 4, 2005, more than a year after they had broken up.

It's not clear why the man was roaming around outside the halfway house. Kilpatrick called it an "unauthorized departure" that resulted in the man being re-incarcerated.

The woman had just arrived from Pond Inlet with her infant daughter, who was at the hospital for dental surgery.

After the infant was taken to the operating room, the woman waited inside an empty hospital ward with an adjoining bathroom.

After about 15 minutes, her ex-boyfriend walked into the room, demanding sex.

The woman told the court that she did not want to have sex, and "demonstrated this both verbally and physically to the defendant," Kilpatrick wrote.

The woman said the man pushed her into the bathroom from behind, removed her clothing from the waist down, and took off his pants and underwear.

After having sex with her in a standing position, he asked her to give him oral sex. Then he finished having sex with her on the floor of the bathroom.

To find him guilty, Kilpatrick relied on a type of evidence that is not normally admissible in criminal trials: evidence of the accused person's past misconduct.

Some of this evidence, presented at a trial held Jan. 28, came out inadvertently in the Crown's examination of the complainant, and some of it was brought out by the defence lawyer in an examination of the accused. No voir dire hearing was held to determine its admissibility.

But Kilpatrick said this "context evidence" is relevant to the question of whether the woman consented to sex with the man, and also relevant because it establishes "the existence of a hostile animus or intent on the part of the defendant towards this particular complainant."

And in his judgment, Kilpatrick referred to a growing body of legal opinion that such evidence should be admissible in cases involving sexual assault or domestic violence.

"Domestic violence does not occur in a vacuum; it is highly contextual. The root causes of this violence are deeply embedded in the complex emotional and psychological dynamics of the relationship itself," Kilpatrick wrote.

The court heard that the man lived with his victim for eight or nine years. The relationship ended badly in 2004, when he was charged with a variety of criminal offences, including crimes committed against the woman.

Kilpatrick found, therefore, that the man's many months in jail "would likely have fostered a brooding resentment of the complainant, not a sudden desire for reconciliation and forgiveness."

He also noted that when the man returned to the Iqaluit halfway house that day, he bragged to other people that he had just had sex.

And Kilpatrick pointed out that when asked by his lawyer if he thought the woman wanted to have sex with him that day, the man said "I don't know," and then indicated he ­wasn't sure.

There was no physical evidence, such as torn clothing or bruising, to suggest that the woman fought back.

But Kilpatrick said her limited physical resistance is explained by her fear of the the man, who was still serving time for crimes of violence against her.

In court, the woman said the man was really "nice" when their relationship first started but then turned violent. She said the relationship ended because she was scared of him.

He also noted that the woman continued to cry long after the man left the hospital room.

"This continuing emotional distress is inconsistent with consensual sexual intercourse. It is consistent with rape," ­Kilpatrick wrote.

It's not clear when the man will appear in court to be ­sentenced.

Because of his relationship with his victim, the man's name may not be published or broadcast. The woman's name may not be published or broadcast either.