Appeal court upholds conviction of Nunavut man who sexually assaulted his sister
Man was convicted in 2016 jury trial
Warning: Some readers may be disturbed by details in this story.
(Corrected April 16, 2019)
The 2016 conviction of a Nunavut man who sexually assaulted his sister after an alleged sexual assault on her male partner for which he was eventually acquitted will stand, a three-judge panel of the Nunavut Court of Appeal said in a ruling issued last week.
The man is identified only as “HQ” in the judgment to protect the complainant, his sister, from being identified.
He committed the crime during a complex incident on Dec. 14, 2013, in an unidentified community of about 1,600 people located somewhere in Nunavut.
Following a second trial, HQ was acquitted on a charge of aggravated sexual assault, in which he was alleged to have used a broomstick to sodomize his sister’s partner, a man identified only as “MA.”
Moments after the sexual assault on MA was alleged to have occurred, HQ turned to his sister, known only as SQ, and sexually assaulted her. A jury convicted him of that crime, in a trial held before Justice Bonnie Tulloch.
But the conviction for sexually assaulting his sister, and the process leading up to the November 2016 trial, was complicated by an allegation that SQ herself had been charged with participating in a sexual attack on MA, moments before she became a victim.
She didn’t tell police about that allegation immediately though.
“SQ admitted that she never told the investigators about the appellant’s assault on her until she gave them her third statement. It was also around this time that SQ recalled that she and the appellant had sodomized MA with a broomstick on December 14, 2013,” the judgment said, in a section that summarized some of the evidence she gave in court.
Crown lawyers eventually withdrew the sodomy charge against the woman in July 2017, on the grounds that they were unlikely to get a conviction on it.
But during HQ’s November 2016 trial on the sexual assault of his sister, the Crown put evidence of the alleged attack on his sister’s partner in front of the jury—and defence lawyer Alison Crowe did not object to it being admitted.
That decision by Crowe eventually became one of the reasons that two other lawyers later appealed HQ’s conviction.
Another reason they appealed the conviction is that the Crown also failed to disclose a piece of evidence to the defence: a draft report from a psychologist on SQ’s memory and the effects of alcohol-fueled blackouts.
Yet another reason for the appeal was that HQ’s brother, JQ, saw the chair of the jury talking to SQ at the local co-op, raising potential questions about the impartiality of the jury.
But the three judges on the appeal court—Justice Shannon Smallwood, Justice Thomas W. Wakeling and Justice Michelle Crighton—dismissed the appeal, and filed their 11-page judgment at the Nunavut court on Wednesday, April 10.
First, they said Crowe’s decision not to object to the admissibility of the sodomy evidence did not amount to “discreditable conduct” on her part.
That’s because she used that evidence in a way that helped her client and that she had “sound tactical reasons for doing so,” the appeal panel found.
“Indeed, defence counsel used this evidence effectively to diminish the credibility of the complainant’s evidence about what happened on December 14, 2013,” their judgment said.
That’s because SQ wasn’t sure if she took part in sodomizing her partner, and Crowe used that to call the credibility of her evidence into question.
“She acknowledged that she was unsure if she actually assaulted her partner, or only dreamt about it, or absorbed it into her memory because her mother told her it had happened. This would have caused the jurors to consider whether the same conditions may have accounted for her evidence that the appellant sexually assaulted her,” the judgment said.
And on the Crown’s non-disclosure of the psychologist’s report, the appeal court said the evidence in the report could not have affected the trial.
“The report provided no insights that would have benefited defence had the report been disclosed to the defence,” the judgment said.
They also said the charge arose from a single incident and that it was essential to the narrative that the jury hear about the alleged attack on SQ’s partner.
“In these circumstances the jury had to be made aware of the allegation that the appellant, not SQ, sexually assaulted SQ’s spouse. Otherwise the jury would have been left with a false impression,” the appeal panel said.
On the third ground for appeal, the alleged jury tampering, the appeal court found that could not have affected the verdict.
“This is a very small isolated community—1,600 residents—and contact between its members of the kind that occurred here must be an everyday occurrence,” the judgment said.
After dismissing the appeal, the panel of three judges ordered HQ to surrender himself into the custody of the RCMP by 1 p.m., Monday, April 15.
HQ had also been indicted for incest and sexually assaulting SQ in an incident alleged to have occurred in 1997. But on those charges, the jury found HQ not guilty, the judgment said.
An earlier version of this story reported that HQ was found guilty of an aggravated sexual assault on MA. Nunatsiaq News has learned that HQ was acquitted on that charge in a second trial.
R v HQ, 2019 NUCA 02 by on Scribd