Three Nunavut men acquitted on 1980s gang rape charges
“I hope the complainant understands that my finding does not mean that what she believes happened did not occur"
Three Cambridge Bay men are off the hook on charges of raping a nine-year-old girl in an incident alleged to have occurred more than 30 years ago.
In a written decision dated Jan. 24, Justice Earl Johnson decided it would be “dangerous to convict” Jack Ekpakohak, James Ekpakohak and Allen Kanayok, partly because of a dubious sex assault claim the woman, now 41, made years ago.
The complainant may not be identified.
The three men were accused of drunkenly entering her bedroom while she sat doing homework some time between April 1980 and June 1982 in Cambridge Bay.
One of the men — either James or Jack Ekpakohak — is alleged to have entered the room, where he asked why she was doing homework. The man left, but returned, and called for the other two to come in.
That’s when the woman alleges that they pinned her down and took turns raping her.
The three men were charged with rape and statutory rape, two crimes that existed until 1983, when the offences were consolidated under the sexual assault sections of the Criminal Code.
But the Crown failed to fully prove its case, Johnson said, and he acquitted the three men.
The judge took into account an incident 16 years ago when the same complainant misled police by making a false allegation of sexual assault. She was charged in 1997 with public mischief, and was sentenced to three months in jail.
But that doesn’t necessarily mean that a gang rape of the type described in this case didn’t happen, Johnson wrote.
“I hope the complainant understands that my finding does not mean that what she believes happened did not occur. It simply means that the Crown has failed to meet the burden of proof,” Johnson wrote in his decision.
“The complainant’s evidence suffers from a lack of context and there are significant inconsistencies as identified by counsel of the accused.”
All three defence lawyers questioned the complainant’s memory and her inconsistent testimony in a judge-alone trial held Nov. 5, 2013 in Cambridge Bay.
Jack Ekpakohak’s lawyer, Paul Falvo, argued that the woman remembered getting a glass of water and seeing her brother passed out before the alleged rape, and also what clothes she wore that night — but couldn’t remember which of the men entered the room first.
“Falvo submitted that she may have needed to find a scapegoat for her life, which included a number of convictions and difficulties,” Johnson wrote. Court heart that the woman criminal record contained 11 convictions dating between 1995 and 2010.
The woman also said she closed her eyes during the rape, something James Ekpakohak’s lawyer, Leslie Moore, said is an example of her having “tailored her answers to fit into the questions.”
“She testified that when she was being raped she closed her eyes so she could not say who was doing what,” Johnson’s summary of Moore’s submissions said.
“She never said anything about the order in which it took place, nor who was holding her, and made very general comments that all three were raping her.”
Allen Kanayok’s defence lawyer, Deanna Harris, said her client didn’t even know the complainant until she was 14. Harris also said the woman had been a “heavy drinker for much of the past 30 years,” which may have affected her memory.
The only one of the three defendants to testify — Jack Ekpakohak — “reluctantly admitted” to drinking home brew with the woman’s mother at her house, and that he was close to James and Allen.
But he said he never drank at the house between 1980 and 1982.
Ekpakohak said that he “never had any problems with the complainant.” Just a few days before the trial began, and despite a no contact order between the two, he let the complainant borrow $20.