Editor’s note: This story contains graphic details that may be offensive to some readers.
An Iqaluit man has been found guilty of sexual assault in a case that hinged on whether his victim was able to give proper consent to sexual activity and whether the offender “had an honest but mistaken belief in her consent.”
Newkinga Kownirk, age 40 at the time of his offence, invited his 30-year-old victim to his mother’s apartment, where he was living, on May 1, 2020. The two had met for the first time that morning outside the Northmart store. Kownirk said she was outside the retail outlet while he was in the passenger seat of a vehicle. He made a motion to her with his hand and arm simulating drinking and asked her to pay a visit.
Coming from another community, she testified that she was interested in going drinking and enjoying her time in Iqaluit, so she went.
They drank beer with the accused’s mother at the apartment.
The victim said she blacked out at some point. She testified that the sexual activity took place in the bathroom, although there had been no talk about it beforehand. She said when she regained her senses, Kownirk was smiling during the intercourse and when she told him to get off of her, he did.
“I didn’t think he would do that to me,” she told the court, clearly upset.
She later made a statement to the RCMP about the incident and went to the hospital on May 4. However, a rape kit produced no useful DNA evidence.
Kownirk testified that he didn’t think the victim was all that drunk — he estimated that she’d consumed four or five beers. He said he was “buzzed” after consuming four to five beers himself. He admitted that he followed the victim to the washroom after his mother stepped out of the apartment for about 20 minutes.
His version of events was that he asked the victim if she wanted to make out and she said it would be all right. When cross-examined, he said his question was, “Can we do it?” The sexual activity, which included vaginal and anal intercourse, began in the bathroom but moved to the bedroom, he said. Kownirk added that he stopped when she told him to stop. She then left.
There were no other witnesses in the trial.
Justice Gregory Mulligan noted that the Crown has the burden of proof beyond a reasonable doubt as “an accused person is not required to prove his innocence and the burden of proof never shifts to an accused person.”
The judge added that the case “is not a credibility contest between a complainant and an accused person,” and he cited case law that is relevant.
Kownirk was on trial for this incident on Nov. 19, 2021, facing charges of sexual assault, failing to comply with a probation order and failing to comply with a release order.
Mulligan delivered his verdict on March 18. He considered the fact that the sexual activity was “invasive in nature” and resulted in “an enhanced risk to (the victim’s) health and safety.”
He found that the victim’s response in those circumstances “was not activity-specific and not an agreement to sexual activity of an unspecified scope.”
“Therefore, I am not satisfied that Mr. Kownirk took reasonable steps,” Mulligan ruled. “I find that there is no air of reality to the defence of honest but mistaken belief in consent… I accept (the victim’s) evidence that she had gaps in her memory from alcohol consumption and only regained awareness when sexual activity began in the bathroom, a place where (she) was in a private space. There had been no prior talk about sexual activity.”
Mulligan described the Kownirk as “wilfully blind in the circumstances.”
He found the offender guilty of sexual assault and of failing to comply with a probation order. The third charge was stayed.
A sentencing hearing is scheduled for April 29 in Iqaluit.