A Whitehorse man who was found guilty of sexually assaulting a teen earlier but had the verdict overturned due to the trial judge’s errant comments has been acquitted following a second trial.
Jackie James Kodwat went to trial twice on accusations that he’d had nonconsensual sex with an intoxicated teen girl in December 2015 after letting her into his home in Whitehorse’s McIntyre neighbourhood.
He was found guilty after his first trial in 2016, but the Yukon Court of Appeal later threw out the verdict and ordered a new trial after finding the decision by Justice Donald Luther was “founded upon the stereotypical reasoning and speculation regarding the way in which men and women interact to which he referred in his submissions.”
Luther, among other things, had said it was “inconceivable” that an “attractive” teen girl would consent to having sex with a man in his 40s.
During Kodwat’s second trial, which took place Oct. 31 to Nov. 3, Crown attorney Noel Sinclair argued that the girl had been “grossly, profoundly intoxicated” the night of the incident. She’d attended several parties in Whitehorse where she drank to excess, Sinclair said, ultimately ending up wandering around the McIntyre neighbourhood in a “grossly intoxicated stupor” seeking shelter.
On the witness stand, the complainant said that, prior to that night, she’d never met Kodwat. She testified that she had no memory of the incident, only remembering falling asleep in a chair in a bedroom and then waking up in bed next to Kodwat in the morning, but said that she would not have consented to having sex with him.
Kodwat’s defence lawyer Vincent Larochelle, however, argued that all the evidence in the case was “entirely circumstantial,” noting that there was no way to conclusively say how much alcohol the teen consumed nor the impact it would have had on her mental capacity. The only thing that’s known for sure, Larochelle said, was that sexual contact had taken place between Kodwat and the complainant.
In a roughly 40-minute decision delivered via video link Dec. 14, Judge Raymond Wyant agreed with the defence, stating that the Crown had failed to prove, beyond a reasonable doubt, that the complainant did not have the capacity to consent to sexual activity.
The physical evidence was inconclusive and there were no reliable witnesses to speak to the level of the complainant’s intoxication and the complainant, Wyant said. As well, although he acknowledged the complainant was young at the time of the incident and during the trial, Wyant said he found she was not always forthcoming in her testimony, at times only admitting things when confronted by the defence.
“In evaluating whether the Crown has established incapacity to consent beyond a reasonable doubt, the court obviously … needs to look at all of the evidence,” Wyant said. “Yes, (the complainant) had been drinking and was intoxicated to some degree. Yes, she has no memories of the significant events of the night and yes, the act of entering a stranger’s house in the middle of the night is consistent with a decrease in risk awareness, but it this court’s view, all of that is not enough to prove incapacity beyond a reasonable doubt in this case…. As I say, (the complainant) very well might have been, but ‘might’ is not enough. Where there is doubt, as there is here, resolves in favour of the accused.”
Kodwat sat still at the defence table facing the video screen and with his arms crossed for the majority of Wyant’s reasonings until about the last 10 minutes, when the judge’s decision started to become clear. Then, he began to wipe tears from his eye.
“I want to be clear — this court is not saying that a sexual assault did not occur on the evening of Dec. 28, 2015,” Wyant concluded. “This court has a deep concern that Mr. Kodwat, and older stranger to a 16-year-old woman, had sexual relations with her. But concern and suspicion is not enough. The court must be satisfied beyond a reasonable doubt and in this case, while I am satisfied he may be guilty, probable or likely guilty is not sufficient, and I am not satisfied that the onus of proving this guilt beyond a reasonable doubt has been meet. Therefore, the accused is acquitted of the charge.”
Wyant then called for proceedings to be adjourned.
As two officers led Kodwat from the courtroom, he continued to wipe his tears away.
With files from Andrew Seal
Contact Jackie Hong at email@example.com