Whitehorse Daily Star

MLA's testimony evasive': Crown

Justice Leigh Gower will reserve his decision on the four indecent assault charges against Copperbelt MLA Haakon Arntzen until Friday.

By Whitehorse Star on May 9, 2005

Justice Leigh Gower will reserve his decision on the four indecent assault charges against Copperbelt MLA Haakon Arntzen until Friday.

Gower listened to closing arguments in Yukon Supreme Court last Friday morning from Arntzen's lawyer, Ed Horembala, and Crown prosecutor John Phelps. Afterward, the justice said he will wait the week to deliver his decision.

The allegations against the 58-year-old MLA date back to alleged incidents between 1972 and 1980. The identities of the two female complainants are protected by a publication ban.

In presenting his closing arguments, Horembala initially spoke to the first charge.

'At the very least, you should have a reasonable doubt,' Horembala told Gower.

One complainant told the court that when she was around eight or nine years old, she'd been at a gathering where she hid in the basement. She testified she was found by Arntzen, who pulled the nightgown she was wearing up around her neck and touched her.

When Arntzen took the stand, he said that and the other allegations aren't true.

Horembala argued Gower must consider what the probability is that Arntzen would take the opportunity when there is a group of people in the house.

He also argued there is no evidence from another witness who was at the house at the same time that she recalled anything about the incident.

By her own admission, Horembala said, the complainant had a problem sleepwalking.

As Phelps pointed out though, the question of whether she could have been sleepwalking and imagined the incident had been put to her.

'She said, Absolutely not,'' Phelps said.

He also argued it wasn't until Arntzen was under cross-examination he said there was a furnace and boxes in the basement. In his initial testimony, he said the basement was empty, Phelps pointed out.

The complainant was forthright and presented her testimony in an honest manner, he said.

The second count of indecent assault allegedly happened over a number of years, court was told. The complainant testified Arntzen would at time grind his groin into her or French-kiss her at other times.

Horembala argued that Arntzen would have been at work at times when many of the incidents were alleged to have happened.

During his closing arguments, Phelps pointed to evidence that Arntzen had other staff working for him and at one point left another person in charge when he was off work for a time.

Gower asked a number of questions about the charge, pointing to an RCMP statement Arntzen made about the timing.

Horembala argued it's important for the judge to consider the context in which Arntzen was speaking to police.

He had been contacted by police earlier in the day to come down to the detachment. It was only then he learned of the charges against him, then made the statement to police.

This is someone who is being asked to recall situations approximately 25 years ago in less-than-ideal circumstances, Horembala said.

'He's giving an answer in that context,' he said.

Horembala pointed to evidence there may have been other people in the room when some of those incidents occurred.

If that's true, the court would have heard about them from another witness who testified.

As Phelps pointed out, however, that witness wasn't challenged during her cross-examination.

'Mr. Arntzen was evasive in his testimony,' Phelps argued.

When asked for an example of the evasiveness, he pointed to the evidence of his work schedule.

Gower also questioned Horembala on evidence of others hearing the complainant telling Arntzen to stay away from her. Horembala said she could have told him to stay away from her for a number of reasons.

'That's not the only inference your lordship should draw,' he said.

Phelps pointed out Arntzen denied the complainant told him to get away.

'The picture painted by Mr. Arntzen is completely different,' he said.

The third count is a situation where there are two versions, Horembala said.

The complainant testified that Arntzen had pinned her up against a wall, making sexual comments to her.

She said after she was able to get away, he followed her down a street in his car and forced her into the vehicle. He then proceeded to tell her not to say anything about the incident to anyone, she told the court.

Horembala also noted the complainant testified Arntzen was still French-kissing her and grinding his groin against her during this time period. He argued it wouldn't be difficult for someone else to see that when it happened.

But Phelps noted that if the kiss was quick, it may not have been seen.

The fifth count deals with the complainant who said she was sleeping when she felt a hand on her breast. She said she glanced up to see Arntzen's face. When she tried to move to scare him away, his hand remained.

Horembala argued Gower should have concerns about her evidence because she said she recalled the incident from her body memory. He said he never heard of anyone testifying they recall a situation because they've stored it in their body.

The complainant testified she had stored the memory in her pancreas and groin.

Gower pointed out it's not uncommon for an athlete to say his or her body might remember a movement.

'I believe this is uncommon,' Horembala said, noting it's the mind that controls a body's movement.

Gower questioned why it would be uncommon for her to make a connection between what happened and her groin. At the very least, it raises a reasonable doubt, the lawyer argued.

It would be wrong to take the experience of an athlete remembering body movement and say the same thing about a witness recalling an incident, Horembala suggested.

The other complainant testified she had been in the bed at the time of the incident, but Horembala argued she told police that she was half-asleep at the time and wasn't fully aware of what was happening. With that, he said, evidence has to come from the complainant it happened to in that charge.

He then argued that evidence raises a reasonable doubt because it comes from body memory.

In his closing submissions, Phelps argued body memory is not unheard of to such a degree it would raise a reasonable doubt.

'She was unshaken in cross-examination,' he said, noting the memory she derived of the location was consistent with the testimony of other witnesses.

While Horembala did not raise the issue of collusion between the two complainants during his closing arguments, Phelps opted to address it in his.

During the trial, it was learned there were three meetings between the two complainants and their territorial victim services workers.

Phelps noted the evidence showed the two complainants were extremely careful not to disclose information about the circumstances to either.

The meetings were held as a support for the pair, with them being advised circumstances couldn't be discussed, the victim services workers testified.

As it became more clear the matter was proceeding with police, the meetings were brought to an end, with the third one being held mainly to inform the complainants of the sessions' conclusion, the two victim services workers testified.

All four who testified on the meetings were consistent and credible, Phelps told the court, describing the issue as a 'red herring'.

While Horembala pointed out Arntzen and one of the complainants socialized after she was an adult, Phelps took issue with Arntzen describing it as a positive relationship.

'He paints that there was this positive relationship,' he said.

Horembala countered a person may believe a relationship is positive when it actually isn't. If a person is talking behind someone's back, they may not realize the relationship isn't good, he said.

The closing arguments wrapped up early Friday afternoon.

Arntzen was elected as a Yukon Party MLA in 2002. After the charges were laid against him in the spring of 2004, he left that party's caucus to sit as an independent across the legislature's floor from the government.

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