A Manitoba judge has convicted a former health-care aide of sexually assaulting an elderly, physically vulnerable personal care home resident, flatly rejecting the man’s claim the victim’s silence amounted to consent.
"That is clearly not the law," provincial court Judge Wanda Garreck told 69-year-old Kevin Noakes on Thursday.
Noakes, who acted as his own lawyer at a trial last summer, was a part-time aide at Oakview Place in Winnipeg. The 68-year-old victim had moved into the facility three weeks prior to the Nov. 3, 2018, assault.
The woman, who died in October 2019, suffered from a host of health issues, including Parkinson’s disease.
In the absence of the woman’s testimony, Garreck accepted into evidence her video police statement, recorded 11 days after the assault.
"The biggest concern, of course, is that (the video statement) was unchallenged by cross-examination because of her unavailability," Garreck said.
The woman, appearing gaunt and frail on video and years older than her age, told investigators a man wearing "baby-blue scrubs" took her to the bathroom shortly after midnight and then walked her back to her room, which she shared with another resident at the St. James neighbourhood facility.
The man pushed her backwards onto the bed, "Said he wouldn’t hurt me," and had sex with her, the woman said.
The woman said she told the man to stop, but the plea was ignored.
When he was done, the man "rolled me over… kissed me on the cheek and said I was his favourite girl," the woman said. "I was still crying and he left."
The woman described her attacker as 30 years of age, with a muscular build.
While that description did not match Noakes, he was just one of two health-care aides on shift that night, and the only male, Garreck said. Semen samples taken from the woman matched Noakes’ DNA, which he did not contest.
"I am satisfied (Noakes) was the male she was describing," the judge said.
Noakes claimed the sex was consensual, telling court in a closing argument last year: "Consent can be given, in my opinion, by not saying anything."
Not true, Garreck said: "But on the evidence of this case, I find she actually did in fact communicate a complete lack of consent, based on the totality of the circumstances, which included her word 'stop,' as well as the fact she was crying."
At trial, Noakes often appeared unprepared, declining opportunities to cross-examine several witnesses, and admitting to not reading large volumes of disclosure provided to him by the Crown. Garreck urged Noakes to consider securing a lawyer, but he declined, telling court he could not afford one and had been turned down twice by Legal Aid.
Noakes agreed Thursday to co-operate with the completion of a pre-sentence report that would detail his personal history, education, work background and other factors the court might take into consideration before sentencing him.
Noakes will return to court for sentencing arguments July 12. He remains free on bail.
Someone once said a journalist is just a reporter in a good suit. Dean Pritchard doesn’t own a good suit. But he knows a good lawsuit.