2016 QCCQ 7308, 2016 QCCQ 7308

R. c. Ashevak 2016 QCCQ 7308 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ABITIBI NORTHEM VILLAGE OF SALLUIT Criminal Division No: 640-01-027497-123 DATE: March 8, 2016 ______________________________________________________________________ BY THE HONOURABLE PAUL CHEVALIER, J.C.Q. ______________________________________________________________________ THE QUEEN, v. JAIMISIE ASHEVAK ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr.

Jaimisie Ashevak is charged with sexually touching the body of X, a person who was 3 years old on or about May 19, 2012. [ 2 ] Ms. L.

O., the child’s mother, says that she left her daughter around 11 pm at the accused’s place to be baby-sat while she went drinking with friends elsewhere. [ 3 ] When she returned the next morning to pick her up, she noticed that the child’s facial expression had changed. [ 4 ] She went at a friend’s place, asked her daughter why she was feeling strange and the child, pointing “down there” (at her vaginal area) with her head and her finger, said “it was hurting like a toy”. [ 5 ] Ms.

O. went to the bathroom with her child, saw that the child’s underwear was bloodstained and that her vagina was red with dry blood around it. She asked her daughter who had done that to her and the child answered “the man with the glasses”. The evidence clearly shows that accused was the only one who wore eyeglasses when the child was there. [ 6 ] Ms. O. had put fresh underwear on her daughter in the morning of the 18 th .

It was the first time she noticed bloodstain on her daughter’s underwear and that the child complained of having pain in that area. [ 7 ] A few days later, she went to the nursing with her daughter who still had redness in the area. The nurse concluded that what she saw could be compatible with a urinary infection or with a vaginal infection as well as with a sexual assault. [ 8 ] It took about a month before the child stopped complaining. [ 9 ] Ms.

Nayumie Kadjulik, accused’s girlfriend since 1995, says that she took care of X while baby-sitting her and that the child played with her own two daughters until they went to bed, the three of them on the same bed in the living room. [ 10 ] The accused was the first one to go to bed and Ms. Kadjulik went to bed after everyone, at around 4:30 am, with the accused on an other bed in the living room. When she woke up, X was playing with toys with the witness’ younger daughter in the living room. She was fine and never complained about anything. [ 11 ] Ms.

Kadjulik, a Crown witness, being examined in chief, said that she asked accused, after he was arrested for this case, what he had done and that accused denied having done anything. [ 12 ] This answer does not constitute self-serving evidence and is admissible, as decided by the Ontario Court of Appeal who said, in the case of C. (N.P.) : “Second, the appellant contends that the trial judge should have directed the jury that the appellant's assertion to Ms. C. that he had not sexually assaulted P.S. during the incident in the living room could be used as proof of its contents. Because Ms.

C. testified about this statement while being examined by the Crown, it is admissible as an out of court exculpatory statement capable of raising a reasonable doubt as to the appellant's guilt.” [1] [ 13 ] Considering the whole of the evidence, the fact that the child appeared fine to Ms. Kadjulik when she left, that she had never complained of anything to her, that she was playing with toys with Ms. Kadjulik’s younger daughter before being picked up by her mother, and more particularly the notes of the nurse as to the possible origin of the child’s redness in their vaginal area as well as the

exculpatory statement of accused, the Court cannot be convinced beyond a reasonable doubt of accused’s guilt. [ 14 ] The accused is therefore acquitted. __________________________________ PAUL CHEVALIER, J.C.Q. Me Marie-Josée Barry-Gosselin For the Crown. Me Joannie Jacob, For the accused. Dates of hearing: October 2 and 3, 2014; December 9 and 10, 2015