2015 QCCA 1109, 2015 QCCA 1109

A.N. c. R. 2015 QCCA 1109 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005116-122 (505-01-087201-097) DATE: June 22, 2015 CORAM: THE HONOURABLE NICHOLAS KASIRER, J.A. MANON SAVARD, J.A. MARK SCHRAGER, J.A. A. N. APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT CONFIDENTIALITY NOTICE / AVIS DE CONFIDENTIALITÉ This case was subject to a confidentiality order in the lower Court. / Cette cause faisait l’objet d’une ordonnance de confidentialité en première instance. [ 1 ] This is an appeal from the judgment of the Court of Quebec, Criminal and Penal Division, District of Longueuil (the Honourable Judge Ann-Mary Beauchemin), of November 10, 2011. The trial judge found Appellant guilty of eleven offences which included criminal negligence causing bodily harm ( Sections 221 and 267 (

b) Cr.C . ), unlawfully causing bodily harm (

Section 269 (

a) Cr.C. ), assault with a weapon (Section 267(

a) Cr.C. ), sexual assault (

Section 271 (

a) Cr.C. ), forcible confinement ( Section 279(2) (

a) Cr.C. ) and uttering threats (

Section 264.1(1) (

a) and (2) (

a) Cr.C. ). [ 2 ] For the reasons of Schrager, J.A., with which Kasirer and Savard, JJ.A., concur, the Court: [ 3 ] GRANTS leave to appeal; [ 4 ] DISMISSES the appeal. NICHOLAS KASIRER, J.A. MANON SAVARD, J.A. MARK SCHRAGER, J.A. Mtre Diego Gramajo DIEGO GRAMAJO, AVOCAT For Appellant Mtre Daniel Royer DIRECTEUR DES POURSUITES CRIMINELLES ET PÉNALES For Respondent Date of hearing: February 23, 2015

REASONS OF SCHRAGER, J.A. TABLE OF CONTENTS INTRODUCTION .. 2 GROUND I: Reasonable apprehension of bias . 7

a) Testimony of Appellant regarding the use of the home computer 9

b) Reference to language of testimony . 9

c) Further examples of the judge’s interventions . 10

d) Interventions of the judge which impeded defence counsel from presenting the Appellant’s defence through cross-examination .. 11 GROUND II: Error in the application of the principles governing the testimony of children .. 12 GROUND III: The second step of the test in R. v. W.(D.) 15 GROUND IV: Unreasonableness of the guilty verdict 17

a) Certain factual conclusions . 18

b) Failure to draw proper inferences . 19

c) Miscellaneous criticisms of fact finding categorized by witness . 19

i) V. S. (judgment, paras. 746, 748 and 751-754) 19 ii) Appellant (judgment, paras. 733, 735 and 736) 20 iii) Mother of the victims . 20 iv) X. 20

v) Y. 20 GROUND V: The guilty verdicts on the counts where the indictment relates to Y as the victim are unreasonable . 21 GROUND VI: Error of law regarding charges of criminal negligence causing bodily harm in counts 1 and 14 . 22 GROUND VII: Error in concluding that there existed proof beyond reasonable doubt of sexual assault (count 9), assault regarding the forced haircut and confinement (count 11) 25 GROUND VIII: Error in not providing an interpreter for the accused . 28 CONCLUSION .. 31 INTRODUCTION [ 5 ] This is an appeal from the judgment of the Court of Quebec, Criminal and Penal Division, District of Longueuil (the Honourable Judge Ann-Mary Beauchemin), of November 10, 2011. [1] The trial judge found Appellant guilty of eleven offences which included criminal negligence causing bodily harm ( Sections 221 and 267 (

b) Cr.C . ), unlawfully causing bodily harm (

Section 269 (

a) Cr.C. ), assault with a weapon (Section 267(

a) Cr.C. ), sexual assault (

Section 271 (

a) Cr.C. ), forcible confinement ( Section 279(2) (

a) Cr.C. ) and uttering threats (

Section 264.1(1) (

a) and (2) (

a) Cr.C. ). [ 6 ] The victims in each case were the Appellant’s two children. The events related to the charges took place between July 1998 and March 2009, regarding the daughter, Y, while she was between the ages of 5 and 15 and regarding the son, X, between December 2004 and March 2009, while he was between the ages of 7 and 11. [ 7 ] Appellant immigrated to Canada from Uruguay in 1991. The children were born in 1993 (

Y) and 1997 (

X) of a union with J. P.. Since the couple’s divorce in 2003 until 2008 when she exercised access on alternate week-ends, Ms. P. had little contact with the children who were in the Appellant’s custody. The Appellant’s de facto spouse at the time of the arrest, V. S., immigrated to Canada in 2005 and had lived with Appellant since that date. She was a co-accused but was acquitted on all charges. [ 8 ] Since 2003, Appellant lived in a building which he owned in the vicinity of Montreal, originally containing four apartments, in one of which (combining two apartments) the family resided.

One unit (apartment #3) was vacant at the pertinent time. [ 9 ] In February 2005, Y missed a week of school allegedly with a cold. Given suspicions of abuse, the Directeur de la protection

de la jeunesse (“DPJ”) intervened. Y and X then lived with their mother for six months but no further action was taken; the children returned thereafter to live with their father, the Appellant. [ 10 ] In March 2009, Y visibly upset, confided in one of her teachers who referred her to the school psychologist who in turn referred her to the social worker which led to the involvement of the DPJ who withdrew Y and X from the family home. [ 11 ] An investigation followed and Appellant and Ms. S. were arrested in January of 2010. The Appellant and Ms. S. were charged with twenty-one counts, all stemming from the physical abuse of the two children. [ 12 ] The factual description following is

summary and restricted to the minimum necessary to an understanding of these reasons with a view to respecting as far as possible, the identity and dignity of the victims. [ 13 ] The abuse took place in or around the home and was incited by a perceived need for discipline following behaviour deemed deserving of punishment by Appellant (e.g. lack of respect, poor school grades, unauthorized use of the home computer). [ 14 ] The prosecution’s case rested principally on the testimony of the two complainants, Y and X, as well as on their video-taped statements to the police.

Other witnesses included teachers, DPJ’s representatives, police officers and medical experts. [ 15 ] The proof included testimony of spanking until blood was drawn, cutting with a large kitchen knife, hitting with bare hands resulting in at least one black eye, slaps with a ruler, belt and a shoe, inserting a needle into fingers, toes, tongue and ears (no scars were visible on Y but some physical marks were visible on X according to medical witness); burning forearms, hands and tongue with a hot metal spoke.

Expert evidence did not disclose metal traces on the stove elements which were explained by an expert as inconclusive. There was evidence of forced cold showers of long duration resulting in a loss of consciousness by X on one occasion. There was evidence of cutting Y’s thigh with a kitchen knife and forcing her to run barefoot on the snow, over a field behind the family home. Evidence was adduced of Appellant pulling out Y’s pubic hair as well as death threats and a forced haircut, apparently to remove gum from Y’s hair.

As well, Y was confined intermittently during a three week period in March 2009 in an unoccupied and unheated apartment (#3) in the building where the family home was located. [ 16 ] Both accused testified. The Appellant completely denied all of the foregoing and put forward a defence theory that his ex-wife (Ms. P. - the children’s mother) had conspired with Y to concoct all of the foregoing in order to obtain custody.

X, according to the defence theory was subsequently co-opted to join in the conspiracy. [ 17 ] The judgment of first instance culminated 17 days of trial and is 125 pages in length, containing 859 paragraphs. The initial 705 paragraphs describe in minute detail all the evidence while the analysis in the remaining of 154 paragraphs states the findings of fact and the judge’s conclusions on the offences charged. The factual conclusions arrived at by the judge are as follows: [812] Le Tribunal retient les faits suivants de la preuve entendue : 812.1. M.

N. [Appellant] s’est livré à des sévices corporels à l’endroit de ses enfants Y et X [Y and X] durant la période couverte par l’inculpation alors que la famille demeurait soit à ville B ou à ville A; 812.2. Ces mauvais traitements surviennent dans un contexte d’accès [sic] de colère, de frustration et de punition en regard de comportements jugés inadéquats de la part des enfants ou de résultats scolaires décevants. Les sévices reprochés sont multiples et variés.

Il s’agit notamment : o de claques à mains nues sur le visage; o de coups avec un objet sur les fesses et ailleurs sur le corps; o de l’obligation de prendre des douches d’eau froide ou de demeurer sous la douche très froide pour une période de temps prolongée; o de piqûres à l’aide d’aiguilles de couture au bout des doigts, sur la plante des pieds, à l’intérieur des narines et ailleurs sur le corps; o de brûlures à l’aide d’une tige de métal préchauffée sur la cuisinière, sur les mains, les avant-bras, la langue et ailleurs sur le corps; o se faire tirer et arracher des poils pubiens, dans le cas de Y seulement; o l’obligation de courir à une occasion, pieds nus sur la neige glacée à l’extérieur sur une distance d’environ 75 m, dans le cas de Y seulement. 812.3.

L’emploi de cette force physique par M. N. [Appellant] à l’endroit de ses enfants mineurs n’est pas raisonnable dans les circonstances et ne peut se justifier en regard du droit de correction prévu à l’ art. 43 du Code Criminel ; 812.4. Les enfants n’ont pas dénoncé leur père à des tiers avant mars 2009, par crainte de représailles et considérant également le contexte d’abus d’autorité, de menaces et la culture du secret dans laquelle ils ont appris à vivre depuis leur tendre enfance. 812.5. Leur mère était peu présente dans la vie de ses enfants après le divorce.

Cela étant, elle s’investit davantage à compter de l’été 2008. Son influence, présumée ou réelle auprès d’eux, ne plaît pas à M. N. [Appellant]. Elle est au courant des sévices endurés par eux, sans toutefois en connaître l’ampleur exacte. Elle refuse ou néglige d’intervenir et de dénoncer son ex-conjoint aux autorités, par négligence ou crainte de représailles; 812.6. M. N. [Appellant] a frappé sa fille d’une forte claque ou un coup de poing à l’œil droit le ou vers le 15 février 2005. Cela lui a occasionné une blessure significative constatée quelques jours plus tard par les intervenants de la DPJ;

812.7. M. N. [Appellant] a déjà coupé les cheveux de sa fille dans un accès de colère et de frustration mal contenue dans l’intention de la punir. Un épisode du genre survient en février-mars 2009; 812.8. M. N. [Appellant] a, dans un contexte de punition confiné sa fille contre son gré dans l’appartement #3 à l’étage, par intervalles, durant une période d’environ trois semaines en février-mars 2009. Pour ce faire, il use ou abuse de son autorité parentale et l’oblige à y demeurer seule et isolée du reste de la famille pour de longues heures en vue de la punir ou la corriger.

Elle y consomme ses repas et y dort la nuit sur un petit lit pliant qu’il lui apporte. Il conserve le chauffage au strict minimum et interrompt l’électricité à l’occasion. Toutefois, X [X] peut en sortir pour aller à l’école et à quelques occasions selon l’humeur de monsieur; 812.9. Mme S… [S...] n’a pas commis elle-même de tels sévices corporels à l’endroit des enfants de son conjoint. Cela étant, elle en avait soit connaissance depuis un certain temps ou a fait preuve d’aveuglement volontaire ou d’ignorance délibérée quant à l’ampleur et la fréquence des sévices imposés.

Cela étant, monsieur a agi principalement hors sa présence physique pour perpétrer ses délits. 812.10. Mme S... [S...] tente parfois de s’interposer et de raisonner son conjoint dans le but de l’inciter à cesser ses mauvais traitements sans trop de succès. Sans nécessairement approuver son agir délictuel, elle préfère ne pas s’en mêler et choisit de ne pas le dénoncer aux autorités; 812.11. Mme S... [S...] se trouve en situation de dépendance envers son conjoint durant cette époque. Le Tribunal rappelle que madame a immigré au pays par l’intermédiaire de M. N. [Appellant] qui l’a parrainée.

Elle est en attente d’obtenir des autorités son statut de résidente permanente. Elle est dépendante sur les plans affectif et financier. Elle n’a pas de famille et de réseau social autour d’elle au Québec. Elle ne parle pas couramment le français ou l’anglais. 812.12. Elle connaît le tempérament contrôlant, abusif et colérique de son conjoint et n’ose pas le défier. Cela étant, elle ne réprouve pas suffisamment l’agir délictuel de son conjoint, possiblement en raison de mœurs culturelles différentes. 812.13.

Le 20 mars 2009, les enfants Y et X [Y and X] sont retirés du foyer paternel suite au signalement à la DPJ. [ 18 ] After this

summary of the factual conclusions, the judge continued to examine each count in light of the facts and the legal issues raised. She concluded with findings of guilt on all counts regarding the Appellant. [ 19 ] Appellant’s fifty-page factum attacks the judgment on eight grounds, some of which are developed in minute detail:

I) Reasonable apprehension of bias; II) Errors in the application of the principles governing the testimony of children; III) Error in applying the second step of the test in R. v. W(D) ; [2] IV) Unreasonable verdict;

V) Unreasonable verdict regarding counts of indictments when Y was the victim; VI) Error of law in findings of guilt on counts 1 and 14 (criminal negligence causing bodily harm); VII) Error of law in guilty verdict of sexual assault, assault regarding the hair cut and unlawful confinement; VIII) Infringement of accused’s language rights. [ 20 ] Leave to plead Grounds I and IV was sought after the appeal was initially authorized [3] and was referred to a full bench of this Court. [4] I propose that leave be granted. [ 21 ] I will now examine each of the grounds of appeal raised by Appellant.

GROUND I: Reasonable apprehension of bias [ 22 ] Appellant submits that the judge’s conduct during the trial gives rise to a reasonable apprehension of bias. More particularly, Appellant points to key jurisprudence [5] quoted inaccurately by the judge. This case law deals with the assessment of the credibility of child witnesses. I will examine this point later in these reasons when considering Ground II. However, Appellant has also pointed to a number of extracts from the trial transcripts which, in Appellant’s submission, support an apprehension of bias on the part of the judge.

Appellant points to more than twenty-one such interventions in his factum. Counsel emphasized what he felt were the more egregious incidents during the hearing before this Court and I propose to examine each one of them after a review of the applicable legal principles. [ 23 ] The Supreme Court of Canada has stated that: 36 The presence or absence of an apprehension of bias is evaluated through the eyes of the reasonable, informed, practical and realistic person who considers the matter in some detail (…). [6] 36.

L’existence d’une crainte raisonnable de partialité ou son absence est déterminée par référence à une personne raisonnable, bien renseignée, qui étudierait la question en profondeur, de façon réaliste et pratique […]. [ 24 ] The source of the apprehended bias in R. v. S. (R.D.) was the decision of a Youth Court judge who in delivering oral reasons

referred to overreactions of police officers when dealing with black suspects. The Crown appealed successfully given the reasonable apprehension of bias against the Crown’s witnesses. [ 25 ] The Ontario Court of Appeal refined the doctrine applying it to judicial behaviour during the trial and describing several types of judicial intervention which might occur during a trial and which may give rise to a reasonable apprehension of bias. Thus, in R. v. Valley , [7] the Ontario Court of Appeal described the following types of judicial conduct:

i) questioning an accused or his witnesses to an extent and in a manner which conveys the impression of disbelief or preference for the prosecution’s case; ii) impeding defence counsel from presenting his case by such things as interruptions during cross-examination so as to break counsel’s sequence of questions.

However, conduct is not offensive which, though it may be discourteous to counsel and may indicate impatience, does not invite the jury to disbelieve defence witnesses; such conduct does not give rise to a reasonable apprehension of bias; iii) preventing the accused from telling his story in his own way; iv) discourteous remarks directed at defence counsel which might cause the jury to doubt his professional ability. [ 26 ] Appellant in the case at bar relies particularly on the following dictum from the Ontario Court of Appeal in R. v.

Valley : Interventions by the judge creating the appearance of an unfair trial may be of more than one type and the appearance of a fair trial may be destroyed by a combination of different types of interventions. The ultimate question to be answered is not whether the accused was in fact prejudiced by the interventions but whether he might reasonably consider that he had not had a fair trial or whether a reasonably minded person who had been present throughout the trial would consider that the accused had not had a fair trial. [8] [ 27 ] It must be emphasized that although the principles articulated in R. v.

Valley apply to all trials, that case was an appeal from a jury verdict so that the context of the Ontario Court of Appeal’s remarks is different from the case at bar. The application of those principles must be tempered where there is no jury upon which a judge’s remarks may impact. [ 28 ] The criteria are objective but where the trier of fact is a judge who has rendered a detailed written judgment, one possesses an additional tool to determine whether on the whole there is a reasonable apprehension of bias.

In my opinion, the events invoked by Appellant, considered individually and in the aggregate, do not raise a reasonable apprehension of bias. While there may be some interventions by the judge which were not advisable, others invoked by Appellant were entirely benign and indeed proper as will be seen below.

One must not simply look in isolation at any less than fortunate comment but rather consider the cumulative effect of any such incidents. [9] It takes more than a lack of courtesy or demonstration of impatience to give rise to an apprehension of bias and render a trial unfair. [10] Any impugned comments must be examined in context. [11] Regarding interventions during cross-examination of prosecution witnesses, the judge has a wide discretion to ensure that cross-examination is fair to the witness. [12] The judge is tasked with balancing an accused’s right to a fair trial against preventing unfair cross-examination by (as was the case at bar) asserting incorrectly to a witness what is supposedly in evidence.

Regarding the judgment itself, there is nothing whatsoever to suggest bias. [ 29 ] I will now examine each of the instances invoked by Appellant at the hearing.

a) Testimony of Appellant regarding the use of the home computer [ 30 ] Appellant points to a comment by the judge regarding certain testimony of the Appellant with respect to the house rules regarding the use of the computer as “... c’est long puis c’est pénible”. This occurred when Appellant was explaining at length his view of computers in the education process and contradicting himself as to whether Y was prohibited from using the home computer entirely or somehow restricted.

After several attempts to interject to obtain clarification, the judge called defence counsel to order and reminded him that he commenced the line of questioning to determine Appellant’s rules in the home regarding the use of the computer by the children which, given Appellant’s rambling testimony, had not been established. [ 31 ] In my opinion, it appears that though the judge may have shown some impatience, she was not impeding but rather helping the defence to get its story across because Appellant’s testimony on the subject had not been clear.

The judge was evidently frustrated because the testimony was difficult to follow. She was trying to elicit a clear message from the accused for his own benefit and was becoming frustrated by the absence of that clarity. This does not make out a case of bias. The judge was not impeding the accused from telling his story but rather reminding him that he was failing to convey his message. Thus the judge was helping the accused tell his story. A reasonably-minded person, properly informed of the circumstances, would not perceive this to be a sign of bias.

b) Reference to language of testimony [ 32 ] At one point late in an afternoon, the trial judge interjected as follows: C’est parce que je trouve ça un petit peu dur à comprendre. Puis je ne sais pas, peut-être que vous devriez examiner la question de la langue. S’il veut témoigner en espagnol, on peut le faire témoigner en espagnol. Je ne veux pas que ce soit un argument, ça. [ 33 ] This passage is examined again below in these reasons regarding Appellant’s submissions on the infringement of his language rights.

However, Appellant also raises this passage to demonstrate an inappropriate intervention by the trial judge. This intervention follows rambling testimony and again serves as an example of the judge seeking to understand the point that Appellant wishes to communicate during his testimony. The judge goes on to suggest in a passage not quoted by Appellant that perhaps the Appellant’s testimony is difficult to follow because he is tired so that it would be an appropriate time to adjourn for the day.

This manifestation of empathy demonstrates concern for the accused and his ability to convey his account of events in order that he benefit from a full defence. A reasonably-minded person would not see this as bias.

c) Further examples of the judge’s interventions

[ 34 ] Appellant cites further examples of the judge’s interventions. The accused commences an explanation of the circumstances of a haircut he gave to Y by saying that a girl on the bus had put gum in Y’s hair. The judge comments that this is hearsay and that the hearsay rule applies to the accused’s testimony as it does to the testimony of other witnesses. Defence counsel insists that this is part of the background of the testimony that the Appellant is about to give and the Appellant is permitted to continue by the judge.

Indeed, the judge assists the Appellant telling him that he can testify that Y came home and had gum in her hair. The exchange lasts perhaps a minute. [ 35 ] The judge intervened again when Appellant sought to introduce hearsay evidence that Y had confessed to him that the child’s mother was preparing a “court matter” (“une affaire de Cour”). Defence counsel agreed that the testimony was hearsay and the judge suggested that the accused could testify as to what he thought of the “conspiracy theory”.

The accused went on to testify on the matter and at one point the judge stated: “Ce n’est pas ce que j’ai entendu, moi. (…)” meaning that in the judge’s view, the testimony of the Crown’s witness was otherwise. In any event, she listened to the accused about his theory of the conspiracy. At one point, the accused interrupted himself suggesting that he may be taking too much time and the judge replied: “Le temps, ce n’est pas un considérant, Monsieur.” – (“Time is not a consideration, sir”).

This does not demonstrate bias on the part of the judge but rather is indicative of an appropriate attitude to allow the accused the opportunity to tell his story. [ 36 ] The Appellant also cites examples of the judge intervening to ask defence counsel whether, in a certain line of questioning, there remains much material to cover. This happened in the context of introducing into evidence approximately one hundred family photos, one by one, accompanied by a narrative by Appellant. The intervention of the judge appears from the transcripts to be purely administrative in nature with a view to managing the trial.

When defence counsel answers that there is still some time to go, the judge orders a recess indicating that the question was asked with a view to deciding whether the matter could be completed before a recess was called. Questions of this nature, to determine the timing of a recess, are examples of run of the mill trial management and do not indicate bias of a trial judge. However, Appellant cites this intervention as impeding the accused from telling his story.

The allegation that this intervention went beyond managing the trial process is unfounded. [ 37 ] If I had to point to the potentially most serious intervention, when inquiring as to how long defence counsel foresaw the testimony over the family photos continuing, the judge says: (…) C’est juste que ça ne me tente pas nécessairement de travailler jusqu’à X … Je ne devrais pas dire ça! Correct. Rewind. [ 38 ] It is quite true that the judge, as she points out herself, should not have said this.

The testimony with the family photos for the purpose of showing a healthy, harmonious relationship between the Appellant and his children was long and it appears that the judge had well prior to the statement understood the general idea. She definitely misspoke. However, on the whole, I would not conclude that in the circumstances of this case, a reasonable apprehension of bias arises from this statement. Rather, the statement indicates some impatience with one portion of the Appellant’s testimony.

The cumulative treatment afforded to the accused throughout the trial as well as the consideration of the evidence in the lengthy meticulous judgment rebuts the assertion of bias.

d) Interventions of the judge which impeded defence counsel from presenting the Appellant’s defence through cross-examination [ 39 ] Appellant points to a number of interventions, which made it impossible for defence counsel to properly present the defence. [ 40 ] Counsel confronted X with a supposed contradiction in his testimony concerning what he eats for breakfast and there ensued an exchange as to whether having previously stated that he eats cereal is contradicted by his now stating that he eats oatmeal for breakfast. [ 41 ] Appellant highlights an exchange with the judge over an alleged contradiction in the testimony of X as to whether the needles used by Appellant were stored in a box or a bag.

The judge points out that the alleged previous contradiction in a video-taped statement was not a contradiction at all since the witness corrected himself almost immediately during the previous statement. [ 42 ] The latter two interventions are examples of the judge ensuring that a witness is cross-examined fairly. A reasonably-minded person would not perceive them as a sign of bias. [ 43 ] At one point defence counsel suggested to X that the representative of the DPJ had asked him leading questions but the questions which defence counsel put were vague.

The judge interjected that if defence counsel wished to explore that the DPJ put words in X’s mouth, then counsel was free to be suggestive to X as was his right in cross-examination. Counsel then pursues his examination and suggests to X that he had been prompted by the DPJ. On a proper reading of the exchange, it was the judge helping defence counsel communicate an element of the defence rather than showing bias against the accused. [ 44 ] The prosecutor objected during X’s cross-examination by defence counsel with a view to protecting the witness.

The judge intervened to in effect overrule the objection by telling the prosecutor “Je suis là pour essayer d’équilibrer tout ça, là. Mais je pense qu’à date, c’était correct, là. Il se débrouille bien, [X]”. In other words, the judge states that she will intervene if the cross-examination becomes vexatious but for the time being, it is being conducted in an acceptable manner and X is managing well. The argument of Appellant on appeal takes the exchange completely out of context.

In essence, the judge is overruling the prosecution’s objection and telling the prosecutor that Appellant does not need protection as he is doing well. The comment “Il se débrouille bien, [X]” is not in anyway showing preference for the witness but rather telling counsel that the witness is defending himself adequately against the attacks in cross-examination and an objection is not called for. [ 45 ] During her testimony, Y referred to being obliged by Appellant to work on demolition as part of a renovation project in the house and complains that she had to work like a man.

Defence counsel asked “Does that mean that a woman couldn’t do it?” [13] The judge intervened to offer that it is not merely a matter of her gender but her age as well. The comment is explanatory and neutral and not indicative of bias or preference. [ 46 ] At another point during the trial, the judge cut off defence counsel in what Appellant argued before us was labelled by the judge as a dishonest question. This was not the term used.

Rather, the judge stated that defence counsel, in cross-examining Y, was making an affirmation of what the witness said during examination in chief but that in the judge’s recollection that was not what the

witness had said. After the comment, defence counsel simply rephrased the question and the judge expressed agreement with the newly phrased question. The witness then answers the question. This again is an example of the judge ensuring that cross-examination is fair and is not indicative of bias. [ 47 ] As stated above, the foregoing examples were cited at the hearing of the appeal by Appellant’s counsel as the worst of the lot.

As stated above, looking individually and in the aggregate, these comments and others pointed to by the Appellant in written argument do not give rise to a reasonable apprehension of bias as understood in the jurisprudence.

GROUND II: Error in the application of the principles governing the testimony of children [ 48 ] Appellant argues that the judge in first instance incorrectly applied the principles established by the Supreme Court of Canada in B. (G.) with respect to the testimony of children with the result that the judgment is not supported by the evidence. [ 49 ] Appellant submits that in effect the judge reversed the burden of proof to the detriment of the presumption of Appellant’s innocence.

The judge stated that though the complainants may have, in some instances, subconsciously exaggerated the mistreatment that they received, the exaggerations were without consequence. Appellant enumerates the exaggerations and concludes that the judge went beyond the principles established in B. (G.) regarding the approach of a court to flaws in the testimony of children. [ 50 ] The reasons of Madam Justice Wilson in B. (G.) have become the locus classicus when considering the testimony of children in criminal cases.

In that case, where a young girl had been the victim of a sexual assault, Justice Wilson expressed the view that children should not be held to the same exacting standard as adults in considering their testimony. However, one must not lower the standard of proof required for conviction even when the proof is offered by a child witness. [14] [ 51 ] Two years later, in the case of R. v.

W. (R.) , (“ W. (R.) ”), Madam Justice McLachlin (as she then was) speaking for the Supreme Court of Canada reiterated the different treatment reserved for testimony of children which flows from a common sense approach and an avoidance of rigid stereotypes embodying the unreliability of child testimony.

She added that the assessment of a child’s testimony should be a function not only of the age of the child when testifying but the age when the facts were observed. [15] [ 52 ] Our Court recently applied these principles concluding that contradictions in the testimony of a child are not fatal if the contradictions relate to peripheral matters. [16] [ 53 ] Appellant, in asserting that the judge reversed the burden of proof and thus erroneously applied the guidance in B. (G.) and W. (R.) , states correctly that the trial judge misquoted Justice Wilson in B. (G.) as follows: [781] Dans I'arrêt R. c.

B. (G.), la juge Wilson précise: II se peut que les enfants ne soient pas en mesure de relater des détails précis et de décrire le moment ou l'endroit ou encore le contexte avec exactitude, mais cela ne signifie pas qu'ils se méprennent sur ce qui leur est arrivé et qui l'a fait.

Ces derniers peuvent voir le monde différemment des adultes; il n'est donc guère surprenant qu'ils puissent oublier des détails qui, comme le moment et l'endroit, sont importants aux yeux de l'adulte. [ 54 ] In fact, the first sentence of the above quote comes from Justice Wilson in B. (G.) except for the words « ou encore le contexte » (or “where the context”) which were added by the trial judge.

The second sentence is a quote from Justice McLachlin, at page 133 of her reasons in W. (R.) . [ 55 ] Even though the quote is inaccurate, the principle is correctly explained and more importantly, correctly applied by the judge in first instance. Had the judge decided to paraphrase Justice Wilson instead of including a direct quotation, Appellant would have had no argument here at all. [ 56 ] After referring to the applicable case law, the judge stated that in considering the testimony of a victim of repeated and long standing physical abuse, it is important to keep in mind that the accused is presumed innocent.

More significantly, the judge correctly applied the principles in not insisting that the child victims relate the date, hour and place of each incident of mistreatment; to the contrary the judge declared that she was satisfied with the credibility of the two victims and did not over emphasize certain inaccuracies in their testimony. For example, X was not able to report accurately the duration that the hot metal was placed on his skin, contradicted his sister on the number of his fingers that had been pierced with a needle and gave conflicting testimony on his reaction to being pricked with the needle.

This, however, did not change the fact that the judge believed that these events actually occurred. Similarly, concerning Y, contradictions concerning the duration of the application of the hot metal to her skin or the depth to which the needles were inserted in her tongue or nose did not change for the judge that this mistreatment occurred. As well, testimony on the duration of the forced confinement, the availability of electricity and degree of isolation in apartment #3 as well as the school grades of Y were correctly considered as peripheral by the judge. [ 57 ] In

summary, concerning this ground, the judge correctly applied the principles regarding the testimony of child witness/victims.

Appellant has failed to point to an instance in which the misquotation of Justice Wilson’s reasons had any palpable effect. [ 58 ] Appellant also submits that a reasonable person looking at the misquote from B. (G.) by the trial judge would come to the conclusion that the trial judge failed to consider properly the issues regarding the testimony of child victims and thus the trial has been tainted and the verdict must be set aside. [ 59 ] In this regard, Appellant relies on the judgment of the Supreme Court of Canada in Cojocaru v.

British Columbia Women’s Hospital and Health Centre . [17] That was a civil case where the judge in finding medical staff liable in a multi-million dollar negligence claim extensively incorporated counsel’s written submissions into the judgment such that the medical staff questioned, on appeal, the impartiality and integrity of the process. The Supreme Court of Canada held that the threshold to set aside the presumption of judicial integrity is a high one.

Ultimately, the objective test is whether a reasonable person would conclude that the alleged deficiency in the judgment, taking account of all the circumstances, demonstrates that the decision-making process was unfair in the sense that the judge

did not put her mind to the facts, arguments and issues and decide them impartially and independently. [18] [ 60 ] In the case at bar, the misquote combines, as stated, two (relevant) sentences by Justices Wilson and McLachlin, of the consideration to be given to child testimony. The other inaccuracy in the quote is the addition of the phrase “where the context”. [ 61 ] On a reading of the judgment in first instance as a whole, and specifically the

section dealing with the treatment to be given the testimony of the child witnesses, a reasonable person would not think that the judge applied the law incorrectly. The error has all the appearance of a clerical mistake and in no way suggests a misunderstanding of the law and even less a wilful misapplication of the law. There is nothing to suggest, as was argued in Cojocaru , anything akin to abdication of the judicial role requiring independent and impartial consideration of the matter submitted for adjudication. [ 62 ] In view of all of the above, this ground of appeal cannot succeed.

GROUND III: The second step of the test in R. v. W.(D.) [ 63 ] As a third ground, it is alleged that the judge limited her analysis to the question as to whether the Crown had rebutted the defence’s conspiracy theory rather than asking herself whether the evidence offered by the defence raised a reasonable doubt in her mind.

Such approach by the judge constituted an error in law in Appellant’s submission. [ 64 ] We are invited to conclude that the judge limited her analysis to considering the defence theory of conspiracy between the victims and their mother rather than analyzing all of the proof and determining whether there existed reasonable doubt. [ 65 ] The judgment of the Supreme Court of Canada in R. v. W.(D.) [19] (“ W.(D.) ”) is the leading case concerning instructions to be given to the jury when the prosecution and defence versions of the facts are in direct contradiction. Mr.

Justice Cory suggested directives to the jury in the following manner: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 66 ] Since the judgment in W.(D.) was rendered, the case law has systematically followed the foregoing guidelines for jury instructions given by Justice Cory, although this dictum is generally understood not as a strict formula but rather as a general guideline for the instructions. In R. v.

S. (W.D.) , [20] Justice Cory stated that his three prong formula above was not sacrosanct or obligatory. He emphasized that what is important is not to present contradictory versions as alternatives because that would lower the standard of evidence to which the Crown is subject. [21] In R. v. C.L.Y. , [22] Justice Abella of the Supreme Court of Canada underlined that judges are not called to servile adherence to the instructions suggested in W.(D.) . In the same year, Justice Binnie in R. v. J.H.S. [23] came to the same conclusion. In R. v.

Szczerbaniwicz , [24] the Supreme Court confirmed that it is the substance of adherence to the test and not the literal words used to instruct the jury, which are important. In Péloquin v. R. , [25] this Court, on appeal from a judge sitting without a jury, observed that what is important is that the appropriate burden and standard of evidence are applied and not the manner in which this might be expressed.

This has recently been confirmed yet again. [26] [ 67 ] On this subject, the judge in first instance in this case, said the following: [756] Le Tribunal doit maintenant se demander si la preuve offerte en défense suscite néanmoins un doute raisonnable dans son esprit quant à la culpabilité des accusés.

Malgré ma conclusion selon laquelle leur témoignage n’est pas crédible et digne de foi, est-ce que la thèse du complot et de la collusion entre les enfants et leur mère pour faire de fausses allégations de sévices corporels peut être raisonnablement plausible ? [Emphasis added] [ 68 ] The judge then goes on to discuss the defence’s conspiracy theory.

It is true that most of what the judge wrote is directed at the conspiracy defence but the judge did make it clear that she was referring to all of the proof in determining whether she was convinced of guilt beyond a reasonable doubt: [768] Le Tribunal conclut également que la thèse du complot et de la collusion entre les enfants et leur mère pour faussement incriminer leur père n’est pas digne de foi et ne suscite aucun doute raisonnable dans son esprit. [769] La preuve offerte en défense évaluée en regard de l’ensemble de la preuve ne suscite pas de doute raisonnable dans mon esprit. [Emphasis added] [ 69 ] Accordingly, the judge properly articulated and applied the rule in W.(D.) and considered all of the evidence in determining whether there was reasonable doubt in her mind as to the Appellant’s guilt. [ 70 ] It must be stressed that the judge did not believe the Appellant and gave cogent reasons for this.

Where the defence is total denial such as here, not believing the accused generally leads to the conclusion that the defence has not raised reasonable doubt in the mind of the judge. [27] On a reading of the judge’s detailed judgment, this is self-evident. GROUND IV: Unreasonableness of the guilty verdict [ 71 ] Appellant contends that the verdict is unreasonable [28] and has put the judgment of first instance under a magnifying glass through 17 pages of his factum before this Court.

[ 72 ] It is only where a court of appeal having considered all of the evidence concludes that a guilty verdict cannot reasonably be supported by that evidence that the judge’s verdict can be overturned. [29] Intervention in appeal is warranted only where there is a flaw in the evaluation of the evidence leading to an unreasonable conclusion. [30] In this sense, a court of appeal must not only assess the sufficiency of the evidence but must also weigh the evidence and consider “through the lens of judicial experience” whether the conclusions of the jury (or judge) is precluded in the circumstances. [31] Equally, a court of appeal should not substitute its opinion on credibility for those of the trial judge when there is a reasonable basis for the judge’s findings. [32] [ 73 ] The review for unreasonableness is wider for verdicts of judges sitting without a jury for the practical reason that judges give reasons for their findings which an appellate court may consider as part of its analysis. [33] However, the Court of Appeal should not intervene merely because it has a doubt when the trial judge did not. [34] The exercise in appeal is not to conduct a retrial on paper. [35] [ 74 ] Unfortunately, that is what Appellant invites us to do in a rambling, nitpicking of the judgment in first instance.

Appellant presents little precision as to the factual conclusions reached by the judge that are allegedly wrong and how they formed part of the reasoning leading to the guilty verdict. Neither is there any attempt to tie any particular argument raised to any specific count in the indictment. Nevertheless, I will speak to this myriad of reproaches in a framework which is my own since none appears from Appellant’s factum.

However, once this exercise is completed, the ultimate conclusion is inescapable that a judge or jury acting in a reasonable judicious manner could have arrived at guilty verdicts on the counts of the indictment against Appellant.

a) Certain factual conclusions [ 75 ] Appellant reproaches the judge for having come to the following factual conclusions:

i) No conspiracy existed between the complainants and their mother to falsely accuse the Appellant (judgment, paras. 766 – 769); ii) Y did not recall having left apartment #3 during the period of her forced confinement (judgment, para. 803); iii) Y’s school grades were average (judgment, para. 291), very good (judgment para. 454) or below average (judgment, para. 394); iv) X’s grades were poor (judgment para. 684). [ 76 ] Point number

i) above is essential to the verdict since it would in itself be sufficient for an acquittal had the judge believed that such a conspiracy existed or entertained reasonable doubt in such regard.

However, there were many factual elements which ruled out the existence of the alleged conspiracy: i.e. the creditworthiness in the judge’s opinion of the testimony of each victim, the mass of factual detail reported by each victim, the fact that the details of the abuse were so uncommon as to defy the allegation of invention, the similarity of the descriptions of the abuse by the victims, testimony of two examining physicians confirming physical evidence of certain forms of abuse, the interventions by the DPJ and school staff upon observing Y and the mother’s unsupportive conduct towards the victims during the pertinent time period. [ 77 ] It was not unreasonable for the judge to rule out the conspiracy theory and conclude that it did not raise a doubt in her mind. [ 78 ] Point ii) above (Y leaving apartment #3) is immaterial since in law the confinement need not have been continuous over three weeks to make out the infraction under

Section 279 Cr.C . [36] [ 79 ] Points iii) and iv) (school grades) above are not essential to the verdict on any of the counts and only had relevance to explain the Appellant’s fits of anger giving rise to the mistreatment.

b) Failure to draw proper inferences [ 80 ] Appellant reproaches the judge for having drawn (or failing to draw) certain inferences and conclusions in various factual matters as follows:

i) Y lied to educators about the origin of her eye injury; ii) There was no collusion concerning where Appellant kept the needles. [ 81 ] Concerning number

i) above, the judge concluded that Appellant struck Y causing the black eye so that her explanation of an accident given at school was fabrication. However, this so-called “lie” melds completely with the situation of the mistreatment of the complainants.

It does not undermine the reasonableness of the verdict but rather reinforces it since it is consistent behaviour of a child intimidated by an abusive parent. [ 82 ] Again, on point ii), certain inconsistencies between the testimony of the complainants concerning the place where Appellant kept the needles does not undermine the finding that each child was tortured with the needles. [ 83 ] The critique here by Appellant is on fact finding (see paras. 439 and 470 of the judgment) but the paragraphs mentioned by Appellant are summaries of evidence tendered and not conclusions on questions of fact arrived at by the judge. [ 84 ] Ms.

Rodriguez who was a companion of Appellant for a few months during 2003 – 2004 spent some week-ends at the house. She testified to not having witnessed any mistreatment of the children. The judge accepted her testimony as truthful while explaining that she may simply not have been present when the complainants were being abused and that Appellant may have exercised self-restraint during the time when an outsider was present in the home. Again, these are not factual inferences which served to invalidate all of the other findings and the verdicts.

c) Miscellaneous criticisms of fact finding categorized by witness

i) V. S. (judgment, paras. 746, 748 and 751-754) [ 85 ] Here the judge concluded that Ms. S. (the de facto spouse of Appellant) was not creditworthy. Assessment of credibility by the trial judge is not a matter in which a court of appeal will normally intervene. Even setting aside the factual errors alleged by Appellant, the judge still expressed ample reasons to impugn Ms.

S.’s credibility such as evasive and ambiguous answers given during cross- examination. ii) Appellant (judgment, paras. 733, 735 and 736) [ 86 ] Appellant does not specify why the judge’s findings of fact here are illogical but in any event (and again) the facts are peripheral (i.e. home renovations, ongoing intimacy with the mother of the complainants after the divorce) or the facts are observations by the judge demonstrating Appellant’s explosive temper and controlling behaviour.

Again, these findings, even if incorrect, which has not been demonstrated, have no direct bearing on the essential factual conclusions for the guilty verdict. iii) Mother of the victims [ 87 ] At paragraphs 761 and 766 of the judgment, the judge discounts the conspiracy theory based on the evidence that the mother (Ms. P.) was nervous and reticent when told of the suspected mistreatment of the children by the school social worker.

The judge considers that this, together with the fact that the mother did not testify at the trial, is another reason not to accept the conspiracy theory or not to find reasonable doubt stemming from this theory. iv) X [ 88 ] The Appellant questions the factual underpinnings of the judge’s review of various contradictions in the testimony of X to argue that the judge’s conclusion that X’s testimony was credible is unreasonable. The argument of Appellant is an invitation to substitute the opinion of the Court of Appeal for that of the trial judge on a question of credibility.

However, the Appellant has failed to demonstrate that the judge’s conclusions on X’s credibility were illogical or unreasonable.

v) Y [ 89 ] Appellant contests the judge’s analysis of various elements to conclude that Y’s testimony was reliable and creditworthy. Again, Appellant’s arguments are based on factual issues but no manifest error is established. Moreover, the judge points out that the inconsistencies in her testimony are few and can be attributed to the stress of the situation.

This is not, as the Appellant submits, a reviewable error. [ 90 ] Under this ground of appeal, Appellant’s assertion that the verdicts are unreasonable based on the whole of the evidence rests on a combination of questions of credibility without any convincing argument that the judge’s findings on credibility were unreasonable. Alternatively, Appellant questions finding of fact, which were the essential ingredient of the offences charged.

In either case, the foregoing review and analysis of the points raised by Appellant demonstrate that the verdicts are based on proven facts and reasonable conclusions drawn from those facts by the judge. GROUND V: The guilty verdicts on the counts where the indictment relates to Y as the victim are unreasonable [ 91 ] Appellant continues his argument that the guilty verdicts on the following specific counts where Y alone or Y and her brother were victims are unreasonable:

i) count 9: sexual assault; ii) count 13: uttering threats; iii) count 5: assault with a weapon; iv) count 1: criminal negligence causing bodily harm;

v) counts 3 and 16: unlawfully causing bodily harm (X and Y victims); vi) mistreatment suffered by X regarding which he did not testify. [ 92 ] In paragraph 796 of the judgment, the judge states that Y’s testimony taken by itself would probably have been insufficient to convict the Appellant. However, the judge continues that the situation is otherwise when Y’s testimony is examined in the light of all of the evidence taken together. Many parts of Y’s testimony were confirmed by other evidence particularly on important aspects of the case.

There is no error to be found in the judge looking to other elements of the proof to bolster Y’s credibility even if these elements would not constitute corroboration because (for example) they were not independent. [37] It must be remembered that as a matter of law, no corroboration of Y’s testimony is required to convict. [ 93 ] Assessment of credibility is not solely dependent on objective criteria; demeanour observed by the trier of fact is relevant and cannot be assessed by a court of appeal. [38] The trier of fact is at liberty to accept part of a witness’ evidence while rejecting other parts. [39] Assessment of credibility by the trier of fact should be shown great deference by a court of appeal.

It is for the trier of fact to decide whether any inconsistencies have been neutralised. [40] [ 94 ] Concern about Y’s credibility (paragraph 796) is addressed by the judge in paragraphs 805 to 810 where she looks at elements in the proof which provide independent confirmation of Y’s testimony. [41] Moreover, the judge underlines that the contradictions in Y’s testimony were few and insignificant. The memory lapses with regard to certain specific circumstances were understandable in the context of the evidence as a whole, spanning several events which occurred over several years.

The judge then concluded that Y was sincere and truthful in her answers and the judge held that the mistreatment reported did indeed happen.

[ 95 ] The reasoning of the trial judge here does not demonstrate any error that would justify intervention by the Court of Appeal. The judge believed the victims and found other evidence to confirm their testimony. Once the judge accepted the victim’s testimony taken with confirming evidence, the verdicts resist the argument of unreasonableness. The guilty verdicts are reasonable on the standard identified by the Supreme Court in Biniaris .

GROUND VI: Error of law regarding charges of criminal negligence causing bodily harm in counts 1 and 14 [ 96 ] Appellant submits that the judge committed errors of law regarding counts 1 and 14 in virtue of which Appellant was accused of criminal negligence causing bodily harm. More specifically, Appellant is accused under count 1 of having used a knife to cut off the trousers worn by Y, because he disapproved of them and in so doing, he seriously cut her thigh causing bleeding and scarring.

Count 14 relates to forcing X under a cold shower and thereby causing him bodily harm. [ 97 ] In reaching a guilty verdict, the judge referred to R. v. Beatty [42] . In articulating the difference between criminal and civil negligence in the context of the operation of a motor vehicle, the Supreme Court in Beatty referred to a “marked departure” from the norm of the reasonable person. Appellant pleads that the judge should have applied a more exigent standard of negligence (“marked and significant departure”) as articulated by the Supreme Court in R. v.

Tutton [43] which was a manslaughter case. [ 98 ] The error of law in this regard had no bearing on the result. Given the overwhelming evidence and the inevitable conclusion that anyone who cut a pant leg with a sizeable kitchen knife whilst the victim was wearing the trousers has markedly and significantly departed beyond any norm of conduct acceptable to a reasonable person in the circumstances. Thus, despite the error of law, no substantial wrong or miscarriage of justice has occurred.

As urged by the Respondent, Section 686(1)(b)(iii) Cr.C . will be applied and the appeal on this point will be dismissed. [ 99 ] The other argument raised in this ground is that the conviction of Appellant under Count 14 for negligence causing bodily harm because he forced X under a cold shower for a prolonged period of time, causing him to lose consciousness is tainted with an error of law since fainting does not constitute bodily harm.

The judge said this: [839] (…) Le concept juridique de « lésions corporelles » prévu à l’art 2 du Code criminel exige que la lésion en cause ne soit pas de nature passagère, mais dans le contexte particulier de cette cause, je considère que les éléments constitutifs requis ont été prouvés, et ce, hors de tout doute raisonnable. The Crown agrees that this part of the judgment should be reversed and that an acquittal be entered.

The Court however is not bound by the Crown’s position. [44] I think it is wrong; fainting can be “bodily harm” in my opinion. [ 100 ] The definition of bodily harm in the Criminal Code is as follows: 2. In this Act, (…) “bodily harm” means any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature; 2. Les définitions qui suivent s’appliquent à la présente loi. [...] « lésions corporelles »

Blessure qui nuit à la santé ou au bien-être d’une personne et qui n’est pas de nature passagère ou sans importance. [ 101 ] Despite some ambiguity, in the foregoing quote from paragraph 839 of the judgment, the judge arrived at the conclusion that the elements of the offence were proved. In this regard she found that:

i) the cold shower caused hurt or injury to X; ii) that the hurt or injury interfered with X’s health or comfort; and iii) that the hurt or injury was not trifling or was not transient. [ 102 ] The facts found by the judge are not challenged. Rather, Appellant argues that fainting cannot constitute bodily harm. [ 103 ] Bodily harm is not restricted to cuts, bruises, scratches or other injuries which are readily visible on the victim’s body. [45] [ 104 ] The ultimate issue in this case is the manner in which “transient or trifling” in the definition of bodily harm should be read.

Otherwise stated, is the definition met where (in this case) the hurt is more than merely transitory or more than merely trifling? [46] At Common Law, the definition was “more than merely transitory and trifling”. The “and” became an “or” on codification. [ 105 ] The Ontario Court of Appeal examined the definition of bodily harm in R. v. J.A. [47] and although the observations are largely obiter [48] they are applicable to the present issue and I agree with them. In R. v. J.A ., Simmons J.A., writing for the Ontario Court of Appeal, preferred a “positive”

interpretation because of:

i) the wording which focuses on what constitutes bodily harm rather than what is excluded; ii) the legislative history which does not indicate that Parliament intended to change the meaning of the Common Law formulation, and iii) the fact that injuries of short duration are recognized by the courts as being sufficiently serious to constitute bodily harm. [49] For example, one can lose consciousness upon receiving an electric shock from a taser. The fact that one shortly regains consciousness may make the injury transient but hardly trifling. Is this not bodily harm? The answer is self-evident.

[ 106 ] In this case, the fainting of X was certainly not trifling even though it may have been transient. The fainting constitutes bodily harm and is an indication that the act (the cold shower) caused such interference with X’s health by an effect (hypothermia) on his system which resulted in a loss of consciousness. There was no expert evidence.

However, the facts speak for themselves as to the causal link between the cold shower and the loss of consciousness. [ 107 ] I should not be taken to say that every loss of consciousness will satisfy the definition of bodily harm since not every loss of consciousness stems from an injury (for example sleeping). However, in this case, since the judge’s factual findings are not put in issue and because I disagree with the parties’ submission that fainting does not, per se , in law, constitute bodily harm, I see no reason to interfere with the finding of guilt on count 14.

The issue is one of mixed fact and law and as can be seen in the foregoing analysis, I find no error in the judge’s conclusion.

GROUND VII: Error in concluding that there existed proof beyond reasonable doubt of sexual assault (count 9), assault regarding the forced haircut and confinement (count 11) [ 108 ] In essence, the Appellant submits that the third step of the test in W.(D.) was not properly considered, i.e. whether on the whole of the evidence there existed reasonable doubt notwithstanding that such doubt was not raised by the accused through his testimony. [ 109 ] Concerning the pulling out of Y’s pubic hair as the actus reus of the sexual assault charge, the judge was convinced beyond reasonable doubt that the events occurred.

Appellant attempts to raise inconsistencies in the evidence regarding the number of occasions Appellant did this but again these issues of fact do not indicate that the judge’s verdict cannot be supported on the evidence or is otherwise unreasonable.

As such, the intervention of the Court of Appeal is not indicated. [ 110 ] As well, there is no error of law in the judge’s conclusion in paragraph 820 of the judgment: the pulling of the pubic hair was an assault; the assault was committed in a manner and on a part of the body sufficiently intimate so that the assault was sexual in nature; Y did not consent; the absence of sexual gratification on the part of the perpetrator is not an impediment to a finding of guilt. [50] [ 111 ] Concerning the forced haircut, the Crown is correct that there is no charge of assault arising from this incident contrary to Appellant’s assertion. [ 112 ] On the charge of forcible confinement, Appellant submits summarily that the judge erred by concluding in paragraphs 831 and 832 of the judgment that Appellant’s parental authority in Civil Law did not, in this case, constitute “lawful authority” because the manner in which Appellant controlled his daughter’s movements was unreasonable. [ 113 ] Section 279(2) Cr.C . reads in part as follows: 279. (…)

(2) Every one who, without lawful authority , confines, imprisons or forcibly seizes another person is guilty of (…). (Emphasis added) 279. […]

(2) Quiconque, sans autorisation légitime , séquestre, emprisonne ou saisit de force une autre personne est coupable : […]. [ 114 ] The judge examined the notion of parental authority and the obligations attached to it as reflected in

Article 599 CCQ ,

Section 2.2 of the Youth Protection Act [51] and

Section 39 of the Quebec’s Charter of Human Rights and Freedoms . [52] She then looks at the circumstances of the detention of Y in apartment #3 including the fact that there was inadequate heat and furnishings, that Y was forced to sleep there and take her meals there alone and (with the exception of a birthday celebration for Ms.

S.) was only allowed out of apartment #3 to attend school. [53] After this review, the judge concludes that the obligations of Appellant counterbalancing his parental authority were not met so that the confinement was “without lawful authority”. [ 115 ] The judge concludes at paragraphs 831 and 832 of the judgment as follows: [831] Évidemment, un parent ne doit pas craindre une inculpation criminelle de séquestration lorsqu'iI envoie son enfant en retrait dans sa chambre pour sanctionner une conduite répréhensible de sa part; dans la mesure où Ie confinement se fait dans un lieu adéquat, pour une période de temps raisonnable en fonction de l'âge, du développement de l'enfant et des circonstances qui prévalent.

Cela étant, la situation en l'espace me paraît nettement démesurée et injustifiable. [832] Je conclus que les droits de garde, surveillance et d'éducation, lesquels sont des composantes de l'autorité parentale, ne constituent pas une «autorisation légitime» valable au sens où l'entend le paragraphe 279(2) du Code criminel pour justifier les gestes posés par l'accusé N… envers sa fille Y en février-mars 2009. L'autorité parentale ne lui octroie pas une protection blindée, ni une immunité légale lui permettant d’échapper à la loi et d'agir à sa guise impunément.

À mon humble avis, les conclusions factuelles énoncées précédemment me permettent de conclure à l'existence de périodes de séquestration successives, récurrentes et suffisamment significatives durant la durée couverte par l'inculpation pour justifier un verdict de culpabilité. [ 116 ] In R. v. Bottineau , [54] the Ontario Court of Appeal confirmed the trial judge who observed that the confinement in that case (as with Y in this case) was not incident specific as a response to particular behaviour requiring or justifying the disciplining of a child by a

parent. Rather, the confinement was a “daily or near daily event, unresponsive to any conduct [of the child] other than her general “bad character” and its nature, extent and duration vastly exceeded any statutory or common law jurisdiction.” The Ontario Court of Appeal expressed agreement with the trial judge in Bottineau in the following manner: We agree. The confinement in this case was degrading, inhumane and harmful in the extreme. Its nature, extent and duration vastly exceed any statutory or common law jurisdiction and was, without question, unlawful.

These words are clearly applicable to the case at bar. [ 117 ] There is no error of law arising from the judge’s reasoning as Appellant would have us conclude. There is nothing in law that would require the confinement to be absolutely continuous over the period of three weeks so that daily exits to attend school during two of the three weeks in question are not an impediment to a finding of guilt. The judge states that the periods of confinement were successive.

The law requires that the period of time of the confinement be significant. [55] Four or five hours has been considered significant. [56] The victim’s movements must be constrained against her will [57] and this imposition of constraint need not be physical to make out the offence. [58] Given the abundance of the evidence of physical abuse in this case as punishment for bad behaviour, it takes no stretch of imagination to conclude that the order of her father to remain in apartment #3 was constraint enough to satisfy the legal requirement of the offence of forceable confinement.

The deprivation of her freedom was ongoing. The evidence of abuse makes it clear that Y could not consider not returning to apartment #3 at the close of the school day. [ 118 ] Appellant also alleges that the judge considered irrelevant facts (i.e. at paragraph 830 that apartment #3 was not furnished and was inadequately heated).

I think the comments above demonstrate that the inadequate conditions were pertinent to the issue of confinement. [ 119 ] With respect to this ground of appeal, Appellant submits that overall there was an error committed by the judge in the manner in which the third step in the reasoning in W.(D.) was applied by the judge. On the whole, it must be said that the judge scrupulously and methodically followed the step by step methods set down in W.(D.) . Dealing with this ground of appeal, I note that paragraphs 771 and following of the judgment are placed under the heading “la troisième étape de R. c. W.(D.) ”.

The judge then considers the credibility of the two child complainants and goes on to analyze the evidence and then summarizes her findings of fact at paragraph 812 of the judgment. The text of the judgment then continues with an analysis of the sexual assault (count 9) and the confinement (count 11) which are put in issue under this ground of appeal by the Appellant. There is no examination of an assault arising from the forced haircut since (contrary to Appellant’s submission) there was no conviction, as stated above. Appellant’s critique of the judge’s consideration of the evidence is unfounded.

GROUND VIII: Error in not providing an interpreter for the accused [ 120 ] On at least one occasion, the judge remarked that she had difficulty understanding the accused’s French. Appellant submits that there was an infringement of his linguistic rights protected by

Section 14 of the Canadian Charter of Rights and Freedoms : 14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter. 14. La

partie ou le témoin qui ne peuvent suivre les procédures, soit parce qu'ils ne comprennent pas ou ne parlent pas la langue employée, soit parce qu'ils sont atteints de surdité, ont droit à l'assistance d'un interprète. [ 121 ] When an accused does not understand or speak the language of the proceedings, a court has an obligation (independent of any request) to provide an interpreter. [59] This does not mean that a court must always inquire into the language proficiency of an accused. [60] Before this Court, the burden is on Appellant to establish on a balance of probabilities that in the circumstances of this case he needed the assistance of an interpreter either because he could not adequately speak or understand French. [61] This is the first part of the test laid down by the Supreme Court of Canada in R. v.

Tran to determine if language rights under the Charter have been infringed in the accused’s trial. Appellant raises an exchange occurring on May 19, 2011 at the end of the second day of Appellant’s testimony where the judge commented to Appellant’s counsel as follows: C’est parce que je trouve ça un petit peu […] dur à comprendre. Puis je ne sais pas, peut-être que vous devriez examiner la question de la langue. S’il veut témoigner en espagnol, on peut le faire témoigner en espagnol.

Je ne veux pas que ce soit un argument, ça. [ 122 ] The Appellant concludes from the foregoing that the judge could not understand the Appellant’s Hispanic accented French. However, Appellant takes the comment out of context: R Moi, je ne suis pas une personne violente. Je n'ai jamais eu des antécédents. Mais là, en revenant pour ça, pour finaliser ce résumé que je pense que l'heure, elle avance... PAR LA COUR : Ce n'est pas l'heure, c'est plutôt l'état, en tout cas, l'état de Monsieur. II me semble que ça serait un bon moment pour… je ne sais pas. PAR LA DÉFENSE (Me Montpetit) : On peut arrêter.

PAR LA COUR : Prendre une petite pause ou arrêter là. Je ne sais pas. PAR LA DÉFENSE (Me Montpetit) : On va arrêter. D'une façon ou d'une autre, on n'a pas fini. PAR LA COUR : C'est parce que je trouve ça un petit peu… PAR LA DÉFENSE (Me Montpetit) : II reste le vidéo et puis… PAR LA COUR : …un petit peu dur a comprendre. Puis je ne sais pas, peut-être que vous devriez examiner la question de la langue. S'il veut témoigner en espagnol, on peut le faire témoigner en espagnol. Je ne veux pas que ce soit un argument, là. PAR LA DÉFENSE (Me Montpetit) : Bien, écoutez, je comprends mais il faudrait tout recommencer.

PAR LA COUR : Oui, je sais... En tout cas. Bien, c'est parce que… Non. Avant, çaallait bien mais là, je sens une certaine désorganisation. C'est dur à suivre. C'est peut-être l’heure. C’est peut-être la fatigue. PAR LA DÉFENSE (Me Montpetit) : Non. C'est parce qu'il parle avec beaucoupd'émotion. PAR LA COUR : Oui. C'est peut-être l’émotion. PAR LA DÉFENSE (Me Montpetit) : II veut essayer de faire comprendre ce qu'ilressent. Voilà. On va arrêter pour l'instant.

PAR LA COUR : Okay. (DÉPOSITION DE CE TÉMOIN SUSPENDUE) [123] There is nothing in the foregoing extract of testimony and exchange with the judge that demonstrates on a balance ofprobabilities that the Appellant could not speak or make himself understood in French. There were some occasions during the trial wherethe judge asked the Appellant to repeat a word or phrase used in his testimony. For example, on May 18, 2011: R[…] Parce que moi, comme je vous dis, je punissais mes enfants, mais quand mêmej’enlevais des… les punitions.

Mettons que je les ai quittés de la télévision, je leurdisais : «Tu vas pas voir la télévision, mettons, la fin de semaine, pour avoir uneconséquence à tes mauvais comportements à l’école. » Ça pouvait être une mauvaisenote ou quoi que ce soit. Puis moi, je leur permettais voir la télévision quand même,mettons peut-être pas le samedi matin ou le samedi après-midi, mais ça complétaitpas la punition. Jamais ou presque jamais. PAR LA COUR : Excusez-moi. Mais je ne suis pas sûre d'avoir bien compris, là, latélévision. C'était un moyen de punition ou pas?RIl y en avait des punitions. C'est…QNon, mais la télévision?

C'est juste ça que je ne suis pas sûre d'avoir compris.RLa punition, ça pouvait être enlever la télévision.QAh! Enlever.RIls sont pas permettre aux enfants de voir la télévision.QPAR LA DEFENSE (Me Montpetit) : Pour une fin de semaine, exemple.RPour une fin de semaine, exemple, j'ai dit.

PAR LA COUR : Okay. [124] This and other passages demonstrate that there was no need for an interpreter and that the judge was proactive if there wassomething in the Appellant’s testimony that she did not understand. [125] On balance, the Appellant has not satisfied me that his language rights protected by the Canadian Charter of Rights andFreedoms were infringed. [126] The last word on this issue belongs to the trial judge when she addressed the issue of the Appellant’s testimony and his abilitiesin French as follows: [715] Sa version est truffée de contradictions importantes, d'invraisemblances et de réponses évasives et confuses.

En disant ceci, leTribunal est conscient du fait et a pris en considération, que monsieur ne possède pas une maîtrise parfaite des subtilités de la languefrançaise. Cela étant, il vit et travaille au Québec depuis plus de 20 ans. II a choisi de témoigner en français et le Tribunal a été à mêmede constater qu'il s'exprime fort bien. La langue n'était donc pas un obstacle significatif ou majeur pour lui. [127] The judge dealt with the language issue directly and I subscribe to her opinion. CONCLUSION [128] For all of the foregoing reasons, I propose to dismiss the appeal on all grounds.

The motion for leave to appeal on Grounds I andIV should be granted but, as indicated, the appeals should be dismissed. MARK SCHRAGER, J.A. [43] R. v. Tutton, (SCC), [1989] 1 S.C.R.

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