2019 QCCQ 2881, 2019 QCCQ 2881

LSJPA — 1917 2019 QCCQ 2881 COUR DU QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF [...] TOWN OF [...] « Youth Division » N° : 760-03-013311-173 DATE : April 2, 2019 ______________________________________________________________________ BY THE HONOURABLE BÉATRICE CLÉMENT, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecution c.

X Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ WARNING: No person shall publish the name of a young person or a child or any information that may identify him as having been dealt with under the Youth Criminal Justice Act , or as being a victim or witness in connection with an offence alleged to have been committed by a young person, except by judicial order.

Every person who contravenes these dispositions is liable to prosecution (sections 75, 110(1), 111(1) and 138 Y.C.J.A.). [ 1 ] Context [ 2 ] The Defendant faces a series of criminal charges relating to alleged acts of a sexual nature implicating his two younger siblings, during a period in which they were all minors. For the sake of comprehension, the Court stipulates their ages: X: [...], 1973 Y: [...], 1979 Z: [...], 1981 [ 3 ] As evidence, the Court receives testimony of all members of this family, namely all three siblings as well as their parents.

As to the versions of Y and Z, the Court also benefits from their video police declarations from 2016. [ 4 ] Both of the Defendant’s siblings describe two separate distinct incidents of being victim of acts of a sexual nature at the hands of the Defendant during their youth. The Defendant denies such.

Within its evaluation of the Prosecution’s allegations of the Defendant’s guilt, the Court must evaluate contradictory testimonial evidence. [ 5 ] Evidence [ 6 ] Before relating and analyzing the factual evidence administered, the Court gives an overview of pertinent peripheral facts which are recognized or uncontested. [ 7 ] As of their parent’s separation in 1986, the siblings X, Y and Z, reside with their mother in a two-story house in Town A. Their mother works and the Defendant, as the oldest child, is regularly left to take care of his younger brother and sister.

He is imbued with authority over them at these times and recognizes sometimes being cruel or using punishments to ensure their compliance. [ 8 ] As of the end of 1988, the family moves to a neighbouring town (Town

B) to reside with the mother’s new spouse. When the Defendant is fifteen, he moves out of this home to live with his father after an argument ensues with his mother. The siblings continue to see each other during access rights. [ 9 ] During their adulthood, the relationship between the siblings is cordial but contacts irregular. [ 10 ] At the occasion of their grandfather’s wake when Ms A is in her twenties, a family reunion occurs. There is a conversation

between the Defendant and herself whereby they discuss their childhood. Ms A tells her brother that he ruined her life and he knows what he did .

The Defendant apologizes to her. [ 11 ] The following resumes the testimonies and police declarations on the facts of the accusations. [ 12 ] Y relates in two incidents relating to sexual contacts with her brother X, once while they reside in Town A and another when in Town B. [ 13 ] She recalls being in grade 2 and between 6 to 8 years old, the first time this occurs. [ 14 ] She describes this incident in her video declaration as well as in her direct testimony before the Court. [ 15 ] Her oldest brother takes her in their parent’s bedroom and bends her over the bed.

She isn’t wearing pants and states he places his penis in her rectum. She doesn’t see much as he is behind her. She remembers feeling pressure and pain from behind. She hears her brother make groaning sounds, which she now equates to sounds of pleasure. She doesn’t recall precisely how she came to not have her pants on. [ 16 ] She remembers her brother Z being outside the door and repeatedly asking to come in. The Defendant tells him to stay away.

She estimates that the whole incident lasts about 10 to 15 minutes. [ 17 ] Afterwards, she immediately goes downstairs and denounces her brother’s actions to their mother. She recalls her mother having physically examined her. Her mother argues with her brother afterwards. [ 18 ] The mother also testifies before the Court. She corroborates to her daughter having come to see her when she was 5 or 6 and to having said that the Defendant put his pee pee in her bum .

She also confirms having then examined her daughter’s anal area and to not seeing any injury. [ 19 ] She confronts her son X, scolding him and saying he could have harmed his sister. She testifies that recognizes his actions and shows remorse. She feels relief at his reaction, hoping that such is sufficient to respond to the situation. She takes no further actions. [ 20 ] The sister further declares that another incident occurs during the time which the family is residing in Town B. Her brother X is then in high school. [ 21 ] He comes into her room, asks her to get under the covers with her head down.

She remembers struggling to breathe. He attempts to masturbate her. She could see his hand under the covers and nothing else. He asks her to feel things and she senses him frustrated and angry when she responds no. She feels that she disappoints him. [ 22 ] Once again, she rapidly relates the incident to her mother stating that her brother has again done sexual things to her (without details).

Her brother Z is present and also tells his mother that he has had something done to him of that nature, also (this information is also related by Z and their mother). [ 23 ] Their mother corroborates this conversation with her daughter. She testifies to confronting her son once again after her daughter’s revelation and that an argument ensues. She doesn’t take long to make a decision, but quickly coming to the conclusion that there were not many alternatives.

She decides that X’s removal to his father’s home would settle things. [ 24 ] She testifies to having told their father that X was getting beyond her control and that it would be best that he live with him. Feeling ashamed or like a failure, she decides to not give any details concerning X’s actions towards his sister. [ 25 ] Not long after, the Defendant leaves their home to live with his father. [ 26 ] Z also testifies as to two incidents of a sexual nature involving his brother X. [ 27 ] The first occurs while they are residing in Town A.

He states being 5 or 6 years old. [ 28 ] Z and the Defendant are in their shared bedroom on the top of their bunk beds. It is probably night or evening, as he remembers it being dark. They are on their sides and his back is towards the wall. At his brother’s insistence, he performs fellatio. He remembers his brother telling him not to bite it but just to suck on it. He states that the incident is brief and totally unpleasant. [ 29 ] The witness readily admits to not remembering what happened before or after, but as to the incident itself, that he remembers it as in a ‘’freeze frame’’.

He is candid as to his difficulty remembering surrounding details, but remains firm as to the essential elements. His video declaration and testimony vary little in content. [ 30 ] Such is also the case within his description of another incident concerning his siblings whereby he recalls his sister being attached with rope on the couch. He remembers that his brother is babysitting them in their house in Town A. He approximates being again around 5 or 6 years old. [ 31 ] He states that his brother ties his sister up with yellow cord. She is on her back with her legs in the air. He sees her exposed genital area.

His brother tells him to put his penis in her and he refuses. He says that he cannot recall what transpired before or after, but that the details he puts forth are clear in his memory. He remembers his confusion and unease, provoking him to leave the living room. Ms A offers no testimony in regards to said incident. [ 32 ] The Defendant recognizes to playing sometimes cruel pranks on his siblings, which is a thematic globally recognized by the parties.

Y and Z testify to even avoiding him, which is corroborated by their mother. [ 33 ] As an example of the sibling dynamic, all three siblings testify as to an incident whereby Y is incited to drink a glass said to

contain urine. Z mentions that his brother tells him to urinate in a cup and then incites his sister to drink it, which she refuses to do after smelling the odor. Y corroborates having thrown the drink to her brother X after realizing its contents. [ 34 ] The Defendant admits to having asked his sister to drink a glass of urine which was in fact apple juice. She refuses and ends up throwing the glass at her brothers.

He considers this incident a simple childhood prank which he only recently remembers in relation to the accusations. [ 35 ] The Defendant denies any malfeasance of a criminal nature towards either of his siblings, notably of a sexual nature. He states that although he could be cruel, he remembers the two worst pranks, namely to having tripped his brother causing injury and having made his sister sit in dog feces. [ 36 ] He relates the present accusations to his siblings being angry with him.

It is unclear what he relates this anger to. [ 37 ] In defense to his sister’s testimony, he states that they never entered their parent’s bedroom as such was prohibited in reason of an exposed heating pipe. In cross-examination, he further indicates being able to sometimes play there and to going there at his mother’s request. [ 38 ] He offers an extensive overview of his childhood and adult life, putting an emphasis on numerous challenges in his family and work life.

He also explains having struggled with psychological and physical problems which have affected his functioning in the last years. [ 39 ] The siblings maintain cordial but limited contacts in their adulthood. The evidence clearly establishes that they do not refer nor discuss openly their childhood nor any events of a sexual nature, such being almost a taboo subject. [ 40 ] Ms A, through the years, makes repeated allusions to trauma suffered at the hands of the Defendant during their childhood, without specific reference to acts of a sexual nature.

The testimonies of her brother Z and their parents allow that all were aware of these allegations, but were mostly dismissed in reason of her oftentimes histrionic behaviours. [ 41 ] As to the discussion between the Defendant and his sister at the occasion of their grandfather’s wake (see above), although they both recognize this discussion regarding their childhood, divergent versions are presented as to its meaning. [ 42 ] The Defendant admits this conversation and its context. He testifies to believing that his sister was speaking of his cruelty during their childhood.

For Ms A, she considers that the Defendant recognized his actions of a sexual nature towards her and that the apology was in regards to such. [ 43 ] Both of the Defendant’s siblings testify to receiving psychological support during their adulthood during which they discuss their childhood trauma in relation to their brother and family dynamic. [ 44 ] Y decides to go forward with a complaint upon receiving information that her brother Ian would have made allusions to their father’s abuse within accusations relating to his own daughter. [ 45 ] Analysis and Decision [ 46 ] The prosecution’s evidence relies primarily on the testimonies of the alleged victims and their parents. [ 47 ] The Court must weigh contradictory testimonial evidence.

As such, the Court applies the principles put forth by case law, which dictate a process destined to ensure that the burden of evidence remain incumbent on the prosecution to prove beyond a reasonable doubt the essential elements of the infractions, with the objective of guaranteeing the defendant’s presumption of innocence. [ 48 ] These principles remains intact notwithstanding that the alleged events occur many years in the past.

Notwithstanding, case law underlines that the Court must consider that events occurring during childhood related by an adult, will probably lack in contextual details and suffer from the passage of time.

If on the subject of contextual or secondary information, such is not necessarily fatal. [ 49 ] Does the Court believe the Defendant? [ 50 ] The Court must first examine whether the Defendant’s testimony is believable, namely as to his version of facts and denial of the criminal acts for which he is accused. [ 51 ] After reviewing the evidence, such is not the case. [ 52 ] Although the Defendant consistently corroborates his family’s testimonies, it is in the specific details concerning the allegations of a sexual nature for which he repeated offers versions of facts which are exculpatory.

Although on the surface these seem individually reasonable, when placed in view of the evidence as a whole, the Defendant’s version of facts present inconsistencies which cannot be resolved and which affect the reliability of his testimony. [ 53 ] His emphasis on his mental and physical challenges in adulthood are seemingly brought forth to establish his credibility, but in point of fact offer little to the evaluation of the accusations. [ 54 ] The Court underlines certain specific elements of his testimony which affect his credibility and reliability, such not being exhaustive. [ 55 ] The Defendant states that the children never went in their parent’s bedroom in Town A in reason of security concerns, which purports to contradict his sister’s testimony regarding the first alleged incident of sexual contact.

In cross-examination, he admits that there were in fact moments when such was the case and even permitted.

[ 56 ] As to the circumstances surrounding his transfer to his father’s home, he confirms that the whole surrounded a heated argument with his mother, wherein his step-father stepped in and put him up against the wall. He doesn’t remember the subject of this argument, but claims that this was the incident which provoked his departure. [ 57 ] His mother testifies that the Defendant leaves her care after her daughter tells her that her brother « has done it again» . She relates this immediately to the previous act of a sexual nature denounced by her daughter, for which she had already confronted her son.

She confronts him once again and takes the decision to have him live with his father. She chooses not to advise his father of the situation, preferring to keep the issue moot. This also confirms her daughter’s testimony. [ 58 ] While admitting to a conflict having spurred his departure from his maternal family environment, the Defendant’s reasons for this, as they are, do not satisfy his credibility.

Simply stating not recalling the reasons of the argument with his mother is not consistent with the reactions of his step-father nor had the decision for him to leave in an imminent fashion from what been his primary environment.

The Court questions his inability to recall the exact nature of the argument for which he left his family home, especially when his testimony is otherwise replete with details as to his background, life, etc. [ 59 ] All three siblings testify to the fact that at the occasion of their grandfather’s wake, the Defendant and his sister have a conversation in which they refer to difficult things having occurred between them in Town A in their youth. The sister mentions that he has ruined her life. It is an emotional conversation, during which the Defendant apologizes to his sister and she forgives him.

He explains that in his mind, his apology refers to the fact that he had bullied her when they were children. [ 60 ] At this point, their relationship is strained and they have been mostly estranged for some time. The Defendant is aware that his sister has, in the past, made allusions to his having had inappropriate conduct towards her in their youth.

This conversation, within the context of their relationship and the solemnity of the death of a family member, underlines the gravity of their discussion, which is inconsistent with the Defendant’s explanation that he thought he was apologizing for sibling pranking having occurred more than two decades prior. [ 61 ] Overall, the Court remains unconvinced of the Defendant’s version of events, which seem to be a litany of convenient explanations which are largely inconsistent with the global evidence.

As such, his denial fails to raise a reasonable doubt based on all the evidence adduced. [ 62 ] Does the evidence convince the Court beyond a reasonable doubt of the essential elements of the infractions? [ 63 ] Based on the evidence as a whole, the Court considers that the prosecution meets its onus as to the Defendant having presented criminal conduct of a sexual nature in regards to his siblings and this, on four occasions. [ 64 ] The evidence demonstrates that the Defendant’s brother and sister maintain little contacts and have no detailed conversations as concerns the events for which they testify.

Notwithstanding such, they are able to give similar descriptions as to their childhood, their relationships with their older brother and his comportments towards them. The Defendant also confirms many of these elements in his testimony. This situation offers credence as well as reliability to their versions of events. [ 65 ] Furthermore, their relating distinct incidents of a sexual nature at the hands of their older brother constitutes, for the Court, a further corroborating factor, in as much as they show his propensity for such during a similar period.

It is also relevant that during that time, the Defendant is given authority over them and, following his own admission, he lords over them, eking out punishment to ensure their compliance. [ 66 ] The two alleged victims corroborate each other as to many elements relating to their shared past.

They offer clear and consistent testimonies, during which they are able to define the incidents for which the Defendant stands accused, while giving peripheral details which are also corroborated by the mother’s testimony as well as the Defendant’s. [ 67 ] The Court fails to retain any reason justifying that their versions be disregarded.

Although the Defendant speaks of their anger towards him, the Court only retains sadness and distress as relates to their childhood as well as a wish to be relieved of the burden of the related acts. [ 68 ] Overall, the Court finds both Y and Z to be a credible and reliable witnesses. They show no ill-will towards his brother and no other evidence is adduced to question their reliability.

Z’s testimony is particularly clear and transparent as to essential details of the events he witnessed, while he candidly recounts when he does not. [ 69 ] The mother’s testimony is also corroborative and her credibility unchallenged.

Although not witness to the incidents alleged, the Court retains that her daughter speaks to her on two occasions in relation to acts of a sexual nature committed by the Defendant and that she further acts on these, by firstly physically examining her daughter and intervening in her son’s regard and then ultimately seeking his removal to his father’s home. [ 70 ] The Court notes her distress at having to testify in this sad recounting of the family dynamic and the position this puts her in in regards to her three children.

She testifies in a clear manner, maintaining the uncomfortable position she finds herself in regards to the issues between her children. Such is another factor of reliability. [ 71 ] The father’s testimony also corroborates that he was mostly left in the dark as to the specifics reasons as to why his son came to reside with him, such confirming the family’s discretion in regards to their difficulties. He offers little else of a probative nature. [ 72 ] The evidence is certainly not without minor contradictions and inabilities to give complete secondary details and the defense rightly underlines such.

Yet, the essential elements are clearly detailed and, considering that the events occurred around 30 years ago, convincing to the Court. [ 73 ] Overall, the chronology of facts which are put forth by the prosecution offer a consistent and convincing narrative which

reinforces the allegations as to the Defendant’s criminality and convince the Court beyond a reasonable doubt of his culpability on the charges relating to sexual matters.

As for the charges relating to kidnapping and threats and in regards to the ventilation of the charges, the Court continues its analysis as follows. [ 74 ] At the Court’s request, the attorneys offer additional representations as to the ventilation of the charges, notably in regards to the multiplicity of accusations relating to similar events. [ 75 ] Incest / sexual assault / sexual contact with Y (counts 1, 2, 3, 4, 7) [ 76 ] The Court finds the Defendant guilty of incest in relation to his sister Y while they are residing in Town A. [ 77 ] As to the time frame, Ms A testifies that she remembers being in grade 2 – the estimates being about 7 or 8 years old.

Following her age estimate, this would put the act within the period of December 6, 1986 to December 6, 1988. As to being in grade 2, depending on whether she was held back in relation to her birth date (for which the court has no evidence), this would give a time frame between September 1986 and June 1988. Little other peripheral details permit to determine with more exactitude the date of the incident. [ 78 ] Considering the legislative change occurring in December 1987, the Defendant finds himself charged for two distinct periods on multiple counts.

The Court retains the first period as being more concurrent with the evidence, namely June 1, 1986 to December 31, 1987 (count 1). [ 79 ] The Defendant is therefore acquitted as to counts 2 and 4.

On the basis of the principle to the effect that a Defendant cannot be found guilty of multiple accusations with similar essential elements, relating to the same incident (Kineapple), the Court also acquits as to counts 3 and 7, such also being the position put forth by both attorneys on this issue. [ 80 ] Threats (count 5) [ 81 ] As to the accusation of threats, the prosecution allows that the evidence is not sufficient to convince beyond a reasonable doubt.

The Court concedes that such is the case and acquits the Defendant on this count. [ 82 ] Kidnapping, inciting to sexual contacts, gross indecency (counts 6, 8 and 11) [ 83 ] These charges relate to Z’s testimony in regards to an incident whereby his brother ties their sister up and incites him to sexually touch her. No other evidence is presented by the prosecution as to this purported incident. Namely, Ms A doesn’t report nor testify as to these related facts. [ 84 ] Once again, the witness relates a coherent and convincing version of events.

Although he candidly admits not recalling much peripheral facts, he states that the incident remains etched in his memory like a ‘’freeze frame’’. [ 85 ] This incident is designated by him to have occurred while they remain in Town A, following his recollection, when his brother was twelve or thirteen. Their brother is responsible for them and no adult is present. [ 86 ] The Court retains no reasonable doubt as to the existence of such an incident.

Z’s testimony is corroborated as to sibling dynamic recognized by both the Defendant and his sister. [ 87 ] Notwithstanding, the evidence is moot as to the exact circumstances surrounding their sister being tied, leaving the Court to question whether such was within an intention to constraint, within a context of play, with a level of consent or compliance, the level of constraint etc.

Such elements are essential to establish the criminal nature of the act. [ 88 ] As such, the prosecution fails to meet its onus and the Court therefore acquits the Defendant on the count of kidnapping (count 6). [ 89 ] In regards to count 8 (inciting sexual contact) and 11 (gross indecency), these also relate to the same incident. The brother’s recall is clear and consistent as to the Defendant’s request that he commit

an act of sexual nature as to his sister. This being the case, the evidence is to the effect that this incident occurs before the legislative change creating the accusation of inviting sexual contact. Such being the case, the Defendant is acquitted of these charges. [ 90 ] The Court retains that this act is one of gross indecency.

The fact that this incident remains carved in Z’s memory testifies to the inappropriate sexual nature of his brother’s invitation, which goes over and above a context of child’s play. [ 91 ] For these reasons, the Court acquits the Defendant of counts 6 and 8, while finding him guilty of the charge of gross indecency (count 11). [ 92 ] Sexual assault / sexual contact with Z (counts 9, 10 and 12) [ 93 ] While confirming its evaluation of Z’s credibility and reliability as a witness, the Court retains that the prosecution meets its onus as to the incident of sexual assault having occurred while the Defendant and him were residing in Town A. [ 94 ] As to the time frame, the Court also retains the period anterior to January 1988 and this, relating to his testimony that this incident occurs when he was five or six years old, namely before March 1988. [ 95 ] The Court therefore finds the Defendant guilty as to count 9, while acquitting him on counts 10 and 12 (Kineapple). [ 96 ] Sexual assault / sexual contact with Y (counts 13 and 14)

[ 97 ] For the reasons hereinabove, the also Court declares the Defendant guilty as to sexual assault as described in count 13. In virtue of the rule relating to multiple condemnations, the Court acquits him on count 14. [ 98 ] FOR THESE REASONS, THE COURT: [ 99 ] DECLARES the Defendant guilty as to counts 1, 9, 11 and 13; [ 100 ] ACQUITS the Defendant of counts 2, 3, 4, 5, 6, 7, 8, 10, 12 and 14. [ 101 ] ORDERS the confection of a pre-decisional and a sexual assessment report; [ 102 ] SCHEDULES the decision on July 16, 2019. __________________________________ BÉATRICE CLÉMENT, J.C.Q.

Me Marie-Laurence Hébert-Trudeau Attorney for the Crown Me Ariane Croteau Attorney of the Defendant Trial dates : September 20, November 9, December 7, 2018 (trial), February 15 (postponement), March 8 (additional representations) and April 2, 2019 (decision)