2015 QCCA 812, 2015 QCCA 812

Todorov c. R. 2015 QCCA 812 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005644-149 (500-01-034132-099) DATE: May 7, 2015 CORAM: THE HONOURABLE FRANÇOIS PELLETIER, J.A. NICHOLAS KASIRER, J.A. MARTIN VAUCLAIR, J.A. TODOR TODOROV APPELLANT – accused v.

HER MAJESTY THE QUEEN RESPONDENT – prosecutor JUDGMENT [ 1 ] Todor Todorov has appealed a judgment of the Court of Quebec, District of Montreal (the Honourable Patrick Healy), rendered on April 15, 2014, in which he was found guilty on the following charge: On or about December 15, 2009, in Montréal, district of Montréal, did break and enter in a dwelling-house situated at [...], Verdun and therein did commit an indictable offence, to wit: A sexual assault, committing thereby the indictable offence provided by section 348

(1) b) d) of the Criminal Code . [ 2 ] The appellant argues, in particular, that the judge erred in his application of the rules relating to break-and-entry. Furthermore, he argues that the evidence adduced at trial cannot reasonably support the verdict. He asks that the judgment be set aside and that an acquittal be entered or, alternatively, that a new trial be ordered. [ 3 ] For the reasons that follow, the appeal should be dismissed. I Context [ 4 ] Some of the facts are undisputed. [ 5 ] The appellant was the janitor who lived in the same apartment building as the complainant.

Sometime around 3 a.m. on December 15, 2009, he entered the complainant’s basement apartment, without her consent, through an unlocked door. The kitchen area, which was visible from the door, was in disarray. He then walked down the hall to the complainant’s bedroom. She was in bed, unclothed. The appellant asked the complainant what was happening and whether she wanted to have sex with someone. He then removed his clothes. Soon thereafter, he dressed and, in departing from the apartment, left his boxer shorts behind. Later he returned briefly to the complainant’s apartment.

He told her in strong language to lock her doors and then left. [ 6 ] The evidence as to whether the appellant broke and entered the apartment without lawful justification or excuse and whether he sexually assaulted her is disputed. Both the complainant and the appellant testified at trial.

Their versions of events were incompatible in essential respects. [ 7 ] In sum, the theory of the prosecution at trial was that after breaking and entering into the complainant’s apartment, the appellant touched her in a sexual manner, without her consent, and in the circumstances he could not have honestly believed that she had given her consent to sexual activity with him. [ 8 ] The theory of the defence was that the appellant observed the apartment to be in disarray through an open door and entered the apartment on the suspicion that some foul play had taken place.

When he encountered the complainant unclothed in her bedroom, he asked her if she wanted to have intercourse. The appellant then undressed but, hearing his wife calling him from an upstairs balcony, he quickly put his clothes back on. He left the apartment without having touched the complainant. In any event, the complainant had answered affirmatively to the appellant’s question as to whether she wanted to have sex and had removed the bedclothes and caressed herself in a manner that led him to believe that she consented to having sex. II Judgment of the Court of Quebec

[ 9 ] In respect of the break-and-entry, the judge noted the appellant’s admission that he had entered the complainant’s apartment through an unlocked door and that it was clear he had done so without her consent. In paragraph [6] of his reasons, he wrote: “[h]aving entered without invitation or consent,

section 350 of the Code provides that Mr. Todorov broke and entered the apartment unless there is proof on a balance of probabilities that he did so with a lawful justification or excuse”. [ 10 ] The judge did not accept that the janitor’s observation of disarray, without more, provided him with a lawful excuse for entering the dwelling. Here there was no sound or movement to suggest foul play. The judge concluded that the evidence gave no air of reality to a claim of lawful excuse for the appellant’s entry.

He was satisfied beyond a reasonable doubt that the appellant had broke and entered the complainant’s apartment. [ 11 ] In respect of the alleged sexual assault, the appellant admitted that in the complainant’s bedroom he had been sexually aroused, had removed his clothing and intended to have sexual relations with her. [ 12 ] The judge reviewed the conflicting evidence in order to determine whether the appellant had touched the complainant in a sexual manner, whether she had consented to that touching and, if not, whether the appellant had entertained an honest belief that she did consent. [ 13 ] The judge found the complainant’s testimony to be clear, fluid and precise.

She in no way attempted to conceal unflattering details such as her use of a vibrator, the disarray in her apartment or her carelessness in leaving the door unlocked. The judge wrote that there was no basis upon which to impugn her credibility. [ 14 ] The appellant’s testimony was, according to the judge, not entirely fluid and not entirely clear. He described the account the appellant gave of the relevant events: the appellant claimed to have entered into the apartment of a woman he did not know, without invitation and without introducing himself, then asked her if she wished to have intercourse.

After disrobing, the appellant said he heard his wife calling him and he immediately dressed, leaving the apartment without having touched the complainant.

The judge called the account “inherently improbable”. [ 15 ] After noting that he did not believe the appellant, the judge further considered whether his evidence raised a reasonable doubt and, if not, whether the whole of the evidence was sufficient to prove guilt beyond a reasonable doubt. [ 16 ] Based on the complainant’s account along with all the other evidence, the judge found there was no reasonable doubt that the appellant had touched the complainant in a sexual manner. [ 17 ] The judge then reviewed the evidence of the complainant’s state of mind to determine whether she had consented to the touching.

When emerging from sleep, she did not consent because of her state of diminished consciousness. When she awoke, the complainant expressly told the appellant to stop touching her and to leave. This was sufficient for the judge to conclude that on the whole of the evidence, the Crown had proved beyond a reasonable doubt that the complainant did not consent to sex with the appellant. This conclusion was not compromised, he wrote, by the complainant’s testimony that she might have said “yes” in a semi-conscious state when the appellant first asked her whether she wanted to have intercourse.

Moreover, the evidence did not support a claim of a mistaken belief in consent and the appellant did not take reasonable steps to ascertain that the complainant was consenting to sexual activity. [ 18 ] The judge concluded that the evidence proved beyond a reasonable doubt that the appellant broke and entered the complainant’s apartment and therein committed a sexual assault on her as charged.

III Grounds for appeal [ 19 ] The appellant raises multiple grounds of appeal that can be grouped under two general headings: (1) arguments relating to whether the judge erred in deciding that the appellant did break-and-enter into the apartment of the complainant; and (2) arguments relating to whether the judge erred in deciding that the appellant sexually assaulted the complainant in the apartment.

In respect of considerations relating to both the break-and-entry and the sexual assault aspects of the charge, the appellant argues that, in view of the evidence adduced at trial, the judge rendered an unreasonable verdict. IV Analysis IV.A Break and Entry [ 20 ] The appellant argues that the judge erred in deciding that he broke and entered the complainant’s apartment without lawful justification or excuse. [ 21 ] At trial, the appellant testified that prior to entering the apartment, he saw the kitchen in disarray through what he claimed was an open door.

He admits that he entered the apartment uninvited, but says that he suspected foul play given what he saw through the door and, accordingly, the judge should have found that he broke and entered into the apartment with a lawful excuse. [ 22 ] The appellant submits that the judge erred in his statement of the law relating to break-and-entry.

Furthermore, his conclusion that the appellant did break and enter the apartment without lawful excuse was unreasonable in that it was not properly substantiated by the evidence. [ 23 ] Did the judge err in his statement of the law on this point? [ 24 ] In support of his finding that the appellant had committed a break-and-enter, the judge wrote: [8] In the absence of a lawful justification or excuse a person who intentionally enters a dwelling-house through an opening breaks into those premises. The break-and-enter occurs at the moment when any part of his or her person is within that place.

In Quebec protection against such invasions of privacy is reinforced by the Charter of [ Human ] Rights and Freedoms and by the Civil Code. I do

not accept that a custodian’s observation through an open door of disarray in a tenant’s apartment is, without more, a lawful justification or excuse intentionally to enter that dwelling. In this case there was nothing more. There was no sound and no movement. Even if the text of the Code did not require proof on a balance of probabilities, the evidence gives no air of reality to a claim of lawful justification or excuse. Mere curiosity or unfounded suspicion will not suffice. I am therefore satisfied beyond reasonable doubt that Mr.

Todorov broke and entered the complainant’s apartment. [Footnotes omitted.] [ 25 ] The appellant submits that the judge committed two overriding errors in paragraph [8]. [ 26 ] First, by referring to provisions of the Charter of Human Rights and Freedoms and the Civil Code that recognize the complainant’s right to privacy in her apartment, the judge is said to have imposed an unfair burden on the appellant.

The appellant argues that, in light of the protection of the right of privacy in the Charter and the Civil Code cited by the judge, any non-consensual entry into a dwelling-place would be considered as “illegal”. And yet, the appellant continues, the Criminal Code allows for non-consensual break- and-entry where an accused shows lawful justification or excuse.

Thus, in citing the Charter and the Civil Code , the judge is said to have betrayed his mistaken view that the infringement of the right of privacy meant that the appellant’s claim of lawful excuse was necessarily unfounded. [ 27 ] This ground of appeal is without merit. [ 28 ] The judge applied the presumption in paragraph 350 (b)(ii) Cr.C . to the circumstances of the appellant. He did not apply the Charter or the Civil Code but merely cited them in the course of his discussion of the applicable criminal law.

In so doing, he did not mistakenly suggest that the right to privacy is absolute right as it is relevant to the law of break-and-entry, nor did he indicate that the protection of the right in the Charter or the Civil Code either precluded or made more onerous a claim of lawful justification for break- and-entry under the Criminal Code . [ 29 ] As the judge rightly noted, privacy is a policy consideration relevant to understanding the rule in paragraph 350 (b)(ii) Cr.C . that places the burden of proving the lawful justification for a break-and-entry on the accused.

The judge’s reasons make plain that he did not consider the break-and-entry to be inherently illegal and inexcusable by reason of a perceived infringement of the complainant’s right to privacy. Notwithstanding the non-consensual character of the entry, the judge explicitly and correctly considered whether the break-and-entry was justified under paragraph 350(b)(ii) Cr.C. in the circumstances.

The argument based on the Charter and the Civil Code is rejected. [ 30 ] Second, the appellant submits the judge erred in paragraph [8] of his reasons when he stated, as a supposedly abstract proposition, that a janitor’s observation of disarray through an open door in a tenant’s apartment, “without more”, cannot ground a lawful excuse for non-consensual entry.

The appellant argues that, contrary to what the judge suggested, disarray on its own could indicate the presence of foul play that would justify uninvited entry into a dwelling-place. [ 31 ] The appellant is again mistaken. [ 32 ] Read in the context of the whole decision, it is clear that the judge’s comment referred to the actual extent of the disarray observed by the appellant as being insufficient to ground a lawful excuse for entry in the circumstances.

The judge was right to say that there was no sound or movement that might have suggested the presence of an intruder in the apartment when the appellant entered. Moreover the judge correctly described the evidence of disarray in paragraph [4] of his reasons: “Although the light was dim, it was sufficient to illuminate the kitchen from the front of the apartment. The kitchen was in complete disorder with strewn rubbish, unwashed dishes, scattered papers and other clutter. Mr. Todorov then entered the apartment and made his way to the complainant’s bedroom”.

Had the appellant seen material evidence more indicative of foul play – say, for example, broken furniture or blood on the floor – the judge would not have merely described it as “disarray”. Moreover, the judge’s reasons do not exclude the possibility that compelling material evidence of foul play could justify finding a lawful excuse for entry. This argument is rejected. [ 33 ] The appellant also argues that the judge erred in concluding that, on the evidence, the element of “break / effraction ”, in respect of the break-and-entry, had been proved beyond a reasonable doubt.

As noted above, the judge wrote in paragraph [8] that the evidence gives no air of reality to the appellant’s claim of lawful justification or excuse for entering the complainant’s apartment without her consent. [ 34 ] The appellant raises three different arguments to dispute this finding. [ 35 ] First, he says the judge erred by basing his decision on evidence of lawful excuse relating to the appellant’s conduct after the time he entered the apartment. The appellant points to what he says is a mistake in paragraph [7] of the reasons when the judge wrote: “It is self-evident that by the time Mr.

Todorov arrived at the bedroom and observed the complainant in her bed there was no emergency of any kind”. [ 36 ] The appellant is right to say that, given the terms of sections 348 , 349 and 350 Cr.C . , the relevant time for determining whether there was a lawful excuse for the break-and-entry is the time of entry. [1] [ 37 ] That said, the judge did not err by deciding on the absence of a lawful excuse at another time. While the judge did refer to the lack of emergency a later moment, he did not fail to evaluate the appellant’s reasons for entering the apartment pursuant to

section 350 Cr.C . at the time of entry.

In paragraph [7] of his reasons, the judge notes the disarray the appellant saw in the kitchen as he entered the apartment; the judge notes that the appellant heard nothing and saw no movement at that time; the judge added that the appellant chose not to make an emergency call but proceed into the apartment at that moment. [ 38 ] The judge only pointed to the later moment in the bedroom as an indication of the appellant’s post-entry conduct that showed how unlikely it was that the appellant had apprehended a situation of emergency – be it a burglary or violence – when he entered the apartment.

The appellant’s account of his own post-entry conduct was part of the evidence that rendered his testimony implausible. The

argument relating to the time of the entry is thus rejected. [ 39 ] Second, the appellant says that the judge’s conclusion that he had entered the apartment without lawful justification or excuse was not properly based on the evidence adduced at trial.

The appellant indicates that as one of the sources of his view that the judge arrived at an unreasonable verdict. [ 40 ] Did the judge misapprehend the evidence when he decided that there was “no air of reality” to the appellant’s claim of a lawful excuse for breaking and entering the apartment? [ 41 ] A review of the evidence through the lens of judicial experience shows that the judge’s decision on this point is a reasonable one. This aspect of the judgment reflects a conclusion that a properly instructed jury, acting judicially, could reasonably have rendered, according to the test set forth in R. v.

Biniaris . [2] [ 42 ] The appellant testified that he saw, through the open door leading to the kitchen, a scene of great disarray (the translator recorded this as “grand désordre”). He spoke of food and plates on the floor, along with clothes, papers and newspapers. This prompted him, according to his testimony, to enter the apartment to see if something was wrong. He said he suspected theft or even that someone had been unlawfully killed (the translator recorded this as “vol”, “cambriolage” or “assassinat”).

On cross-examination the appellant added that he did not observe anything broken in the kitchen, nor did he see any evidence of blood. He saw no-one and heard nothing. He said he did not call or telephone for help but went immediately into the apartment, alone, to see what was amiss. He proceeded directly to the bedroom, where he saw a light, and did not concern himself with the other rooms or spaces in the darkened apartment along the way. When he arrived in the bedroom, he saw the complainant in bed and said “What’s happened here?

You want someone to fuck you?”. [ 43 ] There were other witnesses who attested to the degree of disarray in the kitchen. The complainant herself said it was “très malpropre et très en désordre”. She explained that, because it was the end of the school year, there were unwashed dishes and food about and that papers were to be found “un peu partout”.

The police officer Houle gave testimony to the same general effect. [ 44 ] In support of his argument that the judge’s conclusion does not properly rest on the evidence, the appellant simply asserts that he had demonstrated, on the balance of probabilities, that his presence on the apartment was justified, and that the judge erred in deciding otherwise. [ 45 ] The appellant has failed to substantiate his argument. [ 46 ] The judge’s conclusion is a reasonable one.

It was reasonable to conclude that the disarray observed by all witnesses – an unkempt kitchen – did not demonstrate any likelihood of theft or of other foul play that would have justified entry into the apartment. The fact noted that there were no other signs of foul play and that the appellant chose not to call for help serve to confirm the reasonableness of the judge’s conclusion.

The fact that the door was unlocked, and perhaps even open, is not incompatible with this finding when one considers that the evidence showed – including evidence from the appellant – that to access that unlocked door an intruder would have had to go through two other locked doors leading to the outside of the apartment building. [ 47 ] Finally, at the hearing counsel for the appellant added what he called a supplementary argument on this point.

He proposed a reading of the reference to “the remainder of the evidence” in paragraph [5] of the judge’s reasons that suggested the judge wrongly set aside the uncontested facts in deciding whether there was a break-and-entry. On this view, the judge is said to have wrongly discounted the facts he himself set out in the previous two paragraphs in deciding that there was no lawful excuse for entry into the apartment. [ 48 ] This argument is utterly devoid of merit.

Not only is it based on a misreading of paragraph [5] and its link to the account of undisputed facts in paragraph [4], but it ignores the consideration of undisputed facts in paragraphs [6] and the references, by the judge, to his consideration of the whole of the evidence in deciding the case. [ 49 ] In sum, the judge’s conclusion that the appellant broke and entered into the complainant’s apartment should not be disturbed.

IV.B Sexual Assault [ 50 ] As is often the case where the alleged offence is sexual assault, the complainant and the accused were alone at the time of the incident that gave rise to the charge and they offered, at trial, contradictory versions of the events. [ 51 ] The appellant submits that the judge erred in law by failing to apply correctly the principles set forth in R. v.

W.(D.) . [3] Instead, he is said to have simply chose the version of the complainant over that of the appellant as the basis for the guilty verdict. [ 52 ] The appellant acknowledges that the judge stated the law prohibiting him from choosing between conflicting versions correctly. The appellant says, however, that the law was applied in a manner that wrongly deprived him of the protection of the presumption of innocence. [ 53 ] The appellant is mistaken.

The judge made no such error. [ 54 ] The judge was most careful not to simply choose the complainant’s version over that of the appellant and explained his reasoning in a manner that respects the injunctions of the Supreme Court in R. v. W.(D.) . Recognizing that the appellant had nothing to prove, the judge analyzed his testimony and explained why he did not find it credible. That testimony did not, for the judge, give rise to a reasonable doubt that the appellant touched the complainant in a sexual manner without her consent.

He explained in detail why the complainant’s version was credible and considered at length the testimony of the other witnesses. He then weighed the whole of the evidence, concluding that the Crown had proven guilt beyond a reasonable doubt (see, in particular, paras. [2] and [22] to [26]). The ground of appeal based on R. v. W.(D.) is rejected. [ 55 ] The appellant also argues that the judge erred in law by rendering an unreasonable verdict.

[56] He says the verdict is unreasonable in that the judge wrongly set aside aspects of the evidence favourable to the appellant, andthat he wrongly decided the testimony of the appellant was not credible notwithstanding the fact that most of what he said wascorroborated by other witnesses. The judge is also said to have failed to consider contradictions in the testimony given by thecomplainant when he concluded that her testimony was credible and reliable. [57] In R. v.

W.H.,[4] Cromwell J. reviewed the state of the law relating to unreasonable verdicts, drawing the distinction betweenthe nature of appellate review for a verdict rendered by a judge (like our case) and for that rendered by a jury: [26] A verdict is unreasonable or cannot be supported by the evidence if it is one that a properly instructed jury acting judicially couldnot reasonably have rendered: R. v. Yebes, (SCC), [1987] 2 S.C.R. 168, at p. 185; R. v. Biniaris, 2000 SCC 15 ,[2000] 1 S.C.R. 381, at para. 36.

While the same test was traditionally applied to verdicts by both juries and trial judges, the more recentjurisprudence from the Court has expanded somewhat the scope of review for unreasonableness in the case of verdicts reached by trialjudges: R. v. Beaudry, 2007 SCC 5 , [2007] 1 S.C.R. 190; R. v. Sinclair, 2011 SCC 40 , [2011] 3 S.C.R. 3. Thisdevelopment recognizes a practical distinction between reasonableness review of a trial judge’s verdict and of a jury verdict: judges,unlike juries, give reasons for their findings which the appellate court may review and consider as part of its reasonableness analysis.

However, this expanded reasonableness review of verdicts entered by trial judges does not apply to reasonableness review of a juryverdict. [58] In undertaking its review in this case, the Court must give due weight to the advantage of the judge, as trier of fact, who saw theevidence firsthand as it unfolded. This is particularly true in respect of findings made by the judge relating to credibility of witnesses, akey aspect of the case at bar. Moreover, an appellate court cannot simply give effect to its sense of a lurking doubt based on its reading ofthe written record.

That said, the Court’s review is not limited to assessing the sufficiency of the evidence. Here again, Cromwell J.’sexplanation in W.H., in which he drew in particular on R. v. Biniaris, supra, is instructive: [28] […] A positive answer to the question of whether there is some evidence which, if believed, supports the conviction does notexhaust the role of the reviewing court.

Rather, the court is required “to review, analyse and, within the limits of appellate disadvantage,weigh the evidence” (Biniaris, at para. 36) and consider through the lens of judicial experience, whether “judicial fact-finding precludesthe conclusion reached by the jury”: para. 39 (emphasis added).

Thus, in deciding whether the verdict is one which a properly instructedjury acting judicially could reasonably have rendered, the reviewing court must ask not only whether there is evidence in the record tosupport the verdict, but also whether the jury’s conclusion conflicts with the bulk of judicial experience: Biniaris, at para. 40. [59] Did the judge render an unreasonable verdict or one that cannot be supported by the evidence? [60] As noted above, the judge disbelieved the appellant’s account of the events that took place in the complainant’s bedroom,including his assertion that after undressing while sexually aroused, he did not touch the complainant in a sexual manner.

On the wholeof the evidence, including the complainant’s testimony, the judge concluded that the appellant touched the complainant in a sexualmanner, without her consent, and without an honest belief that she consented. [61] The appellant argues that the judge wrongly gave credit to the testimony of the complainant which, he says, is improbable andsuffers from contradictions. [62] In the course of argument, the appellant appears to suggest that the complainant actually lured him into the apartment to haveintercourse with her.

He says that on a previous occasion, she purposefully left her curtains open so that passers-by could see her nakedand engaged in sexual intercourse with her boyfriend. The appellant adds that it was likely that the complainant found him attractive andleft the door to her apartment open to entice him into the apartment in order to seduce him. [63] These assertions have no foundation in the evidence and appear to be an unfair effort to depict the complainant as somehowresponsible for the assault.

The evidence from both the complainant and the appellant are the same: the two had not met prior to theincident of December 15, 2009. There was some evidence that the appellant had fleetingly seen the complainant naked through awindow but, even if that were true, nothing in the record suggests that she left the curtains open by design in order to show herself topassers-by.

The appellant’s spouse testified that she had once seen the complainant look fixedly at her husband but, even if that weretrue, nothing in the record suggests complainant sought to seduce him or that she left her door open with that purpose in mind. [64] The appellant also says that it is improbable that the occupant of the apartment next door did not hear the complainant’srepeated saying “Get out!” to the appellant.

But the appellant neglects to mention that this person did not testify at the trial. [65] The appellant argues that it is improbable that the complainant believed, during the early portion of the encounter, that she waswith her boyfriend, and cites her possible affirmative response to the appellant’s question about whether she wanted to have intercourseas evidence that she did not object to his presence or to eventual sexual touching by him. [66] The judge explained that he believed the complainant because she gave clear and precise testimony, and that she was not shy toinclude aspects in her account that might show her in an unfavourable light in the eyes of some.

These included the fact that she used avibrator; that she recounted having an erotic dream as she was awakening; that she was slow to respond initially to the appellant’spresence because she thought it might be her boyfriend in her sleepy state; that she might have said “yes” to the appellant’s questioningwhile semi-conscious; that she left the apartment in disarray and that she left the door unlocked; and that she took some time to report thematter to the police.

The judge interpreted this to be a sign of candour and he decided, taking into account the “unusual” character of heraccount, that the complainant’s testimony was entirely credible (para. [25]). [67] The judge’s finding is fully explained in his reasons and has not been shown to be wrong in any material way. Mindful of thedeference owed to this finding of credibility, the Court sees no basis for considering the judge’s conclusion on this point to beunreasonable.

[ 68 ] Similarly, the appellant has failed to convince the Court that the judge’s finding of his account to be unworthy of credit is unreasonable. He has not shown that the judge set aside or minimized aspects of the evidence favourable to the appellant.

He has not shown that the judge ignored testimony from other witnesses that corroborated the appellant that would impugn the judge’s view that the whole of the evidence did not raise a reasonable doubt. [ 69 ] Apart from the complainant, only the appellant gave evidence as to what transpired in the bedroom. [ 70 ] His wife did testify that the appellant went down to the basement to check the water-heater at 3 a.m. and that she called him sometime later from a balcony to come back upstairs.

While this confirmed part of his account, it says nothing as to whether he touched the complainant in a sexual manner and does not make his assertion to the contrary inherently more credible. As to the wife’s testimony that the complainant stared fixedly at the appellant on one occasion, it may be recalled that the appellant only mentioned seeing the complainant for two or three seconds through a window. The owner of the apartment building did not provide evidence that corroborated the appellant’s account of the alleged assault.

She did say that the appellant had told her that he was attracted to the complainant and that he was troubled when he told her what had happened in the apartment, but this evidence, at best, is neutral in the circumstances. [ 71 ] The judge, who heard the testimony of the appellant firsthand, described it as inherently improbable. This has not been shown to be wrong in any way. [ 72 ] None of the arguments advanced by the appellant in support of the view that the verdict is unreasonable is meritorious.

The appellant has failed to show that the verdict the judge arrived at was one that a properly instructed jury, acting judicially, could not reasonably have rendered. [ 73 ] FOR THE AFOREMENTIONED REASONS , the Court: [ 74 ] DISMISSES the appeal. FRANÇOIS PELLETIER, J.A. NICHOLAS KASIRER, J.A. MARTIN VAUCLAIR, J.A. Mtre Robert Brankin Robert Brankin, avocat For the appellant Mtre Richard Audet Criminal and Penal Prosecuting Attorney For the respondent Date of hearing: April 29, 2015