2022 QCCA 1487, 2022 QCCA 1487

Carrier c. R. 2022 QCCA 1487 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No : 200-10-003895-211 (635-01-018589-193) MINUTES OF THE HEARING WARNING: The Criminal Code forbids any information that could identify the victim from being published in any document or broadcast or transmitted in any way ( s. 486.4

(1) Cr.C .). DATE : October 7, 2022 PANEL: THE HONOURABLE ROBERT M. MAINVILLE, J.A. STEPHEN W. HAMILTON, J.A. SOPHIE LAVALLÉE, J.A. APPELLANT COUNSEL MICHAEL CARRIER Mtre LOUIS-NICHOLAS COUPAL (ABSENT) (Coupal, Chauvelot) RESPONDENT COUNSEL HIS MAJESTY THE KING Mtre RAPHAËL LACOSTE (ABSENT) (Director of Criminal and Penal Prosecutions) On appeal from a judgment rendered on June 16, 2021 by the Honourable Christian Leblanc of the Court of Quebec, District of Abitibi.

NATURE OF THE APPEAL : Sexual assault (guilt) Clerk at the hearing: Alysson Roussel Courtroom : 4.33 HEARING 9 :33 am Continuation of the hearing held on October 5, 2022. The parties were excused from appearing in Court; Judgment; End of the hearing. Alysson Roussel, clerk at the hearing JUDGMENT WARNING: The Criminal Code forbids any information that could identify the victim from being published in any document or broadcast or transmitted in any way ( s. 486.4

(1) Cr.C .). [ 1 ] The appellant, Michael Carrier, appeals against a guilty verdict rendered on June 16, 2021, by the Court of Quebec (the honourable Christian Leblanc), on a charge of sexual assault committed against a minor ( s. 271 (

a) Cr.C . ). [1] [ 2 ] On October 1, 2021, the judge sentenced the appellant to 997 days of detention, which includes 178 days of interim detention, for a remaining sentence of 730 days. [2] [ 3 ] In his grounds, the appellant challenges: 1. the delay in carrying out the trial judge’s order to prepare a transcript, in a context in which the quality of the audio recording of the hearing was inadequate; 2. the judge’s interlocutory decisions, which the appellant alleges (

a) unduly limited the complainant’s cross-examination; (

b) permitted illegal questions during the appellant’s cross-examination and (

c) wrongly admitted the appellant’s out-of-court statement into evidence; 3. the verdict, particularly with respect to errors the judge allegedly committed in applying R. v. W.(D.) [3] ; and 4. the analysis on the merits carried out by the judge, who identified the issue in dispute as being solely the matter of the attacker’s identity.

I. The order to prepare a transcript [ 4 ] This first ground of appeal, which the appellant sets out in general terms, consists in essence of a complaint regarding the poor quality of the audio recording of the hearing held on April 7 and 22, 2021, which resulted in a delay in the delivery of the transcript.

The appellant claims that this situation is a major source of prejudice and limits the possibility of meaningful appellate review, thereby justifying a constitutional remedy consisting in a stay of proceedings. [ 5 ] An examination of the record reveals that the application to adjourn the trial and the application for a mistrial, which applications were presented on October 1, 2021, at the sentencing hearing, were tardy. Indeed, the parties had been aware of this situation since May 17, 2021. [4] The judge, however, did not summarily dismiss the appellant’s applications because they were tardy.

He assessed them on the merits—considering their chances of success—before concluding that they were unfounded. [5] [ 6 ] There is no error in this decision. A reading of the stenographer’s notes for the October 1, 2021, hearing, indicates that, at that hearing, counsel for the appellant was unable to show a serious possibility that the inaudible passages in the transcript contained an error that would deprive his client of a ground of appeal. He referred, instead, to a sense of discomfort.

At most, he expressed concern about the lack of resources allocated to the administration of justice. [6] [ 7 ] Admittedly, it may be regrettable that the transcript of the hearing held on April 7 and 22, 2021, contains numerous inaudible passages.

Without any prejudice or error, however, no remedy is possible. [7] Courts do not order a new trial every time a transcript is incomplete. “As a general rule, there must be a serious possibility that there was an error in the missing portion of the charge, or that the omission deprived the appellant of a ground of appeal.” [8] [ 8 ] Absent any prejudice, as is the case here, an incomplete transcription of the evidence is considered a procedural irregularity that can be remedied by an appellate court. [9] The appellant thus had a full and complete defence, such that this first ground must fail. II.

The judge’s interlocutory decisions A .

Admissibility of a question about the complainant’s lack of sexual activity [ 9 ] On April 7, 2021, during the complainant’s cross-examination, Crown counsel objected to the following question posed by counsel for the appellant: “Would you remember as part of that rape kit, medical examination, confirming that you had not had a sexual activity with somebody else five days earlier?” [10] [ 10 ] As was the case in first instance, Crown counsel argues that the judge should have rejected the question because it concerned the complainant’s sexual activity, without a prior application having been made, as required by s. 276 (2) Cr.C . [ 11 ] The judge concluded that the question was not covered by s. 276 (2) Cr.C . but nevertheless allowed the objection on the basis of relevance and barred counsel for the appellant from asking the complainant two other questions about her sexual activities and personal hygiene prior to the forensic evidence kit test having been performed: First of all, 276 doesn’t prohibit questions to be asked to a plaintiff about activity, sexual activity in which she would have engaged in the past, either with the accused or anybody else.

It cannot be done in the particular context with the objective of asking the Court to have ... to inference ... to conclusion that, one, that she’s more likely to have consented or, that she’s less worthy of belief. So, those are the two (2) specific circumstances in which those questions cannot be asked. But, of course, the

section refers to the fact that the complainant engaged in past sexual activity. So, in this particular scenario, the thing is that she didn’t ... what the Defence wants to question her about is that she would not have engaged in any particular sexual activity within the past... period of time. So, I conclude that 276 do not find application in this particular context. [11] [ 12 ] The judge therefore concluded that s. 276 (2) Cr.C . did not apply because the question put to the complainant was about the absence of sexual activity rather than the existence of such activity.

This was an error in law. [ 13 ] In R. v.

Walendzewicz , the Ontario Court of Appeal clearly ruled that a question about a complainant’s sexual activities—when asked during a forensic examination—does not fall outside the scope of the principle set out in s. 276 Cr.C . , and that any question asked during a cross-examination based on such a prior statement made by the complainant to a nurse carrying out the forensic test requires an application for authorization. [12] [ 14 ] While the facts of that case differ from those in the case at bar, and while the issue before the Ontario Court of Appeal was not the same as here, it concluded that an application under s. 276 Cr.C . should have been made in order for counsel for the appellant to cross-examine the complainant on the answer she had given the nurse during the forensic test.

It did not matter whether the answer to the question was yes or no. [ 15 ] As the Court of Appeal of Alberta noted in R. v. McKnight , [13] s. 276 Cr.C . applies to any sexual activity other than the alleged crime: [230] This s 276 legislative regime is most often associated with evidence of “prior sexual activity” or “prior sexual history” – that is, evidence of a complainant’s sexual activity before the alleged offence in question takes place.

It also applies to sexual activity of a complainant that takes place after the alleged offence as well as sexual activity which is “ongoing” in the form of evidence of a sexual relationship between the complainant and the accused at the time of the alleged offence: Barton at para 61, footnote 5; R v Goldfinch , 2019 SCC 38 , [2019] 3 SCR 3 [ Goldfinch ] at para 88 , footnote 10 (per Moldaver J, concurring); R v DK , 2020 ONCA 79 at para 52 , citing R v LS , 2017 ONCA 685 at paras 77-81 .

[ 16 ] In the case at bar, the question asked by the nurse in the questionnaire clearly refers to a sexual activity other than the alleged assault. [14] Thus, an application under s. 276 (2) Cr.C . should have been made, and it follows that the appellant’s first argument must fail. [ 17 ] His second argument can also be succinctly rejected. Indeed, the judge correctly concluded that the questions put to the complainant were irrelevant. Whether the answer was yes or no, it would not affect the complainant’s credibility because her testimony was not inconsistent with either answer. B .

Admissibility of testimony pertaining to communications received by the complainant [ 18 ] The appellant objected to the complainant’s testimony about two text messages that the appellant’s wife, Jessica, had sent her via Messenger, [15] arguing that these texts were irrelevant and had not been introduced by the [ translation ] “proper witness”. [ 19 ] The appellant had announced that Jessica would be a witness in support of his alibi defence. The respondent already had in its possession a statement made by Jessica, in which she had said that she had never attempted to contact the complainant.

The text messages proved that Jessica was lying in that statement. [16] [ 20 ] There is no doubt the messages were relevant. They were a means for impugning the credibility of an alibi witness presented by the appellant. Thus, the judge did not err on the matter of relevance. [ 21 ] While, admittedly, the complainant was not the proper witness to testify about the meaning of these messages, she could testify that she had received them. This served to contradict the version put forth by Jessica.

In any event, at trial, Jessica acknowledged having sent the messages and confirmed the validity of their translation provided by the complainant during her own examination. [17] Consequently, the appellant was not prejudiced by the judge’s decision. C . Objection to a leading question put to a witness [ 22 ] The appellant is of the opinion that the judge should have maintained his objection to a leading question put to a witness, Sergeant Paiement, but fails to identify how this ground of appeal is determinative.

Moreover, when placed in context, this question was not leading—rather it was a question asking for clarification regarding two possible

interpretations of a previous answer provided by the witness. The question, therefore, did not seek to suggest an answer to the witness. D . The appellant’s cross-examination [ 23 ] The appellant argues that his cross-examination did not comply with s. 10 of the Canada Evidence Act , [18] Crown counsel referred him to a prior inconsistent out-of-court statement. [ 24 ] He adds that the trial judge allowed overly broad questions about his prior convictions, such that the prosecution was able to provide propensity evidence within the meaning of R. v.

Handy , [19] thereby violating s. 12 of the Canada Evidence Act . [ 25 ] These grounds must be rejected. [ 26 ] The procedure provided for in s. 10 of the Canada Evidence Act was followed. The Crown and the trial judge made sure to have the appellant reread the relevant passages of his prior statement before contradicting him based on his testimony.

Moreover, the appellant does not provide the reasons why the verdict should be reversed based on this ground. [ 27 ] As to the second argument, the purpose of the Crown’s questions was not to provide propensity evidence, but to impugn the appellant’s credibility, by showing that he was lying or was intentionally omitting answers when he stated that he had never hit or assaulted his wife, Jessica. At that time, Crown counsel specifically told the appellant that he did not want to know the facts pertaining to his prior convictions.

These questions sought to impugn the appellant’s credibility and were therefore in compliance with s. 12 of the Canada Evidence Act , which permits questions about charges, convictions and sentencing, without however dwelling on the facts leading thereto. [20] Moreover, the trial judge specified that he would use these answers solely to assess the appellant’s credibility. E .

The appellant’s out-of-court statement [ 28 ] At trial, appellant’s counsel objected to the use of the statement appellant had made to the police during his arrest, arguing that its prejudicial effect outweighed its probative value. [ 29 ] On April 22, 2021, the judge ruled on a voir dire and allowed the filing of the statement into evidence, not as an admission, but solely for purposes of the appellant’s cross-examination. [21] [ 30 ] The power of courts to exclude such evidence is rooted in the judge-made rule that the probative value of evidence should outweigh its potential prejudice. [22] It is common ground that this assessment warrants deference. [23] [ 31 ] In the present case, the appellant admitted the voluntariness of the statement. [24] [ 32 ] The appellant’s contention that the prejudicial effect results instead from the unreliability of the statement, because it was not recorded in audio format, does not withstand analysis. [ 33 ] The Court has set out the applicable law as follows: [ translation ]

[23] The Court has previously stated that it is desirable for out-of-court statements made by accused persons to be recorded in order to provide their context and ensure their reliability. Failure to do so, however, does not render them inadmissible, but the Crown must then establish circumstances that ensure their content is reliable and probative. [25] [ 34 ] It is established that even if not recorded, such a statement is not inherently suspicious unless the circumstances demonstrate that the police officers attempted to avoid a recording.

In the present case, the trial judge found that no recording system was available. The written notes were taken simultaneously with the examination and there is nothing to suggest that any relevant answers were omitted. The appellant did not testify at the voir dire and therefore did not offer a version that contradicts that of the police officers, who testified before the judge.

The judge concluded that they had acted in good faith, that their notes were reliable and that the context ensured there had been no misinterpretation of what the appellant had said. [ 35 ] Finally, the judge specified that he was not giving this statement the same probative value as a word-for-word written statement read and signed by an accused, and he did not take it into account as an admission. [ 36 ] There is no error in this decision. III. Application of R. v. W.(D.) [ 37 ] The appellant attacks the trial judge’s application of R. v.

W.(D.) , arguing that the judge failed to consider the reliability of the Crown’s case, giving credence to the prosecution’s evidence solely because he had rejected the appellant’s testimony. In so doing, he allegedly reversed the burden of proof and erred in law.

Moreover, the appellant claims the judge made several errors in assessing the evidence, by failing to consider elements that were favourable to the appellant, such as the theft of the complainant’s purse and her silence on that point, and by failing to assess the evidence as a whole. [ 38 ] The appellant is mistaken. [ 39 ] Upon reading the judgment, one notes that the trial judge analyzed all of the evidence prior to finding the appellant guilty.

Contrary to what the appellant argues, the trial judge’s analysis based on the third step of W.(D.) is adequate. [ 40 ] Lastly, regarding the risk of Crown witness contamination, both of the witnesses targeted by the appellant’s argument to that effect were examined on this point, and their testimony revealed that there had been no contamination. Indeed, the judge did not fail to consider this aspect, ruling not only on the absence of antagonism, but also on the absence of any possibility of fabrication among the witnesses. [26] IV.

Identification of the appellant [ 41 ] The appellant alleges that the judge erred by limiting the issue to the identification of the complainant’s assailant. He submits that this was not the only live issue, and that the essential elements of the offence were also in question. [ 42 ] The judge did not err in this regard. Indeed, upon reading the judgment, there is no doubt: the trial judge stated that he was convinced the complainant had been sexually assaulted.

He explained that not only was the complainant’s version uncontradicted, but her aunt E. had seen a man having sexual relations in the room in which the complainant was sleeping. Consequently, the Crown had met the burden of proving that the complainant had been sexually assaulted. All that was left for it to do was to prove the identity of the assailant. [ 43 ] The appellant, having failed to point to an error of law casting doubt on the judge’s finding regarding his identification, is essentially asking the Court to retry the case, which is not its role.

FOR THESE REASONS, THE COURT: [ 44 ] DISMISSES the appeal. ROBERT M. MAINVILLE, J.A. STEPHEN W. HAMILTON, J.A.

SOPHIE LAVALLÉE, J.A.