R. v. Yebes, 2017 QCCA 1697

Fazio c. R. 2017 QCCA 1697COURT OF APPEAL CANADAPROVINCE OF QUEBECREGISTRY OFMONTREAL No.: 500-10-005927-155(500-73-003759-129) DATE: October 31, 2017 CORAM:THE HONOURABLE MARK SCHRAGER, J.A. ROBERT M. MAINVILLE, J.A. MARIE-JOSÉE HOGUE, J.A. FRANCESCO FAZIOAPPELLANT — Accusedv. HER MAJESTY THE QUEENRESPONDENT — Prosecutrix JUDGMENT [1] The appellant was employed as an auditor by the Canada Revenue Agency (“CRA”) and was tasked with the audit of acompany which operated a restaurant.

Once he completed the audit, he presented his results to the manager and allegedly asked him ifthey could “go in the back and talk.” The manager testified that they went together into the handicapped adapted bathroom and theappellant explained that, given the results of the audit, a huge amount of money would be requested by the CRA. The manager alsotestified that the appellant then asked for the payment of $90,000 in exchange for which he would make sure that the notice ofassessment to be issued would be for a reasonable amount.

The manager refused. [2] Most of the evidence at trial was adduced through admissions.

The principal disputed fact was whether the appellant requesteda payment of $90,000 in exchange for a reduction of the tax assessment to be issued. [3] The trial lasted three days during which five witnesses were heard, including the manager and the appellant. [4] On June 12, 2015, the Court of Quebec, district of Montreal (the Honourable Manon Ouimet) found the Appellant guilty ofbribery of an officer, breach of trust by a public officer and extortion. [5] On August 26, 2015, his Motion for Leave to Appeal the Convictions was deferred to the Court. [6] The appellant raises three grounds of appeal, all in relation to the trial judge’s assessment of credibility: 6.1.

Did the trial judge err in law in assessing the credibility of the appellant? 6.2. Did the trial judge err in fact and in law by not giving the benefit of the doubt to the appellant? 6.3.

Did the trial judge err in fact and in law in assessing the manager’s credibility and reliability? [7] Since the appellant is contesting a verdict based essentially on the judge’s assessment of witness credibility, it is useful to recallthe words of the Supreme Court of Canada describing the test to be applied in such circumstances: Similarly, in S. (P.L.), Sopinka J., writing for himself, Lamer C.J., and La Forest and McLachlin JJ., adopted the test set out in Yebes.

Sopinka J. emphasized that the court of appeal is properly engaged in a review of the facts pursuant to s. 686(1)(a)(i) (at p. 915): In an appeal founded on s. 686(1)(a)(

i) the court is engaged in a review of the facts. The role of the Court of Appeal is to determinewhether on the facts that were before the trier of fact a jury properly instructed and acting reasonably could convict. The court reviewsthe evidence that was before the trier of fact and after re-examining and, to some extent, reweighing the evidence, determines whether itmeets the test. See R. v. Yebes, (SCC), [1987] 2 S.C.R. 168.

It is thus clear that a court of appeal, in determining whether the trier of fact could reasonably have reached the conclusion that theaccused is guilty beyond a reasonable doubt, must re-examine, and to some extent at least, reweigh and consider the effect of theevidence. The only question remaining is whether this rule applies to verdicts based on findings of credibility. In my opinion, it does. The

test remains the same: could a jury or judge properly instructed and acting reasonably have convicted? That said, in applying the test thecourt of appeal should show great deference to findings of credibility made at trial. This Court has repeatedly affirmed the importance oftaking into account the special position of the trier of fact on matters of credibility: White v. The King, (SCC), [1947]S.C.R. 268, at p. 272; R. v. M. (S.H.), (SCC), [1989] 2 S.C.R. 446, at pp. 465-466. The trial judge has the advantage,denied to the appellate court, of seeing and hearing the evidence of witnesses.

However, as a matter of law it remains open to anappellate court to overturn a verdict based on findings of credibility where, after considering all the evidence and having due regard tothe advantages afforded to the trial judge, it concludes that the verdict is unreasonable.[1] [8] Thus, it is a well-established principle that the trial judge’s assessment of witness credibility will not be disturbed unless it canbe demonstrated that the judge committed a palpable and overriding error.[2] [9] Here, the Court is of the view that the errors alleged by the appellant are not palpable and overriding errors. [10] At the hearing, the appellant suggested that the trial judge assessed his credibility mainly as a function of his demeanour in thewitness box, which the appellant claims is a “pseudo-science”.

Yet, in R. v. Gagnon[3], the Supreme Court of Canada allowed theCrown’s appeal on the basis that the majority of the appellate court had ignored the trial judge’s unique position to see and hearwitnesses and had substituted its own assessment of credibility for the trial judge’s view by impugning the reasons for judgment for notexplaining why a reasonable doubt was not raised. Bastarache and Abella JJ. observed, at par. 20: Assessing credibility is not a science.

It is very difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is whythis Court decided, most recently in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptionsshould be respected. [11] There is no doubt that a trial judge can take into account a witness’s behaviour and way of testifying in assessing credibility: R.v.

N.S.[4] However, a judge must not be unduly influenced by such a consideration.[5] [12] In this case, the judge did consider the appellant’s demeanour in her assessment of his credibility, this, however, was one onlyof the factors she considered. Here, the trial judge considered many factors other than demeanour to impugn the appellant’s credibility. [13] She expressly referred to the contradictions contained in his testimony, to his failure to mention in his day-to-day report (the T-2020), anything with respect to the threats allegedly made by the manager. Moreover, she took into account the testimony of Ms.

Drouin,the employee to whom the file was transferred, who said that this kind of information should appear in the T-2020 and that she wasnever informed, in any way, of the alleged threats. [14] The appellant also claims that the trial judge misinterpreted his testimony and drew conclusions that were not supported by theevidence. He maintains that she erroneously concluded that he did not deny having made the offer to the manager while the transcriptclearly shows that he did deny it. [15] The Court is of the view that the trial judge did not reach such a conclusion.

Rather, she pointed out that the appellant failed toconvince her that he was sincere in his denial.

Although the Court recognizes that the words the judge used to express herself could havebeen better chosen, they do not suggest that she misinterpreted his testimony. [16] She also gave the reasons for which the appellant’s testimony did not create a reasonable doubt: - “[…] I do not consider his testimony was sincere and honest.”; - “He was talking and talking, as if he was reciting a learned by heart story.”; - “During the first part of his testimony, he was looking at the ceiling, to the point that I was wondering if I would invite him to lookat me, which he finally did on the next morning.”; - “He said to the Court he told his boss he had safety concerns in the file, but he said to Madame Drouin he was disappointed the filewas assigned to someone else.

This is contradictory.”; - “There is not even the shadow of a threat from Stamatis in the Accused’s file.”; - “I conclude that no threats were uttered by Stamatis. The story was fabricated because the Accused felt he needed an explanation forhis withdrawal from the file, while, from an objective point of view, there was no need at all.”; - “We are at a point in time where all the information is already gathered and the paperwork done.

It is surprising that a bankstatement is still missing and, anyways, it seems unusual to meet someone at his workplace at the stage of negotiation.” [17] The Court finds these reasons to be both sufficient and reasonable. [18] The trial judge also provided reasons for which she found the manager credible: - “[…] he had nothing to gain in this police investigation […]”; - “[…] he testified in a sincere manner […]”; - “Who discussed the matter first with the father is a detail that is not relevant to the story.

Stamatis had no reason to lie on thistopic.”; - “I’m deeply convinced that he could have but that he did not invent a story to get money from his father. There is no evidence that

he was in a desperate financial situation.”; - “Finally, he never called the police. When the investigators met him in two thousand and eleven (2011), the tax litigation was far behind. He had no reason at all to relate then a story he would have fabricated six (6) years earlier.” [ 19 ] Again, the Court does not see any error of law or any unreasonable findings. [ 20 ] In effect, the appellant asks the Court to reassess the evidence and to substitute its findings for those of the trial judge.

This is not the role of the Court unless the trial judge’s inferences and findings are unreasonable, which is not the case. [ 21 ] The appellant has not convinced us that the verdict is unreasonable. FOR ALL OF THESE REASONS, THE COURT: [ 22 ] GRANTS the Motion for Leave to Appeal the Convictions; [ 23 ] DISMISSES the appeal; [ 24 ] ORDERS the appellant to constitute himself prisoner to the carceral authorities by November 2, 2017, at 4 PM. MARK SCHRAGER, J.A. ROBERT M. MAINVILLE, J.A. MARIE-JOSÉE HOGUE, J.A. Me Philippe C.

Legault MORNEAU L’ECUYER LA LEGGIA ROULEAU For the appellant Me Catherine Legault PUBLIC PROSECUTION SERVICE OF CANADA For the respondent Date of hearing: October 24, 2017