r v. J. N., 2016 QCCQ 7760

R. c. J.N. 2016 QCCQ 7760 JL-3223 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI TOWN OF CHIBOUGAMAU Criminal and Penal Division N° : 170-01-000096-148 DATE : February 4, 2016 ______________________________________________________________________ PRESENT : THE HONOURABLE PIERRE LORTIE J.Q.C. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v. J. N.

Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ RESTRICTION ON PUBLICATION By Court order made under subsection 486.4(1) of the Criminal Code , information that may identify the persons described in this judgment as the complainants may not be published, broadcasted or transmitted in any manner. DESIGNATIONS [ 1 ] To increase the readability and to avoid any confusion, the Court will occasionally refer to the first names of the persons involved, with no disrespect. INTRODUCTION [ 2 ] J. N. [Mr.

N. or grandfather] faces charges of sexual interference and sexual assault on his granddaughters X [X] and Y [Y], persons under the age of 16 years. The four counts are reproduced in Appendix 1. [ 3 ] X and Y [the complainants] testified that their grandfather touched them in a sexual manner. [ 4 ] Mr. N. flatly denied that any sexual incidents ever took place. ISSUES [ 5 ] The core issues are credibility and reliability. [ 6 ] The following questions will be addressed : 1) Does the Court believe Mr. N.? 2) If not, is the Court convinced beyond a reasonable doubt that Mr. N. is guilty?

PERSONS INVOLVED [ 7 ] Identity is not an issue.

[ 8 ] Mr. N., 70 years old, is the father of E. N. [E.] and the grandfather of the complainants. [ 9 ] Mr. N. has a sister, D. N. [D.]. [ 10 ] X is now 18 years old [1] . She was 14 at the time of the alleged events in 2011 [2] . Her parents are E. and C. F.. Mr. F. passed away many years ago. E. now lives with A. D.. [ 11 ] Y is now 15 years old. She was 11 or 12 at the time of the alleged events. Her parents are E. and A. D.. [ 12 ] Ian Boily [Sgt. Boily] is a Detective Sergeant of the Sûreté du Québec [SQ] in Chibougamau. [ 13 ] The following persons testified (in order) : ▪ For the Crown : X, Sgt.

Boily and Y. ▪ For the Defence : D. and Mr. N.. LANGUAGE [ 14 ] Mr. N.’s first language is Cree. He has an adequate command of English and testified in that language. The listener of the hearing and the reader of the transcript must be cautious. For example, during his testimony, Mr. N. used « his » instead of « her » when he referred to X. According to him, Cree language has a peculiar characteristic about the grammatical gender. [ 15 ] His Counsel is a Francophone who required the assistance of an interpreter. Ms.

Jennifer Scallen, court-certified interpreter, made a consecutive translation for everything spoken by the witnesses (English / French for the English speakers; French / English for the French speakers). The same mode was used during the exchanges between the Court and the Counsels. During the closing arguments, upon consent, Counsels used French with simultaneous translation for Mr. N.. PROCEDURAL MATTERS [ 16 ] Defence did not apply to sever the counts. Mr. N. testified once. [ 17 ] After X’s testimony-in-chief and before the cross-examination, Counsel for the defence admitted that the verbal statements of Mr.

N. to Sgt. Boily on February 13, 2014 were done freely and voluntarily, with respect of his constitutional rights [3] . No voir dire was conducted during the trial. [ 18 ] Upon consent, the complainants were permitted to testify behind a screen, pursuant to s. 486.2 of the Criminal Code [Cr.C.], allowing them not to see their grandfather. [ 19 ] During her testimony, Y demonstrated great nervousness and, sometimes, remained silent. Consequently, the Crown made an application under s. 715.1 Cr.C . to play the video of Y’s interrogation recorded at the SQ detachment on January 6, 2014.

The Court watched the video in public [4] . Subsequently, Y confirmed that she had told the truth in her video. Afterwards, she was cross-examined. Overall, the Court declared the video admissible, subject to the assessment of its probative value. [ 20 ] The Crown made an application for the introduction of similar fact evidence, allowing the Court to consider the evidence of X on the counts relating to Y and vice versa. With Counsels’ agreement, the Court reserved its decision on the motion. CONTEXT [ 21 ] Mr. N.’s wife has been hospitalized almost all her life due to mental illness.

He took care of his seven children. He has thirty grandchildren and two great grandchildren. He makes a living from hunting and trapping. He spends a lot of time in the bush. He has two addresses, one in Town A, the other at Town B near Chibougamau. [ 22 ] Before the alleged events, X had a good relationship with her grandfather. Y had a close one. Sometimes, he had been alone in the bush with his granddaughters to show them how to survive. [ 23 ] Concerning the acts for which Mr.

N. has been charged, X’s testimony can be summarized as follows : 1) In August 2011, she helped her grandfather to move some effects from Chicoutimi to Chibougamau. In that context, she accompanied him at Town B. They were alone. After supper, when it was time for bed, he asked her to sleep beside him. She accepted. 2) Two events occurred during the night :

a) While X was sleeping on her stomach, her grandfather put his hand under her underwear, on her butt, directly on the skin. In shock and scared, she moved right away thinking he would stop. He then took his hand away. She turned onto her back.

b) After a while, he started to put his hand under her underwear again, touching her skin from the front, just above the genital area. He did not enter any finger. Again, she was in shock and scared. She did not know how to react. 3) She got up, went to the bathroom then to the other room. Nothing else happened. The next morning, Mr. N. drove her home in Town A. 4) Subsequently, she learned that her grandfather had invited Y to a cabin. Having a bad feeling, she told Y what had happened

before. Y did not believe it and went with her grandfather. After the stay at the cabin, X met Y and knew that something had happened. 5) Afterwards, X felt unwell and spoke to her tutor. [ 24 ] As for Y (according to the video) : 1) Her grandfather invited her to D.’s cabin at Town C, near Town A. X warned her because he had previously tried to go under her pants. Y went anyway. 2) She was alone with her grandfather and her dog. After watching a movie, she went to bed. 3) She woke up in the middle of the night and felt warm down her.

She realized that her grandfather was touching her private parts, between her two legs, over the clothing. He was going lower and lower. She kept trying to push his hand away. His finger « was kind of twitching ». Then, she turned over on her belly so he would move his hand away. He kept trying. So, she put the dog between them. After a while, he just stopped trying. She was scared. 4) The next morning, she came back home with her grandfather and talked to Y. [ 25 ] Mr. N., while admitting that he had sometimes slept alone with his granddaughters, denied any sexual contact.

Moreover, he contradicted the complainants’ evidence in certain aspects. For example : he never went to Chicoutimi with X; she asked to sleep with him; he did not go to Town C with Y. [ 26 ] On January 6, 2014, Y made her videotaped statement to the police. [ 27 ] On February 6, 2014, Sgt. Boily and his colleague investigator Dereck St-Cyr went to Mr. N.’s house in Town B. Since he was absent, the policemen left a note asking him to call them back. [ 28 ] During a phone conversation, Sgt. Boily asked Mr. N. to come to the police station to be arrested for sexual assault. Mr. N. came voluntarily on February 13.

The interview was conducted between 3.22 to 5.40 p.m. According to Sgt. Boily : 1) Mr. N. was placed under arrest and his rights were read. 2) He did not make a written declaration but gave verbal statements. 3) Mr. St-Cyr told him that he was accused of sexual assault on X and Y. Mr. St-Cyr also mentioned that he was being investigated for the same crime against other granddaughters and named successively each of them. Mr.

N. only reacted when he heard the name of Y, specifying « I did not touch her ». 4) Asked if he had touched his granddaughters, he answered : « Only God will judge me ». 5) He offered different versions about being alone with his granddaughters. 6) Asked if he remembered having touched the genital parts of his two granddaughters, he mentioned that he did not remember. He did not deny or approve. [ 29 ] During his testimony, Mr. N. contradicted Mr. St-Cyr and added some important qualifications. Above all, he said that he was deprived of his right to consult a lawyer.

Also, the police tried to put words in his mouth. [ 30 ] After the interview with the police, Mr. N. was released from custody with conditions, including that he abstain from communicating with the complainants. [ 31 ] The judicial information was laid on April 28, 2014. Later, Mr. N. waived his right to a preliminary inquiry and elected trial by judge alone. The audition of the witnesses took place in Chibougamau on August 27 and 28, 2015. Closing arguments were held on December 4, 2015 by videoconference from Chibougamau to Roberval. ANALYSIS [ 32 ] As stated by Downs J. in R. v.

Sinare [5] , when the Court is faced with irreconcilable versions of the same event, it is incumbent upon it to analyse the elements of proof by applying the Supreme Court’s three-part test as described in R. v. W.(D.) [6] : 1) If the Court believes the accused’s version of events, it must acquit. 2) If the Court does not believe the version of the accused, it must then ask itself whether the case submitted by the defence in its entirety raises a reasonable doubt.

An affirmative response to this question results in the accused’s acquittal. 3) If the defence is unable to raise a reasonable doubt, the Court must ask itself if the whole of the evidence produced convinces beyond a reasonable doubt that the accused is guilty of the infraction. [ 33 ] The Court must keep in mind that a criminal trial is not a credibility contest [7] .

Moreover, it must consider the distinction between credibility and reliability of evidence : Reliability refers to the accuracy of the evidence : does the witness recall the events, what is his ability to observe the events, what is his ability to communicate what he observed? Credibility, on the other hand, refers to the veracity of events recounted by a witness, as well as the witness’ frankness and honesty [8] .

[ 34 ] Furthermore, to find Mr. N. guilty of sexual interference contrary to s. 151 (

a) Cr.C ., the Crown must prove each of these essential elements beyond a reasonable doubt : 1) The complainants were under the age of sixteen. 2) Mr. N. touched them. 3) The touching was for a sexual purpose. [ 35 ] With respect to the charge of sexual assault under s. 271 Cr.C ., the components are described by the Supreme Court in R. v. Ewanchuk [9] : [23] A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed the actus reus and that he had the necessary mens rea . The actus reus of assault is unwanted sexual touching.

The mens rea is the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched. [ 36 ] As stated by Bélisle J., referring to the jurisprudence, the offence of sexual assault requires only a general intent. Sexual interference requires specific intent. [10] [ 37 ] In this light, the Court now turns to consider the three-part test. Does the Court believe Mr. N. when he denies any sexual touching? [ 38 ] In the analysis of the testimony, the Crown invites the Court to consider the verbal statements given to the police by Mr.

N.. [ 39 ] Are the statements admissible evidence? According to the rule, if the Crown seeks to use prior statements made by an accused person, it will not be admissible without establishing its voluntariness during a voir dire [11] . However, the defence Counsel may waive the holding of that procedure. [ 40 ] What happens when the accused later testifies that he has not been properly accorded his right to an attorney? According to the Supreme Court, the trial judge has many alternatives, including to continue with the trial [12] .

In the present case, that solution was applied, considering : 1) The prior admissions of the defence Counsel about the voluntariness of the statements and the respect of his Charter rights. 2) Counsel did not cross-examine Sgt. Boily on the subject. 3) He did not request a voir dire . [ 41 ] For these reasons, the verbal statements are admissible, subject to the assessment of their probative value. [ 42 ] That said, does the Court believe Mr. N.? In order to answer the question, the following elements are taken into account : 1) Concerning the verbal statements to the police on February 13, 2014 :

a) Those concerning Y and « only God » are too equivocal to permit an inference.

b) Those about being alone or not with the complainants are pertinent : I. At the beginning of the interrogation, he mentioned that he had been often alone with them. Moreover, he slept in the same bed with different blankets. II. Towards the middle of the interrogation, he mentioned that he had never been alone with his granddaughters. III. At the end, he mentioned that he remembered going alone only once with Y to a cottage. Mr.

N.’s evolving statements to the police undermines his credibility. 2) When agent Saint-Cyr asked him if he remembered having touched the genital parts of his granddaughters, he answered that he did not remember. During his testimony, Mr. N. said that the policeman lied and that the relationship between the Native people and the SQ is very bad [13] . Yet, he came voluntarily to the police station for questioning and he collaborated. 3) At the beginning of his testimony, he spoke up confidently. As the cross-examination progressed, he became defensive. 4) The following exchange occurred between Mr.

N. and his Counsel, about touching the complainants [14] : Q. X pretends in her testimony that you would have touched a part of her body. What do you have to say? […] A. When I sleep with them sometimes, you know they sleep all over the bed. And sometimes I have to push them off me. One, his leg is on me and I had to push them.

And I don’t know where I touch them , because I’m sleepy and I just push them, that’s all. [15] A few moments later, during the cross-examination, he is confronted with that statement and contradicts himself on an important point : « I don’t think I used the word ‘touched’. ‘Touched her’ » [16] .

Moreover, he admitted that « sometimes they have very bad, […], with ache in their feet and the soles of their feet, so I rub alcohol on them […] » [17] . Overall, his testimony was confusing about the touching : it did not happen, I do not recall, maybe but it was an accident. The Court noticed Mr. N.’s palpable unease. [ 43 ] For all those reasons combined, the Court does not believe Mr. N.’s denial. Does Mr. N.’s Evidence Raise a Reasonable Doubt? [ 44 ] He denied the allegations that were made against him. There was no more in his defence at the material time and the Court does not believe the accused.

His evidence does not raise a reasonable doubt. Does the Evidence Taken as a Whole Raise a Reasonable Doubt? [ 45 ] The Court will address successively each of the complainants’ situation. X [ 46 ] There were some inconsistencies between X and Mr. N.’s testimonies. For example : Did X asked to accompany her grandfather? Did they travel to Chicoutimi before going to Chibougamau? Which one asked to sleep together? These inconsistencies are minor and on peripheral matter. They do not raise a reasonable doubt nor have any impact on the credibility of the complainant and the reliability of her evidence. Anyway, Mr.

N. admitted that he had slept with X while they were alone. [ 47 ] All of the following circumstances are met : 1) X was under sixteen. 2) She was alone with her grandfather, at his home. 3) They slept together. 4) Mr. N. admitted the possibility of touching X. 5) X clearly said that she was touched on her private parts. 6) At that moment, she was in shock and scared. 7) That unease was later confirmed when Mr. N. invited Y. [ 48 ] X’s testimony was forthright and consistent. She did not add more than necessary and remained fair. She was unshaken in cross- examination. [ 49 ] Mr. N. did not say that X lied.

He suggested that her words came from Mr. D., with whom he has a bad relationship. That affirmation is purely speculative and not supported by the evidentiary record. [ 50 ] The Court is convinced that the version of events narrated by X is truthful. [ 51 ] For these reasons, Mr. N. is found guilty on both counts of sexual interference and sexual assault. [ 52 ] Based on the Kienapple principle [18] , the conviction for sexual assault will be conditionally stayed. Sexual interference is more serious and « best captures the delict in this case » [19] . Y [ 53 ] Y’s testimony was painful.

She cried and was hesitant. Sometimes, she stopped talking. [ 54 ] She could not remember many details. How did she go to Town C? When did she watch the movie? Did she talk to her grandfather before going to bed? At what time did she go to bed? How did she go to the police station to make the video? What was the age of her little brother? Were her parents present when she was invited to the cabin? When did the alleged events occur? What was the configuration of the cabin? [ 55 ] The Court also considers Mr. N.’s spontaneous denial when he met the police. [ 56 ] Finally, there is a troubling situation [20] .

After the introduction of the video, the Crown asked Y : « Is there anything in that video that you think is inaccurate or that you think that is, you want to clarify or explain more? » She answered yes. After a long hesitation and a deep breath, she stopped talking. The following exchange occurred : Q. And what is it that you’d like to add? Can you just explain to Monsieur le juge? A. I don’t remember.

[ 57 ] Here, similar fact evidence cannot enhance Y’s testimony. The Court is convinced of her honesty. However, there is a problem with the reliability (her inability to communicate what she observed). [ 58 ] All those factors combined create a reasonable doubt. [ 59 ] The Court knows that it must approach children’s evidence with flexibility and common sense [21] . However, this does not lower the standard of proof [22] . [ 60 ] It is possible that Mr. N. touched Y sexually. However, the burden of proof in a criminal trial is not based on possibilities. [ 61 ] As a result, Mr. N. is acquitted concerning Y.

CONCLUSION [ 62 ] FOR THESE REASONS : [ 63 ] Concerning X : The Court finds Mr. N. guilty of Count 1 (sexual interference). Count 2 (sexual assault) is conditionally stayed. [ 64 ] Concerning Y : The Court finds Mr. N. not guilty of Counts 3 and 4. __________________________________ PIERRE LORTIE Judge of the Québec Court Mtre Simon Murray for the Crown Mtre Jean Girard for the accused Dates of hearing : August 27 and 28, December 4, 2015 APPENDIX 1 1.

Between August 1, 2011 and August 31, 2012, in Chibougamau and in Mistissini, district of Abitibi and other places, for a sexual purpose, did touch a part of the body of X Fayard (1997-[…]), a person under the age of sixteen (16) years, committing thereby the indictable offence provided by

section 151a) of the Criminal Code . 2. Between August 1, 2011 and August 31, 2012, in Chibougamau and in Mistissini, district of Abitibi and other places, did commit a sexual assault on X Fayard (1997-[…]), committing thereby the indictable offence provided by

section 271a) of the Criminal Code . 3. Between October 1, 2011 and April 30, 2012, in Chibougamau and in Mistissini, district of Abitibi and other places, for a sexual purpose, did touch a part of the body of Y (1999- […]), a person under the age of sixteen (16) years, committing thereby the indictable offence provided by

section 151a) of the Criminal Code . 4. Between October 1, 2011 and April 30, 2012, in Chibougamau, district of Abitibi and other places, did commit a sexual assault on Y (1999- […]), committing thereby the indictable offence provided by

section 271a) of the Criminal Code .