R. v. W, 2019 QCCQ 4221

R. c. A.E. 2019 QCCQ 4221 COUR DU QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF LONGUEUIL TOWN OF LONGUEUIL « Criminal and Penal Division » N° : 505-01-146910-175

(001) DATE : April 10, 2019 ______________________________________________________________________ BY THE HONOURABLE VALMONT BEAULIEU, J.C.Q. ______________________________________________________________________ THE QUEEN Plaintiff c. A. E. Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The accused pleaded not guilty to the following charges : 1. Entre le 1 janvier 2010 et le 31 décembre 2010, à Ville A, district de Longueuil, a agressé sexuellement X, commettant ainsi l’acte criminel prévu à l’ article 271

(1) a) du Code criminel . 2. Entre le 1 janvier 2010 et le 31 décembre 2010, à Ville A, district de Longueuil, a, à des fins d’ordre sexuel, touché une

partie du corps de X, enfant âgée de moins de seize (16) ans, commettant ainsi l’acte criminel prévu à l’

article 151

a) du Code criminel . [ 2 ] The complainant, who was 19 at the time of her testimony, explained that when she was 11 years of age (in 2010) she often visited her older half-sister, A. K., who lived with the accused as a couple. At the time they had one child, a 2 year old daughter named Y. During the year 2010, she frequently visited the couple at their apartment in Town A. [ 3 ] Between the months of June and the end of October 2010, she alleges that the accused touched her sexually on three different occasions.

All three incidents occurred at her half-sister’s and the accused’s apartment in Town A where they lived with their two year old daughter. [ 4 ] The burden of proving the accused’s guilt rests on the Crown at all times. The Crown must prove beyond a reasonable doubt the guilt of the accused. [ 5 ] A reasonable doubt is a doubt that must be based on reason and common sense, which must be logically based upon the evidence or lack of evidence. A reasonable doubt cannot be based on sympathy or prejudice.

Furthermore, a reasonable doubt must not be imaginary or frivolous. [ 6 ] After considering the totality of the evidence, if the Court believes he is probably guilty, then clearly the accused must be acquitted in such circumstances [1] . [ 7 ] In the present case if the Court is convinced beyond a reasonable doubt that sexual touching incidents described by the complainant did occur and that they were committed by the accused, then he must be found guilty. [ 8 ] In the course of this trial, the accused testified before the Court.

In light of the circumstances the Court applied the 3 step approach to considering credibility of witnesses suggested by the Supreme Court of Canada in R. v.

W(D) [2] . [ 9 ] First, if the Court believes the evidence of the accused, obviously he must be acquitted. [ 10 ] Second, if the Court does not believe the testimony of the accused but is left in reasonable doubt by it, the accused must be acquitted. [ 11 ] Third, even if the Court is not left in doubt by the evidence of the accused, the Court must ask whether, on the basis of the evidence which the Court does accept, it is convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 12 ] As in many cases, the Court analyzed the credibility and reliability of various witnesses.

[ 13 ] The Honourable Judge Estey in R. v. White [3] at page 268 states: The issue of credibility is one of fact and cannot be determined by following a of rules that it is suggested have the force of law… . Eminent judges have from time to time indicated certain guides that have been of the greatest assistance, but so far as I have been able to find there has never been an effort made to indicate all the possible factors that might enter into the determination. It is a matter in which so many human characteristics, both the strong and the weak, must be taken into consideration.

The general integrity and intelligence of the witness, his powers to observe, his capacity to remember and his accuracy in statement are important. It is also important to determine whether he is honestly endeavouring to tell the truth, whether he is sincere and frank or whether he is biased, reticent and evasive. All these questions and others may be answered from the observation of the witness’ general conduct and demeanour in determining the question of credibility. [ 14 ] This statement has resisted the test of time and is still applicable today. [ 15 ] In R. v.

Cedras , the late Honourable Judge Michel Proulx of the Québec Court of Appeal states [4] : Aucun texte de loi n’établit pour les juges de faits les critères qui servent à évaluer la crédibilité d’un témoin. Chacun, grâce à son expérience, son bagage de connaissances et son sixième sens note à travers ce prisme qui est le sien les indices déterminants de la fiabilité ou du discrédit propre à chaque témoin . [ 16 ] In addition, in R. v.

Biniaris [5] , the Supreme Court of Canada stated that trial judges are vested with much latitude as it relates to the appreciation of evidence. [ 17 ] In the course of proceedings, a witness’ testimony may be distinguished from or contradict statement(

s) said at another moment such as in a previous out-of-court statement.

The statements made must be analyzed in the context of the moment and location where they were said, because a person, for example, who enters a police station for the first time may well be more nervous that a person or a criminalized individual who is more accustomed to being in such places. [ 18 ] These comments from the Court sums up the statement from the Québec Court of Appeal in Cedras , which implies that this Court must navigate in the context of two distinct realities [6] . [ 19 ] Reliability and credibility are not synonymous as the Honourable Judge Dutil of the Québec Court of Appeal stated in J.R. v.

La Reine [7] . [ 20 ] The Court also reminds itself of the comments from the Honourable Justice Major in R. v. Avelyson [8] : Dans les causes où la question de la crédibilité revêt de l’importance, il importe de déterminer que le tribunal n’a pas choisi entre 2 versions et que le manque de crédibilité de l’accusé n’équivaut pas à une preuve de sa culpabilité hors de tout doute raisonnable. [ 21 ] In the present case, the complainant testified regarding events that occurred long ago when she was a child.

On such issues, the Québec Court of Appeal reminds us regarding the rule established by the Supreme Court of Canada in R. v. Sutton [9] : The appellant notes that, to ensure the protection of the freedom of all accused, the evidence required to convict must be solid, whether it rests on the testimony of a child or an adult. With this in mind, in R. v. W. (R.)[3], the Supreme Court developed the standard applicable when adults testify about facts that occurred in their childhood.

The appellant summarizes this standard as follows: [translation] That decision established that when an adult testifies about events that took place during his or her childhood, the witness’s credibility should be assessed according to the criteria applicable to adult witnesses. However, where there are inconsistencies regarding peripheral matters, the age of the witness at the time of the events in question should be considered. [ 22 ] With these legal premises set out, the Court considered and analyzed the credibility of witnesses in accordance with the approach referred to earlier in R. v.

W.(D.) [10] . [ 23 ] After considering the testimony of the accused the Court does not believe him. His general denial considered in the context of his explanations regarding his alcohol consumption problems at that time and his history of concussions has no air of reality, is illogical and unreliable. [ 24 ] With regards to the various incidents described by the complainant, the accused denies the allegations but does so in an unusual manner, stating also that he does not remember.

However he apparently has no difficulty remembering various other details of that time period such as the general frequency of the complainant’s visits to his residence. [ 25 ] The accused’s videotaped statement to police was admitted as having been given freely and voluntarily. However it was not filed in evidence and its use was limited to cross-examination by Crown counsel for the purpose of testing his credibility.

When confronted with portions of his statement, the Court noted that during his videotaped statement to police, the accused stated that he did not know if what the complainant alleges actually happened. He added he did not remember if it happened and reiterated that he was drinking back in 2010 and that when he is really drunk he loses his memory. [ 26 ] When confronted to his responses to police as to whether it was possible that he may have confused the complainant for his wife because of his alcohol consumption back then, his response to police was that he could not remember.

At trial, confronted to this issue, the accused stated it was not possible. [ 27 ] In spite of responses to police that suggest he clearly had memory problems regarding events going back in 2010, in court he testified categorically that he recalls that his wife was present at the home on every single occasion back in 2010 when the complainant

was there. The Court finds this response lacking any air of reality considering the totality of his evidence, the time that has elapsed and considering his apparent significant problem with alcohol during that era. [ 28 ] In considering the accused’s testimony, the Court did consider the fact the accused evidence was subjected to

interpretation by a sign language interpreter as was the case during his videotaped statement to police. [ 29 ] For the reasons mentioned, the Court finds the accused’s testimony unbelievable and unreliable. However, the Court does consider that the evidence did show that an L-shaped sofa, that was referred to during one of the incidents was purchased in 2011. [ 30 ] Regarding the second stage of the credibility analysis, for the same reasons, the Court rejects the accused’s evidence without hesitation.

In its analysis during both stages, the Court considered the totality of the evidence, including the testimony of the accused spouse, Ms. A. K.. [ 31 ] Regarding Ms. K.’s evidence, from the beginning of her testimony, the Court had to intervene and remind her that it is not her role to decide whether her half-sister was lying. Her bias in favour of the accused was evident. However, this was not in itself sufficient to lead the Court to reject her entire testimony.

In particular, the Court has no difficulty believing her regarding her claim that the L- shaped sofa was purchased in 2011. [ 32 ] Furthermore, the Court believes her when she states that she never observed any inappropriate sexual conduct whatsoever on the part of the accused towards the complainant. [ 33 ] The Court also believes Ms.

K. when she says that, to her, the complainant always seemed happy during each visit. [ 34 ] In spite of her favourable bias towards the accused, she also affirms with sincerity that she was at the time of her testimony separated from the accused but that they were working on possibly reconciling. [ 35 ] At the third and final stage of analysis, even if the Court is not left in doubt by the evidence of the accused, the Court must ask whether, on the basis of the evidence which the Court does accept, it is convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 36 ] The Court considered the evidence of the mother as well.

The Court believes her when she states that her daughter, the complainant, would regularly attend her other daughter’s residence back in 2010 about every two weekends. [ 37 ] As for the complainant she provided a credible version regarding 3 incidents where she alleges the accused touched her in a sexual manner. [ 38 ] The first incident occurred in the summer 2010, between June and August. She says she was laying down on the bed in the master bedroom watching a children’s movie with her 2 year old niece. The accused entered the room and lay down on the bed beside her.

After maybe 10 or 15 minutes, he began touching her, bringing his hand up the shorts she was wearing. He went under her underwear and then touched her clitoris by moving his finger, that she thinks was his index, back and forth for about 20 or 30 seconds. [ 39 ] She believes her half-sister was in the apartment at the time but she was not in the room. She was wearing shorts and one of her dad’s t-shirts when the accused touched her.

She stopped him by pushing him away with her foot. [ 40 ] She did not tell anyone at the time because she felt ashamed, that it was her fault and was concerned that no one would believe her. [ 41 ] Regarding the second incident, she believes it may have happened around Halloween 2010. She recalls her sister showing her niece’s costume. She said in examination in chief it may have been around October or August. The thinks it happened once again in the master bedroom of her sister’s apartment, according to a similar pattern of conduct. She was again watching a movie with her niece.

He did the same thing but thinks the sexual touching lasted longer than the first time. Again, it stopped when she kicked him. He stopped upon the first nudge on his arm. Her niece was again on the bed also and might have been playing with a toy. [ 42 ] She thinks her half-sister was out of the house on that occasion because she remembers her saying bye and she would be back soon. The touching lasted not more than one minute. [ 43 ] The third incident happened in the living room. Her sister was not in the living room when it happened.

She says she was half laying down half sitting on the couch, which was an L shaped couch. She was on the long end of the couch (that is, the end which is not the L shape). She says the accused walked in from the kitchen and sat on the couch at her feet. This time she says the touching lasted longer and she had to kick him twice for him to stop. She kicked him once in the arm and once in the chest. His reaction was that he seemed taken aback or shocked. He walked out.

She thinks she may have been wearing shorts and t-shirt again as that was generally what she wore as pyjamas. [ 44 ] She thinks the third time happened late afternoon, whereas the first time it was before lunch and second time it happened mid- afternoon. [ 45 ] She did not tell anyone after each of these incidents for the same reason mentioned earlier. [ 46 ] The first person she told several years later was her boyfriend, when she had turned 18 in 2017. He suggested she should tell someone about this. Then she either told her mom or therapist, but is not sure who she told first.

Then she went to the police in Pierrefonds and they transferred the file to police in Longueil where she met Chantal (who is the investigator). [ 47 ] What inspired her to say something about these incidents was a documentary about a girl who had been sexually assaulted that she watched near the time of her disclosure. It brought back memories and she decided she had to get it out of her system.

[ 48 ] In cross-examination, the complainant essentially maintained her version of events as it relates to the manner that the sexual touchings were committed by the accused. She did clarify that at 11 she did not know what a clitoris was but came to understand that part of the anatomy between high school and her nursing studies. Once she knew what a clitoris was she remembered that that is where he was touching her back in 2010. [ 49 ] However, some contradictions were brought to light on various issues.

The following are various areas where contradictions are apparent between her testimony at trial and during past versions either at the preliminary hearing, just a few months ago in March 2018, or during her videotaped statement to police in 2017: • During her March testimony at the preliminary hearing she said she had no idea what a clitoris was before August 2017. • When she made her statement to police she said the first incident occurred in June or July 2010 and it might have happened on a weekday or weekend day. At the preliminary hearing in March 2018 she said it happened during the week.

At trial she stated she does not remember what she said in March at the preliminary hearing because she was nervous and does not recall everything she said in the past. • During the March 2018 preliminary hearing she said it happened at the beginning of July. At trial again said she did not remember what she said in March.

Once confronted to what she said in March she then acknowledged at trial that it became clear to her it happened in July 2010, although at first she said she did not remember what she said in March during the preliminary hearing. • While at trial she said that once the accused came in the room during the first incident it happened about 10, 15 or maybe 5 minutes later, during the preliminary hearing in March she said it happened maybe 5 minutes after he came in the room. • At trial she said that during the first incident she did not think he touched her leg, whereas during the preliminary hearing in March she said that he did touch her leg and would have said the same in her videotaped statement to police.

Confronted by these differences, the complainant at trial said she does not remember if he was touching her leg during the first incident. • At trial she said in examination in chief that the first incident happened before lunch whereas in cross examination she was confronted with her statement at the preliminary hearing in March where she stated did not remember if it was before lunch. Confronted by this she ends up saying she was not sure if it was before lunch. • In cross-examination at trial she stated at first the bed size was either king or queen size.

During the preliminary hearing in March she said the bed was a queen. • Regarding the second incident, at trial she said in cross-examination she was not sure how many minutes after he came in the room that he started touching her. She was confronted with her testimony at the preliminary hearing where she said he waited 4 or 5 minutes before he started to touch her. This contrasted with what she said in her videotaped statement to police in which she said that he started to touch her right away when he got in the room.

Confronted by these differences she said she did not remember what she said about this in her videotaped statement. At trial she maintained she did not know if he touched her right away. • At trial, during examination in chief she said the second incident could have happened in October, around Halloween or in August. In March 2018, at the preliminary hearing, she said it happened in August or September and that the 3 rd incident happened around Halloween. • At trial she stated she did not know what time the second touching incident happened.

During the preliminary hearing she said it happened around 1 or 2 o’clock in the afternoon. Confronted by these contradictions the complainant stated she simply did not really know what time it was. • She was confronted with her evidence in March 2018 at the preliminary hearing where she stated she kicked him twice to get him to stop. At trial said she could not remember how many times she kicked him. • At trial she said she was not sure if she was wearing shorts and a t-shirt during the second incident or a night gown whereas in her videotaped statement she said she was wearing a nightgown.

Confronted with this nuance she affirmed at trial she did not remember if it was shorts or a night gown that she was wearing. • In examination in chief she stated the second touching did not last longer than a minute. In cross-examination she stated it lasted 1 or 2 minutes maximum. • Regarding the third incident, at trial the complainant said she did not remember when it happened. However she was confronted with her evidence at the preliminary hearing in March where she said it happened near Halloween.

Confronted by this she ends up saying at trial that perhaps he touched her twice in October. • Regarding the third incident on the L-couch, she started by saying she is pretty sure it was an L-couch and that she was laying in the part not in the L- area of the couch. However, she was confronted by her version at the preliminary hearing in March 2018 where she said she was in fact laying on L- part of the couch.

Confronted by this, she ends up saying at trial she is just not sure what part she was laying in. [ 50 ] Various other, more minor discrepancies were highlighted during cross-examination between the complainant’s evidence at trial and versions of her evidence either at the preliminary hearing in March 2018 or in her videotaped statement to police.

She also acknowledged that she does not remember certain things she said either at the preliminary hearing or in the video to police. [ 51 ] While these contradictions were highlighted, however the complainant did stand firm that while her memory is not perfectly clear on various details she does know that it happened.

[ 52 ] She also said she used to have a good relationship with her sister but has no contact whatsoever since her disclosure about these incidents, especially after her testimony at the preliminary hearing because her sister does not believe her. [ 53 ] She also stated that after the third incident the accused did not touch her again that way even though she continued to go to her sister’s. She said that while she may have been a little scared she was not terrified and that she is not scared anymore because she is older and can protect herself.

She acknowledged in a straightforward manner that no one forced her to go there to sleep over or to spend time there. She wanted to because she loved her half-sister and her niece and wanted to see them. [ 54 ] She reiterated that the first person she spoke to about these events was her boyfriend followed by her mother or therapist. She acknowledged she had been seeing a therapist since 2014, following the death of her father. She was being treated for depression, anxiety and anger but not for any kind of lying habit.

She affirmed she does not have any kind of lying habit. [ 55 ] Considering the complainant’s age at the time of these alleged incidents, her evidence must be analyzed keeping in mind the guidelines provided by the Supreme Court of Canada in R. v. W.R. [11] and in the context of the totality of the evidence. [ 56 ] Suggestions in the evidence, that flows in particular from the testimony of her half-sister Ms. K., to the effect that the complainant seemed happy when she visited her half-sister’s home is clearly an insufficient basis to reject her evidence.

The Court considered her testimony in the context of the totality of the evidence and paid particular attention to elements flowing from her cross- examination where she was extensively confronted to previous versions she provided to police and at the preliminary hearing. [ 57 ] Overall the Court observed that during both the examination in chief and cross-examination, the complainant described in as much detail as she recalled 3 sexual touching incidents and she was constant and firm at all times that these incidents did occur and they occurred in 2010. [ 58 ] The Court considered the complainant’s evidence, including the various contradictions or gaps in her recollection that defence counsel was able to raise in cross-examination during her testimony at trial versus her testimony during the preliminary hearing and her earlier statement to police, as the Court has already laid out in significant detail. [ 59 ] The statement to police was made in 2017 and her testimony at the preliminary hearing was in March 2018.

The Court considers that the various contradictions and differences that were highlighted between her testimony at trial and her other previous versions cannot be qualified as major contradictions, and in the Court’s appreciation they do not weaken her overall credibility and reliability. [ 60 ] The Court deems that these differences and gaps in her recollections can be explained by the fact that the complainant was a child and close to 8 years have gone by since these 3 incidents have occurred. [ 61 ] By stating at various moments at trial that she was unable to recall some of the things she said previously, demonstrates in the Court’s view that the complainant testified with a certain spontaneity and sincerity as opposed to providing a scripted and totally memorized version. [ 62 ] In addition, addressing the issue of the L-shaped sofa that was referred to by the complainant, while it seems clear this sofa was purchased in 2011, this factor does not in itself impact her credibility to the point of raising a reasonable doubt. [ 63 ] The complainant testified that the incidents occurred on a sofa in the living room, and in the master bedroom where there was a television. [ 64 ] It is open to the Court to easily infer that there was sofa in the living room at the time of the incident she described.

The inference the Court makes in this regard in not contradicted by the evidence. [ 65 ] Considering the complainant’s age and the passage of time, her inability to remember clearly a detail that relates to the shape of the sofa is not significant considering the Court’s appreciation of her credibility as a whole. [ 66 ] On the contrary, the Court would be concerned if there were no contradictions considering the circumstances. [ 67 ] Following the Court’s analysis of the various contradictions, the Court did ponder their impact on the weight the court should give to the complainant’s testimony. [ 68 ] Before the complainant went to the police station to disclose the crimes for which she claimed to be a victim, she explained what event triggered or inspired her make a complaint.

It followed her seeing a documentary, which was followed by her revealing what happened to her to her friend, to her mother and to her therapist. [ 69 ] Although she will no longer be able to visit her half-sister or niece that she loves dearly, she nevertheless has maintained her version and her commitment to denouncing the accused’s conduct, in spite of the important loss of her half-sister’s love and prospect of maintaining a relationship with her niece. [ 70 ] The Court observed that the complainant’s sincerity was palpable and that she was not prone to exaggerating the duration, the number or invasive nature of the sexual conduct of the accused towards her. [ 71 ] After analyzing the totality of the evidence, the Court is convinced beyond a reasonable doubt that the accused is guilty as charged. [ 72 ] FOR THOSE REASONS, THE COURT: [ 73 ] FINDS the accused guilty on both counts;

[ 74 ] IN ORDER TO AVOID MULTIPLE CONVICTIONS , the Court will enter a conditional stay of proceeding on count related to section 271(1) (

a) of the Criminal Code . __________________________________ VALMONT BEAULIEU, J.C.Q. Mtre Isabelle Charles Office of the DPCP Director of Criminal and Penal Prosecutions Mtre Ilana Suissa Counsel for the accused Date of hearing : September 27, 2018