2012 QCCA 1005, 2012 QCCA 1005

R. c. G.Y. 2012 QCCA 1005 COUR D’APPEL CANADA PROVINCE DE QUÉBEC GREFFE DE MONTRÉAL N° : 500-10-004681-100 (765-01-018401-089) (765-01-018767-083) DATE : le 1 er juin 2012 CORAM : LES HONORABLES MARC BEAUREGARD, J.C.A. ALLAN R. HILTON, J.C.A. GUY GAGNON, J.C.A. SA MAJESTÉ LA REINE APPELANTE – Poursuivante c. G... Y... INTIMÉ – Accusé ARRÊT [ 1 ] L'appelante se pourvoit contre un jugement rendu le 3 mai 2010 par l'honorable Ronald Dudemaine (Cour du Québec, district de Richelieu, chambre criminelle), qui a acquitté l'intimé d'une accusation d'agression sexuelle, ( article 271(1)

a) C.cr .), deux accusations d'exploitation sexuelle (articles 153(1) a )

(1.1) a) et 153(1) b ) (1.1) a )), et d'une accusation d'inceste ( article 155(2) C.cr. ); [ 2 ] Pour les motifs du juge Hilton, auxquels souscrivent les juges Beauregard et Gagnon; LA COUR : [ 3 ] ACCUEILLE l'appel; [ 4 ] CASSE le verdict d'acquittement prononcé par la Cour du Québec; [ 5 ] ORDONNE la tenue d'un nouveau procès. MARC BEAUREGARD, J.C.A. ALLAN R. HILTON, J.C.A. GUY GAGNON, J.C.A. Me Sylvie Villeneuve AVOCATE AUX POURSUITES CRIMINELLES ET PÉNALES Pour l'appelante Me Annie Francoeur Me Henri-Pierre La Brie Pour l'intimé Date d’audience : le 18 avril 2012

REASONS OF HILTON, J.A. [ 6 ] This appeal considers whether a trial judge imposed an improper standard of proof on the Crown when he dismissed its application on a voir dire to introduce a signed statement of the 16 year-old complainant. In that statement, she accused her father of having engaged in sexual conduct with her. The voir dire became necessary because not long after having filed the complaint, she advised Crown counsel that its content was false. [ 7 ] On July 16, 2008, the complainant presented at the police station in Ste-Julie, accompanied by her mother and her older sister.

After explaining the reason for their presence to a desk officer, the complainant was taken to an interview room for what turned out to be a preliminary investigation by Officer Martin Thibodeau. After listening to her account of events, Officer Thibodeau asked his colleague, Det. Sgt. Gilles Villemaire, to join him. [ 8 ] The complainant was then interviewed by both police officers for a total of 70 minutes. [ 9 ] Det. Sgt. Villemaire prepared a two-page statement relating the facts the complainant disclosed.

She then signed it, immediately above a pre-printed declaration acknowledging that it was made knowing it to be true, and that it had the same force of law as if it had been signed under oath. [ 10 ] The statement related that the father's sexual abuse began approximately one year earlier, with sexual touching over the complainant's clothes, which eventually escalated to direct contact underneath her clothing. There were also episodes of her masturbating him and performing fellatio until ejaculation.

She stated that she felt she had no choice but to comply with his requests, because she knew him to be violent. [ 11 ] According to the statement, her father's sexual advances ultimately led to incidents of complete intercourse, the last of which had occurred the previous Saturday (July 12). The statement then contains a series of questions and answers, which can be summarized as follows: • At supper one evening, her father told her he wanted to have intercourse with her. After her brother had gone to sleep, he approached her, touched her and eventually they ended up in bed.

This initiative began in the living room, but concluded in his bedroom. • The sexual activity that occurred consisted of him asking her to swallow his ejaculate from fellatio, assuming different positions during intercourse, and making noises as if she was experiencing an orgasm; • She had never had any prior sexual relations before those with her father; • Whenever she told him she did not want to be engaging in this activity with him, he threatened to take away her cat and make her lose her job; • About one month prior to making the statement, she told her older sister about what she was experiencing with her father, and that she did not know how to deal with it; • On average, she had intercourse with her father about once a week, but since she had recently been on vacation, it had become a daily occurrence; • She had begun taking birth control pills in April that year; • After intercourse the previous Saturday, she had dressed for bed wearing shorts and a camisole, which had not been washed since then; • The bed sheet on which intercourse with her father had last occurred was white with a flower or leaf-like pattern. [ 12 ] With this information in hand, the police arrested the respondent later that day.

A search warrant was also executed at his residence, pursuant to which the complainant's bed ware and the respondent's bed sheet were seized. He was charged the following day with the indictable offences of sexual assault and two counts of sexual touching. Later in September, he was also charged with incest. [ 13 ] Not long after the first set of charges were laid but before the last one was added, the complainant met with Crown counsel and advised that her complaint had been fabricated.

There were also proceedings undertaken in the Youth Court that led to the respondent losing custody of his son. [1] [ 14 ] The matter came on for trial in April of 2010. The Crown called the complainant, Officer Thibodeau, Officer Éric Bouchard, who executed the search warrant at the respondent's residence, and Vahé Sarafian, an expert witness who performed various analyses with a view to identifying the genetic profile of various substances involving the complainant and her father. [ 15 ] I have already alluded to the testimony of Officer Thibodeau in paragraphs [7] to [11] inclusively. To that

summary, I would add that he described the complainant's demeanour when she was interviewed as being that of someone who, while not tearful, presented as someone in need of assistance. She spoke without anguish, was precise, concise and used appropriate language to describe the events she related. [ 16 ] Officer Bouchard's testimony essentially described the photographs he took of the interior of the residence, as well as explaining the circumstances under which he seized the various items mentioned in paragraph [12] above.

[ 17 ] The most important testimony was that of the complainant and the Crown's expert Vahé Sarafian. [ 18 ] The complainant told the judge at the outset that she had not wanted to testify, and that the only reason she had appeared in court was to avoid being arrested for non-compliance with a subpoena.

During her testimony, she denied the content of the statement, but admitted that it contained what she told the police officers at the time. [ 19 ] She claimed that she had made the false allegations against her father because he had prevented her from dating a 26 year-old man with a criminal background with whom she was engaged in an amorous relationship. She had hoped that by accusing him of sexual misconduct with her, she would be able to live with her mother, who she considered less strict than her father. Further, she added that she and her mother had not discussed the possibility of her living there.

She specified that she only saw her mother occasionally, when the latter wanted to see her children. [ 20 ] She further testified that after making her complaint to the police in July of 2008, the Direction de la protection de la jeunesse began an investigation into her family. The result of the investigation was that the respondent’s custody over his children was revoked, including that of her 11-year-old brother.

She testified that she was particularly affected by this development, and felt responsible for it. [ 21 ] When questioned about a meeting with the Crown prosecutor in September of 2008, the complainant explained that the goal of the meeting was to inform the prosecutor of her intention to retract the complaint. [ 22 ] The complainant decided to make the complaint after her father surprised her in the street when she was in the company of the 26 year-old man she was dating, at which time he took her by the arm and forced her in his car. [ 23 ] She acknowledged that the police officers told her that the statement she was making was important, but she said she was not informed that there were any consequences to making a false complaint. [ 24 ] Subsequent to her father's arrest on the day she presented at the police station, the complainant had had no contact with her father, whether verbally or in writing.

She added that she had not been threatened or made any promises to retract her complaint by anyone, and that she had never been charged with a criminal offence.

She explained that the detail of the sexual activity mentioned in the statement described in reality the nature of the sexual relations in which she had been engaging with the 26 year-old man, and not her father. [ 25 ] In effect, she denied the truth of the entirety of the statement she signed that led to the respondent being charged, although she acknowledged that it accurately reflected what she had told the two police officers. [ 26 ] The Crown's expert, Mr.

Sarafian, testified with respect to the three reports he produced. [ 27 ] With respect to the medical-legal kit of the complainant, nothing incriminated the respondent. A vaginal sample from the complainant did show traces of male DNA, but they were too fragmentary to permit the tracing of a genetic profile. [ 28 ] Four spots of sperm were found and analyzed from the respondent's bed sheet.

One matched his genetic profile alone, two failed to provide conclusive results implicating him and the complainant, but the last revealed the genetic profile of the complainant combined with that of the respondent. [ 29 ] The complaint's camisole disclosed no pertinent information for analysis. Spots of sperm were found on the exterior front of her shorts. This spot was found to match the genetic profile of the complainant combined with that of the respondent.

In the crotch area of the interior of the shorts, there was an absence of sperm when the sperm detection was performed, but the genetic profile of the respondent was found in a sperm fraction along with the DNA of the complainant. [ 30 ] Mr. Sarafian also testified that the spots formed areola, which indicates that they were transferred to the shorts while in liquid form. [ 31 ] Essentially, the trial judge concluded that the complaint's statement was not sufficiently reliable.

He considered her testimony before him to have been credible and convincing, in particular since she provided a rational explanation as to why she had lied when she signed the statement. The trial judge also wondered whether the police officer who wrote it, Det. Sgt. Villemaire, had written other notes during the 70-minute interview. As far as the testimony of Mr. Sarafian was concerned, he found it, broadly speaking, to be insufficiently corroborative of the truth of the statement taken by Det. Sgt. Villemaire.

His analysis led him to conclude that while there were elements of his evidence that were very troubling, they were not as conclusive as the Crown contended. Their reliability was thus potentially questionable in light of the possible equivocal conclusions that could be drawn. [ 32 ] The trial judge accordingly declared the statement inadmissible.

Once Crown counsel declared she had no other evidence to offer, the trial judge pronounced the respondent's acquittal. [ 33 ] The essence of the Crown's argument in this Court is that at the stage of a voir dire , the trial judge improperly took on the role of a trier of fact on the merits. Thus, he wrongly proceeded as if he was deciding the ultimate outcome on the standard of proof of guilt beyond a reasonable doubt.

For example, some of the words he used in his analysis to characterize the DNA evidence, such as some aspects of it not being "concluante et absolue" as to the occurrence of sexual relations between the complainant and the respondent, are consonant with a more elevated standard.

Instead, the Crown says that he should have approached the question of admissibility on the less demanding standard of a balance of probabilities, which is all that is required at the stage of a voir dire . [2] [ 34 ] The respondent agrees with the Crown as far as the proper standard of proof is concerned, but says the trial judge applied it correctly and did not assume the role of the ultimate trier of fact by declaring the statement inadmissible. [ 35 ] There is no dispute that the Crown did satisfy the first requirement of necessity in light of the complainant's retraction.

What was important for this purpose was the incompatibility of her sworn statement with her testimony at trial. That being said, was the

statement sufficiently reliable to be admitted into evidence, keeping in mind the flexibility that must be shown in such circumstances? [3] [ 36 ] I am persuaded that the Crown's position is well founded. [ 37 ] Whatever doubts the trial judge may have had about the entirety of the DNA evidence, there was nevertheless an undisputed link in the respective genetic profiles of some of the complainant's specimens and those of her father that Mr. Sarafian identified. At a minimum, this finding alone is compatible with sexual activity between the complainant and her father.

That should have been enough to admit the statement, considering the circumstances in which it was taken, and the offences with which the respondent was charged. [ 38 ] After all, the complainant acknowledged that the statement accurately recorded what she said at the time, so any speculation the trial judge may have entertained about other notes that Det. Sgt. Villemaire may have taken is beside the point. She attended the police station with the sister to whom she disclosed her anxiety about the sexual activity with her father.

Moreover, according to Officer Thibodeau, her mother was present when the statement was given. [ 39 ] Quite simply, the trial judge attached too much weight to the testimony of the complainant and not enough weight to those elements of the DNA evidence that were compatible with the occurrence of the offences the respondent is alleged to have committed. [ 40 ] I realize that the Crown's case on the voir dire may well have been buttressed had it chosen to call the complainant's mother and sister, as well as Officer Thibodeau, and that it would have been preferable to have a video recording of the statement.

I also appreciate that if the trial judge had admitted the statement and no further evidence been called, a verdict of acquittal based on the Crown not having proved the respondent's guilt beyond a reasonable doubt might well have been properly entered in any event. [ 41 ] Nevertheless, it is not for the Court to second-guess why some witnesses were not called to testify, nor to conclude that a verdict of acquittal was inevitable even if the statement had been admitted because of the trial judge's finding that the complainant was a credible witness. [4] There is no curative provision in the Criminal Code that allows courts of appeal to dismiss a Crown appeal from an acquittal where a trial judge has erred in law that is the statutory equivalent of the powers specifically granted to courts of appeal in paragraph 686(1)(

b) Cr. C. in the case of an conviction. That omission is clear from the text of subsection 686(4) Cr. C . dealing with the powers of a court of appeal on a Crown appeal from an acquittal.

Moreover, courts of appeal do not enjoy any equivalent residual power to act as if there were a curative provision. [5] [ 42 ] In reaching this conclusion, I think it important to underline in what way the circumstances of this case may be seen to differ with others that might have led to a different result. [ 43 ] There is a difference between the hearsay statement of someone who is unavailable to testify and thus cannot be cross- examined, and the supposed hearsay of someone who is available to be cross-examined, which is the case here. [ 44 ] There is a difference between spoken hearsay and hearsay that is in writing, has been signed and sworn, which is the case here. [ 45 ] There is a difference between hearsay in which the witness contends never to have spoken the words sought to be introduced, or to have signed a statement that inaccurately records what the witness said, which is not the case here. [ 46 ] There is a difference between a hearsay statement made in casual or informal circumstances, and a signed statement made in the presence of the declarant's mother, after having confided the situation to a sibling who accompanied the declarant when the statement sought to be introduced was made, which is the case here. [ 47 ] There is a difference between uncorroborated hearsay and hearsay that is corroborated, at least in part, by credible expert evidence, which is the case here. [ 48 ] Finally, it is irrelevant that the interview lasted 70 minutes and the written statement is only two pages, when the declarant did not testify that she said anything in those 70 minutes that is incompatible with the content of the statement. [ 49 ] In conclusion, having found an error of law in that the trial judge performed a function more akin to that of a trier of fact on the merits when deciding a question of admissibility, our duty is to allow the appeal, set aside the verdict of acquittal, and order a new trial. [ 50 ] That is precisely what I propose.

ALLAN R. HILTON, J.A.