2021 QCCA 601, 2021 QCCA 601

Parlea c. R. 2021 QCCA 601 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007222-191 (760-01-087773-179, 760-01-089177-189, 760-01-089178-187, 760-01-089638-180) DATE: April 15, 2021 CORAM: THE HONOURABLE DOMINIQUE BÉLANGER, J.A. CHRISTINE BAUDOUIN, J.A. FRÉDÉRIC BACHAND, J.A. SEBASTIAN PARLEA APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT A NON-PUBLICATION AND NON-BROADCAST ORDER IN THIS PROCEEDING HAS BEEN ISSUED ON NOVEMBER 7, 2018, BY THE HONOURABLE BERTRAND ST-ARNAUD, J.C.Q., PURSUANT TO SUBSECTION 486.4(1) OF THE CRIMINAL CODE . [ 1 ] This is an appeal from a judgment rendered on October 29, 2019, by the Court of Québec, District of Beauharnois (the Honourable Joey Dubois), [1] which found the appellant guilty on a number of counts relating to sexual interference and sexual assault on children under the age of 16, production and possession of child pornography, rendering sexually explicit material available to a child under the age of 16, as well as breach of conditions. [ 2 ] For the reasons of Bachand, J.A., with which Bélanger and Baudouin, JJ.A. concur, THE COURT: [ 3 ] DISMISSES the appeal.

DOMINIQUE BÉLANGER, J.A. CHRISTINE BAUDOUIN, J.A. FRÉDÉRIC BACHAND, J.A. Mtre Giuseppe Battista Mtre Robert Israel BATTISTA TURCOT ISRAEL Lawyers for the Appellant Mtre Patrick Cardinal DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS Lawyers for the Respondent Date of hearing: March 9, 2021

REASONS OF BACHAND, J.A. [ 4 ] This is an appeal from conviction on a number of counts relating to sexual interference and sexual assault on children under the age of 16, production and possession of child pornography, rendering sexually explicit material available to a child under the age of 16, as well as breach of conditions. [ 5 ] The thrust of the appellant’s case is that the trial judge failed to consider key evidence that bore on the credibility of the witnesses and that he also misapprehended the evidence in a number of respects.

The appellant argues that the judge’s mistakes constitute errors of law that led to a miscarriage of justice. He asks the Court to order a new trial on all counts except for the breach of conditions count, regarding which he seeks an acquittal. I. Context [ 6 ] The appellant was a special care counselor employed by a community organization providing at-home child-caring services to families with children who suffer from light to heavy disabilities. Three children — X, Y and Z —, belonging to two separate families, claimed that he had touched them in a sexual manner while they were under his care.

One of the children, X, also claimed that the appellant had taken photos of him depicting his genital organs and shown him other photos of a pornographic nature. [ 7 ] X has a mild mental disability. Y is autistic. Z has an attention deficit disorder. At the time of trial, which took place in the spring and summer of 2019, the three children were aged between 7 and 11 years old. [ 8 ] The police became involved after what the trial judge referred to as the peanut butter incident.

According to X, after dinner in early November 2017, the appellant removed peanut butter from a jar with his fingers and spread it on X’s penis. X further claimed that the family dog then licked the peanut butter off his penis. After hearing about the incident the next morning, X’s mother contacted the police. [ 9 ] Y and his younger brother Z later came forward with allegations of sexual interference and sexual assault following a newspaper

article relating the charges that had been brought against the appellant in relation to X. [ 10 ] The police found on the appellant’s mobile phone 73 thumbnails of pictures of X and his twin brother A, as well as of nudist photos. On some of these pictures, X’s penis is showing. The police later seized the appellant’s tablet computer and realized that four pictures of children urinating and a fifth picture of X naked were available for viewing by the appellant through OneDrive, a cloud storage application.

Moreover, the tablet contained nudist pictures, evidence of searches using terms such as “little naked boy”, “nudism boy”, “little boy erect penis”, as well as terms relating to a website known to the police as hosting child pornography. In addition, copies of the five pictures stored on OneDrive and evidence of use of similar search terms were found on the appellant’s laptop computer. [ 11 ] During the trial, an admission with regards to a DNA test performed on the contents of peanut butter jar was filed.

The accompanying report concluded that a sample taken from a portion of an indentation found in the jar contained female DNA, but no male DNA valid for comparison. The report further indicated that the test had not excluded the possibility that another genetic profile was present in or on the jar. II.

Judgment under appeal [ 12 ] The trial judge rejected the appellant’s testimony as not credible after having noted that he had been contradicted by almost all the witnesses, that his explanations regarding the context in which he took some of the pictures were not compelling and that he had lied about not having taken certain pictures.

The judge also rejected as not credible the testimonies of the appellant’s wife and daughter offering explanations for the search terms found on his tablet and laptop computers. [ 13 ] Turning next to the prosecution’s case, the judge found that X had testified in a compelling manner despite minor contradictions, and that his account of the alleged incidents was corroborated by his brother A, as well as by pictures that were filed as evidence.

After rejecting the appellant’s explanation that it was X who had taken peanut butter out of the jar and fed it to the dog, the judge found him guilty of sexual interference against X.

However, he did so without ever mentioning the results of the DNA test. [ 14 ] The judge also found the appellant guilty of making sexually explicit material available to X after disregarding his explanation that, with the permission of X and A’s mother, he had shown the pictures on one occasion and in order to explain the difference between circumcised and uncircumcised penises. [ 15 ] The judge further held that Y and Z had testified convincingly about the alleged incidents involving sexual interference and sexual assault.

He also concluded that the accused’s explanations regarding the context in which he touched Y and Z’s penises were not credible. He found him guilty of all charges involving Y and Z. [ 16 ] With respect to the allegations of production and possession of child pornography, the judge again rejected the appellant’s testimony as not credible. He found that most of the pictures at issue prominently depicted children either naked or with their pants down and displaying their penises.

He also found that the pictures had been taken by the appellant and that, if some had been taken by the children, this had necessarily occurred with the appellant’s consent and knowledge. The judge did not find that all of the pictures constituted child pornography, but he did conclude that 40 of them met the applicable legal requirements.

[ 17 ] Lastly, the judge found the appellant guilty of breaching the conditions of his recognizance because he was still in possession, in March 2018, of five pictures of child pornography. III. Analysis [ 18 ] I begin with the appellant’s main argument, which focuses on the trial judge’s failure to consider the results of the DNA test performed on the peanut butter jar. A.

The failure to consider the DNA evidence and the resulting misapprehension of key aspects of the evidence [ 19 ] The appellant first contends that the DNA test constituted an objective measure that had significant importance to the alleged sexual interference against X. He explains that if X and A’s accounts of the incident were truthful, male DNA — more specifically, the appellant’s DNA — would have been found in the jar.

Moreover, given that X and A’s mother testified that she had never put her fingers in the jar and that no evidence suggests that X and A’s sister had access to the jar, no female DNA should have been found.

In these circumstances, the judge ought to have considered the possibility that X and A’s accounts were at a minimum unreliable. [ 20 ] The appellant further contends that the peanut butter incident is of utmost importance to this case, because he believes that the judge’s failure to consider the DNA evidence led him to conclusions on credibility that affected his findings on the other offences with which the appellant was charged.

Relying — among other cases — on the Supreme Court’s decision in Lohrer , the appellant argues that “the errors thus identified [played] an essential part not just in the narrative of the judgment but ‘in the reasoning process resulting in a conviction.’” [2] [ 21 ] In response, the Crown emphasizes that the admission was to the effect that “no male DNA valid for comparison” [3] had been found in the sample that had been analyzed, which is very different from a finding that there was no male DNA at all in the jar.

As a result, the DNA report was of no use to the trial judge, because it did not sufficiently prove nor disprove the testimonial evidence offered by the parties in relation to the peanut butter incident. The Crown thus contends that the trial judge made no error, let alone a consequential error, when he decided not to address the results of the DNA test. [ 22 ] The governing principles are well established and accepted by both parties.

They were summarized by then Chief Justice Duval- Hesler in Dufour : [4] [45] Les tribunaux ont souvent affirmé que l’omission de considérer un élément de preuve pertinent constitue une erreur de droit. [46] En effet, l’accusé a droit à un examen des éléments de preuve qui peuvent lui être favorables et qui se rapportent à la question ultime à trancher.

L’omission de ce faire, si l’élément concerné revêt suffisamment d’importance , justifie l’intervention d’un tribunal d’appel. [47] Cette obligation est d’autant plus importante lorsque l’accusé, comme en l’instance, fait face à une sanction sévère. [Emphasis added; references omitted] As is clear from this excerpt, appellate courts will intervene upon a demonstration that the trial judge overlooked an item of evidence that was not only relevant, but also of sufficient importance to the case. [ 23 ] This point was also made by the Supreme Court in Burns , where, commenting on the holding in Harper that “[w]here the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede”, [5] it said this: [6] This statement should not be read as placing on trial judges a positive duty to demonstrate in their reasons that they have completely appreciated each aspect of relevant evidence.

The statement does not refer to the case where the trial judge has failed to allude to difficulties in the evidence, but rather to the case where the trial judge’s reasons demonstrate that he or she has failed to grasp an important point or has chosen to disregard it, leading to the conclusion that the verdict was not one which the trier of fact could reasonably have reached. [ 24 ] Also noteworthy is Thibodeau c. R. , [7] a 2018 case where the appellant had been charged with failing to stop his vehicle while being pursued by a peace officer.

The chase had resulted in an accident and the accounts presented by the appellant and the peace officer differed significantly. Credibility was thus a central issue. On appeal, the appellant argued that the trial judge had erred in law by failing to consider pictures of the scene of the accident which he deemed relevant to credibility.

After having quoted from both Dufour and Harper , the Court dismissed the argument on the ground that the pictures were not as probative as the appellant contended: “ ces photos ont été produites à la suite d’une admission et le détail entourant la capture des images n’est pas en preuve, ce qui limite les conclusions que la juge pouvait en tirer. ” [8] [ 25 ] This is a similar case, because not much can be inferred — one way or another — from the results of the DNA test that was performed on the peanut butter jar.

The results themselves are limited in scope: they only relate to a portion of the indentation found in the jar at the time of the test; they only state that there was no male DNA valid for comparison in that sample, not that there was no male DNA at all; and the parties admitted that the test had not excluded the possibility that another genetic profile was present in or on the jar. [ 26 ] Moreover, no expert evidence was adduced to explain the properties of DNA and the way in which it can be left and found on a substance like peanut butter.

This point is critical because, as underscored by the Ontario Court of Appeal in Manjra , “[c]ourts in Canada require expert evidence to explain DNA and the significance of its presence or absence in respect of particular locations”. [9] It also bears noting that the record is devoid of any evidence tending to establish how the peanut butter sample was taken, nor does it precisely

address who had access to the jar after the incident occurred. [ 27 ] The Crown is right to see similarities between the present case and Dueck , which the Saskatchewan Court of Appeal decided in 2011. [10] The appellant, who had been convicted of sexual assault, had raised in appeal an argument focusing on the inconsistency between the complainant’s testimony and the results of genetic tests that had not revealed the presence of either semen or male DNA.

The Court of Appeal dismissed the argument as follows: I acknowledge that the absence of DNA evidence, in light of the complainant’s testimony, appears on the face of things to be surprising. However, it is important to recall the precise results of the testing. The agreed statement of facts in respect of this matter said only that five samples were tested and that the presence of semen was “not confirmed.” With respect to DNA, the result was described as a finding of no “male DNA profile.” This is not quite the same as positive findings to the effect there was no semen or male DNA present.

Thus, in the absence of expert evidence about the meaning of the test results and/or the likelihood that the results should have been different given the complainant’s account of the assaults, it is difficult to know what meaning to ascribe to them. Given that reality, the jury cannot be said to have acted unreasonably by failing to acquit because of the test results. See: R. v. Lemmon , 2010 ABCA 193 , 2010 CarswellAlta 1124 at para. 9 . [ 28 ] For these reasons, the appellant has failed to demonstrate that the trial judge erred in law by not discussing the results of the DNA test.

This conclusion also disposes of the argument that the judge misapprehended the evidence on 14 other occasions, because the appellant contends that these findings are only problematic when considered together and in the context of the alleged mishandling of the DNA evidence. [11] I agree that, once it is established that no error was made in relation to the DNA evidence, the mistakes the trial judge allegedly made in relation to these other findings would not be sufficiently consequential to justify a new trial. B.

The failure to consider key evidence regarding the charge of making sexually explicit material available to X [ 29 ] The appellant further contends that the judge failed to consider two aspects of the evidence relating to the count of making sexually explicit material available to X.

Specifically, he submits that, in order to properly assess his mens rea , the judge had to address, firstly, the testimony offered by an expert on psychosocial intervention and behavior for children regarding the benefits of using visual aids with children with special needs and, secondly, X’s statement to the effect that he had asked the appellant to show him sexually explicit pictures.

The appellant claims that this evidence was significant, because it provided an “innocent basis for showing the photographs.” [12] [ 30 ] The appellant admitted at trial that he had shown pictures of different penises to X and his brother A. His explanation was that, with the approval of the children’s mother, he had shown the pictures in order to explain the difference between circumcised and uncircumcised penises.

However, both children testified that the appellant had shown them pictures not only of penises, but also of vaginas, other body parts, as well as “defecation and buttocks.” Furthermore, the children’s mother denied having had a conversation with the appellant about circumcision or having given him permission to show pictures of penises to X and A.

The judge also noted that at least one incident of sexual interference involving X had occurred after he had been shown pictures of a sexual nature. [ 31 ] Based on these circumstances as well as on the fact that the evidence also showed that the children had developed a habit of being naked in the appellant’s presence, the judge concluded that he could “find no other reason for showing penises, vaginas, and naked people to children he is babysitting, other than to further his intention to normalize nakedness, and facilitate sexual interference.” [13] [ 32 ] As explained above, the failure to discuss evidence can only amount to an error of law if the evidence in question was not only relevant, but also sufficiently important to lead one to believe that, because of the omission, the verdict was unreasonable. [ 33 ] That standard is not met in respect of the expert testimony on the benefits of using visual aids with children who, like X, suffer from a developmental disability.

That testimony merely spoke to the plausibility of the appellant’s explanation to the effect that he regularly used pictures to communicate more effectively with X. It was not particularly probative as to the appellant’s specific state of mind when he showed pictures of penises to X. [ 34 ] As for X’s statement, while he did state that he had asked the appellant to show him sexually explicit pictures, he also stated shortly thereafter that he did not know why the appellant had shown him pictures of that nature.

X’s statement is ambiguous at best and it falls short of the kind of particularly important evidence that a trial judge must discuss in his or her reasons. C. The lack of evidence properly supporting a finding of guilt in relation to the count of breach of conditions [ 35 ] The last ground of appeal relates to the count of breach of conditions.

When the appellant was released two days after his arrest in December 2017, he was required to keep the peace and be of good behaviour, and also to refrain from using the Internet or any other digital network. [ 36 ] The trial judge found the appellant guilty on the ground that, in March 2018, he was in continued possession of five pictures constituting child pornography.

The judge came to that conclusion after having found, firstly, that the appellant was aware that that the pictures were stored remotely on his OneDrive and, secondly, that the pictures continued to be available for viewing using the OneDrive application installed on his tablet computer. [ 37 ] The appellant first contends that the judge’s analysis was flawed because, being legally forbidden from using the Internet in March 2018, he could not possibly have breached the requirement to keep the peace and be of good behaviour.

As his lawyers put it in their brief: “[t]he judge found him guilty for having the possibility of doing what he was legally prohibited from doing.” [14] [ 38 ] This argument has no merit. [ 39 ] At issue here is an alleged situation of constructive possession, a concept which the Supreme Court explained in Morelli as

follows: [15] Constructive possession is established where the accused did not have physical custody of the object in question, but did have it “in the actual possession or custody of another person” or “in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person” ( Criminal Code , s. 4(3) ( a )).

Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his “use or benefit” or that of another person.

The Supreme Court also clarified in Morelli that, in the case of digital images, possession relates to the actual image file rather than a visual display or rendering of the image. [16] [ 40 ] The problem with the appellant’s argument is that it ignores the fact that the elements of constructive possession do not change in relation to objects that a person is legally prohibited from possessing. This point was recently emphasized by the Ontario Court of Appeal in Degraw , [17] a case involving a man who was under a lifetime firearms prohibition order.

He had made a threat to his girlfriend that included having access to a gun for sale at a store, and had later acknowledged that he had been involved in putting the firearm up for sale.

At trial, he denied having had control of the weapon on the ground that, in the case of an alleged violation of a firearms prohibition order, the Crown ought to be required to prove that the accused had physical control of the item or, at a minimum, that he intended to take physical control thereof. [ 41 ] In rejecting the argument, the Court of Appeal pointed out that “[a] person who is prohibited from possessing weapons, but maintains some level of control over them, is still dangerous.” [18] It concluded that “[t]here is no statutory, legal or logical reason to add a new or different element to possession when it comes to offences involving weapons prohibition orders.” [19] The Court further found that the Crown’s evidence clearly supported a finding of constructive possession. [ 42 ] The same reasoning applies here.

The appellant knew of the five pictures and he was also aware that they remained on a remote server over which he continued to have effective control in March 2018.

That sufficed for the trial judge to find that he continued to be in possession of child pornography in March 2018. [ 43 ] The appellant puts forward a second argument, which is that, because the five pictures could not have been removed from his OneDrive without accessing the Internet, and because another condition of his release was that he refrain from using the Internet, he was legally prohibited from taking the steps needed to cease possessing the materials. As a result, he should not be found to have failed to keep the peace and be of good behaviour.

The Crown responds that the prohibition on using the Internet did not prevent him from deleting his OneDrive account himself or taking other steps that could have led to the removal of the five pictures from his OneDrive. [ 44 ] Under the relevant provisions of the Criminal Code , the failure to comply with the conditions of an undertaking will not attract criminal liability if the accused had a “lawful excuse/ excuse légitime ” for engaging in the impugned behaviour. [20] As the Supreme Court made clear in Zora , the “lawful excuse” language has nothing to do with the mens rea of the offence; it rather “provides an additional defence that would not otherwise be available to the accused.” [21] That defence is highly fact-specific because, as Justice Gary T.

Trotter explains in his treatise on the law of bail, “[n]o context-specific definition of ‘lawful excuse’ has emerged from the case law.” [22] Moreover, the burden rests on the accused to prove, on a balance of probabilities, circumstance amounting to a lawful excuse. [23] [ 45 ] The issue here, then, is whether the appellant has met his burden.

In my opinion, he has not, and I come to this conclusion for three reasons. [ 46 ] The first is that the premise on which the appellant’s argument rests — which is that he could not have removed the pictures or deleted his OneDrive account without breaching the condition not to use the Internet, and thus without committing a criminal offence — is flawed.

A condition prohibiting the use of the Internet is itself subject to the lawful excuse defence, and a person who knowingly fails to comply with such a condition for the sole purpose of taking steps aimed at ending criminal behaviour he or she was engaged in would surely have a lawful excuse negating any criminal responsibility. [ 47 ] The second reason is that the evidence does not show that, at any time before March 2018, the appellant intended to remove the pictures from his OneDrive or to delete his account, but failed to do so out of a belief that the prohibition on using the Internet prevented him from taking either of those steps. [ 48 ] The third and final reason is that the appellant offered no evidence nor argument tending to demonstrate that the pictures could only be removed — or his OneDrive account deleted — if he personally used the Internet.

I am not prepared to assume that he had no other reasonable alternatives in order to achieve that objective. [ 49 ] Therefore, on the record as it stands, the trial judge was right to find that the accused had failed to keep the peace and be of good behaviour. [ 50 ] I would dismiss the appeal. FRÉDÉRIC BACHAND, J.A.