r v. David, 2011 QCCQ 4144

R. c. Garmaise 2011 QCCQ 4144 COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL N o : 500-01-047796-104 DATE: 2 May 2011 _____________________________________________________________________________ BEFORE THE HONOURABLE PATRICK HEALY, J.C.Q. _____________________________________________________________________________ THE QUEEN Prosecutor v. David GARMAISE Accused _____________________________________________________________________________ JUDGMENT _____________________________________________________________________________ [ 1 ] Mr.

Garmaise is charged with assault [1] and with harassment. [2] The defence does not contest that Mr. Garmaise accosted the complainant, intentionally touched her without her consent and persistently importuned her by words and gestures that induced her to feel alarm and to fear for her safety. The defence acknowledges that this conduct was “inappropriate,” in Mr. Morena’s words, but that it was really no more than an awkward attempt by Mr. Garmaise to “pick up” the complainant.

Although not formally presented as such, the defence is essentially a claim of de minimis . [ 2 ] The evidence of the complainant discloses that Mr. Garmaise touched her person more than once. On the last contact he grabbed and would not release her hand. She had to use strength to disengage herself from him. It was her uncontradicted testimony that this touching, quite apart from any others in the sequence of events, was intentional and was not made with her consent. This is the definition of a simple assault. Of course Mr. Garmaise bears no burden to prove anything and he chose to testify in his own defence.

Nothing in his evidence raises a reasonable doubt on the whole of the case that he intentionally touched the complainant without her consent. [ 3 ] After fleeing from his grasp, the complainant was fearful for her safety and sought refuge in a local bar where she knew the owner. Mr. Garmaise followed her. By doing so he only exacerbated the anxiety and apprehension that she already sensed. In short, he persisted in his design to “pick up” the complainant by a sustained sequence of actions and in doing so only exaggerated her sense of alarm.

Such persistence, even if he had never met her before, proves the elements of harassment as defined by

section 264 of the Code. I am persuaded beyond reasonable doubt that the consequence of Mr. Garmaise’s conduct was to harass the complainant and to induce fear for her safety, that her sense of harassment was genuine and entirely reasonable in the circumstances, and that given her attempts to extricate herself from him he knowingly persisted in his harassing conduct. [ 4 ] The offences proved beyond reasonable doubt in this case are concerned with bodily integrity and with psychological well- being. Mr.

Garmaise’s conduct interfered with the complainant’s sense of both, thus constituting assault and harassment as charged respectively in the two counts. His testimony does not contradict that of the complainant or raise a reasonable doubt in respect of any element in these two counts. By admitting on oath that he wanted to pick her up, he admits a motive for his actions and that motive only confirms that evidence otherwise proves the offences charged. For these reasons there is a finding of guilt on both counts. ____________________________________ PATRICK HEALY, J.C.Q. M e Hélène Décary For the prosecution

M e Louis Morena For Mr. David Garmaise Date of hearing: 14 December 2010