r v. Dany MORIN, 2015 QCCQ 10452

R. c. Morin 2015 QCCQ 10452 COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL N o : 500-01-100734-141 DATE: 19 October 2015 (oral judgment); written reasons 23 October 2015 _____________________________________________________________________________ BEFORE THE HONOURABLE PATRICK HEALY, J.C.Q. _____________________________________________________________________________ THE QUEEN Prosecutor v.

Dany MORIN Accused _____________________________________________________________________________ JUDGMENT _____________________________________________________________________________ Introduction [ 1 ] On 19 October 2015 Mr. Morin was found guilty of uttering threats against the complainant for the purpose of compelling the complainant S.R. not to testify [1] and of harassment against the complainants S.R. and T.G. [2] These are the reasons for that conclusion. General [ 2 ] I begin by noting that even though Mr. Morin testified in his own defence he has nothing to prove.

The presumption of innocence imposes upon the prosecution the burden to prove the guilt of an accused person beyond reasonable doubt. If I believe the testimony of the accused, or any other exculpatory evidence, the accused must be acquitted. Even if I do not believe the testimony of the accused, or any other exculpatory evidence, I must also acquit the accused if that evidence raises a reasonable doubt. In any case I must acquit the accused if on the whole of the evidence at the end of the case guilt has not been proved beyond reasonable doubt. [3] Testimony of S.R. [ 3 ] Mr.

Morin’s relation with the complainant S.R. ended after three years. While it lasted, the relationship was not always harmonious. There were conflicts that resulted in legal proceedings, notably criminal proceedings against Mr. Morin. [4] S.R. was called to give evidence in those proceedings on 3 February 2014. [ 4 ] S.R. testified before this court that on 9 January 2014 she was awakened around midnight by a call to her mobile telephone.

She answered and the caller said that if she attended court to testify on 3 February 2014 he would hunt her down and kill her. [5] She said that the source of the call was blocked [6] but she identified the caller as Mr. Dany Morin. [7] S.R. said that the voice was loud and even shouting. [8] S.R. testified that she said nothing in response, [9] that the call lasted between ninety (90) seconds and three minutes [10] and that the caller hung up on her.

She testified further that at the time of the call she was in bed with T.G. [11] She said that after the call ended she went back to sleep. [12] When she awoke the next morning she realised that the call was not a dream and reported it to the police instead of attending school. [13] [ 5 ] S.R. also testified that between the end of her relationship with Mr. Morin and the call on 9 January 2014 she encountered him on several occasions late at night: Q. I’m sorry. Between the end of your relationship with Mr.

Morin and this phone call you received on January ninth (9 th ), two thousand fourteen (2014), did you have any other contact with him? [14]

A. Yes. He knows that because I work so much and I go to school, he knew all my routines and the only place that I went to at night, which is a bar, was MacAllan’s Bar and, because of that, he was not… he’s not allowed into MacAllan’s Bar. He’s been barred from it because of all the attacks that he has done at that location. So, he’s not allowed in there but he knew that I’d always go there, so he would wait for me in the parking lot and scream profanity, show me fingers, yell out things and than peel away, driving away. But he would still stay there at night.

He knew that, every Saturday, I will end up there eventually. Q. Okay. And are you able to tell us when you saw him in the parking lot? A. I can’t say the exact date, but I know that it was always after one o’clock (1:00) in the morning. And he was driving his mom’s vehicle. Q. When you say he’s saying insanities [ sic ] to you, he… do you remember what he would say to you or no? A. Yes, he would verbally shoit [ sic ] out the C word, cunt, and whore, slut, fuck you, and then peel off very quickly. This conduct is described further in the cross-examination of S.R. [15] Testimony of T.G. [ 6 ] Mr.

T.G. testified that he was in bed with the complainant S.R. when there was a call on her mobile phone between midnight and 00h30 on 9 January 2014. [16] After she answered the call he heard the caller say “If you show up on court on the third (3 rd ), I will hunt you down and fucking kill you.” [17] He said that the caller was not shouting but that the words were clearly audible due to the high volume in the telephone. [18] T.G. testified that the call took no longer than the time required to pronounce the sentence he heard and he estimated its length at twenty-five (25) seconds.

When asked again what precise words were spoken by the caller, T.G. said: “If you show up on court on the third (3 rd ), I will fucking hunt you down and kill you.” [19] He also testified that after the call he and S.R. spoke about it for thirty or forty minutes before he eventually fell asleep. He described S.R. as agitated, restless and unable to sleep after the call. [ 7 ] T.G. also described in his testimony some other incidents involving Mr. Morin. In general terms he said that he encountered Mr.

Morin several times near a local convenience store or in the car park of MacAllan’s Bar. [20] He said that there was an exchange of looks between him and Mr. Morin. Mr. Morin did not address words to him directly but on one occasion made a gesture to him with his middle finger. [21] He noted that in these encounters Mr. Morin addressed insults to the complainant S.R. [22] [ 8 ] T.G. also testified about a specific incident on Autoroute 20 in which he was driving S.G.’s car. Another car approached from behind and made several manoeuvres.

He described the vehicle as “a Nissan Pathfinder with a smashed left side.” [23] T.G. said that the other car was “road raging up … coming up close behind me, trying kind of running me off the road, cutting me off type of thing and I … I recognized, to my knowledge, the driver was Mr.

Morin.” [24] He added these observations: “Well, coming up real close behind, tailgates … tailgate, change lane, would come right back behind, stay up in the tailgate, tailgate, and then come beside and then drop back, tailgate and then accelerate forward and then swerve in front of me and then accelerate, gone.” [25] T.G. was unable to provide a date for this incident but testified that it would have been between November 2013 and February 2014. [26] Testimony of A.S. [ 9 ] For the defence Mr. A.S. testified first. He said that he collected Mr.

Morin at his home around 20h30 on 8 January 2014 and that the two men spent the evening at A.S.’s apartment. They ate, watched a movie and played games. By his estimation A.S. left his apartment with Mr. Morin at some time “just after twelve thirty (12:30).” [27] He testified that he could remember only one phone call received by Mr. Morin during the evening but could not recall the time at which Mr. Morin’s mother called. [28] A.S. says he dropped Mr. Morin at 01h05. He also says that was constantly in Mr.

Morin’s presence between 20h30 and 01h05. [29] [ 10 ] In cross-examination A.S. says that there might have been other calls than that from Mr. Morin’s mother but that it was “highly unlikely.” [30] Testimony of Betty Morin [ 11 ] Betty Morin is Mr. Morin’s mother. She testified that she telephoned Mr. Morin once during the evening of 8 – 9 January 2014. [31] Testimony of Mr. Morin [ 12 ] Mr.

Morin testified and denied categorically that he called S.R. early in the morning of 9 January 2014 [32] and that at any time he had harassed S.R. or T.G. [33] The central points in his testimony may be summarised as follows: before proceedings in this case, Mr.

Morin did not know T.G. and had never seen him; [34] he has never driven near S.G.’s car and that if he ever saw it he would drive away; [35] his Nissan Pathfinder was damaged in a collision on 27 November 2013 and was inoperable thereafter; [36] he frequently went to a convenience store about 200 feet from MacAllan’s Bar, but never to that bar, and when he had finished his errands at the convenience store he would leave; [37] he did not know that S.R. was at that bar or might be at that bar, and that if he did he would not go there because he needed to attend to his children and because it was forbidden by court-imposed conditions for him to be in that place; [38]

he has frequented MacAllan’s Bar with S.R. but that after their relationship ended he had no reason to believe she would be there; [39] he had in his possession on 9 January 2014 his father’s mobile telephone; [40] On 9 January 2014 only a few persons close to him knew of pending proceedings in court that involved S.R. [41] As with the testimony of any other witness, Mr. Morin’s evidence requires scrutiny with respect to his credibility and its reliability. Conclusions [ 13 ] With respect to the telephone call of 9 January 2014, it must be determined whether this call occurred.

If it did occur, it must be determined whether its content corresponds with the testimony of S.R. and T.G. Mr. Morin, I repeat, denies that he made this call. [ 14 ] There are some discrepancies in the testimony of S.R. and T.G. concerning the call on 9 January 2014. Four should be mentioned. First, there are slight variations in their accounts of the words spoken and their sequence. S.R.’s account does not include the word “fucking” and in T.G.’s account there is some question of the placement of this word. Second, there is some discrepancy concerning the duration of the call.

S.R. estimated that it lasted between ninety seconds and three minutes. T.G. estimated that it lasted only thirty seconds. Third, there is some inconsistency concerning the tone of the call. S.R. reported that the voice was raised. T.G. said that the tone was not raised, but for the word “fucking.” Fourth, there is some inconsistency as to what happened immediately after the call. S.R. said that she went back to sleep. T.G. said that she remained awake and restless for some time. Finally, although it is not discrepancy, S.R. identified the voice as Mr.

Morin’s; T.G. could not. [ 15 ] The substance of the call reported by S.R. and T.G. is essentially the same. Their account of when it occurred and what was said are consistent. The discrepancies identified above do not diminish the reliability of the testimony given by S.R. and T.G. While the state of relations between S.R. and Mr. Morin might otherwise raise a question about any animus she might have toward him, there is no basis on which to which to believe that T.G. has any animus toward him. Any possible suspicion that S.R. might be motivated by animus toward Mr. Morin is thereby attenuated.

Further, the possibility that someone other than Mr. Morin made the call is also mere speculation, not least because Mr. Morin himself says that only a few persons were aware of proceedings involving him and S.R. Any suggestion that S.R. might have provoked a third person to make the call is nothing but idle conjecture. Accordingly, I conclude that Count Two has been proved beyond reasonable doubt. The claim advanced by Mr. Morin in this regard leaves no reasonable doubt. [ 16 ] It is important to specify that Count Four covers more than one transaction.

It covers the alleged incidents of harassing behaviour in the car park at MacAllan’s Bar. The alleged conduct involves conduct toward S.R. and T.G. Count Four also covers the incident in which Mr. Morin allegedly harassed T.G. as he drove S.R.’s car on Autoroute 20. There is no necessity to sever the count and replace it with two separate counts. [ 17 ] With respect to the conduct in the car park at MacAllan’s Bar, the testimony of S.R. and T.G. is consistent. Both saw Mr. Morin in the immediate vicinity of the bar on several occasions.

Both of them observed, by hearing and by sight, harassing behaviour in the form of insults and gestures. Mr. Morin does not dispute that he was in the vicinity of the bar. He denies that he was close to the bar itself or that he knew S.R. was there, even though he knew from previous experience that she often went there late at night. He also denies any acquaintance of T.G. For his part T.G. denies any previous acquaintance of Mr. Morin. [ 18 ] In the conflict between the testimony of prosecution and defence witnesses it is manifestly not for the court to choose between contradictory versions.

Everything depends on a careful assessment of the whole of the evidence at the end of the case. The direct evidence concerning the events in the car park on several occasions is clear, fluid and consistent. Apart from Mr. Morin’s denial, there is no contradiction of this evidence of harassing words and gestures on several occasions. As noted, Mr. Morin acknowledges that he was in the area. Further, notwithstanding any conflict that might exist between Mr. Morin and S.R., there is no basis on which to believe that T.G. is motivated by any animus toward him.

Thus, on the whole of the evidence, the allegation of harassment concerning incidents in the car park has been proved beyond reasonable doubt. [ 19 ] The second component of the charge of harassment concerns the incident on Autoroute 20. This too has been proved beyond reasonable doubt. T.G. testified clearly that this incident involved a Nissan Pathfinder that had been substantially damaged. His description of that vehicle corresponds with that given by Mr. Morin himself. The only substantive discrepancy concerns the date. Mr.

Morin testified that his damaged car was inoperable from 27 November 2013, while T.G. says that this incident occurred between November and February 2014. This uncertainty does not detract from proof of the incident but it does not correspond with the dates stated in Count Four. This is a matter for amendment of the count to conform with the evidence and I so order for this reason that Count Four be amended by replacing “November” for “December.” FOR THESE REASONS, Mr. Morin is found guilty on Count Two and Count Four, as charged.

There will be a stay of proceedings on Count One and Count Four. [42] ____________________________________ PATRICK HEALY, J.C.Q. M e Emmanuelle Viau-Smith For the prosecution M e Denise Fernet

For Mr. Morin Date of hearing: 28 November 2014; 12 June 2015.