2018 QCCQ 7463, 2018 QCCQ 7463

R. c. Di Clemente 2018 QCCQ 7463 COURT OF QUEBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF BEAUHARNOIS CITY OF SALABERRY-DE-VALLEYFIELD Criminal and Penal Division No : 760-01-083768-173 DATE : March 20, 2018 ______________________________________________________________________ BY THE HONOURABLE JOEY DUBOIS, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecution v.

Francesco Di Clemente Accused ______________________________________________________________________ JUDGMENT Restriction on Publication: By Court Order, information that may identify the person described in this judgment as the complainant may not be published, broadcast, or transmitted in any way. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application. See the Criminal Code , s. 486.4 ______________________________________________________________________ CONTEXT [ 1 ] Mr.

Di Clemente is accused of having, by means of telecommunication, communicated with X, aged 13, for the purpose of committing an offense of a sexual nature. FACTS [ 2 ] The events leading up to the charge as presented by the crown can be described as follows. [ 3 ] On November 10th, the accused used Facebook’s messaging platform called « Messenger » to contact X, whose last name will not be mentioned in this decision. X is his neighbor’s daughter. He knew X well.

He wasn’t only a neighbor, but also a friend of X’s family. [ 4 ] The accused and his family would often see and visit with X and her family and vice versa. In fact, the accused has children himself and his daughter is friends with X. [ 5 ] The evidence is to the effect that the accused never had exhibited behavior towards X that could explain what happened on November 10th. [ 6 ] On that day, the accused asked X, through Messenger, to be added as a Facebook friend. Once X accepted the friendship invitation, the following exchange took place (exhibit P-1). « Di Clemente : I have a question X : Yup ?

Di Clemente : Is this a private messaging thing? X : Yes, He can’t see. Di Clemente : Who is he your dad X : Yes But what is the question ?

Di Clemente : It is confidential. Can you keep it to yourself X : Yes of course Di Clemente : Ok here it goes and if you are uncomfortable please let me know X : Sure Di Clemente : Do you have fantasies as i said it is a risky question. You sure this is confidential X : No? And yes Di Clemente : Yes confisenial X : It’s making me uncomfortable… Di Clemente : Ok Ill stop Please jeep confidential Really sorry X What an embarrassment Are you ok ?

X : Sorry my dad saw the question pop up… Di Clemente : Shit Tell him i am really sorry X : But can i just ask what Di Clemente : What an idiot Working on a spcial project and neded an opinion Just forget it See you Friday. » (Reproduced as such) [ 7 ] X was using Messenger through her cell phone. This exchange took place while she was a passenger in her father’s vehicle. They were heading to the orthodontist’s. [ 8 ] She instantly showed the messages to her father, who read them after parking the vehicle. [ 9 ] She didn’t talk to the accused or have any other exchange with him after this event.

The relationship between the families ended. [ 10 ] She tells the Court that she felt disgusted and angry. She also mentions that she was and still is asking herself a lot of questions since having received these messages. [ 11 ] Her father, J., corroborated her testimony. He testified that X showed him the messages in the car. He was asking himself why the accused would send these messages to X. When he got home he showed the messages to his wife. [ 12 ] His wife called the accused and then passed the phone to him. J. asked him « why X ? » and the accused didn’t respond.

J. then told him that he must be tired, and that he should get some rest. [ 13 ] The following Sunday, November 13th, J. received a text message from the accused. It reads (exhibit P-2): Salut J... J’ai personne à qui me confier. Les textes de cette semaine sont un résultat de stress et. Si tu ne veux pas t’impliquer je te comprends… Mais je ne veux pas reproduire mon geste. Je suis une personne d’intégrité et de respect le plus haut pour les autres et ne ferai jamais de mal à personne.

Avec sincérité Franco. (Reproduced as such) [ 14 ] J. responded that his family didn’t want any contacts with him anymore. [ 15 ] The tenure of the conversation the accused had with X shocked him. [ 16 ] A., X’s mother confirms that the Di Clemente family was close to their family. They were good friends. [ 17 ] She testifies that on November 10th, when she got home, X and her husband showed her the exchange that had taken place on Messenger. She couldn’t believe it. She decided to call the accused. She called three times before getting an answer.

When the accused answered, he only had time to say « I am so sorry » before she passed the phone to her husband. [ 18 ] After that phone call, she got two text messages from the accused (P-3). In the first one, he says “Please forgive what I did. Mid- life crisis I hate myself.”; and in the second one, the next day, he wrote “Hi A. after what happened with my stupidity I feel very uncomfortable coming to J.’s party. My sincere apologies.” [ 19 ] Those are the facts as outlined by the crown’s evidence. [ 20 ] The accused chose to present a defense. He testified. [ 21 ] He explained that in 2014, he lost his job.

He bought a Bagel shop in 2015 with the money he had set aside, and was the owner and manager of that same bagel shop in November 2016. [ 22 ] He declared no income in 2015 and only 16 000$ in 2016. He testifies that he was working very long hours. [ 23 ] He explained that he is a recovering alcoholic and drug user. He stopped using and drinking in 2005. [ 24 ] He stayed sober until November 2016. At that time, he started using Crystal meth. [ 25 ] On November 10th, he was high on drugs. He was functional but erratic in his behavior, very intoxicated from the crystal meth.

[ 26 ] Drugs change his personality. When sober, he describes himself as being an outstanding individual. When on drugs, he hates himself. His mind races at 1000 km an hour and he says things that are completely ridiculous to others. For example, he says, he can tell a gay employee that he looks good, even though he is trained in sexual harassment and knows he shouldn’t say things like that. [ 27 ] On November 10th, it was his third day without sleep. He had it in the back of his mind that it was J.’s surprise birthday party the next Friday. He says he valued J.’s friendship tremendously.

While delivering bagels, he stopped at a McDonald’s restaurant. He was thinking he had to find an outstanding birthday gift for J., wanted to buy him something special. So, in his intoxicated mind, he decided to contact J.’s daughter, X. [ 28 ] He asked if the conversation was confidential, because in his mind he didn’t want J. to see the exchange, the party being a surprise. He can’t explain why he contacted X instead of J.’s wife, A.. When he asked if X had “fantasies” he used the wrong terminology. He meant something surprising for her and her dad.

He explains “fantasies” meant an outstanding gift, like Fantasy Football or Fantasy Hockey. He describes his mind as being in and out of consciousness, when he was writing. He couldn’t express himself correctly because he was too intoxicated. [ 29 ] He says evidence of him being intoxicated in the conversation appears throughout the exchange, in the form of mistakes in his typing. He never makes mistakes when he writes when he is sober. [ 30 ] When X wrote that the conversation was making her uncomfortable, he understood that his messages were misinterpreted.

He ended the conversation. [ 31 ] He went home and received a call from A., X’s mom. He said he was sorry, that he could have lied, told her the account was hacked, but chose not to. [ 32 ] He was less intoxicated when he texted A. and J., later that day and the following day. He testifies that the reference to a mid-life crisis in one of the texts he wrote was related to his use of drugs and his lifestyle at that moment. He had financial problems, had lost a lot of weight, his health was impacted, he was working too much and taking drugs. That was his mid-life crisis. It had nothing to do with sex.

He is not a sexual guy. [ 33 ] In cross examination, he says that when he is intoxicated, things just come out of his mouth spontaneously, before he realizes it. He explains that he always knows what he is doing, and that he can drive his car and make his bagel deliveries, even though he says he was in and out of a conscious state (not physically, but mentally). [ 34 ] He says that during his 3 day relapse on drugs, his sister asked him if he was taking drugs.

He denied it and admits that he lied to her. [ 35 ] He says he bought the drugs from some guy in Montreal for 100 or 150 dollars, he doesn’t remember, and that the bag came with a pipe. [ 36 ] He maintains the messages to X were “absolutely about J.’s birthday and what outstanding gift he could buy him”. [ 37 ] When asked why he wrote “If you are uncomfortable please let me know” to X at the start of the Messenger conversation he can’t explain why he would have asked her that. [ 38 ] When asked why he wrote “this is a risky question” he can’t explain why he used that word.

He thinks it is because he knew her dad was there and he didn’t want him to find out he was looking for a gift for him. [ 39 ] He maintains that he only wanted to find an outstanding gift for J.. But reading the exchange with X, he can’t explain his choice of words, other than to say he was intoxicated and not thinking right. [ 40 ] He maintains that fantasy was referring to something outstanding, like fantasy Baseball.

It was a gift he wanted to give to all three of them (J., A. and X). [ 41 ] He admits that when he asked X if she had fantasies, he wasn’t working on a special project, even though that is what he said to justify the question in the conversation. The special project, he then goes on to say, is the gift. [ 42 ] He can’t explain why the word gift is nowhere in the exchange with X. [ 43 ] He can’t explain why he never asked A., X’s Mother, in person or via Messenger about the gift, even though she was his neighbour, even though he saw her often and even though he was friends with her.

ARGUMENTS OF THE PARTIES [ 44 ] The Prosecutor maintains that the accused should not be believed, and that the evidence demonstrates the commission of the offence beyond a reasonable doubt. [ 45 ] The accused submits that his testimony should raise a doubt about the sexual nature of the conversation. That he had no sexual intent and that the wording used can be explained by his intoxicated state. He adds that even if his version is not believed by the Court, he should be acquitted because the Crown’s evidence, standing alone, cannot prove guilt beyond a reasonable doubt.

ANALYSIS [ 46 ] The first question the Court will address is the credibility of the accused. If he is believed, then he must be acquitted.

[ 47 ] The Court concludes that the accused is not credible. [ 48 ] The accused explains the conversation between himself and the 13 year old girl by saying he was misinterpreted, that he just couldn’t explain himself using the right words because he was in a state that he describes as being « unconscious » due to intoxication. The court finds there is no truth to that. [ 49 ] A reading of the conversation shows he knew exactly what he was doing. For example, he starts off by asking if the messaging service is private. He goes on to make sure X will keep it confidential, only to herself.

He knows the question he will ask might make her uncomfortable, and tells her that if it does, she should let him know. He then asks her if she has fantasies, specifying he knows it is a risky question, making sure again his message is confidential, between himself and X.

When X tells him the question is making her uncomfortable, he decides to stop, asks her again to keep the conversation confidential (for the third time) says he is embarrassed at what he said, calls himself an idiot and adds that he was working on a special project and needed an opinion. [ 50 ] So not only does he take steps to ensure the confidentiality of the exchange, but he knows the question he will ask is “risky”, might make her uncomfortable, might embarrass him.

He also takes careful steps to try and explain the reason for the question, saying he was working on a special project, which is completely false, as he admitted in court while testifying. The court concludes the accused knew exactly what he was doing and what he was saying. [ 51 ] He then tries to justify the conversation was in reality about a gift he wanted to buy for her father, because his surprise birthday party was coming up. [ 52 ] How can it be then that nowhere in the Messenger conversation do we see the words “gift” or even “birthday”.

Those were the main subjects of the conversation. [ 53 ] How can asking about a gift for her father be a “risky question”? How Can asking about a gift make X “uncomfortable” or might embarrass him? Let us remember that he says his question might make her uncomfortable before asking the question. There is no

interpretation that can lead to the Court believing he used the wrong wording by mistake. If that had been the case, he would have realized he used the wrong words and made her uncomfortable after asking the question, not before. [ 54 ] Then, he testified he realized he was misinterpreted and that is why he said he was embarrassed and used the excuse he was working on a special project. If he had really made a simple mistake in the wording he chose, he could have easily explained that to X. Instead, he chose to lie about a special project that didn’t exist. There is no misinterpretation there.

He voluntarily lied to try and hide the fact that what he did was wrong. If he really had only made a simple mistake, having realized it, he had the opportunity to explain it at that moment, and didn’t, because it was not a mistake. [ 55 ] He tries then while testifying to justify the question about her having fantasies by saying he was referring to either fantasy football, fantasy hockey, or fantasy baseball. This being what he had as an idea for an “outstanding gift” for her father. And, he adds, he wanted to give that gift to the whole family. Not only to her father.

The court does not believe this explanation. Again, if he was talking about any kind of sports fantasy league, why does he only talk about her having fantasies, instead of asking directly about fantasy sports ? This makes no sense. [ 56 ] The conversation ends, and he says he realizes he made a mistake. He goes home and is contacted by X’s parents. He has exchanges with them over the phone or by text messages that day and the following days. He is not as intoxicated at that point. He says he is sorry, asks for forgiveness, explains his words by saying he was under stress and going through a mid-life crisis.

And he specifies he does not want to pose another gesture of that kind (ne veut pas reproduire son geste : P-2). Yet, he still does not explain that this would have been a simple mistake and that he was misinterpreted. This again points to the fact that he was not, in fact, misinterpreted, and the failure to explain to the parents the apparent mistake is another reason why his testimony is not believed. [ 57 ] The Court does not lose sight of the fact, also, that the accused is capable of lying.

He did it when referring to a special project in the conversation, and admitted having lied to his sister about his drug abuse. [ 58 ] Having set aside the explanation of the accused, the Court must now determine if the evidence tendered by the Crown demonstrates beyond a reasonable doubt the commission of the offence. [ 59 ] The wording of

article 172.1

a) reads as follows : 172.1

(1) Every person commits an offence who, by a means of telecommunication, communicates with (

a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1),

section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2); (

b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under

section 151 or 152, subsection 160(3) or 173(2) or

section 271, 272, 273 or 280 with respect to that person; [ 60 ] The court does not understand why the accusation is in reference to paragraph a) of s. 172.1 which protects adolescents aged 16 and 17 from abuse by any adult or children of any age by their parent or guardian. The indictment should have been taken under 172.1

b) which relates to children under 16 years of age. [ 61 ] This mistake will not impact the decision the court has to render.

Section 601 of the Criminal code permits the amendment of the indictment at any stage of the proceedings to correct any defect in the indictment. After having considered the relevant criteria as set out by paragraph 4 of s. 601 of the Code , the court amends the indictment to read the substance of paragraph 172.1 b). [ 62 ] This being said, in order to obtain a conviction, the crown must demonstrate three elements :

(1) An intentional communication by telecommunication;

(2) With a person whom the accused knows or believes to be under 16 years of age;

(3) For the specific purpose of facilitating the commission of a specified secondary offence. Included among them are « invitation to sexual touching » a crime under s. 152 of the Code . [ 63 ] The first two conditions are met. The accused voluntarily communicated with X via telecommunication. He also knows she is 13 years old. [ 64 ] The third criteria is the one that is contested by the accused.

He submits that even if he is not believed, the Crown failed not meet its burden of demonstrating the communication, even if sexual in nature, was made “for the purpose of facilitation a secondary offence”. [ 65 ] The question of determining what those terms mean was addressed by the Supreme Court in R . c. Légare [1] the Court wrote : « [32] The (…) words (…) make clear that the intention of the accused must be determined subjectively . (…).

As Doherty J.A. stated in Alicandro , at para. 31, the accused must be shown to have “engage[d] in the prohibited communication with the specific intent of facilitating the commission of one of the designated offences” with respect to the underage person who was the intended recipient of communication (emphasis added). [33] This view is commanded not only by the plain meaning of s. 172.1(1)(

c) but also by precedent regarding other “for the purpose” offences in the Criminal Code , and policy considerations governing preparatory offences of this kind.

As Andrew Ashworth puts it: ... inchoate crimes are an extension of the criminal sanction, and the more remote an offence becomes from the actual infliction of harm, the higher the degree of fault necessary to justify criminalization. [34] As mentioned earlier, this policy consideration is particularly relevant to s. 172.1 of the Code , which criminalizes preparatory conduct even more remote from the infliction of harm than other incipient or inchoate crimes, such as attempt and counselling or procuring the commission of an offence. [35] The application of a subjective standard of fault is appropriate as well in light of the broad nature of the act component of s. 172.1. .

Requiring the Crown to prove that the accused communicated by computer with the specific intent mandated by the plain language of the provision helps to ensure that innocent communication will not be unintentionally captured by the Code . » [ 66 ] The evidence therefore needs to demonstrate beyond a reasonable doubt that the communication by the accused was intended to lead to an actual specified crime. [ 67 ] In this case, the communication ended at a very early stage. X reacted quickly to end the communication, being uncomfortable for reasons we can all understand.

She reacted in a way that every normal parent would want their child to react.

The Court can only commend her for reacting in such a way, and her parents for raising her to steer clear of danger. [ 68 ] The abrupt end of the conversation at such an early stage makes it difficult to conclude that the accused communicated with X in order to facilitate a crime of a sexual nature, the only question being asked that can lead to a conclusion that the accused was heading in that direction was the one relating to the child’s fantasies. [ 69 ] Let us remember that the Supreme Court recognizes that “the more remote an offence becomes from the actual infliction of harm, the higher the degree of fault necessary to justify criminalization.” [ 70 ] There is no dispute that the question the accused asked X does not constitute an offense under s. 152 of the Code .

The words he used cannot be analysed in a way to conclude that he was inviting X to engage in a sexual act of any nature. We can therefore conclude that the same question, asked face to face, without the use of a telecommunication device, would not have constituted a crime. [ 71 ] The fact that the communication doesn’t constitute by itself an underlying offense does not necessarily mean that the communication was not made in order to facilitate an underlying crime.

But the analysis of what was asked by the accused demonstrates that we are in that zone of words that are still remote to the actual infliction of harm, and therefore, the crown needs to demonstrate with a higher degree of certainty that the words were written with that specific intent. [ 72 ] The burden of evidence is always on the crown, and never shifts to the accused, even when his explanations are not believed. [ 73 ] The court would only theorize on the actual purpose of the accused following this question. If X had answered that she had fantasies, what would have happened then?

X is still today asking herself a lot of questions relating to what the intentions of the accused were. At the end of this trial, the Court had the same questions. [ 74 ] Every case is to be judge on its own merits. It may very well be that in other circumstances, the intent of an accused can be seen through the terms, sexual or not, used in the conversation. [ 75 ] But in the present case, although a close call, the evidence falls just short of demonstrating the specific intent of the accused to commit an underlying offense. FOR THESE REASONS, THE COURT:

[ 76 ] ACQUITS THE ACCUSED. __________________________________ JOEY DUBOIS, J.C.Q. Me Kim Émond Counsel for the Prosecution Me Marc Lavoie Counsel for the Accused Date of hearing : 10 janvier 2018