R. v. W., 2011 QCCA 655

Unofficial English Translation P.M. c. R. 2011 QCCA 655 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002284-086 200-10-002285-083 (110-01-007184-059) (110-01-007185-056) DATE: April 6, 2011 CORAM: THE HONOURABLE LORNE GIROUX, J.A. JEAN BOUCHARD, J.A. JACQUES VIENS, J.A. (AD HOC) P. M. APPELLANT – accused v.

HER MAJESTY THE QUEEN RESPONDENT – prosecutrix JUDGMENT [ 1 ] The appellant appeals from two guilty verdicts rendered on August 14, 2008, by the Court of Quebec, Criminal Division (the Honourable Judge Robert Sansfaçon). [ 2 ] The appellant was convicted of two counts of sexual interference with a person under the age of sixteen years (section 151 Cr. C. ) stemming from incidents involving two separate complainants that took place in August of 2001. A conditional stay of proceedings was ordered with regard to two counts of sexual assault (section 271(1)(

a) Cr. C. ). [ 3 ] The only witnesses heard at trial were the two complainants and the appellant. [ 4 ] The appellant submits first that the trial judge shifted the onus of proof onto to him, thereby departing from the approach favoured by the Supreme Court in R. v. W. (D.) . [1] [ 5 ] Specifically, relying on R. v.

C.L.Y. , [2] the appellant criticizes the trial judge for erroneously attributing to him the memory of details that were not in fact proved only to determine subsequently that he did not believe him. [3] The appellant lists four elements that were noted by the judge concerning one of the two incidents – that the appellant remembered the light in the room, that he remembered the age of the victim, that he brought her a blanket on the sofa where she was set to sleep, and that he spoke to her of her school.

He explains away these recollections as being the result of the complainant having slept at his place only once. [ 6 ] This ground is without merit.

The trial judge, who was aware of C.L.Y. , expressly warned himself of the danger of erroneously assessing the credibility of the accused in a situation such as the one before him where the accused offered a blanket denial of the charges: [translation] In the present case, his counsel criticizes the Crown for pointing out the fact that often, very often, when the accused is faced with a blanket denial in his defence, or a denial of the facts concerning the elements alleged against him and which constitute the basis of the offence, that if the accused remembers, he is criticized for having the memory of an elephant and that it makes no sense, if he remembers nothing, he is criticized for . . . and further on: [translation] What confuses me more, and therefore this is not an observation of the witness, and I stress this point again, it is not because the accused does not remember those elements.

That, whatever he does, as his counsel stated, that the Court, if he remembers too well, his memory is too good, if he doesn't remember, then he should. [ 7 ] Then, contrary to what happened in C.L.Y. , where the trial judge had criticized the appellant for remembering a "surprising amount of detail" surrounding the events, the judge first assessed the quality of the appellant's memory as against his testimony as a whole.

He then observed that the appellant [translation] "has shown us that he does not have an exceptional memory" and that, in fact, [translation] "he remembers very little". [ 8 ] It is only in comparison to this first observation that the judge was surprised that the appellant had nonetheless remembered small, insignificant details concerning an unremarkable evening during which nothing supposedly happened, according to the appellant’s recollection of the events giving rise to the charges. [ 9 ] Taking into account the fact that the trial took place eight years after the events and that nobody informed the appellant [translation] "in the ensuing days, weeks, or months that the events had occurred", the judge was justifiably surprised that he remembered details like where the complainants had been seated on the sofa, his changing seats after one of them got up to go to bed, where the one who stayed with him was sitting, the placement of his hand on the back of the sofa, the kind of pants she was wearing, and so on. [ 10 ] Thus, contrary to C.L.Y. , the judge's assessment of the appellant's testimony was evidence based. [4] [ 11 ] Furthermore, the judge did not rely solely on the extent of the appellant's memory to assess his credibility in the context of the process established in R. v.

W. (D.) , another significant distinction from the situation in C.L.Y.

He also noted the inconsistencies and implausibilities in his testimony and his actions, particularly as regards his emotional relationship with the complainant S.S. and the worries he allegedly expressed to her regarding her mother's potential concerns. [ 12 ] In his judgment, the trial judge correctly pointed out these implausabilities: [translation] And beyond that, and this brings us to the testimony disputing the representations of fact made by other witnesses, wherein, moreover, he indicates that, although he admits it, even though he is not the biological grandfather of X, the other victim, but he admits, indeed, that she did not have a grandfather, and after having spent some time with him, she asked him if she could call him "Grampa" and so on.

Thus, the relationship between the victim and himself, in fact, was assuredly not a relationship between strangers, and it is incredible to hear this accused tell us, in relation to this incident, that it had already been agreed that X would sleep on the sofa in the living room. But at some point he felt uncomfortable because if the girl's mother were to hear about it, then, well, there are many ideas that are extremely surprising.

The first, purely contextual, physical, in the sense that it had been agreed that she would sleep on the living room sofa and yet he decided to continue watching television thereby preventing her from sleeping on the sofa, which contradicts the fact that he told me he was concerned and worried about what the mother might say.

On that point, I find it very difficult to believe the accused with regard to this assertion and moreover, as she is not a stranger, as she considers him to be a "Grampa", as does everybody in their family circle (the same obviously can be said for the other victim, Y), he is the grandfather. Even S.S. at the beginning of her testimony indicated that he was a well-regarded grandfather as there had been no problems until the events of August 2001. Consequently, in that context, I repeat her words, she viewed him as a grandfather who was well-respected in City A at the time.

Therefore, how can a grandfather, in name if not in blood, tell me today that he was worried that the mother of this alleged victim might wonder why he was alone on the sofa with her daughter when it was late.

If he is a well-intentioned grandfather, as he was believed to be prior to August 2001, the accused's assertion of fact is extremely determinative in that his testimony is much more akin to a rebuttal of certain assertions of fact presented by the witnesses than a submission of credible evidence to the Court. and further on: [translation] He even mentions that the light in the living room was on, to return to the story of the sofa, the change of seats, and then he remembers saying to X: [translation] ... to go to bed because her mother would not be happy that she was alone with a man.

I do not want to repeat everything I said earlier but in my opinion this statement of the accused's makes no sense in relation to the incident adduced before the Court. [ 13 ] Consequently, the Court is of the opinion that the judge was correct to conclude that he did not believe the appellant's denial and that, in the context of the overall evidence, it was not such as to raise a reasonable doubt.

[ 14 ] The appellant's criticism that the trial judge erred in law by failing to take into account the evidence that was favourable to him is also without merit. [5] [ 15 ] In support of this ground of appeal, the appellant argues that the complainants’ testimony was vague and that it did not provide sufficient details of the appellant's sexual acts. [ 16 ] A reading of the evidence reveals that, on the contrary, the complainants’ testimony, while not very detailed, was sufficiently precise with regard to the essential elements of the offences alleged against the appellant. [ 17 ] The trial judge, who rendered judgment orally immediately following counsel’s closing arguments, was best placed to assess the complainants’ testimony, which was given eight years after the incidents occurred (they were aged 10 and 13 respectively at the time). [ 18 ] Having failed to demonstrate a palpable and overriding error in the assessment of the credibility assigned by the judge to the complainants’ testimony, the appellant's second ground must also be rejected.

FOR THESE REASONS, THE COURT: [ 19 ] DISMISSES the appeal. LORNE GIROUX, J.A. JEAN BOUCHARD, J.A. JACQUES VIENS, J.A. (AD HOC) Mtre Yves Desaulniers Desaulniers, Ouellet For the appellant Mtre Lili-Pierre Trottier-Lapointe Criminal and Penal prosecutor For the respondent Date of hearing: April 5, 2011