2011 QCCA 1116, 2011 QCCA 1116

Unofficial English Translation Foucault c. R. 2011 QCCA 1116 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002534-100 (410-01-017786-079) DATE: June 13, 2011 CORAM: THE HONOURABLE JULIE DUTIL, J.A. LORNE GIROUX, J.A. JEAN BOUCHARD, J.A. PIERRE FOUCAULT APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] The appellant, Pierre Foucault, appeals from a judgment of the Court of Quebec, Criminal and Penal Division, District of Saint- Maurice (the Honourable Judge Guy Lambert), rendered on June 8, 2010, which convicted him of the following charges: [translation] 1.

Between August 1, 2007, and August 13, 2007, at City A, District of Saint-Maurice, did, with the intent of harassing or recklessly as to whether they were harassed, engage in conduct toward J.T. and S.G. that is prohibited by subsection 264(2) of the Criminal Code , causing them reasonably to fear for their safety or the safety of anyone known to them, thereby committing an indictable offence under paragraph 264(1) (3)(

a) of the Criminal Code . 2. On or about August 12, 2007, at City A, District of Saint-Maurice, did knowingly utter threats to cause death or bodily harm to S. G., thereby committing an indictable offence under

section 264.1(1) ( a )(2)(

a) of the Criminal Code . 3. On or about August 12, 2007, at City A, District of Saint-Maurice, did knowingly utter threats to cause death or bodily harm to J. T., thereby committing an indictable offence under

section 264.1(1) ( a )(2)(

a) of the Criminal Code . [ 2 ] Mr. Foucault was tried on a total of ten counts. He was acquitted of the following: [translation] 4. On or about August 12, 2007, at City A, District of Saint-Maurice, did break into a dwelling-house situated at ..., with the intent of committing an indictable offence therein, thereby committing an indictable offence under section 348(1) ( a )(

d) of the Criminal Code . 5. Between August 1, 2007, and August 13, 2007, at City A, District of Saint-Maurice, without reasonable justification or excuse and with intent to obtain anything, by threats, accusations, menaces or violence did induce or attempt to induce S. G. to do something or cause something to be done, to wit: perform nude dances and pay him the profits thereof, thereby committing an indictable offence under section 346(1) (1.1)(

b) of the Criminal Code . 6. Between October 1, 2003, and August 1, 2007, at City B, District of Saint-Maurice, at City C, District of Joliette, and City D, District of Saguenay, did commit robbery against S. G., thereby committing an indictable offence under

section 344 (

b) of the Criminal Code . 7. Between October 1, 2003, and August 1, 2007, at City B, District of Saint-Maurice, at City C, District of Joliette, and at city D, District of Saguenay, did procure or attempt to procure a person to become a prostitute, thereby committing an indictable offence under section 212(1) (

d) of the Criminal Code . 8. Between October 1, 2003, and August 1, 2007, at City B, District of Saint-Maurice, at City C, District of Joliette, and at City D,

District of Saguenay, for the purposes of gain, did exercise control, direction or influence over the movements of S. G. in such manner as to show that he was aiding, abetting or compelling that person to engage in or carry on prostitution, thereby committing an indictable offence under section 212(1) (

h) of the Criminal Code . 9. Between October 1, 2003, and August 1, 2007, at City B, District of Saint-Maurice, at City C, District of Joliette, and at City D, District of Saguenay, did knowingly utter threats to cause death or bodily harm to S. G., thereby committing an indictable offence under paragraph 264.1(1) ( a )(2)(

a) of the Criminal Code . 10. Between October 1, 2003, and August 1, 2007, at City B, District of Saint-Maurice, at City C, District of Joliette, and at City D, District of Saguenay, without reasonable justification or excuse and with intent to obtain anything, by threats, accusations, menaces or violence, did induce or attempt to induce S. G. to do something or cause something to be done, to wit: perform nude dances and pay him the profits thereof, thereby committing an indictable offence under section 346(1) (1.1(

b) of the Criminal Code . the facts [ 3 ] Ms. S. G. and Mr. Foucault met on the Internet in August of 2002. After going out on a few dates, Ms. G. moved in with Mr. Foucault who was living with his mother, Ms. Isabelle Lafond. [ 4 ] The trial judge briefly summarized the facts relating to the period between 2002 and 2007: [translation] [9] The complainant suffers from mental health issues. She has been repeatedly hospitalized for attempting suicide and for food issues related to anorexia. [10] She registered for adult education and completed her last year of high school.

The couple seemed to live in harmony and travelled together. She sent a good number of love letters to the accused. [11] In 2004, Ms. G., who did not like her breasts, decided to undergo surgery to improve their appearance. According to the complainant, this operation was expensive, and to reimburse what the accused considered a loan, he forced her, with threats, to return to her previous occupation as a nude dancer. It was he who contacted the agencies, drove her to the bars, came to get her at the end of the night, and took all the money she earned. He followed her everywhere. He gave her no money.

In October of 2004, she went to live in an apartment in Area E, but stayed a short time only because she met a man through her workplace who took her to his home. This man was very much in love with her and spoiled her. The relationship lasted only a few months because the accused continued to harass her. [12] After the break-up, she was hospitalized for a while. Afterwards, she went back to the accused and continued to dance in bars. [13] There, she met J. T. and went to live with him in the area of City A. Mr. Foucault continued to harass her and to utter threats against her new spouse.

A complaint was filed in August of 2007. [14] Mr. Foucault states that Ms. G. was his first girlfriend. He was deeply in love and did everything he could to help her. He gave her many gifts and his mother took pity on her and treated her like a daughter. Today, he sees that he was manipulated. He denies forcing her to do anything. He visited her at her behest and submits that he was never violent toward Mr. T. [ 5 ] In August of 2007, Ms. G. was living with J. T. in City A. On August 12, Mr. Foucault went to Mr. T's apartment. The events that unfolded there are the subject of two contradictory versions. [ 6 ] Mr.

T. explained that during his visit, Mr. Foucault criticized him because Ms. G. no longer danced in bars. Mr. T. answered that he was jealous and did not want her to work anymore. This is when Mr. Foucault uttered threats. He said that he would meet a [translation] "bullet" if he meddled. He also mentioned the names of Jocelyn Guay, who would do the deed, and Francis Boucher, Mom Boucher's son. As for Ms. G., she would end up in the river. [ 7 ] Ms. G. said that when she told Mr. Foucault that she would no longer be dancing in bars, around April of 2007, he became incredibly aggressive. On August 12, 2007, Mr.

Foucault told her that he had [translation] "sold his debt to Mom Boucher's son, Francis Boucher" and that her [translation] "hole had already been dug". She also stated that Mr. Foucault threatened Mr. T. by telling him that he would [translation] "get a bullet to the brain" and asking him if he knew Jocelyn Guay. [ 8 ] Mr. Foucault, however, has a very different version of the facts related to the events of August 12, 2007. He drove to Mr. T.'s home on his motorcycle. He wanted to take Ms.

G. to dinner at the Le Concorde hotel in Quebec City, as he did every year, to celebrate the anniversary of their first date. [ 9 ] Mr. T., angry and yelling, objected to Ms. G. going with Mr. Foucault. Mr. Foucault left the premises, but came back near the patio door to ask Ms. G. if she was okay. Mr. T. then told him to [translation] "get the hell out", which he did calmly and without raising his voice. [ 10 ] Ms. D., Mr. T.'s neighbour, went to his apartment at dinnertime and, while she was near the window, she heard a loud, upsetting voice.

She was uncomfortable, but nevertheless knocked on the door and went into the apartment. She saw the appellant and sensed that tensions were running high. She left almost immediately. [ 11 ] A half-hour later, Ms. D. went outside. She saw the appellant on his motorcycle and heard him hurling insults at Mr. T. It is noteworthy that these were not the threats that are the subject of the charges. She went to get Mr. T.'s little boy, to get him away from the

premises. Trial Judgment [ 12 ] The trial judge first explained that the trial, which had been scheduled for half a day, required six days of hearings between January 20, 2009, and February 22, 2010, because of the obligations of all the parties and their counsel. [ 13 ] He then meticulously summarized the evidence heard and outlined the theory advanced by the Crown followed by that advanced by the defence. [ 14 ] With regard to counts 5, 6, 7, 8, 9, and 10, the judge considered that the testimony of Ms.

G. was not sufficiently reliable, in light of the overall evidence, to support a guilty verdict, and he acquitted Mr. Foucault. The judge also acquitted Mr. Foucault on count 4, [1] but convicted him on counts 1, 2, and 3, saying the following: [translation] [197] There only remains the incident of August 12, 2007, to address. Ms. G. was living with Mr. J. T. at the time, although she continued to be in touch with the accused and his mother. [198] Mr. T. did not want her dancing anymore and he informed the accused of that fact. The accused felt that he was losing the love of Ms. G. and continued to go see her.

He often showed up at the City A residence. Obviously, over time, Mr. T. became annoyed by this situation and tensions rose on August 12, 2007. [199] I must say that I do not believe the version of events given by the accused. He says that he never raised his voice, that he remained calm at all times, and that it was Mr. T. who threatened him. It was heavy-handed of him to speak disparagingly of Ms. D., stating that she wasn't present and that she was a drug dealer. The Court believes her testimony. Seeing what was unfolding, she decided to remove the little boy from the house so he would not be traumatized.

I believe her when she says that it was the accused who raised his voice. [200] Also, I find it deplorable that, to get out of trouble, he launched an all-out attack on the reputation of a police officer, as well as on that of Mr. T., by stating, with no evidence backing him up, that Mr. T. was a drug dealer. As I was saying earlier in this judgment, this part of the accused's testimony is pure storytelling. [201] Admittedly, Ms. G. was trying to have it both ways, but the accused's conduct toward Mr. T. was inappropriate. [202] It remains to be determined whether the testimonies of Mr. T., Ms. G., and Ms.

D. constitute evidence beyond a reasonable doubt of the accused's guilt on counts 1, 2, and 3 of uttering threats. [203] After having listened closely to their testimony, I am convinced that Mr. T. is telling the truth when he says that the accused threatened him and Ms. G. with death by telling him that his brother had contacts within criminal biker gangs, he would end up in the river, S. would get a bullet through the brain, and Jocelyn Guy would get the job done. Ms. G. corroborated this point. Ms. D. did not hear the words, but asserts that there was an ugly tone to the discussion. [204] Mr.

Foucault is therefore found guilty of counts 1, 2, and 3 but acquitted of count 4, there being no evidence that he broke into Mr. T.'s residence. analysis [ 15 ] The respondent concedes that the evidence does not support a conviction on the first count. [ 16 ] As to counts 2 and 3, the judge stated that he did not believe the appellant with respect to the events that took place on August 12, 2007, and convicted him. He immediately went to the third step and asked himself whether the evidence adduced by the Crown indicated guilt beyond a reasonable doubt.

The Court is of the view that by doing so, the judge did not follow the teachings of the Supreme Court in R. v. W. (D.) , [2] as to reasonable doubt of the appellant's guilt. These are the suggested steps: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [3] [ 17 ] Recently, in R. v. Szczerbaniwicz , [4] the Supreme Court restated that it is the substance of the test in R. v. W.(D.) that must be respected, "not its literal tripartite incarnation".

In this case, however, it is impossible to conclude that the judge completed the second step and answered "the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt". [5] [ 18 ] In the present case, the evidence as a whole, which brought about the appellant's acquittal on ten counts, in part because the judge believed him on several points and did not assign any credibility to Ms. G., should have led the judge to ask whether it had, at the very least, raised a reasonable doubt as to counts 2 and 3.

Indeed, the judge was conscious of having contradictory evidence before him for he stated: [translation] [176] After having analyzed all the evidence, the Court realizes that it is not light work to sort through the facts that have have been

presented. I must be very prudent before drawing any conclusions regarding the reliability to be assigned to each testimony. [ 19 ] In these circumstances, even if he did not believe the appellant regarding the events of August 12, 2007, the judge should have clearly explained the reasons why his version did not raise a reasonable doubt. FOR THESE REASONS, THE COURT: [ 20 ] ALLOWS the appeal; [ 21 ] ACQUITS the appellant on the first count; [ 22 ] ORDERS a new trial on counts 2 and 3. JULIE DUTIL, J.A. LORNE GIROUX, J.A. JEAN BOUCHARD, J.A.

Mtre Alain Dumas Dumas, Gagné For the appellant Mtre Jean-François Bouvette Criminal and penal prosecutor For the respondent Date of hearing: June 8, 2011