2014 QCCA 135, 2014 QCCA 135

Unofficial English Translation Ouellet c. R. 2014 QCCA 135 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004610-109 and 500-10-004770-101 (765-01-018586-087) DATE: JANUARY 27, 2014 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. ALLAN R. HILTON, J.A. JULIE DUTIL, J.A. JEAN-CLAUDE OUELLET APPELANT – accused v. HER MAJESTY THE QUEEN RESPONDENT – prosecutrix JUDGMENT [ 1 ] On appeal from a judgment of the Court of Quebec, District of Richelieu (the Honourable Judge Denys Noë

l) rendered on February 25, 2010, convicting the appellant on charges of sexual assault, forcible confinement, and assault causing bodily harm and on appeal from a judgment rendered by this same judge on August 31, 2010, sentencing the appellant to eighteen months’ imprisonment on each of the three counts, to be served concurrently, and a three-year probation order. [ 2 ] For the reasons of Chamberland, J.A., with which Hilton and Dutil, JJ.A. agree, THE COURT : [ 3 ] DISMISSES the appeal from the conviction; [ 4 ] ALLOWS the motion for leave to appeal the sentence; [ 5 ] ALLOWS the appeal from the sentence in part; [ 6 ] SETS ASIDE the decision on the 18-month term of imprisonment, and SUBSTITUTES in its place: - On the counts of assault causing bodily harm (count No. 1) and sexual assault (count No. 2) a 90-day term of imprisonment, to be served intermittently over 45 consecutive weekends, as of February 7, 2014; and - On the count of forcible confinement (count No. 3), a conditional sentence of 45 weeks, as of February 7, 2014, on the following conditions:

A) Preliminary condition : 1. Meet with the supervisor within 48 hours of this judgment to sign the declaration that he has read this order and received explanations on how to request a variance of the optional conditions of the order and the steps that could be taken if he fails to comply with the conditions of the order (sections 742.3, 742.4, and 742.6 Cr. C. ).

B) Conditions in effect for the duration of the sentence : 2. Keep the peace and be of good behaviour; 3. Appear before the court when required to do so by the court; 4. Report to a supervisor when required to do so; 5. Remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the court or the supervisor; and

6. Stay at ..., Varennes, Quebec and notify the Court or the supervisor in advance of any change of name or address, and notify them of any change of employment or occupation. 7. Continue and complete the emotional management therapy that he has begun with a psychologist that is a member of the Ordre des psychologues du Québec. 8.

Refrain from possessing, bearing, and acquiring, in any capacity whatsoever, an offensive or restricted weapon, or any imitation thereof, including a start gun, air pistol, firearm, crossbow, prohibited ammunition or explosive materials, knives (except in restaurants or for a legitimate purpose) and bladed weapons; 9. Comply with all the instructions of the supervisor respecting the application of the order, including those respecting a review of the conditions, and comply with any agreement entered into with the supervisor.

C) Conditions in effect for the first 25 weeks of the sentence : 10. Be at home 24 hours a day, except for the following reasons: ▪ with the written permission of the supervisor; ▪ for the purpose of lawful employment; ▪ for the purpose of religious worship; ▪ to meet with his supervisor or any other worker identified by his supervisor; ▪ for medical or emergency health reasons, including to buy medications; ▪ to buy food, but no later than 8:00 p.m.

D) Conditions in effect for the remaining 20 weeks of the sentence : 11.

Be at home between 9:00 p.m. and 6:00 a.m., except for the following reasons: ▪ with the written permission of the supervisor; ▪ for the purpose of lawful employment; ▪ for the purpose of religious worship; ▪ to meet with his supervisor or any other worker identified by his supervisor; ▪ for medical or emergency health reasons, including to buy medications; [ 7 ] The conditions of the suspended sentence will not apply while the appellant is in detention. [ 8 ] The other conclusions of the judgment under appeal remain unchanged, including that regarding the three-year probation order. JACQUES CHAMBERLAND, J.A.

ALLAN R. HILTON, J.A. JULIE DUTIL, J.A. Mtre Christian Desrosiers DESROSIERS JONCAS MASSICOTTE For the appellant Mtre Magalie Cimon DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the respondent Date of hearing: November 26, 2013 REASONS OF CHAMBERLAND, J.A.

[ 9 ] On February 25, 2010, the appellant was convicted on three counts: sexual assault (paragraph 271(1)(

a) Cr. C. ), forcible confinement (paragraph 279(2)(

a) Cr. C. , and assault causing bodily harm (paragraph 267(

b) Cr. C. On August, 31, 2010, he was sentenced to an eighteen-month term of imprisonment on each of the three counts, to be served concurrently, and a three-year probation order. [ 10 ] The appellant appeals from the conviction and the sentence. [ 11 ] For the following reasons, I would dismiss the appeal from the conviction and allow the appeal from the sentence to substitute in its place a sentence that, in my view, and I say this with great respect for the trial judge, better reflects the principle of proportionality set out under

section 718.1 Cr. C . Conviction: [ 12 ] Before considering the grounds of appeal submitted by the appellant, I will summarize the events that took place on August 31, 2008, by relating the facts that were not contested and, where the facts are inconsistent, I will relate the complainant's version since the judge concluded that the appellant's testimony was neither reliable nor credible whereas the complainant's was. [ 13 ] The appellant and the complainant were a couple for about fifteen years, from 1993 to 2008. They ended their relationship in February of 2008.

They reconciled and separated again a few times over the course of that year. [ 14 ] When the complainant met someone new, the appellant did not take it well. He started harassing her. [ 15 ] In August of 2008, the appellant got in touch with the complainant and suggested that they spend the long weekend in Cape Cod. The complainant agreed. She explained that she cared for the appellant and was touched by his distress, but she recognized at trial that it was a mistake for her to have agreed to go. [ 16 ] The trip did not bring the former lovers closer.

The appellant asked her to have sexual intercourse, but the complainant refused. She explained that she was not ready. The appellant respected her decision. [ 17 ] They returned to Canada on August 31, 1998, which was a Sunday. On the way, the appellant received a phone call from the complainant's new boyfriend. This infuriated him and he became aggressive. [ 18 ] On their return to the appellant's house, the complainant first went to the bathroom. She then wanted to retrieve her voice mail from the home's land line, but noticed that the appellant had put the telephone in a cupboard.

The complainant then went upstairs to read her email on the appellant's computer. He watched her and asked to read her email. She refused. [ 19 ] The complainant returned to the ground floor. At that point, the appellant punched her squarely on the left side of the head and following it up with several more punches. The complainant fell. The appellant immediately grabbed a (blue) rope that was nearby and tried to tie up the complainant. He was unable to because she fought back. According to the complainant, he then grabbed a coat and pressed it against the complainant's face to suffocate her.

He was unsuccessful because the complainant managed to push the coat aside. The appellant then shoved his thumb down her throat. The complainant thought she was going to die, especially since the appellant was telling her that, given everything that he had just done to her, he could not let her go or she would file a complaint. [ 20 ] The appellant wanted to make love. The complainant did not want to. She was afraid, but she nevertheless followed him upstairs.

She went to the bathroom to drink a glass of water and then told him that she would prefer it if they went to the living room sofa on the main floor, which they did. They undressed. Fellatio and penetration ensued. [ 21 ] The appellant found the position in which they were making love uncomfortable, and he stood up. The complainant took the opportunity to flee. She broke through the patio screen door at the back of the house. She fell and then cried for help. The appellant brought her back inside forcibly. He lay her on the ground and, according to the complainant, once again tried to suffocate her.

He repeated that he could not let her leave. The time was 5:25 p.m. [ 22 ] Things began to calm down somewhat and at that point the police officers arrived. The complainant, still naked, ran to them. She told them that the appellant was crazy and that he wanted to kill her. [ 23 ] The appellant was arrested at 5:38 p.m. He was subsequently charged with the three offences referred to at the beginning of this judgment. [ 24 ] Almost a year later, on July 7, 2008, the complainant telephoned the appellant. He told her that he did not know what had come over him. He apologized for hitting her in the face.

He told her that he would plead guilty to the charge of assault but not the two other charges. She told him that she was not angry with him, but that they were now caught in the wheels of justice. [ 25 ] The appellant submits eight grounds: A. The trial judge erred by unduly limiting the complainant's cross-examination and seeming to favour her version, raising a reasonable apprehension of bias. B. The trial judge erred in law in his credibility analysis by, inter alia , weighing the appellant's credibility against the complainant's version, which led him to choose between the two versions. C.

The trial judge erred in law by imposing on him the burden of proving his own innocence. D. The trial judge erred in law by allowing him to be cross-examined on the veracity or content of other testimonies presented by the prosecution.

E. The trial judge erred in law by finding that the complainant's behaviour following the police officers’ arrival corroborated sexualassault because his conduct is not independent evidence. F. The trial judge erred in law in his

interpretation of paragraphs 273.2(

a) and (

b) Cr. C. regarding belief in the complainant'sconsent. G. The trial judge erred in fact and law in his analysis of the complainant's credibility by failing to consider all the evidencerespecting contradictions, inconsistencies, and improbabilities. H. The trial judge erred in fact and law in assessing the appellant's credibility against the behaviour of a normal person as defined bythe court. [26] In his written and oral arguments, the appellant grouped grounds of appeal B, C, G, and H together. [27] He does not contest the conviction on the charge of assault.

A reasonable apprehension of bias (ground of appeal A) [28] The appellant faults the judge for unduly limiting his cross-examination of the complainant and displaying a bias toward herversion.

The argument is based on various incidents that occurred at trial: ▪ while the complainant was still being cross-examined, the judge intervened to tell counsel for the appellant that his questions were awaste of time; in the appellant’s view, the judge thereby proved, that he did not grasp the role of cross-examination in a file where hisversion and the complainant’s were at odds; ▪ The judge worried for no reason about the fact that the appellant's daughter was taking notes; ▪ The judge erroneously criticized counsel for the appellant for his [translation] "habit" of interrupting the witness; ▪ The judge erroneously prohibited counsel for the appellant from cross-examining the complainant using notes taken by the nursewhen the complainant arrived at the hospital.

These notes were included in the medical record that was filed by consent; ▪ While the appellant was still being cross-examined, the judge implied that he did not believe his version. [29] The most significant incident is certainly the first. The judge's comment that the cross-examination was, at that precise moment,a waste of time was impolitic and unsettling to counsel. In fact, the incident gave rise to a motion for recusal, which the judge dismissedfrom the bench.

He used that opportunity to explain what had led him to make his comment: counsel had been intent on asking a series ofquestions regarding the unfolding of events that was based on a version (the appellant'

s) that the witness soundly rejected, leading her toanswer each question negatively. The judge took pains to state that he nevertheless had not made up his mind about the complainant'scredibility. He invited counsel to continue his cross-examination, which he did by leading with the same questions that had prompted thejudge's comment. [30] The judge's comment was impolitic, but I cannot see it as indicating a reasonable apprehension of bias on his part. It was, in myview, an inconsequential incident.

Counsel was right to raise the issue, which gave the judge the opportunity to explain himself in hisruling on the motion for recusal. [31] In Lyttle,[1] the Supreme Court points out the delicate balance between protecting the right to cross-examine and protecting awitness who is being abusively cross-examined: [44] The right of cross-examination must therefore be jealously protected and broadly construed. But it must not be abused.

Counsel arebound by the rules of relevancy and barred from resorting to harassment, misrepresentation, repetitiousness or, more generally, fromputting questions whose prejudicial effect outweighs their probative value. See R. v. Meddoui, (SCC), [1991] 3 S.C.R.320; R. v. Logiacco, (1984), (ON CA), 11 C.C.C. (3d) 374 (Ont. C.A.); R. v. McLaughlin (1974), (ON CA), 15 C.C.C. (2d) 562 (Ont. C.A.); Osolin, supra. [32] In this case, the judge's comments were not intended to cut the cross-examination short but to redirect it toward more usefulquestions.

Certainly, it was a chilling effect on counsel for the appellant, at least momentarily, but it seems obvious that it did not affectthe just and equitable unfolding of the trial. [33] The appellant faults the judge for worrying about the fact that his daughter was taking notes at trial. He sees this as anothersign of the judge's bias against him. The criticism is entirely without merit and, in my view, rather far-fetched. [34] The incident occurred as the complainant's testimony resumed late in the morning on the first day of the trial, at the verybeginning of her cross-examination.

Counsel for the appellant asked the judge if he would allow his client's daughter to take notes. Therethen followed a short conversation after which the judge said that he was not [translation] "opposed to the taking of notes" insofar aseveryone understood that there was an order excluding witnesses, to which counsel responded that he was right and that [translation] "itwould be subject to this order".

That is all it was. [35] I do not see how it can be argued that this incident can in any way ground a conclusion that there was a reasonable apprehensionof bias on the part of the judge. [36] The next criticism is cast in the same mould. A reading of the pages of the transcript leading up to where the judge told counselthat he habitually interrupted the witness is sufficient to convince us the judge was correct. Counsel has the right to cross-examine thewitness, but the witness has the right to give a full answer to a question that she is asked.

[ 37 ] During his cross-examination, counsel for the appellant tried to get the complainant to contradict her comments to the duty nurse, which the nurse had recorded in the hospital's medical file. The appellant argues that the judge objected to this way of proceeding on his own initiative on the grounds that it was not a signed statement. The appellant sees this as an error of law and another reason to fear the judge's bias. [ 38 ] In my opinion, there is neither an error of law nor any sign of bias whatsoever.

The appellant is correct to state that he has the right to cross-examine the complainant on the basis of an oral statement. The judge held the same view, in fact; his intervention did not concern the right to cross-examination at all, but rather aimed to ensure compliance with the rules of evidence governing how this prior oral statement and the notes proving it were to be adduced.

The judge wanted to ensure that the complainant fully understood that the notes to which counsel was referring were those of the nurse, who would be called as a witness if the complainant denied the accuracy of the notes she had taken at the hospital. The appellant is wrong to see this as a prohibition from proceeding with the cross-examination using these notes. I see nothing unusual or suspicious in the way the judge managed this part of the cross-examination. [ 39 ] The last element listed by the appellant to explain his reasonable apprehension of bias does not, in my view, have any more merit than the last.

The appellant faults the judge for intervening throughout his cross-examination in support of the Crown's position and cross-examining him on his memory. With respect, I have read and re-read the appellant's cross-examination and cannot see anything irregular. In fact, when the judge intervened, it was generally to side with counsel for the appellant. As for the few questions that he asked, they fall largely within his role in the context of an adversarial process. [ 40 ] In closing on this issue, I point out that a reading of the whole transcript leaves no doubt as to the judge's impartiality.

In fact, on several occasions he intervened with Crown counsel to ensure the fairness of the trial. [ 41 ] No trial is perfect. Such is the very nature of human justice. A judge may err during an intervention and may sometimes even become impatient with a litigator or witness without raising a reasonable fear of bias. To argue that a judge's work raises a reasonable apprehension of bias is a very serious allegation [2] that must be assessed against the overall behaviour of the judge in the context of the entire trial. In this case, I am of the view that the criticism is clearly without merit.

Analysis of credibility (grounds of appeal B, C, G, and H) [ 42 ] The judge allegedly erred in assessing the appellant's credibility by systematically contrasting his own version of events with that of the complainant, which led him to choose between two inconsistent versions. He allegedly also erred by imposing on the appellant the burden of showing that the testimonies contradicting his own should not be accepted, which was tantamount to requiring him to prove his own innocence.

Finally, the judge allegedly erred by failing to give adequate reasons for finding that the appellant's testimony was not believable, or at least why the appellant did not raise a reasonable doubt in his mind whereas, when he analyzed the complainant's credibility, he did not consider the contradictions, inconsistencies and improbabilities peppering her testimony, which is conduct constituting additional proof of his bias. [ 43 ] In my opinion, this criticism is without merit. It is based, first, on a one-dimensional reading of the judgment and second, on an erroneous understanding of what a judgment is.

The judge is criticized for beginning his judgment by giving his opinion on the appellant's credibility rather than doing so at the tail end of his analysis, as if the judgment had to chronologically track the judge's thought process. It must be remembered that, when the judge drafted his judgment, he had already heard and read all of the evidence, had necessarily weighed the appellant's testimony against the overall evidence, and thought about his judgment and how he would word it. [3] [ 44 ] The judge had before him two diametrically opposed versions.

When the appellant stated that they had a nice trip and that they were both very much in love, the complainant denied it. When the appellant stated that, upon their return from Cape Cod, the complainant had agreed to live with him, she denied it. When the appellant stated that he slapped the complainant in the face in response to her hitting him, she denied it and claimed to have been punched in the head (not slapped).

When the appellant stated that the complainant agreed to have sexual intercourse with him, she denied it, claiming that she was scared and that she pretended to accept to avoid the worst, and so on. [ 45 ] The judge correctly referred to the teachings in R. v. W. (D.) [4] to analyze the evidence: 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. [ 46 ] The accused must be acquitted if the judge believes him or if he does not believe him but his testimony raises a reasonable doubt in his mind. [ 47 ] It is inappropriate to set up a credibility contest between the versions and to dismiss that of the accused solely because the victim's version is believed. [5] [ 48 ] That being the case, assessing the credibility of a witness "is not a science".

It [ translation ] "often comes down to small details" which are not always easy for the trial judge to describe in the judgment, despite his privileged position compared to the appellate judge: [20] Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.

That is why this Court decided, most recently in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected. [6]

[ translation ] [69] Assessing the credibility of a witness often comes down to small details relating to the witness's speech (contradictions, inconsistencies, memory blanks), or non-verbal behaviour (tone of voice, body movements, face). It is not easy to know whether a person is lying or telling the truth. [7] [ 49 ] In this case, with respect for the contrary opinion, it appears that the judge correctly applied the analytical approach set forth by this country's highest court.

He explained at length why he did not believe the appellant and why, while not believing him, his testimony also failed to raise a reasonable doubt in his mind. All the elements accepted by the judge were not of equal value or even of equal precision, but overall, they were sufficiently solid to ground his conclusion and to allow the appellant to understand why he was not believed. [ 50 ] When the reasons are considered as a whole, I do not think that the judge erred by choosing one version – the complainant's – over the other – the appellant's.

It is clear, however, that after completing his analysis of the two testimonies, he gave much more credibility to the complainant's testimony than to the appellant's. This is not in itself an error. [ 51 ] I have read and re-read the judgment a quo in light of the appellant's arguments, and I cannot find anything that justifies finding that the judge imposed any burden on the appellant whatsoever, much less that of proving his innocence.

On the contrary, his comments show that he had a keen understanding of the applicable burden of proof: [ translation ] [53] So, in applying these principles, the Court must reconcile the issue of the contradictory versions with that of reasonable doubt to answer the ultimate question of whether the Crown has proved, beyond any reasonable doubt, the guilt of the accused. [8] [ 52 ] The fact that the judge compared the behaviour of the appellant when the police officers arrived to that of a normal person [9] does not, in my view, constitute an error justifying the intervention of this Court.

This comment was made in consideration of the seriousness of the moment and the judge’s opinion that the appellant’s actions before the police officers were incriminating in that he tried, while still naked, to coil the rope that the complainant alleges he had used to tie her up. [ 53 ] The appellant laments the fact that the judge failed to take into consideration the various contradictions, inconsistencies, and improbabilities peppering the complainant's testimony to assess its credibility. [ 54 ] A reading of the judgment does not reveal such a failure at all, in my view.

The judge first explained that the fact the complainant adopted an inconsistent position by agreeing to see the appellant even though she stated that she was afraid of him does not affect her credibility because the complainant and the appellant are emotionally co-dependant, [10] having lived together for a long time and gone through several separations and reconciliations over the years. He then addressed the so-called inconsistencies between the complainant's testimony on the one hand and the conclusion in the medical report and the testimonies of the neighbours on the other.

He did not find any inconsistencies on the essential facts; there were at most differences in how events were perceived, which did not, in his view have an impact on the complainant's credibility. [11] Similarly, the judge found that the fact that the complainant laughed and smiled during her meeting with the nurse in the hospital did not affect her credibility, nor did her telling the nurse that she was hesitant to file a complaint for sexual assault.

He expressed his findings clearly and at length in the judgment. [12] The reasoning is well thought out and I fail to see anything wrong with it. [ 55 ] The judge ultimately concluded that the complainant was sincere and that her testimony was free of exaggeration, [13] marked by sincerity [14] and honesty [15] , and was credible and reliable. [16] Again, I see nothing wrong with this. This ground of appeal must therefore fail.

Appellant's cross-examination on the veracity of the other testimonies (ground of appeal D) [ 56 ] During cross-examination, counsel is prohibited from asking the accused's opinion on the veracity of the comments made by other witnesses. Authors Béliveau and Vauclair describe the rule and its reason for being: [17] [ translation ] 1347.

At the outset, it bears saying that cross-examining a witness on a statement provided by another person or asking the accused to comment on that other person’s credibility or explain why his accusers might be lying to the Court is clearly prohibited; in practice, this would entail obliging the accused to prove that they were wrong. ... [Citations omitted.] [ 57 ] The appellant maintains that the overall objective of his cross-examination was to have him explain the versions of the other witnesses or to justify what they had said, which he alleges affected the fairness of the trial. [ 58 ] With respect, in my view, this criticism is without merit. [ 59 ] The argument is essentially based on six excerpts from the cross-examination.

This is the first: [ translation ] Q. [250] If I told you that the tenant was coming here to the Longueuil Courthouse... A. Sorel. Q. [251] ... sorry, the Sorel Courthouse, and that they were coming here to testify before the Judge, to say that, at the time, you

were very upset when you arrived, and very, then you were insistent, then... A. No problem. [ 60 ] The tenants to whom counsel refers are a couple of French doctors who rent an apartment in the building owned by the complainant on Street A, City A. When the complainant left on a trip with her new boyfriend, the appellant saw one of the tenants in question (whom he knew) in the building's driveway and stopped to talk to him. Counsel's questions referred to this chance meeting. [ 61 ] I do not believe that, in this context, the excerpt poses any problems whatsoever. First, the tenants never came to testify.

The problem, if there is one, is therefore rather theoretical. Second, the actual relevance of the fact that the appellant was upset, impatient, or insistent during this short meeting might in fact be a matter for consideration. [ 62 ] The second excerpt: [ translation ] Q. [447] Okay. So, you, what A. said, she went to the bathroom, well, whether or not you know about this, but you know, she went to the kitchen, and then she wanted to take the phone from its base, but couldn't find it, so then she asked you: Where's the phone? And then you gave it to her, because it was in the cupboard. A. No.

Q. [448] Is this a fabrication on her part? Mtre ROBERT BELLEFEUILLE: I am going to object. The witness cannot state that it is a fabrication. He can state that it is false, but he cannot qualify, I mean, I would argue. Mtre NANCY DELORME: That was my question. THE COURT: Well, then restate the question. Mtre ROBERT BELLEFEUILLE: That's right. Mtre NANCY DELORME: Q. [449] So it's false? A. is wrong? A. It’s false. Q. [450] Okay. So that part of the story, it didn't happen, is that right? A.

That’s right. [ 63 ] The question here concerning whether the complainant's version was [ translation ] "a fabrication on her part" was clearly inappropriate. Counsel for the defence quickly objected and the judge sided with him and required Crown counsel to restate her question, which she did on the spot. In this context, it is difficult to see how the fairness of the trial might have been affected. [ 64 ] The third excerpt: [ translation ] Well, things settled down, and then I was completely messed up. It was even worse. I was stunned. I couldn’t process everything that had just happened.

Q. [836] So how do you explain that the neighbour, Mr. Letwin, said that he saw, he recognized you on sight? A. Yes, yes, yes. Yes, yes. Q. [837] It was not a silhouette, he knew that it was you? A. Yes, yes. Yes. Q. [838] Then, what he saw, it was a man, you know by the torso, like... Mtre ROBERT BELLEFEUILLE: Your Honour, I am going to object to the question. Mr. Ouellet cannot comment the neighbour's testimony. He cannot, we cannot ask a witness to say: How do you explain this? That is not his role. He can establish a fact, he cannot explain why...

THE COURT: Ask him if he agrees with the version of, it comes down to the same. Mtre NANCY DELORME: Q. [839] That's what it was. I didn’t go about it the right way. Do you agree with Mr. Letwin, who told the Judge during his testimony that he saw you, at that point in the incident, naked, facing Ms. L., who was also naked, going toward her like, and he even mimed it, you were in the room? A. Yes. Q. [840] Then, he like, with, in a certain way, he mimed, he sort of like showed that, and he even said it, with the chest, the torso, as if moving toward Ms. L., toward the complainant, he said. A. I don’t know.

It happened so fast. Q. If that is what he saw, well, I... Q. [841] No, but, you do not have any explanations? A. No. [ 65 ] Once again, the question asking the accused to explain why the neighbour, Letwin, might have said what he said was inappropriate.

But counsel for the appellant once again objected and the judge immediately asked the prosecutor to restate her question, which she did while acknowledging that the initial wording was clumsy. [ 66 ] The fourth excerpt: [ translation ] Q. [963] Were you more surprised to see the police than you were that A. took off like the wind, completely naked, toward the patio door and smashed through the screen? What surprised you more? A. Both situations. Q. [964] But, more so the police? A. Both situations.

Q. [965] If I were to tell you that it was more the police, because that is the effect the police have, that it was the presence of the police that made you lose your memory... A. It's... Q. [966] ... that put you in a state of shock? A. It's all of it. The patio door surprised me a lot. I was completely... Q. [967] Were you a little surprised in December of two thousand and nine (2009), having now heard the reason directly from A., why she took off running? Of course, you knew it because you read her deposition, but it generally has a bit more punch when you hear it in person. Are you still as surprised? A.

Oh, I uh, I didn’t really see it that way. I've known A. for fourteen (14) years. If, I always told myself: If she hadn't wanted to, she would have said so. [ 67 ] The problematic question, according to the appellant, is the one asking him whether he was [ translation ] "surprised" by the reason given by the complainant for fleeing and crashing through the patio screen door (question [967]). In my opinion, the question was not problematic. Incidentally, counsel for the appellant did not object to it at trial.

Furthermore, it allowed the appellant to express his present-day astonishment in relation to his perception of events at the time. [ 68 ] The fifth and sixth excerpts: [ translation ] Q. [972] Do you find that, she told the Judge that she was in survival mode, and that she was afraid of you, and that was why she ran through the screen like some crazy person, and screamed: "Help", hoping someone would hear her. Do you find... A. I never felt that. Q. [973] I just want, just let me ask the question.

That is what she said, she gave more detail than that, don't you find, in this explanation, a reason for, a logical reason for why she took off running? A. I still can't explain it. Q. [974] Does it make sense, what she told us, in your opinion?

A. In my opinion, no. Q. [975] You were there. A. It makes no sense. We were in the same house, I would never have held her back...forcibly. Also, I would not have made love with A.… without her consent. ... ... [1092] So, even after hearing A’s testimony yesterday, we, you don’t understand, you cannot explain? A. No. Q. [1093] Really? You have no explanation whatsoever? A. No. [ 69 ] The questions asking the appellant whether the complainant's version was [ translation ] "logical" or [ translation ] "[made] sense" or whether he [ translation ] "[had] an explanation" were inappropriate.

That being said, I do not believe that the appellant suffered any harm whatsoever as a result. [ 70 ] I would therefore dismiss this ground of appeal. Corroboration (ground of appeal E) [ 71 ] The trial judge wrote: [18] [ translation ] [92] Her testimony is confirmed and corroborated by the exhibits filed under P-2 and P-3 and by the testimony of the neighbours and police officers. [93] Her attitude when the police officers came on the scene confirms that a traumatic event that could not be made up had just occurred, whereas the accused's attitude was inconsistent with the overall evidence.

It should be recalled that he had a semi-erection, was naked in front of the police officers, and was acting calm and nonchalant, as though nothing had happened. The screen door was broken, and he was seen grabbing the complainant to force her into the house. She came out naked in front of the police officers and did not react. [ 72 ] Exhibit P-2 is an album of photographs, including almost 20 photographs of the complainant taken at the hospital in the hours following the events.

Exhibit P-3 is the complainant's medical record, opened when she was admitted in the emergency room of the Pierre-Boucher Hospital on August 31, 2008, at 6:25 p.m. The two exhibits were filed by consent during the testimony of the complainant. [ 73 ] The appellant argues that the judge was wrong to rely on the complainant's behaviour when the police officers arrived on the scene to support his idea that her version was credible and she had indeed been the victim of an assault.

He maintains that the complainant cannot corroborate herself through her words or actions. [ 74 ] The argument is without merit, in my view. Admittedly, because a person [ translation ] "shows behaviour that is consistent with that of a victim" (if she files a complaint quickly, for example), it does not necessarily follow that [ translation ] "we must conclude that what she reports is the truth or that it constitutes evidence beyond any reasonable doubt of the accused's guilt". [19] That is not the question here, however.

Authors Béliveau and Vauclair describe the rule allowing the admissibility of res gestae as an exception to the rule prohibiting the use of self-corroborating evidence as confirmation: [20] [ translation ] 797. Res gestae are acts and statements that accompany the commission of an offence or spontaneous comments that explain an action when it happens.

The common law recognizes their admissibility based on the fact that their contemporaneous nature usually guarantees their reliability. [Citations omitted.] [ 75 ] The judge was referring to the complainant's attitude when the police officers arrived, not merely to her statement. She quickly ran out of the house, naked, as soon as she saw the police officers and asked for their help. The spontaneity of the complainant's behaviour leaves no room for doubt since, need it be repeated, the police were not called by her but by the neighbours.

She did not have time to prepare for their arrival. [ 76 ] In my opinion, the trial judge was perfectly right to rely on the complainant's behaviour as res gestae confirming her version of events, if indeed another element was necessary to be convinced. The sincere belief in consent (ground of appeal F) [ 77 ] For the appellant, events unfolded in two distinct stages. [ 78 ] There was the fight (which ended in assault) and the reconciliation. [ 79 ] To cement this reconciliation, he suggested to the complainant that they have sexual intercourse. Because she was scared, the

complainant thought it wiser to use deception to avoid making him angry or being restrained. They went to the second floor. They drank a glass of water in the bathroom. She suggested they go back down to the main floor to use the living room sofa. He agreed. She got undressed, and then he did. He did not touch her and he was not armed. She performed fellatio (but only for a short time). He asked her to lie down on the sofa. She suggested that she get on top of him instead, which he agreed to. There was penetration, but the appellant was uncomfortable. He wanted to change positions, which she refused to do.

He then got up from the sofa. She took the opportunity to flee toward the back balcony and patio door. [ 80 ] The appellant maintains that he was justified in his belief that the complainant had agreed to reconcile and have sexual intercourse with him or at least that there was a reasonable doubt as to his mistaken but sincere belief in his partner's consent. [ 81 ] The trial judge dismissed the argument. Based on subparagraph 273.2( a )(ii) Cr.

C. , he found that the appellant had shown wilful blindness: [21] [ translation ] [97] After analyzing all of the evidence, the Court finds that the complainant did not consent and that the accused knew this. Furthermore, I am convinced that he knew this beyond any reasonable doubt. It is not a mistaken or sincere belief in consent. Like in Boulet v. R. , 2009 QCCA 362 .

This is a blatant case of wilful blindness. [98] There is therefore evidence beyond any reasonable doubt that there was no consent and I cannot find any evidence that raising a doubt to prove a defence of honest but mistaken belief in consent. [ 82 ] The appellant argues that the judge committed a fundamental error in his assessment of the evidence. He did not understand that the events took place in two distinct stages: the fight and then the reconciliation.

He should have inferred from the evidence that the complainant had shown her consent to sexual activity by choosing where it would take place and in which position. The appellant argues that even if the complainant's consent was vitiated by fear, he was entitled to a reasonable doubt if he believed, based on her behaviour, that she had consented to sexual intercourse.

The judge, he goes on to argue, should have asked himself whether his belief in the consent was mistaken and then whether it was sincere. [ 83 ] In my view, the appellant is wrong. [ 84 ] The question of consent is an integral part of the actus reus and the mens rea of sexual assault, but the point of view will change depending on whether the former or the latter is at issue. When analyzing the actus reus , the complainant's point of view must be considered to decide whether the prosecution has proved "absence of consent".

When the focus is the mens rea , it is the accused's point of view that must be considered to decide whether he was aware of the complainant's absence of consent. [22] [ 85 ] The appellant's argument concerns only the knowledge of the absence of consent ( mens rea ). [ 86 ] In defence against this element of the offence, it was open to the accused to argue his mistaken but sincere belief in the complainant's consent.

At that stage of the analysis, therefore, it was up to the judge to determine whether the accused believed that he had the complainant's consent, that is, whether he believed that she had, by her words or behaviour, consented to the sexual activity. [23] [ 87 ] The accused's belief cannot be sincere, however, if it is the result of his recklessness as to his partner's state of mind or his wilful blindness in this respect, or any of the situations set out under sections 273.1(2) and 273.2 Cr. C. Recklessness is knowing that there is a danger or a risk and acting in spite of them.

As for wilful blindness, it consists in not making inquiries when one has perceived the need to do so, preferring to remain ignorant. [24] [ 88 ] Contrary to what the appellant argues, I do not believe that the trial judge erred in his analysis of the question of consent from the point of view of either the applicable legal rules or the facts. [ 89 ] When the judge wrote that [ translation ] "the complainant did not consent", [25] he was addressing the actus reus . When he wrote [ translation ] "the accused knew it", [26] he was addressing the mens rea .

Finally, he considered the case from the angle of the defence submitted by the appellant when he wrote, [ translation ] "It is not a mistaken or sincere belief in consent. ... This is a blatant case of wilful blindness". [27] [ 90 ] In the present case, the evidence largely justified a conclusion of wilful blindness.

The significant violence the appellant inflicted on the complainant and the fear and refusals that she communicated throughout the event should have led the appellant to make inquiries into whether his partner truly was consenting rather than choosing to remain in the dark. [ 91 ] Indeed, before there was any sexual contact at all, the appellant hit the complainant hard, attempted to tie her up with a rope, and tried to strangle her. After that, he threatened her by saying that he could not let her leave because she would file a complaint.

At that moment, the complainant did not see the appellant as a human being since he was in a state of unimaginable rage and hatred. When the appellant asked her to make love, she told him that it was crazy: [ translation ] And then, he said to me: "With what I just did to you, I can't let you leave.” Then he told me, “go upstairs. Come upstairs, we'll go make love. Come upstairs, we'll go...” So then, I tried to reason with him some more: “That's crazy, what are you doing. It's crazy." then he pulled me. We went upstairs, we went up the stairs... Then he told me, “go upstairs.

Come upstairs, we'll go make love.” [ 92 ] Once on the second floor, the complainant clearly told him that she did not want to go into the bedroom. When they went back down to the living room, she continued to tell him that this was crazy. She felt that she had no choice but to obey him:

[ translation ] So then he...he took my right hand with his left hand, and he made me go down the stairs to, to...to the living room. And I kept telling him: “This is crazy. What are you doing? This is outrageous." Then he said to me: "Get undressed." I was... I did not have a choice, you know, it was... I had to play for time, it was the only way I... I got undressed, he got undressed. The way he was placed in front of me, obviously, I couldn’t...

I couldn’t leave. [ 93 ] Then, the appellant ordered the complainant to lie down, which she said she did not want to do, fearing that he would use this opportunity to renew his assault on her: [ translation ] Then he lifted me up, and he told me... He took me off, and told me: “I am not comfortable. I don't like...I'm not comfortable like this." So he pushed me aside, and then he said to me again... He moved me aside, while he held on to me, and said: "Lie down.” I said no. He said, “then I'm going to take you from behind." And then at that moment, when... I said no. Not that either.

I didn’t want to, because from behind too, I thought that he could strangle me. Then he let... he let me go so he could get up. To get up from the sofa, he had to let me go. That was when I took off as fast as possible out of there, and I broke through the screen door with my hands. [ 94 ] It is therefore clear that the complainant communicated repeatedly that she did not wish to have sexual intercourse. The appellant must have noticed that her consent was an issue but chose not to make any inquiries.

He cannot now argue that he mistakenly but sincerely believed in her consent. [ 95 ] That is why the judge wrote [ translation ] "the complainant did not consent", [ translation ] "the accused knew it", and [ translation ] "this is a blatant case of wilful blindness". I see nothing wrong with this. [ 96 ] This ground of appeal must therefore be dismissed. [ 97 ] I would therefore dismiss the appeal from the convictions. The sentence [ 98 ] The appellant has been free since September 1, 2010. [ 99 ] I will not revisit the events that led to the charges.

They are amply described in the first part of my reasons. [ 100 ] I would add however that the appellant is now 63, almost 64, years old. He is the father of three daughters and a grand-father. He has worked for over 20 years as a commercial advertising representative for a printing company. [ 101 ] I would also add that, since the events, the complainant has suffered from insomnia and recurring nightmares.

She also has bouts of nervousness and loss of concentration and motivation. [28] Physically, she has tinnitus in the left ear, occasional dizziness and headaches, and a persistent sensitivity on the left side of the skull (ear and jaw). [ 102 ] In a pre-sentence report dated May 6, 2010, the probation officer explained that the appellant, though abandoned at birth, grew up in an environment where he received love and attention. When he was 40 years old, he divorced his first wife after 20 years of marriage. He met the complainant and they were a couple for 14 or 15 years.

The couple shared many passions and interests, but there were also some sticking points.

During this relationship, he displayed some jealousy, which grew when the complainant met someone new after their break-up in February of 2008. [ 103 ] Except for a single incident, the appellant was never violent toward the complainant. [ 104 ] The appellant does not have a criminal record. [ 105 ] The probation officer points out that the appellant has always demonstrated adequate social integration but does not easily accept failure and is emotionally co-dependent ([ translation ] "perhaps because of his abandonment at birth", she writes).

She explains the appellant's disorganization at the time of the events by his inability to adequately manage his emotions when he was overcome by them. He then acted inappropriately, without thinking or worrying about the consequences that could arise, for the sole purpose of regaining control over a situation (the break-up, the abandonment) that was slipping away from him. [ 106 ] According to the probation officer, he was acting out impulsively and irrationally. The actions were nevertheless serious and violent, revealing a jealous and possessive character that reached its apex that day.

The probation officer observes, however, that the appellant has taken himself in hand [ translation ] "nicely", through a psychological approach that has allowed him to become aware of his co-dependence, his need for control, and his difficulties dealing with his emotions. Today, he would be able to make better choices on the romantic relationship front. [ 107 ] The judicial proceedings are a source of anxiety for the appellant and his daughters, with whom he is very close.

He has the impression that his life shifted in a few instants and that, ever since then, he has lost his bearings. [ 108 ] The probation officer deems that the risk of re-offending is low and that supervision in the community with a focus on continuing psychological treatment would be appropriate. [ 109 ] The appellant raises several grounds of appeal: A. The trial judge erred in law when referring to the starting point concept in sexual assault matters, contrary to the individualization in sentencing principle.

B. The sentence is excessive and unreasonable in light of objective and subjective seriousness and is based only on deterrence and denunciation. C. The trial judge erred in law by failing to apply the proportionality principle based on individual liability, contrary to

section 718.1 Cr. C . D. The trial judge erred in fact and law by imposing, without valid reason, a harsher sentence than the one that the prosecution was seeking. E. The trial judge erred in law by failing to apply the factors of rehabilitation, absence of dangerousness, or personal deterrence, contrary to the individualization in sentencing principle. F. The trial judge erred in fact and law by refusing to apply

section 742.1 Cr. C . [ 110 ] I note the "great deference" that appellate courts must show in sentencing matters when reviewing the decisions of trial judges. [29] That being the case, and with great respect for the trial judge, I believe that the sentence given the appellant violates the fundamental principle of proportionality (section 718.1 Cr. C. ) to which the judge referred twice in his judgment.

In my view, in the specific circumstances of the case, an 18-month prison sentence is not proportionate to the seriousness of the offence and the appellant’s degree of liability. [ 111 ] The principle of proportionality is at the very heart of the process of imposing a fair punishment on the offender within the meaning of sections 718 Cr. C . et seq . Regardless of the weight assigned by the judge to the objectives and principles of sentencing, the sentence itself must be proportionate.

It must not exceed what is fair and appropriate, in light of the seriousness of the offence and the degree of responsibility of the offender. It must be based on the principle of "just desserts". [30] [ 112 ] The actions of the appellant are serious and should be punished. In a society such as ours, lovers' quarrels are not settled with blows and sexual assault. The appellant was accused, tried and convicted. It is a burden that he will bear for the rest of his life, despite the fact that his citizen's behaviour had until then been beyond reproach.

His actions were, according to the probation officer, impulsive and irrational, carried out in a moment of disorganization, when he was unable [ translation ] "to adequately manage his emotions" perhaps [ translation ] "because of his abandonment at birth". This period of emotional disorganization lasted about 30 minutes. [ 113 ] But the appellant's entire life cannot be summed up in these 30 minutes. He is 63, almost 64, years old. He has no prior offences and does not present any traits of delinquency or deviance. He has three daughters with whom he is very close. He is a grandfather.

He is a family man and an active member of society. He has worked for over 20 years for a printing company. [ 114 ] Putting him in prison for 18 months will very likely signal the loss of his job at an age where it will be very difficult to find another. [ 115 ] Despite the effects of the assault on the complainant both physically and psychologically, she is aware of the impact that incarceration would have on the appellant.

She discussed it with her psychologist, both before and after the trial. [ translation ] "She claims that she is worried about the turn events have taken; she would prefer for the accused not to be incarcerated. She agrees that the acts he committed are blameworthy but she also remembers the support he gave her at various times during their 15 years together" (November 25, 2009). [ translation ] "The client knows that this involves incarceration for the man with whom she shared her life. The sentencing will occur in May and the complainant was wondering which steps could be taken to lighten it" (March 4, 2010).

Finally, she wrote to the judge that she is not [ translation ] "filled with the spirit of vengeance" and that she does not give [ translation ] "any importance to the sentence" (May 5, 2010). [ 116 ] The probation officer describes the appellant as someone who is [ translation ] "intelligent, responsible, mature, and altruistic", but unable to adequately manage his romantic emotions.

She observes, however, that when they met, the appellant had [ translation ] "taken himself in hand quite nicely". [ 117 ] He began psychological treatment in October of 2008, which she noted in her report and which is confirmed by a letter from his treating psychologist. Today, the appellant is [ translation ] "better equipped to sort out his emotions" and if [ translation ] "he were to find himself in a similar situation, he would know how to end the relationship in a mature way to avoid the situation degenerating".

The appellant takes this psychological approach very seriously. [ 118 ] In this context, and with the greatest respect for the trial judge, I find that incarcerating the appellant for 18 months is an unfit sentence that justifies our intervention. What have we to gain, as a society, from the appellant losing his job? From his three daughters and his grandchildren being deprived of his presence for 18 months, or worse yet, being compelled to visit him in prison?

How would the appellant's unacceptable actions be more adequately punished by an 18-month prison term than by a sentence combining incarceration on weekends and conditions, while preventing his job loss? [ 119 ] Even if conditional sentences have (unfortunately) not been available since December of 2007 for counts of assault causing bodily harm and sexual assault, [31] they are still available for the count of forcible confinement.

I would therefore allow the application for leave to appeal the sentence, allow the appeal, set aside the judgment on appeal with respect to the 18-month prison term and substitute a conditional sentence of 45 weeks starting February 7, 2014, on the count of forcible confinement to be served concurrently with a 90-day prison sentence to be served intermittently over 45 consecutive weekends as of February 7, 2014, on the counts of assault and sexual assault, and add that the conditions for the suspended sentence will not apply while the appellant is in detention.

I would not vary the judgment on appeal with respect to the three-year probation order following the prison term.

JACQUES CHAMBERLAND, J.A.