r v. K. V., 2023 QCCQ 9514

R. c. K.V. 2023 QCCQ 9514 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF GATINEAU CITY OF GATINEAU “Criminal and penal Division” No: 555-01-001363-218 DATE: September 26, 2023 ______________________________________________________________________ BY THE HONOURABLE ANOUK DESAULNIERS, J.C.Q. ______________________________________________________________________ THE KING Prosecutor v. K. V.

Accused ______________________________________________________________________ VERDICT ______________________________________________________________________ The present file is subject to a publication ban prohibiting the publication of any information that could identify the complainant. (486.4(1) Cr. C) ​ [ 1 ] The accused, K. V., is charged with committing a sexual assault against the complainant, Ms. A., who is his former common law spouse. [ 2 ] The accused and Ms.

A. lived together in a common law relationship for 19 years and have a daughter, who is now 20 years old. [ 3 ] At the time of the alleged events, in August 2020, the accused and Ms. A. had separated and he had left the family home, only to move into a house he owns across the street. [ 4 ] Occasionally, the accused would visit Ms. A. and their daughter at the family home, where Ms. A. still lived. According to Ms. A., on one such visit in August 2020, she agreed to accompany him on a “side-by-side” vehicle ride on the land where the house was situated. Ms.

A testified that the accused stopped the vehicle in a secluded area and proceeded to sexually assault her. [ 5 ] The accused admits having visited Ms. A. and their daughter, but denies having gone on a “side-by-side” ride with Ms. A. He also denies that he had sexual relations with her that day. [ 6 ] The testimonies of the accused and Ms. A. are irreconcilable. Assessment of credibility is therefore at the core of the present case.

Essentially, the Court must consider the testimonies of the accused and the complainant and decide whether the Crown has successfully proven beyond a reasonable doubt that the accused is guilty of sexually assaulting Ms. A. ANALYSIS 1 The law [ 7 ] The offence of sexual assault is set out in

section 271 of the Criminal Code ( Cr. C .). In

summary, it consists of an assault [1] committed in circumstances of a sexual nature such that the sexual integrity of the victim is violated.

[ 8 ] It is not at issue in this case whether the events described by Ms. A. are sufficient to constitute sexual assault within the meaning of the Criminal Code . They are. Therefore, there is no need to review the essential elements of this offence in detail. [ 9 ] Rather, let us examine the notion of reasonable doubt and the framework the Court must apply in its assessment of credibility, since this is the central issue in this case. 1.1 Reasonable doubt [ 10 ] The Crown bears the onus of proving beyond a reasonable doubt that the accused is guilty of sexually assaulting the plaintiff.

But what exactly is reasonable doubt? A reasonable doubt is based upon reason and common sense, not sympathy or prejudice.

It is logically connected to the evidence or absence of evidence presented at trial; thus, it is not imaginary or frivolous. [2] [ 11 ] Proof beyond a reasonable doubt involves more than mere probability; it requires a very high degree of certainty, [3] but it is not proof to an absolute certainty. 1.2 The applicable framework when credibility is at stake [ 12 ] When the evidence in a criminal trial is essentially composed of the contradictory testimonies of the complainant and the accused, as in this case, one may think that the Court’s verdict is based on its assessment of which version is more likely, or more credible.

But criminal trials are not “credibility contests”, because framing a criminal trial in this way would transfer the burden of proof to the accused by requiring them to convince the Court that their version is more likely than the complainant’s. [4] Such an approach would, among other things, run afoul of the accused’s constitutionally protected presumption of innocence. [5] [ 13 ] The Court’s verdict should not be based on whether it prefers the defence evidence or the Crown’s evidence.

Rather, the paramount question remains whether, on the whole of the evidence, the Court is left with a reasonable doubt about the guilt of the accused. [6] And the Court is free to accept some, all or none of the evidence of any witness. [7] [ 14 ] In its 1991 decision in R. v.

W.(D.) [8] and in subsequent rulings, the Supreme Court of Canada outlined a framework for addressing this question and assessing credibility in the context of a criminal trial. [ 15 ] First, the Court must assess whether it believes the accused’s exculpatory version, considering all the evidence. [9] If so, the Court must acquit the accused. [ 16 ] Second, if the Court does not believe the accused, it must examine if it is left with a reasonable doubt as to their guilt, after considering the accused’s evidence in the context of the evidence as a whole.

This is because lack of credibility on the part of an accused does not equate to proof of their guilt beyond a reasonable doubt. [10] And there may be situations where, although the Court is skeptical as to the accused’s version, it is not ready to reject it altogether.

Thus, there remains a doubt as to the accused’s guilt and this doubt must benefit the accused and result in their acquittal. [ 17 ] Third, even if the Court is not left in doubt by the evidence of the accused, it must examine whether, after careful consideration of all the evidence, it is convinced beyond a reasonable doubt of the guilt of the accused. There may be situations, for instance, where the Crown’s evidence is weak on one essential element of the offence, resulting in the accused’s acquittal even where their defence did not raise a reasonable doubt. [ 18 ] Since R. v.

W. (D.), subsequent caselaw, including that of the Supreme Court of Canada, developed an additional step to this framework: If, after a careful consideration of all the evidence, the Court is unable to decide whom to believe, it must acquit. [11] 2 The law applied to the facts of the case [ 19 ] The Court finds itself in the situation addressed just above: After considering the evidence of the accused and the complainant, the Court is unable to decide whom to believe. [ 20 ] Below are the considerations that led to this conclusion.

From a chronological point of view, the Court finds it more suitable to first address the complainant’s evidence. 2.1 Consideration of the complainant’s evidence [ 21 ] Ms. A. testified that, on the day of the events, the accused arrived around supper time with his “side-by-side” bike, which was not unusual. She was pleased because he had just agreed to participate in family counselling with her. She was hopeful that they could work things out. [ 22 ] They sat on the patio with their daughter. At one point, when their daughter was out of earshot, the accused suggested that he and Ms.

A. go for a “side-by-side” ride in the trails behind the home. [ 23 ] Ms. A. hoped to have a private conversation with the accused but preferred that it take place at her home instead of on the “side- by-side”. Previously, on a couple of occasions, she and the accused had gone together on the bike to a remote area behind the house and had sexual relations there; Ms. A. did not wish to be intimate with the accused that evening and was concerned that this is what he had in mind. [ 24 ] According to Ms.

A., the accused explained that he just wanted to talk, and promised that he would not try to initiate sex with her. He also mentioned that he was still sore from a medical procedure he had undergone earlier that day at the Town A hospital to empty his bladder. Ms. A. knew that this involved the insertion of a penile catheter, so she felt reassured that the accused would not be in any condition to have sex and that he only wanted to have a private conversation with her.

She agreed to accompany him. [ 25 ] However, the accused drove the “side-by-side” to a remote area near a sand pit, got out right away and grabbed her hand. Ms.

A. immediately understood what was about to take place. She started crying and said no. But the accused brought her to the back of the vehicle, pulled down the tail gate, and pinned her down over it, pressing his forearm on her back. With the other hand, he proceeded to pull down the shorts or pants she was wearing. He opened her legs with one knee and proceeded to penetrate her vaginally, while she begged him to stop. [ 26 ] Ms. A. cried all the way home. The accused said nothing, except for one remark: “I guess it wasn’t good for you.” [ 27 ] Ms.

A. testified that, when they arrived back at her home, she walked directly inside because she did not want her daughter to see her so upset. However, she went back outside a few minutes later to retrieve her cigarettes from the “side-by-side”. The accused tried to give her a hug, but she did not engage with him and returned inside her home and took a bath. The accused stayed outside and left after a little while. [ 28 ] The next day, Ms. A. learned that the accused was planning to go on a boat ride with their daughter and her boyfriend, J. Ms.

A. thought the accused would take this opportunity to apologize for what had taken place the night before. However, she was disappointed to learn from her daughter that the accused did not want her to join them on the boat. She sent him a text message in the afternoon, saying that she had hugged him the night before and asking whether she had done anything wrong. The accused replied “No y” (i.e., “No, why?”). [ 29 ] When the accused returned from the boat ride around supper time, she expressed her disappointment with him for not including her in the day’s activities.

The accused became very upset, started cursing and told her he no longer wished to participate in family counselling. He kicked her car and left. She told him to never come back. [ 30 ] Later that day, Ms. A. sent a text message to the accused, blaming him for rejecting her and ruining what could have been a nice afternoon on the water with their daughter, “working on being a family”. “You finally broke the camels (sic) back”, she wrote. Ms. A. informed the accused she no longer wanted to see a family counsellor with him and would hire a lawyer instead. [ 31 ] Ms.

A. did not mention the sexual assault in her test message to the accused. In cross-examination, she explained that these events were very personal, and she did not want someone to accidently read about them on her cell phone. [ 32 ] Ms. A. delivered a poignant and heartfelt testimony. She became very emotional when describing the alleged sexual assault and seemed to remain genuinely shaken by these events, close to three years after the facts.

She did not try to evade any questions in cross- examination and seemed to speak truthfully about the alleged sexual assault and her relationship with the accused. [ 33 ] However, there were several inconsistencies between her testimony in Court and the statement she gave to the police. For example, she mentioned in her statement that the accused was working on the day of the alleged sexual assault. Their text messages, filed in defence, prove instead that the accused was at the hospital, undergoing a painful procedure. At trial, Ms.

A. testified that she now remembers the accused had spent the day at the hospital and that this was an important factor in persuading her to go on the “side-by- side”. This would seem like an important fact associated with the alleged sexual assault. However, Ms. A. could not explain why this escaped her in her initial statement, nor when and why she ended up changing her version at trial, aside from the fact that her statement to the police was contradicted by the tangible evidence of her text messages to the accused on August 14, 2020. [ 34 ] Even with these inconsistencies, Ms.

A.’s testimony seemed generally credible and reliable. 2.2 Consideration of the accused’s evidence [ 35 ] The defence filed a print-out of the text messages between the accused and Ms. A. on August 14 and 15, 2020, as well as excerpts from the accused’s medical record. These documents are helpful in confirming that he attended the Town A hospital on August 14, 2020, the day of the alleged sexual assault. [ 36 ] The accused does not contest that he indeed saw Ms. A. on August 14, 2020.

But he offers a diametrically different version of what took place on that day. [ 37 ] That morning, while he was at the hospital, he received a text message from Ms. A. urging him to confirm an appointment with the family counsellor. He reminded her that he was at the hospital and told her he would deal with this when he got home. Ms. A. apologized profusely, saying she had forgotten about the appointment, and offered her help if he needed anything. The accused returned home from the hospital mid-afternoon. His local anesthesia had not completely worn off, so he did not do much for the rest of the afternoon.

Around 6:30 p.m., he wrote to Ms. A., informing her that he was waiting to hear from an employee and that he might visit her after “for a minute”. [ 38 ] Mr. V. did not use the “side-by-side” that evening; instead, he walked to Ms. A.’s residence, which took him about a minute. He joined Ms. A., their daughter and J. on the patio. The accused chatted with them for about an hour then decided to leave. He wanted to go home because he had been instructed to return to the hospital if he was still unable to urinate by 9 p.m.

He had a friend on stand-by to drive him to Town A if need be, so he wanted to let this person know that he would not need his assistance. He said goodbye to everyone, including J., who was hitting golf balls, and left. He does not remember giving Ms. A. a hug. [ 39 ] The accused was wearing lined underwear because he was still experiencing light rectal bleeding from his surgery, which continued overnight. [ 40 ] The next day, he spent the afternoon on a boat excursion with his daughter and J. The accused explained that he did not invite Ms.

A. at their daughter’s express request because she was concerned that Ms. A. would drink. The accused did not see Ms. A. that day and was surprised when he received her angry text message. He asked their daughter, who admitted she had lied to Ms. A., telling her that he was the one who did not want her along for the boat ride. [ 41 ] According to the accused, it was very clear to him that his relationship with Ms. A. was over. He moved out of the family home

in May 2020 and, after that, was trying to keep things amicable between them for the sake of their daughter. He had reluctantly agreed to Ms. A. looking into the possibility of consulting a family counsellor, but he was not particularly interested in participating in counselling; he did not believe that it could bring any improvement and he did not intend to ever get back together with Ms. A. [ 42 ] The accused denied going on a “side-by-side” ride with Ms. A. and having sexual intercourse with her.

He added that, at the time of the events, he was so upset emotionally from their separation that he could not keep an erection. [ 43 ] The accused gave a compelling and heartfelt testimony. He became emotional at times when speaking about his failed relationship with Ms. A. and his concern for their daughter, who must find the situation very difficult. [ 44 ] The accused had a good recollection of the day of the events and was able to provide many details. His description of what took place remained consistent, and it did not waver in cross-examination. The Court did not note any contradiction in his testimony.

The accused seemed a credible and reliable witness. [ 45 ] The accused did not argue that his medical procedure on August 14, 2020, including the insertion of a penile catheter, would have prevented him from having sexual intercourse that evening. Nevertheless, the Court cannot help but think that the physical discomfort he experienced that day and was still feeling at night makes it more unlikely that he would have engaged in sexual intercourse that evening. This is one of the elements in the Court’s consideration, although not determinative.

CONCLUSION [ 46 ] The evidence essentially consists of the testimonies of the accused and Ms. A. Neither is supported by confirmatory evidence, other than the text messages and the accused’s medical record, which only provide context. This is a case which rests on two conflicting, yet equally credible and compelling, accounts of a single event. [ 47 ] After careful consideration of all the evidence, the Court is unable to decide whom to believe between the accused and Ms. A. Both their testimonies seemed genuine, honest and heartfelt. Both their versions seemed equally plausible.

The accused’s version was unwavering and clear, and Ms. A.’s version was credible despite some inconsistencies. [ 48 ] Because it does not know whom to believe, the Court is left in doubt as to whether the accused is guilty of sexually assaulting Ms. A. This leads to the conclusion that the Crown has not met its burden of proving the accused’s guilt beyond a reasonable doubt. He must be acquitted. [ 49 ] The Court is aware that this type of “undecisive decision” may prove frustrating for both parties. For the accused, his innocence is not affirmed. For Ms. A., her brave testimony may seem fruitless.

There is no clear winner or loser in this case. But such is the nature of criminal trials and the evidentiary burden on the Crown to prove an accused person’s guilt beyond a reasonable doubt. [ 50 ] The Court is grateful for the dignified and respectful way in which both parties conducted themselves during the trial. FOR THESE REASONS, THE COURT DECLARES the accused not guilty. __________________________________ ANOUK DESAULNIERS, J.C.Q. Mtre Simon Pelletier Counsel for the prosecution Mtre Dominik Robinson Counsel of the accused Date of hearing: May 30, 2023