2021 QCCA 104, 2021 QCCA 104

Unofficial English Translation of the Judgment of the Court François c. R. 2021 QCCA 104 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-006970-196 (505-01-150006-175) DATE: January 22, 2021 CORAM: THE HONOURABLE GENEVIÈVE MARCOTTE, J.A. ROBERT M. MAINVILLE, J.A. BENOÎT MOORE, J.A. DELINCE JUNIOR FRANÇOIS APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT [ 1 ] The appellant appeals against the July 6, 2018 judgment of the Court of Québec, District of Longueuil (the Honourable Richard Marleau) [1] , that found him guilty of robbery and breaking and entering a dwelling-house.

The same judgment acquitted him on four other counts, namely, forcible confinement, disguise with intent, criminal harassment and uttering threats. [ 2 ] Before this Court, the appellant argues that the judge erred in law by admitting the two out-of-court statements of the complainant, who did not testify at trial, pursuant to the “principled exception” to the rule against hearsay. He further argues that the judge rendered an unreasonable verdict and erred in law by characterizing the motel room in which the events took place as a dwelling- house under ss. 348(1) (

b) and (

d) of the Criminal Code . [ 3 ] A few words regarding the context are in order. [ 4 ] On the evening of October 3, 2017, the complainant, Vicky Lavoie, was occupying room 228 in the Motel Royal Labarre in Longueuil. At 9:07 p.m., Paul Labbé, a fast food delivery man, arrived there. As he was handing the order to the complainant, two individuals pushed him and entered the room. Mr. Labbé left and called 9-1-1. [ 5 ] Upon arriving at the scene, the police officers noted that the room was empty, but found the complainant leaning against a wall outside the room.

The officers testified that she seemed to be in distress and had red blotches on her neck. At that time, the complainant provided an initial statement in which she attested that her telephone as well as $500 in $20-bills had been stolen from her. [ 6 ] At 10:34 p.m., the police officers stopped the appellant when he was in a taxi at the back of the motel. During the search, they found $515 on him, consisting of $500 in $20-bills and $15 in $5-bills, as well as two cellular phones, one of which was the complainant’s.

The appellant then said to the police officer: [ translation ] “Oh, it’s okay, you can give the money back to her, it’s not all hers, but give her back everything” and [ translation ] “also give her back her phone”. [ 7 ] On October 6, 2017, the complainant provided a second statement in the presence of two officers, in which she said that she had found text messages that the appellant had sent her while he was in prison and in which he had allegedly threatened her.

JUDGMENT UNDER APPEAL [ 8 ] The Crown’s evidence consisted of the complainant’s two statements, the recording of the 9-1-1 call, the videotape from the motel’s surveillance and the testimony of the delivery man and of certain police officers who intervened on the night of the events, including Officer Simard, who took the complainant’s first statement. [ 9 ] The main issue in the judgment was the admissibility of the statements of the complainant, who was absent at the trial.

According to Supreme Court jurisprudence, including Bradshaw , [2] in order to admit hearsay evidence, both its necessity and reliability must be proved. With respect to necessity, the judge noted the appellant’s admission, but nevertheless stated, towards the end of his

reasons, that: [ translation ] “[…] it should be noted that it was borderline […]”. [3] [ 10 ] With respect to reliability, the judge concluded that the threshold reliability standard had been met based on other evidence that corroborated the statements, notably, excerpts from the surveillance videotape, the items found in the appellant’s possession and the testimony of the officers attesting to the presence of red marks on the complainant’s neck. [ 11 ] The judge therefore ruled that both of the complainant’s statements were admissible.

However, he noted certain weaknesses in those statements, leading him to acquit the appellant on several counts when there was no other evidence to corroborate the elements of the offence.

He nevertheless accepted the complainant’s identification of the accused because she knew him and he was in possession of the stolen items when he was arrested. [ 12 ] Lastly, the judge characterized the motel room as a dwelling-house under ss. 2 and 348 Cr.C . because the images on the video and the photographs [ translation ] “[…] show nothing other than that only the complainant occupied this room”. [4] ISSUES IN DISPUTE [ 13 ] The appellant raises two main issues:

(1) Did the trial judge err in law by admitting into evidence the complainant’s out-of-court written statements based on the principled exception to the hearsay rule?

(2) Did the trial judge render an unreasonable verdict or did he err in law by characterizing the motel room as a dwelling-house? ANALYSIS

(1) Did the trial judge err in law by admitting into evidence the complainant’s out-of-court written statements based on the principled exception to the hearsay rule? [ 14 ] The inadmissibility of hearsay evidence seeks to ensure procedural fairness, since the other party does not have the opportunity to cross-examine the declarant.

It also has a truth-seeking function insofar as the statement may be inaccurately recorded or may, itself, be a distortion of reality, because the declarant’s perception is mistaken or falsely asserted. [ 15 ] That being so, notwithstanding the inherent dangers of hearsay evidence, in certain instances, the advantages of admitting such evidence outweigh its disadvantages or risks. [5] This is why the case law has recognized exceptions to the rule excluding hearsay evidence pursuant to the so-called “principled exception”, [6] whose conditions flow naturally from the risks of hearsay evidence. [ 16 ] Thus, in order to limit the impact on procedural fairness, the principled exception requires the court to ensure that the admissibility of the hearsay evidence is necessary rather than the result of a strategic choice or that the necessity was not created out of thin air by the inaction of the person seeking to admit the evidence. [7] In that regard, those alleging the admissibility of hearsay evidence must prove that they took reasonable steps to have the witness be present in court. [8] [ 17 ] Moreover, to ensure that admitting the evidence does not frustrate the truth-seeking process, indicia of its reliability must be shown.

Thus, “[t]he hearsay dangers can be overcome and threshold reliability can be established by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability)”. [9] [ 18 ] The criteria of necessity and reliability are evaluated in tandem, such that, for example, if a very high level of reliability is established, the assessment of the necessity requirement may be relaxed. [10] [ 19 ] The appellant first argues that the judge erred by simply accepting his admission that the hearsay evidence was necessary rather than analyzing this criterion, which would have led him to conclude that necessity had not been shown, given that the record did not establish either the incapacity or refusal [11] of the complainant to testify or the respondent’s efforts to ensure her presence in court. [ 20 ] These arguments are not convincing.

First, just as a party can waive a voir dire , [12] it may acquiesce to one of the conditions of admissibility of evidence, although the judge still acts as gatekeeper. [13] [ 21 ] Second, the appellant’s admission regarding necessity was an informed strategic choice made after a break during which he was able to speak with counsel. In such circumstances, although the judge is not absolutely required to do so, he must respect this strategic choice, which is presumed to be made in the interests of the accused.

This is what the judge did and this Court must show deference and refrain from overturning such a decision. [14] [ 22 ] In this regard, the remarks of the Supreme Court in S.G.T. are relevant: [15] [36] Here, the most significant circumstance is that the defence consented to the admission of the evidence. In an adversarial system of criminal trials, trial judges must, barring exceptional circumstances, defer to the tactical decisions of counsel. There is a “strong presumption” that defence counsel are competent in advancing the interests of their clients.

Moreover, counsel will generally be in a better position to assess the wisdom, in light of their overall trial strategy, of a particular tactical decision than is the trial judge. By contrast, trial judges are expected to be impartial arbiters of the dispute before them; the more a trial judge second-guesses or overrides the decisions of counsel, the greater is the risk that the trial judge will, in either appearance or reality, cease being a neutral arbiter and instead become an advocate for one party.

For these reasons, this Court has previously held that the burden to raise evidentiary issues properly rests on the shoulders of counsel. [37] The corollary of the preceding is that trial judges should seldom take it upon themselves, let alone be required, to second-guess

the tactical decisions of counsel. Of course, trial judges are still required to “make sure that [the trial] remains fair and is conducted in accordance with the relevant laws and the principles of fundamental justice”. […] [References omitted] [ 23 ] It should be added that this ground seems, in many respects, moot.

Indeed, in his reasons, the judge described the steps the Crown took to ensure the complainant’s presence in court, including the summons issued to her, her presence at a preliminary meeting a few days before the hearing and the visit by police officers to her last known place of residence on the morning of the trial. The judge’s description of these facts demonstrate that he considered the issue of necessity.

Moreover, he ruled on the issue when he noted that the necessity [ translation ] “was borderline”, which implies that, in his view, it was sufficient. [ 24 ] As to reliability, the appellant argues that the threshold reliability test has not been met with respect to procedural or substantive reliability, since there is nothing to corroborate the robbery nor, more generally, all of the events that took place in the room. Moreover, certain elements of the complainant’s statements appear to be contradicted by the surveillance videotape.

In the appellant’s view, the judge should therefore have excluded the complainant’s statements. [ 25 ] It bears reminding that threshold reliability will have been established when the hearsay “is sufficiently reliable to overcome the dangers arising from the difficulty of testing it”. [16] This reliability is assessed through external and objective indicia of quality, which may relate both to the procedural aspect—when there are adequate substitutes for testing the evidence, such as “a video recording of the statement, the presence of an oath, and a warning about the consequences of lying” [17] —and to the substantive aspect. [ 26 ] These indicia of quality work in tandem rather than being mutually exclusive. [18] Karakatsanis, J. explained the complementarity of the two approaches as follows: [19] […] For this reason, where procedural reliability is concerned with whether there is a satisfactory basis to rationally evaluate the statement, substantive reliability is concerned with whether the circumstances, and any corroborative evidence, provide a rational basis to reject alternative explanations for the statement, other than the declarant’s truthfulness or accuracy. [ 27 ] The assessment of reliability falls within the discretionary power of the trial judge [20] and is entitled to deference from this Court.

For example, procedural reliability indicia may be minimal and substantive reliability indicia may be high. [ 28 ] In the case at bar, the procedural reliability indicia, while not entirely non-existent, are few in number and are essentially limited to the fact that the first of the two statements, which is admittedly the more determinative one, was made under oath.

It is therefore primarily the substantive reliability, which supplemented the procedural realiability, that allowed the judge to conclude that the statements were admissible. [ 29 ] That being said, there is no error in the judge’s reasoning on this point that warrants the intervention of this Court. The essential points of the statements are corroborated by external elements. [ 30 ] First, the surveillance videotape shows the entry into the complainant’s room.

In addition, at trial, the delivery man testified that he saw the complainant being grabbed by the neck and the two police officers testified that the complainant had red marks on her neck. [ 31 ] Lastly, and most importantly, when the police officers stopped the appellant, he was in possession of the items the complainant said had been stolen from her and his counsel admitted at the hearing that his client had then told the police officers to return those items to the complainant. [ 32 ] All of this gave the judge ample reasons to conclude that there was sufficient assurance of the reliability of the statements and that the statements would not have changed under cross-examination. [21] The judge was therefore justified in accepting them.

(2) Did the trial judge render an unreasonable verdict or did he err in law by characterizing the motel room as a dwelling-house? [ 33 ] In his second ground of appeal, the appellant argues that the judge rendered an unreasonable verdict or erred in law by characterizing the motel room as a dwelling-house under s. 2 Cr.C .

As a result, rather than being convicted of a hybrid offence liable to imprisonment for a term of not more than 10 years, [22] the appellant was convicted of an indictable offence liable to imprisonment for life. [23] [ 34 ] The appellant concedes that a hotel room can be a dwelling-house even if its occupancy is temporary. However, such occupancy must be of a certain duration and, in particular, must be for residential purposes, that is, a place where the person habitually resides. Consequently, he argues, the Crown cannot merely provide abstract evidence.

In the present case, the record only shows the complainant’s occupancy of the room at the time of the events. There is nothing establishing that this was her place of residence, especially since the photographs of the premises and of the objects seem to indicate that this was a place where she met with clients. [ 35 ] Given the lack of sufficient evidence for characterizing the room as a dwelling-house, the appellant asks that the lesser included offence provided for in ss. 348(1) (

b) and (

e) Cr.C . be substituted . [ 36 ] As for the respondent, it argues first that the appellant’s counsel admitted, at the trial, that based on the case law, the motel room was a dwelling-house. In its view, this admission is, in any event, consistent with the state of the law.

Section 2 Cr.C . provides that part of a building is a dwelling-house if it is kept or occupied as a permanent or temporary residence. The respondent argues that a hotel or motel room offered for rent is always “kept” by the hotel or motel operator as a permanent or temporary residence for potential clients. Moreover, this is logically consistent with Parliament’s purpose in enacting s. 348(1) (

d) Cr.C . , which aims to place emphasis on

violations of privacy in one’s home, which represents a violation of the home’s “sanctity” [24] for its residents. [ 37 ] The respondent adds that, even without applying such an

interpretation, the judge here concluded that the complainant was the room’s only occupant. Therefore, not only was the room kept by the motel operator as a residence, but it was, in fact, occupied by the complainant as such, regardless of the way in which she was using it. [ 38 ] Before delving into our analysis, we would point out that the appellant’s counsel admitted, at the hearing, that the room was a dwelling-house.

Even though this admission was not binding on the judge, it may serve to explain the brevity of the reasons in the judgment under appeal on this point. [ 39 ] It is useful to consider the context for the enactment of what is essentially still the definition of dwelling-house provided for in s. 2 Cr.C . [ 40 ] Until it was amended in 1947, paragraph (

g) of s. 335 Cr.C . defined a dwelling-house as follows: (g) “dwelling-house” means a permanent building, the whole or any part of which is kept by the owner or occupier for the residence therein of himself, his family or servants, or any of them, although it may at intervals be unoccupied. [ 41 ] In 1947, Parliament replaced this definition with the following one: [25] (13.) Paragraph (

g) of

section three hundred and thirty-five of the said Act is repealed and the following substituted therefor:— “ (g) ‘dwelling-house’ means and includes the whole or any part of any building kept or occupied as a permanent or temporary residence;” [ 42 ] The explanatory notes accompanying the provision of the Bill setting out this amendment state: [26] The courts have held that the above definition does not include a room or rooms in an hotel.

The purpose of the amendment is to provide that a room or rooms in an hotel or house constitute a dwelling-house. [ 43 ] Although the wording of the definition has changed again since then, the essential expression “kept or occupied as a permanent or temporary residence” remains. Since the 1947 legislative amendment, the reported case law addressing this subject seems to be unanimous in accepting that a hotel room can be a dwelling-house. [27] In fact, the appellant does not contest this. He only argues that a hotel room is not necessarily a dwelling-house.

According to him, there must be evidence that the room is occupied as a residence within the ordinary meaning of that word, that is, a place where a person habitually resides. [ 44 ] This argument is not convincing. In accordance with the decision in Henderson , authors Manning, Mewett and Sankoff write the following in their treatise on criminal law: “A hotel room is kept or occupied as a temporary residence and is thus a dwelling-house”. [28] This conclusion is consistent with the wording of s. 2 Cr.C . and with the aim of making a dwelling-house an aggravating factor for breaking and entering.

In doing so, Parliament sought to recognize the expectation of privacy of occupants when they are in their home. [29] The same expectation exists for occupants of a hotel room. [ 45 ] Lastly, it is not necessary here to address the issue, raised by the respondent, as to whether a hotel room is always, regardless of the facts, a dwelling-house because it is, by its very nature, “kept” for use as a temporary residence. After assessing the evidence as a whole, the trial judge found that the complainant was the sole occupant of the room.

He did not commit a reviewable error and this finding alone is sufficient to characterize the room and dispose of the appeal. FOR THESE REASONS, THE COURT: [ 46 ] DISMISSES the appeal. GENEVIÈVE MARCOTTE, J.A. ROBERT M. MAINVILLE, J.A. BENOÎT MOORE, J.A. Mtre Léo Fugazza For the appellant Mtre Maxime Hébrard DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the respondent Date of hearing: December 15, 2020