r v. NIGEL ST-HILAIRE, 2014 QCCQ 11349

R. c. St-Hilaire 2014 QCCQ 11349 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF LONGUEUIL TOWN OF LONGUEUIL Criminal and Penal Division No: 505-01-106413-129 DATE: November 13, 2014 ______________________________________________________________________ BY THE HONOURABLE RICHARD MARLEAU, J.C.Q., PRESIDING ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

NIGEL ST-HILAIRE Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The accused stood trial on three counts: sexual assault, unlawful confinement and kidnapping. [ 2 ] The Crown’s theory is that the accused met randomly on the streets of Brossard the complainant on April 12 2012. That much is true, as we will see. He then took hold of her, brought her by force behind a building and had sexual intercourse with her without her consent. [ 3 ] The accused admits this encounter.

However, at no time did he apply force on the complainant and any sexual activities that took place was with her full consent. [ 4 ] The live issue to be resolved is if the accused is indeed innocent or guilty of the accusations. If it is the latter, we also have to resolve if the rule prohibiting multiple condemnations will apply. EVIDENCE OF CROWN

A) THE COMPLAINANT [ 5 ] The complainant had just finished work around 6 pm and was walking on Auteuil Street in direction of the Panama bus terminal. [ 6 ] She noticed a man [1] who was walking toward her. He crossed the street. She continued her walk. Shortly after, she felt followed and heard someone talking behind her. She then felt a hand being put on her mouth and an arm put around her. He told her that he just wanted to talk. [ 7 ] The accused then forces her to go behind the building in front of where they are. Once there, she cries. [ 8 ] He repeats that he just wants to talk. He pulls her and hold her.

She tries to free herself, without success. He tells her to calm down and that he will do nothing. She then assumes that she is free to go. She starts walking but the accused gets hold of her by her arm and stops her. [ 9 ] She then fears that he will be violent to her or that he might be armed. She consequently asks him to not harm her and that she will do as he wants. [ 10 ] In reply, he starts kissing her chest over her clothing while at the same time pushing the clothes away. [ 11 ] She feels displeased and ask him to stop. He does.

He tells her that he doesn’t want “to do it to her” but that he had a fight with his father and that two years have gone since his last sexual encounter. [ 12 ] She tries again to have him stop. She doesn’t want to stay there either. She can hardly explain why, but if something is going to happen, she doesn’t want it to happen in the middle of the parking lot.

[ 13 ] There is a shed nearby. They move in that direction. She is not sure if she went and he followed or if he was holding her arm while going there, but once they reach the shed, he talks again about his personal problems and the earlier fight with his father. [ 14 ] He then tells her to lower her legging. He has already lowered his pants by then. She obeys. He takes out a condom and put it on. [ 15 ] She once again tells him that he doesn’t have to do that. By then, she was anguished and speaking low. He doesn’t stop. [ 16 ] He puts himself behind her and vaginally penetrates her with his penis.

He slaps her on her buttocks at the same time. [ 17 ] It last a few minutes. He stops when he hears a police siren. He seems surprised and he tells her to “say nothing”, that they had just been talking. [ 18 ] Both get dressed and the police arrive. An officer quickly finds them and tell them that they are under arrest for investigative purpose. [ 19 ] She is taken apart from the accused. She’s questioned as to what had taken place. [ 20 ] The accused is nearby with another officer. She follows his instruction and tells the officer that they had been just talking.

Other officers arrive on the scene. [ 21 ] She feels that she is disbelieved. By then, an officer had found the condom. [ 22 ] Nevertheless, the complainant maintains her story. In her mind, at that point, she just wants to leave the scene. [ 23 ] An officer, Martin Tremblay, leaves her his card and invites her to contact him should she wants to make a statement later and modify her story. [ 24 ] The police brings her to the bus terminal. As far as she knows, the accused is set free from the scene.

B) HOW AND WHY THE POLICE WAS ON THE SCENE [ 25 ] A bystander, Frederick Milligan, is driving on Auteuil Street and notices two persons near a bus stop, a black male and a white woman. Their behaviour seems weird and odd. The male seems to force the female to walk backward while facing her. [ 26 ] The witness turns at the intersection and lose sight of them briefly. He sees them again near the back wall of a building [2] . [ 27 ] His feeling is that something is going on. Nothing seems OK. The female does not appear to do what the male is asking.

His perception is that he seems to want to take her clothes off and also takes his off. The female doesn’t look to consent. Their body language and gestures leaves no doubt in his mind. [ 28 ] He then decides to call the police. Asked as to where he is, he has to circle the block and come back on Auteuil Street to give the address of the building. By doing so, he loses sight of them again until he sees the police arrive. He then sees the couple emerge from a bush near a shed. She is arranging her pants and he has his shirt off.

C) OFFICER TREMBLAY’S TESTIMONY [ 29 ] This is what he recalls. The call had been for a possible assault [3] . By chance, he and his partner were just a few streets away. On the scene, no violence is apparent and it is difficult to assess exactly what had taken place. Nevertheless, both the complainant and the accused had the same story. After being initially involved with the accused, he discussed with the complainant. [ 30 ] He tried to confront her in order to make sure if she was telling the truth. She seemed scared, frozen and looked as if she had cried. Her answers were just “yes“ or “no” by then.

Condoms had been found near where they had been hidden, one of which had been used. An asthma pump was also on the ground. For Tremblay, the scene did not make much sense if they had just been talking. [ 31 ] The officer finally tells her that he does not believe very much her story. He suggests that maybe she had received threats to give that version. He adds that maybe she had not been here for long and had a mistrust against police.

He told her that they can be trusted. [ 32 ] The complainant maintained her version. [ 33 ] It was then emphasized that if she changed her mind concerning what had happened, she could call him back. [ 34 ] The officers were now at a dead-end. No apparent crime had been committed. Both parties’ stories held. The accused was set free. The complainant was driven to the bus terminal.

D) THE SUBSEQUENT EVENTS AFTER APRIL 12, 2012 [ 35 ] What unfolded after proved that officer Tremblay instinct had been right. [ 36 ] The complainant is an immigrant from Columbia and had been here for just a couple of years. She had a mistrust of police in her country. They had the reputation of being corrupted. It was enough for her not to trust the officers on the scene. It was her first real interaction with police here. Added to the order of the accused to remain silent as to what had really took place combined with the fear that he might hurt her if she told the truth, she had decided to lie to the officers.

[ 37 ] The day after, she went back to her work place. She asked her boss to bring her to the hospital, afraid that she might be pregnant. She wanted to have the “24 hours pill”. Her boss found that strange. [ 38 ] A discussion followed and the complainant told her what happened the previous evening. Her boss did not believe her. [ 39 ] The complainant left alone anyway for the hospital and a spiritual refuge where her aunt was. [ 40 ] Unbeknownst to the complainant, her boss called the aunt whom she knew. The aunt was made privy to her niece’s allegation. She did meet her niece the same day.

Nothing was discussed between the complainant and her aunt but the aunt asked a meeting with her at a restaurant a few days later. She then asked if what she had told her boss was true.

The complainant confessed the story, including why she had not told the truth to the police on the scene. [ 41 ] Her aunt convinced her that police could be trusted here and strongly suggested that she files a complaint. [ 42 ] The complainant called back officer Tremblay the same day and left him a message. [ 43 ] They met shortly after and she told him what had really happened. [ 44 ] The officer quickly realized that sexual assault with confinement was at play. [ 45 ] Proper statements of the complainant were obtained and the report became a criminal investigation from that moment.

E) THE INVESTIGATION [ 46 ] The relevant highlights of the investigation are as follows: − Detective Nadine Vincent was assigned to the case on April 23, 2012. − The initial police report was identifying the suspect and witness. − M. Milligan was contacted. He filed a proper statement. He easily identified the accused on a photo line-up [4] .

The original 9-1-1 call was traced and copied. − The crime scene was revisited with the complainant. − The crime scene was also properly revisited by a crime scene investigator, Claudine Desprès, with officer Tremblay present on April 23 rd , 2012. − Two condom’s envelope were found, and seized. One opened, one not.

The used condom seen originally on April 12 was still there and also seized. − A warrant for the arrest of the accused is authorized on May 16 th , 2012. − The accused is arrested the same day and questioned by detective Annie Morrisette. − The interrogation lasts 4 hours and is videotaped. − The used condom was sent for DNA testing and came back with a male profile inside and a mixed male/female profile on the outside. − Blood sample of the complainant were then taken for comparison and also sent for testing. − The result came back conclusive: the female DNA on the outside of the condom was the complainant’s one.

F) OTHER RELEVANT EVIDENCE [ 47 ] Other witnesses were heard. We can summarize their evidence as follows: − Officer Mercier was Tremblay’s partner. − He initially went to the complainant when both her and the accused emerged from the bushes behind 6000 Auteuil. − The complainant stated that nothing sexual had happened, that the accused had brought her there to discuss his problems. − She was crying a little. He saw a tear. She was avoiding eye contact with the accused nearby.

She seemed terrified and victim of something but was denying that it could have been the case. − They found a jacket on the ground with an asthma pump inside. An identical pump was on the ground also. They also found two condom’s pack on the ground, the same brand as inside the jacket. − He corroborates the statement that the accused made to officer Lacroix on the scene. − This brings us to officers Gauthier and Lacroix who arrived very shortly after the first duo on the scene. − Officer Lacroix went toward Tremblay and the accused. They took charge of the accused from there on until Tremblay went to the

complainant. − It was mostly Lacroix who spoke to the accused, within earshot of Gauthier. − He was also trying to make sense of the scene, as Gauthier, seeing that the original call was for “a man bringing by force a woman behind a building”. − The accused seemed to be cooperative and answered the questions put to him. Lacroix felt that something wrong was taking place, but could not pinpoint what.

One thing for sure, the accused’s story did not work with the citizen’s call that had brought them there. [ 48 ] The accused’s statements the night of the incident and his video statement at the station on May 16 th , 2012 are on record following “voir dire”. They were ruled admissible [5] . [ 49 ] Basically, the accused was saying as follows on the crime scene: − He had done nothing wrong and had nothing to blame himself for. − He had seen the girl on the sidewalk, had found her pretty and had decided to talk to her. − This was not unusual behaviour for him.

He had done that on many occasions when he met like that a pretty woman. − It was normal to do so from where he is from. He said that he grew up in Calgary and Montreal. − He only took her apart to discuss. THE ACCUSED’S DEFENSE [ 50 ] The accused is not denying his encounter with the complainant. [ 51 ] His life was not going very well at the time. He was unemployed for the last 3 to 4 years. He had debts. He had no source of income. He was stressed. He had no girlfriend. He felt mistreated by family members. He was living with his father.

He had no money. [ 52 ] He corroborates the content of his video interrogation. Among other things, he had a dispute with his father that very morning. He had asked him money for an escort or a prostitute, feeling that he had been alone for too long. His father had refused. [ 53 ] Around 6 pm, he decided to leave the house and do what he often did, namely walk at “random”. [ 54 ] He admits being frustrated and anxious before seeing a young lady on Auteuil Street that was walking toward him. He passed her, but backtracked and approached her. [ 55 ] She was a stranger, he had never met her before.

He asked her to come behind the building that they were facing. [ 56 ] He asked her to calm herself once behind the building. He put his hand on her shoulder. [ 57 ] He asked her who she was and small talk followed. He started telling her about his problems and she was listening. Both were nervous. [ 58 ] He asked if she could help him by giving him a sexual favour in order to evacuate his stress since nothing else had worked to alleviate his distress. [ 59 ] He told her that if she didn’t want, she could leave. [ 60 ] They continued talking.

She finally said that she didn’t want it to happen there in the middle of the parking lot, so they went by a shed. She asked him if he had a condom. He said yes. [ 61 ] He now explains that he always has one on him just in case the opportunity presents itself. [ 62 ] So, he put the condom. She lowered her pants herself. She then hopped on him and they did it from the front. They later switched position and he did it from the back. It might have lasted 5 minutes. [ 63 ] They talked a bit after and he thanked her. 2-3 minutes later, the police arrived.

He never heard them coming. [ 64 ] He corroborates the officer’s testimony as to what took place from that moment. He was eventually told that he was free to go. THE LAW [ 65 ] The Court is bound by the three steps analysis of the Supreme Court of Canada in R. v.

W(D) 1991 1RCS 7 in regard of assessing 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, based on the evidence that you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[ 66 ] Furthermore, the judge must factor in all of the evidence tendered in order to determine if the accusation has been proven without a reasonable doubt or if it still subsist a reasonable doubt in favor of the accused [6] .

ANALYSIS [ 67 ] The accused is corroborating the complainant’s evidence on almost every aspect of her testimony, save for the force used to reach originally the back of the building, eventually the shed, and her consent to the sexual intercourse. [ 68 ] First off, the accused’s testimony at trial elicited some answers that cast a doubt as to the validity of this consent: − When asked if she consented to the sexual act, he does not reply directly but instead answers “that she did not oppose resistance”. − When asked if she cried, he answers that he doesn’t recall, but that it could be. − He feels sorry for the way that it ended. − He felt her nervous behind the building.

He cannot say why, he simply had a kind “of vibration”. [ 69 ] To start with, one cannot conclude that these answers are strong indicators of a willing partner. [ 70 ] When we add to this testimony his previous statements made at the police station, we get a picture of someone that was stressed, anxious, obviously distressed by his loneliness and lack of intimacy with a woman. By his own admission, it had been 2 years since his last sexual relation. He was fed up with masturbating. He needed a contact with a woman. He obviously thought that it would relieve him somehow. As a matter of fact, it did work.

He does admit in his testimony that he felt better and had a sense of relief immediately after the encounter. “She saved my life” will he say in his interrogation at the police station. [ 71 ] He also had a dispute with his father the same morning. He had refused to lend him money for an escort or a prostitute. He will blame his father more than once at the station for his arrest.

True, if the father had lend him the money, maybe he would never have approached the complainant, but on the other hand, why blame his father if everything was consensual? [ 72 ] The accused’s testimony has to be analysed in the context of the whole evidence. [ 73 ] First, the testimony of the complainant who is highly different on the essential elements of the three accusations than the testimony of the accused. [ 74 ] Second, Mr. Milligan’s testimony.

He was not privy as to what was said between the parties, but the initial behaviour of the accused led him to believe that the accused was directing the complainant by forcing her in a direction backwards. The subsequent body language and gestures that he saw are also incompatible with a friendly encounter. [ 75 ] Third, all the officers that were on the scene also had a feeling that something was wrong.

More particularly, both officer Tremblay and Mercier testify that the complainant either had cried or was crying and that she looked terrified, scared and frozen. [ 76 ] So, on a day when he was stressed and distressed, with already his mind set that a sexual relation would bring relief, the accused’s defense would ask the Court to believe that: − He crossed path with a young woman that he found good-looking and who was a total stranger. (That

part is true). − That he approached her and she then willingly accepted to go behind a building with him and hear his problems upon his invitation. − After hearing him out, and in order to help him with his problems, she willingly agreed to give him a sexual favour. − That this sexual favour translated into intercourse, which she willingly took part by a shed in the back of a parking lot. [ 77 ] This simply defies common sense. The accused is not believed. His testimony, taking into account the whole of the evidence, is not raising any reasonable doubt either at the second proposed step of W.D. His testimony is simply a tunnel vision where the evidence is distorted in favour of his

interpretation of the facts with no regards to the complainant. As an example, one cannot conclude that because someone does not shout of fight back, that it automatically translates as consent. But, this is exactly what the accused does as with all the other elements of his narrative. [ 78 ] We are not here in a classic “he says – she says” situation where the whole of the evidence lay in the complainant’s testimony and the accused’s denial. [ 79 ] We have an independent witness who saw part of the scene.

We have officers who arrived on the scene while the whole event was still in progress with the complainant not yet set free from the accused. We have the crime scene evidence found. We have the statements of the accused on the scene.

We have his videotaped interrogation that give us a clear idea as too what he was going trough at the time and his belief that a sexual relation would do him good. [ 80 ] This is clearly not a case where this Court would have to make a choice between the evidence of the Crown and the evidence of the accused or where the final issue lay on a credibility contest, both of which are prohibited by the Supreme Court [7] . [ 81 ] The Court believes the complainant testimony and retains it to analyse the essential elements of the infractions. [ 82 ] Sexual assault requires the proof of each of these essential elements.

− The accused intentionally applied force to the complainant. − That the complainant did not consent to the force applied. − That the accused knew that the complainant did not consent to the force. − That the force that was applied took place in circumstances of a sexual nature. [ 83 ] Intentionally means on purpose. It is obvious that the evidence retained by the Court establish that force was present and intentional. That evidence is first the complainant’s testimony. Mr. Milligan’s testimony is also accepted, including his

interpretation of the behaviour that he saw initially and his

interpretation of body language and gestures that he saw when both were at the back of the building. [ 84 ] The evidence is also without reasonable doubt that the accused knew that the complainant did not consent to the force applied, and neither that she consented to the sexual nature of that force. [ 85 ] All the essential elements of that infraction have been proven without reasonable doubts. [ 86 ] Consequently, the accused is to be declared guilty of the infraction of sexual assault. [ 87 ] Kidnapping requires that the complainant be: − Kidnapped by the accused. − That the accused kidnapped the complainant with intent to cause her to be confined or imprisoned against her will. [ 88 ] Therefore, it requires that the accused unlawfully took the complainant and carried her away, by force or fraud, against the complainant’s will, to another place. [ 89 ] To carry someone means to move the person or cause that person to move from one place to another. [ 90 ] To confine someone is to physically restrain them against their wishes and involves restriction of the freedom of the person to move as he/she wishes. [ 91 ] All these elements are present here. [ 92 ] The accused clearly moved by force the complainant from the sidewalk to the back of the building.

It was against the complainant’s will. And the intent was definitely to physically restrain her there and prohibit her to move as she wished. [ 93 ] It therefore flows that the accused has to be declared guilty of that infraction also. [ 94 ] Finally, unlawful confinement requires: − that the accused intentionally confined the complainant and − that the confinement was without lawful authority. [ 95 ] The definition of confinement is the same as above. It is clear that the accused had the intent to confine the complainant as per the definition, once he had kidnapped her.

It is also obvious that the circumstances in evidence are not ones that the law permits or allows and are therefore unlawful. [ 96 ] Accordingly, the accused is also declared guilty of that infraction. [ 97 ] In 2012, the Supreme Court of Canada [8] ruled that “kidnapping is not restricted to the victims initial taking and movement, while leaving the victim’s ensuing captivity to the comparably less serious crime of unlawful confinement”. [ 98 ] In other words, kidnapping only ends when the victim is freed. [ 99 ] Applied here, it is clear that the unlawful confinement was the result of the kidnapping, even though the infraction of unlawful confinement was also present after the initial taking and movement until the complainant was freed, as per in Vu. [ 100 ] The rule prohibiting multiple condemnations will therefore apply.

That rule also directs that the most serious of the two crimes that might have the same factual foundation be retained while a stay of proceeding is to be directed on the lesser crime. [ 101 ] The above judgment of the Supreme Court is clear as to which one of the two infractions is the lesser crime. [ 102 ] A stay will consequently be ordered on count 3 (unlawful confinement). FOR ALL THESE REASONS: [ 103 ] DECLARES the accused guilty on all three counts. [ 104 ] In application of the rule prohibiting multiple conviction for the same act: [ 105 ] ORDERS a stay of proceeding on count three.

__________________________________ RICHARD MARLEAU, J.C.Q Me Annie-Claude Chassé Counsel for criminal and penal prosecutions For the Prosecutor Me Yves Tétrault For the accused Dates of hearing: October 6, 8, 9, 10 and 20, 2014