2011 QCCA 230, 2011 QCCA 230

M.D. c. R. 2011 QCCA 230 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002477-094 (415-01-016849-075) DATE: February 11, 2011 CORAM: THE HONOURABLE LOUIS ROCHETTE, J.A. BENOÎT MORIN, J.A. JEAN BOUCHARD, J.A. M. D. APPELLANT – accused v.

HER MAJESTY THE QUEEN RESPONDENT - prosecutrix CORRECTED JUDGMENT [ 1 ] On January 28, 2011, the Court rendered a judgment, the first paragraph of which reads as follows: [ translation ] [1] The appellant appeals from a judgment of the Court of Quebec, Criminal and Penal Division, District of Arthabaska (the Honourable Judge Richard Poudrier), rendered on December 3, 2009, that found the appellant guilty on one count of sexual interference against a child under the age of 14 years (

section 151 of the Criminal Code ). [ 2 ] The appellant, however, was found guilty of sexual assault ( section 271(1) (

a) of the Criminal Code ) and not of sexual interference against a child under the age of 14 years (

section 151 of the Criminal Code ). [ 3 ] This error should be corrected. FOR THESE REASONS, THE COURT: [ 4 ] CORRECTS the judgment of January 28, 2011, replacing the first paragraph with the following: [ translation ] [1] The appellant appeals from a judgment of the Court of Quebec, Criminal and Penal Division, Dustrict of Arthabaska (the Honourable Judge Richard Poudrier), rendered on December 3, 2009, that found the appellant guilty on one count of sexual assault ( section 271(1) (

a) of the Criminal Code ). LOUIS ROCHETTE, J.A. BENOÎT MORIN, J.A. JEAN BOUCHARD, J.A. Mtre Guy Boisvert For the appellant Mtre Jean-François Bouvette

Criminal and penal prosecutor For the respondent M.D. c. R. 2011 QCCA 230 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002477-094 (415-01-016849-075) DATE: January 28, 2011 CORAM: THE HONOURABLE LOUIS ROCHETTE, J.A. BENOÎT MORIN, J.A. JEAN BOUCHARD, J.A. M. D. APPELLANT – accused v. HER MAJESTY THE QUEEN RESPONDENT - Prosecutrix JUDGMENT [1] The appellant appeals from a judgment of the Court of Quebec, Criminal and Penal Division, District of Arthabaska (the Honourable Judge Richard Poudrier), rendered on December 3, 2009, that found the appellant guilty on one count of sexual interference against a child under 14 years of age (

section 151 of the Criminal Code ). [2] The appellant stood trial on four counts of sexual interference and sexual assault against two alleged victims, his nephew and his niece, X and Y: [ translation ] 1. Between June 1, 2006, and December 31, 2006, at City A, district of Arthabaska, did, for a sexual purpose, touch part of the body of X (1998 – ...), a person under the age of fourteen (14) years, thereby committing the indictable offence set out in

section 151 of the Criminal Code . 2. Between June 1, 2006, and December 31, 2006, at City A, District of Arthabaska, did sexually assault X (1998 – ...), thereby committing the indictable offence set out in section 271(1) (

a) of the Criminal Code . 3. Between June 1, 2006, and December 31, 2006, at City A, district of Arthabaska, did, for a sexual purpose, touch part of the body of Y (1995 – ...), a person under the age of fourteen (14) years, thereby committing the indictable offence set out in

section 151 of the Criminal Code . 4. Between June 1, 2006, and December 31, 2006, at City A, District of Arthabaska, did sexually assault Y (1995 –...), thereby committing the indictable offence set out in section 271(1) (

a) of the Criminal Code . [3] The first two counts concern the child X, who was eight (8) years old at the time. Following his trial, the appellant was acquitted on these counts. [4] The other counts concern the child Y, who was eleven (11) years old at the time. Following the trial, the trial judge convicted the appellant on the fourth count and ordered a conditional stay of proceedings on the third count pursuant to the rule against multiple convictions for the same act. [ 5 ] In his factum, the appellant submitted the following four questions: [ translation ]

1. Was the trial judge justified in excluding the videotape of the appellant’s interrogation adduced by the prosecution? 2. Did the trial judge correctly apply the rules governing the assessment of credibility and the contradictory versions? 3. Did the trial judge render a judgment wherein the appellant could clearly understand the reasons for his decision? 4.

Did the trial judge assign too much weight to the appellant's criminal record in assessing his credibility? [6] Concerning the first ground of appeal, it should be noted that the respondent acknowledges that the judge erred in excludingthe videotape of the interrogation that took place on May 29, 2007, which it had wished to file as evidence. [7] The judge, who viewed this interrogation, excluded it from the evidence for the following reasons:

(1) The interrogation took place during the administration of a lie detector test, the results of which are not admissible to establish theguilt of the accused;

(2) An evidentiary rule prohibits parties from filing evidence aimed at bolstering the credibility of their own witnesses. [8] According to R. v.

Oickle, 2000 SCC 38 , [2000] 2 S.C.R. 3, even if the results of a lie detector test are inadmissiblein evidence in criminal matters, this does not render the interrogation carried out in that context inadmissible. [9] Moreover, because it was the prosecution and not the accused who adduced the videotaped interrogation, this is not a casewhere one party hoped to use such evidence to bolster the credibility of its own witnesses.[1] [10] The two reasons given by the judge to exclude this evidence are therefore erroneous. [11] The respondent maintains, however, that this error did not prejudice the appellant or undermine the fairness of the trial andthat the appeal should therefore be dismissed under subparagraph 686(1)(b)(iii) of the Criminal Code. 686.

(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminallyresponsible on account of mental disorder, the court of appeal ... (

b) may dismiss the appeal where ... (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided infavour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, ... [12] In R. v. Arradi,[2] the Supreme Court of Canada stated the following regarding this provision: There are two classes of errors of law that lead to the application of that provision. The first consists of harmless error or minor errorshaving no impact on the verdict.

The second "encompasses serious errors which would justify a new trial, but for the fact that theevidence adduced was seen as so overwhelming that the reviewing court concludes that there was no substantial wrong or miscarriage ofjustice" (Khan, supra, at para. 26). The test is whether "the verdict would necessarily have been the same if such error had not occurred"(R. v. Bevan, (SCC), [1993] 2 S.C.R. 599, at p. 616 (per Major J.), citing Colpitts v. The Queen, (SCC),[1965] S.C.R. 739, at p. 744 (per Cartwright J.)).

In other words, the "appellate courts will maintain a conviction in spite of the errors oflaw where such errors were either minor in themselves or had no effect on the verdict and caused no prejudice to the accused" (Khan,supra, at para. 29). [13] Upon reading the trial judgment and the transcript of the videotaped interrogation, and bearing in mind the failure to file thetrial transcripts, the Court is of the view that the verdict would have been the same had the judge not excluded the videotapedinterrogation, and that there was no substantial wrong or miscarriage of justice as a result of the exclusion. [14] Simply by way of example, the following is how the judge remarked upon the appellant's testimony regarding an event thattook place on November 29, 2006: [translation] In this respect, how could the eleven (11)-year-old old victim Y have done as the accused alleges and, out of the blue, assault her uncle,who was sleeping on the sofa in the living room, when he had never spoken of acts of a sexual nature with her and she had never beforeinitiated such acts?

This seems highly unlikely; it is unreasonable and makes no sense, and it is inconsistent with the evidence as a whole. [15] Before this, the judge had stated the following regarding the same testimony: [translation]

Continuing to discuss the event, he stated, "After I sat down on the couch, I told Y not to forget to go to bed a half an hour earlier." And that's what...what woke him is that X was coming up behind him and talking, saying that he wanted, as he was coming up... he seemed to be coming upstairs at that point, from the basement, he said he wanted to talk to him. According to him, Y was sitting beside him at that moment, even though, when he arrived in the living room, she was sitting on the chair. He realized...he didn't realize.

When he got up to take X back downstairs, as he was standing up, he realized right away that his jeans were undone, that his belt was unbuckled, that his button was undone, and that his zipper was down. He didn't realize it. This corroborates Y's version. He says that he did not notice it ... it corroborates Y's version about the belt, the button, and the zipper. He noticed it only when he stood up.

He said to Y, "Why are my pants undone?" According to him, Y was uncomfortable and said, "You were sleeping." He answered, "I wasn't dreaming, come on." He fastened his pants and went to see X. [ 16 ] This is precisely one of the crucial events about which the appellant spoke during the videotaped interrogation of May 29, 2007, in which he said essentially the same things as the judge reported in his judgment. [ 17 ] The first ground of appeal should therefore be rejected, on the basis of subparagraph 686(1)( b )(iii) of the Criminal Code . [ 18 ] As for the second ground, the respondent correctly points out that it should be rejected because the appellant simply filed a notice of appeal without submitting a motion for leave to appeal.

The second ground of appeal, however, does not raise a pure question of law and consequently leave for appeal must be granted under subparagraph 675(1) ( a )(ii) of the Criminal Code . [ 19 ] Moreover, the appellant has not demonstrated that the trial judge committed a palpable and overriding error in the assessment of the evidence regarding the credibility of the witnesses and the analysis of the contradictory testimony. [ 20 ] The second ground of appeal is rejected. [ 21 ] In his third ground of appeal, the appellant argues the insufficiency of the trial judge's reasons. [ 22 ] In R. v.

Burns , the Supreme Court of Canada defined the scope of such an argument: The judge is not required to demonstrate that he or she knows the law and has considered all aspects of the evidence. Nor is the judge required to explain why he or she does not entertain a reasonable doubt as to the accused's guilt. Failure to do any of these things does not, in itself, permit a court of appeal to set aside a verdict. This rule makes good sense. To require trial judges charged with heavy caseloads of criminal cases to deal in their reasons with every aspect of every case would slow the system of justice immeasurably.

Trial judges are presumed to know the law with which they work day in and day out. If they state their conclusions in brief compass, and these conclusions are supported by the evidence, the verdict should not be overturned merely because they fail to discus collateral aspects of the case. [3] [ 23 ] Furthermore, in R. v. Gagnon , the Supreme Court of Canada added: [4] 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. [ 24 ] In this case, the trial judge analyzed the evidence as a whole and explained his assessment of the testimony, the rules applicable to such matters, and the burden of proof on the prosecution. [ 25 ] The third ground of appeal should therefore also be rejected. [ 26 ] Finally, in his fourth ground of appeal, the appellant alleges that the judge assigned too much weight to his prior convictions for fraud in the assessment of his credibility. [ 27 ] In Bouillon v.

R ., the Court of Appeal noted that evidence of a criminal record is of limited value at the stage of the trial on the issue of guilt but that it may be used to assess the credibility of an accused. [5] [ translation ] [9] As for the fact that the trial judge found the appellant guilty of the offences by relying on evidence of propensity based on the appellant's criminal record, an analysis of the record shows instead that the trial judge took into account the limited utility of such evidence by indicating clearly that criminal records could not be used as proof of character but that they may nevertheless be a factor by which credibility is assessed. [10] This approach is consistent with the law concerning the use of such evidence.

Moreover, it was the appellant who chose to provide explanations and justifications for each of the incidents, and this element could be used to assess his credibility. [11] In the circumstances, given the evidence as a whole and the credibility the judge assigned to the various witnesses, the verdict contains no overriding error justifying the intervention of the Court. [ 28 ] In his decision, the trial judge pointed out that it was the appellant himself who raised at trial the issue of his prior convictions, for which he had been sentenced on December 14, 2005.

The appellant lied to his social circle during that period and admits that he was a manipulative person at the time. [ 29 ] The judge took the appellant's criminal record into consideration in the manner he was required to, in accordance with the

case law. [ translation ] The accused admitted at that moment, and he himself talked about it without having been asked any questions in this respect, he was the one who brought up the issue. And we must take it into account with respect to his credibility. ... It was the accused himself who said, without having been asked any question, that he was a manipulative person at the time ... The Court repeats, the accused has a criminal record. That does not automatically mean that he will be found guilty because of it.

But the Court must take it into account in terms of the overall credibility that he should be granted. He has admitted to having been a manipulative person, and this was at a time shortly before the alleged events. This greatly affects the credibility of the accused's testimony, which the Court considers on the whole to be unreliable and implausible in light of the evidence as a whole. [ 30 ] The Court is of the view that, ultimately, the trial judge correctly dealt with the issue of the appellant's prior convictions for fraud, and that the fourth ground of appeal must fail.

FOR ALL THESE REASONS, THE COURT: [ 31 ] DISMISSES the appeal. LOUIS ROCHETTE, J.A. BENOÎT MORIN, J.A. JEAN BOUCHARD, J.A. Mtre Guy Boisvert For the appellant Mtre Jean-François Bouvette Criminal and penal prosecutor For the respondent Date of hearing: January 24, 2011