r v. Luis, 2012 QCCQ 9438

R. c. Larenas-Coloma 2012 QCCQ 9438 COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL N o : 500-01-047588-105 DATE: 13 September 2012 _____________________________________________________________________________ BEFORE THE HONOURABLE PATRICK HEALY, J.C.Q. _____________________________________________________________________________ THE QUEEN Prosecutor v.

Luis Alberto LARENAS-COLOMA Accused _____________________________________________________________________________ JUDGMENT _____________________________________________________________________________ [ 1 ] Mr. Larenas-Coloma is charged with one count of harassment between 16 October and 5 November 2010 and one count of assault between 1 June and 30 June 2010. Both counts arise from his relationship with the complainant B.M. [ 2 ] The parties agree that the outcome of this case will be determined by the application of the principles stated in W.(D.) [1] and related jurisprudence.

They also agree that, based upon the evidence before the court, a finding of guilt on the two counts before the court is “possible.” The defence submits, however, that the evidence on the whole of the case does not come up to proof beyond reasonable doubt. [ 3 ] A

summary statement of the factual context is necessary to begin. Relations between the complainant and the accused began early in 2010 and for all practical purposes ended on 16 November 2010 when the complainant informed Mr. Larenas-Coloma by telephone that the relationship was finished. The relationship was fractious from beginning to end. The complainant testified that the accused was controlling. She testified that on more than one occasion in the spring of 2010 Mr. Larenas-Coloma intentionally applied physical force to her person without her consent. This is the basis of the count of assault.

She testified as well that after she put an end to their relationship on 16 November Mr. Larenas-Coloma communicated with her repeatedly and by various means, most notably by persistent telephone calls several days later. This is the basis of the count of harassment. [ 4 ] Having regard to the three questions posed in W.(D.) , let me say at once that this is not a case in which I believe the defence evidence or disbelieve the prosecution evidence.

On an assessment of the evidence of the whole, including the assertions in the testimony of the witnesses and a consideration of their credibility, I am obliged to acquit Mr. Larenas-Coloma because I am unable to conclude that on the whole of the evidence at the end of the case proves the two charges beyond reasonable doubt. Mr. Larenas-Coloma might possibly be guilty in fact of one or both offences charged against him and, as the parties agree, he might possibly be innocent in fact of one or both.

But in law the presumption of innocence dictates that possible or even probable guilt is not enough [2] and that there must be an acquittal if the whole of the evidence does not prove guilt beyond reasonable doubt.

As the Supreme Court has repeatedly stressed, that standard is high. [3] My reasons for the conclusion that a reasonable doubt subsists can be stated briefly with respect to each charge. [ 5 ] With respect to the count of harassment, the evidence of the complainant and the accused provides more than an air of reality for the assertion that after the final rupture of relations by telephone on 16 November Mr. Larenas-Coloma had reason to believe that the complainant expected him to communicate with her by telephone on the ensuing Friday concerning the return of some personal belongings.

He admits that he made persistent attempts to reach her but in the circumstances explained in her testimony and in his there clearly remains a reasonable doubt whether his communications were initiated with an intention to harass or with recklessness as to effects of harassment by such conduct. Even if the complainant was fearful as a result, and I will accept that she was, the offence cannot be proved to the requisite standard of persuasion if there remains a reasonable doubt as to the element of intention or recklessness as to the harassing effects of a person’s communications.

In her evidence the complainant referred vaguely on at least three occasions to a court order that compelled Mr. Larenas-Coloma not to communicate with her but neither the existence of such a condition or its terms this condition was not otherwise put in evidence. If it were, it might have had a significant effect concerning the element of fault. I repeat, however, that the evidence as presented does not dispel all reasonable doubt that Mr. Larenas-Coloma genuinely believed that the complainant expected him to telephone her concerning the retrieval of his effects.

On this specific point, the second question considered

in W.(D.) compels an acquittal because Mr. Larenas-Coloma’s testimony leaves me with a reasonable doubt. [ 6 ] As already noted, the evidence suggested that after the rupture on 16 November Mr. Larenas-Coloma communicated with the complainant on numerous other occasions and by various means, including telephone and social media. This might be true but the evidence on this point is not clear or cogent enough to eliminate reasonable doubt.

Once again, I do not affirm that these allegations are baseless: I affirm only that the evidence concerning the nature and timing of these alleged communications fails to persuade me beyond reasonable doubt. Given this doubt on the nature and timing of such communications, it is also impossible to conclude that if they occurred they were undertaken with the requisite element of fault. Thus an acquittal on the count of harassment is also compelled by a consideration of the third question posed in W.(D.) . [ 7 ] The same general conclusion explains my conclusion concerning the count of assault.

The complainant referred in her testimony to various incidents of physical aggression toward her by the accused. For example, she referred expressly to being bitten by him and to being pushed with force onto a sofa during her pregnancy. I have no basis on which to challenge the credibility of the complainant with respect to these assertions. But their reliability, having regard to the burden of persuasion dictated by the presumption of innocence, is another question entirely.

Even on the abstract hypothesis that these allegations are factually true, the lack of cogency and detail relating to them do not permit the conclusion that assault in the period particularised in the count has been proved beyond reasonable doubt. The evidence suggests a possibility, or perhaps at most a probability, and neither of these standards will suffice for a finding of guilt.

I repeat therefore that an acquittal will not be entered with regard to the second count - because the evidence proves that the charge is false but because on the whole of the case fails to prove one or more instances of assault beyond reasonable doubt. Hence the third question considered in W.(D.) compels an acquittal. FOR THESE REASONS, Mr. Larenas-Coloma is acquitted of both charges. ____________________________________ PATRICK HEALY, J.C.Q. M e Christine Desjarlais For the prosecution M e James Dawson For Mr. Larenas-Coloma Date of hearing: 13 December 2011, 4 and 28 May 2012