r v. Lina Maryanne Francis, 2016 QCCQ 20548

R. c. Francis 2016 QCCQ 20548 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal Division No: 500-01-122174-151 DATE: October 19, 2016 ______________________________________________________________________ PRÉSIDING: THE HONOURABLE MARIE-JOSÉE DI LALLO, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutor v.

Lina Maryanne Francis Accused ______________________________________________________________________ JUDGEMENT RENDERED ORALLY [1] ______________________________________________________________________ JF1000 JF1000 JF1000 [ 1 ] It is a domestic violence case. Mrs Francis is accused of having caused bodily harm to Mr. RM in committing an assault and in committing a sexual assault on him.

She is accused of having grabbed with force his testicles and of having put her two hands around his neck and applied force on his throat, like if she wanted to strangle him. [ 2 ] JD2851 At the time of the incident they live in the same house. But they don’t describe their relationship in the same manner. [ 3 ] They met 5 years ago on a trip to Toronto. They decided to live together few months later. The accused worked for Mr. RM, “under the table” she says. She had to work three jobs to help him pay his debts and the mortgage. She also helped to refurnish the house. She works as a nursing aid.

She also took care of his son and his father. The accused describes herself as the common law wife of Mr. RM. They share the same bedroom. [ 4 ] On the other hand Mr. RM reports that it was not a loving situation. The accused had problems with immigration and he sponsored her. Years before the incident their couple deteriorated. At one point he asked her to move out. The accused did not want to quit. She wanted to pay her debts and have some savings before leaving, Mr. RM accepted. [ 5 ] The event happened on May 28 2015 around 7:45 in the morning when the accused came back from work. Mr. RM was still in bed.

She went to take her shower. She saw towels that were not supposed to be in the bathroom upstairs. She turned on the lights in the bedroom and asked Mr. RM why the towels were there. [ 6 ] That’s when the argument started. Then, they have each of them their own version of the facts of what happened after. The positions of the parties [ 7 ] The Defence pretends that Mr. RM his not credible when he says that the accused choked him to death. He exaggerates. He doesn’t remember in details what happened. The accused must be acquitted because she only reacted to the attack.

She was only defending herself when she scratched him on the neck. [ 8 ] The Prosecution pretends that on the contrary, Mr. RM is very credible. He has marks on his neck and on his testicles. Even police

officers saw the marks. The version of the facts given by the accused can not be believed. It is not plausible. The accused was jealous because she knew Mr. RM had a new girl friend and that is why she attacked his private parts. She must be found guilty on all the counts. The law [ 9 ] The crown has the burden of proving the guilt of the accused beyond a reasonable doubt. Every accused is presumed innocent. The Court must apply the teachings of the Supreme Court in R. v. W.D. [2] [ 10 ] If the Court believes the testimony of an accused, then he or she must be acquitted.

If, after considering all of the evidence, the Court does not believe an accused but is left in reasonable doubt by it, the Court must acquit the accused. [ 11 ] If, after considering all of the evidence, the Court is not left in doubt by the defence, then it should ask whether the evidence it does accept, satisfies beyond a reasonable doubt, that the accused is guilty. If, and only if, the answer to this question is yes, could the Court then convict the accused.

The Context [ 12 ] On May 28 the argument about the towels began when the accused came back from work. [ 13 ] The accused testified at the effect that Mr. RM pushed her, there was a fight and she had to defend herself. He jumped out of his bed and wanted to punch her in the face. The accused defended her by putting her hands in front of her face. If she touched Mr. RM on his neck it was quick, just a few seconds. That is probably why he has scratches around his neck. He then told her to leave and take her medication saying that she was “a psycho”.

Few minutes later, police officers arrived; she opened the door and was arrested. [ 14 ] Mr. RM testified he was still in bed when the accused arrived that morning. The accused was angry at that time because he had told her that he was seeing someone else. [ 15 ] The accused verbally attacked him, she was screaming, she came towards him. She squeezed and pulled his testicles for about 30 seconds. After, she put her hands around his throat and choked him. He then had hard time to breath. He thought she wanted to kill him. He lost breath.

He tried to get away from her. [ 16 ] When he managed to escape from her, he ran downstairs and called the police immediately. They arrived very fast. He was in a state of choc. He told the court that he was very close to death when the accused grabbed his throat. He screamed because he feared for his life. [ 17 ] Officer Loyer testified that she and her partner, Officer De l’Étoile, had a call concerning an assault by a co-tenant. They had a description of the lady who strangled the plaintiff. When they arrived the accused opened the door.

Officer Loyer went inside to see the victim and saw red marks, red scratches at the bottom of his neck. [ 18 ] A second police car arrived on the premises. Officer Tourangeau went directly to see the victim who was inside the house. He and his partner discussed with the victim in order to get his version of the facts. The victim was in a state of panic. Mr RM had hard time to breath. He saw the marks, very red markings on his neck like scratches. Officer Tourangeau saw also marks on his hand.

The officers had to wait for the victim to calm down before being able to take his statement. [ 19 ] Later in the day the victim Mr. RM saw a spot of blood on his underwear. The blood must have come from his testicle he says. It must have been scratched when she pulled and squeezed it. He then called back the police and reported the incident about the assault directly on his testicle. The Officer asked him to present himself at the police station the same day so they can take pictures of his injuries and take another statement. He went to the police station.

He did not to go to the doctor. [ 20 ] The pictures [3] taken of the victim at the police station in the evening on May 28 are admitted and filled. [ 21 ] Sergent detective Di Matteo testified. The accused made a statement she denies ever having strangled him. She admitted she spent some time at the Douglass Hospital, she suffered from depression and some form of schizophrenia. She admitted she was frustrated because she thought he was cheating on her. There was an admission that her statement was given freely and voluntarily. The analysis [ 22 ] From the beginning of her testimony the accused portrayed Mr.

RM as a person who took advantage of her. When she testified, she wanted the Court to know that Mr. RM had a lot of debts and that she was the one who reimbursed it. She wanted the Court to understand that Mr. RM made her work for his company without telling the government. He was caught and he had to payback. She was the one who paid for a lot of things in the house. She had three jobs at the same time.

The accused wants the Court to conclude that Mr RM is a bad person and he exploited her while she was still continuing raising his child and helping him with his sick father. [ 23 ] Then, on the other hand, she wants the Court to understand that they were a loving couple. She also wants to emphasis on the fact that her relation with Mr RM was good and they were living like a couple. She decided to move with him when he told her that he loved her few years ago. [ 24 ] She tries to explain somehow the reason for her inquiry about the towels not being in the right bathroom.

But why it is so important for her to know the reason why those towels were in the bathroom upstairs instead of being in the bathroom downstairs? The accused tried to answer vaguely the question. When asked about the fact that she knew that he was dating someone else, she tries not to

answer. When cross-examine directly on that matter the accused said that she did not think that he was cheating her and if the police officers reported that, they were all mistaken. They were French speaking so they must have misunderstood her because she spoke English. [ 25 ] She finally admitted that she “suspected” that he was seeing someone. He didn’t tell her, she was not sure and she was not mad about that. [ 26 ] She never admitted that she said to the officers that Mr. RM was cheating her. She wants the Court to believe that they were a loving couple and that he attacked her because she opened the lights.

The accused version is not credible and does not raise any reasonable doubt. [ 27 ] The victim Mr. RM testified calmly, he tried to answer the best as he could. They were things that he did not remember and he said so. He admitted that he had to reimburse a lot of money because he was caught by the government regarding his business. [ 28 ] Mr. RM described his relationship like a non loving situation. Years before the incident their couple deteriorates. He even asked the accused to move out but she asked him to stay, she wanted to pay her debts before leaving. Mr.

RM agreed. [ 29 ] Few days before May 28 he had told her that he was dating someone else. The accused did not like that. He asked her to move out again. She still wanted to stay at his house. [ 30 ] It is true that Mr. RM doesn’t remember every details of what happened that morning. He was in panic. He is corroborated by the Police officers. They say that he was in a state of choc when they arrived. Police officers saw red marks at the bottom of his neck. [ 31 ] It is true that Mr.

RM did not talk about the fact that the accused grabbed his testicles when he wrote the first statement but he was then very nervous and was more focused on the fact that he had hard time breathing, he taught she wanted to kill him, when she grabbed his throat. The officer Tourangeau said that he had to wait for Mr. RM to calm down before taking the statement from him. [ 32 ] It is not because he did not talk about the incident regarding his testicles that he cannot be believed. As soon as he noticed the blood on his underwear he called the police.

Pictures were taken the same day on May 28 at 10:40 in the evening. He wrote then immediately a second statement at the police station. [ 33 ] Police officer took pictures of all his injuries and pictures of his underwear. On the picture we see the marks at the bottom of his neck which corroborates the version of Mr RM and we have the marks on his testicles that also corroborates his version of the facts. Conclusion [ 34 ] The Court believes that the accused was not happy when asked again to leave the house because Mr. RM was dating someone else.

She was jealous, she attacked directly his genitals that morning and grabbed his throat. She felt probably betrayed but that is not a reason to attack Mr. RM. [ 35 ] Mr. RM gave a testimony without any animosity towards the accused. He is corroborated on many aspects by police officers. Did the accused wanted to kill Mr. RM? Does Mr RM exaggerate on that matter? It is possible, but that is how he felt at that moment. Mr. RM gave a very credible version. He is also reliable because we have pictures of his injuries that were taken the same day of the event.

FOR ALL OF THESE REASONS, THE COURT: Finds the accused guilty on all counts. __________________________________ MARIE-JOSÉE DI LALLO, J.C.Q. Me Camille Boucher The Attorney for the Prosecution Me Louis Peter Morena The Attorney for the Defence