2013 QCCQ 15088, 2013 QCCQ 15088

Unofficial English Translation R. c. Ciamala-Cibangu 2013 QCCQ 15088 JL1755 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Penal and Criminal Division” No.: 500-73-003975-139 DATE: December 5, 2013 ____________________________________________________________________ PRESIDING: THE HONOURABLE DENIS LAVERGNE, J.C.Q. ____________________________________________________________________ THE QUEEN Prosecutrix v.

DIEUDONNÉ CIAMALA-CIBANGU Defendant ____________________________________________________________________ JUDGMENT ____________________________________________________________________ [ 1 ] The defendant stands trial for the offence of having, on November 29, 2012, infringed

section 81 (

a) of the Canadian Aviation Security Regulations 2012 , [1] enacted under the Aeronautics Act , [2] which states: A person at an aerodrome or on board an aircraft must not falsely declare (

a) that the person is carrying a weapon, an explosive substance, an incendiary device or any other item that could be used to jeopardize the security of an aerodrome or aircraft or that such an item is contained in goods in the person’s possession or control or in goods that the person has tendered or is tendering for screening or transportation; … [ 2 ] In this case, the prosecution alleges that the defendant falsely declared to a screening officer at Montréal-Trudeau Airport that he had a weapon on his person when he underwent the usual pre-boarding search. [ 3 ] The defendant denies having done so. [ 4 ] Essentially, the legal issue involves weighing contradictory versions, in particular by assessing their reliability in light of all of the circumstances, to determine whether the prosecution has established beyond a reasonable doubt the constitutive elements of the offence, which are: • being at an aerodrome; • making a declaration; • a false declaration; • a declaration that its author knows to be false; • a false declaration about possessing a weapon. – THe SALIENT AND RELEVANT FACTS [ 5 ] Early in the afternoon of November 29, 2012, the defendant was in transit at Montréal-Trudeau Airport, where he had arrived at about 12:10 p.m. after a long flight from Africa.

[ 6 ] Residing in the Ottawa region, he was trying to take a flight to Ottawa that was earlier than the one he had originally planned to take at 4:20 p.m. He was to board his flight at 1:34 p.m. [ 7 ] When he reached the screening checkpoint, he was directed to lane number 7. In fact, seven lanes in this security area were open. [ 8 ] When the defendant walked through the metal detector, the alarm was triggered. The screening officer, Alexandre Monger, approached the defendant and told him that he could go through the metal detector again or undergo a search. [ 9 ] The defendant chose the second option.

He was concerned about missing his flight and believed that a search would take less time than having to retrace his steps and go through the metal detector again. Time was running out; according to the defendant, it was 1:20 or 1:25 p.m. He acknowledges that he was visibly annoyed at the screening officer whose search with a hand-held detector seemed never-ending.

He admits that the search also triggered an alarm, but he denies that it was triggered when the detector came in contact with his chest. [ 10 ] He states that he then spoke to the screening officer as follows: [ translation ] “Haven’t you found what you’re looking for on me yet, so can I leave?” [ 11 ] Carlo Boemio, the person in charge of training screening officers, was present and asked him to repeat what he had said. The defendant did so.

Police intervention ensued. [ 12 ] In substance, the matter concerns the defendant’s version of the essential facts of the sequence of events that led to the aforementioned offence. According to his version, there was no offence, and the police intervention that resulted from the alarm raised by Boemio in the circumstances related hereafter was both futile and unjustified. [ 13 ] Carlo Boemio and Alexandre Monger stated the following about the incident. [ 14 ] Carlo Boemio has been working at Montréal-Trudeau Airport since 2006.

He is responsible for training screening officers assigned to search passengers. [ 15 ] November 29, 2012, was a day devoted to the practical application of the theory that had been taught to the new screening officers. For the purposes of the exercise, Boemio was standing at lane no. 7 of the screening checkpoint for domestic flights. More specifically, he was assisting trainee screening officer Alexandre Monger. [ 16 ] He recounts that he saw the defendant walk through the metal detector.

The alarm was triggered by three places on the body of the defendant, who declined, as he confirmed in his testimony, to go through the metal detector again, preferring to submit to a search. [ 17 ] Monger performed the search. Boemio was standing about a metre from his colleague and watching the scene. It seemed to him that the procedure that Monger carried out took a little too long.

Meanwhile, according to Boemio, the defendant’s body language and sighing showed that he was definitely impatient, which the defendant acknowledges in his testimony. [ 18 ] Boemio states that the alarm on the hand-held detector went off when Monger passed it over the defendant’s chest. Monger asked the defendant whether he had something on him. [ 19 ] The defendant replied that [ translation ] “the weapon you’re looking for is there.” [ 20 ] Boemio immediately stepped forward and informed the defendant that such things must not be said.

He asked him whether he wanted to repeat what he had said, and the defendant did so. [ 21 ] Boemio acknowledges that at first he had not fully understood what the defendant had said. Because on this occasion he was willing to give him the benefit of the doubt, he asked the defendant to repeat himself. [ 22 ] In response to the defendant’s statement, Boemio implemented emergency measures. Police officers arrived and took the defendant into custody. A search of the defendant and his hand luggage proved fruitless.

No weapon was found. [ 23 ] On that November 29, 2012, Monger was in the last phase of his training as a screening officer at Montréal-Trudeau Airport under the supervision of his trainer, Boemio. [ 24 ] Monger states that when the defendant walked through the metal detector, the alarm went off. He approached him and passed the hand-held detector over his body. The alarm was heard when the detector passed over the left side of his chest, among other places.

When Monger moved his hand over the area that seemed suspicious, the defendant said, [ translation ] “the weapon you’re looking for is there.” [ 25 ] Monger confirms Boemio’s testimony about what happened next. Boemio went over to the defendant and asked him whether he wished to repeat what he had said, after pointing out to him that [ translation ] “there are serious things you cannot and must not say in an airport”.

After the defendant repeated the same words, Boemio sounded the alarm. [ 26 ] Like Boemio, Monger notes that the defendant was impatient and he had the impression, among other things, that the defendant did not understand the import of his words. He also confirms that the search of the defendant and his luggage turned up no weapon whatsoever. [ 27 ] The defendant himself also acknowledges this fact. His challenge of the offence concerns the statement that Boemio and Monger attribute to him. [ 28 ] Under cross-examination, Monger also confirmed that Boemio was standing about one metre from the scene of the search.

[ 29 ] In addition, he stated that the defendant pointed to the area of his chest where the weapon supposedly was. Confronted in this way with his previous statement to a police officer, made on the same day as the event, Monger admitted that at first he had omitted this fact. He stressed that he had clarified the statement at the police officer’s request. [ 30 ] He states that, aside from the defendant’s chest, he does not remember the places on the defendant’s body where the alarm on the hand-held detector was triggered.

In this respect, he states that he has a clear memory of this sequence of events because the defendant’s statement about the presence of a weapon immediately followed the detector’s contact with his chest. – ANALYSIS [ 31 ] The evidence of the offence is therefore based on the versions of the two screening officers at Montréal-Trudeau Airport. [ 32 ] The defendant challenges the truthfulness of their versions. He denies stating that he had a weapon on his person. [ 33 ] It is not for the Court to choose the version that seems most probable to it in the circumstances.

While bearing in mind the presumption of innocence, the Court must determine whether the facts demonstrate the defendant’s guilt beyond a reasonable doubt. Such demonstration is the duty of the prosecution. [ 34 ] Proof beyond a reasonable doubt does not mean, however, that the decision maker must have moral certainty that the defendant is guilty.

Such a standard is impossibly high. [3] [ 35 ] In addition, reasonable doubt must be based on reason and common sense; it must be derived logically from evidence or an absence of evidence and must not be imaginary or frivolous. [ 36 ] How does this apply to the case before us? [ 37 ] The defendant bases his challenge solely on his own testimony, which contradicts the versions of the two screening officers. [ 38 ] In this case, is this version likely to raise a reasonable doubt as to the circumstances as a whole, that is to say, a doubt based on logic and common sense? [ 39 ] The Court does not believe so.

The defendant’s version in no way raises such a doubt in the aforementioned circumstances.

The Court does not believe the defendant. [ 40 ] The only factual matter at issue here is whether the defendant stated that he had a weapon on his person. [ 41 ] The facts have already clearly established the other elements of the offence: - the presence of the defendant in an aerodrome; - a statement by the defendant that, of course, is not that reported by the screening officers; - the absence of any weapon on the defendant or in his luggage. [ 42 ] Therefore, it is not reasonable to infer, as the defendant asks the Court to do, that Boemio and Monger did not hear the defendant’s statement concerning the weapon about which both testified during the trial, a statement that was, moreover, repeated by the defendant. [ 43 ] Furthermore, Monger was completing his training under Boemio’s supervision.

It was entirely normal for him to take particular care with his duty in this important phase of his training, as Boemio implies when he states that Monger seemed to be taking his time in passing the detector over the defendant’s body. [ 44 ] Frankly, the defendant’s version quite simply does not have an air of reality. [ 45 ] First of all, what would have caused Boemio to sound the alarm and provoke a police intervention and the arrest of the defendant?

According to the defendant, the arrival of the police officers occurred shortly after he asked Monger whether he had finally found something and if they could let him leave, because he was exasperated by the time it was taking to search him. [ 46 ] The defendant himself is unable to explain the police intervention other than to argue that he had no reason to state that he had a weapon, which clearly was not the case. [ 47 ] This argument is illogical and cannot provide a basis for a defence. [ 48 ] Admittedly, the sequence of events involving the alarm given by Boemio and the arrival of the police does not prove that an offence was committed, but it is clearly inconsistent with the defendant’s denial that he made the alleged statement. [ 49 ] Moreover, the defendant confirms the screening officers’ versions of the following elements: - the detection system went off when he went through the metal detector and during the search with the hand-held detector; - he was showing signs of impatience; - he was asked to repeat what he had said. [ 50 ] If the versions of the two screening officers are reliable concerning those elements, why would they not be reliable with respect

to the statement? [ 51 ] The Court finds that the reliability of the versions of Boemio and Monger raises no ambiguity. Both were carrying out their duty, with the specific mandate of ensuring that any person travelling by plane does not have on his person anything that could be used to jeopardize the security of the other passengers or the public in general.

Therefore, there is reason to believe that screening officers are vigilant at all times but especially so when the detection system used to search a passenger triggers an alarm. [ 52 ] In this case, Monger provided precise and unshaken testimony about the crucial facts, namely, the alarm that sounded when he passed the detector over the defendant’s chest and the defendant’s statements. It is entirely plausible that the essential details of such an episode, which was unprecedented for Monger, left a strong impression on him.

His evidence was credible. [ 53 ] The defendant stresses that Boemio and Monger gave different descriptions of the scene of the statement with respect to his having pointed at his chest the same time. [ 54 ] If there is in fact any divergence at all between the versions, the Court sees none significant enough to cast doubt on the reliability of their testimony. [ 55 ] It must be borne in mind that the cornerstone of the offence is the word “weapon”, which both screening officers state they heard after the detection system indicated the likely presence of metal on the defendant’s person. [ 56 ] And even assuming for discussion purposes that Monger did not pass the hand-held detector over his chest as the defendant alleges, the declaration concerning the presence of a weapon does not become less probative in the circumstances. [ 57 ] The prosecution has proved beyond a reasonable doubt that the defendant did indeed state that he had a weapon on him, knowing that such a declaration was false, as it appears from both his own testimony at trial and a declaration in the document that he acknowledged having made at the time of his entry into Canada.

FOR THESE REASONS, THE COURT: CONVICTS the defendant guilty of a violation of

section 81 (

a) of the Canadian Aviation Security Regulations, 2012 on November 29, 2012. _________________________________ DENIS LAVERGNE, J.C.Q. Mtre Sara Moussa For the prosecution Dieudonné Ciamala-Cibangu Personally Date of hearing: September 13, 2013