2011 QCCQ 1692, 2011 QCCQ 1692

JS-0856 R. c. Morissette 2011 QCCQ 1692 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF QUEBEC LOCALITY OF QUEBEC “Criminal and Penal Division” No.: 200-01-139478-097 DATE: March 4, 2011 ______________________________________________________________________ THE HONOURABLE CAROL ST-CYR, J.C.Q., PRESIDING ______________________________________________________________________ The Queen Prosecutrix v. Louis Morissette Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ I.

Introduction [ 1 ] The accused, Louis Morissette, stands trial on two charges of having, on April 28, 2009, committed perjury (section 131 Cr. C. ) and attempted to obstruct the course of justice (section 139 Cr. C. ). [ 2 ] These charges arise from the testimony given by the accused in his capacity as an expert witness in psychiatry as part of the defence presented by Francis Proulx while on trial on a murder charge. [ 3 ] During his testimony, Dr. Morissette stated that he had listened to all the recordings of Francis Proulx’s testimony, namely, the examination in chief and the cross- examination.

It seems, however, that this testimony was given in two parts, one week apart, and that the accused could not have listened to the second part, namely, the cross- examination given on April 22 and 23, because the transcripts were not available at the time that he claims to have heard them. [ 4 ] When confronted with this fact during his cross-examination, he admitted lying, saying he had made a mistake. [ 5 ] The judge issued a special caution regarding this event, and the jurors convicted the accused Proulx. [ 6 ] Subsequently, he recommended that the prosecution ask the Sûreté du Québec to investigate Dr.

Morissette’ allegations. [ 7 ] This trial gave rise to a series of admissions and the filing of a number of exhibits, including the complete testimony of the accused Morissette given at the trial of Francis Proulx. [ 8 ] The prosecution completed its evidence by calling an office employee who was responsible for transcribing the court’s hearings in criminal matters. [ 9 ] The defence did not call any witnesses. II. Position of the parties

A) The prosecution [ 10 ] In oral argument, the prosecution presented a

summary of the highly publicized trial of Francis Proulx, accused of murder, and reviewed the issues involved, including the defence’s aim, through the testimony of Dr.

Louis Morissette, to lead the jury to give a verdict of not criminally responsible on account of mental disorder. [ 11 ] Counsel for the prosecution pointed out that in this important matter, the more the expert’s opinion is based on a significant number of facts entered in evidence, the greater its probative value. [ 12 ] This is the prosecution’s ground for arguing that the witness Morissette, a recognized expert for many years, could not have been unaware of the importance of the accused’s testimony to ground his opinion, which was prepared before the trial.

Moreover, throughout his testimony, he had referred to numerous documents consulted in addition to his eight hours of interviews with the accused Proulx. [ 13 ] The prosecution’s cross-examination flustered the witness to such an extent, however, that in an attempt to enhance his credibility, he made the blunder with which he is charged. [ 14 ] After admitting the importance of listening to all the evidence to confirm his opinion, the witness wilfully refused to admit that he did not practise what he preached, falsely and deliberately claiming that he had listened to Proulx’s entire testimony when it was physically impossible to have done so, at least with respect to Proulx’s cross-examination. [ 15 ] Given the importance of this case, the prosecution considers it impossible for the witness to have confused the audio transcripts of the trial in which he was involved with those of another case.

His explanation of the mistake he claims to have made cannot be considered credible because it is too vague and unclear. [ 16 ] In the view of the prosecution, Dr. Morissette had a motive, namely, to give his professional opinion probative value, and that is why he knowingly decided to lie and thereby attempt to mislead the Court and obstruct the course of justice.

B) The defence [ 17 ] The defence cautions the Court concerning some of the prosecution’s comments, which appear to criticize the accused for not supporting the explanation he gave to jurors of his mistake that he had confused the recordings with those in another file, namely, a case in Chicoutimi.

[ 18 ] The defence points out that the accused was never contradicted on this point, either in April 2009 or during the present trial, and that his only burden is to raise a reasonable doubt. [ 19 ] Counsel stated that, according to the evidence, the accused had access to part of Francis Proulx’s testimony and that, given his heavy workload at the time, this could have caused some confusion and, as a result, an error in good faith.

In the view of the defendant, we should resist the temptation to take a single sentence out of context by, for instance, ignoring the fact that the accused indicated at least three times that he was mistaken when he erroneously stated that he had heard Proulx’s complete testimony.

Admitting a lie arising from a mistake does not eliminate his good faith and give rise to criminal intent to mislead the Court. [ 20 ] In the view of the defence, the recantation made during his testimony is another sign of lack of intent, even if the Court found negligence or carelessness on the expert’s part. [ 21 ] This leads counsel for the defence to conclude that the testimony submitted as evidence by the prosecution contains all the elements that could help raise a reasonable doubt concerning the charges against Louis Morissette. III.

Issues [ 22 ] Considering as established the fact that the accused made a deceptive statement under oath, namely, that he had listened to the recording of part of Francis Proulx’s testimony when the transcript was not available, the Court must decide whether there is evidence beyond a reasonable doubt that the accused deliberately made this false statement, particularly from the point of view of the motive put forward by the prosecution. [ 23 ] If so, it must also be determined whether this false statement, wilfully made, was made with specific intent to mislead the Court. [ 24 ] The requirement that a deceptive statement be made knowingly must also be apparent from the evidence to support a conviction on the second charge.

IV.

Relevant facts entered in evidence [ 25 ] The parties have filed a series of admissions aimed at defining courtroom recording methods, how recordings can be heard, and the dates on which the requests for re-recordings, which are the subject of this dispute, were made. [1] [ 26 ] Certain retranscriptions identified as “data” can only be listened to on a computer and contain programs that provide an index specifically identifying listening times. [ 27 ] Retranscriptions identified as “audio” can be listened to using any media except an MP3 player. [ 28 ] The document also states that, during the jury trial, the accused Francis Proulx was examined on April 16 and 17, 2009, and cross-examined on April 22 and 23, 2009. [ 29 ] With regard to the cross-examination of April 22 and 23, 2009, it was admitted that Mtre Sophie Dubé, the attorney who assisted Mtre Jean Desjardins in defending the accused Proulx, made a request on April 23 for a rerecording of those two days and went to Office 1.05 on April 27 to pick up the transcripts she had requested.

Neither she nor Mtre Desjardins had access to the transcripts before that date. [ 30 ] In her testimony, Johanne Pichette, an office employee at the courthouse, explained the content of these admissions. She is responsible for audio recordings, transcripts of hearings of criminal trials, and re-recordings of hearings when requested by counsel. [ 31 ] To request a re-recording, a specific form is completed which identifies exactly which sections to copy.

For the trial of Francis Proulx, the witness submitted a bundle of eleven forms requesting copies of the court proceedings. [2] [ 32 ] She confirmed the two re-recording formats admitted by the parties, namely, the audio format and the computer format. [ 33 ] She stated that the form indicates the dates of the hearing, the hearing room and the times requested.

Once the transcript has been completed, a copy is given to the parties with the date written on it. [ 34 ] The documentary evidence shows that the re-recording of the cross-examination of Francis Proulx on April 16 and 17 was requested by both parties and given to them on April 17 and 20. [3] [ 35 ] With regard to the cross-examination of the accused on April 22 and 23, almost all of the retranscriptions were given to the various parties involved on April 27, with a first part given to the defence on April 22. [4] [ 36 ] The prosecution adduced the transcript of the testimony of Dr.

Morissette given on April 28, as well as the corresponding audio copy. [5] An audio copy of his testimony given the day before was also submitted. [6] [ 37 ] In his April 28 testimony, the expert explains that while preparing his opinion on Francis Proulx’s criminal liability, he met with him five times for a total of eight hours of interviews, in addition to consulting numerous documents that came, among other things, from the disclosure of evidence. [ 38 ] This is what enabled him to state that his report, dated December 18, 2008, matched the picture he had of the accused Proulx, while admitting that his professional opinion could have changed in light of new elements arising from, for instance, the accused’s testimony at his trial. [ 39 ] Taking his questions further, Mtre Rondeau, counsel for the prosecution, asked in cross-examination about the evidence on which the witness had based his testimony in chief given on April 27, the day before.

The exchange went as follows: [ translation ] Q : Dr. Morissette, apart from that, what is the other evidence you gave in your testimony yesterday as evidence in chief? A: Well, as I said, I heard Mr. Proulx’s testimony, Mr.

Proulx’s cross-examination, I had the disks. [7] [ 40 ] A short time later, the witness expressed some confusion about when the accused Proulx had testified, but he reiterated that he had listened to the examination of Proulx, which took place on April 16 and 17, and when asked when he had listened to this evidence, he answered: [ translation ] A: The first two, I got them at the beginning of…well, at the end, after his testimony…on Friday. Those were the first two disks.

Q: So that was Mtre Desjardins’ examination in chief ? [8] [ 41 ] Then, concerning the last two recordings, which contained the cross-examination, he stated that he had received them on either the Friday or Thursday preceding his testimony in Court. [ 42 ] Having said that he had heard the accused’s examination in chief on Monday or Tuesday of the previous week, he said the following about listening to the cross- examination: [ translation ] Q: OK. When did you listen to that?

A: I got it…I got it on Friday afternoon and I listened to it on the weekend, yesterday morning. Q: You listened to it on the weekend? A: I’m not proud of it. Q: Are you sure that you listened to it on the weekend, doctor? A: I listened to some of it then, and some of it when I was on my way this…yesterday morning. Q: Pardon, when? A: Part when I was on my way yesterday morning. Q: Yesterday morning. Where were you yesterday morning, doctor? A: At home, then from eight-thirty (8:30 a.m.) to eleven-thirty (11:30 a.m.), I was…I was on my way to Quebec City. Q: OK.

Am I right in saying that you live somewhere in the Quebec City area? A: Not at all. Q: OK. Do you live in the Montreal area? A: Yes. Q: OK. And you say that you listened to the evidence? A: Part, part, part of the evidence. Q: Where? A: In the car. Q: In your car. Dr. Morissette, what if I told you that these CD-ROMs cannot be listened to in a car, but only on a computer system. A: I don’t know what to say. Q: Can you explain that to me? A: I can’t say otherwise, well, I…it worked for me, I’ve got an MP3 in the car and…I can’t give you the technical details. Q: Dr.

Morissette, are you sure that you listened to the cross-examination by Mtre Landreville yesterday and on the weekend? A: I did yesterday. Q: Are you sure of that? A: I got it on Friday. Q: You got it on Friday from whom? A: From Mtre Desjardins. Q: How did he send it to you, doctor? A: I received it at Pinel. Q: You received it at Pinel. How? A: I didn’t…I didn’t check how it came. Q: And are you sure that it was the cross-examination? A: Well, it…I heard a woman’s voice, it wasn’t you, so that’s what I heard. Q: All right. What was this woman doing? A: Well, she’s asking… Q: Mtre Landreville?

A: I don’t know her…I don’t want to…now I know that it was Mtre Landreville. Q: Yes. A: But, so, I have that part. Whether I had the whole thing, I can’t swear, I don’t know how long it went on . Q: Doctor, if I told you that we did some checking this morning and learned that the rebuttal evidence was given out yesterday morning, late in the morning and only to our colleagues for the defence, what would you say?

A: I can’t…I can’t say any more than I’ve just said to you . [9] [ Emphasis added.] [ 43 ] Further to the last question, the presiding judge obtained a correction from counsel for the prosecution, Mtre Rondeau, that it was not rebuttal evidence, but in fact the cross-examination of the accused. [10] [ 44 ] In the absence of the witness and the jurors, details were given about the fact that only part of Proulx’ testimony could have been available the previous week.

As for the cross-examination, it would have been available only on April 27, although the defence suggests that part of it was available the afternoon of April 22. [11] [ 45 ] The judge then summarized the situation in the following manner: [ translation ] But he seems to say [referring to the witness Morissette] that he received the entire cross-examination last Friday, that he unfortunately spent the weekend listening to part of it, and heard the rest in his car on his way to Quebec City to take

part in this trial. I have been told, and you do not disagree, that the last part of the cross-examination was not

available to you and the other attorney until Monday morning. We may therefore conclude that he didn’t listen to it in his car on the way here. This is a sensitive point because it could create an unfortunate issue of credibility that could have a significant effect on the jury’s assessment of his testimony . [12] [ 46 ] After this observation, the cross-examination of the witness continued as follows: [ translation ] Q: So, Mr. Morissette, the question I asked you was to explain how you could have listened to Mtre Landreville’s cross-examination of Mr.

Proulx when the CD-ROMs were given to counsel for the defence only yesterday morning at 8:30 a.m. A: So, after your question, that…you’re right, I didn’t have them. I…I arrived here between a quarter to twelve (11:45 a.m.) and a quarter past twelve (12:15 p.m.) yesterday. Q: Yes. A : Mtre Desjardins made some summaries for me and played some excerpts, but I didn’t have them on the weekend. What I was listening to was another CD I had for another case, but I didn’t have them . Q: You didn’t have them, so you didn’t spend the weekend listening to the cross-examination, Dr. Morissette?

A: I heard…I heard…something, but it wasn’t in that case . [13] [Emphasis added.] [ 47 ] When questioned about the fact that he heard a woman’s voice when listening again, the witness Morissette said: [ translation ] A: That’s right, it was a case in Chicoutimi, it’s not the … Q: Ah, it’s a case in Chicoutimi ? A: Yes . [14] [Emphasis added.] [ 48 ] Counsel for the prosecution continued, saying: [ translation ] Q: I understand that you weren’t telling the truth, Dr. Morissette? A: I got mixed up. Q: You got mixed up?

A: Yes, because I’m doing… I’m doing a lot of cases. [15] [Emphasis added.] [ 49 ] The doctor repeated that he was listening to a CD that had nothing to do with the accused Proulx: [ translation ] Q: Is that what you’re telling us? A: No, that one’s an old case. Q: Pardon? A: It’s a case that I…it was a call…there were some 911 calls, then … Q: Dr. Morissette, a little while ago, I asked you the question, and you said… A : I made a mistake . Q: …while you were coming in from Montreal… A: I made a mistake. Q: …you were in your car, right… A: I thought it was that court case and it’s not the…it’s not true. Q: OK.

So you lied ? A: Yes, I lied about that. Q: You lied about that ? A: I made a mistake . Q: Is there anything else you lied about since the beginning of your testimony, Dr. Morissette? A: Not to my knowledge. Q: No. Dr. Morissette, can you tell us what you actually heard from the rebuttal evidence…excuse me, from the cross-examination, by Mtre Landreville, yesterday between a quarter to twelve (11:45 a.m.)? A: I can’t…I didn’t memorize it, but it was… Q: No? A: …basically a

summary, because I didn’t…it was just a few instants, it wasn’t… Q: It wasn’t important to you?

A: Well, yes, the

summary is important. Q: OK. A: If I could have, I would have…it would have been better if I had heard the whole thing. [16] [Emphasis added.] [ 50 ] In view of these explanations, Mtre Rondeau again asked the witness Morissette if he had actually listened to the examination. Mr.

Morissette replied in the affirmative and stated that he was certain that he had listened to the examination of the accused, Francis Proulx, on April 16 and 17. [ 51 ] The witness also added: [ translation ] A: I was interested in listening to the examination to see if it contained elements that would clash with what he had told me, which were really relevant, and in the final analysis, it's... after listening to it, would I change my opinion – because sometimes new facts… Q: Yes. A: … come up at the trial… Q: Yes. A: … which aren't there… or conversely, facts that you think will be there and they're not.

No matter, in listening to it, would I change my mind about the events between the fall of two thousand and six (2006) and May 1sixteenth (16th), two thousand and eight (2008)? My answer to that is no. Therefore… Q: Dr. Morissette, my question is as follows: You listened to the examination in chief of Mr. Proulx conducted by Mtre Desjardins? A: Yes. Q: That's what you're telling us? A: Yes. Q: You're certain of that? All of it..., you listened to all of it ? A: Yes . Q: You're sure ?

A: Yes . [17] [Emphasis added.] [ 52 ] Lastly, the presiding judge found it appropriate to issue additional directives to remind the jurors that it would be up to them to consider the fact that the witness acknowledged that he had not become familiar the cross-examination of the accused Proulx when the time came for deliberation. [18] V. Analysis

A) Legal concepts [ 53 ] To determine whether the facts adduced as evidence can justify the position taken by the prosecution, we must consider whether the essential elements of the offences have been proved according to the standard recognized for the analysis of circumstantial evidence. [ 54 ] If the evidence presented by the prosecution contains elements intended to support a logical solution other than guilt, the accused will be able to benefit to the same extent as if he had presented a defence. 1) Connection of the essential elements [ 55 ] The offence of perjury involves evidence of three essential elements, namely: – A false statement made under oath. – The declarant's knowledge that this statement was false when he or she made it. – The statement was made with intent to mislead. [19] [ 56 ] As for the offence of obstructing justice, it requires evidence of a wilful act accompanied by the intent to obstruct justice. [20] [ 57 ] Aside from the material elements, the two offences require that there be specific intent that must be proved beyond a reasonable doubt. [ 58 ] In Calder , the accused, contradicted by a witness concerning one of his statements, declared that his evidence, given more than a year after the events to which it related, was an honest statement of what he could remember. [ 59 ] In its judgment, the Supreme Court of Canada overturned the decision of the Court of Appeal of Alberta and acquitted Calder by specifying that despite evidence of the first element, namely a false statement under oath, there was no evidence of the knowledge of falsity or the intent to mislead. [ 60 ] For the Court, the evidence given by the accused may have been in error, even if it was questionable, but error alone provides no basis to infer the intent and knowledge necessary to support a conviction for perjury. [21] [ 61 ] In Hébert , the Supreme Court stated that even if the appellant had admitted that he deliberately lied while giving evidence, he could present as a defence the fact that he had no intent to mislead.

This idea is expressed by the Supreme Court as follows: “W hile it is true that someone who lies generally does so with the intent of being believed, it is not impossible, though it may be exceptional, for a person to deliberately lie without intending to mislead. ” [22] [ 62 ] Needless to say, evidence of knowledge of the falsity of the statement made under oath is paramount in determining the third element, the intent to mislead.

Consequently, once the first two elements are proved, the Court may deduce that the intent to mislead is also proved. [23] 2) Error, carelessness and intent to mislead [ 63 ] An error in judgment, a breach of ethics, inappropriate or unprofessional conduct, carelessness or negligence do not invariably lead to the conviction of someone accused of either perjury or obstruction of justice. [24] [ 64 ] In Besner , for example, the Court of Appeal of Quebec acquitted an accused who had falsely declared that he had no criminal record during cross-examination by the prosecution.

As part of his defence to a charge of perjury, Besner had stated to the trial judge that he had testified under stress, had misunderstood the question, answered

in a negligent manner, and had no motive to lie. The judge dismissed these claims, stating that even if the argument of negligence or carelessness had been accepted, which was not the case, the accused should nevertheless be found guilty of perjury. [ 65 ] Basing itself primarily on the absence of a motive to lie, the Court of Appeal found a lack of evidence of the intent to mislead. In that case, it was plausible that the appellant answered the question automatically, without any intent to mislead. Negligence or carelessness is not sufficient to constitute specific intent to commit perjury.

Even if the nature of Besner’s profession can ground an assumption that he gave a false answer, such an assumption may become subject to reasonable doubt. [25] [ 66 ] In R . v. Seath , the Court of Appeal of Alberta reiterated that error or ambiguity is not a foundation for an inference of the knowledge of falsity.

It points out that for perjury, the mens rea requires proof that the accused intended to perform the act that constitutes the actus reus of the offence, and that the accused made the false statement under oath in the express knowledge of its falsity, with intent to mislead. [26] [ 67 ] Boross , for its part, establishes the importance of adducing all of the accused’s testimony in which the deceptive statement was made in order to determine whether, despite the falsities, the testimony can show that they were not made wilfully. [27] [ 68 ] Thus a recantation during the testimony, without constituting a defence in itself, could at the very least raise a reasonable doubt as to the intent to mislead. [ 69 ] In this respect, the Court noted: The distinction lies in the scope of the qualifying statement.

Whether it is directed to an explanation of an earlier, unintended, false assertion as opposed to a mea culpa confession of an earlier and wilful deception, the sum of all the evidence taken must be weighed by the trier of fact to determine if intent to mislead has been proven. [28] [ 70 ] It is therefore open to the trier of fact to determine a lack of criminal intent through the accused's conduct and the explanations provided during his very testimony. An admission of error, without constituting a defence, may be used to determine a reasonable doubt with as to the mens rea. [29] [ 71 ] In R . v.

R.D ., after analyzing Boross , Wein J., of the Ontario Superior Court of Justice, states: A conviction for perjury does not necessarily result from the witness' admission that he lied under oath. The question of intention remains one for the trier of fact, on the perjury charge, even though it must be acknowledged that the admission will, in most cases, be powerful evidence. [30] 3) Motive and circumstantial evidence [ 72 ] For some time, the courts have considered that motive is not indispensible to proving intent.

They are two separate concepts. [ 73 ] Motive is not an essential element of a crime, but the absence or presence of motive may be construed positively or negatively with regard to the accused.

It is a question of fact that should be measured in light of all the circumstances entered as evidence. [31] [ 74 ] Evidence of motive may constitute circumstantial evidence that may establish the accused's intent when committing the act and his or her motivation to do something. [32] [ 75 ] Convicting an accused in the presence of such evidence, however, always implies that this evidence is compatible with such a finding and incompatible with any other logical solution; this illustrates the principle of the presumption of innocence. [33] [ 76 ] And it is here that a logical finding of guilt must be distinguished from an inference of guilt based on conjecture and speculation.

While conjecture is equivalent to speculation, logical inference must be a rational deduction based on evidence.

Evidence must establish a connection between the observed, proven facts and the result of the final deduction. [34] [ 77 ] Although the cumulative effect of various types of circumstantial evidence may, in the absence of evidence to the contrary from the accused, lead to a conviction, [35] the obligation to testify does not necessarily follow, as pointed out the author Louise Viau: [ translation ] This assertion does not mean that the accused must automatically testify, but rather that the accused should be included in the evidence of the prosecution, namely in the submission of the defence, suggesting a logical conclusion other than guilt . [36]

B) Application to the facts of this case 1) Evidence of the false statement under oath [ 78 ] Francis Proulx's testimony in chief, given on April 16 and 17, was available for listening on April 17 and 20. Therefore, the accused Morissette’s statement that he listened to it in the days following the hearing can be considered to be reliable, and it corresponds with the evidence submitted, in particular that given by the witness Pichette and the documents she has filed. [37] [ 79 ] It is quite another matter for Proulx's cross-examination on April 22 and 23.

Even though the request for retranscription was made almost daily, the admissions produced indicate that counsel for the defence took possession of it only on April 27. [38] Despite these admissions, the evidence shows some vagueness in Exhibit P-7I in particular, which seems to indicate that part of the cross-examination was delivered on April 22.

In fact, Mtre Desjardins's remarks during a discussion with the presiding judge and the Crown prosecutor suggest that he had part of the cross-examination in his possession on April 22. [39] [ 80 ] Here is how Mtre Desjardins put it: [ translation ] What I can tell you… what I can tell you is that we had a part of it. Not the entire thing; it's not the entire cross-examination that was delivered to me, if I recall correctly, only yesterday morning.

There is a part, actually, that was delivered yesterday morning and there is a part that was delivered before. [40] [ 81 ] In the Court's opinion, this remark of Mtre Desjardins raises the possibility of confusion. [ 82 ] Even if we consider that he had been delivered part of the cross-examination delivered, the witness could not, contrary to what he stated under oath, have listened to all of it before April 27, either during the weekend or in his car on the way to Quebec City to testify. [ 83 ] With regard to that aspect, his statement under oath is false. 2) False statement made wilfully with motive [ 84 ] Given this first finding, the Court must consider whether this false statement was made knowingly, motivated by the accused's desire to enhance the probative value of his professional opinion. [ 85 ] When he stated the first time that he had audio copies of the cross-examination by the Crown prosecutor, Mtre Landreville, the accused stated that he could not swear that he had received all of them. [41] [ 86 ] We may therefore observe that the witness tempered his statement that he had listened to the entire cross-examination.

Some uncertainty on the part of Dr. Morissette can be noted even before he is confronted with the vigorous cross-examination by Mtre Rondeau. This indecision can be explained in part by Mtre Desjardins' remarks, to which we referred previously. [ 87 ] In the view of the Court, another cause of confusion is the fact that the witness listened to the accused Proulx’s examination in chief. Assuming that not all of Proulx's testimony was available to Dr. Morissette, it is difficult to believe that an expert witness with his experience could honestly have made a mistake about this point.

That is not the case, however. [ 88 ] The Court accepts that he listened to the examination in chief.

The witness could therefore have confused the two excerpts and made a mistake, or in other words stated a falsity, but not deliberately. [ 89 ] Furthermore, when confronted with the fact that he could not have listened to the cross-examination when he said that he had, the expert immediately said that he [translation] “got mixed up” with another file from Chicoutimi, adding that he had listened to the recordings of the other file during the weekend and in his car and that he had mixed up the two because he had a lot of files to deal with. [42] [ 90 ] Even though such an assertion may seem surprising under the circumstances and suggest a lack of professionalism, the accused was in no way contradicted on that point. [ 91 ] Subsequently, admitting his error, he said several times that he had [translation] “made a mistake” and stated, at the prosecution's suggestion, that he had [translation] “lied.” [43] As pointed out by the higher courts, an error in judgment or negligence is not necessarily the same thing as knowledge of falsity, and it should be remembered that a witness can make a mistake and be sincere, even if his error is questionable. [44] [ 92 ] There is no denying that the expression [translation] “I lied,” if taken out of context, can be seen as a type of admission.

The accused's testimony must be analyzed in its entirety, however, in order to determine his intent and state of mind at the time he made the false statement. In this case, the Court finds that Dr. Morissette's admission of his mistake during the cross-examination constitutes a form of recantation. As we have already seen, this cannot be considered to be a defence, but it may, depending on the circumstances and in light of all the evidence, enable the Court to find that there is no intent. [ 93 ] The notions of the knowledge of falsity and intent to mislead are closely linked.

Indeed, in reaching the conclusion that the accused lied deliberately, it can be presumed that he did so with the intent to mislead the Court. [ 94 ] Other than in exceptional circumstances, this presumption may be difficult to rebut. [45] [ 95 ] If the evidence, however, raises a reasonable doubt as to whether the lie was deliberate and establishes that it was an error, there is no basis to infer the intent to mislead. [46] [ 96 ] Despite this finding, can it be deduced from the evidence as a whole, in light of an apparent motive, that the accused had intent to mislead?

Admittedly, the prosecution's argument has a certain appeal in that the accused's motive, i.e ., to enhance the probative value of his opinion, would show deliberate intent to mislead the Court as a means to this end. [ 97 ] The witness already has considerable experience in this area; he has worked as an expert witness in many cases and presumably is well aware of the importance of basing an opinion on established facts. [ 98 ] It should be remembered, however, that the expert testified about the sources on which his expert report was based for nearly two days.

He referred, inter alia , to the police report, the video examination of the accused, and an undercover officer's notes; he also testified at length about a drug called Effexor. [ 99 ] He was confronted with varying opinions concerning the effect of this drug on Proulx's mental state and gave very long explanations without seeming to be flustered by the cross-examination. [47] [ 100 ] In the eyes of the Court, it would be highly speculative, given the context in which the false statement was made, to find that it was deliberately made in an attempt to enhance a testimony.

The judge's directive at the trial is significant in this regard because the judge asked the jurors not to exclude the expert's testimony automatically because of his false statement and to consider the false statement from the proper perspective from which it should be viewed. [48] [ 101 ] In the eyes of the Court, this is not the only logical solution.

The evidence adduced gives rise to other logical alternatives that at least raise a reasonable doubt. [ 102 ] In short, even if the falsity affirmed under oath has been proved beyond a reasonable doubt, the Court considers that there is reasonable doubt as to the intentional nature of the lie on the part of the accused. [ 103 ] This finding is based on the analysis of the evidence that shows that there were two retranscriptions of Proulx's testimony that were delivered a week apart, and that the witness could have made a mistake after listening to the examination in chief by stating that he had listened to all of Proulx's testimony, therefore also including the cross- examination. [ 104 ] This possible confusion is in addition to the confusion from listening to a retranscription from a case having nothing to do with the one before us, in which the accused was also an expert witness. 3) The specific intent to mislead [ 105 ] As the Court has already noted, there is a direct connection between the knowledge of falsity and the intent to mislead. [ 106 ] This intent must therefore demonstrate a deliberate resolve to perform

an act that is known to be unlawful. But how can one infer such intent if there is a reasonable doubt as to whether the false statement was made deliberately? It is clear that this doubt must also apply to the intent. It would certainly not have the same effect in the opposite case. [ 107 ] Furthermore, it is noted that this finding also has consequences on the second charge.

The Court cannot conclude, beyond a reasonable doubt, that the accused did something wilfully to obstruct justice, even if his professionalism may be questionable. [ 108 ] In view of the foregoing, the accused Louis Morissette is acquitted of both charges against him. __________________________________ Carol St-Cyr, J.C.Q. Mtre Charles Levasseur Crown prosecutor Mtre Ronald Picard Counsel for the defendant Date of hearing: March 4, 2011