2018 QCCA 1043, 2018 QCCA 1043

Francis c. R. 2018 QCCA 1043 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006314-163, 500-10-006315-160 (500-01-122174-151) MINUTES OF THE HEARING DATE: June 7, 2018 CORAM: THE HONOURABLE MARTIN VAUCLAIR , J.A. claudine roy , J.A. suzanne gagné , J.A. APPELLANT COUNSEL LINA MARYANNE FRANCIS Mtre BENJAMIN WILNER RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre CAMILLE BOUCHER (Director of Criminal and Penal Prosecutions)

On appeal from a judgment rendered on October 19, 2016 and a sentence pronounced on November 22, 2016 by the Honourable Marie-Josée Di Lallo, of the Court of Québec, Criminal and Penal Division, District of Montréal. Motion to seek leave to appeal from sentence. DESCRIPTION : 500-10-006314-163 Conviction – art. 267(

b) and 272(1)

c) of the Criminal Code 500-10-006315-160 Sentence – Motion seeking to leave to appeal from sentence Clerk: Philippe Charette Courtroom: Pierre-Basile-Mignault HEARING 10:21 Commencement of the hearing. Identification of counsel. 10:22 Submissions by Mtre Wilner. 10:47 Recess. 11:00 Resumption of the hearing. 11:01 BY THE COURT: judgment – see page 3. Conclusion of the hearing. Philippe Charette Clerk

BY THE COURT JUDGMENT [1] The appellant appeals from a judgment rendered by the Court of Québec (Judge Marie-Josée Di Lallo), District of Montreal, onOctober 19, 2016, declaring the appellant guilty of one count of assault causing bodily harm and one count of sexual assault causingbodily harm. [2] The appellant also seeks leave to appeal from a sentence rendered by the same judge on November 22, 2016, ordering asuspended sentence with a three-year period of probation accompanied by 200 hours of community service.

That application wasdeferred to this panel: 2016 QCCA 2124. [3] The appellant has desisted from her first two grounds of appeal and pleads, through her two final grounds of appeal, that thejudge erred in concluding that a sexual assault had occurred because she failed to consider the context in which the assault took place andfailed to give adequate reasons for her decision. [4] After living together for five years, the appellant and the complainant developed a friendly, affectionate life together. Thecomplainant sponsored the appellant for immigration purposes.

Because the appellant worked nights and the complainant worked days,the couple shared a bed, but at different times. Their relationship had deteriorated several years before the events. A few days prior to theevents, the complainant had told the appellant that he was seeing someone else; this made the appellant angry. [5] On May 28, 2015, while the complainant was still in bed, the appellant came home from work, yelling and angry because thecomplainant was seeing someone else. She threw herself at him and grabbed his testicles, squeezed them tightly and yanked on them.She then tried to strangle him.

The appellant was stronger than the complainant, but he was ultimately able to get away, run downstairsand call the police. At first, he mentioned only the injuries to his neck. He later realized there was blood on his underwear and he calledthe police back. Pictures were taken. [6] At trial, the appellant denied the assault and the judge rejected her version of the facts. On appeal, the conclusions of fact madeby the trial judge are not contested.

In this context, the appellant is nevertheless of the view that a reasonable person could not concludethat the assault was sexual in nature, other than with respect to the part of the body being touched: R. v. Chase, [1987] S.C.R. 293(“Chase”). The contact was not of a sexual nature and no pleasure or sexual gratification was sought. The appellant is also of the viewthat the judge did not explain how the context of jealousy was sufficient to arrive at this conclusion. [7] The proposed

interpretation of the events and of the sexual assault is overly narrow. Certainly, when sexual gratification ispresent, the sexual nature of the assault practically flows from the conduct itself: Chase, p. 302. However, sexual assault is also, andperhaps above all,

an act of violence and physical dominance: a violation of the sexual integrity of the victim. [8] Often, [TRANSLATION] “sexual desire has little to do with it” as authors Julie Desrosiers and Geneviève Beausoleil-Allardwrite in their book L’agression sexuelle en droit canadien, 2e ed., EYB, 2017, at p. 38 (see also pp. 6 and 37) (“Desrosiers - Beausoleil-Allard”). [9] The case law establishes that the [TRANSLATION] “intention to humiliate the victim and affirm one’s own control” may besufficient: see Desrosiers - Beausoleil-Allard, pages 63 to 65. The decisions R. v. V. (K.B.), (SCC), [1993] 2 S.C.R. 857and R. c.

Bernier, (QC CA), [1997] R.J.Q. 2404 (C.A. Qc.) are good illustrations of this. [10] Given the absence of explanations at trial to the appellant’s conduct, who denied the assault altogether, the judge did not err byinferring from the jealousy developing within the couple that the assault, targeting the complainant’s testicles, was a sexual assault. [11] True, the judge’s decision to this end was brief, but it must also be said that the sexual nature of the conduct was not contestedor at trial.

That being said, the decision is intelligible and allows us to understand why the judge arrived at her conclusion: PointejourSalomon c. R., 2011 QCCA 771, par. 18-28; Loukens c. R., 2009 QCCA 1718, par. 78-79; R. v. R.E.M., 2008 SCC 51 , [2008] 3S.C.R. 3; R. v. Walker, 2008 SCC 34 , [2008] 2 S.C.R. 245, par. 20. FOR THESE REASONS, THE COURT: [12] DISMISSES the appeal from the verdict; [13] DISMISSES the application for leave to appeal from the sentence.

MARTIN VAUCLAIR, J.A. claudine roy, J.A. suzanne gagné, J.A.