2020 QCCA 1557, 2020 QCCA 1557

Gul c. R. 2020 QCCA 1557 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-006985-194 (505-01-142309-166) DATE: NOVEMBER 19, 2020 CORAM: THE HONOURABLE MANON SAVARD, C.J.Q. MARK SCHRAGER, J.A. SIMON RUEL, J.A. RAFI MOHAMMAD GUL APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutor CORRECTED JUDGMENT (Re: Judgment rendered November 18, 2020) Order for non-publication of any information to establish the identity of the complainant or a witness under

section 486.4 Cr.C . [ 1 ] Considering that the Court did not indicate in its conclusions that the appellant should surrender to the prison authorities and the time limit for doing so, although that the matter was discussed during the hearing; FOR THESE REASONS, THE COURT: [ 2 ] CORRECTS the judgment dated November 18, 2020; [ 3 ] DECLARES that paragraph [4] should be read as paragraph [5], and ADDS a new paragraph [4] that should read as follows: [4] ORDERS the appellant to surrender to the prison authorities on or before November 27, 2020 at 4:00 P.M. MANON SAVARD, C.J.Q. MARK SCHRAGER, J.A. SIMON RUEL, J.A. Mtre Clara Daviault YVES MÉNARD AVOCATS INC.

For appellant Mtre Frédérique Le Colletter Director of Criminal and Penal Prosecutions For respondent Date of hearing: October 7, 2020 Gul c. R. 2020 QCCA 1557 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-006985-194 (505-01-142309-166) DATE: NOVEMBER 18, 2020 CORAM: THE HONOURABLE MANON SAVARD, C.J.Q. MARK SCHRAGER, J.A. SIMON RUEL, J.A. RAFI MOHAMMAD GUL APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT Order for non-publication of any information to establish the identity of the complainant or a witness under

section 486.4 Cr.C . [1] The appellant appeals from a judgement delivered orally on July 4, 2018 (written reasons dated October 11, 2018) by the Court of Quebec, District of Longueuil (the Honorable Pierre Bélisle), which declared him guilty on two counts: sexual assault (

section 271 (

a) of the Criminal Code ), and breaking and entering with intent to commit an indictable offence ( sections 348(1) ( a )(

d) of the Criminal Code ). [1] [2] For the joint reasons of Savard, C.J.Q., and Schrager, J.A., THE COURT: [3] DISMISSES the appeal; [ 4 ] Ruel, J.A., dissenting, would have ordered a new trial. The judge made errors of law in applying the R. c. W.(D.) [2] framework and in characterizing a past event as similar fact evidence. The dissent pertains to the application of the curative proviso set out in section 686(1)(b)(iiii) of the Criminal Code . MANON SAVARD, C.J.Q. MARK SCHRAGER, J.A.

SIMON RUEL, J.A. Mtre Clara Daviault YVES MÉNARD AVOCATS INC. For appellant Mtre Frédérique Le Colletter Director of Criminal and Penal Prosecutions For respondent Date of hearing: October 7, 2020 REASONS OF RUEL, J.A. [ 5 ] The essential context of this matter is the following. The events in question took place during the evening of August 10, 2016. [ 6 ] The complainant and her mother lived together in an apartment and the appellant was their neighbour. The complainant was 20 years old at the time of the events. She was alone in the apartment as her mother was sleeping elsewhere.

She testified that around midnight, she woke up when she felt a presence close to her lips. She then saw the appellant who was sitting on her bed next to her. She recognized him immediately. [ 7 ] The complainant testified that she was in shock and covered herself with her blanket. She eventually uncovered her face. She contends that the appellant wanted to lie down next to her. She refused. The complainant testified that the appellant touched her thigh over the blanket twice. She asked him to leave and he did within minutes. [ 8 ] The appellant denied the events described by the complainant. He is a taxi driver.

He is married and has one child. He stated that, on the day in question, he came home from work as usual, showered, had supper, and went to bed so he could be in good shape for the following work day. At that time, he was by himself in the apartment because his family was visiting their native country. [ 9 ] The appellant testified that he had a friendly relationship with the complainant’s mother, who had previously confided in him regarding certain relationships. As the mother had previously invited the appellant into her apartment, he knew the complainant.

However, he would not have entered uninvited. [ 10 ] The appellant was charged with breaking and entering with intent to commit an indictable offence and with sexual assault. [ 11 ] The judge stated that the issue in dispute was that of the appellant’s identity. In discussing the application of R. c.

W.(D.) , [3] the judge indicated that he did not believe the appellant, because his version had been contradicted by the complainant and her mother on significant aspects. [ 12 ] He referred to an event that occurred two months before the incident that gave rise to the charges, during which, according to the complainant, one evening, the appellant entered the apartment through the patio door, sat near her to talk and left ten minutes later without having touched her. [ 13 ] In the judge’s view, this was [ translation ] “probative evidence of past misconduct” [4] in the nature of a similar fact.

The judge stated that the complainant testified frankly and sincerely and was not shaken during her cross-examination. The judge concluded that the identification evidence was reliable and solid. [ 14 ] He therefore found the appellant guilty on all charges. [ 15 ] Before this Court, the appellant raises a number of issues, but the fundamental questions to be resolved are as follows: (1) did the judge err on the question of similar fact evidence; and (2) did the judge fail to properly apply the principles of R. v.

W. (D.) . [ 16 ] Before addressing these points, it is necessary to point out that, based on a review of the record before the Court, contrary to the judge’s assertion, the essential debate was not about identification. [ 17 ] The complainant clearly testified that she knew and recognized the appellant. She had seen him several times before and, during the incident, she immediately recognized his face as well as his voice. It was not completely dark in the room.

They had a discussion in close proximity to each other. [ 18 ] Crown counsel indicated at the outset of the trial that identification was not an issue and that she would not be filing evidence regarding the photo lineup (during which the complainant had had some difficulty recognizing the appellant on a photograph since his appearance was different, which the judge conceded).

Both counsel for the Crown and for the defence agreed that it was the facts of the case that were at issue, since the appellant was denying the occurrence of the events. [ 19 ] The debate should therefore have been centered on the assessment of the credibility of conflicting versions. By focusing the debate on identification, the judge strayed from the essential analysis he should have performed under R. v. W.(D.) . In this regard, the judge made two errors that can be characterized as errors of law.

[ 20 ] Firstly, the judge did not believe the appellant because his version was contradicted by the complainant and her mother. He stated that the accused: [ translation ] “denies everything that is compromising. His version is contradicted by those of the complainant and her mother on important elements”. [5] The judge engaged in a credibility contest by comparing versions, which is prohibited reasoning. [6] [ 21 ] The judge made no assessment of the intrinsic reliability and credibility of the appellant’s version.

On the other hand, the complainant’s version contained contradictions and shortcomings, which the judge did not substantially address. [ 22 ] For example, did the appellant touch the complainant’s lips with his own during the incident? The complainant contradicted herself, amplifying her version following leading questions by Crown counsel. The complainant’s mother also contradicted her daughter on this point.

These were not [ translation ] “minor details”. [7] The existence of physical contact on the complainant’s lips could form the basis of the sexual assault charge. [ 23 ] In her testimony at trial, the complainant could not remember what the appellant had said to her at the time of the incident which occurred two years earlier, so Crown counsel had to refresh her memory with a prior statement. The same happened as regards the television incident two months earlier.

These were elements that could affect the reliability and credibility of the complainant’s narrative. [ 24 ] With respect to the television incident, defence counsel was able to draw out discrepancies or shortcomings during cross- examination on a prior statement. The complainant could not remember if she had invited the appellant to watch a movie that evening. Contrary to what she had stated previously, the complainant expressed not knowing how she came into contact with the appellant that day. [ 25 ] This is not to say that evidence was not sufficient to convict.

The point is that, when facing conflicting testimonies, a judge cannot answer the question of whether the accused’s guilt was proven beyond a reasonable doubt simply by comparing versions. [ 26 ] Secondly, and more importantly, even though the Crown never intended to use the television incident as similar fact evidence, the judge concluded as follows: [ translation ] [20] The defendant denies everything that is compromising. His version was contradicted by those of the complainant and her mother on important elements, namely: […] (

c) he denies having entered the complainant’s apartment through the patio door two months prior to the event in question while she was watching television at approximately 8:00 p.m.; the complainant recounts that he had sat down next to her and had wanted to stay and talk to her about his day; he had stayed there for 10 minutes before leaving; she did not file a complaint because he had not touched her. [21] As for the last incident, it is probative evidence of past misconduct that is discreditable, relevant and indicative of reprehensible conduct.

This evidence is admissible because it goes beyond showing general propensity and is more probative than prejudicial to demonstrate similarity of conduct, determine the credibility of the accused, establish the identity of the offender and enhance the credibility of the complainant, because her version is contradicted by that of the accused. [Emphasis added.] [8] [ 27 ] The Crown sought to use this evidence of the prior event to provide relevant factual background. Defence counsel had the same understanding.

It was the judge who raised the issue of similar fact evidence after the prosecution’s case was closed. [ 28 ] Similar fact evidence is presumed inadmissible since it may show a disposition, a general propensity or a character conducive to the commission of a crime. This is reasoning that distracts the trier of fact from the essential question to be decided in a criminal case, which is whether the prosecution has established the accused’s guilt beyond a reasonable doubt in connection with the specific pattern of facts for which the accused was charged.

Such evidence may be admissible only if it goes beyond showing general propensity and is more probative than prejudicial with respect to one of the elements to be proven in connection with the offences charged. [9] [ 29 ] The judge erred in characterizing this evidence as similar fact evidence. [ 30 ] The judge held no voir dire on the admissibility of similar fact evidence. The judge stated that the prior incident was discreditable and reprehensible conduct. It should be noted that the evidence suggests that the mother tolerated the appellant entering the apartment uninvited on at least some occasions.

On one such occasion the appellant entered her home uninvited to play the guitar and she let him do so. [ 31 ] In any event, this evidence was clearly not probative as regards the offence of sexual assault, and its use as similar fact evidence, without distinguishing between the offences, was highly prejudicial to the appellant.

Indeed, the judge used this evidence to [ translation ] “demonstrate similarity of conduct, determine the credibility of the accused, establish the identity of the offender and enhance the credibility of the complainant” [10] without distinguishing between the offences in question. [ 32 ] Yet this evidence of the television event bore no similarity at all to the charge of sexual assault. [11] The complainant testified that during this previous event, she and the appellant had simply talked and that the situation had been normal, [ translation ] “like a normal neighbour ... he didn’t touch me ... he just told me about his day”. [ 33 ] Counsel for the respondent concedes that the evidence concerning the prior event was not and should not have been admitted as similar fact evidence of reprehensible conduct, but that the evidence was nonetheless relevant, including on the issue of identification and could have been considered as such by the judge.

The respondent therefore seeks the application of the curative proviso set out in section 686(1)(b)(iiii) of the Criminal Code . [ 34 ] The curative proviso can only be applied where there is “no reasonable possibility that the verdict would have been different had the error […] not been made”. [12] This criterion is met either “ (

i) where the error is harmless or trivial; or (ii) where the evidence is so overwhelming that the trier of fact would inevitably convict ” irrespective of the error. [13]

[ 35 ] The so-called similar fact evidence could not be used on the question of identification, which was a non-issue, as indicated previously. The judge erred in using evidence of the prior event as similar fact evidence to demonstrate the similarity of the appellant’s conduct and enhance the credibility of the complainant with respect to the offences, particularly the offence of sexual assault. This was a serious error in law. [ 36 ] This reasoning had a clear impact on the result.

It was one of the central points used by the judge both to assess the appellant’s credibility negatively and to bolster the complainant’s credibility. This is a “he says/she says” case where the whole of the evidence rested in the complainant’s testimony and the accused’s denial. The assessment of credibility of the parties was at the heart of this case. It is unfortunately not possible to say that the verdict would have been the same but for that error. [ 37 ] I would therefore allow the appeal and order a new trial. SIMON RUEL, J.A. JOINT REASONS OF SAVARD, C.J.Q.

AND SCHRAGER, J.A. [ 38 ] We agree with our colleague Justice Ruel that the judge erred in characterizing the previous incident of the Appellant entering the complainant’s apartment as similar fact evidence. The evidence was clearly not probative as to whether the Appellant committed a sexual assault upon entering the apartment on the night in question in the indictment.

Propensity to visit a neighbour, with or without an invitation, does not imply that the accused assaulted the neighbour during such occasion. [14] [ 39 ] However, we part ways with our colleague in his assessment of the effect of such error on the outcome of the case. [ 40 ] Although the essential debate before the judge was not per se about the ability of the complainant to identify the Appellant, her neighbour, his identity as the perpetrator was very much in issue. These two elements cannot be separated in a rational treatment of the complainant’s narrative.

It is in this context that the previous incident where the Appellant entered the complainant’s apartment was relevant to his knowledge of the premises and the complainant’s ability to identify him as the perpetrator - she knew him and had the chance to see his face at close quarters during this previous incident. As such, as the Respondent submits, even if the evidence might reflect reproachful behavior, it is admissible, given its probative value which greatly exceeds its prejudicial effect. [15] [ 41 ] Furthermore, the judge did not focus his analysis on the issue of identification.

Aside from the “similar fact” evidence, the judge provided other reasons not to believe the Appellant nor to source reasonable doubt from his testimony. [16] In following the W(

D) reasoning, the judge then went on to assess the other evidence in the file, comprised principally of the testimony of the complainant, and stated the following: [28] En somme, la plaignante a livré un témoignage franc et sincère sans animosité à l’égard de l’accusé. Personnalité timide, introvertie, elle est encore traumatisée par l’événement. Grâce à son calme et son insistance, elle a réussi à convaincre l’accusé de sortir de son logement en pleine nuit. Le contre-interrogatoire ne l’a pas ébranlée.

Certes, quelques détails secondaires diffèrent d’avec le témoignage de sa mère, comme les lèvres de l’accusé ont touché les siennes ou, selon sa mère, presque touché les siennes, ou encore qu’elle n’a pas appelé sa mère durant la nuit alors que celle-ci indique s’être rendu compte au matin d’un appel auquel elle n’a pas répondu. Détails mineurs qui n’entachent pas sa crédibilité ni la valeur probante de son témoignage. [ 42 ] The judge did not merely compare the Appellant’s testimony to that of the complainant to choose the one that was more convincing.

He discounted the Appellant’s testimony on its own merits to conclude that it did not raise reasonable doubt. In doing so, the judge did not commit any error of law, as he did not have to assess the “intrinsic” reliability and credibility of the Appellant’s testimony as proposed by our colleague. [ 43 ] The judge found the complainant’s testimony identifying the Appellant as the perpetrator to be convincing and reliable. The Appellant was hardly a stranger to the complainant.

As her neighbour with whom she had often spoken and who had dined with the complainant and her mother at their apartment, he was easily recognizable. The incident underpinning the indictment lasted about 20 minutes. The room was not completely dark, given the illumination from the street lamp. Thus, the complainant had ample opportunity to observe the Appellant’s face and hear his voice. She eventually convinced him to leave, which the judge remarked would be less likely with a stranger.

Any difficulty in identifying the Appellant’s photograph at the police station could be explained by the difference in his appearance in such photo, which the judge was able to confirm for himself in the courtroom, as he stated. The judge considered certain contradictions in the mother’s testimony as secondary which, in the circumstances, cannot attract appellate intervention. All of this was included by the judge in his reasons for finding the complainant’s identification of the perpetrator as “solid”.

The reliability and credibility of this evidence and its treatment by the judge is entirely severable from the qualification of the Appellant’s previous presence at the apartment as similar fact evidence. [ 44 ] Accordingly, our reading of the judgment leads us to the conclusion that even absent the so-called similar fact evidence, a guilty verdict would have ensued.

There is no “reasonable possibility that the verdict would have been different” had the judge not erred in his characterization of the evidence. [17] Thus, we would apply the curative provision of section 686 (1)( b )(iii) Cr.C . to dismiss the appeal. [ 45 ] The ground of appeal of inadequate representation is based on the argument that the Appellant’s trial counsel did not object to, nor argue against the introduction of the similar fact evidence.

Again, because we believe that the judge’s finding of guilt would, in the circumstances, stand without reliance on such evidence, this ground of appeal fails as well. [ 46 ] Furthermore, as stated, we do not ascertain any error by the judge on the W(D) [18] analysis. He considered the essential

questions. When measured against the evidence as a whole, the judge did not believe the Appellant nor did the latter’s testimony raise reasonable doubt in the judge’s mind. He need not have stated the test verbatim , as did the Supreme Court, for his treatment of the matter to be free of errors.

Such statement of the test has been held not to be sacrosanct. [19] [ 47 ] Lastly, we discern no error when the judge allowed the complainant to consult her statement given to the police shortly following the incident in order to help her remember the precise words uttered by the Appellant during the commission of the infraction. This is an example of past recollection revived and is clearly permissible. [ 48 ] Accordingly, none of the other grounds raised by the Appellant convince us that appellate intervention is warranted, such that we would dismiss the appeal. MANON SAVARD, C.J.Q. MARK SCHRAGER, J.A.