2014 QCCA 1643, 2014 QCCA 1643

Source: Court of Appeal of Québec

Date: 2014-09-09

Jurisdiction: Quebec

Citation: 2014 QCCA 1643

Opinion

Unofficial English Translation M.B. c. R. 2014 QCCA 1643 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-005264-120 (700-01-086747-097) DATE: September 9, 2014 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. MARIE-FRANCE BICH, J.A. MARTIN VAUCLAIR, J.A. M. B. APPELLANT – accused v.

THE QUEEN RESPONDENT – prosecutrix JUDGMENT [ 1 ] The Court has before it an appeal from a judgment of the Court of Quebec, Criminal and Penal Division, District of Terrebonne (the Honourable Judge Michel Bellehumeur) rendered on August 16, 2012, that found the appellant guilty on the following three counts: [ translation ] Between January 1, 2007, and May 1, 2008, in the City of A, District of Terrebonne, did, for a sexual purpose, touch a part of the body of Y (1992-…), a young person with whom he was in a position of trust or authority or who was in a relationship of dependency in his regard, thereby committing the indictable offence set out in section 153(1) (

a) of the Criminal Code . Between May 1, 2008, and August 24, 2008, in the City of A, District of Terrebonne, did, for a sexual purpose, touch a part of the body of Y (1992-…), a child under the age of sixteen years, thereby committing the indictable offence set out in

section 151 of the Criminal Code . Between August 24, 2008, and April 12, 2009, in the City of A, District of Terrebonne, did, for a sexual purpose, touch a part of the body of Y (1992-…), a young person with whom he was in a position of trust or authority or who was in a relationship of dependency in his regard, thereby committing the indictable offence set out in section 153(1) (

a) of the Criminal Code . [ 2 ] For the reasons of Vauclair, J.A., with which Chamberland and Bich, JJ.A. agree: [ 3 ] ALLOWS the appeal in part for the sole purpose of QUASHING the guilty verdict on the second count and ORDERING that a verdict of acquittal be entered; JACQUES CHAMBERLAND, J. A. MARIE-FRANCE BICH, J.A. MARTIN VAUCLAIR, J.A. Mtre Frédéric Allali ALLALI BRAULT For the appellant

Mtre Maxime Lacoursière DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the respondent Date of hearing: January 14, 2014 REASONS OF VAUCLAIR , J.A. [ 4 ] Among the grounds of appeal raised by M. B. (hereinafter the “appellant” or “B.”) is the issue of whether legislative amendments that came into force during the course of the accused’s conduct should result in his acquittal. Considering the evidence submitted at first instance, I think that they should. This ground, however, concerns only a small portion of the period relevant to the charges.

For the remainder, the appellant has not raised any valid grounds of appeal. I would therefore allow the appeal in part. I. BACKGROUND [ 5 ] In 2002, B. met Ms. X, who was the mother of a young girl, Y, then ten years old. The appellant’s relationship with the mother progressed, resulting in their marriage in 2007. Their relationship ended in 2010. Over the same time period, the relationship between B. and Y also changed. In 2009, Y filed charges against the appellant.

On August 16, 2012, Michel Bellehumeur, J. of the Court of Quebec, Criminal Division, District of Terrebonne, convicted him of sexual interference and sexual exploitation. [ 6 ] Because the dates are important, it is worth reproducing the charges (emphasis added): [ translation ] 1.

Between January 1, 2007, and May 1, 2008 , in the City of A, District of Terrebonne, did, for a sexual purpose, touch a part of the body of Y ( 1992-… ), a young person with whom he was in a position of trust or authority or who was in a relationship of dependency in his regard, thereby committing the indictable offence set out in section 153(1)(

a) of the Criminal Code . 2. Between May 1, 2008, and August 24, 2008 , in the City of A, District of Terrebonne, did, for a sexual purpose, touch a part of the body of Y ( 1992-… ), a child under the age of sixteen years, thereby committing the indictable offence set out in

section 151 of the Criminal Code . 3. Between August 24, 2008, and April 12, 2009 , in the City of A, District of Terrebonne, did, for a sexual purpose, touch a part of the body of Y ( 1992-… ), a young person with whom he was in a position of trust or authority or who was in a relationship of dependency in his regard, thereby committing the indictable offence set out in section 153(1)(

a) of the Criminal Code [ 7 ] On consent of the parties, the hearing dealt simultaneously with two files on the basis of common evidence. In the other case, which concerned photos of the complainant taken by the appellant, the judge acquitted him of production and possession of child pornography. No appeal was filed in that other case, but the photographs are at the heart of one of the grounds of this appeal. [ 8 ] All of these charges stem from the appellant’s conduct towards the young victim. I will address this in more detail when I consider the grounds of appeal.

First, I will outline the general background. [ 9 ] The young victim’s complaint concerns sexual acts committed by the appellant towards her between 2007 and 2009. She states that the appellant was physically affectionate with her when they were alone. His offending behaviour progressively worsened. Eventually, he told her that she was his [ translation ] “best friend”. He held photo shoots with her, during which he would ask her to get undressed, put on one of her mother’s negligees, and assume suggestive poses. He touched her lower back, thighs, buttocks, and breasts. Occasionally, he would give her beer.

He often went to her room to massage and caress her. On a few occasions, he kissed her on the mouth. He would often ask her not to say anything to her mother and would suddenly stop touching her when her mother was present. In his testimony, the appellant admitted the relationship of trust that existed between him and the young victim. He stated that his closeness was intended to be comforting since Y had suffered from episodes of self-harm.

He did not deny several of the actions reported by the young victim, but he made qualifications, attempting to put them in context and stating that his actions had no sexual connotation. He explained that the photo sessions were intended to be a way to increase the complainant’s self-esteem.

II. TRIAL JUDGMENT [ 10 ] The trial judge dealt with the incidents reported by the complainant in six groups. He then analyzed the contradictory versions given by the complainant and the appellant, in accordance with the Supreme Court’s decision in W.D. [1] He summarized the arguments raised by the defence. The judge concluded that he did not believe the appellant’s version. He noted and explained numerous contradictions, implausibilities, and unusual justifications in the appellant’s testimony. He added that this testimony raised no reasonable doubt. In his view, the incidents reported were of a sexual nature.

He dismissed the testimony of the appellant’s daughter for the defence. He ruled that the photographs submitted, even if they did not support the charges of child pornography, shed light on the context. The judge noted differences between the versions of the complainant and that of her friend in regard to these incidents but found them to be minor and secondary. He accepted the evidence of the complainant and that of the prosecution, which led him to find the appellant guilty. III. ISSUES [ 11 ] The appellant submits four grounds of appeal, which I will address in the following order: 1.

Did the honourable trial judge err in law in failing to interpret and apply the concept of “for a sexual purpose” correctly? 2. Did the honourable trial judge err in law in failing to correctly interpret the criteria regarding the position of “authority” and the relationship of “dependency” that must exist for each count of touching? 3. Did the honourable trial judge err in law in considering the evidence as a whole and applying it in a general manner to the three distinct counts? 4. Did the honourable trial judge err in his application of the principles set out in W.D. ? IV.

LEGISLATIVE HISTORY [ 12 ] But for the legislative amendments of May 1, 2008, the appellant would have been charged with only one count under former

section 153 of the Criminal Code for the entire period of 2007 to 2009, as Y was between 14 and 16 years old during this period. [ 13 ] Before the May 1, 2008, amendments,

section 153 of the Criminal Code , i.e. the first count, read as follows:

(1) Commet une infraction toute personne qui est en situation d’autorité ou de confiance vis-à-vis d’un adolescent, à l’égard de laquelle l’adolescent est en situation de dépendance ou qui est dans une relation où elle exploite l’adolescent et qui, selon le cas :

a) à des fins d’ordre sexuel, touche, directement ou indirectement, avec une

partie de son corps ou avec un objet, une

partie du corps de l’adolescent; b) …

(1.1) Quiconque commet l’infraction visée au paragraphe (1) est coupable :

a) soit d’un acte criminel passible d’un emprisonnement maximal de dix ans, la peine minimale étant de quarante-cinq jours; b) ...

(1.2) Le juge peut déduire de la nature de la relation entre la personne et l’adolescent et des circonstances qui l’entourent, notamment des éléments ci-après, que celle-ci est dans une relation où elle exploite l’adolescent :

a) l’âge de l’adolescent;

b) la différence d’âge entre la personne et l’adolescent;

c) l’évolution de leur relation;

d) l’emprise ou l’influence de la personne sur l’adolescent.

(2) Pour l’application du présent article, « adolescent » s’entend d’une personne âgée de quatorze ans au moins, mais de moins de dix-huit ans. 153.

(1) Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the young person, and who (

a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person; or (b) ...

(1.1) Every person who commits an offence under subsection (1) (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of forty-five days; or (b) ...

(1.2) A judge may infer that a person is in a relationship with a young person that is exploitative of the young person from the nature and circumstances of the relationship, including (

a) the age of the young person; (

b) the age difference between the person and the young person; (

c) the evolution of the relationship; and (

d) the degree of control or influence by the person over the young person.

(2) In this section, “young person” means a person fourteen years of age or more but under the age of eighteen years. [ 14 ] For the purposes of the analysis that follows, it should be noted at the outset that this offence requires evidence of a position of trust or authority or a relationship of dependency. The young person at issue is a person between fourteen and seventeen years of age. During the period at issue in the first count, i.e. between January 1, 2007, and May 1, 2008, Y was between fourteen and fifteen years of age. [ 15 ] As of May 1, 2008, the touching of a fifteen-year-old adolescent has been governed by another section,

section 151 of the Criminal Code . The offence does not require proof of a position of trust or authority or a relationship of dependency between the accused and the victim; and the person at issue is under the age of sixteen. A minimum sentence of twelve months is provided:

151. Toute personne qui, à des fins d’ordre sexuel, touche directement ou indirectement, avec une

partie de son corps ou avec un objet, une

partie du corps d’un enfant âgé de moins de seize ans est coupable :

a) soit d’un acte criminel passible d’un emprisonnement maximal de dix ans, la peine minimale étant de un an; […] 151. Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years (

a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; … [ 16 ] Y was fifteen years old during the period covered by the second count, between May 1, 2008, and August 24, 2008, the latter date being her sixteenth birthday. [ 17 ] Since May 1, 2008, touching a young person over sixteen years of age is governed by the new

section 153 of the Criminal Code . This offence also requires, among other things, evidence of a position of trust or authority or a relationship of dependency, and the young person is sixteen or seventeen years old. The minimum punishment has increased. During the period covered by this count, i.e. between August 24, 2008 and April 12, 2009, Y was sixteen years old:

a) à des fins d’ordre sexuel, touche, directement ou indirectement, avec une

partie de son corps ou avec un objet, une

partie du corps de l’adolescent; b ) …

(1.1) Quiconque commet l’infraction visée au paragraphe (1) est coupable :

a) soit d’un acte criminel passible d’un emprisonnement maximal de dix ans, la peine minimale étant de un an; b ) …

a) l’âge de l’adolescent;

b) la différence d’âge entre la personne et l’adolescent;

c) l’évolution de leur relation;

d) l’emprise ou l’influence de la personne sur l’adolescent.

(2) Pour l’application du présent article, « adolescent » s’entend d’une personne âgée de seize ans au moins, mais de moins de dix-huit ans. 153.

a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person; or ( b ) …

(1.1) Every person who commits an offence under subsection (1) (

a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or ( b ) …

(1.2) A judge may infer that a person is in a relationship with a young person that is exploitative of the young person from the nature and circumstances of the relationship, including (

a) the age of the young person; (

b) the age difference between the person and the young person; (

c) the evolution of the relationship; and (

d) the degree of control or influence by the person over the young person.

(2) In this section, “young person” means a person 16 years of age or more but under the age of eighteen years.

V. ANALYSIS 1. Did the honourable trial judge err in law in failing to interpret and apply the concept of “ for a sexual purpose ” correctly? [ 18 ] The appellant submits that the judge failed to consider each action alleged in isolation to determine whether they were sexual in nature. The prosecutor insists that deference should be given to the trial judge’s conclusions of fact. It was appropriate for him to reach a general conclusion on the sexual nature of the incidents of touching.

He was not required to repeat it each time, for each incident. [ 19 ] The prosecution is correct in asserting that the factual conclusions of the trial judge warrant deference. The determination of what constitutes “for a sexual purpose”, which is an element of the offence, is, however, a question of law, reviewable on the standard of correctness. [2] [ 20 ] That being said, the appellant’s argument remains groundless. His criticism runs contrary to the consistently applied legal principle whereby the assessment of the facts must take into account all of the evidence.

It is however true that the judge did not discuss the notion of “for a sexual purpose” on which the defence at trial was based. One might wish he had, but in my view, the conclusion here is obvious, and the lack of detailed reasons has not caused the appellant any prejudice. [ 21 ] First, it should be acknowledged that the judge is presumed to know the law. [3] Next, because the appellant’s defence essentially challenged this element of the offence, it is hard to believe that the judge was not aware of it. Indeed, it is apparent in his decision that he was.

The trial judge concluded that the actions were, beyond a reasonable doubt, touching for a sexual purpose. Thus, he committed no error. [ 22 ] As the Crown noted in its factum, the Court of Appeal of Alberta in Morrisey concluded that the mere denial by the accused of having touched the accused for a sexual purpose does not resolve the issue. [4] The Court stated: [21] Touching is done for a sexual purpose, if it is done for one’s sexual gratification or to violate a person’s sexual integrity.

In determining whether touching takes place in circumstances of a sexual purpose, we are of the view that a trial judge can in assessing the mens rea of the accused, consider whether the sexual context of the touching would be apparent to any reasonable observer.

The “sexual purpose” may be proven either by direct evidence, or it may be inferred from circumstantial evidence or from the nature of the touching itself (ie. the only reasonable inference to be drawn from the circumstantial evidence or from the nature of the touching itself is that the accused committed the touching for a sexual purpose) …. [5] [ 23 ] I agree. [ 24 ] The actions at issue during the period covered by the first count are incidents of touching her lower back, thighs, buttocks, and breasts.

Those at issue in the third count include incidents of touching her buttocks and genital area under a blanket while watching a movie and touching her breasts. There were also, at less specific times, kisses on the mouth, sometimes accompanied by touching her breasts and other parts of the victim’s body. For each alleged charge, the judge had to consider the context as a whole to determine whether these actions were for a sexual purpose. He clearly rejected the appellant’s explanations.

A reasonable observer could only conclude that these actions were conducted in violation of the victim’s sexual integrity, if not squarely to obtain sexual pleasure. The judge committed no error, and this ground of appeal is dismissed. 2. Did the honourable trial judge err in law in failing to correctly interpret the criteria relating to the position of “ authority ” and the relationship of “ dependency ” that must exist for each count of touching? [ 25 ] The appellant submits that the judge failed to analyze the issue. He assumed that this essential element had been proven.

This ground of appeal concerns only the verdicts on the first and third counts. [ 26 ] It is difficult to understand the appellant’s argument at trial whereby the relationship of trust he had with the complainant permitted him to commit most of the actions he is accused of today. In his testimony, he described the special relationship he had with the complainant. He claims to be close to her and to love this girl who, according to him, had had many problems, including self- harming.

Finally, before the trial judge, he stated that he considered her to be like his own daughter. [ 27 ] In my view, these admissions by the appellant, regarding both the nature of his relationship and the victim’s state of vulnerability, are sufficient. The abuse of this relationship is not an element of the offences, it merely needs to be demonstrated. [6] That said, this perception of his relationship with the victim is confirmed by the evidence. The appellant acted like a father towards the victim, who was vulnerable. Their relationship remained stable over the years.

The appellant did not demonstrate that any change occurred, either in the victim or otherwise, to alter the relationship and place it beyond the scope of this provision. This ground is therefore dismissed. 3. Did the honourable trial judge err in law in considering the evidence as a whole and applying it in a general manner to the three distinct counts? [ 28 ] The appellant essentially claims that the trial judge erred by analyzing the evidence in [ translation ] “groups” or [ translation ] “blocks” of incidents, without concern for the simultaneity of the constituent elements of the offences.

The appellant particularly emphasized the lack of specific time references in this account, which spans more than seven years. He also notes in passing in his pleading that the judge erroneously used the evidence as similar fact evidence without holding a voir dire, in addition to using the evidence of the photo shoots as evidence of propensity. [ 29 ] The prosecution disagrees. It submits that the date of each incident is sufficiently established by the evidence. Moreover, it claims that there were incidents of touching of the complainant’s breasts throughout the period covered by the second count.

Finally, it submits that the Easter incident must have been in 2009, as the accusations were made in April 2009. It is of the view that this is not

similar fact evidence, but evidence of continuous conduct towards a single victim over a long period. Finally, it was open to the judge to use the evidence of the photo shoots to assess the appellant’s credibility. [ 30 ] Admittedly, it is not easy to determine the specific dates of the events described by the complainant. This is obviously in part due to her memory, but more because of the way the examinations were conducted.

At trial, the prosecution seems to have treated the file as a single time period covering all counts, without much concern for specifying the dates or situating the events in time, with either the complainant or the other witnesses.

It should be added that this lack of precision did not appear to bother the defence, which, at trial, concentrated essentially on the characterization of the alleged actions, describing them as accidental, insignificant, or exaggerated by the complainant. [ 31 ] There is no doubt, however, upon reading the complainant’s testimony, which the judge accepted as evidence, that the offending actions occurred during the periods covered by the first and third counts. [ 32 ] With respect to the period from January 1, 2007, to May 1, 2008 (count 1), it is possible to clearly identify the sexual touching. [ 33 ] Y places the first incidents of touching at the end of her second year of high school.

This end of the school year could only have been in 2007, before her fifteenth birthday in August of 2007. She was therefore fourteen years old. The appellant touched her lower back, thighs, buttocks, and breasts when they were alone. In Y’s words, he had [ translation ] “wandering hands” and was [ translation ] “physically affectionate”. The appellant took advantage of the victim’s scooter accident to touch her.

Keeping in mind what was said above as to the nature of the touching and the relationship, this evidence of touching is sufficient to establish criminal conduct during this first period. [ 34 ] With respect to the period between August 24, 2008, to April 12, 2009 (count 3), the evidence does not give rise to confusion. There is no doubt that the touching of her buttocks and genital area under a blanket while watching a movie took place in April 2008. This touching resulted in the revelation, in the spring of 2009. Also during this period, there was touching of the victim’s breasts, despite her objections.

Once again, this evidence is sufficient to conclude that there was criminal behaviour during the period covered by the third count. [ 35 ] Finally, the evidence concerning the brief period from May 1, 2008, to August 24, 2008 (count 2) is less precise and, ultimately, non-existent. [ 36 ] During this four-month period, Y was fifteen years old. She testified of incidents of touching while she was fifteen, but with no further detail as to when they occurred. They might have taken place during the period covered in the first or second count, but it is impossible to determine which.

I conclude that it is not possible to arbitrarily attribute the actions that generally occurred while the victim was fifteen years old to this period and this count instead of the first one. [ 37 ] Before May 1, 2008, this offence did not exist. After August 24, 2008, the second count no longer applies to the victim because of her age. The repeated incidents of touching her breasts are the only criminal actions submitted into evidence at trial that occurred during the period covered by the second count.

As I will explain, however, the evidence remains contradictory in this regard. [ 38 ] Otherwise, Y testified that she was fifteen years old when, on two occasions on unspecified dates, the appellant kissed her on the mouth despite her clear objections. Moreover, Y testified that the appellant [ translation ] “had been drinking and became affectionate; he put his head on my breasts and caressed me, and then he went back upstairs”. She was on the telephone with her boyfriend in the basement.

It can be inferred that this incident took place when she was fifteen years old, but nothing more. [ 39 ] She also described [ translation ] “fake massages” that the appellant would give her. These massages would stop suddenly when her mother entered the room. From the evidence, it appears that they occurred repeatedly over a certain period. According to Y, the massages began after a scooter accident that took place during her [ translation ] “first grade nine” in the summer, and thus probably in July 2007.

The evidence is not clear as to specifically when the massages started, their frequency, or the duration of this conduct. In short, the evidence contains little to justify including these massages in the period covered by the second count. [ 40 ] The complainant’s account also reports repeated incidents of touching her breasts at around the same time as the scooter accident. One day, Y felt a lump in one of her breasts. Worried, she asked her parents to touch it, but they refused. The appellant, for his part, agreed to touch her breasts.

B. continued touching them and insisted on continuing for several months despite the disappearance of the lump and Y’s objections. Y believes that she told the appellant about it and the first incident of touching took place in his car, during the winter, probably in 2007. In cross-examination, she said it was in December 2008. Depending on the date accepted, the touching is either covered by the second count or not. [ 41 ] The judge did not resolve this difficulty, however, even though the two dates were stated during the same testimony, which he accepted.

In my view, the lack of a specific conclusion on this evidence is fatal and does not allow for a determination on appeal of whether the actions took place in the period covered by the second count. [ 42 ] In his factum, the appellant submits that the lack of precision as to the dates prevented him from defending himself. This argument is without merit. For one, most of the actions he is accused of contain sufficient temporal markers. The action he really contests occurred in spring 2009, and the appellant had sufficient opportunity to deny it.

Although other incidents of touching may have taken place on less specific dates, the appellant never tried to obtain further precisions from the complainant. This is understandable, since the defence was focused mostly on the innocent or accidental nature of the actions. [ 43 ] Also in his factum, the appellant submits that the trial judge used the evidence on the three counts as similar fact evidence and inferred evidence of propensity. The appellant has not established this however and I am not convinced that this is what the judge did. Rather, he assessed the evidence as a whole, as he was entitled to do.

It is true, however, that the judge drew an inference from the photographs, which he did not find to be pornographic, at paragraph 77 of his judgment, when he wrote that they [ translation ] “speak volumes as to the state of mind and the propensity of the accused towards the young girl and the context in which they were taken” [emphasis added].

[ 44 ] It is quite possible that the appellant gives these words a scope they do not have. A reading of the decision indicates that the judge probably wanted to express nothing more than the accused’s penchant for the young girl, his attraction. [ 45 ] This evidence is certainly admissible as circumstantial evidence. Even evidence of propensity is sometimes admissible to establish evidence of a state of mind or animus .

This is not a general propensity, but a propensity to engage in certain conduct in a well- defined context and time period. [7] [ 46 ] This attraction to the victim was therefore relevant and, in conjunction with the evidence as a whole, contributed to the assessment of the elements of the appellant’s defence, such as accident and innocent touching, and the establishment of the appellant’s animus , despite the differences between the actions. [8] I think this is how the passage cited should be understood. [ 47 ] The fact remains, however, that this is evidence of shameful conduct, which was likely to lead the trial judge down the slippery and unlawful slope of reflection influenced by evidence of propensity.

In this case, this fear may be exacerbated by use of the word [ translation ] “propensity” itself in the decision. It should be kept in mind, however, that the appellant agreed to proceed on the basis of common evidence and that he raised no concern as to the prejudicial nature of this evidence. And indeed, this evidence was relevant and admissible. The prejudicial nature of this type of evidence before a judge sitting alone is somewhat reduced, although it is not totally absent and we must remain vigilant. [9] That said, the appellant has not established that this evidence led to prohibited reasoning. 4.

Did the honourable trial judge err in his application of the principles set out in W.D. ? [ 48 ] This ground of appeal is difficult to follow. The appellant submits that the judge committed an error in the [ translation ] “application of the third criterion of the assessment” set out in W.D. He submits that the inherent contradictions in the complainant’s testimony should necessarily have raised a reasonable doubt.

We may therefore conclude that he does not allege that the judge was wrong to dismiss his testimony or to conclude that it did not raise a reasonable doubt. [ 49 ] The appellant is absolutely correct to state that reasonable doubt may arise from the evidence adduced, even if the judge completely rejects the defence. In this case in particular, such doubt could be raised by the contradictions noted in the testimony of the witnesses for the prosecution.

The appellant therefore alleges that the trial judge did not take these contradictions into consideration and, a fortiori , did not give them effect. [ 50 ] While structured around the application of W.D. , this ground of appeal actually targets the reasonableness of the verdict. The appellant’s references to Gagnon and Beaudry make this even more clear. [10] He impugns the conclusions of the trial judge and asks the Court to substitute it with its own assessment of the evidence.

In the absence of a palpable and overriding error, however, an appellate court must show deference to the trial judge, who saw the behaviour of the witnesses and was able to assess their testimony. [11] [ 51 ] Admittedly, more complete reasons might be desired, but the elements raised by the appellant do not in themselves constitute a palpable and overriding error. [ 52 ] First, the appellant himself committed an error in submitting that the judge failed to consider the fact that he was [ translation ] “naturally affectionate to begin with”.

His references to the evidence point to characteristics of the victim’s mother , not the appellant . This is therefore not a contradiction. [ 53 ] The appellant also submits: [ translation ] Thus, [the judge] affirmed that the appellant committed certain acts in the mother’s absence, although the complainant herself explained to the Court that her mother never left her alone for more than five (5) minutes.

Setting aside this type of contradiction generally and without a more specific analysis deprived the accused of the possibility of such a contradiction raising a doubt. [ 54 ] Is it really useful to put further emphasis on this type of [ translation ] “contradiction”, which is obviously a figure of speech? The judge is not required to interpret it strictly and literally, as the appellant does.

That said, the evidence establishes without question that some of the alleged actions were done in the absence of the mother, in the accused’s car and during the movie in April 2009. [ 55 ] Finally, the appellant argues that there is a time inconsistency regarding the duration of the incidents of touching the victim’s breasts.

In general, however, this type of inconsistency has little impact in the context of repeated assaults. [12] Moreover, the appellant himself testified that he touched the complainant’s breasts on several occasions. [ 56 ] In short, none of these examples can be characterized as a palpable and overriding error. Finally, the judge considered the differences between the testimony of the complainant and that of her friend but concluded that they affected collateral aspects.

The appellant has failed to establish a palpable and overriding error in this conclusion. [ 57 ] I would therefore allow the appeal in part, solely because the evidence does not establish criminal conduct during the short time period covered by the second count. At the hearing, the prosecution did not establish how this charge could have survived if the dates had been duly considered. Consequently, a verdict of acquittal should be entered for the second count. MARTIN VAUCLAIR, J.A.

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