2015 QCCA 35, 2015 QCCA 35

Unofficial English Translation LSJPA — 151 2015 QCCA 35 COURT OF APPEAL CANADA PROVINCE OF QUEBEC MONTREAL REGISTRY No.: 500-08-000420-135 (525-03-051785-111) DATE: JANUARY 14, 2015 CORAM: THE HONOURABLE NICHOLAS KASIRER, J.A. JEAN-FRANÇOIS ÉMOND, J.A. MARK SCHRAGER, J.A. HER MAJESTY THE QUEEN APPELLANT – Prosecutrix v.

X RESPONDENT – Accused JUDG MENT [ 1 ] The Crown appeals from a judgment of the Court of Quebec, Youth Division, District A (the Honourable Judge Rolande Matte), rendered on April 19, 2013, acquitting the respondent on three charges, to wit: sexual assault, sexual touching of a person under 16 years, and invitation to sexual touching. [ 2 ] For the reasons of Kasirer J.A., with which Émond and Schrager JJ.A. agree, the Court : [ 3 ] ALLOWS the appeal for the sole purpose of amending the wording of the charges so that they read as follows: 1.

Between January 1, 2009, and March 17, 2011, in City A, District A, and in City B, District B, did sexually assault Y (2002-...), thereby committing the indictable offence set out in section 271(1) (

a) of the Criminal Code . 2. Between January 1, 2009 and March 17, 2011, in City A, District A, and in City B, District B, did, for a sexual purpose, touch a part of the body of Y (2002-...), a child under the age of sixteen (16) years, thereby committing the indictable offence set out in

section 151 of the Criminal Code . 3. Between January 1, 2009 and March 17, 2011, in City A, District A, and in City B, District B, did, for a sexual purpose, invite, counsel or incite Y (2002-...), a child under the age of sixteen (16) years, to touch him and to touch herself, thereby committing the offence set out in

section 152 of the Criminal Code . [ 4 ] UPHOLDS the acquittal rendered by the Court of Quebec on the charges as amended and, consequently, DISMISSES the appellant's application for a new trial. NICHOLAS KASIRER, J.A. JEAN-FRANÇOIS ÉMOND, J.A. MARK SCHRAGER, J.A. Mtre Mario Giroux C riminal and penal prosecuting attorney Counsel for the Appellant Mtre Julie Bégin Julie Bégin, avocate

Counsel for the Respondent Date of hearing: December 4, 2014 REASONS OF KASIRER, J.A. [ 5 ] Relying on section 676(1)(

a) Cr. C. , the Crown appeals from a judgment of the Court of Quebec, Youth Division, which acquitted X on three charges, to wit: sexual assault, sexual touching of a person under the age of sixteen years, and invitation to sexual touching. [ 6 ] In succinct reasons, and in light of the contradictory versions of events given at trial by the complainant and the respondent, the judge acquitted the respondent on the basis of reasonable doubt. [ 7 ] The Crown appeals the acquittal on the sole ground available to it in the circumstances, that of a question of law.

In support of its application for a new trial, it alleges four errors of law. [ 8 ] For the reasons that follow, I am of the opinion that there is no question of law that could give rise to a reversal of the respondent's acquittal.

I conclude that the alleged errors are either inadmissible attacks on the findings of fact by the trial judge or errors that have no plausible bearing on the verdict. [ 9 ] The sole virtue of this appeal is that it highlights how the legislative restriction on the Crown's right of appeal from acquittals reflects a fundamental principle of Canadian criminal law: a person accused has the right not to be retried for an offence for which he or she has been acquitted on the facts.

In my opinion, the Crown's application for a new trial disregards X's right to be protected against this double jeopardy. [ 10 ] The Crown's appeal also gives the Court an opportunity to point out – again in relation to the legislative restriction on its right of appeal – that even if an error of law is made at trial, the Crown must convince the Court that the error might reasonably be thought to have had a material impact on the verdict of acquittal.

The burden on the Crown in this regard is a heavy one. [1] In the case at bar, I believe that the only error of law established on appeal has no impact on the verdict, and I note that the Crown itself has not argued the contrary. As I will explain below, this error clearly calls for a remedy, but it does not justify a new trial. *** I The context [ 11 ] X, a youth, was charged with three offences: sexual assault, sexual touching of Y, a person under the age of 16 years, and invitation to sexual touching: 1.

Between January 1, 2009 and March 17, 2011, in City A, district A, did sexually assault Y (2002-...), thereby committing the indictable offence set out in section 271(1) (

a) of the Criminal Code . 2. Between January 1, 2009 and March 17, 2011, in City A, district A, did, for a sexual purpose, touch a part of the body of Y (2002-...), a child under the age of sixteen (16) years, thereby committing the indictable offence set out in

section 151 of the Criminal Code . 3. Between January 1, 2009 and March 17, 2011, in City A, district A, did, for a sexual purpose, invite, counsel or incite Y (2002-...), a child under the age of sixteen (16) years, to touch her [ sic ] and to touch herself, thereby committing the indictable offence set out in

section 152 of the Criminal Code . [ 12 ] The complainant was eight years old at the time of the events and ten years old at the time of trial. Her parents are separated, and she lives with her mother, A, in the City A region. In 2010, Y saw her father, B, who also lived in City A, three or four times over the course of the year. [ 13 ] The respondent is Y's cousin and B's nephew.

Residing in City C, the municipality neighboring City B, X was 14 years old at the time of the events and 17 years old at the time of his trial. [ 14 ] All agree that X and Y saw each other during the 2010 summer holidays at B's childhood home in City B and, later during the same summer, at B's residence in City A. [ 15 ] At the two-day trial, the Crown and the defence presented contradictory versions of the events that occurred in the summer of 2010.

I.1 The prosecution’s evidence [ 16 ] The Crown evidence comprised three key elements: an interview with the complainant that was videotaped by the investigator on the file in March of 2011 and entered in evidence pursuant to

section 715.1 Cr. C. ; Y's testimony at trial in 2013; and her mother's

testimony. [ 17 ] In the video and during her testimony, Y related three assaults committed by X in 2010. [ 18 ] She said the first event took place in City B, during the 2010 summer holidays. She was there with her father for about one week to visit the latter’s older children, among other things. They stayed in the basement of her father's childhood home, which had been converted into an open space apartment. This house also had an apartment on the upper floor. Y had been there before.

On the day of the assault, X was present. [ 19 ] The father left the basement apartment for a moment to sign some papers upstairs. During this time, the respondent sexually touched Y while she was on a bed. She did not say anything and did not scream because she was afraid he would hit her. X did not invite Y to touch him. The father was allegedly absent for four to six minutes. [ 20 ] Y said the second event occurred during the same stay in City B. She and her father were visiting the home of X's family in City C. X called her up to his room.

She was standing, and X placed her on the bed and forced her to touch his penis after opening his fly. He also touched her. The father announced that supper was ready and they went downstairs. The assault lasted two to three minutes. [ 21 ] Y said the third assault occurred during the same summer, this time in her father's former apartment in City A. The incident took place in the room where she slept when she stayed with her father. The father was preparing supper and Y's brother was in the living room. X touched her under and on her clothes and asked her, then forced her, to touch his penis under his clothes.

The assault stopped when the father came to see them. X then pretended they were playing. [ 22 ] At the hearing, A said that her daughter Y told her about the assaults in March of 2011, after telling a friend about them. I.2 The defence's evidence [ 23 ] The defence's evidence was essentially limited to the testimony of the respondent and that of the complainant's father. [ 24 ] The father mentioned only two meetings between Y and X in 2010, one in City B and the other in City A.

He admitted, however, to having some memory problems. [ 25 ] He stated that a first meeting between Y and X took place during a stay in City B in summer 2010. On the day in question, X joined them to help with renovations to a house in the morning and left in the afternoon. Various family members were present. In the morning, The father left for five minutes to sign some documents upstairs. In the basement at the time were X, Y, and two other family members. When he came back down, the four youngsters were playing in front of the television.

During the rest of the day, Y was outside and her father kept an eye on her [ translation ] "regularly". He could not confirm that he always had X in sight. He did not see any sign of assault committed against his daughter. [ 26 ] The father did not recall going for supper at the home of X's family with his daughter during this stay in City B, thereby casting doubt, in his mind, on the possibility of the second alleged assault. [ 27 ] Y's father said that a second meeting between his daughter and X occurred in September of 2010, in the City A region, on the occasion of a family supper at his home.

Games were organized, and some of the children went to the park for 30 to 45 minutes, but he could not say whether Y and X were among them. According to him, X arrived in the afternoon and left after supper. There again, he did not notice any sign of assault. [ 28 ] As for X, at trial he denied having assaulted Y in any way. [ 29 ] With respect to the first alleged assault in City B, X said that he arrived at around 9 a.m. and went downstairs to the basement apartment. Y was in her pyjamas and the others were already there.

He said that he was never alone with his cousin and that he worked outside all day without ever going in the house, except when he arrived. He left at around 4 p.m., before supper. He ate at his uncle's home next door. [ 30 ] X denies that the complainant went to his home in 2010, thus ruling out the occurrence of the second alleged assault in City B. As for the incident in City A, X testified that he played with his cousins, including Y, that day, but that he was never alone with her, except for a period of two to three minutes in the living room.

II The trial judgment [ 31 ] According to the judge, the evidence shows that two or three incidents occurred in City B. Commenting on the charges, which do not refer to this location, the judge said: [ translation ] It will be noted that the three charges refer to City A, which is clearly not consistent with the evidence that was available before the charges were laid on the basis of the video, or consistent with the evidence presented before the Court. [ 32 ] She did not return to this point in her reasons. [ 33 ] The judge then presented a brief

summary of the facts pertaining to the three incidents related by Y. She noted that the child told a friend about them, and eventually her mother. The judge noted that [ translation ] "there is no witness to the alleged incidents other than, of course, the accused and the victim". [ 34 ] The judge wrote as follows concerning the quality of Y's presentation of the facts: [ translation ] "so the victim's version is at first glance consistent and has an air of reality".

[ 35 ] She noted that the accused [ translation ] "categorically" denied committing the alleged acts. [ 36 ] Faced with two contradictory versions, the judge was wary of the danger of choosing one version over the other. She noted as well that the complainant's father, called by the defence, offered evidence of no probative value and suffered from significant memory problems. [ 37 ] As for the accused X, the judge pointed out that his testimony showed signs of [ translation ] "some hesitations" and that his recollections were, at times, [ translation ] "selective".

She noted contradictions between the accused's testimony and that of his uncle.

She then commented on the accused's credibility as follows: [ translation ] The Court has also noted that, unlike the victim, who is a bright and articulate young girl, the accused seems to be afflicted with some intellectual slowness, which offsets some previously mentioned elements that are unfavourable to his credibility. [ 38 ] After observing that it is often impossible for the court to determine, beyond a reasonable doubt, which version of the facts is accurate in sexual assault cases, the judge concluded that the accused must benefit from reasonable doubt and be acquitted: [ translation ] There are not enough elements here for me to conclude that the accused's version is totally false or improbable and therefore to rule it out completely.

Consequently, the accused must benefit from reasonable doubt, regardless of the value that might otherwise be attributed to the Crown's evidence. The accused is therefore acquitted of the three charges. III Grounds of appeal [ 39 ] The Crown raises four questions on appeal: 1. Did the judge err in law by making a finding of fact not based on the evidence? 2. Did the judge err in law by failing to amend the charges laid in order to render them consistent with the evidence? 3.

Did the judge err in law by giving insufficient reasons in that they do not justify a conclusion that she correctly applied the reasonable doubt standard? 4. Did the judge err in law by requiring corroboration of the complainant's testimony, contrary to the requirements of

section 274 Cr. C. ? IV Merits of the appeal [ 40 ] Unlike a person who is found guilty of an offence punishable by way of indictment, the Crown may not appeal from an acquittal of such an offence save on a “ground of appeal that involves a question of law alone / motif d’appel qui comporte une question de droit seulement” (section 676(1)(

a) Cr. C. ). It may not appeal from an acquittal of an indictable offence on the sole ground that the trial court erred on a question of fact or a mixed question of fact and law. [ 41 ] As noted above, not every error of law is grounds for a new trial. In R . v .

Graveline , [2] Fish J. explains that, to obtain a new trial, the Crown must satisfy the appellate court that the trial judge’s error might reasonably be thought, to have had a material bearing on the acquittal with due regard to the specific facts at hand. [ 42 ] From the perspective of this limited right of appeal of the Crown, the four grounds of appeal should be analyzed in turn.

IV.1 Finding of fact not supported by the evidence [ 43 ] The Crown maintains that the reasonable doubt in the mind of the trial judge was based on an assessment of the respondent's mental health which is not supported by the evidence. There is, it claims, a complete absence of evidence that X is intellectually slow, such that the judge made a finding of fact by making a diagnosis based on mere conjecture.

The Crown argues that the judge thus erred in law in assessing the respondent's credibility, which justifies the intervention of the Court and the ordering of a new trial. [ 44 ] The judge's reasons for acquitting the respondent should be recalled.

The judge did not disregard the inconsistencies and contradictions in the respondent's account, but put them in context as follows: [TRANSLATION] " … the accused seems to be afflicted with some intellectual slowness, which offsets some previously mentioned elements that are unfavourable to his credibility". [ 45 ] The Crown points out that neither of the parties raised the possibility that the respondent was unfit to give testimony before the Court of Quebec. In its factum, it writes: [TRANSLATION] "No evidence has been filed to the effect that the accused is afflicted with any intellectual slowness whatsoever".

In the Crown's opinion, the judge made [TRANSLATION] "a diagnosis" and used it to [TRANSLATION] "raise the respondent's credibility". [ 46 ] Did the judge err in law by assessing the respondent's state of health without any supporting evidence? [ 47 ] It is understood that a trial court's assessment of witness credibility is a question of fact. In principle, the Crown cannot raise such a question on appeal to impugn an acquittal;. The matter is one that goes to the jurisdiction of the court. [3]

[ 48 ] That said, the Crown is right to say that there are circumstances where the mishandling of evidence by a trial court may constitute an error of law justifying an appeal from an acquittal. This is the case, for example, when a finding of fact made by the trial judge is not supported by any evidence. [4] In R. v . J.M.H. , Cromwell J. explained this so-called jurisdictional rule: "[I]t is an error of law to make a finding of fact for which there is no evidence.

However, a conclusion that the trier of fact has a reasonable doubt is not a finding of fact for the purposes of this rule”. [5] [ 49 ] I do not believe that the judge's decision to attribute the contradictions in the respondent's testimony to his [ translation ] "intellectual slowness" raises any question of law giving rise to a right of appeal. [ 50 ] A reading of the judgment in its entirety reveals nothing to suggest that the judge thought that the respondent had a mental illness, let alone that his fitness to testify was in question. [ 51 ] Contrary to the Crown's assertion, the expression [TRANSLATION] "some intellectual slowness", as used by the judge, in no way suggests that she made a diagnosis on the respondent's state of health.

The judge does not use this expression in any way other than in its ordinary meaning: slowness here means, as in the dictionaries, [ translation ] "lack of promptness, speed, liveliness". In her oral judgment, the judge described her impression gleaned from the respondent's testimony that he was intellectually slow, which contrasts with her impression of Y, whom she described as [ translation ] "a bright and articulate young girl". Contrasting [ translation ] "brightness" and [ translation ] "slowness" in the same sentence is both usual and natural.

As employed, the expression [ translation ] "some intellectual slowness", seems to be used as a euphemism to suggest an [ translation ] "unintelligent person who has trouble expressing himself", as opposed to a person, like the complainant, who is bright and who expresses herself easily.

If there is no error of law in speaking of a [ translation ] "bright" young girl, there cannot be an error of law in speaking of [ translation ] "intellectual slowness". [ 52 ] The use of the word [ translation ] "intellectual" qualified by the adjective [ translation ] "some" does not give the judge's expression the scientific meaning the Crown ascribes to it. Admittedly, the choice of a technical word could suggest that a court made a speculative finding that an accused has a mental illness without having suitable proof in hand.

If the judge had called the respondent "bipolar" or "schizophrenic", the Crown's argument would perhaps have more weight. But that is not the case here. [ 53 ] The Crown offers nothing in support of its

interpretation of the expression [ translation ] "some intellectual slowness". Questioned on this matter at the hearing, Crown counsel suggested that the Court do an Internet search, with no further explanation. [ 54 ] The Crown's argument is patently weak. The judge's finding is neither a diagnosis nor a conjecture, but a mere observation of the facts. There is no error of law, but rather a finding of fact that is not subject to appellate review. [ 55 ] Given the strictness of the rule in section 676(1)(

a) Cr. C. , it seems to me that this ground of appeal is somewhat bold rash: not only is the jurisdiction of the Court at issue, because of the Crown's limited right of appeal but, more seriously, the Crown makes this argument to attack the reasonable doubt entertained by the trial judge, to whom deference is owed on questions of fact, in respect of a person who is presumed innocent. The Crown seems to be asking the Court to do indirectly what it cannot do directly, that is, to review on appeal the judge's assessment of credibility. [ 56 ] In the circumstances, the Crown should be reminded not only of the wording of section 676(1)(

a) Cr. C. , which limits its right of appeal, but also the legislative policy underlying this limit. [ 57 ] Developed in a particular historical context characterized by the reluctance of Anglo-Canadian law to allow for the possibility of a Crown appeal from acquittals, the Crown's limited right of appeal seeks to prevent an appeal on the facts to protect acquitted persons from the double jeopardy associated with a new trial. [6] It is worth recalling the very firm explanation of this legislative policy given by Rand J. in Cullen v .

The King : [7] At the foundation of criminal law lies the cardinal principle that no man shall be placed in jeopardy twice for the same matter and the reasons underlying that principle are grounded in deep social instincts.

It is the supreme invasion of the rights of an individual to subject him by the physical power of the community to a test which may mean the loss of his liberty or his life; and there is a basic repugnance against the repeated exercise of that power on the same facts unless for strong reasons of public policy. [ 58 ] In this case, a new trial would be nothing more than an opportunity to reopen the factual discussion of the respondent's credibility at the expense of his protection against double jeopardy.

The judge's observation concerning the respondent's intellectual slowness is not a conclusion of fact unsupported by the evidence, within the meaning of J.M.H ., supra ; rather, it is part of her explanations as to credibility giving rise to her finding of reasonable doubt. This ground of appeal should be dismissed. IV.2 Failure to correct an error in the wording of the charges [ 59 ] The Crown maintains that the trial judge erred in failing to amend the charges that wrongly placed the occurrence of all the alleged offences in district A.

It argues that the judge had the obligation to adapt the charges to the evidence, which indicates that assaults occurred in City B and in City A. [ 60 ] In its written argument, the Crown refers to the judge's power to amend an indictment and, citing, inter alia​ , Vézina and Côté v .

R. , [8] notes that the superfluous elements must be amended, which the judge failed to do. [ 61 ] At the outset, it should be noted that the Crown does not formally tie this alleged error to the application for a new trial set out in the conclusions of its written argument on appeal. [ 62 ] What importance should be given to the judge’s failure to correct the charge? [ 63 ] As noted above, the judge did in fact note the discrepancy between the evidence presented and the charges with respect to the place the accused allegedly committed the offences.

The charges state that this place is [ translation ] "in City A", whereas the evidence shows that two of the three incidents occurred in City B.

[ 64 ] Despite her observation, the judge did not correct the wording of the charges. With respect, I believe the Crown is correct in seeing this as an error of law. I would hasten to add, in defence of the judge, that the Crown never asked for an amendment of the indictment, the wording of which the Crown fact chose itself when the indictment was filed. [ 65 ] Section 601(3) Cr. C. sets out a trial court's obligation – one notes the use of the word "shall" in the English text of the legislative provision – to amend an indictment in certain circumstances.

This obligation to amend an indictment arises when it states defectively anything that is requisite to constitute the offence (section 601(3)( b )(

i) Cr. C. ), when it is in any way defective in substance (section 601(3)( b )(iii) Cr. C. ), or when it is in any way defective in form (section 601(3)(

c) Cr. C. ). [ 66 ] In the present case, the judge had a duty to amend the charges to make them consistent with the evidence because they were defective in respect of the place where the incidents allegedly occurred.

The evidence relating to these places is unequivocal: it has been clear to both parties, since the beginning of the trial, that the respondent is defending himself against the charges not as worded but in respect of the events that occurred in City B and in City A. [ 67 ] First, for the defence, the fairness of the trial is not at stake. [ 68 ] Considering the defence's argument that the respondent did not commit the acts charged, the error is immaterial. The respondent presented no alibi defence based on his absence from City B, arguing instead that he did not commit the assaults.

This precludes the possibility that the amendment of the charges would give rise to any prejudice or a new charge against the respondent. [ 69 ] As for the Crown, it refers to no prejudicial effect resulting from of the judge's error. The precise location of the offence, in this specific context, is [TRANSLATION] ”superfluous” as the term is used in the case law. In this instance, the error concerning the location of the offences may be considered as not material pursuant to under section 601(4.1) Cr.

C. , since it is not an essential element of the charge or of the respondent's defence. [9] [ 70 ] Considering the criteria set out in section 601(4) Cr.

C. , I believe that the Crown is therefore correct in arguing that the judge was required to amend the charges and that the failure to do so constitutes an error of law. [ 71 ] Should this error of law give rise to a new trial? [ 72 ] Unquestionably, the answer must be no. [ 73 ] An error of law should not serve as a basis for an appellate court to allow an appeal from an acquittal if there is only an abstract or purely hypothetical possibility that the accused would have been found guilty had it not been for the error of law. [10] In R. v.

Graveline , [11] Fish J. writes that the Crown must show that the error had "a material bearing on the acquittal". [ 74 ] Here, no one alleges that the error attributed to the judge about the wording of the charges had a direct or indirect bearing on the legality of the acquittal which was based on reasonable doubt raised by the respondent's testimony.

On the contrary, the judge's analysis considered the events that occurred in both judicial districts. [ 75 ] This ground of appeal does not justify the application for a new trial. [ 76 ] Does the error nevertheless call for a remedy? [ 77 ] I believe that the charges should still be amended to make them consistent with the evidence relating to the places of the alleged offences, pursuant to the Court's power under section 683(1)(

g) Cr. C. [ 78 ] This would have the advantage of removing all doubt that the respondent was acquitted not only in respect of the event that occurred in City A, but also of the assaults referred to in the indictment which allegedly occurred in City B.

In the event that new charges are laid against the respondent in connection with these same events, the amendment of the charges would facilitate his making of a defence of autrefois acquit, thereby avoiding a multiplicity of proceedings. [12] It should be noted that at the hearing, the Crown stated that it would not contest the Court's adding this amendment to its conclusions in the judgment, and counsel for the respondent said that she was convinced that the amendment was appropriate.

IV.3 Insufficient reasons [ 79 ] The Crown maintains that the judge's reasons are insufficient to fulfil the three functions set out in R. v.

Sheppard , [13] that is, to inform the parties of the basis for the acquittal, to account to the public for the exercise of judicial power, and to allow for a meaningful appellate review. [ 80 ] More specifically, the Crown says that it is difficult to understand how the judge could have decided to reject one aspect of the respondent's testimony and then retain it on the basis of what she called a conjectural element, that is, [ translation ] "some intellectual slowness" that the judge observed. [ 81 ] This ground must be rejected. [ 82 ] A consideration of the oral judgment as a whole confirms that the reasons are sufficient to fulfil the three functions set out in Sheppard .

The reasons are certainly not like the generic reasons given in that case.

Moreover, the judge did not err in reducing the matter to a [ translation ] "credibility contest" or in failing in her duty to apply the principles relating to the presumption of innocence in her assessment of the evidence. [ 83 ] Once doubts are dispelled as to the use of the expression [ translation ] "some intellectual slowness", the reasons make plain that the respondent was acquitted because the judge had a reasonable doubt as to his guilt and that this doubt arose because of the respondent's poor, but on the whole not completely unlikely, testimony.

The comments of Binnie J. in Walker seem to me to apply here:

"Caution must be taken to avoid seizing on perceived deficiencies in a trial judge’s reasons for acquittal to create a ground of 'unreasonable acquittal' which is not open to the court under the provisions of the Criminal Code ” . [14] [ 84 ] The judge gave sufficient reasons in her judgment to inform the Crown, the complainant, and the respondent why she acquitted the respondent. Upon reading all of the reasons, the Crown will understand that it did not discharge its burden of proof. The respondent will understand that he was acquitted because his testimony raised a reasonable doubt.

The complainant will understand that her credibility was not in question. The judge discharged her duty of accounting to the public for the exercise of her function. Lastly, the reasons allow for a meaningful appellate review.

IV.4 The corroboration requirement [ 85 ] As its last ground of appeal, the Crown argues that the judge required it to produce corroborative evidence of the complainant's testimony, when she stated the following: [ translation ] In sexual assault cases, in the absence of any witness other than the accused and the victim, it is often impossible for a court to determine according to the requisite standard of proof, that is, beyond a reasonable doubt, which version reflects the events that actually occurred, and the case law is abundant on this subject, at the first stage that the court must consider and, obviously, assess the accused's testimony. [ 86 ] It is certainly true that under

section 274 Cr. C. , no corroboration is required for a conviction for the criminal offences that are the subject of this appeal. [ 87 ] On its face, however, the judge's comment does not suggest that she required corroboration of the complainant’s testimony. The contents of the judgment clearly indicates the contrary: the judge explains, in the two paragraphs that follow the excerpt criticized by the Crown, that there is not enough evidence to enable her to conclude that the respondent's version is entirely false.

Had she truly believed that corroboration was necessary for a conviction, she would not have analyzed the respondent's testimony as she did, but would have acquitted him summarily. [ 88 ] This ground of appeal must also be rejected. [ 89 ] In conclusion I would dismiss the Crown's application for a new trial and allow the appeal for the sole purpose of amending the indictment to state that the offences charged against the respondent occurred in City B and in City A. NICHOLAS KASIRER, J.A.