2013 QCCQ 6497, 2013 QCCQ 6497

R. c. G.G. 2013 QCCQ 6497 COURT OF QUEBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF LONGUEUIL TOWN OF LONGUEUIL « Criminal and Penal Division » Nº : 505-01-079395-089 DATE : May 17, 2013 ______________________________________________________________________ THE HONOURABLE RICHARD MARLEAU, J.C.Q., PRESIDING ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor c. G. G.

Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The object of the present judgment is to conclude if the accused is guilty or not of sexual touching and sexual assault on the person of his granddaughter who was then 7 years old. [ 2 ] The mother of the complainant is H. N.. The father of the complainant is the accused's son. The accusation originates from what the mother witnessed on October 2 nd , 2008 [1] . [ 3 ] The accused was staying over for the night at their residence.

That particular day, he had arrived in the afternoon and was to leave early the next morning. The accused was dividing his time between Town A in the summer and Florida in the winter. [ 4 ] The child had been allowed that night to go downstairs in the unfinished basement to sleep with the accused. The basement was pretty much “in the rough”. A double bed was alone in one of the future room and was used by the accused that night. Both parents and other siblings were upstairs.

Shortly after the child went downstairs, the mother decided to go check on her to make sure if she had her “pull-ups” for the night [2] . [ 5 ] What follows is what unfolded from there and eventually led to the present accusations. THE MOTHER'S DISCOVERY [ 6 ] She hears the accused say “Hide” when going down the stairs. She thinks that they are playing. Both are under the blanket with their head covered when she reaches the room. [ 7 ] She asks her daughter about the pull-ups. The child does not answer directly to the question.

Instead, she answers her that she will be mad. [ 8 ] At the same time, the mother sees her daughter’s pajamas bottom on the floor besides the bed. [ 9 ] She flips over the blanket. The complainant has no clothing on the lower part of her body and her top is rolled-up at waist level. The accused has his underwear on, a bit lowered on one side, his back to her and the child, facing the wall and looking as he was asleep. [ 10 ] She takes hold of the complainant and pulls her to the adjoining future bathroom. Asked if the accused had touched her, she says no. They go immediately after upstairs.

The same question is asked again, with the same answer. The complainant then goes with her siblings. [ 11 ] Shortly after, the complainant comes back to her mother and says, “I don’t want X [3] to go to jail”.

[ 12 ] Her immediate conclusion is that these words must flow from the accused. Such a statement has only one possible

interpretation: it confirms that he had sexually abused the complainant somehow. [ 13 ] Faced with this revelation, the father suggests that “they sleep on it” and decide the course of action the next morning. [ 14 ] No one will talk to or confront the accused. He will stay in bed downstairs for the night. The family will not see him either the next morning when everyone leaves early. [ 15 ] The mother then decides that maybe her own mother N. N. (the grandmother) will be able to help. She has a good and trusty relationship with the complainant.

Hopefully, she will be able to have her confide as to what exactly happened. They proceed to her house. The mother explains to the grandmother what happened the night before. It is then agreed that the grandmother will take the complainant to McDonald’s for breakfast and try to obtain her confidence and the full story. [ 16 ] On the way to the restaurant, the complainant is questioned about “what happened last night”, to no avoid. Asked again, the answer is the same. The grandmother then says that they might have to go to the hospital. Asked why, she answers that a doctor " will have to check her out ".

The complainant became hysterical, banging her head on the child’s seat and telling that nothing happened, that it would do harm to her parents, that it was her secret, that X would go to jail. [ 17 ] The word “secret” triggered immediately for the grandmother the conclusion that the complainant had indeed been molested. Those were the kind of words used in her youth when she was herself victim of sexual abuse. [ 18 ] Further questioning then brought out the information that it had been done “a hundred of time” or each time that X was in her presence. She had asked him to stop but he would nevertheless continue.

He would wait until everybody was asleep in the house and then come wake her up upstairs and bring her downstairs. [ 19 ] The only specifics in regard of what type of abuse occurred remained the complainant’s statement that “he touched me there” without saying or pointing where on her body the touching had occurred. The grandmother assumed that it was “her privates”. [ 20 ] This is all repeated by the grandmother to the mother upon the return from the restaurant. [ 21 ] Both parents then decide to call the police and report the matter.

This is done with the local Peacekeepers the same day. [ 22 ] Officer Edward Stacey is assigned the task of videotaping the complainant’s statement. He was assisted by Mrs Tawnie Miller Bush from Social Services. She already knew the family for unrelated matters. The call made to Mrs. Bush to assist the officer was stating a case of sexual abuse. [ 23 ] The video is on record as an exhibit and now constitutes the testimony of the complainant at trial following a voir dire. [ 24 ] Suffice to say that based largely on the expert testimony of Mrs.

Abba Singh, the Court was satisfied that the complainant’s testimony would not be available for the trial. Both the video and the statements made to the grandmother were admitted in evidence as an exception to the hearsay rule. [ 25 ] The Court will discuss the relevant part of Mrs. Singh testimony and the content of the video in the analysis that follows.

DEFENSE [ 26 ] The accused’s testimony is pretty straightforward concerning that day. [ 27 ] He had helped out his son, was sleeping over at his house, was getting up early the next morning to visit his father in Town B and was leaving a couple of days later for Florida. [ 28 ] His room was basically an unfinished bedroom in the basement. In fact, save for a few divisions, the basement was not finished. The only piece of furniture in the room was a bed.

No doors were present in any of the rooms downstairs and neither at the top of the stairs. [ 29 ] He decided to go to bed around 9 – 9 h 30 p.m. [ 30 ] Shortly after, the complainant came to join him in the double bed saying, “Mummy told me I could sleep with you”. [ 31 ] He was wearing boxing shorts, pulled down a bit to alleviate the pressure on his backache. [ 32 ] They played “I SPY” for a while with a flashlight and after a few minutes, the accused told the complainant that the game was over and that he was going to sleep. [ 33 ] He then turned toward the wall, fell asleep and never woke up until early the next morning.

The house was then empty. He had breakfast and left. [ 34 ] His son never showed up as agreed a couple of days after in Town A to help him out with his trailer. It did not really surprise him since his son is not the most reliable person. [ 35 ] Once in Florida, he had an uneasy feeling due to the lack of communication with his son. The answer came later in November. He received an e-mail from the family saying that he should be ashamed of what he had done and asking him not to contact them with no specifics offered as to what he had done. [ 36 ] He didn’t understand why such allegations were made.

Phone calls to his son did not arrange or clarify things. He then decided

to let the matter go reflecting that if " they don't want to see me, they won't see me ". [ 37 ] He denies any inappropriate conduct toward the complainant, either in October 2008 or before. He can recall only one time when the complainant came to join him in bed before October 2008. [ 38 ] Some allegations from the child that something would have taken place in Florida don't make sense either.

He admits that the family came over for holidays, but explains the sleeping arrangement that would render impossible for him to have been alone with the complainant. [ 39 ] Finally, he did not either invite or request that the complainant join him on October 2 nd 2008. The complainant came on her own downstairs saying that her mother had agreed.

POSITION OF THE PARTIES [ 40 ] The defense argues that we have no clear description or indication as to what exactly took place if we are to accept the evidence of the prosecution. [ 41 ] The mother did not see anything and did not receive any confidence from the complainant, save in very general terms. [ 42 ] From there, it was assumed that something wrong had happened and this is how it was proposed to the grandmother who acted also on that assumption. [ 43 ] Furthermore, we have to question ourselves on the probative value of the complainant’s statements in such a context. [ 44 ] In view of the accused’s defense, this evidence is far from convincing and raises a reasonable doubt as to the accused’s guilt.

He should be acquitted. [ 45 ] For the prosecution, nothing should justify putting aside the evidence from the complainant and her family. It is highly probative. [ 46 ] The accused should simply not be believed. [ 47 ] As for the evidence that he presented, it should not raise a reasonable doubt in regard of the whole of the evidence. THE LAW [ 48 ] The Court is bound by the three steps analysis of the Supreme Court of Canada in R. v.

W(D) 1991 1RCS 7 in regard of assessing the evidence: -First, if you believe the evidence of the accused, obviously you must acquit. -Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. -Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, based on the evidence that you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 49 ] Furthermore, the judge must factor in all of the evidence tendered in order to determine if the accusation has been proven without a reasonable doubt or if it still subsist a reasonable doubt in favor of the accused [4] .

APPLICATION TO THE PRESENT FILE [ 50 ] One of the arguments proposed by crown to reject the accused’s testimony is the fact that he never woke up once the mother discovered the complainant with him in bed. Common sense would dictate that he had to be awake and he obviously lies in consequence. [ 51 ] The Court disagrees. [ 52 ] Nothing can conclusively lead us to believe that he was faking his sleep. If we were to conclude that such an explanation (that he was sleeping) is so out of touch with what would be expected to happen, one could easily turn the table on the mother.

Would it not make sense to wake up the accused and ask him what this is all about or, later on the same night, confront him with that the complainant had just said? [ 53 ] Evidently, this type of approach to discard one’s evidence is simply not accurate or fair. It would first of all negate or ignore the rest of the evidence of each party. It would also take one “incident” in the narrative and isolate it out of context to draw conclusions. It also imposes a burden on only one of the parties to rebut a hypothetical different reaction that someone could have had in the same situation.

Consequently, on the whole of evidence, “I was already asleep and never woke up” is as good an answer as “we decided to sleep on it before doing anything” and no further inferences are to be drawn in isolating either one of these statements. [ 54 ] The Court also disagrees with Crown as to the inference to be drawn following the reaction that the accused had in November when he received the e-mail, or more precisely, that he knew very well why the family was giving him the cold shoulder. [ 55 ] Wording of an answer in cross-examination will not always be a true copy of the answer offered in examination in chief.

There is nothing unusual as such with this reality .One could even see in it that it is somehow a guarantee that we are not faced with a witness who is reciting a “learned lesson”, or worse, a “learned lie”. [ 56 ] Much more important is the core of these statements. Is the essence of the testimony the same? If the answer is yes, it cannot be

put aside or be deemed unreliable due to minor alterations. [ 57 ] In fairness to Crown, the accused did seem to have some more details when cross-examined on that matter, but his testimony was not in contradiction or totally irreconcilable with what he had testified in chief. [ 58 ] These preliminary findings now being laid, it does remain that the accused’s evidence has to be analyzed in regard of the whole of the evidence. This evidence is obviously also the one presented by Crown.

This brings us to the complainant’s testimony. [ 59 ] One has to remember that this evidence was introduced as an exception to the rule prohibiting hearsay. [ 60 ] One has also to remember that the threshold to admit such evidence as reliable after a “voir dire” does not automatically confer to that evidence an absolute reliability. [ 61 ] What is this evidence? [ 62 ] First of all is the video.

It is clear from the viewing that the complainant is not very cooperative in the beginning. [ 63 ] Officer Stacey starts by saying that she had spoken to her grandmother [5] and ask her if she would like to talk. [ 64 ] She refuses. She says that her mother will say it for her. [ 65 ] Both the officer and Mrs. Bush then insist, “We were hoping that you would tell the story”. Once again, there is no answer and the complainant wants her mother in the interview room. This will be done. [ 66 ] She is then again directed in what is expected of her, namely to tell what she had told her “grandma”.

This is said with suggestion that she is a big girl, that she is brave and that she did not do anything wrong. [ 67 ] The complainant will then declare “he touched me” referring to the accused and that it had taken place downstairs in “X’s room”. She will then describe that it took place under the blanket. [ 68 ] Asked how many times this would have happened, she answer “100 times”. [ 69 ] From there, Mrs. Bush takes over the questioning.

The answers will reveal that it could be 20 times (she puts up her hand and feet when asked to explain a little the “100 times”), that he only touched her with his hands and that is was a secret. She tells what happened the night before, namely that he had put a blanket over her head, took out her pajamas and touched her. The only indication as to where on her body she was touched will be a hand gesture pointing towards her genitals. [ 70 ] Questioned as for all the other times she answers that it was always in the same room, never anywhere else.

It was a secret and either she fell asleep with him or returned upstairs in her room when it was over. ANALYSIS OF THE CROWN EVIDENCE [ 71 ] One has to put in context the video. It all started with the mother discovering her child without her pajamas bottom in the same bed as the accused who is asleep. [ 72 ] No direct evidence of wrongdoing is seen by the mother. Nevertheless, she is worried and asks the only logical question for her in the circumstances: “did he touch you?” [ 73 ] She will not get an immediate answer. It will take a little while before the child admits that she had “been touched”.

This difficulty to elicit details from the child will lead her to bring the complainant to her grandmother the next morning. The mother obviously assumes that sexual touching has taken place at the very least the night before. Those are the premises upon which the grandmother is to intervene.

The purpose is clear: hopefully, the grandmother will succeed in getting the “full story” from the child. [ 74 ] No undue pressure was put on the child, but some coaxing was nevertheless necessary after the initial statement in the car that nothing had happened. [ 75 ] The grandmother did not go with very open questions to elicit confidence from the complainant. She pretty much directed the conversation and her questions to what happened the night before. Once again, we do not have anything else than the general statement that “he touched me” to describe the accused’s wrongdoing.

As the grandmother said, she assumed that the complainant was referring to “her privates” when saying so. [ 76 ] One has to open a sidebar at this point of the analysis. Neither the mother nor the grandmother did wrong or were to blame.

They are obviously caring and loving toward the complainant and they did what they thought best in the circumstances to get to the truth of the matter and eventually protect her. [ 77 ] However, their firm belief in what the child said and the assumptions that flowed from it cannot become in itself evidence of what took place or become corroboration of the child’s testimony. [ 78 ] The bottom line is that apart from the revelations made in October 2008, the complainant never did confide anything else, save on one occasion many months after when she mentioned to her grandmother " that it also had happened " when the family was on holiday in Florida and staying with the accused in his trailer.

Once again, no specific details were offered as to the circumstances of how or what exactly had happened. [ 79 ] We now turn to the experts’ testimony and the report produced.

[ 80 ] Mrs. Singh testimony was first relevant in order to explain why the complainant could not testify at trial. However, the rest of her testimony is not conclusive on the issue at trial. [ 81 ] A psychologist, who was not heard, referred the child to her. The basis of the referral was “allegations of sexual abuse”. However, the child never admitted anything concrete in therapy with the psychologist. The referral with the art therapist (Mrs. Singh) was in the hope that she would find ways to have her open up. [ 82 ] Mrs.

Singh is therefore in touch with the complainant on an assumption of sexual abuse based on somebody else opinion. Mrs. Singh will see the child from May 2009 to February 2010 and again since May 2012 for an unrelated matter [6] . [ 83 ] Her report and case history starts by qualifying the complainant as “being a victim of sexual abuse”. This is obviously not flowing from what she discovered over the course of the therapy since she never brought up the matter directly with the child. She instead expected the child to open up by herself over the duration of the therapy, as wished by the psychologist.

She never did. [ 84 ] Once all has been cleared and said concerning this therapy, the following emerges: − The complainant never said anything precise or concrete in regard of being a victim of sexual abuse. − Even though she shows behavioral and psychological symptoms associated with a sexual abuse victim, these symptoms are also compatible with types of problems other than sexual abuse. − She did express some fear in relation with her grandfather but without any detail as to the reasons why. [ 85 ] This now brings us to the probative value of the complainant’s testimony. [ 86 ] The evidence that is proposed as an exception to the hearsay rule is for the truth of its content.

However, this evidence is not automatically established as reliable with any possibility of assessing it in the context of the whole of the evidence. [ 87 ] As the Supreme Court explained in R. v. Klelawon 2006 SCC 57 [7] : 6.1 Distinction Between Threshold and Ultimate Reliability: a source of Confusion 50 As stated earlier, the trial judge only decides whether hearsay evidence is admissible.

Whether the hearsay statement will or will not be ultimately relied upon in deciding the issues in the case is a matter for the trier of fact to determine at the conclusion of the trial based on a consideration of the statement in the context of the entirety of the evidence. It is important that the trier of fact’s domain not be encroached upon at the admissibility stage. If the trial is before a judge and jury, it is crucial that questions of ultimate reliability be left for the jury – in a criminal trial, it is constitutionally imperative.

If the judge sits without a jury, it is equally important that he or she not prejudge the ultimate reliability of the evidence before having heard all of the evidence in the case. Hence, a distinction must be made between “ultimate reliability” and “threshold reliability”. Only the latter is inquired into on the admissibility voir dire. [ 88 ] The threshold reliability was met here. But the whole of the evidence had not been heard. Maybe the accused will testify and present witnesses.

Maybe the witnesses already heard on the voir dire will testify on other relevant matters once the statements are introduced or will simply be called back to counter the evidence of the accused. Therefore, when everything has been said and done, one has to revisit the hearsay evidence and assess its truth or ultimate reliability in view of all the evidence. [ 89 ] The first thing that colors this evidence is that the statement did not come voluntarily or spontaneously from the child. [ 90 ] One could well imagine that the mother could have asked, “Why did you remove your pajama bottom?” That was not the case.

It is clear that she assumed immediately that no innocent explanation could be offered with what she was witnessing. Therefore, her question was reflecting her concern: “Did he touch you?” [ 91 ] The same applies with the grandmother the next morning. She already has her mind set up that the child had been somehow abused the night before. Even if she tries to remain neutral to elicit the child’s confidence, her questions are directed to “what took place last night”. [ 92 ] The same pattern is repeated at the police station.

The complainant is asked and prompted to repeat what she had told her grandmother, not what happened. [ 93 ] The child will never go further than the general statement that “he touched me”. Save for the police video where she will say that he only used his hands to touch her and an indication once with her hands pointing in the general direction of her genital, we are left in the dark as to what kind of touching exactly occurred. [ 94 ] The child was 7 years old.

We can reasonably infer that she would have been able to offer some additional details contrary to a much younger child. [ 95 ] Furthermore, one cannot conclude that a statement such as “he touched me” is highly relevant in itself.

This is not reflecting the unusual knowledge in sexual matters of a child such as a three years old who is telling her mother " He put his birdie in my mouth” thirty minutes after the sexual assault took place at the dentist's office and who also had a wet spot on her sleeve that turned out to be a mixture of saliva and semen of the accused [8] . [ 96 ] We also have in evidence from the complainant her statement that it occurred between 20 and 100 times and that it was always in the same bed in the same room downstairs, save for the incident in Florida. [ 97 ] We are completely in the dark if it is realistic to say so.

Was it possible or easy for the accused to come back upstairs, wake up the child, and bring her downstairs when everybody would be asleep in the house? Was she even sleeping alone in her bedroom to start

with? Is it realistic that he had indeed been sleeping over that many times over the years? There is also her statement that when it wasover, either they fell asleep or she went back to her room. She was never found in bed with the accused when she was not supposed to bethere? She was able to back upstairs noiselessly each time? This is not said to impose a burden of corroboration on the complainant'stestimony. Nevertheless, neither party examined or cross-examined any of the witnesses on these topics. We only have the testimony of the accused that just once before October 3rd 2008, the child had slept with him.

This evidence was not challenged. [98] For the Court to conclude that the statement of the complainant concerning the number of occurrences is to be believed at facevalue without reserve when it is so vague to start with is too arbitrary a decision in the circumstances. [99] Sexual assault cases often boil down to what some English speaking judges describe as a “she said – he said” case, meaning acase that pits the credibility of a single Crown witness, the complainant, against the accused as the single defense witness. This is a fairassessment of the present case.

In appearances, more witnesses than just the complainant did testify for Crown, but all their actions withthe child were influenced and tainted by the firm belief that she had been sexually abused. [100] At this point of analysis, one could very well propose that the Court has overlooked the first two steps of analysis of W.D. Butwe do have to assess the evidence of the accused in the context of the whole evidence heard. This sometimes lead, as is the case here, tofocus first on the crown's evidence.

This evidence is, after all, the " evidence " against which the evidence of the accused will bebeleived or not or will raise a reasonable doubt or not. FINAL CONSIDERATIONS AND CONCLUSION [101] The accused has no burden to establish why the Crown evidence would be untrue and has neither the burden to establish hisinnocence. [102] These principles are well established and much better worded in the citation that follows at para. 88-90 of P.G. c.

R. 2007QCCA 1160: « … Car il ne s'agissait pas, ici, de départager les versions pour déterminer laquelle s'imposait par sa vraisemblance et par la crédibilité deson auteur, mais bien de s'assurer que la preuve de la culpabilité de l'appelant ait été faite hors de tout doute raisonnable[9]. 89. Dans R. c. Norman[10], le juge Finlayson, de la Cour d'appel de l'Ontario, écrit aux pages 173-174 : I do not think that an assessment of credibility based on demeanour alone is good enough in a case where there are so many significantinconsistencies.

The issue is not merely whether the complainant sincerely believes her evidence to be true; it is also whether theevidence is reliable. Accordingly, here demeanour and credibility are not the only issues. The reliability of the evidence is what isparamount. 90. Dans R. c. Ellis[11], le juge Mitchell, s'exprimant au nom de la Cour, écrit : Determining credibility is never the end in the process of judging a criminal case. The ultimate issue is always reasonable doubt. Theonus never shifts away from the Crown throughout the trial to prove its case beyond reasonable doubt.

The fact that a complainant turnsout to be a strong and convincing witness does not necessarily means such proof has been provided. The role of the trier of fact in acriminal trial is not to choose among contradictory versions but to determine whether the Crown has proven its case beyond a reasonabledoubt. […] Dans Wittmann c.

R, le juge Doyon, s'exprimant au nom de la Cour, écrit : Quoique le rôle d'une cour d'appel ne consiste pas à apprécier de nouveau la preuve “ce qu'un appelant peut cependant exiger, à l'égarddes preuves produites au procès et plus particulièrement des éléments de preuve qui peuvent lui être favorables, c'est que le juge duprocès en tienne compte. Son omission de le faire justifie l'intervention du tribunal d'appel” : R. c. Polo, (QC CA), [1994] A. Q. no 249, confirmé par la Cour suprême du Canada, (SCC), [1995] 4 R.C.S. 44; voir également R. c.

Harper, (SCC), [1982] 1 R.C.S.2. [103] Obviously, some evidence in the Crown’s case raise concern. The fact that the child was naked from the waist down when hermother went downstairs is one. Subsequent statements that “it was a secret” and that “X would go to jail” are others. [104] Those are strong indicators that can indeed bring a logical connection to sexual abuse. [105] In that sense, nothing can totally exclude the Crown’s theory.

It is possible, if not probable, that this theory is the truth. [106] However, this theory, as we saw, has its limitations when the time comes to assess it in the legal context of ultimate reliability. [107] In such a context, nothing can totally exclude the accused’s testimony. [108] Once this is said, the courts should not, as our Court of Appeal recently said,[12] apply the reasonable doubt norm on a choicebetween the evidence of the Crown and the evidence of the accused, which is prohibited by the Supreme Court notably in R. c.

C.L.Y.2008 SCC 2 , 2008 1 RCS 5 and neither should the final issue lay on a “credibility contest” that denounces the Supreme Courtin R. v. J.H.S. 2008 SCC 30 , 2008 2 RCS 152. [109] The conclusion is that on the second step of analysis proposed in W.D., the evidence of the accused is such as to raise areasonable doubt in regard of the whole of the evidence heard. [110] This conclusion normally precludes addressing the third step proposed by W.D.

[ 111 ] However, in the present file, the Court adds that this evidence, even if we were to totally reject the accused’s evidence, would not have been without reasonable doubt as to the essential elements of the infractions. FINAL CONCLUSION [ 112 ] Therefore, the Court acquits the accused of both infractions. __________________________________ RICHARD MARLEAU, J.C.Q. Me Julie Laborde Counsel for criminal and penal prosecutions For the Prosecutor Me Nicolas Lemire-Cossette Me Jean-François Lambert For the accused Dates of hearing: June 7, 8, 2012, and January 28, 2013