r v. J, 2020 QCCA 1482

R. c. Morrissette 2020 QCCA 1482 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007003-195 (550-01-106469-184) DATE: 11 NOVEMBER 2020 CORAM: THE HONOURABLE GUY GAGNON, J.A. PATRICK HEALY, J.A. MICHEL BEAUPRÉ, J.A. HER MAJESTY THE QUEEN APPELLANT – Prosecutor v. JÉRÔME-ANDRÉ MORRISSETTE RESPONDENT – Accused JUDGMENT Non-publication order according to

section 486.4 of the Criminal Code [ 1 ] This is a prosecution appeal against a judgment of the Court of Quebec, District of Gatineau, [1] in which the respondent was acquitted on three counts of criminal harassment between 1 April 2014 and 21 May 2018 concerning X, her father J.D., and her mother N.L. [2] Facts [ 2 ] The parties do not dispute the salient facts. [ 3 ] The respondent became attracted to the complainant X when she was thirteen and he was thirty. This attraction continued for four years. The respondent hoped that he could commence a relationship with the young complainant.

The respondent expressed and demonstrated his apparent infatuation in several ways over the four years, both to the young complainant and to her parents, especially her father. It concerned both the young complainant and her parents. The parents repeatedly took measures to prevent contact between the respondent and their daughter. The trial judgment [ 4 ] The judgment can be summarised briefly with respect to three conclusions.

First, the judge concludes that the evidence at the end and on the whole of the case did not prove beyond reasonable doubt one of the forms of the actus reus of harassment enumerated in section 264(2). On this basis she concludes that evidence of the respondent’s conduct did not prove beyond reasonable doubt that he caused any of the three complainants reasonably, in all the circumstances, subjectively to fear for their safety or the safety of anyone known to them, as required by section 264(1). Hence the actus reus was not proved to the necessary standard of persuasion.

Second, she concludes that the evidence did not prove an essential element of fault, which is the intention to commit

an act enumerated in section 264(2) while knowing or being reckless as to whether that conduct had the effect of causing the complainants to be harassed. Hence the mens rea of the offence was not proved. Third, and in sum, the judge concludes that the essential elements of the offences charged were not proved beyond reasonable doubt with respect to any of the three complainants. [ 5 ] The judge begins by restating the elements of criminal harassment in the Code and in the relevant jurisprudence.

Those elements are that: the accused committed one of the forms of harassing conduct enumerated in section 264(2); this conduct harassed the complainant; the accused knew, was reckless or wilfully blind to the effect of harassment caused by his conduct to the complainant; the harassing conduct caused the complainant to fear for his or her safety or the safety of another person known to him or her; and the complainant’s fears were reasonable in all of the circumstances. [3] Grounds of appeal

[6] A prosecution appeal from an acquittal in an indictable matter is restricted to a question of law under section 676(1)(

a) of theCode. The appeal must demonstrate an error of law and that the error or errors had a material bearing on the acquittal at trial.[4] Thestandard in such appeals is demanding.[5] [7] The appellant submits that the trial judge made four errors of law: First, failing to provide sufficient reasons to demonstrate an assessment of all of the evidence relating to the ultimate issue of guilt orinnocence; Second, confounding the elements of repeated communications in section 264(2)(

b) and the elements of threatening conduct in section264(2)(d); Third, misjudging the reasonableness of the complainants’ fear by adding to the prosecution’s burden a requirement to prove that therespondent intended to commit an offence against X; Fourth, failing to consider all of the evidence to determine whether the respondent had the mens rea required for proof of criminalharassment. [8] The appellant’s grounds are all based on observations made by the Supreme Court in J.M.H.[6] In that case the Court consideredsome of the ways in which a judge’s assessment of the evidence might constitute an error of law.

This might occur, for example, where ajudge fails to consider all of the evidence relating to the ultimate issue of guilt or innocence.[7] In the present appeal this is the basis ofthe first and fourth grounds and they will be considered together. For the reasons that follow concerning these grounds, it is unnecessaryfor the Court to consider the second and third grounds. First and fourth grounds: assessment of the evidence [9] In J.M.H.

Cromwell J. made these general observations concerning the review of a judge’s assessment of the evidence: [31] The underlying legal principle is set out in another decision called R. v. Morin, (SCC), [1988] 2 S.C.R. 345. The principle is that it is an error of law to subject individual pieces of evidence to the standard of proof beyond a reasonable doubt; theevidence must be looked at as a whole: see, e.g., B. (G.), at pp. 75-77 and 79. However, Sopinka J. sounded an important warning abouthow this error may be identified.

It is a misapplication of the Morin principle to apply it whenever a trial judge fails to deal with eachpiece of evidence or record each piece of evidence and his or her assessment of it.

As noted in Morin (1992), at p. 296, “A trial judgemust consider all of the evidence in relation to the ultimate issue but unless the reasons demonstrate that this was not done, the failure torecord the fact of it having been done is not a proper basis for concluding that there was an error of law in this respect.” […] [32] A trial judge is not required to refer to every item of evidence considered or to detail the way each item of evidence wasassessed. As Binnie J. pointed out in Walker, “Reasons are sufficient if they are responsive to the case’s live issues and the parties’ keyarguments.

Their sufficiency should be measured not in the abstract, but as they respond to the substance of what was in issue” (para.20). Walker also clearly holds that the adequacy of a trial judge’s reasons is informed by the limited grounds for Crown rights of appealfrom acquittals (paras. 2 and 22).

As Binnie J. succinctly put it, “Caution must be taken to avoid seizing on perceived deficiencies in atrial judge’s reasons for acquittal to create a ground of ‘unreasonable acquittal’ which is not open to the court under the provisions of theCriminal Code” (para. 2). [10] To these observations must be added a further caution that is directly relevant to the first and fourth grounds raised by theappellant. Where the appellant impugns the sufficiency of the judge’s reasons, the appellate court will only intervene if the reasons as awhole fail to disclose a cogent explanation for the judge’s conclusions.

This point was restated in Dinardo: [25] Sheppard instructs appeal courts to adopt a functional approach to reviewing the sufficiency of reasons (para. 55). The inquiryshould not be conducted in the abstract, but should be directed at whether the reasons respond to the case’s live issues, having regard tothe evidence as a whole and the submissions of counsel (R. v. D. (J.J.R.) (2006), (ON CA), 215 C.C.C. (3d) 252(Ont. C.A.), at para. 32).

An appeal based on insufficient reasons will only be allowed where the trial judge’s reasons are so deficientthat they foreclose meaningful appellate review: Sheppard, at para. 25. [26] At the trial level, reasons “justify and explain the result” (Sheppard, at para. 24). Where a case turns largely on determinations ofcredibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings. Rarely will the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons for judgment, merit intervention onappeal.

Nevertheless, a failure to sufficiently articulate how credibility concerns were resolved may constitute reversible error (see R. v.Braich, [2002] 1 S.C.R. 903, 2002 SCC 27, at para. 23).[8] [11] The appellant submits that the judge’s reasons fail to review material aspects of the evidence and to assess the credibility of thewitnesses in accordance with the principles established in W.(D.)[9] and subsequent generations of jurisprudence. That jurisprudencedoes not require a catechistic recital of the three questions raised in W.(D.).

It requires attentive consideration of the credibility ofwitnesses and, ultimately, the reliability of their evidence before the judge determines whether on the whole of the evidence the charge isproved beyond reasonable doubt.[10] Of course, for there to be an adequate assessment of credibility, it must be clear that the trier of facthas been presented with all elements of the evidence that are material to the ultimate issue of guilt or innocence. [12] In the present case the judgment under appeal fails to explain why or how the judge was left with a reasonable doubt with respectto each of the elements of criminal harassment.

The Code does not define harassment for the purposes of

section 264 but thejurisprudence on this point is well established. It denotes conduct that is more than disturbing or unsettling. Various synonyms have beenventured to describe the heightened effect that harassing conduct must demonstrate. Proulx J.A. addressed this in Lamontagne: Il ne suffit pas que la plaignante soit «vexed, disquieted or annoyed», encore faut-il démontrer que la conduite prohibée ait«tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered», soulignent ces arrêts.

[…] De ces définitions du « harcèlement » auxquelles je me range, je retiens que l'on ne se limite pas au sens classique et restreint du mot qui est de « soumettre sans répit à de petites attaques réitérées, à de rapides assauts incessants » (Le Petit Robert I, 1987).

« Harceler » peut tout aussi bien signifier le fait d'« importuner (qqn) par des demandes, des sollicitations, des incitations » (Le Grand Robert de la langue française, 1992), ce qui traduit bien l'idée qu'il doit s'agir d'un comportement qui a pour effet d'importuner en raison de sa continuité ou de sa répétition, (« vex, trouble, annoy continually or chronically »).

En raison de la distinction que fait le législateur entre l'acte interdit au sens du par. (2) et le harcèlement comme conséquence ultime de l'acte, on ne peut donc tout simplement faire l'équation entre les deux, d'où la nécessité, comme je viens de l'exposer, de s'interroger sur la définition de l'état d'« harcèlement », indépendamment des actes interdits qui peuvent générer cet état et qui sont expressément prévus au par. (2). [11] [ 13 ] In Goodwin , quoted recently by this court in Rancourt , [12] Donald J.A. wrote: “I do not accept the notion that victims of harassment must suffer ill health or major dispruption in their lives before obtaining the protection of s. 264.” [13] [ 14 ] In the present case the judgment fails to review much of the material evidence that was presented at trial by both parties, with regard to the issue of harassment, and most notably that of the complainants.

With respect to the material evidence that was omitted from the judge’s review, the judgment a fortiori fails to provide an evaluation of the credibility of the witnesses who gave that evidence. With respect to the evidence that the judge reviews, the judgment also fails to provide an assessment of the credibility of the witnesses. [14] [ 15 ] The Court must order a new trial in this appeal. For this reason it would be inappropriate to attempt any evaluation or assessment of the evidence presented before the trial judge. Some examples will suffice.

First, the judge does not examine in detail the testimony of the complainants and in particular the nature and frequency of any direct or indirect contact between them and the respondent, especially in view of the respondent’s admission of repeated contacts with the father. There is also virtually no review of contacts between the respondent and the mother of the young complainant. Examinations of this kind are essential in a thorough consideration of the actus reus of criminal harassment. The judge does not therefore provide a detailed review of the intrusive effect of the respondent’s conduct.

The judge also fails to examine in detail the mental state of the respondent as he pursued a relentless pattern of surveillance of the young complainant’s Instagram account, and thus fails to provide a thorough examination of the mens rea that is an essential element of criminal harassment. [ 16 ] Apart from a failure to review substantial portions of material evidence, the judge does not undertake a rigorous examination of the credibility of the witnesses called by both parties.

She does not examine the discrepancies and gaps in the testimony presented at trial and she thus provides no explanation of the credibility and, ultimately, the reliability of the evidence on which she bases her verdict. [ 17 ] In short, the reasons fail to explain the basis on which the judge had a reasonable doubt with respect to each of the elements of criminal harassment and these omissions do not allow this court to conduct a meaningful review of the verdict.

Further, her analysis does not demonstrate that she assessed or evaluated in any way the credibility or plausibility of the respondent’s explanation regarding his conduct or communications with the young complainant or her parents because he considered that the young complainant continued to communicate with him and showing her interest in him by means of a coded language and a colour code that she used in the content displayed on her Instagram account. Accordingly, the insufficiency of the reasons is an error of law that had a material bearing on the acquittal.

Conclusion [ 18 ] The errors in this case demonstrate the absence of an adequate evidentiary foundation for the verdict. As a result, they do not allow the Court to conclude that in their absence the verdict would have been the same. There is no alternative but to order a new trial for a thorough review and evaluation of the evidence. FOR THESE REASONS THE COURT: [ 19 ] ALLOWS the appeal; [ 20 ] QUASHES the judgment rendered in first instance; [ 21 ] ORDERS a new trial. GUY GAGNON, J.A. PATRICK HEALY, J.A. MICHEL BEAUPRÉ, J.A.

Mtre Isabelle Michaud DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the appellant Mtre Mélina Cham For the respondent Date of hearing: 29 October 2020