r v. W. P., 2022 QCCQ 13062

R. c. W.P. 2022 QCCQ 13062 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI LOCALITY OF KUUJJUARAPIK “Criminal and Penal Division” No: 640-01-045411-213 DATE: November 29, 2022 ______________________________________________________________________ PRESIDING: THE HONOURABLE RENÉE LEMOINE, J.C.Q. ______________________________________________________________________ THE KING Prosecutor v. W. P.

Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The accused faces charges of sexual assault, breaking and entering to commit assault and assault by choking of G.F. [ 2 ] The main issue is to determine the credibility of the two witnesses according to the test proposed by the Supreme Court of Canada in R . v.

W.D . [1] THE FACTS The sexual assault The complainant’s version [ 3 ] The accused and the complainant were in a relationship for a very short period in the past. [ 4 ] The relationship ended during the complainant’s pregnancy. [ 5 ] The event occurred when their son was six months old. The complainant went out with friends and had a young neighbour to babysit the children. [ 6 ] When she returned home, she was intoxicated by alcohol. She drank four or five Smirnoff Ice during the evening. It was the first time she had been out since her son’s birth. She was drunk due to her alcohol consumption.

Without any notice, the accused had gone to her parents’ house, where the children were. He sent the babysitter home and stayed with the children. He was upstairs with her oldest son playing video games. He was sitting on her bed. [ 7 ] She was very tired and wanted to sleep. She asked them to be quiet. She removed her jeans and hoodie and went to sleep. She “passed out”. [ 8 ] She woke up because she felt pain in her legs. The accused was on top of her. She was lying on her back and he had put her legs on his shoulders.

He was having sexual intercourse with her. [ 9 ] She was wearing her top and her bra, but nothing on the bottom. He was only wearing his t-shirt. [ 10 ] She asked him to get off. He said something she did not understand. He got on his knees. [ 11 ] She pushed him back. She succeeded in removing her left leg and turning onto her right side. He lay behind her. She told him that she did not like it. She “passed out” again. [ 12 ] The next morning when she woke up, he was still there. He was lying behind her. She became angry. He left her house.

[ 13 ] She searched for her underwear in her room but found it only days later. The accused’s version [ 14 ] The accused’s version is quite different. According to him, they have never been in a romantic relationship. Essentially, they had a baby together and have a co-parenting relationship. [ 15 ] In April 2013, only one event occurred involving sexual intercourse with the complainant. He sent her a text message to arrange to see his child, who was six months old at that time. He planned to go camping on the land for six weeks and wanted to see him before leaving.

He went to House A, the home of the complainant’s parents. He stated that he always texts her before going to her home because her sister N. never opens the door to let him in. She does not like him even though he has never done anything to her or her family. He explained that her dislike of him stems from the behaviour of the complainant’s ex-boyfriend. He did something and for that reason she does not accept him, even though he has done nothing wrong. [ 16 ] He saw his son, who was in the swing. He asked the complainant to have sexual intercourse with him and she agreed.

They had consensual intercourse and he left around 9 p.m. The breaking and entering [ 17 ] The event occurred in February 2018. The complainant had her own house at the time. She lived in House B with her two children. At this time, they were not in a relationship. [ 18 ] Around 2 or 3 a.m., she heard someone knocking very hard at the door. She thought it was her father or her brother. She opened the door. It was the accused, and he was highly intoxicated. She immediately blocked him with her body to prevent him from coming inside the house. [ 19 ] He pushed her with his elbow and his shoulder.

She told him to get out. He lay down on the couch. [ 20 ] She turned on the lights and opened the living room curtains. She again asked him to get out. He was upset. He stood up and turned off the lights. [ 21 ] He pushed her and she pushed him back. He put his closed fist on her cheek. [ 22 ] She managed to leave the house and go to her sister’s home. She saw a car with a man named K. in it, and she asked him for help. He went into the house and kicked out the accused. [ 23 ] Again, the accused’s version of this event is different. According to him, he was at the home of a friend, L., with S., L.’s sister.

He drank two cans of beer. He was hungover from his previous consumption of about seven cans of beer. [ 24 ] The complainant texted the accused's friend S. to ask him to come to her home. He went and they sat on the porch. The door was wide open. He had two cans of beer with him. They went inside and nothing violent happened inside the house. He left after a short time and she locked the door behind him. The assault by choking [ 25 ] On April 2020, the accused went inside her house. She was preparing supper. He sent the children out.

He got the children dressed and sent them to his sister’s home. [ 26 ] They were alone in the house. She was cutting vegetables at the table. He was behind her in the kitchen. He put one hand on the back of her neck. She tried to push his hand away but he squeezed even harder. [ 27 ] She could not breathe. He squeezed her neck for about five minutes. After, he lifted her hair to see if there was a mark. [ 28 ] He stayed at her house for approximately 30 minutes and then left. [ 29 ] The accused denies any violent behaviour towards the complainant.

He explained that G.F. had asked him to bring some things for his son. [ 30 ] The complainant was sitting at the table, cutting vegetables. He put his right arm across her chest and told her he “missed her”. He did not do anything violent to her. The testimony of E. P. [ 31 ] E. P. is the accused’s mother. [ 32 ] She explained that when her son was released from jail, she was sitting on the balcony at her house. She does not remember the exact date. [ 33 ] She saw G.F., driving an ATV, stop and look in her direction. She saw her drive back and forth a few times. She drove past her residence almost every day.

A photograph of G.F. in an ATV was filed as an exhibit. LEGAL FRAMEWORK

[ 34 ] The accused is presumed innocent unless and until the Crown proves his guilt beyond a reasonable doubt. [ 35 ] The presumption of innocence and the standard of proof beyond a reasonable doubt apply in a sexual assault case the same as in any other criminal trial. However, there are aspects that can make the application of the standard difficult. [ 36 ] The offence of sexual assault is usually committed when there are no witnesses other than the complainant and the person accused of the offense. It is the classic he said/she said scenario.

In that situation, it would be wrong for the trial judge to decide the case based on which is the more credible version of the two. It is not a credibility contest. [ 37 ] The correct application of the burden of proof requires the judge to acquit if the evidence of the accused, when seen in the context of all of the evidence, raises a reasonable doubt as to his guilt. It is possible that the judge might not fully believe the accused’s version of the events and might find the complainant’s version to be more credible, but still be uncertain as to what actually happened.

The conclusion that the accused is probably guilty is not sufficient. In that situation, there is a reasonable doubt, the benefit of which must go to the accused, even if the complainant’s version is more believable than that of the accused. [ 38 ] In R . v.

W(D) , [2] the Supreme Court recommended the following three steps: − 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 a reasonable doubt by it, you must acquit; − Third, if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused; [ 39 ] The Court must avoid judging the credibility of a complainant based on myths and stereotypes about how victims react or should react to abuse. [ 40 ] No adverse inference against the credibility of the complainant may be drawn based on the timing of disclosure.

Credible complainants may or may not report the incident immediately, for multiple reasons. [3] . [ 41 ] It is also an error of law to consider that the complainant’s consent to sexual activity on a previous occasion or to some form of sexual activity can be deemed to be ongoing consent to all sexual activity. [4] ANALYSIS The sexual assault offence [ 42 ] The accused, W. P., chose to testify in his own defence. [ 43 ] He insisted that he has never be in a romantic relationship with the complainant. [ 44 ] In fact, he was in a relationship with A. H. and had two children with her.

The complainant was also in a relationship with another man. [ 45 ] He described their relationship as only a co-parenting one. [ 46 ] In April 2013, he went to House A to see his son before going camping on the land. He asked G.F. to have sexual intercourse with him and she agreed. From someone whose relationship with the complainant was not romantic and based only on co-parenting, his request to have sexual intercourse with her seems to contradict his own description of the nature of their relationship at that time. [ 47 ] The accused stated that he has a very good memory.

Indeed, he is able to remember what the complainant was wearing that night in April 2013, almost 10 years ago, and the fact that the baby was in the swing when he arrived at the complainant’s residence. [ 48 ] The Court must qualify the accused’s memory as phenomenal if he can remember such insignificant details. It is important to underline that, according to the accused’s version, nothing special happened other than the fact that he had consensual sexual intercourse with the complainant.

In that context, the Court finds his memory suspect due to the efforts he made to answer every question to demonstrate his good memory of even the most trivial details. [ 49 ] During cross-examination, the accused became confused when the prosecutor asked why he did not visit his son in 2015 before going camping. First, he explained that it was because the complainant’s sister N. refused to let him in, and later, he explained that his spouse, A. H., was upset and did not want him to see his son. Finally, he said it was for both reasons.

This part of his testimony was very difficult to follow and the Court considers his version to be evolving. [ 50 ] During cross-examination, the accused became reluctant to answer some questions and contested the way he was cross- examined. He constantly asked the prosecutor to repeat the question. This attitude affected his overall credibility. [ 51 ] The Court also remains sceptical about the accused’s explanation of why the complainant’s sister N. refused to let him into the house.

He stated that he had done nothing to her, the family or the complainant that explained why he was not welcome in her parent’s house. According to his version, it was because one of the complainant’s previous boyfriends had done something that was unrelated to him but that affected his relationship with her. [ 52 ] The accused did not give any details to explain what impact someone else’s behaviour had on the fact he was not welcome in this house. Without more information, the Court is left with a serious question about his explanation.

[ 53 ] After reviewing the evidence in this case, the Court does not believe the accused with regards to the circumstances that led to the sexual activity. [ 54 ] The defence theory that G.F.’s complaint against Mr. P. is somehow connected to the fact that she was angry because she did not like the accused’s new girlfriend does not affect her credibility. [ 55 ] According to the evidence, the complainant sent a message to the accused because she did not want her son to be in contact with his girlfriend. The message seems to be related to a co-parenting discussion.

Nothing in this message is related to some kind of revenge against the accused. It may be that certain circumstances motivated her to report something that happened in the past to the police. There are many reasons why a victim of sexual assault does not report events to the police sooner. This is not relevant to determining whether the victim has been sexually assaulted. [ 56 ] In his defence, the accused also testified that the complainant regularly drove her ATV past his parent’s home.

The accused’s mother testified to this effect and a photograph of G.F. on her ATV in front of the home of the accused’s parent has been filed as an exhibit. [ 57 ] The complainant admitted that she regularly drove her ATV in the community, either alone or with member of her family. She admitted in her testimony that she drove on that street when she went for a ride in the community. She has a friend who lives on this street but she did not visit her. [ 58 ] This evidence supports the conclusion that the complainant regularly drove past the accused’s house. She did nothing more than that.

Town A is a small community. The Court does not find anything of relevance in the complainant’s behaviour. [ 59 ] The Court is of the opinion that the version of the accused and his defence do not raise a reasonable doubt. [ 60 ] Even if the Court is not left with a reasonable doubt by the accused’s defence, it must decide if the prosecution has proved all the elements of the offence of sexual assault beyond a reasonable doubt. [ 61 ] Counsel for the defence suggests that the Court should draw a negative inference from the fact that the complainant does not want to face the criminal justice system.

First, G.F. sought a postponement because she had a backache, then she asked to testify via closed-circuit television so that she did not have to face the accused at the trial. [ 62 ] Counsel for the defence also argues that the complainant said she had difficulty during cross-examination, and that she hindered its efficiency by interrupting frequently. She suggests that the Court should interpret her behaviour as a way of avoiding cross- examination when she felt pressured to answer the questions. [ 63 ] The Court must exercise caution in the face of such an argument.

First, the Court refused to grant a postponement for medical reasons so that the trial could proceed. When that decision was rendered, it was clear that the Court would pay particular attention to her state of health and allow a recess if necessary to accommodate her situation. [ 64 ] Second,

section 486.2(5) of the Criminal Code specifically provides tools to facilitate the testimony of a complainant in a sexual assault case. The Court decided to allow her to use closed-circuit television to ensure that she was able to testify and to favour the giving of a full account of the event. [ 65 ] The Court should not draw the conclusion that the complainant was trying to avoid facing the justice system.

In fact, most of her testimony was provided in the courtroom, and other than saying that she was suffering after a certain period of time, nothing in her behaviour allows such an inference to be drawn. [ 66 ] After review, the Court is of the opinion that there are no inconsistencies in G.F.’s testimony concerning the offence of sexual assault that occurred in April 2014. She did not hesitate to admit her state of intoxication. She was able to explain why she woke up after falling asleep. It was because she felt pain in her legs, specifically in her thighs.

It is not usual to feel that kind of pain when being sexually assaulted. She explained her pain by the fact that her legs were on the accused shoulders. [ 67 ] There is no exaggeration in her testimony. She did not try to hide her state of intoxication and the reason she just wanted to go to bed when she came home. She did not intervene even though the accused was in her room playing video games with her oldest son. She was intoxicated and just wanted to sleep. [ 68 ] The defence suggests that her credibility is affected by her illogical behaviour.

She left her baby with a 13-year-old babysitter, who was not there when she came back. The accused was there with her young son playing video games and she did not do anything. [ 69 ] G.F. was a single mother of two young children. She decided to go out with friends and entrust her children to a babysitter. She came back under the influence of alcohol. Nothing in this behaviour is relevant to the assessment of her credibility.

On the contrary, she did not try to embellish her situation by hiding parts of that evening. [ 70 ] The complainant’s testimony about what happened to her that night is credible. [ 71 ] The Court is of the opinion that the prosecution has proved all the essential elements of the offence of sexual assault beyond a reasonable doubt. The accused applied force by assaulting G.F. sexually without her consent.

It is clear from the evidence that the complainant was unconscious when the accused initiated sexual activity with her, and when she woke up, she clearly expressed her disagreement by telling him to get off her and pushing him.

[ 72 ] The Court finds the accused guilty of sexual assault. The offence of breaking and entering [ 73 ] The accused stated that G.F. had invited him over that night by sending a text message to his friend S. to ask him to come to her home, and that this invitation was sent at around 3 a.m., when the bars closed. [ 74 ] The complainant stated that she had no phone at home at that time. [ 75 ] The evidence establishes that the accused and the complainant were not in a relationship at that time. Mr. P. sometimes went to her home during the day or in the evening to see his son.

He was in a relationship with another woman. [ 76 ] According to Mr. P., he went there, but nothing special happened. He left after a certain period of time and locked the door behind him. [ 77 ] Why did she ask him to come to her home at 3 a.m. for no particular reason? Considering the nature of their relationship at that time, that assertion is questionable. Although the Court considers it surprising that the complainant would ask him to visit her in the middle of the night, it remains possible.

The Court is still uncertain of what exactly happened that night. [ 78 ] Although G.F.’s version of events is more probable, the Court is left with a reasonable doubt as to the accused’s guilt. [ 79 ] Mr. P. is probably guilty of breaking and entering with intent to commit an assault, but that is not sufficient to meet the burden of proof in criminal matters, which is proof beyond a reasonable doubt. Assault by choking [ 80 ] The versions of the accused and the complainant are very different.

The accused admitted that he went to G.F.’s home to bring something there for his child. [ 81 ] He confirmed that G.F. was in the kitchen cutting vegetables, as she described. According to his version, he merely hugged her and told her he missed her. [ 82 ] The complainant, for her part, stated that he came to her home and sent the children to his sister’s house. For no reason, he put his right hand on the back of her neck. She tried to push him away, but he squeezed harder. [ 83 ] She stated that she could not breathe but did not explain why exactly.

If the accused had put his hand on the front of her neck, it would have been clear why she could not breathe because the accused pressing his hand against her throat would deprive her of air. She stated that he did it for five minutes. [ 84 ] Finally, in cross-examination, she was confronted with her previous statement that the accused stayed at her house for approximately 30 minutes. [ 85 ] Both versions are unclear and raise questions about the event. [ 86 ] The accused hugged the complainant and told her that he missed her.

He admitted that his relationship with the complainant both before and after that event was not a good one. [ 87 ] The complainant, for her part, stated that the accused choked her by putting his hand on the back of her neck. It is difficult to understand why she could not breathe. She said he did so for approximately five minutes, but in her statement to the police she also declared that he was at her house for 30 minutes. In her testimony, she said that he did not speak and left immediately after his action.

It is difficult to understand what happened during those 30 minutes. [ 88 ] Even though the Court does not entirely believe the accused’s version, in the context of the whole of the evidence, the Court is left with a reasonable doubt as to whether the accused is guilty of this offence. FOR ALL THE ABOVE REASONS THE COURT: [ 89 ] DECLARES the accused guilty on count 1, of an offence of sexual assault; [ 90 ] ACQUITS the accused on count 2 and 3, in regards to the offences of breaking and entering and assault by choking. __________________________________ RENÉE LEMOINE, J.C.Q.

Mtre Annie-Claude Breton Attorney for the prosecution Mtre Lauren Dahan

Attorney for the accused Dates of hearing: July 20, 2022 July 21, 2022 July 22, 2022