2010 QCCA 2237, 2010 QCCA 2237

R.P. c. R. 2010 QCCA 2237 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002302-086 (200-01-106172-061) DATE: December 3, 2010 CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. FRANÇOIS PELLETIER, J.A. GUY GAGNON, J.A. R. P. APPELLANT - Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] THE COURT ; - On the appeal from a judgment rendered on October 6, 2008, by the Court of Quebec, District of Quebec (the Honourable Judge Alain Morand), which convicted the appellant of having committed an indictable offence pursuant to

section 149 of the Criminal Code for having indecently assaulted a female, X, born on ... 1961, between September of 1974 and June of 1979; [ 2 ] After having examined the file, heard the parties, and on the whole deliberated; For the reasons of Pelletier, J.A., with which Gagnon, J.A. agrees; [ 3 ] ALLOWS the appeal; [ 4 ] SETS ASIDE the trial judgment; [ 5 ] DIRECTS an acquittal to be entered. [ 6 ] For her part, Thibault J.A. would have dismissed the appeal.

Thibault J.A. dissents concerning the following questions of law: 1) The guilty verdict pronounced by the trial judge is not unreasonable. 2) The acquittal pronounced in the majority opinion goes against the teachings of the Supreme Court in matters involving the assessment of the credibility of witnesses; 3) The judicial notice of the effects of depression on the reliability of the complainant's version. FRANCE THIBAULT, J.A. FRANÇOIS PELLETIER, J.A. GUY GAGNON, J.A. Mtre Yves Savard Savard Pigeon For the appellant Mtre Sarah-Julie Chicoine

Criminal and Penal Prosecutor For the respondent Date of hearing: March 15, 2010 REASONS OF PELLETIER, J.A. [ 7 ] The appeal questions the reasonableness of the appellant's conviction on the following charge: Between September of 1974 and June of 1979, at City A, District of Quebec, did commit indecent assault against a female, to wit: X, born on …, 1961, thereby committing an indictable offence pursuant to

section 149 of the Criminal Code . [ 8 ] With the utmost respect for the trial judge, I find that he did not adequately apply the guiding principles established by R. v. W. (D.) , [1] or those of the judgments [2] that subsequently expanded on it. In my opinion, this is what led him to deprive the appellant of the reasonable doubt which he should have been afforded.

Furthermore, I find that the judge failed to consider the confabulation theory proposed by the defence as well as the evidence in support of it. [ 9 ] The demonstration that I must perform requires that detailed context be given, mainly because of the great deference that must be shown to the trial judge's assessment of the evidence. First, I will outline the basic facts which are, for all intents and purposes, undisputed. I will then describe the opposing theories. The undisputed facts [ 10 ] In 1974, the appellant was an office clerk working for the provincial government. With his wife, G. L. [Mrs.

L], he lived on A street, in A city, near his in-laws' house on B street, where the complainant, X, lived. X was Mrs. L's younger sister. [ 11 ] The L-P couple's three children were born while the parents lived in the apartment on A street: first Y, in ..., then Z, two years later in ... 1975, and finally A, born on ... 1977. [ 12 ] The couple began asking the complainant to babysit when they were living on A street. Generally, the complainant covered the distance between her own home and that of her sister and brother-in-law's by foot.

She babysat about twice a week when both parents had to absent themselves for the evening. Mrs. L played bingo on Mondays and visited her mother on Saturdays. The appellant, for his part, often went out at night to work at his secondary jobs, as a salesman at the ... and as a security guard. [ 13 ] In July of 1977, the L-P couple moved to ..., on C street, an area that was also within immediate proximity of the complainant’s home on B street.

The babysitting continued without any noticeable changes until the appellant and his wife moved to D street in B city in October of 1978. [ 14 ] Because this new home was farther from the complainant's home, the appellant would have to go to pick up his sister-in-law and drive her back. There was, however, a noticeable decrease in the frequency of her babysitting. [ 15 ] In ... 1979, the complainant reached the age of majority. This date marks the end of the period covered in the indictment.

The evidence reveals, however, that the complainant continued to babysit until 1981. [ 16 ] In 1997, the appellant and the complainant respectively became godfather and godmother to B, A's daughter. [ 17 ] In August of 2002, Mrs. L and the complainant's mother, F., passed away. The event traumatized the complainant and sent her spiralling into a deep depression. [ 18 ] In February of 2004, the appellant drove the complainant home after a supper where the complainant, Mrs L., the appellant, A, and little B were present.

Later, the complainant recalled this drive home as one of the occasions on which the appellant sexually assaulted her. [ 19 ] In July of 2004, the complainant wrote a letter to her sister Mrs. L in which she mentioned her very poor health and her seemingly enduring depression. [ 20 ] In October, the P-L couple organized a party for little B's birthday. After the party, the appellant drove the complainant home. [ 21 ] That same autumn, the complainant wrote two letters, one to her sister M., the other to her sister Mrs. L.

These letters disclosed the sexual abuse she had suffered at the hands of the appellant almost 30 years earlier. The complainant also mentioned the attempted sexual touching that allegedly occurred in February of 2004 when the appellant drove her home. The dates on which these letters were sent and received were the object of contradictory arguments at trial. On cross-examination, however, the complainant ultimately acknowledged that the letter addressed to M. had been sent before the one addressed to Mrs. L. [ 22 ] Shortly thereafter, in November, the complainant and Mrs. L met at the Normandin restaurant.

The purpose of this meeting was for the sisters to discuss the contents of the letter of accusation that the complainant had sent to Mrs. L shortly before. [ 23 ] The file shows that Mrs. L then received four more letters from the complainant. They are dated November and December of 2004, and January and February of 2005, respectively. The complainant still talks about the sexual abuse she suffered at the hands of the appellant.

[ 24 ] In October of 2005, she went to the police station to file her complaint. The positions of the parties The complainant [ 25 ] I will offer hereafter a compendium of the key elements of the complainant's version of the facts. I specify from the outset that the various versions given are neither coherent nor consistent. The version given at trial is nevertheless the most detailed and, in a way, it is the culmination of a constant evolution since it was first verbalized in the fall of 2004. [ 26 ] According to the complainant, the abuse began on A street.

In her testimony at trial, she did not indicate the exact moment or circumstances surrounding these first instances of abuse. The letters she sent, however, which date from 2004 and 2005, address the issue more directly. I will return to this in the course of my analysis. [ 27 ] More generally, the complainant refers to four scenarios in which the accused allegedly committed the offences.

In his judgment, the judge described them as follows: [translation] The sexual abuse occurred either when (1) the accused returned home before his wife did, (2) he drove the complainant home, (3) the complainant stayed overnight and found herself alone in the living room, where she slept, with the accused after her sister had gone to bed in the master bedroom, or

(4) Mrs. L was in the hospital after having given birth. [ 28 ] In the home, whether on A street, C street, or D street, the abuse occurred with few exceptions on the living room sofa. [ 29 ] In her testimony at trial, the complainant added some details that she had never mentioned before. Thus, she stated that a few months before the alleged touching began, the appellant asked her to perform fellatio on him. He then allegedly made similar demands about once or twice a month.

She also added that the appellant sometimes asked her to swallow his sperm, which she refused to do when she did not feel capable of doing so. [ 30 ] When the abuse occurred at the home without any fellatio, the scenario was almost always the same. The appellant would take her sweater off as well as her brassiere. He would then lower his own pants as well as his underwear and would caress her with his hands and mouth while she masturbated him until he ejaculated on his thighs.

Half-naked, the complainant would then get up and go to the bathroom to wash up and put her clothing back on properly. [ 31 ] On D street, the alleged abuse also occurred when the appellant drove the complainant home after she had babysat. On those occasions, he would make an effort park the car in a back street before assaulting her. [ 32 ] Overall, for the period between September of 1975 and October of 1978, at which point the L-P couple moved to D street in B city, the abuse occurred regularly, about twice a week.

The frequency allegedly diminished noticeably once the couple moved to D street. [ 33 ] The appellant and complainant were never interrupted, nor were they ever nearly discovered by Mrs. L or by one of the children. The defence [ 34 ] The theory of the defence amounts to a blanket denial of the crimes with which the appellant is charged.

In his testimony, the appellant acknowledged that the complainant babysat for them in A street, as well as on C and D streets. [ 35 ] Generally speaking, he also agreed with the complainant as to the frequency of the babysitting, but that is the extent of any consistencies between their versions. [ 36 ] In addition to his own testimony, the appellant called two witnesses: his wife, Mrs. L, and his daughter, A. Their testimony tended to demonstrate the unlikely nature of the version submitted by the complainant. [ 37 ] With respect to the couple’s routine and their daily times of arrival and departure, Mrs.

L’s testimony corroborated the appellant's version and added a number of details. It showed that the appellant could not have committed the assaults in any of the scenarios that were part of the prosecution's case. [ 38 ] A's testimony was short. It addressed two events in particular. [ 39 ] She stated that in 1996 the complainant agreed to be godmother to her daughter, little B.

The complainant apparently insisted that the appellant be the child's godfather so that they could spoil her together. [ 40 ] Also, when a party was given for B's birthday in ... 2004, the complainant declined A's offer to drive her home.

She told A that the appellant would drive her back. [ 41 ] During arguments, the defence pointed out the multiple contradictions affecting the credibility and reliability of the complainant's version, whose overarching characteristic seemed to be its unlikeliness. [ 42 ] Still according to the defence, the complaint and the complainant's version are rooted in and explained by the complainant's health problems, her depression, and her nightmares. Counsel for the appellant submitted that the complainant confabulated and believed

her own lies. Trial Judgment [43] In the judge's opinion: [translation] The dispute, therefore, basically involves assessing the credibility of the witnesses, mainly that of the accused and of the complainantand assessing the evidence as a whole. [44] Under the heading [translation] "Some applicable legal principles", the judge noted the Crown's burden of proof. He alsoreviewed certain principles applicable to the testimony of young children. On this subject, he referred in particular to the words of WilsonJ. in R. v. B. (G.)[3] and those of McLaughlin C.J. in R. v.

W. (R.).[4] In his view, these rules should be applied mutatis mutandi, bearingin mind the fact that the events occurred over 30 years earlier. [45] Then proceeding with his analysis, the judge undertook to follow the order of consideration suggested in R. v. W. (D.).[5] [46] First, the judge declared that he did not believe the appellant. He then disregarded the testimony of Mrs. L because, in his view,it had not raised a reasonable doubt within the context of the evidence as a whole.

Finally, he disregarded A's testimony for the followingreasons: [translation] Her testimony has no impact on the verdict because it addresses only secondary facts and because the complainant chose not to letanything show prior to her first revelations. Instead, it is testimony that confirms the complainant's version and that of the other witnessesregarding the attitude that she chose to adopt until the day she disclosed. [47] The judge addressed the issue of the complainant's credibility on a whole other level.

He outlined thirteen reasons for which heshould, in his opinion, put complete faith in the complainant's testimony. [48] The themes developed all revolve around the complainant's behaviour during her testimony at trial. He also noted the similarityof the symptoms she described with those that have been clinically observed in cases of sexual abuse, the consistency and coherence ofher version, the secondary nature of her contradictions, and the fact that the assessment principles for children's testimony must beapplied to her deposition, mutatis mutandi.

Analysis [49] The existence or absence of a reasonable doubt is the cornerstone of a valid verdict. Our criminal law system leaves open thepossibility that some guilty individuals may escape conviction. It tends, however, to eliminate any possibility that innocent individualsmight be convicted and thus unfairly punished by the State. [50] The test to determine whether an accused is guilty beyond a reasonable doubt may reveal itself to be singularly difficult whenthe outcome of the trial depends on the credibility and reliability of the contradictory testimony of two individuals.

Trials for sexualoffences, however, often present this kind of scenario. As is the case here. [51] Almost twenty years ago, to prevent judges from testing the seriousness of the defence according to the credibility assigned tothe testimony of the complainant, the Supreme Court developed a formula whose fundamental objective was to preserve the integrity ofthe concept of reasonable doubt in favour of the accused. [52] In R. v. C.L.Y.,[6] Abella J., for the majority, reiterated this objective in the following terms: ...

Its[7] purpose was to ensure that triers of fact — judges or juries — understand that the verdict should not be based on a choicebetween the accused’s and Crown’s evidence, but on whether, based on the whole of the evidence, they are left with a reasonable doubtas to the accused’s guilt (R. v. Challice (1979), (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), at pp. 556-57; R. v.MacKenzie, (SCC), [1993] 1 S.C.R. 212, at 219 and 240). [53] When the formula recommended in R. v.

W. (D.)[8] is applied only in a perfunctory manner, however, it is not an infalliblesolution for avoiding the trap that can result from comparing contradictory testimony. [54] In this case, at the end of the first stage, the judge declared that he did not believe the accused. The reasons he gave hardlyconvince me.

In my opinion, their nature leaves wide open the possibility that this finding is in fact rooted in the faith he placed in thecomplainant's testimony. [55] I will not elaborate on the subject any further because I would hesitate greatly to suggest intervening if the judgment's onlyweakness was in the reasons given for setting aside the appellant's testimony.

The deference owed to a judge's findings of fact constitutesa barrier that an appellate judge should only overcome with infinite caution. [56] But the matter under review has the particularity of including third-party testimony that, if accepted, provides a few objectivemarkers to help with the assessment of the reliability of the opposing theories. In my view, on the basis of the testimony of these thirdparties, the judge could reasonably have arrived at a guilty verdict by performing the examination required in the second and third stagesof the test established in R. v.

W. (D.).[9] [57] The evidence must leave no room for reasonable doubt as to the accused's guilt. Considered as a whole, the evidence adduced in

this case does not meet this requirement. [ 58 ] First, Mrs. L’s testimony makes the general scenario submitted by the complainant impossible. The judge wrongly determined its scope and, in any event, disregarded it for reasons that, respectfully, do not stand up under analysis. Second, the confabulation theory, which the judge did not mention but which is, nonetheless, the very heart of the defence's arguments, is not frivolous. The scope of G.P.'s testimony [ 59 ] I will first address the issue of the scope of Mrs.

L's testimony. [ 60 ] To measure its significance, her version should be juxtaposed with the main elements of the Crown's theory. As the judge noted, the charge identified four scenarios of sexual assault: 1) In the home, when Mrs. L was in the hospital after giving birth to her second and third children; 2) In the home, when the appellant was the first to return to the house, and Mrs. L had not yet returned from her outing; 3) In the home, when Mrs.

L was on the premises; 4) In the car, when the appellant drove the complainant home. [ 61 ] With regard to the first scenario, the complainant submits that she was first abused when her sister, Mrs. L, had her second child. The same abuse was allegedly repeated after the birth of the third child, A. [ 62 ] These details first surfaced in the letter sent by the complainant to her sister, Mrs. L, on December 5, 2004, shortly after their November meeting in the Normandin restaurant. This is how she related the events: [translation] As I said, it started on A street. I know that this is going to be hard for you.

You had Y and you were about to give birth to your second. You had asked me to COME OVER to stay the night so I could babysit the little one the next day when you went into the hospital to give birth. It's going to hurt you because while you were sleeping, he TOOK ADVANTAGE and he did it each time you went into the hospital to give birth. [Reproduced in full] [ 63 ] She reiterated this assertion in her letter dated January 2, 2005. [translation] As I said, it all started when I would babysit, until I was how old?

And when I say that it happened when you would go to the hospital to give birth, I remember it well because I would sleep on the SOFA on A street. [Reproduced in full] [ 64 ] Mrs. L, however, adamantly denied that the complainant babysat for either of the births. Furthermore, she gave the names of those who did. [10] [translation] Mtre YVES SAVARD For the defence: And when you gave birth to your second (2nd) child - Z ... A Yes. Q ...who babysat Y that time? When you left for the hospital? Or the night before you were scheduled to go in? A My mother did.

I went to drop him off at my mother's the night before I was scheduled to go in to give birth. ... Q And when you gave birth to A... A Yes. Q ...who babysat Y while you were gone to the hospital? A My mother babysat Y. I dropped him off at my mother's again. Q And who babysat Z when you gave birth to Y - sorry, to A? A My brother, P. ... Q And did X babysit Y or Z during the births? A No. Q No? A No. [ 65 ] Questioned on these specific elements during cross-examination, the complainant did not categorically refute this version of the events.

Instead, she took refuge in memory loss, in contrast to all her initial writings and her official statements during her examination-

in-chief. The following excerpt from the cross-examination illustrates her backtracking: [translation] Q. And during the birth of the second child, Z... A. Yes. Q. ...who babysat Y? A. Well, I babysat him. Q. If I were to suggest to you that Y was left in your mother's care, in your parents' home, during the birth of Z, would that be more accurate? A. ... No idea, I don't remember. Q. During the birth of the second child, A... A. That's the third. Q. Third, sorry, you are correct. Excuse me. During the birth of the third child, A, who babysat Y and Z, do you remember? A. ... No, I do not remember. Q.

If I were to suggest to you that it was your brother P. who babysat Y. Excuse me. That Z was babysat by your brother P. and that Y was babysat by your mother during the birth of A, would that be accurate? A. No idea, I don't remember. Q. You don't remember? A. No. [ 66 ] I note in closing that the complainant's alleged memory loss concerning assertions that had been repeated steadfastly on many occasions, sometimes in writing, is such as to raise the issue of the reliability of the charges in general. [ 67 ] In other words, if Mrs.

L's testimony is credible, there cannot have been any assaults during the births of the second and third children of the P.-L. couple. Such a conclusion therefore dispenses with the first assault scenario listed by the judge. This observation is not trivial if we consider that it eliminates the complainant's story as to how the abuse began. As this undoubtedly would have been a memorable event, it might have been expected to leave a deep imprint on the victim's memory, who was after all fourteen years of age at the time.

Obviously, this was not the case. [ 68 ] Regarding the two other assault scenarios in the home, a crucial element of the Crown's theory concerns the frequency and the sequence of the assaults. I point out here that the assaults in the home constitute the core of the charges brought against the appellant. [ 69 ] More particularly, those that allegedly occurred in the apartments on A and C streets represent the vast majority of the overall abuse.

In this regard, by accepting, if only for the purpose of the analysis, Z's date of birth as marking the start of the offences, the complainant's theory consists in saying that they occurred about twice weekly in the apartments on A street and then C street. The time frame stretches over approximately 36 months, from September of 1975 to October of 1978. [ 70 ] Thus, we are talking about more or less 300 assaults, or about one hundred a year. In comparison, the assaults that occurred in the home on D street only amount to about ten for the period covered by the indictment.

I accept the complainant's version that on these last premises, the assaults occurred about once a month over more or less eight months, from October of 1978 to June of 1979. [ 71 ] At this time, I must add a detail to the judge's description of these two in-home assault scenarios presented by the complainant's version.

He wrote: [translation] The sexual abuse occurred either when (1) the accused returned home before his wife did, ..., (3) the complainant stayed overnight and found herself alone in the living room, where she slept, with the accused after her sister had gone to bed in the master bedroom . ... [Emphasis added.] [ 72 ] There is a slight inaccuracy in this description. The judge wrongly considered that the assault committed when Mrs. L was on the premises only occurred when the complainant stayed overnight.

This approach is not consistent with the complainant's version. [ 73 ] It was in B city, on D street, that the complainant was most often invited to stay overnight after having babysat. We know, however, that the assaults in this apartment represent an insignificant fraction of those of which the appellant stands accused. According to the complainant's version, she slept in the apartments on A or C streets only a few times out of the 300 or so babysitting episodes that took place there. Rather, she described instances where both parents had returned from their outings and Mrs.

L had gone to bed before the appellant. In most of these instances, after being assaulted by the appellant on the living room sofa, the complainant had washed herself and then left the premises on foot in order to sleep in her own home on B street. Here is a relevant excerpt of her testimony on the matter: [translation] Q. But on A and C streets, I was under the impression that they were very near to your own home? A. Yes. Q. Did you usually return to your own home to sleep? A. Usually, yes.

Q. So, did I understand correctly that you would stay in the living room with your brother-in-law when your sister went to bed, that the abuse that we just described would then occur, and that then you would wash up and head back to your home? A. ... ... Sometimes, I slept there. Q. But most of the time you went back home? A. Yes. Q. So, when it happened on A street and C street, you would stay there, but after having washed up you would walk home? A.

Yes. [ 74 ] This being said, it must be pointed out that the complainant is adamant about the frequency of the crimes committed on A and C streets. [ 75 ] I must address the issue of frequency in connection with the comments expressed by my colleague Thibault J.A. In her view, the complainant's "exaggeration'" with respect to the frequency of the assaults was somehow the result of skilful cross-examination. With great respect, I do not share this opinion.

The complainant tendered the twice-weekly frequency in answer to a perfectly neutral question asked during her examination-in-chief: [translation] Q- ... can you approximate the number of times that

an act of a sexual nature was perpetrated against you? A- ... It happened about twice (2) a week, about. Usually, I babysat about twice (2) a week. [ 76 ] This answer serves as background to all the testimony she gave subsequently. The cross-examination to which my colleague refers served only to confirm beyond the shadow of a doubt that this was indeed the complainant's statement. Here is a relevant excerpt of this cross-examination during which counsel for the defence invited the complainant to clarify her prior testimony: [translation] Q. OK, I will speak up, no problem.

The abuse you suffered between seventy- four ('74) and seventy-nine ('79)... A. Yes. Q. ... was it at the same frequency? A. ... What do you mean, I don't understand. Q. Did it occur at the same frequency, that is to say did it repeat itself you know... you have established the frequency... you babysat practically a minimum of twice a week? A. Yes. Q. And it would happen every time, ultimately? A. Exactly. Q. So that each time you went to babysit, because you testified at trial, you said that you babysat about twice (2) a week. Earlier you said a minimum of twice (2) a week.

And to my colleague's questions when she asked you how often the abuse took place, you said: [translation] "About twice (2) a week". Is that right? A. It might be. Q. Is it correct that the abuse, that it occurred twice (2) a week, the abuse? Mtre SARAH-JULIE CHICOINE Crown prosecutor With you permission, Your Honour, I would just like to find that page. Mtre YVES SAVARD For the respondent Yes, on page 27. Mtre SARAH-JULIE CHICOINE Crown prosecutor 27. Mtre YVES SAVARD For the respondent Q. So, every time you babysat, you were abused... A. Yes. Q. ...there were no circumstances...? A. When I babysat. Q.

That's when the abuse happened? A. Yes. Q. And it always mostly happened at what time of the day? A. Well, in the evening. Q. It was in the evening? A. It was in the evening.

Q. It was always in the evening? A. Yes. [ 77 ] According to her version, the incidents occurred on Mondays and Saturdays, except when she had her period. [ 78 ] There is no doubt that, in terms of the frequency and the sequence of the assaults in the home, Mrs. L's testimony runs directly counter to the scenarios submitted by the Crown. [ 79 ] First, she declared that, barring exceptions, she returned home from her biweekly outings before her husband did.

On this subject, she gave details as to the usual Monday night bingo schedule, as well as to the time she usually came home from her mother's on Saturdays. [ 80 ] Therefore, it was she, not the appellant, who, being the first to return, would find herself alone with her sister. Mrs. L even asserted that, often, the complainant left the premises before the appellant even got home from work. [ 81 ] This version suggests that the assaults in the home when she was not there were very rare. Furthermore, in those cases, the appellant would have acted in a risky context where he could easily have been found out, Mrs.

L being likely to arrive from one moment to the next. [ 82 ] More important still, Mrs. L categorically affirmed that she never went to bed before the complainant had left for her home after babysitting at their homes on A or C streets. We know and the complainant has confirmed that, as a rule, the complainant went home on foot. [ 83 ] This last assertion eliminates the endlessly repeated assault scenarios while Mrs. L was on the premises. [ 84 ] In passing, the sequence of the sexual abuse as described by the complainant is unlikely if we accept the testimony of Mrs.

L. [ 85 ] The layout of the premises on A street would have prevented any real intimacy on the living room sofa. Indeed, the door of the parents' room was always open and it gave directly onto the living room. This way, Mrs. L, who sleeps lightly, could hear the children if they needed anything. In the same way, she could easily have become aware of sexual activity occurring only a few feet from where she was. [ 86 ] Moreover, in an awkward state of undress that would have hindered her movement, the complainant would have had to go unseen from the sofa to the bathroom to wash up and put her clothes back on.

At trial, Mrs. L drew a sketch of the premises. I observe that, in the apartments on A street and C street, the complainant would have had to go past Mrs. L's bedroom and that of the children, in her state of undress. It is unrealistic to believe that she could have done so many times without ever having been bothered, as she asserted. [ 87 ] In short, we must conclude from the facts related by Mrs. L that the version according to which the complainant suffered repeated assaults over approximately three years in the apartments on A and C streets is unlikely.

Even if we wanted to attribute a measure of the imprecision in the victim's version of the facts to the passage of time and to her relatively young age, the same conclusion would be necessary. [11] [ 88 ] I note that, even if we were to conclude that she merely exaggerated the actual number, we could then accept that the complainant was simply imprecise in her testimony.

But if, as my colleague Thibault J.A seems to accept, we must find that the assaults occurred very sporadically, it follows, in my view, that there is a material issue with regard to the reliability of the complainant's testimony. [ 89 ] With regard to the assaults that allegedly occurred on D street, Mrs. L's testimony again contradicts the complainant's version. [ 90 ] It appears from that testimony that the complainant babysat once a month or every six weeks. Unlike before, she babysat only when the appellant and Mrs. L both went out on Saturday nights.

If it might naturally be inferred that the spouses returned home together, it follows that the appellant did not have the opportunity to be alone in the home with the victim. [ 91 ] If we accept Mrs. L's version, the only remaining assault scenario is the one whereby Mrs. L was on the premises while the abuse occurred.

But she asserts without any trace of doubt that, on those occasions when her husband drove the complainant to her home on B street, she never went to bed before the complainant had left. [ 92 ] According to this version of the facts, it follows that the opportunities for assault in the D street apartment were limited to those times when the complainant stayed overnight and Mrs. L retired to her bedroom before the appellant did. These are her comments on the matter, as witness for the defence: [translation] Q And you stated that sometimes X would babysit on Saturdays? Correct? A Yes.

When we would go out on a date. Q Um...those times - they were...Saturday nights, weren't they? A. Yes. Saturday nights. Q And how often did this occur? A Once a month, every six weeks. It was rather rare at the time. Q And how would it unfold? How did X get to your place? A My husband would go to get her.

Q He would bring her to your place? A Yes. Q And what would happen when you came back from your night out? A If we got back early enough, he would drive her home. But if it was late—since he had to get up early for work the next day—he would go to bed instead. And she would leave with me the next day, around lunchtime. My sister M. would come to pick us up—myself and the kids—and X would get in with us. We would go to our mother's for lunch. Q On...on which street? A. On B street. Q Then on Sundays, you would go to your mother's for lunch? A Yes. Q OK.

And you stated that on those occasions, she would sleep in your home? A Yes. Those times, she slept in your home. Q OK. And um... You stated that Mr. P. ...he had to get up early the next day. A Yes. Q Because his work

schedule at the ...what was it? A It was five (5:00 a.m.) until four (4:00 p.m.), sometimes five o'clock (5:00 p.m.). Q Five in the morning? A Five o'clock in the morning (5:00 a.m.) to four o'clock in the afternoon (4:00 p.m.). ... Q And usually, how did that work? A Um… Q At night? Let's say that X was spending the night? A Usually, I would stay up because I've always gone to bed late, so I ... I would watch a movie sometimes and X would lie on the sofa and we would watch it together, then I would go to bed. Q Where was Mr. P. those times? A He was in bed. [ 93 ] Mrs.

L does not absolutely dismiss the possibility that the appellant may have stayed in the living room with the complainant but it clearly appears from her testimony that the theory is unlikely. [ 94 ] In short, this testimony is inconsistent with the scenario of repeated assault in the home on D street. [ 95 ] This witness finally addressed the possibility of assault when the appellant drove the complainant home at night. [ 96 ] On A and C streets, the appellant only drove the complainant home if the weather made the short trip on foot difficult.

This did not happen often and the witness cannot remember if the appellant took more than a few minutes to complete the return trip. [ 97 ] On D street, however, the distance made it necessary on the nights when the complainant did not stay the night. Again, Mrs. L never noticed any abnormal delays. [ 98 ] To sum it all up, insofar as Mrs. L's testimony should have been accepted, I find that the third question of the test established in R. v.

W. (D.) , [12] which invites the jurors or the trier of fact to consider whether the evidence as a whole has raised a reasonable doubt as to the guilt of the accused, should have been answered in the affirmative. The version of the facts related by this witness is fundamentally inconsistent with the Crown's theory. [ 99 ] In the case at hand, however, the judge rejected this testimony. Certainly, he was entitled to do so, and I would not interfere with his assessment of the evidence if even one of his reasons for rejecting the testimony had any merit.

But, with the greatest respect, I find that the reasons in the judgment do not withstand scrutiny and that is why there is, in my opinion, cause to intervene. The reasons for rejecting Mrs. L's testimony [ 100 ] The judge set forth three reasons that, in his view, justified rejecting Mrs. L's version.

I will analyze each of them in turn. [ 101 ] The first of these grounds is linked to the overly specific nature of the witness's memory: [translation] First, it is unlikely that thirty years later she remembers so many specific details on the comings and goings, the times at which the accused and herself came home, or how long he took to drive the complainant home. In her view, nothing specific occurred and she had no reason to fix these insignificant details of everyday life in her memory.

In fact, throughout her testimony, she made liberal use of the following expressions: generally, almost always, most of the time, maybe, don't remember, and about.

[ 102 ] Generally speaking, I cannot see how Mrs. L's memories of her biweekly outings could be characterized as unlikely. We are speaking of a woman living an orderly life who, at the time, was in charge of raising her children and of the domestic work. According to his testimony, the appellant, her husband, worked long hours, from seventy to eighty hours a week. [ 103 ] But there is more. The judge forgot or rejected the simple fact that the complainant herself corroborated most of the details given by Mrs. L.

Here, for example, is an excerpt of the complainant's cross-examination dealing specifically with her sister's biweekly outings: [translation] Q. And when you babysat, whether on A, C, or D streets, is it accurate to say that it was because your sister G would go either to bingo or to your mother's house? Because she would go visit your mother to read the newspaper, is that possible? A. Yes. Q. Because your mother was vision impaired, she had vision problems? A. My mother was visually impaired. Q. O.K.

And when she went there on Saturdays, and then on Mondays, it was for one of those activities, either bingo or to see your mother? A. Exactly. [ 104 ] Clearly, on the subject of Mrs. L's outings on Mondays and Saturdays, the versions are consistent. Moreover, the complainant recalled that her visually-impaired mother went to bed early: [translation] Q. And your mother... A. Yes. Q. ...what's her name again? A. F ... Q. F ... Did she go to bed early? A. My mother certainly wasn't a night owl, you know. She liked to go to bed early and listen to the radio. Q.

If I were to suggest that she went to bed around nine thirty (9:30 p.m.), or ten o'clock (10:00 p.m.), would that be accurate? A. Yes, it's possible. Q. She usually went to bed around then? A. It's possible, yes. [ 105 ] This additional detail also resembles Mrs. L's version, which asserted that she would read to her mother and come home early for that very reason: [translation] Q And apart from that, what other activity did you have for... A Um, on Saturday nights when my husband worked at the ..., she would come and babysit for me and I would go around to my parents' place.

Q What would you do at your parents' place? Q On Saturday nights, at the time, we might play cards and I would read to my mother some, and other things like that. Q Why did you read to your mother? A Because she was blind. Q OK. And um, you would return to your home at what time, approximately? A Um, around nine thirty (9:30 p.m.) or ten o'clock (10:00 p.m.), because my mother went to bed early. [ 106 ] The complainant also corroborated Mrs.

L's version as to the reasons the appellant was also away from the home on Monday and Saturday nights, which led to her babysitting on occasion as there was no reason to call a babysitter if either parent remained in the home: [translation] THE COURT: Or bingo, huh, you were saying? A. Yes. Q. That was on Mondays? A. Yes. Mtre YVES SAVARD For the respondent Q. Mondays or Saturdays. Saturdays that was ...? A. One day or the other, depending.

Q. OK. And at those times, Mr. P. was working? Because he worked as an usher at the ...? A. Yes. Q. That’s right. A. Yes, he was an usher, yes, at the ... . Q. He also worked as a referee, you know, for C city, at the ..., or (inaudible) D city. He worked as a referee in the evening? A. It's possible, you know, I don't remember. Q. When you babysat on those evenings, usually, almost always, it was because either G. went to see your mother, went to bingo, or because Mr. P. was working on those nights? A.

Yes. [ 107 ] Therefore, not only is there no support in the evidence for the judge's assertion as to the alleged unlikeliness of Mrs. L's memories, but Mrs.

L's version of the facts is corroborated on several aspects by the complainant’s version. [ 108 ] Right after his erroneous characterization of the testimony as unlikely, the judge added a negative comment on the witness's use of general terms: [translation] In fact, throughout her testimony, she made liberal use of the following expressions: generally, almost always, most of the time, maybe, don't remember, and about. [ 109 ] This criticism seems paradoxical in that it contradicts the judge's assertion that the witness's memories were too specific. [ 110 ] For my part, I can find no real basis for this determination by the judge.

The use of the terms he criticizes obviously only indicated the witness's wish not to give her answers too much of an air of absolute certainty. Such restraint was necessary in light of the generality of the questions asked, the length of the time periods covered by the questions, and the relative distance in the past of these same periods. In other words, apart from specific explanations, and the judgment does not point any out, this way of answering should normally have reinforced the testimony's credibility instead of weakening it. [ 111 ] Thus, I find that overall the first reason for rejecting Mrs.

L's testimony is without merit. [ 112 ] As his second reason, the judge maintained that there is no opposition between the testimony of Mrs. L and that of the complainant: [translation] Second: in light of the overall evidence, her testimony does not interfere with the complainant's since moments still remain where she was alone with the accused. Let us not forget that the complainant stated that it did not happen every time she babysat. [ 113 ] In my view, this is the main error that affects the judgment under appeal. I previously addressed this issue and gave the reasons why Mrs.

L's testimony runs directly counter to the Crown's theory of the cause of action. I will only add the following comments. [ 114 ] It is true that Mrs. L's testimony leaves moments where the complainant may have been left alone with the appellant. Also, if it were a question of assessing a charge based on a very limited number of assaults, this testimony presented by the defence would undoubtedly have had less of an effect.

Its devastating nature stems from the aspects of the Crown's theory whereby the appellant perpetrated hundreds of assaults in well-defined circumstances and places, and a large proportion occurred while the witness was in the home. [ 115 ] In support of his conclusion, the judge added the following comment: [translation] Let us not forget that the complainant stated that it did not happen every time she babysat. [ 116 ] With due respect, this comment simplifies the complainant's version to the point of betraying its impact.

Of course, the complainant indicated that the appellant would forgo assaulting her when, for example, she was menstruating. According to the complainant's theory, these exceptions did not modify the basic scope of her testimony: Generally, in the apartments on A and C streets, the abuse occurred about twice a week. [ 117 ] Thus, I accept that the second reason given by the judge to reject the testimony of Mrs. L is not supported by the evidence. [ 118 ] The third and final reason given by the judge is based on the relationship between Mrs. L and the appellant: [translation] Third: We note, also, that Mrs.

L chose to believe her husband, to whom she is related, a factor that must be taken into account to assess the credibility of the witness, without making it, by itself, a determinative reason to deny any credibility. [ 119 ] The explanation is short. While the accused is Mrs. L's husband, the complainant is her younger sister, with whom she had a very close relationship. The complainant's accusations shook Mrs. L to the core. Far from blindly accepting the appellant's denials, Mrs. L reached out for help and went to therapy, as did the appellant, in fact.

In truth, she did not know who of her sister or her husband she should believe. Mrs. L made this point toward the end of her cross-examination by the Crown:

[translation] A ... In any case, had he been in front of the person who... Q OK. A That's it. Q Now... You talked about it with him, he said nothing happened and you felt that you should see a psychologist? A Yes, because I was in a state of turmoil. In any case, when you find out that your husband was suspected of abusing, um... Q It caused you to be in turmoil. A It caused me to be in a state of turmoil, yes. Q OK. Did you see the psychologist before or after your meeting at the restaurant? A Before. Q Before. Did you see this therapist on a regular basis? A Yes. Q How—how often, approximately, at the time?

A Um. About every two (2) weeks. Q And during that meeting in the restaurant, earlier you said that she told you some things. Specifically about some acts. A Yes. Q And that you said... —and this may not be your exact word, OK—but that...you were surprised or astounded or...—I don’t have my exact notes on the subject... You were in a state of turmoil. And so you didn't ask too many questions. That's what you said. A Yes. Q OK. And then, at the time, what caused you to be in turmoil?

A All the things she was telling me, that she was continuing to tell me: [translation] "I know that you don't believe me but these things happened." Q OK. So, I'm going to assume that this shook you up and that you didn't know who to believe anymore? Is that a fair assumption? A Yes. [Emphasis added.] [ 120 ] The inference drawn by the judge to the effect that Mrs. L believed the appellant because of their relationship is not supported by the witness's entire version.

When considered as a whole, this version highlights that it was only after a prolonged bout of gut- wrenching indecision that she finally believed the appellant's denials rather than her sister's accusations. [ 121 ] Considered in context, the conclusions drawn by Mrs. L favoured the denial theory. It was certainly open to the judge to consider them to be neutral. Nevertheless, I believe that the weighing exercise that the witness performed could not reasonably serve to weaken her credibility. [ 122 ] From this analysis, I find that the judge committed a determinative error by rejecting Mrs. L’s testimony.

This error had a direct impact on the disposition since the content of the testimony in question, if not rejected, creates a serious doubt as to the appellant's guilt. In my opinion, it is enough to justify an acquittal. [ 123 ] Because of my most recent finding, it is unnecessary to continue my consideration of the file. I believe, however, that it would be useful to add a few comments regarding the sufficiency of the evidence adduced by the Crown. Indeed, in my view and contrary to what the trial judge concluded, it could not be deemed to be determinative.

The sufficiency of the Crown evidence as opposed to the defence's theory [ 124 ] First, I will address the issue of the indirect admission on which the judge's finding is partly based. This indirect admission stems from the interrogation that the appellant underwent at the hands of Officer Bonin immediately after being arrested in May of 2006. It was held at the police station in Quebec City, which has a room dedicated to video recording. [ 125 ] Officer Bonin and her colleague, Officer Bernard, chose not to use this room.

According to Officer Bernard, Officer Bonin was not qualified to carry out an interrogation on video, and this is probably why they proceeded solely with note taking. [ 126 ] Even if this explanation is true, it is not convincing. It appears from the cross-examination of Officer Bernard that there was no reason to proceed immediately with the arrest and interrogation of the appellant. In other words, it would have been possible to ensure that the requirements for using the equipment available on site were met.

Thus, the judge was deprived of a very precious tool for interpreting and assessing. [ 127 ] Both police officers testified using the brief notes taken in telegraphic style by Officer Bernard. Both affirm that the appellant never denied the existence of the sexual assaults of which he was accused by the complainant. Had he done so, they said, it would have been noted.

[ 128 ] Moreover, at the end of the interrogation, when Officer Bonin told him that it was important for a victim to hear her aggressor acknowledge the facts, the appellant allegedly stated that he [translation] "never said that [his sister-in-law] was a liar." This constitutes the indirect admission identified by the judge. [ 129 ] In what precise context did the appellant utter these words? What was the specific question asked? In what tone of voice was it expressed? Were the words accompanied by body language? Basically, did they truly have the meaning ascribed to them by the judge?

These are all elements that remain beyond our reach, but which a video recording would have allowed us to better assess. [ 130 ] Moreover, a police interrogation that lasted forty minutes and which was then reduced to a few lines written by police officers is very thin evidence indeed for taking a single sentence (I never said that X was a liar) and using it as the basis for a finding affecting the appellant's credibility. [ 131 ] Additionally, to infer from these words that the appellant indirectly admitted the existence of the offences alleged against him and to base a conviction upon them seems bold to me.

It is all the more so when the handwritten notes taken by Officer Bernard reveal elements that are hardly compatible with an admission of the facts with which the appellant was accused. On the contrary, we could just as easily see in those notes the distress and incomprehension of one who deems himself to be unfairly accused. I transcribe the complete handwritten notes of Officer Bernard covering the crucial portion of this interrogation, that is, between 8:59 p.m. and 9:26 p.m. [translation] 8:59 p.m. X, the sister-in-law, always got along, babysat kids.

I don't understand it—she was always at our place me, not a violent person— I don't remember acts she can say anything when she mailed that, I fell into a depression and was treated by a psychologist, I talked to him, S. P. 9:04 p.m. ... (card) X has babysat my kids before, memory issues since she came up with that that

part is lost Health? thyroid gland—not Alzheimer not very violent verbally 9:10 p.m. mother: an angel... deceased 2001 difficult child, → drug arrest X? I can't understand. She was in our home every weekend, I would drive her home—go get her I went to get help—psych. 9:23 p.m. X sent a letter—that I had assaulted her S.B. scenario similar case before the court → the acknowledgement I never said that X was a liar.

I won't say anything else - 9:26 p.m. we go out—leave him alone preparation release and conditions [Emphasis added.] [ 132 ] It is useful to read these notes while keeping in mind the fact that at the time of the interrogation, the appellant had no details regarding the specific acts the complainant had alleged against him. They might have been ambiguous acts or serious assaults, such as those the complainant later revealed. [ 133 ] In R. v.

Oickle , [13] Iacobucci J. said the following regarding the use of video recordings during interrogations conducted by police officers: 46 Before turning to how the confessions rule responds to these dangers, I would like to comment briefly on the growing practice of recording police interrogations, preferably by videotape. As pointed out by J. J. Furedy and J.

Liss in "Countering Confessions Induced by the Polygraph: Of Confessionals and Psychological Rubber Hoses" (1986), 29 CriXQ. 91, at p. 104, even if "notes were accurate concerning the content of what was said, the notes cannot reflect the tone of what was said and any body language that may have been employed" (emphasis in original). White, supra, at pp. 153-54, similarly offers four reasons why videotaping is important: First, it provides a means by which courts can monitor interrogation practises and thereby enforce the other safeguards.

Second, it deters the police from employing interrogation methods likely to lead to untrustworthy confessions. Third, it enables courts to make more informed judgments about whether interrogation practises were likely to lead to an untrustworthy confession. Finally, mandating this safeguard accords with sound public policy because the safeguard will have additional salutary effects besides reducing untrustworthy confessions, including more net benefits for law enforcement.

This is not to suggest that non-recorded interrogations are inherently suspect; it is simply to make the obvious point that when a recording is made, it can greatly assist the trier of fact in assessing the confession. [ 134 ] At trial, the appellant maintained that he had denied the existence of the assaults. He also asserted that he had uttered the words

[translation] "I never said that my sister-in-law was a liar" in a different context from the one described by the police officers. To finishwith the issue of the absence of a video recording of the interrogation during which the indirect admission was allegedly obtained, itappears to me to be useful to reproduce a quote taken from the general treatise on criminal evidence and procedure by Béliveau andVauclair,[14] which reviewed the state of case law on the issue: [translation] Authorities increasingly record interviews with detainees.

Most of the case law addresses the failure to resort to this technology as itconcerns both the issue of admissibility and the issue of the intrinsic value of the confession. It must be said that the Supreme Courtencourages the recording of confessions as this yields useful evidence on both of those fronts. It clearly states, however, that this does notmean that non-recorded interrogations are inherently suspect.

That said, the Court of Appeal for Ontario greatly nuanced this assertion byindicating that where an accused is detained and recording equipment is available, the context makes the interrogation suspect [R. v.Moore-McFarlane (2002), (ON CA), 160 C.C.C.(3d) 493 at paras 64-65 (C.A.O.)]. In such a case, the absence of arecording may lead the judge to find that the confession was not voluntary [R. v.

Ahmed (2003), (ON CA), 178C.C.C. (3d) 23 at para. 19 (C.A.O.)] or that it was not faithfully reported, or even that it was simply made up by the police officers [R. v.Wilson (2006), (ON CA), 210 C.C.C. (3d) 23 at paras 21-24 (C.A.O.)]. ... [135] Overall, I find that the evidence of the indirect admission was very weak to say the least and that it could not lead to theconviction on its own. Was it sufficient when combined with the rest of the evidence adduced by the Crown?

I do not believe so. [136] Viewed by itself, the situation described by the prosecution is rather strange: More or less a hundred assaults per year, over threeyears, most occurring in the home, often when the alleged aggressor's wife was only a few feet away from where the offences were beingcommitted.

It is certainly shocking. [137] But astonishment only increases when the victim asserts that these incidents were never interrupted by the other persons whowere present. [138] I agree that such a scenario is possible in theory, but it presupposes such a combination of circumstances that the probability thatit actually happened remains tenuous. [139] The judge nevertheless believed it and insisted on giving thirteen reasons in support of this conclusion. It appears, however, thatover half of them stem from the judge's impressions upon hearing and seeing the complainant's testimony.

Here is a representativeexcerpt: [translation] First, throughout her testimony she appeared to be honest and sincere; she was overcome by her emotions, which were authentic andunfeigned, and which were connected to the situation and to her recital. For example, whenever she discussed the sexual abuse, heremotions, or the aftermath, she became sad. She cried often, and these uncontrolled emotions forced her to interrupt her account. [140] Certainly, the complainant's behaviour at trial and the apparent sincerity of her testimony could be taken into consideration.

Ifind, however, that a disproportionate significance was accorded to this factor, which was an error. A trial judge must refrain fromblindly trusting in his capacity to discern truth from falsehood based solely on his impressions. [141] During a conference on criminal law held in Vancouver in March of 1999, my colleague Doyon J.C.Q., as he was then, made thefollowing comments:[15] [translation] Can the court below reasonably rely, whether solely or mainly, on the behaviour of witnesses to assess their credibility and thetestimony?

Lord Devlin clearly believes that an analysis of the behaviour is insufficient, an opinion shared by many. The great virtue of the English trial is said to be the opportunity it gives to the judge to tell from the demeanour of the witness whether ornot he is telling the truth. I think that this is overrated. I would adopt in their entirety the words of Mr. Justice MacKenna: I question whether the respect given to our findings of fact based on the demeanour of the witness is always deserved.

I doubt my ownability and sometimes that of other judges to discern from a witness's demeanour, or the tone of voice whether he is telling the truth. Hespeaks hesitantly. Is that the mark of a cautious man, whose statements are for that reason to be respected or is he taking time tofabricate? Is the emphatic witness putting on

an act to deceive me, or is he speaking from the fullness of his heart, knowing that he isright? Is he likely to be more truthful if he looks me straight in the face than if he casts his eyes on the ground perhaps from shyness or anatural timidity? For my

part I rely on theses considerations as little as I can help. Not only is behaviour insufficient to assess credibility, but also, it is not the most significant factor since reliability is at the heart of thematter.

Therefore, we must avoid the trap of putting too much emphasis on a witness's credibility to the detriment of the reliability of his or hertestimony. [142] In my view, these comments remain relevant today and can be applied directly to the present case. [143] Clearly, the judge's impressions during the complainant's testimony played a crucial and determinative role in his assessment ofthe facts, particularly those presented by the defence.

They led him, no doubt in spite of himself, to determine the reliability of thecomplainant's version subjectively and therefore to discredit the appellant's testimony and that of his witnesses. That is precisely thepitfall that an appropriate use of the steps set out in R. v. W. (D.) can help avoid.[16]

[ 144 ] I should add that the trap in question is as insidious as it is dangerous. It lies in wait even for judges who, like the one who heard the case, possess vast legal knowledge and benefit from significant experience. [ 145 ] Obviously, the judge was aware of the contradictions and the discrepancies in the complainant's testimony. He wrote: [translation] Eleventh: the complainant's cross-examination revealed errors, contradictions, inconsistencies and memory gaps concerning a number of secondary details.

Time, place, length, first telling, frequency, disclosure, context, personal situation, her own or another's, she did not hesitate to acknowledge it. [ 146 ] In his view, however, these are issues of secondary significance: [translation] All these flaws concerning secondary factors do not affect her overall credibility in the context of the evidence taken as a whole. In many cases, the events in question took place thirty-four (34) years before her testimony when she was only thirteen (13) years old, and in a traumatizing context.

The Supreme Court teachings that I previously quoted are entirely applicable here. [ 147 ] The inconsistencies, contradictions, and unlikelihoods, however, are numerous, sometimes significant, and some do not concern secondary factors.

The judge trivialized them all because of the strong impression left on him by the complainant's testimony, whose sincerity he refers to on several occasions in his judgment. [ 148 ] On this subject, I have already referred to the complainant's significant backtracking concerning the initial assaults, those that, according to the original version, occurred when the last two children were being brought into the world. [ 149 ] I do not intend to perform an exhaustive review of the conflicting factors that cast doubt on the reliability of the complainant's version. As I mentioned, there are several.

I will point one out, however, to which the judge did not attribute any significance but that, in my opinion, should have raised a red flag and discouraged him from blindly putting his trust in his assessment of the complainant's behaviour in the witness box. [ 150 ] In both her letters and her testimony at trial, the complainant made several mentions of the attempted assault that was allegedly perpetrated by the appellant in February of 2004 when he drove her home after dinner with the L-P couple. This attempt was the trigger that finally led her to denounce him.

She said as much in the letter she sent to her sister M. on September 27, asserting that she was considering filing a complaint with the Direction de l'indemnisation des victimes d'actes criminels. [17] A few days later, however, in October, she went to a party given for the birthday of her goddaughter, B. [ 151 ] A, her niece, testified at trial regarding the party. She revealed a fact that is very disturbing when placed in the chronological context I have just referred to: [translation] Mtre YVES SAVARD For the defence: And toward late afternoon, you, what happened with X? A Well, I was leaving to go home.

Then... Q Was the party over? A The party was over. I asked her if she wanted me to drive her home because I had gone to pick her up. Q Who is that? A X And she told me: [translation] "No, your dad will drive me home." So I left and my dad drove her home later. Q. In October of two thousand and four (2004)? A.

In October of two thousand and four (2004). [ 152 ] In other words, while she asserted in writing that she was the victim of attempted assault a few months earlier, and she declared in late September that she was considering denouncing he whom she identified as her abuser, in October, she refused her niece's offer to drive her home after the party. Instead, she chose to call on her alleged abuser to drive her home in exactly the same context as the one that had yielded the alleged attempted assault a mere eight months earlier. [ 153 ] Cross-examined on the issue, she had the following to say: [translation] Q.

Do you remember that in October of two thousand and four (2004), you went to G's home, with her family, to celebrate B? A. Yes. Q. Do you remember that when the time came to leave the party, your niece A offered to drive you home? A. ... I do not recall. Q. OK. That you would have said: [translation] "No, don't worry about it, R. will drive me home"? A. Maybe...I don't recall.

[ 154 ] It should be noted that those facts are not thirty years old. They took place relatively contemporaneously to her testimony and when the complainant was a full adult. [ 155 ] In my opinion, in the context of the evidence as a whole, the judge could not set aside this factor affecting the reliability of the complainant's version based on the brief comments he expressed on the subject of A's testimony: [translation] 3) A's testimony: Her testimony has no impact on the verdict as it addresses only secondary facts and because the complainant chose not to let anything show prior to her initial revelations.

Instead, it is a testimony that confirms the complainant and the other witnesses regarding the attitude she had decided to adopt until she disclosed. [ 156 ] Moreover and with respect, the second sentence of this excerpt is erroneous on two fronts. First, no witness confirmed that the complainant had decided or chosen not to let anything show until the day of disclosure. Second, the complainant had already disclosed her accusations when the events related by A occurred.

Among other things, she had already denounced her brother-in-law to her sister M., in writing no less. [ 157 ] Aside from this troubling fact, I reiterate that the undisputed evidence reveals that the complainant fell into a deep depression upon her mother's death in 2002, an event that was extraneous to the charges brought against the appellant. The complainant was placed on medication and her letters from 2004 show that she was still sick, troubled, and medicated at the time of the denunciation. Thus, in the letter she wrote in July of 2004 to her sister, Mrs.

L, she asserted: [translation] She [her doctor] makes me MEET with a social worker, why I decide to ISOLATE myself alone and change personality, and after the death of our mother. I am going to meet somebody in the next fifteen days, to talk. I am not well at all, and I am completely lost and I need to find myself and be alone, these days. I ask myself questions why I act that way, for the time being I don't have any answers. [Reproduced in full] [ 158 ] In her testimony at trial, concerning the letter sent to her sister M. in September of 2004, she declared: [translation] A. All right.

All I can say about that is that I don't recall because at the time I was living...I was alone. I didn't know anymore. I was depressed... I couldn't always remember the date or things I had written, but I knew that I had written a letter. There are things that I have forgotten. [ 159 ] The evidence reveals that she started having nightmares that were astonishingly identical to the description she gave in her testimony of the sexual assaults at the centre of the charges: [translation] Q. So Ms.

L ..., so we were saying, that since two thousand and four (2004) you were having nightmares and you said that these nightmares were about the abuse suffered at the hands of Mr. P..., is that right? A. Yes. Q. And you said that the content of your nightmares concerned the fact, among other things, that he put his mouth on your breasts, his tongue and his fingers in your vagina? A. Yes. Q. Is that right? A. Yes. Q. It also concerns those instances of abuse? A. Yes. Q. And these nightmares, how often have you had them since two thousand and four (2004)? Do you have them often or...? A.

Well I...it was while I was in therapy... Each time we discussed what had happened, I would go home, OK, I would go to sleep at night and then... My dreams would start like that. [ 160 ] The judge completely ignored this additional element. I note on this matter that he analyzed the evidence only from the viewpoint of the complainant's credibility: [translation] Seventh: the evidence shows that the complainant had no reason to make up a story of sexual allegations against the accused since both parties expressed that their relationship was warm and harmonious.

All the evidence tied to her IVAC claim also shows that it stems from sexual abuse by the accused, not from a made up story.

[161] And yet, the defence was not resting its argument on the complainant's lack of credibility, but rather, on her version's lack ofreliability. The appellant had declared this to the police officers in May of 2006, and his counsel argued it specifically at trial. Here is anexcerpt from his arguments in the court below: [translation] Our view is that Ms. X, she is...well, perturbed, she has personal issues. We do not suggest that she acted maliciously, out of jealousy, orvengeance, but instead that she has personal issues that made her start to believe this story.

When she tells it, she is not a woman...sheappears to believe what she is saying, but in our opinion it's unlikely, it's not true. It's confabulation. [162] In my opinion, the judge committed an error of law in confusing sincerity and reliability.[18] Furthermore, he failed to considerthe evidence that might have been relevant to the theory of confabulation submitted by the defence, including those I have just mentionedspecifically. I take as my own the comments of my colleague Doyon J.A. in Wittmann v.

R.:[19] [translation] While the role of an appellate court is not to carry out its own assessment of the evidence, “what an appellant may demand, however,with regard to evidence filed at the trial and particularly evidence that may be favourable to the appellant, is that the trial judge take itinto consideration. The trial judge’s failure to do so justifies the intervention of a court of appeal”: R. v. Polo, (QCCA), [1994] A.Q. no 249, aff'd by the Supreme Court of Canada, (SCC), [1995] 4 S.C.R. 44; see also R. v.

Harper, (SCC), [1982] 1 S.C.R. 2. [163] In my opinion, this theory of confabulation is not frivolous in the overall context of the evidence. It stems from the complainant'stestimony and her writings. Furthermore, the general factual context presented in support of the charge seems unlikely in practical terms.The defence did not have to prove confabulation.

It only had to ask the judge to consider the actual reliability of the theory submitted bythe Crown. [164] If the evidence had been considered from this angle, it would not have been frivolous to think that this theory could have createdin the trier of fact a reasonable doubt as to the appellant's guilt. [165] Such a finding, taken alone, might justify an order for a new trial.

Such a disposition is not indicated in these circumstances,however, because, in my view and for the reasons given previously, the overall evidence justifies an acquittal. [166] Consequently, I would allow the appeal and substitute an acquittal for the conviction rendered at trial. FRANÇOIS PELLETIER, J.A. REASONS OF THIBAULT J.A. [167] The appellant was convicted of indecent assault on a female between September of 1974 and June of 1979, an offence set out insection 149 Cr. C. [168] He appeals.

In support of his appeal, he argues that the trial judge committed two errors, which led to an unreasonable verdict.First, the trial judge erroneously rejected his defence by disregarding the testimony of his wife and that of his daughter based onimproper reasons. Second, the trial judge was wrong to accept the testimony of the complainant, which was rife with contradictions,inaccuracies, and even unlikelihoods. [169] The complainant is the appellant's sister-in-law.

She declared that between 1974 and 1979, the appellant committed certain actsthat were sexual in nature on her: touching of the breasts, digital penetration, masturbation, fellatio, ejaculation, and so on. Thecomplainant was thirteen years old when the acts began, the appellant was twenty-seven. [170] The incidents allegedly occurred on the living room sofa in the appellant's home or in the car when the appellant drove thecomplainant home after an evening of babysitting.

The complainant did indeed take care of her sister and the appellant's children onMonday evenings when her sister would go out to play bingo or on Saturday evenings when she would visit her mother and her brother-in-law would go to his second job.

She babysat regularly, once or twice per week during the relevant period, but less frequently towardthe end. [171] The complainant recounted that the incidents would occur in one of four circumstances: when the appellant came home fromwork before his wife did, when the couple would go out together and come back late and she would sleep in the living room instead ofgetting a lift home, when the couple's second and third children were born, and, finally, when the appellant would drive her home afteran evening of babysitting. [172] The complainant explained that these assaults terrified her, especially because her sister was sometimes present in the apartmentand when she wasn't there she was never very far and could have shown up at any time.

[ 173 ] In 2002, the complainant became depressed following the death of her mother. She was followed by her family doctor, Dr. Leclerc, who gave her a prescription for Effexor. As her state was not improving despite the passage of time and the medication, her doctor asked her if something was bothering her. It is in this context that around August of 2004, the complainant disclosed to her doctor that she had been a victim of assault some thirty years earlier. [ 174 ] Dr. Leclerc advised the complainant to apply to the IVAC [20] for help and especially to see a psychologist.

The complainant's request was accepted and she was able to benefit from the professional services of a psychologist from April of 2005 to August of 2006. This period was particularly difficult for the complainant, who had nightmares and thought of killing herself. In addition to disclosing these facts to her doctor, the complainant also told her family members. In fact, a number of the letters that she wrote to them were filed into the record at trial.

These family members did not believe her and, at the time of the trial, she no longer had any contact with them. [ 175 ] On October 18, 2005, while in therapy, the complainant went to the police station and filed a complaint against the appellant. This was a relief to her. She stated, among other things: [ translation ] "I am going to take back what I lost". * * * [ 176 ] At trial, the prosecution called three witnesses: the complainant and the two police officers who took the appellant's statement on May 30, 2006, when he was interrogated at the police station following his arrest.

The appellant's statements and the fact that he did not deny the facts at the time made a strong impression on the trial judge. I shall return to this subject. [ 177 ] The defence, for its part, called three witnesses, the appellant, his wife, and their daughter. The appellant's wife explained that she was generally present when her husband came home at night after working and that she always went to bed last. The appellant's daughter recounted that when the complainant agreed to be her child’s godmother, she insisted that the appellant be the godfather.

She also testified that the complainant had preferred for the appellant to drive her home after a party when she had offered to do so. I shall return to this subject also. * * * [ 178 ] After reading the testimony and analyzing the trial judgment, I find that the judge did not commit any palpable and overriding error in his assessment of the evidence and that the verdict handed down was not unreasonable. Even though the judgment was rendered orally and, for this reason, it did not report the evidence in minute detail, it was very articulate and complete [21] in both the part that summarizes the evidence and the

part concerning the application of the principles found in R. v. W.(D.) . [22] * * * A - The appellant's testimony [ 179 ] At the first stage of his analysis, the trial judge declared that he did not believe the appellant. He expressed clearly the four reasons for this first finding, which is not questioned in appeal: [translation] First : During his testimony in chief, the accused denied the charges with short sentences, delivered without emotion, curtly, merely repeating the words: never or no, never.

Under cross-examination, however, being pushed to explain in greater detail, he lost this apparent confidence and on numerous occasions he became ill at ease, hesitant, flustered, and a number of his explanations were shaky, such as the explanation he gave concerning the indirect admission made to the investigators and the so-called memory losses in relation to the acts.

Second : the accused's testimony concerning the memory losses, the indirect admission, and the contents of the statements is contradicted by the testimony of the two (2) investigators and by his oral statements, freely and voluntarily given, written and certified as authentic by both investigators.

Third : the complainant's revelations, in two thousand and four (2004), were very serious and had significant consequences on the lives of the accused, his wife, and their children; specifically, they were rejected by family members, both spouses experienced serious health problems, and, primarily, the criminal charges themselves. Yet, the parties – the complainant, the accused, and his family – had up till then had a wonderful relationship, according to the very expression used by the accused.

How is it then that the accused did not seek to meet with the complainant to discuss the situation with her and especially to confront her following these allegations, which he claims to be false. Why, also, did he agree to leave a family gathering because of the coldness and the looks of the others without explaining himself or at least proclaiming his innocence or denying the facts to restore his position and that of his family, as well as his reputation, within the family circle.

In the same vein, when he was interrogated by the two (2) investigators, when he agreed to talk, the accused renounced his right to silence and during the forty (40) minutes the meeting lasted he never denied the complainant's allegations. On the contrary, he said, and I quote: I never said that X was a liar. End of quote. All these circumstances, when observed in the context of the evidence as a whole, affect the accused's credibility.

Fourth : The assertions made by the accused to the two (2) investigators to the effect that he did not recall the acts and that this part was lost when referring to the allegations of sexual abuse are unlikely in light of the context, the overall evidence, and the fact that he otherwise recalled secondary elements such as his various addresses, his jobs, his work schedules, and the frequent presence of the

complainant in his home. All this also affects his credibility, all the more so because his wife and the accused, throughout their testimony, confirm that he never had memory issues. [Emphasis added.] [ 180 ] The appellant does not dispute this aspect of the file.

Without further elaborating on the appellant's lack of credibility, since the issue is not in question, one must recognize that (1) the indirect admissions he made to the investigators, (2) his convenient memory loss, and (3) his behaviour at family functions after the denunciation constitute facts that would certainly discredit his version. [ 181 ] My colleague Pelletier J.A. offers a lengthy explanation, in paragraphs 124 to 135 of his reasons, on the matter of the appellant's indirect admission.

First, I note that the appellant did not address this issue in his factum or at the hearing before this Court, any more than he addressed any criticism of the trial judge’s determination of the appellant’s lack of credibility other than to point out the weakness of the inference drawn by the trial judge from his attitude during these family functions.

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