2021 QCCA 1573, 2021 QCCA 1573

Anel Espino c. R. 2021 QCCA 1573 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007341-207 ( 500-01-175561-189 ) MINUTES OF HEARING THE PUBLICATION BAN IS STILL IN FORCE ON ANY INFORMATION THAT COULD IDENTIFY THE VICTIMS (S. 486.4(1) CR.C.) DATE: October 20, 2021 CORAM: THE HONOURABLE ROBERT M. MAINVILLE, J.A. JOCELYN F. RANCOURT, J.A. SOPHIE LAVALLÉE, J.A.

APPELLANT COUNSEL JONATHAN ANEL ESPINO Mtre DAVID LECLAIR ( David Leclair, Avocat ) RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre MARIANNA FERRARO ( Director of Criminal and Penal Prosecutions ) On appeal from a judgment rendered on March 26, 2020 by the Honourable Alexandre St-Onge of the Court of Québec, Criminal and Penal Division , District of Montréal . NATURE OF THE APPEAL: Culpability – Sexual assault, assault and death threats . Clerk at the hearing : René Gutknecht Courtroom: Antonio-Lamer HEARING 11:18 Commencement of the hearing.

Identification of counsel. 11:20 Submissions by Mtre Leclair. 11:28 Submissions by Mtre Ferraro. 11:35 Recess of the hearing. 11:38 Resumption of the hearing. BY THE COURT : Judgment – see page 3. 11:39 Conclusion of the hearing.

René Gutknecht, Clerk at the hearing JUDGMENT THE PUBLICATION BAN IS STILL IN FORCE ON ANY INFORMATION THAT COULD IDENTIFY THE VICTIMS (S. 486.4 CR.C.) [ 1 ] The appellant appeals the judgment of the Court of Québec dated March 26, 2020 (Judge Alexandre St-Onge) finding him guilty of assaulting his former girlfriend with a knife, of threatening to cause her death or bodily harm and of sexually assaulting her. [ 2 ] The Crown’s evidence was based on the complainant’s testimony and on copies of messages to the complainant in which the appellant threatens her and recognizes that he hurt, manipulated and scared her. [ 3 ] The appellant’s defence is grounded on his denial of the events and on his assertion that the complainant fabricated the incriminating text messages by accessing his Facebook page without his knowledge. [ 4 ] The trial judge believed the complainant’s testimony and disbelieved the appellant, finding that he lacked credibility. [ 5 ] The sole ground of appeal raised by the appellant is set out as follows in his appeal brief: [1] [ translation ] Did the Honourable trial judge err in fact and in law by using a credibility contest, preferring the appellant’s version riddled with contradictions to that of the accused and his mother, thus imposing an undue burden on the accused, contrary to the teachings of the Supreme Court in R. v.

W(D) ? L’honorable juge de première instance a-t-il erré en fait et en droit en se livrant à un concours de crédibilité, préférant la version de la plaignante, tout en n’appréciant pas ses contradictions, à celles de l’appelant et de sa mère, imposant ainsi un fardeau indu à ce dernier, contrairement aux enseignements de la Cour suprême dans l’arrêt R. c.

W(D) ? [ 6 ] In light of the fact that the testimony of the appellant’s mother concerned marginal issues, the appellant basically submits that the judge erred in believing the complainant and in not believing his own contradictory version of the events, including his bald assertion that the incriminating text messages were fabricated by the complainant. [ 7 ] In essence, the appellant asks this Court to review the credibility findings of the trial judge in order to substitute our own evaluation of the witnesses’ credibility. As this Court noted in Poulin v.

R. , this type of analysis should be avoided in appeal in the absence of a palpable and overriding error on the part of the trial judge. [2] Justices Bastarache and Abella, in an oft-cited passage from R. v. Gagnon , expressed the rule as follows: [3] [20] Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.

That is why this Court decided, most recently in H.L. , that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected. [ 8 ] As this Court further noted in J.R. v. R. : [4] [35] While the alleged error of law pertained to sufficiency of reasons in Gagnon , the invitation to deference equally applies to the adequateness of the reasons dealing with the burden of proof and findings of credibility.

Appellate courts should avoid revisiting factual issues under the guise of errors of law, in other words, reframing what is essentially an alleged error of fact in order to refashion it as an error of law on the basis of W.(D.). [ 9 ] The appellant submits that the trial judge gave disproportionate weight to the complainant’s version of the events while largely discounting his own version which was, in his opinion, equally credible.

In the absence of a clear and convincing demonstration of the application of a double standard by the trial judge, such an argument should be dismissed, as this Court stated in Figaro v. R. : [5] [19] C’est une évidence qu’une évaluation soignée des témoignages contradictoires n’exige pas un examen ou des motifs égaux sur un plan quantitatif et il s’ensuit qu’une évaluation inégale ne démontre pas une erreur si la

partie qui s’y attaque ne peut cibler précisément une faille ou une lacune déterminante. La jurisprudence rappelle clairement qu’un moyen d’appel de cette nature exige une démonstration convaincante de l’application d’un double standard inéquitable dans l’appréciation de la preuve contradictoire. Il s’agit d’un seuil exigeant.

En l’absence d’une telle démonstration, cette question relève de l’appréciation de la crédibilité des témoignages et mérite une grande déférence. [ 10 ] In this case, looking at the trial judge’s reasons as a whole and in the context of the evidence submitted to him, they adequately demonstrate the rationale behind his conclusions on credibility and reasonable doubt. We agree that the trial judge’s explanations for doubting the appellant’s credibility were reasonable and amply justified his conclusion as to the verdict. The trial judge properly

instructed himself with respect to issues of reasonable doubt and then proceeded to set out a number of instances and statements in the accused’s testimony which led him to doubt his credibility. He further considered the complainant’s testimony and adequately explained why he believed her. [ 11 ] For these reasons, THE COURT: [ 12 ] DISMISSES the appeal. ROBERT M. MAINVILLE, J.A. JOCELYN F. RANCOURT, J.A. SOPHIE LAVALLÉE, J.A.