2011 QCCQ 7696, 2011 QCCQ 7696

R. c. Gosselin 2011 QCCQ 7696 JL1755 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Criminal and Penal Division” No: 500-01-038684-103 DATE: June 30, 2011 _____________________________________________________________________ THE HONOURABLE DENIS LAVERGNE, J.C.Q., PRESIDING _____________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v.

CLAUDE GOSSELIN Defendant ______________________________________________________________________ JUDGMENT _____________________________________________________________________ [ 1 ] The defendant stands charged with having caused, between March 31 and April 10, 2010, the death of Ms. Marguerite Thibeault, and thereby committing manslaughter. I. ISSUE [ 2 ] The only issue concerns the causal link between the stabbing of Ms. Marguerite Thibeault by the defendant and Ms.

Thibeault’s death, which, according to the evidence, occurred between April 1 and 9, 2010, without it being possible to determine the date with certainty. [ 3 ] The defendant contends that the causal link between his acts and the death was broken because of a combination of extrinsic elements, with the result that he cannot be held legally responsible for Ms. Thibeault’s death . II. THE SALIENT AND RELEVANT FACTS [ 4 ] The defendant does not dispute the essential facts. [ 5 ] In his testimony, he admits stabbing Ms.

Thibeault with a knife three times in the part of the body between the pelvis and the shoulders; he states, however, that he was not sure that he caused her any injury. [ 6 ] It should nevertheless be pointed out that he was, by his own admission, completely drunk, to the point, as he phrased it, [ translation] “ of being out of his head ” , [ translation] “ of having lost it ”, and [ translation] “ of coming back to earth ” when alluding to April 2, 2010, the day after the assault. [ 7 ] The Court has accepted the following relevant facts from the testimonies: - the defendant and Ms.

Thibeault had known one another for a while; - both were patrons of the Midway bar on St. Laurent Boulevard ; Ms. Thibeault was a regular customer and the defendant, an occasional one; - both lived on government pensions and benefits; all the evidence also shows that both were large consumers of alcohol;

- On April 1, 2010, both were drinking beer at the Midway bar; Ms. Thibeault was playing one of the [ translation] “video poker“ machines; - the defendant was likely pestering her to buy him a drink; - Ms. Françoise Pouliot, an employee of the establishment, threw him out of the bar; - when Ms. Thibeault left the bar, the defendant accosted her; an altercation ensued during which he stabbed her three times with a knife; - alerted by the cries of patrons that Ms.

Thibeault had just been stabbed outside, Albert Auclair, the owner of the bar, went looking for his customer whom he found in one of the stalls in the women’s washroom. He does not remember what Ms. Thibeault said when he asked her what had happened. However, he did see blood and a wound when Ms. Thibeault lifted her sweater. She did not want him to call an ambulance and simply asked him for adhesive bandages, with which she bandaged her wound. He did not see her leave the establishment, nor did he see her after April 1; - Ms. Françoise Pouliot also said that she saw blood and a wound on the side of Ms.

Thibeault’s abdomen, which Ms. Thibeault showed her, once back at the bar after the altercation and the scene in the washroom. Although encouraged to go the hospital, Ms. Thibeault refused. According to Ms. Pouliot, one to two hours then went by before Ms. Thibeault actually left the bar. Until she left, she continued to play on one of the video poker machines; - Ms. Pouliot, who incidentally was Ms.

Thibeault’s cousin, did not see her again until she discovered her dead, on April 9, 2010, sitting on a chair in an apartment occupied by a man named Rivest; - On April 2, 2010, the defendant went to a neighbourhood police station that likely serves the area where the Midway bar is located. Judging from the defendant’s testimony, shortly beforehand he had received scarcely veiled threats from an individual he had met at the “Sac à dos”, a community resource in the neighbourhood. This individual told him that he had learned that Ms. Thibeault had been stabbed.

He advised the defendant that it was in his interest to [ translation] “move”. In short, the defendant informed police officer Julie Roy of his fear of being beaten because he had been identified as the assailant with a knife. He told the police officer about the incident at Midway bar but did not say that he had stabbed Ms. Thibeault with a knife; however, he mimicked punches to the side of the abdomen; - the police officer found nothing to suggest any incident of conjugal violence or any altercation whatsoever in the area in the preceding 24 hours.

However, she discovered that there was an apprehension order in force against the defendant. When the order was being executed, the defendant suffered distress requiring the intervention of Urgence-Santé; - between April 1 and 12, 2010, the date of the defendant’s arrest, he came and went in the city, going about his daily activities and at the same time waiting, if not hoping, to see Ms. Thibeault again. He even returned to the “Sac à dos” in an attempt to get news of Ms.

Thibeault’s state of health. [ 8 ] According to the forensic report prepared by Caroline Tanguay, an expert forensic pathology witness, there were three wounds caused by a sharp pointed weapon: - a first wound about 2.2 cm wide at the skin, located on the left flank; the weapon penetrated and moved from back to front, left to right and top to bottom over about 8 cm in depth; the weapon went through soft tissue only.

This injury was not mortal; - a second wound about 2.5 cm wide at the skin, located on the left flank, and more posterior to the first wound; the weapon penetrated and moved from back to front, left to right and top to bottom over about 7 cm in depth; the weapon penetrated the abdominal cavity between the eleventh and twelfth left ribs laterally and perforated the left colon (or lower large intestine). The abdomen contained about 200 ml of thick material (peritonitis material). This injury, had it been received quick and adequate treatment, would probably not have been fatal.

However, the perforation of the colon allowed fecal material to end up in the abdomen, resulting in peritonitis, which led to death; - a third wound about 2 cm wide at the skin, located in the left abdomen; the weapon penetrated and moved from front to back, and left to right over about 12 cm in depth. The weapon went through the soft tissues of the abdominal wall, through the peritoneum (which envelops the abdominal organs) but did not penetrate the internal organs or blood vessels. This injury was not fatal. (Exhibit P-1, forensic report, page 4) [ 9 ] Ms.

Tanguay wrote: [ translation] …Her injuries were not fatal in themselves if quickly and adequately treated. If perforation of the colon is not treated, it will lead to peritonitis (generalized infection of the abdomen), which will also result in death if not treated … Then: [ translation] …It is not possible to determine how long the victim was able to survive with peritonitis before dying because this type of trauma with

fatal peritonitis can take from several hours to a few days… (Exhibit P-1, forensic report , page 6) [ 10 ] She concluded: [ translation] The death is attributable to a secondary abdominal trauma caused by acut by a sharp, pointed weapon, with secondary peritonitis… (Exhibit P-1, medical-legal report , page 7) [ 11 ] At the hearing, the pathologist confirmed that the length of time before death varies depending on the existing conditions, in particular the ambient temperature or even an antalgic position the deceased could have adopted, momentarily plugging the fissure in the incised organ and thereby delaying the progression of the infection. [ 12 ] Nevertheless, based on the evidence she had, the pathologist estimates that death occurred most probably between April 3 and 7, 2010. [ 13 ] During cross-examination, she stated that Ms.

Thibeault could have survived even if she had received the appropriate medical care 48 hours after the event. III. ANALYSIS [ 14 ] Under section 222(5)(

a) of the Criminal Code , a person commits culpable homicide when he causes the death of a human being by means of an unlawful act. [ 15 ] In the present case, to determine whether the defendant can be held responsible for the death of Ms. Thibeault, it must be decided whether this result can be attributed to him in fact and in law. [ 16 ] This involves factual and legal causation. [ 17 ] Factual causation does not pose any problem in the present case. [ 18 ] The defendant acknowledges stabbing Ms.

Thibeault with a knife three times, although he asserted in his testimony that he was not sure if he had caused her any injury. In any event, the evidence shows, beyond any reasonable doubt, that Ms. Thibeault was stabbed with a knife three times and that death resulted from secondary peritonitis caused by the entry of a sharp pointed weapon into Ms. Thibeault’s body. [ 19 ] Legal causation concerns the criminal responsibility of the perpetrator of the unlawful act. In other words, it is necessary to determine whether the defendant can be held criminally responsible for Ms.

Thibeault’s death because he stabbed her. [ 20 ] In R. v. Nette , [1] the Supreme Court of Canada amended the wording of the Smithers [2] causation test to be henceforth expressed as “significant contributing cause” of death. [ 21 ] The defendant argues that there are independent factors in the record that took place subsequent to his acts, legally breaking the link between such acts and the result. [ 22 ] Essentially, these independent factors are: - the passivity, omission, even carelessness of Mr. Auclair or Ms. Pouliot in assisting or coming to the aid of Ms.

Thibeault or ensuring that she receive necessary medical care; - the failure of police officer Julie Roy to inquire further into what the defendant was talking about when he came to the police station on April 2, 2010; - the negligence of Ms.

Thibeault herself to seek medical care in a timely manner perhaps because her faculties were impaired by the consumption of alcohol. [ 23 ] Even taken as proven, these proposed factors remain immaterial, do not break the legal causal link, and do not exculpate the defendant. [ 24 ] During the analysis, it cannot be concluded that these omissions constitute intervening acts such that the knife wounds are no longer a “significant contributing cause” to Ms.

Thibeault’s death. [ 25 ] The case law cited by the defendant, along with several examples, does not support the defendant’s viewpoint. [3] [ 26 ] As noted by the Supreme Court in Nette , the issue is not to discover who or what caused the death of Ms. Thibeault, but rather whether the defendant caused her death. [ 27 ] Furthermore,

section 224 of the Criminal Code stipulates: Where a person, by

an act or omission, does any thing that results in the death of a human being, he causes the death of that human being notwithstanding that death from that cause might have been prevented by resorting to proper means.

[ 28 ] In Smithers , the Supreme Court of Canada cites with approval an old judgment of the Ontario Court of Appeal, which noted: … There are many unlawful acts which are not dangerous in themselves and are not likely to cause injury which, nevertheless if they cause death, render the actor guilty of culpable homicide … … In the case of so-called intentional crimes where death is an unintended consequence the actor is always guilty of manslaughter at least .… [4] [ 29 ] Accordingly, “it is no defence to a manslaughter charge that the fatality was not anticipated or that death ordinarily would not result from the unlawful act . ” [5] [ 30 ] From this perspective, an argument could be made that Ms.

Thibeault’s disposition to avoid doctors, or at least her habit not to see themdoctors, as reported by her cousin Ms. Pouliot , should be considered under the principle whereby the perpetrator of an unlawful act must take his victim as he finds him. [ 31 ] Be that as it may, another observation is necessary regarding the defendant’s submission concerning the failure of others to intervene. [ 32 ] First, it should be noted that, based on the testimonies of Mr. Auclair and Ms. Pouliot, Ms. Thibeault refused to go to the hospital or to see a doctor . Furthermore, according to Ms. Pouliot , Ms.

Thibeault continued to play video poker after the altercation for an hour or two. Under the circumstances, these persons cannot be faulted even if they did see a wound and some blood. [ 33 ] Under

section 2, paragraph 2 of the Charter of human rights and freedoms , [6] every person must come to the aid of anyone whose life is in peril. However, nothing indicated to Ms. Pouliot or Mr. Auclair that the life of Ms. Thibeault was in peril. That being said, the Court hastens to points out that, even if an obligation to come in aid of Ms. Thibeault did exist, the Court is not stating that the legal causal link would have been broken because of the failure of Mr. Auclair or Ms. Pouliot to act. [ 34 ] Next, the same reasoning applies to police officer Julie Roy.

Moreover, according to the defendant’s testimony about his visit to the police station on April 2, the evidence does not show that Ms. Roy had received relevant information to the effect that Ms. Thibeault’s life was in peril. [ 35 ] For these reasons, the Court finds that the legal causal link was not broken between the knife stabbings and the death of Ms. Thibeault. Consequently, the prosecution has established, beyond any reasonable doubt, all the essential elements of the charge.

FOR THESE REASONS, THE COURT: DECLARES Claude Gosselin guilty of manslaughter. _________________________________ DENIS LAVERGNE, J.C.Q. Mtre Sonia Lebel For the prosecution Mtre Yves Gratton For the defendant Dates of hearings: June 13, 14 and 30, 2011