R. v. W., 2020 QCCQ 8498

JH 5496 Translated from the original French R. c. Rozon 2020 QCCQ 8498 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Criminal and Penal Division” No.: 500-01-181875-185 DATE: December 15, 2020 ______________________________________________________________________ PRESIDING: THE HONOURABLE MÉLANIE HÉBERT , J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v.

Gilbert ROZON Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ This decision is subject to an order under s. 486.4 of the Criminal Code directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way. INTRODUCTION [ 1 ] In 1979 or 1980, Gilbert Rozon invited AB [1] for a drink. He went to pick her up at the radio station where she was working late one evening. They went to a discotheque and then to a private home.

In 2017, in the wake of the accusations against Mr. Rozon, AB filed a complaint against him. Mr. Rozon is now on trial. He is charged with indecent assault and rape against AB. [ 2 ] AB and Mr. Rozon testified at the trial. They acknowledge that they spent the evening together at the discotheque and then went to a private residence. Their testimony is contradictory, however, on the sequence of events, in particular those on which the charges are based. [ 3 ] To determine if the Crown has proved beyond a reasonable doubt that Mr.

Rozon committed the offences with which he is charged, the Court must analyze the testimony of Mr. Rozon and of AB in light of the teachings in R. v. W.(D.) . [2] The credibility and reliability of the testimony are therefore at the heart of the debate. [ 4 ] The courts are often called upon to rule on this type of matter, which often involves contradictory testimony. In that way, other than the media attention it has generated, this case is not unusual.

On the other hand, just because the factual framework of such cases is seemingly straightforward does not mean that the issue to be decided is also straightforward. This case provides the Court with the opportunity to explain the legal issues involved when evidence of sexual offences is based primarily on contradictory testimony. PRINCIPLES [ 5 ] First, the Court will examine the historical context, namely, the evolution of the rules of evidence for sexual offences. Second, the Court will explain the fundamental principles that guide all decisions in criminal matters.

Last, the Court will underline the specific issues raised by cases involving sexual offences. I. Historical context [ 6 ] Historically, the courts have been suspicious and wary of the testimony of female victims of sexual offences. They developed specific rules of evidence applicable to their testimony. Myths and stereotypes, reflecting popular conceptions of women's morality, female sexuality, rape, and the rapist were introduced into the legal reasoning. [ 7 ] Society evolves and perceptions change over time.

Those changes are reflected in the legal system either through the enactment of legislative amendments or changes to common law rules. The law evolves. Discriminatory rules of evidence have been repealed. Myths and stereotypes have been identified and removed from legal reasoning. Thus, the reality that a complainant faced in a rape case some 40 years ago is different from the reality that she would face today in a sexual assault case.

[ 8 ] To properly explain that difference, the Court will focus on the following issues: corroboration, the spontaneous complaint, evidence of the complainant's previous sexual behaviour, and the concept of consent. Corroboration [ 9 ] Historically, women were considered unreliable witnesses and relegated to the same category as infants and accomplices.

Until 1976, the Criminal Code provided that a judge presiding at a trial for rape or indecent assault of a female must instruct the jury that it is not safe to find the accused guilty in the absence of evidence to corroborate the testimony of the female. [3] This rule of mistrust did not apply in a trial for indecent assault of a male person. It therefore applied exclusively to the testimony of female complainants. [ 10 ] In 1976, Parliament abolished that

section of the Criminal Code , but most courts concluded that the judge still had the latitude to instruct the jury of the dangers of declaring the accused guilty based on the testimony of the female complainant alone. [4] [ 11 ] In January 1983, a sweeping reform of sexual offences came into effect. [5] In particular, it aimed to correct the inequity in the law that placed an unfair burden on female victims of sexual assault and thereby eliminate gender discrimination in criminal law. [6] It was in the context of that reform that the rule of evidence with respect to corroboration was abolished. [7] [ 12 ] Since that legislative amendment, the judge or jury can convict the accused of a sexual offence based on the testimony of a female complainant alone, whether or not it is corroborated.

Requiring evidence of corroboration is equivalent to an error in law. [8] [ 13 ] If AB had filed a complaint in 1979 or 1980, the corroboration rule would have applied. Furthermore, although that rule was in force when the alleged offences were committed, it does not apply to this case because that rule of evidence did not survive its repeal. [9] The spontaneous complaint [ 14 ] Another particular evidentiary rule emanating from the common law that also reflects the courts' historical distrust of the testimony of female victims of sexual offences is the spontaneous complaint.

This rule is based on the myth and stereotype that the true rape victim will raise a “public outcry” while the act is fresh, that is, complain at the first reasonable opportunity. [10] In other words, if a woman is able to “retain her cool” after a sexual assault, it is because nothing happened. [11] [ 15 ] According to this rule, the absence of a spontaneous complaint has an important consequence.

It allows a negative inference to be drawn about the complainant’s credibility, that is, to infer that she is lying when she alleges that she did not consent to the sexual act. [12] The purpose of that rule is therefore not to strengthen the female complainant’s credibility, but to establish that she is not lying. [13] [ 16 ] In 1981, the Supreme Court discussed the fact that the rule was doubtful, [14] and in January 1983, as part of the reform of the law on sexual offences, Parliament abolished it. [15] [ 17 ] The fact that the complainant of a sexual offence did not complain immediately after the events must not, in itself, lead to an adverse inference about the complainant’s credibility or about whether she consented to the sexual act. [16] Moreover, there is no firm rule on how victims of sexual assault behave.

Some victims reveal it immediately; some will delay, while others will never reveal it. Reasons for not immediately disclosing an assault are numerous and include embarrassment, fear, guilt, loss of self esteem, loss of status, self-blame ... . [17] For that reason, the timing of the complaint is simply one “circumstance to consider in the factual mosaic of a particular case”. [18] [ 18 ] If AB had filed a complaint in 1979 or 1980, the rule on spontaneous complaints would have applied. That rule, however, did not survive its repeal, and as a result, it does not apply in this case.

Evidence of prior sexual behaviour [ 19 ] At common law, evidence of the complainant’s prior sexual conduct is admissible at trial for a sexual offence on two issues: consent and credibility. The relevance of this evidence is based on the myth and stereotype according to which a woman who consents to extramarital intercourse has a dual propensity: she is more inclined to consent to sexual relations, and she is more inclined to lie. That rule therefore makes it possible to examine the female complainant’s morality by presenting evidence of prior sexual conduct. [19] As the Supreme Court noted in R. v.

Barton , [20] this evidence serves to tarnish the complainant’s character, distort the trial process, and undermine the ability of the criminal justice system to effectively and fairly try sexual offences. [21] [ 20 ] In 1976, Parliament made a first legislative amendment to “alleviate some of the problems caused by the virtually unrestricted inquiry into a complainant’s previous sexual history”; [22] judicial

interpretation of that amendment did not, however, improve the lot of complainants. [23] [ 21 ] In 1983, as part of the reform of sexual offences, Parliament again amended the Criminal Code and added a regime aimed at governing the admissibility of the evidence on the complainant’s previous sexual behaviour. [24] In 1991, in Seaboyer , the majority of the Supreme Court declared part of that regime unconstitutional because it infringed the accused’s right to make full answer and defence. [25] [ 22 ] The following year, as part of a series of major reforms to the law on sexual offences, Parliament enacted a new regime of admissibility of the evidence of the complainant’s sexual conduct. [26] That regime aimed to protect the integrity of the trial by excluding irrelevant and misleading evidence, protect the accused’s right to a fair trial, and encourage the reporting of sexual offences by protecting the security and privacy of complainants. [27] Evidence of a complainant’s previous sexual activities were presumed inadmissible, unless they met three specific criteria.

That new framework for admissibility remains in place today. [ 23 ] Furthermore, Parliament also provided procedural guarantees to protect the complainant’s rights. Today, to obtain a ruling on the issue of the admissibility of such evidence, the accused must make an application in writing, setting out detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to the issue at trial. The hearing is held in camera . The

complainant is not compellable as a witness at the hearing but may appear, be represented by counsel, and make submissions. [28] [ 24 ] In this case, no evidence concerning AB’s previous sexual conduct was adduced. That said, had AB filed a complaint at the time, the defence would have been authorized to explore that issue. The notion of consent [ 25 ] Historically, the myth that a woman cannot be raped against her will had a significant impact on rape trials.

It meant that the prosecution had to examine the complainant to show that she struggled, or had no opportunity to do so, thereby attempting to establish lack of consent. The accused had to establish the opposite by arguing that if the complainant did not struggle, it was because she consented to the sexual intercourse. [29] That myth distorts the reasoning underlying issues of consent. [ 26 ] Over the years, the analysis of the notion of consent evolved and was refined. [30] As the Supreme Court's decision in Barton last year demonstrates, this concept is not necessarily easy to define, even for insiders.

It is therefore important to address it. [ 27 ] Every criminal offence has two components: the actus reus (the culpable act) and the mens rea (the culpable intent).

In matters of rape or indecent assault, the notion of consent is relevant both at the stage of the actus reus and of the mens rea , but the analysis of this notion differs according to the stage. [31] [ 28 ] For the purposes of the analysis of the actus reus , consent refers to the complainant’s subjective internal state of mind towards the sexual touching or intercourse, at the time it occurred. [32] Moreover, consent “requir[es] a conscious, operating mind, capable of granting, revoking or withholding consent to each and every sexual act” [33] .

A complainant who is asleep or unconscious does not have the capacity to consent to sexual relations. [34] This definition of consent falls within the rationale underlying the criminalization of sexual offences, that is, society’s determination to protect the security of the person, in particular the security of women. [35] [ 29 ] The complainant’s statement that she did not consent is an issue of credibility that must be analyzed in light of all of the evidence, including the behaviour she exhibited.

In addition, it is important to dispel from the analysis the myths and stereotypes, held by people who have never suffered abuse, about how victims of abuse are expected to react to the trauma. [36] [ 30 ] For the purposes of the mens rea , the analysis is instead focused on the accused’s mental state, that is, on the accused’s perception of the complainant’s consent. [37] The question is then whether the complainant, by her words or her conduct, communicated her agreement to engage in the sexual activity with the accused.

The emphasis is therefore on the complainant’s communication of consent, to avoid inadvertently straying into the forbidden territory of assumed or implied consent, which has no place in Canadian law. [38] [ 31 ] The defence of honest but mistaken belief in communicated consent operates where the accused mistakenly perceived facts that negate the culpable intent associated with the offence or that raise a reasonable doubt as to that intent. [39] It does not apply when the honest but mistaken belief in communicated consent rests on a mistake of law, namely the “scope of the consent” from a legal perspective, rather than on a mistake of fact. [40] A belief that silence, passivity, or ambiguous conduct constitutes consent is a mistake of law, and provides no defence. [41] [ 32 ] In this case, the developments in the case law on the notion of consent apply even though the offences occurred 40 years ago.

II. Fundamental principles [ 33 ] There are fundamental principles that apply to almost all criminal trials regardless of the alleged offence. These principles are at the heart of criminal law, and the courts apply them on a daily basis. It is therefore important to understand them. [ 34 ] First, the Court will address the presumption of innocence and the standard of proof beyond a reasonable doubt. Second, the Court will explain the rules regarding the assessment of contradictory testimony.

The presumption of innocence and the standard of proof beyond a reasonable doubt [ 35 ] A person accused of a criminal offence is presumed innocent until the Crown proves his or her guilt beyond a reasonable doubt. [ 36 ] The presumption of innocence is the cornerstone of criminal law. Originally recognized as a common law principle, it is now constitutionally protected. It is expressly protected by s. 11(

d) of the Canadian Charter of Rights and Freedoms [42] and is also an integral part of the general protection of the right to life, liberty and security of the person provided in s. 7 of the Charter .

It aims to protect the fundamental freedoms and human dignity of all persons accused of criminal behaviour who thereby expose themselves to serious social and personal consequences, including the possibility of deprivation of physical liberty, social stigma, and ostracism from the community. [43] [ 37 ] The standard of proof beyond a reasonable doubt is inextricably linked to the presumption of innocence. [44] That standard imposes an onerous burden on the prosecution and never shifts to the accused. [45] Thus, if at the end of the trial, a reasonable doubt subsists as to the guilt of the accused, he or she must be acquitted. [ 38 ] The presumption of innocence and the standard of proof beyond a reasonable doubt are of paramount importance.

They aim to prevent an innocent person from being found guilty of an offence he or she did not commit, which is an unacceptable result in a free and democratic society such as ours. [46] [ 39 ] The standard of proof beyond a reasonable doubt is not easy to define. It is more exacting than the standard used daily to resolve civil disputes, that is, the balance of probabilities. If at the end of a civil trial, the judge believes that the plaintiff’s submissions are more

probable than the defendant’s, the standard of the balance of probabilities is met. On the other hand, if at the end of a criminal trial, the judge believes that it is more probably that the accused is guilty than innocent, the standard of proof beyond a reasonable doubt is not met, and the person must be acquitted. [47] Moreover, because it is virtually impossible to prove something with absolute certainty, the standard of proof beyond a reasonable doubt does not require the prosecution to prove the accused’s guilt with such certainty.

It would be unreasonable to require absolute certainty, and such a burden would rarely be met. [48] [ 40 ] The standard of proof beyond a reasonable doubt thus raises the prosecution’s burden well beyond the balance of probabilities to virtual certainty. [49] That virtual certainty is necessary given the consequences of a guilty verdict. [50] As Harris, J. of the Ontario Superior Court noted, in a criminal trial, the parties are not on a level playing field; the rules of the game are heavily tilted in favour of the accused. [51] [ 41 ] The reasonable doubt of the standard of proof is a doubt that is based upon reason and common sense and is logically connected to the evidence or absence of evidence.

When such a doubt subsists, the person must be acquitted. Furthermore, an imaginary or frivolous doubt based on sympathy or prejudice is not a reasonable doubt, and, as a result, it cannot lead to an acquittal. [52] The assessment of contradictory testimony [ 42 ] In criminal law, there is no presumption that a witness is honest. [53] It is up to the judge to determine the degree of credibility and reliability that he or she will grant to each testimony given during the trial. As the Supreme Court noted in R. v.

Gagnon , [54] that exercise is not an exact 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”. [55] [ 43 ] The notions of reliability and credibility differ. Credibility refers to a person, to his or her personal characteristics, for example, honesty and integrity, which may be apparent in his or her behaviour or in the manner he or she answers questions.

Credibility is related to the sincerity of the testimony and the truth of the statements made. [56] In this regard, it is intangible. Reliability refers to the value of the account related by the person testifying, that is, the person’s capacity to observe, to remember, and to relate a fact. Reliability is connected to the accuracy or truth of the testimony. [57] It therefore has the advantage of being based on an objective approach. [58] The person testifying may honestly believe that his or her testimony is the truth when it is not, simply because he or she is mistaken.

The credibility of the person testifying does not necessarily make his or her testimony reliable. [59] [ 44 ] The analysis of the reliability and credibility of a witness's testimony takes into account, among other things, the answers given by the witness on examination and cross-examination. Through the questions they ask the witness, lawyers try to bring out the strengths or weaknesses of the witness in relation to the reliability and credibility of his or her testimony. The passage of time affects human memory. The more time passes, the more likely it is that memories will be distorted.

The passage of time is therefore a factor to consider when assessing the reliability of a witness's testimony. [60] Naturally, the more decisive the testimony is as to the guilt or innocence of the accused, the more important the issue of the reliability of that testimony becomes. [61] [ 45 ] As the Supreme Court explains in W.(D.) , the standard of proof beyond a reasonable doubt applies to the assessment of contradictory testimony in a criminal trial. The three-step test set out in that decision is well known. First, the judge must ask whether he or she believes the accused’s testimony.

If so, the judge must acquit. Second, if the judge does not believe the accused’s testimony, he or she must ask whether the testimony raises a reasonable doubt as to the accused’s guilt, given the evidence as a whole. If such a doubt exists, the judge must acquit. Third, if the testimony of the accused does not raise a reasonable doubt, the judge must determine whether the evidence he or she accepted establishes beyond a reasonable doubt that the accused committed the alleged offence.

If a reasonable doubt subsists, the judge must acquit. [62] [ 46 ] The W.(D.) test aims to ensure that the accused has the benefit of reasonable doubt in the presence of contradictory versions and prevents the judge from limiting his or her analysis to choosing the version he or she considers most plausible or truthful. [63] To limit the analysis to a choice between two versions blurs the notion of reasonable doubt and transforms the criminal trial into a contest of credibility, which it is not. [64] As the Court of Appeal stated, when credibility is at the heart of the determination of guilt, the solution cannot be based on the plausibility or likelihood of one or the other of the opposing versions, but must necessarily result from the rigorous application of the standard of reasonable doubt having regard to all the evidence. [65] The accused is entitled to the finding of fact the most favourable to him or her, if it is based on evidence in the record and not mere speculation. [66] [ 47 ] Moreover, the accused never has the burden of proving that the complainant is not telling the truth.

To require such a demonstration would go against the presumption of innocence. [67] Thus, in the presence of contradictory versions, a verdict of acquittal does not signify that the alleged incident did not occur. Rather, it signifies that the prosecution did not discharge its burden of proving the accused’s guilt beyond a reasonable doubt. [68] [ 48 ] That is not to say that the accused cannot be convicted on the basis of the testimony of just one witness. In such a case, the judge must explain his or her conclusions on credibility and reasonable doubt with regard to all the evidence.

The judge’s explanations must rule out the possibility that he or she engaged in a contest of credibility and demonstrate that he or she instead applied the standard of proof beyond a reasonable doubt. [69] III. The application of the principles to sexual offences [ 49 ] Still today, trials for sexual offences have specific challenges, namely those related to the dangers of using myths and stereotypes.

Eradicating them is one of the most urgent challenges faced by the courts. [70] Complainants must be able to rely on a system free from myths and stereotypes and on a judiciary whose impartiality is not compromised by these biased assumptions. [71] The public’s confidence in the judicial system’s capacity to treat cases involving sexual offences fairly depends on it. [ 50 ] Furthermore, maintaining public confidence also depends on the ability of the courts to explain the legal principles underlying their decisions. [ 51 ] The presumption of innocence and the standard of proof beyond a reasonable doubt apply to sexual offences in the same way as

they apply to other offences. The test in W.(D.) and the need to analyze the reliability and credibility of the testimony heard applies when there are contradictory versions, whether the offence is of a sexual or other nature. The applicable principles are thus the same, whether the offence is of a sexual or other nature. [ 52 ] Because sexual offences are often committed in private, it is not unusual for there to be no witnesses other than the complainant and the accused. In that situation, the trial judge is confronted with contradictory versions and must apply the W.(D.) test.

The judge cannot be satisfied with choosing the most probable or likely version. It is therefore possible for the judge to acquit the accused, even if he or she does not believe the accused, and even if he or she considers the complainant’s version to be the most plausible or credible.

To the layperson, who does not understand how the presumption of innocence and the standard of proof beyond a reasonable doubt apply, such a result may seem unfair or biased even though it is consistent with these principles. [ 53 ] In addition, when the Crown’s evidence rests on the complainant’s testimony alone, that testimony is determinative. It is therefore common for the complainant to be asked many questions in an attempt to establish or undermine the reliability or credibility of her testimony.

It is also common for the complainant’s entire testimony to be analyzed in detail by the lawyers during their arguments and, ultimately, by the judge when he or she renders a decision.

For the layperson, who does not understand the need to analyze issues of reliability and credibility, the nature of the questions asked of the complainant and the detailed analysis of her testimony may seem to show that those involved in the justice system are unduly suspicious of the testimony given by sex crime victims, which is not the case. [ 54 ] As noted by Molloy, J. of the Ontario Superior Court of Justice, [72] many criticize the justice system's handling of sexual offences, noting that the system is unfair to victims and tends to favour the accused.

Such criticism may have the effect of discouraging victims of sexual crimes from pressing charges against their aggressors. [ 55 ] In the face of this criticism, it is important to remember that the purpose of the criminal trial is to determine whether the evidence adduced establishes, beyond a reasonable doubt, that the accused committed the offence with which he or she is charged. The presumption of innocence and the standard of proof beyond a reasonable clearly favour the accused, but these principles apply to criminal trials whether or not the alleged offence is sexual in nature.

Furthermore, these principles are of paramount importance in a free and democratic society. [ 56 ] It is also important to recall that the complainant is subject to examination and in-depth cross-examination not because the actors in the justice system do not believe her, but rather because it is through her testimony that the Crown is attempting to establish the commission of the offence beyond a reasonable doubt. Thus, the slogan [ translation ] “believe the victim” associated with the “#MeToo” movement has no place in criminal law.

It is contrary to the presumption of innocence to assume that the complainant is telling the truth and require that the accused show that she is not. [ 57 ] Finally, it is important to remember that a verdict of acquittal does not mean that the judge does not believe the victim. Rather, it signifies that the prosecution did not discharge its burden of proving the accused’s guilt beyond a reasonable doubt. ANALYSIS [ 58 ] The Court will first analyze the Crown’s evidence and then that of the defence. That analysis will be followed by the application of the principles set out in W.(D.) . I.

The Crown’s evidence [ 59 ] The Crown’s evidence rests on the testimony of AB and that of her friend CD. AB’s testimony [ 60 ] The Court will begin by summarizing AB’s testimony and will then address the defence’s arguments related to that testimony. [ 61 ] The events took place in 1979 or 1980, when AB was 19 or 20 years old. She was a CEGEP student and worked part-time at a radio station. She met Mr. Rozon two or three times at the radio station. They eventually agreed to have a drink together. [ 62 ] At the agreed time, late in the evening after she finished her shift, Mr.

Rozon went to pick up AB at the radio station. They went to a discotheque. During the evening, Mr. Rozon had conversations with several people he knew. According to AB, there was no chemistry between them. [ 63 ] The evening ended when the bars were about to close. AB left with Mr. Rozon, who was to drive her back to her parents’ home. In the car, he suggested that they do some “necking”, which she refused because she was not interested in him, and he clearly was not interested in her. Mr. Rozon then told her that he had to stop at his secretary’s home to pick up some documents.

When they arrived at the residence, Mr. Rozon asked AB to come inside to wait for him, and she accepted. [ 64 ] AB sat on a sofa in the living room, and Mr. Rozon went to another room. When he came back, Mr. Rozon sat down beside AB, threw himself on her, kissed her, and put his hand between her breasts. AB defended herself. They struggled and rolled onto the ground. AB was on her back on the ground. Mr. Rozon was also on the ground near AB’s knees. He tried to put his hand up AB’s skirt and take off her underwear, but AB fought him and pushed him away with her heels. Mr. Rozon stopped.

AB got up and readjusted her clothing. These events lasted about 30 or 40 seconds. [ 65 ] AB asked Mr. Rozon to take her home, but he refused because he was too tired. He suggested she sleep in one of the bedrooms, and she accepted. AB then considered the situation resolved, that is, that Mr. Rozon had understood that there would be no sexual relations. She therefore did not feel in danger. In addition, AB felt that she did not have the means to leave the home at that time of night. She did not want to ask her father to come and get her, and there were no taxis or public transit.

AB went to the bedroom, probably removed her skirt, lay down, and fell asleep. She does not know if Mr. Rozon slept in the same room or the same bed as she did.

[ 66 ] The next morning, when AB woke up, Mr. Rozon was on top of her. He was determined to have intercourse with her. AB did not want to have intercourse with Mr. Rozon, but she was not strong enough to fight and resist. The only way she foresaw getting out of the situation was to go along with it. She therefore let him have his way and stared out the window. There was vaginal penetration. Afterwards, Mr. Rozon drove AB back to her parents’ home. Since the events, AB has felt angry with herself and guilty because she did not fight and resist. [ 67 ] In 1998, when she learned that Mr.

Rozon had been discharged in connection with a sexual assault, AB told some of her colleagues at work about that evening, without mentioning what happened that morning, that is, the rape. [ 68 ] In 2017, AB reported Mr. Rozon’s actions. After filing a complaint with the police, she discussed the events with her mother, who replied that she knew about it because they had talked about it in the 1990s. AB has no memory of that discussion.

She is not sure what she told her mother or when they discussed it. [ 69 ] Two days after filing her complaint with the police, AB ran into CD, one of the friends she was working with at the radio station at the time of the events. CD told her that she knew about the events because they had discussed them at the time. AB has no memory of the conversation that she had at that time with CD.

She is surprised that she even mentioned it because it was not like her to portray herself in a situation where she appeared weak. [ 70 ] During arguments, the defence submitted that AB’s testimony was not reliable for the following three reasons: (1) her testimony contains numerous memory lapses and lacks detail; (2) there are contradictions in her testimony and between her testimony and the statement she gave to the police; and (3) her testimony contains implausibilities. [ 71 ] The Court will now address the defence’s first argument concerning the reliability of AB’s testimony, that is, the presence of memory lapses and the lack of detail. [ 72 ] It is true that AB does not remember if the events took place in 1979 or 1980.

She remembers only that they took place when she was in CEGEP, that she was working at the radio station, and that an event called “La Grande Virée” was discussed. Even the fact that her brother was the victim of attempted murder that same evening does not help her to situate these events in time. [ 73 ] AB cannot remember her conversations with Mr. Rozon before he asked her to go for a drink. She cannot remember who suggested it, which day of the week they went out, what time they left the radio station, what they drank that night, what they talked about that evening, or what time they left the discotheque.

She thinks she took off her skirt before she went to bed, but she is not sure. She thinks that Mr. Rozon slept in another room, but her memories are not clear enough to allow her to confirm that he did not sleep in the same room or the same bed as she did. She cannot specify whether they were on or under the covers when the rape happened. She thinks Mr. Rozon ejaculated, but she is not sure, and she cannot say where he ejaculated. She does not remember discussing the events with her friend CD the next day.

She does not remember talking about them to her mother in the 1990s. [ 74 ] She cannot remember the words exchanged with Mr. Rozon, but she remembers either the meaning of the words or how she felt during the events. For example, she cannot remember Mr. Rozon’s exact words when he asked her to engage in “necking”, but she remembers what he meant. She is unable to say whether she asked Mr. Rozon to stop when he threw himself at her when she was sitting on the couch. She does not know what she said to Mr. Rozon when she woke up and he was on top of her.

She therefore cannot say if she asked him to stop, and she cannot confirm if she told him, “ok go”, even if she thinks she did not. [ 75 ] In the case of historical crimes, the courts assess the reliability of a witness’s testimony taking into account the time that has elapsed since the alleged offences. Thus, it is not unusual for a person testifying about an event that occurred dozens of years ago not to remember the exact date and time the events occurred, even for an event as traumatizing as a crime committed against him or her or a loved one.

Similarly, it is possible that the person will not remember certain details or peripheral facts of the offence. The same reasoning applies to what was said. Often, witnesses remember the content of what was said but cannot remember the exact words used dozens of years later.

Furthermore, the opposite would be surprising, unless the witness had written the words down, for example. [ 76 ] In such circumstances, to assess the reliability of the testimony, the Court must determine whether the witness truly remembers the events, or if his or her memories have faded and been replaced. [ 77 ] In this case, AB is uncertain of the year, the times, and other peripheral facts, which in itself is not fatal. [73] The debate must be refocused with respect to the words said. AB’s memory is clear: she did not want to engage in “necking” with Mr.

Rozon, she did not want sexual contact with him in the living room, and she did not want to have intercourse with him the next morning. She remembers communicating that non-consent verbally in the car and with her actions, when she tried to push Mr. Rozon away in the living room. The intercourse in the morning began while she was still sleeping so she was not capable of consenting to it. Therefore, the issue of whether AB told Mr. Rozon to stop or said something like it is not determinative given the facts of the case. The situation would be different if, for example, Mr.

Rozon’s defence was that AB had verbally consented to the sexual activity, but that is not the case. [ 78 ] There are other inaccuracies in AB’s testimony that are harder to understand. The fact, for example, that she cannot say with certainty that Mr. Rozon was not sleeping in the same room or in the same bed with her or, the fact that she cannot remember CD’s reaction the day after the events when she told her about that evening. However, AB is transparent about the limits of her memories.

She explained that her memories feel like a movie where she is sometimes an actor, and sometimes a [ translation ] “video recorder”. It is a silent movie because the words have become lost over time. She has very specific memories of less important details, but she has no memory of important elements. At the outset, she admitted that her most confused memories are of the events the next morning.

She explained that she has spent 40 years [ translation ] “burying” the event, [ translation ] “compartmentalizing” and not thinking about it, but that she has been thinking about it every day for the past three years. [ 79 ] The defence submits that AB’s memories are not real. Rather, they reflect a reconstruction of events influenced by the remarks of her confidants over the years. The defence’s argument is not based on the evidence but on pure speculation. In fact, AB’s testimony is clear.

She does not remember her conversation with CD the day after the events, her conversation with her mother in the 1990s, or her conversation with her colleagues in 1998. After she filed her complaint, AB discussed the events with a few people in her entourage who

told her that they understood how she felt, in particular with respect to the guilt and anger she feels.

There is therefore no evidence that these persons or discussions could have influenced AB’s memories, especially since AB explained several times that the first time she described the events in detail was when she decided to file a complaint with the police. [ 80 ] The Court will now turn its attention to the defence’s second argument related to the reliability of AB’s testimony, that is, the presence of contradictions. [ 81 ] It is not unusual for the examination and cross-examination process to reveal details that were not previously mentioned or to lead the witness to qualify his or her previous answers.

In the same way, the witness can explain some contractions. Not all contradictions have the same weight. When there are contradictions in testimony, the Court must analyze them to verify whether they can be explained or if they are instead an indication of the witness’s lack of credibility or lack of reliability. [ 82 ] In this case, the Court will begin its analysis by noting that five of the subjects identified by the defence as containing contradictions simply do not contain any. First, in cross-examination, AB testified that she asked Mr.

Rozon to drive her to her parents’ home after she refused to engage in “necking”. The defence noted that this statement by AB contradicts her testimony in chief where she did not mention having asked Mr. Rozon to do that. The transcriptions of AB’s testimony reveal that in her testimony in chief, she stated that she did ask Mr. Rozon to do that. [74] Therefore, AB’s testimony is not contradictory. [ 83 ] Second, there is no contradiction in AB’s testimony with respect to establishing whether, during the event in the living room, Mr.

Rozon [ translation ] “touched her” or [ translation ] “touched her through her clothing”. Her testimony is clear: he touched her, because he touched her underwear. [75] [ 84 ] Third, there is no contradiction with respect to establishing whether Mr. Rozon used a key to unlock the door to the residence. On this subject, AB testified [ translation ], “the house, the door was not locked, there was no key, anyhow, we went into the house, like, ipso facto ”. [76] Never in her testimony did she state that Mr. Rozon did not have a key in his hand; rather, her testimony was that he did not use a key.

The defence suggests that there is a contradiction with AB’s previous statement to police officers when they asked her if Mr. Rozon had the keys, and she answered [ translation ], “no, I do not remember any”. She added, [ translation ] “but if he did have the keys in his hand, I do not remember that”. When questioned about all this, AB explained that her memory is clear: the events flowed: Mr. Rozon went up the stairs, opened the door, and went in.

He did not stop in front of the door to take out the keys and then unlock the door. [77] AB’s testimony contains no contradictions on this subject. [ 85 ] Fourth, when AB gave the reasons why she refused the offer to engage in “necking”, she added, [ translation ] “not with him, because there was no

preamble leading up to that.” According to the defence, there is a contradiction with AB’s previous statement to the police because she never gave that reason to justify her refusal. In cross-examination, however, AB emphasized that she did mention it in her statement to the police when she said, [ translation ] “well since … especially since the situation was not going in that direction.” [78] The Court accepts AB’s explanation. There is no contradiction in her testimony on this subject. [ 86 ] Fifth, the defence argues that there is a contradiction concerning the number of buttons that came off AB’s blouse.

The Court notes that AB’s testimony on that matter is consistent: the first button from her blouse came off when Mr. Rozon put his hand between her breasts, which made her blouse come open. She managed to close her blouse by tucking it into her skirt. During her cross- examination, AB was questioned about the previous statement she had given to the police. She admitted having said the following: Q. [ translation ] “But the buttons stayed on your shirt? They were not ripped off?” A. [ translation ] “That’s what I remember, yes. No, actually, the buttons came off.

The buttons also came off.” When the defence suggested to AB that she must have told the police officers that all of the buttons on her blouse came off, AB answered that that is not what she meant to say when she answered this question. [79] The Court accepts this explanation, in particular given the lack of precision during the exchange between AB and the police officers on the subject. There is no contradiction in AB’s testimony about the buttons on her blouse. [ 87 ] Furthermore, the Court notes that the five contradictions identified by the defence relate to elements peripheral to the charges.

Thus, even if there had been contradictions in AB’s testimony on these subject, those contradictions alone would not have impacted the credibility and reliability of AB’s testimony, which is otherwise consistent with respect to the facts on which the charges are based. [ 88 ] Two other contradictions identified by the defence are more of a reflection of the way AB expresses herself. First, in cross- examination, AB acknowledged that she could not say exactly when they left the discotheque, that is, if it was before, after, or at the “last call”.

When questioned on the fact that she used those words in her statement to the police, AB explained that she meant that their departure coincided with the end of the evening. [80] The Court accepts this explanation. This contradiction therefore has no impact on AB’s credibility. The Court has already addressed the issue of the reliability of AB’s testimony on the matter of the time they left the discotheque. [ 89 ] Second, when questioned on her reaction to the events that took place in the living room, AB explained why she could not leave the residence and referred to the fact that there were no taxis.

In cross-examination, she admitted that she did not check if there were any taxis and explained that at that time, she just never took taxis. [81] Therefore, it is not a contradiction, but a statement that AB subsequently nuanced and explained. That has no impact on the credibility or reliability of her testimony. [ 90 ] As for the contradictions with respect to the words spoken during the events, the Court accepts that AB is transparent on this issue: she does not remember the words spoken but rather the meaning of those words.

Her explanation for the reason for not nuancing all of her answers on this subject in her statement to the police is credible. [82] There is no contradiction that affects her credibility. The Court has already addressed the issue of the reliability of AB’s testimony on the subject. [ 91 ] Similarly, AB admits to using the words [ translation ] “oppression, domination, constraint, restraint, power and insistence” for the first time in her testimony before the Court. The defence sees this as not only a contradiction, but also an exaggeration on her part. The Court does not accept this argument.

It is not sufficient to establish a contradiction to show that the witness is using a word that he or she has not used before. A context must be established that allows the impact of the use of the word on the witness’s story to be understood. [ 92 ] When she used the word [ translation ] “oppression” for the first time, AB specified the feelings that came to her mind during the

events of the next morning. She used it in the following context, [ translation ] “So, I can’t really tell you how it happened, because the two feelings that come to mind are oppression, but not oppression ... just why did I do it ...“. [83] She used it a second time in relation to these events when she said, [ translation ] “I remember being on my back; I was trying to look out the window. I remember the oppression.

I remember there was penetration”. [84] [ 93 ] When she used the words [ translation ] “restraint” and [ translation ] “constraint”, she was answering a question about the degree of physical force used during the events in the living room. She said, [ translation ] “It was ... restraint. You know, like someone who is constraining you. Not ... it wasn’t blows, it was not ... You know, it wasn’t that. It’s like someone who is constraining you, who ... strongly insists”. [85] She used those words to describe the situation, by opposition to blows.

She reused those words when she explained why, in her opinion, the events in the living room ended. She explained, [ translation ] “… the word that comes to mind is domination, or restraint, or willingness to ... to go ahead with his intention in a ... in a forceful way”. [86] She continued by again contrasting these words with blows. In other words, if she used these words, it was to try to explain the situation’s dynamics, and more specifically, how she felt about it. [ 94 ] The use of these words does not change the content of AB’s testimony about the unfolding of events on which the charges are based.

She explained these same events again but added the feeling she had when they were taking place. She also specified that she did not express her feelings when she made her statement to the police because they did not question her about them. [87] From all this, the Court accepts that there is no contradiction likely to affect the credibility or reliability of AB’s testimony. Nor is there any exaggeration by AB that could undermine her credibility. [ 95 ] Applying this same reasoning, the Court concludes that there is no contradiction in regard to the use of the term [ translation ] "baffled" either.

The fact that AB told the police officers that she was [ translation ] “baffled” following the events in the living room and the fact that she specified before the Court that that term is not strong enough and that she added a reference to anger is not a contradiction. It is a clarification of how she felt. [ 96 ] The defence argues that there is a contradiction between AB’s statement to the police, in which she never stated that she had not consented to Mr. Rozon’s actions, and her testimony before the Court, during which she stated that she had not consented.

With that argument, the defence is insinuating that AB used these terms because she was influenced by an explanation that a police officer gave her, regarding the notion of consent, after she had finished giving her statement to the police. [ 97 ] This argument must be placed in the following context: AB's testimony about the facts on which the charges are based is consistent. She explained that she did not want to engage in “necking” with Mr. Rozon and that she verbally communicated her refusal by saying [ translation ] “no” or something similar. She did not want sexual contact with Mr. Rozon in the living room.

She expressed her refusal by struggling and perhaps, by her words. She did not want intercourse with Mr. Rozon the next morning. The intercourse began while she was sleeping. She therefore did not communicate any consent. When she woke up, she communicated her non-consent by the stiffness of her body and her passivity. All this reveals that, according to AB’s version of the facts, she did not consent to Mr. Rozon’s actions. That said, it is obvious from AB’s testimony that she did not understand the meaning of the legal notion of consent until the police officer explained it to her.

AB also testified that until she gave her statement to the police, she did not know that what had happened to her was a sexual assault because she did not fight until the end. [88] The fact that AB adapted the language she used after she learned the meaning of the word consent does not constitute a contradiction that undermines her credibility or reliability given that her description of events remained the same and that the absence of consent has always been evident. [ 98 ] The defence argues that when she made her statement to the police, AB described the situation in a misleading way.

She told the police officers that she was 19 and that she guessed Mr. Rozon was 28 years old, whereas he was 24 or 25. She described Mr. Rozon as a man of great stature when, according to the defence, he was not yet. The Court does not accept this argument. When she testified, AB explained that she did not know how old Mr. Rozon was and that she guessed he was 28. She also explained that she then considered Mr. Rozon a man of great stature because he was working on the “La Grande Virée” project and because he had a company called “Bottin Blanc” that did business with the radio station where she worked.

Furthermore, Mr. Rozon’s testimony confirms not only that he did business with the radio station where AB worked, but also that he had a significant relationship with the program director of that station. [89] His testimony also confirms the scope of the “La Grande Virée” project. Last, he admitted that when he was at the discotheque with AB, he met several people he knew and with whom he did business. [90] As a result, it is highly likely that AB, a CEGEP student, considered Mr. Rozon a man of great stature. Therefore, AB’s description of the situation is not misleading.

Rather, she presented her perception of the situation. [ 99 ] The Court will now address the defence’s third argument related to the reliability of AB’s testimony, that is, the implausibility of certain aspects of her testimony. The Court will group these implausibilities into two categories. [ 100 ] The first alleged implausibility is related to AB’s decision to remain on the premises, that is, to accept to sleep in a bedroom in the home, to remove her skirt, to lie in the bed and sleep there, after Mr. Rozon attempted unwanted sexual contact with her in the living room. According to the defence, had Mr.

Rozon actually assaulted AB, she would not have behaved this way. In her testimony, however, AB explained why she remained on the premises. She did not want to wake up her father and ask him to come and get her at that hour. There was no public transit and no taxi service or at least, if there were, it was not an option she considered because she did not take taxis. [91] That lack of options meant that she often slept over at people’s homes. [92] Furthermore, in her view the situation was settled: she had struggled and made her point. Mr.

Rozon had understood that [ translation ] “nothing was going to happen”. [93] AB’s explanation of her behaviour is credible and was not shaken by her cross-examination. The Court believes her testimony. [ 101 ] The second implausibility alleged is related to AB’s decision to [ translation ] “go along” with Mr. Rozon when she woke up the next morning and he was on top of her. AB explained her reaction on this matter when she testified. Her explanation is credible and was not shaken in cross-examination.

The Court believes it. [ 102 ] Furthermore, these two arguments related to the implausibility of certain parts of AB’s testimony have no basis in the evidence adduced. The Court must note that they are based on outdated myths and stereotypes. The Court notes in this respect that there is no firm rule on how victims of sexual assault behave.

[ 103 ] Last, the defence argued issues of credibility in connection with the timing of AB’s disclosure of events and her motivation. In this regard, AB explained very convincingly that she has been angry with herself for the past 40 years for [ translation ] “... allowing this to happen”, [94] that she feels guilty [95] and ashamed for allowing it to happen to her, for not standing up for herself. [96] [ 104 ] In 1998, when she learned that Mr.

Rozon had received a discharge in connection with a sexual assault, AB thought about disclosing it but did not do so and regretted it [ translation ] “very much” thereafter. [97] In 2017, AB heard about the wave of accusations against Mr. Rozon. She once again thought about reporting him, but she hesitated. She made her decision when she went home and saw her daughter, who was about the same age as she was at the time of the events. She confided in her daughter and then contacted the police to file a complaint against Mr.

Rozon. [98] [ 105 ] It is true that AB told the police officers that she wanted to provide them with material because Mr. Rozon had done a lot of harm in his life, and maybe it was time he paid for it. [99] However, that was not her primary motivation. Rather, AB was motivated by the desire to speak out, to disclose what happened to her, rather than by a desire for revenge or to make Mr. Rozon pay. Moreover, the Court was able to see that there was no animosity or desire for revenge in AB's testimony. Thus, the evidence adduced does not support the defence’s argument.

It is based only on long outdated myths and stereotypes on the behaviour expected of victims of sexual offences and on the supposed vengeful nature of women. [100] CD’s testimony [ 106 ] CD was AB’s neighbour, friend, and colleague at the time of the events. She knew that AB was going out on a date with Mr. Rozon. The next day, she asked AB about her evening. AB answered, [ translation ] “Well, I almost lost my panties” or [ translation ] “I lost my panties”.

After refreshing her memory, CD clarified that what AB said to her was more like: [ translation ] “I had to struggle, I lost my panties” or [ translation ] “I almost lost my panties”. To that, CD replied by saying, derisively, [ translation ] “moral of the story, don’t go for a car ride with Gilbert Rozon, you could lose your panties” or [ translation ] “you’ll lose your panties”. CD shared the story with other colleagues, who laughed. [ 107 ] The defence argues that AB’s statement to CB undermines the credibility or reliability of AB’S testimony for two reasons.

First, the fact that this statement is silent about the events of the following morning tends to suggest that they never happened. Second, the fact that AB did not react when CD laughed about the situation also tends to suggest that the events that took place were not so serious. [ 108 ] It should be recalled that AB does not remember speaking to CD after her evening with Mr. Rozon and therefore does not remember CD’s reaction. During her testimony, AB explained that it would not be [ translation ] “her style” to have talked about what happened with Mr. Rozon because she does not like to portray herself as weak.

Also, in 1998, when she talked about the events to colleagues at work, she did not tell them about the events that morning. The first time she described these events was when she decided to file a complaint with the police. [ 109 ] AB’s explanation, coupled with her feelings of anger, guilt, and shame, allows the Court to understand why she was silent about the events of the next morning when she described her evening to CD and why she did not react when CD made a joke that she shared with the others.

Once again, by presenting this argument, the defence ignores the evidence adduced, merely comparing AB’s behaviour to the behaviour expected from a victim. In other words, the defence is encouraging the Court to go down the slippery slope of myths and stereotypes. [ 110 ] That said, it is important to note that the Court cannot use AB’s statement to CD to confirm the credibility or reliability of AB’S testimony about the events on which the charges are based.

In general, a witness’s prior consistent statements are inadmissible into evidence, in particular because they lack probative value. [101] It is not because a witness repeats the same thing several times that it is necessarily true. Thus, the Court would err in law were it to use AB’s statement to CD as confirmatory evidence. [ 111 ] CD’s testimony therefore has limited impact on the issue of the reliability of AB’s testimony because AB does not remember speaking to CD or CD’s reaction. II. The defence's evidence [ 112 ] The Court will begin by summarizing Mr.

Rozon’s testimony and will then address the Crown’s arguments concerning that testimony. [ 113 ] Late in the summer of 1979, Mr. Rozon, who was 24 years old at the time, started working on the “La Grande Virée” project. It was a four-day event with about sixty shows in different venues. It was the first time he organized such an event, and he quickly felt [ translation ] “overwhelmed”. During that time, he was studying for his Bar exam and often on the road for work. [ 114 ] In mid-May 1980, his entire focus was the “La Grande Virée” project, which had to be ready for July 14, 1980.

The persons working on the site reached [ translation ] “the heights of madness”. Although Mr. Rozon had access to a residence about one kilometre from the site of “La Grande Virée”, he moved into a trailer on the site itself. He focused on preparing the event. He was so busy that he did not even have time to do interviews with any of the major media outlets, but one. [ 115 ] During that same time, Mr. Rozon had business relationships with the radio station where AB was working.

He had a [ translation ] “soft spot” for this radio station because the station’s program director came up with the name “La Grande Virée”. Between the fall of 1979 and the summer of 1980, Mr. Rozon went to the radio station three or four times. He went a few times again in the fall of 1980. [ 116 ] On one of those occasions, he met AB at the reception desk of the station and they had a laugh. He then saw her in the studio while doing an advertisement. He found her cute, and he thought she found him cute. It was probably him that asked her out for a drink, sometime in the fall of 1980. [ 117 ] Mr.

Rozon is sure that it was in the fall of 1980 that he spent an evening with AB, not before then. It is impossible that he had the time after mid-May 1980 to go to Saint-Sauveur to flirt, go to a discotheque, and spend the night with AB during the most [ translation ]

“busy” time of his life. From mid-May until the end of July 1980, he was entirely devoted to the “La Grande Virée” site. In August, he left for Paris to find artists for the following year. He returned in September and resumed work on the “La Grande Virée” project so as not to end up doing everything at the last minute. Thus, according to him, it was in September or October 1980 that he went to the radio station where AB was working. [ 118 ] On the day scheduled for their date, Mr. Rozon picked up AB at the radio station and they went to a discotheque. There he met several people he knew but focused on AB.

They were interested in each other. They left the discotheque at about 2:30 a.m. and went to Mr. Rozon’s car. He did not suggest to AB that they engage in “necking”. Rather, he invited AB for one last drink and she accepted. They went to a residence to which Mr. Rozon had access. [ 119 ] When they got to the residence, Mr. Rozon unlocked the door and ushered AB in. Mr. Rozon made a fire to create a romantic atmosphere. They sat down on the couch where Mr. Rozon caressed AB’s back. They kissed and slid onto the ground in front of the fireplace. When Mr.

Rozon tried to slide his hand up AB’s leg, under the skirt she was wearing, at knee height, AB froze immediately. Mr. Rozon was surprised and stopped. He asked AB why she was acting that way, but she would not say. These events lasted about three or four minutes. [ 120 ] AB’s reaction annoyed Mr. Rozon. He showed her to a bedroom for the night and told her that he would drive her home in the morning. His reaction seemed to surprise AB. Mr. Rozon went into the bedroom on the mezzanine, lay down and went to sleep.

The next morning, when he woke up at around 7:00 a.m., AB was straddling him and had intercourse with him. She took off her shirt but kept her skirt on. She seemed to be in a trance. He found it odd but let her be and said nothing, so as not to break the spell. He was consenting. After that event, Mr. Rozon took a shower and drove AB home. He did not talk to AB about what had just happened while they were driving or when he saw her again afterwards at the radio station. [ 121 ] During arguments, the Crown attacked the credibility of Mr.

Rozon’s testimony by attracting the Court’s attention to the contradiction and implausibilities it contains. The Crown also noted that Mr. Rozon’s manner of testifying affects the credibility of his story. [ 122 ] The Court will begin the analysis of Mr. Rozon’s testimony by addressing the two contradictions identified by the Crown. First, the Crown noted that in his examination in chief when Mr. Rozon described the events that took place in the living room, he never mentioned that AB said, [ translation ] “no”, in addition to freezing.

It was only during his cross-examination that he mentioned for the first time that AB may have said no when he tried to put his hand up her skirt. [102] In the Crown’s view, that is a key element in Mr. Rozon’s version of the facts, and the contradiction on this point is significant. However, the Crown did not ask Mr. Rozon any questions about this contradiction. The Court cannot therefore determine whether it is an actual contradiction or merely an omission. [ 123 ] The second contradiction raised by the Crown relates to Mr.

Rozon’s testimony with respect to the possibility that AB could have taken a taxi to leave the residence rather than staying overnight. In the Court’s view, Mr. Rozon’s testimony on this matter is not contradictory. Mr. Rozon testified consistently that he showed AB a bedroom where she could sleep because he was annoyed by her reaction. There was no mention of the possibility of driving AB home or calling a taxi. Mr. Rozon’s cross-examination did not undermine his testimony on this matter. [ 124 ] When Mr.

Rozon referred to the possibility of AB taking a taxi, he was commenting on AB’s testimony and noting why, according to him, it was implausible. His testimony establishes that he is convinced that if he had been an aggressor, AB would not have slept at his house. [103] This part of Mr. Rozon’s testimony leads to the observation that his reasoning with respect to the notion of “consent” is tainted by myths and stereotypes, but it does not establish a contradiction. [ 125 ] The Court will now address five implausibilities, which, according to the Crown, arise from Mr. Rozon’s testimony.

First, the Crown argues that it is paradoxical that Mr. Rozon believed AB when she named the discotheque where they went for a drink if, in fact, she was lying and falsely accusing him. The Court does not agree with that statement. Mr. Rozon may not remember exactly where they went for a drink but still agree, after hearing AB testify about it, that she is probably right or that the testimony rekindles memories. In fact, that was the very essence of Mr. Rozon’s testimony on the matter. [ 126 ] Second, the Crown noted that Mr.

Rozon’s statement that he did not leave the “La Grande Virée” site between mid-June and mid- July is implausible. Moreover, in cross-examination, Mr. Rozon limited the scope of his statement, by adding that he might have left the site to get food, without providing further detail. The Court considers that statement to be a reflection of a tendency to exaggerate and, as explained below, it is an element that the Court must take into account when it assess the credibility and reliability of Mr. Rozon’s testimony. [ 127 ] Furthermore, Mr.

Rozon’s assertion that he did not leave the “La Grande Virée” site establishes that his testimony is more affirmative than his memories allow him to be. This assertion is not the only one that seems overly affirmative. His testimony with respect to the time they left the discotheque is another example of such an assertion subsequently tempered. It is equally hard to believe that after 40 years, Mr. Rozon remembers a detail as trivial as the fact that he unlocked the door to the residence when they arrived at the premises. There is no doubt that Mr.

Rozon’s testimony is more affirmative than it ought to be, given the time that has elapsed since the events. This is another element that the Court must take into account when assessing the credibility and reliability of Mr. Rozon’s testimony. [ 128 ] Third, the Crown alleges that Mr. Rozon’s reaction to AB’s mere contraction of her thigh muscle is implausible. Up to that point, Mr. Rozon describes himself as chivalrous, interested, looking to get to know AB, and wanting to have sexual relations with her.

It is therefore inconceivable that he would react by sending AB to a bedroom without even asking her any questions, especially since he acknowledges that AB’s reaction may have had an innocuous explanation. The change in Mr. Rozon’s behaviour may indeed seem implausible. However, it is not because the behaviour does not meet expectations that it is automatically implausible. Mr. Rozon explained his change of behaviour, and the cross-examination did not shake his explanation.

The Court reiterates that a decision must always be rendered on the basis of the evidence and not on the basis of assumptions about the expected behaviour of a person in a given situation. [104]

[ 129 ] Fourth, the Crown notes that it is implausible that AB, who stiffened at the mere touch of her thigh, would get up a few hours later, go to Mr. Rozon’s room, and straddle him while he was sleeping. The Court agrees that such a change in AB’s behaviour may appear implausible. As previously expressed, however, it is not because the behaviour adopted by AB in Mr. Rozon’s story does not meet our expectations that Mr. Rozon’s story is false. [ 130 ] Fifth, the Crown alleges that Mr. Rozon’s story defies logic because it is modelled on that of AB, except for the incriminating parts.

Such situations, however, often arise in sexual assault cases where the victim’s story and that of the accused are identical up until the moment of the alleged assault. The Crown also argues that Mr. Rozon’s story is implausible because it is the mirror image of AB’s story, except that the roles are reversed: the aggressor in one story is the victim in the other. While this may seem unusual, it does not make Mr. Rozon’s testimony implausible. In this respect, the Court notes that the Crown did not shake Mr. Rozon’s testimony in cross- examination. [ 131 ] Last, the Crown argues that Mr.

Rozon’s manner of testifying, which seeks to enhance his testimony with elements that are otherwise inadmissible in evidence while at the same time denigrating AB's testimony, weakens his story’s credibility. For example, Mr. Rozon stated that he found AB's behaviour “weird” but added, to support his assertion in this regard, that he discussed it with his friends at the time. As previously mentioned, the Court noted that Mr. Rozon sometimes exaggerated his remarks to support his testimony. The Court must consider this element when assessing the credibility and reliability of Mr. Rozon’s testimony. III.

The application of the principles set out in W.(D.) [ 132 ] The Crown has the burden of proving beyond a reasonable doubt that Mr. Rozon committed the offences alleged against him. The Crown’s burden is heavy. The standard of proof beyond a reasonable doubt raises the Crown’s burden well beyond the balance of probabilities to virtual certainty. [ 133 ] Mr. Rozon benefits from the presumption of innocence, which is a constitutionally protected principle.

As a result, he bears no burden of proof, and he is entitled to the benefit of reasonable doubt, that is, a determination of fact that is most favourable to him in light of all the evidence adduced. [ 134 ] It is true that the parties are not on a level playing field before the Court. It is important to note, however, that the inequality is the result of the application of the principle of the presumption of innocence, which arises from the Crown’s obligation to establish, beyond a reasonable doubt, Mr.

Rozon’s guilt, and not from a rule that discriminates against victims of sexual assault. [ 135 ] In this case, the Court is faced with contradictory versions. AB’s testimony describes indecent assault and rape. Mr. Rozon’s testimony describes touching that stopped when AB stiffened and subsequent intercourse, initiated by AB while he was sleeping. In the face of contradictory versions, the Court cannot limit itself to accepting the most plausible or truthful version.

It must apply the test from W.(D.) , which is intended to explicitly guarantee the application of the standard of proof beyond a reasonable doubt in the face of contradictory versions. To proceed otherwise may in fact obscure the notion of reasonable doubt and the presumption of innocence and transform the criminal trial into a credibility contest, which it is not. [ 136 ] The two first steps in the analysis set out in W.(D.) require the Court to focus on Mr. Rozon’s testimony . First, the Court must decide whether it believes Mr. Rozon’s testimony. If it does, the Court must acquit Mr. Rozon.

Second, the Court must decide if Mr. Rozon’s testimony raises a reasonable doubt as to his guilt. If so, the Court must acquit Mr. Rozon. [ 137 ] For the purposes of these two first steps, the analysis of Mr. Rozon’s testimony is not done in a vacuum. It requires the Court to take into account all of the evidence, which means, in this case, AB’s testimony. [ 138 ] The analysis of Mr. Rozon’s testimony reveals that it is plausible and contains no contradictions that could affect its credibility or reliability. The Crown’s cross-examination simply did not shake his version of the facts.

It did reveal, however, that Mr. Rozon sometimes exaggerated to support his testimony and that he was more affirmative than his memory allows him to be. These two elements affect his testimony’s credibility. [ 139 ] The analysis of AB’s testimony establishes that she is credible: AB’s testimony was honest, sincere, unbiased, and without exaggeration. That analysis, however, leads to the observation that there are some inaccuracies in her testimony. Several of them relate to peripheral elements; however, some are more difficult to explain, as was discussed above.

In addition, AB readily admitted the limits of her recollection, particularly with respect to the events of the next morning. These inaccuracies and AB’s description of the quality of her memories affect the reliability of her testimony. [ 140 ] In light of the foregoing, the Court cannot conclude that it believes Mr. Rozon’s version of the facts, and therefore it cannot acquit him at this first step of the analysis set out in W.(D.) . However, the analysis of Mr. Rozon’s testimony, in light of all the evidence, including AB’s testimony, does not reveal sufficiently serious elements for the Court to set it aside.

In other words, the Court cannot deprive Mr. Rozon of reasonable doubt on the issue of credibility, even if his version appears less plausible than that of AB. [ 141 ] Therefore, even if the Court does not believe Mr. Rozon’s version of the facts, it nonetheless raises a reasonable doubt. To be clear, that reasonable doubt arises both from the intrinsic qualities of Mr. Rozon’s testimony and the previously identified weaknesses with respect to the reliability of AB’s testimony. Given the existence of this reasonable doubt, Mr.

Rozon must be acquitted of the charges against him. [ 142 ] In conclusion, the Court would like to acknowledge the courage displayed by AB in testifying. The Court notes that the verdict of acquittal does not mean that the alleged incidents did not happen. Rather, it signifies that there remains, in the Court’s view, a reasonable doubt with respect to Mr. Rozon’s guilt because the Crown did not discharge its burden.

CONCLUSION For all these reasons, the Court acquits Gilbert Rozon on both counts. (

s) Mélanie Hébert, J.C.Q. __________________________________ MÉLANIE HÉBERT, J.C.Q. Mtre Bruno Ménard Counsel for the prosecutrix Director of Criminal and Penal Prosecutions Mtre Pierre Poupart, Ad.E . Les avocats Poupart, Touma Counsel for the accused Gilbert Rozon and Mtre Isabel J. Schurman, Ad. E.

Schurman Grenier Strapatsas Counsel for the accused Gilbert Rozon Hearing dates: October 13, 2020, October 14, 2020, October 15, 2020, November 6, 2020, November 19, 2020. [1] Because the Court rendered an order directing that any information that could identify the victim or a witness called by the prosecution shall not be published in any document or broadcast or transmitted in any way, the victim will be identified as AB, and the witness called by the prosecution as CD, even if those are not their initials. [8] LSJPA-0914 , 2009 QCCA 839 .