r v. A. E., 2016 QCCQ 2822

R. c. A.E. 2016 QCCQ 2822 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF LAVAL LOCALITY OF LAVAL "Chambre criminelle" No: 540-01-058600-134 DATE: April 8, 2016 ______________________________________________________________________ UNDER THE PRESIDENCY OF: HONORABLE JEAN-JACQUES GAGNÉ, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutor v. A. E.

Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ NOTE: A non-disclosure order has been issued by the Court concerning the identification of the victim. I NTRODUCTION [ 1 ] The Crown claims the accused committed the indictable offences provided by sections 151 , 152 , 153 (1) a), 271 (1)

a) and 267

a) of the Criminal Code . CONTEXT [ 2 ] The plaintiff is the daughter of the accused’s former spouse.

The accused and the mother of the plaintiff were living as a couple from 1995 to 2009 . [ 3 ] The plaintiff is 6 years old at the time this relationship begins . [ 4 ] The Crown alleges the accused had sexual contact and intercourse with the plaintiff when she was between 6 and 18 years old . [ 5 ] The Crown claims the accused sexually assaulted the plaintiff during this period and after she turned 18 . [ 6 ] The Crown claims the accused was in a position of authority during the teenage years of the plaintiff . [ 7 ] The Crown also accuses the defendant of having committed acts of violence against the plaintiff, in particular disciplining her with a belt . [ 8 ] The Crown called as witnesses the plaintiff, her mother and a childhood friend, in whom the plaintiff allegedly confided.

The confidences relate to the alleged acts of the accused towards the plaintiff. The Crown requests the Court to consider this testimony to corroborate the plaintiff’s testimony . [ 9 ] The accused admitted having sex with the plaintiff. He claims that the relationship was consensual and that it occurred after the plaintiff had reached adulthood . [ 10 ] According to the accused, the plaintiff invented that he had sexual contact with her when she was underage.

This invention was intended to “save face” in front of her mother, who was informed of the relationship that her daughter had with the accused when they all were living under the same roof . [ 11 ] The accused denies having sexual contact with the plaintiff as she was a child and a teenager . [ 12 ] As to the accusation of assault with a weapon (belt), the accused admits hitting the plaintiff with a belt for punishment purposes. He claims he was acting at the request of the mother and argues that he should receive immunity under

section 43 of the Criminal Code .

[ 13 ] The defence also argues that the accused was not in a position of authority or trust towards the plaintiff when she was a teenager . THE ISSUES [ 14 ] The analysis of the credibility of the testimony given by the accused and by the plaintiff is at the heart of the dispute . [ 15 ] The Court must also answer the following questions : 1) The testimony of N. S. and the allegations of recent fabrication:

a) Can the Court accept the prior consistent statement to be used to corroborate the testimony of the plaintiff, as requested by the prosecutor?

b) If not, in what purpose can this statement be used? 2) Was the accused in a position of authority or trust towards the plaintiff when she was a teenager? 3) Do the circumstances surrounding the belting allow the accused to seek immunity under

section 43 of the Criminal Code ? FACTS

A) Testimony of N. S. (friend) [ 16 ] In short, she said the following: - She met the plaintiff in high school and they became friends . - In summer 2003, the plaintiff confided in her that she had sex with her “step father”. - She mentioned some details, including that the plaintiff had been bleeding after having sex with her stepfather . - She and the plaintiff reconnected recently via Facebook . - Recently, the plaintiff called her concerning what happened with her step dad .

B) The testimony of G. A. (plaintiff’s mother) [ 17 ] In short, she said the following: - She met the accused at work in 1994-1995. - A friendship developed into a relationship in 1995. - The accused and her moved together with her two children (Y and Z). - She had shared custody. The children spent a week with their father and a week with her and the accused . - The accused ended up unemployed and took care of children every day . - A child (

X) was born of her relationship with the accused. X was born on [...], 2002 . - She describes her marital relationship with the accused as complex and weird . - The accused was disciplining the children. - In 2011, she was informed that her daughter (the plaintiff) had sex with the accused .

C) Testimony of (Z (1989-[...])) [ 18 ] In short, she says:

- The accused was her mother’s boyfriend. - She was sexually assaulted by the accused when she was young. - When she was 6 years old the accused brought her into a room and slid his finger to her private parts (vagina, bump). - Later in her childhood the accused “caressed her butt everywhere” many times. - The accused was physically abusing her. The accused was hitting her with a belt and with his boots. - The belting was usually when she was not respectful to him. - The sexual touching happened in all the room all the house and it evolved, adding masturbation of the accused to the caresses.

The accused was “ coming on me ” . - She was 12 when the first vaginal penetration happened. This occurred when her mother gave birth to her brother X, while she was at the hospital. The accused put his penis inside her vagina. The accused was on top of her.

She described the position as being the missionary position. - Sexual relations continued and the accused began viewing pornographic material. - The accused showed her how to perform fellation. - The accused was showing pornography doing it (fellation). - Showing gesture to show how to do blow job. - The accused allegedly attempted an anal penetration that failed. - Sexual relations were frequent and their frequency diminished around the age of 18. - They continued to have sex after the age of 18.

She had a complete sexual relation with the accused after the separation of the accused and her mother . - She said she resisted a few times, sometimes with success, others, in vain. - It happened several times during these years that the accused “was rubbing himself” on her and ejaculated without penetrating. - He told her that he was a victim of sexual touching in his youth. - The accused told her that she should not talk about their relationship to her mother, to avoid causing harm to the family. - She claims she talked about this to two people, including N.

S.. - The accused allegedly never used a condom. - As far as she remembers, the accused always ejaculated outside of her. - She thought she will keep this secret for herself, but she decided to press charges when she returned from a trip to Central America. - She said she was often afraid of the accused. She was not scared all the time. - She said she was never afraid to be kidnapped by the accused.

Regarding the fact that she said the opposite at the preliminary inquiry, she said during the trial that she didn’t have such fear and that was a mistake on his part. - She denied having a "love relationship" with the accused. - Faced with written documents, videos and pictures of her interacting with the accused, she said she was not always afraid of the accused. - Asked to comment on images, text, videos, audios, in which s he seems intimate and happy with the accused, she explains that it is the abused girl in her who speaks and behaves that way.

She testified that she always thought she would "bring that secret with me in my grave”.

D) The testimony of the accused [ 19 ] In short, he says: - He pleaded not guilty to all counts. - Sexual relations began in spring 2008.

- There were no sexual relations between him and the plaintiff between 1996 and 2008. - He said he used a belt to “discipline” her. - He said he had never been in love with the plaintiff and that she was an “easy child” and was happy. - He suffered an aneurysm in 2010. - He has short-term memory problems. - The birth of his son was a very important moment for him. - He was attacked in 2011 by people who accused him of assaulting the plaintiff. - He ended the relationship in 2010. - He said he had a “friendship” with the plaintiff since he has known her. - He explains that it is the mother of the plaintiff who asked him to hit children with a belt. - He had several photos of him and the plaintiff (nudity), that he erased. - He “disciplined” the plaintiff with a belt when she was obscene, insulting… - He began to have sexual desires gradually after November 2007. - He doesn’t consider the plaintiff as his stepdaughter.

He considers her as a friend. - When he was living with the plaintiff and her mother, he could have sex with the plaintiff up to seven times a day in the house, and this, without the mother knowing.

These sexual relations took place from 2008 to Christmas 2010. - He was not afraid she would tell it to her mother. - The last time they had sex was during Christmas 2010. - He specified that he ejaculates almost always outside of his partners. - He never talked with the plaintiff about the sexual nature of their relationship. - He said he was an affectionate person with the plaintiff and that he practised several sports with her. - He said he stopped hitting the plaintiff with a belt around 2005. ANALYSIS Issues 1) The testimony of N. S. and allegations of recent fabrication :

a) Can the Court use the prior consistent statement to corroborate the testimony of the plaintiff, as requested by the Crown counsel? [ 20 ] This type of statement cannot be used to corroborate or confirm a testimony. [ 21 ] I do not consider that the prior statement of Ms. S. could corroborate the testimony of the plaintiff . [1]

b) If not, for what purpose can this statement be used? [ 22 ] Prior statements from the plaintiff could serve to rebut suggestions of recent fabrication. [ 23 ] It cannot be considered for the truth of its content. [ 24 ] In general, prior consistent statements are inadmissible. [ 25 ] However, there is an exception to this rule of exclusion. [ 26 ] A prior consistent statement is admissible to rebut a suggestion of recent fabrication of parts of the testimony, as it is the case

over here . [2] [ 27 ] The prior consistent statements have probative value when they can demonstrate that the witness gave a version of the events before they even had a reason to invent them . [ 28 ] This statement has probative value only to establish that the plaintiff has not changed her story because she had a new reason to invent a story . [3] [ 29 ] What the plaintiff revealed to Ms. S. will be considered for this purpose. [ 30 ] The reliability of Ms.

S. was never doubted or questioned. 2) Was the accused in a position of trust or authority towards the plaintiff when she was a teenager? [ 31 ] The Court believes it is appropriate to rule on this matter considering that charges are laid under

section 153 of the Criminal Code and that the accused claims he was not in a position of authority. [ 32 ] The evidence, which was not contradicted, shows that the accused and the plaintiff lived together at least one week out of two when the plaintiff was aged between 6 and 18. [ 33 ] The factual circumstances relevant to the analysis of the situation of “authority” and trust in this matter are: - The age difference between the plaintiff and the accused is 18 years; - The accused is the spouse of the mother of the plaintiff; - The plaintiff is 6 years old when the cohabitation starts; - The relationship between the accused and the plaintiff develops in a family context in which the accused watches over, supervises and educates the plaintiff; - Over the years, the accused becomes the biological father of a child (

X) whose mother is the mother of the plaintiff. They will grow together; - The accused discipline the plaintiff using force (we will return to that later). [ 34 ] The degree of supervision, influence and persuasion exercised by the accused on the plaintiff is such that it is obvious he was in a position of “authority” and “trust” during the teenage years of the plaintiff. [ 35 ] There is no biological relationship between the accused and the plaintiff. The absence of a biological relationship is not conclusive in itself. The status of the accused in relation to the plaintiff is unequivocal. 3) Do the circumstances surrounding the belting allow the accused to seek immunity under

Section 43 of the Criminal Code ? [ 36 ]

Section 43 of the Criminal Code exempts from criminal sanction the use of a light force for the purpose of educating or disciplining a child. [ 37 ] This

section allows the use of a reasonable force. [ 38 ] The accused admits he hit the plaintiff with a belt. According to him, he acted at the request of the mother. Whether he acted at the request of the mother or on its own initiative, the use of a belt is unreasonable . [4] [ 39 ] The admission of the accused, the comments made by the plaintiff and her mother to the effect that the accused hit the plaintiff several times with a belt, and the circumstances of these “disciplinary actions” exclude the accused from the protection provided under

Section 43 of the Criminal Code . This type of punishment is physically and psychologically harmful. In my opinion, it is a degrading conduct. [ 40 ] When questioned about this, the accused’s counsel recognizes it is paradoxical to claim that the accused was not in a position authority and at the same time to seek the immunity provided under

Section 43 of the Criminal Code . No need to say more about this. ANALYSIS OF THE CREDIBILITY

A) The testimony of the accused [ 41 ] The focus is now on the evidence of the accused. I have to regard the evidence as a whole. It is impossible to consider an accused’s evidence without a contextual backdrop. I believe only certain parts of the accused’s evidence. It is not every part of the accused’s evidence that, if believed, entitles him to an acquittal, but only the part that exculpates the conduct to which the instruction applied. [5]

[ 42 ] Credibility is the issue of this trial. I am aware that the behavior of the accused during his testimony has a limited value, since he can be affected by several things, including stress and his cultural level, for example. [ 43 ] He testifies in a manner that is uncertain, fluctuating and floating. Sometimes he is suspicious, sometimes defying the Crown prosecutor.

These observations still have a limited value. [ 44 ] The accused contradicts himself a few times. [ 45 ] Some of these contradictions may seem trivial at first, but they are very important when considered cumulatively and in the overall context of his story. He does not testify honestly and he provides irrelevant details. For example, he makes a mistake about when he received the plaintiff’s letters, he mixes up the return from the trips to Cuba and to Dallas, he contradicts himself on the role he held with the plaintiff… [ 46 ] The testimony of the accused is not credible. I do not believe it.

His version of the facts in relation to the alleged offences do not have the ring of truth. [ 47 ] For example, the accused said during the examination that he has always considered the plaintiff as a friend, even when she was 6 years old, despite his status as the spouse of the mother. [ 48 ] It seems to me so obvious that this was not the case.

Moreover, when he was questioned by the police about it, he described himself as her “step father”. [ 49 ] When asked to comment on the fact that he had sex with the sister (adult) of his son, he insists on the fact that he does not consider the plaintiff as the sister of his son. It is important for him to explain that she is only his half-sister.

The accused insists that the plaintiff is a friend, that she is his son’s half-sister and that he never considered her as his daughter. [ 50 ] On the other hand, the evidence as a whole shows that, even if the accused is not the biological father of the plaintiff, his status, his role, his authority, his position of trust in relation to her demonstrate that he is much more significant for her that he is willing to admit. [ 51 ] Why deny something so obvious, that he was an authority figure? Why call her a friend when he describes himself to the police as the “step father”?

Why insist on the fact that she was a friend when he disciplined her with a belt? [ 52 ] Of course, the accused has no burden, but why is he unable to describe how his relationship with the plaintiff went from platonic / friendly to sexual when she turned 18? [ 53 ] According to the accused, the plaintiff began to dance in a sensual way when she came back from a trip to Cuba… According to him, this is what explains the appearance of his sexual desire for the plaintiff. The Court does not believe that explanation. [ 54 ] Curiously, the defendant is able to give many details about the day of the birth of his son X.

He said he remembers the day, he remembers that he worked in the morning, he remembers that he didn’t have sexual contact with the plaintiff. For him the birth of his son is a very important event.

Although he is able to give many details of this day, he is unable to give the name of the hospital where his son was born. [ 55 ] The accused is unable to explain how his relationship with the plaintiff would have gone from friendly to sentimental, other than referring to her dancing. [ 56 ] How can their relationship have changed so quickly after the plaintiff reached adulthood, and this, only three or four months after her birthday? [ 57 ] I believe the accused when he says he had sexual relations with the plaintiff after her 18 th birthday. I am convinced that he was doing so, as well, before she turned 18.

I also believe him when he says they watched pornography, and that they were engaged in activities in the family home while the rest of the family was upstairs. [ 58 ] He gives a lot of details that I consider secondary. Such as the fact that he prefers to ejaculate outside rather than inside… That he remembers that the first time it was outside, because he does not like inside… [ 59 ] The accused says he never feared that the plaintiff would tell her mother. The Court is not surprised that the accused was not afraid of that.

Indeed, the plaintiff’s silence over the years made him confident. [ 60 ] I do not believe his version of the fact in relation to the alleged offences.

B) The testimony of the plaintiff (Z [1989-[...]]) [ 61 ] Most of the testimony of the plaintiff is summarized in a previous chapter. [ 62 ] The accused’s counsel clearly stated that the victim has made false accusations in order to “save face” in front of her mother. [ 63 ] The allegations that the plaintiff deliberately fabricated the sexual relations she had with the accused when she was a minor in order to “save face” in front of her mother is pure conjecture. Nothing supports this idea. I exclude this hypothetical scenario that the evidence does not support.

[ 64 ] The gestures of a sexual nature she describes allegedly started when she was very young, and the full sexual intercourse started at age 12. Often time, people who have been victims in their youth are fragile, impressionable and vulnerable, and denounce their aggressor only once they have reached adulthood. [ 65 ] The testimonies given in adulthood should be evaluated in light of the criteria applicable to adults.

It is different when they are dealing with events that occurred during childhood . [6] [ 66 ] Of course, some memories are imprecise and there are gray areas in the testimony of the plaintiff, and this seems normal to me after so many years. [ 67 ] There is hesitation on some peripheral, even marginal, points. [ 68 ] The plaintiff acknowledges she had happy moments with the accused. The evidence shows that the plaintiff repeatedly communicated with the accused after the age of 18. The plaintiff appears happy and serene on several pictures showing her with the accused and other family members.

Letters, written by her, in which she expresses feelings regarding the accused are filed as exhibit. [ 69 ] The defence claims that the facts described above are inconsistent with the assaults of which she claims she was a victim. [ 70 ] Following this reasoning would mean that the plaintiff should have been continuously in distress for all those years. [ 71 ] When a girl is forced out of her childhood, we can’t expect her to be always rational and consistent. [ 72 ] The testimony of the plaintiff contains some contradictions and inaccuracies on minor aspects as I mentioned earlier.

She mentioned at the preliminary hearing that she was afraid to be “kidnapped” by the accused. During the trial, she said that was not the case. [ 73 ] Faced with the fact that she wrote letters to the accused, which had a friendly tone and in which no fear transpires, she explained that it is the “abused girl in her” who behaved this way. [ 74 ] In a moment of impatience, the plaintiff blasphemed during her testimony. It is not enough to deprive her of credibility. The blasphemy was uttered in a difficult moment. [ 75 ] I give credence to the testimony of the victim. I believe her.

It is normal that after several years some details escape to a witness. She testified with sincerity, without hesitation. Her memory is reliable, she is credible. [ 76 ] It is an adult who testified. An adult whose childhood would have been troubled. She denies inventing the relations she had as a child to “save face” in front of her mother, who was informed of the intimate relationship between her (then adult) and the accused. [ 77 ] She denies fabricating and inventing the story of what happened when she was a minor. The credible and reliable testimony of Ms.

S. supports this. [ 78 ] The context in which she denounced the situation to the police is entirely credible. She said she confided in her boyfriend in 2011, even though she believed she would “bring this secret with her in the grave”. Over time, much of her story remains the same, devoid of significant contradictions.

Her testimony is firm, resolute and trustworthy. [ 79 ] The reasons given for her jovial attitude (on the videos, the images, the letters of her written during her teenage years and young adulthood) are reasonable and credible. [ 80 ] The plaintiff can definitely have experienced moments of joy and happiness with the accused, and this, despite being a victim. [ 81 ] It is reasonable to think that a 12-year-old child who has a sexual relationship with her mother’s spouse (who occasionally disciplines her with a belt) can have trouble being consistent in certain areas of her life.

She spent much of her life with the accused. She was attached to him. To some extent, I think she had feelings for him despite the unhealthy situation she describes.

CONCLUSION [ 82 ] I now turn to my conclusion. [ 83 ] Since the accused testified, the principles set out in the decision of the Supreme Court of Canada in R. v. (W.D.) [7] apply. [ 84 ] I must acquit the accused if I believe his evidence. [ 85 ] For the reasons mentioned previously, I do not believe the accused. [ 86 ] I do not believe his evidence and I am not left with a reasonable doubt by it. [ 87 ] On the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt, by that evidence, of the guilt of the accused, except concerning the sexual assaults that allegedly happened when the plaintiff was adult, so after November 16, 2007. [ 88 ] Concerning this period (after November 2007), the lack of information, details on the circumstances preceding and surrounding the sexual relations, and the lack of expertise that could inform the Court do raise a doubt in my mind. [ 89 ] All alleged incidents which occurred between 1996 and 2007 are both a sexual assault contrary to

Section 271 of the Criminal

Code and touching within the meaning of

Section 151 and 153 of the Criminal Code . They cannot be distinguished chronologically. [ 90 ] Therefore, the accused is found guilty on counts 1, 2, 3 and 5 and the Court grants a conditional stay of proceedings on count 4 of sexual assault. __________________________________ JEAN-JACQUES GAGNÉ, J.C.Q. Me Brenda Toucado Attorney of the DPCP Me Charles Doucet Attorney of the accused Date of hearing: April 8, 2016