2019 QCCQ 5279, 2019 QCCQ 5279

R. c. Lapierre 2019 QCCQ 5279 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF BEDFORD LOCALITY OF COWANSVILLE “Criminal and penal division” No.: 455-01-016224-184 DATE: August 23, 2019 ______________________________________________________________________ PRESIDING: THE HONOURABLE SERGE CHAMPOUX, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v.

JOEY LAPIERRE Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Joey Lapierre was tried on the following charges: 1. Le ou vers le 13 juin 2018, à Mansonville, district de Bedford, a, étant en liberté sur son engagement contracté devant un juge ou un juge de paix, dans le(

s) dossier(s) 455-01-016185-187, omis de s’y conformer alors qu’il y était tenu, soit : ne pas me trouver ou aller à l’adresse suivante : [...], Mansonville, on streets Joseph Blanchet and Vale Perkins between Mill Road, on Mancon Street and Mainstreet (243) between and [...], commettant ainsi l’acte criminel prévu à l’ article 145(3)

a) du Code criminel . 2. Le ou vers le 13 juin 2018, à Mansonville, district de Bedford, a, étant en liberté sur son engagement contracté devant un juge ou un juge de paix, dans le(

s) dossier(s) 455-01-016185-187, omis de s’y conformer alors qu’il y était tenu, soit : ne pas communiquer ou tenter de communiquer de quelque façon que ce soit avec Jennifer Teneyck, commettant ainsi l’acte criminel prévu à l’ article 145(3)

a) du Code criminel . (Integral reproduction) [ 2 ] I add that the wording above, especially with respect to the first count, is difficult to understand, but the defence is not that it is so deficient that it presents a bar to presenting a valid defence. [ 3 ] A FEW FACTS [ 4 ] I accept that for a number of years, the accused and Jennifer Teneyck had a relationship and that two children were born from this union. Ms. Teneyck has custody of the children, but the accused has access to them. [ 5 ] On June 13, 2018, Jennifer Teneyck was going home in her vehicle.

Her children were with her and she was approaching her residence. She claims to have seen the accused in front of the Mansonville firehouse. At the time, Joey Lapierre was at the wheel of an imposing truck used to collect the trash. According to Jennifer Teneyck, the accused then gave her the finger. [ 6 ] A few minutes later, she arrived home, quickly put the children to bed and called 911 to report the offences committed by the accused. Indeed, Joey Lapierre was subject to conditions for being at large that restricted his being within a certain perimeter.

The municipal firehouse is within that perimeter in which the accused is prohibited from being and furthermore, he appears to have communicated with Ms. Teneyck, directing an obscene gesture at her. [ 7 ] The call to 911 started at 7:13 p.m. Jennifer Teneyck stated that only a few minutes had passed between the moment she saw Joey Lapierre and her call to emergency services. [ 8 ] Police officer David Keeney also testified. He confirmed that he arrested the accused on June 14 at 9:15 a.m. The arrest occurred at the accused’s place of employment. The accused was then driven to the Granby courthouse.

He was detained until June 15, when he was released following his bail hearing. [ 9 ] At trial, Officer Keeney reported evidence of a brief statement made by Joey Lapierre, according to which he admitted crossing paths with the victim’s vehicle and recognizing her.

He argued, however, that the vehicles crossed paths in front of the Uniprix pharmacy, outside the perimeter prohibited under the conditions that applied to the accused on June 13. [ 10 ] The officer did not report that Joey Lapierre had otherwise communicated with Jennifer Teneyck at the time because the accused said that he recognized the vehicle only once it had passed by him.

[ 11 ] The accused also testified. He confirmed that he crossed paths with Jennifer Teneyck’s vehicle in front of the pharmacy in question. [1] However, he denies that he could have given her the finger because he had to keep both hands on the steering wheel at all times or alternatively, keep one hand on the steering wheel and one hand on the gear lever.

He explained more specifically [2] that the truck he drives does not have good power steering and it was climbing a hill at that moment, which entirely prevented him from having a free hand to give her the finger, as is alleged. [ 12 ] He filed several versions of a map establishing the distances between his home and the location where he allegedly committed the offence to demonstrate that it would have been impossible to be in Mansonville at about 7 p.m. and then in Knowlton, at the home of his mother and stepfather, at around 7:15 p.m., after travelling the distance between these two points, including passing a construction site twice, while at the wheel of the heavy vehicle he was driving. [ 13 ] On this matter, he filed images from a surveillance camera, showed the state of a transaction on his cellular phone, and had his stepfather testify, among other things. [ 14 ] ANALYSIS AND DECISION [ 15 ] The accused is charged with two counts.

The first concerns a perimeter within which his ex-spouse has alleged he was seen at about 7 p.m. The second concerns

an act of communication that happened at the same time: giving the finger. [ 16 ] The evidence for the prosecution and the defence is contradictory in regard to the events that occurred. It is therefore necessary to analyse the evidence in accordance with the principles developed by the Supreme Court of Canada in R. v. W.(D.) , [3] which presents the following test to apply. 1. If the version of the accused and his witnesses is believed, and that version is exculpatory, the accused must be acquitted. 2.

Even if this evidence is not entirely accepted but nevertheless raises a reasonable doubt, the accused must once again be acquitted. 3. It is only if the two first steps failed to put an end to the analysis that there is cause to see whether the evidence as a whole has been made beyond a reasonable doubt.

It is only then that the accused may be convicted. [ 17 ] The first question that must be answered is whether the Court believes the version of the accused. [ 18 ] The first part of the accused’s testimony and the evidence he adduced is intended to impugn the time at which the vehicles crossed paths. [ 19 ] Indeed, the Court reiterates that this evidence, overall, appears very strongly, even unwaveringly, to indicate that the two vehicles, the accused’s heavy vehicle and the victim’s SUV, did cross paths on the evening of June 13.

The accused said so to Officer Keeney, whose testimony was not questioned on this subject, and Joey Lapierre personally confirmed it. He claims, however, that he did not communicate with Jennifer Teneyck in any way. We will revisit this. [ 20 ] The fact that the vehicles crossed paths is therefore established.

It is the location where they crossed paths that is contested. [ 21 ] The evidence adduced by Joey Lapierre as to his location at about 7 p.m., a location much nearer Knowlton than Mansonville, is nevertheless credible, up to a point. [ 22 ] For example, the testimony of David Lahue, the stepfather, who explained and presented the images from a surveillance camera appears sincere.

The time indicated by the camera may be questionable, that is, it is more difficult to believe in its precision, but whatever the case may be, the witness also stated that at 7:18 p.m. he used his cellular telephone to text the accused’s mother and noted that Joey Lapierre was at the residence. [ 23 ] The information on the screenshot [4] from the accused’s cellular telephone is also relevant. I deduce that, while it appears he made a purchase on June 14 in a Knowlton pizzeria, this is in actual fact impossible because he had been detained since that morning.

It is much more logical that the purchase happened the night before. [ 24 ] Joey Lapierre spoke of the time at which he left work (about 5:30 p.m.), [5] and then stated that he called his boss a few minutes later to ask him to write down his time of departure on his time sheet.

Later, in his testimony, he ultimately indicated a much later time for leaving work. [6] His testimony is much less convincing in this respect. [ 25 ] The victim, Jennifer Teneyck, however, is rather firm as to the time that passed between the moment the vehicles crossed paths and the call to 911, which was dated and timestamped. [ 26 ] Even if I do not entirely accept the testimony of Joey Lapierre, I recognize that his evidence indicates that the time at which Jennifer Teneyck claims the vehicles crossed paths is probably wrong, that this moment may have occurred earlier, perhaps as much as 30 minutes earlier in fact. [ 27 ] If she is wrong about the time, she might also be wrong about the exact location where they crossed paths. [ 28 ] Indeed, despite the more or less questionable, even doubtful, drafting of the condition binding the accused, I accept that the parties agree that the firehouse is within the prohibited perimeter whereas the pharmacy is not. [ 29 ] If the vehicles crossed paths in front of the pharmacy, the offence was not committed.

Consequently, in light of the contradictory evidence, a doubt remains in my mind, from which the accused must benefit. [ 30 ] There remains the second count of having communicated with Jennifer Teneyck by giving her the finger, regardless of the location.

[ 31 ] On that count, the explanation offered by the accused is frankly unlikely and, respectfully, it appears to me that counsel for the accused agrees.

The excuse, because that is what it is, that he could not have given the finger to the victim because he could not have freed his hand – and therefore his finger – to make that gesture, is not at all believable and does not raise any doubt in my mind. [ 32 ] To believe the accused would be tantamount to believing that he could not change the radio station, raise or lower the truck door window, cover his mouth with his hand if he sneezed, or remove some dust from his eye, if need be. It makes no sense. [ 33 ] It is admitted that the vehicles crossed paths.

The excuse given to explain why it was impossible for him to communicate makes no sense. The evidence supports the notion that the gesture – giving the finger – occurred beyond a reasonable doubt. [ 34 ] FOR THESE REASONS , the accused is ACQUITTED on COUNT 1 and CONVICTED on COUNT 2. __________________________________ Serge Champoux, J.C.Q. Mtre Élise Côté-Lebrun Counsel for the prosecutrix Mtre Alexandre Caissie Counsel for the accused Date of hearing: February 13, 2019, April 1, 2019, and June 21, 2019