2020 QCCQ 3517, 2020 QCCQ 3517

R. c. Fabbricino 2020 QCCQ 3517 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Criminal and Penal Division” N o : 500-01-173986-180 DATE: September 10, 2020 ______________________________________________________________________ BY THE HONOURABLE SALVATORE MASCIA, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v. FABBRICINO, MICHAEL CARMEN Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ I.

OVERVIEW [ 1 ] In a single indictment, the accused, Mr. Fabbricino, is charged with six offences resulting from two separate incidents. More particularly, the indictment includes two counts of assault ( s. 266 (

a) of the Criminal Code ), two counts of assault with a weapon ( s. 267 (

a) of the Criminal Code ), one count of uttering a threat to cause bodily harm ( s. 264.1 (1) a) (2) of the Criminal Code ) and one count of harassment ( s. 264 (2) of the Criminal Code ). [ 2 ] The first incident accounts for only one charge in the indictment, that of harassment on the person of Ms. Gareau. It all happened on the morning of June 25, 2018, when the complainant headed out for a jog at Mount Royal Park. On the way to the main trail, she crossed paths with the accused who would have made a vulgar gesture of a sexual nature directed at her.

More particularly, he put two fingers in front of his mouth and mimed the act of cunnilingus. Disgusted by the act, she rebuked him with a derisive comment to the effect that he “was missing skin en tabarnak [1] ” She then headed off to the park’s main trail. [ 3 ] Perhaps upset by her comment, the accused proceeded to follow her for about a minute and one half all the while yelling in her direction. Except for the words “you, you, you,” she couldn’t make out what he was saying. She explained that she had her earphones on and was listening to music.

However, the tone of his voice was threatening and she was frightened. Even after he stopped following her, he continued screaming. [ 4 ] The accused, for his part, does not deny being in the park on the morning of June 25, 2018. For that matter, he even allows for the possibility that he and the complainant were aware of each other’s presence in the park. However, he flatly denied any suggestion that he harassed her. For one thing, he never made any crude or vulgar gesture of a sexual nature towards the complainant. He explained that he was merely rolling and licking a joint of marijuana.

If anything, the complainant misinterpreted this act as a cunnilingus gesture. [ 5 ] Next, he flatly denied any suggestion that he harassed the complainant, let alone followed her as she jogged towards the main trail. If she heard yelling, it could have been from some other joggers who happened to be at the park or perhaps from an individual calling out to his dog. [ 6 ] The second incident occurred a few hours later when the accused headed to the corner of Peel and William Street in the neighbourhood of Griffin Town. There, it is alleged that he gratuitously assaulted two pedestrians, Ms. Kanan and Mr.

Simpson, who were simply out for lunch and minding their own business. Next, he would have assaulted a group of men who came to the aid of the two pedestrians. One of the men, Mr. Roberge, was struck in the head with a plastic rod that the accused picked up from a nearby park.

[7] With respect to this second incident, the accused did not deny that he had a confrontation with the two pedestrians.However, he had an excuse or a justification to explain away any of the wrongful acts attributed to him. To begin, he portrayed himselfas a victim of the complainants, alleging that they pulled off the hair from the back of his shoulder when he was standing at the corner ofPeel and Wellington. His first instinct was to get away from the area; he even thought of calling the police. But as he kept walking, henoticed that the pair were still looking at him and giggling.

Feeling that he couldn’t let it go, he went up them and asked, “Do you have aproblem? What are you laughing at?” At that moment, Mr. Simpson turned around and assumed a fighting stance, but as he did so, heaccidentally hit Ms. Kanan in the face with his left elbow. He admitted to having administered a few soft blows to Mr. Simpson, but hewas merely acting out of self-defence against a man who appeared ready to fight. [8] As for the group of men who came to the aid of Ms. Kanan and Mr. Simpson, he admitted that he hit one them with aplastic rod. However, the blow was accidental.

In a gesture of self-defence, the accused was waving the rod back and forth at the group.He warned them repeatedly to stay away, but they didn’t listen. Unfortunately, one of the men was struck on the head as he lungedtowards the accused. From the accused’s perspective, he did not hit the complainant; rather it was the complainant who moved his headin the path of swinging rod. If the complainant was hit, it was through his own foolhardiness. The issues —First some general comments [9] The trial of the self-represented accused was slated to begin on June 26, 2019, and was expected to last but three days.

TheCrown’s witness list included the four complainants (one relating to the first incident and three relating to the second incident), the twopolice officers who proceeded with the arrest of the accused and the investigator who put together a photo lineup of the accused.Unfortunately, the trial had its share of fits and starts, sometimes marred by the disruptive behaviour of the accused and sometimesinterrupted by the presentation of long, confusing and convoluted Charter motions alleging a dizzying array of wrongdoings on the partof the state authorities (including the police, prison personnel, the first judge on this case and the undersigned)[2].

The accused evenpetitioned the Superior Court to have me recused from the trial. All the Charter motions presented before me were dismissed.[3] [10] This being said, the accused fared slightly better when he concentrated on the facts of the case, but not by much. To say theleast, he had a lot to say about nothing. The presentation of his final arguments included a hand-written, single-spaced document of over90 pages. His oral pleadings elaborated on the written pleadings and were delivered over parts of several days. [11] It was not always easy to follow the arguments of the accused.

His written arguments included too many unintelligible run-onsentences that go on for half a page. Too often, he resorts to speculation and conjecture with a dose of pop science or pop psychology tolend a sense of authority to his arguments. [12] Speculation and conjecture aside, the accused’s summing up was basically a study in minutiae. In an effort to cast doubt onthe credibility of the complainants, the accused painstakingly went through all the evidence in order to find the slightest contradiction,inconsistency or conflict in their testimony.

Often, the exercise was nothing more than pedantic hair splitting. [13] Of course, inconsistencies or contradictions are an excellent gauge for evaluating the credibility of witnesses. However, it isnot every inconsistency or contradiction that is important. First of all, certain inconsistencies or contradictions are expected in a witness’scourtroom testimony. Witnesses are only human. They cannot be expected to recall events as if they were recording machines; nor canthey be expected to recount events as if they were play-by-play sports announcers.

The ability to recall events with surgical precision isfurther compromised when the witness was also the victim of a sudden and unprovoked attack. Memories also fade with the passage oftime. [14] Next, a perfect play-by-play testimony would raise concerns that it was rehearsed and carefully crafted (with no gaps in thestory) so as to avoid being impeached by the opposing party.

Likewise, if two witnesses recount the same series of events with nocontradictions of inconsistencies, it would raise concerns for collusion. [15] In the end, what is important are material inconsistencies on important areas of the witness’s evidence. As the Court ofAppeal of Ontario observed in R. v. M.G., (ON CA), at paragraph. 23:

Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what thewitness said in the witness box and what the witness has said on other occasions, whether on oath or not. Inconsistencies on minormatters or matters of detail are normal and are to be expected. They do not generally affect the credibility of the witness. This isparticularly true in cases of young persons. But where the inconsistency involves a material matter about which an honest witness isunlikely to be mistaken the inconsistency can demonstrate carelessness with the truth.

The trier of fact is then placed in the dilemma oftrying to decide whether or not it can rely upon the testimony of a witness who has demonstrated carelessness with the truth. [16] Here, the accused zealously found his share of contradictions or inconsistencies in the complainants’ testimonies. Forinstance, there were discrepancies with respect to the accused physical appearance, including the clothes he was wearing. There weresome discrepancies regarding the timing of certain events. There were also discrepancies regarding the positioning of certaincomplainants before, during and after the assault.

However, as I slogged through the contradictions noted by the accused, there wasnothing to detract from the credibility of the complainants and the crux of their respective complaints (that is, the harm they alleged theaccused inflicted on them). The contradictions were insignificant when considered with the whole of the evidence. [17] In this decision, some of the contradictions brought up by the accused will be addressed. Thankfully, the case law does notrequire that I examine all of them.

A judge’s obligation to make essential findings of credibility and resolve critical legal issues does notrequire him or her to address every argument raised by a party.[4] As our Court of Appeal explained in Takri c. R., 2015 QCCA 690, at paragraph 33: Il n’est pas requis qu’un juge analyse chaque élément de preuve en détail ni qu’il s’exprime quant à chacun des éléments decontradictions soulevés, car ni l’exhaustivité ni la perfection ne constituent la grille d’analyse à utiliser pour juger de la suffisance desmotifs communiqués[5]. [18] This being said, I have read and reread the accused’s lengthy brief.

I have also reviewed my notes of all the oral submissionssubmitted by both the accused and Crown counsel. Though I will not address every argument regarding each piece of evidence, I haveconsidered them all in my deliberation. —Essentially a question of credibility [19] In essence, the case boils down to a question of credibility. For the accused, the contradictions and inconsistencies in thetestimony of the complainants rendered their testimony unreliable. No conviction could be founded on such testimony. [20] With respect to Ms.

Gareau, the accused offered additional reasons to dismiss her testimony—she was coached or fedanswers by either Crown counsel or the investigator during the trial. In one instance, he alleged that the investigator sitting at theCrown’s table whispered to the witness an answer to a question posed during the cross-examination. Worse still, after a long recess, Ms.Gareau completed her testimony with explanations of the fear she experienced when the accused was following her up to the main trail atMount Royal Park. Prior to the break, however, her testimony contained few details relating to the fear she felt.

For the accused, therewas no doubt that during the recess she was coached on what to say in order to complete the Crown’s case and secure a conviction on thecharge of harassment. [21] In the hope of raising a reasonable doubt, the accused argued that his physical attributes would have precluded him fromengaging a group of men much bigger than him in a fight. While the accused stands a shade over five feet five inches and weighs 160pounds, the complainant, Mr. Simpson, a man of medium build, was several inches taller at five feet ten inches.

As for the group of menhe allegedly brandished a stick at, they were all taller and bigger than him. Common sense dictates that he wouldn’t be so foolish as toengage in a fight when (compared to his opponents) he was outmatched both in terms of size and numbers. [22] Likewise, the accused claimed that the sorry state of his health was inconsistent with the desire to take on a group of fit andstrong men. Along with suffering from malnutrition,[6] the accused claimed to be suffering from heat stroke. He estimated that thetemperature was around 40 degrees that day.

When placed in the patrol car following his arrest, the officers had to roll down thewindows on account of the heat. Also, a couple of days after his arrest, a doctor’s diagnosis at the detention center where he was beingheld confirmed that he was suffering from pneumonia.

—Issues on points of law [ 23 ] On the charge of harassment, the accused claimed that the Crown’s evidence—taken at its highest —did not establish all the necessary elements of the infraction, namely, that the complainant feared for her safety. The accused noted, for instance, that the complainant did not turn around whilst being followed. Such conduct, he claimed, was incompatible with being afraid for one’s safety: She ultimately testified that she did not turn around.

If she was truly afraid, she would have turned around [7] . [ 24 ] Of course, the accused asks that I dismiss the complainant’s testimony of being fearful for her safety as nothing more than fabrication. As mentioned above, he maintained that this part of her testimony was the result of coaching from the Crown or the investigator during a prolonged recess. More particularly, she was urged to expand on the element of fear in order to remedy evidentiary gaps in the Crown’s case. The evidence —General comments on the methodology [ 25 ] In the next section, I will briefly review the testimony of all the complainants.

The review of each witness will be followed by commentary on matters of credibility. Also, the review will incorporate some of the issues raised by the accused on matters relating to the credibility and reliability of the witnesses. [8] —Testimony of Ms. Gareau [ 26 ] At 7:30 on the morning of June 25, 2018, Ms. Gareau was at Mount Royal Park for a jog. At the foot of the mountain, in front of the statue of George Etienne Cartier, she crossed paths with the accused. He looked at her and made a vulgar gesture of a sexual nature.

To quote from her testimony: He put his fingers in front of his mouth as if to make a gesture of a cunnilingus [ 27 ] Disgusted by the gesture she admonished him with the following remark You must be missing skin (tu dois être en manque de peau) [ 28 ] The complainant then headed up the trail while listening to music on her earphones . She then recounted hearing someone screaming loudly, it was the accused.

His tone was aggressive and though she couldn’t make out all his words, she was sure that he was yelling at her: I didn’t hear the words, but the tone was aggressive...But, I know he was calling me cause I heard “you, you, you” constantly. [ 29 ] She was alarmed not only by the screaming, but by the fact that the accused was heading i n the opposite direction when they first crossed paths. Now, it seemed that he purposely changed his course in order to pursue her. As she explained in her examination in chief: Q. What was your reaction?

A. I got really scared. Our paths were crossing, so he wasn’t supposed to be following me. Q. How did you feel? A. I was really scared. I felt alarmed. [ 30 ] It also didn’t help that the complainant was alone at the time: Q. Was there anyone else? A. Near me, no, but on the main trail there were two or three joggers. [ 31 ] She made her way to the main trail, walking slowly as she didn’t want to “show that she was afraid.” At this point, the accused stopped following her, but he continued yelling at her. No longer pursued, she felt that she was out of danger, but still frightened on account of the screaming.

As the accused “continued to be aggressive”, she decided to call the police. [ 32 ] In the courtroom, she gave the following description of her assailant: • Slightly taller than her (she stands 1.7 m or 5 feet 7 inches); • He had a long braided beard, dark in colour “with some red on account of the sun”; • She recalled that he was wearing a cap but did not notice the colour of his eyes as she didn’t “see him long enough”; • He was wearing a yellow top with a “smiley” on it. [ 33 ] After describing her assailant, she looked in the direction of the prisoner’s docket and pointed to the accused as the man who harassed her at the park. [ 34 ] To dissipate any concerns about identification, Crown counsel queried the complainant about a police photo lineup she was shown a few hours after the offence.

She recalled the caution or instructions given to her by the investigator prior to selecting a photograph: They told me to identify him if I was certain and not to do it if I was not sure. [ 35 ] The complainant then recounted that she positively identified the photo of her assailant (the accused) without the slightest doubt or hesitation. When I saw the picture of the accused, it was obvious to me that that was the man. [9] [ 36 ] In cross-examination, the accused highlighted the following “weaknesses” in the complainant’s testimony.

Firstly, she could not say which hand the assailant used to make the cunnilingus gesture. Secondly, it’s only in the cross-examination that she mentions that the assailant may have had a knapsack; yet, the written statement has nary a mention of a knapsack. Questioned on the colour of the knapsack, she could not say. [ 37 ] The said “weaknesses”, however, are of no consequence in the evaluation of Ms. Gareau’s testimony. Whether the accused used his left or right hand to mimic a cunnilingus gesture does not mean that he didn’t do it or that she didn’t see it.

One should remember that the gesture would have occurred while the complainant and the accused were crossing paths. For the few seconds in

which the complainant could have observed the assailant, one cannot expect the former to record or take in the slightest detail. What struck her was the vulgar nature of the act and not the hand that was used to perform it. Under such circumstances, one can understand that she recalls only the gross or general details. [ 38 ] In a sense, the observations of the complainant were corroborated by the testimony of the accused. As mentioned earlier, he did not deny putting his fingers to his lips while at the foot of the mountain.

Far from trying to offend anyone, he claimed that he was merely rolling and licking a marijuana joint. In short, the complainant merely misinterpreted his actions. In the end, the accused’s testimony is nothing more than a contrived effort to provide an innocent or alternate explanation to events clearly observed by the complainant (regardless of her inability to recall which hand did the offending). [ 39 ] Also, it would have been quite easy for the complainant to designate either one of the accused’s hands for the offending act and no one would have been the wiser.

Instead of being a sign of weakness in her testimony, her inability to recall the hand used by her assailant to mimic the act of cunnilingus bolsters her credibility. There was no attempt to embellish, exaggerate or overemphasize. Without guile, she candidly and honestly related the events she complained of. [ 40 ] With respect to the knapsack, the fact that she mentioned the accused may have been carrying one during cross-examination while failing to mention it in her written statement, is a totally trifling matter on the issue of credibility.

To begin, one cannot expect a witness to describe in her written deposition every detail, no matter how minute, of the events complained of. Secondly, the subject of whether he was carrying a knapsack or not is peripheral to the crux of her complaint—that is, whilst walking alone in the park she was followed by an assailant who yelled at her in a threatening manner.

Knapsack or no knapsack, whatever colour it may be, it is of absolutely no importance to this case. [ 41 ] In both his written and oral submissions, the accused brought up additional arguments to dismiss both the reliability and credibility of the complainant’s testimony. I will address some of the points raised by the accused. • Issues with respect to the physical description of her assailant [ 42 ] The accused noted a few discrepancies in the complainant’s physical description of her assailant. Firstly, she described him as being a little taller than her.

At five feet seven inches tall, however, she stands one and one half inches taller than the accused’s reported height of five feet five and one half inches. [ 43 ] Next, the accused took issue with one detail in the complainant’s description of the assailant’s beard—the colour. While the accused does have a black beard, there is certainly no red in it. He suspected that the complainant’s observations stemmed not from her recollection of the events but by seeing him in the courtroom where he stood behind a “polarized glass” [10] .

In his written arguments, he provides a series of long-winded, pseudoscientific and enigmatic reasons to explain how the complainant could have seen some red in the assailant’s beard. Frankly, the explanations are not only difficult to follow, they are irrelevant to the case. However, an excerpt of said explanations would be useful in understanding the general tenor of the accused’s written and oral pleadings—gibberish mixed in with scientific terms to give it an air of credibility: … the witness claims that the beard was braided and was dark but had red in it … in the sun.

If the beard was dark with a red hue and if it was braided, the sun would not have refracted through the hair because the hair would have been at its darkest while in a braid, and; given that—as she proposed——she crossed paths with the person with her back to the sun and—deductively—the person facing the sun, and given that hair refracts, if the hair did have a red hue, this would not have been—as she testified—unless the sun was refracting through the hair from behind, so therefore; in order for this—testified—proposition to be true, either she was facing the person and the sun was behind him or the person has hair that is—impossibly—reflective like a mirror … her proposition is physically impossible. ( sic) . [11] [ 44 ] Finally, the accused had several difficulties with the photo lineup drawn up by the investigator and presented to the complainant for identification.

For one thing, several of the photos were too dissimilar to the physical attributes of the accused. Yet, he complained that two of the photographs (pictures four and eight ) were too similar putting in doubt the ease with which the complainant singled out his photo rather than that of his look-alike. He also claimed that the investigator, SD Faubert tampered with the signatures or endorsements that appear on the photo lineup and that she basically directed the complainant to pick out the accused’s picture from the group.

Here, again, the accused’s explanations are not always easy to follow and even more difficult to sum up. For the sake of convenience (and to avoid any errors in the

summary), I will simply quote from an extract of his written pleadings:

The signature of M.C Gareau on the first page of the photo parade of which matches her signature on the written declaration is the only writing on the photo parade that tilts to the left, whereas; all of the other writing on the document tilts to the right at a similar angle to the signature of S/D E. Faubert, and also ( sic ); The initial or signature above photo number 8 on the second page of the photo parade does not match the signature of M.C. Gareau nor does it match her initial—as it can clearly be seen to exist over a correction on line #3 of her written disposition (sic).

These aspects relative to hand writing and endorsements—in the context of the execution and order of relative events—is suggestive of S/D Faubert completing the photo parade, pointing out the preselected photo of the accused and asked the complainant to sign the document (sic). … aspects regarding the differences between signatures and between the initials are simple matters of the comparison of endorsements on two officiated documents in the disclosure, and; the aspect regarding the difference in hand-writing is a simple matter of the comparison of and difference between left deflection and right deflection (sic ) [12] . [ 45 ] At pages 35 to 44 of his written arguments, the accused goes thorough the litany of incongruities he sees in the make-up of the photo lineup.

A

summary would be too tedious a task and largely unnecessary for the purposes of this decision. I have slogged through the accused’s arguments and find no rational reason to dismiss the photo identification as flawed. I should add that SD Faubert testified on the manner in which the photo lineup was set up and the manner in which it was presented to the complainant. Nothing in her testimony indicates that the photo lineup procedure—from the selection of photos to the interview with the complainant—was anything less than objective.

Also, the testimony of the complainant confirmed that she was not directed in the least in choosing the picture of the accused as being that of her assailant. [ 46 ] Always with a view of putting in doubt the complainant’s credibility, in general, and her observational capacities, in particular, the accused highlighted the fact that she didn’t notice the accused’s eyes when she saw him mimicking the act of cunnilingus.

For the accused, it defied social and psychological norms to not notice the eyes from the very start unless she was afflicted with autism: To note—the social predisposition/trait of humans to observe the eyes of another person first before making other observations is usually only averted by people afflicted by autism spectrum disorders, and; there has been nothing to suggest nor has it been raised as an issue that the witness has such an affliction ( sic) . [13] [ 47 ] A little less esoteric, the accused argued that the complainant’s ability to make certain observations, i.e. regarding his beard, the cunnilingus gesture and the clothes he was wearing, was incompatible with the claim that she did not have enough time to notice his eyes.

The third contradiction in reason is in the ideas that her initial attention was made to the person’s face and she only observes the cunnilingus gesture and the beard—presumably a goatee—and that she did not have enough time to view the eyes, and yet; she makes other observations from the person’s waist—shirt—to the top of the head—hat—and includes height ( sic ) [14] . [ 48 ] He also held that it was highly unlikely that the complainant could see his braided beard if he had actually put his fingers in front of his mouth to mimic the act of cunnilingus: The fourth contradiction of reason is in the ideas that she observed the proposed cunnilingus gesture and was able to observe the proposed braided beard presumably goatee, when; the persons forearm would have obstructed the witnesses/complainant view of the braided beard—presumably goatee ( sic ) [15] [ 49 ] In any case, all issues relating to the physical description of the accused and to him being positively identified by the complainant are totally irrelevant.

The accused, by his own testimony, admits to having been present in the park in the morning of June 25, 2018. He also admitted to having seen the complainant that day. In providing an alternate explanation for the vulgar act the complainant would have seen, he admits that she saw him there. [ 50 ] In sum, the accused’s nit-picking at the supposed flaws in the identification process is an irrelevant exercise.

There is no doubt that he is the man whom the complainant saw making a vulgar gesture in her direction as they crossed paths on the foot of the mountain; and there’s no doubt he’s the man who followed the complainant for about one and one half minutes all the while yelling at her in a threatening fashion. The accused’s claim that the yelling could have come from individuals who were jogging in the park or from

a dog owner calling after his dog is simply ludicrous. —The claim that the complainant was coached [51] The accused held that the complainant was coached by either Crown counsel or the investigator to state that she wasfrightened for her safety on account of her assailant’s conduct at the park. More particularly, he noted that she only broached the subjectof her fear after a long break in her testimony. Prior to the break, the matter was hardly mentioned. [52] The accused’s allegations of coaching and wrongdoings, however, are without any foundation whatsoever.

To begin, onehas to understand the context of the “long recess” in the testimony of the complainant. She started testifying at 12:13 on June 25, 2019;hardly enough time to cover every topic or aspect of her testimony before the lunch break. As the undersigned had a decision to render inan unrelated file at 2 p.m., the complainant only returned to the stand at 3 p.m. Granted, in the second part of her testimony sheelaborated on the fear she experienced whilst being followed by her assailant. However, this part of her testimony is nothing more than acontinuation of the testimony she delivered before the break.

Were it not for the lunchtime break, her narration of the story wouldcertainly have entailed a discussion of the fear she felt the morning of the events. [53] In short, when one reviews the testimony of the complainant, it is absolutely clear that her deposition was far from over atthe lunchtime break. It is also clear that the lunchtime break did not serve to remedy any gaping holes in her testimony. When the caseresumed in the late afternoon, Crown counsel simply continued with the normal course of the complainant’s testimony—a discussionabout the fear she experienced.

Any suggestions that the witness was coached does not even merit being dismissed as mere speculation—it is groundless and totally gratuitous. [54] In any event, the complainant does not even have to use the words “fear for her safety” in order to make out the charge ofharassment[16]. A court can draw an inference of fear based on the totality of the evidence. In R. v.

Szostak, 2012 ONCA 503 ,at paragraph 31, Rosenberg JA quoted with approval the comments of the trial judge to the effect that fear can be predicated upon thecomplainant’s uncertainty about what someone is capable of doing: [31] The trial judge [[2007] O.J. No. 3353 (C.J.)] was satisfied that the offence had been made out even though the complainant[page251] had not actually used the word “fear”.

He reasoned [at para. 26] that in the context of s. 264, “fear for [one’s] safety” included“a state of anxiety or apprehension concerning the risk of substantial psychological harm or emotional distress, in addition to physicaldanger or harm”. [55] In the same vein, our Court of Appeal in R. c.

Rancourt, 2020 QCCA 933 , at paragraph 38, explained that: Il est ainsi possible pour un tribunal d’inférer, à la lumière de l’ensemble des circonstances et des témoignages, qu’une personne asubjectivement craint pour sa sécurité, et ce, même si celle-ci n’emploie pas les termes « crainte » ou « peur » dans le cadre de sontémoignage. —The complainant’s conduct showed that she was not afraid [56] Despite her testimony to the contrary, the accused claimed that the complainant’s behaviour at the park belied anysuggestion that she was fearful of the man supposedly following her.

He noted, for instance, that while heading to the main trail, thecomplainant never turned around to see who was yelling at her.

For him, such behaviour was incompatible with the feeling of beingfearful for one’s safety: The complainant notably proposes by her written disposition (sic) and ultimately confirms by her testimony that she did not look behindher until reaching the main trail of which; she testified that one minute elapsed between seeming to hear yelling directed at her andreaching the main trail, and; given that the average walking speed of a human is approximately four kilometres per hour, she walked forapproximately ninety-nine metres before looking behind her (sic).

If she was afraid, she would have looked behind her well before allowing one minute to pass and approximately ninety-nine metres to be traversed ( sic) [17] . [ 57 ] Trying his hand at pop psychology, he surmised that the fear experienced by the complainant was only the “residual anger” resulting from her “emotionally charged rebuke” to a cunnilingus gesture she mistakenly attributed to the assailant. Here, again, the argument is not easy to follow and I will quote from his written arguments so as to avoid any error in

interpretation: Also—given that the complainant gave an emotionally charged (angry /upset) rebuke in response to the proposed to be perceived cunnilingus gesture and following emotion could and would be residual anger and could be mistaken and/or misconstrued to be fear ( sic ).

Further—given by the context of the exchange, if there was any actual fear that fear could be and would be manifest of the complainant’s conscience for her giving an emotionally charged, violent rebuke and belittlement to the other person (sic ) [18] . [ 58 ] Rather than save it for a later chapter, I will immediately address the specious arguments presented by the accused regarding the complainant’s want of fear. With regards to the first argument (failure to turn around), one cannot make generalizations about how a victim of harassment will or should react. As my colleague Galiatsatos J. explained in R. c .

Edgar, 2019 QCCQ 4821 : [130] The Supreme Court of Canada has recognized, there is no inviolable rule on how people who are the victims of trauma will behave (or how they should behave).

Generalizations regarding victim behaviour post-offence or mid-offence are rarely helpful. https://www.canlii.org/en/qc/qccq/doc/2019/2019qccq4821/2019qccq4821.html? searchUrlHash=AAAAAQAcZGVubmlzIG1vbnRnb21lcnkgaGFyYXNzbWVudAAAAAAB&resultIndex=1 - _ftn42 Each case will be fact-specific and there are no set rules as to how a victim of protracted harassment should or will react. [19] [ 59 ] To the same effect, the Court in Rancourt, supra , quoted the following passage from authors Isabel Grant, Natasha Bone and Kathy Grant: The presence of fear is a subjective test, and judges should not be too quick to dismiss testimony about emotional states which they perceive to be inconsistent with actions .

It is important to point out that in these cases the judges were not yet dealing with whether or not the complainants’ fear was reasonable, but just with whether the fear existed .

It is disconcerting that in observing the complainants’ behaviour, the judges failed to recognize that fear for one’s safety can co-exist with attempts to normalize one’s life or to appear brave in the face of fear . [20] . [ Emphasis in the original ] [ 60 ] As for the second argument——residual anger over the cunnilingus gesture—it is so ludicrous—that I need not comment any further. [ 61 ] In the present matter, the complainant’s qualms about her safety were entirely justified by the circumstances she described: • Her assailant made a vulgar gesture of a sexual nature in her direction; • It was early in the morning and she was alone in the park; • She was followed for circa one and one half minutes by an individual yelling in her direction; • Her assailant kept on yelling even after he stopped pursuing her (she described him as being out of control);

• As the yelling didn’t stop—and she still felt threatened—she immediately dialled for the police. — Hair-splitting in the quest for contradictions . [ 62 ] The accused zealously set out to find as many contradictions as he could from the testimony of the complainant, Ms. Gareau. As mentioned earlier, it is not my intent to go over the entire inventory of contradictions and inconsistencies dug up by the accused. This decision is already long enough. Besides, the contradictions and inconsistencies noted by the accused are of no consequence to the credibility of the complainant.

Much of the points brought up by the accused amount to nothing more than splitting hairs or arguing over semantics. [ 63 ] An example of the accused’s exercise in hair-splitting and semantics concerns a “contradiction” between the complainant’s written deposition and testimony on her assailant “having lost control of himself”.

More particularly, her written statement speaks of an individual who didn’t seem in control of himself, while the version given in court holds that the individual was not in control of himself: … this portion of her testimony in regard to “he did not look to be in control of himself” contradicts her written disposition ( sic) ; whereas, the context of the two versions are much different.

The testified version is in the context of seeing the person not be in control of themself (sic) , and the written disposition ( sic) version is in the context of that in retrospect the person did not seem to be in control of themself (sic); the context of seeming in retrospect is made twice at the end of the written disposition ( sic) Page 1 / 2, lines 27/28 : “Il ne semblait pas en contrôle de lui-même…alors j’ai décidé d’appeler la police.” Page 2/2, lines 8/9, …il n’avait VRAIMENT pas l’air en contrôle de lui-même (Emphasis in capital letters is from the accused’s written arguments [21] . [ 64 ] Semantics or hair-splitting aside, the general tenor of the complainant’s written statement accords with her testimony in Court.

There is no contradiction to speak of. —Testimony of Ms. Kanan [ 65 ] On June 25, 2018, at around 12:30 p.m., Ms. Kanan was walking on Peel Street with a colleague from work, Mr. Simpson. They were heading off to the Adonis near William Street in order to get lunch. [ 66 ] As they crossed a park, she heard someone yelling, “why are you laughing at me?” She turned around, but before she could respond, a man (the accused) punched her on the left side of the face. The accused then went after her colleague, Mr. Simpson, punching him and kicking him in the legs.

She also noted that the accused was rifling through his pockets. [ 67 ] She claimed to be in a state of shock—what was supposed to be an ordinary day in her life, proved to be quite the harrowing experience. Panic-stricken and frightened, she ran to the middle of the street so as to get away from the accused. But even while in the middle of traffic, she still heard the accused yelling at her. She also added that he was coming after her. [ 68 ] The accused, however, headed to a park located just across the street. Thereat, she saw him “brandishing a stick in front of people” in a threatening manner:

And then I saw him with a stick in his hand and there were other people outside the park and he was abusive at them… And he had a stick that he was poking outside to the people… [ 69 ] As for her injuries, she complained of a swelling on the left side of her lips and of pain on her nose. She did not, however, need medical attention of any kind. [ 70 ] The cross-examination of Ms. Kanan was relatively short. Essentially, the accused brought home the point that in her written statement to the police—taken a short time after the police arrived at the scene—she complained of being “slapped” by the accused.

It should be noted, however, that she also used the word “punch” in other portions of the said statement to describe the accused’s assault. [ 71 ] This contradiction (If it could be described as such) is of no consequence to the credibility of the complainant, Ms. Kanan, nor is it of any consequence to the nature of the charge of assault that concerns her. Be it a slap or be it a punch, it’s an assault. [ 72 ] Then, it’s debatable whether Ms. Kanan’s description of the assault in her statement constitutes a true contradiction with the version she gave in court.

Firstly, the statement contains both the words slap and punch to describe the assault. Next, one should consider that the statement of Ms. Kanan was given a short time after the police arrived on the scene and arrested the accused.

Surely, one cannot expect perfect word choice and play-by-play rendition of the events when panic-stricken victims of trauma are called upon to make a written statement of what happened to them just a few moments earlier. [ 73 ] In his summing up, the accused made much of the fact there was no evidence corroborating the complainant’s testimony with respect to the injuries she incurred—no medical report, nothing in the police report and no pictures. The want of corroboration on this topic is without consequence. To begin, the injuries complained of were not serious and did not require medical attention.

Need I remind the accused that the charge concerning Ms. Kanan is not one of assault causing bodily injury, but of simple assault? Next, the accused himself does not deny that the complainant received a blow of some sort. In his recounting of the facts, however, the blow was administered by Mr. Simpson when he accidentally hit her on the face with his elbow. [ 74 ] The accused’s written and oral pleadings include additional reasons to dismiss her testimony. I will limit myself to one example in which he took issue with the complainant’s testimony holding that she never saw the accused prior to the confrontation.

The extract below is merely another example of the accused’s tendency for splitting hairs when searching for contradictions or inconsistencies in a complainant’s testimony.

Also, the extract provides an example of the accused’s habit of peppering his arguments with unnecessary “buzz words” and attempts at legalese—as if it would make his position any sounder: Even further—these contradictions in reason and their suggestive resultants do offer further doubt to a nonsensical proposition made by the complainant J., whereas; she proposed in her written declaration that “I never saw him before, neither did I see him on the street…”, and whereby; this proposition has an effect of a double-negative … and to say “ … neither did I see him on the street…” is to say that she was aware of him on the street, but did not see him, and, is suggestive that she did see him. [22] [ 75 ] All in all, I have no reason to doubt the credibility and reliability of Mr.

Kanan’s testimony. I found the evidence of the complainant to be honest and sincere even if understandably lacking in precision and detail of recall in some instances. Never once did it appear as if she was reticent or evasive or trying to exaggerate the truth. On the crux of the matter, her testimony is quite compelling. —Testimony of Mr. Simpson [ 76 ] Not unlike Ms. Kanan’s testimony, Mr. Simpson explained how an ordinary walk down Peel Street to get lunch with his colleague suddenly resulted in an unexpected and unprovoked confrontation with the accused.

As the complainant described it, the accused ran after him and his colleague (Ms. Kannan), yelling that they were laughing at him. Their efforts to de-escalate the situation were fruitless and as they were standing on the sidewalk, the accused suddenly punched Ms. Kanan in the face. Then he came after the complainant (Mr. Simpson) with punches to the arms and kicks to the legs. The accused also reached into his pockets and said, “I have something for you”. From Mr.

Simpson’s testimony, however, there’s no indication that the accused took anything out of his pockets. [ 77 ] At that point, it appeared that the accused became distracted and he ran across the street. There, he shouted at Ms. Kanan, “I’m going to rape you.” He then headed to a courtyard where he picked up a long plastic rod and brandished it at a group of men standing on the other side of a fence. He managed to strike one of them. [ 78 ] All the while, Mr. Simpson managed to call the police on his cell phone.

They arrived without undue delay and promptly arrested the accused who offered no resistance. [ 79 ] In cross-examination, the complainant denied any suggestion that he or Ms. Kanan pulled hairs off the shoulder of the accused. For that matter, he did not even notice if the accused had shoulder hair or back hair. The only hair he saw was on his chest (of the accused). [ 80 ] The complainant admitted to having seen the accused prior to the confrontation. He surmised that he noticed him on account of the fact that he was shirtless.

[ 81 ] Questioned about the assault, Mr. Simpson recounted that his colleague (Ms. Kanan) fell down after being punched. He recalled her getting up but could not remember what she did afterwards. As for him (Mr. Simpson), he was fending off the blows being administered by the accused: “I had my hands up to block away punches.” [ 82 ] The accused did manage to score a few points in cross-examination. He noted, for instance, that the complainant’s written deposition—made at the time of the event—makes no mention of an assailant shouting out “I’m going to rape you”.

While admitting that such a threat was a serious matter or cause for alarm, the complainant could not explain why he didn’t mention it in his original statement. [ 83 ] It should also be noted that this part of Mr. Simpson’s testimony was lacking in details. In both the examination in chief and in the cross-examination, for instance, he stated that he did not notice where Ms. Kanan was situated when the accused yelled out, “I’m going to rape you”. That being said, his assessment of the situation led him to believe that the threat could only be directed at Ms. Kanan: She was yelling, she was scared.

That’s what led me to believe that it (the threat) was directed at her (Words in parentheses added) [ 84 ] As is his wont, the accused waded through peripheral details in finding fault in the testimony of Mr. Simpson. He also gets caught up in semantics. In the following extract from his written arguments, he makes much ado about nothing regarding the “first glimpse” the complainant (Mr. Simspon) would have had of the accused before the confrontation: The witness/complainant C.R.

Simpson gives a series of elusive and contradictory answers to a line of questioning that probed the idea that there was an encounter between the accused and the complainants at the intersection the complainants and the accused passed through before the accused ran up behind them and addressed them.

The complainant was asked if there was an encounter between the complainants and the accused at the intersection before the courtyard of 333 Rue Peel, and; the complainant answered—after a long time—“I don’t think so…” which is neither yes nor no and is suggestive that the complainants did pass through the intersection [23] . [ 85 ] While the accused points to the said extract as evidence that the complainant is a dishonest witness who waffles in his testimony, I see nothing but a witness who is trying to render an honest version of the facts without any exaggeration whatsoever. For that matter, the tenor of Mr.

Simpsons’ testimony is to the effect that there was no encounter between the parties prior to the confrontation. [ 86 ] The accused also got caught up on the issue of whether or not the complainant (Mr. Simpson ) saw any body hair on his assailant. While the photo evidence clearly establishes that the accused has plenty of hair on his shoulders, back and chest, Mr. Simpson only noticed the chest hair. Again, another inconsistency with no consequence on the crux of Mr. Simpson’s testimony. [ 87 ] Not done with the issue of body hair, the accused somehow transforms Mr.

Simpson’s answers on the said topic as evidence that there was a prior encounter between the parties. The reasoning is rather tortured and I could do no better than to reproduce the extract from his written arguments: The complainant was asked if the person had body hair in front and/or behind, and; he answers “no” … which contradicts with multiple other testimonies and photos and video exhibits. The complainant then goes on to retract his answer of “no” in regard to the existence of body hair.

The line of questioning posed a context of there being an encounter between the two parties at the intersection and of which included a focus on the accused body hair, and; the complainants answers in regard suggest that the complainant is at least self-conscience about the idea of his knowledge of the accused’s body hair and the idea of an encounter happening at the intersection of William St. and Peel St., and Given by the suggestive resultants of other aspects of these previously made arguments, it is probable that there was an encounter at the intersection (sic ) [24] . [ 88 ] Does the aforementioned argument of the accused even need a response?

I’ll limit myself to the following observation: he is grasping at straws. [ 89 ] As one might expect there were contradictions or inconsistencies between the testimonies of Mr. Simpson and Ms. Kanan. Some of these were aptly pointed out by the accused. One such discrepancy lies in the actions of the complainants when first confronted by a man complaining that they were laughing at him. In the testimony of Ms. Kanan, she recounted being struck immediately when she turned around to look at the man; there was no time for an exchange of words. Panic-stricken, she then ran off into the middle of the street. Mr.

Simpson, on the other hand, explained that both he and his colleague tried to defuse the situation by reasoning with the accused before the latter threw the first punch. Also, in the testimony of Mr. Simpson, his colleague fell to the ground and picked herself up immediately before running out to the street.

[ 90 ] Though the retelling of the story by the complainants does not match note for note, it still does not undermine their credibility. Firstly, the said inconsistency (as well as others pointed out by the accused) does not detract from their testimonies on the central issues in this case—the assault and the threats. Next, one cannot expect witness testimonies to match note for note when they are asked to narrate the facts and circumstances of a particularly stressful event they experienced some time ago; all the more so when they were victims of a sudden, unexpected and unprovoked attack.

As mentioned earlier, witnesses are only human, not computers or recording machines. For that matter perfect testimonies between witnesses would only raise suspicions that the witnesses got together and jointly crafted a storyline which though consistent is very liberal with the truth. —Testimony of Mr. Roberge [ 91 ] Mister Roberge was walking with a friend on Peel Street when he saw a woman (Ms. Kanan) screaming whilst running to the middle of the road and a man (the accused) shouting. From his perspective, the woman was running in order to escape the man who was shouting after her.

Though he was too far to hear the words uttered by either the woman or the man, he stated that the latter was “acting paranoid” and that he called a black man on the scene “nigger”. He also recalled that the accused told passersby not to call the police. [ 92 ] The accused then headed to a park where he picked up a stick that he brandished in the direction of Mr. Roberge and two other men. Though separated by a fence, the accused managed to swing the stick baseball style “right to left” [25] and hit Mr. Roberge on the right side of his head. Luckily, the blow did not result in any serious injuries.

As for the two friends standing alongside Mr. Roberge on one side of the fence, they came out unscathed. [ 93 ] While at the fence, Mr. Roberge took out his cell phone and managed to take one picture and one short video of the accused [26] . In the picture he is seen holding the plastic rod down with his two hands. As for the video, we see the accused walking briskly whilst yelling and pointing a stick in direction of the person holding the camera. From the accused’s tirade, all I could make out was the word “justice”. The video is but five or six seconds long. [ 94 ] Mr.

Roberge also identified the green plastic rod brandished by the accused while he was in the park [27] . [ 95 ] Finally, the witness added that the police arrived armed with pepper spray. Happily, the accused calmed down and the police didn’t have to use force to arrest or to subdue him. [ 96 ] For the most part, the cross-examination of Mr. Roberge reinforced the testimony he gave in chief. He reiterated, for instance, that the woman ran into the middle of the street to escape her aggressor. Likewise, he repeated that he didn’t hear the words pronounced by either the accused or Ms.

Kanan when she ran into the middle of the road; only that the former was aggressive: I don’t remember the insults; only that the man wanted to fight. [ 97 ] Also, the cross-examination did nothing to buttress the accused’s claim that he hit Mr. Roberge with the stick accidentally while fending off an aggression from a trio of imposing men. More particularly, whilst at the fence, Mr. Roberge denied any suggestion that he or the men alongside him made a move towards the accused. On the contrary, it was the accused who moved towards the group swinging a plastic stick to and fro.

While the two men alongside the complainant quickly took a step back, the latter was not so alert and was hit on the side of the head. The complainant explained his want of diligence by the fact that he happened to be looking at his friend at the moment that he was struck. [ 98 ] In the course of the confrontation at the fence, Mr. Roberge did recall the accused uttering statements to the effect that he (the accused) was the victim of an assault. It should be noted, however, that the said statements were made when the complainant told the accused that he was filming the whole thing with his cell phone.

In reality, he had yet to push the record button on his cell. From the complainant’s explanation, it appeared that the accused was merely hamming it up for the camera: Q. Who was the assailant talking at?

A. I think it was directed at me. You are saying that I hit you. I remember that I told you that I was recoding before I was actually recording. That’s why you were shouting. Q. What was the person saying? A. “No, you hit me and I will see you in court”, something like that. [ 99 ] The accused’s written submissions include several arguments to undermine the testimony of Mr. Roberge. Not surprisingly, the arguments amount to nothing more than semantics on trivial matters.

He claimed, for instance, that there was a contradiction between the witness’s claim of being a passive observer while all the while filming the accused. For that matter, the act of recording was a “hostile” act: The witness/complainant proposed in his written disposition ( sic) and in his testimony that he and his friend M.M. Boussabina and the other (black) male were only silent and observational. This proposition was contradicted by the portion of his testimony where he claimed to inform the accused that he (D.D.

Roberge) was recording the accused and further; the accused being informed of this given by the context of what unfolded before this point, the informing of and act of recording the accused was antagonistic ( sic ) [28] [ 100 ] For the purposes of this decision, I need not review and comment on the additional reasons submitted by the accused regarding the credibility (or lack thereof) of Mr. Roberge. I have read them all several times. Repeating them here will add nothing to the debate, nor will it change my mind regarding the testimony of Mr. Roberge. Like the other complainants/witnesses, Mr.

Roberge delivered an honest and credible account of the facts. Like all the other witnesses, I did not note any attempt to exaggerate or to hide the truth. —The testimony of Mr. Fabbricino [ 101 ] In essence, Mr. Fabbricino denied any of the wrongdoings alleged by the complainants. In the case of Ms. Gareau, she simply mistook the act of licking a joint of marijuana for the act of cunnilingus. Moreover, he never yelled at her, let alone followed her as she made her way up to the main trail at Mount Royal Park. [ 102 ] As for the second incident, his testimony had two themes.

Firstly, he portrayed himself as the victim of an insensitive act committed by two complainants (Ms. Kanan and Mr. Simpson) who were having a laugh at his expense. More particularly, they pulled out some hair from the back of his shoulder as he was standing quietly on the corner of Peel and Wellington. Even as they walked away, they kept laughing at him. [ 103 ] A second theme consisted merely of denying the assaults on the complainants or in providing a tailor-made excuse for justifying whatever blows he may have inflicted on them. With respect to Ms.

Kanan, the blow she incurred did not come from the accused, but from her colleague, Mr. Simpson. More particularly, her colleague accidentally hit her in the face when they both turned to face the accused. [ 104 ] With respect to the assault on Mr. Simpson, he merely delivered a few soft blows in order to protect himself from an imminent attack. The accused explained that Mr. Simpson assumed a fighting stance when Ms. Kanan ran out into the middle of the road. [ 105 ] As for the assault on Mr. Roberge, the accused was merely brandishing a plastic rod so as to fend off a group of men that came after him.

He even warned them all to stay back, but they wouldn’t listen and advanced towards him. It even appeared as if they would climb over the fence to get at him. Unfortunately, Mr. Roberge was hit as he dove towards the accused: As I swatted at Roberge, he lunged towards me. He lunged into the hit, right side of his head. It appeared as if he was trying to grab my

arms. (Emphasis added) [ 106 ] Part of his defence included explanations as to why his ill health would have made it impossible—or at the very least improbable—for him to commit the acts complained of. Along with suffering from malnutrition, he was also afflicted with heat stroke. He reminded the Court that it was extremely hot on the 25 th day of June 2018. To add to his physical woes, a medical exam performed at the jail just a couple of days after his arrest confirmed that he had pneumonia.

Given his physical weaknesses, how could he muster the strength to yell at the complainants let alone challenge a group of physically imposing men? [ 107 ] In the same vein, the accused noted that it was foolhardy to think that a man of his stature, five feet five and one half inches would take on a group of men physically more imposing than him. From the evidence, it appears that Mr. Simpson along with Mr. Roberge and the group of men alongside him at the fence were all taller and heavier than the accused. [ 108 ] I will immediately make short shrift of the aforementioned arguments.

Firstly, with respect to the accused’s ill health, the evidence clearly shows that it did not serve as an impediment to any of the acts complained of. All the witnesses confirmed that the accused was loud and threatening. Better still, in the video I don’t see a man who is physically compromised by malnutrition, heat stroke or pneumonia. Instead, I see a man who was walking with a quick and determined gait, brandishing a stick with one hand while yelling out at the person holding the camera.

Rather than weakness, he projects brutish force. [ 109 ] Still on the topic of the accused’s supposed ill health or physical weakness, it did not preclude him from walking over six kilometres to get from Mount Royal Park to the corner of Peel and William Street in Griffin town [29] . [ 110 ] Next, I am not in the least impressed by the accused’s argument that it would be foolhardy (and therefore unlikely) that he— a man of small stature standing alone—would go after a group of men who were physically more imposing than him.

In the course of this trial, I have had the opportunity to observe the accused’s behaviour. Even the presence of three or four burly correctional officers alongside him in the prisoner’s docket did not prevent him from losing control and lashing out. It was not always easy to restrain him. Clearly, the accused is not easily intimidated by the force of numbers or the physical attributes of those he perceives as adversaries. [ 111 ] For that matter, the accused seemed prepared—even eager for a physical confrontation with Mr. Simpson. Along with delivering a few “defensive” kicks and punches at Mr.

Simpson, he was trying to draw him into a fight so that he could be justified in “putting him in the ground.” As the accused coldly explained: I saw that he (Mr. Simpson) was aggressive and I was trying to draw him into hitting me. This way I would be justified into incapacitating them. I tried to feign him into giving me a punch. I hit him a few times. I wanted him to hit me, to do it with force so I could be justified further to put him into the ground.

Given his stance, I felt justified. [ 112 ] In the course of his oral pleadings, the accused tried to down play that part of his testimony by stating that he simply wanted to neutralize or restrain Mr. Simpson. But, Mr. Simpson didn’t have to be restrained, he never once attacked the accused. From the manner in which the accused testified, it could only mean that he was looking for an excuse to inflict serious harm on Mr. Simpson. [ 113 ] Next, I must dismiss as totally contrived and absurd the accused’s contention that either Ms. Kanan or Mr. Simpson would have pulled hairs from the back of his shoulder.

There’s nothing more to add. [ 114 ] Equally ludicrous, the claim that Ms. Kanan was accidentally hit in the face by her colleague’s elbow. If it was truly accidental, Ms. Kanan would not have run screaming into the middle of traffic to escape the accused. The accused’s story makes no sense and must be dismissed as total fabrication. [ 115 ] In his testimony, the accused admitted that he shouted at Ms. Kanan when she was in the middle of the road. He insisted,

however, that it was not to threaten her, but to warn her to get out of the road for fear that she would be hit by a passing vehicle. Giventhe context, nothing could sound more disingenuous. It is difficult to believe that the accused—having gratuitously punched a woman inthe face—was suddenly concerned about her safety. For that matter, everything about his conduct was inconsistent with the security ofMs. Kanan. He was angry and out of control. Feeling humiliated, he was looking for a confrontation. From his own testimony, he wasready to use brutish force. [116] With respect to Mr.

Roberge, I do not believe for one moment the accused’s claim that he was acting in self-defence. Nor canI accept his claim that the complainant was the author of his own misfortune as he lunged head first at the accused who was swinging astick from right to left. In assessing credibility, a judge cannot leave behind his common sense. [117] One last issue on the accused’s credibility, his criminal record.

In the course of his cross-examination, he admitted to havinga substantial number of priors, including convictions for mischief, indecent act, assault causing bodily harm, assault on a peace officerand uttering threats. He added, however, that his priors were a miscarriage of justice. [118] In referring to the accused’s record, I am well aware of the caution against propensity reasoning—that is, one should guard against thinking that the accused’s history or propensity for violence in the past means that he acted in a similar manner on June 25th,2018.

Here, the accused’s criminal record is strictly a question of his credibility. As the Court of Appeal of Quebec explained in R. v.Patrick, (QC CA), [E] vidence of prior convictions of an accused is admissible only for the limited purpose of assessing his credibility in the testimony hehas given before the court. It cannot be used to establish bad character or to prove that the accused is the kind of person who is morelikely to have committed the offence with which he is charged or that he has had a tendency to commit this kind of crime or is more“liable” to have committed it because he has done so in the past.

Evidence of a criminal record can only be used to evaluate the testimonial reliability of the accused and not to decide his guilt or hispropensity for committing crimes: R. v. Corbett, (SCC), [1988] 1 SCR 670 [119] While crimes involving dishonesty are certainly relevant to the credibility of the accused, this is not to suggest that othercrimes are not equally relevant, particularly depending upon the testimonial approach that the defence intends to take[30].

In this case,the accused tried to portray himself as a peaceful man who just goes about his own business. [120] The accused’s credibility also took a hit when he claimed that his convictions were a miscarriage of justice. Granted, anoffender has the right to maintain his innocence. Granted, judicial errors have been made and, regretfully, there have been somecelebrated cases of wrongful convictions. However, when an accused claims that his entire criminal record (or a great part of it) issimply a miscarriage of justice, one is stretching the bounds of credulity.

At the very least, it shows that the accused refuses to concedethe obvious and that he is very free with the truth. Conclusion [121] After considering all the evidence, the testimony of the accused does not lend itself to the slightest doubt based on reason. Itwas all fabricated reality. In the end, his testimony was nothing more than a contrived effort at tailoring an innocent explanation to thedamning evidence against him. [122] Consequently, I find the accused guilty on counts 1, 2, 3, 4 and 6 of the indictment. It is only on count 5 (uttering threats onMs.

Kanan), that the accused will be given the benefit of the doubt. I must insist, however, that the acquittal on count five does not meanthat I did not believe the testimony of Mr. Simpson regarding on that subject. On the contrary, I do believe him. However, the lack ofcertainty with respect to certain details makes it that the accused will be given the benefit of very liberal application of the concept ofreasonable doubt.

__________________________________ SALVATORE MASCIA, J.C.Q. M e Pierre Olivier Bolduc Counsel for the prosecution Michael C. Fabbricino Representing himself Dates of hearing: June 26, 27, 28 and October 1st, 21, 2019 and May 13, 21 and June 1st and July 8, 2020.