r v. E. S., 2017 QCCQ 13138

R. c. E.S. 2017 QCCQ 13138 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF JOLIETTE LOCALITY OF JOLIETTE Criminal and Penal Division No. 705-01-076370-123 DATE: October 12, 2017 PRESENT: THE HONOURABLE CLAUDE LACHAPELLE J.C.Q. THE QUEEN Prosecutor v. E. S. Accused JUDGMENT (ORDER PROHIBITING PUBLICATION) The accused is being tried on charges of sexual interference, invitation to sexual touching, threatening to cause death, drug trafficking, and having administered a thing to the victim with the intention of aggrieving her. CONTEXT [2] The victim is the younger sister of the accused's spouse.

During the period in which the events occurred, she occasionally visited her sister, with whom the accused lived. The accused, while alone with the victim, invited her to sexual touching and sexual interference. [3] Twice, he gave her something alleged to be cocaine, and finally, in order to ensure her silence, he threatened to cause her death.

POSITION OF THE PARTIES [4] In the opinion of the prosecutor, the victim is credible and her testimony is confirmed in part by the testimony of her sister. The prosecutor argues that the accused's testimony raises no reasonable doubt; that he must be convicted of the offences he is charged with. [5] In the opinion of the defence, the accused's testimony is credible and raises a reasonable doubt. In addition, certain aspects of the victim's testimony are implausible and the testimony does not have the reliability required to be accepted by the Court, which is also the case for the testimony of the victim's sister.

Hence, the accused must be acquitted of the charges laid against him. FACTS [6] As concerns the admissions [1] made at the beginning of the trial, the parties admitted the following facts: • The identity of the accused was admitted; • The victim was born on [...], 1998; • The victim was under the age of 16 years at the time of the events; • The statements the accused gave to the police were admitted as having been given freely and voluntarily, in keeping with the accused’s constitutional rights. • The events occurred in the municipality of Chertsey.

I TESTIMONY OF THE VICTIM [7] The victim was 17 years of age when she testified before the Court, and the events happened when she was 10 or 11 years of age. [8] The trial opened with the hearing of the victim's statement recorded on May 4, 2012, the day on which she filed her complaint with the police. [2] At the time of the recording, the last events in which she was a victim had occurred two years previously. [9] During the hearing of the statement, the Court noted that the victim spoke of the events in a discourse that was interspersed with moments of silence and hesitation, and that her speech was not always fluid.

In the Court's perception, she was ill at ease or it was difficult for her to recall the events accurately. [10] After listening to Exhibit P-2, the victim confirmed the truth of the contents of her statement. [11] The following facts emerge from her statement [3] and from her testimony before the Court: The first event [12] The first event occurred in the residence, in the evening while the victim's sister was out to work. [13] The victim was in the living room with the accused. With his hands, he massaged her thighs and between her legs.

[14] The massage lasted approximately 20 minutes. [15] When cross-examined about the massage, the victim acknowledged that she did not talk about it when she met with the police officer, [4] nor did she refer to it in her testimony at the preliminary hearing. Thus, she mentioned it for the first time before the Court. [16] That evening, the victim wore shorts, but she could not describe her clothing. In cross-examination, she stated that her upper body was clothed by a short-sleeved sweater.

Moreover, as concerns her lower body, she changed her mind and could not describe the clothing she wore. [17] She could not describe the clothes the accused wore during the first event. However, during her cross-examination, she stated that the accused wore a sweater, but that she could not describe it further; she said that her recollections were not clear. [18] Still during that evening, the accused asked her to cover her eyes with her hands, which she did. Although she had her eyes covered, she testified that the accused went to the bedroom and came back with a DVD that he played, a pornographic film.

However, she later testified that, in fact, she was not sure it was the accused who went to get the DVD. [19] Furthermore, she pointed out that, during the period of the events, the accused had her look at pornography on a computer a dozen times or so. [20] Later in the evening, the accused asked the victim to fetch a condom from a kitchen cupboard. She followed the accused's indications, but did not find any condoms, so the accused went to get it. [21] The accused asked her to put the condom on his penis, but she did not succeed in doing so; the accused completed the act.

While looking at the film, the accused masturbated while wearing the condom and asked the victim to look at him and caress herself, which the victim refused to do. [22] During examination, she rectified her testimony. She said that she touched her genitals once or twice under a blanket, but she could not affirm whether the acts took place during the first or the last event. [23] Still during that event, the accused asked her to try on her sister's underwear, [5] which the victim did. She described the underwear and its colour. Events on the boat [24] The victim thinks that she was 10 years of age at the time.

Near the residence, there is a lake. On a few occasions, the accused took the victim out in a boat. [25] Once or twice, while they were out on the water, the accused masturbated before the victim and asked her to look at him. The last event [26] The victim, who was 11 years of age at the time, was in the residence with the accused; a pornographic film was playing on the living room television. Drugs and alcohol

[27] Early in the evening, the accused offered her some alcohol, which she drank. The accused later offered her some drug. The victim emphasized that the accused was in possession of a very large number of small bags, which she presumed to be cocaine. [28] In order to convince her to use some, the accused told the victim that her sister did so. Finally, the victim used a straw to snort a certain quantity of drug with the accused. [29] She described in a few words how the drug affected her. [30] During the evening, the accused showed her a weapon, which she summarily described.

The threat [31] On one occasion, the accused told her that if she talked about the events, he would kill her. The victim acknowledged that this statement was made after looking at the pornographic film, but she was not categorical in this respect. In addition, she was unable to specify exactly when this statement was made in the period of the events.

Victim's behaviour following the first event [32] On cross-examination, she confirmed that she would go to her sister's residence at her sister's invitation or on her own initiative. [33] The victim acknowledged that, following the first event, she continued to go to her sister's residence although she knew that the accused might be there. [34] In addition, she did not take any steps to make sure that the accused would not be present at the time of her visit. [35] The victim pointed out that she did not want anything to show, so she did not modify her behaviour after the first event, and did not change the frequency of her visits, because she was afraid of the accused.

Disclosure [36] The victim pointed out that her sister forced her to talk of the events. [37] Concurrently with the time the victim filed her complaint with the police, she wrote a document entitled [TRANSLATION] "Everything that upsets me", in which she described various topics related to the document's title. [6] [38] As concerns the contents of the document, the victim emphasized that one of its subjects is [TRANSLATION] "the thing with the asshole", that phrase being an analogy to the events undergone at the hands of the accused.

When cross-examined, the victim acknowledged that, in her testimony at the preliminary hearing, questions were put to her concerning the document, and that at that time, she was unable to perceive the analogy because she did not remember the document, despite having been questioned about it. Since the preliminary hearing, though, she has remembered the connection between that phrase and the events. II TESTIMONY BY THE VICTIM'S SISTER

[39] She is a barmaid. In general, during the period of the events she worked from 6 p.m. to 3 a.m. [40] She and the accused are a couple. The accused does not regularly live at the apartment she rents. [41] She has always been close to the victim. They have the same father, but not the same mother.

After the death of the victim's mother, she continued to stay close to the victim. [42] During the period of the events, the victim regularly went to her home, in particular, to babysit her three-year-old son. [43] She confirmed that there are pornographic films in a small cabinet in her room and that she has underwear of the same type as those described by the victim. [7] [44] While cleaning the victim's room, she found a piece of paper in the wastebasket, i.e.

Exhibit I-1. [8] [45] In the days following her discovery of the document, she passed by the door to the victim's bedroom and heard the victim say that she wanted to go to the police to report a sexual abuse. That is when she talked to the victim, who told her, in a few words, about the events involving the accused. [46] She confronted the accused at a time when she was still communicating with him.

He denied having committed the criminal acts alleged against him. [47] Throughout her relationship with the accused, she did not note anything abnormal about the accused's behaviour, or the victim's behaviour. [48] During her conjugal relationship with the accused, she had normal sexual relations.

The couple did not use condoms because she wore an intrauterine device [49] She did not recollect there having been any condoms in the kitchen cupboards or elsewhere in the house. [50] The accused very rarely drank alcohol, and he did not do drugs. [51] When cross-examined, she remembered that the accused had shown her a weapon.

However, she could not describe it precisely. [52] After being cross-examined at length about the victim's attitude in the period concomitant with the filing of her complaint, she finally admitted that, in her statement to the police, she had stated that her sister exhibited depressive behaviour and seemed to be upset. III THE ACCUSED [53] In general, he confirmed the prosecution's evidence, except for the criminal acts alleged against him. [54] He never used violence against the victim nor did he threaten her. He acknowledged his judicial record, in particular, assault and possession of cannabis.

[55] In accordance with

section 12 of the Canada Evidence Act, he was cross-examined in this respect. Thus, the Court learned that hewas sentenced for production of cannabis, not for drug possession. His explanation was that he did not know the difference between drugpossession and drug production. ANALYSIS Credibility of witnesses The law [56] The Court finds itself in a situation where the evidence adduced is contradictory. In this respect, it must abide by the teachings ofthe Supreme Court of Canada in R. v.

W.(D.) (SCC), [1991] 1 SCR 742. [57] In addition, as concerns the assessment of the testimony, particularly in a case such as this one, where a witness reports facts thattook place in childhood, I must abide by the rule set by the Supreme Court of Canada in R. v. W.(R.), (SCC), [1992] 2SCR 122, at page 134, where the Court emphasizes that: “In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according tocriteria applicable to her as an adult witness.

Yet with regard to her evidence pertaining to events which occurred in childhood, thepresence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the ageof the witness at the time of the events to which she is testifying.” [58] It is of note that this manner of addressing the analysis of the testimony, as concerns the portion of the testimony concerning thewitness as a minor, does not alleviate in any way the prosecutor's burden of proving the accused's guilt beyond a reasonable doubt.

What about the credibility of the witnesses heard? [59] The testimony of the accused was generally coherent. However, his answers regarding certain peripheral matters were lessprecise.

He answered with the words [TRANSLATION] "probably, it's possible, I don't remember". [60] In addition, when cross-examined about his judicial record, more particularly his explanation about confusion between a chargeof possession of drugs and a charge of production of drugs, his testimony was farfetched and substantially tainted the whole of thetestimony, such that I do not believe the accused, and his testimony does not raise a reasonable doubt in my mind. [61] The testimony of the victim's sister was generally coherent.

On certain occasions during her cross-examination, however, shedid not answer questions directly and sought to sidestep them. [62] In addition, at times, she had a tendency to state as facts things of which she had no knowledge. Indeed, although she did notremember the presence of condoms in her room, in the kitchen cupboards or elsewhere in the residence, she pointed out that she mighthave brought some home with things she brought home from the bar where she worked.

Apparently, on this point, the witness knew thevictim's version and sought to corroborate it. [63] As concerns the witness's answer to the effect that the victim's behaviour was depressive and that she was upset during the periodin which she filed her complaint, counsel for the accused had to have her contradict her earlier statement.

[64] That said, her testimony did not always seem objective to me, with the result that the reliability of the testimony is adversely affected. [65] Before the Court, and in her statement to the police officer, [9] the victim was hesitant and, on a few occasions, reconsidered her testimony to correct it. [10] [66] At other times, and for the first time, she discussed facts that she did not mention during the preliminary hearing or during her meeting with the police officer. [11] [67] The fact that the victim did not remember the clothes she wore has very little effect on the reliability of her testimony.

However, the fact that she claimed to have worn such and such piece of clothing and, later, in her testimony, changed her version to say that she no longer remembered, affects the degree of reliability to be given to her testimony. [68] When the victim talked about the massage given to her by the accused at the time of the first event, she may possibly have remembered this after talking to the police officer.

Furthermore, it is highly surprising that she did not talk about this event at the preliminary hearing. [69] As concerns the document entitled "Everything that upsets me", [12] in particular the passage allegedly related to the events in question, [13] the note was written before the victim filed her complaint with the police. [70] The Court notes that the victim did not mention this document when she met with the police officer. This, per se, is not surprising.

Yet, at the preliminary hearing, where she was cross-examined about that very document, she never mentioned the connection she made for the very first time, at trial before this Court, which strikes me as peculiar in the present context. [71] The Court cannot qualify these instances as simple, peripheral matters of no importance. [72] Thus, the reliability of the victim's testimony is substantially affected. THE PROSECUTION'S EVIDENCE [73] The low reliability of the evidence adduced by the prosecution is incompatible with the burden of adducing evidence that is beyond a reasonable doubt.

CONCLUSION [74] Taking into account the evidence as a whole, the Court is not convinced beyond a reasonable doubt that the accused is guilty. [75] THEREFORE : he is acquitted of the charges against him. (

S) CLAUDE LACHAPELLE J.C.Q. Mtre. Mathieu Locas Counsel for the prosecutor

Mtre. Mariam Tangi Represented by Mtre. Michel Leclerc Counsel for the defence Date of hearing: October 12, 2017