2023 QCCQ 5879, 2023 QCCQ 5879

R. c. Diggs Conn 2023 QCCQ 5879 COURT OF QUEBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF LONGUEUIL LOCALITY OF LONGUEUIL « Criminal and Penal Division » N°: 505-01-173909-215 DATE: June 15, 2023 ______________________________________________________________________ THE HONOURABLE RICHARD MARLEAU, J.C.Q., PRESIDING ______________________________________________________________________ HIS MAJESTY THE KING Prosecutor c. MATTHEW DIGGS CONN Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________

PREAMBLE [ 1 ] The complainant met the accused through a friend who was serving time in prison with the accused. After his release, they started their relationship. She considers the accused as her boyfriend from 2015 until 2020-2021, but in an on and off fashion due to numerous conflicts that erupted over the years in relation to the accused’s conduct. In fact, all went well only for the first month.

Afterwards, a lot of arguing erupted, made worse by the verbal abuse of the accused who constantly referred to her as a bitch , a whore, etc. [ 2 ] We also learned that during these years, complaints were filed that led to Court accusations. Some were abandoned by the complainant, others resulted in sentences. At times, probation orders prohibited the accused to communicate with her. The comprehension of the complainant was that these orders provided an exception if she was consenting to the communication.

Suffice to say that she allowed the contacts, which in part explains the on and off relationship. [ 3 ] However, even though she did in the past filed complaints against him for his abusive behavior, sexual assault was never brought up. The issue was personal, and she was not ready to denounce. [ 4 ] The first three counts (sexual assault, confinement, and assault) are all in relation with the conduct of the accused during his relationship with the complainant.

On numerous occasions, the accused would have forced sexual intercourse without the complainant’s consent and slapped her. [ 5 ] On one such occurrence, the accused would have confined the complainant in her bedroom and assaulted her before and during the sexual assault. [ 6 ] The fourth count is assault causing bodily harm. This would have occurred during a social gathering in the backyard of the residence of A. Q. (A.) in Town A as we will see. [ 7 ] A. was heard on that count, along with the parties on all counts.

THE COMPLAINANT’S EVIDENCE IN REGARD OF COUNTS 1-2-3 [ 8 ] Her testimony relates that on between five to eight times over the years, the accused would have forced sexual intercourse while she was not consenting. [ 9 ] On one such occurrence, in her bedroom in her parent’s apartment [1] , her mother was alerted and came to the bedroom’s door brandishing a knife to persuade the accused to stop.

[ 10 ] The occurrence that stands out in her memory also took place in that bedroom. The highlights are as follows: − After an argument, she wanted to leave. He refused, locked her in the bedroom and pushed her on the bed with his hand on her torso/shoulders. She stood up and he pushed her again in the same fashion and slapped her face. He was aggressive, rough, and calling her names. She started crying and asking him what are you doing ? − He is by then on top of her. She tries to get up.

He then tore her shirt and legging, put aside her underwear while pinning her on the bed and penetrated her vaginally with his penis. − She was crying, asking him again what he was doing. − He then asked if she wanted him to stop. She answered that he might as well finish it since he had already penetrated her. − She has no recollection of what took place once it was finished or what was said, save that she wanted to cry. She can’t tell either if the accused ejaculated or not. [ 11 ] This was the pattern for all the other occurrences. It was always in that room.

The arguments normally erupted when she wanted to go out and he refused. He was sometimes sober, sometimes he was drunk with alcohol. He didn’t want her to leave and wanted sex. When she refused, she was slapped around, and he forced himself inside her. She can’t recall that he would have talked to her during these occurrences, save for the above mentioned one. [ 12 ] She is unable to chronologically place the occurrences, be it for the one with her mother at the bedroom’s door with the knife or the one that stands out related above or with all others.

The only timeline comes in cross-examination: a trip to Jamaica in the summer of 2017. This trip would have been before everything, including what happened in Town A. [2] But she will answer afterwards that the last sexual assault could have been before or after Town A. [ 13 ] The cross-examination highlighted the following: − When she made her statement on video at the police station, she stated that I ended up liking it in reference to the occurrence that she remembers the most [3] . She can’t say why she said that but recognizes that it was indeed the fact for that one.

For the others, no. − The eight occurrences were said in the video. She is unable to say where or when the first occurred. She can’t provide more details, save that it was always the same pattern that led to the aggressions. − She remained silent about the present charges when she pressed other charges against him in the past. She was not ready at that time to disclose such personal information. It took her time to do so. THE EVIDENCE ON COUNT 4 [ 14 ] The complainant and the accused had been invited by A. to spend the evening at her place. She had a friend, N., also present.

Part of the invitation was also in regard of repairs that had to be done on a pool in the backyard. [4] They were picked up by car by A. to get to her residence. [ 15 ] The complainant places their arrival in the afternoon. [5] By early evening, all four of them are outside and they listen to music by a fire in the backyard. The music is from A.’s car that had been parked in the backyard for that purpose. All had taken GHB by that time, save for N.. It was a first for the complainant. [ 16 ] At one point, A. and the accused went inside to prepare drinks while the complainant stayed outside with N..

They must have stayed inside for an hour. Upon their return in the backyard the accused immediately started an argument with the complainant, accusing her of cheating him with N. while he had been inside. [ 17 ] The complainant is confused, does not understand the accusation and the argument escalates for approximately 20 minutes. At that point, both A. and N. want to go inside. She tells them to stay with her, that she is afraid. The accused calmed down afterwards, and A. made him say that he would remain calm if she and N. went inside. He agrees. Both then go inside. [ 18 ] The complainant is still afraid.

He remains aggressive. They end up near the boat in the backyard. He pushes her on her shoulders. She falls on the ground and hit her head. [ 19 ] From there, the highlights are as follows: -He puts himself on top of her with her back on the ground. He tears the tank top and legging that she was wearing and her underwear. -He starts choking her at the throat. She sees black . He eventually stops. She runs to the house. Both A. and N. are in bed. It takes 10 minutes for her to breathe normally again. She cries and covers herself with a blanket. -The accused then comes inside. He slaps her and calls her a whore.

She goes to the couch in the living-room. He pinches her, hit her on her temple, pulls her hair and continues calling her names. -He then falls asleep on the couch. She goes take a bath. When she returns, he asks her if she had talked to guys on her cell phone while she was away. [ 20 ] The cross-examination highlighted the following: − She had put their arrival around 7pm, but it is not exact. She is unsure if they were picked up at their apartment (they were only there one month) or at her mother’s. She can’t remember if they had alcohol before leaving, but they had drinks on the premises with the

GHB. No supper was served. She can’t recall if they had eaten before getting there. − The argument after the accused and A. came back was in regard of her alleged infidelity with N. during that hour, not because she had a jealous fit that the accused had been an hour alone with A. inside. − She adds to her previous testimony that a car was parked in the backyard with a door opened near the fire, but that she did not go inside the car. − She put her clothing in the garbage inside the house after it was ripped out and was naked under the blanket. She refused A.’s offer to lend her clothes.

She went back the next morning to her place with the blanket on her. She had marks on her. − She was too afraid to call the police that night. − She did not see the accused after June or July of 2021. They had continued their on and off relationship until then. − The case came up for trial in October 2022. [6] She learned from C., a friend, who by then had had an affair with the accused, that he had left for Kuujjuaq and was in a relation with an 18-year-old girl.

The complainant tried to reach her to warn her that the accused was not a good person. − She was not aware that C. had also laid charges against the accused. She only knew that there was a prohibition of contact between them, but not that it originated from a Court order. − As for A., she knew that she had laid charges against the accused and that he had been condemned. She only told her that she was going to file a complaint for sexual assault and what had happened at her house in the backyard.

For the latter, the complainant asked her if she was consenting that her name be given to the police as a witness. − The accused came to her in May 2021 following her grandfather’s death. They talked and resumed contact. They were not dating. It lasted a month. There was no violence or assault present. He knew at that time that she had filed a complaint against him. He did not ask her to withdraw the complaint, saying “ don’t take away the charges ”. They didn’t see A. together during that time. − She also texted him in July 2021.

A.’S TESTIMONY [ 21 ] She describes herself as a long-time friend of the complainant. The friendship lasted 8-10 years but is nonexistent today. They don’t talk anymore. [ 22 ] She met the accused as the complainant’s boyfriend in October 2017. He was a good friend from there and she eventually ended up in a relationship with him around September 2018. [ 23 ] The incident in her backyard happened around July 2018. She went to pick them up in her car at their residence [7] . It was after supper. The evening was planned around a fire. The journey took approximately half an hour.

An argument took place between them in the car concerning the complainant’s cell phone. [ 24 ] She parked her car near the fire pit in the backyard upon their arrival. The accused and her friend N. started the fire. [ 25 ] She went inside with the complainant to prepare drinks. They all took GHB in the house, then MDMA outside, save the complainant for the latter, along with the drinks. Everything goes well for 30 minutes: they drink, they talk, they listen to music from her car. [ 26 ] At that time, the drugs had not yet taken effect on her. The drinks are finished. She goes back inside to prepare another round.

The accused had proposed to help and follows her inside. [ 27 ] They both redo GHB. The accused was friendly but was making advances toward her. She refused, alleging her friendship with the complainant. They must have stayed inside for 30 minutes. Once both back outside, the atmosphere rapidly changed for the worst. The complainant and N. were standing near the fire, talking. The accused became jealous and was insinuating that they (the complainant and N.) had not just talked when he was inside. His attitude was directed towards the complainant.

He started insulting her ( cunt, fat bitch , etc). [ 28 ] Seeing that it was getting worse, she suggests to the complainant that she sits in the car and that she would join her. The complainant takes the passenger front seat. She joins her in the driver seat. [ 29 ] What evolved after can be resumed as follows: − She tries to calm the accused from inside the car, to no avail. He was seeing black. He was talking loud with an aggressive tone. − The complainant started to cry while asking him to stop. − A. then locked the car’s door, while still trying to calm the accused.

The complainant asks her to be driven back home, but she refuses to drive due to the drugs taken. − She then decides to get out of the car and discuss with the accused. It went OK for 10 minutes, but he then saw the complainant inside the car talking on her cell phone. − He goes to the car, opens the door and hits her on her face and chest while pulling on her sweater.

− Both the complainant and A. say STOP . A. is on the accused’s back, trying to restrain him and pull him from the car. He was still holding the complainant by her clothes with one hand and hitting her with the other. − After, one of her pulls make him trip over. She pushes him aside, closes the car’s door and tries to calm him down when he tries again to open the door. The door opens. He continues to punch the complainant. A. manages to put him aside again and tells him that if he was to hit a woman, it would be her. He answers that he does not want to hit her. − She brings him toward N. for them to talk.

N. was also asking him to stop. Both were in front of the car and went shortly after towards the fire. She went back to the car and talked to the complainant who was still crying. A. then went towards the two men. The complainant remained in the car and took out her cell phone. The accused sees this. He resumes his aggressive behavior and goes to the car. He wants the keys, says that they will leave and that he will drop the car somewhere and that A. should declare it stolen. She refuses. − He tries again to get in the car, hitting it with his fists.

He was still pretending that she had cheated on him with N., who by then had denied it. − They then went back to the fire and A. tried to change the topic of conversation. After a while, it was calm and back to normal. The complainant, who by then had been in the car between one or two hours, joined them. − They all went towards the swings at the end of the backyard. The accused brought back again his accusations towards the complainant, got angry and hit her on the face and tried to strangle her. She was able to push him back. − N. then took the accused apart and made him swear that he would not hit her again.

The accused swore that he would not hit her again. A. then asked the complainant if was OK if she and N. left them to go to bed. She said yes. They left and went to bed. − During the night, it knocked at the bedroom’s door. It was the complainant, wearing only her underwear and a torned sweater. She had bruises on a leg, hand marks around her neck and her face was swollen. − The complainant was not very specific as to what had happened after she and N. went inside. She said that the accused was sleeping and that she wanted a blanket. She offered her bedroom. She refused.

The next morning, she drove them back: him at the apartment, her at her mother’s. [ 30 ] The cross-examination reveals that she cheated afterwards on the complainant with the accused before they broke out. This ended their friendship. [ 31 ] She became aware that the complainant filed charges against the accused during that period, but not the details. [ 32 ] She basically relates again the narrative of the evening with no significant new facts that emerge. [ 33 ] Nobody called the police even if N. wanted to do so.

She also wanted to call the police, but she respected the complainant’s wish not to do so. [ 34 ] She is affirmative that when the complainant came during the night requesting a blanket, she was not naked. [ 35 ] She admits that it was not mentioned in her written statement what took place near the swings and that he had strangled her. She had been told when making her statement that if additional recollections came back afterwards, she could talk about it. That

part came back to her when the trial started on the first day when trying hard to remember everything while waiting to testify. [ 36 ] The next morning, the complainant left with the blanket. She can’t recall how she was clothed under. In fact, from the moment that she woke up, the complainant was asking her to leave and be driven back home, which she did. She has no recollection of finding torn clothing at her place afterwards. [ 37 ] She renewed contact with the complainant after she herself laid charges against the accused in 2020. They became somehow friendly again for a while, but it didn’t last.

They never discussed during that time the specifics of the evening at her place. It only came up briefly in 2020 when she was asked by the complainant if it was OK if she proposed her name to the police as a witness. However, she never heard the complainant’s version, and they never discussed it either between themselves. [ 38 ] They are not in contact now. ACCUSED’S TESTIMONY [ 39 ] He corroborates how they met. It started in 2015 when he was detained. He relates an on and off relationship that lasted 7 years during which he had to deal with control issue on her part. She would not let him drink with his friend.

She sometimes assaulted him. He also admits that she laid accusations of assault against him. Some were withdrawn. Some he pleaded guilty to. One went to trial, and he was acquitted. He learned from her the present accusations in 2020, before the case was officially in Court. [ 40 ] He had an affair with A. while still with the complainant. They had later a child together. A. also laid charges of assault against him for which he received an 18-month sentence if he remembers correctly. [ 41 ] While he was with the complainant, he always had girlfriends when the relationship was off.

The complainant always contacted them to denigrate him. She was also irritated in 2020 when he was with a girl named C., since she was one of her friends. [ 42 ] He eventually moved to Kuujjuaq and started a new relationship. The complainant found out about his new girlfriend and communicated with her to denigrate him. She didn’t answer. The complainant then contacted her best friend to do the same [8] .

[ 43 ] He was staying with her family in their apartment and paying rent to be there. Often, when they were making love, either her father, mother or brother could be present in the apartment. This was taking place in the complainant’s bedroom that they were occupying. [ 44 ] He could not have locked her in the room as she testified. The lock was a simple device on the doorknob and was broken from the beginning. [ 45 ] As to what happened in Town A, he remembers having been there approximately 7-10 times.

They went there to let loose , party, take drugs and drink alcohol. [ 46 ] He made love to A. there on numerous occasions, and at least once when the complainant was also there. N. was introduced to him initially as A.’s boyfriend. [ 47 ] If he had to sleep there after a party, it was on the red couch. [ 48 ] He denies the accusation. Everybody was partying that night. [ 49 ] To resume, he describes all the present accusations as bullshit. [ 50 ] In cross-examination, he admits that his relationship with the complainant was toxic from the beginning.

She cheated on him before his jail release, and both cheated on one another afterwards. This led to arguments, and it became physical on both sides. He was also controlling, not liking when she was going out. [ 51 ] He remembers that often when they visited A.’s place in Town A, the four of them could be there with nobody else. On 90% of these occasions, drugs and alcohol were consumed, with all feeling good. GHB, Special K (ketamine) and Molly (liquid ecstasy) were the main drugs. The complainant was doing GHB. [ 52 ] He does not recall any fights with the complainant at that place.

He believes that she had suspicion of him having an affair with A. before she moved to Town A. [ 53 ] He does not recall a pool or a boat in the backyard in Town A, but it might be possible. [ 54 ] He admits that both were aggressive towards each other during the relationship. He never called the police on her. In his community, you just take it , you don’t denounce your girlfriend to the police. [ 55 ] As to A., it did not end well with her.

They don’t talk to each other, but they saw each other after his sentence was served and it was OK. [ 56 ] Finally, he readily admits his prior convictions when questioned about them. ARGUMENTS OF THE PARTIES [ 57 ] Defense is arguing a lack of credibility and reliability in the complainant’s evidence. Her testimony is plagued by I don’t remember most of the times. She can recall the infractions, but nothing around them. She should have a better memory. [ 58 ] A good example is with the sexual assaults.

Apart from stating that it occurred 8 times, she is unable to place the first one or to give details apart from that it was usually or always the same pattern. [ 59 ] As for what took place in Town A, A. contradicts her when she places her in the car when the complainant testified that she was never in the car that night.

She is also contradicted when claiming that she was naked after the assault and afterwards under the blanket when A. says that she was wearing her underwear when she knocked on her bedroom’s door. [ 60 ] The evidence is also very thin on the second count, and the evidence is contradictory if the bedroom’s door could be locked or not.

We also have no medical records or evidence such as pictures to show the alleged bodily harm suffered on count 4 . [ 61 ] In short, considering the presumption of innocence, the numerous I don’t remember and the contradictions between the two Crown’s witnesses, we can’t conclude that Crown has proven without reasonable doubt the infractions laid. [ 62 ] Crown argues that the accused only offered a vague overview of what happened. For what happened in the complainant’s bedroom, we don’t have anything from him more than the lock was broken.

And apart from stating that both were generally aggressive towards each other, he does not say anything concerning Town A apart that they were all intoxicated. [ 63 ] Crown adds that we also have to remember that the complainant is a victim of domestic violence. While it is true that the complainant did not offer a perfect testimony and that she is contradicted on certain subjects by A., she was honest and trying as best she could to tell the truth. Besides, there is no obligation that a testimony be perfect [9] . We cannot therefore reject her testimony or A.’s one.

There is still sufficient evidence to conclude that the accused committed the crimes. THE LAW [ 64 ] The Court is bound by the three steps analysis of the Supreme Court of Canada in R. v. W.(D). , 1991 1 RCS 7 , in regard of assessing the evidence: -First, if you believe the evidence of the accused, obviously you must acquit. -Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

-Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, based on the evidence that you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 65 ] Furthermore, the judge must factor in all the evidence tendered in order to determine if the accusation has been proven without a reasonable doubt or if it still subsists a reasonable doubt in favor of the accused [10] .

PRELIMINARY REMARKS [ 66 ] Even though it was not argued as such, defense did contemplate in argument that revenge could be at play as the motive behind the charges. [ 67 ] We must dismiss this theory. [ 68 ] While true that both entered in relationship with the accused that did not end well, and that both filed charges against him in the process, it does not however lead inexorably to revenge. [ 69 ] In regard of the complainant, there is no ground to set aside her explanations as to why she did not press charges for the sexual assault before even if the crime had already been committed when she filed her previous complaints for assault. [ 70 ] Also, however questionable is her conduct in pursuing on social media the accused’s girlfriends that followed her, it does not prove revenge. [ 71 ] Defense also puts some emphasis on the following topics: − That for the alleged sexual assault where the accused would have torn the clothes of the complainant, we have no indication as to what happened to the clothes: this argument is at best addressing peripheral facts and is not relevant to resolve the issue of guilt or innocence − That both the complainant and the accused ended up sleeping on the same red couch at A.’s place after the evening in Town A: it implies, if that was the purpose, that it is not credible that the complainant would have slept on the same couch than him after being the victim of what she described.

First, the accused himself testified that it was the only place to sleep when they were there and that they had slept there before when they had to stay overnight. Second, the argument invites to myths and stereotypes that a victim would not have such behavior. There is no need to elaborate that such a reasoning is not a path to be followed. [ 72 ] We also must dismiss the absence of medical records or pictures in regard of count 4 to prove bodily harm. Nothing prohibits that it be proven by oral testimony at trial.

ANALYSIS [ 73 ] The Court will start with the first three counts of sexual assault and confinement. [ 74 ] The Québec Court of Appeal has stated on numerous occasions the definition of sexual assault and its essential components. [11] If the version of the complainant is to be retained and the defense rejected nor susceptible to raise reasonable doubt, it flows that the accused is to be found guilty. [ 75 ] As for the confinement, it would relate to the occurrence that she remembers the most when after a dispute with the accused, she wanted to leave the room, he refused, locked the door, pushed her on the bed and forced intercourse. [ 76 ] The conduct of the accused, if retained, does indeed establish that the infraction was committed [12] .

He did refuse that she leaves the bedroom, it impaired her freedom of movement by saying so to start with and by pinning her on the bed afterwards. We can also add that with the evidence presented, the infraction is committed regardless of an operative door lock or not or if the accused went to the door to lock it or not. [ 77 ] As to the third count of assault, slapping her on the bed goes beyond the inherent violence of sexual assault and constitute the use of force against the complainant without her consent.

A-The accused’s testimony [ 78 ] The accused stated in a general fashion that the relationship was plagued with control issue on her part and that he was occasionally assaulted by her. He also testified in cross-examination that arguments became physical on both sides because both cheated on each other after his release from prison and that he was also controlling towards her. He did not like when she was going out. [13] [ 79 ] On the specific of the first three counts, we have little apart from admitting that they had made love in the bedroom during their relationship and that the door lock was broken.

Later, in regard of all counts, he will refer to all the accusations as bullshit . [ 80 ] It could very well be that a complete denial can lead to the conclusion that the defense has not raised reasonable doubt. [14] [ 81 ] On the other hand, a judge may not reject an accused’s evidence simply because the accused denies the alleged offences and/or fails to respond with specific details of the alleged offences. [15] B-The complainant’s testimony [ 82 ] A few words to start with concerning some of the Crown’s arguments. [ 83 ] Crown’s proposition is that the Court should factor in that the complainant is a victim of domestic violence in assessing her

testimony. True, the accused did plead guilty in the past for assault against the complainant. And she denounces again the same type of abuse. As presented, the proposition would counter or explain the imperfections in her testimony. This could be true. But accepting this reasoning at face value with nothing to back it up is tantamount to create a new type of myth or stereotype. It also invites the Court to assess differently the complainant’s testimony when compared to the accused’s one. [ 84 ] There isn’t much debate in society that domestic violence can be traumatic for its victims and can leave after-effects.

The Court also noted that the complainant alluded rapidly near the end of her direct examination, after stating that she would prefer not to discuss her video statement, that she suffered from PTSD [16] , that she had to see a doctor, had nightmares, and must take medication. [ 85 ] Neither the complainant nor the parties pursued the matter afterwards.

We don’t know when this was diagnosed, what caused it, what medication, if any, the complainant is receiving and what effect, if any, it could have on her memory or perception of past events such as ours. [ 86 ] Trying to make inferences with so little information on both the proposed domestic violence victim status or PTSD would be speculation. [ 87 ] Therefore, the analysis of the complainant’s testimony is to be according to the usual adult criteria and non pas selon un critère moins exigeant, comme celui applicable aux témoignages des enfants. [17] [ 88 ] On that subject, it is also useful to remember that for every witness, including complainants, no presumption of credibility, sincerity, honesty, reliability, or veracity exist. [18] [ 89 ] In the recent decision of Foumani , [19] Justice Cournoyer wrote for the Court the following: [72] Cela dit, comme l’explique le juge Proulx dans l’arrêt Cedras : « [a]ucun texte de loi n'établit pour les juges [des faits] les critères qui servent à évaluer la crédibilité d'un témoin » [56] . [73] Plusieurs facteurs pertinents à l’évaluation de la crédibilité et de la fiabilité des témoins peuvent être dégagés de la jurisprudence [57] et de la doctrine [58] : 1) l'intégrité générale et l'intelligence du témoin; 2) sa capacité d'observation; 3) sa capacité de communiquer; 4) la fidélité de la mémoire; 5 ) l'exactitude de sa déposition; 6 ) sa volonté de dire la vérité de bonne foi; 7 ) sa sincérité, sa franchise, ses préjugés; 8 ) l’intérêt du témoin; 9 ) le caractère évasif ou les réticences de son témoignage; 10 ) le comportement du témoin avec la prudence requise; 11 ) la compatibilité du témoignage avec l'ensemble de la preuve, y compris la preuve confirmative; 12 ) l'existence de contradictions avec les autres témoignages et les éléments de preuve; 13 ) la plausibilité du témoignage; 14 ) la cohérence intrinsèque du témoignage. [74] Bien évidemment, ces facteurs ne sont pas exhaustifs. [75] Par ailleurs, il peut être utile de distinguer entre la crédibilité du témoignage et sa fiabilité [59] .

Dans l’arrêt G.F., la Cour suprême note que « [l]a jurisprudence insiste souvent sur la distinction entre fiabilité et crédibilité, assimilant la fiabilité à la capacité d’un témoin d’observer, de se souvenir et de raconter les événements avec précision, et faisant référence à la crédibilité comme étant la sincérité ou l’honnêteté d’un témoin » [60] . [76] La Cour suprême insiste toutefois pour préciser que les cours d’appel « devraient non pas prendre en considération le fait que le juge du procès a expressément utilisé les mots "crédibilité" et "fiabilité", mais plutôt se demander s’il s’est penché sur les facteurs pertinents qui se rapportent à la vraisemblance de la preuve dans le contexte factuel de l’affaire, notamment les préoccupations concernant la véracité et l’exactitude.

La [conclusion] du juge du procès d’accepter ou de croire le témoignage incriminant d’une plaignante comprend une appréciation implicite de la véracité ou la sincérité et de l’exactitude ou la fiabilité » [61] . (references omitted) [ 90 ] The complainant’s testimony does indeed raise questions at first glance: − The main event that she can recall and give details, which at first, was not identified as the first occurrence could very well be the first sexual assault when questioned later. − She testified that she can’t remember the date and the location of the first time that it occurred. − She doesn’t know if he had ejaculated, neither how it finished or what was said afterwards.

The same applies to the other occurrences. She can’t say if she stated on the video if he had ejaculated even if she had reviewed it two days prior to her testimony. − She can’t give any details for the other occurrences, apart that it took place and that she said each time why are you doing this and that she was uneasy to go along. This was also discussed outside the context of these sexual relations between them. − For the occurrence where her mother showed up at the bedroom door with a knife, we have nothing else.

How it went, what was said, how it ended is not provided. − She will admit that she stated on the video that on one occasion (the one that she can provide details with), she ended up liking it. She cannot say at trial why she said that, but indeed, she confirms at trial that on that occasion, she did like it. − She can’t say if the accused was sober or not. However, she did say that he had been sober on the video. − She mentioned 8 occurrences of sexual assault on the video and between 5 to 8 at trial. − She is unable to pinpoint when she did not pursue in Court the complaints that had led to accusations.

Il would be 2017. It is suggested that it could be 2019. She doesn’t know. It could be 2019.

[ 91 ] For reasons unexplained, she also wished not to be examined on the content of the video while saying on a couple of occasions that she had no memory of its content even though she had viewed it two days before her testimony. [ 92 ] The complainant did not come across as someone not willing to tell the truth. But when analysing point 2 to 5 outlined at par. 73 in Foumani , she fails on all count. We cannot factor in that she testifies years later in matters that would have occurred when she was young or a child. We cannot factor in either that all these imperfections all concern peripheral subjects.

Some are at the core of her testimony and at the core of the infractions. [ 93 ] Dates are not essential elements of the infractions, and it could be accepted that all sexual assault had the same pattern without necessarily going into fine details of each occurrence. [ 94 ] But it goes beyond that. [ 95 ] She said that she can’t recall the orders of assault, but that the first one was not the one that she can provide details with. Later she will say that it could very well be the first one.

She also testifies at another moment that she can’t recall when or where the first sexual assault took place while testifying previously that all of them took place in her bedroom. This is highly preoccupying. It is also highly unreliable. [ 96 ] Her memory is defective or at least evolutive on what she seems to remember to start with. And we must add the numbers of time when she simply didn’t remember at all.

At the risk of repeating, we have no explanation as to why her testimony is such if indeed there is one. [ 97 ] This is not to say that the testimony is to be rejected for lack of an expert testifying as to the complainant’s situation.

With respect to the complainant and simply for analogy purposes, the Court will refer to what Justice Moldaver of the Supreme Court said in Slatter . [20] [2] We would simply underline that when assessing the credibility and reliability of testimony given by an individual who has an intellectual or developmental disability, courts should be wary of preferring expert evidence that attributes general characteristics to that individual, rather than focusing on the individual’s veracity and their actual capacities as demonstrated by their ability to perceive, recall and recount the events in issue, in light of the totality of the evidence.

Over-reliance on generalities can perpetuate harmful myths and stereotypes about individuals with disabilities, which is inimical to the truth-seeking process, and creates additional barriers for those seeking access to justice. [ 98 ] Unfortunately for the complainant, the ability to perceive, recall and recount the events in dispute is lacking. [ 99 ] In MacIntosh , the Nova Scotia Court of Appeal said as follows: [21] [120] All trials are, to a certain extent, historical. They entail an exploration of the perception and recall of events that happened in the past.

In cases of sexual assault, absent forensic or other evidence, it is a resolution of the “he said – she said” scenario, but through the prism of the requirement that to convict, the credibility and reliability of the complainant’s evidence must be such that despite the denial by the accused, the guilt of the accused has been proven to the criminal standard of proof beyond a reasonable doubt. [ 100 ] Reverting now to W.D ., the accused denial and statement that it was bullshit is not believed and neither susceptible to raise a reasonable doubt considering the whole of the evidence.

But on the third step of analysis and however brutal the conclusion might be for the complainant; her testimony does not meet the criminal standard of proof beyond a reasonable doubt. [ 101 ] This conclusion applies for the first three counts.

C- The assault in Town A (count 4) [ 102 ] The accused did offer more evidence concerning that count in regard of having been there on numerous occasions with the complainant, their habits of partying and the drugs taken, that they had to sleep over on occasions and that he eventually cheated the complainant with A. and had a relationship with her to name a few subjects. [ 103 ] However, he never went in detail with the specific evening in question.

He never admitted, commented, or denied any of the evidence either provided by the complainant or A. concerning his abusive behavior or acts of violence allegedly committed. [ 104 ] Therefore, we are again, as with the first three counts, faced with a general denial in regard of the accusation with the comment that it is all bullshit. [ 105 ] Contrary to the first three counts, we have A. who corroborates in part the complainant’s testimony. [ 106 ] Defense is rightfully pleading the differences, if not contradictions, between the two witnesses. [ 107 ] The complainant’s testimony does indeed at time differ from A. : − She states that she was never present in the car in the backyard when A. testifies that she took refuge there at her suggestion and that she stayed there for quite a while. − She doesn’t relate physical violence for that part of the narrative, when A. says that he hit her in the car. − She states that she was naked after the last aggression when going back inside before she covered herself with a blanket.

A. testifies that she was wearing her underwear and a torned sweater when she came to her bedroom. − The aggression near the swings and the boat took place once A. and N. were inside after the accused promised to behave

according to the complainant when A. testifies that it took place before they went inside and that the promise came after the assault. [ 108 ] There is no debate that the versions differ. [ 109 ] Both agree however that verbal abuse started when the accused came back from the house after preparing drinks with A. and that physical violence followed. [ 110 ] The Court will address immediately the fact that the last assault (near the swing and boat) was not present in the written statement made by A. when met by the police. [ 111 ] Be it for a complainant or a witness, earlier statements are not rigid dogma shackles.

They can be commented, reviewed, withdrawn, or added to. The main issue afterwards to decide for the Court is as follows: are the previous statements and the testimony at trial so different that they become irreconcilable from each other? This is not the case. The Court accept A.’s testimony that it came back to her as she said and see no reason to exclude that part of her narrative. [ 112 ] As for the discrepancy between the two witnesses, the main one would be the complainant’s presence in the car.

For what took place at the end, both describe basically the same assault with A. being present while the complainant places her already inside at that moment. Both agree that promises were made by the accused that he would behave if left alone with the complainant. [ 113 ] They also corroborate each other on the fact that the accused was abusive at least verbally towards the complainant from the moment that he came back from the house after preparing the drinks with A.. [ 114 ] We are faced with perceptions that differs from the two witnesses.

Overall however, their recollections of the evening, the conduct of the accused when accusing the complainant of infidelity with N., the verbal abuse that followed and that it ended up in violence are highly consistent with each other. [ 115 ] We also must factor in that all involved had taken drugs. While no evidence was presented as to the effects of the drugs taken, if any, on their memory we cannot be blind to this evidence either.

A. herself factors in the initial dispute the effect of both the drugs and alcohol. [ 116 ] We also must factor that the accused did not provide any contradictory evidence on anything that took place that evening. He has no burden to do so, obviously. And his denial is not conclusive to reject his testimony for that simple reason as we have seen previously.

But the fact remains that only the general qualification of bullshit remains in regard of the evidence presented. [ 117 ] The Court retains the complainant and A. testimonies that an assault took place near the boat in the backyard and that A. was witness to it notwithstanding the perception that the complainant thought that A. and N. were already inside. On that subject, we note that immediately before saying that she would rather not discuss the content of the video, it was pointed out that she had said in the video that she was hit in the face and the two others went back in the house after.

She didn’t recant that statement. [ 118 ] This settle the issue, regardless of if the complainant had been in the car and hit previously or not. The Court also retains the complainant evidence that she was hit again once in the house for the night. [ 119 ] Bodily harm is defined at

section 2 of the Criminal Code : bodily harm means any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature; ( lésions corporelles ) [ 120 ] The complainant testified to bruises on both sides of her neck the next day and that they stayed for a while. Her neck and throat hurt that night. A. relates bruises on her legs, hand marks on her throat and a swollen face.

There is no debate that such consequences constitute bodily harm, including losing momentarily awareness. [22] [ 121 ] In regard of the whole of the evidence, the accused’s denial is not believed and neither does it raise a reasonable doubt. And, as explained above, the Court accepts the complainant and A. testimonies concerning what took place in the backyard once they left the immediate surrounding of the fire pit. [ 122 ] Crown has met its burden on the essential elements of count 4.

FINAL CONSIDERATIONS AND CONCLUSION [ 123 ] It could look at first glance, when reading the judgment, that the accused was acquitted of the first three counts for lack of corroboration of the complainant’s testimony since corroboration is at play with the fourth count. This is incorrect.

The Court is aware that the evidence of a single witness is sufficient to support a conviction. [23] It was explained why the evidence could not lead to conviction for the first three counts and it had nothing to do with lack of corroboration. [ 124 ] As part of the narrative of both the complainant and A., as well as the accused, it came to light that the accused had prior convictions or accusations brought against him by both. The evidence also referred to C., a third women who also laid charges against the accused.

She was also a friend of the complainant who was coming to her to cry on her shoulder when separated from the accused. [ 125 ] In short, the Court became aware of what is tantamount to evidence of bad reputation or evidence of the accused propensity to mistreat his intimate partners, both of which would be inadmissible evidence in the way they were presented.

Suffice to say that the Court did not factor in this evidence in its analysis and conclusions. [ 126 ] There is also no evidence, save if one is to speculate, that the complainant and A. would have colluded together in regard of their testimony or fabricated it. The simple fact that at one point the complainant communicated with A. to verify if it was OK to give her

name as a potential witness for what happened in her backyard in Town A cannot lead to such conclusions. There is no reason to dismiss their testimonies that they are not friends anymore, that they never compared their recollections of that evening and that the contact between them was to simply validate for the complainant if A. would accept to be listed as a witness in the present proceedings. There is no need to pursue the analysis in that direction for the simple reason that there is no air of reality to such allegations.

FOR ALL THESE REASONS, THE COURT: [ 127 ] ACQUIT the accused on count 1-2-3; [ 128 ] DECLARE the accused GUILTY on count 4. __________________________________ RICHARD MARLEAU, J.C.Q . Me Maude Lambert Counsel for criminal and penal prosecutions For the Prosecutor Me Bruno Bouthillier For the accused Dates of hearing: March 9-10-14, April 5, 2023