2021 QCCA 1619, 2021 QCCA 1619

R. c. Strapatsas 2021 QCCA 1619 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007324-203 ( 500-01-129694-151 SEQ. 002) MINUTES OF HEARING WARNING : An order under ss. 486.5 of the Criminal Code restricting the publication of any information that could identify the civilian witnesses and the person seen in the KGB video has been issued in first instance. DATE: October 29, 2021 CORAM: THE HONOURABLE MARK SCHRAGER, J.A. STEPHEN W. HAMILTON, J.A. GUY COURNOYER, J.A.

APPELLANT COUNSEL HER MAJESTY THE QUEEN Mtre ISABELLE MICHAUD ( Director of Criminal and Penal Prosecutions ) RESPONDENT Dimitrios Strapatsas PRESENT AND UNREPRESENTED On appeal from a judgment rendered on March 2 nd , 2020 by the Honourable Paul Chevalier of the Court of Quebec, Criminal and Penal Chamber , District of Montréal . NATURE OF THE APPEAL: Acquittal – Interfering – Article 139(2) of the Criminal Code . Clerk at the hearing : Anne Dumont Courtroom: Pierre-Basile-Mignault HEARING

9:34 Commencement of the hearing. Continuation of the hearing held on October 26, 2021 The parties were excused from appearing in Court. BY THE COURT : Judgment – see page 4. Conclusion of the hearing.

Anne Dumont, Clerk at the hearing JUDGMENT WARNING : An order under ss. 486.5 of the Criminal Code restricting the publication of any information that could identify the civilian witnesses and the person seen in the KGB video has been issued in first instance. [ 1 ] The Crown seeks to overturn a judgment rendered on March 2 nd , 2020 by Chevalier J. of the Court of Québec, Criminal and Penal Division, which acquits the respondent on a count of obstruction of justice. [ 2 ] The respondent was first convicted on October 24 th , 2017. [ 3 ] Our Court ordered a new trial because of the failure of the judge at the first trial to consider important evidence that was favourable to the respondent and that contradicted the Crown’s principal witness. [1] [ 4 ] The charges stem from the posting of a video on YouTube to discourage a witness from testifying for the prosecution against John Boulachanis who was charged with murder. [ 5 ] The respondent, Boulachanis’ lawyer at the time, paid $200 to the person who posted the video at the instigation of Boulachanis. [ 6 ] She testified at trial for the Crown.

Beside the respondent, she was the only witness who testified to the contents of the communications between them.

Her evidence was relevant and crucial on the key issue, and the parties acknowledged that her credibility was pivotal. [ 7 ] The key issues at trial were whether the respondent was aware of the plan to post the video online, whether he assisted his client in doing so and whether he paid the person who posted the video for having done so. [ 8 ] At the second trial, the judge disbelieved the respondent’s version and concluded that it even failed to raise a reasonable doubt, which is not conclusive of the respondent’s guilt. [2] [ 9 ] The trial judge then considered if the inconsistencies in the testimony of the Crown witness raised a doubt about its credibility and reliability.

He concluded that he could not rely on her testimony to establish the respondent’s guilt beyond reasonable doubt, in light of the unexplained contradictions between her version of events and the call logs of her phone. [ 10 ] The Crown alleges that the trial judge provided insufficient reasons at the third stage of the W.(D.) analysis and failed to consider all of the evidence in determining whether it had met its burden. [ 11 ] In essence, the Crown argues that the trial judge used a piecemeal approach in making his findings with respect to the credibility and reliability of the witness without taking into account all the evidence relevant to the issue including: 1) the fact that she only interacted with the respondent, 2) she had access to other phones and; 3) she had knowledge of the colour of the respondent’s car. [3] [ 12 ] In a Crown appeal under s. 676(1)

a) of the Criminal Code , the intervention of our Court is limited to a question of law. [4] [ 13 ] It is well established that “the Crown cannot appeal merely because an acquittal is unreasonable”. [5] [ 14 ] One issue is whether the trial judge’s reasons “provided an adequate foundation for the Crown to exercise its limited right of appeal”. [6] [ 15 ] In R. v. Walker , the Supreme Court explained the narrow width of a Crown appeal trying to argue that the trial judge’s reasons

were insufficient: [W]hile the trial judge’s duty to give reasons applies generally to acquittals as much as to convictions, the content of the reasons necessary to give full effect to the right of appeal is governed by the different issues to which the reasons are directed on an acquittal (perhaps no more than the basis of a reasonable doubt) and a conviction (factual findings showing the pathway to conviction, explaining why significant elements of the evidence are accepted, rejected or fail to raise a reasonable doubt).

Caution must be taken to avoid seizing on perceived deficiencies in a trial judge’s reasons for acquittal to create a ground of “unreasonable acquittal”[.] [7] [ 16 ] The factum filed by the appellant undeniably establishes no significant impediment to the exercise of its right of appeal. However, in our view, the appellant is merely arguing that the trial judge should have come to a different conclusion. [ 17 ] An important difference exists when assessing insufficient reasons after an acquittal. In R. v.

Walker , Binnie J. underlined the fact that the accused benefits from the presumption of innocence and hence any reasonable doubt: [8] A major difference between the position of the Crown and the accused in a criminal trial, of course, is that the accused benefits from the presumption of innocence. […] [W]hereas a conviction requires the prosecution to establish each of the factual elements of the offence beyond a reasonable doubt, no such requirement applies to an acquittal which, unlike a conviction, can rest simply on the absence of proof.

The trial judge may just conclude that one or more of the elements of the offence was “not proven” to the criminal standard.

This difference does not excuse a trial judge from failure to provide intelligible reasons for an acquittal, but it necessarily informs an assessment of whether the reasons are so deficient as to preclude effective appellate review. [9] [ 18 ] Here, the Crown seeks to bolster its argument by bootstrapping it to the alleged failure by the trial judge to consider the totality of the witness’ evidence. [ 19 ] Furthermore, when assessing, as argued by the Crown, whether the judge failed to consider all the evidence relating to the ultimate issue of guilt or innocence proper regard must be paid, as stated above, to the limited right of appeal from an acquittal: [32] A trial judge is not required to refer to every item of evidence considered or to detail the way each item of evidence was assessed.

As Binnie J. pointed out in Walker , “Reasons are sufficient if they are responsive to the case’s live issues and the parties’ key arguments. Their sufficiency should be measured not in the abstract, but as they respond to the substance of what was in issue” (para. 20). Walker also clearly holds that the adequacy of a trial judge’s reasons is informed by the limited grounds for Crown rights of appeal from acquittals (paras. 2 and 22).

As Binnie J. succinctly put it, “Caution must be taken to avoid seizing on perceived deficiencies in a trial judge’s reasons for acquittal to create a ground of ‘unreasonable acquittal’ which is not open to the court under the provisions of the Criminal Code ” (para. 2). [10] [ 20 ] We cannot presume that the trial judge failed to consider all the evidence in reaching his decision. As underlined in R. v.

Walle “unless the reasons demonstrate that [a consideration of all the evidence in relation to the ultimate issue] was not done, the failure to record the fact of it having been done is not a proper basis for concluding that there was error in law in this respect”. [11] [ 21 ] Whether one disagrees with the weight attached to the inconsistencies, it cannot be seriously argued that the judge failed to consider the totality of the evidence, including the testimony of the prosecution witness. [ 22 ] The trial judge reviewed the evidence extensively when he conducted the first two stages of the W.(D.) analysis.

He cannot be said to have forgotten the evidence at the final step of the assessment. [ 23 ] The trial judge’s focus on the credibility of the witness in determining whether the Crown had met its burden was obviously logical in the context of the case. It is unsurprising and correct that he did so because it was the very reason why our Court ordered a new trial. [12] [ 24 ] Reasonable doubt applies to both credibility and reliability findings. [13] As noted by the Ontario Court of Appeal in R. v.

Hoohing : “[t]he evidence of any witness, […], may be believable standing on its own, but when other evidence is given that is contradictory, or casts doubt on the accuracy or reliability of the witnesses’ evidence, that evidence may no longer be believable.” [14] [ 25 ] This was exactly the situation in this case.

The trial judge could properly acquit the respondent because the contradictions raised doubt on the witness’s version about the unfolding of events, her interaction with the respondent, what he told her and the reason why he gave her the $200 payment. [ 26 ] While the trial judge’s reasons at the third stage of W.(D.) are brief, when they are read in the context of the judgment as a whole, they are responsive to the issues and the basis of the acquittal is clear, contrary to the situation in R. v.

L.M. [15] a case relied upon by the Crown. [ 27 ] In essence, the Crown is asking us to “parse the trial judge’s reasons in a search for error” [16] despite the Supreme Court’s admonition “against appellate courts transforming their opposition to a trial judge’s factual findings and inferences into attributed legal errors”. [17] [ 28 ] The appellant did not establish any palpable and overriding error in the appreciation of facts by the trial judge. [ 29 ] The prosecution invites us to morph a factual disagreement into a legal error. We decline to do so. FOR THESE REASONS, THE COURT: [ 30 ] DISMISSES the appeal.

MARK SCHRAGER, J.A. STEPHEN W. HAMILTON, J.A. GUY COURNOYER, J.A.