2020 QCCA 109, 2020 QCCA 109

Isaacs c. R. 2020 QCCA 109 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No : 500-10-006858-185 ( 500-01-128548-150 ) MINUTES OF HEARING THE PUBLICATION BAN IS STILL IN FORCE ON ANY INFORMATION THAT COULD IDENTIFY THE VICTIM (s. 486.4 Cr.C .) DATE: January 17, 2020 CORAM: THE HONOURABLE MANON SAVARD, J.A. PATRICK HEALY, J.A. BENOÎT MOORE, J.A.

APPLICANT COUNSEL Vincent Isaacs Mtre Léo Fugazza ( Absent) RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre William Lemay ( Director of Criminal and Penal Prosecutions ) ( Absent) On appeal from a judgment rendered on August 9 th 2018 by the Honourable Serge Delisle of the Court of Quebec , District of Montreal . NATURE OF THE APPEAL: Guilt – Sexual assault – Amended Motion for Leave to Appeal referred to the Panel. Clerks at the hearing : Anne-Alexandre Dumont and Amanda Kaneza Courtroom: Antonio-Lamer HEARING

15:30 Commencement of the hearing. Continuation of the hearing held on January 16 th , 2020. The parties were excused from appearing in Court. BY THE COURT : Judgement see page 3. Conclusion of the hearing. Clerks at the hearing : Anne-Alexandre Dumont and Amanda Kaneza JUDGMENT THE PUBLICATION BAN IS STILL IN FORCE ON ANY INFORMATION THAT COULD IDENTIFY THE VICTIM (s. 486.4. Cr.

C.) [ 1 ] This is an appeal against a finding of guilt by the Court of Quebec [1] on one count of sexual assault. [2] In addition to his notice of appeal, a motion for leave to appeal on questions of fact was deferred to this panel . [ 2 ] The issues before the Court are: 1) whether the trial judge gave sufficient reasons regarding the mens rea of the offence of sexual assault; 2) whether he made a reviewable error by misapprehending the testimony of a witness; and 3) whether he made a reviewable error in the evaluation of the credibility of that witness.

The second and third are questions of fact that may be considered together. [ 3 ] The prosecution case was simple. The appellant was with the complainant in her bedroom. She fell asleep. She woke when she felt a complete vaginal penetration with a penis. She pushed the person away. She could not and did not consent to this sexual activity. She identified the appellant as the person who had performed this act.

The appellant’s case was that he performed no such act. [ 4 ] The trial judge concluded that the appellant had penetrated the complainant’s vagina while she was asleep and that he did so without her consent to this activity: Having considered the evidence as a whole, I accept the testimony of the complainant and believe that once she fell asleep, and since she was not only drunk, but intoxicated, the accused saw an opportunity, did move behind her, slid the complainant’s underwear aside and penetrated her. […] Therefore, intoxicated or not, because the complainant was sleeping when she was penetrated, she could not logically consent to the penetration. [ 5 ] The appellant does not challenge these conclusions on appeal.

He challenges the sufficiency of the judge’s reasons with respect to the element of mens rea in the actus reus of the offence. [ 6 ] The appellant does not argue that the judge misapprehended the substantive elements of sexual assault and indeed, in the absence of reasons to the contrary, the judge is presumed to know the law. There are no such reasons in this case. While the judge does not address literally or explicitly his conclusion with respect to the element of mens rea in the commission of the offence, literal explicitness is not the test of the sufficiency of reasons for the purposes of appellate review.

The test is whether the reasons make clear that the judge reached a conclusion on the essential elements of the offence and explain sufficiently the basis on which that conclusion was reached. The sufficiency of reasons can be established if the reasons implicitly, but unmistakably, identify the relevant conclusions and their premises in the evidence and submissions. [3] That is the case here. [ 7 ] The logic and the substance of the judge’s reasons are clear.

He concluded that beyond reasonable doubt, and despite his denial of the act, the appellant penetrated the vagina of the complainant while she slept and in the absence of her consent to this sexual activity. This was the only act in question; the evidence did not prove other sexual acts prior the penetration. The act could not have been an accident. It could not have been done with a mistaken belief in consent to that specific act. It could only be explained in one of three

ways. First, it was the appellant’s intention to perform this act in these circumstances. Second, the appellant knowingly performed this act in these circumstances. Third, the appellant recklessly performed this act in these circumstances. Any one of these explanations follows ineluctably from the judge’s conclusion that the appellant penetrated the complainant while she was sleeping and in the absence of consent to the act of penetration. And any one of them is sufficient to complete proof of the elements of the offence.

It is thus unarguable that the judge was satisfied beyond reasonable doubt that the actus reus of the offence was committed with the necessary mens rea . Perhaps it would have been better for the judge to be clearer but in the circumstances of the case there is no ambiguity concerning his conclusions. [ 8 ] This ground of appeal fails. [ 9 ] The second and third questions are purely questions of fact on which the applicant seeks leave to appeal. In the absence of a palpable and overriding error, the Court will not intervene. In this case there are no grounds that demonstrate palpable and overriding error.

Accordingly, the Court will grant the motion for leave but dismiss these grounds on questions of fact. FOR THESE REASONS, THE COURT: [ 10 ] GRANTS the motion for leave to appeal on questions of fact; [ 11 ] DISMISSES the appeal; [ 12 ] ORDERS the Appellant to report to the prison authorities no later than January 21, 2020 at 4:00 p.m. MANON SAVARD, J.A. PATRICK HEALY, J.A. BENOÎT MOORE, J.A.