2021 QCCQ 6594, 2021 QCCQ 6594

R. c. Vaknin 2021 QCCQ 6594 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL «Criminal Division» No: 500-01-181355-188 DATE: July 8, 2021 ______________________________________________________________________ BY THE HONOURABLE FLAVIA K. LONGO, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v. NISSIM VAKNIN Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ NOTE: AN ORDER HAS BEEN MADE PURSUANT TO CRIMINAL CODE

SECTION 486.4 PROHIBITING THE PUBLICATION OF ANY INFORMATION THAT COULD IDENTIFY THE COMPLAINANT IN THIS MATTER. [ 1 ] The accused is facing charges of sexual assault, confinement and kidnapping in relation to the complainant C.D.G. 1. OVERVIEW [ 2 ] The parties were unknown to one another at the time of the events. As the complainant walked home after a night out with friends, she was approached by the accused who was driving a minivan. [ 3 ] Given her state of intoxication, she accepted to enter his vehicle since she thought that the accused would be driving her home.

During their time together in the vehicle, several incidents occurred where the accused touched the complainant in a sexual manner. [ 4 ] The complainant ascertains that she never consented to any of the sexual activity. The accused states the contrary and submits that she consented. If the Court concludes that she did not consent, he advances that this is a case of honest but mistaken belief in communicated consent. [ 5 ] The prosecution also charged the accused with kidnapping and unlawful confinement. The defence submits that these accusations are unwarranted. 2.

ISSUES [ 6 ] Did the complainant consent to the sexual activity with the accused? [ 7 ] If she did not, did the accused have an honest but mistaken belief that she communicated consent to the sexual activity? [ 8 ] Did the accused kidnap and forcibly confine the complainant during the course of the events? 3. CONTEXT 3.1. The prosecution’s evidence 3.1.1. The complainant [ 9 ] At the time of the events, the complainant was 27 years old and a consultant in business strategies. She testified that on the

evening of August 3 rd , 2017, she met her father at Ha restaurant in Old Montreal at 9 pm for dinner. During the course of the evening, they shared a bottle of wine. At 11:30 pm, two of her friends arrived at the restaurant. The trio walked to a bar close by called Fly Gin and her father went home. [ 10 ] That evening, she wore loose high-waisted black shorts, a loose white top that uncovered her shoulders and black heels. She also wore a white bra and underwear. [ 11 ] At the bar, the complainant and her friends danced and drank 4 or 5 vodka sodas and 2 or 3 shooters.

The complainant also consumed some cocaine intranasally that her friend had brought. [ 12 ] Before taking the cocaine, she felt a bit drunk but she was in a festive mood and having a nice evening. [ 13 ] She stayed there for about two hours and left the bar alone on foot around 2:15 am since her home was a 10-minute walk away.

She was intoxicated but felt fine to go back to her place. [ 14 ] As she proceeded towards her residence, she was approached by a white van at the corner of St-Paul and McGill. [ 15 ] The accused lowered his window and asked her if she requested an Uber. [ 16 ] She responded yes to his question since she had a habit of calling Uber to go home after late nights. [ 17 ] She entered his vehicle and asked him if he had her address. He then locked the car door and proceeded in the right direction towards her residence. At the time, she lived at [...] in Montreal.

In her testimony, the complainant did not state if the accused gave her a response when she asked him if he had her address. [ 18 ] She sat in the front seat of the vehicle because there were objects in the back and those seats were lowered. [ 19 ] As they drove, she noticed that the accused did not turn on her street so she asked him why he wasn’t taking her home. He then gave her a 100$ bill and asked her to stay in the car with him for fifteen minutes because she is beautiful and he wanted to spend some time with her.

At this time, he stroked her face with his hand. [ 20 ] She did not say anything and understood that she was not in an Uber and that she was in danger. [ 21 ] She put the 100$ in her bag and noticed that the accused was heading towards Montreal’s South Shore.

As soon as she noticed that he did not stop at her home, she started to text message her boyfriend with her right hand while hiding her cellular telephone between her car seat and door. [ 22 ] In the text messages to her boyfriend, she mentioned that she was afraid and in danger because she was being driven to the South Shore by a molester. [1] She also tried to call her father. [ 23 ] During that time, the accused put his right hand in her sweater as if he was entitled to do so because he paid for it. [ 24 ] He put his hand in her bra and touched her breasts as they drove.

They also passed by some police officers that had their car lights on. At that moment, he told her to put her belt on, to stay calm and not to say anything since they were just having fun and going for a ride. [ 25 ] After they passed the police officers, the accused stroked her arms, breasts, face and neck. [ 26 ] At 2:30 am, he drove to a wooded area on Île Sainte-Hélène. It was very dark outside.

He turned off his car as well as the lights and gave her another 100$ bill. [ 27 ] He asked her to show him her vagina so she moved her shorts and underwear. [ 28 ] He touched her, looked at her and put his fingers in her vagina. He also made back and forth motions with his fingers while they were in her vagina. [ 29 ] He then asked if she would accept 1000$ to have sex with him. She does not recall if she told him that she did not want the 1000$ but she did not receive 1000$ from the accused. [ 30 ] He put his body on top of her, kissed her, licked her and touched her.

He spoke about his penis and asked her to touch him but she did not participate. She did not touch him at all. She froze and she did not want the situation to worsen and turn into a rape. She was like a sex doll and she just wanted it to be over. [ 31 ] They stayed near the wooded area for 10 to 15 minutes. She could not take it anymore and she asked him if they could leave.

He did not push for more but gave her another 100$ to take a detour because he wanted to spend some more time with her in his vehicle. [ 32 ] As they drove, he told her that he wanted to be a sugar daddy and that he would give her 1000$ per week for sexual favors. [ 33 ] They ended up in the St-Henri district and she recognized the location. She asked him to drop her off at the corner which she believed was on St-Patrick Street.

She exited the vehicle and tried to take a picture of his license plate [2] but he left quickly and the picture that she snapped was blurred. [ 34 ] During the incident, that lasted about 40 minutes, they spoke about her employment, the fact that the accused was wealthy, and that he was looking for a sugar baby.

[ 35 ] She took a taxi home, explained what happened to her boyfriend and the police were called. When they arrived, she told them what happened and gave them the 300$ [3] that she had received from the accused. [ 36 ] She was brought to Hôtel-Dieu de Montréal Hospital where she underwent a rape kit. In her testimony, she explained that the day after the events, she had pain in her vagina. [ 37 ] On August 4 th , 2017, she made a sworn videotaped statement to Detective-Sergeant Boisvert. 3.1.2. The forensic toxicologist [ 38 ] Ms.

Edith Viel is a forensic toxicologist at the Laboratoire de sciences judiciaires et de médecine légale (hereinafter LSJML ). She testified as an expert witness and explained that she received the blood samples that had been taken from the complainant on August 4 th , 2017 at 6 am. [ 39 ] In a report dated November 14 th , 2017 [4] , she concluded that the complainant’s blood contained ethyl alcohol at a level of 185 mg per 100 ml of blood as well as cocaine metabolite. [ 40 ] During her testimony, Ms. Viel was asked to perform a back calculation in order to determine the complainant’s alcohol level at 2 am.

In doing so, she used an average elimination rate of 15 mg per 100 ml of blood per hour and she concluded that at 2 am, her blood alcohol level was 245 mg of alcohol per 100 ml of blood. [ 41 ] She explained that when people register an alcohol level of 245 mg per 100 ml of blood, they are typically in a state of inebriation which affects their cognitive, intellectual, sensory and mobility functions. [ 42 ] More specifically, they will display symptoms with respect to inhibition, their judgment or comprehension, their motor coordination as well as a longer reaction time.

There will be disorientation and confusion, vertigo, dizziness, altered sensation and speech difficulties. [ 43 ] These are effects that can be generally observed but they can vary from one individual to another depending on the way that the alcohol was consumed, the tolerance of the person as well as their environment. [ 44 ] When the alcohol level is 245 mg per 100 ml of blood and it is combined with cocaine, the effects are difficult to predict since it depends on the dose consumed of each substance as well as the times that the substances were taken. [ 45 ] Both substances can influence a person’s cognitive, intellectual, motor coordination and sensory functions. [ 46 ] The consumption of cocaine stimulates the nervous system causing euphoria, increased energy, agitation in mobility, nervousness and anxiety.

Alcohol causes drowsiness so an intake of cocaine can diminish the depressive effect of the alcohol. [ 47 ] It is possible that one of the substances will have a greater effect than the other. 3.1.3. The forensic biologist [ 48 ] Ms. Martine Bazinet is a forensic biologist at the LSJML . She testified as an expert witness and conducted testing on samples received in the present file. [ 49 ] She concluded the following in her report dated January 10 th , 2018 [5] : • The skin sample from the complainant’s breast revealed the presence of saliva coming from a male DNA profile that was suitable for comparison.

This DNA profile was named “unknown 1”. No sperm was found; • The skin sample from the complainant’s vulva revealed the presence of slightly positive saliva that was too weak to obtain a male DNA profile. No sperm was found; • The underwear belonging to the complainant was tested but no sperm was found and no male DNA was found; • Samples were extracted from inside the complainant’s bra cups and three different DNA profiles were obtained. The profiles of the complainant and the “unknown 1” could not be excluded from this combination of profiles. [ 50 ] In her report dated April 29 th , 2019 [6] , Ms.

Bazinet explains having received a cigarette butt smoked by the accused. This cigarette butt was received by the lab on May 17 th , 2018. The DNA was insufficient to obtain a proper genetic profile. She advised the investigator in the file and another cigarette butt smoked by the accused was given to her on July 25 th , 2018 from which she managed to extract a profile that enabled her to confirm that the profile titled “unknown 1” corresponded to the profile of the accused. [ 51 ] Further to this, she received a buccal swab sample taken from the accused on February 14 th , 2019 for comparison purposes.

She concluded that the saliva extracted from the complainant’s breast came from the accused. Furthermore, she was able to conclude that the samples obtained from the bra cups support the inclusion of the DNA of the complainant and the accused. [ 52 ] Ms. Bazinet also prepared a report dated November 18 th , 2019 [7] where she performed additional testing on the sample from the complainant’s vulva. She established a “Y” profile belonging to the accused based on his buccal swab that was suitable for comparison.

This profile corresponds to the one of the men in the paternal line of the accused such as fathers, brothers or sons and its frequency in the male Caucasian population of the Province of Quebec is 1 in 525.

[ 53 ] In practical terms, this supports the position that the accused or any other man in his paternal line are the source of the DNA profile extracted from the saliva taken from the vulva of the complainant. 3.2. The defence evidence [ 54 ] At the time of the events, the accused was 59 years old. He testified that he was at a bar on St-Paul Street in Old Montreal in the early hours of August 4 th , 2017. He did not consume any alcohol and went there to have fun. He was divorced at the time. [ 55 ] When he left the bar, he drove on McGill Street.

As he arrived at the corner of William Street, he saw a drunk woman walking so he offered her a lift. [ 56 ] She got close to his van and since the passenger window was open, she looked into the back of the van and then got into the vehicle where she sat next to the accused in the front passenger seat. [ 57 ] Once she entered his vehicle, the accused shook her hand and told her that his name is Nissim. She replied that her name is C..

He did not understand her name so he asked her again. [ 58 ] He was driving his daughter’s white Chrysler Town Country 2008 van and when he put it in gear, the doors locked automatically and made a loud noise after driving a few meters. During his testimony in chief, the accused tendered in evidence a video [8] of himself driving his daughter’s vehicle which is the same vehicle that he drove on the night of the events. The video was taken during the summer of 2020.

In the video, the accused puts the van in motion and after a few seconds, the doors lock automatically. [ 59 ] The accused explained that he shook hands with the complainant. She then took his hand and put it underneath her thigh. He found it strange but continued to drive anyway. He asked her where they were going and she responded to keep going straight because her apartment was very close. At that time, they were on William Street. [ 60 ] They started talking about how their evening went, she told him that she had fun and that she drank.

He thought to himself that she was charming and in a good mood but drunk. [ 61 ] When he crossed the intersection of William Street and Robert-Bourassa, they arrived in front of her building shortly thereafter. They continued to converse about her evening for about 4 to 5 minutes at which point she asked him to stay with her. She told him that he was very nice and that she did not want to go to into her apartment because she did not want her boyfriend to see the way she looked. [ 62 ] The accused did not want to stay with her but she took his hand and placed it on the upper part of her torso near her neck.

At that point, he understood that she was in a good mood and he became attracted to the situation. [ 63 ] She was wearing a shirt with an elastic that fell almost to her nipples so he asked if he could touch her. She said ok and she pulled down one side of her shirt. Her breast was exposed so he licked his fingers with his tongue and touched her breast and nipple. [ 64 ] He told her that he was ready to stay with her but not in front of the building since he feared that her boyfriend would see them.

He was not familiar with the area where she lived so he asked her if they could head to the casino since he knew that location. She said yes. [ 65 ] He turned on his car and headed towards the casino. During the trip, he took out 100$ from his pocket and gave it to the complainant. There was no discussion about the money and she took it and put it in her purse. [ 66 ] The parties spoke during the car ride and the accused asked her to put her seat belt on.

Initially, she did not comply with his request but she later changed her mind when she saw the police parked near the exit ramp situated near Highway 10. [ 67 ] During the ride to the casino, he touched her nipple. Instead of taking the exit to go to the casino, he took the exit leading to Île Sainte-Hélène. [ 68 ] He parked the car and asked if she would show him her “pussy”. [9] Her shorts were ample so she moved them towards the right side. He was able to see her vagina and asked if he could touch it. She said ok. [ 69 ] He wet his finger with his tongue and put it into her vagina.

He also touched her nipple with his mouth. Then, he explained that her behaviour changed and became strange. She asked him to go home so he immediately stopped what he was doing and started the car right away. He gave her another 100$ and she placed it in her purse. There was no discussion about this money. [ 70 ] Before that moment, she had been in a good mood, she was charming, standing straight and had a good posture.

When she told him that she wanted to go home, he noticed that her head was down, her eyes were looking downwards and her posture had changed dramatically. [ 71 ] The accused felt that something was wrong with her. As he drove towards her home, he never touched her again. When he was on Wellington Street, he had to take Peel Street to reach her apartment and she stopped him and said that she no longer wanted to go to her home. She wanted to go to a friend’s house who lives on Notre-Dame Street West. [ 72 ] Her state had deteriorated and he did not like the fact that she asked him to drive her to her friend’s home.

Despite his concern, he took her there and dropped her off at the corner of Sir George-Étienne Cartier Square and Notre-Dame Street. Before being dropped off, she changed her mind again and asked him to take her home but he refused. There was a taxi close by so he gave her 100$ to pay for it and she left.

4. THE LAW 4.1. Sexual assault [ 73 ] The offence of sexual assault consists of an assault as defined in section 265 (1) of the Criminal Code that is committed in circumstances of a sexual nature where there is a violation of the sexual integrity of the complainant. [10] The actus reus [ 74 ] Three elements must be proven beyond a reasonable doubt in order for the actus reus of the offence to be established: (

i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. [11] [ 75 ] In the present matter, the touching and the sexual nature of the contact are not in issue as demonstrated by the accused’s version given at trial. It is the absence of consent that is at the heart of the debate. Consent is defined as the voluntary agreement of the complainant to engage in the sexual activity in question. [12] [ 76 ] This voluntary agreement refers to a consent that is conscious and that stems from the will of the complainant that is given freely.

In order for the consent to be valid in law, it requires the complainant to have a conscious, operating mind, capable of granting, revoking or withholding consent to each and every sexual act. [13] [ 77 ] Furthermore, the consent requires the complainant to provide actual active consent throughout every phase of the sexual activity [14] and she must agree to the specific physical sex act.

This means, for example, that an agreement to sexual touching on one part of the body is not an agreement to all sexual touching. [15] [ 78 ] In the context of the actus reus of the offence, consent means that the complainant in her mind wanted the sexual touching to take place. [16] It is assessed subjectively and determined by reference to the complainant’s internal state of mind toward the touching, at the time it occurred. [17] This is why the term “subjective consent” is preferred. [18] [ 79 ] The accused is entitled to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place.

If the court believes the complainant that she subjectively did not consent, the Crown has discharged its burden to prove the absence of consent. [19] [ 80 ] However, the presence of subjective consent, or a reasonable doubt as to subjective consent, does not necessarily end the matter and result in an acquittal. There is a second aspect to consent. Subjective consent must also be effective as a matter of law, i.e., whether the objective consent has been vitiated – deemed of no force or effect. [20] [ 81 ] The distinction is subtle, but important.

A factor that prevents subjective consent must be linked to what subjective consent requires.

Conversely, a factor that vitiates subjective consent is not tethered to the conditions of subjective consent and must find footing and justification in broader policy considerations. [21] [ 82 ] Incapacity prevents rather than vitiates subjective consent. [22] For a complainant to be capable of providing consent, they must be capable of understanding four things: 1- the physical act; 2- that the act is sexual in nature; 3- the specific identity of the complainant’s partner or partners; and 4- that they have the choice to refuse to participate in the sexual activity. [23] [ 83 ] If the Crown proves the absence of a single factor beyond a reasonable doubt, then the complainant is incapable of subjective consent at the actus reus stage.

Consequently, there is no need to consider whether any consent was effective in law because there would be no subjective consent to vitiate. [24] [ 84 ] The capacity to consent requires a higher level of understanding than the capacity to withhold consent because the latter is established by a complainant’s capacity to understand any of the necessary factors whereas the former is a cumulative assessment requiring the degree of understanding necessary to appreciate all the conditions of subjective consent. [25] [ 85 ] Subjective consent requires both that the complainant was capable of consenting and did agree to the sexual activity.

These two aspects do not need to be considered in any rigid order. [26] [ 86 ] Whether the complainant remembers the assault does not answer the incapacity question one way or another. The question is whether the complainant understood the sexual activity in question and that she could refuse to participate. [27] Acquiescence is not consent. [28] The mens rea [ 87 ] The mens rea of sexual assault is established when the following two elements are proven beyond a reasonable doubt: (

i) intention to touch, and (ii) knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched. [29] [ 88 ] In the present matter, the first element is not in issue since the accused recognized the intention to touch. The issue here revolves around the second element, the notion of consent, which is to be considered from the point of view of the accused. [30]

[ 89 ] The prosecution must demonstrate beyond a reasonable doubt that the accused knew that the complainant did not consent to the sexual acts in question or that he was wilfully blind or reckless in acting on an assumption of consent without receiving or eliciting consent to the sexual activity. [ 90 ] The mens rea of sexual assault is established not only if the accused ignores a “no” from the complainant, but also if he is aware of an absence of a clear “yes” to the act. [31] [ 91 ] Where the evidence indicates that the complainant did not consent to the sexual activity that took place, the defence of mistake of fact removes culpability for an accused who honestly but mistakenly believed that communicated consent was obtained to touch the complainant in a sexual manner. [32] [ 92 ] The defence of honest but mistaken belief in communicated consent is a negation of the mens rea and imposes no burden of proof upon the accused.

Support for the defence may stem from the evidence of the complainant or other Crown witnesses. [33] It avails an accused who acts innocently, pursuant to a flawed perception of the facts, and nonetheless commits the actus reus of an offence. [34] [ 93 ] In order for the actions of the accused to be marked with moral innocence, the evidence must demonstrate that he believed that the complainant communicated consent to engage in the sexual activity in question. [35] In simpler terms, did the accused honestly believe that the complainant effectively said “yes” through her words and/or actions. [36] [ 94 ] Since the accused’s trial was heard by a judge sitting alone, there is no need to evaluate whether or not there exists an air of reality to the defence of mistaken belief in communicated consent. [37] Therefore, the Court can immediately evaluate the merits of the defence by determining if the accused took reasonable steps to ascertain whether the complainant actually consented to sexual activity. [38] 4.2.

Forcible confinement and kidnapping [ 95 ] The essential elements of the infraction of forcible confinement were summarized as follows by the Supreme Court in Magoon : Under s. 279(2) of the Criminal Code , the Crown must establish that (1) the accused confined the victim, and (2) the confinement was unlawful. In Pritchard , Binnie J. held that unlawful confinement occurs if “for any significant period of time [the victim] was coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire” (para. 24). In R. v. Bottineau , [2006] O.J.

No. 1864 (QL) (S.C.J.) , aff’d 2011 ONCA 194 , 269 C.C.C. (3d) 227 , leave to appeal refused, [2012] 1 S.C.R. vi, Watt J. held that an “unlawful confinement . . . consists of restricting the victim’s liberty, but not his or her ability to escape. The restriction need not be to a particular place or involve total physical restraint” (para. 116 (emphasis in original); see also R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.) ). Restraint of the victim through physical acts of violence is sufficient but not necessary to establish unlawful confinement.

Confinement can be effected “by fear, intimidation and psychological and other means” ( R. v. Kematch , 2010 MBCA 18 , 252 C.C.C. (3d) 349 , at para. 89 ). [39] [ 96 ] In Vu , the Supreme Court stated the following regarding the offence of kidnapping : Forcible confinement deprives the individual of his liberty to move from point A to point B. As for kidnapping, it consists of the taking of control over a person and carrying him away from point A to point B.

The distinction between the offences sometimes becomes rather subtle because to carry away a person from one point A to one point B prevents, at the same time, the person from moving from another point A to another point B. This is the reason why kidnapping necessarily entails forcible confinement . However, there can be forcible confinement without there being a kidnapping at the outset.

Unlawful confinement forms an essential component of the crime of kidnapping, as at common law, and it accepts the fundamental distinction, drawn at common law, that kidnapping involves movement, whereas unlawful confinement does not. [40] [ 97 ] With respect to the kidnapping offence, the actus reus is established when there has been an abduction of a person and moving him or her to a place (“carrying away” or “asportation”), against the victim’s will, which can be accomplished either by force or by fraud.

The mens rea will be established if the accused has one of the intents described in section 279(1) of the Criminal Code . [41] [ 98 ] The infraction of confinement is a lesser and included offence to the infraction of kidnapping. The latter being an aggravated form of confinement since it includes the element of displacing the complainant by the use of force or fraud. [42] The applicable principles in respect of the evaluation of the evidence [ 99 ] In order to resolve the issues at hand, the Court must evaluate the credibility and the reliability of the testimonies.

Given the fact that the parties presented contradictory versions, the Court applies the three-prong test set forth by the Supreme Court of Canada in R . v. W.(D.) [43] . [ 100 ] The first and second steps require the Court to concentrate on the testimony of the accused in light of the other evidence in the case. [44] Firstly, the Court must decide if his testimony is believed. If his testimony is believed, he must be acquitted. [ 101 ] If the Court does not believe his testimony, the Court must determine if it is left in reasonable doubt by it with respect to his guilt.

If this is the case, the Court must acquit him. The Court’s evaluation of his testimony during these two steps must be done while taking into account the evidence as a whole. [ 102 ] Finally, if his evidence does not raise a reasonable doubt, the Court must evaluate if on the basis of the evidence that it does accept, the prosecution has made evidence beyond a reasonable doubt of the guilt of the accused. 5. ANALYSIS

[ 103 ] Before embarking upon the analysis, the Court deems it necessary to specify, for clarity purposes, the use it intends to make of the text messages [45] that the complainant was sending to her boyfriend as the events unfolded. [ 104 ] It is relevant to reproduce the text messages for a better understanding: Exhibit P-3 : 2:10 am Babe 2:11 am Jaiune situation 2:11 am Caliss 2:21 am Babe fuck 2:29 am Babe je suis kidnapping dans un fake uber 2:29 am Babe 2:30 am Pls repond moi 2:30 am Wake up stp 2:30 am Caliss 2:31 am Sgp my love 2:31 am Stp 2:32 am Babe esti 2:32 am Je me fais ammener sur la rive sud 2:32 am Reveille 2:32 am Reveille 2:32 am C’est pas drole 2:33 am Viens me chercher 2:33 am Bane stp 2:34 am JP caliss 2:34 am Aide moi 2:35 am Babe pls réveille toi 2:35 am I need tou 2:35 am Je suis dans un fake uber 2:36 am Je viwns de me faire donner 400$ 2:36 am Bane pms 2:36 am Tabarnak 2:36 am Jai un molester 2:37 am Babe ouvre ton cell j’ai peurs [ 105 ] These text messages were drafted by the complainant while she was in the accused’s vehicle as he drove in the direction of Montreal’s South Shore.

During her testimony, she explained that she texted with one hand hidden in order to ensure that she would not be detected by the accused. [ 106 ] When these messages were tendered in evidence, no mention was made by the prosecution as to the purpose why they were being filed, and there was no objection to their admissibility on the part of the defence.

As a result, there was no debate and no voir dire . [ 107 ] After the final arguments were heard, the attorneys reconvened for additional submissions further to the Court’s request since the purpose of tendering the said text messages as well as the use to be made of them was unclear. [ 108 ] At that time, the prosecution submitted that the text messages were admissible as narrative as circumstantial evidence. [ 109 ] The defence submitted that there was no objection formulated because the understanding was that they were submitted for purely narrative purposes. [ 110 ] The Court took the matter under advisement and summoned the attorneys at a later date in order to advise them that the text messages were deemed admissible as prior consistent admissible hearsay under the res gestae exception. [ 111 ] In order to ensure trial fairness, the Court gave the parties the opportunity to reopen the evidence to redress any deficiencies caused by the lack of precision regarding the relevancy of these text messages and their utilization on the merits.

Further to the Court’s offer, the parties declared themselves satisfied with the evidence as it was presented and the defence chose to submit additional arguments verbally. [ 112 ] Under the res gestae exception, a statement relating to a startling event or condition may be admitted to prove the truth of its contents if it is made while the declarant, in this case the complainant C.D.G., is under the stress of excitement caused by the event. [46] The stress or pressure in the making of the statement allows the possibility of concoction or distortion to be safely disregarded. [47] [ 113 ] In the case at bar, the Court deems that the text messages are admissible as proof of the truth of their contents since they fall within the res gestae exception to the hearsay rule.

The value of these messages as res gestae comes from the context and the

circumstances in which they were made. While there is no weight in the simple fact of repetition and no independent corroboration in repetition, the circumstances in which the text messages were drafted, tantamount to their indicia of reliability, can and should add weight to the complainant’s correlative in-court testimony. [48] 5.1. Did the complainant consent to the sexual activity with the accused? [ 114 ] In his version, the accused contends that the complainant asked him to stay with her when they were parked outside her building and that he initially did not wish to do so.

Once she put his hand on her chest, he changed his mind. [ 115 ] The accused claims that as the events unraveled, he asked the complainant for her permission during each instance of sexual activity and she responded ok every time. [ 116 ] The Court does not believe the version of the accused and his evidence does not raise a reasonable doubt when evaluated within the whole of the evidence.

In particular, the Court lends no credence to the following elements of the accused’s version: • That moments after the complainant entered his vehicle, she took his hand and put it underneath her thigh; • That the parties were stopped in front of the complainant’s residence and that she asked him to stay with her; • That she told the accused that she did not want to go into her apartment because she did not want her boyfriend to see the way she looked; • That she took the accused’s hand and placed it on the upper part of her torso; • That her shirt was falling almost to her nipples; • That she lowered her shirt in order to give him access to her breast; • That each time he wanted to touch her breasts, he asked for permission; • That he asked her if they could go to the casino and she responded yes; • That he asked if he could touch her vagina and she responded ok; • That the complainant’s behaviour deteriorated and that something was wrong with her after he put his finger in her vagina; • That her behaviour changed since her head was down, her eyes were looking downwards and her posture had changed dramatically. [ 117 ] The Court comes to this determination for the following reasons. [ 118 ] The accused contradicted himself within his own testimony at trial regarding the vehicle that he drove on the night of the events.

Furthermore, the version that he gave at trial about said vehicle differs from what he told the police officer during his videotaped statement of February 2019. [ 119 ] During his testimony, the accused told the Court that on the night of the events, he drove his daughter’s Town and Country van, and tendered videos [49] that he filmed of himself during the summer of 2020 as he was seated in the driver’s seat of her vehicle. [ 120 ] In the videos, the accused turns on the ignition and when he starts driving, the click of the doors automatically locking is heard.

There are also two baby seats in the backseat of the van. The videos are played in open court and the accused testified that the car in the video is the same one that he drove during the incident and that it had a beige coloured steering wheel. [ 121 ] During his cross-examination, the prosecution suggested that he drove a Dodge Caravan and not his daughter’s Chrysler Town Country at the time of the events. Crown counsel showed pictures [50] to the accused that the complainant took, unbeknownst to him, on the night of the events while she was in the vehicle with him.

The accused is at the wheel of the vehicle in one of the pictures but the steering wheel is not the same one that appeared in the videos that he tendered in evidence.

In the pictures, the steering wheel is black. [ 122 ] When the prosecution referred to the pictures [51] and pointed the logo of the Dodge Caravan to the accused, his response was: “I see there is a change” since it was not the beige steering wheel of the Town and Country. [ 123 ] When the prosecutor asked him to confirm that he was not driving his daughter’s Town and Country on the night of the events, he responded that when he went to the police station, he was told that he had been driving his daughter’s car.

The accused did not answer the question that was asked of him and the Court intervened and asked that he respond to the question. [ 124 ] When the question was asked again, he responded: “if that’s the way it is, I do not have an answer”. The accused stated that he was always under the impression that the police told him that he was driving his daughter’s car during the events. [ 125 ] When the prosecution asked him to admit that he drove the Dodge Caravan on the evening of the events, he responded: “If you tell me that this is what I drove, I would agree”.

He further stated that the police officer who took his videotaped statement on February 7 th , 2019 suggested to him that he was driving his daughter’s Chrysler Town and Country when he picked up the complainant. [ 126 ] However, when the segment of his videotaped statement to police of February 7 th , 2019 was played in open court, it became clear from the Court’s perspective that the police officer never told him that he was driving his daughter’s car on the night of the events.

In his videotaped statement, the police officer asked him if he drove his daughter’s car on the night of the events and he responded that

he did not think so. [ 127 ] During the course of his cross-examination on his videotaped statement, the accused understood that the car he drove on the evening of the events was a rented one, but he did not remember the specific details of the car or the year of the vehicle and he could not confirm whether or not the rented car had automatic locks.

He also stated that since it was not his daughter’s car that he was driving on the night of the events, there were no child seats in the back as he had claimed earlier in his testimony. [ 128 ] Moreover, the accused testified that he gave his statement to the police a year and a half after the events and he did not know which car he drove. He only relied on what the police told him. If the police had told him that he was driving a purple car, he would have agreed that he drove a purple car. [ 129 ] In this regard, the accused’s version is ever changing.

During his examination in chief, he stated without hesitation that he drove his daughter’s car when he picked up the complainant. He was so convinced of this that he took videos of himself in that vehicle to establish that the doors locked automatically when the car began to move and tendered them into the court record at trial. [ 130 ] The multiple variations and contradictions in his version with respect to the vehicle that he drove on the night of the events strongly affect the credibility and reliability of his testimony as a whole.

But there is more. [ 131 ] With respect to the initial sexual activity that transpired in front of the complainant’s building, the accused stated that he gave her 100$ after he touched her nipple with his finger. He does not have an explanation as to why he would have given her this money but it could be because he had won a substantial amount at the casino the day before.

He was attracted to the complainant but his goal was not to give her money in exchange for a sexual favour since he had not sexual intentions. [ 132 ] This explanation is senseless given the fact that he had already touched her nipple before he gave her the money and that the touching was sexual in nature. It is illogical for him to claim that the intentions were not sexual. Furthermore, he continued to give her money on two other occasions during the course of the events, namely, when they departed Île Sainte-Hélène.

He has no explanation to offer as to the reason why he gave her the money at that time and continued to touch her in a sexual fashion after giving her the first banknote. [ 133 ] It is implausible that the accused was unable to explain why he gave the complainant the money when they left Île Sainte- Hélène after he had already put his mouth on her nipples and inserted his finger in her vagina.

He knew why he gave her the money and he did not wish to disclose the reason during his testimony at trial. [ 134 ] When he was cross-examined by the prosecution on his statement to police of February 2019, he admitted having lied when he told the officer that he never touched the complainant. He explained that he did so because he did not know how to stop the investigation. His response undermines his credibility.

He felt cornered by the police and he lied to try to extract himself from this compromising situation. [ 135 ] During his testimony in court, he stated having given 300$ to the complainant on the night of the events and admitted having lied to police during his videotaped statement by saying that he had not given her any money. During his cross-examination, the accused confirmed that he lied to police about the money because he thought there was no proof. He adjusted his testimony in court once he found out that the banknotes were in the possession of the authorities.

This concession on his part also contributes to undermining his credibility. [ 136 ] During his examination in chief, he explained that the complainant took his hand and put it on the upper part of her torso near the neck. Her shirt was falling so low that her nipples were almost exposed. The accused asked if he could touch her, she said ok and pulled down one side of her shirt thereby exposing her breast in order for him to touch her nipple with his finger.

In cross-examination on this same sequence, he stated that he touched the complainant with his finger on her nipple but underneath her bra. [ 137 ] The version given during his cross-examination contradicts the version that he gave during his testimony in chief on the issue of how he had access to her nipple. In chief, he alluded to the fact that the complainant pulled down her shirt in order for him to have access to her breast and there was no mention of her wearing a bra since her nipples were almost exposed. In cross-examination, he explained that he put his finger under her bra in order to touch her nipple.

This is yet another example of a contradiction within his own testimony at trial that compromises his credibility. [ 138 ] In cross-examination, he explained that when he was touching the complainant, she was touching herself. When he sucked on one of her nipples, she would touch the other one. Upon being questioned by the prosecution, he also admitted that he never mentioned this in the version that he gave to the Court in his examination in chief.

This is an important omission regarding one aspect of the sexual activity that took place on Île Sainte-Hélène that pertains to her active participation during this episode. This inconsistency also affects the credibility of his version. [ 139 ] Furthermore, he admitted during his cross-examination that he did not mention going to Île Sainte-Hélène when questioned by the police officer during his videotaped statement. [ 140 ] It is the cumulative effect of the elements identified in the accused’s testimony at trial that impact negatively on his credibility since they are central to the issue at hand.

Therefore, the Court rejects his version.

For the same reasons stated above, his version, evaluated within the whole of the evidence, does not raise a reasonable doubt. [ 141 ] Despite the fact that the Court does not believe the accused’s version and that it does not raise a reasonable doubt with respect to the entirety of the evidence, the Tribunal must evaluate all of the evidence and determine if, on the basis of the evidence that it accepts or the absence of proof [52] , a reasonable doubt subsists as to his guilt. [ 142 ] The complainant did not deliver a perfect testimony, nor was she required to do so. [53] There are some inconsistencies and contradictions that speak to the credibility and reliability of her evidence, and the Court will address them.

[ 143 ] During her testimony, the complainant was able to deliver a clear rendition of what transpired on the evening of the events. Although there are instances that she does not remember, as a whole, she was able to situate the events with respect to the time and place that they occurred from the beginning of the night when she met her father for supper until the moment that she was deposited in the St- Henri district by the accused. [ 144 ] Notwithstanding her insobriety, the Court is of the view that she had an operating mind.

She sent several coherently drafted text messages to her boyfriend and did so with one hand while her cellular telephone was hidden between the passenger seat and door. She also lowered the luminosity on the telephone. All these steps were taken in order to avoid detection by the accused. [ 145 ] She also took photographs of the accused while he was driving as well as pictures of the car after he left her in St-Henri. Furthermore, she attempted to call her father hoping that his voicemail would pick up and record the conversation that she was having with the accused.

Moreover, she admitted having her wits about her. [ 146 ] The defence underlined that she is not credible because upon filing her complaint, she negated having consumed cocaine that evening. She only disclosed having consumed alcohol. [ 147 ] This response that she gave to the police does not affect her credibility since at trial, she readily admitted to having consumed cocaine with her friends that evening. She gave details about the fact that the cocaine was ingested from a key while she was in the bathroom of the bar.

She explained that it was not a habit for her to do this, she knew that cocaine is an illegal drug, she was ashamed, and this is the reason why she lied about it to the police. The Court accepts her explanation. [ 148 ] The defence submitted that the complainant’s evidence that the accused did not take her to her apartment is false and misleading since the accused stated in his version that he took her to her residence and he could not have taken her to her residence unless she had told him where she lived. [ 149 ] The complainant was adamant that the accused did not take her to her apartment.

When she was cross-examined, she had a recollection of him driving on McGill Street but no recollection of him turning on William Street which leads to her home. Furthermore, she had no recollection of having given the accused directions about how to get to her home and she does not remember him having driven her to the front of her residence. [ 150 ] During the trial, the defence tendered a series of pictures in evidence. The complainant put an “X” on Exhibit D2 and situated the corner of William and [Street A].

She also stated that she could not see the building where she used to live on that picture and she confirmed that she did not show the accused where she lived. [ 151 ] The Court does not consider her testimony to be evasive or misleading on this point. [ 152 ] During her testimony in chief, the complainant stated that the accused is the one who moved her shorts in order to see her genitals when the parties were on Île Sainte-Hélène. In cross-examination, she explained that she moved her shorts.

This is a contradiction but it does not affect her credibility or her reliability since the issue of who moved the shorts is not determinative of an essential element of the offence.

Furthermore, it is an uncontested fact that the shorts were moved in order for the accused to see her crotch. [ 153 ] For the purpose of evaluating the defence of mistaken belief in communicated consent, the Court will retain the version that the complainant moved her shorts to the side. [ 154 ] On this same topic of the moving of the shorts, the defence contends that the complainant was evasive in cross-examination when she was questioned on whether or not she said ok to the accused when he asked to see her vagina.

The defence submits that there is an inconsistency between her sworn statement to the police of August 4 th , 2017 and her testimony in court. [ 155 ] On August 4 th , 2017, she told the police officer that the accused wanted her to show him her vagina and when he asked, she said ok. When she was cross-examined on this response, she recognized having said it to the police officer but stated that she did not say it to the accused. [ 156 ] When she was questioned as to why she did not tell the police officer that she did not say ok to the accused, she said that she did not know why.

She stated that it was more a way of expressing what happened as opposed to a verbatim word for word. She stated that she did not lie to the police officer. [ 157 ] During her cross-examination about whether or not the accused asked for permission to see her vagina, she said that everything happened quickly and in a very short period of time. She could not describe the exact words that the accused used. He was talking and touching her at the same time so she cannot state definitively that he asked for permission. It was not as if the accused was asking a question before acting on the sexual activity.

It was both at the same time. [ 158 ] She explained that she gave her sworn statement to the police approximately 12 hours after the event when she had not slept in 24 hours and she tried to explain the events to the police officer to the best of her ability. There is a contradiction between what she said to the police officer and her testimony but the Court accepts her explanation about the reason for this discrepancy. [ 159 ] The complainant denied having taken the accused’s hand and putting it under her leg or on her chest. Her testimony is clear that she never took his hand.

The Court believes her testimony. [ 160 ] In cross-examination, the defence tried to challenge the complainant’s credibility by saying that she lied about the accused having said that he was an Uber driver because that would have obliged her to explain to her father and boyfriend that she got into a van with another man. [ 161 ] When the accused picked her up, she thought he was an Uber driver because she believed that is what he told her. Her testimony

reveals that she looked in the back of the van to verify if she could sit there and then sat in the front because there was no space in the back. She also asked the accused if he had her address upon entering the vehicle. [ 162 ] She explained at trial that she had a habit of calling Uber even when she was close to her home.

She admitted that she realized after the fact that she did not call for an Uber. [ 163 ] When she was in the vehicle with the accused and she noticed that he went beyond the street leading to her home, she told him that he was going in the wrong direction and that is when he gave her the first portion of the money to stay with her.

It was at this point that she realized that she was not in an Uber and that she was in danger. [ 164 ] The Court has no reason to discard her explanation and deems that she was confused about whether or not she actually called for an Uber that evening. [ 165 ] During her cross-examination, the defence suggested that she did not want to go home that night because she did not want her boyfriend to see her in that condition. She responded by saying that she did want to go home and that her boyfriend had seen her in worse shape in the past.

He was her boyfriend for three years and he would not have been disturbed to see her coming out of a bar in a drunken state with her girlfriends. The Court believes her explanation. She was unfazed by this question and responded without hesitation. [ 166 ] Furthermore, in her testimony, the complainant stated that the accused asked her to touch him in a sexual manner but she did not do so. She was unequivocal on this point and the Court believes her. [ 167 ] The Court is of the view that the complainant gave a frank and sincere account of what happened.

The Court finds her evidence to be credible and trustworthy, and has no reason to discard any portion of it. [ 168 ] The fact that she consumed alcohol and cocaine was corroborated by the evidence of the forensic toxicologist. This is a confirmation of her state of intoxication at the time that the events took place.

The video footage [54] tendered in evidence also confirms that she was intoxicated while she was walking home. [ 169 ] Her testimony regarding the money that she received from the accused during their car ride together is corroborated by the banknotes [55] that she gave to the police when she filed her complaint shortly after the incident took place. [ 170 ] As for the text messages that the complainant sent to her boyfriend, they demonstrate the following: • That she sent him 28 text messages between 2:10 am and 2:37 am; • That she drafted and sent them to him while she was in the vehicle with the accused; • That the messages were very short; • That the messages were unambiguous; • That all of the text messages were addressed to him and there were no other messages interspersed. [ 171 ] The Court is satisfied that the complainant drafted the text messages while she was in the vehicle with the accused as he touched her in a sexual fashion.

The messages were sent to her boyfriend in continuity and within a short delay which demonstrates that she was in a state of panic and fearful. [ 172 ] They can be qualified as an electronic call for help and they add weight and reliability to her in-court testimony when she stated that she was afraid and in survival mode during her time in the car with the accused. [ 173 ] Despite the presence of certain contradictions and inconsistencies between what she said to the police in her videotaped statement and what she testified to in court, her testimony as a whole is reliable. [ 174 ] The complainant’s conduct is consistent with her claim of non-consent and the Court is convinced beyond a reasonable doubt that she did not consent to any type of sexual activity with the accused. 5.2.

Did the accused have an honest but mistaken belief that the complainant communicated consent to the sexual activity? [ 175 ] There is a precondition to the defence of honest but mistaken belief in communicated consent. If no reasonable steps are taken by the accused to confirm the consent of the complainant, there is no opening for the defence. [56] [ 176 ] There are objective and subjective components that require the accused to take steps that are objectively reasonable in the circumstances.

The reasonableness of the steps must be considered in light of the circumstances known to the accused at the time. [57] [ 177 ] Those circumstances are the following: • The parties were unknown to one another; • It was the middle of the night; • The complainant was walking alone and in an erratic way;

• The accused pulled up next to her and offered to drive her home; • Before he pulled up next to her, he thought that she was drunk; • The complainant looked in the back of the car before entering the vehicle; • The accused believed that she was about 30 years old; • The parties spoke during most of the car ride and the accused asked the complainant about how her evening went and questioned her about her personal life; • The sexual activity began moments after she entered his vehicle and continued for the duration of the car ride; • The sexual activity during the car ride consisted of the accused directly touching her breasts and nipples; • The accused gave her money several times during the car ride.

Each time she said nothing. She took the money and put it in her purse; • The accused was not aggressive with the complainant and did not threaten her; • The complainant did not struggle with the accused and she never told him to take his hands off her; • The complainant never said no to him; • The complainant never touched him in a sexual manner; • When the parties were parked in the parking lot of Île Sainte-Hélène sometime between 2 am and 2:40 am, he pulled down her shirt and touched her breast with his mouth.

When the accused asked if he could see the complainant’s genitals, she said nothing to him and she moved her shorts to the side. After she moved her shorts to the side, he inserted his finger in her vagina; • Shortly after he inserted his finger in her vagina, he realized something was wrong with her.

He was worried about her health since her eyes became droopy and she told him she wanted to go home. [ 178 ] The accused’s version is that he asked for permission every time that he wanted to engage in sexual activity with the complainant and that her response on every occasion was ok. [ 179 ] Notwithstanding the rejection of the accused’s testimony to the effect that he asked for her permission before each sexual activity, the Court is of the view that, even if he had asked and that she had responded ok at each instance, a reasonable person who was aware of the same circumstances would have taken further steps before proceeding with sexual activity. [ 180 ] The Court’s assessment is based on the standard of the reasonable person in the accused’s position, not only in respect of the immediate circumstances, but also in terms of his training, experience and background. [58] In the case at bar, the accused was a 59 year- old cabinet maker and a divorced father of four children who had been living in Canada for over 30 years. [ 181 ] With respect to the complainant’s act of moving her shorts without saying a word to the accused, the Court deems that this is, at best, ambiguous conduct.

It is particularly ambiguous as to what she may or may not have been consenting to. [59] [ 182 ] As stated in Barton : It is also possible to identify circumstances in which the threshold for satisfying the reasonable steps requirement will be elevated. For example, the more invasive the sexual activity in question and/or the greater the risk posed to the health and safety of those involved, common sense suggests a reasonable person would take greater care in ascertaining consent.

The same holds true where the accused and the complainant are unfamiliar with one another, thereby raising the risk of miscommunications, misunderstandings, and mistakes.

At the end of the day, the reasonable steps inquiry is highly contextual, and what is required will vary from case to case. [60] [ 183 ] This applies to the case at bar where the combined effect of all of the above-mentioned circumstances enhanced the accused’s obligation to take reasonable steps to ascertain consent [61] that went above and beyond a simple ok. [ 184 ] The Court considers that the accused did not take reasonable steps to ascertain consent. He satisfied himself with the complainant’s ok in a situation where he should have made sure that her replies actually constituted consent.

He was reckless as to whether she consented, and the steps that he did take were insufficient given the responses and the behaviour of the complainant in the circumstances. [ 185 ] The present matter is not one of the rare cases where the defence is established, since it is the exception rather than the rule that a sexual offence is committed by accident. [62] [ 186 ] The Court finds that the accused did not honestly but mistakenly believe that the complainant was consenting to any type of sexual activity with him, and concludes that the mens rea of the offence of sexual assault has been proven beyond a reasonable doubt. 5.3.

Did the accused forcibly confine and kidnap the complainant? [ 187 ] To intentionally confine is to restrain a complainant so that she cannot move about according to her own desire. The restraint can be physical restraint or restraint effected by fear, intimidation, psychological means or other means. [63] Like sexual assault, lack of consent is one of the essential elements of the actus reus for unlawful confinement. [64] Where there is no violence or threat of violence,

the accused must be acquitted of unlawful confinement, even if he is guilty of sexual assault. [65] [ 188 ] In the present matter, the complainant willingly entered the accused’s vehicle because in her mind, when he approached her and stopped his vehicle, she believed that she had called Uber for a ride home and that the accused was in fact an Uber driver. [ 189 ] When she entered the car, the doors locked as the vehicle was set in motion.

She does not know if the doors locked automatically or if the accused locked the doors himself. [ 190 ] She realized that he was not an Uber driver when he started to drive in a direction other than the one leading to her residence. At this point, she questioned why he was not taking her home and he asked her to stay in the car with him. [ 191 ] The complainant never expressed to the accused that she wanted to exit the vehicle. In turn, the accused never refused to let the complainant leave the minivan.

Furthermore, the complainant was not subjected to any physical restraint, domination, violence, or threat of violence. [66] [ 192 ] After considering all the facts and circumstances in the present matter, the Court is not satisfied beyond a reasonable doubt that the accused forcibly confined the complainant. [ 193 ] Regarding the kidnapping charge, the Court finds that at the outset, the accused did not take control over the complainant since she entered his vehicle willingly thinking that she would be driven home.

Given the fact pattern in the case at bar, the Court deems that the complainant was not carried away or abducted and moved against her will by force or by fraud. Therefore, the evidence does not permit the Court to conclude beyond a reasonable doubt that the complainant was kidnapped. For all these reasons, THE COURT : DECLARES the accused guilty of sexual assault (count #1); ACQUITS the accused of forcible confinement (count #2); ACQUITS the accused of kidnapping (count #3). __________________________________ FLAVIA K. LONGO, J.C.Q.

Mtre Olivier Charbonneau DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the Prosecutrix Mtre Paul Skolnik For the Accused Hearing dates: January 14, 15 and 16, 2020 November 2, 3, 4 and 5, 2020 March 29, April 8 and 30, 2021 May 17, and June 1, 2021