2013 QCCQ 7354, 2013 QCCQ 7354

LSJPA — 1338 2013 QCCQ 7354 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ...

LOCALITY OF ... “Youth Division” No.: 550-03-002211-116 DATE: July 8, 2013 ______________________________________________________________________________ THE HONOURABLE MARIE PRATTE, J.C.Q. ______________________________________________________________________________ DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS Prosecutor and X Young person ______________________________________________________________________________ JUDGMENT ______________________________________________________________________________ [ 1 ] Following an incident that took place on the night of July 30 to 31, 2011, X is charged with theft, forcible confinement, and assault against A.

He is also charged with making harassing telephone calls to A. [ 2 ] At the hearing, the prosecution called Officer Daniel Richard to testify. Officer Richard filed two documents: a transcription of the messages sent and received on the victim's cell phone on July 29, 30 and 31, 2011, as well as a record of the messages sent and received by A's mother on her cell telephone on July 31, 2011. [ 3 ] A, her mother, B, and her friend, C, testified for the Crown. [ 4 ] The young person, who did not testify, raised an alibi defence. His mother, D, as well as his sister, E, testified on his behalf. I.

THE FACTS [ 5 ] The following facts appear from the evidence. [ 6 ] In July of 2011, X (the young person) was 17 years old. He was in a romantic relationship with A (the victim). [ 7 ] On July 29, 2011, X and A exchanged a number of text message. The evidence confirms that these calls were made to and from the telephone numbers of these two individuals. [ 8 ] X missed A and wanted to see her. He felt that she was pulling away from him. At 6:04 p.m., he wrote that he loved her. Unfortunately, he did not know whether they were still a couple because she was not speaking to him and no longer went to see him.

A did not answer him. Between 6:18 p.m. and 6:21 p.m., he sent her 21 messages. She then asked him to stop because he was [ translation ] "making her cell bug out". [ 9 ] In response, X continued to send messages. In one minute, he sent her 24 messages. She answered, [ translation ] "shut up". Over the next 8 minutes, he sent her 126 messages and then, between 9:50 p.m. and 10:00 p.m., he sent her 29 messages. At 9:52 p.m., A asked him what he wanted. He answered, [ translation ] "to make your cell bug out". Again, she responded with [ translation ] "Shut up!"

[ 10 ] The messages that X sent were brief. Most contained nothing more than the expression "LOL". [ 11 ] Starting at 10:34 p.m., A began sending X brief answers. Her messages to X, who was worried about whether their relationship was ending, were ambiguous: [ translation ] "ur high" (10:34:41), "OK" (10:51:13)"; "idk" (23:06:04), "cuz" (11:19:42); "yup" (11:28:51). [ 12 ] The messages began again the next day, July 30, 2011. X asked A several times to meet. She was distant, answering that she was going to a barbecue in City A.

She did in fact go there with some friends at 9:00 p.m. [ 13 ] At 9:24 p.m., after sending A several messages, X wrote to tell her that he would meet her there. He then drove a vehicle to the location of the barbecue. [ 14 ] He told A that he wanted to talk to her and asked her to get into his car. She agreed. The car, which was black, belonged to X's sister. [ 15 ] They both sat in the car. X suggested that they go see the fireworks at Lake A. She refused. The young person decided that they were going anyway.

A states that she was sitting sideways, with one leg in the car and the other out, and that X, who was at the wheel, grabbed her arm to pull her into the car and closed the door as he started the vehicle. [ 16 ] A few minutes later, at 9:55 p.m., A wrote to her friend C: [ translation ] "C I am telling you he fkn forced me into his car sht and hes taking me to City A fk". [ 17 ] Her friend suggested that she call the police. A did not do so. [ 18 ] Once they had arrived at Lake A, X and A got out of the car to watch the fireworks. There were a few people around them.

A did not alert them. [ 19 ] At 10:00 p.m., A told her friend C that she and X were on the beach at Lake A. [ 20 ] The young person then told A that he would not drive her home; he wanted her to walk. At 10:06 p.m., A sent C a text message, writing, [ translation ] "come I am walking on the side of the road". [ 21 ] After leaving her alone for a few minutes, X invited A back into the car. In her testimony, the victim stated that at this point X was threatening and she was afraid of him.

She admitted, however, that X did not force her, that she could have refused to leave with him, but that she climbed back in the vehicle anyway. [ 22 ] At 10:07, she wrote her friend again: [ translation ] "so now he let me back in the car he says hes gonna drop me off farther away so i hafta walk". [ 23 ] And indeed, X drove to “A road” and told A to get out. [ 24 ] At 10:17 p.m., a message was sent to C from A's telephone. In answer to C's question, [ translation ] "where are you?", someone wrote, [ translation ] "w my bf" (with my boyfriend).

In her testimony, A stated that X sent this message after she had gotten out of the car. Her claim is feasible, since this represents a sudden change in the tone of the messages. A few minutes earlier A had been asking her friend to come to get her, but suddenly this message said that she was [ translation ] "with her boyfriend". It is also worth pointing out that A did not use this term in her previous messages. [ 25 ] A states that she no longer had her cell phone when she got out of the car, and this is corroborated by C.

She walked for approximately half an hour before her friends found her and took her home. [ 26 ] The next morning, A told her mother what had happened the night before. Her mother decided to file a complaint. [ 27 ] On the morning of July 31, 2011, A and her mother began looking for the cell phone. On July 31, her mother sent X several text messages. At first he answered that he did not have the telephone because he had gotten rid of it. [ 28 ] Later he wrote that he had found the cell.

A few hours later, however, he told her that he did not have it although he added, [ translation ] "… 4 sure if I go look Ill find it" (for sure, if I go look for it, I will find it.) [ 29 ] At 3:57 p.m., in answer to the mother's text asking him to find A's cell phone, he sent the following message: "No no point u dont want A and me to c each other bc of stpd thing... the other time A talked 2 u I did that bc G gave her coke and she wanted 2 go w him again. thats y I grabbed her arm ok. (No, there is no point, you don't want A and I to see each other because of a stupid thing. The other time A talked to you.

I did that because G gave her some coke and she wanted to go with him again. That's why I grabbed her arm. OK.) [ 30 ] And finally, in the evening, he wrote the following: [ translation ] "nywy I went 2 get cell and 2m aftr wrk I will bring it 2 u and we wont talk nmore, like we nvr met. OK. thx. cu2m former mil. (Anyway, I went to get the cell. Tomorrow after work I will bring it to you and we won't talk anymore, like we've never met. OK. Thanks. See you tomorrow, former mother-in-law.) [ 31 ] In answer to the charges of forcible confinement, assault and theft, the young person raises the defence of alibi.

His mother, D, states that X was with her at home on the evening of July 30, 2011, and that he therefore could not have been involved in the escapade that A relates. [ 32 ] X's mother's testimony can be summarized as follows: She was home sick on the evening of July 30. Around 9:00 p.m., she was watching a movie with her daughter F. X was in his room. [ 33 ] She fell asleep in front of the television. Around 9:40 p.m, she woke up, turned the TV off, and went to bed. Around 10:00 p.m.,

she gave X some cough syrup. He was lying down in his bedroom. [ 34 ] She also added that the car belonging to her daughter F's spouse, a black Mazda, was parked on the house’s property. She had the keys in her bag, which was in her room. X, who no longer has a driver's licence, did not have the keys. [ 35 ] E, the young person's younger sister, had gone to see the fireworks, leaving around 8:30 p.m., while X was in the house. She returned around 11:00 p.m. or 11:30 p.m. The black Mazda was parked near the house. Her brother was also there, because she heard him cough. 2.

ANALYSIS [ 36 ] It is first necessary to assess the alibi defence. The Crown acknowledges that the alibi raised by the young person was properly disclosed and the particulars provided before the trial. The question of the merits of the alibi remains: In light of the evidence as a whole, does this defence raise a reasonable doubt justifying an acquittal of the young person on the charges against him? 2.1 The alibi defence [ 37 ] At the outset, it should be pointed out that the young person did not testify in his defence. According to the Supreme Court in R. v.

Noble , [1] this silence allows the trier of fact to draw an adverse inference about the credibility of the alibi. [ 38 ] That said, the Court believes the young person's sister, who claims that, on July 30, 2011, her brother was at the family home around 8:30 p.m. when she left to see the fireworks and that he was also there when she returned around 11:00 p.m or 11:30 p.m. There is no identifiable element allowing the Court to doubt the girl's credibility or the veracity of her testimony. [ 39 ] But this testimony is not sufficient to find that the young person remained at home the entire time.

On this summer Saturday night, he could very well have been home in the early and late evening, but with A in the interim. [ 40 ] The essential element of the alibi is the testimony of his mother, who states that she gave her son cough syrup at 10:00 p.m. Obviously, if the young person was at the family home at that time, he could not have been driving between City A and Lake A with the victim at exactly the same moment, as she maintains. [ 41 ] That said, the times indicated by the mother might be approximate. Indeed, she states that she was ill at the time.

She was so tired that she fell asleep in front of the television around 9:00 p.m. She claims that she woke up about three-quarters of an hour later but that she did not see her son at the time. She assumed that he was in his room. In the circumstances, it is feasible that she did not notice or try to find out the exact time when she performed each of her actions. For her, these were insignificant actions that did not require that she give them any particular attention.

Indeed, she does not explain why she happens to remember the time she gave her son cough syrup. [ 42 ] The feasibility and probative value of the alibi must be evaluated in light of the evidence as a whole. It is undeniable that, on July 29 and 30, 2011, the young person actively attempted to contact A. On July 29, he sent her approximately 200 text messages. Then, on July 30, he asked her to meet several times. She was distant, telling him that she was going to go to a barbecue in City A instead. At 9:24 p.m., the last text message the young person sent said that he was going to meet her.

This was precisely the time at which his mother said she fell asleep. What is more, the young person did not send A any text messages after he told her that he was going to meet her. Finally, the black vehicle that A identified as the one she sat in matches the one belonging to the young person's older sister's spouse.

This vehicle was parked outside the residence of the young person and his mother in the early evening and late evening of July 30, 2011. [ 43 ] Therefore, after considering the evidence as a whole, and more specifically the testimony of the victim and her friend C, the timeline and contents of the text messages, and the silence of the young person, who did not testify in support of his alibi, the Court finds that the defence raised is not supported by the evidence and that it therefore fails to raise a reasonable doubt. [ 44 ] That said, has the Crown proved the offences with which the young person is charged, beyond any reasonable doubt? 2.2 The charges a.

The assaults [ 45 ] Among the charges against the accused is that of assault. Under subsection 265(1) of the Criminal Code , "A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; ...”. [ 46 ] In this case, the victim states that the young person grabbed her harm to compel her to get into the car. Her testimony on this point, however, is not convincing. She states that the young person was behind the wheel of his vehicle. She alleges that, as she was sitting in the passenger side with one leg outside the vehicle, he grasped her arm while closing the passenger side door and starting his

car. It is very unlikely that the young person could have performed all of these manoeuvres simultaneously, while also preventing A from exiting the vehicle. [ 47 ] Admittedly, in a text message that he sent to the victim's mother at 3:57 p.m. on July 31, 2011, the young person admitted that he [ translation ] "grabbed" A's arm. But these remarks are vague because they were made in relation to to an event which, as the young person stated but without providing any further detail, happened [ translation ] "the other time".

Thus, the young person does not specify when this incident took place, and he might have been referring to a different event from the one contemplated in the charge. [ 48 ] In these circumstances, a doubt remains. [ 49 ] The Crown has therefore not discharged its burden of proof. It has not demonstrated beyond any reasonable doubt that the young person used force against A without her consent during the events of July 30, 2011. b.

Forcible confinement [ 50 ] According to subsection 279(2) of the Criminal Code , Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or (

b) an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding eighteen months. [ 51 ] In 1997, in R. v. Trembla y, [2] the Court of Appeal of Quebec decided that: [ translation ] The offence of forcible confinement involves ... a physical restriction of a person's movements against that person's will, preventing movement from one place to another. It requires an element of intent, namely, the intent to confine, which may be determined on the basis of all of the accused's actions, taken together.

If the victim freely consents to a restriction on his or her freedom of movement, there is no confinement within the meaning of the Criminal Code . [ 52 ] Similarly, in 2008, in R. v. Pritchard , [3] the Supreme Court noted the requirements for the offence of forcible confinement: [F]or any significant period of time, [a person] was coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire... . [ 53 ] Finally, in 2010, in R. v.

Francillon , [4] the Court of Appeal of Quebec stated that: [translation] Forcible confinement involves physical constraint or domination of the victim... . To be found guilty of confinement... there must be violence or a threat of violence... [ 54 ] It is also interesting to note that, in R. v. Tremblay , [5] supra , the victim voluntarily entered the vehicle of the accused, who was supposed to drive her home. On the way, the accused made sexual advances and suggested that they visit some friends. The victim refused and asked him to take her to home. The accused ignored her. This occurred several times.

The victim then asked him to let her out of the car, but the accused paid no heed to her request. The victim finally opened the door and threw herself out of the moving vehicle. [ 55 ] LeBel J.A., as he then was, analyzed the situation as follows: [ translation ] The evidence reveals that Ms. Fuerta Garcia was deprived of her freedom for a short time. The length of the period does not preclude confinement since it is sufficient if the period is significant. She was forced to remain in the vehicle against her will.

Although the door was not locked, her freedom and ability to move was limited to the interior of the vehicle, since she could only exit safely if the vehicle stopped. Despite the victim's repeated requests, the respondent Tremblay did not stop his vehicle to let her out. As soon as the accused knew that the victim wished to exit his vehicle, his failure to stop the car demonstrates that he wanted to keep her under his control and that she was not free to move as she wished . As of this moment, she was in the vehicle against her will.

Insofar as she had stated her intention to leave the vehicle and insofar as the respondent was driving in such a way as to prevent her from safely doing so, it was sufficient. The evidence contained sufficient elements for confinement to be found . (Emphasis added.) [ 56 ] In this case, the evidence reveals that, not only did the victim follow the young person and voluntarily take a seat inside his car, she also never voiced her desire to exit the vehicle, even getting into it a second time after getting out when they had stopped at Lake A.

[ 57 ] On the contrary, it was the young person who asked the victim to get out of the car so that she would have to walk home. This boorish act demonstrates a certain lack of courtesy, consideration and compassion, but it is not a criminal offence. [ 58 ] According to the evidence, therefore, the victim was not subjected to any physical restraint, domination, violence, or threat of violence. Thus, the Crown has not proved the constitutive elements of the offence of forcible confinement beyond any reasonable doubt, and the young person should be acquitted on this count. [ 59 ] What about the charge of cell phone theft? c. The theft [ 60 ] Under

section 322 of the Criminal Code : Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent (

a) to deprive, temporarily or absolutely, the owner of it, or a person who has special property or interest in it, of the thing or of his property or interest in it; [ 61 ] As Professor Rachel Grondin wrote in her book Les infractions contre la personne et contre les biens , [6] [ translation ] "therefore, there is theft when a person knowingly takes a thing without having a right to it, or keeps such thing without having a right to it". [ 62 ] The victim had her cell phone when she was in the young person's vehicle. She did not have it after she got out.

The evidence supports a finding that X later used it to send some messages, letting it be believed that A had written them. Thus, he appropriated the telephone without the consent of its owner. [ 63 ] The next day, at 8:16 a.m., the victim's mother sent the young person a message asking him to bring back her daughter's telephone. Twice, the young person answered that he had found it, but he did not return it to its owner. Counsel for the young person maintains that these admissions constitute [ translation ] "silliness".

Insofar as the young person has not testified to this effect, however, this assessment is not justified by the evidence. [ 64 ] On the contrary, the Crown has proved beyond any reasonable doubt that the young person used the telephone belonging to A, that he kept it in his possession after he was asked to bring it back, and that to this day, he has still not returned it to its owner. This appropriation constitutes theft. d.

Harassing telephone calls [ 65 ] According to the information, the young person is also charged with having, with intent to harass A, made repeated telephone calls, thereby committing the offence punishable on

summary conviction set out in subsection 372(3) of the Criminal Code . [ 66 ] This provision reads as follows: Every one who, without lawful excuse and with intent to harass any person, makes or causes to be made repeated telephone calls to that person is guilty of an offence punishable on

summary conviction. [ 67 ] In this case, on July 29, 2011, the young person sent the victim nearly 200 text messages in just a few minutes, 126 of which were sent in a period of only 8 minutes. Was there a violation of subsection 372(3) Cr. C. ? [ 68 ] First, this question raises an

interpretation problem that was not mentioned by counsel: Does a text message constitute a telephone call within the meaning of subsection 372(3) ? [ 69 ] Since Parliament does not define the term "telephone call", it must be given its ordinary meaning. According to Le Petit Larousse illustré 2012, under the word " appeler " [ translation : to call], a person makes a telephone call between, or seeks to enter into telephonic communication with, another person.

Le Petit Larousse illustré 2012 (at page 1071) also states that, while the telephone is used primarily for voice communication, it can also send visual information, which is displayed on a screen integrated into the handset. Such communications may be text messages. This type of message is sent from one telephone number to another, using the telephone line. Of course, the message is written, not verbal. A signal alerts subscribers when they receive a message. [ 70 ] In R. v.

Sabine , [7] the Court of Queen's Bench of New Brunswick decided that a telephone call is made once the telephone rings: One who makes a telephone call causes a bell to ring or some other audible signal to be made at the location of the number called. The bell or signal calls the recipient subscriber to his telephone. In my view, a telephone call is made when the recipient's telephone rings. [ 71 ] The factual framework of this case permits the application of the test developed by the Court of Queen's Bench of New Brunswick in Sabine .

Sending a text message that displays on the telephone of the recipient, who is alerted by a signal, constitutes a

telephone call. [ 72 ] It is also interesting to note that, in a legal system completely different from our own but where a criminal offence of the same nature exists, the highest jurisdiction has come to the same conclusion. In France, the Cour de cassation [8] found that the repeated sending of text messages may constitute " appels téléphoniques malveillants réitérés " [ translation : repeated malicious telephone calls] within the meaning of

article 222-16 of the Code pénal. The French court justifies this conclusion on the basis of, inter alia , the fact that [ translation ] "reception of an SMS is indicated by an audible signal from the recipient's cellular telephone". [ 73 ] Taking it as established that a text message constitutes a telephone call within the meaning of subsection 372(3) Cr. C ., did the young person, without lawful excuse and with intent to harass, make repeated telephone calls to her? [ 74 ] The evidence shows beyond any reasonable doubt that the young person sent approximately 200 messages in a short period of time.

He knew that it was bothering A. Indeed, she asked him to stop. He continued, and when she asked him what he wanted, he answered, [ translation ] "to make your cell bug out". [ 75 ] In R. v. Sabine , [9] the Court of Queen's Bench of New Brunswick decided that the act of placing 14 telephone calls in 10 minutes was sufficient to constitute the material element of the offence set out in subsection 372(3) Cr. C. [ 76 ] The Court in that case also decided that the term "harass" in subsection 372(3) Cr.

C . has the same meaning as "annoy", which in French can be rendered as " ennuyer , gêner , agacer , contrarier " ( Harrap's Compact French Dictionary: English-French French- English ). [ 77 ] In that case, Stevenson J. wrote the following: Despite the use of different words in subsections (2) and (3) of

section 372 of the Criminal Code , it is my view that the word ‘harass’ in subsection (3) is synonymous with ‘annoy’. [ 78 ] In this case, the excessive number of messages sent in a short period of time makes it possible to conclude, without any doubt, that the young person made repeated calls. Moreover, the evidence reveals no circumstances capable of constituting a lawful excuse.

Finally, not only does the act of sending so many messages in such a short period of time justify the inference that the young person had the intent to harass the victim, but the reactions of the victim and her answers to the young person demonstrate beyond any reasonable doubt that the young person had the intent to harass and annoy her. [ 79 ] The Crown has discharged its burden of establishing beyond any reasonable doubt each of the constitutive elements of the offence in subsection 372(3) Cr.

C. [ 80 ] FOR THESE REASONS, THE COURT : - CONVICTS X on the count of theft of a cellular telephone; - CONVICTS X on the count of making repeated telephone calls with intent to harass A; - ACQUITS X on the counts of forcible confinement and assault. __________________________________ marie pratte, j.c.q. Mtre Andrée-Anne Tremblay Criminal and penal prosecutor Mtre Marie-Christine Fournier Counsel for the Appellant Date of hearing: May 2, 2013