r v. M. S., 2016 QCCQ 15825

R. c. M.S. 2016 QCCQ 15825 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF BEDFORD LOCALITY OF GRANBY Criminal and Penal Division No. 460-01-028486-144 DATE: December 19, 2016 ______________________________________________________________________ PRESENT: THE HONOURABLE SERGE CHAMPOUX J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v. M. S. Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] M.

S. faces five very serious charges, all of which concern his daughter X.

He is accused of having had sexual relations with her between 1990 and 1996, knowing that she was his daughter; of touching her for sexual purposes between 1990 and 1993, when she was under the age of 14; of inviting her to touch him for the same purposes and under the same circumstances between 1990 and 1993; of touching her sexually between 1993 and 1997, when she was a young person and he was in a position of authority with respect to her; and, during the same period, of inviting her to touch him sexually for the same purposes and under the same circumstances. [ 2 ] The facts adduced in evidence are particularly serious and troubling. [ 3 ] X alleges that her father began assaulting her when she was 10 years old.

She is the sister of Y, who is 10 months older than her, and also of Z, who is 18 months younger than her. From what I understand, her mother, A. J., comes from a very modest background. She cannot read or write. Her father, the accused, was employed during various periods of his life, did odd jobs, received government benefits, sold dogs, and occasionally helped neighbours and farmer friends with routine work. [ 4 ] When X was around eight years old, the family moved to Shefford, to a two storey house on land where there were a few farm buildings, although it was not a farming operation.

I note that the home was modest in terms of size and type. [ 5 ] X describes her life as normal until she was 10 years old. Prior to that, it seems her mother was mostly in charge of discipline and running family affairs in general. The accused, M. S., seems to have been more or less absent or busy with work outside the home. [ 6 ] At that time, her life with her brothers was perfectly normal and healthy. She went to school like other children. [ 7 ] Everything changed when she was 10 years old. [ 8 ] She remembers playing on a swing with her brother Y. She was 10 years old, and he was 10 or 11.

It was summertime and the two children were having fun together. [ 9 ] M. S., who allegedly noticed a look that he considered inappropriate, intervened and attacked Y violently, accusing him of having looked at his sister in an unacceptable manner. I understand that the accused interpreted the actions or behaviour of his eldest son

as having sexual connotations, which apparently made him furious. [ 10 ] According to X, and I will come back to this, the family dynamics changed deeply at that point. To begin with, X and Y were physically separated from then on. They no longer had the right to speak with, touch or look at each other. The evidence shows that it became very rare and exceptional that they even had a meal together. [ 11 ] If Y broke the rules, M.

S. beat him, punched and kicked him, which was not the case with X, whom he treated in a completely different way. [ 12 ] From what she remembers, that treatment began when she was on the balcony of the residence, hanging clothes on a clothesline. Her father allegedly knelt near her, lifted her skirt, moved her underwear aside and licked her vulva. [ 13 ] After that, actions with sexual connotations, in particular, masturbation, became more numerous and occurred very frequently.

She remembers that before he penetrated her with his penis in her vagina for the first time, he made her lie down on her back on the kitchen floor, and inserted a sausage from the refrigerator into her vagina. He told her that he wanted to [TRANSLATION] “measure her vagina” using that horrible procedure. [ 14 ] Next, she describes what became routine.

While, before she was that age, her father was in the habit of asking the children to give him a massage in his bed, and the massages at the time were innocent, from then on she was practically the only one who “massaged” her father. [ 15 ] For her, the massages were interminable. They took place in the parents’ bedroom, located upstairs, almost every day. While they may have begun innocently, they quickly transformed into sexual assaults.

She speaks of masturbation, by her on her father, repeated penetration and touching of her person. [ 16 ] The accused’s authority over the family was such that, despite the frequent presence of the other occupants of the home, the accused did not really have any fear of being surprised: no one came into the bedroom, except, potentially, X’s mother, the wife of the accused. [ 17 ] X’s mother was often away visiting her sisters, or doing housework on the ground floor, speaking on the telephone or watching television.

The accused was taking advantage of when he thought his wife was busy to assault his daughter. [ 18 ] X reports that there were two occasions when her mother came into the bedroom when she and her father were, although partially clothed, in positions that were suggestive, to say the least. X explains that, on those two occasions, her mother left, exited the home, but that the accused went looking for her and managed, clearly, some time later, to persuade her to come back.

He toned down his behaviour for a while, but then everything would begin again as before. [ 19 ] X also says that, when the assaults began, her father used to have a little ruse: he drove the children to school, but in her case he picked her up right away and brought her back home, where he assaulted her as he wished. He did it behind the back of his own father, who was also living in the house, but was very elderly and confined to a limited part of the residence, and likely also when his wife, A.

J., was absent. [ 20 ] On those occasions, after having left his children at the main door of the school, he would go and park near a more discreet door, where his daughter, aged 10 or 11, would meet him to return home. [ 21 ] As Exhibit P-1, X filed her report card from the 1990-1991 school year, which shows an aberrant number of absences from school.

The following table reproduces what is found in the report card: ATTENDANCE TERM 1 2 3 4 TOTAL DAYS IN TERM 47 44 46 42 179 DAYS ABSENT 40 27 28½ 17 112½ TIMES LATE 1 2 7 1 11 [ 22 ] I note that there is no allegation that the child suffered any illness or injury during the year in question. [ 23 ] It seems that social workers, probably sent by Youth Protection, intervened to ensure X would attend classes in the future and that this resolved the situation. [ 24 ] The accused exercised parental authority with respect to X’s school.

It seems that X’s mother was not interested in or not fully able to understand the school report card, so she did not see it and could not understand it. [ 25 ] What I would describe as a regime of terror in the household continued for a number of years. The same situation was maintained between X and especially her brother Y. X could not wear clothing that revealed even the slightest curves of her body; she wore no dresses or skirts, no sweat pants (according to her father, they were too easy to remove). No low-cut tops. Her hair had to be tied back at all times.

For that reason, she could not participate in physical education classes, in particular. [ 26 ] If a man came to the house, X had to go hide in her room and stay there, even if he was a relative. She could not take the school

bus, which was driven by a man, so her father drove her. Many similar examples can be given. [ 27 ] To go to the bathroom at night, she had to have permission from her father, who might or might not accompany her. Y had his bedroom on the ground floor, which was the same floor as the bathroom, and M.

S. appeared to consider that his daughter and son could have taken advantage of the situation to behave inappropriately. [ 28 ] X tells of the great guilt she felt hearing the blows received by Y when he was being beaten by his father, for example, if he had dared to look at her. [ 29 ] However, it also emerges that X enjoyed relatively mild treatment in the other aspects of her life, and that she was even privileged in comparison with her brothers, who had to do the thankless tasks around the house and received less money, gifts and treats.

Likewise, X’s relationship with her mother was far from good, since the latter seems to have been very jealous of her daughter. [ 30 ] X says that for some time she and her younger brother, Z, discussed, I would say plotted, running away from the family home. Y allegedly left when he was 16 years old to live with nearby neighbours. [ 31 ] X affirms that she tried to commit suicide when she was 16 years old. That event greatly changed her father’s behaviour. From then on, he reduced his assaults, and allowed her to do sports; go out with friends, even boys; and take the school bus.

He also gave his daughter substantial amounts of money, given the family means, so that she could buy clothes that suited her. [ 32 ] Not all of the sexual assaults ended. She says that at that time the accused also engaged in periods of exhibitionism to her, in the house, if the opportunity arose. [ 33 ] Moreover, despite some freedom, she was still subject to surveillance. M. S. ordered his younger son, Z, to accompany X everywhere and report to him afterward.

Z even accompanied his big sister shopping and to the home of at least one of her male friends. [ 34 ] Despite the many obstacles, I note from the evidence that X managed to complete college and university. She says that she confronted her father with what he had done to her on one occasion, when he was driving her to the university. She told him that she had not forgotten anything about what he had done. He allegedly replied something to the effect that she should “ward off the demons”. [ 35 ] The religious component of the family environment is difficult to overlook.

It seems that, at different times and in various ways, religion provided the accused and the family in general with justifications for their conduct or with help surviving. [ 36 ] Z, as well as two of X’s aunts and two female cousins, were also heard.

While none of them witnessed the alleged sexual acts on which the charges are based, they confirmed and corroborated broad swathes of what X says. [ 37 ] More specifically, these people confirm that X lived in her room, as Y did in his; that they did not cross each other and that their lives were almost hermetically separate; that Y had been beaten; that X displayed sexualized behaviour for her age; that X had to comply with a large number of rules (clothing, make-up, permission from her father to go to the bathroom at night, very long periods of time spent in the bedroom giving massages with the door closed, etc.); but also that she was sometimes materially favoured by her father, much more than her brothers, and that her mother, A.

J., had a difficult relationship with her and seemed jealous. In sum, many facts are consistent with the peripheral elements of X’s story. [ 38 ] M. S. testified in defence. He altogether denies the slightest inappropriate act or unacceptable sexual conduct toward his daughter. He gives assurances that he treated his children equally and fairly, all on the same footing. He describes himself as a warm person who is always ready to help others, who does not understand why he is being accused of such odious crimes.

I will return below to a number of elements of his testimony when I analyze the evidence. [ 39 ] Y and Z also testified for the defence. I will focus first on Z, the nephew of the accused and cousin of X. He says that during the period when he used to visit the family, he noticed nothing of what the other witnesses alleged. He is a few years older than M.

S.’s children, and seems to have greatly reduced his contact at a point that must necessarily have been around 1990. [ 40 ] However, according to all the evidence heard, if, as the prosecution alleges, serious events occurred, they would not have begun until after that time, in both X’s and Y’s cases. This testimony is consequently of little use. [ 41 ] Y’s testimony raises a whole different series of questions. I will comment on this below, but in many regards it is very touching. [ 42 ] Y was very nervous when he testified, and was clearly extremely uneasy.

He completely denies having been subject to ill- treatment of the order described by some of the other witnesses. His father certainly disciplined him, inflicted corporal punishment on him, but nothing serious, and above all nothing he didn’t deserve. [ 43 ] He explained that, despite statements that connote strong religious beliefs, he no longer goes to church because he has realized that he is too imperfect to do so, that he does not achieve an image sufficiently close to Jesus, which would make him worthy of attending services.

He also testified to the help he provided his father and mother in the past, and still provides them today. I will come back to other aspects of his testimony later. ANALYSIS AND DECISION [ 44 ] The issue to be decided is solely that of credibility. In R . v. W. (D.) , [1] the Supreme Court of Canada teaches us the appropriate method for analyzing such cases, which involves the following three steps: 1. If the accused’s evidence is accepted and it is exculpatory, the accused must be acquitted and the analysis must end.

2. If the accused’s version is not accepted, whether in whole or in part, yet it raises a reasonable doubt, the accused must benefit from it and he or she must be acquitted. 3. It is only if the first two stages did not make it possible to complete the analysis that the evidence as a whole must be examined in order to ascertain whether it demonstrates guilt beyond a reasonable doubt.

Only in such a case can the accused be found guilty. [ 45 ] To begin with, it is therefore necessary to determine whether there are grounds to believe the accused. [ 46 ] Whether or not an account is to be believed depends on factors not all of which are tangible. Some factors are related to common sense and logic, while others are related more closely to the general impression given by the person and their account. [ 47 ] An account that is illogical is difficult if not impossible to believe.

One which contradicts facts that have been admitted necessarily entails a falsehood, either in the testimony or in the admission.

If two different accounts are given by the same person or by two people called to support the same position, then credibility is also necessarily brought into question. [ 48 ] In contrast, it is generally considered that if a person’s account is contrary to that person’s interest, then it is generally credible because, human nature being what it is, it is unusual for a person to falsely admit to something that is inaccurate or incorrect. [ 49 ] I plan to use these rules of thumb, for example, in my analysis of the accused’s testimony.

It goes without saying that they are simply illustrations of the method or way of analysing testimony and that the list is far from exhaustive. [ 50 ] The first element that comes to mind concerns the account and general impression flowing from M. S.’s testimony as a whole. He describes himself as a very upstanding man, imbued with extremely charitable values, and above all as very fair. [ 51 ] More precisely, if there were to be only one thread running through his account, I consider it would be that he is a man constantly devoted to his family.

He worked all his life to provide his family with a home, which might have been modest, but in which nothing was ever lacking. In general, everyone was welcome at his home, which was constantly full of family and friends, whom he helped all his life, by aiding them or giving them a place to stay. He loved all his children equally. He loved, disciplined, spoiled them all equally, never one differently from the others. If one had something, the others had it.

The reason he kept his distance from some members of his wife’s family was that some of those people used vulgar language that was not appropriate for the ears of children. He also devoted his whole life to helping others, such as neighbours and farmers he knew. He is very proud of having succeeded in educating his children and of having raised them so well. [ 52 ] If this were the case, what could be the explanation for the horrible situation in which he finds himself today?

By asking this question, I am not reversing the burden of proof; I am simply noting that the logic of his account makes it appear perfectly incomprehensible that his daughter to begin with, and then his younger son, would accuse M. S. of what is, in practice, likely the worst crime that a father could commit against his children.

There is absolutely no element in his testimony or in that of any of his witnesses that explains or justifies in the least why these two, according to him, loved, well treated and respected children would say such things. [ 53 ] I also note certain details, minor perhaps, but nonetheless significant. To start with, when he described the people who were living with him at the time, he forgot to mention his wife.

When he speaks of his relationship with her, he says “he likes her”. [ 54 ] Next, most answers were difficult to obtain, for example, regarding the reason why X was absent so often according to her Grade 5 report card. In the end, I understand from his testimony that she was in conflict with a mean teacher, the French teacher. [ 55 ] According to him, he kept her at home at the beginning of the year, and when the social workers showed up she returned to school. This version is not at all consistent with what appears in Exhibit P-1, the report card.

In it, we see that X was absent for much more than the beginning of the year and that the explanation does not hold water. Moreover, the same report card shows her grades in French for the four periods of the year, and they seem better , all things considered, than her grades in most of the other subjects. In contrast, in line with X’s testimony, it shows that she attended French classes, but not the physical education classes. Was she also in conflict with the teacher of that subject? [ 56 ] He completely denies that his children, especially Y and X, were confined to their bedrooms.

Yet, his witness, his son Y, does not deny it, explaining that this was his will. Y also contradicts his father on other subjects, very involuntarily, in my opinion. [ 57 ] To begin with, there is the question of fairness among the children. Contrary to what his father said, it seems to me clear from his testimony that, in his opinion, X had an exceptional relationship with M.

S., and that things were not equal among the children, although he in no way associates that relationship with inappropriate sexual conduct. [ 58 ] Next, it seems to me clear from his testimony that X also enjoyed financial, economic and material means to which the other children did not have the right. Once again, this is not what the accused claims. [ 59 ] M. S. also confirms that X gave him massages, in fact, I would add, a lot of massages. Naturally, according to him, the massages were limited to entirely appropriate muscle relaxation.

However, we learn that when they were younger his sons also gave him such massages, but stopped under strange circumstances, if we are to believe the accused. [ 60 ] He says that, since the boys took care of the dogs that the family raised, they contracted warts that they could pass on to him, unlike X. [ 61 ] I am drawing a few things from this: first, it is clear that X must not have had to take care of the dogs, contrary to what he claimed at other points in his testimony, and, second, the only person whom he says gave him massages and, once again, a large number of massages in his bed, although he claims she did so with the door open, was his daughter.

She was a preadolescent or adolescent. Is it not curious that his spouse never gave him such massages?

[ 62 ] He also seems to have a strange sense of humour. X claims that, on at least one occasion, when she was in the vehicle with him, he said he was considering committing suicide with her by jumping off a cliff. He allegedly said, more than once and to more than one person, namely, to X and one of her female cousins, that if he learned that they had boyfriends, he would cut off their penises and/or testicles. On hearing those comments, they took them very seriously. [ 63 ] M. S. does not deny having said such things. He acknowledges it. However, according to him, he was just joking.

I note that he said these things to young adolescent girls. [ 64 ] When asked whether it was true that his daughter used to ask him permission to go downstairs to the bathroom at night, he began by answering that he used to tell her to “go to the bathroom” and made a hand movement as if to mean that there was nothing to be read into it. He followed this by saying that she could go without asking him. [ 65 ] His first answer is nonetheless strange. If X’s father was indifferent to such a request, why did she feel the need to wake him?

This seems instead to corroborate X’s version. [ 66 ] In order to deny the clothesline episode, that is, the time when he allegedly licked the genitals of his daughter on the balcony, he launched into explanations according to which the clothesline was attached to an opening in the house, and went instead from the bedroom, upstairs, to a tree, intending this to mean that it would have been impossible for the alleged deeds to have occurred as described by X.

Yet, further study shows that there really was another clothesline, which was between the posts of the veranda, that is, at the location described by X. [ 67 ] He also does not deny that he sent Z to “follow” his sister, even to the home of her boyfriend at the time, although he denies having asked for “reports”. This is nonetheless a surprising situation. [ 68 ] Another element lacking in credibility, if we accept the accused’s version, concerns the fact that at a relatively recent period, X had her father and mother staying with her. According to X, her parents no longer had anywhere to live.

She says she tries to maintain a relationship with her mother, and her father is part of the equation. She therefore received him also. [ 69 ] However, from M. S.’s testimony, the way the stay ended is difficult to understand. He affirms that, in the months preceding their departure, X told him and his spouse that they could live in the house all their lives if they wanted. [ 70 ] Yet, a few weeks later, they were told they had to leave because the place they were occupying, the basement I believe, was going to be renovated.

In the end, they learned that they had to leave in a rush and X’s family told them that they could not come back at all, not even to pick up their personal effects, even though nothing at all had happened. This account seems to me illogical and I do not believe it. [ 71 ] M. S. also says things that seem rather strange to me and lacking in sense. He says that he never “seriously struck” his children.

He says he only “warmed up my hands”, an expression he used a number of times and for which I never received a really precise definition as to its meaning. [ 72 ] He says that what he did was simply take disciplinary action, as would any parent. He claims that he is a person with self- control, and that his father, whom he clearly admired greatly, used to beat him much more severely; he seems to be proud of this. [ 73 ] The story becomes even stranger when he says that, after his father died, he beat himself with his father’s belt. I am uncomfortable with such claims, to say the least. [ 74 ] According to M.

S., his spouse never asked him if he had touched his daughter. I note that, on this subject, X says that her mother asked her this more than once, and on one occasion went so far as to tell her daughter that if she was not telling the truth, she would swallow rat poison and commit suicide. X told her again that nothing was happening. [ 75 ] Yet, we know that A. J. was allegedly also a victim of sexual abuse when she was a child. Her husband asked her daughter, exclusively, to give him massages in his bed several times a week for at least six years when she was a preadolescent and adolescent, and Ms.

J. asked no questions? This seems to me difficult to believe. [ 76 ] I also consider M. S.’s claim to have never seen X entirely naked since the time she was born especially surprising, and also his uneasiness with the idea that his daughter, when she was small, might have taken a shower with one of her female cousins.

He seems to me to be reacting with false modesty to this kind of situation, which, in my mind, is much more suspicious than scrupulous. [ 77 ] I could go on much longer, in particular, to speak about the discordant nature of some of the religious statements that he makes, his criticism of his spouse’s family (concerning coarse language), the actions he took (such as sending his daughter to her room for hours), the way he speaks about his spouse, and so on. [ 78 ] On the whole, I do not accept his version and I do not believe it, and his testimony, as that of the other witnesses, raises no doubt in my mind. [ 79 ] The evidence as a whole is extremely consistent.

X delivered very solid, complete, structured, detailed testimony. It is also relevant to note that she does not deny having expressed affection for her father openly. [2] She admirably explains that she deeply wished to have a normal family, to be normal, to no longer be ashamed and suffer. [ 80 ] Z also gave touching, reserved, sensitive testimony, emphasizing that it was also difficult for him to testify against his father. He was not witness to the sexual abuse. However, he witnessed the physical abuse of his brother Y by his father.

He saw the special treatment that X seemed to receive during her adolescence and he was jealous of her. He saw his mother’s jealousy. While loving his father, he nonetheless gave testimony that corroborates his sister’s version in many respects. He also confirms that his father made him follow his sister constantly to prevent her from meeting or having contact with men.

[ 81 ] The aunts and cousins also corroborate X’s testimony concerning, for example, the fact that she was locked in her room; the restrictions on her clothing, make-up and hair; the interminable massages she had to give M.

S.; the treatment received from her father, then her mother. [ 82 ] All of these elements confirm X’s testimony and combine to create an especially disturbing atmosphere around both X and Y. [ 83 ] The latter seems to me to be someone who has suffered enormously and is terrorized by his father. [ 84 ] Although the preceding is amply sufficient to draw the conclusion to which I am coming, it remains that there was a notable absentee at the hearing: A. J.. She did not testify, but I understand from listening to M.

S.’s testimony that they are still living together and that everything is perfectly fine between them. [ 85 ] I am well aware of the limits on the conclusions that can be drawn from the absence of a person’s testimony. [3] Other courts, including the Québec Court of Appeal and the Court of Appeal for Ontario, have refined this point of view. [4] Since the accused’s spouse still abides him, according to his testimony and, according to the evidence adduced, she is the only person still alive who lived in the family home and has not been heard, her testimony would have been extremely interesting. [ 86 ] However, it is not in the records of the Court. [ 87 ] For all of the above reasons, the accused is found GUILTY of all of the charges, but I reserve for the lawyers the opportunity to advise me if they consider that a conditional stay of proceedings should be ordered with respect to one of the charges. __________________________________ Serge Champoux, J.C.Q.

Mtre. Geneviève Crépeau Counsel for the prosecutor Mtre. Pascale Gauthier Counsel for the accused Dates of hearing: October 4 and 5, 2016