2020 QCCA 752, 2020 QCCA 752

K.B. c. R. 2020 QCCA 752 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006681-181 (500-01-109510-146) DATE: 9 JUNE 2020 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. PATRICK HEALY, J.A. BENOÎT MOORE, J.A. K... B... APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT THERE IS A PUBLICATION BAN IN THIS MATTER, PURSUANT TO

SECTION 486.4 OF THE CRIMINAL CODE, THAT PROHIBITS THE PUBLICATION OF THE NAME OF ANY WITNESS AS WELL AS ANY INFORMATION THAT COULD IDENTIFY A WITNESS. [ 1 ] This is an appeal against findings of guilt in the Court of Quebec, District of Montreal, [1] on seven of the eight counts charged in the indictment: 1- Between May 12, 1997 and May 12, 2004, in Montreal, district of Montreal, and elsewhere in Canada (Ontario) for a sexual purpose, did touch a part of the body of X, a person under the age of fourteen (14) years), committing thereby the indictable offence provided by

section 151 of the Criminal Code . 2- Between May 12, 1997 and May 12, 2004, in Montreal, district of Montreal, and elsewhere in Canada (Ontario), for a sexual purpose, did invite, counsel or incite X, a person under the age of fourteen (14) years, to touch him, committing thereby the indictable offence provided by

section 152 of the Criminal Code . 3- Between May 12, 1997 and May 12, 2004, in Montreal, district of Montreal, and elsewhere in Canada (Ontario), in committing a sexual assault on X, did cause bodily harm to her, committing thereby the indictable offence provided by section 272(1) c)

(2) b) of the Criminal Code . 4- Between May 12, 1997 and May 12, 2004, in Montreal, district of Montreal, did knowingly utter a threat to cause death or bodily harm to T.H. and D.D., committing thereby the indictable offence provided by

section 264.1(1) a) (2)

a) of the Criminal Code . 5- Between January 1, 1997 and May 12, 2004, in Montreal, district of Montreal, in committing a sexual assault on X, did threaten to cause bodily harm to T.H. and D.D. and use a firearm, committing, committing thereby the indictable offence provided by section 272(1) b)

(2) a) of the Criminal Code . 6- Between May 12, 2002 and May 12, 2004, in Montreal, district of Montreal, did knowingly convey to X a threat to cause death or bodily harm to Z, committing thereby the indictable offence provided by

section 264.1(1) a) (2)

a) of the Criminal Code . 7- Between May 12, 1997 and May 12, 2004, in Montreal, district of Montreal, did knowingly utter, convey to, cause any person to receive a threat to cause death or bodily harm to X, committing thereby the indictable offence provided by

section 264.1(1) a) (2)

a) of the Criminal Code . 8- Between May 12, 1997 and May 12, 2004, in Montreal, district of Montreal, did engage in

an act of anal intercourse with X, committing thereby the indictable offence provided by section 159(1) of the Criminal Code . [2] [ 2 ] The appellant was acquitted on the fifth count. Overview [ 3 ] The theory of the prosecution was that the appellant repeatedly committed sexual offences against the complainant between the

ages of six (1997) and thirteen (2004), and that he committed various offences of a threatening nature with the aim of preventing disclosure by the complainant of the sexual offences. The prosecution called testimony from the complainant, her mother and her step- mother. [ 4 ] The appellant denied all charges and testified in his defence. [ 5 ] The parties filed a statement of admissions that was filed as Exhibit P-1. Facts [ 6 ] The appellant lived with the complainant and her mother between 1993 and 2006 and is not the complainant’s natural father.

The appellant and the complainant’s mother had one son together who was born in [...] 2001. [ 7 ] On 28 August 1997 the appellant was seriously injured in a car accident. While recovering, he first stayed at his parents’ house. He moved back with the complainant and her mother in November 1997. From 1997 to 2001 he received disability benefits and attended several rehabilitation sessions. [ 8 ] In June 1999, following a report from a classmate of the complainant, the police conducted an investigation following allegations of sexual abuse of the complainant.

The complainant was interviewed but denied the allegations. Her mother was also interviewed. She claimed that she was very surprised by the allegations and was convinced her daughter would tell her of any sexual misconduct. The investigation was closed in September 1999. The complainant’s testimony [ 9 ] The complainant testified that she was repeatedly assaulted between the ages of six and thirteen. The sexual contacts worsened over time, evolving from touching and kissing, fellatio and cunnilingus, to full anal and vaginal penetration.

She was afraid to report the assaults because the appellant frequently threatened to kill her mother, her father and her baby brother if she told anyone. When she was in second grade, she disclosed the sexual incidents to her friend Z, which led to a meeting with the Youth Protection services. Before she was interviewed, the appellant threatened to hit her if she dared to speak about the assaults. As a result, she denied all allegations. Many years later she revealed the incidents to her family.

She filed a complaint to the police in 2014. [ 10 ] The first sexual contact occurred in 1997, after the appellant’s car accident, when they lived in a two-bedroom apartment. She was six years old at the time and was playing with her toys in her room while her mother did laundry in the basement of the apartment building. The appellant came in her bedroom, brought her into his room, pulled down his pants, put her hands on his penis and his hands on top of hers, and started stroking. After he was done, he made her promise not to tell anybody. Assaults of this nature persisted until she was about eight years old.

She was often asked to touch his penis and to kiss him, and he would touch her breast. [ 11 ] When she was eight (1999) or nine (2000) years old, the family moved to a house. At that point her mother worked multiple jobs and was rarely home. While her mother was at work the appellant would perform or ask the complainant to perform various sexual acts, including oral sex, digital penetration and full vaginal penetration. He eventually began anal penetration. These assaults occurred two or three times a week until the complainant was thirteen years old.

They mostly happened early in the morning after her mother had left for work: the appellant would wake her up, bring her into his room and sexually assault her before falling back to sleep. They would also happen in the evenings when her mother was away. [ 12 ] In her testimony she recalls certain events that stood out. The appellant once took photographs of her in the basement while she was undressing. On another occasion he demanded that she perform oral sex while he was watching pornography on a Lazy-Boy sofa.

She also recalls camping trips in Ontario during which she was assaulted multiple times in the car, in the tent and even once in the lake. She was often hurt during the assaults. When she was eight or nine years old, and the appellant first started penetrating her vagina, he put a towel under her because she bled. She cried frequently but he persisted. [ 13 ] She testified that the assaults stopped in 2004 when her mother left the accused and they moved to another apartment.

She recalls that she was thirteen years old at the time. [ 14 ] In cross-examination the complainant states that the appellant never wore a condom during intercourse. After she got her period at age eleven or twelve she became very scared that she would become pregnant. The mother’s testimony [ 15 ] The mother started her relationship with the appellant when her daughter was two years old and she had a son with the appellant in 2001. The couple moved in together in 1993. They lived first in an apartment with the complainant.

In 2000 they bought a two-storey house and their son was born on [...] 2001. [ 16 ] The mother testified that the appellant stopped working in 1997 after his accident and received disability benefits for almost six years. He spent most of his time on the computer in the basement. He also did chores around the house and took care of the children while the mother was working. [ 17 ] Between 1997 and 2001 she held various jobs with variable schedules, including early morning, day and evening shifts.

She was almost never home and the appellant took care of the complainant most of the time – he was the primary caretaker. Three months after the birth of her son, she was employed in a shop where she worked until 2007. Twice a week, she left the house at 3:40 A.M. for her shift from 4:00 A.M. to 4:00 P.M. On other days she worked from 9:00 A.M. to 5:00 P.M.

[18] In 1999 the Youth Protection services investigated a report of sexual abuse regarding her daughter. She and the appellant werequestioned at the complainant’s school. She was shocked at the time, and told the officers that she did not believe these allegations. Sheconfronted the appellant but he denied it. Her daughter refused to speak with her. The case was closed. [19] In January 2014, years after her relationship with the appellant ended, she received a phone call from her daughter. Only thendid she learn about the assaults. The step-mother’s testimony [20] L.

W. is the complainant’s stepmother – she is the spouse of her biological father. In January 2014, she was there when thecomplainant first revealed the assaults to her father. She recalls her being terrified, crying and shaking. The appellant’s testimony [21] The appellant testified that he had to stop work after the serious car accident in August 1997. From 1997 to 2001 he attendedrehabilitation sessions and took

part in a part-time work placement program (three or four days a week). In the spring of 1998 he wentback to work full-time but by the end of summer he was unable to work and re-entered the work placement program. [22] The appellant testified that the complainant’s mother was on welfare until 1999. She stayed at home and took care of thecomplainant until she started to work in the autumn of 1999. She held various part-time jobs for three or four months until she wasemployed full-time in early 2000 as a manager in a retail store.

While she was at work he took care of the complainant and in December2000 the complainant’s mother left work on maternity leave. [23] After his son was born in [...] 2001, he went back to work part-time (three days a week) and in August 2001 the complainant’smother resumed working full-time. Twice a week she left early for work (4:00 A.M.). On those mornings the complainant took care ofherself: she made breakfast and got ready for school while he stayed in bed. In July or August 2002 the appellant started working full-time again.

He testified that during their relationship the complainant never worked more than 46 hours per week. [24] Regarding the incident involving the Youth Protection services in 1999, the appellant states he never met with the investigators.He stayed in the car while the complainant’s mother “took care of it herself.” He never discussed the incident with the complainant: “itblew over like nothing happened, nothing came of it, so there wasn’t any issue, it was just an incident, and the incident went away”. [25] He denies ever having hit, threatened or sexually assaulted the complainant.

Grounds of appeal [26] The appellant relies on

section 36(

b) of the Rules of the Court of Appeal of Quebec in Criminal Matters, and amends hisgrounds of appeal as follows :

A) The trial judge erred in law by dismissing admissions of fact made by the parties.

B) The trial judge erred in law by concluding that there was proof beyond a reasonable doubt of the appellant’s guilt where such a verdictcould not reasonably have been rendered given the many weaknesses and contradictions in the plaintiff’s testimony.

C) The trial judge erred in law by rendering a guilty verdict while excluding from his analysis elements favourable to the defence,namely weaknesses and contradictions in the plaintiff’s testimony.

D) The trial judge erred in law by applying a more demanding standard when weighing the evidence presented by the appellant than thestandard applied to the evidence presented by the respondent.

E) The trial judge erred in law by dismissing the testimony of the appellant because he believed the testimony of prosecution witnesses,thereby violating the principles set out in R. v. D.(W)., (SCC), [1991] 1 S.C.R. 742.

F) The trial judge erred in law by declaring the appellant guilty on the basis of deficient reasons regarding the appellant’s testimony. Thetrial judge states that the appellant’s testimony does not raise a reasonable doubt because he cannot retain it in its entirety, but does notspecify which parts of his testimony he rejects. These reasons prevent a valid review on appeal. [27] He also seeks leave of the Court to raise a question of mixed fact and law:

G) The trial judge erred in fact and law by making errors in his appreciation of the evidence. This misapprehension of the evidence had

an important impact on the reasoning which led to a guilty verdict and led to a miscarriage of justice under section 686(1)( a )(iii) of the Criminal Code . [ 28 ] With some qualification concerning the first ground, all of the other grounds raised by the appellant are concerned with claims that the trial judge erred in his evaluation of the evidence according to applicable principles. We will consider the first ground separately. We will consider, as does the appellant, Grounds B and C jointly. We will also consider Grounds D, E and F jointly. [ 29 ] In Ground G the appellant seeks to raise an additional question of mixed fact and law. To do so

section 36(

b) of the Rules of the Court of Appeal of Quebec in Criminal Matters require the appellant to seek leave in writing and obtain leave from a judge of this court to present such a question to the panel seized of the appeal. The appellant did not seek leave as required. The respondent does not address this irregularity but responds to the appellant’s argument. We will address this concern below after considering the other grounds of appeal. Admissions [ 30 ] It appears that from the beginning of the trial the parties had agreed to file a joint statement of admissions.

Only after the complainant and her mother had testified for the prosecution did they file this statement. Paragraph five states that the mother “does not work and is a stay-at-home mom until the fall of 1999.

She was a welfare beneficiary until then.” The apparent relevance of this statement is that it would imply that before 1999 the appellant had less opportunity to commit the offences charged against him, at least for the period between 1997 and 1999. [ 31 ] The appellant claims that the statement in paragraph five was a formal admission of fact that could not be set aside by the trial judge and that he erred in concluding that he was not bound by the date of 1999. [ 32 ] This argument cannot succeed.

The date of the mother’s commencement of work was an issue that both parties pursued vigorously in the presentation of evidence. The defence sought to contradict the mother’s clear testimony that she began work in 1997. This manner of handling the presentation of evidence on the issue is an indication that the parties did not regard the date of re-entry into employment as settled. [ 33 ] After the evidence was closed the trial judge specifically addressed the parties about paragraph five.

Counsel for the prosecution immediately acknowledged that the date of 1999 in that paragraph was an error and the defence immediately affirmed that the judge was not bound by the assertion of the date of 1999. It would appear that the statement of admissions might have been designed as a formal admission of fact that could not in principle be contradicted. But the conduct of the parties in the presentation of evidence and the concessions made before the judge in argument leave little doubt that the issue relating to the date remained open for consideration by the judge on the whole of the evidence.

The parties had plainly resiled from the view that paragraph five was a formal admission of the date and this was expressly confirmed before the judge and withdrawn as such. This procedure conforms with the practice recently affirmed by this court in Ouimet : L’admission de l’intimé ne pouvait être rétractée de manière unilatérale et son retrait devait être autorisé par le juge. Une telle autorisation en matière de retrait d’admission est discrétionnaire et tributaire des circonstances particulières de l’affaire.

Le juge peut notamment considérer si l’admission a été faite par erreur, par inadvertance ou si elle a été faite sans être autorisée. Le juge peut évaluer le préjudice à l’accusé, c’est-à-dire, s’il subirait une injustice manifeste du maintien de l’admission.

Il peut également évaluer l’existence ou l’absence de préjudice pour le ministère public. [3] [ 34 ] In effect, when the judge affirmed that he was not bound by the date stated in paragraph five, due to the apparent error in drafting, the presentation of contradictory evidence and the concession by the parties, he neutralised the characterisation of that paragraph as a formal admission. [ 35 ] Further, the precise date was not decisive with respect to the case as a whole. Each count in the indictment charges that the offences occurred between 1997 and 2004.

As the Supreme Court made clear in B.(G.) , [4] even if paragraph five were accepted as a formal admission, the date of 1999 could in no way bar proof of the case as a whole if the evidence is otherwise sufficient. This is especially true if due consideration is given to the nature of alleged offences and the age of the witness. In the circumstances of the present case, assuming sufficient evidence, the judge might still conclude that the indictment was proved with respect to conduct between 1999 and 2004.

But that is not the case here because the characterisation of paragraph five was neutralised and the judge was entitled to consider all of the evidence relating to the period between 1997 and 2004. [ 36 ] Accordingly, the first ground of appeal fails. Unreasonable verdict and the exclusion of elements favourable to the defence [ 37 ] The appellant submits the judge misapprehended the evidence.

He suggests several errors, including the following: - The judge misapprehended the evidence related to the intervention by DYP in 1999 and did not properly consider the evidence that was favourable to the appellant; - He did not properly consider the evidence relation to the appellant's reaction following the investigation by the Youth Protection and drew erroneous or unfounded conclusions from this evidence; - He misapprehended the evidence related to the period in which the assaults are alleged to have occurred.

His factual conclusion that the assaults ended in 2006 rather than in 2004 is not supported by the evidence; - He did not properly consider the evidence regarding the alleged assault in the lake;

- He did not properly consider several elements that affected the mother’s testimony. While following the three steps set out in Morrissey,[5] the appellant first contends the verdict is unreasonable. He also contends thejudge erred in law by excluding from his analysis various elements of evidence favourable to the defence. [38] The respondent argues the judge made no palpable and overriding error that could warrant this court’s intervention. [39] The scope of an appellate court’s powers under section 686(1)(a)(

i) is well known. In R. v. R.P., the Supreme court reiterates: [9] To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, (SCC),[1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, determine whether the verdict is one that aproperly instructed jury or a judge could reasonably have rendered.

The appellate court may also find a verdict unreasonable if the trialjudge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on bythe trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise beencontradicted or rejected by the trial judge (R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19-21; R. v.

Beaudry,2007 SCC 5, [2007] 1 S.C.R. 190). [10] Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact.

A court ofappeal that reviews a trial court’s assessments of credibility in order to determine, for example, whether the verdict is reasonable cannotinterfere with those assessments unless it is established that they “cannot be supported on any reasonable view of the evidence” (R. v.Burke, (SCC), [1996] 1 S.C.R. 474, at para. 7).[6] [40] The appellant invites the Court to re-examine and re-evaluate the evidence that was examined and evaluated by the trial judge.In doing so the appellant cannot ask the Court to perform this exercise unless he can demonstrate clear error in the analysis of the judgethat would lead to the conclusion that the decision was unreasonable in the sense that it was not reasonably open to a properly-instructedtrier of fact.

This is especially the case, as here, where the assessment of credibility is decisive.[7] [41] While it is sometimes difficult to distinguish between a misapprehension of evidence that raises a question of law and a questionof fact, the prevailing jurisprudence is that it is a question of fact when the critical issue is the assessment of credibility. In this respectthe recent observations of Mainella J.A. in R. v. Jovel are apposite: [34] In R v Whiteway (BDT) et al, 2015 MBCA 24, the following

summary was provided as to what is, and what is not, amisapprehension of the evidence (at para 32): A misapprehension of evidence may refer to a mistake as to the substance of evidence, a failure to consider evidence relevant to amaterial issue or a failure to give proper effect to evidence (R. v. Morrissey (R.J.) (1995), (ON CA), 80 O.A.C. 161 atpara. 83; and R. v. Sinclair, 2011 SCC 40 at para. 13, [2011] 3 S.C.R. 3). A misapprehension of the evidence is not to be confused with adifferent

interpretation of the evidence than the one adopted by the trial judge (R. v. Lee, 2010 SCC 52 at para. 4, [2010] 3 S.C.R. 99). Itis insufficient that the judge may have misapprehended the evidence; the error must be readily obvious (Sinclair at para. 53). [35] As part of its duty to not usurp the function of a trial judge, an appellate court cannot characterise a trial judge’s

interpretation ofevidence as a misapprehension simply because it does not agree with it, it raises some unease or concern, or it may be a mistake (see R vCJ, 2019 SCC 8, adopting 2018 MBCA 65 at paras 67-68; and Sinclair at para 53). This is particularly the case when the

interpretationof evidence is based on a credibility assessment, because assessing credibility is not a science and, given the many factors that go intosuch decisions, it is not always amenable to precise articulation by a trial judge (see Gagnon at para 20; and R v REM, 2008 SCC 51 atpara 49).[8] [42] The trial judge provides an exhaustive review of the facts adduced in evidence. He notes the discrepancies, gaps andinconsistencies not only in the testimony of individual witnesses but in a global assessment of the whole of the evidence.

He examinesthe inconsistencies in the evidence of the complainant and the appellant. While the judge does not identify and dissect every apparentconflict in the evidence of the complainant and the appellant,[9] his assessment is thorough. He identifies with precision points in theevidence that are central to the evaluation of credibility and the reliability of the evidence, both with respect to individual witnesses andthe evidence as a whole.

He is attentive to the specific principles regarding the assessment of an adult witness’s testimony concerningevents in the childhood of that witness.[10] [43] The appellant advances several examples to support the assertion that the judge misapprehended the evidence. Among these arethe apparent discrepancies in the evidence concerning the investigation by Youth Protection, the incident at a lake during a camping tripor the date at which the offences ceased.

In our view, however, the judge provided an exacting exposition of the evidence and a detailedexamination of discrepancies in the evidence that could materially affect the credibility of witnesses or the reliability of their evidence.He quite rightly characterises virtually all of these discrepancies as peripheral to the general issue of guilt or innocence. There is no basison which the Court could or should intervene on Ground B or Ground C in this appeal. [44] These two grounds must fail.

Standards of assessment, W.(D.) and the sufficiency of reasons [45] In Grounds D, E and F the common theme advanced by the appellant is that the judge erred in the conclusion that theprosecution had proved its case beyond reasonable doubt. [46] There is no question that the application of differing standards in the assessment of credibility is subject to appellate review,[11]

but that review cannot and should not occur unless the appellant can demonstrate a clear basis on which to affirm that a double standard was actually applied. This limitation has been recently affirmed by the Court in Stevens v. R. : [131] Il importe de rappeler que la présence d’un double standard dans l’évaluation de la crédibilité nécessite une démonstration qui doit être convaincante. Il faut « pointer où, dans son raisonnement, le juge applique un double standard, étant convenu que le simple fait de trancher une question de crédibilité ne suffit pas ». [12] [ 47 ] And again in Figaro v .

R. : [19] C’est une évidence qu’une évaluation soignée des témoignages contradictoires n’exige pas un examen ou des motifs égaux sur un plan quantitatif et il s’ensuit qu’une évaluation inégale ne démontre pas une erreur si la

partie qui s’y attaque ne peut cibler précisément une faille ou une lacune déterminante. La jurisprudence rappelle clairement qu’un moyen d’appel de cette nature exige une démonstration convaincante de l’application d’un double standard inéquitable dans l’appréciation de la preuve contradictoire. Il s’agit d’un seuil exigeant. En l’absence d’une telle démonstration, cette question relève de l’appréciation de la crédibilité des témoignages et mérite une grande déférence. [13] [ 48 ] In this case, the appellant fails to demonstrate the judge applied a lower standard when assessing the evidence of the respondent.

There is no indication that the judge applied a double standard in his assessment of the credibility of the complainant and the appellant. It is clear that he reached the conclusions that the credibility and reliability of one witness were greater than that of the other. That is not a different standard of evaluation but a difference of result after a rigorous examination of their testimony and the evidence as a whole. [ 49 ] With respect to Ground E, this too is a submission that the trial judge erred in concluding that the prosecution had proved its case beyond reasonable doubt.

As previously discussed, the judge explains at length why he does not believe the testimony of the appellant, why his testimony does not raise a reasonable doubt and why on the whole of the evidence he is satisfied that the prosecution had proved the seven counts on which he made findings of guilt. This is the orthodox formulation of the principles in W.(D.) [14] and the judge followed them in form and substance with thorough explanations for his conclusions. There is no merit in the appellant’s claim that he rejected the appellant’s evidence because he accepted the evidence of prosecution witnesses.

He rejected the substance of the appellant’s testimony because, on an examination of the whole of the evidence, the evidence of the prosecution was more compelling. This might well be an unfortunate result for the appellant but it is not due to error. It is the result of careful analysis and explanation. The judge’s analysis is entirely consistent with the principles in W.(D.) as restated in R. v. Vuradin : [21] The paramount question in a criminal case is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused: W.(D . ) , at p. 758.

The order in which a trial judge makes credibility findings of witnesses is inconsequential as long as the principle of reasonable doubt remains the central consideration. A verdict of guilt must not be based on a choice between the accused’s evidence and the Crown’s evidence: R. v. C.L.Y. , 2008 SCC 2 , [2008] 1 S.C.R. 5 , at paras. 6-8 . However, trial judges are not required to explain in detail the process they followed to reach a verdict: see R. v.

Boucher , 2005 SCC 72 , [2005] 3 S.C.R. 499 , at para. 29 . [15] [ 50 ] With respect to Ground F, we have made clear that the reasons of the trial judge are thorough and provide a clear explanation of the basis on which he reached the conclusions in his judgment. This is the test of sufficiency for purposes of appellate review. [16] In this case there is no need to repeat this demonstration again with respect to Ground F. [ 51 ] Accordingly, Grounds D, E and F must fail.

Miscarriage of justice [ 52 ] In view of the preceding conclusions in this judgment, it follows that the Court rejects the argument that there was a miscarriage of justice (Ground G). The oral motion to present this ground is granted but the ground is dismissed. A final point [ 53 ] The offence charged in the eighth count of the indictment and on which the appellant was found guilty was declared unconstitutional by this court in R. v.

Roy . [17] At the hearing the Court asked counsel for their views and the respondent conceded that the appeal should be allowed on this count for this reason, and that an acquittal be ordered. [ 54 ] FOR THESE REASONS THE COURT : ALLOWS the appeal with respect to Count 8 of the indictment; ACQUITS the appellant on Count 8 of the indictment; DISMISSES the appeal on all other counts; ORDERS the appellant to surrender to prison authorities not later than noon on Monday, 15 June 2020. FRANÇOIS DOYON, J.A. PATRICK HEALY, J.A.

BENOÎT MOORE, J.A. Mtre Gabriel Babineau Mtre Charles B. Côté DESJARDINS, CÔTÉ For Appellant Mtre Philippe Vallières-Roland Director of criminal and penal prosecutions For Respondent Date of hearing: 3 June 2020