2021 QCCQ 5309, 2021 QCCQ 5309

R. c. J.M. 2021 QCCQ 5309 Verdict, sexual offences and assault on minors, credibility, trust worthiness, defense of collusion between complainants and collusion with political governance, with SQ police, imprecision on dates of offences, art. 43 cc on correction, gross indecency, and good character. COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF ABITIBI WASKAGANISH N° : 614-01-001865-175 DATE : April 8, 2021 PRESIDED BY THE HONOURABLE LOUIS A. LEGAULT, J.C.Q. HER MAJESTY THE QUEEN Prosecution v. J. M.

Defence JUDGMENT (written version) [ 1 ] A publication ban of the name of the complainants or of every detail permitting to identify them is ordered in virtue of

section 486.4 of the Criminal Code . [ 2 ] The accused has appeared on November 30, 2017, on September 19, 2019, he was ordered to stand trial after a preliminary enquiry and on January 21, 2020, trial started on the following counts of indictment. Count 1: Between May 23, 1978 and January 3, 1983, in Town A and elsewhere in Canada, district of Abitibi, did, being a male person, indecently assault X (1971-[...]) a male person, committing thereby the indictable offence provided by

section 156 of the Criminal Code . Count 2: Between May 23, 1978 and May 23, 1985, in Town A and elsewhere in Canada, district of Abitibi, did commit

an act of gross indecency with X (1971-[...]), committing thereby the indictable offence provided by

section 157 of the Criminal Code . Count 3: Between January 4, 1983 and May 23 1985, in Town A, district of Abitibi, did commit a sexual assault on X (1971-[...]) committing thereby the indictable offence provided by

section 157 of the Criminal Code . Count 5: Between September 12 th , 1982 and January 3, 1983, in Town A and elsewhere in Canada, district of Abitibi, did, being a male person, indecently assault Y (1974-[...]) a male person, committing thereby the indictable offence provided by

section 156 of the Criminal Code . Count 6: Between September 12 th , 1982 and December 31, 1987, in Town A and elsewhere in Canada, district of Abitibi, did commit an act of gross indecency with Y (1974-[...]), committing thereby the indictable offence provided by

section 157 of the Criminal Code . Count 7: Between January 4, 1983 and December 31, 1987 in Town A and elsewhere in Canada, district of Abitibi, did commit a sexual assault on Y (1974-[...]), committing thereby the indictable offence provided by

section 246.1(1)

a) of the Criminal Code . Count 8: Between January 1, 1988 and September 11 th , 1988 in Town A and elsewhere in Canada, district of Abitibi, did touch a part of the body of Y (1974-[...]), a person under the age of 14 years old, committing thereby the indictable offence provided by

section 151 of the Criminal Code . Count 9: Between September 12 th , 1988 and September 11 th , 1989 in Town A and elsewhere in Canada, district of Abitibi, did touch for sexual purpose a part of the body of Y (1974-[...]), a young person towards whom he was in a position of trust or authority or being a person with whom Y (1974-[...]) was in a relationship of dependency, committing thereby the indictable offence provided by section 153(1)

a) of the Criminal Code . Count 10: Between January 1, 1988 and September 11 th , 1989 in Town A and elsewhere in Canada, district of Abitibi, did commit a

sexual assault on Y (1974-[...]), committing thereby the indictable offence provided by section 271(1)

a) of the Criminal Code . Count 11: Between December 13 th , 1986 and December 13 th , 1997 in Town A and elsewhere in Canada, district of Abitibi, in committing an assault on Z (1981-[...]), did cause bodily harm to the said person, committing thereby the indictable offence provided by

section 267b) of the Criminal Code . Count 12: Between December 13 th , 1991 and December 12 th , 1995 in Town A and elsewhere in Canada, district of Abitibi, did touch a part of the body of Z (1981-[...]), a person under the age of 14 years old, committing thereby the indictable offence provided by

section 151 of the Criminal Code . Count 13: Between December 13 th , 1995 and December 13 th , 1997 in Town A and elsewhere in Canada, district of Abitibi, did touch for sexual purpose a part of the body of Z (1981-[...]), a young person towards whom she was in a position of trust or authority or being a person with whom Z (1981-[...]) was in a relationship of dependency, committing thereby the indictable offence provided by section 153(1)

a) of the Criminal Code . Count 14: Between December 13 th , 1991 and December 13 th , 1997 in Town A and elsewhere in Canada, district of Abitibi, did commit a sexual assault on Z (1981-[...]), committing thereby the indictable offence provided by section 271(1)

a) of the Criminal Code . Count 15: Between January 1, 1992 and November 10, 1996, in Town A and elsewhere in Canada, district of Abitibi, did touch a part of the body of A (1982-[...]), a person under the age of 14 years old, committing thereby the indictable offence provided by

section 151 of the Criminal Code . Count 16: Between November 11 th , 1996 and December 31, 1997 in Town A and elsewhere in Canada, district of Abitibi, did touch for sexual purpose a part of the body of A (1982-[...]), a young person towards whom he was in a position of trust or authority or being a person with whom A (1982-[...]) was in a relationship of dependency, committing thereby the indictable offence provided by section 153(1)

a) of the Criminal Code . Count 17: Between January 1, 1992 and December 31, 1997 in Town A and elsewhere in Canada, district of Abitibi, did commit a sexual assault on A (1982-[...]), committing thereby the indictable offence provided by section 271(1)

a) of the Criminal Code . [ 3 ] The accused denies his guilt on all counts. J. M. has represented himself. Many motions have been debated and disposed of before this judgment on the merit.

THEORY OF PROSECUTION [ 4 ] Prosecution contends that the evidence shows that the victims X, Y, Z and A suffered through their father’s sexual misconduct and that Z suffered violent corrections. [ 5 ] Prosecution contends that the testimonies of complainants were credible and trustworthy, that their memory as to the dates can be inferred from the content of their testimony and that as this is the memory of them being children and adolescents, ass alibi is not in question, the accused is well informed of the nature and extent of the counts of indictment, that they had reasons for delaying the criminal pursuits until after the death of their mother and that they did not collude neither exchange specifics at to the peculiarities of their respective complaints. [ 6 ] Prosecution contends that the testimony of complainants is credible and reliable and that they never indulged into any collusion in the present criminal pursuits against the accused. [ 7 ] Prosecution states that X, the eldest son, as he grew older and studied elsewhere was not a witness to his brother Z being abused physically, neither to Z being sexually abused. [ 8 ] Prosecution contends that X was the victim of a sexual abuse by his father as he was in the company of his brother Y and of his sister B around the age of 10 years old as his father showed them the vulva and clitoris of their sister B and as his father held X’s penis teaching on pre-ejaculation and as X was holding his father’s penis. [ 9 ] Prosecution contends that Y was the victim of several events of sexual abuse, of sexual touching, of gross and inappropriate sexual language and of a sexual offence when in camping with him and that the accused wrestled with him and others naked touching his sister and him and asking his sister to touch him. [ 10 ] Prosecution contends that Z was the victim of the accused criminal assault on the part of the accused on three different occasions, one when he was between the age of 5 and 10 years old and the two other ones when between 10 and 15 years old and that furthermore, the accused sexually assaulted him and his sister A at the time he was questioned on his sexual activities with girls, at which time the accused showed them how he masturbated and taught them masculine masturbation. [ 11 ] Prosecution contends that all of these offences were committed when they were living in Town A when their mother was absent. [ 12 ] Prosecution pleads that the accused is nowhere to be believed in any denial of any criminal offence, that he has essentially and throughout pleaded to no avail a conspiracy and collusion to burden him, that the offenses were duly investigated and the charges duly laid and that the evidence shows beyond a reasonable doubt the guilt of the accused beyond a reasonable doubt.. [ 13 ] Prosecution alleges that any discrepancies in the testimonies of complainants do not weaken the case but rather show the absence of any conspiracy or collusion in the charges being laid. [ 14 ] Prosecution alleges that the accused allegation of being of good character should not in the present case have any bearing on the

ultimate assessment of the evidence, that his having been a man of good repute when adopting his children or even when raising his children does not set aside the fact that he committed criminal offences against complainants and their sister A. The fact he referred to him as being a man of good character is not truly of relevancy in this specific case. [ 15 ] Prosecution did not produce any witness in rebuttal of the accused’s good character and good reputation evidence.

The allegations of Y on any violence suffered by him are totally irrelevant and useless in deciding on the guilt of the accused as there was no criminal indictment.

THEORY OF DEFENCE [ 16 ] Defence alleges that he is the victim of a collusion and of a conspiracy to pursue him, that the testimonies of complainants are weakened by their colluding and conspiring together, by their testimonies being not credible and untrustworthy and contradictory. [ 17 ] Defence pleads that no criminal sexual offences were committed by the accused that he educated them on sexuality and on sexually transmitted disease and that he was concerned for that purpose. [ 18 ] Defence alleges that although generally the testimonies of complainants are true, nonetheless he never indulged into any violence or any sexual wrongdoing against any of the complainants as the indictments so charge him. [ 19 ] Defence furthermore claims anew that these present proceedings are the result of an insufficient investigation, that further investigation would have demonstrated his reputation, his being of good character and it being totally unlikely that he would have indulged into the kind of behaviour that is claimed by Prosecution. [ 20 ] Defence first invoked that the proceedings were null and void since the beginning as the information had not been sworn and completed duly by an informant.

A photocopy of an information in his motion of the day showed the absence of any reference of a person being sworn in the information and of his legal right to so act. That was decided on the motion to quash presented by the accused.

Said motion was dismissed. [ 21 ] Defence alleges that he is the victim of a collusion or conspiracy on the part of his eldest son X then amongst the leaders of his nation, and that their attitude did corrupt his son and the whole process to which his eldest would be a party to. [ 22 ] Defence alleges that the accused was a victim throughout of the belligerent members on his wife’s side that disallowed and denied his right to contribute to the management of his nation and were a nuisance for him in the course of his career to namely represent as union A. [ 23 ] Defence alleges that the eldest victim is nowhere to be believed because he contributed in a leadership role to the present ill- founded criminal pursuits. [ 24 ] Defence also alleges that the eldest victim’s credibility is weakened not only by colluding or conspiring with his brothers in laying the current charges but that furthermore he made a promise to two daughters not adopted to reward them with part of the estate of his late mother. [ 25 ] Complainants Y and Z and X are said to have contradicted themselves and not having told the truth when they testified to what was their plan on that day where they went to make a complaint against the accused and that Y and X lied when they spoke of going to prepare boxes or carry boxes at their passed mother’s house as the boxes had already been packed by their sister B.

That would contribute to show the ill-intent of all and their colluding. [ 26 ] Defence alleges that there was no beating of Z on any way back from the airport as the accused did not have any more a plane and that there was no punishment associated to or that trip or any stealing of his mother coins as in any case the mother was not there at that time and that it is unbelievable that his mother noticed any bruises on the bum as he was the one giving the bath to his children. [ 27 ] Defence alleges that complainants are not to be believed in their complaints as they testified in a contradictory, inconsistent and malicious fashion as they timed their criminal pursuits in reaction to a default letter, as they offered different versions of their togetherness on the day where they went to the Town B SQ police department, of the accused regarding the family patrimony and estate of their passed mother. [ 28 ] Defence alleges that it was their mother who was a violent person and that he is the one who educated them and treated them respectfully and that he is known in the community to be a good decent man totally unlikely to have beaten his children or a man who would have sexually assaulted his children and that furthermore, if he would have corrected out of measure his children, the news would have spread amongst the members of his extended family and it would have showed, which was not the case. [ 29 ] Defence alleges that the documents he produced support his allegation of not being guilty of the counts as charged, that the documents speak to his good character and reputation, to their good times as a family and in his current companionship and marriage, to the difficult and sometimes good relationship with his former wife, to his attitude, to the attitude of complainants, to his being a learned man and academic and author, to difficulties he experienced namely regarding the family car and settlement of his rights in the estate of his wife and regarding the sharing of his first marriage patrimony, to the discrepancies in complainant’s versions.

PRINCIPLES OF ANALYSIS OF THE EVIDENCE [ 30 ] The rules as developed by the Supreme Court of Canada regarding the analysis of the evidence do apply. Namely, the accused benefits until a verdict is arrived at of the presumption of innocence. The accused does not have to prove anything. All of the elements of the infraction must be established beyond a reasonable doubt. For that purpose, the Court has to assess the credibility and trustworthiness

of witnesses heard. [31] In any case, the Crown has an obligation to prove guilt beyond a reasonable doubt. The conclusions of the judge should demonstrate a fine appreciation and assessment of the whole evidence W.(D.)[1]. That reasonable doubt can be on an essential element ofan infraction or on a means of defence. [32] As the Supreme Court so affirmed and namely in Queen v. MacKenzie, (SCC), [1993] 1 R.C.S. 212, theevidence shall be assessed in its entirety and not element by element.

The accused does not need to contradict the evidence ofprosecution to benefit from the reasonable doubt. […] The judge has to decide if the evidence as a whole does satisfy him beyond areasonable doubt of the guilt of the accused. An accused does not have any burden to show that the accused does not say the truth.Prosecution has to show beyond any reasonable doubt that truth as proposed.

To impose upon an accused the burden of showing that acomplainant is lying would atrophy the presumption of innocence. [33] The Honourable Patrick Healy of the Quebec Court, did on the assessment of credibility of witnesses say the following: “Thecredibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanor of the particular witness carried conviction of truth. The test must reasonably subject his story to an examination of itsconsistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-witted, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience incombining skillful exaggeration with partial suppression of the truth.

Again a witness may testify what he sincerely believes to be true,but he may be quite honestly mistaken. For a trial Judge to say “I believe him because I judge him to be telling the truth is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind[2]. [34] These principles have been repeated in several decisions of the Supreme Court of Canada[3]. Questions such as the presumption of innocence and the assessment of the evidence are not merely questions of form but of substance[4].

There is no automatic formula to be followed in the assessment of the evidence. The verdict arrived at should demonstrate a careful examination of the evidence[5]. [35] A reasonable doubt cannot be frivolous or imaginary. It must be based on good common sense and on reason. Any reasonabledoubt should be inferred from the evidence or its absence. GROSS INDECENCY AS DEFINED [36] The Criminal Code does not define indecency or gross indecency.

The Provincial Court of Nova Scotia in 2013 points to whatare the elements that contribute to label indecency or gross indecency[6] : The term indecency is not defined in the Code. Historically, anindecent act was determined by community standards. More recently, however, for

an act to be indecent it must exceed the communitystandard of tolerance, which requires a consideration of what harm or risk of harm will accrue from the allegedly indecent act. Therefore,for

an act to be indecent it must exceed the community standard of tolerance, which requires consideration of what harm (or risk of harmwill accrue from the allegedly indecent act. Obviously, the greater the harm that may flow from a particular act, the less likely thecommunity will tolerate others being exposed to it. In other words, tolerance cannot be assessed independently of harm. Thecircumstances surrounding the act must be taken into account when applying the test to determine indecency. As such, the audience,place and context are essential elements in the determination of indecency (R. v.

Jacob (1996) (ON CA), 112 C.C.C.(3d) 1 (Ont. C.A.)). [37] R. v. Chase, [1987] 2 R.C.S. 29 10 While it is clear that the concept of a sexual assault differs from that of the former indecentassault, it is nevertheless equally clear that the terms overlap in many respects and sexual assault in many cases will involve the samesort of conduct that formerly would have justified a conviction for an indecent assault. The definitional approach to indecent assault, alsoan offence not defined in the Criminal Code, therefore offers a guide in our approach to the new offence, as recognized by LaycraftC.J.A.

After many years of dealing with the concept of indecent assault, the courts developed the definition, “an assault in circumstancesof indecency. This, of course, was an imprecise definition but everyone knew what an indecent assault was. The law in that respect wasreasonably clear and there was little difficulty with its enforcement. In my view then, a similar approach may be adopted in formulating adefinition of sexual assault. [38] R. v.

Swietlinski, (SCC), [1980] 2 R.C.S. 956 The law has been settled that an indecent assault is an assault thatis committed in circumstances of indecency, or as sometimes described, an assault with acts of indecency. What acts are indecent andwhat circumstances will have that character are questions of fact that will have to be decided in each case, but the determination of thosequestions will depend on an objective view of the facts and circumstances in relation to the actual assault, and not upon the mental stateof the accused. This view has been expressed in R. v.

Resener [ (BC CA), [1968] 4 C.C.C. 129.], in the BritishColumbia court of Appeal, a case which reviewed various authorities on the subject, and which was referred to with approval by PigeonJ. in this Court in Leary v. The Queen (SCC), [1978] 1 S.C.R. 29.], at p. 57. This was, as well, the view expressed byMartin J.A. for the Ontario Court of Appeal. In dealing with this case, he said: The definition of indecent assault, which has long beenaccepted in England, is an assault accompanied by circumstances of indecency on the part of the accused towards the person assaulted:see R. v. Leeson (1968), 52 Cr.

App. 185 at p. 187. In my view, the Canadian and the English law do not differ in this respect. In R. v.Louie Chong (1914), (ON CA), 23 C.C.C. 250, the Appellant seized hold of the complainant and offered her money foran immoral purpose. It was contended on behalf of the Appellant in that case, that an indecent assault is not committed unless the actconstituting the assault is itself indecent in its nature; that all that the Appellant did was to take hold of the complainant, and the wordsused by him did not import indecency into the act. This Court, in affirming the conviction, held that

an act which is ambiguous may beinterpreted by the surrounding circumstances and the words used by the accused. Middleton, J., speaking for the Court, said at p. 251:—It is in each case a question of fact whether the thing which was done, in the circumstances in which it was done, was done indecently...and later: In any event, the judgment of the Court of Appeal of British Columbia in R. v. Resener, supra, holding that a specific intentto assault indecently is not a necessary element of indecent assault was cited with approval by Pigeon J., delivering the majority

judgment of the Supreme Court of Canada in Leary v. The Queen, [1978] 1 S.C.R. 29, at p. 57, and we must now take the law in thisrespect to be settled. The only intent required for indecent assault is the general or basic intent to do the act which, in the circumstancesin which it was done, in fact, constitutes an indecent assault. I accept the submission of Mr. Ewart for the Crown, that if the Appellantremoved the deceased's dress against her will, that act was capable of being an indecent assault, irrespective of the Appellant's purpose. [39] R. v. A.B., [1955] A.J.

No. 41 (C.A.) Indecent assault is not defined. In Beal v. Kelly, [1951] 2 T.L.R. 865 at 867, [1951] 2 AllE.R. 763 at 764, Lord Goddard C.J. said: In my opinion, the definition in Arch bold on Pleading, Evidence and Practice in CriminalCases (32 ed.) at p. 1067, of an indecent assault is right: 'prove an assault, accompanied with circumstances of indecency on the part ofthe prisoner', that is to say, indecency offered towards the person said to have been assaulted. If ... there is a hostile act with everycircumstance of indecency, I cannot see why it is not an indecent assault.

If a man assaults a woman, at the same time exposing hisperson to her, I have no doubt that it is an indecent assault on a female. [40] In Rex v. Louie Chong (1914), (ON CA), 32 O.L.R. 66, 23 C.C.C. 250, 13 Can. Abr. 387, Middleton J. said:“It is in each case a question of fact whether the thing which was done, in the circumstances in which it was done, was done indecently.If it was, an indecent assault has been committed. [41] R. v.

Quinton (SCC), [1947] S.C.R. 234 : If common assault be an included offence in a charge of attempted rapeas held by the Court of Appeal, and there can be no question but that such an assault would be

an act within

section 72, then such

an act,though in itself ambiguous, may, interpreted by the surrounding circumstances, including words spoken at the time, amount to indecentassault; Rex v. Louie Chong [(1914) (ON CA), 32 O.L.R. 66.]. It is not necessary that the act constituting the assaultbe in itself indecent in its nature. If the assault, coupled with the intention required by

section 72, is of such a nature as to constitute anattempt within the rule as laid down in Rex v. Robinson [[1915] 2 K.B. 342.], such assault must necessarily be indecent; Rex v. LouieChong [(1914) 32 O.L.R. 66.]. In other words, the crime of attempted rape progresses from assault through indecent assault to thecomplete crime. If the facts of the suppositious case referred to by Roach J.A. amount to the offence of attempted rape, the assault itselfnecessarily becomes indecent. This would appear to have been the view of the majority in Wright v. The King [ (SCC),[1945] S.C.R. 319, at 322.]. [42] R. v.

Fiset [1953] R.L. 432: There is no doubt that in the two circumstances, the accused Fiset committed a very pronounced,disgusting and revolting indecency, but such conduct on his

part cannot constitute the criminal offence indicated in cl. (

a) of s. 292(which is what he is charged with in both cases) insofar as there had been assault on his part upon the child concerned.

Section 290 of theCr. Code defines an assault or

an act of violence, but it does not define the expression “indecent assault” which however is easilyexplained by itself. As one of the counsel for the accused has pointed out, citing Tremeear's Criminal Code, 5 ed., p. 334. Thecommonest form is, of course, touching, or attempting to touch, the private parts of another. The same citation continues by saying “butthe offence is by no means confined to such cases. All the same, there must have been some sort of real assault, the application ofphysical force to a certain degree by the accused (R. v. Landry, (NB CA), 64 Can.

C.C. 104, [1935] 3 D.L.R. 639, 9M.P.R. 254).[…] 20 Here, in both cases before us, the evidence of witnesses for the Crown does not establish a real assault to any degreewhatever on the part of the accused, Fiset, or his application of physical force to a certain degree in regard to the two children concerned.However, this evidence, taken as a whole, indeed shows more than a preparation in both cases on the part of the accused to commit anindecent assault, but certainly an attempt on his part to commit it.

His invitation to the children to enter his house, his immediate indecentexhibitions, his requests to touch his private parts, his offers of money to do wrong, the fact of young Gaetan Beauchamp seizing an axeand wanting to strike the accused with it if the latter did not stop his gestures, which can be attributed as well to the fear that he hadof Fiset as to the disgust that the latter inspired in him etc., all of these circumstances have convinced me that there was indeed anattempt here to commit an indecent assault by Fiset. [43] The act of masturbation was defined in a public context as

an act committed voluntarily in the presence of others inasmuch as theother person is not participating to it and does not make believe to wishing to so participate (Judge Randall Richmond of MontrealMunicipal Court)[7]. [44] Indecency calls for the act of indecency being volunteer and in the presence of at least one other person (section 173 of theCriminal Code)[8].

It speaks of a marked departure regarding the decent behavior expected of other citizens in the same context.[9] ANALYSIS OF THE EVIDENCE [45] CREDIBILITY AND TRUSTWORTHINESS OF THE ACCUSED IN HIS DEFENCE AND WHETHER, THEACCUSED VERSION RAISED A REASONABLE DOUBT JUSTIFYING ACQUITTAL - Time has come to assess one step at thetime the question of reasonable doubt and determine if the accused version is credible and offers a defence or if the accused is notcredible, assess if the examination of his version in the context of the whole evidence raises a reasonable doubt.

Any affirmative answerto these two questions will end the hearing and a verdict of not-guilty will be declared. [46] GENERAL DENIAL – The accused says: «I’ve done none of the things that I’m alleged to have done.[…] There’s no event thatwould involve me in the doing something inappropriate or something that somebody would feel bad about later.[…] I have enoughexperience as a victim and as a person who’s lived a long time but as a parent who takes very seriously the role of being a parent.[…] Ihave no confusion on my mind that I may have unwittingly inappropriately («unintentionally» he will say thereafter) touched somebodyeven when I may have been invited to.

It’s something … I refuse to do. […] « (transcript April 7, 2020, page 8 and 9) [47] SPECIFIC DENIAL OF ANY SEXUAL INAPPROPRIATE GESTURE - «So, when it came to things like anything thatcould be understood as sexual, like for example, masturbation or playing with somebody’s penis or that sort of thing, I did not do that. Ata teaching moment, not as a sign of affection or anything like that» (transcript April 7, 2020, page 32)». I think it is going to hurtsomebody’s feelings. It’s not something that …] an individual is going to be able to escape the consequences as well.

I think itundermines a normal relationship, normal, healthy, loving relationship with another person regardless of his health» (transcript, April 7,2020, page 42). [48] GOALS FOR HIS FAMILY – J. M. presents himself as being quite a parental model, a man that knows better and has made

sure that his children would not suffer the same difficult experiences he refers to generally as having gone through in his childhood and youth. He wanted to foster and create an environment quite unlike some of the families that are undermined by problems of violence or alcohol or drugs. [ 49 ] KNOWLEDGEABLE AND ABOVE REPROACH - Moreover, he speaks to these issues with an alleged convincing knowledge and, knowhow. He is a man who appears quite sensitive to behaving appropriately, as if in the eyes of the public.

He wants his family and children to be a fruitful and flourishing milieu of growth and life and he has chosen to do things in family and with his children that will serve these goals. He identifies himself as a good, decent, active and respectful father who never indulged into any of that behavior that is reproached to him.

He invites the finding that his parental capacities and conduct were such that he was actively involved in their well-being and would not indulge in the occasional violence his wife may have exerted at times on the children or in these offenses that he is indicted with. [ 50 ] AN ACTIVE PARENT - There is no doubt that the accused wanted to be an active parent and that he could express to the court in a gifted, structured and even learned ways his views on how to educate and accompany his children.

No doubt, he was in for the adoption process and was well seen by agencies, institutions or social or specialized intermediaries. Some photographs speak to his pride. They show moments of togetherness, of apparent well-being, without however these photographs speaking to more than snapshots of likely happy times. [ 51 ] SHAKY AND UNTRUSTWORTHY TESTIMONY - The accused testimony shows to be not credible, vague, undetailed, unbelievable, incoherent, reluctant and aiming at distracting from the reality issues, ambiguous and deceptive. He did not testify in a truthful manner.

It is not that he did never speak to some truth. He was choosy and not frank. He is a master at trying to avoid issues, at responding to questions in getting suddenly theoretical, impersonal, changing the perspective, the point of view so he would not openly testify to questions of nudity, nude wrestling, would invite a totally unlikely look as if he was way above when the whole of the evidence undoubtedly situated him in the action of wrestling nude.

The accused’s version failed to inform transparently the Court. [ 52 ] On the nude wrestling with his children, he says: I would never do that because it would introduce them to all sorts of questions and experience long before they were ready for it. It’s not something I’d be into. If they were to start behaving that way, I would act like a referee and say, I’m enjoying this wrestling… I’d like to continue but you got to keep your clothes on. You know somebody might walk in and not understand. You might not understand, but you need to keep on your clothes (transcript April 7, 2020, page 50).

This is a strong denial of any tolerance as to nudity and the accused is disbelieved on not insisting that they do not wrestle naked or that they put on their clothes before continuing. But he is disbelieved that he was not active with them. He answers also the other way, in a contradictory fashion, saying that if it would have happened, he would have acted as a referee when indeed he participated in that nude group wrestling.

It is again centered on giving the right answer but he’s answering as a teacher but not compromising him and certainly not saying the truth that appears globally basic. [ 53 ] – On wrestling, the accused puts the emphasis on the others willingness, that it would be so « probably after supper, it only involved people that wanted to, which was usually everybody. It took lot of effort on my part… If I feel that we’re getting beyond that […] I’d ask them to tone it down or let’s do something else or something that way (transcript, April 7, 2020, page 52).

He puts emphasis on his children’s willingness which I do not doubt and an admission that if it got out of hand that he would redirect the action, invite to simmer down or do something else. But it doesn’t speak to his being involved whereas it became clear that everyone was involved and it is believed that he would join in and wrestle and tickle. It may not have been all the time with everyone but such was clearly the action in which he involved himself and even naked, namely in the absence of the mother. The whole of the evidence speaks to his presence naked.

He is not believed on not getting involved even naked. He is not believed on that referee role. [ 54 ] Indeed the accused speaks to the sole purpose of wrestling without completing his phrase to simply say that it wasn’t spontaneous. It was something that was a helpful of an evening, you know (transcript, April 7, 2020, page 52). And so the idea of that wrestling time happening, was disjoint from other things that needed to be done, that’s not the case.

And it’s very difficult to me to think back to a moment where, first of all, wrestling was in the nude… I’d be wrestling and X, I’m guessing at… at an older age would come up and people nude (page 53-53). I can’t think of a memory that would come even close, misconstrued, misunderstood like that , I can’t even think of a time where X was around, when Y and B or Z and C were with us, because X did come home for a holiday, because it was holiday for school, he stayed in the vacant house owned by a teacher (transcript, April 7, 2020, page 53).

This was a time to testify clearly to his not involving himself in nude wrestling. His alleged difficulty to think back to such a moment of nude wrestling is a reluctant and unbelievable answer. He is not believed on not thinking of a memory where there was that kind of nude gathering, needless to say then nude wrestling or nude teachings on sexuality. [ 55 ] The accused situates so ably the impossibility or unlikelihood that X would join when at an older age. That is so. X would not join when older. That was not the testimony of X who spoke of being ten years old when that happened.

Once again, he is affirming what is clear, that it did not happen when X grew to be of older age as X did not join even when once he was a witness to nude wrestling. He slaloms trying to never enter into affirmations that are not true. But he did not say the truth on his participation, on his nude participation. But he will refer to his alleged teachings on sexuality. [ 56 ] As the accused stated, «So the possibility of him, you know, coming in a nude wrestling match, it’s not possible because the wrestling matches that I was usually involved in… would not.

They did not require and they wouldn’t accept nudity (transcript, April 7, 2020, page 54). [ 57 ] Once again the accused answers for others and answers in a mostly impersonal way when the whole reality and context speaks to nude wrestling happening. The accused does not speak truthfully to what happened and became confused and mixed-up on what was the reality. It is unbelievable that his memories could not be clear with such striking events of nude wrestling. That is so for the accused who testified to joining with difficulty these gatherings.

His across the board denial suffers from memory difficulties, from a thinking that is not clear. Totally unlikely. Suddenly, he does not deny nude wrestling, whom, wouldn’t accept nudity. Who is whom? Except for X as he grew older. He is unbelievable. [ 58 ] Now, he testifies in distancing himself regarding the real issue. He acknowledges that the possibilities of nude wrestling saying

that it was not required, which is quite a declaration, opening the door to the fact that it did happen and moreover, saying that it would be the children who would not so accept. This is far from saying the neat answer that he did not permit that and that this was a decision of his and that he would not partake in that. [ 59 ] But that is how close he came to admit or simply redirect his answer that was compromising, getting into another affirmation escaping the line of answer he had entered.

Once again, he gets away from answering in speaking of times where X was not there anymore, or where likely X was rarely home. So when he suddenly speaks to a possibility of X coming in a nude wrestling, he will say that it’s not possible because the wrestling matches he was usually involved in, would not…did not require nudity… and then saying that nudity would not be accepted. [ 60 ] This is as much slalom around the question as someone who speaks about an event can do.

He was at different times trapped into speaking to the real issue of being nude with his children, at times playing and that is so clear, so unequivocally clear and again, that the accused was involved naturally in being nude with his children at times, several times and there again he crashes into a vague but compromising allusion to it. [ 61 ] The accused was not truthful, his testimony became evasive, he was confused and even showed contradictory. [ 62 ] Once again, he is right and so is it understood that wrestling was not a problem for X. It became a problem when it became nude wrestling.

Especially as X got older and he was older. Even Y testifies to X stepping away when it turned out to be nude wrestling. The absence of X as he grow older away from any nude wrestling is not an issue. [ 63 ] ON CORRECTION - The accused testimony in matters of education and correction shows a namely a great understanding of those questions, on what education should be and not be, on what should be and should not be.

He demonstrates a principled approach, his developed and acquired knowledge of what are the alternatives to physical correction and the importance of otherwise educating, and being otherwise brought up quite unlike the one he went through and he suffered. [ 64 ] The accused stated that he never believed in corporal punishment. […] I didn’t strike somebody or …punish somebody in a strange manner.

What I did and C… was the same… was the same… was they would be grounded for a night or two or they would be left out on something fun or interesting that the others were going to do… (transcript April 7, 2020, page 11-12) but it didn’t take any punishment or… or anything physical to remind them of the deal in exchange for respecting very few simple rules, they were certainly rewarded very well for it (transcript 2020.04.07, page 13).

There’s never been any such thing (referring to beating where there were marks left), you know, beating where there were marks left […] And in the kind of household they lived in, they had cousins coming in and out . I never had any sense that I had the kind of privacy that would allow the child… or have a child hide any kind of evidence of being physically abused (transcript 2020.04.06, page 42). [ 65 ] The accused refers to the fact that, should he have molested, spanked or beaten up his sons, the neighbourhood of relatives and cousinhood would have become aware of any such ill correction.

It was alike a hint that in any case, he never treated them to the point that they would be bruised, that no one could see that, that in any case the mother was the one who had been brutal on her children and that he did not do so. [ 66 ] He testifies to his children speaking the truth except on criminal charges and except on what got them to lay charges. And the accused is disbelieved. He is good at enumerating principles of education. But in practise, he is not believed. He is unbelievable and he does not speak the truth.

Once again, he is undetailed and denying as well as he rarely situates events in their context. His allegation of having no more airplane on that day where Z came back home walking is noted.

The veracity of Z’s statement of having been severely corrected and then given a reward will be examined in context. [ 67 ] But what the accused is charged with, when it was not the nude wrestling or the sexual touching of Z and his sister or the spanking of Z, happened when they were alone with him. [ 68 ] The accused‘s truth is the way he wants to be remembered, namely for what he showed and wanted to be seen as acting in a distinct way unlike some other families.

He is a proud man who denounces violence and wanted the community and people exterior to the family to see him and his family as good, decent and distinct not subject to evils such as alcohol, drugs and violence. [ 69 ] THE ACCUSED COHERENCE, GOOD CHARACTER AND BEING THE VICTIM OF HIS CHILDREN OF THE SQ POLICE OF THE CONSPIRACY OF ALL AROUND HIS ELDEST SON X – The accused pleads his coherence in line with his knowhow, his being the victim of his children and opposes what is generally an undetailed vision of the facts.

The accused story is unbelievable when time comes to address the specific allegations of criminal wrongdoing. [ 70 ] PROPENSITY TO BE GOOD - He testifies to his “propensity” to be good, to being of good character, to being a responsible parent incapable of any physical correction, of his having so much know-how, of him being very educated on these matters and indeed showing that much, on him having learned the hard way in his childhood the importance of raising well his children, developing a family life that prevents abuses he was the victim of or has seen, that fosters family set-up clear of alcohol and drug problems.

His denial is radical and resounds. He pleads that he is the victim of others and his sons colluding and conspiring against him. He says he is the victim of his eldest son colluding with community leaders and with the SQ to hurt him. [ 71 ] UNDETAILED VERSION OF THE ACCUSED - His testimony remained vague, very much undetailed. It does not circumstantiate generally or precisely the incidents described by his children.

This is so as he was invited on numerous occasions to respond specifically to the complaints of his children. [10] His denial of any physical and sexual wrongdoing is unbelievable. [ 72 ] CONDUCT WITHOUT ANY VOLONTARY OR INTENTIONAL SEXUAL TOUCHING -He acknowledged his children undressing in their gathering room only when about to go and take a bath. He denied any sexual touching of his children save for their baths or, if it happened, it would have been unwittingly, which means involuntarily, and unintentionally as he will specify.

But he did not comment specifically on events of sexual or physical wrongdoing, except to deny. On that, the accused did not testify easily, neither in a trustworthy fashion. The accused did come along with an allegation of educational purpose but never situated his teachings or simply

denied any event in their context. It certainly was a slippery slope daring speak of sexual education when the criminal incidents denounced were alleged to have at times been the occasion for the teachings and for the sexual demonstrations of the accused. [ 73 ] In context, defence denies the events described by the witnesses and does not situate what would have been educational streaks, or what in the event made the whole course of facts an educational opportunity.

The accused denies any sexual wrongdoing in such a general fashion and pleads that any such allegation is false. [ 74 ] Indeed there was some wrestling of which he spoke as then being the referee if they would turn out to be nude just before their bath wrestling come to an end The accused is unbelievable in the way he says he addressed sexuality problems.

He denied in bulk any sexual allegation and he did not discuss the allegations of showing an interest in the personal sexual partners or well-being of his sons and on his tendency to interfere in their intimate life through his questions on their pleasures and intimate partners. His denial was an across the board denial and of course.

Nonetheless, he was heard speaking of his concerns regarding sexually transmitted diseases in his community. [ 75 ] So, alleging that if there had been some intimate touching, it had to be unwitting or unintentional when he firmly denies any opportunity as he testified to, calls for a rather neat finding that, for the accused, nothing purposely or openly sexual ever happened in considering the whole circumstances. But in the context of the whole evidence, his version is not raising any reasonable doubt. [ 76 ] He does not set any other context to their gathering when all ended by being nude.

He does question that. He does not speak to his own nudity and denies any sexual inappropriate move. It is quite peculiar that the nude gathering are only practised in the absence of the mother. It is not that nudity is necessarily a criminal issue. It is not that he doesn’t speak of the children turning out to be nude but he does not inform the court of the circumstances of the alleged acting out, save to speak to the coming bath of his children. [ 77 ] He testifies reluctantly, vaguely and impersonally on many issues key to this case.

His denial suffers in the whole of the circumstances of being undetailed although it is well known that the accused need not testify to benefit of the presumption of innocence. He chose very often the form of a very general denial to counter the allegations of improper criminal conduct. [ 78 ] The accused is disbelieved in his version and his version does not raise in the context of the whole evidence any reasonable doubt. The accused truly has no trustworthiness. Much more will be said on the frailties and incoherence of his testimony and on his behavior.

BURDEN OF PROSECUTION TO ESTABLISH THE GUILT OF THE ACCUSED ON THE WHOLE OF THE EVIDENCE [ 79 ] GRUDGE, BITTERNESS, ACRIMONY AND UNFORGIVING MEMORY - Complainants have shown in their testimony considerable resentment, acrimony and bitterness and a grudge towards their father and they are not forgiving him for what he did and they have no willingness whatsoever to be in touch with him.

They are clearly antagonistic to the accused as if there was nothing that could bridge their life. [ 80 ] CREDIBILITY AND TRUSTWORTHINESS OF COMPLAINANTS – That attitude of complainants in no way questions their integrity and the truthfulness of their statements and testimonies. [ 81 ] What each of the complainants denounces as victim or witness, is said simply, is detailed, without any exaggeration but certainly all the way with lots of emotions and resentment towards their father. [ 82 ] There is no evidence that interferes with the honest and sensitive account of X.

He never exaggerated his account of the facts. He was honest, sincere, true and emotional. Notwithstanding the brothers antagonistic views of the accused, nowhere is there any place to think that the counts of indictment are not the truth. [ 83 ] In all fairness to complainant X, it can be said that X was fair, rapidly wanted a notary to manage the estate of his mother, that he is the one who attempted to set aside ill feelings when dealing with the estate of the mother and was agreeing to the accused having his fair share of the patrimony or estate as would be the case.

This is why a notary was perceived as a necessary third party with no view whatsoever in depriving the accused of any of his rights. He had to be convincing enough regarding that solution with his brothers and had, insofar as he was concerned, a very liberal view of those who should get a share in having shared their family life with them over the years. That was no attempt to deprive the accused of any legitimate right he had. The father’s accused letter of default or claim sent to his children did not induce any of the complainants to collude on the truth.

They had a vivid souvenir of what had happened and they spoke of their truth and what they went through many decades ago. It may have added to the current feeling of bitterness. But X thought of it in the most proper fashion. It had to be managed by a third-party alike a notary. [ 84 ] X at first felt in his first communication with the police as he wanted to reveal he was also a victim of his father, that he was not greeted with trust or that it was perceived more as a political ball. X raised the subject of his having been a victim at the time he was with an SQ officer in the context of the Viens Commission.

It was at a time he had heard personally painful stories of victims. He wanted to know how he could himself lay a charge against his father. The first police officer he spoke to about his grievance did not understand that X was serious. But that officer’s reaction cannot be the gauge as to the strength of the evidence disclosed by X, neither will it colour the steps taken by X as an attempt to collude. When that officer understood it was a personal and serious complaint and not a hypothetical question, X was referred to Officer Ayotte.

The contextual first reaction of a police officer involved in the workings of aboriginal complaints against the SQ did not show that X’s claim had been taken seriously and it should certainly not guide the Court in the assessment of X’s credibility or trustworthiness. This was far from being theoretical. [ 85 ] The whole testimony of X was solid, coherent, credible, detailed, careful, not exaggerated and heartfelt.

In the whole of the evidence, X’s testimony alike the ones of his brothers are very detailed, credible, truthful and convincing. [ 86 ] The accused claimed that he had suffered so much when raised as a youngster and that knowing that much, he could not and did not indulge into any such criminal conduct because he was brought up to understand the necessity of never indulging into these types of offenses. He alleges that he was principled and coherent. However he was not at par with his principles. He was not only behaving in a

grey zone or clear red zone but he dared indulging at times otherwise than what he fostered. The incoherent, vague, untrustworthy and sometimes undetailed account of the events given by the accused does not speak to the reality of what he imposed on complainants. [ 87 ] X spoke to that distance he gradually took from his father: That was the same with his brothers. «From the time, we were young… especially as teen agers, when we started being more assertive, and there were times where we didn’t want anything to do with him.

We didn’t even want to be seated at the same supper table with him… because we’d be upset about what was going on. It was my mother […] who would ask us «Please, you know, for me. For me, just act normal. For me, just sit down and have supper with your father. For Me, answer his phone call[…] It was always somebody’s else’s fault why his children wanted nothing to do with him […] talking about this publically would have destroyed her.(transcript 2020.01.21, page 82, 83) Y will speak to his mother also compelling him to speak to his father and that he didn’t talk to him since his thirties.

Y even spoke of how upset he came to understand that his father was present with his mother during the vacation of his children. (transcript 2020.01.22, page 16, 17) The accused did speak to the fact that he had very little communications for a very long time with X. X was very blunt with the fact that if his mother was alive, he doesn’t believe that he would have said anything. (transcript 2020.01.21, page 66) That and much more speaks to how antagonist the brothers were to the accused.

And when the accused became aggressive on property issues after the death of the accused’s wife, X showed how much it was true that they had delayed the present criminal pursuits because of their mother protective role of the accused when she was alive. (transcript 2020.01.21, page 77) [ 88 ] NO COLLUSION - The evidence does certainly not permit to believe that any of the complainants ever agreed to secretly or illegally act together in order to deceive him, cheat him or have him pursued unlawfully or illegally. They did not convene of their respective versions. Their versions are so diverse.

Sometimes, they have observed the wrongdoing of the accused on others. The brother’s communications are far from evidencing their colluding to have the accused convicted. No reasonable doubt can be inferred from their attitude or testimonies in the context of the whole evidence. The slight diversity of what led them to go at the police station does not in any way whatsoever speak to more than having an understanding that they would wait till their mother had passed away to pursue criminally their father.

They had a perception and a general knowledge that was at most general that the father’s behavior had hurt each of them. They are believed that they did not discuss the details of their respective stories. [ 89 ] Z and Y, the brothers decided even reluctantly to go at the police station to state in very different stories their experience of their father that were different from one to another. X had done it previously. Each of these accounts speak strongly and credibly to each of them having been a victim of their father.

Whether they acted to go at the police station having some other plans in mind remains likely. Z had not convened of anything with the others. X was facilitating the transport. There was no collusion or conspiracy to charge falsely, fraudulently the accused. Was the letter of default of the accused a key factor in getting them to take the steps to lay a complaint?

It was certainly not key, neither does it colour the trustworthiness of their complaints and testimonies against the accused. [ 90 ] The fact that the siblings kind of agreed not to pursue these matters when the mother was alive again does not show any complacency on truth, or any compromise regarding the truth (transcript 2020.01.22, page 5). As Y said “It wasn’t really a conversation, but it was something that we all knew […] we knew it was going to happen. Y said loud and clear that as he in the past wanted to see him, talk to him, and confront him. That’s why we’re here, right. That’s the whole thing.

And as there were talks to get the accused boxes to him, X said “it’s probably not a good idea (transcript 22-01-2020, pages 4 and 5). [ 91 ] So when Z and Y, convened to go to the police, it was on that day where there was some planning of going north to pack his mom’s things or taking some boxes to his father which did no t please X. Z thinks that he went straight to the police station of Town B as he would have had a call from the SQ officer. [ 92 ] But clearly, it was not until they got to the police station that they decided to meet the police officer or quite simply if they would denounce the accused.

Once again, that was not an easy process or move to lay a complaint. As Y says at page 10 of his testimony on January 22, 2020, «It was our choice… I’m doing this but it’s up to you guys. You don’t have to go through this. […] We didn’t say anything. We didn’t make a decision.

We just kind of thought about it, I thought about… because I was thinking “If I do this, this is where it’s going to start [… ] And I… I was thinking all right, this is kind of soon[…] Then X went in and then we were talking Z and I. (transcript January 10, 2020, page 10) [ 93 ] Each with their respective doubts of it being the right thing to do in their personal life.

Once again, it was clear that laying a complaint was their personal choice (transcript 2020.01.22, page 10) Y said that then he was trying to get his life back and thought this is going to fuck it up even more.[…] Z and I said “I guess it’s time we do this. We’ll go in too. Well I decided. I said I’m going to go, I’m going to go in.

Z was still undecided (transcript 2020.01.22, page 10 and 11). [ 94 ] Z did not keep the souvenir of going packing but rather of going to the Town B police station of the SQ. and that he couldn’t keep this inside anymore and that, you know, growing up with all of these things… all those tragedies, I felt that I needed to deal with it because I can’t go on with my life with remembering those abuses that I experienced. (transcript, 2020.01.21, pages 159,160) I didn’t discuss any details of my facts… (transcript 2020.01.21, page 172) Z speaks to his brother not telling him he wanted to take him to Town B but simply telling him that he wanted to meet with me…that nonetheless he could easily make the arrangement to drive up there, that he didn’t know at that time that Y would be coming and making a statement. (transcript 2020.01.21, pages 173,174) And for Z, X was not going to be met by the police officer. (transcript 2020.01.21,page 175) But the sole purpose of going up there was to do the interview with Detective Ayotte. (2020.01.21, page 176) And if Y does not remember if a default letter was received from the accused some time before, Z does so recall and he affirms that he did not discuss the details of what happened to him with his siblings, neither the procedures in general as X said in his testimony (transcript 2020.01.21, pages 177 and 178). [ 95 ] No doubt that they developed each on their own a personal heartfelt feeling that the accused had acted criminally against their persons and even against their siblings. [ 96 ] Indeed X knew a bit of the accused illegitimate if not criminal conduct towards Y.

Y knew that much for his brother Z and they all knew or suspected that their sisters suffered also from the criminal conduct of their father as a result of their observations or discussions with their mother.

[97] No collusion took place between the brothers regarding the criminal pursuit that got engaged. In no way, did the default letter ofthe accused induced the complainants into collusion. X was the first to lay a complaint before his brothers did and before there was anyletter of default of the accused. It is well understood that X wanted an independent third party, namely a notary to liquidate thepatrimony of the deceased mother.

The objective notwithstanding their animosity against the accused was that the accused would receivehis fair share of the estate of the deceased wife of whom he had been separated for years and of the family patrimony. This was sonotwithstanding their acute bitterness against the accused. [98] The versions of all three complainants are believed.

They are trustworthy and they testify with convincing details as to thecommission by the accused of criminal offences he is charged with. [99] Furthermore, there was no collusion with any administrative, political or police powers that got the complainants to pursuecriminally the accused.

In the context of the whole evidence, I do not see in that everlasting struggle of the accused with the governanceof his nation or even in his eldest son’s dealings with any of the authorities governing his nation or the police system, the glimpse of anyevidence that the victims did not tell the truth or that the current proceedings are the result of any collusion or that there was anyfraudulent interference leading to the present criminal proceedings. [100] There is no believable hint of any initiative on the part of anyone, personally or institutionally or professionally or amongst thepolice task force or within the siblings that has illegally or illegitimately even slightly interfered with the course of criminal proceedings. [101] The ongoing and everlasting disagreements in which politically or administratively or professionally the accused has beeninvolved into, have not in any fashion whatsoever interfered with the course of the current judicial process.

The present proceedings are aresult of unfortunate events that the victims have suffered through the criminal fault of the accused. The brothers had that silentunderstanding that their father had been wrong, that if he had been wrong with one, he had been wrong with others, without there beingany specifics as to what happened. Nothing that would come out when the mother was alive.

But her passing away quite suddenly openedthe pathway to their respective decision to have their father pursued criminally. [102] GOOD CHARACTER – The accused invokes his good character to adduce evidence of the nature of raise a reasonable doubt. [103] The case law on good character being invoked by an accused in matters namely of parental sexual misconduct on children is quiteclear but each case is different and should be judged on its merits. [104] The Supreme Court through the opinion of Judge Sopinka affirmed that “The reasons of the trial judge must be viewed in light ofthe fact that as a matter of common sense, but not as a principle of law, a trial judge may take into account that in sexual cases involvingchildren, sexual misconduct occurs in private and in most cases will not be reflected in the reputation in the community of the accusedfor morality (R v Profit (SCC), [1993] 3 SCR 637).

The Supreme Court then affirmed the possible limits of a defence ofgood character for alleged sexual infractions on children. Judge Richard Marleau of the Quebec Court in R c JG QCCQ 12786, atparagraphs 29-31 affirmed that a Court should not be blinded by the flawless unblemished record of a person and for that reasonconclude to the innocence of that person[11]. [105] In Snook v R, 2014 NBCA 524, the Appeal Court stated that “While publicly portraying himself to society at large as doer ofgood, privately he has preying upon his community most vulnerable.

Indeed, good reputation should not blind a judge in a fair andthorough assessment of the evidence considered as a whole. [106] In this case, the good character of the accused that he raises and upon which he counts to contribute to raise a reasonable doubt,does not and will not in the present circumstances contribute to the debate. It will not contribute to raise a reasonable doubt evenconsidered in the context of the whole evidence. It does not mean that there are not cases where good character cannot make adifference.

This is not a case where the good reputation invoked is useful or relevant regarding the verdict to pronounce. [107] Very likely, because, the criminal allegations the accused is charged with, are of a nature not to have leaked through thecommunity as they are truly private to that family, to the relationship of the accused with each, it is truly likely that these criminal eventswere not in the public sphere and that they were kept rather secret. It is not that these events did not influence the course of therelationship of the father with his children.

And indeed, the accused himself appears to have developed difficult, estranged and uneasylinks to the victims, to his children notwithstanding his gross and indulgent impression that he was a good caring and loving father. [108] When the accused pleaded his good character and reputation and as he refers to his happy days in family or with his ladycompanion that became his wife that speaks to other layers of his memory or of the present where he feels good apparently.

So much hespoke of the importance of the image, of the appearance and of proving himself quite otherwise than others. [109] He has testified truly with lots of reluctance, self-indulgence, short memory as to what he did wrong. What he didn’t say isprecisely what his community is not aware of. It has not carved their opinion of him and it was likely to be unheard of before theseproceedings were initiated. [110] Good reputation in this case is a veil that covered his criminal wrongdoing.

When image and appearance that have and had theirgreat importance in the accused’s vision of life are soiled by the findings of the accused sexual and violent conduct on his own children,then that good character evidence and the self-esteem of the accused can only be hurt and reduced to that sad truth notwithstanding whatthe accused did good where ever he was.

COUNT 1: INDECENTLY ASSAULTING X WHEN HE WAS BETWEEN 7 YEARS OLD AND 13 YEARS OLD; COUNT 2:GROSS INDECENCY WITH X WHEN HE WAS BETWEEN 7 AND 13 YEARS OLD; COUNT 3 COMMITTING A SEXUALASSAULT ON X WHEN HE WAS BETWEEN 12 AND 14 YEARS OLD; COUNT 6 GROSS INDECENCY WITH Y WHEN HEWAS BETWEEN THE AGE OF 8 AND 13 YEARS OLD. [111] OFFENCES ON COMPLAINANT X –COUNTS OF INDECENTLY ASSAULTING A MALE PERSON, NAMELY X, OFGROSS INDECENCY WITH X AND COMMITTING A SEXUAL ASSAULT - The eldest son of the accused (

X) speaks to incidents

gradually evolving from wrestling, wrestling with their top removed, then undressed following in that the lead of their father. Sleepingnude was no issue. Playing games when nude was no problem. The mother was never there or certainly not present in the rooms wherethese criminal events took place. [112] The father was there with X, Y and B. Complainant is 10 years old when there was gross indecency and an indecent assault byhis father. It is in 1982-1983. The accused situates that incident as being in the [House A], the first house where they lived in Town A attheir return from Town B.

There is no doubt that all of the accused references to his sister can only be and are the ones to his sister B. [113] That incident is the sole that is reported by X as happening in Town A. What happened one day in that house followed previousnude gatherings elsewhere that are not to be assessed, neither qualified in this judgment. However there was a practise of nude gatheringsinitiated with the siblings by the accused. [114] The eldest testifies to what happened in Town A.

He described a gathering that he only understood to be deviant when he washimself the parent of a child. [115] This is how X describes the gathering. «We’re making a made a bed in the living room and we’re going to watch movies … we’reall going to sleep in the living room, so everybody is nude. At some point… there’s wrestling, tickling. And then … the way it waspresented or I remember the atmosphere that was being created, it was kind of like a biological lesson, like… you know showing us whata vagina is, showing us what a clitoris is.

And, you know a ten years old boy, you’re nude, you’re being touched, it feels good, you’reseeing how female body parts you get erect, that’s how it starts.» (transcript 2020.01.21 page 91) [116] So there is the touching by the father of the vulva of his sister being done like a biology lesson and then there is the touching of Xby the accused. «I’m erect. My penis is being held. It’s hard to describe it as a sexual thing now. […] But I’m erect. My penis is beingheld, it is hard… to describe it as a sexual thing now.

You know, and then clear liquid starts to come out and … then that’s when he’s…Well that’s pre-ejaculate. I didn’t have to be stimulated very…hard or aggressively to respond (page 92) I do remember being touched byhim. Again, it’s not like touching where he’s, you know, physically masturbating or something, but I’m erect. I’m already aroused. Itdoesn’t take much. But I remember him holding my penis. I remember holding his penis.

Again, like, it doesn’t take a masturbationmotion for me to respond.(transcript 2020.01.21,page 92) [117] «[…] But I’s like to point out that I was not the focus of that event, that incident, the real attention was on my sister. Y was on theother side of my sister and father […] I have my back to the television, my sister’s lying on her back with her legs toward me. My fatheris laying beside her with his arm over her facing her.(page 93)It was like […] when you’re a boy, you’re erect and you see somethingcoming out of your penis, you’re probably going to panic but this is presented as ‘’No, this is very normal.

It’s biological. This is calledpre-ejaculate. […] But he was presenting things like they were benign. Like, there is no big deal.» (transcript 2020.01.21,page 94) [118] «It’s hard for me to make any judgment… my appreciation for the sexuality of the moment. […] My perception at the time was ‘Iloved my father. I wanted his attention and that’s how we were getting his attention (page 95). X’s perception changed when he wastaking (his son) out of the bath and drying him off (page 96) Now his reaction is more instinctual.

There’s not a lot of reflection goingon… I just feel bad (page 96).Maybe being groomed as a ten (10) years old, there’s certain things you could get used to. But as a fatherwho loves his son dearly and would never hurt his son, I would never see myself in that situation with my son (transcript 2020.01.21,page 96). [119] That evidence speaks to the behavior of the accused in the presence of Y who was then 7 or 8 years old and of B a bit youngerthan Y. [120] Nudity was no problem for the father. It was no problem when they grew in their childhood as the eldest was becoming a pre-adolescent.

It was no problem when even away from Town A, they would end up engaging into nude wrestling with their father and forexample ticking and at most touching their bum. This is no behaviour that I qualify. And I am truly far away from saying it wascriminal. It simply was a way the accused had of passing good time with his children. But what happened in Town A went way furtherthan the generalities of their sharing times of nudity together. [121] The accused was nude. It didn’t strike the eldest until he had a child of his own when around his thirties.

But, the Town Awrestling was certainly perceived by the father as being a delicate matter in the absence of the mother. It was so as he would neverengage in it in the presence of the mother. But that criteria alone does at first sight speak to that environment where the father did likelymore and not for education purposes. The sexual context speaks against any such assumption. [122] But, the whole wrestling became eventually a problem. That was always practised in the absence of their mother. Thesegatherings ended as the eldest attended school outside Town A.

He would have witnessed nude wrestling when coming back home andwould not join as the father was so engaged (SO SAID Y). He had grown older and certainly did not accept doing so in the company ofhis father. He was in his thirties or close to it when he developed a parental awareness and even shied away when time came to bath hisgrowing son. He realized the difficulty of dealing with these questions. He came to understand what was morally or legally questionable.X did not feel good. It spoke to the nature and extent of his father’s misconduct. [123] But what is gross indecency?

The accused is charged with gross indecency and indecently assaulting X on counts 1 and 2 andalso Y on counts 5 and 6. [124] GROSS INDECENCY AND INDECENT ASSAULT - Gross indecency has been defined as a marked departure from thedecent conduct expected of the average Canadian in the circumstances that existed. (R v Sharpe, 2007 BCCA 191; R v St-Pierre (1974) (ON CA), 17 CCC (2d) 489 Ont C.

A) Appeal Court Judge Brooke in R v Quesnel and Quesnel (1979) (ON CA), 51 CCC (2d) 270 at page 280 spoke as follows adding to what had been said in Sharpe: What is needed is a fair objectivestandard in relation to which the conduct can be tested. It is not to be a subjective approach where the result would depend upon andvarying with the personal taste and predilections of the particular judge or juryman who happens to be trying the case. [125] Indecently assaulting contrary to

section 156 of the Criminal Code has been defined as an assault in circumstances of indecency or

as sometimes described, an assault with acts of indecency.

What acts are indecent and what circumstances will have that character arequestions of fact that will have to be decided in each case, but the determination of those questions will depend on an objective view ofthe facts and circumstances in relation to the actual assault, and not upon the mental state of the accused.[…] The only intent required forindecent assault is the general or basic intent to do the act which, in the circumstances in which it was done, in fact, constitutes anindecent assault.(R v Swietlinski, (SCC), [1980] 2 RCS 956) [126] The matter of gross indecency is a difficult one.

It is an objective one. It has to be assessed in the historical context of theinfraction. That society of the 80’s that was rather conservative is not truly less conservative with regards to the upbringing of children. Itis also a reality that the upbringing of children on sexuality may be diverse and also that nudity is lived in a different fashion in somefamilies. [127] The whole of the circumstances do demonstrate that the accused conduct went way further than lessons of anatomy and that thebehavior of the accused considered as a whole, crossed the border of gross indecency.

The accused allegations regarding his parentalrespect of his children’s privacy do not hold and are not believed.

Without any reliability his testimony when he says: I have alwaystreated my children as if their bodies belong to them, not just in the present, but in the future and that I wasn’t going to provide them amemory that they were going to think differently of where they had children of their own when they had different experiences outside mycare.[…] I was always very careful about what as a parent because as a child, I wasn’t treated with that kind of care and I know the kindof pain if brings.(transcript April 7, 2020, page 33) On that the accused is disbelieved.

He is a truly incoherent man as he knew thatmuch after a burdening childhood. [128] The allegations of X are detailed, circumstantiated, very carefully worded, without exaggeration and they undoubtedly reflectwhat happened... Being nude is not the offence, it is no more than a context.

So as he started saying in that catch 22 phrase, regarding thepossibility of him coming in a nude wrestling match, that he would branch off…He states that it’s not possible and he goes onspeaking… saying that because the wrestling matches that he was involved in would not…and once again, he knew he trapped himselfand he goes on with the fact that they would not…and this is so because he was, contrary to what he testified to, involved in wrestlingmatches of which he will never give any details, of which he will never give an account of.

But then there he goes saying that they didn’trequire, didn’t require what, nudity. Indeed they did not but it did happen and it is false that he did not accept nudity… On this one, hewill simply state that <,they wouldn’t accept nudity But he accepted nudity and indeed it may be that at some times, the growingchildren would not any more accept nudity, but when X was 10 or around 10, and B 8 or 9 and Y younger by two years, [129] The accused twists and manipulates and covers the reality.

He diverts the attention, he hijacks the attention, he invents his truth ormanipulates it and he is cornered with the total unlikelihood of his denials [130] All of the circumstances show the accused gross misconduct through the course of that sole event where X denounces his father.The whole of the events speak to his father involved in a clearly sexual event. The father is showing his two boys, X and Y, the vulva oftheir sister B. Even if she is not named, there is no doubt whatsoever that it is her. This is so very clearly timewise. He shows her vulvaand her clitoris as he is touching her with his hands.

Then the accused holds X’s penis and vice-versa in what apparently was conveyed asno more than a lesson of anatomy. [131] This was and is totally unjustifiable that in that very sexual context the accused invested the sexuality of the siblings then present.It was for the nude father an occasion a context that became sexual as he illegally touched the sibling’s genitals and was being touchedsexually touched by X. It does not stand that the touching either way on the part of the accused could have been unintentional andunwitting. The whole context became sexual.

That was one of the many events where the accused would gratify himself and would evenimpose his sexual drive to his children, nothing to do with any educational purpose. That was not an isolated event on the part of theaccused. It did happen also with Y quite in a same fashion of playing and touching as says Y. And it is sad that he dared invite himself inthe intimacy of his children then. [132] Doing that much in front of Y was also

an act of gross indecency. The eldest did not pay attention to what his father did on Y orhas no such souvenirs. [133] The gestures are straightforward gross indecent gestures invited or done in a context where the accused is a nude participant, erectand touching for sexual purposes, in a clear sexual context inviting the sexual touching, allowing the sexual touching on him and notdiscouraging it. There was nothing unwitting or unintentional. [134] That was evidence that leaves no doubt on the accused guilt on counts 1 and 2 against X and on count 6 regarding the grossindecency on Y.

Y who was younger did not have a memory of that incident. But that does not in any fashion question the truthfulness ofX’s account and the commission of the act of gross indecency by the accused with Y. On count 3, the accused will be acquitted.

COUNTS RELATED TO VICTIM Y COUNT 5: INDENCENTLY ASSAULTING Y WHEN HE WAS BETWEEN AGE 8 AND 9 YEARS OLD; COUNT 7: SEXUAL ASSAULT ON Y WHEN HE WAS BETWEEN THE AGE OF 9 AND 13 YEARS OLD; COUNT 8 TOUCHING FOR A SEXUAL PURPOSE A PART OF THE BODY OF Y BETWEEN THE AGE OF 13 YEARS AND 3MONTHS AND 14 YEARS MINUS A DAY; COUNT 9 TOUCHING FOR A SEXUAL PURPOSE A PART OF THE BODY OF Y WHEN IN A POSITION OF TRUST ORAUTHORITY OR WHEN Y WAS IN A RELATIONSHIP OF DEPENDENCY; COUNT 10 SEXUALLY ASSAULTING Y BETWEEN THE AGE OF 13 YEARS AND 3 MONTHS AND 15 YEARS OLD; [135] The victim Y testified in a credible, trustworthy, sensitive, emotional and strong fashion.

The accused is charged here with sexualoffences.

[ 136 ] SEXUAL TOUCHING THROUGHOUT -The victim Y speaks to several incidents of sexual touching. There was a lot of touching says Y. The accused made him touch his penis, do stuff like that

[…]