r v. D.B., 2016 QCCQ 13440

R. c. D.B. 2016 QCCQ 13440 JP 2213 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL N° : 500-01-105453-143 DATE: November 22, 2016 BEFORE THE HONOURABLE YVAN POULIN, J.C.Q. HER MAJESTY THE QUEEN Prosecutor v. D.B. Accused REASONS FOR JUDGMENT NOTE: Pursuant to s. 486.4 of the Criminal Code , it is ordered that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way. [ 1 ] The accused stands charged with counts of sexual contacts with his former stepdaughter, Mrs. X. At the time of the events, X was 14 years old.

She was living with the accused, her mother and her young stepbrother in an apartment situated in […]. X testified at trial that the accused had full sexual intercourse with her while her mother and stepbrother were asleep in the apartment on a specific night of January 2014. In his testimony, the accused categorically denied having any sexual contacts with X on the night in question. He claimed that he had fallen asleep on the couch and that nothing particular happened.

He further claimed that he was surprised and could not believe these allegations when he was made aware of them. [ 2 ] Since no expert or material evidence of any sexual intercourse has been filed, this case solely rests on the assessment of the credibility and reliability of the testimonies of both X and the accused. The Court must determine whether the prosecution has established beyond a reasonable doubt that the accused had sexual contacts with X on the night in question. [ 3 ] The defense pleads that the version of the accused should raise a reasonable doubt as to his guilt.

Given that X was inebriated on the night in question, it is submitted that the reliability of her recollection is diminished. It is also submitted that significant changes in her version of events should cast doubt as to what truly happened on the night in question. In sum, the defense submits that the version of X is not sufficiently reliable to criminally convict the accused beyond a reasonable doubt. [ 4 ] The Crown submits, on the other hand, that the version of the accused lacks credibility and reliability and must completely be set aside.

The Crown pleads that the version of the accused should not leave the Court with a reasonable doubt as to his guilt. The Crown argues that the evidence, considered as a whole, establishes beyond a reasonable doubt that the accused had sexual contacts with X on that night of January 2014 and that variations in her narrative along with her state of intoxication should not be sufficient to raise a reasonable doubt. [ 5 ] Given the nature of the allegations and defense, it is important to review the details of the evidence. THE CROWN'S CASE [ 6 ] At the time of the events, X had known the accused for many years.

He had been with her mother since she was a child and he was the father figure in the house. He was her stepbrother’s dad and her relation with him was pretty good. X’s relation with her mother, on the other hand, was difficult and troublesome. They were not really talking and the accused was basically acting as a buffer between the two of them. X trusted the accused. [ 7 ] In the hours prior to the alleged sexual contacts, X went to a school dance. It was a Friday night. The school was close to the

family’s apartment and she came back home just after 10 p.m. X says that the accused met her halfway and walked back home with her. He looked like he had been drinking. As soon as they got home, X went directly downstairs to her room to watch TV for approximately 30 minutes while the accused and her mom were in the kitchen having drinks. Her stepbrother was sleeping in his room. [ 8 ] X states that she decided at one point to come back upstairs and sat in the living room to watch TV. This is when the accused offered her a beer that she drank within a span of 15 to 20 minutes.

X says that although her mother was still in the kitchen, she did not know that the accused had given her a drink. When her mother went to bed, the accused joined her in the living room and went on the computer. Both X and the accused continued drinking beer while hanging out together. According to X, she drank a total of four beers and shared two more with the accused within a fairly short period of time. She was intoxicated to the point that she later felt sick from drinking. [ 9 ] X says that the accused joined her on the couch after turning off the computer. She says that the accused was also intoxicated.

While she was lying on one side of the couch, she put her legs on his lap as they watched TV. At one point, the accused started giving her a leg massage. He started with the shins and went up until he reached her vaginal area. He then massaged her vagina over her clothes for a few minutes. X says that he removed her shirt and that she gave him a blowjob. Feeling very confused, she picked up her shirt and went to her room downstairs. [ 10 ] According to X, the accused followed her to her room. Although she was confused, she says that they had full-unprotected sexual intercourse for some time.

She further says that he anally penetrated her and ejaculated in her anus. She immediately put back her clothes and went to the bathroom upstairs. When she came back to her room, she put her pajama and fell asleep. She thinks it was approximately 1 a.m. [ 11 ] The minute she woke up on the following morning, X thought she dreamt all this. She says that her head was aching and that she had bruises in her vaginal and anal area. She claims that she inquired about what happened the night before and says that the accused stated: “they went hard”. She asserts that she did not know how to react.

She kept this to herself and never showed the bruises to anyone. There is no expert or material evidence from which sexual intercourse could be inferred. [ 12 ] It is at school on the following Tuesday that she first gave details about the alleged incident to her friend Serena. On the next day, the school principal questioned X about the incident that had since come to the school’s attention. X first denied everything and claimed that Serena was lying. It is when the principal said that Serena could get into trouble for lying that X finally changed her mind and said that something happened.

The Youth Protection Services were called and met with X later that day in the school nurse’s office. They later brought her to the police station where she gave a video statement about the incident. It is on that day that H’s mother was informed about the situation. [ 13 ] When asked to explain why she waited half-a-week to unveil the incident, X mentions that she did not want to put the accused into trouble.

She says that she was worried about the fact that her mom would be alone and that her stepbrother would be raised without a father. [ 14 ] In her testimony at trial, X acknowledged that she withheld significant information about the incident throughout the different steps of the whole process.

For instance: ➢ She withheld the oral intercourse from the Youth Protection Services and the police; ➢ She held back the alcohol consumption from the Youth Protection Services and the police; and ➢ She withheld the anal intercourse from everyone until late in the process; [ 15 ] It was shown at trial that X provided additional details about the incident in a letter given to the Crown in April 2014. It was also shown that she gave further significant details about the incident in her testimony at the preliminary inquiry.

And that she provided further information about the accused in a second letter given to the prosecution less than three weeks prior to the trial. [ 16 ] While examined as to the reasons why she withheld so many important details, X explained that she was thinking about her stepbrother and that she did not want to make things worse for the accused.

She further said that she thought for a long time that she was personally responsible for the incident. [ 17 ] It must be mentioned that when X testified at the preliminary inquiry, she stated that she was wearing her pajama when the incident occurred on the couch in the living room. At trial, she mentioned that she was still wearing her jeans and shirt and that she put on her pajama only after the incident. It must also be noted that in her video statement, she said that the accused did not ejaculate.

At trial, she mentioned that he did so at the end of the anal intercourse. [ 18 ] In her testimony, X’s mother confirms the difficult relation she had with her daughter back then. She states that both the accused and herself were inebriated on the evening in question and that she went to bed early. She did not notice anything specific and was first informed of the situation by the Youth Protection Services on the following Wednesday. She then immediately asked the accused to leave the family home.

While looking back at that weekend, she found it strange that the accused kept blaming her for “ drinking all the beer ”. THE DEFENSE [ 19 ] The accused testified before the Court for his defense. He acknowledged that he was with X on the night in question but categorically denied any sexual misconduct. During the evening, the accused smoke one or two joints and had several beers with X’s mother. When he picked-up X at school after the dance, he was fairly intoxicated and was wobbly on his feet.

It is without the knowledge of H’s mom that he gave a few beers to X. [ 20 ] The accused confirms that when his wife went to bed, he sat at the computer while X was watching TV. He explains that the

bedroom where his wife was sleeping was just a few feet away from the living room. Moments later, the accused sat on the couch towatch a movie with X. The window and curtain were opened because he was smoking cigarettes. The accused confirms that X put herfeet on top of him but claims that he rapidly fell asleep on the couch, as he was seriously intoxicated. The last thing he remembers ismassaging X’s feet. [21] The accused claims that he woke up at 4 a.m. with a massive headache. He says that it was freezing cold in the house since thewindow and curtain were still opened.

He says that he even had to put the bathroom’s heater on to warm himself up, as he was reallycold. [22] On the next morning, the accused went to the pharmacy with his son and X to buy Pringles chips to help him with his hangover. The accused gives many details about what he did on the Saturday and Sunday that followed the alleged misconduct. The accusedmentions that X missed school on Monday with the consent of her mother. He further says that he had a conflict with X regarding herplans of the following Wednesday.

He was surprised and could not believe X’s allegations when he was made aware of them on thatsame Wednesday. [23] It was shown that several aspects of the version given by the accused at trial differ from what he said to the police upon hisarrest.

For instance: ➢ He said at trial that he did not play his game on the computer because it was too late while he had said to the police that it wasbecause he was too drunk; ➢ He said at trial that it was freezing cold when he woke up in the middle of the night but said in his police interview that he was“sweaty and hot” when he woke up; ➢ And he further said at trial that he went to the pharmacy at the request of his wife although he had said to the police that he decidedto go as he needed salt. [24] It must also be mentioned that the accused changed his version in regards to X’s alcohol consumption.

While he firmly denied,in his police interview, giving or sharing any beer with her, he acknowledged at trial that this was not true. Furthermore, it must be notedthat although the accused was firm, assertive and self-confident in examination-in-chief, his account of the events was significantlyundermined by the cross-examination. ISSUE [25] It is against this backdrop that the Court must determine whether the evidence shows beyond a reasonable doubt that theaccused had sexual contacts with his stepdaughter on the night in question.

ANALYSIS The presumption of innocence and issues of credibility [26] It is well established that every person charged with a criminal offence is presumed to be innocent until the Crown proves hisguilt beyond a reasonable doubt. The accused does not have to prove that he is innocent. The Court may only find an accused guilty if,after considering all the evidence, it is satisfied that the Crown has proven its case beyond a reasonable doubt.

If a reasonable doubt as tothe guilt of the accused arises from the evidence, the absence of evidence, the credibility or the reliability of witnesses, the Court mustfind the accused not guilty. [27] The test for assessing reasonable doubt when credibility is in issue was defined by the Supreme Court in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742. First, if the Court believes the evidence of the accused, it must find him not guilty. Second, ifthe Court does not believe the evidence of the accused, but is still left by this evidence with a reasonable doubt, it must find him notguilty.

And third, even if the Court is not left with a reasonable doubt by the evidence of the accused, it must still ask itself whether,after considering all the evidence, it is satisfied beyond a reasonable doubt that the accused is guilty. [28] It must be emphasized that possible or even probable guilt is not enough to convict an accused. The paramount question inany criminal case is whether the Court is left with a reasonable doubt about the guilt of the accused. If the Court is not sure that theaccused committed the offence, it has no other choice but to acquit him.

This is so even in cases where guilt is likely and probable. Application to the present case [29] In the present case, the Court is faced with entirely opposed accounts of what happened on the night in question. Since noexpert or material evidence of any sexual intercourse has been filed, the case rests on the assessment of these two different versions. [30] As previously stated, the version of the accused at trial differs in several ways with what he told the police after his arrest.

While some of the differences might concern peripheral details, it is obvious that his confident and firm demeanour in examination-in-chief was significantly undermined by the answers he gave in cross-examination. It is clear that he lied to the police concerning X’salcohol consumption. It is also obvious that his answers concerning how he was when he woke up in the middle of the night do not holdwater. In light of all the circumstances already mentioned, the Court concludes that the version of the accused lacks credibility andreliability.

In sum, the Court simply does not believe his blanket denial concerning the events. [31] That being said, the Court must still ask itself, after considering the evidence as a whole, including the frailties of X’stestimony, whether it is satisfied beyond a reasonable doubt that the accused is guilty. On this point, the record shows : ➢ That there are variations in X’s narrative;

➢ That several details about the circumstances of the alleged misconduct were withheld during the process; ➢ That significant details about the incident were added throughout the process; ➢ That X’s state of intoxication clearly affected her recollection of the events; and ➢ That absolutely no corroborative evidence is available. [ 32 ] Given all those circumstances, the Court cannot conclude that the heavy burden of proof that applies in criminal cases has been met. The Court wishes to add that this conclusion does not mean that the incident did not happen. It does not mean either that X is lying about it.

It only means that after considering all the evidence, including its inherent inconsistencies and frailties, the Crown has not proven guilt beyond a reasonable doubt. CONCLUSION For all those reasons, the accused is acquitted. __________________________________ YVAN POULIN, J.C.Q. Me Anne Gauvin For the prosecution Me Yves Gratton For the accused Date of hearing: October 8 th , 2016