2022 QCCQ 9680, 2022 QCCQ 9680

R. c. Martucci-Costa 2022 QCCQ 9680 COURT OF QUEBEC Criminal & Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL N° : 500-01-206200-203 DATE : December 15 th 2022 ______________________________________________________________________ BEFORE THE HONOURABLE DENNIS GALIATSATOS, J.C.Q. ______________________________________________________________________ HIS MAJESTY THE KING Prosecution v.

MICHAEL MARTUCCI-COSTA Accused ______________________________________________________________________ REASONS FOR JUDGMENT ______________________________________________________________________ OVERVIEW [ 1 ] The accused is charged with various crimes allegedly committed in a domestic violence setting. The first count alleges that he assaulted his then-girlfriend Emily Reda between December 1 st 2019 and June 14 th 2020 (s. 266(

b) C.C. ). He is also charged with forcible confinement on May 30 th 2020 (s. 279(2)(

b) C.C. ) and with criminal harassment on the night of June 13 th 2020 (s. 264(1) C.C. ). The Crown elected to proceed by

summary conviction. [ 2 ] The accused testified in his defence, denying the allegations of violence and contending instead that he was the victim of various assaults at the hands of his girlfriend, including one incident where she lunged at him with a knife. Despite the abuse he endured, he never reported the complainant to the police. He loved her. [ 3 ] Both the accused and the complainant describe the relationship as toxic. [ 4 ] As is often the case in such matters, the assessment of credibility takes centre stage.

The Court is confronted with conflicting evidence, with the complainant and the accused offering diametrically opposed versions regarding the general dynamics in their relationship. They also present starkly different accounts of the events of May 30 th and June 13 th 2020. As will be seen below, the Court’s task is far more demanding that simply choosing which version it prefers between the two. Instead, I must determine whether the Crown has proven each count beyond a reasonable doubt.

A PRELIMINARY NOTE REGARDING THE COURT’S JURISDICTION [ 5 ] The period covered by the assault count is wide and the complaint referred to various events in her testimony.

Since particulars were never requested, [1] it is understood that the Crown may establish guilt by proving beyond a reasonable doubt that any one of those assaults took place. [ 6 ] In particular, much emphasis was placed on an event that allegedly occurred in December of 2019. [ 7 ] Alas, while the matter was under advisement, by referring to the accused’s birthdate, [2] the Court noticed that Martucci-Costa only turned 18 years old in January of 2020. [ 8 ] This implies that he was a minor at the time of the alleged December assault. It is unfortunate that neither of the parties noticed this during the trial.

In fact, we can assume that the Crown did not notice it in the pre-charge screening process either. This oversight was likely due to the fact that the accused was an adult when he was charged in June of 2020. [3] [ 9 ] On November 23 rd 2022, I wrote to both parties seeking their input on the apparent jurisdictional issue. On December 1 st 2022,

with her usual professionalism, Crown counsel conceded that the issue was problematic and that a youth court had exclusive jurisdiction. Defence counsel similarly responded that in his view, the Court did not have jurisdiction over the period during which the accused was a minor. [ 10 ] At section 2(1), the Youth Criminal Justice Act [4] defines “young person” as someone who was less than 18 years old when charged under the Act with having committed an offence while he was a young person.

However, for greater clarity, s. 14(5) Y.C.J.A. adds that it also applies to persons aged 18 or older at the time of the charge, but who are alleged to have committed the offence while still a young person. [5] That is the case of Martucci-Costa as it relates to the December 2019 incident. [ 11 ] Can I therefore consider the December 2019 events? Must I rule on them?

To be clear, the question is not whether the accused should be tried, but rather which court should assume jurisdiction. [ 12 ] In plain terms at s. 14(1) Y.C.J.A. , Parliament conferred exclusive jurisdiction in respect of offences committed by young persons to a “youth justice court”. Technically speaking, as a judge of the Court of Quebec, I am a “youth justice court” as defined at s. 13(1) of the Act that could, in principle, exercise those functions.

In some situations, the law may allow a simultaneous exercise of more than one jurisdiction. [6] However, beyond the designation of a specific judge or which hat he wears during the proceedings, s. 14(1) also requires that the young person be “dealt with as provided in the Act ”. [ 13 ] That is where the situation becomes problematic here.

On several occasions, the Supreme Court of Canada has gone to great lengths to underscore that the creation of the youth justice system was based on a recognition of the presumption of diminished moral blameworthiness of young persons and on their heightened vulnerability in dealing with the justice system. They need enhanced procedural protection, rooted in an underlying rationale that accounts for their intellectual, social and psychological immaturity. Those additional protections are not gratuitous benefits.

Instead, they are directly responsive to the vulnerability and concomitant disadvantage that inheres in young people because of their age. [ 14 ] The governing principle of the Y.C.J.A. is to maintain a separate justice system for youths from that for adults. [7] As I understand the Supreme Court jurisprudence, the Act creates a complete code for the prosecution of young persons. Even though criminal prosecutions of minors and adults are similar in many respects, there are many requirements of a substantive, jurisdictional and procedural nature which differentiate the two kinds of proceedings.

Said differences are not benign and they should not be trivialized for the sake of administrative efficacy. [ 15 ] In fact, in R. v. S.J.L. , the Supreme Court held that despite the judge’s “many hats” and the statutory ability to exercise multiple jurisdictions simultaneously, it would be improper to try adults and young persons in a joint trial as co-accused. [ 16 ] What about hearing a joint trial for the same accused, covering some counts as a youth and some counts as an adult? [ 17 ] First, in the case at bar, it appears too late to contemplate that possibility. The trial is over.

It proceeded entirely pursuant to “ordinary” adult criminal procedure since no one had noticed the age issue. [ 18 ] Second and more fundamentally, even if the matter had been noticed at the outset of the hearing, I would not have been inclined to proceed to a joint trial. On this issue, I am in substantial agreement with the Ontario Court of Appeal’s decision in R. v. P.M.C . In that case, over the accused’s objections, the trial judge agreed to conduct a joint trial on two adult and young offender indictments simultaneously, since the alleged offences involved the same complainant and the same evidence.

The Court of Appeal intervened, holding that the underlying principles in S.J.L. also precluded the joint trial of a young offender indictment and an adult indictment involving the same accused. The Court explained: …[the principles from R. v. S.J.L. ] apply with equal force to a joint trial of one individual on adult and young offender indictments.

Indeed, it seems to us that it would be even more difficult for a trial judge to maintain a favourable approach and presumption of diminished moral blameworthiness towards an accused as mandated by the Y.C.J.A. if the accused were being simultaneously tried for adult offences. Although the appellant was an adult when the young offender charges were tried, he was entitled to be tried and judged on the legal standard that applied to him at the time he was alleged to have committed these offences.

S.J.L. establishes that the maintenance of the Y.C.J.A. standards requires separate and discrete consideration, hermetically isolated from the legal standards that apply to adults. [8] [ 19 ] There are some documented exceptions to the rule in the caselaw. For instance, in R. c. X , the accused was charged with various sexual offences committed over a 5-year period while he was a youth. He was also charged – as an adult – with one more count of sexual assault on the same victim, for an offence that occurred after his 18 th birthday.

In those circumstances, in order to avoid duplicating redundant proceedings, the parties agreed to proceed “jointly”. However, the method employed was the following: • The trial proper proceeded in the Y.C.J.A. file before a youth court, which was described as the “main” file. • On consent, the evidence and arguments would be applied (“ versé ”) to the parallel adult file. [9] [ 20 ] Evidently, this procedural shortcut preserved the special protections enshrined in the Y.C.J.A. Essentially, a youth trial took place, which is the opposite of the situation at bar.

The term “joint trial” was therefore more an approximation than an accurate depiction of what occurred in R. v. X . [ 21 ] In light of the foregoing, I conclude that for the December events, Martucci-Costa must be exclusively tried in a Youth Court provided for in the Y.C.J.A. , as opposed to an ordinary court of criminal jurisdiction. There are no grounds to override the principle that a young person is to be tried in accordance with his status at the time of the commission of the offence.

To proceed jointly would be inconsistent with the spirit and the objectives of the Act . [ 22 ] That being said, rather than annul the first count in its entirety, the Court will read it down in order to preserve its jurisdictional validity. I will therefore only consider the events having taken place between January 27 th 2020 and June 14 th 2020. [10] Practically

speaking, this removes the alleged December 2019 assault from my consideration. I have no jurisdiction over it. Both the complainant’s and the accused’s accounts may still be relevant to assessing their overall credibility and reliability, but the Court’s analysis will not yield a verdict as it relates to that particular event. [ 23 ] Nevertheless, given the wide period covered by the count, as drafted, the Crown may still prove that some other assault was committed beyond a reasonable doubt. FACTUAL OVERVIEW 1- The evidence of the prosecution

a) The testimony of the complainant Emily Reda [ 24 ] Ms. Reda met the accused at school when they were both in grade 10. They started out as friends. The following year, they spoke more often and the accused often attended house parties thrown by the complainant. Within a few months, they began officially dating in March of 2019. The relationship would last just over one year. [ 25 ] In May of 2020, they moved in together, but the cohabitation was short-lived. One month later, the relationship ended and the current charges were filed. [ 26 ] Reda describes the relationship as unhealthy from the very beginning.

The accused was very insecure and he constantly accused her of cheating on him. In her view, this was the source of most of their problems. The accused began requiring that she account for her whereabouts, even for something as mundane as going to work or going to the pharmacy to run errands. The accused demanded that she send him text messages or even take Facetime calls in order to verify that she was not with another man. The accused “verbally abused” her, calling her a whore and a slut, telling her she was useless. She repeatedly denied being unfaithful, but to no avail.

As a general statement, the complainant mentions that the accused was often physically aggressive, even violent. There were many incidents where Martucci-Costa pushed her or punched things in a fit of anger. [ 27 ] Regarding the charges, she first recounts an incident that took place at an unspecified date in December of 2019 at the accused’s mother’s house. They were arguing, each yelling back and forth, though the complainant cannot recall what the argument was about. The accused urged her to stop yelling since the commotion was disturbing the neighbours.

Reda acknowledges that she was angry and that she kept screaming despite the accused’s pleas. She also recognizes that she was the first of the two to stand up. In order to get her to stop, Martucci-Costa took her face, pushed it to the ground and rubbed it on the carpet, causing the complainant to have a significant rug burn which left a large scab in the following days. The pain on her cheek lasted over one week. [ 28 ] The complainant does not remember anything else about that day.

In fact, she cannot recall how the altercation ended, where the parties went afterwards or where she slept that evening. [ 29 ] The complainant then describes an incident from May of 2020. By then, she and the accused were living together in their own apartment. Both names were on the lease. [ 30 ] Reda was trying to leave the apartment, but the accused prevented her from doing so. The complainant had plans to go out with her friend but the accused forbade it. He even took her car keys and physically held her, wrapping his arms around her stomach from behind and pulling her back.

In order to avoid a “big violent fight”, the complainant simply yielded and decided to stay home. [ 31 ] The final incident was on June 13 th 2020. Reda went to her friend Jade’s house, which was a short distance from their apartment. She stayed there past midnight. At 12:30 am, the accused texted her: “come home now or there’ll be a problem”. Reda adds that the accused called her multiple times, though she cannot give a specific number. [ 32 ] To avoid an argument, the complainant decided to return home, contrary to her friend’s advice.

The walk took five minutes. [ 33 ] However, when she arrived home, the accused refused to open the door. For 20 minutes, the complainant knocked, she rang the doorbell and she called and texted the accused, but she received no answer. She therefore decided to return to Jade’s house where she would sleep for the night. At approximately 3:00 am, the accused started calling Reda’s phone. Given what had transpired, the complainant chose not to answer. At that point, the accused began calling Jade directly. [ 34 ] At first, Jade told the accused that she did not know where the complainant was.

After multiple calls, she finally relented and revealed Reda was with her, safe and sound. By then, the complainant refused to return home. Thus, at 3:30 am, uninvited, Martucci- Costa appeared at Jade’s house in hysterics. Since she lived with her mother and younger sister, Jade went outside, hoping to calm the accused. [ 35 ] Moments later, the complainant also went outside, where the accused was refusing to leave without her. She made it clear that she did not want to leave, but Martucci-Costa would not take “no” for an answer. He displayed a very confrontational attitude.

At one point, the accused approached the women, first walking but eventually running after them. Jade called the police as they fled. [ 36 ] The complainant was afraid during this exchange. Due to the accused’s increasing aggressiveness, she feared for her safety as well as her friend’s. [ 37 ] When the officers arrived on the scene, the accused threw a knife on a nearby lawn, anticipating that he would be arrested. Reda was not surprised to see the knife. She knew that her boyfriend always carried it on his person due to his fear of being robbed since he

was a drug dealer. [ 38 ] The police had to force the accused to leave the premises. [ 39 ] The next morning, Reda returned to the apartment where she and the accused discussed the prior night’s events. Although there was some tension in the air, they did not argue. [ 40 ] A few days later, between June 14 th and 16 th 2020, an argument arose because the accused had cut his hair in the bathroom and left a mess behind. Both parties yelled back and forth. Martucci-Costa was sitting in his bed while the complainant was standing nearby.

During the “fight” (as described by Reda), from his seated position, the accused pushed her and kicked her in the face, causing her to fall on a chair and then to the floor. After she got up, she threw her shoe at him and ran out of the apartment. She then drove to Jade’s house and both women went to the police station to report the situation. [ 41 ] During her testimony, the Crown filed various photos of injuries and bruises.

Some of them show bruises on her upper thigh and forearm sustained during that last altercation. [11] Other photos show scratches and bruises, but the complainant cannot specifically recall how or when they were caused, although she maintains they were all caused by the accused during their altercations, many of them in May of 2020. [12] She mentions that the events were so frequent that they’re “all a blur” to her. [ 42 ] In cross-examination, the complainant acknowledges that at the relevant time, her apartment was near Lapierre Street in Montreal-North, which was a notoriously high-crime area.

b) The testimony of Jade Desloges-Carrier [ 43 ] Ms. Desloges-Carrier is the complainant’s childhood friend. She only met the accused on five occasions in 2020. [ 44 ] On June 13 th 2020, Reda was at her house all night. Past midnight, Desloges-Carrier received a call or a text from the accused asking where the complainant was and noting that she had to be home before 1:00 am. [ 45 ] Against her advice, Reda left at 12:55 am. She lived two minutes away. However, after waiting outside of her home for 20 minutes, Reda returned to Desloges-Carrier’s house, where they agreed she would spend the night.

Both women fell asleep. [ 46 ] A few hours later, at 3:47 am, Desloges-Carrier received a call from the accused. He attempted a video-chat, but Desloges Carrier declined it, as she did not want to see his face. Thereafter, the accused made many calls, eventually warning that he would come over. [ 47 ] At first, Desloges-Carrier told him that Reda was not there. She let that linger for almost 30 minutes. However, seeing that the accused was in a worried panic, she felt bad for him.

She ultimately called him back and revealed that the complainant was with her. [ 48 ] Sure enough, the accused soon appeared outside her home, insisting that Reda return with him. The witness went outside to calm him down and to reassure him that the complainant was fine. Dissatisfied, the accused threatened that if she did not come outside, he would ring the doorbell until he woke everyone up. [ 49 ] The accused looked nervous and annoyed. Eventually, Reda came outside. After first expressing that she wanted to stay, she later accepted to leave with the accused.

At that moment, Martucci-Costa started to grab Reda. Desloges-Carrier refused to let her friend go. Next, the witness recounts that both women “started walking around, trying to lose him”, but he started running after them. As they ran away, they called the police. Both women were terrified. [ 50 ] When the police arrived, the accused threw a knife on a neighbour’s front lawn. He asked the women with incredulity: “you called the police?

Are you serious?”. [ 51 ] Even after the police told him to leave, the accused remained on the scene, first hiding behind a tree and then lying down on the street between two parked cars. Ultimately, the police escorted him all the way to his house. 2- The evidence of the defence [ 52 ] The accused testified. [ 53 ] In his testimony, he explains that he met the complainant while attending house parties at her place. They started talking and they undertook a purely sexual relationship. Eventually, Reda insisted that they actually become a couple.

Although the accused hesitated at first, he finally acquiesced. [ 54 ] By the time the litigious events took place, the accused was very much in love with her. [ 55 ] It was the accused who proposed that they find their own apartment after the complainant got kicked out of her mother’s home. Given their age and financial situation, they sought to find the cheapest possible option. They ended up renting an affordable apartment in a very dangerous area of Montreal-North.

They moved in barely one month before the accused’s subsequent arrest. [ 56 ] Martucci-Costa describes the relationship as “very toxic” from the start. They often argued about little things, but he chose to

remain with the complainant. In his view, she was always the one who started the problems, but she was quick to apologize the following day, so the accused tolerated it. In part because the complainant suffered from a borderline personality disorder, the accused kept forgiving her and tried to make it work. Every time he contemplated breaking up with her, she threatened that she would kill herself. She made such threats 5 times during their relationship. He remained with her, hoping that things would improve. In his view, he never started any of the arguments.

In fact, he boasts that in his previous relationship (which lasted 3 years), he had never had a single argument. [ 57 ] The accused categorically denies ever having been violent towards the complainant. Although he would often talk back to her, he never formed a fist, he never hit her and he never tried to physically control her. He insists that he would never try to hurt her. In their 100 fights, he was never even verbally aggressive. That being said, they did insult each other during their arguments.

She would insult his manhood and he would often respond by calling her a slut. [ 58 ] The accused adds that he has no ill feelings towards Desloges-Carrier, whom he barely knew. He did not attempt to control who his girlfriend socialized with. He trusted her judgment. Although he did often ask the complainant who she was with, he contends that this was a perfectly normal thing to do in a relationship. The question was benign.

It was not done in a supervisory capacity or with any hint of control or distrust. [ 59 ] When asked about the allegations regarding the December 2019 incident, the accused does not recall anything in particular. In fact, pressing himself to remember, he states that the only argument that took place during that period was at the complainant’s father’s house, not at the accused’s mother’s house (as contended by Reda). [ 60 ] When asked if any altercation took place at his mother’s house, the accused mentions one argument, but he cannot situate it in time.

On the day in question, he announced to the complainant that he wanted to break up with her. Reda reacted very emotionally, screaming and threatening to kill herself by jumping in front of a moving subway train. Since she had made similar threats in the past, the accused took them seriously; he did not perceive it as a bluff. Fearing that she would actually hurt herself, he took her car keys and attempted to hold her back until she calmed down. [ 61 ] During the argument, Reda kept screaming “let me leave, let me leave”, which caused the neighbours to ring on the doorbell and ensure that everything was fine.

The complainant quickly calmed down thereafter. In fact, the couple went to dinner together right after the argument. [ 62 ] Regarding the alleged confinement on May 30 th 2020, the accused denies it ever happened. He contends that the complainant invented that allegation altogether. [ 63 ] As for the events of June 13 th 2020, the accused explains that he wanted to go to bed, as he was working at 6:00 am the next day. He simply asked Reda – without demanding anything – if she was coming home. In fact, the complainant confirmed that she would. Unfortunately, Martucci-Costa soon fell asleep.

For that portion of the night, the accused denies that he was insistent in any way. Quite the contrary, he simply fell asleep. [ 64 ] He woke up hours later at around 3:00 am. Only then did he see multiple text messages from the complainant indicating that she had been outside and that she could not get in because the door was locked. [ 65 ] The accused called her phone but there was no answer; it went straight to voicemail. He then texted Desloges-Carrier to see if the complainant was with her. Desloges-Carrier answered in the negative. This prompted the accused to worry about Reda’s wellbeing.

He then looked outside and noticed that the complainant’s car was still parked in front of their home. [ 66 ] Given (1) her unexplained absence, (2) the unanswered calls, (3) the older messages saying that she had unable to enter their apartment, (4) the presence of her car outside, (5) the high-crime neighbourhood and

(6) Desloges-Carrier’s claim that the complainant was not at her house, a sense of panic set it. [ 67 ] The accused set out to find his girlfriend. He armed himself with a small pocket knife (that the complainant’s father had given him) for his protection and started walking around the neighbourhood in the middle of the night. [ 68 ] At some point, Desloges-Carrier wrote back to him and she revealed that Reda was in fact with her. Given the conflicting messages, Martucci-Costa did not believe her at first. Even after receiving a photo of both women, the accused still felt confused.

He wanted to go see her directly and ensure that she was alright. [ 69 ] In his testimony, the accused acknowledges that he wanted the complainant to return home with him. However, he denies screaming once he arrived at Desloges-Carrier’s house. Knowing that she had a sister and mother inside, he had no reason to disrespect those people who had done nothing wrong to him. [ 70 ] Eventually, Reda and Desloges-Carrier exited the house and warned the accused that they would call the police. He answered that he simply wanted the complainant to go home with him. He denies becoming angry.

At most, he did not understand what was happening, particularly since the earlier text messages had shown that Reda had tried – unsuccessfully – to return home. They had just moved in together and he felt like the relationship was falling apart. He wanted to see if she still cared about him. He still loved her and he wanted to know if she still loved him. [ 71 ] He describes the conversation as a normal one. [ 72 ] Knowing that the police had been called, he decided to remain on the scene since he had done nothing wrong. When he saw the officers approaching, he threw his knife on a nearby lawn.

He insists that he never used it or even took it out. However, he feared that if the police saw it, they would assume he had done something wrong. [ 73 ] He denies having “given attitude” to the police, although he admits that he first protested and wanted to remain on the scene. It

was important for him to give the officers his version of the events. Eventually, after the officers insisted, he left. However, still confused as to what had transpired, he decided to sit on a nearby sidewalk and smoke a cigarette before returning home. [ 74 ] Given the late sleepless night, he did not go to work the following morning. He stayed home instead. During the day, he gave himself a haircut in the bathroom, leaving his hair in and around the sink. [ 75 ] At some point, he made himself a bowl of pasta and he sat on the bed eating it and watching TV.

He intended to clean the bathroom later, after having his meal. In the meantime, the complainant returned home and saw the messy bathroom. [ 76 ] She immediately ordered the accused to clean up his mess. The accused accepted to do so, but only after finishing his food. The complainant reacted violently, entering the bedroom yelling and repeatedly hitting him. Still seated on the bed, the accused took his phone out to record the complainant’s behaviour. Namely, due to the police presence the night before, he feared that no one would believe him.

He therefore attempted to film her while she assaulted him. [ 77 ] Alas, the complainant smacked the phone out of his hands and she tried to attack him on the bed. As she tried to climb on the high bed, Reda somehow fell to the ground, perhaps by slipping. Hoping to distance himself from the situation, the accused left the bedroom and went to the living room where he laid down on a sofa-bed. Suddenly, the complainant came towards him with a kitchen knife, waving it near his face. Martucci-Costa managed to disarm her and return the knife to the kitchen.

As he did this, the complainant threw her shoe at him and threatened that she would have him evicted. Once again, the accused took his phone out and started filming her. [ 78 ] At no point did he hit the complainant. [ 79 ] When asked why he did not report to the police that she had attacked him with a knife, the accused laughs off the question, indicating that he would never want to do that to her. Then again, seeing his current predicament, he reluctantly acknowledges that “it turns out I should have”. THE LAW [ 80 ] It is trite law that Mr.

Martucci-Costa, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. The Crown bears the burden of proof throughout the entire trial, from beginning to end. The accused does not have to present evidence or prove anything. Moreover, it is not enough for the Court to believe that he is probably or likely guilty. Conversely, proof establishing absolute certainty is not required of the Crown, nor may the doubt be imaginary, frivolous or irrational. [13] Such a burden would be nearly impossible to meet.

Nevertheless, the reasonable doubt standard falls much closer to absolute certainty than to proof on a balance of probabilities. [14] [ 81 ] Reasonable doubt must stem from reason and common sense and is logically connected to the evidence or lack thereof. It cannot be based upon sympathy, pity or prejudice. [15] Finally, it cannot be grounded in hypotheticals, speculation or fanciful conjecture. [16] [ 82 ] As mentioned above, credibility is a live issue in this case.

The Court is confronted with conflicting evidence, with the main parties offering diametrically opposed versions regarding the nature of their relationship and the events referred to in the information. [ 83 ] Although credibility and reliability are often intertwined to a certain extent, they do remain fundamentally different.

Credibility relates to the witness himself and to his truthfulness, veracity and integrity, while reliability relates to the accuracy and quality of his account. [17] [ 84 ] In its assessment, the Court may accept all, part or none of a witness’s testimony. [18] Similarly, guilt may be established beyond a reasonable doubt even if the complainant’s account is imperfect, including contradictions or other frailties.

It is for the Court to assess the impact – if any – of the contradictions and weaknesses, in the circumstances of each case. [19] [ 85 ] The Court must carefully avoid engaging in a “credibility contest”. In other words, a criminal allegation cannot be resolved by simply choosing between conflicting accounts. [20] Doing so would shift the burden of proof to the accused or lower the standard of proof resting with the Crown, both of which are scrupulously prohibited. [21] Similarly, as reiterated by the Quebec Court of Appeal in R. c.

Fournier , a Court cannot dismiss the credibility of an accused on the basis that it finds the complainant credible. [22] [ 86 ] Finally, even where the Court flatly rejects the accused’s evidence as being untruthful, that, in and of itself, does not establish guilt. [23] Mere disbelief of the accused does not equate to guilt. At most, it simply implies that the defence is completely rejected – a situation akin to cases where no exculpatory evidence had ever been adduced.

The Court’s analysis must then continue by assessing whether, on the evidence that it accepts, the Crown has proven guilt beyond a reasonable doubt. [24] After all, a reasonable doubt may arise independently from the Crown’s evidence. [25] [ 87 ] These basic rules all flow from the elementary principle of the presumption of innocence in criminal matters. [ 88 ] Of course, where credibility is a live issue, the accused’s testimony must be examined in light of the evidence as a whole. As the Supreme Court of Canada expressed in R. v.

MacKenzie , "an accused's version of events is entitled to the benefit of the doubt as against a competing version, providing the comparison is made having due regard to all the evidence". [26] The evidence heard at a trial is not to be compartmentalized in watertight partitions, to be assessed in a piecemeal fashion. [ 89 ] Thus, the accused is not entitled to having his version analyzed in isolation first, [27] with the rest of the evidence being relegated to the subsequent steps of the assessment. Rather, the Court must consider all the evidence at each step, even in he-said-she- said cases. [28]

[ 90 ] Ultimately, I have instructed myself to apply the law with respect to credibility as inspired by the framework proposed by Cory J. in R. v. W.(D.) . [29] However, in addition to the traditional tripartite incarnation of the test, I rely heavily on a slightly more detailed set of propositions, as listed by Paciocco J.A. in his

article Doubt about Doubt: Coping with R. v. W.(D.) and Credibility Assessment . [30] These propositions not only respect the spirit and underlying purpose of W.(D.) , but they update the 3-step methodology following developments in the appellate caselaw, all of which are beneficial to the accused: (

i) The criminal trial cannot properly be resolved by deciding which conflicting version of events is preferred; (ii) A Court that believes evidence that is inconsistent with the guilt of the accused must acquit; (iii) Even if the Court does not entirely believe evidence inconsistent with guilt, if the Court is left unsure whether that evidence is true, there is a reasonable doubt and an acquittal must follow; (iv) Even where the Court entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; (

v) Even where the Court entirely disbelieves the evidence inconsistent with guilt, the accused should not be convicted unless the evidence that is given credit proves the accused’s guilt beyond a reasonable doubt. ANALYSIS 1- The essential elements of the offences charged [ 91 ] The offence of common assault is straightforward. [ 92 ] In a series of recent decisions, [31] the Quebec Court of Appeal reviewed the essential elements of the offence of criminal harassment. [ 93 ] The term “harass” denotes conduct that is more than just disturbing or unsettling.

The provision requires that the complainant be “tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered”. [32] These concepts go beyond feeling “vexed, disquieted or annoyed”. [33] [ 94 ] That being said, the words “tormented, troubled, worried continually or chronically, plagued, bedeviled and badgered” are not cumulative and are individually synonymous with the word “harassed”.

Accordingly, establishing any of these states can constitute harassment. [34] [ 95 ] Moreover, it is not necessary for victims of harassment to suffer ill health or major disruption in their lives before obtaining the protection of s. 264. [35] [ 96 ] The essential elements of the offence are as follows:

(1) It must be established that the accused has engaged in the conduct set out in s. 264(2) (a), (b), (

c) or (

d) of the Criminal Code ;

(2) It must be established that the complainant was harassed as a result of the accused’s behaviour;

(3) It must be established that the accused who engaged in such conduct knew that the complainant was harassed or was reckless or willfully blind as to whether the complainant was harassed;

(4) It must be established that the conduct caused the complainant to fear for her safety or the safety of anyone known to her. This includes fear for her physical or psychological safety; [36] and

(5) It must be established that the complainant’s fear was, in all the circumstances, reasonable. [37] [ 97 ] Finally, the appellate caselaw has long held that as a matter of law, the offence of criminal harassment may be committed in one single incident. Repetitive or continuing behaviour is not required to establish “threatening conduct” under s. 264(2)(

d) C.C. [38] [ 98 ] As for the offence of forcible confinement, it is a full mens rea offence. The Crown must prove beyond a reasonable doubt that the accused willingly confined or imprisoned the complainant against her will. More specifically, he must have coercively restrained or directed her contrary to her wishes, so that she could not move about according to her own inclination and desire. Such coercion may be effected by physical restraint, fear, intimidation or other psychological means. Actual restraints, ropes or shackles are obviously not required.

Moreover, the restraint in movement need not be absolute. Any impediment to free movement, even minimal, may constitute confinement. [39] The offence is not limited to the stereotypical scenario of a victim bound and gagged in a dark basement. [ 99 ] Although the restriction in movement must be for a “significant period of time”, [40] this concept does not impose a minimum temporal requirement per se . [41] The analysis must be contextual.

Forcible confinement may be brief, but it cannot be insignificant or fleeting. [42] For instance, some sudden and momentary grabbing will not suffice. [43] 2- The careful avoidance of myths and stereotypes in domestic violence matters

[ 100 ] It is settled law that no two victims of violence, particularly domestic abuse, are the same. For that reason, generalizations regarding victim behaviour post-offence are rarely helpful. As the Supreme Court of Canada has recognized, there is no inviolable rule on how people who are the victims of assault will behave.

As such, great care must be taken to avoid judging the credibility of a complainant based on myths and stereotypes about how normal victims react (or should react). [ 101 ] Indeed, in the spousal abuse context, many factors may explain why the complainant might still love the accused, or why she might be quick to forgive him. These can include fear, confusion, dependency, vulnerability, shame or embarrassment, feelings of guilt, love, fear of reprisals or the relationship of trust, to name a few. [ 102 ] These principles are engaged here and the Crown explicitly raised the rule in its closing arguments.

Insofar as the defence argued that Ms. Reda’s decision to remain with the accused for many months is indicative of a lack of abuse, the Court firmly rejects the argument. The defence also reasoned: if the relationship was so abusive, why did the complainant agree to move in with the accused in May? This argument is also dismissed as anachronistic. [ 103 ] The mere fact that she remained in the relationship for a prolonged period does not, in and of itself, suggest that her allegations are false.

Nor may I draw any adverse inference from the delay in her disclosure of the alleged assaults or her failure to seek help from the police earlier. [ 104 ] That being said, the rule applies in another way in the case at bar. Defence counsel also cautions me against engaging in stereotype-reasoning in my assessment of the accused’s testimony. This is a reference to the lines of questioning in the accused’s cross- examination asking him: If she threatened you with a knife, why not report her to the police?

If she was that aggressive and confrontational towards you, why did you not leave the relationship? [ 105 ] Defence counsel is correct. [ 106 ] As seen above, the prohibition against myths and stereotypes obviously applies to the assessment of a complainant’s testimony. That is now trite law. However, it is important not to lose sight of the fact that stereotype-reasoning is just as improper when assessing the testimony of the accused, [44] as recently highlighted by Kalmakoff J.A. in R. v.

Adebogun . [45] [ 107 ] In other words, young men deserve the same protection against prohibited reasoning as would young female complainants [46] . Both are entitled to have their account scrutinized pursuant to sound analysis, devoid of preconceived notions or prejudicial assumptions about “male aggression”, male behaviour or male attitudes. In particular, a criminal court must never operate on the baseline presumption that men are the aggressors in intimate relationships.

Adopting such myths and stereotypes would erode the presumption of innocence. [ 108 ] In its submissions, the Crown argued that it was unrealistic and incredible for the accused to suggest that he was always calm and collected in the relationship. Equally incredible were his claims that he was never the aggressor and that he always forgave the complainant for her violent outbursts. Yet, there is nothing inherently illogical or unrealistic about such assertions. It is entirely possible that the complainant was always the aggressor or the instigator. That is not to say that the Court believes the accused.

However, any assessment of his credibility must find footing in the evidence. It cannot be assumed that his version was untruthful. 3- Assessment of the evidence as a whole [ 109 ] Does the Court believe the accused’s testimony? Does it believe any evidence or portion thereof that is inconsistent with guilt? [ 110 ] The question is a difficult one in the case at bar. [ 111 ] There was a perceptible immaturity in the accused’s demeanour while testifying. That is to be expected: he is 20 years old. Despite his tone and relative lack of sophistication, his answers were all very spontaneous.

While this does not always serve as a marker of truth, the Court nevertheless considers that at no point did he hesitate or attempt to evade any questions in cross-examination. [ 112 ] There are certain portions of his testimony that were patently unbelievable. [ 113 ] For instance, he contends that after being warned by the police to leave the premises on June 13 th 2020, he simply loitered nearby and decided to sit on a sidewalk and have a cigarette before returning home. He insists that this was neither

an act of defiance nor a refusal to leave the complainant alone. [ 114 ] The Court does not believe that claim for a hot second. In his testimony, he mentions that he had to wake up at 5:00 am the next morning to be at work at 6:00 am. Considering the difficult and emotional events of the evening, the Court does not believe that he would choose that moment to sit down and ponder the events while smoking a cigarette on the sidewalk. Had he really wanted to return home, he would have done so directly and promptly. Smoking and walking simultaneously are not difficult tasks.

Furthermore, uniformed police officers had ordered him to leave the area even after he tried to protest their presence and explain his intentions. As such, he understood the seriousness of the situation and his duty to leave. Equally incredible is the claim that he would choose to sit on the curb between two parked cars to have his cigarette… of all places. [ 115 ] If he chose that spot, it is because he was attempting to hide from the police and from the complainant.

This portion of his testimony was dishonest and crafted in a manner to minimize his stubbornness on the night of the events. [ 116 ] Another portion of his testimony is problematic. In his account, after arriving at Desloges-Carrier’s house, he denies having yelled or having been aggressive in any way. In fact, he mentions that “he wasn’t doing anything and eventually, both women came outside”. It is clear to the Court that something is left out of that timeline. If he was “simply standing there doing nothing”, what brought both women to come outside and speak to him?

There must have been some exchange or incident that warranted the women to come confront the accused. In that regard, the Court finds that the accused’s version of the events was not entirely forthcoming.

[ 117 ] Finally, the Court is puzzled by the supposed loss of the video recording from June 14 th 2020. In his testimony, the accused explains that he first saved it on his Snapchat account, but his profile was inexplicably banned by the social network site. He also adds that he had saved the video file on a USB key and remitted it to his previous lawyer but said lawyer (unidentified at trial) reportedly lost it. [ 118 ] These claims are beyond suspicious. [ 119 ] First, it seems highly unusual that his lawyer would simply lose a client’s USB key.

The claim is hard to assess since the accused gave absolutely no detail about how that would have transpired. Furthermore, it is unlikely that the accused would give his one and only video file to the lawyer. After all, the video was taken from his phone. Presumably, the video file was saved somewhere on his phone or at least on a computer, which was used to export the file to a USB key in the first place.

The video’s importance was obvious, as was its conservation. [ 120 ] That being said, the Court’s scepticism is significantly tempered by the fact that in her testimony, the complainant admitted that the accused was in fact filming her during the argument. This admission lends credence to the accused’s claim. Nevertheless, the mysterious disappearance of the video leads the Court to conclude that the recording probably cast both parties in a negative light. [ 121 ] Despite these concerns and frailties, they do not warrant the wholesale dismissal of the accused’s testimony.

Instead, many of his claims are entirely plausible and inherently realistic. [ 122 ] First, the Court believes that he was in fact sleeping when the Reda returned home at around midnight on June 13 th . He was working at 6:00 am the next morning, which the complainant confirms in her testimony. Furthermore, if he wanted his girlfriend to return home (which both parties contend), it would make no sense for him to lock her out or ignore her at the door. She did precisely what he wanted.

As such, the fact that there was no answer to her calls and texts is consistent with Martucci-Costa having fallen asleep before her return. [ 123 ] The Court’s conclusion that the accused had fallen asleep further leads me to believe his sincere state of surprise – and panic – at 3:00 am when he woke up to discover that his girlfriend was missing in worrisome circumstances. He saw that she had been trying to enter the house, unsuccessfully, 3 hours earlier. He knew that she had made the trek on foot in the middle of the night. He noticed that her car was still outside.

They lived in a notoriously dangerous neighbourhood. [ 124 ] This state of panic largely explains his frantic attempts to locate her by his various calls and texts.

Desloges-Carrier explicitly acknowledges that the accused was panicking and worried about the complainant’s whereabouts, a situation exacerbated by the fact that she first lied about the complainant being with her. [ 125 ] Given how the events developed on the night of June 13 th , the Court believes that the accused was motivated by worry and not by feelings of jealousy or suspicion of adultery. [ 126 ] The accused openly admits to being insecure in the relationship and to often fearing that the complainant would cheat on him. He always feared the worst, he explains. This admission shows honesty on his part.

He in no way tried to minimize it, despite its potentially damning nature. As for the evening of June 13 th , he contends that he did not fear that the complainant was cheating on him. It was simply not a concern. The Court believes him on this subject. After his initial moment of panic, he was informed that the complainant was at Desloges-Carrier’s house. In fact, her friend confirmed this by text message and by sending a photo of them together. Once on the scene, he saw that she was in fact there.

Hence, his behaviour on the night in question was not prompted by a fear that she was with another man. [ 127 ] The fact that the accused was armed with a knife could be consistent with his version. Given the type of neighbourhood they lived in, the fact that it was 3:00 am, his girlfriend’s yet-unexplained disappearance and his decision to go out looking for her, it could be understandable that the accused decided to arm himself for his own protection. To be clear, the Court in no way condones the fact that he carried a weapon.

However, the context is relevant to the allegation that the knife was somehow used to harass or scare the complainant. [ 128 ] The Court also considers the fact that the accused did not flee the scene upon learning that the women called the police. Instead, he wished to remain until they arrived to ensure that they obtained his version. This is not indicative of a man who had something to hide. [ 129 ] Martucci-Costa’s account of the argument on June 14 th 2020 is relatively detailed, although he only vaguely explains how the complainant tripped or fell to the ground as she tried to climb on the bed.

Still, there is nothing inherently unrealistic about his account, including his claim that Reda threatened him with a knife. The fact that he did not report her to the police does not weaken his claim. It is entirely believable that as a young and physically fit man, he would not file charges against his girlfriend for domestic violence. His answer in that regard was spontaneous and patently sincere. [ 130 ] As for his refutations regarding the assaults and the confinement in December and in May, the Crown is correct when it says that the accused’s account is a bare denial.

Unlike the complainant, who provided some particulars of those altercations, the accused merely denied they ever happened, giving no detail and providing no alternate explanation of what was alleged. In fact, he did not recall any such events even happening. [ 131 ] Nevertheless, as defence counsel correctly points out, the fact that it is a bare denial is not a problem in and of itself. [47] Such a denial, whether we call it “strict”, “bare” or “flat”, cannot be turned into a reason to disbelieve an accused. [48] Often, an innocent defendant can do no more than deny what he is alleged to have done.

If the events alleged did not actually happen, what more can he be expected to say? To require a base-level of detail before believing an accused would effectively reverse the burden of proof, which should always be with the prosecution. [ 132 ] From a logical standpoint, it can be quite difficult to corroborate a negative. [49] As Beauregard J.A. expressed in R. c.

Prud’homme , what can an innocent person say to disprove a fact that, according to the complainant, occurred in the absence of any witnesses? [50] Sometimes, the best answer will be the simplest. This cannot be used against the accused. To reason otherwise would place him in a catch-22 situation. [ 133 ] Throughout her submissions, on three separate occasions, Crown counsel mentions the fact that the accused “pretty much denied everything”.

He generally denied the December 2019 allegations, he did not even mention the May 2020 events (other than to assert that they did not occur because they are fabricated) and he denied almost all the allegations from the June 2020 incident. Each time, the argument suggests that the flat denial itself is a reason to dismiss Martucci-Costa’s testimony. At one instance, counsel explicitly argued that the fact that the accused denied almost everything “affected his credibility”. [ 134 ] Based on the above-mentioned authorities, the Court disagrees.

Such reasoning is prohibited as it runs counter to the presumption of innocence. [ 135 ] That is not to say that I believe all of the accused’s testimony. [ 136 ] Obviously, his testimony is not to be assessed in a vacuum. Even at stages 1 and 2 of the W.(D.) test, the Court must consider the testimony of the Crown witnesses. [ 137 ] Ms. Reda’s testimony appeared to be sincere and heartfelt. She became emotional on many occasions during her address to the Court, sometimes openly weeping. A break was taken to allow her to regain her composure.

I have no difficulty believing that the relationship was a tumultuous one that deeply impacted her life. [ 138 ] Ms. Desloges-Carrier’s testimony was similarly spontaneous, frank and forthcoming. [ 139 ] Neither witness attempted to skirt questions in cross-examination.

Incidentally, the cross-examination did not expose any major flaws or contradictions in the complainant’s account. [ 140 ] Nevertheless, there are portions of her testimony that raise red flags for the Court on matters going to her credibility, her reliability, or both. [ 141 ] Notably, it is telling that the entire cell phone swatting incident was not mentioned in her examination in chief. This was hardly a peripheral matter. Instead, it went to the heart of the altercation during which she alleges being assaulted by the accused on June 14 th 2020.

She only acknowledged it when it was raised by defence counsel in cross-examination. She also then acknowledged that the accused had been sitting in the bed filming her. Still, she maintains that she does not recall if his phone fell to the ground after she knocked it out of his hand. In fact, pressed further, she cannot recall if that was the reason Martucci-Costa came out of the bed in the first place, i.e. to pick up his phone from the floor. She simply states that “all she remembers is being kicked in the face”. [ 142 ] These omissions in the altercation’s description could appear selective.

The fact that she swatted the phone out of his hand is relevant on two fronts. First, it shows that the complainant was far more aggressive than she initially depicted herself to be. Second, the mere fact that the accused was filming her has an inherent probative value: it bolsters the accused’s claim that Reda was the aggressor. That is precisely why he was filming her and, consequently, why she was upset by the fact of being filmed.

Conversely, if he was the one that aggressively pushed and kicked her, why would he be filming the entire scene? [ 143 ] The Court also has difficulty understanding how, from a seated position on the bed, the accused could violently push the complainant and kick her in the face. [ 144 ] As for the witness’s reliability, it is problematic that in describing the December assault, she recalls absolutely nothing about the event, other than her face rubbing against the rug. Obviously, she cannot be expected to remember minute details from a day dating back three years.

However, she cannot recall what the argument was about, how the altercation ended or even if she stayed at the house that night. Those are integral components of the event itself. It is surprising that the complainant cannot describe even their general context, given the memorable nature of the alleged assault. [ 145 ] Regarding the accused’s arrival at Desloges-Carrier’s home on June 13 th , the complainant stated that the accused was yelling and screaming upon his arrival.

This contradicts her friend’s testimony, who instead asserted that the accused was simply outside, pacing back and forth, not saying anything. [ 146 ] Finally, one element of the June 13 th allegations seems logically unrealistic. Both the complainant and Desloges-Carrier claim that the accused chased after them in the street in the middle of the night. With great respect, this is difficult to comprehend. All three witnesses (including the accused) assert that the discussion took place directly outside of Desloges-Carrier’s house.

Similarly, all three witnesses confirm that when the police arrived, they were all in front of that same house. [ 147 ] This bears the question: the accused chased them where ? It would be different if the facts revealed that the police met them up the street or around the corner, as the accused gave chase. However, that is not what they claim. The parties were all still at their original starting point. Do they contend that they ran a circle around the block? Do they contend that they circled around anything? During the chase, did the accused manage to catch them? If not, why not? What was his purpose?

The Court had the benefit of observing the accused’s physical stature during the trial. He is a slim, athletic, tall man. He works in landscaping. Had he chased after the complainant and her friend, he would have unquestionably caught them. [ 148 ] The Court simply cannot conclude, as a finding of fact, that the accused chased the two women. This claim appears to have been added for effect. [ 149 ] As for the alleged multiple calls and text messages from the accused, Desloges-Carrier explained that he used the Instagram platform (since they did not have each other’s actual phone numbers).

Interestingly, a screen shot from Desloges-Carrier’s call log filed

by the prosecution [51] shows that she called the accused at 3:47 am. That call lasted 50 seconds. She then texted him asking for his real phone number. [ 150 ] Another set of screen shots was filed in evidence [52] by this witness. Alas, they are very difficult to interpret. On the first page, we see 4 calls from a “No Caller ID”, which the witness associates to the accused. Two of said calls were made at 12:41 am, while the two other calls simply mark “yesterday”. The “yesterday” is particularly hard to understand; no time is indicated and the witness did not explain which calls this is a reference to.

As for the third page of the document, we see 7 consecutive calls from “No Caller ID”, but again, no time is indicated. They all simply mark “Saturday”. Thus, they are of little help in determining when the calls were made, their relative frequency and their duration. [ 151 ] Desloges-Carrier also claims that during the night of June 13 th , the accused sent her multiple text messages demanding that the complainant come outside. Yet, none were produced in evidence. To be sure, the Crown is under no obligation to produce any specific item of evidence.

Similarly, the witness was under no legal obligation to conserve those text messages. That being said, she did conserve screen shots of the alleged phone calls.

Knowing full well that the police had been contacted and that the matter would be litigated, it is difficult to understand why these supposedly incriminating text messages were not produced, whereas less-than-clear call logs were. [ 152 ] With respect to the December 2019 incident (which is no longer formally before the Court but remains relevant to credibility), the Crown asserts that the complainant’s account is corroborated, at least in part, by certain admissions by the accused. For instance, the accused acknowledges that they sometimes hung out at his mother’s house.

Similarly, he acknowledges that his mother’s house had various carpets in it. [ 153 ] With respect, these “admissions” do not corroborate anything. They are entirely peripheral, neutral elements and they do not make the complainant’s account any more or any less credible or reliable.

The following analogy illustrates the point: if a complainant alleges that her boyfriend slammed her head against the bedroom door and the accused admits in his testimony that he does in fact have a bedroom door, this is not incriminating or corroborating in any shape or form. [ 154 ] The photos filed as exhibit P-1 give me great pause. On their face, they corroborate the complainant’s account. However, they are not conclusive. The print quality is very poor. In many pictures, the Court can see nothing at all.

Photos 6, 7 and 10 definitely show marks and scratches, but the complainant was unable to specifically explain which event caused them. As for photos 1 and 5, which are directly linked to the June 14 th altercation, the faint bruising is not inconsistent with the accused’s claim that the complainant fell to the ground while she was attacking him . [ 155 ] To be abundantly clear, the Court is not concluding that it believes the accused’s account of all the events. Nor do I conclude that the complainant lied or fabricated the allegations. [ 156 ] The fact-finding process is far more complex.

After having considered the evidence as a whole, including a careful review of the frailties and contradictions in each witness’s account, I am simply unable to decide whom I believe. On factual matters, such a doubt must go to the benefit of the accused. 4- The legal implications of the Court’s findings of fact [ 157 ] Due to my inability to determine which of the conflicting versions is true, the Court cannot conclude beyond a reasonable doubt that the offence of assault was committed by the accused. [ 158 ] The same conclusion applies to the count of forcible confinement.

The Court is left with a reasonable doubt as to whether the accused prohibited Reda from leaving the apartment in May, taking her keys and physically restraining her in order to prohibit her from going out with her friend. [ 159 ] Without specifying a date, the accused does acknowledge, on one occasion, having physically restrained the complainant and prevented her from leaving.

The date issue is problematic, as we cannot determine if said event occurred before January 26 th 2020 and is therefore in this Court’s jurisdictional void described above. [ 160 ] Notwithstanding the date, the Court cannot exclude, beyond a reasonable doubt, the accused’s claim that he held Reda back and that he hid her keys in order to prevent her from committing an imminent suicide. As he explained, she had threatened to kill herself in the past on several occasions. She also suffered from a borderline personality disorder.

In the circumstances, the accused believed that if he left her leave the apartment in her irrational state, she would follow through on her threat. He claims to have wanted to calm her down before she got behind the wheel of her car. [ 161 ] Without necessarily believing the accused’s claim, the Court cannot dismiss it either. I cannot exclude the possibility that the accused held her back for benevolent reasons and not out of frustration, jealousy or anger.

As such, if motivated by a desire to temporarily subdue and restrain the complainant to prevent her from hurting herself, I have a reasonable doubt regarding the application of the defence of a third party provided at s. 34(1) of the Criminal Code . In R. v.

Kokko , in admittedly different circumstances, the Court recognized that such a use of force could be justified: I find that the accused was justified in attempting to restrain her initially in order to protect her from harming herself and then in doing so later in the day when attempting to calm her down so that she did not engage in further aggressive behaviour towards him. Restraining someone who is highly intoxicated and consequently violent can involve the application of force. Such force, when proportionate to the situation, reasonably exercised and for legitimate purposes, does not constitute assault.

In my respectful view, this case was not a case of assault. Should I be wrong about the nature of the force employed by the accused to restrain the complainant on the occasions in question, I find that when the accused applied force to restrain her and to protect himself, he initially believed the complainant was capable and very

likely to harm herself and later that she was going to harm him more than she had already done so […] I further find that the accused’s use of force was not aggressive and that it was directed at preventing the complainant from harming herself or subjecting himself to bodily harm. I find that the force he applied to restrain her was both reasonable and proportionate in the circumstances. [53] [emphasis added] [ 162 ] In R. v. Tarala , the Court also implicitly recognized that use of force may be permitted to prevent a suicide or self-harm. [54] Insofar as R. v.

Carrière espoused the opposite view, I respectfully disagree with the latter decision. [55] [ 163 ] In the case at bar, the use of force was reasonable given the nature of the threat, the nature of the relationship and the history of warnings of suicide. The extent of the response was proportional. Holding someone by their waist and hiding their keys is far less impactful than striking them. [ 164 ] Alternatively, if s. 34(1) C.C. could not offer a justification for forcible confinement, the defence of necessity would be another available defence.

The common law defence, preserved in s. 8(3) C.C. , is limited to cases where the accused acted truly involuntarily and where 3 conditions are met: (1) imminent peril or danger, (2) no reasonable legal alternative to the action taken, and (3) proportionality between the harm inflicted and the harm avoided. [56] It is a rare excuse and its application must be strictly controlled and scrupulously limited. The consideration of the peril and whether there was any legal way out are assessed using a modified objective approach.

The test to be applied to the third element is a purely objective one. [ 165 ] These conditions are all met here. I note that in R. v. Latimer , the Supreme Court recognized that a threat to someone else’s life can satisfy the first requirement and therefore ground the defence of necessity. [57] In R. v.

Morris , the Court held that the defence of necessity can apply to a case where a man restrains the complainant in order to prevent her from jumping from a moving car, or even where he holds her in a headlock for a prolonged period of time in order to prevent her from stumbling into moving traffic. [58] [ 166 ] Martucci-Costa must therefore be acquitted of forcible confinement. [ 167 ] As for the offence of criminal harassment, the Court has found, as a matter of fact, that many of the repetitive calls and text messages were prompted by sincere worry on the part of the accused, who was frantically trying to locate his girlfriend in the middle of the night.

They were not objectively harassing. Instead, they were entirely justified. At the very least, the accused lacked the requisite mens rea . [ 168 ] What remains is the fact that once on the scene, the accused refused to leave and he insisted on the complainant coming back home with him. [ 169 ] Contrary to the accused’s claims, the Court concludes that he was in fact insistent and confrontational, despite being told to leave. Being told once should have sufficed. Being told multiple times was abundantly clear.

Moreover, after the women warned that they would call the police, any ambiguity about Reda’s intentions should have dissipated. [ 170 ] Martucci-Costa’s conduct was undoubtedly bothersome, vexing and annoying, particularly because it was the middle of the night. However, did it reach the criminal standard of “tormenting, troubling, continually worrying, plaguing, bedeviling or badgering”? [ 171 ] The Court concludes that it does not. He behaved like an insistent boyfriend in the course of a stressful night. He resolutely wanted his girlfriend to return home with him. She refused.

He feared that the relationship was deteriorating and he wanted some confirmation that she still loved him. He would not get it that night. Although his conduct may have been inappropriate, even deplorable, it was not criminal. [ 172 ] This was an intense and emotional argument. Such occurrences are always unfortunate. However, they will not necessarily engage the criminal justice system. As the Supreme Court of Canada underscored in R. v.

Hutchinson , we must exercise great care in not overusing the blunt instrument of the criminal law on undesirable or unethical conduct, but which nevertheless lacks the reprehensible character of criminal acts. [59] [ 173 ] The Court is also left with a reasonable doubt as to whether his conduct was such that it objectively caused the complainant to fear for her physical or psychological safety. That is so even though one instance of “threatening conduct” may suffice to constitute criminal harassment. On this subject, I note that the possession of the knife has minimal importance here.

All witnesses agree that the accused never took out the knife, brandished it or threatened to use it. In fact, he made no mention of it during the argument. The only reason the complainant knew about it was her underlying presumption that he always carried it for unrelated purposes (pertaining to his alleged drug dealing). The Court has already concluded that he armed himself with the knife due to the late hour and the dangerous neighbourhood. Had he wanted to use the knife to intimidate the complainant or her friend, he would have. He did not.

CONCLUSION Having considered the evidence as a whole, I conclude that the Crown has failed to prove the accused’s guilt beyond a reasonable doubt. FOR THESE REASONS , the accused is found not guilty on all charges. __________________________________ D. GALIATSATOS, J.C.Q.

M e Jeanne Gagné Counsel for the Crown M e Serge Lamontagne Counsel for the accused Hearing dates: November 3 rd and 7 th 2022