r v. Abdellah, 2016 QCCQ 9599

R. c. Guirchan 2016 QCCQ 9599 COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL N o : 500-01-063894-114 DATE: 30 June 2016, written reasons released 12 September 2016 _____________________________________________________________________________ BEFORE THE HONOURABLE PATRICK HEALY, J.C.Q. _____________________________________________________________________________ THE QUEEN Prosecutor v.

Abdellah GUIRCHAN Accused _____________________________________________________________________________ JUDGMENT _____________________________________________________________________________ [ 1 ] On 30 June 2016 Mr. Guirchan was found guilty of one count of sexual assault committed on N. M. shortly after 04h00 on 27 December 2009. [1] These are the reasons for that decision. [2] Undisputed facts [ 2 ] Mr. Guirchan and the complainant began a relationship in November 2009. In the beginning it was happy and hopeful. They saw each other frequently. Mr. Guirchan introduced N. M. to his family.

In the early hours of 27 December 2009 an incident occurred in the complainant’s apartment that is the subject of this prosecution. At around 02h00 that morning Mr. Guirchan sent the complainant a message by text in which he asked if he could come to her apartment. He arrived at about 04h00 and she let him in. From this point to the end of the incident only the complainant and Mr. Guirchan were present. The relationship continued after the incident but began to deteriorate. The complainant was disturbed by the events of 27 December 2009 and by the discovery in January 2010 that Mr.

Guirchan had been unfaithful to her. The complainant ended the relationship at the end of January 2010, although before and after that date there were some communications between her and Mr. Guirchan and between her and his mother. Basic considerations [ 3 ] The complainant testified. Mr. Guirchan did not and he has nothing to prove. It is his right not to testify, or to present any evidence in defence, and no adverse inference may be drawn from this choice. It remains for the prosecution to prove its case beyond reasonable doubt on the whole of the evidence, including any evidence tendered by the defence.

An examination of the whole of the evidence precludes a simple choice between or among conflicting views of the evidence. The case for the defence in this matter is that on the whole of the evidence the prosecution cannot discharge its burden to this standard of persuasion. There is, of course, a difference between the existence of a reasonable doubt and the exclusion of any possible doubt. As a matter of formal logic, there is a possibility of doubt in any case but in a criminal matter the whole of the evidence must exclude any reasonable doubt.

In this regard a reasonable doubt must connote a measure of substance derived from an assessment of the evidence as a whole. The complainant’s testimony [ 4 ] N. M. tesitifed that when she allowed Mr. Guirchan into her apartment it was apparent that he was highly intoxicated. He demanded that she lock the door to the apartment and he then began to undress himself in the hall. He then put the complainant on the bed in her bedroom and demanded that she perform fellatio. Oral penetration thus occurred but without her consent. She said that she wanted no sexual contact with him due to his intoxicated state.

He then penetrated her vagina with his penis, again without consent, and the penetration was brief because he could not achieve an erection. He fell asleep in a position that left her unable to move until several hours later when she went to work. According to her testimony, Mr. Guirchan said several times that he had no recollection of the previous hours since his arrival at the apartment. It must be noted that the defence agrees that Mr. Guirchan had been highly intoxicated. Defence theory

[ 5 ] The theory of the defence in this case is twofold. First, if sexual contact of the type described by the complainant occurred, it was consensual. This branch of its theory will succeed if the evidence as a whole raises a reasonable doubt as to consent. Central to this position is a challenge to the credibility of the complainant. The second branch would appear to be that no sexual contact took place because Mr. Guirchan was too intoxicated to have an erection and thus neither of the acts asserted by the complainant could take place.

This second point must be rejected immediately because an erection cannot in fact or in law be considered a necessary condition to proof of the elements of sexual assault. Nothing more will be said of this second point. [ 6 ] To support its theory the defence suggests that the complainant invented the allegation of sexual assault on 27 December 2009 as an expression of vengeance concerning the deterioration and termination of the relationship, and especially the discovery of Mr. Guirchan’s infidelity to her.

The defence affirms that there is a foundation for this theory in the fitful continuation of the relationship until the end of January 2010, in the continued communications thereafter between Mr. Guirchan and the complainant, and in the continued communications between the complainant and Mr. Guirchan’s family. There is no question that these elements suggest mixed feelings, some regret, some remorse and perhaps some anger on the complainant’s part. She said as much in her testimony.

But a central issue here is whether these elements raise a reasonable doubt concerning the credibility and reliability of her account of the events of 27 December 2009. They do not. Complainant’s testimony [ 7 ] The complainant’s testimony was fluid and detailed. When she was uncertain of a detail, she said so both in direct and cross- examination. Her recollection was clear. Having undressed himself, Mr. Guirchan forced her onto the bed and demanded that she perform fellatio. This sexual activity occurred, according to her testimony, and it was not consensual.

Thereafter he penetrated her vagina and this sexual activity, according to her testimony, was not consensual. There were therefore two non-consensual sexual acts in sequence, although only one transaction is alleged. The complainant testified that she was very fearful. [ 8 ] The defence pleaded that the complainant might have anticipated sexual activity to occur when Mr. Guirchan came to the apartment. There is no evidentiary foundation for this other than her nightclothes. Even if there were any substance to this suggestion, it is not inconsistent with the refusal to consent first when Mr.

Guirchan demanded fellatio and, again, when he penetrated her vagina. The complainant’s refusal of consent is clear in her testimony. There is no inconsistency in refusing or withdrawing any consent when she perceived his advanced state of intoxication and when he applied force to her. [ 9 ] The defence candidly acknowledges that Mr. Guirchan was highly intoxicated at the time on 27 December 2009. Its case for a reasonable doubt, based on a lack of credibility and reliability, rests on developments after 27 December 2009 to support the submission that the complainant’s submission was animated by spite.

The complaint addressed these suggestions directly in her testimony and acknowledged mixed feelings, remorse and regret in the following weeks before making a complaint. These sentiments are not inconsistent with testimony concerning the incident of 27 December 2009 that is otherwise cogent, fluid and uncontradicted. Once again, the possibility of an inconsistency is not the same as inconsistency and speculation is not a reasonable doubt. FOR THESE REASONS Mr. Guirchan is found guilty as charged. ____________________________________ PATRICK HEALY, J.C.Q.

M e Roxane Laporte For the prosecution M e Zalman Haouzi For Mr. Guirchan