2020 QCCA 1794, 2020 QCCA 1794

LSJPA — 2021 2020 QCCA 1794 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-08-000523-185 (525-03-063150-171) DATE: November 25, 2020 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. MARIE-JOSÉE HOGUE, J.A. STEPHEN W. HAMILTON, J.A. X APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT CAUTION: The Youth Criminal Justice Act prohibits the publication of the name of a child or young person, or any other information that could identify him or her as a young person dealt with under this Act, or as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person, except by court order..

Anyone who contravenes these provisions is liable to criminal prosecution. ( Sections 110(1) , 111(1) and 138 Y.C.J.A. ) I INTRODUCTION [ 1 ] X appeals his conviction of sexual assault contrary to s. 271 (

a) of the Criminal Code rendered orally on May 18, 2018 by the Honourable Louis Grégoire, sitting as a judge of the Youth Division of the Court of Quebec, District A. [1] He argues, in effect, that the verdict is unreasonable because the trial judge convicted him on the basis of a fact that was not in evidence, that he misinterpreted the evidence as a whole and that he failed to take account of certain aspects of the testimony of A. II THE FACTS [ 2 ] The complainant and the appellant were respectively 14 and 16 years old at the time of the events in issue, which occurred on Friday, February 24, 2017.

They had been long-time friends without any romantic relationship between them. [ 3 ] On the evening in question, the complainant and one of her friends, A, went to the appellant’s residence where they began to spend time in the basement. They amused themselves watching videos and playing video games. Another male friend was also present, and the appellant’s parents were elsewhere in the house. [ 4 ] It is at this stage that the respective accounts of events begin to diverge. [ 5 ] The complainant testified that she was not seated close to the appellant in the basement.

She conceded during cross-examination that she and the appellant had hugged each other that evening in the basement. [ 6 ] According to the complainant, the appellant mentioned to her that he wanted to show her something in his bedroom, where they then went. Once there, she testified that the appellant closed the door and put something in front of it, and then pushed her on his bed. She attempted to get off the bed but the appellant blocked her from doing so. He then removed his pants and underwear, and applied a condom to his penis.

She asked what he was doing, and indicated her refusal to engage in sexual activity. [ 7 ] He got on top of her and the sexual assault then began, during which the complainant stated that she kept saying “no”. Once it had come to an end, he told her not to discuss what had just transpired with anyone. They both then returned downstairs, and soon after the complainant left the appellant’s home with A.

[ 8 ] At school the following week, the appellant sought to talk to the complainant, but she rebuffed him. She testified that she also refused to respond to multiple texts messages and telephone calls from him. In cross-examination, she conceded that she initiated an extensive text message exchange with the appellant the day after the events in issue during which she inquired “Is everything ok?” to which he answered “Yeah, I’m tired.”.

This exchange includes her inquiring, “Why were you crying?” [ 9 ] Eventually she described what had transpired to one of her teachers, who counselled her to contact the police, which she did. She was interviewed, and charges were then laid against the appellant. [ 10 ] At trial, the appellant testified in his own defence. [ 11 ] He testified that they were physically close in the basement, and that her behaviour (“flashing” her breasts on video earlier in the day) suggested that she was interested in sexual activity with him.

A confirmed that the two of them were physically close on the couch. [ 12 ] He stated that he and the complainant went to his bedroom, where she had been on previous occasions. He placed a small piece of furniture in front of the bedroom door so it would remain closed. She knew the door was problematic and how to open it if she chose to do so. They then sat beside each other on the bed, after which the complainant touched his belt, struggled to remove it, finally did so and began to masturbate him. He went to retrieve a condom, applied it with her on top of him and grinding on him.

He asked her if they should have sex, and after a brief hesitation on her part, they had a consensual sexual relation. [ 13 ] When intercourse began, the complainant was on top of him, but she began to experience pain, after which they changed positions and the appellant was on top of her. The intercourse concluded when they heard someone coming up the stairs. The complainant asked the appellant not to say anything to anyone as she did not want her boyfriend to become aware of what had just transpired. They then went downstairs and the evening came to an end shortly thereafter.

III THE JUDGMENT OF THE COURT OF QUEBEC [ 14 ] The trial judge correctly noted that, in light of the starkly contradictory versions of the complainant and the appellant, his analysis would proceed based on the principles identified by the Supreme Court of Canada in R. v. W. (D.) [2] as well as the judgment of this Court in R. v.

Amiri. [3] [ 15 ] He then observed that the applicable principles in Canadian criminal law relating to sexual assault are to the effect that an appellant cannot rely on the silence of a sexual partner or passivity or ambiguity to presume consent, and that consent, once given, can be withdrawn at any time. Once consent is withdrawn, the sexual activity cannot be resumed unless consent is clearly restored, failing which any further sexual activity constitutes sexual assault. [ 16 ] In the instant case, the trial judge observed that there was significantly contradictory evidence.

The trial judge rejected the appellant’s version on some issues. For example, the appellant testified that he “found her rather eager” for some time, and that she had been “fascinated” by a photo of his penis that his girlfriend had sent her.

The trial judge found his testimony in this latter respect “extremely difficult for (him) to believe”. [ 17 ] After having described the contradictory testimony of the two witnesses on the sexual assault, the trial judge concluded that although the complainant hesitated initially, she did consent to sexual intercourse, but withdrew that consent when she indicated her discomfort, which coincided with the change in position that placed her on top of the appellant. Such withdrawal of consent meant that the ensuing sexual activity amounted to sexual assault.

IV GROUNDS OF APPEAL [ 18 ] The appellant’s principal ground of appeal is that the trial judge rendered an unreasonable verdict. He also alleges that the trial judge made four specific errors: 1. The trial judge erred by rejecting part of the appellant’s testimony on the basis of a fact that was not in evidence and of which he could not take judicial notice 2. The trial judge rendered contradictory verdicts with respect to the counts of sexual assault and sequestration 3. The trial judge erred by failing to consider the relevant aspects of A’s testimony 4.

The trial judge’s reasons are not sufficient to allow for an adequate assessment in appeal. V ANALYSIS [ 19 ] The judge was faced with two contradictory versions of what happened. [ 20 ] With respect to the sexual intercourse, the complainant testified that the appellant pushed her on the bed and that he penetrated her while she kept saying no before and throughout intercourse. She said that he was on top of her and that the position did not change.

She said in her statement to the police that it hurt and that it was uncomfortable in that position. [ 21 ] She stated the following in her statement to the police, which she adopted during her testimony:

Q. Okay. Starting from there, what happened, once you found yourself on your back? A. He goes on top of me. Q. Okay. A. And he forces himself in me. [4] … Q. Okay. And while he's into you, does he say something? Does he keep the same position all the long? A. He keeps the same position. [5] [ 22 ] The appellant’s version was very different. He testified that they had consensual intercourse. She was on top of him at first but she told him that it hurt so they switched positions halfway through so that he was on top of her. [ 23 ] The appellant’s testimony on that issue was clear: Q. Okay.

And so she was on top of you during the intercourse? A. Yes. Q. For all the time of the intercourse? A. No. About halfway through, maybe more, she ... me and her, like we switched positions. Like then I was ... I was on the top and then she was on the bottom. That was for like the last ... like I guess the last maybe fifteen (15) minutes. Q. Okay. A. She had her legs wrapped around my back, like around my … the back of my thighs. She was putting a lot of pressure there, like towards her, like more penetration and that's what I did. [6] [ 24 ] He was consistent during his cross-examination: Q.

So the first position was her on top of you? A. Correct. Q. And then the second position was you and her with her legs around your back? A. Correct. Q. Okay. And it's when you took the second position that she said it hurt? A. It was the first position that hurt. Q. Okay. A.

And then we went to the second position. [7] [ 25 ] Faced with two contradictory versions of what happened and based on his assessment of credibility, it was open to the judge to conclude that he believed the complainant and that the appellant’s version did not raise a reasonable doubt, and to convict the appellant on that basis. [ 26 ] However, that was not what the judge decided. Rather, he used parts of both testimonies to create his own version of what happened that evening. [ 27 ] He largely rejected the complainant’s version and accepted the appellant’s version.

He concluded that the complainant initially consented to intercourse, that intercourse began with her on top of him, that she found it painful and that there was a change of position halfway through so that he was on top of her. However, the judge rejected the appellant’s version that she wanted to change positions because she found the first position painful. Instead, he concluded that she withdrew her consent because of the pain and that she refused to continue.

He also concluded that the appellant was aware of her refusal to continue. [ 28 ] With respect, the judge’s reasoning is flawed and is not supported by the evidence. [ 29 ] The judge largely rejected the complainant’s version of the events and accepted the appellant’s version, except that he imported her refusal into the appellant’s version and placed it at the time of the change of positions. He thereby created a version of the events that is inconsistent with the testimony of both the complainant and the appellant. [ 30 ] Further, the judge’s reasoning includes a number of clear errors.

One key passage in the judge’s reasoning is the following: It is clear and definitive and the evidence is uncontradicted on this point, even the accused corroborates the victim’s testimony on the fact that there was a break during the intercourse, but what the accused interpreted as a request to change position was a clear expression

of a refusal. [ 31 ] The judge misstates the complainant’s testimony. She never testified that there was a break or a change of position during the intercourse. Her testimony was clear: he was on top of her throughout the intercourse. [ 32 ] With respect to the “clear expression of a refusal”, the judge goes on to say: What is clear from the evidence and admitted by the accused is that he was aware that the victim was in pain and that she wanted what was happening to stop.

He was aware of the victim’s refusal to continue intercourse and it is at this moment that the Court must conclude that a sexual assault was committed. [ 33 ] This misstates the appellant’s testimony. He admitted in his testimony that he was aware that she was in pain in the first position. However, he never admitted that he was aware that she wanted what was happening to stop or that that she refused to continue intercourse. Rather, he testified that they changed positions because the first position was painful.

Her version, rejected by the judge, is that she expressed clear refusals before intercourse started and throughout intercourse. She never said that she withdrew her consent at any time or that she refused to continue. According to her version, rejected by the judge, there was no change of position. [ 34 ] Finally, the judge rejected the appellant’s version that they changed positions because she was in pain: He said that the victim was in pain and according to him, she wanted to change position.

What he described as a change of position however was in fact a way to make penetration deeper and therefore more painful in the circumstances. This assertion defies all logic and cannot be accepted. [ 35 ] The appellant testified that she was in pain when she was on top which is why they changed positions. He did not testify that she was in pain in the second position. To the contrary, he testified that she used her legs in the second position to make penetration deeper. She said in her statement that intercourse hurt and that she was uncomfortable.

However, she was referring to the position where he was on top, because according to her that was the only position. There was no evidence as to whether the change in position resulted in deeper penetration or made intercourse more painful. This is pure supposition on the trial judge’s part, not based on any evidence. The trial judge ought not to have speculated as to the precise cause of the vaginal pain the complainant was experiencing. [ 36 ] The Court concludes that the verdict is unreasonable and that the conviction should be set aside.

It is therefore unnecessary to consider the other grounds advanced by the appellant. Since there was evidence that could support a conviction, the Court will order a new trial. FOR THESE REASONS, THE COURT: [ 37 ] ALLOWS the appeal; [ 38 ] SETS ASIDE the conviction on the charge of sexual assault; [ 39 ] ORDERS that a new trial be held on the charges of sexual assault and sexual interference. ALLAN R. HILTON, J.A. MARIE-JOSÉE HOGUE, J.A. STEPHEN W. HAMILTON, J.A.

Mtre Benoit Demchuck BOURGON CORBEIL AVOCATS For the Appellant Mtre Mario Giroux DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the Respondent Date of hearing: September 2, 2020