2021 QCCA 1754, 2021 QCCA 1754

I.M. c. R. 2021 QCCA 1754 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007213-190 (500-01-152306-178) DATE: November 22, 2021 CORAM: THE HONOURABLE FRANÇOIS PELLETIER, J.A. ALLAN R. HILTON, J.A. GUY GAGNON, J.A. I. M. APPELANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT THIS FILE IS SUBJECT TO A PUBLICATION BAN PURSUANT TO

SECTION 486.4(1) Cr.C . [ 1 ] This is an appeal from a judgment rendered on October 17, 2019, by the Honourable Christian M. Tremblay of the Court of Quebec, District of Montreal which found the appellant guilty on four different counts of sexually abusing his stepdaughter, X (“the complainant”) [1] over a lengthy period of time. [ 2 ] The four counts for which the appellant was convicted read as follows: 1. Between November 1, 2000, and March 14, 2002, in Montréal, district of Montréal, for a sexual purpose, did touch a part of the body of X, a person under the age of fourteen (14) years, committing thereby the indictable offence provided by

section 151 [ Cr.C . ] . 2. Between November 1, 2000, and March 14, 2002, in Montréal, district of Montréal, for a sexual purpose, did invite, counsel or incite X, a person under the age of fourteen (14) years, to touch him, committing thereby the indictable offence provided by

section 152 [ Cr.C . ] . 3. Between March 14, 2002, and March 14, 2004, in Montréal, district of Montréal, did touch for a sexual purpose a part of the body of X, a young person towards whom he was in a position of trust or authority or being a person with whom X was in a relationship of dependency, committing thereby the indictable offence provided by section 153(1)a) [ Cr.C . ] . 4.

Between March 14, 2004, and January 1, 2008, in Laval, district of Laval, in Montréal, district of Montréal, did commit a sexual assault on X, committing thereby the indictable offence provided by section 271(1)a) [ Cr.C . ] . [2] Facts [ 3 ] At trial, the evidence consisted mainly – but not exclusively – of the testimony of the complainant and the appellant. The trial judge made a thorough

summary of both versions. As for the rest of the evidence, two exhibits are relevant to the appeal: P-8 is a series of photographs showing a Koran with part of a page – a corner – that is missing; P-9 consists of two photographs showing a scar on the complainant’s chest. [ 4 ] For the purposes of the appeal, the testimony adduced at trial can be summarized as follows. ***** The complainant’s version

[ 5 ] The appellant started to live with the complainant’s mother in December of 2000, following a religious celebration. The complainant was then 12 years old. [ 6 ] The complainant testified that a few weeks after the religious wedding, the appellant began to sexually assault her. These abuses occurred on a weekly basis and continued until she was 19 years old. [ 7 ] The appellant usually had complete sexual intercourse with her, including vaginal penetration. When she was menstruating, he did not penetrate her.

As the years went by, he also asked her to perform oral sex or masturbate him. [ 8 ] The appellant exerted psychological pressure on the complainant to ensure that she did not report the abuses, such as by threatening her mother’s health. The complainant further recalled two specific events that are relevant to the appeal. [ 9 ] One night after the appellant had sexual intercourse with her on the futon in the basement of the house, he went upstairs and came back with the Holy Koran that the family kept in a showcase.

He tore the corner of a page and swallowed it, and told her that having God inside him would help him to stop abusing her. [ 10 ] On another occasion, an incident occurred regarding a religious medallion she wore around her neck. During penetration, the appellant saw the medallion and said he did not want her to wear religious symbols. He told her to remove it and she refused. He pulled it off himself, and in doing so, he injured the complainant. She now has a scar on her chest between her breasts.

The appellant’s version [ 11 ] The appellant also testified during which he essentially denied the complainant’s characterization of the nature of their relationship. [ 12 ] He admitted that the complainant did not like him at the beginning. She was quite upset by the marriage between him and her mother. However, the situation improved over time. He had a very good relationship with her when she became a young adult. [ 13 ] The appellant denied having entered in the complainant’s room in 2000, but in cross-examination acknowledged he sometimes went into the kids’ room.

As for the complainant, he went to her room if she called for help or to fix plumbing. If she was sleeping, however, he did not enter. [ 14 ] He testified that the Koran was an old book in poor condition, which explains the torn page. The Koran was exposed in the showcase and was never used.

Proceedings [ 15 ] At the outset of the trial, the parties made a number of admissions, most notably that the photographs would be filed by the prosecution by consent. [ 16 ] On October 17, 2019, the trial judge rendered judgment finding the appellant guilty on all counts. [ 17 ] On February 28, 2020, in accordance with the joint submission of the parties, the trial judge sentenced the appellant to a term of imprisonment of seven years to be served concurrently on counts 1, 2, and 4 – less 6 months and 2 weeks as credit for time spent in presentence custody. [3] In addition, the trial judge sentenced the appellant to a term of imprisonment of three years on count 3, also to be served concurrently. [4] [ 18 ] On March 16, 2020, the appellant filed an application to be released from custody pending his appeal, which was granted on March 20, 2020. [5] Trial judgment [ 19 ] After setting out the competing versions of the complainant and the appellant, the trial judge reiterated the basic principles of a criminal trial, and then set out in detail the essential elements of the four offences.

He went on to explain the principles applicable to the assessment of testimonial evidence and wr ote : [6] [80] In the presence of diametrically opposed versions, it is not a credibility contest.

There is also no need to choose the more credible of the two versions . [81] When an adult is testifying as to events which occurred when he or she was a child, the credibility should be evaluated as mentioned by the Supreme Court in R. [ v. ] W.(R.) : […] In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness.

Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying . [82] More recently, our Court of Appeal wrote: [40] […] En quelques mots, puisqu’un enfant ne perçoit pas les événements de Ia même manière qu’un adulte, Ia mémoire de ces mêmes

événements sera conséquente. Ainsi, ii [sic] semble inévitable que le récit des abus subis dans Ia jeune enfance, et racontés à l’âge de 43 ans, souffrira d’un manque de détails, de déformation des faits, voire de certaines incohérences . […] [References omitted; emphasis added] [ 20 ] The trial judge then undertook to apply these principles to the testimony, within the framework laid out by the Supreme Court in R. v.

W.(D.) . [7] [ 21 ] From the outset, the judge wrote that “[the complainant’s] testimony was clear and fairly detailed in opposition to the [appellant’s] testimony which was laborious, sometimes confused and disjointed”. [8] Furthermore, he noted that the appellant was repeatedly “asked to specify about his relationship with [the complainant] and he avoided answering simply and directly to the question”. [9] [ 22 ] In sum, the trial judge did not believe the appellant, and concluded as follows: [103] The accused rarely answered the question directly. His answers were unnecessarily complicated.

There was no conviction in his testimony. His answers were intended to depersonalize sexual acts by generalizing. [104] The Court does not believe the accused’s denegation of facts. It should be set aside. His testimony has no probative value. [10] [ 23 ] On the other hand, the judge did believe the complainant’s testimony: [113] Her testimony was rather detailed: period of time, places, and distinctive events. She was able to give details not only about sexual intercourse, but also about collateral events. [114] The cross-examination did not affect her in any way.

She did not contradict herself. [115] X testified without being aggressive. She testified with aplomb and detachment. She was calm and sincere. Her testimony is coherent and holds no contradiction. Her story is detailed, reliable and trustworthy. [116] Her testimony is blatantly true. [117] The Court considers X’s testimony credible and reliable. [11] [ 24 ] In light of all the evidence, the trial judge considered that there was no reasonable doubt as to the guilt of the appellant.

Finally, he believed that the Crown had discharged its burden of proof for each count. [ 25 ] Consequently, the judge convicted the appellant of the four counts in the indictment. Questions on appeal [ 26 ] The appellant submits the following questions: Did the trial judge err in admitting exhibits P-8 and P-9 into evidence, as they are self-serving and/or oath-helping? Did the trial judge err in his application of R. v. W.(D.) in various ways? [ 27 ] The Court is of the view that both questions should be answered in the negative, and therefore that the appeal should be dismissed.

Analysis Did the trial judge err in admitting exhibits P-8 and P-9 into evidence, as they are self-serving and/or oath-helping? [ 28 ] In Alexandre c. R. , Chief Justice Duval Hesler, on behalf of this Court, summarized the rule against self-serving evidence as follows: [12] [52] La preuve d’une déclaration extrajudiciaire d’un accusé qui tend à le disculper n’est généralement pas admissible en vertu de la règle qui interdit la preuve préconstituée. Une telle preuve n’est pas fiable, car il s’agit d’une déclaration intéressée. Selon le juge et auteur E.G.

Ewaschuk : As a general rule, a witness may not "repeat in court a statement he made out-of-court or in prior court proceedings" and an accused may not elicit from a witness testifying in court — not even from a co-accused — a statement the accused made out-of-court to the witness or "a statement the accused testified to in prior court proceedings". The former rule is termed the rule against prior consistent statements and the latter rule is termed the rule against self-serving evidence, both of which are ancillary to the hearsay rule.

The above exclusionary rules have also been termed the "rules against narrative and self-confirmation". [Italics from the original; references omitted]

[ 29 ] In their Traité général de preuve et de procédure pénales , Vauclair and Desjardins provide a similar perspective: 1422. En principe, les témoins doivent venir rendre compte devant la cour des faits dont ils ont personnellement eu connaissance. Les déclarations extrajudiciaires des témoins, comme leurs déclarations judiciaires qui, à cet égard, sont soumises aux mêmes règles, ne peuvent donc être ni admises ni utilisées au procès parce qu’elles constituent du ouï-dire, sauf exception à ce principe.

On ne peut non plus mettre en preuve le fait qu’un témoin a déjà fait une déclaration compatible avec son témoignage puisqu’il s’agit d’une preuve préconstituée (self-serving evidence) . Dans l’arrêt Ellard , la Cour suprême a indiqué que « [l]e raisonnement justifiant l’exclusion de ces déclarations est que la répétition ne renforce pas la valeur ou la véracité d’un témoignage et ne doit pas être considérée comme telle. Une déclaration antérieure compatible ne peut donc pas devenir une preuve confirmatoire du témoignage […] ». [13] [Italics from the original; references omitted; emphasis added] [ 30 ] In R. v.

Béland , the majority of the Supreme Court defined oath-helping as evidence introduced “solely for the purpose of bolstering a witness’s credibility”. [14] In R. v. B. (F.F.) , Justice Iacobucci indicated that oath-helping evidence “would tend to prove the truthfulness of the witness, rather than the truth of the witness’ statements”. [15] [ 31 ] More recently, Martin, J.A., on behalf of the majority of the Court of Appeal of Alberta, outlined the main characteristics of oath- helping evidence.

The following excerpt, which is cited by the respondent, is particularly insightful in light of the appellant’s submissions: [90] First, evidence is bolstering if a reasonable fact-finder would or might consider the contested proof when assessing the credibility of a proponent’s witness. Second, the proof must make it more likely that the fact-finder would conclude the witness is credible. Third, the proof does not increase the likelihood that a fact in issue does or does not exist. It focuses on the personal characteristics of the witness whose credibility is enhanced.

Put another way, the impugned proof does not elevate the likelihood that a fact testified to by the witness (whose credibility benefits from the impugned evidence) exists . [16] [References omitted; emphasis added] [ 32 ] Finally, in R. v.

Muchikekwanape , Steel, J.A., for the Court of Appeal of Manitoba, enumerated six cases in which photographs are admissible into evidence: 1) to illustrate the facts on which experts base their opinion and to illustrate the steps by which they arrive at their opinions; 2) to illustrate minutiae of objects described in the testimony of a witness, i.e.; to show the nature and the extent of the wounds ; 3) to corroborate testimony and provide a picture of the evidence and to assist [the] jury in determining its accuracy and weight ; 4) to link the injuries of the deceased to the murder weapon; 5) to provide assistance as to the issues of intent and as to whether the murder was planned and deliberate; 6) to help the jury determine the truth of the theories put forth by the crown or defense, e.g.; as to which accused committed the crime; as to whether the crime was committed in self-defence. [17] [ Emphasis added] [ 33 ] In light of the foregoing, the trial judge did not err in admitting exhibits P-8 and P-9 into evidence.

Moreover, the Crown’s assessment that the essence of the appellant’s submissions pertains to the probative value of the photographs rather than their admissibility is correct, especially as they were admitted into evidence by consent. [ 34 ] The appellant appears to be challenging the admissibility of the exhibits because he disagrees with the trial judge’s assessment of them. These are two completely different matters: while the admissibility of the evidence might be a question of law, its assessment is a question of fact. [ 35 ] The appellant suggests an alternative

interpretation of the evidence, arguing in his factum that his “explanation for the missing page from the Koran was perfectly feasible”. Nevertheless, the appellant has failed to demonstrate a palpable and overriding error in that regard. [ 36 ] In any event, exhibits P-8 and P-9 were admissible into evidence. The rule against self-serving evidence governs past statements from witnesses, mostly from the accused; an extension of the rule to photographs introduced by the Crown is unwarranted. With respect to the rule against oath-helping evidence, to paraphrase Iacobucci, J. in R. v.

B. (F.F.) , these photographs tend to prove “the truth of the witness’ statements” rather than “the truthfulness of the witness”. [18] In other words, the photographs were not introduced to enhance the complainant’s credibility, but rather, either “ to show the nature and the extent of [her] wounds ” or “ to corroborate [her] testimony ”. Both are valid grounds identified in Muchikekwanape . [19] [ 37 ] This ground of appeal therefore fails. Did the trial judge err in his application of R. v. W.(D.) in various ways? [ 38 ] The appellant divides this ground of appeal into three sub-questions.

Essentially, he invites this Court, from different

perspectives, to reassess his testimony and that of the complainant. In each case, the appellant has failed to demonstrate that the trial judge committed reversible error requiring the intervention of the Court. [ 39 ] The appellant claims that the judge misapplied the principles set out in R. v. W.(R.) by allowing an exaggeration from the complainant on a non-peripheral issue, namely the frequency with which the appellant sexually assaulted her, thereby committing an error of law. [ 40 ] In R. v.

W.(R.) , McLachlin, J. (as she then was) delivered the unanimous reasons for judgment of the Supreme Court of Canada, in which she wrote: In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness.

Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying . [20] [Emphasis added] En règle générale, lorsqu’un adulte témoigne relativement à des événements survenus dans son enfance, il faut évaluer sa crédibilité en fonction des critères applicables aux témoins adultes. Toutefois, pour ce qui est de la

partie de son témoignage qui porte sur les évènements survenus dans son enfance, s’il y a des incohérences, surtout en ce qui concerne des questions connexes comme le moment ou le lieu, on devrait prendre en considération l’âge du témoin au moment des évènements en question . [ 41 ] The peripheral matters thus identified – namely, the time and location of events – are not exhaustive.

Even if that were the case, the frequency of sexual assaults as perceived by a child would necessarily be related to the latter’s perception of time. [ 42 ] Furthermore, many appellate jurisdictions, [21] including this Court, [22] have considered the perceived frequency of assaults as a peripheral matter when assessing the credibility of adults testifying as to events which occurred during childhood. [ 43 ] Finally, as the Crown points out, the discrepancy between the complainant’s testimony and the trial judge’s conclusion is insignificant.

In essence, the complainant testified that she was assaulted repeatedly over several years, while the judge held that she was assaulted “very often[,] [p]robably more than once a week”, [23] as opposed to once or a handful of times. [ 44 ] As a result, this argument fails. [ 45 ] The appellant further contends that the judge improperly subjected his testimony to a more stringent level of scrutiny than that of the complainant. This argument is unmeritorious.

In addition, the appellant’s written submissions in this respect are tinted with stereotypes about the behaviour of sexual assault victims, which courts cannot entertain. [24] [ 46 ] In a recent judgment, Healy, J.A., delivered the following remarks on behalf of the Court: [19] This is a classic case concerning the principles stated in W.(D.) and developed in subsequent jurisprudence because it turns on the assessment of contradictions between the evidence given by the complainant and the appellant. Such cases cannot, and must not, be resolved by a choice between conflicting versions.

They demand an evaluation of the evidence as a whole to support a conclusion either that the presumption of innocence must prevail or that the prosecution has proved the guilt of the accused beyond reasonable doubt. […] [20] The application of this precept does not oblige the judge to scrutinise every fact or argument. Nor does it oblige the judge to examine every fact or argument that is addressed with equal intensity or catechistic formalism.

The essential question, notably on appeal, is whether the applicable principles were observed and applied in substance . […] [27] Third, there is no basis for the suggestion that the judge’s reasons do not adequately explain the grounds for rejecting the appellant’s testimony or the grounds for a finding of guilt or more generally that the reasons do not adequately explain the basis for the judge’s final decision.

The judge explains that despite inconsistencies and gaps in the complainant’s evidence it retained a consistent core of credibility and reliability but that the inconsistencies and gaps in the appellant’s evidence reduced its probative value to a point at which it could not be believed.

This is the province of a trial judge and this court will not intervene unless the appellant can demonstrate palpable and overriding error that affected the result . [25] [References omitted; emphasis added] [ 47 ] This Court has held that a mere decision by the trial judge on a matter of credibility is insufficient to demonstrate the application of a double standard in the assessment of the testimony. [26] It follows that there is no palpable and overriding error in the trial judge’s assessment and rejection of the appellant’s testimony. [ 48 ] Finally, the appellant submits that the judge erred by holding that he had a personal interest to deny the accusations.

At paragraph [101], the judge wrote:

[101] It must also be emphasized that the accused lost contact with his children Y, Z, A B and C. This situation follows the present accusations. He has a personal interest to deny. [27] [ 49 ] In Laboucan , which is cited by the respondent, the Supreme Court unanimously held that comments about an accused’s motive to lie must be considered contextually. [28] In the case at bar, considering the trial judgment as a whole, it appears that the judge rejected the appellant’s version for a multitude of reasons beyond that of his interest to deny the accusations.

Most prominently among these are his lack of direct answers [29] and conviction [30] in his testimony. The trial judge’s comment about the appellant’s interest to deny the accusations constitutes an obiter dictum and therefore is inconsequential to the outcome of the appeal. [ 50 ] This argument also fails. Conclusion [ 51 ] Once again, the words of Healy, J.A. in Pierre v. R. are relevant to this appeal: [28] The appellant invites this court to retry on each point in appeal essential aspects of the trial.

It is not for the Court of Appeal to undertake such an exercise and to substitute its view for that of the trial judge. That duty of deference raises a high barrier on appeal. It precludes appellate intervention unless he can demonstrate (which he did not) that the inferences and conclusions of the trial judge are clearly wrong, unsupported by the evidence, or otherwise unreasonable and had a material bearing on the outcome. [31] [References omitted] [ 52 ] And so it is with this appeal. The appellant has failed to demonstrate a reversible error that would require the Court’s intervention.

FOR THESE REASONS, THE COURT: [ 53 ] Dismisses the appeal; [ 54 ] ORDERS the appellant to surrender to prison authorities before November 24, 2021 at 11:00 a.m. FRANÇOIS PELLETIER, J.A. ALLAN R. HILTON, J.A. GUY GAGNON, J.A. Mtre Benjamin Wilner SHADLEY BIEN-AIMÉ Mtre Jordan Trevick For the Appellant Mtre Richard Audet DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the Respondent Date of hearing: September 13, 2021