r v. M. P., 2024 QCCQ 154

R. c. M.P. 2024 QCCQ 154 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Criminal and Penal Division No: 500-01-201635-205 DATE: January 24, 2024 ______________________________________________________________________ PRESIDING: THE HONOURABLE CHRISTIAN M. TREMBLAY, J.C.Q. ______________________________________________________________________ HIS MAJESTY THE KING Prosecutor v. M. P. Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Restriction on Publication By Court Order pursuant to

section 486.4 (2.1) of the Criminal Code , any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way . OVERVIEW [ 1 ] The accused faces the following charges: 1. On or about March 3, 2016, in Town A, district of Montréal in committing an assault on X, did carry/use/threaten to use a weapon, committing thereby the indictable offence provided by

section 267a) of the Criminal Code . 2. Between November 18, 1996, and March 2, 2016, in Town A, district of Montréal in committing an assault on X, did carry/use/threaten to use a weapon, committing thereby the indictable offence provided by

section 267a) of the Criminal Code . 3. Between November 18, 1996, and March 2, 2016, in Town A, district of Montréal in committing an assault on X, did cause bodily harm to the said person, committing thereby the indictable offence provided by

section 267b) of the Criminal Code . 4. Between November 18, 2006, and November 17, 2007, in Town A, district of Montréal, did commit a sexual assault on X, committing thereby the indictable offence provided by section 271(1)

a) of the Criminal Code . 5. Between March 3, 2016, and October 30, 2018, in Town A, district of Montréal, did act toward X, knowing that she is harassed or being reckless as to whether she is harassed, did engage in a prohibited conduct referred to in subsection 264(2) of the Criminal Code , causing X to reasonably fear for her safety or the safety of anyone known to her, committing thereby the indictable offence provided by section 264(1)

(3) a) of the Criminal Code . [ 2 ] The complainant is his daughter X. [ 3 ] Counts 2 and 3 concern the alleged mistreatment of X from her childhood until her departure from the family home. [ 4 ] Count 4 concerns two events during which the accused allegedly sexually assaulted his daughter when she was about 14 years old. [ 5 ] Count 1 concerns the event that caused the complainant to leave her parents’ home. She was 23 at the time. [ 6 ] Finally, count 5 concerns the accused’s attempts to recontact the complainant. [ 7 ] It is in this order that the Court intends to examine the facts.

SUMMARY OF THE EVIDENCE

A) Counts 2 and 3: the alleged mistreatment [ 8 ] According to the complainant, her father had been physically correcting her since she was five or six years old. He would hit her with his hands, and when she was older, he would use objects to correct her, such as a golf club, a cricket bat, a steel rod or a broom.

He told her he was going to beat her with it. [ 9 ] He would beat her everywhere he could. Sometimes, he punched her on the head or he would use a steel rod and bash it over her head. Sometimes, he broke a wooden broom on her back. [ 10 ] When she would fall on the floor, he would kick her. She would feel pain in her stomach and her chest would hurt from being kicked in the breasts. [ 11 ] When he used objects to beat her, she had injuries; defensive wounds on her wrists or on her hands. Her fingers were swollen from trying to protect herself. [ 12 ] Once, he broke a broom on her leg and there was a gash.

She was bleeding. [ 13 ] She remembers a particular incident when she was playing music in her bedroom. Mr. P. was annoyed because it was too loud. So, he asked her to turn the volume down, but she must not have done that fast enough because he came into her bedroom and he punched her on the head. She fell off her chair and was shocked because it happened so fast. He came down on her again with his fist and she tried to cover her head with her arms. So, he started kicking her.

She does not remember if she had injuries from that event. [ 14 ] The complainant recalls another incident when her father was on top of her in the bed. He was wearing only a bath towel. He hit her and strangled her. Her mother had to intervene to stop the accused. [ 15 ] From childhood to adolescence, violence was a daily occurrence. Violence was always his first response with her. He would become angry very quickly.

When older, she was beaten at least once a week. [1] [ 16 ] She remembers the various injuries she sustained after being beaten: swollen fingers and wrists; a gash on one leg; blood in her mouth; pain in the thighs and back; a bruise on one thigh; a swollen face. She never consulted a doctor or a nurse for these wounds. She never complained to anyone. For her, the violence at home was normal. [ 17 ] Mr. P. denies beating his daughter. [ 18 ] When his daughter was in elementary school, he worked the night shift. Later, he held two jobs that took him away from home from 07:00 a.m. to 01:00 a.m. the next morning.

As a machine operator, he worked seven days a week and as a dishwasher, he worked five days a week. [ 19 ] He always had a good relationship with his daughter. [ 20 ] When cross-examined, Mr. P. stated that before she was 12, he had no problem with his daughter. If X caused trouble, he would take a broom and hit the sofa with it to scare her off. He never threatened to hit her.

However, after being confronted with the video statement he made to the police on February 24, 2020, he admitted that after hitting the sofa with the broom, he told his children: "If you don’t listen to me, I will hit you." [2] [ 21 ] The children then calmed down. [ 22 ] He does not recall if it happened more than once. [ 23 ] When it happened, he was not angry. But when confronted with his statement to the police, he finally admitted that he was angry when he hit the sofa. His daughter was about seven or eight years old the last time he hit the sofa with a broom.

B) Count 4: the alleged sexual assault [ 24 ] When she was 14, her father washed her hair because she had lice. He told her he did not trust her to apply the product properly or effectively. [ 25 ] She was instructed to get into the bathtub and take her clothes off. She was sitting on a stool. [ 26 ] After washing her hair, he insisted on washing her armpits, then touched her breasts. He touched her nipples. She was scared and she froze. She did not know what to do. [ 27 ] He told her he was going to touch her sex and he slipped two fingers into her vagina. She did not understand what was happening.

He started moving around. He laughed and told her she was different from her mother, then asked her to promise not to tell her mother. He repeated himself. She said it was okay. [ 28 ] As soon as she got out of the bathroom, still in her towel, she went to see her mother who was in the kitchen, and she told her that her father had touched her vagina and had asked her to keep it a secret. Her mother said she was a whore. She reproached her she should have known better. Her mother then started screaming at Mr.

P.. [ 29 ] One week later, her mother instructed her to take another bath with the medicated shampoo and that her father would be giving her the bath again. She instructed her to wear a bra. [ 30 ] The complainant was angry that she was forced to take a bath while her father washed her again, but she obeyed. [ 31 ] She sat on a stool in the bathtub with her bra on and she covered her breasts with her hands. She also closed her legs. [ 32 ] When Mr. P. arrived in the bathroom, he was upset that she had a bra on. He told her to take it off because he did not want to get it wet, but she refused.

[ 33 ] After Mr. P. had washed her hair, he tried to yank her arm up to get to her armpit, but she kept her hands across her breasts. [ 34 ] Mr. P. was upset that her legs were shut closed. He kept saying that he had to wash her so that she would be clean. [ 35 ] He insisted on having access to her breasts repeating that he had to clean her, and finally managed to slip a hand inside her bra. [ 36 ] He touched her thighs and tried to open her legs. He told her he was going to clean her, but she kept her legs closed shut. He did not have access to her vagina this time. [ 37 ] For his part, Mr.

P. admits washing his daughter’s hair with a shampoo for lice, but she was about eight or nine years old, and he limited himself to washing her hair. Both times he proceeded in the same way. [ 38 ] The first time, her daughter was completely naked and the second time, she was wearing a T-shirt, but he does not know why. [ 39 ] He said that he did not look at her, except for her hair.

C) Count 1: the alleged assault with a weapon [ 40 ] On the evening of March 3, 2016, after X returned from a therapy session, a conflict broke out between her and her parents over the payment of her university tuition. The payment was due back in January. It was not the first time they had argued about that. [ 41 ] They were in the living room and they were screaming at each other. At some point, X lost her temper and called her father a "motherfucker". Mr. P. became enraged and he got up with a knife in his hand. He told her dare to repeat that and he raised the knife above his head. He rushed to her.

Her brother who was behind her pulled her back. [ 42 ] Her brother wanted to call the police, but she refused, preferring to do it herself. [ 43 ] After she called the police, her father told her: "The house is now closed for you." He took down all the pictures of her. He was screaming. She put a winter coat on and ran downstairs. [ 44 ] When the police arrived, she collapsed on the floor. She was crying and telling them that she had done something awful by calling them, because she destroyed her family. [ 45 ] After making a statement at the police station, she was taken at a women’s shelter.

She never returned home except to retrieve personal effects. [ 46 ] Before the events of March 3, the complainant had already left the family home at the encouragement of her therapist. [ 47 ] For his part, Mr. P. affirms that there was no dispute on March 3, 2016. His daughter left home because he was unable to pay for school fees. It was the first time he had had a disagreement with his daughter on this subject. He always paid her school fees. [ 48 ] On his return from work, he learned that his daughter had asked her mother for money to pay her school fees. Her mother refused, as they did not have the money.

He had already warned his daughter not to make this kind of request at the last minute. [ 49 ] Then his daughter suggested borrowing money from a family friend, but this proved to be impossible. Afterwards his daughter got angry and insulted him. She told him he was a "motherfucker". She repeated it three or four times. He became upset with her and asked her not to use this word toward him. [ 50 ] Then she took her phone and went to her bedroom. He did not know she had called the police. [ 51 ] He went to the kitchen to fetch an orange and a knife and returned to the living room to eat.

When the police officers arrived, they saw the knife in his hand. His daughter made a complaint to the police that he tried to kill her with the knife. After he explained to the police that he never tried to kill her, but that he wanted to use the knife to cut the orange, the police decided not to arrest him. [ 52 ] After investigation, the police left with his daughter.

D) Count 5: the alleged criminal harassment [ 53 ] According to the complainant’s version, after she left home, her parents tried to reach her repeatedly. They called her and also left messages urging her to come home. For the first few weeks, she listened to all the calls, but since it was so intense and the messages were upsetting her, she decided to change her phone number. She registered two messages, one on April 23, 2017, and the other on May 31, 2017 (exhibits P-3 and P-4). [ 54 ] Once she spoke with her father about her brother who had disappeared.

He pleaded with her to come back to the household to help with her brother’s issues. At this occasion, she made it clear that she was never coming back. [ 55 ] About six months after leaving their household, X wrote a letter to her parents about her intention not to come back home and mention they had to stop contacting her. She gave the letter to her brother and asked him to translate it into gujarati. [ 56 ] From 2016 to 2018, her father attempted to communicate with her on Facebook, but she did not respond (exhibit P-2). Most of the messages were begging her to come back home.

Following March 3, 2016, she blocked her father on Facebook, but she kept him unblocked for intermittent periods because of her concern for her brother (admission number 5). She blocked her father’s account because she was incessantly harassed by messages. [ 57 ] Every time her father tried to contact her, the complainant was frightened, and she did not feel safe. She was afraid her father

would find her. The benefits of her therapy and her personal efforts to cope were sabotaged by her father’s communications. [ 58 ] In 2018, she went to the police station to complain about her father’s harassment after being told by her best friend that she and her family were contacted by Mr. P. (exhibit P-6). The complainant then had the feeling that this was never going to stop. She needed to do something. [ 59 ] Mr. P. admits to having tried to communicate several times with his daughter via her Facebook site. He asked her to come home.

She never answered his messages. [ 60 ] He left his daughter messages, but she never returned his phone calls except once to discuss his son’s problems. [ 61 ] He also admits having contacted the father of one of his daughter’s friends to obtain his daughter’s telephone number (exhibit P-6).

E) H. S.’s testimony [ 62 ] H. S. studied with X at Concordia University in 2014. They were friends. [ 63 ] Although she did not give her any details, X had already told her that she did not have a good relationship with her father. [3] [ 64 ] X once asked her to come and get her from her house because she was scared. It was at the end of 2014 or beginning of 2015. Mrs. S. went to X’s residence with her parents to pick her up. [ 65 ] Also it had happened from five to ten times that X had stayed with her before she moved to a shelter. ANALYSIS

A) Submissions of the parties [ 66 ] For Mr. P.’s lawyer, this case hinges on the credibility of both the complainant and the accused.

She invites the Tribunal to follow the teachings of the Supreme Court in W.(D.) : First, if you believe the evidence of the accused, obviously you must acquit; Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit; Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on this basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [4] [ 67 ] For various reasons, Me Galarneau considers the complainant’s testimony to be neither reliable nor credible.

For each of the counts, the evidence raises a reasonable doubt. [ 68 ] In order to avoid repetition, when we examine the evidence for each of the counts, we will then set out the main grievances put forward by the defence. [ 69 ] For his part, the Crown insists that the Tribunal take into account that the events took place several years ago when the complainant was a child. The complainant testified from a child’s perspective. [ 70 ] Unlike the accused’s testimony, the complainant’s testimony was reliable and credible. [ 71 ] We will study the Crown’s arguments in greater detail when we examine the evidence.

B) Basic principles [ 72 ] My former colleague, Patrick Healy J., now on the Bench of the Quebec Court of Appeal, summarized the key guiding principles regarding the presumption of innocence contained in

section 11(

d) of The Canadian Charter of Rights and Freedoms ( the Charter ) in R. c . Zoumpoulias : [3] The presumption of innocence ensures that no person may be found guilty unless the offence charged is proved beyond reasonable doubt. Whether a reasonable doubt arises from the prosecution evidence, evidence led by the defence or an assessment of all of the evidence taken together, the accused must be acquitted if there remains a reasonable doubt on the whole of the evidence at the end of the case.

In this respect, the credibility of a witness is of central importance because if the testimony of a witness raises a reasonable doubt as to its reliability, it might as well raise a reasonable doubt with respect to an essential element of the offence or a matter of defence. If there is a conflict in the evidence, the trier of fact is not obliged to make a choice in favour of one version or another.

This might well be the result in a given case if the judge is led to this conclusion by the force of the evidence, but conclusions of fact must always reflect an examination and evaluation of the whole of the evidence. [4] The Supreme Court has given guidance on these principles in W.(D.) The Court has reiterated that the presumption of innocence and the assessment of evidence, including the credibility of witnesses, are not matters of form but of substance.

Whether a judge follows textually and schematically the criteria set out in W.(D.) or assesses them in some other manner, the presumption of innocence requires that there be a careful evaluation of all the evidence before the court determines whether the charge is proved or whether there remains a reasonable doubt. [5] W.(D.) does not impose a mechanical formula to be followed in the evaluation of evidence. The Supreme Court has repeated this caution on several occasions. This jurisprudence reminds us that the presumption of innocence requires the prosecution to prove the

guilt of the accused beyond reasonable doubt. It lies with the trier of fact at the end of the trial to examine all of the evidence presented before the court and to evaluate it so as to determine whether the prosecution has discharged its burden. The accused has nothing to prove and the prosecution is not required to prove guilt beyond all possible doubt but beyond all reasonable doubt. If there remains a reasonable doubt at the end of the trial and after a careful examination of all of the evidence, including questions of credibility, the accused must be acquitted.

It does not matter whether a reasonable doubt touches a matter of defence or an element of the offence. If a reasonable doubt subsists after an assessment of all the evidence, an acquittal is required. [5] [references omitted]

C) The essential elements of the offences Counts 1, 2 and 3: assault with a weapon and assault causing bodily harm [ 73 ]

Section 267a) and

b) Cr. C. stipulates: 267 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on

summary conviction who, in committing an assault, (

a) carries, uses or threatens to use a weapon or an imitation thereof, (

b) causes bodily harm to the complainant, or […] [ 74 ] Assault is defined at section 265(1) Cr. C.: 265

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or (

c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs. [ 75 ] A weapon means (section 2 Cr. C.): […] any thing used, designed to be used or intended for use (

a) in causing death or injury to any person, or (

b) for the purpose of threatening or intimidating any person and, without restricting the generality of the foregoing, includes a firearm. Count 4: sexual assault [ 76 ] As set out by the Supreme Court of Canada in R. v. Ewanchuk , the external circumstances of sexual assault are: i. Touching; ii. Sexual nature; iii. Absence of consent. [6] The mental element in sexual assault has two components: i. The intention to touch; and ii. Knowledge, or recklessness of, or wilful blindness toward lack of consent. [7] Count 5: criminal harassment [ 77 ] Section 264(1) and

(2) b) Cr. C. states: 264

(1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

(2) The conduct mentioned in subsection (1) consists of (a) […] (

b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;

[…]

D) The credibility and the reliability of witnesses [ 78 ] To provide a basis for conviction or proof beyond a reasonable doubt, testimonial evidence must be both credible and reliable. [ 79 ] The distinction between credibility and reliability has been addressed by the Ontario Court of Appeal in R. v . Morrissey : The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue . When one is concerned with a witness's veracity, one speaks of the witness's credibility.

When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point.

The evidence of a credible, that is, honest witness, may, however, still be unreliable . [8] [emphasis added] [ 80 ] The credibility of a witness depends on his sincerity, that is, a willingness to tell the truth as he believes it to be true. [9] [ 81 ] The reliability of the witness’s testimony depends on the accuracy (exactitude, precision) of the testimony and the witness’s ability to accurately observe, recall and recount the events in issue. [10] [ 82 ] The complainant’s credibility cannot be affected in any way because she waited several years before filing a complaint to the police (section 275 Cr.

C.). [ 83 ] It is also important to recall that the complainant’s testimony alone may lead to a guilty verdict. Corroboration is not necessary (section 274 Cr. C.). [ 84 ] Testimony is assessed globally. Never in a vacuum. [11] [ 85 ] When an adult testifies about events that occurred in his or her childhood, credibility is assessed according to the criteria applicable to an adult witness.

Where there are inconsistencies, the judge must take into account the age of the witness at the time of the events. [12] [ 86 ] Contradictions and inconsistencies over details that are not important to a child must be taken into account by the judge. [13]

E) Assessing the credibility and reliability of testimonials [ 87 ] Let’s start with the accused’s testimony. [ 88 ] Generally speaking, Mr. P.’s testimony lacked sincerity. The accused did not always answer the questions asked. Sometimes he was off-topic. It seemed as if he was trying to tell a story rather than answering the questions honestly. He had difficulty giving simple answers to clear questions. He contradicted himself several times. His answers were often evasive.

On cross-examination, rather than answering questions, he tries to justify himself. [ 89 ] When he refers to his two jobs which kept him away from home, he does not specify the time or how long he worked two jobs. This version was intended to show that he was hardly ever at home when his daughter claimed to have been beaten by him. A kind of alibi. [ 90 ] He suggested that he never had a problem with his daughter’s behaviour, only to admit that he sometimes had to hit the couch with a broom to scare the children when they were not listening.

He said it was after his daughter was 12, but he finally said she was 7 or 8 years old. Ultimately, he recognized that sometimes his daughter would create trouble. This justified his action. [ 91 ] When asked if this had happened more than once, he could not remember. A surprising response when he suggested that this was generally the way he made the children obey. [ 92 ] He eventually admitted he was angry after denying it. [ 93 ] When asked about the lice treatment, he said it is a sin to see his daughter naked. Yet she was completely naked when he administered the first treatment for lice.

It was not until the second treatment that she wore a T-shirt, he said. [ 94 ] Before March 2016, he affirmed he never had a problem with his daughter. However, she claims to have taken refuge in Mrs. S.’s home on one occasion, which Mrs. S. confirms. Why does he try to hide the fact that there have been occasional crises involving his daughter? [ 95 ] His account of the March 3 rd incident is unbelievable. How could X have told the police that he had tried to kill her with a knife after she had fled to her bedroom to call the police?

She could not have known that her father had a knife at the time unless he had it in his hand during the argument. [ 96 ] During the examination in chief, he swore he had never seen his daughter after March 3, 2016, but during cross-examination, he admitted she came home on four or five occasions to get her things. Another contradiction. [ 97 ] Throughout the accused’s testimony, the Tribunal had the impression he was trying to hide the truth. He was closed and defensive. He was concerned about his image. [ 98 ] Let’s move on to the complainant’s testimony.

[ 99 ] Concerning counts 2, 3 and 4, the Tribunal must bear in mind that X is an adult who is testifying about events that took place many years ago when she was a child. [ 100 ] Overall, the complainant’s story was coherent and detailed. She referred to particular events that have marked her. She seemed very sincere, and her testimony was sober and devoid of animosity. She was sometimes overcome by emotion when certain memories were evoked. Cross-examination did not shake her. She maintained her version of events. She did not hesitate to correct her testimony when necessary. She showed no interest in lying.

She was not evasive, although sometimes defensive, which is not unusual. When she could not remember a particular fact, she admitted it without hesitation. [ 101 ] Mr. P.’s lawyer doubts the complainant’s version that she had injuries after being beaten, as the school staff would have noticed. The Court cannot accept this argument as it is possible that a teacher realized that something was wrong with X and did not say anything, or that the wounds could be hidden by the clothes X was wearing. We just do not know.

We also have to bear in mind that she did not always have visible wounds after being beaten. [ 102 ] The accused suggests that she made it all up. She took revenge because her father did not pay her school fees. She did not. The events of March 3, 2016, caused her to call the police for her safety. However, she refused to let the police go any further because she did not want to hurt her family. If she had wanted revenge, it would have been a great opportunity.

She waited more than two years after leaving home to file a complaint because her father was using third parties to continue his harassment. [ 103 ] If she had wanted revenge, she would have filed a complaint long before February 2020. Already in the winter of 2014-15, X had to take refuge at a friend’s house because of the bad relationship she said she had with her father. So this was not a new situation that arose after March 3, 2016. [ 104 ] With regard to the violence to which she was subjected during her childhood (counts 2 and 3), she was sufficiently precise about the accused’s behaviour.

He even corroborated that he used a broom to frighten the children. The complainant recalls the numerous consequences she suffered after being beaten by her father. She gave a very good description of what he did and the objects he used to beat her. She also explained why she never filed a complaint. It was because she did not know that her father’s actions were reprehensible. [ 105 ] She may have sometimes exaggerated the frequency of her father’s interventions, or the degree of violence used, but this does not affect the essence of her account. We must not forget she is recounting her childhood memories.

What the Court notes is that she was severely "corrected" by the accused on a regular basis when she was young. He used objects to hit her, such as a broom. It was his way of educating his daughter. The "corrections" were less frequent when she got older, as she affirmed. We must not forget that the events took place over a very long period of time. [ 106 ] Regarding the actions taken to treat her hair for lice, the complainant is able to tell us that the incidents occurred when she was 14 because she began menstruating. She remembers the special smell of the shampoo.

She is precise about the actions he took and her reaction. These were two specific incidents that did not recur. So she cannot confuse them with other events. [ 107 ] The accused’s lawyer questions the complainant’s credibility because she does not remember the length of her hair at the time of the incidents, whereas her client does. According to him, they were as long as in photos D-3 and D-4 when his daughter was eight or nine years old. [ 108 ] This is an unimportant peripheral issue. It was the accused who said that she had long hair to justify the complainant’s age at the time of the incidents.

It’s true that at the age of 12 her hair was shorter (photo D-6), but by the end of the school year, her hair was quite long (photos D-1 and D-4).

No photographs of the complainant were produced when she was 14. [ 109 ] The fact that she cannot remember whether the incidents occurred during the week or on the weekend is of little importance. [ 110 ] She clearly remembers trying to resist the second time. [ 111 ] The accused did not deny that he had made her promise not to tell her mother, nor did he deny that the complainant had complained to her mother about what had happened during the first incident. [ 112 ] Whether she was mistaken in knowing that the bathtub was not adjacent to the wall is of little importance. She readily admitted her mistake.

The drawing she made jogged her memory. This is a fairly minor detail. [ 113 ] It also does not matter whether her father was on her right or left when he washed her hair. She does not remember, and it does not matter. [ 114 ] Now a few comments about the March 3, 2016, incident. [ 115 ] Her account of the facts is plausible. She was submissive, but on March 3, 2016, she had a strong reaction. Her reaction can be explained by her father’s behaviour toward her.

School was very important for her and it was not the first time she had to insist that her parents pay her school fees. [ 116 ] The complainant is not trying to look good in this unfortunate dispute. She admits insulting her father. [ 117 ] She did not contradict herself. [ 118 ] Although the accused does not admit to having attacked her with a knife, he does admit to having had a knife in his hand at a certain moment, which he situates while his daughter was in her bedroom. [ 119 ] The fact that she cannot remember whether her father was sitting or standing during the argument, or how far apart they were,

are secondary details in the eyes of the Court. [ 120 ] Finally, a few comments about her testimony on harassment. [ 121 ] Her testimony is partly corroborated by that of the accused, as well as various Facebook messages (exhibit P-2), the recording of the phone calls (exhibit P-3) and the photograph of the message left for A. B.. (exhibit P-6). [ 122 ] As for the numerous telephone calls, she acknowledges that it is difficult to quantify those initiated by the accused, as her mother actively participated in these calls. This demonstrates the complainant’s transparency. [ 123 ] With regard to Mrs.

S.’s testimony, the defence does not question her credibility. Mrs. S. testified without bias. She recounted the facts in a sober and frank manner.

F) Analysis of the evidence with regard to the alleged offences Counts 2 and 3: assault with a weapon and assault causing bodily harm [ 124 ] The accused admits that he threatened his daughter with force by hitting the sofa with a broom and saying he would use it if she did not obey. The broom, having been used to threaten or intimidate the complainant, can therefore be considered a weapon within the meaning of the definition of assault with a weapon (section 2 Cr. C.). [ 125 ] At no time did the accused invoke the defence offered by

section 43 Cr. C.: 43 Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances. [ 126 ] But the accused did not just threaten her, he also hit her violently, several times, using various objects. This was his method of correcting his daughter. Of course, she was not in a position to consent to such punishment. This was an assault with a weapon (sections 265(1)

a) and 267a) Cr. C.). [ 127 ] X testified that she sometimes had bruises, a swollen face, blood in her mouth or swollen fingers, and sometimes wounds on her hands that prevented her from holding her pencil properly at school. [ 128 ] Some of these injuries may be considered transient or trifling in nature, but having blood in her mouth, numerous bruises and fingers so swollen she could not hold a pencil properly at school all meet the definition of a bodily harm (section 2 Cr. C.). [ 129 ] The evidence here leaves no room for reasonable doubt.

The accused himself acknowledges that he committed assault with a weapon. As for the abuse of the complainant with various objects, the versions are diametrically opposed. Either the accused hit her with an object, or he never touched her at all. There is no in between. However, the Tribunal finds that the complainant's version reflects what happened to her as a child. [ 130 ] The evidence shows beyond a reasonable doubt that the accused is guilty of counts 2 and 3.

Count 4: sexual assault [ 131 ] The evidence considered by the Court shows that when his daughter was 14 years old, the accused voluntarily touched her breasts both times he gave her a shampoo to eliminate lice. [ 132 ] The first time the complainant was surprised by her father’s behaviour. Of course there was no consent for this unexpected act, since the accused abused his authority (section 265(3)

d) Cr. C.). [ 133 ] The second time, it’s very clear that the complainant never consented. She told him she did not want him to touch her there, and she tried to resist in vain. [ 134 ] The first time, he also inserted his fingers into his daughter’s vagina. [ 135 ] The touching had nothing to do with a lice treatment. The sexual nature of the touching is clear from the context and from what the accused said to his daughter. [ 136 ] It is also very clear that the accused knew what he was doing.

The touching was intentional, not accidental. [ 137 ] All the essential elements of the offence have been proven. [ 138 ] Nevertheless, is there any possibility that events could have unfolded as the accused suggests? The answer can only be in the negative, as the complainant’s version excludes that of the accused. The actions described by the complainant are incompatible with those put forward by the accused. Here again, the versions are diametrically opposed. Either he touched her, or he never touched her. There is no in between. However, the Court accepts the complainant’s version.

There was touching of a sexual nature. [ 139 ] The evidence leaves no room for reasonable doubt. The accused is guilty of count 4. Count 1: assault with a weapon [ 140 ] The complainant’s version shows that on March 3, 2016, her father tried to attack her or threatened to attack her while he had a

knife in his hand. This is an assault with a weapon (section 265(1)

b) and 267a) Cr. C.). [ 141 ] Once again, the two versions are mutually exclusive. There is no in between. As for the presence of the knife at the time of the argument, and then of the assault, the accused asserts that this is not the case. He fetched it from the kitchen after his daughter had fled to her bedroom to call the police. This assertion, although not believed by the Court, cannot nevertheless raise a reasonable doubt, as the fact is subsequent to the assault committed. [ 142 ] The accused is guilty on count 1. Count 5: criminal harassment [ 143 ] In this case, it is the repeated communications to the complainant that constitutes one of the acts prohibited by paragraph 2 of

section 264. [ 144 ] Some phone calls are attributable to the accused, but it’s difficult to determine their significance, since the complainant’s mother also made several of them. As for the numerous Facebook messages (exhibit P-2), they came from the accused, as did the message to Mrs. B.’s father (exhibit P-6). [ 145 ] The fact that the complainant felt harassed and fearful for her safety is not a real issue here. Although it was a subjective fear, it was real. But was this fear reasonable in the circumstances?

The situation must be examined as a reasonable person in the complainant’s position would. [14] [ 146 ] Although the content of the messages does not appear threatening, it is important not to forget the context of the relationship between the accused and the complainant that preceded the communications deemed harassing by the complainant. For many years the accused was violent with the complainant and on March 3, 2016, things went very badly. So much that the police had to intervene and the complainant left the family home for good.

This insistence on finding the complainant at all costs is disturbing. [ 147 ] The fear was reasonable given the context. [ 148 ] The problem here concerns criminal intent ( mens rea ). Was the accused aware that the complainant felt harassed or was he reckless in this regard? [ 149 ] The complainant never told her father directly that she wanted him to stop communicating with her.

She did so in a letter she entrusted to her brother, but it is not known whether he gave it to the accused or read it to him. [ 150 ] As for recklessness, there was no evidence that the accused suspected that his daughter feared for her safety as a result of his behaviour, and yet persisted in acting in this way. [ 151 ] In the circumstances, the accused is not guilty of count 5. FOR THESE REASONS, THE COURT: [ 152 ] FINDS M. P. guilty of counts 1, 2, 3 and 4; [ 153 ] ACQUITS M. P. of count 5. _____________________________ CHRISTIAN M. TREMBLAY, J.C.Q.

Me Camille Boucher Director of Criminal and Penal Prosecutions Attorney of the Prosecutor Me Alexie Galarneau Attorney of the Accused Dates of hearing: March 13, 14, 15, 16, 17 and 20, 2023