2020 QCCA 1576, 2020 QCCA 1576

Tebourbi c. R. 2020 QCCA 1576 COUR D’APPEL CANADA PROVINCE DE QUÉBEC GREFFE DE MONTRÉAL N° : 500-10-006353-179 (500-01-096991-135) DATE : LE 24 NOVEMBRE 2020 FORMATION : LES HONORABLES GUY GAGNON, J.C.A. PATRICK HEALY, J.C.A. MICHEL BEAUPRÉ, J.C.A. MONDHER TEBOURBI APPELANT – accusé c. SA MAJESTÉ LA REINE INTIMÉE – poursuivante ARRÊT ORDONNANCE DE NON-PUBLICATION ATTENTION : En vertu de l’

article 486.4 du Code criminel , une ordonnance de non-publication s’applique au présent dossier, interdisant la publication ou la diffusion de toute information pouvant identifier l’identité de la plaignante. [ 1 ] L’appelant se pourvoit contre deux déclarations de culpabilité sur des chefs d’agression sexuelle rendues le 15 décembre 2016 par l’honorable Geneviève Graton de la Cour du Québec, district de Montréal. [ 2 ] Pour les motifs du juge Healy, auxquels souscrivent les juges Gagnon et Beaupré, LA COUR : [ 3 ] ACCUEILLE l’appel; [ 4 ] INFIRME les verdicts de culpabilité; [ 5 ] ORDONNE un nouveau procès.

GUY GAGNON, J.C.A. PATRICK HEALY, J.C.A. MICHEL BEAUPRÉ, J.C.A. Me Raphaëlle Desvignes DESMARAIS DESVIGNES CRESPO Pour l’appelant Me William Lemay DIRECTEUR DES POURSUITES CRIMINELLES ET PÉNALES Pour l’intimée

Date d’audience : 26 octobre 2020 MOTIFS DU JUGE HEALY, J.C.A. [ 6 ] This is an appeal against findings of guilt in the Criminal and Penal Division of the Court of Quebec, District of Montreal, [1] on a count of sexual assault [2] against M.C.M. in 2013 and a count of sexual assault against S.R. in 2008. Facts [ 7 ] The theory of the prosecution case was that the appellant operated a taxi adapted for passengers with special needs and that while he was transporting the complainants he touched them in a sexual manner without their consent in the front seat of the taxi.

The parties do not contest the narrative of essential facts stated by the trial judge: Événements de 2008 6. Le 18 juillet 2008, l’accusé conduit S... en taxi à [l’église A], son lieu de travail. Elle est assise à l’avant. Deux autres bénéficiaires du transport adapté, B... et L…, prennent place à bord sur la banquette arrière. 7. S... porte sa ceinture de sécurité. L’accusé lui touche la cuisse, puis il introduit sa main droite sous son pantalon et sa petite culotte. Il la pénètre de manière digitale à l’aide de deux doigts, puis la masturbe. 8.

Arrivée à destination, S... se confie rapidement à Mme Banton, une intervenante, et ce, à trois occasions au cours de la journée. 9. Le même jour, Mme Banton rédige un rapport. Une semaine plus tard, soit le 25 juillet 2008, S... est rencontrée par les autorités policières et fournit une déclaration enregistrée sur vidéo dans laquelle elle relate les faits. 10. Elle relate également un premier événement qui s’est déroulé quelque temps auparavant. L’accusé conduit S... qui est passagère à ses côtés, il lui touche la cuisse et lui demande de soulever son soutien-gorge. Ensuite, il lui flatte les seins. 11.

L’accusé est interrogé plusieurs mois plus tard, soit le 10 mars 2009. Aucune accusation n’en découle. 12. L’accusé relate un incident impliquant S.... Lorsqu’il est informé par les autorités policières en 2009 que S... a porté plainte, il se remémore un incident survenu en mars 2008. L’accusé nie s’être livré aux agressions sexuelles que S... lui reproche. Il nie toute intention de toucher à caractère sexuel. De plus, il n’a pas de souvenir d’un incident particulier avec S... en juillet 2008. Événement du 28 février 2013 13. Le 28 février 2013, l’accusé effectue le transport adapté de T…, de L… et de S....

Vers 15h00, il se présente à leur lieu de travail à l’église A pour les conduire à leur résidence respective. 14. T… est passagère à l’avant. S... est assise derrière l’accusé et L… est assise à la droite de S.... C’est à ce moment, que l’accusé se livre à des attouchements sur les « parties privées » de T…. Au cours du trajet, S... observe de l’arrière, l’accusé qui frotte de sa main droite la cuisse gauche de T.... 15. Le dévoilement des attouchements s’effectue le lendemain matin, soit le vendredi 1 er mars. S... et T... se confient à Mme Levy qui est éducatrice spécialisée.

Mme Levy qui les connaît bien, les observe toutes les deux au cours de la journée et révèle que leur comportement est atypique. 16. L’accusé admet avoir reconduit S..., T... et L… le 28 février 2013, tel que l’en atteste la feuille de route de cette journée (P-6). Il confirme que T... est assise à l’avant. Cependant, il dément avoir posé quelque geste à caractère sexuel. Il effectue le transport des bénéficiaires en s’assurant de leur sécurité. Issues [ 8 ] The appellant raises four grounds of appeal but in view of our conclusion concerning the first it is unnecessary to consider the others.

First ground: Whether the trial judge erred in admitting evidence received at the voir dire concerning three statements made by M.C.M. as evidence on the trial. [ 9 ] After the trial opened Mme Arielle Levy began to testify. Before her testimony was completed the prosecution informed the court that it wished to suspend her testimony in order to conduct a voir dire to determine the admissibility of three hearsay statements made by M.C.M. to three different persons – Mme Levy, Mme G… (M.C.M.’s mother) and Mme Boilard (the investigator).

The defence proposed to continue portions of Mme Levy’s testimony that did not require a determination of admissibility on a voir dire and then to proceed with the voir dire concerning the three hearsay statements. From the outset the prosecution made clear its intention to ask that the court, in the event that it should rule the statements admissible, should receive evidence taken on the voir dire as evidence on the trial. [ 10 ] The court evidently accepted the manner in which the prosecution proposed to present the evidence, first with the conclusion of

Mme Levy’s testimony on the trial and then to open the voir dire . The judge accepted and anticipated that the evidence on the voir dire would be received on the trial if it were ruled admissible.

The defence agreed to this proposed sequence but did not take a position concerning the reception of evidence on the voir dire as evidence on the trial. [ 11 ] It is clear that the judge had not expressly established before the voir dire began whether the defence would consent to the reception of that evidence on the trial. [3] After the evidence was heard on the voir dire the judge ruled that the three statements were admissible and that the testimony on the voir dire would be received on the trial. [4] A distinction was thus drawn between the three statements and the evidence given by the witnesses who testified on the voir dire .

There then began a sequence of exchanges in which the prosecution and the court sought clarification from the defence as to which portions of the testimony of the witnesses, apart from the three statements, should not be received on the trial. The prosecution and the court clearly understood that all of the evidence on the voir dire would be received on the trial.

The defence clearly did not share this understanding and stated not only that his previous silence concerning the reception of the evidence on the voir dire could not be construed as consent and, further, that the defence had no obligation to object to its reception or to provide the court with a reason for withholding consent. The defence nevertheless expressed consent to the reception of the testimony of Mme Boilard. The court invited the parties to leave the courtroom in an attempt to clarify what should be received.

When they returned the prosecutor announced that the discussions were useless. [ 12 ] Further discussion ensued. The defence again affirmed that there had been no agreement that all the evidence taken on the voir dire would be received on the trial. It also affirmed that in the absence of a clear consent the general principle of exclusion operates by default.

The court then says that if the defence cannot identify inadmissible elements in the evidence taken on the voir dire the public interest in judicial economy and efficiency militate firmly against calling on the trial the same evidence that was already heard on the voir dire .

The court then asks the defence to identify clearly and in writing those passages to which it will not give consent, and to explain why. [ 13 ] One week later the defence complied with the request of the court and identified several passages in the testimony of Mme Levy and Mme G… and provided brief statements of the reasons for its objections. [ 14 ] It is well settled that a voir dire is a trial within a trial and that evidence on the voir dire is not evidence on the trial unless the parties consent to its reception and the decision to receive such evidence on the trial without the consent of the parties is an error of law that is subject to review on a standard of correctness. [5] This general principle of exclusion is of particular concern to a party whose interest is in principle adverse to the proponent of the evidence because consent is an expression of the absence of prejudice.

Consent is therefore an exception to the general principle that excludes evidence on the voir dire from the trial. The rationale for this principle is self-evident in trials conducted with a jury, especially if the accused testifies at the voir dire because there is no other guarantee of the right to silence at trial.

It applies equally to trials conducted by a judge alone not only for this reason but because more generally the manner in which evidence is taken on the voir dire will often be essential to the development of the defence strategy for the trial. [ 15 ] The issue raised by the appellant in this case requires attention to two points. The first is to ascertain how stringently the exclusion of evidence taken on the voir dire should be applied and how the requirement of consent should be observed in practice.

The second is whether the exclusion of evidence on the voir dire may be relaxed in the discretion of the judge. [ 16 ] The general principle that excludes evidence taken on the voir dire from the trial is a prophylactic principle that is intended to protect the trier of fact from contamination before assessing the whole of the evidence at the end of the case. It necessarily excludes the possibility that the judge can unilaterally decide to receive it on the trial after deciding that the proposed evidence is admissible.

To do so would grant to the judge a discretion to interfere with counsel’s carriage of the case before the trier of fact. It would also open a risk of prejudice. In this respect, even if the evidence tendered on the voir dire for use at trial is admissible, the general principle of exclusion means that it cannot be put before the trier of fact in the absence of consent by the parties. [6] [ 17 ] The authorities support a firm approach to the general principle of exclusion. This is apparent in Erven : It is axiomatic that the voir dire and the trial itself have distinct functions.

The function of the voir dire is to determine admissibility of evidence. The function of the trial is to determine the merits of the case on the basis of admissible evidence. The voir dire is conducted in the absence of the jury, who should not be informed, at any time, of the subject matter of the voir dire. The accused may testify on the voir dire while remaining silent during the trial.

Evidence on the voir dire cannot be used in the trial itself. [7] [ 18 ] This observation was made specifically with regard to a voir dire that is required to test the admissibility of a confession at common law but it applies to any circumstance where a voir dire is required to test a question of admissibility. [ 19 ] Erven reinforced what the Supreme Court had said in Gauthier , [8] which approved the dissenting comments the reasons of Miller C.J.M. in Bannerman : The admission of the statement was allowed only after a voir dire.

The learned trial judge held it was a voluntary statement and properly admissible, so after the voir dire it was filed in the trial as Exhibit 3. Counsel did not raise any objection as to voluntariness when the trial resumed after the voir dire, before the statement was filed as Exhibit 3. Mr. Walsh now contends that evidence should have been produced at the trial after the conclusion of the voir dire to show the voluntariness of the statement. I am unable to accept this contention.

It is true that after a voir dire in a jury trial the trial resumes and the admission or confession must be proved, including the voluntary aspect, in the ordinary way in the presence of the jury. This is done necessarily because a jury is excluded during the voir dire, and, furthermore, it is part of the jury’s function to assess the truth, and the voluntariness or otherwise, of the statement. However, it is not reasonable to require a repetition in the trial proper, before the judge alone, of all the evidence taken on the voir dire in order to establish whether the statement was or was not made voluntarily.

I realize that the voir dire must be kept separate from the trial and that certain evidence on the voir dire must be completely excluded from the mind of the trial judge - such as evidence that might be given by the accused and others - unless leave is given, with the concurrence of counsel, to have voir dire evidence read into the trial for the purpose of saving time. The judge’s function is to decide whether a statement is or is not admissible, and he decides that after hearing the voir dire.

Then the statement, if ruled admissible instead of being an exhibit for identification as in the voir dire, becomes an exhibit in the trial, and once it becomes an exhibit in the trial it is part of the evidence by virtue of the ruling of the learned trial judge that it is

admissible.[9] [20] A voir dire may be waived by the accused but only in compliance with the strict standard expressed in Korponay: Some procedural requirements are enacted for the protection of the rights of one of the parties, Crown and accused, and others for both.A party may waive a procedural requirement enacted for his benefit, the concurrence of both being required when enacted for both.Generally speaking, the right to waive that type of procedural requirement has been recognized by all the courts, including this Court, andhas been recently reaffirmed by this Court's decision as regards the waiver of a voir dire into the circumstances surrounding the giving ofa statement by an accused to a person in authority (see Park v.

The Queen, (SCC), [1981] 2 S.C.R. 64). Paramount tosuch a right is that of the trial judge to require compliance notwithstanding a desire to waive, he being the ultimate judge of whatprocedural safeguards need nevertheless be respected in order to protect the certainty and the integrity of the judicial process. When one looks at the various cases dealing with waiver, the problem which presents itself relates to what formalities should surround awaiver before the court should accept it and give it effect, in order that it will be a bar to the party seeking to assert a non-compliancewith the procedural requirement.

As a general proposition, I should like to restate here what was said by our brother Dickson J., speaking for the Court, in Park, supra. Hewas of course speaking of the waiver by counsel of a voir dire [at pp. 73-74]: No particular words or formula need be uttered by defence counsel to express the waiver and admission. All that is necessary is that thetrial judge be satisfied that counsel understand the matter and has made an informed decision to waive the voir dire. [...] Although no particular form of words is necessary the waiver must be express.

Silence or mere lack of objection does not constitute alawful waiver. The question is - does the accused indeed waive the requirement of a voir dire and admit that the statement is voluntaryand admissible in evidence? If that question can be answered in the affirmative I cannot think that any further procedural safeguards arenecessary to protect the rights of an accused person.

Indeed the Court is saying in Park that the validity of such a waiver, and I should add that that is so of any waiver, is dependent upon itbeing clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights theprocedure was enacted to protect and of the effect the waiver will have on those rights in the process.

This has long been recognized, as isillustrated by many cases, and particularly so by those dealing with a judge's duties as regards a plea of guilty, which is the waiver by anaccused of his right to put the Crown's case to the test of a trial. (See amongst others, Adgey v. The Queen, (SCC),[1975] 2 S.C.R. 426; Brosseau v. The Queen, (SCC), [1969] S.C.R. 181). The judge's duties concerning any waiver areno different than those on a plea of guilty.

The factors he will take into account in determining whether the accused has clearly andunequivocally made an informed decision to waive his rights will vary depending on the nature of the procedural requirement beingwaived and the importance of the right it was enacted to protect.

However, always relevant will be the fact that the accused is or is notrepresented by counsel, counsel's experience, and, in my view of great importance in a country so varied as ours, the particular practicethat has developed in the jurisdiction where the events are taking place.[10] [21] It must be remembered, however, that while the requirement of a voir dire may be waived by a party according to Korponay sucha waiver does not by itself ensure that evidence taken on the voir dire may be received on the trial. That is technically a separatequestion.

The principle in Korponay also applies to the requirement of consent for the reception of evidence from the voir dire on thetrial because that consent is a waiver of the necessity to recall at trial evidence that was called on the voir dire. [22] The parties in this case referred to the voir dire as “mixed” or “blended.” A blended voir dire can have several meanings. First itis common to use this term to refer to a voir dire in which the admissibility of evidence is tested under the Charter and some other legalprinciple.

Second, it can be used to refer to a single voir dire in which the admissibility of various items can be tested. Third, as in thepresent case and only in a trial without a jury, it can refer to a voir dire in which the parties and court understand and agree in advancethat the evidence tendered will later be received on the trial. With respect to the third type of blended voir dire, the following adviceshould be heeded: Lors d’un procès devant un juge siégeant sans jury, il est possible de tenir ce que l’on désigne en anglais comme un « blended voirdire ».

Dans un souci d’efficacité, et afin d’éviter d’avoir à faire entendre certains témoins aussi bien lors du voir-dire qu’au procès, lesparties peuvent, avec l’autorisation du juge, renoncer au caractère étanche du voir-dire. Dans un tel cas, le voir-dire procède en mêmetemps que le procès. La preuve administrée fait alors

partie aussi bien de la preuve sur voir-dire que de la preuve au procès. Avant depermettre de procéder ainsi, le juge doit s’assurer que les parties saisissent bien les enjeux en cause, notamment l’usage qui pourra êtrefait de la preuve administrée.

Cette exigence s’avère particulièrement importante en présence d’un accusé qui se représente seul et quipourrait vouloir bénéficier du caractère étanche du voir-dire afin de témoigner dans le cadre de celui-ci sans renoncer à la protectioncontre l’auto-incrimination que lui confère l’article 13 de la Charte.[11] [23] There are different ways in which the requirement of consent can be addressed and several observations are appropriate.

The firstis that there is no obligation on a party to make an objection to the reception of evidence taken on the voir dire and there is no scope fora judge to conclude that consent was given by a party implicitly. Silence is insufficient and a party is not obliged to object.[12] The bestpractice is for the judge to establish before, during and certainly after the voir dire – and before judgment is pronounced, whether theparties consent to the reception at trial of evidence taken on the voir dire.

It is essential that this exercise be completed thoroughly ininstances, as in this case, in which a single voir dire is held to test the admissibility of more than one item of evidence. Often this will bedone at the request of the proponent of the evidence and typically these issues do not pose difficulties. Second, and as a corollary of thisconcern for explicitness, it is also ill-advised for the evidence taken on the voir dire to be received at trial in fragments unless theidentification of those fragments is also explicit and unambiguous.

The record of the voir dire should leave no doubt concerning thescope and content of the consent given by the parties. [24] In Camara the court, in an obiter dictum, suggested how judges and parties might approach the issue of consent before, duringand after the production of evidence on the voir dire:

[16] Although the authorities do not address the issue as to when the court may consider voir dire evidence at trial, without counsel's consent after requesting that consent, there appears no valid reason why the court could not proceed if certain safeguards are followed: 1. Where no defence evidence has been led in the voir dire — ask for counsel's consent in the usual manner. 2. If counsel does not consent — inquire as to the reason. 3. If the reason raises valid concerns as to the admissibility of some aspects of the voir dire evidence, those aspects should be excised or the admissible evidence be repeated. 4.

If counsel's reason for not consenting is without a valid basis, the trial judge should have a discretion to declare that the evidence form part of the trial. [13] [ 25 ] With the exception of the last paragraph, this is sound advice but the last is best avoided because it inevitably carries with it a risk of ambiguity and, at worst, a risk of impairing the right to silence and the right to make full answer and defence. [14] The better course would be to require counsel to take a position and give a reason. [ 26 ] At least three points have been consistently observed concerning the best practice concerning a decision whether evidence on the voir dire should be admitted at the trial.

First, the question should be explicitly addressed to the parties. Second, the parties should be asked directly whether they consent to the transfer of evidence on the voir dire to the trial record and, if they do consent, to which portions of the evidence. It follows that if consent is withheld, the portions for which consent is withheld should also be specified. Third, and perhaps rather obviously, this procedure must be followed before the judge makes any decision concerning the transfer of evidence into the trial record. [ 27 ] A judge who deviates from this procedure assumes considerable risk.

A unilateral decision to transfer evidence on the voir dire to the trial might not only be incompatible with the right to silence or the right to full answer and defence. It is also incompatible with the elementary proposition that the parties remain masters of the evidence presented to the trier of fact. It is clear that in some cases there might be no conceivable prejudice, or even the risk of prejudice, in the transfer of evidence from the voir dire to the trial.

It is equally clear, however, that any such risks can be avoided with relative ease by following the procedure just described before the judge makes a formal determination of the issue. The only apparent justification from deviating from it might arise in a case where an obdurate party refuses to explain why, in the absence of any identifiable risk, consent to the transfer of evidence is withheld. [ 28 ] As in the present case, it is clear that there are concerns about judicial economy and the efficient use of resources to avoid the needless duplication of evidence on the voir dire and the trial.

Perhaps the judge in this case mistakenly assumed that the parties had agreed to a voir dire in which an order would issue for it to be received on the trial if it were found admissible. The judge can scarcely be criticised for seeking an explicit affirmation of the scope and content of consent by the defence, but it was an error to the extent that this was not done before judgment was pronounced.

It is imperative that this issue be resolved with complete clarity before judgment is given to receive evidence tendered on the voir dire as evidence in the trial. [ 29 ] The defence is far from immune from criticism for being unprepared or ill-prepared to take a clear position on this issue before judgment at the conclusion of the voir dire . It remains, however, that the parties and the court have an obligation to ensure that the issue is resolved unambiguously before a decision is made to receive any or all of the evidence on the voir dire at trial.

This is an obligation on the parties that flows from the requirements of good practice. It is a legal obligation that must be observed by the judge because the judgment on the voir dire comprises not only a conclusion concerning the admissibility of evidence but, if it is ruled admissible, a conclusion whether to receive the evidence on the trial.

It follows that even if there is no apparent prejudice to a party the requirement for consent from the parties is incompatible with any suggestion that the judge retains a residual and unilateral discretion to allow the reception of evidence on the voir dire . [ 30 ] In this case the decision to receive the evidence at trial was made despite the possibility that the defence would have conducted the voir dire and the trial differently if it had been clear that the issue of consent was thoroughly resolved before the decision was formally made.

It is arguable that this possibility was slight, that the risk of prejudice arising from the decision was minimal and that the chance of the decision affecting the outcome of the trial was remote.

Even if these risks were unlikely to materialise, they cannot be set aside so as to displace the general principle and to allow the curative proviso to prevail. [15] Further, the cases on the two counts concerning one complainant in 2013 and the other in 2008 cannot now be split so as to preserve the finding of guilt on the second count because important aspects of the evidence – notably identification – were inextricably linked. [ 31 ] I propose to allow the appeal and order a new trial. In these circumstances it is unnecessary to consider the other three grounds of appeal. PATRICK HEALY, J.C.A.