2016 QCCA 1367, 2016 QCCA 1367

Unofficial English Translation L.L. c. R. 2016 QCCA 1367 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-005326-127 (755-01-022014-077) DATE: SEPTEMBER 1, 2016 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. NICHOLAS KASIRER, J.A. MARIE ST-PIERRE, J.A. L. L. APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT PUBLICATION BAN This judgment is subject to an order directing that any information that could identify the complainant shall not be published, broadcast or transmitted in any way ( subsections 486.4(1) and (2) of the Criminal Code ). [ 1 ] The appellant appeals from a judgment of the Court of Quebec, Criminal and Penal Division, District of D’Iberville (the Honourable Judge Éric Simard), rendered November 29, 2012, convicting him of various sexual offences.

The appellant further seeks leave to appeal from the judgment rendered on June 6, 2013, also by Simard, J. sentencing him to a four-year prison term. [ 2 ] For the reasons of Doyon, J.A., with which Kasirer and St-Pierre, JJ.A. agree, the Court: [ 3 ] DISMISSES the appeal from the conviction; [ 4 ] ALLOWS the application for leave to appeal from the sentence; [ 5 ] DISMISSES the appeal from the sentence; [ 6 ] ORDERS the appellant to surrender himself within 72 hours of this judgment. FRANÇOIS DOYON, J.A. NICHOLAS KASIRER, J.A. MARIE ST-PIERRE, J.A. Mtre Richard F.

Prihoda Avocats Montréal Mtre Julie Giroux For the appellant Mtre Magalie Cimon

Director of Criminal and Penal Prosecutions For the respondent Date of hearing: June 8, 2016 REASONS OF DOYON, J.A. [ 7 ] The appellant acknowledges that he had sexual relations with his underage sister. He claims, however, that she consented so that while he may be guilty of incest, he did not commit the sexual assault and indecent assault for which he was convicted. His relationship with his sister was, according to him, romantic. The Court should therefore set aside the convictions, except the conviction for incest. [ 8 ] He also contests the prison sentence imposed on him.

Because he is guilty only of incest, committed over 30 years ago when he was only 19 years old, he submits that he should have received a conditional sentence. [ 9 ] Finally, he is of the view that the proceedings should have been stayed in any event, because of the destruction of documents essential to his defence. BACKGROUND [ 10 ] The appellant is the complainant’s older brother. He is three years and two months older than her. [ 11 ] According to the complainant’s testimony, the appellant was also underage when the first assault occurred.

The charges, however, concern only the period after his 18th birthday, on ..., 1982, and ending 18 months later, on May 1, 1984. The complainant was then pregnant. A report was filed with the Director of Youth Protection (“DYP”) in the context of terminating the pregnancy. The DYP opened and then closed a file without court intervention. [ 12 ] During the entire period, the complainant, born on ..., 1967, was underage.

It should be added that, according to her testimony, one of the assaults was committed at knifepoint. [ 13 ] She filed a complaint with the police in 2006, the information was sworn in February of 2007, and the trial took place in 2012. [ 14 ] Before the trial got underway, a motion for a stay of proceedings was brought based on the destruction of evidence, specifically two files, held respectively by the DYP and the Centre local de services communautaires (“CLSC”), where the abortion was performed.

Understanding this motion requires familiarity with the complainant’s testimony at the preliminary inquiry regarding her 1984 visit to the CLSC, filed by consent during the voir dire on the motion. [ 15 ] According to this version, when she learned that she was pregnant at age 16, her mother brought her to see a doctor.

The complainant informed the doctor that her older brother was the father and the doctor referred her to the CLSC for an abortion. [ 16 ] During a group meeting at the CLSC, her mother spoke up and declared that her daughter [ translation ] “had fooled around with a boy and gotten herself pregnant”. The complainant did not contradict her. Later, however, during a meeting where her mother was absent, she confided in the nurse that it was indeed her brother who was the father. Accordingly, a report was made to the DYP. [ 17 ] After the abortion, the DYP followed up with the complainant.

During the meetings she attended, she did not really speak of her brother’s involvement because her mother had told her that it would have negative consequences for the family, including prison for her parents. The assaults stopped once the report was made and the DYP closed the file, which would eventually be destroyed. The CLSC file met the same fate. [ 18 ] The appellant claimed that these files were essential to his defence and their destruction caused him irreparable harm, which should result in a stay of proceedings.

The judge dismissed the motion. [ 19 ] At trial, the prosecution’s case was limited to the complainant’s testimony. In addition to the appellant, five other witnesses were heard for the defence. [ 20 ] As we know, the judge convicted the appellant and sentenced him to a four-year prison term. TRIAL JUDGMENTS Motion for a stay of proceedings [ 21 ] The judge deemed that [ translation ] “the information in the DYP file may have been relevant and useful to the defence”. [ 22 ] That was not the case with the CLSC file, however, as the appellant was unable to establish its utility. The judge wrote: [ translation ]

[36] ... There is nothing in the evidence to support the petitioner’s argument as to its utility.

The only statement that could be contradictory, i.e., her agreeing with her mother’s statement that she had fooled around with a boy, is contextual and logically explained by the complainant. [37] Moreover, she states that she set the record straight as soon as she found herself alone with the nurse, a claim confirmed by the report to the DYP. [ 23 ] That put an end to the debate as to this evidence. [ 24 ] As for the DYP file, the judge added that even if it still existed its disclosure would not have been inevitable, given the exceptional regime under s. 278.3 Cr. C.

He added that the destruction of this file was justified in law because s. 37.4 of the Youth Protection Act , as it read at the time, provided for the destruction of files after five years or when the youth had reached the age of majority, which in this case was 1985. The judge was satisfied with this explanation. [ 25 ] Moreover, the appellant was unable to convince him that there would be irreparable harm to his right to make full answer and defence because the complainant had made several other prior statements. The appellant could use those statements to cross-examine her effectively.

Furthermore, the mother, who was present at several of the meetings with the DYP, could also testify about any inconsistent statements the complainant may have made. [ 26 ] Finally, the whole exercise is hypothetical, since counsel for the appellant admitted that he was speculating regarding the possibility that the complainant had given an inconsistent version during her meetings with the DYP. Conviction [ 27 ] The judge rejected the appellant’s testimony.

He wrote: [ translation ] [54] But there is more; in light of the evidence as a whole, some of his statements are implausible or not credible. [ 28 ] For example, if they were in love, as the appellant claims, how is it that there were no signs of this (closeness, sweet nothings, gifts, etc.) other than intercourse, as the appellant himself admitted? How is it that no one in the family noticed the existence of a romantic relationship and saw only normal interactions between brother and sister?

If the complainant was in love with the appellant, how is it that she did not confide in him when she found out that she was pregnant? These observations all led the judge to reject completely the existence of a romantic relationship. [ 29 ] Nor did he believe the appellant’s story that he learned the relationship was abnormal or inappropriate only when the DYP got involved. The judge also noted that the appellant had selective memory during his testimony.

He also pointed out certain inconsistencies with the statement he gave to the police. [ 30 ] He considered, moreover, that the evidence of good character failed to add anything to the debate. He did not accept the appellant’s revenge theory to explain away the complainant’s version. Furthermore, he found the credibility of some of the witnesses for the defence to be more than questionable, to the point that their testimony had to be set aside.

He justified this decision as follows. [ 31 ] These witnesses testified that they had never noticed anything abnormal between the appellant and the complainant, either before or after the abortion, which is in [ translation ] “direct contradiction with the testimony of the complainant and the accused”. [Emphasis in the original.] [ 32 ] Furthermore, according to the judge, the mother displayed a marked preference for her son throughout her testimony, a fact which corroborates the complainant’s testimony. It is one of the reasons the mother cannot be believed: [ translation ] [83] ...

Anything that might benefit him [the appellant], she remembers. Conversely, anything that might incriminate him is either impossible or forgotten. Even when confronted with her prior statement in which she claimed that X told her she had been assaulted by the accused, she does not remember. What she does remember, however, is that she was forced to sign the statement in question under threat by the investigator. In short, her testimony lacked credibility. [ 33 ] He added that she was [ translation ] “belligerent and hostile” during cross-examination.

Her behaviour [ translation ] “unequivocally” showed her clear preference for her son. [ 34 ] The other defence witnesses also lacked credibility. [ 35 ] Consequently, he rejected the version offered by the appellant’s sister-in-law, who, during her testimony, [ translation ] “prevaricated, hesitated, chuckled, and appeared to take it all very lightly”. Furthermore, although she told the police officers in 2006 that the complainant had previously confided in her that the appellant had assaulted her, she now claimed that she did not remember.

The judge characterized this testimony as complicit. [ 36 ] The testimony of the appellant’s brother, who left the family home in 1982, was also set aside because it lacked relevance and reliability, notably because his memory was failing and he was unable to say anything about the state of family relations during the period at issue. [ 37 ] The testimony of the appellant’s ex-girlfriend was also rejected because she clearly bears animosity towards the complainant.

[38] The judge then examined the complainant’s testimony, emphasizing that the analysis would concern only the maincontradictions, not all those raised by the defence, some of which were minor or concerned only collateral matters.

He wrote: [translation] [77] The Court does not intend to dissect each of the arguments raised by counsel for the accused during his closing arguments. [39] On this matter, he cited this Court’s judgment in LSJPA–1238, 2012 QCCA 2065: [translation] [29] Moreover, I do not share the appellant’s point of view that the judge had to [translation] “account for the many inconsistencies andcontradictions raised”.

The judge turned his attention to some of the [translation] “contradictions” raised by the appellant, but he did nothave to perform a surgical or sequential examination of the complainant’s answers or her hesitations. “Evaluating credibility is not anexact science.” I am of the opinion that the judge adequately performed his task.

Moreover, there are no significant inconsistencies orcontradictions in the evidence here. [40] To further answer to the defence arguments, the judge recalled that to find a contradiction or inconsistency between thetestimony of the complainant and that of other witnesses, the latter must at least be believed. This was not the case for the witnesses here. [41] The testimony of the complainant was [translation] “transparent, sincere, and credible”. Despite certain contradictions onsecondary facts, he found her to be truthful and was convinced beyond a reasonable doubt of the appellant’s guilt.

The sentence [42] The judge cited abundant case law leading him to impose a sentence prioritizing denunciation and deterrence. [43] He rejected the defence argument that the appellant’s young age at the time of the events favoured the objective ofrehabilitation. [44] As for the aggravating circumstances, he noted the seriousness of the offences – including one count of aggravated sexualassault, their duration and repetitiveness, the breach of trust, and the long-term consequences for the victim. [45] As mitigating circumstances, he noted the absence of any prior convictions, the appellant’s age at the time of the offences, hisrehabilitation, the fact that he is the father of six children (two of whom have unfortunately died), and the fact that there is no risk ofrecidivism. [46] With respect to the 30-year delay, he noted that this is not exceptional with this type of offence and did not justify a morelenient sentence even though the [translation] “time elapsed between the commission of the offences and the conviction is relevant whenthe accused’s life has stabilized and there has been no recidivism”. [47] The judge added that he took into consideration the collateral consequences of a prison sentence, particularly its impact on theappellant’s family, including a 15-year-old son (at the time of the judgment) who was seeing a psychologist.

He deemed, however, thatthe mother could ensure that the care continued and that the two eldest sons could take over the appellant’s farm. [48] Being of the view that a suspended sentence would not be appropriate, he concluded that an overall four-year prison sentencemet the objectives of proportionality, where general denunciation and deterrence were given precedence in sending a [translation] “clearmessage”. STAY OF PROCEEDINGS [49] Evidence in the possession of third parties is not generally covered by the rule in R. v. Stinchcombe, (SCC),[1991] 3 S.C.R. 326.

Justice Karakatsanis reiterated this principle in R. v. Quesnelle, 2014 SCC 46 , [2014] 2 S.C.R. 390 atpara. 11: [11] The Crown has a broad duty to disclose relevant evidence and information to persons charged with criminal offences. Stinchcombe,at pp. 336-40, provides that the Crown is obliged to disclose all relevant, non-privileged information in its possession or control so as toallow the accused to make full answer and defence. For purposes of this “first party” disclosure, “the Crown” does not refer to all Crownentities, federal and provincial: “the Crown” is the prosecuting Crown.

All other Crown entities, including police, are “third parties”.With the exception of the police duty to supply the Crown with the fruits of the investigation, records in the hands of third parties,including other Crown entities, are generally not subject to the Stinchcombe disclosure rules. [50] The rule in the two leading cases is different. [51] In Stinchcombe, the Crown in possession of relevant evidence has a duty to conserve it and to disclose it to the defence (R. v.Cartier, 2015 QCCA 329 at para. 75), thus requiring an explanation to the court of its loss or destruction.

If the loss or destruction isunjustified, the right to disclosure of evidence is violated, and the appropriate remedies must be then examined. If it is justified, there isno such violation: R. v. Cartier. [52] Moreover, in some cases, even if the destruction or loss of evidence is satisfactorily explained, there may be a violation of theright to a fair trial when the accused is deprived of the possibility of making full answer and defence, a demanding standard. In such asituation, it is the accused’s right to a defence that is at stake rather than the right to the disclosure of evidence.

This is what Sopinka, J.writes in R. v. La, (SCC), [1997] 2 S.C.R. 680 at para. 24:

The Crown’s obligation to disclose evidence does not, of course, exhaust the content of the right to make full answer and defence unders. 7 of the Charter.

Even where the Crown has discharged its duty by disclosing all relevant information in its possession and explainingthe circumstances of the loss of any missing evidence, an accused may still rely on his or her s. 7 right to make full answer and defence.Thus, in extraordinary circumstances, the loss of a document may be so prejudicial to the right to make full answer and defence that itimpairs the right of an accused to receive a fair trial. [53] On the other hand, when a third party is in possession of the evidence, the duty to preserve and disclose does not generally exist,except, for example, where the Crown must make reasonable inquiries within the meaning of R. v.

McNeil, 2009 SCC 3 , [2009]1 S.C.R. 66. The procedure for gaining access is set out in R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411, unless a specificrule exists such as the rule under s. 278.3 Cr. C.: R. v. McNeil.

The question of prosecutorial negligence with respect to preservingevidence then loses significance. [54] In such a case, to find that the right to make full answer and defence has been violated and to consider a remedy such as a stayof proceedings, actual harm to the right to make full answer and defence due to the destruction or loss of evidence must be demonstrated,as Kasirer, J.A. pointed out in R. v.

Simard, 2015 QCCA 1266: [translation] [69] Under the circumstances, it is not enough, as it would be in the case of a failure to comply with the duty to disclose pursuant toStinchcombe, to show a [translation] “reasonable possibility” that the lost documents would have been useful to Mr. Simard’s defence tofind that his

section 7 Charter rights were violated. With respect, the judge erred at paragraph [48] of her reasons when she presented theissue thus: [translation] “following R. v. Dixon, [ (SCC), [1998], 1 S.C.R. 244 at para. [22]], is there a reasonablepossibility that the missing evidence could have helped the defence?” That test did not apply here.

In light of the case law on the loss ofdocuments by a third party, the judge should have used a more stringent test, that is, the demonstration by the accused of [translation]“actual harm to his right to make full answer and defence”. [55] In any case, however, regardless of whether or not the State is in possession of the evidence, the basic principle remainswhether or not the evidence is relevant, assessed according to criteria that vary according to the circumstances.

Harm that is not purelyconjectural must also be shown. [56] Finally, a stay of proceedings is a draconian remedy that must be ordered only in the clearest of cases. Here, we must also takeinto consideration the circumstances in which the files were destroyed, that is, well before the police investigation and in accordancewith the law, without any unlawful purpose. [57] Because the files contain [translation] “personal information for which there is a reasonable expectation of privacy” within themeaning of s. 278.1 Cr. C., the procedure to gain access set out in ss. 278.3 to 278.9 Cr.

C. would have applied had the files still existed.This procedure is considerably different from that used in O’Connor, as Charron, J. noted in R. v. McNeil, at paras. 26 and 30: ... O’Connor has been overtaken by Parliament’s subsequent enactment of the Mills regime contained in ss. 278.1 to 278.91 of theCriminal Code for the disclosure of records containing personal information of complainants and witnesses in sexual assaultproceedings. ...

It is important to note that the common law likely relevance threshold in O’Connor differs significantly from the statutory likelyrelevance threshold set by Parliament for the production of records containing personal information in sexual assault proceedings underthe Mills regime ... . [58] This procedure is more exacting. The regime requires the applicant to outline the grounds demonstrating that “a record is likelyrelevant”. The mere fact, for example, that the record concerns the event in question or is likely to contain an inconsistent statement bythe complainant is not enough (s. 278.3(4)(

c) and (

d) Cr. C.). In this context, s. 278.6 Cr. C. is severe, and I am far from believing thatthe evidence would have permitted the judge to be convinced that the files, which contained information that clearly engaged questionsof privacy, were “likely relevant” and that their disclosure would have served the “interests of justice”. [59] I repeat: under this procedure, the mere existence of a record related to the events at issue is not enough to order its disclosure.But, the mere existence of the file is what the appellant pleads.

Indeed, at paragraph 51, he writes that the DYP file is relevant because itwould [translation] “reveal the content of the notes made by the CLSC Saint-Hubert nurse and the DYP worker.” This hypothesis or thehope of discovering evidence does not establish that this type of record should be accessible. [60] In other words, in this case, the harm caused to the appellant by the destruction of the files must be assessed while taking intoaccount the improbability or even impossibility of gaining access to these files, even if they hadn’t been destroyed, making it difficult toconclude harm occurred. [61] In any event, the evidence was in the possession of third parties, who destroyed it.

Actual harm endangering the right to makefull answer and defence must be shown. The prosecution was therefore not required to satisfy the judge that the DYP’s destruction of thefile was justified, even though it did. The judge did not even ask himself this question with respect to the CLSC file because he deemed itto be irrelevant. [62] It may be appropriate to draw a distinction between the DYP and the CLSC files in terms of their relevance, as the respondentin fact concedes.

Whether the file is relevant or not, however, the appellant has failed to convince me that the trial judge erred byrefusing to stay the proceedings. [63] The CLSC file refers to meetings and care provided in connection with a young person’s abortion, nothing more. Thecomplainant admits that she may have intimated that her mother was telling the truth when she claimed that a young man was the father.But, she explains why: her mother wanted to protect her son and had told her that it was her mother and father, not her brother, whowould be jailed if she told the truth.

She later confided in a CLSC worker, telling her that her brother was the father. In short, the

complainant has admitted that she contradicted herself to a certain degree during the meetings at the CLSC, and the defence cannot realistically state that the file would reveal more than what the complainant herself has in by making this admission. In other words, even if the defence believes that the file would prove the existence of an inconsistent statement, this proof has already been made. [ 64 ] It is also important to recall that the appellant’s version concedes sexual intercourse occurred.

The fact that the complainant initially implied that she had [ translation ] “fooled around with a young boy” who was the alleged father, and then contradicted herself by stating that the father was the appellant, does not really help the appellant in light of his admission. This is a case of a contradiction, admitted by the complainant, that may be used on cross-examination but cannot otherwise help the appellant. Overall, file or no file, it was possible to cross-examine the complainant. [ 65 ] The judge found that actual harm to the right to make full answer and defence had not been proved. I agree.

The appellant was able to mount a defense despite the destruction of the two files. In this respect, even though the judgment was rendered prior to the start of the hearing on the merits, the evidence heard at trial may be taken into consideration on appeal, because a trial judge could personally, during or even at the end of the trial, rule on the harm: R. v. La , supra , and R. v. Rail , 2005 QCCA 1617 at para. 35 .

The evidence at the voir dire and at the rest of the trial shows that the appellant could mount a defence without being in possession of the files. [ 66 ] For example, at the voir dire and at trial, the complainant stated on several occasions that she had told the CLSC doctor and nurse that her brother had [ translation ] “sexually assaulted” her. At trial, she later explained that, at the time, she was unable to use the term [ translation ] “assault”. Instead she said that her brother [ translation ] “would come to join her” in her bed.

This is how she explained herself: [ translation ] Yes, I had told him [her brother B.] but I did not tell him all the details, what L. did to me, because in eighty-four (84), yes, I could talk about it, but not using the right words, because, at the time, I would not refer to it as [ translation ] “sexual assault”, I would say that [ translation ] “he would come to join me”. In eighty-four (84), I was unable to say [ translation ] “sexual assault”, it was too difficult for me.

So, I would say that he would come and join me. [ 67 ] This last statement is somewhat akin to admitting that the destroyed files may well have contained prior statements that would, to a degree, be inconsistent with her testimony: [ translation ] “come to join me” might be an expression tending to confirm the appellant’s version, whereas the term [ translation ] “assault” is more in keeping with her version. Hence, the issue no longer concerns access to the file to demonstrate that the complainant has related events differently in the past, as this possibility is quite real.

Rather, the issue is whether or not her explanation is credible. [ 68 ] Thus, even if the appellant had access to the files, and even if they revealed that the young girl said that the appellant [ translation ] “went to join her”, and even if the expression [ translation ] “assault” was nowhere to be found, the issue would remain the complainant’s credibility and the reliability of her version and explanation.

In light of her testimony, possession of the file would have changed nothing and the appellant has therefore failed to convince me that the cross-examination could have been more efficient. [ 69 ] Furthermore, the complainant’s mother, who was present for one of the meetings at the CLSC, could also testify as to her daughter’s earlier version.

The same is true for the other defence witnesses, and they did so. [ 70 ] To conclude on this subject, faced with the speculation raised by the defence and the hypotheses and assertions it submitted respecting the right to make full answer and defence, the judge could reasonably find that proof of actual harm had not been made and that a stay of proceedings was not the appropriate remedy. [ 71 ] I am therefore of the view that this ground of appeal should be dismissed.

THE UNREASONABLE VERDICT [ 72 ] According to the appellant, the conviction is unreasonable because the judge [ translation ] “committed a palpable and overriding error in his assessment of the evidence”. He impugns the assessment of the testimony of the complainant, his own testimony, and that of the other witnesses. Let us take a closer look. The complainant’s testimony [ 73 ] The judge wrote: [ translation ] [93] The Court wishes to point out that the testimony of X [the complainant] strikes me as transparent, sincere, and credible.

Despite some inconsistencies on collateral facts such as the conversation, denied by J.L., during which he allegedly told her that the accused may have assaulted other girls, or inconsistencies on secondary facts such as the number of times she placed a desk against her door to block his access, reveals nothing to indicate that the truth was being disguised. [94] Her testimony also contains nothing to raise any reasonable doubt as to the essential elements of the offences alleged against the accused. [95] The Court has no doubt that the facts related, even considering only those admitted by the accused, were devastating for a young woman.

The abuse committed by an older brother she loved, combined with the trivialization of this by her own mother, must have impacted her deeply. Despite everything, she testified clearly, plainly, and credibly.

[ 74 ] The appellant points to no fewer than 25 excerpts or portions of testimony which he characterizes as inconsistent, implausible, or incoherent and which, he claims, the judge failed to take into consideration even though they might have [ translation ] “negatively influenced” his assessment of the complainant’s testimony. [ 75 ] In my opinion, the approach the appellant suggests would basically consist of retrying the case.

In addition to the fact that this is not the role of a court of appeal, I find that many of the differences he raises are minor, insignificant, admitted, and explained by the complainant, or merely the result of an assessment that differs from that of the judge. [ 76 ] Thus, without going into too much detail, the following contradictions raised by the appellant are unimportant, satisfactorily explained (notably by the anxiety of testifying at the preliminary inquiry), or are simply not inconsistent: • The exact moment during the first assault when the appellant told the complainant that nobody would believe her if she talked about it: before or after ejaculation? • With respect to the assault that took place on ..., 1983 (the appellant’s birthday when he [ translation ] “came to get his birthday gift”, she said), the precise moment when he had a [ translation ] “crazy look” about him: when he first went into her bedroom or when he came back a few minutes later, furious and holding a knife, after she had kneed him in the testicles? • The exact position of the appellant and his precise actions during the assault in October 1983: was he holding the knife in one hand and holding her down with the other or was he holding her down with both hands, with no mention by her of the knife? • The number of times she placed her desk against her bedroom door to stop the appellant from entering: once or twice? • At the preliminary inquiry, she stated that [ translation ] “if he didn’t drink, there was no assault”, whereas at the trial, she testified that [ translation ] “most of the time, he smelled of alcohol”. • The frequency of the assaults.

At the preliminary inquiry, as is often the case, the testimony was

summary: [ translation ] “it happened every week” she said, without detail or more specific questions. At trial, the testimony was more in-depth and the questions more specific. Thus, during the first year, the assaults occurred once or twice a month, and the frequency increased after his birthday in 1983 and occurred every week, except when she had her period. I fail to see a serious contradiction here. • The complainant said that she was afraid of the appellant and let him do it. She added that at first, she resisted and rebuffed him, but after the aggravated assault in October 1983, she was terrified.

She continued to rebuff him, but added, [ translation ] “more gently, it’s difficult to explain”. The appellant sees this as an inconsistency. I see it as a clarification. [ 77 ] Others concern only peripheral subjects: • The exact moment (June 1984, mid-September 1984, or late 1984–early 1985) when she disclosed the assaults to her brother B. and her cousin J. • In her written statement, she employed terms that could imply that she tried to speak with her mother while the assaults were ongoing, whereas at the trial, she explained that she did not do so because of her mother’s lack of receptiveness.

If there is a contradiction, the complainant gives a very plausible explanation on pages 542 and 543 of the record. • The details that were or were not given to her brother B. when she told him about the assaults. [ 78 ] Finally, many of the [ translation ] “implausibilities”, described by the appellant as follows, are in reality a different way of interpreting the evidence: • It is implausible that the appellant, who got along well with his sister, would suddenly begin assaulting her. • The appellant could not have been aggressive and violent while simultaneously telling the complainant during intercourse that she is beautiful and smells good. • The complainant exaggerates the sexual nature of the touching that occurred when other members of the family were present. • When she found out she was pregnant, the complainant told several people, even though she describes herself as an introvert. • It is implausible that the complainant does not remember the questions asked by the DYP worker.

Actually, she avoided this subject to avoid disclosing what was actually in the file. [ 79 ] The judge interpreted things differently, and this is not proof of an error. In Canadian law, appeals concern errors committed by the judge, not the different ways evidence can be interpreted, unless the judge’s

interpretation is the result of a palpable and overriding error of fact or of law that has an actual impact on the outcome. This is not the case here. [ 80 ] Some of the appellant’s other arguments do not take into account the evidence as a whole. For example, he argues that, on cross-examination, when the complainant began to describe the October 1983 assault, she did not mention that she kneed him, that he used a knife, or that he had a crazy look. She said instead that [ translation ] “it was the regular modus operandi ”.

This is not entirely correct. [ 81 ] A reading of the examination shows that, with respect to the regular modus operandi (or more specifically, the expression [ translation ] “always the same thing”), on pages 358 to 361 of the record to which the appellant refers, she is instead referring to prior assaults. Moreover, the judge and counsel for the prosecution stopped her and asked her to slow down, interrupting her testimony, but a few moments later (pp. 370 to 372), while still under examination, she provided all the details.

Also, she characterized the assault in October 1983 as [ translation ] “the most traumatizing”, clearly intimating that it did not unfold like the others, according to the same

modus operandi, to use the appellant’s expression. [82] As to the issue of when exactly the complainant cut ties with the appellant and, consequently, the moment when thepsychological harassment ended, the fact that she listed several dates does not constitute a significant inconsistency, since she explainedthat the process took place in many stages. [83] Overall, while the judge could have been more explicit, his conclusion was based on a reasonable

interpretation of the evidence. [84] The appellant also impugns the judge’s decision to request the filing of the complainant’s statement used to contradict her oncross-examination. However, he had the right to do so, especially to verify the inconsistencies raised, particularly when the cross-examination went on at length about these inconsistencies. This is a discretionary decision: s. 10(1) of the Evidence Act; R. v. Larue(1991), (BC CA), 65 C.C.C. (3rd) 1, (B.C.C.A.).

The appellant’s testimony [85] The judge explained his rejection of the appellant’s version as follows: [translation] [53] The Court has had the chance to see and hear the accused. His testimony was sorely lacking in transparency and credibility. Evenduring examination-in-chief, the accused searched for his words, hesitated, floundered, and fidgeted incessantly. This was even moreevident during cross-examination. [54] But there is more.

In light of the evidence as a whole, some of his statements are implausible or not credible. [55] His testimony as a whole is predicated on the fact that the sexual relations were consensual because they were in love. Yet, otherthan the sexual aspect, there is absolutely nothing in the evidence to confirm or corroborate this romantic relationship.

Among all thewitnesses heard in the case, none noticed a relationship that could be characterized as anything other than that of a brother and sister. [56] In the case of young people experiencing their first love, how are we to explain the absolute lack of intimacy, activities, gifts,games, and so on that go beyond intercourse? [57] A gentle touch when their paths cross, a caress, sweet talk? The accused denies any such acts. [58] If they were so in love, why did X not confide in her lover when her period was late?

It was either delightful news, or a disaster, butwould it not have been normal to inform the future father to face what may be together? [59] In his statement to the police, the accused said that the sexual relations began with X because they were often together and hewanted to experience sex for the first time. That is a far cry from the natural conclusion between two people in love, which isnevertheless the essence of his defence. [60] The accused claimed that he did not know that a romantic relationship between brother and sister was abnormal before being told bythe representative of the DYP.

In addition to the fact that such a claim is disconcerting because of the accused’s age at the time of theevents, it is inconsistent with his desire to keep the relationship in question secret for almost two years. It may be logical to want to keepthe sex hidden, but the love? It also contradicts his prior statement to police officers that, at the time, he was aware of his actions with X. [61] During his testimony, the accused denied several of the complainant’s allegations by stating that they were [translation] “completelyfalse”.

Let us take as an example the assault in the garage attic, where he lured his sister by appealing to her love of kittens.

In hisstatement to the police, he had no memory of this event, while in his testimony before the Court, this allegation had become completelyfalse because kittens can be found anywhere! [62] Not only is there a contradiction between his prior statement and his testimony before the Court, but the reason he gives to explainwhy the allegation is false is, to say the least, absurd. [63] As for the fact that his sister moved a desk against her door to stop the accused from entering her room to assault her, the accusedresponded that he had no idea, and added that it was completely false.

How can something be false if one has no knowledge of it? [64] During his testimony, the accused asserted that he and X never quarrelled. If we are to believe the accused that it was in fact aromantic relationship, how are we to explain the comment he made to the officers that this was about revenge because X had told himonce that [translation] “one day, he would pay for what he had done to her”? [65] When the police met with him in September 2006, the accused declared that X had always consented and added that he [translation]“never assaulted her with a knife”.

The investigator then told him that he had never mentioned any knife, to which the accusedresponded, [translation] “Well, I don’t know, I’m just saying that because earlier you said the charge of aggravated assault, so I thoughtof a knife”. [66] During his testimony, he explained this blunder by stating that before going to the station, his mother had asked him if he hadassaulted X with a knife.

Yet, when his mother testified, not only did she deny this conversation but, on top of that, she asserted thatwhen she met with the investigator, there was never any question of sexual assault, with or without an object. [67] For these reasons, his testimony lacks credibility and the Court rejects it. [86] Unlike the analysis of the complainant’s testimony, the analysis of the appellant’s testimony cannot be described as brief. Ittouched upon many points that grounded the conclusion. The judge explained at length why he rejected this version.

[87] The appellant is of the view that the judge was wrong to set aside his testimony, but has failed to prove a palpable andoverriding error. [88] The assessment based on the appellant’s behaviour or attitude while testifying and the appropriateness of the words [translation]“the accused searched for his words, hesitated, floundered, and fidgeted incessantly” is certainly questionable. Obviously, a judge maytake into account a witness’s behaviour and way of testifying: R. v. N.S., [2012] 3 S.C.R. 728.

However, the judge must not be undulyinfluenced by such a consideration and, among other things, must not base himself or herself solely on this observation: R. v. Rhayel,2015 ONCA 377; R. v. Z.Z., 2013 QCCA 1498 at paras. 79–71; R. v. R.P., 2010 QCCA 2237; R. v. R. (J.), 2006 QCCA 719; R. v.Chantal, [1998] A.Q. No. 3376 (C.A.); R. v. Norman, (1993) (ON CA), 26 C.R. (4th) 256 (Ont.

C.A.), especiallysince there is increasing recognition that such an approach may be flawed, as the authors Roach, Brown, Shaffer and Renaud point out: … There is also considerable research which shows that the cues which are most widely believed to be correlated with deception such asgaze aversion, smiling and fidgeting are in fact not associated at all. …[1] [89] As Vincent Denault notes in a very interesting recent book, [translation] “to distinguish liars from those telling the truth throughpassive observation of a witness’s non-verbal behaviour at trial without interjecting, asking follow-up questions, or requestingclarifications, is unjustified ...”.[2] [90] In other words, judges should take into account a witness’s behaviour only as the starting point of a more in-depth reflectionduring examination. [91] The judge in this case, however, did not limit himself to these observations.

He carried on with the rest of the evidence and, inthis respect, his assessment appears to be beyond reproach. The judge cannot be blamed for not believing the appellant when he claimedthat he never knew that his relationship with his sister was inappropriate before he was 20 years old, and then only through the DYP’sintervention, or when he explained why he denied using a knife in his statement to the police when the officer had not yet said anythingon the subject.

The statement that he was in love is also contradicted by the evidence as a whole, as the judgment clearly shows. [92] In fact, on this last subject, even though the appellant argues that the complainant would [translation] “cuddle” when they werealone, even referring to one occasion where she allegedly sat on his lap, I find that the essence of the judge’s conclusion remainsconsistent with the appellant’s testimony, that is, that he exhibited no or very little behaviour that was romantic other than sexualintercourse. [93] On another matter, the appellant believes that the judge erred by refusing, on re-examination, to let him read an excerpt fromhis statement to the Court that could have helped him explain another part of his statement that appeared incriminating.

The judge did notallow it, indicating that counsel could plead the point later since the statement had been adduced into evidence. Counsel took exceptionto this as the complainant had been allowed to do so when she was cross-examined, using her testimony from the preliminary inquiry. [94] The trial judge was correct to distinguish the two situations. The appellant’s statement was filed into the record following anadmission that it was admissible so that the parties could draw the judge’s attention to the relevant passages without having to ask thewitness to read them out loud.

In contrast, the transcript of the preliminary inquiry was not filed. This meant that the relevant excerptshad to be read to be considered. In short, these were two completely different situations and the judge was right to treat them differently. [95] Obviously, the judge could have let counsel proceed in this way. In fact, the discussion that followed was probably longer thanthe answer the witness would have given.

I cannot, however, see therein an inappropriate use of the judge’s discretionary power. [96] Ultimately, the appellant criticizes the judge for considering that his statement had been filed as proof of its contents when hepersonally thought that his admission was solely for the purpose of cross-examination. [97] Before he closed his case, counsel for the prosecution announced that, [translation] “following a discussion with my colleague”,he would file as exhibit P-2 the police officers’ notes relating a verbal statement made by the appellant.

Counsel for the appellantconfirmed that he admitted the free and voluntary nature of the statement and did not dispute that the right to counsel had been respected.At first glance, the statement was filed for proof of its contents, not just for the purpose of cross-examination. [98] There may have been a misunderstanding. It would have been better had it been clearly stated when the evidence was filed. Inany event, I can see no injustice.

Indeed, only one passage of the judgment indicates suggests that the judge may have used the statementfor proof of what the appellant states therein,[3] when all the other passages were essentially used to analyse his credibility. [99] In closing, the trial judge did not err in law as to the substance of the evidence or render an unreasonable verdict by erroneouslyassessing the appellant’s testimony. The other testimony and evidence [100] C.G. is B.L’s ex-wife. B.L. is the appellant and the complainant’s brother.

After saying that during her testimony [translation]“she prevaricated, hesitated, chuckled, appeared to take it all very lightly”, the judge rejected her testimony, recalling the following: [translation] [81] ... When she met with police officers in 2006, she claimed that during the discussion concerning the abortion, X had told her that shehad been assaulted by the accused. When confronted with this prior statement, she claimed that she no longer remembered it. How couldshe forget something like this?

Her testimony was complicit. [101] The judge could reasonably reach such a conclusion. [102] With respect to B.L., the judge could again reasonably write that he could not testify about family relationships during the

relevant period of time because he had left home in 1982. As the judge indicated, his failing memory made his version unreliable. [ 103 ] Contrary to the appellant’s argument, the judge adequately described the testimony of R.C., the appellant’s ex, and that of his cousin J.L., when he stated that nothing in their testimony corroborated the romantic relationship theory. According to the judge, the testimony of R.C. [ translation ] “can be summed up by the fact that she found the complainant was always trying to be where the accused was”.

He rejected this testimony, however, because of her animosity toward the complainant. This finding is within the scope of his role. [ 104 ] As for the cousin J.L., he testified that [ translation ] “the relationship between the accused and the complainant was good”. Contrary to what the appellant hinted at, however, this witness did not support the notion of a romantic relationship.

The judge clearly asked him the question toward the end of his cross-examination, a question which he answered in the negative on no fewer than four occasions. [ 105 ] With respect to the mother’s testimony, the judge could certainly decide that her testimony was complicit. In this respect, the judge reiterated that, [ translation ] “after being told that her 19-year-old son had had sexual intercourse with, and even assaulted, her underage daughter, she never held him accountable”, which supported his conclusion. [ 106 ] Finally, the revenge argument raised by the appellant is untenable.

As the judge indicated, there is no reliable evidence to support it. [ 107 ] In these circumstances, the appellant has failed to convince me of the merits of his argument that the judge did not take into consideration all the evidence and approached it in an unduly piecemeal fashion. Nor has he convinced me that the verdict is based on a palpable and overriding error of fact.

THE APPEARANCE OF PARTIALITY OF THE TRIAL JUDGE [ 108 ] Without limiting his argument to these incidents, the appellant targets two specific episodes during which the judge allegedly showed bias through his words or interjections: at the hearing on the motion for a stay of proceedings, and during the complainant’s testimony, particularly in cross-examination. [ 109 ] In his statement, the appellant repeatedly wrote that the judge showed [ translation ] “obvious bias”.

He contends that from the outset of the trial, at the hearing on the motion for a stay of proceedings, [ translation ] “the stage was set, the trial judge had already decided that the appellant was guilty on all counts ” [emphasis in original]. The appellant feels that, from then on, the judge had [ translation ] “lost all impartiality”. [ 110 ] As the Court recalled in R. v. Tremblay , 2014 QCCA 690 : [ translation ] [130] Findings of bias, real or apparent, must be rigorous. To show that a court is biased is therefore a perilous exercise that must be performed with great solemnity, because the bar is high.

Consequently, judges benefit from a strong presumption of impartiality and neutrality. It goes without saying that the onus of proving bias rests with the party who raises it. Compelling evidence must be adduced for appellate courts to intervene. [ 111 ] With respect to the voir dire on the motion, the complainant testified after the appellant. The incident of concern to the appellant began when counsel for the prosecution asked the complainant if she had thought about telling her mother about the assaults during the two years they took place.

She answered that she had thought about it but could not do so because her mother never believed her when she related incidents, even trivial ones, that involved her brother. Counsel for the appellant then objected, arguing that he could not see the usefulness of this line of questioning at this point in the proceedings.

The judge upheld the objection, saying [ translation ] “because I think that I already have a very good idea of the dynamics in place”. [ 112 ] A few minutes later, after a short cross-examination, counsel addressed the judge during closing arguments on the motion: [ translation ] Counsel: I am slightly bothered, Your Honour, by your remark. The Court: Which one? Counsel: When you indicated that you understood the dynamics. Am I given to understand that you have decided to believe the complainant when she explains the family dynamics?

The Court: What I said, is that with the evidence before me, I had an idea of the dynamics. Going into the details of this dynamic will not help me understand it any better. [ 113 ] The judge explained that he had a fair idea of the family dynamics and that [ translation ] “there was no need to go into further detail”.

He added that, in light of the appellant’s admission that there was sexual intercourse, it is likely that the dispute would be about consent, so he found [ translation ] “it difficult to see how you can convince me to order the disclosure of the documents in question, what is it going to change”? [ 114 ] There then followed an exchange during which the judge and counsel clearly did not agree on the admissibility, necessity, or even usefulness of the two files. The judge asked questions about the evidence, and the conversation became heated: [ translation ]

Counsel: Well, you are assuming that the facts are true, Your Honour. The Court: Stop saying that I’m assuming anything at all. It’s very unpleasant, I am not assuming, we are having a discussion. [ 115 ] The arguments are part of the trial and it is recognized that the judge must take them into account to form an opinion. It is also accepted that a judge may question or examine a party and let his point of view be known. This is what allows a party to respond to any concerns a judge may have. In other words, a frank discussion during final arguments has many advantages that cannot be denied.

It allows issues to identified, excess to be limited, and permits fair but efficient debate. [ 116 ] Moreover, judges do not have to listen to everything parties want to say just because they want to say it. [ 117 ] Proportion and balance are therefore the rule, and I do not see any indication here of apparent bias. It goes without saying that the fact that sexual intercourse was admitted had to be taken into consideration in the context of the motion. Was it determinative? We do not know.

This is what the judge said, in one way or another: I am not assuming, we are having a discussion; I understand the dynamics and any additional details are useless; you will have to convince me of the usefulness of these documents. There is nothing there that can support the appellant’s argument. [ 118 ] Moreover, it was following the presentation of evidence and thus after he became aware of the factual basis for the motion that the judge stated that it would be difficult to convince him.

He may very well have had a preliminary and provisional idea at that point which he wanted to convey to counsel, but it was not an indication of bias to inform counsel of the challenges he foresaw. [ 119 ] As for the statement that he had a good understanding of the family dynamics, this reflection arose when the prosecution wanted to prove details that, to the judge, were of no use for the purpose of ruling on the motion. Personally, I do not see the importance of the details of family relations in deciding whether the destruction of records could result in a stay of proceedings.

This was the spirit in which the judge indicated that he had understood the dynamics and particularly the complainant’s testimony that the mother sided with her son. Whether or not that is the case, the issue at that stage of the proceedings did not require a more in-depth examination. [ 120 ] Now, what about the complainant’s testimony during the trial itself? While the judge admittedly interjected frequently, this does not demonstrate an appearance of bias. Moreover, the cross-examination was not unduly limited. [ 121 ] The judge’s refusal to let counsel ask certain questions can be explained.

Here are some instances, which are obviously merely examples, all drawn from volume 3 of the evidence. [ 122 ] Sometimes, the witness had already answered the question (p. 495); other times, the question was not relevant, even with respect to credibility (p. 452, 500, 502, 505), or when the judge questioned the matter (p. 428, 500, 505) and listened to the arguments (p. 428 to 437); on occasion, the judge asked for the question to be clarified (p. 448, 449, 463, 504); sometimes the questions were impermissible (p. 467, 469, 527) or unduly repetitive (p. 495); sometimes the question was based on an alleged contradiction that was not truly a contradiction (p. 457, 458, 473) or was a contradiction that the judge did not see (p. 435, 537, 539).

I also point out that pages upon pages of the cross-examination pass without intervention (e.g., pages 386 to 412, where an objection by the prosecution interrupts then proceeds, then pages 413 to 419, pages 480 to 494 – except for a request for particulars – and pages 512 to 524). [ 123 ] In short, I do not see any ground for intervention due to alleged bias here, and the same is true with respect to the other testimony. [ 124 ] This leaves the judge’s interventions during final arguments.

Admittedly, he often argued with counsel for the appellant, and he even seemed to lose patience at one point because he felt that the argument was going on too long. Indeed, the final argument was long, in light of the duration of the trial. Obviously, this does not mean that the judge could unduly show his impatience. I am not at all convinced, however, that the arguments raised by counsel for the appellant were presented efficiently or in a targeted manner. In short, once again, the judge’s conduct does not demonstrate a reasonable apprehension of bias.

CONCLUSION ON CONVICTION [ 125 ] I am of the view that the trial judge correctly examined all the evidence, that he considered it as a whole, and that he did not perform a piecemeal assessment, as the appellant argues. He explained his reasoning clearly and certainly did not fail to analyze the question of consent, as the appellant maintains. By accepting the testimony of the complainant, who referred to assaults and even one aggravated assault, he clearly accepted the evidence of lack of consent.

Indeed, his remarks during the voir dire , summarized above, are ample demonstration of this fact: [ translation ] “I think that, unless I am wrong, the dispute will mostly concern consent”. [ 126 ] Finally, as I wrote above, I do not accept the argument of apparent bias or the argument that the DYP’s lack of involvement at the time means there were no assaults and no aggravated assault in particular. That is pure speculation. THE SENTENCE [ 127 ] In his written statement, the appellant asks the Court to intervene and substitute a conditional sentence for the four-year prison sentence.

To support his argument, he reiterates the position that the sexual intercourse was consensual because he and his sister were in love, which should have resulted in an acquittal on the charges of sexual assault, aggravated assault, and indecent assault, yielding only one conviction on the charge of incest. This theory must be rejected and, consequently, the principal arguments he raises have no merit. [ 128 ] During the appeal hearing, he maintained that the sentence is clearly unreasonable.

It might be justified, he claims, if the offences were committed when he was 48 or 49 years old, but surely not when he was only 18 or 19. The degree of maturity of a young man of 19 is what must be considered, and he contends that he would never have been given such a sentence at that age. In short, he argues that he is at a disadvantage because he was prosecuted 30 years after the fact, since he would have received a lighter sentence at the time.

[129] He contends that the trial judge simply imposed a sentence on a 50-year-old man, without making the necessary distinctions.Obviously, had he committed the offences at that age, he adds, the situation would be different. [130] In his view, the situation is exceptional, and the principles of deterrence and denunciation cannot be given the significanceaccorded by the judge.

He also lists several mitigating circumstances that the judge failed to consider sufficiently, such as his age at thetime of the offences, the time elapsed, the absence of prior convictions, the very low risk of recidivism, his complete rehabilitation, hiscooperation with the authorities, his contribution to society, his remorse, and the consequences for his family. [131] At sentencing, the judge summarized his thoughts as follows: [translation] [82] A conditional sentence should be set aside.

The consistent case law of the courts is that such a sentence is appropriate when thenumber of sexual acts is limited, not very serious, and committed against a single victim. Generally, the accused has pleaded guilty,expressed remorse, and undergone therapy, and the risk of recidivism is low.

In other words, in cases of sexual assault against minorswhile in a position of trust or authority, a conditional sentence will be used when the mitigating factors largely outweigh the aggravatingfactors. [83] After having weighed the aggravating and mitigating factors, the subjective and objective seriousness of the offense committed, andthe criminal responsibility of the offender, the Court is of the view that the accused is rehabilitated but, nonetheless, the Court must senda clear message of denunciation of this offence and general deterrence with a sentence that it deems just and appropriate, in light of allthe circumstances and the principles of parity of sentencing. [132] Admittedly, the sentence is harsh.

That is not a ground in itself for intervention because harshness does not necessarily entail areversible error. Appellate courts must show deference to trial judges in matters of sentencing, as Wagner, J. recently recalled in R. v.Lacasse, 2015 SCC 64 , [2015] 3 S.C.R. 1089: [11] This Court has on many occasions noted the importance of giving wide latitude to sentencing judges.

Since they have, inter alia, theadvantage of having heard and seen the witnesses, sentencing judges are in the best position to determine, having regard to thecircumstances, a just and appropriate sentence that is consistent with the objectives and principles set out in the Criminal Code in thisregard. The fact that a judge deviates from the proper sentencing range does not in itself justify appellate intervention.

Ultimately, exceptwhere a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may notvary the sentence unless it is demonstrably unfit. [133] Is there in this case a demonstrably unfit sentence or an error of law or principle that has an impact on sentencing? I do notbelieve so. [134] Despite the appellant’s argument, it has not been established that a sentence of this nature would have been unfit at the time. Forexample, in 1991, in R. v.

J. (F.G.), J.E. 91-1535, this Court dismissed the appeal from a judgment imposing a 40-month prison sentenceon a 19-year-old accused who had assaulted his 12-year-old sister. In my view, that judgment shows that a sentence of 48 months wouldnot have been ruled out at the time of the offences, especially since no weapon was used in that case. Similarly, in R. v. G.O.M., (NWT CA), [1991] N.W.T.R. 97, another judgment from 1991, the Court of Appeal for the Northwest Territories upheld afive-year prison sentence for an accused who had assaulted his younger sister over a four-year period.

In short, the appellant has failed toconvince me that the sentence would necessarily have been much more lenient had it been imposed contemporaneously. [135] Despite the appellant’s argument regarding the judge’s findings of fact, he could not have been unaware of his sister’s suffering,fear, and pain when he repeatedly committed the offences over a period exceeding 18 months. To this end, the assault with a knifesuffered by the complainant is not a trivial event.

The consequences of the appellant’s gruesome actions are known, and thecircumstances of the offence can be characterized as particularly serious. [136] The long-term consequences resulting from the appellant’s conduct are significant. The judge described them as follows: [translation] [74] Obviously, the victim still suffers today, despite the passage of time. She was particularly troubled, traumatized and distressed bythem. This is demonstrated by her statement regarding the consequences of the crime as well as her testimony during submissions onsentencing.

Nevertheless, her testimony, while very emotional, was characterized by restraint. [75] She was physically and sexually assaulted by an older brother she particularly liked. These assaults stopped only when she gotpregnant and had to have an abortion. [76] She did not receive her family’s support, even though she disclosed what he was doing to her at the time.

Of course her mother’sinaction when the complainant disclosed her brother’s abuse exacerbated the consequences. [137] Moreover, while there may not have been abuse of authority per se – in the parental meaning of the term – there wasundoubtedly abuse of trust, as the judge pointed out. [138] Furthermore, several of the mitigating circumstances raised by the appellant are not really mitigating, or at least do not have theweight he would give them. [139] While a lack of remorse and empathy is not usually an aggravating factor in and of itself, as the judge pointed out, because anaccused is free to contest his guilt, the fact remains that the appellant raises his remorse as a mitigating circumstance.

The question mustbe asked. His remorse is limited to acknowledging the negative effects of incest ([translation] "of making love to my sister”) and not theassaults. This is obviously in keeping with his version, but I certainly would not consider this sentiment to be a circumstance likely to

lighten the sentence. [140] Furthermore, the respondent writes in its statement that [translation] “his implausible submission, rejected by the judge, that helearned of the inappropriateness of his actions only through the DYP’s intervention cannot be included as a mitigating factor”. I sharethat view. That argument was quite rightly rejected by the judge, and obviously cannot constitute a mitigating circumstance. [141] As for his cooperation with the authorities, it is as qualified as his remorse. In his statement to the police, he admitted onlyincest.

Again, while this cannot be considered an aggravating circumstance, it cannot be considered a mitigating factor either. [142] With respect to the low risk of recidivism, his rehabilitation, and his lack of prior convictions, the judge took these into accountbut, in his view, denunciation and deterrence remained the primary objectives, as in R. v. Tremblay, 2010 QCCA 1434, where theappellant had abused his sister and brother some 40 years earlier. [143] The consequences for his family are also taken into consideration, but the judge added, citing R. v.

Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, that the collateral consequences of a sentence [translation] “cannot, and should not, ‘be misused byimposing inappropriate and artificial sentences’”.

He is right. [144] Moreover, I would also add that sometimes the absence of prior convictions is not determinative, as the Court stated in R. v.Tremblay, 2010 QCCA 1434: [translation] [8] A person’s lack of prior convictions when they are accused of sexual offences committed repeatedly against vulnerable persons isnot, at least in the circumstances of this case, a determinative factor. [145] The Court noted the same thing in R. v.

F.D., 2016 QCCA 173: [translation] [16] The appellant has failed to demonstrate that the weight the trial judge accorded to the absence of prior convictions as a mitigatingfactor is unreasonable in light of the importance of the aggravating factors.

For the purpose of the appeal, it is sufficient to state the mostsignificant of these: - the length of time during which the assaults were committed, when the complainant was 12 to 17 years old, that is to say the periodcovered by the indictment, from 1966 to 1971; - the number of assaults, including at least ten rapes with penetration over a period of five years and between 25 and 40 sexual assaults ofvarious kinds; - the abuse of trust, because even though the appellant was not in a position of authority in relation to the complainant, he ensured hersubmission and silence by threatening to have her mother beat her if she spoke up, by grabbing her by the neck so she would lie down,and by telling her he would reveal that she was the one who had burned her grandmother’s curtains so that she would submit to a finalunwanted act of intercourse; - the dramatic consequences of these assaults and the serious psychological consequences for the complainant, as demonstrated by thestatement she read at the sentencing hearing and by her testimony. [146] This leaves only the questions of the appellant’s age at the time of the offences and at sentencing, the interaction between thosetwo factors, and the appellant’s conduct over the last 30 years.

Let us consider how the judge addressed these topics: [translation] [58] Subsequently, the defence pled several judgments in which rehabilitation was the predominant factor favoured by the Court, in lightof the young age of the accused. [59] These judgments are of little relevance to the case before us.

The fact that the accused was 18 or 19 when he committed the offencesdoes not mean he should be sentenced as though he were a young man. [60] Although the age of the accused is a factor to consider with respect to his maturity when he committed the offences, the questiontoday is what is a fit sentence today for a 48-year-old offender who committed crimes almost 30 years ago. … [69] The abuse stopped after the victim reported it. According to the evidence, there has been no recidivism in almost 30 years. He iscertainly rehabilitated if we consider his development since the acts alleged stopped.

He married and fathered six children, two of whomhave unfortunately died, and has been an active member of society to this day. … [72] As the Court of Appeal of Quebec has often pointed out, such a delay is not exceptional in cases involving this type of offence. Itshould be pointed out that, in the case at bar, the victim reported the accused in 1984.

Not only did the accused abuse the situation toassault the victim, but he then benefitted from the laxity of their parents and the Director of Youth Protection to cover up his actions. [73] The time elapsed between the commission of the offences and the conviction is relevant where the accused’s life has stabilized andthere has been no recidivism. According to the evidence, the accused stopped sexually abusing his sister after she reported him. His

history shows that he has been an active member of society over the last 30 years. [147] Before going any further, I find it appropriate to make the following remark. The judge’s statement in paragraph 72, that theappellant benefited from the [translation] “laxity” of the [translation] “Director of Youth Protection to cover up his actions” is not basedon any evidence and is pure conjecture. This criticism of the DYP is pointless, to say the least, and possibly even unfair, since nobodyreally knows and can only speculate as to what led the agency to close the case.

The destruction of the file is a fact that must be takeninto consideration and explains the challenge or even impossibility of discovering the reasons behind the decision. By the same token, itcannot ground a claim that the appellant benefitted from that decision. [148] That being the case, how should a situation like the appellant’s be treated? [149] In R. v.

Paradis (1991), (NL CA), 92 Nfld. & P.E.I.R. 271, the Court of Appeal for Newfoundland was of theopinion that the sentence should not be limited only to contemporaneous factors: [10] We agree with the position taken by counsel for the Crown that the Provincial Court judge erred in law in imposing a sentencewhich reflected what an appropriate disposition would have been at the time the offences were committed. [11] As has often been stated, the principal purpose of the criminal process is the protection of society and one of the fundamentalpurposes of any sentence is to achieve that end.

In the imposition of sentence, a court must ensure that the sentence imposed is a fit one.Regard must be had to the offender, to the offence and to the interests of society, at the time of sentencing. It is only at the time ofsentencing, or at the time of a later review by an appeal court, that the elements of general and individual deterrence, punishment, andrehabilitation, and the degree to which any or all should be applied, can be considered in arriving at a fit sentence. [150] The Manitoba Court of Appeal expressed a similar opinion in R. v.

Fones (D.), 2012 MBCA 110: [60] The judge sentenced the accused in 2011 for offences he committed in the 1970s. Appellate jurisprudence required that he sentencethe accused in accordance with the provisions of the Criminal Code and the case law in effect at the time of the sentencing unless theywere inconsistent with statutory provisions to the accused's benefit (such as the maximum sentence of two years set out in s. 151 of the1975 Code). … [151] I agree with this principle, but it must be tempered.

Although the appropriate criteria are those contemporaneous withsentencing, the fact remains that delay, when not caused by the accused, whose conduct since has been exemplary, is frequentlyconsidered to be a mitigating factor. This was noted in R. v. A.R. (1994), (MB CA), 88 C.C.C. (3d) 184, anotherjudgment from the Manitoba Court of Appeal in a case of sexual assault that had taken place some 20 years earlier: [33] The antiquity of the offence is not usually a mitigating feature: see R. v. Spence (1993), 1992 ABCA 352 , 78 C.C.C. (3d)451 (Alta. C.A.).

Denunciation and general deterrence remain the predominant sentencing principles. As the Court said in Spence (at p.455): [I]f the court were to impose a lenient sentence because of the passage of time, some members of the community might regard thesentence as judicial condonation of the conduct in question.

That would tend to lessen respect for the administration of justice. [34] Nonetheless, where the delay in the reporting of the offence has not resulted from threats made by the offender or from otherattempts to suppress a complaint, the offender may be entitled to a somewhat reduced sentence if he has led an exemplary life during theintervening years and demonstrates genuine remorse. Such circumstances would obviate the need for individual deterrence and time forrehabilitation. [Emphasis added.] [152] This Court recalled the same principle in R. v.

J.L., (QC CA), [1998] R.J.Q. 971: [translation] [9] Among the factors used to measure an offender’s criminal liability for the purposes of sentencing for a sexual offence, it is relevant toconsider, inter alia: - The time between the commission of the offences and the conviction as a mitigating factor, depending on the conduct of the offender(offender’s age, social and professional circumstances, commission of other offences, and so on). ... [153] On the other hand, as the Manitoba Court of Appeal points out in R. v.

A.R., supra, to justify a more lenient sentence due todelay and exemplary conduct, there is also an expectation of sincere remorse. As stated before, this is not present in the appellant’s case. [154] In R. v.

F.D., supra, the Court, upholding a four-year prison sentence, said: [translation] [17] Furthermore, the trial judge was right not to consider the length of the 40 year gap between the offences and the conviction to be amitigating factor, even though the appellant has exhibited exemplary conduct during that period of time. [18] Frequently, as in this case, when sexual offences have been committed against children, the young victims, who are more fragile,easily swayed, and vulnerable, report the abuse only once they become adults, as happened here.

The objectives of denunciation anddeterrence must then take precedence. [19] Finally, the four-year prison sentence imposed on the appellant is at the mid-range of applicable sentences for offences of this type,which vary from two years less one day to six years, with the bulk of sentences falling between three to four years.

[ 155 ] In addition, the appellant’s young age at the time of the offences has always been taken into consideration, generally as a mitigating factor: see, for example, R. v. Camiré , 2010 QCCA 615 at paras. 68 to 71 . I do not see why the same should not be true when the offence was committed several years ago. [ 156 ] In this case, the judge acknowledged that the degree of moral responsibility that must be taken into account is that of a young man of 18 or 19 years of age, because he accepts the appellant’s age at the time of the offences as a mitigating factor.

He also took into consideration his post-offence conduct, his lack of prior convictions, the absence of risk of recidivism, and the indirect consequences of the sentence. He nevertheless found that deterrence and denunciation should be given precedence because of the nature of the offences, their frequency, their duration, the use of a weapon, the abuse of trust, and the long-term consequences, adding that the assaults ceased only because the complainant reported them when she learned that she was pregnant, and not because the appellant had any kind of moral awakening.

It is also clear that the judge took into account the conduct of the appellant, who, instead of helping his sister overcome the challenges that have arisen over the last 30 years, hid behind his mother’s skirts. [ 157 ] I do not see any reviewable error in the judge’s analysis or in the conclusions he drew therefrom. Certainly, as I said earlier, the result is harsh, and another judge might have chosen to impose a lighter sentence, insisting, for example, on the time elapsed and the rehabilitation, but that does not justify this Court’s interference.

The balancing exercise performed here does not reveal an error of law or principle, and did not result in a demonstrably unfit sentence. [ 158 ] For these reasons, I would grant the application for leave to appeal, but dismiss the appeal. FRANÇOIS DOYON, J.A.