2023 QCCA 776, 2023 QCCA 776

Unofficial English Translation of the Judgment of the Court J.D. c. R. 2023 QCCA 776 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-007417-205 (550-01-106880-182) DATE: June 9, 2023 CORAM: THE HONOURABLE GENEVIÈVE MARCOTTE, J.A. JOCELYN F. RANCOURT, J.A. GUY COURNOYER, J.A. J. D. APPELLANT – Accused v.

HIS MAJESTY THE KING RESPONDENT – Prosecutor JUDGMENT WARNING: The trial court made an order under s. 486.4(1) Cr.C . directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way. [ 1 ] The appellant appeals against a judgment rendered on February 5, 2020, by the Court of Québec, Criminal and Penal Division, District of Gatineau (the Honourable Gaston Paul Langevin), which found him guilty of sexual interference on a person under the age of 16 years within the meaning of s. 151 (

a) Cr.C . [1] * * * [ 2 ] The complainant was born on [...], 2004. Her mother, C. P., has been the appellant’s partner since 2007-2008.

Since she was young, the complainant has lived in an apartment with her two brothers, her mother and the appellant. [ 3 ] Both events that gave rise to the charge of sexual interference brought against the appellant occurred when the complainant was approximately 12 years old. [ 4 ] At trial, only the complainant and her mother were called to the stand. * * * [ 5 ] For a proper understanding of the case, it is important to describe these events. [ 6 ] During the first event, the complainant was lying in her bed on her side; she was sleeping. She was wearing a coloured “nighty” (nightgown) and black underwear.

The appellant entered her room to check if she was asleep. He kneeled on the bed, positioned himself behind her and put an arm around her shoulders. He lowered her underwear and inserted two or three fingers in her vagina, moving them “from side to side” and then penetrating them into her vagina with “a digging motion”. She was frightened. The appellant left the room without saying anything and the complainant fell asleep in a state of confusion.

The following morning, the appellant once again entered her room and told her not to tell anyone what had happened the previous day. [ 7 ] During the second event, the complainant was lying in her bed on her side, trying to fall asleep. The complainant slid in behind her. He lowered the zipper of her onesie, pulled it down to below her knees and lowered her black underwear to the same height. He unfastened her pink sports bra, fondled her breasts and once again inserted his fingers in her vagina with the same movements, namely “from side to side” and with a “digging motion”.

She understood that these actions had a sexual connotation and that all of this was wrong. The following morning, the appellant entered her room and asked her not to speak to anyone about this. He promised to give her things if she kept quiet. * * * [ 8 ] In his first ground of appeal , the appellant claims the judge applied a reduced standard of proof when dealing with the testimony of the complainant, who was 15 years old at the time of the trial. In other words, the judge allegedly justified all the

weaknesses in the complainant’s testimony based on the fact she is a child.

The appellant submits that this is an improper use of the framework for assessing a child’s testimony. [ 9 ] To support his contention that the judge applied a reduced standard of proof, the appellant points to the following elements: (1) the complainant’s contradiction regarding her position and that of the appellant in the bed; (2) her contradiction regarding the manner in which the appellant lowered the zipper of her onesie and pulled down her underwear; (3) her contradiction regarding the duration of the appellant’s actions: 30 minutes according to her deposition at the preliminary inquiry, and no more than a few minutes according to her testimony at trial; (4) her contradiction regarding the receipt of a text message from the appellant that she reported to investigator Édith Germain; and (5) her failure to tell investigator Robin Fortin that she was wearing a bra at the time of the second event. * * * [ 10 ] It is well established that a trial judge’s assessment of the credibility of witnesses is a question of fact to be reviewed on the standard of overriding and palpable error.

As the Supreme Court recently reiterated in R. v. Brunelle , this assessment will be rejected only where it “cannot be supported on any reasonable view of the evidence”. [2] In the same vein, it is important to consider the privileged position of the trial judge – who is the only one having seen and heard the witnesses – and to show particular deference to his credibility assessment. [3] [ 11 ] In addition, the credibility of a child’s testimony must not be assessed like that of an adult. As McLachlin, J. (as she then was) noted in R. v.

W. (R) : “Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection.” [4] A child’s testimony may contain inconsistencies and inaccuracies on peripheral elements. [5] However, “ this is not to say that the courts should not carefully assess the credibility of child witnesses”, [6] but rather that “we approach the evidence of children not from the perspective of rigid stereotypes , but on what Wilson J. called a ‘common sense’ basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case”. [7] [ 12 ] Lastly, in the Supreme Court ruling in R. v.

G.F. , Karakatsanis, J. stated that appellate jurisdictions should apply a functional and contextual reading of trial reasons, and “ should consider not whether the trial judge specifically used the words ‘credibility’ and ‘reliability’ but whether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns”. [8] * * * [ 13 ] Let us consider the appellant’s first ground of appeal in greater detail and, more specifically, the way in which the judge assessed the alleged contradictions in the complainant’s testimony. 1.

The complainant’s position and that of the appellant in the bed [ 14 ] The judge found no contradictions in the complainant’s testimony about her position and that of the appellant in the bed. In his analysis, which he based on the evidence, he was able to reconcile the explanations the complainant gave in her videotaped statement with those she gave at trial: She was cross-examined in great detail about a drawing that she made.

She described he was sitting at the end of the bed and the Defence was arguing that: “Yes, but you’re saying that he was kneeling” and then she explained “no”. […] And the victim patiently explaining that, well, he was at the end of the bed and he moved closer to me and I think, I didn’t see him, but I think he was on his knees to get closer to the centre of the bed for the first event. So, that’s how she explained things. She never mentioned he was kneeling either over her or somehow. [9] [ 15 ] Thus, contrary to the appellant’s contention, the complainant did not contradict herself at trial.

She specified that the appellant positioned himself behind her after sitting on the bed: “Yeah, he sat at the end of the bed and then he went behind me”. When confronted with her drawing showing the appellant at the foot of the bed, the complainant reiterated that he moved before inserting his fingers in her vagina. The judge did not commit a reviewable error in accepting the sequence provided by the complainant at trial. [ 16 ] As for the complainant’s position during the second event, she testified that she was lying on her side at the time of the digital penetration.

In this context, the fact that an uncertainty persists – that is, whether, at the time the appellant entered the room , the complainant was on her back or side – is not determinative. The judge was entitled to conclude that this was a detail that did not affect the complainant’s credibility. 2. The undressing [ 17 ] The appellant claims the judge used an incorrect inference – i.e., that the complainant was terrified at the idea the assault might intensify – to justify the complainant’s inability to provide details about how the appellant undressed her: But she doesn’t know how he did that.

She just knows that he did that. She is terrified at this point, the second time, that he’s going to go further, meaning further aggress her. She’s not focussing on how he did it . Obviously she said she was letting him do it.

He unzipped her and she explained how he untied her bra and how she was making her kind of, making believe that she was sleeping, so she was passive. [10] [Emphasis added] [ 18 ] The complainant, admittedly, did not express the terror that the judge refers to in his judgment when stating that: “She is terrified at this point, the second time, that he’s going to go further, meaning further aggress her”. She did, however, say she was scared during the events.

[ 19 ] As the Supreme Court noted in R. v.

G.F. , one “must not finely parse the trial judge’s reasons”. [11] Instead, one must assess “whether the reasons, read in context and as a whole” [12] provide a means for explaining the trial judge’s decision and his reasons for deciding that way. [ 20 ] Notwithstanding this factual mistake, a contextual reading of the judge’s reasons leads us to conclude that he accepted the complainant’s clear and plausible version to the effect that her onesie had a front zipper, which the appellant lowered while he was behind her, and that then “[h]e pulled it down” below her knees. [ 21 ] As to the manner the appellant pulled down the complainant’s underwear, the judge stated: The underwear.

Well, when I say minute detail in the cross-examination, this is a good example. She was asked while he was fondling her, he pulled down her underwear. She was asked: “Did he start by pulling the front of the underwear down, the side of the underwear down or the back of the underwear down”? This is a twelve (12) year old child. Really?... we really expect that a twelve (12) year old child being sexually assaulted by someone will recall this? Of course she doesn’t recall this.

The only thing she recalls is he pulled them down and he stuck his finger into her vagina. [13] [ 22 ] The judge did not commit a reviewable error by not drawing a negative inference about the complainant’s credibility due to this lack of precision.

The judge was entitled to consider the complainant’s particular perspective, which was shaped by her young age at the time of the events, and assess her testimony based on the less stringent standard that applies. [14] Admittedly, it would have been wiser for the judge not to make a generalization about the reaction a 12-year-old child should have had in such a situation.

When placed in the context of the record as a whole, however, this comment does not render his reasoning unintelligible because, in the same passage, the judge remains convinced beyond a reasonable doubt that the appellant lowered the complainant’s underwear to below her knees and inserted his fingers in her vagina. 3. The duration of the touching [ 23 ] The judge acknowledged the inconsistencies in the complainant’s testimony about the duration of the touching. He concluded, however, that this was a peripheral detail with no impact on her credibility: [15] How long did it last?

Well, once again she says half an hour at the Preliminary Inquiry. At trial she says again as she did say in the video, she doesn’t know, it was short. Yes, she acknowledges that she read the transcript. I said, yeah, I see it and I said half an hour. But she maintained: “Well, it was short.” And in Court and in trial she said minutes. [16] [ 24 ] The judge was well aware of this contradiction, which he gauged in light of the whole of the evidence and the complainant’s age at the time of the events.

He considered that a young girl could not be faulted for not remembering the exact duration of an assault suffered three years earlier. There is no reviewable error in this determination. 4. The text message [ 25 ] During a meeting with the complainant, investigator Édith Germain allegedly wrote the following in her notes: “Dit qu’un message de J. lui demandant de ne pas en parler. Arrivé la deuxième fois, lui a envoyé par texte, elle a répondu : ‘O.K.’, car elle avait peur qu’il soit fâché” / [ translation : “Says a message from J. asking her not to talk about it.

Happened the second time, sent it to her by text, she answered: ‘O.K.’, because she was afraid he would be angry”]. At trial, the complainant testified that she had not discussed the events with the appellant by text message and that she did not remember the message to which she had allegedly referred during her meeting with Ms. Germain. [ 26 ] The judge noted this lapse of memory, [17] but drew no negative inference therefrom regarding the complainant’s credibility.

The appellant faults the judge for precisely that, arguing that the complainant’s honesty should have been called into question due to this contradiction. [ 27 ] It is difficult to fault the judge for not drawing a negative inference from this apparent inconsistency, given that the transcript of investigator Germain’s notes was not filed into evidence nor was she called as a witness. The fact that the complainant’s mother, C. P., testified that she had not seen any message of this kind between the complainant and the appellant is of little importance because the judge rejected her testimony.

The judge did not commit a reviewable error in this regard. 5. The bra and clothing [ 28 ] In her videotaped statement, the complainant did indeed fail to mention that she was wearing a bra at the time of the second event, which she indicated at trial. The appellant is of the view that the judge committed an overriding error in dwelling on the reasons why the complainant would lie about this element. The appellant claims the error is determinative because it results in a reversal of the burden of proof.

Here is what the judge had to say on this subject: When you look at it from a detached point of view, what strikes me is that this, [if] all this is a lie, she didn’t have to invent a bra. She didn’t have to invent hooks. [18] [ 29 ] In his judgment, the judge correctly set out the prosecution’s burden of proof.

The judge’s words, while perhaps clumsy, did not have the effect of reversing the burden of proof and placing the burden on the appellant to establish that the complainant had a reason to lie. [ 30 ] If the judge’s words are put in the context of the record as a whole, one sees that he found that the appellant had fondled the complainant’s breasts. Indeed, the judge indicated that the complainant’s testimony about how the appellant undid her bra and touched her breasts was very clear and detailed.

[ 31 ] As for the type of bra the complainant was wearing and the way in which it could be put on, the judge did not find this detail to be important. He rejected the testimony of the complainant’s mother in which she had said that her daughter did not wear a bra with hooks. The degree of precision the appellant expects regarding the type of bra obscures the general clarity of the complainant’s testimony on this subject.

Indeed, the complainant did not change her description of the bra as and when she testified but explained, at trial, that it was a pink sports bra with a plastic hook at the back to tighten or loosen the bra. She stated on more than one occasion that the appellant unhooked it from the back to loosen it and pulled it down in order to touch her breasts.

The judge found the complainant to be sincere and there is no basis for altering this finding. [ 32 ] Ultimately, a review of each of the contradictions alleged by the appellant indicates that the judge did not apply a reduced standard of proof to the complainant’s testimony. He assessed her testimony based on the legal principles applicable in respect of a child who was approximately 12 years old at the time of the events, and he found that the weaknesses in the testimony pertained to peripheral details.

This ground is dismissed. * * * [ 33 ] In his second ground of appeal , the appellant argues that the judge erred in failing to analyze the reliability of the complainant’s testimony. [ 34 ] In R. v.

G.F. , the Supreme Court cautioned appellate courts to consider not whether the trial judge used the words “credibility” and “reliability”, but rather whether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns. [19] [ 35 ] The Court is of the opinion that the trial judge turned his mind to the relevant factors that go to the believability of the evidence.

All in all, he held that the complainant had given “coherent clear direct testimony”, despite certain weaknesses, and the appellant is mistaken in arguing that the judge failed to consider the reliability of her testimony. [ 36 ] This ground is also dismissed. * * * [ 37 ] All things considered, the Court is of the opinion that the judge properly assessed the credibility and reliability of the complainant’s testimony. He gave proper consideration to her age at the time she testified and at the time the events occurred.

He meticulously examined each detail in the evidence and the weaknesses in the complainant’s testimony and concluded that it was “coherent clear direct testimony”. It is therefore incorrect to claim that he excused all the weaknesses and deficiencies in her testimony.

Rather, he justified them by relying on the evidence presented at trial. [ 38 ] Ultimately, the appellant has failed to convince the Court that the trial judge’s assessment of the credibility and reliability of the complainant’s testimony “cannot be supported on any reasonable view of the evidence”. [20] FOR THESE REASONS, THE COURT: [ 39 ] DISMISSES the appeal. GENEVIÈVE MARCOTTE, J.A. JOCELYN F. RANCOURT, J.A. GUY COURNOYER, J.A. Mtre Julia Blais-Quintal yves ménard avocats For the appellant Mtre Isabelle Bouchard director of criminal and penal prosecutions For the respondent Date of hearing: February 8, 2023