2013 QCCQ 9808, 2013 QCCQ 9808

JD 2976 R. c. Moynan 2013 QCCQ 9808 COURT OF QUEBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF BEDFORD LOCALITY OF GRANBY "Criminal and Penal Division" N° : 460-01-024036-125 DATE : September 9 th , 2013 ______________________________________________________________________ PRESIDING: THE HONORABLE CLAIRE DESGENS J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix c.

Bobby Jo MOYNAN Defendant ______________________________________________________________________ JUDGEMENT ______________________________________________________________________ [ 1 ] The Court heard Mrs Moynan’s case concerning an alleged mischief that supposedly took place on December 29 th , 2011, in Granby as she’s being accused of damaging the victim’s car door with her keys. [ 2 ] The question in dispute is whether the Court entertains a reasonable doubt considering the version of the accused who denies having voluntarily committed the damages on the victim’s car with her keys. [ 3 ] It is a traditional question of credibility where the court must apply the fundamental principles of criminal law such as the presumption of innocence and the well-known rule of reasonable doubt.

P OSITIONS OF THE PARTIES [ 4 ] The Crown prosecutor suggests that the standard burden of proof was met with the testimony of Mrs Sandra Caron Gosselin, while the defence attorney suggests that the accused’s contradictory version is credible enough to raise a reasonable doubt in the Court’s mind. FACTS [ 5 ] As to the narrative of the facts, the Court will not go into details but suffice it to say that the two versions heard by the Court are not that different on many levels.

As a matter of fact, there are a lot of similarities in the events described by both the plaintiff and the accused. [ 6 ] All the events occurred in the context of a difficult separation between the accused and Mr Pascal Maurice, after a ten-year union, especially concerning their access rights to their daughter.

They had been separated a month prior to the events, in November and the accused had legal custody of their daughter. [ 7 ] The only witness heard by the Court concerning the accusation is the plaintiff, Mrs Caron Gosselin, Mr Maurice’s new girlfriend of two weeks, but also an ex-girlfriend of his. [ 8 ] That night of December the 29 th , it is admitted that Mrs Moynan came to Mr Maurice’s parents’ home where he lived to pick up her daughter who, according to the accused, had previously called her.

The accused admitted also that she took a shovel to knock on the door because nobody answered her first knock. [ 9 ] Mrs Caron Gosselin claims that she and Mr Maurice were alone that night but Mrs Moynan testifies in a very specific way that her daughter, after spending the day with her mom, the maternal grandmother, was supposed to spend the night with her dad and that’s why the accused went there to pick her up considering the fact that Mr Maurice decided, instead of spending time with her, to invite his

new girlfriend. [ 10 ] Both versions heard were to the effect that there was a verbal argument between Mr Maurice and Mrs Moynan just before she left. The accused admitted that some words were also exchanged between her and Mrs Caron Gosselin.

It was just after that argument, upon leaving, that the accused was seen by Mrs Caron Gosselin, taking her keys and using them to scratch the plaintiff's car door . [ 11 ] In Court, at trial, the witness was eloquent when saying that, on the night of the events, she had seen Mrs Moynan perfectly well through the living room windows, that it was well lit and that she had seen the keys in her right hand. [ 12 ] Cross examined by the defence attorney, it was also very clear that the plaintiff has added a lot of details during her testimony which had not been given to the police officers during their first meeting when she first filed a statement nor the second time a few months later.

ANALYSIS [ 13 ] The Court has to apply the principles developed by the Supreme Court in many decisions such as R. v. W.D., C.L.Y., Dinardo, and most recently in Vuradin where the Honorable Judge Karakatsanis explains the evaluation process for a trial judge: [21] The paramount question in a criminal case is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused: W.(D . ) , at p. 758.

The order in which a trial judge makes credibility findings of witnesses is inconsequential as long as the principle of reasonable doubt remains the central consideration. A verdict of guilt must not be based on a choice between the accused's evidence and the Crown's evidence: R. v. C.L.Y. , 2008 SCC 2 , [2008] 1 S.C.R. 5 , at paras. 6-8 . However, trial judges are not required to explain in detail the process they followed to reach a verdict: see R. v.

Boucher , 2005 SCC 72 , [2005] 3 S.C.R. 499 , at para. 29 . [1] [ 14 ] If I believe Mrs Moynan and the testimony that she put before the court, I must acquit her because her version is to the effect that she did not use her keys to damage Mrs Caron Gosselin’s car. [ 15 ] In that process, I have to weigh all the evidence.

I have to examine the accused's testimony in light of all the circumstances put before me in this case. [ 16 ] After reviewing Mrs Caron Gosselin’s testimony along with Mrs Moynan’s, I cannot put aside her version of the story and the fact that she denies having used her keys to cause damage to the car. Nothing allows the court to not consider her denegation. [ 17 ] In fact, the accused admitted that she was at her ex-boyfriend’s parents' house the night of the alleged action of mischief to pick up her 10-year-old daughter who was uncomfortable staying with her dad and his new girlfriend.

She admitted that she was willing to do what it took to bring back her daughter with her that night. [ 18 ] The two versions heard by the Court, the victim's and the accused's, are quite similar in many aspects except for the action of using the keys to damage the car. The accused says that when she left with her daughter, she had her keys in her hand, she was walking fast, in high heels, being afraid that Mr Maurice might follow her.

Then, she fell on ice near the car and that might have been misinterpreted by the plaintiff but she did not damage the car on purpose. [ 19 ] The Court has to point out, after seeing the accused testify that it appears that Mrs Moynan was sincere in her testimony.

Among other things, she did not try to hide the fact that she knocked on the door with a shovel, the fact that she and Mr Maurice argued and even fought over the fact that she wanted to bring her daughter back to her place, the fact that her daughter was crying, that harsh words were exchanged between her and the new girlfriend, the fact that she was mad at her ex boyfriend not to have chosen to take care of their daughter that night instead of being with his new girlfriend, the fact that she was the one who left Mr Maurice at the beginning of November, that she had legal custody of the child and that she already had a new boyfriend at the time of the events. [ 20 ] The Court reiterates the fact that it should not have to choose between two versions.

To evaluate all the evidence, I had considered the fact that the plaintiff added a lot of details to her testimony in Court that were not available in the previous statements that she made to the police, the first time, the night of the events and the second time, in March. This fact alone does not mean that things did not happen the way the plaintiff has testified. But it creates a doubt about a relevant fact of the case, namely the fact that she supposedly saw, perfectly well, the key in the hand of the accused.

That fact was remembered by the witness during the trial. [ 21 ] Despite that conclusion, this decision should not be interpreted as a judgment against the plaintiff. [ 22 ] The Court also has to weigh the proof of the nature of the damages that do not reflect, in the Court’s opinion, either the testimony of the accused, that maybe she accidently hit the car with her key or that of the plaintiff, that she saw the accused make one long scratch. But considering all the evidence served, the Court finds that this aspect of the case remains unsolved.

Those scratches as seen in the pictures filed under P-1 could have been made elsewhere, at another time. [ 23 ] So, even if it doesn't have to choose between two versions, the Court can state that it does find the version of the facts offered by the accused to be reliable. I find her testimony credible. [ 24 ] And I do have to remember that Mrs Moynan is presumed innocent. In this case, the Crown didn’t meet its burden to prove beyond a reasonable doubt the essential elements of the alleged crime. Neither the actus reus nor the mens rea of the mischief have been proven. FOR ALL THESE REASONS, THE COURT:

[ 25 ] ACQUITS the defendant of the charge laid against her. __________________________________ Claire Desgens, J.C.Q. M e David St-Georges Counsel for the prosecutrix M e Pascale Gauthier Counsel for the defendant