2023 QCCA 1253, 2023 QCCA 1253

R.W. c. R. 2023 QCCA 1253 COURT OF APPEAL CANADA PROVINCE OF QUÉBEC REGISTRY OF MONTREAL No: 500-10-007000-191 (500-01-138854-168) DATE: 5 October, 2023 CORAM: THE HONOURABLE MARTIN VAUCLAIR, J.A. PATRICK HEALY, J.A. CHRISTINE BAUDOUIN, J.A. R. W. APPELLANT – Accused v.

HIS MAJESTY THE KING RESPONDENT – Prosecutor JUDGMENT WARNING: Order restricting publication under s. 486.4 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 directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way.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 was found guilty of the following counts: • Sexual interference of a person under the age of 16 years [1] between 1 June 2012 and 8 August 2012 (Count 1); • Sexual interference of a person under the age of 16 years [2] between 9 August 2012 and 14 August 2013 (Count 2); • Invitation to sexual touching of a person under the age of 16 years [3] between 1 June 2012 and 8 August 2012 (Count 4); • Sexual interference of a person under the age of 16 years [4] on 14 December 2013 (Count 6); • Sexual interference of a person under the age of 16 years [5] on 29 April 2009 (Count 7). [ 2 ] For the reasons of Vauclair, J.A., with which Baudouin and Healy, JJ.A. concur, and for additional reasons by Healy, J.A., THE COURT : [ 3 ] DISMISSES the appeal.

MARTIN VAUCLAIR, J.A. PATRICK HEALY, J.A. CHRISTINE BAUDOUIN, J.A. Mtre Catherine Soucy For the Appellant Mtre Bruno Ménard DIRECTOR OF CRIMINAL AND PENAL PROSECUTORS For the Respondent Date of hearing: March 27, 2023

REASONS OF VAUCLAIR, J.A. [4] I have read my colleague's reasons and, like him, I conclude that the appeal must be dismissed. However, for my own reasons, Iam of the opinion that the analysis should be strictly limited to the grounds of appeal raised by the appellant that are more, in my view,about misapprehension of evidence. [5] The appellant essentially raises errors in the evaluation of the evidence and alleges insufficient reasoning in the judgment. Thefirst issue concerns the assessment of his own testimony.

In his view, the judge erred in failing to assess it in light of all the evidence.The second issue is the error in assessing the opposing evidence by applying uneven scrutiny. [6] One must not lose sight of the fact that the appellant was found guilty of sexual offences against three minors, the nieces of hiscommon-law partner, with whom he had three daughters. The crimes took place between 2009 and 2013 and, at the time, the threecomplainants were between 8 and 15 years old. The nature of the allegations against the appellant ranges from an invitation to sexualtouching to full intercourse.

The trial was mainly held over 5 days in August and September 2017 and the appellant, not represented afterOctober of that year, made several motions that occupied the trial judge until June 2018. A detailed forty-three-page judgment was filedon January 29, 2019. [7] Like my colleague, I find the reasons sufficient. Not because of their length, of course, but because – contrary to the appellant’sargument – one can readily understand what the judge decided and why that decision was made: R. v.

R.E.M., 2008 SCC 51 ,[2008] 3 S.C.R. 3, para. 17. [8] It bears repeating that “[e]xplaining the ‘why’ and its logical link to the ‘what’ does not require the trial judge to set out everyfinding or conclusion in the process of arriving at the verdict”: R. v. R.E.M., 2008 SCC 51 , [2008] 3 S.C.R. 3, para. 18. [9] The fact that the trial judge did not set out each of her findings is not a demonstration that, in arriving at her decision, shecompletely disregarded the rest of the evidence. I am convinced that the trial judge did not do so.

More detail may be necessary wherethe trial judge is required to “address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a keyissue”: R. v. R.E.M., 2008 SCC 51 , [2008] 3 S.C.R. 3, para. 44.

But as my colleague notes, the trial judge did explain herreasons for disbelieving the appellant’s general denial of the complainants’ allegations as well as the exculpatory elements of histestimony. [10] The appellant asserts that the trial judge failed to properly consider the core elements of his defence, namely the absence of arealistic opportunity for him to commit the offences, the fact that some of the complainants’ allegations defied “common sense andhuman experience”, and the “collusion” between the crown witnesses. [11] These assertions are based on an evaluation of the plausibility of the evidence, not on specific elements that might point to theirexistence.

The appellant’s argument, therefore, rests squarely on the weight to be given to the evidence, not on a palpable and overridingerror.

I cannot give effect to that ground. [12] As for the second ground of appeal, a ground difficult to establish, I agree entirely with my colleague that “[t]he appellant has notdemonstrated a qualitative discrepancy in the standards of assessment applied by the trial judge to the testimony of prosecution anddefence witnesses in this case”: para. 33 of his reasons. [13] I specifically reject the contention that the trial judge could not give weight to the audio recording of a conversation with one ofthe complainants, a recording the appellant had the opportunity to comment on and even explain.

In the end, there is no error in the trialjudge having accepted that the appellant admitted to sexual activities with one of the other complainants. The trial judge could also,without error, assess a partial “text conversation” as having little probative value. Although the complainant involved in the "textconversation” confirmed its content, the trial judge, in any event, did not find the contradiction resulting from the “text conversation” tobe material in the circumstances. [14] The appellant has failed to indicate any specific part of the evidence or arguments that the trial judge did not address.

Whenconfronted with a detailed description of events over a period of years, it becomes difficult if not impossible, and probably useless, toreport and comment on every aspect. It is sufficient for a trial judge to be responsive to the evidence and the arguments made at trial.That is what the trial judge did. I see no error here. [15] I would dismiss the appeal. MARTIN VAUCLAIR, J.A.

REASONS OF HEALY, J.A. I Introduction [ 16 ] If the Supreme Court had not characterised the reasonableness of a verdict as a question of law, [6] the issues raised by the appellant in this case would be considered questions of fact or mixed questions that require leave and the demonstration of palpable and overriding error.

It is nevertheless well settled that the Court will not intervene on these questions unless it is satisfied that a reasonable trier of fact, acting judicially and in accordance with applicable principles, could not have found the appellant guilty upon a thorough assessment of all the evidence. [7] [ 17 ] In this case of conflicting evidence the trial judge carefully followed the method proposed by the Supreme Court in W.(D.) . [8] She concluded that the evidence of the defence did not raise a reasonable doubt [9] and that an assessment of all the evidence proved beyond reasonable doubt the guilt of the accused on seven of the nine counts charged against him. [ 18 ] The appellant formulates the issues in appeal as follows: The trial judge erred by not resolving why the testimonies of defense witnesses, notably the appellant, do not raise a reasonable doubt in light of the evidence globally.

The trial judge erred when she applied different standards to assess the credibility of defense and prosecution witnesses. [ 19 ] These issues are linked and overlap because they are essentially formulations that concern the determination whether an assessment of the whole of the evidence, including issues of credibility, [10] raises a reasonable doubt. [11] As framed in substance, but in other words, these questions affirm that the verdict was unreasonable but they do not otherwise particularise the errors of law advanced by the appellant.

They appear to assert that the verdicts were unreasonable because of the manner in which the trial judge applied the appropriate principles in her evaluation of the evidence. In this respect, the issue as framed by the appellant resembles the manner in which the Supreme Court approached the appeal in Shepherd : As with any issue on appeal that requires the court to review the underlying factual foundation of a case, it may understandably seem at first blush as though the issue […] is a question of fact.

However, this Court has repeatedly affirmed that the application of a legal standard to the facts of the case is a question of law: see R. v. Araujo, 2000 SCC 65 , [2000] 2 S.C.R. 992, at para. 18 ; R. v. Biniaris, 2000 SCC 15 , [2000] 1 S.C.R. 381, at para. 23 . [12] [ 20 ] When characterised as a question of law, the reasonableness of a verdict remains heavily dependent upon a consideration of the factual assessment required of the trier of fact in a thorough examination of the evidence. This is especially clear in the application of the method set out in W.(D.) .

In this and other tests of the sufficiency of evidence that focus on the credibility of witnesses and the reliability of evidence, the Supreme Court and other appellate courts have insisted that triers of fact be accorded a high measure of deference. [13] II The framework of sections 675(1)(

a) and 686(1)( a ) [ 21 ] I wish first to explain why in my view this case does not meet the analytical requirements of review of appeals against conviction in indictable matters. In doing so I stress my agreement with the disposition of this appeal proposed by Justice Vauclair and with his reasons. These further comments are prompted because this case raises concerns that are often observed in this Court. [ 22 ] There is a difference between the questions that must be answered to bring an appeal against conviction and the questions that must be answered for an appeal to succeed. A court has jurisdiction to hear an appeal only if it meets one of the criteria listed in section 675(1) (

a) of the Criminal Code . If the appeal is brought as of right the appellant and the Court must be able to identify a question of law in issue; and the mere assertion of a question of law will not suffice. [14] Although section 675(1)( a )(

i) does not stipulate that an appeal as of right may be brought only on a question of law “alone,” it is clear that this restriction applies because the entitlement to appeal as of right exists to the exclusion of questions of fact or mixed questions, which also excludes questions about how to weigh evidence or test its sufficiency. [15] If leave is required the appellant and the Court must be able to identify the question of fact or the mixed question that is proposed for examination. [16] Assuming that these jurisdictional criteria are satisfied, an appeal can only succeed if it meets one of the criteria enumerated in section 686(1)( a ): does the appeal demonstrate an unreasonable verdict, an error of law or a miscarriage of justice?

These questions overlap in various respects, but each must be given meaning and at least one must be established in accordance with applicable principles before an appeal can be granted. The jurisdictional questions in section 675(1)(

a) also overlap with the questions for disposition in section 686(1)(

a) but the two remain conceptually distinct because the first are concerned with jurisdiction to hear an appeal and the second are concerned with the powers of a court to dispose of an appeal that has been heard. The ticket “in” and the ticket “out” are not the same ticket.

Despite the many difficulties in defining and distinguishing the questions raised in these two provisions, the coherence of criminal appeals requires rigorous adherence to them. [ 23 ] The jurisdiction of an appellate court to hear and decide cases is statutory and to exercise that authority the court must be able to ascertain both the basis on which a case is brought and the basis on which it will be resolved. In this case I am unable to discern with confidence either the grounds of appeal under section 675(1)(

a) or the power on which the appellant relies under section 686(1)( a ). The

appeal is brought without leave and must therefore advance a question of law. Justice Vauclair suggests that the appellant argues that the trial judge misapprehended the evidence and that characterisation is consistent with the arguments addressed by the appellant. But it is settled that not every error identified in an appeal will justify a remedy in favour of the appellant. [17] A remedy be granted under section 686(1)(

a) only if the question of law demonstrates un unreasonable finding of guilt, an error or a miscarriage of justice. Assuming that the appellant in this case claims that the trial judge misapprehended the evidence, it would appear implicit that he also claims that a reasonable trier of fact acting upon applicable principles could not find in the evidence proof of guilt beyond reasonable doubt. This would seem to assert an unreasonable verdict or an error of law, or both, or perhaps even a miscarriage of justice.

The appellant’s submissions do not identify which of these conclusions might apply; nor do they demonstrate a material misapprehension of the evidence that amounts to a question of law as opposed to an assessment of its sufficiency. [18] [ 24 ] But the appellant’s case does not allow me to ascertain either the grounds upon which the appeal is brought or the reason for which the appellant seeks relief against the findings of guilt by the trial judge.

In my view it is difficult to conduct a fully informed assessment of the merits of this appeal because the case as presented leaves the Court with too much guesswork about the statutory basis of its jurisdiction or the powers invoked by the appellant. Without a clear exposition of this legislative framework and the relevant jurisprudence, the Court is left to review the judgment in first instance at face value and in a manner that appears to invite a rehearsal of the factual assessment by the trial judge.

Unless that exercise discloses an unreasonable conclusion, the appeal must be dismissed. [19] III The trial judge’s assessment of the evidence [ 25 ] The reasons of the trial judge demonstrate that she reviewed the evidence at length and subjected it to a searching evaluation of its probative strengths and weaknesses.

She positively identified many aspects in the evidence of the prosecution and the defence that merit particular attention, including many details that bear on her consideration of the credibility of the witnesses and the reliability of their evidence. [ 26 ] It would be difficult, if not impossible, for this Court to conclude that the trial judge made errors in her assessment of the evidence without substituting for her scrupulous analysis a fresh assessment of its own.

Substitution of this nature is not part of the Court’s function in examining the reasonableness of the verdicts at trial. [20] This Court can intervene only if the trier of fact omitted to consider essential elements of the evidence or attached to them a probative value that they cannot logically or reasonably bear, [21] even in the absence of an extricable error. [22] [ 27 ] The extensive reasons of the trial judge explain in detail her assessment of the evidence provided by all the central witnesses, and especially the appellant and the complainants.

She emphasises at several points that despite her ruling to admit evidence of similar acts she excludes the use of such evidence from her analysis. She enumerates frailties in the evidence of the various witnesses and explains her reasons for attributing varying degrees of probative value to their testimony.

She notes the passage of time between the alleged events and the time of trial and, while doing so, reminds herself that the young age of the complainants requires caution. [ 28 ] The trial judge enumerated several reasons why she rejected the appellant’s denial of the complainants’ allegations and the exculpatory elements of his testimony: • his denigration of the complainants and their families; • his attempt to minimize his bond with two of the complainants; • his efforts to “make himself out to be the victim”; • his apparent collusion in discussing the case with other witnesses; • his self-flattery; • the frequent adjustments in manipulating his testimony. [ 29 ] These are only some examples to which the judge calls attention. [ 30 ] In G.F. the Supreme Court reviewed the applicable standard in testing the sufficiency of a judge’s reasons: [69] This Court has repeatedly and consistently emphasized the importance of a functional and contextual reading of a trial judge’s reasons when those reasons are alleged to be insufficient: Sheppard, at paras. 28-33 and 53 ; R. v.

Gagnon, 2006 SCC 17 , [2006] 1 S.C.R. 621, at para. 19 ; Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 , [2007] 3 S.C.R. 129, at para. 101 ; R. v. Dinardo, 2008 SCC 24 , [2008] 1 S.C.R. 788, at para. 25 ; R. v. R.E.M., 2008 SCC 51 , [2008] 3 S.C.R. 3, at para. 15 ; R. v. Laboucan, 2010 SCC 12 , [2010] 1 S.C.R. 397, at para. 16 ; R. v. Vuradin, 2013 SCC 38 , [2013] 2 S.C.R. 639, at paras. 10 , 15 and 19; R. v. Villaroman, 2016 SCC 33 , [2016] 1 S.C.R. 1000, at para. 15 ; R. v. Chung, 2020 SCC 8 , at paras. 13 and 33 .

Appellate courts must not finely parse the trial judge’s reasons in a search for error: Chung, at paras. 13 and 33 . Their task is much narrower: they must assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they

decided that way in a manner that permits effective appellate review. As McLachlin C.J. put it in R.E.M., “The foundations of thejudge’s decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of howthe trial unfolded”: para. 17. And as Charron J. stated in Dinardo, “the inquiry into the sufficiency of the reasons should be directed atwhether the reasons respond to the case’s live issues”: para. 31. […] [71] The reasons must be both factually sufficient and legally sufficient.

Factual sufficiency is concerned with what the trial judgedecided and why: Sheppard, at para. 55. Factual sufficiency is ordinarily a very low bar, especially with the ability to review the record.Even if the trial judge expresses themselves poorly, an appellate court that understands the “what” and the “why” from the record mayexplain the factual basis of the finding to the aggrieved party: para. 52.

It will be a very rare case where neither the aggrieved party northe appellate court can understand the factual basis of the trial judge’s findings: paras. 50 and 52. […] [74] Legal sufficiency requires that the aggrieved party be able to meaningfully exercise their right of appeal: Sheppard, at paras. 64-66. Lawyers must be able to discern the viability of an appeal and appellate courts must be able to determine whether an error hasoccurred: paras. 46 and 55. Legal sufficiency is highly context specific and must be assessed in light of the live issues at trial.

A trialjudge is under no obligation to expound on features of criminal law that are not controversial in the case before them. This stems fromthe presumption of correct application — the presumption that “the trial judge understands the basic principles of criminal law at issue inthe trial”: R.E.M., at para. 45. As stated in R. v. Burns, (SCC), [1994] 1 S.C.R. 656, at p. 664, “Trial judges arepresumed to know the law with which they work day in and day out”: see also Sheppard, at para. 54. A functional and contextual readingmust keep this presumption in mind. Trial judges are busy.

They are not required to demonstrate their knowledge of basic criminal lawprinciples.[23] [31] In the present case, the judge’s assessment of the evidence satisfies the criteria affirmed in G.F.

It demonstrates a carefulexamination of the whole of the evidence in this case and cannot be challenged on the basis that it follows an unsustainable logical path.The requirement of proof beyond reasonable doubt is not a requirement of proof beyond any possible doubt and this distinction cannotexclude the possibility that two reasonable triers of fact might equally discharge their functions according to law but reach inconsistentconclusions. That is in the nature of judgment and differing conclusions do not necessarily support, let alone compel, the inference thatone of those verdicts is unreasonable.

The Court has addressed these points on many occasions. The reasons in Richard provide anexample: [24] La juge McLachlin (alors juge puîné

e) écrivait dans R. c. W. (R.) : Il est donc clair que, pour déterminer si le juge des faits aurait pu raisonnablement conclure à la culpabilité de l’accusé hors de tout douteraisonnable, la Cour d’appel doit réexaminer et du moins, dans une certaine mesure, réévaluer l’effet de la preuve. [25] Il y a lieu de retenir des arrêts plus récents de la Cour suprême dans R. c. Sinclair, R. c. R. (P.) et R. c. W. (H.), les enseignementssuivants : 1.

Le tribunal d’appel doit d’abord déterminer si le verdict est un de ceux qu’un jury ayant reçu les directives appropriées etagissant de manière judiciaire aurait rendus au vu de l’ensemble de la preuve; 2. Le verdict est déraisonnable si le juge des faits a tiré une inférence essentielle au verdict qui est clairement contredite par lapreuve invoquée à l’appui de l’inférence; 3. Le verdict est déraisonnable si le raisonnement qui le soutient est à ce point irrationnel ou incompatible avec la preuve qu’il apour effet de vicier le verdict; 4.

Il faut faire preuve d’une grande déférence dans l’appréciation de la crédibilité faite en première instance lorsqu’il s’agit dedéterminer si le verdict est déraisonnable; 5. La cour d’appel qui se prononce sur un verdict de culpabilité doit dûment prendre en compte la position privilégiée des juges desfaits qui ont assisté au procès et entendu les témoignages et ne doit pas conclure au verdict déraisonnable pour le seul motif qu’elleentretient un doute raisonnable après l’examen du dossier.

Il doit plutôt examiner et analyser la preuve et se demander, à la lumière deson expérience, si l’appréciation judiciaire des faits exclut la déclaration de culpabilité. [26] Dans un arrêt unanime, Pardi c. R., notre collègue, Yves-Marie Morissette, écrivait relativement aux paramètres d’interventiond’une cour d’appel lorsque le moyen d’appel est celui du verdict déraisonnable : [28] À cette étape, je résume ce qui précède afin de bien situer dans leur cadre les questions à résoudre.

Un verdict déraisonnable ouqui ne peut s’appuyer sur la preuve est réformable en appel, et la question de savoir s’il peut être qualifié de tel en est une de droit. Ilsera ainsi qualifié s’il s’agit d’un verdict qu’un jury qui aurait reçu les directives appropriées et aurait agi de manière judiciaire n’auraitpu raisonnablement rendre. Dans le cas d’un verdict prononcé par un juge seul, une cour d’appel peut tenir compte des motifs expriméspar le juge pour statuer sur le caractère raisonnable de son verdict, ce qui accroît quelque peu la portée de l’examen à effectuer.

Ainsi,une inférence ou une conclusion de fait essentielle au verdict, mais qui est clairement contredite par la preuve à son appui, ou dont ondémontre l’incompatibilité avec une preuve qui n’est ni contredite par d’autres éléments de preuve ni rejetée par le juge, autorise unecour d’appel à casser le verdict qu’elle sous-tend au motif qu’il est déraisonnable. Cela ne va pas jusqu’à permettre aux juges d’une courd’appel de considérer qu’ils ont « le droit d’avoir une perception subjective de la preuve et [le droit] de se demander s’ils sontconvaincus du caractère inattaquable du verdict ».

Un doute persistant peut justifier un examen plus approfondi de la preuve pourdéterminer si, en effet, le verdict est déraisonnable selon la norme que je viens de rappeler. Cela vaut pour le verdict d’un jury comme

pour celui d’un juge siégeant seul, mais examiné dans ce second cas à la lumière des motifs prononcés par le juge. En tout état de cause, cependant, une cour d’appel n’apporte rien de particulier à l’évaluation de la preuve lorsque le juge expose des motifs de jugement détaillés. [24] IV The claim of uneven scrutiny [ 32 ] These observations also have a bearing on the appellant’s second ground in the present appeal, which is that the trial judge applied uneven or unequal scrutiny in her assessment of prosecution and defence witnesses.

As acknowledged by the appellant’s counsel, this ground in difficult to establish because the party who advances it must be able to demonstrate that the trier of fact did not examine the evidence adduced with reference to comparable criteria of credibility and reliability. [25] A claim of uneven scrutiny cannot succeed on the basis of a quantitative comparison of the attention given to the testimony of different witnesses.

It can only succeed if the proponent of the argument can demonstrate a qualitative discrepancy in the criteria applied to the assessment of each witness. [26] It is perhaps self-evident that the evaluation of characteristics such as truthfulness, perception, sincerity, expressiveness, and coherence can never be the same for each witness whose evidence is assessed by the trier of fact. The characteristics of each witness are unique and will necessarily elicit in the trier of fact variable assessments of their credibility and the reliability of their evidence. The Supreme Court noted this expressly in Gagnon : 20.

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.

That is why this Court decided […] that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected. [27] [ 33 ] The appellant has not demonstrated a qualitative discrepancy in the standards of assessment applied by the trial judge to the testimony of prosecution and defence witnesses in this case. [ 34 ] What is demonstrated in the trial judge’s reasons is an explanation of her conclusions with respect to the credibility of witnesses and the reliability of their evidence in the context of the entire case that is specifically tailored for this purpose by reference to particular features of their evidence.

This is not an indication of an uneven scrutiny of the evidence but a focused exposition of the reasons for her conclusions. [ 35 ] Further, the trial judge, as in any case, was not obliged to examine every aspect of the evidence produced and attempt to measure it all in the same manner with equal attention to each element. The judge was obliged to assess the evidence on the whole of the case and to measure its probative value with respect to the standard of persuasion, reasonable doubt, which determines the general issue in criminal cases.

This is the obligation imposed by the presumption of innocence and underscored by the method derived from W.(D.). There is no indication that these golden threads were lost in the fabric of her reasons and indeed there is every indication that they were scrupulously observed. [ 36 ] In short, in the present case, the trial judge provides careful reasons that make clear why she concludes that the evidence as a whole proves beyond reasonable doubt the guilt of the appellant on seven of the nine counts charged. [ 37 ] I propose to dismiss the appeal. PATRICK HEALY, J.A.