2022 QCCA 657, 2022 QCCA 657

Kritik-Langer c. R. 2022 QCCA 657 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-003841-215 (635-01-019659-201) DATE: May 9, 2022 CORAM: THE HONOURABLE MARK SCHRAGER, J.A. SUZANNE GAGNÉ, J.A. STÉPHANE SANSFAÇON, J.A. TOMMY KRITIK-LANGER APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT PUBLICATION BAN Warning: A NO PUBLICATION ORDER applies to this case, prohibiting the release of any information that may establish the identity of the victim. [ 1 ] This is an appeal from the judgment of the Court of Québec, District of Abitibi (the Honourable Louis A.

Legault), rendered from the bench on February 5, 2021 and followed by a written version dated February 10, 2021, finding the Appellant guilty of sexual assault. I. FACTS [ 2 ] The following facts are not in dispute. [ 3 ] On September 18, 2020, the Appellant and his girlfriend, Kitty Gordon, purchased a large quantity of alcoholic beverages.

They went to the house of a friend, Willie Cooper, where they met Mark Snowball, who brought them to the residence of the Appellant’s father to consume the alcohol. [ 4 ] Between 8:00 p.m. and 9:00 p.m., the Appellant, Kitty Gordon and Mark Snowball arrived at Mark Snowball's residence; they continued to consume alcohol. The Complainant, a 19-year-old babysitter, was there. After a couple of drinks, everyone left Mark Snowball's residence except the Complainant. [ 5 ] At approximately 9:30 p.m., the group went to the house of a friend, Junasi Munick, where they played poker and consumed more alcohol.

The Appellant had approximately 4 to 6 beers and 5 ounces of vodka. The Appellant also admits having shared 4 to 5 joints of marijuana and 1 gram of cocaine with Mark Snowball and Kitty Gordon. Between 2:00 a.m. and 3:00 a.m., the Appellant asked Mark Snowball if he could go to his nearby residence to get some rest. After obtaining Mark Snowball's approval, the Appellant left Junasi Munick's house for Mark Snowball's residence. [ 6 ] Two sexual encounters occurred that night at Mark Snowball's residence. The first one happened at approximately 2:00 a.m. or 3:00 a.m. upon the Appellant's arrival.

The second one happened later in the morning, but the precise time and the surrounding sequence of events is contradicted in the different versions of the witnesses. [ 7 ] A "rape kit" was completed on September 19, 2020 and delivered that day to the police. The Appellant’s version [ 8 ] The Appellant claims that he knew the Complainant, who had previously telephoned him to show interest in him. On the night in question, upon arriving at the Snowball residence, he went straight to the bedroom. The Complainant followed him and placed his

hand on her buttock and gestured to the lower part of her anatomy. He then pulled her onto the bed and sexual intercourse ensued. [ 9 ] According to the Appellant, his girlfriend, Kitty Gordon, came to Mark Snowball's house at approximately 7:00 a.m. or 8:00 a.m. and a fight broke out between her and the Complainant. The Appellant testified that he stopped the fight and that his girlfriend was evicted from the residence. [ 10 ] Officer McKenzie arrived at the residence at approximately 8:00 a.m. or 9:00 a.m. and met with the Complainant.

After Officer McKenzie left, the Appellant claims he again had sexual intercourse with the Complainant. He states that she did not want to go on top of him and asked him to go on top of her. The Complainant’s version [ 11 ] The Complainant barely knew the Appellant. She went to Mark Snowball's house to babysit on the night of September 18, 2020 and was there when the Appellant arrived at the residence with other people.

At that moment, the children were at a neighbour's house. [ 12 ] When the Appellant came back at approximately 2:00 a.m., on September 19, 2020, she was lying on the sofa and the children were sleeping in the living room. Upon his arrival, the Appellant started touching her everywhere, including the vaginal area. [ 13 ] He then took her to one of the bedrooms, where he sexually assaulted her despite her refusal and resistance.

After the assault, she went outside to smoke a cigarette to calm down and came back so as not to leave the children alone. [ 14 ] After the assault, the Appellant was "passed out" on the bed without his pants. A second assault took place later that same morning. After this second assault, Kitty Gordon arrived at Mark Snowball's residence. The Appellant still had his pants down. The Complainant tried to tell Kitty Gordon about the assault, but she did not believe the Complainant and then assaulted her. [ 15 ] The Complainant’s parents came to get her at around noon. The police were then notified.

She completed the "rape kit" and in the following days made a full statement to the police. II. JUDGMENT [ 16 ] After reviewing the facts and legal principles, the judge analyzed the Appellant’s testimony. He did not believe the Appellant that the Complainant initiated the sexual relations or that she had shown prior interest in him (a point on which she was not cross- examined). The judge underlined numerous contradictions in the Appellant’s testimony. [ 17 ] The judge believed the Complainant and characterized certain inconsistencies in her testimony regarding the timing of events as inconsequential. III.

QUESTIONS ON APPEAL [ 18 ] The Appellant’s various assertions as to errors committed by the judge can be summarized as follows: (

i) Did the trial judge misapprehend the evidence and did such misapprehension amount to a miscarriage of justice? (ii) Did the trial judge err in relying upon myths and stereotypes? THE APPELLANT’S POSITION [ 19 ] The Appellant contends that the judge made an error of fact by drawing unreasonable inferences, which were not supported by the evidence. By way of example, the Appellant points to the judge's statement that the Appellant was "totally dependent on his impulses" and was "driven by his drive to have sex with [the] complainant", as well as other comments related to the Appellant’s "sexual drive".

Such inferences tend to show that the Appellant acted out of opportunism and could not control his sexual impulses, which the Appellant argues does not arise from the evidence. The Appellant advances that the proof demonstrates that he went to Mark Snowball's residence because he needed some rest. [ 20 ] The Appellant argues that these errors committed by the trial judge are an infringement of his right to a fair trial. He advances that these inferences and

interpretations made by the trial judge are omnipresent in the judgment and affect the trial judge's conclusion on the credibility and, ultimately, the culpability of the Appellant. [ 21 ] Moreover, the Appellant maintains that in evaluating his testimony, the judge erred in law because he based his reasons on myths and stereotypes. According to the Appellant, the trial judge's assertion that it was "unlikely" that the Complainant initiated the sexual acts was based on stereotypes. He also contends that the trial judge depicted him as a man with "predatory behaviours" who could not control his sex drive.

He argues that this is also a mistake because it was not demonstrated by the evidence in the record. [ 22 ] Lastly, the Appellant advances that the judge erred in considering the Complainant credible, because her testimony was replete with contradictions. The judge relied on Officer McKenzie’s testimony to compensate for the Complainant's contradictions in her testimony regarding the time she completed the “rape kit” and when the complaint was laid. The Appellant also argues that the judge could not simply dismiss contradictions in her testimony about the sequence of events.

IV. DISCUSSION Legal principles Standard of review [ 23 ] In Lohrer , [1] the Supreme Court, subscribing to Doherty, J.A.’s observations in Morrissey , [2] set out the standard of review when one party argues that the trial judge misapprehended the evidence and that the misapprehension amounted to a miscarriage of justice under s. 686 (1)( a )(iii) Cr.c. The trial judge must be mistaken “as to the substance of material parts of the evidence and those errors play an essential

part in the reasoning process resulting in a conviction”. [3] [ 24 ] The standard has been described as stringent. [4] In order to demonstrate that a misapprehension of the evidence resulted in a miscarriage of justice, an appellant must establish three things: (1) the misapprehension of the evidence must go to the substance rather than to the detail; (2) the misapprehension must be material rather than peripheral to the reasoning of the trial judge; and (3) the errors thus identified must play an essential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction”. [5] [ 25 ] If the misapprehension of the evidence goes to the core of the reasoning, the verdict cannot be sustained. [6] LeBel, J., writing for the majority in R. v.

Sinclair , stated that “ an error in the assessment of the evidence will amount to a miscarriage of justice only if striking it from the judgment would leave the trial judge’s reasoning on which the conviction is based on unsteady ground”. [7] [ 26 ] Findings of fact on issues of credibility underscoring such misapprehension are subject to the palpable and overriding standard of review. [8] Myths and stereotypes [ 27 ] In J.L. c. R. , [9] this Court cited the reasons of Paciocco, J.A., in R. v.

JC , [10] in which he presented an exhaustive review of the principles surrounding myths and stereotypes in sexual assault cases. In those reasons, Justice Paciocco explained that trial judges cannot rely on myths and stereotypes to either bolster or compromise witness credibility. [11] Factual findings, including determinations of credibility, cannot be based on stereotypical inferences. It is an error of law to rely on a stereotype about how a sexual offence complainant would or would not act to either bolster or compromise credibility.

However, only stereotypical prejudicial generalisations are prohibited; not all inferences based on human experience are prohibited. For example, that women do not act in a sexually aggressive manner is a stereotype.

However, where a factual conclusion is drawn from the evidence (and not from a stereotypical inference) no error will have been committed. [12] [ 28 ] To succeed, a party must demonstrate not merely the use of stereotypes by the trial judge but that such use had an impact on the decision. [13] [ 29 ] A judge can, however, make comments on matters raised by the accused or the complainant when assessing their credibility if those comments are grounded in the evidence. [14] The distinction between stereotypes and comments based upon evidence was illustrated by the Alberta Court of Appeal’s majority in R. v.

Quartey : [15] When the trial reasons are reviewed in their entirety, it is apparent that the trial judge was not suggesting that it was “unbelievable” that a man would be less interested in engaging in sex than a woman but rather that he found it unbelievable in view of all of the evidence that the appellant was not interested in engaging in sex with the complainant. [Emphasis in original] [ 30 ] It is often difficult to distinguish between legitimate inference from circumstantial evidence and stereotypical reasoning.

In determining the issue, a trial judge’s reasoning must be taken as a whole, in context. [16] Moreover, judges are entitled to rely on their life experience in making findings on credibility. [17] Analysis [ 31 ] The trial judge's determinations that the Appellant was "totally dependent on his impulses" or that he was "driven by his drive to have sex with complainant" find weak support in the evidence.

However, it was open to the judge not to believe the Appellant that he went to Mark Snowball's residence merely to rest, and to infer that he went there with a view to having sex with the Complainant. [ 32 ] Accordingly, the test established in Lohrer to order a new trial is not met as the alleged errors did not play “an essential

part in the [judge’s] reasoning process”. The stringent standard is met only when the errors go to the core of the judge's reasoning and could have affected the outcome of the trial. [18] [ 33 ] The judge gave numerous reasons for not believing the Appellant that it was the Complainant who initiated and, thus, consented without any verbalization to the sexual encounter. The Appellant's level of inebriation gave the judge good cause to question his recollection of events.

The judge might have added comments as to the irony, if not inconsistency, in the Appellant's assertion that the Complainant had shown interest in him, but that he only went to the Snowball residence to rest and passed by her to go straight to the bedroom without speaking to her. The Appellant's assertion that he and the Complainant had consensual sexual intercourse a second

time, later that same morning, after (and not before) his girlfriend had beaten the Complainant, defies credulity in the context of the evidence taken as a whole. [ 34 ] Moreover, the judge was convinced, beyond a reasonable doubt, by the Complainant that she did not consent, and that the Appellant forced himself on her. Thus, the phrases quoted above characterizing the Appellant's libido are not essential to the judge’s reasoning and the finding of guilt. [ 35 ] In addition, regarding the Complainant’s testimony, the judge gave cogent reasons to believe her.

She was sober on the night in question and testified frankly, in detail and in a convincing fashion. Inconsistencies on timing of peripheral events are not, as the judge decided, controlling. While the Complainant did not denounce the Appellant at the first possible occasion to Officer McKenzie, she had at that time just been beaten by the Appellant’s girlfriend after denouncing the Appellant.

Moreover, she laid the complaint promptly thereafter. [ 36 ] The judge’s reasons for accepting the Complainant’s testimony, as well as the standard of review in such matters, are an impediment to any appellate intervention. * * * [ 37 ] The Appellant further argues that the judge wrongfully relied upon myths and stereotypes: [39] This allegation that this complainant, a close to 19-year-old woman, superficially known to the 29-year-old accused without any verbal exchange of any kind and through her initiative would have left the living room where all the children were sleeping to solicit a sexual intercourse through a silent sexual gesture in the direction of her lower belly or sex is totally unlikely in the circumstances of these presents .

It is not that a 19-year-old lady is not susceptible of wishing to experience sexual intimacy with a 29-year-old man. No such generalization. Nonetheless in the whole of the circumstances, the allegations of the accused are not credible and lack total likelihood and they do not, in the totality of the evidence, raise any reasonable doubt. [ 38 ] This inference made by the trial judge—that a 19-year-old woman would not be interested in a man 10 years older than her or initiate sexual relations—may appear to be a stereotype.

However, this view of the facts flows from the evidence administered in the case, including the Complainant's (credible) testimony and the circumstances surrounding the event. The trial judge even specified that his comment was based on the fact that he found the Appellant’s testimony not credible. The judge's statement is not that young women do not initiate sexual encounters, but rather that, based on the evidence, he did not believe that this young woman initiated the sexual relations in question.

As such, it was a permissible inference drawn from all the evidence and would not be prohibited when measured against the applicable principles set forth above. [19] [ 39 ] The Appellant also pleads that the trial judge used this segment of the judgment to bolster the Complainant's credibility. In the Appellant’s view, it shows that the trial judge compared the Complainant's sexual behaviour with what he considers normal.

To the contrary, it appears that the judge merely weighed one factor in considering the whole of the evidence and deciding whether the Complainant was to be believed. * * * FOR THESE REASONS, THE COURT: [ 40 ] DISMISSES the appeal. MARK SCHRAGER, J.A. SUZANNE GAGNÉ, J.A. STÉPHANE SANSFAÇON, J.A. Mtre Clara Daviault YVES MÉNARD AVOCATS INC. For the Appellant Mtre Claudia Carbonneau DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the Respondent Date of hearing: April 6, 2022