2014 QCCA 2206, 2014 QCCA 2206

Unofficial English Translation Parsons c. R. 2014 QCCA 2206 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-005145-121 (500-01-004666-084) DATE: November 28, 2014 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. MARIE ST-PIERRE, J.A. JACQUES J. LEVESQUE, J.A. WILLIAM PARSONS APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT PUBLICATION BAN ON ANY INFORMATION THAT COULD IDENTIFY THE VICTIMS (s. 486.4 Cr. C. ) [ 1 ] The appellant was convicted of sexual interference (s. 151 Cr. C. ) and invitation to sexual touching (s. 152 Cr.

C. ) in respect of X, Y, and Z. [ 2 ] The acts took place between January 1, 2007, and April of 2008, when the appellant was a caregiver for children in a family- based daycare. At the time of the events, the complainants (Y and

X) were respectively 4 and 5 years old and Z was no more than 3 and 4 years old. [ 3 ] In April of 2008, each of the complainants gave an independent, videotaped statement of facts.

At trial, both Y and X were 8 years old, while Z was 7 years old. [ 4 ] The appellant submits only one ground of appeal: [ translation ] Did the Honourable trial judge err in law by rendering a verdict that was unreasonable because it could not reasonably be supported by the evidence, which did not have the guarantee of trustworthiness required to ground a guilty verdict beyond any reasonable doubt? [ 5 ] The question, as drafted, may appear to be a question of law (unreasonable verdict), but in reality in this case it is a mere question of fact concerning the young complainants' credibility. [ 6 ] This Court recently reiterated the applicable principles: [1] [ translation ] [36] A review of case law regarding the reasonableness of a verdict establishes the following principles: 1.

The Court must first consider whether the verdict is one that "a properly instructed jury, acting judicially, could reasonably have rendered on the evidence as a whole". 2. The verdict will be unreasonable if the judge drew an inference that is essential to the verdict but that is clearly contradicted by the

evidence used to support it. 3. The verdict is unreasonable if it is "so irrational, or so at odds with the evidence, that it vitiates the verdict...". 4. When determining whether the verdict is unreasonable, great deference must be afforded to the assessment made at trial of the witnesses’ credibility. (Citations omitted) [ 7 ] The appellant’s ground of appeal relates only to the credibility of the young complainants.

He essentially argues that the inconsistencies revealed during their respective cross-examinations and the evidence showing what he views as collusion against him mean that the judge committed a determinative error by accepting their testimony. [ 8 ] The trial judge, in a carefully developed and detailed judgment, clearly explains the reasons why she rejected the appellant's version, which she did not believe.

His testimony raised no doubt in her mind. [ 9 ] She went on to analyze the testimony of the young complainants by applying the appropriate standards for the testimony of young children. [2] She observed some differences between their videotaped recital of events in April of 2008 and their testimony at trial in 2010. There are indeed some inconsistencies and contradictions.

She explained, however, precisely why she accepted the versions of X, Y, and Z. [ 10 ] The similar fact evidence, which is not contested by the appellant, supports her position while confirming the testimony of the complainants on important aspects: “[t]he similar fact evidence supports and reinforces the testimony of the young complainants, and in particular that of Z”, [3] she wrote in paragraph 241 of her judgment. [ 11 ] The trial judge squarely rejected the allegation of collusion submitted by the appellant, finding, inter alia , that such collusion clearly could not exist when the statements were videotaped in April of 2008. [ 12 ] As the appellant states in his factum by referring to Burns [4] and R. v.

W. (R.) , [5] triers of fact are in a distinctly privileged position as they have the advantage of seeing and hearing the witnesses, observing their reactions, and perceiving their emotions. [ 13 ] We find that the appellant was unable to specifically identify a palpable and overriding error in the assessment of the young complainants' testimony. [ 14 ] It is therefore not our role to substitute our own assessment of this evidence for that of the trial judge. [ 15 ] The verdicts handed down by the Court of Quebec thus appear to be those that "a properly instructed jury, acting judicially, could reasonably have rendered on the evidence as a whole". [6] [ 16 ] The appeal will therefore be dismissed.

The Court, however, cannot overlook certain aspects of the conduct of the trial. [ 17 ] First, this trial concerned an English-speaking accused who was 71 years old when he testified in October of 2011. The three counts charging him with sexual interference with a child of less than 16 years of age (s. 151 Cr. C. ) and three counts of invitation to sexual touching respecting a child under the age of 16 (s. 152 Cr. C. ) were drafted in English. The appellant was subject to a maximum sentence of ten years' imprisonment on each count.

After convicting the appellant, the judge sentenced him to a three-year penitentiary term. [ 18 ] The conduct of the trial and the consequences of a guilty verdict were thus of capital importance to Mr. Parsons. [ 19 ] In such circumstances, it would have been reasonable to expect the trial to be held in accordance with sections 530 and 530.1 Cr. C. , which set out the specific linguistic conditions applicable to all accused in Canada, thus benefitting English-speaking accused in Quebec and French-speaking accused in other Canadian provinces.

This expectation was that much greater because two of the young complainants are also English speaking and their video statements to a police officer, referred to in paragraph [3], took place in English.

Moreover, the accused's adult daughter, also English speaking, was called as a witness by counsel for the appellant. [ 20 ] Thus, anyone reading the transcript of the mechanical recording from the trial of an English-speaking accused where a good number of English-speaking witnesses were called would be surprised to see that this was not the case. [ 21 ] At the outset of the trial, the following exchange took place between the judge and counsels of record. THE COURT (THE HONOURABLE JUANITA WESTMORELAND-TRAORÉ, J.C.Q.): Are we ready to proceed? Thank you. So we’re ready to proceed in the file of Mr.

William Parsons and we shall begin by swearing in the interpreter. Good morning. [ translation ] PAUL PEREZ Official interpreter Sworn in THE COURT:

Thank you. Mr. Paul, have you... THE INTERPRETER: I have...yes, Madam. [ English in original ] THE COURT: I will listen to you. Have you been able to communicate with the accused? Mtre GÜNAR DUBÉ, counsel for the defence: Very briefly, your Honour, yes, I have, yes. THE COURT: And is the equipment working? Is the equipment working? THE INTERPRETER: Yes, yes. I have verified that. THE COURT: Okay, thank you very much. So we're ready to proceed. [ translation ] Mtre AMÉLIE RIVARD, Crown prosecutor: Yes, well, to begin, Your Honour, to do so formally, I understand that my colleague has waived the application of

section 530 and that, despite the fact that the waiver is in English, we will proceed in French and Mr. Parsons has agreed with the fact that we will proceed this way. THE DEFENCE: That is correct, Your Honour. [ 22 ] Later, one of the young English-speaking complainants, X, testified in French but had difficulty describing some of the sexual acts. As she stated on a few occasions, [ translation ] "I don't know that yet in French", or [ translation ] "I forget in French". This complainant's mother testified in English, but the questions of both counsel were asked in French and the consecutive

interpretation was recorded. The next complainant testified in English because the interpreter was not available for her testimony in chief, but when the interpreter finally did arrive, counsel for the appellant asked his questions in French and the consecutive

interpretation was recorded. The third complainant testified in French, her mother tongue. Mr. Parsons' daughter, who is English-speaking, testified in French. [ 23 ] During the French testimony of English-speaking and French-speaking witnesses, there was no consecutive

interpretation, with the consequence that the simultaneous

interpretation provided to Mr. Parsons was neither recorded nor transcribed. [7] [ 24 ] When Mr. Parsons testified, his counsel questioned him in French, and the questions were consecutively interpreted. The same occurred when counsel for the prosecution cross-examined him. After hearing the

interpretation, Mr. Parsons answered the questions in English. [ 25 ] Why did this happen? It seems reasonable to infer from a reading of the transcript of the mechanical recording that the limited linguistic abilities of the Crown prosecutor and counsel for Parsons did not allow them to examine or cross-examine in English or to argue in this language. [8] As Crown counsel on appeal has correctly acknowledged before us, such an inference is indeed reasonable and at first glance appears to be the only reason why counsel waived the application of

section 530 Cr. C. , which the judge accepted without any additional formalities. [ 26 ] This Court, like the Supreme Court of Canada [9] and the Court of Appeal for Ontario, [10] has consistently acknowledged the importance of an accused's language rights. [ 27 ] In 2011, in Martin v. The Queen , Dalphond, J.A. wrote for the majority: [11] [ translation ] [88] Since the time of the impugned judgment, this Court has rendered its decision in Dow , supra , in which it clearly established that compliance with the language guarantee provisions of the Criminal Code requires the use of consecutive

interpretation and excludes simultaneous

interpretation (whisper translation). One would thus expect that from now on, in both the Superior Court and the Criminal and Penal Division of the Court of Quebec, the language rights of Anglophone accused will be fully respected , including during preliminary inquiries and voir dires, and that when translation is required, it will always be conducted in a manner that may be recorded and transcribed, which only consecutive translation appears capable of in the courthouses of this province.

[Emphasis added.] [ 28 ] As for the language of the trial, Chamberland, J.A., on behalf of the Court in Gagnon et al. v. The Queen , [12] addressed the importance of language rights as follows: [ translation ] [60] Beaulac insists on the importance of ensuring the absolute right of accused to enjoy equal access to the courts in the official language they declare to be their own . Judges, jury and representatives of the Crown are therefore bound to be institutionally bilingual if the nature of the trial in which they are acting requires it . [Emphasis added.] [ 29 ] In paragraph [90] of his reasons, he went on to describe the objective of

section 530 Cr. C . as being [ translation ] "to ensure the absolute right of an accused to be judged in the official language that is his or her own." [ 30 ] More recently, in Wilcox v. The Queen , [13] the Court had the opportunity to analyze an argument suggesting that a judgment rendered in English convicting the appellant of aggravated sexual assault was incomprehensible. In that context, Hilton, J.A., with whom Dalphond and Bélanger, J.J.A. agreed, wrote: [108] This was the trial of an accused whose first language is English.

The rights under the Criminal Code that flow from that status include the right to be tried before a judge who speaks the official language of Canada that is the language of the accused. Such a judge must not only be able to understand that language, but also actually speak it throughout the trial, including when interlocutory or final judgments are rendered. Moreover, in order to fulfill the statutory obligation that a transcript be available in an official language when testimony is given in another official language, as required by subsection 530.1(g)(ii) Cr.

C ., the accused has the right to consecutive translation during the trial . [109] In this respect, I note from reading the entire transcript that the trial judge not only understands and speaks the English language but also is perfectly capable of conducting a criminal trial in that language. Moreover, save for some unfortunate exceptions , he ensured that the accused's rights under sections 530 and 530.1 Cr. C . were respected. [Citations omitted, emphasis added.] [ 31 ] The unfortunate exceptions referred to in paragraph [109] were described as follows in a footnote and show the importance of consecutive

interpretation to an accused: The testimony of the Crown's French-speaking witnesses (the complainant and its expert on the transmission of the HIV virus) was not consecutively translated, and some of the trial judge's interlocutory judgments were not rendered in the language of the accused, nor consecutively translated so as to provide the required transcript in his language. In one of such instances, Mr. Wilcox was forced to obtain a translated version of the transcript of the complainant's testimony in order to be sure he understood it before he testified.

This would have been avoided had the trial judge ordered; as it was his statutory duty, consecutive translation that would have produced a bilingual transcript . This issue, however, was not raised as a ground of appeal, despite counsel's awareness of the Court's judgment in Dow and Martin , supra . [Citations omitted, emphasis added.] [ 32 ] Supposing it even possible to waive an [ translation ] "absolute right" in the manner described in paragraph [20] above, which is doubtful, the linguistic deficiencies of counsel, if any, cannot alone justify a waiver.

It is hard to imagine that the Members of Parliament who introduced sections 530 and 530.1 to the Criminal Code intended it to be so simple to disregard these provisions and render them inapplicable. [ 33 ] In the circumstances of this case, the judge should have questioned the grounds for the waiver and asked Mr. Parsons himself whether he knew his rights and understood and freely accepted the consequences of the waiver in question. If Mr.

Parsons had given any answers inconsistent with his free and informed consent, the judge would have been bound to refuse the proposed waiver. [ 34 ] Because the judge was not proactive, which would have been the preferable course of action, the record as it stands does not allow us to reach a conclusion as to the validity of Mr. Parsons' waiver. Moreover, and as his counsel on appeal has not raised this issue before us, the Court cannot take it into account in its analysis and disposition of the appeal.

Despite the manner in which the trial unfolded, the verdict would not have been any different had the requirements of sections 530 and 530.1 Cr. C. been met. [ 35 ] The Court, however, reiterates that counsel for the prosecution and the defence must encourage the full application of sections 530 and 530.1 Cr. C. to ensure, to quote Chamberland, J.A. in Gagnon , [14] [ translation ] "equal access to the courts in the official language they [the accused] declare to be their own".

As for the trial judges sitting in criminal matters throughout Canada, those of the Court of Quebec and the Superior Court of Quebec in particular, it would behoove them to take a proactive stance in protecting the language rights of accused despite the positions counsel take when appearing before them. FOR THESE REASONS, THE COURT: [ 36 ] DISMISSES the appeal.

ALLAN R. HILTON, J.A. MARIE ST-PIERRE, J.A. JACQUES J. LEVESQUE, J.A. Mtre Clemente Monterosso Mtre Nicole Naous MONTEROSSO & ASSOCIATES For the appellant Mtre Alexandre Boucher CRIMINAL AND PENAL PROSECUTOR Counsel for the respondent Date of hearing: November 24, 2014