2022 QCCQ 10319, 2022 QCCQ 10319

R. c. G.F. 2022 QCCQ 10319 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MINGAN LOCALITY OF SEPT-ÎLES “Criminal and Penal Division” No.: 652-01-014565-192 DATE: April 7, 2022 ______________________________________________________________________ PRESIDING: THE HONOURABLE NATHALIE AUBRY, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v. G. F. Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Order restricting publication — sexual offences

Section 486.4(1) of the Criminal Code : The Court makes an order directing that any information that could identify the victim or a witness in the proceedings shall not be published in any document or broadcast or transmitted in any way.

Background [ 1 ] The complainant, who was 16 years old at the time of the trial, alleges that her great-grandfather, who is now 75 years old, sexually abused her when she was 11 years old. [ 2 ] Essentially, the complainant recounted that while she was lying in bed, around 10 p.m., her great-grandfather came to join her in bed, rubbed her back and her stomach and touched her breasts and vagina. [ 3 ] The complainant also indicated that the accused came into her bed one morning and covered her in kisses, including many on the mouth. [ 4 ] The accused testified in defence. [ 5 ] The accused indicated that the only time he went up to the complainant’s room around that time was when the complainant had quarrelled with her great-grandmother and he wanted to console her.

According to his testimony, he rubbed the complainant’s back and shoulder and asked her not to contradict her great-grandmother, who had dementia. [ 6 ] With respect to the other event reported by the complainant, he denies getting into his great-granddaughter’s bed. Issues

[ 7 ] Do the cognitive issues affecting the accused have an impact on the credibility and reliability of his testimony? [ 8 ] Is the complainant’s testimony credible and reliable?

Analysis [ 9 ] At trial, following the accused’s testimony on the events, the representative of the DCPP submitted documents relating to an assessment of the accused’s cognitive disorders and suicidal thoughts. [ 10 ] One of the medical documents indicates the following: [ translation ] - cognitive disorder taking root, with memory / attention - concentration [illegible] seriously affected (< 10th percentile). [ 11 ] An assessment titled “Cognitive Assessment Scale for the Elderly” is joined to this same medical document. It is in English and indicates the scores.

This assessment is unintelligible to the Court, however. [ 12 ] Moreover, an assessment of the accused’s fitness to stand trial was carried out on March 12, 2021, and filed into the record. [ 13 ] In this assessment, Dr. Réda Sarhani, psychiatrist, noted that the accused had a disorder that was taking root and stated the following, [ translation ] “The appearance of a new cognitive disorder does not seem to present any functional implications at the moment, early in the appearance of the illness”. [ 14 ] Dr.

Sarhani concluded that the accused was fit both cognitively and mentally to stand trial. [ 15 ] In the circumstances, the Court considers that it does not have proof that the long-term memory of the accused is affected and that the accused may not remember the facts that occurred while he took care of his great-granddaughter. [ 16 ] In the case before us, the Court must apply W.(D.) , [1] that is, it must proceed with the following steps in its analysis of the evidence. [ 17 ] First, if the Court believes the accused, it must acquit him.

If it does not believe the accused, but his version seems plausible, it must acquit him.

The third step is to assess the prosecution’s evidence, that is, whether it is credible and proves the allegations beyond a reasonable doubt. [ 18 ] The Court also emphasizes that the evidence presented before the courts does not necessarily represent what actually happened, but the Court may consider only the evidence adduced. [ 19 ] The Court has thus assessed the accused’s testimony. [ 20 ] The Court finds that the accused testified with composure about events that happened almost five years ago. [ 21 ] The accused recounted that after a quarrel between the great-grandmother and the complainant, he went to the complainant’s bedroom and rubbed her back and consoled her. [ 22 ] He admits that he kissed the complainant on the mouth at that time, indicating that this was common practice in the family.

In fact, the accused’s daughter testified to that fact. [ 23 ] The accused’s testimony is also specific with respect to what he was doing at the time, before that, and even about his current health and the fact that he can no longer live alone. [ 24 ] When cross-examined, the accused’s attitude did not change; he remained as talkative and tried to be specific about dates and the children’s ages. [ 25 ] The Court therefore believes the accused’s version. [ 26 ] With respect to the second issue, concerning the credibility and reliability of the complainant’s testimony, had the Court found that it did not believe the accused and that his version was not plausible, the Court would have analyzed the complainant’s testimony as follows. [ 27 ] At the start, the complainant indicated that the events unfolded in the fall, when she was 11 years old, but during the preliminary inquiry and in the statement she gave to police officers, she placed the events in the spring of that year. [ 28 ] Obviously, the indictment was amended.

Moreover, the specific date of the events is not an essential element of the offence. [ 29 ] The Court considers that it is an element it must take into consideration when assessing the credibility and reliability of the complainant’s testimony. [ 30 ] The complainant stated that before her great-grandfather came into her room, he told her that he would sleep elsewhere because there was no room in his bed, referring to the fact that her little brother and the great-grandmother were sleeping in his bed. [ 31 ] The complainant did not provide this information when she made her statement to the police officers or during the preliminary

inquiry. [ 32 ] Regarding the duration of the touching, at trial, the complainant indicated that the accused touched her for two or three minutes on her breasts and for five minutes on her vagina.

She also indicated that the accused asked her to put her hand on his penis for five minutes. [ 33 ] When cross-examined, the complainant indicated that this incident lasted an hour and a half, that the accused went to the bathroom during that time and came back. [ 34 ] The complainant spontaneously indicated that she had been a victim of other abuse during this period, that she had gone to therapy and that this had helped her to remember incidents. [ 35 ] The Court questions the reliability of the complainant’s testimony since she appeared to have a better memory at the time of the trial, after therapy, than she did at the preliminary inquiry. [ 36 ] The complainant’s testimony is contradictory on the fact that she does not know whether her great-grandfather was dressed during the incidents.

Also, she does not know how the incidents ended. [ 37 ] In the circumstances, the Court is of the view that all these elements affect the reliability of the complainant’s testimony, even if the complainant appears credible. [ 38 ] Obviously, this is not a speaking contest or an evaluation of one version over another. [ 39 ] In this case, applying the teachings of the Supreme Court ( W.(D.) ), for the reasons given above, the Court believes the accused.

Thus, it must acquit him. [ 40 ] Furthermore, the Court considers that considering the lack of reliability of the complainant’s testimony, the prosecution failed to prove the allegations beyond a reasonable doubt. [ 41 ] Accordingly, the Court will acquit the accused on the two counts. FOR THESE REASONS, THE COURT: [ 42 ] ACQUITS the accused on both counts. __________________________________ NATHALIE AUBRY, J.C.Q. Mtre Marisol Guerrero-Clusiau Delegate of the DCPP Mtre Michel Savard Counsel for the accused Dates of hearing: September 14 and 15, 2021