2022 QCCQ 6970, 2022 QCCQ 6970

R. c. Mazzocca 2022 QCCQ 6970 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Criminal and Penal Division” N° : 500-01-220006-214 DATE : October 17, 2022 PRESIDED BY THE HONOURABLE LORI RENÉE WEITZMAN, J.C.Q. THE QUEEN Prosecution v. LORIS MAZZOCCA Accused JUDGMENT WARNING: Restriction on publication: By Court order pursuant to

section 486.4(2.1) of the Criminal Code , any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way. [ 1 ] Loris Mazzocca is charged with one count of sexual assault (section 271 Cr. C.) on or about April 11, 2020, and one count of simple assault (section 266 Cr. C.) between October 1, 2019 and May 13, 2020. Both charges involve S.Y., his girlfriend at the time. [ 2 ] Although much of the testimony of the accused and the complainant coincide with respect to the general description of their six-month relationship, Mr.

Mazzocca firmly denies having assaulted or sexually assaulted S.Y. at any time. With respect to the simple assault, although the versions differ, they do overlap. With respect to the sexual assault, the two witnesses describe completely different versions of the same evening. The assault charge S.Y.’s version [ 3 ] S.Y. described some difficulties in her relationship with Mr. Mazzocca beginning in December 2019.

She was often unhappy with his behaviour and the way he was treating her, but each time she decided to end the relationship, he would convince her to give it another try. [ 4 ] At the beginning of 2020, S.Y. was inclined to end the relationship, but Mr. Mazzocca’s cancer diagnosis prompted her to stay. In March 2020, S.Y. sublet her own apartment and moved in with Mr. Mazzocca. Nevertheless, the ups and downs continued and she describes Mr.

Mazzocca as unstable: he could be good to her yet suddenly become controlling, often insulting her and even threatening that his mother would get involved and would throw her off the balcony and kill her. [ 5 ] The alleged assault would have taken place during a particularly bad period that the couple was going through. This was after Mr. Mazzocca’s cancer surgery in February 2020. He mistreated her frequently with aggressive language and repeated threats that someone from his family would do something bad to her. [ 6 ] According to S.Y., on March 14, 2020, she and Mr. Mazzocca were at his apartment, arguing.

He was so aggressive verbally that S.Y. was prompted to text her mother her exact whereabouts, as she was worried that something serious might happen to her. S.Y. was crying loudly and would not heed Mr. Mazzocca’s orders to stop crying and to calm down. He put his hand over her mouth to stop her from crying, making her feel that she could not breathe. This occurred in the living room. [ 7 ] When S.Y. then went into the bedroom, Mr. Mazzocca followed her, insisting that she stop her loud, incessant crying, because

the neighbours would hear. He then pressed her face-down onto the bed. Her face was pressed into the pillow and she felt that she could not breathe. She also believes that he might have pressed his knee on her back but she is not sure of this. He released his hold on her when she finally stopped crying. She cannot say how long it lasted. [ 8 ] That night she told him she was leaving, and she did leave the apartment. Nevertheless, following some text exchanges the next day, she returned. Mr. Mazzocca’s version [ 9 ] Mr. Mazzocca describes a relationship that was positive overall.

From the start he appreciated S.Y.’s attentiveness and concern for him. Nevertheless, he describes conflicts related to S.Y.’s jealousy, particularly with regard to his continued contact with an ex- girlfriend. [ 10 ] One such jealous fit is what led to S.Y. screaming “at the top of her lungs”. According to Mr. Mazzocca, she was out of control and he was trying to de-escalate the situation. He begged S.Y. to calm down, concerned that the neighbours would complain of the noise. [ 11 ] He told her that their arrangement was “no longer fun” and suggested she move out.

S.Y. told him that she would not leave and that it would take him several lawyers to get her out. [ 12 ] He denies ever putting his hand over her mouth, but mimics the gesture he did do, which was to put his finger over his own mouth to indicate that she needed to quiet down. [ 13 ] Not only does he deny ever pushing her on the bed with her face in a pillow, he states that they never left the living room during that incident. [ 14 ] According to Mr.

Mazzocca, he calmed her down and then went out for a walk to get some air. [ 15 ] The next day, S.Y. apologized and asked that they work it out, but he wanted her to leave his apartment. The sexual assault charge and subsequent events S.Y.’s version [ 16 ] The sexual assault charge refers to an event that would have taken place during Easter weekend, 2020 (on either the 10th or 11th of April, 2020). According to S.Y., by April 2020, the relationship was not going well and she had started looking for another apartment, but Mr.

Mazzocca persuaded her to stay. [ 17 ] On the day in question, S.Y. was not interested in having sex, but Mr. Mazzocca told her that having sex would fix things between them. S.Y. refused and told him repeatedly that she was not consenting. She moved away from him to the sofa to get away, but Mr. Mazzocca grabbed her from behind and started touching her neck, her hair and her chest. S.Y. told him to stop but he would not listen. Mr. Mazzocca pulled her leggings down and took off her bra. He pressed her into the sofa, and then penetrated her from behind. S.Y. was paralyzed with fear, hoping it would be over soon.

She was crying softly, remembering what happened the last time she cried loudly. [ 18 ] The sexual assault ended after about 10 minutes, with Mr. Mazzocca ejaculating on her back and legs. S.Y. does not remember any words that may have been spoken as she headed to the bathroom, still crying, feeling confused and scared. [ 19 ] Despite this incident, S.Y. stayed with Mr. Mazzocca and found that he was “good” again, showing his caring and thoughtful side. She thought, at the time, that perhaps he was ashamed of what he had done.

Nevertheless, a subsequent incident occurred at the beginning of May where he became verbally aggressive, finally convincing S.Y. that she had to leave. [ 20 ] On May 2, 2020, S.Y. had an appointment to visit an apartment to rent on her own. When Mr. Mazzocca saw S.Y. packing her things, he first tried to convince her to stay and then began insulting her and told her that if she left, she should not expect to ever come back. He asked her for the key.

He then took her bag of belongings and started to bring them out to the street, and told her that her belongings would be gone when she returned to retrieve them. [ 21 ] S.Y. was hesitant to call the police as Mr. Mazzocca had warned her not to, reminding her that as an immigrant, she was alone without any support, and powerless against him and his family who could actually kill her or have her deported. Nevertheless, on this day, as he put her belongings on the street, she called the police for assistance. Before they arrived, Mr.

Mazzocca brought the bags back upstairs, knowing that she had called the police. [ 22 ] She does not remember telling the police that he was throwing her belongings “out of the window”, as the police noted in their report. [ 23 ] S.Y. spoke to the police who encouraged her to write a statement but she decided not to. She told the police that Mr. Mazzocca was verbally aggressive but that he had never been violent with her. [ 24 ] This event delayed S.Y., such that she missed the appointment she had made to see another apartment. She thus continued living at Mr.

Mazzoca’s apartment. [ 25 ] The police came to their apartment again, on May 8, 2020, following a 911 call that was made by a third person. The police arrived shortly after S.Y. had fainted and hurt her arm when she fell in the bathroom. S.Y. had her arm wrapped in a scarf, prompting the police to ask many questions, mistakenly believing that she had been the victim of domestic violence. They encouraged her to make a

statement. She refused, reiterating that there had not been any assault on that day. Although the police specifically asked her if she had been assaulted by Mr. Mazzocca, she did not disclose the earlier events of assault and sexual assault. She was not sure at that time that she wanted to involve the police. She also testified that she was afraid of repercussions if she told the police about the earlier incidents. [ 26 ] Finally, S.Y. went to the CLSC and got information about her rights as a victim of domestic abuse. Mr.

Mazzocca was no longer living with her, as he had moved out of his apartment after the second police visit on May 8, 2020. He repeatedly asked her to put in writing that she felt safe in his presence. She didn’t understand why he wanted her to confirm that, since she had already made the decision to move out. [ 27 ] They continued to communicate by text message. Mr. Mazzocca made it hard for her to make the decision to leave as she felt he was playing with her emotions, threatening her that she would be in trouble if she left him. Yet at other times, he did ask her to leave the apartment.

She described this as Mr. Mazzocca playing with her like a cat with a mouse. [ 28 ] S.Y. also noted in her statement to police that she told Mr. Mazzocca at one point that she would not leave his apartment unless he took legal procedures to have her removed. This would have been during the time he had moved out, after the police visit on May 8th. She testified that she did in fact want to leave, but she was taking time to “gather her strength” to do so. Mr. Mazzocca’s version [ 29 ] Mr. Mazzocca remembers in great detail the events of Easter weekend 2020.

On the Saturday, they went out to buy bagels and on Sunday, they bought a cake at a pastry shop to bring to his parents. [ 30 ] This was the first weekend that they had installed their Internet and they spent some time discussing what shows they would watch, having the new opportunity to access so many shows. They prepared stir fry with rice for dinner. The atmosphere was good between them. [ 31 ] After dinner Saturday evening, they watched CBS news in the living room. They made tea. Then S.Y. suggested a movie “’C’est mieux à deux”. Mr.

Mazzocca asked if she wanted to go for a walk, or have “fun time”, referring to having sex. In response to this, S.Y. wanted to make sure that he was “ok” to have sex, as he had had his cancer surgery not long before that. [ 32 ] S.Y. left the living room and returned wearing sexy lingerie and high heels. She approached him from behind the couch and started to kiss his neck and nibble his ear. S.Y. then removed his t-shirt, came around to the front of the couch and took down his pants.

She asked him again if he was “ok”, referring to the discomfort he had suffered following the surgery. [ 33 ] She knelt down and performed oral sex. Again she asked if he was “ok”. Her goal was to get him fully erect. He said “let’s try”. She then straddled him on the couch, and they had intercourse. [ 34 ] Mr. Mazzocca remembers all of these details clearly because it was Easter Sunday, and because the Internet had been installed two days before, providing them with unlimited viewing options. It was also an unusual event, with the lingerie being the highlight of the evening for him. [ 35 ] Mr.

Mazzocca denies forcing himself on S.Y., and is categorical that he did not have sex from behind with S.Y. that evening. He understands the concept of consent and claims that the only sexual contact they had that evening was consensual. [ 36 ] Regarding the police visit on May 2, 2020 Mr. Mazzocca states that S.Y. changed from “apologizing” to renewed threats about his needing a lawyer to get her to move out. He grabbed two bags of her belongings, dropped them at the top of stairway and left the apartment. S.Y. called 911 and Mr. Mazzocca was still outside when the police arrived.

Following that incident, he stayed with his parents, but went back to his apartment the next day. [ 37 ] He could not understand why she would not leave his apartment, and they had many discussions about that. [ 38 ] On May 8, 2020, the police came by again and following that visit, Mr. Mazzocca moved out to reside with his cousin. S.Y. reiterated that he would need a lawyer to have her move out. He denies that she ever indicated that she was going to move out. [ 39 ] Mr. Mazzoca only moved back to his apartment following his arrest on May 13 th 2020, after S.Y. had left.

The Law [ 40 ] The fundamental rule in criminal trials is that the burden rests on the prosecution to prove all of the essential elements of the offence charged, beyond a reasonable doubt. The presumption of innocence requires that the accused has no burden to meet. [ 41 ] The actus reus of sexual assault consists of unwanted sexual touching. It is established by proof of three elements: the touching, the objectively sexual nature of the touching and the absence of consent. The first two elements are objective, requiring proof that the accused's actions were voluntary.

The third element of the actus reus , lack of consent, is subjective. This element is determined by the complainant's state of mind in relation to the touching at the time it occurred. [ 42 ] The mens rea of the offence of sexual assault is the intent to touch a person sexually, knowing that the person does not consent, or being reckless or wilfully blind to that lack of consent. [ 43 ] In the present case, the issue is not centered on the consent of the complainant nor Mr.

Mazzocca’s mistaken belief in her consent: on both counts, his defence is quite simply that the alleged incidents as described never happened.

[ 44 ] Because the evidence discloses two opposing versions of facts, the Court will follow the analysis suggested by the Supreme Court of Canada in R. v. W(D) . Thus, if the accused's testimony is believed, he will be acquitted. Even if the Court does not believe the accused's testimony, if it raises a reasonable doubt, he will be acquitted. Finally, even in the absence of any reasonable doubt raised by the defence presented, the question remains whether the evidence as a whole establishes the guilt of the accused, beyond a reasonable doubt. Analysis [ 45 ] Beginning with an analysis of Mr.

Mazzocca’s testimony, the Court finds several weaknesses affecting his credibility. The first is his attempt to present the complainant in a negative light. Although Mr. Mazzocca states that he appreciated S.Y.’s tenderness and attentiveness toward him, particularly at the start of their relationship, he also focuses on details that are wholly irrelevant to the matter at hand.

For example, he testifies at some length that S.Y.’s manner of dress and the fancy handbags she carried were not commensurate with her earnings as a salesperson at a clothing store. [ 46 ] In addition, at various points in his testimony, Mr. Mazzocca refers to the fact that he wanted S.Y. to leave his apartment and she refused to do so.

He points to the statement she gave to the police (in which she confirms having told him that if he wanted her to leave he would have to take legal proceedings), as proof of her unwillingness to vacate his apartment. [ 47 ] Despite the fact that S.Y. did indeed refer to legal proceedings in her statement to the police, it must be noted that this was her position after Mr. Mazzocca’s arrest, once he was already out of the apartment. She testified that she needed to take some time to figure out what her next steps would be.

S.Y.’s testimony is clear that while they cohabitated, she was unhappy with the relationship and sought other living arrangements. Mr. Mazzocca categorically refused to acknowledge in his testimony that S.Y. was indeed unhappy at several points during their cohabitation and informed him that she would move out, even when confronted in cross-examination with some text exchanges which make this plain. [1] [ 48 ] Mr. Mazzocca was also cross-examined with some texts that he sent to S.Y. on May 12 th 2020, after he had moved out of the apartment, following the police visit of May 8th.

At that time, he requests that S.Y. “clear his name” and put in writing that she “felt safe” if he were to move back. In answer to these questions, he first does not recollect having written those messages, then asks for further “context” in order to explain why he wrote that. Finally, he claims that what he meant by S.Y. “feeling safe” was that he was reassuring her that he would not evict her from the apartment. This part of his testimony is hard to grasp, given how illogical it is, and it leaves the Court to seriously question his truthfulness.

However, it must be underscored that S.Y. does not allege any assault on May 8 th . The evidence does not disclose what the parties were referring to when discussing the safety of S.Y. in their texts of May 12 th , nor any link between these texts and either of the alleged incidents of March 14 or April 11, 2020. The assault [ 49 ] Regarding the alleged assault on March 14, 2020, Mr. Mazzocca claims that the argument they were having stemmed from S.Y.’s extreme jealousy. He provided many details about her negative reaction to the fact that he was texting with an ex-girlfriend.

It may be noted that none of this was canvassed in the cross-examination of S.Y., meaning that his depiction of her jealousy as the root of their problems is another example of painting her in a negative light, without offering S.Y. the chance to provide her version. Nevertheless, regardless of what the true reason behind the argument of March 14 might have been, it is uncontested that they did argue that evening. Mr. Mazzocca described S.Y. as being out of control, and screaming at the top of her lungs, requiring that he “de-escalate” the situation. [ 50 ] The Court does not believe Mr.

Mazzocca’s testimony about the events of March 14 and specifically his denial of placing his hands on her mouth to stop her from screaming. He testified that S.Y. “wasn’t responsive to words” so he “instinctively showed her”, by placing his hand over his own mouth to ask her to lower the volume. His testimony seeks to minimize just how upset he was about her shouting, yet this is evidenced by a text message he sent her the next day, [2] asking S.Y. to apologize for having continued to scream at the top of her lungs, because his neighbour would hear her. [ 51 ] Despite this evidence that Mr.

Mazzocca was indeed angry with S.Y.’s shouting (or her loud crying, as she explained), even a painstaking cross-examination does not lead him to admit this. When asked if he got angry, he first answered “I don’t appreciate that word because you were not there”, adding that she got angry and he had to “de-escalate”. He then stated that he didn’t get angry, but would prefer to say he was “peeved”. [ 52 ] When asked again in cross examination very specifically whether he was angry with S.Y. on March 14, 2020, Mr. Mazzocca stated “there were a few emotions going on in my head.

I didn’t understand… I was trying to connect the dots”. He testifies that he was trying to understand why S.Y. could not accept that it was just a concerned friend calling him to see how he was doing. He adds “no, I wasn’t angry, I just wanted her to stop screaming”. [ 53 ] The text message that Mr.

Mazzocca wrote to S.Y. the next day belies the true extent of his anger caused by her screaming and matches squarely with the description that S.Y. gives of his reaction to her. [ 54 ] When, in cross-examination, the prosecutor read out the text sent to S.Y., stating that she did something “inexcusable” and the “worst thing” she could do to him, Mr. Mazzocca does not remember it. He asked to read the text, then to see the date on it, and finally stated that it was just an exaggeration. Yet he confirms that he wanted S.Y. to know that her behaviour was unacceptable.

In this part of his testimony, it is particularly clear to the Court that Mr. Mazoccca was not being truthful, hesitating before answering in an effort to alter the facts to suit his version. [ 55 ] Finally, when Mr. Mazzocca states that he is “almost positive” they did not go to the bedroom that day (contrary to S.Y.’s

version), only to later affirm he is “100% sure” that is the case, the Court does not believe him. The contrast between the minute details he provides elsewhere and the absence of certainty here is revealing, particularly since this event was an important one for Mr. Mazzocca: according to his text, it was “the worst thing” S.Y. could have done to him. [ 56 ] The testimony of Mr. Mazzocca about the events of March 14, 2020 is not believed and his version does not raise a reasonable doubt. S.Y. described the events of that day with clarity, precision and without exaggeration.

The Court finds her testimony to be credible and reliable. Contrary to the suggestion of the defence, the fact that S.Y. did not disclose that she had been a victim of assault despite the opportunity to do so when she spoke to the police on two different occasions, and despite their pointed questions about his treatment of her does not diminish her credibility. As S.Y. explained, she was not ready to disclose the assaults to the police at that time.

The Court accepts this explanation and underscores that there is no single manner in which a victim of domestic abuse must be expected to behave. [ 57 ] On the whole, the evidence establishes, beyond a reasonable doubt, that Mr. Mazzocca assaulted S.Y. by putting his hand over her mouth in an effort to have her stop crying and followed her into the bedroom where he pressed her down on the bed with her face in the pillow.

The sexual assault [ 58 ] The peculiarity of the evidence presented on the charge of sexual assault is that both parties present completely different narrations with no overlap whatsoever in the unfolding of the events of the evening of April 11. The Court is left to wonder if they are both referring to the same event. However, both the complainant and the accused refer to an event that took place during the Easter weekend.

Although S.Y. might not be sure if it occurred on Friday or Saturday, she is able to confirm that there was only one incident involving sexual contact between them on that Easter weekend. [ 59 ] Mr. Mazzocca’s version, despite the surprising inclusion of many peripheral, minute details, is a plausible, believable account of what took place that evening. The Court is mindful of the frailties noted above regarding the credibility of Mr.

Mazzocca: his refusal to admit that he was angry on March 14, 2020 when the evidence shows otherwise; a revisionist account of how S.Y. refused to leave his apartment and that he wanted her out; and his inability to explain his texts in which he asked her to put in writing that she felt safe with him.

Nevertheless, these do not lead the Court to totally disbelieve his account of his sexual contact with S.Y. on April 11, 2020. [ 60 ] If, as here, the main reason to question the truthfulness of the version presented by an accused arises out of the likelihood that the complainant is telling the truth, this is insufficient to meet the high standard of proof beyond reasonable doubt. Stated differently, despite a seemingly candid and accurate version of facts presented by S.Y., the very different, yet plausible account provided by Mr.

Mazzocca leaves the Court with a reasonable doubt regarding the commission of a sexual assault on April 11, 2020. FOR THESE REASONS, THE COURT: ACQUITS Loris Mazzocca of sexual assault (count 1). DECLARES Loris Mazzocca GUILTY of simple assault (count 2); __________________________________ LORI RENÉE WEITZMAN, J.C.Q. Me Bruno Ménard Attorney for the Prosecution Me Éric-Pierre Fugère Attorney for the Defence Hearing Dates: August 30 and 31, September 1, 2022.