r v. K., 2018 QCCQ 2382

R. c. K.B. 2018 QCCQ 2382 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC CITY OF MONTRÉAL "Criminal and penal division" N° : 500-01-109510-146 DATE : February 23, 2018 ____________________________________________________________________ BEFORE THE HONOURABLE JUSTICE DANIEL BEDARD, J.C.Q. ____________________________________________________________________ THE QUEEN Prosecutor v. K. B. Accused ____________________________________________________________________ JUDGEMENT ____________________________________________________________________ INTRODUCTION [ 1 ] Mr. K.

B. stands trial on the following accusations: “1-Between May 12, 1997 and May 12, 2004, in Montreal, district of Montreal and elsewhere in Canada (Ontario) for a sexual purpose, did touch a part of the body of X, a person under the age of fourteen (14) years committing thereby the indictable offence provided by

section 151 of the Criminal Code . 2-Between May 12, 1997 and May 12, 2004, in Montreal, district of Montreal, and elsewhere in Canada (Ontario), for a sexual purpose, did invite, counsel or incite X, a person under the age of fourteen (14), to touch him, committing thereby the indictable offence provided by

section 152 of the Criminal Code . 3-Between May 12, 1997 and May 12, 2004, in Montreal, district of Montreal, and elsewhere in Canada (Ontario), in committing a sexual assault on X, did cause bodily harm to her, committing thereby the indictable offence provided by section 272(1) c (2)b of the Criminal Code . 4-Between May 12, 1997 and May 12, 2004, in Montreal, district of Montreal, did knowingly utter to cause death or bodily harm to T. H. and D. D., committing thereby the indictable offence provided by

section 264.1(1) a(2)a of the Criminal Code . 5-Between January, 1997 and May 12, 2004, in Montreal, district of Montreal, in committing a sexual assault on X, did threat to cause bodily harm to T. H. and D. D., and use a firearm committing thereby the indictable offence provided by section 272(1) b(2)a of the Criminal Code . 6-Between May 12, 2002 and May 12, 2004, in Montreal, district of Montreal. Did knowingly convey to X a threat to cause death or bodily harm to Z, committing thereby the indictable offence provided by

section 264.1(1) a (2)a of the Criminal Code . 7-Between May 12, 1997 and May 12, 2004, in Montreal, district of Montreal, did knowingly utter, convey to, cause any person to receive a threat to cause death or bodily harm to X, committing thereby the indictable offence provided by

section 264.1 (1) a (2)a of the Criminal Code . 8-Between May 12, 1997 and May 12 2004, in Montreal, district of Montreal did engage in

an act of anal intercourse with X, committing thereby the indictable offence provided by section 159(1) of the Criminal Code .” [ 2 ] Identification is admitted and as for any sexual act, gesture or behaviour towards or with the plaintiff, the accused denies. The same, applies for all the counts related to threats, more specifically counts 4, 5, 6 and 7. [ 3 ] There is no litigation in relation with the constitutional rights of the accused. [ 4 ] The trial begins on December 11, 2017 and continues the next day and on January 9 and 10, 2018.

ISSUES TO RESOLVE [ 5 ] The file raises numerous questions concerning the issues of credibility and trustworthiness associated with collateral or peripheral information, when a plaintiff’s testimony is in relation with events of sexual nature that would have occurred when she was a child and then a young teenager.

Consequently, their impact on the totality of the testimony and on the assessment of the credibility. [ 6 ] Notwithstanding the above issues that will be addressed by the Court in the judgment, remains the central issue: [ 7 ] Does the evidence tendered convince the Court, beyond a reasonable doubt that, the accused committed the acts alleged in the counts and is guilty? EVIDENCE [ 8 ] The evidence tendered by the Prosecution consists of the testimonies of the plaintiff, X, her mother T. H. and L.

W., the spouse of her father. [ 9 ] The accused testifies in defense. [ 10 ] There is also the documentary evidence filed in defence, more specifically D-1, a medical confirmation of rehabilitation services received by the accused in 1997, following his car accident, D-2, a certificate of divorce attached to a draft agreement and D-3, photos, en liasse. [ 11 ] Finally the parties filed documents P-1, entitled “Chronology” and comprising a list of events and dates, in relation with the contents of the testimonies and P-2, a photo of the plaintiff with her friends namely her friend Y, when they were in grade 2.

FACTS [ 12 ] The first witness for the Prosecution is the plaintiff X born on [...], 1991 and aged 26 years. Her father is D. D. and T. H. is her mother. [ 13 ] Until the age of 16 years, she affirms living in [Borough A] with her mother and K. B., the accused and ex-husband of the mother. [ 14 ] She remembers her mother working at Le Marché A and Le Village des Valeurs, starting the car at 03:30 in the morning because she began work at 4:00. She came back home at around 5:00 or 6:00 in the evening and again left for work, since she also had a night job.

The plaintiff would go to bed at around nine in the evening. The accused at the time, drove trucks and delivered magazines. The accused had a car accident in 1997, when she was aged six years old. At the time, she was scared of the accused because of the scars. She also remembers that he was for a period of time, in a coma. [ 15 ] Asked to describe a normal day, the plaintiff states that she would be in her bed, the accused would come in her bedroom and she would pretend sleeping.

Even if she did not want to go with the accused, he would bring her in the bedroom and then cuddle and kiss her. [ 16 ] She remembers the first incident in 1997, when she was six years old. She was playing with her toys and the accused brought her in his room, took his pants down, took her hand and made her stroke his penis. At the time, her mother was in the laundry room of the building, in the basement. The accused also threatened her that he would kill her parents if she disclosed.

The first incident took place in [Borough A] when they were living on Boulevard A. [ 17 ] The second incident involved kissing and vaginal penetration. Before the incident involving vaginal penetration, many other incidents similar to the first one took place. [ 18 ] On Street A, in the house in [Borough A], she remembers being on four legs and the accused penetrating her one finger at a time. It occurred either in the morning or in the evening, but usually in the morning. Two or three times per week. The accused asked her how it felt when he touched and sucked her breasts.

On Street A, she was eight years old at the beginning. In that house there were three bedrooms including one in the basement. [ 19 ] At the beginning, penetration was vaginal then anal. She also remembers the accused taking a picture of her while she was in pyjamas asking her to let go one button at a time. The picture was taken in the basement and it was not in the morning, since the accused never woke her up to go in the basement. The accused also watched pornography on the TV and made her do sexual things. That took place in the evening. [ 20 ] The accused ejaculated on her back, in her mouth, vagina or anus.

He would also tell her to swallow or spit it. When he ejaculated in the anus, she would have diarrhea and the accused would laugh and tell her “you have the shit”. [ 21 ] Sexual assaults took place two or three times a week, too many times to know the exact count. In grade 2, she disclosed the sexual incidents to her friend, Y. Her brother Z was born in 2001. [ 22 ] The sexual incidents with vaginal penetration started in the house on Street A, in the accused’s bedroom. Kissing, oral sex and sometimes vaginal penetration.

The accused would make her take weird positions namely her head lying downward with his penis in her mouth. She would choke. In the house on Street A all the sexual episodes took place when the plaintiff was aged between eight and 13

years old. They would also do the 69 position. [ 23 ] She did not disclosed because the accused was bigger, was authority and because she was scared for her family because of the threats to kill them made by the accused. According to the plaintiff, the accused was aged around 25 years old. [ 24 ] The accused was violent with her mother. He yelled at her and would pushed her in the corner. A big fight at least once a week.

The accused was also verbally aggressive with her, often calling her ugly and fat. [ 25 ] The threats would come after the sexual abuses, at least five or six times towards her mother, at least five times towards her brother and doesn’t remember the number for her father. The accused would say “ I will kill your mom, your dad and your brother ”. After sex, she would cry and it would hurt. Very aggressively the accused would tell her to wipe her tears before her mother arrived. Her mother upon arriving would ask her why she had tears and she would lie. This would happened a few times per month.

One of the excuses she would give for crying was that she had not eaten all of her meal. [ 26 ] The accused penetrated her and it hurt. She remembers bleeding. He would put a towel under her and continue. He wouldn’t stop. That was the beginning when he started to penetrate her. Light bleeding. [ 27 ] Anal penetration started when the accused missed her vagina. So, he continued alternating between her vagina and her anus. They had just recently moved in the house on Street A and it was during the ice storm in 1999.

Following the sexual episode where the accused penetrated her in the anus, he did it again afterwards. After anal penetration, she would have diarrhea. The accused always penetrated her with his tongue before using his penis. [ 28 ] Every year, when the family went camping in Ontario, the accused would engage in oral sex with her in the car. [ 29 ] Sexual incidents lasted between 10 and 60 minutes. The accused spent the rest of the time on his computer. [ 30 ] The plaintiff remembers being penetrated under the water when camping.

Her mother was on the beach reading. [ 31 ] The picture taken by the accused was taken in the basement, where the computer was installed. It was in the house and it happened only once. [ 32 ] She never witnessed the accused hitting her mother, but he could push her and make holes in the walls. [ 33 ] In grade 2, she told her classmate friend Y what was happening with the accused. [ 34 ] She was in the apartment when they were told that the DYP was at school.

In the presence of the DYP, she denied everything and adds that she was threatened by the accused before leaving and mimics the gesture made by him with his hand in the air. Her mother was not beside her at that moment. [ 35 ] Afterwards, the accused was mad and more aggressive during the sexual assaults. The sexual assaults stopped in 2004 when her mother left the accused and they move in an apartment in [Borough A]. [ 36 ] The plaintiff is diagnosed with an anxiety problem and undergoes therapy with a psychologist. She went to the police in 2014 and made a statement.

Her first boyfriend in 2006 was named A and she disclosed the sexual abuses to him as she had done with her friend Y. [ 37 ] She told her father and his spouse L. in 2014. [ 38 ] When her mother left for England, her brother went to live with his father the accused and plaintiff with her biological father. [ 39 ] Her mother came back from England for a year, then left for Saskatchewan. Since 2008 or 2009, her mother lives in Saskatchewan. The plaintiff and her brother would go see their mother during summer. [ 40 ] When she disclosed the sexual abuses to her father, she also called her mother.

She never saw the accused afterwards except when she went to see her brother in Ontario where the accused was residing and at a fair in [Borough A]. She loves her brother and was afraid for him. He now lives with their mother in Saskatchewan.

She had made arrangements with the police, so that the accused would be arrested after the departure of her brother, now aged 17 years old, for Saskatchewan. [ 41 ] The plaintiff affirms that the accused until the end wanted oral sex, kissing with the tongue or that she be on four legs while he penetrated her and that they did the position called 69. [ 42 ] Cross-examined, the plaintiff affirms that they were living in [Borough B] before moving on Boulevard A and that she does not remember if the accused was living with them in [Borough B]. She does not remember living with her father before 1997.

According to her, the accused arrives in her life in 1993. [ 43 ] As for the jobs the mother had, she remembers that her mother was working at le Marché A when they were living in the house on Street A, but cannot say if that was the case when they were in the apartment on Boulevard A. The same answer is given for the job at le Village des Valeurs and the other at the magazine store. She remembers that her mother was working when they were living in the apartment before moving on Street A. [ 44 ] When living in the apartment on Boulevard A, she does not recall her mother leaving in the morning.

For her, her mother would finish her work at le Marché A at two o’clock in the afternoon. She thinks that they moved on Street A in 2000. [ 45 ] Does she remember that the ice storm occurred in 1998? No, and if the case, it does not change anything. She affirms living on Street A when aged nine years old, from 2000 to 2004.

[ 46 ] It’s when they left the house on Street A to live in an apartment in [Borough A] that the sexual abuses stopped. [ 47 ] In 2004, her brother Z was attending daycare. She doesn’t remember if her mother was still working at le Marché A, when they left the house. She does not remember if her mother worked weekends, she says no. She remembers that she worked on Tuesdays and Thursdays and does not remember if she was in the house the other mornings. She shared a bedroom with her brother and does not know if the accused was working.

According to her, he was working for “Dormez-vous” a mattress retailer. [ 48 ] Could it be possible that the accused would leave the house at six in the morning? The answer is no, because the accused left after her and she left the house at around 8:00 or 8:30 in the morning. When the sexual abuses were happening in the evening, she doesn’t remember if Z was in the house, but she remembers that her mother was the one bringing back Z from daycare. [ 49 ] She was aged six years old when the accused had his accident and there was no sexual abuse before the accident.

Does not remember going at the hospital to visit the accused. In 1997, she was in grade 1 according to her memory. Does not remember what the accused was doing when she came back from school. In 1998, the accused had an eye patch. Her mother started to drive a car in 2002 and she does not remember a white Honda Civic. [ 50 ] Did the accused do domestic chores in the apartment on Boulevard A?

No, her mother was the one doing everything except that sometimes the accused would prepare the supper. [ 51 ] She confirms an outside pool on Street A and yes friends were invited, contrary to Boulevard A where no friends were invited. [ 52 ] When her mother married the accused, she was the flower girl and does not remember the date of the marriage, as she doesn’t remember the date they left the house except that it was nice outside, and the best day of her life. [ 53 ] Answering to questions linking dates to peripheral events, the plaintiff affirms that they could have left the house on Street A in 2005.

She started the relationship with A in 2005, while in apartment and she told him at the beginning of their relation about the sexual abuses. [ 54 ] According to her, the sexual abuses stopped in 2004 when they left the house, but then they left in 2006. [ 55 ] She has no recollection that the accused left every day for treatment. The threats came after the first episode of sexual abuse. She does not remember her mother being pregnant when they left the apartment on Boulevard A. [ 56 ] As for the picture of her taken by the accused, it was in the evening not in the morning. Only the top was removed not the pants.

She remembers doing a fellatio when the accused was sitting in the lazy boy. She can’t precise the year. [ 57 ] The accused never used a condom. He had said to her that he would stop when she would have her first menstrual period, which she did at 11 or 12 years old, but the accused continued. She was scared of being pregnant. [ 58 ] She told her mother about her menstruations and both told the accused. She was happy because she thought it meant the end of the sexual abuses. She had no medical follow-up during that period. There was light bleeding at the beginning but not a lot.

During the sexual abuse where the accused wanted the position 69, he would be standing up and holding her, head down. [ 59 ] The accused never hit her and the threats were always verbal. [ 60 ] As for camping, they went each year during summer. She remembers seeing the parents of the accused once. It’s possible that the camping was not near the beach since they needed the car. [ 61 ] As for the camping at “Bon Echo” site, it occurred when they were living on Street A. [ 62 ] During the sexual abuses, penetration always hurt.

When the accused penetrated her in the water, her mother was on the beach and as for her, she had water up to her chin. [ 63 ] After the DYP episode, nobody spoke about it. Her mother never spoke to her concerning sexual abuses and what to do, if the case. She was worried for her brother Z when her mother left for England. When her mother left, she was either 16 or 17 years of age, so in 2007 or 2008. [ 64 ] Her mother left in the middle of the school year.

The plaintiff stayed with her friend on Street A to complete her school year in the same school. [ 65 ] The mother came back after a year and stayed with friends in [Borough B], since she didn’t have the financial means to support the plaintiff and her brother. She would visit her mother once a week and it lasted for about a year. Then the mother moved to Saskatchewan and she communicated with her mostly by texts messages. Disclosing the sexual abuses always scared her. [ 66 ] She recalls three summers in Saskatchewan: 2011 (one week with Z), 2012 (one week with

Z) and 2014. [ 67 ] She knew that her mother wanted full custody of Z. She maintains that her mother and the accused ended their relationship in 2004. In 2012, she met Z at the airport before leaving for Saskatchewan. [ 68 ] Concerning the DYP episode, she stated in her video that the accused was in the room with her when she was questioned. After speaking with the police, she realized that she had made a mistake. During the preliminary inquiry, she answered that the accused was not in room. The investigator told her that she was making a mistake. It was impossible that the accused be in the same room.

Today she affirms, notwithstanding the previous answers that the accused was in the same room, according to her memory. [ 69 ] Sexual intercourse occurred two or three times a week. Both were naked. The accused is circumcised, has no tattoos and has a

hairy body. [ 70 ] She does not recall a computer in the apartment, but remembers the one on Street A in the basement. As for the house rules, she remembers that schoolwork had to be completed before supper. She had chores to complete: make her bed, the dishes and laundry. [ 71 ] No sexual intercourse took place in the apartment on Boulevard A. [ 72 ] She is referred to her statement made on April 14, 2014, in which she writes that the accused penetrated her in the same year as he started touching her. How can that be if no sexual intercourse took place in the apartment?

The plaintiff explains. [ 73 ] As for the first incident the plaintiff states that after she touched the penis of the accused he threatened her. She was scared, he had scars and she cried. It was a promise not to tell after the first incident. [ 74 ] She was six years old and scared. The threats came afterwards. The accused was an aggressive person, raising his voice, yelling, making holes in the walls and always violent with her mother. [ 75 ] She felt safe when her mother was home. [ 76 ] According to her, 2004 was the year they left, but it could be 2006.

She maintains that the accused did not use condoms, there was no lubrication and even if she felt pain in her vagina it did not prevent her from walking without pain. She does not remember bleeding in her underwear. [ 77 ] As for anal penetration, she remembers screaming. She does not really remember when arriving on Street A. The pornography material, when sexually abused by the accused, was on the TV not on the computer. She herself never viewed pornography. [ 78 ] As for the DYP episode, the threat made by the accused with his hand in the air, was made before they left the house.

The plaintiff, went to the DYP travelling in the same car with her mother and the accused. [ 79 ] At the preliminary inquiry, she stated that the accused was not in the room. She can‘t explain because according to her memory he was in the same room. [ 80 ] She does not know when her brother Z started to spend the whole summer with his mother in Saskatchewan, but it was not at the beginning. She remembers changing her holidays because of Z. [ 81 ] Earlier, she stated that the accused was hairy, more specifically the chest, the belly and the back. It is possible that the accused shaved himself?

Not all the time, according to the plaintiff. Giving that answer, she was referring to the genital parts of the accused, not his body. [ 82 ] In her video statement she states that Z was on the beach with his mother and now she only refers to her mother, can she explain? Maybe she made a mistake, but as for penetration in the water, she is sure. [ 83 ] The second witness for the Prosecution is T.

H., born on [...], 1974, mother of the plaintiff. [ 84 ] When her relationship with the accused began, X was two years old whereas Z was born on [...], 2001. [ 85 ] In 1993, she lives with the accused in [Borough B], then on Boulevard A in [Borough A], then on Street A. She does not remember for how long she resided on Boulevard A. The house on Street A had two bedrooms on the first floor and a third one in the basement. There was also a bathroom in the basement. Two TVs in the house and the computer in the basement in the spare room.

The children shared the same bedroom. [ 86 ] Was it in 2000 or 2001 that they move in the house, she cannot remember precisely, but maybe it was a year before the birth of Z. [ 87 ] The accused used the bedroom in the basement as an office. [ 88 ] As for her jobs, she states the following: - In 1997, she works for two Stokes stores from 9:00 to 5:00 in one and on Thursdays and Fridays nights at the other. It takes her two hours of travelling, back and forth. She leaves at 6:00 in the morning; - She works for Stokes for approximatively two years.

She also does evening hours at Multimag, in 1998 while living on Boulevard A; - Then she leaves Multimag and starts at le Village des Valeurs from 6:00 to 9:00 in the evenings; - Meanwhile, the accused is responsible for the house chores while she works from 40 to 60 hours per week plus travelling; - Z was born in [...] 2001 and she went back to work, three months after; - The accused was on a disability leave for more than a year and then working in a plastic factory in Town C; - The accused had his accident in 1996 or 1997 and was on a disability leave for more than a year.

It started while they were on Boulevard A and it was still the case when they moved on Street A; - The accused spent a lot of time in the basement and at one point was delivering mattresses.

[ 89 ] As for camping activities, the family camped in Ontario, namely at Bon Echo and Voyageur camping sites. For errands, they either went to a store on the camping site or in the city. They went camping with the plaintiff and Z. [ 90 ] She obtained her driving licence in 2000. Her working

schedule at le Marché A where she started to work three months following the birth of Z was the following: on Tuesdays and Thursdays from 4:00 in the morning to 4:00 in the afternoon and from 9:00 in the morning to 5:00 in the afternoon, the other days of the week. She had to leave 20 minutes before 4:00 and 30 minutes before 9:00. [ 91 ] After work, the routine was homework, suppers then lunches. If the plaintiff was awake, she was in her bedroom or on the couch.

She would ask her daughter about her day then prepared her for bed. [ 92 ] The plaintiff took her school bus before eight in the morning and came back home at around three o’clock or three thirty. [ 93 ] As for her, she would arrive home around 11 o’clock at night. The accused was the main caregiver in a proportion of ninety percent. [ 94 ] The sexual abuses were disclosed to her in January 2014, when the plaintiff and her father called her. [ 95 ] She ended the relationship with the accused in 2006.

They were not getting along and the accused was seeing other women. [ 96 ] During their relationship, the accused was a very controlling individual, namely concerning money. She had to sign her paychecks and give them to the accused, situation that generated arguments. [ 97 ] The accused was also really strict which generated numerous arguments. He would criticize the length of the plaintiff’s skirt, check her backsack before she left for school and when arriving from school. [ 98 ] When she arrived from work, her daughter would be crying.

The excuse would be that she had not eaten her supper so she had to be in bed at six. The accused was less strict with Z. [ 99 ] The accused got upset with nothing and punched the walls. It happened so often that it became normal. For example, if a light had been left on, he would complain about electricity costs. [ 100 ] The children were afraid of him when he yelled and they would go in their bedroom. [ 101 ] The accused was verbally abusive with her and the children, for example when a glass of milk had been left on the counter. [ 102 ] One year before their wedding, the accused found a job.

On a daily basis, the accused was a short fused person. [ 103 ] He would play with the children sometimes, namely in the pool. After their separation she moved. She put an end to their relation because the accused was seeing other women, at least six women to her knowledge, also because of his aggressiveness and verbal abuse.

The children were afraid of him and stressed. [ 104 ] At the beginning, she shared custody of Z with the accused and X stayed with her until she left, then the plaintiff went to live with at a friend’s on Street A for the remaining of the school year. [ 105 ] She went to England for six months, following her encounter with a man, online. She came back to Montreal and lived at a friend’s place in [Borough A] for about a year, then moved in an apartment in [Borough B] in 2009 for six months before leaving for Saskatchewan where she still resides. [ 106 ] In 2011, Z stayed with her all summer.

As for X, she came only once and stayed for three weeks. She does not remember which year. [ 107 ] After his accident, the accused was left with scars in the face and damages to his brain.

He also received services in physiotherapy. [ 108 ] On Street A, there was a desk at the bottom of the stairs in the basement and the accused would argue and required that the plaintiff do her homework at the desk. [ 109 ] According to her, the accident impacted on the accused’s personality, his speech and his sense of humor. [ 110 ] She states that most of the time, sexual relations with the accused were not consensual and took place from five to seven times per week. [ 111 ] Crossed-examined, the mother affirms that in 1996, she was living with the accused on Boulevard A and that from 1994 to 1997, the accused was working at the plastic factory.

In 1995, he left her for another woman for a period of three months. When they moved on Boulevard A, she was not working and the accused had his accident on August 27, 1997. [ 112 ] She confirms camping activities with the accused, his parents and his brother, but not necessarily at the same time. More without his parents than with them. Maybe a total of five times with his parents. On the camping site, errands necessitated a car.

After his accident, the accused was in a coma for four weeks while hospitalized, then transferred in a rehabilitation facility, spent a month at his parent’s home and came back home in December 1997. [ 113 ] She worked for Stokes in Town A and Town B in 1997. Her daughter was entrusted to her downstairs neighbor when she was at work until the accused came back in December 1997. He could not drive when he came back. The accused continued to receive rehabilitation services with the objective that the accused worked on his emotions.

[ 114 ] She does not remember when the accused bought a computer. [ 115 ] On Boulevard A, she was not working before the accident and if she started to work after, it was because money was needed. The accused regain the capacity to drive soon after his return and went back to work for the plastic factory for a few months, then stopped because he suffered a burnout. [ 116 ] When the accused learned that he would receive a lump sum from la S.A.A.Q., they started to look for a house. [ 117 ] She confirms working for Zellers a few months before her jobs with Stokes.

She does not remember the parents of the accused being caregivers for her daughter, it does not ring a bell. [ 118 ] In 1999, she was called in at school. The accused reached her at work and advised her that school authorities were refusing to let her daughter be picked up by him. The accused called her from school. At one point, the accused was called back in by the police. According to her, the accused was not present during the interview with the police officers.

Her daughter was in the principal’s office not with the accused in the same room. [ 119 ] She was questioned on the accused and the biological father of the plaintiff. She was informed of the signalment or referral. She did not believe her daughter. She had discussed with her daughter about inappropriate touching, having herself been abused in the past. [ 120 ] Upfront, she asked the accused if he had abuse her daughter and he denied. They got rid of all the pornography movies they had in the house. As for her daughter, she refused to speak to her about the alleged abuse.

The accused was upset. [ 121 ] Before the accident, the accused was a joker, not after. When they bought the house the accused was not working. She does not remember the accused working in [Borough C] and when they moved in the house, she was pregnant. [ 122 ] From 2000 to 2005, the accused spent most of his time on the computer and was doing the basics at home meaning domestic chores and care for the children. X did not have permission to go on the computer. The accused bought a white Honda Civic for her. She was working at the Marché A at the time. He possessed a Honda Accord.

She got the car in 2001 and had taken lessons in 2000, in West Island. [ 123 ] How could the accused buy two cars? She answers that she gave him all her paychecks. At Stokes, she started right away in one of the stores as manager. [ 124 ] They married in 2004 and she does not remember if the accused was working at the time. She only remembers the accused delivering mattresses and cannot say how many hours per week. [ 125 ] The accused met his actual wife in 2005.

At age 12, the plaintiff would take care of herself. [ 126 ] She recognises that her daughter was not happy to live across their house on Street A when she left for England and that she did not want to go there or babysit her brother who was upset with their separation and her decision to move to England. [ 127 ] When she worked for Stokes, she would arrive home between 10:30 and midnight. [ 128 ] As for the backsack of her daughter, never was there an issue concerning electronics. She never noticed blood stains. She doesn’t agree with the proposition that Z did well in the custody of the accused.

He is currently in therapy. [ 129 ] She recognizes that there was tension between her and the accused in 2011, concerning the custody of Z and yes she did say to the accused in 2012 that she was surprised with the maturity of Z. [ 130 ] The third witness for the prosecution is L. W.. She is the wife of the biological father of the plaintiff. She met X six years ago, in 2012. [ 131 ] The plaintiff came to their home and advised them that she was on the waiting list to see a psychiatrist. They asked why and the plaintiff advised them that it was because of K.

B. the accused, then told them everything. [ 132 ] The accused testifies in defence. [ 133 ] He was born in 1974, presently lives in Ontario and is a driver. He met the mother of the plaintiff in 1992 at a Christmas party given by his then friend Da. S.. They were friends until 2006. He moved in with the mother, in her apartment in [Borough B], shortly after the party. [ 134 ] They stayed in that apartment for six or seven months, then moved on Boulevard B for less than a year, but still in [Borough B]. Then, in Ville D until the beginning of 1994. [ 135 ] He was working for [Company A].

He met a girl and asked her if she was willing to join him and his spouse for a trio because at the time, he and the mother of the plaintiff liked to engage in sexual activities with another woman, if the Court understand correctly. The girl was not willing to go ahead with T., only with him. So he broke with the mother of the plaintiff and went to live with the other girl for three to six months.

Then in 1995, he went back to live with T., after a short stay with his parents. [ 136 ] When he met the mother of the plaintiff, she was on welfare as still was the situation in 1995. [ 137 ] From 1994 to his accident in August 1997, he worked for [Company A]. He also worked for a transport company ([Company B]), a company owned by the father of his friend Da.. It was an on and off job at the beginning then on a full time basis in 1996, from 10 in the morning to six at night. As for [Company A] he worked from Wednesday to Friday from 1:00 in the morning to nine thirty in the morning.

For the transport company his

schedule was from Monday to Friday.

[ 138 ] Following his accident in August 1997 and after his hospitalization for a month, he was transferred in a rehabilitation facility for an additional period of one month, more specifically until October 24, 1997. Then he returned on Boulevard A with the mother and the plaintiff. [ 139 ] According to the accused, the mother was a welfare beneficiary from the time he met her until his accident in August 1997. [ 140 ] The accident left him with fatigue, memory problems and attacked his vocal cords, so that he had to speak louder.

He went into physiotherapy and passed his driver’s test in February 1998, whereas the mother obtained her licence after the birth of Z. He continued to receive rehabilitation services as an outpatient for a period of three years. At the beginning, on a daily basis and afterwards three to four times per week. The objective was to develop his skills. [ 141 ] He returned to his job with [Company A] in the spring of 1998, but he couldn’t keep up with the pace. In 1998, the S.A.A.Q. evaluated his residual working capacities and propose many workplaces that necessitate 24 to 40 hours per week.

In 2001, they considered that 24 hours per week was the maximum he could accomplish. He received services to help him reintegrate the market. [ 142 ] They moved in the house on Street A in July 2000. [ 143 ] In 1998, the accused had received a lump sum of $35,000 from the S.A.A.Q. He bought the house with the mother, who started to work in September 1999. The accused states that the mother before working for Stokes in Town A, where his mother was a manager, worked part-time at Zellers, Multimag and Village des Valeurs.

These jobs lasted approximately three months, then she started at Stokes in Town A and in early 2000 was hired as a manager for Stokes, located in Town B, until December 2000. She would travel back and forth by bus. [ 144 ] She then started her maternity leave and afterward went to work for Le Marché A. On Tuesdays and Thursdays, she started at 4:00 in the morning until 3:00 in the afternoon and the remaining days of the week, she started at 7:00 in the morning until 3:00 in the afternoon.

Her friend Lu. would pick her up at their house to go to work. [ 145 ] As for the accused, he returned to work for [Company B] in August 2001 at a pace of three days per week for a period of three to six months. He then started to work with his brother in 2002 at a pace of three days per week. He realized that his raises had no impact on his revenue since the S.A.A.Q. would lower his compensation benefits, so he decided to work full time starting the middle of 2002. [ 146 ] He quit the above job in 2005 and with the left over money from the lump sum he invested in a new business, but it was not a success.

It lasted two or three months then he was out of work. [ 147 ] Then he met his actual wife online. The mother was aware. Each second weekend, he would go in Ontario to see her, more specifically the weekend corresponding with the plaintiff going to see her father. [ 148 ] He worked for four months for Matelas Bonheur and was laid off in 2005 or 2006. Then got another job in a furniture store for an approximate period of one year. [ 149 ] The couple separated in April or May of 2006, following an argument and the mother decided to leave. He stayed in the house and the mother elsewhere in [Borough A].

She then met somebody from England and asked him to take Z on a full time basis. She left for England without paying the rent for her apartment, so he was sued for $3,600. [ 150 ] He decided to finalize the divorce. The mother came back from England and moved in with his best friend Da. and his wife. That is when he stopped speaking with Da.. She then moved in [Borough B] in 2008. He ended up in Kingston and every second weekend both parents would travel halfway for Z’s access and visitation rights. [ 151 ] Before the summer 2002, the mother had no car.

When the mother left for Saskatchewan she wanted their son Z for all summers and he did not agree considering he would be the one to discipline Z the remaining months while she would have the best part because of summer. Z was the subject of parental alienation by the mother and the accused knows it, because he checked the emails and the texts messages between his son and the mother.

Consequently his relation with his son deteriorated. [ 152 ] When the plaintiff met him and Z at the fair an argument occurred because he felt that the plaintiff was treating Z then aged 10 years old, as a baby. [ 153 ] There was never any argument with the mother in regards to finances. [ 154 ] As for camping activities, he denies any swimming activity. Camping was for sightseeing, fishing, and hiking. Even with beaches, lakes and pools on the camping site.

Camping was not for swimming and if the mother and he did not swim then the children didn’t do it. [ 155 ] As for the DYP incident, the mother called him at work to go to school. When they arrived, the mother went in the school and he stayed in the car all the time. She then came out with the plaintiff. He did not discuss the situation with the plaintiff and the mother told him not to discuss the situation with her daughter. [ 156 ] As for discipline at home, he was the one disciplining, since the mother was lenient with rules and their enforcement.

He raised the plaintiff as his daughter, like a proper girl as for chores, school and bedtime. When she would arrived home from school, home work had to be completed right away, before supper. Then it was bedtime. [ 157 ] The issue with the plaintiff concerning electronics like Gameboy, was that they had received a letter from school authorities concerning the use of electronics. So he required that she leave her backsack at the entry making it impossible for her to sneak for example, a Gameboy in it.

[ 158 ] On Boulevard A, the computer was located between the dining room and the living room facing the wall, whereas on Street A, it was in the basement on a desk. The plaintiff had supervised access. [ 159 ] He was stricter than the mother who was lenient. He was the person enforcing the rules. [ 160 ] Concerning the picture referred to by the plaintiff, he has no knowledge of such incident. [ 161 ] He shaves his genitals as far back as 1996. The mother required it to avoid venereal diseases. [ 162 ] The mother never worked more than 46 hours per week and never when receiving welfare benefits.

Before 1999, the mother was taking care of the plaintiff since she was at home. [ 163 ] When the mother was working at Le Marché A, the plaintiff was attending secondary school and he was the one bringing Z to the daycare centre. He recognizes that he was strict, but adds that he could also make jokes and play. [ 164 ] As for losing his temper and making holes in the walls with his punches, the accused states that it happened twice.

Once because he was very tired due to working hours and another time when the mother wanted him to get out of bed while he wanted to sleep. [ 165 ] He never hit or threatened the plaintiff or her mother. The mother was the one doing the laundry on Boulevard A. [ 166 ] The relationship with the plaintiff was great. There were no issues. They were like a real family. Never any sexual behaviour or gesture towards the plaintiff. [ 167 ] Cross-examined, he maintains that the mother started to work in 1999.

Then if exact both of them were at home for a period of approximately 18 months. [ 168 ] When the mother left for work at 4 o’clock in the morning, it never woke him up. The plaintiff would take care of herself. On Street A, the basement was his area. He spent 20 or more hours playing games on the computer during the period he was home. His burnout was physical. [ 169 ] The plaintiff started high school in 2003. She had great notes and the length of her skirt was never an issue. He was a loud speaker due to the problem with his brain following his accident.

Pornographic viewing was at night if the case, when everybody was sleeping. [ 170 ] He started to work full time because his raises had no impact due to the S.A.A.Q. policy concerning compensation. From 1998 to 2001, he was at home. He never went to the beach when camping at Bon Echo site.

If the children wanted to swim it was at the house not when camping. [ 171 ] Notwithstanding the draft agreement, in regards to the mortgage, they did not spend a lot and had no financial problems and yes the plaintiff could cry when disciplined. [ 172 ] The above testimonies as summarized constitute the factual information tendered in evidence. [ 173 ] The documentary evidence tendered is discussed further in the judgment.

DECISION [ 174 ] Prior to the analysis of the evidence a few comments are necessary. [ 175 ] In the case at bar, as in all the cases of sexual nature, in which the accused was an adult person and the plaintiff was a minor at the time of the alleged offences, difficulties arise in regards of collateral or peripheral facts tendered in evidence.

If memory usually impacts on the trustworthiness or reliability of the testimony of any adult witness, it does so in a different way when the adult witness testifies on events linked to childhood incidents. [ 176 ] The judge will evidently apply the same rigorous norms of evaluation, but at the same time, he must appreciate differently the quality of the memory of a witness testifying on events that occurred when the witness was an adult and when the witness testifies on event that occurred when the witness was a child or a young teenager. This situation was addressed by the Supreme Court in R . c.

W . (R) [1] , as applied afterwards in many decisions, namely R . c. Lambert dossier 610-01-005372-119, at paragraph 190, R . c. R.L . [2] , at paragraphs 40 to 43 and in R . c.

Labrosse [3] , at paragraphs 123 and124. [ 177 ] In the present case, all the witnesses are adults including the plaintiff who is the only adult testifying on peripheral or collateral information referring to her life as a child and a young teenager. [ 178 ] Peripheral or collateral information refers in the present case to precise information such as exact dates, addresses, exact year when the family moved from one location to another, from an apartment to a house and all other information that does not directly impact on an essential element of an offence.

It also refers to the various jobs occupied by the mother and the accused, their working schedules and the year. [ 179 ] Evidently, too many inconsistencies and memory gaps can undermine the reliability of a witness as a whole, but unless the accused advances an alibi, the Court should not weigh in its analysis these inconsistencies and memory gaps as if opposing them to an alibi.

Often when the accused denies numerous acts in numerous counts, denial can be viewed as a diluted alibi in the sense where all peripheral information is tendered in evidence to evacuate the possibility of committing each of the alleged acts at a specific time and place. How? By attacking first the trustworthiness of the plaintiff’s testimony as a whole until it impacts on her credibility.

[ 180 ] It is the fundamental right of the accused, presumed innocent, to fully defend himself in the most complete way, but at the same time, the Court cannot require from a plaintiff testifying on her life, when she was aged between six and 15 years, a precise account of the whereabouts of her parents as for jobs, working schedules and other activities without bypassing a basic principle: memory is not time proof and time elapsed can have more impact if the recollection sought is linked to childhood routine and daily life of others. [ 181 ] As for the credibility parameter, the Court refers to the

article of the honourable David M. Paciocco, published in 2017 and entitled “ Doubt about Doubt ” [4] ,

article in which he suggests five non-exclusive and sometimes overlapping factors for disciplined consideration, when assessing credibility of a witness: 1) Plausibility of the evidence, 2) Independent supporting or contradicting evidence, 3) The external consistency of the evidence, 4) The internal consistency of the evidence; 5) The “balance” of the evidence. [ 182 ] As for the acts themselves, essentials elements of the offences, the Court when denial is the defence, faces a plaintiff that describes and situates events in time versus an accused that, if he witnesses, evidently and generally does not say anything concerning the acts considering his defence, but tenders evidence on peripheral and collateral facts. [ 183 ] Thus, it becomes quite clear that peripheral information tendered in evidence by the plaintiff, the accused and other witnesses acquire significant importance and must be weigh delicately since it also serves to assess credibility and trustworthiness. [ 184 ] With the above precisions in mind, the Court proceeds to the analysis of the evidence according to the guideline put forward by the Supreme Court in R . v.

W. (D) [5] . [ 185 ] Does the Court believe the evidence tendered by the accused, after having heard the entirety of the evidence? [ 186 ] The accused testifies quite well, directly without hesitation and without trying to elude the questions. Very calm and soft spoken. He is also very precise concerning dates and locations confirming them with different documents filed or in accordance with them. His demeanour is one that reflects preparation, which is very comprehensible.

For the Court, no positive or negative inferences in relation with his credibility or trustworthiness can be drawn from the demeanour of the accused. He has well prepared, is what can be outlined.

Demeanour, unless in the presence of particular circumstances is rarely significant in assessing credibility issues. [ 187 ] His testimony contradicts the testimony of the plaintiff, not only on the alleged sexual acts, but also and namely on the dates, the locations, the circumstances surrounding the interventions of the DYP, the swimming activities when camping and others. [ 188 ] His testimony also contradicts the testimony of the mother on the circumstances surrounding the DYP intervention, the year the mother started to work, the reason why she started to work, her working schedules and his daily responsibilities when at home and not working. [ 189 ] Furthermore, his perception of his behaviour as a spouse and an acting parent when he was living with the plaintiff and her mother is in complete contradiction with their testimonies. [ 190 ] His testimony concerning his working and rehabilitation activities tend to reduce above plausibility his presence in the house at crucial moments. [ 191 ] The totality of the evidence renders implausible and inconsistent many answers given by the accused during his examination. [ 192 ] At the first step, the Court does not retain in its entirety, the testimony of the accused and for that motive his testimony does not raise a reasonable doubt. [ 193 ] Thus, it is not a case of complete acceptance of the accused’s evidence.

A) Even if the Court does not retain the defence, more specifically the testimony of the accused in its entirety, can the contradictions and inconsistencies between the evidence of the accused and the evidence of the Prosecution be resolved by the Court? [ 194 ] The accused states that the mother started to work in 1999 as confirmed by the “Chronology” document (point #5) filed in evidence as P-1. [ 195 ] First of all, the Court is not linked by that admission because contradicted by the evidence.

Prosecution admits to a mistake when signing the document, but even if it was not the case, the Court would not consider point n o 5 of the document as binding given the overwhelming evidence to the contrary. [ 196 ] The mother affirms that when living on Boulevard A, she was not at the beginning working, as also the case for the previous years. But she decided to join the workforce after the accused’s accident because money was needed.

Which is logical and in line with the monetary impact of the accident suffered by the accused, in August 1997. [ 197 ] Furthermore, she remembers entrusting her daughter to downstairs neighbors, so it means that they were not living on Street A before 1999 or 2000. The mother also specifies that she started to work for Stokes in 1997 and had been working at Zellers just before.

[ 198 ] If the mother joined the workforce because money was needed, it would be against common sense to start working only in 1999, nearly two years after the accident. [ 199 ] Considering that she entrusted her daughter to downstairs neighbors, it means that the accused was not available, so the year is 1997 or beginning of 1998, as states the mother given the accident of the accused in August, 1997.

If it was the neighbor downstairs, then she was working when they were living in the apartment building on Boulevard A. [ 200 ] The DYP incident in 1999, as related by the accused, contradicts both the testimonies of the mother and the plaintiff. [ 201 ] The plaintiff states that they were in the apartment then she mentions in the house and the accused, while the mother was not in their presence, raise his hand and threatened her. She remembers and mimics the gesture. [ 202 ] The mother states that they were called in at school.

She was at work and the accused called her at work stating that school authorities were refusing for him to pick up the plaintiff. The accused called her from school and at one point he was in the school building. [ 203 ] The accused states that the mother called him at work. He went to the school, the mother came out of the building with the plaintiff and he never left his car. [ 204 ] For the Court, if the exact sequence of events cannot with the evidence be pinpointed, remains the following:

a) It confirms the testimony of the plaintiff that, she had disclosed factual information of sexual nature to her friend Y, as confirmed by the document P-1, in regards to the nature of the investigation;

b) It also confirms that, at the time of the investigation, the family was living on Boulevard A, since the investigation took place in June 1999 whereas they move on Street A in 2000;

c) The plaintiff had just turned eight years old the month before, consequently, it also tends to support her testimony as to when the alleged abuses would have started; [ 205 ] The accused states that the mother told him not to discuss the signalment or referral with the plaintiff and that they went back to normal routine afterwards. He had no discussion with the plaintiff about her allegations. [ 206 ] This seems implausible for the Court.

The mother states that the accused was upset. [ 207 ] She further adds that the accused was called back in school after being asked to go out. [ 208 ] For the Court, the testimony of the accused defies common sense. He is suspected of sexual abuse by youth protection authorities and the police are investigating. How can a reasonable person not address the situation with the child and her mother.

The possible consequences are so serious for the accused that not addressing the situation seems inconsistent. [ 209 ] The accused contradicts the plaintiff and her mother on many issues in relation with his behaviour in the household. [ 210 ] The plaintiff states that the accused was controlling, aggressive and very strict. The mother states the same and adds that she had to sign her paychecks and give them to the accused. The accused would yell, punch holes in the wall and criticize on trivial incidents. [ 211 ] The accused responds by saying that he was strict, but not overly strict.

It’s the mother that was lenient. He had to enforce the rules. He admits checking the backsack but the mother denies that it was for electronics. He admits making holes in the walls, but only twice. [ 212 ] For the Court, a person that makes holes in the walls because short fused is a person that has a temper control problem. A person that requires the paychecks of his spouse is a controlling person and arguments arose between the spouses, because of that.

The mother did not buy herself a car even if she was working, it is the accused that bought the car, as revealed by the evidence. [ 213 ] The testimony of the accused as for swimming activities contradict the testimony of the plaintiff and the mother was not specifically questioned on the subject. [ 214 ] The accused states that no swimming activities took place when the family went camping even if a pool, beach or lake present on the camping site. [ 215 ] As he states if they didn’t do it then the children didn’t. [ 216 ] He admits swimming in the pool with the children and adds that the bottom of a lake rebuked him. [ 217 ] The plaintiff affirms that she swam when camping, at least once. [ 218 ] The Court finds it difficult to believe if not implausible that children camping with their parents would be prohibited from swimming activities, even more when they swim in the pool at home.

It’s common sense. [ 219 ] The accused states that after the DYP incident, he got rid of all pornographic material in the house and the plaintiff states that during some sexual abuses, pornographic material was playing on the TV. [ 220 ] The mother states that the plaintiff refused to go and see or babysit her brother when she was living at a friend’s place (across the accused’s house on Street

A) to complete her school year, after her departure for England and the accused nowhere in his testimony does he contradict or speak about it.

[ 221 ] The accused states that as far as he can remember, when he was living with the mother she required that he shaved his genital parts because of potential venereal diseases. He does not say that he hasn’t a hairy body and the plaintiff affirms that he was hairy and did not always shave his genitals parts. [ 222 ] The accused affirms that he did not get up in the morning when the mother left to go to work, because the plaintiff could manage by herself.

Considering that he was strict and controlling and given the age of the plaintiff who was not yet attending secondary school in 2001, while the mother had started at le Marché A, the Court does not believe the accused. [ 223 ] If the mother is not credible or trustworthy on some points, the Court considers that she is credible and trustworthy as to the year of her entry on the workforce, her hours of work and the different places of work, including the travelling hours. [ 224 ] She states that before the incident with the DYP, she had discussed with her daughter inappropriate sexual behaviour and that her daughter refused to discuss the situation with her after the DYP episode. [ 225 ] The plaintiff contradicts her mother on the first part of her statement and the Court disbelieves the mother as for the second part of her statement.

An investigation made by the DYP and the police concerning sexual abuse allegations, is a dramatic event in a family, even more when the suspect is the spouse of one of the parents. If the child is not believed by the biological parent, then surely that parent will confront the child who does not want to speak. Surely something would be done, since the stability, integrity and viability of the reconstituted family is threatened. [ 226 ] The accused states that the mother told him not to discuss the situation with the plaintiff and adds that everything went back to normal.

A spouse suspected of sexual abuse on the child of his partner, mad about the allegation, will simply not stand there and do nothing about it. It goes against basic common sense. [ 227 ] Reasonable parents would surely want to know what the plaintiff said to her friend Y and why if they don’t believe her.

Even if the parents are not reasonable parents, they surely do not want as individuals, a repetition of the situation where they would again be confronted to Youth authorities and police investigators. [ 228 ] The contradictions and inconsistencies listed above are not the only ones that can be found in the evidence. The Court, when analyzing the conflict between the evidence of the Prosecution and the evidence of the accused, comes to the conclusion that conflicting evidence does not raise a reasonable doubt, since they can be resolved by reviewing the entirety of the evidence.

B) Even if the Court completely rejects the defense of the accused after having analyzed the entirety of the evidence, remains the question of deciding if the evidence tendered by the Prosecution, convinces beyond a reasonable doubt that the accused committed the acts and is guilty. [ 229 ] For the following reasons, the credibility of the plaintiff is not a stake. [ 230 ] She is very nervous, but does not hesitate and answers questions simply. She experiences memory problems and will often answer that she does not remember. But at the same time, she does not try to add where she could.

For example, she confirms twice that she has never been hit by the accused. She also confirms that she never saw the accused hit her mother. [ 231 ] She explains why in 1999 she denied sexual abuse and explains that she was scared and had been threatened by the accused and scared for her family.

The mother confirms that the children were afraid and stressed by the accused. [ 232 ] Even if she knows that it doesn’t make sense that the accused would have been interviewed or was in the same room as her when she was questioned by youth and police authorities in 1999, she maintains that according to her memory, he was present.

For the Court, this answer is one example that her testimony is credible, she doesn’t try to circumvent her memory, so that her testimony be in line with logic, thus more believable. [ 233 ] The testimony of the plaintiff is not trustworthy on many peripheral issues namely: - When the sexual abuses stopped. She states that the sexual abuses stopped when they left the house on Street A in 2004, but the evidence points towards 2006. In her cross-examination, she is not absolutely sure, maybe it is 2005, but still she is incapable of specifying the exact year.

But at the same time, she affirms that the accused told her that he would end the sexual acts when she would have her first menstrual periods which happened in 2002 or 2003.

She adds that the sexual abuses continued afterwards, until they left the house and that was in 2006, when she was aged 15 years old; - She is also incapable of listing in order with the exact dates, the jobs of her mother and where they were living for each job; - She is incapable of putting the exact date when the incident on the beach took place and also adds in cross-examination that her brother was on the beach, while she did not mentioned him during her examination; - She is incapable of enumerating the jobs of the accused, when and where. [ 234 ] On the other hand she recalls precisely: - The first incident of sexual abuse.

The accused brought her in his room, made her stroke his penis, kissed and cuddle her; - She remembers that her mother was in the laundry room and that they were living in an apartment on Boulevard A. Her description of the apartment corresponds to the description given by the other witnesses and as for the time frame it corresponds with her age and the place where they were living;

- She recalls precisely that when the accused penetrated her in the anus it was by mistake the first time and that she yelled and had diarrhea after such episodes; - She remembers precisely choking when her head was dangling while the accused had his penis in her mouth; - She recalls precisely the position 69 and the fact that the accused held her upside down; - She recalls precisely the towels under her because the accused took precautions for possible bleeding; - She recalls that after the DYP episode sex was rougher; - She recalls that the accused wanted her on four legs most of the time; - She recalls that before the first vaginal penetration, the first incident she reported, repeated itself; [ 235 ] She remembers telling her friend Y when they were in grade 2, disclosure that brought the DYP and police intervention. [ 236 ] She recalls that the sexual abuses took place in the morning, when her mother left early and also in the evenings when the mother was working and it matches the working schedules given by the mother and the accused, even if not precise for the date. [ 237 ] She also recalls a fellatio in the basement of the house where the computer was, while the accused was sitting in a lazy boy. [ 238 ] She can’t put a number on the sexual abuses because it happened to many times over the years. [ 239 ] The testimony of the plaintiff is not trustworthy as for many dates when each sexual abuse happened, but her testimony is in accordance with the working

schedule of the mother, with the presence of the accused in the apartment following his accident and in the house afterwards. Her testimony is also in accordance with the description of the premises. [ 240 ] Having analyzed the entirety of the evidence, the Court concludes that the plaintiff is a credible witness and that her testimony is trustworthy for the most part, notwithstanding discrepancies on peripheral facts. [ 241 ] These inconsistencies are not in number and in nature, in the context and circumstances of the case, linked to dishonesty or a hidden motive.

The plaintiff is asked to specify dates and places and link them to events that occurred, when she was a child and a young teenager.

The plaintiff can, for all the sexual abuses, situate the location, approximately how old she was, but can’t link the events to specific years. [ 242 ] As for the end of the sexual abuses, she links it to when she left the house with her mother and her brother, which is in 2006 not in 2004 when she was 13 years old. [ 243 ] She is not reliable for the year but she also added that the abuses continued after her menstruations that started at 11 or 12 years old in 2002 or 2003, which supports that they would have ended when they left the house in 2006 not in 2004, as she states. [ 244 ] As stated previously, unless particular circumstances tendered in evidence and unless in the presence of an alibi, the Court will appreciate these inconsistencies keeping in mind the comments made at the beginning, even if evaluation remains a rigorous exercise. [ 245 ] The evidence convinces the Court beyond a reasonable doubt that, the accused committed the acts alleged and is also convinced beyond a reasonable doubt that the sexual assaults ended in 2006, not 2004. [ 246 ] Concerning the threats, the Court, with the same reasoning as above, is convinced beyond a reasonable doubt that the accused threatened directly the plaintiff and said to her that he would kill her mother, her father and her brother, but the Court is not convinced beyond a reasonable doubt that the accused threatened to use a firearm. [ 247 ] Before completing, the Court will comment the documentary evidence filed by the accused, as stated earlier in the judgment.

The accused filed numerous pictures of him and the plaintiff at different times, photos showing the plaintiff in a happy mood, smiling and sitting on or holding him.

The pictures are irrelevant to establish or support denial of sexual assaults, in the sense that a photo is a moment in time, not more unless exceptional or particular circumstances tendered in evidence. [ 248 ] As for the document pinpointing dates, locations and excerpts of an investigation report, they can help situate events in time, but they are not binding if contradicted by evidence that convinces the Court of their inexactness more so when incomplete. [ 249 ] Considering the DYP intervention in June 1999 after the plaintiff disclosed information of sexual nature to her friend Y, the testimony of the plaintiff concerning the threats made by the accused is trustworthy, more so if we consider that the threats made before June 1999 did not prevent disclosure.

The plaintiff who had just turned eight years old in June 1999, had not receive threats concerning Y. [ 250 ] The theory of the Defence is that, the mother and her daughter seek vengeance and consequently they lie and it would have started or amplified when custody of Z was an issue, the mother wanting full custody. Or simply that it was a scheme, in order for the mother to have full custody of Z. [ 251 ] There is no factual information tendered in evidence to support the theory advanced by the defence.

Furthermore, from the testimonies of the mother and the plaintiff does not arise directly or indirectly any fact showing a close relationship between mother and daughter. At the best and at the most a neutral relation according to the evidence. It is exact to outline that the plaintiff asked the police to intervene after the departure of her brother for Saskatchewan, but the explanation given by the plaintiff is more convincing then the theory of the defense.

FOR THESE REASONS, THE COURT: DECLARES the accused guilty on counts 1, 2, 3, 4, 6, 7, 8; ACQUITS the accused on count 5. _________________________________ DANIEL BÉDARD, J.C.Q. M e Philippe Vallières-Roland Attorney of the DPCP M e Charles Baudouin Côté Carette Desjardins S.N.A. Attorney of the accused Date of hearing: December 11, 12, 2017 January 9, 10, 2018