2011 QCCA 148, 2011 QCCA 148

Unofficial English Translation Dusseault c. R. 2011 QCCA 148 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF M ONTREAL N o : 500-10-004031-082 ( 500-01-015285-056 ) RECORD OF PROCEEDINGS DATE: JANUARY 28, 2011 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. FRANÇOIS DOYON, J.A.

NICOLE DUVAL HESLER, J.A. [22] APPELLANT COUNSEL DANIEL DUSSEAULT Mtre Nellie Benoit ROCK, VLEMINCKX, DURY, LANCTÔT & ASSOCIÉS RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre Kathleen Caron CRIMINAL AND PENAL PROSECUTING ATTORNEY COUNSEL [23] On appeal from a verdict of the Superior Court, District of Montreal, by a jury (the Honourable Mr. Justice Fraser Martin presiding), rendered on December 5, 2007, which convicted the appellant. NATURE OF APPEAL : CONVICTION – SECOND DEGREE MURDER

[24] Court clerk: MARC LEBLANC Courtroom: PIERRE-BASILE-MIGNAULT HEARING File continued from January 26, 2011, to January 28, 2011, so that the judgment could be filed. Judgment rendered – see page 3. [25] Marc Leblanc Court clerk [26] PER CURIAM JUDGMENT [27] 1 The appellant appeals from a verdict of second degree murder. He raises two grounds of appeal: - the trial judge erred in law by refusing to put the defence of provocation to the jury; and - he also erred by dismissing the Corbett application [1] that sought to prevent the prosecutor from cross-examining him using some previous convictions.

THE DEFENCE OF PROVOCATION 2 In September 2005, the appellant was temporarily providing shelter to the victim until she could find a job and move into her own apartment. 3 During the week preceding the homicide, their relations were tense. The victim did not seem to be looking seriously for a job, despite her promise to do so, and reproached the appellant at all levels. 4 On the day of the events, the situation deteriorated. After a series of offensive insults from the victim, the appellant decided to pack up her personal effects so that she would finally leave his home.

At the same time, according to the appellant, the victim was eating an apple, using a small kitchen knife for that purpose. She advanced toward him, with the knife in her hand. He overpowered her, grabbed the knife, and stabbed her about thirty times. 5 The appellant admitted that he had caused the victim’s death but argued that he should be guilty only of manslaughter.

To that end, he pleaded provocation. 6 The trial judge refused to put such a defence to the jury, believing there was no evidence that the victim’s words and actions could constitute “a wrongful act or insult of such a nature that it is sufficient to deprive an ordinary person of the power of self-

control”. [2] In other words, the evidence did not meet the objective element of the test for the defence of provocation. 7 The appellant demonstrated no error on the part of the judge in drawing such a conclusion. The facts could in no way serve as the basis for a defence of provocation, and the evidence did not meet the air of reality test, as defined in R. v . Cinous . [3] The insults and abuse described by the appellant as well as the victim’s conduct were certainly not of a nature to deprive an ordinary person of his power of self-control, as required by

section 232 Cr. C ., even taking into account the context and the history of the relations between the victim and the appellant. 8 It must be noted that the appellant was heavily intoxicated with alcohol and cocaine at the time of the events. It is possible that intoxication was the true cause of his retaliation. Moreover, that is what he seemed to admit during cross-examination: [ translation ] But when she came at me, I was scared. I’ve always said so, I was scared. Even if I weigh two hundred (200) pounds, I was scared. I was scared she would kill me so I stabbed her.

Today, I know that if I would have been sober, it wouldn’t have happened.

It’s clear, it’s just so clear. [Emphasis added.] 9 It goes without saying that intoxication is not one of the personal characteristics to be taken into account in an assessment of the objective test for the defence of provocation. 10 In reality, the true defence here was voluntary intoxication, which the jury rejected, and the appellant concedes that the judge’s instructions on this matter were free of error. 11 In conclusion, it is true that the judge committed a blunder when he wrote that: [ translation ] I believe this excerpt resolves the debate.

The evidence in my opinion is clear; apart from intoxication, there is nothing in the evidence to support the conclusion that the action by Ms. Poirier, especially taking into account the fact that the accused succeeded in controlling the situation and taking possession of the knife, [was sufficient] to provoke an ordinary man to stab the victim. [Emphasis added.] 12 Clearly, the question involves asking whether an ordinary person’s power of self-control could be affected by a wrongful act or insult rather than determining whether the wrongful act or insult could provoke an ordinary person to stab the victim.

This blunder does not, however, change anything in the evidence, which remains deficient and insufficient for the defence to be put to the jury. THE CORBETT APPLICATION 13 At trial, the appellant asked the judge to prohibit the prosecution from using his history of violence, including robbery, in his cross-examination.

The judge dismissed the application. 14 Here are the appellant’s previous convictions: 1994 (February): - wrongful act: probation order - two robberies: fifteen months’ imprisonment - fraud and possession of stolen goods: nine concurrent months - impersonation: nine concurrent months - conspiracy: nine concurrent months - conspiracy: fifteen concurrent months 1994 (September):- two counts of assault and uttering threats: 2 years 1996: theft and assault: fine 1999: robbery: fifteen-month conditional sentence 2000: - robbery: two years less one day - possession of a weapon: two years less one day, concurrent 2003: two robberies and armed assault: two years. 15 In brief, if the judge had allowed the appellant’s application, the jury would have been under the erroneous impression that, from 1996 (when his sentences of two years’ imprisonment ended) until 2005, at the time of his arrest, the appellant was a model citizen.

Given that the appellant’s credibility was at issue, this simple observation argued for dismissal of the application. Such an incomplete picture would have certainly misled the jury.

16 In appeal, the appellant revised his position. He admitted that the 2003 robberies should be left to the jury’sassessment to avoid the false impression described in the preceding paragraph. Nevertheless, he argued that the judge should havereached that conclusion on his own. Such an argument trivializes the importance of an application brought by a party. It is true that ajudge may allow or dismiss a motion in whole or in part only.

On the other hand, it is also necessary that a party accept and assume hisapplications. 17 We are of the opinion that, given the circumstances of this case, the appellant has not demonstrated that the trialjudge committed an error that would justify our intervention by exercising his discretionary power as he did. 18 Moreover, the number of convictions and their repetition may show that an accused does not respect the law, which can undermine his credibility. As stated in Tremblay v. R.:[4] [translation] [18] Furthermore, persistent contempt for the law is relevant to assessing a witness’ credibility.

It may be inferred that an individual whorepeatedly breaks the law has little respect for the truth and is therefore more likely to lie. ... 19 In this case, it is a concern that also argues for dismissal of the application. 20 Finally, the appellant concedes that the judge’s instructions contained no error regarding the use of his priorconvictions. Accordingly, in all likelihood, the jury did not use them as evidence of propensity. 21 FOR THESE REASONS, the Court: [28] DISMISSES the appeal. JACQUES CHAMBERLAND, J.A. FRANÇOIS DOYON, J.A. NICOLE DUVAL HESLER, J.A. [1] (SCC), [1988] 1 S.C.R. 670. [2] R. v.

Thibert, (SCC), [1996] 1 S.C.R. 37, cited with approval in R. v. Tran, 2010 SCC 58 at para. 23. [3] 2002 SCC 29 , [2002] 2 S.C.R. 3. [4] 2006 QCCA 75.