2012 QCCQ 20754, 2012 QCCQ 20754

LSJPA — 1252 2012 QCCQ 20754 CANADA PROVINCE OF QUÉBEC DISTRICT OF […] JN 0300 COURT OF QUÉBEC YOUTH DIVISION N°: 525-03-050483-114 DATE : April 12, 2012 ______________________________________________________________________ PRESIDING JUDGE: THE HONORABLE JACQUES A. NADEAU, J.C.Q. ______________________________________________________________________ THE QUEEN, Complainant v.

X (born on […], 1993), Adolescent ______________________________________________________________________ JUDGMENT ______________________________________________________________________ WARNING: No person shall publish the name of a young person or a child or any information that may identify him as having been dealt with under the Youth Criminal Justice Act , or as being a victim or witness in connection with an offence alleged to have been committed by a young person. Every person who contravenes these provisions is liable to prosecution [Sections 110 (1) and 111 (1) of the Y.C.J.A. ]. [ 1 ] 1.

INTRODUCTION [ 2 ] X is accused of committing an assault while carrying a weapon on A and B on June 13, 2011, thereby committing the offences punishable on

summary conviction provided for under Subsection 267

a) of the Criminal Code . [ 3 ] 2. EVIDENCE OF THE DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS [ 4 ] 2.1 Testimony of A [ 5 ] Of slight build (5 feet 4 inches, 105 pounds) and nineteen (19) years of age, the alleged victim states that she met the accused at College A in January of 2011 and that they became best friends although he knew that she already had a boyfriend, B. She denies having had an amorous relationship with the accused. [ 6 ] After their friendship broke down in May, the victim was made aware of some inappropriate comments made by the accused concerning herself on FACEBOOK.

He had apparently called her a « bitch » and a « salope » and she had retaliated by changing his FACEBOOK password thereby depriving the accused of access to his FACEBOOK account. [ 7 ] In their exchanges on FACEBOOK, she recognizes having made statements such as « revenge is best served as a cold dish », « you messed with the wrong person » and « I'm the girl who is going to make you regret you saw light when you were born », but she says that her last assertion was « let bygones be bygones ». She claims not to have read the accused's statement that he would no longer talk about her. [ 8 ] On June 13, 2011 Ms.

A took the initiative of contacting the accused through the latter's sister and when she reached him, she asked to meet with him to settle this matter once and for all. [ 9 ] She went to this meeting with her boyfriend and cousin, the latter remaining in the car while her boyfriend went to smoke a cigarette in front of a church around the street corner. [ 10 ] When she met the accused at around 5 P.M., she found he was walking in a bizarre fashion, had a troubled look on his face and

was agitated. They had an animated discussion in English during which she asked him why he had called her a « bitch » and reiterated she had a boyfriend and wanted to remain friends. [ 11 ] She asked him if he had the guts to repeat it to her face which he did. She claims the cup of coffee she was holding fell on the accused. [ 12 ] According to the victim, the accused pushed her aggressively and she pushed him back whereby he grabbed her and pushed her on the ground repeatedly.

He also shoved her on the hood of a car which hurt her back. [ 13 ] When she was on the ground, the accused allegedly kicked her on the arm on four (4) occasions. He also hit her head on the ground while holding her shoulders. Every time she tried to get up, he shoved her back on the ground. She described him as enraged when he was hitting her. [ 14 ] Ms. A started screaming and her boyfriend came running. At that point, the accused took a kitchen knife with a silver blade measuring ten (10) inches from his back pocket and told them to back off and that they didn't know where he came from.

They tried to calm him down and told him to let go of the knife. The accused was red-faced and shaking. He started running away wielding the knife in the air. [ 15 ] Her boyfriend attempted to run after him on Street A but was arrested by the police. [ 16 ] The victim claims to have had injuries to her head and back, as well as scratches on her feet and body. She was hospitalized until 1 A.M. in the morning and claims to be taking anti-depressant pills to this day. [ 17 ] Ms. A claims that when she saw the accused again at College A, she felt intimidated by him. [ 18 ] 2.2 Testimony of B [ 19 ] Mr.

B is 25 years old, 6 feet, 2 inches tall and weighs 175 pounds. He has always been involved in sports. To his knowledge, Ms. A and the accused were friends. [ 20 ] According to the witness, he did not know the accused nor did he know the topic of the victim's meeting with him. [ 21 ] When he heard the sound of a woman screaming, he was smoking in front of a church on Street B around the street corner about one hundred (100) meters away. When he turned the corner, he saw Ms. A on the ground on her stomach. She attempted to get up and the accused pushed her back on the ground. He saw the accused do this twice.

He did not see the victim strike any blows to the accused. The accused was holding a knife with a blue handle and a ten (10) inch blade, and pointing it at Ms. A. [ 22 ] Upon reaching the scene, the witness told the accused to calm down and put the knife down and the latter was very aggressive and holding the knife chest high and pointing it at him and Ms. A while telling them to back off. [ 23 ] The accused ran away towards the Metro station A and the witness tried running after him but was intercepted and arrested by the police. [ 24 ] The witness did not see any injuries on the accused or Ms.

A but the latter was crying and stating that she had been hit by the accused. Her clothes were all dirty. [ 25 ] 2.3 Testimony of C [ 26 ] As she was walking home from work on June 13 th , the witness saw a bit of a scuffle and stopped at the corner of Street A and Street B next to a church because a man across the street had shoved a woman and was kicking her. The man also kicked the woman over the hood of a car which left a clean foot print on the back of her white denim jacket. He hit her a couple of more times. The witness does remember the woman hitting the man.

The woman was hit hard enough that her purse went flying. [ 27 ] As another man walked up to help her, the man involved in the scuffle pulled a knife with a turquoise handle and an eight (8) inch blade. He waved it at the woman at chest level. He started threatening both of them. The other man never hit the man with the knife. The latter began to run and both the woman and the other man began running after him. [ 28 ] The witness had approached to about twenty (20) to thirty (30) feet from the scene and held the woman's purse and everything she had picked up.

After the incident, she told the woman to get into the ambulance. She remembers that the victim had a couple of cuts although she can't say where they were. [ 29 ] The witness does not know any of the people involved in this altercation. [ 30 ] 2.4 Testimony of D [ 31 ] On June 13 th , the witness was driving down Street B and turned right on Street A.

As she turned the corner, she saw a male and a female on the ground and the male seemed to be repeatedly punching the female while crouched over her and holding a knife with a blue handle and an eight (8) inch blade in his other hand at waist height or at the end of his arm. She did not see the male use the knife in a threatening fashion. [ 32 ] The witness saw the female clearly struggling and trying to get away.

She saw no physical retaliation on the part of the female other than her pushing or blocking the male. [ 33 ] She drove her car as close as she could to the scene (i.e. about 20 feet away) and called 9-1-1 but did not get out of her car

because of the male wielding the knife. She started honking her horn to try and get some attention but this did not alter the situation. [ 34 ] Another male with a larger build came from Street B and intervened by pulling the first male off the female and talking to the male. Both males started walking down Street A and the female started running after them. [ 35 ] The witness also does not know any of the people involved in this altercation. [ 36 ] 3.

ADMISSIONS OF THE PARTIES [ 37 ] The following admissions were made by the parties. • One of the officers who arrived on the scene on June 13 th , Officer Sterling, observed a scratch on the victim's foot and reported she was complaining of headaches as well as back pains. • The accused was arrested on June 16 th at his place of work, his rights were read to him, and he was arrested and brought to the Centre d'enquête A where a search conducted on him proved to be negative. • Upon his arrest on June 16 th , three (3) days after the events took place, the following were observed on the accused: o a 3 inch redness on his left arm; o 3 small cuts or scratches on the right side of his chin; o 2 scratches about 3 inches long on the back of his neck; o a white t-shirt with blood; o a small red dot on the inside of his right hand (at 2 places); o a ripped t-shirt. [ 38 ] 4.

EVIDENCE OF THE DEFENCE [ 39 ] 4.1 Testimony of the accused [ 40 ] The accused measures 5 feet 9 inches. [ 41 ] At the time of these events, he had been raised in a foster home and was studying psychology at College A. He has been working for Enterprise A for the last 3 years as a cashier. [ 42 ] He has known Ms. A since January of 2011 after being introduced to her through a mutual friend. She confided in him regarding her problems with her boyfriend B. Both would argue and fight and had a four (4) month breakup in their relationship.

She accused B of assault and a court order prohibited any contact between them. [ 43 ] As a result, the accused's relationship with Ms. A grew and they started dating after a few months of friendship. This lasted a month and half and she finally ended the relationship once the court order expired. She then resumed her relationship with B. [ 44 ] According to the accused, Ms. A would text him and call him about random things whereas he wanted no contact with her. [ 45 ] On June 5, 2011 while chatting with his friend E, the accused made some unflattering comments on Ms.

A and the latter informed him she had read these exchanges. [ 46 ] As Ms. A had changed his password to access his FACEBOOK account, the accused used his sister's FACEBOOK account to contact Ms. A and ask her why she was hacking with his account. The accused states that she repeated having read what he said about her and that she threatened him. He agreed to no longer talk to her. [ 47 ] On June 13 th , the accused received a call from his sister telling him Ms. A wanted to speak to him.

He contacted the latter who was at his place of work and said he would meet her in about twenty (20) minutes. [ 48 ] The accused states that he saw Ms. A at about 4 P.M. on Street A and that she looked very upset, unclean and unkempt, which was not usual. They engaged in a discussion regarding the comments made by the accused on FACEBOOK. [ 49 ] According to the accused, Ms. A started giving him attitude on the way she was speaking to him and called him a « pussy », so he called her a « bitch ». He hit her hand to prevent her from throwing her coffee on him. She swung her hands at him, scratching him.

He could not get a grip on her as she was moving too fast. He thus pushed her away with his hand in her face. Ms. A came back swinging at him and he pushed her again. He denies kicking her. [ 50 ] The accused claims he felt threatened by her and he started walking away towards Street C while Ms. A kept jumping on him while he pushed her away. This allegedly happened four (4) or five (5) times before he grabbed her by her jacket and put her on the hood of a car for about twenty (20) seconds. [ 51 ] She kept kicking him on his chest and legs and started screaming after B.

The accused backed up and she fell on the ground. As B ran towards him and Ms. A was holding his left arm, he was a bit frightened and intimidated and pulled out his knife and held it in a way it could not be seen

next to his thigh. He did not say a word and denies repeating to tell them to back off. [ 52 ] According to the accused, he doesn't usually have a knife on him but had one then to protect himself, due to the jewelry he wears because he is fearful in his neighborhood. [ 53 ] At first, Ms. A and B stopped, then approached really close to him while B repeatedly told him to calm down. Everybody stopped and then Ms. A punched him in the face.

B moved her away from him and the accused ran away towards Street C while B gave chase. [ 54 ] It never occurred to the accused to call the police as he was only thinking of his own well-being. [ 55 ] The accused canceled his shift at work the next day and described the injuries that were part of the admissions made by the parties and which were noted upon his arrest three (3) days later.

He claims to have taken photographs of these injuries with his cell phone on June 13 th (see Exhibit D-1 en liasse ) as backup in case something were to happen. [ 56 ] He was released with conditions after his arrest and subsequently told by the police at school that he was harassing Ms. A although there was no evidence of such behaviour. [ 57 ] 4.2 Testimony of F [ 58 ] Ms. F is the accused's sister and has know Ms. A since June of 2011. She was introduced to her by her brother when he brought her to his sister's apartment.

According to the witness, they were very affectionate and exchanged kisses in her presence. [ 59 ] On June 13, Ms. A contacted her by phone at least seven (7) times at work to get in touch with the accused. [ 60 ] 5. ANALYSIS OF THE EVIDENCE [ 61 ] 5.1 The context of the previous relationship [ 62 ] Clearly, the recent breakup in the relationship between Ms. A and the accused had impacts which culminated in the events which occurred on June 13, 2011. [ 63 ] The evidence reveals that this relationship was probably more than just best friends as Ms.

A described it given the testimony of the accused and of his sister. [ 64 ] It was also established that the meeting of June 13 th was initiated by Ms. A who wanted to meet the accused to resolve the issue of the comments he had made regarding her on FACEBOOK. [ 65 ] 5.2 The events of June 13, 2011 [ 66 ] These events unfolded towards the end of the afternoon and the versions offered by Ms. A and the accused are for the most

part contradictory. [ 67 ] The other eyewitnesses who testified on behalf of the Director of Criminal and Penal Prosecutions did not view the whole sequence of the events but arrived on the scene as they were unfolding. [ 68 ] The Court first notes that it does not have to choose between both versions of the events but must rather take into account all of the evidence submitted to determine if it is convinced beyond a reasonable doubt that the events which constitute the grounds for the charges brought against the accused did in fact occur. [ 69 ] Applying the criteria established in The Queen v.

W. (D.) , [1991] S.C.R. 742, the Court must first establish whether it believes the accused. The Court does not find his version to be credible for the following reasons. [ 70 ] The accused portrays Ms. A as the aggressor in their altercation and depicts himself as repeatedly trying to push her away and subsequently holding her on the hood of a car for about twenty (20) seconds. He claims to have felt threatened by her. [ 71 ] The Court finds this version somewhat surprising considering Ms.

A is five (5) inches shorter than the accused and weighs only 105 pounds. [ 72 ] In addition, the accused's version that he doesn't usually have a knife on him is inconsistent with his assertion that he had the kitchen knife on him because he is afraid in his neighborhood due to the jewelry he wears. The type of knife, the length of its blade (i.e. 8 or 10 inches) and the fact that he alleges to have held it next to his thigh does not jibe with the fact that he pulled it out at the time Mr. B arrived because he felt threatened and intimidated. It is important to note that Mr.

B is 6 feet 2 inches tall and weighs 175 pounds. [ 73 ] The accused denies telling Mr. B to back off but does recognize that the latter repeatedly told him to calm down. [ 74 ] The Court also finds that if the accused did indeed sustain all of the injuries on June 13 th that were noted in the admissions and allegedly took pictures of some of them with his cell phone on that same day, it would have been reasonable to expect him to report these incidents to the proper authorities immediately rather than wait and use them as backup in case something happened.

The Court is not convinced that all of these injuries were indeed sustained on June 13 th . [ 75 ] If indeed, as the accused claims, Ms. A was repeatedly jumping on him while he was walking away, why did the accused simply not run away from the scene to avoid any further escalation? The height and size differential between them certainly favored the accused.

[ 76 ] Turning now to the second step under the analysis set out in The Queen. v. W. (D.) , cited previously, the Court must question itself on the existence of a reasonable doubt as a result of all of the evidence heard. [ 77 ] In this regard, the testimony of the two (2) independent witness, Ms. C and Ms. D, clearly depicts the accused as the aggressor and Ms. A clearly struggling to get away and not physically retaliating. Ms. C also states that the accused kicked Ms. A over the hood of a car which left a clean footprint on the back of her white denim jacket whereas the accused denied having kicked her.

Both witnesses recall the knife being waved at waist or chest level by the accused and not on the side of his thigh. [ 78 ] The Court finds that even if these two (2) witnesses did not view the whole sequence of events, their testimony is very credible and has significant probative value given that they do not know any of the people involved in this altercation. [ 79 ] Counsel for the accused raises the argument of self-defence which is set out in Subsection 34 (1) of the Criminal Code : 34.

(1) Self-defence against unprovoked assault – Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself. [ 80 ] In The Queen v.

Hebert , [1966] 2 S.C.R. 272 , it was ruled that for such a defence to be admissible, there must be a reasonable doubt as to the existence of all of the elements of this defence, namely: 1. the accused was attacked illegally; 2. the accused did not provoke the attack; 3. the accused used force without intending to cause serious bodily harm; 4. the accused only used the force necessary to counter the attack. [ 81 ] The attorney for the Director of Criminal and Penal Prosecutions cites the Québec Court of Appeal's ruling in Rousseau v.

The Queen , 2008 QCCA 1646 , as support for the proposition that an argument of self-defence cannot apply when the victim is in a vulnerable position where she cannot strike the accused. [ 82 ] In the matter at hand, both independent eyewitnesses placed Ms. A in such a vulnerable position and confirmed they did not see her retaliate in any way. [ 83 ] In a nutshell, the Court finds that the evidence taken as a whole does not raise a reasonable doubt as to the fact that the accused committed an assault on Ms. A while carrying a weapon. [ 84 ] As for the charge brought against the accused regarding Mr.

B, Subsection 265 (1) (

b) of the Criminal Code provides that: 265.

(1) A person commits an assault when […] (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or […] [ 85 ] Given that the evidence establishes that the accused pointed the knife at Mr. B when the latter came to the rescue of Ms. A, the Court once again concludes the evidence taken as a whole does not raise a reasonable doubt as to the fact that the accused committed an assault on Mr. B while carrying a weapon. [ 86 ] 6. CONCLUSIONS [ 87 ] Pursuant to the third step in the analysis proposed in The Queen v.

W. (D.) , the Court is convinced beyond a reasonable doubt of the accused's guilt as to the charges brought against him regarding Ms. A and Mr. B. [ 88 ] AS A RESULT, THE COURT HEREBY: [ 89 ] DECLARES the accused, X, guilty of having committed an assault on A as well as on B while carrying a weapon, thereby committing the offences punishable on

summary conviction provided for under Subsection 267

a) of the Criminal Code .

Town A, April 12, 2012 __________________________________ JACQUES A. NADEAU, J.C.Q. Mtre Annie Dawson-Laforest Attorney for the Director of Criminal and Penal Prosecutions Mrs. Adrianna Chafoya Hunter, stagiaire Mtre Christian Benoit Attorneys for the accused Date of hearing: March 6, 2012 JAN/mcl