r v. GEORGI SPITZER, 2020 QCCQ 1176

R. c. Spitzer 2020 QCCQ 1176 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL Criminal and Penal Division No: 500-01-132740-165 DATE: March 12, 2020 ______________________________________________________________________ BY THE HONOURABLE CHRISTIAN M. TREMBLAY, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

GEORGI SPITZER Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Restriction on Publication By Court Order, information that may identify the person described in this judgment as “the complainant” may not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application. See the Criminal Code , s. 486.4 . I.

INTRODUCTION [ 1 ] The accused is charged on a single count indictment with assaulting M. S. between January 1 and February 28, 2013, contrary to s. 271 of the Criminal Code . [ 2 ] The complainant and the accused know each other since they were in a relationship at the time of the events. [ 3 ] Even though he had no obligation to testify, the accused presented a general denial of the facts alleged by the complainant. II. FACTUAL OVERVIEW A. The testimony of the complainant [ 4 ] Mrs. S. met the accused in February 2012. The relationship started in March 2012.

They did not live together, but she went to his apartment from time to time. [ 5 ] At the end of January or at the beginning of February 2013, she went to the accused’s apartment. She believes it was after work because she had taken a shower as she always did after work (she is a nurse). [ 6 ] After the shower, she had a discussion with the accused. She alluded to the theft of her jewelry. She told him she wanted to end their relationship. She expressed her intention to leave. [ 7 ] She noticed the accused became less relaxed and more tense.

He said: “Well, let’s have sex.” She told him she would not. [ 8 ] When she tried to leave, he grabbed her by the arms and threw her on the bed. He then jumped on her and they started fighting. She tried to resist. She was afraid. She was out of breath very fast. She was afraid for her life and did not expect to have sexual intercourse with the accused. [ 9 ] All she wore was a bathrobe and panties. After he kissed her, she felt she was penetrated by the accused. She doubts it was the accused’s penis. She felt penetrated by something sharp, very hard and very small. The act was fast.

Then she realized he finished ejaculating beside her and became soft on top of her body. [ 10 ] She became angry and pushed him away. She said she was going to complain to the police and he said she would not do so. [ 11 ] She took another shower, she cried and she left. She does not think she slept there, but she does not remember. [ 12 ] She continued to keep in touch with him until April 1, 2013. Then he informed her he no longer wanted to continue the relationship with her, considering he had a new girlfriend in his life. [ 13 ] She did not file a complaint with the police before August 2014.

B. The testimony of the accused [ 14 ] The accused denied having had an argument with the complainant in January 2013. They never had any conflict. [ 15 ] They saw each other on Valentine’s Day. [ 16 ] He denies having “raped” her. He has erectile dysfunction and he needs to take medication about 30 minutes before sexual intercourse. III. OBJECTIONS [ 17 ] During her testimony, the complainant referred to the accused’s past behaviour to explain why she was afraid when she was on the bed after he had grabbed her. [ 18 ] The defence lawyer objected to this line of questioning.

The Court heard the evidence subject to deciding the objection on the merits. For the following reasons, the objection is sustained. [ 19 ] For the Crown, the complainant’s explanation should be considered as a simple narration of facts. [ 20 ] For the Defence, bad character evidence is not necessarily related to the offence. [ 21 ] The complainant referred to Mr.

Spitzer’s excitement with regard to the case of Guy Turcotte. [1] This is why she was so afraid. [ 22 ] This evidence is not relevant to the essential elements of the offence the accused is charged with here. [ 23 ] The Crown cannot use collateral facts to enhance the complainant’s credibility. [2] [ 24 ] In addition, this evidence may have the effect of portraying the accused as someone violent even if that is not the prosecutor’s goal.

Evidence of bad character is in principle inadmissible. [3] The rule is the same for a personality trait. [4] The accused must be convicted on proof of what he did, not what he is or was. [5] [ 25 ] The second objection concerns the criminal record of the accused. He served a prison sentence for several years in the U.S.A. for rape and was convicted of fraud in Quebec. In 2016, he received a suspended sentence after having been detained during the entire proceedings. [ 26 ] The only offence the Court will consider is the conviction for fraud.

It may be relevant for the Crown to attack the credibility of the accused. [ 27 ] The other conviction for a similar crime to the offence the accused is charged with in this file should not be taken into account, considering that the prejudice exceeds the probative value. [6] IV. ANALYSIS

A) Basic principles [ 28 ] My former colleague, Justice Patrick Healy, who now sits on the Quebec Court of Appeal, summarized the key guiding principles regarding the presumption of innocence contained in s. 11(

d) of the Charter in R. c . Zoumpoulias : [3] The presumption of innocence ensures that no person may be found guilty unless the offence charged is proved beyond reasonable doubt. Whether a reasonable doubt arises from the prosecution evidence, evidence led by the defence or an assessment of all of the evidence taken together, the accused must be acquitted if there remains a reasonable doubt on the whole of the evidence at the end of the case.

In this respect, the credibility of a witness is of central importance because if the testimony of a witness raises a reasonable doubt as to its reliability, it might as well raise a reasonable doubt with respect to an essential element of the offence or a matter of defence. If there is a conflict in the evidence, the trier of fact is not obliged to make a choice in favour of one version or another.

This might well be the result in a given case if the judge is led to this conclusion by the force of the evidence, but conclusions of fact must always reflect an examination and evaluation of the whole of the evidence. [4] The Supreme Court has given guidance on these principles in W.(D.) The Court has reiterated that the presumption of innocence and the assessment of evidence, including the credibility of witnesses, are not matters of form but of substance.

Whether a judge follows textually and schematically the criteria set out in W.(D.) or assesses them in some other manner, the presumption of innocence requires that there be a careful evaluation of all the evidence before the court determines whether the charge is proved or whether there remains a reasonable doubt. [5] W.(D.) does not impose a mechanical formula to be followed in the evaluation of evidence. The Supreme Court has repeated this caution on several occasions.

This jurisprudence reminds us that the presumption of innocence requires the prosecution to prove the guilt of the accused beyond reasonable doubt. It lies with the trier of fact at the end of the trial to examine all of the evidence presented before the court and to evaluate it so as to determine whether the prosecution has discharged its burden. The accused has nothing to prove and the prosecution is not required to prove guilt beyond all possible doubt but beyond all reasonable doubt.

If there remains a reasonable doubt at the end of the trial and after a careful examination of all of the evidence, including questions of credibility, the accused must be acquitted. It does not matter whether a reasonable doubt touches a matter of defence or an element of the offence. If a reasonable doubt subsists after an assessment of all the evidence, an acquittal is required. [7] [References omitted]

B) The essential elements of the offence

[ 29 ] As set out by the Supreme Court of Canada in R. v. Ewanchuk [8] , the external circumstances of sexual assault are: i. touching; ii. the sexual nature of the contact; and iii. the absence of consent. The mental element in sexual assault has two components: i. the intention to touch; and ii. knowledge, or recklessness of, or wilful blindness towards lack of consent. [9]

C) Consent [ 30 ] Parliament has enacted s. 273.1 of the Criminal Code , which defines consent for sexual assault cases . As set out by the Supreme Court in R. v. J.A. , consent to sexual activity is entirely subjective and requires an operating mind. [10] Professors Julie Desrosiers and Geneviève Beausoleil-Allard, in the second edition of their book L’agression sexuelle en droit canadien, explain how free and informed consent can be expressed in different ways: Un consentement libre et éclairé peut s’exprimer par des paroles ou par des gestes, par un sourire ou une certaine attitude.

S’il n’est pas nécessaire de verbaliser expressément son consentement, s’il est entendu que le message peut passer par la gestuelle, il n’en demeure pas moins qu’en matière sexuelle, le consentement doit être extériorisé d’une manière ou d’une autre, puisque la possibilité d’un consentement tacite ou implicite a été clairement rejetée par la Cour suprême dans l’arrêt Ewanchuk. [11] [ 31 ] That consent must be present at the time the sexual activity in question takes place (s. 273.1(1.1) Cr. C.). [ 32 ] There is no consent if the complainant is facing one of these situations [12] (s. 273.1(2) Cr.

C.): • the agreement is expressed by the words or conduct of a person other than the complainant; • the complainant is unconscious; • the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1); • the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; • the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or • the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity. [ 33 ] There is no such thing as “tacit consent”. [13] [ 34 ] The complainant has no obligation to prove she/he communicated her/his non-consent to the accused. [14] [ 35 ] The victim has no obligation to report the aggression promptly (s. 275 Cr.

C).

D) The credibility versus the reliability of a witness [ 36 ] In order to found a conviction or proof beyond a reasonable doubt, testimonial evidence must be both credible and reliable. [ 37 ] The credibility of a witness depends on their sincerity, that is, a willingness to speak the truth as the witness believes it to be. [15] [ 38 ] The reliability of the witness’s testimony depends on the accuracy (exactitude, precision) of their testimony and the witness’s ability to accurately observe, recall and recount the events in issue. [16] [ 39 ] In the presence of diametrically opposed versions, it is not a credibility contest.

There is also no need to choose the more credible of the two versions. [ 40 ] The complainant’s credibility cannot be affected in any way because she waited several years before making a complaint to the police (s. 275 Cr. C.). [ 41 ] It is also important to recall that the complainant’s testimony alone may lead to a guilty verdict. Corroboration is not necessary (s. 274 Cr. C.). [ 42 ] Testimony is assessed globally. Never in a vacuum. [17]

E) Submissions of the parties [ 43 ] Both parties consider this to be first and foremost a matter of credibility and reliability of the testimony of both the complainant and the accused. [ 44 ] The defence lawyer asserted that the complainant’s testimony is neither credible nor reliable, considering the numerous

contradictions and omissions in her testimony. [ 45 ] For the Crown, even if the complainant’s testimony is not perfect, she told the truth concerning the event. The accused’s blanket denial is not sufficient to raise a reasonable doubt.

F) Case at bar [ 46 ] In the case at bar, it is crucial to determine the credibility and the reliability of the witnesses. [ 47 ] Even though the accused did not give his own specific version of the event described by the complainant, his denial could be assimilated to a contradictory version for the purpose of analysis. [ 48 ] It is useful to start with the accused’s testimony. His version is quite simple.

He did not have an argument with the complainant in January 2013, and he denies having sexually assaulted her. [18] He invokes his erectile dysfunction and the need to take medication if he wants to have an erection. They never had any conflict. [ 49 ] The accused’s version of the relevant facts is evasive and very general. If he did not give a specific version of facts, it is not because his memory is failing. He recalls how he met the complainant and affirms he had a Valentine’s Day dinner with her.

He also recalls how and when the relationship ended. [ 50 ] In cross-examination, he admitted he sometimes lies like everybody. He said that white lies are acceptable. In general, everybody tells white lies. The Court had the feeling the accused trivializes lying. When asked if he would lie with regard to financial gain, he said never . This answer is surprising, considering he was recently convicted of fraud. [ 51 ] This fraud conviction compels the Court to be careful with the credibility of the accused. This crime is relevant to the integrity of the accused. In the case at bar, it diminishes his credibility.

The reliability of the accused’s testimony is not an issue here, considering his general denial of the main facts. [ 52 ] As for credibility, it is seriously questionable given the lack of transparency, his casualness and the lack of seriousness with regard to the truth and his conviction for fraud. [ 53 ] The Court notes in passing that the failure to accept the testimony of the accused does not make the complainant’s testimony credible and reliable. Her testimony must be analyzed on its own merits.

The Court does not have to choose one of the two versions. [ 54 ] During the examination in chief, the complainant gave a detailed version and seemed fairly candid, although her version was sometimes rather curious. On the other hand, the cross-examination revealed that her recollection of events was unreliable, her testimony sometimes contradicted the earlier version given to the police, and she failed to mention certain important details to the police in her statement.

In addition, her testimony was not entirely disinterested as she had other grievances against the accused. [ 55 ] The Court does not expect a perfect version of facts from the complainant. It is perfectly normal that after six years the complainant has forgotten certain secondary details. On the other hand, with respect to the facts surrounding this alleged crime, the Court must be able to give credence to the complainant’s testimony, especially since there is no other evidence here. [ 56 ] In chief, the complainant affirmed she felt like she was being penetrated by “something sharp”.

She was not sure if it was Mr. Spitzer’s penis. She did not have the feeling of being penetrated by a penis. [19] She said: “It actually felt [like] something very hard and very small and …” [ 57 ] Despite this statement, she adds that it all happened very quickly and after Mr. Spitzer ejaculated beside her, he lost his erection on top of her body. [ 58 ] Of course, it is possible to imagine she was penetrated by an object (sharp, hard and small). However, she does not explain how she could have been mistaken. [ 59 ] In addition, in cross-examination, she claimed that Mr. Spitzer had ejaculated inside her vagina.

There is an important contradiction there. [ 60 ] Mrs. S. recognized that she could not remember what she discussed with Mr. Spitzer before he accused her of being unpleasant. All she recalls is that she did not want to be there. However, in chief, she claimed to have discussed her desire to break up with him. She even alluded to the theft of her jewelry. Her version is therefore unreliable. [ 61 ] On August 26 or 27, 2014, Mrs. S. gave a version of facts to Detective Sergeant Annie Vigeant of the Montreal Police Service. She affirmed not giving all the details to the police. [ 62 ] When cross-examined about Mr.

Spitzer’s suggestion when he stated: “Let’s have sex”, she had a hard time admitting that she never gave out that information to Detective Sergeant Vigeant. [ 63 ] Mrs. S. also admitted that she never said to Detective Sergeant Vigeant that she was scared of being beaten up when she tried to leave the apartment. [ 64 ] In order to explain these significant shortcomings, she stated that when she spoke with police, her intention was not to report the sexual assault. She was seeking help. She wanted to be listened to.

In the past, she had called the police but nothing came of it. [ 65 ] This explanation is hardly convincing. The Court has to be careful with this explanation. The statement made to the police concerned the sexual assault. Why hadn’t she revealed these important facts to Detective Sergeant Vigeant? More than six years after the facts, she remembers these facts? It is somewhat curious.

[ 66 ] In chief, she said that after the accused threw her on the bed, she fought with him. She described what she tried to do to escape the situation. However, in her statement, she said: “It took me a couple of seconds to pull myself together and start fighting back. I didn’t even have to , he just became soft on me.” This is an important contradiction in the complainant’s testimony. [ 67 ] During cross-examination, the Defence lawyer asked her: Q. Do you have a good recollection about what happened or not? And she replied : A. Not at all. Some pieces, yes.

Some pieces, no. [ 68 ] This answer undermines the complainant’s version of the story. [ 69 ] She claims that Mr. Spitzer was texting her after the event. She did not show Detective Sergeant Vigeant all the texts he sent her. Why wasn’t she fully transparent with the investigator? She said that in the past she did not obtain the collaboration of the police, but in August 2014, she did not offer her full collaboration to the police... It is a curious reaction. [ 70 ] When cross-examined about why it took her a long time to file a complaint, her response was inconsistent.

At first, she said she felt threatened by Mr. Spitzer. She had no experience with the Canadian legal system and Mr. Spitzer had cautioned her against doing so. Then she denied that she said to Detective Sergeant Vigeant that she did not want to complain because she wanted her gold back. She claimed she previously complained many times to the police and that they did not care. Finally, she admitted it is possible that she told Detective Sergeant Vigeant she did not complain because she was hoping to get her gold back from him, but she does not remember.

She admitted she was angry at him for taking her son’s chain. [ 71 ] The Court recognizes that a victim of sexual assault does not have to give irreproachable testimony to be believed. Nevertheless, a victim’s testimony must be credible and reliable like any other witness. That is not the case here. V. PROOF BEYOND A REASONABLE DOUBT [ 72 ] The Crown has the burden to prove beyond a reasonable doubt all the essential elements of the offence. [ 73 ] Even if the Court does not believe the accused, the Crown has failed to prove the guilt of Mr.

Spitzer because the complainant’s testimony is neither credible nor reliable. It’s not the entire testimony that is not credible or unreliable. But the contradictions, implausibilities, inconsistencies and misgivings are important here and concern the essential facts relating to the charge against the accused. She also had other grievances against the accused. Her testimony is not entirely disinterested. Finally, she admitted she does not have a good memory of what happened. [ 74 ] Therefore, her testimony cannot establish beyond a reasonable doubt the guilt of the accused.

F OR THESE REASONS THE COURT: [ 75 ] ACQUITS the accused Georgi Spitzer. __________________________________ CHRISTIAN M. TREMBLAY, J.C.Q. M e Bruno Menard Crown attorney M e Ana Maria Mocanu Defence attorney Dates of hearing: October 28, 29 and 30, 2019