2021 QCCQ 10574, 2021 QCCQ 10574

R. c. Dunn 2021 QCCQ 10574 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL CITY OF MONTREAL Criminal and Penal Division No.: 500-01-188997-198 DATE: October 21, 2021 ______________________________________________________________________ BEFORE: THE HONOURABLE JULIE RIENDEAU, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecution v.

BARBARA DUNN Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The defendant is charged with assault, assault with a weapon, and uttering threats to cause death or bodily harm [1] . [ 2 ] The complainant is the defendant’s husband at the time of the events. He sustains that the night targeted by the accusations, she, amongst other things, grabbed him by the collar, punched him, hit him with a ceramic vase, and threatened to kill him. [ 3 ] The defendant denies committing the alleged offences.

If ever the Court was to conclude that she did so, she pleads self- defence. I. QUESTION AT ISSUE [ 4 ] The matter at issue is whether the evidence, taken as a whole, demonstrates every element of the offences beyond a reasonable doubt. II. CONTEXT [ 5 ] The basic facts are not contested. [ 6 ] Upon the complainant’s return from an Alcoholics Anonymous meeting, the defendant got out of the house to furiously ask the driver of the vehicle in which the complainant arrived in, to leave the premises. Some of the complainant’s belongings were on the grass.

Both the complainant and the defendant mentioned they were in a deteriorating relationship. [ 7 ] It is then that a struggle for the cellphone happened in the house. That is to say all of the alleged offences occurred while the defendant tried to take possession of the cellphone she claims is hers because she was paying for it. III.

ANALYSIS [ 8 ] Faced with contradictory versions, the Court must analyze the evidence of the defendant while taking into consideration the whole of the evidence and the rules edicted in W.D [2] . [ 9 ] If the Court believes the evidence of the defendant, she must be acquitted. [ 10 ] If the Court does not believe the evidence of the defendant, but is left with a reasonable doubt, she also must be acquitted. [ 11 ] Finally, even if the Court is not left with a reasonable doubt by the evidence of the defendant, it has to be convinced beyond a reasonable doubt of the guilt of the defendant, after analyzing the totality of the evidence, before finding her guilty.

Otherwise, the defendant must be acquitted. [ 12 ] The burden of proof rests on the prosecution and never shifts to the defendant.

[ 13 ] A witness may be believed totally, partially, or not at all. [ 14 ] Is the evidence of the defendant credible? Does it raise a reasonable doubt? [ 15 ] According to the complainant, the defendant, who was drunk the night in question, kind of pulled him through the house when trying to get the cellphone until they ended up in the bathroom. In doing so, the defendant pulled his hair, pulled on his shirt to the point it ripped, grabbed his testicles, punched him and hit him with a toilet paper roll holder as well as with a ceramic vase, which broke.

The threats were uttered in the kitchen, around the same time that, according to the complainant, the defendant was trying to get to a knife on a counter. [ 16 ] As for the call to the police, the defendant mentions he finally managed to call while they were in the bathroom, and as soon as he did, the complainant put herself down on the floor. He then gently put the bottom half of his leg on her to make sure that she stopped acting as she was. He even asked the 911 operator if it was acceptable to do so. The operator agreed after making sure the defendant had no objects in her hands.

He finally left the defendant there after telling the 911 operator that she did not seem to want to move. He went to wait for the police. The defendant left the bathroom and went on the couch. [ 17 ] The defendant has a completely different version of the events. [ 18 ] At the onset of her testimony, she explains that for the past ten years the complainant was aggressive and violent towards her.

This part of her testimony was admitted into evidence only to demonstrate her state of mind at the time of the events. [ 19 ] That said, while she admits being upset when going out of the house to ask the driver to leave her property, she firmly rejects having any of the alleged conduct. After re-entering the house, she asked the complainant to give her the phone he was using, which in fact was hers because it was under her name and she was paying for it. She wanted the phone back because she wanted him to leave. He was holding it up so she could not reach it. He pushed her down and she fell on the ground.

They were then in the kitchen. Weighing almost 200 pounds at the time while being five foot tall, she pulled on him to get up. She explains that because of her weight and the fact she has bad knees, it was extremely difficult for her to get up. He pushed her down again. She then managed to get up using a stool. [ 20 ] Afterwards, the complainant went to the bathroom and she followed him because she wanted the phone. There, she tried to reach for the phone again. He pushed her down. Her head hit the ceramic garbage can, which broke. Then, while she was on the floor, he put his leg on her.

Having a hard time to breathe because of the pressure he was putting on her stomach, she hit his leg, asking him to let go of her. [ 21 ] So, what could one think about the defendant’s testimony? [ 22 ] First, it has to be noted that what she recounts could make sense when considered in light of the whole evidence. Her version concerning the struggle for the phone is not illogical, neither incoherent. [ 23 ] Also, she does not refrain to answer because it would put her at risk of giving a poor impression.

For example, she does not deny being upset when she got outside to ask the driver of the vehicle to immediately pull out of her driveway. The Court furthermore notes that she testifies with fluidity. It is also without hesitation that she acknowledges her previous conviction for driving while being intoxicated by alcohol. As for the ladder, even if it is true that a previous conviction may affect someone’s credibility and reliability, it has no impact here because this conviction occurred 20 years ago, and moreover does not have much to do with the accusations. [ 24 ] What about the complainant’s version?

What are we to make of it? [ 25 ] As the defendant highlighted, some elements affect his credibility as well as the reliability of his testimony. [ 26 ] Thus, it has to be underlined that even if the complainant testifies that the defendant dragged him towards a counter where a knife was, he never mentioned it to the police, nor is it in his statement. [ 27 ] Also, while firmly saying that half of his shirt was falling apart after the defendant clung to it, the police officer who dealt with him said nothing about it. [ 28 ] The same remark can be made about his affirmation that he was in bad shape after the events as the police officer only noted the presence of superficial scratches on the complainant, as seen on the pictures filed. [ 29 ] Is the complainant exaggerating when telling his story?

Faced with the above mentioned, it cannot be excluded. [ 30 ] Also, the Court notes that the complainant talks about the defendant as if she is very strong and was doing what she wanted with him during the events. For instance, he says she had “power like the Rocky Mountains”, or that at one point she went towards him “as a football player”.

It is questionable how a very overweight, five feet tall woman with bad knees, who has difficulty to bend, and moreover suffers from fibromyalgia, which limits her upward arm movements, can move around as the complainant recounts and attack him as he said, when he is much taller than her. [ 31 ] The Court also notes that in cross-examination, the complainant is sometimes elusive and must be brought back on topic. [ 32 ] As well the Court observes that the complainant often seems to give himself a good role, such as when he repeats that he did not push her away, block her, or restrain her at any time.

It is hard to believe so when someone is literally attacking you the way he describes the defendant attacked him. [ 33 ] As to any previous convictions, he first says having none before admitting that he was convicted three times, the last time being for breach of conditions a few years ago, and before that for theft. Here, the fact that he denies at first having such convictions diminishes his credibility and the overall reliability of his testimony. His conviction for breach has an impact on both as well since it

demonstrates that he disrespected the law around the time of the events, which occurred in May 2019. [ 34 ] That said, what about the policeman who testifies that the defendant had an alcohol breath, was highly intoxicated by alcohol, and had an inconsistent behavior, sometimes shouting to the complainant whose shirt collar had been stretched out? [ 35 ] The same police officer testifies that he transported the defendant to the police station, before admitting in cross-examination that she was brought to the hospital by ambulance because she said she had a hard time breathing.

Also, he first mentions in examination in chief that the defendant had problems standing while admitting in cross- examination that in fact it was not the case. [ 36 ] In the context where certain contradictions were highlighted in cross-examination, the accuracy of the first part of his testimony regarding the defendant remains uncertain. [ 37 ] In view of all of the above, it is impossible for the Court to completely discard the defendant’s version. [ 38 ] Saying that is not equivalent to disbelieving the complainant.

It is rather saying that the defendant’s defence leaves the Court with a reasonable doubt in light of the whole of the evidence. [ 39 ] Consequently, the evidence, taken as a whole, does not demonstrate every elements of the offence beyond a reasonable doubt. [ 40 ] In the circumstances, it is unnecessary to deal with the defendant's alternative argument of self-defence. FOR THESE REASONS, THE COURT: ACQUITS the defendant on all three counts. __________________________________ JULIE RIENDEAU, J.C.Q.

Me Éric Poudrier Attorney for the prosecution Me Raphaelle Desvignes Attorney for the defence Dates of hearing: September 20, 2020, and October 1, 2021