2024 QCCQ 31, 2024 QCCQ 31

R. c. Safner 2024 QCCQ 31 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF BEAUHARNOIS CRIMINAL AND PENAL DIVISION No: 760-01-103895-212 760-01-105107-228 DATE: January 8 th , 2024 ______________________________________________________________________ BY THE HONOURABLE CHRISTIAN JARRY, J.C.Q. ______________________________________________________________________ HIS MAJESTY THE KING Prosecution v. CLAUDE SAFNER Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ OVERVIEW [ 1 ] Two former partners.

Two different tales. [ 2 ] C. M. and Claude Safner formed a couple for 9 years. [ 3 ] They lived together; they loved each other. [ 4 ] Yet, that is about all they agree on. [ 5 ] Mrs. M. tells of an abusive relationship of which she narrowly escaped one summer night. [ 6 ] Her partner, she says, had a drinking problem and he would abuse her, especially when he was drunk. [ 7 ] Among other abuse, he hit her with a wiffleball bat, he smashed her cell phone and he punched her in the face, causing irreversible nerve damage. [ 8 ] Mr.

Safner, on the other hand, describes a harmonious relationship throughout the years, save for the last few days, after Mrs. M. had been caught stealing from a local store. [ 9 ] He confronted her about the theft. [ 10 ] She took it badly and left the couple’s home. Never to come back. And not without swearing that she would get even. [ 11 ] Against that backdrop, are the offences charged proven beyond a reasonable doubt? [ 12 ] For the following reasons, I conclude that some have, while others have not.

ISSUES IN DISPUTE [ 13 ] The accused is charged in file number 760-01-105107-228 with a single count of unlawful possession of three rifles. The rifles were found in the accused’s house when a search warrant was executed in relation to the spousal abuse offences. After all the evidence had been heard, it became clear that the accused was guilty of that offence, indeed his attorney conceded as much.

There will be a verdict of guilty on that count. [ 14 ] The issues in dispute are in relation to the other file, 760-01-103895-212, in which the accused is charged with four counts: assault with a weapon, assault causing bodily harm, mischief and a second count of assault causing bodily harm relating to a different incident.

[ 15 ] Faced with contradictory versions, what I must decide is whether the prosecution made its case beyond a reasonable doubt, proving every element of each offence to the required standard of evidence. ANALYSIS Narrative [ 16 ] C. M. was in a relation with the accused for 9 years, from May 2012 to July 2021. [ 17 ] It was an abusive relationship. The abuse started in 2013, verbally, and then escalated to physical abuse. [ 18 ] In January 2021, she’s asleep in the couple’s bed when she wakes up to a stinging pain in the back.

Since she was sleeping soundly, that means that the accused isn’t drunk because he is not physically abusive when he is sober. Thus, she’s confident that night that she can sleep tight. [ 19 ] Once the beating starts, she tries to get up, but the accused holds her head down, stuffing her face in the pillow. She feels being hit by something hard. She asks what he’s doing, but he doesn’t respond and continues to hit. Once he’s done, he puts away a plastic wiffleball bat where it usually is, behind a jar of change they have in the bedroom. They also have a second bat, similar but not identical, in the kitchen.

The police found the one in the kitchen [1] but it is not the same. The one in the kitchen is made entirely of foam, while the one she was struck with is made of plastic and only the grip is made of foam. [ 20 ] After putting the bat down, the accused tells her to stop being a cry-baby and says it was for her not performing her duties, which was practising oral sex. [ 21 ] For the remainder of the month of January, the accused keeps pushing her in the back while she’s performing her duties, reminding her of the painful bruises on her back.

No pictures are taken of the bruises and no one ever sees them. [ 22 ] Before being struck, Mrs. M. says she had been sleeping with her back to the accused, facing the computer screen on the table on her side of the bed. She could see the reflection of him beating her on the computer screen that worked as a black mirror. [ 23 ] In one of her police statements, Mrs. M. says that she had her back to the window, thus facing away from the computer screen.

She also mentions that the accused had gone out of the room to put the bat down and that it was the following day, not right away, that he explained having hit her because she was neglecting her duties. [ 24 ] A few months later, in May 2021, the complainant claims that the accused came in the bathroom, took her phone and threw it to the ground, saying that when he calls, she needs to pick up. The screen shattered. The communication functions on the phone stopped working, but she could still take pictures with the phone.

He later apologized and said he would pay for the phone. [ 25 ] The day went on, and later that day, as she is coming out of the spare room, the complainant is punched on the left side of her face. She could not see the punch coming, didn’t even see the accused. Were it not for the fact that they were alone in the house, she wouldn’t have known who punched her. [ 26 ] With the left side of her face all swollen, she sits down at the kitchen table. The accused says “Oh my God, what have I done”.

They argue as to whom should call 911, the complainant saying that if the accused is really sorry, he should be the one to call. In the end, neither one calls 911. [ 27 ] The accused then goes to lock himself in the bedroom. She picks the lock and finds him with a handgun in his hands, saying his father didn’t raise him to do things like that. The police search some weeks later indeed reveals a handgun in the bedroom. [ 28 ] The complainant took pictures of her face with the broken phone.

One on May 15 th , 2021, the day after the punch; two more pictures on May 18 th , 2021, and the last one some time later, after her face had healed but showing a droopy lip [2] . I could see from Mrs. M. testifying that the lip, two years afterwards, was still droopy. [ 29 ] The complainant’s medical report confirms a nerve injury to her face [3] . [ 30 ] Within two weeks of being punched in the face, Mrs. M. goes to a local garage operated by Mike Ouimet, who witnesses the bruises on her face, telling her to get out of there or he would kill her. Mr.

Ouimet tells her that if ever she needs to seek refuge, she can come to his garage. He also gives her the password to his WiFi. [ 31 ] Michael Ouimet did testify. [ 32 ] He has known both the complainant and the accused as customers. [ 33 ] One day, the complainant walks in and he is shocked at how her face looks. It is all bruised, purple and red, from her neck to her temple. He instantly knows where the bruising comes from and talks to her about it, saying that it is not acceptable.

He doesn’t have to ask to know, because he’s seen bruises on her arms before, and verbal abuse between the complainant and the accused, so he puts 2 and 2 together. He can tell the relationship is not normal. [ 34 ] Mr. Ouimet tells the complainant she can’t go back because they don’t know what can happen, but the complainant insists on going back anyway. He gives her 400 dollars, that she quickly pays back, and also gives her the password to his WiFi and tells the complainant that she can come to his garage anytime, in case she needs to.

[ 35 ] From May to July, 2021, nothing particular happens since the accused has stopped drinking. [ 36 ] On July 10 th , 2021, two friends of the accused’s, whom the complainant knows very well, are invited to come for a swim: Stephane and Paulette. [ 37 ] By the time they arrive, around 2 PM, the accused is already drunk. [ 38 ] After having spent the afternoon outside, they go in to have supper. While everyone is eating, the accused starts insulting the complainant in front of their friends.

Stephane intervenes and grabs the accused’s beer bottle, telling him he shouldn’t be saying things like that and that he should cut down on the drinks. The accused agrees and throws his bottle towards the sink, narrowly avoiding Paulette. [ 39 ] As they were leaving, Stephane and Paulette insist that the complainant come with them, but she declines. Going back inside the house, the complainant finds the accused in the bedroom and he orders her to go down to the basement.

She does as she’s ordered, but then the accused orders her back upstairs and tells her to get out and take her stupid dog with her. [ 40 ] The complainant therefore grabs what little clothes she has nearby and runs to her truck, driving through the electric-wire fence surrounding the yard. While she’s leaving, she can see the accused in the door frame, holding a rifle in his hands. He shots the rifle, leaving her taillight punctured by a pellet.

In a number of statements that the complainant makes, either to the Sûreté du Québec or to several officers of the Laval Police Force, she never makes a mention of the accused shooting at her vehicle as she is driving away [4] . [ 41 ] Having left, the complainant stops at Mr. Ouimet’s garage, where she phones Mrs. Lang, asking if she can come over and spend the rest of the night. [ 42 ] Paulette Lang also testified. [ 43 ] She and her husband, Stephane, are friends with the accused and the complainant. [ 44 ] To her, the relationship between Mr. Safner and Mrs.

M. was mostly good, but it got heated toward the end. He would treat her names, such as “cunt” or “bitch”, telling her she didn’t know what she was doing. She was a witness to such behaviour about three times, the last one being in July, 2021. [ 45 ] That day, her husband and her attend their friends’ house to spend the day. They get there at the beginning of the afternoon and the accused has already started drinking. During the day, the complainant shows her pictures of her face badly bruised. She asks how it happened but Mrs.

M. says that she can’t tell. [ 46 ] At supper time, while everybody is sitting at the table, the accused starts yelling and insulting the complainant, making her cry. There is no apparent reason for such yelling. The accused doesn’t mention the complainant stealing from a store as a reason for his demeaning comments. When she asks the accused if he doesn’t see that he is making the complainant cry, he replies that she is always crying, and then starts yelling at her also. Stephane then steps in, telling Mr. Safner that he wouldn’t yell at his wife and that he should cut down on the drinks, taking his bottle away.

The accused replies that no one would take his bottle, grabs it back from Stephane and throws it towards the sink, almost hitting her, Mrs. Lang, in the head. [ 47 ] Later that night, after she and her husband are back home, she gets a call from the complainant, who’s asking if she can come to their house. It is the first time she gets such a call, and she can tell that the complainant is scared for her life. [ 48 ] After a couple of months away, the complainant goes back to the house twice to recover some belongings.

The accused and her have agreed that no pictures are to be taken since he has conditions to not be, or communicate, with her. Nonetheless, he takes pictures of her when she goes, on a Saturday and a Sunday. The complainant’s testimony is contradictory on whether she goes on back-to-back days or on a Saturday, and then on the Sunday of the following week. [ 49 ] The accused was the last witness heard. [ 50 ] He has been with the complainant for nine years.

They separated in 2021. [ 51 ] They met through a dating site in May, which I infer would have been in 2012, since the accused couldn’t recall what year it was. [ 52 ] Some months later, the complainant moves in with him. They have a happy relationship, devoid of any abuse. [ 53 ] All is good until July 1 st , 2021. That day, he goes to a local store owned by a friend of his, to purchase Canada flags. There, he is told by his friend/owner that the complainant stole things from the store. The friend is furious about the theft.

That gets him, the accused, mad as well, although he tries to explain that the theft is due to the medication the complainant is on since she had a stroke. [ 54 ] For the next days, the accused wants the complainant to go apologize to his friend about the theft but she doesn’t go. [ 55 ] One day in July, they have his friend Stephane and his wife Paulette over for the day and supper. [ 56 ] He isn’t drunk that day, only a little buzzed from some beers and the day spent in the sun. [ 57 ] While everybody is eating, an argument erupts about the complainant committing a theft at the local store.

He is so annoyed about the complainant stealing and not apologizing, that he bangs his fist on the table and throws his bottle at the sink. [ 58 ] He then leaves the table to go to his bedroom to take a nap. He sleeps for a few hours at least.

[ 59 ] He gets down from the bedroom once his nap is over, and tells the complainant to get out of the house and go think by the river about the theft she committed and the apology she owes. He tells her that “he wants her to take the truck and the dog and go think by the water”. [ 60 ] At that moment, he’s sober, he’s not mad, everything is fine except for the fact that the complainant hasn’t yet apologized for the theft.

Faced with multiple text messages from him to the complainant in which he insists that he had stopped, or would stop, drinking and that he’d be sober if the complainant came back [5] , the accused maintains that the argument that night in the kitchen was not attributable to his drinking but, rather, to her stealing. [ 61 ] Although the accused technically expelled the complainant from the house, he maintains that she would have been allowed back in. However, much to his surprise, she doesn’t come back that night.

As a matter of fact, he is bewildered to hear her say, as she leaves, that she would get even with him. [ 62 ] A few days later, the complainant calls him back, telling him that she had made a complaint to the police, and to hide the rifles. That’s why he put them under the sofa’s cushions in the living room. But the police showed up shortly thereafter and found them. [ 63 ] On three consecutive weekends in September and October, the complainant comes back to his house. She calls him but he doesn’t recognize her voice. After asking who’s calling, she tells him her name and then he recognizes her.

So he lets her come over, but he takes pictures of the second and third visits [6] .

His sister told him to take pictures as she thought the complainant was up to something. [ 64 ] At the time, he recognizes there were conditions forbidding him to communicate or be with the complainant, but he lets her come anyhow. [ 65 ] As to the charges involving the complainant that are brought against him, the accused denies them all. [ 66 ] He denies having hit the complainant with a wiffleball bat. [ 67 ] He denies having thrown and smashed her cell phone, saying she ran over it with the tractor lawn mower. [ 68 ] About the badly bruised face of the complainant, his account of how the injuries happened is entirely different. [ 69 ] He says that as he was changing the oil of the tractor lawn mower, the deck [7] was removed and installed vertically on the lawn, supported by wooden 2 X 4’s. [ 70 ] He sprayed penetrating oil on the nut attaching the blades to the deck and, as he was waiting for the oil to penetrate to facilitate the unscrewing of the nut, he went to the tractor to change its oil, some 10 feet from where the deck laid. [ 71 ] As he was changing the oil, he heard a “ouff” sound and realized that the complainant had tried to unscrew the nut, using a breaker bar [8] .

In so doing, the complainant injured herself by hitting her face with the end of the breaker bar’s handle. [ 72 ] He asked his neighbour if he saw what had happened, and then they went inside. As the complainant’s face was starting to swell, he became emotional and started to cry. He told Mrs. M. that they needed to go to the hospital, but she insisted not to go, so they didn’t. Position of the parties [ 73 ] Counsel for the accused, while conceding that the accused’s testimony was “all over the place”, still invites me to accept it or, at the very least, entertain a reasonable doubt about it.

Because, as the argument goes, other evidence shows that that’s his way of expressing himself. The text messages filed as PR-6 would show that. [ 74 ] Thus, his denial of all three incidents is plausible, especially since the allegation of theft is not new but is found in a couple of text messages that date back to July, 2021. [ 75 ] Counsel adds that, even if his account is totally rejected, there remains a reasonable doubt because the evidence of Mrs.

M. cannot be accepted without reservation, seeing the many contradictions contained in her testimony. [ 76 ] While conceding that some contradictions are minor and would not, by themselves, justify rejecting Mrs. M.’s evidence, other contradictions are major and, all put together, make for a testimony that is neither credible nor trustworthy, certainly not enough to sustain a conviction. [ 77 ] For instance, the complainant contradicted herself when describing how she was positioned and where she was looking during the wiffleball bat incident.

She contradicted herself again when she described where the accused went and where he put the bat after beating her up with it. Another contradiction was found in the fact that she said that he was sober when the incident happened, while saying elsewhere that the accused was drunk when he would beat her up.

Finally, the accused points out that the complainant contradicted herself when she testified that the reason for the attack, i.e . the failure to perform oral sex, was mentioned right away, while saying in her statement that it had been mentioned the next day. [ 78 ] Other inconsistencies are invoked by the accused, such as the fact that the complainant didn’t mention having borrowed 400$ from Mr. Ouimet or the fact that Mrs.

Lang and her described the bottle-throwing incident in different ways. [ 79 ] The accused raises also the fact that the complainant gave two different versions of which days she went back to his place: was it back-to-back days or the Saturday and Sunday of two different weeks?

[ 80 ] Finally, the accused points to what he perceives as the most damaging part of the complainant’s evidence: the shooting at her car when she drove away that July evening. While the complainant said that she mentioned the shooting in previous statements, thorough research made by the investigator, with the aid of police officers’ business cards provided by the complainant, did not turn up any statement to that effect that the complainant would have ever made. [ 81 ] The prosecution, on the other hand, submits that the accused’s version should be wholly rejected.

Was his evidence, it asks, simply all over the place or was he avoiding the tough questions? [ 82 ] It argues that the fact that the complainant would have warned the accused that she would get even when she left in July is wholly unbelievable. The proof being, that according to the accused, she would have warned him beforehand that the police would be coming and so, to hide the guns. That is not what “getting even” is made of. [ 83 ] Also, the whole stealing aspect of the case, as a reason for the accused’s behavior on July 10 th , 2021, is denied by Mrs.

Lang, a neutral witness who had been friends with the accused as well as with the complainant. [ 84 ] Other aspects of the accused’s version are incredible. Such as the fact that he didn’t recognize the complainant when she called in September. Or the fact that he wasn’t sure if conditions were in place when he allowed her to come back, being a person who was jailed in the past for not respecting release conditions and who would therefore have made sure whether there were conditions or not. [ 85 ] As to the complainant’s testimony, the prosecution admits to there being inconsistencies.

However, it argues that her evidence need not be perfect to sustain a conviction, and that, more importantly, it is corroborated by other evidence: Mr. Ouimet and Mrs. Lang’s testimonies, the pictures of her broken phone and of her bruised face. [ 86 ] About the bruised face, the prosecution wonders if it would be even possible for the complainant to inflict such serious nerve injuries to herself. [ 87 ] And about Mrs.

Lang, the prosecution submits that her evidence matches that of the complainant, especially about the reason there was an argument when she came to visit, that is, because of his drinking and not because of her stealing. Presumption of innocence and standard of proof [ 88 ] The accused is presumed to be innocent, until the prosecution has proven his guilt beyond a reasonable doubt. The prosecution bears the burden of proof throughout the trial, from beginning to end.

The burden never shifts and the accused does not have to present evidence or prove anything. [ 89 ] It would be insufficient for me to believe that the accused is probably or likely guilty. More is required: proof beyond a reasonable doubt. Where the accused is thought to be probably guilty, he must be acquitted. [ 90 ] On the other hand, guilt proven to an absolute certainty is not required of the prosecution, as such a burden would be impossible to meet.

Nevertheless, the reasonable doubt standard falls much closer to absolute certainty than to proof on a balance of probabilities [9] . [ 91 ] But what is a reasonable doubt? In Lifchus , Cory J. described reasonable doubt as one that cannot be based upon sympathy, pity or prejudice [10] . Rather, it must stem from reason and common sense and be logically connected to the evidence or lack thereof.

Finally, reasonable doubt is more than a frivolous or imaginary doubt [11] . [ 92 ] In the end, after having turned his mind to the true meaning of reasonable doubt, a conviction can be entered by the trier of fact when he/she is “certain” or “sure” that the accused is guilty [12] . [ 93 ] Credibility is a live issue in this case.

Conflicting testimonies were adduced, with the main parties offering diametrically opposed versions regarding the history of their relationship and the events referred to in the information. [ 94 ] Although credibility and reliability are often intertwined to a certain extent, they do remain fundamentally different. Credibility relates to the witness himself and to his truthfulness, veracity and integrity, while reliability relates to the accuracy and quality of his account [13] . [ 95 ] Where contradictory versions are tendered, engaging in a “credibility contest” must be avoided.

A criminal allegation cannot be resolved by simply choosing, between conflicting accounts, which one appears more believable. Doing so would erroneously shift the burden of proof to the accused and lower the standard of proof from reasonable doubt to balance of probabilities [14] . [ 96 ] Even where the accused’s evidence is completely rejected, that does not prove guilt beyond a reasonable doubt [15] . The fact that a defense witness is disbelieved, be it the accused, does not entail that the prosecution discharged its burden.

That is because reasonable doubt can come from the prosecution’s own evidence [16] . [ 97 ] Where contradictory versions are presented, the legal framework to be followed is that explained by Cory J. in R. v. W.(D.) :

(1) If I believe the accused’s exculpatory evidence, I must acquit;

(2) If the evidence of the accused is not believed, but it nevertheless leaves me with a reasonable doubt, I must also acquit;

(3) Even if the evidence of the defence does not raise a reasonable doubt, it still remains to be determined if, on the basis of the evidence that is accepted, I am convinced beyond a reasonable doubt that the accused is guilty. [17] [ 98 ] In the case at bar, there is no need to go over the elements of each offence charged. If the prosecution’s evidence is accepted beyond a reasonable doubt, the offences are clearly proven. The only issue here is whether, on the whole of the evidence, there exists a

reasonable doubt or not whether the events unfolded the way the complainant says they did. Resolving the conflicting evidence [ 99 ] According to the framework referred to above, the first thing to be decided is whether I believe the accused’s version. If not, then I must ask myself whether, even if not believed, the accused’s evidence leaves me with a reasonable doubt. [ 100 ] The answer to both questions is “no”.

Taking into account the whole of the evidence, I don’t believe the accused and his evidence leaves me with no reasonable doubt. [ 101 ] Even accepting the accused’s argument that the complainant’s evidence is fraught with frailties, the fact remains that two independent witnesses testified that the relationship between the two was nowhere near harmonious, especially towards the end, precisely when the crimes are alleged to have been committed. Mr. Ouimet and Mrs.

Lang were both candid and credible witnesses, and they seriously undermine the accused’s version. [ 102 ] The accused claimed that if there was indeed domestic abuse in the relationship, people in the community would have noticed, such as the neighbor whose house was apparently connected to his. It may or may not be true, but one thing is for sure: while no one other than the accused came to deny there being violence in that relationship, two witnesses other than the complainant came to say there was. And one of them, Mr. Ouimet, was indeed part of the community as the owner of a close-by garage.

Being in the community is exactly how he came to realize there was something wrong in the Safner household. [ 103 ] The accused’s account of how the evening of July 10 th , 2021, ended is surreal. Having friends over for supper and being close to sober, he would have, all of a sudden, became annoyed with the complainant for not apologizing to the local store. So much so that he would have slammed the table and thrown his bottle of beer. And then, he would have let his guests at the table and gone for a multiple- hour nap. [ 104 ] Not only is this a very strange behavior, but it is contrary to Mrs.

Lang’s version, which I accept, of how the evening unfolded. Moreover, save for the nap that he says he left to go take, the accused himself, while testifying at trial, confirmed that Mrs. Lang’s account of the evening was accurate. [ 105 ] Furthermore, a simple theft due to a medication issue does not warrant the kind of reaction the accused had, including throwing a bottle that almost struck Mrs. Lang in the head. The account of what transpired that evening is much more compatible with domestic abuse than with reacting to the shoplifting of a few things at the local store.

Things, I must add, that were never identified by the accused. [ 106 ] In addition, the many text messages the accused sent to the complainant the very next day are irreconcilable with any suggestion that his behavior the previous night was due to anything else than his being drunk and acting badly towards her. [ 107 ] After the guests had left, the accused says he summoned the complainant to go out by the river and think about an apology. And to take her dog with her . What’s the need to take the dog, if the complainant was to come back shortly thereafter?

That part of the accused’s evidence appears to be in accordance with the complainant’s to the effect that when she left that night with her dog, she wasn’t coming back. Besides, Mrs. Lang confirms that when the complainant got to her house that night, something that had never happened before, she was scared for her life. Simply neglecting, or even refusing, to apologize for a theft would not have led the complainant to fear for her life. [ 108 ] As to the injuries sustained by the complainant, I reject the accused’s account of how they happened.

For the complainant to have inflicted the injuries to herself, she would have had to be in a very unusual position to try and unscrew the nut on the lawn mower’s deck. The size of the breaker bar was not mentioned in evidence. Looking at exhibit PRD-2, I estimate the handle to be around 18 inches long.

Given that the complainant’s face would have had to be within that distance of the breaker bar for her to get it in the face, I have a hard time envisioning how the complainant would have been positioned when trying to undo the nut. [ 109 ] If the nut was so hard to unscrew, the complainant’s arms, no doubt, would have been fully extended during the maneuver. Or, as the accused himself testified to, she could have stepped on the breaker bar to have her weight do the work, the way the nuts of a car’s wheels car be loosened for example.

One way or the other, it would have been a very unusual way for the complainant to work for her to get the handle of a tool in her face, a tool that’s significantly shorter than an arm’s length. [ 110 ] Plus, I was puzzled by the accused’s alleged immediate reaction when the accident occurred. He instantly was concerned by the fact that the neighbor might have seen what had happened. Why was it so important? A very significant accident had just happened to his partner, one that could have cost her her eye, and all he cared about was whether the neighbor had seen it?

That strikes me as completely illogical and totally unbelievable. Unless the accused was concerned that the neighbor would think he had hit his girlfriend… [ 111 ] The fact that stealing was mentioned in a couple of text messages or that a picture of a breaker bar was taken doesn’t do much for the accused. They all date to some days after July 10 th , 2021, when it became clear that the complainant wasn’t coming back and that she had made a complaint to the police.

Therefore, those pieces of evidence are nothing more than self-serving and deserving of no weight. [ 112 ] One last thing about the accused’s trustworthiness and credibility. He has prior convictions, notably of receiving stolen property and theft by deception in Pennsylvania. He was also convicted of larceny in Virginia. And he was sentenced to jail in Ontario for failing to comply with conditions [18] . [ 113 ] Those are all convictions that have a bearing on the accused’s credibility. [ 114 ] Theft and larceny are offences of dishonesty.

As such, they weigh unfavorably on the accused’s credibility because they tend to indicate that, as a person who’s been dishonest in the past, he may be inclined to not tell the whole truth, as he swore he would [19] . Now,

because those offences were committed a long time ago, the weight I attach to them is reduced. [ 115 ] Breach of condition is a crime against the administration of justice. It requires a high level of blameworthiness in the form of wilful or reckless disobedience of a court order [20] . The accused, therefore, wilfully or recklessly disregarded court-imposed conditions in the past and was sentenced to jail for it.

Moreover, while he apparently was not prosecuted for it, he admitted to doing the same in the case at bar, when he agreed to the complainant coming back to his place not once, not twice, but three different times according to his testimony. Such a disregard for the administration of justice sheds an unfavorable light on the accused’s credibility and the value of his testimony [21] .

Because it happened before and, according to the accused’s own admission, it happened again in this very case not long ago, it takes a great deal away from any importance the accused may have accorded to the oath he took before giving his evidence. It affects his credibility. [ 116 ] Having rejected the accused’s version, it remains to be seen if the evidence I accept proves guilt beyond a reasonable doubt. [ 117 ] That evidence convinces me, beyond a reasonable doubt, that there was indeed domestic violence and abuse on the part of the accused.

But does it convince me that the specific offences charged were committed? [ 118 ] Not all of them. [ 119 ] The complainant appeared initially to be a very thoughtful witness, whose evidence was rather precise and given without animosity. [ 120 ] A lot of that changed during cross-examination. From thoughtful, she became argumentative. The contradictions raised by the defence, that some of which were mentioned earlier, really do exist.

When she was confronted with a contradiction, she seemed to have an explanation that was attributable to everyone but her. [ 121 ] I realize that the complainant went through a lot with the accused. She had to go to shelters multiple times. She sought refuge at Mrs. Lang’s house, fearing for her life. The stress she had to put up with may explain some of those inconsistencies. [ 122 ] But the fact remains that proof beyond a reasonable doubt must be presented before a guilty verdict can be entered. [ 123 ] The testimony of the complainant, in and of itself, is not sufficient to get to that level of conviction.

A guilty verdict would be unsafe resting solely on the complainant’s evidence. [ 124 ] In other words, there must be confirmative evidence not just about the abusive relationship in general, but about each offence charged. Not systematically, as a matter of law, in every domestic violence case. But, as a matter of fact, in this specific instance. [ 125 ] Now, there is no such evidence regarding the wiffleball bat incident. [ 126 ] The incident would have happened in the darkness of the bedroom, while the complainant was sleeping.

She would have seen the reflection of the accused striking her in the computer screen that she used as a black mirror. Yet, in a statement to the police, she indicated that she was facing away from the screen. As to the bat itself, it was apparently never recovered during a thorough search of the house. The one bat that was seized is apparently not the one used, being made of foam only. From looking at the picture filed, it seems to me that only its handle is covered in foam, while the rest of the bat seems to be made of plastic. That bat was seized in the kitchen.

Having been seized in the kitchen, it could have been convenient to say that there was another bat in the room, one that was never found. Also, while the complainant apparently suffered multiple bruises on her back, no picture was taken of them, contrary to the bruises the complainant suffered on her face. Those shortcomings are not peripheral.

They go to the very heart of the matter and lead to the existence of a reasonable doubt concerning the wiffleball bat incident, which is the subject-matter of counts 1 and 2. [ 127 ] About the smashing of the complainant’s cell phone, there is confirmative evidence in the form of pictures of the broken phone. However, there is nothing exceptional about them. Most everyone has seen the broken screen of a cell phone before. Just dropping a phone can result in identical damage. The accused’s claim that the complainant ran over the phone with the tractor lawn mower was not challenged in cross-examination.

It may very well be that the accused threw and smashed the phone. On a balance of probabilities, I would find that he did. But I cannot be convinced of that fact beyond a reasonable doubt. [ 128 ] The pictures of the bruised face are something different, though. [ 129 ] Those pictures are not ordinary, contrary to those of the cell phone. [ 130 ] I rejected the accused’s evidence about the reason of the injuries as wholly unbelievable. Conversely, I am convinced beyond a reasonable doubt that the accused had the complainant suffer through an abusive relationship.

And I am also convinced, to the same standard, that the accused is responsible for these serious injuries. [ 131 ] Would the complainant have secretly taken pictures of her injuries if they been the result of a breaker bar accident rather than a punch in the face from her violent partner? I am persuaded that she would not have. [ 132 ] Within some days of the complainant sustaining the injuries, Mr. Ouimet put 2 and 2 together and knew what had happened. The complainant did not try to convince him otherwise. Rather, she gladly took note of the WiFi password of his garage in case she ever needed to use it.

That does not come about because of a stupid accident happening within an otherwise harmonious relationship. [ 133 ] When the complainant showed the pictures of her face to Mrs. Lang, she said she wasn’t at liberty to say how the injuries were caused. That is telling. While it would have been harmless to reveal that she had hit herself with a breaker bar, the complainant rather chose to keep the reason of the injuries to herself. That is an unmistakable sign of the origin of the bruises: domestic violence. [ 134 ] The pictures, along with the testimony of Mr. Ouimet and Mrs.

Lang, corroborate the account of the complainant about the

punch in the face she took from the accused that resulted in those serious injuries. That confirmative evidence is enough to comfort me, despite the shortcomings in the complainant’s testimony, that the accused did punch the complainant in the face. [ 135 ] From such a powerful punch, it was reasonably foreseeable that bodily harm would probably ensue [22] . [ 136 ] Therefore, I am convinced, beyond a reasonable doubt, that the accused committed the offence of assault causing bodily harm, as charged in count 4. In the words of Cory J. in Lifchus, I am certain of that, I am sure about it.

FOR THESE REASONS, In file number 760-01-103895-212, the accused is found not guilty on counts 1, 2, and 3; In file number 760-01-103895-212, the accused is found guilty on count 4; In file number 760-01-105107-228, the accused is found guilty as charged. __________________________________ CHRISTIAN JARRY, J.C.Q. M e Janie Ferland-Frigon Counsel for the Prosecution M e Marie-Christine Latour Counsel for the accused Hearing dates: June 19 th and 20 th 2023, October 23 rd , 2023