2022 QCCA 641, 2022 QCCA 641

Emataluk c. R. 2022 QCCA 641 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-003758-203 (635-01-018451-196) MINUTES OF THE HEARING WARNING : Order restricting publication: On February 11, 2022, the Court of Québec (the Honourable Marc E. Grimard), District of Abitibi, made an order under s. 486.4 Cr.C . directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way. DATE: May 5, 2022 PANEL: THE HONOURABLE FRANÇOIS DOYON, J.A. JOCELYN F. RANCOURT, J.A. MICHEL BEAUPRÉ, J.A.

APPELLANT COUNSEL ETUA EMATALUK Mtre CATHERINE SOUCY RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre ARIANNE DUVAL (Director of Criminal and Penal Prosecutions)

On appeal from a judgment rendered on April 27, 2020 by the Honourable Marc E.

Grimard of the Court of Québec, District of Abitibi DESCRIPTION: Sexual assault – Failure to comply with a condition of an undertaking (5 counts) (guilt) Clerk at the hearing: Alysson Roussel Courtroom: 4.33 - videoconference HEARING 10:40 Calling of the file and identification of the parties; 10:41 The Court addresses the parties; Submissions of Mtre Soucy; Discussion between the Court and Mtre Soucy; Mtre Soucy continues; 11:01 Discussion between the Court and the parties; Submissions of Mtre Duval; Discussion between the Court and Mtre Duval; Mtre Duval continues; 11:12 Reply by Mtre Soucy; Discussion between the Court and Mtre Soucy; Mtre Soucy continues; 11:16 Recess of the hearing; 11:19 Resumption of the hearing; Judgment; End of the hearing.

Alysson Roussel, Clerk at the hearing JUDGMENT

WARNING : Order restricting publication: On February 11, 2022, the Court of Québec (the Honourable Marc E. Grimard), District of Abitibi, made an order under s. 486.4 Cr.C . directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way. [ 1 ] The appellant was convicted of sexual assault by the Honourable Judge Marc E.

Grimard of the Court of Québec. [ 2 ] The theory put forth by the prosecution is that the appellant took advantage of the state of intoxication of the complainant, who was sleeping, in order to commit sexual acts on her. She stated that she realized it when she woke up. [ 3 ] The appellant argues that the trial judge erred in admitting propensity evidence, which he claims was prejudicial to him. This evidence consists of prior convictions for offences similar to the offence in question in this appeal. He submits that this evidence does not satisfy the requirements for similar fact evidence. [ 4 ] He is mistaken.

It was the appellant, on his own initiative, who brought up the circumstances of these convictions. Moreover, the judge took them into account only as prior convictions that can be produced in evidence under s. 12 of the Canada Evidence Act in order to weaken his credibility. [ 5 ] Furthermore, as to his statement that he had, in the past, pleaded guilty to three charges of sexual assault on the advice of his lawyer, although he was innocent, and that one of these charges had involved the same complainant as in the present matter, the judge was entitled to take it into account in order to assess his credibility.

In the circumstances, contrary to the appellant’s contention, there was no need to comply with the rule set out in R. v. Handy , 2002 SCC 56 . [ 6 ] Moreover, given his description of the events—including the words he claims the complaint used to insistently ask him to engage in sexual relations, notwithstanding that she had filed complaints against him three years earlier—the judge was justified in completely rejecting this description and finding that it did not raise a reasonable doubt.

The cultural issue, which was not raised at trial nor in the appellant's brief, has no relevancy in this specific case. [ 7 ] As for the prosecution’s evidence, one witness partially confirmed its theory, in particular by testifying that after the appellant had pulled down the complainant’s pants, he had asked the witness to leave, which had left the appellant alone with the still-sleeping complainant. [ 8 ] In short, the appellant has not shown any error that would justify the Court’s intervention. FOR THESE REASONS, THE COURT: [ 9 ] DISMISSES the appeal. FRANÇOIS DOYON, J.A. JOCELYN F. RANCOURT, J.A.

MICHEL BEAUPRÉ, J.A.