2022 QCCQ 1714, 2022 QCCQ 1714

R. c. R.T. 2022 QCCQ 1714 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF BEDFORD LOCALITY OF GRANBY "Criminal and Penal Division" No.: 460-01-037810-201 DATE: February 22, 2022 ______________________________________________________________________ PRESIDING: THE HONOURABLE SERGE CHAMPOUX, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v. R. T.

Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ By order of the Court under s. 486.4(1) of the Criminal Code , any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way. [ 1 ] R. T. is charged with having touched his daughter X for a sexual purpose, between April 15, 2020, and September 15, 2020, in Town A, thereby committing a

summary offence. [ 2 ] In defence, he asserts that nothing reprehensible happened and that the actions described are exaggerated and the result of hypervigilance on the part of the child. [ 3 ] A FEW FACTS [ 4 ] X was an 11-year-old child at the time the alleged facts took place. She is 13 years old today. She is the daughter of R. T. and K.

P.. [ 5 ] To better understand the environment in which X was living, it should be noted that, at the time – though some details will be added on this subject – X’s mother was living with the accused in a building that had been a duplex but that was then occupied by the two “spouses” and their four children. [ 6 ] The four children in question were 11-year-old X, 7-year-old Y, 3-year-old Z, and 2-year-old A. [ 7 ] K. P. is also the mother of three other older children, who did not live with her or the accused. One of those children is named B, who was 18 years old at the time. B is not R.

T.’s biological daughter, but she had lived with her mother and the accused several years prior to this time. [ 8 ] During that period, an incident with sexual connotations allegedly took place between B and the accused. That incident led to criminal charges being filed against R. T.. The outcome was a verdict of not criminally responsible on account of mental disorder, as defined by s. 16 of the Criminal Code . [1] The facts involving B apparently took place in 2012, and the judgment concerning her was rendered in 2018.

She therefore must have been around the age of 10 when those events occurred. [ 9 ] That verdict is relevant to this case, according to the theory of the defence. I will return to it below. [ 10 ] On September 16, 2020, X met with a police officer from the Sûreté du Québec to report actions that she alleged her father, R. T., had committed against her. [ 11 ] She explained that one or two days earlier – I will revisit this point – very early in the morning, her father came near her while she was lying on a mattress in the living room.

She says that she pretended to be sleeping. [ 12 ] He allegedly pulled down her underwear and touched her buttocks with one hand, got up, reactivated a surveillance camera that was above them, and then left. [ 13 ] There were apparently two such cameras in the house: one in this room, and the other in the mother’s bedroom

[ 14 ] The cameras were installed by X’s parents, although she apparently did not know why. K. P. worked long hours at the time, and she used the cameras to communicate with the family. It was explained at trial that the images from the cameras were visible on cell phones belonging to the accused and K. P.. They both had the necessary application on their cell phones to access the images from these cameras and to speak with the occupants of the house using their telephone devices. [ 15 ] It appears that the cameras were also installed because of K. P.’s fears about R.

T. after the events that had reportedly taken place with B. It appears that R. T. had committed actions of a sexual nature against her because of a sleep disorder. [ 16 ] K. P. was aware of this situation and tried to ensure that the accused did not sleep in the same bed as her children. She apparently also told the eldest children, including X, about the potential “danger” the accused might represent. [ 17 ] According to the evidence, X is a child that does not appear to suffer from any health problems.

The situation is quite the contrary for the three youngest children in the family. [ 18 ] Y has been diagnosed with autism and has epileptic fits, whereas Z and A also struggle with significant issues and have been diagnosed as falling on the autism spectrum. [ 19 ] While the evidence does not support a conclusion that Y has specific sleep disorders, the same cannot be said about Z and A. [ 20 ] I understand that Z slept in his mother’s bed until July 2020. After that, the mother was away from the family home fairly frequently due to a separation leading to her eventual cohabitation with a new spouse.

Starting then, Z slept on mattresses and numerous blankets piled in the living room. The mattresses in question were the types used for camping, and the “bed” he slept on was practically level with the floor of the room he slept in. [ 21 ] I understand that he slept near the accused, his father, who also slept in that room but on a couch. [ 22 ] A, for her part, also has significant trouble falling or remaining asleep at night. After her mother left, she often slept in her mother’s bed. X sometimes slept with her, at least until A fell asleep.

After that, X could return to her own room. [ 23 ] According to X, it was particularly warm on the night her father assaulted her. It was near the beginning of the school year. During the evening, her father had called her to ask her to switch places with him and sleep on the ground floor with Z, while he would sleep in the bed upstairs with A. [ 24 ] She claims that, very early in the morning, she realized that her father was up, for example, taking the dogs out, preparing breakfast, and making the children’s lunches. While she was still in bed but awake, she realized that her father was sitting very near her.

She found this strange. She preferred to act as though she were sleeping. [ 25 ] Because she was lying on her side with her weight on her arm, a position that was uncomfortable, she turned onto her stomach. She says that she was wearing a shirt as a top and boxer-type underwear. Her father, the accused, pulled down her boxers slightly, not completely, and with one of his hands and more specifically, some of his fingers, pressed on her upper buttocks. On the video recording, she indicates the spot where her father placed his hand.

She made a similar movement while testifying before the Court. [ 26 ] She affirmed that, after that, her father got up and reactivated the camera. She said that this is what happened because she heard the noise the camera makes when it is turned on.

She provided a description of the electronic sequence when the camera is activated. [ 27 ] X also referred to other incidents when her father placed his hands under the front of her top or nightgown and on her breasts while she was in bed. [ 28 ] She said that these actions took place while her mother was away between April 2020 and September 2020, when she was in bed, either fast asleep or very sleepy.

She is therefore not able to provide an exact date, specify how many incidents took place, or give any more detail about what happened. [ 29 ] She has a more specific memory of the last such incident, which she alleges also took place in early September 2020, a few weeks before the incident that led her go to the police station. She reported that, on that occasion, while she was very sleepy and lying in bed, her father placed his hand under her top and specifically touched her right breast under her clothes. She was not wearing a bra. [ 30 ] She mentioned this because that spot is particularly sensitive.

A few years earlier, a dog had bitten her on this breast and she still has a scar. It feels unpleasant and uncomfortable whenever the scar, which is directly and fully on the right breast, is touched. [ 31 ] This is the only specific event she has reported. She said that it happened on other occasions, but she is unable to give a number, duration, or date. [ 32 ] These are essentially the facts alleged constituting the offences charged against R. T.. [ 33 ] X’s mother, K. P., was called by the Crown and also testified.

She corroborated the reporting of the events that her daughter had told her about, but she described the confidences she shared differently. I will return to this point. [ 34 ] She also explained that R. T. never really lived at her home until the spring of 2020. The reasons were not fully explained in court, but I believe he may have been prohibited by order of the court from doing so before that time. Once again, this question was not the subject of any specific statements before me, and I will avoid speculating because in any event the issue is not central. [ 35 ] I do understand, however, that when R.

T. arrived at the home of K. P. and her children, he did not sleep in the same room as his spouse, even though the children saw his presence there as the reunion of their mother and father. She had her own bedroom, while he slept in the living room.

[ 36 ] From K. P.’s testimony, I find that they had an excellent agreement about the children and how they would be raised, but that, at least for K. P., their relationship was no longer romantic. She suggested that the accused did not necessarily see things the same way. [ 37 ] This was the situation in July 2020, when K. P. started being absent and sleeping at her new spouse’s home, a fact known by everyone in the family, including X and the accused.

From that time onwards, according to X’s answers and certain statements in the questions from counsel for the accused, X essentially filled an adult role, that of the mother of the house, even though K. P. was still often there. [ 38 ] Such is the relevant evidence submitted at trial.

I will return to a few other aspects further below, but it suffices for the moment to add that the accused did not testify and that the defence called no witnesses. [ 39 ] ANALYSIS [ 40 ] The sole issue to be decided, therefore, is whether the Crown has proved the facts supporting the charge brought beyond a reasonable doubt. [ 41 ] Since the prosecution’s evidence is based nearly exclusively on X’s testimony, it is essentially her testimony that I will examine. [ 42 ] The theory of the defence is that because the children and X in particular had knowledge of their father’s “at risk” behaviour, X was hypervigilant and misinterpreted the actions of the accused, who in all likelihood merely intended to wake her up. [ 43 ] Let us return to the main question.

Is X credible? [ 44 ] As a matter of fact, she is exceptionally credible. I will explain. [ 45 ] For example, Officer Laliberté can be seen conducting the interview, which took place on September 16, the way that I suppose all investigators are taught to question children. [ 46 ] Since I became a judge, I have been required to watch dozens and dozens of similar interviews.

To a person who has never seen any such interview, I suppose it might appear as though the investigator is given significant discretion. [ 47 ] After watching several dozens of them, however, it is possible to identify a specific method being applied.

I do not claim to provide a full or accurate description of it, but the order of events may be, for example: the police officer introduces himself or herself, explains why the cameras are there, asks the child a few basic questions such as his or her name, then asks whether the child knows why he or she is there. [ 48 ] The next subject concerns the importance of telling the truth and, for example, of not being too shy to tell the police officer if he or she has said something wrong.

Often, for instance, the child, who is sitting down, is asked the following question: “What would you tell me if I told you that you were standing up?” [ 49 ] The child is also instructed not to hesitate to tell the officer if he or she does not know the answer to a question. The example is always the same: “What would you answer me if I asked you what my dog’s name is?” Obviously, the child does not know the name of the police officer’s dog and should say so. [ 50 ] Then the time comes to verify the child’s memory.

The police officer asks the child to recount his or her previous day or a recent day. [ 51 ] Once again, after hearing a very large number of children talk about their day in many different ways, it is clear that the summaries given are often extremely brief, imprecise, and obviously incomplete or vague. [ 52 ] That was not the case with X. [ 53 ] I had never heard an account like hers.

Her description of the day completely covers morning till night, including her breakfast, the clothes she was wearing, an event that took place as she waited for the bus, her entire day at school, her classes, each of her recess periods, lunch, her return home, and so on and so forth, all the way to bedtime. [ 54 ] Her account was so impressive that it made me wonder whether other elements would arise in her testimony to make me believe that she was inventing things or filling in the gaps.

In the rest of her testimony, however, nothing like that happened or opened the door to any such belief. [ 55 ] She recounted the events she experienced with a very surprising richness of detail about her own situation and that of her family.

But the exceptional quality of her memories was revealed not only in her interview with the police officer; particularly useful and relevant details also emerged during cross-examination. [ 56 ] On that occasion, she was asked how she spent her time between September 14 – the morning when her father touched her buttocks – until the morning she was brought to the police station. [ 57 ] Counsel for the accused then asked X about a number of elements that she had not yet discussed. [ 58 ] I would have expected and found it perfectly normal if the girl had said at that point that she could not remember anything else.

The events had taken place more than a year earlier. [ 59 ] Nevertheless, she confirmed most of these elements, even adding details from time to time.

[ 60 ] I am thinking in particular of her mother’s presence at a given time, a meal her father apparently made, a walk she took with him when she ran to catch up with him, a medical book they had borrowed and brought back to the house, and comments she made about a conversation between herself and her father on Facebook. [ 61 ] I point out these facts because the suggestions had been presented to her first in part and then reinforced through certain exhibits. [2] On each occasion, X was able to elaborate on one of the elements or events.

I am thinking in particular about when her father cut his finger on September 15. [ 62 ] When shown photographs of the interior of the home she had been living in at the time, X was also able to comment about them fully and, where appropriate, indicate how some furniture or objects had been moved or how new furniture or accessories had arrived, and to do so clearly and precisely. At one point, counsel for the accused complimented her on her memory, and in the circumstances, this comment was entirely appropriate. [ 63 ] In addition to her memory, another very impressive aspect of this child became apparent.

During her interrogation by Officer Laliberté, it was perhaps fairly obvious that X was only 11 years old. At trial, however, the assurance she demonstrated, the quality of her speech, and the force with which she expressed herself made it hard to believe she is a 12-year-old girl. [ 64 ] She was cross-examined at length and skillfully, but not excessively, almost as though she were an adult. If I had felt that X was having any trouble, I would have intervened immediately.

I did so on only a few rare occasions to ask that she not be interrupted while answering. [ 65 ] Anyone who listens to the recording of her testimony before the court will find it difficult to believe that she is a 12-year-old girl. [ 66 ] Yet that is the case. [ 67 ] She herself admits that she is not good with dates and time. Under examination, she was confused on this subject in some ways. I will return to this. When she was “asleep” – like during the incidents when the father touched her breasts – she was not trying to fill in the gaps in her description of the moments.

She recognizes the imprecision, but she has a clearer memory of the most recent event where her right breast was touched. [ 68 ] It is also clear from her testimony that she did not truly grasp that her parents were no longer a couple but were living together to raise their children. [ 69 ] What criticisms have been made of her testimony? [ 70 ] Here is a list of elements I have drawn up: 1. X made mistakes, changing her testimony about when the touching of her buttocks took place, from Monday morning to Tuesday morning. 2.

Her testimony is less credible because she did not report the incident to her mother on the Tuesday morning after the assault, and she acted normally with her father on September 14 and 15. 3. X distinguishes the incident in which her father touched her buttocks from the one where he touched her breast, whereas according to the mother, X alleged that both actions took place on the same morning. 4. X alleges that she heard her father turn the camera back on because of the sound she heard, whereas it was probably the sound of the television; this sound was heard in the courtroom, and it is similar. 5.

It is illogical for her father to have waited until the beginning of the school year to assault her. If he had planned to do so, it would have been more plausible for him to take advantage of the summer months, when she was in bed for longer. 6. In X’s description, the manner in which her father pulled down her underwear appears awkward and the circumstances seem difficult to imagine. [ 71 ] Regarding the exact date that X claims her father’s action took place, it becomes clear when watching the entire video of the statement that she did indeed change the day on which the incident allegedly took place.

She did so when, after establishing the precise chronology of each of the days, it became clear that the action had to have taken place on the Monday morning, not on the Tuesday morning. She also made a mistake at one point, referring during the police interview to Wednesday morning as the day before, when the interview itself took place on a Wednesday. [ 72 ] In my opinion, this is all quite innocent. X herself acknowledges that she is not good with dates and days. However, when asked to describe a specific day that something happened, she provides an extremely detailed and complete account.

I therefore find no reason to reject her account on this ground. [ 73 ] The argument that her account is less credible because she did not immediately report the assault to her mother can in no way constitute a reason to reject this version. First, the Criminal Code prohibits this type of reasoning. [3] Second, basic experience in such matters indicates that victims can wait dozens of years before revealing a crime against them without the veracity of their account being undermined as a result. [ 74 ] As for the difference between what K.

P. alleges was reported and what X herself reports, I greatly prefer X’s account. [ 75 ] K. P. claims that her daughter told her that R. T. touched her buttocks and her breasts during the same incident, on the same day, whereas X says that there were two distinct events.

[ 76 ] I have no hesitation in concluding that, X’s version is the clearest, most specific, and most reliable of the two. I note that, while I do not criticize K. P. in this respect in any way whatsoever, her memory of the incidents is very partial. All of the answers she provides clearly indicate that she does not remember a large number of incidents or facts relating to the days in question. [ 77 ] I am thinking for example of the time of day she arrived at or left R. T.’s home, what she had done the day or evening before, whether X went to class on a given day, whether a medical book was returned, and so on.

On the same questions, X’s memory is incomparably better. [ 78 ] As for the sound of the camera being turned on compared to that of the television, I note that, according to X, the television makes no noise when it is turned on. The demonstration in the courtroom showed that the television makes a faint noise, but that the camera makes a louder and entirely different sound. [ 79 ] I therefore find it difficult to see how the two could be confused.

In any event, while X may not have ever noticed that the television made a faint sound when being turned on, she certainly would have noticed if it began to show images . She did not say that she did. [ 80 ] Regarding the opportunity the accused had to assault X during the summer holidays instead of during the school year when he had to wake her up to go to school, I do not understand this argument. [ 81 ] First, the evidence shows that at the time of the assaults, the accused must have thought she was sleeping and wanted to take advantage of it, precisely because it was difficult to wake her up.

Therefore, she would not have been awake in either summer or fall. He very likely believed that she was sleeping and was not aware of the actions he was committing. [ 82 ] Second, I understand that he works all year long at his job and that he probably always leaves around the same time. If that is the case, he would have left around 8:00 a.m., and the fact that X could get up later is irrelevant if his plan was to touch her while she was sleeping. [ 83 ] Finally, regarding the respective positions of X and R.

T. when he pulled down her underwear, I note that X said he folded down the underwear, from top to bottom, as she illustrated. She said that she was lying on her stomach, on a very low pile of camping mattresses and blankets, and he was beside her, on the ground. I do not see how performing this action would be unlikely or difficult. Indeed, she described it. [ 84 ] What therefore should be made of this? The defence argues that the allegations may be due to X’s hypervigilance, as she had been alerted to the accused’s potentially inappropriate behaviour. [ 85 ] I do not believe it.

The evidence is eloquent: X loved her father deeply, and I suppose she still does, and she got along with him excellently. It has been suggested that, in a way, she became the new woman of the house for her younger brothers and sisters, after her mother left. I believe that this was the case. [ 86 ] Indeed, this probably explains her extraordinary maturity. [ 87 ] X’s testimony also shows that she tried to minimize her father’s actions, for example, by saying that he rubbed her buttocks only briefly. She also said that he did not go “very far” down her buttocks.

She further stated that, in her mind, his touching her breasts, which apparently had begun some time before, was not as bad as his touching her buttocks. [ 88 ] During submissions, the sexual purpose of the actions was questioned. [ 89 ] This aspect seems completely untenable to me. Placing his hands under this preadolescent girl’s top during the night, when he believed she was sleeping, to touch one of her breasts, in my view necessarily has a sexual purpose or objective.

Similarly, rubbing the child’s buttocks after lowering her underwear, even only partially, was inevitably perceived by X as an inappropriate action that was sexual in nature, and it cannot be explained any other way. [ 90 ] Furthermore, the fact that he had deactivated the camera at that moment, a fact that I accept, seems extremely compromising. [ 91 ] A final word should be added regarding innocent actions that might have been perceived badly. The allegation made during submissions suggests that the actions X interpreted negatively might have been intended to wake her up.

First, it is highly improbable that the camera would have been disconnected in order to wake her up. Second, if the accused intended to wake her up, it would have been natural for him to say something and use specific words, which he did not do. He said nothing at all. Finally, the evidence shows that if other efforts to wake her were in vain, R. T. was supposed to tickle X’s feet, as a last resort.

Nothing of that sort is alleged with regard to the actions covered by the charges. [ 92 ] FOR THESE REASONS , the offence is proved beyond a reasonable doubt, and the accused is FOUND GUILTY . __________________________________ Serge Champoux, J.C.Q. Mtre Karyne Goulet Crown prosecutor Mtre Thomas P. Walsh Counsel for the accused

Date of hearing: December 7 and 8, 2021