2012 QCCQ 14900, 2012 QCCQ 14900

R. c. M.C. 2012 QCCQ 14900 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ST-FRANCOIS CITY OF SHERBROOKE Criminal and Penal Division No.: 450-01-066939-104 DATE: 5 DECEMBER 2012 ______________________________________________________________________ BY THE HONOURABLE SERGE CHAMPOUX, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecution v. M. C.

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Publication: By Court Order, information that may identify the person described in this judgment as the complainant may not be published, broadcast, or transmitted in any way. 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 [ 1 ] M.

C. is charged with having touched a part of the body of X for a sexual purpose on 17 April 2010. The facts are alleged to have occurred in Town A. X was 7 years old. THE FACTS [ 2 ] At the time in question, the accused was living with his son T. and his daughter-in-law C.. The couple have two children, Y and Z. At the time, Z was 7 years old and Y was 10 or 11. M. C. was then 76 years old. [ 3 ] All of the Prosecution’s evidence is in the statement given by the accused to the investigators on 10 August 2010.

This comprises both the three-page statement itself and also the notes of the accused’s words taken by the police officers in the interview that preceded the formal taking of a statement. This is exhibit P-1. [ 4 ] In

summary, the accused states he was in the basement after supper on 17 April 2010, watching television. While he is hesitant in specifying whether his grandson, Y, came down to the basement, with or without a friend, he is clear that his granddaughter Z, accompanied by a female friend, did join him. [ 5 ] The two little girls apparently sat on his lap. They would have repeated this maneuver more than once, possibly two or three times. Regarding his granddaughter, he admits giving her hugs and kisses and also kissing her on the mouth.

According to him, that is normal between a grandfather and his granddaughter. [ 6 ] As for X, he apparently also gave her hugs and kisses, primarily on the cheek in the case of the kisses, but probably also on the mouth. Moreover, he would have touched her "private" parts, what he calls her "monkey", but only once. What he did was put his hands inside the little girl’s underwear to touch her vulva. [ 7 ] Subsequently, the two girls go upstairs and he goes to bed.

He also mentions playing tossing a ball with the girls on this occasion, but it isn’t clear whether that happened before, between or after the sexual touching. [ 8 ] At the trial, the accused testified. He denied performing any sexual act of any kind on the person of X. [ 9 ] He confirms that he was living with his son and daughter-in-law and their children. As was his habit, after supper on 17 April he went down to the basement where his quarters are located. He is a smoker and, as I understand it, that is the only place the family allows him to smoke. [ 10 ] He went down at about 6 or 6:30 p.m.

He was planning to watch TV. His grandson Y, his granddaughter Z and the plaintiff X were in the house. Today, he no longer remembers the name of this little girl. M. C. doesn’t think Y was with another child that evening. [ 11 ] The children were going up and down between the basement and the first floor. He was settled in a rocking chair watching

television. He was also drinking a coffee. [ 12 ] Each of the girls apparently sat down, spontaneously and not at his request, on one of his legs, certainly his left leg. Z did so first. She sat on his left leg, with her legs straddling it. She had her back to the accused. Both were watching TV. [ 13 ] He took the opportunity to give her hugs and kisses. Because she was in front of him, he “petted” her leg, but never sexually. [ 14 ] While Z was sitting on his leg, few or no words were exchanged between them. X was just beside them.

The two girls probably talked to each other, but not to him. [ 15 ] When Z got off his leg, X got on and took up the same position. Z then placed herself next to them, where X had been previously. He also gave hugs and kisses to X and also touched her leg the same way he had done with Z. [ 16 ] The kisses he gave X were only on the cheek, he thinks. Once again, aside from asking her her name, apparently no other exchanges occurred between them. [ 17 ] It would be when X got down that M. C. played tossing the ball with the girls for a few minutes.

After playing with the ball, the children went up to the first floor and he got in bed to go to sleep. Nothing else happened. [ 18 ] The accused is clear, consequently, that the children did not both sit on his knees at once, on the one hand, and on the other, that each only did so once that evening. [ 19 ] The accused was asked a number of questions regarding his statement, exhibit P-1. Obviously, the questions sought to explain why his current responses are different from what is in that statement. [ 20 ] M.

C. explains that he was at that time extremely nervous, so much so that he was shaking and could only think of leaving the police station. Specifically, with regard to one of his responses, at line 60 of exhibit P-1, he says it was the last question and the police officers told him if he didn’t answer the way they wanted, he would have to spend the night in a cell. He was apparently given a break to think about it.

When they came back, he told the police what they wanted to hear, and then was allowed to leave. [ 21 ] Regarding certain other details in this statement, which I will come back to, he explains that he was so nervous he didn’t know what he was saying. In fact, after the police officers escorted him back to his car, he wasn’t immediately able to drive it. He sat in it for about 20 minutes, too shaky to be able to drive. DISCUSSION AND DECISION [ 22 ] First of all, it is important to recall that the trial occurred in two stages.

The first was a voir dire under both constitutional and common law, to determine the admissibility of exhibit P-1, the accused’s statement. [ 23 ] While the constitutional aspect is now of little interest, the common law aspect is more relevant. [ 24 ] Indeed, at the end of this voir dire, which is of course now closed, but during which the accused gave copious testimony on his state of mind, his nervousness and discomfort about being at the police station and being interrogated by police officers, I rendered a decision in which I stated that the accused had not been subjected to any threats or promises and that his statement met the legal criteria for being deemed to be free and voluntary. [ 25 ] Without unduly revisiting the evidence on which that decision was based, it is nonetheless worth recalling that M.

C. stated the police officers had been very respectful and considerate towards him, and that, in fact, he had practically no complaint to make against them. [ 26 ] If I were to retain M.

C.’s current comments in the trial about the way the response on line 60 of his statement was obtained, I would be forced to consider the statement as having been given, at least partially, under promise or threat. [ 27 ] Indeed, whether one understands that the accused was threatened with spending the night in a cell or promised release if he gave the response on line 60, the result is the same: the statement should not have been admitted into evidence. [ 28 ] I stress that the decision on the admissibility of the statement has been made, and I have neither the power nor the intention to revise it.

Consequences will thus necessarily follow from it. [ 29 ] Another aspect of the evidence that the accused’s counsel suggests should be examined concerns the accused’s personality and characteristics. [ 30 ] He is an elderly man and clearly nervous. I am not aware of his having any other health problems. [ 31 ] His lawyer asks the Court to be prudent and examine all of his statements, both those given in writing and those made in court, in the light of certain difficulties the accused is supposed to be having.

He says the accused has little education, may have an unreliable memory and generally seems to have trouble telling a perfectly coherent story. [ 32 ] I can only agree that one must be attentive to follow all the intricacies of M. C.’s story. He tends not to describe events in chronological order, seems to have trouble understanding even simple questions and is likely to be easily confused.

I am taking this into consideration. [ 33 ] That being established, it is important to bear in mind that of course the accused is presumed to be innocent and cannot be declared guilty unless the evidence against him is established beyond all reasonable doubt.

[34] Where an accused testifies, the Supreme Court of Canada instructs us, judges, on the appropriate method for analyzing theevidence. It does so in the ruling R. v. W. (D.) (SCC), 1991 1 S.C.R. 742, which describes the three steps that must befollowed. They are: 1. If the accused’s testimony is believed and it is exculpatory, the accused should be acquitted. 2. Even if this testimony is not accepted, if it raises a reasonable doubt, the accused should be given the benefit thereof and beacquitted. 3.

Only if the first two steps have not allowed the case to be disposed of should all of the evidence be examined to determinewhether it is established beyond all reasonable doubt. Only in that case can the accused be declared guilty. [35] Of course, here, the accused has testified. [36] When I refer to his testimony, I am referring to the version he gave the Court. Indeed—but I will come back to this—the versionhe gave the police officers, recorded in exhibit P-1, is incriminating towards him and, of course, accepting this version is in no wayfavourable to M. C.. [37] A few words about the accused’s memory.

It should first be noted that if, as he claims, nothing out of the ordinary orreprehensible in any way happened on the evening of 17 April 2010, it would be understandable if it were hard for him to have a clearrecollection of it two and a half years later. [38] On the other hand, his arrest and being taken to the police station are probably stressful or highly unusual moments, at leastfrom the standpoint of his being innocent and wrongfully accused. [39] However, on some points with regard to the latter event, I can be persuaded either that his memory is defective or that he islying.

The first example of this is his statement that police officer Gamache was the one who wrote everything down, while policeofficer Lefrançois never wrote at any time. [40] One knows this statement is false simply by a quick look at exhibit P-1, which is divided into two sections: the statement itselfand the ten-page "voir dire" section. It is clear that two different people wrote these documents.

However, the accused firmly maintainsthe opposite. [41] Another example concerns the break or breaks he apparently had during the interview he underwent with the two investigators.He situates one of these breaks just before the question he answered at line 60. However, this is in outright contradiction to the statementand voir dire P-1. [42] The documents filed indicate that the police officers gave M. C. two breaks, as well as allowing him to go to the washroom atnoon, specifically at 12:56 and 2:15 p.m.

Because on the one hand, the response in line 60 is not so radically different or crucial in thestatement compared to what the accused had already stated previously, it seems illogical to me that the crucial break should haveoccurred there. [43] Also, it would be quite hard to understand why, right in the middle of taking a statement whose content, one can imagine, mightconfirm the police officers’ suspicions, why then would they have taken a break at that point? [44] Finally, in his testimony he himself concedes the limitations of his memory on a number of points.

For instance, he does notremember what he may have eaten on the evening in question or what he might have watched on television, no more than he remembersthe first name of Z’s young female friend. [45] Proceeding to draw certain conclusions from these observations regarding M.

C.’s memory, I can’t help asking myself whataccounts for the fact that he has such a precise recollection in September and October 2012 of an evening in April 2010 when nothing issupposed to have happened. [46] On the same topic, how can he explain that his memory for events now seems to be more precise than what he told the policeofficers on 10 August 2010, at which time he responded on a number of occasions with “I don’t know” or “I guess so.” [47] Still with the aim of deciding whether I can believe the accused’s testimony, it seems to me useful to look at his degree ofnervousness. [48] The courtroom experience is not easy, granted.

It is not rare to see that a witness or an accused is nervous, and many even statethis openly. It is easy to imagine that the challenges, the risks entailed or the solemn quality of the hearing can be intimidating. [49] The accused seemed particularly nervous and distressed at the time of his testimony. He was shaking and abundantlydemonstrated his nervousness. He even talked about it. [50] What makes this more relevant is that M.

C. states that if he said what he did to the police officers in his statements, it wasbecause of his nervousness and the repetitive nature of the questions which prompted him to say things that were false. I am forced tobelieve that it is in the nature of this state to produce the same effect on him. How different is the Court experience from the statementgiven to the officers? How reliable can it be? [51] Previously, I addressed the issue of whether statement P-1 was given freely and voluntarily. I indicated that there wereconsequences to the decision I rendered.

Here they are. [52] In this decision, I indicated—I believed clearly—that on the basis of the evidence, I did not believe any threats or promises hadbeen made to M. C. to induce him to give statement P-1. However, in his defense testimony, he maintains that the response at line 60, at

the very least, was clearly made under the threat of spending the night in prison. [53] I do not believe him. [54] On the one hand, the evidence which led to the decision on the voir dire is ample justification for it, but on the other hand,numerous other responses or comments made by the accused elsewhere in exhibit P-1 (see, for instance, line 27, line 52, line 55, line 57,line 79, notes from the voir dire at 11:00 a.m., 11:40 a.m., 12:04 p.m., 12:25 p.m., 13:25 p.m., 14:25 p.m.) include elements that areeither outright incriminating or at least highly suspect.

Yet, he does not plead that these responses were given under duress. According tothat logic, there would be incriminating responses that were given voluntarily and others under duress. That is absurd. [55] For all of these reasons, I do not believe the accused in his trial testimony. [56] Also, this testimony which I reject does not raise a reasonable doubt in my mind. [57] An interesting question can be raised concerning the respective weight that should be assigned to incriminating parts relative toexculpatory parts of the same statement.

In effect, the accused’s lawyer pleads that exhibit P-1 contains both simultaneously. [58] The Supreme Court of Canada deals particularly with this in the Rojas decision (2008 SCC 56 , 2008 SCC. 56).

In thatcase, the trial judge had given the jury a Duncan-type instruction, according to which an incriminating statement is probably true,because otherwise, why would a person make such a statement? [59] The Supreme Court recalls the origin of this concept: [30] In short, the inculpatory parts of the statements were admissible under the confessions exception to the hearsay rule, whereas theexculpatory parts of the statements were self-serving and inadmissible. The Crown agreed, however, that where the statement isadduced as an admission against interest, the whole of the statement must be adduced.

The Court of Appeal agreed with thisconcession, noting that “[a]ny other course would obviously be unfair” (p. 363). The question then became whether the exculpatoryparts of the mixed statements could constitute evidence of the truth of their contents, or whether they were admissible for the limitedpurpose of providing context to the admissions against interest.

The Crown advocated the latter rule. [31] The English Court of Appeal did not accede to the Crown’s argument, stating that it could prove a very difficult task to explainthe difference between those parts of a mixed statement which were truly a confession and those parts which were exculpatory.

Thecourt therefore ruled that the entirety of the statement was admissible for the truth of its contents but recommended that the jury becharged in the following manner (at p. 365): Where a “mixed” statement is under consideration by the jury in a case where the defendant has not given evidence, it seems to usthat the simplest, and, therefore, the method most likely to produce a just result, is for the jury to be told that the whole statement,both the incriminating parts and the excuses or explanations, must be considered by them in deciding where the truth lies.

It is, to saythe least, not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than evidence of thefacts they state. Equally, where appropriate, as it usually will be, the judge may, and should, point out that the incriminating partsare likely to be true (otherwise why say them?), whereas the excuses do not have the same weight. [Emphasis added.] This instruction was later endorsed by the House of Lords in R. v. Sharp, [1988] 1 W.L.R. 7, and more recently in R. v. Aziz, [1995] 2Cr. App.

R. 478. [60] After recalling that this type of instruction had met with varied success in Canada, the Court continues: [35] As we can see, the Duncan instruction is rooted in basic evidentiary rules concerning the admission of out-of-court statements. As the court put it: “What a person says out of court is, generally speaking, not admissible to prove the truth of what he says” (p.363). This general exclusionary rule applies in regard to both inculpatory and exculpatory statements.

Confessions, however, fallwithin a recognized exception to the hearsay rule, and the very rationale for the admissibility of admissions by an accused is thatadmissions against interest are likely to be true. As Cory J. stated in R. v. Hodgson, (SCC), [1998] 2 S.C.R. 449, atpara. 17: . . . the basis for the admission of a statement of the accused as an exception to the rule against hearsay is that what people freely saywhich is contrary to their interest is probably true. [36] Exculpatory out-of-court statements made by an accused are also subject to the general exclusionary rule against hearsay.

Where the accused testifies, such statements are generally inadmissible because they are viewed as self-serving and lacking inprobative value. Where the accused does not testify, there is an additional rationale for excluding such statements. McIntyre J.explained it in R. v. Simpson, (SCC), [1988] 1 S.C.R. 3, as follows (at p. 22): As a general rule, the statements of an accused person made outside court — subject to a finding of voluntariness where thestatement is made to one in authority — are receivable in evidence against him but not for him.

This rule is based on the soundproposition that an accused person should not be free to make an unsworn statement and compel its admission into evidence throughother witnesses and thus put his defence before the jury without being put on oath and being subjected, as well, to cross-examination. […] [38] In recognizing both the basis for admitting inculpatory statements and the exceptional admissibility of an accused’s untestedstatements, the Duncan instruction, as such, accurately reflects the state of the law.

In England, the instruction is also perceived asachieving the “right balance”, as the House of Lords explained in Aziz (at p. 485):

Moreover, I would reject the suggestion that the law as stated in Sharp is unduly balanced in favour of the defendants who do nottestify. On the contrary, as was emphasised in Duncan and Sharp, a judge is entitled to comment adversely on the quality of theexculpatory parts of a mixed statement which has not been tested by cross-examination. The right balance has been found. [Emphasis added.] Judges in Canada, as in England, are also entitled to comment on the evidence so long as they make it clear that factual issues arefor the jury to decide: R. v.

Gunning, 2005 SCC 27 [2005] 1 S.C.R. 627, 2005 SCC 27, at para. 27. The Crown thereforeurges this Court to adopt the Duncan instruction in Canada. [61] In conclusion, the Supreme Court nonetheless indicates that instructing the jury in this way is not to be recommended,especially if the result is to suggest that it constitutes a legal presumption, by which the jury is bound: [40] In the same way, I see little advantage in expounding for the jury the underlying rationale for the mixed statement exception.

Ifonly for the pragmatic reason that it is often very difficult to differentiate between admissions and excuses, I too conclude, as didRyan J.A. in David and in the court below, that it is dangerous for the judge to instruct the jury in a manner that suggests thatinculpatory and exculpatory statements ought to be weighed differently. Such “common sense” comments are better left to theadvocacy of counsel (David, at para. 42).

Therefore, I conclude that the Duncan instruction should not be adopted by Canadian trialcourts. [41] The question whether a Duncan-type instruction has resulted in an unfair trial in any given case, however, will depend entirelyon the particular words used and their context. For example, as the finding of the court in David exemplifies, where the instruction iscouched in terms of a legal presumption, the prejudicial effect may be difficult to overcome.

In this case, as I will explain, havingregard to the permissive wording of the impugned instruction, the charge as a whole and the nature of the statements at issue, it is myview that the instruction was more unfortunate than fatal. [62] What this leads me to conclude is that while it is inappropriate to assume that a legal presumption of veracity applies toincriminating statements, good sense, shared experience and logic do not prevent us assigning more weight to them than to anexculpatory statement. [63] A careful reading of exhibit P-1 in its entirety clearly reveals the behaviour of a guilty person. [64] Before the formal beginning of the statement, the accused begins by discussing various relatively neutral subjects, but when thespecific facts justifying his arrest and now his formal charge are raised, he becomes hesitant and reticent and claims not to remember ornot to know. [65] However, he clearly evokes a behaviour that is improper and inappropriate, at first grudgingly, one could say, and then morebluntly. [66] For instance, see the following question and answer at lines 54 and 55: Exhibit P-1: Q.

Did you touch her vagina? (referring to that of his granddaughter). R. No, and the other one, I don't know. [67] This kind of answer is far from what one might expect of a person who had not touched a young girl in this way. And hecontinues at lines 58, 59, 60 and 61: Exhibit P-1: Q. Did you touch the other little girl's vagina? R. Yes. I guess so, I don't know, christ… [68] The trial has produced evidence that the accused knows how to read. He can do it very well.

This statement is signed by himand initialed on every page. [69] I believe it contains elements, cited above, which reveal amply and beyond all reasonable doubt that the accused committed theacts with which he is charged. [70] For these reasons, the accused is found GUILTY. __________________________________ Serge Champoux, J.C.Q. Maître Émilie Baril-CôtéCounsel for the Prosecution Maître Patrick Fréchette

Counsel for the Accused Date of hearing: 11 September 2012