2011 QCCQ 16073, 2011 QCCQ 16073

R. c. Godon 2011 QCCQ 16073 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF LONGUEUIL LOCALITY OF LONGUEUIL “Criminal and penal division” No.: 505-01-068461-074 DATE: December 2, 2011 ______________________________________________________________________ THE HONOURABLE PIERRE BÉLISLE, J.C.Q., PRESIDING ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v.

MARIO GODON Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ * An order prohibiting the publication of any information that could identify the complainant or a witness was made in accordance with

section 486.4 of the Criminal Code . 1 . Introduction [ 1 ] The accused stands trial on two counts of sexual exploitation while in a position of trust or authority towards a sixteen-year-old adolescent during a trip to Dakar, Senegal (paragraphs 153(1)(

a) and (

b) Cr. C. ). [ 2 ] The trial lasted seven days spread out over a period of two years and three months, from May 25, 2009, to August 25, 2011. [ 3 ] In addition to the voir dire, the prosecution called seven witnesses in support of its evidence. [ 4 ] Two witnesses, including the accused, testified for the defence. 2 . Factual context [ 5 ] In 2007, the accused was the spiritual life and community involvement counsellor at De Mortagne High School in Boucherville. He had held this position for some twenty years. [ 6 ] During the 2006-2007 school year, he was involved in a humanitarian project in Senegal.

It was his sixth such project abroad, and his fourth in Africa. [ 7 ] The selection of participants began in April 2006. Mr. Yves Thivierge joined him as co-leader. Eighteen students were chosen for the trip to Senegal. Several personal training sessions and numerous fundraising events were held. [ 8 ] The group was initially comprised of fifteen girls and three boys. In September 2006, the accused decided to accept X ( the complainant ) into the group at the request of his mother, who thought that this life experience would be beneficial to him.

It would also allow them to form two pairs of boys, [1] he added. [ 9 ] The trip took place from February 16 to March 9, 2007, and followed a fixed

schedule (Exhibit D-1), i.e. the first four days were spent in Dakar, followed by fourteen days in Tivaouane, split up by two days in Saint-Louis, and then back to Dakar for the last two

days before returning to Montreal. [ 10 ] It had been decided that the accused would share his room with the complainant upon their arrival in Dakar (D-4), but not at the end of the trip. On their return to Dakar, the complainant was supposed to share a room with Y (D-3).

In Tivaouane, the students stayed with host families (D-2) and did painting work in elementary and high schools. [ 11 ] On March 7, upon their return to Dakar, the accused and the complainant continued to share a room, contrary to the original plan. [ 12 ] The complainant alleges that in the late afternoon of March 8, the last day of the trip, he was sexually abused while in bed in the room that he shared with the accused. [ 13 ] The accused categorically denies having committed any act of a sexual nature in regard to the complainant. 3 .

Issue [ 14 ] The issue in this case consists essentially of the assessment of the credibility of the witnesses. 4 . The prosecution’s evidence 4.1 Testimony of X (the complainant) [ 15 ] In 2007, the complainant was in grade 11 at De Mortagne High School in Boucherville. His girlfriend, Z, was part of a group participating in a humanitarian trip to Africa. He eventually joined them. Having joined the group late, he was initially uncomfortable but eventually managed to integrate into the group. The beginning of the trip went well. He shared a room with the accused in Dakar.

He has no complaints in regard to the accused’s comments or conduct towards him during that time. Nothing to report in Tivaouane or Saint- Louis either. He admits getting out of his bed naked to go to the bathroom [2] and claims that the accused did the same. [3] [ 16 ] The situation changed upon his return to Dakar, on March 7. During the trip, it had been decided that A would take his place in the accused’s room. But nothing changed, and he asked why. The accused answered that [ translation ] “it was less complicated like that”. [4] He did not insist.

It should be noted that according to a document entitled [ translation ] “Two-person teams (beginning)” (D-3), the complainant was paired with Y in room 4, while the accused was supposed to share his room with B. [ 17 ] Everything was fine during the night of March 7. In the afternoon of March 8, he took a taxi to a small market in Dakar to go shopping, accompanied by B, Z and the accused. He bought a pair of pants for his girlfriend, who had stayed behind at the Collège Sacré-Cœur. [ 18 ] While B and Z toured the kiosks, the complainant and the accused sat at a table outside the Place de l’Indépendance.

He drank four beers. The accused also drank some beer and paid the bill. They stayed between an hour and a half and two hours. During this time, the accused confided in the complainant about his private life. He told him about his relationship problems with his ex-wife Linda. The discussion also turned to pedophilia. [5] The group eventually returned to the Collège Sacré-Cœur by taxi. [ 19 ] The complainant then headed to the second floor to see Z, but she was not there. He went back to his room. He knew that the accused wanted to have a nap.

The accused was already under the covers but was not sleeping. [6] The door from the living room was not locked. He does not know if the accused had asked him to [ translation] “lock” it. He does not remember having locked it, but by deduction, there is a strong possibility that he did. [7] [ 20 ] He then undressed and got under the covers. He removed his boxer shorts from his bed since the accused was present.

The accused, who was naked, approached him, stroked his hair and asked him if he was [ translation ] “open”. [8] The complainant answered [ translation ] “so-so”. [9] The accused told him that he was bisexual, kissed him on the mouth using his tongue, and then performed oral sex on him. The accused then asked the complainant to do the same, stating that it would be another experience. The complainant complied, giving two strokes to the accused’s penis, and then stopped.

The accused ejaculated in the sheets of the complainant’s bed. [10] The complainant then went to the bathroom, took a shower, [11] and washed his mouth out with soap. [12] The accused then went to the living room door, which was locked, to answer Z and B, who were knocking to get in. [13] [ 21 ] In his head, everything was a mess. He froze like a computer screen when the accused kissed him on the mouth. He felt dissociated. He lost control.

The accused did not force him, although he told him that he would rather sleep. [14] [ 22 ] The complainant denies having masturbated in the room at the foot of the accused’s bed that day. [15] He claims that he never told him about any homosexual experiences that he had in City A. [16] [ 23 ] Upon his return to the Montreal-Trudeau airport in the late afternoon of Friday, March 9, the complainant met his parents. The accused had already left the premises. [ 24 ] The following Tuesday, the complainant met with Ms. Mélanie Blain, a child care worker at De Mortagne High School.

During this meeting, he drafted a report recounting his version of the events (P-2). The police then conducted an inquiry, which resulted in the accused’s arrest. 4.2 Testimony of C. M., the complainant’s mother [ 25 ] Ms. C. M., the complainant’s mother, explained that her son attended De Mortagne High School from grade 9 to 11. He had no academic difficulties. He was seeing a social worker, however, in relation to an incident of bullying that occurred at the end of grade 8 in Varennes. [ 26 ] His girlfriend was part of the humanitarian project. She described her son as a “Greenpeace” type of person.

She thought that

this trip would be a good experience for him before going to CEGEP. He wanted to see real life, poverty. She contacted the accused. She met with him on three occasions to view slides of other trips and to address financing the trip. Her son joined the group late. He had to participate in fundraising activities in order to raise the money required. [ 27 ] The return flight from Senegal was an hour and a half late. Z’s parents were present. Ms. M found it strange that the accused passed everyone by without saying anything and left in a hurry.

She claims that nobody came to meet him at the airport. [ 28 ] Her son arrived. He wanted to leave without waiting for Z. When they got home, he went to his room. The next day, he did not want to go out to eat with his girlfriend. At supper, he spoke only briefly about the trip. [ 29 ] On Monday, her son returned to school. On Tuesday, she received a call telling her and her spouse that they should come to the school urgently. There they met with the principal, a psychologist, the social worker, and the police. 4.3 Testimony of Ms. Mélanie Blain, child care worker [ 30 ] Ms.

Blain, a child care worker, had been meeting with the complainant every two or three weeks since 2006 for teenager-related issues. They had scheduled a meeting for his return from the trip, on the Monday at 1:30 p.m. During their meeting, he seemed uncomfortable. He skirted the issues. He would not answer her. He refused to participate in the “debriefing” session. He told her that the accused said things to him about pedophilia. She found his comments tangential and lacking chronological order.

They therefore planned to see each other again the next day. [ 31 ] The next day, following a discussion with her director, Mr. Langis, she asked him to write down what had happened during the trip. The complainant gave her a written text (D-2), stating that it would be more than she expected. [17] [ 32 ] Further to his disclosure, Ms. Blain spoke to Mr. Langis. They then contacted his parents and the police. 4.4 Testimony of Mr. Michel Langis, school principal [ 33 ] Mr. Langis held the position of school principal at De Mortagne High School for six and a half years.

During this time, the accused was the school’s spiritual life and community counsellor. [ 34 ] He noted that after returning from Senegal, the accused did not present himself for work at the school on March 12, 2007. Mr. Yves Thivierge told him that the accused was not feeling well. The next day (March 13), Ms. Blain informed him that a student was uncomfortable because of inappropriate comments that the accused had made. He advised her to ask the student to put that in writing. The next day (March 14), he read the document (P-2). He immediately requested the services of a CLSC counsellor.

He then contacted the complainant’s parents and the police. At around 9:30 p.m., he called the accused at his home and advised him not to return to the school because a police inquiry was being conducted in regard to incidents that occurred during the trip. He told him to contact his managing secretary, Ms. Johanne Paradis, to obtain assistance from his union. The accused answered that he was feeling terrible and that he had the impression that he was going through a severe depression. [18] 4.5 Testimony of Ms. Johanne Paradis, managing secretary [ 35 ] In 2007, Ms.

Paradis held the position of managing secretary of the De Mortagne High School principal. She knew the accused as a colleague. She had prepared his sworn statements and contacted the insurance broker for the trip to Africa. [ 36 ] The morning of Monday, March 12, 2007, coincided with the end of spring break and the students’ return from Senegal. At around 9:00 a.m. the next morning, i.e. Tuesday, March 13, she received a call from the accused.

He informed her that he would not be at school that day, that he did not feel well, and that he had an appointment with his doctor. [19] During the conversation, he began to cry and stated that he was not well at all. [20] She found him nervous on the phone. [21] [ translation] “ Ah! I think I overdid it”, he told her. [22] [ 37 ] Sensing his distress, she offered to send him an ambulance. He refused. He was not alone; a friend was with him. [23] He did not want to speak to his boss, Mr. Langis, as he did not feel capable.

He mentioned that he would call him that night on his cell or at home. [24] [ 38 ] Sometime later that day, the accused called Ms. Paradis again to tell her that his doctor had put him on sick leave until April 1. [25] [ 39 ] On Wednesday, March 14, Ms.

Paradis’s boss informed her of a complaint brought by a student against the accused and told her that he would be contacting her in order to be put in contact with a union representative or a health, workplace safety, and mental health representative. [26] [ 40 ] She indeed received another call from the accused that day. [27] During this third conversation he added, [ translation ] “I think I’m in big trouble”. [28] [ 41 ] Ms. Paradis did not discuss the reasons behind his statement with him. She did, however, provide him with the information he required to pursue his next steps.

She has not seen him again since. [29] 4.6 Testimony of Z, the complainant’s girlfriend [ 42 ] At the time of the trip to Africa, Z was the complainant’s girlfriend. They are no longer together. [ 43 ] The room teams had been planned before their departure. Once they arrived, however, it did not really work out. [ translation] “ Pair up with whoever you want; we don’t care”, the accused told her. [30] She was surprised that X was separated from the rest of the group, alone on the first floor. [31]

[ 44 ] They returned to Dakar the night of Wednesday, March 7. The accused prepared a list of twelve students who would be permitted to go to the market the next day by taxi to finish their shopping. She wanted to join the group as she needed to purchase other souvenirs. The accused told her that the list was full and that she could not go. [32] She therefore asked her boyfriend to buy her a pair of pants. [33] [ 45 ] During the day, she went out with Mr. Thivierge and the other students who had stayed behind.

On her return in the afternoon, she found the pants on the desk in her room. [34] Seeing this, she went back down to the first floor. She knocked on the door of the living room that led to the room that her boyfriend shared with the accused. There was no answer. She and B knocked on the windows, everywhere. The door was locked. They could not enter. They knocked on the windows. They could hear a fan. They could not see anything inside the room. [35] [ translation ] “Then I yelled. I was like ... I wanted to talk to X, so ... I yelled his name.

I said, hey we’re here, come open, uh ... it’s locked, uh ...”, she explained. [36] [ 46 ] The door was locked. It was usually unlocked because others would go into the living room. [ translation] “When the group was there, it was never locked”, she explained. [37] [ 47 ] She wanted to get the key from Mr. Thivierge, but he did not have it. He told her that the accused had the key. [38] [ 48 ] Finally, the accused answered the door. He was wearing a boubou robe. [39] He smelled of alcohol. [40] She omitted this detail, however, in the statement she gave to the police on March 20, 2007.

She sat down in the living room. Her boyfriend came out of his room to show her the masks that he had bought at the market. [ translation ] “He didn’t say anything at all to the accused”, she added. [41] [ 49 ] She stayed with X in the living room. Then she went back upstairs, and he joined her. They packed their bags. The accused held a debriefing session during which he went over the trip with the students. Afterwards, they had supper outside the school and then took the night flight to Casablanca. [ 50 ] During one of the two flights, the accused sat to her left, and X sat to her right.

He did not speak to the accused. [42] [ 51 ] Upon their arrival at Dorval airport (Montréal-Trudeau), the accused went through customs swiftly. He took his luggage and his statuette. He left very quickly.

She wanted to take a group photo, but since the accused had left so fast, it did not happen. [43] [ 52 ] She noticed that when the accused wanted to go to sleep, her boyfriend had to as well because either he or the accused had to lock the door. [44] [ 53 ] She also noticed that the accused drank beer on several occasions, including in Dakar, Tivaouane, and Thiès. [45] [ 54 ] She also remembers that the accused and her boyfriend went to Thiès alone. They left at around 8:30 p.m. She wanted to go with them, especially since there was room in the taxi.

The accused told her that she could not accompany them since he needed a boy to carry things. She was surprised to see that they came back with only cookies. [46] 4.7 Testimony of Mr. Yves Thivierge, co-leader [ 55 ] Mr. Yves Thivierge has been teaching high school at De Mortagne High School for twenty-five years. In 2007, he taught grade 11 economics. X was one of his students. During the school year, the accused asked him to accompany him to Senegal with a group of students. He had gone on similar trips to New York, Washington, and Toronto, but never overseas.

After discussing it with his wife and children, he accepted. [ 56 ] The [ translation ] “pairing” had already been done. He was not given the opportunity to provide his views on the subject. At first, he was supposed to share a room with the accused. Since X joined the group late, and since he was dating Z, the accused suggested that X stay with him on the bottom floor. The accused did not want there to be any sexual contact between X and Z.

The accused was rather insistent. [47] As he did not see any reason to object, he acquiesced and found himself on the second floor with the Senegalese guide, Karim. [ 57 ] The group was split in two. Z was in his group, while X was with the accused. [ 58 ] The last day of the trip was supposed to proceed in accordance with an initial plan. The accused went shopping in the morning with the students who had not yet finished their purchases. X had finished his shopping, but his girlfriend had not. Mr. Thivierge cannot explain why, but Z did not go.

She had to give her money to X so that he could finish her shopping [48] for her. [ 59 ] The accused left in the morning with a few students, including X. He was supposed to be back by 2:00 p.m. because twenty-one meals had been ordered for lunch. At around 1:00 p.m., part of the group came back. The accused stayed in Dakar with Z, B, X, and Karim, the Senegalese guide. [49] [ 60 ] He went down to the first floor when he was told that the accused had returned from Dakar. He ran into a student who told him that the accused was having a nap with X. He noticed that the living room door was clearly closed.

He did not check it. He turned around and went back upstairs. [50] [ 61 ] At around 6:30 p.m., he went back downstairs and saw the accused, dressed in his boubou, sitting on a chair outside, smoking a cigarette, and drinking a beer. He decided to have a beer with him. [51] [ 62 ] They then had a discussion as Mr. Thivierge insisted on holding a meeting to discuss what had happened the day before because the students did not want to go to bed. They were in the mood for a party. He found that they lacked maturity.

He insisted, and they held a debriefing session before supper. [52] [ 63 ] They left for the airport at around 10:00 p.m. They took the night flight to Casablanca. They arrived at 4:00 a.m. The flight to

Montreal was scheduled for noon. He did not see the accused on the plane. That morning at the Casablanca airport, however, he noticed that before their departure for Montreal, the accused was [ translation ] “sweating alcohol” and [ translation ] “smelled like rubbing alcohol”. [53] [ 64 ] During the second flight, to Montreal, he sat next to the accused. He gave him the money that was left over, the receipts that he had collected, and the log book filled out by the students, which he never saw again. [54] [ 65 ] Upon their arrival, the accused did not wait for anyone.

He alone had to ensure that everyone had transportation and could leave safely, since the accused had left. [55] [ 66 ] He accompanied the last of the students, such that he never saw the accused at the Montréal-Trudeau airport. He then spoke with the parents that were present, explained the situation to them, and told them that they would receive an invitation once everyone had had a chance to rest. [56] [ 67 ] The next day (Saturday), he received a call from the accused in the afternoon.

The accused apologized for his hasty departure, which he attributed to his diabetic mother and the fact that the plane was late, and said that he had to leave as quickly as humanly possible because his mother had to eat. [57] Mr. Thivierge says that he never saw the accused’s mother at the airport. [58] [ 68 ] On Tuesday morning before he left for school, Mr. Langis informed him that the accused would not be teaching, that people would be taking care of him, and that it was related to the Senegal trip. [59] [ 69 ] Before going to the school, he contacted the accused by phone.

The accused informed him that he was being accused of something sexual and that he would not be going to the school. [ translation ] “I’m going through a major depression”, he stated. [60] [ 70 ] On the trip home, the accused had told him that it was the worst group he had ever had in terms of their accomplishments and sense of cooperation. He also said that because of the poor quality of the group, he was not sure if he would hold a show in appreciation, in honour of the trip, or a show in the auditorium. [61] [ 71 ] Mr.

Thivierge explained that for this type of trip, it is in no way in accordance with general policy for one of the leaders to sleep in the same room as a student. [62] [ 72 ] In cross-examination, he stated that during the flight from Dakar to Casablanca, he sat in the front and could not see the accused, who was at the back, [63] and that from Casablanca to Montreal, they had a glass of wine with their meal. [64] [ 73 ] At Dorval, he did not see the accused pick up his luggage. [65] [ 74 ] In Montreal, he knew that X and the accused would be sharing the same room in Dakar. [66] [ 75 ] On the plane from Casablanca to Montreal, he told the accused that he had reservations about the group, that he had expected more maturity, and that there was constant tension. [67] [ 76 ] Even though there was nothing planned, he does not understand why the group did not get together at the airport since they had spent the last three weeks together. [68] 4.8 The admissibility of the accused’s out-of-court statement [ 77 ] During the voir dire, the accused’s oral out-of-court statement, which was recorded on videotape, was admitted into evidence after it was found to have been given freely and voluntarily and that his constitutional rights had been respected. [ 78 ] The prosecution did not introduce it into evidence, however, preferring to use it in cross-examination, which in the end it refrained from doing. [ 79 ] It should be noted that the file does not contain the consent of the parties to introduce the voir dire evidence for the purposes of the hearing on the merits. [ 80 ] This is, essentially, the evidence presented by the prosecution. 5 .

The defence’s evidence 5.1 Testimony of Mr. Abdoul Karim Mbyaye, Senegalese guide [ 81 ] Mr. Abdoul Karim Mbyaye ( “ Karim ”), the Senegalese guide, testified by videoconference from Senegal. He has known the accused since 2004. In 2007, he was responsible for greeting the students travelling to Africa. He accompanied them from the Dakar airport to the Collège Sacré-Cœur. He shared a room on the second floor with Mr. Thivierge. [ 82 ] The accused occupied a three-room apartment on the first floor with X. There was a living room, a bedroom, and a bathroom.

In the living room, there were two windows facing outside, but there were no windows in the bedroom. [69] [ 83 ] He noticed that the accused and Mr. Thivierge drank beer at the college and at the restaurant. [70] He saw the accused drinking beer at breakfast. [71] He said that he thinks it is his favourite drink. [72] [ 84 ] He said that the day before their departure, they (Z, X and he) came back from Dakar at around 4:00 p.m. by taxi after finishing their shopping. The accused told him that he was going to have a nap and asked him to wake him up in an hour so that they could have a meeting before supper. [73]

[ 85 ] He therefore went downstairs to wake him up but found him sitting at the bottom of the stairs, smoking a cigarette. [74] [ 86 ] During the meeting that ensued, he did not notice anything out of the ordinary in what X said. He did not observe any embarrassment or nervousness that would indicate that his state of mind had changed. [75] [ 87 ] At no time during the trip did he notice any inappropriate behaviour on the part of the accused towards the students. [76] 5.2 Testimony of Mario Godon [ 88 ] In 2006-2007, the accused had been the spiritual life counsellor for twenty years.

He was planning a sixth humanitarian project. Following a discussion with X’s mother, he decided to accept him into the group as that would allow them to form two pairs of boys. [ 89 ] Upon their arrival in Dakar, the accused was supposed to share his room with X, but not on their return. [ 90 ] Since he had personality conflicts with other students, X asked if he could share his room on their arrival. [77] It was not going well with A, Y, and C.

He did not want to share a room with the other boys. [78] [ 91 ] In Tivaouane, X stayed with a host family with Y. [79] [ 92 ] The accused explained that the living room door in the apartment was always open, except at night when it was locked. [80] He would leave the key on the table beside the living room door, [81] and before going to sleep, he would remind X not to forget to lock the door before going to bed. [82] [ 93 ] Throughout his twenty-five year career, he had never seen a student like X, who walked around the room naked, all the time, all the time, all the time.

He reprimanded him for his conduct in vain; X did not listen to him. [83] The accused would go to the bathroom and close the door, but X would enter while he was in the shower. [84] [ 94 ] Because he was fighting with his girlfriend (Z), X asked the accused if he could accompany him to Thiès. They went shopping. Afterwards, they went to the Délices restaurant for pizza. They began talking about all sorts of things. X’s relationship with Z was not working. X told him about his sexual experiences with Z, and with two male friends in City A.

He also told him about masturbation and oral sex sessions involving the three boys together. [85] [ 95 ] The accused never spoke to him about his sex life or his relationship with a woman named Linda. He claims that, in any event, he is not married and has never dated a woman named Linda. [86] [ 96 ] After their trip to Saint-Louis, the group returned to the Collège Sacré-Cœur in Dakar. At the end of the day, everyone was tired. The students wanted to know how the rooms would be organized. The accused told them that they could do what they wanted. He and Mr.

Thivierge did not insist on the room-sharing arrangements. X decided to stay downstairs with him. The accused did not insist otherwise, as he was tired. [87] [ 97 ] The next day, they went shopping, and those that did not need to buy anything stayed at the college. X was part of the group that went shopping. [88] [ 98 ] X joined him at a table outside the Place de l’Indépendance in Dakar. They each had two beers. They drank another beer with their lunch.

The temperature was forty degrees Celsius. [89] [ 99 ] Upon their return to the Collège Sacré-Cœur, he told Karim to wake him up in an hour so that he could have a nap in his room. He left the key on the table beside the living room door, put on his blue boubou and fell asleep on top of the blankets. [90] . [ 100 ] Approximately thirty minutes later, he was awoken by a noise. The accused says that he saw X completely naked, masturbating near his bed. [91] In anger, he exclaimed “ crisse de tabarnack ” and said [ translation ] “what are you doing?” [92] [ 101 ] At the same time, there was a knock at the door.

They were pounding away, [93] he added. Stunned, he pulled down the net and went to the door. B and Z were there. B was not feeling well. Z did not say anything to him. [94] [ 102 ] Z entered the living room and sat down on the couch with her boyfriend. [95] According to the accused, they argued because X had a crush on B. [96] [ 103 ] As he did not want to stay there while they fought, the accused went to sit on a plastic chair on the sidewalk outside. Mr. Thivierge joined him.

They had a beer before meeting with the students to discuss their positive and negative experiences during their stays with the host families. [97] [ 104 ] During this feedback session, X spoke about his experience for five to ten minutes. He did not say anything unusual. Next, they had their meal. Then they packed their bags and returned to the Dakar airport. [98] [ 105 ] Upon arriving at the airport, he asked Mr. Thivierge to go in first while he finished with the group. [99] [ 106 ] The accused did not drink any alcohol at the Dakar airport or between Dakar and Casablanca.

During the stopover in Casablanca, he had a beer and a sandwich for dinner with Mr. Thivierge. [100] [ 107 ] He sat next to Mr. Thivierge on the plane to Montreal. During the flight, they each gave their opinion on the group. [101] [ 108 ] On their arrival in Canada, Mr. Thivierge was first, and the accused was last. [102] [ 109 ] After going through Canadian customs, the accused collected his luggage. He saw that parents were there, including Y’s mother,

with whom he spoke for ten to fifteen minutes. He also had a discussion with Ms. P., D’s mother.[103] [110] Thirty minutes later, he met his mother and a friend, Colette, who were waiting for him. As the plane arrived two hours late, heasked Ms. P. to tell Mr. Thivierge that he had to leave because his mother, who has diabetes, needed to eat. He also spoke to Z’s parentsand, to reassure them, suggested that they bring their daughter to the clinic at Hôpital Saint-Luc.[104] [111] The next day (Saturday, March 10), he contacted Mr. Thivierge.

They discussed the trip and the culture shock.[105] [112] On Monday, March 12, he saw his doctor because he was exhausted. His doctor put him on sick leave for an initial period of sixweeks.[106] [113] He then tried to contact a secretary at the school. As there was no answer, he left a message on her answering machine,informing her of his absence due to burnout.[107] [114] The next day (Tuesday, March 13), in the evening, Mr. Langis told him not to come to work as the police were investigatinghim in connection with a sexual assault. Mr. Langis told him to contact Ms.

Paradis so that he could consult the president of hisunion.[108] [115] The day after that (Wednesday, March 14), the accused called Ms. Paradis. She tried to explain the procedure at the union level.During the conversation, she mentioned that the matter was of a sexual nature.

As he was extremely stressed and had taken strong pillsthat his doctor had prescribed, there are parts that he does not really remember,[109] he explained. [116] During his testimony, the accused also asserted that X had many learning disabilities and significant academic delays.[110] [117] He claims that one day in Dakar, when the living room was unlocked, he caught X rummaging through a box and saw himtaking condoms.

X ignored his accusations and left the living room.[111] [118] He claims to have never touched any part of X’s body, nor to have prompted X to touch him in a sexual manner.[112] [119] In cross-examination, he denied that Ms. Paradis offered to call him an ambulance and that Mr. Thivierge had contacted him onthe Tuesday morning.[113] [120] When he spoke to Mr. Langis, he did not tell him about X’s conduct in the room in Dakar because he wanted first to speak toMs. Plante, the De Mortagne High School psychologist.

He did not feel like talking about what happened, especially after what he hadjust been told.[114] [121] He did not talk about it with Mr. Thivierge either, nor did he tell him that X always walked around naked.[115] [122] He admits having thrown away the journal and the yearbooks. [translation] “When you’re depressed, you clean up, and I threwaway a lot of things”, he said.[116] [123] He claims that X did not get along with A, C, or Y. That is why X wanted to share his room on their arrival in Dakar.

He madesure to tell him, however, that he would be paired with Y for their stay with the host family.[117] [124] He says that at the time of the alleged incident, it was forty degrees. He explained that it was extremely hot, and so he openedthe window because [translation] “the fan was not sufficient”.[118] [125] He does not understand why he did not tell X to go sleep elsewhere considering that he found his behaviour of walking aroundthe room naked to be inappropriate.[119] He did not discuss this situation with Mr. Thivierge because Mr.

Thivierge did not have muchtime for him, but he admits that he could have spoken to Karim about it, but that he did not.[120] 5.3 Reopening X’s cross-examination [126] To comply with the rule in Browne v.

Dunn, (1893) 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.), I allowed the reopening of X’scross-examination as a matter of procedural fairness in regard to the incident alleged by the accused involving X masturbating in theroom in Dakar and in regard to X confiding in him about his homosexual experiences in City A. [127] The masturbation issue had been addressed by counsel for the defence during X’s cross-examination, and X had answered in thenegative.[121] Confronted again, he denied having masturbated in the room that he shared with the accused and having told him abouthomosexual experiences in City A.[122] [128] This is essentially the evidence put forth by the defence. 6 .

Positions of the parties [129] The prosecution leaves the assessment of the credibility of the witnesses to the discretion of the trial judge. [130] The defence argues that when contradictions exist between the parties’ versions, the accused should benefit from the reasonabledoubt and be acquitted of the offences. 7 . The notion of credibility [131] In cases such as this one where credibility is significant, the trial judge must assess the evidence in light of the Supreme Court’sdecision in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742, and further clarifications in, inter alia, Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788; J.H.S. 2008 SCC 30 , [2008] 2 S.C.R. 152; R.E.M., 2008 SCC 51 , [2008] 3 S.C.R. 3;

and C.L.Y ., [2008] 3 S.C.R. 5 . [ 132 ] The approach set out by Cory J. in W.(D.) is not a sacrosanct formula to be recited in an incantatory manner. Thus, the judge is no longer required to systematically follow the three-step approach set out in this leading case. What matters is that the substance of the W.(D.) instruction be respected.

The first two steps may now be dealt with simultaneously. [ 133 ] Consequently, in a case that turns on credibility, the judge must first direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt ( R. v. Dinardo , supra , at paragraph 23 ). If so, the accused must be acquitted.

If not, the judge must then consider whether the evidence as a whole establishes the accused’s guilt beyond a reasonable doubt. [ 134 ] It is worth repeating that the accused’s testimony (including that of his witness) must not be considered in isolation but in the context of the evidence as a whole and that a witness may be believed entirely, in part, or not at all. 8.

Analysis [ 135 ] The defence claims that the complainant made an allegation of a sexual nature because he feared that the accused would denounce his inappropriate behaviour to the De Mortagne High School psychologist upon their return from the trip to Africa. To illustrate his point, he cites the well-known figure of speech, “the best defence is offence”. [ 136 ] In cases involving sexual offences, the defence is not required to put forth a theory to explain the complainant’s behaviour.

His argument, however, is not based on any credible evidence in the record, especially since the accused never informed him of his intention to do so once they returned to Canada. [ 137 ] The accused denies any conduct of a sexual nature towards the complainant. Several elements of the evidence, however, undermine his credibility: (1) his consumption of alcohol, which he plays down, (2) the way in which he isolated the complainant during the trip, (3) the fact that he shared a room with the complainant during the last two days in Dakar, (4) his attitude towards Z and Mr.

Thivierge, (5) his behaviour at the airport towards Mr. Thivierge, the students, and their parents, and (6) his comments during the telephone conversations with Ms. Paradis upon his return to Canada. [ 138 ] The accused believes that his consumption of alcohol during the trip was reasonable. He denies having had anything to drink at the Casablanca airport on the way home. On this point, the accused is contradicted by Mr. Thivierge, who claims that that morning at the Casablanca airport, before leaving for Montreal, he was [ translation ] “sweating alcohol” and [ translation ] “smelled like rubbing alcohol”.

Moreover, the Senegalese guide, Karim, witness for the defence, said that beer was his favourite drink. Z also saw him drinking beer on several occasions, in Dakar, Tivaouane, and Thiès. From the evidence as a whole, I find that the accused drank beer on a regular basis, if not every day. [ 139 ] On two occasions, the accused acted in such a way as to isolate the complainant from the rest of the group. Z explained that the accused went alone to Thiès with her boyfriend. She wanted to accompany them, but the accused refused, even though there was still room in the taxi.

He claims that he needed a boy to transport things. They returned with cookies, however, which surprised her. This was a pretext so that he could be alone with the complainant in order to have conversations of a sexual nature with him. [ 140 ] The second occasion began the evening of Wednesday, March 7, in Dakar, when the accused prepared a list of twelve students who would be permitted to go to the market by taxi the next day to finish their shopping. Z wanted to be part of the group, but the accused told her that the list was full and that she could not accompany them.

She had to resign herself to asking her boyfriend to buy her a pair of pants. Mr. Thivierge found this strange since the complainant had already finished his shopping. Logically, it was Z who should have gone shopping, not the complainant. This was a tactic on the accused’s part to bring the complainant with him. Moreover, while the other students were shopping, the accused sat down with the complainant at a table outside the Place de l’Indépendance, where they drank three or four beers over lunch.

The accused took the opportunity to confide in him about his personal life and discussed the subject of pedophilia. [ 141 ] Moreover, photo D-17, filed by the defence, is telling as to the trust that the complainant had in the accused. It shows a happy young man sitting down, leaning his head on the accused’s shoulder. [ 142 ] On March 7, upon their return to Dakar, the accused had no valid reason to continue sharing his room with the complainant. If I am to believe his testimony, which I do not, the accused reprimanded the complainant when he walked around naked in the room.

Moreover, he claims to have caught him stealing condoms, which I also do not believe, especially considering that he was not confronted with this incident during cross-examination. He claims that the complainant ignored these accusations. In these circumstances, it is inconceivable that he discussed it with him. He could easily have sent him to go sleep upstairs with another student or one of the other leaders. [ 143 ] His attitude towards Mr. Thivierge is incomprehensible. First, he chose him to accompany the group to Senegal. He was his right-hand man.

He claims that the complainant engaged in inappropriate conduct (nudity, taking condoms, and masturbating in the room). But he did not mention a word of this during the trip. On the return flight, they discussed the group’s lack of maturity, but nothing was said in regard to the complainant’s alleged conduct. Not one word was said, not even a mention that anything particular had happened. [ 144 ] I have no faith in his explanation that he remained quiet because he wanted first to discuss it with the school psychologist upon his return to work.

It should be noted that he also did not discuss it with the principal, Mr. Langis, or with Ms. Paradis, the managing secretary. [ 145 ] His behaviour at the Montréal-Trudeau airport also suggests the desire to flee. He claims that his mother and a friend (Colette) were waiting for him. Nobody saw them. Were they present? I highly doubt it. If they were present, his explanation that he had to leave the premises quickly because his mother has diabetes and needed to eat something does not hold up. Even if the return flight was almost

two hours late, there are a sufficient number of restaurants at the airport, which would have allowed his mother to eat a meal or a snack.Moreover, he did not inform Mr. Thivierge of his hasty departure. Nobody saw him talking to the parents that had come to pick up theirchildren. Ms. C. M., the complainant’s mother, voiced her disappointment in this regard. After spending two weeks overseas, one wouldexpect the accused to speak to them before hastily leaving the premises. [146] Once back home, the accused saw his doctor on Monday, March 12, 2007. He was put on sick leave for an initial period of sixweeks.

On Wednesday, March 14, he called Ms. Paradis, the managing secretary, to inquire about the next steps with the union. Sheclaims that he told her that he was in [translation] “big trouble”, without providing further details. [147] In his testimony, the accused stated that he was acutely stressed during that conversation, that he had taken strong pills that hisdoctor had prescribed, and that, consequently, there are parts that he does not remember. In final argument[123], his attorney emphasizedthe fact that he was suffering from depression to demonstrate his state of mind during the conversation with Ms.

Paradis. [148] The excuse of medication to justify the accused’s failure to remember certain parts of the conversation does not hold up. He wascoherent on the phone. His memory is selective, however, when he is asked to comment on something that could be compromising. Heprefers not to remember. Yet he remembers the information provided by Ms. Paradis in regard to the steps he needed to take with theunion[124] and the instructions provided by Mr. Langis.[125] He did not confirm, deny, or explain his statement that he thought he wasin big trouble.

Nor did he have any comment in regard to the March 13 conversation, during which he mentioned that he overdid it. Hisrefusal to address these statements, invoking a pretext to conceal the truth, affects his credibility. [149] Taken in isolation, these statements might appear ambiguous. Considering the circumstances as a whole, however, they becomeuncontradicted elements of circumstantial evidence that lead the Court to confirm, without speculation, his after-the-fact conduct, anddraw an inference of consciousness of guilt (R. v.

G.M., 2009 QCCA 2138). [150] The accused also stated that the complainant was in conflict with the boys, including Y. Yet he matched them together duringtheir stay at the host family in Tivaouane. He claims that the complainant has serious learning disabilities, but his mother claims thecontrary. He alleges that the complainant argued with his girlfriend in Dakar because he had a crush on B. According to Z, however, herboyfriend showed her the masks that he bought at the market. Finally, the accused threw away the journal and yearbooks withoutjustification. Burnout or depression does not excuse everything.

All of this taints his credibility. [151] I therefore find that the accused’s testimony is neither credible nor reliable. I do not believe that the complainant wasmasturbating at the foot of his bed in Dakar. I do not believe his denial of the conduct alleged against him. Not only do I disbelieve theaccused’s testimony outright,[126] but it raises no reasonable doubt in my mind. The explanations provided by the accused serve only tojustify his after-the-fact conduct. [152] The analysis does not cease once the second W.(D.) step has been passed.

The trial judge must ask him or herself if the evidenceas a whole establishes the accused’s guilt beyond a reasonable doubt. [153] The defence argues that the complainant could have invented the whole story in order to prevent the accused from denouncinghis inappropriate sexual behaviour to the school psychologist. I have already dismissed the allegation of masturbation in the room inDakar. Nothing in the complainant’s testimony suggests such a strategy. He testified in a calm and balanced manner and had a goodrecollection of the events.

He recounted the facts with sincerity, without animosity or vengeance towards the accused. [154] Moreover, the complainant’s subsequent conduct is consistent with his allegation. He did not speak to the accused on the plane.On his arrival in Montreal, he left the premises with his parents, without waiting for his girlfriend. At home, he took refuge in his roomwithout speaking about the trip. The next day, he refused to go out for supper with his girlfriend. He did not give his parents any detailsabout the trip. On his return to school, he met with his social worker, with whom he had an appointment.

I allowed document P-2,handwritten by the accused during this meeting and recounting his version of the events, to be filed into evidence, not to establish theveracity of its content, but for the limited purpose of explaining his conduct and to establish that it was not a recent fabrication. [155] In R. v. Dinardo, 2008 SCC 24 , [2008] 1 S.C.R. 788, the Supreme Court ruled that a complainant’s prior consistentstatements could not be used to confirm his or her in-court testimony (at paragraph 39), but that: [37] In some circumstances, prior consistent statements may be admissible as part of the narrative.

Once admitted, the statementsmay be used for the limited purpose of helping the trier of fact to understand how the complainant’s story was initially disclosed.

Thechallenge is to distinguish between “using narrative evidence for the impermissible purpose of ‘confirm[ing] the truthfulness of thesworn allegation’” and “using narrative evidence for the permissible purpose of showing the fact and timing of a complaint, which maythen assist the trier of fact in the assessment of truthfulness or credibility” McWilliams’ Canadian Criminal Evidence (4th ed. (loose-leaf)), at pp. 11-44 and 11-45 (emphasis in original); see also R. v. F. (J.E.) (1993), (ON CA), 85 C.C.C. (3d) 457(Ont. C.A.), at p. 476). [156] And at paragraph 38, the Court added: [38] In R. v. G.C., [2006] O.J.

No. 2245 (QL), the Ontario Court of Appeal noted that the prior consistent statements of acomplainant may assist the court in assessing the complainant’s likely truthfulness, particularly in cases involving allegations of sexualassault against children. As Rouleau J.A. explained, for a unanimous court: Although properly admitted at trial, the evidence of prior complaint cannot be used as a form of self-corroboration to prove that theincident in fact occurred. It cannot be used as evidence of the truth of its contents.

However, the evidence can “be supportive of thecentral allegation in the sense of creating a logical framework for its presentation”, as set out above, and can be used in assessing thetruthfulness of the complainant. As set out in R. v. F. (J.E.) at p. 476: The fact that the statements were made is admissible to assist the jury as to the sequence of events from the alleged offence to theprosecution so that they can understand the conduct of the complainant and assess her truthfulness. However, the jury must be instructed

that they are not to look to the content of the statements as proof that a crime has been committed. The trial judge understood the limited use that could be made of this evidence as appears from his reasons: [I]t certainly struck me while the fact that you go and tell somebody that you were molested doesn’t confirm the fact that you weremolested. I’m struck by the manner or the way it came out, tends to confirm [the complainant’s] story — how they were reading thisbook, and how the thing came up about child sexual abuse.

In cases involving sexual assault on young children, the courts recognize the difficulty in the victim providing a full account of events. Inappropriate cases, the way the complaint comes forth can, by adding or detracting from the logical cogency of the child’s evidence, be auseful tool in assisting the trial judge in the assessment of the child’s truthfulness. This was such a case. [Emphasis added by theSupreme Court] [157] The Ontario Court of Appeal’s reasoning in G.C., adopted by the Supreme Court in Dinardo, also applies to the facts of thepresent case.

Contrary to Dinardo, in which the complainant acknowledged having previously made up stories for her own amusement,nothing of the sort exists in the present matter. There is neither confusion nor incoherence in the complainant’s version. [158] Moreover, his statement is confirmed by other credible witnesses on peripheral aspects, i.e. his mother, Z, and Mr. Thivierge.

Ifound no collusion between them or contamination of their respective testimonies. [159] The defence argues that if the incident took place in the manner alleged by the complainant, someone would necessarily haveheard conversations of a sexual nature, given that people just outside the room walked around to knock at the open windows.

I do not seeanything inconsistent with the complainant’s version, especially considering that the fan would have muffled the noise inside the room.If any intimate conversations took place between the accused and the complainant, these would certainly have been held at a low volumeto ensure that no one could hear them. [160] The defence’s argument amounts to sophism and risks backfiring against the accused.

If we apply this circular reasoning to theaccused’s version of events, we could reasonably infer that he never exclaimed “crisse de tabarnack” upon seeing the complainantmasturbating at the foot of his bed, since nobody heard him. [161] The defence also argues that Z testified falsely to assist the prosecution and that Mr. Thivierge’s testimony must also bedismissed because he made inappropriate comments in regard to the accused. [162] There is nothing in the evidence demonstrating that Z was acting out of any wish to accommodate. She recounted the facts in afrank and precise manner.

Moreover, she rightly questioned why she had been excluded by the accused on two occasions during the trip. [163] It is true that Mr. Thivierge stated that the accused had an excuse[127] to explain why he had paired up with the complainant ontheir arrival in Dakar. The manner in which he expressed this shows that he does not believe the reason that the accused gave, i.e. toprevent the complainant from having sexual relations with his girlfriend during the trip.

He also added that on the afternoon of Saturday,March 10, the accused called him to apologize for his hasty departure (which the accused denies), on the pretext[128] that his mother hasdiabetes, that the airplane was late, and that he had to leave as quickly as possible because his mother had to eat. His use of the wordpretext suggests that he does not believe the accused’s explanation since he did not see his mother at the airport. [164] The words [translation] “excuse” and [translation] “pretext” represent the opinion of a witness on specific facts but are notbinding on the trial judge.

This is insufficient to dismiss a witness’ testimony. Despite his choice of words, I find Mr. Thivierge credibleand his version reliable. [165] Moreover, the accused’s subsequent conduct causes one to wonder. On the plane between Dakar and Casablanca, he did notspeak to the complainant. Between Casablanca and Montreal, he did not tell Mr. Thivierge about the complainant’s conduct that hefound inappropriate. On their arrival in Montreal, he left Mr. Thivierge alone with the group. He left in a hurry without greeting theparents.

On Monday, March 12, he did not inform the psychologist, as he initially planned, or the school principal. [166] Why would he flee the airport unless he did not want to face the complainant and his parents? Further, it is inconceivable that hewould leave his co-leader alone with the group and not address the parents. [167] In “Guide to Criminal Evidence”, no. 11.355, Boilard J. states that [translation] “[i]f the accused’s explanation about hisbehaviour is rejected by the trier of fact, the unfavourable inference therefrom may be made”. He adopts the ruling of the Ontario Courtof Appeal in R. v.

Wheatle, (1993), (ON CA), 86 C.C.C. (3d) 378 (Ont. C.A.) at 381: The trial judge viewed the appellant’s on February 29, 1988, when he was apprehended by the police, as circumstantial evidence of aconsciousness of guilt, notwithstanding the appellant’s explanation for his conduct.

In our view, the trial judge, having rejected theappellant’s explanation for his flight, was entitled to view the appellant’s flight as he did. [168] Having rejected the accused’s explanations, I therefore find that we can reasonably infer, without speculation, from his after-the-fact conduct, combined with the other elements of circumstantial evidence, including his comments during the telephone conversationswith Ms. Paradis, that he acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty personand inconsistent with the conduct of an innocent person (R. v.

White, (SCC), [1998] 2 S.C.R. 72 at paragraph 19, citingWeiler J. in R. v. Peavoy , (1997), 117 C.C.C. (3d) 226 (Ont. C.A.) at 238). [169] Having assessed the whole of the evidence, I find no reasonable doubt as to the accused’s guilt. The prosecution has established,beyond a reasonable doubt, the essential elements of the sexual offences committed against the complainant at the end of the trip toSenegal. 9. Conclusion

[ 170 ] Consequently, I find the accused’s guilt has been established beyond a reasonable doubt. [ 171 ] FOR THESE REASONS , the Court finds the accused guilty of the two counts alleged against him. __________________________________ PIERRE BÉLISLE, J.C.Q. Mtre Hélène Décarie Criminal and penal prosecutor For the prosecution Mtre Philip D. Schneider For the defence Dates of hearing: May 25, 26, 27, 2009, February 10, 2010, March 28, 29 and August 25, 2011