r v. DEREK MICHAEL GLEGG, 2021 QCCQ 5440

R. c. Glegg 2021 QCCQ 5440 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Criminal and Penal Division No: 500-01-200624-200 DATE: April 22, 2021 ______________________________________________________________________ PRESIDING : THE HONOURABLE LOUISE PROVOST, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v. DEREK MICHAEL GLEGG Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr.

Derek Michael Glegg stands charged with one count of having, between December 3 rd , 2018, and December 8, 2019, in Montreal, without reasonable justification or excuse and with intent to obtain anything by threats, accusations, menaces or violence induced or attempted to induce S. A. to give him money, committing thereby an indictable offence pursuant to

section 346.(1)(1.1)

b) of the Criminal Code . THE EVIDENCE The complainant [ 2 ] S. A. (the complainant) is a 46 year old woman. In 1996, she was diagnosed with schizophrenia, undifferentiated type in a medical report [1] . [ 3 ] Canada Revenue Agency [2] determined in 2016 that she would be eligible for the disability tax credit on her income tax and benefit return for 2015, as well as for the following years. [ 4 ] She lives alone and is unemployed. In 2018, she was volunterring at the Jewish Hospital.

She then earned welfare money for approximately 70.00$ a month. [ 5 ] In the summer of 2018, she met the accused at the bus stop near her parent’s home. It was their first encounter. [ 6 ] She recalls that he was trying to make conversation and that he was flirting with her. He asked for her phone number and called her. They planned to go to La Ronde together. [ 7 ] On the second encounter, she invited him to her apartment. In the living room, when seated on the couch, he asked her to give him a blowjob and she agreed. [ 8 ] He also wanted to take pictures of her undressed with his iPhone.

She felt uncomfortable but she did not tell him. [ 9 ] She believed that he took the pictures for no particular reason. He then showed her the pictures very fast. The pictures showed her thong underwear, her butt and grabbing her breasts. [ 10 ] She met him around ten times between summer 2018 and December 2018. Usually, he came to see her on the weekends. [ 11 ] He always wanted her to give him a blowjob. She did around five times.

On one occasion, he was aggressive because she refused to do it at a park, on a weekend, in the summer of 2019. [ 12 ] She called him every day from her parent’s home and from her home. She admitted that he was her only friend. [ 13 ] In the winter of 2018, he was making fun of her. She told him that she did not like that because he was hurting her feelings.

[ 14 ] In December 2018, after lunchtime, he called her and wanted to meet at metro Côte-Vertu. She went by bus and met him inside the station. [ 15 ] He asked her for money. This was the second time that she saw the nude pictures of herself. [ 16 ] Her Royal Bank is located at 3131 Côte Vertu in the North Gate shopping center right across the metro. [ 17 ] Before she went to the ATM machine to withdraw 300.00$, he said that he expected, “ no outburst ”.

This happened December 3 rd , 2018. [ 18 ] When she replied that she would call the police, he said, “ Do you want me to put your pictures on internet ?” [ 19 ] She then withdrew 300.00$ [3] that he took from her hands in the bank. He immediately broke his iPhone that contained the pictures and threw it on the ground. She kept the broken phone in a bowl at her apartment until it disappeared one day after his visit. [ 20 ] She recognized her PDA history and pointed at a transaction dated December 3 rd , 2018. She could not do anything with his phone because she did not have the password.

The accused also carried a silver smart phone. [ 21 ] She also could not tell her parents because her mother was undergoing chemotherapy and radiotherapy. She also knew that her parents did not appreciate him. [ 22 ] They often went shopping together, notably on St-Hubert Street. [ 23 ] After December 2018, she felt vulnerable and lonely. He always wanted “ oral sex and money ”. [ 24 ] He needed money to eat, to pay his rent, and she still gave him money, even though she was aware that he was exploiting her. [ 25 ] She knew he had a roommate by the name of O..

She was not interested in being his roommate when he asked her at the end of their relationship. [ 26 ] She got in touch with him through a landline at her home. She had no computer no tablet nor a cellphone at the time. [ 27 ] At the police station, she remembers that she gave two statements that were filmed. Before she testified, she watched the interview because it helped her recollect what had happened. [ 28 ] This relationship lasted less than two years. [ 29 ] It ended in December 2019 after her father saw all the money was missing. She admitted giving him money to pay his rent.

Once she gave him 20.00$ for a straw hat which he paid back the next day. [ 30 ] The accused was living in the vicinity of her parent’s house, on the same street. [ 31 ] She accompanied her father at his house in December 2019. Her father rang his doorbell. [ 32 ] She went there to make a deal with him to get back the money he owed her and if he did, she would not call the police. [ 33 ] This deal did not work out and she agreed, as asked by her father, not to talk to him anymore.

She also pressed charges against him for extortion. [ 34 ] She admitted that she sometimes has memory loss issues, among others, when she has to remember precise dates. The accused [ 35 ] He is 62 years old. He got injured in a forklift accident in 2010. Presently, he cannot work and receives welfare. [ 36 ] After his accident, he underwent therapy for one year and a half. [ 37 ] He has been living with the same roommate for the past 13 years, her name is O. C.. He met her at the “ mountain ” after he got out of prison. He takes care of her out of the goodness of his heart. [ 38 ] His roommate is schizophrenic.

He makes sure that she takes her medication and he also does the cooking and the cleaning. Their relationship was never intimate. It is strictly platonic. [ 39 ] Since his accident in 2010, he has no sexual drive and he cannot get an erection. He claims the medications Cialis or Viagra do not work. [ 40 ] He met the complainant in the summer of 2017. Since then, she thought that he was her boyfriend. He thinks that she is miserable and has no friends. [ 41 ] In cross-examination, he said that they did not exchange phone numbers the first time they met.

It could have been the second time at the park or most probably the third time at a shopping center. [ 42 ] At the beginning, it was not so bad but she soon started calling him daily. On one occasion, she called him 17 times. [ 43 ] The complainant is a compulsive buyer. She even got “ scammed ” at a kiosk for 300.00$. She buys a lot of the same items in the

color blue such as four to five pairs of scissors at the same occasion. [ 44 ] He knows that she has 40 pairs of scissors and 60 pairs of sunglasses which he saw from the entrance door because he has never been in her apartment. [ 45 ] In fact, he affirms being skeptical about going to people’s houses. He only went into his one friend’s house. [ 46 ] He never saw naked pictures of S. and he does not find her attractive. He also never got oral sex from the complainant. [ 47 ] Moreover, the accused claims that he never owned a smart phone.

His current phone is an LG flip phone that he pays monthly, with no internet. He had this phone in 2017. [ 48 ] He has never used internet since 2010. In 2010, he only used Facebook twice to find family members. Later in his testimony, it came out that he went on Indeed and that he knows YouTube. [ 49 ] The complainant’s father lives near his home. He is a racist because he called him the “n” word. He is always checking on his daughter and does not allow her to have a cellphone or internet. [ 50 ] He admits being a convicted criminal with a lengthy criminal record since 1978, being first convicted in Canada.

He was then sentenced to 25 years in Florida in 1981 for kidnapping, armed robbery and attempted first degree murder. [ 51 ] He came back to Canada around 1998 and was sentenced to 13 years for armed robbery around 2000. [ 52 ] He reiterated that he only “ does banks ” and that he was never involved in sexual offences or extortion. [ 53 ] His testimony is extremely detailed but only concerning one particular day in December 2018. [ 54 ] That day, the complainant called him and said she wanted to go shopping. They met at metro Côte-Vertu but had to stop at the bank.

They went to Friperie Renaissance and Joe Fresh at Plaza Côte-des-Neiges. He left but she continued shopping.

He then specified that they went shopping four times all together. [ 55 ] He remembers that he has been to the Royal Bank with the complainant several times. [ 56 ] Previously, he said that he does not like shopping but he has admitted shopping with her ten times in examination in chief. [ 57 ] The accused confirms that the plaintiff once lent him 20.00$ for a straw hat that he paid back a few days later, after he got his welfare. [ 58 ] He claims that the complainant’s biggest fear is that her parents lock her up. [ 59 ] He also affirms that she hates her father and wants to kill him, kill her mother and her aunt.

She would speak loud about that. On more than eight occasions, she wanted to hurt herself. [ 60 ] He confirms that the complainant came to his house with her father to get paid back. He adds that she previously gave him an ultimatum: either he leaves his roommate to take care of her or she is going to the police to say that he raped her. [ 61 ] He also distanced himself from her half a month prior to the event because she was becoming paranoid. She mentioned that she wanted to kill her dad and he did not want to be involved in that. He was scared that he was being recorded. She also wanted to kill herself.

He then called everything off. [ 62 ] Mr. Glegg urged the Court to believe that the complainant has made up these allegations because she was angry about not being accepted as his roommate. She was also jealous of Ophélie. [ 63 ] In a way, he really thinks that he has been manipulated. [ 64 ] He finally thought the charges laid against him were a joke. He adds that he never saw any evidence against him, even though he asked the police officer.

THE ISSUE [ 65 ] Facing a context of conflicting testimonial accounts, the W. (D.) [4] framework applies. [ 66 ] Based on the whole of the evidence, did the prosecution prove beyond a reasonable doubt that the accused did commit an extortion against the complainant between December 3rd, 2018 and December 8, 2019? THE LAW [ 67 ] The test for assessing reasonable doubt when credibility is in issue was defined by the Supreme Court in R. v. W. (D.) [5] . First, if the Court believes the evidence of the accused, it must find him not guilty.

Second, if the Court does not believe the evidence of the accused, but is still left with reasonable doubt by the evidence, it must find him not guilty. And third, even if the Court is not left with a reasonable doubt by the evidence of the accused, it must still ask itself whether, after considering all the evidence, it is satisfied beyond a reasonable doubt that the accused is guilty. [ 68 ] The Court is aware that criminal trials cannot properly be resolved by deciding which conflicting version of events is preferred.

The prosecution always has the burden of establishing the accused’s guilt beyond a reasonable doubt.

[ 69 ] After a careful evaluation of all the evidence, including questions of credibility and reliability, any reasonable doubt that remains must lead to the acquittal of the accused. [ 70 ] In other words, the ultimate function of a criminal trial is to determine whether the prosecution can prove the specific criminal allegations it has made beyond a reasonable doubt. [ 71 ] In R. v.

Vuradin [6] , at paragraph 21 , the Supreme Court stated: The paramount question in a criminal case is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused: W. (D.), at p. 758. The order in which a trial judge makes credibility findings of witnesses is inconsequential as long as the principle of reasonable doubt remains the central consideration. A verdict of guilt must not be based on a choice between the accused’s evidence and the Crown’s evidence: R. v. C.L.Y., 2008 SCC 2 , [2008] 1 S.C.R. 5, at paras. 6-8 .

However, trial judges are not required to explain in detail the process they followed to reach a verdict: see R. v. Boucher, 2005 SCC 72 , [2005] 3 S.C.R. 499, at para. 29 . [ 72 ] The accused does not have to prove that he is innocent. [ 73 ] It must also be emphasized that possible or probable guilt is not enough to convict an accused. If a reasonable doubt as to the guilt of the accused arises from the evidence, the absence of evidence, the credibility or the reliability of witnesses, the Court must pronounce an acquittal. [ 74 ] In R. v.

Morissey [7] , the Ontario Court of Appeal wrote: Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility.

When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still be unreliable. In this case, both the credibility of the complainants and the reliability of their evidence were attacked on cross-examination. ANALYSIS [ 75 ] The complainant and the accused both testified.

No other witnesses were heard. [ 76 ] The identity of the accused was admitted and his statement to the police officers was given freely and voluntarily. It has only been used for the purpose of cross-examination. [ 77 ] In this trial, credibility is a crucial issue. The accused denied any involvement in the extortion. [ 78 ] Mr. Glegg first said that they exchanged their phone numbers on the first day they met in the bus.

In cross-examination, he said that they probably exchanged their numbers the second time at the park but most probably the third time at the shopping center. [ 79 ] The Court questions the veracity of his testimony in regards to this. How could they have met again at the park and then at the shopping center after their first encounter, without having previously arranged these gatherings by telephone? [ 80 ] He also mentioned first that they had been shopping together ten times.

In cross-examination, he was sure it was four times. [ 81 ] The accused first said that he never goes into anyone’s home and then the Court learned that he went to his friend Harold’s house once. [ 82 ] On that point, he related that he never went into the complainant’s apartment and always stayed at the entrance door. [ 83 ] But he knows that she has 40 pairs of scissors. He also mentioned that they went shopping to get four or five more pairs. [ 84 ] She also has 60 pairs of sunglasses, mostly of the colour blue.

He knows that because they are all on a tray near the entrance door. [ 85 ] The accused wants us to believe that he does not know how to use the internet because he has not used it for ten to twelve years. Then the Court learned there was an exception when looking for a family member and another time to look for a job.

He also knows YouTube. [ 86 ] The accused’s tendency to exaggerate leads him to add that the complainant always says that she will kill her mom, her dad and her aunt and that she is always talking about killing her family members. [ 87 ] The Court observed that when she testified, there was no anger on her part against her family members. [ 88 ] Mr. Glegg presented the complainant as someone vindictive. “ I’m gonna say you raped me ” and gave him an ultimatum. [ 89 ] He made it seem like the relationship/friendship was terrible: she was manipulating him and calling him all the time (17 times in one day).

It was hell for him. [ 90 ] It seems strange that he never cut ties with her if the relationship was as he described it. [ 91 ] He always had an explanation to counter the complainant’s version and seemed to want to prove to the Court that every part of

her testimony is impossible. [ 92 ] On the reliability of his testimony, the accused was unable to give a lot of details on his friendship with the complainant, the dates they met, what they did together, on what frequency and how often they met. He remained vague about this. [ 93 ] However, he gave a lot of details that were brought up in cross-examination for a perfectly uneventful day that happened more than two years ago. [ 94 ] The Court refers to when the offence occurred on the 3 rd of December 2018. He remembers “ without a doubt ” that he went shopping with her.

He gives the names of the stores and that they first met at Côte-Vertu metro and went to the bank. [ 95 ] When he is questioned about any other day that he went shopping with the complainant, he cannot give any details about those other times and when it happened. [ 96 ] The complainant’s mental condition did not prevent her from testifying first. Her father was seated in the courtroom but he was never heard. She never seemed bothered by his presence. [ 97 ] The complainant also showed that she had no malice towards the accused.

During her testimony, she turned around twice and answered while laughing with the accused because she was remembering events. [ 98 ] Concerning her parents, she seemed caring, particularly when she spoke about her mother who was being treated for cancer when she was seeing the accused. [ 99 ] She also seemed grateful that her father helped her put an end to the relationship. [ 100 ] Her testimony was fluid and naïve when she reported how she was asked by the accused to give him a blowjob.

She did not look shy because it was consensual. [ 101 ] Regarding the pictures, she felt uncomfortable but she did not tell him. [ 102 ] She suffers with a mental disability but she was able to recount the events. When she could not remember or did not know, she candidly said, “ I don’t know or I don’t remember ”. [ 103 ] In regards to the extortion on December 3 rd , 2018, she gave quite a few details. She recalls the words that were used by the accused: “ He called me at 12 the next day that I insulted him three times and asked to meet at Côte-Vertu to go to the Royal Bank.

He said that I had to give him money or he would put my pictures on the internet ”. [ 104 ] She remembers going by bus and before going to the bank, he said: “I don’t want you to have an outburst ”. When she threatened to call 911, he said he would show the pictures to her parents. [ 105 ] She felt uneasy and went to the bank to withdraw 300.00$ from the ATM machine. He came into the bank and grabbed the money from her hands. He then said, “ Now I’ll leave you alone ” and he broke his phone. [ 106 ] There were no major contradictions in her testimony.

The sexual activity was always consensual except for the time he got mad that she did not want to give him a blowjob in the park. [ 107 ] She remembers that she was on her couch when the nude photos were taken. [ 108 ] She was in possession of the accused’s broken phone but could not access it because she did not have the password.

He took his phone back, she remembered it being in a bowl in her living room. [ 109 ] Those details and many more such as the straw hat, the multiple phone calls, the shopping and the first encounter, demonstrate that she is reliable. [ 110 ] She showed no ill-will towards the accused and clearly, did not look like the person that Mr.

Glegg presented. [ 111 ] For all the previous reasons, the Court does not believe the accused and is not in total acceptance of his testimony when he denies the accusation. [ 112 ] The Court is not left in a reasonable doubt by it because of the accused’s lack of credibility and reliability, as well as contradictions and exaggerations noted in the analysis. [ 113 ] The accused has several and serious prior convictions which also affected his credibility.

Armed robbery, kidnapping and attempted first degree murder, as well as a drug conviction in 2015 are not all the same gravity but they all demonstrate a disregard for the law [8] . [ 114 ]

Section 12 of the Canada Evidence Act allowed the prosecution to cross-examine the accused who has admitted most of his prior convictions when he testified in chief. [ 115 ] He also mentioned multiple times how he turned his life around and changed since 2010. Though, he forgot that he had been convicted in 2015 and sentenced to a probation of six months for a simple drug possession. He said, “ It was just a roach ”. [ 116 ] The Court highlights that many offences are related to dishonesty and this affected his credibility, as well. [ 117 ] In 2020, the Quebec Court of Appeal wrote in Bastien c. R [9] :

Le juge conclut que le témoignage de l’appelant n’est pas digne de foi en raison de ses antécédents judiciaires et du manquement à unengagement souscrit dans le présent dossier de ne pas communiquer avec le plaignant et de ne pas consommer des stupéfiants. Le juge necommet aucune erreur lorsqu’il prend en compte les antécédents judiciaires de l’appelant au

chapitre de sa crédibilité. Il est acquis que «le mépris persistant de la loi est pertinent pour apprécier la crédibilité d’un témoin. On peut inférer qu’un individu qui enfreint sans cessela loi a peu de respect pour la vérité et est donc plus susceptible de mentir ». La fréquence des antécédents peut constituer un indicateurimportant de la crédibilité d’un témoin. [Références omises] [118] To the same effect, the Quebec Court of Appeal stated in 2006[10] : [18] Par ailleurs le mépris persistant de la loi est pertinent pour apprécier la crédibilité d’un témoin.

On peut inférer qu’un individu quienfreint sans cesse la loi a peu de respect pour la vérité et est donc plus susceptible de mentir. Ainsi, dans R. c. Gibson, 2001 BCCA 297, 153 C.C.C. (3d) 465 (B.C.C.A.), paragr. 30, la juge Ryan cite avec approbation l'extrait suivant de la décision du juge depremière instance qui autorisait le contre-interrogatoire au moyen de l'ensemble des condamnations : […] His abiding and repeated contempt for the law is manifest in his persistent involvement in serious crimes. I take the whole of therelevant passage in R. v.

Fengstad and Stewart as read and choose to quote here only this, and this quote from para. 27 of Fengstad andStewart: "In the context of this case, the evidence of the appellant records, which demonstrated a persistent involvement in serious crimes wouldproperly alert the jury to the fact that these men had an abiding and repeated contempt for the laws of this land, a fact which the jurywere entitled to consider in assessing the credibility of the appellants.

To expunge a number of convictions or to order that no cross-examination could take place on the record at all, would be to leave the jury with a false impression as to the circumstances surroundingthe reliability and veracity of the appellants." [119] The evidence shows and the Court is convinced beyond a reasonable doubt that the complainant did not fabricate the accusation.She showed no animosity towards him and as stated before, she showed absolutely no malice. [120] Regarding the accused, the many contradictions and exaggerations as noted above leave the Court with no doubt whatsoeverstemming from his evidence. [121] The complainant’s credibility and reliability were unchallenged. [122] The essential elements of the extortion were proven.

Firstly, the threat to post pictures of the complainant on the internet,secondly the intent to obtain money and finally that the accused induced her to withdraw money. CONCLUSION Consequently, the accused is found guilty of extortion, the only charge laid against him. __________________________________ LOUISE PROVOST, J.C.Q. Me Mathieu CastonguayFor the Prosecution Me Fabrice PoirierFor the Accused Date of hearing: March 10, 2021