r v. Adam, 2014 QCCQ 11920

JH 5280 R. c. Lackman 2014 QCCQ 11920 COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL N o : 500-01-022234-097 DATE: 17 November 2014 (written reasons released 9 December 2014) _____________________________________________________________________________ BEFORE THE HONOURABLE PATRICK HEALY, J.C.Q. _____________________________________________________________________________ THE QUEEN Prosecutor v.

Adam LACKMAN Accused _____________________________________________________________________________ JUDGMENT _____________________________________________________________________________ [ 1 ] Mr. Lackman faces two counts: failure to remain at the scene of a collision while knowing that another person has been injured; [1] and public mischief in reporting the commission of an offence that was not committed. [2] Admissions [ 2 ] In his testimony Mr. Lackman admitted the second offence.

He said that he lied to Constable Belisle when he reported to her (and others) that a car he had rented was stolen on 11 January 2009. His evidence on this point is unequivocal. [3] For this reason I find him guilty on the second count. [ 3 ] Mr. Lackman formally admitted that he was driving the rented car at the time of the collision with the taxi driven by Mr. Valeus and that Mr. Valeaus suffered the injuries described in his testimony. [4] He admits that he drove away from the scene and that he offered no assistance to Mr. Valeus.

In his testimony, he also admits that in leaving the scene he had no intention of reporting the incident as it had occurred, which compels me to conclude that he left the scene with the intention to avoid liability. Thus, for all practical purposes, Mr. Lackman admits the essential elements of the offence charged in the first count. But he claims that he acted under duress. He says that he was forced was to drive by a man holding a knife to him before and after the collision.

The defence [ 4 ] Duress in our law is an excuse for the commission of a crime by a person under a severe threat of personal violence by another. When it applies it affords an acquittal even though it does not negate either the actus reus or the mens rea of the offence charged. [5] Like another excuse or justification in the criminal law, it cannot be considered unless there is a factual basis for it in the evidence before the court.

As the courts have said for some time, a claim of duress cannot be considered unless the evidence gives it an "air of reality." [6] If it does, it cannot only compel an acquittal if the evidence raises a reasonable doubt on the whole of the case. [ 5 ] The only question to resolve in this case is whether Mr. Lackman's evidence of duress raises a reasonable doubt on the whole of the case. Basic principles

[ 6 ] As there are conflicts in the evidence, I remind myself that I am not to choose between conflicting versions of events. The accused is presumed innocent and must be acquitted unless at the end of the case and on the whole of the evidence his guilt is proved beyond reasonable doubt. The accused has nothing to prove. If I believe his testimony, or if it raises a reasonable doubt, he must be acquitted. If I do not believe his testimony, or if it raises no reasonable doubt, he can only be found guilty if an assessment of the whole of the evidence proves his guilt beyond reasonable doubt.

If on the whole of the evidence there remains a reasonable doubt the accused must be acquitted. [7] [ 7 ] These principles are derived from the presumption of innocence, which ensures that no person may be found guilty unless the offence charged is proved beyond reasonable doubt.

Whether a reasonable doubt arises from the prosecution evidence, evidence led by the defence or an assessment of all of the evidence taken together, the accused must be acquitted if there remains a reasonable doubt on the whole of the evidence at the end of the case. [8] In this respect, the credibility of a witness is of central importance because if the testimony of a witness raises a reasonable doubt as to its reliability, it might as well raise a reasonable doubt with respect to an essential element of the offence or a matter of defence.

If there is a conflict in the evidence, the trier of fact is not obliged to make a choice in favour of one version or another.

This might well be the result in a given case if the judge is led to this conclusion by the force of the evidence, but conclusions of fact must always reflect an examination and evaluation of the whole of the evidence. [ 8 ] The Supreme Court has given guidance on these principles in W.(D.) [9] The Court has reiterated that the presumption of innocence and the assessment of evidence, including the credibility of witnesses, are not matters of form but of substance. [10] Whether a judge follows textually and schematically the criteria set out in W.(D.) or assesses them in some other manner, the presumption of innocence requires that there be a careful evaluation of all the evidence before the court determines whether the charge is proved or whether there remains a reasonable doubt. [ 9 ] W.(D.) does not impose a mechanical formula to be followed in the evaluation of evidence.

The Supreme Court has repeated this caution on several occasions. [11] This jurisprudence reminds us that the presumption of innocence requires the prosecution to prove the guilt of the accused beyond reasonable doubt. It lies with the trier of fact at the end of the trial to examine all of the evidence presented before the court and to evaluate it so as to determine whether the prosecution has discharged its burden.

The accused has nothing to prove and the prosecution is not required to prove guilt beyond all possible doubt but beyond all reasonable doubt. [12] If there remains a reasonable doubt at the end of the trial and after a careful examination of all of the evidence, including questions of credibility, the accused must be acquitted. It does not matter whether a reasonable doubt touches a matter of defence or an element of the offence. If a reasonable doubt subsists after an assessment of all the evidence, an acquittal is required. Undisputed facts [ 10 ] The undisputed facts can be stated briefly. At 02h40, Mr.

Lackman drove west on Sherbrooke Street, ran through a red light and collided with a taxi driven by Mr. Valeus. The collision caused serious bodily harm to Mr. Valeus. Immediately after the collision Mr. Lackman drove away from the scene and later abandoned the car. Mr. Lackman’s testimony [ 11 ] Mr. Lackman repeated his lie that the car was stolen to the rental company and to Sgt. Detective Sévigny.

It was a lie that he contrived by telling the rental company that the car was stolen, then obtaining the serial number of the car from that company, and in turn repeating the lie with the serial number first to Constable Beliesle and some weeks later to Sgt. Detective Sévigny. [13] Mr. Lackman's admission that he lied to Constable Belisle and others is a strong indication that his credibility as a witness is, to say the least, questionable. Another reason to doubt his credibility is that he admits that he was "tipsy" at the time of the events.

Indeed, in his testimony he asserts many times that he cannot remember relevant details. [14] A third reason to doubt his credibility is that his account is vague with respect to material particulars. These particulars include the description of the alleged assailant and words spoken by him. A fourth reason to doubt his credibility is that his testimony is contradicted in material particulars by other witnesses. Finally, although he bears no burden to prove anything or even to produce evidence, his testimony is the only evidence in defence. There is no obligation on Mr.

Lackman to corroborate his testimony in any way. It is simply a matter of fact that apart from his testimony there is no evidence to support Mr. Lackman's account of duress in the events of 11 January 2009. [ 12 ] Mr. Lackman testified that shortly before the collision he was abducted from the Cafeteria Club and forced at knife-point to drive. As already mentioned, he had consumed some alcohol was in some degree intoxicated. He said as well that he "might have smoked a joint." [15] Immediately after the collision, in which the airbags were activated, the assailant told him to keep driving.

He continued west to Atwater Avenue, turned right and parked on a street to the side of Atwater Avenue. There the assailant made a telephone call or several calls. [16] The assailant then got out of the car and left. [ 13 ] There is some evidence that Mr. Lackman has been the victim of several incidents of violence. There is evidence, which I accept, that he was kidnapped in 2008. There is no evidence that this incident is related to the events of 11 January 2009. In his testimony, Mr.

Lackman says that before and after those events he has been the victim of attempted extortion, extortion and assault. [17] Apart from the kidnapping in 2008, there is no other evidence of these incidents in which Mr. Lackman claims to have victimised. Throughout his testimony Mr. Lackman claims that he has lived with constant fear of victimisation by participants in some form of organised criminal activity. [ 14 ] There are only two grounds upon which Mr.

Lackman could claim that he should be acquitted: first, that I believe his testimony concerning the alleged duress or, second, that his testimony raises a reasonable doubt on that issue when considered with the whole of the evidence. Apart from that testimony, the elements of the two offences charged have been admitted. I do not believe Mr. Lackman's testimony and I am not left with a reasonable doubt by it. [ 15 ] It is possible that Mr. Lackman's account is true but a possibility is not a reasonable doubt.

A reasonable doubt must have not only an air of reality but it must force a court to conclude that on the whole of the evidence the guilt of the accused has not been proved beyond reasonable doubt. For the reasons given above in paragraph 11 Mr. Lackman's credibility – the ability of a court to believe him on his oath – is severely compromised. There are other reasons that lead me to conclude that Mr. Lackman's claim of duress does not

raise a reasonable doubt. [ 16 ] Mr. Lackman testified that the collision occurred in front of the Ritz-Carlton Hotel. He repeated this assertion. This is contradicted by several eyewitnesses who testified that the collision occurred at the intersection of Stanley Street and Sherbrooke Street. [18] [ 17 ] Those eyewitnesses testified that immediately after the collision Mr.

Lackman's car turned south on Stanley Street, entered a lane that connects to Peel Street, turned north on Peel Street and then west on Sherbrooke Street – thus completing a circle back to the scene of the collision and continuing past it toward the west. Mr. Lackman contradicted this evidence by denying that he circled back in this manner. He later allowed that he had no recollection of doing so. [19] I accept the evidence of the witnesses who said that he did. Their testimony was direct evidence that was precise in its details and unimpeached in any way. [ 18 ] Mr.

Lackman could not recall whether he went to the club with his girlfriend. Mr. Lackman testified that he could not remember whether he abandoned the rented car on St. Jacques Street or Notre-Dame Street. [20] He was also uncertain whether he took a taxi from the place where he abandoned the car. [21] [ 19 ] Mr. Lackman's testimony is vague with respect to important details that, if they were true, only he could have witnessed. With respect to details that were observed directly by other witnesses, his testimony is contradicted. In short, Mr.

Lackman's claim of duress on 11 January 2009 is unsupported by credible or reliable evidence. For this reason, it raises no reasonable doubt on the whole of the evidence. I repeat that apart from Mr. Lackman's testimony the remaining evidence proves the first count in the information beyond reasonable doubt. [ 20 ] Mr. Lackman testified that he was unwilling to report the collision immediately and that, when he did, he lied by saying that the car was stolen. This is an admission of a lack of credibility. It is also plainly evidence of an intention to avoid liability. [ 21 ] Mr.

Lackman's testimony was replete with accounts of intimidation and violence unrelated to the collision on 11 January 2009. While there is evidence that he was kidnapped in 2008, the other incidents related by him are unsubstantiated in any way. Perhaps his evidence of those incidents is true. Even if it is, it is in no way inconsistent with proof beyond reasonable doubt that on 11 January 2009 he collided with Mr. Valeus's car and left the scene with the intention to avoid liability. If Mr.

Lackman was the victim of incidents of intimidation and extortion on other occasions, this fact does not by itself increase the probability that he was the victim of threats leading to the collision at 02h40 on 11 January 2009. A final point [ 22 ] I come to the final point. Mr. Lackman is charged in the first count under section 252(1.2). This offence requires proof that he knew another person had been injured in the collision. It has been proved that Mr. Lackman's car struck that of Mr. Valeus on the driver's side. That car was destroyed. Although there is evidence that the airbags in Mr.

Lackman's car were deployed, there is also evidence that his car came to a momentary stop before he drove away. This escape required vision. It is inconceivable that Mr. Lackman was unaware before driving away that the collision would have caused bodily injury or, at the very least, it is an ineluctable inference that he was wilfully blind to this fact because he was aware of the powerful impact of the collision on the driver's side of Mr. Valeus's car. FOR THESE REASONS, Mr. Lackman is found guilty on both counts as charged. ____________________________________ PATRICK HEALY, J.C.Q.

M e Jacques Bélanger For the prosecution M e Manlio Del Negro For Mr. Lackman Dates of hearing: 23 October 2012; 19 February 2013; 12 September 2013.