2016 QCCQ 20394, 2016 QCCQ 20394

R. c. Isik 2016 QCCQ 20394 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ABITIBI TOWN OF MISTISSINI Criminal Division No: 640-01-029552-131 DATE: August 9, 2016 ______________________________________________________________________ BY THE HONOURABLE LUCILLE CHABOT, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN COMPLAINANT v. MARCEL ISIK ACCUSED ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr.

Marcel Isik stood trial for events that occurred on July 8, 2013. He faces six counts which are : 1. On or about July 8, 2013, in Waswanipi, district of Abitibi, did commit a sexual assault on M. R., committing thereby the indictable offence provided by section 271

(1) a) of the Criminal Code . 2. On or about July 8, 2013, in Waswanipi, district of Abitibi, did confine, imprison or forcibly seize M. R., committing thereby the indictable offence provided by section 279

(2) a) of the Criminal Code . 3. On or about July 8, 2013, in Waswanipi, district of Abitibi, did resist David Larivière a peace officer in the execution of his duty, committing thereby the indictable offence provided by

section 129

a) d) of the Criminal Code . 4. On or about July 8, 2013, in Waswanipi, district of Abitibi did carry a weapon concealed, to wit: Semi-automatic 9 mm, committing thereby the indictable offence provided by section 90

(2) a) of the Criminal Code . 5. On or about July 8, 2013, in Waswanipi, district of Abitibi, was an occupant of a motor vehicle in which he knew there was a firearm, a prohibited weapon, a restricted weapon, a prohibited device or prohibited ammunition, to wit: Semi-automatic 9 mm, committing thereby the indictable offence provided by section 94 (1)

(2) a) of the Criminal Code . 6. On or about July 8, 2013, did knowingly convey to M. R. a threat to cause death or bodily harm, committing thereby the indictable offence provided by

section 264.1 (1) a) (2)

a) of the Criminal Code . [ 2 ] At the outset of the trial, the defence informed the Court that the accused will enter a plea of guilt on count # 4. The prosecution has no evidence to offer on count # 5. After all evidence tendered on both sides, the defence admits that the prosecution has made out its case on count # 2. Thus, only counts # 1, # 3 and # 6, are challenged. M. R.: [ 3 ] M. R., the complainant, recounted the events that led to the current accusations. [ 4 ] On July 7, 2013, she returned home with her partner, Mr. J. B.. Mr.

Isik was outside of her brother-in-law’s house having a beer; they joined them. [ 5 ] Later, as they were short on beer, the accused proposed to the complainant and her partner to go to Desmaraisville. He would pay for a case of 36 cans and they would pay the taxi fare. On the way back, Mr. Isik invited them to his place to resume their drinking. [ 6 ] At a certain point, Mr. B., being jealous, punched Mrs. R. in the face and left. Mrs. R. decided to wait around ten minutes before going home to rejoin her boyfriend, hoping that he would have calmed down. [ 7 ] Mr.

Isik told her that she couldn’t leave because he wanted to have sex with her. He grabbed her and started to shove her towards the bed. She tried to struggle free. The Court understands that they were pushing back and forth and at one point, she fell on the bed. She was on her back, on the bed, and he began to pull off her shorts and underwear. He tried to touch her private parts. She

intensified her efforts to extricate herself from his grip. [ 8 ] At a certain point, he showed her a gun. She does not know where he took it from in the room, but he put it under the mattress. She was scared. The accused left the room. She took the gun and could feel that it was heavy, metallic. She described it as black and grey. She put it back under the mattress. She managed to retrieve part of her clothes and put them on. The accused came back into the room and she tried many times to escape. Mr. Isik turned away and headed for the washroom when she pushed him and, as a result, he fell into the bathtub.

She bolted out and ran as fast as she could. She fell on the stairs, lost her sandals in her haste to escape. He followed and jumped on her saying: “I will kill you!” She freed herself, ran, and not far from Mr. Isik’s house, encountered a patrolling police officer. She was brought to the police station where she gave two statements. [ 9 ] In cross-examination, she said that she started to drink with Mr. B. around 2 or 3 pm. She does not remember how many beers she had at Isik’s place, but specified that she did not drink as fast as Isik and B. did. She states that both the accused and Mr.

B. were drunk. [ 10 ] She denies that at a certain point during the evening, Mr. B. would have passed out. [ 11 ] As for the fact that there is no mention in her statement to the police that Mr. B. punched her, she declares having said it to the police officer and repeated it at the preliminary enquiry. She also mentions that she does not read English and that the statements were written in English.

As the defence was insistent on that fact, she finally mentions that it might be possible that she didn’t tell the police, but she does not seem very convinced of that. [ 12 ] At one point, there was a debate on an answer she would have given at the preliminary enquiry to the effect that she was seated on the bed when the accused removed her shorts. Both counsels requested a recess in order to listen to the recording of the preliminary enquiry, but never agreed on what was said. They asked the Court to listen to it in order to form its own opinion, which was done.

Unfortunately, as many people are all speaking at the same time, it is impossible to come to any conclusion about what was said. David Larivière: [ 13 ] Mr. David Larivière, police officer, was working the night shift when, around 4:20 a.m., he received a call from a colleague, Officer Longchap, who told him that when patrolling Waswanipi streets, she encountered a woman running barefoot, in shock. This woman kept yelling: “He has a gun!” [ 14 ] Mr. Larivière went to meet them. The woman was the complainant. She said: “He has a gun.

He wouldn’t let me leave.” [ 15 ] Officer Larivière noticed that she barely had any clothes on and no shoes even if the night was cold. [ 16 ] He brought her to the police station to take her statement. She stated that Marcel Isik showed her a gun, which looked real and was really heavy. [ 17 ] Officer Larivière then called to request backup to intervene at Isik’s place. It was around 5:00 a.m. [ 18 ] Mr. Larivière and one of his colleagues proceeded to locate Mr. Isik who was seen walking on the street. He had a hand in one of his pockets. The police decided to wait for backup. They went to Mr. Isik’s place.

Isik was standing on the balcony and when he saw the police, he came towards them. As they suspected that Mr. Isik was in possession of a gun, David Larivière ordered him to get on his knees. At the same time, the police officer also said: “I’m serious” and he put his hand on his gun. When asked to lie on his stomach, Mr. Isik didn’t comply. They had to wrestle him to the ground and then the firearm that Isik had fell on the ground. The accused also had some beer cans in his pockets. [ 19 ] About the firearm, he declared: “It belongs to my buddy”. [ 20 ] The police officer described the arrest of Mr.

Isik as a dynamic one because he was suspected of being in possession of a firearm. He told him: “You are under arrest.” At that moment, the accused asked why he was arrested and the police officer didn’t answer because he kept trying to look for the firearm and ensure the safety of the intervention. His rights were given right after, at the scene where he was arrested. [ 21 ] The police officer described the pistol as similar to a Beretta semi-automatic. There were no bullets in it. [ 22 ] In cross-examination, the officer specified that they retrieved the complainant’s sandals outside Mr. Isik’s place.

Marcel Isik: [ 23 ] Mr. Isik testified for his own defence. The testimony rendered was somewhat laborious because of his nervousness and his tendency to answer before the end of the questions. The Court had to intervene a few times on this point because of the importance of understanding fully the version of the accused. It is important to specify that the Court does not hold this against the accused. [ 24 ] The first part of the events related by the accused mostly matches the version given by the complainant. [ 25 ] Mr. Isik was at Ji. B.’s place where he had two beers. Mrs. R. and her partner, Mr. J.

B., arrived at their place, but they were stuck outside because they had no keys. Mr. Isik helped them and they had a couple of beers all together. [ 26 ] Mr. Isik stated that when Mrs. R. and Mr. B. arrived on the premises, they were already drunk. [ 27 ] Mr. Isik would have consumed a few beers with them before going to Desmaraisville. He invited Mrs. R. and Mr. J. B. to his place where they continued to drink in Isik’s bedroom, which is in itself an unusual place to gather.

[ 28 ] During the evening, B. passed out as he was lying on the bed. Isik would have had oral sex with Mrs. R. on the same bed. He specified that Mrs. R. was pretty drunk. They would have pushed B. to the edge of the bed in order to make room for themselves. [ 29 ] As J. B. started to wake up, Isik took his pants, grabbed a beer, fled the bedroom and sat at the kitchen table. [ 30 ] He heard the noise of a punch and Mrs. R. crying.

He says that he ran back to see what was going on. [1] [ 31 ] They started drinking again for about 30 minutes before B. passed out again. [ 32 ] Isik and R. resumed their sexual activity on the same bed where B. was still lying. [ 33 ] The accused said: “After that, J. woke up again. He started to hit her again and then I told them ‘You guys are going to have to go home’.” [2] But later said that he took off again into the kitchen before the punch. [ 34 ] He says that Mrs. R. didn’t want to leave then. Both kept on drinking after the departure of Mr. B.. Mr.

Isik adds that she wanted to go home but he told her to stay to prevent further violence from Mr. B.. [3] [ 35 ] He says that they were sitting on the same bed when she pushed him for absolutely no reason. [ 36 ] When she left, Mr. Isik was angry and shouted names at her. He denies having threatened her. [ 37 ] In cross-examination, the answers given by the accused are much more confused. [ 38 ] Just trying to know how many beers he had was an arduous exercise. First, he said that on the 36 cans, he had four.

But, when calculations were done, he ended up having had eight of them [4] . [ 39 ] The first time B. woke up, Mrs. R. would have stayed in the room half naked. It is strange that the three of them resumed their drinking in the room when she was wearing no clothes from the waist down, and that nothing was said or done about that. [ 40 ] B. passed out again for a period of about an hour. [ 41 ] When the prosecution asked Mr.

Isik: “And then, you were there when he hit her a second time?”, “Yes” was the answer. [5] Later, he said that he wasn’t there because he took off again. [6] After that, he seemed confused, as if he had just realized that they were speaking of the second incident involving a punch to Mrs. R., but speaking about the first or the second he finishes saying that he hadn’t seen any of them even if he had said yes before. [ 42 ] He then told them to leave [7] and Mrs. R. insisted on staying [8] . Before she left, he gently grabbed her by the arms to prevent her from leaving, and this for her own safety.

As there was beer on the floor, they slipped and fell together on the bed. He says that he grabbed her to make her stay. While on the bed, they drank another beer. [9] It lasted about 30 minutes. [ 43 ] After, she just pushed him, ran off and left the premises. [10] He opened the door shouting names at her. As he did not see her outside, he concluded that she must have run away. It was daylight outside. [ 44 ] Isik admits that he had a handgun at his place which was left by a friend about ten days before. The friend also left a certain quantity of cannabis. [ 45 ] As soon as questions are asked to Mr.

Isik about the gun, he declares that: “It’s not real is it, it’s just a toy gun.” [11] He later says that he does not even know himself if it is a real one. [12] Confronted with the version of Mrs. R. saying that he showed her the gun and put it under the mattress, he answered: “Well I guess if she seen it, I guess she must have seen in (sic).” [13] , adding that he did not hide it and it was just on top of a box.

Later, the prosecution asked: “Why did you get it out that evening with J.?” And the accused answered: “I don’t know… I don’t know.” [14] [ 46 ] The prosecution continued asking: “But there must be a reason why you took it out. Why, why took a weapon out, show it to her that particular evening?” And the accused answered: “Why not, I showed it to friends you know before you know, people see that.” [15] [ 47 ] When saying that he didn’t know that it was a real gun, he added that a person would have told him that it was shooting blanks. [ 48 ] When the friend left the handgun, Mr.

Isik never asked if it was a real one or not. Because he has manipulated it, he knew that it was heavy and made of metal. [16] [ 49 ] He never asked the friend why the handgun was left behind a safe in the closet at his place. He said that this friend came back at some point to retrieve the cannabis and showed the gun to other people. At that time, Mr. Isik, told his friend that the gun had been moved on top of a cupboard in the bathroom. So, Mr. Isik manipulated the gun because the first time it was left behind a safe. [ 50 ] He was in possession of the gun when he was arrested.

He says that he decided to bring it back to his friend. When asked why particularly that day at or around 5:00 a.m., he had no real reason to give. [ 51 ] When he was arrested, the handgun fell on the ground and Mr. Isik tried to step on it to hide it. [17] [ 52 ] When Mrs. R. left, he admitted being pissed off. [ 53 ] The prosecution asked: “You heard the testimony of Mrs. R. saying that you threatened her?” Mr. Isik answered: “This is what I don’t understand, how I did… and the worse part was I was trying to take off her panties, you know.

I don’t remember trying to take off her panties .” [18] Asked to repeat, he said: ”I don’t remember trying to take that off.” [19]

DECISION: [ 54 ] As it was said numerous times by appeal courts, a trial is not a “credibility contest” and the Court, to give full meaning to the principle of presumption of innocence, must first assess the version of the accused. If his version is believed by the Court, Mr. Isik must be acquitted. If the version given is not believed by the Court, but if the Court is left with a doubt after having assessed his version in regard to the whole evidence, here again, he must be acquitted.

If the Court is not left with such a doubt by the accused’s version, then the evidence tendered by the prosecution must demonstrate the culpability of the accused beyond a reasonable doubt. [ 55 ] The Court cannot give credit to the version given by Mr. Isik because there were too many contradictions, and peculiar explanations. [ 56 ] For instance, the state of Mrs. R. as described by Mr. Isik.

If she was already drunk at the end of the afternoon when they first met, and if she kept drinking until she left at daybreak, the Court is not convinced that there was a legally valid consent to the sexual activity, if there was such consensual activities as stated by Mr. Isik. [ 57 ] Moreover, the Court does not believe that the events occurred as related by Mr. Isik. [ 58 ] Why drink in the room when there was a kitchen table and chairs? [ 59 ] Is it credible that they would have had sexual activities twice on the bed where Mr.

B. was lying? [ 60 ] After having received the first punch, R. would just resume sexual activity without fear of reawakening B. and risking to incur violence again? [ 61 ] Is it credible that between the first punch and the second time B. passed out, all of them just continued to drink with Mrs. R. half naked?

We have to remember that B. was described by Isik as a jealous and violent man. [ 62 ] There also were contradictory answers about seeing or not the second punch. [ 63 ] How can we reconcile the fact that he asked them to leave after the second punch and the fact that he tried to convince her to stay for her own safety? [ 64 ] The Court does not believe that he would “gently” grab her in order to prevent her from leaving for her own safety. [ 65 ] As for the handgun, it is unbelievable that after being manipulated by the accused, that he thought it was a toy.

The weight of a gun and the weight of a toy are not the same. [ 66 ] If he didn’t show her the gun, how come she knew he had it? The explanation given that it was on top of a box does not match with the fact that it was first hidden behind a safe in the closet and then on top of a cupboard. It was clearly meant to hide it.

Why, if it was necessary to hide it the previous days, was it negligently put on top of a box that night? [ 67 ] Why, at 5:00 a.m. that same morning, did he decide to bring it back to his friend? [ 68 ] If he thought it was a toy, why try to hide it when it fell on the ground during the police intervention? [ 69 ] The accused also never denied R.’s version that he took off her shorts.

He just said that he does not remember. [ 70 ] He tried to downplay his alcohol intake and kept giving confusing answers until the prosecution made the calculation with him. [ 71 ] The accused denied the threat, but we know that he was angry and the Court believes that the firearm was shown. The Court cannot take for truth the denegation of the accused because his testimony as a whole cannot be seen as candid, truthful and reliable. [ 72 ] As for obstructing a police officer in the execution of his duty, the only explanation given is that he was not informed right away of the motives of his arrest.

He never denied the evidence provided by Officer Larivière. [ 73 ] We have to keep in mind that the police was there to arrest someone who might carry a firearm. Safety is the first measure to be taken by police in such a situation. To immobilize the person, retrieve the firearm and remove it from the suspect. [ 74 ] In short, the Court does not believe the accused and is not left with an iota of doubt by his version. [ 75 ] Has the Crown fulfilled its burden? [ 76 ] We have to keep in mind that to say that the accused is possibly or even probably guilty is not enough.

It does not respect the standard of proof required. Evidence beyond any reasonable doubt lies far closer to absolute certainty than to a balance of probabilities. Evidence beyond any reasonable doubt is not an absolute certainty. Reasonable doubt must be based upon reason and common sense and it must be logically connected to the evidence or the lack of evidence. [ 77 ] The Court has to assess the complainant’s credibility and the reliability of her testimony. She testified in a straightforward manner and mainly remained steadfast in her version. When she didn’t remember, she just admitted it.

There were no real contradictions in the facts recounted to the Court. She described the event in a consistent manner. [ 78 ] The only time it was tried to put her in contradiction was about the fact that she would not have said to the police officer that B. punched her. She stated that she believed that she had said it, but couldn’t read the statement as it was written in English. Mrs. R. testified in French at the trial.

[ 79 ] It would have been possible for the defence to ask the police officer who had received this statement, Officer Larivière, who was present in court for the entire trial to take the stand. [ 80 ] The version given by the accused about having oral sex twice on the same bed as Mr.

B. was never put forward in cross- examination of the complainant. [ 81 ] The following facts can also give credit to her version : ▪ The fact that she lost her sandals and that they were retrieved outside Isik’s house; ▪ The state she was in when she encountered the patrolling police officer; ▪ The fact that she was running barefoot on a street with a panic stricken demeanour; ▪ The fact that she described a firearm and the description tallies with the handgun retrieved in Mr.

Isik’s possession; [ 82 ] The Court never sensed that she tried to exaggerate the facts related about the accused’s behaviour. [ 83 ] As for the evidence rendered by Officer Larivière, his version of the events both about the state of the complainant and the facts surrounding the arrest were not challenged and were never contradicted. [ 84 ] Therefore, the Court declares the accused guilty on counts # 1, # 2, # 3 and # 6. [ 85 ] As for count # 2, the defence already admitted that the burden of evidence was fulfilled. [ 86 ] The Court will proceed with receiving the plea of guilt on count # 4 and thereafter will take notice of the prosecution’s declaration about count # 5. __________________________________ LUCILLE CHABOT, J.C.Q.

Mtre. Christian Leblanc Attorney for the prosecution Mtre. Ratha Heang Attorney for the accused Date of hearing: June 7, 2016