r v. Howard BRETTSCHNEIDER, 2018 QCCQ 4779

R. c. Brettschneider 2018 QCCQ 4779 JT1383 COURT OF QUÉBEC CANADA PROVINCEOFE QUÉBEC DISTRICT OF MONTRÉAL Criminal Division N° : 500-01-128303-150 DATE : July 9, 2018 ______________________________________________________________________ PRESIDING : THE HONOURABLE CHRISTIAN M. TREMBLAY, Q.C.J. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

Howard BRETTSCHNEIDER Accused ______________________________________________________________________ WRITTEN VERSION OF THE JUDGMENT RENDERED VERBALLY ON MAY 14, 2018 [1] ______________________________________________________________________ A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code , concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. [ 1 ] The accused is charged with sexual interference (s. 151

b) Cr. C.) and sexual assault (s. 271b) Cr. C.). [ 2 ] The alleged victim is a young girl. She was nine years old at that time. Her parents were the tenants of the accused. [ 3 ] The incident would have occurred on October 6, 2015 when the accused came to the apartment to carry out necessary repairs. [ 4 ] For the purposes of the trial, both parties agreed to the following admissions: That the identification of the accused is not challenged; For cross-examination purposes, that the video footage of the interrogation of Mr.

Howard Brettschneider by detective-sergeant Christine Deraiche (mat. [...]) on the 26 th of October 2015 as (sic) been made freely and voluntarily, in compliance with the constitutional rights of the accused; That the audio recording of a message left by the accused on the plaintive’s (sic) answering machine may be filed without requesting the presence of any other witness. The pictures of Mrs E. A.’s cellphone, including the list of the ingoing and outgoing calls for the 6 th of October 2015; That the alleged victim (

X) called her mother (E. A.) on her cellphone at 4:34 PM and at 4:58 PM on the 6 th of October 2015; That Mrs A. tried to call back her daughter between 5:05 and 5:06 PM; That Mrs A. called her husband, Mr. Y. K., at 5:08 PM; That Mr. K. called Mrs A. back on her cellphone at 5:21 PM. [ 5 ] The accused recognizes he kissed the young girl on the lips but it was not at his initiative. It was the kid’s initiative and he did not expect such behaviour. In other words, there was no sexual background behind that kiss.

[ 6 ] The accused denied having done other gestures of a sexual purpose. He denied having touched the young girl except for hugs. [ 7 ] The issue of this case is based primarily on the credibility and reliability of witnesses. It is clearly a question of facts. [ 8 ] X gave her version of the facts to the police two days after the alleged offence. The video tape made has been declared admissible in evidence (s. 715.1 Cr. C. ) [2] . [ 9 ] Y. K. and E. A. have three kids. X is the older. [ 10 ] Since September 2012, the accused was the landlord of an apartment rented by Mr.

K. and Mrs A. (exhibit D-2). [ 11 ] Because Mrs A. was pregnant and she wanted to take a maternity leave of 10 months, the accused reduced the rent from 1 525$ to 1 450$ and he maintained the responsibility to pay the electricity (see annex of D-2: Special considerations applicable to lease number #1854370 ). [ 12 ] Before October 6, 2015, the relationship between the accused and the K.’s family was good. The kids called the accused “Uncle Howard”. They were familiar with him. The accused played with them.

Sometimes, the accused shared a meal with the family. [ 13 ] On October 6, 2015, at the end of the school day, children returned at home while waiting for their parents. Mrs. A. was returning from school. She was accompanied by the youngest one. Mr. K. was also on his way home after work. [ 14 ] X called her mother at 4:34 pm to confirm she was at home with her sisters. [ 15 ] When she was doing her homeworks, the accused arrived at the apartment. He asked her sisters for screws [3] to fix the doorbell. They did not know about it. Then, he asked to talk to X.

She said may be her parents put away the screws. [ 16 ] Suddenly, he changed the subject. He said to X if she was 20 years old, he would have married her. Then, he started to kiss her on her mouth. She said his lips were around her mouth. [ 17 ] She tried to leave but he held her firmly. She noticed his hands were wide and dirty. [ 18 ] X smelled of alcohol. She knows the accused drinks several beers. [ 19 ] When he gave her hug, he touched her buttocks with his hands.

He also gave her kisses in the neck. [ 20 ] The accused told her he loved her and that she will become a great star. [ 21 ] When she asked him if she can leave, because she wanted to continue to do her home works, the accused asked for a last kiss. She refused and he let her go. [ 22 ] Before she leaves, he told her it is their little secret. She said yes and left quickly. [ 23 ] He kissed her six times.

Three times before he touched her buttocks and three times after. [ 24 ] She asked him why he gave her kisses and asked him to stop. [ 25 ] At an undetermined moment, the accused stretched her pants to look inside. He wanted to look at his belly because he said she ate too much. She went in her sisters’ bedroom to replace her pants and he joined her and do it again. He saw her underwear. [ 26 ] As soon as she can, X went in her mother’s bedroom to call Mrs A.. She told her mother what happened. She cried. [ 27 ] Mrs A. confirmed she received a phone call of X at 4:58 p.m. The child was crying.

She asked her mother to promise not tell anyone what she wanted to reveal to her. X said: “Mommy, uncle Howard just kissed me, touched by breast, touched my butt”. [ 28 ] She said the accused was no longer with her. [ 29 ] Mrs A. gave instructions to her daughter and reassured her she will be home soon. [ 30 ] X went in the basement to tell her sisters what happened. [ 31 ] Mrs A. tried to call back her daughter between 5:05 and 5:06 p.m. [ 32 ] When Mr. K. arrived, he found X lying on the couch.

She said she wanted to talk to him. [ 33 ] They went upstairs in his bedroom and X told him: “Uncle Howard kissed me on my lips, touched my butts and said my breast were cute”. He also told her not to tell anybody; it was their little secret. [ 34 ] X was crying. She was scared. He took her in his arms and he comforted her. [ 35 ] At 5:08 p.m., Mrs A. called her husband. She asked him if X did tell him what happened. He said yes. He also said X ran to him immediately when he walked into the house. She was crying. [ 36 ] At 5:21 p.m., Mr. K. called Mrs A..

She told him she was stuck in traffic. [ 37 ] After a few minutes, the accused came back. He was working outside on the door and he entered into the house.

[ 38 ] Then, X became scared and she went back into her parents’ room and hid behind the bed. He shut the door of the bedroom and went to meet the accused. [ 39 ] They had a discussion concerning the job the accused was doing and the accused asked again for a screw. [ 40 ] X affirmed the accused took a look in the bedroom where she was hidden. [ 41 ] A few minutes later, the accused came back again. Mr. K. was in the kitchen. The accused asked for his glasses. They had a discussion about it. [ 42 ] When the accused was in the kitchen, Mr.

K. was close enough to notice the accused’s breath smelled of alcohol. [ 43 ] The accused came back a third time and then he asked to go into Mr. K.’s bedroom because he wanted to fix something. Mr. K.’s refused because the timing was not good. He was cooking. [ 44 ] When Mrs A. got home, she parked the car in the driveway, even if she was not allowed to do so. She rushed out of the car with her son. Then, she saw the accused coming out from her apartment building. She met him on the stairs. She was very furious and very upset. [ 45 ] When he passed by her, he was not stable. He smelled of alcohol.

He was wobbling when he was going down the stairs. [ 46 ] When he saw her, he said: “Oh, Mrs E., you look upset. Are you okay?” [ 47 ] She told him: “You don’t talk to me. I don’t want to talk to you. I’m not in the mood to talk to you right now”. And she walked next to him and went straight to her apartment. [ 48 ] Her daughter was with her dad in the bedroom.

She was still crying, holding her hand and trembling. [ 49 ] Mrs A. told her husband she saw the accused outside and he tried to talk to her but she turned him down. [ 50 ] X told her mother what happened. [ 51 ] Because her car was not parked at the right place, Mrs A. got out and she saw the accused leaving in his car. [ 52 ] After Mr. K. called the police, the accused tried to call them. Finally, he left a message for Mr. K.. He said he saw Mrs A. outside and she looked very upset.

He wanted to know if everything was okay. [ 53 ] After the incident, they never talked with the accused. [ 54 ] X was always afraid when the accused was coming around the building. She did not want to hear the name of the accused. [ 55 ] Because X was uncomfortable, they wanted to leave. They received information from the Rental Board, but X’s therapist told them not to leave the apartment until she is able to overcome her fear from the house. [ 56 ] After his tenants refused a rent increase, the accused asked the Rental Board to determine the rent.

On May 25, 2017, the Rental Board rendered a decision (exhibit D-3). Since July 1 st , 2016, the rent was 1525$ per month. [ 57 ] On July 25, 2017, Mr. K. and Mrs A. obtained an attestation from a public officer pursuant to

article 1974.1 of the Civil Code (exhibit D-1b). The same day, they signed a Notice to the accused informing him about the resolution of the lease (exhibit D-1a)). [ 58 ] The accused has a different version of the facts. It can be summarized as follows: [ 59 ] The building is a four plex with a common entry for the two upper apartments and the seven lower apartments each having their own door. Mr. K.’s family was living in one of the two upper apartments. [ 60 ] The lease began on October 1 st for a duration of 21 months until June 30 th , 2014.

For the first year, the accused reduced the rent from 1 525$ to 1 450$ because Mr. K.’s budget was tight. The accused also accepted to pay Hydro’s bills for 21 months. There would be adjustments annually. [ 61 ] Every month, the accused was there to collect the rent as well as two or three times a month for cleaning up around the grounds, odd jobs, etc. [ 62 ] Initially, their relationship was very good; they invited him to a BBQ. [ 63 ] He always had a good relation with kids; they were friendly with him; they called him “uncle Howard”. They regularly gave him a hug.

Sometimes he kissed the kids on the cheek or the top of the head and they did the same things with him. [ 64 ] With Mr. K., initially the relationship was good but it started to become strained a little bit further into the tenancy. He had frequent little issues with Mr. K. concerning the respect of the by-laws. The relation was gradually degrading slowly. [ 65 ] The accused had cordial relations with Mr. K’s wife. [ 66 ] In 2015, the accused made some repairs to the building. From spring to fall 2015, the accused was there at least four days every week because he had a lot of things to do.

[ 67 ] The accused blamed them at a certain time for the conditions of the apartment. [ 68 ] The accused spent money for damage they caused. [ 69 ] They had difficulties to respect the by-laws. [ 70 ] The day of the incident, the accused arrived there at about 9:00 to make repairs to the ceiling of both garages. [ 71 ] The accused was working in the garage when Mr. K. came. He did not go to the apartment before Mr. K. arrived even if he heard the kids coming back from school. [ 72 ] When the accused saw Mr.

K., he asked him if he could come to repair the doorbell and mouldings. [ 73 ] When the accused came to the apartment, the kids opened the door. They were very friendly with him, as usual; they gave him a hug. [ 74 ] He called X and she came with the doorbell but without the screws. [ 75 ] The accused asked for the screws and she said she could not find it; then he asked Mr. K. for the screws but he did not know where they were. [ 76 ] The accused did not repair the doorbell because they did not have the screws. [ 77 ] Mr.

K. showed him a broken fence. [ 78 ] The accused stayed in the apartment for about 20 to 30 minutes. [ 79 ] X came to talk to the accused a couple of times, watching him when he was working. [ 80 ] Once, X hugged the accused; the other kids did the same thing and they went away. [ 81 ] X was talking to the accused. At one point, he gave her a kiss on the top of her head and then X talked to him a little bit more and she opened her arms to give him a hug; she said she was going to do her homework. He opened his arms and she kissed him right on the lips.

He was really taken back; he found that strange. [ 82 ] X left and she came back; they had a very short conversation about some boys at school. [ 83 ] Her father was in the kitchen; he was cooking. [ 84 ] The accused talked with Mr. K. maybe for a total of 5 minutes. [ 85 ] Mr.

K. was on his cell phone at least two times. [ 86 ] X came back and tried to kiss the accused, but this time he moved a little bit and the kiss ended up on the cheek. [ 87 ] At this point, the accused left the apartment and put all his tools in the garage. [ 88 ] Around 5 or 10 minutes after he left, he was coming up in the driveway when he saw Mrs A.; she parked her car at a place she was not supposed to and he tried to mention to her it was not correct. But they did not say anything. When Mrs A. got out of her vehicle, she looked like she was in a very bad mood. She seemed upset.

She took the child and slammed the door of her car. The accused made a comment concerning the parking and she said: “I have no time to talk to you right now”. [ 89 ] When the accused was in his car, he tried to call Mr. K.; he left a message concerning Mrs A. because he saw she was in a pretty bad mood. On the message he left he said: “Be nice with her…”. [ 90 ] The accused went home; ate quickly; went to the gym. [ 91 ] A couple of days later, the accused received a call from detective Deraiche. [ 92 ] He admitted he drank two beers at lunch time, and one hour later he opened a third one, but he only drank half.

In October 2015, he had a couple of beers pretty much every day. [ 93 ] He denied having touched X. [ 94 ] He never made a comment about her breast. [ 95 ] He met detective Deraiche few days after the event. He stayed detained over five hours. [ 96 ] With alcohol he talks a bit more. He is very people oriented.

[ 97 ] The accused recognized at that moment he did not have any issues or problems with the family. [ 98 ] He also recognized Mr. K. offered him to review his curriculum vitae and helped him to find a job because at that time he did have a job.

It was before the event. [ 99 ] During his cross-examination, the accused revealed more details about the relevant facts and a different sequence of the events. [ 100 ] When he was doing some work X came in and she talked to him, than she left and gave him a hug; he then kissed her on the top of her head. [ 101 ] He asked her for the doorbell and the screws for the doorbell. She went back 2 minutes afterwards; she could not find the screws for the doorbell. [ 102 ] He asked her to go and ask her father for the screws.

Maybe about 5 minutes later, she came back without the screws. [ 103 ] After X talked to him about the boys at school, he gave her a hug and kiss her on the top of the head. Then, he continued with his work. He does not recall why he gave her a hug at that moment and a kiss on the forehead. [ 104 ] Before she left to do her home works, she kissed him on the lips. He was going to give her a hug and she kissed him on the lips. He found it strange. It was the first time she kissed him on the lips. It was a bit of a shock for him.

He was in the entrance of the apartment. [ 105 ] The father was in the kitchen at that moment. The father was at a distance of 20-25 feet from them. He did not talk to the father. [ 106 ] He continued to do his work. X left and went downstairs. [ 107 ] After five minutes, she came back and they talked together. [ 108 ] When he was leaving, she gave him a hug and she tried to kiss him a second time. He avoid the direct contact with the lips by turning his face a little bit. She kissed him on the cheek. Basic principles [ 109 ] At this stage it is important to remember the basic principles of a criminal trial.

This exercise had been made by Justice Healy in The Queen v. Zoumpoulias , 2014 QCCQ 2159 at par [2] , [3], [4] and [5]. Justice Healy writes: [2] In view of conflicts and contradictions in the evidence, a brief restatement of basic principles is appropriate before undertaking a review and assessment of the evidence. [3] The presumption of innocence 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. 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. [4] The Supreme Court has given guidance on these principles in W.(D.) . 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.

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. [5] 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.

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.

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. [References omitted] Essential element of the two offences [ 110 ] Concerning the first count, sexual interference,

Section 151

b) of Criminal Code stipulates: Every person who, for a sexual purpose, invites, counsels or inciters a person under the age of 16 years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of 16 years, (

b) is guilty of an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days.

[111] Consequently, the Crown must prove, beyond reasonable doubt, the following essential elements: 1) that X was less than 16 years old at the time; 2) that the accused intentionally touched X, either directly or indirectly, and 3) that the touching was for sexual purpose. [112] The second count is sexual assault.

Section 271 (

b) of the Criminal Code says: Everyone who commits a sexual assault is guilty of (

b) an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than 18 months or, if thecomplainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimumpunishment of imprisonment for a term of six months. [113] The definition of an assault is precised at Section 265 (1) (

a) of the Criminal Code: A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directlyor indirectly. [114] Paragraph (2) stipulates: This

section applies to all forms of assault, including sexual assault, (…) [115] For this offence, the Crown must prove, beyond reasonable doubt, each of the following essential elements of the offence[4]: 1. that the accused touched X directly or indirectly; 2. that the touching by the accused was intentional; 3. that X did not consent to the touching by the accused; 4. that the touching by the accused took place in circumstances of a sexual nature. [116] It is also important to mention consent is not a defence for these offences when the person is under the age of 16 years: (section150.1

(1) Cr. C.). Credibility and reliability [117] Considering the conflict between the version of Crown’s witnesses and the version of the accused it is very important to evaluatethe credibility and reliability of witnesses. [118] The credibility of a witness relates to the witness sincerity that is, a willingness to tell the truth as the witness believes to be. [119] The reliability of the witnesses’ testimonies concerned with the accuracy (exactitude-precision) and the witness’s ability toaccurately observe, recall and recount the events in issue. [120] I refer here to White v. The King[5], Sutton c. R.[6], R. v.

Sanichar[7], R. v. Morrissey[8]. [121] Few words about the value of the testimony rendered by a child. [122] The Supreme Court of Canada in R. v. W. (R.)[9], explained clearly how a trial judge should evaluate the testimony of a child: 23. Before turning to the particular errors alleged, I pause to consider the general question of how courts should approach the evidenceof young children. The law affecting the evidence of children has undergone two major changes in recent years.

The first is removal ofthe notion, found at common law and codified in legislation, that the evidence of children was inherently unreliable and therefore to betreated with special caution. Thus, for example, the requirement that a child's evidence be corroborated has been removed: s. 586 of theCriminal Code, R.S.C. 1970, c. C-34, which prohibited the conviction of a person on the uncorroborated evidence of a child testifyingunsworn, was repealed by

An Act to amend the Criminal Code and the Canada Evidence Act, S.C. 1987, c. 24, s. 15, effective January 1,1988. Similar provisions of the Canada Evidence Act, R.S.C. 1970, c. E-10, and Young Offenders Act, S.C. 1980-81-82-83, c. 110, havealso been eliminated. The repeal of provisions creating a legal requirement that children's evidence be corroborated does not prevent thejudge or jury from treating a child’s evidence with caution where such caution is merited in the circumstances of the case.

But it doesrevoke the assumption formerly applied to all evidence of children, often unjustly, that children’s evidence is always less reliable thanthe evidence of adults. So if a court proceeds to discount a child’s evidence automatically, without regard to the circumstances of theparticular case, it will have fallen into an error. 24. The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may bewrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives ofchildren.

Since children may experience the world differently from adults, it is hardly surprising that details important to adults, liketime and place, may be missing from their recollection. Wilson J. recognized this in R. v. B. (G.), (SCC), [1990] 2

S.C.R. 30, at pp. 54-55, when, in referring to submissions regarding the court of appeal judge's treatment of the evidence of the complainant, she said that it seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults.

However, this is not to say that the courts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well founded and his comments entirely appropriate.

While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development.

The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children. 25. As Wilson J. emphasized in B. (G.) , these changes in the way the courts look at the evidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases.

Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child.

What the changes do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a "common sense" basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case. [ 123 ] The Court will examine first the accused version of facts. [ 124 ] When the accused met the police, three weeks after the events, he said he did not recall exactly what happened. In cross- examination he tried to qualify this statement. He said he did not remember every micro detail.

But he remembered the overall gist of what happened. [ 125 ] This precision had not been done in his declaration to the police. [ 126 ] During the cross-examination, he recognized he never mentioned in his declaration given to the police X tried to kiss him on the lips when he left the apartment. [ 127 ] When the police asked him: “You gave her a kiss?”, he answered: “Okay, that we kissed each other then.”. [ 128 ] In the declaration given to the police he admitted it is possible he said to X if she was 20 years old, he would marry her. [ 129 ] He also said to the police he did not remember having touched X’s bump.

During the cross-examination, he said if he does not remember such an event, it is because the event never happened. [ 130 ] At the end of the interrogation he said to the detective-sergeant that he was sure he drank too much if it happened. [ 131 ] If we examine the version of the accused in the context of all the evidence, his version of facts is an improbable story. [ 132 ] The accused confirmed Mrs A. was out of her when she arrived. She was furious. She refused to talk with him. [ 133 ] The only explanation obtained for her behavior is what X told her on the phone.

Of course, the conversation is hearsay, but it could explained the reasons why Mrs A. was so fusions, so upset. No other explanations have been advanced by the defence. This conversation occurred at 4:58 PM. According to the accused, Mr. K. was at home. The father was in the kitchen. Why X would have called her mother to tell such a story while her father was in the house? Why X would have complained to her mother at 4:58 PM about the behavior of the accused and around 5:30 PM would have tried to kiss a second time the accused. I presume it was around 5:30 PM because at 5:21 PM Mrs A. was stuck in the traffic.

Necessarily, the accused meet Mrs A. in the parking after 5:21. [ 134 ] Imagine another hypothesis. If Mr. K. was not still arrived at home at 4:58 PM when X called her mother, why would she tell this story to her mother if the accused did not go to the apartment when the girls were alone as he testified. [ 135 ] No serious explanations have been put forward to convince the Court, that X invented this story. [ 136 ] When he affirmed he had issues with Mr. K. it is very hard to believe since Mr. K. tried to help him to get a job. [ 137 ] The accused testified he was surprised by X’s kiss. He found it strange.

It was unusual for him. So, why he gave a second occasion to X to kiss him again? Would it not had been more careful not accept another hug from the young girl before he left? [ 138 ] If X took the initiative to kiss him, then why did she call her mother to complaint about the accused’s behaviour. It is not logical and no explanation had been advanced for such a big lie. [ 139 ] The Court has the conviction the accused did not tell the truth. His version is not credible.

It is not what happened. [ 140 ] The Court also considers the explanation offered by the accused for the inconsistencies with the prior statement he gave to the police. The explanation is a pretext to attenuate what he really said. [ 141 ] Now, let us have a look at X’s version of facts. [ 142 ] X’s testimony is credible and reliable. During the trial, her version of facts was quite similar to the video declaration of October 8, 2015 (exhibit P-10). Her recollection of facts was very good.

[ 143 ] During the cross-examination she did not contradict herself. She stayed constant. [ 144 ] She gave enough details like: - He put his lips over her mouth; - His hands were dirty; - He kissed her six times; - He smelled of alcohol. [ 145 ] The accused corroborated certain aspects of her testimony: - He drank beers; - If she was 20 years old, he would marry her. [ 146 ] In his declaration to the police, the accused did not deny having touched X’s buttocks. [ 147 ] The Court considers X told the truth. [ 148 ] Concerning Mr. K. and Mrs A., they are also credible. The appeared sincere.

Their testimonies were specific. [ 149 ] The accused confirmed Mrs A. was upset when she arrived at home. And we know why she was in a bad mood. [ 150 ] Both confirmed X cried, she was shocked and afraid. [ 151 ] If they did not leave the apartment after the event, it is because X’s therapist told them it was not appropriate for the young girl. It is an explanation which is difficult for the Court to challenge. [ 152 ] May be the reaction of the father when the accused came back to the apartment after X told him what happened is curious. He should have been furious and let the accused see it.

But we do not know how he feel about the accused because the examination and the cross-examination did not address this issue. It is also possible Mr. K. decided to avoid a conflict with the accused who had been drinking. [ 153 ] The defence submitted the Court should not trust their version of facts because there were some issue between them and the accused regarding the apartment. This claim has no value because the accused admitted himself there was no issue with Mr. K. and his wife on October 6, 2015. The suit before the Rental Board occurred in 2016 and the decision in 2017.

Mr K. and his wife did not call the police after an issue occurred concerning the rent. [ 154 ] All relevant facts occurred many months before the accused had issues with his tenants. [ 155 ] Even if the Court should have been concerned by these issues, it does not concern X. There is no evidence to conclude the young girl have been manipulated by her parents. This is pure fiction of the sprit.

Proof of essential elements [ 156 ] Did the Crown proof, beyond reasonable doubt the essential elements of offences? [ 157 ] Let start with the first count: Sexual interference. [ 158 ] It is admitted X was less than 16 years old at the time of the events. [ 159 ] The evidence shows the accused intentionally touched X. He kissed her on her mouth, six times. He gave her a hug and he touched her buttocks. He also kissed her in the neck and he stretched her pants to look inside. It is not because X was hesitant about the kind of pants she wore and finally affirmed it was a jeans, her credibility is affected.

It is normal not to recall such a detail. [ 160 ] Did he touch her breast? X did not testified about it. She did not confirm that. This affirmation comes from Mrs A. and should be considered as hearsay. [ 161 ] The last element is: Was the touching for sexual purpose? The answer is yes. [ 162 ] The accused told her he would have married her if she was 20 years old. He also said he loved her and she will be a star. He kissed her six times.

When she escapes from him he said: it is their little secret. [ 163 ] There is no doubt about the sexual conduct. [ 164 ] Concerning the second count it is already established the accused touched X directly. [ 165 ] The touching was intentional as explained previously. [ 166 ] X never accepted to be touched by the accused. She tried to escape and he was holding her back by force. [ 167 ] The sexual context of touching her has already been explained.

[ 168 ] The Crown proved beyond a reasonable doubt the accused is guilty of both offences. [ 169 ] After a careful examination of all of the evidence, including questions of credibility, the Court affirms no reasonable doubt subsists. [ 170 ] But the Court must take into consideration what the Supreme Court of Canada established in Kienapple v. R . [10] . The Court cannot condemn the accused of two convictions for same act. [ 171 ] Here the second count is included in the first count.

FOR THESE REASONS, THE COURT: FINDS the accused guilty of the two counts but PRONOUNCES a conditional stay of proceeding concerning the second count. _________________________________ CHRISTIAN M. TREMBLAY, Q.C.J. Me Jérôme Gagné Directeur des poursuites criminelles et pénales Attorney for the Prosecutor Me Vincent Lefebvre Montpetit Vaillancourt Paradis Attorney for the Accused Dates of hearing: April 26, 2017, September 11, 2017, October 4, 2017, November 14 and 20, 2017, March 29, 2018.