r v. MAURICE LAVIGNE, 2014 QCCQ 9889

R. c. Lavigne 2014 QCCQ 9889 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF BEDFORD LOCALITY OF COWANSVILLE Criminal and Penal Division No. 455-01-012398-123 DATE: October 9, 2014 PRESENT: THE HONOURABLE SERGE CHAMPOUX J.C.Q. HER MAJESTY THE QUEEN Prosecutor v. MAURICE LAVIGNE Accused JUDGMENT [ 1 ] On September 27, 2012, in Farnham, Maurice Lavigne allegedly uttered threats to cause death or bodily harm to Jessica Algier, and on the same date, allegedly threatened to set fire to her residence.

In addition, at the same time and place, he allegedly uttered threats of a similar nature against Rodney Gibson and against the latter's property, i.e. his vehicle and house. [ 2 ] Jessica Algier and Maurice Lavigne lived together and had two children.

They are now separated, and their relationship is clearly strained. [ 3 ] According to Jessica Algier, on September 26, via Facebook, SMS messaging, and when she met the accused in a convenience store, she asked him for $100 to help her provide for the needs of the children. [ 4 ] At the time, there was no judgment between the parties ordering support to be paid. [ 5 ] Jessica Algier stated that, in general, she paid for all the children’s expenses, but occasionally asked the accused for help.

She asked him to deposit the amount in her bank account because she did not want to have any direct contact with him. [ 6 ] According to Jessica Algier, rather than depositing the money, the accused came to her residence on September 27. An argument

broke out, during which Maurice Lavigne accused Jessica Algier of not properly caring for the children, and he insulted her. At that point, he was at the door of her apartment. [ 7 ] During the quarrel, the accused allegedly threatened to kill Jessica Algier and to set fire to the building where she lived. At that moment, Jessica Algier was with Rodney Gibson, her new spouse. Allegedly, Maurice Lavigne also said that he would blow up Mr. Gibson's car and his dwelling. At that point, Rodney Gibson came out of the apartment to take on Maurice Lavigne.

Jessica Algier then took refuge in the apartment and called the police. Rodney Gibson subsequently went back in and police arrived on the scene. [ 8 ] Francis Blais, one of the police officers at the scene confirmed that, on his arrival, the accused was there and was quarreling with Jessica Algier. He confirmed that Jessica Algier was in a state of panic, and that the accused quickly calmed down and was arrested. He cooperated with the police and did not otherwise show any aggressiveness toward the officers. [ 9 ] The accused testified. He explained that he met Jessica Algier the day before.

They agreed that, the following day, he would supply $100 for the children and would come pick them up. On September 27, he went to Jessica Algier's residence and gave her the money. He claimed that he asked her for a receipt for the amount paid. She agreed and signed a document in that regard for him. [ 10 ] It appeared to be agreed between them that he would take the children that day. Jessica Algier allegedly prepared the children's bags, packing their clothes and medication.

Maurice Lavigne claimed that he took the bags and said he would come back later to pick up the children since his daughter had momentarily left to see her grandmother. [ 11 ] Be that as it may, a few minutes later, at his residence, he received a message from Jessica Algier telling him that he would not have the children. He answered "we'll see" and returned to Ms. Algier's residence. [ 12 ] According to him, he calmly went back to return the children's bags.

Once he got there, Jessica Algier insulted him and said that he, Maurice Lavigne, had threatened to set fire to Rodney Gibson's car and house, which was false. Hearing that, Rodney Gibson came out to threaten him. Jessica Algier called the police. Once informed of this, Maurice Lavigne stayed where he was, awaiting their arrival. So he did not threaten anyone at all. [ 13 ] The record consists of contradictory versions from the testimony of each party. In cases of contradictory evidence including the testimony of the accused, the Supreme Court of Canada in R . v.

W.(D.) , [1] teaches that the following steps should be taken in analyzing the evidence. 1. If the accused’s evidence is accepted and it is exculpatory, the accused must be acquitted and the analysis must end. 2. If the accused’s version is not accepted, whether in whole or in part, yet it raises a reasonable doubt, the accused must benefit from it and he or she must be acquitted. 3. It is only if the first two stages did not make it possible to complete the analysis that the evidence as a whole must be examined in order to ascertain whether it demonstrates guilt beyond a reasonable doubt.

Only in such a case can the accused be found guilty. [ 14 ] The first question that must be answered therefore is whether or not I believe the accused. [ 15 ] In a word, no. [ 16 ] Here are a few examples of what prevents me from believing him: 1. The accused indicated, in his initial testimony before the Court, on April 8, 2014, that he obtained from Jessica Algier a receipt for his alleged payment, but he did not file it. However, subsequently, and through his attorney, on May 28, 2014, he indicated that he wanted the proceedings to be reopened so he could file the receipt.

On May 30, photocopies of two receipts, one of which dated September 27 (the alleged date of the offences), were filed, and July 24 was chosen and not contested as the date for the hearing on reopening of the proceedings. The result was not very convincing. On the one hand, Maurice Lavigne did not testify. On the other hand, the Crown had Jessica Algier testify. She acknowledged that she signed the two receipts, but provided the following comments or explanations. As concerns the receipt of September 27, she claimed that the accused asked her to sign the document before giving her the money.

After she signed, he did not give her anything, no amount whatsoever. As concerns the receipt of August 9, 2012, she claimed that it was altered to read, not $20 (which she admitted she received), but $120, the amount indicated on the document. It is very difficult for me to set aside this testimony, the only one on the question moreover. Jessica Algier already testified that she wanted to avoid contact with the accused and that she preferred that he transfer the money directly into her bank account.

That would very much have simplified matters and would have represented evidence hard to contest had the accused done so. However, that was not the case. Even evidence of a transaction, such as a contemporaneous withdrawal from his account, could have added credibility to his story. Furthermore, in her original testimony, Jessica Algier herself alleged that the dispute, which degenerated on the morning of September

27, concerned the accused’s failure to pay the required amount of $100. In the circumstances, these elements do little to bolster the accused’s credibility. 2. The accused claimed that he kept his calm at all times on the morning in question. Yet, he admitted that, on receiving Jessica Algier's message telling him that he would not have the children, he replied "we'll see". He then went to her residence, simply to return the children's bags. This behaviour is highly unlikely for someone who just said "we'll see".

Moreover, he acknowledged that he called Jessica Algier a [TRANSLATION] "fat cow" and "slut", and made racist remarks about Mr. Gibson. All this strongly contradicts his claim that he kept his calm. 3. He claimed that Jessica Algier gave him the bags containing the children's medication and their clothing, since she was supposed to leave him the children later. She denied this altogether, and said that there was no question of Maurice Lavigne having access to the children that day. Be that as it may, he claimed that she sent him a message a few minutes later, saying that he would no longer have the children.

This is illogical. If she had already decided not to let him leave with the children, I fail to understand why she would have let him leave, at the very first opportunity, with the children's medication, specifically including, according to the testimony of the accused, antibiotics, i.e. prescription medication that the mother certainly did not have in duplicate. Moreover, no one saw the bags the accused said he brought back. 4. Each party claims that the other uses drugs. Jessica Algier claims that she agreed to undergo a screening test, with conclusive results.

She said that she no longer uses drugs and that the Direction de la protection de la jeunesse acknowledged this. She did not deny that Mr. Gibson uses marijuana. The accused claims that he does not use drugs. However, when cross-examined as to whether he agreed to a screening test, he answered that he did not, as he was not obliged to. Indeed, he is not obliged, but his credibility is at issue here. 5. In general, his behaviour in Court showed that he is not the kind of person who is calm and in control of himself. [ 17 ] For these reasons in particular, his testimony is dismissed.

In addition, nothing in the testimony raises any reasonable doubt in my mind. [ 18 ] As concerns the evidence in general, the Crown concedes that, in the absence of Rodney Gibson, who was summoned, but not present, its evidence concerning count 3 is insufficient. [ 19 ] As concerns the other counts, the testimony of Jessica Algier was never seriously affected. Certainly, she is an extroverted person, maybe even with a fiery temperament, but this does not affect her credibility.

It is evident that she was seriously shaken up by the events on the day in question, and she said so. [ 20 ] As concerns counts 1, 2 and 4, proof beyond a reasonable doubt was adduced, and the accused is declared GUILTY on these counts. Serge Champoux J.C.Q. Mtre. Véronic Champagne Counsel for the prosecutor Mtre. Danielle Dontigny Counsel for the accused Date of hearing: April 8, 2014