r v. DAVID-WALTER HARVEY, 2015 QCCQ 16383

R. c. Harvey 2015 QCCQ 16383 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF IBERVILLE LOCALITY OF SAINT-JEAN-SUR-RICHELIEU Criminal and Penal Division No. 755-01-037749-147 DATE: October 29, 2015 PRESENT: THE HONOURABLE MICHEL BÉDARD J.C.Q. HER MAJESTY THE QUEEN Prosecutor v. DAVID-WALTER HARVEY Accused JUDGMENT ON A MOTION FOR A DIRECTED VERDICT OF ACQUITTAL [ 1 ] The accused was charged with the following: [TRANSLATION] On or about January 14, 2014, in Saint-Jean-sur-Richelieu, District of Iberville, Québec, committed assault on Marie-Andrée Simpson, thus committing the indictable offence punishable on

summary conviction set out in

section 266 (

b) of the Criminal Code . JB4131 [ 2 ] Following the closing of the prosecutor's case, counsel for the accused filed a motion for a directed verdict of acquittal, arguing that his client was in the right to act as he did based on the grounds for defence set out in sections 27 and 41 of the Criminal Code . The prosecutor objected, requesting that the motion be dismissed on the grounds that there was no absence of evidence on the essential elements of the offence.

THE LAW [ 3 ] As the Supreme Court recalled in Monteleone , [1] the prosecutor must submit prima facie evidence on each element of the offence before closing its case. [ 4 ] At the stage of a motion for a directed verdict of acquittal, the test to be applied is the same as that set out in United States of America v.

Shephard , [2] according to which the judge must decide whether the prosecutor has submitted admissible evidence on each element of the offence, upon which a properly charged jury could reasonably bring in a verdict of guilty. [3] [ 5 ] Ultimately, the judge must apply the same test as that applied in a committal during the preliminary inquiry, in that the judge does not have to consider the probative force of the evidence or the witnesses’ credibility at this stage. [4] [ 6 ] Finally, in dismissing a motion for a directed verdict of acquittal, the judge must avoid giving an opinion on the prosecuting evidence because it is not up to the judge to draw inferences of fact pursuant to the evidence submitted during this preliminary stage.

ANALYSIS AND DECISION [ 7 ] Section 265(1) (

a) of the Criminal Code defines assault as follows: …A person commits an assault when without the consent of another person, he applies force intentionally to that other person, directly or indirectly. … [ 8 ] The law does not specify a particular level of force to be used, with the result that even a touch of the hand may be considered an assault. [ 9 ] Absence of the victim’s consent is a material element of the offence, whereas the application of force must be intentional, making assault a “general intent offence”. [ 10 ] In this case, the evidence established that the accused was sitting behind the wheel of a car while the alleged victim was in the passenger seat.

The accused grabbed the passenger's upper left arm with his right hand and shook her several times, against the car door, angrily shouting at her to “Get out”.

He finally pushed her out when she managed to open the right door. [ 11 ] In light of this prosecution witness’s description of the accused’s alleged actions in her regard, and without weighing the probative force of the evidence or the witness's credibility as taught by the Supreme Court in matters of directed verdict of acquittal, the Court declares that the essential elements of assault are included in the prosecutor's evidence, and that, accordingly, there is no absence of evidence of the material elements of the offence of which the accused is charged. [ 12 ] THEREFORE, THE COURT: [ 13 ] DISMISSES the motion for a directed verdict of acquittal.

MICHEL BÉDARD J.C.Q. Mtre. Martin Bourgeois Counsel for the prosecutor Mtre. Steven G. Slimovitch For the accused Date of hearing: August 27, 2015 CITATIONS BY THE PROSECUTOR 1. R. v. Paul, (SCC), [1977] 1 S.C.R. 181. 2. R. v. Salomon, 2006 NBCA 52. 3. R. v. Arnold, 2011 PECA 15. CITATIONS BY THE DEFENCE 1. Plante v. R., 2010 QCCA 1025. 2. Vallée v. R., [1993] CANLII 4303 (QC CA). 3. R. v. Lefort, 2014 QCCM 26. 4. R. v. Talib, 2006 QCCM 8 .