r v. DEORAJ, 2018 QCCQ 9954

R. c. Deoraj 2018 QCCQ 9954 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal Division No: 500-01-147312-166 DATE: December 18 th , 2018 ______________________________________________________________________________ BY THE HONOURABLE MÉLANIE HÉBERT, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v. DEORAJ Hermina Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________________ INTRODUCTION [ 1 ] Ms.

Deoraj stands trial for having committed an aggravated assault on her partner, Philip Francis. [ 2 ] Mr. Francis did not testify at trial. The Crown’s evidence rests mostly on Ms. Deoraj’s confession to the police in which she admitted to gashing Mr. Francis with a knife because she was angry at him for insulting her. [ 3 ] In her testimony before the Court, Ms. Deoraj admitted gashing Mr. Francis with a letter opener not because she was angry at him but because he was choking her, and it felt like she was going to die.

In short, she argued self-defence. [ 4 ] Thus, the sole question at issue in this matter is whether the Crown has proven beyond a reasonable doubt that Ms. Deoraj did not gash Mr. Francis in self-defence. CONTEXT A. The Crown’s case [ 5 ] At approximately 12:30 p.m. on the day of the stabbing, Mr. Lebel parked his car near the apartment building located at 3900 Barclay. He was picking up his friend Mr. Cantin, who lives in this building. As he got out of his car, he noticed a couple walking on the sidewalk. He had never seen that couple before. The woman was screaming at the man.

He was under the impression that she was accusing the man of having slept around and that she was trying to get rid of him. She was verbally aggressive. She seemed upset and angry. As for the man, he was following the woman passively and he seemed drunk. [ 6 ] According to Mr. Cantin, Mr. Lebel came to his apartment at approximately 12:00 p.m. While they were walking together towards Mr. Lebel’s car, Mr. Cantin saw his neighbour, Ms. Deoraj, on the balcony of her apartment located at 3890 Barclay. She was yelling at Mr. Francis, whom he also knows well.

He could not understand what they were arguing about. [ 7 ] At 2:17 p.m., a woman called 9-1-1 mentioning that she needed an ambulance for her boyfriend at 3890 Barclay, apartment 3 and hung up. The 9-1-1 operator immediately called back and a woman answered the phone.

She hung up again, even though she was told to stay on the line [1] . [ 8 ] At approximately 2:24 p.m., police officers Pelissier and Gélinas were dispatched to assist two other police officers in relation to a stabbing that occurred at 3890 Barclay, apartment 3. [ 9 ] At 2:28 p.m., ambulance technicians Rémillard and Cabana arrived at 3890 Barclay, apartment 3. A man, whom they identified as Mr. Francis, was sitting on the stairs between the first and the second floor of the building. He had been stabbed to the lower left side of his abdomen.

The wound was small and the bleeding was under control because it had clogged. A bandage was applied to the wound. Mr. Francis was alert, though anxious, and his vital signs were relatively stable. While being treated, Mr. Francis mentioned having drank beer that day but not having taken any drugs. That being said, Mr. Rémillard testified that he did not remember if he could smell alcohol on Mr. Francis.

[ 10 ] At about the same time, officers Pelisser and Gélinas arrived at the apartment building and saw a police car and an ambulance parked in front of the building. They remained close to the building entrance to ensure that no one came in and to secure the crime scene. [ 11 ] Officer Gélinas entered the building and from where he was standing, he could see two police officers and two ambulance technicians tending to a male victim on the first floor staircase landing. A woman, who was later identified as Ms. Deoraj, came in the building’s entrance.

At 2:31 p.m., officer Gélinas arrested her for the attempted murder of Mr. Francis. [ 12 ] At 2:33 p.m., officer Gélinas stepped out of the building with Ms. Deoraj, to allow for Mr. Francis’s evacuation by the ambulance technicians. At about the same time, Mr. Lebel dropped Mr. Cantin off and saw the same couple that he had seen earlier that day. The woman was coming out of the building handcuffed and the man was being carried out on a stretcher. He identified the woman that he saw twice on that day as Ms. Deoraj. [ 13 ] At 2:43 p.m., Ms.

Deoraj was taken to the police station by officers Gélinas and Pelissier. [ 14 ] At 5:40 p.m. police officer Ouimet executed a search warrant at 3890 Barclay, apartment 3 to look for the weapon used in the stabbing, although he did not know who was suspected of the crime nor the type of weapon used. [ 15 ] He noticed that there was blood outside the apartment’s front door but the door was intact [2] . The back door was also intact and there was no blood on that door nor on the balcony to which it leads.

An officer was posted at each door to secure the crime scene. [ 16 ] There were multiple small traces of blood in the living room, the hallway and the kitchen, as if someone who was bleeding had moved around the apartment. There were no traces of blood in the bedroom and the bathroom. The apartment was small, clogged with various items, leaving little space for movement. Yet, everything was tidy and seemed in its place [3] . [ 17 ] In the living room, there were drops of blood on the carpet, on a chair close to the phone and on the table cloth covering the table on which the phone was placed.

There was no sign of a struggle, everything was tidy and in its place [4] . [ 18 ] The kitchen was small. A table, a chair and a garbage can lay against one wall while the kitchen counter, the oven and the fridge lay against the opposite wall. The back door and the kitchen sink were located at the back of the kitchen [5] . [ 19 ] The kitchen counter and table were clogged with food, dishes and various items.

On the kitchen table, there was a tall standing glass filled with liquid, a standing roll of paper towels, a plastic container, a loaf of bread, a box of tissues, various cans, jars and boxes stacked upon one another, a box of cereal with a bag of cereals on top of it, amongst other things.

Yet again, everything on the table and on the counter was tidy and seemed in its place except for a broken plate and a broken tea cup in the kitchen sink and a few pieces of the broken tea cup on the kitchen counter and on the floor, just beside the sink [6] . [ 20 ] There was a small drop of blood on the counter beside the sink as well as blood on the floor in front of the sink and on a white napkin lying on the floor by the table. Most of the blood found in the kitchen was on the floor, close to the garbage can [7] . [ 21 ] Although the apartment was searched, no weapon was found. [ 22 ] In the evening, Ms.

Deoraj was questioned by Officer Doucet [8] . She denied that Mr. Francis had a problem with alcohol, but mentioned that when he drinks he sometimes stops her from going where she wants to go and she does not like that. [ 23 ] She initially denied having stabbed Mr. Francis, stating that she was not home when the stabbing occurred. She explained that at approximately 2:00 p.m., she left home and walked to the Western Union counter where she sent money to her brother. She then called her brother and came back home, where she was arrested. She added that she had not seen Mr.

Francis earlier on that day. [ 24 ] She eventually confessed to stabbing Mr. Francis. She explained that she was sitting on a chair, drinking a beer, and that Mr. Francis was standing beside her. He began cursing her, which made her angry, stating that “it was burning me inside”. So she picked up a knife and gashed him, without realizing what she was doing. She saw the blood, called an ambulance and left her apartment to go to her daughter’s apartment. When asked by Officer Doucet how she felt, she replied that she felt sorry that she was confused when Mr.

Francis called her names and that it made her skin burn. [ 25 ] As for Mr. Francis, he was transported to the Montreal General Hospital. His medical record shows that upon arrival at the hospital, he was inebriated. He was actively bleeding but his vital signs were stable. He received blood transfusions. A scan showed a retro-peritoneal bleed and a probable active bleed from an artery. He became unstable, had to be operated upon and resuscitated. He was then transferred to the intensive care unit when he remained for a few days [9] . B. The Defence’s case [ 26 ] Ms. Deoraj testified that she met Mr.

Francis in 2008 or 2009. He moved in with her quickly. [ 27 ] His alcohol consumption became a problem after approximately five years. He drank beer until he got sick. He then rested for a few days and began drinking again. When he drank too much, he became aggressive and jealous. He called her denigrating names, pulled her hair, choked her and forced her to have sex. If she got dressed or did her nails, he would accuse her of cheating on him. [ 28 ] When Mr. Francis was drinking, Ms. Deoraj would not drink more than one glass because she knew what was coming and it scared her.

She slept on the sofa to avoid contact with him and she cut her hair so that he could no longer grab her by the hair. His insults bothered her a lot. It made her cry. That being said, she had to let him in the apartment, even if he was drunk, because if she did not let him in, he would disturb the building’s other tenants. [ 29 ] She told him to leave on many occasions, but he came back, telling her that he would treat her nicely from now on. She forgave him because she loved him. She never sought help for the abuse because she was ashamed. While she told her mother about the abuse,

she lied to the others, including her daughter because she was ashamed and because she loved him, and she wanted her family to accept him. [ 30 ] She has called the police seven or eight times since they have been living together, that is every time he was violent, except for one occasion. She did not call the police when he broke her ribs because her daughter took her to the hospital. On that occasion, she lied to her daughter and said that she had fallen on the floor. When she was released from the hospital, Mr.

Francis came back to live at her apartment. [ 31 ] Every time she called the police, it was because she was scared. She told the officers that responded to the call what had happened but she only gave a statement on two occasions. She knew that they were there to help her, that she could trust them and she felt safe with them. On each of these occasions, Mr. Francis was arrested. She testified that she put him in prison seven times. [ 32 ] When Mr. Francis was facing charges, she met with the social workers at the courthouse and lied to them.

She told them that what was described in the police report was false, that she had lied to the police because she wanted to drop the charges against Mr. Francis. The social workers tried to get her help but she dropped the charges because she felt sorry for Mr. Francis, she did not want him to go to jail and she thought that he would change. [ 33 ] She described the events that unfolded on three occasions where she called the police. The first event occurred on the day of her birthday, February 2, 2013. At that time, Mr. Francis dragged her by the hair.

A police report [10] confirms that the police were called to Ms. Deoraj’s apartment on that day. Upon their arrival, the officers noticed that Ms. Deoraj and Mr. Francis were both intoxicated by alcohol. Mr. Francis was arrested for assaulting Ms. Deoraj. [ 34 ] The second event occurred on March 10, 2015. Mr. Francis went to the store and when he came back, he noticed that Ms. Deoraj was using her cell phone. He accused her of texting a man with whom he thought she was having an affair. She replied that she was texting her niece. He took her cell phone and broke it.

She said she was going to call the police and he punched her, as he usually did in such occasions. She called the police. [ 35 ] A police report [11] confirms that Ms. Deoraj called the police on that day. When the officers arrived at the apartment, Ms. Deoraj was crying and Mr. Francis was intoxicated. He was arrested for assault. When Ms. Deoraj came to the courthouse in relation to these events, she lied to the social worker because she did not want Mr. Francis to go to jail. [ 36 ] The third event occurred on October 6, 2016. Mr. Francis was drunk and he accused her of sleeping with another man.

He cursed her, pulled her hair and grabbed her neck. She told him to go away and to come back sober but he did not leave. Instead, he sexually assaulted her. She called the police after the assault, as she felt that only police officers could help her. She told the officers that responded to the call that she was afraid of Mr. Francis. He was arrested and charged with assaulting and threatening her [12] . [ 37 ] A police report [13] confirms that the police were called to Ms. Deoraj’s apartment on that day. When the officers arrived, Ms. Deoraj was hysterical and did not stop yelling.

They could smell an odour of alcohol emanating from her. They arrested Mr. Francis for assaulting and threatening Ms. Deoraj. He was drunk and the officers smelled a strong odour of alcohol emanating from him. [ 38 ] The next day, Mr. Francis was granted bail [14] . Conditions were imposed upon him, including a prohibition from communicating or being in the physical presence of Ms. Deoraj and a prohibition from being in a radius of 200 metres from Ms. Deoraj’s domicile. That being said, Mr. Francis did not abide by these conditions as he came to Ms. Deoraj’s apartment almost every weekend. Ms.

Deoraj was aware that in doing so he was breaching his conditions but she did not call the police because as she explained, she did not want confusion. Ms. Deoraj added that she considered that they were still a couple. [ 39 ] On the day of the stabbing, at about 11:00 a.m., she went to the Western Union counter to transfer money to her brother. While the transaction was being processed, Mr. Francis came in and began cursing her. She told him to leave and he left, slamming the door on his way out.

She left the Western Union counter and walked to a laundromat nearby where she called her brother to give him the number for the money transfer. She then walked back home. She did not see Mr. Francis when she left the Western Union counter, she did not see him on her way to the laundromat nor on her way back home. [ 40 ] When she got home, she put the chain on the door. At approximately 4:00 p.m., Mr. Francis showed up at her door. She let him in. He had two beers with him. He said he wanted to talk. She sat on a chair beside the kitchen table as shown on the pictures 030 and 032 of exhibit P-3A.

He was standing, facing her, as shown on the same pictures. He said “I’m gonna fuck you up” and insulted her, calling her “whormina”. She ignored him, putting her earphones on, even though she felt like crying. He took her yellow tea cup, which is a souvenir from her father, and broke it in the sink. Picture 033 of exhibit P3A shows the broken cup in the sink. She reacted by asking him why he broke her cup. [ 41 ] He grabbed her by the throat, while she was still sitting. She felt her bone breaking and her legs trembling. It felt like she was going to die. She screamed, asking him to let her go.

She tried to push him away but he was too strong. She used her left hand to feel the objects on the table beside her, hoping to find something she could use to defend herself. She did not know what was on the table and thus, she was just groping. She finally grabbed something, it was a letter opener. She used it to gash him [15] . [ 42 ] She ran into the living room to get her purse. She called 9-1-1 and immediately left the house. She did not turn back to answer the phone and she does not remember what she did with the letter opener.

She went to her daughter’s apartment but she was sleeping and thus, she came back home and was arrested. [ 43 ] When Mr. Francis was discharged from the hospital, he came to live with her. He recognized that he was wrong and he told her that he was sorry. They now live together and he is no longer drinking. ANALYSIS [ 44 ] Ms. Deoraj admitted to gashing Mr. Francis on December 3, 2016, and Mr. Francis’ medical record show that this wounded him

and endangered his life. This amounts to aggravated assault. [ 45 ] That being said, the description given by Ms. Deoraj of the circumstances that led her to gash Mr. Francis during her testimony before the Court meet all the criteria needed for self-defence to apply: (1) she believed, on reasonable grounds, that force was being used against her; (2) she gash Mr. Francis to defend herself; and (3) gashing was reasonable in the circumstances she described. [ 46 ] In other words, if the Court believes Ms. Deoraj’s testimony regarding the circumstances surrounding the stabbing, Ms. Deoraj should be acquitted.

If the Court does not believe Ms. Deoraj’s testimony in this regard, but is left with a reasonable doubt as to whether or not she acted in self-defence after having analyzed all of the evidence, Ms. Deoraj should also be acquitted. [ 47 ] In order to answer this question, the Court will begin by assessing the testimonies of Mr. Cantin and Mr. Lebel and then, the testimony of Ms. Deoraj. The Court will then assess the weight to be given to Ms. Deoraj’s confession. A. Mr. Cantin’s and Mr. Lebel’s testimony [ 48 ] Mr. Lebel and Mr. Cantin both testified that they witnessed Ms. Deoraj yelling or screaming at Mr.

Francis approximately two hours before the stabbing. Their testimonies differ slightly on only one issue: the time at which Mr. Lebel arrived at Mr. Cantin’s apartment. When the timing issue is set aside, their testimonies are consistent. Mr. Lebel saw Ms. Deoraj yelling at Mr. Francis on the sidewalk while he was on his way to pick up Mr. Cantin. When Mr. Cantin came out of his apartment with Mr. Lebel, he saw Ms. Deoraj yelling at Mr. Francis on the balcony of her apartment. [ 49 ] Mr. Cantin knows Ms. Deoraj and Mr. Francis well as he is a friend and a neighbor of the couple.

He is thus reliable when he identifies Ms. Deoraj as the woman he saw yelling. Mr. Lebel had never before seen the woman nor the man that he saw walking on the sidewalk that day. The fact that he saw the same couple approximately two hours later and the circumstances in which he saw them, that is one in handcuffs and the other on a stretcher, strengthens the reliability of his identification. [ 50 ] Thus, the Court finds the testimonies of Mr. Lebel and Mr. Cantin as being reliable and credible. It proves that Ms. Deoraj was yelling at Mr. Francis approximately two hours before the stabbing. B. Ms.

Deoraj’s testimony [ 51 ] The Court believes Ms. Deoraj’s testimony that Mr. Francis was, at times, especially when he was drunk, violent with her, both verbally and physically. The Court also believes that on the day of the stabbing, Mr. Francis insulted and cursed Ms. Deoraj and broke her tea cup in the kitchen sink. That being said, the Court does not believe that Ms. Deoraj grabbed the letter opener in the manner that she described in her testimony. [ 52 ] Indeed, Ms. Deoraj testified that while Mr.

Francis was chocking her, she used her left hand to feel the objects on the table beside her to find something that she could use to defend herself. She did not know what was on the table and thus, she was just groping. She grabbed a letter opener that was on top of various items stacked on the table, close to the wall [16] and immediately used it to gash Mr. Francis, making a movement with her left arm from the left to the right. [ 53 ] The pictures 030 and 034, exhibit P-3A, show that there was, on the kitchen table, just beside the chair in which Ms.

Deoraj was sitting, a tall glass fill with liquid and a roll of paper towels. Closer to the wall, where she found the letter opener, there were various cans, jars and boxes stacked upon one another on the table. If she would have groped the items on the table to find something to defend herself against Mr. Francis and then gashed at him in the manner she described, she would have knocked over some of these items. Yet, the pictures 030 and 034, exhibit P-3A, show that everything on the table seems in its place, undisturbed.

The glass and the roll of paper towels are still standing, the items stack upon one another are tightly arranged and none of the items fell on the floor. [ 54 ] Thus, Ms. Deoraj’s testimony that she found the letter opener while groping the objects on the table to find something to defend herself is incompatible with the material evidence shown on the pictures 030 and 034, exhibit P-3A. [ 55 ] In addition, when Ms. Deoraj confessed to Officer Doucet that she had stabbed Mr. Francis, she never mentioned that she did so in self-defence.

When she was asked why she withheld that information, she answered that she was confused, that she was in a different world and that she was in pain. [ 56 ] Yet, the video of Ms. Deoraj’s questioning, the answers she provided to Officer Doucet’s questions and her attempt to convince him that she was not home when the stabbing occurred show that Ms. Deoraj was not too confused, nor in a different world, nor too sick to give her version of events to Officer Doucet.

Rather, the video and her answers show that she was fully aware of what was happening and that she provided information and details to Officer Doucet regarding her family, her relationship with Mr. Francis, her whereabouts during the day and the events that led to the stabbing. [ 57 ] In fact, during her cross-examination, she admitted to trusting police officers and knowing that they were there to help her. She admitted to trusting officer Doucet and broadly discussing personal matters with him, including her family and her relationship with Mr. Francis.

She went as far as to say that she trusted officer Doucet to “explain her story”. Thus, her explanation for withholding this information from Officer Doucet is not credible in light of the evidence. [ 58 ] In the course of her argument, defence counsel suggested that Ms. Deoraj may have hidden these facts from Officer Doucet because she did not want Mr. Francis to go to jail. The Court understands that a victim of domestic violence may lie to the police or others to protect his or her partner. In fact, Ms. Deoraj testified that she lied to the social worker at the courthouse because she did not want Mr.

Francis to go to jail. That being said, Ms. Deoraj never said that she intentionally withheld information from Officer Doucet to protect Mr. Francis. Rather, she testified to omitting to disclose these facts because of confusion and sickness. [ 59 ] Finally, Ms. Deoraj testified that her gashing Mr. Francis was motivated by self-defence as opposed to anger, frustration or jealousy. She testified that on the day of the stabbing, she saw Mr. Francis at the Western Union counter, where he cursed at her. She

denied having been with him on the sidewalk or on her balcony, as stated by Mr. Lebel and Mr. Cantin. In her examination in chief, she explained that when Mr. Francis was drinking, she would not drink more than a glass of alcohol because she was afraid of what was coming. She also testified that she did not know if Mr. Francis was having an affair but that she was not jealous anyway. [ 60 ] In testifying on these issues, Ms. Deoraj was not transparent with the Court. The testimonies of Mr. Lebel and Mr. Cantin prove that she was with at Mr.

Francis approximately two hours before the stabbing and that she was yelling at him. In cross-examination, she admitted drinking with Mr. Francis to a point where she sometimes was herself intoxicated [17] . She also admitted that Mr. Francis told her that he was having an affair and that it bothered her as she felt disrespected. [ 61 ] While this does not mean that Ms.

Deoraj could not have acted in self-defence, it taints her credibility in a general fashion and the Court must take this into account in its assessment of her testimony and the evidence. [ 62 ] In light of the foregoing, the Court does not believe Ms. Deoraj’s testimony that she gashed Mr. Francis in self-defence and her testimony does not leave the Court with a reasonable doubt on this issue. C. Ms. Deoraj’s confession [ 63 ] While the Crown tendered various evidence at trial, only Ms. Deoraj’s confession can prove that she committed the offence for which she is charged.

In assessing the weight to be given to Ms. Deoraj’s confession, the Court must not only consider the statement itself but also all of the circumstances in which it was made. [ 64 ] In the matter at hand, Mr. Francis was stabbed shortly after 2:00 p.m. Ms. Deoraj was arrested at 2:31 p.m. for his attempted murder. She was given her rights twice and transported to the police station. After the booking procedure, she spoke to a lawyer and she was brought to a holding cell where she stayed for approximately five and a half hours.

While she was in her cell, she went to the bathroom twice, she received food and she was given a blanket and Tylenols. She was brought to a video interrogation room for questioning by Officer Doucet at approximately 9:00 p.m. [ 65 ] The video of her questioning shows that the atmosphere in the room was courteous. While it is true that Ms. Deoraj looked tired, was at times emotional and mentioned having a fever, her answers show that she was fully aware of what was happening. Less than an hour after the questioning began, she admitted stabbing Mr.

Francis. [ 66 ] After having analyzed all of the circumstances surrounding Ms. Deoraj’s confession in the course of a voir-dire in which Ms. Deoraj chose not to testify, the Court decided that it was convinced, beyond reasonable doubt, that Ms. Deoraj voluntarily made the confession. [ 67 ] At trial, Ms. Deoraj testified briefly on the circumstances surrounding her confession. She mentioned that she trusted Officer Doucet and that she felt at ease discussing various matters with him to the point where she trusted him to tell her story.

There is thus no reason for the Court to depart from its previous finding that Ms. Deoraj made the confession voluntarily. [ 68 ] As for the confession itself, it is clear, unequivocal and complete. Ms. Deoraj picked up a knife and gashed Mr. Francis because she was angry at him for cursing her. She saw blood, called an ambulance and left her apartment to go to her daughter’s apartment. [ 69 ] The statement is compatible with (1) the material evidence tendered at trial including the fact that the various items that were clogging the kitchen table were left undisturbed and,

(2) Ms. Deoraj’s description of her relationship with Mr. Francis, including the fact that he often insulted her when he was intoxicated, that his insults bothered her, that she felt disrespected by him because he was cheating on her and that she was seen yelling at Mr. Francis a few hours before gashing him. [ 70 ] In light of the foregoing, the Court finds that Ms. Deoraj’s confession proves, beyond a reasonable doubt, that she gashed Mr.

Francis because she was angry at him, not because she acted in self-defence and therefore, that she committed an aggravated assault. [ 71 ] CONCLUSION Therefore, the Court: FINDS Ms. Deoraj guilty of aggravated assault on Mr. Francis. __________________________________ MÉLANIE HÉBERT, J.C.Q. Me Camille Boucher

Attorney for the Prosecutor Me Sharon Sandiford Attorney for the Accused