2023 QCCA 34, 2023 QCCA 34

Putulik c. R. 2023 QCCA 34 COUR D'APPEL CANADA PROVINCE DE QUÉBEC GREFFE DE QUÉBEC N o : 200-10-003831-216 (635-01-019316-208) PROCÈS-VERBAL D'AUDIENCE DATE : 13 janvier 2023 FORMATION : LES HONORABLES SIMON RUEL, J.C.A. SOPHIE LAVALLÉE, J.C.A. PETER KALICHMAN, J.C.A.

PARTIE APPELANTE AVOCATE SAMMY PUTULIK Me CLARA DAVIAULT (ABSENTE) (Yves Ménard Avocats)

PARTIE INTIMÉE AVOCATE SA MAJESTÉ LE ROI Me RAPHAËL LACOSTE (ABSENTE) (Directeur des poursuites criminelles et pénales) En appel d'un jugement rendu le 6 janvier 2021 par l'honorable Paul Chevalier de la Cour du Québec, district d’Abitibi.

NATURE DE L'APPEL : Infliction de lésions corporelles – Proférer des menaces (7 chefs) (culpabilité) Greffière-audiencière : Ariane Gilbert Salle : 4.33 AUDITION 9 h 00 Continuation de l’audience du 11 janvier 2023. Les parties ont été dispensées d’être présentes à la Cour; Arrêt; Fin de l’audience.

Ariane Gilbert, greffière-audiencière JUDGMENT [ 1 ] The appellant appeals from an oral interlocutory judgment rendered pursuant to a voir dire held on January 6, 2021, by the Court of Québec, district of Abitibi, which declared that an oral statement by the complainant recorded on video and a subsequent written statement were admissible as evidence. [1] [ 2 ] The case involves a matter of conjugal violence that occurred in Nunavik, Kuujjuaq. The appeal pertains only to trial file no. 208, namely the events that occurred on May 26, 2020.

At trial, this file had been combined with another file involving prior events, file no. 195, in which there was an acquittal. [ 3 ] Responding to a complaint from a neighbour who had heard fighting, police officers went to the complainant’s apartment on May 26, 2020. The appellant was present in the apartment and was placed in preventive custody. At that time, police officer Dupuis- Miron met with the complainant and turned on her body camera. The complainant gave a statement, which was recorded. [2] [ 4 ] In the video, the complainant immediately states that the appellant assaulted and beat her.

She provides a verbal and physical description of his actions. She is agitated. She is bleeding and her left cheek is visibly quite swollen. The complainant says she wants to make a statement in Inuktitut, but she is able to express herself in English. The police officer encourages her to provide an initial version in English and tells her she can meet with a police officer fluent in Inuktitut the following day. [ 5 ] The next day, officer Stevenson met with the complainant at her apartment. Officer Stevenson’s mother tongue is Inuktitut.

The officer sat near the complainant and took her statement in the complainant’s language, transcribing it into English. The complainant was close enough to see what the police officer was writing on the statement form. After it was completed, the complainant signed the statement. [ 6 ] The trial in file no. 195 had been scheduled to begin in December 2019, but the complainant could not be located. At the hearing, the appellant stated, “She is not going to show up…”. The case was rescheduled for two days later to provide an opportunity to locate the complainant, but she was still untraceable.

The case was postponed and, in the meantime, the appellant was released. The events of May 26, 2020 occurred while the appellant was subject to an order prohibiting him from having contact with the complainant, which had been issued in file no. 195.

[ 7 ] The trial in both files was scheduled for December 8, 2020 (or rescheduled in the case of file no. 195). On that date, the complainant was still absent because she was hospitalized in Montreal. The prosecution asked for a postponement, which the judge refused, stating that despite the prosecution’s best and reasonable efforts to ensure the complainant’s presence in court, it seemed unlikely that she would appear at a later date and that the proceedings against the appellant should not be further delayed. [ 8 ] The trial therefore took place.

Relying on the principled exception to the hearsay rule, the prosecution sought permission to file into evidence the complainant’s statement recorded on the police officer’s body camera on May 26, 2020 and the May 27, 2020 written statement taken down by officer Stevenson. After a voir dire , the judge admitted both statements.

The appellant was convicted on the charges of assault causing bodily harm, uttering threats to cause death or bodily harm, and breach of conditions. [ 9 ] The appeal pertains to the decision to admit the complainant’s out-of-court statements made on May 26 and 27, 2020. [ 10 ] The appellant argues that the two statements do not satisfy the necessity criterion or the procedural and substantive reliability tests. On the procedural front, he argues that there are insufficient procedural safeguards to substitute for an oath, a promise to tell the truth or a cross-examination.

He also argues that the judge erred in finding that the statements were substantively reliable. [ 11 ] Contrary to what the appellant contends, the necessity criterion was clearly met in this case. The judge did not err. The appellant argues that the trial could have been held on the basis of circumstantial evidence, without the out-of-court statements. Even if there was some circumstantial evidence of the commission of the offences, it appears obvious that in a conjugal violence case, where the only two direct witnesses were the parties involved, the complainant’s version was crucial.

As indicated, the prosecution made considerable efforts to ensure the presence of the complainant, but to no avail. On the day of the trial, she was hospitalized in Montreal and could simply not be present. The judge dismissed the prosecutor’s request to postpone the trial, which prompted the request to admit the two out-of-court statements as evidence. [ 12 ] The determination of the reliability of the two statements involves a discretionary balancing exercise.

With respect to procedural reliability, in the absence of cross-examination, the evidence must “provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement”. [3] Thus, in certain cases, a video recording of a statement will be an appropriate substitute for the traditional guarantees of reliability [4] . [ 13 ] As for substantive reliability, it is established when the statement “is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken”. [5] What must be determined is whether the statement is inherently trustworthy.

The trial judge must be “satisfied that the statement is ‘so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process’”. [6] In other words, the cross-examination would be superfluous. [7] [ 14 ] As this Court previously acknowledged in R. c.

Guzoraky , the dangers associated with hearsay evidence can be overcome through a test of procedural reliability or substantive reliability. [8] Although the two branches are equivalent and alternative means for establishing the threshold reliability of an out-of-court statement, [9] they also work in tandem and inform each other. [10] [ 15 ] Finally, the principled exception to the hearsay rule must be applied flexibly, so that it can be adapted to a variety of situations. [11] The trial judge is in the best position to determine [ translation ] “the extent to which the hearsay dangers exist”. [12] [ 16 ] The judge applied the correct legal principles.

His judgment, rendered orally, is well structured and reasoned. The judge was of the view that procedural and substantive reliability had been established for both statements, on a balance of probabilities. [13] He made no reviewable error in the exercise of his discretion. [ 17 ] The statements are short and were made immediately after the occurrence of the events in the case of the first one, and shortly thereafter in the case of the second. [ 18 ] The first statement was recorded. The police officers did not ask leading questions, and the complainant gave her version spontaneously.

There was evidence corroborating the statements’ reliability, including the neighbour’s complaint and the complainant’s fresh injuries, which are clearly visible on the body camera video. In the recording, the complainant, who is visibly agitated and crying, provides a physical description of the choking she says she experienced in the previous minutes.

If the complainant had been drinking, she did not appear to be intoxicated, as officer Dupuis-Miron in fact testified. [ 19 ] As regards the second statement, the police officer took particular care to ensure the accuracy of the facts garnered from the complainant in Inuktitut and she was able to read the officer’s transcription in English all along. The complainant’s version was consistent with her previous day’s statement. [ 20 ] In the particular circumstances of this case, the judge committed no reviewable error.

A cross-examination would only have provided peripheral details and that both statements appeared to be inherently reliable and credible. The interests of justice weigh in favour of admitting the statements into evidence. FOR THESE REASONS, THE COURT: [ 21 ] DISMISSES the appeal. Error! Reference source not found.

Error! Reference source not found. Error! Reference source not found. Mtre Clara Daviault Mtre Alexandre Binet Yves Ménard avocats inc. For the appellant Mtre Raphaël Lacoste DPCP Amos For the respondent Date of hearing: January 11, 2023