R v. MOSES, 2017 QCCQ 9568

R. c. Nutaraluk 2017 QCCQ 9568 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL CRIMINAL DIVISION No: 500-01-150342-175 DATE: August 24, 2017 ______________________________________________________________________ BY THE HONOURABLE ALEXANDRE ST-ONGE, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN PROSECUTOR v. MOSES NUTARALUK ACCUSED ______________________________________________________________________ JUDGMENT ______________________________________________________________________ CONTEXT [ 1 ] Moses Nutaraluk “M.N.” is accused of : 1.

On or about February 1 st , 2017, in Inukjuak, district of Abitibi, in committing an assault on Lizzie Nalukturuk, did wound, maim, disfigure, committing thereby the indictable offence provided by

section 268 of the Criminal Code . 2. On or about February 1 st , 2017, in Inukjuak, district of Abitibi, did knowingly utter, convey and/or cause any person to receive a threat to cause death or bodily harm to Lizzie Nalukturuk, committing thereby the indictable offence provided by

section 264.l(1)a) (2)

a) of the Criminal Code . 3. On or about February 1 st , 2017, in Inukjuak, district of Abitibi, did confine, imprison or forcibly seize Lizzie Nalukturuk, committing thereby the indictable offence provided by section 279(2)

a) of the Criminal Code . 4. On or about February 1 st , 2017, in Inukjuak, district of Abitibi, in committing an assault on Lizzie Nalukturuk, did carry, use and/or threaten to use a weapon, committing hereby the indictable offence provided by

section 267a) of the Criminal Code . 5. On or about February 6 th , 2017, in Montreal, district of Montreal, did commit an assault on Lizzie Nalukturuk, committing thereby the indictable offence provided by

section 266

a) of the Criminal Code . REVIEW OF THE EVIDENCE Lizzie Nalukturuk [ 2 ] Lizzie Nalukturuk “L.N.” is Moses Nutaraluk’s girlfriend since July 2016. She is the mother of an 8 year old daughter whose father is not the accused. On February 1 st 2017, she is 5 months pregnant with M.N.’s child. M.N. was aware of L.N.’s pregnancy and was happy about it. [ 3 ] On February 1 st 2017, at 8 pm, in Inukjuak, L.N. went to see M.N. at Marylin’s house, M.N.’s cousin. They were alone and shared a «Mickey», a small recipient containing 10 ounces of vodka, and listened to some music.

She removed some of her clothes and stayed naked for a while. Eventually, L.N. put some clothes back on because she wanted to go out to “get more drunk”. M.N. got mad, aggressive and accused L.N. of cheating. [ 4 ] The accused then started to beat her up: • She was punched in the face;

• She was punched in the stomach; • She was punched in the chest; • She was kicked very hard in the stomach while she was lying on the floor. [ 5 ] The hits started around 10 pm. She told M.N. to stop. He did not. She was beaten for a long time even though she cannot specify the exact length of time. At one point, she told him that she was going to lose the baby. It also appeared to L.N. that M.N. was trying to kill the baby. She tried to protect herself and the baby by placing an arm in front of her stomach. [ 6 ] During the evening, Marylin came back to the house for a short period.

M.N. gave her diapers while she waited outside. She did not see L.N. who stayed inside. After she left, M.N. threatened L.N. with a knife. He said: “If someone comes again, I will kill you with that knife”. [ 7 ] At one point during the evening, L.N. tried to escape by running away but was grabbed by M.N. who prevented her from leaving the house. He pulled her by the hair and punched her. She lost a lot of hair. [ 8 ] There was a lot of blood on her face and on her clothes. L.N. had to clean the blood. M.N. did the same. She went to the bathroom to see if the baby “got out of her”.

She lay down at one point and asked M.N. to listen to the baby’s heartbeat. There was none. L.N. told M.N. she wanted to go to the hospital. She changed her clothes before going to the clinic situated one mile away from Marylin’s house. [ 9 ] M.N. told her to say nothing, even to the police. She felt « she had to lie ». When they left the house, there was a blizzard outside and it was very cold. She went to the local clinic in Inukjuak by foot with M.N. She lied at the clinic by saying «some girls beat me up».

A nurse told her that her baby had no more heartbeat. [ 10 ] After receiving medical treatment in Inukjuak, she was transferred by plane to a hospital in Puvirnituk. M.N. was with her in the plane during the transfer. After being seen by a doctor, L.N. was then transferred, alone, by plane, to the Montreal General Hospital. There, she lied again as to who assaulted her. [ 11 ] After her release from the hospital, she stayed at the Ullivik Center in Dorval. Around February 5 th , M.N. arrived in Montreal and met with L.N. They booked a hotel room and got drunk at a bar nearby.

They also drank on February 6 th . [ 12 ] At one point, in Montreal, on February 6 th , M.N. grabbed L.N. and pulled her to the ground. He punched her. They were both intoxicated. She ran away, looked for a taxi, and went to the Expresso Hotel where she stayed with an acquaintance for the night. [ 13 ] She went back to the Ullivic Center on February 7 th , revealed to a nurse what happened, and the police were called. L.N. identified herself, and her injuries on photos that were produced into evidence as P-1.

These photos were taken on February 7th 2017, at 18h59, at the Ullivik Center in Dorval. [ 14 ] L.N. suffered no psychological injuries even though she is scared of M.N., and fears that he will kill her. [ 15 ] L.N.’s cross-examination revealed that her parents did not want her to be with M.N. It also revealed inconsistencies as to the sequence of events in Montreal. For example, L.N. is mistaken when she says it was on February 5 th 2017 that she shared the hotel room in Dorval with M.N.

It was more likely on February 4 th 2017. [ 16 ] She is also mistaken when she says that she talked to the police on February 9 th as the evidence (P-1) suggests it was on February 7 th . [ 17 ] She testified that at the bar in Dorval, M.N. did not see someone he knew. She then said she thinks he saw an ex-girlfriend. She was not able to recall if M.N. kissed a girl at the bar in Dorval but speculated that maybe it happened after she ran away. [ 18 ] The cross-examination also revealed that she and M.N. spent the day of February 5 th walking and taking a bus ride around town.

They ended up at a McDonald’s restaurant where they stayed a good portion of the night. [ 19 ] After that, they received a money-transfer, bought alcohol, and got drunk on February 6 th , 2017. [ 20 ] She denied punching M.N. in Montreal. Medical evidence [ 21 ] L.N.’s medical report from the medical clinic in Inukjuak and from Puvirnituk’s hospital were produced into evidence as P-2. The medical report from the Montreal General Hospital was produced into evidence as P-3.

No expert witness was called to testify. [ 22 ] The following facts are of particular importance to the Court: Clinic In Inukjuak (P-2) [ 23 ] November 11 2016, L.N. came in for a maternity test. She is pregnant 6 weeks and 2 days.

[ 24 ] February 2 nd 2017, at 4:00 am, L.N. presents herself with M.N. She is calm. • She says that she was beaten.

And that she was too drunk to remember anything from her evening; • She drank 10 ounces of vodka but took no drugs; • She is 20 weeks pregnant; • Her face is very bruised (+++ in the report) and there are lacerations on her face; • There are multiple bruises on her body (arms, hands, shoulder, abdomen) • Abdominal pain (+++ in the report), peristalsis; • At 4:15 am, the foetus has no heartbeat; • At 4:20 am, abdominal pain and contraction; • At 4:25 am, foetus has no heartbeat; • At 5:15 am, abdominal pain increasing; • At 5:35 am, says that she felt her baby move yesterday; • At 7:35 am, foetus has no heartbeat; • At 8:20 am, she was put on a stretcher and left for the airport.

Medical Consultation (P-2) – February 2 nd 2017, 6h10 [ 25 ] Nebulous story is the word written on the report. May have been attacked. Boyfriend called first responders when patient came back: • Patient has amnesia concerning the incident; • Lots of bruising in the face (+++ in the report), arms, back, abdomen; • 6-7 bruises on the abdomen; • Pregnancy stopped; • Context of alcool intoxication. Hospitalisation

summary sheet (P-2) - Inukjuak [ 26 ] Spontaneous vaginal childbirth: • Non viable female fœtus 420 gr; • No postpartum bleeding; • Fracture d-5 and d-9; • Suspicion of fracture of right mandibule and of left orbital base; • Complete amnesia of incident; • Light cranio-cerebral trauma; • Important tearing of placenta that could explain death of fœtus of 20 weeks; • And finally, a note: Patient will be questioned by police when she comes back from Montreal. Montreal General Hospital (P-3) - Montreal [ 27 ] Arrival 6h53, February 3rd 2017. Departure 12h32 February 3 rd 2017.

Triage assessment sheet (P-3) [ 28 ] Assaulted yesterday? Loss of consciousness. Amnesic of events, intoxicated. [ 29 ] Brought to hospital by significant other. 20 weeks pregnant. Miscarried yesterday 11 am.

Imaging report from Dr Kintzen (P-3) [ 30 ] According to the medical notes, the patient status posted 2 days ago at 20 weeks of pregnancy. Rule out retained products. The uterus appears enlarged in keeping with history of recent pregnancy. No myometrial lesions are identified. Impression [ 31 ] Moderate thickening of the endometrium, likely to be normal for status post miscarriage. No evidence of areas demonstrating vascularity are noted to suspect retained products. A ultrasound follow-up in one week is suggested. Imaging report from Dr Delcarpio (P-3) [ 32 ] Clinical information: 26-year-old woman blunt trauma.

Comparison: No previous. Findings [ 33 ] The cerebellum, the brainstem and the cerebral hemispheres show normal morphology with adequate gray-white matter differentiation. The ventricles are of normal size and shape. No depressed calvarial fractures, no intracranial bleeds, no extra-axial collections. Soft tissue swelling over the facial structures. Described on the dedicated CT of facial bones. Impression [ 34 ] No evidence of acute posttraumatic intracranial sequelae. Imaging report from Isabelle Dupuis (P-3) [ 35 ] Clinical information: blunt trauma.

Comparison [ 36 ] No previous study available for comparison. Findings [ 37 ] There is a comminuted left nasal bone fracture. There is diffuse soft tissue edema involving the periorbital and molar regions bilaterally. There is also a soft tissue contusion over the right zygoma. Intact orbital content. Minimal mucosal of thickening the left maxillary sinus. Impression [ 38 ] Comminuted left nasal bone fracture. No other facial bone injury. Blood tests at the Montreal General Hospital (P-3) [ 39 ] A reading of ethanol of under 2.5 millimole by liter in a lab test collected at 6h53, on February 3 rd 2017.

Moses Nutaraluk [ 40 ] M.N. testified in his defence. On February 1 st 2017 after finishing work, he went to Marylin’s place, M.N.’s cousin. He was living there since she lost her boyfriend. He was home alone, drinking alcohol and smoking marihuana. [ 41 ] Around 11 pm, he heard multiples “bangs” on the door. It was L.N. Her nose and eyes were bleeding a lot. Her face was swollen, she had “raccoon eyes” and she was in pain. He was not expecting L.N. and was not aware if she knew he was at Marylin’s house. [ 42 ] L.N. told M.N. that two girls beat her up. She did not say who they were.

When he asked her why she was beaten, L.N. responded “It’s because I’m with Moses”. He was not afraid when he heard the “bangs” on the door and thought it was Marylin so he was surprised to see L.N. He did not look outside to see if L.N.’s aggressors were there: “I did not bother to look. It was not my business”. [ 43 ] When she entered, L.N. asked to have a cigarette with him. M.N. asked who her agressors were and she answered: “I am scared you will murder them”.

He wanted to go to the hospital but L.N. refused even though she was in pain, injured and scared of having a seizure. [ 44 ] When he touched her belly, she was in pain. Around 12h15-12h30 am, he put his ear on her stomach and did not hear a heartbeat. He told her: “the baby is dead”. They both started to cry. They tried to sleep but could not because L.N. was in pain. They finished a pack of cigarettes together and he finally convinced her to go to the clinic.

[ 45 ] According to him, they left at 3h10 am to go to the clinic in Inukjuak. L.N. asked to change clothes and she wore M.N.’s clothes before going to the clinic. They walked there after he phoned the clinic from a neighbor’s house, 25 to 35 houses away from Marylin’s house. [ 46 ] He denies being L.N.’s aggressor. [ 47 ] He accompanied her to the Clinic in Inukjuak and was also with her when she was transferred by plane to Puvirnituk. He was able to get to Montreal around February 4 th 2017. [ 48 ] When he arrived in Montreal, he reunited with L.N. at the Ullivik Center where she stayed.

In Montreal, L.N. told him “I don’t know what I said about you, I was drunk”. He had no money in Montreal. [ 49 ] They left the Ullivic Center and went to a bar. They drank at the bar, then found a hotel that happened to be near the Ullivik Center. L.N. paid for the room, and they had sex that night. [ 50 ] The next day, on February 5 th , they walked during the day, took the subway, tried to reach a cousin, and stayed at a McDonald’s restaurant most of the day. They also went to Plaza Alexis Nihon. On February 6 th , they were able to get a money transfer. They went to a bar and drank.

M.N. kissed an ex-girlfriend there and was slapped by L.N. [ 51 ] M.N. denies grabbing the complainant and pulling her down. “I would have never hit her” he said, “I lost my daughter”. L.N. left, and he waited for her all afternoon and went online where he saw a post of L.N.’s injuries. There were reactions to her post from L.N.’s family and from his. [ 52 ] He was eventually arrested in Plaza Alexis Nihon, on February 7 th 2017. [ 53 ] He was homeless February 5 th and 6 th . M.N. is of the opinion that L.N. is not mad at him because he cheated on her in the past.

Issues [ 54 ] The Court has to address the following issues: 1- Credibility 2- Has the Crown proved beyond a reasonable doubt that M.N. is L.N.’s aggressor in Inukjuak on February 1 st 2017? 3- Has the Crown proved beyond a reasonable doubt that M.N. committed the following offences: • Aggravated assault (

section 268 ) • Death threats (section 264.1(1)a)) • Unlawful confinement ( section 279(2) ) • Assault with a weapon (

section 267 a)) 4- Has the Crown proved beyond a reasonable doubt that M.N. assaulted L.N. in Montreal on or about February 6 th 2017. Credibility [ 55 ] The Court is faced with two versions of what happened to L.N. According to the Supreme Court in R. v. W.(D). [1] , the Court must address herself the following questions: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 56 ] The Court does not believe the accused’ testimony when he denies being L.N.’s aggressor. [ 57 ] M.N. has an extensive criminal record, approximately 70 convictions, from November 2001 to June 2015. A multiplicity of convictions are for

section 145 offences (breach of conditions). These

section 145 convictions, altogether with the others, adversely affect M.N.’s credibility because of the number of convictions and their repetition. [ 58 ] Consequently, the Court is of the opinion that the Quebec Court of Appeal’s following passage in the case of Tremblay [2] applies to the facts of the present case: 18.Furthermore, persistent contempt for the law is relevant to assessing a witness’ credibility. It may be inferred that an individual who repeatedly breaks the law has little respect for the truth and is therefore more likely to lie.

[ 59 ] The fact that M.N. did not bother to look outside Marylin’s house, when L.N. arrived, to see if her aggressors were there is also implausible. Since L.N. was his girlfriend, and that she was pregnant with his child, it was certainly his business to see if her aggressors were in the vicinity. [ 60 ] Furthermore, M.N.’s testimony is unbelievable and implausible if, like he said, he is not L.N.’s aggressor.

Why wait around for 3 hours to get help if his girlfriend is severely injured, in pain and he puts his head to her stomach to hear the foetus with no heartbeat. [ 61 ] Finally, the accused was impatient many times during his cross-examination. Consequently, M.N.’s testimony is totally disbelieved by the Court when he denies being L.N.’s aggressor for the February 1 st and 6 th incidents. [ 62 ] Also, for the reasons just mentioned, M.N.’s testimony does not raise a reasonable doubt when he denies being L.N.’s aggressor for either incidents.

Rest of evidence: L.N.’s testimony and medical evidence [ 63 ] The Court, on the basis of L.N.’s testimony and the medical evidence, is convinced beyond a reasonable doubt that Moses Nutaraluk is L.N.’s aggressor concerning the incidents of February 1 st and February 6 th 2017. [ 64 ] The Court believes L.N.’s testimony when she says that M.N. is the one who hit her on February 1 st and February 6 th 2017. Her testimony concerning the assaults is truthful, sincere and corroborated in large part by the medical evidence concerning her injuries.

The Court finds her evidence reliable. [ 65 ] The fact that she lied about who assaulted her when she was at the clinic in Inukjuak, the hospital in Puvirnituk, and the hospital in Montreal is explainable by the fact that she was just beaten by the accused and that he asked her to lie about it. Also, the accused was present with L.N. in Inukjuak and Puvirnituk. Finally, she did admit to having lied on those occasions in open court. [ 66 ] The fact that she reunited with the accused in Montreal after what just happened in Inukjuak is consistent with her testimony to the effect that she loved him.

When she started her evidence, L.N. seemed at first reticent to describe what happened. But her first words were practically “I loved him”. [ 67 ] Also, courts must guard against applying false stereotypes concerning the expected conduct of complainants [3] . The reasonableness of reactive human behavior in the dynamics of a relationship can be variable and unpredictable [4] . [ 68 ] Finally, the credibility and reliability of the complainant’s evidence is not adversely affected by her reticence to testify about M.N. seeing and kissing an ex-girlfriend in Montreal.

It is unbelievable and implausible for L.N. to falsely accuse M.N. of very serious offences and testify under oath about it because M.N. supposedly kissed an ex-girlfriend. Moreover, according to M.N., L.N. was not mad at him because of past infidelities. Aggravated Assault [ 69 ]

Section 268 of the Criminal Code provides that: 268

(1) Everyone commits an aggravated assault who wounds, maims, or disfigures.” [ 70 ]

Section 267

b) is an included offence to

section 268 of the Criminal Code : 267: Everyone who, in committing an assault, (

b) causes bodily harm to the complainant, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding eighteen months. [ 71 ] The Court rules that the Crown has proved beyond a reasonable doubt that the accused committed an aggravated assault. After reviewing all of the evidence, the Court is of the opinion that the accused wounded L.N. The accused struck the complainant multiples times. He punched her in the face, chest, and stomach. He kicked her very hard in the stomach while she was lying on the floor.

These actions constitute an assault. [ 72 ] The Mens Rea of the offence is the Mens Rea of an assault plus the objective foresight of bodily harm, and does not require proof of an intent to maim, wound or disfigure [5] . Also, knowledge of the risk of bodily harm includes, in addition to willful blindness, recklessness. The evidence is clear that by hitting L.N. the way he did, M.N. had the requisite objective foresight of bodily harm. The Actus Reus and Mens Rea have therefore been proven beyond a reasonable doubt.

[ 73 ] Since the descriptive terms used in

section 268 to define an aggravated assault are not otherwise defined in the Criminal Code , dictionary

definitions are of assistance. Black’s Law Dictionary (4 th ed) defines “wounds” as: An injury to the body of a person or animal, especially one caused by violence, by which the continuity of the covering, as skin, mucous membrane, or conjunctiva, is broken. [ 74 ] The important tearing of L.N.’s placenta (P-2) is a wound according to

section 268 of the Criminal Code . Judicial Notice [ 75 ] The Court takes judicial notice of the meaning of a placenta. A placenta is, according to the Oxford dictionary, a flattened circular organ in the uterus of pregnant eutherian mammals, nourishing and maintaining the foetus through the umbilical cord. [ 76 ] According to the authors David M.

Paciocco and Lee Stuesser, judicial notice is: The acceptance by a court, without the requirement of proof, of any fact or matter that is so generally known and accepted in the community that it cannot be reasonably questioned, or any fact or matter that can readily be determined or verified by resort to sources whose accuracy cannot reasonably be questioned [6] . Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by a cross-examination.

Judicial notice of adjudicative facts extends to facts capable of ready determination by resort to sources of indisputable accuracy. Although the facts discovered may not be generally known, their accuracy is easily verified by going to sources that ordinary, reasonable people wouId consult. Common examples include reference to calendars to match days and dates, or to maps to determine distance and location. [ 77 ] In R. v.

Krymowski [7] , the Supreme Court of Canada recognized that dictionary meanings were another “source of indisputable accuracy”. [ 78 ] The evidence accepted by the Court demonstrates beyond a reasonable doubt that M.N. is responsible for the important tearing of L.N.’s placenta.

The types of blows and kicks given by the accused, the place were those blows and kicks landed on L.N.’s body, the time at which they were given, the time of L.N.’s arrival at the clinic, the time of the examination at the Clinic and P-2 and P-3, all demonstrate beyond a reasonable doubt that M.N. is responsible for the tearing of L.N.’s placenta.

The foetus [ 79 ] The Court is satisfied beyond a reasonable doubt that M.N.’s actions are a significant contributing cause of death of the foetus, and of the end of L.N.’s pregnancy because: • The 420 g nonviable foetus was lost; • The definition and nature of what a placenta is; • The placenta’s role with the foetus; • The important tearing; • The fact that the accused is criminally responsible for the important tearing of L.N.’s placenta; • The time of the beating and the time when no heartbeat was found on the foetus at the clinic in Inukjuak (4h15, 4h25, 7h35). [ 80 ] In Hutchinson [8] , the majority of the Supreme Court assimilates changes caused by a pregnancy to a significant risk of serious bodily harm: [70] The concept of “harm” does not encompass only bodily harm in the traditional sense of that term; it includes at least the sorts of profound changes in a woman’s body — changes that may be welcomed or changes that a woman may choose not to accept — resulting from pregnancy.

Depriving a woman of the choice whether to become pregnant or increasing the risk of pregnancy is equally serious as a “significant risk of serious bodily harm” within the meaning of Cuerrier, and therefore suffices to establish fraud vitiating consent under s. 265(3)(c). [ 81 ] Conversely, it would also be coherent that the death of the foetus occurring concurrently as an important tearing of the placenta caused by the accused is serious enough to constitute a wound according to

section 268 of the Criminal Code . [ 82 ] If depriving a woman of the choice of becoming pregnant is a significant risk of serious bodily harm, depriving a woman of her right to continue her pregnancy because she loses the foetus after an illegal assault constitutes, in the circumstances of the present case, a wound, and therefore, an aggravated assault. Expert Evidence [ 83 ] In Smithers [9] , the Supreme Court states:

The jury was not limited to the evidence of the medical experts. In considering the issue of causation the jury had the benefit of uncontradicted evidence of a number of lay witnesses to the effect that the appellant kicked the deceased boy in the stomach area, that the kick was followed by immediate distress, and that the death occurred within minutes. This was cogent evidence to which the jury could apply common sense in considering, the issue of causality. [ 84 ] The Quebec Court of Appeal, in A.N. v.

R. [10] underlines that sometimes the facts, without expert evidence, are sufficient to establish proof of causation: [106] In this case, the fainting of X was certainly not trifling even though it may have been transient. The fainting constitutes bodily harm and is an indication that the act (the cold shower) caused such interference with X’s health by an effect (hypothermia) on his system which resulted in a loss of consciousness. There was no expert evidence.

However, the facts speak for themselves as to the causal link between the cold shower and the loss of consciousness. [ 85 ] Expert evidence was not necessary in the present case for the Court to conclude that: • M.N. wounded the complainant; • M.N.’s actions are a significant contributing cause of death of the foetus and of the end of L.N.’s pregnancy. [ 86 ] Finally, the Court underlines that although the Crown has proved beyond a reasonable doubt that the accused caused the tearing of L.N.’s placenta, and that as a result, L.N.‘s fœtus died and her pregnancy ended, the evidence is not sufficient to conclude that the baby would necessary have been born if not for the accused’s actions.

Bodily Harm [ 87 ] The Court is of the opinion that the following injuries constitute bodily harm according to

section 267

b) of the Criminal Code ; • The extensive brusing on L.N.’s face, arms, back and abdomen; • The lacerations on her face; • The left nasal bone fracture. [ 88 ] These injuries, while not constituting “wounds” according to

section 268 of the Criminal Code , encompass “bodily harm” according to

section 2 of the Criminal Code because they are more than merely transient or trifling in nature. [ 89 ] For reasons already mentioned, the Court is of the opinion that the Crown has proved beyond a reasonable doubt that these injuries were caused by M.N.’s assault against L.N. on February 1 st 2017. Section 279(2) – Unlawful confinement [ 90 ] Section 279(2) of the Criminal Code is to the effect:

(2) Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of; [ 91 ] The offence under this subsection does not require proof of total physical restraint [11] .

If for any significant period of time, the complainant is coercively restrained or directed contrary to her wishes so that she cannot move according to her own inclination and desire, the offence of unlawful confinement is established [12] . [ 92 ] Unlawful confinement is a general intent offence that requires the prosecution to prove only the minimal intent to effect deprivation of freedom of movement [13] . [ 93 ] In the present case, the prosecution has failed to prove beyond a reasonable doubt the offence of unlawful confinement contrary to section 279(2) of Criminal code . [ 94 ] Proof was not made beyond a reasonable doubt that L.N. was “coercively restrained” contrary to her wishes for any significant period of time.

The evidence presented to the Court is silent as to the length of time L.N. was restrained when M.N. grabbed her by the hair and hit her to prevent her from leaving Marylin’s house.

Section 267(a) – Assault with a weapon [ 95 ]

Section 267 (

a) of the Criminal Code states: Every one who, in committing an assault, (

a) carries, uses or threatens to use a weapon or an imitation thereof, or [ 96 ] In the present case, proof was made beyond a reasonable doubt of the commission of the offence. M.N. was with L.N. He had a knife in one of his hands, and he threatened to kill L.N. with it.

Section 264.1(1)(a) – Death threats [ 97 ]

Section 264.1 (

a) of the Criminal Code states: 264.1

(1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat: (

a) to cause death or bodily harm to any person; [ 98 ] The Court, for reasons given earlier concerning the issue of credibility, is convinced beyond a reasonable doubt that the following words were pronounced by the accused: “If someone comes again, I will kill you with that knife”. [ 99 ] Clearly, in the context in which they were uttered, these words constitute a threat to cause death contrary to

section 264.1(1) of the Criminal Code . Assault in Montreal on or about February 6 th 2017 [ 100 ] An issue arose at the end of the trial concerning count #5 of the Information. The English version of the Information mentioned Inukjuak and the evidence was to the effect that the facts took place in Montreal. [ 101 ] The amendment concerning the location where the assault supposedly occurred on February 6 th 2017 was made in court on February 9 th 2017.

The court record shows that count #5 of the Information was modified to substitute Montreal for Inukjuak. [ 102 ] For reasons already mentioned concerning the issue of credibility, the Court is convinced beyond a reasonable doubt that on February 6 th , in Montreal, M.N. grabbed L.N., pulled her to the ground and also punched her. These acts constitute an illegal assault contrary to

section 266 of the Criminal Code . FOR THESE REASONS; the Court finds the accused: [ 103 ] GUILTY on count 1 (

section 268 - aggravated assault); [ 104 ] GUILTY on count 2 (

section 264.1(1) (a) – uttering death threats); [ 105 ] NON GUILTY on count 3 ( section 279(2) (a) – unlawful confinement); [ 106 ] GUILTY on count 4 (

section 267 (a) – assault with a weapon); [ 107 ] GUILTY on count 5 (

section 266 (a) – assault). [ 108 ] Because of the Kienapple [14] principle, the Court orders a conditional stay of proceedings on count 2 (

section 264.1 – uttering death threats) because the threats are part of the facts constituting the assault with a weapon in count 4 (section 267(a) – assault with a weapon). __________________________________ ALEXANDRE ST-ONGE, J.C.Q. Me Nathalie Lachance PROCUREURE DU DIRECTEUR DES POURSUITES CRIMINELLES ET PÉNALES For the Prosecution Me Nicolas Welt

AIDE JURIDIQUE DE MONTRÉAL For the accused Date of hearing: May 30 and 31, June 12 and 16, 2017