2022 QCCA 1611, 2022 QCCA 1611

K.C. c. R. 2022 QCCA 1611 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL N° : 500-10-007493-214 (760-01-094235-196) DATE : November 30, 2022 CORAM: THE HONOURABLES JULIE DUTIL, J.A. PATRICK HEALY, J.A. STÉPHANE SANSFAÇON, J.A. K. C. APPELLANT – Accused v.

HIS MAJESTY THE KING RESPONDENT – Prosecutor JUDGMENT WARNING : Order restricting publication: On December 21, 2020, the Court of Quebec (the Honourable Joey Dubois), District of Beauharnois, made an order under s. 486.4(1) Cr.C . directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way . [ 1 ] This is an appeal against twelve findings of guilt by the Court of Quebec, District of Beauharnois (the Honourable Joey Dubois), on multiple sexual offences committed against the appellant’s adoptive daughters, X and Y, while they were young girls. [1] There is also a finding of guilt on a charge of assault against Y. [ 2 ] The appellant raises two grounds.

Both are concerned with issues of credibility. The first claims that in the application of the principles in W.D. [2] the trial judge attributed too much weight to the demeanour of the complainants when they testified. The second is that the judge erred in his application of the principle in Browne v. Dunn . [3] [ 3 ] The core of the prosecution case was the evidence of the two complainants, who each testified that the appellant had committed multiple acts of a sexual nature against them over several years. The defence was total denial. The appellant testified, as did his spouse and several sons.

The theory of the defence was a lack of opportunity to commit the offences, either because the appellant was not present in the family home or, when he was present, that he was not alone with the complainants where the offences allegedly occurred. [ 4 ] The evidence for the prosecution and the defence was contradictory and the resolution of the case was governed by the principles in W.D. The trial judge concluded that he did not believe the appellant’s testimony and that it left him with no reasonable doubt.

The judge was thus required to determine whether at the end of the case and on the whole of the evidence the prosecution had proved the guilt of the appellant beyond reasonable doubt. The credibility of the witnesses was central to this determination. [ 5 ] Credibility is chiefly a matter of facts for the assessment of the judge after consideration of all the evidence, including any consistencies, gaps or contradictions.

This assessment demands broad deference on appeal and appellate intervention on this issue is permissible only if the judge’s assessment demonstrates palpable and overriding error. [4] To assess the credibility of a witness’s testimony a judge is entitled to consider his or her demeanour, subject to a broad caution against the possibilities of exaggeration or error. [5] Demeanour is a circumstantial feature of the presentation of evidence, perceptible by the trier of fact, that can assist the assessment of credibility.

But at most it is only one element among many that can assist an informed assessment of the credibility of any and all witnesses. [ 6 ] The appellant is right to note that in any case, but especially a case of conflicting or contradictory evidence, demeanour could not be the sole basis on which to determine whether a witness is credible.

By its nature such a case compels an assessment of the coherence and consistency of a witness’s testimony when examined by itself and a close and equal assessment of it in relation to all other material evidence presented by the parties, including the testimony of any other witness. Only by such particularized and comparative assessment of the evidence can the trier of fact conclude whether evidence is credible and reliable – for one party’s case or another’s, or neither.

In this regard it is self-evident that demeanour alone will never be sufficient to support a conclusion that a witness’s testimony is credible and that the testimony of another witness is not. Demeanour in this respect is about how a witness performs when speaking under oath to tell the truth; demeanour cannot prove that what the witness says is true. [ 7 ] The parties to this appeal do not dispute these principles. But the appellant’s specific claim is that the trial judge gave undue

weight to the complainants’ demeanour in the assessment of their testimony and thus failed to consider adequately other elements of the evidence before concluding that the complainants were credible. This claim that the judge gave exaggerated importance to the demeanour of the complainants is itself an exaggeration of what the judge did. [ 8 ] The judge reminded himself that the demeanour of a witness must be approached with caution and that the trier of fact must be aware of the risks, such as fabrication or mistake by the witness, that accompany reliance on this consideration.

By doing so the judge affirmed that demeanour alone could not determine credibility. He considered the testimony of their mother, which contradicted that of the complainants, and concluded after detailed examination of the contradictions that despite the mother’s denials of various assertions made by her daughters the credibility of their testimony remained.

Finally, after close examination of the complainants’ testimony and further examination of contradictions with that of their mother, the judge also evaluated the credibility of the complainants in conjunction with the other testimony presented by the defence. [ 9 ] It is not possible to sustain the submission that the trial judge afforded undue weight to the complainants’ demeanour in his evaluation of the credibility of their testimony.

It follows that this court cannot identify palpable and overriding error in the assessment of the trial judge and for this reason, as has been said repeatedly, the Court must not intervene on this ground of appeal. [6] The principle in Browne v. Dunn [ 10 ] In the second ground the appellant claims that there was a violation of the principle in Browne v. Dunn on two points. The first point [ 11 ] The complainant X testified that the appellant left the family home in 2016. In the course of the trial several reasons emerged as possible explanations for his departure or absence.

The complainant X testified that she had said that if he did not leave she would expose his abuse of her. The appellant testified that he left because X and Y had informed his wife that he had conducted an extramarital liaison. Another possible reason was his work. The trial judge concluded that the defence breached the principle in Browne v. Dunn by failing to cross-examine X adequately on the reasons for which the appellant left in 2016, thus exposing the prosecution to ambush by the subsequent disclosure of the reasons given in the appellant’s testimony.

The appellant claims that the judge erred in finding a breach of the principle and further in his conclusion that the consequence of this breach adversely affected an assessment of the appellant’s credibility. The second point [ 12 ] On the second point the complainant Y had testified that in the last incident of sexual assault the appellant had urinated on her and that her mother had asked about the soiled sheets when she saw them in the laundry.

Y testified that she told her mother that the urine was the appellant’s but the mother testified that Y had not told this and that Y had been a bed-wetter until the age of twelve. The appellant claims that the trial judge incorrectly invoked the principle in Browne v. Dunn in a manner that might be understood to impeach the credibility of the mother’s testimony. Discussion [ 13 ] The principle in Browne v. Dunn has two elements. First, it seeks to ensure that a party (

B) will not ambush the opposing party (

A) by subsequent contradictory evidence or impeachment without first having cross-examined party A’s witness in a manner that will adequately minimize the risk of ambush. Second, in the event that the risk of ambush has not been adequately minimised, the principle affords the judge considerable latitude to fashion a remedy for the subsisting risk of prejudice. [7] The principle has many permutations in practice but essentially these two parts require a determination whether the principle has been engaged and, if so, how to provide a sufficient remedy.

The first part seeks to enhance trial fairness and the second seeks to diminish prejudice. In short, the principle is not a shield against contradictory evidence or impeachment by an opposing party but against contradiction or impeachment by ambush and the prejudice that might be caused. [ 14 ] The degree of discretion afforded to judges under both parts of the principle in Browne v. Dunn makes plain that appellate intervention on such matters will be refused in the absence of palpable and overriding error. In the present case neither party raised the principle in Browne v.

Dunn and no objection was made that might resemble any aspect of that principle. This does not foreclose, of course, the possibility that judge made a reversible error. The first point again [ 15 ] The appellant claims that the judge was wrong to find a violation of the principle in Browne v. Dunn in his failure to cross- examine X adequately on the reasons for the appellant’s departure in 2016 and his alternative explanation for this departure in his own testimony in chief.

At the same time he claims that if the judge was right in this conclusion he failed to provide an adequate remedy against the risk of prejudice to which the appellant exposed himself by failing to respect the principle. [ 16 ] On this basis the appellant put himself, and now finds himself, in a situation where the judge considered the contradictory evidence of X and the appellant on the reasons for his departure as nothing more than a conflict in the evidence that would be evaluated like any other and without further regard for the specific principle in Browne v. Dunn .

The appellant chose not to cross-examine X in a manner consistent with that principle and later chose to give an alternative explanation in his own testimony. The judge thus assessed this aspect of the testimony given by X and the appellant, and other witnesses, for its inherent credibility and reliability in conjunction with the evidence as a whole. Moreover, it must be repeated that the specific explanation given by the appellant that he left due to information concerning his extramarital activities emerged in cross-examination.

[ 17 ] The choices made by the appellant at trial speak for themselves and it is for practical purposes impossible to affirm that in any sense the substance of the principle in Browne v. Dunn was breached. While it is clear that the judge found a breach of the principle of Browne v. Dunn , the appellant was not ambushed or even surprised by what occurred because the defence at trial created the situation of which the appellant now complains.

There is no indication that the conduct of the defence intended to impeach X or to contradict her evidence on the basis of the appellant’s explanation for his departure in 2016. It is impossible to affirm that any technical breach on this point, if there was one, caused prejudice to the appellant that called for a remedy.

The second point again [ 18 ] With respect to the conflict between Y and her mother on the question of the soiled sheets, there is no indication that the trial judge made an adverse inference concerning the credibility of the mother on the basis that Y was not further cross-examined on this issue. There is certainly no indication that the defence sought to contradict or impeach Y due to this conflict. As with the first point, the appellant was not ambushed by the prosecution because it was the defence that elicited from the mother the testimony that contradicted Y.

In short, the judge assessed the testimony of Y and the mother in conjunction with the rest of the evidence and found on the whole of the evidence ample detail to discount the credibility of the mother that left the testimony of Y unimpeached. In the result the appellant suffered no prejudice attributable to a breach of the principle in Browne v. Dunn because there was no breach. FOR THESE REASONS THE COURT : [ 19 ] DISMISSES the appeal. JULIE DUTIL, J.A. PATRICK HEALY, J.A. STÉPHANE SANSFAÇON, J.A.

Mtre Benjamin Wilner SHADLEY BIEN-AIMÉ Mtre Jordan Trevick For the Appellant Mtre Patrick Cardinal Ms Anne-Marie Dorval DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the Respondent Hearing date : November 28, 2022