r v. MARIE-CAROLINE S, 2017 QCCA 954

R. c. Sénécal 2017 QCCA 954 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006033-151 (500-01-083971-132) DATE: JUNE 8, 2017 CORAM: THE HONOURABLE NICHOLAS KASIRER, J.A. MARTIN VAUCLAIR, J.A. MARIE-JOSÉE HOGUE, J.A. HER MAJESTY THE QUEEN APPELLANT – Prosecutor v.

MARIE-CAROLINE SÉNÉCAL RESPONDENT – Accused JUDGMENT [ 1 ] The Crown appeals from a judgment of the Court of Quebec, District of Montreal (the Honourable Judge Jean-Paul Braun), rendered orally on October 16, 2015, which acquitted Marie Caroline Sénécal of a charge of having assaulted a police officer, contrary to subsection 270(1) Cr.C . [1] [ 2 ] The Crown’s principal argument in support of its appeal is that the judge erred in law in requiring proof of the respondent’s intent to assault the specific victim of the crime alleged. *** [ 3 ] The main facts are not in dispute.

Conflicting evidence was given at trial as to the conduct of the respondent that resulted in the charge of assaulting a police officer. [ 4 ] The police first attended the respondent’s residence at about 9 pm on January 10, 2013. They came in response to a complaint by her spouse relating to alleged incidents of domestic violence and of the respondent’s unauthorized taking of a vehicle. The respondent was absent. Six or seven police officers returned after midnight with a view to arresting her, including Officer Marin, the supervising officer. [ 5 ] The respondent was awake in bed in her underwear.

The bedroom was very small; several police officers were gathered at the door. When told by a female officer that the police were there to arrest her, the respondent refused to get up. She behaved in an aggressive manner and, according to the officers present, had the smell of alcohol on her breath. The officers lifted her forcibly from the bed. [ 6 ] The respondent asked to go to the bathroom, claiming that she was menstruating. She was told that she could not go at that time. The respondent then defecated in her underwear while standing. She removed her underwear, which was soiled with diarrhoea.

She projected the underwear. The soiled underwear struck Officer Marin in the face. [ 7 ] According to the account given by three police officers called at trial, including Officer Marin, the respondent threw the underwear with her hand in the direction of the officers and that she was only handcuffed thereafter. [ 8 ] The respondent testified that after she was taken from bed, the police officers had immediately handcuffed her. She said that after soiling her underwear, she then manoeuvred to get her underwear to the floor and then threw the underwear with her leg.

She said that she sought to project the underwear towards the bed, which was not in the direction of the officers at the door. *** [ 9 ] In short reasons rendered orally, the judge acquitted the respondent of the charge of assaulting a police officer. [ 10 ] The only issue before the judge was whether the respondent had applied force intentionally as required by subsection 270(1) Cr.C . [ 11 ] The judge noted that the Crown and the defence offered different versions as to how the underwear was projected by the

respondent and hit Officer Marin. One of the officers who testified produced a sketch of the bedroom showing the emplacement offurniture and where the various persons were in the room. When the respondent testified in her own defence, she filed photos of thebedroom. (These exhibits were not reproduced in the record on appeal). [12] Without expressing citing R. v.

W.(D.), (SCC), [1991] 1 SCR 742, the judge applied the method set forth in thatcase in order to determine whether the Crown had met its burden of showing that the elements of the offence were proven beyond areasonable doubt. [13] First, the judge rejected the account given by the respondent that she had shifted to remove her underwear before throwing itwith her leg as “completely unbelievable”. The judge then considered the whole of the evidence, including that given by the policeofficers.

He stated that there was a reasonable doubt in respect of the accused’s intent required for the offence: […] if at the first stage I didn’t believe her, if at the second stage I don’t give credit to her testimony, I still have to examine the proof ofthe prosecution and one of the elements that the prosecutor must establish beyond a reasonable doubt, its not only the fact that constableMarin received the panty on his face but that there was the intention of the defendant to assault constable Marin.

Taking into account the size of the bedroom, taking into account that there were one, two, three, four, five, six seven police officers inthe bedroom, I have a doubt about her intention to hit constable Marin because she could have hit other police officers that were in-between constable Marin and her. I think it was a reaction of "colère" but she was refused to go to the toilet, because she wasn't getting upfrom her bed fast enough.

So, I have a reasonable doubt on her intention to hit constable Marin and I again sympathize with constable Marin who showed very... avery professional attitude and testimony, both at the time and during his testimony because obviously, this is not a way to act. So,Madam Sénécal, you're acquitted on the benefit of the doubt. That's all. Monsieur le greffier, je vous remets les pièces. *** [14] The appellant raises four arguments on appeal:

a) the judge erred in law in holding that the Crown was required to prove that the respondent intended to assault Officer Marinspecifically, as opposed to the group of officers of which Marin was part;

b) the judge erred in law in failing to recognize that recklessness is sufficient to satisfy the mens rea of the offence;

c) the judge erred in law in confounding motive and intent in his analysis of mens rea; and

d) the judge erred in law in holding that “frustration” can amount to a justification defence in Canadian law. [15] In its conclusions, the appellant asks that the Court quash the acquittal and substitute a guilty verdict and remit the matter backto Court of Québec for the respondent’s sentencing. Alternatively, the Crown asks the Court to order a new trial. *** [16] The appeal should be allowed and a new trial ordered. It is only necessary to answer the appellant’s first question.

a) Error in respect of the intent required under subs. 270(1) Cr.C. [17] The appellant submits that once it was established that the respondent knew the persons at her bedroom door were policeofficers in the performance of their duties, the Crown needed only to show the same mental element required in respect of commonassault to obtain a conviction: the mens rea of general intent. [18] By requiring proof that the respondent “intended to assault constable Marin”, the judge erred in law.

More precisely, says theappellant, when the judge acquitted the respondent because, as he stated, “I have a doubt about her intention to hit constable Marinbecause she could have hit other police officers that were in-between constable Marin and her”, and when he similarly stated “I have areasonable doubt on her intention to hit constable Marin”, the judge wrongly required a form of specific intention, or at least an intent inrespect of a specific victim, for a conviction. [19] The respondent does not contest that, in the circumstances, the applicable mental element was that of general intent associatedwith common assault.

The offence of common assault requires an accused to apply force intentionally, with intent to hit or harm, butdoes not require the intent to harm a specific person. [20] The respondent argues, however, that the judge made no mistake in acquitting the respondent and that the appellant hasmisunderstood the judgment. [21] When read in context, says the respondent, the judge’s statement that the projectile could have hit other officers in-betweenOfficer Marin and herself meant only that the underwear was thrown by the respondent in a “haphazard manner” and may well havelanded anywhere.

The judge did not expressly state that the respondent had to evince the intent to hit Officer Marin in order to justify aconviction. Moreover, the appellant fails to recognize that the judgment was rendered orally, and seeks to parse the judgment in anoverly exacting manner that deflects from its true message. [22] With the utmost respect for the judge, the Court is of the view that the judgment states the applicable law incorrectly.

This errorof law means the acquittal must be set aside. [23] First, it is plain that the Crown had the burden of proving general intent and did not have to show that the respondent intended tohit Office Marin specifically. It is settled law that the mens rea for common assault, pursuant to paragraph 265(1)(

a) Cr.c. is general

intent to apply force without consent: see R. v. Tatton, 2015 SCC 33 , [2015] 2 SCR 574, para. [35]. The Crown is not requiredto prove that the accused intended to apply force to a particular person: R. v. Divina, 2008 ABPC 98, citing R. v. George, (SCC), [1960] SCR 871.

Given that the respondent knew the persons in her bedroom were police officers, the remaining mental elementto be proven was general intent to apply force. [24] The plain meaning of the words used by the judge is his reasons for judgment suggests instead that the Crown had a heavierburden, i.e. that of proving the intent to apply force to Officer Marin specifically. [25] The Court is mindful that the judgment was rendered orally and that courts of appeal should be cautious before they apply toorigid standards in interpreting judgments rendered in such circumstances: see, e.g., Joad v.

R., 2016 QCCA 1940, para. [14]. But thejudgment states in three separate instances that the mental element was the intention to hit Officer Marin. [26] As this Court recalled in LSPA – 152, 2015 QCCA 39, para. [3], courts of appeal are sometimes called upon “to read betweenthe lines” and not to ignore “implicit” meaning in oral judgments.

But in LSPA – 152, the Court stated that an appellate court cannotengage in speculation as to what a trial judge meant. [27] In asking us to accept that the judge meant that the respondent threw her underwear in a haphazard manner, without theintention of striking anyone, her counsel invites the Court not only to ignore the plain meaning of the text of the judgment, but also tospeculate as to what the judge really meant. Nowhere does the judge state that the incident was an accident or even the result of simplenegligence.

Instead, he states that the respondent threw her underwear in a manner that could have hit other officers. Indeed, the judgenoted that there were numerous officers in a very small space. If anything, this comforts the

interpretation advanced by the appellant thatthe judge mistakenly acquitted the respondent because he had a reasonable doubt that she intended to apply force to Officer Marinspecifically, as opposed to a general intent to apply force without regard to a particularized victim. [28] Given the presence of this error of law, should the Court allow the appeal and enter a guilty verdict or is a new trial theappropriate remedy in the circumstances? [29] On appeal from an acquittal pronounced by a judge sitting alone, paragraph 686(4)(b)(ii) Cr.C. allows courts of appeal to setaside the acquittal and enter a guilty verdict when the accused should have been found guilty but for the error in law.

In so doing,however, the appellate court cannot draw its own factual conclusions in order to sustain a new guilty verdict: see, e.g., R. v. Cogger, (SCC), [1997] 2 SCR 845, paras 33-4.

Author Tristan Desjardins explains as follows: 546. […] Ainsi, une cour d’appel ne peut prononcer une déclaration de culpabilité lorsque les faits au dossier sont incomplets puisqu’ellene peut alors être convaincue que toutes les conclusions nécessaires au soutien d’un verdict de culpabilité ont été tirées ou ne sont pascontestées. (Desjardins, L’appel en droit criminel et pénal, 2nd ed., (Montreal: LexisNexis, 2012)). [30] The present file is, to use Me Desjardins’ word, “incomplete”.

As noted above, the trial judge had in hand a sketch made by oneof the police officers of the bedroom in which the incident occurred, as well as photographs filed by the respondent, and these have notbeen reproduced in the record on appeal. [31] This evidence could well enlighten a trier of fact as to whether, given the configuration of the room and where the officersstood, the incident could have been an accident, or the result of negligence, or whether the conduct of the respondent reflected asubjective mens rea consonant with the offence as charged. [32] It would be imprudent, and indeed possibly unfair, to decide that matter on appeal based on the incomplete record.

Furthermore,the question as to whether or not proof of recklessness, as opposed to general intent, is sufficient for a conviction was not argued at trial,and one might well imagine the parties adducing different evidence, and making different arguments, had it been pleaded before thejudge of the Court of Québec. [33] The acquittal should indeed be set aside by reason of the error of law but a new trial should be ordered. [34] In the circumstances, it is not necessary to answer the other questions raised by the appellant.

FOR THE AFOREMENTIONED REASONS, THE COURT: [35] ALLOWS the appeal; [36] SETS ASIDE the judgment of the Court of Québec; [37] ORDERS a new trial.

NICHOLAS KASIRER, J.A. MARTIN VAUCLAIR, J.A. MARIE-JOSÉE HOGUE, J.A. Mtre Laurent-Alexandre Duclos-Bélanger Director of Criminal and Penal Prosecutions For the Appellant Mtre Maxime Hébert Lafontaine Latour Dorval For the Respondent Date of hearing: June 8, 2017