2017 QCCA 1856, 2017 QCCA 1856

Tremblay c. R. 2017 QCCA 1856 COUR D'APPEL CANADA PROVINCE DE QUÉBEC GREFFE DE MONTRÉAL N o : 500-10-006212-169 (450-01-094923-153) PROCÈS-VERBAL D'AUDIENCE DATE : Le 23 novembre 2017 CORAM : LES HONORABLES GENEVIÈVE MARCOTTE, J.C.A. MARK SCHRAGER, J.C.A. CLAUDINE ROY, J.C.A. APPELANT AVOCATE MARC TREMBLAY m e CAROLINE ST-ANDRÉ ( Centre communautaire juridique de l'Estrie ) INTIMÉE AVOCATE SA MAJESTÉ LA REINE Me ANN ELLEFSEN-TREMBLAY (Directeur des poursuites criminelles et pénales) En appel d'un jugement rendu le 23 juin 2016 par l'honorable Hélène Fabi, Cour du Québec (Chambre criminelle), district de Saint- François. - Requête pour permission d'appeler déférée

NATURE DE L'APPEL : Culpabilité - Agression sexuelle Greffier d’audience : David Champigny Salle : Antonio-Lamer AUDITION 10 h 39 Début de l’audience 10 h 40 Début de l’argumentation de Me Caroline St-André 10 h 46 Échange entre la Cour et Me St-André 11 h 05 Suspension de l’audience 11 h 22 Reprise de l’audience PAR LA COUR : Arrêt – Voir page 3 Fin de l’audience

David Champigny Greffier d’audience PAR LA COUR ARRÊT [ 1 ] This is an appeal on a question of law, and a motion seeking to appeal a mixed question of fact and law regarding the judgment of the Court of Quebec, District of St-François (the Honourable Hélène Fabi), rendered on June 23, 2016, wherein the Appellant was found guilty of sexual assault pursuant to s. 271 (

a) of the Criminal Code . [ 2 ] The victim was a resident in a detoxification and rehabilitation centre where the Appellant, also a resident, performed the function of a night watchman. The victim complained that, on one night, Appellant entered her room (contrary to regulations) and assaulted her as she lay in bed by inserting two fingers into her vagina and attempting to place his tongue in her mouth. Within the next month, he, on one occasion, grabbed her breast while they were in the chapel of the centre in the presence of other residents, one of which testified at the trial.

On another occasion, he touched her breast while they were smoking a cigarette, again in the presence of another resident, who testified to such effect. [ 3 ] After a detailed review of the evidence, the judge concluded that the Appellant’s testimony was not credible taken in the context of the proof as a whole, particularly because he denied authorship of a letter handed to the victim and because of admissions made to one of the other residents who also testified at trial. [ 4 ] The judge did not believe the Appellant, nor did his testimony raise a reasonable doubt in her mind.

Furthermore, the judge concluded that the victim gave credible and reliable testimony which was detailed and free from contradiction, and which was corroborated by two witnesses. Thus, the judge was convinced beyond a reasonable doubt of the Appellant’s guilt. [ 5 ] The issues raised by Appellant on appeal distill to the analysis of his credibility in the framework of R. v.

W.(D) , [1] the reasonableness of the verdict and the sufficiency of the reasons for judgment. [ 6 ] The judge certainly enunciated correctly the principle drawn from W.(D.) : [106] Selon les principes bien établis par la Cour suprême du Canada, le Tribunal, après avoir analysé l’ensemble de la preuve, doit d’abord se demander s’il croit l’accusé ou si sa version suscite néanmoins un doute raisonnable dans son esprit, auquel cas, il doit l’acquitter.

Dans la négative, le Tribunal doit déterminer si la preuve dans son ensemble étaye, et ce, hors de tout doute raisonnable, tous les éléments constitutifs des infractions reprochées. Si tel est le cas, l’accusé doit être déclaré coupable. [ 7 ] The judge also applied the foregoing correctly by first evaluating the probative value of the Appellant’s testimony in the light of the evidence as a whole and as part of such exercise examining his credibility.

The judge concluded that she did not believe the Appellant who had flatly denied the victim’s allegations and, specifically, the three instances of sexual assault. [ 8 ] Contrary to Appellant’s assertion, the judge did not reject his testimony simply because of the generality of his denial.

Rather the judge tied Appellant to the letter produced by the victim, and referred to above, by observing that it was 1) written by someone whose mother tongue was not French given the spelling and syntax errors and 2) used the same word “gars” to refer to the victim’s son as did the Appellant during his testimony. [ 9 ] Based on her disbelief of Appellant’s denial of the authorship of the letter, the judge analyzed his denial of the sexual assaults against the evidence tendered by the prosecution.

This evidence included Appellant’s opportunity as a night watchman to commit the assault in the victim’s room and the testimony of another resident who reported Appellant’s admission of the act during a conversation. The judge also believed the victim and the other witnesses of the two assaults consisting of the touching of the victim’s breast. [ 10 ] The judge believed the victim despite some contradictions, specifically addressed by the judge.

The victim’s testimony was deemed precise and detailed despite differences or contradictions with other witnesses regarding who was present and in what order they sat in the chapel during one of the touching incidents. This did not change the proof contradicted only by Appellant that he did indeed touch the victim’s breast. The judge remarked that there was never any contradiction or variation in the versions of the victim and other witnesses on the precise nature of the assaults suffered by the victim. The contradictions pertained to collateral facts only.

As well, the victim’s testimony was consistent with the Appellant’s admission spoken to one of the other residents. [ 11 ] On the basis of the probative value of the evidence as a whole after the judge’s analysis of the credibility of the victim and other witnesses, there was sufficient evidence to conclude in Appellant’s guilt beyond a reasonable doubt. [2] [ 12 ] In her reasons covering 19 pages, the judge analyzed the evidence as a whole in detail and set out in a cogent manner why she rejected the testimony of the Appellant and why she believed the victim and the other witnesses to conclude in the Appellant’s guilt.

Each element of potentially conflicting evidence need not be described in the judgment in order that the reasons be deemed sufficient. [3] FOR ALL OF THE FOREGOING REASONS, THE COURT:

[ 13 ] GRANTS leave to appeal on mixed grounds of fact and law; and [ 14 ] DISMISSES the appeal. GENEVIÈVE MARCOTTE, J.C.A. MARK SCHRAGER, J.C.A. CLAUDINE ROY, J.C.A.