2012 QCCA 282, 2012 QCCA 282

Decoursay c. R. 2012 QCCA 282 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No : 200-10-002560-105 ( 615-01-014106-085 ) MINUTES OF THE HEARING DATE : February 3 rd 2012 CORAM : THE HONOURABLE PAUL VÉZINA, J.A. (JV0409) JACQUES A. LÉGER, J.A. (JL3736) GUY GAGNON, J.A. (JG1348) APPELLANT ATTORNEY ROCKY DECOURSAY PERSONALLY (ABSENT) RESPONDENT ATTORNEY HER MAJESTY THE QUEEN AUDREY ROY-CLOUTIER (AA4082) (ABSENT) (Criminal and penal prosecuting attorney) In appeal of a judgment rendered on July 5 th 2010 by the Honourable Justice Claude P. Bigué of the Quebec Court, district of Abitibi.

NATURE OF THE APPEAL : Breaking and entering with intent to commit an indictable offence (2 counts) – Failing to comply with a probation order (3 counts) (guilty verdict) Clerk : Michèle Blanchette (TB3352) Court Room : 4.01 HEARING 9 h 32 Judgment. (

s) Court Clerk BY THE COURT JUDGMENT [ 1 ] This is an appeal from a judgment of the Court of Quebec, (Criminal and Penal Division), District of Abitibi (the Honourable Judge Claude P. Bigué) rendered on July 5 2010, which convicted the appellant Rocky Decoursay of five counts, two for breaking and entering a dwelling-house on July 3 and July 4, 2008 with the intent of committing an indictable offence ( paragraphs 348 (1) (

a) and (

d) of the Criminal Code ); and three for breach of the probation order prohibiting him from contacting the victim under paragraph 733.1 (1) (

a) of the Criminal Code . [ 2 ] The victim, who knows the accused very well as she lived with him for some years, testified at trial. She described in detail when and how she found him in her house, albeit uninvited, on two different occasions.

The first time, he was hiding under a bed in the basement, reading her personal diary, at which point she called the police; while the second time, he was hiding in her personal wardrobe. [ 3 ] As his sole defence to the victim's overall testimony, the accused reiterated on four occasions that at the time of his arrest on July 4, the police did not find him at the victim's house, but on Highway 117, where he was hitchhiking.

He added that the police, who were apparently trying to locate him at that time, ought to have gone first to his residence to verify if he was there. [ 4 ] The appellant's main ground of appeal is that the judge misconstrued the test enunciated by the Supreme Court in R. v. W.D. [1] in his appreciation of the evidence. [ 5 ] It is obvious from reading the record that nowhere does the judge choose or have to choose between the victim's and the appellant's respective versions of events.

The reason is very simple: his explanation as outlined above did not even attempt to refute the Crown's evidence of his presence in the victim's residence, nor rebut the legal presumption of the breaking and entering offences, since he failed to give any explanation whatsoever as to why or how he was in her house without an invitation from her. [ 6 ] Our understanding of the overall evidence, including the appellant's comments (rather than structured testimony), is that the judge was not really confronted with conflicting evidence.

Consequently, there was no requirement for him to follow the three-prong test for analyzing the evidence outlined in R. v. W.D.

[ 7 ] That being said, in the circumstances of this case, the second issue raised by the appellant is moot. While the judge's remark that the appellant made a so-called admission while he was cross-examining the victim may be questionable, it does not constitute a palpable and overriding error of fact. [ 8 ] Even assuming that it could be argued that it is a mistake of law, which we do not so find, we would nevertheless have applied the curative proviso [2] provided by sub-paragraph 686 (1) (b) (iii) of the Criminal Code and dismissed the appeal, on the basis of an overwhelming case against the accused.

In addition, the trial judge’s supposed error was harmless in the circumstances of this case, since it was not a conclusive basis on which he convicted the appellant. For these REASONS, THE COURT: [ 9 ] Dismisses the appeal. PAUL VÉZINA, J.A. JACQUES A. LÉGER, J.A. GUY GAGNON, J.A.