r v. I. M., 2019 QCCQ 6770

R. c. I.M. 2019 QCCQ 6770 COURT OF QUEBEC FINAL CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL Criminal and Penal Division No: 500-01-152306-178 DATE: October 17, 2019 ______________________________________________________________________ BY THE HONOURABLE CHRISTIAN M. TREMBLAY, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v. I. M.

Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Restriction on Publication By Court Order, information that may identify the person described in this judgment as “the complainant” may not be published, broadcasted, or transmitted in any manner. There is also a ban on publishing the content of the application for the publication ban or the evidence, information or submissions at the hearing of the application. See the Criminal Code , s. 486.4 (1) (2.1). INTRODUCTION [ 1 ] I.

M. is the stepfather of the alleged victim X (X). Mr. M. is charged four counts that read as follows: 1. Between November 1, 2000, and March 14, 2002, in Town A, district of Montréal, for a sexual purpose, did touch a part of the body of X, a person under the age of fourteen (14) years [sic], committing thereby the indictable offence provided by

section 151 of the Criminal Code . 2. Between November 1, 2000, and March 14, 2002, in Town A, district of Montréal, for a sexual purpose, did invite, counsel or incite X, a person under the age of fourteen (14) years [sic], to touch him, committing thereby the indictable offence provided by

section 152 of the Criminal Code . 3. Between March 14, 2002, and March 14, 2004, in Town A, district of Montréal, did touch for a sexual purpose a part of the body of X, a young person towards whom he was in a position of trust or authority or being a person with whom X was in a relationship of dependency, committing thereby the indictable offence provided by section 153

(1) a) of the Criminal Code . 4. Between March 14, 2004, and January 1, 2008, in Town B, district of Laval, in Town A, district of Montréal, did commit a sexual assault on X, committing thereby the indictable offence provided by section 271

(1) a) of the Criminal Code . [ 2 ] According to X’s version, the events started after Mr. M. married her mother. The situation lasted several years, until she became an adult. [ 3 ] The prosecution’s evidence is essentially based on the testimony of the complainant. The accused denies the allegations of sexual misconduct. THE FACTS The complainant’s version [ 4 ] The accused started to live with X’s mother in December 2000, after a religious celebration. [1] [ 5 ] X was 12 years old at the time.

She had two younger brothers: Y and Z. [ 6 ] From the union between her mother and the accused arose four new children, two girls and two boys. [ 7 ] After the religious wedding, the family moved to a cottage in Town C (the “ Town C house ” ). X’s bedroom was on the same floor as the master bedroom. The two younger brothers were in another bedroom . X’s bedroom was in the middle. [2]

[ 8 ] In 2001, the family also occupied the house of X’s grandfather bought from the bank after the divorce of X’s mother. This house was situated in District A, Town B (the “ Town B house ” ). This was the house she grew up in before the divorce of her parents. [ 9 ] Few weeks after the religious wedding, the accused came in X’s room during the night. He closed the door and lied down next to her. She was facing the door. The accused was on his back, over the sheets. He stayed there between 20 minutes and an hour, she is not sure. She opened her eyes as soon as he closed the door behind him exiting the room.

She was very confused by what had just happened. [ 10 ] The next night, X noted that the accused was pacing in the hallway as the door of her room was always open at that time. He walked very slowly to the end of the hallway where the two boys were sleeping. [ 11 ] Eventually, he came into her bedroom. He repeated the same pattern as the night before, but this time his body was facing her back. He surrounded her with one arm and put his hand around her stomach . After a while, he took his arm off and left.

She felt scared and confused. [ 12 ] The third night when he came back she was awake because she expected his visit. He lied down next to her and put his arm around her. After about 20 minutes, he got off the bed and went to the feet of the bed. He started to take off her pyjama pants. He stopped when the pants were up to her ankles. She then recovered in a sitting position in the bed. He was kneeled over her at the foot of the bed. She pushed him off and told him to stop. She put her pants back up. He then left. [ 13 ] X was scared. She was shaking.

She did not understand what was going on. [ 14 ] The next night , the accused came back. He lied down next to her again, but this time he moved over her. She tried to push him back. She was crying and told him to stop. He took off her pyjama pants from the waist and said: “ shh… it’s going to be okay. ” He also said: “ It won’t hurt. ” His voice was soft. [ 15 ] After he pulled down his pants and opened her legs, he inserted his penis inside her vagina and moved his basin back and forth. He was not wearing a condom. [ 16 ] She was in shock at that point.

She still remembers the pain she felt. [ 17 ] After a few minutes, he pulled out of her vagina and ejaculated on her stomach. Then he cleaned himself with a shirt or a towel and left. [ 18 ] X saw blood on her. She was scared of what happened. She was also confused. She had to clean herself. [ 19 ] The accused repeated this behaviour almost every day until she was 19 years old. [3] Between the age of 12 and 14 years old, he came only in her room. He limited his activities to penetration. When she was menstruating, he did not penetrate her.

As the years went by, he asked her to perform oral sex on him on these occasions or give him a hand job. He never wore a condom and he always ejaculated on her stomach or on her chest. [ 20 ] Because he performed oral sex on her, he asked her to be clean. She then started to wash her vaginal area before going to bed. The frequency of oral sex was about twice a month. [ 21 ] When X was around 14 years old, she tried different tactics over the years to discourage him or reduce the frequency or duration of his attendances. She asked her mother to replace her queen bed for a twin bed. She kept her room very messy.

She put her clothes in shopping bags and let the bags on the floor because that made noise. Sometimes she was piling the bags in front of the door, inside her room. She did not take her shower regularly. She gained weight to be less attractive. [ 22 ] One day, after the age of 14, the accused asked her to shave her pubic hair. At that time they were living in the Town B house. He gave her a razor.

She refused to obey. [ 23 ] When she asked him to stop or when she was threatening him to tell her mother, the accused scared her with consequences on her mother’s health or any other form of psychological pressure to dissuade her, just like the training the accused received while serving in [Country A]. She was afraid to lose her family if she told her mother what was happening. [ 24 ] Many times he told her: “ Don’t forget, don’t say anything. ” [ 25 ] One night, they were in Town B. That night the accused was aggressive. He was angry.

After forcing her to watch a pornographic film with him, he dragged her into the backyard. He said degrading things towards women. He unzipped his pants and started urinating on her pyjama. She was so shocked she became numb. [ 26 ] Another night after he had sexual intercourse with her on the futon in the basement of the Town B house, the accused sat down and told her to sit next to him. He kept rocking back and forth with his head down and he repeated he was a monster and he did not know why he was doing this to her. He felt really bad at that moment.

She said: “ It's okay, just stop doing it, please, and I’ll forget about everything. I’ll never tell anybody. And we could just go on living normally. ” [ 27 ] He asked her to stay in the basement and he went upstairs. He came back with a knife. He told her to take the knife and cut him because he did not deserve to live. She refused. He then put the knife on his own wrist and he kept rocking back and forth. He did not cut his wrist. [ 28 ] He went upstairs and came back with the Holy Koran that the family kept in a showcase.

He opened it to a random page, tore a big corner of it [4] , rolled it into a ball and ended up swallowing it. He then said: “ Now God is inside of me and it’s going to help me heal. It’s going to help me not come to you anymore… ” He told her kindly to go upstairs to her room. He said he was almost healed. The same week he came back into her room. She asked him why he was doing it again and he told her to be quiet. He penetrated her again.

[ 29 ] After the incident in Town B where he tore a page of the Koran and ate it, the accused stayed on the side of the bed after the sexual intercourse and talked with her. He told her that he felt guilty of doing so. He mentioned he believed that he was doing this to her because he was also abused as a child by an uncle. [ 30 ] Between the age of 14 and 16 years old, she remembers that she once thought she was pregnant. She told the accused who bought her a pregnancy test.

It turned out to be negative. [ 31 ] When X was around 16 or 17 years old, one morning the accused told her he would pick her up from her high school at 3:30 P.M. He was not used to doing this regularly, but it happened sometimes. [ 32 ] At 3:30 P.M., he picks her up and they went to the Town B house which was empty at that time because the rest of the family was then living in Town C house. He forced her to take a shower with him and he had a sexual intercourse with her. She recalls he tried to forcefully kiss her.

When they returned to the Town C house, the accused caused a car accident. [ 33 ] She remembers she pointed out to him that their long absence would not go unnoticed. He answered he had told her mother that he was going to the Town B house to pick up the mail and was picking her up on the way. [ 34 ] One day, when X was 17 years old, she and the accused were in the bathroom of the Town C home. At that time, she was menstruating . He asked her to perform oral sex on him. He rushed her because they did not have much time.

He ejaculated in her mouth and she spat it out on him. [ 35 ] At the age of 18, the accused tried to penetrate her anus. After he realized X was in pain, he stopped. Because she did not want to be penetrated in her anus, he asked her to masturbate him. [ 36 ] When she was 18 years old , she changed the lock on her bedroom door. This new lock required a key. [ 37 ] The accused never hit her, nor was violent with her. [5] But once an incident occurred regarding a religious medallion she wore around her neck. During penetration, he saw the medallion and said he did not want her to wear religious symbols.

He told her to take it off and she refused. He pulled it himself. In doing so, he caused injury to X. She now has a scar on her chest between her breasts. [6] [ 38 ] The last time he came in her room was in January 2008, three months after she started dating her boyfriend who is now her husband. The accused entered her bedroom even with her having locked the door. He used a tool. She was astonished. He was drunk. [ 39 ] To her surprise , she found the courage to push him away. She opened the door and ran downstairs .

Her mother who was sleeping on the futon woke up and X sat down on the couch in the living room. [ 40 ] After this last attempt, the relationship with her stepfather was limited to the minimum. There was no communication regarding the sexual intercourse they had. [ 41 ] She moved out in the summer of 2011, a month or two after graduating from the Nursing Program.

She returned to visit her mother and siblings. [ 42 ] Thinking he had changed, she had somewhat of communications with the accused on Facebook Messenger: condolences, “ happy birthday ” , copy of her diploma and her university degree. [ 43 ] Except for her boyfriend, she never told anybody about the sexual intercourse, as she was afraid for her family . The accused had already threatened her and her brothers.

She thought he could hurt her family. [ 44 ] A few months after they started dating, X told her boyfriend. [7] During a discussion concerning virginity , she told him she had been raped by her biological father. She lied about the identity of the person who had abused her because it was the very first time disclosing this to anybody and she was scared of his reaction, but he reacted well. As the relationship progressed, not long after, she told him it was not her biological father that had raped her, but it was her stepfather.

Seeing his reaction, she reassured him and explained to him everything was under control. It was important for her not to break up the family, which he understood. [ 45 ] She told him her story because she felt safe with him. He was her first true friend. He did not judge her. She wanted to start off the relationship being truthful to him. [ 46 ] On July 31, 2016, X got married to her boyfriend T. B.. A few months later she told her mother what the accused had done to her during many years. In October 2016, after a night shift as a nurse, she called her mother on her way home. Her mother seemed preoccupied.

They met in front of her house and went in X’s mother's car. X’s mother told her about the accused’s behaviour toward other women close to the family. [8] Then she asked her daughter if the accused had touched her. X proceeded to tell her mother what had happened since the accused became her stepfather. [ 47 ] According to X, Mr. B. was not present during the discussion. He thought he was there. [ 48 ] The same month , X went to the police to file a complaint. The accused’s version [ 49 ] Mr. M. testified. He explained he came to Canada in 1998, after his ex-father-in-law, Mr. A.

M. [9] , strongly urged him to come and live here. Mr. M. was then living in Town D, had no job and was isolated. He left [Country B] to find a better job in the [Country C]. [ 50 ] In 1999, when he decided to come to Canada, he lived in the basement of his ex-father-in-law ’s residence in Ville C. Then he met N. M. and he took care of her three children: X, 10 years old and the two younger boys, Y and Z. He also helped N. M. with her tax

business. Mr. M. was involved in N.’s previous divorce as she needed help. [ 51 ] In June 2000, N. and the accused decided to form a family. Considering N. was not legally divorced and was pregnant, they opted for a Muslim religious ceremony, which was held in October 2000. [10] [ 52 ] The accused recognizes that X did not like him at the beginning. She was pretty upset by the wedding between her mother and him. But the situation improved over time.

He had a very good relationship with her when she became a young adult. [ 53 ] After the “ marriageˮ, the accused and his new family lived in Ville C, on [Street A], but they also had the possibility to live in Town B, on [Street B]. The house belonged to his father-in-law, but they had the opportunity to live there at their convenience. [ 54 ] Although he knew he was not entitled to claim the refugee status, he followed the suggestion of his ex-father-in-law. Of course, he received a negative answer to his demand. Then he claimed the permission to stay based on humanitarian ground. N.

M. sponsored him. [ 55 ] The accused found a job and he had four other children with Mrs. N. M. over the years: A (2001), B (2002), C (2004) and D (2009). [ 56 ] During her high school years, X went to [the School A] in Town E and the two boys went to a school situated in Town B. The accused took care of the boys when they were done with school and N. M. picked up X after school. [ 57 ] The accused admitted in cross-examination that he sometimes picked up X from school , but they were at that time living in Town C. [ 58 ] Between the years 2000 and 2004, the family lived sometimes in Town C, sometimes in Town B.

In 2004 , he went to the Town B house only during the summer. The Town B house was abandoned in late 2004. In 2006 the house was no longer served by electricity. [ 59 ] He denied having entered in X’s room in 2000, but in cross-examination he said he sometimes went into the kid’s room. As for X, he went to her room if she called for help or to fix plumbing. But if she was sleeping, he did not enter. [ 60 ] He never went to the Town B house alone with X when the house was not occupied. [ 61 ] The accused recalls about the car accident that happened between Town B and Town C.

It was a minor accident, according to him. [ 62 ] Regarding the torn page of the Koran, he has no explanation for this. He did not know. It was an old book in poor condition. The Koran was exposed in the showcase and was never used. BASIC PRINCIPLES [ 63 ] At this stage it is important to remember the basic principles of a criminal trial. This exercise had been made in The Queen v.

Zoumpoulias [11] by Justice Healy, who writes: [2] In view of conflicts and contradictions in the evidence, a brief restatement of basic principles is appropriate before undertaking a review and assessment of the evidence. [3] The presumption of innocence ensures that no person may be found guilty unless the offence charged is proved beyond reasonable doubt.

Whether a reasonable doubt arises from the prosecution evidence, evidence led by the defence or an assessment of all of the evidence taken together, the accused must be acquitted if there remains a reasonable doubt on the whole of the evidence at the end of the case. In this respect, the credibility of a witness is of central importance because if the testimony of a witness raises a reasonable doubt as to its reliability, it might as well raise a reasonable doubt with respect to an essential element of the offence or a matter of defence.

If there is a conflict in the evidence, the trier of fact is not obliged to make a choice in favour of one version or another. This might well be the result in a given case if the judge is led to this conclusion by the force of the evidence, but conclusions of fact must always reflect an examination and evaluation of the whole of the evidence. [4] The Supreme Court has given guidance on these principles in W.(D.) . The Court has reiterated that the presumption of innocence and the assessment of evidence, including the credibility of witnesses, are not matters of form but of substance.

Whether a judge follows textually and schematically the criteria set out in W.(D.) or assesses them in some other manner, the presumption of innocence requires that there be a careful evaluation of all the evidence before the court determines whether the charge is proved or whether there remains a reasonable doubt. [5] W.(D.) does not impose a mechanical formula to be followed in the evaluation of evidence. The Supreme Court has repeated this caution on several occasions.

This jurisprudence reminds us that the presumption of innocence requires the prosecution to prove the guilt of the accused beyond reasonable doubt. It lies with the trier of fact at the end of the trial to examine all of the evidence presented before the court and to evaluate it so as to determine whether the prosecution has discharged its burden. The accused has nothing to prove and the prosecution is not required to prove guilt beyond all possible doubt but beyond all reasonable doubt.

If there remains a reasonable doubt at the end of the trial and after a careful examination of all of the evidence, including questions of credibility, the accused must be acquitted. It does not matter whether a reasonable doubt touches a matter of defence or an element of the offence. If a reasonable doubt subsists after an assessment of all the evidence, an acquittal is required. [References omitted] ESSENTIAL ELEMENTS OF THE FOUR OFFENCES Count number one

[ 64 ] The offense allegedly happened between November 1, 2000, and March 14, 2002. Subsection 151 (

a) Cr . C . as it then existed, reads as follows: Sexual interference 151. Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of fourteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on

summary conviction. [ 65 ] The Crown has to prove beyond a reasonable doubt the following essential elements: 1) that X was less than 14 years old at the time; 2) that the accused intentionally touched X, either directly or indirectly; 3) that the touching was for sexual purpose. Count number two [ 66 ] Concerning count number two, the period of the offense is the same as for count number one. Paragraph 152 (

d) Cr.C . as it then existed, read as follows: Invitation to sexual touching 152. Every person who, for a sexual purpose, invites, counsels or incites a person under the age of fourteen years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of fourteen years, is guilty of an indictable offense and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on

summary conviction. [ 67 ] The Crown has to prove beyond a reasonable doubt the following essential elements: 1) that X was less than 14 years old at the time; 2) that the accused invited, counselled or incited X to touch, either directly or indirectly; 3) that the touching was for a sexual purpose. Count number three [ 68 ] The offense allegedly happened between March 14, 2002, and March 14, 2004. Paragraph 153(1)

a) Cr.C . as it then existed, read as follows: Sexual exploitation 153.

(1) Every person who is in a position of trust or authority towards a young person or is a person with whom the young person is in a relationship of dependency and who (

a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person, or (

b) for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or is guilty of an offence punishable on

summary conviction.

(2) In this section, “young person” means a person fourteen years of age or more but under the age of eighteen years. [ 69 ] The Crown has to prove beyond a reasonable doubt the following essential elements: 1) that X was 14 of age or more but under the age of 18 years; 2) that the accused is in a position of trust toward X or X being in a relationship of dependency with the accused; 3) the accused committed acts amounting to either sexual interference (s. 151) or invitation to sexual touching (s. 152). Count number four

[ 70 ] The offense allegedly happened between March 14, 2004, and January 1, 2008. Paragraph 271(1)

a) Cr.C . as it then existed, read as follows: Sexual assault 271.

(1) Everyone who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or (

b) an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding eighteen months. (2) [ Repealed , R.S.C. 1985, c. 19 (3 rd Supp.), s. 10.] [ 71 ] The Crown has to prove beyond a reasonable doubt the following essential elements [12] : 1) that the accused had touched X; 2) that the contact was of sexual nature; 3) that X did not consent. [ 72 ] The meaning of “ consent ” is provided for in

section 273.1 Cr.C . Paragraph 1 says: 273.1

(1) Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question. [ 73 ] That consent must be present at the time the sexual activity in question takes place (273.1

(1.1) Cr.C .). [ 74 ] There is no consent if the accused induced the complainant to engage in the activity by abusing a position of trust, power or authority or if the complainant expressed, by words or conduct, a lack of agreement to engage in the activity (sub- par. 273.1 (2) (

c) and (

d) Cr.C .). [ 75 ] There is no notion of “ tacit consent ” . [ 76 ] The complainant has no obligation to prove she communicated her non-consent to the accused.

CREDIBILITY AND RELIABILITY [ 77 ] In order to found a conviction or proof beyond a reasonable doubt, testimonial evidence must be both credible and reliable. [ 78 ] The credibility of a witness relies on the witness sincerity that is, a willingness to speak the truth as the witness believes to be. [13] [ 79 ] The reliability of the witness’ testimony depends on the accuracy (exactitude, precision) and the witness’ ability to accurately observe, recall and recount the events in issue. [14] [ 80 ] In the presence of diametrically opposed versions, it is not a credibility contest.

There is also no need to choose the more credible of the two versions. [ 81 ] When an adult is testifying as to events which occurred when he or she was a child, the credibility should be evaluated as mentioned by the Supreme Court in R. c. W .( R .) [15] : […] In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness.

Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying. [ 82 ] More recently , our Court of Appeal wrote [16] : [40] […] En quelques mots, puisqu’un enfant ne perçoit pas les événements de Ia même manière qu’un adulte, Ia mémoire de ces mêmes événements sera conséquente.

Ainsi, ii semble inévitable que le récit des abus subis dans Ia jeune enfance, et racontés à l’âge de 43 ans, souffrira d’un manque de détails, de déformation des faits, voire de certaines incohérences. […] [45] L’adulte qui témoigne de faits survenus dans l’enfance, ou à un tout autre moment, est évalué comme un témoin adulte, c’est-à-dire avec ses forces et ses faiblesses.

Ainsi, la capacité d’une personne d’observer, de se souvenir et de rendre compte des événements, son désir de fournir des réponses complètes, son intelligence, la présence ou l’absence de mobile de nuire à l’autre partie, la présence ou l’absence d’intérêt dans l’issu du litige, le fait que le récit concorde avec d’autres éléments de preuve sont tous des éléments qui participent à l’évaluation de la crédibilité et de la fiabilité d’un témoignage. […] [ 83 ] The complainant’s credibility cannot be affected in any way because she waited several years before making a complaint to the police ( s. 275 Cr.C .). [ 84 ] It is also important to recall, that the complainant’s testimony alone may lead to a guilty verdict.

Corroboration is not necessary

( s. 274 Cr.C .). [ 85 ] A testimony is assessed globally. Never in a vacuum. [17] ASSESSMENT OF EVIDENCE [ 86 ] As we invite the judgment W .( D .) from the Supreme Court, let’s start with the credibility and reliability of the accused’s testimony. The accused [ 87 ] The analysis of the credibility and reliability of the accused’s testimony must take into account all of the evidence, including the complainant’s testimony.

We have to admit, X’s testimony was clear and fairly detailed in opposition to the accused’s testimony which was laborious, sometimes confused and disjointed. [ 88 ] In the case at bar , the Court is not faced with two conflicting narratives. The accused simply denies the charges. However, he offered no explanation of what happened. He affirmed he did not enter X’s room during the night and he did not have oral sex on her. He also denied having been alone with her in the Town B house when the house was not inhabited.

But he never denied X’s testimony concerning: his requests to perform oral sex on him or masturbation; he asked her to shave her pubic hair; she threatened him to tell her mother; he watched a porno video with her; he urinated on her in the back yard of the Town B house; he ate a page of the Koran; the confession-chat he had with her; the academic difficulties she had; that her room was a mess; that she did not take her shower on a regular basis and that she installed a lock on the door of her room. [ 89 ] The accused’s testimony can be summarized as follows: − he came to Canada after his ex-father-in-law urged him to establish here; − he claimed refugee status knowing the conditions for his status was not met; − he was influenced by his ex-father-in-law; − he met N.

M. who had three children and was engaged in a divorce; − Mrs. M. and him decided to form a new family; − they were urged to marry because she was pregnant; − he was a good stepfather for Mrs.

M.’s children; − he was a good husband; − he worked hard; − he took care of his family; − he made renovations in the Town B house; − he was involved in his wife’s business; − he was involved in his father-in-law’s business; − he was a good person; − he is the victim here because he lost his family; − his children do not want to have contact with him anymore; − the complainant did not tell the truth. [ 90 ] At many occasions he was asked to specify about his relationship with X and he avoided answering simply and directly to the question.

Let’s look at some examples: (Transcription of stenographic notes of March 14, 2019, examination, pages 106 to 109) […] Q- So, when you been married with N., what... which kind of relationship that you have with X? A- When I married to N., X was like my daughter, as well as her brothers, because I am the one who took care of them while she was going through divorce, and... so she... I used to... because I was home, because of my applying for refugee status, I didn’t have a job that time, so I was collecting social assistant (sic) , living with my ex-father-in-law.

So she... when she was going through a divorce, she brought the kids to stay with us at [Boulevard A] in her parents’ home. So I was taking the kids to the riverside in [Boulevard B] and playing with them in the parks, and tried to spend more time because they was very nervous and scared that time. Q- Pardon me?

A- They was nervous and scared that time as the children because of... their family broke down, they was going through divorce. Q- Okay. A- So I was trying to accompany them, that’s what N. have asked me, to spend... keep... “Take care of my children.” So that’s what I was doing that time. Q- Okay. So in the beginning of the year of two thousand (2000), when X was at beginning of a teenager and everything, which kind of relationship you had with her? A- In beginning of two thousand (2000)? Q- Yeah, two thousand and one (2001), two thousand and two (2002).

A- She was pretty upset of me getting married to her mother. And that time we have a big problem, because in... when we got married, and it was surprise for them, but they all was attended our wedding, which was our religious wedding. Then when we came home and she was not letting myself and her mother to sleep in one (1) room, and she used to start knocking and shouting, “What you guys are doing inside? What... why you guys are inside?” And we have opened the door and her mother have tried to make reason with her and told her to go her room and sleep.

But she was keep coming that happened, like, three (3) time a night. Then the next day... and then we was have no choice to talk to her grandfather, A. (ph) M.. Q- Why you say that? A- Because he... he was my ex-father-in-law. Q- Okay. A- And we have to talk with her because X was not listening to her mother and myself, and we was having trouble. So he came along next day and he have make reason X. And we sit down in the living room and he told her to... she have to stop and... acting like that. And if she not going to stop that and he going to (inaudible) her down the stairs. Those are the word he use for X.

And since then, she never knocked the door, but she was always little bit curious. (Transcription of stenographic notes of March 14, 2019, examination, pages 125 to 126) […] Q- Okay. You seems working a lot at that time. What... what was your rela... which kind of relationship you have with your... with your family... A- I have very... Q- ... your wife... A- ... happy... Q- ... and X... A- I have very happy family. I was making my family. […] (Transcription of stenographic notes of March 14, 2019, examination, page 127) […] Q- And with X, what is your relationship with her in... in those period?

A- It... it came very wonderful, because we was very protective family and we was doing... I was doing always helpful, because I was doing lot of projects, I... I totally renovated the Town B home, I did all the... the tiles there outside in the garden, front and back. I... I... we had... used to have two

(2) Christmas trees, and the root was coming out, so I... I cut myself those trees. It was big trees, I cut it down. And I... I... (Transcription of stenographic notes of March 14, 2019, examination, page 129 to 130) […] Q- Okay. Eventually time pass, X goes to college, and what was your relationship with X when she came a young adult? A- We had very good relationship because we enjoy our holidays on the construction holidays. We used to go Bromont, we used to go to Granby Zoo, that was our regular routine. And I took X, Y, and Z myself to Aqua Club in... Q- A what? A- Aqua Club.

Q- Aqua Club. A- I think it’s after Saint-Eustache. Q- Okay. A- It’s Club Aqua. So I... I had that time. That happen in early two thousand and one (2001). I didn’t have my... any child, biologicals kid that time, so two thousand... early two thousand and one

(2001) I took these three (3) children... no, I’m so sorry, it was summer. (Transcription of stenographic notes of March 14, 2019, examination, page 130) […] A- […] We have very good relationship with X. I had teach them how to drive, each of my child, X, Y, and Z, in Réno-Dépôt parking. […] (Transcription of stenographic notes of March 14, 2019, examination, page 131) […] Q- Okay. It was more my question actually, so when X became a young adult, go to college and everything, it’s more in that period which... can you describe the relationship that you have with X at that... A- We have a very...

Q- ... that period? A- ... good relationship. Q- Okay. Okay. A- But most of time, because she first started with [The College A]... Q- Okay. A- ... [The College A] was far, so her grandfather, my ex-father-in-law, he ask her if she can stay with them to the Town F. [ 91 ] When he was asked if he went in X’s room during the night, he answered after several detours: “[…] I did not go in my child room in the night.ˮ [18] During the cross-examination, the attorney questioned him again regarding the same question [19] : Q- […] you have never entered her room at night. A- That true. Q- Never ever? A- I don’t recall.

I do go in my girls’ room with my little … with my little kids’ room, yes. Q- Who do you mean? A- But the girls … Q- A and B (ph)? A- Yes. Q- Okay. A- And my boy’s room, yes. […] Q- […] But X, you never went into her room at night? A- At night? After midnight or before midnight? Q- At night. A- At night? Sometime if we are… we have to go… if she call, she need to do something, yes, because we have trap door in X’s bedroom, and our bathroom always have a problem. I install all those things, so I always have to go in her room to install my plumbing and take care of the repairs and maintenance.

Q- But do you have to do that at night? A- No.

Q- Okay. Do you ever enter her room when he’s sleeping? A- No. I did not enter in her room. Q- Okay. So never when she was in bed did you enter her room? A- No, Sir. Q- Okay. A- I did not enter her room when she’s on the bed. Q- Okay. Was X ever sick as a child? A- Once a while, everybody get sick. I don’t remember… [ 92 ] The accused gave a negative answer after he was questioned by his lawyer and he gave a new answer using the other children. When the Crown attorney insisted, he was hesitant and gave an unconvincing explanation.

Then he realized the explanation was not good and he repeated that he did not enter her room during the night. [ 93 ] The question was not complicated. Why this long detour? Why was he so defensive? Why did he advance an irrelevant explanation? Maybe because he had something to hide. [ 94 ] Regarding the incident with the Koran, the accused never formally denied the complainant’s version . He said he never noticed the ripped page of the Koran in the showcase. For him, this damaged page can be explained due to the advanced age of the Koran. The book was falling apart. It was very old. It was not readable.

Pages were very loose. It was only a decorating piece. [ 95 ] Pictures of the Koran [20] confirm it was an old book, but it was not falling apart. The back and the cover seem damaged but pages were not loose. [ 96 ] The accused did not say if the rip in the page existed at the time of purchase. He only said he did not know about the rip in the page. [ 97 ] The accused’s testimony changed during the cross-examination. During the main examination, he said that in 2000 X went to bed around 9 P.M. and he and N. went to bed after midnight.

When the Crown attorney questioned him about bed time, he said that he did not recall for X. He added that X had no specific time to go to bed but for Y and Z it was 9 P.M. For him and his wife it was 10:30 P.M. [ 98 ] He also changed his version regarding the subject of the Town B house, stating he went to the house only during summer time, as of 2004. After that, he said he went for the maintenance including during winter time to shovel the snow. He also added that he went to the Town B house for the two boys who studied in Town B. [ 99 ] Same thing with picking up X from school.

He said that, yes, he would pick her up sometimes, yet again, he later said it made no sense because her school was in Town E and the house was in Town C. [ 100 ] Of course , all of those are peripheral facts. But it shows that his testimony is not reliable. He adjusted his version according to the person asking him questions. [ 101 ] It must also be emphasized that the accused lost contact with his children A, B, C and D. This situation follows the present accusations.

He has a personal interest to deny. [ 102 ] The fact that he tried to obtain the refugee status when he knew he was not entitled to obtain it, leaves us thoughtful about the morality and honesty of the accused. [ 103 ] The accused rarely answered the question directly. His answers were unnecessarily complicated. There was no conviction in his testimony. His answers were intended to depersonalize sexual acts by generalizing. [ 104 ] The Court does not believe the accused’s denegation of facts. It should be set aside. His testimony has no probative value.

The complainant [ 105 ] Now, let’s take a look at the complainant’s version. Her credibility and the reliability of the testimony must also be evaluated. [ 106 ] X’s testimony was clear. Although her testimony concerned distant facts, her memory was quite detailed. For example, she had no difficulty drawing each floor of the houses she lived in, or to explain what she saw on the pornographic video she watched with the accused. Of course, it was impossible for her to describe every event and it is normal since the events started when she was a child.

But, it is also important to emphasize that she was able to recall specific events, such as: - the time he asked her to shave her pubic hair; - the time where she watched a pornographic film with him; - the time where he dragged her into the backyard of the Town B house and he urinated on her; - the time where he swallowed a piece of a page of the Koran;

- the time he asked her to perform oral sex on him in the bathroom of the Town C house; - the incident with the medallion she was wearing. [ 107 ] Several aspects of her testimony are corroborated by the accused, such as: - the car accident he had between Town B and Town C; - the family had two houses where they lived; - the Koran that they had in the Town B house; - sometimes he picked her up at school. [ 108 ] She admitted that she never really liked the accused. [ 109 ] Her testimony was not perfect. She probably exaggerated when she said the accused came in her room almost every night.

It is not surprising considering that she testifies with memories she had when she was a child. The Court notes that the accused came to her room very often. Probably more than once a week. [ 110 ] There is a contradiction between the testimonies concerning X’s bed. The accused affirmed X never had a queen bed. Once again, the Court reiterates that it has significant concerns about the credibility and reliably of the accused’s testimony. It is possible that the complainant may be mistaken. In any case, this is not an essential fact.

It is not really important here. [ 111 ] Same comment regarding the date of the religious wedding. She said December 2000 and he said maybe October 2000. It is a peripheral fact. [ 112 ] There is also a contradiction between X’s testimony and her husband's testimony about his presence in the vehicle when she told her mother her story. This contradiction is not important because the only purpose of this story was to demonstrate that it was not a recently invented story. However, the defence has no claim to this effect.

In any event, given the rather detailed account of all her testimony, the Court prefers X’s version. [ 113 ] Her testimony was rather detailed: period of time, places, and distinctive events. She was able to give details not only about sexual intercourse , but also about collateral events. [ 114 ] The cross-examination did not affect her in any way. She did not contradict herself. [ 115 ] X testified without being aggressive. She testified with aplomb and detachment. She was calm and sincere. Her testimony is coherent and holds no contradiction .

Her story is detailed , reliable and trustworthy. [ 116 ] Her testimony is blatantly true. [ 117 ] The Court considers X’s testimony credible and reliable. REASONABLE DOUBT [ 118 ] The Court must determine whether, on the basis of all the evidence, there is a reasonable doubt as to the guilt of the accused. [ 119 ] Concerning the sexual activities told by the complainant, the accused simply denied that he was in her room at night, had oral sex on her and went to the Town B house alone with her. For the other incidents he did not deny.

Consequently, we do not have his position. [ 120 ] With respect, the versions are mutually exclusive. In this case, the acceptance of one version necessarily implies the rejection of the other. It is very difficult, if not impossible, to reconcile the two versions when the complainant claims the accused did this or that or she was with him in a particular place and that the accused denies the facts. [ 121 ] It is also important to note that other family members did not testify.

The Court does not benefit from their versions of facts. [ 122 ] Considering the Court put aside the accused’s denying of having had sexual intercourse with the complainant and believes the complainant’s version of facts, there is no reasonable doubt here. PROOF OF THE ESSENTIAL ELEMENTS OF THE DEFENCE [ 123 ] Let us now examine whether the Crown has discharged its burden of proof for each count. [ 124 ] Considering the nature of the first three counts, it is important to establish how old X was during the period to which each count refers. [ 125 ] X’s date of birth is [...], 1988.

Consequently: - in [...], 2000, she was 12 years old; - in [...], 2002, she was 14 years old; - in [...], 2004, she was 16 years old;

- in [...], 2008, she was 19 years old. Count number 1 [ 126 ] For the first count, the reference period is between [...], 2000, and [...], 2002. During that period, X was under the age of 14. [ 127 ] The evidence shows the accused came in X’s room regularly and he had complete sexual intercourse with her. He also performed oral sex on her. [ 128 ] All the essential elements of the offence are proven beyond a reasonable doubt. Count number 2 [ 129 ] Count number 2 refers to the same period.

X was then again under the age of 14 years old. [ 130 ] X testified that when she was menstruating, the accused asked her to perform oral sex on him on these occasions or give him a hand job. [ 131 ] All the essential elements of the offence are proven beyond a reasonable doubt. Count number 3 [ 132 ] The offence is situated between [...], 2002, and [...], 2004. X was then aged between 14 and 16 years old.

She was a “ young person ” as defined in par. 153(2) Cr.C . [ 133 ] It is not contested that the accused was then in a position of trust toward X as he was her stepfather. [ 134 ] The evidence clearly established during that period that he had sexual intercourse with the complainant or he invited her to sexual touching. [ 135 ] All the essential elements of the offence are proven beyond a reasonable doubt.

Count number 4 [ 136 ] Between the ages of 16 and 19, the accused continued to have sexual activities with X. [ 137 ] When she was around 16 or 17, the accused picked her up from her high school and then went to the Town B house. He forced her to take a shower before he had a sexual intercourse with her. He also forcefully kissed her. According to this version, the incident occurred in 2004 or 2005 when the Town B house was abandoned. [ 138 ] When she was 17, he asked her to perform oral sex on him. They were in the bathroom of the Town C house.

He ejaculated in her mouth. [ 139 ] At the age of 18, the accused tried to penetrate her anus. [ 140 ] We also have to recall, the accused continued to get into her bedroom during the night to have sexual intercourse with her. [ 141 ] Each time the accused had sexual activities with X, she did not consent. She never gave her consent. She had no choice. Since she was 12, the accused abused her on a regular basis. He manipulated her. Many times he told her: “ Don’t forget, don’t say anything. ” He was also exerting psychological pressure on her.

She did not want her family to break up. [ 142 ] The incident in which the accused urinated on her shows that he had complete control over her. The accused never denied doing so. [ 143 ] Over the years, she tried different tactics to discourage him or to reduce the frequency or duration of his attendance. At the age of 18, she changed the lock on her bedroom door. [ 144 ] For the Court, it is more than obvious that X never gave a valid consent to sexual activities (sub-par. 273.1

(2) c) Cr.C .) [ 145 ] She has always been forced to submit to the accused demands. She had no choice. [ 146 ] The Court considers that the Crown has proved beyond reasonable doubt, the essential elements of the offence described in count number 4. FOR THESE REASONS THE COURT: FINDS the accused guilty of four counts.

__________________________________ CHRISTIAN M. TREMBLAY, J.C.Q. M e Jérôme Laflamme Crown attorney M e Yann Trignac Defence attorney Dates of hearing: March 13, 14 and 15, 2019