R. v. W., 2020 QCCA 1556

Clements c. R. 2020 QCCA 1556 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-006280-166 (555-01-000209-099) DATE: November 19, 2020 CORAM: THE HONOURABLE MARK SCHRAGER, J.A. STÉPHANE SANSFAÇON, J.A. BENOÎT MOORE, J.A. SCOTT CLEMENTS APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT WARNING: Publication ban under s. 486.4 Cr.C . : No person shall publish in any document or broadcast or transmit in any way any information that could identify the victim or a witness . [ 1 ] This is an appeal against a judgment of the Court of Québec, Criminal Division, District of Pontiac (the Honourable Serge Laurin), dated October 7, 2016, [1] which found the appellant guilty on the counts of sexual assault ( s. 271(1) (

a) of the Criminal Code ), sexual interference ( s. 151 Cr.C . ), invitation to sexual touching ( s. 152 Cr.C . ) and trafficking in cannabis (ss. 5(1) and (4) of the Controlled Drugs and Substances Act ).

The judgment acquitted him on a fifth count relating to the production of cannabis. [ 2 ] Although the appellant formally announced only one ground of appeal, he in fact raises two grounds: the judge gave insufficient reasons for his judgment and he erred in failing to apply the rule against multiple convictions set out in Kienapple . [2] [ 3 ] With respect to the latter ground of appeal, the respondent does not dispute that the judge should have applied the Kienapple principle. As a remedy, it proposes a conditional stay of proceedings on the count of sexual assault ( s. 271(1) (

a) Cr.C . ), the counts of sexual interference and invitation to sexual touching being the most serious. The appellant, quite rightly, agrees that this is the correct remedy under the applicable law. The Court will act on this suggestion. [ 4 ] The crux of the case thus rests on the first ground of appeal, namely, the inadequate reasoning of the judgment under appeal. As such, the appellant argues that the judgment is generic and that the judge, in applying the guidance in R. v.

W. (D.) , [3] failed to justify his conclusion as to the second and third steps. [ 5 ] According to the appellant, the judge did not identify any of the weaknesses in the complainant's testimony or its imprecision or unreliability. Yet this testimony was essential to the prosecution's case as it was the only element that linked the complainant to the appellant.

The judge failed to consider that the complainant did not remember the chronology of the evening; that she said she had not consumed alcohol, while her friend claimed that her breath smelled of alcohol when she returned from the appellant's house; that she did not remember the appellant's last name when she met with the police officers; that she said she had not been in the karaoke tent that evening, contrary to what other witnesses, including her friend, said, and that she did not remember having gone to babysit at the appellant's house a few years earlier. [ 6 ] The respondent concedes that the judgment is rather brief.

In its view, however, it is incorrect to claim that it is generic. On the contrary, it is sufficiently intelligible to permit criticism. The respondent argues that the judge was not required to raise and consider all the frailties of the evidence or to set out all the details of the trial. Finally, it points out that the complainant was 15 years old at the time of the events in 2009 and that the weaknesses identified by the appellant relate to ancillary matters. * * * [ 7 ] For purposes of this judgment, it is useful to reproduce the main excerpts from the judgment under appeal.

The judge began by presenting the facts as put forth by the complainant: [4] Question in dispute. The Court has to decide if Mr. Clements is guilty of these accusations.

Facts. The victim X is the daughter of Mrs. M.. According to them, Mr. Clements was Mrs. M.’s boyfriend at the time of the events. Mr. Clements has denied the fact. On July fourth (4th), two thousand and nine (2009), X attended to the municipal fair in celebration of the one hundred fiftieth anniversary of the City of Waltham. Her mother, grandmother, sisters and friend A. accompanied her. During the fireworks she left her mother’s side, walked around the ground and met Mr. Clements. She asked him if he would purchase alcohol for her.

He accepted and confirmed that he will leave the alcohol on her mom’s front porch. Mr. Clements lives across from where the fair and the fireworks were happening. Later on, he saw X - Mr. Clements saw X - walking by and asked her to come inside his home. Believing he had already bought the alcohol she asked for, she joined him inside. Mr. Clements then started to kiss her, removed her bra and touched her breasts and vagina. He pushed down his pants, took her head with his two hands and put his penis in her mouth, doing a back-and-forth movement with his hips. X tried to release herself from that position.

She was stressed and nervous. She did not feel well and tried to escape, but the doorknob had a childproof protection device and she was unable to open it. She did not yell nor attack him, but wanted him to stop. At the time of the event, she was fifteen (15) years old and is now twenty-two (22) years old. Mr. Clements finally stopped, walked to the kitchen to get hashish, and gave it to her. He had not bought the alcohol, as he promised her. X left and went back to the fair and met with her friend A., to whom she revealed what had just happened.

They went to a nearby restaurant, discussed the matter for about ten (10) minutes. A. testified that X was in shock, stressed, nervous and crying. She did not want to go back to her mother’s place because she was afraid Mr. Clements would be there. Finally, they went to X’s home, woke her mother and told her what happened. They decided to call the police, who sent them to the Shawville Hospital for tests and statements. Mr. Clements denies asking X to come in his home during or after the fireworks.

He also denies touching her or forcing her to perform oral sex or giving her hashish. [ 8 ] The judge then began his analysis: [5] Analysis. Mr. Clements is presumed innocent until the Crown proves his guilt beyond a reasonable doubt. This is a fundamental rule in our system of criminal law. When the Court faces contradictory testimonies and credibility issues, he must follow the Supreme Court instructions stated in R. v. W.D. First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in doubt... reasonable doubt by it, you must acquit. Third, even if not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. The Court took into consideration all the evidence he accepted. The Court does not believe Mr. Clements, on the following grounds. Initially, Mr. Clements said that nobody came to his home during or after the fireworks apart from Mrs.

K. and her son Y, but, later, he adds that B., Mrs. C.’s ex-boyfriend, came to his home to bring a Xbox. He also says he watched TV with Y and played Xbox with him - Y - the same evening. Mr. Clements’ testimony contradicts Mrs. K. and Mrs. C.. In fact, Mrs. K. testified that she went home around midnight. Also, he disagrees with Mrs. K. regarding the date when he stopped doing drugs. He says he stopped consuming drugs when Y was born. Mrs. K. did not want him to take drugs in front of Y and insisted that he smoke outside. Even though he said he stopped smoking drugs, he would sometimes take some from friends.

He says that marijuana made him feel better physically and mentally. He testified that he completely stopped many years ago consuming drugs and alcohol, but did not say why. Mr. Clements says that he drank about five (5) beers that night, before going to the fair, and left two (2) or three (3) beers in a cooler out in his backyard. According to him, these beers disappeared. He did not explain why he took five (5) beers that night, he only said that he was thirsty. Previously in his testimony, he said that he had stopped drinking a long time before that night. He admits that he moved in with Mrs.

M., X’s mother, but only stayed fifteen (15) minutes because he saw mouse excrements in the basement. He says he noticed mouse excrements in the clothes he brought with him and decided to leave them behind and never recovered them. In his statement, Mr. Clements says that he went for several days at Mrs. M.’s home and that he met her at the fireworks. He denies having a close relationship with Mrs. M. and having sex with her. Part of the testimony of X is corroborated by Mrs. M. and A.. The Court did not notice any contradiction between those three (3) testimonies. Also, A. corroborates the fact that Mr.

Clements and Mrs. M. were in close relation and that X had a piece of marijuana given to her by Mr. Clements when she came back to the fair. Mrs. M. said that Mr. Clements was a drug user before these events. Also, she smelled alcohol from Mr. Clements’ breath when she met him at the fireworks.

The Court is surprised by the testimony of Mrs. Turner, who is Mr. Clements’ and Mrs. K.’s friend. She relates that she saw X a few times at the fair, but did not say if she saw Mrs. M. or any other children. She also states that X looked to be drunk, but according to the lab result, X did not consume alcohol that evening. Moreover, Mrs. Turner mentions that she saw X around one a.m. (01:00), after the karaoke, but the evidence shows that X contacted the police - or her mother - at twelve fifty-nine (12:59) a.m. and then went to the hospital. Finally, the Court is surprised by Mrs.

K.’s testimony, who said that she saw X at the fair and she seemed drunk, while the laboratory test established that she did not consume any alcohol that night. Also, she said that she saw her playing basketball between one a.m. (01:00) and five a.m. (05:00), while she was at the hospital. Mrs. K. admitted that she had an argument with Mr. Clements about his relation with Mrs. M.. When he lived ... or he moved to Mrs. M.’s home, she said that he came back rapidly. When Sergeant Brown arrived at Mr. Clements’ home, he noticed a childproof device on the doorknob, just like X described.

When leaving, he had to ask Mrs. K. to open the door for him, because of the child lock. His testimony corroborates X’s testimony. [ 9 ] As for the second step, after having cited the relevant excerpts from Lifchus , [6] the judge concluded as follows: [7] The Court doesn’t have any reasonable doubt in this file. [ 10 ] Lastly, he stated the following with respect to the third step: [8] Third question. Based on the accepted evidence, the Court is convinced beyond a reasonable doubt of the guilt of the Accused on counts number 1, 2, 3, 4.

The Court does not have any... - it’s about count number 5, I just said it - ... any conclusive evidence on count number 5. * * * [ 11 ] The quality of the reasons set out in judgments represents one of the pillars on which the legitimacy of the courts rests. [9] In order to ensure such legitimacy, the obligation for a judge to give reasons for his decision fulfils three functions, which affect the scope of that obligation: [10] (1) reasons tell the parties affected by the decision the basis and rationale for the decision; (2) reasons provide public accountability of the judicial decision; and (3) reasons permit effective appellate review. [11] [ 12 ] Appellate courts must use a functional approach to assess the sufficiency of reasons. [12] Here is how the Supreme Court summarized the matter: [13] [35] In

summary, the cases confirm:

(1) Appellate courts are to take a functional, substantive approach to sufficiency of reasons, reading them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered.

(2) The basis for the trial judge’s verdict must be “intelligible”, or capable of being made out. In other words, a logical connection between the verdict and the basis for the verdict must be apparent. A detailed description of the judge’s process in arriving at the verdict is unnecessary.

(3) In determining whether the logical connection between the verdict and the basis for the verdict is established, one looks to the evidence, the submissions of counsel and the history of the trial to determine the “live” issues as they emerged during the trial. [References omitted] [ 13 ] It is for the party asserting the insufficiency of reasons to establish that "the trial judge’s reasons are so deficient that they foreclose meaningful appellate review". [14] This is a two-step analysis.

The court must first determine whether the reasons are inadequate and, if so, it must then determine whether the insufficiency prevents appellate review. [15] The sufficiency of reasons should not be measured in the abstract, but in terms of the answers the reasons provide to the essential elements of the dispute arising from the evidence and raised in argument.

The Court should intervene rather than substitute its own analysis of the evidence for that of the trial judge where the trial judge's reasoning is not clear from his reasons or the record and where the reliability and credibility of witnesses or the weight of contradictory evidence that the judge failed to resolve is at stake. [16] [ 14 ] Reasoning, however, does not require perfection, particularly where, as here, the judgment was rendered orally. Thus, a judge is not required to refer to each piece of evidence, nor does he have to revisit the evidence as a whole.

Similarly, the Court of Appeal must be able to read between the lines and take into account what is implicit in the judge's reasons, without, however, having to speculate on what the judge meant or on his reasoning. [17] [ 15 ] In the present case, while the judgment under appeal may not be exemplary, it is not generic, as was the case in Sheppard , and its reasons are sufficient to fulfil its purpose.

The appellant is in a position to understand the basis of the judge's reasoning as well as to challenge the judgment on appeal, as he has, in fact, done. [ 16 ] First, with regard to the appellant's claim that the judge essentially skipped the second and third steps of W. (D.) and merely limited himself to stating that he did not believe the appellant's version, it should be noted that the Supreme Court's remarks in that

judgment are not a recipe to be followed word for word, nor a sacrosanct formula. [18] Rather, they are a didactic expression of what the rule of reasonable doubt means in a case which, as here, relies heavily on the credibility and reliability of witnesses. That said, in the case at bar, the trial judge performed that analysis.

Although the analysis is not formally divided into the three steps, the reasons must be considered as a whole and not in isolation. [ 17 ] We must now determine whether the judge sufficiently analyzed the issues of witness credibility and reliability. [ 18 ] The appellant argues that he did not, both because the judge did not explain the reasons why he did not believe him and because he accepted the complainant's version without identifying its weaknesses and contradictions.

In short, he did not in any way resolve the difficulties raised by the evidence. [ 19 ] As to the first criticism, the judge noted certain contradictions in the appellant's version. The appellant began his testimony by stating that no one had come to his home on the evening of the events, while, later, he stated that his spouse's son and a friend had come over.

This changing version was also contradicted by some defence witnesses. [ 20 ] The judge also noted that the appellant had stated that he no longer used marijuana and that he had stopped drinking alcohol five years ago, although he admitted having drunk about five beers on the night of the events, without providing an explanation for having done so. Moreover, the judge referred to the appellant's version of his relationship with the complainant's mother, without commenting on that version explicitly.

The judge added that the appellant's testimony on these two points was contradicted by other witnesses for both the defence and the Crown. [ 21 ] The judge's conclusion not to accept the appellant's version, namely, the first step of W. (D.) , is therefore sufficiently substantiated. [ 22 ] With respect to the second step, it should be noted that the judge, after citing relevant excerpts from Lifchus , merely wrote that "The Court doesn’t have any reasonable doubt in this file". In this regard, it is necessary to refer more to the beginning of the judgment to find the analysis of the appellant's evidence.

Thus, after concluding that he did not believe the appellant's version, the judge also dismissed the testimony of the other defence witnesses, who claimed to have seen the plaintiff at around 1:00 a.m., even though the 9-1-1 call came in at 12:59 a.m.

The judge could have added, for example, that one of the appellant's witnesses even claimed to have seen the complainant at the end of the night, even though she was in the hospital, but that would have simply added to a rationale already present in the judgment. [ 23 ] While it is true that, as part of the second step, the judge did not formally refer to the appellant's testimony and the impact that it did or did not have on the existence of a reasonable doubt, it is apparent from the judge's earlier analysis that not only did he not accept the appellant's testimony, but that the appellant, having regard to all of the evidence, had not raised a reasonable doubt.

It is worth noting what the Supreme Court wrote on this subject in Vuradin : [19] [13] In R.E.M. , this Court also explained that a trial judge’s failure to explain why he rejected an accused’s plausible denial of the charges does not mean the reasons are deficient as long as the reasons generally demonstrate that, where the complainant’s evidence and the accused’s evidence conflicted, the trial judge accepted the complainant’s evidence.

No further explanation for rejecting the accused’s evidence is required as the convictions themselves raise a reasonable inference that the accused’s denial failed to raise a reasonable doubt. [ 24 ] The judge's reasons for his conclusion with respect to the second step of W. (D.) are therefore adequate. [ 25 ] The last element is the sufficiency of the prosecution's evidence to establish the appellant's guilt beyond a reasonable doubt, which is the subject of the third step.

On this point, three criticisms levelled at the judge by the appellant should be addressed. • First criticism [ 26 ] First, the appellant argues that the judge not only failed to point out the weaknesses in the complainant's testimony, but he also erroneously asserted that he saw no contradiction between the respondent's witnesses. [ 27 ] This argument is not convincing.

First, it should be noted that the elements raised by the appellant are ancillary, such as the imprecision regarding the chronology or the details of the events or the fact that the complainant forgot the appellant's last name when she met with the police officers or forgot that she had babysat his child. Moreover, while the elements may constitute inaccuracies, they do not, strictly speaking, involve contradictions, as the judge noted. [ 28 ] The same is true of the contradictions between the complainant's testimony and that of her friend.

On analysis, they are of little or no importance, or the complainant's testimony appears to be the more reliable of the two. [ 29 ] For example, while the friend's assertion that she realized that the complainant had left the park although she did not see her leave with the appellant certainly does not corroborate the complainant's testimony, it does not contradict it. [ 30 ] As for the smell of alcohol that the friend said she detected on the complainant's breath, the fact remains that she also stated that they had not had anything to drink all evening.

Moreover, not only is the issue of the complainant's sobriety secondary, but more importantly, as we will see below, it is essentially relevant for assessing the credibility of certain defence witnesses who stated that they had seen her drinking during the festivities. [ 31 ] Finally, while the friend's statement that she and the complainant left the park at 1:00 a.m. is not consistent with the complainant's version, it is also inconsistent with the time of the 9-1-1 call, making the complainant's version appear more accurate. [ 32 ] None of these elements, therefore, can disturb the essence of the complainant's version and affect the reliability of her testimony.

Thus, the judge's failure to discuss or refer to them does not vitiate his reasoning or scuttle its intelligibility. Contrary to the appellant's

contention, this case differs markedly from the situation in Dinardo , where the complainant had, at one point in her testimony, raised the possibility that she had invented the assault, something that the trial judge had not discussed at all. [20] [ 33 ] In addition, the complainant was 15 years old at the time of the events.

The Supreme Court noted, in another context, that adolescents may perceive time differently and that their memories tend to fade more quickly than those of adults. [21] Moreover, the difficult nature of the events experienced, the complainant's stress, which the judge noted, and the seven-year period that elapsed between the events and her testimony are, all combined, convincing elements indicating that the weaknesses identified did not call into question the reliability of the complainant's testimony. [ 34 ] Lastly, the presence of a security system on the appellant's door appears to have given the judge confidence in the reliability of the complainant's testimony.

She testified to this in detail, as did the police sergeant who, as the judge noted, claimed that he had to ask the appellant's spouse to open the door for him because of the security system. [ 35 ] This is important, because the complainant could not have known of the existence of this system without having been at the appellant's home.

The hypothesis raised by the appellant to the effect that the complainant had been in his home in the past to babysit his son is not sufficient to cast doubt on this point because, as he himself recounted, he had had the system installed after the complainant had come to his home and because the complainant's friend had managed to get in by putting his arm through the window frame to open the door. • Second criticism [ 36 ] With respect to the complainant's sobriety, the appellant criticizes the judge for referring to blood test results that were not filed into evidence, but about which the police sergeant testified.

It is true that the trial judge erred in law in this regard. The Crown suggests, however, that this is not decisive in any way and that s. 686(1)( b )(iii) Cr.C . should apply . [ 37 ] The evidence on this point is divided. The plaintiff asserted that she had not drunk anything. A friend of the appellant claimed that she had seen her drink during the festivities. The complainant's friend stated, as mentioned above, that the complainant's breath smelled of alcohol when she returned from the appellant's home, but claimed that they had not had anything to drink all day.

A police officer testified that he had seen no signs of alcohol in the complainant, but added that other police officers, who had seen her before him, had indicated the contrary. Lastly, the complainant's mother stated that when her daughter had woken her up, she had shown no signs of alcohol. [ 38 ] While the judge arguably did not sort out the evidence on this point, the fact remains that this matter has only an indirect impact. Although the judge used it to dismiss some of the defence testimony, other reasons, particularly those related to the chronology of the evening, lead to the same result.

In other respects, whether or not the complainant had consumed alcohol does not affect the reliability or credibility of her version. [ 39 ] This error is therefore harmless [22] and the curative provision should be applied. • Third criticism [ 40 ] Lastly, the appellant argues that the judge did not in any way discuss the charge of trafficking in cannabis. It is true that he said almost nothing on this matter, except to repeat the complainant's account of the events. The fact remains that he accepted her testimony, which is also valid as regards the trafficking offence.

It should be added that the judge also referred to the testimony of the complainant's friend, who stated that the complainant was in possession of cannabis when she left the appellant's home and that the substance was turned over to the police that evening. * * * [ 41 ] In fact, the appellant is inviting us to reassess the evidence. Not only is this not the role of the Court, but this invitation is inconsistent with the concept of insufficient reasons as a ground of appeal, as defined by the Supreme Court .

Notwithstanding the words the judge used in his judgment, which suggest that, in assessing the accused's version and reasonable doubt, he only considered the evidence he had accepted as opposed to the evidence as a whole, as is required, the exercise demonstrates that the judge did, in fact, take all of the evidence into account.

Indeed, the appellant, rightly so, does not raise any error in this regard. [ 42 ] In fact, the appellant's arguments are more consistent with the notion of insufficient evidence [23] or an unreasonable verdict, a ground of appeal that he does not invoke. [ 43 ] Sufficiency of reasons is neither a watered-down form of an unreasonable verdict nor is it, in and of itself, a stand-alone ground of appeal divorced from the functional test. [24] It only justifies the Court's intervention where the reasons, taken as a whole and in context, do not permit the appellant to exercise his legal right to an appeal or cause prejudice to his exercise of that right. [25] This is not the case here.

As in Braich , the reasons for judgment were no impediment to the appellant formulating an arguable appeal, whether on the basis of unreasonable verdict, error of law or miscarriage of justice. [26] [ 44 ] This ground of appeal must therefore fail. FOR THESE REASONS, THE COURT: [ 45 ] ALLOWS the appeal for the sole purpose of ordering a conditional stay of proceedings on the count of sexual assault under s. 271(1) (

a) of the Criminal Code .

MARK SCHRAGER, J.A. STÉPHANE SANSFAÇON, J.A. BENOÎT MOORE, J.A. Mtre Maxime Hébert Lafontaine LATOUR DORVAL For the appellant Mtre Isabelle Bouchard DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the respondent Date of hearing: October 28, 2020