2023 QCCQ 8946, 2023 QCCQ 8946

R. c. Bowman 2023 QCCQ 8946 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Criminal and Penal Division No: 500-01-236675-226 DATE: November 14 th , 2023 BY THE HONOURABLE ANTOINE PICHÉ, Q.C.J. HIS MAJESTY THE KING Prosecution v. JOVANTAI BOWMAN Accused JUDGMENT INTRODUCTION [ 1 ] The accused is charged on a nine (9) count indictment for the following offences: 1. On or about July 1, 2022, in Montréal, district of Montréal, for a sexual purpose, did touch a part of the body of X (2008-[...]), a person under the age of sixteen (16) years, committing thereby the indictable offence provided by

section 151a) of the Criminal Code . 2. On or about July 1, 2022, in Montréal, district of Montréal, for a sexual purpose, did invite, counsel or incite X (2008-[...]), a person under the age of sixteen (16) years, to touch her, committing thereby the indictable offence provided by

section 152a) of the Criminal Code . 3. On or about July 1, 2022, in Montréal, district of Montréal, did commit a sexual assault on X (2008-[...]), committing thereby the indictable offence provided by

section 271a) of the Criminal Code . 4. Between June 24, 2022 and July 3, 2022, in Montréal, district of Montréal, for a sexual purpose, did touch a part of the body of Y (2009-[...]), a person under the age of sixteen (16) years, committing thereby the indictable offence provided by

section 151a) of the Criminal Code . 5. Between June 24, 2022 and July 3, 2022, in Montréal, district of Montréal, did commit a sexual assault on Y (2009-[...]), committing thereby the indictable offence provided by

section 271a) of the Criminal Code . 6. On or about July 11, 2022, in Montréal, district of Montréal, for a sexual purpose, did touch a part of the body of Z (2013-[...]), a person under the age of sixteen (16) years, committing thereby the indictable offence provided by

section 151a) of the Criminal Code . 7. On or about July 11, 2022, in Montréal, district of Montréal, did commit a sexual assault on Z (2013-[...]4), committing thereby the indictable offence provided by

section 271a) of the Criminal Code . 8. On or about July 11, 2022, in Montréal, district of Montréal, for a sexual purpose, did touch a part of the body of A (2014-[...]), a person under the age of sixteen (16) years, committing thereby the indictable offence provided by

section 151a) of the Criminal Code . 9. On or about July 11, 2022, in Montréal, district of Montréal, did commit a sexual assault on A (2014-[...]), committing thereby the indictable offence provided by

section 271a) of the Criminal Code . [ 2 ] Each of the alleged events occurred in the neighbourhood where the accused and the complainants lived. [ 3 ] The first event concerns X, who was 14 years old at the time. She alleged that the accused grabbed her and touched her

buttocks in a park and that he sexually assaulted her in the bathroom of an apartment. [ 4 ] Expert evidence confirms presence of the accused DNA inside X’s bra. [ 5 ] The second event concerns Y, who was 12 years old at the time. She alleged that the accused was always trying to hug her when he saw her and that when he was doing so, he always grabbed her buttocks. [ 6 ] The third event concerns Z and A, who were respectively 8 and 7 years old at the time. The two little girls were playing in front of their apartment building in the presence of their grandparents.

Witnesses claim that the defendant hugged each of them and reached down to their buttocks. [ 7 ] The accused testified for his defence. He admitted having been in the company of each of the complainants at the time of the offences but denied any act of a sexual nature. [ 8 ] The Court is faced with contradictory versions that it must analyze in light of the case law developed since R. v.

W.(D.) . [1] [ 9 ] Although some of the behaviors alleged in each event are similar, the prosecution has not moved for the admissibility of evidence of similar acts. [ 10 ] The parties agreed that the Court must therefore analyze each event in isolation, as if the accused had undergone three separate trials. [2] [ 11 ] Both parties submitted written summaries of their position, which were relevant and useful. The Court strongly encourages this practice, which is all too rarely used.

PRINCIPLES Contradictory versions and reasonable doubt [ 12 ] When faced with contradictory versions, the Court does not have to choose between two versions.

Although we may have the natural reflex of thinking that one version is the truth and the other a lie, reality is rarely so binary. [ 13 ] It may be that both versions are lies, in whole or in part, just as it may be that both versions are presented honestly but are simply wrong. [ 14 ] The W.(D.) test was developed to avoid an analysis that would boil down to retaining the version that appears most plausible or truthful. [3] [ 15 ] Since the accused enjoys the presumption of innocence, it is up to the prosecutor to establish his guilt beyond any reasonable doubt. The accused bears no burden.

He does not have to establish that the opposite version is implausible, nor does he have the burden of raising a reasonable doubt as to his guilt. That burden rests solely and always with the prosecution. [ 16 ] The standard of proof beyond a reasonable doubt is more demanding than the standard of proof used to resolve civil disputes by a preponderance of the evidence. At the end of a civil trial, if the judge believes that the plaintiff's claims are more probable than the defendant's, the preponderance of evidence standard is met.

Whereas at the end of a criminal trial, if the judge believes it is more likely that the accused is guilty than innocent, the standard of proof beyond a reasonable doubt is not met and the accused must be acquitted. [4] [ 17 ] The standard of proof beyond a reasonable doubt does not, however, require absolute certainty of the accused's guilt.

Such a burden would be unreasonable and rarely met. [5] Rather, the level required is that of virtual certainty. [6] [ 18 ] As for reasonable doubt, it is defined as a doubt that is based on reason and common sense, and that follows logically from the evidence or lack of evidence. When such a doubt remains, the accused must be acquitted. In contrast, an imaginary, frivolous doubt based on sympathy or prejudice is not a reasonable doubt. [7] [ 19 ] In criminal law, there is no presumption that a witness is honest.

It is up to the judge to determine the degree of credibility and reliability he or she attaches to each of the testimonies heard during the trial.

This is obviously not an exact science, as our Supreme Court reminds us: " It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events". [8] [ 20 ] Credibility refers to the witness's personal characteristics, such as honesty and integrity, which can be seen in his or her behavior or in the way he or she answers questions.

Credibility is linked to the sincerity of the testimony and the truthfulness of what is said. [9] n this sense, it is intangible. [ 21 ] Reliability refers to the value of the story told by the person testifying, i.e., to his or her ability to observe, recall and relate a fact. Reliability is linked to the accuracy or correctness of the testimony.

It therefore has the advantage of being based on an objective approach. [10] A witness may honestly believe he is telling the truth, when in fact he is not, simply because he is mistaken. [ 22 ] Thus, the testimony of someone credible is not necessarily reliable, and vice versa.

[23] Analysis of the reliability and credibility of a witness's testimony, takes into account the answers given by the witness duringexamination and cross-examination. Through the questions they ask, lawyers try to bring out the strengths or weaknesses of eachwitness.

The more decisive a witness's testimony is in determining the guilt or innocence of the accused, the more important the question of its reliability becomes.[11] [24] The Court of Appeal recently provided an in-depth analysis of the principles that should guide courts in their analysis of witnesscredibility and reliability: « Plusieurs facteurs pertinents à l’évaluation de la crédibilité et de la fiabilité des témoins peuvent être dégagés de la jurisprudence et dela doctrine : 1) l'intégrité générale et l'intelligence du témoin; 2) sa capacité d'observation; 3) sa capacité de communiquer; 4) la fidélitéde la mémoire; 5) l'exactitude de sa déposition; 6) sa volonté de dire la vérité de bonne foi; 7) sa sincérité, sa franchise, ses préjugés;8) l’intérêt du témoin; 9) le caractère évasif ou les réticences de son témoignage; 10) le comportement du témoin avec la prudencerequise; 11) la compatibilité du témoignage avec l'ensemble de la preuve, y compris la preuve confirmative; 12) l'existence decontradictions avec les autres témoignages et les éléments de preuve; 13) la plausibilité du témoignage; 14) la cohérence intrinsèque dutémoignage[12]. » [25] As for analyzing the credibility and reliability of young children, as the Ontario Court of Appeal mentioned in Stewart[13],despite the adaptation of the credibility analysis that the Court must make in the presence of young children, it must be careful not tolower the standard of reliability required before pronouncing a verdict: « In R. v.

W.(R.), McLachlin J. comments that there have been two major changes in recent years in the approach that courts should taketo the evidence of young children. The first is the removal of the notion, found at common law and codified in legislation, that theevidence of children was inherently unreliable and therefore to be treated with special caution. The second is a new appreciation that itmay be wrong to apply adult tests for credibility to the evidence of children. With respect to the second change, she cites Wilson J. in R.v.

B. (G.) (No. 2) at pp. 54-55 S.C.R., pp. 219-20 C.C.C., where Wilson J. advocates a common sense approach when dealing with thetestimony of young children and advises judges not to impose the same exacting standards upon them as upon adults. Wilson J.emphasizes that the courts should continue to carefully assess the credibility of child witnesses and she does not suggest that the standardof proof beyond a reasonable doubt should cease to apply in criminal cases in which young children have been victimized. In R. v.

W.(R.), McLachlin J. adds that we should not approach the evidence of children from the perspective of rigid stereotypes and we shouldadopt a "common sense" approach which takes into account the strengths and weaknesses characterizing the evidence offered in theparticular case. As I understand these two judgments, we must assess witnesses of tender years for what they are, children, and not adults. We should notexpect them as witnesses to perform in the same manner as adults.

This does not mean, however, that we should subject the testimony ofchildren to a lower level of scrutiny for reliability than we would do adults. My concern is that some trial judges may be inadvertentlyrelaxing the proper level of scrutiny to which the evidence of children should be subjected. » [26] The accused may be convicted on the basis of testimony alone. When this is the case, the Court must explain its conclusions oncredibility and reasonable doubt in light of all the evidence.

Its explanations must rule out the possibility that it has engaged in a credibility contest and demonstrate that it has instead applied the standard of proof beyond a reasonable doubt.[14] [27] Furthermore, the analysis of witness credibility must not be carried out in a vacuum. The trier of fact must consider all the evidence in order to assess the credibility of each witness.[15] [28] This analysis of the evidence as a whole applies also to the first step of the W. (

D) test. The Court must not assess the credibility of the accused in isolation.

It must do so in light of the evidence as a whole.[16] [29] Finally, considering that the accused is facing an indictment bringing together various events, it seems relevant to specify that,even if the verdicts regarding each event must be based solely on evidence admissible to that event, to assess the credibility of eachwitness, including the accused, the Court is entitled to consider all the evidence given by that witness: « [31] As I have said, the accused contends that the trial judge erred in law when making her credibility assessment of the accused’stestimony as she considered his evidence as a whole, resulting in a cross-pollination between counts.

The trial judge may well haveconsidered the entirety of the accused’s testimony in making her assessment of his evidence. She was entitled to do so. That did notresult in the kind of propensity reasoning prohibited by law. As stated by the Supreme Court of Canada in R. v PEC, 2005 SCC 19 (at para 1): This appeal comes to this Court as of right on the question of whether the trial judge erred by failing to deal with the evidence on eachcount separately when she considered the evidence relating to other counts in assessing the credibility of the appellant in respect of aparticular set of counts.

In our view, the trial judge made no such error. The verdict on each count of an indictment must, of course, bebased on evidence admissible with respect to that count; in assessing the credibility of each witness, including the accused, the trial judgewas entitled, however, to consider the totality of the evidence given by that witness.

In doing so, she did not engage in a prohibited lineof reasoning contrary to the rule against similar fact evidence. [32] In assessing the accused’s testimony as a whole, the trial judge was properly exercising her function as the trier of fact andabsent palpable and overriding error, her findings are entitled to deference. She was entitled to accept some, none or all of histestimony.

She rejected his evidence about not visiting child pornography sites and not having knowledge of the child pornographyimages on his laptop. [33] Furthermore, in her reasons, the trial judge reminded herself of the need to consider the evidence in support of each countseparately and then very deliberately proceeded to do so. In convicting the accused of Count 4, she did not rely on evidence relating toany of the other counts, including, as I have explained, Count 3. »[17]

[Emphase by the Court] Constituent elements of the alleged offences Sexual Assault,

section 271

a) Cr.C. (counts 3, 5, 7 and 9) [30] The actus reus of sexual assault consists of unwanted sexual touching. It is established by proof of three elements: the touching,the objectively sexual nature of the touching and the absence of consent. The first two elements are objective, requiring proof that theaccused's actions were voluntary. The third element of the actus reus, lack of consent, is subjective.

This element is determined by thecomplainant's state of mind in relation to the touching at the time it occurred. [31] Regarding the three elements of the actus reus, the prosecution refers in particular to the following passages of case law: I. Use of force • R. v. Cuerrier, (SCC), 1998 2 R.C.S. 371, para. 11: Any unwanted touching, no matter how minimal theforce used, constitutes sexual assault (fondling, kissing). II. The sexual nature of the assault • R. v.

Chase, (SCC), 1987 2 R.C.S. 293, para. 11: To determine whether the alleged assault is sexual in nature,the trier of facts must consider whether, given all the circumstances, a reasonable person could perceive the sexual or carnal context ofthe assault. It is an objective criterion that relates to the victim’s sexual integrity. i. The part of the body touched; ii. Nature of contact; iii. The situation in which it occurred; iv. The words and gestures that accompanied the act; v. All other circumstances, including threats or use of force. • See also R. c. Grey, 2010 QCCA 1776, para. 61, and R. c.

Leclerc, 2018 QCCA 236, para. 8. III. The absence of consent (Paragraph 273.1 Cr.C.) • R. v. Poitras, QCCA 1767 para. 16: The accused’s perception is irrelevant to the analysis of consent: it is the complainant’sactual state of mind at the time of the facts. • It is important not to confuse passivity with consent: tacit or implicit consent does not exist. Defense of mistake of facts as toconsent or tacit acquiescence is not a defense. [32] The mens rea of the offence of sexual assault is: I. The general intent to engage in touching a person sexually. II.

Knowing that the person does not consent, or being reckless or wilfully blind to that lack of consent. • R. c. Esau, (SCC), 1997 2 R.C.S. 777, para. 70: Wilful ignorance evokes a deliberate refusal to see the factsand circumstances. It is the legal equivalent of turning a blind eye closing one’s eyes to something, not seeing or hearing what there is tosee or hear. It’s presuming that the complainant is consenting without verifying whether, in fact, he or she is. The accused has no right todelude himself or to take clear advantage from passive or equivocal response.

He must sincerely believe that the complainant consented. • R. c. Barton, 2019 CSC 33, para. 123: Paragraph 273.2(

b) Cr.C. imposes a condition precedent to the defence of a sincere butmistaken belief in the consent: the absence of reasonable measures excludes this defence. This condition has both an objective and asubjective dimension. The accused must take objectively reasonable measures to ascertain consent and the reasonableness of thesemeasures must be assessed the circumstances known to him at the time. Sexual interference,

section 151a) Cr.C. (counts 1, 4, 6 and 8) [33] This

section prohibits anyone, for a sexual purpose, to touch, directly or indirectly, with a part of the body or with an object, anypart of the body of a person under the age of sixteen years. [34] The constituent elements of that offence are the following: I. Touching II. Sexual purpose of touching • R. c. Morrisey, 2011 ABCA 150, para. 21: “Touching is done for a sexual purpose, if it is done for one’s sexual gratificationor to violate a person’s sexual integrity. In determining whether touching takes place in circumstances of a sexual purpose, we are of the

view that a trial judge can in assessing the mens rea of the accused, consider whether the sexual context of the touching would be apparent to any reasonable observer.” III. Evidence of specific intent: the accused seeks sexual gratification when he touches the child • R . c.

Morrisey , 2011 ABCA 150 , para. 21 : To determine whether the accused as seeking sexual gratification, the court must assess the accused’s state of mind and ask whether a reasonable person would have perceived the gesture, the touch, as sexual touching. • The element of sexual gratification may be established by means of direct or circumstantial evidence, “(i.e. the only reasonable inference to be drawn from the circumstantial evidence or from the nature of the touching itself is that the accused committed the touching for a sexual purpose)” R . c. Morrisey , 2011 ABCA 150 , para. 21 . • R . c.

S.L., 2013 ONCA 176 , paras. 37-39 : Requirement that sexual contact be intentional and not accidental. • R. c. J.L., 2018 QCCA 815 , para. 36 : The offence punishable under

section 151 Cr.C . is a specific intentional crime for which it is not enough that contact with the child be deliberate, but also requires that the person who touched the child’s body must have done so in search of sexual gratification or with the aim of violating the child’s sexual integrity. IV. The complainant is under sixteen years of age. Invitation to sexual touching,

section 152

a) Cr.C . (count 2) [ 35 ] This

section prohibits anyone, for a sexual purpose, to invite, counsel or incite a person under the age of 16 years to touch, directly or indirectly, with a part of her body or with an object, the body of any person, including the body of the person who so invite, counsel or incite and the body of the person under the age of 16 years. [ 36 ] This is an offence of communication.

The Alberta Court of Appeal thus defines the prosecutor's burden of establishing the guilt of the accused in Legare : « [41] For s.152, the Crown must show that the accused knowingly communicated for a sexual purpose with a child under the age of fourteen, and that the accused either intended that the child would receive that communication as being an invitation, incitement or counselling to do the physical conduct s. 152 would avoid, or that the accused knew that there was a substantial and unjustified risk that the child would receive that communication as being an invitation, incitement or counselling to do that physical conduct.

The actus reus and mens rea must co-exist, so in that sense the mens rea must be present when the communication occurs. » [18] [ 37 ] Consequently, in order to prove guilt, the prosecution must therefore establish, beyond any reasonable doubt, the following elements: I. A communication that invites, counsels or incites to touch a person. II. For a sexual purpose. III. The specific intention of the accused to transmit that communication as being an invitation, incitement, or counselling to touch a person. IV. That the child receiving the communication was under sixteen years old, as the

section now stands, unlike at the moment of the Legare case.

SUMMARY OF FACTS AND ANALYSIS The event of July 1 st , 2022, regarding X (counts 1, 2 and 3) X’s testimony [ 38 ] At the time of the event, X, and the accused had known each other for about 3 years, having crossed paths on various occasions in the neighbourhood. [ 39 ] The accused was living close to X’s mother’s apartment. X knew his first name and his age. [ 40 ] The accused seemed strange to her. When she was younger, he sometimes gave her money or other items such as shoes. He was also giving “ weird” hugs.

She is not able to be more specific than saying that “ there is something wrong about him” that he was “ weirdo” . [ 41 ] On July 1 st , 2022, X was running away from the group home where she was placed under Youth protection act provisions. [ 42 ] She consumed a few alcoholic beverages during the day. [ 43 ] In the evening, she met the accused in a park next to their district. [ 44 ] He came to her and grabbed her, touched her waist, her back and her buttocks over her pants. She pushed him away. She used the verb “grab” in opposition to “hug” because a hug is comfortable.

That was not a hug. [ 45 ] X could not go home because she was sure her mother would call the police and she would be brought back to the group home

like the last time she ran away. [ 46 ] The accused proposed that she follow him to his mother’s apartment. She accepted. [ 47 ] When they arrived, the door was locked, and no one answered. [ 48 ] The accused suggested that they go to his friend’s apartment. [ 49 ] The accused and her went in the living room. Two little kids were there. She also noticed the presence of two adults, the children's father, and another person. The adults were in and out of the apartment. [ 50 ] She was scared for the kids because the accused was acting “weird” towards them. He was touching their buttocks.

She was trying to keep the kids away from him. [ 51 ] While she was playing with the kids, the accused grabbed her to make her sit on him. She tried to leave but the accused held her. [ 52 ] The accused then put his hand inside her pants, touching her vagina. [ 53 ] She stood up. The accused took her hand and asked her to follow him. She said “no”. He told her he wanted to talk to her. She replied that they could talk in the living room. He said that they could not. She was scared, she did not know what he was capable of. [ 54 ] He brought her to the bathroom. He turned off the light and locked the door.

He pushed her on the wall, not violently, she specified. She froze, she was really scared. [ 55 ] He pulled down her pants and tried to put his penis “in the back” and “in the front” but he said that it did not fit. [ 56 ] The accused then pulled up her sweater and took down the cups of her bra. He bit and sucked her nipples. Afterwards, he went down and also put his mouth on her vagina. [ 57 ] Someone banged on the door which put an end to the accused’s actions. [ 58 ] They put their clothes back on and left the bathroom. [ 59 ] She decided to leave the apartment.

The accused decided to follow her. [ 60 ] Once outside, several people from her entourage were outside looking for her: her mother, her sister, their respective boyfriends, and her friend Y. [ 61 ] Although she knew nothing yet, her mother started screaming at the accused. X believed that her mother felt that something was wrong.

That is why she reacted that way. [ 62 ] The accused left and her mother called the police. [ 63 ] The police seized her clothes. [19] [ 64 ] When asked why she did not say anything to the adults in the apartment, she answered that it would be her word against the accused’s. [ 65 ] On July 13 th , X delivered a video statement in which she summarized the preceding events. This statement is filed as Exhibit P- 4. [ 66 ] As for her motivation the go forward with the proceeding, she said that it would prevent others to live the same thing than her.

X’s mother testimony [ 67 ] X’s mother received a call from X’s group home informing her that her daughter had run away. [ 68 ] Having learned that her daughter would be in the area, she and her partner, W., Y and E., set out to find her. [ 69 ] She was not very aware of the accused before that day. [ 70 ] She became enraged when she saw the accused with her daughter. She did not understand what her teenage daughter was doing with an adult man like the accused. [ 71 ] In addition, her daughter seemed under the influence, uncomfortable and was crying. [ 72 ] She started yelling at the accused and ran after him.

The accused then ran off. [ 73 ] She came back to X and asked her if the accused had done something to her. X answered yes. [ 74 ] X’s mother then called the police.

DNA Evidence [ 75 ] Mrs. Martine Lapointe, forensic biology specialist, searched traces of DNA among the vaginal swabs and the clothing supplied by X on July 2 nd , 2022. [ 76 ] She concluded that no semen was found on any of the items. [ 77 ] No male DNA were present in the vaginal swabs nor the panties. [ 78 ] However, the accused’s DNA was found inside X’s bra cups. [20] [ 79 ] Mrs. Lapointe indicated that a small amount of the accused’s DNA was present.

This having been said, nowadays, considering the sensitive techniques used, it is common to get positive results even with so little amount of DNA. [ 80 ] She cannot specify how or when the accused’s DNA could have gotten inside X’s bra cup. [ 81 ] In general terms, Mrs. Lapointe indicated that the longer the contact is made, the more likely that DNA will be recovered. [ 82 ] In the same vein, it is more likely to find DNA if there has been rubbing rather than just touching. There is also more DNA in semen and saliva than on the skin.

The accused testimony [ 83 ] The accused mentioned that on July 1 st , 2022, he left home around 7: 00 PM to do some cardio at the football field. [ 84 ] At 9 : 00 PM, he left to go home but no one was present at his mother’s apartment. [ 85 ] He left the building by the back door and saw X who called out to him. He knew her, he used to see her almost everyday. [ 86 ] He greeted her, asked her how she was doing. Nothing more. [ 87 ] Then X was following him.

He asked her why she was following him, she told him that she had nowhere to go. [ 88 ] The accused suggested they go to his friend’s apartment to call his mother. [ 89 ] He and X played with the two little girls in the living room. [ 90 ] One of them vomited on X’s chest. [ 91 ] The accused went to the kitchen to grab something to clean the mess on X’s chest.

She then went to the bathroom to finish cleaning up. [ 92 ] He said that X was wearing black leggings, a black hoodie, a shirt underneath and a bra. [ 93 ] Once out of the bathroom, she told him she had to leave to go somewhere. [ 94 ] He stayed to call his mother. He then went home and played with his nephew. [ 95 ] He stayed at his friend’s apartment for about 15 minutes. X left 5 minutes before him. [ 96 ] In cross-examination, the accused mentioned that it was X who gave him a hug in the park.

She put her arms around his waist. [ 97 ] He mentioned that he told her that he was going to his friend’s apartment to listen to music. He denied offering X to come with him. [ 98 ] He confirmed that some adults were present and were going in and out of the apartment.

The mother of the kids was in his friend’s bedroom. [ 99 ] He mentioned that when the child vomited on X, she was wearing a hoodie and a camisole, but she never took off her hoodie. [ 100 ] He tried to wipe the vomit off on the top of the hoodie. [ 101 ] X leaved after and he left 5 minutes later. [ 102 ] He did not leave with X, did not see her crying on the street. X’s mother did not scream at him, and no one was on the street when he got home. [ 103 ] He tried to call his mother 5 or 6 times from his friend’s apartment. She finally answered around 11: 00 PM, so he was able to go home.

[ 104 ] He said he thought that X was 18 years old because he saw her talking with adults. [ 105 ] He never saw X’s bra and does not know how his DNA could have been found on it. Browne v. Dunn principle [ 106 ] In accordance with the Court of Appeal's reasoning in Chandroo [21] , at the conclusion of the accused's testimony, the Court drew the parties’ attention to elements that might have violated the principle of fairness developed since Browne v. Dunn [22] regarding X evidence. [ 107 ] The Defence acknowledged that a breach of the Browne v.

Dunn ’s principle occurred. [ 108 ] It suggests that the appropriate remedy is that the Court appreciate the effect of that breach in its assessment of the whole of the evidence. [ 109 ] For its part, the prosecution considers that the appropriate remedy is to recall X so that she can be cross-examined on the elements that are the subject of the breach. [ 110 ] The Court concluded that, through his testimony, the accused led evidence that would contradict or impeach the evidence of the prosecution on a significant matter without having first cross-examined X on his version of the event. [ 111 ] The Court concluded that the most appropriate remedy in the circumstances is to recall X to be cross-examined on the following subject: • That she was the one following the accused in the park, not the other way around. • When they were in the accused’s friend apartment, playing with the children, one of them vomited on X’s chest. • That X said that she had somewhere to go and left alone without the accused. [ 112 ] X has been essentially cross-examined about the vomiting event. [ 113 ] She specifically denied any vomiting.

That did not happen according to her. She also denied that the accused cleaned up the mess on her chest. Analysis of X’s event (Counts 1 to 3) [ 114 ] The Court does not accept the accused's version, which does not leave it with a reasonable doubt neither. [ 115 ] Various elements affect his credibility and reliability.

Here are some examples: • Why he wanted to go to his friend’s place [ 116 ] At the beginning of the cross-examination, the accused mentioned that he wanted to go to his friend’s apartment to listen to music. [ 117 ] In examination, he said that he went there to call his mother. [ 118 ] The fact that he claims to have spent 15 minutes at his friend's apartment is also rather incompatible with the fact that he wanted to go there to listen to music. • The time spent in the apartment [ 119 ] According to the accused’s testimony, he spent 15 minutes in the apartment. [ 120 ] He said he met X around 9: 00 PM.

They went to his friend’s apartment almost immediately. [ 121 ] He declared that his mother finally answered the telephone at 11 : 00 PM and then he went home. Obviously, the accused spent more than 15 minutes in the apartment. [ 122 ] In addition, it seems also incoherent that X followed him to the apartment, only to declare 10 minutes later that she suddenly had somewhere to go.

• The age of X [ 123 ] The accused said he thought that X was 18 years old because he saw her talking with adults. [ 124 ] At first sight, assess X’s age based solely on the fact that she talks to older people is dubious. This is not a reasonable measure to ascertain her age. [ 125 ] This assertion is even more dubious considering that the accused knew X for at least two years when the event occurred and that he used to see her every day.

That means that the accused knew X since she was 12 years old and he knew that she was living with her mother. [ 126 ] In addition, the Court had the opportunity to view X's video statement of July 13, 2022 and to see her testify at the trial.

It is clear from the evidence presented that X did not have the appearance of an 18-year-old. [23] • X was wearing a bra [ 127 ] When he described X’s clothes, the accused mentioned that she was wearing a bra. [ 128 ] The Court wonders how the accused could have known she was wearing a bra since he said he never saw it and that X never took off her hoodie. • X left the apartment alone [ 129 ] The accused claims that X left the apartment alone which is specifically contradicted by X and her mother. [ 130 ] X’s mother testimony on this subject is convincing.

The Court has no doubt that the accused and X were together when X’s mother saw them that night. [ 131 ] The Court does not believe that the accused could have forgotten being shouted at and chased by X’s mother. Rather, the accused's testimony suggests that he is trying to dissociate himself from the moment preceding X's revelations. • The vomiting story [ 132 ] X was not asked any questions about the vomit episode during her testimony. [ 133 ] When she was recalled, she clearly denied it.

Her reaction to this question was spontaneous and came across as blatantly sincere. [ 134 ] Clearly, the accused knew that his DNA had been found inside X's bra.

His testimony about the vomiting on X’s chest and his attempt to remove the vomiting seems like a clumsy explanation to the presence of his DNA in that bra. • The DNA evidence [ 135 ] The DNA evidence also contradicted the accused’s version. [ 136 ] According to his testimony, the accused never saw the bra of X and never touched the skin of her chest. [ 137 ] The presence of his DNA suggests the contrary. [ 138 ] The defence argued that the presence of his DNA could be explainable by a possible transfer of DNA. [ 139 ] This argument implies that X could have touched the inside of her bra while the accused's DNA was on her hands. [ 140 ] First, the defence did not question the expert on that specific hypothesis. [ 141 ] Second, this suggestion is highly speculative.

Although DNA transfer is scientifically possible, it seems unlikely, in the circumstances of this case, that this is what explains the presence of the accused's DNA in X's bra. [ 142 ] It is the type of speculation that the Supreme Court rejected in Villaroman . [24] [ 143 ] In addition, X and the accused were not living in the same place and were not in contact on a daily basis. The period over which such a transfer would have been possible is therefore relatively short. [ 144 ] It should also be noted that the accused's DNA was not found on X's pants.

That means that, according to that argument, that the only DNA transfer that would be possible to find is the one that led to the discovery of the accused DNA inside X’s bra. [ 145 ] The DNA transfer hypothesis is not supported by the evidence, it is purely speculative, and the Court has no hesitation in rejecting it.

[ 146 ] The accumulation of all the above brings the Court to conclude that the accused's version is not credible and not reliable. The Court does not believe the accused.

It does not leave any reasonable doubt neither. [ 147 ] As for the third stage of W.(D). analysis, the defence considers that the reliability and the credibility of X is affected by various elements. [ 148 ] Firstly, her adventures following her escape from the group home would be strewn with exaggerations and inconsistencies. [ 149 ] This part of X’s testimony is quite collateral to the case at bar and the Court disagrees. [ 150 ] The Court does not find inconceivable that a citizen showed a desire to help X in a MacDonald’s restaurant or that X met a homeless person during the night she spent outside. [ 151 ] It is no more improbable that she consumed around fifteen cans of an alcoholic product, the nature of which we do not know because no one asked her.

The Court also do not know on which period, for the same reason. [ 152 ] Secondly, the defence submitted that X’s version lacks details concerning the sexual assault. [ 153 ] The Court also disagrees.

X explained the touching in the park, the way the accused tried to make her “crunch” on him in the bathroom while he was seated on the toilet, that the accused said that “it doesn’t fit” when he tried to put his penis in her vagina and her rectum, how he undressed her, that no condom was involved, that the accused turned off the light and locked the door when they entered the bathroom, etc. [ 154 ] Without affirming that X’s testimony covers every possible detail, it is not suffering from a lack of details which prevents from grasping the chronology of events. [ 155 ] It is right to say that she was not able to describe the accused’s penis.

This is not surprising. She never said she saw or touched it. Once they entered the bathroom, the accused turn off the light. [ 156 ] The defence also suggests that X could have a motive for fabricating her accusations against the accused: to avoid being scolded by her mother and being returned to her group home. [ 157 ] This fabricated allegation has no factual basis in the present case. First of all, that aspect was not really explored during X’s testimony. Secondly, denouncing the sexual assault of which she was victim, did not prevent her from being returned to her group home.

Lastly, X presents her version of the event before the result of the DNA expertise is known. [ 158 ] About DNA evidence, the defence submitted that the absence of the accused DNA in the vagina swaps and the panties contradict X’s testimony. [ 159 ] The defence referred the Court to Michaud [25] case, concerning the effect of the absence of DNA in these items and referred more specifically to the following paragraphs: «[47] L’appelant reproche également au juge de ne pas avoir considéré l’absence d’ADN masculin dans les écouvillons anaux/rectaux.

De fait, le juge n’en parle pas dans le cadre de son analyse, alors qu’il revient sur la tache de sang « au niveau des fesses » de la culotte et sur la présence de l’ADN de l’appelant de chaque côté. En somme, il prend en compte les éléments du rapport d’expertise en biologie/ADN qui sont favorables à la version de la plaignante, mais pas celui pouvant être favorable à la version de l’appelant . [48] Le reproche est fondé. Je rappelle que le rapport d’expertise établit la présence de l’ADN de l’appelant dans les écouvillons vaginaux.

Selon le témoignage de l’experte en biologie judiciaire, il y avait autant de chances de trouver de l’ADN masculin dans les écouvillons anaux/rectaux à la suite d’une relation anale. Vu les témoignages contradictoires sur le type de relation sexuelle (anale selon la plaignante et vaginale selon l’appelant) et la description donnée par la plaignante des actes de sodomie, l’absence d’ADN masculin dans la région anale/rectale est un élément de preuve important dont le juge devait tenir compte dans l’évaluation de la crédibilité .

Il ne pouvait considérer seulement les éléments du rapport d’expertise qui appuyaient la version de la plaignante.» (Emphasis by the Court, references omitted) [ 160 ] The situation in the Michaud case is very different from the present one. [ 161 ] In Michaud , the plaintiff claimed that she and the accused had extensive sexual intercourse involving both anal and vaginal penetration. [ 162 ] The accused admitted the vaginal intercourse but denied sodomy and affirmed that the plaintiff was consenting to that act. [ 163 ] In this context, the presence of Michaud DNA in the vaginal samples did not contradict the version of the accused.

On the contrary, it even tends to corroborate it. [ 164 ] In the present case, the accused denied any sexual contact with X. The presence of his DNA inside X’s bra tends to contradict his version. [ 165 ] As for the absence of DNA on the vaginal swabs and panties, according to X's testimony, contacts with the accused's penis were short-lived. No penetration was alleged in the case.

According to X’s testimony, the penis of the accused simply touched X’s body. [ 166 ] As for the fact that the accused put his mouth on X's vagina after biting and sucking her nipples, the Court does not know whether the sample was taken inside X's vulva or vagina or outside, in the clitoral area for example. The evidence is silent on this subject.

[ 167 ] In this context, the Court does not see how the DNA evidence could be considered other than X’s testimony corroboration. [ 168 ] There is no contradiction on the relevant aspects of X’s testimony. [ 169 ] The emotional state in which X's mother found her also constitutes circumstantial evidence that the Court considers in analyzing X's credibility [26] . [ 170 ] Considering the evidence as a whole, the Court concludes that the guilt of the accused is established, beyond a reasonable doubt, in relation of the first and third count. [ 171 ] Considering that conclusion, the Court will order a stay of proceeding on the third count. [27] [ 172 ] Regarding the second count, the Court is not convinced beyond a reasonable doubt of the guilt of the accused. [ 173 ] This charge was solely based on the words “suck that thing” that X mentioned once in her testimony. [ 174 ] Obviously, the use of these terms could be sufficient to result in a conviction if their context and the fact that it had been pronounced is clearly established.

Which is not the case in this instance. [ 175 ] These words would have been uttered shortly after she and the accused entered the bathroom. No other detail was provided. [ 176 ] The assumption is that the accused was asking X to perform oral sex on him. But no action was described following these words. The lights were turned off, it was completely dark in the bathroom, there is no evidence that the accused tried to make X performing a fellatio.

Even if it is not required that an action follow the communication, that evidence would confirm the inference to be drawn from the words “suck that thing”. [ 177 ] In addition, X mentioned, at two different occasions, that the only thing the accused said while they were in the bathroom was « it doesn’t fit». [ 178 ] Which leaves a reasonable doubt as to the words spoken and their meaning. Consequently, the accused will be acquitted of the second count.

The events regarding Y (Counts 4 and 5) The testimony of Y [ 179 ] Y knew the accused since a while before the events. [ 180 ] The accused occasionally played with her younger brother. Once, he came to their apartment, that is how she met him for the first time. [ 181 ] Her mother and the accused’s mother also know each other.

Her mother left her younger brother and her in the accused’s apartment once because she had a medical appointment. [ 182 ] Since then, every time the accused saw her, he grabbed her and touched her buttocks. [ 183 ] On July 3, 2022, around 8:30 PM, Y’s mother ordered pizza for the lifeguards of the pool. Y was heading towards the swimming pool to advise them to wait for the pizza to arrive. [ 184 ] The accused was staring at her from his window. She saw him leaving his building and walking towards a tree which is on the way to the swimming pool. While she was passing by, the accused grabbed her and hugged her.

She pushed him away, but he grabbed her again and touched her buttocks with his left hand. [ 185 ] She ran to the pool and explained the situation to the lifeguards that were coming out of the pool building. [ 186 ] When she returned home, her friend T. told her mother what had happened. Y then explained everything to her mother. [ 187 ] She said that every time the accused saw her, he came to her, grabbed her and touched her the same way.

That the accused had notably done the same thing a week before. [ 188 ] Once, at the pool’s chalet, he asked her to follow him, but she refused. [ 189 ] One of her friends lives in the same building than the accused. One day, while she was between the two doors in the entrance of the building, the accused came to her, said “Hi”, asked her how she was, hugged her, grabbed her buttocks and left. [ 190 ] It lasted a few seconds every time. It did not matter who was around, he was doing the same thing in front of the other kids.

But not when adults were there. [ 191 ] Even if the accused speaks English, it was useless to talk to him, it goes in one ear and out the other. She never had a structured conversation with him.

[ 192 ] He was always laughing, smiling but in a weird manner. [ 193 ] She discussed the situation with other girls of the neighborhood as C., K., N. and another K. They were all between 11 and 15 years old at that time. The accused’s testimony [ 194 ] He confirmed that he met Y through her little brother. The accused was letting him play video games on his telephone. [ 195 ] He was seeing Y frequently. He was asking her how she was doing, where was her brother. He was giving her fist bumps and sometimes he was hugging her.

It seemed more appropriate to him to give her a hug because she is a girl. [ 196 ] When he was hugging her, he always put his arms around her stomach or her waist. Nothing more. [ 197 ] Regarding July 3 rd , he saw Y from the park while he was playing basketball with his friend E.. He said “hi” to her but does not think he hugged her. [ 198 ] He said that she was at the park alone when he first saw her, then she went to the pool. [ 199 ] He mentioned that he saw her two weeks before. She said “hi” first then he hugged her. She was happy and smiling and she was still smiling after his hug.

In fact, to his recollection, Y was the one who introduced the hugging.

Analysis of counts regarding Y (Counts 4 and 5) [ 200 ] The credibility of the accused is already affected for the reasons mentioned above. [ 201 ] The Court noticed that, as he did for X and as he did for A and Z, he attributed the initiative of the contact to Y. [ 202 ] Despite her young age, Y is the witness who spoke with the most ease, the most vocabulary and whose testimony was the clearest and the most coherent of all the witnesses heard during the trial. [ 203 ] On the event of July 3 rd , the accused spied on her and headed his way to intercept her, grab her, and touch her buttocks. [ 204 ] That behavior and the repetition of the events lead the Court to conclude beyond reasonable doubt that the accused had a sexual gratification by acting this way. [ 205 ] The guilt of the accused is established, beyond a reasonable doubt, in relation of the fourth and the fifth count. [ 206 ] This being said, considering that conclusion, the Court will order a stay of proceeding on the fifth count. [28] The events regarding Z and A (Counts 6 to 9) The testimonies of Z, A and their Grandparents [ 207 ] Despite some differences in their testimony, the essence of the evidence they provide can be summed up as follows. [ 208 ] On July 11, 2022, the four witnesses were outside in front of their building.

A and Z were playing together while Z’s grandfather and A’s grandmother were sitting close to them and were looking at the two girls. [ 209 ] They all know the accused to a greater or lesser extent, as he lives in the same area. The accused has a habit of greeting people they meet and giving them fist bumps. [ 210 ] That afternoon, the accused bass by the little girls who were on the sidewalk facing each other. He hugged each of them shortly.

His hand went down and grabbed the buttocks of each girl while doing so. [ 211 ] The two grandparents spontaneously reacted vigorously when they saw the accused's hand touch their granddaughter's bottom. [ 212 ] At that moment, the accused’s mother told him to be careful how he touched people and to come and join her. [ 213 ] A’s grandmother call the police right away. [ 214 ] Rumors were circulating that the accused had engaged in inappropriate behavior shortly beforehand, but they never witnessed it.

[ 215 ] It was the first time that the accused hugged Z or A. The accused’s version [ 216 ] The accused remembers the event. He said that he knows A. He just said “Hi!” [ 217 ] He said that normally he was only giving fist bumps. This time, the girls were happy to see him and came to him, so he gave them a hug. [ 218 ] He described the hug he did to the girls. He does not remember where he put his arms, but he said that he did not touch their lower back or their buttocks. [ 219 ] He did not hug them the way he hugged older people because he has to be careful no to touch their body parts as their breast or vagina.

He knows that it would be bad and did not want to touch them inappropriately. [ 220 ] His mother told him to be careful while he was giving hugs to A and Z, but he does not know why she said that. [ 221 ] He said that A’s grandmother did not scream at all. [ 222 ] The girls were happy to see him and asked him how he was doing. He did not have a problem with the Z’s grandfather neither. They exchanged normal greetings.

Analysis of Z and A event [ 223 ] The Court does not believe the accused’s testimony. [ 224 ] First, he said that he did not remember the way he hugged A and Z. [ 225 ] He then mentioned that he did not want to hug them the way he hugged the older people because he had to be careful not to touch their body parts as their breast or vagina. He said he knows that it would be bad and did not want to touch them inappropriately. [ 226 ] He did, however, give a similar description of the hug he gave Y.

It seems that the accused, to convince the Court, said that he did not touch A and Z’s buttocks, but admitted that hugged the others, as Y, differently. [ 227 ] The accused also denied A’s grandmother’s and Z’s grandfather’s reactions. [ 228 ] The Court is convinced that the grandparents’ strong reactions were caused by the accused touching girls' buttocks. [ 229 ] The accused also pretends that the girls were happy to see him and that they came to him as he pretends for X and Y also. The four witnesses, A, Z and their respective grandparents, firmly contradicted that affirmation.

The accused came behind the girls, they did not even notice his presence before he hugged them. [ 230 ] The evidence is convincing that the accused did touch A and Z's buttocks while he gave them a hug. [ 231 ] However, this is a short and isolated event. [ 232 ] Considering that the prosecution did not present a motion regarding similar acts evidence, the Court cannot infer the intention of the accused regarding A and Z’s touching from his behaviour towards X and Y when he was hugging them the same way. [ 233 ] The evidence establishes that rumors were accumulating regarding the accused in July 2022 and that A and Z were aware of those rumors.

Even Z said that the accused was known for touching the buttocks of the little girls. [ 234 ] That could explain the strong reactions of the grandparents when they saw the accused touching Z and A’s buttocks. [ 235 ] That said, taken in isolation, does the Court conclude, beyond a reasonable doubt, that all the essential elements of the offences are met? [ 236 ] As mentioned above, the Court can not consider the behaviour of the accused towards X and Y to infer the intention of the accused when he hugged Z and A. [ 237 ] According to the evidence, the accused was greeted by most of the residents of the neighborhood, he seems to have limited cognitive skills, the hugs occurred in full view of everyone, lasted a few seconds, while everyone was smiling, in a good mood, the Court is not convinced that the spontaneous act of the accused presents the sexual gratification required to lead to a conviction on the sixth and eighth count. [29] [ 238 ] Considering the exceptional circumstances of this case, the Court is not convinced beyond a reasonable doubt that the facts can support a finding of guilt on the sexual assault neither.

[ 239 ] This having been said, the Court concludes that the constituent elements of the lesser and included offence of simple assault are present. [ 240 ] As the Supreme Court mentioned in Tatton [30] : « [35] For general intent crimes, the mental element simply relates to the performance of an illegal act. Such crimes do not require an intent to bring about certain consequences that are external to the actus reus: Bernard, at p. 863; George, at p. 877 (per Fauteux J.). Assault is a classic example. The accused must intentionally apply force; however, there is no requirement that he intend to cause injury .

Likewise, crimes of general intent do not require actual knowledge of certain circumstances or consequences , to the extent that such knowledge is the product of complex thought and reasoning processes. In each instance, the mental element is straightforward and requires little mental acuity .» [ 241 ] The offence of assault, defined in para. 265 (1) (

a) of the Criminal Code , is the direct or indirect use of force, to any degree, on another person without that person's consent, with the intent to use non-consensual force. The general intent to use force is sufficient. The offence does not include a moral element of hostility arising from an intention to act in order to intimidate or injure. [ 242 ] In the case at bar, the Court concludes that the accused hugged Z and A and touched their buttocks without their consent. [ 243 ] By doing so, the accused had the general intent to use a force against them.

FOR THESE REASONS, THE COURT: DECLARES the accused guilty on counts 1 and 4. ORDERS a stay of proceedings on counts 3 and 5. ACQUITS the accused on counts 2, 6 and 8. ACQUITS the accused on counts 7 and 9 but declares him guilty of the lesser and included offence of simple assault on each count. __________________________________ ANTOINE PICHÉ, J.C.Q.

M e Sandra Tremblay Counsel for the Prosecutor M e Aurore Brun Counsel for the Accused Dates of hearing : August 14 th to 18 th , 2023. [23] Although in some cases, the assessment of a person’s age may be variable and unreliable, in other cases, youth is so obvious that it is objectively impossible to deny it, like the present one. Héon c. R. , 2021 QCCA 1794 paras. 15 and 16 ; R. c. Galatas , 2020 MBCA 108 , paras. 4 to 7 ; R. c. Singh et al, 2020 MBCA 61 , para. 50 ; R. c. K.S. , 2019 ONCA 474 , paras. 5 and 6 .