2020 QCCQ 935, 2020 QCCQ 935

R. c. Kanatewat 2020 QCCQ 935 COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF ABITIBI LOCALITY OF CHISASIBI N° : 614-01-002942-197 DATE : February 27 th , 2020 PRESIDED BY THE HONOURABLE LOUIS A. LEGAULT, J.C.Q. HER MAJESTY THE QUEEN Prosecution vs. KEVIN KANATEWAT Defense REVISED JUDGMENT Written version [ 1 ] The accused Kevin Kanatewat is charged on count one of having on June 27, 2019 in Chisasibi, sexually assaulted T. W., committing the indictable offence provided in

section 271

a) of the Criminal Code . [ 2 ] The accused pleads not guilty to the infraction. THEORY OF PROSECUTION [ 3 ] Prosecution’s theory is as follows. The accused was renting a house in Chisasibi. Around 6 o’clock in the morning, the accused in a state of intoxication came along. His presence was not desired. It was even feared. He came in uninvited. The lessors had told him not to let in the accused. The accused lady companion told him to fear the accused. His past experiences with the accused spoke likewise. [ 4 ] JL 2407 The victim was awakened by the accused outside the house.

Fearing the accused, he went to the back of the house and he was checking if there was someone that had entered the house. No voice was then heard. Near the bedroom, he saw the accused coming along to him. The accused forcefully touched him sexually and led him to the living room notwithstanding his voiced refusal. The victim was thrown on a mattress in the living room and sexually assaulted.

He was then under the physical control of the accused. [ 5 ] The accused imposed on the victim an unwanted blow job and then forced the victim’s head in the direction of his penis to obtain forcefully an oral intercourse which disgusted complainant. The accused then took down the victim’s pants and started to have anal sex. The victim complained of it being hurtful. The anal intercourse then ceased. [ 6 ] The victim repeatedly invited the accused to leave the premises as he invoked the fact he had to go to his work. The victim dressed, the accused was jerking off.

Then as the victim was sitting, the accused masturbated and jerked off without there being any ejaculation. Again and again invited to vacate the premises, the accused left. Some short time after departure, the victim photographed a pair of boxers and socks that he said belonged to the accused.

He then called the police to lay a complaint. [ 7 ] The victim did not consent to any sexual encounter with the accused, feared the accused, had recognized his voice when outside, was wondering if the accused was in after some time as he walked away to the corridor and he protested to no avail as assaulted. [ 8 ] Prosecution alleges that the defence version is totally unlikely, that the accused is untrustworthy and that the whole evidence establishes the accused guilt beyond a reasonable doubt.

THEORY OF DEFENCE [ 9 ] The accused did let his lady walk away to their home, He last saw her entering the street leading to their house and as well to the house occupied by complainant. Meanwhile, before walking to join his lady companion, he had a smoke with some guys. As he walked, he thought or was convinced or became convinced that she had gone to her relative’s place where he knew that complainant was living. [ 10 ] Defence says that the accused knocked on the door and on the window of the residence where complainant was living. The door

was found to be locked and as he was knocking on a nearby window, suddenly the door was unlocked. He entered calling the name of R.his lady companion. Rather, he found complainant in the hallway coming to him and trying to force his way to grab his testicles anddoing so. [11] The accused pushed him hard namely touching complainant in the area of his neck. Complainant attempted to retain the accusedby his arm or sleeve.

The accused managed to walk away. [12] Defence alleges that the victim had in the past on three occasions attempted to touch the accused for sexual purposes. [13] Defence alleges that the accused version is weak in virtue of a detailed and unlikely account of time it took from the beginningto the end of the ordeal he was submitted to.

The account given by complainant does not stand as it would rather have been a matter ofapproximately 20 minutes and not of more than one hour or close to one hour and one half as after the accused departure, complainanttestifies to having rapidly found the boxers and socks left by the accused and then photographed by complainant. It is then that the policeofficers were called for a complaint. The accused denies that these boxers and socks were his. PRINCIPLES OF ASSESSMENT OF THE EVIDENCE [14] The rules as developed by the Supreme Court of Canada regarding the analysis of the evidence do apply.

Namely, the accusedbenefits until a verdict is arrived at of the presumption of innocence. The accused does not have to prove anything. All of the elements ofthe infraction must be established beyond a reasonable doubt.

For that purpose, the Court has to assess the credibility and trustworthinessof witnesses heard. [15] If the accused testimony raises a reasonable doubt and offers a mean of defence, he shall be acquitted forthwith. [16] If disbelieved, if the accused testimony raises a reasonable doubt in the context of the whole evidence, he shall then beacquitted. [17] In any case, the Crown has an obligation to prove guilt beyond a reasonable doubt. The conclusions of the judge should demonstrate a fine appreciation and assessment of the whole evidence. (W.(D.))[1].

That reasonable doubt can be on an essential elementof an infraction or on a means of defence. [18] As the Supreme Court so affirmed and namely in Queen v. MacKenzie, (SCC), [1993] 1 R.C.S. 212, theevidence shall be assessed in its entirety and not element by element. The accused does not need to contradict the evidence ofprosecution to benefit from the reasonable doubt. [19] Justice Proulx of the Appeal court of Quebec in Tabard[2], reminded that a judge to decide on contradictory versions should notmake a choice of which is the more likely to be true.

The judge has to decide if the evidence as a whole does satisfy him beyond areasonable doubt of the guilt of the accused. An accused does not have any burden to show that complainant does not say the truth.Prosecution has to show beyond any reasonable doubt that truth as proposed.

To impose upon an accused the burden of showing that acomplainant is lying would atrophy the presumption of innocence. [20] The Honourable Patrick Healy of the Quebec Court, did on the assessment of credibility of witnesses say the following: “Thecredibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanor of the particular witness carried conviction of truth. The test must reasonably subject his story to an examination of itsconsistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-witted, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience incombining skillful exaggeration with partial suppression of the truth.

Again a witness may testify what he sincerely believes to be true,but he may be quite honestly mistaken. For a trial Judge to say “I believe him because I judge him to be telling the truth” is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind”[3]. [21] These principles have been repeated in several decisions of the Supreme Court of Canada[4]. Questions such as the presumption of innocence and the assessment of the evidence are not merely questions of form but of substance[5].

There is no automatic formula to be followed in the assessment of the evidence. The verdict arrived at should demonstrate a careful examination of the evidence[6]. [22] A reasonable doubt cannot be frivolous or imaginary. It must be based on good common sense and on reason. Any reasonabledoubt should be inferred from the evidence or its absence. [23] The Ontario Court of Appeal in R. v.

Thu Van Bui[7] reminded that the level of reasonable doubt was to be understood as «a conclusion sustainable at a threshold significantly lower than a "reasonable inference" from "proven facts"[8]. [24] The Supreme Court of Canada, in R. v. Robert[9], commenting on the R. v. Cooper Ruling, they stated that the rule in Hodge'scase was not an inexorable rule of law in Canada. [25] The Appeal Court also in R. c. Johnson, reminded that, in assessing circumstantial evidence, guilt shall be the only inference or logical inference of reasonable inference to draw from the whole of the evidence[10].

ANALYSIS OF THE EVIDENCE

[ 26 ] The accused testimony is not credible and indeed does not raise any reasonable doubt in the context of the whole evidence. [ 27 ] The accused version was examined in an attentive and careful way. It shows that the accused version was adapted and readapted. It was rendered in a weak, inconsistent, totally unlikely and untrustworthy way. And it is indeed not credible and it is untrustworthy. [ 28 ] The accused pretences are totally unlikely after a closed examination.

The accused truly modified his version, changed it, testified to a truth that is totally unlikely on why he came to the complainant’s residence and as to what happened. [ 29 ] This was so regarding the fact he was convinced or believed that his lady companion at that early time in the morning entered the premises.

It is unbelievable. [ 30 ] On the doorknob being unlocked, the accused both says that he heard it or simply that he is convinced it was opened by someone from the inside. [ 31 ] It is unbelievable that the accused saying he was assaulted three times by the victim, would have gone around 6 o’clock in the morning at the residence he knew occupied solely by the victim. He knew furthermore that his lady companion was not there.

His pretence that he was so convinced which led him to the victim’s residence, is totally unbelievable and it is a pure invention of the accused, a cover-up of what really happened. [ 32 ] It is also unbelievable that as early as it was in the morning and having been allegedly sexually assaulted three times by the victim, he went there without any plan, even a last minute plan. He simply chose as intoxicated as he was not to walk with his lady back home and to take the direction of complainant’s residence. The accused was not then following the pathway of his lady companion and cannot be that much believed.

The house was rented by his lady companion relatives to the accused and was known to be solely occupied by complainant. It is unbelievable that he went there upon any such belief that his lady was there at that early time in the morning.

The accused had made the choice not to walk with his lady companion at that very early time in the morning. [ 33 ] Overall the accused testimony was weak and vague, was repeatedly adapted and not direct and clear, so variable that it opens no doubt in the context of the whole evidence. [ 34 ] The accused trustworthiness is also questioned by his reluctance to answer truthfully questions regarding his priors. The accused account of how he was assaulted sexually by complainant is totally unbelievable.

He testified in an incoherent, stumbling, contradictory and totally unlikely way. [ 35 ] He was also unbelievable on complainant’s immediate move of attack on him although he does in a comparable way situate the presence of the victim closer to the bedroom in the corridor.

This is so also on the accused pretences on how the victim roughly grabbed his testicles and his grabbing complainant’s throat and pushing him roughly away and on the victim’s attempt to retain the accused arm or sleeve. [ 36 ] The accused manifestly was an intruder and had no business and no justification whatsoever being there and his pretences that complainant had harassed sexually him on three occasions are totally unlikely and unbelievable. [ 37 ] The accused acknowledges that when under the influence of alcohol, he had the tendency to become violent.

And indeed the accused drank a lot as he speaks to a 20 ounces of vodka being drank by him, his lady companion and a third person. The state of intoxication might have contributed to a failing memory or to the accused inventing his version and experiencing lots of difficulties in having any coherence.

In any case, the accused did not tell the truth and invented a version to exculpate him. [ 38 ] The accused is unbelievable regarding his account that the victim went after him, «spin» around him, pulled him, touched the belt area with a flat hand, grabbed his testicles, tried to retain him and for that purpose grabbed his arm or sleeve to retain him. [ 39 ] The accused version is contradictory, incoherent, inconsistent and unbelievable.

The accused version does not in the context of the whole evidence raise any reasonable doubt. [ 40 ] The whole evidence yields no reasonable doubt as to the guilt of the accused. [ 41 ] Even the very able pleadings of defence on a doubt that should be left through the mathematics of computation of how long each step of the incident took and how long the whole ordeal lasted, does not raise any doubt on it happening. [ 42 ] It speaks to an assessment by the victim of each part of the incident as being in an understandable way approximate and frail as the victim was left with a perception of the whole incident, with a starting time, a duration of each component of that incident as being very likely different from reality.

It is established beyond a reasonable doubt that it happened. Indeed it can be inferred that the time of arrival of the accused varied rather around the 6 o’clock time or the 6:30 time in the early morning rather than the 6 o’clock the victim spoke to in his final assessment. That speaks to the difficulty of complainant giving a precise account of the time it took by reason of the traumatic event suffered. The testimony of the accused does not speak precisely to the exact time he arrived at the residence.

It is known that the whole ordeal came to an end some minutes before the photograph was taken and on that, we have a precise clock time. [ 43 ] There is no doubt that the accused was there as he so admitted. There is no doubt that the whole incident happened over a period of time between the arrival of the accused and the photographs taken of the accused underwear and socks.

The account of time by the victim does not in any fashion whatsoever compromise or question the truthfulness of a rather long episode of sexual assaults on that early morning. [ 44 ] The victim’s account of what happened leaves no doubt on its trustworthiness and on the fact that the accused was there as an intruder at that early time of the day, that the victim acted in a coherent way, that through many causes and from information and direction received, he had and displayed concerns of security and integrity regarding the accused, he feared the accused and that he was

assaulted by an accused truly intoxicated and whose sexuality was exacerbated and displayed as alleged. [ 45 ] No doubt is left on the accused coming uninvited in the residence, on the accused being forced from the corridor near the bedroom to the bed in the living room, on the accused touching sexually the victim directly on the skin, on the accused repeated refusal to be sexually involved, on his refusal of any sexual relationship, on the accused imposing on the victim that he receives a blow job and then imposing physically a new position to force the victim to give him a fellatio.

The accused was then forcefully holding the victim’s head. The victim said he was grossed out by the accused’s forced manoeuver. [ 46 ] Then the accused once again imposed physically and forcefully a new position and he undressed the victim. He imposed on the victim an anal sexual intercourse that was denounced as being hurtful. This anal intercourse came to an end after the complaint it was hurtful.

The victim then masturbated and «jerked off» on the mattress and then moved to continuing «jerking off» in front of the victim sitting down dressed without ejaculating. [ 47 ] Although repeatedly invited to leave by the victim, the accused defaulted to leave in any rapid fashion after the victim was dressed. Such demand for the accused to leave the house was not complied with although asked five or six times. Finally, the accused left.

The victim repeatedly invoked the fact he was going to work at the pharmacy on that morning but that had no speeding effect on the accused departure. [ 48 ] The accused’s boxers and socks as remitted to police by complainant were exhibited generally and by consent remitted to the police investigator. The accused denied these being his. No other evidence regarding these pieces of clothing relate to these. The testimony of the victim is credible and trustworthy and the denial of the accused does not question the strength of the evidence testified to by the victim.

Complainant’s version is trustworthy and solid and holds notwithstanding an appraisal of the time that does certainly not lead to doubt the accused version. [ 49 ] Nowhere is there on the whole of the evidence any doubt as to the victim suffering a sexual assault on that morning and as to the accused being the offender. [ 50 ] Prosecution establishes guilt of the accused beyond a reasonable doubt. FOR THESE REASONS, THE COURT DECLARE THE ACCUSED GUILTY ON THE COUNT OF SEXUAL ASSAULT AS PROSECUTED. __________________________________ LOUIS A. LEGAULT, J.C.Q.

Me Christian Leblanc Attorney for Prosecution Me Ratah Heang Defence attorney Dates of hearing: January 17 th and 24 th , 2020 and February 27 th , 2020.