R v. VICENTE, 2019 QCCQ 267

R. c. Gomez Watkins 2019 QCCQ 267 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL CRIMINAL DIVISION No: 500-01-166798-188 500-01-166797-180 DATE: January 23, 2019 ______________________________________________________________________ BY THE HONOURABLE ALEXANDRE ST-ONGE, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN PROSECUTOR v.

VICENTE GOMEZ WATKINS ACCUSED ______________________________________________________________________ JUDGMENT ______________________________________________________________________ INTRODUCTION [ 1 ] Vicente Gomez Watkins is accused of uttering a threat to cause death or bodily harm to Korinna Crystal Murray and her son, between December 13, 2017, and January 26, 2018. He also faces one count of breach of a probation order prohibiting him to communicate with Korinna Crystal Murray and Tammy Shaw. [ 2 ] During the trial, Korinna Crystal Murray testified that she had received threats by text messages.

The text messages originated from a mobile phone number associated with the accused’s mother. [ 3 ] The accused testified and denied being the author of the threats. ISSUES TO BE DECIDED [ 4 ] The Court has to decide if the Prosecution proved beyond a reasonable doubt that the accused is the author of the text messages received by Korinna Crystal Murray on December 27 th 2017? CONTEXT [ 5 ] The complainant met the accused through mutual friends on July 1 st , 2016. They became a couple in August of 2016 and had an on and off romantic relationship for 2 years.

On September 29, 2017, the complainant gave birth to a daughter, X, whose father is the accused. [ 6 ] When X was born, no custody arrangements were made between the complainant and the accused but he was allowed to see his daughter for the first two months. [ 7 ] After their relationship ended, the accused and the complainant stayed in contact. They communicated by phone or by text messages. Mrs. Murray mentions that the phone number [...] is the accused’s mother cell phone number. The accused was always using that cell phone number when communicating with her.

In fact, according to her, it’s the only known phone number used by the accused to communicate with her. [ 8 ] On December 13, 2017 the accused talked with the complainant on the phone and asked her when will he be able to see his daughter. She hangs up. On December 25, 2017, she went to his house to pick up diapers. According to the accused, she went to his

house on December 26 or 27, 2017. [ 9 ] On December 27, 2017, at 2:46 p.m., Mrs. Murray received a text message from the phone number [...]. The text message mentions: “ Since you love your daughter so much watch gonna happen to her ”. After reading the text message, she copied it immediately by making a screen shot of the message. She felt afraid by this text message, who was introduced into evidence as exhibit P-2. [ 10 ] The same day, at 3:09 p.m., she received another text message from the phone number [...]. This text message reads as follow: “ Im gonna kill the both of you you and X ”.

It was introduced into evidence as exhibit P-3. The complainant also introduced into evidence, as exhibit P-4, a screen shot copy of phone calls she received on December 27, 2017. [ 11 ] On December 27, 2017, the complainant went to the police station and met with police officer Frédéric Côté. During their meeting, she received numerous phone calls. [ 12 ] During his testimony, the accused denied being the author of the threatening text messages. When the accused was serving time, it was the complainant who initiated communications with him.

Also, she would send him mixed messages concerning access rights to their daughter: one day, she would accept, the other, she would not. [ 13 ] According to the accused, the complainant told him that she will have him arrested. The accused thinks it is because he was talking to other girls on Facebook. [ 14 ] The accused admitted that he and his mother were the only one using his mother’s cell phone number [...] and that he was using this phone contemporaneously to December 27, 2017. Also, he confirmed he called the complainant’s mother, Tammy Shaw, from this phone number.

ANALYSIS Reasonable doubt and credibility [ 15 ] In a criminal prosecution, the onus rests on the Crown to prove the guilt of the accused beyond a reasonable doubt. In meeting this onus, the Crown must prove the actus reus and the mens rea of the offences beyond a reasonable doubt. The standard of proof “beyond a reasonable doubt” provides a safeguard to ensure that no innocent person is convicted. [ 16 ] It is well established that when an accused testifies in his own defence, the oft-cited instruction in R. v. W.(D.) [1] , applies.

This framework was designed to explain what reasonable doubt means in the face of an accused who testifies and refutes or contradicts the evidence of the prosecution. This typically places the evidence of the prosecution’s witnesses in opposition to the evidence of the accused and requires an examination of the credibility of the witnesses. [ 17 ] References in the W. (D.) [2] framework have been found to refer to both the credibility and reliability of the evidence. The W. (D.) [3] framework is as follows: “First, if you believe the evidence of the accused, obviously, you must acquit.

Secondly, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit. Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence you do accept, you are convinced beyond a reasonable doubt by the evidence of the guilt of the accused.” [ 18 ] Parts of a witness’s evidence may be accepted and other parts rejected. Some parts may be more important than others.

While a guilty verdict may be founded on the evidence of a single witness, a determination of guilt must not become a credibility contest between the witnesses.

Such an approach undermines the presumption of innocence and the requirement of proof beyond a reasonable doubt. [4] All of the evidence should be considered together. [5] The standard of proof beyond a reasonable doubt does not apply to the individual items of evidence, or the separate pieces of evidence which make up the Crown’s case, but to the total body of evidence upon which the Crown relies to prove guilt. [ 19 ] Of particular importance on the issue of credibility is the inherent probability or reasonableness of a particular version of the facts, against the backdrop of uncontroverted facts.

No witness is entitled to an assessment of their credibility in isolation from the rest of the evidence. Rather, their evidence must be considered in the context of the evidence as a whole. [ 20 ] The accused is innocent until proven guilty. The presumption of innocence is only defeated if the prosecution has met its burden of proof. The accused need not prove his innocence. He need not prove any motive to lie on the part of the prosecution’s witnesses. It is for the prosecution to prove each of the essential elements of the offences the accused is charged with beyond a reasonable doubt.

Otherwise, the accused is entitled to an acquittal. [ 21 ] The Court has taken into account the whole of the evidence when making the following credibility assessments. Credibility of Vicente Gomez Watkins [ 22 ] The Court does not believe the testimony of Vicente Gomez Watkins when he denies being the author of the threatening messages for the following reasons: • His denial is contradicted by the evidence as a whole, and is implausible. The Court finds it implausible, for someone other than

the accused, to have written those text messages; o The phone number [...] is only used by the accused and his mother. Nothing in the evidence presented at trial suggests the accused’s mother was angry at the complainant. Hence, it does not make any sense for the accused’s mother to have written those messages.

On the other hand, Tammy Shaw mentions in her statement that the accused was trying repeatedly to communicate with the complainant from the phone number [...]; o Also, the accused admitted he was using his mother‘s cell phone number ([...]) contemporaneously to the day the threatening messages were received by the complainant (December 27); • He knowingly breached his probation conditions by communicating with the complainant; • His credibility as a witness is affected by the fact he has a criminal record and that he was hesitant at first to admit it. [ 23 ] Therefore, for the above-mentioned reasons, the accused’s testimony is rejected and it does not raise a reasonable doubt concerning his denial of being the author of the threatening text messages.

Credibility of the testimony of Korinna Crystal Murray [ 24 ] The Court is of the opinion that Korinna Crystal Murray’s testimony is reliable, truthful and credible. The Court is of the opinion she was not contradicted by her prior statement to the police concerning the fact she answered the phone on December 27, 2017. Also, she was not shaken by the defence cross-examination. Her testimony is believed and accepted. Her explanation concerning why she erased the whole conversation and only made a copy of the threatening messages is accepted by the Court.

Therefore, the reliability of exhibit P-2 and P-3 is not affected. Circumstantial Evidence and identity [ 25 ] Justice David Watt explains the concept of circumstantial evidence as follows [6] : “Circumstantial evidence is any item of evidence, testimonial or real, other than the testimony of an eyewitness to the material fact. It is any fact from the existence of which the trier of fact may infer the existence of a fact in issue. It is for the trial judge to determine whether circumstantial evidence is relevant. Where evidence is circumstantial, it is critical to distinguish between inference and speculation.

An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. There can be no inference without objective facts from which to infer the facts that a party seeks to establish. If there are no positive proven facts from which an inference may be drawn, there can be no inference, only impermissible speculation and conjecture.” [ 26 ] Once the circumstantial evidence is admitted, it is up to the trier of fact to determine the weight attributable to it as well as the inferences that can be drawn from it.

The drawing of an inference is itself an exercise in fact finding. [7] [ 27 ] When dealing with circumstantial evidence, inferences that are consistent with the innocence of the accused do not have to arise from proven facts.

If reasonable inferences other than guilt can be drawn from the circumstantial evidence, this means that the Crown has not satisfied its burden of proof beyond a reasonable doubt. [8] [ 28 ] The meaning of “reasonable inferences other than guilt” refers to “other plausible theories” and “other reasonable possibilities” that are consistent with the innocence of the accused, and based on logic and experience applied to the evidence or the absence of evidence, not on speculation. [9] [ 29 ] Drawing the line between “plausible theory” and “speculation” is difficult.

In doing so, the Court must evaluate whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty. [10] [ 30 ] In Dubourg v.

R. [11] , the Quebec Court of Appeal distinguishes the terms «only reasonable inference” from “only rational inference.” The only reasonable inference does not imply this inference is the only one possible in the sense that proof beyond a reasonable doubt is different from proof beyond a possible doubt. [ 31 ] The Court is convinced beyond a reasonable doubt that the accused is the author of the threatening text messages. By his own admission, only two people use the phone number [...]. The accused and his mother.

The defence’s argument that it might be someone other than the accused who wrote the text messages tendered as exhibit P-2 and P-3 is contrary to the evidence as a whole and does not raise a reasonable doubt. It is the accused who is trying to communicate with the complainant, not his mother. Also, the accused is the one who called the complainant repeatedly in December of 2017.

The accused admitted using the phone number [...] contemporaneously to the day when the threats were received by the complainant. [ 32 ] Furthermore, the evidence is to the effect the accused is having some issues with the complainant regarding access rights to his daughter. The fact that someone other than the accused would have written the text messages is speculation and not a reasonable inference. [ 33 ] The totality of the evidence is only compatible with the accused’s being the author of exhibit P-2 and P-3. The evidence as a whole is inconsistent with any other reasonable explanation.

The Court is convinced beyond a reasonable doubt the accused is the author of the threatening messages. [ 34 ] Also, the Court is convinced beyond a reasonable doubt that the text messages tendered into evidence as exhibit P-2 and P-3,

when analyzed together, constitute, objectively, a threat to cause death to the complainant and her daughter because the first one refers to a warning and the second one refers to death.

All text messages were received in less than 30 minutes. [ 35 ] Finally, the Court is convinced beyond a reasonable doubt the threatening messages uttered by the accused were meant to intimidate or be taken seriously by the complainant. [ 36 ] Concerning the charge of breach of probation, since it is admitted by all the parties that the accused was on probation at the material time, and since he is the author of the threats, the Court is satisfied beyond a reasonable doubt that M. Gomez Watkins intentionally failed to comply with the terms of the probation order he signed.

FOR THESE REASONS , THE COURT : Finds the accused GUILTY of uttering death threats to Korinna Crystal Murray (500-01-166798-188). Finds the accused GUILTY of breach of a probation order (500-01-154422-171). __________________________________ ALEXANDRE ST-ONGE, J.C.Q. Me Marie-Laurence Maisonneuve DPCP For the Prosecution Me Olivier Cusson For the accused Vicente Gomez Watkins Hearing dates: October 22 and December 5, 2018