2023 QCCQ 10567, 2023 QCCQ 10567

R. c. Larose 2023 QCCQ 10567 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU CITY OF GATINEAU Criminal and Penal Division No: 550-01-120386-216 DATE: December 12, 2023 ______________________________________________________________________ PRESIDED BY THE HONOURABLE RICHARD MEREDITH, J.C.Q. ______________________________________________________________________ HIS MAJESTY THE KING Prosecution v. LAROSE, ANTHONY JAMES Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ 1.

INTRODUCTION [ 1 ] The accused is tried on a charge of break and enter and theft, allegedly committed on November 28, 2019. 2. THE EVIDENCE [ 2 ] In October 2019 the accused, along with his girlfriend, were tenants of an apartment in the lower level of the complainant’s home. Based on the arrangements between the tenants and Mrs. Nicole Allen, the complainant, they were required to pay rent and were also responsible mowing the lawn and taking care of the snow removal.

There were no other chores that the accused was required to address as it relates to her residence. [ 3 ] Between November 9 and November 16, 2019, Mrs. Allen was absent from her home as she was away on vacation. [ 4 ] Upon her return home from vacation on November 16 th , she noticed immediately that several thousands of dollars of jewellery were missing from her jewellery box in her bedroom. She noticed fingerprints apparent on the dusty cover of her jewellery box.

Se also noticed a smudge print on the closet mirror door of her bedroom. [ 5 ] During that period, she believes the accused entered her home through a door inside the building that connects her part of the house to the area where the accused resided. She claims that her side of the house is inaccessible using that door because it is always locked from her side. [ 6 ] She explained that before leaving for her vacation she made sure that all the doors and windows were locked. She had an alarm system that was activated only if someone tried to enter from the outside.

The in-door motion detector was not activated because there remained a parrot in her residence while she was away. [ 7 ] She added that as an extra security measure she placed a roll of paper wrapped in plastic on the floor against the door separating her side of the residence from the

section of the building where the accused has his apartment. Her purpose was that if someone did enter her side of the residence using that door it would push the roll of paper and it would be unlikely that the roll could be replaced against the door once the door was closed again by anyone returning to the other side. [ 8 ] Upon her return she also noticed that the roll of paper had moved somewhat, maybe by a couple of inches. It also seemed as though

part of the plastic was tucked in under the door, suggesting that someone had opened the door, tried to pull back the roll in place when the door was closed again. [ 9 ] The next day she made some inquiries with the accused girlfriend about whether she or her boyfriend had entered on her side of the home and was informed they had not. [ 10 ] She called the police about a week later. [ 11 ] Fingerprints were taken in the weeks that followed. Police lifted a fingerprint, confirmed to be that of the accused, on the closet mirror door in Mrs. Allen’s bedroom.

No fingerprints were lifted on the cover of the jewellery box, which was just a few feet away from the fingerprint lifted on the mirror. The evidence is not clear whether police even attempted to lift fingerprints on the jewellery box. [ 12 ] Mrs. Allen’s evidence suggests that the prints visible on the dust on the cover of the jewellery box would be those of the person who stole several items in the said box.

She claimed those prints were not there when she left on her trip. [ 13 ] In cross-examination it was revealed that at some point during the fall of 2019 there was a plumbing problem that caused a leak into the accused’s apartment. The leak came from her bedroom where she has a toilet and a large bath or hot tub. [ 14 ] She initially stated she did not remember who had repaired this plumbing problem and she could not remember if the accused had entered her bedroom to fix this problem. [ 15 ] Later in her testimony she in fact acknowledged that the accused did enter her bedroom to assist in the plumbing repairs.

She thought the plumbing problem stemmed from her toilet, but she was not sure. [ 16 ] Her son Mr. Marc André Guérin is the only person who was authorized to enter her home during her absence, for the particular purpose of checking on the parrot and to water the plants. [ 17 ] He testified that during his mother’s absence he did go to her home once. There was no sign of a break-in. He went there with his girlfriend. He visited every room in the house to show his girlfriend around. He claims he did not touch the jewellery box.

Somehow, he remembered there was dust on the jewellery box and stated categorically that the mirror closet door was always clean and that he did not notice fingerprints on the mirror. [ 18 ] The accused testified in his defence. He denies categorically have stolen the complainant’s jewellery or having entered her home while she was away on vacation.

His version contradicts the complainant’s version on many fronts. [ 19 ] He claims that in addition to the agreement to mow the lawn and take care of snow removal, he had helped her on various occasions when she asked him for his assistance. [ 20 ] He gave various examples, namely, carrying items from her house to her car, moving a kitchen set from the home as well as suitcases from her bedroom to a vehicle. [ 21 ] He also explained that he fixed a water leak coming from her hot tub, which is right beside the jewellery box and the closet mirror door.

He even added that he had to check inside the closet to see if there was a secondary pump and claimed that Mrs. Allen was with him at the time. [ 22 ] However, he believes he never opened the closet mirror door on the right side, which is where his print was found. He recalls moving items at some point that were in front of the mirror door. [ 23 ] Overall, he claims he went inside her residence multiple times at her request during the time he lived in the adjacent apartment. [ 24 ] He was adamant that he never entered her home using the door between the

section where he resides and he home. He was adamant that to his knowledge that door was always locked. He says also he did not even know that the roll of paper Mrs. Allen referred was placed against the door. [ 25 ] The evidence reveals no information on whether any police investigation steps were taken regarding the son’s girlfriend nor regarding the accused’s girlfriend. 3. ANALYSIS Burden of Proof [ 26 ] The burden of proof in this matter as in all criminal trial rests on the Crown. [ 27 ] In its analysis the court must also apply the standard of proof beyond a reasonable doubt. In R. v.

Lifchus , the Supreme Court of Canada defined the burden that must be met. [ 28 ] The standard of proof beyond a reasonable doubt is closely intertwined with the presumption of innocence, the basic premise, which is fundamental to all criminal trials, and that the burden of proof rests on the prosecution throughout the trial and never shifts to the accused. A reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice. A reasonable doubt is a doubt based on reason and common sense which must logically be derived from the evidence or absence of evidence.

While more is required than proof that the accused is probably guilty, a reasonable doubt does not involve proof to an absolute certainty. Such a standard of proof is impossibly high. [1]

[ 29 ] In this matter much of the evidence is contradictory. It certainly is between the version of the accused and the complainant. [ 30 ] Accordingly, the court addressed the issues of credibility based on the guidance provided by the Supreme Court of Canada in R v W(D). The court’s approach was as follows: Where credibility is important, the trial judge must ensure the rule of reasonable doubt applies to that issue.

The suggested approach to addressing credibility as followed by this Court (1) if the Court believes the evidence of the accused, it must acquit; (2) if the court does not believe the testimony of the accused but is left in reasonable doubt by it, it must acquit; (3) even if not left in doubt by the evidence of the accused, the court still must ask whether it is convinced beyond a reasonable doubt of the guilt of the accused on the basis of the balance of the evidence which it does accept. [2] [ 31 ] When analyzing the credibility of witnesses, the court is not required to choose the version which is most credible.

It is not a contest of credibility between crown and defence witnesses. [ 32 ] In exercising its discretion, it is open to the court to believe and accept certain parts of a witness’ testimony and not accept other parts of a testimony. [ 33 ] In addition to assessing the credibility of witnesses, the court must also determine the reliability of the evidence.

The concepts of credibility and reliability differ. [ 34 ] Reliability relates to the value or weight of a witness’ testimony whereas credibility refers to the person and their characteristic, for example, one’s honesty, that can manifest itself though a witness’ behaviour. Reliability, on the other hand, refers to the value or accuracy of one’s narrative. [ 35 ] It is well accepted that a credible person can honestly believe that an event occurred as they state it and believe it to be true, while that in reality they may simply be mistaken.

A witness, who may seem credible, may provide a narrative that they believe to be true but the reality is that their version may be unreliable. Hence a credible person can make a non reliable statement. [ 36 ] The assessment of the credibility and reliability of the witnesses is at issue in the present case. [ 37 ] Finally, it must be remembered that in assessing credibility, there is no presumption of credibility or honesty afforded to any witness.

It is for the court to determine the degree of credibility and/or reliability of the witnesses heard at trial which is not an exercise involving the application of an exact science. [ 38 ] In the end, after considering the totality of the evidence, the court must be convinced beyond a reasonable of the accused guilt. Otherwise, he is entitled to an acquittal . [ 39 ] In this case the court must also consider the circumstantial evidence introduced by the Crown. With respect to this evidence the Crown chose to proceed by admission and entered a Report of a forensic technician.

It highlights the fingerprint lifted from the closet mirror door in the complainant’s bedroom, nothing more. [ 40 ] What is clear and convincing from that evidence is that it establishes that at some point prior to that fingerprint being lifted by the police technician, the accused entered Mrs. Allen’s bedroom and his finger touched the closet mirror door. [ 41 ] The accused describes actions on his

part in the bedroom that were done for legitimate purposes, with the permission of the complainant. His evidence is not contradicted in that respect. On the contrary, even though initially the complainant claimed she did not remember if the accused had previously entered her bedroom to address a plumbing issue, she ended up stating she recalled that he had done so. [ 42 ] From the photos what is evident is that to address a plumbing issue stemming from the hot tub he would have had to position himself between the mirror door which is in close proximity to the hot tub.

He also claims he checked inside the closet to see if there was a secondary pump. [ 43 ] His evidence in this regard is uncontradicted or, at a minimum, Mrs. Allen’s recollection is so limited on this issue that it is difficult to place much weight on this part of her evidence . [ 44 ] The evidence regarding the said fingerprint that Mrs. Allen says she noticed immediately the same night she returned from her trip is difficult to assess. The photos filed in evidence, clearly show fingerprints on the mirror door.

There appears to be a white smudge consistent with the process of lifting a fingerprint by law enforcement. However, it is not clear if any of those photographs display the said smudge before police proceeded to apply their technique to lift the print. [ 45 ] Hence it is difficult to assess how obvious or not the presence of a fingerprint smudge actually was at the time Mrs. Allen says she noticed it immediately upon returning from vacation. [ 46 ] The Crown also introduced various text messages between the accused girlfriend and Mrs. Allen.

These messages are hearsay and therefore inadmissible towards establishing the truth of their content. They only prove that Mrs. Allen exchanged text messages with the girlfriend the following day. [ 47 ] Overall Mrs. Allen appeared sincere during her testimony. The Court does not question that she was a victim of theft of her jewellery. However, there are gaps in her recollection regarding opportunities the accused may have had for entering her bedroom for legitimate purposes.

This impacts the weight the court can give to those parts of her evidence in the face of the totality of the evidence. [ 48 ] The Court also finds that explanations regarding the locking mechanism of the door between the area where the accused apartment and the complainant’s residence were unclear hence unconvincing. [ 49 ] The accused categorically denies entering her room during the period she was away on vacation and denies stealing any jewellery.

He provides some explanations that could explain how and when one of his fingerprints ended up on the closet mirror door. [50] In various respects the Court is unsure about his overall credibility. At various times during his testimony, he tended to exaggerate.One example is when he suggested there was 6 inches of dust or tons of dust in her house. Obviously, that is a clear exaggeration. TheCourt does not however take those statements to suggest that he meant that there really was 6 inches of dust. [51] The accused was quite animated, even agitated at times during his testimony.

It appeared at times this was his manner of answeringin such circumstances. [52] Another example where he did not seem credible was when he was questioned about his previous convictions. He clearly lackedtransparency during that sequence of the Crown’s cross-examination. He was agitated, annoyed and defensive with Crown counselwhen she was questioning him about his past as it relates to his record and past habits of drug consumption.

He did not come across ascredible on those issues. [53] There is no question he lacked transparency in this regard, which in part raises some concerns about his overall credibility. [54] However, he forcefully contradicted Mrs.

Allen’s evidence on the issue of whether he had been permitted to be in her residence torepair a plumbing issue and he even claimed he had been in her residence on multiple occasions with her permission to assist her. [55] Her testimony on the scope of such opportunities was relatively limited and her recollection, understandably perhaps because of thepassage of time, was also limited. [56] The Court must consider the totality of the evidence, which includes in this case the evidence of the accused’s fingerprint.

This is anelement of circumstantial evidence that the Court must consider and keep in mind teachings of the Supreme Court of Canada in R. v.Villaroman [3] where at par. 30 the Court said this about circumstantial evidence: It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence,it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt.

No particular language is required.Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidencepermits will often be a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by too quicklyoverlooking reasonable alternative inferences. It may be helpful to illustrate the concern about jumping to conclusions with an example.If we look out the window and see that the road is wet, we may jump to the conclusion that it has been raining.

But we may then noticethat the sidewalks are dry or that there is a loud noise coming from the distance that could be street-cleaning equipment, and re-evaluateour premature conclusion. The observation that the road is wet, on its own, does not exclude other reasonable explanations than that ithas been raining.

The inferences that may be drawn from this observation must be considered in light of all of the evidence and theabsence of evidence, assessed logically, and in light of human experience and common sense. [57] The Court then explains at par. 36 through 38: 36 I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the merefact that it arises from a lack of evidence.

As stated by this Court in Lifchus, a reasonable doubt “is a doubt based on reason and commonsense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added). A certain gap in the evidencemay result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence,assessed logically, and in light of human experience and common sense. 37 When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonablepossibilities” which are inconsistent with guilt: R. v.

Comba, (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, perMiddleton J.A., aff’d (SCC), [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v.Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negativethese reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful,which might be consistent with the innocence of the accused”: R. v.

Bagshaw, (SCC), [1972] S.C.R. 2, at p. 8. “Otherplausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence ofevidence, not on speculation. 38 Of course, the line between a “plausible theory” and “speculation” is not always easy to draw.

But the basic question is whether thecircumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other thanthat the accused is guilty.[4] [58] In the present case, while Crown may have needed to negative these reasonable possibilities that might explain why the accusedprint was in this complainant’s bedroom, the Crown certainly did not need to “negative every possible conjecture, no matter howirrational or fanciful, which might be consistent with the innocence of the accused. [59] However, based on the totality of the evidence, there are other inferences that can be drawn from the evidence that may explainwhy his fingerprint was on the closet mirror door. [60] The evidence regarding the positioning of the roll of paper before Mrs.

Allen left on vacation, as she claimed, tends to indicate thatsomeone opened the door in question. It seems that this could have been the accused or his girlfriend or both at the same time. [61] However, the inferences that can be drawn from the totality of the evidence does not point exclusively to the accused as the onlypossible perpetrator of the theft of the jewellery.

[ 62 ] The accused denies entering the bedroom for the purpose of committing a theft and denies taking the complainant’s jewellery during the period she was away. After considering the totality of the evidence, while there are concerns regarding his credibility, it does not rise to the level where the Court deems it can reject his entire testimony. [ 63 ] There is evidence that shows he had been in the bedroom for legitimate purposes around the time preceding the period Mrs. Allen was away on vacation. There is evidence that explains that he would have been near the closet mirror door in such circumstances.

The Court cannot exclude that his fingerprint may have ended up on the mirror during his presence in the room when he was conducting repairs to fix a leak coming from the hot tub. [ 64 ] After considering the totality of the evidence, while the court is not sure that the accused did not commit the theft of her jewellery, the evidence nevertheless does not establish beyond a reasonable that he in fact did enter the home during her absence and committed the alleged theft. CONSEQUENTLY , the accused is ACQUITTED . __________________________________ RICHARD MEREDITH, J.C.Q.

Me GENOIS, Camille Prosecutor Me BELLEY, Jacques Counsel for the accused Dates of hearing: October 2 and 20; November 27, 2023