2010 QCCA 2285, 2010 QCCA 2285

Unofficial English Translation Lessard c. R. 2010 QCCA 2285 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL NO.: 500-10-004125-082 (700-01-064688-065) RECORD OF PROCEEDINGS DATE: DECEMBER 7, 2010 CORAM: THE HONOURABLE MARC BEAUREGARD, J.A. ANDRÉ ROCHON, J.A. GUY GAGNON, J.A. APPELLANT(

S) COUNSEL ALAIN LESSARD Mtre Normand Haché HACHÉ ET ASSOCIÉS RESPONDENT(

S) COUNSEL HER MAJESTY THE QUEEN Mtre Claudia Carbonneau CRIMINAL AND PENAL PROSECUTING ATTORNEY COUNSEL

On appeal from a judgment rendered on April 11, 2008, by the Honourable Judge Michèle Toupin of the Court of Quebec, Criminal and Penal Division, District of Terrebonne. NATURE OF APPEAL : CONVICTION – ASSAULT Clerk: MARC LEBLANC Room: PIERRE-BASILE-MIGNAULT HEARING 10:26 a.m. Submissions of Mtre Haché. 10:48 a.m. Submissions of Mtre Carbonneau. 10:54 a.m. Reply of Mtre Haché. 10:56 a.m. Suspension of hearing. 11:19 a.m. Hearing resumed. Judgment rendered – see page 3. 11:24 a.m. End of hearing. Marc Leblanc Court clerk PER CURIAM RULING

[ 1 ] For the reasons of André Rochon and Guy Gagnon JJ.A., THE COURT: [ 2 ] DISMISSES the appeal; [ 3 ] For his part and for another reason, Marc Beauregard J.A. would have allowed the appeal and would have acquitted the appellant. MARC BEAUREGARD, J.A. ANDRÉ ROCHON, J.A. GUY GAGNON, J.A.

REASONS OF ROCHON AND GAGNON, JJ.A. [1] The appellant was convicted by the Court of Quebec on April 11, 2008, (the Honourable Judge Michèle Toupin) of assault causing bodily harm to his sister, S.L. (subsection 267(

b) Cr. C.). He appeals. [2] He asserts that he did not receive effective assistance from his counsel, Mtre Louis Peter Morena, during his trial. Mtre Morena is an Anglophone. The appellant accuses him of not having sufficiently mastering the rudiments of the French language, such that he was unable to suitably present their theory of the cause. He also blames him for having antagonized the trial judge with his behaviour during cross-examination of the complainant.

Finally, he alleges that his lawyer should never have agreed to let the medical records of S.L. be filed into evidence, a consent that was detrimental to his rights. [3] The examples that the appellant cites to demonstrate the deficiencies of Mtre Morena’s French come from words spoken during his argument and not during the presentation of evidence. The appellant does not demonstrate that his lawyer’s alleged communication difficulties prevented him from suitably presenting the defence thesis, namely that of the accident.

Moreover, the appellant’s thesis was understood and analyzed by the trial judge. [ 4 ] As for the assertion that Mtre Morena’s attitude antagonized the trial judge, it has no plausible foundation. [ 5 ] Finally, Mtre Morena stated clearly during his argument that the purpose of consent for submission of the medical records was only to confirm the nature of the injuries sustained by S.L. and not to explain their origin.

A careful reading of the judgment shows that the judge retained this evidence for that purpose alone. [ 6 ] In brief, the appellant has not convinced us that Mtre Morena’s role during the trial had a determinative effect on the reliability of the verdict or that it caused any denial of justice. [1] [ 7 ] The appellant also seeks the Court’s intervention on the ground that the trial judge erred in interpreting the testimony of the complainant, of her son S., of her nephew E., and that of the accused. The trial judge saw and heard the witnesses.

Her analysis is detailed and based essentially on an assessment of their credibility. In the absence of a palpable error, the principle of non-intervention by an appellate court regarding the findings of fact of the trial judge must prevail. [2] [ 8 ] As the third and last ground, the appellant asserts that the trial judge erred by interpreting the concept of excessive force relative to the defence of self-defence. The judge believed, in light of the circumstances of the matter, that the appellant’s physical integrity had not been jeopardized.

She said she was of the opinion that, in any event, even if the victim had held the accused, the force used by the appellant to free himself went far beyond what was necessary to defend himself. She deemed his counterblow disproportionate, excessive, completely unreasonable and unjustified.

These conclusions scarcely give rise to reasonable doubt. [ 9 ] We are also of the opinion that the determinations of the trial judge are based on the evidence adduced during the trial, and the appellant has not convinced us that in exercising her legal discretion she made palpable and overriding errors that would have justified our intervention. [ 10 ] For these reasons, the appeal is dismissed. ANDRÉ ROCHON, J.A. GUY GAGNON, J.A.

REASONS OF BEAUREGARD, J.A. [1] The appellant was attacked by the victim. [2] Even if she alleges that the appellant broke her arm by twisting it, we cannot be certain that the victim did not break her arm by falling on a fence. [3] Can one be satisfied beyond a reasonable doubt that, during the few seconds when the appellant tried to free himself from the victim, he was able to determine the scope of the force he used and that he in fact used excessive force? [4] The scuffle between the victim and the appellant had a very unfortunate consequence for the victim, but the severity of the consequence should not lead to the conclusion that the appellant’s conduct was blameworthy to the point where one can state that he committed a crime. [5] For these reasons, I would have allowed the appeal and acquitted the appellant.

MARC BEAUREGARD, J.A.