2024 QCCA 76, 2024 QCCA 76

Hoy c. R. 2024 QCCA 76 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-003926-214 ( 610-01-008110-201 ) MINUTES OF THE HEARING WARNING : The trial court made an order under s. 486.4(1) Cr.C . directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way. DATE: January 17, 2024 PANEL: THE HONOURABLE JULIE DUTIL, J.A. GENEVIÈVE COTNAM, J.A. LORI RENÉE WEITZMAN, J.A. APPELLANT COUNSEL TYLER HOY Mtre VICTORIA NIX ( Boro, Frigon ) Mtre BRENDAN COFFEY ( Bayne, Sellar ) RESPONDENT COUNSEL HIS MAJESTY THE KING Mtre MARIE-CHRISTINE LOISEAU ( Director of Criminal and Penal Prosecutions )

On appeal from a judgment rendered on October 1, 2021, by the Honourable Dominique Wilhelmy of the Court of Québec, District of Témiscamingue.

NATURE OF THE APPEAL: Sexual assault – Assault causing bodily harm – Forcible confinement (guilt) Clerk at the hearing: Jennyfer Perron Courtroom: 4.33 – Videoconference HEARING 9:30 Calling of the case and identification of the parties; The Court addresses the parties; 9:31 Submissions by Mtre Coffey; Discussion between the Court and Mtre Coffey; Mtre Coffey continues his submissions; 10:09 Submissions by Mtre Loiseau; Discussion between the Court and Mtre Loiseau; Mtre Loiseau continues his submissions; 10:18 Reply by Mtre Coffey; 10:22 Recess of the hearing; 10:28 Resumption of the hearing; Judgment; 11:21 The parties return to the courtroom at the appellant’s request; Mtre Coffey requests the cancellation of an order contained in the sentence; 11:23 Discussion between the Court and the parties; 11:26 Recess of the hearing; 11:38 Resumption of the hearing; The Court addresses the parties; 11:39 The Court adds a conclusion to its judgment; End of the hearing.

Jennyfer Perron, Clerk at the hearing JUDGMENT WARNING : The trial court made an order under s. 486.4(1) Cr.C . directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way. [ 1 ] This is an appeal from a judgment rendered on October 1, 2021, by the Court of Québec, Criminal and Penal Division, District

of Témiscamingue (the Honourable Dominique Wilhelmy), finding the appellant guilty of sexual assault ( s. 271 (

a) Cr.C . ), assault causing bodily harm ( s. 267 (

b) Cr.C . ) and forcible confinement ( s. 279(2) Cr.C . ). [ 2 ] The facts can be summarized as follows. The complainant and the appellant had been dating since January 2019. At the time, the complainant worked for the appellant as a truck driver. They arrived together at Notre-Dame-du-Lac on the afternoon of August 2, 2019, to attend a truck rodeo festival. They drank alcohol in the afternoon and evening.

The appellant’s version and that of the complainant are at odds in many respects about what followed next. [ 3 ] The complainant testified that the appellant insisted all day that they should have sex that evening, to which she responded, “Well, maybe.” The complainant explained that when they came back to the appellant’s truck, where they had planned to spend the night, she first told the appellant that she did not want to have sex and that she wanted to sleep, but finally she agreed.

A few minutes after the beginning of the sexual intercourse, she asked the appellant to stop, as she was hungry and wanted to eat the rest of the poutine that was left in the cooler from lunchtime. [ 4 ] The appellant did put an end to the sexual intercourse, but according to the complainant, he only did so five minutes after she withdrew her consent. [ 5 ] The complainant explained that when they returned to bed, as she was changing places, she accidentally stepped on the appellant’s testicles. An altercation lasting a few minutes ensued, during which he was holding her jaw open with his thumb and fingers.

According to her testimony, she began bleeding profusely from the mouth and spat blood all over the truck. At this point, she began taking photos and a short video while the appellant was sitting in the driver’s seat, which were tendered in evidence. She also claims he prevented her from leaving the truck. [ 6 ] The appellant’s version is quite different. He testified that the sexual intercourse was consensual throughout and ended as soon as the complainant wanted to stop to have a snack, although he admitted that he was disappointed.

He added that he did not cause any injury to the complainant intentionally, but he did shove her as he defended himself after the complainant kneed him in the testicles. She also bit his arm. He added that the complainant was drunk. The appellant testified that he feared the complainant, because “she is two- sided, she is quite evil ”. [ 7 ] In a brief oral judgment, the judge rejected the appellant’s testimony. She noted that it was difficult to find him credible or reliable when he claimed to fear for his life.

The judge stated: […] It is difficult to give any reliability and credibility on his testimony when he said that he was scared of her, that he was in fear of his life when he was sitting in the driver seat. From we hear from the video, it’s impossible that this person, it’s inconsistent that this person is scared. [1] [Transcribed from the original] [ 8 ] The judge further concluded that the appellant’s claim that he feared for his life contradicted his self-defence evidence: So, for that reason, the testimony of the accused does not raise any reasonable doubt in my mind.

Now, I have to put his testimony in view of the whole proof and when I look at the video and I look at the photos, when I heard the testimony of Mr. MacDonald, I must say that (inaudible), the self-defence, the fact that she attacked him, the fact that he feared for his life is in contradiction with the whole proof. [2] [Transcribed from the original] [ 9 ] As for the complainant’s testimony, the judge stated the following: What about the testimony of the victim, Mrs. [C]? Mrs. [C] testified in this case calmly and emotionally.

She was emotional when she spoke about the details regarding the sexual assault and the injuries she suffered. Analyzing her testimony and what she told us, the way she did it with the same (inaudible), the same gestures when she showed us how she had... how she was hurt in her mouth, I cannot find any contradiction or inconsistencies. For sure, some of the details were forgotten but as the Crown said, there is no perfect victim. Everyone reacts in his own way, with her personality, her education.

And the reactions of the victim are consistent with her testimony, so I believe that the Crown has met with his burden of proof. [3] [Transcribed from the original] [ 10 ] This analysis of the complainant’s testimony leads her to conclude her judgment as follows: So Mister, I find you are guilty of the three (inaudible), I find you guilty and I ask you to forgive me for my voice this morning. [4] [ 11 ] The appellant first argues that the judge’s reasons are “insufficient, devoid of any functional or rational connection to the live issues on the trial”.

The Court finds that this first ground of appeal is well founded. [ 12 ] Indeed, the judge did not address any of the essential elements of the offences. [ 13 ] First, it is impossible to understand, when reading the judgment, how the judge found the appellant guilty on the count of sexual assault, without even addressing the evidence that the complainant was intoxicated that evening and its potential effect on her reliability.

She made no mention of the testimony of an independent witness who stated that the complainant was heavily intoxicated by alcohol that night, nor of the complainant’s own contradictory testimony on this point. Second, on the count of assault causing bodily harm, no analysis whatsoever deals with the defense of self-defence. Finally, the count of forcible confinement is not addressed at all in the

judge’s brief analysis, and no mention is made of the appellant’s claim that the complainant could have exited the truck through the rear door. [ 14 ] Thus, the judgment’s reasons do not fulfill their function of explaining to the appellant why he was convicted, and they fail to disclose an intelligible basis for the verdict, capable of permitting meaningful appellate review. [5] [ 15 ] In addition, when she explained why she did not believe the appellant, the judge made a palpable error by indicating, on three occasions, that the appellant claimed to fear for his life.

As mentioned earlier, what he stated was that he feared the plaintiff, because he views her as “two-sided, evil and manipulative”. [ 16 ] This error is overriding because the statement erroneously attributed to the appellant — that is, that he feared for his life — was relied upon to completely set aside his testimony. [ 17 ] Given the Court’s conclusion on the sufficiency of the reasons as well as on the judge’s error regarding the appellant’s testimony, it is not necessary to deal with the other grounds of appeal. A new trial must be ordered.

FOR THE FOREGOING REASONS, THE COURT: [ 18 ] GRANTS the appeal; [ 19 ] SETS ASIDE the judgment at first instance; [ 20 ] SET ASIDES any ancillary order that may have been rendered following the conviction; [ 21 ] ORDERS a new trial. JULIE DUTIL, J.A. GENEVIÈVE COTNAM, J.A. LORI RENÉE WEITZMAN, J.A.