2018 QCCQ 3541, 2018 QCCQ 3541

R. c. R.T. 2018 QCCQ 3541 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF BEDFORD LOCALITY OF COWANSVILLE “Criminal and Penal Division” No.: 455-01-013467-141 DATE: May 22, 2018 ______________________________________________________________________ PRESIDED BY: THE HONOURABLE SERGE CHAMPOUX, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v. R. T.

Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ By order of the Court rendered in accordance with 486.4(1) of the Criminal Code , the publishing, broadcasting or transmitting in any way of any information that could identify the person described in this judgment as the complainant is prohibited. [ 1 ] I have before me a case that I consider among the most difficult I have been given to decide or rule upon. [ 2 ] R.

T. was originally charged with three counts of sexual misconduct against X, one of his spouse’s daughters. [ 3 ] At the end of a trial marked by postponements, the prosecution and defence presented the Court with documents from which they ask me to draw a conclusion and render a judgment that hardly seems justifiable. Such a ruling does not appear to be consistent with the evidence adduced to date, yet the evidence in question, which appears to be only preliminary or partial, is the only evidence available to me. [ 4 ] Let me explain. [ 5 ] X is the complainant. She is the daughter of K. P. and P.

R., who are separated. When X’s mother began a relationship with the accused, she had custody of X. X recounts three or four separate events, depending on whether the third is considered a single or two distinct events. [ 6 ] According to X, the first event took place while she was alone in the apartment with the accused. She believes that she was seven years old. Her mother was at work. It all happened around supper time. She was tired; she told the accused that she wanted to lie down and went to her room to do so.

She claims that the accused entered her room a few minutes later, lay down on the bed and, believing she was asleep, took out his penis and began rubbing it against her buttocks and back. He also caressed her with his hands. The incident did not last more than twenty minutes or so. He left the room, and then she did the same, going to her grandmother’s apartment in the same building, across the hall. [ 7 ] She claims that she told one of her brothers, asking him not to say anything.

He nevertheless told the grandmother, who told the mother, who then spoke with X’s father. [ 8 ] In the end, X’s understanding from all this was that, basically, her mother did not believe her. [ 9 ] About three years later, during the second incident, she claims she was in bed. The accused entered her bedroom and acted as though he thought that she was sleeping. Once again, he caressed her and even went under the covers, pulled down her clothing and licked her vulva. He left her room shortly thereafter. She followed him out of the room and he asked her if something was wrong.

She did not answer. [ 10 ] The final event or events occurred when the accused allegedly caressed X’s thigh, either once or twice, when she was at the family computer or watching television. On one of these occasions – she is not certain if they occurred on the same day – the accused was sitting on the sofa with a blanket covering his legs, and she believes that he was masturbating under the blanket. These most recent facts happened a few days before she reported him to her school. They took place in 2012, a little over five years ago.

[ 11 ] In January 2013, X gave a video interview to a police officer specializing in these matters. The recording of this interview was filed as exhibit P-1. [ 12 ] The complainant is the only witness called by the Crown. [ 13 ] The defence was presented over five years after the facts. Many witnesses were heard, all of whom indicated that they trust the accused and that he enjoys a good reputation among his friends and family. [ 14 ] K. P., X’s mother, testified.

She does not really live with the accused, but she now has three children with him, the youngest of whom is 18 months old. [ 15 ] She testified about an event that was, in her mind at least, completely different from the first one X described. It is the only one she knows about. It was brought to her attention when X was about seven years old. [ 16 ] She described an entirely different incident, during which she claims she was present when the accused went to rub X’s back to help her fall asleep, fell asleep as well, and then came back out of the room normally.

It was the next day that her mother, X’s grandmother, told her X’s account, specifically, that she had been touched as described above in paragraph [6]. [ 17 ] She claims that she confronted the accused, who said that he had no memory of having acted inappropriately in any way as he had merely fallen asleep. [ 18 ] Following this event, she states, the accused wondered if it might be possible that he committed acts of a sexual nature in his sleep. A former spouse of his apparently claimed that she had experienced similar situations, as K. P. had as well. The family doctor was consulted.

She has no knowledge of any other incidents. [ 19 ] With respect to this incident, the accused himself stated that he went to give a back rub to X, who was exceptionally in the lower bunk of the bed in her room, and he fell asleep while doing this. The next day, it was alleged that he had sexually assaulted her. He made the connection with remarks by ex-girlfriends, who had said that he might have displayed uncontrolled sexual behaviour in his sleep. He does not remember any of it. [ 20 ] The only time he can state that he was alone with X was a few years later, when he was alone in K. P.’s apartment.

He decided to lie down on the bed and have a nap. When he woke up, X was next to him and asked him what he had been dreaming. He found the question strange. [ 21 ] He believes that this may have been the second incident. He was neither examined nor cross-examined about the last two incidents. [ 22 ] When the hearing continued on March 23, 2018, counsel informed me that they had come to an agreement: the defence had obtained an expert report from Dr. Alex Desautels, a physician specializing in sleep medicine, and another from Dr. Pierre Gagné, a psychiatrist. These two reports were filed by consent.

No experts were heard, however, and none were present. [ 23 ] Together, the prosecution and defence indicated that after reading these expert reports, and in light of the evidence I suppose, I should order a stay of proceedings on counts 2 and 3 and reach a verdict of not criminally responsible on account of mental disorder on count 1, as amended to indicate that the prosecution was now

summary. [ 24 ] I hope all can agree that should the complainant’s testimony be deemed credible once the evidence has been analyzed, the defence of automatism or mental disorder presented by the accused would make no sense. Indeed, for two of the three events (or three of the four), the accused was not sleeping. [ 25 ] During the first event, it appears that he was making supper.

I find it very difficult to imagine that his disorder took hold of him in the kitchen at suppertime, that he went into the child’s room and assaulted her for a few minutes, and that he immediately and spontaneously woke up and went back to business as usual. [ 26 ] During the last event, no one was lying down and no one was sleeping.

They were in the living room, watching television or using the computer. [ 27 ] Obviously, the Crown must have believed the defence testimony if it is considered that the accused can benefit from the defence he has raised (i.e., that he has proved his medical condition on a balance of probabilities), [1] despite its inconsistencies and implausibility.

I also assume that the facts as reported in the defence evidence were examined closely, even though they are difficult to reconcile with the sometimes vague, sometimes technical jargon used in the expert reports, thus justifying the pointlessness of cross- examining the experts. [ 28 ] I continue to have serious misgivings about the evidence adduced and the evidence that remains to be presented. [ 29 ] For example, counsel for the accused attempted to file an email received from Kr. Pr., who was the accused’s girlfriend for eleven years, to stand as evidence.

He indicated that he would have liked to call her to testify but had been unable to do so. He therefore subpoenaed her parents, and Ms. Pr.’s mother, M. C., testified briefly. At the end of the testimony, I refused to order Ms. C. to provide her daughter’s address, which prompted an application from the defence to admit the email dated January 14, 2015, as proof of the truth. The purpose of this exercise was to demonstrate that the accused had displayed behaviour in the past that was consistent with his claim that he suffers from sexomnia.

The two expert reports used these allegations to reach their conclusions. [ 30 ] But this email and the attending circumstances raise serious questions. First, Ms. Pr.’s testimony appeared to reveal anxiety, even fear from Kr. Pr., much more than anger against the accused. The authenticity of this document is also debatable, just as there appears to me that this is an attempt to read more into it than it really contains.

[ 31 ] The second concern touches upon the alleged duration of Ms. Pr.’s relationship with the accused. She expressly writes that she was in a relationship with the accused until December 2012 . The year 2012 was when the accused shut the video rental store he operated with Kr. Pr. , which is relevant to the content of several witnesses’ testimony. [ 32 ] It is particularly troubling. The charges against R. T. concern facts that occurred between 2008 and 2012 , that is, entirely during the time he was in theory in a relationship with Kr. Pr.. [ 33 ] When we listen back to the testimony of V. M., A. M. and S.

D., three young women who came to testify about the accused’s personal character with the accused’s relationship with K. P. in mind, the situation becomes quite troubling. [ 34 ] Indeed, there is absolutely nothing in their testimony to indicate that they knew that while Kr. Pr. was in relationship with the accused, in 2012 or earlier, R. T. had a new family or another family with K. P. and her three children. How is it that this man who is described as a model of attentiveness to other people’s children does not appear to have brought his own, including X, to the business he operated in Town A?

What are we to make of the fact that she seemed absent from 2008 to 2012 of what V. and A. M. claimed they experienced at the same period of time? [ 35 ] Furthermore, Kr. Pr.’s email clearly indicates that during her relationship with R. T., which she claims ended in December 2012, even if she has suspected that the accused suffered from a certain sleep disorder, no one, neither Ms. Pr. nor Mr. T., saw a doctor about the purported sexomnia. [ 36 ] However, according to the submissions of the accused and K. P., in 2008 , when X was seven years old, K.

P. claims to have done a great deal of online research on this issue, which drove her to ask the accused to see his family doctor, Dr. Lesieur. This event predates the end of the accused’s relationship with Kr. Pr. by four years ! [ 37 ] The accused’s devotion to family values appears solidly demonstrated by the convincing and assuredly sincere testimony of witnesses V. and A. M., S. D., Sa. R., F. M. and H. S.. [ 38 ] Paradoxically, it also appears from the evidence that ultimately, even though the accused and K.

P. now have three children together, the youngest of whom is only 18 months old, they have never actually lived together, neither before X’s denunciations nor after. I have not received any clear explanations for this. [ 39 ] What is more, the incident described by K. P. and the accused as the first one remains deeply unsettling. [ 40 ] From a strictly factual point of view, I point out that K. P. filed a sketch of her apartment. In it, she identified a room as “my bedroom”. So far, there is nothing particularly ambiguous. When R. T. testified, however, it was revealed that this space is not K.

P.’s room because she sleeps in the same bedroom as her daughters, in the lower bunk where the assault allegedly took place. [ 41 ] What, then, is the room identified as “my bedroom”? We learned from R. T. that it was in fact entirely devoted at the time to storing the belongings of K. P.’s former spouse, a man named Ru., who was taking his time to retrieve them. [ 42 ] But how much time did he take? It is noteworthy that, according to their submissions, their daughter Y had been born by this time.

If we calculate a predictable period of time for dating, the pregnancy, and the delivery, the former spouse was very tardy indeed in fetching the belongings that completely took up one of the two bedrooms in K. P.’s apartment. [ 43 ] But the story they tell is also surprising, to say the least. For a “total” period of time that they estimate to be between 20 and 30 minutes, R. T. went into X’s bedroom (which we now know was also K.

P. and Y’s room) gave X at least the beginning of a back rub, fell asleep, sexually assaulted her, did not snore or breathe loudly, woke up on his own, left the room as though nothing had happened and went back to the living room where K. P. was. [ 44 ] Despite the fact that everyone at the trial, including the experts, seemed to find this alleged episode of sexomnia to be convincing, it does not resemble anything alleged in the expert reports for example, or, it is worth noting, in the case law filed by counsel in support of the likelihood of this illness or condition.

This description does not match what was experienced by the witnesses such as K. P. or Kr. Pr. – if Kr. Pr. may be considered a “witness” –, who allege that at these times, the accused would snore or turn over and sleep for the rest of the night. In this case, he fell asleep, assaulted a child, woke up on his own and calmly went back to continue the evening with his spouse. [ 45 ] Be that as it may, the role of Canadian judges is not to investigate or call witnesses to testify before them to answer questions or to participate in the search for evidence.

A judge must simply listen to the evidence adduced and decide accordingly, regardless of what that judge may believe or think of the nature or quality of the evidence or of its presentation. A judge has no power, or very little, over the manner in which counsel will conduct their cases. For example, I cannot understand how, contrary to many other comparable cases involving allegations of sexual misconduct, the accused has not been prohibited from having contact with the child. Once again, I have no power over this aspect. [ 46 ] In the case at hand, two expert reports have been filed by consent.

Neither of the two physicians testified before the Court and according to counsel, these expert reports allow me, or even compel me, to recognize that the accused has met the conditions of s. 16 of the Criminal Code to be found not criminally responsible on account of mental disorder.

That is necessarily what arises from a reading of these documents. [ 47 ] Despite all my questions and misgivings, I do not see how I can escape this conclusion. [ 48 ] FOR THESE REASONS, I ORDER A STAY OF THE PROCEEDINGS on counts 2 and 3 and I FIND the accused NOT CRIMINALLY RESPONSIBLE ON ACCOUNT OF MENTAL DISORDER on count 1 as amended to be prosecuted by way of

summary conviction.

__________________________________ Serge Champoux, J.C.Q. Mtre Marie-Line Ducharme Counsel for the prosecution Mtre Thomas P. Walsh Counsel for the accused Date of hearing: February 16 and March 23, 2018