2021 QCCQ 1476, 2021 QCCQ 1476

R. c. Corzo 2021 QCCQ 1476 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal and Penal Division No: 500-01-193104-194 DATE: March 23, 2021 ______________________________________________________________________ BY THE HONOURABLE ALEXANDRE ST-ONGE, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecut rix v.

MICHAEL CORZO Accused ______________________________________________________________________ REVISED JUDGMENT This judgment was revised on March 23, 2021 in order to correct the name of the counsel representing the accused. ______________________________________________________________________ BACKGROUND [ 1 ] The accused, Michael Corzo, is accused of assaulting Celia Beauchemin-Coulombe, the complainant, and uttering death, or bodily harm threats, on August 2, 2019. [ 2 ] M. Corzo was, at the time, the complainant’s boyfriend. They were the parents of a three months old son.

On August 2, 2019, the complainant had returned home from a visit at her father’s residence. The accused was out of the house visiting his family in Lasalle. On his way back, he called the complainant. He was angry regarding personal issues he had with members of his family. After a short talk, M. Corzo, unhappy about the way the complainant answered the phone, hung up. [ 3 ] Later that day, as the complainant was cooking some rice in the kitchen, the accused arrived home. He was angry, and he banged the door after entering the house.

He then started to insult her. [ 4 ] According to her testimony, he threw the pot of rice in the kitchen’ s sink, waking up their baby, whom she was carrying in a baby carrier. She tried to exit the kitchen, but could not, because the accused held her by the shoulders, against the doorframe. He then screamed at her, insulting her, before slapping her in the face. [ 5 ] The complainant then tried to exit the premises. She opened the door, but could not leave, because the accused was restraining her aggressively with one hand on her shoulder, preventing her to exit the residence.

He then closed the door. [ 6 ] She tried again to exit the premises, and reach the balcony, but she was prevented to do so by the accused who was blocking her, and still insulting her. [ 7 ] Then, the accused pushed her and she fell on the couch. She was still carrying her baby on her when she fell on the sofa. The accused then put himself over her two shoulders, as she laid on her back on the couch, yelling at her. He then slapped her on the back of the head. [ 8 ] They heard knocks on the door. The complainant thought it was a friend, who was supposed to visit that day. It was the police instead.

Two police officers soon intervened on the scene, checked the place, and after completing an initial investigation, left the house. [ 9 ] Later that day, the accused threw some Advil pills to the complainant’s face. Finally, he continued to insult the complainant. He also mentioned to her: “If the police comes back, I will kill you and both of them”. The complainant testified that violence had been present in their relationship for a long time. [ 10 ] The accused testified and denied all of the complainant’s allegations regarding the August 2 nd events .

However, he mentioned that during the incident, he had placed his hand on the complainant’s arm, holding her, when she had mentioned to him that she wanted to leave the house.

[ 11 ] Regarding the alleged death threats, the accused mentioned that, after the police officers had left the scene, he told the complainant: “Do you know what could have happened, someone could have been hurt”. [ 12 ] The complainant ultimately left the residence, went to a police station, and wrote a statement to the police. [ 13 ] An admission was made at the start of the trial to the effect that a neighbor, Ms. Trottier, who lived in the same building, heard crying, screams, and a baby crying, during the incident.

She also recognized the complainant and the accused’s voices. [ 14 ] The police officers who intervened on the premises were not called to testify by neither party. LEGAL ISSUES [ 15 ] I must determine the credibility and reliability of the accused and complainant’s testimonies and decide, ultimately, if the prosecution has proved the essential elements of the offences beyond a reasonable doubt? ANALYSIS Reasonable doubt and the presumption of innocence [ 16 ] In a criminal prosecution, the onus rests on the prosecution to prove the guilt of the accused beyond a reasonable doubt.

In meeting this onus, the prosecution must prove the actus reus and mens rea of the offences beyond a reasonable doubt. [ 17 ] The standard of proof “beyond a reasonable doubt” provides a safeguard to ensure that no innocent person is convicted [1] . [ 18 ] The principle of “beyond a reasonable doubt” has been defined as being closer to absolute certainty than to proof on a balance of probabilities. Nevertheless, the prosecution is not held to a standard of absolute certainty, which would be impossible to attain [2] . The Principles of R. v.

W. (D.) [ 19 ] It is well established that when an accused testifies in his own defense, the instruction in R. v. W.(D.) [3] applies. [ 20 ] The W.(D.) framework was designed to explain what reasonable doubt means in the face of an accused who testifies and refutes or contradicts the prosecution’s evidence.

This typically places the evidence of the prosecution’s witnesses in opposition to the defense evidence and requires an examination of the credibility of the witnesses. [ 21 ] References in the W.(D.) framework to credibility have been found to refer to both the credibility and reliability of the evidence as a whole. [ 22 ] The W.(D.) [4] framework is as follows: “First, if you believe the evidence of the accused, obviously, you must acquit. Second, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit.

Third, 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.” [ 23 ] Parts of a witness’ evidence, whether it is the accused or not, may be accepted and other parts, rejected. Some parts may be more important than others. [ 24 ] Also, in assessing the evidence of a witness, the trial judge must take into account any inconsistencies between the evidence given by the witness and something the witness may have said on an earlier occasion.

However, not all inconsistencies are of equal importance. In some cases, they can be explained by faulty memory, mistaken assumptions, or other factors. Sometimes they cannot. It is for the trial judge to assess an inconsistency against the evidence as a whole and against the inherent probability or improbability of the evidence.

That assessment may differ from witness to witness. [ 25 ] 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 prosecution’s case, but to the total body of evidence. [ 26 ] 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 does not need to prove his innocence.

It is for the prosecution to prove each of the essential elements of the offences charged beyond a reasonable doubt. Otherwise, the accused is entitled to an acquittal. Application [ 27 ] In the present case, I do not believe the accused’s denial of the material aspects of the prosecution’s case for the following reasons: 1. His version of the events brings out his animosity towards the complainant and, hence, it affects his credibility. He insulted her without reasons when he came back from his parent’s place.

He was angry and aggressive, and he mentioned, during his testimony, without being asked about it, a past incident where the complainant would have threatened to take her own life;

2. He was unresponsive at times during his cross examination; 3. His denial of being jealous, during his cross-examination, is contrary to the evidence as a whole that demonstrated he was in fact jealous; 4.

He exaggerated his fear of the police officers. [ 28 ] However, the fact that he mentioned he was engaged to the victim, even if there was no ring, plan or date in sight, does not adversely affect the credibility of his testimony since the complainant had mentioned during her testimony that the accused kept telling her she was his fiancée. [ 29 ] When I analyze the accused’s testimony with the rest of the evidence, I am left with a reasonable doubt regarding the veracity of the complainant’s version of events. [ 30 ] Firstly, the accused admitted unfavorable elements during his testimony: The fact that he was angry, that he had torn up his shirt and that he had insulted her.

Also, he admitted putting his hand on the complainant, and holding her when she wanted to leave. [ 31 ] Secondly, I am of the opinion that the complainant’s cross-examination affected the credibility and reliability of her testimony to the point where, after the analysis of step 2 of the W .(D . ) test, I am not convinced beyond a reasonable doubt of the veracity of her testimony concerning the disputed material aspects of the case.

I come to that conclusion because of the accused denial of the complainant’s allegations, and the following reasons concerning the credibility and reliability of the complainant’s testimony: 1. The complainant did not mention in her police statement that the accused had held her by the shoulders on the doorframe and that he had slapped her in the face; 2. She did not mention in her police statement that the accused had restrained her by a shoulder; 3. She did not mention in her police statement that the accused, after having pushed her on the couch: • Had leaned over her, and; • Had slapped her. 4.

She had lied to the police officers when they first intervened on the premises, telling them the accused was just a friend, instead of the infant’s father; 5. Her affirmation that M. Corzo had accused her of having called the police is inconsistent with her testimony to the effect that he was with her the whole time before they heard knocks on the door. If so, why then would he accuse her of that, since he knew it was not the case, because he was with her all the time leading up to the door knocks. [ 32 ] These abovementioned elements concern important aspects of the prosecution’s case.

Also, the complainant lied to the police officers. Combined with the accused’s denial, even with its own shortcomings regarding credibility, they raise a reasonable doubt concerning the veracity to the complainant’s version of event. [ 33 ] The Ontario Court of Appeal, in R. v.

A.M. a sexual interference case [6] , mentions that consistency in a witness’ version of the events matters when it comes to credibility : " Fourth, one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath : (…)." [7] “Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects.

Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.) , at p. 354.” [8] [ 34 ] Concerning the absence of details in a police statement, the Alberta Court of Appeal, in R. v . Dez [9] , mentions that the absence of details in a prior statement is not automatically a material inconsistency. The real question is :

a) whether the content of what is missing is material,

b) whether, as a matter of reason and common sense, one would have expected the absent statement to be present in the prior statement, and

c) whether the absence can be explained or understood. [ 35 ] Applying these principles, I am of the opinion that the content of what is missing in the complainant’s police statement is material as it concerns physical abuse incidents described by the complainant in her testimony. They do not concern details nor peripheral matters. [ 36 ] As a matter of reason and common sense, one would have expected those missing facts to be present in the police statement, since they represent an important part of the complainant’s allegations against the accused.

Also, what are missing are not details, but serious allegations. [ 37 ] When cross examined on why she omitted those allegations, the complainant mentioned that she had been afraid of what would have happened to the accused, and that he had a hold on her. [ 38 ] Even though this explanation could be reasonable considering the domestic abuse context and dynamics of the present case, I am not convinced by it, when I consider all the evidence, particularly the accused’ s denial of what the complainant had omitted to mention, and the complainant’s lie to the police officers who had intervened on the premises.

A reasonable explanation for these omissions, in the present case, could also be either carelessness for the truth, exaggeration and /or fabrication.

[ 39 ] Therefore, in the circumstances of the present case, I find that the complainant’s failure to disclose these facts in her police statement impacts negatively the credibility and reliability of her testimony. [ 40 ] I am not convinced beyond a reasonable doubt that the accused assaulted the complainant in the manner she described in her testimony. Also, I am not convinced beyond a reasonable doubt that the accused had thrown Advil pills in her direction. Thirdly, I am not convinced beyond a reasonable doubt that the accused had uttered the death threats the complainant mentioned.

The accused’s testimony and the weaknesses in the complainant’s testimony raise a reasonable doubt on those questions. [ 41 ] Finally, when I evaluate the evidence as a whole, I am also not convinced beyond a reasonable doubt that the words “Do you know what could have happened, someone could have been hurt” were mentioned by the accused. Therefore, I find the accused not guilty of uttering death or bodily harm threats. [ 42 ] After considering all of the evidence, I am however convinced beyond a reasonable doubts the following facts occurred: 1.

A dispute arose between the accused and the complainant when he returned home on August 2 nd , 2019; 2. The accused was angry. He insulted the complainant, and tore out his shirt; 3. He put back, aggressively in the sink, the pot of rice the complainant was cooking; 4. At one point during the dispute, the complainant told the accused that she wanted to leave the house and the accused placed his hand on her arm. [ 43 ] The accused admitted placing his hand on the complainant’s arm and holding her. I accept his testimony in that regard, and it is consistent with the evidence that I accept.

The question I must now ask myself is whether or not it constitutes an illegal assault. [ 44 ] The definition of assault is mentioned in

section 265 of the Criminal Code . In the present case, section 265(1)

a) applies: 265

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly. [ 45 ] In the present case, the accused applied force on the complainant when he placed his hand on her arm, as she wanted to leave the premises. Also, I am convinced beyond a reasonable doubt the complainant did not consent to this application of force by the accused since she was being insulted, the accused was angry and aggressive, and she wanted to leave the house.

Therefore, the material elements of the offence are proved beyond a reasonable doubt. [ 46 ] As for the intentional element, or the mens rea , I am of the opinion that proof was made beyond a reasonable doubt that the touching was intentional, as I conclude it was done to prevent the complainant from leaving the house. Also, I am convinced the accused did not “gently” touched her, as he was angry and acting aggressively (rice bowl in the sink, insults and shirt ripped off). [ 47 ] I accept the evidence that he was angry, aggressive and wanted attention. He did not want the complainant to leave.

He touched her on the arm to prevent her from leaving because he wanted attention. The intentional element of the offence is proved beyond a reasonable doubt. CONCLUSION [ 48 ] In the end, I am satisfied beyond a reasonable doubt that the accused assaulted the complainant when he placed his hand on her arm.

However, I am not convinced beyond a reasonable doubt that the accused committed the acts described by the complainant in her testimony. [ 49 ] I am not convinced beyond reasonable doubt that the accused threatened the complainant the way she described in court. [ 50 ] The accused is found guilty of assault against Celia Beauchemin-Coulombe; [ 51 ] The accused is found not guilty of uttering a threat to cause death or bodily harm to Celia Beauchemin-Coulombe. __________________________________ ALEXANDRE ST-ONGE, J.C.Q.

Me Chritopher Hadjis-ChartrandFor the prosecutrix Me Guillaume TremblayFor the accused Dates of hearing: September 30, 2020November 17, 2020 [2] R. v. Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144, at para. 242.