R. v . W., 2011 QCCQ 1920

LSJPA -- 115 2011 QCCQ 1920 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ... LOCALITY OF ... “Youth Division” No.: 610-03-000633-099 DATE: March 4, 2011 ____________________________________________________________________ PRESIDING : THE HONOURABLE NANCY McKENNA, J.C.Q. ____________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v. X Accused ____________________________________________________________________ JUDGMENT ____________________________________________________________________ [ 1 ] It should be pointed out that the Court made an order pursuant to

section 486.4 of the Criminal Code prohibiting the publication of the identity of the complainants or any information that could identify them. [ 2 ] The accused, now aged 50, is being tried on four counts relating to sexual offences against three alleged victims. With regard to one of the victims, he is accused of indecent assault and sexual intercourse with a female who is not his wife. The prosecution presented no evidence in connection with those charges.

Consequently, the accused is acquitted on the first and second counts. [ 3 ] The accused is also charged with two counts of indecent assault, one between January 1, 1975, and December 31, 1979, against his niece Y and the other between January 1, 1978, and December 31, 1979, against his niece Z. [ 4 ] At the outset of the trial, the prosecution moved that the evidence supporting the charges be used as similar fact evidence, on each count.

Counsel for the accused stated that it would be desirable for the Court to hear all of the evidence, including the defence, before ruling on the admissibility of similar fact evidence. According to him, it was only after hearing all of the evidence that the Court would be able to weigh the probative value of that evidence against its prejudicial effect. Despite the Court’s concerns regarding the standard of proof and the timing of that decision, defence counsel argued that his client would suffer no prejudice by reason of this manner of proceeding.

The Court thus accepted the request of the parties and agreed to hear all of the evidence before ruling on the admissibility of the similar fact evidence. ISSUES [ 5 ] The Court must first rule on the admissibility of the prosecution’s evidence as similar facts. [ 6 ] In addition, the question of credibility is important to the outcome of this case. The evidence must thus be analyzed in light of the test proposed by the Supreme Court in R. v .

W. (D.). [1] In this analysis, the Court must decide if the alibi evidence presented by the accused raises a reasonable doubt. [ 7 ] Finally, if the Court does not believe the accused and his alibi defence does not raise a reasonable doubt, does the evidence of the prosecution prove the identity of the accused beyond a reasonable doubt? FACTS [ 8 ] The two complainants Y and Z, born in 1970 and 1971 respectively, are the daughters of the sisters A and B, who have six brothers, including the accused and his twin brother C.

At various times, the twin brothers lived in the family home of their parents in city A [in Region A]. [ 9 ] As a young girl, Y lived with her parents [in province A], but spent part of each summer at their cottage, also in city A. Although she lived at the cottage for part of each summer, she visited her grandparents four to five times a year for family get-togethers. [ 10 ] When she visited her grandparents during the summer, she always returned to the cottage with her parents to sleep.

At other times of the year, when she didn’t stay at the cottage, she slept in her grandparents’ home in what she calls the “pink room”. A mattress was laid on the floor ahead of time for her to sleep on.

[ 11 ] These facts lead her to believe that the abuse she suffered at the hands of the accused happened in the pink room during the summer since there was no mattress on the floor. [ 12 ] With regard to the abuse, she does not remember why she was in that room, but testifies that she was there with the accused, who asked her to pull down her underwear. Who removed her underwear? Y is not able to confirm this, but she declares that the accused touched her vulva with his mouth. The accused asked her to let him do this so she would not get pregnant.

She also recalls that there was a quarter involved, but cannot say whether this occurred before or after the abuse. [ 13 ] Y is certain that her abuser was the accused, and not his twin, because she could tell them apart by the fact that, unlike that of her uncle C, she did not like seeing the face of the accused. Moreover, she associates the accused with uncalled-for and unpleasant remarks. [ 14 ] Questioned about the facial features that enabled her to distinguish one uncle from the other, Y had to refresh her memory by rereading the statement she had made to the police.

She concluded that the accused had a [translation] “hard, mean” face, whereas her uncle C had a [translation] “kind, smiling” face. She added that it was possible that the abuse she suffered could have influenced her perception of the features described. [ 15 ] At about the age of 11 or 12, she was informed by her mother that a cousin had been sexually abused by the accused. Questioned in turn by her mother, she confirmed that she had also suffered the same kind of abuse from the uncle in question.

She supplied no other details at that time. [ 16 ] Twenty-five years later, in 2008, her cousin D told her that she had been touched in a sexual way by the accused. She knew that her cousin Z had also been abused in a similar way by the same uncle. Since her two cousins intended to file a complaint, she decided to do the same. She added that she had never discussed with her cousins the details of the abuse they had suffered. [ 17 ] For her part, Z affirms that she and her parents frequently visited her grandparents ... who lived in city A.

It was there that she also regularly encountered the accused and her uncles C and E. She recalls that, at the time, she very much enjoyed the company of the accused, who paid her a lot of attention and took the time to play with her. [ 18 ] When she was seven years old, the accused invited her to go partridge shooting with him, her uncle E, and her younger brother, F. To confirm her age that fall, she refers to her school attendance, stating that she must have been in kindergarten or grade one.

Indeed, she was going through a happy period at school, but all that changed starting in grade two. [ 19 ] She thus went into a wooded area located a five to ten minute walk from her grandparents’ home, accompanied by her younger brother and her two uncles, both of whom carried rifles. Once they had arrived at the hunting grounds, the accused asked his brother and the young F to keep walking and took advantage of their absence to remove Z’s pants and underwear. He lay her down on the ground and performed oral sex and digital penetration on her. The return of his brother and F put an end to the abuse.

He told Z to get dressed and to say nothing. She remembers seeing her uncle do up his pants but cannot say exactly when he undid them. [ 20 ] Z supports her conviction that it was the accused, and not his twin, who abused her by the fact that she identifies the twin C by his gentle demeanour, unlike that of the accused, who is more aggressive and harsh in his words. [ 21 ] Later on, during a family party, the accused approached her and Y, teased them, and walked away.

It was then that Z told her cousin of the vague uneasiness she felt in the presence of the accused, a feeling that her cousin shared. [ 22 ] Z reports that, when she was about 12, the accused entered her room and asked her to have sexual relations with him. Angry, she firmly declined and scolded the accused. Soon after that, she told her mother about the abuse she had suffered as a young child. [ 23 ] That same year, at the Christmas party, the accused was intoxicated and raised a ruckus, shouting and acting aggressively toward family members. Z did not know exactly why.

Wishing to understand what was happening, the wife of the accused asked Z to explain. Z could not enlighten her but suggested she keep an eye on her daughters. [ 24 ] As in the case of Y, Z was informed of D’s intention to file a complaint and decided to do likewise. She admits that, after the complaint was filed, she discussed the abuse with D a few times, without going into great detail. She also admits that she informed Y of her decision to file a complaint but denies having discussed the details of the abuse with her. [ 25 ] Z’s brother F has hunted since he was a young child.

He remembers hunting as a child with his uncles X, E, C and G. [ 26 ] He also remembers going hunting with his uncles X and E and his sister Z, but remembers few details about those expeditions.

In particular, his memory is hazy regarding the number of times they went hunting, how they got to the hunting grounds, and the results of the hunt. [ 27 ] As a child, he could distinguish the accused from his twin since the accused was more arrogant than C. [ 28 ] A, Y’s mother and an older sister of the accused, begins her testimony by affirming that she was told, about 12 years previously, that her brother X had sexually abused her daughter. Her daughter revealed this to her when going through a period of depression.

When confronted with the statement she had made earlier to the police, however she remembers that she had spoken about this with her sister in 1980 and that in actual fact that was when she had learned from her daughter that she had been abused by the accused. [ 29 ] She also affirms that she had spent the summer of 1975 at the cottage in city A after the birth of her second daughter in June. Without being able to confirm if her parents looked after Y during that summer, she states that she regularly visited them with her children.

Moreover, she recalls that, at that time, her brother X and several other brothers and sisters were still living in her parents’ home in city A. She also recalls that her brother X worked on the family farm as well as in city B, but could not specify the exact dates.

[ 30 ] B, Z’s mother and another older sister of the accused, moved out of the family home before her brother X in the early 1960s. She confirms that her twin brothers C and X often dressed alike but does not know until what age. Like her sisters, however, she was always able to tell her twin brothers apart since her brother X’s face had a more derisive expression, and his words were sometimes more threatening. [ 31 ] She is able to confirm that a dispute involving her brother X took place during the 1984 Christmas Eve dinner. She knows that her daughter spoke to X’s wife about the sexual abuse suffered by Z.

She provides few details about her involvement in this conversation, however, and how she learned about it. Despite having very little contact with her brother X, she did receive a phone call from him in October 2010 telling her that she was a liar and arrogantly claiming that it was C who had abused her daughter. [ 32 ] Finally, questioned about an alleged meeting between the four sisters in summer 2009, she replies that she had no memory of such a meeting and that, in her opinion, such a meeting never took place. [ 33 ] Mrs.

H, sister of the accused and mother of D, testifies that she left the family home in 1963. She never confused her twin brothers since their voices, their laughter, and their facial features were different. [ 34 ] Her relationship with her accused brother has deteriorated greatly since the dispute concerning the settlement of her father’s estate in 2001, to the point that she has not spoken to him since that time.

Under cross-examination, she admits having met with her sisters A, B and I in summer 2009, but specifies that this was simply a friendly meeting of sisters and had nothing to do with plotting against the accused. [ 35 ] To rebut the accused’s alibi defence, the prosecution called as part of its case-in-chief three former employees of sawmill A, located in city B [in region B], where the accused had also worked. [ 36 ] One of them, J, reports the circumstances surrounding the hiring of the accused by the sawmill.

According to him, the accused was hired in spring 1978 and worked there for about a year and half to two years. He added that, during that time, the accused boarded with him and his parents. [ 37 ] Questioned about the accused’s visits [to region A], the witness initially answers that he did not believe the accused had returned [to region A] before Christmas 1978. Confronted with his earlier statement, he confirms having said that the accused did in fact return [to region A] once or twice with K, another sawmill employee. Moreover, he admits that the contents of his statement are true.

Despite his answers during examination-in-chief, he affirms under cross-examination that the accused had returned [to region A] just once before Christmas 1978. After Christmas 1978, the accused, now the owner of a vehicle, visited his family [in Region A] about every two months. [ 38 ] L, another former employee of the sawmill in city B, worked there from September or October 1979 to spring 1980 and also boarded with J’s parents.

He also worked with his brother M and states that the accused did not work at the sawmill while he was there. [ 39 ] The accused denies being the perpetrator of the assaults with which he is charged. Cross-examination of witnesses and defence evidence indicate collusion between the complainants and their mothers and suggest that the twin brother of the accused could have committed the offences.

The accused also raises an alibi defence regarding his presence in city A at the time of the alleged abuse of Z. [ 40 ] In support of his defence, the accused called his wife, N. [ 41 ] In her testimony, his wife states that she began dating the accused on Saint-Jean-Baptiste day in 1978. They married in 1980. She testifies to the strong resemblance between the accused and his twin brother. She even admits that the two brothers had played a trick on her by pretending to be each other.

She had been completely fooled. [ 42 ] She also recalled that in August 1978 there had been a serious argument between the accused and his father, so she had asked her parents if the accused could live with them in city C. They agreed, and the accused lived in their family home until he left to work in city B in September 1978. Although the conflict between the accused and his father was resolved some three weeks later, she states that the accused did not return to his home in city A between August and his departure for city B. Moreover, she did not see the accused again until Christmas that year.

Until then, they communicated by mail. A few envelopes were filed in evidence as proof of that correspondence. [ 43 ] In December 1978, the accused purchased a Dodge Charger automobile with his brother O and returned to city D to take his driving test to obtain a driver’s license, but N did not see the accused at that time. She did not see him until the holiday period near the end of December 1978.

The accused went to pick her up in city C and they went to city A together, where they spent the entire holiday period at the home of the accused’s parents. [ 44 ] After the 1978 holiday period, they saw each other every two weeks or once a month. Without being able to prove her statement, she declares that, during those visits [to Region A], the accused never went without her to the family home in city A. [ 45 ] She states that the Christmas party dispute involving her husband occurred in 1985. She denies having a conversation with Z about allegations of sexual abuse.

She states, on the contrary, that the argument erupted after the accused took his brother G’s tractor without his permission. Since she doesn’t like conflict, she decided to return home on foot, despite the cold, with her two young daughters, including a two-year-old who was barely walking. At the time, she and her husband lived with their two children about five minutes on foot from the location of the party.

She learned later that her husband had been taken to hospital after receiving a blow to the chin requiring stitches. [ 46 ] According to N, Y and Z must have been influenced to accuse her husband in that way. During the years following the alleged assaults, Y and Z had nevertheless remained on good terms with her and her husband. Questioned about this assertion, she admits that she had formed this opinion after reading all of the witness statements.

[ 47 ] She states that, in 1991, Y even attended a dinner that she and her husband had organized for their cousins, nephews, and nieces. She adds that, on another occasion, she and her husband had been invited to attend a party to demonstrate erotic products organized by Y. They had not received a personal invitation to that event, however, but rather an invitation through a phone tree. [ 48 ] C, the twin brother of the accused, first testifies to the striking resemblance between himself and his twin brother.

Family members, including his parents and the daughters of the accused, and their teachers frequently mistook them for each other. He recalls that, in cahoots with his twin brother, he once played a trick on N by pretending to be the accused. [ 49 ] For his part, he lived in the family home until 1979, whereas the accused left in August 1978 to live in city B. [ 50 ] As for hunting, he affirms that he went hunting only once, and that was with his brothers O, G and X. He adds that, at the time, his family had just one firearm.

As for the hunting camp, it was not built until between 1985 and 1987. [ 51 ] He admits that, because of the tense relationships between his sisters and the accused, he is testifying on behalf of his twin brother because he had to choose sides in these proceedings. Indeed he feared that the charges, in particular those concerning D, would now be directed against him since he is the twin brother of the accused.

No other questions were put to him regarding his possible involvement in the alleged assaults against Y and Z. [ 52 ] In conclusion, he states that during summer 2010 he learned from the husband of his sister B that his sisters were meeting to prepare for this hearing. Having heard the word “conspiracy”, he concluded that they were conspiring against the accused. [ 53 ] For his part, the accused testifies that he could not be guilty of the abuse against Z with which he is charged. On the one hand, he denies having gone hunting with Z, F and his brother E.

On the other hand, only O had a firearm, which he did not use for hunting since he did not hunt during the 1970s. [ 54 ] As for his alibi, like his wife, he testifies to the dispute with his father in August 1978, which caused him to seek refuge with the family of his wife N. With regard to the question of his employment in city B, the accused believes he began working at sawmill A on September 10, 1978. Between that time and the Christmas holidays, he returned to the region just once, on December 7 or 8, for the test to obtain his driving license in city D. He stated that his appointment was at 9 a.m.

When he arrived in city D, he borrowed his brother G’s car in preparation for his practical driving test. He adds that after the formalities related to obtaining his driver’s license, he had a few beers with his brother G and a man named P, then took the 3 p.m. bus back to city B. He thus never stopped by his parents’ home in city A that day. [ 55 ] On December 20, he returned to the region for the Christmas holidays. Upon his arrival, he stopped in city A to take possession of the new vehicle he had purchased from his brother. He remained in city A just 30 minutes, then went to pick up N in city C.

Throughout the entire holiday period, he and N were always together. In 1979, now the owner of a vehicle, he returned [to region A] every two weeks. During each visit, he stopped to pick up his spouse in city C before going to visit his family in city A. [ 56 ] With regard to the Christmas dispute, he also stated that it took place in 1985, and his medical record supports that claim. That evening, in a state of intoxication, he had taken his brother G’s tractor without his permission. A dispute ensued, during which he was hit in the face with a shovel. An ambulance had been called.

The question of sexual abuse had thus never arisen. [ 57 ] He denies having abused his nieces. He does not understand since, afterwards, Z and Y continued to be polite to him for several years. He was even invited to Y’s wedding and, to prove this, he filed a photo of the bride with him and his twin brother. One of his nieces would even stop by his home to say hello.

He insisted that, on one occasion, in the mid-1990s, he and his wife attended a demonstration of erotic products at the home of his niece Y. [ 58 ] He maintains that, in 2003, Y told him that she remembered having been abused but was not sure whether the abuser had been him or C. He had been stunned by this news but did not think it was wise at that time to confront his brother C. He nevertheless admits having reported this to him in 2008, when the police complaint was filed. Since C said nothing to him about it, he did not ask him any additional questions regarding his possible involvement in the assaults.

He declares nevertheless that this is a case of mistaken identify, and, in the case of the abuse involving D, he knows that his brother C is the culprit. [ 59 ] Finally, he admits to having sent e-mails to his sister A with the goal of harassing her because of the conspiracy that she and her sisters had hatched against him. With regard to the telephone messages left on his sister B’s answering machine, he admits to having called her a liar and to have said that the situation was about to change since it was C who was responsible for the acts he was charged with.

ADMISSIBILITY OF SIMILAR FACT EVIDENCE [ 60 ] The prosecution argues that the purpose of similar fact evidence is to rebut the accused’s defence relating to identification. Primarily, this evidence aims to enhance the credibility of the complainants, specifically with regard to the identification of the accused. [ 61 ] For his part, counsel for the accused argues collusion between the complainants. He also argues that the great probative value of the alibi defence renders the similar fact evidence moot since there is no longer a need to corroborate the allegations of each complainant.

In that sense, counsel for the defence argues that the probative value does not outweigh the prejudice likely to be caused to his client. [ 62 ] It has long been recognized that, in general, evidence intended to prove that the accused has the propensity or predisposition to do the type of acts charged is inadmissible in evidence. In that sense, similar fact evidence is presumptively inadmissible. [2]

[ 63 ] Similar fact evidence that relies on the improbability of coincidence is admissible if the probative value outweighs the prejudicial effect. The onus is thus on the prosecution to show on a balance of probabilities the admissibility of similar fact evidence. [3] [ 64 ] Two types of prejudice are likely to result from this kind of evidence.

There is reasoning prejudice, or the danger that the trier of fact might be confused by the cumulative force of multiple allegations and be unable to accomplish its primary task of deciding carefully each charge one by one. [4] Moral prejudice, on the other hand, is more properly the risk of an unfocussed trial, or the inference of guilt from general disposition or propensity. [ 65 ] The probative value of similar fact evidence arises from the degree of similarity between the facts and the alleged offences. The degree of similarity required depends on the purpose for which the evidence is adduced.

Thus, similar fact evidence that tends to establish the identity of the abuser must show a high degree of similarity, i.e., the acts in question must reveal a “striking similarity” that makes coincidence improbable. [5] In addition, the similar fact evidence presented to bolster the credibility of the complainants requires a lower degree of similarity. [6] [ 66 ] In Handy , the Supreme Court urges caution when the similar evidence is connected with the notion of credibility: … Care must be taken not to allow too broad a gateway for the admission of propensity evidence or, as it is sometimes put, to allow it to bear too much of the burden of the Crown’s case (Sopinka, Lederman and Bryant, supra , at § 11.26).

Credibility is an issue that pervades most trials, and at its broadest may amount to a decision on guilt or innocence . Anything that blackens the character of an accused may, as a by-product, enhance the credibility of a complainant. Identification of credibility as the “issue in question” may, unless circumscribed, risk the admission of evidence of nothing more than general disposition (“bad personhood” ). [7] [ 67 ] Moreover, the case law requires evidence that connects the accused to the offences presented as similar facts.

In that sense, the evidence must obviously show that the similar acts to be relied upon were in fact the acts of the accused and not those of another. [8] [ 68 ] Finally, collusion is a crucial factor because it undermines the very foundation that the similar facts are not due to coincidence. The collusion must be based on evidence of concoction or collaboration, not simply contact. [9] [ 69 ] In this case, it is important to note that the allegation of collusion raised by counsel for the accused is not supported by the evidence.

In fact, nothing in the evidence suggests that the complainants, with or without their mothers’ help, cooperated to unjustly harass the accused. The fact that the complainants may have had contact with each other is not enough to give credibility to the defence theory. In addition, C’s testimony regarding the supposed conspiracy against the accused is far from being convincing, especially since it in no way involved the complainants. [ 70 ] In this case, the principal issues relate to credibility and identification.

In fact, these two issues are in many ways interrelated. [ 71 ] The prosecution asks the Court to admit similar fact evidence not to establish the identity of the accused, it says, but rather to rebut the defence of mistaken identity and the alibi. It is clear that the prosecution’s goal is the inference that the complainants are not mistaken when they both identify the accused as their abuser. With respect for the prosecution’s arguments, the Court is of the view that such evidence unquestionably aims at establishing identity.

Despite certain resemblances between the circumstances surrounding each of the offences, however we cannot speak here about distinctive features common to both assaults or about a signature allowing the Court to draw inferences in connection with the question of identification. [ 72 ] Simply put, admitting similar fact evidence with the purpose suggested by the prosecution would amount to allowing an inference regarding the identity of the accused without requiring a high degree of similarity between the acts in question. [ 73 ] There is more.

Whether the similar fact evidence relates to credibility or identity, the similarities between the identifying features of the accused reported by each of the complainants relate more to his character than to distinctive physical features. Y identifies the accused by his mean face and his disagreeable remarks whereas Z refers to the aggressiveness of the accused and the harshness of his words. To admit evidence based partially on similarities that refer to the “bad personhood” of the accused involves a serious risk of causing him moral prejudice, i.e., that he be found guilty because he is the “bad” uncle.

In that sense, the admission of this evidence would run the risk of confusing the Court, as trier of fact, in applying the rules of evidence concerning identification. [ 74 ] For these reasons, the Court is of the view that the prosecution has not established on a balance of probabilities that the probative value of these facts on the issue of identity or credibility outweighs its prejudicial effect.

APPLICABLE LAW [ 75 ] The prosecution has the burden of proving the guilt of the accused beyond any reasonable doubt. [ 76 ] The accused benefits from the presumption of innocence as long as the prosecution has not met its burden. [ 77 ] Faced with conflicting testimony, the Court must apply the model of analysis suggested by the Supreme Court in R.v.W. (D.) [10] [ 78 ] First, if the Court believes the evidence of the accused, it must acquit. [ 79 ] If it does not believe the testimony of the accused, it must ask itself whether, when analyzed in conjunction with elements of the other defence evidence, it raises a reasonable doubt.

If so, it must acquit. [ 80 ] Otherwise, the Court must ask itself whether, after analysis of all the evidence before it, the prosecution has proved the guilt of the accused on all counts beyond a reasonable doubt.

[ 81 ] Alibi defence is evidence as to the impossibility that the accused could have committed the crime charged because he was elsewhere at the time it was committed. In that sense, this defence must be conclusive as to the innocence or guilt of the accused. [11] [ 82 ] Alibi defence need only raise a reasonable doubt.

If the Court rejects that defence, however, it must nevertheless ask itself whether the prosecution has proved beyond a reasonable doubt that it was the accused who committed the crime or crimes in question. [ 83 ] Since the ultimate goal of a hearing is the search for truth, the analysis of the credibility and reliability of the testimony heard by the Court is of great importance.

For this reason, it is up to the Court to assess the weight to give to testimony, considering in particular the plausibility of the statements made and the reliability of the memory of the witness as well as his or her observation skills. [12] [ 84 ] Since eliminating the rules of evidence governing the evidence of children, the Supreme Court has dealt several times with the way in which trial courts should analyze the testimony of young children. The Supreme Court affirms that the standard applicable to assessing the credibility of adult witnesses is not always appropriate for assessing that of young children.

When adults testify about events that occurred in their childhood, it appears that their credibility must be assessed according to criteria applicable to adult witnesses. Faced with contradictions concerning peripheral details, however, such as the time and place of the offence, the Court must take into account the age of the witness at the time of the events in question. [13] [ 85 ] The standard of proof is not lowered, however.

In this respect, in R.v.W. (R.) , McLachlin C.J. states this: As Wilson J. emphasized in B. (G.) , these changes in the way the courts look at the evidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases.

Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child . [14] [ 86 ] This leads the Court to deal with the law in respect of visual identification evidence.

The case law on this point is well established: The Court must be cautious, especially when the evidence relies mainly on the testimony of a single witness. [15] The Court must also consider both the strengths and the weaknesses of the identification evidence, by analyzing its objective reliability. [16] [ 87 ] The time between the event and the identification can affect the evidentiary weight of the evidence. [17] Finally, the higher courts point out that these warnings are even more applicable when the identification evidence is contradicted by evidence of incapacity or alibi evidence. [ 88 ] Even if the victim knows the abuser, the prosecution has the burden of presenting reliable and complete identification evidence since this is an essential component of the offence.

This is all the more true if there is a risk of confusing the accused with another person. [ 89 ] These are the legal principles that must guide the Court in this case. APPLICATION TO THIS CASE [ 90 ] Does the Court believe the accused? [ 91 ] The accused denies having abused his nieces and is quick to contradict almost all incriminating evidence in great detail.

The Court must analyze his testimony and assess his truthfulness, the plausibility of his statements and the similarities and discrepancies with the evidence as a whole. [ 92 ] As for the minute details of his comings and goings between city B and [region A] in the fall of 1978, the Court places no reliance on his statements. In fact, the multitude of details renders this part of his testimony quite simply implausible. With no specific reference point, the accused asserts that he began working at sawmill A on September 10, 1978.

Moreover, he is able to affirm within a day or two the exact date and time of the driving test he took thirty years ago. He even remembers the first name of the individual with whom he and his brother drank a few beers before his return to city B by bus at 3 p.m. While obtaining a driving license can be a significant event in a young man’s life, it is at the very least doubtful that he could remember dates and times without any other point of reference. [ 93 ] The accused adds that his return [to Region A] for the Christmas 2008 holiday period took place on December 20.

He even specifies that he stayed only thirty minutes in his parents’ home in city A before going to pick up his spouse in city C. Here again, the Court finds the phenomenal memory of the accused more than a little suspicious. [ 94 ] Despite the questionable precision of the facts supporting the accused’s alibi, the Court considers that it is not impossible that the accused was in the family home at the time of the assault against Z, which took place between January 1, 1978, and December 31, 1979. By his own admission, the accused visited his parents during 1979.

In that sense, we cannot conclude that it was impossible for the accused to have committed the assault against Z. [ 95 ] With regard to the family dispute during Christmas 1985, his explanation of the cause of the argument is to say the least questionable. This was a dispute that became so violent that the accused received a blow to the face requiring hospitalization and leaving scars that are still visible today. According to the accused, the dispute broke out simply because he borrowed his brother’s tractor without his permission.

In the Court's opinion, it is not plausible that a dispute over such a minor matter could have gotten so out of hand, especially since the testimony of the accused does not at all coincide with the evidence as a whole on this subject. [ 96 ] The reaction of the accused when he says that his niece Y claimed to have been abused by either him or his brother is to say the least astonishing. He denies having committed the abuse, yet he did not proclaim his innocence to his niece and did not confront his brother C about his niece’s claims.

Instead, he waited until 2008, when the police complaint was made, to speak to his brother. In view of

the silence of his brother, he was not sufficiently curious to ask him whether by any chance he had abused their niece. Yet he had just learned that he was being investigated for a crime that he says he did not commit. [ 97 ] So many implausibilities in the testimony of the accused make it impossible for the Court to believe him when he altogether denies the charges. [ 98 ] However, even if the Court does not believe the accused, does the evidence presented by the other defence witnesses raise a reasonable doubt?

The answer is no, for the following reasons. [ 99 ] The Court having concluded that the accused’s alibi defence is not really a defence, the testimony of his spouse enlightens it very little about the real Issues in dispute here. [ 100 ] It is nevertheless important to stress that the credibility and reliability of her statements are strongly shaken by the fact that she had read the statements of each of the witnesses before giving evidence in Court. By her own admission, she formed an opinion concerning certain parts of the evidence after reading those statements.

The contents of her testimony were thus tainted by her prior knowledge of the witness statements. When witnesses act in that way, they circumvent the orders excluding witnesses issued by the Court with a view to allowing all witnesses to give testimony based on their own memories. [ 101 ] It need only be said that her version of the family argument during Christmas 1985 does not appear credible.

It is at the very least surprising that N decided to leave the Christmas Eve supper, in the middle of the night, on foot, with her two children, one of whom was barely walking, following an argument about a tractor. [ 102 ] Moreover, her affirmation that the complainants maintained good relationships with her and her husband over the years does not cast a reasonable doubt. [ 103 ] The Court does not trust the testimony of the accused’s twin brother, who stated that he was testifying on his brother’s behalf because of the position he had taken in the family dispute between his brother and his sisters and nieces.

His testimony does not seem to have been inspired by his concern for telling the truth and, for that reason, the Court cannot accept his evidence, in particular with regard to hunting and firearms. [ 104 ] In short, the Court believes just one thing stated by the defence witnesses, since it observed it itself in a photo filed into evidence: the accused clearly resembles his twin brother. [ 105 ] Now it is time to determine whether the Crown has proved every essential element of the offence. [ 106 ] The Court first declares that the complainants have both testified with sincerity and honesty.

At no time did the Court observe that they had a vindictive attitude toward the accused or tried to exaggerate the facts surrounding the abuse they had suffered. In this respect, The Court concludes without hesitation that they really were victims of indecent assault. The remaining question is the quality and reliability of the identification evidence. [ 107 ] In assessing the identification evidence, the Court cannot ignore the fact that the accused has a twin brother and that the evidence reveals that they are identical twins.

The Court was able to see for itself the striking resemblance between the two brothers by looking at the photo taken with Y at the time of her marriage, when they were adults. [ 108 ] Y testified that she was sure it was the accused who abused her since he has a hard, mean face, and she associated him with the inappropriate remarks he was in the habit of making. She added that the accused is the uncle whom she did not like to see. She admits however that this association may have developed as a result of the abuse. [ 109 ] This evidence cannot be regarded as complete, reliable identification evidence.

On the one hand, it must be observed that evidence of a hard, mean face without other evidence of distinctive features cannot constitute convincing, irrefutable evidence that the accused is indeed her abuser. This evidence is all the more tenuous in that it is based only on character traits and not on distinctive physical features. As for the statement that Y identified the accused with the uncle that she did not like to see, that is based only on a feeling that she had and there is no objective element to support it.

No other piece of circumstantial evidence supports Y’s testimony on the question of identification. [ 110 ] As for Z, she bases her conviction that she was abused by the accused on the fact that he has a hard face, compared to that of his twin brother, which is friendlier. Here again, the Court cannot characterize such evidence as objective.

To convict the accused on such evidence would be dangerous and would amount to basing its decision on character evidence. [ 111 ] The conversation that Z may have had with the wife of the accused during Christmas 1984 or 1985 is if no help to the Court in assessing the evidence. The Court must analyze the evidence identifying the accused at the time the offence was committed and not based on a belief that evolved, over the years, to the certainty that the accused was really the abuser. [ 112 ] As for F’s testimony, it cannot constitute reliable support for the testimony of Z.

Indeed the Court considers that his testimony is vague given his own admission that his memories of hunting as a child are rather hazy. This witness was too imprecise concerning the details surrounding the hunting expedition to which Z refers for the Court to be sure F and his uncle X were present at that event. [ 113 ] The Court notes that the two victims distinguished the twins solely on the basis of their soft or hard faces.

Could it be that the abuse was committed by the uncle with the soft face, who had a harder expression at the time he committed the crimes? [ 114 ] It is true that the testimony of the complainants was based on their childhood memories and that their powers of observation and memories surely differ from those of an adult. In analyzing their credibility, the Court must take this into account. However, we are not concerned here with peripheral details, but with the identification of their abuser. The Court cannot ignore the fact that their identification evidence was rather fragile and even incomplete.

[ 115 ] Finally, the twin brother testified in his brother’s defence and, ironically, the prosecution did not ask him a single question regarding the allegations of his brother, who pointed to him as potentially being the true abuser.

It was the prosecution’s prerogative to abstain from further exploring that avenue, but the Court can only note its failure in connection with the identification evidence. [ 116 ] After rigorous analysis of the evidence submitted, the Court concludes that the prosecution failed to meet its statutory obligation to prove beyond a reasonable doubt that Mr X is guilty of the crimes with which he is charged. Indeed, although the evidence is significant, there is no evidence allowing us to identify the true culprit.

It is the Court’s responsibility to assess whether all of the evidence presented allows it to conclude beyond a reasonable doubt that the accused and no-one else is the true culprit. [ 117 ] After having heard all the evidence, the Court repeats that it has no doubt that the complainants really were victims of the crimes charged. Their sincerity is not in any doubt, although the passage of time since the events and their young age at that time could have slightly altered their memories of certain details. [ 118 ] I also consider that certain elements of the evidence point to the guilt of the accused.

The state of our law in criminal matters requires more than that, however, and prohibits the Court from returning a verdict of guilt unless it is convinced beyond a reasonable doubt. [ 119 ] In this case, The Court cannot ignore the existence of the accused’s identical twin brother, whose striking resemblance to the accused was mentioned many times during the trial.

This fact requires extreme caution on the part of the Court. [ 120 ] Consequently, and although the testimony of the victims is sincere and the evidence against the accused is considerable, the persistence of a reasonable doubt as to the identity of the abuser requires the Court to acquit. [ 121 ] FOR THESE REASONS , THE COURT: [ 122 ] ACQUITS the accused on all counts. ________________________________ NANCY McKENNA, J.C.Q.

Mtre Melanie France Tourigny Criminal and penal prosecuting attorney For the prosecution Mtre Claude Boulianne Martineau Daoust Boulianne Pelletier Avocats For the accused Hearing dates: December 7, 8, and 9, 2010