R. v. Jacque, 2012 NLCA 71

Date: 20121114 Docket: 11/76 Citation: R. v. Jacque , 2012 NLCA 71

Section 486.4 of the Criminal Code respecting the non-publication of the identify of a complainant or of a witness and any information from which they might be identified applies to this judgment. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : HERBERT JACQUE APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Welsh, Rowe and Harrington JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador Judicial Centre of Happy Valley-Goose Bay Appeal Heard: November 7, 2012 Judgment Rendered: November 14, 2012 Reasons for Judgment by Rowe J.A.

Concurred in by Welsh and Harrington JJ.A. Counsel for the Appellant: Self Represented Counsel for the Respondent: Sheldon Steeves

Rowe J.A.: [1] Herbert Jacque was convicted of sexual assault. He appeals that conviction. [2] The facts are in large measure not in dispute. The complainant, then 19 years old, was visiting the home of a female friend,where the latter lived with her family. Mr. Jacque, then 41 years old, was also a guest at the home. The complainant and Mr. Jacquewere acquaintances. Mr. Jacque, the complainant and the other adults were drinking in the evening. [3] The complainant went to bed, sharing a bed with her friend’s young daughter. Mr. Jacque continued drinking through thenight.

At around 7:00 a.m., he entered the bedroom where the complainant and the child were sleeping in the one bed. He ended up inbed beside the complainant, both of them naked. [4] The issue was consent. Mr. Jacque said that the complainant had consented; she said she had not. In the words of the trialjudge, “she denied that she wanted intimate contact with the accused.” [5] Key points in Mr. Jacque’s testimony were set out by the trial judge: 30. [Mr. Jacque] left the kitchen to go to the bathroom, and said “the next thing I recall is being in bed” in the bedroom where thecomplainant and a child were sleeping.

He recalls that he and the complainant … were taking their clothes off. He said he “was in bedthen, he does not recall how [he] got there”, he “does not recall getting in bed, but [he] got there”. He testified that [the complainant]took her own clothes off, but he does not recall what else she wore. He believes “she pushed her underwear off with her foot” orsomething like that. He recalls he had only his underwear on and kicked them off under the blankets. 31. The accused said that he was up over [the complainant] when the male host came into the room. The accused got up and beganlooking for clothes.

He did not find his own underwear but did find [the complainant’s] underwear and put it on. He said that at thatpoint he was still drunk. The male host asked him what was going on, and he said that he and [the complainant] were about to have sexwhen the male host walked into the bedroom. He said no words were exchanged between him and [the complainant] as they just tooktheir clothes off. He was not in the room long, but merely minutes, before he heard the male host at the door. He said that [thecomplainant] had spread her legs and he was “over top of her”. 32.

On cross-examination the accused said he did not recall how much he drank, but he did drink all night from 7 p.m. to 7 or 7:30a.m. and was “pretty drunk” when he went to bed. He said that [the complainant’s] eyes were open when he got into the bed and that shewas awake. He described himself as being “pretty close” to [the complainant], as he had stayed in the past at the home where she andher boyfriend lived. He testified that before they went to bed, they were “pretty flirty”, mostly by body language, such as “the way sheleaned over [him]”. He does not recall what she said at those times.

There was no plan that he could recall for him to meet her in bed. He said that he did not recall how he knew she wanted to have sex with him. [6] The trial judge set out and applied the test in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742. He did not believe Mr.Jacque’s testimony, nor did Mr. Jacque’s evidence raise a reasonable doubt. He believed the testimony of the complainant. On theevidence overall, the trial judge was persuaded beyond a reasonable doubt that the complainant had not consented and that Mr.

Jacquehad committed the offence. [7] In his written Notice of Appeal and in his submissions to this Court, Mr. Jacque (who represented himself on the appeal) madefive points: (1) he was “convicted without any evidence”; (2) none of his DNA was found on the complainant’s clothes; (3) “no witness testified saying anything [except] that he saw us there”; (4) “I did not touch her and I never said that I touched her”; and (5) he was convicted “on just a he-said, she-said matter”. [8] Regarding “conviction without evidence”, this is clearly not the case. Mr.

Jacque admitted to being in bed naked with thecomplainant and that they were about to have sex when the host opened the door to the room. If the complainant had not consented, thenMr. Jacque was guilty of sexual assault. The complainant’s evidence that she had not consented was believed by the trial judge; Mr.Jacque’s evidence that she had done so was not believed by the trial judge, nor did it give rise to a reasonable doubt. [9] Regarding the absence of Mr. Jacque’s DNA on the complainant’s clothing (he ended up putting on her panties after thecomplainant fled the bedroom), this is of no consequence.

It was not alleged that intercourse had taken place. (Reality and televisiondiffer; DNA evidence is often not needed to obtain a conviction.) [10] Regarding “no witness testified saying anything [except] that he saw us there”, this is a reference to what the host saw when heopened the door to the bedroom. This evidence confirmed what Mr. Jacque admitted in his testimony, that he was touching thecomplainant in a way that would be a sexual assault unless the complainant had consented to the touching. [11] Regarding, “I did not touch her and I never said that I touched her”, it was not alleged that Mr.

Jacque had sexual intercoursewith the complainant. As noted above, by his own testimony, Mr. Jacque was touching the complainant for a sexual purpose; that is theessence of sexual assault (in the absence of consent).

[ 12 ] As to Mr. Jacque being convicted “on just a he-said, she-said matter”, that is very largely the case, as the key issue was consent, in which the testimony of the complainant and Mr. Jacque was contradictory. The trial judge carried out a thorough review of their testimony, in the context of other evidence, and set out a reasoned basis for believing the complainant, not believing Mr. Jacque, nor having a reasonable doubt raised by his testimony or other evidence.

Accordingly, there is no reason for this Court to interfere with the assessment of credibility or the findings of fact made by the trial judge. [ 13 ] The grounds of appeal raised by Mr. Jacque are without merit. His appeal against conviction is dismissed. ______________________________ M. H. Rowe J.A. I Concur: ____________________________ B. G. Welsh J.A. I Concur: ____________________________ M. F. Harrington J.A.