r v. X, 2022 QCCA 505

R. c. X 2022 QCCA 505 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-08-000185-206, 200-10-003743-205 (614-03-000227-183) (614-01-001507-173) DATE: April 8, 2022 CORAM: THE HONOURABLE MARIE-FRANCE BICH, J.A. JEAN BOUCHARD, J.A. SIMON RUEL, J.A. HER MAJESTY THE QUEEN APPELLANT – Prosecutor v. X RESPONDENT – Accused JUDGMENT WARNING Publication Ban (File no. 200-08-000185-206/614-03-000227-183) Order Restricting Disclosure of Witness’s Identity (File no. 200-10-003743-205/614-01-001507-173) 1.

File no. 200-08-000185-206/614-03-000227-183 : This file is subject to the Youth Criminal Justice Act and its various publications bans (arts. 110 and 111). Every person who contravenes these provisions is liable to criminal prosecution. 2. File no. 200-10-003743-205/614-01-001507-173 : This file is subject to an order of the trial judge banning the publication, broadcasting or disclosure of the identity of any victim or witness.

Every person who contravenes such order is liable to criminal prosecution. [ 1 ] The appellant appeals from a judgment rendered orally on 29 January 2020 by the Honourable Paul Chevalier of the Court of Quebec (Criminal and Penal Division), District of Abitibi, acquitting the respondent of various charges of sexual offences committed against three underage persons. [ 2 ] For the reasons of Bich J.A. with which Bouchard and Ruel JJ.A. agree, THE COURT: [ 3 ] ALLOWS the appeal; [ 4 ] QUASHES the judgment of acquittal in both files 200-10-003743-205/614-01-001507-173 and 200-08-000185-206/614-03- 000227-183; [ 5 ] ORDERS a new trial on all charges in the aforementioned files.

MARIE-FRANCE BICH, J.A.

JEAN BOUCHARD, J.A. SIMON RUEL, J.A. Mtre Geneviève Lamontagne DIRECTOR OF CRIMINAL AND PENAL PROSECUTORS For the appellant X Not represented (absent) Respondent Date of hearing: February 9, 2022 REASONS OF BICH, J.A. [ 6 ] The respondent was charged with various sexual offences against three minors (i.e. the two complainants, Y and Z, who are sisters, and A, their cousin). [1] The respondent himself is the complainants’ cousin and, as their older brother’s friend. was a frequent visitor to their house. [ 7 ] At trial, evidence was led by both parties.

On the prosecution side, the complainants testified, but A did not (she was involved in the matter through Z’s statement to the police). Y’s testimony was succinct: she recounted, in general terms, some of the offences committed against her by the respondent and declared that her more extensive statement to the police, as recorded, was true.

Z’s testimony was even shorter, as she essentially confirmed the veracity of her statement to the police, which had also been recorded and which described sexual wrongdoings by the respondent on her person and that of A. [2] Neither Y nor Z was cross-examined by defence counsel. The videotapes of their statements to the police were admitted into evidence pursuant to s. 715.1 Cr.C.

Finally, the police officer who arrested the respondent and interviewed him also testified. [ 8 ] The only defence witness was the respondent, who denied having committed the offences, except one, of which he claimed to have no memory. [ 9 ] Judgment was rendered orally, immediately after argument, without any pause. The transcript thereof reads as follows: BY THE COURT: I’m supposed to start by analysing the version of the Accused, but once again, this analysis must be made with the whole of the evidence. And if I look at the video and the testimony of Z, she would have been raped.

She would have had a complete sexual relation according to what she says, of the Accused putting his private

part in her private part, and she mentioned vagina. And I hardly can understand that Z would not have been having signs of huge trauma. A little girl of nine (9) years old being raped by a man who was twenty-three (23) or twenty-four (24) years old, I really have lots of difficulty to conceive that this could have happened and that no one would have noticed anything. So this raises a reasonable doubt in my mind.

And I understand it’s not easy for the kids to describe events that happened long before, for some of them, and it’s not because they cannot say exactly what date, what time it happened, who was present, that they don’t recall that a traumatic event might have happened that they cannot be believed.

I’m quite aware of that, but when I look at the whole of the evidence, it’s very possible that the sexual assaults were committed by the Accused who’s denying having done that; and when I look at the whole of the evidence, I cannot be convinced beyond a reasonable doubt that he committed the offences for which he was charged. I understand that the evidence is also versé filed in the youth file? BY THE DEFENCE: Yes.

BY THE COURT: So, in both files, the Accused is declared not guilty. Once again, not because I’m sure that he did not do that, but I’m not convinced by the whole of the evidence beyond a reasonable doubt of his guilt. Thank you. [ 10 ] It will not be necessary to discuss the manner in which the trial judge applied (or, rather, misapplied) the W.(D.) analytical framework [3] to which he alludes at the beginning of his judgment, nor to review his generic remarks on the credibility of child witnesses, which referred implicitly to the teachings of the Supreme Court in R. v. W. (R.) [4] and R. v.

B. (G.) [5] (but did not put them to use). Regardless of these questions, the judgment must indeed be quashed as (1) it relies on a stereotypical, prejudiced and fragmentary reading of the evidence, and (2) it singles out the testimony of one of the complainants in order to acquit the respondent of all charges against him, completely overlooking the testimony of the other complainant, and failing to address the situation of the third alleged victim.

Both are flagrant and fatal errors of law. * * [ 11 ] The trial judge discarded Z’s testimony on the sole basis of prejudices and stereotypes regarding what should have been the “normal” behaviour and reactions of the victim of a sexual offence (in the present case, a child) and that of their family or those around them.

The premise for the respondent’s acquittal, as it appears from the judgment, is essentially as follows: surely, had Z been the victim of such serious sexual assaults, she could not have kept it to herself and would have shown signs of trauma that people around her would have noticed. [ 12 ] This assertion blatantly ignores the individual experience of the complainant, disregards the evidence adduced at trial as well as the context in which the alleged offences took place, [6] and, furthermore, shows a complete lack of sensitivity to Indigenous issues and violence against Indigenous women and girls. [7] [ 13 ] Courts have strongly denounced such prejudices and stereotypes, the use of which constitutes an error of law.

For instance, in R. v. Barton , [8] in accordance with a long line of cases, [9] Moldaver J., writing for the majority of the Supreme Court of Canada, emphatically stressed that: [1] We live in a time where myths, stereotypes, and sexual violence against women [fn. omitted] — particularly Indigenous women and sex workers — are tragically common. Our society has yet to come to grips with just how deep-rooted these issues truly are and just how devastating their consequences can be.

Without a doubt, eliminating myths, stereotypes, and sexual violence against women is one of the more pressing challenges we face as a society. While serious efforts are being made by a range of actors to address and remedy these failings both within the criminal justice system and throughout Canadian society more broadly, this case attests to the fact that more needs to be done. Put simply, we can — and must — do better. [ 14 ] A year earlier, in R. v.

A.R.J.D. , [10] the Supreme Court had already reaffirmed that “[i]n considering the lack of evidence of the complainant’s avoidance of the appellant, the trial judge committed the very error he had earlier in his reasons instructed himself against: he judged the complainant’s credibility based solely on the correspondence between her behaviour and the expected behaviour of the stereotypical victim of sexual assault. This constituted an error of law”. [ 15 ] In Pierre v.

R. , [11] our Court wrote that “[i]t is undisputed that the assessment of evidence cannot be tainted by generalisations or stereotypes and if it is there is an error of law” [ref. omitted]. In Lemire-Tousignant v. R. , [12] the Court also stated that “ [l]a valeur probante d’un témoignage doit être appréciée sous l’éclairage de la preuve présentée au juge de première instance, et non à partir de présupposés et de stéréotypes ” and that “ [u]ne conclusion basée sur des préjugés ou des stéréotypes et non sur la preuve constitue une erreur de droit.

Cela est vrai tant pour les victimes que pour les accusés d’une agression sexuelle ” [ref. omitted]. In R. v. A.S. , [13] the trial judge, in order to assess the complainant’s credibility in a matter of sexual abuse committed while she was a child, [14] had relied, among other elements, on the fact that nobody had noticed anything.

The Court, for the reasons of Ruel J.A., refuted such reasoning: [29] Par ailleurs, certains des commentaires de la juge suggèrent une attitude stéréotypée en matière d’agressions sexuelles sur des enfants, particulièrement lorsqu’elle indique que « personne ne s’est aperçu de rien pendant plus de six (6) ans et que l’accusé a commis les actes sans ne jamais être inquiété ». [30] Comme le font remarquer les auteures Julie Desrosiers et Geneviève Beausoleil-Allard, « la délinquance sexuelle est une criminalité de l’intime, qui se déroule à l’abri du regard d’autrui et qui ne laisse pas nécessairement de traces ». [ref. omitted] [31] Il est de la nature même des agressions sexuelles sur des enfants qu’elles surviennent dans un contexte de dépendance ou de vulnérabilité face à un adulte.

Dans plusieurs cas, les abus sont perpétrés dans le cadre d’une relation de confiance ou d’autorité, impliquant un membre de la famille. [32] Compte tenu de leur jeune âge et du contexte de confiance, certaines victimes peuvent même en venir à croire que des comportements sexuels déviants perpétrés par des proches sont normaux ou acceptables, affectant ainsi leur capacité à dénoncer. [ref. omitted] [33] D’affirmer que « personne ne s’est aperçu de rien » pour juger de la crédibilité ou de la fiabilité d’une jeune plaignante qui se dit victime d’abus sexuels répétés par son beau-père constitue à mon avis un stéréotype qui ne peut être accepté dans des affaires portant sur des infractions sexuelles sur des enfants. [15] [ 16 ] Of course, as the Court of Appeal for Ontario recently wrote, “it is not an error to arrive at a factual conclusion that may logically

reflect a stereotype where that factual conclusion is not drawn from a stereotypical inference but is, instead, based on evidence”. [16] In the present case, however, there is no evidentiary basis for the judge’s findings concerning Z’s trauma or the reaction of those around her. [17] Rather, the judge’s statement that her story was not credible or left him with a reasonable doubt about the perpetration of the crimes she related was not grounded in evidence and was exclusively informed by the stereotypes on which he relied. [ 17 ] Consequently, these errors having had “a material bearing on the acquittal”, [18] but the conditions necessary to support a verdict of guilty not being met, [19] the judgment should be overturned in this respect and a new trial ordered on the charges relating to Z. * * [ 18 ] But there is more.

As mentioned earlier, the charges against the respondent as well as the trial itself did not pertain to Z only, but to two other alleged victims, Y and A. The judgment, however, is completely silent about them. As seen earlier, the judge did not believe Z, uttered a few inconsequential remarks on children's credibility in general and then dismissed all charges, including those related to Y and A. [ 19 ] It is true that A did not testify.

The only incriminating piece of evidence in her case is found in Z’s recorded statement to the police, in which she claimed to have witnessed the respondent’s inappropriate conduct towards A and described it summarily. This, however, does not explain the judge’s silence nor could it exempt him from his duty to rule on the matter and to set forth his reasoning.

One may perhaps surmise that the charge related to A was dismissed because of Z’s general lack of credibility in the eyes of the trial judge (Z having been the only one to testify about the offence against A), but such supposition raises another question, which I will address later (at para. [23], below). [ 20 ] The trial judge’ silence is even more incomprehensible in the case of Y, who did testify at trial and described sexual offences distinct from those allegedly committed against Z and A.

The judgment does not contain a single word on her testimony or her recorded statement to the police, does not assess or mention any of the relevant evidence and fails to articulate how credibility issues, which were central to the matter, were resolved. [20] Even in light of the generous, functional and contextual approach favoured by the Supreme Court [21] and even assuming, as instructed by that court, that trial judges in general – and this one in particular – know the law and apply it, one cannot understand how or why he ruled this way. [ 21 ] Of course, in R. v.

G.F. , after having reaffirmed the importance of trial reasons, Karakatsanis J. also made the following cautionary remarks: [70] This Court has also emphasized the importance of reviewing the record when assessing the sufficiency of a trial judge’s reasons. This is because “bad reasons” are not an independent ground of appeal. If the trial reasons do not explain the “what” and the “why”, but the answers to those questions are clear in the record, there will be no error: R.E.M. , at paras. 38-40 ; Sheppard , at paras. 46 and 55 . [71] The reasons must be both factually sufficient and legally sufficient.

Factual sufficiency is concerned with what the trial judge decided and why: Sheppard , at para. 55 . Factual sufficiency is ordinarily a very low bar, especially with the ability to review the record. Even if the trial judge expresses themselves poorly, an appellate court that understands the “what” and the “why” from the record may explain the factual basis of the finding to the aggrieved party: para. 52.

It will be a very rare case where neither the aggrieved party nor the appellate court can understand the factual basis of the trial judge’s findings: paras. 50 and 52. […] [76] Despite this Court’s clear guidance in the 19 years since Sheppard to review reasons functionally and contextually, we continue to encounter appellate court decisions that scrutinize the text of trial reasons in a search for error, particularly in sexual assault cases, where safe convictions after fair trials are being overturned not on the basis of legal error but on the basis of parsing imperfect or

summary expression on the part of the trial judge. Frequently, it is the findings of credibility that are challenged. [ 22 ] But we are not in the situation described in these paragraphs. This is indeed one of those “rare” cases where, even after reviewing the record as a whole and “in light of the live issues at trial”, [22] it is impossible to understand the factual or legal basis of the judgment with regards to two of the alleged victims, and certainly with regards to Y.

The judge’s answers to the “what” and “why”, in that respect, are inscrutable (unless they are also linked to the stereotypes used in Z’s case) and we cannot follow his chain of reasoning as he neglected to discuss the matter. There is no intelligible basis for the acquittal and no reason is given therefor, which compromises any appellate review within the narrow corridor of s. 676 Cr. C.

Such insufficiency, which cannot be excused by the constraints of oral judgments [23] and precludes meaningful appellate review, is an error of law [24] that justifies the Court overturning the respondent’s acquittal and ordering a new trial on the charges relating to Y and A. [ 23 ] Moreover, were the judge’s reasons in A and Y’s cases to rest implicitly on the evaluation of Z’s testimony, the result would be the same: the judge’s reasoning in Z’s case is entirely vitiated by a reviewable error of law (assessment of the complainant’s credibility on the basis of inappropriate stereotypes) and the foundation of his conclusions as to Y and A would therefore simply collapse. [ 24 ] Finally, needless to say, ignoring the evidence specific to Y (especially) and A, and thus failing to consider all of the evidence adduced at trial to decide the issue of guilt or innocence, is an aggravating error of law.

So is ascribing Z’s credibility to Y, without any perceivable reason, while the two testified to different and unrelated facts and criminal events. To paraphrase the Court of Appeal for Ontario in R. v. Aiken , [25] at a minimum, the judge had to engage with the evidence in respect of Y and A and explain why, despite that evidence, he had a reasonable doubt about the respondent’s acts.

Admittedly, the trial judge said at the outset of his judgment that he had to analyze the “whole of the evidence” [26] and, later, that “when I look at the whole of the evidence, I cannot be convinced beyond a reasonable doubt that he committed the offences…”, [27] but, as it obviously appears from the judgment itself, this “whole of the

evidence” related to Z only. Certainly, an acquittal may rest on the absence of proof, [28] but, in the present case, there was proof to be assessed, which the judge, by all appearances, did not consider (and if he did, he did not explain it adequately, i.e. in a manner that would have provided the opportunity for meaningful appellate review). [ 25 ] A new trial on the charges related to Y and A should thus be ordered. * * [ 26 ] Consequently, I propose that the judgment under appeal be quashed, the acquittal overturned, and a new trial ordered on all charges in both files. MARIE-FRANCE BICH, J.A.