R. v. W., 2024 QCCA 121

Bédard c. R. 2024 QCCA 121 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-700009-226 (550-01-112234-192) DATE: January 30, 2024 CORAM: THE HONOURABLE MANON SAVARD, C.J.Q. PATRICK HEALY, J.A. LORI RENÉE WEITZMAN, J.A. GASTON BÉDARD APPELLANT – Accused v.

HIS MAJESTY THE KING RESPONDENT – Prosecutrix JUDGMENT WARNING : An order restricting publication was rendered in first instance under s. 486.4 Cr.C . directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way. [ 1 ] This is an appeal from a judgment rendered orally on October 7, 2021, by the Court of Québec, Criminal and Penal Division, District of Gatineau (the Honourable Gaston-Paul Langevin), finding the appellant guilty of sexual assault (s. 271a) Cr.C .). [ 2 ] The question at trial was whether the appellant touched the complainant’s breasts while she was in his home and then again touched her breasts and her buttocks while they were out for a run, as the complainant alleged. [ 3 ] The appellant is blind and deaf, and thus, as an avid runner, he relies on guides to accompany him on his runs outdoors and to participate in races.

The 17-year-old complainant was introduced to the appellant by her mother, who was planning to be a running guide for the appellant, and she offered to serve as a guide for him as well. [ 4 ] On June 28, 2017, the complainant met the appellant at his home. He told her that the cotton shirt she was wearing was unsuitable for a run on a hot day and offered her one of his running jerseys made of breathable material.

According to the complainant, the first sexual touching occurred when the appellant took off her T-shirt and touched her breasts under her sports bra, commenting that he had not seen a woman’s body in 10 years. [ 5 ] The complainant also testified that during their run, the appellant made several comments of a sexual nature, and asked her sexually explicit questions about her private life. She stated that he cupped her left breast with his hand and briefly touched her left buttock.

After the run, the complainant’s mother picked her up and they both testified that the complainant burst into tears once in the car. [ 6 ] The appellant denied that their conversation had any sexual content and that he touched the complainant’s breasts and buttocks. He also testified that if he did touch her, it was by accident, without any sexual connotation. *** [ 7 ] The judge followed the framework of analysis as suggested by the Supreme Court of Canada in R. v.

W.(D.) . [1] He explained why he did not believe the appellant’s claim of an accidental touching, nor his denial of sexual contact with the complainant and found that his testimony did not raise a reasonable doubt. A review of all the evidence led him to the conclusion that the charge was proved beyond reasonable doubt. *** [ 8 ] In his first ground of appeal, the appellant raises what is commonly referred to as a Lohrer error, in reference to the Supreme Court decision in R. v. Lohrer [2] and submits that the conviction rests on the judge’s misapprehension of the evidence.

The test for establishing such an error is stringent. It requires that the appellate court find that the judge was mistaken as to the substance of material

parts of the evidence and that those errors played an essential

part in the reasoning process resulting in conviction . [3] In such a case, the appellant is a victim of a miscarriage of justice as he has not received a fair trial (s. 686(1)(a)(iii) Cr.C. ). [4] [ 9 ] When applying the Lohrer test, the appellate court will examine whether the alleged error, or errors, of substance were obvious. This should not require a minute parsing of every answer provided by a witness in order to glean inconsistencies and to determine whether the trial judge was alive to every aspect of them.

The appellate court must also examine whether it is manifest that the error affected the judge’s reasoning process. This was highlighted by the Supreme Court in R. v. Sinclair : [5] [53] […] The plain language or the thrust of the reasons must disclose an actual mistake. When such errors are in fact committed, appellate courts have no difficulty in explaining why they caused the trial judge’s reasoning process to be fatally flawed and where they may be found in the reasons.

In such situations, the errors are readily obvious. [ 10 ] The central error invoked by the appellant is that the judge mistakenly identified important discrepancies between the appellant’s testimony in chief and in cross-examination, leading him to conclude that the appellant was not a credible witness.

Specifically, he takes issue with the judge finding that he was “categoric” in examination in chief about not having touched the complainant, and that in cross- examination he “open[ed] the door” to the possibility that he might have touched the complainant’s bra while checking for her shirt’s suitability for running and might have touched her buttocks or her breasts, accidentally, while running. [ 11 ] The appellant is correct that the judge erred when he stated that the possibility of inadvertent touching was only mentioned for the first time in cross-examination.

Nevertheless, it was open to the judge to find that the appellant testified more “categorically” in examination in chief than in cross-examination. In addition, whereas in examination in chief, he mentioned that he possibly touched the complainant’s bra while he was “checking for meshes”, in cross-examination he admits that he did touch her bra, albeit “ briefly”.

There is no obvious error in the judge’s finding that the appellant’s explanation for a possible accidental touching is more elaborate in cross- examination. [ 12 ] Moreover, as to the effect of this finding on the reasoning process, the judge did not believe the appellant's denial, not only because he was less categorical in cross-examination than in chief, but also for other reasons which the judge explains. For example, he does not believe the appellant’s claim that he might have touched the complainant without realizing it.

In light of the appellant’s testimony that his hands are his eyes, helping him to navigate through life, and that he is especially cautious with women, to avoid touching them inappropriately, the judge does not believe that in these circumstances he touched the complainant’s breasts or buttocks accidently or without realizing it.

In addition, the judge did not believe the appellant's reasons for not contacting the complainant or her mother after the events. (Further discussion on this matter will be addressed below, when analysing the second ground of appeal). [ 13 ] The appellant submits that the judge committed another such error, in his

summary of the evidence. The appellant is correct that the judge erroneously stated that the appellant did not testify as to how the complainant took off her T-shirt nor whether he participated in that. On the contrary, the appellant specified that he was in another room when the complainant removed her t-shirt herself. Nevertheless, this is not an element that the judge relies on in determining that he did not believe the appellant and consequently it played no

part in the reasoning process. [ 14 ] Referring to specific extracts of his testimony, the appellant seeks to have this court reassess the judge’s credibility findings. Such is not the purview of appellate review. [6] Because it cannot be said that absent the errors alleged, the trial judge’s reasoning on which the conviction is based would be on unsteady ground, the claim of miscarriage of justice stemming from a misapprehension of the evidence must fail. [7] * * * [ 15 ] In his second ground of appeal, the appellant argues that the judge “erred in law in his use of the appellant’s after-the-fact conduct”.

He claims that the judge used stereotypical reasoning about the way disabled people normally behave and that this led to an impermissible inference of guilt based on the appellant’s post-offense conduct.

This argument stems from the judge’s conclusion that the appellant was not truthful when he testified that the reason that he never contacted the complainant or her mother after the run was because it was up to the guides to reach out to him. [ 16 ] Had the judge concluded that it was to be expected that a disabled runner, in need of assistance, would necessarily reach out to his guide after a run, and that the fact that the appellant did not do so showed his consciousness of guilt, this would have been an error, as this inference would not have been rationally and objectively grounded in the evidence. [8] But this flawed reasoning is not what the judge adopted here. [ 17 ] The judge does not resort to myths and stereotypes, nor does he generalize from the expected behaviour of someone in the appellant’s position.

Instead, he comes to a factual determination based on the evidence in this case. This includes the appellant’s testimony about the importance of running in his life, the difficulty of finding good running guides and his initial hope that this guide (the complainant) would be able to help him train for the New York Marathon.

The judge’s reasoning is also grounded in the appellant’s claim that nothing untoward occurred during their first run, which he described as a positive experience, and the evidence of many exchanges between the appellant and the complainant’s mother, prior to the events in question, which stopped immediately after. [ 18 ] It was for these reasons that the judge did not believe the appellant’s answer in cross-examination when asked about the absence of further communication with the complainant or her mother. [ 19 ] Having concluded that the judge did not resort to myths and stereotypes in determining that the appellant lied about the reason for not contacting the complainant, it follows that he did not err in drawing a negative inference regarding the appellant’s credibility, and this factual determination merits deference from an appellate court.

* * * [ 20 ] The third ground of appeal raises errors committed by the judge in his assessment of the complainant’s evidence, by failing to consider the reliability of her testimony, specifically regarding elements which the appellant deems implausible, and in relying too heavily on her demeanor to conclude that she was credible. [ 21 ] On the allegation of the judge’s failure to assess reliability, it is well established that using the terms credibility and reliability interchangeably is not an error in and of itself. [9] As well, trial judges do not have to relate each of the errors in the complainant’s evidence to the ultimate finding of credibility, nor answer each argument raised regarding alleged weaknesses in a witness’ testimony. [10] Here, the judge’s reasons, read as a whole, make it clear not only that he believed the complainant’s testimony, but why he did so. [11] They also indicate that he turned his mind to the factors that go to assessing both the credibility and the reliability of the complainant’s testimony.

He found that some of the contradictions her account could be explained by memory problems caused by the four years that had elapsed since the events in question.

He noted that the complainant provided many details about the events, and he referred to the testimony of both the complainant and her mother, who described her distress immediately after the run, as well as the fact that neither of them ever contacted the appellant again. [ 22 ] On the issue of demeanor evidence, the appellant alleges that the judge focused on the complainant’s manner of testifying instead of considering the quality of her evidence, thereby committing an error of law. [12] However, he does not identify anything specific in the judge’s reasons which could indicate exaggerated importance attached to the complainant’s demeanour, nor suggest that her demeanour was the dominant reason to find her testimony credible .

Whereas it is an error to rest credibility findings on demeanour alone, general references to the manner in which a witness testified as part of a judge’s explanation for why that witness was, or was not, believed is not, in and of itself, a reversible error. [13] [ 23 ] It is not for this Court to reconsider the evidence and interpret it differently from the trial judge which is, in essence, what the appellant asks us to do. In sum, the complainant’s version, which the judge believed beyond reasonable doubt, establishes that the appellant touched her, and that this was done wilfully.

The grounds raised do not merit appellate intervention. FOR THESE REASONS, THE COURT : [ 24 ] DISMISSES the appeal. MANON SAVARD, C.J.Q. PATRICK HEALY, J.A. LORI RENÉE WEITZMAN, J.A. Mtre Mairi Springate For the Appellant Mtre Isabelle Michaud Director of criminal and penal prosecutions For the Respondent Date of hearing: December 14, 2023