August 03, 2017
Duval Hesler, Levesque, Hogue
Appeal from a conviction. Allowed in part.
The appellant was convicted on four counts, including having uttered a threat to cause death or bodily harm to the complainant, Lise Normand, (count No. 2) and forcible confinement (count No. 4).
When she provided her additional reasons in the context of the proceedings seeking to have the appellant declared a dangerous offender, the judge stated that they were intended to clarify her thoughts because after rereading her reasons in support of the conviction, she realized that she had not been as clear as she would have liked to be. A reasonable person might be concerned that the judge’s additional reasons constitute an a posteriori justification for the conviction. They will not be taken into account for the purposes of this appeal.
It appears that the trial judge was of the view that in light of the appellant’s incriminating testimony, she was not required to rule on the obvious contradictions between the testimony of the complainant and that of the person who was with her at the time of the events, Paillé. This constitutes an error of law. The evidence of forcible confinement must satisfy an objective test. Only the absence of consent is assessed subjectively. The trial judge accepted only the complainant’s testimony, without considering Paillé’s, although they had completely different perceptions of the facts. It is difficult to see how this constitutes evidence that satisfies the objective test. The testimony of Paillé, who was present during the events and who is a disinterested witness, would likely have affected the trial judge’s factual analysis had she considered it. This observation also applies to the count of uttering threats to cause death or bodily harm. In this regard, Paillé’s testimony that the appellant did not threaten the complainant and that she did not get the impression that the appellant was dangerous, warranted consideration. In short, a more thorough assessment of the evidence could have raised a reasonable doubt as to the appellant’s guilt on both counts, and a new trial should be ordered in this respect.
*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca
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