Bich, Beaupré, Cournoyer

Appeals from convictions. Allowed. A new trial is ordered.

The appellant appeals from a Court of Québec judgment finding him guilty on 10 of the 13 counts he was charged with, acquitting him on 1 count and ordering a conditional stay of proceedings on 2 counts. The charges are in connection with the accused’s alleged assault and sexual assault against his former spouse in 2007, and again in 2018 and 2019.

The assessment of the credibility of the witnesses and of the contradictory versions as wells as the reasons are especially significant because the trial concerned 12 separate events that occurred a long time ago. A criminal justice system that safeguards public confidence requires that litigants, and an accused in particular, have no doubt that the judge hearing the case has assessed the testimony and the credibility of the witnesses rigorously, impartially and free from any undue influence.

 In this case, however, the judgment does not meet those criteria. The reasons denote some confusion, compromising the ability to understand the judge’s reasoning. Indeed, in making his ruling, the judge unreservedly imported an excerpt from the prosecution’s written arguments on the appellant’s credibility. The judgment, therefore, does not provide the guarantee that the judge formed an independent opinion on the contradictions in the evidence or on the issue in dispute on each of the counts. Moreover, the judge’s reference to the appellant’s [translation] “behaviour” during his testimony is dubious.

In the face of contradictory versions for all the offences, the judge had to indicate, by means of a sufficient and comprehensible analysis, how he decided these versions rather than limiting himself to arbitrating a credibility contest. Moreover, he found the appellant guilty of threatening the complainant with a hammer based on an admission by the appellant that did not appear from the evidence. In addition, the judge’s decision to order a stay of proceedings on count 11 due to the guilty verdict on count 8 raises questions because the acts, despite occurring close together in time, are distinct.

Furthermore, the judgment does not include a presentation of the 3-factor analysis established in R. v.W.(D), (S.C. Can., 1991-03-28), SOQUIJ AZ-91111043, J.E. 91-603, [1991] 1 S.C.R. 742, despite all the contradictory testimony of the various witnesses, nor does it contain an analysis of the contradictions in the complainant’s testimony. The judge discussed some of these contradictions, but it was not clear how he interpreted them to the appellant’s detriment. Nor could he unfavourably analyze the appellant's credibility as part of his examination of the first count and thus determine the fate of his credibility for the purposes of the analysis of each of the other counts. In so doing, the judge appears to have placed the burden on the appellant of refuting the complainant's version of events.

Last, the judge noted certain aspects of the appellant's life that suggest that his reasoning was also fuelled by a certain negative bias about the appellant’s lifestyle and other things unrelated to the issues in dispute.

Text of the decision: http://citoyens.soquij.qc.ca