Court of Appeal of Quebec

J.L. c. R.

Pelletier, Marcotte, Rancourt

Appeal from a conviction. Dismissed. Application for leave to appeal from the sentence. Granted. Appeal from the sentence. Dismissed. Appeal from an acquittal. Allowed; new trial ordered.

The trial judge convicted the accused of sexual assault and acquitted him of the counts of criminal harassment. The accused appeals from the conviction and seeks leave to appeal from the 14-month prison sentence ordered on that count. The prosecution appeals from the acquittal on the charges of criminal harassment.

The argument that the judge failed to address the accused’s credibility is rejected. The fact that few reasons were devoted to the accused’s version of the sexual assault is only a reflection of the limited content of his testimony because he limited himself to merely denying the event in general. The fact that the judge did not expressly state that he did not believe the accused does not constitute an error and does not render his reasons insufficient because a reading of the judgment as a whole reveals that he assessed the accused’s credibility in the overall context of the case.

As for the sentence imposed on the count of sexual assault, the burden of proof to show an aggravating factor depends on whether the facts are disputed. Section 724(3)(e) of the Criminal Code (R.S.C. 1985, c. C-46) (Cr.C.), which imposes a burden beyond a reasonable doubt, applies only where the facts that constitute the aggravating factor are disputed. Accordingly, judges may infer aggravating factors from uncontested facts established beyond a reasonable doubt before them. In this case, the judge did not err by inferring from the evidence that the accused had not come to realize the consequences of the acts alleged against him or the ensuing risk of reoffending. Finally, although the sentence is severe, the judge’s reasoning contains no palpable error or error of principle that could justify appellate intervention.

With respect to the acquittals on the counts of criminal harassment, confusion between the essential elements of the various acts prohibited under s. 264(2) Cr.C. may give rise to appellate intervention. The Criminal Code, however, does not provide a definition of the term "harassment" in connection with s. 264 Cr.C. R. c. Morrissette (C.A., 2020-11-11), 2020 QCCA 1482, SOQUIJ AZ-51721691, 2020EXP-2703, and Lamontagne c. R. (C.A., 1998-08-24), SOQUIJ AZ-98011679, J.E. 98-1953, propose a definition developed by the case law. The repetitive nature of the alleged act must be proved if it falls under ss. 264(2)(a) or 264(2)(b) Cr.C., but not under ss. 264(2)(c) and 264(2)(d) Cr.C., which require no such repetition. Therefore, the judge did not err by ruling that evidence of repetition was necessary with respect to the first two paragraphs. However, the alleged acts, when examined in the overall context of conjugal violence at issue, constitute threatening conduct likely to cause the complainants to reasonably fear for their physical, psychological or emotional safety within the meaning of s. 264(2)(d) Cr.C., subject to the essential elements of the offence, stated in Lamontagne, being proved.

In this case, in assessing whether the essential elements of the offence of criminal harassment were present, the judge’s conclusion that the complainants felt no fear or threat appears to arise from stereotypes of the [translation] "expected victim" in conjugal violence matters. These stereotypes cannot be used and vitiate his conclusion. Accordingly, the trial judgment contains an error of law arising from an assessment of the evidence based on a wrong principle, and this error requires the Court’s intervention with respect to the acquittals. Because the circumstances of the case do not lend themselves to substituting a conviction for the acquittals ordered, it is appropriate to order that a new trial be held on the counts of criminal harassment.

Legislation interpreted: s. 264 Cr.C.

Text of the decision:


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