Court of Appeal of Quebec

Zakzuk Gaviria c. R.

Morissette, Levesque, Baudouin

Appeal from convictions. Allowed; a new trial is ordered.

The appellant was convicted on counts of sexual interference and sexual assault against a child who attended the daycare he operated with his spouse. The daycare was located in the basement of their home and was not directly connected by the inside to the dwelling on the ground floor. At trial, the defence argued that it was impossible for the appellant to have been the only adult in the daycare for a long enough time to commit the offences. His spouse testified in this regard. The appellant argues that the trial judge erred in failing to justify her conclusion on the contradictions in the complainant’s testimony and in rejecting his spouse’s testimony.

A few times during the two video examinations, it is impossible to clearly discern the complainant’s answers. However, several pieces of evidence allowed the judge to prefer the prosecution’s interpretation to that of the defence. The appellant’s criticisms concern mostly the credibility and reliability of the testimonial evidence and the judge’s overall assessment of the evidence. It was up to her to make these determinations, and the appellant has not established any specific, clearly identified error that would justify appellate intervention.

The second aspect of the appeal concerns the contradiction between the testimony of the appellant’s spouse and the prior inconsistent statements she allegedly made during the police investigation. The notes taken at that time were not adduced into evidence, and the police officer who recorded them did not testify. The distinction between [translation] “upstairs” and [translation] “downstairs” in the building, and the presence of the appellant [translation] “downstairs”, with or without his spouse at various moments throughout the day, were elements that were central to the case. During cross-examination, the prosecution referred to times when the spouse was [translation] “upstairs” or outside the daycare during operating hours. However, the people who observed these facts did not testify, even though it was not a collateral fact.

The police officer’s notes on which the prosecutor based her questions are hearsay. To rely on the statement, assess the nature of the contradiction alleged against the witness, and draw inferences on her credibility, the officer would have had to testify. Evidence of the prior statement was necessary in the circumstances because, according to the spouse, nothing she told the police officers supported the prosecution’s theory. The judge corroborated her assessment of the credibility of the appellant’s spouse by invoking facts that were not in evidence. The statements made by the prosecutor during cross-examination are in no way proof of the facts described. In the absence of evidence supporting the judge’s conclusion on the witness’s credibility, the presumption of innocence requires a correction. In rejecting the testimony of the appellant’s spouse on the basis of information that had not been validly entered into evidence, the judge distorted the perspective from which she had to rule on the credibility of this witness. This compromises the verdict she rendered.

Text of the decision:

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