R. v. R.P., 2012 SCC 22, [2012] 1 SCR 746

 

SUPREME COURT OF CANADA

 

Citation: R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746

Date: 20120511 Docket: 34038

 

Between:

Her Majesty The Queen

Appellant

and

R.P.

Respondent

 

 

Official English Translation:  Reasons of Deschamps J.

 

Coram: LeBel, Deschamps, Fish, Abella, Cromwell, Moldaver and Karakatsanis JJ.

 

Reasons for Judgment: (paras. 1 to 20):   Dissenting Reasons: (paras. 21 to 62):

Deschamps J. (Abella, Cromwell, Moldaver and Karakatsanis JJ. concurring)   Fish J. (LeBel J. concurring)

 

 

 

 

R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746

 

Her Majesty The Queen                                                                                 Appellant

v.

R.P.                                                                                                               Respondent

Indexed as:  R. v. R.P.

2012 SCC 22

File No.:  34038.

2011:  December 16; 2012:  May 11.

Present:  LeBel, Deschamps, Fish, Abella, Cromwell, Moldaver and Karakatsanis JJ.

on appeal from the court of appeal for quebec

                    Criminal law — Appeals — Power of court of appeal — Unreasonable verdict — Credibility of witnesses — Trial judge holding that testimonial evidence as whole did not raise reasonable doubt that accused guilty on charge of indecent assault with regard to incidents that had occurred more than 30 years earlier — Whether verdict unreasonable — Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1) (a)(i).

                    R.P. was convicted of indecently assaulting M.L., his sister‑in‑law.  The trial was held more than 30 years after the impugned acts.  According to M.L., the abuse had occurred when she went to babysit the children of her sister G.L. and R.P., and it had taken place in their residence on some occasions and in their car at other times when R.P. drove her home.  The trial judge did not believe R.P. and set out numerous reasons to explain why he considered M.L.’s testimony credible.  He accepted the police officers’ testimony and held that the prosecution had proved beyond a reasonable doubt that the offence had been committed.  The majority of the Court of Appeal held that the verdict was unreasonable in light of the evidence and entered an acquittal.  The dissenting judge found that the trial judge had made no palpable and overriding error in assessing the evidence and that the verdict was not unreasonable.

                    Held (LeBel and Fish JJ. dissenting): The appeal should be allowed and the conviction restored.

                    Per Deschamps, Abella, Cromwell, Moldaver and Karakatsanis JJ.:  To decide whether a verdict is unreasonable, an appellate court must determine whether the verdict is one that a properly instructed jury or a judge could have rendered.  A court of appeal that reviews a trial court’s assessments of credibility in order to determine, for example, whether the verdict is reasonable cannot interfere with those assessments unless it is established that they cannot be supported on any reasonable view of the evidence.

                    In this case, the verdict was one a judge could reasonably render, and the trial judge did not draw an inference or make a finding of fact that was plainly contradicted by the evidence or was incompatible with evidence that was not otherwise contradicted or rejected.  Furthermore, the trial judge’s assessment of the witnesses’ credibility was reasonable.  The trial judge did not disregard the flaws in M.L.’s testimony, nor did he err either in taking into account her age and the time elapsed since the incidents in question or in assessing G.L.’s testimony.

                    Per LeBel and Fish JJ. (dissenting):  Even when viewed through the mandatory lens of deference, the trial judge’s reasons do not resist scrutiny.  On the record, no trier of fact could reasonably conclude that R.P. is guilty beyond a reasonable doubt of the offence.  The trial judge’s finding that there was no inconsistency between the testimony of G.L. and M.L. was plainly incompatible with the Crown’s case, with the record as a whole and with M.L.’s own evidence.  In particular, an integral element of M.L.’s narrative was that R.P. sexually assaulted her while his wife was about to leave for the hospital to give birth and while she was in the hospital on those occasions.  G.L. testified, however, that M.L. had in fact not babysat on either of those occasions and, confronted with this, M.L. did not contradict G.L. M.L. confirmed as well G.L.’s evidence that G.L., when home, had an unobstructed view of the site of the alleged abuses.  Also, G.L.’s testimony that R.P. returned home before her very rarely was inconsistent with M.L.’s allegations of regular abuse.  The judge also ignored M.L.’s own evidence confirming important aspects of G.L.’s testimony tending to show that R.P. could not have assaulted M.L. as the latter alleged.  Finally, to the extent that the trial judge rejected or disregarded the testimony of G.L., he did so for unsustainable reasons.  He appears to have given no weight to the testimony because G.L. was too general, which is unsupported by the record, and because she was too precise, which contradicts the first reason.  While the judge found that G.L. had chosen to believe R.P. because he was her husband, he disregarded the fact that she was also closely related to M.L., her sister.  It was unacceptable to reject, on that ground, the evidence of the only person who could — other than the complainant or the accused — testify to the layout of the homes where the assaults were alleged to have occurred, to R.P.’s daily schedules and routines, and to the circumstances surrounding G.L. giving birth.

                    In reviewing the evidence in great detail, the majority of the Court of Appeal committed no error, as it was required to articulate as precisely as possible what features of the case support its conclusion that the verdict was unreasonable.

Cases Cited

By Deschamps J.

                    Applied:  R. v. Yebes, [1987] 2 S.C.R. 168; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190; R. v. Burke, [1996] 1 S.C.R. 474; referred to:  R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439.

By Fish J. (dissenting)

                    R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. Yebes, [1987] 2 S.C.R. 168; R. v. W. (R.), [1992] 2 S.C.R. 122; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1970, c. C‑34, s. 149.

Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1) (a)(i).

                    APPEAL from a judgment of the Quebec Court of Appeal (Thibault, Pelletier and Gagnon JJ.A.), 2010 QCCA 2237, SOQUIJ AZ-50698321, [2010] Q.J. No. 13165 (QL), 2010 CarswellQue 13100, setting aside the accused’s conviction for indecent assault. Appeal allowed, LeBel and Fish JJ. dissenting.

                    Sarah‑Julie Chicoine and Jean Campeau, for the appellant.

                    Yves Savard and Claudia Langdeau, for the respondent.

                    English version of the judgment of Deschamps, Abella, Cromwell, Moldaver and Karakatsanis JJ. delivered by

[1]                              Deschamps J. — The respondent was convicted of indecently assaulting the complainant.  His trial was held more than 30 years after the impugned acts.  When those acts first began, the complainant was 13 years old and the respondent, her brother‑in‑law, was 27.  There was almost no physical evidence.  The credibility of the witnesses was determinative.

[2]                              According to the complainant, the abuse had occurred when she went to babysit the children of her sister and the respondent, and it had taken place in their residence on some occasions and in their car at other times when the respondent drove her home.  The respondent denied this.

[3]                              The trial judge analysed the evidence systematically.  He did not believe the respondent.  Neither the respondent’s testimony nor that of his wife raised a reasonable doubt.  The trial judge found that the testimony of the respondent’s daughter had no impact on the verdict.  He set out numerous reasons to explain why he considered the complainant’s testimony credible.  He accepted the police officers’ testimony concerning an interrogation to which the respondent had submitted.  The trial judge held that the evidence as a whole did not raise a reasonable doubt as to the respondent’s guilt and that the prosecution had proved beyond a reasonable doubt that the offence had been committed.

[4]                              The majority of the Court of Appeal found that the trial judge had erred in assessing the credibility of the respondent’s wife.  They undertook their own analysis of the evidence, concluded that the verdict was unreasonable and entered an acquittal.  One judge dissented, stating that the trial judge “did not commit any palpable and overriding error in his assessment of the evidence and that the verdict handed down was not unreasonable” (2010 QCCA 2237 (CanLII), at para. 178).

[5]                              Whether a verdict is unreasonable is a question of law.  Because of the dissent on this question, the appeal comes before this Court as of right.

[6]                              The appellant argues that the trial judge did not err in assessing the credibility of the witnesses and that the verdict was not unreasonable.  She submits that the Court of Appeal should not have interfered.

[7]                              In the Court of Appeal, the respondent relied on s. 686(1) (a)(i) of the Criminal Code, R.S.C. 1985, c. C‑46 , which is also central to the appeal to this Court.  It reads as follows:

                           686. (1)  On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

                           (a)     may allow the appeal where it is of the opinion that

                                    (i)      the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

[8]                              The issue here is whether the Court of Appeal correctly applied the relevant principles.

I.       Applicable Principles

[9]                              To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, [1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, determine whether the verdict is one that a properly instructed jury or a judge could reasonably have rendered.  The appellate court may also find a verdict unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge (R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19‑21; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190).

[10]                          Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact.  A court of appeal that reviews a trial court’s assessments of credibility in order to determine, for example, whether the verdict is reasonable cannot interfere with those assessments unless it is established that they “cannot be supported on any reasonable view of the evidence” (R. v. Burke, [1996] 1 S.C.R. 474, at para. 7).

II.     Application

[11]                          In the case at bar, the majority of the Court of Appeal reached their conclusions by substituting their own assessment of the credibility of the witnesses for that of the trial judge.  They were not persuaded by the reasons the trial judge had given for not believing the respondent; they found that he had incorrectly assessed the significance of the testimony of the respondent’s wife, and that the defence’s theory of confabulation was not frivolous.  In their view, the trial judge had erred in accepting the complainant’s testimony.  After undertaking their own assessment of the witnesses’ credibility, they concluded that his verdict was unreasonable and entered an acquittal. 

[12]                          However, that verdict was clearly one a judge could reasonably render (Yebes, Biniaris).  Unlike my colleague Fish J., I do not find that the trial judge drew an inference or made a finding of fact that was plainly contradicted by the evidence or was incompatible with evidence that was not otherwise contradicted or rejected (Sinclair).  Furthermore, the trial judge’s assessment of the witnesses’ credibility was reasonable (Burke).  For all these reasons, I find that the intervention of the Court of Appeal cannot be justified in this case.

[13]                          In R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439, Arbour J. made an observation that applies in the instant case (para. 29):

                    . . . where a judge gives detailed reasons for judgment and when, as in this case, the reasons reveal that he or she was alive to the recurrent problems in this field of adjudication, the court of appeal brings no special insight to the assessment of the evidence.  As this Court’s s. 686(1) (a)(i) jurisprudence makes very clear, the fact that an appeal court judge would have had a doubt when the trial judge did not is insufficient to justify the conclusion that the trial judgment was unreasonable.

[14]                          The trial in the case at bar lasted five days.  I will not review the evidence.  Thibault J.A., the dissenting judge in the Court of Appeal, did so and I agree with her reasons.  However, I will address certain comments made by Fish J., who, like the majority of the Court of Appeal, reassesses the testimonial evidence.  He focusses on specific excerpts from that evidence and says that he is not convinced by the reasons the trial judge gave for accepting the complainant’s version of the facts and rejecting the testimony of the respondent’s wife.

[15]                          With respect, it is my view that the trial judge did not disregard the flaws in the complainant’s testimony, nor did he err either in taking into account her age and the time elapsed since the incidents in question or in assessing the testimony of the respondent’s wife.  The trial judge was not required to accept all aspects of the prosecution’s theory or to reject it in its entirety any more than this Court is.  His role as the trier of fact was to assess and give due weight to the evidence.

[16]                          The trial judge was fully aware of the limitations of the complainant’s testimony.  He considered them, quite appropriately, in the analysis that led him to conclude that he believed the complainant:

                    [translation]  . . . the cross‑examination of the complainant showed that she had been mistaken, contradicted herself or been inconsistent on, or had no recollection of, many details of secondary importance: times, places, duration, first disclosure, frequency, divulgation, context, her personal situation or those of other people.  She readily recognized this.  All these flaws relating to secondary matters cannot affect her general credibility in light of the whole of the evidence.  Many of the incidents in question took place thirty‑four (34) years before she testified, at a time when she was only thirteen (13) years old in traumatic circumstances.  The words of the Supreme Court that I quoted above are entirely relevant here.  [A.R., vol. I, at pp. 77‑78]

[17]                          It is clear from this quotation that the trial judge took into account the weaknesses of the complainant’s testimony, including the passages referred to by Fish J., but found that this evidence was not determinative, especially given that the incidents in question had taken place 34 years before she testified, at a time when she was only 13 years old.  It is up to the judge who sees and hears a witness to determine what effect the passage of time might have had and how vulnerable the witness was in light of his or her age and the factual context.

[18]                          As for the testimony of the respondent’s wife, I will merely note that the trial judge did not, as my colleague states, fault this witness for being both too precise and too general.  Nor did he find that there were no contradictions whatsoever in the complainant’s testimony.  Rather, he found it unlikely that the respondent’s wife could remember details of daily life where there was no reason for them to have been [translation] “fixed” in her memory.  This very contrast between the fact that she testified about specific details while at the same time having recourse to general expressions supports the trial judge’s finding that the witness did not really remember the specific details.  In sum, the trial judge found that the respondent’s wife had only a general recollection of what had happened to her 30 years earlier.  His comments on the complainant’s testimony and that of the respondent’s wife explain his conclusion that the determinative aspects of their testimony could be reconciled.  In his view, the testimony of the respondent’s wife [translation] “does not, having regard to the evidence as a whole, interfere with that of the complainant, since it also admits of occasions when she was alone with the accused” (A.R., vol. I, at p. 73).  The trial judge also noted that the respondent had not denied being alone with the complainant in the house or in his car when he drove her home at night.  The trial judge’s approach was coherent and was also supported by the evidence.  It did not justify the intervention of the Court of Appeal.

[19]                          I agree with Thibault J.A., for the reasons set out above and for the reasons she gave, that the trial judge did not err in assessing the evidence.

[20]                          For these reasons, I would allow the appeal and restore the trial judge’s verdict.

                    The reasons of LeBel and Fish JJ. were delivered by

                    Fish J. (dissenting) —

I

[21]                          This appeal by the Crown comes to us as of right on the strength of a dissent in the Court of Appeal (2010 QCCA 2237 (CanLII)).

[22]                          Justice Deschamps would allow the appeal and restore the respondent’s conviction at trial on the ground that the majority in the Court of Appeal impermissibly substituted its own findings of fact ― including its own opinion as to the credibility of witnesses ― for the findings and opinion of the trial judge. 

[23]                          With respect, I am of a different view.

[24]                          I agree that Pelletier J.A., delivering the reasons of the majority, reviewed the evidence in  detail. He committed no error in that regard. He was not only entitled but indeed bound to do so:  It is well established that reviewing courts, in concluding that a verdict is unreasonable, must articulate as precisely as possible what features of the case support that conclusion.

[25]                          To this end, a reviewing court must re-examine the entire evidentiary record at trial, consider the effect of its salient elements, and specifically identify aspects of the evidence ― or lack of evidence ― that are of particular concern (R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 41-42; R. v. Yebes, [1987] 2 S.C.R. 168, at p. 186).  As McLachlin J. (as she then was) stated in R. v. W. (R.), [1992] 2 S.C.R. 122, at p. 131, “[i]t is thus clear that a court of appeal, in determining whether the trier of fact could reasonably have reached the conclusion that the accused is guilty beyond a reasonable doubt, must re-examine, and to some extent at least, reweigh and consider the effect of the evidence.”

[26]                          That is precisely what Justice Pelletier did in this case.  He took care, repeatedly and expressly, to recognize his duty as an appellate judge to show due deference to the trial judge’s findings of fact. But due deference does not preclude detailed scrutiny of the trial judge’s findings, even as to the credibility of witnesses: “. . . as a matter of law it remains open to an appellate court to overturn a verdict based on findings of credibility where, after considering all the evidence and having due regard to the advantages afforded to the trial judge, it concludes that the verdict is unreasonable” (W. (R.), at pp. 131-32).

[27]                          Here, the majority in the Court of Appeal did not set aside the respondent R.P.’s conviction because it found the complainant insincere or mendacious.  Its decision rests instead on a meticulous demonstration that the trial judge ignored or disregarded critical features of the evidence ― including evidence that the complainant herself either confirmed in substance, or did not in fact contradict.

[28]                          It is now well established that where a trial judge draws inferences or makes findings of fact that are contrary to the evidence, he or she engages in an “illogical or irrational reasoning process” that invites appellate intervention (R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 15-16).

[29]                          In this regard, Pelletier J.A. characterized as central to the trial judge’s reasoning ― and therefore decisive ― the trial judge’s findings of fact related to the evidence of the complainant M.L. and that of her sister G.L., the respondent’s wife, who testified for the defendant.  In particular, Pelletier J.A. considered unreasonable, because it was contrary to the evidence, the trial judge’s finding that there was no inconsistency between the testimony of G.L. and M.L. (A.R., vol. I, at p. 73; C.A. judgment, at paras. 112-17).

[30]                          The trial judge appears to have excused this inconsistency, at least in part, on the strength of jurisprudence which holds that child witnesses, or those testifying to events that occurred while they were children, are not held to the same standard as other witnesses (A.R., vol. I, at pp. 67-69).  Yet, the complainant in this case falls into neither category. An adult witness at the time of trial, she was a teenager and not a child of tender years at the time of the alleged offences. Moreover, childhood and the passage of time may well excuse memory gaps or hazy recollection, but not precise allegations that are directly contradicted ― as in this case.

[31]                          As we shall presently see, the trial judge erred as well in rejecting G.L.’s evidence for unsustainable reasons. He also ignored M.L.’s own evidence confirming important aspects of G.L.’s testimony tending to show that R.P. could not have assaulted M.L. as the latter alleged.

[32]                          In short, I agree with the majority in the Court of Appeal that the trial judge’s reasons do not resist scrutiny, even when viewed through the mandatory lens of deference. I agree as well that, on the record before us, no trier of fact could reasonably conclude that R.P. is guilty beyond a reasonable doubt of the offence with which he was charged.

[33]                          In the result, I would dismiss the Crown’s appeal.

II

[34]                           R.P. was convicted of indecent assault under what was s. 149  of the Criminal Code  at the time of the alleged offences (R.S.C. 1970, c. C-34).  The complainant, M.L., testified that R.P. had sexually abused her on regular and frequent occasions between 1974 and 1979, when she was between 13 and 17 and he was between 27 and 32.

[35]                          The Crown called four witnesses: M.L., the police officer who took her complaint, and the two officers who interrogated R.P.  R.P., his wife G.L. ― the complainant’s sister ― and their daughter C.P. testified for the defence.  As Justice Deschamps mentions, the evidence in the case was entirely testimonial ― the Crown adduced no material evidence.  This is hardly surprising, since the offences were said to have been committed many years earlier.

[36]                          The complainant testified that the abuses occurred in four different situations, all involving her visits to the home of R.P. and his wife G.L. to babysit their children.

[37]                          First, M.L. alleged that R.P. assaulted her sexually during the two occasions when G.L. was in the hospital giving birth to her second and third children. As we shall see, this was a critical feature of her narrative.  And, as we shall see as well, M.L. later conceded that she could not remember whether she ― or someone else ― had in fact babysat when her sister went to the hospital to give birth.

[38]                          Second, M.L. testified that R.P. assaulted her regularly while his wife was home as well, with an unobstructed view from their adjacent bedroom and with the door open.  As we shall see, M.L. confirmed the evidence of G.L. regarding the layout of the apartment.  Moreover, M.L. could not recall the bedroom door ever being closed.

[39]                          Third, M.L. testified that R.P. often assaulted her sexually when he returned home before his wife while M.L. was babysitting their children.  During that period, said M.L., she normally came over to babysit [TRANSLATION] “around twice a week”.  Here again, we shall see, the uncontradicted evidence ― largely confirmed by M.L. ― is that R.P. rarely came home before his wife.

[40]                          Finally, M.L. testified that R.P. would sometimes assault her in his car while driving her home after babysitting.  As we shall see, for much of the period covered by the indictment, M.L. lived nearby and generally walked home on her own. 

III

[41]                          I turn now to a closer look at each of the four “scenarios” alleged by the Crown.

[42]                          An integral element of the complainant’s narrative is that R.P. sexually assaulted her while his wife G.L. was about to leave for the hospital to give birth to their second child, while G.L. was in fact in the hospital on that occasion, and again when G.L. was in the hospital giving birth to their third child.

[43]                          The central importance of this branch of M.L.’s complaint is evident for several reasons.  According to M.L., the very first incident of abuse occurred on the night just prior to G.L. entering the hospital to give birth to her second child.  M.L. testified that she was asked to stay over that night because G.L. was scheduled to go to the hospital early the next morning and someone had to look after the first child.  She highlighted this element of her narrative not only in her evidence at trial but also in two letters she wrote to G.L. before going to the police:

                    [TRANSLATION] Like I said, it all started when I was babysitting, until what Age?  And when I say that it happened when you were going to the hospital to have a baby, I remember very Well, because I was sleeping on the SOFA on [. . .] Street.  I don’t give a DAMN whether you BELIEVE me or not, because it’s the TRUTH.

And again:

                    Like I said, it started on [. . .] Street.  I know this will be painful for you.  You had [C.] and you were ABOUT to have your 2nd baby.  You had me COME OVER that NIGHT to sleep there, because you were going to the hospital the next day to have the baby, and to babysit the kid.  This will hurt you, because he TOOK ADVANTAGE while you were SLEEPING and each time you went to the hospital to have a baby.

[44]                          G.L. testified, however, that M.L. had in fact not babysat on either of the occasions she mentioned.  On the eve of her entering the hospital to give birth to her second child, said G.L., she brought her first child to stay with her mother. During the birth of her third child, it was both her mother and her brother who cared for the other two.

[45]                          Confronted with this evidence on cross-examination, M.L. did not contradict G.L.  She could only say, repeatedly, [TRANSLATION] “I have no idea.  I don’t know”:

[TRANSLATION]

                    Q.    And when the second child, [D.], was born . . .

                    A.    Yes.

                    Q.    . . . who sat [C.]?

                    A.    While she was in hospital to have the baby, you mean?

                    Q.    Yes.

                    A.    Well I did.

                    Q.    If I suggested that it was your mother, that [C.] was left with your parents when [D.] was born, wouldn’t that be more accurate?

                    A.    . . . I have no idea.  I don’t remember.

                    Q.    When the second child, [K.], was born . . .

                    A.    She was the third.

                    Q.    The third.  I’m sorry; you’re right. Excuse me. When the third child, [K.], was born, do you remember who babysat [C.] and [D.]?

                    A.    . . . No, I don’t remember.

                    Q.    If I suggested that your brother [P.] babysat [C.] . . . I’m sorry, that your brother [P.] babysat [D.] and your mother babysat [C.] when [K.] was born, would that be right?

                    A.    I have no idea.  I don’t remember.

                    Q.    You don’t remember?

                    A.    No.

[A.R., vol. II-A, at pp. 177-78]

In his reasons for judgment, the trial judge did not mention at all M.L.’s admission that she had “no idea” and “did not remember” who had babysat on those occasions.

[46]                          But for M.L.’s repeated concession that she could not remember who babysat on either occasion when G.L. went to the hospital to give birth, it was perhaps open to the trial judge to reject the evidence of G.L. and to accept the earlier evidence of M.L.  In my respectful view, however, the judge could not rationally have rejected or disregarded G.L.’s evidence for the reasons he gave ― a matter to which I shall later return.  Nor could he have reasonably concluded, as he did, that G.L.’s evidence ― uncontradicted in light of M.L.’s evidence that she did not remember ― was consistent with M.L.’s earlier allegations of abuse on both occasions.

[47]                          Regarding the second situation — the abuses that occurred at the house when G.L. was asleep — the trial judge himself specified that this scenario occurred [TRANSLATION] “regularly” (A.R., vol. I, at p. 56). However, G.L. testified that R.P. almost always went to bed before her because he started work early and she, a housewife, was a late-to-bed type, generally turning in between 11:30 p.m. and 1:00 a.m.

[48]                          Moreover, G.L. testified that she always kept her bedroom door open in order to hear if the children woke up. M.L. confirmed G.L.’s evidence in this regard and could not recall the bedroom door ever being closed while she was there.  Consider also that M.L. testified that, save for one exception she could remember, the abuses always occurred on the couch in the living room. In their home from 1974-1977, the bedroom faced directly on the living room and, lying in her bed, G.L. said she could actually see the living room couch. M.L. also testified that when R.P. would ejaculate on her, she would walk to the bathroom to wash herself, still disrobed. In the couple’s next home, where they lived from 1977-1978, the evidence of G.L. indicated that one had to pass directly in front of the bedroom in order to get to the bathroom, a fact M.L. did not deny when cross-examined in this regard.

[49]                          One would expect that G.L., a light sleeper suffering from insomnia, would at some point have heard or seen what M.L. alleged was happening, regularly and frequently, a few feet away, within her direct view.  But M.L. confirmed that this had never occurred. Nor, according to M.L., were the frequent abuses over a period of almost five years ever once suddenly interrupted because of apprehended discovery.

[50]                          The third circumstance in which the abuses were alleged to have occurred was on babysitting nights when R.P. would return home before G.L. G.L.’s testimony is inconsistent with M.L.’s allegations of regular abuse in this circumstance because R.P. returned home before G.L. very rarely.

[51]                          M.L. corroborated G.L.’s assertion that the only two reasons for which M.L. was called upon to babysit (unless G.L. and R.P. went out together, in which case the abuse would fall under the second circumstance) was when G.L. was  playing bingo or seeing her mother. On these evenings, a babysitter was necessary when R.P. was also out, working as an usher ― which M.L. confirmed. G.L. testified that R.P. worked late, usually until 10:45-11:00 p.m.  Regarding the nights when G.L. was seeing her mother, M.L. confirmed G.L.’s evidence that their mother always went to bed early, around 9:30-10:00 p.m.  To this extent, M.L. again lent support to G.L.’s evidence that she was likely to get home before R.P. on those nights.  Bingo nights, according to G.L., always ended around 10:30 p.m. and it took her 15 minutes to walk home.

[52]                          In general, G.L. was adamant that only rarely did R.P. arrive home before her.  Her evidence, once again, stands uncontradicted.

[53]                          Finally, we are left with the fourth circumstance ― sexual assaults alleged by M.L. to have occurred in the car when R.P. drove her home.  According to both G.L. and M.L., for the first five years covered by the indictment, 1974-1978, M.L. almost always walked home because the distance was very short. From 1978-1979, the couple lived in a home that was a 20-minute drive from M.L.’s residence.  During that period, however, M.L. testified that she babysat relatively infrequently.

[54]                          To the extent that the trial judge rejected or disregarded the testimony of G.L., he did so for unsustainable reasons.

[55]                          First, the trial judge faulted G.L. for being suspiciously precise in her recollection of dates and times. It was, he said, [TRANSLATION] “unlikely that she could remember, thirty (30) years later, so many specific details about the comings and goings of the accused and herself and the times at which they got home” (A.R., vol. I, at p. 73). In fact, nowhere in her evidence does G.L. purport to recall the “specific details” imputed to her by the trial judge. In fact, as the trial judge himself recognized, G.L. repeatedly used terms like “generally, almost always, most of the time, maybe, I don’t remember and approximately” (A.R., vol. I, at p. 73).  In short, the trial judge appears to have given no weight to G.L.’s testimony for one reason unsupported by the record, and a second reason that contradicts the first: That she was too general ― and too precise.

[56]                          Second, the trial judge found that G.L. had chosen to believe R.P. because she is [TRANSLATION] “related” to her husband (A.R., vol. I, at p. 73), disregarding the fact that she was also closely related to the complainant, her sister. It seems to me unacceptable as well to reject on the ground of relationship the evidence of the only person who could ― other than the complainant or the accused ― testify to the layout of their previous homes, to R.P.’s daily schedules and routines, and to the circumstances surrounding her giving birth.  And I recall here once again that the complainant confirmed much of G.L.’s evidence in each of these regards.

[57]                          The final reason the trial judge gave for disregarding G.L.’s testimony was that it was not inconsistent with M.L.’s.  This conclusion, as we have seen, is plainly incompatible with the Crown’s case against the accused, with the record as a whole and, more particularly, with M.L.’s own evidence. In arriving at a different conclusion, Justice Deschamps writes:

In [the trial judge’s] view, the testimony of the respondent’s wife [translation] “does not, having regard to the evidence as a whole, interfere with that of the complainant, since it also admits of occasions when she was alone with the accused” . . . .  The trial judge also noted that the respondent had not denied being alone with the complainant in the house or in his car when he drove her home at night. [para. 18]

[58]                          But this was not the Crown’s case against the respondent at trial.  Nor is it the Crown’s position in this Court.  On the contrary, the Crown insists that [TRANSLATION] “the instances of abuse were numerous and occurred routinely” (transcript, at p. 16) and were not isolated “occasions when she was alone with the accused”, either in the respondent’s home or in his car.

[59]                          The complainant herself testified that she babysat the children of G.L. and R.P. twice a week during most of the relevant period. Asked whether the abuse [TRANSLATION] “was repeated practically every time”, she replied: “That’s right” (A.R., vol. II-A, at p. 159).

[60]                          In short, the complainant testified that she was abused by R.P. while babysitting when G.L. was in the hospital giving birth to their second and third children. G.L. testified that the complainant did not babysit on either occasion.  The complainant’s evidence was that R.P. again abused her [TRANSLATION] “practically every time” she babysat during the five years covered by the indictment.  G.L. testified that R.P. was rarely home without her and that, when home, she had an unobstructed view of the scene of the alleged abuse during much of the relevant period. 

[61]                          It thus seems to me unreasonable, if I may say so with respect, to find that G.L.’s testimony does not [TRANSLATION] “interfere with” ― or tend to contradict or render implausible ― the evidence of the complainant, M.L.

IV

[62]                          For all of these reasons, as stated at the outset, I would dismiss the Crown’s appeal and affirm the respondent’s acquittal by the Court of Appeal.

                    Appeal allowed, LeBel and Fish JJ. dissenting.

                    Solicitor for the appellant:  Poursuites criminelles et pénales du Québec, Québec.

                    Solicitors for the respondent:  Savard, Pigeon, Lévis.