DATE: 20010220
DOCKET: C32598
COURT OF APPEAL FOR ONTARIO
FINLAYSON, LABROSSE and LASKIN JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Amy Alyea, for the respondent
Respondent
- and -
VALERIE DUMONT
David M. Humphrey, for the appellant
Appellant
Heard: January 24, 2001
On appeal from the conviction imposed by Justice Frank A. Sargent, sitting without a jury, dated June 1, 1999 and on appeal from the sentence imposed by Justice Sargent dated July 26, 1999.
FINLAYSON J.A. (dissenting):
[1] The appellant appeals her conviction and sentence for pointing a firearm without lawful excuse at her two children on one occasion approximately nineteen years ago, sometime between January of 1979 and December of 1981.
Facts
[2] The complainants, Michel Dumont (“Michel”) and Lucille Dumont (“Lucille”), are the appellant’s children. Their father, Isadore, the appellant’s husband, died one year prior to trial, which took place in June of 1999.
[3] The appellant, who was 48 years old at the time of trial, resided in Hurkett, near Thunder Bay. She had a strained relationship with the complainants from the time they were teenagers and had been estranged from her son for 14 years prior to trial.
[4] The complainant Michel, age 32 at the time of trial, testified that on the morning of the alleged gun pointing incident, his mother had woken up very cranky and “it seemed like anything could set her off.” As he and his sister, Lucille, ran around looking for clothes for their mother to wear, he remembers being “really scared and worried, because we were horribly beaten and abused as kids.” As a result “we were really, you know, always quick to follow her, her every statement and whim.”
[5] Michel testified that he and his sister were both shaking and nervous and had trouble ironing the pants the appellant had chosen. They put a double crease in the pants and when Michel asked his mother if this was good enough, she told him that it was not. At this point, his mother called them “you stupid useless shits” and she “just started to escalate.” Lucille, age 30 at the time of trial, also testified that she and her brother were “nervous and scared” as they tried to iron the double crease out of the pants “because our mother was very very angry and she had a long history of severely punishing us.”
[6] According to Michel, the appellant had him and his sister stand in the kitchen while she started asking them questions, such as “Why are you useless?”, “Why are you stupid?” and “Why can’t you do this?”. She gave them 10-15 minutes to go to their rooms and come up with a good answer. Then, “at some point in the interrogation, she went into the laundry room and grabbed a rifle.” Michel testified that he was told to get the bullets for his mother and remembers her loading the gun, though he does not remember exactly how she did so. Michel testified that the appellant pointed the rifle at him and his sister. She asked them “Why shouldn’t I kill you?” and he and Lucille tried to come up with answers. Michel stated that the gun at one point was laying against the kitchen table.
[7] While Michel testified that the appellant asked him to retrieve bullets from the hallway closet, he admitted that prior to the trial, he had never mentioned that he had been asked to retrieve the bullets. He claimed that he only remembered that detail “over the last couple of weeks.” Further, in cross-examination, Michel acknowledged that despite his evidence that his mother loaded the gun in the kitchen, he could not recall exactly where the gun was loaded. Michel admitted that he was confused on this point and that his memory “is a little foggy about the complete thing.”
[8] Michel testified that the appellant brandished the gun between him and his sister, depending on whom she was addressing. The appellant then instructed them to go to their room for ten minutes and to tell her why they should not be shot. Michel testified that when he told the appellant that she could not kill them because she loved them, she responded by saying “that’s no reason.” When Lucille suggested that they should not be killed because “daddy wouldn’t like it”, the appellant responded she would also kill the children’s father.
[9] According to Michel’s testimony, after a few hours, the appellant threatened to kill herself and took the gun with her into her bedroom. She emerged a few minutes later without the gun and told the kids to “get out of my sight.” They stayed in their room for the rest of the day.
[10] Michel testified that the incident lasted approximately four hours, from when they woke up, which was generally 7:30 a.m. to 8:00 a.m., until eleven o’clock in the morning. Michel testified that he was aware that the incident took four hours as he was forced to watch the clock.
[11] In support of the allegation of being “horribly beaten and abused” by the appellant, Michel testified that the appellant beat him and his sister three times a week and in doing so, “wore out six leather belts”. He claimed that before striking them, she would often raise her arm above her head, and then count each strike aloud, taking a tea break between every hundred strokes.
[12] In her testimony, Lucille initially stated that the appellant had retrieved the bullets and the gun from her bedroom and that the appellant loaded the gun in the bedroom. However, when confronted with Michel’s evidence, Lucille then claimed to have a “swimming memory” that Michel had in fact been sent for bullets which she supposed he retrieved from the bedroom, despite never having seen him with any bullets. Further, Lucille did not recall the appellant specifically threatening to go into the bedroom to shoot herself. While Michel had testified that the appellant held the gun at waist level, Lucille could not recall how her mother held the gun.
[13] The appellant testified and categorically denied all of the allegations. The appellant’s niece, Annette Carrey, testified that Lucille and Michel were both attention seekers and that Lucille was easily influenced by Michel and tended to adopt everything he said as the truth. She further testified as to a conversation she remembered having had with Lucille in 1992, during which Lucille had stated that although she could not recall the incidents of abuse Michel was alleging, they must have happened “because he said it happened.” This confirmed Ms. Carrey’s suspicion that “Michel makes up a story and [Lucille] follows along with whatever he says.” Ms. Carrey did acknowledge that her conversation with Lucille did not include any mention of an incident involving a gun. The appellant’s other niece, Gissette LeBlanc, testified that while she could not recall circumstances where she would have seen Michel’s back or the back of his legs, she never saw any signs of abuse on Michel and he never complained to her about suffering abuse. It was the position of the defence that the allegations were fabricated and that the complainants’ testimony was inherently unreliable and fraught with inconsistencies.
Analysis
[14] It is my opinion that the reasons given by the trial judge are most unsatisfactory. First, the trial judge did not give adequate nor proper consideration to the evidence presented on behalf of the appellant. In addition, in determining whether the Crown’s case had been proven beyond a reasonable doubt, the trial judge failed to appropriately assess the internal and external inconsistencies within the complainants’ evidence and the allegation of collaboration between the complainants.
[15] I agree with the appellant that the trial judge virtually ignored the evidence of the appellant who testified and emphatically denied the allegations. Despite being specifically referred by counsel to R. v. W.D. (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.), he failed to enunciate any of its principles in convicting the appellant. He concentrated on the evidence of the complainants and simply stated that:
So having looked at all aspects of the credibility of the two Crown witnesses, I am satisfied beyond any reasonable doubt that their stories are true; that it did occur; and I will find Mrs. Dumont guilty of the offence before the court.
[16] There is no analysis of the appellant’s evidence whatsoever; no finding as to her credibility much less a finding that her evidence failed to raise a reasonable doubt. All the trial judge said was:
Now, having heard the Crown’s case and I, of course, heard the defence evidence, which was basically Mrs. Dumont saying that it did not happen. And that was her evidence. Basically.
[17] Furthermore, the trial judge appeared to think that the evidence given by the appellant in her testimony required corroboration:
Her corroborative evidence came from Ms. Carrey, who is a cousin of Michel and Lucille, and I assume a niece of the accused. Is that correct? Yes. As was Gissente, as well.
I am afraid that their evidence is weak at the very strongest and it is not corroborative of anything in that Ms. Carrey does not know whether the conversation that took place in 1992 contextually had anything to do with the charge before the court. And Ms. LeBlanc’s evidence was of such a nature that it was of little or no help in that we do not know when she had any opportunity, if she did have an opportunity, to ever see the areas of the two children as they then were, that would have given rise to suspicions of beatings where bruising might have been left. So there evidence is virtually not a factor in this trial.
[18] Without challenging the credibility or veracity of Ms. Carrey or Ms. LeBlanc, the trial judge, focussing on the issue of corroboration, completely dismissed their evidence, rather than considering its value in preventing the Crown from proving the appellant’s guilt to the appropriate standard. The trial judge does not appear to have turned his mind to whether Ms. Carrey’s evidence, while not relating to the specific charge before the court, was capable of generally undermining Lucille’s credibility and supporting the appellant’s allegation of collaboration between the appellant’s children. Similarly, Ms. LeBlanc’s testimony was considered by the trial judge to be “virtually not a factor”, despite the fact that while it did not prove that Michel had never been abused, it did raise doubts as to his allegations of ongoing and severe abuse at the hand of his mother.
[19] In contrast to his hasty dismissal of the evidence presented on behalf of the appellant, the trial judge appears to have accepted with little question the evidence presented by the complainants. This is despite the fact the evidence of Michel as to ongoing abuse and the specific complaint – pointing a firearm – is so extreme as to demand skepticism by the trial judge.
[20] On my analysis of the trial judge’s reasons, he appears to have commenced with the conventional stereotype that the two child witnesses would be unable to tell such a tale were it not true:
The evidence was given [by the children of the appellant] in such a fashion that it would have been an unbelievable acting job to have given the evidence, if it were not true.
[21] From this starting point, the trial judge failed to critically consider the degree to which the inconsistencies of the two complainants made their evidence problematic. In his consideration of “not only what was said, but how it was said,” the trial judge appears to have attached no significance to the internal and external discrepancies in the testimony of the complainants on issues such as the procurement of bullets, the loading of the gun and the statements made by the appellant during the incident. Rather, the trial judge explain the inconsistencies as follows:
The court has to take into consideration that this is an allegation where it was an extremely terrifying incident, if it is true. That the memory of each and every incident would not be the same for each one of them. That the stories would obviously, I think, differ in detail. Not only because of the time that expired, but because the effect of the incident would be undoubtedly different for each of them.
[22] In addition, the trial judge appears to have failed to attach any significance to the reaction of the complainants’ father when told by his children of the abuse their mother had inflicted upon them. Michel testified that when he was approximately 17 years of age, he disclosed the allegations of abuse to his father. According to Michel, at that time, his father did not want to believe him, and only believed him when his sister reiterated the allegations.
[23] Further, Michel testified that he didn’t think his father ever knew of the abuse suffered by him and Lucille, because he “was never a hands on kind of dad.” Given that Michel testified that he and his sister had been horribly beaten and abused from a very early age, that their mother repeatedly subjected them to brutal and protracted punishments, and that the bruises they suffered were often so noticeable that the appellant prevented them from going to physical-education class for fear of discovery, the acknowledgement by Michel that his father appeared to be unaware of any abuse being inflicted on his children raises doubts as to the truthfulness of the abuse allegations.
[24] When the fact that the appellant’s husband (who worked away from the home during the week but was with the family on weekends) appears to have had no indication of what was supposedly occurring in the family home is combined with Ms. LeBlanc’s testimony as to her lack of awareness of any abuse, the trial judge’s failure to address the effect of this evidence on Michel’s credibility is unacceptable.
[25] Furthermore, the trial judge did not adequately consider the appellant’s allegation of collaboration on the part of the complainants. While Michel agreed that he and Lucille discussed the allegations “years ago”, he denied he had to assist his sister in remembering any of the details of the alleged offence. However, Lucille testified that when she discussed the incident with her brother prior to talking to the police, there were things that he remembered that she did not. Also, she accepted the suggestion made during cross-examination that after listening to Michel’s story, there were things she remembered that she hadn’t remembered before, and that she now believes certain things to be true after Michel reminded her of them.
[26] Despite this evidence, and the evidence given by Ms. Carrey that Lucille was easily swayed by her brother, the trial judge simply stated that the complainants had no apparent motive to fabricate an allegation against their mother and that there was no evidence that the complainants had conspired to tell a story that was not true:
Again, we’re left with Michel’s rendition of what occurred back some 20 years ago as well as Lucille. If they had conspired in this matter or had Lucille adopted completely Michel’s rendition as is alleged in cross-examination, their stories would have been much more likely to have been the same.
[27] It is evident that in reviewing the evidence of the complainants and that presented by the appellant, the trial judge did not address his consideration of the guilt of the appellant with the care discussed by this court in R. v. Norman (1993), 1993 CanLII 3387 (ON CA), 87 C.C.C. (3d) 153 (Ont. C.A.) and R. v. W.S. (1994), 1994 CanLII 7208 (ON CA), 90 C.C.C. (3d) 242 (Ont. C.A.) at 253:
Instead of questioning the veracity and accuracy of the witnesses who, because of the nature of the charge, were called to support a negative, [the trial judge] should have been more critical of the complainant who put forward the affirmative that the offences took place: see R. v. Norman, supra, at pp. 172-3. This is another example of the way the trial judge shifted the onus to the appellant in spite of the Crown’s burden to prove all elements of the crime beyond a reasonable doubt.
[28] It is my conclusion that the approach taken and reasons given by the trial judge were inadequate. In combination, the trial judge’s focus on corroboration, failure to adequately review the appellant’s evidence and neglect of the frailties associated with the complainants’ evidence, resulted in an unsafe verdict. Counsel for the appellant concedes that there is evidence that could support a conviction. Accordingly, the appeal is allowed, the conviction is quashed and a new trial is ordered. In light of this disposition, there is no need to deal with the appeal against sentence.
Signed: “G.D. Finlayson J.A.”
LABROSSE J.A.:
[29] I have read the reasons of my colleague Finlayson J.A. Unfortunately, I am unable to agree with his disposition of this appeal.
[30] As noted by Finlayson J.A. during submissions, the trial judge was specifically alerted by counsel to the decision of R. v. W. (D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.). The trial judge would have been alive to the proper manner in which to approach the evidence.
[31] The reasons of the trial judge are not a model of perfection. However, in brief reasons given after a very short trial, the trial judge considered the evidence of the complainants regarding an event that had occurred some nineteen years earlier, the defence evidence, and the possibility of collusion. He was alive to the discrepancies in the evidence of the complainants and to the possible existence of a motive to fabricate.
[32] The trial judge had the unique advantage of seeing and hearing the witnesses and assessing their credibility. In the end he believed the complainants. As fairly conceded by counsel for the appellant, this is not a case where there is no evidence to support the conviction. On the contrary, the evidence accepted by the trial judge amply supports the verdict and it is not the function of this court to retry the case.
[33] In my view, the trial judge considered the totality of the evidence in this credibility case and concluded that the Crown’s case had been proved beyond a reasonable doubt. In reading the judgment in its entirety, I do not accept that he required the appellant’s evidence to be corroborated and that he improperly rejected or improperly assessed the defence evidence. It was certainly open to him to conclude that the evidence presented on behalf of the defence was weak and of no assistance to the appellant.
[34] I would dismiss the appeal against conviction.
[35] As for the sentence, it appears from the trial judge’s comments that he was unaware that a sentence could be served in the community.
[36] Even after having been made aware of the legislation, he appears to have entirely based his decision on the seriousness of the offence.
[37] The requirements of s. 742 of the Criminal Code are satisfied. In addition, the appellant has no criminal record and the court was dealing with an event that had occurred a long time ago.
[38] A conditional sentence is appropriate and consistent with the principles of sentencing. In addition to the statutory conditions, the appellant is to be subject to a curfew from 10:00 p.m. to 7:00 a.m.
[39] In the result I would dismiss the appeal against conviction. I would allow the appeal against sentence and impose a conditional sentence of one year on the terms stated above.
Signed: “J.M. Labrosse J.A.”
“I agree John Laskin J.A.”
RELEASED: FEB 20 2001
GDF