Court File and Parties

Court File No. 1714/11

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

LOUIS QUESNELLE

R E A S O N S F O R J U D G M E N T

THE HONOURABLE JUSTICE M. MULLIGAN

on July 4, 2013, at PETERBOROUGH, Ontario

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED,

BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486(1)

OF THE CRIMINAL CODE OF CANADA, SUPERIOR COURT OF JUSTICE DATED APRIL 15, 2013 BY JUSTICE M. MULLIGAN

APPEARANCES:

K. Eberhard Counsel for the Crown D. McFadden Counsel for Louis Quesnelle

THURSDAY, JULY 4, 2013

...PROCEEDINGS COMMENCE.

THE COURT: I will read my verdict reviewing the various counts. I will summarize them at the end for the benefit of both counsel, as well.

R E A S O N S F O R J U D G M E N T

MULLIGAN, J.(Orally):

Louis Omer Quesnelle is charged on a 10 count Indictment. The time period for the counts in question covers a period from the first day of January, 1987 to the 11th day of November, 1992. D.S. is the complainant with respect to the first six counts. Count number one relates to an assault. Count number two relates to a further assault. Count number three relates to an assault with a weapon. Count number four relates to touching for a sexual purpose of a person under 14. Count number five relates to sexual assault and count number six relates to touching for a sexual purpose by a person in a position of trust. S.S. is the complaint with respect to the remaining counts. Count number seven relates to sexual assault with a weapon involved. Count number eight relates to a sexual assault. Count number nine relates to an assault. Finally, count number ten relates to knowingly uttering a death

threat.

With respect to each count, the Crown is required to prove each of the essential elements of each offence beyond a reasonable doubt and this onus never shifts. The defence submits that the Crown has not met its onus with respect to each count and a verdict of not guilty should be recorded of each count.

Evidence for the Crown consisted of the evidence of the complaints D.S. and his mother, S.S., and the evidence of

L.S..

The defence called two witnesses: Sandra Bird, an intake worker for the Children’s Aid Society during the time period in question, and Catherine Coulterard, an intake worker for the Toronto Children’s Aid Society. She interviewed D.S. some years after the time period in question. The accused chose not to give evidence.

Before reviewing the specific elements of each offence, the relationship of the three Crown witnesses to the accused will provide context for the discussion that follows.

S.S. gave evidence that she moved

into a residence owned by Mr. Quesnelle in 1987. At that time, she was about 31 years of age and had two children, L.S., who was born […], 1977 and D.S. who was born in […] 1982. She was separated from her spouse and learned that Mr. Quesnelle - and, perhaps, I should say Quesnelle. I may be pronouncing the incorrectly, Quesnelle.

MR. MCFADDEN: Quesnelle. Thank you.

THE COURT: ...had a cottage in Bailieboro near Peterborough which was made available for her and her children to rent. The cottage was winterized and she resided there with her children who went to school in Bailieboro. Mr. Quesnelle also owned a smaller cottage next door. After a time he moved in and Mr. Quesnelle and S.S. commenced a common-law relationship. She acknowledged that this relationship included consensual sexual relations. When she moved in, her son, D.S., was about five and her daughter, L.S., was about ten.

In the fall of 1992, the common-law relationship had broken down permanently. S.S. moved out with her two children. At that point, L.S. was about 15 and D.S. was about 10.

According to Crown witnesses, Mr. Quesnelle worked at the Keele Valley Landfill Site some distance away from Bailieboro. He would go to work and stay nearby throughout the week at a temporary residence, returning to the cottage on Friday evening for the weekend. He may have worked every other Saturday at the landfill site during the time period in question.

S.S. was a stay-at-home mother. When she first moved into the residence, she did not have a vehicle. After a time, Mr. Quesnelle brought her a second-hand car. She began working part-time at a flea market stall for him on some weekends and pursued some other part-time employment. During the time period in question, there was, at least, one occasion when she and the children moved out to a shelter in Peterborough and another residence for a time because of a temporary breakdown in the relationship. This was evidently repaired because she moved back into the Bailieboro cottage with her children.

The alleged incidents described by the two complaints occurred over 20 years ago. From the evidence of D.S., his mother, S.S., and his sister, L.S., emerges a pictures of life for this family while living in Mr. Quesnelle’s cottage in Bailieboro. Before describing that picture, a few words about each of the witnesses is in order.

D.S.

D.S. was 30 at the date of the trial. The alleged events took place when he was five to ten years old and living with his sister, L.S., who was five years older and their mother, S.S. at Mr. Quesnelle’s residence. By all accounts, D.S. has had a troubled life. He had difficulties in elementary school requiring relocation to another school. He told the court that by 13, he was experimenting with alcohol and by 18, he was an alcohol, drinking heavily until he was about 26. He has a criminal record which started in Youth Court and he has an adult record for fraud, public mischief, threatening and assault. He has received probation, suspended sentences or conditional sentences from these various offences. He told the court that he turned his life around in September of 2009 when he became sober. He told the court that alcohol abuse was a factor in these incidents leading to arrests and he pleaded guilty when these matters came before the court. He has recently earned a college diploma in addictions and community service as a community service worker and works part-time for the Salvation Army Men’s Mission. He has had no contact with Mr. Quesnelle since leaving the Quesnelle cottage when he was 10. D.S. told the court that he was on

anti-anxiety medication at the time of the trial.

L.S.

L.S. is D.S.’ older sister. She was 35 at the time of the trial. She was between 10 and 15 years old when she resided with her brother and her mother at Mr. Quesnelle’s cottage. She has no criminal record and is not a complainant with respect to the charges before the court. She is employed as a property manager. However, her evidence provided context for life in the Quesnelle residence and provided some aspects of corroboration for some of the evidence given by her brother, D.S., and her mother, S.S.. She has had no contact with Mr. Quesnelle since leaving the Quesnelle cottage at age 15 except for a brief exchange at a wedding she attended years later.

S.S.

At the time of the trial, S.S. was 56. She was about 31 when she moved into Mr. Quesnelle’s cottage in Bailieboro with her two children, D.S. and L.S.. She has a criminal record for fraud and for assault. Both defence counsel and Crown counsel suggested that her evidence be considered with a great deal of caution. Defence counsel suggested her evidence be rejected in its entirety and Crown counsel suggested that it should be approached with a “Vetrovec”-like caution. The jurisprudence flowing from the Supreme Court of Canada’s decision in R. v. Vetrovec, 1982 20 (SCC), [1982] 1 S.C.R. 811 assists triers of fact with a warning when assessing evidence from certain witnesses including those that:

.have a lengthy criminal record;

.have a motive to lie;

.have provided different accounts on different occasions;

.or have lied under oath.

A couple of examples of her evidence will illustrate the point. She told the court she was injured in an automobile accident and suffered 157 fractures. When confronted with the hospital admissions report indicating that there were no fractures, she maintained a position which was obviously untenable, insisting that someone told her she had 157 fractures. She told the court about numerous guns that Mr. Quesnelle had in the house. She told the court that the police came on one occasion and she showed these guns to a police officer. However, she could not explain to the court why Mr. Quesnelle was not arrested and why no guns were removed from the house as a result of her alleged report. In addition, there were numerous inconsistencies between her evidence at court and her previous statements to the police or at the preliminary hearing. Under the circumstances, I approach her evidence with caution and I look for corroboration from the evidence of D.S. or L.S.. I found their evidence to be much more reliable and trustworthy.

Life at the Quesnelle cottage started out amiably at first but over time, Mr. Quesnelle became controlling, both physically and emotionally, of S.S. and her two children. At five foot seven and 300 pounds, he was physically imposing. In addition, he controlled many aspects of household life. At first, S.S. had no car and was dependent on him for transportation. Over time, he purchased a car for her, but she was not allowed to take the car outside of Peterborough County. D.S., looking back as a young person of five to ten years of age, described him as bossy and mean. He gave specific examples of physical abuse by against him by Mr. Quesnelle. I will describe those in more detail when I review the counts. Mr. Quesnelle required members of the family to shower together, ostensibly to save water. D.S. says that the sexual assaults that he was subject to by Mr. Quesnelle occurred in the shower, primarily, and on a regular basis. D.S. recalled specific incidents of physical abuse by Mr. Quesnelle. On one occasion, he recalled being picked up and thrown in the air, only to land on the ground because Mr. Quesnelle had seen him doing the same thing to a frog. On another occasion, he recalled being hit and injured on his buttocks when Mr. Quesnelle hit him with a board with a nail in it. On another occasion, he recalled when Mr. Quesnelle struck him on the back with a hockey stick. On another occasion, he recalled that Mr. Quesnelle made him run away from him while Mr. Quesnelle discharged a gun overhead.

D.S. saw Mr. Quesnelle in the role of a stepfather.

Both D.S. and L.S. told the court that they were awakened in the morning by Mr. Quesnelle when he used a bugle or a siren and this became normal practice. He also recalled arguments between his mother and Mr. Quesnelle and, on one occasion, Mr. Quesnelle threw a brick at her car window. He recalled that they moved out of the Quesnelle cottage on one occasion and lived in a basement apartment. D.S. recalled an incident at school where he may have said something to a teacher about problems at home. A meeting was called with the school and CAS and D.S. recalled that Mr. Quesnelle told him not to say anything or he would get in trouble. At the meeting, D.S. recanted his allegations and the file was closed. However, he told the court that he received a beating from Mr. Quesnelle after that event. D.S. recalled an argument in the living room when he saw his mother thrown across the room by Mr. Quesnelle. He recalled Mr. Quesnelle often walking around the house naked and this was verified by L.S. who was between 10 and 15 years at the time.

But D.S. fairly indicated that not all life at the Quesnelle cottage was bad. As he stated in his evidence:

Like I said, it wasn’t always bad.

There were some good times when I

felt normal, you know, like we’d

have trips on the boat or, you

know, we’d do stuff like that. I

felt normal, you know, but I was

always nervous. So, it wasn’t

always bad. There were some good

times.

[The remainder of the judgment continues verbatim with the same formatting and content as provided in the source HTML, including the analysis of counts, legal principles, verdicts on each count, and the concluding transcript certification.]