Les déclarations antérieures compatibles sont en principe inadmissibles, mais il existe 3 exceptions permettant leur admissibilité

R. v. Khan, 2017 ONCA 114

Lien vers la décision

[25] Prior consistent statements are presumptively inadmissible because they lack probative value: R. v. Stirling, [2008] 1 S.C.R. 272, [2008] S.C.J. No. 10, 2008 SCC 10, at paras. 5-7. The fact that someone said the same thing on a prior occasion to what he/she has said in court is, generally speaking, not probative of whether the witness is offering truthful testimony in court. It would be self-serving to allow a witness to buttress his or her own testimony with her own prior statements.

[26] As Watt J.A. noted in C. (M.), at para. 59, citing Paciocco, at p. 184, prior consistent statements are an amalgam of two elements -- the hearsay element and the declaration element. The hearsay rule takes care of the hearsay element. The prior consistent statement rules generally exclude the declaration [page528] element. Where admissible, the declaration element is proof that a statement was made, and allows a trier of fact to derive appropriate inferences from the fact and context in which the statement was made: Paciocco, at p. 184.

[27] The common law recognizes a number of exceptions to the basic rule that prior consistent statements are inadmissible. When a prior consistent statement is admissible pursuant to one of these exceptions, it is admissible for limited purposes, and those purposes differ among exceptions.

[28] For example, where a prior consistent statement is admitted to rebut an allegation of recent fabrication, it is admitted solely to provide a direct response to the suggestion that the witness concocted allegations after a triggering event. The statement is not admitted for the truth of its contents, but only to show that the details were not added after the point in time suggested by opposing counsel.

[29] Other recognized exceptions include admitting prior consistent statements as pure narrative evidence, and narrative as circumstantial evidence: Paciocco, at p. 182.

[30] As pure narrative, prior consistent statements carry no weight because they are tendered simply to give the background to explain how the complaint came to be before the court. This court described the pure narrative exception in R. v. F. (J.E.) (1993), 1993 CanLII 3384 (ON CA), 16 O.R. (3d) 1, [1993] O.J. No. 2589 (C.A.), as allowing the decision maker to understand the "chronological cohesion" of the case. The statement is not used to prove the truth of its contents, nor are there any inferences arising that would make the case of one person more compelling than that of another. It is merely an aid in understanding the case as a whole.

[31] But sometimes the circumstances surrounding the making of the prior consistent statement are such that the statement assists in assessing the reliability and credibility of a witness' in-court testimony, giving prior consistent statements admitted as "narrative" a more substantive use: R. v. Dinardo, [2008] 1 S.C.R. 788, [2008] S.C.J. No. 24, 2008 SCC 24, at para. 39; R. v. Evans, 1993 CanLII 102 (SCC), [1993] 2 S.C.R. 629, [1993] S.C.J. No. 30, at para. 32. This is referred to as narrative as circumstantial evidence.

[32] In R. v. C. (G.), 2006 CanLII 18984 (ON CA), [2006] O.J. No. 2245, 2006 CarswellOnt 3413 (C.A.), at para. 22, Rouleau J.A. identified the limited way in which prior consistent statements can be used to assist the trier of fact in assessing the cogency, and therefore the reliability and credibility, of a witness:

In cases involving sexual assault of young children, the courts recognize the difficulty in the victim providing a full account of events. In appropriate [page529] cases, the way the complaint comes forth can, by adding or detracting from the logical cogency of the child's evidence, be a useful tool in assisting the trial judge in the assessment of the child's truthfulness.

[33] While Rouleau J.A. was discussing the use of prior consistent statements to assess the reliability and credibility of young children, there is no reason why the principle should be so restricted. In the appropriate case, prior consistent statements can be useful tools in assisting a trial judge in the assessment of the truthfulness or reliability of the declarant, whatever their age: C. (M.), at para. 66; R. v. Curto, [2008] O.J. No. 889, 2008 ONCA 161, 230 C.C.C. (3d) 145, at para. 37.

[34] As this court noted in Curto, at para. 34, it will not always be necessary to know why or how the case came to the attention of the police; however, the fact that a statement was made, and the context in which the statement is made, can be probative and help in assessing a witness' credibility.

[35] The line between the permissible and impermissible uses of prior consistent statements is a fine one, as noted by the Supreme Court of Canada. In Dinardo, the prior consistent statements of an intellectually disabled complainant were, at trial, used to corroborate her in-court testimony. The Quebec Court of Appeal held that the trial judge erred in using the complainant's prior consistent statements to corroborate her evidence that the crime had been committed. The Supreme Court of Canada agreed and highlighted the distinction between the permissible and impermissible use of prior consistent statements. Charron J. stated, at para. 37:

In some circumstances, prior consistent statements may be admissible as part of the narrative. Once admitted, the statements may be used for the limited purpose of helping the trier of fact to understand how the complainant's story was initially disclosed. The challenge is to distinguish between "using narrative evidence for the impermissible purpose of aeconfirm[ing] the truthfulness of the sworn allegation'" and "using narrative evidence for the permissible purpose of showing the fact and timing of a complaint, which may then assist the trier of fact in the assessment of the truthfulness or credibility".

(Emphasis added; citations omitted)

[36] Charron J. cited this court's decision in C. (G.), in which Rouleau J.A. stated, at para. 20:

. . . the evidence of prior complaint cannot be used as a form of self-corroboration to prove that the incident in fact occurred. It cannot be used as evidence of the truth of its contents. However, the evidence can "be supportive of the central allegation in the sense of creating a logical framework for its presentation . . . and can be used in assessing the truthfulness of the complainant. [page530]

[37] In this case, while the trial judge did not expressly refer to the narrative as circumstantial evidence exception, it is clear from his reasons that it was through this lens that he considered the admissibility of the complainant's statement. The trial judge stated [see 2015 ONSC 7187 (CanLII), [2015] O.J. No. 6200, at para. 13]:

Having touched on the issue of an allegation of fabrication by the defence, I would also admit the statement as a prior statement of [the complainant] as relevant and capable of assisting the trier of fact in determining a fact in issue and the credibility of [the complainant], it having been put squarely in issue that she fabricated her evidence.

Such admission has the capacity to impact positively, where admission of the statement directly addresses the allegation of fabrication, as but one factor to be taken into account as part of the larger assessment of credibility.

[38] The summary conviction appeal judge addressed the admissibility of the statement as a prior consistent statement very briefly, stating, at para. 14:

In Khan, the court does address circumstances in which a prior consistent statement may be admissible; however, these relate to cases involving child complainants and the evidentiary challenges associated with their testimony.

[39] The summary conviction appeal judge also failed to address the basis upon which the trial judge admitted the statement as a prior consistent statement, which, in large part, drove the court's ultimate conclusion that the statement was misused. In particular, and as noted above, in some cases a prior statement has independent cogency, and is not used merely to support the testimony of the witness by duplication. A prior consistent statement can be used not to corroborate the evidence of the witness, but to provide the surrounding circumstances and context to evaluate the credibility and reliability of the witness' in-court testimony: F. (J.E.), at para. 89.

[40] It is the "declaration part" of the prior consistent statement that is relevant and leads to permissible circumstantial inferences. Given the circumstances in which the complainant made her statement in this case, the trial judge did not err in admitting the statement under the narrative as circumstantial evidence exception to the prior consistent statement rule.

D. Use of the statement

[41] Although the statement was admissible under the narrative as circumstantial evidence exception to the rule against prior consistent statements, such evidence cannot be used for the prohibited inference that consistency enhances credibility, or the incorrect conclusion that the simple making of a prior [page531] consistent statement corroborates in-court testimony: Paciocco, at p. 199.

[42] The summary conviction appeal judge concluded that the trial judge had used the prior consistent statement in this impermissible way, stating, at para. 15:

The trial judge used the prior consistent statement for the truth of its contents. This is highlighted where he states that it showed "the consistency of her complaint" and "it assisted the court in determining the overall credibility in a positive way." The trial judge appears to have relied on the prior consistent statement as a foundational pillar for his decision. The use of the prior consistent statement in this way illustrates the reasons why a prior consistent statement is presumptively inadmissible. Just because a witness says the same thing twice does not mean that she is more likely to be telling the truth. The trial judge made an error in the treatment of an important piece of evidence which appears to have informed his conclusion.

[43] In my view, taking the reasons as a whole, the trial judge used the prior consistent statement for the permissible purpose of evaluating the context in which the initial complaint arose, in particular the fact and timing of the complaint, and the spontaneous nature in which it came out, in order to assist him in assessing the truthfulness of the complainant's in-court testimony. While some of the trial judge's language was not ideal, his phraseology must be put in context. In referring to the "consistency of her complaint", the trial judge stated:

[The statement's] spontaneity and the context in which it was made, are capable of, and do support her credibility and the consistency of her complaint. In short, the court finds her evidence credible.

In the court's view, the spontaneity of that statement is compelling, and also assists the court in determining the overall credibility of [the complainant], and impacts upon her credibility in a positive way.

[44] The trial judge properly placed the prior consistent statement on the scale in assessing the credibility of the complainant's in-court testimony by considering the circumstances in which she made her initial complaint to Constable Flint. To this extent, the prior consistent statement does add to the credibility of the complainant's in-court testimony and had probative value beyond mere repetition. It was evidence of the sequence and timing of events and the emotional state of the complainant at the time of the utterance, and assisted the trial judge in evaluating the credibility of the complainant's in-court testimony. The trial judge's use of the prior consistent statement was proper.

Il est impossible de purger un emprisonnement dans la collectivité à l'extérieur du Canada

R. v. Laffin, 2018 QCCA 904

Lien vers la décision

[22]        There is not much case law directly on this question and the parties submitted none. There is, however, the case of R. v. Goett, 2012 ABCA 215, from the Court of Appeal of Alberta, apparently known to counsel for the respondent but surprisingly not mentioned in her appeal book. In Goett, the appellant sought to serve a CSO in Texas after pleading guilty to federal income tax offences. Goett, a 71-year old resident of Alberta at the time of the offences, had moved to the United States permanently, apparently seeking treatment for serious medical issues.

[23]        In Goett, the Court wrote at paragraph 14:

[14]      The sentencing judge correctly concluded that an Alberta court has no jurisdiction to order that a conditional sentence be served in Texas. The conditional sentence and Criminal Code procedures which govern it are completely statutory: R v Bailey, 2012 ABCA 165, [2012] AJ No 550. The Criminal Code speaks at length about territorial jurisdiction. It also defines those courts which are empowered under the Code. No foreign court is so identified. Sections 742.5 (1) and (1.1) provide for transfers of conditional sentence orders from one province or territory to another only where the Crown consents. There is no similar provision for the transfer of a conditional sentence to any other jurisdiction. Accordingly, there is no statutory authority to enable a Canadian court to ask a foreign court to administer a sentence imposed in Canada.

[My emphasis]

[24]        I agree. Contrary to the respondent, I fail to see how that finding would have been different if Mr. Goett had arranged to be supervised in Texas. I would add that a CSO requires an efficient method of bringing the offender before the court if he does not comply with the conditions of the order. In the context of an offender being abroad, it is difficult to imagine how this may be achieved other than by relying on the offender to surrender. One must not forget that, though it may result in an order that the offender serve a portion of the unexpired sentence in custody, a breach of a CSO condition is not an offence: s. 742.6 Cr.C. and consequently, extradition is not possible. Moreover, hearings on CSO breaches should be held promptly. Community safety and the administration of the sentence themselves give the matter a sense of urgency: see s. 742.6(10)(11)(13)(14) Cr.C.

[25]        I also rely on this passage from R. v. Greco, (2001) 2001 CanLII 8608 (ON CA), 159 C.C.C. (3d) 146 (C.A. Ont.), at paragraph 14:

[14]      For example, if a probationer commits a breach of the order while abroad and fails or refuses to voluntarily return to Canada, then, absent a right of extradition or some other co-operative arrangement with the foreign state, Canada would likely be powerless to bring the offender to justice. Likewise, if the “offensive conduct” abroad is conduct that the probationer is required to engage in or refrain from under the laws of the foreign state, prosecution in Canada could well constitute an affront to the requirements of inter-national comity and result in our courts declining jurisdiction.

[Internal reference omitted]

[26]        In Greco, it seems that Moldaver J.A. leaves open the possibility of a co‑operative arrangement with a foreign state, something that the Alberta Court of Appeal does not discuss in Goett. I do not need, however, to resolve the issue here because, firstly, there is no evidence of an agreement between Canada and the United States relating to the enforcement of a Canadian CSO and, secondly, it remains “that the principle of the sovereign equality of states generally prohibits extraterritorial application of domestic law”:  R. v. Cook, 1998 CanLII 802 (SCC), [1998] 2 S.C.R. 597, at para. 26.  Further, given that no offence is committed by a breach of a CSO condition, Canada is even more powerless to bring the offender to justice.

[27]        In sum, absent a statutory authority to enable a Canadian court to ask a foreign court to administer a sentence imposed in Canada and seeing no possibility of enforcement of the CSO, I would allow the appeal and set aside the illegal sentences.

Un manquement aux conditions d’une ordonnance de probation commis à l’étranger satisfait au critère du lien réel et important pour soumettre une infraction à la compétence des tribunaux canadiens

R. v. Greco, 2001 CanLII 8608 (ON CA)

Lien vers la décision

[13]         To begin, I know of no rule or principle of international law that would deprive a judge of the Ontario or Superior Court of Justice of jurisdiction to make a probation order binding the conduct of a probationer both at home and abroad. To be sure, the principle of "extraterritoriality", which is defined by James R. Fox in The Dictionary of International and Comparative Law (1997), at p. 47 as the "operation of laws upon persons or rights beyond the territorial limits of the state enacting such laws", may impact on Canada's ability to enforce such orders.

[14]         For example, if a probationer commits a breach of the order while abroad and fails or refuses to voluntarily return to Canada, then, absent a right of extradition or some other co-operative arrangement with the foreign state, Canada would likely be powerless to bring the offender to justice. Likewise, if the "offensive conduct" abroad is conduct that the probationer is required to engage in or refrain from under the laws of the foreign state, prosecution in Canada could well constitute an affront to the requirements of international comity and result in our courts declining jurisdiction. [1]

[15]         But these limitations on the ability of the court to enforce its orders should not be confused with the jurisdiction of the court in the first instance to prescribe orders that bind the conduct of probationers both at home and abroad. In my view, the distinction is an important one and it is essential to a proper understanding of the principle of territoriality. That principle, sometimes referred to as the principle of "the sovereign equality of states", is succinctly summarized by Cory and Iacobucci JJ. at p. 17 of their majority opinion in R. v. Cook (1998), 1998 CanLII 802 (SCC), 128 C.C.C. (3d) 1 (S.C.C.): [2]

… In essence, the principle of the sovereign equality of states generally prohibits extraterritorial application of domestic law since, in most instances, the exercise of jurisdiction beyond a state's territorial limits would constitute an interference under international law with the exclusive jurisdiction of another state.                                                                      

[16]         The principle of territoriality is also discussed at some length by Bastarache J. in his concurring reasons in Cook. In the course of that discussion, at pp. 55 and 56, he identifies and explains the important distinction to which I have referred between "jurisdiction to enforce" and "jurisdiction to prescribe":

Any discussion of territoriality begins with the fundamental distinction between a purported enforcement of domestic law in the territory of a foreign state (jurisdiction to enforce), and an attempt to give effect in domestic law to actions, people or things outside of the territory governed by domestic law (jurisdiction to prescribe). Attempts to enforce domestic law directly in the territory of a foreign state are prohibited in all but the most exceptional circumstances. In the words of Professor Brownlie, discussing "Extra-territortorial Enforcement Measures":

The governing principle is that a state cannot take measures on the territory of another state by way of enforcement of national laws without the consent of the latter. Persons may not be arrested, a summons may not be served, police or tax investigations may not be mounted, orders for production of documents may not be executed, on the territory of another state, except under the terms of a treaty or other consent given.

See Ian Brownlie, Principles of Public International Law (4^th ed. 1990), p. 307. It was in this sense that the Permanent Court of International Justice observed in The case of the S.S. "Lotus" (1927), P.C.I.J. Ser. A, No. 9, pp. 18-19:

Now the first and foremost restriction imposed by international law upon a State is that - failing the existence of a permissive rule to the contrary - it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention.

But in the very next sentence, at p. 19, the International Court makes it very clear that the term "territoriality" has an entirely different meaning where a legal system merely purports to prescribe effects within its own legal system to events taking place abroad:

It does not, however, follow that international law prohibits a State from exercising a jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and their jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to this general prohibition, it allowed States to do so in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable.

These two passages clearly illustrate the gulf that separates the principle of territoriality with regard to the jurisdiction to enforce, and territoriality as it might constrain the prescription of juridical consequences within the domestic legal system. [Emphasis added.]

[17]         Although Bastarache J. was speaking only for himself and Gonthier J., I do not understand the majority to take exception with the general principles outlined in the passage above. Those principles make it clear that subject to certain limitations, a state can extend the application of its laws and the jurisdiction of its courts to persons, property and acts outside of its territory without offending against the principle of territoriality. That of course, explains the various provisions of the Criminal Code in which Canada has asserted jurisdiction over persons who commit certain offences outside of Canada. [3] Those provisions are necessary because without them, s. 6(2) of the Code would preclude convictions or findings of guilt for offences committed outside of Canada. But for present purposes, just as there is nothing in the principle of territoriality that prevents Canada from enacting laws enforceable in Canada that govern the conduct of persons outside of its territory, the principle of territoriality does not prevent courts from issuing orders, enforceable locally, that govern conduct outside of Canada.

[18]         Nor does anything in the Criminal Code or any other relevant statute preclude a probation order that governs conduct outside of Canada. Manifestly, in light of s. 6(2) of the Code, the fact that probationers may be bound by the terms of their probation orders while abroad will be of no consequence if it cannot otherwise be established that the offence of breach of probation was committed in Canada. That however, is the subject of the second issue on appeal and it should not be confused with the issue at hand.

[19]         In support of his position that probation orders only bind the conduct of probationers while in Canada and not elsewhere, the appellant relies on s. 733.1(2) of the Criminal Code which reads as follows:

An accused who is charged with an offence under subsection (1) [breach of probation] may be tried and punished by any court having jurisdiction to try that offence in the place where the offence is alleged to have been committed or in the place where the accused is found, is arrested or is in custody, but where the place where the accused is found, is arrested or is in custody is outside the province in which the offence is alleged to have been committed, no proceedings in respect of that offence shall be instituted in that place without the consent of the Attorney General of that province.

[20]         The appellant submits that in enacting that provision, Parliament showed deference to the principle of territoriality by making it clear that probation orders are only meant to bind the conduct of probationers in Canada and not elsewhere. With respect, I disagree with that interpretation.

[21]         Section 733.1(2) does not speak one way or the other to the question whether probation orders bind the conduct of probationers while abroad as well as in Canada. Rather, it speaks to what court in Canada has jurisdiction over an accused charged with breach of probation. In other words, it deals with venue, not the reach of probation orders. The first part of the provision simply reaffirms the common law principle that jurisdiction is territorial and in the case of breach of probation, an offender may be tried and punished by a court of competent jurisdiction "in the place where the offence is alleged to have been committed". The second part of the provision broadens the jurisdictional ambit by providing that offenders can be tried and punished for the offence of breach of probation by a court of competent jurisdiction in any province where they are found, arrested or in custody, with the consent of that province's Attorney General, even though the offence itself was not committed in that province.

[22]         There is nothing in s. 733.1(2) to suggest that the offence is committed solely in the place where the conduct forming the breach occurred. Indeed, if anything, I read s. 733.1(2) as recognizing, at least implicitly, that the offence of breach of probation can be committed in more than one province, including the province where the order is made and the province where the conduct forming the breach occurred. For present purposes, however, suffice it to say that just as s. 6(2) of the Criminal Code is not dispositive of the issue whether probation orders bind the conduct of probationers outside of Canada, the same applies to s. 733.1(2) of the Code.

[23]         It follows, in my view, that there is no basis in international or domestic law for concluding that a judge of the Ontario or Superior Court of Justice lacks the jurisdiction to issue a probation order, enforceable in Canada, that binds the conduct of probationers both at home and abroad.

[24]         Nor, in my view, are there policy reasons for coming to a different conclusion. The notion that probationers are only bound by the terms and conditions of their probation orders while in Canada and that they can ignore or circumvent such orders with impunity by setting foot across the border is one that I refuse to accept. Apart from being illogical, I can see no justification for it once it is accepted that the requirements of comity remain sacrosanct and that Canadian courts will decline jurisdiction in cases where to do otherwise would result in a contravention of those requirements.

[25]         Policy considerations strongly favour an interpretation that makes the order binding on probationers regardless of where they happen to be. As this case vividly demonstrates, conduct outside of Canada in breach of a probation order made in Canada can have a serious and immediate impact within Canada. The treatment, protection and safety of the victim of this assault who lives in Canada are legitimate concerns of the Canadian criminal justice system. It is entirely consistent with those concerns that persons within the reach of Canadian courts be held to account for breaching an order made in Canada.

[26]         From a practical point of view, treating probation orders as if they were light bulbs that can be switched on and off depending on the location of the probationer, gives rise to logistical problems and fairness concerns. If probation orders cease to apply to probationers when they cross the border, then courts, probation officers and probationers alike would be faced with the logistical nightmare of having to keep track of the precise number of days or part days on which the order is operative and the days on which it is not.  In oral argument, counsel for the appellant conceded, correctly in my view, that were a probationer only bound by a probation order when in Canada, then the clock would stop ticking and the order would cease to run when the probationer left Canada.

[27]         Even more troublesome is the unfairness this would occasion to those probationers who, for legitimate work, family or treatment related reasons, are required to be outside of Canada during the period of probation. If the appellant is right, such probationers, though in complete compliance with the terms of their probation orders while outside of Canada, would nonetheless receive no credit for such periods of time and the length of their probationary period would be extended accordingly. For my part, I see no reason why compliant probationers should be prejudiced in that way.

[28]         For these reasons, I am satisfied that the courts of this province have the authority to make probation orders, enforceable locally, that bind the conduct of probationers both at home and abroad. The only remaining question is whether to be effective abroad, the probation order must contain an express provision to that effect. In my view, it need not.

[29]         I think that a common sense inference can and should be drawn that, subject to the requirements of comity, probation orders are meant to apply to probationers at all times wherever they might be, absent a specific term to the contrary. In this respect, I agree with Lampkin J. that a probation order is an order made in respect of a particular individual and so long as it remains in force, it attaches to that individual wherever he or she may go.

[30]         The territorial reach of a probation order, like any other court order, is a matter of interpretation. The language of the order and the policies served by the order must be considered.

[31]         The order in the present case contains no reference to its territorial scope. This silence provides no assistance as to the reach of the order. There is no suggestion that the question of whether the order should apply to conduct outside of Canada was canvassed when the order was made. As there is no presumption that an order applies only to conduct within Canada, the absence of any express reference in this probation order to its territorial reach is not indicative of any limitation on that reach. Certainly, there is nothing inherent in the nature of the term breached in this case (to keep the peace and be of good behaviour) that would suggest a territorial limitation.

[32]         In sum, I am satisfied that the appellant was required to comply with the terms and conditions of his May 7, 1997 probation order while in Cuba. Accordingly, I would answer issue one in the affirmative.

L’analyse de contradictions n’est pas mathématique et le nombre, quoique toujours sujet à préoccupation, n’est pas en soi un motif de rejet du témoignage

LSJPA — 195, 2019 QCCA 379

Lien vers la décision

[51]        Il est vrai que le juge ne mentionne pas toutes ces contradictions dans son jugement. Par contre, l’intimée a raison de dire que chacune des contradictions n’a pas à être soulevée et expliquée dans les motifs du jugement : R. c. Savard, 2017 CSC 21 (CanLII), [2017] 1 R.C.S. 400, confirmant sommairement 2016 QCCA 380, par. 79; R. c. J.M.H., 2011 CSC 45 (CanLII), [2011] 3 RCS 197, par. 31-32; R. c. R.E.M., 2008 CSC 51 (CanLII), [2008] 3 R.C.S. 3, par. 56. Il est également indéniable qu’un témoin peut n’être cru qu’en partie, comme c’est le cas ici. J’ajoute que dans une affaire où les détails et les discordances sont très nombreux, comme c’est le cas ici, l’exercice d’écriture sera nécessairement imparfait.

[52]        Aussi, le juge note que devant « une multitude d'événements si considérable, il est plausible, voire humain, [que la plaignante] puisse de bonne foi avoir confondu les circonstances d'un événement avec un autre ». En s’attardant ainsi à l’unique témoignage de la plaignante, qui s’est étalé sur quatre jours, les appelants font fi, contrairement au juge, d’une évaluation globale de la preuve. Ici, le juge a accepté en grande partie le témoignage de la plaignante en expliquant pourquoi de manière satisfaisante. S’il fallait conclure que le juge a effectivement omis de tenir compte de certaines contradictions dans son raisonnement, et je ne dis pas que cela est le cas, les appelants ne démontrent pas en quoi cela serait déterminant.

[53]        L’analyse de contradictions n’est pas mathématique et le nombre, quoique toujours sujet à préoccupation, n’est pas en soi un motif de rejet du témoignage.

[54]        Il ne fait aucun doute, je le répète, que la plaignante était un témoin difficile dans le sens où plusieurs faiblesses pouvaient influer sur sa fiabilité, voire sa crédibilité. Évidemment, ces questions relèvent avant tout du juge du procès, à moins d’erreur manifeste et déterminante.

[55]        Or, la lecture des notes démontre que les contre-interrogatoires ont été méticuleux, faisant ressortir l’ensemble des contradictions, voire des invraisemblances qui, à première vue, affaiblissent la fiabilité du récit de la plaignante. Il est également indiscutable que le juge était attentif à la preuve qui se déroulait devant lui, comme le révèlent ses interventions et ses nombreux échanges avec les avocats.

La dissuasion générale et la dénonciation sont les grands principes dont il faut tenir compte dans la détermination de la peine des trafiquants de drogue

R. c. Voong, 2015 BCCA 285

Lien vers la décision

[16]         Notre Cour a récemment analysé la gravité de l’infraction de « vente de drogue sur appel » dans R. c. Oates, 2015 BCCA 25, aux paragraphes 19 et 20, citant la décision du juge Henderson dans R. c. Franklin, 2001 BCSC 706. Un client compose un numéro de téléphone cellulaire, passe sa commande, puis le revendeur se rend à un endroit où la vente de drogue doit avoir lieu. Autrement dit, la drogue s’obtient aussi facilement que si elle était livrée à domicile. Ce type de trafic est particulièrement insidieux et permet au commerce de la drogue de s’infiltrer davantage dans les collectivités.

[17]        Dans l’affaire Franklin, le juge Henderson a souligné la facilité d’accès aux drogues qu’offre le modèle de vente par téléphone. Il a conclu que la vente de drogue sur appel nécessitait une prévoyance et une planification − un véhicule, un téléphone cellulaire, un fournisseur de drogues et la diffusion du renseignement selon lequel on peut se procurer de la drogue à ce numéro de téléphone. À son avis, la dissuasion générale joue un rôle important dans la détermination de la peine des personnes impliquées dans ce type d’infraction.

[18]        Notre Cour a déclaré à plusieurs reprises que la dissuasion générale et la dénonciation sont les grands principes dont il faut tenir compte dans la détermination de la peine des trafiquants de drogue. Bien qu’aucun principe ne « prime » l’autre, il y a des infractions et des circonstances qui font ressortir un ou plusieurs principes auxquels on accordera généralement plus de poids qu’aux autres.