The incriminating statement of a transgender defendant was dismissed by the Court of Quebec because the police officer who questioned him used the wrong pronouns to refer to him and asked him personal questions.
The behavior of the policewoman from the Service de police de la Ville de Montréal (SPVM) oppressed the accused and should shock the public, judge Salvatore Mascia concluded. The defense said it was “very pleasantly surprised” by the decision, a first in Quebec.
“The police conduct – the misgendering and inappropriate questioning – had the effect of undermining the defendant’s ability to assert his right to silence,” the magistrate wrote in a decision, the written version of which has just been made public. , but rendered orally last December.
The only solution: disregard his statement to the police. The Crown then quickly dropped the charges and an acquittal was entered.
The Montreal apartment rented by Dimitri Lévesque – whose legal first name is Audrey – was the scene of a fire on December 11, 2018. The SPVM suspected Mr. Lévesque of having voluntarily left a cardboard box on his stove on and d having left the premises.
He was met the day after the events at a police station and questioned for approximately two and a half hours.
During this period, Detective Sergeant Viau, in charge of the investigation, referred to him 50 times with feminine pronouns or words, while Mr. Lévesque identifies himself as a man.
However, it should be noted that the accused’s legal first name at the time of the interview was “Audrey”. There was no document (and even no information) indicating that the defendant identified himself with another first name. “To this is added the fact that the physical appearance of the accused – despite the fact that he was undergoing hormone treatment (testosterone) – was always that of a woman”, nuances Judge Mascia, adding that Mr. Lévesque had never corrected her.
“The personal questions asked by the investigator to the accused were totally inappropriate, assessed the Court of Quebec. The accused did not show up at the police station for a social visit let alone to discuss his morals or sexual preferences. »
“Although the investigator did not intend to offend or humiliate the defendant, her conduct is nonetheless unacceptable,” the judge continued. “Common decency would have prevented any individual from interfering in the intimate details of the defendant’s life. »
Dimitri Lévesque always denied having started the fire during the interrogation, but got “in the wrong way”: he admitted that his door was locked at the crucial moment and that he was the only one who had the key.
Legally, the police enjoy wide latitude in how they conduct their interrogations. Detective Sergeant Viau, however, “exceeded the line”, according to the judge.
On the one hand, his remarks may have created a climate of “oppression” that forced Mr. Lévesque to speak, violating his right to remain silent, determined justice by repeating a criterion usually reserved for physically brutal interrogations or that include sleep deprivation, for example.
On the other hand, police behavior would “shock the community”, another criterion used by the judiciary to determine whether police techniques are acceptable.
“In a democratic society, the police must behave in accordance with the requirements of human dignity and individual freedom, ruled the Court of Quebec. Since the police failed in their duty, the Court has a moral obligation to denounce and distance itself from this behavior and concludes that the statement is inadmissible as evidence. »
Dimitri Lévesque’s lawyer said she was “very satisfied” with Judge Mascia’s decision. “I deeply believed that was not acceptable. When I listened to the statement in my office for the first time, I felt unwell,” said Me Aurore Brun, who works for legal aid.
Since this was a new scenario, which had never been the subject of a court decision, “you had to be creative and you had to believe in it a little bit,” she said, admitting in the same breath that she was far from convinced of winning.