2014 QCCA 817, 2014 QCCA 817

Tshitenge Masuku c. R. 2014 QCCA 817 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005097-124 (500-01-033868-099) DATE: APRIL 17, 2014 PRESIDING: THE HONOURABLE MR. JUSTICE ALLAN R. HILTON PATRICK TSHITENGE MASUKU PETITIONER - Accused v. HER MAJESTY THE QUEEN RESPONDENT - Prosecutrix JUDGMENT [ 1 ] Patrick Tshitenge Masuku seeks to extend the time to appeal the judgment of the Superior Court rendered on January 10, 2012 by the Honourable Mr.

Justice Michael Stober (subsection 678(2) Cr.C. ) sentencing to him life imprisonment with ineligibility for parole until he had served 14 years of his sentence following his conviction for second degree murder by a Superior Court jury on October 7, 2011. [ 2 ] The motion before me is dated April 25, 2012, and it was preceded by motions to a similar effect dated February 10 and February 25, 2012 brought pursuant to subsection 675(1) Cr.C. None of the motions could be heard since all of the materials necessary for their examination did not accompany them.

It was only in the last short while that those materials were filed. [ 3 ] The applicant explains the first delay in his most recent motion by the lack of diligence of his prior attorney, and argues that he should not be penalized for that lack of diligence.

As far as the second period between February 25, 2012 and the date of hearing on April 14, 2014 is concerned, it is attributed to the presence of the applicant's attorney at an international war crimes trial and all that is required in the execution of such a mandate. [ 4 ] I am satisfied that the reasons for the delays have been adequately justified, although a greater attention to detail and the requirements of the Court to adjudicate such motions undoubtedly would have shortened them. [ 5 ] The sentencing judgment contains a thorough analysis of the circumstances of the crime as well as the aggravating and mitigating factors in play.

It also recounts the applicant's position with respect to the period of parole ineligibility, including his having been subject to violence as a youth in the Congo before emigrating to Canada, as well as reference to his statement on a video of a police interview that formed part of the evidence at trial in which he acknowledged that he had caused the death of the victim by the infliction of several knife wounds, but attributed his conduct to intoxication. [ 6 ] The applicant did not testify at trial, but did so at the sentencing hearing, and reiterated his position to explain the circumstances that led to the victim's death.

He also expressed admiration for the victim and remorse for what he had done to end his life. The trial judge noted in this respect that no one from the applicant's family or any other person testified on his behalf at the sentencing hearing. [ 7 ] He also took account of the significant impact of the death of the victim on members of his family who were frequently present in court during the trial.

As the trial judge put it, "…it is clear that the victim's family has been traumatized and forever affected by this senseless loss of a loved one". [ 8 ] Finally, the trial judge enumerated the extensive criminal record the accused had accumulated in youth court and adult court in Alberta, as well as adult court in Montreal since his arrival here. Suffice it to say the applicant is no stranger to the Canadian criminal justice system.

He had already served terms of incarceration, and several of the offences for which he was convicted involved crimes of violence, including the possession of concealed weapons, the possession of a restricted or prohibited weapon and uttering death threats. [ 9 ] The Crown submitted that the applicant's period of ineligibility for parole should be fixed at 13-14 years, while counsel for the applicant suggested a term of 11-12 years. [ 10 ] The trial judge considered the governing principles relating to the determination of a period of parole ineligibility and analysed the undisputed facts in light of those principles.

He was particularly unsympathetic to the argument that the applicant's conduct could be explained by intoxication, since it was rejected by the jury that found him guilty of second degree murder, and was contrary to the testimony of those who were present at the scene of the crime and prior thereto at his residence.

[ 11 ] The grounds of appeal the applicant seeks to invoke are as follows: 6.1. The Honourable first judge erred in law in considering that the Appellant's remorse at the hearing on sentence had a negative bearing on the Appellant's behaviour because he continued to explain his actions as not voluntary and offence as "manslaughter"; 6.2. The Honourable first judge erred in his appreciation of the Appellant's character, in particular when he set aside the violent traumatic experience the Appellant lived in Congo, his young age and his cooperation with the police; 6.3.

The Honourable first judge erred in considering that the circumstances of the offence justified a higher period of ineligibility to parole, as the offence was not planned and was committed when the Appellant was under the influence of alcohol; 6.4. The Honourable first judge erred in his application of the law when he considered "public's future exposure to danger in the event that the accused is release", which is rather the role of a Parole Board to determine at the end of the period of ineligibility; 6.5.

No exceptional circumstances militate for the imposition of a significant raise in the minimum period of ineligibility to parole provided for this king of offence; [ 12 ] The criteria I must consider are those set out by Fish, J.A., then a judge of this Court, in Lamontange v.

The Queen : To succeed on an application for extension of delays, the applicant must normally establish: (1) an intention to appeal while the right of appeal existed; (2) arguable grounds of appeal; (3) reasonable diligence in seeking to exercise the right to appeal within the prescribed time. [1] [ 13 ] For the reasons I have previously indicated, I am satisfied that the applicant satisfies the first and third criteria.

Any delay in the exercise of his rights, especially after the service of the initial motion, was not the result of any lack of diligence on his part, but rather, was caused by the lack of diligence of his counsel. In such circumstances, it would be unjust to attribute the omissions of his counsel to him. There is nothing in the record before me that suggests that any of these unusual delays were attributable to the applicant. [ 14 ] As is the case with many such applications, the real issue is whether the applicant has asserted arguable grounds of appeal.

In this respect, I am mindful of the very thorough and careful reasons of the trial judge, as well as the Supreme Court of Canada's oft-stated constraints on appellate intervention in sentence appeals. [2] I am also sensitive to the position the applicant adopted before the trial judge as to the proposed duration of the period of ineligibility for parole, in which he acknowledged that his case was one that justified the establishment of such a period that exceeded the minimum of 10 years provided by law. [3] [ 15 ] Nevertheless, the threshold of what constitutes arguable grounds of appeal is not a particularly high one, [4] and a decision to defer the motion to a panel or indeed to grant leave is no precursor to success on the merits. [ 16 ] Given the serious consequences to the applicant of a 14 year period of ineligibility for parole, in my view it is preferable that the disposition of his motion be determined ultimately by a panel of the Court rather than by a judge in chambers.

FOR THESE REASONS, THE UNDERSIGNED : [ 17 ] DEFERS the motion for leave to appeal to a panel of the Court; [ 18 ] ORDERS that the hearing of the applicant's motion be joined to his appeal from conviction (case number 500-10-005092-125) in which leave is being granted concurrently; [ 19 ] REFERS the case to the Master of the Rolls for the establishment of a timetable for the conduct of the two appeals and a date of hearing; [ 20 ] ORDERS that the aforesaid timetable contemplate the filing of the applicant's factums in both appeals on the same date; [ 21 ] ORDERS that the aforesaid timetable contemplate the filing of the respondent's factums in both appeals 60 days after the date of filing for the applicant's factums in both appeals.

ALLAN R. HILTON, J.A. Mtre Véronique Talbot VÉRONIQUE TALBOT AVOCATE For the petitioner Mtre Alexandre Boucher CRIMINAL AND PENAL PROSECUTING ATTORNEY For the respondent Date of hearing: April 14, 2014