2019 QCCA 154, 2019 QCCA 154

Javanmardi c. R. 2019 QCCA 154 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OFMONTREAL No: 500-10-005886-153 (500-01-013474-082) DATE: January 31, 2019 BEFORE THE HONOURABLE ROBERT M. MAINVILLE, J.A. MITRA JAVANMARDI APPLICANT — Accused v. HER MAJESTY THE QUEEN RESPONDENT — Prosecutrix and ATTORNEY GENERAL OF QUEBEC IMPLEADED PARTY — Impleaded party JUDGMENT [1] The applicant was charged in 2008 with criminal negligence causing death and manslaughter.

After a long trial, on April 8,2015, she was acquitted of both counts by a judge of the Court of Quebec. [2] On May 31, 2018, this Court (2018 QCCA 856) allowed the Crown’s appeal of these acquittals, substituted a guilty verdict onthe charge of manslaughter, remanded the matter to the Court of Quebec for the determination of a fit sentence, and ordered a new trialon the charge of criminal negligence causing death. [3] On June 28, 2018, the applicant filed with the Supreme Court of Canada an appeal as of right pursuant to par. 691(2)(

b) of theCriminal Code (“Cr.C.”) from the manslaughter verdict. She also filed an application pursuant to par. 691(2)

c) Cr.C. for leave to appealthe setting aside of her acquittal to the charge of criminal negligence causing death, which leave was granted by the Supreme Court ofCanada on December 6, 2018. The hearing of the appeals in the Supreme Court of Canada has been tentatively scheduled for May 15,2019. [4] On December 14, 2018, the applicant asked a judge of the Court of Quebec to stay the sentencing proceedings on themanslaughter verdict until the Supreme Court of Canada renders judgment. The judge found she was without jurisdiction to make suchan order.

The matter was then adjourned pro forma to February 5, 2019. [5] The record before me does not explain the reasons why a sentencing hearing has not yet been held since the judgment of thisCourt (May 31, 2018), eight months ago. * * * * * [6] The stay application was filed with the Court on January 17, 2019 and heard on January 24, 2018. The application is opposedby the Crown. [7] The applicant submits that

section 65.1 of the Supreme Court Act, R.S.C. 1985, c. S-26 applies to these proceedings and thatthe stay application is to be decided under the three-part test set out in the well-known decision of RJR-MacDonald v. Canada (A.G.). (SCC), [1994] 1 S.C.R. 311 (“RJR-MacDonald”): a serious issue to be determined, irreparable harm and the balance ofconvenience. [8] The applicant further submits that her appeals in the Supreme Court of Canada raise serious questions of law, a submissionwhich is not challenged by the Crown. [9] She adds that the sentencing hearing is likely to be lengthy and complex.

Since the trial judge has retired, the new Court ofQuebec judge which will be entrusted with determining the fit sentence will be required to read lengthy trial transcripts as well as tooversee a sentencing hearing in which up to sixty witnesses could be heard. The applicant recognizes that the number of witnesses maybe reduced should the parties agree to admissions and proceed by way of character reference letters, but in any event she expects thesentencing hearing to be long.

The stress and expense of such a hearing constitute, in the applicant’s opinion, irreparable harm, as is thepossibility of her being incarcerated, even though the Crown would agree, in this case, to an interim judicial release after sentencingpending the outcome in the Supreme Court of Canada.

[10] She also submits that the balance of convenience, including the public interest, favors the stay since such a measure wouldavoid a lengthy and perhaps useless sentencing hearing in the event the Supreme Court of Canada allows her appeals. [11] The applicant, through her attorney, has also agreed to waive any argument resulting from the delay in sentencing. [12] The Crown opposes the stay. It questions whether the test set out in RJR-MacDonald is appropriate in these circumstances. TheCrown recognizes that the applicant’s pending appeals before the Supreme Court of Canada raise serious questions of law.

However, likeany other individual found guilty of an offense, the Crown submits that the appropriate course of action is to proceed to sentencing assoon as possible. Once the fit sentence is determined, then the applicant could seek an interim release under par. 679(1)(

c) Cr.C., aprovision which specifically contemplates a possible release pending an appeal to the Supreme Court of Canada. The Crown wouldconsent in this case to such an interim release. [13] The Crown adds that the public interest commands that sentencing hearings be held in a timely manner after a finding of guilt.As for the duration of the sentencing hearing, the Crown is of the view that a hearing of a few days and at most one week will besufficient. * * * * * [14] Judges of this Court have often stayed proceedings in civil and administrative law disputes pursuant to

section 65.1 of theSupreme Court Act: see for example Peirera v. Commission des transports du Québec, 2016 QCCA 765, Construction De Castel inc. v.Directrice des poursuites criminelles et pénales, 2017 QCCA 1824; Ferme Brien & Fils inc. v. Fédération des producteurs agricoles duQuébec, 2007 QCCA 1337. They have also granted release from custody pending an appeal on a verdict to the Supreme Court ofCanada, as par. 679(1)(

c) Cr.C. empowers them to do once the sentence has been determined: see for example O’Reilly v. R., 2017QCCA 1413. They have also suspended the execution of a Criminal Code order pursuant to

section 261 Cr.C. or

section 65.1 of theSupreme Court Act (applying by analogy par. 683(5) Cr.C.) when the verdict is being appealed to the Supreme Court of Canada: see forexample R. v. Laganière., (QCCA); R. v. Ibanescu, 2012 QCCA 310; R. v. Piazza, 2018 QCCA 1127. [15] However, the only decision of this Court dealing with a stay of an actual sentencing hearing pending an appeal of a verdict tothe Supreme Court of Canada appears to be the recent decision of a judge of this Court in Blanchard c. R., 2018 QCCA 1436.

In thatcase, the Crown specifically consented to the stay and no discussion took place with respect to the applicable principles or theappropriate test. [16] It is well settled that an appeal from a guilty verdict does not and should not impede nor delay the determination of a fitsentence for the offense: R. v. D’Eri, (1972) (ON CA), 10 C.C.C. (2d) 252 (Ont. C.A.); R. v. Bassenden, (QC CA), [1989] R.L. 80 (Que. C.A.); R. v. Teskey, 2003 ABCA 26. As a matter of principle, delays in sentencing are to be avoided:R. v. Fleisher, 2015 QCCA 642, par. 35-42.

As a result, the practice of withholding the passing of a fit sentence pending an appeal on theverdict is to be frowned upon. This principle is, moreover, reinforced by R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, whichaccentuates the need to reduce overall delays in the Canadian criminal justice system. [17] This principle also applies where the appeal from the verdict is brought to the Supreme Court of Canada: R. v. Skalbania,(1997) (BC CA), 87 B.C.A.C. 8 (“Skalbania”). In Skalbania, a panel of the British Columbia Court of Appeal had todecide an issue similar to the one before me.

In that case, the applicant had been tried on a count of fraud and acquitted. On appeal, theB.C. Court of Appeal substituted a guilty verdict and remanded the matter to the trial court for sentencing. An appeal as of right wasinitiated in the Supreme Court of Canada. The sentencing judge refused to adjourn the sentencing hearing, held the sentencing hearingand reserved judgment. The day before the sentencing judge reserved judgment, a motion was made to the Supreme Court of Canada fora stay of the sentencing proceedings. The stay motion was remanded to the B.C.

Court of Appeal, which dismissed it on the ground that“there is no basis for departing from the usual rule that the sentencing proceedings should go ahead while the conviction appeal isoutstanding.” [18] I conclude from this that, barring exceptional circumstances, an appeal to the Supreme Court of Canada from a guilty verdictresulting from an appellate judgment does not and should not impede or delay the determination of a fit sentence for the offense. [19] The parties have referred me to various court decisions which are not truly pertinent to the debate. In R. v.

Smith, 2008 SKCA34 (judge in chambers), Wilkinson J.A. refused to stay a sentence pursuant to

section 65.1 of the Supreme Court Act on the ground thatthe proper procedure was to apply for interim release under

section 679 Cr.C. Likewise, in R. v. Reed, (1998) (BCCA), 102 B.C.A.C. 157 (judge in chambers), Prowse J.A. refused to stay an appeal hearing on a sentencing appeal while the verdict wasitself being appealed to the Supreme Court of Canada. Some appellate judges have decided otherwise with respect to hearing sentencingappeals when the verdict is before the Supreme Court of Canada: R. v. Osolin, (1992), (BC CA), 7 B.C.A.C. 203; R.v. Mackay, (1992) (BC CA), 21 B.C.A.C. 180; and R. v. Peers, 2016 ABCA 175.

However, none of these decisionsconcern a stay of the actual sentencing itself. [20] With the exception of Blanchard c. R., 2018 QCCA 1436, where a stay of the actual sentencing was ordered on consent by theCrown, the parties have failed to identify a single case before or since Skalbania in which an actual stay of a sentencing hearing wasordered pending an appeal of a verdict to the Supreme Court of Canada. [21] While Skalbania strongly favors the dismissal of sentencing stays, there may be exceptional circumstances which couldnevertheless justify a different conclusion in appropriate cases.

Nevertheless, as discussed above, the guiding principle is to proceed tosentencing as soon as practicable after a guilty verdict and irrespective of whether the verdict is appealed. This principle is in factenshrined in sub-section 720(1) Cr.C., and only truly exceptional circumstances could justify deviating from this settled principle. [22] Insofar as

section 65.1 of the Supreme Court Act could be invoked in exceptional circumstances to override the principle, whattest should then be applied? The three-part test in RJR MacDonald still has resonance, but it must be adjusted somewhat to take intoaccount the greater public interest inherent to criminal proceedings, as was aptly pointed out by Justice Watson in R. v. Peers, 2016ABCA 22, at par. 9 to 15, where he refused an application to stay a trial of offenses under provincial securities legislation pending an

appeal to the Supreme Court of Canada on a question of jurisdiction. [ 23 ] As RJR-MacDonald itself provides for, the public interest plays an important

part in the test. This is particularly important in criminal proceedings where public interest considerations underlay the entire process. The public interest must therefore be a primary consideration when a stay of criminal proceedings pending an appeal is sought under

section 65.1 of the Supreme Court Act , particularly with respect to avoiding unnecessary delays, including delays in sentencing. While applying the three-part test set out in RJR-McDonald in a criminal matter, a court must therefore be concerned about the prospect of ensuring the proper course of criminal justice in a timely fashion. [ 24 ] When the stay pertains to a sentencing hearing rather than a new trial, the public interest considerations which apply to an interim release from incarceration are also pertinent, since the effect of granting such a stay is tantamount to a release pursuant to

section 679 Cr.C . where it is apparent that the guilty verdict could warrant a custodial sentence, as is the case here. As a result, the public interest considerations set out in

section 679 Cr.C . and referred to in R. v. Oland , 2017 SCC 17 , [2017] 1 S.C.R. 250, should also be taken into account. [ 25 ] There remains to apply these principles to the situation at hand. * * * * * [ 26 ] The Crown agrees that the applicant could be released pending the disposition of the appeal to the Supreme Court of Canada should she be sentenced to a term of imprisonment on the manslaughter charge following a sentencing hearing.

The Crown thus implicitly recognizes that the appellant does not represent a flight risk nor that her detention is necessary in the public interest pending the disposition of her appeals by the Supreme Court of Canada. [ 27 ] The stay application thus turns on whether exceptional circumstances exist which would allow me to set aside, in this case, the well-settled principle that an appeal from a guilty verdict does not and should not impede or delay the determination of a fit sentence for the offense.

In the normal course, the applicant should be sentenced and should then seek an interim release under par. 679(1)(

c) Cr.C. should her appeal proceedings still be pending. [ 28 ] The only exceptional circumstances which, in my view, merit consideration in this case are that (

a) for reasons which remain unexplained, the Court of Quebec has failed to date to hold a sentencing hearing even though some eight months have elapsed since the judgment of this Court; (

b) according to the parties’ attorneys, the trial judge has since retired and consequently a new judge of the Court of Quebec will need to become familiar with the file for the purposes of determining a fit sentence; that new judge may thus be required to review trial transcripts in addition to overseeing a sentencing hearing, and (

c) in light of the hearing soon to be held in the Supreme Court of Canada, the efforts of the attorneys representing the applicant will be primarily focussed on that hearing, leaving little time available for sentencing proceedings before May 15, 2019. [ 29 ] In this respect, I am somewhat troubled by the fact that no sentencing hearing has yet been held in the Court of Quebec even though eight months have elapsed since the judgment of this Court.

Since the record before me does not explain why a sentencing hearing was not held soon after that judgment, I will abstain from commenting further, save to point out that both R. v. Jordan and R. v. Cody , 2017 CSC 31 , [2017] 1 S.C.R. 659 require a change in judicial culture and in case management procedures. These changes involve not only the courts, but also the Crown and the defense bar.

I can only speculate at this point as to why a sentencing hearing has not been held by now. [ 30 ] Whatever the reason for the delay in sentencing, there is now little time left until the hearing in the Supreme Court of Canada, with the resulting consequence that the defense attorneys must provide a record, a factum and authorities in that court by March 4, 2019, prepare their oral arguments and attend the hearing tentatively scheduled for May 15, 2019.

This leads me to conclude that it is now highly unlikely that a sentencing hearing could be held before the tentative hearing date in the Supreme Court of Canada. [ 31 ] That being stated, this situation may well affect the scheduling of the sentencing hearing in the Court of Quebec and it may indeed be appropriate, in this unusual state of affairs, to

schedule the sentencing hearing after May 15, 2019. However, that is a court scheduling matter which properly belongs to the Court of Quebec to decide. That scheduling issue does not, however, constitute an exceptional or extraordinary circumstance which would justify departing from the well-settled principle that sentencing should not be impeded or delayed while a conviction appeal is outstanding. FOR THESE REASONS, THE UNDERSIGNED: [ 32 ] DISMISSES the application for a stay. ROBERT M. MAINVILLE, J.A. Mtre Francis Villeneuve-Ménard SCHURMAN, GRENIER, STRAPATSAS ET ASSOCIÉS For Applicant

Mtre Christian Jarry Directeur des poursuites criminelles et pénales For Respondent Date of hearing: January 24, 2019