2017 QCCA 929, 2017 QCCA 929

R. c. Kump 2017 QCCA 929 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006036-154 (500-01-062515-116) MINUTES OF THE HEARING DATE: June 9, 2017 CORAM: THE HONOURABLE YVES-MARIE MORISSETTE , J.A. MARIE ST-PIERRE , J.A. ROBERT M. MAINVILLE , J.A. APPELLANT COUNSEL HER MAJESTY THE QUEEN Mtre CHRISTIAN JARRY (Directeur des poursuites criminelles et pénales) RESPONDENT COUNSEL KAIRO KUMP Mtre ANNE-FRANCE GOLDWATER (Goldwater, Dubé) On appeal from a judgment rendered on October 21, 2015 by the Honourable Justice Salvatore Mascia of the Court of Quebec, Criminal and Penal division, District of Montreal

DESCRIPTION : Respondent’s application to dismiss an appeal (Rules 24, 36(2) and 65(1) R.C.A.Q.C.M. ) Clerk: Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING Continuation of the hearing of June 5, 2017. 9:30 By the Court: judgment – see page 3.

Robert Osadchuck Clerk BY THE COURT JUDGMENT [ 1 ] The applicant (“KK”) filed an “application to dismiss a notice of appeal” (“the Application”), which he bases on rules 24, 36(2) and 65(1) of the Rules of the Court of Appeal of Quebec in Criminal Matters (“the Rules ”). [ 2 ] In October of 2011, KK was charged on counts of weapon trafficking, unauthorized possession of a prohibited weapon and conspiracy to commit an indictable offence of weapons trafficking. At his trial, which took place in October of 2014 and May of 2015, KK was represented by counsel, lawyer CM.

On October 21, 2015, the trial judge found him guilty of possession of a prohibited weapon, namely four Taser guns, and acquitted him of the charges of trafficking and of conspiracy. [ 3 ] The circumstances which followed, and which gave rise to the application, are unusual and need to be set out precisely and chronologically. [ 4 ] On November 20, 2015 the Crown filed a notice of appeal with respect to the acquittals. On November 23 and 24, 2015 a bailiff attempted, rather perfunctorily it would appear, and unsuccessfully, to have the notice of appeal served on KK in person.

On November 26, the Crown brought to the Court of Appeal an application for an order authorizing a special mode of service. Upon the presentation of this application on December 1, 2015 before a judge of the Court hearing motions, lawyer VS, who at the time belonged to the same firm as lawyer CM and who was present in the courtroom, identified herself as counsel appearing on behalf of KK. The judge therefore struck the application pertaining to a special mode of service. [ 5 ] On December 4, 2015 KK was sentenced to 100 hours of community service. Defense counsel CM was present, as was counsel for the Crown.

According to the affidavit in support of the Application (“the Affidavit”), KK was not informed that the Crown, by now, had appealed the acquittals of October 21, 2015. [ 6 ] By mid-March of 2016, KK had completed his 100 hours of community service. [ 7 ] The Crown produced its factum in October of 2016.

No factum, and indeed no formal appearance, was filed on behalf of KK. [ 8 ] On January 10, 2017, pursuant to rule 83(2) of the Rules , counsel for the Crown and lawyer VS were notified by the Clerk of the Court of Appeal that the case was now placed on a special roll in order to dispose of the matter in accordance with rules 79 or 97 of the Rules . The hearing of this roll by a panel of the Court was set for May 1, 2017.

[ 9 ] On April 20, 2017, lawyer CM contacted by telephone KK’s spouse and informed her that KK was required to appear in the Court of Appeal on May 1, 2017. KK at that point was entirely unaware of the existence of an appeal against the judgment of October 21, 2015. It appears from the Affidavit that, by then, lawyer VS had resigned from the Bar and was hospitalised. Lawyer CM states in a letter dated March 27, 2017 and addressed to the Clerk of the Court of Appeal, that lawyer VS was hospitalized in a psychiatric ward for many months.

As KK asserts in the Affidavit, he “has never met [lawyer VS] in his life”. [ 10 ] Upon being made aware of this situation, and being given the Crown’s factum by lawyer CM, KK retained on April 27, 2017 the services of Mtre AFG, now counsel of record for KK. She appeared on his behalf before a panel of the Court on May 1, 2017 at which point KK was given until July 3, 2017, to perfect the record of the case. On May 10, counsel for KK filed the Application. [ 11 ] KK was not cross-examined on the Affidavit and the facts alleged therein were not challenged by the Crown.

On its part, the Crown did not offer any evidence. [ 12 ] Rule 24 of the Rules provides as follows: 24. In the event of an appeal by the Attorney General, the notice of appeal and the motion for leave to appeal shall be served on the respondent personally , before or after its filing, but at the latest within 30 days after the filing of the motion, unless a Judge orders otherwise. [Emphasis added] 24. En cas d’appel par le procureur général, l’avis d’appel , ou la requête en autorisation d’appel, est signifié à la

partie intimée personnellement , avant ou après le dépôt, mais au plus tard dans les 30 jours de celui-ci, à moins qu’un juge n’en ordonne autrement. [Soulignements ajoutés] Based on the record before the Court, we must conclude that (

a) the notice of appeal was never served personally on KK; (

b) lawyer VS was never retained to represent KK in the Court of Appeal; and (

c) KK had no knowledge of the Crown’s appeal before April 20, 2017. [ 13 ] It is equally apparent from the record before the Court that KK made no attempt to elude service or notice of an appeal by the Crown and that he could easily have been served at his known address had minimal diligence been exercised by the Crown. [ 14 ] It is impossible to conclude that the strict duty (“… shall be served on the respondent personally…”) which rule 24 imposes for service to be valid, was approached with the appropriate degree of diligence in the highly unusual circumstances of this case.

The appeal was not brought in compliance with rule 24 and the Crown, now aware of all the circumstances set out in the Application, has not sought to correct this irregularity. FOR THESE REASONS , the Court: [ 15 ] GRANTS the application; [ 16 ] DECLARES , pursuant to rule 97 of the Rules of the Court of Appeal of Quebec in Criminal Matters and to

article 365 of the Code of Civil Procedure , that the appeal was improperly initiated, that it cannot proceed henceforth to be heard on its merits and that it must therefore be dismissed; [ 17 ] DIMISSES the appeal. YVES-MARIE MORISSETTE, J.A. MARIE ST-PIERRE, J.A. ROBERT M. MAINVILLE, J.A.