2021 QCCA 1969, 2021 QCCA 1969

Vdovin c. R. 2021 QCCA 1969 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-006876-187 , 500-10-007016-197 (500-01-126232-153 SEQ. 001) DATE: December 22, 2021 CORAM: THE HONOURABLE JEAN BOUCHARD, J.A. SOPHIE LAVALLÉE, J.A. CHRISTINE BAUDOUIN, J.A. ANATOLIY VDOVIN APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT [ 1 ] On May 3, 2018, the Court of Québec, Criminal and Penal Division (District of Montreal) found the appellant guilty on various counts related to the possession and trafficking of firearms and prohibited devices, as well as on one count of breach of an undertaking. [1] [ 2 ] The appellant was granted leave to appeal that verdict solely on the issue of ineffective assistance of counsel at trial. [2] [ 3 ] To that end, he was authorized to adduce fresh evidence intended to shed light on the context for his counsel’s omissions and decisions in the conduct of his defence.

At that time, the issues of admissibility and probative force of this fresh evidence, consisting of the appellant’s affidavits, were deferred to the Court. [3] Mtre Dell’Aquila was also authorized to file an affidavit in order to respond to the allegations of professional incompetence made against him.

These affidavits were filed in the Court record. [4] [ 4 ] The appellant also seeks leave to appeal the sentence rendered on September 21, 2018, which sentenced him to serve a 10-year term of imprisonment, less 63 months of preventive detention, leaving a term of 57 months. [5] *** [ 5 ] At trial, the appellant, who was then represented by Mtre Fabio Dell’Aquila, his seventh lawyer in the case, presented no defence. [6] [ 6 ] Having examined the respondent’s evidence, the court found, beyond a reasonable doubt, that the appellant had sent packages containing parts for AK-47 firearms, with full knowledge of the contents of those packages, to undercover officer Brooks, alias Ed Nolan, in Alabama.

It also found that the appellant had had possession of the thousands of items seized by the police officers and that these items were indeed firearms or prohibited devices within the meaning of s. 2 of the Criminal Code (“ Cr.C . ”). [ 7 ] After finding him guilty on 13 counts of possessing and trafficking in weapons and prohibited devices, the court ordered a conditional stay of proceedings on counts 3 and 6 so as to avoid multiple convictions, [7] before also finding him guilty on one count of breach of an undertaking not to have prohibited weapons or devices in his possession ( s. 145(3) (

b) Cr.C .). [ 8 ] At the sentencing hearing on June 12, 2018, the appellant dismissed his counsel and decided to proceed without representation. That same day, Mtre Fabio Dell’Aquila filed a motion to cease representing. [ 9 ] Having briefly set out the background, the Court will now consider the ground of appeal raised in the present matter and, if applicable, the motion for leave to appeal the sentence. 1.

APPEAL OF GUILTY VERDICT [ 10 ] The appellant, arguing that he did not receive adequate and effective assistance of counsel at trial, asks the Court to order a new trial under s. 650(3) Cr.C . and ss. 7 and 11 of the Canadian Charter of Rights and Freedoms . [8] [ 11 ] Considering the nature of the ground of appeal raised, it is appropriate to refer to the facts of this case, as summarized in the

sentence: [5] In February 2015, the assistance of investigator David Paradis from the SPVM is requested by Gabriel Brooks from the ATF Agency in Alabama. [6] Since July 2014, Officer Brooks has been investigating the trafficking of firearms. He has contacted a seller on the Internet and placed a first order for 5 AK-47 receivers and rails, which he receives on February 9, 2015. Based on the inscriptions on the package, it comes from a Montreal address.

Payment is made through Vdovin’s Paypal account. [7] From February 2015 to April 9, 2015, officer Brooks places 4 orders with the same seller and receives all AK-47 parts as ordered. The Montreal police investigation identifies Vdovin as Brooks’ seller. [8] On March 23 and 24, 2015, Vdovin is observed by police going to Pohrebniak’s residence at 275 Charron, apt. 2, in Montreal. On April 9, 2015, an infiltration agent goes to such residence and takes the boxes containing the AK-47 receiver blanks left there by Vdovin.

Later that day, a search at the residence leads to the seizure of 4 silencers with caps and baffles. Pohrebniak is arrested. [9] On the same date, the police observe Vdovin going to Depotium, a warehouse located on Notre-Dame Street in Montreal. He is arrested as he leaves. He is holding three plastic bags that contain packages destined to Ed Nolan, the name used by officer Brooks.

In those packages are receivers and other parts ordered by the American officer. [10] The search of locker 2762 at Depotium, leased by Vdovin, allows the police to seize a considerable number of receivers, silencers, large-capacity magazines as well as the parts, tools, plans and instructions needed to make automatic or semi-automatic AK- 47’s. [11] On that same day, a search is conducted at Vdovin’s residence at […] Street in Montreal. Receipts and bills from Canada Post associated with the packages sent to Brooks are found.

Are also found a design plan for an AK-47 receiver and a hand-written note with Officer Brooks’, AKA Ed Nolan, contact information in Birmingham, Alabama. [12] Amongst numerous firearm parts seized, the accused was found in possession of more than 900 receivers, approximately 180 silencers and around 25 large-capacity magazines. [13] The testimony of Officer Éric MacKay, expert in the identification and the use of firearm in Canada, is well summarize in the last paragraph of his report: In the case at hand, the extraordinary quantity of Ak-47 «flats» is most remarkable. To my knowledge it is unique.

The investigation and trial have demonstrated Mr. Vdovin’s ability to manufacture an automatic firearm from the pieces that were seized. I can only imagine the damage caused by the manufacture and distribution of these firearms on the black market. There would be no other legal way to distribute the firearms manufactured by this individual from the parts seized.

The firearms made in this way are unmarked firearms as seen with «ghost guns», police force would thereby have no way to trace these firearms. [9] [ 12 ] At trial, the prosecution adduced testimonial evidence by calling to the stand seven SPVM investigators, three Sûreté du Québec police officers, a policewoman from Saint-Eustache, an investigator from the Escouade nationale du crime organisé, a Royal Canadian Mounted Police investigator, a ballistics expert and an SPVM armourer.

It also adduced documentary evidence and physical evidence comprised of photographs of the AK-47 receivers, envelopes that had been mailed, Canada Post invoices, photographs of the appellant on various dates, the payment register for the storage unit containing the firearms parts seized by the police officers, the weapons seized, and the packages. [ 13 ] The defence adduced no evidence. [ 14 ] As new evidence on appeal, the appellant filed his affidavit dated October 23, 2018 pertaining to the management of his defence, as well as an affidavit dated January 5, 2021 in reply to Mtre Fabio Dell’Aquila’s affidavit dated July 24, 2020.

The prosecution filed the affidavit of investigator Denis Paradis dated April 19, 2019, as well as the transcript of the recording of certain depositions given at trial. [ 15 ] Section 683(1) (

a) Cr.C . provides for the possibility, on appeal, of applying for the authorization to adduce fresh evidence. Such evidence may be admitted when it is in “the interests of justice” to do so.

The criteria for admission of fresh evidence, as established in Palmer , [10] are well known: the evidence could not be adduced at trial, it is relevant and credible, and it may affect the outcome. [11] It is accepted that, where a miscarriage of justice based on counsel’s incompetence is alleged, the interests of justice criterion is viewed from a different perspective given that it is the fairness of the proceedings themselves that is at issue: [ translation ] [37] The fresh evidence for demonstrating counsel’s incompetence, however, is not subject to the same criteria.

Indeed, “[i]n such cases, the evidence is not offered as a foundation for reviewing the decision under appeal, but as a basis for requesting an original remedy in the Court of Appeal”.

In such a case, the evidence must be (1) relevant to the remedy sought, (2) credible and, if uncontradicted, (3) sufficient for the Court to make the order. [38] When counsel’s incompetence is alleged, fresh evidence is generally essential and the criteria for admission are less stringent. [12] [ 16 ] Considering these principles, it appears that the fresh evidence filed in the Court record sheds light on the facts having given rise to the appellant’s allegations that his counsel was incompetent and that this led to a miscarriage of justice.

It should therefore be admitted because it is relevant to the remedy sought. [ 17 ] In order to rule on the probative force of this new evidence, it must be examined in relation to each of the appellant’s allegations.

Before doing so, it is useful to recall the applicable legal rules. 1.1.

Applicable law [ 18 ] The right to effective assistance of counsel is a principle of fundamental justice derived from the common law, from s. 650(3) Cr.C . and from the Canadian Charter of Rights and Freedoms . [13] Since criminal law is based on an adversarial process to ensure the truth of criminal charges, such effective assistance is crucial. [14] Seriously ineffective representation can undermine not only the reliability of the verdict, but also the fairness of the proceedings, thereby resulting in a miscarriage of justice. [15] Where counsel’s incompetence results in a miscarriage of justice, a new trial must be ordered. [16] Two-pronged test [ 19 ] The test for examining an allegation of counsel’s incompetence is set out in the Supreme Court’s landmark ruling in R. v.

G.D.B. , [17] which reiterates the principles developed in R. v. Joanisse [18] and Delisle c. R. [19] to the effect that it must be established that counsel’s acts or omissions constituted incompetence and that a miscarriage of justice resulted. [20] [ 20 ] Counsel’s conduct must be assessed on the basis of reasonableness: [ translation ] [29] [...] The latter duty concerns the existence, the extent and the fulfilment of the client’s rights.

Among other things, “[t]he advocate must set out in an objective manner to the client the nature and implications of the problem as he sees it on the basis of the facts brought to his attention and of the risks inherent in the measures recommended”. In making recommendations, lawyers are obviously subject to an obligation of means, not an obligation of result. This distinction implies that when lawyers are faced with a factual situation in which the application of certain legal principles is contentious, they cannot guarantee that their opinion is necessarily the best or the one that will prevail.

They must, however, act with reasonable diligence and their positions must be based on acceptable legal grounds. The standard is that of the ordinarily prudent and diligent lawyer, with ordinary knowledge. Each situation is specific and the Court must examine it individually and in context. [30] The duty to advise also implies that lawyers must recognize the limits of their knowledge and refuse a mandate for which they are not qualified (s. 3.01.01 of the Code of ethics of advocates ). Moreover, practitioners must refuse or cancel a mandate if they no longer believe the client.

As Proulx, J.A. wrote in Delisle (cited hereinabove), they must not “act as their client’s judge” (s. 3.03.04 of the Code of ethics of advocates ). [31] Because of their knowledge and experience, lawyers must assess the cases of the persons who consult them, make recommendations and suggest strategic and tactical choices.

However, accused persons hold ultimate control over their defence and, in particular, over essential decisions such as the decision to testify or enter a guilty plea. [21] [Emphasis added] [ 21 ] The analysis of incompetence must start with the “strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance”. [22] Consequently, it is up to the appellant to rebut this presumption, by comparing his counsel’s conduct to that expected of prudent and diligent counsel, [23] the standard for assessing incompetence being reasonableness. [24] Since the burden of persuading the court that counsel was incompetent falls on those alleging incompetence, [25] they must first establish the contested facts on a balance of probabilities. [26] It is therefore important that counsel whose conduct is at issue have the opportunity to explain the impugned conduct. [27] [ 22 ] In examining the allegations of trial counsel’s incompetence, the Court must be guided by the three principles Proulx, J.A. noted in Delisle : [ translation ] [19] First, it is helpful to reiterate the well-known principle of the stability of judgments which, barring exceptional circumstances, is a peremptory exception ( fin de non recevoir ), in civil law as in criminal law, to any attempt by a party who is dissatisfied with a judgment to get a second chance by attacking the decisions or advice of trial counsel […] [20] Second, the slightest fault, the slightest blunder, the smallest error in judgment or strategy cannot, in principle, result in the ex post facto review of counsel’s decisions for the benefit of the losing party. [21] Third—and here I refer to the considerations stated earlier—counsel whose conduct is at issue must have had the opportunity to explain themselves.

In order to arrive at a judicious determination of counsel’s conduct, appellate courts must, while taking a deferential approach, perform an objective and fair review in which they must avoid the pitfall of hindsight, reconstruct as best as possible the events related to the impugned conduct and, lastly, assess such conduct from the perspective of the person whose conduct is at issue. [28] [ 23 ] Thus, counsel’s conduct must be examined in the context of the trial and in light of counsel’s explanations of such conduct.

Otherwise, every client who is displeased with the outcome of their trial could allege the incompetence of counsel and obtain a new trial.

The question of prejudice, therefore, is key, because the purpose of the analysis is not to “grade counsel’s performance”. [29] For this reason, the Supreme Court opined that in cases in which no prejudice has occurred, it is undesirable for appellate courts to consider counsel’s performance, because in such situations counsel’s incompetence is strictly a matter of professional ethics. [30] In Delisle , this is why the court suggested that the issue of prejudice be considered first:

[translation] Consequently, it is logical that the Court begin with an analysis of the prejudice or the effect of counsel’s conduct on the fairness of thetrial.

If the Court concludes that there is no prejudice, any subsequent discussion is superfluous and unnecessary. [31] [24] The miscarriage of justice involves two possibilities: the incompetence may have affected the reliability of the verdict or it may have affected the fairness of the trial.[32] The appellate court’s main line of analysis will be determined by the nature of the alleged incompetence.[33] When counsel’s incompetence is insufficient to find that the appellant was completely deprived of the right toassistance of counsel, the latter’s decisions, actions or omissions may nevertheless lead to the conclusion that the Crown’s evidence was not properly challenged and that the verdict is unreliable.[34] In such cases, the appellant must prove, on a balance of probabilities, that, were it not for counsel’s incompetence, the verdict could have been be different.[35] In Joanisse, these two possibilities were described asfollows:[36] In some cases, counsel’s incompetence rests in conduct which permeates and infects counsel’s entire performance.

Where counsel’sincompetence is pervasive, the focus must be on the effect of that incompetence on the fairness of the adjudicative process. […] Some claims of incompetence relate to specific decisions made or actions taken by counsel in the course of the defence. These claims donot assert an actual or constructive denial of the assistance of counsel, but instead contend that the assistance given was so deficient thatit was ineffective. These claims come down to the assertion that because of counsel’s incompetence, the defence was not properly put, orthe Crown’s case was not properly challenged.

In these situations, the effect on the fairness of the trial of counsel’s incompetence ismeasured by reference to the impact of the error or errors on the reliability of the result. For example, it may be argued that defencecounsel failed to cross-examine a Crown witness when any competent counsel would have done so. Counsel’s error does not detract fromthe fairness of the adjudicative process at trial. It may, however, render the result unreliable in that, had counsel conducted a propercross-examination, the trier of fact may have come to a different conclusion.

Assessing contradictory versions on appeal [25] The role of appellate courts is not to weigh and assess evidence and make findings of fact.

However, in circumstances such as those in the instant case, where evidence of counsel’s incompetence is based on contradictory affidavits,[37] the appellate court mustassess the credibility of each of the versions set out in the affidavits in order to adjudicate the appeal: [132] The conflicting versions of events recorded in these affidavits highlight the difficulties that arise when appellate courts engage infact finding questions to determine the issue of counsel’s conduct of trial.

We must remember that the onus is on the appellant toestablish the facts upon which the claim of incompetence is based: Joanisse, supra at 59-60. In this context, it is also useful to rememberthe guidance of O’Halloran, J.A. in Brethour v. Law Society of British Columbia (1950), (BC CA), 1 W.W.R. (N.S.)34, [1951] 2 D.L.R. 138 at 141-42 (B.C.C.A.): The credibility of interested witnesses, particularly in cases of conflict of evidence, must reasonably be subjected to an examination ofthe consistency of their stories with the probabilities that surround the currently existing conditions.

In short, the real test of the truth of astory of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed personwould readily recognize as reasonable in that place and under those conditions. [133] Most important in resolving the factual dispute in this case, in our view, is the absence of any contemporaneous objection fromthe appellant about trial counsel’s failure to call him to testify. In R. v. Brigham (1992), (QC CA), 79 C.C.C. (3d)365, 18 C.R. (4th) 309 (Que.

C.A.), such evidence was central to showing that trial counsel had defied the accused’s instructions that heshould be called as a witness. Similarly in Joannisse, supra at 79, the majority weighed the appellant’s delay in raising an alleged denial of his right to testify in dismissing the solicitor incompetence claim.[38] [Emphasis added] [26] These principles having been set out, the Court now turns to their application to the case at bar. 1.2.

Analysis [27] Did the omissions, decisions and conduct of appellant’s trial counsel constitute professional incompetence that resulted in amiscarriage of justice within the meaning of s. 686(a)(iii) Cr.C.? [28] In this regard, the appellant’s affidavit raises issues that must be examined on the merits. Nonetheless, three of the appellant’scomplaints against his counsel cannot be considered, because there is no evidence to support them:

(1) Mtre Dell’Aquila was working for the SPVM and had been ordered to sabotage the trial;

(2) Mtre Dell’Aquila stole money from the appellant’s bank account using the appellant’s bank card; and

(3) Mtre Dell’Aquila misled the appellant by failing to contact him between January and February 2018, claiming that his father was ill,when, in fact, he took a trip down South. [29] Thus, in analyzing his ground of appeal, only the following complaints will be considered: - Mtre Dell’Aquila failed in his duty to advise;

- He did not have the appellant testify and did not subpoena witnesses; - He failed to present expert ballistics evidence; - The cross-examinations of the respondent’s witnesses were deficient; - He failed to contact and meet with the appellant in January and February 2018; - He did not file a motion for a stay of proceedings despite the appellant’s request he do so. [ 30 ] Before the Court delves into its analysis, some comments are in order. [ 31 ] First, the appellant’s allegations cannot be examined in the aggregate.

Each fault alleged against counsel, and the prejudice allegedly resulting therefrom, must be assessed on their merits. [ 32 ] Moreover, it is important to note that the appellant’s version contradicts that of his counsel on all points. Consequently, it is necessary to assess the plausibility of each version, which poses practical problems at the appeal stage. This is all the more difficult in the present case because the Court does not have the transcript of out-of-court cross-examinations of Mtre Dell’Aquila and the appellant which would shed light on the content of their respective affidavits.

It should be noted that the appellant is self-represented and is incarcerated. [ 33 ] Consequently, the merits of the appellant’s various complaints can only be assessed on the basis of the affidavits and the examinations of certain witnesses at trial, the transcripts whereof were filed in the appeal record. General failure to advise [ 34 ] The appellant alleges that, in conducting the trial, counsel generally failed in his duty to advise.

In addition to the more specific complaints discussed below, he faults counsel for having considered it advisable to have the evidence relating to the counts of possessing and trafficking in weapons heard before the evidence related to the breach of an undertaking not to possess weapons. He also maintains that he did not agree with counsel’s suggestion to proceed before a judge alone rather than before a jury. [ 35 ] Mtre Dell’Aquila’s affidavit refutes these allegations. He first points out that before he began to represent the appellant, six lawyers, one after the other, had represented him in this case.

He states that he performed his mandate properly and explains that the difficulties encountered in representing the appellant were attributable to the latter, stressing that the appellant was uncooperative because he was convinced that the justice system was corrupt and that there was a conspiracy against him. [ 36 ] These statements by Mtre Dell’Aquila are credible and, moreover, are corroborated by the appellant’s affidavits, which question not only the competence and integrity of Mtre Dell’Aquila, but those of every person involved in his case.

For example, the appellant stated the following in one of his affidavits: “By september 2017 SPVM operatives had a chance to find out that I limit their scope of influence over my lawyers by firing them as soon as they became suspects.” [39] Decision not to have the appellant testify and failure to subpoena defence witnesses [ 37 ] The appellant submits that Mtre Dell’Aquila never discussed with him the defences that could be considered in this case. He claims he wanted to testify because, in another trial, he was acquitted precisely because he had testified in his own defence.

He faults Mtre Dell’Aquila for failing to follow the instructions he had given him in that regard. [ 38 ] In his affidavit, Mtre Dell’Aquila claims that the appellant often changed his mind about testifying and, generally, about presenting a defence. [40] He states that the latter did not want to testify, insisting that he had nothing to say to the police, that he did not want to speak to them and that the entire trial was nothing but a sham. [ 39 ] Counsel explains that he spoke with the appellant about the pertinence of calling witnesses.

He adds that, between January 15 and February 27, 2018, he unsuccessfully attempted to contact the witnesses the appellant wished to call to the stand, namely his landlord and a friend, the appellant having provided him with phone numbers for these individuals.

Mtre Dell’Aquila states that the appellant did not want to assume the costs for sending subpoenas to these individuals. [ 40 ] Based on the transcript, counsel’s version is credible. [ 41 ] Indeed, on November 22, 2017, Mtre Dell’Aquila asked that the hearing be suspended so he could confer with the appellant about the cross-examinations and about the possibility of presenting a defence. [41] That same day, he announced to the Court that there would be no defence, because, after he conferred with the appellant, the latter did not want to testify or present a defence.

Then, at the hearing on January 15, 2018, Mtre Dell’Aquila informed the Court that he was having difficulty contacting the witnesses the appellant wished to call to the stand for his defence, but that he would do everything in his power to contact them before February 27, 2018, which was the next hearing date. [ 42 ] Implicit in these excerpts from the evidence is that the appellant had changed his mind and wanted to present a defence [42] and that, for reasons that cannot be clearly identified, no defence was ultimately presented. [ 43 ] It is clear, however, from the transcripts filed in the appeal record, that Mtre Dell’Aquila was receiving instructions from his client and was informing the court of decisions as and when they were being made.

The transcripts also support his position to the effect that he attempted to contact the witnesses the appellant had indicated, but was unsuccessful in doing so. Moreover, it seems implausible that Mtre Dell’Aquila never spoke with the appellant about the possible defences that could be presented at trial, because he knew that the appellant was claiming that he sold the prohibited devices as building materials. [43] The only way he could have learned this was

through a discussion with the appellant on this subject. [ 44 ] These elements bolster the credibility of counsel’s version of the facts. [ 45 ] Considering the foregoing, the appellant has not met the burden of proving that counsel was negligent in deciding not to have the appellant testify and in failing to subpoena witnesses. Deficient cross-examinations of the respondent’s witnesses [ 46 ] The appellant faults his lawyer for conducting

summary and unsophisticated cross-examinations of the respondent’s witnesses. [ 47 ] The Court cannot accept this claim. The decision whether or not to cross-examine may be based on strategic considerations.

It is not a decision that belongs exclusively to the accused. [44] Furthermore, when the accused does not dictate specific questions, counsel has full discretion as to the content of the cross-examination. [45] [ 48 ] Once a client has entered a plea of not guilty, it is for defence counsel to decide how to conduct the case—with the exception of some fundamental decisions, such as whether or not the client should testify. Defence counsel conduct their cases by applying their professional skills and judgment in the manner they consider to be in the best interests of their clients.

Their control over the conduct of a case generally involves deciding the witnesses that will be called, the witnesses that will be cross-examined and how they will be cross- examined. The Ontario Court of Appeal pointed this out in White : [90] […] Once a client has pleaded not guilty, apart from a few fundamental decisions such as whether the client should testify, defence counsel decides how a case should be conducted. Defence counsel are not mere mouthpieces for their clients.

They conduct the case by exercising their professional skill and judgment in what they consider to be the best interests of their clients. Their control over the conduct of the case ordinarily includes deciding what witnesses to call, what witnesses to cross-examine and how to cross-examine them […]. [46] [ 49 ] Lawyers know that, sometimes, it is better not to cross-examine a witness, because the cross-examination could bolster the witness’ credibility. In the present case, the cross-examination of Gilbert Desjardins, the ballistics expert, is a striking example.

He answered each of Mtre Dell’Aquila’s questions with confidence and was thereby able to provide additional details which seem to have bolstered his credibility. [47] [ 50 ] In assessing the cross-examinations conducted by appellant’s counsel, one cannot ignore the fact that the respondent’s evidence was extremely damning. In this context, these cross-examinations were adequate and covered all the points counsel felt it was possible to challenge.

It is not possible to conclude that Mtre Dell’Aquila failed in his duty to act as a reasonable lawyer would have done in the same circumstances, nor is it possible to conclude that the verdict would have differed had the cross-examinations been better. Absence of expert ballistics evidence for the defence [ 51 ] The appellant faults Mtre Dell’Aquila for not having called a ballistics expert as a witness. He claims that one of his former lawyers had advised him to contact one. However, he does not mention the name of that expert in the following excerpts from his affidavit: 6.

Dell’Aquila was given clear instructions regarding what is expected of him, and the order it has to be done in.

A) Dell’Aquilla was ordered to hire an IT expert paid by Legal Aid who was required to testify in both cases: # 500-0-126-232-153 and #500-01-088-158-131.

B) A Legal Aid paid gun expert.

C) I gave Dell’Aquila a telephone number of lawyer number four on my case: Ngok Thang Nguyen who handled my case briefly before Dell’Aquila, and who has mentioned to me, that he knows the IT and gun experts who will testify on Legal Aid. [ 52 ] According to Mtre Dell’Aquila’s version of the facts, the appellant did not want to pay in order to present such expert evidence. On reading the aforementioned excerpts from the appellant’s affidavit, counsel’s version cannot realistically be set aside.

The appellant, therefore, has not discharged the burden of proving the alleged error on a balance of probabilities, particularly given that, as mentioned above, it is up to counsel to decide what witnesses to subpoena and, in general, how to conduct the case. Failure to meet with or contact the appellant between January and February 2018 [ 53 ] The appellant alleges that Mtre Dell’Aquila was on vacation from January until late February 2018 and that, during this period, he failed to contact him.

Mtre Dell’Aquila claims that, during this period, he had a discussion with the appellant about the difficulties he was having in reaching the witnesses the appellant had identified. He states that it was in this context, in fact, that the appellant ultimately decided not to present a defence. These two versions of what happened between January and February 2018 are completely contradictory, but we conclude that even if the discussion Mtre Dell’Aquila states he had with the appellant did not occur, that omission alone could not, in and of itself, undermine the reliability of the verdict.

Failure to file a motion for a stay of proceedings [ 54 ] The appellant argues that Mtre Dell’Aquila did not file the Jordan [48] motion for a stay of proceedings that the appellant had asked him to present. [ 55 ] Mtre Dell’Aquila replies that such a motion had been presented in this case before he began to represent the appellant, but it had been dismissed. [49]

[ 56 ] His statement to the effect that a Jordan motion was filed and dismissed before he entered the present file is incorrect. Mtre Dell’Aquila is confusing this case with another case in which the appellant had been charged (500-01-144427-165). The motion arguing unreasonable delay took place in that case, in which he had also represented the appellant. [50] [ 57 ] In the present file, the appellant filed an appearance on September 3, 2015 and was convicted on May 3, 2018. There was therefore a total delay of 31 months and 30 days between his appearance and his conviction.

Based on the court record ( plumitif ), it appears the appellant opted for a trial before a judge alone with a preliminary inquiry. The ceiling for determining unreasonable delay is therefore 30 months. The total delay between the appellant’s appearance and conviction thus exceeded the ceiling by two months. [ 58 ] According to the Jordan [51] framework for applying s. 11(

b) of the Canadian Charter , the delay is presumptively unreasonable as soon as it exceeds the 30-month ceiling, but defence delay must then be deducted before finding that the right to be tried within a reasonable time has been breached.

If the delay still exceeds the ceiling, the burden is on the prosecution to show that it is reasonable, which the prosecution can do only by alleging exceptional circumstances. [ 59 ] Thus, given that defence delay must be deducted when determining whether there has been a breach of the right to be tried within a reasonable time and given that, in the case at bar, the appellant changed lawyers seven times, the Court must conclude that even if Mtre Dell’Aquila had failed to present such a motion despite the appellant’s request he do so, this error would have had no impact on the fairness of the trial. 2.

LEAVE TO APPEAL THE SENTENCE [ 60 ] The applicant seeks leave to appeal the sentence rendered on September 21, 2018.

In the sentencing judgment, the court first noted that the applicant had dismissed his lawyer and had decided to continue the hearing without representation, [52] that he had questioned all of the conclusions resulting from the trial and that he had asked that the items seized be returned to him. [53] [ 61 ] After indicating that the respondent was seeking a 10-year sentence of imprisonment against the applicant, the court succinctly set out the principles applicable to sentencing [54] and examined the seriousness of trafficking in prohibited weapons and the particular factors to be taken into account for such offences. [55] [ 62 ] The court then reviewed the range of sentences in similar situations [56] and noted that a sentence of between 7 and 10 years of imprisonment is usually imposed. [57] It then concluded that none of the jurisprudence consulted involved a situation like the one in the case at bar, given the number of receivers—over 900—seized.

It added that the potential danger to the public of such an amount of firearms is obvious. [58] [ 63 ] Save for the absence of previous convictions, the court found that there were no mitigating factors. [59] It then listed the aggravating factors, such as the objective gravity of the offence, the dangerousness of firearms and the applicant’s denial of responsibility. [60] [ 64 ] In light of all these considerations, the court accepted the respondent’s recommendation and sentenced the appellant to a term of 10 years of imprisonment, less 63 months of preventive detention, leaving a term of 57 months. [61] [ 65 ] In his affidavit serving in lieu of an appeal brief, the applicant submits no argument in support of his motion for leave to appeal the sentence. [ 66 ] Absent arguments addressing the error committed by the court or the unfit nature of the sentence, and considering the stringent standard of review, [62] the appeal of the sentence must be dismissed.

FOR THESE REASONS, THE COURT: [ 67 ] DISMISSES the appeal of the verdict; [ 68 ] grants the motion for leave to appeal the sentence; [ 69 ] dismisses the appeal of the sentence. JEAN BOUCHARD, J.A. SOPHIE LAVALLÉE, J.A. CHRISTINE BAUDOUIN, J.A. Anatoliy Vdovin Unrepresented

Mtre Robert Benoit Mtre Marianna Ferraro DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the respondent Date of hearing: December 1, 2021