2019 QCCA 1069, 2019 QCCA 1069

Javanmardi c. R. 2019 QCCA 1069 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005886-153 (500-01-013474-082) DATE: June 18, 2019 BEFORE THE HONOURABLE STEPHEN W. HAMILTON, 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 presents a motion for a stay of proceedings pending the judgment of the Supreme Court of Canada on her appeal. [1] This is the second time the Applicant has made such a request.

The first request was dismissed on January 31, 2019, by the Honourable Robert M. Mainville. [2] [ 2 ] The circumstances in this matter are particular. [ 3 ] On April 8, 2015, the Applicant was acquitted of manslaughter and criminal negligence causing death by a judge of the Court of Quebec. [ 4 ] On May 31, 2018, the Court of Appeal allowed the Respondent’s appeal and the verdicts of acquittal were set aside. [3] A verdict of guilty was substituted on the charge of manslaughter and the matter was remitted to the Court of Quebec for sentencing.

A new trial on the charge of criminal negligence causing death was ordered. [ 5 ] On June 28, 2018, the Applicant filed with the Supreme Court of Canada an appeal as of right from the manslaughter verdict. She also filed an application for leave to appeal the judgment setting aside her acquittal on the charge of criminal negligence causing death. On December 6, 2018, the Supreme Court of Canada granted leave to appeal on the Applicant ’s application. [ 6 ] On May 15, 2019, the Supreme Court of Canada heard the appeal and took the matter under advisement.

There is no indication of when the judgment will be rendered. [ 7 ] The sentencing hearing on the manslaughter conviction is now scheduled in the Court of Quebec from July 29 to August 2, 2019. This is a one-week hearing. The Applicant has announced her intention to call about 20 witnesses. The effect of the requested stay of proceedings would be that the Applicant ’s sentencing hearing would not proceed until the Supreme Court rendered its judgment. [ 8 ] As set out above, a similar application was presented to Justice Mainville on January 31, 2019.

At that time, the Supreme Court hearing was scheduled but had not yet taken place, and no sentencing hearing was scheduled in the Court of Quebec. The Respondent contested the application. Justice Mainville dismissed the application, stating that the appropriate course of action was to proceed with sentencing, and, once the sentence was determined, the Applicant could seek interim release under par. 679(1)(

c) Cr.C. [ 9 ] There have been two developments since Justice Mainville’s judgment. First, the Supreme Court heard the appeal and took the case under advisement. Second, the Respondent no longer opposes the stay of the sentencing hearing until the final judgment of the Supreme Court. During the hearing before me, the Respondent explained that its position changed as a result of the Supreme Court hearing. The Respondent is now of the view that the stay of the sentencing hearing would be appropriate, in terms of economy of judicial resources.

The Applicant submits that these two developments constitute a material change in circumstances and justify varying the initial decision rendered by Justice Mainville. [ 10 ] I agree with Justice Mainville that, as a general rule, sentencing hearings should not be suspended pending a final decision on the appeal from the conviction. It has always been the practice of the Court to allow the sentencing hearing to proceed even if the accused has appealed from the conviction and then to combine the appeal from sentence, if there is one, with the appeal from conviction in a single hearing.

There are good practical reasons for this practice and I do not wish to undermine it in any way.

[ 11 ] However, the circumstances in this case are very different. The trial in the Court of Quebec took place in 2015. There was no sentencing hearing for the obvious reason that the Applicant was acquitted. Once the Court substituted a conviction in 2018, it might have been appropriate for the Court of Quebec to proceed with a sentencing hearing, but it did not do so. By the time Justice Mainville was seized of the matter in January 2019, the hearing in the Supreme Court was only 3½ months away and he suggested that it might be appropriate to

schedule the sentencing hearing after the hearing in the Supreme Court to allow the defense attorneys to prepare their appeal . [ 12 ] Appeals as of right in criminal matters are frequently decided from the bench, but the Supreme Court took this matter under advisement. The Respondent recognizes the real possibility of the Supreme Court granting the appeal and either substituting an acquittal or ordering a new trial. In either event, the sentencing hearing would be a waste of time.

As a result, the Respondent now consents to the suspension of the sentencing hearing until the Supreme Court has rendered its judgment. I also note that the Applicant , through her attorney, has agreed to waive any argument resulting from the delay in sentencing. [4] [ 13 ] In all of these circumstances, and in particular in light of the Respondent’s consent [5] , I am of the view that it is appropriate to stay the sentencing hearing until after the Supreme Court renders its judgment on the Applicant ’s appeal.

FOR THESE REASONS, THE UNDERSIGNED: [ 14 ] GRANTS the Applicant’s application for a stay; [ 15 ] STAYS the sentencing hearing scheduled in the Court of Quebec from July 29, 2019 to August 2, 2019 with respect to the judgment rendered by the Court of Appeal on May 31, 2018, until the final judgment of the Supreme Court of Canada on the Applicant’s appeal. STEPHEN W. HAMILTON, J.A.

Mtre Francis Villeneuve-Ménard SCHURMAN, GRENIER, STRAPATSAS & ASSOCIÉS For Applicant Mtre Christian Jarry DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For Respondent Mtre Alexandre Duval (Absent) BERNARD, ROY (JUSTICE-QUÉBEC ) For Impleaded party Date of hearing: June 14, 2019