2017 QCCA 1678, 2017 QCCA 1678

Chemama c. R. 2017 QCCA 1678 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005556-145 , 500-10-006208-167 500-10-005357-130, 500-10-005444-136 (500-01-049364-109, 500-01-048577-107) DATE: October 27, 2017 CORAM: THE HONOURABLE MARK SCHRAGER, J.A. ROBERT M. MAINVILLE, J.A. MARIE-JOSÉE HOGUE, J.A. ERICH CHEMAMA APPLICANT – Appellant - Accused v.

DON HEAD, The Commissioner of Correctional Services of Canada MTRE CLAUDIA GAGNON in her personal capacity and as legal counsel of the Department of Justice Canada THE DIRECTOR OF REGIONAL RECEPTION CENTER, STE-ANNE-DES-PLAINES, QUEBEC THE DIRECTOR OF PORT-CARTIER QUEBEC THE ATTORNEY GENERAL OF CANADA RESPONDENTS - and HER MAJESTY THE QUEEN DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS RESPONDENTS - Prosecutrix and THE ATTORNEY GENERAL OF QUEBEC IMPLEADED PARTY and AMICUS CURIAE IMPLEADED PARTY JUDGMENT [ 1 ] The Applicant was convicted by a jury of two sexual assaults on November 11, 2013 and subsequently declared a dangerous offender on July 8, 2016 in two of the pending appeals before us.

In the other two appeals, he was found guilty on January 28, 2013 of obstruction of justice and sentenced on May 24, 2013 to 4 years imprisonment. [ 2 ] He is presently incarcerated in a federal penitentiary. [ 3 ] The amicus curiae observed that the Applicant did not have the tools necessary to represent himself in the appeals and was complaining that his relevant material consists of CDs, a hard drive and notes which had been put in storage by the penitentiary personnel. [ 4 ] Consequently, the amicus curiae brought an application before the Court to remedy this situation. [ 5 ] On September 29, 2016, after hearing all the parties concerned, the Court issued the following order against the Respondent, Director of the Regional Reception Center at Ste-Anne-des-Plaines, Quebec (the “September 2016 Order”) pursuant to the application filed by the amicus curiae and after hearing the parties:

i) TO REPATRIATE by bailiff to the Montreal Reception Center in Ste-Anne-des-Plaines, Quebec, ten (10) boxes, the property of Applicant, previously sent to the following storage facility in the Toronto area, the whole no later than October 7, 2016: […], Thornhill, Ontario];

ii) TO GIVE access to Mtre Paul Skolnik on or before October 28, 2016, in the company of Mtre Claudia Gagnon at the saidreception center to review the content of the said boxes to determine that which is necessary for Applicant to prepare appeal factums inthe four record numbers herein and to segregate such material; iii) TO RETAIN the balance of the materials deemed unnecessary to the instant four appeals after review by Mtre Skolnik andMtre Gagnon; iv) TO MAKE the relevant material available to Applicant in a room in the prison facility where he is detained containing acomputer, cd-rom and external hard disk as well as a Criminal Code and other legal material referred to hereinafter and subject to thefollowing:

a) Any cd-rom or hard disk not in a form acceptable according to prison security norms be transferred to acceptable cd-rom or hard diskand be made available to Applicant, at the expense of Respondent;

b) The said computer is to be connected to a printer which Applicant can use at his cost of $0.10 per page which cost includes ink;

c) Access to the said room to be two continuous hours in the morning and three continuous hours in the afternoon;

d) Criminal Code and statute materials as found in the

annexe to Martin’s Criminal Code are to be supplied to Applicant; [8] DECLARES the cost of repatriation of boxes from Toronto, including storage fees incurred and to be incurred, shipping andhandling to be for the account of Respondent and ORDERS Respondent to pay same in a timely fashion; [9] DECLARES that the computer will not be connected to the internet in accordance with prison security norms; [10] DECLARES that Applicant can purchase legal books at his expense; [11] DECLARES that this order is made without limitation to Applicant’s right to request additional legal materials, library or inter-library loans and telephone communication in accordance with prison regulations. [6] The content of the September 2016 Order was modeled on the protocol proposed by Correctional Services - Canada and attachedas

Annexe C to the affidavit of its representative, Michelle Bourbonnais, presented to the Court at the hearing leading to the issuance ofthe Order. [7] We are now seized of a motion served by the amicus curiae on October 11, 2017 seeking the following conclusions: 1. ORDER the Respondent Commissioner of Correctional Services of Canada to comply with the judgment of the Quebec Court of Appeal rendered in the present matter on September 29th, 2016. 2.

In the event that the Respondent Commissioner of Correctional Services of Canada refuses to comply with the said judgment of the Quebec Court of Appeal date September 29th, 2016, ORDER a Stay of Proceedings for Abuse of Process pursuant to arts. 7 and 24(1) ofthe Canadian Charter of Rights and Freedoms in all of the following appeal cases: CASE #500-10-005556-145 CASE #500-10-006208-167 CASE #500-10-005357-130 CASE #500-10-005444-136 [8] Mr.

Chemama has filed his own motion dated in April 2017, alleging misconduct of the representative of the Attorney Generalof Canada and various representatives of the Correctional Services and seeking as a result, a stay of proceedings. He invokes thejudgments of the Supreme Court of Canada in R. v. Carosella, (SCC), [1997] 1 S.C.R. 80 and the Ontario Court ofAppeal in R. v. Trotta, (ONCA). [9] The allegations in this regard of Mr. Chemama and the amicus curiae are detailed.

However, for purposes of our dispositions,suffice it to say that, according to them, the September 2016 Order has not been respected (either in the letter or in the spirit) and, prisonofficials have indicated that they do not consider themselves bound nor do they intend to comply with the order. Moreover, according toMr. Chemama, a large part of his materials required for the preparation of his appeal factums have been destroyed or lost by the prisonauthorities. [10] Correctional Services filed seven affidavits all dated October 16 and 17, 2017. These affidavits from employees of thepenitentiaries housing Mr.

Chemama at different times refute his allegations and those of the amicus curiae in detail with documentaryevidence in support. [11] The amicus curiae and Mr. Chemama have argued numerous inconsistencies in this position. Also, Mr.

Chemama renouncedhis initial request to cross-examine the affiants. [12] Counsel for the Attorney General of Canada representing Correctional Services contends, based on the affidavits, that theSeptember 2016 Order has been respected as far as possible and that Correctional Services intend to continue such compliance. [13] Nevertheless, we are left with several unanswered or unexplained factual elements indicating that members of CorrectionalServices do not consider the latter bound by the September 2016 Order, at least to the extent that Mr. Chemama is housed in a facility

outside the province of Quebec. The statement of the parole officer Judi Cornell from the Millhaven Institute and that of the Warden of the Millhaven facility cited by the amicus curiae are examples and are not contradicted. Also, and contrary to the order, the storage was never paid to the warehousemen, which counsel explains by “… they didn’t ask for the money.” [ 14 ] Counsel for the Attorney General of Canada has announced that Correctional Services is continuing its efforts to locate the sixty-three compact discs (CDs) which Mr. Chemama claims contain important material for his appeals and are missing.

This is despite the verbatim paragraph in the affidavits that the CDs were never received in any of the institutions where Mr. Chemama has been incarcerated. [ 15 ] Given the conflicting positions on whether there has been compliance with the September 2016 Order, but the expression of intent on behalf of Correctional Services Canada to comply, we think it appropriate to grant the motion of the amicus curiae to order the Respondent, Director of Correctional Services – Canada, to comply with the September 2016 Order.

It is essential that all prison officials receive the message that it is important that the appeal files progress toward a hearing on the merits which requires that Mr. Chemama have the tools to represent himself. This is fundamental to the control by this Court of its own process and to the protection of Mr. Chemama’s rights to have his appeals heard. [ 16 ] Applicant’s appeal factums are not filed. It would appear that trial transcripts have not been completed nor have exhibits been compiled. The matter has not advanced since the September 2016 Order.

In the present state of affairs, it is the opinion of this panel that there is no likelihood of appeal factums being filed by the Applicant, Mr.

Chemama, in the near future. [ 17 ] With a view to advancing the matter towards a hearing on the merits of the appeals and given our jurisdiction to make any order required in the interest of justice, [1] we will order the Director of Criminal and Penal Prosecutions (“DCPP”) to prepare Schedules I, II and III as provided in the Rules of this Court in each of the four appeals. [ 18 ] Counsel for DCPP has estimated that the work can be done prior to May 1 st , 2018 but this depends on the receipt of the trial transcripts. [ 19 ] As well, DCPP will be ordered to communicate any and all disclosure material in its files previously disclosed to Mr.

Chemama, in first instance, in these four matters, within a reasonable time frame, within two weeks with copies to the amicus curiae and the Court, the whole in CD format. [ 20 ] These measures should alleviate, if not completely solve any issue arising from the sixty-three CDs that Mr. Chemama maintains are missing. [ 21 ] Once the Schedules are received, the amicus curiae will review same as well as the notices of appeal filed by Applicant in each of the four files and prepare a report to the Court containing an analysis of each ground of appeal raised by Mr.

Chemama so that the Court or a judge charged with the case management of these files can make a determination and such further orders for the progress of the files as may be necessary. [ 22 ] In the circumstances, Mr.

Chemama’s motion seeking a stay of proceedings will be referred to case management with a view to this motion being heard at a future date after receipt of the report from the amicus curiae and which hearing date may be the same as a date for the hearing on the merits of the appeals. [ 23 ] With regard to the McNeil motion [2] filed by the amicus curiae , [3] the DCPP has filed an affidavit signed by Mtre Anne-Andrée Charette, who is the attorney responsible in that office to communicate evidence in situations covered by the McNeil case. [ 24 ] That affidavit tells us that the DCPP is not currently in possession of any information concerning Sergeant-Detective Borduas, which would be relevant for disclosure under the doctrine in McNeil with regard to the case of Mr.

Chemama. [ 25 ] However, the attorney of the DCPP states that his office will make such disclosure to Mr. Chemama and the amicus curiae , if and when any McNeil information is received concerning Sergeant-Detective Borduas. [ 26 ] Given such undertakings and at the Court’s suggestion, the amicus curiae has agreed to withdraw his McNeil motion without prejudice and saving recourse. FOR THESE REASONS, THE COURT: With regards to the McNeil Motion : [ 27 ] TAKES cognizance of

a) the undertaking of the DCPP to disclose any and all information regarding Sergeant-Detective Borduas of the S.P.V.M. relevant under the McNeil doctrine and concerning the Applicant if and when any such information is received by the DCPP and within a reasonable delay of such receipt and ORDERS the DCPP to give effect thereto and

b) the withdrawal of the McNeil motion by the amicus curiae , without prejudice and saving further recourse. With regard to the motion of the amicus curiae for an order that Respondent complies with the order of the Quebec Court of Appeal dated September 29, 2016, and other relief : [ 28 ] TAKES cognizance that Correctional Services – Canada will file, within two weeks, further affidavit evidence regarding the sixty-three CDs referred to in the motion materials of the amicus curiae and the Applicant; [ 29 ] GRANTS the motion, in part; [ 30 ] ORDERS Mr. Don Head, the Commissioner of Correctional Services – Canada, to comply with the Order of this Court in the

present matter issued on September 29, 2016, the text of which is incorporated into the reasons hereinabove; With regard to the motion of Mr. Chemama : [ 31 ] REFERS the motion for stay of proceedings of Mr. Chemama to case management to be heard at or prior to the hearing on the merits on the appeal but in no event prior to receipt of the report of the amicus curiae referred to below; With regard to the management of the files : [ 32 ] ORDERS the DCPP to provide to Mr.

Chemama, the amicus curiae and this Court, in CD format, on or before December 15, 2017 or at such later date determined by the Court, or one of its judges, all evidence previously disclosed to Mr.

Chemama, in first instance in the present four matters; [ 33 ] ORDERS the DCPP to prepare Schedules I, II and III in all four of the present files, on or before May 1 st , 2018, or such later date as may be determined by the Court or one of its judges and ORDERS the clerk of each court of first instance, at its cost, to assist the DCPP with regard to such task; [ 34 ] ORDERS the amicus curiae , within ninety (90) days of receipt of the Schedules I, II and III as referred to hereinabove, to review same and all notices of appeal filed by the Applicant in the present four matters and to provide this Court with a report by way of analysis of each of the grounds raised in appeal by Applicant, subject to such further delay as this Court or one of its judges may grant.

MARK SCHRAGER, J.A. ROBERT M. MAINVILLE, J.A. MARIE-JOSÉE HOGUE, J.A. Erich Chemama In person Mtre Stéphane Arcelin DEPARTMENT OF JUSTICE CANADA For Respondents Mtre Martin Chalifour CRIMINAL AND PENAL PROSECUTING ATTORNEY For Respondents Mtre Julien Bernard BERNARD ROY (Justice-Québec) For the impleaded party Mtre Paul Skolnik PAUL SKOLNIK AVOCAT The amicus curiae Date of hearing: October 23, 2017