2016 QCCA 664, 2016 QCCA 664

Odumosu c. R. 2016 QCCA 664 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005810-153 (500-01-064335-117, 500-36-007467-155) MINUTES OF THE HEARING DATE: April 13, 2016 CORAM: THE HONOURABLE FRANÇOIS DOYON , J.A. MARIE ST-PIERRE , J.A. ROBERT M. MAINVILLE , J.A. APPELLANT ATTORNEY KOLAPO DOLAPO ODUMOSU IN PERSON RESPONDENT ATTORNEYS HER MAJESTY THE QUEEN Mtre PIERRE-OLIVIER BOLDUC Mtre DIONISIOS GALIATSATOS ( Directeur des poursuites criminelles et pénales ) On appeal from a judgment rendered on December 9, 2014, by the Honourable Judge Denis Lavergne, of the Court of Quebec, district of Montreal.

DESCRIPTION : Conviction – intimidation Motion for authorization to adduce fresh evidence ( Section 683(1) of the Criminal Code and sections 26 and 54 of the Rules of the Court of Appeal in Criminal Matters ) Clerk: Shirley Thomas Courtroom: Pierre-Basile-Mignault HEARING 9: 32 Beginning of the hearing. 9: 33 Exchange between Justice Doyon and Mr Odumosu. 9: 33 Arguments by Mtre Galiatsatos. 9: 44 Mtre Brouillette is not a party in this case. However, the Court agrees to hear her arguments. 9: 44 Recess. 9: 50 Resumption of the hearing. 9: 50 The Court informs Mr.

Odumosu that it will not be necessary to hear him. Exchanges between Justice Doyon and Mr Odumosu. 9: 51 By the Court: Judgment – see page 3. 9: 51 Conclusion of the hearing. SHIRLEY THOMAS Clerk BY THE COURT JUDGMENT [ 1 ] The appellant Kolapo Dolapo Odumosu has appealed a judgment of the Court of Quebec, Criminal and Penal Division (the Honourable Judge Denis Lavergne), rendered on December 9, 2014, which found him guilty of one count of intimidation and a further count of obstructing justice.

It should be noted that the appellant is self-represented. [ 2 ] The Court concludes that the appeal must be allowed for two reasons: first, the circumstances in which the appellant’s counsel obtained permission to cease acting for him; and, second, the language of the trial. [ 3 ] The trial was held on September 3, 2014. The date had been fixed on March 27, 2013. Without prior notice to anyone, the appellant’s counsel presented a verbal motion to cease representing her client.

As grounds, she invoked the client’s absence of cooperation, the fact that she had been unable to communicate with him since March 27, 2013 and the resulting absence of preparation. [ 4 ] The exchange between the appellant’s counsel and the judge on this point occurred in French. The appellant is English- speaking. He had great difficulty in responding to the request of his lawyer and in meeting the concerns of the judge. In the result, the lawyer left the file.

[ 5 ] Even if counsel did perhaps have the right to cease acting for the appellant, [1] it remains that her departure from the file, on the very morning of the trial and without warning, placed the appellant in an untenable position. The case was not a simple one. The judge was plainly reticent to adjourn the trial [2] (which had not been postponed until that time), even though the appellant did not explicitly ask for an adjournment and, as the balance of the trial would demonstrate, the appellant was not in a position to represent himself adequately.

In the circumstances of the present case, an adjournment was required. The judge, however, addressed the appellant as follows: Bon. Monsieur, voici ce qu’on va faire, d’abord, je vous rappelle, parce que vous semblé un peu mêlé. […] Alors, je vais autoriser maître Brouillette à cesser d’occuper pour les raisons évidentes que je viens d’expliquer. Quant à vous, vous allez rester à la disposition du tribunal, parce que l’avocat de la poursuite a des vérifications à faire. Une fois qu’elles auront été faites, il m’expliquera ce qu’il entend faire et on verra si on peut procéder.

Et si la réponse, après ces vérifications-là, est affirmative, on va procéder, monsieur . Vous vous assoirez, vous poserez des questions aux témoins, le cas échéant, et après ça, vous exposerez votre point de vue si vous voulez, je vous expliquerai comment on va faire, mais on ne remettra pas le procès quand ça fait plus de (12) mois qu’il a été fixé, que vous devez être au courant que votre rendez-vous avec le tribunal c’était aujourd’hui. [Emphasis added.] [ 6 ] The Crown completed the verifications alluded to by the judge and stated that it was ready to proceed.

The trial took place mostly in English but also partly in French. The appellant defended himself, proceeded with cross-examinations and testified, but all this, with difficulty. In the end, he was found guilty. [ 7 ] The whole of the trial shows the appellant’s incapacity to represent himself in an acceptable manner in such a short delay. [ 8 ] It goes without saying that the decision whether or not to adjourn a trial is the result of the exercise of discretion on the part of a trial judge that merits deference on appeal: R. v. Gaudreau , 2015 QCCA 766 .

Notwithstanding this principle, the Court must intervene in this case. The judge may well not have anticipated all the difficulties that the appellant would face, but it is nevertheless true that the trial as a whole shows that the judge did not adequately measure the extent of the prejudice that would be caused to the appellant by proceeding without an adjournment. [ 9 ] Moreover, the presence of an interpreter here is not determinative.

By reason of simultaneous translation, which seems to have been used quite often during the hearing of the counsel’s motion and sometimes during the trial as well, it is impossible to discern whether important parts of the discussions were in fact translated and, if they were, whether the translation was adequate. [ 10 ] In sum, the fairness of the trial is at issue and a new trial is required to remedy the prejudice suffered by the appellant.

FOR THE FOREGOING REASONS , the Court: [ 11 ] ALLOWS the appeal; [ 12 ] ORDERS a new trial. [ 13 ] DECLARES that the appellant’s motion to adduce new evidence is therefore moot. FRANÇOIS DOYON, J.A. MARIE ST-PIERRE, J.A. ROBERT M. MAINVILLE, J.A.