2011 QCCA 388, 2011 QCCA 388

Fabrikant c. Canada (Attorney General) 2011 QCCA 388 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-004242-085 (500-36-004596-089) DATE: MARCH 2, 2011 CORAM: THE HONOURABLE J.J. MICHEL ROBERT, C.J.Q. PIERRE J. DALPHOND, J.A. NICOLE DUVAL HESLER, J.A. V.I. FABRIKANT APPELLANT / Applicant v. ATTORNEY GENERAL OF CANADA RESPONDENT / Respondent and ATTORNEY GENERAL OF QUEBEC RESPONDENT / Respondent and DIRECTOR, LEGAL AID (St-Jérôme) IMPLEADED PARTY / Impleaded party JUDGMENT [ 1 ] The Court is seized with a Motion for Legal Assistance filed by Mr. Fabrikant under

section 684 of the Criminal Code . An identical request for legal assistance has already been refused by the Court in the same file. [1] [ 2 ] The Court refused the first application because the appellant had not shown that he took steps to find a lawyer to represent him. [ 3 ] Mr. Fabrikant is in appeal from a judgment of the Honourable James L. Brunton of the Superior Court pronounced on September 25, 2008, dismissing his application for a reduction of the number of years of imprisonment without eligibility for parole based on

section 745.6 of the Cr.C . [ 4 ] Before the hearing of the Motion, Mr. Fabrikant informed the Court that Mtre Marie-Josée Bellemare would represent him in his file. Nevertheless, in an email dated December 8, 2010, Mtre Bellemare indicated that she would not represent Mr. Fabrikant on his Motion under

section 684 of the Cr.C . , nor would she represent Mr. Fabrikant on his appeal. [ 5 ]

Section 684 Cr.C . reads as follows: 684.

(1) Legal Assistance for appellant – A court of appeal or a judge of that court may, at any time, assign counsel to act on behalf of an accused who is a party to an appeal or to proceedings preliminary or incidental to an appeal where, in the opinion of the court or judge, it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance.

(2) Counsel fees and disbursements – Where counsel is assigned pursuant to subsection (1) and legal aid is not granted to the accused pursuant to a provincial legal aid program, the fees and disbursements of counsel shall be paid by the Attorney General who is the appellant or respondent, as the case may be, in the appeal.

(3) Taxation of fees and disbursements – Where subsection (2) applies and counsel and the Attorney General cannot agree on fees or disbursements of counsel, the Attorney General or the counsel may apply to the registrar of the court of appeal and the registrar may tax the disputed fees and disbursements. [ 6 ] Two criteria must be met to grant a request for legal assistance: (1) the lack of sufficient means to obtain assistance and (2) the interest of justice.

(1) Lack of sufficient means

[ 7 ] The applicant must demonstrate that he has no income and that legal aid has refused his claim. [2] In this case, Mr. Fabrikant informed the Court that legal aid had refused his claim in a letter dated June 14, 2010. However, Mr. Fabrikant did not file a copy of the refusal. He claims that he could not find it. Also, no proof of his income has been filed. In the circumstances, Mr. Fabrikant has failed to demonstrate that he does not have the means to obtain legal assistance.

(2) The interest of justice [ 8 ] Even if Mr. Fabrikant had filed the evidence adduced and if the first criterion had been satisfied, the Court is of the opinion that the Motion should be dismissed considering that this appeal is not prima facie meritorious. [3] [ 9 ] In order for an application for judicial review based on 745.6 Cr.C . to succeed, the applicant must prove that his situation has changed since the sentence was rendered. [4] The transcripts of the hearing reveal that Mr. Fabrikant's situation has not changed since 1992.

The factors listed by Justice Brunton in dismissing the Motion are convincing: [47] The character of the petitioner in 1992; the nature of the crime – multiple murders; the lack of personal development over the last fifteen years and the lack of psychological assessment and treatment are the factors which lead the Court to dismiss the motion.

It is simply not enough for the petitioner to advance that "I have not been violent in prison, I am immune to provocation and thus not a threat". [48] The dangerousness of the petitioner in the controlled environment of a penitentiary cannot be compared were he to be liberated. The death of four people is testimony to how the petitioner resolves conflicts when in society. Equally worrisome is that the groups of people he has entered into conflict with over the last fifteen years has expanded.

It is no longer limited to work colleagues but now includes correctional officials, doctors and justice system participants. None of the members of these groups could feel safe knowing that the petitioner was back amongst them. [49] Having decided to dismiss the motion, the Court has various options available which address the possibility of permitting the production of another one in the future. There might be a case where a detainee has just begun to address factors which caused the criminal acting out.

A court might decide to permit the presentation of another motion in two or more years in order to allow the inmate to continue his or her personal development and to establish his or her determination to lower the risk factors. [50] Such is not the portrait provided by the petitioner. It is clear and undeniable that there are no signs that the petitioner will ever change. There are no signs that the petitioner will ever allow himself to be evaluated and treated by psychologists engaged by Corrections Canada.

There is thus no justification for permitting the petitioner to ever present a s.745.6 Cr.C . motion again. [ 10 ] The Court therefore concludes that it is not in the interest of justice to grant the Motion for Legal Assistance and the same is dismissed. J.J. MICHEL ROBERT, C.J.Q. PIERRE J. DALPHOND, J.A. NICOLE DUVAL HESLER, J.A. Mr. V.I.

Fabrikant Self-represented Mtre Toni Abi Nasr Mtre Jacques Savary JOYAL LEBLANC (JUSTICE CANADA) For respondent Attorney General of Canada Mtre Carole LeBeuf CRIMINAL AND PENAL PROSECUTING ATTORNEY For respondent Attorney General of Quebec SHADLEY BATTISTA (absent) For impleaded party Director, Legal Aid (St-Jérôme) Date of hearing: December 13, 2010