2011 QCCA 2311, 2011 QCCA 2311

Unofficial English Translation Turcotte c. R. 2011 QCCA 2311 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002716-111 (200-01-138722-099) DATE: December 12, 2011 PRESIDED BY: THE HONOURABLE FRANÇOIS PELLETIER, J.A. BRUNO TURCOTTE APPLICANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] The applicant seeks an extension of the time to appeal and leave to appeal from the judgment imposing the sentence he is currently serving. The circumstances surrounding this matter are the following. [ 2 ] In early June of 2010, a jury presided over by the Honourable Mr.

Justice Richard Grenier convicted the appellant on four counts of possession of narcotics for the purpose of trafficking, one count of unlawful possession of a restricted weapon (s. 91(2) Cr. C .) and one count of unlawful possession of a restricted weapon with readily accessible ammunition (s. 95(1) Cr. C .) This last count carries a mandatory minimum sentence of three years (s. 95(2) Cr. C. ). [ 3 ] A large amount of drugs was seized at the applicant's residence, including approximately 600 grams of cocaine and over 3,000 methamphetamine pills.

The police officers also found and seized over $80,000 in cash that was hidden in various spots in the applicant's residence. [ 4 ] The applicant is a repeat offender. In 2002, he was sentenced, inter alia , to three years in a penitentiary for similar offences. [ 5 ] In June of 2010, Grenier J. handed down the sentence contemplated in the applications. In so doing, he accepted the Crown's suggestion and imposed an overall sentence of seven years' incarceration. This included concurrent sentences, the harshest of which (four years) were for possession of cocaine and methamphetamine for the purpose of trafficking.

In addition to the concurrent sentences, the applicant also received a consecutive sentence of three years for the offence set out in s. 95(1) of the Criminal Code . [ 6 ] In a timely manner – more precisely, in July of 2010 – the applicant launched an appeal from the guilty verdict and sought leave to appeal the sentence. A judge of this Court referred the application to the panel that would eventually be asked to decide the appeal against the verdict. [ 7 ] On January 25, 2011, the applicant filed a proceeding entitled [ translation ] "Discontinuance of appeal against sentence".

Strictly speaking, it was a discontinuance of the application for leave to appeal. The applicant's decision to withdraw his application for leave sprang from documents he received from Correctional Service Canada that suggested he would soon be eligible for parole. Only two days after filing the discontinuance, however, the applicant learned that the information was erroneous.

In his application for an extension, he describes the events following the discovery of the error in the following manner: [ translation ] [12] The applicant-appellant immediately contacted his lawyer, who told him that it was too late now because he had discontinued his appeal against the sentence, but that there was no need for concern because there was a good chance that his appeal on the merits before the Court of Appeal would succeed. [ 8 ] The applicant accepted his lawyer's approach, especially since he did not wish to incur the additional legal costs and fees that an attempt to revive the application for leave would entail.

This decision turned out to be fatal, however, when the Court dismissed the appeal from the conviction in September of 2011. [ 9 ] It was following this failure on the merits that the applicant approached lawyers who had not been involved in the trial. They advised him to file the application for an extension and for leave to appeal that is now before me. [ 10 ] The requirements to obtain an extension of the time to appeal are well known. The applicant must establish: [1]

1. an intention to appeal while the right of appeal existed; 2. arguable grounds of appeal; 3. reasonable diligence in seeking to exercise the right to appeal within the prescribed time. [ 11 ] We may also refer by analogy to s. 59(1) of the Supreme Court Act . [2] In R. v. Roberge , [3] the Supreme Court described the factors circumscribing the exercise of the discretion to extend the time period for appeal set out in this provision: 1. Whether the applicant formed a bona fide intention to seek leave to appeal and communicated that intention to the opposing party within the prescribed time; 2.

Whether counsel moved diligently; 3. Whether a proper explanation for the delay has been offered; 4. The extent of the delay; 5. Whether granting or denying the extension of time will unduly prejudice one or the other of the parties; and 6. The merits of the application for leave to appeal. [ 12 ] The Supreme Court went on to state: Notwithstanding our sympathy for the difficulties experienced by counsel for the applicant’s colleagues, we are all of the view that this is not a case in which an extension of time should be granted.

Although the affidavit evidence indicates that the applicant formed a bona fide intention to seek leave to appeal and that intention was communicated to the respondent within the prescribed time, the delay in this case is not adequately explained. The four-month delay beyond the 60 days prescribed under the Act is lengthy. The affidavit filed in this case demonstrates, in our view, that much of the delay can be ascribed to a failure to accord necessary priority to this application for leave to appeal.

Ultimately, an application for leave to appeal to this Court must be viewed as a matter of priority that cannot be put off indefinitely until it can be accommodated within counsel’s schedule. [4] [ 13 ] In Salamé v.

R ., [5] my colleague Morissette, J.A. expressed the opinion that the priority standard articulated in Roberge [6] does not necessarily apply with the same force in the assessment of the third criterion in Lamontagne . [7] I agree. [ 14 ] Let us apply these principles to the case before us. [ 15 ] At the outset, I note that the applicant meets the first requirement in Lamontagne . [8] Not only did he intend to appeal, he did so, and in a timely manner.

I would add that the reasons he provides to explain his later discontinuance of his application for leave are a priori reasonable. [ 16 ] In my opinion, however, his fulfilment of the third requirement is more problematic. The applicant has known since January of 2011 that he had filed a discontinuance on the basis of erroneous information. As noted above, he explains his delay in acting by his acceptance of his then-lawyer's analysis of the situation.

According to this version, at the urging of his lawyer, he believed that there was no need for concern given the good chances of success in the appeal against the conviction. [ 17 ] It should be stated here that paragraph 12 of the application for an extension, quoted above, [9] is not intended as an allegation of professional incompetence, especially since the applicant's new lawyer did not deem it appropriate to meet the requirements of s. 26 of the Rules of the Court of Appeal of Quebec in Criminal Matters , [10] which provides the guidelines for an allegation of professional incompetence.

Indeed, at the hearing, she stated clearly that she did not allege incompetence on the part of counsel representing the applicant at trial. Rather, she argued that incomplete or inadequate information contributed to the applicant's decision not to present a new application once the error was known. [ 18 ] In this context, I find that the ground put forward concerns the reasonableness of the choice causing the long delay before acting once the error was discovered.

Relying on the explanations provided by his lawyer at the time, the applicant took a gamble, betting on the success of the appeal against the conviction. The choice appeared to be in his favour in that it allowed him to avoid incurring additional costs to revive the application for leave to appeal the sentence. [ 19 ] A strategic choice later proved to be ineffective does not in itself confer a reasonable status on a delay in moving to appeal against a sentence that the party claims to have always believed to be demonstrably unfit, regardless of the merits of the conviction.

In this case, the rule of priority set out in Roberge , [11] even if applied flexibly when considering the third criterion in Lamontagne , [12] does not justify a conclusion favourable to the applicant. [ 20 ] That said, another ground also leads me to dismiss the application for extension.

In my view, the proposed appeal does not have a reasonable chance of success. [ 21 ] It is useful to keep in mind the principle, by now well established in the case law, whereby the limits of this Court's power to intervene are very narrowly circumscribed. [13] It falls to the trial judge to hand down the appropriate sentence in each case, subject to the guidelines and fundamental principles set out in the Code and in the case law. [14] According to the time-honoured phrase: [15] … absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. [ 22 ] In this case, the applicant submits the following grounds:

(

a) The overall sentence of seven years is patently unreasonable in the circumstances; (

b) The Superior Court judge erred in fact and in law by ordering a consecutive sentence on the seventh count; (

c) The trial judge rendered his sentence before counsel for the applicant had the opportunity to submit all his arguments, thus violating the audi alteram partem rule. [ 23 ] None of these grounds is likely to lead a panel of the Court to exercise its limited power of intervention. [ 24 ] Regarding the first ground, I find that the seven-year sentence is not demonstrably unfit.

On this point, the following elements are worth noting: • The objective gravity of the offences of possession for the purpose of trafficking is very high, since they carry a potential life sentence; [16] • Significant amounts were seized; • The applicant possesses all the sophisticated equipment of a trafficker in such substances, including: - devices to grind the cannabis and mix the cocaine; - electronic scales; - a Jackock press to press hashish or pills; - an innumerable supply of small, Ziploc-type bags; - a sealing machine; - a complete camera surveillance system. • He was in possession of $80,000 in cash; • He is a repeat offender with a prior conviction for a similar offence, which is an aggravating factor within the meaning of s. 10(2)(

b) of the Act ; [17] • In any event, the rule of the gradation of sentences requires that the sentence be greater than three years' incarceration. • The applicant does not – and indeed, by all appearances, cannot – invoke any mitigating circumstances; • Moreover, the offence he has committed is distinct from that of possession of narcotics, which itself carries a minimal sentence of three years in a penitentiary (s. 95(2) Cr.

C .). [ 25 ] Given all these factors, in my view, the applicant is clearly wrong to argue as his first ground that the overall sentence of seven years is demonstrably unfit. [ 26 ] The second and, in my opinion, principal ground of appeal concerns the fact that the sentence imposed for the offence defined in s. 95(1) of the Criminal Code is consecutive. Counsel for the applicant maintains that the judge erred in law by believing that he was bound to impose a consecutive sentence because of the minimum sentence under s. 95(2) Cr.

C. [ 27 ] In my view, the judge did not make the error alleged by counsel for the applicant, whose criticism is based on an isolated reading of a comment made by the judge in a discussion with counsel for the applicant in the course of arguments. Referring to Parliament’s intent to impose harsh punishment for the offence defined in s. 95(1) of the Criminal Code , the judge stated the following: [ translation ] THE COURT: You ... there is a minimum for the possession of a weapon... Mtre MICHEL BARRETTE For the defence: That's right.

THE COURT: That minimum, if it we make it concurrent with the sentence for narcotics... Mtre MICHEL BARRETTE For the defence: Hmm hmm.

THE COURT: ... it would remove what the legislature sought to punish, which was possession of a weapon, particularly a loaded weapon or a weapon with ammunition next to it, particularly in the case of drug traffickers.

So, whatever it ... [ 28 ] The judge immediately continued, however, with a reference to the reasonableness of the overall sentence sought by the Crown. [ translation ] THE COURT: I will tell you, I don't find your colleague's suggestion to be exaggerated, and even if he had suggested 8 years, I wouldn't have said that it made no sense either. [ 29 ] In short, although he could have proceeded differently, the judge used the consecutive sentence mechanism to determine the overall sentence that appeared appropriate to him in the circumstances.

And indeed, the law permitted him to order a consecutive sentence in this case. Subsection 718.3(4) of the Criminal Code circumscribes the judge's discretion in this respect, and in this case, he acted within the boundaries therein defined, since he found the applicant guilty of more than one offence and imposed separate sentences for each. I also note that, on the facts of the case, the offence defined in s. 95(1) of the Criminal Code was committed separately from the various crimes of possession for the purpose of trafficking of which the applicant is guilty.

The judge was therefore free to impose a consecutive sentence in this regard and, as noted above, on the face of the record, he also did not commit an obvious excess of jurisdiction that would authorize a panel of this Court to find that there was a violation of the principle in s. 718.2 (

c) of the Criminal Code. [ 30 ] As for the third and final criticism raised by the applicant, whereby the judge did not comply with the audi alteram partem rule, it is dispelled by the transcript from the mechanical recording. While the judge did indeed have a discussion with counsel for the applicant, said counsel was in no way prevented from submitting his grounds. [ 31 ] Therefore, on the whole, I find that neither the motion for an extension of time to appeal nor the motion seeking leave to appeal should be granted.

FOR THESE REASONS, THE UNDERSIGNED [ 32 ] DISMISSES the motion for an extension of time to appeal; [ 33 ] DISMISSES the motion for leave to appeal; FRANÇOIS PELLETIER, J.A. Mtre Alexandra Longueville Raby, Dubé, LeBorgne For the appellant Mtre Régis Boisvert Department of criminal and penal prosecutions For the respondent Date of hearing: November 29, 2011