2022 QCCA 1570, 2022 QCCA 1570

McKillop c. R. 2022 QCCA 1570 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-007909-227 ( 550-01-105293-189 ) MINUTES OF HEARING CAUTION: A PUBLICATION BAN WAS ISSUED IN THE FIRST INSTANCE PURSUANT TO S. 486.4

(1) CR.C. PROHIBITING THE PUBLICATION OR BROADCAST IN ANY MANNER OF ANY INFORMATION THAT WOULD IDENTIFY THE VICTIM OR A WITNESS. DATE: November 17, 2022 THE HONOURABLE FRÉDÉRIC BACHAND, J.A. APPLICANT COUNSEL Hamish McKillop Mtre Diane Magas Absent RESPONDENT COUNSEL HIS MAJESTY THE KING Mtre Francis Villeneuve-Ménard ( Director of Criminal and Penal Prosecutions ) By videoconference DESCRIPTION: Motion to extend the time for appeal. Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING Continuation of the hearing of November 16, 2023. BY THE JUDGE: Judgment – see page 3.

Mélanie Camiré, Clerk at the hearing JUDGMENT CAUTION: A PUBLICATION BAN WAS ISSUED IN THE FIRST INSTANCE PURSUANT TO S. 486.4

(1) CR.C. PROHIBITING THE PUBLICATION OR BROADCAST IN ANY MANNER OF ANY INFORMATION THAT WOULD IDENTIFY THE VICTIM OR A WITNESS. [ 1 ] This is an application for an extension of the time to seek leave to appeal the sentence of 21 months’ imprisonment the applicant received after he was found guilty of sexual and common assaults against his spouse. * * * [ 2 ] The application is based on section 678(2) Cr.C . , which grants the Court or a judge thereof a power which, while discretionary, is not unfettered. Caselaw has established that the applicant is normally required to show:

i) an intention to appeal within the applicable time limit; ii ) reasonable diligence in the exercise of their right to appeal; and iii ) arguable grounds of appeal. [1] These criteria are not to be applied mechanically, as the overarching consideration always remains whether the extension sought is in the interest of justice in light of all relevant circumstances. [2] This explains, for example, why the reasonable diligence requirement may be applied less stringently where the grounds of appeal appear particularly strong. [3] * * * [ 3 ] My review of the record and the parties’ submissions leads me to the conclusion that the application ought to be dismissed. [ 4 ] The applicant was convicted on October 16, 2019, and he appealed that judgment within the applicable time limit.

The sentence was imposed on June 9, 2021, and he lost no time in both seeking his release pending the appeal from conviction [4] and subsequently asking for the variation of the conditions of his release. [5] [ 5 ] He was, however, nowhere nearly as diligent in appealing the sentence.

While I am prepared to accept his assertion that he formed the intention to seek leave to appeal the sentence within the applicable time limit and that he expressed that intention to the respondent shortly thereafter, on August 1, 2021, his explanation for waiting another 15 months or so before filing the current application is not compelling. [ 6 ] First, his lawyer’s assertion that she believed the sentence could be appealed by simply modifying the notice of appeal relating to the conviction rings hollow given that she never took any steps towards that end.

Moreover, while I am sensitive to personal challenges the applicant’s lawyer faced from June 2021 onwards, those circumstances cannot account for the 17 months that passed before the application was filed. The record shows that she continued to practise during that period and that she focussed her attention and energy on what she considered to be more important matters.

I am particularly struck by the fact that a swifter response was not given to the respondent’s clear statements — made in emails exchanged in the spring of 2022 — to the effect that it would oppose any application seeking an extension of the time to appeal.

Overall, I am left with the rather strong impression that “much of the delay can be ascribed to a failure to accord necessary priority to this application for leave to appeal”. [6] [ 7 ] Given the significant delay at issue here as well as the applicant’s failure to exercise his right to appeal diligently, I would only be prepared to grant his application if I were convinced that the proposed grounds of appeal appeared to be particularly meritorious. However, that is not the case.

Those grounds question the overall fitness of the sentence in light of errors of fact that the sentencing judge allegedly made while considering some aggravating factors, specifically regarding the nature of the physical interference suffered by the complainant.

Contrary to what the applicant claims, the excerpts from the transcripts filed in support of his application — especially when considered in light of other excerpts filed by the respondent — do not clearly show that the judge misinterpreted relevant aspects of the complainant’s testimony. [ 8 ] Furthermore, even assuming that the judge did misunderstand the complainant’s testimony in some respects, the applicant’s submissions regarding the impact of such errors on the overall fitness of a sentence of 21 months’ imprisonment do not appear to be particularly strong.

As correctly noted by the respondent, “there is no type of hierarchy of physical acts for the purposes of determining the degree of physical interference”. [7] In addition, and as noted by the judge in his November 18, 2020, judgment denying a conditional discharge, the applicant admitted not only that he often initiated foreplay without the complainant’s consent and insisted and argued with her — sometimes for hours — with the intent of persuading her to have sex with him, but also that he was occasionally physically violent with her.

Also noteworthy is the fact that the applicant takes no issue with the judge’s findings to the effect that, after his arrest, he continued to minimize his actions, to ascertain his “right” to engage in sexual activities with the complainant and to portray her as an “extreme feminist” who is responsible for all his problems.

[ 9 ] In sum, I am of the view that the interest of justice would not be served by allowing the applicant to file an application for leave to appeal the sentence at this very late stage. FOR THESE REASONS, THE UNDERSIGNED: [ 10 ] DISMISSES the application to extend the time to seek leave to appeal the sentence imposed on June 9, 2021. FRÉDÉRIC BACHAND, J.A.