2014 QCCA 816, 2014 QCCA 816

Tshitenge Masuku c. R. 2014 QCCA 816 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005092-125 (500-01-033868-099) DATE: APRIL 17, 2014 PRESIDING: THE HONOURABLE MR. JUSTICE ALLAN R. HILTON PATRICK TSHITENGE MASUKU PETITIONER - Accused v. HER MAJESTY THE QUEEN RESPONDENT - Prosecutrix JUDGMENT [ 1 ] The applicant seeks leave to extend the delay to appeal the verdict of conviction of second degree murder (section 235 Cr.C .) pronounced on October 6, 2011 by a jury of the Superior Court over which the Honourable Mr. Justice Michael Stober presided.

The questions of law he proposes are set out below: 6.1 The Honourable first judge erred in ruling that the video statement of the Appellant and the transcript be admitted into evidence in trial, considering all the circumstances surrounding the statement, and he committed many manifest and dominant errors: 6.1.1. The Honourable first judge did not properly considered that the Appellant slept a maximum of four (4) hours prior to his near four hours long interview, combined with the fact that he slept for approximately fifteen hours between December 19 – 22 and did not eat for two days; 6.1.2.

The Honourable first judge did not correctly evaluate the impact and the consequences of the detective's "worst case scenario" approach that in fact violated the Appellant's right to remain silent; 6.1.3. The Honourable first judge erred in concluding that the detective's utterance concerning "people would say he is making a story after seeing the disclosure of evidence" did not violate his right to remain silent and his right to a full disclosure of evidence; 6.1.4.

The Honourable first judge did not properly considered the effect of the detective's remarks regarding the Appellant "last chance" to give his statement; 6.1.5. The Honourable first judge did not properly considered that the Appellant stated his refusal to speak on eleven (11) occasions; 6.1.6. The Honourable first judge erred in concluding that the Respondent proved beyond reasonable doubt that the Appellant's statement was given freely and voluntarily; 6.2 The Honourable first judge erred in his decision to continue trial with the same jury panel on or around September 19th, 2011; 6.2.1.

The Honourable first judge, after selecting the jury on or around September 13th, 2011, did not instruct and warn them on their duty; 6.2.2.

On September 19th, 2011, it was put to the Honourable first judge attention that one of the juror searched for information about the Appellant, and the crime he was accused of, on the Internet, printed news articles and distributed them in the juror's chamber for all to consult; [Transcribed as written.] [ 2 ] The case of the Crown consisted not only of the impugned statement of the petitioner that the trial judge admitted into evidence, but testimony from witnesses to the commission of the crime that took place in a bar, a dying declaration from the victim in which he identified the applicant as the author of the assault that led to his death, as well as relevant circumstantial evidence. [ 3 ] In respect of the first series of proposed grounds of appeal, the trial judge rendered a thorough and learned judgment after hearing in particular the testimony of the applicant during the voir-dire, as well as examining the transcript of the testimony of police officers at the preliminary inquiry. [ 4 ] As far as the second series of proposed grounds of appeal is concerned, I was not provided with a transcript of the trial judge's

introductory remarks on September 13, 2011 that would allow me to verify whether he failed to instruct and warn the jury not to consult outside sources during the trial.

Once it came to the attention of the parties on September 19, 2011 that one of the jurors had printed some information about the case from the Internet and left it in the jury room, the trial judge conducted an appropriate inquiry, and with the repeated consent of the applicant's counsel at trial, concluded that there was no basis to believe that the impartiality of the jury had been compromised. [ 5 ] In a judgment being released concurrently in case 500-10-0050097-124, I explain why the applicant has satisfied the criteria enunciated in R. v.

Lamontagne [1] that would justify his proposed appeal against sentence. Those considerations apply to the same effect with respect to this application. [ 6 ] In particular, I consider the proposed grounds of appeal enumerated above to be at least arguable, which of course is no guarantee that they will succeed once the entirety of the record is examined.

FOR THESE REASONS, THE UNDERSIGNED : [ 7 ] GRANTS the motion to extend the time prescribed for the notice of appeal; [ 8 ] ORDERS that the hearing of the applicant's appeal be joined to the hearing of the deferral of his motion to appeal his sentence (case number 500-10-005097-124) in which judgment is being rendered concurrently; [ 9 ] REFERS the case to the Master of the Rolls for the establishment of a timetable for the conduct of the two appeals and a date of hearing; [ 10 ] ORDERS that the aforesaid timetable contemplate the filing of the applicant's factums in both appeals on the same date; [ 11 ] ORDERS that the aforesaid timetable contemplate the filing of the respondent's factums in both appeals 60 days after the date of filing for the applicant's factums in both appeals.

ALLAN R. HILTON, J.A. Mtre Véronique Talbot VÉRONIQUE TALBOT AVOCATE For the petitioner Mtre Alexandre Boucher CRIMINAL AND PENAL PROSECUTING ATTORNEY For the respondent Date of hearing: April 14, 2014