2011 QCCA 2025, 2011 QCCA 2025

Unofficial English Translation Racine c. R. 2011 QCCA 2025 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002505-100 / 200-10-002506-108 / 200-10-002507-106 (655-01-004361-100) (655-01-004367-107) (655-01-004362-108) DATE: November 1, 2011 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. JULIE DUTIL, J.A. PAUL VÉZINA, J.A. JÉRÔME RACINE APPELLANT – accused v.

HER MAJESTY THE QUEEN RESPONDENT– prosecutrix JUDGMENT [ 1 ] The appellant appeals from three convictions and four sentences imposed on March 29, 2010, by the Court of Quebec, Criminal and Penal Division (the Honourable Michel Dionne), in the District of Baie-Comeau.

The crimes and the sentences are set out at the beginning of the appended reasons. [ 2 ] For the reasons of Vézina, J.A., with which Hilton and Dutil, JJ.A. agree, the COURT: [ 3 ] DISMISSES the appeal from the convictions in the files bearing docket numbers 200-10-002505-100 and 200-10-002507-106; [ 4 ] UPHOLDS the sentences for the first three crimes in the files bearing docket numbers 200-10-002505-100 and 200-10-002507- 106; [ 5 ] ALLOWS the appeal from the sentence for the offence of theft (section 334(b)(

i) Cr. C .) in the file bearing docket number 200-10-002506-108 for the sole purpose of replacing “two months” by “one week”. ALLAN R. HILTON, J.A. JULIE DUTIL, J.A. PAUL VÉZINA, J.A. Mtre Jean-Claude Dufour Jean-Claude Dufour, avocats For the appelant Mtre Robin Tremblay Criminal and Penal Prosecuting Attorney For the respondent Dates of hearing: September 12 and 16, 2011

REASONS OF VÉZINA, J.A. [ 6 ] The appellant appeals from three convictions and four sentences imposed on March 29, 2010, by the Court of Quebec, Criminal and Penal Division (the Honourable Michel Dionne), in the District of Baie-Comeau. [ 7 ] The Court first convicted him of three crimes, namely in the first file: [1] [ translation ] 1st On or about March 12, 2010, at Baie-Comeau, District of Baie-Comeau, did commit an assault with a weapon against D. T., thereby committing an indictable offence under

section 267 (

a) of the Criminal Code . 2nd On or about March 12, 2010, at Baie-Comeau, District of Baie-Comeau, did knowingly utter a threat to cause death or bodily harm to D. T., thereby committing an indictable offence under

section 264.1(1) ( a )(2)(

a) of the Criminal Code . And in the second: [2] [ translation ] 3rd On or about March 12, 2010, at Baie-Comeau, District of Baie-Comeau, did have cocaine in his possession, thereby committing an offence punishable on

summary conviction under section 4(1)(3)(

b) of the Controlled Drugs and Substances Act . [ 8 ] The Court imposed the following sentences instanter for the three crimes: For the first: - 12 months’ imprisonment; - 24 months’ probation order; - DNA (section 487.051 Cr. C. ); -

Section 109 of the Criminal Code – 10 years; -

Section 743.21 of the Criminal Code – prohibition on communicating directly or indirectly with D. T. during his custody; - Confiscation and destruction of the seized drug – cocaine; - Confiscation and destruction of the machete. For the second: - 12 months’ imprisonment, concurrent with the first; - Same probation order as above.

For the third: - 12 months’ imprisonment, concurrent with the two others; - Same probation order as above. [ 9 ] Then, at the end of the hearing, when the two matters above were closed, the appellant decided to settle a third, [3] in which he pleaded guilty to having stolen a sandwich from a supermarket. The sentence, also on appeal, was: - 2 months’ imprisonment, to be served concurrently with the three other sentences.

A The convictions [ 10 ] Concerning the three convictions, the appellant invoked a single ground, namely breach of his right to counsel of his choice. [ 11 ] On the morning of the trial, the appellant asked the judge for an adjournment because he wanted to be represented by his former counsel and not by the one who had represented him since the beginning of the case and who was present and ready to proceed.

The judge refused, the trial took place as scheduled, and the appellant was defended by the counsel who was present. [ 12 ] An accused person’s right to choose counsel who will represent him or her is well-established. [ 13 ] According to the appellant, there is no exception to this fundamental right, whereas according to the respondent the right is not absolute and the judge’s refusal was justified in the circumstances – hence the discussion on appeal. [ 14 ] We shall first look at the events that led to the charges and then the conduct of the proceedings on the day of the trial.

The events [15] On March 12, 2010, the appellant attended a musical performance at the Cégep de Baie-Comeau after consuming cocaine. [16] During the intermission, the appellant, who is black, went outside, where he encountered the complainant, who made racistcomments to him. [17] The appellant grabbed a machete from the trunk of his car and swung it in the direction of the complainant. Someone called out,and the complainant turned around and just barely avoided being struck. The appellant chased him but fortunately he avoided the blows.All the people present ran away. [18] The complainant was afraid for his life.

He was found in a state of shock in the restroom of the Cégep, where he had takenrefuge. [19] A few moments later, the police officers found the appellant at the wheel of his car. His machete was underneath the seat, andthey found cocaine in his wallet. [20] The appellant was arrested and remained in detention. On March 19, the trial was set by consent for March 29. The trial [21] On the morning of March 29, counsel and the judge were ready.

The witnesses were present and the clerk called the case. [22] The appellant himself then asked that the case be adjourned because he wanted a change of counsel. [23] The appellant said he had spoken to his former counsel during the weekend, without, however, specifying whether he had givenhim a mandate and whether counsel had accepted. In fact, counsel in question was not present at the courthouse. [24] When questioned by the judge, the appellant merely reiterated that he wanted to retain his previous counsel.

He provided noexplanation and invoked no ground to justify his request for the change or to justify his making the request at the last minute withouthaving informed his counsel, the prosecution, or the court registry. [25] The trial took place. The prosecution witnesses gave their evidence and were cross-examined, and the appellant himselftestified. [26] The evidence was overwhelming. [27] An independent witness described the machete blows, which came dangerously close to the complainant, and how the peoplepresent fled. [28] The appellant admitted the factual framework.

His counsel summarized the situation with the expression [translation] “he wentballistic” because of the racist insults. [29] On appeal, the appellant did not cite an inadequacy of the defence, an unknown ground, a forgotten witness, expertise notproduced, or an aspect not covered during cross examination – nothing in fact. [30] The only matter remaining is that of counsel of his choice. Let us see what the rule is on this matter and whether the exceptionis justified here.

The rule [31] The right of an accused to retain counsel of his or her choice is based on the Canadian Charter of Rights and Freedoms.McCallen[4] is generally cited on this point: [31]

Section 10(

b) of the Charter provides: 10. Everyone has the right on arrest or detention … (

b) to retain and instruct counsel without delay and to be informed of that right;… [32] It is well established that s. 10(

b) includes not only the right to retain counsel but the right to retain the counsel of the accused’schoice and the right to be represented by that counsel throughout the proceedings. [33] In Re Regina and Speid (1983), (ON CA), 8 C.C.C. (3d) 18 (Ont. C.A.), Dubin J.A. described this as afundamental right. At p. 20, he said: The right of an accused to retain counsel of his choice has long been recognized at common law as a fundamental right.

It hasbeen carried forth as a singular feature of the Legal Aid Plan in this province and has been inferentially entrenched in the Charter ofRights which guarantees everyone upon arrest or detention the right to retain and instruct counsel without delay. However, although it isa fundamental right and one to be zealously protected by the court, it is not an absolute right and is subject to reasonable limitations.

[32] The last part of this citation shows that the rule is subject to limitations and that occasionally a judge may refuse to adjourn acase and, accordingly, oblige an accused to proceed with counsel who would not be his first choice or even in some cases to proceedwithout counsel, if the accused no longer wants to be represented by his counsel. [33] This limitation to the rule is set out explicitly in the same decision: [45] The law is clear that the decision to fix a date for trial is discretionary and that in choosing a date the court must act judicially andbalance a number of factors including the availability of an accused’s counsel of choice within a reasonable period of time.

Many of thesame factors come into play in decisions whether to adjourn a trial date in order to permit an accused’s counsel of choice to be available.The emphasis is on the reasonableness of the delay involved in accommodating the accused’s choice; if the counsel of choice is notavailable within a reasonable time, then the rights of the accused must give way to other considerations and the accused will be required,if he or she chooses to be represented, to retain another counsel who is available within a reasonable period of time: see R. v. Lai, [1991]O.J. No. 725 (Gen. Div.); Barette v.

The Queen (1976), (SCC), 29 C.C.C. (2d) 189 (S.C.C.) and R. v. Smith, (1989), (ON CA), 52 C.C.C. (3d) 90 (Ont.

C.A.). [46] In determining what is a reasonable period of time, the court will balance many factors including the reason counsel is notavailable sooner, the previous involvement of the particular counsel in the case, the public interest in having criminal cases disposed ofin an expeditious manner, the age and history of the case, the availability of judicial resources and the best use of courtroom facilities,the availability of the complainant and witnesses, the availability and use of Crown counsel and law enforcement officers and thepotential impact of the scheduling decisions on the rights of an accused under s. 11(

b) of the Charter guaranteeing a trial within areasonable period of time.

See Smith, supra, at p. 93; Lai, supra. [34] All the factors referred to above are of course important, but that of the attention due to witnesses is particularly so, in my view. [35] Witnesses are convened by court order and obliged to go to the courthouse, “forthwith”, according to the traditional formula.The Statement of Principle regarding Witnesses[5] enjoins the judiciary “to avoid repeated subpoenas to the same witness and tominimize inconvenience to witnesses;”. [36] According to the appellant, there is no exception, however, to an accused’s right to counsel of his or her choice.

He relies on theSupreme Court’s decision in Cunningham,[6] where Rothstein, J. writes: [9] An accused has an unfettered right to discharge his or her legal counsel at any time and for any reason. A court may not interfere withthis decision and cannot force counsel upon an unwilling accused (see Vescio v. The King, (SCC), [1949] S.C.R. 139, atp. 144; though exceptionally the court may appoint an amicus curiae to assist the court). Counsel, on the other hand, does not have anunfettered right to withdraw.

The fiduciary nature of the solicitor-client relationship means that counsel is constrained in his or her abilityto withdraw from a case once he or she has chosen to represent an accused.... [37] In my view, the appellant gives the sentence at the beginning of this citation a scope that it does not have. One cannotextrapolate from the “unfettered right” to discharge his or her legal counsel an “unfettered right” to the counsel of his or her choice. Thislast “unfettered right” does not exist. [38] Cunningham does not deal with the right to counsel of one’s choice but rather counsel’s right to withdraw.

It is enough tocontinue the citation to ascertain it: [9] … These constraints are thoroughly outlined in the rules of professional conduct issued by the provincial or territorial law societies[citations omitted].

This appeal raises the issue of whether a court’s jurisdiction to control its own process imposes a further constraint oncounsel’s ability to withdraw. [39] The connection made by the drafter at the beginning of the paragraph between the client’s right to discharge his or her counseland that of counsel to withdraw serves only, in my view, to highlight the less absolute nature of the second in relation to the first.Moreover, the drafter himself sets forth an exception to the absolute nature of the first, that of the amicus curiae, without discussing thefact that others may exist, because that was not the subject of the discussion. [40] Thereafter, he distinguishes between a reason based on the amount of time between the application for withdrawal and the trialand an “ethical reason” as the basis for the application.

These two elements are relevant to our case. [41] The more timing is an issue, the more circumspect the Court must be: [46] The court’s exercise of discretion to decide counsel’s application for withdrawal should be guided by the following principles. [47] If counsel seeks to withdraw far enough in advance of any scheduled proceedings and an adjournment will not be necessary, thenthe court should allow the withdrawal.

In this situation, there is no need for the court to enquire into counsel’s reasons for seeking towithdraw or require counsel to continue to act. [48] Assuming that timing is an issue, the court is entitled to enquire further.... [42] Lastly, concerning the reason for seeking to withdraw, Rothstein, J. distinguishes between whether counsel cites ethical reasonsor whether the true underlying reason is non-payment of counsel’s fees.

In the latter case, the court may dismiss the application in theexercise of its discretionary power. [43] It remains to be seen whether, in this case, the context justified the judge’s fairly exceptional measure of refusing theadjournment. The exception

[ 44 ] Clearly, timing was not an issue in this matter. The application at the very last minute, without notice to anyone, when everyone was prepared, looks very much like a delay tactic. [ 45 ] Without trying to set guidelines for a judge in such a case, one must recognize that an accused’s mere desire for a change of counsel on the morning of a trial is inadequate.

Serious reasons are required – such as a matter of ethics in the case of counsel – to adjourn a trial that is ready to go ahead, otherwise the smooth functioning of the cases before the courts would be greatly disrupted. [ 46 ] This brings us to the merits of the appellant’s application. [ 47 ] The only reason cited and reiterated for an adjournment was his decision [ translation ] “to go back to my old lawyer”. In fact, he did not discharge his current counsel, who was ready for the trial.

Nor had he retained the services of the former counsel. [ 48 ] Had he discussed the conditions of a possible mandate with him? That is not known. At the most, the appellant told the judge that his former counsel had informed him that [ translation ] “it would take him a while to read the evidence and sift through the case”.

The additional evidence adduced on appeal shows that if he had communicated with his former counsel in the preceding days, he had not concluded anything with him and that, moreover, on the morning of the trial the former counsel was informed that the appellant [ translation ] “had still not made a final decision” concerning him. This explains his absence when the trial began a little later. [ 49 ] To cite the distinction in Cunningham , it appears that this is more a matter of fees than a question of ethics. [ 50 ] We note that the appellant cited no problem with his current counsel.

There was no disagreement over the strategy to be adopted. Nor did he want to testify when counsel advised him not to do so, or the contrary. There was no lack of contact with him to prepare for the trial and there were no personality conflicts. There was nothing, except that the appellant merely stated his preference for another counsel. [ 51 ] There is a gap between preferring one counsel and having one whom you no longer want imposed on you.

Many accused would like to be represented by the best counsel, but their availability is limited and their fees are often out of reach. [ 52 ] Nothing in the appellant’s statement at the beginning of the trial leads one to believe that he had lost confidence in his current counsel, although he did express a preference for his former counsel.

Nor was anything of the sort alleged in the fresh evidence adduced in the case on appeal. [ 53 ] It appears, in fact, that he was satisfied with his counsel because, after being found guilty, he asked him to resolve another case on the spot, which was done. [ 54 ] In deciding not to adjourn the trial, so that the accused continued to be defended by his current counsel, the judge exercised discretionary power and did so correctly in my view, if one considers that: - The application was brought at the very last minute, without notice - No reason was given other than the accused’s preference for another counsel, who was not then available - The accused was represented by competent, diligent counsel, who had acted for him since the start of the case - Everyone was present and ready to proceed: the witnesses, counsel, the judge and the required support staff. [ 55 ] The accused’s fundamental right to a fair trial was respected. [ 56 ] In my view, the appellant’s motive is without merit and the appeal from the three convictions must be dismissed.

B The sentences [ 57 ] The concurrent sentences of imprisonment imposed on the appellant total twelve months, including two months for shoplifting. [ 58 ] For the first three crimes, the sentence is neither “clearly unreasonable” nor “demonstrably unfit”, according to the terms of art used to indicate the threshold for appellate intervention. [ 59 ] The judge pointed out, with reason, that it would have taken very little more to cause serious injury to the complainant and possibly to others who were present. [ 60 ] He also took the appellant’s record into consideration: [ translation ] “already several court appearances, several [sentences], including a prison sentence”. [ 61 ] The appellant had no valid excuse.

Clearly he was the victim of racist insults but, as the judge pointed out, that did not justify his going and getting a machete from the trunk of his car and using it with no consideration for the safety and lives of others. [ 62 ] Concerning the two concurrent months for shoplifting, the appellant asks for the Court to intervene so that, in the event that he re-offends, his future sentence will not be more severe because of the effect of the principle of gradation of sentences. [ 63 ] The argument appears to be somewhat unusual, but nonetheless realistic.

And in any case, the principle that a sentence must be proportionate to the gravity of the offence is just as applicable where concurrent sentences are imposed at the same time. [ 64 ] Had it not been for the three serious crimes for which the appellant received a prison sentence, one can presume that the sentence for the theft of the sandwich would have been lesser.

[ 65 ] Given the appellant’s record, a prison sentence was justified. The length of it will be reduced to one week, however. [ 66 ] In my view, the judgment of the Court should be following: DISMISSES the appeal from the convictions in the files bearing docket numbers 200-10-002505-100 and 200-10-002507-106; UPHOLDS the sentences for the first three crimes in the files bearing docket numbers 200-10-002505-100 and 200-10-002507-106; ALLOWS the appeal from the sentence for the offence of theft (section 334 ( b )(

i) Cr. C .) in the file bearing docket number 200-10- 002506-108 for the sole purpose of replacing [ translation ] “two months” by “one week”. PAUL VÉZINA, J.A.