2019 QCCA 1123, 2019 QCCA 1123

Y.Z. c. R. 2019 QCCA 1123 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007035-197 (500-01-138839-169) DATE: June 25, 2019 BEFORE THE HONOURABLE MARIE-FRANCE BICH, J.A. Y. Z. APPLICANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT [ 1 ] On January 23, 2019, a judge of the Court of Québec found the applicant guilty of one count of criminal harassment [1] ( s. 264(1) (3) (

a) Cr.C . ). [2] On February 22, 2019, the applicant, acting without counsel, [3] filed in the Office of the Superior Court a “Motion for leave to appeal from a conviction on a ground that involves questions of law,” which appears on the record of said Court as an “ avis d’appel ” (notice of appeal).

On April 5, 2019, upon a motion for dismissal filed by the respondent, a judge of the Superior Court decided as follows: Because the chefs concerning are taken by indictable offence, the Appeal must be filled before the Court of Appeal and not before the Superior Court, further the motion is stricken from the docket. [Verbatim transcript] [ 2 ] On April 1, 2019 (and most likely after receiving the respondent’s above-mentioned motion for dismissal), however, the applicant had already filed in the Office of the Court of Appeal a notice of appeal and a motion for leave to appeal from his conviction.

On April 25, 2019, Marcotte J.A. rendered the following judgment on said motion for leave: [1] Seeing that the Motion for leave to appeal from a conviction on a ground that involves a question of fact has been filed outside the 30 day time limit; [2] Seeing that the undersigned has no jurisdiction to adjudicate the Motion as a result in the absence of a Motion to extend the delay to appeal; FOR THESE REASONS, THE UNDERSIGNED: [3] STRIKES the Motion for leave to appeal from a conviction on a ground that involves a question of fact. [4] [ 3 ] On April 30, 2019, the applicant consequently filed in the Office of the Court an amended “Motion for leave to appeal from a conviction on a ground that involves a question of fact” and an amended “Notice of appeal from a conviction that involves a question of law alone.” It is to be understood from both pleadings that, pursuant to s. 678(2) Cr.C . , the applicant seeks an extension of the time limit within which his notice of appeal and motion for leave to appeal should have been filed (that is, 30 days from the date of the judgment a quo , pursuant to s. 23 of the Rules of the Court of Appeal of Quebec in Criminal Matters ). [ 4 ] The decision to grant such an extension, while discretionary, is subject to the following three conditions, which are cumulative and must be applied with a certain flexibility, in the interest of justice: (1) an intention to appeal while the right of appeal existed, (2) reasonable diligence in seeking to exercise the right to appeal within the prescribed time limit, and (3) arguable grounds of appeal. [5] In order to determine whether or not these conditions are satisfied, various factors will be taken into consideration, such as (1) whether the applicant formed the intention to appeal or seek leave to appeal and communicated that intention to the respondent within the prescribed time limit, (2) whether the applicant, personally or through 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 of the parties, and (6) the merits of the grounds of appeal. [6] [ 5 ] In the present case, the applicant expressed his intention to appeal his conviction and communicated that intention to the respondent within the prescribed time limit.

The first condition of the above test is thus satisfied. [ 6 ] Unfortunately, the applicant erroneously filed his appeal pleadings in the Superior Court, relying upon s. 839 Cr.C . , when he should have filed them in the Court of Appeal, pursuant to s. 673 and 675 Cr.C . As soon as he was informed that he could not appeal his

conviction to the Superior Court, however, he filed both a notice of appeal and a motion for leave in the Office of the Court of Appeal, but without seeking an extension of the time limit, as he then should have. Five days after Marcotte J.A. rendered judgment and pointed out this omission, he filed an amended notice of appeal and an amended motion for leave to appeal and sought the extension of the time limit [7] . [ 7 ] Did the applicant act diligently and satisfy the second condition of the applicable test? Considering the circumstances, the answer to that question is affirmative.

It is true that the lack of information or the absence of counsel does not necessarily constitute a valid excuse for not acting within the prescribed time limit, although it may be given some consideration, depending on the context. That being said, in view of the fact that the applicant is not fluent in English and does not speak French, it is best to recognize that he faced a major hurdle. He also corrected his mistakes as soon as he became aware of them or received the proper information.

Altogether, he acted diligently enough, and the respondent, incidentally, does not dispute the point. [ 8 ] The motion for an extension, however, fails on the third condition: with all due respect, the notice of appeal and the motion for leave to appeal, as written, do not disclose arguable grounds of appeal. [ 9 ] Both pleadings refer to the same errors, or similar ones, by the trial judge. These errors are described as involving questions of law in the notice of appeal and questions of fact in the motion for leave: Notice of appeal, April 30, 2019, para. 7 Motion for leave, April 30, 2019, para. 7 7.

The appellant wishes to appeal his conviction entered on the following grounds: 7. The appellant seeks leave to appeal this conviction entered on the following grounds: 7.1 The trial judge erred in law by concluding that arbitrary decision of harassment, as no evidence or photos shown that appellant reached their place;

a) The trial judge erred in fact by concluding that arbitrary decision of harassment, as no evidence or photos shown that appellant reached their place; 7.2 The trial judge erred in law that he illegally accepted the lie and perjury by the witnesses;

b) The trial judge erred in fact that he illegally accepted the lie and perjury by the witnesses; 7.3 The trial judge erred in law that he always bias to prosecutor and witnesses, there is no equal for everyone before the law;

c) The trial judge erred in fact that he always bias to prosecutor and witnesses, there is no equal for everyone before the law; 7.4 The trial judge erred in law that he discriminated to appellant through all hearings, appellant and appellant’s lawyer was rebuked by the judge in the court in past 2 years.

d) The trial judge erred in fact that he discriminated the appellant through all hearings, appellant and appellant’s lawyer was rebuked by the judge in the court in past 2 years. 7.5 The trial judge seriously erred in law that he kept one eye open and one closed for perjury by the prosecutor and police

e) The trial judge seriously erred in fact that he kept one eye open and one closed for perjury by the prosecutor, together police 7.6 The trial judge erred in law by concluding that he abused power and authorities.

f) The trial erred in law by concluding that wrongful names of appellant, means clearly the judge is irresponsible for his judgement or decisions. 7.7 The trial erred in law by concluding that wrongful names of appellant, means clearly the judge is irresponsible for his judgement or decisions.

g) The trial judge erred in fact by concluding that he abused the power and authorities. [ 10 ] With all due respect, these grounds are unsustainable on the face of the record as constituted. [ 11 ] Allegations of bias, abuse of power and discrimination. The allegations of bias, abuse and discrimination brought against the judge of the Court of Québec are entirely unsubstantiated. Needless to say, finding a person guilty of a criminal offence is not, in and of itself, an indication that the judge was biased or abusive or that he discriminated against the accused.

Neither is the fact that the judge dismissed, even repeatedly, the motions or objections made by one party during the pre-trial phase of the proceedings or at trial. [ 12 ] Allegations of bias, abuse of power and discrimination are very serious and they cannot simply be laid out without any detail. In the present case, in what manner did the trial judge rebuke the applicant or the applicant’s lawyer or commit “an abuse of power?” What are the precise facts that support the applicant’s claim of discrimination or bias, or that are such as to appear discriminatory or give rise to a reasonable apprehension of bias?

The notice of appeal and the motion for leave do not provide any specific explanation or example of such conduct nor do they provide any concrete fact that would support such allegations.

Nothing in the applicant’s oral arguments or in the documents annexed to the notice of appeal and the motion for leave, as they stand, can justify the slightest doubt about the trial judge’s conduct in that regard. [ 13 ] The same can be said, generally, of the applicant’s allegation of perjury and lies by the police and other witnesses (including the Complainants), and lack of integrity on the part of the prosecutor, claims that are also unsubstantiated.

At the hearing before the undersigned, the applicant attached great importance to the fact that the prosecutor and the police officers who were to testify were seen together in a cubicle at the courthouse, which he considers to be evidence of collusion or conspiracy, but which is not sufficient to establish either, in light of the applicable legal rules.

[ 14 ] It is worth mentioning that the applicant filed into the appeal record a complaint against the trial judge, dated March 28, 2019, which he apparently addressed to the Canadian Judicial Council, and in which he also indicates that he intends “to write to The Queen Her Majesty to disclose abuse of power and authorities of judge, prosecutor and police.” The Conseil de la magistrature du Québec is also seized of a complaint, [8] receipt of which was acknowledged in a letter dated May 3, 2019.

The applicant’s complaint, however, although it contains many accusations against the Complainants, the judge, the prosecutor and the police, does not constitute evidence thereof. Other than improbable inferences drawn from facts that do not appear relevant, it offers no specifics and does not support the allegations of bias, abuse or discrimination found in the notice of appeal and the motion for leave to appeal. [ 15 ] Other grounds of appeal. The other grounds of appeal essentially raise questions of fact.

The applicant, who seeks to have his conviction set aside, asks the Court of Appeal to “substitute an acquittal for the judgment rendered by the trial judge.” [9] He is, in reality, inviting the Court to re-try the case and reassess all of the evidence.

Considering the standard of appellate review in such matters, the appeal has no reasonable chance of success. [ 16 ] In particular, the fact that there were no photos attesting to the presence of the applicant at the Complainants’ residence is not a sign of any palpable and overriding error committed by the judge, who concluded otherwise on the basis of the Complainants’ testimony, in particular.

Given the deferential standard of review in matters of credibility, the Court of Appeal will usually not interfere with such findings [10] and the applicant’s pleadings contains no element that would, exceptionally, require referring his case to the Court for further examination. * * [ 17 ] On the whole, the grounds of appeal, as presented, do not appear sufficiently serious or arguable to justify extending the time limit and granting leave. * * [ 18 ] To summarize, the applicant seeks the extension of the time limit to file his appeal pleadings.

Pursuant to s. 678(2) Cr.C . , as interpreted and applied by a long line of cases, he bears the burden of establishing the following three, cumulative conditions: (1) an intention to appeal while the right of appeal existed, (2) reasonable diligence in seeking to exercise the right to appeal within the prescribed time limit, and (3) arguable grounds of appeal. [ 19 ] The applicant’s situation fulfills the first two conditions, but not the third one, since the grounds of appeal asserted in both his notice of appeal and his motion for leave to appeal do not meet the applicable threshold. [ 20 ] For these reasons, the motion to extend the time limit will be dismissed, which leaves the undersigned no choice but to dismiss the motion for leave to appeal.

This also means that the notice of appeal, in both its original and amended versions, was filed without right.

FOR THE FOREGOING REASONS, THE UNDERSIGNED: [ 21 ] DISMISSES the motion to extend the time limit (as contained in the latest versions of the “Notice of appeal from a conviction on a ground that involves a question of law alone” and the “Motion for leave to appeal from a conviction on a ground that involves a question of fact”, both dated April 208, 2019 and filed on April 30, 2019); [ 22 ] CONSEQUENTLY, DISMISSES the “Motion for leave to appeal from a conviction on a ground that involves a question of fact”; [ 23 ] DECLARES that the “Notice of appeal from a conviction on a ground that involves a question of law alone”, in both its original and amended versions, was filed without right.

MARIE-FRANCE BICH, J.A. Mr. Y. Z. In person Mtre Marie-Ève Mayer Director of Criminal and Penal Prosecutions For the Respondent Date of hearing: May 16, 2019