2014 QCCA 116, 2014 QCCA 116

Fabrikant c. Canada (Attorney General) 2014 QCCA 116 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-004242-085 ( 500-36-004596-089 ) MINUTES OF THE HEARING DATE: January 15, 2014 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. NICHOLAS KASIRER, J.A. CLAUDE C. GAGNON, J.A. APPELLANT ATTORNEY(

S) VALERY FABRIKANT In person RESPONDENTS ATTORNEY(

S) ATTORNEY GENERAL OF CANADA ATTORNEY GENERAL OF QUEBEC Mtre Éric Lafrenière (absent) Mtre Michelle Lavergne (absent) Public Prosecution Service of Canada Attorney Mtre Carole Lebeuf Criminal and penal prosecuting attorney IMPLEADED PARTIES ATTORNEY(

S) DIRECTOR, LEGAL AID WARDEN N. PAQUETTE Absent On appeal from a judgment rendered on September 25, 2008 by the Honourable James L. Brunton of the Superior Court, District of Montreal NATURE OF THE APPEAL : Motion under

section 745.6 Criminal Code Clerk: Marcelle Desmarais Courtroom: Antonio-Lamer HEARING 9 h 33 Beginning of the hearing. BY THE COURT: Judgment on the request by the appellant to produce Supplemental

Schedule 3.- see page 3. 9 h 34 Submissions by Mr Valery Fabrikant. Mr Fabrikant asks for permission to file additional documents that were before Mr Justice Brunton in first instance. 9 h 36 Suspension 9 h 39 Resumption BY THE COURT: Judgment on the oral motion to produce additional documents. – see page 3. 9 h 40 Submissions by Mr Valery Fabrikant. Mr. Fabrikant asks the recusation of the whole panel and the individual recusation of the Honorable Mr. Justice François Doyon. 9 h 46 Suspension. 9 h 50 Resumption. BY THE COURT: Judgment on the motion of recusation. – see page 3. BY DOYON, J.A.

Judgment on individual motion of recusation – see page 3. 9 h 51 Submissions by Mr Valery Fabrikant. 10 h 48 Suspension 11 h 01 Resumption. BY THE COURT: The Court indicates specifies points in respect of which respondent is asked to comment. 11 h 03 Suspension 11h 22 Resumption Taking of oath of the interpreter, Mr. Guy Demers. 11 h 23 Submissions by Mtre Carole Lebeuf 12 h 11 Rebuttal by Mr Valery Fabrikant. 12 h 21 Suspension 12 h 24 Resumption BY THE COURT: Judgment is reserved.

Marcelle Desmarais Clerk BY THE COURT JUDGMENT On the request by the appellant to produce a document from the Russian Academy of Science and a list of recent publications: [ 1 ] Mr Fabrikant sent a letter to the Court, dated December 27, 2013, in which he informed the Court of his intent to refer to two documents which were not filed with his factum. [ 2 ] In light of this letter, he is authorized to refer to these documents in the course of his presentation. These two documents will be filed as such.

On the oral motion by the appellant to produce additional documents: [ 3 ] With respect to the request by Mr Fabrikant that the Court consider supplementary documents not filed in the record of the Court, we are of the view that while these documents were before Mr. Justice Brunton, they need not form part of the record on appeal for that reason alone. The documents were improperly filed. [ 4 ] For these reasons, the motion is dismissed.

On the motions for recusation: [ 5 ] The appellant moves to have all three members of the panel recused. [ 6 ] He submits that the Court’s decision to dismiss his motion to have the binder of supplementary materials filed in the record on appeal is unfounded in law and reflects a bias against him. [ 7 ] The appellant acknowledges that the filing of the documents would be outside the applicable time limits. He nevertheless submits that he has a right to file them and that the refusal to allow him to do so is not only illegal but proof that the panel is biased against him.

He submits that the documents are essential to the appeal and that, because they were before Brunton, J., they should form part of the record in order to present a fair picture of the appeal. Moreover, the documents include an account of events at Concordia University which would be important for a jury ruling on his application for reduction of parole ineligibility to have in hand so that it would know what really transpired at the time. The documents are also relevant, in his view, to the evaluation of his character.

The fact that they were filed late is not an excuse, in particular because the respondent did not object to their production and introducing them into the record would cause no prejudice to any party. [ 8 ] He noted that he failed to file the documents in a timely manner because he forgot to do so. [ 9 ] The motion should be dismissed.

The appellant has shown no grounds for the existence of bias or for the reasonable apprehension of bias. [ 10 ] The Court’s decision to refuse the late submission of material reflects no bias but is simply made according to law and in keeping with the Court’s understanding of what is in the interests of justice.

Whether or not the parties consent to the filing of documents, the matter as to what forms part of the record is determined by the rules of practice of the Court of Appeal. [ 11 ] A reasonable person, properly apprised of the circumstances of the motion, would perceive no bias. [ 12 ] FOR THE AFOREMENTIONED REASONS , the Court: [ 13 ] DISMISSES the motion to recuse the members of the panel.

FRANÇOIS DOYON, J.A. NICHOLAS KASIRER, J.A. CLAUDE C. GAGNON, J.A. BY DOYON, J.A. [ 14 ] The motion to recuse Justice Doyon is dismissed. [ 15 ] In my view, a reasonable person apprised of the circumstances concerning the motion for recusation would not apprehend bias. FRANÇOIS DOYON, J.A.