2018 QCCA 1180, 2018 QCCA 1180

R. c. Diabo 2018 QCCA 1180 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006724-189 (505-01-133641-155) MINUTES OF THE HEARING DATE: July 13, 2018 CORAM: THE HONOURABLE MARIE-JOSÉE HOGUE , J.A. PATRICK HEALY , J.A. CLAUDINE ROY , J.A. APPELLANT COUNSEL HER MAJESTY THE QUEEN Mtre MARIE-AUDRAI JOSET Mtre FRÉDÉRIQUE LE COLLETTER (Directeur des poursuites criminelles et pénales) (absent) RESPONDENT COUNSEL TEHAWANNAKE DIABO Mtre Cynthia Lacombe Mtre PHILIPPE lEGAULT (Schneider & Associés) (absent)

On appeal from a judgment rendered on March 28, 2018 by the Honourable Justice Dominique Dudemaine of the Quebec Court, District of Longueuil. DESCRIPTION : Application to dismiss an appeal. (Para. 683(3) Cr.C. , Sect. 365 C.C.P. ) Clerk: Ermioni Tomaras Courtroom: Pierre-Basile-Mignault HEARING 9:30 Continuation of the hearing of July 9 , 2018. The parties have been excused from attending Court today. 9:30 BY THE COURT: judgment – See page 3. Conclusion of the hearing. Ermioni Tomaras Clerk

BY THE COURT JUDGMENT [ 1 ] The petitioner has presented a motion to dismiss an appeal by the prosecution from acquittals pronounced by the Court of Quebec on indictable counts. He asserts that the appeal raises no question of law and that it has no reasonable chance of success. More specifically, the petitioner claims that the appeal disguises questions of fact or mixed questions as questions of law and should be summarily dismissed as unfounded as such appeals lie only on a question of law alone. [ 2 ] The petitioner bases his motion on section 683(3) of the Criminal Code and

article 365 C.C.P. The relevant parts of these provisions are as follows: 683

(1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice, (

a) order the production of any writing, exhibit or other thing connected with the proceedings; (

b) order any witness who would have been a compellable witness at the trial, whether or not he was called at the trial, (

i) to attend and be examined before the court of appeal, or (ii) to be examined in the manner provided by rules of court before a judge of the court of appeal, or before any officer of the court of appeal or justice of the peace or other person appointed by the court of appeal for the purpose; (

c) admit, as evidence, an examination that is taken under subparagraph (b)(ii); (

d) receive the evidence, if tendered, of any witness, including the appellant, who is a competent but not compellable witness; (

e) order that any question arising on the appeal that (

i) involves prolonged examination of writings or accounts, or scientific or local investigation, and (ii) cannot in the opinion of the court of appeal conveniently be inquired into before the court of appeal, be referred for inquiry and report, in the manner provided by rules of court, to a special commissioner appointed by the court of appeal; (

f) act on the report of a commissioner who is appointed under paragraph (

e) in so far as the court of appeal thinks fit to do so; and (

g) amend the indictment, unless it is of the opinion that the accused has been misled or prejudiced in his defence or appeal. Parties entitled to adduce evidence and be heard

(2) In proceedings under this section, the parties or their counsel are entitled to examine or cross-examine witnesses and, in an inquiry under paragraph (1)(e), are entitled to be present during the inquiry, to adduce evidence and to be heard. […] Other powers

(3) A court of appeal may exercise, in relation to proceedings in the court, any powers not mentioned in subsection (1) that may beexercised by the court on appeals in civil matters, and may issue any process that is necessary to enforce the orders or sentences of thecourt, but no costs shall be allowed to the appellant or respondent on the hearing and determination of an appeal or on any proceedingspreliminary or incidental thereto. 365.

The Court of Appeal, even on its own initiative, may dismiss an appeal if the right to appeal is non-existent or has been forfeited orthe appeal is abusive or improperly initiated.

It may also, on an application by the respondent, dismiss an appeal if the surety is notfurnished within the time limit determined, the judgment under appeal has been acquiesced in or a party in whose favour the judgmentwas rendered has renounced the rights arising from it, or if the appeal has no reasonable chance of success. [3] The petitioner affirms, in effect, that in the absence of a specific provision that would empower the Court summarily to dismissan indictable appeal by motion these two provisions together would allow the Court to do so. [4] That the jurisdiction of an appellate court is statutory is a commonplace.

With the narrow exception contemplated by

section 685of the Criminal Code, which concerns the dismissal of frivolous or vexatious appeals, neither the Code nor any other statutory provisionwould allow the Court to dismiss an appeal from conviction or acquittal in indictable matters, by the prosecution or the defence, on theterms provided in

article 365 C.C.P. On this motion therefore the question is whether the Court has the jurisdiction to do so on the basisasserted by the petitioner. [5] Section 683(3) is suppletive, which means that it allows the Court to exercise supplementary or complementary powers tocompensate for gaps in substantive measures. The powers granted by this provision may also be variously described as residual, ancillaryor incidental.

Section 683(3) in no way empowers the Court to modify the substantive terms of its jurisdiction or to grant itself ajurisdiction that it does not otherwise have. [6] The plain terms of section 683(3) indicate that the Court is empowered to supplement or complement the powers granted bysection 683(1), which are all concerned with the perfection of an appeal to be heard at a later date on the merits. Nothing in section683(1) allows the court to dispose of an appeal on the merits and it necessarily follows that the suppletive provisions of section 683(3)cannot do so. As noted, with the narrow exception of

section 685, there is no jurisdiction for the court of appeal to grant

summarydismissal of an appeal by the prosecution or the defence in an indictable matter. [7]

Section 685 does not allow

summary dismissal of a criminal appeal by motion on terms that are comparable to those provided inarticle 365 C.C.P.

Section 685 allows for

summary dismissal of a criminal appeal that purports to be on a question of law alone if twoconditions are met: that “the appeal does not show a substantial ground of appeal” and that “the court considers that the appeal isfrivolous or vexatious and can be determined without being adjourned for a full hearing.” By itself, the mischaracterization of a groundof appeal as a question of law cannot be described as frivolous or vexatious; nor is it sufficient for

summary dismissal of a criminalappeal on a question of law that the appeal has no reasonable chance of success. [8] This point was addressed directly in Duhamel.[1] The Court noted that a power to order the

summary dismissal of a criminalappeal is a substantive power that contemplates a final disposition of the appeal. It is exceptional and must be understood together withthe ordinary mechanism for screening or filtering appeals, which is the requirement for leave. The Court thus concludes that with regardto criminal appeals on a question of law there is no power to incorporate other screening measures from the Code of Civil Procedure inthe guise of suppletive provisions.

The Court’s conclusion in this respect is unambiguous: [19] Finally, s. 683 Cr.C., and particularly subsection 3 thereof, does not add to the means of dismissal set out in s. 685 Cr.C. […] Given the general context of the provision, it should be understood that this subsection is limited to matters of evidence and procedure:see R. v.

Geauvreau, (SCC), [1982] 1 S.C.R. 485, especially at pages 490-491. [20] To summarize, to the extent that, in the case of appeals from convictions, Parliament has expressly provided a specific means for thesummary dismissal of appeals, this is the one that should be used since all others have been implicitly excluded. [9] These conclusions have been consistently followed by the Court, as has the characterization of the motion for

summarydismissal under

section 685 as an exceptional measure that is used sparingly.[2] [10] It might occasionally seem regrettable that the Court has no power to dismiss summarily a ground of appeal that is improperlycharacterized as a question of law but this is undoubtedly the policy of the law. Whether an issue on appeal is properly characterized as aquestion of law, a question of fact or a mixed question is a substantive point that can only be resolved in a final disposition of the meritsof the appeal.

Indeed, that characterization might well determine the outcome of an appeal but it does not permit indirectly a preliminarydisposition of an appeal from conviction or acquittal by way of motion. FOR THESE REASONS, THE COURT: [11] DISMISSES the motion. MARIE-JOSÉE HOGUE, J.A.

PATRICK HEALY, J.A. CLAUDINE ROY, J.A.