2018 QCCA 839, 2018 QCCA 839

Chemama c. R. 2018 QCCA 839 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005556-145 , 500-10-006208-167 500-10-005357-130, 500-10-005444-136 (500-01-049364-109, 500-01-048577-107) DATE: May 2, 2018 CORAM: THE HONOURABLE MARIE-FRANCE BICH, J.A. MARK SCHRAGER, J.A. SIMON RUEL, J.A. ERICH CHEMAMA APPLICANT/APPELLANT – Accused v.

COMMISSIONER OF CORRECTIONS (CORRECTIONAL SERVICE OF CANADA) RESPONDENT and HER MAJESTY THE QUEEN IMPLEADED PARTY – Prosecutrix JUDGMENT [ 1 ] Seeing the Application to Cross-Examine Affiants on their Affidavits dated April 18, 2018 filed by the amicus curiae (" amicus "); [ 2 ] Considering the representations of the attorneys of the parties and Applicant Erich Chemama; [ 3 ] Seeing the order of this Court dated September 29, 2016 (“September 2016 order”) regarding Applicant’s access to materials required for the preparation of his appeal factums; [ 4 ] Seeing the application dated October 5, 2017 (“October 2017 motion”) brought by the amicus alleging that the September 2016 order was not being respected by Correctional Service of Canada (“Correctional Service”); [ 5 ] Seeing the seven affidavits filed by Correctional Service just prior to the hearing to refute the allegations of the October 2017 motion; [ 6 ] Seeing the supplementary affidavits of Mélanie Marcil and Mike Jensen filed by Correctional Service subsequent to the hearing of the October 2017 motion; [ 7 ] Seeing that Applicant indicated at the hearing of the October 2017 motion that he no longer wished to cross-examine the affiants, contrary to a previous request; [ 8 ] Seeing that the supplementary affidavit of Mélanie Marcil regards primarily the whereabouts of Applicant's 63 compact discs containing material necessary for his appeals; [ 9 ] Considering that the Court has adjudicated the October 2017 motion application for which purpose all of the aforementioned affidavits were filed; [ 10 ] Seeing that Applicant and amicus seek to cross-examine affiants to demonstrate noncompliance by Correctional Service with the September 2016 order; [ 11 ] Seeing that the director of Correctional Service, Mr.

Don Head, was ordered (in virtue of the October 2017 order) personally to comply with the September 2016 order; [ 12 ] Seeing that Correctional Service has not alleged any inability to comply with the September 2016 order nor otherwise sought to modify the order; [ 13 ] Seeing that the Director of Criminal and Penal Prosecutions (“DCPP”) has replaced the 63 compact discs and delivered same to

Applicant; [ 14 ] Seeing that Annexes I, II and III of Applicant's appeal factums should be completed by the DCPP on or before November 1, 2018 in compliance with the October 2017 order, as amended by the case management judge; [ 15 ] Seeing that in the 90 days following such date, the amicus is required to provide the Court with an analysis of the grounds of appeal raised by Applicant as contemplated by the October 2017 order; [ 16 ] Considering that it is only upon the filing of such report by the amicus that Applicant would need to draft his appeal factums and that he will require at such time the proper tools to do so as contemplated in the September 2016 order; [ 17 ] Consequently, the cross-examination of affiants on the 2017 affidavits with a view to demonstrating that Correctional Service is not currently complying with the September 2016 order is unnecessary.

FOR THE FOREGOING REASONS, THE COURT: [ 18 ] DISMISSES the application to cross-examine affiants on their affidavits; MARIE-FRANCE BICH, J.A. MARK SCHRAGER, J.A. SIMON RUEL, J.A. Erich Chemama In Person Mtre Stéphane Arcelin DEPARTEMENT OF JUSTICE CANADA For Respondent Mtre Martin Chalifour Mtre Marianna Ferraro CRIMINAL AND PENAL PROSECUTING ATTORNEY For Impleaded party Mtre Paul Skolnik PAUL SKOLNIK, AVOCAT The amicus curiae Date of hearing: April 30, 2018