2016 QCCA 81, 2016 QCCA 81

R. c. Mirarchi 2016 QCCA 81 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006048-159 (540-01-063428-141) MINUTES OF THE HEARING DATE: January 25, 2016 CORAM: THE HONOURABLE ALLAN R. HILTON , J.A. FRANÇOIS DOYON , J.A. MARTIN VAUCLAIR , J.A. APPELLANT ATTORNEYS HER MAJESTY THE QUEEN Mtre ROBERT ROULEAU (present) Mtre MARIE-CHRISTINE GODBOUT (present) (Criminal and penal prosecutor attorney) Mtre PAUL -ALEXIS GAUTHIER (Public Prosecution Service of Canada) RESPONDENTS ATTORNEYS VITTORIO MIRARCHI Mtre FRANK ADDARIO (present) Mtre WILLIAM THOMPSON M tre MICHAEL W. LACY Mtre MAXIME HEBRARD (present) ( Greenspan Partners LLP )

CALOGERO MILIOTO Mtre DOMINIQUE SHOOFEY STEVEN FRACAS Mtre GIUSEPPE BATTISTA Me MATHIEU CORBO (Shadley Battista Costom ) FELICE RACANIELLO Mtre JEFFREY K.

BORO (Boro, Polnicky, Lighter) Mtre BRUCE ENGEL JACK SIMPSON Mtre RONNIE MACDONALD ( Raby-Dubé-Leborge –Rougeau) PIETRO MAGISTRALE Mtre ROBERT POLNICKY (Boro, Polnicky, Lighter) STEVEN D'ADDARIO Mtre ANNIE ÉMOND (Boro, Polnicky, Lighter) IMPLEADED PARTY ATTORNEY THE ATTORNEY GENERAL FOR QUEBEC Mtre SIMON TREMBLAY (present) (Bernard, Roy (Justice-Québec) Motion to obtain an ex-parte hearing and for apointment of an amicus curiae attorney. (Sec. 34 of the Rules of procedure of the Quebec Court of Appeal) Notice of application pursuant to ss. 7 & 24(1) of the Charter of Rights and Freedoms .

Clerk: Marcelle Desmarais Courtroom: Antonio-Lamer

HEARING 9:30 Commencement of the hearing. Identification of counsel. Mtre François Dadour is present in the courtroom. 9:31 Submissions by Mtre Robert Rouleau. 9:38 Submissions by Mtre Frank Addario. 9:43 Reply by Mtre Robert Rouleau. 9:48 Submissions by Mtre Simon Tremblay. 9:56 Submissions by Mtre François Dadour. 10:01 Reply by Mtre Frank Addario. 10:07 Answer by Mtre Rouleau to judge Vauclair. 10:08 Answer by Mtre Addario to judge Hilton. 10:09 Reply by Mtre Tremblay 10:13 Reply by Mtre Addario. 10:15 Remarks by Mtre Rouleau. 10:17 Answer by Mtre Tremblay to judge Doyon. 10:18 Suspension. 10 h 33 Resumption.

Unanimous judgment rendered by the Honourable Allan R. Hilton, J.A. – see page 4. Marcelle Desmarais Clerk BY THE COURT JUDGMENT [ 1 ] For reasons to be filed in the record, THE COURT: [ 2 ] GRANTS the petitioner's motion; [ 3 ] ORDERS that a partial ex parte hearing be held in this Court on terms to be determined by case management before Mr. Justice Doyon; [ 4 ] ALLOWS the petitioner to produce a "see-through redacted" factum and schedules for the Court and amicus curiae, and a redacted factum and schedules for the respondents; [ 5 ] APPOINTS Mr.

Anil Kapoor as amicus curiae to file his factum and make submissions before this Court during the ex parte hearing based on the timetable already established for the hearing of this appeal; [ 6 ] ESTABLISHES the hourly rate of $300 to be paid to the amicus curiae for exceptional reasons ( Ontario v.

Criminal Lawyers Association , 2013 SCC 43 , para. [67] ) relating to the complexity of the issues to be argued, his having already acted as amicus curiae in the Superior Court in this matter, the necessity of his factum being filed within the time limits already established, and the apparent impracticality of so naming any other counsel. [ 7 ] ORDERS Crown counsel to forthwith communicate the present Order and a copy of the file to the amicus curiae. ALLAN R. HILTON, J.A.

FRANÇOIS DOYON, J.A. MARTIN VAUCLAIR, J.A. R. c. Mirarchi 2016 QCCA 81 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006048-159 (540-01-063428-141) DATE: FEBRUARY 1, 2016 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. FRANÇOIS DOYON, J.A. MARTIN VAUCLAIR, J.A. HER MAJESTY THE QUEEN APPELLANT - Prosecutrix v.

VITTORIO MIRARCHI CALOGERO MILIOTO STEVEN FRACAS FELICE RACANIELLO JACK SIMPSON PIETRO MAGISTRALE STEVEN D'ADDARIO RESPONDENTS - Accused and THE ATTORNEY GENERAL FOR QUEBEC IMPLEADED PARTY – Impleaded party REASONS FOR JUDGMENT RENDERED AT THE HEARING [1] At the conclusion of a hearing on January 25, 2016, the Court issued the following order: For reasons to be filed in the record, THE COURT: GRANTS the petitioner's motion; ORDERS that a partial ex parte hearing be held in this Court on terms to be determined by case management before Mr.

Justice Doyon; ALLOWS the petitioner to produce a "see-through redacted" factum and schedules for the Court and amicus curiae, and a redacted factum and schedules for the respondents; APPOINTS Mr. Anil Kapoor as amicus curiae to file his factum and make submissions before this Court during the ex parte hearing based on the timetable already established for the hearing of this appeal; ESTABLISHES the hourly rate of $300 to be paid to the amicus curiae for exceptional reasons ( Ontario v.

Criminal Lawyers Association , 2013 SCC 43 , para. [67] ) relating to the complexity of the issues to be argued, his having already acted as amicus curiae in the Superior Court in this matter, the necessity of his factum being filed within the time limits already established, and the apparent impracticality of so naming any other counsel.

ORDERS Crown counsel to forthwith communicate the present Order and a copy of the file to the amicus curiae. [2] These are those reasons. .-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.- [3] The respondents have been charged with conspiracy to commit murder and first degree murder that occurred in November of 2011. Some of them have been detained since December of 2011. [4] In the Superior Court, the Honourable Mr.

Justice Michael Stober rendered a judgment pursuant to which the appellant was required to disclose certain information relating to the police investigation that led to the charges against them, despite the Crown's objection based on the public interest privilege in relation to investigative techniques that is protected by the common law and by s. 37 of the Canada Evidence Act . [1] [5] In the context of an appeal launched pursuant to s. 37.1 of the Act , the appellant has applied for an order that part of the hearing of the appeal take place ex parte and in camera, and for the appointment of an amicus curiae. [6] The motion seeks to replicate the procedure the parties followed in the Superior Court before Stober, J. pursuant to which part of the hearings adjudicating the respondents' requests for disclosure took place in camera and ex parte.

These disclosure requests dealt with the investigation techniques the police used that led to the charges against the respondents, and in particular the methods that were used to intercept and decode PIN to PIN Blackberry communications, as well as the means used to identify the cell phone devices in question. [7] In the Superior Court, the in camera and ex parte hearings allowed the appellant to lead its evidence and to make its submissions unhindered by any restrictions as to confidentiality. Mr.

Anil Kapoor, a member of the Law Society of Upper Canada, acted as amicus curiae during both the in camera and public hearings to provide necessary assistance to Stober, J. The proceedings spanned 10 days. Mr. Kapoor has thus acquired a profound understanding of the questions in dispute. All participants in the process recognized the outstanding quality of his submissions, including Stober, J. in the course of his judgment. [ 8 ] In this Court, the appellant seeks to make its submissions objecting to the disclosure of the investigative techniques in the same manner, that is to say partly ex parte and in camera.

All of the parties recognize the usefulness of this exceptional form of proceeding. Moreover, everyone agrees that the appointment of an amicus curiae is necessary in the higher interests of justice that this appeal commands. [ 9 ] The Court will therefore authorize a part of the hearing of the appeal to take place in camera and ex parte, and that two versions of the factums of the appellant and the amicus curiae be filed, one of which is redacted and the other not. There remains but one issue. [ 10 ] The Attorney General of Quebec refuses to pay the amicus at the hourly rate of $300.00 he claims.

She contends that the government's administrative policies contemplate an hourly rate of $100.00, which Mr. Kapoor accepted in the Superior Court. He argues convincingly, however, that the situation differs to such an extent in appeal that he can no longer accept to be paid at such a rate. It should be noted here that the Attorney General does not purport to impose a limit on the amount of time that will be spent on the preparation of the appeal. As a result, a new amicus, working at the rate of $100 an hour, could well engender an equal or even higher total than those of Mr. Kapoor working at the higher rate.

The Attorney General acknowledges this reality, as do all the parties, since a new amicus will necessarily have to invest considerably more time than Mr. Kapoor in order to take cognizance of the voluminous and complex record. The nature of the Attorney General's objection is therefore not strictly speaking budgetary, but rather based on insisting on the respect of administrative management standards. [ 11 ] That being said, serious efforts were undertaken to identify a new amicus curiae. Mtre François Dadour was so identified and none of the parties object to his appointment.

The time limits that govern the conduct of the appeal, however, pose a problem. If Mtre Dadour were to accept the Attorney General's proposed hourly rate, it is far from certain he would be able to perform his mandate within the timeframe the parties have agreed upon and which were ratified at a case-management conference. He candidly acknowledged before us that he would be unable to respect such time limits, and could not say how much time he would need.

His candid hesitation is perfectly understandable in the circumstances, since he cannot make a realistic evaluation without having taken cognizance of the file. [ 12 ] The issue of delay adds to the already exceptional character of the file. Without drawing any conclusions with respect to the delays that have already been incurred without the benefit of an appropriate analysis, at first glance they are a legitimate concern in this matter.

The jury trial is scheduled to begin this coming September, and it is essential that the issue presently before the Court be decided to avoid other roadblocks and further delays, especially in light of additional motions that remain to be argued in the Superior Court. [ 13 ] The Attorney General invokes the majority judgment of the Supreme Court of Canada in Ontario v. Criminal Lawyers Association of Ontario [2] and the principle pursuant to which the remuneration of amicus counsel is a power that belongs to her and not the courts.

She contends forcefully that as the respondents have not demonstrated a violation of their constitutional rights, they are not entitled to a remedy pursuant to s. 24(1) of the Canadian Charter . She nevertheless correctly acknowledges that it may on occasion suffice if there is the threat of such a breach. [3] [ 14 ] While it is accurate to say that in Ontario v.

Criminal Lawyers Association of Ontario the Supreme Court did not confer any power on courts to establish the remuneration to be paid to amicus, it did recognize that the situation is different when a constitutional right is in issue and a Charter right is at stake:

67 However, this is not to say that an order fixing rates of remuneration under the Charter is precluded, as s. 24(1) "should be allowed to evolve to meet the challenges and circumstances of [the case]" ( Doucet-Boudreau v. Nova Scotia (Minister of Education) , 2003 SCC 62 , [2003] 3 S.C.R. 3 , at para. 59 ).

It remains open to a court of competent jurisdiction to award such a remedy where a Charter right is at stake and it is appropriate and just to do so . [Emphasis added.] 67 Une ordonnance peut toutefois être rendue à cet égard sur le fondement de la Charte , car le par. 24(1) "doit pouvoir évoluer de manière à relever les défis et à tenir compte des circonstances de [l'espèce]" ( Doucet-Boudreau c. Nouvelle-Écosse (Ministre de l'Éducation) , 2003 CSC 62 , [2003] 3 R.C.S. 3 , par. 59 ).

Il demeure loisible à la cour compétente d'accorder une telle réparation lorsqu'un droit garanti par la Charte est en jeu et qu'il est à la fois indiqué et juste de le faire. [Soulignage ajouté.] [ 15 ] Here, it is common ground that an amicus curiae is necessary in the interests of justice. This interlocutory appeal, which is exceptional in criminal law, arises in the context of a trial in which the majority of the respondents have been detained for four years. The trial before the jury is fixed to proceed in September of 2016.

Although without the advantage of a meticulous analysis of the delays that have been incurred, there are nevertheless serious concerns for which measures must be taken "to further the public's interest in avoiding the total collapse of the prosecution that could have been caused by unreasonable delays." [4] [ 16 ] It is clear that the number of counsel available for a mandate of this nature is not bountiful.

Mtre Dadour, with a degree of candour that does him honour, advised the Court of the extent of his availability, which is already taken up to a large degree and which is not exclusive, and of his legitimate concerns about properly fulfilling the proposed mandate within the demanding time limits. On the other hand, Mr. Kapoor is an experienced counsel with the advantage of detailed knowledge of the file. [ 17 ] The Court considers that the professional services already rendered by Mr.

Kapoor, the quality of which is acknowledged by all, as well as his familiarity with the questions in dispute, will enable him to be of assistance to the Court within the established time limits. [ 18 ] As far as his remuneration is concerned, the Court considers the present circumstances to be exceptional. The respondents' constitutional rights are seriously threatened, and the Attorney General's objection to the rate of Mr. Kapoor's hourly rate of remuneration is more of an administrative preoccupation that would be appropriate in the context of a call for tenders or similar circumstances.

They are inappropriate, however, when the State has the responsibility to bring an accused to trial and at the same time is responsible for the interruption of that process by initiating the exceptional recourse in criminal matters of a complex interlocutory appeal. [5] ALLAN R. HILTON, J.A. FRANÇOIS DOYON, J.A. MARTIN VAUCLAIR, J.A. Mtre Robert Rouleau Mtre Marie-Christine Godbout Criminal and Penal Prosecution attorneys Mtre Paul-Alexis Gauthier Public Prosecution Service of Canada attorneys For the petitioner Mtre Frank Addario Mtre William Thompson Addario Law Group Mtre Maxime Hebrard Mtre Michael W.

Lacy Greenspan Partners LLP For Vittorio Mirarchi Mtre Dominique Shoofey For Calogero Milioto Mtre Giuseppe Battista

Mtre Mathieu Corbo Shadley Battista Costom For Steven Fracas Mtre Jeffrey K. Boro Boro, Polnicky, Lighter Mtre Bruce Engel For Felice Racaniello Mtre Ronnie MacDonald Raby Dubé Leborge Rougeau For Jack Simpson Mtre Robert Polnicky Boro, Polnicky, Lighter For Pietro Magistrale Mtre Annie Émond Boro, Polnicky, Lighter For Stephen D'Addario Mtre Simon Tremblay Bernard, Roy (Justice-Québec) For the Attorney General for Quebec Date of hearing: January 25, 2016