2023 QCCA 57, 2023 QCCA 57

Darveau c. R. 2023 QCCA 57 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007876-228 (500-01-175280-186) DATE: January 16, 2023 CORAM: THE HONOURABLE MARTIN VAUCLAIR, J.A. PATRICK HEALY, J.A. GUY COURNOYER, J.A. GABRIEL DARVEAU APPELLANT – Accused v.

HIS MAJESTY THE KING RESPONDENT – Prosecutor JUDGMENT [ 1 ] The appellant was granted leave to appeal from a conviction following a plea of guilty in the court below. [ 2 ] He had been charged by the Provincial Crown with several drug offences committed in Quebec and it was understood that his sentence was to be served concurrently with the sentence he would receive for a pending file prosecuted by the Federal Crown in Ontario. [ 3 ] The appellant had arranged for his file to be transferred from Ontario to Quebec, with the consent of the Attorney General of Ontario.

The appellant was to plead guilty at the same time to all charges, in both files, and the Provincial Crown would have presented a suggestion for a concurrent sentence. [ 4 ] However, due to administrative delays, the transfer of the Ontario file was not timely. Therefore, not without reluctance, the appellant accepted to, first, plead guilty for the Quebec offences and later to the Ontario offences.

When the plea for the Ontario offences was offered, the Federal Crown asked that his sentence be served consecutively. [ 5 ] The parties requested a facilitation conference and agreed to proceed without a formal hearing. They submit that the plea was involuntary in the Quebec file. Affidavits from appellant and his former counsel were filed. The respondent agrees that the appellant was told that a common suggestion would be presented for concurrent sentences. [ 6 ] In sum, due to unforeseen events, the suggestion could not and was not presented to the judge.

Because of the position taken by the Federal Crown, a consecutive sentence resulted. In fairness to the appellant, the prosecution supports the withdrawal of his plea and a new trial. [ 7 ] A different result from a joint submission will not, as a matter of principle, support a plea withdrawal. However, in view of the concession by the respondent and the very particular course of events, a new trial is justified. FOR THOSE REASONS, THE COURT: [ 8 ] GRANTS the appeal; [ 9 ] ORDERS a new trial in file 500-01-175280-186. MARTIN VAUCLAIR, J.A. PATRICK HEALY, J.A. GUY COURNOYER, J.A.

Mtre Benjamin Wilner SHADLEY BIEN-AIMÉ For the Appellant Mtre Jean-Philippe MacKay DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the Respondent