2018 QCCA 2092, 2018 QCCA 2092

Chemama c. R. 2018 QCCA 2092 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No: 200-10-003561-185 (650-36-000290-185) DATE: November 23, 2018 BEFORE THE HONOURABLE DOMINIQUE BÉLANGER, J.A. ERICH CHEMAMA APPELLANT - Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix and ATTORNEY GENERAL OF CANADA RESPONDENT - Impleaded Party and COMMISSIONER OF CORRECTIONAL SERVICE CANADA THE WARDEN OF REGIONAL RECEPTION CENTER INSTITUTION THE WARDEN OF STONY MOUNTAIN INSTITUTION THE WARDEN OF MILLHAVEN INSTITUTION THE WARDEN OF THE PORT-CARTIER INSTITUTION THE WARDEN OF COLLINS BAY INSTITUTION THE WARDEN OF KENT INSTITUTION CLAUDIA GAGNON SASKATOON REGIONAL CENTER QUEBEC REGIONAL CENTER RESPONDENTS and HONOURABLE JUSTICE FRANÇOIS HUOT HONOURABLE JUSTICE ROBERT PIDGEON IMPLEADED PARTIES JUDGMENT [ 1 ] Pursuant to s. 672.24 and 684 Cr.C . , the appellant seeks the appointment of counsel, specifically Mr.

Daniel Brodsky, a member of the Law Society of Ontario, to represent him in “all files at the Court of Appeal for Quebec”. [1] The context [ 2 ] The appellant was declared a dangerous offender pursuant to section 753(1) of the Criminal Code , and was sentenced to detention in a penitentiary for an indeterminate period of time [2] . This judgment, and many others, were appealed before our Court.

[ 3 ] Useful to precise that on November 2, 2012, the appellant was declared to be a vexatious litigant by the Superior Court of Quebec. [ 4 ] The file [3] shows that on March 15, 2018, he was transferred to Port Cartier maximum security Institution. It seems that his integration in the general population at Port-Cartier failed, leading him to remain in segregation for his own protection.

On March 23, 2018, he filed, without authorization, an « application for a writ of habeas corpus ad subjiciendum with certiorari in aid ». [ 5 ] On April 2018, he himself tells the authorities that he wishes to return to the maximum security of Millhaven in Ontario. On May 23, 2018, he was notified that he would be transferred to Stony Mountain, Manitoba. This decision was confirmed on May 31, 2018, after he communicated his disagreement with the destination. On the same day, he was authorized to present a habeas corpus to the Superior Court.

In fact, the transfer occurred on July, 18, 2018. [ 6 ] It is important to take note that three hearings were held in first instance (June, 13; July, 27 and August 1 st ). At this date, Justice Huot rendered his oral judgment, and the conclusions read as follows : Factual circumstances in the present case brings me to conclude that it is more appropriate for the Superior Court of Quebec not to retain jurisdiction in this case and therefore the motion is dismissed.

The application for appointment of counsel [ 7 ] On July 10, 2018, the appellant presented a similar – in fact almost identical – motion to the Court [4] . The said motion was dismissed by a judgment dated July 13, 2018, [5] attached hereto. [6] [ 8 ] The motion that I am seized with does not add any relevant fact to the situation described in the appellant’s prior motion, nor does it add any significant piece of evidence in support of his arguments. [ 9 ] It is true that, since July 13, 2018, there were developments in the appellant’s situation.

First, on August 9, 2018, he appealed various judgments of the Superior Court in relation to his motion for habeas corpus , including the judgment dismissing said motion for lack of jurisdiction over the matter (file 200-10-003561-185). Secondly, his most recent application to the Comité de révision of the Commission des services juridiques was dismissed on September 25, 2018, for the following reasons: [8] CONSIDÉRANT que l’article 70

a) de la loi prévoit que l’aide juridique peut être refusée ou retirée, selon le cas, à toute personne qui, sans raison suffisante, refuse ou néglige de fournir les renseignements ou documents requis pour l’étude de sa demande; [9] CONSIDÉRANT que, lorsqu’il existe une raisons suffisante pour avoir refusé ou négligé de fournir les renseignements ou documents requis pour l’étude de sa demande, le dossier peut être complété en tout temps; [10] CONSIDÉRANT que le demandeur n’a pu fournir une raison suffisante pour excuser son défaut; POUR CES MOTIFS, le Comité rejette la demande de révision et confirme la décision de la directive générale. [ 10 ] None of these facts, however, sheds any new light on the appellant’s motion to appoint counsel. [ 11 ] It must also be noted that there is nothing in the file to indicate that Mr.

Brodsky, who has in the past repeatedly refused to represent the petitioner at the rates applicable in Quebec, would now be willing to accept these rates and act on the appellant’s behalf. In fact, Mr Brodsky was on the phone at the hearing, and he repeated that he would only accept the mandate on the rates of Ontario Legal Aid or if he had the possibility to negotiate his rates with the Legal Aid Commission. [ 12 ] Moreover, on September 5, 2013, my colleague Doyon, J.A. appointed Mr.

Brodsky, “or any other member of his firm”, as counsel to the petitioner, on the condition that he “agrees that his or her fees be set in accordance with the Legal Aid Tariff”, which he declined. [7] On June 14, 2014, the Court, seized with another motion for appointment of counsel, noted that “Mr. Brodsky has made it clear that he is not prepared to accept the

schedule of fees provided by the agreement between the Quebec Ministry of Justice and the Barreau du Québec .” [8] Finally, in its July 13, 2018 judgment, the Court took note of the fact that “Mr. Brodsky has refused to this date to represent the petitioner at the rates applicable in Quebec.” [9] In these circumstances, a letter from Mr. Brodsky clearly stating that he will represent the petitioner and accept the rates payable in Quebec would be required. There is no such acceptance from Mr.

Brodsky. [ 13 ] Finally, in its July 13, 2018 judgment, the Court also wrote that: [5] The Court should dismiss the motion unless the petitioner can demonstrate that it is now in the interests of justice for present counsel to be appointed. The jurisprudence on this point requires a determination whether the merits of the appeal are “arguable.” [reference omitted] This is less demanding than a test requiring “a reasonable chance of success” but there is nothing in the material before the Court on this motion that addresses this point.

Where the appointment of counsel under s. 684 has previously been refused, the petitioner cannot make this demonstration without new material. [reference omitted] The only new information before the Court is the refusal of legal aid on 25 May 2018, and this is insufficient as new evidence to justify a fresh motion under s. 684 . [ 14 ] The motion that I am seized with is also silent on this issue. In July, the Court could not conclude that some of the appeals started in the registry of Montreal were arguable and nothing in the material that I have been provided with allows me to decide differently.

As to the appeal of August 2018, in file 200-10-003561-185, after having examined the petitioner’s proceedings and the minutes of the Superior Court’s judgment, I am of the view that the appeal has no reasonable chance of success and may even be moot now that the petitioner has been transferred to another facility. [ 15 ] As indicated earlier, the September 25, 2018 decision of the Comité de révision of the Legal Aid Commission adds nothing of interest to the file. The decision is clear. The appellant should provide them with documents and information and he failed to do so.

[ 16 ] Considering all of the above, I have no choice but to dismiss the motion, for the very reasons the Court explained in its July 13, 2018 judgment, and most notably the following: - there is no evidence of the appellant’s mental unfitness; - the appellant’s counsel of choice, Mr.

Brodsky, has always refused to represent the petitioner at the rates applicable in Quebec; - The appellant failed to provide the Legal Aid Commission with documents and information; - there is no evidence that the interests of justice require that counsel be appointed to the appellant. [ 17 ] FOR THE ABOVEMENTIONED REASONS , the undersigned : [ 18 ] DISMISSES the petitioner’s motion for appointment of counsel. [ 19 ] DEFERS the « Notice of application to appeal Justice François Huot’s oral decision » to the panel who will hear the appeal. DOMINIQUE BÉLANGER, J.A.

Erich Chemama In person Mtre Virginie Harvey Minister of Justice For the Attorney General of Canada Mtre Daniel Brodsky Date of hearing: November 14, 2018