2014 QCCA 1713, 2014 QCCA 1713

Moniz c. R. 2014 QCCA 1713 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005713-142 ( 500-01-038898-109 & 500-01-014954-074) MINUTES OF THE HEARING DATE: September 12, 2014 THE HONOURABLE MADAM JUSTICE MARIE ST-PIERRE , J.A. PETITIONER ROBERT MANUEL MONIZ IN PERSON (absent) RESPONDENT ATTORNEY HER MAJESTY THE QUEEN Mtre Myriam CORBEIL (absent) ( Directeur des poursuites criminelles et pénales ) DESCRIPTION: Motion to extend the time for appeal ( Art. 678 (2) of the Criminal Code ) Clerk: Nadia Samy Courtroom: RC-18 HEARING

9 h 32 Continuation of the hearing on September 10, 2014. The parties were excused from appearing in today’s hearing. Judgment – see page 3. Clerk BY THE JUDGE JUDGMENT [ 1 ] The applicant presents a motion for extension of time in which he might lodge his appeal under section 678 (2) of the Criminal Code and the Rules of the Court of Appeal of Quebec in Criminal Matters. [ 2 ] The criteria for granting a motion for an extension of time are well-known, as set forth in particular by Justice Fish, then of our Court, in R. v.

Lamontagne . [1] To succeed on an application for extension, the applicant must establish: 1. an intention to appeal while the right existed; 2. reasonable diligence in seeking to exercise the right of appeal; and 3. arguable grounds for appeal. [ 3 ] Counsel for the respondent concedes that the applicant satisfies the first and the second criteria (he had the intention to appeal while the right existed and he acted with reasonable diligence in seeking to exercise this right).

However, she strongly argues that the applicant has no arguable grounds for appeal. [ 4 ] I agree: the applicant does not set forth grounds of appeal that, on their face, meet the test of seriousness in R. v. Lamontagne . [ 5 ] In paragraph 12 of his motion, the applicant describes his grounds of appeal as follows : The Applicant-Accused wishes to appeal the conviction imposed by the trial judge for the following reasons: 12.1 The trial judge erred in law by concluding that the Application of the wrong manner of

interpretation of the necessary criteria for the motion to withdraw guilty pleas. 12.2 The trial judge erred in fact by concluding that the Applicant-Accused ls a liar. 12.3 The trial judge erred in fact by concluding that the testimony of Mtre. Catherine Ranalli was credible and reliable when the Applicant-Accused tried to get the permission from the judge to speak to his defence attorney Mtre. Karine-Paloma Herrera-Nadon, when Mtre.

Catherine Ranalli was lying in court on her testimony and was refused, the Applicant-Accused had documented proof to submit the documents into proof on her contradictory testimony with a letter sent by Mtre.

Catherine Ranalli to the Barreau Du Québec dated May 16, 2014. (Schedule 2) ; 12.4 The trial judge erred in fact by concluding and not accepting the reality to the motion to withdraw the guilty pleas and that the Applicant-Accused was under duress and under the influence of drugs for the guilty pleas. 12.5 The trial judge erred in fact by concluding that the reality of the actions of the Applicant-Accused, who was not free and voluntary and that he was instructed by Mtre.

Catherine Ranalli to plead guilty or face 6 more years on remand, 2 more years for the tentative termination for the trial in the charges in paragraph 1.1 to 1.53 and over 4 more years in the charges in paragraph 2.1 to 2.20 on remand and that by pleading guilty time was served and be rewarded with freedom. 12.6 The trial judge erred in fact by concluding that Applicant-Accused was given the option to lie and be free or tell the truth and remain in detention for 6 or more years to prove his innocence and finish the trials of the two cases, files# 500-01-038898-109 and 500- 01-014954-074. 12.7 The trial judge erred in fact by concluding that the accusations are true when documented proof proves otherwise and Applicant- Accused pointed out the facts but was told to keep quiet by his counsel or remain longer in detention if it was to tell the truth.

(Underlines are mine, but emphasis comes from the original) [ 6 ] Rather than summarizing its content, the following is a complete transcript of the judgment rendered by Honourable Patrick Healy on June 20, 2014 : [1] For the reasons given in Khanfoussi the motion presented by Mr. Moniz is dismissed. The parties agree that the reasons in Khanfoussi accurately state the applicable legal principles. The reasons given in that case apply with greater force in this case. [2] After twenty-six (26) months of trial (on intermittent days), including fifteen (15) days of his own testimony. Mr.

Moniz chose to plead guilty to seventy (70) counts. He pleaded guilty to Counts 1 - 28 and Counts 32 - 53 in File N o 500-01-038898-109 and Counts 1- 20 in File N° 500-01-014954-074. As a result the hearing was long. Mr. Moniz was asked at the beginning, in the middle and at the end whether it was his choice freely and voluntarily to plead guilty. Each count was recited in French and translated viva voce into English. To each count Mr. Moniz responded that he pleaded guilty. He stated that he understood that by pleading guilty he admitted the truth of the charges against him.

Although he spoke in a subdued tone, he clearly performed the mental act of choosing to plead guilty and the physical act of vocalising that choice. [3] Mr. Moniz now advances eight (8) grounds to support this motion that he did not plead guilty with an informed understanding of the ramifications of this choice. These eight (8) grounds are essentially two (2). First, he says that he was forced to plead guilty by his lawyer, Me Ranalli, and indeed that she subjected him to duress between October 2011 and the moment of his guilty pleas on 24 April 2014.

He says that she "instructed" him to lie in the formal admissions submitted at trial and in his guilty pleas. In his testimony on this motion he affirmed categorically and repeatedly that he did lie in those admissions and those pleas. Second, he says that he was suffering the effects of having consumed illicit substances by involuntarily inhaling second-hand smoke from such substances in the detention centre and in the bus between the centre and the courthouse. [4] With one possible exception, there is no credible or reliable evidence to support the claims advanced by Mr. Moniz in his motion or in his testimony.

The possible exception is his testimony, made under solemn affirmation, that he is a liar. As for his assertion that on 24 April 2014, he was intoxicated by second-hand smoke from narcotics, there is no evidence except - as he put it himself- his word. By his own admission, his word is worth little. In the absence of any supporting evidence, I cannot give any weight to this assertion. The allegation that M e Ranalli subjected Mr. Moniz to force, threats or duress is nothing but a farrago of calumnious fabrication. Even if M e Ranalli had not testified on this motion, Mr.

Moniz's allegation collapses under the weight of its mendaciousness. He asserts now that he is a liar that should be believed. But as a confessed liar the quotient of his credibility is nil. His fulsome claims that M e Ranalli subjected him to duress for the duration of this case, and instructed him to lie, are contradicted by the conduct of this case from beginning to end. Finally, M e Ranalli's clear, fluid and precise testimony contradicts Mr. Moniz's testimony in every particular and there is not the slightest reason to doubt her credibility or the reliability of her evidence. [5] On instructions from Mr.

Moniz M e Ranalli negotiated a possible settlement with the prosecution and eventually proposed terms to him. Having clone so, M e Ranalli advised Mr. Moniz that it was his choice- and his choice alone- to continue the trial or to plead guilty. He was fully apprised of the ramifications of his options. He chose to plead guilty. And he did, freely and voluntarily. He must accept responsibility for the choice he made. This choice might operate unfortunately for Mr. Moniz but not unfairly. [6] I could not grant this motion without concluding that M e Ranalli is guilty of the most egregious professional misconduct.

There is no evidence for such a conclusion. There is absolutely no reason before me to doubt that throughout this case M e Ranalli conducted herself in accordance with the highest standards of the bar. For her part, given difficult circumstances, M e Herrera-Nadon represented Mr. Moniz as best she could. [7] Mr. Moniz has not only failed to prove the basis for his motion. It has no "air of reality." There is not the faintest whiff, soupçon or trace of reality to his claim. For these reasons and for the reasons expressed in Khanfoussi , Mr.

Moniz's motion is dismissed . [ 7 ] Justice Healy applied the right criteria and he assessed, accordingly, the evidence. The proposed appeal has no reasonable chances of success. The following remarks from judges of our Court apply. Extracts of Hebert v.

R ( 2011 QCCA 2181 ) [6] La décision d’un juge d’instance de permettre ou non à l’accusé de retirer son plaidoyer de culpabilité est de nature discrétionnaire : The decision whether or not permission to withdraw a plea of guilty should be given rests in the discretion of the Judge to whom the application for such permission is made and that this discretion, if exercised judicially, will not be lightly interfered with. [7] La Cour d’appel ne peut substituer sa propre appréciation des faits à celle du juge qui a entendu la requête, notamment en ce qui concerne la crédibilité des témoins.

Ainsi, à moins d’une erreur de droit, la Cour d’appel doit faire preuve de déférence envers la décision du juge d’instance de refuser le retrait du plaidoyer de culpabilité : La conclusion concernant le caractère libre, éclairé et informé du plaidoyer de culpabilité est une question de fait à l'égard de laquelle la Cour doit faire preuve de la plus grande déférence. [ 8 ] Or, le juge a entendu les parties pendant deux jours sur la requête en retrait de plaidoyer de culpabilité. Tant l’appelant que l’avocat qui le représentait lorsqu’il a plaidé coupable, ont témoigné et le juge a apprécié leur crédibilité.

Il explique minutieusement pourquoi il ne retient pas la version de l’appelant alors qu’il accorde foi à celle de l’avocat qui l’a représenté pour la requête en retrait de plaidoyer de culpabilité.

(References omitted) Extracts of Bériault v.

R – (2013 QCCA 1052) [1] Dans un jugement étoffé, après avoir correctement résumé les principes de droit applicables au retrait de plaidoyer de culpabilité,la juge de la Cour du Québec, chambre criminelle et pénale, passe à l’analyse de la preuve soumise. [2] Elle conclut que le requérant n’a pas, selon la prépondérance des probabilités, démontré que son plaidoyer n’était pas libre,volontaire et informé. [3] Le requérant ne me fait pas voir prima facie une quelconque erreur manifeste et dominante dans l’appréciation de la preuve de lapremière juge au sens des enseignements de la Cour suprême, notamment dans l’arrêt H.L. c.

Canada (Procureur général), 2005 CSC25, [2005] 1 R.C.S. 401. [4] Par conséquent, il y a lieu de rejeter la requête pour permission. THEREFORE, THE UNDERSIGNED: [8] DISMISSES the motion for extension of time. MARIE ST-PIERRE, J.A. [1] (1994), (QC CA), 95 C.C.C. (3d) 277 (Q.C.A.). See also: G.L.-S. v. R., 2006 QCCA 961; Craig v. R., 2006 QCCA339; Velez-Garcia v. R., 2006 QCCA 207 , J.E. 2006-482 (C.A.); Sandeise v. R., 2007 QCCA 359; Lemieux v. R., 2008 QCCA648;Callery v. R., 2010 QCCA 369; Clavette v. R., 2010 QCCA 1338; Bélanger v. R, 2010 QCCA 2392 , 2010 QCCA2392;Desnoyers v. R. 2012 QCCA 611; Gauthier-Dion v.

R, 2012 QCCA 612 and Lezame v. R.,2012 QCCA 1701