2019 QCCA 1332, 2019 QCCA 1332

Deschamps c. R. 2019 QCCA 1332 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007110-198 ( 500-01-071663-121 SEQ.ACC 002) MINUTES OF HEARING A PUBLICATION BAN RENDERED IN FIRST INSTANCE IS STILL IN FORCE ON ANY INFORMATION THAT COULD IDENTIFY THE VICTIMS (S. 486.4 CR.C.) DATE: August 1, 2019 THE HONOURABLE GENEVIÈVE MARCOTTE, J.A.

APPLICANT COUNSEL Josh Deschamps Mtre Mia Manocchio Mtre Jordan Trevick ( Yves Ménard Avocats ) RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre Maude Payette ( Director of Criminal and Penal Prosecutions ) On appeal from a judgment rendered on October 5, 2019 by the Honourable Manon Ouimet of the Court of Quebec , District of Montreal . DESCRIPTION: Application to extend the delay to appeal ( s. 678(2) of the Criminal Code ) . Clerk at the hearing : Stephane Robinson Courtroom: RC-18

HEARING 9:32 Commencement of the hearing. Identification of counsel. The Application to extend the delay to appeal is contested by the Crown. Recess of the hearing. 9:35 Resumption of the hearing. 9:35 Submissions by Mtre Manocchio. 9:42 Submission by Mtre Payette. 9:44 Rebuttal by Mtre Manocchio. 9:44 BY THE JUDGE : Judgment rendered forthwith by the Honourable Geneviève Marcotte J.A., for reasons that will be inserted in the minutes of the hearing – see page 3. 9:44 Conclusion of the hearing.

Stephane Robinson, Clerk at the hearing JUDGMENT A PUBLICATION BAN RENDERED IN FIRST INSTANCE IS STILL IN FORCE ON ANY INFORMATION THAT COULD IDENTIFY THE VICTIMS (S. 486.4 CR.C.) [ 1 ] On October 15, 2015, the Petitioner was found guilty of committing sexual assault, an indictable offence under subsections 272(1)

d) and 272(2)

b) of the Criminal Code . On June 17, 2016, he was sentenced to 18 months of imprisonment followed by probation. [ 2 ] On June 25, 2019, he filed his Motion to extend the delay to file his appeal. [ 3 ] In R. v.

Lamontagne [1] , Fish J.A. (as he then was) wrote at p. 283: To succeed on an application for extension of delays, the applicant must normally establish: (1) an intention to appeal while the right of appeal existed; (2) arguable grounds of appeal; (3) reasonable diligence in seeking to exercise the right to appeal within the prescribed time. [ 4 ] This approach has been followed by our Court along with other courts in Canada [2] and in R. v.

Roberge [3] , the Supreme Court adopted similar factors to guide the exercise of its discretion in granting like requests under the Supreme Court Act . [4] [ 5 ] Moreover, in R. v.

J.C.M. [5] , the Ontario Court of Appeal concluded that it could consider additional criteria in deciding to extend the delay to appeal, including the prejudice caused to the Crown: Depending on the case, the court may take into consideration other factors such as whether the consequences of the conviction are out of all proportion to the penalty imposed, whether the Crown will be prejudiced and whether the applicant has taken the benefit of the judgment. In the end, the main consideration is whether the applicant has demonstrated that justice requires that the extension of time be granted.

In our view, the appellant has not met the onus of demonstrating that an extension of time should be granted. [ 6 ] In the case at hand, the Petitioner has not established that he had any intention to appeal his conviction within the prescribed delay. His affidavit mentions that after being sentenced, his co-accused told him that he would appeal and that it was the last time that he spoke to him. It is not sufficient for the Petitioner to claim that he believed he was innocent and had no money to appeal without alleging any concrete steps taken to appeal of the conviction.

In fact, he served his sentence and did nothing at all prior to being approached by his new attorney after he testified in the spring of 2019 in the new trial that had been ordered by the Court of Appeal regarding his co- accused, Tim Robbins. More than 3 years and 8 months had passed since the verdict by the time the Petitioner filed his Motion to extend the delay to file an appeal in late June 2019. He simply fails to allege and demonstrate that he acted diligently.

[ 7 ] Moreover, the grounds of appeal raised in his Motion are extremely weak and they stand virtually no chance of success, they focus on the error of law on which the Court of appeal based its decision to order a new trial for his co-accused (in view of comments made by the trial judge relying on stereotypes to analyze the reasonableness of the co-accused’s claims regarding his behavior towards the complainant). Such an error is unrelated to the case at bar where the defense of the honest belief of consent to sexual intercourse was presented at trial.

The judge did not believe the Petitioner and held that his version did not raise any reasonable doubt, while she found the testimony of the victim to be credible. [ 8 ] Lastly, the Petitioner has failed to establish that the Crown will not be prejudiced by the extension of delay to appeal. [ 9 ] I am of the view that the extension of delay to file an appeal should not be granted in this case. FOR THESE REASONS, THE UNDERSIGNED: [ 10 ] DISMISSES the application to extend time to appeal. GENEVIÈVE MARCOTTE, J.A.