2014 QCCA 2269, 2014 QCCA 2269

Bates c. R. 2014 QCCA 2269 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005617-145 ( 500-01-003167-993 ) MINUTES OF THE HEARING DATE: December 12, 2014 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. FRANÇOIS DOYON, J.A. GENEVIÈVE MARCOTTE, J.A. APPELLANT ATTORNEYS CHRISTOPHER BATES Mtre JEROME P. KENNEDY Mtre TARA SANTINI (present) ( Roebothan, McKay, Marshall ) RESPONDENT ATTORNEY her majesty the queen Mtre ALEXANDRE BOUCHER ( Directeur des poursuites criminelles et pénales )

In appeal from a judgment rendered on September 11, 2000 by the Honourable Justice Jerry Zigman, of the Superior Court, District of Montreal. DESCRIPTION : Motion for an extension of time and for permission to appeal a conviction (Art. 675

(1) a) iii) and 678 (2) of the Criminal Code ) (Art. 15 of the Rules of the Court of Appeal of Quebec in Criminal Matters ) Motion to admit fresh evidence ( S. 683 of the Criminal Code ) Clerk: Linda Côté Courtroom: Pierre-Basile-Mignault HEARING 09h15 Continued from December 8, 2014. The attorneys have been excused from being present. Judgment – see page 3. Conclusion of the hearing. (

s) Linda Côté Clerk BY THE COURT JUDGMENT [ 1 ] Despite the doubtful credibility of certain witnesses and a defence of alibi, the Petitioner was found guilty on December 17 th , 1993 of second degree murder, conspiracy to commit armed robbery and armed robbery. In light of fresh evidence adduced by the Petitioner, the Court of Appeal granted his appeal on May 12 th , 1998 and ordered a new trial. At the time, the Petitioner had spent more than five years in prison and he was released pending the new trial.

[ 2 ] On September 11 th , 2000, the Petitioner, then represented by attorney Marc Labelle, pleaded guilty to the charge of conspiracy to commit armed robbery; in return, the Crown withdrew the accusations of armed robbery and murder.

The parties jointly suggested a 12-month period of imprisonment to be served in the community, which suggestion was agreed to by the judge of the Superior Court and this, after having questioned the Petitioner as to the validity of his plea of guilty. [ 3 ] Contesting the validity of the plea, the Petitioner is now asking for an extension of the delay to appeal and for the authorization to appeal and to file some fresh evidence. THE CONTEXT [ 4 ] The Petitioner denies being guilty of the crime for which he entered a plea of guilty. He argues that he was ill advised by his attorney when he did so.

He questions the value of the evidence put forward by the Crown, referring in this regard to the comments made by the Crown attorney to the judge at the hearing which lead to his plea: Je ne vous parle pas de mon opinion personnelle ni de fait que je pourrais pas mettre en preuve, je vous dis que étant assis sur une de ces douze (12) chaises-là, je n’aurais pas pu, hors de tout doute raisonnable, conclure que monsieur Bates avait quelque soit, - était

partie de quelque façon que ce soit au meurtre, parce que tout simplement j’aurais deux (2) témoignages non fiables et aucune corroboration et aucune preuve matérielle. [ 5 ] In addition, according to the Petitioner, there was no credible evidence of his participation to a conspiracy. [ 6 ] He alleges having pleaded guilty because he felt he had no other choice. Mtre Labelle was advising him to accept the offer made by the Crown and, at the time, he felt that his attorney was not adequately prepared for trial, and that an unfavourable outcome was predictable.

Shaken by the years spent in prison and the violence that he had witnessed, or was subjected to, he was terrified by the idea of having to go back to prison. His mind was confused. He was anxious, scared and, given what he perceived to be a lack of preparation on the part of his attorney, he could foresee the risk of being found guilty again of murder. This led him to accept the offer made by the Crown and to plead guilty. [ 7 ] In the years that followed, and even throughout the period during which he was represented by Mtre Labelle, he tried to retain the services of other counsel, but to no avail.

They either refused to represent him or their fees were simply too high. [ 8 ] According to the psychological expertise prepared by Dr. John Arrowood, dated June 17 th and December 23 rd , 2003, the Petitioner was suffering from Posttraumatic Stress Disorder since his release and until his plea of guilty, because of what he had experienced in prison. According to the expert, on the basis of the information provided by the Petitioner, “this very likely seriously compromised his judgment, reasoning, and ability to reasonably foresee the consequences of his actions”.

This state of mind could also explain why he did not pursue the appeal proceedings in the months following his plea of guilty as “it is extremely likely that he would have continued to suffer Posttraumatic Stress symptoms subsequent to September 2000”, which “prevented him from pursuing an appeal.” [ 9 ] In this regard, counsel for the Petitioner, Mr. Jerome P. Kennedy, was informed on November 11 th , 2003, of the steps taken by Mtre Denis Barrette in the year 2000, and particularly in October of that year.

After having been contacted by the Petitioner, Mtre Barrette communicated with the Legal Aid services in order to be authorized to act for him and filed a Motion to extend the delay to appeal, which motion was granted, resulting in the delay being extended to December 12 th , 2000. However, the Petitioner did not take the appropriate steps to pursue the proceedings and Mtre Barrette experienced difficulties in communicating with him afterwards.

The Petitioner alleges that his wife was going through a difficult pregnancy at the time, and that he had to spend considerable time at the hospital. [ 10 ] An application for review was filed with the Federal Minister of Justice by Mtre Kennedy on October 25h, 2007, in accordance with

section 696.1 Cr. C. It was denied on January 8, 2008, on the basis that the Petitioner had “not exhausted his appeal rights” by not perfecting the appeal in 2000. Thus, the present proceedings finally launched in March 2014. It must be added that Mtre Kennedy was not available to act for the Petitioner from 2007 to 2013, on account of his involvement in politics during that period. [ 11 ] Mtre Kennedy also experienced difficulties in retaining the services of a Quebec attorney and in gathering all relevant evidence.

THE ANALYSIS [ 12 ] At the time of the plea of guilty, while the Crown attorney did acknowledge that the evidence concerning the participation of the Petitioner in the murder was not credible and could hardly justify a verdict of guilt, he also stated that the evidence could justify a verdict of guilt with regard to the crime of conspiracy in connection with the armed robbery. He went on to explain why the parties were suggesting a sentence of imprisonment to be served in the community, mainly on the basis of the time Mr.

Bates had spent in prison before his release, being the equivalent of a 10 year sentence of imprisonment. [ 13 ] The judge questioned the Petitioner extensively to make sure that his plea of guilty was a valid one. In fact, this step of the proceedings covers 9 pages of transcript, addressing all topics relevant to the exercise.

In short, the Petitioner can hardly complain about the way the judge handled his plea of guilty, the procedure followed making it difficult for this Court to question its validity. [ 14 ] In these circumstances, does “the justice of the case [require] that an extension of time be granted”, [1] taking into account the concept of finality of judgments and the proper functioning of the justice system? [2] [ 15 ] The Court does not believe so. [ 16 ] In addition to the measures taken by the judge at the time the plea of guilty was entered (which leads to believe that the plea was free, wilfully made, non equivocal, clear and well informed), the delays which followed stand unexplained, particularly

a) the

seven-year delay between the extension of delay granted by this Court on October 12 th , 2000 and the filing of the application for review with the Minister of Justice, and

b) the five-year delay after the Petitioner was informed of the Minister’s decision in January 2008. The personal situation of the Petitioner simply cannot justify his negligence to act, for example, in failing to show up at the Legal Aid services bureau to complete the documentation required for Mtre Barrette to act for him and to press his appeal forward. Moreover, the opinion of Dr.

Arrowood, completed more than 3 years after the plea of guilty, is not compelling: if the Posttraumatic Stress Disorder could have affected in some way the Petitioner at the time that he entered his plea of guilty, the report does not show how he could not understand the importance and the consequences of his plea, nor how the disorder could have prevented him from pursuing the proceedings launched by Mtre Barrette before this Court. [ 17 ] A 14 year delay to file an appeal after a plea of guilty in connection with events occurring more than 20 years ago is more than unusual and renders the exercise even more difficult.

Mtre Labelle’s affidavit and his cross-examination clearly show the limits and the risks of attempting this exercise after such a long period of time. There is nothing in the fresh evidence to demonstrate that Mtre Labelle would have been incompetent or would have otherwise ill-represented his client. One can easily understand why Mtre Labelle is not in a position to answer some specific questions about what happened at the time, this situation being a direct consequence of such a long delay.

Mtre Labelle’s testimony confirms that the Petitioner pleaded guilty voluntarily and in full knowledge of what he was doing. The evidence shows that the Petitioner was sufficiently aware of the situation and of the consequences of his decision to plead guilty for the Court to conclude that said decision was voluntary and that, in fact, he achieved the desired outcome: he avoided returning to prison. [ 18 ] Finally, the Petitioner contests the quality of the evidence concerning his guilt by raising the weakness of the Crown’s evidence for the murder and armed robbery charges. This evidence is however irrelevant.

In accepting the offer made by the Crown, he decided not to raise a defence regarding the charge of conspiracy to commit armed robbery while, at the same time, the Crown abandoned the murder and armed robbery charges. As a result, the argument pertaining to the strength of the evidence relating to these two charges has no merit. [ 19 ] In this context, even if the delay to appeal were to be extended, the Motion to be authorized to appeal would have to be dismissed.

FOR THESE REASONS, THE COURT: [ 20 ] GRANTS the Motion for fresh evidence; [ 21 ] DISMISSES the Motion to extend the delay to file an appeal; [ 22 ] DECLARES that the Motion to be authorized to file an appeal thus becomes moot. JACQUES CHAMBERLAND, J.A. FRANÇOIS DOYON, J.A. GENEVIÈVE MARCOTTE, J.A.