2022 QCCA 144, 2022 QCCA 144

Perez c. R. 2022 QCCA 144 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007485-210 (760-01-092778-197) DATE: February 3, 2022 CORAM: THE HONOURABLE MARTIN VAUCLAIR, J.A. MARIE-JOSÉE HOGUE, J.A. SIMON RUEL, J.A. DANNY WILLIAM PEREZ APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT WARNING : Order restricting publication: The Court of Quebec made an order under s. 486.4 Cr.C . directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way. [ 1 ] The respondent Her Majesty the Queen filed a motion to have the appeal of Danny William Perez declared abandoned. [ 2 ] For the reasons of Vauclair, J.A., with which Hogue and Ruel JJ.A., concur, THE COURT : [ 3 ] GRANTS the motion; [ 4 ] DECLARES the appeal abandoned. MARTIN VAUCLAIR, J.A.

MARIE-JOSÉE HOGUE, J.A. SIMON RUEL, J.A. Mtre Constantin Kiryakidis CENTRE COMMUNAUTAIRE JURIDIQUE DE LA RIVE-SUD For the Appellant Mtre Patrick Cardinal DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the Respondent Date of hearing: January 17, 2022

REASONS OF VAUCLAIR, J.A. [5] In this matter, the respondent on appeal (the applicant here) filed a motion to have the appeal declared abandoned. Facts [6] After a three-day trial, appellant Perez was found guilty on December 15, 2020, by Judge Bertrand St-Arnaud of the Court ofQuébec, Criminal and Penal Division, District of Beauharnois, of the charge brought against him. [7] The appellant was not assisted by counsel at trial. After the verdict, in the presence of the appellant, a presentence report wasordered, and sentencing was postponed to March 10, 2021.

The appellant never attended his meetings with the probation officer for thepreparation of the presentence report. [8] On January 21, 2021, the appellant, represented by counsel, was granted a motion to extend the time limit for appealing, and hefiled a notice of appeal on February 26, 2021, alleging not fewer than fourteen errors of law. [9] On March 2, 2021, the appellant wrote to Judge St-Arnaud informing him that he would not be present at the March 10 hearing,stating: I chose to terminate the life estate and I choose not to be present due to the nature and subject matter contained in the notice sent to theAttorney General and The Lieutenant Governor of Québec on February 10, 2021, which I provide a copy for your enlightenment, and toavoid any injury to myself that may come from your institutional bias opinion rendered.

As a result of your opinion it caused me to be infear for my Life, Liberty and Land. March 3rd 2021 MAIL: [...]@msn.com [10] Attached to the email was a letter, the content of which is not relevant, addressed jointly to Her Majesty Queen Elizabeth II at theOffice of the Attorney General of Quebec and at the Office of the Lieutenant Governor of Quebec. [11] The appellant absconded and did not appear on March 10, 2021, for the sentencing hearing.

A warrant for his arrest was issuedand, to date, he is still at large. [12] On December 8, 2021, after hearing from counsel for the appellant, the respondent filed a motion to dismiss the appeal. OnDecember 13, 2021, the respondent was authorized to use a special mode of service on the appellant: 2021 QCCA 1937. [13] In support of the motion to dismiss, the respondent filed an email from police officer Laliberté of the City of Châteauguay’spolice department. According to a police verification, the appellant no longer lives at his known address in Châteauguay.

A search ofgovernment and police databases did not provide a new address or location. Pursuant to information that had been obtained, the policeexpected the appellant to be at a government office for a meeting, but the surveillance operation was not successful. [14] The appellant was not heard from until December 13, 2021. Assisted by counsel, he was present by telephone when the mattercame before another panel of the Court. He was also in attendance by telephone for the hearing of the present motion. He is fully awareof the warrant issued against him.

His counsel informed the Court that the appellant has no intention of surrendering. [15] Counsel has now perfected the appeal. Counsel also explained that, in his professional opinion, the mental fitness of the appellantshould have raised concerns at trial and still does. Thus, he questions the voluntariness of recent events and of the appellant’s efforts tostay at large, notwithstanding the warrant for his arrest. [16] At the hearing, the Court took the matter under advisement and asked the parties to inform the Court should the appellantsurrender before the following Thursday at 3 p.m.

Jurisdiction of the Court [17] It is undisputed that appellate jurisdiction exercised by a court of appeal must be grounded in legislation: Canadian BroadcastingCorp. v. Manitoba, 2021 SCC 33, para. 62. [18] It is also undisputed that there is no statutory power to entertain the respondent's motion. However, courts of criminal jurisdictionhave the power to control their own process. In Canadian Broadcasting Corp. v.

New Brunswick (Attorney General), (SCC), [1996] 3 SCR 480, at para 37, the Supreme Court stated the following: The first such value is the power vested in courts of criminal jurisdiction to control their own process in furtherance of the rule of law. This was recognized in United Nurses of Alberta v. Alberta (Attorney General), (SCC), [1992] 1 S.C.R. 901, whereMcLachlin J. noted that “[t]he rule of law is directly dependent on the ability of the courts to enforce their process and maintain theirdignity and respect” (p. 931). Similarly, in B.C.G.E.U. v.

British Columbia (Attorney General), (SCC), [1988] 2 S.C.R.214, this Court referred to the English decision of Morris v. Crown Office, [1970] 1 All E.R. 1079 (C.A.), where, at p. 1081, it was said:

The course of justice must not be deflected or interfered with. Those who strike at it strike at the very foundations of our society. Tomaintain law and order, the judges have, and must have, power at once to deal with those who offend against it. [19] More recently, the Supreme Court reaffirmed that "[i]n addition to any explicit grant, statutory and appellate courts should beunderstood to have the implicit power to control their own process and exercise other powers that are practically necessary to accomplishthe role the law assigns them": Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33, para. 62; R. v.

Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, para. 19. [20] If any doubt remains, which I think not, R. v. Jacobs, (SCC), [1971] S.C.R. 92 is surely on point. The appellanthad failed to appear when his appeal came up for hearing and the Court dismissed the appeal. The Supreme Court ruled that the appellatecourt exercised its "discretionary power relating to practice concerning the proper administration of justice in criminal matters". [21]

Section 33 of the Rules of the Court of Appeal of Quebec in Criminal Matters, SI/2018-96 (the “Rules”) is in keeping with suchpowers, as it provides that "[t]he Court may make any order required in the interests of justice / [l]a Cour peut rendre toute ordonnanceconforme aux exigences de la justice". [22] Rule 75 specifies circumstances in which an appeal may be declared to have been abandoned: Abandoned appeals 75. If the appeal is not ready to be placed onthe roll within six months following thefiling of the notice of appeal [sic] providedfor in

section 30, or one year following thefiling of the notice of appeal or from thedate of the judgment granting leave toappeal, the clerk may inscribe the case on aspecial roll and, to this end, shall provide atleast 30 days’ notice to the parties. If theparty is not represented by counsel, thenotice shall be sent by registered mail.

If the appeal is not ready to be placed on theroll on the date mentioned in the notice, theCourt, after providing the parties anopportunity to be heard, may declare theappeal abandoned, declare the appeal readyto be placed on the roll or declare that therespondent is foreclosed from pleadingunless the party in default can show validcause, in which case the Court shall makethe order it deems appropriate. Appel abandonné 75.

Si l’appel n’est pas en état dans les sixmois qui suivent la production de l’avisprévu à l’article 30 ou une année après ledépôt de l’avis d’appel ou du jugementautorisant l’appel, le greffier peut porter lacause sur un rôle spécial et, à cette fin,donne aux parties et à leurs avocats un avisécrit d’au moins 30 jours. Si la

partie n’estpas représentée par avocat, l’avis lui estenvoyé par courrier recommandé. Si l’appel n’est pas en état à la date fixéedans l’avis, la Cour, après avoir donné auxparties l’occasion de se faire entendre, peutdéclarer l’appel abandonné, déclarer ledossier en état ou déclarer que l’intimé estforclos de plaider à moins que la

partie endéfaut ne fournisse une justification valable,auquel cas la Cour rend l’ordonnance qu’ellejuge appropriée. [23] The

section 30 notice also provides for the payment of costs for the transcript. [24] This reflects the Court's control over its own process. Failure to perfect an appeal as per s. 75 of the Rules is not, however, theonly reason that allows the Court to declare the appeal abandoned.

Repudiation of the Court’s jurisdiction [25] Repudiation of the Court’s jurisdiction is not the source of its jurisdiction, but rather the reason for exercising its jurisdiction todeclare the appeal abandoned. [26] This Court has consistently affirmed the words of Gale, C.J.O., who stated the well-established and “basic principle that when aperson repudiates the jurisdiction of the Court he ought not to be permitted to invoke its aid.”: R. c. Dzambas (1974), (ON CA), 14 C.C.C. (2d) 364, p. 365 (Ont. CA); see Roberge c. R., 2021 QCCA 1917; Dubé c.

R., 2021 QCCA 190, para. 7 ; Egorho v.Minister of Justice Canada, 2020 QCCA 1800; Bédard c. Canada (Ministre de la Justice), 2012 QCCA 154 ; R. c. Piché, (QC CA). [27] Other cases also indicate that appellate courts have acknowledged the principle and have often refused to hear appeals fromappellants who have repudiated the jurisdiction of the court or have flouted the orders they wished to appeal: see R. v. Ngong, 2021ONCA 62; R. v. K.M., 2019 BCCA 229; R. v. Dolinski, 2017 ONCA 495 ; R. v. Noddle, 2016 BCCA 164; United States of America v.Nash, 2005 BCCA 310; R. v. Gervais, 2004 BCCA 322; R. v.

Ethier, 2010 BCCA 422; R. v. Gerow, (BC CA); R. v.Bonvie (J.L.), , (BC CA); R. v. Shaver, 1999 BCCA 85. [28] All of these decisions dealt with an appellant who absconded after breaching a release order he had undertaken to respect or aprobation order, or after escaping from custody. [29] In R. c. Piché, (QC CA), the appeal followed a forfeiture procedure. The appellant was found to be a personwho had absconded within the meaning of s. 462.38(2) Cr.C. The Court, after deciding that an absconding person may still have a right

to appeal under s. 462.44 Cr.C., nevertheless granted the respondent’s motion to dismiss the appeal. It is worth noting that Otis, J.A.provides an interesting and useful review of American jurisprudence, showing that sanctions for such conduct have roots dating back tothe 19th century. [30] R. c. Ramirez, 2005 QCCA 467, was a sentence appeal. The appellant sought to have his sentence reduced by one day to avoidthe immigration consequences.

Although the appellant was not out on bail, the Court determined that he was fleeing from theimmigration authorities and it dismissed his motion for leave to appeal. [31] In R. v. McCauley, (BC CA), the appellant, who was out on bail, had failed to attend the sentencing hearing intwo files, and bench warrants had been issued. His application for leave to appeal was dismissed. [32] In R. c. Mansoor, 2019 QCCA 1053, trial record No. 750-01-046368-153 shows that the appellant was out on bail when he failedto attend his sentencing hearing, and a bench warrant had been issued.

The Court granted the motion to dismiss the appeal. [33] In R. c. Damani, 2018 QCCA 882, there is no indication that the appellant was under any conditions but, as in the present case,he had failed to appear for his sentencing hearing and a bench warrant had been issued. Five months later, his whereabouts were stillunknown. The Court declared the appeal abandoned. [34] The application of the principle and the refusal to entertain an appeal is, however, discretionary. In Purves v.

Canada (AttorneyGeneral), (BC CA), 54 C.C.C. (3d) 355 (BC CA) the Court exercised its discretion to hear and decide the appeal,which raised important issues. In R. c. Piché, (QC CA), Delisle, J.A. also acknowledged the discretion of the Court insuch matters. Remedy sought: declare the appeal abandoned or dismiss the appeal [35] As to the remedy sought, courts sometimes dismiss the appeal, and they sometimes declare the appeal abandoned.

Respectfully,this may well be a matter of semantics and thus inconsequential. [36] Nonetheless, rather than dismiss the appeal, I prefer to declare the appeal abandoned, which is consistent with the Rules and thefacts. Both orders would ultimately have the same effect and, since, in making such an order, the Court does not rule on the merits of theappeal, the appellant can ask the Court to rescind its judgment: R. v. Jacobs, (SCC), [1971] S.C.R. 92.

When to entertain the motion [37] Should the Court address the respondent's application before the date set for the hearing of the appeal? [38] In most cases, the motion is brought on the day set for hearing. On that date, the inference that the appellant repudiates thejurisdiction of the Court becomes more obvious if not ineluctable. [39] I am of the view, however, that the Court may exercise its jurisdiction before that date. [40] Thus, although the motion will generally be presented on the date set for the hearing of the appeal, there may be circumstances—such as those set out in

section 75 of the Rules—where no purpose would be served in waiting for a hearing date to declare an appealabandoned. In such circumstances, the motion should be presented to the Court in advance. The present case is an illustration of asituation in which waiting is pointless.

Analysis [41] When an appellant is under a legal restriction, whether by reason of bail conditions, probation, or other legal conditions, and hisabsence is an obvious breach of his obligations, it will usually be indicative of the fact that he is flouting or repudiating the jurisdictionof the Court. [42] If the Court does indeed conclude that an appellant is flouting or repudiating the jurisdiction of the Court, it nevertheless retainsthe discretion to proceed with the appeal. [43] R. v. Dauti, 2017 ABCA 26, is a good example. In that case, the appellant was sentenced, in absentia, to three years’imprisonment.

At the time, the appellant was in Kosovo. The relevant facts are encapsulated in the following excerpt: "the appellantsubmits that this is not a situation where an individual has flouted the jurisdiction of the court. Instead, the appellant swears under oaththat he intended to return but could not, due to unforeseen circumstances, and has not been authorized to return to Canada.

He swearsunder oath that if he is permitted by the CBSA to return to Canada he would return immediately, knowing that this means surrenderinginto custody, either at the airport in Kosovo or in Canada". [44] The Alberta Court of Appeal refused the application to dismiss because it was "not persuaded on the evidence that the appellantintended to repudiate the authority of Canadian courts", nor that he "intentionally failed to appear for sentencing or that he [was] refusingto surrender himself". The matter came before the Court again in 2019 for the appellant’s application to set a hearing date.

The Courtheld that the appellant was responsible for his continued absence and refused to set a hearing date, instead authorizing the respondent toapply for an order dismissing the appeal: R v Dauti, 2019 ABCA 59. The respondent made that application later that year, but it wasdismissed because the Court in 2017 did not conclude that the appellant had flouted the jurisdiction of the Court, and none of theadditional evidence changed this conclusion: R v. Dauti, 2019 ABCA 188. The appeal was finally heard, and dismissed: R. v.

Dauti,2019 ABCA 434. [45] Appellant Perez signed an undertaking before a police officer, which did not include a condition to ensure his presence before theCourt. There are not many cases in which an absconding appellant was not under legal conditions of some kind. R. c. Damani, 2018QCCA 882, is one such case.

[ 46 ] In most cases, a warrant for the absconding appellant’s arrest will have been issued and reasonable attempts to arrest him will have failed. The record should offer some explanation as to why that is so. [ 47 ] Further, a significant period needs to have elapsed from the day the warrant was issued. For example, in forfeiture procedures,

section 462.38 Cr.C . provides that a person will be deemed to have absconded after a period of six months. Other evidence may offer a strong indication that the person absconded and suffice to declare an appeal abandoned. The significance of the delay should be assessed in light of all the circumstances. [ 48 ] In the present matter, first, the exhibits filed, which I accept, show that the appellant was before Judge St-Arnaud when the date for a sentencing hearing was set. Second, in the interim, the appellant did not report to the probation officer for the preparation of the presentence report.

Third, he willfully wrote to the judge to announce that he would be absent at the sentencing hearing. Fourth, a warrant for his arrest was issued. Fifth, the police made a reasonable attempt to enforce the warrant. Police should be required to invest the necessary resources dictated by the circumstances or the public interest. They should be expected to use the databases available to them and make inquiries at the absconding appellant’s last known address, as well as follow up using the information obtained. They did so in this case.

Finally, nine months have elapsed since the warrant was issued. [ 49 ] The stage to which the appeal has progressed and the importance of the questions raised are also relevant factors to consider. The appellant filed his brief quite recently. Consequently, in theory, the appeal can proceed when the respondent files its brief. The numerous proposed grounds of appeal, however, do not raise matters of importance to the administration of justice. [ 50 ] Finally, the appellant has not surrendered and has explicitly refused to do so. Counsel raised the issue of the appellant's mental fitness.

Although this is surely not irrelevant, there is no evidence to sustain such a claim. While it may be said that the appellant's letters contain somewhat incoherent thoughts, with all due respect, I think that more is needed to conclude that the appellant is unfit or that his actions and decisions are not voluntary. This is a difficult issue, but it can only be resolved if the appellant surrenders. Conclusion [ 51 ] I have no difficulty in finding that the facts lead to the inexorable conclusion that the appellant is absconding and I propose to grant the motion and declare the appeal abandoned.

MARTIN VAUCLAIR, J.A.