2015 QCCA 1617, 2015 QCCA 1617

Unofficial English Translation Rail c. R. 2015 QCCA 1617 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-005404-130 (505-01-067799-078) MINUTES OF HEARING DATE: October 2, 2015 CORAM: THE HONOURABLE NICHOLAS KASIRER, J.A. DOMINIQUE BÉLANGER, J.A. MARK SCHRAGER, J.A. APPELLANT COUNSEL RÉAL SCOTT RAIL M tre Richard Dubé ( in absentia ) Raby, Dubé, LeBorgne RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre DANIEL ROYER ( in absentia ) Director of criminal and penal prosecutions

On appeal from a conviction rendered on March 28, 2013, by the Honourable Judge Gilles Cadieux of the Court of Quebec, Criminal and Penal Division, District of Longueuil. NATURE OF APPEAL: Guilt – 5 counts of fraud and use of forged documents – motion for a stay of proceedings dismissed Clerk: Marcelle Desmarais Courtroom: Antonio-Lamer HEARING 9 :35 a.m. Continuance of the hearing from September 29, 2015. Judgment filed this day – see page 3.

Marcelle Desmarais Court clerk PER CURIAM: JUDGMENT [ 1 ] Réal Scott Rail appeals from a judgment of the Court of Quebec, District of Longueuil (the Honourable Judge Denis Bouchard), rendered on March 28, 2013, convicting him on three counts of fraud (s. 380(1)(

a) Cr. C .), as well as one count of forgery (s.

367(

a) Cr. C . and one of use of a forged document (s. 368(1)(

a) Cr. C .). The Court acquitted him on another count of fraud. [1] [ 2 ] At the start of his trial, the appellant filed a motion for a stay of proceedings based on sections 7 and 24 of the Canadian Charter of Rights and Freedoms . In it, he alleged, among other things, that the destruction of documents by his ex-spouse violated his right to make full answer and defence and his right to a fair trial.

He also argued that continuing the trial in these circumstances would irreparably damage the integrity of the justice system. [ 3 ] Following a voir dire held on February 29, 2012, the judge reserved his decision on the outcome of the motion until the end of the trial. In the final judgment, the judge definitively dismissed the appellant’s motion before convicting him on five of the six charges laid against him. [ 4 ] Rail appeals from the judgment convicting him, claiming that the judge erred when he dismissed his motion for a stay of proceedings.

At the centre of his appeal is the consequence of the destruction of documents by a third party. He asks the Court to quash the conviction and order a stay of proceedings. Background [ 5 ] Between 2004 and 2006, the appellant set up various businesses in which Danielle Beauchamp and her son Jonathan Gagnon invested significant amounts of money.

He did not receive a salary during that time, but a large portion of his personal expenses were paid from the commercial accounts of these businesses. [ 6 ] Around December 1, 2005, Beauchamp spoke with Lucie Benjamin, the appellant’s spouse, to inform her that she had been carrying on an affair with the appellant. Benjamin then changed the locks on the house and asked the appellant to retrieve his personal belongings, which he did that very day.

Boxes of professional and corporate documents that belonged to him nonetheless remained in storage at Benjamin’s house. [ 7 ] Some time between late March and early April of 2006, Beauchamp informed Benjamin that she intended to file a complaint against Rail for fraud. [ 8 ] On April 18, 2006, the appellant wrote an email to Benjamin informing her that he [ translation ] “urgently” needed to pick up his boxes of documents.

That same day, she answered him that she had already thrown those boxes out [ translation ] “further to a recommendation from Danielle Beauchamp that she do so”. [ 9 ] On February 16, 2007, a warrant was issued for the appellant’s arrest. [ 10 ] In March of 2010, Beauchamp gave police officers a box of documents she had in her possession that were connected with the appellant’s business activities. These elements were brought to the awareness of the defence through the disclosure of evidence.

Judgment on voir dire dated February 29, 2012 [ 11 ] The judge heard evidence on the motion for a stay of proceedings during a four-day voir dire . The appellant testified at length, as did Beauchamp and Benjamin, among others. [ 12 ] From the evidence, the judge accepted that Beauchamp suggested to Benjamin that she destroy the documents belonging to the appellant that were in her possession. This recommendation, according to the judge, [ translation ] “was made during a conversation between two women who were certain they had been cheated on and who believed they had also been swindled.

This led to the destruction of the documents in question... the boxes containing the documents in question, and thus, a violation of the accused’s rights”. [ 13 ] The judge held that the evidence [ translation ] “did not allow a conclusive finding that Beauchamp’s recommendation was malicious and had an objectionable purpose”.

He also held that the appellant had not retrieved his documents when he had the chance, despite Benjamin’s repeated requests to that effect. [ 14 ] Quoting La [2] and his duty of prudence in the matter, the judge reserved judgment on the consequences of the destruction of the documents until the evidence at trial had been heard. [3] The judge noted that, on the merits, there was nothing preventing Rail from testifying, calling witnesses, or cross-examining those for the prosecution to counter the fraud charges.

He could also look for copies of bank account statements and other documents confirming his professional activities. Then, as an interim remedy, he gave the appellant some time to search for the documents and witnesses required for his defence, and ordered the prosecution to assist him with these efforts should he seek help.

Final judgment dated March 28, 2013, under appeal [ 15 ] The judgment convicting the appellant is 104 pages long; paragraphs [416] to [466] are dedicated to the motion for a stay of proceedings. [ 16 ] The appellant chose not to testify again at the trial on the merits. [ 17 ] In his analysis of the motion, the judge alluded to his interlocutory decision, stating: [ translation ] “In the context, the Court finds that there might have been a violation of the rights of the accused, even if Beauchamp was not an agent of the state, if there was actual and irreparable harm done to the accused’s right to a fair trial or if holding the trial caused irreparable harm to the integrity of the justice system” (para. [423], citation omitted). [ 18 ] To assess the harm caused by the loss of the documents, the judge considered the credibility of the appellant’s testimony (para. [430]).

Relying on various excerpts from that testimony, such as the list of allegedly missing documents, the judge opined that the testimony revealed several unlikely statements and that the appellant was [ translation ] “sowing confusion right, left, and centre” (para.

[439]). Furthermore, the judge found that much of the evidence raised by the appellant was not relevant to his defence (para. [463]).

As for his testimony on the motion for a stay of proceedings, the judge wrote that [ translation ] “the accused lacks overall credibility in his testimony, which, with respect to both the list of missing documents and his explanations, resembles fiction” (para. [464]). [ 19 ] The judge made several findings of fact respecting the motion for a stay of proceedings: the appellant did not pick up his boxes from Benjamin’s home despite her repeated requests that he do so, nor did he copy his computer files, take any steps to subpoena any witnesses who could corroborate his account of the contents of the allegedly missing documents, or even cross-examine the witnesses already called by the prosecution. [ 20 ] After considering the evidence, the judge found that the appellant had not shown, on a balance of probabilities, actual, let alone irreparable, harm to his right to make full answer and defence or to the integrity of the justice system (para. [465]).

He therefore dismissed the motion for a stay of proceedings. [ 21 ] On the merits of the case, the judge was critical of the appellant, noting that his testimony lacked credibility and was contradicted by solid evidence, significant aspects of which were corroborated (paras. [471] to [474]). The appellant trivialized the lies he told his victims, including those about his embellished curriculum vitae, the money he hid in a tax haven, and his alleged activities as a professional sports agent.

The judge noted, for example, that the appellant had falsely told Beauchamp that he was a former player for the Montreal Canadiens, that the team had given him a ring, that he held a university diploma, and that he had previously operated a business with $18 million in annual sales. He even claimed to hold a purchase option on high-value land where he wanted to build a sports center. The judge also noted that he falsely told another victim, Jacques Larouche, that he had a great deal of experience in business recovery and that he owned a Mercedes and land bordering Route 132.

The judge wrote that the [ translation ] “accused acknowledges a good number of these falsehoods without acknowledging their obvious consequences and does not deny telling them to Beauchamp and her son Jonathan Gagnon” (para. [556]). [ 22 ] Ultimately, he convicted the appellant on five of the six charges laid against him.

Merits of the appeal [ 23 ] The only issue on appeal is whether the judge’s decision to dismiss the motion for a stay of proceedings was well-founded. [ 24 ] The appellant argues that the destruction of the documents in question compromises his right to make full answer and defence and undermines the integrity of the justice system. In his view, and contrary to what the judge decided, this conduct justified a stay of proceedings according to two scenarios recently described by the Supreme Court in R v.

Babos [4] because there was in fact “prejudice to the accused’s right to a fair trial or the integrity of the justice system that ‘will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome’”. [5] [ 25 ] The appellant therefore disputes the judge’s conclusion that the destruction of the documents by a third party does not justify a stay of proceedings based on the harm caused. *** [ 26 ] Before taking a closer look at the arguments on appeal, some remarks on the analytical framework for motions for a stay of proceedings are in order. [ 27 ] The exceptional nature of a stay of proceedings is not at issue here.

Indeed, there are only rare cases –what the Supreme Court calls the “clearest of cases” [6] – where an abuse will justify this remedy. [ 28 ] As for the standard of review on appeal, in Tshiamala , our colleague Doyon, J.A. remarked that [7] the review of a judgment rendered under section 24(1) of the Charter must, because of the discretionary nature of such a judgment, be deferential on appeal.

Indeed, according to the teachings of the Supreme Court, [8] “appellate intervention is warranted only where a trial judge misdirects him or herself in law, commits a reviewable error of fact, or renders a decision that is ‘so clearly wrong as to amount to an injustice’”. *** [ 29 ] With this standard of review in mind, should it be found that the judge committed a reviewable error when he dismissed the motion for a stay of proceedings? [ 30 ] The appellant alleges that the judge erred in his

interpretation of the evidence. He is of the opinion that Beauchamp and Benjamin colluded to destroy the documents. Whether spurred by malice or vengeance, this conduct was intended to harm the appellant, who was already the subject of an information alleging fraud. The appellant argues in his factum that the judge should not have tolerated Beauchamp [ translation ] “obstructing the normal course of justice by acting maliciously and unlawfully to harm the accused and arrogate an undue advantage”.

He should have granted the motion at the voir dire and ordered a stay of proceedings under section 24(1) of the Charter . [ 31 ] The appellant then notes that he testified during the presentation of the motion for a stay of proceedings, providing a description from memory of the contents of the destroyed boxes. In the interlocutory judgment, the judge did not call the appellant’s credibility on this issue into question.

According to the appellant, it is very clear that he showed how the loss of the documents caused him actual harm justifying a stay of proceedings. [ 32 ] Furthermore, according to the appellant, the judge wrongfully encouraged him to testify at trial to determine whether harm might result from continuing the proceedings. The violation of his right to a fair trial and the integrity of the justice system is thereby necessarily worsened. [ 33 ] At trial, the appellant argued that the judge suddenly placed the appellant’s credibility at the core of his analysis to justify his

conclusion that there was no violation of his rights and no harm suffered. The appellant argues that the judge erred by requiring that he provide a detailed demonstration of the contents of the destroyed documents and their possible usefulness to his defence.

He also criticizes the judge for having erred in the assessment of his credibility, remarking that this Court may intervene [ translation ] “if it finds that the judge’s verdict, which was based on a question of credibility, is unreasonable”. [ 34 ] Let us consider the appellant’s grievances in greater depth. [ 35 ] First, the judge certainly did not commit a reviewable error by reserving his decision on the consequences of the destruction of the documents to the end of the trial. This falls within his discretionary power. In R. v.

La , [9] Sopinka J. recalls that it is often preferable for judges to do so, “[u]nless it is clear that no other course of action will cure the prejudice that is occasioned by the conduct giving rise to the abuse”. They are then better able to assess the actual nature of the harm and determine the appropriate remedy accordingly.

In the voir dire judgment, the judge merely followed the teachings of La , and he was right to do so. [ 36 ] Second, the appellant’s submission that seems to ask the Court to intervene because of the allegedly unreasonable nature of the judge’s credibility assessment must also be set aside at the outset. Indeed, the appellant has brought no substantive argument in support of this allegation or identified an error that would justify overruling the judge’s conclusion on this matter. This ground is without merit. [ 37 ] That being said, what should be the fate of the appellant’s main argument?

Did the judge err in finding that the accused had not established, on a balance of probabilities, that there was actual prejudice to his right to make full answer and defence and to the integrity of the justice system? [ 38 ] We point out that the documents were destroyed by Benjamin, not the police authorities. The loss of the documents is therefore a third person’s doing rather than the state’s.

Contrary to what the appellant intimates in his factum, this is not a case where the destruction of evidence is the result of a failure to comply with the duty to disclose or to preserve evidence that is incumbent on the Crown. That obligation applies only to elements that have been in the Crown’s possession. [10] It does not extend to third parties. [11] [ 39 ] We also point out that the appellant does not allege negligence on the part of state authorities in the events that resulted in the loss of the documents.

From this perspective, the appellant’s position differs from that of the accused in Simard , [12] where, given the supposed negligence of the investigators, he sought to place responsibility for the destruction of the documents by a third party on the shoulders of the state for the purposes of his motion for a stay of proceedings. [ 40 ] The appellant nevertheless insists that, in the voir dire judgment, the judge accepted that there was a [ translation ] “violation of his rights” and that this violation had to be remedied by a stay of proceedings. [ 41 ] The respondent notes that the judge did not at that point specify the violation to which he was referring, adding that in the final judgment he qualified the assertion that a violation of the appellant’s constitutional rights had taken place.

In the respondent’s opinion, there was no violation of the appellant’s Charter rights. In any event, the respondent argues, the judge found that the appellant had not demonstrated actual harm resulting from the loss of the documents, so a stay of proceedings could not be ordered. *** [ 42 ] Even supposing that the loss of the boxes resulted in a violation of the appellant’s right to make full answer and defence or to a fair trial, the judge was not wrong in finding that the appellant is not entitled to a stay of proceedings pursuant to subsection 24(1) of the Charter .

The appellant has not shown any error allowing the judge’s conclusions on the lack of harm justifying such a remedy to be overruled here. [ 43 ] First, with respect to the conduct of Benjamin and Beauchamp, in his preliminary judgment, the judge did not find that there was an obstruction of justice, the pursuit of an objectionable purpose, collusion to harm the appellant, or even malice.

Benjamin’s plan to move house, her wish to move on from her cheating spouse and to [ translation ] “no longer have anything to do with that man” are all reasons to destroy the boxes that had been piled in the garage for six months and have nothing to do with any intent to harm. Contrary to what the appellant argues, Benjamin simply explains that after she had asked him on many occasions to come pick up his personal belongings without success, she threw the boxes out. In addition, according to his final judgment, the judge found that Beauchamp’s testimony appeared credible (para. [558]).

Overall, the facts of this case have nothing in common with the facts in Carosella , where the systematic destruction of evidence by an organization financed by the government was carried out to “defeat the processes of the court”. [13] Unlike the situation in Carosella , the third parties in question here did not display reprehensible conduct that might be associated with the state. [ 44 ] Second, the judge’s conclusion as to the appellant’s lack of credibility makes his argument regarding the harm he suffered as a result of the destruction of the boxes quite tenuous.

As the respondent notes, we do not know what was destroyed in this case; the answer to that question lies largely with the appellant, who alone knew the exact contents of the boxes. Once he is not believed, the evidence of harm is weakened. [ 45 ] In his grounds to dismiss the motion, the judge explained in great detail why he did not believe the appellant on this aspect (paras. [426] to [464], passim ), questioning the very existence of some of the documents he referred to.

For example, respecting the loss of an alleged [ translation ] “Rail/Beauchamp agreement” authorizing the payment of the appellant’s personal expenses from company funds, the judge found that it was [ translation ] “unlikely” that this contract, which Beauchamp denies was drawn up, even existed (para. [440]).

He adds that it is just as unlikely [ translation ] “that the accused could remember the nature of all these notes and their contents and yet be unable to testify to ensure his defence” (para. [462]). [ 46 ] The judge also questioned the usefulness of some documents because of the low probative value placed on the appellant’s testimony. For example, with respect to the cost of putting together a promotional portfolio for Jonathan Gagnon, the appellant wanted to adduce the agreement that he entered into with Beauchamp on the subject (para. [442]).

But it is not the missing contract that grounds the conclusion that the appellant committed fraud here. No one disputes that Beauchamp gave him sums of money to promote her son’s career, which is furthermore confirmed by the cheques filed into evidence. It is the representations that led to her giving the appellant his

mandate, and what happened to this money and the portfolio in question, that is of consequence here. From the judge’s reasons, it appears that he felt it to be at the very least doubtful that the content of this agreement would cast any light on these issues or be useful to the appellant’s defence. [ 47 ] Furthermore, the appellant’s argument that the list of the contents of the boxes he prepared gave his testimony an [ translation ] “air of reality” does not stand up to scrutiny. This list was prepared by the appellant personally and is basically an enumeration [ translation ] “from memory” of missing documents.

This [ translation ] “exhibit” is nothing more than a written extension of his testimony, which was deemed to lack credibility, and that is how the judge viewed it. After hearing him, he questioned whether the appellant even knew what these documents contained (para. [433]). Several seem to overlap (paras. [436] to [437], [440], and [445] to [447]), and the testimony often concerns their context rather than their contents, which is described in general, imprecise, vague and convoluted terms.

In the judge’s view, the appellant’s answers on the subject [ translation ] “could not be more muddled” (para. [433]). [ 48 ] Conversely, the many other witnesses called by the prosecution offered many aspects of abundant evidence that the judge characterized as [ translation ] “solid, credible, convincing, and corroborated on important aspects” (para. [472]). [ 49 ] Assessing evidence falls under the judge’s discretion; the argument that he should have drawn one conclusion rather than another about the credibility of testimony or documentary evidence, or on the relationship between the two, does not identify an error justifying the intervention of the Court. [ 50 ] Duly represented by counsel at trial and on appeal, the appellant is wrong to argue that the judge forced him to testify to compensate for the loss of the documents.

In truth, far from compelling him from doing anything whatsoever, the judge gave him an opportunity and the tools to obtain the elements essential to his defence. The appellant appears to have done the strict minimum to reconstitute the evidence he claimed he needed. This observation arises from the lack of alternative evidence, such as what could have been offered by witnesses (para. [431]), some of whom were even called by the prosecution although the appellant did not examine them on the matter.

The appellant has therefore been the architect of his own misfortune, at least in part. [ 51 ] Finally, it is clear that, in many cases the alleged contents of the documents did not even constitute a defence to the charges filed against the appellant. According to the judge, he [ translation ] “confuses what might interest him with what might be relevant and admissible for his defence at trial” (para. [463]). Not to mention the fact that the appellant has also already admitted several essential elements of the alleged offences in his own testimony.

As we pointed out earlier, the judge remarked that the appellant did not deny that he made false representations to many of his victims. In such a context, it is difficult to see how missing documents would have helped him in any way. [ 52 ] With respect to the facts and the evidence on record, the judge was right to find that there was no actual prejudice to the appellant’s right to make full answer and defence. He has not discharged his burden of showing that this finding contained a reviewable error.

This ground of appeal should be dismissed. [ 53 ] Finally, does this conduct undermine the integrity of the justice system? [ 54 ] Once again, even were we to suppose that the analytical framework concerning the stay of proceedings set out in Babos was applicable to conduct not related to the state, and in fact the appellant has proposed no other conduct, the judge’s decision does not contain any reviewable errors.

In Babos , Moldaver, J. explains the type of conduct in the “residual” category where state conduct does not present a threat to the fairness of the trial but risks undermining the integrity of the judicial process: “the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system”. [14] [ 55 ] The judge saw no merit in the argument that this case involved conduct that threatened the integrity of the justice system.

We reiterate that there was no allegation of reprehensible state conduct in the record. In light of the absence of malice on the part of Beauchamp and Benjamin, it cannot even be said that, the state, through its choice to prosecute the appellant despite the loss of documents, committed

an act giving rise to such a risk by calling into to play, inter alia , the guarantee of a fair trial as provided in the Charter as would, for example, the passage of time in the case of a pre-charge delay. [15] [ 56 ] Ultimately, the appellant has not shown how the judge’s conclusion regarding the lack of harm to the integrity of the justice system based on an analysis of the evidence could be wrong. None of the arguments justify the intervention of the Court with regard to the discretionary decision of the judge not to order a stay of proceedings.

FOR THESE REASONS , the Court: [ 57 ] DISMISSES the appeal; [ 58 ] ORDERS the appellant to surrender himself within 72 hours. NICHOLAS KASIRER, J.A. DOMINIQUE BÉLANGER, J.A.

MARK SCHRAGER, J.A.