2023 QCCA 426, 2023 QCCA 426

McKillop c. R. 2023 QCCA 426 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-007909-227 ( 550-01-105293-189 ) MINUTES OF HEARING WARNING : The trial court made an order under s. 486.4(1) 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 directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way. DATE: February 20, 2023 CORAM: THE HONOURABLE MARTIN VAUCLAIR, J.A. STÉPHANE SANSFAÇON, J.A. PETER KALICHMAN, J.A.

APPLICANT COUNSEL Hamish McKillop Mtre Diane Magas RESPONDENT COUNSEL HIS MAJESTY THE KING Mtre Francis Villeneuve Ménard ( Director of Criminal and Penal Prosecutions ) DESCRIPTION: Motion to extend the time for appeal. Motion for leave to appeal from a sentence. Motion for release from prison. Clerk at the hearing : René Gutknecht Courtroom: Pierre-Basile-Mignault HEARING 10:10 Commencement of the hearing.

Identification of counsel. 10:11 Submissions by Mtre Magas. 10:23 Discussion between the Court and Mtre Magas. 10:24 Submissions by Mtre Villeneuve-Ménard. 10:28 Discussion between the Court and Villeneuve-Ménard. (Criteria) 10:30 Mtre Villeneuve-Ménard resumes his submissions. 10:37 Recess of the hearing. 10:49 Resumption of the hearing. 10:50 BY THE COURT: Judgment – see page 3. 10:51 Discussion between the Court and parties for case management.

10:56 Discussion between the Court and Mtre Magas. (Motion to release, affidavit) 10:59 Recess of the hearing. 11:21 Resumption of the hearing. 11:22 Discussion between the Court and Mtre Magas. (Affidavit) 11:23 The hearing of the motion to release from prison will be continued on February 21, 2023, at 9h15, in Pierre-Basile-Mignault courtroom. The parties are excused from appearing in Court. If the Court is unable to render judgment on that date, the case will be taken under advisement and the parties will be notified in advance. 11:24 Conclusion of the hearing.

René Gutknecht, Clerk at the hearing JUDGMENT WARNING : The trial court made an order under s. 486.4(1) 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 directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way.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 applicant was convicted on October 16, 2019. He appealed that judgment within the applicable time limit. A sentence of 21 months’ imprisonment was imposed on June 9, 2021.

He then filed an application for an extension of the time to seek leave to appeal, which was dismissed by a judge of the Court on November 17, 2022. [ 2 ] On January 10, 2023, the Court dismissed the appeal of the verdict. The applicant now presents a new motion for leave to appeal the sentence and for an extension of the time to seek leave to appeal. The applicant raises a number of arguments, including that

section 742.1 (

f) Cr.C . was repealed on the same day his first application for leave to appeal was dismissed by a judge of this Court. In addition, he points out that in its January 10, 2023, judgment, this Court identified errors of fact made by the trial judge that were reiterated in his sentencing judgment and that may have had an influence on the sentence. [ 3 ] The Court considers that in the circumstances of this case, it is in the interest of justice that both the motion to extend the time to seek leave to appeal and the motion for leave to appeal be granted. [ 4 ] Considering that the proceedings should be undertaken without briefs, on the basis of the fast-track procedure, as provided for in

section 59 of the Rules of the Court of Appeal of Quebec in criminal Matters ( R.C.A.Q.C.M . ); [ 5 ] Considering sections 59 and 60 R.C.A.Q.C.M . , which provide as follows: 59. Fast-track. If a judge grants the motion for leave to appeal or refers it to the Court, the proceedings shall be undertaken, without briefs, on the basis of the fast-track procedure. Timetable . The judge shall establish a timetable for the filing, in five copies and after notification to the other party, of the documents that stand in lieu of the brief. (…) Default.

If the documents are not filed before the expiration of the time limit established by the judge or the clerk, the clerk shall file a certificate of default in the record and shall thereafter refuse any documents from the defaulting party. The clerk shall so inform the Chief Justice and the judges who are to hear the motion for leave or the appeal. 60. Documents that must be filed. The appellant shall file the following documents: a) (

a) the motion for leave to appeal and the judgment granting the motion or referring it to the Court, as the case may be; b) (

b) the indictment; c) (

c) the sentence, including the reasons and the conclusion; d) (

d) the depositions from the sentencing hearing and the exhibits, if any; e) (

e) any other relevant remarks of the trial judge and the parties made in the course of submissions as to the sentence; f) (

f) the questionnaire, available in the Office of the Court or on the Court’s website, duly completed. Respondent’s questionnaire . The respondent may also notify the duly completed questionnaire to the appellant and file five copies of the questionnaire with the Office of the Court, no later than 21 days before the date of the hearing of the motion for leave or the appeal.

Written argument . The parties may attach to their documents arguments not exceeding 10 pages with at least one and one-half spaces between the lines, except for quotations, which shall be single-spaced and intended. The typeface shall be 12-point Arial font for the entire text. Exceptionally, 11-point Arial font may be used for quotations and 10- point Arial font may be used for footnotes. The margins shall be no less than 2.5 cm.

A judge may order that such arguments be prepared when the issues raised by the appeal so warrant. (…) FOR THESE REASONS, THE COURT: [ 6 ] GRANTS the motion to extend the time for appeal; [ 7 ] GRANTS the motion for leave to appeal from a sentence; [ 8 ] DECLARES that the proceedings shall be undertaken, without briefs, on the basis of the fast-track procedure; [ 9 ] PLACES the file on the roll of September 15, 2023, in room Pierre-Basile-Mignault at 9:30 a.m., to be pleaded without briefs, for a duration of 60 minutes (30 minutes for the applicant; 30 minutes for the respondent) ; [ 10 ] ORDERS the applicant, after notification to the respondent, to file with the Office of the Court, no later than March 30, 2023 , fives copies of the documents mentioned in

section 60 R.C.A.Q.C.M . and, if applicable, an argument of no more than 10 pages ; [ 11 ] ORDERS the respondent, after notification to the applicant, to file with the Office of the Court, no later than May 9, 2023 , fives copies of an argument of no more than 10 pages ; [ 12 ] ORDERS the parties, in accordance with sections 18 and 60 R.C.A.Q.C.M . , to file their argument drafted on good quality white letter paper (21.5 cm by 28 cm) with at least one and one-half spaces between the lines (except for quotations, which shall be single- spaced and indented).

The typeface shall be 12-point Arial font for the entire text. Exceptionally, 11-point Arial font may be used for quotations and 10-point Arial font may be used for footnotes. The margins shall be no less than 2.5 cm. The text shall be reproduced on one side only of each sheet; [ 13 ] ORDERS that the documents filed include a cover page and a table of contents with pages numbered consecutively; [ 14 ] ALLOWS the respondent, as provided by the second paragraph of

section 60 R.C.A.Q.C.M . , to notify the duly completed questionnaire to the applicant and file fives copies of the questionnaire with the Office of the Court, no later than 21 days before the date of the hearing of the motion for leave or the appeal; [ 15 ] ORDERS the parties to attach a technological version as a USB key to each copy of their documents filed in lieu of the brief. This version must permit keyword searches and include hyperlinks from the table of contents to the documents filed in lieu of the brief and from the argument to the schedules.

The USB key shall be identified in the same matter as a pleading (s. 12 R.C.A.Q.C.M . ) ; [ 16 ] REMINDS the parties that they may notify and file a book of authorities with the Office of the Court at least 30 days before the hearing (s. 46 R.C.A.Q.C.M. ). The book of authorities shall be prepared in accordance with

section 44 R.C.A.Q.C.M. MARTIN VAUCLAIR, J.A. STÉPHANE SANSFAÇON, J.A. PETER KALICHMAN, J.A.