2012 QCCA 2011, 2012 QCCA 2011

Parkinson-Makara c. R. 2012 QCCA 2011 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-004541-098 ( 550-01-034489-080 ) MINUTES OF THE HEARING DATE: November 7, 2012 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. MARIE ST-PIERRE, J.A. CLEMENT GASCON, J.A. APPELLANT ATTORNEY(

S) BROOK PARKINSON-MAKARA Mtre Diego Gramajo STEPHEN ANGERS, AVOCAT INC. RESPONDENT ATTORNEY(

S) HER MAJESTY THE QUEEN Mtre Jean Campeau CRIMINAL AND PENAL PROSECUTING ATTORNEY

On appeal from a judgment rendered on July 24, 2008, by the Honourable Judge Serge Laurin of the Quebec Court, District of Hull NATURE OF THE APPEAL : Appeal from conviction, motion to produce new evidence. Clerk: Marcelle Desmarais Courtroom: Antonio-Lamer HEARING Continuation of the hearing of November 6, 2012. Judgment – see page 3. Marcelle Desmarais Clerk BY THE COURT JUDGMENT

I THE FACTS AND THE PROCEEDINGS [ 1 ] While being detained at a provincial prison in Gatineau to await sentencing after having pleaded guilty to charges of sexual assault, assault, sequestration and breach of conditions, the appellant was charged with three counts of uttering death threats or threats of bodily harm [1] and one count of criminal harassment. [2] In all four instances, the putative victim of the threats and the harassment was a correctional officer, Roxanne Sura. [ 2 ] At a trial at which he acted on his own behalf, Mr.

Parkinson-Makara was found guilty by the Court of Quebec (the Honourable Judge Serge Laurin) of two of the three counts of uttering threats and the count of criminal harassment, while being acquitted of one of the counts of uttering threats. [3] The Crown has not appealed that acquittal. [ 3 ] In the main, his appeal focuses on various grounds related to the fairness of the trial in the manner it was conducted by the trial judge. It also brings into question whether the trial judge improperly took account of irrelevant factors in his determination of Mr.

Parkinson-Makara's guilt on the counts for which he was found guilty. [ 4 ] During the initial stage of his detention for the charges to which he pleaded guilty, the appellant requested to be transferred within the prison to what is commonly referred to as "the hole", the essence of which means that he was segregated from the rest of the prison population.

In the sentencing process, the Crown sought to have him declared a dangerous offender, [4] and as part of its contentions in this respect, invoked the appellant's request to be transferred to the hole, thus demonstrating, from its perspective, his inability to function within society. Upon learning of the Crown's position in this respect, the appellant requested to be transferred out of the hole.

Eventually, in August of 2007, he was placed in a sector of the prison reserved for sexual offenders and detainees suffering from psychiatric problems. [ 5 ] While there, it suffices to say that the appellant had a variety of interpersonal difficulties with other detainees, as well as Ms. Sura. In November of 2007, this resulted in his being transferred to a different sector of the prison.

After his transfer, in April of 2008, the charges for which the trial judge found him guilty were laid against him. [ 6 ] The trial in the Court of Quebec lasted three hours, at which the Crown called three detainees to whom the appellant would have uttered his threats, as well as Ms. Sura. The appellant also testified in his own defence. [5] [ 7 ] The first detainee, Michel Martineau, testified that the appellant told him that if he was declared a dangerous offender, he would go after Ms.

Sura in a manner that he described in detail and which, if carried out, would at a minimum have seriously injured her and possibly killed her by exsanguination. [6] [ 8 ] The appellant's efforts to fully cross-examine Mr. Martineau proved to be ineffective. When he attempted to question him with respect to the details of his prior convictions, Crown counsel produced a supposed list of same that was nevertheless incomplete, having left out those offences related to sexual assault, on which Mr. Martineau could therefore not be cross-examined.

The witness also simply refused to answer some questions, without the judge intervening in any way. It is also apparent that the appellant was unable to pursue his cross-examination effectively as the result of numerous objections by Crown counsel that were of doubtful validity. [ 9 ] Robert Lahaie testified that he witnessed an altercation between the appellant and Ms. Sura during which Mr.

Parkinson-Makara would have threatened her by pointing his fist in her direction, and telling her he would stab her with a home-made knife. [7] In cross- examination, however, he acknowledged that the appellant spoke in English to Ms. Sura, and that he is not perfectly bilingual. Mr. Lahaie did not testify that Mr. Parkinson-Makara conveyed any threat to him with respect to Ms. Sura, rather, he was a witness of a threat the appellant made to Ms.

Sura. [ 10 ] The third and final detainee, Robert Morissette, testified that the appellant always had his fists up, ready to strike, and that he was always angry with the correctional officers. He says he heard the appellant tell Ms. Sura he would grab her by the hair, sodomize her and then slit her throat, all the while referring to her, in Mr. Morissette's words, as a "maudite bitch". In cross-examination, the witness acknowledged that some of the statements he attributed to the appellant had not been mentioned in his prior written statement, which the witness attributed to forgetfulness on his part. [ 11 ] Ms.

Sura testified to several incidents in which the appellant was aggressive and intimidating to her, and that she had been called upon to intervene with him following complaints from other detainees that he had struck them. [8] He also would have continued to follow her as she was making rounds, despite the fact that she had told him his doing so made her uneasy. She felt so uneasy about him that she requested he be transferred to a different sector within the prison, and that when he was transferred, he tried to throw himself on her.

During this process, he insulted her, by saying, in her words, that she was "une putain du tiers monde". She acknowledged she didn't understand much English, but enough to know that what he was saying to her was demeaning and insulting. [ 12 ] Ms. Sura had been unaware of the appellant having made death threats about her to other detainees until after Mr. Martineau had spoken to her unit chief. In cross-examination, she was unable to say the appellant had directly threatened her, but that she had felt threatened.

She also acknowledged never having filed a disciplinary complaint against the appellant, although she had done so with respect to another detainee who had threatened her. [ 13 ] When he testified, the appellant tried to explain the testimony of Messrs. Martineau, Lahaie and Morissette by the fact that they wanted him out of their sector as well as his being a non-smoker, which led him to often open a window to air out the premises, plus the fact that he did not always agree with their choice of television programming. As far as Ms.

Sura was concerned, he acknowledged being frustrated by the fact that she always seemed to believe other detainees who were complaining about him, and that her lack of command of English forced him to speak to her in French. He further acknowledged that he may well have insulted her or been angry with her or even clenched his fists in her presence, but that he never tried to threaten her, or follow her on rounds or point his fists in her direction.

He explained the clenching of his fists as a means to express his anger about the situation in which he found himself and the fact that he felt he was the victim of having "special arrangements" being made for him.

[ 14 ] The appellant further acknowledged having threatened Mr. Martineau, but never Ms. Sura. In fact, he never would have confided in Mr. Martineau about wanting to kill Ms. Sura, precisely because of the animosity that existed between them. [ 15 ] In the course of his judgment, the trial judge commented on what he perceived to be the appellant's "écarts de comportement" during the trial and noted that "son air et son comportement sont menaçants". He thus said that he understood why Ms. Sura had felt threatened by the threats and inappropriate behaviour Ms.

Sura described. [ 16 ] The trial judge rejected the testimony of the appellant, and held that the Crown had established his guilt beyond a reasonable doubt save for the count of having directly threatened Ms. Sura. II NEW EVIDENCE [ 17 ] With respect to the question of new evidence the appellant seeks to introduce in appeal that was referred to it, [9] the Court holds that Exhibits R-1 to R-5 should be admitted for the limited purpose of demonstrating that the appellant was denied a fair trial due to his not having been represented by counsel. Doing so is consistent with the Crown's position in this respect.

Accordingly, at the hearing, the Court granted the appellant's motion and authorized the production of the new evidence, together with the responsive evidence the Crown sought to introduce for its purposes. III ANALYSIS AND DISCUSSION [ 18 ] The Court is of the view that the judgment of the Court of Quebec should be set aside, a verdict of acquittal should be substituted for the verdict of conviction on count 3 (uttering a threat to Robert Lahaie to harm Ms. Sura), and a permanent stay of proceedings entered with respect to counts 2 and 4.

Here is why. [ 19 ] First, with respect, the trial judge failed in his duty to adequately provide reasonable assistance to the appellant in the conduct of his defence and to guide him in such a way that his defence be presented with full force and effect.

To the same extent, the judge failed to remind the accused of his right to the assistance of counsel. [10] [ 20 ] While it is true that the appellant was not appearing in a criminal court for the first time and thus had some experience with the process – qua client – it is a rather large leap from being a client to acting on your own behalf against a professionally trained and experienced Crown counsel.

We will never know what the effect might have been if the judge had tried to explain the disadvantages the appellant was facing by acting on his own behalf and the corresponding advantages from which he would benefit by having counsel, since the judge did not undertake the exercise. [ 21 ] Indeed, the fact that the appellant was inexperienced and unable to adequately deal with the typically unpredictable happenings at a trial is best evidenced by his bewilderment at the proper course of action to follow when an issue arose as to the production of documents in the possession of the correctional authorities that Mr.

Parkinson-Makara wanted to have produced. Their purpose would have been to impugn the credibility of Mr. Martineau by showing he had written love letters to a female correctional officer. These documents being in the possession of a third party to the proceedings, Crown counsel argued that Mr. Parkinson-Makara should have proceeded in accordance with the requirements of R. v. O'Connor . [11] The trial judge explained that if Mr. Martineau did not admit the fact that the appellant sought to have on the record, he could call the correctional officer. [ 22 ] Mr. Parkinson-Makara did not pursue the issue with Mr.

Martineau, but sought to raise it during his own testimony, at which point the judge explained that the letters in question were not in evidence and thus he could not speak about them. The following exchange demonstrates the difficulty he faced: THE ACCUSED : Look, I didn't do this and I'm getting accused by a guy - - It's not evidence, it should be evidence. What could I do? I talked to (inaudible), I asked her is it true, he sent you these things, he said : '' Yes I just deposited - - I just gave it to my sergeant.

LA COUR : Yes but - - THE ACCUSED : I can't ask her - - LA COUR : You can serve a subpoena to those people. THE ACCUSED : No, I can't do that to her. I can't just say : ''Oh, […] by the way I know - - you know - - I'm an inmate, can you help me?'' I can't do that to her. You know what I mean? What I'm going to do? LA COUR : It's your case. THE ACCUSED : I asked her : ''Can I have it'' and she said you cannot have access to that file. LA COUR : Mm-hmm (Yes). THE ACCUSED : '' Because I won't be allowed, I get in trouble if I give it to you.'' And I said : ''well - -''.

She said : ''Get a lawyer - - LA COUR : Mm-hmm (Yes). THE ACCUSED : - - to try to get in contact with me.'' But I can't get a lawyer to get in contact. And there are all kinds of things in this guy's file. Like - - If I could present - - If I had that letter and if I had - - if I comes to that, and I have to get a lawyer to go in that file and get those letter, because I know she deposited them, because she told me that she deposited them in his dossier, and there are other things

in his dossier, too. [ 23 ] As we have seen, the appellant never was able to call the correctional officer he sought to have testify to impugn the credibility of one of his accusers. The foregoing exchange could well have provided the trial judge with an opportunity to illustrate to the appellant the advantages he would gain by having the professional assistance of a lawyer, and to inquire what difficulties he had experienced. Instead, he let the matter slide and the evidence that could have been of some benefit to Mr. Parkinson-Makara's defence was never introduced.

It is surely not enough for a trial judge to simply say, "It's your case" when the nature of the difficulty an accused is having is explained, and to simply advise him to send a subpoena, without even inquiring whether the accused, who was still in detention, knew how to accomplish that objective in the middle of a trial. [ 24 ] It is also apparent that the appellant would not have been able, without the assistance of a lawyer, to obtain a plumitif that would have accurately shown the extent of the prior convictions of Mr. Martineau.

Similarly, he was unaware of the distinction between testimony and argument, and was not informed that if he chose to testify, he would lose the advantage of arguing last to the trial judge in accordance with subsection 651(3) Cr.C . [ 25 ] There is also the issue of the trial judge drawing a link between the behaviour of the appellant in the courtroom and the belief Ms. Sura entertained that she felt threatened. A similar issue arose in LSJPA – 121 , [12] an incest case in which the complainant had testified to the behaviour of her older brother during their adolescence and afterwards.

The trial judge there took it upon herself to "évaluer aussi les attitudes et comportements observés chez l'accusé" in her courtroom outside the context of his testimony, which she went on to describe as follows: [133] Pendant le témoignage de la victime, l'accusé était assis dans la salle avec le public, ce qui est justifié pendant le témoignage de la victime. [134] Cependant, il était assis les bras en croix, appuyé avec relâchement sur les chaises voisines, la jambe croisée, assis de côté et en oblique par rapport au Tribunal.

Pendant le témoignage de la victime, il ricane, grimace au point où il est rappelé à l'ordre à plusieurs reprises par l'huissier audiencier. […] [140] De plus, lors du témoignage de la victime, l'accusé démontre un irrespect réel à son égard. [141] Par contre, lorsque l'accusé devrait tout normalement respecter le fait de devoir s'asseoir à côté de son avocat, la seule réponse est qu'il se sent plus à l'aise assis dans la salle avec le public. [142] On pourrait interpréter l'ensemble de ces comportements en leur donnant d'autres significations.

Mais après une longue analyse et réflexion, le Tribunal ne peut mettre de côté l'image projetée par l'accusé tout au long de ce procès qui s'est échelonné sur neuf (9) jours : l'accusé se comporte comme s'il était porté par un rassurant sentiment d'impunité. [143] Le manque de respect observé de la part de l'accusé durant le témoignage de la victime est conforme à la manière dont la victime a décrit les agressions.

En effet, les agressions ont été décrites comme ayant été commises sans aucune précaution à l'égard de la victime, et ce, de façon méprisante. [ 26 ] The unanimous reasons delivered on behalf of this Court emphasized that the only relevant considerations it belonged to a trial judge to assess were those that arose from the accused's testimony as a witness: [76] En fait, la juge n'aurait même pas dû tenir compte de ces considérations. Un juge qui préside un jury en matière criminelle est obligé d'aviser les membres du jury de tenir compte uniquement de la preuve durant leurs délibérés : 10.

Types de preuve 10.1 Définition de la preuve [1] Pour décider des faits dans la présente affaire, vous ne devez examiner que la preuve qui vous est présentée dans la salle d’audience. La preuve est constituée de témoignages et de pièces produites. Elle peut également comprendre des admissions. [2] Les réponses d’un témoin aux questions qui lui sont posées font

partie de la preuve. Les questions, par contre, ne constituent pas de la preuve, à moins que le témoin ne soit d’accord avec ce qui est demandé. Seules les réponses du témoin constituent de la preuve. […] [5] Comme je vous l’ai expliqué plus tôt, certaines choses ne sont pas des éléments de preuve. Vous ne pouvez pas en tenir compte ni vous fonder sur celles-ci pour décider de la présente affaire. [77] Le comportement inapproprié ou inacceptable d'un accusé durant un procès ne constitue pas la preuve .

Un accusé doit être condamné parce que la preuve démontre hors de tout doute raisonnable qu'il a commis la ou les infractions qui lui sont reprochées. Son comportement durant le procès en salle d'audience n'a rien à voir avec sa crédibilité comme témoin et encore moins avec sa culpabilité.

Ce principe de base s'applique avec la même rigueur dans les procès devant un juge seul. [Emphasis added.] [ 27 ] These grounds alone are sufficient to set aside the verdicts of conviction, since it is apparent the judge's assessment of the appellant's behaviour in the courtroom but outside the witness box had an impact on his conclusion that the appellant did commit the offences for which he was found guilty. In principle, therefore, a new trial should be ordered on all three counts. As previously indicated, however, the Court will do otherwise.

[ 28 ] With respect to count 3, and as noted in paragraph [9] above, the evidence is to the effect that Robert Lahaie was a witness to Mr. Parkinson-Makara conveying a threat to Ms. Sura. The count with which the appellant was charged, however, is that he conveyed a threat to Mr. Lahaie that he would cause death or bodily harm to Ms. Sura. There was no evidence of such a threat in the manner alleged in that count. The trial judge thus erred in finding him guilty of count 3.

It follows that the appellant should have been acquitted of that count. [ 29 ] With respect to counts 2 and 4, the appellant will have served his term of imprisonment of two years as of February of 2013.

Even if he were to be re-tried and convicted on those counts, any sentence he would receive would necessarily have to take account of the 21 months already served plus any additional time in detention on the assumption he would not be released from custody pending the new trial. [ 30 ] The Court is therefore of the view that subsection 686(8) Cr.C . is sufficiently broad to authorize it to enter a permanent stay of proceedings with respect to those counts, essentially for the unanimous reasons given on behalf of the Court in Primus v.

The Queen, [13] which apply with the necessary adaptations to the circumstances of this case: [92] In light of the Crown not having met the evidentiary burden incumbent upon it, I believe the appropriate remedy is to allow the appeal, set aside the judgment of the Court of Quebec convicting Mr. Primus of the offence of dangerous driving causing death contrary to subsection 249(4) Cr.C . and direct the entry of a judgment of acquittal. I would propose that judgment be rendered accordingly. [93] Had I been instead of the view that a new trial should be ordered, I would have acquiesced to the suggestion of Mr.

Primus' counsel that the remaining charge against him be stayed, since he has already served the conditional sentence the trial judge imposed, and this Court dismissed the Crown's attempt to increase the sentence. [94] Subsection 686(2) Cr.C . provides two options when a court of appeal allows an appeal from conviction: either to direct or enter a judgment or verdict of acquittal; or, to order a new trial. In addition, a court of appeal allowing an appeal from conviction also has the power to direct a permanent stay of proceedings pursuant to subsection 686(8) Cr.C .

This latter provision allows a court of appeal, when exercising a power under subsection 686(2) Cr.C. , to "[...] make any order, in addition, that justice requires." In my view, justice would have required that Mr.

Primus not be put to the trouble and expense of a new trial that could not, even if the Crown were to succeed in establishing his guilt, realistically result in the imposition of a sentence additional to the one he has already served. [References omitted.] [ 31 ] In closing, the Court wishes to acknowledge the singular dedication of the appellant's counsel in this Court, Mtre Diego Gramajo, who took on responsibility for Mr. Parkinson-Makara's appeal after he had initiated it on his own.

His thoroughness and expertise for someone appearing for the first time in this Court was critical to the appeal being brought to a successful conclusion. Similarly, the Court also wishes to acknowledge the professionalism and candour of Crown counsel, Mtre Jean Campeau, who conceded errors in the conduct of the trial when it was appropriate to do so, and who was helpful in assisting the Court in arriving at a proper disposition of the appeal.

FOR THESE REASONS, THE COURT: [ 32 ] ALLOWS the appeal; [ 33 ] SETS ASIDE the verdicts of conviction entered by the Court of Quebec; [ 34 ] SUBSTITUTES a verdict of acquittal for the verdict of conviction on count 3 of the indictment; [ 35 ] DIRECTS the entry of a permanent stay of proceedings with respect to counts 2 and 4 of the indictment. ALLAN R. HILTON, J.A. MARIE ST-PIERRE, J.A. CLEMENT GASCON, J.A.