2022 QCCA 1475, 2022 QCCA 1475

Darveau c. R. 2022 QCCA 1475 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-007876-228 ( 500-01-175280-186 ) MINUTES OF HEARING DATE: October 24, 2022 CORAM: THE HONOURABLE ROBERT M. MAINVILLE, J.A. SUZANNE GAGNÉ, J.A. FRÉDÉRIC BACHAND, J.A.

APPLICANT COUNSEL GABRIEL DARVEAU Mtre BENJAMIN WILNER RESPONDENT COUNSEL HIS MAJESTY THE KING Mtre JEAN-PHILIPPE MACKAY ( Director of Criminal and Penal Prosecutions ) DESCRIPTION: Motion to extend the time for appeal ( Section 678(2) of the Criminal Code ) Motion for leave to appeal to withdraw a guilty plea (Sections 606 (1.1), 675 (1)(a)(iii) and 686(1)(a)(iii) of the Criminal Code ) Clerk at the hearing : Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING 9:36 Commencement of the hearing.

Identification of counsel. 9:36 Representations by Mtre Wilner. 9:39 Representations by Mtre McKay. 9:42 Recess of the hearing. 9:45 Resumption of the hearing. BY THE COURT : Judgement – see page 3.

Robert Osadchuck, Clerk at the hearing JUDGMENT [1] The applicant seeks an extension of the time to file an appeal as well as leave to appeal in order to withdraw his guilty plea. * * * [2] On September 24, 2018, the applicant was charged in Montreal with drug-related offences. On January 9, 2020, he was chargedin Ontario with other criminal offences which are not part of the record before us. [3] The applicant explains that he pursued a plea bargain by which the Ontario charges would be transferred to Quebec.

He wouldplead guilty to both the Ontario and Quebec charges understanding that he would receive concurrent sentences of 6.5 and 5 years,respectively, for these charges. [4] Because of delays in the transfer of the Ontario file, he pleaded guilty to the Quebec charges on March 15, 2021. In light offurther delays in the transfer, on August 9, 2021, he was sentenced for the Quebec charges to a total of 5 years imprisonment. [5] The Ontario file was eventually transferred to Quebec.

The federal Crown agreed to the negotiated 6.5-year total sentence forthese offences, but did not agree that this plea bargain included that the sentence would be served concurrently with the sentence for theQuebec offences. On February 3, 2022, the applicant pleaded guilty to the Ontario offences and received a 6.5-year sentence (less timeserved) to be served consecutively to the sentence for the Quebec offences. [6] Seven months later (September 2022), the applicant served his current motions to extend the time for filing an appeal and towithdraw his March 15, 2021, guilty plea to the Quebec offences.

He submits that he would not have pleaded guilty had he known thatthe sentence for the Quebec offences would not be served concurrently with the sentence for the Ontario offences. He claims a clearprejudice within the meaning of R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, allowing him to withdraw his guilty plea. [7] The applicant explains the delay in filing the motions as follows: (

a) the delay between the March 15, 2021, guilty plea to theQuebec offences and the February 3, 2022, guilty plea to the Ontario offences results from the confusion he alleges existed as to thescope of the plea bargains, i.e. the concurrent or consecutive nature of the sentences resulting from his plea negotiations; (

b) the delaybetween February 2022 and September 2022 (when the motions were filed) is, he claims, the result of delays in securing a legal aidmandate. * * * [8] The criteria to extend the time to appeal pursuant to s. 678(2) of the Criminal Code are well-known and are set out in thisCourt’s decision in R. c. Lamontagne (1994), (QC CA), 95 C.C.C. (3d) 277 (Que. C.A). The applicant must convincethe Court (1) that he had the intention to appeal in the timeframe specified by law; (2) that his grounds for appeal are serious; and (3)that he was reasonably diligent.

These criteria are applied flexibly taking into account the entire context in which the application is made. [9] Crown counsel recognizes that the applicant satisfies these criteria. [10] Indeed, in this case, though it is obvious that the applicant had no intention of appealing at the time of his conviction for theQuebec charges, this was because he was under the mistaken belief that his plea bargain would include a concurrent sentence once hepleaded guilty to the Ontario offences.

Consequently, it was only when he was sentenced for the Ontario offences on February 3, 2022,that this mistake became obvious. [11] As for the seven months which elapsed between February 3, 2022, and the filing of the motions, the evidence before usestablishes that this delay was largely attributable to securing a legal aid mandate to process the appeal.

This delay was beyond thecontrol of the applicant. [12] As a result, the time limit for filing a motion for leave to appeal will be extended. * * * [13] Crown counsel acknowledged at the hearing that the applicant held the belief that he would receive concurrent sentences. Moreparticularly, the Crown recognized the truthfulness of paragraph 19 of the applicant’s sworn statement in support of his motion for leaveto withdraw his guilty plea. [14] We are therefore of the view that there are sufficient elements in the file which justify granting leave to appeal. * * * FOR THESE REASONS, THE COURT:

[ 15 ] GRANTS the motion to extend the time for appeal; [ 16 ] EXTENDS the time limit for appealing the conviction rendered on March 15, 2021; [ 17 ] GRANTS the motion for leave to appeal the said conviction pursuant to s. 675(1)( a )(iii) of the Criminal Code and ALLOWS the applicant to appeal the said conviction. [ 18 ] REFERS the appeal to case management pursuant to ss. 32 and 33 of the Rules of the Court of Appeal of Quebec in Criminal Matters . ROBERT M. MAINVILLE, J.A. SUZANNE GAGNÉ, J.A. FRÉDÉRIC BACHAND, J.A.