2011 QCCA 793, 2011 QCCA 793

Decoursay c. R. 2011 QCCA 793 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No: 200-10-002560-105 (615-01-014106-085) (615-01-014842-093) (615-01-015395-091) (615-01-015655-098) (615-01-016550-108) DATE: April 28, 2011 IN THE PRESENCE OF THE HONOURABLE LORNE GIROUX, J.A. ROCKY DECOURSAY PETITIONER – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT [ 1 ] The applicant seeks leave to appeal from a judgment of the Quebec Court rendered on July 5, 2010, which convicted him of 11 offenses, including two convictions for breaking and entering a dwelling-house with intent to commit an indictable offense (348(1) (a)

d) Cr. C. ), six convictions for failing to comply with a probation order (733.1(1)

a) and

b) Cr. C. ), two convictions for failing to comply with a condition of an undertaking (143(3)

a) Cr. C. ) and a conviction for failure to attend court (145(2)

b) Cr.

C. ). [ 2 ] On the same date, the applicant was sentenced to a total of 33 months of imprisonment. [ 3 ] The applicant is also seeking an order extending the time within which to appeal. [ 4 ] To succeed on his application for an extension of delay, the applicant must normally establish an intention to appeal while the right of appeal existed, arguable grounds of appeal and reasonable diligence in seeking to exercise the right to appeal [1] . [ 5 ] The applicant, not being represented by counsel and being detained, expressed his intention to appeal in a letter sent by fax to the Office of the Court as early as July 9, 2010, followed by an affidavit of August 19, 2010, a Motion to extend the time for an appeal dated September 22, 2010 and, after a hearing held on March 23, 2011, a Motion for permission to appeal filed on April 11, 2011. [ 6 ] On the evidence, I find that the applicant has established an intention to appeal within the normal delay for an appeal and has been reasonably diligent in seeking to exercise his right of appeal. [ 7 ] The applicant must also establish arguable grounds for an appeal, that is, that there is some merit to his proposed appeal.

In order to be able to decide whether the applicant has satisfied this condition, it is necessary to look at the grounds of appeal set out by the applicant in his Motion for getting leave to appeal with respect of each count in each file for which he was found guilty on July 5, 2010. [ 8 ] In file # 615-01-014106-085, the applicant was found guilty of two counts of breaking and entering on July 3 and 4, in Val d’Or and two counts of failing to comply with a probation order as a consequence of his offenses of breaking and entering.

He was also convicted of one count of failing to comply with a probation order in not abstaining from communicating with C.C. (Count 5). [ 9 ] The applicant submits a number of grounds of appeal against these convictions. He argues that the indictments were not properly signed nor stamped nor regularly sworn and that therefore the proceedings are invalid.

I find no merit in these arguments as the record shows that all required formalities had been executed prior to the beginning of the trial. [ 10 ] The applicant also submits that the trial judge misunderstood his questions to C.C. when he has cross-examining her at trial as being an admission on his part that he broke into her house on July 3 and 4, 2008. [ 11 ] On the first day of the trial, May 19, 2010, three witnesses were heard for the prosecution: the complainant, C.S. and two police officers.

The complainant testified that on July 3 and 4, 2008, she came home to her house to find the applicant hidden under a bed, on July 3, and in the basement, on July 4. In cross-examination, the complainant was asked by the applicant the following questions: Q You said you were, you said, you told to the Court today that you were surprised to see me downstairs at your apartment. Vous avez dit à la Cour aujourd’hui que vous étiez surprise de me voir en, en bas de votre appartement.

R Oui. Yes. Q Surprised? Surprise? R Oui. Yes. Q Not scared? Pas effrayée? R De ce que je me rappelle à ce moment-là, j’étais surprise … Q Yes or no, Miss Castonguay. R If I remember, I was surprised … Q Oui ou non … MONSIEUR LE JUGE BIGUÉ : You’ll leave the, the witness answer and then you ask another question after. So the question was: not scared? Answer. LE TÉMOIN: Donc à ce moment-là c’est ça, je me rappelle avoir été surprise. At that time I remember I was surprised. […] Q So when was that you were surprised to see me? Alors quand est-ce que vous étiez surprise de me voir? R Le trois (3). The third (3 rd ).

Q The third (3 rd ). R Puis le quatre (4). And the fourth (4 th ). Q The third (3 rd ) and the fourth (4 th )? Le trois (3) et le quatre (4). R Oui. Yes. [ 12 ] In his oral judgment of July 5, 2010, the trial judge purported to apply the principles laid down by the Supreme Court in R. v. W. (D.) [2] . He decided that he did not believe the applicant’s testimony “… because he told himself that he was there” [3] . He then ruled that “… examining all the evidence including the admissions made by the accused concerning his presence in the place …” [4] , the applicant’s version did not create a doubt in his mind.

In both instances, the judge relied on the cross-examination of the complainant by the applicant as cited above to find that the latter had admitted being in the complainant’s house on July 3 and 4. [ 13 ] It may well be that, on a careful consideration of all the evidence, the testimony of the witnesses for the prosecution could be held to be sufficient for a conviction.

However, at this stage, I find that the applicant’s argument that the trial judge was misled into believing that the questions asked by the applicant in this cross-examination of the complainant constituted an admission on his part that he broke into her house on July 3 and 4, 2008, is serious enough to warrant leave to appeal so that it can be submitted to a panel of the Court. [ 14 ] Since a conviction on counts 1 and 2 entails a conviction on grounds 5, 6 and 7, leave to appeal should be granted on all the counts in file # 615-01-014106-085. [ 15 ] In file # 615-01-015395-091, the applicant was found guilty of neglecting to respect a probation order by failing to pay, within 12 months, a sum of $1,500 to the Elementary School of Rapid Lake.

[ 16 ] Since the applicant admitted his failure to pay within the delay, the judge was right in finding him guilty of that offense and the applicant’s Motion for leave to appeal should be dismissed with respect to his conviction in that file. [ 17 ] In file # 615-01-014842-093, the applicant was convicted on two counts of failing to respect conditions of a probation order of May 2, 2008 issued in file # 615-01-013746-089 by failing to report to his probation officer and to inform the Court or the probation officer of his change of address. [ 18 ] Applicant’s arguments that his undertaking to signed upon his release on July 9, 2008 in file # 615-01-014106-085 superseded his probation order of May 2, 2008 in file # 615-01-013746-089 is without value.

The fact that according to his undertaking of July 9, 2008, he was to leave Val d’Or and reside in Rapid Lake did not excuse him from notifying his change of address as required by his probation order of May 2, 2008. His Motion for leave to appeal should therefore be dismissed with respect to the convictions in file # 615-01-014842-093. [ 19 ] In file # 615-01-015655-098, applicant was convicted of two counts of failing to comply with a condition of his undertaking of July 9, 2008, in file # 615-01-014106-085.

His failure to comply between August 26 and August 31, 2008 laid in not reporting to a police station before leaving for Rapid Lake and secondly, in being in Val d’Or for purposes other than those allowed in his undertaking. The applicant does not articulate any ground of appeal in his Motion for leave to appeal as against these convictions. It follows that leave to appeal cannot be granted with respect to the convictions in file # 615-01-015655-098. [ 20 ] In file # 615-01-016550-108, the applicant was found guilty on one count of failing to attend Court as required by the Court following an earlier appearance.

After his arrest and his release in file # 615-01-015655-098, he was scheduled to appear in Court on March 26, 2009 following his appearance of February 22, 2010. The applicant submits that he was not served with a summons requiring his appearance on March 26, 2010. This argument is ill founded in that there was no need for a warrant since he was himself before the Court on February 22, 2010 and was then informed that he had to be present in Court on March 26, 2010.

Therefore, his Motion for leave to appeal in file # 615-01-016550-108 will be dismissed. [ 21 ] Finally, I would like to commend the attorney for the prosecution for the patience and helpfulness she demonstrated through all the proceedings both towards the Court and the applicant.

FOR THESE REASONS, THE UNDERSIGNED: [ 22 ] GRANTS the motion for extending the time within which to appeal, in part; [ 23 ] EXTENDS the time within which to appeal all the convictions in file # 615-01-014106-085; [ 24 ] GRANTS the motion for leave to appeal, in part; [ 25 ] GRANTS leave to appeal all the convictions in file # 615-01-014106-085; [ 26 ] DISMISSES the motion to extend the time within which to appeal with respect to the convictions in files # 615-01-015395- 091, 615-01-014842-093, 615-01-015655-098 and # 615-01-016550-108; [ 27 ] DISMISSES the motion for leave to appeal with respect to the convictions in files # 615-01-015395-091, 615-01-014842-093, 615-01-015655-098 and # 615-01-016550-108.

LORNE GIROUX, J.A. Rocky Decoursay Personally M e Audrey Roy-Cloutier Criminal and penal prosecuting attorney For the respondent Date of hearing: April 21, 2011