2018 QCCA 2004, 2018 QCCA 2004

Correctional Services of Canada c. Chemama 2018 QCCA 2004 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005556-145 ; 500-10-006208-167; 500-10-005357-130; 500-10-005444-136 (500-01-049364-109; 500-01-048577-107) DATE: November 26, 2018 CORAM: THE HONOURABLE YVES-MARIE MORISSETTE, J.A. ROBERT M. MAINVILLE, J.A. MARIE-JOSÉE HOGUE, J.A. CORRECTIONAL SERVICES OF CANADA APPLICANT v.

ERICH CHEMAMA RESPONDENT / APPELLANT and HER MAJESTY THE QUEEN / DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS IMPLEADED PARTY and AMICUS CURIAE IMPLEADED PARTY JUDGMENT [ 1 ] The Applicant asks the Court to rescind or, alternatively, to modify the terms of two judgments (referred to collectively as “the Orders”) which the Court had issued as case management measures and which were intended to assist the Respondent Erich Chemama in the preparing of his factums in four appeal currently pending before the Court. [ 2 ] A first judgment of the Court, rendered on September 29 th , 2016, (the “2016 Order”) contained the following orders and declarations: [7] THE COURT GRANTS THE APPLICATION IN PART AND ORDERS THE RESPONDENT:

i) TO REPATRIATE by bailiff to the Montreal Reception Center in Ste-Anne-des-Plaines, Quebec, ten (10) boxes, the property of Applicant, previously sent to the following storage facility in the Toronto area, the whole no later than October 7, 2016: […., Thornhill, Ontario]; ii) TO GIVE access to Mtre Paul Skolnik on or before October 28, 2016, in the company of Mtre Claudia Gagnon at the said reception center to review the content of the said boxes to determine that which is necessary for Applicant to prepare appeal factums in the four record numbers herein and to segregate such material; iii) TO RETAIN the balance of the materials deemed unnecessary to the instant four appeals after review by Mtre Skolnik and Mtre Gagnon; iv) TO MAKE the relevant material available to Applicant in a room in the prison facility where he is detained containing a computer, cd-rom and external hard disk as well as a Criminal Code and other legal material referred to hereinafter and subject to the following: a.

Any cd-rom or hard disk not in a form acceptable according to prison security norms be transferred to acceptable cd-rom or hard disk and be made available to Applicant, at the expense of Respondent; b. The said computer is to be connected to a printer which Applicant can use at his cost of $0.10 per page which cost includes ink; c. Access to the said room to be two continuous hours in the morning and three continuous hours in the afternoon; d. Criminal Code and statute materials as found in the

annexe to Martin’s Criminal Code are to be supplied to Applicant;

[8] DECLARES the cost of repatriation of boxes from Toronto, including storage fees incurred and to be incurred, shipping and handling to be for the account of Respondent and ORDERS Respondent to pay same in a timely fashion; [9] DECLARES that the computer will not be connected to the internet in accordance with prison security norms; [10] DECLARES that Applicant can purchase legal books at his expense; [11] DECLARES that this order is made without limitation to Applicant’s right to request additional legal materials, library or inter- library loans and telephone communication in accordance with prison regulations. [ 3 ] A second judgment of the Court was rendered on October 27 th , 2017 (the “2017 Order”).

It addressed various difficulties which were alleged to have arisen in the wake of the 2016 Order.

To the extent that it remains relevant here, the 2017 Order contained the following clarifications: FOR THESE REASONS, THE COURT: […] With regard to the motion of the amicus curiae for an order that Respondent complies with the order of the Quebec Court of Appeal dated September 29, 2016, and other relief : [28] TAKES cognizance that Correctional Services – Canada will file, within two weeks, further affidavit evidence regarding the sixty-three CDs referred to in the motion materials of the amicus curiae and the Applicant; [29] GRANTS the motion, in part; [30] ORDERS Mr.

Don Head, the Commissioner of Correctional Services – Canada, to comply with the Order of this Court in the present matter issued on September 29, 2016, the text of which is incorporated into the reasons hereinabove; […] With regard to the management of the files : [32] O RDERS the DCPP to provide to Mr. Chemama, the amicus curiae and this Court, in CD format, on or before December 15, 2017 or at such later date determined by the Court, or one of its judges, all evidence previously disclosed to Mr.

Chemama, in first instance in the present four matters; [33] ORDERS the DCPP to prepare Schedules I, II and III in all four of the present files, on or before May 1 st , 2018, or such later date as may be determined by the Court or one of its judges and ORDERS the clerk of each court of first instance, at its cost, to assist the DCPP with regard to such task; [34] O RDERS the amicus curiae , within ninety (90) days of receipt of the Schedules I, II and III as referred to hereinabove, to review same and all notices of appeal filed by the Applicant in the present four matters and to provide this Court with a report by way of analysis of each of the grounds raised in appeal by Applicant, subject to such further delay as this Court or one of its judges may grant. [ 4 ] At the commencement of the hearing on November 20 th , 2018, the Court was informed that the Respondent would not be present.

Currently incarcerated at the Special Handling Unit (SHU) in the Sainte-Anne-des-Plaines institution, he had asked the previous day to be placed on “suicide watch”. A warden present in the videoconferencing room at the SHU stated to the Court that suicide watch, in and of itself, did not preclude the Respondent’s attendance at the hearing through videoconferencing, but that he was simply refusing to present himself to the videoconferencing room. [ 5 ] In view of these facts, the Court, having had the benefit of the amicus curiae ’s representations on section 688 (2.1) (

a) and (

b) of the Criminal Code , decided to proceed with the hearing as scheduled. In the Court’s considered opinion, it would have been counter- productive, not to say futile, to postpone yet again what was in essence a case management hearing in order to issue a warrant and physically compel the Respondent’s presence in the videoconferencing room. In effect, the Respondent had waived whatever right he might otherwise have been in a position to assert under

section 688. [ 6 ] Prior to the hearing, on Sunday November 18 th , the Respondent had sent by email to the Court registry two “ notice[s] of application for judicial recusal ”, dated November 2 nd , and which concerned two members of the panel, Justices Mainville and Hogue. The Court does not accept emailed proceedings, a matter which was repeatedly explained to the Respondent over a period of several months and which he consistently disregarded.

Be that as it may, and apart from any procedural irregularity, however glaring, both Justices Mainville and Hogue were of the view that the recusal applications evinced no sustainable ground to support their conclusion.

Accordingly, they declined to recuse themselves. [ 7 ] The Applicant was then heard on its application, followed by the amicus curiae and counsel for the Director of criminal and penal prosecutions. [ 8 ] It bears repetition, first, that the Court of Appeal of Quebec is not a trial court and that it is not equipped to adjudicate on an array of conflicting questions of fact arising from sworn statements by correctional officials on the one hand, and on the other hand from unsworn allegations of fact disputing the assertions contained in those sworn statements. [ 9 ] Correctional institutions are a hierarchical and strictly controlled environment.

In a case such as this one, which for months has been characterised by the abusive, often violent, and at times dangerous behaviour of the Respondent, the Court is entitled to rely on the

sworn statements of correctional personnel, wardens, heads of security or other officials, who determine on a daily basis the conditions of incarceration of the inmates. Concerns about the diligent enforcement of the Hearsay Rule are out of place in this context, where members of the correctional personnel are under an obligation to report events accurately to their superiors. The Court is not concerned here with what precisely happened on one or several specified dates.

It is the pattern of behaviour over a period of several months which is relevant. [ 10 ] The Respondent complains that the present conditions of his incarceration in the SHU prevent the Applicant from abiding by the terms of the Orders. What must be realized, however, is that this state of affairs is the result of the Respondent’s own disruptive behaviour: he brought it upon himself by systematically abusing the special privileges extended by the Orders.

The internal security of the institution where the Respondent is incarcerated, as well as the personal safety of the Respondent and other inmates, impose restrictions which must be reconciled, but only so far as is possible, with the Orders. [ 11 ] When the Court issued the Orders, it acted on the assumption that the behaviour of the Respondent and of the correctional personnel would be equally reasonable and would allow for a normal, uncontentious, implementation of the terms of the Orders.

That is not what happened and it is now apparent that, since the 2016 Order, very little if any progress has been accomplished by the Respondent’s towards perfecting his appeals. [ 12 ] The record before the Court now contains several affidavits or supplemental affidavits from which it can be inferred that strict compliance with the Orders is effectively made difficult, if not impossible, by the Respondent’s consistent lack of cooperation with the correctional personnel. [ 13 ] The Acting Director General of the Applicant’s Security Branch states in an affidavit dated November 6, 2018, that “recent events in relation to the destruction of computer and phones by the Respondent

a) limit the capacity of CSC to respect integrally the September 29 th , 2016 Order…

b) place CSC in a situation where the integral respect of the September 29 th , 2016 Order would have some detrimental effect on other inmates who need to use the limited resources available (computer, phone, etc.) to, among other things, progress in their correctional plan (rehabilitation)…

c) create additional security risks, where inmates have recently expressed the desire to assault the Respondent (as it’s systematically happened in many of the different institutions where the Respondent was incarcerated)”. [ 14 ] Another affidavit, dated November 15 th , 2018, is from the Warden of the SHU. It contains the following passages: 7.

Since August 8 th , 2018, the Respondent has been incarcerated at the SHU which is the most secured prison in Canada, where the most dangerous prisoners are incarcerated, and accordingly where the prisoners’ movements are the most restricted, which explains why it is often commonly referred to as a “Super Max” security institution. 8. Since his arrival at the SHU, the Respondent has been placed in administrative segregation for security reasons, in accordance with

section 31 of the [ Corrections and Conditional Release Act ] and in accordance with his expressed preferences. 9. According to [Commissioner’s Directive 843] (Intervention to Preserve Life and Serious Bodily Harm), the Respondent is placed, on regular interval, in special surveillance for his own security, in accordance with his expressed desire and often with advanced notification. 10. The Respondent is also often placed in suicidal protocol, usually in accordance with his expressed preferences. 11.

Since his arrival at the SHU, the Respondent has refused or boycotted any proposed solution in relation to accommodation or potential accom​modation with respect to the September 29 th , 2016 Order. [ 15 ] According to the same source, the Respondent’s behaviour entails that the CSC must deploy at all times disproportionate resources, whether human, physical or financial, to ensure the safety of the Respondent while balancing this safety concern against the requirements of the Orders. [ 16 ] The Warden concludes her affidavit of November 25 th in these terms: 17.

For example, to ensure the better balance referred to above, the following measures could be put in place:

a) in regard to the obligations in relation to the “ Criminal Code and the other legal material” (hereafter the “Relevant Material”) of subparagraph [7] of the September 29 th , 2016 Order: i. limit the Relevant Material in the Respondent’s cell to what can be accommodated in a metal shelf 915 mm by 200 mm, in accordance with the safety requirements of DC 345 (Fire Safety Manual); ii. give the Respondent’s the possibility to initially choose the Relevant Material available in his cell in accordance with DC 345; iii. place the residual Relevant Material in a storage facility within the institution; iv. give the Respondent the possibility to have access, once a week following a clear and specific written request, to the residual Relevant Material in order to give him the possibility to swap the Relevant Material available to him in his cell, always in accordance with DC 345.

b) in regards to the obligations in relation to the “room” of subparagraph [7] (iv) of the September 29 th , 2016 Order, since it is practically impossible to offer a room at that effect at the [SHU] and since the Respondent has a desk in his cell, this obligation could refer to an environment where the Respondent is able to work on his appeal, without referring to the necessity that this room has a “computer, cd-rom and external hard disk” and because CD 345 without referring to the complete Relevant Material of the Respondent;

c) in regards to the obligations of the access to [a] “computer, cd-rom and external hard disk” of subparagraph [7] (iv) of the September 29 th , 2016 Order, because of the constant breaking of the computers by the Respondent and mainly because of the operational limitations at the SHU, the said obligation could possibly be separated with the obligation to offer a “room” where the Respondent has his Criminal Code and other Relevant Material;

d) in regards to the obligations that “computer is connected to a printer” of clause [7] (iv)

b) of the September 29 th , 2016 Order, because of the operational limitations at the SHU, the Respondent could have access to a printer without the computer being constantly connected to it; and

e) in regards to the obligations of the duration and the frequency and the access to the “room” of clause [7] (iv)

c) of the September 29 th , 2016 Order, because of the constant breaking of the said Relevant Material and because of the operational limitations at the SHU, it could be subject to: i. his good behaviour (not breaking CSC property, not creating security issues for himself or other inmates, etc.); ii. the availability, taking into consideration, among other things, the requirement to also give reasonable access to other SHU inmates; iii. the operational constraints (for example, short staff to ensure the disp0lacement of the inmates, searches, incidents, etc.) and iv. any relevant safety or security issue. [ 17 ] In the exercise of its case management powers, it is not possible for the Court to regulate on an ongoing basis, or as extensively and as minutely as is suggested by the Warden in her affidavit, the behaviour of the Respondent and of the Applicant’s personnel.

The Court already acknowledged above that the context which exists at the SHU, and which constantly evolves, imposes restrictions which must be reconciled, but only so far as is possible, with the Orders. This said, some of the special privileges which the Orders conferred on the Respondent, and which were meant to bring the proceedings forward towards a hearing of the appeals on their merit, must not be made subject to the full and unrestricted discretion of the Applicant’s personnel.

In addressing the situation now faced by the Applicant and the Respondent, the Court takes into consideration the representations of counsel for the Director of criminal and penal prosecutions. She stated that all evidence previously disclosed to the Respondent and the entire record of the case in both of the Respondent’s appeals are contained in a set of two CDs, copies of which were remitted to both the Respondent and the amicus curiae pursuant to paragraph [32] and [33] of the 2017 Order.

FOR THESE REASONS, THE COURT: [ 18 ] GRANTS the application, in part; [ 19 ] ORDERS the Applicant to allow the amicus curiae , before December 31 st , 2018, to inspect the content of the boxes of personal property belonging to the Respondent Erich Chemama and which are kept in storage by the Applicant, but only insofar as the Respondent consents in writing to such inspection on or before December 7 th , 2018; [ 20 ] RESCINDS sub-paragraph [7] iv) of the 2016 Order and paragraph [34] of the 2017 Order; [ 21 ] ORDERS the Applicant to supply the Respondent Erich Chemama until June 30 th , 2019 with a fully functional lap-top computer (unconnected to the internet) equipped with an internal and an external hard disk, to be retained at all times by the Respondent in his cell, as well as a USB stick, it being understood that any malfunction or breakdown of this equipment will be deemed the sole responsibility of the Respondent and that the Applicant will be under no obligation to repair or replace this equipment, or any part thereof, in the event of such malfunction of breakdown; [ 22 ] ORDERS the Applicant to provide to the Respondent Erich Chemama a copy on his hard disk of all the CDs provided to him by the DCPP pursuant to paragraphs [32] and [33] of the 2017 Order, containing the evidence previously disclosed and Schedules I, II and III in the four appeal files; [ 23 ] ORDERS the Applicant, twice a week and upon a request in writing by the Respondent Erich Chemama, to allow the Respondent to have access to a compatible printer and to print any material stored on the USB stick referred to in paragraph [21] at his cost of $0.10 per page which cost includes ink; [ 24 ] ORDERS the Respondent Erich Chemama to provide the amicus curiae before February 1 st , 2019, with four consolidated notices of appeal not exceeding twenty pages each setting out in a single document of all his grounds of appeal for each of the four appeals; [ 25 ] ORDERS the Respondent Erich Chemama to file with the Court before February 1 st , 2019 the consolidated notice of appeal referred to in paragraph [24]; [ 26 ] ORDERS the Respondent Erich Chemama to file his factums with the Court before July 1st, 2019; [ 27 ] ORDERS the amicus curiae to file his factum with the Court before July 1st, 2019, whether or not Respondent Erich Chemama has complied with the Order set out in paragraph [24].

YVES-MARIE MORISSETTE, J.A. ROBERT M. MAINVILLE, J.A. MARIE-JOSÉE HOGUE, J.A. Mtre Stéphane Arcelin JUSTICE CANADA, DIRECTION DU DROIT RÈGLEMENTAIRE For the Applicant Erich Chemama Absent Mtre Marianna Ferraro DIRECTEUR DES POURSUITES CRIMINELLES ET PÉNALES For the impleaded party Mtre Paul Skolnik PAUL SKOLNIK, AVOCAT Amicus Curiae Date of hearing: November 20, 2018