2018 QCCA 1491, 2018 QCCA 1491

Chemama c. R. 2018 QCCA 1491 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005357-130 ; 500-10-005444-136; 500-10-005556-145; 500-10-006208-167 (500-01-049364-109; 500-01-049364-109; 500-01-048577-107) DATE: July 13, 2018 CORAM: THE HONOURABLE MARIE-JOSÉE HOGUE, J.A. PATRICK HEALY, J.A. CLAUDINE ROY, J.A. ERICH CHEMAMA PETITIONER — Accused v.

HER MAJESTY THE QUEEN RESPONDENT — Prosecutrix and ATTORNEY GENERAL OF CANADA DIRECTOR OF REGIONAL RECEPTION CENTER, SAINTE-ANNE-DES-PLAINES, QUEBEC DIRECTEUR DES POURSUITES CRIMINELLES ET PÉNALES ATTORNEY GENERAL OF QUEBEC IMPLEADED PARTIES and PAUL SKOLNIK AMICUS CURIAE JUDGMENT [ 1 ] The petitioner seeks the appointment of counsel – specifically Mr. Daniel Brodsky of Toronto – under two provisions of the Criminal Code : s. 672.24 and s. 684 .

The first requires the appointment of counsel where “the court has reasonable grounds to believe that an accused is unfit to stand trial.” The second grants the court of appeal a discretion to assign counsel if it is satisfied that it is in the interests of justice to do so. [ 2 ] The first provision is not applicable in this Court for two reasons. First, there is no evidence that the accused is unfit to stand trial. Second, this provision applies in a criminal court of first instance and not in a court of appeal. [ 3 ]

Section 684 does not allow appellant to nominate counsel of choice and Mr. Brodsky has refused to this date to represent the petitioner at the rates applicable in Quebec. This Court has already ordered, for its benefit, the assistance of an amicus curiae ( 2014 QCCA 1269 ) and Mtre Paul Skolnik remains in four pending appeals. In that earlier judgment the Court refused to make an order for counsel to represent the petitioner. [ 4 ] The petitioner was formally denied legal aid on 25 May 2018. There is no other new information that is relevant evidence.

In particular, there is no new medical evidence before the Court. The letter from a psychologist, Mr. Ed Blackstock, is insufficient as medical evidence. Moreover, dated 24 April 2017, the letter states that the most recent comprehensive assessment conducted of the petitioner by him occurred in November 2009. [ 5 ] The Court should dismiss the motion unless the petitioner can demonstrate that it is now in the interests of justice for present counsel to be appointed.

The jurisprudence on this point requires a determination whether the merits of the appeal are “arguable.” [1] This is less demanding than a test requiring “a reasonable chance of success” but there is nothing in the material before the Court on this motion that addresses this point.

Where the appointment of counsel under s. 684 has previously been refused, the petitioner cannot make this demonstration without new material. [2] The only new information before the Court is the refusal of legal aid on 25 May 2018, and this is insufficient as new evidence to justify a fresh motion under s. 684. [ 6 ] The petitioner’s pending appeals identify The Queen in right of Quebec as the respondent. Accordingly, there is no basis on which the present motion can succeed against The Queen in right of Canada.

FOR THESE REASONS, THE COURT: [ 7 ] DISMISSES the motion. MARIE-JOSÉE HOGUE, J.A. PATRICK HEALY, J.A. CLAUDINE ROY, J.A. Erich Chemama In person Mtre Marianna Ferraro DIRECTEUR DES POURSUITES CRIMINELLES ET PÉNALES For Her Majesty the Queen and Directeur des poursuites criminelles et pénales Mtre Stéphane Arcelin JUSTICE CANADA, DIRECTION DU DROIT RÈGLEMENTAIRE For Attorney General of Canada and Director of Regional Reception Center, Sainte-Anne-des- Plaines, Québec Mtre Julien Bernard BERNARD, ROY, MINISTÈRE DE LA JUSTICE (DGAJLAJ) For the Attorney General of Quebec Mtre Paul Skolnik PAUL SKOLNIK, AVOCAT The Amicus Curiae Date of hearing: July 10, 2018