2019 QCCA 343, 2019 QCCA 343

Kanya v. R. 2019 QCCA 343 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-006806-184 (500-01-128044-150) DATE: MARCH 1, 2019 CORAM : THE HONOURABLE MANON SAVARD, J.A. CLAUDINE ROY, J.A. GENEVIÈVE COTNAM, J.A. KENNEDY LOFTY KANYA APPELLANT / Accused v. HER MAJESTY THE QUEEN RESPONDENT / Prosecutor JUDGMENT [UNOFFICIAL TRANSLATION BY CENTRE DE TRADUCTION ET DE TERMINOLOGIE JURIDIQUES]

[ 1 ] This is an application by the Crown [TRANSLATION] “for an order that the complete transcripts of the trial record be provided”. In response, the appellant submitted an application [TRANSLATION] “for an award of costs incurred as a result of the respondent’s application to force the appellant to provide the complete trial record”. [ 2 ] For the reasons set out by Savard, J.A. (Roy and Cotnam, JJ.A. concurring), THE COURT : [ 3 ] DISMISSES the Crown’s application; [ 4 ] DISMISSES the appellant’s application. MANON SAVARD, J.A. CLAUDINE ROY, J.A. GENEVIÈVE COTNAM, J.A. Jean-Marc J.D.

Tremblay Monterosso Giroux Leblanc Avocats For the appellant Maude Payette Director of Criminal and Penal Proceedings For the respondent Date of hearing: January 14, 2019 REASONS OF MADAM JUSTICE SAVARD [ 5 ] On September 11, 2018, upon the appellant’s application, a judge of the Court authorized the appeal from the judgment of the Court of Quebec finding the appellant guilty of extortion. One week later, the clerk of the court of first instance provided the appellant with notice under

section 30 of the Rules of the Court of Appeal of Quebec in Criminal Matters (SI/2006-142 ) ( “ Rules ” ) and the form that must be completed to obtain a transcript of the trial record. A copy of the notice and of the form were provided to the Crown. The appellant did not respond to this notice. [ 6 ] In December 2018, in the days prior to submitting his factum to the clerk of the Court, the appellant informed the Crown that

Schedule 3 of the factum would not include the complete transcript of the testimony heard over the 10 days of the trial. Since the central argument of his appeal is based on the trial judge’s

interpretation of various text messages, the appellant took the position that the testimony of witnesses who were not examined or cross-examined on the contents of the messages was not necessary in considering the issues raised by his appeal. The appellant provided the names of those witnesses for whom he had obtained a transcript of their testimony from a private stenographer, and suggested that the Crown obtain any additional transcripts that it might wish to include in its own factum, if it considered it necessary.

[7] The Crown is of the opinion that this procedure is contrary to subsection 682(2) of the Criminal Code (“Cr.C.”) and theRules. The Crown argues that the whole of the evidence is necessary in considering the matters raised by the appeal, since the judgeindicated, on more than one occasion in his judgment, that he was interpreting the contents of the text messages in dispute “in the contextof the evidence as a whole”. The Crown asks that the appellant be ordered to obtain the complete transcript of the trial record, asprovided under

section 30 of the Rules, and to make the transcript available to the Crown free of charge so that it may complete its ownfactum.

The Crown also asks that the appeal deadlines be suspended until such time as it obtains access to the transcript. [8] In response to this application, which he describes as “frivolous and unreasonable”, the appellant asks that the Crown beordered to pay the extrajudicial costs that he had to incur in order to contest the Crown’s application. [9] In my opinion, both applications must fail. *** [10] Let me begin by stating that the rules that apply in this case are those that were in effect when the application for leave toappeal was filed in September 2018.

The new Rules of the Court of Appeal of Quebec in Criminal Matters (SI/2018-96), which came intoforce on January 1, 2019, do not apply in this case given the lack of consent by the parties in this regard (s. 82). As agreed before thecourt hearing, I will not discuss these new provisions here, in order to avoid postponing the hearing as indicated by the Crown. [11] The Crown argues that the appellant (whether the accused or the Crown) is responsible for obtaining the complete transcriptof the trial record and is also required to provide a copy thereof to the respondent free of charge.

In the Crow’s view, the appellant maynot unilaterally decide to have only a portion of the proceedings transcribed without the respondent’s consent. In this case, since theCrown did not consent to a partial transcript, the general rule must be applied. In the Crown’s view, subsection 682(2) of the CriminalCode, read in conjunction with

section 30 of the Rules, leads to such a conclusion. [12] In my opinion, these provisions do not have the scope that Crown attributes to them. [13] No one disputes the fact that the appellant is required to include in his factum the exhibits and depositions that are necessaryfor the review of the issues raised by his appeal, without which his appeal might fail (Mastromonico v. R. (1926), 41 B.R. 288; Kin Rifkinv. R., 40 B.R. 537 (single judge); R. v. L’Espinay, 2008 BCCA 20).

The trial court must therefore take the necessary steps to ensure thatthe transcript of the trial proceedings is kept, so that a party who is dissatisfied with the judgment may fully exercise its right ofappeal.[1] [14] In R. v. Hayes, (SCC), [1989] 1 S.C.R. 44, at p. 52, Sopinka, J., dissenting in the result but not on this point,indicated that this requirement is set out in subsection 682(2) of the Criminal Code: Clearly s. 609(2) [now s. 682(2)] establishes a mandatory requirement that a record of trial proceedings be kept. [15] This provision states as follows: 682 682

(2) [ Transcription de la preuve ] Une copie ou transcription :

a) de la preuve recueillie au procès;

b) de l’exposé du juge au jury ainsi que des oppositions soulevées à son encontre;

c) des motifs du jugement, s’il en est;

d) des exposés et des plaidoiries du poursuivant et de l’accusé, si un motif d’appel repose sur l’un ou l’autre de ceux-ci, est fournie à la cour d’appel, sauf dans la mesure où dispense en est accordée par ordonnance d’un juge de ce tribunal. (2) [ Transcript of evidence ] A copy or transcript of (

a) the evidence taken at the trial, (

b) any charge to the jury and any objections that were made to a charge to the jury, (

c) the reasons for judgment, if any, and (

d) the addresses of the prosecutor and the accused, if a ground for the appeal is based on either of the addresses, shall be furnished to the court of appeal, except in so far as it is dispensed with by order of a judge of that court. [ 16 ] The fact that the appellant can obtain a transcript of the trial proceedings does not mean, however, that he is required to obtain the complete transcript thereof for the purposes of the appeal. Moreover, subsection 682(4) of the Criminal Code provides that a party may obtain extracts of the proceedings on payment of any charges fixed by the rules of court : 682 (4) [Copies aux parties intéressées] Une

partie à l’appel a le droit de recevoir, sur paiement des frais fixés par les règles de cour, une copie ou une transcription de tout élément préparé en vertu des paragraphes (1) et (2). 682 (4) [Copies to interested parties] A party to an appeal is entitled to receive, on payment of any charges that are fixed by rules of court, a copy or transcript of any material that is prepared under subsections (1) and (2). [Emphasis added.] [ 17 ] The Crown recognizes that not all appeals require a complete transcript of the trial proceedings.

Depending on the grounds of appeal raised by the appellant, certain extracts may be sufficient to enable the Court to consider the issues. Moreover, subsection 70.3(1) of the Rules provides for this possibility, by describing the contents of

Schedule 3 of the appellant’s factum: 70.3 (1) [Contenu] [L’annexe 3] comprend les seules pièces et dépositions ou les extraits de pièces et de dépositions nécessaires à l’examen de toutes les questions en litige. 70.3 (1) [Contents] [Schedule 3] shall include only those exhibits and depositions or extracts therefrom that are necessary for the consideration of all the issues in dispute. [ 18 ] The Crown, however, argues that if the appellant fails to include all the elements that are necessary for the consideration of

the grounds of appeal, it will only be able to include the missing portions of the transcript in its own factum, as provided under subsection 70.3(3) of the Rules , if the appellant previously obtained the complete transcript of the proceedings and made it available to the Crown: 70.3 (3) [Pour la

partie intimée] La

partie intimée ne retient dans les annexes de son mémoire que les éléments nécessaires à l’examen des questions en litige et qui n’ont pas été retenus par la

partie appelante . 70.3 (3) [For the respondent] The schedules to the respondent’s factum shall include only those elements that are necessary for the consideration of the issues in dispute and that were not included by the appellant. [ 19 ] The Crown argues that sections 30 and 33 of the Rules set out the appellant’s obligation to obtain a complete transcript of the record, at his own expense, unless the parties jointly waive this requirement or agree to a joint statement of the facts.

These sections provide as follows: 30 (1) [ Transcription du dossier de première instance] Après consultation avec les parties ou leurs avocats, sauf renonciation des parties ou de leurs avocats ou l’accord de ceux-ci sur un exposé conjoint des faits nécessaires à la solution des questions en litige, le greffier de première instance fait les démarches nécessaires pour obtenir aussitôt que possible la transcription complète du dossier.

(2) À moins que l’appel ne porte sur ces questions, et sauf ordonnance contraire d’un juge ou consentement des parties, sont omis de la transcription : 30 (1) [ Transcript of trial proceedings] After consulting with the parties or their counsel, the clerk of the court of first instance shall take all necessary steps to obtain, as soon as possible, the complete transcript of the proceedings, unless the parties or their counsel renounce or agree to a joint statement of the facts necessary to the resolution of the issues in dispute.

(2) Unless the appeal addresses those questions or unless otherwise ordered by a Judge or agreed by the parties, the following shall be omitted from the transcript:

a) la procédure relative au choix du jury;

b) l’exposé introductif du juge de première instance;

c) les exposés introductifs et finals des avocats;

d) les éléments de preuve déposés hors la présence du jury et les observations des avocats faites hors la présence du jury sauf :

i) les observations relatives à la teneur proposée des directives du juge au jury de même que la décision et les motifs du juge de première instance, ii) les objections relatives aux directives de même que la décision et les motifs du juge de première instance, iii) les observations relatives aux questions soumises par le jury de même que la décision et les motifs du juge de première instance;

e) les oppositions à l’admissibilité d’un élément de preuve, sauf à noter l’opposition faite, la décision du juge et, le cas échéant, ses motifs. (

a) proceedings regarding jury selection; (

b) the opening address of the trial judge; (

c) the opening and closing addresses of counsel; (

d) evidence adduced in the absence of the jury and submissions of counsel in the absence of the jury, with the exception of (

i) submissions regarding the proposed content of the judge’s jury instructions, the trial judge’s determination thereon and reasons, (ii) objections regarding the jury instructions, the trial judge’s determination thereon and reasons, and (iii) submissions regarding questions from the jury, the trial judge’s determination thereon and reasons; and (

e) objections to the admissibility of evidence, except a notation of the objection, the trial judge’s adjudication and, if they are available, the reasons for the judgment. 33 [Paiement des frais] Quand la transcription ou la traduction comporte des frais, le greffier du tribunal de première instance peut en exiger le paiement à l’avance et, en tout état de cause, la

partie appelante n’y a pas droit tant que les frais n’ont pas été acquittés . 33 [Payment of costs] If the preparation of a transcript incurs costs, the clerk of the court of first instance may require payment in advance. The appellant shall not be entitled to the transcript at any time during the course of the proceedings until those costs have been paid. [ 20 ] The Rules must be interpreted on the basis of the objective sought by the Court when they were adopted. I would point out that sections 482 and 482.1 of the Criminal Code empower appellate courts to “make rules to govern appeal proceedings” ( Duhamel v.

R. , 2006 QCCA 1081 , para. [13] ). These rules, which do not create substantive rights, are limited to matters of process, proceeding and administration ( Duhamel v. R. , supra , para. [12] ). They are, therefore, designed to ensure that the appeal concerning the parties, and all aspects thereof, are conducted properly, fairly, efficiently and diligently.

[21] The Court intended that the applicable rules in criminal matters would reflect the rules applicable in civil matters, as much aspossible. Therefore, their

interpretation, without being identical, should lead to a similar result, unless, of course, the provisionspertaining to a same topic are clearly different. Moreover,

section 97 of the Rules states that the provisions of the Code of CivilProcedure apply to criminal appeals, unless they are incompatible with the Criminal Code or the Rules. [22] Based on these observations, I cannot agree with the Crown’s literal

interpretation of

section 30 of the Rules. [23] Under this provision, the clerk of the court of first instance is required to “take all necessary steps/faire les démarchesnécessaires” to obtain the complete transcript of the proceedings, “[a]fter consulting with the parties or their counsel”. The clerk thusresponds to the request of the parties, who, after consultation, may obtain the complete transcript of the proceedings. This

section alsoprovides that the parties may choose not to request the transcript of certain parts of the proceedings. That will be the case when thoseparts are not necessary for the resolution of the issues on appeal or if the parties agree to a joint statement of the facts. [24] The wording “unless the parties or their counsel renounce/sauf renonciation des parties ou de leurs avocats”, however, doesnot mean that this renunciation must be joint. There is no doubt that, in this regard, collaboration is required.

But if the respondent insistson obtaining the transcript of evidence that the appellant does not consider necessary for the purposes of his appeal, nothing in the Rulesrequires the appellant to obtain the transcript of this evidence at his own expense. On the other hand, nothing prevents the respondentfrom obtaining the transcript at his own expense, if he considers it necessary. [25] It is true that

section 33 of the Rules does not mention the possibility that the respondent could be required to pay the cost ofthe transcript. However, this should not be seen as imposing a burden on the appellant. Rather, this provision seeks to reflect the usualway of proceeding.

The Rules have been in effect since 2006, but this is apparently the first time that parties have been confronted withthe situation raised by this application. [26] My reading of sections 30 and 33 of the Rules leads to a result that is similar to that which would apply under the rules in civilmatters, where each party pays the cost of transcribing the exhibits and depositions submitted in support of their respective factums(subject to an award of legal costs, a concept that does not exist in criminal matters).

It is also consistent with subsection 682(4) of theCriminal Code (reproduced in paragraph [16], supra), which provides that “[a] party to an appeal/une

partie à l’appel” is entitled toreceive the transcript of the evidence upon payment of the required charges. This right is not limited solely to the appellant. [27] Accepting the Crown’s argument could result in defendants[2] being deprived of their right of appeal if they were financiallyunable to pay the cost of transcribing evidence that they considered unnecessary for resolving the dispute, or again, could result ingovernment having to incur needless costs where a legal aid certificate is issued.

In my view, this argument is irreconcilable with theCourt’s intent when the Rules were adopted, i.e. that appeals should not only be conducted diligently, but also fairly. [28] I am also taking into account the fact that the Crown plays a quasi-judicial role in the conduct of criminal cases, which isprimarily aimed at ensuring that the most complete justice is rendered: see Boucher v. R., (SCC), [1955] S.C.R. 16. It istrue that, as a respondent, the Crown’s situation differs from that of a like party in civil matters.

The fact that a portion of the transcriptsdeemed useful by the Crown is missing puts the Crown, as respondent, in an awkward position, given this quasi-judicial role. TheCrown might be ill-at-ease, and perhaps rightly so, in simply claiming before the Court that the appellant failed to provide a significantportion of the transcripts, without providing it itself. If and when the Crown adopts this position, the circumstances in their entiretywould no doubt enable it to show that the most complete justice may nonetheless be rendered using a partial transcript.

If that were notthe case, the Crown could, in fulfilling its role, submit the additional extracts required. [29] In this case, there is no doubt that the appellant should have consulted the Crown upon receipt of the form provided by theclerk of the court of first instance under

section 30 of the Rules, in order to enable the parties to diligently identify the necessary evidencefor resolving the appeal. The appellant’s failure to take timely action has led to a pointless delay in the preparation of the respondent’sappeal factum. [30] That being said, the fact remains that the Crown cannot require the appellant to obtain the transcript of the entire trial at hisown expense. It must decide whether it wishes nonetheless to obtain the transcript at its own expense, in its quasi-judicial capacity.Otherwise, if the partial transcript submitted by the appellant in

Schedule 3 of his factum should prove insufficient, particularly in lightof the trial judge’s remarks, the appellant might be criticized for his failure by the Court, which would render the appropriate decision. Itherefore propose that the Crown’s application be dismissed.

[31] The same applies to the appellant’s application for payment of the extrajudicial costs that he incurred in dealing with theCrown’s request, which is unfounded under the circumstances. First of all, even assuming that the Court may impose such costs, thecollaboration that is ethically expected between the parties and sought by the Rules does not appear to have taken place here. Theappellant’s conduct seems to have been a contributing factor in this regard.

Moreover, although it is unfounded, the Crown’s applicationstill does not, as such, constitute abusive conduct as defined in the case law (Quebec (Director of Criminal and Penal Proceedings) v.Jodoin, 2017 SCC 26 , [2017] 1 S.C.R. 478, para. [29]). *** [32] In conclusion, for the above reasons, I propose that both the Crown’s and the appellant’s applications be dismissed. MANON SAVARD, J.A.