R. v. Oland, 2021 QCCA 596

Chemama c. R. 2021 QCCA 596 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005556-145 , 500-10-006208-167 (500-01-048577-107) DATE: April 13, 2021 BEFORE THE HONOURABLE GUY COURNOYER, J.A. ERICH CHEMAMA APPLICANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT [ 1 ] On November 11, 2013, a jury convicted Mr.

Chemama of two separate incidents of sexual assault, forcible confinement and uttering death threats against O.M. and A.O., both female trade sex workers at the time of the events. [ 2 ] He was declared a dangerous offender on July 8, 2016 [1] . [ 3 ] More than 7 years after his convictions and almost 5 years after he was declared a dangerous offender, his appeal has not been perfected. [ 4 ] An amicus curiae has been appointed by the Court in this file. The Court has designated Mr.

Chemema a vexatious litigant. [2] [ 5 ] The Applicant has raised numerous grounds of appeal but given the focussed nature of the grounds relied upon for the bail application, it is not necessary to document them in detail. [ 6 ] Now represented by Counsel, Mr Chemama relies on two grounds to obtain bail pending the appeal: 1) a juror was improperly discharged pursuant to s. 644 of the Criminal Code ; 2) the juror was discharged in his absence contrary to s. 650 of the Criminal Code . Improper juror’s discharge [ 7 ] Mr.

Chemama asserts that the failure to conduct an inquiry prior to the juror’s dismissal created an appearance of unfairness in the conduct of the trial, and wrongly deprived him of the right to be tried before a jury of 12 members. Right to be present [ 8 ] Mr. Chemama alleges that he was not able to fully participate in the inquiry and was not invited to make submissions following the question of the juror.

From the record, he makes the argument that it is clear that he did not participate and had no substantial knowledge of the dismissal of the juror. [ 9 ] Release pending the determination of an appeal may be granted if the appellant establishes that 1) the appeal is not frivolous; 2) he will surrender himself into custody in accordance with the terms of the order; and 3) his detention is not necessary in the public interest. [ 10 ] These criteria have been interpreted by the Supreme Court of Canada in R. v.

Oland , 2017 SCC 17 , [2017] 1 S.C.R. 250. [ 11 ] I am prepared to assume for the purpose of this bail application that Mr. Chemama has satisfied the first two criteria. [ 12 ] Yet, even if I factor in the COVID-19 concerns stemming from the fact that Mr. Chemama is vulnerable to the virus because he is asthmatic and I assume the sufficiency of the release plan presented, Mr. Chemema’s detention is necessary in the public interest. [ 13 ] The following excerpts from the dangerous offender designation judgment by Buffoni J. explains why Mr.

Chemama motion for bail must be denied: [3] [59] The prosecution produced testimonial and documentary evidence, including the expert report and the testimony of a forensic psychologist, Ms. Tiziana Costi, M.Ps. Ms. Costi is the only professional having supplied the Court with an expert opinion on the core issue. The Court also heard services director Yves Caplette. Both were extensively cross-examined by Mr. Chemama.

[60] The prosecution having chosen not to rely on the impact of the predicate offences on the victims or the community, no evidence was adduced in that respect and no victim or community impact statements were filed. [61] Mr. Chemama testified against the application but he did not contradict the material underlying facts detailed in the Costi report and the other evidence adduced by the prosecution. [62] The Costi report (R-2), which was drafted in spite of Mr. Chemama’s refusal to cooperate with the psychologist, is based on the various files listed at the beginning of the report. [63] Mr.

Chemama was born in France and is the eldest of three children. He emigrated in Canada in the mid-1980s. The parents now divorced have had significant marital problems. The files include allegations of violence and physical, verbal and emotional abuse by the father against the mother and the children. [64] Mr.

Chemama’s behavioural problems started when he was about 7 years old and, from the age of 12 onwards, he has an extensive criminal history which includes several occurrences of theft, concealment, aggravated assault, breaking and entering with intent, mischief, escape of lawful custody, uttering threats, obstructing a police officer, obstruction of justice, criminal harassment, breach of probation, and more particularly a conviction in 2001 for sexual assault, forcible confinement and uttering threats. [65] Since being in custody, Mr.

Chemama has been convicted of subsequent offences: obstruction of justice in relation to evidence adduced at trial in the present record, assault and uttering threats against a female correctional officer. [66] In November 2012, Mr. Chemama was declared a vexatious litigant by the Superior Court in both civil and criminal matters. [67] According to the Costi report, Mr.

Chemama “has never shown any introspection or insight, and he has never acknowledged his responsibility in the offences he is accused of, and for which he has been charged, found guilty and sentenced.” Also, he “does not acknowledge the offences: he is therefore in a constant battle to delay the consequences and delay taking responsibility” . [68] The way Mr. Chemama delayed the present proceedings in his official quest for a counter-assessment through various tactics, including with the apparent aid of his mother, as seen above, is but one illustration of this characteristic. [69] Summarizing Mr.

Chemama’s attitude from the data on file, the Costi report asserts that his file discloses “a polymorphic criminality, with numerous violent gestures, falsification of documents, pathological lying, complaints that are intended to intimidate and interfere with the judicial process, and to avoid taking responsibility for his actions, uttering threats and intimidation” . [70] He is described as “irresponsible, unreliable, as someone whose attitude is marked by refusal and opposition, extreme control over others, manipulation, hostility, active opposition, showing no respect for rules, for justice or for authority, and numerous breaches of probation” as well as “arrogant, as someone who does not follow instructions, who is aggressive, contemptuous and insistent, who argues a great deal and who uses a denial that is associated with significant narcissistic traits (…) Mr.

Chemama shows no remorse and he does not acknowledge his actions. He threatens to sue all those who go against his wishes, he sends false elements, lies, and makes false allegations, and even qualifies as [incompetent] all the lawyers afforded to him” . [71] “For Mr. Chemama, this is a power struggle with all authority or with anything that opposes his own desires” . [72] The Court has had the opportunity in the course of more than 100 hearing days to observe that the above description of Mr. Chemama’s personality and behaviour is far from exaggerated. [73] In sum, continues Ms. Costi, Mr.

Chemama presents many risk factors, “both sexual and violent, with many psychopathic traits, and we expect a poor prognosis, especially with an attention and learning disorder that would limit his treatment responsivity. Furthermore, we note that since his youth there have been many concerns regarding his sexual behaviors” . [74] Ms. Costi applied the usual psychometric instruments to assess the risk and determine whether Mr.

Chemama represents a “threat to the life, safety or physical or mental well-being of other persons” as contemplated by section 753(1)(a). [75] She noted that the results are only an estimate, since Mr. Chemama refused to meet and collaborate with her. However, on the basis of the available data, the instruments produced significantly high scores, as the following

summary shows. [76] On the PCL-R test, Mr. Chemama scored in the 99.5 th percentile of psychopathy, which indicates that 99.5% of inmates have a score lower than Mr. Chemama in terms of general dangerousness. [77] On the Static-99-R test, Mr. Chemama received a high score with a risk percentage from the 89.7 th to 94.9 th percentile. Based on this scale, the risk of a new sexual offence is 24.7% after five years and 33.4% after ten years.

With regard to risk of violent gestures, it is 33.9% after five years and 51.8% after ten years. [78] On the Stable-2007 test, many factors could not be scored due to a lack of information. However, the factors that were scored indicate that the need for supervision is high. [79] On the SORAG test, Mr. Chemama obtains a very high score: the percentage of sexual recidivism risk after seven years following release is 100%. [80] On the VRAG test concerning the risk of violent recidivism, Mr. Chemama scores 100% after seven and ten years. [81] On the SVR-20 test, Mr.

Chemama scores at a high level of risk of sexual recidivism. [82] On the HCR-20 test concerning the risk for future violence, Mr. Chemama presents all the historical factors, with the exception

of substance use. He obtains a score for all the clinical factors, with the exception of one factor relating to active symptoms of major mental illness, and all the factors of future risk. [83] As for the SAPROF checklist to assess protective factors that could minimize recidivism risk, the only elements found, besides intelligence, are factors of external control, insofar as Mr. Chemama will be subject to external controls by his incarceration. [84] The concluding part of the Costi report leaves little doubt as to the risk and threat Mr.

Chemama presents: DISCUSSION The assessment for this file points to a man who presents a high risk of recidivism, both sexual and violent recidivism equally . This is a man who presents a polymorphic criminality since his youth , and who appears to never have taken responsibility for his actions, has never really been cooperative with regard to treatment or interventions , who shows himself instead to be actively oppositional by obstructing all procedures aimed at assessment or at treatment throughout his life , and which continues in the current procedures.

The last offences for which he was arrested can be interpreted as a manifestation of extreme violence through sexual gestures, especially against women . DIAGNOSTIC IMPRESSION Though it is not possible to posit a clear diagnosis because of the lack of information and Mr. Chemama's refusal to cooperate with the assessment, it is nevertheless possible, based on the elements on file, to conclude that Mr. Chemama appears especially to present characteristics that correspond to personality disorder with significant narcissistic and antisocial psychopathic components .

The possibility of paranoid personality disorder could eventually be examined, as well as possible sadistic paraphilia. The diagnosis of attention deficit disorder with hyperactivity which is on file should also be considered. CONCLUSION The assessment for this file nevertheless allows for estimating that the risk of violent and sexual recidivism is very high, and is without sufficient protective factors to minimize risk. (…) The prognosis is very poor based on the elements currently on file. This is the reason why, in this context, we conclude that Mr.

Chemama presents the criteria to be declared a dangerous offender . [Emphasis added] C. Conclusion on the dangerous offender designation [85] Based on the whole of the evidence, including Mr.

Chemama’s personal, criminal and detention history as well as the behaviour he displayed during the predicate offences and his record of repetitive, persistent and aggressive behaviour towards other people and the justice and penal systems and all form of authority, the Court is satisfied beyond a reasonable doubt that the prosecution has conclusively established each one of the two alternate conditions defined in subsections 753(1)(a)(

i) and 753(1)(a)(ii) Cr. C. reproduced above. [ 14 ] While Mtre Hicks has presented a professional, competent and focussed argument for bail, after much consideration, I conclude that no evidence has been presented to detract from these serious findings. FOR THESE REASONS, THE UNDERSIGNED: [ 15 ] DENIES bail. GUY COURNOYER, J.A. Mtre Christopher Hicks HICKS ADAMS For the Applicant Mtre Marianna Ferraro DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the Respondent Date of hearing: March 16, 2021