2021 QCCA 1158, 2021 QCCA 1158

Chemama c. R. 2021 QCCA 1158 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, 500-01-048577-107) DATE: July 14, 2021 CORAM: THE HONOURABLE DOMINIQUE BÉLANGER, J.A. STÉPHANE SANSFAÇON, J.A. PETER KALICHMAN, J.A. ERICH CHEMAMA APPELLANT v.

COMMISSIONER OF CORRECTIONAL SERVICES OF CANADA DIRECTOR OF THE REGIONAL RECEPTION CENTER HER MAJESTY THE QUEEN RESPONDENTS and AMICUS CURIAE IMPLEADED PARTY JUDGMENT [ 1 ] Since 2016, Appellant Chemama, or the amicus curiae on his behalf, has filed different applications in order to be permitted to have in his possession a computer, cd-roms and external hard disk as well as other legal materials, in order to prepare his appeals. [ 2 ] In this regard, the Court rendered several orders, including those of September 29, 2016 [1] , October 27, 2017 [2] , November 26, 2018 [3] and April 8, 2019 [4] . [ 3 ] More than 8 years after his convictions and 5 years after he was declared a dangerous offender, the Appellant has not filed his factums and his four appeals are not ready to proceed. [ 4 ] The amicus curiae now requests the Court to order: 1.

The Respondents provide the Applicant with a fully functional lap-top computer, an external hard disk drive to save his material necessary for his appeals, a USB stick and Schedules I, II, and III for case numbers: #500-10-005556-145 #500-10-006208-167 #500-10-005357-130 #500-10-005444-136 2. That the Respondents be ordered to provide the lap-top computer and items mentioned in the previous paragraph, to the Applicant for a period terminating at a date after the termination of the pleadings of the appeals. 3.

That the Respondents be ordered to send the lap-top computer, external hard disk drive, USB stick and Schedules I, II and III to a

different institution, in the event that the Applicant is transferred from the Regional Reception Centre at Ste-Anne-des-Plaines Quebec to a different institution in Quebec or outside the Province of Quebec. 4. That the Applicant be given reasonable access to a printer in order to be able to print material necessary to advance his appeals. 5. That the Applicant be permitted to purchase legal texts, for the purposes of doing legal research to advance his appeals. 6.

That the Appellant be given reasonable access to communicate with counsel, including the Amicus Curiae. [ 5 ] According to the amicus curiae’s motion, since February 19, 2019, Appellant has not had the materials necessary to complete the record. That said, his motion [5] was filed more than two years later, even though the amicus curiae and counsel for Justice Canada tried to work out a solution in the fall of 2020. [ 6 ] In response to the motion, Correctional Services of Canada (CSC) offers to provide the following: 1. Laptop computer and equipment a.

A functional laptop computer (unconnected to the Internet) equipped with an internal hard drive will be provided to Mr. Chemama. b. CSC will transfer on the hard drives the information provided by the DPCP through CDs and/or DVDs representing 57 volumes of Schedules I , Il and Ill of files 500-10-005556-145; 500-10-006208-167; 500-10-005357-130 and 500-10-005444-136, including and video evidence (hereafter his "Legal Material"). c. The said laptop will be provided in his cell, for which he will have the responsibility of maintaining the integrity of the equipment.

The laptop will also be equipped with the proper software to review video files . Should he willfully or recklessly damage or destroy this CSC laptop and equipment, he will be charged with a disciplinary offence and subject to an order to make restitution, a fine, and/or other disciplinary sanctions. 2. Printing of electronic documents a. Twice a week (during regular workdays), upon request, Mr. Chemama will be able to print electronic documents by way of the following procedure: i. Submit a written request detailing the specific · documents (and under which folder) that Mr.

Chemama wish to be printed, accompanied by an inmate disbursement fund. A charge of 0.10$ per copy applies. ii. Following receipt of the request, and verification of the availability of Mr. Chemama ' s funds in his account, the Unit Correctional Manager (hereafter the "UCM") will attend his cell the following workday to provide him with a USB stick so that he requests can be processed . He will then proceed to the transfer of the files noted in his request onto the USB stick immediately and return the USB stick to the UCM . iii. Once the copies are made, the UCM will return them to Mr.

Chemama and he will then be asked to delete the clear the USB Stick, deleting all legal material content, and return the key immediately to the UCM. 3. Access to legal material in storage and personal effects a. Mr . Chemama will continue to have access, a maximum of twice (2) per week, following a written request for hard copies of his Legal Material that will be stored in his name should you , Mr. Skolnik, provide the said volumes to him . b.

Furthermore, he will continue to be authorized to bring in his cell a portion of the Legal Material, in compliance with Commissioner's Directive CD 345 (Fire Safety) and related policies . [ 7 ] Despite the extraordinary delays, the Court is prepared to give the Appellant a last chance to file his factums and will thus order CSC to give him access to most of what he requests, including a laptop computer. [ 8 ] However, in granting the request, the Court is mindful of its order of November 26, 2018 which describes the behaviour of Appellant: [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 29th, 2016 Order…

b) place CSC in a situation where the integral respect of the September 29th, 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 15th, 2018, is from the Warden of the SHU. It contains the following passages:

Since August 8th, 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. 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. 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. The Respondent is also often placed in suicidal protocol, usually in accordance with his expressed preferences.

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 29th, 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. (…) [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. [ 9 ] For those exact same reasons, the offer made by CSC is appropriate. [ 10 ] It is essential at this point in time that the Court clearly establish deadlines in order to insure that the appeals can be heard in shortest possible delay. [ 11 ] Firstly, on November 26, 2018, the Court ordered the Appellant and the amicus curiae to file consolidated notices of appeal.

There is no doubt that consolidated notices of appeal would have greatly facilitated the Court's understanding of the Appellant's grounds of appeal. However, it has been almost three years since this order and despite the considerable efforts of the amicus curiae to comply, it has become apparent that it is not practical to continue with this effort. In this regard, the Court notes that the Appellant's notices of appeals, many of which are handwritten, are hundreds of pages in length and often indecipherable.

For this reason, the Court will rescind that order. [ 12 ] Secondly, given the possibility that the Appellant will fail to respect the deadline to file his factums or that they will not meet the Court’s expectations, it is important that at least one perspective other than that of Respondent be provided. Accordingly the Court requested that the amicus curiae produce a factum in each of the four files, providing his opinion on any grounds of appeal that, in his view , are serious and merit the attention of the Court.

The amicus curiae agreed to this request. [ 13 ] Thirdly, according to the amicus curiae , there remain a number of days or partial days of trial that have not yet been transcribed. The Court will enjoin the amicus curiae to take all necessary steps to ensure that these be filed in Court by October, 31 2021, it being understood that this delay does not prevent the parties from advancing the work on their factums. [ 14 ] Fourthly, deadlines for the filing of factums will be established as follows:

a) The Appellant: June 15, 2022 ;

b) Amicus curiae : January 31, 2022 for files 500-10-005556-145 and 500-10-006208-167 and June 15, 2022 for files 500-10- 005357-130 and 500-10-005444-136;

c) Respondent (Crown): May 31, 2022 for files 500-10-005556-145 and 500-10-006208-167 and October 31, 2022 for files 500-10- 005357-130 and 500-10-005444-136. [ 15 ] In regards to file 500-10-005556-145, each party (Appellant, amicus curiae and the Crown) will be entitled to 45 pages for their argument. FOR THESE REASONS, THE COURT: [ 16 ] GRANTS in part the application;

[ 17 ] ORDERS Correctional Services Canada to comply with their offer to provide the following to the Appellant, until the date of hearing of the appeals: 1) A functional laptop computer (unconnected to the Internet) equipped with an internal hard drive on which CSC will transfer the information provided by the DPCP through CDs and/or DVDs representing 57 volumes of Schedules I, Il and Ill of files 500-10-005556- 145; 500-10-006208-167; 500-10-005357-130 and 500-10-005444-136, including and video evidence (hereafter his "Legal Material").

The laptop will be provided in Appellant’s cell, for which he will have the responsibility of maintaining the integrity of the equipment. The laptop will also be equipped with the proper software to review video files . 2) Twice a week (during regular workdays), upon request, Appellant will be able to print electronic documents by way of the following procedure: - Submit a written request detailing the specific · documents (and under which folder) accompanied by an inmate disbursement fund.

A charge of 0.10$ per copy applies. - Following receipt of the request, and verification of the availability of Appelant ' s funds in his account, the Unit Correctional Manager (hereafter the "UCM") will attend his cell the following workday to provide him with a USB stick so that he requests can be processed .

He will then proceed to the transfer of the files noted in his request onto the USB stick immediately and return the USB stick to the UCM . - Once the copies are made, the UCM will return them to Appelant and he will then be asked to delete the clear the USB Stick, deleting all legal material content, and return the key immediately to the UCM. 3) Appellant will continue to have access, a maximum of twice (2) per week, following a written request for hard copies of his Legal Material that will be stored in his name should the amicus curiae provide the said volumes to him .

Appelant will continue to be authorized to bring in his cell a portion of the Legal Material, in compliance with Commissioner's Directive CD 345 (Fire Safety) and related policies . [ 18 ] DECLARES that the Correctional Services Canada will be under no obligation to repair or replace this equipment, or any part thereof, in the event of malfunction of breakdown caused by the Appellant; [ 19 ] RESCINDS paragraphs 24 and 25 of the November 26, 2018 Order; [ 20 ] ENJOINS the amicus curiae to take all necessary steps to ensure that the transcripts are completed and filed them in Court by October 31, 2021; [ 21 ] FIXES deadlines for the filing of factums as follows:

a) The Appellant: June 15, 2022 ;

b) Amicus curiae : January 31, 2022 for files 500-10-005556-145 and 500-10-006208-167 and June 15, 2022 for files 500-10-005357- 130 and 500-10-005444-136;

c) Respondent (Crown): May 31, 2022 for files 500-10-005556-145 and 500-10-006208-167 and October 31, 2022 for files 500-10- 005357-130 and 500-10-005444-136. [ 22 ] AUTHORIZES each party (Appellant, amicus curiae and the Crown), in regards to appeal 500-10-005556-145, to file arguments of up to 45 pages; [ 23 ] REQUESTS that the Clerk (Master of the roll) issue a declaration of readiness upon reception of the Respondent’s Factums in files 500-10-005357-130 and 500-10-005444-136 and DECLARES that the two appeals can proceed without Appellant’s factum; [ 24 ] REQUEST that the Clerk (Master of the roll) issue a declaration of readiness upon reception of the Respondent’s Factums in files 500-10-005556-145 and 500-10-006208-167 and DECLARES that the two appeals can proceed without Appellant’s factums.

DOMINIQUE BÉLANGER, J.A. STÉPHANE SANSFAÇON, J.A. PETER KALICHMAN, J.A. Mr. Erich Chemama In Person

Mtre Stéphane Arcelin Mtre Joshua Wilder DEPARTMENT OF JUSTICE CANADA For Commissioner of correctional services of Canada and Director of the regional reception center Mtre Marie-Ève Mayer DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For Her Majesty the Queen Mtre Paul Skolnik PAUL SKOLNIK, AVOCAT Mtre Jessy Bourassa Héroux BATTISTA TURCOT ISRAEL The amicus curiae Date of hearing: July 6, 2021