2017 QCCA 1318, 2017 QCCA 1318

Echalook c. R. 2017 QCCA 1318 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006220-162 (500-01-136956-167, 500-01-136958-169, 500-01-137052-160, 500-01-137053-168) DATE: September 6, 2017 CORAM: THE HONOURABLE MANON SAVARD, J.A. GENEVIÈVE MARCOTTE, J.A. MARK SCHRAGER, J.A. TIM JACKOOSIE ECHALOOK APPLICANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] The Applicant seeks leave to appeal based on the incompetence of his lawyer under sections 675 (1)(ii) and 675

(1.1) Cr.c . Collaterally in the same motion, he seeks leave to withdraw the guilty plea, to join the various appeals and to produce new evidence. [ 2 ] The new evidence includes Applicant’s affidavit. The Crown does not object to its filing. However, counsel for the former attorney raises an issue as to the validity of Applicant’s affidavit given that it is dated prior to the date of the current version of Applicant’s motion.

Nonetheless, the dating is not an issue that needs to be resolved by the Court given the disposition of the application. [ 3 ] Applicant has also filed two expert opinions including documents attached thereto addressing the treatment of aboriginal people in the criminal justice system which are contested by Respondent. [ 4 ] We also have in the record an affidavit from Mtre Guillaume Langlois, the former attorney, providing his version of events, as well as the transcript of a cross-examination conducted by Applicant’s counsel. [ 5 ] Applicant is a physically handicapped Inuit man who, while temporally in Montreal, was arrested and charged by

summary proceeding with two counts of sexual assault, a

summary offence of mischief regarding a laptop computer and an indictable offence of mischief involving the breaking of a window at a Canadian Tire store. In short, while in a drunken stupor, Applicant allegedly smashed a window at a Canadian Tire store, damaged a laptop computer at another retail establishment and inappropriately touched two women he encountered on the street. The offences occurred between April 19 and 22, 2016 and Applicant was arrested on April 28, 2016 in a neighborhood where he had previously undertaken not to be present. [ 6 ] In detention, Applicant was put in contact with Mtre Langlois.

At the first two appearances, a “stagiaire” (different each time) employed by Mtre Langlois was present. Finally, after a week in custody, he met with Mtre Langlois just before appearing in Court when it was decided that he would plead guilty. [ 7 ] Applicant contends that he was pressured into pleading guilty by Mtre Langlois in order to gain his release from jail. He also alleges that the consequences of the guilty plea were not explained, particularly regarding the entry of his name in the registry of sex offenders.

Applicant stresses his vulnerability as a homeless indigenous person who does not speak French and who was in psychological distress. [ 8 ] Applicant also alleges that the judge did not explain the guilty plea and that the proceedings conducted largely in French were not understood by him. The transcript demonstrates otherwise. Exchanges between the judge and counsel, though not exclusively, were in French. Applicant was addressed in English at all times. The language of the trial is not raised in the application or in Applicant’s affidavit as a ground of appeal.

That said, the Court should not be taken as approving the conduct of any part of the proceedings in French, absent an interpreter. [1] [ 9 ] Language is raised as part of Applicant’s submission of the lawyer’s incompetence and, specifically, that inadequate advice and explanation was given by him. [ 10 ] Mtre Langlois tells a different story in his affidavit and cross-examination, insisting that he presented the alternatives to

Applicant and that he did so in English. Most significantly, he claims that upon reviewing with Applicant the facts underpinning each of the charges, the latter acknowledged his guilt. The attorney asserts that he explained that given Applicant’s arrest while on bail, he would need to post security or find a person to act as a surety in order to obtain his release once again. Seeing that this was not possible, he would likely be required to remain in custody until a trial was held in approximately one month’s time.

Alternatively, by pleading guilty, Applicant could benefit from a sentence of one day in jail in addition to the time already served plus a probation order. Mtre Langlois insists that he explained the registration in the sex offenders’ registry as well as the 10-year firearm prohibition. He also avers that he had copies or saw the evidence which the Crown had on file before counselling the guilty plea. [ 11 ] The Court is not without sympathy for Applicant’s predicament and specifically his vulnerability as a homeless indigenous person without knowledge of the criminal justice system.

This is not, however, an appropriate case for leave. [ 12 ] The burden to convince of the lawyer’s incompetence and that the impact was a denial of the right to a fair trial and the right to make a defence ultimately falls on Applicant. [2] [ 13 ] Presently, the issue resolves as to whether Applicant has demonstrated that he has a reasonable chance to establish on the merits that there was such prejudice as to cause a miscarriage of justice. [3] [ 14 ] On the question of prejudice, Applicant’s affidavit does not allege any ground of defence to the offences charged.

He does not deny that, in fact, he did what he was accused of. When asked at the hearing before this Court, what the defence or outcome should be before this Court, counsel replied that the Applicant’s case, properly handled, should have been “dejudiciarized”. In other words, counsel submits that the authorities should have exercised their discretion not to prosecute. However, this is not a defence on the basis of which a court could acquit Applicant.

The exercise of prosecutorial discretion is not subject to review by the courts absent abuse. [4] There is no such allegation here. [ 15 ] What is alleged in this case, supported by the two expert affidavits, is that Applicant’s status as an indigenous person was not raised by his attorney nor considered by the trial judge. This claim of systemic discrimination against First Nations people rests on cases decided by the Supreme Court in matters of sentence, [5] and the consideration to be given to the situation of Aboriginals in crafting appropriate sentences.

In fact, the prosecutor himself raised Applicant’s aboriginal status in submitting the negotiated plea and sentence to the judge. [ 16 ] Applicant has invoked that he was not made aware that his guilty plea to the two counts of sexual assault would cause his name to be entered in the national registry of sex offenders. As stated, his former attorney denies this, affirming that it was explained prior to the plea. Given the conflicting versions, [6] Applicant will be unable to satisfy his burden on the merits of an appeal.

Be that as it may, this Court has decided that such an order is not part of the sentence per se , [7] but rather is an administrative measure so that its imposition does not attract an argument based on the Charter . [8] Even accepting that Applicant was not aware of this consequence and that it is part of the sentence, this does not of itself give rise to the right to withdraw a guilty plea, [9] nor are we convinced in the circumstances that Applicant will be able to convince this Court on the merits that his decision to plead guilty would have been otherwise had he realized that he would be registered as a sex offender. [10] Contrary to the concerns expressed by Applicant, a prospective employer is not amongst those permitted access to the registry; consultation is restricted to police and generally other public authorities. [11] In the circumstances, Applicant could not succeed with the argument that a reasonable person would not have pleaded guilty. [12] [ 17 ] It appears that on balance in this case, the “pressure” to plead guilty came not from counsel but the circumstances of Applicant’s predicament.

He had been detained for almost a week and he wanted to get out of jail. Counsel explained that release without condition was unlikely, given the breach of a prior condition. A trial date was a month away. His attorney concluded that the Crown’s case was solid and he was able to negotiate a lenient sentence. It is in these circumstances that Applicant pleaded guilty and obtained his release after serving the one additional day of incarceration imposed.

There is no evidentiary basis demonstrated before us to indicate that he had a defence to put forward at trial and that, based on the evidence of the Crown, he would not be convicted. [ 18 ] In the circumstances, the proposed appeal has no reasonable chance of success, as it does not appear that any miscarriage of justice occurred. Accordingly, as indicated at the outset, the objections to the new evidence do not require resolution. FOR THESE REASONS, THE COURT : [ 19 ] DISMISSES the application. MANON SAVARD, J.A. GENEVIÈVE MARCOTTE, J.A. MARK SCHRAGER, J.A.

Mtre Julius Grey Mtre Mathieu Laplante-Goulet GREY CASGRAIN For Applicant Mtre Maude Payette DIRECTEUR DES POURSUITES CRIMINELLES ET PÉNALES

For Respondent Mtre Tristan Desjardins CARETTE DESJARDINS For Guillaume Langlois, Applicant’s counsel in first instance Date of hearing: July 3, 2017