2011 QCCA 1812, 2011 QCCA 1812

Unofficial English Translation Billette c. R. 2011 QCCA 1812 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004739-106 (760-01-049190-090) DATE: September 30, 2011 CORAM: THE HONOURABLE PIERRE J. DALPHOND, J.A JACQUES DUFRESNE, J.A. JEAN BOUCHARD, J.A. DENIS BILLETTE APPELANT – accused v. HER MAJESTY THE QUEEN RESPONDENT – prosecutrix JUDGMENT [ 1 ] The appellant appeals from a conviction pronounced on November 9, 2009, by the Superior Court, District of Beauharnois (the Honourable Mr.

Justice Claude Champagne), following his guilty plea on the following charge: [translation] Between September 1, 2009 and September 24, 2009, at Beauharnois, District of Beauharnois, and elsewhere in the Province of Quebec, did conspire with Roger Fortier and Gérard-Denis Mooijekind to have A.C. murdered thereby committing the indictable offence set out in section 465(1) (

a) of the Criminal Code . [ 2 ] Despite the specific questions asked by the trial judge, who enquired into the free and voluntary nature of the appellant's guilty plea, the appellant explained in an examination on discovery that was held on December 15, 2010, that he pleaded guilty not because he acknowledged the constituent elements of the offence with which he was charged, but because his counsel had informed him that he would serve his sentence in the community, whereas it would cost him between $30,000 and $50,000 to go before judge and jury.

Since his attorney fees were being covered by his brother and sister-in-law, it was the appellant’s understanding that he never truly had any say with respect to the strategy that should be adopted. [ 3 ] It is noteworthy that this attorney found himself in a conflict of interest because he failed to fully inform the appellant, who was justifiably worried about his situation, being content instead to declare that he had previously represented the victim's son for a "DUI", but that the case was closed.

An excerpt of the court ledger in the case of F.C., the victim's son, reveals however that, as at November 9, 2009, [1] the appellant's counsel was still the victim’s son’s counsel of record in a case involving possession of a prohibited firearm. In 2001, he had represented the victim's son in a separate case, this one involving the production of narcotics. [ 4 ] This is the first serious breach of the appellant's right to effective representation by counsel guaranteed under

section 7 and paragraph 11(

d) of the Canadian Charter of Rights and Freedoms , which implies representation by loyal and independent counsel. [ 5 ] The appellant's counsel at trial, on whom notice was served pursuant to

section 26 of the Rules of the Court of Appeal of Quebec in Criminal Matters , did not appear. The appellant's version is therefore uncontradicted. [ 6 ] The second serious breach of procedure to which the appellant was subjected was the information that counsel gave him that if he pleaded guilty to the charge of conspiracy to commit murder, he would serve his sentence in the community. This information is wrong because conspiracy to commit a murder of this nature is an offence that always carries a prison sentence in excess of 24 months,

thereby excluding a sentence that could be served in the community. [ 7 ] The appellant's guilty plea is without a doubt a denial of justice, first because it was recommended by counsel whose loyalty may have been seriously compromised, and second because the appellant was never afforded the possibility of assessing the consequences of his plea with full knowledge of the situation. And there is more. [ 8 ] The appellant is accused of having conspired with two other persons, G.-D. Mooijekind and Roger Fortier.

In a striking judgment dated July 2, 2010, Sophie Bourque J., of the Superior Court, acquitted the appellant's co-accused Mooijekind of this very offence after the appellant testified before her and after he had pleaded guilty. She wrote the following: [translation] [153] Denis Billette never intended to have A. C. killed . [154] Gérard-Denis Mooijekind never intended to have A. C. killed . [155] What appears from the evidence is that an unscrupulous manipulator dominated and exploited two trusting and easily influenced individuals to serve his own purposes.

These individuals were led to take certain actions, unable to resist the persuasiveness of the individual that was urging them on. These actions, however, were not accompanied by the state of mind required for the crime of conspiracy to exist . [156] In truth, both Gérard-Denis Mooijekind and Denis Billette may have had motive to want A. C.'s disappearance. Yet, in light of the evidence adduced, this motive is insufficient to convince the Court that they had a bona fide intent to agree to have A. C. killed . [157] There was never a true conspiracy to have A. C. killed.

That was Roger Fortier's scenario, one that was made up to protect himself from the fraud complaints brought by Mooijekind's family . [158] We must not forget that in criminal matters, the prosecution's onus is heavy since it must present proof of the crime beyond any reasonable doubt. [159] Thus, from the evidence adduced, the Court finds that it must believe Gérard-Denis Mooijekind when he asserts under oath that there was never any agreement with Denis Billette to have A.

C. killed and that there was never any intent to put such a plan into motion. [Emphasis added.] [ 9 ] Incidentally, the Crown did not appeal from that judgment where the evidence adduced convinced the judge that the appellant "never intended to have A.C. killed". [ 10 ] Before this Court, the Crown adds that it does not intend to present evidence if the guilty verdict is set aside. The Crown's position therefore signifies that if a new trial is ordered, it will necessarily translate into an acquittal.

FOR THESE REASONS, THE COURT: [ 11 ] ALLOWS the appeal; [ 12 ] AUTHORIZES the appellant to withdraw his guilty plea; [ 13 ] SETS ASIDE the guilty verdict and the sentence; [ 14 ] ACQUITS the appellant. PIERRE J. DALPHOND, J.A. JACQUES DUFRESNE, J.A. JEAN BOUCHARD, J.A. Mtre Katia Léontieff Desrosiers, Joncas, Massicotte For the appellant Mtre Hélène Langis Criminal and penal prosecutor For the respondent Date of hearing: September 29, 2011