2021 QCCA 1654, 2021 QCCA 1654

R. c. Simiunie 2021 QCCA 1654 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-003734-204 (635-01-018536-194) MINUTES OF THE HEARING DATE: November 2, 2021 CORAM: THE HONOURABLE FRANÇOIS PELLETIER, J.A. JULIE DUTIL, J.A. SUZANNE GAGNÉ, J.A. APPELLANT COUNSEL HER MAJESTY THE QUEEN Mtre ANNIE-CLAUDE BRETON (Director of Criminal and Penal Prosecutions) RESPONDENT COUNSEL JOE SIMIUNIE Mtre STEVE HANAFI On appeal from a judgment rendered on January 7, 2020 by the Honourable Marc Ouimette of the Court of Québec, District of Abitibi

DESCRIPTION : Assault with a weapon – Possession of weapon for dangerous purpose – Failure to comply with condition of undertaking (3 counts) (acquittal) Clerk at the hearing: Alysson Roussel Courtroom: 4.33 - videoconference HEARING 12:32 Calling of the file and identification of the parties; The Court addresses the parties; Submissions of Mtre Breton; Discussion between the Court and Mtre Breton; Mtre Breton continues; 12:46 Discussion between the Court and Mtre Hanafi; Submissions of Mtre Hanafi; 12:47 Recess of the hearing; 12:55 Resumption of the hearing; 12:56 The Court declares that it will not be necessary to hear Mtre Hanafi; Judgment; End of the hearing.

Alysson Roussel, Clerk at the hearing JUDGMENT [ 1 ] The appellant appeals from a judgment rendered orally on January 7, 2020 by the Court of Québec, Criminal and Penal Division, District of Abitibi (the Honourable Marc Ouimette), which dismissed its request for a postponement that was based on the absence of a key witness. [1] [ 2 ] In an oral judgment rendered at the hearing, the trial judge analyzed the three conditions established by the Supreme Court, in R. v.

Darville , [2] for determining whether a request for a postponement, based on the absence of a witness, should be granted. [ 3 ] The judge first concluded that the appellant’s witness was a “material” witness within the meaning of the first condition, that is, that he was in a position to provide relevant testimony. The judge, however, was of the view that the appellant had not satisfied the second condition, because it had not acted diligently in attempting to serve the appearance notice.

The judge stated that the appellant had waited until January 3, 2020 to do so, although the January 7, 2020 trial date had been set since mid-November 2019. Moreover, Apaluk is a small village in which all the inhabitants know each other. Police officers could have tried to locate Mr. Uquittuq, the witness, through his family. Lastly, as to the third condition, there was no reasonable expectation that the witness would be available on the date until which the trial could be postponed, because this was not a situation in which the witness was temporarily unavailable.

Rather, he had not received an appearance notice. [ 4 ] Following this decision, the appellant stated that it had no evidence to proffer and the judge acquitted the respondent on the five counts that had been brought against him.

* * * [ 5 ] Section 676(1) (

a) Cr.C . provides that the Crown can appeal a verdict of acquittal only on questions of law. [ 6 ] In the present case, the judge correctly stated the law when identifying the three conditions, set out in R. v. Darville , [3] that a court must consider in determining whether or not a request for a postponement should be granted. The appellant argues, however, that he committed a reviewable error when applying the second condition, because the evidence shows that several steps were taken prior to January 3, 2020 as well as on that date. [ 7 ] The Court is of the opinion that this ground of appeal must fail.

Indeed, this is not an overriding error. While it is true that the judge limited himself to the steps taken on January 3, 2020, he nevertheless also mentioned that all the inhabitants of the village know each other and he wondered why police officers had not contacted the witness’s family in order to locate him. Moreover, the evidence is vague regarding the steps taken as of December 18, 2019 to locate the witness. It should be noted that, at that point, the trial date had already been determined a month earlier.

The appellant could have taken steps well before December 18, 2019. [ 8 ] As to the third condition, the judge did not err in finding that there was no reasonable expectation that the witness would attend in court on a subsequent date. He had no information on this point. He exercised his discretion in a judicial manner. [4] [ 9 ] Lastly, while the judge’s reasons in analyzing the other relevant circumstances to be taken into consideration in arriving at his decision are succinct, he did mention that he considered both the seriousness of the counts and the presumption of innocence.

Moreover, as the appellant argues, he took into account the fact that the respondent was being held in custody in connection with other charges on which he was awaiting trial. The judge was of the view, however, that this argument was not part of the conditions to be considered under R. v. Darville . [5] He did not commit a reviewable error in this regard. [ 10 ] In conclusion, the Court is of the opinion that the judge did not err in law by refusing the appellant’s request for a postponement. FOR THESE REASONS, THE COURT: [ 11 ] DISMISSES the appeal. FRANÇOIS PELLETIER, J.A. JULIE DUTIL, J.A. SUZANNE GAGNÉ, J.A.