r v. R., 2021 QCCA 1752

Wheeler c. R. 2021 QCCA 1752 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-007626-219 , 500-10-007627-217 (760-01-100633-202) DATE: November 22, 2021 CORAM: THE HONOURABLE MARK SCHRAGER, J.A. BENOÎT MOORE, J.A. PETER KALICHMAN, J.A. LLOYD WHEELER APPLICANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT Caution: an Order restricting publication under

section 486.4 Cr.C . was rendered in first instance directing that any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way. [ 1 ] On April 15, 2021, Applicant pleaded guilty to sexual touching (

section 151 (

a) Cr.C .); invitation to sexual touching (

section 152 (

a) Cr.C . ); making available sexually explicit material to a person under the age of 16 (

section 171.1(1) (

b) and (2) (

a) Cr.C . ); and committing an indecent act ( section 173(1) (

a) Cr.C . ), all with regard to one victim, his step-granddaughter. The crimes described in the indictments are alleged to have occurred between 2013 and 2019. A sentence of 3 years (in addition to time served) was imposed on June 23, 2021 on the basis of a joint submission. Applicant filed a notice of appeal from conviction on July 22, 2021. [ 2 ] We are tasked with the adjudication of a series of Applicant’s motions, namely: (

a) motion to extend the time for appeal; (

b) motion for leave to appeal to withdraw guilty pleas; (

c) motion for authorization to adduce fresh evidence; and (

d) motion for leave to appeal from a sentence. [ 3 ] The fresh evidence consists of Applicant’s affidavit outlining his understanding of the parameters of his guilty plea. [ 4 ] The prosecution also moves for the presentation of fresh evidence, being the affidavit of Applicant’s counsel in first instance; the affidavit was obtained following Applicant’s renunciation of solicitor-client privilege. [ 5 ] Both motions to introduce fresh evidence will be granted, such that the affidavits are considered to have been filed and the Court will rely on them in disposing of the other matters.

In both cases, the evidence is new and necessary for the adjudication of the motions before the Court, whether or not strictly new as provided in Palmer v. R. [1] [ 6 ] The basis of the motion for leave to appeal and to withdraw the guilty plea is found in Applicant’s affidavit. From Applicant’s point of view, he was pleading guilty to 3 (perhaps 4) specific incidents. Applicant adds: 12. It was not until July 16, 2021 that I was made aware that I had in fact pleaded to having committed the offenses in the file bearing the number 760-01-100633-202 throughout a period of six years.

Applicant does not allege that the legal assistance he received was ineffective. [ 7 ] In order to obtain leave to extend the delay to appeal and to obtain leave to appeal, Applicant must demonstrate, inter alia , arguable grounds or a real possibility of a miscarriage of justice. If the grounds of appeal are so weak so as to present no real chance of

success, leave should not be granted. [2] [ 8 ] Applicant’s position is simply not borne out by the facts. The indictments state that the crimes were committed during the indicated period, not throughout. The document entitled “Accepted facts

summary for plea purposes” indicates, as Applicant contends, that the specific crimes were committed on specific occasions. The indictment and document were read out loud before Applicant in court. The contents of the document are reflected in the written statement Applicant gave to the police, which is also in the record. This statement could be read so as to suggest that the acts constituting the offenses occurred more than 3 or 4 times.

However, and most significantly, the transcripts of the proceedings of the guilty plea and of the sentencing indicate that all concerned were of the same understanding as to the specific acts to which Applicant pleaded guilty and for which he was sentenced.

The age of the victim when each of the offences occurred is mentioned in the pre-sentencing report and expert report and tends to confirm that Applicant understood that to which he was pleading guilty. [ 9 ] Admittedly, the judge made one remark (page 38 – June 23, 2021) regarding mitigating factors that could be otherwise interpreted: (…) the abuse lasted for so long that the absence of any prior conviction doesn’t carry much weight (as a mitigating factor).

However, this was mentioned at the sentencing hearing where the sentence imposed was a joint submission, which the judge correctly accepted, in keeping with the applicable principles laid down by the Supreme Court of Canada in R. v.

Anthony-Cook . [3] Equally, the reference to Applicant’s behavior “for years” by the lawyer of the DCPP does not suggest that each of the acts was repeated for years, but rather that they occurred during a period counted in years. [ 10 ] Throughout, Applicant was represented by counsel, who affirms having explained the guilty plea and the sentence to Applicant and having consulted with him in that regard. [ 11 ] Accordingly, the grounds invoked to extend the delay and to obtain leave to appeal and to withdraw the guilty plea indicate no reasonable chance of success, nor do they indicate the existence of a miscarriage of justice.

Pursuant to his plea, Applicant was found guilty of certain specific acts as alleged in the indictment, which acts occurred during a long period of time but not throughout that period of time. [ 12 ] Regarding the motion for leave to appeal from a sentence, the following are the grounds invoked: 1. The trial judge erred by considering facts that did not form part of the guilty plea and were not proven by the prosecution. In particular, the trial judge considered that the offences took place over a period of six (6) years and that the applicant had “ Groomed ” the victim; 2.

The trial judge erred by not allowing the applicant to address the Court in accordance with

section 726 of the Criminal Code ; 3. The trial judge erred by placing too much importance on the principle of general deterrence; 4. The trial judge erred by not giving enough consideration to the following elements: (

a) The applicant’s low risk of recidivism; (

b) The applicant’s remorse; (

c) The applicant’s age. [ 13 ] The sentence was a common suggestion of counsel. It was imposed after the preparation of a pre-sentence report and an expert report by a sexologist. Applicant’s trial counsel affirms having considered all the factors and having done legal research as part of the process. She adds in her affidavit that Applicant accepted the plea bargain after having been counseled that if the suggested sentence was not accepted, the prosecution could seek, and the Applicant could conceivably receive, a harsher sentence. [ 14 ] On the basis of R. v.

Anthony-Cook , [4] the judge would have been justified to depart from the common suggestion of counsel only where the proposed sentence was one that would be viewed by reasonable and informed members of the public as a breakdown in the proper functioning of the justice system.

The foregoing grounds alleged in the motion for leave to appeal from a sentence do not address this point. [ 15 ] The mention of “grooming” stems from Applicant’s own explanation that he was educating the victim. [ 16 ] As for the second ground—the trial judge not allowing Applicant to address the Court—the trial judge stopped Applicant from reiterating that what he did to the victim was with a view to educating her. This was his excuse to counter his culpability for his acts from the moment he gave a statement to the police, an excuse which his lawyer affirms she had told him was not a defence.

Even if this was an error on the part of the judge (which is far from evident) it is not overriding in the circumstances. [ 17 ] As for the emphasis on general deterrence, this is merely giving effect to

section 718.01 Cr.C . and the judgment of the Supreme Court in Friesen . [5] [ 18 ] Lastly, the elements listed in ground 4 above were considered by the judge. [ 19 ] Consequently, the proposed appeal from sentence would also have no reasonable chance of success.

FOR ALL THE FOREGOING REASONS, THE COURT: IN THE FILE NO. 500-10-007626-219 [ 20 ] GRANTS Applicant’s motion for authorization to adduce fresh evidence; [ 21 ] GRANTS Respondent’s “Requête pour être autorisé à présenter une preuve nouvelle”; [ 22 ] DISMISSES Applicant’s motion to extend the time for appeal; [ 23 ] DISMISSES Applicant’s motion for leave to appeal to withdraw guilty pleas; IN THE FILE NO. 500-10-007627-217 [ 24 ] DISMISSES Applicant’s motion for leave to appeal from a sentence. MARK SCHRAGER, J.A. BENOÎT MOORE, J.A. PETER KALICHMAN, J.A.

Mtre Sara Abdel-Malik For Applicant Mtre Patrick Cardinal DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For Respondent Date of hearing: November 15, 2021