R v Belcourt, 2018 SKCA 60

Court of Appeal for Saskatchewan Docket: CACR2626 Citation: R v Belcourt , 2018 SKCA 60 Date: 2018-07-31 Between: Dean Brian Belcourt Applicant/Appellant And Her Majesty the Queen Respondent/Respondent Before: Herauf J.A. (in Chambers) Disposition: Application granted Written reasons by: The Honourable Mr. Justice Herauf On Application From: CACR2626, Regina Application Heard: July 20, 2018 Counsel: Nicholas Stooshinoff, Q.C. for the Applicant Erin Bartsch for the Respondent Alan McIntyre, Q.C. for the Saskatchewan Lawyers Insurance Association Herauf J.A. [ 1 ] Mr.

Belcourt was convicted of sexual assault on May 5, 2015. He was sentenced to a term of three years on May 8, 2015. [ 2 ] Mr. Belcourt was represented by counsel at trial. He retained different counsel to represent him on appeal. Appeal counsel filed a notice of appeal against conviction and sentence on June 5, 2015. Trial transcripts were filed on July 23, 2015. In mid-October 2015, Mr. Belcourt applied for bail pending his appeal. His application for bail was denied on November 2, 2015. [ 3 ] The appeal was stagnant for a number of months in late 2015 and early 2016.

The Registrar referred the appeal to the Court for case management in March 2016. As a result of the case management process, appeal counsel was ordered to file the appellant’s factum by August 2, 2016. Appeal counsel withdrew as counsel for Mr. Belcourt on July 29, 2016. Appeal counsel filed a notice of abandonment of appeal from conviction and sentence on August 10, 2016. [ 4 ] Mr. Belcourt maintains that he never instructed appeal counsel to abandon his appeal. He also claims that he never had any intention to abandon his appeal.

Appeal counsel takes the opposite view and maintains that he had received clear instructions to abandon the appeal. As a result of those clear instructions, he filed a notice of abandonment. Here lies the rub. [ 5 ] Mr. Belcourt, appeal counsel, and a Corrections Canada employee from the federal penitentiary where Mr. Belcourt was incarcerated, filed affidavits. All three were cross-examined on those affidavits. [ 6 ] Rule 36 of The Court of Appeal Criminal Appeal Rules (Saskatchewan) is the relevant rule, which reads: Notice of abandonment 36

(1) If an appellant desires to abandon an appeal, the appellant shall file a Notice of Abandonment in Form H signed by the appellant or by the appellant’s counsel.

(2) A notice of abandonment has the same effect as an order dismissing an appeal unless a judge, who is satisfied that it is in the interests of justice to do so, permits the appellant to withdraw the abandonment of the appeal. (Emphasis added) [ 7 ] Counsel for Mr. Belcourt and counsel for the Crown agree that the appeal was not heard on its merits.

Counsel for the parties also agree that if I find appeal counsel abandoned the appeal without specific instructions to do so, the interests of justice would require that the conviction appeal be reinstated (see R v McDonald , 2016 ONCA 288 at para 6 ; R v Terezakis , 2009 BCCA 570 at para 23 ). I pause here to note that Mr. Belcourt served his entire sentence, so mootness would preclude the reinstatement of the sentence appeal. [ 8 ] In this particular case, the “interests of justice” inquiry must focus on whether Mr. Belcourt instructed appeal counsel to abandon the appeal.

For the reasons set out below, I am of the view Mr. Belcourt has met the onus to satisfy me that he did not provide instructions to appeal counsel to abandon his appeal. In the result, the appeal will be reinstated to be heard on its merits. In coming to this conclusion, I was able to examine the complete record, including the affidavits and consider the extensive cross-examination of the affiants and the valuable submissions of counsel for all parties. [ 9 ] There are several pieces of evidence and surrounding circumstances that suggest Mr.

Belcourt did not intend to abandon his appeal, nor did he ever clearly instruct his counsel to do so. [ 10 ] First, the evidence supports Mr. Belcourt’s assertion that he was never made aware of the abandonment and never received

the notice of abandonment from appeal counsel. Mr. Belcourt, appeal counsel, and the Corrections Canada employee, all agreed that there were communication issues between Mr. Belcourt and his lawyer while he was incarcerated. In addition, the August 1, 2016, email from Mr. Belcourt’s partner to appeal counsel stating that Mr. Belcourt planned to continue with the appeal also supports this conclusion.

Her use of the words “overall appeal” suggests that she was referring to the appeal of conviction and not of his denial of parole as appeal counsel suggests. [ 11 ] Second, appeal counsel withdrew as counsel on July 29, 2016, while the notice of abandonment was not filed until August 10, 2016. It is unclear if appeal counsel discussed with Mr. Belcourt the fact he was abandoning the appeal and not just “withdrawing” as counsel. It is also unclear if appeal counsel discussed the distinction between withdrawal and abandonment with Mr.

Belcourt at that time. [ 12 ] Third, appeal counsel stated on cross-examination that when he first discussed the issue with Mr. Belcourt he used the term “withdrawal” instead of “abandonment”. His notes, as well as his letter to the Registrar, confirm this. In my view, this confusion and the existing poor communication between appeal counsel and Mr.

Belcourt created a misunderstanding that led to appeal counsel filing the notice of abandonment. [ 13 ] Fourth, appeal counsel may not have fully understood that the appeal had been abandoned or the consequences of this since he failed to include the notice of abandonment in the materials he forwarded to Mr. Belcourt’s new counsel, Mr. Stooshinoff. As well, he did not raise the issue of abandonment in his cover letter to Mr. Stooshinoff accompanying Mr. Belcourt’s file. [ 14 ] Fifth, there is nothing in writing from Mr. Belcourt to appeal counsel providing specific instructions to abandon his appeal.

As well, there is nothing in writing from appeal counsel to Mr. Belcourt confirming that the appeal had been abandoned. [ 15 ] Finally, Mr. Belcourt has adamantly maintained his innocence since his conviction and all parties acknowledged this. Moreover, Mr. Belcourt stated that his denial of guilt is the reason for his conviction appeal. Mr. Belcourt’s continual denial of his guilt is best exemplified by the evidence of the Corrections Canada employee who testified that her relationship with Mr.

Belcourt was “tedious and trying”, largely because of his reluctance to accept responsibility for his actions and admit his guilt. Furthermore, it would be unlikely that Mr. Belcourt would abandon his appeal as a ploy to receive either early parole or a transfer to a new facility, yet still adamantly continue to deny his guilt. This is especially true considering Mr. Belcourt believes he was denied early parole based solely on his lack of accountability. [ 16 ] The Crown’s submission that Mr.

Belcourt’s delay in pursuing his appeal is evidence of his intention to abandon the appeal in the summer of 2016 is not persuasive. Mr. Belcourt stated that after appeal counsel withdrew he could not immediately afford a lawyer and decided to wait until he finished serving his sentence to acquire new legal counsel and pursue his appeal, which he did immediately upon his release. This explanation is consistent with Mr.

Belcourt’s actions and the August 1, 2016, email from his partner to appeal counsel. [ 17 ] I wish to make it perfectly clear that in coming to this conclusion I cast no aspersions on the character of appeal counsel. This was a difficult case. Communication between Mr. Belcourt and appeal counsel was trying at times. Ultimately, the facts, as I have found them, support the reinstatement of the conviction appeal. [ 18 ] There will be an order setting aside the abandonment and dismissal of the appeal. The appeal can be set for hearing as soon as the facta are filed.

The Registrar may refer the appeal to case management if necessary. “Herauf J.A.” Herauf J.A.