Vauclair, Mainville, Hogue

Appeals from convictions, sentences, and a dangerous offender declaration. Dismissed. Various applications (6). Application for leave to adduce new evidence is granted; the others are dismissed.

In the judgments under appeal, which were rendered by the Superior Court and the Court of Québec, the appellant was found guilty of obstructing justice and of violent offences. In the first case, he was sentenced to 4 years’ imprisonment, and in the second, after being declared a “dangerous offender”, he received an indeterminate sentence. The grounds of appeal concern primarily the process that led to the verdicts and the dangerous offender declaration. It should be noted that the appellant consistently displayed an antagonistic attitude towards everyone involved, that he was declared a vexatious litigant during the course of proceedings, and that he was not represented by counsel except on certain exceptional occasions. Finally, given the recent decision of the Supreme Court of Canada in R. v. Kahsai (S.C. Can., 2023-07-28), 2023 SCC 20, SOQUIJ AZ-51956980, 2023EXP-1835, on the powers of an amicus curiae, the Court suspended its deliberations and invited the parties to submit observations on the impact of that judgment on these appeals.

Kahsai had no impact in this case. It is true that the appellant might have been advised by the Court of Québec to appoint an amicus curiae, and that the Superior Court could have given the one it appointed a more robust amicus role, but this would have had no impact on the appellant’s defence. An amicus curiae appointed by the trial judge must be able to obtain information from the accused so that his or her interventions may be useful. However, it appears that this prerequisite was not met in the two trials in this case because of the appellant’s attitude.

As to the merits of the appeals, while the Court of Québec did not strictly follow the procedure provided in section 561 of the Criminal Code (R.S.C. 1985, c. C-46) regarding the accused’s right to re-election, it nonetheless substantially complied with it. In addition, the argument faulting the trial judge for not having ensured that the appellant was fit to stand trial is unfounded. On the other hand, it is true that the judge erred in failing to explain to the appellant, a self-represented accused, the basics of the trial procedure and did not take steps to provide a video link for the appellant, whom he had just excluded from the courtroom. In other circumstances, these errors could have resulted in an order for a new trial, but not in this case.

All the grounds of appeal from the judgment of the Superior Court are dismissed. These grounds concerned how the judge managed the departure of a juror, the issue of the appellant’s fitness to stand trial, the powers conferred on the amicus curiae, and the use of similar fact evidence to identify the appellant and the instructions to the jury pertaining to it.

The grounds raised against the dangerous offender declaration are also dismissed, even though the judge’s statement of the law was erroneous. When an offender is designated as a dangerous offender, detention in a penitentiary for an indeterminate period is not the default sentence. The structure of the sentencing judgment might also be criticized because it is not entirely consistent with the principles in R. v. Boutilier (S.C. Can., 2017-12-21), 2017 SCC 64, SOQUIJ AZ-51453245, 2018EXP-32, [2017] 2 S.C.R. 936. The Court does not see this as a fatal error, however, given the judge’s findings of fact.

As for the issue of the right to stand trial within a reasonable time, 67 months is an exceptionally long delay and should not be deemed normal. However, by reason of the appellant’s behaviour throughout the proceedings, this case was anything but normal.

Text of the decision: http://citoyens.soquij.qc.ca