Dutil, Healy, Sansfaçon

Applications to extend the time limit to file an appeal and for leave to appeal. Application for leave to adduce fresh evidence. Granted. Appeal from convictions. Appeal from the sentence. Allowed in part.

The appellant was accused of various sexual offences, including child pornography. Prior to his trial, he revoked the mandate he had given his counsel and decided to represent himself. Convicted on 10 counts, the appellant was sentenced to 54 months’ imprisonment.

The trial judge must assist the accused who choses to represent himself or herself. The judge must offer impartial information and other forms of assistance that will allow the accused to personally present his or her own case. This positive obligation to ensure a full answer and defence is limited by the requirement of impartiality, but also by the duty to respect the limits that are beyond the judge’s control.

In this case, the judge did not err by dismissing the appellant’s application to be appointed [translation] “legal adviser”. She acknowledged that the court could not provide the appellant with something he had voluntarily given up. In accordance with established principles, she scrupulously noted the distinction between the advice the appellant might want to receive and the information required to present his defence. The reasonable assistance of an accused requires that discretion be exercised judiciously when assessing what is necessary to guarantee the accused’s right to make full answer and defence. Similarly, the judge’s exclusion of the possibility of appointing amicus curiae was justified. She concluded that, despite the complexity of the case, the assistance of amicus curiae was not necessary to guaranty that the accused could make full answer and defence while exercising his right to represent himself.

With respect to the dismissal of the application for a stay of proceedings, the judge deemed that the appellant had not been harmed by the lack of time to prepare, despite the conditions of his detention. She continued the trial to proceed efficiently, but nevertheless granted continuances to allow the appellant to prepare according to his needs. The judge did not err in the manner she exercised her discretion in this respect. Also, the judge criticized the expeditious preparation of the prosecution’s case and took steps to facilitate the preparation of the appellant’s case. Thus, it cannot be argued that she was unable to prevent a miscarriage of justice.

As for the interpretation of the actus reus of the offence under section 172.2 of the Criminal Code (R.S.C. 1985, c. C-46) (Cr. C.), the judge did not err in concluding that, even if the offence contemplated by the accused had never been perpetrated, his communication with the undercover agent left no doubt as to his unlawful purpose. The purpose of that provision is to protect children against the risk of a designated offence. This risk exists as soon as there is an agreement or arrangement with another person to commit the activity or prohibited purpose within the meaning of a designated offence.

As for the sentence, the absence of express justification in the judge’s reasons for the extent of the total prohibition on using the internet for 20 years does not necessarily mean that the reasons are insufficient or that the order is inappropriate. The part of the order based on section 161(1)(a.1) Cr. C. should be set aside, however; the respondent agreed that this order was inappropriate because there is no identifiable victim in this case.

Legislation interpreted: section 172.2 Cr. C.

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