Jul 3, 2019

Y.Z. v. R., 2019 QCCA 1123 - Alone in the appellate dark

Y.Z. v. R., 2019 QCCA 1123 (CanLII)

Being unrepresented in court is an alienating experience. Having to navigate the intricacies of the appellate courts alone is even more arduous, and would understandably drive even the most strong-willed mad. This case is a sad example of this growing reality, which more and more people endure.

Convicted of harassment against his former spouse and her new partner, the appellant felt the verdict unjust and sought relief from a higher court. Though represented at trial, he was unassisted for his appellate proceedings. This led to a series of failed attempts. It is worth noting that the appellant "is not fluent in English and does not speak French" [par. 7], only exacerbating the already confusing process he had to navigate.

The appellant first filed an appeal in the wrong forum, which was denied as such [par. 1]. His notice was deposited on the last day of his delay to appeal. Realising after the respondent moved to dismiss that appeal that his appeal wasn't directed to the correct court, he took steps to appeal in the proper court, the Court of Appeal, and filed a notice of appeal on questions of law and asked for permission to appeal his verdict on factual grounds. This last motion was, however, stricken, as it had been deposited outside the required delay without a motion for this delay to be waived [par. 2]. Now informed (though through an adverse judgment) of his procedural mistake, he filed amended notices of appeal and motion for leave to appeal. He included passages requesting an extension of the time limit within which to appeal.

This is the stage where Justice Bich was seized with the appellant's file. The respondent opposed the request for a time extension, arguing that the proposed grounds of appeal did not meet the third prong of the test in R. c. Lamontagne, 1994 CanLII 6295 (QC CA), namely that they were not even arguable. Given the particular circumstances, they, however, conceded the first and second prongs, respectively an intention to appeal on time and reasonable diligence thereafter. Therefore, the only question Justice Bich had to answer was whether the grounds raised by an unassisted appellant [see par. 9] arguable.

We were present at the Court of Appeal when the appellant was asked to present his arguments to Justice Bich. It was a protracted, emotional and difficult process. The appellant's feelings of injustice were palpable. But his presentation was non-linear, non-legal, repetitive, confusing, and most importantly missing the point (though reiterated numerous times, to try to focus the debate) of whether his grounds of appeal were arguable. Justice Bich was patient and understanding, but in the end, she had to apply the law. As we now find out, this led her to dismiss the appelant's motion to extend the time limit of his appeal. Barring new (unlikely) motions, this means that the appellant's recourses are exhausted.

In our opinion, this was the inevitable decision given the state of the file and the appellant's representations. Yet, we cannot but wonder how things could have been different. It is quite possible that no arguable grounds of appeal existed in the appellant's favour. Under a narrow view, what happened in this case is as such justice, its result being consistent with the inevitable result it would have reached in the end. But, to quote Lord Chief Justice Hewart in R. v. Sussex Justices, ex parte McCarthy, [1924] 1 KB 256, "[n]ot only must Justice be done; it must also be seen to be done." It was even, ironically, the appearance of fairness that made up most of the appellant's doomed grounds. Can we say there such an appearance, when the appellant could not receive proper assistance?

It is impossible to know if a legally-versed person, faced with the case, could have found a valid ground to argue on appeal. And we never will. The appellant was not financially admissible to legal aid. Free legal clinics are few and far between, and rarely cover appellate criminal law. Legal assistance would in itself be required to successfully request that an order be made under s. 684 of the Criminal Code for a lawyer to be appointed to assist the appellant. This leaves the appellant in this case, and others in his situation, to the mercy of the whims of fate, and the good graces of lawyers who may agree to help pro bono. His language barriers make such odds even slimmer. Such arbitrarity is difficult to reconcile with a system that truly appears to be fair.

Given the complexity of the justice system, it is necessary that proper advice and assistance be made available, easily and at least initially costs-free. We have a collective duty to provide this basic service. But lawyers cannot be expected to bear this burden alone. And the ancillary costs must also be thought of: though going beyond the scope of this commentary, the required transcript and printing fees required to comply with the rules of the Court of Appeal get staggeringly high for most people. The State is failing in this regard, leading to unassisted people crashing on court shores and appellate rocks.

What of our appellant? It might be that he truly had no valid recourse. Not having been afforded the opportunity for his case to be properly examined, however, his feeling of injustice will stand, exacerbated by his experience of facing appellate judges on his own.