2023 QCCA 271, 2023 QCCA 271

H.W. c. R. 2023 QCCA 271 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-007930-223 , 500-10-007951-237 ( 550-01-117908-204 ), (550-116008-204), (550-01-117602-203) MINUTES OF HEARING WARNING : The trial court made an order under s. 486.4(1) Cr.C . directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way. DATE: February 16, 2023 THE HONOURABLE MARK SCHRAGER, J.A. APPLICANT COUNSEL H. W. Mtre Catherine Paré Gascon By videoconference RESPONDENT COUNSEL HIS MAJESTY THE KING Mtre Isabelle Michaud ( Directeur des poursuites criminelles et pénales ) By videoconference

DESCRIPTION: 500-10-007930-223 Application for leave to appeal from the sentence rendered on November 21, 2022, by the Honourable Alexandra Marcil of the Court of Québec, Criminal and Penal Division, District of Gatineau (Section 675(1)(

b) Cr.C .) Application for release from custody pending the determination of the appeal ( Section 675(1) Cr.C . ) 500-10-007951-237 Application to extend the time limit for an appeal ( Section 678(2) Cr.C . ) Application for leave to appeal from a conviction on grounds that involve questions of mixed law and fact and allege the ineffective assistance of counsel in first instance ( Section 675(1) (a)(ii) Cr.C . ) Clerk at the hearing : Ariane Simard-Trudel Courtroom: RC-18 HEARING 9:31 Commencement of the hearing. Identification of counsel.

Continuation of the hearing held on February 13, 2023. 9:32 Discussion between the judge and the counsel. 9:36 BY THE JUDGE : Judgement – see page 4. 9:40 Conclusion of the hearing.

Ariane Simard-Trudel, Clerk at the hearing JUDGMENT WARNING : The trial court made an order under s. 486.4(1) Cr.C . directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way. [ 1 ] The Applicant that was convicted by the Cour du Québec, District of Gatineau (the Honourable Alexandra Marcil), on May 18, 2022 of the indictable offences of assault, assault causing bodily harm and assault with a weapon and of the

summary offences of assault and intimidation. He was also convicted of the

summary offence of breach of conditions. The victim in all the cases was his former spouse. [ 2 ] On November 21, 2022, the Applicant was sentenced to a total of 48 months of incarceration.

[ 3 ] I am tasked with the adjudication of four motions as follows: (

i) to extend the delay to appeal from the convictions; (ii) for leave to appeal on mixed questions of law and fact and because of ineffective assistance of counsel; (iii) for leave to appeal sentence; (iv) for interim release pending appeal . (

i) Motion to extend the delay to appeal from the convictions [ 4 ] The motion supported by the Applicant’s affidavit and that of his current spouse demonstrates that the Applicant manifested his intention to appeal within the delay. The grounds alleged are prima facie sufficiently serious to extend the delay. Moreover, the prosecution does not contest. [ 5 ] This motion will be granted. (ii) Motion for leave to appeal on mixed questions of law and fact and because of ineffective assistance of counsel [ 6 ] The Applicant invokes the following grounds of appeal: (

i) that the conclusions of the judge are based on hypotheses and the lack of transparency of the Applicant’s testimony rather than reasonable inferences drawn from the evidence. In other words, that the verdict is unreasonable and the judge did not respect the teachings of the Supreme Court in WD ; [1] (ii) ineffective assistance of counsel amounting mainly to: (

a) the lack of meetings prior to the trial so that the Applicant did not have access to the evidence communicated by the prosecution nor to his admissions which the prosecution would seek to introduce into evidence; and (

b) lack of objection during the administration of the prosecution’s evidence. [ 7 ] I note that the motion and supporting affidavit’s of the Applicant and his current spouse were served on the former attorney on February 2, 2023. I am informed that he has not yet submitted any reply. [ 8 ] I also note that the form required to be completed by Rule 61 of the Court was not filed in the record, but the attorneys are in the process of rectifying this omission; the form has been completed and will be signed and filed in original form this week. [ 9 ] The prosecution contests given the generic nature of the issues raised under (

i) above. With regard to the ineffective assistance of counsel, the prosecution indicates that the Applicant was acquitted of the charge of sexual assault based on the doubt raised as a result of defence counsel’s cross-examination of the victim.

Regarding the lack of objection by defence counsel to the admissibility of certain elements of the proof, the Respondent submits that a reading (particularly of the opening paragraph) of the 26-page detailed judgment indicates that this had no bearing on the outcome. [ 10 ] To the extent that Applicant argues that the verdict is unreasonable, his first ground is characterized as an error of law for which leave is not required. [2] The second ground is at the least arguable. Accordingly, I will grant leave to appeal.

However, as will be seen below, the weakness of the grounds for appeal will bear on the application for release pending appeal. (iii) Motion for leave to appeal sentence [ 11 ] The sentence of 48 months of incarceration is relatively severe. It is well beyond the three-months of intermittent imprisonment pleaded by the Applicant before the judge and below the 52 months of incarceration sought by the prosecution. [ 12 ] The grounds of appeal alleged in the motion are somewhat generic as no specifics are alleged: 9. Le requérant désire obtenir l’autorisation d’appeler de la sentence pour les motifs suivants :

a) La juge a erré en droit puisque la peine qu’elle a imposée est déraisonnable eu égard à la preuve et conformément aux principes de droit;

b) La juge de première a erré en droit en ayant tiré des inférences déraisonnables et/ou non fondées sur la preuve soumise au stade de la sentence. En effet, un poids considérable fut accordé à un élément qui a notamment été considéré à

titre de facteurs aggravant et ce, de manière erronée;

c) La juge de première instance a erré alors qu’elle a donné une importance indue et disproportionnée aux facteurs de dénonciation et de dissuasion.

De cette manière, la juge de première instance a exercé son pouvoir discrétionnaire de façon déraisonnable en insistant plus qu’il ne fallait sur un facteur et/ou en omettant d’accorder suffisamment d’importance à un autre; [ 13 ] The 16-page judgment on sentence enunciates the applicable legal principles and ties them to the circumstances of the commission of the offences; it also explores in detail the other facts germane to the imposition of sentence. [ 14 ] Nevertheless, and given the relatively lengthy period of incarceration, I will refer the motion to the bench hearing the appeal from conviction so that the Applicant has the benefit of three judges evaluating the sentence.

The Respondent’s counsel does not object to proceeding in this manner. (iv) Motion for interim release pending appeal [ 15 ] In seeking interim release, the Applicant invokes that he has no judicial proceeding pending against him and that up until his incarceration, he lived with his current spouse, was employed and does not consume alcohol or drugs. [ 16 ] We see from the judgment on sentence that there is history of convictions for crimes of violence and offences similar to those for which an appeal is sought herein.

The consumption of alcohol was associated with the commission of the offences in this case as well as the prior offences, all involving violence. The Applicant has not sought treatment though his attorney states that he has stopped drinking. [ 17 ] The prosecution objects to release.

[ 18 ] The criteria for release are set out in article 679(3) of the Criminal Code : 679(3) (…) 679 (3) […] (

a) the appeal or application for leave to appeal is not frivolous;

a) que l’appel ou la demande d’autorisation d’appel n’est pas futile; (

b) he will surrender himself into custody in accordance with the terms of the order; and

b) qu’il se livrera en conformité avec les termes de l’ordonnance; (

c) his detention is not necessary in the public interest.

c) que sa détention n’est pas nécessaire dans l’intérêt public. [ 19 ] As stated above, the appeal is not frivolous, although the grounds invoked are not strong so that, success in appeal is not likely. The bar is not high in such regard for purposes of granting leave to appeal. However, the relative strength or weakness of the grounds of appeal and the possibility or not of an acquittal weigh in the consideration of whether release should be granted. [3] In this vein, I underline also the generic nature of the grounds involved to reduce the sentence.

If there is any success on the appeal from sentence, it does not appear likely that it would so drastically reduce the length of the incarceration imposed so as to militate in favour of interim release at this time. [ 20 ] Regarding condition b), there is nothing to indicate that the Applicant, if released, would not surrender himself when and if required. [ 21 ] Regarding the public interest, it is accepted that this is a two-prong consideration of (

i) public safety and (ii) maintaining confidence of the public in the judicial system. [ 22 ] Regarding public safety, the judgment on sentence at paragraph 30 refers to the Applicant’s problem with alcohol consumption as a mitigating factor but also that the Applicant downplays his drinking problem.

The judgment of conviction for an assault on a previous spouse indicates that the offence, like the present offences, was committed while the Applicant was inebriated. [4] [ 23 ] Given the propensity for violent acts over a relatively long period, the Applicant’s convictions for similar offences, absence of remorse and absence of therapy, the judge considered that the risk of reoffending is high. [5] The judge even notes evidence of violence towards the Applicant’s current spouse. [6] [ 24 ] I also underline the conviction for breach of conditions of attempting to call his former spouse while the current charges were pending. [ 25 ] In all of these circumstances, the concern for the public safety cannot be ignored even if the description of the “public” in this case could arguably be limited to the Applicant’s present and post spouses. [ 26 ] Concerning the confidence of the public in the judicial system, it is to be noted that the Applicant has been found guilty such that he no longer benefits from the presumption of innocence. [ 27 ] The offences involved extreme violence.

Some were committed while the victim was pregnant and in the presence of a child.

The impact on the victim both physical and psychological are considerable and were noted by the judge. [7] [ 28 ] I believe it safe to say that members of the public take a dim view of conjugal violence and that their confidence in the justice system would be eroded by the release of a repeat offender who received a substantial sentence where the grounds of appeal are not on their face strong and the sentencing judge concluded that there is a serious possibility that he would re-offend. [ 29 ] The Applicant’s attorney notes that if he is not released, considering statutory remission and parole eligibility, the carceral portion of the sentence could be served before an appeal is heard.

An accelerated timetable can alleviate this, and I note that the Respondent’s counsel undertakes to cooperate to obtain the transcripts of the testimony in first instance on an accelerated basis.

I am informed that one of three days has already been transcribed. [ 30 ] He could be eligible for release in several months – i.e. before the appeal could be heard. [ 31 ] Accordingly, the motion for interim release will be dismissed. * * * FOR ALL THE FOREGOING REASONS, THE UNDERSIGNED: Requête en prolongation du délai d'appel [ 32 ] GRANTS the motion for an extension of time to appeal; [ 33 ] TAKES cognizance of the Notice of appeal filed in the record and EXTENDS, as of today, the time limit for filing a Notice of Appeal;

Requête en autorisation d'appel d'une déclaration de culpabilité comportant des questions mixtes de fait et de droit et alléguant l'assistance inadéquate de l'avocat en première instance [ 34 ] GRANTS leave to appeal the judgment of the Cour du Québec, District of Gatineau (the Honourable Alexandra Marcil) of May 18, 2022; [ 35 ] ORDERS the parties, through counsel, to complete and file the Rule 61 form within 10 days; [ 36 ] PLACES the file on the roll of June 5, 2023 , in room Lamer at 9:30 a.m., to be pleaded without briefs, for a duration of 90 minutes ( 60 minutes for the Appellant; 30 minutes for the Respondent); [ 37 ] ORDERS the Appellant, after notification to the Respondent, to file with the Office of the Court, no later than March 30, 2023 , fives copies of the documents mentioned in

section 60 R.C.A.Q.C.M. and, if applicable, an argument of no more than 20 pages; [ 38 ] ORDERS the Respondent, after notification to the Appellant, to file with the Office of the Court, no later than April 30, 2023 , fives copies of an argument of no more than 20 pages; [ 39 ] ORDERS the parties, in accordance with sections 18 and 60 R.C.A.Q.C.M. , to file their argument drafted on good quality white letter paper (21.5 cm by 28 cm) with at least one and one-half spaces between the lines (except for quotations, which shall be single- spaced and indented).

The typeface shall be 12-point Arial font for the entire text. Exceptionally, 11-point Arial font may be used for quotations and 10-point Arial font may be used for footnotes. The margins shall be no less than 2.5 cm. The text shall be reproduced on one side only of each sheet; [ 40 ] ORDERS that the documents filed include a cover page and a table of contents with pages numbered consecutively; [ 41 ] ALLOWS the Appellant, as provided by the second paragraph of

section 60 R.C.A.Q.C.M. , to notify the duly completed questionnaire to the Respondent and file fives copies of the questionnaire with the Office of the Court, no later than 21 days before the date of the hearing of the motion for leave or the appeal; [ 42 ] ORDERS the parties to attach a technological version as a USB key to each copy of their documents filed in lieu of the brief. This version must permit keyword searches and include hyperlinks from the table of contents to the documents filed in lieu of the brief and from the argument to the schedules.

The USB key shall be identified in the same matter as a pleading (s. 12 R.C.A.Q.C.M. ); [ 43 ] REMINDS the parties that they may notify and file a book of authorities with the Office of the Court at least 30 days before the hearing (s. 46 R.C.A.Q.C.M. ). The book of authorities shall be prepared in accordance with

section 44 R.C.A.Q.C.M. Requête en autorisation d'appel de la sentence [ 44 ] REFERS the motion for leave to appeal the sentence imposed by the judgment of the Cour du Québec, District of Gatineau (the Honourable Alexandra Marcil) of November 21, 2022 to the panel that will hear the appeal from conviction on June 5, 2023 ; [ 45 ] DECLARES that the proceedings shall be undertaken, without briefs; [ 46 ] DECLARES that the time allotted is included in the appeal from conviction; [ 47 ] ORDERS the Appellant, after notification to the Respondent, to file with the Office of the Court, no later than March 30, 2023 , fives copies of the documents mentioned in

section 60 R.C.A.Q.C.M . and, if applicable, an argument of no more than 15 pages ; [ 48 ] ORDERS the Respondent, after notification to the Appellant, to file with the Office of the Court, no later than April 30, 2023 , fives copies of an argument of no more than 15 pages ; [ 49 ] ORDERS the parties, in accordance with sections 18 and 60 R.C.A.Q.C.M . , to file their argument drafted on good quality white letter paper (21.5 cm by 28 cm) with at least one and one-half spaces between the lines (except for quotations, which shall be single- spaced and indented).

The typeface shall be 12-point Arial font for the entire text. Exceptionally, 11-point Arial font may be used for quotations and 10-point Arial font may be used for footnotes. The margins shall be no less than 2.5 cm. The text shall be reproduced on one side only of each sheet; [ 50 ] ORDERS that the documents filed include a cover page and a table of contents with pages numbered consecutively; [ 51 ] ALLOWS the Appellant, as provided by the second paragraph of

section 60 R.C.A.Q.C.M . , to notify the duly completed questionnaire to the Respondent and file fives copies of the questionnaire with the Office of the Court, no later than 21 days before the date of the hearing of the motion for leave or the appeal; [ 52 ] ORDERS the parties to attach a technological version as a USB key to each copy of their documents filed in lieu of the brief. This version must permit keyword searches and include hyperlinks from the table of contents to the documents filed in lieu of the brief and from the argument to the schedules.

The USB key shall be identified in the same matter as a pleading (s. 12 R.C.A.Q.C.M . ) ; [ 53 ] REMINDS the parties that they may notify and file a book of authorities with the Office of the Court at least 30 days before the hearing (s. 46 R.C.A.Q.C.M. ). The book of authorities shall be prepared in accordance with

section 44 R.C.A.Q.C.M ; [ 54 ] TAKES cognizance of the offer of the Respondent’s counsel to assist on obtaining transcripts on an accelerated basis .

Requête pour mise en liberté pendant l'appel [ 55 ] DISMISSES the motion for interim release pending appeal. MARK SCHRAGER, J.A.