2020 QCCA 1253, 2020 QCCA 1253

Chandroo c. R. 2020 QCCA 1253 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007359-209 ( 500-01-175985-180 , 500-01-195622-193) MINUTES OF HEARING DATE: September 22, 2020 THE HONOURABLE MARK SCHRAGER, J.A. PETITIONER COUNSEL Richard Chandroo Mtre Simon Leduc Lebeuf By videoconference RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre Sarah Audrey Daigneault ( Director of Criminal and Penal Prosecutions ) By videoconference DESCRIPTION: Motion for interim release ( Art. 679 (1) Cr.C . & art. 53 R.C.A.Q.C.M.) .

Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING 10:56 Commencement of the hearing. Identification of counsel. Submissions by Mtre Leduc. 11:02 Submissions by Mtre Daigneault. 11:18 Reply by Mtre Leduc. 11:23 BY THE JUDGE: Judgment – see page 3. 11:25 Conclusion of the hearing.

Mélanie Camiré, Clerk at the hearing JUDGMENT [ 1 ] I am tasked with a bail application pending appeal of the Petitioner convicted of several frauds. [1] [ 2 ] On June 18, 2020, Petitioner was found guilty by the Court of Quebec, District of Montreal (the Honourable Salvatore Mascia) on several counts of fraud involving four victims, the circumstances of which, the judge summarized as follows in the judgment sentencing Petitioner to a total of ninety months incarceration: [2] In a nutshell, the victims all lent money to the accused in order to help him recover his “fair share” of his late grandfather’s estate.

Unbeknownst to the victims, however, the estate had been liquidated several years earlier. Though he had received his “fair share” of the inheritance, the accused continued to perpetuate the lie that he stood to inherit monies or properties that no longer existed. [3] The accused’s offending was sustained over a long time.

It was planned, deliberate and deceitful, requiring for its implementation the recounting of many lies, the fabrication of forged documents and the personification (over the phone) of various individuals. [4] Through his fraudulent tactics, the accused was able to swindle a little over $900,000 from his victims: $82,000 from the Daniels, $19,500 from James Andrews and circa $800,000 from Nikola Rajcic. As we shall see, the offences perpetrated by the accused had a significant impact on the lives of the victims given their personal circumstances (i.e., age, health and financial situation).

Some of them imperiled their own financial stability by borrowing on their credit card to help the accused recover his supposed inheritance. [ 3 ] During the fifty pages of the judgment, the judge describes the modus operandi of Petitioner and highlights that he is a liar, a confidence man or trickster (para. [51]) without conscience or remorse for his wrong-doings. [ 4 ] Significantly for present purposes the judge indicates (page 23) that the accused repeated the same pattern of deceit while out on bail pending appeal of a first conviction (which he won in 2018 based on an error of law – see 2018 QCCA 1429 ).

Nevertheless, as the judge notes, the reoffending occurred at a time when Petitioner was a convicted felon. [2] Indeed, when the accused defrauded one victim (Mr. Rajcic) of $800,000, he was facing charges for other frauds (para. [74] of the sentencing judgment). [ 5 ] The judge notes a number of aggravating circumstances (para. [99] of the sentencing judgment) including Petitioner’s criminal record, the advanced age and invulnerability of his victims and his incorrigible nature. The fact of conviction was noted as having no deterrent effect on him (para. [103] of the sentencing judgment).

There is no indication of any remorse (para. [100] of the sentencing judgment), although Petitioner maintains his innocence, as is his right and he has appealed his conviction. [ 6 ] Petitioner has twice been released on bail by judges of this Court in 2017 ( 2017 QCCA 399 ) and in 2019 ( 2019 QCCA 1944 ). In 2017, the application was unopposed. In 2019, my colleague did not have the benefit of the detailed exposé of the present sentencing judgment, particularly the fact that one of the frauds was perpetrated (at least in part) while Petitioner was released on bail.

Moreover, the sentence for that fraud was fifteen months so that the judge noted that in the absence of release, the greater part of the sentence might well be served by the time judgment would be rendered on the appeal. Given this and that Petitioner is not violent, the judge concluded that the public’s confidence would not be eroded by Petitioner’s release.

I think the situation has evolved and is considerably different now for the reasons that will follow. [ 7 ] Considering the criteria for release pending appeal under section 679(3) Cr.C . , the grounds of appeal raised against the conviction do not appear frivolous. This is a low threshold and, despite the representations of Respondent, appears satisfied in the present instance at least at this stage. [3] [ 8 ] There are no tangible facts to indicate that Petitioner is a flight risk although he now faces many years of incarceration. His family is here but there is some connection with Trinidad and Tobago.

On balance, however, I am prepared to conclude that he is not a flight risk so that section 679(3) (

b) Cr.C . is satisfied. [ 9 ] The third criterion of public interest is an impediment to Petitioner’s release. Here I must consider the effect of Petitioner’s release both on the security of the public and its confidence in the judicial system. [ 10 ] It is true that Petitioner does not appear to pose a risk of physical harm to anyone. Also, there is no indication that he did not previously respect the conditions of release imposed by the courts, subject however to that stated below.

However, his incorrigible pattern of fraudulent behaviour described by the judge is a risk to the financial and emotional well-being of other potential victims. As the judge concludes based on the facts, Petitioner is incorrigible and does not appear deterred by the judicial process. He has caused considerable long lasting harm to his victims. He no longer benefits from the presumption of innocence. I am thus of the opinion that his release poses a risk to public security.

[ 11 ] In such regard, the risk of Petitioner re-offending cannot be ignored particularly given the fact that, as indicated above, the fraud of Mr. Rajci of $800,000 was ongoing while Petitioner was on bail. As such, he did not keep the peace, though no such formal complaint has been made. The sentence imposed for this fraud was 75 months incarceration. [ 12 ] Considering the second branch of the 679(3)

c) Cr.C. criterion, I am of the view that a properly informed public knowing that the appeal is an integral part of the judicial process would have its confidence eroded by Petitioner’s release. [4] The sentencing judge’s description and consideration of the circumstances of Petitioner’s crimes gives rise to a sentence of 90 months. At present, there is no appeal of the sentence, although the conviction is appealed. The severity and moral blameworthiness are high.

At the risk of repetition, Petitioner offended while released on bail. [ 13 ] While each case turns on its own facts, the case law recognizes that the release of non-violent offenders, particularly fraudsters, can be offensive to the public interest criterion of section 679(3)

c) Cr.C. [5] [ 14 ] I have accordingly concluded that of section 679(3)

c) Cr.C. has not been satisfied so that release will not be granted. FOR ALL THESE REASONS, THE UNDERSIGNED: [ 15 ] DISMISSES the motion for interim release. MARK SCHRAGER, J.A.