2023 QCCA 1556, 2023 QCCA 1556

Marlin c. R. 2023 QCCA 1556 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-007960-238 ( 760-01-097419-201 ) 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 directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way.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: December 8, 2023 THE HONOURABLE STEPHEN W. HAMILTON, J.A. APPLICANT COUNSEL Kenneth Marlin Mtre Vincent R.

Paquet ( Desjardins Bolduc ) RESPONDENT COUNSEL HIS MAJESTY THE KING Mtre KARIM AINMELK ( Directeur des poursuites criminelles et pénales ) By videoconference DESCRIPTION: Motion for leave to appeal on a ground involving a question of mixed law and fact ( Section 675(1) (ii) C.cr and

section 23 ss and 36

b) Rules in Criminal matters ) . Motion for leave to appeal ( Section 679(1) C.cr . and

section 31 R.C.a.Q.m.c .) . Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING Continuation of the hearing held on December 7, 2023. The parties were excused from appearing in Court. BY THE COURT: Judgment – see page 3. Mélanie Camiré, 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 directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way.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 ] On January 20, 2023, the Appellant was convicted of multiple sexual offences committed between 1980 and 1991 against five boys. He was sentenced on November 30, 2023, to a total of 14 years of incarceration. He is presently detained. [ 2 ] I am seized with two motions. [ 3 ] The first relates to his grounds of appeal.

On February 17, 2023, he filed a notice of appeal against his conviction in which he raised nine grounds of appeal involving questions of law. He now asks for leave to appeal on an additional ground involving a question of mixed law and fact and suggests that the motion be deferred to the panel that will hear his appeal. [ 4 ] The Respondent agrees with this suggestion, and I will so order. [ 5 ] The second motion is a motion for interim release during the appeal, pursuant to

Section 679 of the Criminal Code . This motion is contested by the Respondent. *** [ 6 ] The conditions for granting interim release during an appeal are set out in subsection 679(3) Cr.C . : 679

(3) In the case of an appeal referred to in paragraph (1)(

a) or (c), the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes that: 679

(3) Dans le cas d’un appel mentionné à l’alinéa

(1) a) ou c), le juge de la cour d’appel peut ordonner que l’appelant soit mis en liberté en attendant la décision de son appel, si l’appelant établit à la fois : (

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

a) 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 ; et (

c) his detention is no necessary in the public interest.

c) sa détention n'est pas nécessaire dans l'intérêt public. [ 7 ] The third condition, the public interest, has two components, public safety and public confidence in the administration of justice. [1] [ 8 ] In paragraph 515(10)(

c) Cr.C. , Parliament enumerated factors to be considered by the judge in assessing whether the detention of the accused during trial is necessary to maintain confidence in the administration of justice:

(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(10) Pour l’application du présent article, la détention d’un prévenu sous garde n’est justifiée que dans l’un des cas suivants : […] […] (

c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including:

c) sa détention est nécessaire pour ne pas miner la confiance du public envers l’administration de la justice, compte tenu de toutes les circonstances, notamment les suivantes : (

i) the apparent strength of the prosecution’s case, (

i) le fait que l’accusation paraît fondée, (ii) the gravity of the offence, (ii) la gravité de l’infraction (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iii) les circonstances entourant sa perpétration, y compris l’usage d’une arme à feu,

(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. (iv) le fait que le prévenu encourt, en cas de condamnation, une longue peine d’emprisonnement ou, s’agissant d’une infraction mettant en jeu une arme à feu, une peine minimale d’emprisonnement d’au moins trois ans. [ 9 ] The Supreme Court in Oland suggested that these factors are also relevant to the analysis of public confidence at the appeal level.

They must be adapted to take into consideration the fact that the Appellant is no longer an accused person benefitting from the presumption of innocence, but has been convicted of the offences with which he was charged. [2] *** [ 10 ] The Respondent does not contest the first two conditions or the public safety component of the third condition, with good reason.

I will briefly review those conditions. [ 11 ] The first condition, that the appeal is not frivolous, is a very low bar. [3] The Appellant is not required to show that the grounds of appeal have a reasonable chance of success, but only that they are arguable. I have reviewed the grounds of appeal and I am satisfied that this condition is met. [ 12 ] The second condition requires the Appellant to demonstrate that he will surrender himself into custody in accordance with the terms of the order and that he will not flee the jurisdiction. [4] It is also met.

The Appellant first appeared in court on February 4, 2020, and he was released from custody with conditions a few days later. When he was arrested in connection with the fifth complainant two years later, he was released on his promise to appear. He remained at liberty throughout the proceedings in first instance, even after his conviction, until he was sentenced on November 30, 2023. He has always appeared in court when required and he has not been convicted of any breach of conditions. Moreover, he is 66 years old and he has a known residence where he lives with his wife.

The Respondent does not suggest that he is a flight risk. [ 13 ] As for the third condition, the Respondent does not argue that the Appellant is a risk to public safety, again with good reason. Although the crimes were very serious, they occurred more than 30 years ago. There is nothing to suggest that he has reoffended since 1991 or that there is any risk that he will do so.

Any residual risk can be minimized with appropriate release conditions. [ 14 ] The Respondent relies essentially on the fact that the Appellant has been convicted of very serious offences and has been sentenced to 14 years incarceration to argue that public confidence in the administration of justice will be shaken if the Appellant is released during his appeal.

I do not agree. [ 15 ] Public confidence in the administration of justice is to be measured through the eyes of a reasonable member of the public, “who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values”. [5] [ 16 ] When assessing the impact of the interim release of an appellant on public confidence, the gravity of the offences of which the appellant was convicted is without question an important factor. [ 17 ] Moreover, it is clear that the offences in this case are very serious.

The Appellant was convicted of repeated sexual offences over an 11-year period against five boys aged between 7 and 15 years old, with respect to whom the Appellant was in a position of trust and authority. The complainants have suffered deep psychological trauma that is still damaging their lives today. The seriousness of the offences is reflected in the 14-year sentence imposed by the judge. Public confidence may be shaken if a person convicted of very serious offences is able to delay serving his sentence merely by filing an appeal. [ 18 ] However, the analysis does not stop there.

The gravity of the offences is not sufficient in and of itself to refuse interim release. [6] A reasonable member of the public would also consider the seriousness of the grounds of appeal, as well as any public safety or flight concerns: [50] That said, where the applicant has been convicted of murder or some other very serious crime, the public interest in enforceability will be high and will often outweigh the reviewability interest, particularly where there are lingering public safety or flight concerns and/or the grounds of appeal appear to be weak: […]. [51] On the other hand, where public safety or flight concerns are negligible, and where the grounds of appeal clearly surpass the “not frivolous” criterion, the public interest in reviewability may well overshadow the enforceability interest, even in the case of murder or other very serious offences. [7] [ 19 ] The grounds of appeal raised by the Appellant appear to be serious.

The first two grounds of appeal relate to the loss or destruction of evidence gathered in the initial investigation that took place between 1994 and 1996. The Appellant argues that the judge imposed the wrong burden on him and conflated the existence of the violation of his rights with the analysis of the appropriate remedy for the violation. The next three grounds relate to the dismissal of the Appellant’s Jordan motion. The total delay between the charge and the anticipated end of the trial was over 31 months, well beyond the 18-month limit.

The Appellant challenges the characterization of two specific periods and the failure of the judge to hear representations with respect to one of those periods, as well as the judge’s analysis of the complexity of the matter. Finally, there are five grounds of appeal (including the new ground) relating to the judgment on the merits, including the failure to consider the evidence of Claude Ruel as to one complainant’s motive to fabricate, the dismissal of the

Appellant’s evidence on the basis that he is contradicted by other witnesses, the assessment of the credibility of the complainants, which the Appellant alleges was not in accordance with the Court’s judgment in Foomani , [8] and the unreasonableness of the verdict. [ 20 ] In my view, the present case falls within the circumstances described in paragraph 51 of Oland : the Appellant was convicted of very serious offences, but the public safety and flight concerns are negligible and the grounds of appeal are serious.

In those circumstances, I am of the view that a reasonable member of the public would understand that releasing the Appellant under strict conditions during his appeal adequately protects the public, but also means that, if he is successful in his appeal, he will not have been incarcerated during his appeal for no valid reason.

If he is unsuccessful in his appeal, he will serve his sentence then. [ 21 ] I adopt by way of conclusion my colleague Justice Doyon’s conclusion in J.V. , [9] when he ordered the interim release of an appellant despite the gravity of the offences in circumstances very similar to the present case: [13] Par contre, d'autres facteurs peuvent contrebalancer un tel constat. Ainsi, les infractions se sont terminées en 1988 soit il y a vingt ans, et l'on ne fait état d'aucun incident survenu depuis impliquant l'appelant et sa fille.

Le passage du temps ne peut être exclu de l'analyse. De plus, l'appelant a été remis en liberté au poste de police, dès son arrestation, et n'a par la suite enfreint aucune des conditions alors imposées, notamment celle de ne pas communiquer directement et indirectement avec sa fille. Enfin, l'âge de l'appelant, qui constitue l'une des circonstances me permettant de conclure à l'absence de dangerosité pour le public et à un risque minime de récidive, s'il en existe un, est également pertinent au regard de la perception du public face à sa mise en liberté.

Voilà un ensemble de facteurs et de circonstances qui permettront à un public informé, connaissant les règles applicables, de comprendre et d'accepter que l'appelant soit mis en liberté. S'il réussit dans son appel, il n'aura pas été privé inutilement de sa liberté entre temps; s'il échoue, il purgera alors sa peine et la société aura néanmoins été adéquatement protégée dans l'intervalle.

Bref, l'appelant me convainc également que sa détention n'est pas nécessaire pour préserver la confiance du public dans l'administration de la justice. [ 22 ] I will, however, modify the conditions proposed by the Appellant to provide for a longer curfew, to ensure public safety and bolster public confidence.

FOR THESE REASONS, THE UNDERSIGNED: [ 23 ] DEFERS the Applicant’s Motion for Leave to Appeal on a Ground Involving a Question of Mixed Law and Fact to the panel that will hear the Appellant’s appeal from his conviction; [ 24 ] AUTHORIZES the parties to argue the additional question raised in the Motion for Leave to Appeal in their briefs; [ 25 ] GRANTS the Appellant’s Requête pour mise en liberté provisoire ; [ 26 ] ORDERS the Appellant’s release from custody on the following conditions: 1. Maintain the personal deposit of $10,000 and the surety deposit made by Roberta MacHardy in the amount of $2,500; 2.

Keep the peace and be of good behaviour; 3. Reside at [...] in Hemmingford, Quebec, [...]; 4. Not change addresses without the prior authorization of this Court or one of its judges; 5. Be at his address at all times between 8:00 pm and 8:00 am, except for a medical emergency for himself or his spouse 6. Not be within 2 kilometers of any dwelling-house where X, Y or Z ordinarily reside or within 500 meters of any dwelling-house where A or B ordinarily reside; 7. Not be at the workplace of A, B, X, Y or Z; 8. Not communicate or attempt to communicate in any way with A, B X, Y or Z; 9.

Not be in the physical presence of A, B, X Y or Z; 10. Not be in the presence of minors, except for his immediate family or except in the company of an adult responsible for said minors

who is aware of the present conditions; 11. Not to be in a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare center, schoolground, playground or community center; 12. Not seek, obtain or continue any employment, whether remunerated or not, and not volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years; 13.

Not possess or carry, for any reason, offensive or restricted weapons, or imitation weapons, including starting pistols and pellet guns, firearms, cross-bows, prohibited weapons, restricted weapons, prohibited devices, ammunition, prohibited ammunition, explosive substances, knives (except in restaurants and for a legitimate purpose) or edged weapons; 14. Hand over any passport within 72 hours of his release at the clerk’s office of the Salaberry-de-Valleyfield Courthouse and not apply to obtain a passport; 15.

Surrender to the prison authorities within 48 hours of the withdrawal of the appeal or the judgment of the Court dismissing the appeal, as the case may be, or before the expiration of such other delay as may be fixed by the Court or one of its judges; [ 27 ] ORDERS that an undertaking to adhere to these conditions be signed by the Appellant before a justice of the peace assigned to such matters before he is released. STEPHEN W. HAMILTON, J.A.