2018 QCCA 134, 2018 QCCA 134

R. c. Diabo 2018 QCCA 134 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006604-175, 500-10-006605-172 (760-73-001164-157),(760-73-001023-130) MINUTES OF THE HEARING DATE: January 31, 2018 THE HONOURABLE MARK SCHRAGER, J.A. N o : 500-10-006604-175 (760-73-001164-157) PETITIONER COUNSEL HER MAJESTY THE QUEEN Mtre GUILLAUME LEMAY Mtre MARIE-ÈVE TRUDEL (Service des poursuites pénales du Canada) RESPONDENT TAYLOR JOSHUA DIABO ABSENT AND NOT REPRESENTED

N o : 500-10-006605-172 (760-73-001023-130) PETITIONER COUNSEL HER MAJESTY THE QUEEN Mtre GUILLAUME LEMAY Mtre MARIE-ÈVE TRUDEL (Service des poursuites pénales du Canada) RESPONDENTS COUNSEL JOSEPH KIRBY DYLAN DIABO Mtre EMMANUELLE RHEAULT (Emmanuelle Rheault avocate) DESCRIPTION: Motions to appeal from a judgment rendered on November 30, 2017, by the Honourable Marie-Chantal Doucet of the Quebec Court, District of Beauharnois. (Section 676(1)

d) Cr.C. and 21 et seq . R.C.A.C.M. ) Motions to suspend the execution of the sentences. (Section 683(5) a ),

e) Cr.C. ) Clerk: Mihary Andrianaivo Courtroom: RC.18 HEARING 9:35 Commencement of the hearing. Identification of counsel. The two cases, 500-10-006604-175 and 500-10-006605-172 are heard altogether. Submission by Mtre Guillaume Lemay. 9:47 Submission by Mtre Emmanuelle Rheault. 9:59 BY THE JUDGE: Judgment relating to case number 500-10-006604-175 – See page 4. 10:01 Exchanges between the Judge and the Counsel. 10:05 BY THE JUDGE: Judgment relating to case number 500-10-006605-172 – See page 6. 10:09 End of the hearing. Mihary Andrianaivo Clerk BY THE JUDGE

JUDGMENT 500-10-006604-175 On the motion for leave to appeal from a sentence [ 1 ] Seeing the motion for leave to appeal from a

summary conviction sentence, the affidavits and the exhibits; [ 2 ] Seeing the default to appear of the Respondent; [ 3 ] Considering Section 676(1)

d) and

(1.1) Cr.C. ; [ 4 ] Seeing the similar motion for leave to appeal in the file of Her Majesty The Queen v. Joseph Kirby and Dylan Diabo (500-10- 006605-172); [ 5 ] Seeing that the latter file proceeded by way of indictment; [ 6 ] Seeing the common hearing on sentence; [ 7 ] Seeing the issues raised that merit consideration by three judges of the Court of Appeal.

THE UNDERSIGNED: [ 8 ] GRANTS the motion in part. [ 9 ] REFERS the motion for leave to appeal to be adjudicated by a bench, composed of three judges who will also hear the appeal and permits the pleading of the matter of leave, together with the merits of the appeal at one and the same time. [ 10 ] ORDERS the petitioner, after having served a copy upon the respondent, to file at the Office of the Court no later than March 2, 2018, five copies of the documents that ordinarily constitute Schedules I, II and III of the brief, including the present judgment, a book of authorities and, if applicable, an argument no longer than 10 pages in length; [ 11 ] DIRECTS the parties’ attention to Chief Justice’s notice of July 30, 2014, encouraging the filing with their paper version documents a technologic version that must be in PDF or Word format to enable key-word search.

The USB drive is the format preferred by the Court, but CD / DVD-ROM are also accepted. [ 12 ] REFERS the file to the Master of the Rolls to determine the date of a hearing of 30 minutes once the memoranda are filed with the Court; [ 13 ] ORDERS that the matter be heard at one and the same time as the motion and the appeal in the file of Her Majesty The Queen v. Joseph Kirby and Dylan Diabo (500- 10- 006605-172).

On the motion to suspend the sentence : [ 14 ] Seeing the motion to suspend the sentence; [ 15 ] Seeing the filing of the motion for leave to appeal and the referral thereof to a bench of the Court; [ 16 ] Considering Section 683(5) a ),

e) Cr.C. ; THE UNDERSIGNED: [ 17 ] GRANTS the motion. [ 18 ] SUSPENDS the Respondent’s obligation to pay the fine and to abide by the probation order until final determination of the appeal.

500-10-006605-172 On the motion for leave to appeal from a sentence [ 19 ] Seeing the motion for leave to appeal from a sentence, the affidavit and the exhibits; [ 20 ] Considering Section 676(1)

d) Cr.C. ; [ 21 ] Seeing the similar motion granted by the undersigned by default in record number 500-10-006604-175 in Her Majesty The Queen v.

Taylor Joshua Diabo ; [ 22 ] Considering that the issues raised merit consideration by a bench of three judges; THE UNDERSIGNED : [ 23 ] GRANTS in part the motion for leave to appeal from a sentence. [ 24 ] REFERS the motion for leave to appeal to a bench of three judges. [ 25 ] PERMITS the Parties to plead the merits of the appeal at the same time as the motion. [ 26 ] ORDERS the petitioner, after having served a copy upon the respondent, to file at the Office of the Court no later than March 2, 2018, five copies of the documents that ordinarily constitute Schedules I, II and III of the brief, including the present judgment, a book of authorities and, if applicable, an argument no longer than 10 pages in length; [ 27 ] ORDERS the respondents, after serving a copy upon the petitioner, to file at the Office of the Court, no later than April 6, 2018, five copies of the questionnaire, a book of authorities, and if applicable, an argument no longer than 10 pages in length; [ 28 ] DIRECTS the parties’ attention to Chief Justice’s notice of July 30, 2014, encouraging the filing with their paper version documents a technologic version that must be in PDF or Word format to enable key-word search.

The USB drive is the format preferred by the Court, but CD / DVD-ROM are also accepted. [ 29 ] REFERS the file to the Master of the Rolls to determine the date of a hearing of 60 minutes in duration; [ 30 ] ORDERS that the appeal be heard at one and the same time and by the same bench as the appeal in case number 500-10- 006604-175, Her Majesty The Queen v. Taylor Joshua Diabo ; On the motion to suspend the sentence : [ 31 ] Seeing the motion for suspension of the sentence; [ 32 ] Seeing the referral of the motion for leave to appeal to the Court; [ 33 ] Considering Section 683(5) a ),

e) Cr.C. ; THE UNDERSIGNED : [ 34 ] GRANTS the motion to suspend the sentence. [ 35 ] SUSPENDS the Respondents’ obligations to pay the fine and to abide by the probation order until final determination of the appeal. MARK SCHRAGER , J.A.