2022 QCCA 230, 2022 QCCA 230

Rezayee c. R. 2022 QCCA 230 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007595-216 ( 500-01-189807-198 ) MINUTES OF HEARING DATE: February 11, 2022 THE HONOURABLE CHRISTINE BAUDOUIN, J.A. APPELLANT COUNSEL Merajuddin Rezayee Mtre Gaétan Bourassa By videoconference RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre MARIANNA FERRARO ( Director of Criminal and Penal Prosecutions ) By videoconference DESCRIPTION: Motion for judicial release pursuant to appeal (Sections 679(1)a), 679(3) and 515(10) Cr.C . 31 and 51 R.C.A.Q.C.M .).

Clerk at the hearing : René Gutknecht Courtroom: RC-18 HEARING 11:10 Commencement of the hearing. Identification of counsel. 11:11 Submissions by Mtre Bourassa. 11:17 Submissions by Mtre Ferraro. 11:18 BY THE JUDGE: Judgment – see page 3. 11:20 Conclusion of the hearing.

René Gutknecht, Clerk at the hearing JUDGMENT [ 1 ] On May 7, 2021, the Applicant was found guilty of one count of sexual assault (art. 271 Cr.C. ) committed on a client in the back-seat of Uber vehicle, while he was the driver. [ 2 ] The Applicant filed a Notice of appeal from his conviction on June 7, 2021, on a ground that involves a question of law alone.

He submits that the trial judge erred in law by relying on stereotypes and impermissible inferences about the complainant’s likelihood to initiate sexual contact to find him guilty. [ 3 ] On February 9, 2022 the Applicant was sentenced to serve a jail term of 6 months less a day and was placed under the authority of a probation order for a period of 24 months. [ 4 ] The Applicant wants to be released from custody pending the determination of his appeal on conviction, the whole in accordance with art. 679 Cr.C. [ 5 ] The Respondent does not oppose Applicant’s motion and agrees with the terms and condition of the release proposed therein, which in fact were jointly submitted. [ 6 ] The Applicant submits his detention is not necessary to ensure public confidence in the administration of justice in view of the facts that the probability he will commit a criminal offence if released is very low, that he has no previous conviction, has a legitimate and remunerated job and is the breadwinner of his family.

He further adds he remained in liberty throughout the proceedings and never breached any of the conditions imposed. [ 7 ] Considering the content of Applicant’s motion to be released from custody pending the determination of his appeal on conviction, his solemn affirmation and all other relevant factors, I find the Applicant has met his burden of proof with respect of paragraph 679 (3) Cr.C . [1] First, the ground of appeal is not frivolous, although I do not express any opinion on its chances of success in appeal.

Second, I have no reason to believe the Applicant will not abide by the terms of the order and more specifically that he will not surrender himself into custody in accordance with the terms of the order.

Thirdly, I am satisfied that his detention is not necessary in the public interest. [ 8 ] Finally, as the attorneys stressed out during the hearing, because of the length of the sentence imposed, it appears that without the release sought, all or a significant portion of the sentence will be served before the appeal can be heard and decided by the Court. [2] FOR THESE REASONS, THE UNDERSIGNED : [ 9 ] GRANTS the Applicant’s Motion for judicial release pending the determination of his appeal on conviction; [ 10 ] ORDERS the release of the Applicant, Merajuddin Rezayee, until the determination of the present appeal, and on the following conditions:

a) live at [...], Brossard, until March 4, 2022;

b) live at [...], as of March 4, 2022;

c) subsequently, request the authorization of the Court before any change of address;

d) not to communicate, directly or indirectly, with the victim J. C.;

e) not be within a radius of 100 meters from any place of residence or workplace of J. C.;

f) report once every month to CO Sud, in Montreal, i.e. on Fridays, between 9:00 a.m. and 5:00 p.m., starting February 18, 2022;

g) not to leave Canada without prior authorization from the Respondent;

h) not be employed as a driver for Uber, taxi or any other form of personal transportation;

i) to surrender to the prison authorities within 48 hours of the pronouncement of the judgment of this Court dismissing his appeal, if any, or before the expiration of any period which may be fixed by this Court;

j) if his appeal is withdrawn, immediately surrender to the prison authorities. [ 11 ] ORDERS that such undertaking of these conditions be given before a justice of the peace assigned to such matters. CHRISTINE BAUDOUIN, J.A.