R. v. Gill, 2016 QCCA 1809

Xanthoudakis c. R. 2016 QCCA 1809COUR D’APPEL CANADAPROVINCE OF QUEBECREGISTRY OF MONTREAL No : 500-10-006187-163(500-01-051050-117) DATE : November 8, 2016 PRESIDING: THE HONOURABLE MARIE-FRANCE BICH, J.A. JOHN XANTHOUDAKISAPPELLANT – Accusedv. HER MAJESTY THE QUEENRESPONDENT – Prosecutrix JUDGMENT [1] On June 2, 2016, in Montreal, a jury presided over by the Honourable Mr. Justice Pierre Labrie of the Superior Court found theappellant guilty of one count of fraud (para. 380(1)

a) Cr.C.), eight counts of forgery (para. 367a) Cr.C.) and eight counts of using aforged document (para. 368(1)

c) Cr.C.). On June 30, 2016, the appellant filed a notice of appeal and, on July 20, 2016, an amendedversion of said notice. In the meantime, on July 6, 2016, Labrie J. sentenced the appellant to 7 years and 11 months of imprisonment (i.e.8 years minus a 30-day credit for time spent in remand custody), plus the victim surcharge on all counts.[1] An application for leave toappeal the sentence was referred to the Court to be heard concomitantly with the appeal of the verdict.[2] [2] Pursuant to para. 679(1)

a) and subs. 679(3) Cr.C., the appellant, who is currently detained at the Ste-Anne-des PlainesRegional Reception Centre, seeks to be released pending the determination of his appeal of the verdict. The respondent contends that hisapplication should be dismissed since it does not fulfil the conditions set out in subs. 679(3) Cr.C.: 1° the grounds of appeal outlined inthe amended notice of appeal and “motion for judicial interim release” are frivolous and doomed to fail; 2° the appellant’s continueddetention is in the public interest.

Although this was not its main submission, the respondent also raised the possibility that the appellantmight not surrender into custody if his appeal is dismissed, but could flee the country if released, now that he has been found guilty ofthe charges laid against him. [3] I am not convinced by the respondent’s arguments and, on the contrary, I am of the view that the appellant has demonstratedthat he satisfies the conditions set out in subs. 679(3) Cr.C. [4] Grounds of appeal (para. 679(3)

a) Cr.C.). As my colleague Doyon J.A. wrote in an oft-cited judgment:[3] [7] Par ailleurs, le requérant n’a pas à prouver le bien-fondé de ses moyens d’appel. Il lui suffit d’établir que les questions soulevéessont défendables : R. c. Garneau, (QC CA), REJB 1997-04154, (C.A.), et il n’a pas à démontrer que ses moyens ont de fortes chances de succès : R. c. S. (J.T.) (1996), 1996 ABCA 374 , 4 C.R. (5th) 19 (C.A. Alta). [8] Comme le souligne le juge Rochon dans R. c. Duhamel, (QC CA), REJB 2002-35700 (C.A.), il estinapproprié pour le juge saisi d’une telle requête de se prononcer sur le fond du dossier.

Par contre, il doit répondre à la question de lafutilité de l’appel, puisque cette question fait

partie des critères à considérer, sans, bien entendu, lier de quelque façon la formation quientendra le pourvoi. Je n’ai donc pas à me prononcer sur la valeur réelle des moyens d’appel, ce qui relève des juges du fond, maisuniquement sur la futilité de ces moyens.[4] [5] More recently, in R. v. Gill,[5] Dickson J.A. wrote that “[t]he term "frivolous" has been described as "trifling with the court orwasting its time, or if the appeal is not capable of reasoned argument", R. v.

Dhanda, 2003 BCCA 550 at para. 19; "doomed to failure" or"devoid of merit", 2001 BCCA 749 at para. 5; and having "no possibility of success", R. v. Hanna, (BC CA), [1991]B.C.J. No. 2551 (C.A.)”. [6] In the present case, of the three grounds of appeal set forth in the amended notice of appeal, the first one is certainly seriousenough in this post-Jordan[6] era and deserves to be examined by the Court. The recent judgment in Béliveau v.

R.,[7] which applies the“transitional exceptional circumstance” recognized by the Supreme Court in Jordan (paras. 93 and 95 and ff.), does not undermine theappellant’s ground of appeal. On the contrary, it illustrates the significance of the argument. It might not be successful in the end, but thisdetermination will ultimately be made by a panel of this Court.

Suffice it to say that this ground of appeal, which rests on theunreasonableness of the delay between the date on which the charges were laid and the end of the trial, is not frivolous. [7] The other grounds of appeal (insufficiency of the judge’s instructions and inadequate assistance to the jury; capability ofmembers of the jury; insufficiency of the Vetrovec warning) are not frivolous either.

[8] I will note in passing that the parties argued the point as if they were pleading the appeal itself. I would respectfully remindthem that, while judicial interim release is a serious matter, efforts to substantiate or challenge the grounds of appeal at this stage shouldremain consistent with and proportionate to the nature of the test established by para. 679(3)

a) Cr.C., as interpreted and applied by a longline of cases all across Canada. [9] The appellant will surrender himself into custody in accordance with the terms of the order (para. 679(3)

b) Cr.C.). Theappellant has always come to court when ordered to do so, and has not fled the country despite having traveled quite extensively aroundthe world while on bail (with the explicit consent of the authorities). There is no serious indication that, now that he has been foundguilty, he will not surrender when ordered to do so or will try to escape to another country pending the determination of his appeal. Asnoted in the sentencing judgment,[8] he has abided by his bail conditions since the day they were imposed upon him by the Court ofQuebec (and varied from time to time).

The breaches alleged in the affidavit of Sergeant Jean-Luc Lavergne dated August 16, 2016, aretrivial, if they are breaches at all, and the appellant has convincingly explained the situation in his own affidavit dated October 4, 2016.The evidence before me does not show any foreseeable risk of flight and the fact that the appellant, if released, would be under the closesurveillance of the police force and under strict release conditions would provide sufficient guarantee against such risk. [10] The appellant’s detention is not necessary in the public interest.

Fulfilling the first two conditions of subs. 679(3) Cr.C. (theappeal is not futile and the appellant will surrender into custody when required) is not sufficient however to secure release pending thedetermination of the appeal. Detention must not be necessary in the public interest. With regard to this third condition, I wrote thefollowing in O'Reilly v.

R.:[9] [7] I am also satisfied that the petitioner's motion for interim release meets the third condition set out in ss. 679(3) in that hisdetention is not necessary in the public interest, which is to be measured according to the possibility of a threat to public security and thenecessity to maintain public confidence in the administration of justice: [12] Ainsi que l'enseigne une jurisprudence constante, cette condition “vise à la fois la protection et la sécurité du public, de mêmeque la confiance du public envers l'administration de la justice, eu égard à l'ensemble des circonstances du dossier” (Takri c.

R., 2010QCCA 1064, paragr. 11). Dans le même sens, voir par exemple : Divito c. Canada (Ministre de la Justice), (QCCA), J.E. 2004-2034 (C.A.); Chevreuil c. R., 2005 QCCA 978; El Morr c. R., 2007 QCCA 1362; Girard c. R., 2008 QCCA 1267;Marleau c. R., 2008 QCCA 1804; Rochon c. R., 2008 QCCA 2142; Samoisette c. R., 2008 QCCA 2521; Kyling c. R., 2011 QCCA 1359(requête pour autorisation de pourvoi à la Cour suprême rejetée (C.S. Can., 2012-04-12), 34504); L.G. c. R., 2011 QCCA 634; Corriveauc. R., 2013 QCCA 401, 2013EXP-1001; Richer c. R., 2013 QCCA 692, J.E. 2013-768; Des Châtelets c.

R., 2013 QCCA 871, J.E. 2013-950 et jurisprudence y citée. [8] As far as public security is concerned, it is worth noting that the very serious crimes of which the petitioner was convicted werenevertheless committed without any sort of violence. The sentencing judge recognized this fact when she expressly refused to delayparole until half of the sentence be served (s. 743.6 Cr.C.).

As mentioned earlier, the petitioner was free during the six years after hisarrest and until July 2, 2014, when sentence was passed, and, in the meantime, he complied with all the conditions of his judicial release.Were he to be released pending the appeal, there would be no threat to public security. [9] As far as public confidence in the administration of justice is concerned, two principles must be considered: judgments need tobe enforced, certainly, considering that the presumption of innocence does not apply at this stage; judgments, however, may beerroneous – this is why there is a right to appeal and why s. 679 Cr.C. exists – and need not be enforced precipitously, without regard tothe specific situation of the offender [references omitted].

In the present case, the seriousness of the crimes and the length of the sentenceof imprisonment must certainly be considered. The age of the petitioner (81) is not irrelevant, but so are the facts that he decided to starthis criminal career when he was in his seventies (thus fully aware of the risks of such an illegal undertaking), and that he was driven bygreed alone.

Considering, however, the seriousness of the grounds of appeal, the absence of violence in the commission of the offences,the fact that the sentence will largely have been served by the time the appeal is heard, and, more generally all the circumstanceshereinabove described, I believe that, on balance, detention is not necessary. [10] In Beugré v. R. [2011 QCCA 1788], my colleague Kasirer J.A. wrote that: [8] L'intérêt public commande, aussi, le maintien de la confiance du public envers l'administration de la justice [renvoi omis].

Il nefaut pas qu'une décision de remettre l'appelant en liberté banalise le sérieux des condamnations ou le tort que les victimes ont subi enl'espèce. Il ne faut pas, non plus, qu'une décision de remettre l'appelant en liberté soit comprise par le public comme une espèced'absolution pour la peine que la Cour supérieure vient de lui imposer.

Je retiens le critère traditionnellement identifié par lajurisprudence à cette fin [renvoi omis]: la confiance dans le système de justice pénale du citoyen raisonnable, bien informé du processusjudiciaire et des circonstances de l'affaire, serait-elle ébranlée par la mise en liberté de l'appelant à ce stade-ci des procédures?

Je ne lepense pas. [9] Si l'opinion publique peut être secouée par le sérieux des condamnations, je crois que le citoyen bien informé comprendrait quela détention de l'appelant, avec des moyens d'appels non frivoles et une fiche de bonne conduite de 33 mois entre son arrestation et sonincarcération, n'est pas nécessaire dans l'intérêt public. [11] These comments apply here, where we have a “fiche de bonne conduite” of six years.

I am of the view that the incarceration ofthe petitioner, in the eyes of a well-informed public, would not affect confidence in the administration of justice, considering 1° all thecircumstances of the present case, 2° that the petitioner will be subject to strict conditions of release, and 3° that, should his appeal bedismissed, he will then serve his sentence in its entirety. [Emphasis added] [11] The same comments apply here mutatis mutandis. [12] The appellant poses no threat to public security.

In his judgment, the sentencing judge clearly acknowledged this fact when hetook into account, as mitigating factors, “the reduced risk that he [the appellant] commits new offences” and “the fact that he complied

with his bail conditions”.[10] It is worth recalling that the appellant was not incarcerated during the proceedings in the courts below, thathis bail conditions were not particularly severe and that, as noted above, he was even allowed to travel outside Canada. There is no riskthat he will endanger the public if released.

Furthermore, due to the notoriety of his case, there appears to be no risk that he will engagein activities that could endanger the public financial safety, especially in light of the fact that his bail conditions could address the issue. [13] But would the appellant’s release compromise the public confidence in our justice system or undermine its integrity? I am of theview that it will not. [14] As Schutz J.A. recently wrote in R. v.

Laczo:[11] 13 As to the issue of public respect, this Court ought to grant judicial interim release unless some factor would cause ordinary,reasonable, fair-minded members of society, or persons informed about the philosophy of the legislation, Charter values and the actualcircumstances of the case, to believe that detention is required to maintain public confidence in the administration of justice: R v Nguyen(1997), (BC CA), 97 BCAC 86 at para 18, [1997] BCJ No 2121.

The relevant circumstances are those of theoffence and the offender. [Emphasis added] [15] Is there such a factor in the present case? [16] It is true that the appellant, who no longer benefits from the presumption of innocence (a fact on which the respondent insistedemphatically) and who faces a heavy burden in appeal, was found guilty of serious crimes. While this must obviously not be ignored, itcannot be a reason, per se, not to release the appellant. First, s. 679 Cr.C. expressly provides for the release of offenders who appealagainst conviction, when they satisfy the required conditions.

This provision would become meaningless if the inapplicability of thepresumption of innocence in appeal were an obstacle to release.

Secondly, s. 679 Cr.C. does not provide for release in the case of pettycrimes only: no offense nor offender is to be excluded[12] and each situation must be considered on a case-by-case basis, according to allits circumstances. [17] Indeed, what the Criminal Code requires is that a balancing exercise be conducted between the need to enforce the verdict andthe sentence and the need to ensure the fair review thereof,[13] having in mind the reasonable and reasonably well-informed public, asdefined by my colleague Doyon J.A. in J.V. v.

R.:[14] [7] […] Le public dont il est question est celui qui connaît les règles de droit et qui est, comme l'écrit le juge Chamberland, “au faitde tous les tenants et aboutissants du dossier” : R. c. Do, (QC CA), REJB 1997-03809 (C.A.), et un public, commele rappelait le juge Fish, alors à la Cour, “fully appreciative of the rules applicable under our system of justice”: Pearson c. R., AZ-90011560.

Il s'agit donc d'un public qui est en mesure de se former une opinion éclairée, ayant pleinement connaissance des faits de lacause et du droit applicable, et qui n'est pas mû par la passion, mais bien par la raison. [18] Or, to borrow from the Supreme Court’s judgment in R. v.

St-Cloud,[15] the public in question, which is not comprised of legalexperts, thus “consists of reasonable, well-informed persons, and not overly emotional members of the community”.[16] The referencepoint here is that of the “thoughtful person, not one who is prone to emotional reactions, whose knowledge of the circumstances of acase is inaccurate or who disagrees with our society’s fundamental values”,[17] and who is well-informed of the philosophy and keyvalues of our criminal law, without being apprised of all principles or subtlties thereof. [19] What are the factors to be considered in the course of this balancing exercise?

Each case being different, an exhaustive listthereof cannot be compiled, but the following are usually considered:[18] seriousness and circumstances of the offence (includingviolence or absence of violence); prior criminal convictions; length of the sentence; time for the appeal to be heard; relative strength, on aprima facie evaluation of the appeal grounds (strong appeal grounds may tilt the balance in favour of the appellant being released;weaker grounds, while not preventing release, may be less propitious);[19] personal profile (age, health, family and familyresponsibilities, social surroundings, employment situation, criminalized lifestyle, etc.), other circumstances, if any.

These factors mustbe weighed together. [20] In the present case, considering that: - the offences are serious (the crimes for which the appellant was found guilty call for a maximum imprisonment of 10 or 14 years ofimprisonment), they involved significant amounts of money and were the result of a sophisticate planning; - the appellant was sentenced to 8 years of imprisonment (minus the credit for remand custody), which is quite severe; - the trial judge ordered the appellant’s incarceration immediately after the verdict; but considering also: - that the crimes, which fall in the category of economic crimes, were not violent (although not victimless);[20] - the relative strength of the grounds of appeal; - the fact that the appellant has no prior criminal record, does not have a criminalized lifestyle and presents no threat to public safetynor risk of flight; - the personal situation of the appellant, who was gainfully employed, operating his own business until he was incarcerated followingthe verdict and which he will pursue if released; - the fact that the appeal will be heard promptly;

- the fact that if the appeal is allowed, the appellant will have been punished unnecessarily; - that, should his appeal be dismissed, he will serve his sentence; - the fact that he complied with his bail conditions and has a “fiche de bonne conduite” of more than five years; - the fact that he will be subject to more stringent release conditions, if his application is granted; - that “denial of bail pending appeal is not intended to serve as a means of punishment”; [21] and appraising all the circumstances, I conclude that a reasonable and well-informed public will not be offended by the appellant’s release and that public confidence in the justice system will not be compromised.

FOR THE AFOREMENTIONED REASONS, I: [ 21 ] GRANT the “application for judicial interim release”; [ 22 ] ORDER the release of the appellant, on the following conditions : i. A recognizance in the amount of $100,000, with deposit, by a third party, Ms. Victoria Kiromaris Xanthoudakis, as a guarantee that the appellant will comply with the conditions set out hereinafter; ii. The appellant shall keep the peace, be of good behaviour and attend court whenever required; iii.

The appellant shall reside at […], Montreal, Quebec […] (principal address) or at […], Montreal, Quebec […] (occasional address) and not change either address without prior authorization of this Court or one of its judges; iv. The appellant shall surrender his Canadian passport and any other passport to the Registry of the Superior Court, District of Montreal, before being released, and not retrieve it or attempt to obtain another passport or any other travel document ; he shall also abstain from having in his possession any passport or other travel document; v.

The appellant shall not leave the Province of Quebec; vi. The appellant shall report to the Sûreté du Québec (1701, Parthenais St., Montréal), every week, on Wednesday, between 9 am and 5 pm, and sign the register; this condition is suspended when a Wednesday coincides with a statutory holiday and the appellant shall then report to the Sûreté du Québec on the next working day; vii. The appellant shall abstain from communicating in any manner with Hasanain Panju, Ronald Andrew Weinberg and Lino Pasquale Matteo, except in the presence of counsel in order to prepare his appeal; viii.

The appellant shall abstain from communicating in any manner with Robert Daviault, Mario Ricci and Thomas Muir; ix. The appellant shall abstain from acting as an officer in any publicly-traded company; x. The appellant shall abstain from trading directly or indirectly on any securities or acting in any capacity (including that of advisor) in financial markets except in relation with his personal registered retirement savings plan or registered income plan; xi. The appellant shall abstain from participating directly or indirectly in the preparation, circulating or publishing of any prospectus; xii.

The appellant shall surrender himself into the custody of the Ste-Anne-des-Plaines Regional Reception Centre (246, Montée Gagnon, Sainte-Anne-des-Plaines, Quebec, J0N 1H0) on the day before the hearing of his appeal by this Court or within any delay prescribed by this Court at any time; xiii. Should the appellant discontinue his appeal, he shall immediately surrender himself into the custody of the Ste-Anne-des-Plaines Regional Reception Centre. [ 23 ] ORDER that an undertaking of these conditions be given before a justice of the peace assigned to such matters, before the appellant is released.

MARIE-FRANCE BICH, J.A. Mtre Andrew Barbacki ANDRÉ BARBACKI Mtre Steven Slimovitch STEVEN SLIMOVITCH, AVOCAT For the appellant Mtre Céline Bilodeau DIRECTEUR DES POURSUITES CRIMINELLES ET PÉNALES For the respondent Date of hearing: October 24, 2016