2017 QCCA 152, 2017 QCCA 152

Phillips c. R. 2017 QCCA 152 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006231-169 (500-01-089034-133) MINUTES OF THE HEARING DATE: January 18, 2017 THE HONOURABLE MARK SCHRAGER , J.A. APPLICANT COUNSEL ANDREW PHILLIPS Mtre ROBERT ISRAEL (Battista Turcot Israel Corbo s.e.n.c.) RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre MAUDE PAYETTE (Directeur des poursuites criminelles et pénales) DESCRIPTION: Motion for release from prison (section 679 (1) C.cr. and

article 53 of the Rules of the Court of Appeal of Quebec in Criminal Matters ) Motion for suspension of the sentence (section 683 (5) C.cr. ) Clerk: Adam Scott Courtroom: RC.18

HEARING 14:32 Commencement of the hearing. Identification of counsel.

Exchange between the judge and counsel. 14:33 Exchange between the judge and Mtre Israel. 14:34 Representations by Mtre Israel. 14:41 Exchange between Mtre Payette and the judge. 14:45 Exchange between the judge and Mtre Israel. 14:48 BY THE JUDGE: The applicant withdraws the Motion for suspension of the sentence without prejudice to the right to present it anew. 14:49 Exchange between the judge and Mtre Israel. 14:52 Exchange between the judge and counsel. 14:54 Suspension of the hearing. 15:16 Resumption of the hearing. 15:17 Exchange between the judge and Mtre Israel. 15:18 BY THE JUDGE: Judgement – see page 3.

Conclusion of the hearing. (

s) Adam Scott Clerk BY THE JUDGE JUDGMENT [ 1 ] On July 21, 2016, Applicant was convicted of sexual touching a child under the age of 16 (Section 151a) C.cr. ).

He filed an appeal from the conviction on August 25, 2016, which is still pending. [ 2 ] On January 18, 2017, in fact this morning, he was sentenced to 15 months in prison followed by 2 years’ probation. [ 3 ] Applicant now seeks his release from prison pending the appeal. [ 4 ] The prosecution does not contest the application for release, has renounced to the service delay and joins with Applicant in suggesting conditions of release. [ 5 ] Article 679(3) C.cr. permits a judge of the Court of Appeal to release Applicant subject to the satisfaction of the conditions therein prescribed: [ 6 ] 679 (3)a C.cr. : Applicant’s appeal is not futile and the notice of appeal indicates arguable grounds. [ 7 ] 679 (3)b C.cr. : It appears that Applicant is not a flight risk and will surrender himself when required.

He was on bail throughout the process in first instance and the conditions of release were not violated. He has attended Court when required and resides and is employed in Toronto. [ 8 ] 679(3)c C.cr. : Applicant’s detention pending appeal is not required in the public interest. There is no indication that given the

proposed conditions of release that Applicant constitutes a danger. Moreover, if he is not released, Applicant may well have served the greater part, if not all the sentence by the time judgment is rendered on his appeal. In such circumstances an informed member of the public would not lose faith in the judicial system by the fact of his interim release. [ 9 ] FOR THESE REASONS, THE UNDERSIGNED: [ 10 ] GRANTS the motion for release from prison; [ 11 ] ORDERS release of Applicant pending the appeal in the present case, subject to the following conditions: 1.

The Applicant must k eep the peace, be of good behaviour, and attend court whenever required; 2. He must reside at […] Toronto, Ontario, […] ; 3. He must notify the Court of Quebec of any change of address in advance and in writing; 4. He must abstain from being within a radius of 100 meters of the domicile, place of work of Shirley and Frantz-Ricardo Mirvil; 5. He must abstain from communicating in any manner with Emerick Mirvil, Shirley Mirvil, Frantz-Ricardo Mirvil; 6. He must abstain from being in a radius of 100 meters from 7000 Champlain, Verdun; 7.

He must abstain from being in the presence of persons under 18 years old, except in the company of adults responsible, adults who knows about the accusations; 8. He must abstain from communicating with employees of Funville Daycare, District of Montreal; 9. He must abstain from attending a public park or public swimming area where persons under age of 18 years are present or can reasonably be expected to be present, or a daycare center, school ground, playground, or community centre; 10.

He must abstain from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 18 years; 11. He must present himself to L'Établissement de détention de Montréal, 800 Boul Gouin O., Montréal, QC H3L 1K7, within 48 hours of a denial of his appeal, should there be one, or of any other instruction of the Court. [ 12 ] ORDERS Applicant to sign a copy of these conditions as his recognizance before a justice of the peace prior to his release.

MARK SCHRAGER , J.A.