2011 QCCA 1110, 2011 QCCA 1110

Unofficial English Translation Agnant c. R. 2011 QCCA 1110 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004555-106 (500-01-007596-072 SEQ. ACC. 001/009) DATE: June 14, 2011 THE HONOURABLE ANDRÉ ROCHON, J.A. PIERRE-AROLD AGNANT APPELLANT – accused v.

HER MAJESTY THE QUEEN RESPONDENT – prosecutrix JUDGMENT [ 1 ] The appellant seeks to be released pending the outcome of his appeal from the guilty verdict he was given by a jury on the five following counts: 1.1 Between December 25, 2006, and June 20, 2007, at Montreal, District of Montreal, and elsewhere in Quebec, did conspire with Jaccin ELOI, Maggy FANFAN, Carl JEAN, Gustave JEAN and Carl RENOUS, Khaled ZIADE and other persons to commit an indictable offence, to wit; trafficking in controlled substances, contrary to

section to sections 5(1)(3)(

a) and 5(1)(4) of the Controlled Drug and Substances Act , thereby committing the indictable offence set out in section 465(1) (

c) of the Criminal Code ; 1.2 Between December 25, 2006, and June 20, 2007, at Montreal, District of Montreal, did traffic in substances included in Schedules I and II or in any substance represented or held out by that person to be such a substance, thereby committing the indictable offence set out in section 5(1)(3) of the Controlled Drug and Substances Act ; 1.3 Between December 25, 2006, and June 20, 2007, at Montreal, District of Montreal, did traffic in a substance listed in schedules II and VII, or in any substance represented or held out by that person to be such a substance, thereby committing the indictable offence set out in section 5(1)(4) of the Controlled Drug and Substances Act ; 1.4 Between December 25, 2006, and June 20, 2007, at Montreal, District of Montreal, did commit an indictable offence under the Criminal Code or any other Act of Parliament, to wit: trafficking in controlled substances for the benefit of, at the direction of, or in association with, a criminal organization, thereby committing the indictable offence set out in

section 467.12 of the Criminal Code ; 1.5 Between December 25, 2006, and June 16, 2007, at Montreal, District of Montreal, as a peace officer, did corruptly accept, obtain, agree to accept or attempt to obtain money with intent to procure or facilitate the commission of an offence, thereby committing the indictable offence set out in

section 120 (

a) of the Criminal Code . [ 2 ] The trial judge affirmed the verdicts on the first, second, fourth, and fifth counts and ordered a stay of proceedings on the third count, which was lesser and included in the second count; [ 3 ] On April 30, 2010, the appellant was sentenced to serve a total of ninety-six months’ imprisonment starting on that same date. He had been held in pre-sentence custody for six months.

He has been on interim release since August 10, 2007. [ 4 ] Section 679(3) of the Criminal Code requires that the appellant establish that his appeal is not frivolous, that he will surrender himself into custody in accordance with the terms of the order, and that his detention is not necessary in the public interest. [ 5 ] It is common ground that the appellant complied with the terms of his release, and that he did so up until the guilty verdict, during a period of two and a half years.

[ 6 ] Except for the convictions under appeal, the appellant has no criminal record. His former employer has stated that he would be willing to let him return to work. [ 7 ] Before considering the conditions set out in

section 679 Cr. C. , we must consider the issue of the delays. [ 8 ] A first notice of appeal was filed on January 10, 2010. The application for interim release is dated May 13, 2011. Accordingly, some may question the relevance of granting bail to the appellant when his appeal would already have been heard had his counsel acted diligently. [ 9 ] In the present case however, reasonable grounds justifying the delay were given. These grounds are as follows: [ 10 ] A significant portion of the evidence at trial consisted in 611 telephone conversations between the appellant and his accomplices.

A large number of these conversations were in Creole and were translated into French. [ 11 ] At trial, several issues were raised as to the reliability of these translations. The translator was examined and cross-examined. The Superior Court judge was informed of some anomalies.

She gave firm instructions to the jury to ignore some of the words that the translator had unduly added to the translation [ 12 ] Almost two months after the verdict, which was rendered on December 13, 2009, and more than a month after the first notice of appeal was filed on January 10, 2010, the translator met two attorneys from the Bureau de lutte au crime organisé and informed them that police officers had exerted tremendous pressure on her and that she had lied to the Court during her testimony with respect to her translations. [ 13 ] Represented by new counsel, the appellant presented a motion for a stay of proceedings.

The Superior Court judge held an inquiry into the matter. At the time, the sentence had yet to be given. [ 14 ] In a written judgment dated August 24, 2010, the Superior Court judge dismissed the motion for a stay of proceedings. [ 15 ] On October 5, 2010, counsel for the appellant obtained permission to withdraw from the case. A notice to retain new counsel was served on the appellant on April 11, 2011. On April 13, 2011, the appellant’s present counsel appeared and a certificate of eligibility for legal aid was filed.

Counsel immediately ordered the hearing transcripts. [ 16 ] From the particular circumstances of the case, I find that the appellant cannot be charged with negligence in the conduct of his appeal and that consequently, his application for interim release cannot be dismissed for that reason.

GROUNDS OF APPEAL [ 17 ] In his initial appeal, the appellant raised the following grounds: 1) The appellant did not benefit from a fair and equitable trial due to the incompetence of his counsel; 2) The appellant reserves the right to add grounds of appeal, if appropriate. [ 18 ] In his amended notice of appeal, the appellant stated his grounds as follows: 6.1 The appellant did not receive an equitable trial due to the incompetence of his counsel. 6.1.1 During the trial, more specifically, on December 10, 2009, the jurors voiced their concerns as to this issue in a note sent to the trial judge during deliberations.

There were two questions in the note:

a) Did the appellant find his trial to be fair and equitable?

b) Was the appellant satisfied with the performance of his counsel? 6.1.2 The impleaded party was unable to represent the appellant through to the end because he was struck from the roll of the order while the trial was unfolding. 6.2 The Honourable trial judge erred in law by ruling that a document vitiated by errors and misrepresentations was admissible, to wit: the translation of the communications; 6.3 The Honourable trial judge erred in law by refusing to grant a sufficient delay for the defence to point out the discrepancies in the translation; 6.3.1 The translation of over five thousand (5000) intercepted communications, contained in several volumes, represented the vast majority of the evidence against the appellant. 6.3.2 When the trial adjourned from September 28 to October 2, 2009, the trial judge suggested that the impleaded party and the

appellant use this adjournment to point out to the respondent which parts of the translation were erroneous. A single week to analyze, that is, to compare the original comments to twenty (20) volumes of translation, was clearly insufficient time to accomplish this task; 6.4 This highly worrisome issue was confirmed on February 9, 2010, more than a month after the verdict. The time at which these revelations were communicated to the appellant was prejudicial to him. 6.4.1 On February 9, 2010, during a meeting with Mtre Catherine Chagnon and Mtre Sandra Blanchard, both Crown prosecutors, the translator Ms. Dominique Baptiste confided that she had:

i) lied to the Court during the appellant's trial; ii) been pressured by the police officers in the file; iii) realized that modifications were made to her translation without her approval; 6.5 The Honourable trial judge erred in law by refusing to grant the stay of proceedings or any other remedy for the abuse that came to light after the verdict; [ 19 ] The appellant acknowledges that he has yet to obtain the Court's leave to argue the incompetence of his counsel, but he intends to bring an application to do so.

Without ruling on this issue in any way, the jury's questions do seem to support the seriousness of this ground. [ 20 ] In any event, the second ground, regarding the translation, cannot be characterized as frivolous, particularly as it relates to the above-noted events. COMPLIANCE WITH THE RELEASE ORDER [ 21 ] The appellant was released during his trial. He complied with the terms of his release. He is a permanent resident, but is not a Canadian citizen. His foreign passport has been handed over to the judicial or police authorities.

He has no other document that would allow him to travel abroad legally. [ 22 ] The appellant, who has no criminal record aside from this case, has a job waiting for him when he is released. He has offered to personally post bail in the amount of $10,000, with deposit. A third party is also ready to post bail and deposit an additional amount of $10,000. [ 23 ] I find that the appellant has established that he will surrender himself in compliance with the terms of the order. THE PUBLIC INTEREST [ 24 ] The crimes committed by the appellant are not violent ones.

His conduct since his release demonstrates that he does not represent a danger to public security. [ 25 ] Let us now consider the criterion of public interest. [ 26 ] In the present case, the crimes are serious. The appellant, a correctional services officer at the Bordeaux jail, got involved with a criminal organization to smuggle drugs (cannabis and crack-cocaine) and alcohol into the prison, for the prisoners. [ 27 ] According to the Crown's theory, the appellant's involvement in these crimes runs deep, even going so far as to give his criminal associates information to help them evade ongoing investigations.

The appellant had a single motivation: money. In his ruling on the motion to dismiss the proceedings, the Superior Court judge characterized the evidence as being overwhelming. [ 28 ] Despite the fact that the respondent is no longer presumed innocent, the courts have occasionally granted bail even if the crime is serious, insofar as the applicant is not a danger to public security.

In granting bail under these circumstances, the judge takes into account the apparent merit of the grounds of appeal, amongst other things, even though that assessment results from the consideration of an obviously incomplete record. [ 29 ] In light of all the elements of the file, I find that the appellant has established that his detention is not necessary in the public interest.

[ 30 ] FOR THESE REASONS: [ 31 ] GRANTS the application for release for the duration of the appeal; [ 32 ] ORDERS the appellant's release on the following terms: 1) The appellant personally undertakes to give bail, with a $10,000 deposit; 2) The third party undertakes to give bail, with an additional $10,000 deposit. 3) The appellant must keep the peace, be of good behaviour and appear before the Court when required to do so; 4) Reside at ..., LAVAL (QUEBEC); 5) Remain at this address between the hours of 11:00 p.m. and 7:00 a.m.

EXCEPT FOR THE PURPOSES OF LEGITIMATE AND PAID EMPLOYMENT; 6) Not change that address without the prior authorization of the Court; 7) Not leave the province of Quebec; 8) Not present a passport application; 9) Go to the station situated at 1701 PARTHENAIS in MONTREAL between 9:00 a.m. and 5:00 p.m., once a week, on Fridays, to sign the registry as of the date of his release; 10) Not communicate or attempt to communicate in any way with: - the co-accused JACCIN ELOI, FITZROI FABRE, MAGGY FANFAN, CARL JEAN, GUSTAVE JEAN, MONIQUE JEAN- LOUIS, CARL RENOUS, KHALED ZIADE except in the presence of his counsel to prepare for the case; - persons who, to his knowledge, have criminal records or cases pending; - persons who use or sell drugs. 11) Strictly refrain from: - Possessing a pager and/or a cellular telephone; - Possessing or using drugs or narcotics, except in accordance with a validly obtained medical prescription;

- Possessing or bearing, for any reason whatsoever, offensive weapons or restricted use weapons, or imitations of weapons, including start guns and pellet guns, firearms, crossbows, prohibited weapons, restricted use weapons, prohibited devices, munitions, prohibited munitions, or explosive substances, knives (except in restaurants and for a legitimate purpose) and bladed weapons. 12) Take the necessary steps to find a job. 13) Give prior notice in writing to the Court of any change in employment. ANDRÉ ROCHON, J.A.

Mtre Nellie Benoit and Mtre Anne-Marie Lanctôt ROCK, VLEMINCKX, DURY, LANCTÔT AND ASSOCIATES For the appellant Mtre Chantal Michaud and Mtre Isabelle Doray CRIMINAL AND PENAL PROSECUTORS For the respondent Date of hearing: June 7, 2011