2022 QCCA 1335, 2022 QCCA 1335

R. c. Murphy 2022 QCCA 1335 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-700030-222 ( 540-01-090229-199 ) MINUTES OF HEARING DATE: September 28, 2022 THE HONOURABLE PETER KALICHMAN, J.A. APPLICANT COUNSEL HIS MAJESTY THE KING Mtre SIMON BLAIS ( Director of Criminal and Penal Prosecutions ) Absent RESPONDENT COUNSEL Brandon Murphy Mtre GABRIEL BÉRUBÉ-BOUCHARD ( Gabriel Bérubé-Bouchard avocat ) By videoconference DESCRIPTION: Motion for suspension of the sentence (s. 683(5) Cr.c. ). Clerk at the hearing : Anne Dumont Courtroom: RC-18 HEARING

9:30 Commencement of the hearing. Continuation of the hearing held on September 27, 2022. The parties were excused from appearing in Court BY THE JUDGE : Judgment – see page 3. Conclusion of the hearing.

Anne Dumont, Clerk at the hearing JUDGMENT [ 1 ] On May 8, 2019, the Respondent appeared before the Court of Quebec, Criminal and Penal division in the district of Laval, charged with one count of criminal harassment and one count of mischief in file 540-01090229-199 ( file 199 ), and three counts of having failed to comply with undertakings entered into before a peace officer in file 540-01-090228-191 ( file 191 ). [ 2 ] On May 23, 2021, the Respondent pleaded guilty before the Honourable Serge Cimon, J.Q.C. to both charges in file 199, and to two of the three charges in file 191. [ 3 ] On August 11, 2022, the judge sentenced the Respondent to a conditional sentence of twelve months and two years of probation in file 199, and imposed a suspended sentence of two years in file 191.

In both files, the sentences were global and did not address each count separately. Several minutes later, the judge rendered a second judgment imposing a conditional sentence of twelve months and probation of two years for the count of mischief in file 199 and a suspended sentence of two years on the count of criminal harassment in that same file. The sentence in file 191 was unchanged. [ 4 ] The primary ground set out in the Applicant’s motion for leave to appeal is that the judge committed an error in principle by modifying his judgment after he had exhausted his jurisdiction by rendering the sentence.

Among his other grounds of appeal, the Applicant maintains that the sentence is demonstrably unfit. [ 5 ] The Applicant’s motion for leave to appeal is made presentable to the Court. In accordance with

article 58 para. 2 of the Rules of the Court of Appeal in Criminal matters , the parties contacted the clerk to set the hearing date for the motion for leave and for the appeal itself. [ 6 ] The Applicant now asks that that I suspend the execution of the sentence. [1] It argues that since its appeal is not futile and it intends to seek a sentence of imprisonment, which is what it sought in first instance, it is in the interest of justice to suspend execution to avoid placing the Court that hears the appeal before a fait accompli , rendering the appeal partially if not totally academic. [ 7 ] The Respondent maintains that a suspension is not in the interest of justice, primarily because the appeal has no reasonable chance of success.

In his view, the judge did not modify his initial judgment; he merely provided a breakdown of its components, specifying what the sentence would be for each count. At any rate, he adds, it is extremely unlikely that the Court would order a term of imprisonment such that the appeal is merely delaying his ability to serve his sentence. [ 8 ] Without commenting on the Applicant’s chances of success, I am satisfied that the grounds raised are serious and that it is in the interest of justice that the sentence be suspended.

Without a suspension, the appeal will be rendered partially academic in that the Respondent will have served most of his sentence. [2] FOR THESE REASONS, THE UNDERSIGNED: [ 9 ] GRANTS the Motion for suspension; [ 10 ] SUSPENDS the sentence rendered on August 11, 2022 by the Court of Quebec, Criminal and Penal division, until a final decision has been rendered by the Court on the appeal. PETER KALICHMAN, J.A.