2023 QCCA 1187, 2023 QCCA 1187

Palliser c. R. 2023 QCCA 1187 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-004079-237 (640-01-042764-192) MINUTES OF THE HEARING WARNING : The trial court made an order under s. 486.4 Cr.C. directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way. DATE: September 15, 2023 THE HONOURABLE SOPHIE LAVALLÉE, J.A.

APPLICANT COUNSEL JOANASSIE PALLISER Mtre SARAH PLAMONDON (Sarah Plamondon Avocate) RESPONDENT COUNSEL HIS MAJESTY THE KING Mtre NICHOLAS PINEL (Director of Criminal and Penal Prosecutions) DESCRIPTION: 1- Application for leave to appeal from a sentence rendered on June 27, 2023 by the Honourable Christian Leblanc of the Court of Québec, District of Abitibi (s. 675(1)(

b) Cr.C. ) 2- Application for release from custody (s. 679(1) (

b) Cr.C. )

Clerk at the hearing: Alysson Roussel Courtroom: 4.30 – videoconference HEARING 9:37 Calling of the file and identification of the parties; Discussion between the judge and the parties; 9:47 Submissions of Mtre Plamondon regarding the application for leave to appeal; Discussion between the judge and Mtre Plamondon; Mtre Plamondon continues; 10:01 Discussion between the judge and Mtre Plamondon regarding the conditions of release in first instance; 10:03 Submissions of Mtre Pinel; Discussion between the judge and Mtre Pinel; Mtre Pinel continues; 10:09 Mtre Pinel states that the application for release from custody is contested; Discussion between the judge and Mtre Plamondon; Mtre Pinel continues; 10:18 Reply by Mtre Plamondon; Discussion between the judge and Mtre Plamondon; Mtre Plamondon continues; 10:21 Recess of the hearing; 10:25 Resumption of the hearing; Discussion between the judge and the parties; 10:32 Judgment.

The reasons will be set out in the minutes of the hearing; 10:33 End of the hearing. Alysson Roussel, Clerk at the hearing JUDGMENT WARNING : The trial court made an order under s. 486.4 Cr.C. directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way. [ 1 ] The applicant filed an application for leave to appeal from the sentence (s. 675(1)(

b) Cr.C. ) rendered on June 27, 2023, by the Court of Québec, District of Abitibi (the Honourable Christian Leblanc) [1] , and an application for release from custody pending the determination of the appeal (s. 679(1)(

b) Cr.C. ). [ 2 ] On June 14, 2022, Leblanc, J.C.Q. found the applicant guilty of sexual interference on a person under the age of 16 years. Pursuant to the rule against multiple convictions arising from the same facts, he ordered a stay of proceedings on the second count, namely, sexual assault.

[ 3 ] The applicant, arguing that the delay between his conviction and sentencing infringed his right to be tried within a reasonable time, subsequently filed an application for a stay of proceedings pursuant to s. 11(

b) of the Charter . [2] On June 1, 2023, Leblanc, J.C.Q. dismissed that application. [ 4 ] On June 27, 2023, the applicant was sentenced to 6 months in custody, with an 18-month probation period. [3] [ 5 ] In the sentencing judgment, Leblanc, J.C.Q. addressed the post-verdict delays as follows: The accused’s lawyer is submitting that the total length of the proceedings should be considered by the Court to mitigate the sentence to be imposed to her client. The accusations against the accused were sworn in in August 2019 and the trial was held in June 2022. He was found guilty a month later.

No petition was presented at trial about the pre​trial delays and, at the sentencing hearing, no evidence was presented about the qualification and reasons for those delays. Simply put, the accused is asking the Court to take the total pre-trial delay and conclude, without any evidence that would permit a proper analysis, that the delay is too long. From that conclusion, the accused is asking the Court to take them into account in the application of the sentencing principles. The Court could only assume that the accused is expecting the Court to apply mitigating effect on his sentence.

With respect, the evidence does not support such a conclusion. Concerning the post-verdict delays, a petition under 11

b) of the Charter was presented by the accused. Without coming back in details on the matter, the Court concluded that the time needed to prepare the Gladue report was about two, three months longer than usual because of the consequences of COVID-19, and that an additional delay of two to four months was caused by administrative mistake of the clerk office. The Court agrees with the accused on the fact that even if the Charter motion was rejected, the Court still has the discretion to consider those delays as an element among many others to consider on sentencing.

In the present case, the accused insisted a great deal on the impact of those post-verdict delays and is therefore asking the Court to reduce his sentence accordingly. Application for leave to appeal from the sentence ( 675(1)(

b) Cr.C.) [ 6 ] The applicant seeks leave to appeal from the sentencing judgment on the ground that the judge committed an error in principle when he ruled that the period of more than 10 months elapsed between his conviction on July 14, 2022, and the sentencing hearing on June 1, 2023, was not unreasonable. [ 7 ] He argues that this error of law in characterizing the post-conviction delays had an impact on the sentence imposed on him. Citing a breach of s. 11(

b) of the Charter , he therefore asks this Court to quash the sentencing judgment and impose the sentence the Court considers fit, or “make any order required in the interests of justice”. [ 8 ] In support of his application for leave to appeal from the sentence, the applicant submitted only the sentencing judgment, without including the stenographic notes of the hearing.

This did not facilitate the consideration of the present application for leave to appeal because, in the sentencing judgment, the judge merely summarized his decision on the application for a stay of proceedings. [ 9 ] The respondent is of the view that the judge did not err in his characterization of the post-verdict delays.

Subsidiarily, it argues that if the sentence is tainted by such an error in principle, the appropriate remedy is not a stay of proceedings, but rather a mitigation of the sentence, which would constitute “an order required in the interests of justice”. [4] [ 10 ] To obtain leave to appeal from his sentence under s. 675(1)(

b) Cr.C. , the applicant must demonstrate that the proposed appeal raises issues that have sufficient merit and importance to warrant the Court’s intervention. [5] It is not for the judge sitting alone, however, to speculate on the outcome of the appeal, should leave be granted. [6] [ 11 ] After having heard the submissions of Crown and defence counsel at the hearing, and without commenting on the likelihood of success of the appeal, I am of the opinion that the applicant’s application for leave to appeal the sentence should be granted. Application for release from custody (s. 679(1)(

b) Cr.C.) [ 12 ] The appellant seeks his release from custody pending the determination of his appeal. [ 13 ] The respondent opposes the appellant’s application for release from custody. [ 14 ] In light of the submissions of both parties, I am of the opinion that the appellant has not discharged his burden of proof and that he should not be released pending the determination of the appeal. [ 15 ] The appellant’s grounds of appeal have sufficient merit such that, in the circumstances, it would cause unnecessary hardship if he were detained. [ 16 ] I am convinced that the appellant will surrender himself into custody in accordance with the terms of the present order. [ 17 ] I am of the view, however, that his detention is necessary in the public interest.

The appellant, who was on judicial interim release throughout all of the proceedings in first instance, was charged with committing another offence of a sexual nature against a minor while he was on judicial interim release.

[ 18 ] Consequently, it is my opinion that the application for release from custody pending the determination of the appeal should be dismissed. FOR THESE REASONS, THE UNDERSIGNED: [ 19 ] GRANTS the application for leave to appeal from the sentence rendered on June 27, 2023, by the Court of Québec; [ 20 ] DISMISSES the appellant’s application for release from custody; [ 21 ] REFERS the file to the Master of the Rolls so that a hearing date can be scheduled by preference once the matter is ready to be placed on the roll. SOPHIE LAVALLÉE, J.A.