2022 QCCA 309, 2022 QCCA 309

Drummond c. R. 2022 QCCA 309 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007609-215 ( 760-01-096018-194 ) MINUTES OF HEARING WARNING: An order restricting publication was issued at first instance, under

section 486.4 C.cr . to prohibit the publication or dissemination in any way of any information that would establish the identity of the victim or witness. DATE: February 23, 2022 THE HONOURABLE STEPHEN W. HAMILTON, J.A. APPELLANT COUNSEL Scott Drummond Mtre Cynthia Lacombe ( BMD Avocats ) By videoconference RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre Patrick Cardinal ( Director of Criminal and penal prosecutions) By videoconference DESCRIPTION: Motion for release and stay of sentence ( Art. 679(1) and 683(5) C.cr .).

Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING 11:55 Commencement of the hearing. Identification of counsel. The motion is not contested. Exchanges between the judge and counsel concerning the conditions for release. 11:58 BY THE JUDGE: Judgment – see page 3. 12:01 Conclusion of the hearing.

Mélanie Camiré, Clerk at the hearing JUDGMENT WARNING: An order restricting publication was issued at first instance, under

section 486.4 C.cr . to prohibit the publication or dissemination in any way of any information that would establish the identity of the victim or witness. [ 1 ] On May 25, 2021, the Appellant was found guilty by the Court of Quebec, District of Beauharnois (the Honourable Joey Dubois) on two charges: (1) for a sexual purpose, touched part of the body of a person under the age of 16 years (

section 151 (

a) Cr.C . ), and (2) for a sexual purpose, exposed his genital organs to a person under the age of 16 ( section 173(2) Cr.C . ). [ 2 ] On June 21, 2021, he appealed to this Court against his conviction. [ 3 ] On February 21, 2021, he was sentenced to serve, on the first charge, 8 months of incarceration, followed by a probation order of 3 years, and on the second charge, 3 months of incarceration, to be served concurrently. [ 4 ] Pursuant to sections 679(1) and 683(5) Cr.C . , the Appellant seeks his interim release pending the outcome of the appeal.

The Respondent, with good reason, does not contest the motion. *** [ 5 ] The Appellant has the burden of satisfying the three criteria for interim release set out in in section 679(3) Cr.C . , namely [1] : (

a) the appeal is not frivolous; (

b) he will surrender himself into custody in accordance with the terms of the order; and (3) his detention is not necessary in the public interest. [ 6 ] The grounds alleged in the notice of appeal can be summarized as follows: 1. The judge’s decision is unreasonable and cannot be supported by the facts; 2. The judge erred in analyzing the plaintiff’s credibility 3.

The judge erred by declaring sufficiently probative the statement written by the policeman reporting the extrajudicial statement of the Appellant. [ 7 ] These grounds do not appear frivolous [2] . [ 8 ] The Appellant was not incarcerated prior to conviction and he respected all of the conditions of his release. I find the second criterion satisfied. [ 9 ] Concerning the third criterion, the offences with which the Appellant was charged did not involve violence and relate to events that occurred almost 10 years ago. Other than the present charges, the Appellant has no criminal history and no pending charges.

His detention during the appeal is not necessary in the public interest. Moreover, given the length of the sentence, he would likely serve his entire sentence before the appeal is heard, rendering his appeal moot. I find this criterion satisfied [3] . FOR THESE REASONS, THE UNDERSIGNED: [ 10 ] GRANTS the motion for judicial interim release pending the outcome of the appeal; [ 11 ] ORDERS the release of the Appellant subject to the following conditions: 1. Keep the peace and be of good behaviour; 2. Reside at [...], Vaudreuil-Dorion, Québec;

3. Not change his address without prior authorisation from a judge of this Court or from a prosecutor of the DPCP; 4. Not communicate or attempt to communicate in any matter with X and the members of her immediate family; 5. Not carry or have in his possession any weapons or imitation of weapons; 6. Not be at or go to any place where X or the members of her immediate family may reside; 7.

Respect the conditions imposed pursuant to an order under subsection 161(1) of the Criminal Code , as set out at paragraph 59 of the sentencing judgment rendered on February 21, 2022 : i. not attend a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre; ii. not be within two kilometres of any dwelling house at which X ordinarily resides; iii. not seek, obtain or continue any employment, whether or not the employment is remunerated, or become or be a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years; iv. not have any contact — including communicating by any means — with a person who is under the age of 16 years, except with his daughter Y and his niece Z, or unless he does so under the supervision of Christine Lefebvre. 8.

Deposit his passport in the Court file for the duration of the proceedings in appeal; 9. Not attempt to obtain another passport or any other travel document; or have in his possession any passport or other travel document ; 10. Not leave the province of Quebec; 11.

Surrender himself into the custody of the Bordeaux Detention Centre within 72 hours of the discontinuance or the dismissal of his appeal, or before the expiration of any other delay determined by the Court or one of its judges . [ 12 ] ORDERS that the Appellant sign an undertaking that he will respect these conditions in front of a justice of the peace assigned to such matters, before he is released. STEPHEN W. HAMILTON, J.A.