2012 QCCA 2021, 2012 QCCA 2021

Wilcox c. R. 2012 QCCA 2021 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005019-110 (500-01-006624-073) MINUTES OF THE HEARING DATE: November 13, 2012 THE HONOURABLE ALLAN R. HILTON, J.A. PETITIONER ATTORNEY JAMES STEVEN WILCOX Mtre Jeffrey K. Boro (ABSENT) BORO POLNICKY LIGHTER RESPONDENT ATTORNEY HER MAJESTY THE QUEEN Mtre Dionisios Galiatsatos (ABSENT) Procureur aux poursuites criminelles et pénales MOTION FOR JUDICIAL RELEASE PENDING APPEAL Clerk: Annick Nguyen Courtroom: ——

HEARING Continuation of October 25, 2012, hearing. Parties are advised that judgment will be rendered on the minutes of the hearing and their presence in Court is not required. Judgment – See page 3. Annick Nguyen Clerk JUDGMENT [ 1 ] After having been found guilty at a judge alone trial [1] of the indictable offences of aggravated sexual assault endangering the life of the complainant [2] and aggravated assault to the same effect, [3] the trial judge sentenced the petitioner James Steven Wilcox to a conditional sentence of 21 months followed by a probation order of three years. Mr.

Wilcox has appealed the verdict of conviction, but not the sentence, which he began to serve on the day it was pronounced on June 5, 2012. [ 2 ] The facts that gave rise to the conviction are quite complex, witness the trial judge's 243-paragraph judgment. The essence of the two charges, however, is that after initially having protected anal intercourse at a sauna with a partner he met there, Mr. Wilcox did not disclose to him that he was HIV positive when they engaged in subsequent unprotected anal intercourse at his home.

Although his partner initially tested negative for the HIV virus after he first became aware of Mr. Wilcox' status, he was later found to be HIV positive. The major issues in appeal appear to be whether and to what extent the parties had unprotected sexual relations after Mr. Wilcox' disclosure, and whether there was a causal relationship between such activity and the victim later being found to be HIV positive. [ 3 ] Mr. Wilcox is an American citizen who is normally resident in Florida.

He became enamoured of Montreal largely because of the more open-minded attitudes he found here for persons of his sexual orientation. To that end, he purchased a condominium in Montreal where he lives when he sojourns here, and returns to Florida in November each year. When in Canada, he has no immigration status other than that of a visitor, with all of the limitations within Canada that status entails. [ 4 ] The most constraining aspects of the conditional sentence the trial judge imposed on Mr.

Wilcox are, from my perspective: 1) to remain in the Province of Quebec at all times; 2) to be confined to house arrest for the first 14 months of his sentence, except:

a) for medical purposes, providing he advises his supervisor in advance, or in the case of a medical emergency;

b) between 1:00pm and 5:00pm on Sundays, to do shopping, groceries and attend his pharmacy; 3) for the last seven months of the sentence, to observe a curfew between 6:00am and 11:00pm, subject to previously listed exceptions; 4) not to attempt to communicate with the victim, or approach the domicile or place of work of the victim within a distance of 200 meters; 5) to remain at least 20 meters away from the victim should he find himself in his presence, and if he is within 20 meters, to forthwith remove himself from his presence. [ 5 ] Mr. Wilcox has served slightly over five months of the conditional sentence.

In the ordinary course of events, his appeal against conviction should be heard before the end of June 2013. He applies now for his "release" from the terms of the conditional sentence pursuant to subsection 679(3) Cr.C .

[ 6 ] While conceding that Mr. Wilcox, who has no prior convictions of any nature whatsoever, would satisfy the requirements of paragraphs 679(3) (

b) and (c) [4] to obtain "release", Crown counsel nevertheless suggests that Mr. Wilcox' appeal is not perhaps as strong as his counsel contends. Nevertheless, it is apparent based on my reading of the judgment of conviction that Mr. Wilcox' appeal is not frivolous, which of course does not mean I am expressing an opinion as to its chances of success. The requirements of paragraph 679(3) (

a) Cr.C . are therefore satisfied as well. [ 7 ] The Crown does not really oppose Mr. Wilcox' "release" from the conditions of the house arrest to which he is subject, save for one of the conditions he seeks to suspend during the conduct of the appeal. [ 8 ] The only sticking point is Mr. Wilcox' desire to return to Florida as he does each November and to reside at a specified address in Lutz, Florida. If granted on the terms he proposes, Mr.

Wilcox would basically be able to move about freely within the United States or wherever else he chooses to travel on an unrestricted basis, until such time as his attendance at Court is required in Montreal. [ 9 ] In support of its objection to granting Mr. Wilcox' permission to leave the Province of Quebec instead of remaining here as the trial judge's conditional sentence requires, the Crown invokes two appellate judgments that favour its position. [ 10 ] In R. v.

Lasik , [5] Gushue, J.A. of the Newfoundland Court of Appeal dismissed an application for judicial interim release of an appellant in his late 60s who had been found guilty of sexual and physical abuse of young boys at an orphanage at which he worked between 1954 and 1957. The trial judge imposed a lengthy term of imprisonment.

The appellant had left Newfoundland in 1957 to return to his home in Chicago, where he had remained since then save for his return to Newfoundland for his trial, and sought leave to return to Chicago during the conduct of his appeal. [ 11 ] While acknowledging that the appellant had satisfied the first two criteria of subsection 679(3) Cr.C . , Gushue, J.A. nevertheless declined to allow him to leave the jurisdiction of the Court, in part, "because I have concerns with the surrendering into custody aspects of s. 679(3) ", and that he was not prepared to take the risk that the appellant might choose not to return to Canada to serve the balance of his sentence. [6] [ 12 ] In R. v.

Briand , [7] the appellant and her husband Matthews were convicted of fraud in excess of $5,000 for having operated a Ponzi scheme, for which they were sentenced to three years imprisonment. Mr. Matthews was an American citizen, with no valid status in Canada, having acknowledged that he overstayed a visitor's visa. [ 13 ] While granting the application of the appellants to be released during the conduct of their appeal, [8] Rowe, J.A. refused Mr. Matthews request to be allowed to return to the United States. His reasons for doing so are best encapsulated in the following extract from his reasons: 9. […] If (Mr.

Matthews) presents himself at the U.S. border, he will be granted entry to his native country. In that event, getting him back to Canada would require the difficult, time-consuming and expensive process of extradition. One would have to question whether this would be pursued by Canadian authorities in the circumstances of Mr. Matthews' case. 10. Thus, if Mr. Matthews were to flee to the U.S., he might well be "safe" from Canadian justice. Being a fugitive is an unhappy state of affairs, but so is being in prison. There would be a great temptation for Mr.

Matthews, literally, to put all this behind him by fleeing to the U.S., something that he could readily do if released on bail. [ 14 ] While acknowledging the existence of these authorities and the underlying principle of any application pursuant to subsection 679(3) Cr.C . that an appellant seeking release no longer benefits from the presumption of innocence, counsel for Mr. Wilcox advances a number of arguments to justify his request to continue his practice of spending the winter in Florida. [ 15 ] His main contention is that Mr.

Wilcox owns his residence in Montreal, and despite his current lack of immigration status in Canada, he fully intends to apply to regularize his situation here with a view to obtaining permanent resident status once his appeal is allowed and he is acquitted of the charges for which the trial judge convicted him. Having now established significant roots in Montreal, he has no desire to compromise his objective of obtaining permanent resident status by fleeing to the United States. Thus, unlike the appellants in Lasik and Briand , Mr.

Wilcox does not represent a flight risk to avoid having to serve terms of imprisonment in a penitentiary. [ 16 ] Moreover, between the period of the charges against him being laid and the sentencing judgment, he was permitted to return to the United States and never failed to appear in court as required.

He thus has an impeccable record for compliance with the terms of judicial interim release to which he has been subject. [ 17 ] In addition, he has now offered to provide a judicial hypothec of at least $100,000 on his condominium property in Montreal as a guarantee of his return to Canada to face his judicial proceedings and, if his appeal is dismissed, to serve the balance of his sentence. [ 18 ] At my invitation at a resumption of the hearing, I requested counsel for the parties to provide me with reliable information as to whether there would be any problem for Mr.

Wilcox to be re-admitted to Canada, in light of his conviction of an indictable offence, should I be persuaded to allow him to return to the United States pending the outcome of his appeal. [ 19 ] Crown counsel has provided information obtained from an execution officer of the Canada Border Services Agency, the basic premise of which is that pursuant to subsection 52(1) of the Immigration and Refugee Protection Act , [9] a foreign national may not return to Canada if a removal order is enforced unless authorized by an officer.

In that context, "officer" does not mean an officer at a point of entry such as at an airport or a land border crossing, but a Canadian embassy or consular official in the United States to whom Mr. Wilcox would have to make an advance request. [ 20 ] As the result of his conviction, as a foreign national Mr. Wilcox has been made subject to such a removal order pursuant to paragraph 50 (

b) of the Act , the execution of which has been stayed to allow him to serve his conditional sentence in Canada. It seems to me that is the provision that governs his current status in Canada

[ 21 ] Despite being subject to a removal order that is currently stayed, I am not persuaded that subsection 52(1) of the Act is applicable, since Mr. Wilcox would not have left Canada pursuant to the removal order. Instead, his departure would be voluntarily to the extent any judgment I might render authorizes him to do so. Upon returning, he would be seeking re-admission to Canada to comply with any order I might issue. In such circumstances, Mr. Wilcox' admissibility to Canada, should he be authorized to depart Canada, would be seem to be governed by

section 29 of the Act that deals with the authorization of temporary residents, which includes visitors, "to enter and remain in Canada on a temporary basis". Nevertheless, the entry of a foreign national to Canada is always discretionary. [ 22 ] In response to this additional information the Crown supplied, counsel for Mr. Wilcox affirms that his client "has always been permitted to return to Canada for his various court appearances", and that "I can say with a certain confidence that Mr. Wilcox will be allowed to return to Canada for a fixed court date concerning his case". Of course, Mr.

Wilcox' experiences in the past have been when he had not been found guilty of an indictable offence, so in this instance, the past is not necessarily a guarantee of the future. It does seem counter-intuitive, however, to believe that a Canada Border Services Agency officer at an airport or land crossing would deny Mr. Wilcox entry to Canada when the purpose of his entry would be to allow him to comply with any order I might issue. [ 23 ] That being said, I am nevertheless of the view that the conditions of Mr.

Wilcox' "release" pursuant to subsection 679(3) Cr.C . should not include the right to leave the Province of Quebec to return to Florida for the winter. Apart from the fact that he has always done so since establishing himself in Montreal in the manner I have described, Mr. Wilcox advances no particular reason for his request. One might well assume he wishes to avoid the rigours of a Montreal winter compared to the more temperate conditions that would await him in Florida. That, however, is not enough in light, in particular, of the presumption of innocence no longer being in his favour. [ 24 ] Had Mr.

Wilcox alleged the existence of a particularized and compelling reason to temporarily return to the United States for a limited period of time for reasons other than his past practice or what amounts to little more than mere convenience, I might have given favourable consideration to such a request. In the absence of such reasons, his motion will be granted, but with the requirement that he remain in the Province of Quebec during the conduct of the appeal. FOR THESE REASONS: [ 25 ] The petitioner's motion for judicial interim release is granted on the following conditions: 1.

Deposit of $2,500, with the deposit of $1,000 already filed in the Court of Quebec (file 500-01-006624-073) applied to the $2,500 deposit; 2. Keep the peace, be of good behaviour and attend at Court whenever required; 3. Reside at [...], Montreal, Quebec; 4. Not change his address without prior authorization of this Court or one of its judges; 5. Abstain from leaving the Province of Quebec; 6. Surrendur his passport to the Registry of the Court of Quebec, Criminal and Penal Division, and not retrieve it or attempt to obtain another passport or any other travel document 7.

Abstain from communicating directly or indirectly with, being at the residence or place of work of or in the physical presence of G. W. [ 26 ] ORDER that an undertaking of these conditions be given before a justice of the peace assigned to such matters, before the appellant is released. ALLAN R. HILTON,J.A.