2017 QCCA 198, 2017 QCCA 198

R. c. Umakathan 2017 QCCA 198 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006308-165 (500-01-106904-144) MINUTES OF THE HEARING DATE: January 24, 2017 THE HONOURABLE NICHOLAS KASIRER, J.A. PETITIONER COUNSEL HER MAJESTY THE QUEEN Mtre PIERRE-OLIVIER BOLDUC (Directeur des poursuites criminelles et pénales) RESPONDENT COUNSEL RAJIEENTHAN UMAKATHAN Mtre IZA-LI OUIMET-RATHÉ (Aide Juridique de Montréal) DESCRIPTION: Motion for leave to appeal against the sentence rendered on November 29, 2016 by the Honourable Nathalie Fafard of the Court of Québec, District of Montreal Clerk: Adam Scott Courtroom: RC.18

HEARING 9:32 Roll call. Identification of counsel. Suspension of the hearing.9:35 Continuation of the hearing. Exchange between the judge and Mtre Bolduc.9:38 Exchange between the judge and Mtre Ouimet-Rathé.9:39 Exchange between the judge and counsel.9:42 Suspension of the hearing.10:32 Continuation of the hearing.10:33 Representations by Mtre Bolduc.10:36 Representations by Mtre Ouimet-Rathé.10:40 Reply by Mtre Bolduc.10:41 Suspension of the hearing.11:03 Continuation of the hearing.11:04 BY THE JUDGE: Judgement – see page 3. Conclusion of the hearing. (

s) Adam ScottClerk BY THE JUDGE JUDGMENT [1] Pursuant to section 676(1)(

d) Cr.C., the Crown seeks leave to appeal against a sentence pronounced by the Court of Quebec (theHonorable Judge Nathalie Fafard), rendered on November 29, 2016, following a guilty plea entered by the respondent. The sentencingjudge ordered a conditional discharge of the respondent, with probation for two years and 200 hours of community service.

Thepetitioner has also filed a motion asking for suspension of condition # 8, specifically the requirement that the respondent undertakecommunity service during probation, but that the probation period otherwise be left in place. [2] The respondent is right to argue that the Supreme Court, notably in R. v.

Lacasse, 2015 SCC 64 , [2015] 3 SCR 1089,has observed that sentencing judges should be afforded significant latitude in determining the appropriate sentence in any given case.That said, I am of the view that the motion for leave raises issues that merit the attention of the Court and that the motion should bereferred for consideration to a bench. [3] The motion for suspension of the sentence, as originally framed, does not respect the powers granted to a judge under section683(5)(

e) Cr.C. Specifically, a judge may suspend a probation order pursuant but not one condition of that order which, in my view,might rightly be construed as a change to probation rather than a suspension: see R. v.

Shaw, 2014 ABCA 6, para. 9 (O’Ferrall, J.A., inchambers). [4] Respectfully stated, the request made by the Crown, even if it were available to me, would create an inappropriate circumstancewhereby the two-year probation would run during the appeal proceedings, leaving the respondent with insufficient time, if the appealwere to be dismissed, to complete the designated hours of community service. [5] I suggested to the parties that an alternative approach at this stage would be for the Crown to request suspension of the probationorder and ask that conditions be fixed thereto pursuant to s. 683(5.1).

After discussing the matter with the respondent, the Crown choseto ask for a suspension of probation with conditions. [6] After hearing the parties and noting that the respondent agreed to the conditions proposed, I have concluded that a suspension

subject to conditions should be granted. [ 7 ] The file should proceed on the accelerated track.

THEREFORE, THE UNDERSIGNED: [ 8 ] REFERS the motion for leave to appeal to the Court; [ 9 ] PLACES the case on the role of May 12, 2017, in room Mignault at 9:30am, to be pleaded without briefs for a hearing of 60 minutes of duration (30 minutes each); [ 10 ] ORDERS the petitioner, after having served a copy upon the respondent, to file at the Office of the Court no later than March 1 st , 2017, five copies of the documents that ordinarily constitute Schedules I, II and III of the brief, including the present judgment, a book of authorities and, if applicable, an argument no longer than 15 pages in length; [ 11 ] ORDERS respondent, after serving a copy upon the petitioner, to file at the Office of the Court, no later than April 1 st , 2017, five copies of the questionnaire, a book of authorities, and if applicable, an argument no longer than 15 pages in length; [ 12 ] DIRECTS the parties’ attention to Chief Justice’s notice of July 30, 2014, encouraging the filing with their paper version documents a technologic version that must be in PDF or Word format to enable key-word search and stored on a CD/DVD ROM or USB- key; [ 13 ] GRANTS the motion for suspension in part; [ 14 ] ORDERS the suspension of the probation order imposed on the respondent, subject to the following conditions: - Keep the peace and be of good behaviour; - Not to come into contact, directly or indirectly, with A.

S.; [ 15 ] ORDERS that this undertaking be sworn before a justice of the peace assigned to such matters on or before January 31, 2017. NICHOLAS KASIRER , J.A.