2018 QCCA 1126, 2018 QCCA 1126

K.B. c. R. 2018 QCCA 1126 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL N o : 500-10-006681-181 (500-01-109510-146) MINUTES OF HEARING DATE : July 6, 2018 THE HONOURABLE MANON SAVARD, J.A. APPELLANT COUNSEL K. B. Mtre GABRIEL BABINEAU (Carette Desjardins, s.n.a.) RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre CHRISTIAN JARRY (Directeur des poursuites criminelles et pénales) DESCRIPTION : Application for provisional release. (Sect. 679(1) Cr.C. , 53 R.C.A.C.M. ) Clerk : Mihary Andrianaivo Courtroom : RC.18 HEARING

13:42 Continuation of the hearing of July 4, 2018. The Parties’ attendance is not required,today. BY THE JUDGE: Judgment – See page 3. Mihary AndrianaivoClerk BY THE JUDGE JUDGMENT This file is subject to an order prohibiting the publication or dissemination in any way of the identity of the victim or informationthat would identify her. [1] The applicant was found guilty of seven counts of sexual interference, invitation to sexual touching, sexual assault, analintercourse and uttering threats in respect of his ex-partner’s daughter, who was then under 14 years of age.

He was sentenced to a totalterm of imprisonment of 8 years. He now requests that he be released pending the determination of the appeal against these convictionswhich he filed on 19 June 2018. [2] The Crown contests this application on the sole ground that his detention is necessary to maintain public confidence in thejustice system (subsection 679(3)(

c) Cr.C.). It concedes that the appeal is not frivolous within the meaning of subsection 679(3)(a)Cr.C. – a test that sets a very low bar (R. v. Oland, 2017 SCC 17 , [2017] 1 S.C.R. 250, para. 20) – and that the applicant doesnot pose a danger to the public and will surrender himself into custody in accordance with the terms of the order (subsection 679(3)(b)Cr.C.). [3] It is recognized that what is necessary to preserve public confidence in the justice system consists of two elements: the securityof the public and public confidence in the administration of justice.

The Crown’s argument is not rooted in the first element, but in thesecond one. It insists on the seriousness of the offences of which the applicant was declared guilty and on the severity of the sentence,but mostly on the weakness of his grounds of appeal. The Crown considers that his appeal, without being futile, stands little chance ofsuccess. [4] The objective seriousness of the offences is common ground. The sentence imposed is a lengthy one, and it must be factored intomy analysis (R. v. Oland, para. 38).

The evidence before the first judge essentially consisted of two competing versions, that of thecomplainant on the one hand and that of the applicant who denied everything on the other. The assessment made by the trial judge of thewitnesses’ credibility will certainly demand deference. It will fall to the appeal panel to decide this issue, based on evidence that is notbefore me. However, I find that the notice of appeal also raises issues of law which are clearly arguable and, if resolved in the applicant’sfavour, will affect the entire verdict. As in P.G. c.

R., 2018 QCCA 562, this is not a case in which a “[TRANSLATION] successfulappeal would likely result in the maintaining of a conviction or have limited impact on the sentence” (Charest c. R., 2017 QCCA 2048,para. 77). [5] I must also take into account the fact that the file does not reveal the existence of residual preoccupations with respect to publicsecurity or flight risk.

I note the absence of prior convictions, the applicant’s stable home environment in the last couple of years, hisrelease during the trial proceedings, even between his conviction and the sentencing judgment – the judge having dismissed the twoapplications for immediate custody presented by the Crown after the conviction and after the submissions on the sentence – and, finally,the fact that the offences date back to 1997 and 2004. [6] The Supreme Court writes that “the absence of flight or public safety risks attenuate[s] the enforceability interest” (R. v. Oland,para. 39).

It also reminds us that “[a]ppellate judges across the country deal with applications for bail pending appeal on a regular basis.Of those, only a fraction are likely to involve the public confidence component. Rarely does this component play a role, much less acentral role, in the decision to grant or deny bail pending appeal” (R. v. Oland, para. 29, see also: Vaillancourt c. R., 2018 QCCA 1061,para. 10). I am of the view that such is the case here. [7] Ultimately, having balanced all these factors as well as the facts of the case, I believe reviewability should prevail overenforceability in this instance.

In my opinion, the applicant has demonstrated that he meets all the requirements set out in

section 679Cr.C.

[ 8 ] The conditions of release suggested by the parties in case I would grant the petition are sufficient. FOR THESE REASONS, THE UNDERSIGNED: [ 9 ] GRANTS the application for release from custody; [ 10 ] ORDERS the release of the applicant K. B., with the following conditions : 1. Enter into a recognizance of 2000$ and maintain the deposit of said amount made in first instance; 2. Keep the peace, be of good behavior, and attend Court whenever required. 3. Reside at [...], Town A, Ontario. 4. Not change address without prior authorization from the Court. 5. Abstain from leaving Canada. 6.

Abstain from applying for a passport. 7. Abstain from being within a radius of 50 meters of an elementary school or highschool, except when in movement or stopped at a traffic sign, aboard his commercial truck for the purposes of work. 8. Abstain from being within a radius of 50 meters of a park except when in movement or stopped at a traffic sign, aboard his commercial truck for the purposes of work. 9. Abstain from being within a radius of 50 meters of a daycare center except when in movement or stopped at a traffic sign, aboard his commercial truck for the purposes of work. 10.

Abstain from being within a radius of 50 meters of a public swimming pool except when in movement or stopped at a traffic sign, aboard his commercial truck for the purposes of work. 11. Abstain from being in the provinces of Quebec and Saskatchewan except for court attendance purposes, except to meet with his attorney and except for work purposes and, in this latter case, on condition of possessing a letter or work

schedule attesting to the need for his presence in Quebec or Saskatchewan that can be presented to a peace officer upon request. 12. Abstain from communicating in any manner with the complainant and members of her immediate family, including her stepfather and stepmother, if applicable. 13.

Abstain from having in his possession and carrying, for any purpose whatsoever, offensive or restricted-use weapons or imitation weapons, including starter pistols and pellet pistols, firearms, cross-bows, prohibited weapons, restricted weapons, prohibited devices, ammunition, prohibited ammunition or, explosive substances, knives (except in restaurants and for lawful purposes) and edged weapons. 14. Abstain from being in the presence of minors except in the company of another adult. 15.

Surrender into custody, at the Rivière-des-Prairies Detention Center, within 48 hours of his appeal being dismissed. [ 11 ] ORDERS that this recognizance be entered into before a justice of the peace prior to K. B.’s release from custody. manon savard , J.A.