2012 QCCA 1907, 2012 QCCA 1907

Gagnon c. R. 2012 QCCA 1907 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: Kimberly Gagnon 500-10-005155-120 500-10-005228-125 500-10-005229-123 500-10-005230-121 500-10-005231-129 Raymond Baird 500-10-005154-123 500-10-005225-121 500-10-005226-129 500-10-005227-127 (450-01-069869-118) (450-01-069869-118) (450-01-059325-097) (450-01-058955-092) (450-01-058954-095) (450-01-059956-099) (450-01-059956-099) (450-01-059324-090) (450-01-072247-112) DATE: OCTOBER 26, 2012 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. JACQUES CHAMBERLAND, J.A. JACQUES A. LÉGER, J.A.

KIMBERLY GAGNON and RAYMOND BAIRD PETITIONERS – Defendants HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT [ 1 ] The Court is seized with a number of motions and amended motions (62 in total) for 1) leave to appeal from both the verdict and the sentence rendered in the above-captioned files with regard to various fraud-related infractions committed on six different victims, over a period of almost three years extending from August 2008 to April 2011, involving amounts varying from a few dollars to close to $100,000; 2) extension of the time fixed for instituting an appeal; 3) release from prison (in the case of Petitioner Raymond Baird); and 4) permission to present new evidence. [ 2 ] The verdicts of guilt were rendered, in each case, on the basis of the Petitioners having pleaded guilty – in the case of Petitioner Gagnon, on 3 different occasions and in the case of Petitioner Baird, on 2 occasions – while being assisted by counsel. [ 3 ] The sentences were delivered, in each case, on the basis of a joint submission made by counsel for the Director of Public Prosecution and for the Petitioners. [ 4 ] Petitioner Raymond Baird is an American citizen who allegedly entered Canada illegally.

He is detained since he was arrested on April 29, 2011. [ 5 ] Petitioner Kimberly Gagnon is both an American and a Canadian citizen. She is the mother of 5 children, two of whom are adults. [ 6 ] The Motions for leave to appeal from both the verdict and the sentence are presented well beyond the 30-day delay.

However, the Court is satisfied with the reasons mentioned by both Petitioners to justify the delay to appeal from the verdicts and sentences. [ 7 ] The "Motions to Extend the Expiration of the Time for Instituting an Appeal" (9 in total) will thus be granted. [ 8 ] However, the "Motions for Leave to Appeal from a Conviction" (4 in the name of Petitioner Baird and 5 in the name of

Petitioner Gagnon) and the "Motions for Leave to Appeal Against a Sentence" (4 in the name of Petitioner Baird and 5 in the name ofPetitioner Gagnon) ought to be dismissed. [9] The verdicts of guilt were rendered after the Petitioners, who were at the time duly represented by counsel, had pleaded guilty.

On the basis of the record before us, including the transcripts of the hearings before Chapdelaine J. and Fabi J. on May 12, 2009, June29, 2011, July 12, 2011 and March 19, 2012, there is no reason to believe that the verdicts could be set aside. [10] Both Petitioners pleaded guilty on more than one occasion, as already mentioned, 3 in the case of Petitioner Gagnon and 2 inthe case of Petitioner Baird. Petitioner Gagnon even participated actively in the sentencing process and a pre-sentence report wasprepared, with her cooperation, for the benefit of the sentencing judge.

The allegation that they were threatened, or forced, to pleadguilty is not supported and, in the circumstances, appears frivolous. [11] The sentences were rendered on March 19, 2012. In R. v. Nasogaluak, 2010 SCC 6 , [2010] 1 S.C.R. 206, at par. 46,appellate courts are reminded that they must grant sentencing judges considerable deference when reviewing the fitness of a sentence.

A sentence can only be interfered with if it is "demonstrably unfit" or if it reflected an error in principle, the failure to consider a relevantfactor or the over emphasis of a relevant factor. [12] Again, on the basis of the record before us and of the reasons mentioned in Petitioners' Motions the Court fails to see how thesentences imposed in these cases could be interfered with. [13] In this context, Petitioner Baird's Motions for Release from Prison (4 in all) ought to be dismissed inasmuch as Petitioner willnot be granted leave to appeal from the verdicts and the sentences. [14] The "Motions for Permission to Present New Evidence" (13 in total, for Petitioner Baird and 18 in total for Petitioner Gagnon)are dismissed, but one, inasmuch as they do not meet the criteria set in Palmer v.

The Queen, (SCC), [1980] 1 S.C.R. 759,at p. 775, regarding the admissibility of fresh evidence in appeal; Petitioner Baird's motion in file 500-10-005154-123 (450-01-069869-118) regarding the transcripts of the hearings held on June 29, 2011 and March 19, 2012 will however be granted. [15] FOR THESE REASONS, THE COURT: [16] GRANTS all 9 Motions to Extend the Expiration of the Time for Instituting an Appeal; [17] DISMISSES all 18 Motions for Leave to Appeal from a Conviction and the Motions for Leave to Appeal Against a Sentence; [18] DECLARES Petitioner Raymond Baird's 4 Motions for Release from Prison without object and thus, STRIKES them from theroll; [19] GRANTS Petitioner Raymond Baird's Motion for Permission to Present New Evidence in file 500-10-005154-123 (450-01-069869-118) and AUTHORIZES the filing into the record of the Court of Appeal of the transcripts of the hearings held on June 29,2011 and March 19, 2012 and DISMISSES all other 30 Motions for Permission to Present New Evidence.

NICOLE DUVAL HESLER, C.J.Q. JACQUES CHAMBERLAND, J.A. JACQUES A. LÉGER, J.A. Mrs. Kimberly GagnonPersonally Mr. Raymond BairdPersonally, by visioconference Mtre Daniel RoyerCriminal and Penal Prosecuting Attorney Date of hearing: October 22, 2012