2012 QCCA 1860, 2012 QCCA 1860

Parkinson-Makara c. R. 2012 QCCA 1860 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-004541-098 ( 550-01-034489-080 ) MINUTES OF THE HEARING DATE: October 16, 2012 THE HONOURABLE NICHOLAS KASIRER, J.A. PETITIONER ATTORNEY BROOK PARKINSON-MAKARA Representing himself (ABSENT) RESPONDENT ATTORNEY HER MAJESTY THE QUEEN Mtre Jean Campeau (ABSENT) Procureur aux poursuites criminelles et pénales MOTION FOR INTERIM RELEASE Clerk: Annick Nguyen Court Room: ——

HEARING Continuation of October 15, 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 ] Brook Parkinson-Makara has applied for interim release pending his appeal that will be heard by a panel of this Court on November 6, 2012. [ 2 ] The appellant is self-represented. His motion, as drafted, rests expressly on

section 53 of the Rules of the Court of Appeal in Criminal Matters but its jurisdictional basis is otherwise unclear. [ 3 ] On June 1, 2011, Duval-Hesler, J.A. (as she then was) ordered Mr. Parkinson-Makara's interim release pursuant to s. 679(3) Cr.C. My colleague noted that Mr.

Parkinson-Makara would be subject to long term supervision in the community in accordance with s. 753.2 Cr.C . [ 4 ] While on bail awaiting his appeal, he was charged with the indictable offence of failing to abide by the conditions relating to the consumption and possession of drugs as part of a long term supervision order, pursuant to s. 753.3(1) Cr.C . On August 15, 2011, the long term supervision order to which he was subject was suspended and he was incarcerated. [ 5 ] On December 21, 2011, the Crown moved to revoke interim release on the basis of s. 680 Cr.C.

Doyon, J.A. granted the substance of the motion, but decided that his jurisdiction rested on ss. 679 and 525 Cr.C. and not s. 680 Cr.C.

My colleague also wrote: [9] Quant à la demande présentée par l'avocat de monsieur PARKINSON-MAKARA voulant que ma décision ait un effet rétroactif, je suis d'avis que la loi ne m'accorde ce pouvoir, mais je mentionne que la Cour ou un tribunal pourra, s'il y a lieu, tenir compte des circonstances très particulières de la détention de monsieur PARKINSON-MAKARA depuis le mois le 15 août 2011, moment où la suspension de l'ordonnance de surveillance de longue durée a eu lieu. [ 6 ] Subsequent to this judgment, the appellant pleaded guilty to the offence for which he had been charged during his time on bail. *** [ 7 ] In support of his application for interim release, the appellant argues that his sentence has, according to his calculation, been served to completion.

He contends that the principle established in s. 753.2 Cr.C. is that custodial sentences are to be served to completion before any period of a long term supervision order can be counted. He contends that his interim release on June 1, 2011 interrupted his sentence but did not mark its completion. According to his

interpretation of s. 753.2 Cr.C. , his custodial sentence commenced again when he was incarcerated on August 15, 2011, such that by October 10, 2011, his prison term was complete. He

describes this as a "retroactive calculation of a custodial sentence". [1] [ 8 ] Mr. Parkinson-Makara states in his motion that if the Court of Appeal fails to provide him with interim release pending his appeal at once, "the result will be the Appellant being compelled to spend more time in custody than the original mandate". *** [ 9 ] The appellant's argument, in essence, is that he should be released because his sentence is complete.

While he asks the Court for "interim release", he argues in fact that he deserves a definitive release in that he is being held in custody for no reason. [ 10 ] He has not, of course, made an application for habeas corpus .

He asks me to make the "retroactive calculation" of his sentence served for which, as Doyon, J.A. wrote in the excerpt cited above, a judge in chambers has no power to undertake under s. 679 Cr.C . [ 11 ] I asked the parties for their views on the basis on my jurisdiction to grant interim release. [ 12 ] No application was made under s. 680 Cr.C . to review the decision of Doyon, J.A., whether or not that application may have been possible in the circumstances. [ 13 ] In order to support a new application under s. 679(3) Cr.

C. , the appellant would have to show a "material change of circumstances" that might have altered the assessment of the statutory factors set out in s. 679(3) Cr.C . when interim relief was revoked. [2] Mr. Parkinson-Makara suggests the expiry of his prison sentence, based on the retroactive calculation of the time served he proposes, means that holding him in custody pending appeal is the source of unnecessary hardship that was not the case at the time of Doyon, J.A.'s decision. [ 14 ] I disagree that a material change of circumstances has been shown.

Time has passed, but to conclude that the appellant's prison term has expired – thereby constituting a changed circumstance since the judgment of Doyon, J.A. – I would have to adopt the appellant's retroactive means of calculating the sentence which, as noted above, I have no power to do. If there is any other change to speak of since the judgment of Doyon, J.A., it is the advent of the guilty plea which, in my view, does not materially change Mr.

Parkinson-Makara's circumstances in respect of the criteria in s. 679(3) Cr.C. to his advantage. [ 15 ] There being no established jurisdictional basis for interim release, the application must be dismissed. FOR THESE REASONS , the undersigned: [ 16 ] DISMISSES the motion for interim release. NICHOLAS KASIRER, J.A.