2021 QCCA 1595, 2021 QCCA 1595

Wanna c. R. 2021 QCCA 1595 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007679-218 ( 500-01-141575-164 ) MINUTES OF HEARING DATE: October 26, 2021 THE HONOURABLE PETER KALICHMAN, J.A. APPLICANT COUNSEL Daher Wanna Mtre Robert Bellefeuille ( Étude Légale ) By videoconference RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre Marianna Ferraro ( Director of criminal and penal prosecutions ) By videoconference DESCRIPTION: Motion for extension of the delay for appeal ( Art. 678(2) C.cr . ) . Motion for leave to appeal from a sentence imposed on February 8, 2021 by the Honourable Mylène Grégoire of the Court of Québec , District of Montreal (Art. 675(1)

b) C.cr . ) . Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING

Continuation of the hearing held on October 25, 2021. The parties were excused from appearing in Court. BY THE JUDGE: Judgement – see page 3. Mélanie Camiré, Clerk at the hearing JUDGMENT [ 1 ] On December 17, 2019 the Applicant was found guilty by the Court of Quebec, district of Montreal (the honourable Mylène Grégoire) of theft of property, namely a truck and trailer exceeding $ 5,000, and of extortion. On February 8, 2021, he was sentenced to two concurrent terms of nine months of incarceration, probation of two years and a fine of $ 75 000.

The sentence further provides that if the fine is not paid, the Applicant will serve a term of eighteen months of imprisonment. [ 2 ] The Applicant seeks leave to appeal the sentence as well an extension of the delay in which to do so.

The Respondent opposes only the application for leave to appeal. [ 3 ] To succeed in an application to extend the delay to appeal, the Applicant must normally establish the following : ➢ an intention to appeal within the period in which the right of appeal existed; ➢ reasonable diligence in exercising the right of appeal; and ➢ arguable grounds of appeal. [1] [ 4 ] With respect to the first criteria, the Applicant alleges that he expressed his desire to appeal the sentence as soon as it was rendered on February 8, 2021.

He indicates that he said this to his attorney at the time, who referred him to another lawyer who specializes in appeals. The first criteria is therefore satisfied. [ 5 ] As far as the second criteria is concerned, the Applicant alleges that while incarcerated, he communicated with or attempted to communicate with several lawyers who would help him with his appeal. Once he found a lawyer to take his case, he needed to find a way to finance the appeal since he lacked the means to do so himself. Finally, he was able to hire a lawyer who evaluated his case and brought the current applications.

I am satisfied that the Applicant has acted with reasonable diligence in exercising his right of appeal and that the second criteria is therefore satisfied. [ 6 ] The third criteria, arguable grounds of appeal, will be examined together with the motion for leave to appeal. [ 7 ] A person who is convicted in proceedings by indictment may appeal the sentence rendered by the trial court with leave of the Court of Appeal or one of its judges. [2] [ 8 ] Leave to appeal is granted when it is demonstrated that the grounds raised are sufficiently important to justify the Court’s intervention. [3] [ 9 ] The Applicant raises numerous grounds of appeal, including the following: ➢ That the sentence is illegal because, under the circumstances, the trial judge could not order a fine in addition to incarceration and an order of probation; ➢ That the trial judge committed an error of law in the use of her discretion under

section 462.37

(3) Cr.C . in imposing a fine of $75,000 because there was no evidence that he derived a benefit from the commission of the crime; ➢ That the sentence is excessive and unreasonable in view of the Applicant’s lack of revenue; and ➢ That the sentence is not proportional to the gravity of the infraction and the extent of the Applicant’s responsibility, particularly in light of the fact that his employer’s refusal to pay him is what led to the actions for which he was charged. [ 10 ] Without commenting on the Applicant’s chances of success, I am satisfied that he raises grounds that satisfy the requirements both for leave and for an extension of the delay to appeal.

FOR THE REASONS, THE UNDERSIGNED: [ 11 ] GRANTS the Motion to extend the delay to appeal; [ 12 ] EXTENDS the delay in which to appeal the sentence rendered on February 8, 2021 by the Honourable Mylène Grégoire, J.C.Q.; [ 13 ] GRANTS the Motion for leave to appeal the sentence rendered on February 8, 2021, by the Honourable Mylène Grégoire, J.C.Q.; [ 14 ] ORDERS the Applicant, after notification to the Respondent, to file with the Office of the Court, no later than January 17, 2022 , five copies of the documents mentioned in

section 60 R.C.A.Q.C.M . and an argument of no more than fifteen pages; [ 15 ] ORDERS the Respondent, after notification to the Applicant, to file with the Office of the Court, no later than March 14, 2022 , five copies of an argument of no more than fifteen pages; [ 16 ] ORDERS the parties, in accordance with sections 18 and 60 R.C.A.Q.C.M . , to file their argument drafted on good quality white letter paper (21.5 cm by 28 cm) with at least one and one-half spaces between the lines (except for quotations, which shall be single- spaced and indented). The typeface shall be 12-point Arial font for the entire text.

Exceptionally, 11-point Arial font may be used for quotations and 10-point Arial font may be used for footnotes. The margins shall be no less than 2.5 cm. The text shall be reproduced on one side only of each sheet; [ 17 ] ORDERS that the documents filed include a cover page and a table of contents with pages numbered consecutively; [ 18 ] ALLOWS the Respondent, as provided by the second paragraph of

section 60 R.C.A.Q.C.M . , to notify the duly completed questionnaire to the Applicant and file five copies of the questionnaire with the Office of the Court, no later than 21 days before the date of the hearing of the motion for leave or the appeal; [ 19 ] ORDERS the parties to attach a technological version as a USB key to each copy of their documents filed in lieu of the brief. This version must permit keyword searches and include hyperlinks from the table of contents to the documents filed in lieu of the brief and from the argument to the schedules.

The USB key shall be identified in the same matter as a pleading (s. 12 R.C.A.Q.C.M . ) ; [ 20 ] REMINDS the parties that they may notify and file a book of authorities with the Office of the Court at least 30 days before the hearing (s. 46 R.C.A.Q.C.M. ). The book of authorities shall be prepared in accordance with

section 44 R.C.A.Q.C.M . [ 21 ] DEFERS the fixing of a hearing date to the Master of the roles, once the case is ready to proceed. PETER KALICHMAN, J.C.A.