2019 QCCA 2135, 2019 QCCA 2135

I.M. c. R. 2019 QCCA 2135 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007213-190 ( 500-01-152306-178 ) MINUTES OF HEARING THE PUBLICATION BAN IS STILL IN FORCE ON ANY INFORMATION THAT COULD IDENTIFY THE VICTIMS (s. 486.4 Cr.C .) DATE: December 3, 2019 THE HONOURABLE ROBERT M. MAINVILLE, J.A. APPELLANT COUNSEL I. M. Mtre Benjamin Wilner ( Shadley Bien-Aimé ) RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre marianna ferraro ( Director of Criminal and Penal Prosecutions ) DESCRIPTION: Application for release from custody . (Section 679 (1) Cr.c.) Clerk at the hearing : Elisabeth Lepage Courtroom: RC-18 HEARING

9:32 Commencement of the hearing. Discussion between the Court and Mtre Wilner. 9:34 Submissions by Mtre Wilner. 9:46 Discussion between the Court and Mtre Wilner. 9:51 Submissions by Mtre Ferraro. 10:09 Reply by Mtre Wilner. 10:15 Discussion between the Court and Mtre Wilner. 10:19 Remarks by Mtre Ferraro. 10:20 BY THE COURT: Judgment –see page 3. Conclusion of the hearing.

Elisabeth Lepage, Clerk at the hearing JUDGMENT THE PUBLICATION BAN IS STILL IN FORCE ON ANY INFORMATION THAT COULD IDENTIFY THE VICTIMS (s. 486.4 Cr.C .) [ 1 ] On October 17, 2019, the applicant was found guilty of four counts of sexually-related offences upon his former step-daughter, including sexual assaults. These offences were carried out repeatedly over a period of many years, spanning from the time the complainant was twelve years old to when she was nineteen. [ 2 ] The trial judge revoked the applicant’s bail shortly after the verdict was rendered.

A sentencing hearing is set for February 6, 2020. [ 3 ] On November 15, 2019, the applicant appealed his conviction to this Court on two principal grounds: (

a) the judge erred in admitting certain exhibits, namely a picture of a Koran with a page missing and a picture of a scar on the complainant’s chest, and (

b) he also erred in applying the principles set out in the well-known decision of R. v. W.(D.) . [ 4 ] Though he has yet to be sentenced, the applicant now seeks to be released from custody pending his appeal. [ 5 ] It has been the constant and unanimous view of this Court that exceptional circumstances are required to grant such an application for release before sentencing: Lévesque c. R. , 2019 QCCA 1368 ; Mukendi Wa Bukole c. R. , 2019 QCCA 1192 ; Guérard c. R. , 2018 QCCA 424 ; D.V. c. R. , 2017 QCCA 934 ; P.G. c. R. , 2017 QCCA 811 ; Vallières c. R. , 2016 QCCA 1922 ; Leboeuf c.

R. , 2016 QCCA 534 ; Ménard c. R. , 2013 QCCA 1215 ; Piccini c. R. , 2011 QCCA 1844 ; Imbeault c. R. , 2008 QCCA 1964 . [ 6 ] The trial judge ordered that the applicant be held in custody pending sentencing. He presided over the applicant’s trial, heard

all the testimony and considered all the evidence. Based on this information, he formed an opinion as to whether or not the public interestwarranted that the applicant be incarcerated pending sentencing and concluded that detention was necessary. [7] As noted by Turnbull, J.A. in R. v. C.V.S., (2002) (NB CA), 255 N.B.R. (2d) 201 (C.A.): The cases indicate that a judge of a Court of Appeal will generally not interfere with the exercise of a trial judge's remand discretion andrelease a person from custody pending sentencing. See MacFarlane J.A. in Osolin.

It seems to me that the reason for requiring the higher onus from the applicant seeking release is because the trial judge still has thesentencing function of the trial to complete. As Justice Flinn noted in Hart at p. 224: The words of Brooke J.A. in R. v. Bencardino (1973), (ON CA), 11 C.C.C. (2d) 549 (Ont. C.A.) at p. 551, areparticularly appropriate here: While the sentence imposed does not affect jurisdiction, nevertheless, there is a serious question in each case as to whether or not releaseshould be granted before the sentence is imposed.

In the case at bar, clearly, the trial Judge did not think that the applicants should be atliberty at this time and he cancelled their conditional release and ordered that they be held in custody pending sentence. I have not hadthe benefit of his reasons which prompted him to take this step.

However, he has presided over a lengthy trial, heard all of the evidence,formed opinions as to these two men; and I have no doubt having regard to considerations, including the likelihood of their appearancefor sentence and the public interest, he concluded that detention was necessary. [8] The applicant submits that, in his case, the time between the verdict and the sentencing hearing, a period of over three and ahalf months, constitutes an exceptional circumstance which should justify his immediate release.

An extended time for determiningsentencing may indeed constitute a circumstance for considering the release of an appellant: Mukendi Wa Bukole c. R., 2019 QCCA1192, para. 9; Pineault c. R., 2016 QCCA 1283, para. 2. However, in determining whether a delay in sentencing constitutes anexceptional circumstance, consideration must also be given to the objective gravity of the offence which resulted in the guilty verdict andto the reasons for which sentencing is delayed, such as the need for a presentencing report or the unavailability of defense counsel: D.V.v.

R., 2017 QCCA 934, para. 14. [9] Consequently, this Court has rarely granted applications for release pending appeal, but before sentencing. Of the abundantdecisions of this Court referred to by the parties, only two have granted such an application, but the facts in each were quite different thanin the case at hand. In Mukendi Wa Bukole v. R., supra, no sentencing hearing had been set and it was feared that the actual sentencingprocess would last an indefinite period. In Dumont v. R., (Q.C. C.A.), the sentencing process had stretched out over aperiod of close to six months. Yet, in Ménard v.

R., 2013 QCCA 1215, a similar six-month sentencing process was not deemed in thatcase to constitute an exceptional circumstance. [10] Each case must, of course, be determined on its own facts. In this case, taking into account the objective gravity of the offencesand the expected time for reaching an appropriate sentence, the appellant has failed to convince me that he meets the high threshold of anexceptional circumstance which would justify overturning, at this juncture, the decision of the trial judge to revoke bail. [11] The objective gravity of the offences in the case at hand is high.

Moreover, as noted by Justice Gagnon, J.A. in D.V. v. R.,supra, para. 14, it is not unusual for the sentencing process to take a few months for serious offences. In the present case, this iscompounded by the unavailability of counsel for both sides for sentencing dates in January 2020. [12] The decision to dismiss the application does not preclude the appellant from seeking his release once the sentence has beendetermined. One would expect the trial judge to render his decision as soon as reasonably possible after the sentencing hearing currentlyscheduled for February 6, 2020.

FOR THESE REASONS, THE UNDERSIGNED: [13] DISMISSES the application. ROBERT M. MAINVILLE, J.A.