2022 QCCA 305, 2022 QCCA 305

Milan c. R. 2022 QCCA 305 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-006929-184 ( 500-73-003997-133 SEQ. 004) MINUTES OF HEARING DATE: March 1, 2022 THE HONOURABLE MARIE-JOSÉE HOGUE, J.A. APPLICANT COUNSEL Marco Milan Mtre Benjamin Wilner ( Shadley Bien-Aimé ) By videoconference RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre Simon Richard ( Service des poursuites pénales du Canada ) By videoconference DESCRIPTION: Motion for release from prison pending leave to appeal (Sect. 679(1)c), 679(3) Cr.C . and sect. 31 R.C.A.Q.i.C.M. ) .

Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING 9:31 Commencement of the hearing. Identification of counsel. Preliminary remarks. 9:34 Submissions by Mtre Wilner. 9:34 Recess of the hearing.

9:35 Resumption of the hearing. Continuation of the submissions by Mtre Wilner. 9:46 Submissions by Mtre Richard. 9:52 Questions by the Judge to counsel and their answers. 9:55 Recess of the hearing. 14:31 Resumption of the hearing. BY THE JUDGE: Judgment – see page 3. 14:32 Conclusion of the hearing. Mélanie Camiré, Clerk at the hearing JUDGMENT [ 1 ] The Applicant Marco Milan seeks his judicial interim release pursuant to

section 679, subs. (1)(

c) and (3) of the Criminal Code . [ 2 ] An arrest warrant was issued against him on June 7, 2013, for offences related to the importation of narcotics. [ 3 ] He appeared on June 12, 2013, and was released on conditions. [ 4 ] He presented an Application to stay the proceedings due to unreasonable delay under s. 11b) of the Canadian Charter of Rights and Freedoms but the Application was dismissed on January 10, 2018. [ 5 ] On November 12, 2018, he was found guilty on all four counts of the indictment and, on February 9, 2019, was sentenced to 30 months’ imprisonment. [ 6 ] He appealed his conviction to this Court and, pending such appeal, was released on conditions by a judge of the Court. [1] These conditions were varied by another judge of the Court to allow the Applicant to travel abroad for business purposes. [2] [ 7 ] On December 1, 2021, the Applicant’s appeal was dismissed and he was ordered to surrender to Correctional Authorities within 72 hours of the release of the Court’s judgment. [3] [ 8 ] The Applicant surrendered himself within the above-mentioned delay. [ 9 ] On January 26, 2022, he filed an application seeking leave to appeal the Court’s decision to the Supreme Court of Canada.

He contends that his Application to stay the proceedings should have been granted and raises a question about the transitional exception and the standard of review. [ 10 ] He now requests to be released on conditions pending his appeal process before the Supreme Court of Canada. [ 11 ] Section 679(3) sets out the criteria that must be established by an applicant to obtain judicial interim release:

(3) In the case of an appeal referred to in paragraph (1)(

a) or (c), the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes that (

a) the appeal or application for leave to appeal is not frivolous; (

b) he will surrender himself into custody in accordance with the terms of the order; and (

c) his detention is not necessary in the public interest.

(3) Dans le cas d’un appel mentionné à l’alinéa

(1) a) ou c), le juge de la cour d’appel peut ordonner que l’appelant soit mis en liberté en attendant la décision de son appel, si l’appelant établit à la fois :

a) que l’appel ou la demande d’autorisation d’appel n’est pas futile;

b) qu’il se livrera en conformité avec les termes de l’ordonnance;

c) que sa détention n’est pas nécessaire dans l’intérêt public. [ 12 ] Although it is difficult to determine the likelihood that leave to appeal be granted, I am satisfied that the first criterion is satisfied. The bar is low and the criterion is met when the leave to appeal appears to have some substance, which is the case here. [ 13 ] The second criterion is also met as recognized by the Crown. The Applicant was always granted bail and he never failed his conditions. He was present in Court when needed and surrendered to the Correctional Authorities when ordered to do so.

I then have no reason to believe that it will be otherwise if his application to the Supreme Court is refused or his appeal dismissed. [ 14 ] The last criterion encompasses two components: public safety and public confidence in the administration of justice. [4] [ 15 ] The file suggests that public safety is not at risk here. The offences were committed in 2013 and since then the Applicant did not have any known wrongdoing. Except for these offences, he does not have a criminal record nor any pending cases.

Furthermore, he respected all of his conditions pending both the proceedings in the first instance and those in appeal. [ 16 ] I am also satisfied that a well-informed member of the public would not lose confidence in the administration of justice because bail is granted pending the Applicant’s application to the Supreme Court of Canada. [ 17 ] In the result, I would grant bail on the original conditions that applied while his appeal was pending in this Court. THEREFORE, THE UNDERSIGNED: [ 18 ] GRANTS Mr.

Milan’s application and ORDERS his judicial interim release pending the determination of his appeal to the Supreme Court of Canada on the following conditions: 1) Maintain a personal deposit on bail towards the Quebec Ministry of Justice for the amount of two thousand and five hundred dollars ($2,500). 2) Keep the peace, be of good behaviour and attend court whenever required; 3) Reside at [...], city of Caledon, [...], province of Ontario; 4) Not to change his address before and without having obtained permission of this Court or one of its judges; 5) Advise Carly Norris and/or Simon Richard of the Public Prosecution Service of Canada in writing at least 14 days in advance of any plans involving his departure from Canada for legitimate business purposes, including the projected itinerary; 6) Obtain written authorization from Carly Norris and/or Simon Richard of the Public Prosecution Service of Canada in advance of any such plans; 7) Not be absent from Canada except for legitimate business purposes, and never for a period of over 30 days; 8) Constitute himself prisoner to the carceral authorities as soon as his appeal would be dismissed or before any delay determined by the Court or one of its judges. [ 19 ] ORDERS that the present undertaking be subscribed before a justice of the peace assigned for such purpose prior to the appellant being released from custody.

MARIE-JOSÉE HOGUE, J.A.