2017 QCCA 1888, 2017 QCCA 1888

Secondo c. R. 2017 QCCA 1888 COUR D'APPEL CANADA PROVINCE DE QUÉBEC GREFFE DE MONTRÉAL N o : 500-10-006339-160 (500-01-091933-132) PROCÈS-VERBAL D'AUDIENCE DATE : Le 30 novembre 2017 L’HONORABLE MARIE-JOSÉE HOGUE, J.C.A.

REQUÉRANT AVOCATE ANTONIO SECONDO Mme CHRISTINA NASRAOUI, stagiaire pour le compte de Me MARIE-HÉLÈNE GIROUX (Monterosso Giroux Lamoureux Avocats) INTIMÉE AVOCATE SA MAJESTÉ LA REINE Me Marianna Ferraro (Directeur des poursuites criminelles et pénales) DESCRIPTION : Requête en sursis d’exécution de la peine prononcée le 22 novembre 2017 par l’honorable Sylvie Durand de la Cour du Québec, district de Montréal. (Art. 683(3) C.cr. ) Greffier d'audience : Mihary Andrianaivo SALLE : RC.18

AUDITION Continuation de l’audition du 29 décembre 2017. PAR LA JUGE : Jugement – voir page 3. Mihary Andrianaivo Greffier d'audience PAR LA JUGE JUGEMENT [ 1 ] I am seized with a motion to suspend a conditional sentence order of 15 months of imprisonment followed by probation of two years with various conditions as per section 683(5) Cr.C . [ 2 ] On December 20, 2016 the appellant was found guilty on a count of fraud (art. 380 (1)(

a) Cr.C .) as well as on many counts of forgery, use of false cheques and false statements of accounts (367(1)(

a) and 368(1)( a )(

c) Cr.C. ). [ 3 ] He has appealed this verdict. [ 4 ] He was sentenced on November 22, 2017, by the Honourable Sylvie Durand, j.c.q. [ 5 ] The conditions imposed upon him were the following : 1. Keep the peace and be of good behaviour; 2. Appear before the Court when required to do so by the Court; 3. Report to a supervisor within two working days following the issue of this order, and thereafter, when required by the supervisor and the manner directed by the supervisor; 4. Remain in the province of Quebec, unless written permission to go outside that province is obtained from the Court; 5.

Notify the supervisor of any change of address or name and promptly notify of any change of employment or occupation; 6. Not be within a 200-metre radius of the home of TANIA DAIANSKA, from the place of schooling and from the workplace of TANIA DAIANSKA; 7. Not be in the physical presence of TANIA DAIANSKA; 8. Perform 100 hours of community service within 12 months, as of and comply with the terms of performance indicated by the supervisor; 9

A) Abstain from having in his possession any banking document whatsoever including a credit card, automated teller card, cheque or bank draft not made out to or in his name. 10

A) Shall be present at his domicile: (I) 24 hours on 24, 7 days over 7, for the first 7 months, except: (II) Between 11 PM and 7 AM, 7 days over 7, for the 8 other months, except: 1) (I) (II) For a legitimate and remunerated work to go to and directly return, must provide probation officer detailed work

schedule in advance; 2) (I) (II) For medical purposes for him / himself and immediate family must provide proof as soon as possible to probation officer;

3) (

I) On Thursday between 1 PM and 5 PM, to provide for his feeding needs & for essential needs; 4) (I) (II) For execution of his community works hours; 5) (

I) For his visits to his surveillance officer; 6) (I) (II) With the written authorization from his surveillance officer; 7) (I) (II) For voluntary work at "La Fabrique St-Aloysius Parish,” and must provide your probation officer/supervisor a detailedschedule in advance.

B) Orders the accused to have a telephone line available at all time and prohibits any call forwarding device; C) 15 days’ time allowed for the installation of ordinary telephone line;

D) Orders the accused to answer phone calls made to his residence;

E) Prohibits to hold a telephone conversation with a third party for more than 15 minutes;

F) Leave free access to his surveillance officer (or to his representative) to his domicile at all time. [6] The appellant argues that he should not have to suffer the consequences of this sentence before a definitive decision on the appealfrom his conviction is rendered. [7] Article 683(5) and (5.1) Cr.C. read as follows : 683. […]

(5) Lorsqu’un appel ou une demanded’autorisation d’appel ont été déposés, lacour d’appel ou l’un de ses juges peut, s’ilestime que l’intérêt de la justice l’exige,ordonner de suspendre jusqu’à décisiondéfinitive sur l’appel :

a) le paiement de l’amende;

b) l’ordonnance de confiscation ou dedisposition de biens confisqués;

c) l’ordonnance de dédommagement visée aux articles 738 ou 739;

d) le paiement de la suramendecompensatoire visée à l’article 737;

e) l’ordonnance de probation visée à l’article731;

f) l’ordonnance de sursis visée à l’article742.1. 683. […]

(5) If an appeal or an application for leaveto appeal has been filed in the court ofappeal, that court, or a judge of that court,may, when the court, or the judge,considers it to be in the interests of justice,order that any of the following besuspended until the appeal has beendetermined: (

a) an obligation to pay a fine; (

b) an order of forfeiture or disposition offorfeited property; (

c) an order to make restitution undersection 738 or 739; (

d) an obligation to pay a victim surchargeunder

section 737; (

e) a probation order under

section 731; and (

f) a conditional sentence order undersection 742.1.

(5.1) Avant de rendre une ordonnance desuspension en vertu des alinéas

(5) e) ou f), lacour d’appel ou l’un de ses juges peutordonner que le délinquant remette unepromesse ou contracte un engagement. [Soulignement ajouté]

(5.1) Before making an order underparagraph (5)(

e) or (f), the court of appeal,or a judge of that court, may order theoffender to enter into an undertaking orrecognizance. [Emphasis added] [8] In R. v.

Chek TV Ltd. (1986), (BC CA), 27 C.C.C. (3d) 380, the British-Columbia Court of Appeal reminded thatthe expression "the interests of justice" is not limited to the interests of the appellant, but must also take into account those of therespondent as well as the public trust in the courts and in the administration of the criminal justice system. [9] I am of the view that the appellant satisfies this criterion given the following context: 1) The Crown is not opposed to the request to suspend as long as the appellant is ready to enter into an undertaking to respect certainconditions; 2) The appellant is ready to enter into an undertaking, as per article 683(5.1) Cr.C., to respect the following conditions:

1. Keep the peace and be of good behaviour; 2. Appear before the Court when required to do so by the Court; 3. Report to a supervisor within two working days following the issuing of this order, and thereafter, where required by the supervisor and in the manner directed by the supervisor; 4. Notify the Court of any change of address or name and promptly notify of any change of employment or occupation; 5. Not be within a 200-metre radius of the home of TANIA DAIANSKA, of the place of schooling and of the workplace of TANIA DAIANSKA; 6. Not be in the physical presence of TANIA DAIANSKA; 7.

Abstain from having in his possession any banking document whatsoever including a credit card, automated teller card, cheque or bank draft not made out to or in his name; 8.

Maintain the undertaking with deposit by a third party in the amount of $5 000 as ordered by the Honourable Justice Joëlle Roy, j.c.q., on September 19, 2017, in the court docket file 500-01-091933-132 (C.Q.). [ 10 ] The suspension will come into force only once this undertaking will have been duly signed; FOR THESE REASONS, THE UNDERSIGNED: [ 11 ] GRANTS the motion; [ 12 ] SUSPENDS the conditional sentence order issued on November 22, 2017; [ 13 ] ORDERS the appellant to enter into an undertaking to respect the following conditions: 1. Keep the peace and be of good behaviour; 2.

Appear before the Court when required to do so by the Court; 3. Report to a supervisor within two working days following the issuing of this order, and thereafter, where required by the supervisor and in the manner directed by the supervisor; 4. Notify the Court of any change of address or name and promptly notify of any change of employment or occupation; 5. Not be within a 200-metre radius of the home of TANIA DAIANSKA, of the place of schooling and of the workplace of TANIA DAIANSKA; 6. Not be in the physical presence of TANIA DAIANSKA; 7.

Abstain from having in his possession any banking document whatsoever including a credit card, automated teller card, cheque or bank draft not made out to or in his name; 8. Maintain the undertaking with deposit by a third party in the amount of $5 000 as ordered by the Honourable Justice Joëlle Roy, j.c.q., on September 19, 2017, in the court docket file 500-01-091933-132 (C.Q.). [ 14 ] ORDERS that the suspension granted come into force only upon the signature of the undertaking by the appellant. marie-josée hogue, J.C.A.