2017 QCCA 383, 2017 QCCA 383

Patel c. R. 2017 QCCA 383 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006375-172 (500-01-062522-112, SEQ. ACC. 001) 500-10-006376-170 (500-01-062522-112, SEQ. ACC. 002) MINUTES OF THE HEARING DATE: March 10, 2017 THE HONOURABLE MARK SCHRAGER, J.A. N o : 500-10-006375-172 PETITIONER COUNSEL BRIJESH PATEL Mtre KIM HOGAN for Mtre MARC LABELLE (Labelle, Côté, Tabah et Associé

s) RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre Julie Pelletier (Directeur des poursuites criminelles et pénales) N o : 500-10-006376-170 PETITIONER COUNSEL

HIREN PATEL Mtre KIM HOGAN for Mtre MARC LABELLE (Labelle, Côté, Tabah et Associé

s) RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre Julie Pelletier (Directeur des poursuites criminelles et pénales) DESCRIPTION : 500-10-006375-172 Motion for leave to appeal against the sentence rendered on February 2, 2017 by the Honourable Linda Despots of the Court of Quebec, District of Montreal Motion to be released from custody pending the determination of the appeal 500-10-006376-170 Motion for leave to appeal against the sentence rendered on February 2, 2017 by the Honourable Linda Despots of the Court of Quebec, District of Montreal Motion to be released from custody pending the determination of the appeal Clerk: Adam Scott Courtroom: RC-18 HEARING 10:07 Commencement of the hearing.

Identification of counsel. 10:08 Exchange between the judge and Mtre Hogan. 10:10 Submissions by Mtre Hogan. 10:17 Submissions by Mtre Pelletier. 10:23 Exchange between the judge and counsel. 10:28 Suspension of the hearing. 10:31 Resumption of the hearing. Exchange between the judge and counsel. 10:32 BY THE JUDGE : Judgment – see page 4.

Conclusion of the hearing. (

s) Adam Scott Clerk BY THE JUDGE JUDGMENT [ 1 ] I have for adjudication two virtually identical motions for leave to appeal sentence and for release pending appeal. [ 2 ] The judgment rendered on February 2, 2017 by the Court of Quebec, District of Montreal, Criminal Division (the Honourable Linda Despots), sentenced each Petitioner to a total of 35 months and 18 days for a series of counts of robbery, forcible confinement, wearing a disguise, use of an imitation firearm and conspiracy. The accused were arraigned in October of 2011 and pleaded guilty on the first day fixed for trial in October of 2015.

The charges stem from a robbery of a Best Buy electronics store where one of the Petitioners was employed. The accused were 22 and 23 years old at the time the crimes were committed. During their release on bail, there was no breach of condition and there is no evidence of recidivism. [ 3 ] The defence proposed 15 months of imprisonment while the prosecution suggested 4 years. [ 4 ] I will grant leave to appeal the sentence (which is not contested by Respondent) as the grounds invoked are arguable even though generic.

Petitioners argue that the sentences were excessive given the degree of gravity of the crimes, the absence of recidivism and the absence of criminal records. Petitioners also plead that too much weight was given by the sentencing judge to dissuasion and the aggravating factors. [ 5 ] I will deny the release pending appeal as the conditions of article 679(3) Cr.C . are not met. [ 6 ] The appeal is not frivolous even though I have labeled the grounds generic (679(3)(

a) Cr.C . ); nor do I consider the Petitioners to be a flight risk (679(3)(

b) Cr.C. ). [ 7 ] However, the third branch of the test – i.e. the public interest dictates that the Petitioners remain incarcerated is controlling. Petitioners no longer benefit from the presumption of innocence [1] and have received a substantial carceral sentence for a serious, violent crime. [2] [ 8 ] I do not consider Petitioners a risk to public safety. However, even if the Petitioners have some success on appeal in reducing the length of the term of imprisonment, it is unreasonable to assume that they will avoid incarceration.

I underline that the defence suggested 15 months and the judge stated that the range for such offenses established in the case law is 17 months to 6 years.

Thus, with appropriate case management before this Court there is little risk that the appeal will not be heard and decided within a reasonable time in the circumstances. [ 9 ] Considering all the foregoing circumstances, I believe that a reasonably informed member of the public would lose confidence in the administration of justice if Petitioners were released at this time. [3] [ 10 ] Considering that the parties agreed to plead the file on a fast track basis without factum; [ 11 ] Considering that Petitioners are prepared to defray costs of transcription; [ 12 ] Considering that the transcription should be obtainable within 60 days. [ 13 ] Considering Rules 56, 57, 58 and 59 of the Rules of the Court of Appeal of Quebec in Criminal Matters to be read as follows: 56(2).

Timetable . In referring the motion or, if applicable, the appeal to the Court, the Judge shall establish a timetable for the filing, in quadruplicate and after service on the other party, of the documents that stand in lieu of the factum.

56(3). Default . If the documents are not filed before the time limit has passed, the clerk shall file a certificate of default in the record and shall thereafter refuse any documents from the defaulting party. A notice of the filing of this certificate shall be delivered immediately to the Chief Justice and to the judges who are to hear the motion or the appeal. 57. Documents.

The appellant shall file the following documents: the motion for leave to appeal; the indictment; the sentence, including the reasons and the conclusion; the depositions from the sentencing hearing, if any; any other relevant remarks of the trial judge and counsel in the course of submissions as to the sentence; the questionnaire on the form in

Schedule 1, duly completed. 58. Respondent’s questionnaire. At least three weeks before the date of the hearing of the motion or the appeal, the respondent may also serve the questionnaire, duly completed, on the appellant and file the questionnaire at the Office of the Court, in quadruplicate . 59(1). Argument. The parties may include an argument no longer than 10 pages in length with their documents. It shall have at least one and one-half spaces between the lines, with the exception of quotations, which shall be single-spaced and indented.

The characters shall be in 12-point font size, and there shall be no more than 12 characters per 2.5 cm. 59(2). A judge may order that an argument be prepared when the issues raised by the appeal so warrant.

FOR THESE REASONS, THE UNDERSIGNED: [ 14 ] GRANTS authorization for leave to appeal the sentences imposed on February 2, 2017 by the Honourable Linda Despots, Court of Quebec, District of Montreal, Criminal Division, in file number 500-01-062522-112; [ 15 ] ORDERS that the appeals proceed on a fast track basis; [ 16 ] PLACES both cases on the role of August 8, 2017, in room RC-08 at 9:30 am, to be pleaded together during a hearing of 90 minutes of duration (45 minutes each party); [ 17 ] ORDERS the Petitioners to file an argument no longer than 15 pages in length, after having served a copy upon the Respondent, at the Office of the Court no later than June 6, 2017, five copies of the documents that ordinarily constitute Schedules I, II and III of the fast track basis, including the present judgment and a book of authorities; [ 18 ] ORDERS Respondent to file an argument no longer than 15 pages in length, after serving a copy upon the Petitioners, at the Office of the Court, no later than July 4, 2017, five copies of the questionnaire and a book of authorities; [ 19 ] DECLARES that the parties may file one and the same argument for both appeals; [ 20 ] DIRECTS the parties’ attention to the Chief Justice’s notice of July 30, 2014, encouraging the filing with their paper version documents a technologic version that must be in PDF or Word format to enable key-word search and stored on a CD/DVD ROM or USB- key. [ 21 ] DISMISSES both motions for release pending determination of appeal.

MARK SCHRAGER, J.A.