2016 QCCA 183, 2016 QCCA 183

D'Amico c. R. 2016 QCCA 183 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005761-141 (500-01-009195-089) DATE: January 21, 2016 IN THE PRESENCE OF THE HONOURABLE MANON SAVARD, J.A. GIOVANNI D’AMICO APPLICANT - Accused v.

HER MAJESTY THE QUEEN RESPONDENT - Prosecutrix JUDGMENT [ 1 ] Applicant petitions for his interim release pending adjudication of his appeal from guilty verdicts rendered by the Court of Quebec, District of Montreal, Criminal Division (the Honourable Isabelle Rhéault), on October 21, 2014 on four counts of sexual assault on four separate victims and one count of an assault. The context [ 2 ] The investigation of a sexual assault and murder of a prostitute in November 2007 eliminated Applicant as a suspect for this crime.

It however contributed to, on the basis of his DNA obtained in the course of this investigation, the suspicions of the police that Applicant was responsible for a number of unsolved sexual assaults on prostitutes that occurred between 2002 and September 2005. [ 3 ] The Applicant was arrested on July 16, 2008 for these offences.

He was granted judicial interim release on August 11, 2008, subject to strict conditions, including a curfew from 10 pm to 6 am, restrictions on leaving the residence unless accompanied by an adult family member and this only for work or medical purposes, to meet his lawyer or attend court, as well as the imposition of a cash deposit of $15,000.

The conditions were made less severe at the end of the preliminary inquiry but included a prohibition of being in the areas of Montreal where the crimes were alleged to have occurred. [ 4 ] His 40-day trial took place between September 20, 2011 and October 21, 2014 and resulted in the five guilty verdicts and a stay of proceedings on one count. The trial judge rejected the Crown’s request for immediate incarceration upon the pronouncement of the guilty verdicts. [ 5 ] A pre-sentence report was ordered on November 4, 2014.

The sentencing was postponed on several occasions until December 16, 2015. [ 6 ] On November 21, 2014, the Applicant filed a notice of appeal regarding alleged errors of law and his motion for leave to appeal on mixed questions of fact and law was granted on January 27, 2015.

He then obtained permission from a judge of the Court for an extension of the delay to file his factum to March 22, 2016. [ 7 ] On December 16, 2015, taking into consideration the principles of sentencing enunciated in sections 718 to 718.2 Cr.C. , the pre-sentence report, the psycho-sexual evaluation, the mitigating and aggravating factors, the stringent bail conditions, the pre-sentence detention and the totality principle, Applicant was sentenced in the Court of Quebec as follows, for a total term of incarceration of 12 years: - Count 1 sexual assault on C.-M.F. : 2 ½ years; - Count 2 sexual assault on C.G. : 3 ½ years consecutive; - Count 3 sexual assault on L.N. : 2 ½ years consecutive; - Count 4 sexual assault on J.H. : 3½ years consecutive; - Count 5 assault on J.H. : 6 months concurrent to Count 4; - Count 6: (stayed).

[ 8 ] Applicant intends to file a motion to appeal the sentence. [ 9 ] Respondent contests the interim release arguing that the Applicant failed to meet his burden to show that detention was not necessary in the public interest. Analysis [ 10 ] In order to obtain interim release pending appeal, Applicant must satisfy me, on the balance of probability, that the conditions set forth in section 679(3) of the Criminal Code [1] are met:

a) that the grounds of appeal are not frivolous;

b) that the accused will surrender himself into custody in accordance with the terms of the release order; and

c) the accused’s detention is not necessary in the public interest. Paragraph 679(3)(

a) Cr.C. [ 11 ] The threshold to satisfy the first arm of the test – grounds of appeal are not frivolous – is low. [2] The applicant need not demonstrate that he has a strong probability of succeeding in appeal but merely that the grounds are arguable. [3] [ 12 ] Applicant has alleged that the trial judge committed errors of law or of fact and law concerning the interlocutory trial decisions rendered prior to and over of the trail: i. the judge failed, without a stated justification, to order the complete disclosure of the police file concerning the murder which eventually lead to his arrest through the DNA evidence; ii. the judge wrongly dismissed his motion to sever the counts of the indictment pursuant to subsection 591(3) Cr.C. ; iii. the judge wrongly dismissed his motion to exclude DNA evidence which the Crown introduced with regard to two (out of four) victims ( C.G. and L.N. ) pursuant to sections 7, 8 and 24(2) of the Charter ; iv. the judge mistakenly admitted into evidence the document entitled “Relevé et historique d’appels 911” which the Crown introduced with regard to one victim ( J.H. ); v. the judge mistakenly admitted into evidence the out-of-court statements made by one victim ( C.G. ) who died prior to the preliminary inquiry; vi. the judge erred in granting the Crown’s motion on similar fact evidence; vii. the judge wrongly refused to allow Applicant’s attorney to question one of the detectives in the murder investigation of the prostitute (which lead to his arrest) on a statement made to him by a third party suspect. [ 13 ] Applicant also alleges that the trial judge erred in law and in fact on the merits “in omitting to consider his defence evidence” and in her assessment of the probative value and reliability of the evidence as well the credibility of certain of the victims.

Neither the Applicant’s notice of appeal nor his motion for leave to appeal set forth detailed grounds of appeal on the merits. [ 14 ] The appeal will deal with questions of law and mixed questions of fact and law. Only one of them, i.e. the admissibility of DNA evidence, raises Charter issues. However, even if this argument was eventually considered well founded, the impact could be limited only to two counts of sexual assault.

The grounds of appeal related to the similar fact evidence, the severance of counts and the admission of hearsay evidence will require review by the Court of the trial judge’s exercise of discretion.

A high degree of deference must be given to her decision on these issues. [4] The same intervention criteria will also apply to her weighing of the evidence and of the witness credibility. [5] Some of these grounds of appeal are related to only one count. [ 15 ] The review of the various interlocutory decisions as well as of the trial judge judgment on the merits allows the reader to understand the reasons for concluding as she did.

Without expressing an opinion on the merits of the appeal, I am not prepared to conclude that “the strength of the grounds are clearly favourable” [6] to the Applicant to obtain an acquittal on each and all of the four counts of sexual assault even if the grounds of appeal are not frivolous and merit the attention of the Court as conceded by Respondent. [ 16 ] Accordingly, Applicant has convinced me that the first condition is satisfied. Paragraph 679(3)(

b) Cr.c. [ 17 ] With regard to the second factor – that he will surrender himself into custody –, Applicant relies on the long period of time between arrest and sentencing while he was free on bail without any contravention of the conditions of his release. He was present in court each time required, including following the guilty verdict on October 21, 2014. He voluntary surrendered into custody following the sentencing judgment on December 16, 2015. Applicant indicates his readiness to increase the cash deposit by $10,000 as a guarantee of the conditions of his release. On balance, the second ground of paragraph 679(3) (

b) Cr.C. is satisfied as conceded by Respondent. Paragraph 679(3)(

c) Cr.C.

[18] In addition to these two first factors, Applicant must satisfy the third branch of the test under 679(3) Cr.C. - i.e. that the publicinterest does not require his detention is meet. As Justice Doyon wrote in J.V. v. R.[7]: [6] Il va de soi que l’appelant doit démontrer davantage que le simple respect des deux premières conditions pour obtenir sa mise enliberté : R. c. Garneau, (QC CA), REJB 1997-04154, (C.A.).

Autrement dit, le troisième critère ne saurait être satisfaitpour la seule raison que l’appel n’est pas futile et que l’appelant se conformera aux termes de l’ordonnance. [19] This third factor demands satisfaction of two elements: the safety of the public and the public confidence in the administrationof justice given all the circumstances of the case at hand.[8] [20] While it is true that Applicant (who is now 48 years old) has no convictions prior to the offences herein or any chargessubsequent thereto, he was nevertheless convicted of sexual assaults on four randomly chosen victims and an assault on one of them,which occurred over a two and a half year period.

These are violent crimes. [21] Applicant no longer benefits from the presumption of innocence, nor does he have a constitutional right to interim release.[9]The commission of the offences demonstrated a propensity towards violence and aggression. The victims suffered a trauma as a result ofthe events.[10] Here is the

summary made by the trial judge in her sentencing decision : [45] Giovanni D’Amico committed very serious crimes. As a predator he lurked around city squalid looking for vulnerable sex-tradeworkers. He drove his truck prowling about searching for a prey. He would pick them-up bring them to (inaudible) areas, and forcedthem under duress. He would be very violent despite their supplications and cries. He would engage in brutal anal intercourses despitetheir begging and without using any condom. He would treat them like animals. He would use a harsh, humiliating and degradinglanguage.

He would throw them out of the car, quite often at night alone, hurt scared and half-naked. The victims were all sex streetworkers with drug or alcohol problems. They were very vulnerable, and would all very unlikely go to the police station to press charges,should something bad happen, nor be able to identify properly an aggressor considering their toxicology profiles. In relation with theaggression they suffered, they all have vivid memories of how scared they were to the point that one of them thought that she would die.I am talking about J.H. They were hurt physically or mentally or both.

Afterwards, they were all deeply shaken of what they had beenthrough. Some took some more drugs or alcohol, some fell into depression. Giovanni D’Amico committed sordid and foul crimes. [11] [22] A potential for violence was also observed in the psycho-sexual evaluation ordered for the purpose of sentencing. The risk ofcommitting another sexual offence was evaluated as weak to moderate[12] (two positive factors out of four), while a degree of hostilitytowards women was observed. However, that being said, I must take into consideration the limited value of this report (by the author’sadmission).

The actual offenses were not discussed, at the Applicant’s request, given the pending appeal of the convictions. In hersentencing judgment, the trial judge referred to this evaluation and said : [40] Taking my guilty judgement at page 15, with the results of the facts [of the psycho-sexual evaluation], you [Applicant] seem to bepart of a category that is called le sadique non manifeste. And the sadique non manifeste, « présente des délits planifiés sur des victimesprécises.

L’aspect sadique s’exprime uniquement sur un plan symbolique par une dégradation, un contrôle et-ou agression des victimessans considération pour la douleur infligée ». [23] Bearing in mind the ground of appeal seeking to exclude the DNA evidence, it remains that proof of his identity as theperpetrator of two of the sexual assaults (C.-M.F. and L.N.) rests on the DNA evidence.[13] Such evidence does not exist for the othervictims (J.H. and C.M.).

His guilty verdicts for all four victims rest on other evidence such as his license plate number, which wasidentified in three out of four events (L.N., J.H. and C.M.), and similar fact evidence (C.M.). At least one of the victims (L.N.) positivelyidentified the Applicant and the evidence seems to support this conviction without reliance on the DNA.

That specific conviction alonecarries a sentence of 2½ years imprisonment.[14] [24] Although no type of crime is excluded from a possibility of release pending appeal, the more violent the crime and longer thecustodial sentence imposed, the more likely the confidence of the public in the justice system would be undermined by release pendingappeal.[15] [25] The most favourable element regarding the public interest criterion, as emphasized by Applicant, is that he had been free on bailwithout incident during the 88 month period between arrest and sentence.

On this basis, Applicant asserts that the trial judge refusedimmediate incarceration upon the pronouncement of the guilty verdicts as requested by Respondent under paragraph 523(2)(

a) Cr.C.,being of the opinion that: [5] It is difficult to understand how the public confidence in the administration of justice will be undermined by the continued release ofan offender who has demonstrated that he is not a threat to public safety and does not pose a risk of flight nor interference with theadministration of justice.

So, having that on my mind I decided not to cancel bail.[16] [26] Although this is a factor that I need to take into consideration[17], I am of the opinion that it is not a decisive one given all theother circumstances of the present case. [27] Indeed, it must be noted that the trial judge’s decision appears to erroneously conflate public confidence in the administration ofjustice and public safety.

Also, in considering an application for revocation of bail after the verdict and pending the sentence, the trialjudge must be mindful of elements having no bearing on the analysis under paragraph 679(3) Cr.C.[18] In addition, it is the Crown whobears the burden to establish legitimate concerns to justify revoking bail. In any case, the test on appeal is different, as it takes intoconsideration the public interest of which public safety is but one of the factors. [28] Moreover, the trial judge did not have the benefit of the psycho-sexual evaluation when she dismissed Respondent’s motion forrevocation of bail[19].

I underline that a potential for violence and hostility towards women were observed by the author of that report. [29] This being said, Applicant’s bail history is a factor speaking in favour of interim release. However, in view of all thecircumstances, I am of the opinion that his motion for interim release should be dismissed. Paragraphs 679(3)(

a) Cr.C. and 679(3)

(

c) Cr.C. are interrelated: “ l’importance devant être accordée au critère de l’intérêt public est inversement proportionnelle aux probabilités qu’un pourvoi soit accueilli ” [20] . Here, grounds for appeal are arguable but not in my view (at this stage) strong or compelling.

Given the circumstances of the offences, their gravity, the violence shown towards his victims [21] and his psychological evaluation, I am of the view that a member of the public, aware of the file under appeal, and fully appreciative of the rules applicable under our system of justice, would lose confidence in the administration of justice should Applicant be released pending the adjudication of his appeal. FOR THESE REASONS, THE UNDERSIGNED: [ 30 ] DISMISSES the motion for interim release. MANON SAVARD, J.A. Me Philipe G.

Knerr Schurman Longo Grenier For the APPLICANT Me Anne Gauvin The Director of Criminal and Penal Prosecutions For the RESPONDENT Date of hearing: January 7, 2016