2023 QCCA 566, 2023 QCCA 566

Rose c. R. 2023 QCCA 566 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007996-232 (500-01-174340-189) DATE: April 26, 2023 BEFORE THE HONOURABLE MARTIN VAUCLAIR, J.A. ANDRE BRYAN ROSE APPELANT – Accused v. HIS MAJESTY THE KING RESPONDENT – Prosecutor JUDGMENT WARNING : The trial court made an order under s. 486.4(1) Cr.C . directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way. [ 1 ] For the reasons to follow, I am releasing the appellant pending his appeal, ANDRE BRYAN ROSE.

THERFORE, THE UNDERSIGNED: [ 2 ] GRANTS the motion of the appellant for release from prison; [ 3 ] ORDERS the appellant’s release from custody on the following conditions: 1. with a surety in the name of LORRAINE MAKSON (date of birth [...], 1953) who will pledge, without deposit, $25,000, for ensuring that the appellant follows the conditions this Court imposes upon him; 2. Attend court appearances when required; 3. Reside at [...] in Etobicoke, Ontario, and not change his address without prior authorization from the Court or one of its judges; 4.

Permit police officers to verify your presence at your address; 5. Remain in Ontario, except for periods of 12 hours before, during, and 12 hours after court appearances in Montreal; 6. Abstain from having in your possession or using drugs except with validity obtained medical prescription. 7. Do not apply for a passport or other travel documents; 8. Do not communicate in any way either directly or indirectly, by any physical, electronic or other means, with I. B. or members of her family; 9.

Do not possess any weapons as defined by the Criminal Code (for example, but not restricted to, a pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person); 10. Do not apply for an authorization, license or registration certificate for any weapon as defined by the Criminal Code ; 11. Do not be within 250 metres of any place where you know that any of I.

B. or members of her family live, works, goes to school, frequents, or any place you know any of them to be, except for required court appearances; 12. Do not be in the physical presence of anyone you know to have a criminal record or pending criminal case; 13. Do not be in any place where prostitution services are offered; 14. Abstain from being in massage parlours, bars where exotic dances are offered, or strip clubs;

15. Abstain from being in nightclubs; 16. Abstain from consulting websites linked to massage parlours or prostitution; 17. Have a copy of all these conditions with you at all time; 18. Surrender to the prison authorities within 48 hours of the withdrawal of the appeal or the rendering of the judgment of the Court dismissing the appeal, as the case may be, or before the expiration of such other delay as may be fixed by this Court or one of its judges. [ 4 ] ORDERS that an undertaking to adhere to these conditions be given by the appellant to a justice of the peace assigned to such matters before he is released.

MARTIN VAUCLAIR, J.A. Mtre Andrew Burgess For the Applicant Mtre Jean-Philippe MacKay DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the Respondent Date of hearing: April 26, 2023 Rose c. R. 2023 QCCA 566 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-007996-232 (500-01-174340-189) DATE: May 3, 2023 BEFORE THE HONOURABLE MARTIN VAUCLAIR, J.A. ANDRE BRYAN ROSE APPELLANT – Accused v.

HIS MAJESTY THE KING RESPONDENT – Prosecutor REASONS FOR JUDGMENT WARNING : The trial court made an order under s. 486.4(1) Cr.C . directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way. [1] On April 26, 2023, I released the appellant pending appeal, with reasons to follow.

These are my reasons. * Overview [2] On June 14, 2022, the appellant was convicted of several prostitution-related offences, including procuring and exercising control over a single victim, a young woman he first met in 2010, when she was 19 years of age. The crimes charged began in 2013 and lasted until 2018. The appellant was on probation from 2014 to 2016 for an unrelated offence.

[3] After a 9-day trial and after deliberation, the judge delivered a judgment of some 75 pages detailing the evidence and reviewingthe story of the complainant's life at the hands of the appellant. The appellant is right to point out that the case is essentially aboutcredibility. [4] On April 21, 2023, based on the Crown’s submission, the appellant was sentenced to 6 years’ imprisonment, less 11 days of pre-trial detention. As I understand it, this was not a joint submission per se, but the defence did not challenge the suggested sentence. One ofthe offences carried a minimum term of 4 years’ imprisonment.

The sentencing judge had the benefit of a presentence report, but did notdiscuss the content of the report, save for mentioning that it was considered. On the motion for release, neither party filed the report, andI conclude that it was neutral, neither aggravating nor mitigating. [5] The nature of the offences itself is serious. The Crown opposes the appellant’s release pending the appeal. Its only concern ispublic confidence in the administration of justice. It acknowledges that the appellant is not a flight risk and not a risk to public safety.

The Appeal [6] The appeal turns on four grounds based on credibility issues and on the insufficiency of the trial judge’s reasons.

Notsurprisingly, the appellant readily conceded that he will have an uphill battle in overcoming appellate deference on those issues butnevertheless argued that they are serious grounds in the context of the case. [7] The four grounds of appeal are: (1) the trial judge erred in law by taking judicial notice that the complainant’s demeanour wasconsistent with being a victim of the offences at issue; (2) the trial judge erred in law by rejecting a defence argument rooted in theevidence on the basis that accepting it would accord with stereotypes; (3) the trial judge erred in law by treating the complainant’srepetition of her allegations as enhancing her credibility; and (4) the trial judge erred in law by providing insufficient reasons on the issueof credibility. [8] The Crown contended that these grounds are weak and the crimes very serious, such that the appellant’s release would impairpublic confidence in the administration of justice.

Analysis [9] In any appeal against conviction, the appellant may avail himself of s. 679(3) Cr.C. so as to seek his release pending thedetermination of his appeal, regardless of the seriousness of the offence of which he has been convicted. The appellant may be released ifhe establishes, on a balance of probabilities, that: (

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

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

c) his detention is not necessary in the public interest: R. v. Oland,2017 SCC 17 , [2017] 1 S.C.R. 250, para. 19. [10] Release on appeal is no easier to obtain than at trial, since the legislature places the burden on the appellant, who is no longerpresumed innocent: Oland, supra, paras. 33-35. The Surety [11] The appellant's mother is willing to act as his surety. She stated that she will pledge, without a deposit, the sum of $25,000. Shefiled two affidavits. She is a law-abiding citizen, is retired from a conventional job and has sufficient assets, although the sum remainssignificant for her.

She understands her role and responsibilities with respect to compliance. She knows the circumstances of theoffences, is aware of her son's prior conviction, and attended the sentencing hearing in this case. The affidavits satisfy the requirementsof s. 515.1 Cr.C. and, in the absence of any objection, lead me to believe that she is a serious and committed surety. The Grounds of Appeal and Risk of Flight Criteria [12] The Crown did not directly challenge that the appellant has met his onus under the first criterion. I agree. The appeal is notfrivolous. Indeed, the threshold is low.

A frivolous appeal is an appeal without merit: Oland, supra, para. 41. I note that the appellantdoes not have to show that the grounds of appeal have a chance of success; they must simply be arguable: R. v. Xanthoudakis, 2016QCCA 1809 (Bich, J.A); R. v. Guité, 2006 QCCA 905, para. 7 (Doyon, J.A.). That is the case here. [13] The Crown conceded that the appellant will surrender himself into custody in accordance with the terms of the order, whichassumes that he will not flee and will surrender if necessary: Oland, supra, para. 21. Again, I agree.

The Public Interest Criterion [14] The appellant must show that the public interest does not necessitate his detention. The public interest has two components:public safety and public confidence in the administration of justice: Oland, supra, para. 23, adopting the analysis in R. v. Farinacci(1994), (ON CA), 86 C.C.C. (3d) 32, pp. 47-48 (Ont. C.A.). Public Safety [15] Public safety requirements for a release pending appeal are essentially the same as those governing the release of an accusedpending trial: Oland, supra, para. 24.

As Moldaver, J. noted, “there will be cases where public safety considerations alone are sufficientto warrant a detention order in the public interest”: Oland, supra, para. 27. However, “where the public safety threshold has been met byan applicant seeking bail pending appeal, residual public safety concerns or the absence of any public safety concerns remain relevantand should be considered in the public confidence analysis”: Oland, supra, para. 27.

In this case, there are no such concerns. [16] Again, and rightly so according to all the circumstances, the Crown does not argue that the appellant is a risk to others or to thevictim. There are no public safety concerns.

[17] It must be clearly reiterated that the crimes were serious – and the sentence certainly reflects that fact. The evidence, however,seems to show that the appellant abused an individual relationship and that the context of the offences is circumscribed, as opposed to amore extensive crime with, for example, multiple victims, where the offender acted in association with a gang or other organizednetwork.

Although the appellant may have benefited from the crimes he committed, he also submitted a detailed affidavit in which heexplains that he is employed, works as a tower hoist operator for a construction company and intends to live with his mother and herspouse. This serves as reassurance that he can legally provide for himself. [18] The appellant also has a criminal record dating back to 2014 for the offence of being unlawfully in a dwelling house, for whichhe received a suspended sentence with a 2-year probation order. Therefore, he was on probation during a portion of the offences chargedin the present case.

I raised that concern at the hearing, a matter the parties had not discussed at all in their pleadings. [19] The Crown acknowledged that neither the prior record nor the fact that the probation was in effect at the time are factors thataffect the public safety risk, but it argued that they must be factored in analyzing the public confidence criterion and that they operateagainst the appellant. I agree.

However, as I will explain below, I believe the surety alleviates that concern. [20] It should also be noted that the appellant has abided by his release conditions since the beginning of the process, dating back toOctober 2019. Public Confidence [21] In determining whether the detention of an appellant is necessary to maintain public confidence in the administration of justice,the Supreme Court invites appellate judges to be guided by the four factors enumerated by Parliament in s. 515(10)(

c) Cr.C.: Oland,supra, para. 31. They include: (1) the strength of the prosecution’s case, measured through the strength of the grounds of appeal; (2) thegravity of the offences; (3) the circumstances surrounding the commission of the offences; and (4) the fact that the accused is liable for alengthy term of imprisonment. [22] The “public” is a reasonable member of the public, “someone who is thoughtful, dispassionate, informed of the circumstances ofthe case and respectful of society’s fundamental values”: Oland, supra, para. 47; R. v. St. Cloud, 2015 SCC 27 , [2015] 2 S.C.R.328; R. v.

J.V., 2008 QCCA 2157, para. 7 (Doyon, J.A.). [23] The public confidence component requires a balancing of two competing interests. On the one hand, judgments are, in principle,enforced immediately when delivered; this is the enforceability of judgments interest. On the other hand, our law provides thatjudgments may be reviewed if they are flawed; this is the reviewability of judgments interest: Oland, supra, paras. 24-25. [24] Understandably, the importance of the errors asserted against the judgment weakens its enforceability.

Thus, the more thearguments exceed the requirements of the "not frivolous" test, the less enforceability should prevail. [25] In principle, enforceability is driven by the seriousness of the offence because, on its own, it often affects the risk that publicconfidence in the administration of justice will be undermined by release on bail pending appeal.

However, the seriousness of the crime,concerns about public safety and flight risks all play a role in weighing public interest in the enforceability of judgments. [26] Indeed, “the absence of flight or public safety risks will attenuate the enforceability interest”: Oland, supra, para. 39. [27] Here, absence of both flight risks and public safety risks lessens the enforceability interest. [28] The reviewability component is rooted in the reality “that our justice system is not infallible and that a meaningful reviewprocess is essential to maintain public confidence in the administration of justice.

Thus, there is a broader public interest in reviewabilitythat transcends an individual’s interest in any given case”: Oland, supra, para. 45. [29] In short, regardless of the seriousness of the crime or the public mood, an appellant may be released during appeal proceedings if,after a rigorous and objective exercise, the court finds that the criteria have been met.

In Oland, Moldaver, J. insisted that “for thepurposes of s. 679(3)(c), even in the case of very serious offences, where there are no public safety or flight concerns and the grounds ofappeal clearly surpass the ‘not frivolous’ criterion, a court may well conclude that the reviewability interest overshadows theenforceability interest such that detention will not be necessary in the public interest”: Oland, supra, para. 66.

Balancing the Enforceability and Reviewability Components [30] Balancing the enforceability and reviewability interest rests on the expertise and experience of the appellate judge, who mustnecessarily weigh several factors, including the length of the sentence, through the eyes, as mentioned earlier, of a reasonable member ofthe public, “someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamentalvalues”, while remembering that there is no precise formula for resolving the balance between enforceability and reviewability: Oland,paras. 47-49. [31] This is where, according to the Crown’s perspective of the case, the value of the grounds of appeal comes into play.

Indeed,“[o]nce over the [not frivolous] threshold, the applicant faces the question of the public interest”: R. v. Porisky, 2012 BCCA 467(Donald, J.A,), cited with approval in Oland, supra, para. 42. [32] When the crime is serious, there is a need to weigh the grounds of appeal.

Their strength is to be assessed beyond what a partialrecord may suggest and, as Wagner J.A., as he then was, reminded us, this must be done while avoiding deciding on the merits: R. v.Delisle, 2012 QCCA 1250, para. 52 (Wagner, J.A.). [33] The judge must assess the grounds of appeal in light of their general plausibility in law and the elements of the record on whichthey are based: Oland, para. 44.

[34] At this stage, in assessing the strength of an appeal, “categories and grading schemes should be avoided […] such as ‘a prospectof success’, ‘a moderate prospect of success’, or ‘a realistic prospect of success’: Oland, supra, para. 44. [35] As mentioned above, the Crown did not have a separate argument on the frivolousness of the grounds of appeal but argued thattheir obvious weakness, coupled with the seriousness of the offences, do not tip the balance in favour of reviewability of the judgment.Thus, enforceability must prevail to preserve public confidence in the administration of justice. [36] Again, the appellant contends that his grounds of appeal are serious and that since no issue is taken with the argument that thereis no risk of flight or risk to public safety, he should be released in view of all the circumstances and the surety offered by his mother. [37] The grounds of appeal raised by the appellant are not frivolous and, in my view, merit further consideration.

While the caseinvolves a credibility analysis – a question that commands appellate deference – the appellant will invite the Court to consider allegederrors of reasoning in the judge's credibility analysis. This a more objective question and is sometimes decisive. [38] Although the Crown made strong arguments that these grounds will not, in its opinion, carry the day for the appellant, it cannotbe said that they have no merit. In my view, the grounds surpass the “not frivolous” threshold.

The appellant points to excerpts from thejudgment that squarely engage some of these grounds, and this sort of error may be successful on appeal. [39] I am also satisfied that the presence of a surety will generally reassure the reasonable person and help maintain publicconfidence. It must be stressed that the presence of a surety is considered one of the most onerous forms of release: R. v.

Antic, 2017SCC 27 , [2017] 1 S.C.R. 509, para 67. [40] In particular, the presence of the surety substantially alleviates the concern caused by the fact that the appellant was on probationat the time of the facts underlying the charges.

It provides a strong safeguard for compliance, especially for the victim, who will thus beprotected against any attempt by the appellant to make contact again, even though – and this is also relevant – the appellant has notattempted to do so since his release at trial. [41] The conditions are also strict, and this fact helps to overcome the perception that public confidence would be undermined byreleasing the appellant. I agree with Doyon, J.A. that strict conditions of release not only protect the public, but also contribute tomaintaining public confidence in the administration of justice: R. v.

Ste-Marie, 2016 QCCA 1206, para. 14. I also agree with him that areasonable and informed member of the public accepts that an appellant has the right to challenge the decision, and remain at liberty inthe meantime, because the justice system has applied strict measures appropriate to the circumstances: R. v. Ste-Marie, 2016 QCCA1206, para. 15. [42] In sum, I conclude that the appellant has met the onus of showing that he satisfies all the criteria for release pending his appeal. Iset out the applicable conditions on April 26, 2023, when I granted the appellant’s release. MARTIN VAUCLAIR, J.A.

Mtre Andrew BurgessFor the Applicant Mtre Jean-Philippe MacKayDIRECTOR OF CRIMINAL AND PENAL PROSECUTIONSFor the Respondent Date of hearing: April 26, 2023