2014 QCCA 2343, 2014 QCCA 2343

Richard c. R. 2014 QCCA 2343 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005322-126 (500-01-052604-110) MINUTES OF THE HEARING DATE: December 19, 2014 THE HONOURABLE MARK SCHRAGER, J.A. PETITIONER ATTORNEY raynald richard Mtre Marco zuliani RESPONDENT ATTORNEY her majesty the queen Mtre ROBERT BENOÎT ( Criminal and penal prosecuting attorney ) In appeal from a judgment rendered on November 19, 2012 by the Honourable Justice Helene Morin of the Quebec Court, District of Montreal DESCRIPTION: Motion to be released from custody pending the determination of the appeal (Article 679(1) a and

(3) C.cr . and

article 53 1(1) R.Q.A.C.C.M .)

Clerk: Asma Berrak Courtroom: RC.18 HEARING 11 :57 Commencement of the hearing. Identification of counsel. Submission by Mtre Zuliani. 12:16 Submission by Mtre Benoît. 12:25 Reply by Mtre Zuliani. Suspension. 14:16 Resumption. Judgment-see page 3. 14:21 Conclusion of the hearing. Clerk BY THE JUDGE JUDGMENT [ 1 ] Applicant presents a Motion for interim release pursuant to s. 679

(1) a) of Cr. C. [ 2 ] Applicant was convicted on November 13, 2012 by Judge Hélène Morin, of the Court of Quebec, of the following:

i) aggravated assault, s. 268 Cr. C. ; ii) reckless discharge of a weapon, s. 244.2 Cr. C. ; iii) occupation of a motor vehicle with a prohibited or restricted weapon (s. 94(1(2(a))) Cr. C. ; iv) evading arrest (s. 249.1 (1)

(2) a) Cr. C. ; [ 3 ] He was not released pending trial. [ 4 ] Applicant was sentenced on June 7, 2013 to nine years of imprisonment less time served. [ 5 ] Applicant has the burden of satisfying the three criteria for release in s. 679 (3) Cr. C. , that is:

i) the appeal is not frivolous; ii) he will surrender himself into custody in accordance with the terms of the release order; and iii) his detention is not necessary in the public interest. [6] Applying the first criterion of s. 679 Cr. C., I note that the grounds alleged in the notice of appeal are

summary, if not generic: “

i) The Judge’s decision is unreasonable and cannot be supported by the facts; ii) That the judge erred in the application of the principles formulated in the matter R v W.(D.), (SCC), [1991] 1S.C.R.742; iii) That the applicant reserves the right to add reasons for appeal when the transcripts can be properly reviewed;”. [7] I have not seen the Applicant’s factum but I will assume that the grounds are developed, so that the appeal does not appearfrivolous. The lawyer for the Crown does not contest on this ground. [8] Concerning the second criterion of s. 679 Cr.

C., that the Applicant will surrender himself into custody, I note that Applicantwas not incarcerated prior to conviction. However, I underline that Applicant, at the present time, does not benefit from the presumptionof innocence.

I also note that the Applicant has convictions for failure to respect conditions of release and conditions of probation andthat his criminal record dates back to 2006 and includes weapons charges. [9] Concerning the third criterion “that his detention is not necessary in the public interest”, the nature of the crimes for whichApplicant was convicted is serious and attracted minimum sentences imposed by law in the case of the weapons charges (s. 244.2

(3) Cr.C.). [10] The length of sentence imposed by the judge is also indicative of the seriousness with which the judge viewed thecircumstances of the crimes. Applicant has a criminal record which includes, as mentioned above, failure to respect undertakings andconditions of release. Despite counsel’s able representations, these factors weigh against his release. [11] Applicant was convicted over two years ago and sentenced approximately sixteen months ago. He pleads that if he is notreleased at this time, the outcome of a successful appeal may be negated.

Counsel for Applicant pleads that the various delays in thepreparation and filing of Applicant’s factum are not attributable to Applicant. He adds that his appeal will not be heard for a long time. Inote from the “plumitif” however, that Applicant’s factum was indeed filed on August 25, 2014 and the Respondent is currently indefault to file its factum though I am told that this will be corrected shortly. Applicant is in a position to apply to have his case fixed forhearing on the merits before this Court.

This appears to be the solution to the argument he presents rather than interim release at thistime. [12] Given the severity of the crimes for which Applicant was convicted, the length of the sentence imposed and the fact that hisincarceration and the appeal can be dealt with on the merits within a reasonable period of time, it does not appear to the undersigned thata reasonably informed member of the public would consider the Applicant’s release appropriate. [13] Therefore, I conclude that he has not satisfied the third condition of s. 679 1)

c) Cr. C. [14] Accordingly, the motion is dismissed. MARK SCHRAGER, J.A.