2023 QCCA 984, 2023 QCCA 984

Akpahatak c. R. 2023 QCCA 984 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No: 200-10-003983-223 (635-01-016553-183) MINUTES OF THE HEARING (corrected August 1, 2023) WARNING : An order under

section 486.4 of the Criminal Code was issued directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way. DATE: July 27, 2023 THE HONOURABLE GENEVIÈVE COTNAM, J.A. APPELLANT COUNSEL JOHNNY AKPAHATAK Mtre CHRISTINE RENAUD RESPONDENT COUNSEL HIS MAJESTY THE KING Mtre HANNAH BRAIS HARVEY (Director of Criminal and Penal Prosecutions)

On appeal from a judgment rendered on April 5, 2022 by the Honourable Dominique Wilhelmy of the Court of Québec, District of Abitibi.

DESCRIPTION : Application for release from custody (section 679(1) Cr.C. ) Clerk at the hearing: Alexandra Fortin Courtroom : 4.30 – videoconference HEARING 9:07 Calling of the file and identification of the parties; The judge addresses the parties; Mtre Brais Harvey confirms that the Crown does not oppose the application for release and agrees with the conditions of release submitted by the parties; 9:08 Submissions of Mtre Renaud; Discussion between the judge and Mtre Renauld; Mtre Renaud continues; 9:10 Judgment; End of the hearing.

Alexandra Fortin, Clerk at the hearing JUDGMENT (corrected August 1, 2023) WARNING : An order under

section 486.4 of the Criminal Code was issued directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way.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 ] I am seized of an application for release from custody.

[ 2 ] On April 5, 2022, the appellant was found guilty of two counts of sexual assault against M.A. [ 3 ] On May 5, 2022, he appealed that judgment. [ 4 ] On July 24, 2022, he was sentenced to 480 days of imprisonment on the first count and 60 consecutive days on the second, the whole with a two-year probation period. [ 5 ] He seeks his release from custody pending the appeal. The application is not disputed. [ 6 ] I must therefore decide, based on the criteria set out in s. 679(3) Cr.C . , whether the appellant should be released at this stage. These criteria are the following: (

a) the appeal […] is not frivolous; (

b) the appellant will surrender himself into custody in accordance with the terms of the order; and (

c) his detention is not necessary in the public interest. [ 7 ] Neither the judgment in which he was found guilty nor the sentencing judgment have yet been transcribed. The appellant’s counsel indicated that the minutes of the hearing were requested in April or May 2022. The minutes, which were incomplete, were received in February 2023. The transcripts were requested in March 2023 and have yet to be received. Such delays are unacceptable.

That having been said, considering the grounds submitted on appeal – which refer mainly to fairness and to the conduct of the trial – in the context of the present case, the lack of a transcript is not an obstacle to the application for release from custody, and the appeal does not seem to be frivolous. Such a situation may, however, be detrimental to an appellant’s rights in other circumstances. [ 8 ] I am also convinced that the appellant will surrender himself into custody in accordance with the terms of the order.

Throughout the entire duration of the case in first instance, the appellant was on judicial interim release and always abided by the conditions of that release. He is 74 years old and in poor health. He has lived in Aupaluk for over 50 years. He is one of the elders and is highly involved in the community. He has a good support system around him, has been married for 47 years and lives with his wife and other family members. He has no prior convictions for similar matters. The presentence report assesses his risk of reoffending as moderate to low.

The appellant does not have a passport. [ 9 ] Public confidence in the administration of justice presupposes that well-informed members of the public have an appreciation of the work performed by the members of the jury, but understand that [ translation ] “the appeal process is an integral part of our country’s system of justice”. [1] While they are aware of the circumstances of the case, they are also aware of the applicable law.

They realize that the accused has been subject to conditions of release and has complied with them throughout the trial, that he presents no particular risk to public safety or risk of flight, and that he has been present in court throughout the proceedings.

In the instant case, apart from the guilty verdict – as a result whereof the appellant no longer enjoys the presumption of innocence – the circumstances seem to be similar to those that existed when he was released at the start of the proceedings. [2] [ 10 ] In these circumstances, I am of the opinion that the application for release from custody should be granted.

FOR THESE REASONS, THE UNDERSIGNED: [ 11 ] GRANTS the application for release from custody; [ 12 ] ORDERS the appellant’s release, subject to the following conditions: - Attend in Court when required; - Reside at [...], Aupaluk, Quebec, [...]; - Refrain from changing the address where he resides without prior authorization from the Court of Appeal or one of its judges; - Refrain from leaving the province of Quebec without prior authorization from the Court of Appeal or one of its judges; - Refrain from communicating or attempting to communicate, in any way, directly or indirectly, with the complainant; - Refrain from being in the physical presence of the complainant; - Refrain from going to the complainant’s home, place of work and/or place of study; - Refrain from bothering, following, spying on or harassing the complainant; - Refrain from referring to the complainant, directly or indirectly, on social media; - Abstain from possessing or carrying, in any capacity whatsoever, any offensive weapon, restricted weapon, or imitation of a weapon, including any starter pistol or pellet gun, any firearm, cross-bow, prohibited weapon, prohibited device, ammunition or explosive substance, or any knife (except in restaurants and for a legitimate purpose), the whole except for the purpose of traditional activities ; - Should his appeal be dismissed or should the judgement to be rendered by the Court result in a remaining period of imprisonment to be served, surrender himself into the custody of the prison authorities within 48 hours of the Court’s judgment dismissing his appeal or before the expiry of any time limit determined by the Court or one of its judges. [ 13 ] ORDERS that this amended recognizance be entered into before a justice of the peace designated for such purpose before the exception for traditional activities applies.

GENEVIÈVE COTNAM, J.A.