2011 QCCA 634, 2011 QCCA 634

Unofficial English Translation L.G. c. R. 2011 QCCA 634COURT OF APPEAL CANADAPROVINCE OF QUEBECREGISTRY OF MONTREAL No: 500-10-004785-109 (500-01-019301-099) DATE: MARCH 18, 2011 PRESIDING: THE HONOURABLE MARIE-FRANCE BICH, J.A. L. G.APPELLANT / accusedv.

HER MAJESTY THE QUEENRESPONDENT / prosecutrix JUDGMENT [1] On September 25, 2010, a jury convicted the appellant of 11 charges relating to various acts of conjugal and family violence.On January 5, 2011, the Superior Court, District of Montreal (the Honourable Claude Champagne), sentenced the appellant to a total of30 months’ imprisonment (36 months less 3 months of detention between the verdict and sentencing, which were given double credit). [2] The appellant is appealing the convictions, and in this regard he obtained an extension of the deadline to appeal.[1] He nowasks to be released from custody pending the outcome of the appeal proceedings. [3] This application is governed by paragraphs 679 (1)(

a) and

(3) Cr. C.: 679.

(1) A judge of the court of appeal may, in accordance with this section, release an appellant from custody pending the determinationof his appeal if, (

a) in the case of an appeal to the court of appeal against conviction, the appellant has given notice of appeal or, where leave isrequired, notice of his application for leave to appeal pursuant to

section 678; …

(3) In the case of an appeal referred to in paragraph (1)(

a) or (c), the judge of the court of appeal may order that the appellant be releasedpending the determination of his appeal if the appellant establishes that (

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

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

c) his detention is not necessary in the public interest. … [4] Are the criteria, which are cumulative, prescribed by this

section met? The appellant has the burden of establishing that theyare. [5] Is the appeal frivolous? As noted above, the appellant has obtained an extension of the deadline to appeal. This means that ajudge of this Court has already ruled that the grounds of appeal are arguable, or serious if one prefers, in accordance with the standard setout in Lamontagne v. R., (QC CA), J.E. 95-28 (C.A.), which has since been applied consistently by this Court. Thatstandard is analogous to the one applicable to release from custody pursuant to paragraph 679(3)(

a) Cr. C. Commenting on this provisionin Guité v. R., 2006 QCCA 905 , [2006] R.J.Q. 2049 (C.A.), Doyon J.A. explained that:

[translation] [7] Moreover, the applicant is not required to prove that his grounds of appeal are well founded. It is sufficient for him to establishthat the issues raised are arguable (Garneau v. R., (QC CA), REJB 1997-04154, (C.A.)), and he is not required todemonstrate that his grounds have a strong chance of success (R. v. S. (J.T.) (1996), 1996 ABCA 374 , 4 C.R. (5th) 19 (Alta.C.A.)). [8] As Rochon J.A. noted in Duhamel v. R., (QC CA), REJB 2002-35700 (C.A.), it is inappropriate for thejudge seized of such a motion to rule on the merits of the underlying case.

That said, the judge must answer the question regarding thefrivolousness of the appeal because that is one of the factors to consider. This does not, however, in any way bind the bench that willhear the appeal.

Therefore, I need not rule on the actual strength of the grounds of appeal, which is the role of the judges seized of theappeal on its merits, but solely on the frivolousness of these grounds. [6] In the circumstances, it would be inconsistent to conclude now that the appellant’s grounds of appeal are frivolous,considering that a judge of this Court has already found them to be arguable. [7] The Crown asserts, however, that it is actually impossible to assess the grounds of appeal since the appellant did not join tohis application the relevant passages of the trial transcripts, without which the grounds of appeal cannot be assessed.

It asserts that this isparticularly true with respect to the third ground as we do not know why the judge dismissed the objection and that, consequently, it isimpossible to know whether the appellant has any reason to complain. [8] Further, according to the Crown, if these transcripts had been filed, they would not support what the appellant now asserts.In regard to the first ground (discussion between the judge and a prospective juror), the transcripts would show that the appellant nowadopts a position contrary to that he took before the trial judge.

With respect to the second ground, the transcripts would show that theappellant’s attorney declared that he was satisfied with the judge’s instructions to the jury and the manner in which the judge managedthe incident that he now criticizes. [9] In regard to the final ground of appeal, the Crown asserts that it lacks sufficient detail to communicate the actual issue. [10] In the circumstances, these arguments are not convincing, and the Crown’s assertion goes too far.

First of all, the grounds setout in the notice of appeal are sufficiently detailed to allow one to form a preliminary idea and appear serious on their face. While it istrue that the appellant must demonstrate that his grounds of appeal are not frivolous and must include support for this with hisapplication, he is not required to provide the equivalent of that which will be necessary to decide the appeal on its merits. Yet that seemsto be what the Crown is insisting on here.

Moreover, considering that the grounds of appeal were already found to be arguable at thestage of the extension of the deadline to appeal, the Crown could have supported its challenge more substantially by adding something todemonstrate the frivolousness of the grounds of appeal. What has been put forth in this regard is not sufficient. [11] The appeal appears arguable. The first criterion is thus met. [12] Will the appellant surrender himself into custody in accordance with the terms of the order of this Court, if applicable?This criterion is set out in paragraph 679(3)(

b) Cr. C., and the Crown does not dispute that it is met. The appellant was releasedthroughout the duration of the trial proceedings (approximately eighteen months) and was incarcerated only after the guilty verdict wasrendered. He complied with the conditions imposed on him and surrendered when so ordered without attempting to escape justice. Thereis nothing to suggest that he would behave differently now or that there is a serious risk in this regard. [13] Is the detention of the appellant necessary in the public interest? According to Takri v.

R., 2010 QCCA 1064, J.E. 2010-1060, this criterion [translation] “refers to both protection and safety of the public as well as public confidence in the administration ofjustice, having regard to the circumstances of the case (R. v. Rochon, 2008 QCCA 2142 (C.A.)”. [14] The Crown does not dispute that the first part of this criterion is met. The fact that the appellant was released without incidentthroughout the duration of the trial proceedings demonstrates that there is no threat, or at least no apparent threat, to the safety of thepublic, including that of the complainants.

With respect to the complainants, it should be noted that the appellant’s release from custody,if ordered, will be subject to conditions that the appellant will be required to strictly observe and that are intended to protect them.

It goeswithout saying that any deviation from these conditions would be sanctioned by the appellant’s immediate incarceration. [15] With respect to the second part of this criterion, however, the Crown claims that the appellant’s release from custody wouldlikely undermine public confidence in the justice system in view of the seriousness and the number of offences of which the appellant hasbeen convicted, as well as the aggravating factors listed in the sentencing decision. At this stage, the appellant no longer benefits fromthe presumption of innocence, and this should also be taken into consideration.

Also to be considered is the fact that the Crown, whichsought a seven-year prison sentence at trial, has been granted leave to appeal the sentence, which in its view is too lenient. [16] After careful consideration, the undersigned is not convinced by these arguments. Rather, it seems that an informed public,aware that the appeal is not frivolous and that the appellant will surrender himself into custody if so ordered, would accept theappellant’s release during the appeal proceedings. In Pearson v.

R., J.E. 90-832 (C.A.), Fish J.A. stated that: An informed public, fully appreciative of the rules applicable under our system of justice, would in my respectful view endorse theinterim release of the Appellant in this matter, bearing in mind that his appeal is on its face serious, that he appears likely to surrender ifhis appeal fails, certain to be unnecessarily punished if his appeal succeeds, and that it has not been contended that he will commitfurther offences if he is set free. [17] These words, written in 1990, remain true 21 years later and are particularly appropriate in this case.

It is true that the crimesare inherently serious, but in the circumstances, this alone cannot justify keeping the appellant incarcerated during the appeal. As DoyonJ.A. noted in Guité v. R., supra:

[ translation ] [6] In regard to the first, the crimes are serious, but the seriousness of the offence does not mean that the appellant must necessarily be incarcerated pending the outcome of the appeal. No offence, even the most serious, is excluded. [ 18 ] As noted above, at trial the Crown sought a seven-year prison sentence and requested that the appellant not be eligible for parole until after having served half of his sentence.

The sentence imposed by the judge, however, in what appears to be a carefully thought-out decision, was 36 months, which provides an indication of the objective and subjective seriousness of the crimes from his perspective. Moreover, the judge explicitly refused to order that the appellant serve half of his sentence before being eligible for parole.

The only indisputable element that we have in this case is that the trial judge presided the trial and heard the witnesses (the appellant did not testify), and the sentence that he imposed in full knowledge of the circumstances is presumed to be valid and just, which allows us to gauge the seriousness of the crimes at issue. That the Crown is appealing this sentence should not lead us to conclude that his release from custody should be refused.

Moreover, the fact that crimes of conjugal and family violence are at issue is not a bar to release, as demonstrated by the abundant case law in this regard. [ 19 ] Other factors must also be considered. The appellant has an occupation (although he is not currently employed). If he is released, he will have a fixed address. Most of all, he did not breach the conditions of his release during the proceedings before the Superior Court. He does not engage in a lifestyle that could be qualified as criminal (although he does have a criminal record dating back to 1999 for having used a stolen credit card).

He is certainly not an exemplary citizen, but the public will bear in mind that if his appeal is dismissed, he will serve his sentence. The same public will also bear in mind that if his appeal is allowed, he would have likely served a good part of this sentence unnecessarily. [ 20 ] The third criterion of paragraph 679(3) Cr. C. , like the first two, is also met.

The appellant should therefore be released from custody, subject however to certain conditions. [ 21 ] FOR THESE REASONS, THE UNDERSIGNED: [ 22 ] GRANTS the appellant’s application for release from custody; [ 23 ] ORDERS that the appellant be released from custody on the following conditions: - Keep the peace, be of good behaviour, and appear before the court when required; - Reside at ..., City of A, Quebec; - Not change addresses without the prior authorization of the Court or one of its judges; - Not leave the province of Quebec without the prior authorization of the Court or one of it judges ; - Inform the Court in writing of the name and contact information of his employer, within ten (10) days of the date of finding a job; - Appear at the police station closest to his residence, once a week on Wednesday, to report and sign the register, starting on Wednesday, March 23, 2011; - Not be within a 100-metre radius of the domicile or workplace of S.

O. or those of her immediate family members, except in the context of the dispute between the parties in the Superior Court and, in such case, always in the presence of his attorney or the attorney of Ms. O., and except in accordance and in order to comply with the orders of the Superior Court in regard to custody of the children or visitation rights, as applicable; - Abstain from communicating directly or indirectly with Ms. S.

O. and the members of her immediate family, except in the context of the dispute between the parties in the Superior Court and, in such case, always in the presence of his attorney or the attorney of Ms.

O., and except in accordance and into order to comply with the orders of the Superior Court in regard to custody of the children or visitation rights, as applicable; - Deposit his Canadian and Algerian passports with the registry of the trial court within 24 hours of his release from custody and not apply for another passport from any other authority whatsoever; - Formally abstain from possessing or carrying, in any capacity whatsoever, offensive or restricted weapons, or imitation weapons, including starter pistols and pellet guns, firearms, crossbows, prohibited weapons, restricted weapons, prohibited devices, ammunition, prohibited ammunition, explosive substances, knives (except in restaurants for a legitimate purpose), and bladed weapons; - On the eve of the hearing of the appeal by this Court, surrender himself by 6 p.m. at the latest to the Regional Reception Centre in Saint-Anne-des-Plaines (246 Montée-Gagnon, Saint-Anne-des-Plaines, Quebec).

The Court will decide at the hearing what is to happen next in terms of release from custody, if applicable. [ 24 ] ORDERS that these undertakings be given before a justice of peace designated for this purpose before the appellant is released from custody. MARIE-FRANCE BICH, J.A. Mtre Denis Poitras For the appellant

Mtre Michel Pennou Criminal and penal prosecutor For the respondent Date of hearing: February 28, 2011