2020 QCCA 592, 2020 QCCA 592

Xanthoudakis c. R. 2020 QCCA 592 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006187-163 ( 500-01-051050-117 SEQ. 003) MINUTES OF HEARING DATE: April 23, 2020 THE HONOURABLE BENOÎT MOORE, J.A. APPLICANT COUNSEL John Xanthoudakis Mtre Andrew Barbacki (Absent) RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre Matthew ferguson ( Director of Criminal and Penal prosecutions) (Absent) DESCRIPTION: Motion for judicial interim release ( S. 679(1) C.cr . et s. 31 of the Rules in criminal Matters ) .

Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING Continuation of the hearing held on April 23, 2020. The parties were excused from appearing in Court. BY THE JUDGE : Judgment – see page 3.

Mélanie Camiré, Clerk at the hearing JUDGMENT [ 1 ] On June 2, 2016, in Montreal, a jury presided over by the Honourable Mr. Justice Pierre Labrie of the Superior Court found the applicant guilty of one count of fraud ( s. 380(1) (

a) Cr.C . ), eight counts of forgery ( s. 367 (

a) Cr.C . ) and eight counts of using a forged document ( s. 368(1) (

c) Cr.C. ). On June 3, 2016, the applicant filed a notice of appeal that was amended on July 20, 2016. On July 6, 2016, Labrie, J. sentenced the applicant to 7 years and 11 months of imprisonment and the victim surcharge on all counts. [1] An application for leave to appeal the sentence was referred to the Court on August 3, 2016. [2] On November 8, 2016, the applicant was released pending the determination of his appeal of the verdict. [3] [ 2 ] On March 17, 2020, the Court dismissed the appeals against the verdict and the sentence. [4] On April 15, 2020, the applicant then filed a notice of application for leave to appeal to the Supreme Court. [ 3 ] Pursuant to ss. 679(1) (

c) and 679(3) Cr.C . , the applicant, who is currently detained at the Ste-Anne-des-Plaines Regional Reception Centre, seeks his release pending the determination of his application for leave to appeal and his appeal. [ 4 ] The relevant provision states: Release pending determination of appeal 679

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

c) in the case of an appeal or an application for leave to appeal to the Supreme Court of Canada, the appellant has filed and served his notice of appeal or, where leave is required, his application for leave to appeal. Circumstances in which appellant may be released

(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 released pending 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. [ 5 ] The applicant seeking bail bears the burden of establishing that each criterion under s. 679(3) has been met on a balance of probabilities. [5] [ 6 ] The respondent, quite rightly, does not contest the fact that the criterion (

b) as well as the protection of public safety, an element forming an integral part of criterion (c), have been satisfied. [ 7 ] The respondent, however, objects to the release from custody because, in its view, the grounds of appeal are frivolous, given that three judges of this Court unanimously dismissed the applicant's allegations. [ 8 ] Failing that, the respondent argues that the grounds of appeal are, at best, weak, a factor that must be taken into account in assessing the public interest criterion. [6] Likewise, it argues that the applicant already had the benefit of a review of the judgment by the Court of Appeal and that, in such a context, the principle of the enforceability of judgments must prevail.

Lastly, the respondent claims that the applicant is not questioning the facts or his role in what is one of the largest frauds in the history of the country, but is only invoking his right to be tried within a reasonable time. [ 9 ] Finally, the respondent asserts that these various elements are particularly important in the instant case given that the applicant does not have a right to appeal to the Supreme Court. At this stage, he has merely filed an application for leave which, according to the respondent, has little chance of succeeding.

In any event, assuming the Supreme Court were to grant leave, the applicant could always once again seek his release from custody. [ 10 ] The respondent argues that, for all these reasons, the application should be dismissed. [ 11 ] Is this so?

[ 12 ] On the first criterion, the Supreme Court noted, in R. v. Oland , that the "not frivolous" test is a very low bar. The applicant need only show that his ground of appeal would not necessarily fail. [7] [ 13 ] The applicant’s leave to appeal raises the following grounds: (1) the Court erred in failing to consider the period of 25 months of trial between the decision of the case management judge dismissing the applicant’s motion for a stay of proceedings and the end of the trial, (2) the Court erred in holding that the delay under

section 11(

b) of the Charter must fall within the category of "clearest of cases" in order to be qualified as unreasonable and (3) the Court erred in its application of the "Jordan Framework" to the judgment of the case management judge. [ 14 ] Without ruling on the merits of these grounds, at this stage, given the minimal standard for the first criterion, I cannot conclude that they are frivolous. [ 15 ] Nonetheless, aside from a consideration of the grounds of appeal for purposes of the first criterion, the case law establishes that the strength of those grounds may be considered for purposes of the third criterion, namely, the public interest. [8] Thus, grounds that, although not frivolous, are weak, bolster the enforceability interest of judgments, which then takes precedence over their reviewability. [ 16 ] I am of the view that this is the case in the matter at hand.

The grounds of appeal the applicant raises involve much more of an application to a specific case than a question of principle. Although I cannot characterize them as futile, they nevertheless have very little value on their very face and little chance of success. [ 17 ] Consequently, based on the guidance of the Supreme Court in Oland, I conclude that the enforceability of judgments must prevail here and that the application for release from custody must be dismissed. FOR THESE REASONS, THE UNDERSIGNED: DISMISSES the application for judicial interim release. BENOÎT MOORE, J.A.