2020 QCCA 1668, 2020 QCCA 1668

Vdovin c. R. 2020 QCCA 1668 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-007016-197 ( 500-01-126232-153 ) MINUTES OF HEARING DATE: December 2, 2020 THE HONOURABLE STÉPHANE SANSFAÇON, J.A. APPELLANT Anatoliy Vdovin Unrepresented Absent RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre Laurent-Alexandre Duclos-Bélanger ( Director of Criminal and Penal Prosecutions ) Absent DESCRIPTION: Application for release (Section 679(1) Cr.C. ) . Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING Continuation of the hearing held on December 1, 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 May 3, 2018, the Honourable Judge Linda Despots of the Court of Québec, Criminal and Penal Division, District ofMontreal, found the applicant guilty of 13 counts related to the possession and trafficking of firearms and prohibited devices. On September 21, 2018, the applicant was sentenced to a total of ten years of imprisonment.[1] [2] On April 1, 2019, the applicant obtained leave to appeal on the ground that he was not represented properly during his trial.[2] [3] The applicant now seeks his release pending the determination of his appeal, pursuant to ss. 679(1) and (3) Cr.C.

He filed anaffidavit with his application in which he declared that he was not provided with the affidavit of his former lawyer (although, at thehearing, he declared that he now has it), nor his file, and that it took a long time before the transcript of the trial was completed (it nowis).

At the hearing, he added that he has no access to a computer, a printer or paper, although, apparently, he was not prevented fromfiling his application or a claim for damages (a civil matter) against the prison administration and the Attorney General of the province,of which he provided a copy to the Court. [4] I am satisfied that the first condition set out in s. 679(3) has been met here, but not the others. [5] No proof whatsoever was presented that would show that the applicant will surrender himself into custody when ordered.

Hewas not at liberty during the proceedings in first instance, nor since the judgment of Despots, J.C.Q.

Furthermore, he was convicted of anoffence of failing to comply with conditions in file 500-01-119980-156 and sentenced to serve 45 days in jail.[3] He has not convincedme that, in the circumstances, he presents no risk of flight and will surrender himself into custody if and when ordered to do so. [6] I am also not satisfied that the applicant's application for interim release meets the third condition set out in s. 679(3) Cr.C.,namely, that his detention is not necessary in the public interest, which is to be assessed according to the possibility of a threat to publicsecurity and the need to maintain public confidence in the administration of justice: [12] Ainsi que l'enseigne une jurisprudence constante, cette condition « vise à la fois la protection et la sécurité du public, de mêmeque la confiance du public envers l'administration de la justice, eu égard à l'ensemble des circonstances du dossier » (Takri c.

R., 2010QCCA 1064, paragr. 11). Dans le même sens, voir par exemple : Divito c. Canada (Ministre de la Justice), (QCCA), J.E. 2004-2034 (C.A.); Chevreuil c. R., 2005 QCCA 978; El Morr c. R., 2007 QCCA 1362; Girard c. R., 2008 QCCA 1267;Marleau c. R., 2008 QCCA 1804; Rochon c. R., 2008 QCCA 2142; Samoisette c. R., 2008 QCCA 2521; Kyling c. R., 2011 QCCA 1359(requête pour autorisation de pourvoi à la Cour suprême rejetée (C.S. Can., 2012-04-12), 34504); L.G. c. R., 2011 QCCA 634; Corriveauc. R., 2013 QCCA 401, 2013EXP-1001; Richer c. R., 2013 QCCA 692, J.E. 2013-768; Des Châtelets c.

R., 2013 QCCA 871, J.E. 2013-950 et jurisprudence y citée.[4] [7] As regards public security, it is worth noting the seriousness of the crimes of which the applicant was convicted.

However, thatin itself is not sufficient to conclude that he should not be set free during the appeal. [8] With respect to public confidence in the administration of justice, two principles must be considered: judgments need to beenforced, considering that the presumption of innocence does not apply at this stage; judgments, however, may be erroneous – this iswhy there is a right to appeal and why s. 679 Cr.C. exists – and need not be enforced precipitously, without regard to the specificsituation of the offender.[5] [9] In the present case, the seriousness of the crimes and the length of the sentence of imprisonment must be considered.

Moreimportantly, the sole ground of appeal raised by the applicant is the allegation that he was not represented properly during his trial,which resulted in a miscarriage of justice. This ground of appeal is strongly contested by his then lawyer, as appears in his affidavit datedJuly 24, 2020. I consider that this element weighs heavily in the balance against the applicant’s release pending the determination of hisappeal. [10] Therefore, considering all the circumstances described hereinabove, I believe that, on balance, the applicant’s detention pendinghis appeal is necessary.

FOR THESE REASONS, THE UNDERSIGNED: [11] DISMISSES the application for release pending the determination of the appeal.

STÉPHANE SANSFAÇON, J.A.