2017 QCCA 182, 2017 QCCA 182

Gardner c. R. 2017 QCCA 182 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006356-172 (500-73-003949-134) MINUTES OF THE HEARING DATE: February 6, 2017 THE HONOURABLE MARIE-FRANCE BICH , J.A. PETITIONER COUNSEL DEIDRE CHANTEL GARDNER Mtre STEVEN SLIMOVITCH RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre GILLES VILLENEUVE (Public Prosecution Service of Canada) DESCRIPTION: Application for judicial interim release (s. 679 Cr.C .) Clerk: Adam Scott Courtroom: RC.18

HEARING 9:28 Commencement of the hearing. Identification of counsel. 9:29 Representations by Mtre Slimovitch. 9:49 Exchange between the judge and counsel. 9:50 Representations by Mtre Villeneuve. 10:13 Exchange between the clerk and counsel. Reply by Mtre Slimovitch. 10:16 Exchange between the judge and counsel. Suspension of the hearing. 11:30 Resumption of the hearing. BY THE JUDGE: Judgment – see page 3. Conclusion of the hearing. (

s) Adam Scott Clerk BY THE JUDGE JUDGMENT [ 1 ] On December 22, 2016, a jury found the appellant guilty of one count of importing 32 kg of cocaine and one count of possession for the purpose of trafficking cocaine. She filed a notice of appeal in due time, on January 23, 2017. [ 2 ] After her arrest in 2013, the appellant was released upon conditions which she respected.

After the verdict was rendered, the trial judge released her subject to certain conditions that were modified twice in January 2017 and were also respected. [ 3 ] On February 1, 2017, the judge sentenced the appellant to seven years of imprisonment on the first count (import), with a credit of thirty days for pre-trial detention, and five years of imprisonment to be served concurrently on the second count (possession for the purpose of trafficking). The appellant now seeks to be released pending the determination of her appeal. [ 4 ] I am of the view that the conditions set out in subs. 679(1)

a) and

(3) Cr.C. are fulfilled and that the appellant should be released. [ 5 ] The appeal is not frivolous. The respondent does not contest that this condition is satisfied. Considering what I have in hand and although the exact strength of the grounds of appeal is difficult to assess at this early stage of the case, two of them, at least, appear to be defendable (grounds 7-I and 7-V of the amended notice of appeal). The appeal, therefore, cannot be said to be frivolous ( i.e. it would not necessarily fail [1] ). [ 6 ] The appellant will surrender herself into custody in accordance with the terms of an order.

The respondent does not contest that this condition is also satisfied. There is no doubt that the appellant will surrender if ordered to do so. She has been on bail for the last four years, has always complied with her conditions and has surrendered when ordered to do so. There appears to be no risk of flight. [ 7 ] Her detention is not necessary in the public interest .

This condition is measured according to the risk of a threat to public security and the necessity to maintain public confidence in the administration of justice. [ 8 ] In the present case, the respondent does not dispute that the appellant’s release would not be a threat to public security. I agree.

As evidenced by the fact that the appellant has been at liberty for the last four years, complied with her conditions and was not incarcerated after the verdict, her release would indeed pose no such threat. [ 9 ] Considering the applicable principles [2] and the particular situation of the appellant, I am also of the view that confidence in the public administration of justice will not be undermined by the appellant’s release pending the determination of her appeal. [ 10 ] The offences that she was convicted of are certainly very serious and the sentence is severe. This, however, is a first conviction

for a person who has until then been a law-abiding citizen [3] as well as an asset to her community, and who is supported by her parents, her friends, her employer and a variety of organizations where she volunteers. [ 11 ] It is true that her two main grounds of appeal (grounds 7-I and 7-V of the amended notice of appeal) are debatable, in light of the applicable case-law, but not to the point where they can be described as “frail”, as suggested by the respondent. [ 12 ] Considering that the first two conditions for release and part of the third condition set out by subs. 679(3) are not contested, considering that strict release conditions will apply, considering that, should her appeal be dismissed, she will serve her sentence, and considering all the above-mentioned circumstances, I conclude, on balance, that reasoned and well-informed members of the public would not be perturbed by the appellant’s interim release and that public confidence in the justice system would not be shaken.

FOR THE AFOREMENTIONED REASONS, I: [ 13 ] GRANT the application for judicial interim release; [ 14 ] ORDER the release of the appellant, on the following conditions :

a) The appellant shall maintain her deposit of $10,000, already consigned to the Superior Court, as a guarantee that she will comply with the conditions set out hereinafter;

b) A recognizance in the amount of $50,000, without deposit, by Mr. Anthony Gardner and Ms. Elverita Gardner, as a guarantee that the appellant will comply with the conditions set out hereinafter;

c) The appellant shall keep the peace, be of good behaviour and attend court whenever required;

d) The appellant shall reside at […], Toronto, Ontario […] and not change address without prior authorization of this Court or one of its judges;

e) By exception to condition

d) hereinabove, when her father is on a journey outside Canada, the appellant will reside at […], Bowmanville, Ontario […], or at any address authorized by this Court or one of its judges;

f) The appellant shall be at the address indicated in condition d), or, by exception, the address indicated in condition

e) hereinabove, from 10:00 PM to 7:00 AM, except for work or church purposes and except when she is coming to Montreal to see her lawyer or attend court;

g) When in Montreal in order to see her lawyer or attend court, the appellant will stay in a hotel in the Montreal area and provide the name and address of such hotel to the RCMP, in advance, as well as her room number;

h) The appellant shall report to the RCMP detachment at Richmond Hill, Toronto, between 9:00 AM and 5:00 PM once a month, on Sundays (commencing on February 12, 2017), and sign the register;

i) When in Montreal in order to see her lawyer or attend court, the appellant shall report to the RCMP divisional headquarters at 4225 Dorchester Blvd., Westmount, on the same schedule;

j) The appellant shall abstain from: - having in her possession or using drugs or narcotics, except on a validly obtained medical prescription; - being in the presence of persons who use or sell illegal drugs or narcotics; - having in her possession and carrying for any purpose whatsoever offensive or restricted-use weapons or imitation weapons, including starter pistols and pellet pistols, firearms, cross-bows, prohibited weapons, restricted weapons, prohibited devices, ammunition, prohibited ammunition, explosive substances, knives (except in restaurants and for lawful purposes) and edged weapons;

k) The appellant shall not leave Canada;

l) The appellant shall surrender her Canadian passport and any other passport to the Registry of the Superior Court, District of Montreal, before being released, and not retrieve it or attempt to obtain another passport or any other travel document ; she shall also abstain from having in her possession any passport or other travel document;

m) The appellant shall abstain from communicating in any manner with her ex-boyfriend Richard (also known as James Walker and Chris Tucker), his cousin Tyrone or any other member of his family;

n) The appellant shall surrender herself into the custody of the Ste-Anne-des-Plaines Regional Reception Centre (246, Montée Gagnon, Sainte-Anne-des-Plaines, Quebec, J0N 1H0) on the day before the hearing of her appeal by this Court or within any delay prescribed by this Court at any time;

o) Should the appellant discontinue her appeal, she shall immediately surrender herself into the custody of the Ste-Anne-des-Plaines Regional Reception Centre. [ 15 ] ORDER that an undertaking of these conditions be given before a justice of the peace assigned to such matters, before the appellant is released.

MARIE-FRANCE BICH , J.A.