2021 QCCA 809, 2021 QCCA 809

Salem c. R. 2021 QCCA 809 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007570-219 ( 500-73-004100-141 , seq. 002) MINUTES OF HEARING DATE: May 14, 2021 THE HONOURABLE FRÉDÉRIC BACHAND, J.A.

APPLICANT COUNSEL Fadi Salem Mtre Robert Israël ( Battista Turcot Israel ) By videoconference RESPONDENTS COUNSEL attorney general of canada HER MAJESTY THE QUEEN Mtre MATHIEU STANTON ( Service des poursuites pénales du Canada ) By videoconference attorney general of quebec Mtre JEAN-YVES BERNARD ( Bernard, Roy (Justice-Québec) ) By videoconference DESCRIPTION: Motion for leave to appeal from a sentence imposed on May 12, 2021 by the Honourable Salvatore Mascia of the Court of Québec, Criminal Division , District of Montreal (Sect. 675

(1) b) Cr. C. and art. 23 and following Rules of the Court of appeal in Criminal matters ) . Motion for release from prison (Sect. 679

(1) Cr. C. and art. 31 Rules of the Court of appeal in Criminal matters ) .

Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING 13:23 Commencement of the hearing. Identification of counsel. Submissions by Mtre Israël. 13:33 Submissions by Mtre Stanton. 13:34 Exchanges between by the parties concerning the conditions to release. 13:37 BY THE JUDGE: Judgment – see page 3 Conclusion of the hearing. Mélanie Camiré, Clerk at the hearing JUDGMENT [ 1 ] The applicant, who was found guilty of conspiracy to possess and possession of heroin for the purposes of trafficking, seeks leave to appeal the sentence of two years less a day that was imposed by the trial judge ( section 675(1) (

b) Cr.C . ). Although he determined that a conditional sentence combined with a significant number of hours of community work would have been more appropriate, the trial judge held that such a sentence was unavailable given

section 742.1(

c) Cr.C. and the Court’s decision in R. c. Perry . [1] [ 2 ] The applicant is also asking to be released from custody pending the determination of his appeal ( section 679(1) (

b) Cr.C . ). He argues that his release is justified in light of the duration of the sentence, the irreparable prejudice that he would otherwise suffer, the fact that he is currently employed, as well as the fact that he was released from custody during his trial and that he complied with all the conditions that were imposed on him. [ 3 ] Neither application is contested and the parties are in agreement as to the conditions of the applicant’s release. [ 4 ] Given the proposed grounds of appeal — one of which asks the Court to reconsider its holding in Perry regarding the constitutionality of

section 742.1 C.Cr. , notably in light of the Ontario Court of Appeal’s decision in Sharma [2] —, I am of the view that leave to appeal ought to be granted. [ 5 ] The application for release from custody is also well founded. My review of the record leads me to the conclusion that the conditions set out in section 679(4) Cr.C . are met. The appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if the applicant remained in custody. I am confident that the applicant will surrender himself into custody in accordance with the terms of the order.

Finally, I believe that “a person […] who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values” [3] would conclude that the applicant’s detention is not necessary in the public interest.

FOR THESE REASONS, THE UNDERSIGNED: [ 6 ] GRANTS the motion for leave to appeal; [ 7 ] AUTHORIZES the applicant to appeal from the sentence imposed by the Court of Québec on May 12, 2021; [ 8 ] DECLARES that the proceedings shall be undertaken on the basis of the fast-track procedure and that each party’s memorandum will be limited to 30 pages ; [ 9 ] DEFERS the file to the Clerk to determine the time limits for the filing of the memorandums as well as the date of a hearing for

a duration of 210 minutes (90 minutes for the appellant, 90 minutes for the Crown, 30 minutes for the Attorney General of Québec) ; [ 10 ] GRANTS the motion to be released from custody pending the determination of the appeal from the sentence imposed by the Court of Québec on May 12, 2021; [ 11 ] ORDERS the applicant’s release from custody on the following conditions:

a) keep the peace, be of good behaviour, and attend court whenever required;

b) reside at [...], Lachine QC [...];

c) not change addresses without prior authorization from the Court or the Crown;

d) abstain from seeking possession of his passport(

s) which are currently in the hands of the Court or the RCMP;

e) surrender any passport which may be in, or will come to be in, his possession;

f) abstain from applying for a passport;

g) if the appeal is dismissed or otherwise discontinued, surrender himself into custody within 48 hours or within any other delay determined by the Court or a judge of the Court;

h) abstain from communicating or attempting to communicate in any manner with Dereck A. Clarke;

i) report by telephone to the RCMP once per month on the first Monday of each month between 4 am and 11 pm by dialing 514-939- 8300 or 1-800-771-5401 or another number provided; [ 12 ] TAKES NOTE of the deposit of $2,500 by the applicant in the proceedings before the Court of Québec and maintains it as a guarantee for the present file. [ 13 ] ORDERS that the present undertaking be subscribed before a justice of the peace assigned for such purpose prior to the applicant being released from custody. FRÉDÉRIC BACHAND, J.A.